Teachers (Non-Government Pre Schools) (State) Award [2001] NSWIRComm 335

HEARING DATES: 09/03/2001; 09/04/2001; 09/05/2001; 09/06/2001; 09/07/2001; 11/12/2001; 11/13/2001; 11/14/2001 DATE OF JUDGMENT: 12/14/2001

NSW INDEPENDENT EDUCATION UNION Ms C Matthews

EMPLOYERS FIRST Ms T Marshall LEGAL REPRESENTATIVES: ASSOCIATION OF CHILD CARE CENTRES Ms B Kenneally, Solicitor SOLICITORS: Kenneally & Co Solicitors

JUDGMENT: - 42 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

MATTER NUMBER IRC 2261 OF 2000 TEACHERS (NON-GOVERNMENT PRE SCHOOLS) (STATE) AWARD Application by New South Wales Independent Education Union for a new award

MATTER NUMBER IRC 2262 OF 2000 TEACHERS (NON-GOVERNMENT EARLY CHILDHOOD SERVICE CENTRES OTHER THAN PRE SCHOOLS) (STATE) AWARD Application by New South Wales Independent Education Union for a new award JUDGMENT

1 These are applications for the making of two new awards, filed after the nominal term of the existing awards expired. The Union's applications seek various changes to conditions, as well as significant increases in salaries, which were opposed by the employers, who were represented in the proceedings by Employers First ('EF') and the Association of Child Care Centres ('ACCC').

2 The claim was amended during the course of the hearing, as the parties continued their discussions. The matters which finally required determination were claims for wage increases for both teachers and directors and in the award applying to long day care centres, claims in respect of public holidays and overtime. It was the position of both employer bodies that neither any increases in rates of pay or alterations in conditions were warranted on the evidence and that the claims should be dismissed. The EF put certain secondary positions, which I shall turn to in due course.

3 The claims were made in relation to teachers employed in certain preschools and long day care centres. The Union estimated that some 600 teachers were employed in preschools and 2000 in the long day care centres covered by those awards. Some of those were employed in privately owned long day care centres operated for profit. Others were employed in not for profit centres.

4 The claim for increases in rates seeks to establish rates similar to those provided by awards applying to school teachers in Government and some Catholic schools, with rates for teachers employed in long day care centres, some 4% higher. It is relevant to an understanding of the parties' respective positions as to this aspect of the claim to deal at the outset with the evidence as to the award history. I turn to that matter.

5 The need to consider the claims here advanced in the context of the relevant award history is an obvious one. Awards do not exist in a vacuum, but are the product of agreements and awards made in the past. The recent decision of the Full Bench in Re Corrections Health Service Nurses' (State) Award (No 2) [2001] NSWIRComm 58 demonstrates precisely this point. There one of the competing applications was rejected, the Full Bench observing at paragraph 16 that it had not been 'led to the view that it would be an appropriate exercise of discretion effectively to ignore history', which included not only agreements between the parties, but also awards of the Commission reflecting those agreements.

6 Here, the current awards were made by consent in 1999, with a one year life. A 5% wage increase was then agreed, phased in over the course of the year, together with various alterations in conditions. The agreement was reached on the basis of an acceptance by the employers that the Union remained free to pursue these applications. That agreement reflected a significant departure from a position which had been first agreed in 1970, namely that these teachers should be paid the same as those employed in schools. It was also a departure from the 1990 agreement, that teachers employed in long day care centres should receive 4% more. When the first award for these teachers was made by the Commission, by consent, in 1970, rates for both preschool teachers and those employed in long day care centres were fixed at 80% of those of school teachers, with parity phased in over the period until 1974. That parity was reinstated from time to time over the following years, until 1990, where rates 4% higher than those paid to salaried teachers was agreed for teachers in long day care.

7 It was not until 1999, when the parties could not agree to a reinstatement of that position, that these proceedings ensued. A comparison of rates for these teachers with those employed at the top of the 3 and 4 year trained salary scales, drawn from the award applying to teachers in Catholic schools, but which, it was common ground, also reflected rates applying to teachers in Government schools, as at the date of making of the1999 award was: Catholic schools 4yt $50,000 3yt $50,000 Preschools schools 4yt $44,465 3yt $42085 Long day care centres 4yt $46,242 3yt $43,766

8 That 1990 agreement was dealt with in special case proceedings heard by Bauer J. That agreement was a significant departure from the position first established in 1970, when the first award for teachers employed in the non-Government sector area was made by the then President, Beattie J, covering teachers employed in schools, preschools and long day care centres.

9 While over the years since then separate awards have been made for teachers employed by various employers in different parts of the non-Government sector, salary parity was maintained by agreements reached between these parties over the years until 1990, when rates for teachers employed in long day care centres, 4% higher than those applying in schools, was agreed. That position was maintained in the award to which the parties agreed in 1994 and 1995, which provided for phased increases of 3%, 1.9% and 5%, the last operating from October 1996.

10 The next award was agreed in 1999. Two increases of 2.5% were agreed, in March and September 1999, with the result that the award then made by the Commission fixed rates of pay lower than those fixed for school teachers, as appears above. Rates for school teachers had increased by some 11% in the meantime. Further phased increases of 16% were later agreed for school teachers in 2000.

11 The wages claim, here advanced properly understood, seeks to restore the position agreed by the parties in 1990. If the Union's claim succeeds, rates for teachers in preschools will again equate those employed in schools and those in long day care centres will be 4% higher. If the employers' position succeeds, when the last increase presently being phased in by agreement under the existing schools' awards takes effect in January 2003, the resulting differential will be: Catholic schools 4yt $58692 3yt $58692 Preschools schools 4yt $45577 3yt $43137 Long day care centres 4yt $47398 3yt $44861

12 It is thus that the Union seeks significant increases of up to 26% phased in over the life of a 3 year award. There are also separate claims advanced in relation to directors, who are paid an additional allowance, dependent upon the size of their centre, to which I will return.

13 This, on the Union's case, would be a result which would maintain the differential recognised since 1990 between the parties to reflect two significant differences in conditions between those working in these two areas. The first being that teachers in long day care centres work 38 hours per week, compared to preschool teachers, whose hours are not fixed, but who work in preschools which operate during hours between 9am and 3pm. The second difference being that teachers in long day care centres work 38 weeks of the year, while those in preschools are not required to teach during the 10 weeks of holidays during the year, which mirror those of schools.

14 It is convenient to note that neither employer objected to the maintenance of this differential. It was opposition to any increases which was the point of the cases which they advanced.

15 This is the first occasion upon which the Commission has been called upon to arbitrate rates of pay for these teachers. The last occasion when the value of their work was considered was in 1990, in the special case proceedings where the parties presented their agreement to Bauer J. His Honour was then also considering two awards which are not before the Commission in this case - applying to the employers, the Kindergarten Union and Sydney Day nurseries. At p 2-3 of the 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.'

16 That observation was made in the context of the submissions which the parties then advanced, including that the agreement was a genuine structural efficiency exercise, designed to create an achievable career path for teachers and to provide them with an incentive to remain in teaching, rather than seeking employment as non-teaching administrators, together with recognition of work value changes. A 35% increase in directors allowance was provided for, as well as additional steps on the teaching scales. The parties then addressed developments in the schools area, including in Queensland, and in relation to Government preschools. Emphasis was placed upon the retention of separate classification scales in the awards, as opposed to the combined scales which had recently been agreed for schools. The result of this aspect of the agreement was that 3 year trained teachers were not granted access to salary increases formerly only available to 4 year trained teachers. (That distinction is one which has been maintained by the parties ever since.) All parties then also made submissions as to the public interest of the agreement which they had made.

17 It is against this background that the parties' respective cases are now advanced. I have dealt with this award history in some detail at the outset, not only given the respective cases advanced but also because the ACCC and the employers represented by EF seemed to be entirely ignorant of it, leading evidence from witnesses contrary to it, those witnesses conceding their lack of knowledge about such matters when the history was put to them in cross examination. The witnesses called, including Mrs Bardetta the ACCC's President, and Mr Daley, its Treasurer, as well as Ms Kynaston and Mr Alchin, all understood that these teachers employed in the past had always been paid less than teachers employed in schools. In cross examination, when the undisputed history of the award was put to them, they each accepted that their understanding as to these matters was incorrect.

18 Given that a not unimportant aspect of the case advanced by the employers was the inappropriateness of the comparison which the Union sought to draw between the work of teachers employed in schools, especially in the early years of children's schooling, and that of teachers employed in preschools and long day care centres, an apparent ignorance of the relevant history on the part of these employers, was rather troubling. The explanation for that cannot have been, as Mrs Bardetta suggested, the ACCC's former representation. Like the EF's predecessor, the Employers' Federation, which then represented it, the ACCC was a party to the 1990 agreement, at a time when Mrs Bardetta was a member of the executive. It appears that the employers have failed to have regard to their own past agreements. For many years it was agreed that the work here in question should be rewarded at least on the same basis as teachers in schools, higher since 1990 for long day care teachers. Rather than never having been the case, it seems to have been an agreed position which persisted from 1970 and was in reality only abandoned in 1999.

19 Having touched upon one difficulty in the evidence led by the employers, it is convenient at this point to note that there were others, which I will deal with at different points below. It is not unusual of course, in contested arbitrations such as this, for parties to call evidence from people who disagree with each other about whether changes have taken place, or if they have, whether such changes have affected the value of the work performed or have otherwise impacted on rates which are or should be paid. In this case however, the case advanced by the employers went significantly further.

20 While the employers opposed the increases in rates sought in the applications, they made no application themselves to vary the awards in question, seemingly content that they continue to operate undisturbed. Despite this, and in order to support its opposition to the claims advanced, evidence was called by the ACCC from witnesses who called into question the appropriateness and relevance of the existing award arrangements.

21 Mrs Bardetta, for example, gave evidence that teachers employed in long day care centres were overpaid; that the existing award structure, which like other awards which regulate the employment of teachers in both the Government and non-Government sectors and in both schools and other early childhood centres, requires the payment of increasing salary to teachers holding higher educational qualifications and with greater experience, was inappropriate; that neither such qualifications nor experience warranted additional payment; and that the value of the work that teachers performed in long day care centres was no higher than the value of the work which lesser qualified child care workers employed under the Miscellaneous Workers' Kindergartens and Child Care Centres (State) Award performed, they being entitled to significantly lower rates than those paid to teachers.

22 It is convenient at the outset to record my rejection of these views. Were an application to be made by the ACCC to vary the award for teachers employed in long day care centres to reflect such views, there would be a considerable onus falling upon the ACCC to make out such a case. In the Pastoral Industry State Award, (recently applied in Re Corrections Health Service Nurses' (State) Award), it was observed by the Full Bench, for example at paragraph 77, that existing award conditions are not immutable "in the case of contested proceedings, if a case is made out on the evidence that the award conditions 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." At paragraph 114, the Full bench went on to observe: In our view, the fact that an award contains current conditions of employment, properly leads to the inference that, either as the result of the Commission having accepted an agreement which the award parties have reached in the past, or as the result of an arbitration, those conditions were awarded in conformity with the obligations imposed upon the Commission by s10 of the Act and its predecessors. It follows that some positive demonstration of why such a condition sought to be removed no longer provides fair or reasonable conditions of employment must be provided on the evidence, before the Commission will act to remove them, particularly over the objection of another award party or parties.

23 Here, the ACCC did not attempt to make such an application or to meet the onus which would fall upon it if it did. Rather, it argued that the changes relied upon by the Unions should not lead to any wage increases, relying upon the evidence it had led, which included that teachers were already overpaid. The inescapable fact is that the current awards, including their existing structure and rates of pay, not only reflect agreements which the award parties, including the ACCC itself, have reached over many years, but also the views reached by the Commission in the cases which the award parties have put forward. Those views were, of course, that the awards made reflect fair and reasonable conditions of employment. I am not prepared in this case to approach the questions which here arise for determination from any other starting point. In so far as Mrs Bardetta's evidence called this position into question, it must be rejected. I am further fortified in that conclusion given the employer's ignorance of the relevant award history, as I have earlier outlined.

24 It is convenient to make two other observations at this point. The first is that the qualifications which 3 and 4 year trained teachers covered by these awards hold also generally equips them for employment in schools, for children of up to 8 years of age. The second is that there are a number of other awards which apply to teachers employed in other preschools and long day care centres. They include: - teachers employed in preschools attached to Government schools, as part of the disadvantaged schools programme, to whom the Crown Employees (Teachers in Schools and TAFE and Related Employees) Salaries and Conditions Award applies. - teachers employed in preschools attached to non-Government schools to whom the Teachers (Independent Schools) (State) Award 2001 applies. - teachers employed in long day care centres under the Teachers (Independent Schools Early Childhood Service Centres Other than Pre-Schools) (State) Award. - teachers employed by SDN Children's Services Inc in long day care centres to whom the SDN Children's Services (Inc) Early Childhood Long Day Care Centres (State) Award applies. - teachers employed in long day care centres attached to TAFE colleges, to whom the NSW TAFE Commission Teachers (TAFE Children's Centres) Salaries & Conditions Award applies. - teachers employed in long day care centres operated by local Government, to whom the Local Government (State) Award applies. - teachers employed in pre-schools and long day care centres operated by KU Children's Services under the Teachers (KU Children's Services) (State) Award. - teachers employed by Catholic employers in pre-schools and long day care centres under the Teachers (Catholic Early Childhood Service Centres and Pre-Schools) (State) Award.

25 The rates of pay fixed by these various awards for teachers holding similar qualifications varies. Given the structure of the Local Government Award, which provides for rates of pay at minimum entry levels and requires individual councils to each operate salary systems providing for additional rates of pay, it proved impossible for any evidence to be obtained as to such rates. It was undisputed however that the teachers employed under the awards here in question are the lowest paid, having regard to all of the other awards.

26 In the Union's case evidence was called from Verena Heron, Officer, NSW Independent Education Union; Dr Jennifer Sumsion, Senior Lecturer at the Institute of Early Childhood, Macquarie University; Helen Inglis, Teaching Director/Authorised Supervisor, Baulkham Hills Preschool; Leo Prendergast, coordinator of UTS Child Care Inc.; Jean Mary Hardaker, Director at the Rainbow Street Child Care Centre; Elizabeth Warren, Director of the Sir Phillip Baxter Child Care Centre; Belinda Butler, early childhood teacher at North Ryde Community Pre-School Centre; Joy Lubawy, Pre-School Teacher at Campus Pre-School; Susanne McMahon, Pre-School teacher at Narrandera Pre-School; Maria Whitcher, Teacher/Director at Kiama Pre-School; Gabrielle De Re, Pre-School Teacher at Goonellabah Preschool Incorporated; Alison Connell, Long Day Care Director at Dapto Children's Centre; Alicia Flack, Early Childhood Teacher at Lady Gowrie Child Care Centre; Margaret Hammersley, Director/Authorised Supervisor at Salamander Child Care Centre; Sarah Hunt, Director, Carillon Avenue Child Care Centre, Teacher/Director and Authorised Supervisor, White Rabbit Child Care Centre and Teacher/Director and Authorised Supervisor, Magic Kids Early Learning Centre and Dr Jacqueline Hayden, Senior Lecturer Early Childhood Education, University of Western Sydney.

27 The EF called evidence from Judith Catherine Kynaston, Executive Director of the Country Children's Services Association of NSW Inc and Ian Laurence Alchin, Executive Director of Blacktown Kindergarten Association Incorporated.

28 The ACCC called evidence from Kay Lockhart, member of the executive Committee of the Association of Child Care Centres of NSW and Licensee of Emu Heights Day Care Centre; Vicky Skoulogenis, Vice-President of Child Care Centres of NSW and Licensee of All 4 Kids Kindergarten, Mulgoa Pre-School, Aacacia Cottage Kindergarten; Frances Bardetta, President of the Association of Child Care Centres of NSW and Federal President of the Australian Confederation of Child Care; Gordon Daley, member of the Executive Committee of the Association of Child Care Centres of NSW and ACCC's Treasurer; director of Parkview Child Care Centre Pty Ltd and All Aboard Day Care Centre Pty Ltd.

29 The application was a special case allocated to me by the President for hearing as a single member pursuant to s193 of the Industrial Relations Act 1996 ('the Act'), including as to the special case aspects. The claim was advanced in part under the work value principle. The special case and work value principles established in the State Wage Case 2001 (2001) 104 IR 438 provide:

Special Case Except for the flow on of test case provisions, any claim for increases in wages and salaries, or changes in conditions in awards, other than those allowed elsewhere in the principles, will be processed as a special case before a Full Bench of the Commission, unless otherwise allocated by the President.

This principle does not apply to applications for awards consented to by the parties, which will be dealt with in the terms of the Act, or to enterprise arrangements, which will be dealt with in accordance with the Enterprise Arrangements principle.

(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 classifications 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.

30 The onus falling upon the Union under the Special Case principle is well established - see for example Pastoral Industry (State) Award (2000) 104 IR 168 at 184. The onus to make out the case falls upon the applicant and the cost of the claim and the public interest also arise for consideration. Even if the cost of a claim is not negligible, the increases may however be granted if the Commission is satisfied that the public interest is met by the making of the order - see Teachers (Non-Government Schools (State) Award and Other Awards (Unreported; Fisher P, Sweeney J and Varnum DP; 17 August 1990).

31 The Union also relied upon the requirements of ss10 and 23 of the Act, while confirming that the Pay Equity principle established in accordance with the requirements of s23 of the Act was not relied upon. Those sections provide:

10 Commission may make awards The Commission may make an award in accordance with this Act setting fair and reasonable conditions of employment for employees.

23 Equal remuneration and other conditions Whenever the Commission makes an award, it must ensure that the award provides equal remuneration and other conditions of employment for men and women doing work of equal or comparable value.

32 It is relevant to keep in mind the nature of the special case mechanism provided by the Wage Fixing Principles. That was described by a Full Bench of the Commission in Re Crown Employees (Administrative and Clerical Officers) (State) Award and Other Awards (No 2) (1993) 52 IR 243 at 376: 'We do not accept the proposition advanced by the respondents that the provision may only be utilised in tandem with some other specific provision of the principles. Such a narrow construction would impose undesirably inflexible restrictions on the Commission. It would also be in conflict with the origins and development of the provision with successive series of principles, a matter to which we have earlier referred. In our view, the special cases section of the principles provides a mechanism whereby a claim for enhanced wages or conditions beyond those normally allowed under the principles may be brought before the Commission. The hearing of such a claim is to be conducted by the Full Commission (formerly the Commission in Court Session) thus emphasising the special nature of the case. It will be a matter for the Full Commission, after hearing the evidence and submissions, particularly relating to the matters relied on to take the case "out of the ordinary" and thus to make it "special", to decide whether the claim, in part or in whole, should succeed.'

33 The Union argued that the proper time for measuring any change in work which had here occurred, was from December 1994, when the first award after that made in the special case proceedings before Bauer J in 1990 was agreed. The employers submitted that change should be measured from the date mentioned in Bauer J's judgment - 1 October 1991 - and that the increases which had been agreed in 1994 and 1999 should be taken into account when determining the amount of increases to be awarded, were the view to be taken that any increases were warranted.

34 I take the view that the approach of the employers on this point is correct and proceed on that basis.

35 There was some debate between the parties as to what use could be made of evidence of award rates applying to other teachers. Having in mind the award history, which I have already outlined, I am satisfied that if a case is made out for increases in the rates of pay fixed by the award, it is necessary to have some regard to that evidence, in determining the amount of the increases to be awarded. This necessity flows from the requirements of paragraph (a) of the Work Value principle, which requires that consideration be given to 'relevant internal award structure' as well as 'external classifications to which that award structure is related' and from the need in a special case such as this, to guard against the possibility of flow ons.

36 That approach is consistent with that which I adopted in Crown Employees (National Art School Lecturers) Salaries and Conditions and Part Time/Casuals Rates of Pay and Conditions Award 1997 (Unreported, 18 December 1998) at p19 and in NSW TAFE Commission (TAFE Children's Centres) Salaries and Conditions Award (Unreported, 23 April 1999) at p29. It was also an approach adopted by the Full Commission in Re Crown Employees (Administrative and Clerical Officers) (State) Award and Other Awards (No 2) (1993) 52 IR 243 at p377, where reference was made to a consideration of movements in rates of pay in the Australian public service.

37 The parties made reference to the decision of the Industrial Commission in Court Session in Local Courts Anomaly Case [1989] AR NSW 638, for a variety of reasons. In so far as the employers submitted that it established a principle as to particular restraint to be exercised in relation to wage increases awarded in special case proceedings (see p646-7), I am satisfied that the case does not stand for such a proposition. The decision was later referred to by the Full Bench in Crown Employees (Administrative and Clerical Officers) (State) Award and Other Awards (No 2), in reviewing a variety of special case decisions (see pp336-340), both those concerning agreements brought before the Full Bench for approval under the then special case principle and those involving arbitrated decisions. Two things were apparent from that review. Firstly, that the decisions in question were made in accordance with the applicable Wage Fixing Principles established by State Wage Case benches, which were significantly different to those which now operate as the result of the 2001 State Wage Case decision.

38 That is apparent from a consideration of the preamble to the principles established in the State Wage Case August 1988 (1988) 26 IR 24 at 36, which provided: 'These principles have been developed with the aim of providing, for their period of operation, a clear framework under which all concerned - employers, workers and their Unions, Governments and tribunals - can co-operate to ensure that labour costs are monitored; that measures to meet the competitive requirements of industry and to provide workers with access to more varied, fulfilling and better paid jobs are positively examined; and that lower paid workers are protected. The principles provide that movements in wages and salaries and improvements in conditions - whether they occur in the public or private sector, whether they be award or overaward and whether they result from consent or arbitration - must fall within the level allowable in accordance with the State Wage Case decision of 1 September 1988. In considering whether wages and salaries or conditions should be awarded or changed for any reasons either by consent or arbitration, the Commission will guard against contrived arrangements which would circumvent these principles and their aims. For the purpose of these principles, "the Commission" shall include conciliation commissioners and conciliation committees.'

39 By way of contrast the preamble to the current principles provide: 'These principles have been developed with the aim of providing for their period of operation, a framework under which all concerned - employers, workers and their unions, Governments and tribunals - can co-operate to ensure that measures to meet the competitive requirements of enterprises and industry are positively examined and implemented in the interests of management, workers and, ultimately, Australian and New South Wales society. In exercising its powers and obligations under the Industrial Relations Act 1996 (the Act), the Commission will continue to apply structural efficiency considerations, including minimum rates adjustments provisions. Movements in wages and conditions must fall within the following principles.'

40 Those differences in approach reflect numerous developments over the intervening years, not the least of them being of course the different legislative schemes now in operation under the Act, when compared to the Industrial Arbitration Act 1940 ('the 1940 Act') or indeed, the intervening Industrial Relations Act 1991 ('the 1991 Act'). I will return to that matter below.

41 The second point to be drawn from the review of decisions in the Crown Employees (Administrative and Clerical Officers) (State) Award and Other Awards (No 2), is that the concept of wage restraint then underpinning the Wage Fixing Principles did not lead to the Full Bench, when considering appropriate levels of increases under the then special case principle, to confine itself to increases of 5%. Indeed, in the Local Courts Anomaly case itself, significantly greater increases were awarded.

42 Those approaches are consistent with that later discussed in Re Transport Industry (State) Award (1996) 95 IR 126 at 130-31: 'The approach adopted by the Full Commission in the Crown Employees case was that a case, if made out to be "special", may be determined according to its circumstances. That approach requires, in effect, that the Commission be satisfied that the case is not an ordinary one, but has special attributes which warrant its approval despite the restrictive considerations imposed generally by the principles of wage fixation. That does not mean that the Commission is precluded, in an appropriate case, from deciding that an award should be made over the objection of a particular employer or group thereof. Indeed, a special case does not require consent at all.

43 This approach has recently been applied in Re Social and Community Services Employees (State) Award [2001] NSWIRComm 274, where reference was also made at para 312 to the decision of a Full Bench of the Australian Industrial Relation Commission in Metal, Engineering and Associated Industries Award, 1998 - Part 1 (Print T4991 29 December 2000): 312 We are persuaded that this is a special case that warrants the granting if not in whole then in significant part, of the Union's claim. In that regard we note in addition to what has been observed earlier that a Full Bench of the Australian Industrial Relations Commission recently expressed a view as to what constitutes a special case within the meaning of the wage fixing principles. In Metal, Engineering and Associated Industries Award , 1998 - Part 1 (Print T4991, 29 December 2000) the Full Bench said: "In our view, "special case", as used in Principle 10, is not a self defining term. The identification of a special case is reserved to a Full Bench level of determination. It is not necessary or desirable to attempt to paraphrase that requirement into a set of principles, or a code of considerations for general application. A case by case approach is necessary. The circumstances of the Award and the industry in which it operates are of fundamental importance in determining whether the requirement is satisfied. In this matter, the special case requirement entails that the AMWU has the task of satisfying the Commission that there are sufficiently compelling reasons for awarding, as minimum rate conditions to apply across the industries covered by the Award, the substantive changes that it seeks. Should the AMWU satisfy that requirement, it will, in our view, have made out a special case in the circumstances applying to the Award."

44 I turn then to the cases which the parties sought to make out and the evidence led to support them.

45 The parties each prepared points of contention which were exchanged prior to the hearing. The cases later advanced altered somewhat during the course of the hearing. From the outset, however, the Union's claim for significantly increased rates for both teachers and directors was plainly put. Various improvements in conditions were not finally pressed. The two which were related to overtime and public holidays.

46 The Union indicated its preparedness to discuss with the employers various matters raised by them during the course of the hearing. I also raised with the parties a concern which had developed in relation to the award provision governing the employment of directors, and appointment of authorised supervisors, having in mind various matters which had emerged in the evidence. The parties agreed to discuss these matters further. No agreement emerged in relation to any of these matters.

47 Both awards provide rates of pay for 2, 3 and 4 year trained teachers. Two year training is no longer offered by educational institutions and only a handful of such teachers remain employed. The case thus concentrated upon the position of the 3 and 4 year trained teachers.

48 The Union identified the work value changes it would rely upon as:

· Changes in the relevant NSW Government Regulation, the Centre Based and Mobile Child Care Services Regulation No. 2 1996 ("The Regulation"). The Regulation applies to both pre-schools and long day care centres; · Development of new risk assessment process (all services); · Increased responsibility pursuant to child protection legislation (all services); · Increased number of special needs children (all services); · Increases emphasis on transition to schools · More accountability of teachers because of higher expectation by parents in relation to the development of their child and a greater willingness by parents to make complaints; greater sensitivity to litigation (for example in case of accident). · Greater professional expectation on teachers in development of curriculum - eg use of computers, developments of literacy, trialing of new curriculum · Greater role of child care centres in family support · More accountability of teachers because of higher expectations by parents in relation to the development of their child and a greater willingness by parents to make complaints; greater sensitivity to litigation (for example in case of accident) · Greater professional expectation on teachers in development of curriculum - eg. Use of computers, development of literacy in broader capacity, trialling of new curriculum. · Greater role of childcare centres in family support.

49 The Union's case was that the work of all teachers had been affected by these changes, but that those employed as directors had been most affected, so as to warrant the additional increases sought in their case. It was argued that access that teachers in some centres had to appointment to award promotional positions should not be used to discount the assessment otherwise properly made of changes in the value of teachers' and directors' work. It was relevant that the evidence led by the ACCC was that many long day care centres did not appoint teachers as directors but rather as authorised supervisors, to whom no additional payments were made.

50 It was contended that the changes satisfied the test established in the Work Value principle and that the rate of the increases sought were warranted, having in mind the approach to be adopted in special cases - see Crown Employees (Administrative and Clerical Officers) (State) Award and Other Awards (No 2), at p 376-7.

51 The history of wage fixing under the two awards was said to be relevant to an assessment of the claims made, particularly given the historical relationship between rates of pay for these teachers and those employed in schools. The Union did not seek any automatic payment of increases agreed or awarded for school teachers. Rather, it contended that the rates which such teachers received had to be considered in determining fair and reasonable conditions of employment for these teachers.

52 The difficulty in assessing the amount of increases to be awarded was acknowledged. Reference to the approach adopted by the Full Bench In re Crown Employees (Teachers Department of Education) Award [1970] AR 345 and In re Crown Employees (Teachers) Awards [1980] AR 910 and Teachers Non-Government Schools Case 1990, was urged upon the Commission, as illustrating how changes in the value of work of professional employees such as teachers had been approached by the Commission in past work value cases.

53 The increases sought were acknowledged as being considerable and hence it was accepted that they should be phased in over the life of the three year award sought. The claim advanced sought that the award should operate from the date of filing of the application. In its closing submissions the Union however accepted that it had not sought to make out a case establishing why there should be any departure from the usual approach, namely that increases should be awarded prospectively.

54 It was also argued that the size of the increases would be considered in the context of: · The fact that teachers have received only 5% increase in wages since 1996; · The fact that the claim was filed in the Commission in May 2000; the unavoidable delay in hearing has exacerbated the differential in wages between teachers in the early childhood sector and schools; · The fact that employers have, up until the commencement of hearings, opposed all wage increases and have still only offered pay rises reflecting State Wage Case increases; · The fact that employers budget regularly for pay rises and can accommodate wage rises if known in advance; · Increases sought are subject to phase-in; · That the evidence indicates the income of many employers has increased due to fee rises during a period when teachers received no pay rises and other staff received minimal increases. Further the cost of child care to parents has, in the case of long day care, been reduced because of increases in Child Care Benefit and other reasons. Pre-schools have continued to benefit for indexed Government funding. The union notes the evidence eof an employer witness, Ms Lockhart (p 301 of transcript, pt 35) that the cost of the Union claim (not phased in) would lead to a fee rise of $2.71 per day.

55 It was argued that the public interest required the granting of the increases sought. The essential role of early education and the importance of trained teaching staff was well recognised in Government policy and research. Particular reliance was placed upon the 'OECD Thematic Review of early Childhood Education and Care Policy', about which Dr Hayden had given evidence, and the key role of teachers in early childhood education recognised in "Towards Integration and Quality Assurance in Children's Services" authored by June Wangman, about which Dr Sumsion had given evidence. It was submitted that this role was also reflected in State Government policy, which required the employment of teachers in the industry.

56 The current position was that employers were finding it difficult to attract and retain qualified teachers, who were also qualified to teach in schools, which offered more generous pay and conditions of employment. It followed that the public interest was currently being frustrated by the awards' failure to provide wages and conditions which were fair and reasonable, given the skills and responsibilities inherent in the teachers' work.

57 The evidence as to similarities in the work of these teachers, compared with those employed in schools, was said to be: · That university qualifications such as a Diploma or Degree in Early Childhood Education equips a teacher to teach children of 0-8 years in both schools and early childhood services. · The teacher in early childhood has responsibility for the education and development of a group of approximately 20 children involving responsibility for programming and planning, identifying special needs and liasing with parents · That early childhood teachers seek to develop skills and knowledge in children based on or analogous to key learning areas in schools even though at present no formal curriculum is mandated in early childhood services; and · The legal requirement pursuant to the Regulation that a program be offered for children to stimulate and develop each child's social, physical, emotional, cognitive, language and creative potential and that is appropriate to the individual needs and development level of each child. Where a teacher is employed the teacher is responsible for ensuring that the program meets that requirement (either within a particular room or for the centre as a whole). · The teacher must program for each child as in individual and maintain observations on each child's development rather than for the group of children as a whole as occurs in a primary school; · Teachers in early childhood must address all aspects of a child's development not just cognitive; · A teacher in early childhood is support for the family and community in a broad sense; · Teacher in early childhood directly interact with parents on a day to day basis and there is no third party (such as a school principal or counsellor) to assist with problems or complaints of parents; · Teachers in early childhood have limited support from other professionals; · Teachers operate as a team leader with respect to supervision of staff

58 It was submitted that the case advanced by the ACCC, that early childhood teaching involves less skill and responsibility than that of primary teaching would be rejected, not only having regard to the evidence led by the Union, but also because not all of the ACCC's witnesses expressed such views. It was submitted that this aspect of the ACCC case was strongly influenced by a desire to minimise expenses for the operators of privately owned long day care centres, which had led to an untenable underestimation of the role of teachers.

59 It was submitted that there was little prospect of any flow on. The claims were based on the particular circumstances applying to teachers engaged in the early childhood services sector, not issues generally impacting upon employees in the teaching sector. Other awards applying to teachers employed in the early childhood sector were estimated to cover some 200 teachers. (This has to be understood as excluding teachers employed in Government preschools, who are covered by the same award as applies to teachers in schools and are already paid the rates here claimed). There were about 20 other employers bound by those awards. It was relevant that they had not intervened to express concerns about flow on and there was evidence as to rates of pay above those fixed by these awards already being paid by such employers, and by some employers covered by these awards.

60 As to the 4% differential between the rates fixed by the two awards, the Union sought its retention, but not if the result were to be that teachers employed in preschools were to be paid less than those employed in schools.

61 The claim was advanced in circumstances where the evidence established that costs to parents had fallen, as the result of Government subsidies. It followed that the cost of the claims would not be a basis upon which they would be refused.

62 The EF did not oppose the making of new awards, but took the view that the improvements claimed must fail, given the evidence, which was agreed to have failed to satisfy the Work Value and special case principles.

63 Reference was made to the Local Courts Anomaly Case, which described the wages system as requiring 'suppression of sectional interests in favour of wage outcomes acceptable to the principal of wage restraint'. It was submitted that claims of 26% increases did not satisfy this approach, nor were there any changes to the award agreed to enhance productively and efficiency or to ameliorate costs of the claim.

64 As to the identified changes, it was submitted that they either had not been made out on the evidence; had nothing to do with skill, responsibility or the conditions under which the work was performed and in some cases were changes which related to the responsibilities of licensees and would have no impact at all upon the work of teachers, but only that of directors, in cases where such responsibilities were delegated to them. In others, responsibilities under Regulations and legislation were submitted not to reflect new responsibilities, but even if that were not accepted, it was argued that any increases would be confined to the director's classifications. Given the significant increases awarded to directors allowances in 1990, it was in any event argued that no further increases were now warranted.

65 It was also submitted that many of the changes relied upon fell into that category of change which employees were expected to deal with in the ordinary course and were not such as to affect the value of the work.

66 In any event, the importance of early childhood education had already been recognised by the parties in the agreement reached in 1990, when the parties then endorsed the comments contained in the Committee of Review of New South Wales Schools, chaired by Sir John Garrick. Wider recognitions of this would not warrant wage increases now.

67 Comparisons were drawn between increases in award rates agreed since 1990 compared to those generally available under State Wage Case decisions, in the order of $10,071 for 3 year trained preschool teachers compared to $4,485.29 and for 4 year trained preschool teachers $11,668 compared to $4,384.24. The comparisons for long day care teachers were $11,892 for 3 year trained teachers compared to $4,485.29 and for 4 year trained preschool teachers $13,392 compared to $4,384.24. It was submitted that these agreed wage rises were an argument against further wage increases being granted, rather than for them.

68 The genesis of the 4% differential in rates between the two awards was also submitted to be important. Reference was made to the submissions then advanced for the Union: 'It has been revealed in negotiations the nexus between the school teachers salaries and salaries in early childhood area shall not now operate and agreed rates in this matter should reflect the fact that teachers in this sector whilst having the same qualifications and skills as teachers do, do different work and in some circumstances work under very different conditions. The ITA has tried to preserve that balance, that is whilst being aware there are childhood teachers who can teach in the infants' department of schools, that there should be some relevance in that fact. We have also tried to take on board early childhood education is different in pre-schools and also conditions in the long day care area is not only different from schools but very different from pre-schools.

69 It was also argued that the claim here advanced amounted to a classic case of leapfrogging, of the kind warned against by Bauer J. No reason for flow on of increases agreed in other consent awards relied upon had been established. It was noted that the Commission does not engage in the merits of such agreements, encompassing as they do a departure from the Wage Fixing Principles accommodated by the Special Case principle. Reliance was also placed upon the observations in NSW TAFE Commission Teachers (TAFE Children's Centres) Salaries and Conditions Award (Unreported, 23 April 1999) at 29, that the Commission does not impose consent arrangements upon objecting employers without good reason being established.

70 Here the relevance of wage deals for teachers employed in schools for teachers employed in the early childhood sector had not been established. Indeed, it was relevant that agreements had now for many years been reached solely in relation to this sector.

71 It was the estimate of EF that some 35% of teachers employed under these awards received the director's allowance. The basis of this estimate was not established however' and it appears somewhat doubtful, given all of the evidence, particularly that relating to teachers not appointed as directors but as authorised supervisors.

72 It was also submitted that this industry was very sensitive to cost increases, being a labour cost dominated sector, regulated as to staffing requirements, where revenue could only be raised by increasing fees to families, with consequential impact upon their ability to access these services. There were little or no overaward payments made and hence increased costs had to be reflected either in increased fees or reduction in licensing number. Reference was also made to findings made by Redman C in Miscellaneous Workers - Kindergarten and Child Care Centres (State) Award (unreported, 23 August 2000) at p 86: 'The inability of the Union and the employers to continue the traditional process of variation by consent is, on a review of the evidence, the result of the child care industry in New South Wales having reached a point where as a result of commercial pressures the employers require their employees to continue to submit to new award variations under the banner of "flexibilities" in order to cope with the inevitable cost impact associated in any increases in wages and allowances. Ms Kenneally, who in these proceedings acted for the Association of Child Care Centres of NSW, used the term "inelasticity in the market". In lay terms she was submitting that most of those persons in the community who rely upon the services offered in this industry have reached a point where their domestic budgets are unable to cope with any further increases in the cost of child care. The evidence presented to the Commission by witnesses in these proceedings confirms that to be the case with both anecdotal and statistical evidence confirming that parents and guardians have been withdrawing their children from professional child care centres for either part of the week or completely because of cost pressures. With the daily cost of attending a child care centre being of the order of $40 one can readily see that full-time child care costing about $200 per week is an impost with which many domestic budgets simply cannot cope.'

73 It followed that the public interest would be adversely affected by the grant of any increases. Problems of attraction and retention were not matters for the award - see Local Courts Anomaly Case at 645. Nor were flow on consequences confined to the particular industry in question. The magnitude of the claim here itself led to that possibility and undermined wage restraint. Even for this industry, it was relevant that Redman C in special case proceedings had awarded child care workers increases of $41 per week phased in by way of 2 instalments, 6 months apart when the employees had not received any increases for some 3 years in return for substantial cost offsets and structural efficiency measures.

74 Two alternatives were also pressed, in the event that the primary position was not accepted. The first, it must be noted, in response to a question which I raised, as to what EF saw as a practical outcome to the application for a new 3 year award, there having been no increases in award rates since 1999. The practical outcome proposed was the making of a one year award in which rates should be increased by reference to amounts available under the 2000 and 2001 State Wage Case decisions. How such an approach, which was submitted to be akin to that adopted by Redman C in the Miscellaneous Workers' Case, but otherwise without explanation as to its basis, was available consistently with principles could not be explained. It was, for instance firmly put that it could not be based upon the work value principle, because no necessary change had been demonstrated. Given the requirements as to absorption, it could also not be explained how it was an approach otherwise available under the current principles. (This approach was not supported by the ACCC and opposed by the Union.)

75 The other submission advanced by the EF, as a fallback only, was that in the event that the view was taken that there had been change in work demonstrated, it was only change which had affected the work of directors, rather than that of teachers. No submissions were advanced as to how any changes, if established, should be measured.

76 The ACCC supported many of the submissions of EF, which I do not here repeat. Its position was that no case had been made out for either changes in rates of pay or conditions, and that all the claims would be rejected.

77 It was argued that many of the changes identified were the responsibility of licensees of privately owned centres and did not affect the work of teachers, even though it might have impacted upon the work of directors employed in some community based child care centres.

78 Various of the changes flowing from new Regulations adopted in 1996 said to be but an attempt by Government to set down procedures which most centres already had in place. There were no resulting new responsibilities introduced and no change in the value of teachers' work. This, it was submitted, explained why the Union was not seeking the creation of any new classifications, as envisaged by the Work Value principle.

79 It was also urged that if it were concluded that any changes had occurred, they were confined to the work of directors, who were not engaged in privately owned centres. It was submitted to be unduly prejudicial and inequitable for private centres to have to bear the burden of increases which were unjustified in their circumstances.

80 The importance of early childhood education was also argued to have been already recognised by the parties in the special case in 1990 and could not lead to further increases now.

81 It was submitted that privately owned long day care centres were less able to absorb wage increases into their operational costs, than not for profit centres, which did not have to fund lease or mortgage payments which the majority of private centres bore. They also received exemptions or discounts in respect of various public utilities, rates and other expenses which private employers had to meet.

82 It was submitted in the ACCC's opening contentions, that if ACCC members 'had to fund the wage increase rise in line with the IEU's Applications, it is not a glib observation to say that in many such cases this will be "the straw which breaks the camel's back". Many such members may have no choice but to close their doors, which will not only deprive parents (often in depressed socio-economic circumstances), from being able to afford child care services elsewhere, but will also greatly depress the job market in this industry.'

83 I observe that this submission was not sustained on the evidence and not finally pressed, it being conceded that the ACCC had not set out to establish it on the evidence. That concession was made, I note in circumstances where Mr Daley, who had acquired a second long day care centre, agreed in cross examination that he had done so because the first one operated at a reasonable profit, Mrs Bardetta, who gave affidavit evidence which suggested that the long day care centre which she operated was financially unviable, revealed in cross examination that she had in fact some little time before sold the business as a going concern for $500,000.

84 The ACCC also submitted that the award incremental salary scales operated to 'reduce the commercial viability of centres employ teachers who have advanced to a certain step and beyond and that after step 3 or 4, most of its members cannot afford to engage such teachers'. It was argued that if the claim were granted, the job market would be further depressed, because centres would seek to reduce their licensed numbers below 29, at which point they were not obliged to employ teachers.

85 It was also argued that the economy was on a downturn, further exacerbating the inability of private operators to absorb fee increases. There was however no evidence led about such matters.

86 As to the public interest, it was argued that one of the major reasons centres were having trouble attracting teachers was that they could not afford to pay for those too far advanced on the existing scales. Experienced teachers were being costed out of the market, which was submitted to be to the detriment of the industry and its ability to provide optimum level of child development skills to the children within its care. This submission, it must be observed was inconsistent with the evidence led that teachers provided no skills additional to those of lesser qualified child care workers performing similar work. If this were truly the case, there would be no effect upon a centre's ability to provided the optimum level of child development skills to the children who attended it, if a teacher were not employed.

Review of the Evidence 87 Given the fact that this is the first occasion when the work of these teachers has been considered in arbitral proceedings by the Commission and the nature of the contest here between the parties, I propose to review the competing evidence in some detail. The upshot of that evidence is that the Union's claim for work value change and undervaluation has been made out.

88 Ms Heron's evidence went to matters of background as to how preschools and long day care centres generally operate; increases in numbers of teachers employed in the sector in New South Wales, (from 1300 in 1993 to 2017 in 1999); as well as in the number of long day care centres (from 842 in 1993 to 1476 in 1999), while preschool numbers remained stable at around 900; how they are regulated by Government in various ways; award history; increasing problems of teacher attraction and retention in the sector and various Australian and international research into the importance of structured education for children in the before school years. The results of some of this neuroscience research suggested that education at this point in children's lives has the more important influence upon their brain development, learning, behaviour and health, compared to periods spent later in school or post school education.

89 In cross examination, Ms Herron described the differences between the rational self assessment system of accreditation, introduced initially by the Federal Government in 1993, but not fully extended to private centres until 1995, compared to State regulatory requirements. She was also cross examined as to the duties of licensees, as opposed to authorised supervisors under such Regulations and described, how in her experience, many obligations formally imposed upon licensees, were in practice delegated to an authorised supervisor, who was present day to day on the promises, including in relation to child protection requirements.

90 Ms Herron also described difficulties which had arisen in circumstances where teachers were appointed as authorised supervisors, but not to the award position of director and were not paid anything additional in respect of that work. She also described the consequences of the 1998 Regulations that 2 people always be present with children on the premises, including for the working of overtime and the introduction of mandatory reporting of any type of child abuse under the Children Care and Protection Act 1987, having regard to the wide definition there adopted of child abuse.

91 Ms Herron also outlined various OECD and Australian Government reports into education in the sector, with the NSW Government in November 2000, for example, observing that some 245,000 children now attend early childhood services and the vital role which the services play in their lives. (See Early Childhood Services Policy for New South Wales). She also referred to developments such as the professional development resource - Literacies, Communities and Under 5's. The Early Literacy and Social Justice Project - recently published by the Minister for Education and Training and the Minister for Community service. This resource was designed to enable early childhood educators to support children's early literacy, as well as assist teachers of children in their first years of school.

92 Ms Herron's evidence also went to comparisons between the work of teachers in schools and those employed in the early childhood sector, including its respective Regulation by award, statute and Regulation. She also detailed changing Government fee support for the sector and statistics published by the Australian Bureau of Statistics, showing that in the June 2000 to June 2001 quarters, there had been an 8.7% reduction in the cost of child care services, with the Sydney figures showing a 10.6% reduction, compared to a 6% CPI increase in that time. This was accompanied by a 22% increase in usage of long day care centres, as claimed by Government between May 1999 and October 2000.

93 Ms Herron described the circumstances in which various agreements were reached by the award parties, including in 1990, when the parties had regard to the fact that teachers in long day care worked 38 face to face hours per week, compared to those employed in preschools and schools, where 20 o 23 were worked and over 48 weeks, rather than 42 weeks of the year. She also described how agreements reached from time to time dealt with wage parity, but not conditions. She instanced the lack of access in these awards which 3 year trained teachers had to higher payments available to 4 year trained teacher's by experience and the lack of paid maternity leave or improved long service leave entitlements. She also described the wage restraint exercised by teachers employed in this sector during 1996 to 1999, a time when these industries were being affected by removal of Government operational subsidies for not for profit centres, there was a huge expansion in the number of services and child care benefits were introduced.

94 Dr Hayden's evidence went to developments which in her view increased the complexity of the role of early childhood teachers. She referred to various Australian and overseas studies which had fuelled the large input of funds into early education by many Governments and detailed the increasing role of education of children in these years, also providing support for families, especially those supporting children at risk or with special needs.

95 Her evidence was that this research argued for a well trained professional workforce to ensure that the critical needs of young children and their families were met. This had been recognised by the World Bank, which in 1994 had adopted early childhood education as a focus for development of human capital and national productivity. The World Bank was now involved in developing a Virtual University, to provide post graduate qualifications in early childhood development to senior policy makers in African nations.

96 Dr Hayden gave evidence that funding and usage patterns of centres in New South Wales in recent years had increased the likelihood that children had access to early childhood education, but for shorter periods of time. Children were likely to attend more than one centre per week, adding to anxiety levels for the children and their families. As a result teachers had to deal with greater total numbers of children and families, with a 40 place centre, for example catering for up to 120 children per week.

97 Teachers were facing increasing curriculum accountability. Individualised goals and pathways for children had to be maintained, while at the same time, predetermined externally imposed curriculum outcomes had to be met. These positive developments increased demands and responsibilities of the teachers and directors concerned.

98 There had been particular changes in relation to the literacy and numeracy environment. 4000 training packages in literacy were about to be released to centres across the State, helping teachers to work more closely with families in this area. The Department of Community services ('DOCS') had commissioned 3,500 training packages to emphasise the importance of community and family centred teaching in child care centres. These developments would place increased demands upon teachers and in Dr Hayden's view placed more diverse and demanding requirements on these teachers, compared to those employed in schools.

99 It was Dr Hayden's evidence that many students now qualifying for admission to the Bachelor of Teaching (Early Childhood), were opting for the less rigorous and complex (Primary) course. In her view the rewards for teachers in the two areas were increasingly discrepant, influencing students to pursue careers in schools. The status and working conditions of early childhood teachers, the levels of their responsibility and the potential stress of their jobs, were in her view not being reflected in their award conditions. One result was a failure to attract men to the field, with unofficial statistics suggesting that less than 1% of early childhood graduates were now men. Dr Hayden had experience of male students transferring out of the course, in response to an understanding of this position.

100 Her view was that the sector would continue experiencing difficulty in attracting and retaining staff, as increased changes and demands were being made of them, unless their working conditions reflected the level of responsibility they had and the critical role which they played in society.

101 Dr Sumsion's evidence went to the status and standing of teachers, especially those employed in the early childhood sector. In her view, teachers employed in long day care centres, receiving lower rates of pay than teachers employed in schools and some preschools, had to deal with larger administrative loads, fewer holidays and less preparation and planning time. In her view the predominant employment of women in the early childhood sector had contributed to the current low rates of pay. Today, the close relationship which staff have with parents had, in her experience, resulted in a reluctance to pursue improved wages and conditions or to resist unpaid overtime. Staff were conscious of the flow on of wage increases in fee increases to parents and the ability of families to access services. This had a restraining effect on actions for higher wages.

102 Significant periods of unpaid overtime were worked in order to prepare developmental activities, shopping for the service, attendance at meetings, administration and participation in professional development.

103 She described staff turnover in the sector, which also had implications for the quality of care and education offered to children. This flowed from difficulties in recruitment and retention of qualified staff, which was a greater problem in remote areas, where shortage of appropriate housing also impacted upon these problems. In cross examination, Dr Sumsion also made the obvious point that in times of staff shortages, teachers were likely to find other employment if centres closed.

104 Dr Sumsion described the competencies required of graduate teachers, including professional attitudes and ethics; sensitivity to cultural issues; knowledge as to matters such as child developmental curriculum design and evaluation, policies, Regulations and legislation; understanding of the nature of development and how adults could support it; how diversity in Australian society impacted upon children and families, management practices relevant to the service and community based family support services. She also described required skills in matters such as interpersonal, decision making, self awareness and self assessment; administration and organisation and planning. In cross examination she drew comparisons between University and TAFE training and expressed the view that the resulting quality of the educational programs delivered by centres which employed teachers was higher than that delivered by those which did not. She described this as involving teachers, whose training was less activity focussed than the training delivered at TAFE, ensuring that their programmes had a proper theoretical foundation, which was then delivered to individual children.

105 Dr Sumsion's evidence also went to the changes in the undergraduate degree structure introduced by the Institute of Early Childhood in 1996, when the new 4 year degree was introduced. This recognised the need for early childhood educators to work with adults, as well as children, in a variety of diverse settings; increased understanding of the complexity of the education process in the early years of life and the increased managerial roles and responsibilities required of graduates early in their careers. The result was increased academic demand upon students, which was not, in Dr Sumsion's view, reflected in their salaries upon graduation, compared to the requirements of their counterparts employed in primary education.

106 Dr Sumsion also drew comparison between management, administration and leadership requirements in which teachers in early childhood are called upon to meet, compared to their counterparts in primary and secondary schooling, even in their initial years of teaching. She referred to responsibilities for staff recruitment, development and appraisal, budgeting and book keeping, community management committees, the well being of sometimes several hundred children and their families, and a substantial team of staff.

107 Dr Sumsion also spoke of the isolation which early childhood teachers often experienced from other professionals in their field. Support and other teaching staff may be present at a centre, but the shift work environment meant there was little time for consultation. The support services provided to teachers by schools in her view were significantly different, there was interaction with other professional staff, higher pay, fewer hours and more holidays. In her experience these differences were making the early childhood sector less attractive to students, with declining numbers of young applicants and a steady stream of transfers to primary teaching.

108 Dr Sumsion also gave evidence of changes in the past 5 years in the demand for early childhood teachers to engage the whole community in the care and education of young children, if optimal growth and development were to occur. Teachers were engaged in establishing an increasing range of community based partnerships. This placed requirements on already stretched young teachers to play a key role in family support, not expected of teachers in other educational settings, where infrastructure support from large employing bodies ensured that families received appropriate and adequate support services

109 Dr Sumsion also spoke of the work of teachers in early childhood having become increasingly complex, like that of other teachers, because of the impact of changes in family structures and from social and economic marginalisation of many families in society. Expectations that teachers would help solve social problems had increased, as had the increased integration of children with special needs into centres. In early childhood this had been particularly impacted by the withdrawal of operational subsidies to non profit community base centres.

110 Dr Sumsion also described how increased costs for families had led to more fragmented attendance patterns, exacerbating the challenges for teachers programming for increased numbers of individual children.

111 Dr Sumsion referred to statistics suggesting that only 2.3% of primary teachers in Australia were men and that this number was declining, leading to a variety of concerns as to the imbalance in gender in the profession, which consequentially impacts upon children's learning about 'acceptable' male roles and gender stereotyping. She also described ongoing research which the Institute is carrying on, into the reasons why so few men choose early childhood teaching as a profession. Three main interrelated factors were emerging - low salaries and limited opportunities for career advancement; social pressures associated with work in a traditionally female professions; and fears of false accusation of sexual abuse. All those men interviewed to date were considering leaving the course.

112 Ms Inglis gave evidence about her duties as director of the Baulkham hills Preschool, where she taught 20 children 3 days per week and worked 2 days carrying out administrative duties, without clerical assistance. Since obtaining her teaching qualifications Ms Inglis had undertaken a Masters degree in Early Childhood Education, a degree in Sociology and a Diploma in Migrant education. She was qualified to each children of up to 8 years of age.

113 Her preschool was a community based 40 place centre operating 8.30 am to 3.30 pm during school terms. 80 children in four groups of twenty in the 3 and 4 year age groups attended the centre. Up to 20 children had additional needs ranging from autism, global delay, learning disabilities and speech problems, ranging from mild to high support requirements. One child had severe difficulties, with the result that he would never be integrated into a normal school in the future. Up to 5 others were severely disabled, warranting integration support from the Department of Education. The population mix had altered in the preceding 4 years from children of predominantly European background, to those of predominantly Asian background, with at least a quarter from a non English speaking background.

114 Two teachers, a special needs teacher, a child care worker with TAFE qualifications, two untrained child care workers, an untrained special needs child care worker and a trainee were also employed at the centre.

115 Ms Inglis gave evidence about her work and that of teachers at the centre. Teachers devise and implement profiles for the children, as well as undertaking observations and keeping developmental information. This had increased in response to parents demands for detailed information to be provided mid year when children are enrolled at school and at year end. The profiles include a checklist, work examples and child development information, to assist in assessing children's strengths and weaknesses.

116 Parental need for information as to children's normal development had increased in Ms Inglis' experience, especially in relation to reading and writing. She spoke of children as young as 2 being targeted by coaching colleges and had conducted research into various programmes, in order to advise parents about such assistance. She also spoke of additional professional training required to keep up to date with ongoing research into the early childhood years and brain development.

117 Ms Inglis' evidence also dealt with increasing requests for assistance from parents with a range of problems, following upon cutbacks in community services, with now an 8 week wait for counselling services in the area. Changes as the result of the enactment of child protection legislation were described, including the rewriting of relevant policies, changes in staff practices, the introduction of increased supervision of staff and the introduction of new procedures, such as prohibited employment declarations, which were now required of all staff, contractors, visitors and parents. In cross examination she described the impact of the introduction of mandatory reporting requirements, with investigations of child abuse no longer conducted in house alone, but reports given in relation to any suspected abuse, given the unclear definition in the legislation of what amounted to abuse. She confirmed however, that in the past, if abuse had been established upon investigation, it would have been reported.

118 Ms Inglis discussed cutbacks in early intervention services and increased enrolments of special needs children, with degree of disability also increasing. In her experience, increased requirement for liaison with outside agencies resulted, as did report writing for parents and external assessments by paediatricians, psychologist and speech therapists. In cross examination she explained that the degree of dependency of the children had increased, although she acknowledged that additional staff were also employed to deal with this increase.

119 Increased liaison with local schools was also described, as the result of the introduction of guidelines concerning integration into school Additional reports were required as a result and the centre was visited by Departmental integration officers, who observed and discussed each child. Forms required input from parents and teachers as well as the inclusion of up to date assessments from external agencies. School visits were also required and additional support had to be provided for parents with disabled children, but whose level of disability did not entitle them to integration support. Schools have also introduced school readiness testing for children, which has affected the preschool programme. In cross examination she explained that this had increased teachers' workloads.

120 The impact of this work for teachers, on Ms Inglis' evidence, has also affected her work as a director, requiring her to assist staff, especially in cases where they did not feel qualified to deal with a particular problem. Child protection legislation required various ongoing training and monitoring and reports to the centre's Committee. Increased administration flowing from the introduction of the GST and the new child care assistance scheme, as well as new funding arrangements for special needs children, were also described.

121 Ms Inglis was her centre's authorised supervisor, with responsibility for various matters under the Regulations, which had, on her evidence, also impacted upon the work of teachers. The changes in the Regulations had been introduced with the assistance of DOCS, but had resulted in the removal of its support for programming, problem children, and child protection matters. DOCS advisers now visited the centre less frequently and the new risk assessments required for licensing were prepared without the previous input from DOCS officers. Licensing assessment was formerly a joint process, rather than a self assessment process.

122 In cross examination, Ms Inglis described changes in policies which had either required major updates to meet altered regulatory requirements, or which had been introduced for the first time, having previously only been reflected in practices. She also described changes in record keeping requirements, which were now more detailed, requiring more work and time of teachers.

123 Ms Inglis also described how DOCS, since 1996, required the Annual Service and Plan and Reporting Document ('ASPARD'), which required considerable statistical information to be gathered, relevant to the level of the centres' funding. This required each parent to provide information anonymously about various matters, the data had then to be collated manually and other information added to the report. Detailed plans for the following year and an evaluation of the previous year were also required. In cross examination she described how the former funding arrangement had differed, requiring little work or documentation, just a simple 3 page form completed once a year.

124 On Ms Inglis' evidence, there had been an increase in the variety and complexity of the requirements of teachers and the expectations which parents and the community had of them, leading to additional responsibilities which needed to be recognised. Her centre operated under an enterprise agreement providing for rates 5% higher than the award. The committee each year budgeted for wage increases.

125 Mr Prendergast gave evidence about changes at the 3 long day care centres operating at the University of Technology, Sydney, one community based and two private. Mr Prendergast was the licensee of all 3 centres. He explained the difference between his role of licensee and that of the directors who were authorized supervisors being physically present at the centres, making day to day decisions. Completion of risk assessments was their responsibility with support from him. This requirement had been introduced 3-4 years earlier. In cross examination he described how this differed to the former system of inspections conducted by DOCS, which then produced a report.

126 Mr Prendergast too spoke of increased need to liase with a variety of Government agencies, flowing from new Government funding programmes applying to the centres and compared current requirements to those of earlier times, when subsidy schemes gave directors high levels of discretion, required minimal record keeping and were not subject to external audit. In cross examination, he explained this as earlier having required no applications or particular paperwork, but a short annual report. He also described the work flowing from innovations such as the ASPARD documentation, current accreditation procedures, child protection legislation and various data now required by State and Federal Government agencies. He described these innovations as necessary and useful, but as involving greater scrutiny, which led to increased work, the bulk of which fell upon teachers and directors at the centres. At his centres, this had led to changes in job descriptions, making such requirements clear to staff.

127 Mr Prendergast also described the demands made by a more educated and demanding group of parents, concerned with issues of quality of child care. The new accreditation process provided parents with official information as to what they were entitled to expect from the centres, leading to higher expectations on their part. During the 1990s, a time of severe shortage of child care places, families had little ability to pick and choose services. Getting a place had to be enough. Now demands had increased, parents were increasingly litigious and perceived deficiencies in educational content of programmes, or behaviour management strategies used by teachers, had become the basis of threatened legal action. Increased cost of child care had also led to higher expectations of the level of service provided, compared to an attitude towards community based services, where in the past fees and expectations in his experience had been lower.

128 In cross examination he compared how an allegation made against a staff member would now be investigated as compared to when DOCS was involved. In his view paperwork and bureaucratic process had increased.

129 Mr Prendergast's view was that the quality of the early childhood services was improving as the result of these innovations, but the onus for providing a more professional service fell upon the teaching staff. This was also reflected in job descriptions at his centre. In cross examination he described the changes which had occurred in relation to policies - formerly more ad hoc than now required. He agreed that they were ultimately designed to make operation of the service easier. Nevertheless, the environment which required such policies and the external reporting requirements were much greater. He also drew comparisons of requirements under the Federal accreditation system, as opposed to those impaired by State Regulation and described how he saw them as operating differently.

130 Mr Prendergast also drew distinctions between the general isolation of early childhood teachers from professional support, compared to teachers in schools. In his experience, this resulted in the need for teachers to engage outside normal working hours in conferences, seminars and professional groups, because centres typically employed only one or two teachers. The University had recognised this need by allowing up to 50 hours per year of time off in lieu, to allow attendance at such training.

131 Mr Prendergast also dealt with increased numbers of centres in recent years, together with lower levels of utilisation. This had led to budgetary problems for directors, who had to juggle staff numbers, child:staff ratios and staff availability, with lower levels of fee income. In earlier years directors had 100% enrolments, without the need to constantly monitor licensing requirements vis a vis staff and child numbers. This pressure had also led to a greater need for marketing of the services to prospective placements. While in Mr Prendergast's view these changes would lead to more professional and better managed services overall, with over serviced areas seeing closures, the changes had dramatically impacted the work of teachers and directors. An enterprise agreement providing for rates on average 10% above the award applied at these centres.

132 In cross examination, Mr Prendergast was also asked about differences between teachers and child care workers being appointed as an authorised supervisors. He was of the view that child care workers' depth of understanding was not such that he would employ them as authorised supervisor, unless there was no alternative. His experience was that teachers had a broader theoretical understanding of issues of child development, management, social issues, systems policies and procedures. He expected child care workers to implement existing programmes and teachers were employed to understand, review and revise them. In the last 5-6 years there had been much work of this kind, reflecting the influence of the post modern movement in programming. Teachers were expected to keep abreast of these developments and to implement them. This was not expected of child care workers. Teachers brought a greater quality to such work, although individuals differed in their abilities.

133 Ms Hardaker dealt in her evidence with the work of teaching staff at the Rainbow Street Child Care centre Randwick, where she was employed as director and authorised supervisor, assisted by a bookkeeper. She too was qualified to teach to year 6 primary school level. Her centre had 57 children present per day, with 80 attending at different times over the week, during hours from 8 am to 6pm.

134 Ms Hardaker was employed as a non teaching director, but often worked to replace absent staff. She also had many years experience as a teacher. The centre was maintained by Randwick Council and operated by a management committee. Three rooms were operated - the nursery, the toddlers room and the preschool room, with 26 children, where a teacher, a trained and an untrained child care worker were engaged. Ms Hardaker was also responsible for the 11 other trained and untrained staff employed at the centre, including a mother care nurse and a child care worker working with special needs children. She was strongly of the view that teachers training equipped them differently to the training which child care workers acquired at TAFE. She believed that they were caring people, but without the knowledge basis of teachers, which they applied to the educational process delivered at the centre.

135 Ms Hardaker had responsibility for the day to day running of the centre. The centre operates a budget of over $500,000. She described her duties in detail and also described the many hours of work associated with preparation of the ASPARD document, accreditation documents, Federal Government surveys, special needs subsidy scheme, child care benefits, Council reports, reports for management committee meetings, the annual report, budgets, GST and BAS requirements and child protection requirements, which frequently required the performance of work outside normal working hours, in order to attend to these and other duties. In cross examination, she explained how the management committee had responsibilities as licensee, but as authorised supervisor, it was left to her to ensure that these responsibilities were met. She described this as having become increasingly involved since 1994. She described how policies had progressively been updated over that time, also becoming increasingly involved, as had record keeping requirements.

136 Ms Hardaker described increased paperwork required since 1996, with the loss of the operational subsidy on the one hand, but the introduction of the ASPARD documentation on the other. While the concept was that the management committee, comprising a volunteer parent group, would prepare the documents, that was impossible, given what they required. She also described the current accreditation process, the hours of work it required of staff and parents and the meetings to be attended, much of it outside of working hours. Ms Hardaker also described the work connected with policy development and regular review, including, for example, in relation to child protection legislation. Those policies were again reviewed after an allegation was made against a staff member. She described how difficult this had been, at a time when the new legislative requirements had just been enacted. The parent management committee was supportive, but understood the requirements no more than she did. Ms Hardaker also described various new requirements, for example DOCS requirement that medication and accident report forms now be kept on site for 25 years.

137 This centre has a long waiting list and a $1 per day fee increase is budgeted for next year, together with a 5% increase in staff salaries. In Ms Hardaker's view, a greater percentage increase was sustainable. She described herself as running a business with a budget of over half a million dollars, 14 employees, 74 families, 80 students and having sat at the top of the scale, step 9 for a long time. She had been called upon to work harder, stay back longer and was not paid overtime, having always attended professional development conferences during her holidays or at weekends. Teachers and directors, in her view, should be remunerated for the professional and important work which they performed in the educational process, in the same way as school teachers.

138 Ms Warren, studying for a Masters in Early Childhood Studies, gave evidence about her work as director and authorised supervisor of the Sir Phillip Baxter Child Care Centre, a 55 place centre catering for 21 children aged from 0-2 years and 34 from 2-6 years. The centre operated from 8am to 5.30 pm Mondays to Fridays, over 48 weeks of the year. Ms Warren was employed to manage the centre and was appointed the authorised supervisor, operating a budget of over $700,000 per annum, with her centre's sponsor organisation providing payroll and industrial support. She too was on the top of the scale, in receipt of a directors allowance, for a 3 unit centre.

139 She described changes in enrolment patterns, with 29 children now attending 1 day per week, 46 attending 2 days and 21 attending 3 days, 10 attending 4 days and 10 attending 5 days. Five years previously the centre had had almost universal full time enrolment. The result was increased numbers of children for whom individual programme and record keeping was required, almost doubling the administration and records required.

140 Ms Warren described the introduction of computer records and two changes of software in 6 years, to cope with changing subsidy arrangements. She described administration as complex, requiring diligent record keeping for each child. She also described the change from informal centre generated record keeping, to Government proscribed records, work now performed by an administrative assistant, which she was called on to supervise.

141 Ms Warren also described State licensing requirements, which had changed about every 3 years in her experience. The current requirements involved 'risk management', requiring the development of centre based policies and practices directed to all licensing requirements, under various legislation and Regulations. Centres were now required to have systems in place dealing with prosecution risks. She gave an example in relation to items such as knives, detergents and disinfectants. These had always been kept out of reach of children. Now they were kept in special canisters, locked in and placed away, with statistical sheets on them. While there had always been responsibility for supervision of children in relation, for example, to contact with strangers, now procedures and protocols had been developed and staff were involved in role playing to prepare them to deal with strangers, difficult parents, those displaying mental illness and so on. She also described the annual ASPARD process, as well as the annual census by the Office of Family and Children's Services and half yearly SUPS reporting.

142 Ms Warren also described the Federal Government's best practice and quality improvement accreditation requirements in 52 identified areas, which required current philosophy and research into early childhood education to be reflected in programmes and curricula. Ms Warren also described what flowed from an allegation of child abuse, even when established to have been unfounded. In cross examination, she expressed the view that parental involvement at the centre had increased since 1994, as had record keeping requirements and transition to school programmes. She also described how former practices were now dealt with in various written procedures.

143 Ms Warren described a reduction in the employment of qualified staff at the centre, with the position of deputy director removed in 1998; child care worker positions having been downgraded from qualified, to unqualified staff and a special education teacher position reduced from 40 to 10 hours per week. This had led to increased demands upon her to support, lead and discuss best practice teaching skills with other staff. She explained her view on the differences between the work of teachers and child care workers, explaining that teachers were equipped to use various tools in a more complex decision making process, in relation to teaching decisions made in connection with children. She also drew distinctions between work in long day care and that performed in schools.

144 Ms Warren also described other decisions to reduce management support, in relation to building maintenance, cleaning, laundry, gardening, banking, ordering consumables and support staff, resulting in additional work for her, as a non-teaching director. Ms Warren also replaced staff absences in the roster. An informal time in lieu arrangement operated for staff attendance at this centre for out of hours meetings and training in the evening and at weekends.

145 Ms Warren too was of the view that the awards should reflect professional rates of pay.

146 Ms Butler gave evidence of her employment as a teacher and authorised supervisor, being qualified to teach children aged 0 to 8 years. She described her work at the North Ryde Community Pre-School centre, a 40 place preschool, operating school hours and days, with children leaving at 12.30 pm on Mondays, to allow staff to meet and prepare.

147 100 children per week attend the centre, with priority given to children in the year before they commenced school. Two groups of 20 children attend per day, with 5 groups over the week. Ms Butler herself taught 60 children per week.

148 Ms Butler described her work with those children, including planning and programming for her groups; writing individual programmes for 60 children and performing ongoing observations and evaluations of them and what this involved. Observations were done to keep a track of programs. She also described her work in co-ordinating her 3 assistants and the special needs teacher.

149 Ms Butler also described increased responsibilities flowing from child protection legislation, review of policies, resulting increased vigilance and ensuring witnesses for all supervision and additional record keeping.

150 The centre has 32 children with special needs attending, with a full time special needs teacher employed. Ms Butler described the centre accepting three children with high needs, additional children with moderate to mild needs and still being in a position of other parents having to be informed that the centre did not have adequate educational resources for their child. The centre receives a grant from Ryde Council for its special needs programme, which funds the special needs teacher, who spends most time working with the higher needs children and about an hour per day with children with minor disabilities, such as speech impediments. Ms Butler explained that in her experience parents were now more comfortable revealing if a child had special needs, or accepting this, if it were diagnosed. Teachers had access to more diagnostic check lists, allowing identification of more children who required extra help.

151 That teacher is also out of the class attending meetings with parents for about 30 to 40 minutes each day and also attends fortnightly meetings which takes her out of the class. Ms Butler then takes on responsibility for these children. She has learnt to sign, to use communication boards and to interact with children with cerebral palsy. That work impacts upon her other work with the remaining children, especially during group activities, when adjustments must be made, for instance for those with mobility difficulties. Activities have to be adjusted to allow those with special needs to participate to their full potential. She explained that such children increased workload because of the need for additional planning for their needs and additional meetings to attend in relation to them.

152 The centre has long waiting lists, with only 30 new places which became available this year. Ms Butler described the centre as well resourced, as the result of parents' fundraising activities,.

153 Ms Butler described the student free time available on Mondays as making but a small dent in her work. 15 minutes per week was spent on each child's records, a minimum of 15 hours, for 60 children. Developmental records also required work at night, as did programming and evaluation, report writing and attendance at parent committee meetings and regular parent interviews.

154 Ms Butler described her work as having increased in complexity over time, with a range of more diverse and demanding tasks. Increased emphasis was placed upon quality, with higher expectations of standards, coming from parents and the community, as well as from herself. There was increased work connected with policy writing, record keeping and more legislation to be aware of. She also described her experience of the work of child care workers, compared to that of teachers - she drew an analogy between the medical profession, where nurses had great practical skills, but doctors had a different role.

155 Ms Butler had formerly worked in a preschool attached to a primary school, where she had earned higher rates and had more release time and professional support. She had also worked in privately operated centres. Her experience was that she worked harder in the services which were not attached to a school. The record and report keeping requirements had then also been less onerous, with the same children attending every day, so fewer record keeping required overall. In her experience interaction with 20-30 children was easier than with 40-60 in a week, with much more paper work generated as well.

156 Ms Butler also described her interaction with the licensees at the privately operated centres at which she worked. At one centre the licensee came once per week, at the other at the start and end of the day, in order to speak to parents. In cross examination she compared current reporting requirements if allegations arose, compared to those before mandatory reporting was introduced.

157 Ms Lubawy was employed as a teacher/director, as well as authorised supervisor at Campus Preschool Wagga Wagga and was also undertaking a Masters of Education (Hons). This was a 40 place centre, about to increase to 44 places, for children of 3 to 5 years, operating 2 units and employing various staff including one full time and one part time teacher. Some 57% of children came from socio-economically disadvantage families, with 120 families with children at the school. In cross examination, she explained that this had increased in 1989, but had remained static since, even though fees had increased significantly every year. She did not expect to face falling enrolments if fees increased next year.

158 Like other witnesses, Ms Lubawy described the impact of changed licensing requirements, the impact of changing Regulations and legislation, ASPARD, and the Risk Assessment Task (RAT) introduced in 1998. While with ASPARD there was an expectation that volunteer untrained parent committees would complete documents calling for information such as statistics, business plans and a social plan, the reality was that the work fell to Ms Lubawy. That work was performed after hours. The 3 yearly RAT process was introduced in 1998 in a complex and confusing document. It involved risk reduction for children and staff, developed from policy, which was an ongoing requirement, always performed after hours of ongoing work and then requiring implementation in the workplace. This compared to the former system where DOCS came to the centre, and thus looked at risks together with her, then DOCS preparing a report.

159 Ms Lubawy described the increase in staff numbers over the years as the result of the attendance of increased numbers of special need children. She also described the work of staff management as well as that of working with parents, often after hours, by phone or home visits. She also described her work with the parent management committee to whom she was responsible, but who relied upon her for leadership in management, including in relation to budgeting, policy writing, fee collection, payment of staff, acquisition of materials and a variety of other matters. She described the work involved in policy writing at the centre as huge and not yet complete, but ongoing. That work fell to teachers. Policies were settled with parents and the committee. Policies had needed to be rewritten in response to child protection legislation, also introduced in a confusing fashion. Now every person who came to he centre had to provide information that they were not a prohibited person. Any employee, even when engaged for ½ a day, had to be referred to DOCS, for a police search. This required the use of unwieldy documents found to be deficient in a variety of ways. In cross examination she explained that it was not only allegations of suspected physical or sexual abuse which now was the subject of mandatory reporting, but also emotional abuse and neglect.

160 Ms Lubawy also described the development of the NSW Curriculum Framework, upon which she had become involved this year, working out of hours. She described her working pattern, including hours spent at home, attendance at camp overnight and conducting in-services for other staff.

161 She described the curriculum framework as responding to a world wide interest in brain development, and reflected the influence of the Italian Reggio Emilia School and the United States Emergent Curriculum. The aim was to follow the interests of a child, not just their needs. Mrs Lubawy expected the rewards of these developments to be huge in time.

162 In cross examination, her evidence was that while her responsibility in 1994 compared to that in 2001 could be described in the same way, using the several terms put to her, the nature of that responsibility had changed, as had the requirements made of her and how she met them.

163 On Ms Lubawy's evidence in recent years there has been increased expectations in areas such as record keeping, individual programming, keeping abreast of research and current trends, curriculum design and attendance at in-service training. Staff at her centre received ½ day release per week to attend to non-teaching duties, but more time out of hours was required. She described these developments as reflecting a more complex approach to the teaching task, which has been emerging in recent years. In cross examination she agreed that teaching evolved over time and she expected that it would continue to do so.

164 In cross examination she gave an example of a difference in required policies and their practical effect. Some years ago a child who was required to have calcium replacement at 10 o'clock in the morning, signed a record to show she had taken it. Five years ago this was countersigned by an employee etc. Now parents sign a form in duplicate, each day indicating the medication, the time, when last given by the parent, the dosage, the reason. The person administering the medication and a witness who observed the medication being given, both sign the document, retaining a copy to the parent and returning another copy for the centre.

165 Ms Lubawy's evidence was that her committee supported increased rates for teachers and did not believe that financial hardship would result. Increases of between 5-10 per cent had been budgeted.

166 Ms McMahon was employed as teacher at Narrandera Preschool. She was qualified to teach children to year 6 and had undertaken training to qualify her to work as an authorised supervisor in an early childhood service for 30 or more children, in accordance with 1989 Regulations. She later abandoned training which would have qualified her as a 4 year trained teacher, because it would have made her less employable in the industry.

167 The preschool is a 2 unit centre, catering for 39 children from 3 to 6 years, employing 2 teachers. The preschool has a waiting list, and had experienced no fluctuations in enrolments, but the local TAFE long day care centre had vacancies. The preschool caters for some 117 families, with the result that children may only attend for 2 days per week. Ms McMahon daily teaches 19 children, 3 to 6 years of age, including special needs children The preschool operates during school hours and days, except Fridays, when children leave at 11.30 am, after which staff have preparation time. It, however, accepts children from 8:30am, when buses from outlying areas arrive. It has a waiting list for 3 to 4 year olds. Fees are deliberately kept low according to the socio-economic means of the majority of families. It is planned to build a new long day care centre and preschool, for which fundraising activities are being undertaken by parents.

168 Ms McMahon works with the Wagga Wagga Early Intervention Centre, for the 4 special needs children in her groups, who require individual programming for their needs. She meets fortnightly with the Centre and parents to discuss the children's progress. Funding is only available for one day of these children's attendance otherwise Ms McMahon is responsible for their teaching without assistance.

169 Ms McMahon described the developmental checklist prepared for each child. She gave evidence of increased emphasise on school readiness preparation and evaluation. At her centre, the committee worked with the director, who was the authorized supervisor, on various DOCS documentation, in order to free her up for teaching duties, but the documents were still completed by the Director, with her assistance. Ms McMahon was the centre's temporary authorised supervisor, in the Director's absence.

170 On Ms McMahon's evidence the Committee was committed to raising fees annually by 10% in order to increase them to similar rates charged in the district by other centres. This had begun last year. Ms McMahon did not understand the committee to be aware of this claim. However budgets had regard to increasing staff costs.

171 Ms McMahon preferred working in the early childhood sector, but had recent experience of working at schools in casual teaching positions, where rates were higher. She found her current wage could not sustain her families' needs and had recently worked as a waitress to supplement her income. Her experience of salary and working conditions in the early childhood sector when compared to schools, led her to view that the former work was undervalued and under remunerated. She described her work at the pre-school as requiring greater knowledge of each child and its needs. A lot of time was spent on individual observation, rather than working to a set curriculum. Overall the work was more demanding.

172 Ms Whitcher's evidence went to her employment as a director/teacher and authorised supervisor at Kiama preschool which she job shared. She had part-time clerical assistance. The preschool was a 40 place 2 unit centre, with 117 children enrolled and operating from 8 am to 4pm during school terms, with the majority of children attending 9 am to 3pm. Children do not attend 1 day per fortnight which is devoted to preparation and staff development. She explained that last year there had been an expectation that the centre would not have full enrolments and she raised with her committee the possibility of reducing numbers, so that fewer teachers would have to be employed. The committee declined that option, being concerned to maintain standards at the centre. The centre now had a waiting list.

173 Ms Whitcher described her work as a teacher and that of director. Like other witnesses she dealt with obligations in relation to meeting the requirements of various Regulations and statutes, DOCS requirements, including in relation to licensing, communication with parents and management committee, record maintenance, budget preparation, work with children, including special needs children and work with other staff . Ms Whitcher also described the work connected with ASPARD and the Centre Based and Mobile Child Care Services Amendment Regulation 1997, including the consultative process undergone before the Regulation was implemented. She too dealt with the effects of the RAT; child protection legislation ; the GST; hazardous substance legislation, Occupational Health and Safety legislation and the new curriculum framework. In cross examination she explained that it was she and other teaching staff who completed ASPARD documentation, with the committee having some involvement and agreed that some record keeping had been easier since the records were computerized.

174 Ms Whitcher accepted the thrust of these developments as having merit, being directed to the delivery of quality education in the interests of the children and their safety. They had however led to increased and heavier workload, in circumstances where she believed that teachers and directors were unfairly underpaid, especially by comparison with school teachers and principals. Ms Whitcher pointed out that she was qualified and free to work in schools, where she would receive much higher pay. Despite this, she and other dedicated staff remained at the centre, in some cases, for very many years.

175 In cross examination, Ms Whitcher, like other of the Union's witnesses, was taken to the current Regulations and asked whether the requirements there imposed were not also required of her in 1994. She agreed in broad terms, but explained that the detailed requirement had changed and were now different. She particularly described changes in curriculum. She described teachers in the past having devised valuable experiences for children, based on their stage of development. Now there was a much greater emphasis on child initiative learning, requiring greater observation by teachers.

176 Ms De Re gave evidence about her work as a teacher at Goonellabah Preschool, a 40 place community based preschool operating for extended hours from 8:30am to 4:15pm during school days. The preschool operates two units of 20 children, employing two teachers and a special needs teacher and child care workers. The director is the authorised supervisor. She teaches a group of 3 and 4 years of age on Wednesdays and 4 to 6 year olds on Thursday and Fridays, with Ms De Re having responsibility for programming and individual planning for both groups, as well as supervision of a level 2 child care worker. Her centre had not experienced any utilisation or financial viability problems. The State funding freeze had occurred at a time when the centre received fairly high subsidies for children on economic grounds. The result was that there had not been a need for significant fee increases over the years and no significant fluctuation in enrolments.

177 Ms De Re gave evidence of the need to provide increased support for families at risk, exacerbated by the lack of adequate support from Government agencies. She too spoke of the increased need to understand various legislative and regulatory requirements, as well as licensing requirements flowing from the RAT, which placed the onus on the centre, rather than DOCS and the introduction of the ASPARD process.

178 The committee had in recent years decided to employ less qualified staff, leading to a need for her to provide on the job training for unqualified staff and other training work, flowing from increased staff turnover. Ms De Re spoke of increased workload as a result. She also spoke of the effects of increased market competition from the opening of new centres in her area, leading to new requirements for marketing, with staff having input into development of a market campaign and participating with leaflet drops.

179 She too spoke of the effect of increased enrolment of children with special needs and the inadequate additional support provided by Government agencies. She had noticed an increased number of children with general communication delays, with now 42% having some form of special needs assistance, compared to 20% five years ago.

180 She also gave evidence of increased workload both for the classroom teachers and the authorised supervisor. In her experience, there had been additional work associated with updating policies, procedures and manuals, new child protection requirements, attendance at various external committee meetings out of normal hours, increased interaction required with parents and more involved transition to school procedures introduced in the last 5 years. The centre also now participated in the Family First Initiative programme, leading to increased attendances at meetings with families.

181 Ms Whitcher explained that the committee supported wage increases of 6% and provision would be made in the budget therefore.

182 Ms Connell gave evidence about her work as long day care director for the Illawarra Children's Service at the Dapto Child Care Centre. She too was qualified to teach children up to year 6. Her work required the performance of shift work, to remain until staff:child ratios were able to be maintained and also to be on call at other times when the centre was open. Other out of hours work was also required. She resigned that position and had since February 2000 worked as a casual teacher for the Department of Education. Ms Connell found comparisons of the work difficult to draw, especially because of the casual nature of her current work, but found working to a curriculum at a school easier than the individual programming in the early childhood environment. Less parent contact at school was also easier, compared to the higher daily accountability in early childhood. The provision of resource persons for the staff at school, also meant less responsibility.

183 The Dapto centre had gone through a period of crisis, flowing from particular problems associated with the centre's premises, which had led to its closure for a period, it being financially unviable. These problems too had added to Ms Connell's work load. Ms Connell's centre was only infrequently visited by the licensee, but consultation occurred at director's meetings, the service operating 14 centres. Most of these centres were now full, with only one with a couple of vacancies. This had been a significant turnover from a position at Dapto where there had been very low enrolments for a period of 6-12 months. This had resulted from the loss of operational funding together with an overall saturation of places in the area. No more child care places can now attract funding in the area and demand has now increased to meet supply.

184 Ms Connell was responsible for the overall running of the centre, her own teaching work and oversaw the programmes other staff developed. Such programmes had to meet the developmental needs of individual children in relation to language, cognitive, social, emotive, fine and gross motor development and learning areas such as premaths, prereading, science, technology, literature, music, drama and movement.

185 She described the detailed observations made on each child and the resulting records and reports for parents. She also described the level of support required for staff not teacher trained. She also described the work involved in assessment and reference of children for external support, in the case of various needs. She described the work involved in dealing with a child identified and assessed as having autistic spectrum disorder, including provision of information to parents of detailed observations, which had suggested that assessment was necessary.

186 Ms Connell described the impact of varying attendance patterns on the assessment work, to ensure that all developmental needs of each child were addressed. She also spoke of new work in promotion and marketing in recent years and additional time required in relation to the inquiry and enrolment process, for new students.

187 There was no payment for overtime at the centre, the concept being that required work should be performed at home if necessary. Teachers who had to stay back to address staff:child ratios were not paid overtime, but child care workers were. Increased administrative requirements were made of teachers and directors, but this had not led to any relief during normal hours, instead just leading to the need for extra work to be performed at home. She had access to a maximum of 5 hours non-contact time per week. While her evidence was that many new developments were valuable, a lot of additional work was being required of teachers in order to meet the developments.

188 Ms Flack gave evidence about her work at the Lady Gowrie Child Care centre, an organisation operating a child care centre as well as providing adult education and traineeships. The Government also funded various projects delivered by the organisation. The centre was operated to demonstrate quality child care. It received many visitors coming to observe various of its practices. Ms Flack was a presenter of some of the Service's external courses. She, too, was qualified to teach children up to 8 years of age in schools holding a Bachelor of Education as well as a TAFE Associate Diploma. She had also worked in both a council based and a private centre.

189 The centre was licensed for 75, aged between 6 weeks and 5 years, but with 65 enrolled, to accommodate emergency care situations. Ms Flack was responsible for about 50 children over a week, aged between 2 and 3 and was the assistant director. Ms Flack too described her work, the involvement of parents and the growing trend of having to demonstrate to parents that a sound educational programme was being implemented.

190 Ms Flack described the calls made on her time, including outside working hours. Her experience too was of growing and changing expectations, as the result of legislative and regulatory requirements. She also described the impact on policies and procedures and the loss of administration and programming time, resulting from the introduction of child protection requirements, which mean, in practice, that staff must always be present together, able to see each other.

191 Ms Flack also described the accountability flowing from accreditation requirements. Staff had to demonstrate that what was written in policies and procedures was achieved in practice. She described the resulting need for re-examination and re-evaluation of everything done and the difficulty in establishing and then achieving new standards, not previously being met. She also described the educational context of the programmes delivered and parents' increasing expectations in that area. Ms Flack also compared her experiences as a child care worker compared to those she had as a teacher. While the duties were similar, in her experience she had more responsibility as a teacher and a sound educational basis for her work.

192 Ms Flack too described the teaching work involved with special needs children at the centre, where no special needs teacher is employed and the adjustment required within the class to accommodate the behaviour of particular children. Some children received funding for the employment of unqualified staff to assist with their care. All children with special needs presented to the centre by parents had been accepted, parents having made a decision, given the centres' ability to provide for those children, especially in cases where no additional funding was available.

193 Ms Hamersley gave evidence about her work as director and authorised supervisor of Salamander Child Care centre, where her role was that of a full time manager and her more recent work at the St Agnes Catholic Parish Long Day Care Centre in Port Macquarie. The Salamander centre enrolled up to 74 children per day, with 20 staff administering a long day care, occasional care and out of school hours care programme. About 200 children per week attended the centre. She too was qualified to teach children of up to 8 years and had post graduate qualifications in management of such services.

194 The centre was licensed for 55 long day care places, Monday and Tuesday and 69 on other days, from birth to school age. It had a long waiting list. The centre was selected to trial the Curriculum Framework for DOCS and is part of a research/study group for the Institute of Early Childhood, Macquarie University but this did not go ahead because a centre further west in New South Wales was preferred, it being an aboriginal centre. Ms Hammersley described the philosophy of the centre as based on the post modernist theories of Loris Malaguzzi and the school of Reggio Emilia, also described by a number of other witnesses. She described the move to this foundation of education at the centre as having involved a very large change in practice.

195 Ms Hammersley described the organisation of the centre and her work as director. She described the multitude of responsibilities now falling on teachers and directors and compared them to the responsibilities of teachers in schools. She described close daily relationships with parents, more children to deal with and less peer support in early childhood teaching. She described her role as authorised supervisor in relation to occupational health and safety responsibilities, even when absent from the centre; the need for proper financial management, impacted by the restructuring of parental fee assistance and the GST, which had led to downsizing of some centres in the industry, which were still obliged to maintain quality services for children. This too had led to a new pressure which required the marketing of the service to attract new enrolments, in order to maintain the service and the jobs of staff.

196 Ms Hamersley described the impact of developments in research in the growth and development of young children's brains having led to an academic upheaval over the last 4 years, which the regulatory bodies were now expecting services to reflect in their service outcomes. This required directors and teachers to be aware of the developments, in order to reflect them in their teaching practices. Ms Hammersley described a period of rapid staff turnover, affected by these changes, as well as pressure on the service to increase the number of under-2 enrolments. She also described the increasing expectation that children would have attained certain educational standards, when entering schools. There had been interaction with the Department of Education which in Newcastle had been very interested in the new philosophy being implemented at the centre and had also adopted the Reggio Emilia approach and were running in service courses, to consider how it could be implemented in the first years of schooling.

197 Ms Hamersley described her role in various areas, such as staff training, human resource management, public relations, debt collection, lobbying, fund raising and risk prevention, particularly in relation to licensing, and child protection legislation. She described in detail how the 'buck stopped' with the director, whose only support was from an ever changing management committee. She described the committee at Salamander always budgeting for wage increases of 3-6 per cent per annum, including teaching staff. In cross examination she also described the time in lieu arrangements which operated for circumstances in which overtime was required to be worked. 198 Ms Hamersley had also worked as a reviewer under the Federal Quality Improvement and Accreditation System and was waiting appointment as a coordinator. She had reviewed some 45 centres over 4 years and described the deep difference, in her view, which teachers brought to the role of authorised supervisor, compared to when that work was performed by a child care worker. She described a higher quality of work, depth of understanding and professionalism demonstrated in the centres where teachers were appointed to that role. Ms Hammersley also described her work at St Agnes, both a pre-school and long day care centre. The programmes there offered were very similar to those at Salamander. She was there employed under the Teachers Non-Government Early Children Services Preschool (State) Award.

199 Ms Hunt had teaching qualifications acquired in New Zealand which gave her recognition in Australia as a 3 year trained teacher. She was employed by the Kindergarten Union as the director of the Carillon Avenue Child Care Centre and was not covered by an award the subject of these proceedings. She had earlier been employed as a director/teacher and authorised supervisor at two privately operated child care centres, White Rabbit Child Care centre and Magic Kids.

200 Magic Kids was a part of a chain of 6 or 7 centres, licensed for 72 children, 0-5 years, with an attendance of 50, which also operated an after school programme. The Regulations required two teachers to be employed there, but during the most of Ms Hunt's employment, she was the only teacher employed, as the result of that management's decision. While she had drawn this problem to the attention of DOCS, it had not acted and the centre still operated. In cross examination Ms Hunt agreed that the operation of such a chain was unusual and that she understood private centres were generally owner operated. These problems had led her to leave that service.

201 White Rabbit was licensed for 39 places and employed one teacher, one trained and one untrained child care workers and a part time cook. It had a waiting list.

202 Ms Hunt responded to evidence given by Mrs Bardetta. She agreed, in cross examination, that Mrs Bardetta had greater experience in working in private centres, than she did. In neither of these two privately operated centres did the licensee work at the centre. The licensee for Magic Kids worked at head office and Ms Hunt rarely saw that person. The licensee of White Rabbit conducted another centre, where she was readily contactable by phone, but did not frequently visit the other centre. Ms Hunt performed all the administrative work associated with the two centres.

203 Ms Hunt agreed that teachers were very aware of financial constraints at privately operated centres, given her experiences of extreme restriction as to what could be spent. She disagreed, however, that the role of director only existed in community based centres. Her experience was to the contrary and she was paid above award rates given her qualifications, experience and appointment as director.

204 Ms Hunt also expressed the view that qualified child care workers performed valuable work, but that their training covered a wider range of topics and that they brought more skill to their work with children and thought more broadly about their work. She gave an example in relation to the use of blocks. A child care worker encouraged children to use them in a particular way, but might not consider the other ways in which children could use blocks to learn. She also described readiness for school now being a big issue, with qualified child care workers being less likely to have the skills required to assess this. Parents recognised this, by directing their enquiries about such matters to teachers,

205 She also disagreed that the licensees carried out the duties of authorised supervisors. The licensees were not regularly present at her centres, so this could not occur. There was, however, constraint in the ability of authorised supervisors to meet regulatory requirements -for example in relation to the employment of necessary staff. She described Magic Kids as having been profit focussed, making short cuts to staffing, with various results, including the need for her to remain at work after her shift had finished, in order to ensure staff ratios were met. This was never recognised by any additional payment.

206 Ms Hunt also expressed her disagreement with the view that the duties and conditions of early childhood teachers did not equate them to primary school teachers. In her view knowledge of curriculum, especially in key learning areas was critical to ensuring children achieved learning goals. Teachers had to program flexibly for individual children, while also attending to their emotional needs. Movement to new activities was directed by a child's interest, rather than being prepared in advance. Teachers were also very accountable to parents, with the result that their skills and responsibilities were at least the same as those working in primary schools. They performed that work with less support than that available in schools.

207 Ms Hunt described how she was frequently required to perform overtime at White Rabbit, because the centre was inadequately staffed, opened for 12 hours a day and child:staff ratios always had to be maintained. Children's rest periods were used to write up observations, but paperwork had to cease if a child woke up. This was not a practical way to perform administrative work, so an hour a morning was spent away from the children, for such work.

208 At Magic Kids there was no non-contact time provided, so all administrative and programming work was performed out of hours. This was very difficult. In her view, payment for overtime would be of benefit to teachers.

209 Ms Kynaston was the Executive Director of the Country Children's Service Association of NSW Inc, New South Wales' State President of the Australian Early Childhood Association and Chairperson of the New South Wales Qualifications Committee established by the Office of Child Care. Ms Kynaston, herself a former teacher with early childhood qualifications gave evidence about the support provided by the Association to its 567 early childhood service members, it having been established to provide them with management support. She gave detailed evidence about member funding problems. The Association had received a significant number of requests for information in relation to redundancies and many services in country areas were currently facing staff reduction, in the form of either total or partial redundancy, although when pressed in cross examination she agreed that only 10 teachers might have been made redundant in the past year. In her view, services were facing problems in remaining financially viable at previous operating levels. Their only options were to increase parent fees. Ms Kynaston acknowledged, however, that some communities were able to afford higher fees, higher level services, more qualified staff and could afford increased fees.

210 Depressed economic conditions in some rural areas restricted the amount by which fees could be raised, however, thus leading to decreases in staffing levels and children being withdrawn from services. This gave rise to utilisation problems, further impacting financial viability of some services.

211 Ms Kynaston described how cyclical factors affected viability in some areas, particularly in smaller communities, although in cross examination she agreed that small areas inevitably faced viability problems because of population factors.

212 Community services had lost operational subsidies for long day care services, on average some $40,000 per annum. This had meant that services had to raise these funds through other measures - increased fees or reduced operating costs. In 1997, the Association was funded by the Department of Health and Family Services (Cth), to provide support to services which had lost such funding. 77 long day care centres received support as a result, in metropolitan rural and remote New South Wales.

213 Reviewed subsidies had led to reductions in the employment of support workers such as cooks and cleaners; reductions in employment of qualified staff to minimum Regulation numbers; downgrading of qualified staff to minimum levels required by Regulation, including reducing child enrolment numbers to reduce the number of teachers required to be employed; increased fees; increasing 0-2 places; extension into other services and hours to include Saturdays; reduction in equipment expenditure and elimination of service such as laundry and meals.

214 More recent reviews of funding of long day care centres, by changes to the Child Care benefit, had improved affordability issues for long day care. This had adversely impacted preschools, which were unable to match those centres fee levels. Preschools had thus also experienced utilisation problems, thereby affecting their affordability.

215 State funding of preschools has been frozen since 1990, with significant impact upon some centres, whose funding reflects 1990 enrolments, with little reflection in some cases of current enrolments. In cross examination, Ms Kynaston agreed that there had, however, been CPI increases in that time. She also agreed that a reasonable fee per day in country areas was $20 per day and metropolitan pre-school fees would usually be higher. Those fees would be drastically reduced for families receiving child care benefits. A fee of $10 per day in a rural community could result for a preschool, but a long day care centre the fee could be as low as $2 or $3. Some calculations under the formula had led to minus amounts

216 Child care assistance in recent years had led to a proliferation of privately owned centres operated for profit across the State. Existing services, both private and community based, had reduced licensed place numbers as a result, as well as having reduced staffing. Ms Kynaston also described how enrolments at a centre could fluctuate from year to year and during a year, and how this could impact upon staffing levels

217 As to the claims advanced in the Union's evidence, Ms Kynaston's evidence was that changes to the Children's Service Regulations introduced in 1996, did not significantly alter the responsibilities of teachers, compared to the 1989 requirements, including guidelines then published. While there had been a clarification as to the roles of licensees and authorised supervisors, that had not affected the role of teachers or directors, there had only been a wording change, designed to impose obligations more directly on licensees, so that breaches could be more readily acted upon. In cross examination, however, Ms Kynaston agreed that much of what was included in the 1996 Regulation had not been previously documented. She believed, however, that there had been earlier requirements as to such matters.

218 The new RAT process was undertaken by the licensee or the authorised supervisor, who could be a teacher or a child care worker under the Regulations. It was a tool designed to assist services in the licensing process and to assess whether the Regulations were being met by the centre. In cross examination, Ms Kynaston explained that while previously there was no formal process to be undergone before a licensing visit, to ensure Regulations were being met, such a check would have had to have been conducted. This tool had been reassessed by DOCS and Ms Kynaston understood it would not continue, although she acknowledged in cross examination that this advice had been given some time ago and the process still continued to operate. While the RAT was a new requirement for some directors, ensuring that the Regulations were met, had always been the director's responsibility and was not a new obligation for teachers.

219 Ms Kynaston also expressed the view that teachers and directors had always played a significant role in child protection issues. The reporting responsibility fell on directors and the change in legislation had formalised this, but had not created new duties or responsibilities. Other responsibilities fell on licensees, but in her view not on teachers. In cross examination detailed examples were put to Ms Kynaston, who agreed that in practice it was often the director who implemented the obligations imposed by the legislation upon licensing. She agreed that the result of the legislation had been to reduce the involvement of volunteers in early child care services.

220 Ms Kynaston was unaware of increased enrolments of children with special needs in members' centres, but believed there was funding available for such enrolments. This was used to employ additional staff usually a child care worker.

221 On Ms Kynaston's evidence the administrative work associated with the new child care benefit scheme was performed by clerical employees under the supervision of directors. It had no impact upon the work of teachers. No greater responsibility had fallen to directors, who had always been involved in such work.

222 The abolition of operational subsidies with resulting impact upon the financial position of community based and privately operated centres, in Ms Kynaston's evidence, had had some limited impact upon the work of directors, but management of the centres fell upon licensees. That management had always been delegated to directors, but in her view there had been no greater responsibility or pressure flowing to directors as a result of the abolition of subsidies and none for teachers.

223 Ms Kynston was taken to the various work value changes relied upon by the Union in cross examination. She accepted that things were not now done in the same way as when she finished college, but said that there was a requirement to keep up to date and that the matters relied upon had always been required.

224 Transition to school had always been an emphasis in development of programmes at long day care centres and schools. It was an integral part of such programs and had not changed. Although she acknowledged that there had been research into the area, in her view responsibilities had not altered. The requirement now was merely to have a policy in place and to document that it was being done.

225 Ms Kynaston also expressed the view that the size of the increases here sought would cost teachers out of the labour market. Teachers were being replaced by child care workers in any event, both by smaller centres who are not obliged to employ them both by natural attrition and by others reducing their licensed places, so that teachers need not be employed. Ms Kynaston agreed that the Association advised centres to budget for wage increases of 2-3% each year. She agreed that over the past 5 years increases of 15% had been budgeted for teachers, but wages had only increases by 5% and child care workers 7-8%. Ms Kynaston explained that excess funds had been used for other purposes. She volunteered that from a management point of view, regular and systemic increases enabled better planning. Large increases, even spread over a number of years were harder to accommodate because parents then had to fund a big jump. Ms Kynaston accepted that responsibilities for directors might have changed warranting some additional increase, but not for teachers.

226 In cross examination, Ms Kynaston also described the qualifications of teachers and child care workers as being different, with greater expectations of the knowledge teachers would bring to their roles as a result. The Association is a member of a peak body of community based organisations called the Children Services Forum, which has recommended that teaching qualifications be required for authorised supervisors in services licensed for 15 or more places. This was regarded as providing for better outcomes for children, but the Association did register a concern for the consequences of this potentially for rural services.

227 Ms Kynaston agreed that rural services were having difficulty attracting teachers because graduates were not taking up the positions. She was not sure of the reason, but location was a factor in the country. She did not believe that salary was a factor because early childhood teachers had always been paid less than teachers in schools. When pressed, she acknowledged that teachers deserved pay rises, but that it should be standard State Wage case increases,

228 Mr Ian Alchin, the Executive Director of Blacktown Kindergarten Association, gave evidence about the various services operated by his association, including two preschools and a long day care centre. Neither the long day care centre nor one of the preschools employ a teacher, given their licensed numbers. A number of teachers are employed at the other 59 place preschool, including a teacher/director. The association operates on a not for profit basis.

229 Mr Alchin described steps taken by the Association in recent years to restructure its operations, in order to remain financially viable in an increasingly competitive environment. It had been impacted by loss of funding and families with declining levels of disposable income, in real terms. Cost reduction remained a major focus. The preschool still faced declining enrolments, with cost being the factor given for student withdrawal.

230 The funding which was received from State Government had not kept pace with increased costs. The introduction of the GST had also raised costs, related to record keeping and reporting requirements.

231 On Mr Alchin's evidence competition had increased when parents were given access to privately operated centres with the advent of child care assistance. The long day care centre was now competing with 5 privately owned centre, one 5 houses' distant.

232 Staffing costs represented 80% of costs. The bottom line had been reached and operational restructures could no longer effect cost reductions. The Regulations prescribed minimum staffing and so revenue could not be raised by increasing production or turnover. The only avenue now available was fees, which led to significant impacts upon utilisation rates. He explained that viability was a current issue for all services. They had been restructured a number of times, to ensure fees were affordable. They were facing competition based on fee levels. This had led to the decrease from 60 - 59 places at the Blacktown Pre-school, to reduce the number of teachers required to be employed by one. That had involved a decision to offer a service not of the highest quality. Privately operated centres offering access to child care assistance, did not have such pressures.

233 In Mr Alchin's view the changes relied upon by the Union had not led to any increase in the value of the work of teachers. Child care had always been regulated. Changes in how Regulations applied had not impacted upon teachers. The Regulations provided minimum standards within services and only documented what was reasonable and good practice beforehand. In his view, this was, in part, a recognition that a lot of people who now worked in the industry did not have a background in early childhood. They were operating their centres as businesses. Community based centres also had people worked who worked in management without knowledge or understanding of the sector. The concern was to document for people who did not have knowledge or training as teachers, as to what was required to be delivered in their centres.

234 The role of authorised supervisor could be filled either by a teacher or a child care worker. Nothing in the Regulations had added to the work or responsibilities of teachers. The RAT was not a new responsibility either, just a change in name and method, tied to licensing requirements. Under the former process, DOCS advisers would visit the service and identify risk and would seek to ensure that appropriate policies and procedures designed to deal with them were in place. Development and implementation always then lay with the director, ultimate responsibility with the licensee. Formerly DOCS advisors checked all these things and the service would attend to the matters identified. Now the RAT made the process easier by providing a checklist for the centre to address itself.,

235 The process now involved self assessment, with the DOCS adviser visit after that assessment was complete. The responsibility for filling out the DOCS checklist lay with the director, but was only a change in procedure. If a risk was identified, responsibility lay with the licensee, who again delegated to the director. The added duty of risk identification was not a significant change in work and had no effect upon the work of teachers.

236 Changes to child protection legislation, in Mr Alchin's view, had led to no significant change to work value. New reporting mechanisms had not affected any change, there had always been an obligation to report. Reporting was now mandatory and new agencies had been created to administer the system, but the responsibility to keep children safe had not changed. The way in which reports were made had changed, but had not added to any responsibilities changing. In cross examination, she accepted that certain additional reporting requirements had been imposed; which were more than administrative or clerical. He also described the information package and assistance provided by the Ombudsman to services, to help them with the new process. He agreed that it was important for team leaders in each room to be familiar with new legislative definitions and requirements. Mr Alchin also confessed that he was not completely familiar will all of the new process, but adhered to the view that the changes were only those of new formal procedures.

237 In his view, there had not been any marked increase in special needs children attending the Association's services. It had never accepted all those who had been referred or who had asked to attend. Enrolments depended on resources at hand. There was a limit to how many such children could reasonably be cared for. The ability of staff to deal with them was also a factor considered. Even with extra funding for some children, not all such children were accepted, although he expressed the view that there had been a change in the capability and willingness of staff to deal with such children. In his view, teachers were now less able to do so. Mr Alchin was, however, not aware that the former limit in the number of special needs children imposed by Regulation had been removed. He denied that a service had an obligation not to discriminate against children with disabilities in enrolment and adhered to his evidence, that this depended on resourcing and staff capacity. A refusal of enrolment was not viewed as discrimination. Mr Alchin described some children with special needs as having significant impact on management and organisation of a classroom, including as to safety. Additional funding was available allowing the employment of extra staff for such children.

238 As to the child care benefit scheme, funding was available to allow computerisation of records, which reduced administration associated with the scheme. Teachers were not responsible for financial management of centres and there had been no affect on the value of their work from this change. Directors had always been involved, particularly in meeting budgets. While loss of operational subsidies had changed the approach adopted to management of the service, it had not added to pressure or responsibility placed on teachers.

239 Mr Alchin denied any increased emphasis on transition to school. He accepted that the process might have been improved, to ensure children had appropriate support, but denied that teachers' work had significantly changed as a result. Teachers more closely reflecting what was happening in schools was not a significant change in their work.

240 In Mr Alchin's view the claims made by the Union were unsustainable and would result in increased fees being passed on to parents. Mr Alchin described increases in fees charged by the Association in recent years and the resulting decrease in waiting lists. He described parents enrolling their children on fewer days of the week and believed the grant of these claims would exacerbate this position. He also believed it would add to the trend of declining employment of teachers in the industry.

241 In cross examination, however, Mr Alchin explained his view that those employed to manage the services, be they teacher trained or not, were not fairly remunerated for the responsibility and administrative duties they performed. In his view, they should be paid significantly more, the directors allowance was inadequate, as was the allowance for a child care worker appointed as an authorised supervisor.

242 Mr Alchin also described his philosophical view that education and health should be better funded by society and that those employed in these industries across the spectrum were not paid their real value! That view had to be tempered by consideration of how these services were funded. In early childhood, families could not pay more. They made a judgment as to the value of the work of teachers by what they were prepared to pay for it. In his view, this explained the disparity which had grown between the rates paid to teachers employed in schools, since he had given evidence in the 1994 proceedings concerning early childhood teachers.

243 Mr Alchin explained the fees charged at the two preschools of $20 per day and agreed that while there had been annual fee increases of up to 6%, teachers' salaries had not so increased, although he explained that the wages of child care workers had increased, as had on costs. He acknowledged that a 3% increase in wages had been budgeted for next year.

244 Ms Lockhart, a member of the ACCC for 7 years and elected to its executive in November 2000, had been the licensee of Emu Heights Day Care centre, a long day care centre, for 7 years. She and her husband operated the centre through a company, of which they were the directors and shareholders.

245 The centre was licensed for 43 places, but operated 36, that decision having been made because of the need to employ an additional teacher when 39 children are enrolled. On her evidence the additional income would not cover the salary cost of such a teacher. The centre operated for children between the ages of 2 and 6 years and also offered a before and after school service. One full time 3 year trained teacher was employed, who was appointed as the authorised supervisor, but not the director. Ms Lockhart is qualified as a mothercraft nurse and is approved by DOCS to act as temporary authorised supervisor.

246 The teacher employed was on step 3 of the award scale, having been employed as a teacher for 3 years and Ms Lockhart expressed concern as to the affordability of subsequent incremental steps and how the centre's budget will be affected when these rates became due under the award. This difficulty was exacerbated by the possibility of any increases being awarded in these proceedings. After increases were awarded in 2000 by Redman C for child care workers, fees at the centre had been increased. They had been further increased in July, to accommodated incremental increases and would have to be further increased to meet any increases awarded in these proceedings. This would make the centre less accessible to parents, children already having left after the recent fee increases, because the area was a high income area and parents had little access to child care benefits. In cross examination, Ms Lockhart however, agreed that the centre was now full and that a 10% increases in teachers' rates, would lead only to a 90 cent increase in daily fees, which might be affordable for parents because of the impact of child care benefit arrangements.

247 Ms Lockhart described her responsibility for administration of the centre as licensee and the close liaison which she had with the teacher employed as authorised supervisor. Ms Lockhart said that preparation of the RAT was her responsibility, as was drafting policies, which she then provided to staff for input at staff meetings. She also liased with staff and parents in order to fulfil the accreditation requirements. The centre was currently accredited for 3 years, the highest possible period. The authorised supervisor had responsibility for the proper creation and retention of relevant records and documents required by the Regulations, but she often had to be chased up.

248 Ms Lockhart's experience was that the teacher employed at the centre could perform all of her work during normal hours each day, utilising the children's rest period for record keeping of observations and progress. There were 2 advanced child care workers who assisted the teacher with the care of 16 children aged between 2 to 3½ years in one room and Ms Lockhart and a trainee worked with her in relation to 20 children aged between 3½ to 6 in another room. She was able to utilise the children's rest period each day to complete record keeping, programming and paper work. She disagreed that this would involve a breach of the Regulations which required that no other duties be performed while children were being supervised (Regulation 33(1)), because minimum supervision was required, with most children sleeping. Attendance outside of ordinary hours was confined to staff meetings every 6 weeks or parent meetings every 3 months.

249 In Ms Lockhart's opinion there had been no change in the teachers' duties or responsibilities during the previous 6 or 7 years.

250 Mr Daley was appointed to the ACCC executive in 1995 and held the position of treasurer. For the past 7 years Mr Daley and his wife, with one other person, were directors and shareholders in the company which owns and operates the All Aboard Day Care centre, a long day care centre licensed for 59 places. The administrative duties were performed by Mr Daley's wife and the wife of the third director. 10 full-time and 1 part time staff, including 2 teachers were employed, with one appointed the authorised supervisor until her recent resignation, when a child care worker was appointed to that position, because the other teacher was not experienced enough. The centre accommodates children in the 0 to 6 year age groups.

251 Mr Daley and his wife were also directors and shareholders in the company which had owned and operated Park View Child Care centre for 2 years. The centre operates as a long day care centre and was licensed for 35 places, recently increased to 38. One teacher and 2 other full time and 5 part time staff are employed, with the teacher appointed the authorised supervisor, although the teacher had recently resigned and was being replaced. Mr Daley's wife was the administrator of the centre, which accommodated children from 0 to 6 years.

252 Mr Daley is the director of both centres. The teachers appointed authorised supervisors were not paid the award director's allowance. He was also employed as the Deputy Principal of the Quaker's Hill East Public school, a Government school. He had some 24 years' experience teaching grades 3 to 6.

253 Mr Daley explained that he liked to employ teachers of 3 or 4 years' training, who had not progressed beyond step 3, because their experience by that point established whether they were suited to early childhood work. After that period of experience, they became more expensive to employ, due to the award's salary structure, a matter to which continuing regard was paid, especially when applications to increase award wages were made. Fees at both centres were increased last year in response to increases for child care workers awarded by Redman C.

254 The corporate licensees met their obligations through the work of Mrs Daley and the other director's wife, including accreditation requirements, which involved liaison with staff and parents. Both centres had 3 year accreditation.

255 Mr Daley described problems with the Federal Government's child care benefits scheme, which members of the ACCC executive had been discussing with Departmental representatives. Delays in payments of child care benefits were causing cash flow problems for some members, leading to difficulties in paying staff and other outgoings. When the affidavit was sworn $15,000 was outstanding for the All Aboard Day Care Centre. In cross examination, Mr Daley explained that the All Aboard Centre was reasonably profitable and that this had encouraged him to buy another centre.

256 Mr Daley drew comparisons between the work of early childhood teachers and those employed in primary schools. He compared ratios of 10:1 for early childhood teachers to class sizes of 30 in primary schools; assistance of qualified child care workers, which primary school teachers do not have access to in class; the obligation to attend staff meetings, falling on primary school teachers, overnight excursions and no payment of overtime. In cross examination, he agreed teachers at school worked 23 hours face to face teaching per week, plus some luncheon and recess supervision. There were also 3 pupil free days a year and leave to attend conferences and seminars - 2 days this year, with 12 weeks' leave over the year. He also described the school's learning support team for children experiencing various difficulties including developmental disabilities. There was also further Department backup available. The school also operated a mentoring programme for new teachers and team teaching of some subjects, which allowed teachers to programme together and share resources. Mr Daley agreed that there was less parent contact at schools than there was at his centres, expect perhaps in kindergarten.

257 His view was that duties and responsibilities of early childhood teachers had not changed for at least 6 or 7 years and opposed any increases in rates.

258 In cross examination, he explained his understanding of the new child welfare legislation obtained from a heavy manual provided by the Department to each school. He agreed that this had led to additional pressure both for teachers and the executive and had added to the lack of males employed in primary school teaching.

259 Mr Daley explained that while he would like to pay the teachers employed at his centres more, it was a question of economics just as it had been for the Department of Education, which had spread the recent increases for school teachers over 3 years. Mr Daley was surprised to learn of the history of wage fixation in these awards having maintained parity with school teachers' rates. He suggested that the Teachers Federation had pursued a lot of work cases associated with pay claims and that they were in depth, to prove that more work and more pressure had been placed on teachers, warranting them pay increases. Mr Daley acknowledged that recent increases had resulted from agreements and could not identify any such cases. He conceded that he could understand why teachers needed more money, but it was a question of economics. Such increases would flow to parents in increased fees. While All Aboard was profitable, it was a very tight profit.

260 Mr Daley then went on to explain his view that the workload of primary school and secondary teachers far outweighed that of early childhood teachers, despite the differences in face to face hours and holidays he had described. It was also his view that the work of high school teachers was more valuable than that of primary school teachers. It must be noted that these views are inconsistent with the award applying to high school, primary school and pre-school teachers employed in Government schools, which provides that they all be fixed the same rates, having regard to qualifications and years of employment in teaching.

261 Mr Daley also described differences in educational programmes offered, even though he agreed that the same key learning areas were addressed. He was not familiar with the manual recently circulated to early childhood centres by the State Government regarding the acquisition of literacy skills by children of both of both primary and preschool ages, but was aware that it was operating. He also agreed that programming for children in early childhood was done on an individual basis, rather than on a group basis, such as at schools. He explained that teachers at his centres received one hour off per week from child supervision, including the authorised supervisor. Attendance at meetings out of hours every 6 weeks was asked of teachers, but not paid for. There were also more frequent meetings when accreditation was due, when parents were also involved. There were also fund raising committee meetings, which staff attended. No payment was made for any of these attendances.

262 Mrs Skoulogenis was the ACCC's Vice President, on the executive since 1998. She was the licensee of All 4 Kids Kindergarten and was a director and shareholder of the corporate owner of the centre, with her husband. She was also the licensee of the Mulgoa Pre-school, also owned by the same corporate entity. She was also the licensee of a third centre known as Aacacia Cottage Kindergarten, owned by another corporation of which she and her brother were directors and shareholders. That corporation had recently purchased that centre from Mrs and Mrs Bardetta. Mrs Skoulogenis held a Bachelor of Education and a Masters of Health Education.

263 The All 4 Kids Kindergarten was licensed for 39 places, but only 29 were enrolled, for economic reasons, having regard to difficulties in achieving full enrolments and the cost of employment of a teacher. Mrs Skoulogenis performed the administration work, dealing with a various other matters such as compliance with child protection legislation, Regulations and the child care benefit scheme. The centre was accredited for 3 years. Fees were increased in response to wage increases for child care staff awarded by Redman C in September 2000, to $37 per day. Mrs Skoulogenis' husband worked as an untrained assistant in the centre. Delayed payment of $10,000 child care benefits had left him unpaid for 8 months.

264 The Mulgoa Pre School was licensed for 29 places and did not employ a teacher. Mrs Skoulogenis performed similar administration work there. A decision had been made to convert to long day care operation there, following upon the Federal Government's decision to allow all parents to qualify for 16.8% child care benefits from 1 July 2000. The centre was owed some $20,000 of such benefits, which was affecting the centre's financial operations. There was physical capacity to increase the size of the centre, but there was no intention to do so, because of the resulting regulatory requirement to employ additional teaching staff and the cost of doing so.

265 Mrs Skoulogenis expressed concern about the award structure, which provided for incremental salary increases reflecting experience, without consideration of work performance levels. She complained that the Union regularly applied for wage increases, making teachers less attractive employees and their employment less commercially viable. After Commissioner Redman's decision, daily fees at this centre had increased to $30 per day.

266 Mrs Skoulogenis also performed administrative work at the Aacacia centre, which was licensed for 90 places and was 90% occupied. Fees ranged from $40 - $57 per day, depending on the children's age. A part time clerk was employed to assist her. The centre was accredited only for one year, when it was acquired, for reasons which Mrs Skoulogenis believed were connected with Mrs Bardetta having fallen ill and a teacher who prematurely went on maternity leave. At the time of giving her evidence Mr and Mrs Bardetta were still licensees of the centre and it was only being managed by Mrs Skoulogenis. She conceded that this situation was not contemplated by the Regulations.

267 The centre employed two teachers and was seeking to recruit two more in order to meet Regulation ratios, but was authorised by DOCS to temporarily employ child care workers in those positions, because of difficulties in attracting teachers to the positions. Mrs Skoulogenis assessed the work performed by these employees to have been excellent, describing the atmosphere at the centre under their influence as humble and loving. She would prefer to employ them permanently, in preference to teaching staff.

268 She explained that the baby room was staffed by a child care worker, as were the rooms for those 2-3 years old and those 3-4 years old. Two teachers worked in a 30 place room for the 4-5 year olds, with a child care worker. In cross examination, it was put to Mrs Skoulogenis that it was unusual to so arrange the operation of the centre, which appeared to conflict with staff:child rates contemplated by the Regulations. Mrs Skoulogenis agreed, but explained that DOCS had not objected.

269 One of the centre's child care workers had been appointed as authorised supervisor, in preference to appointment of any teacher to that position. While both teachers were described as 'very wonderful', that course had been taken because of the child care worker's experience compared to that of one of the teachers. The other teacher was assessed by Mrs Skoulogenis not to have the necessary skills required to ensure that the other staff fulfilled their duties and complied with Regulations. The third reason was the view that teachers appointed as authorised supervisors should receive no additional payment for such work and should not be appointed as directors under the award. Mrs Skoulogenis described centres whose teachers refused to be appointed as authorised supervisors without payment of the directors allowance as being blackmailed. The child care worker appointed as authorised supervisor received the award allowance there provided for that appointment, but was still paid less than a 3 year trained teacher on the first step.

270 Mrs Skoulogenis' evidence was that the Aacacia Centre could not afford to pay the increases here claimed, without increasing fees, although she agreed in cross examination that long day care was now affordable for parents. The effect would be to make the centres less accessible and it would widen the disparity in payment between teachers and child care workers, who, in her view, performed similar, if not the same, functions and duties. She described her aim to keep fees down, to cater for all the public and all the community and explained the recent 25% increase at the Mulgoa Preschool as reflecting the child care benefit the parents received, as a result of the introduction of the long day operation. She agreed that the increase in rates for child care workers had not been the only reason for increased fees there.

271 Mrs Skoulogenis spoke of her experience in lecturing to students at the University of Western Sydney, where she had observed students on block practicums at schools, while studying for their degrees, particularly for the degree in early childhood. She recounted observations from students that they had been inadequately prepared for the primary curriculum and that working at primary schools was harder than early childhood centres, where there were more students and stress. She also spoke of the unfairness that the degree of teaching did not qualify teachers for work in early childhood centres, under the Regulations.

272 In Mrs Skoulogenis' view early childhood teachers had misguided expectations of primary school work, expecting better pay and conditions there, but in her view this was offset by the reality of higher class numbers, lack of professional assistance and having to learn to meet curriculum requirements. In cross examination, she explained her involvement in early childhood to have dated from 1998. She agreed that she had attended a meeting held on the initiative of ACCC about 12 months ago, concerning the growing shortage of teachers and that one of the reasons identified by the employer representatives attending had been poor pay and conditions. She regarded increased pay as a short term solution however and believed training of teachers had to be revisited. There had to date been no response from Universities or TAFE to this. Mrs Skoulogenis was not familiar with teachers rates in schools, but agreed higher rates could be a factor attracting graduates to schools, as could perceptions about conditions there, which were in her view misguided, having regard to staff:child ratios and curriculum requirements.

273 In cross examination, Mrs Skoulogenis explained that she paid teachers for overtime required when a parent was late collecting a child. The parent was then charged a late fee.

274 Mrs Bardetta was the President of the ACCC, a member since 1976 and a member of the executive since 1978. She was also Federal President of the Australian Confederation of Child Care. Until January 2001, she and her husband were co-owners of Aacacia Cottage, employing 3 teachers and she herself working there as a teacher. Mrs Bardetta held a Diploma of Teaching in Primary from Sydney Teachers College, having worked in primary schools for some 9 years.

275 Mrs Bardetta gave evidence about the operation of the ACCC, its 500 members who in the main operated long day care centres, and 9 operating preschools. She referred to statistical material produced in 1999 by the Federal department of Family and Community Services, showing that in this State that 60% of children attend private long day care, of which there were some 1229 services in NSW. There was no information as to how many of such centres employed teachers.

276 Mrs Bardetta referred to the Regulations establishing child:staff ratios, including teachers and child care workers, which are: 1:5 for children under 2 1:8 for children 2 - 3 1:8 for children 3 - 6

277 Since 1997, at least 2 staff members are required to be present at a centre, during operating hours, irrespective of the number of children present. An early childhood teacher need only be employed once 30 licensed places operate, 2 teachers are required for 40-60 places, 3 for 60-80 places and 4 for 80-90 places. Mrs Bardetta drew comparisons with the relevant comparative requirements in other States and expressed the view that these differing requirements did not lead to any less quality outcomes for children in other States.

278 On Mrs Bardetta's evidence, wages now formed about 50% of operating costs, compared to 33% some 8 years ago. At Aacacia Cottage the figure had been 48%. When Commissioner Redman increased the rates of child care workers, fees had there been increased to $40 per day for children aged 3 to 5, $42 per day for children aged 2-3 and $57 per day for 0 - 2 years.

279 While parents had access to the child care benefit scheme, the rises here sought, in Mrs Bardetta's view, would absorb the increases recently injected into the industry by the Federal Government, bringing it back to its knees. This would be exacerbated by the decline in the value of the Australian dollar.

280 Mrs Bardetta described the National Child care Accreditation Council (NCAC) accreditation scheme. The Federal funding scheme depended upon centres obtaining such accreditation. This required a centre to meet the 52 principles established in the 'Quality Improvement and Accreditation System handbook'. In her view, information published by the NCAC demonstrated that the higher regulatory requirement in NSW for employment of teachers, had not lead to any difference in quality outcomes for children, because other States achieved 3 year accreditation at higher rates than New South Wales, even in South Australia, where no graduate teachers are required to be employed. Mrs Bardetta acknowledged, however, in cross examination, that the statistics provided no information as to whether teachers were in fact employed. She agreed such information was impossible to obtain.

281 Mrs Bardetta described typical private long day care centres as being operated as small family businesses, with owners working alongside staff, for up to 12 hours per day. Strong bonds developed as a result, with staff appreciating the importance of financial viability for their continued employment. Private centres had increased in number over recent years, even though they received lesser support than community based services, or those operated by non profit and religious organisations. This meant that they had to keep wages to an affordable level, if quality was to be maintained.

282 In Mrs Bardetta's opinion, the ability of parents to meet fee increases had reached a ceiling. Her affidavit evidence was that "I had to subsidise the financial viability of my centre by means of external income. I would not be able to continue to provide the service without this external income." It must be observed that this evidence cannot be accepted. In cross examination, Mrs Bardetta explained that in making this statement, she had taken account of the fact that she also owned the property and buildings at which the centre was located and she was repaying the mortgage. Aacacia Cottage had been sold as a going concern to Mrs Skoulogenis, for $500,000. Mrs Skoulogenis, had lesser outgoings, because she had fewer commitments, having but to pay rent to Mrs Bardetta, rather than paying off a mortgage. There is plainly no basis in this evidence for the view that the business Mrs Bardetta had been running was financially unviable, as had been her evidence in chief.

283 Mrs Bardetta also suggested that many centres would close their doors if the increases claimed were granted. No basis for this view was advanced. She also described teachers of increasing experiences as unemployable because of cost, the result being that if the increases claimed were granted, the job market for teachers would be further depressed and centres would have more difficulty in meeting the requirements of the Regulations. Mrs Bardetta described child care centres limiting their place numbers to ensure that they did not have to employ teachers; terminating the employment of teachers once they had several years of experience, but complained that this deprived the centres of access to mature teachers.

284 Mrs Bardetta suggested that while the rest of the developed world was recognising the importance of early childhood education in preventing teenager crime and ensuring long term educational success, access to early childhood services was in New South Wales being denied to vulnerable children, as the result of increased costs, such as those here claimed. While initially child care centres were seen as places to mind children while parents worked, the services themselves had always recognised the need to provide education, and there was now community awareness that this was where children received their first run of education. This had led to greater respect. Mrs Bardetta, however, did not agree that implicit in the idea of the delivery of such education, was that teachers were employed. They were but members of a team. It was problems of hierarchy which in her view, led to problems of turnover of staff. She also disagreed that teachers brought with them more skills than child care workers holding associate diplomas. Both were valuable and one was not better than the other, although in her view, TAFE education concentrated more on early childhood than University courses did.

285 As to the claim for directors, Mrs Bardetta on the one hand denied that they were employed in privately operated centres, but on the other accepted the assessment by Employers First, that about 35% of teachers employed received the allowance. The current Regulations provide for licenses and authorised supervisors. She suggested that the term 'director' grew out of the community based long day care centres' need to identify a person with the amalgamated duties of licensee and authorised supervisor.

286 I also reject this evidence. The Regulations predating those introduced in 1989 required the appointment of a director. That requirement disappeared with the 1989 Regulations, but has not been reflected by the parties in this award, although the parties to the Miscellaneous Workers Award, have done so by introducing an allowance for child car workers appointed as authorised supervisors.

287 Mrs Bardetta had herself acted as both licensee and authorised supervisor at the centres she operated in the past until 1998, when she appointed a teacher employed at the centre authorised supervisor, because she fell ill. Her view was that private centres where teachers were appointed as authorised supervisor were appointed in name only, the duties and responsibilities were in fact generally carried out by licensees. In cross examination, it was put to Mrs Bardetta that the Regulations required the authorised supervisor to be present at the centre, so that a licensee could only also be the authorised supervisor, if this obligation were met. Mrs Bardetta disagreed, referring to examples where one person was authorised supervisor of up to 8 centres.

288 The teacher Mrs Bardetta appointed as authorised supervisor sought payment of the award director's allowance, in return for undertaking these duties. Mrs Bardetta did not believe that the allowance was directed to such work, but nevertheless paid it. In her experience DOCS would not approve a child care worker being appointed an authorised supervisor of a teacher were employed, unless the teacher refused the appointment.

289 Mrs Bardetta described her experience, when the teacher so appointed was left in charge of the accreditation process which was then due, but which was not completed when the teacher left on maternity leave. The result was that the Aacacia Centre only received one year accreditation and was permitted to appoint a child care worker as authorised supervisor. That employee did a good job in Mrs Bardetta's assessment. She also reported that a license had now been obtained by Mrs Skoulogenis for the centre.

290 Mrs Bardetta disagreed with the Union's claim in relation to changes in teachers' work. She disagreed that there had been any significant increase in special needs children attending centres. Additional funding was availed of when such children attended and additional teachers were not employed in those centres. Nor in her view had there been a change in emphasis on transition to school programmes.

291 Mrs Bardetta also had the view that community based centres were better able to absorb increases than privately operated centres, for a variety of identified reasons,

292 Mrs Bardetta went in detail to her disagreement with the evidence led for the Union. In her view the changes to the 1996 Regulations, for example, merely reflected procedures and policies which centres such as hers had adopted as prudent business practices for many years. It had also been good practice to provide such information to parents. Such policies and procedures had long been required by insurers and, in any event, the Regulations coincided with the already existing requirements of the 52 accreditation principles. The decision to include similar requirements in the 1996 Regulations, had been a Government decision to validate the Federal accreditation process and industry practice. Mrs Bardetta also revealed that an awaited revised handbook for the Quality Improvement & Accreditation System Handbook, had just been published, describing the new provisions as simpler and easier to follow. They are due to take effect in January 2002.

293 Mrs Bardetta disagreed that parents' expectations had increases. She had been heavily involved in the development of the new curricular framework, but regarded it a support to staff and provided a confirmation of work already being performed.

294 Mrs Bardetta went on to draw comparisons between the 1996 and 1989 Regulations and the code of conduct then provided. Her view was that the current, more detailed Regulations, merely provided greater specificity as to pre-existing requirements. The RAT and its source documents merely clarified how risks were to be managed and provided guidance for which operators and their staff were grateful. They no longer had to develop their own material and a learning tool for staff was provided. Mrs Bardetta described the staff she employed as having been unanimous in the view that the RAT process had been a 'great educative process which allowed them to better understand the Regulations, including their duties and obligations'. In cross examination, Mrs Bardetta explained that ACCC had run courses in the RAT, because members needed help understanding it because it imposed new requirements. She described it, however, as a great team builder and enormous support for centres. She also agreed staff were not familiar with the licensing provisions before the RAT.

295 Mrs Bardetta also doubted that any changes had flowed from the new child protection legislation. The licensee bore the responsibility under the legislation. While the administration of the area might have changed, responsibilities had not. The Child Protection Council had also provided all centre with the resource documents, 'Making a difference'. In cross examination, she accepted that the law had changed in this area. The ACCC had however always advised their members to report allegations to DOCS. She agreed however the new definitions involved significant changed.

296 Mrs Bardetta also took issue with Ms Herron's evidence that the Federal Government's abolition of a non-means tested operational subsidy for community based child care centres had affected privately operated centres. They had never received such subsidies, but in her view, they had been affected by a media campaign in 1997, which incorrectly gave parents the impression that funding had been cut to all child are centres, leading to higher fees across the board, while in fact 80% of private operators had never received such subsidies.

297 During 1997 and 1998, many privately operated centres across Australia, in Mrs Bardetta's experience, had below normal attendances. Those which were well managed weathered this downturn better than others, with licensees working longer hours and improving business practices, in order to maintain commercial viability. Staffing levels could not be altered however, because of continuing regulatory requirements.

298 Mrs Bardetta denied, however, that many centres were now in a stable financial situation, because of problems with implementation of the Child Care Benefits scheme. Mrs Bardetta described in detail the ACCC's negotiations with the Department of Family and Community Services about the difficulties which members faced as a result and the introduction of a 'supplementary claim', in order to alleviate some of these difficulties, which was now providing some relief. She described many centres, as a result of teething problems with the introduction of the system, being in an unstable financial position, to the point where they could no longer keep their doors open, because of problems with Centrelink technology, which could not cope.

299 Mrs Bardetta agreed that costs of child care for parents had reduced as the result of the introduction of child care benefits, but on her evidence costs for providers had still increased dramatically.

300 Mrs Bardetta's evidence was that she was well familiar with the work of primary school teachers and believed that there were historical and practical reasons as to why they had always been more highly paid. I have already dealt with the problems in this evidence as to the history of rates of pay. In her view, their work was not comparable. She also denied that early childhood teachers were involved in their early years of teaching in more substantial management, administration and leadership roles than their counterparts in schools. In her view, assistance was often needed to be provided by child care workers, to enable such teachers to perform even the most basic duties.

301 Mrs Bardetta described a current shortage in early childhood teachers, with students preferring to take up employment outside that field, either permanently or until offered a place in a primary school. This had led to problems for child care centres, which had to employ teachers otherwise considered substandard or having views incompatible with that of the centre. This, in her experience, led to dismissals and unfair dismissals clogging up the Commission's lists and almost invariably leading to commercial settlements.

302 Mrs Bardetta described the ACCC's policy, that the staff:child ratios provided in the Regulations, should be amended by Government to remove the requirement for the employment of teachers, who did not provide better child care services than child care workers holding an Associate Diploma. She described such workers as committed, having a great deal of actual experience, being equally, if not more qualified and with experience as primary contact staff, tempered by maturity. Mrs Bardetta said "The ACCC understands that it is not the role of this Honourable Commission to take part in any such process. The ACCC, however respectfully submits that the Commission can take a leadership role in providing a degree of security to the children and families who rely upon the services provided by centres." In her view, teachers compared with qualified child care workers do not provide any additional value as either employees or carers of children. In cross examination, Mrs Bardetta explained this view had regard to the cost of employing teachers and the shortage of teachers. She described many services as now operating illegally as a result, because sufficient numbers of teachers could not be employed to meet requirements of the Regulations. She described situations of advertising for a year without any applicants and expressed the view that universities did not provide adequate preparation for the reality of employment in child care, because teachers were not equipped with practical skills.

303 Mrs Bardetta opposed any increases being granted to teachers, their work value not having increased for 9 years and their salaries already being high. She agreed that the ACCC is committed to opposing pay rises for teachers. In her view money was not the answer to teacher shortages. There were such shortages worldwide reflecting an attitudinal change to career paths. There had particularly been no increased expectations since the 52 NCAC principles were introduced in 1993. She denied that there had been any increase in curriculum accountability. In her view, implementing curriculum strategies developed was but a part of teachers' existing duties. She, nevertheless, described private child care centres as being in the vanguard of early childhood issues academically and in actual practice, which had been the case for the past 20 years.

304 Mrs Bardetta also denied that staff were reluctant to pursue improved wages and conditions, but said that in her centre, staff had been conscious of the need to ensure that the centre remained financially viable. While centres would like their staff better remunerated, especially child care workers, further increases were not absorbable.

305 Mrs Bardetta also denied that teachers were working significant amounts of overtime, in order to perform their duties. They had the assistance of child care workers to perform record keeping work, ensuring programs were planned and implemented and children evaluated. Mrs Bardetta also drew on the award applying to child care workers, to explain the responsibilities which various classifications had, to support this view. Mrs Bardetta, however, conceded that at her centre, time in lieu operated for overtime, such as attendance at after hours meetings. In cross examination, she explained that she had, incorrectly, understood that there was already a legal entitlement to public holidays and accepted that an award provision would be helpful.

306 She also disputed that directors employed in private centres, of whom there were few, required non-contact time to perform their duties, given the wealth of support they received. She also opposed the provisions sought in relation to public holidays, which she believed would only give rise to confusion. Any problems, in her view, could easily be sorted out by a phone call to the Department of Industrial relations.

307 The evidence and cases advanced by the parties were difficult to reconcile from a number of perspectives. The Union's case was that teachers' work was seriously undervalued, the employers that they were adequately paid - perhaps overpaid. The Union sought large increases in rates, to reinstate teachers to their former wage parity with teachers employed in schools, but the employers resisted any increases at all being granted, leading to an increasing wage disparity, shortly to be in the order of 26% between the two groups. The Union argued that the undoubted changes, which have occurred in these industries, have impacted upon teachers in a variety of ways, warranting the awarding of higher rates of pay. The employers' position, at some odds with the views of some witnesses called, was that while changes had occurred, they had not affected the value of the work which teachers had performed and thus no increases were warranted, for either teachers or directors.

308 There was common concern amongst the parties about the difficulty of recruiting teachers in these industries. The Union argued that increasing rates would stop the move of teachers to the school sector, they being attracted to the better pay and conditions which their training permitted them there to earn. The employers argued that such increases would price teachers out of this market and that the answer was to refuse any increases and for Government to amend the regulatory regime which requires the employment of teachers, so that fewer would be required to be employed.

309 The Union argued that the skills which teachers possessed were increasingly being called upon by their employers, who were faced with more stringent regulation by Government to ensure that better quality education was being delivered to preschool aged children attending these centres. These requirements were reflecting ongoing international research into the importance of high quality education at these early ages, particularly a growing understanding of the way in which the human brain develops. The employers argued that child care centres in this State were at the vanguard of these developments, delivering high quality care to children, but that in reality, the work of teachers added but little to this picture and that no greater calls were now being made upon teachers' skills to ensure that Governmental requirements were being met; that centres were acting to reduce their licensed numbers in order to remove the obligation to employ any teachers at all and that teachers' work added nothing to the quality of care being provided at their centres, compared to what was being delivered by lesser qualified child care workers.

310 One immediate observation which must be made about the parties' starkly competing cases, is that the Union's case sought to emphasise the work performed by teachers in delivering the education which children received in the early childhood sector, the employers' case concentrated upon quality care. The two are obviously interlinked, but not interchangeable aspects of the services which are provided by the centres which employ teachers. On the evidence, teachers, like child care workers, have work to perform in both areas.

311 That observation leads on to the next obvious point. The ACCC, through witnesses such as Mrs Bardetta and Mrs Skoulogenis, sought to advance a case that teachers were overpaid by way of comparison to child care workers, who were employed to do the same work and were in fact more desirable employees. Witnesses called by the EF, such as Ms Kynaston and Mr Alchin, did not support those views. Union witnesses also disagreed. Apart from Mrs Bardetta and Mrs Skoulogenis expressing such views in the most vehement terms, there was in reality little attempt made to establish a basis for them. There was, for example, no comparison of what the training of the two groups actually involved and no examination of the work actually performed, other than to observe that these employees worked together with the same children in delivering their care and education. That approach was entirely too superficial a basis to make out the startling views here advanced, especially given other evidence that, for example, while some teachers worked with child care workers as members of a team, others were required to supervise their work and others to train them. The overwhelming evidence was that the quality of understanding and knowledge brought to the work by the two groups differed.

312 Such views must also be contrasted with the evidence apparently led by the ACCC in the special case before Redman C, where the rates paid to child care workers was recently considered. The Commissioner noted, for example, at p46 of his decision, that there Mrs Bardetta's evidence had been that by comparison to child care workers: '…while teachers are 'expensive' depending on whether they are 3-year trained or 4-year trained or have special education qualifications, teachers make a different contribution'.

313 I was uncomfortably left with the impression that the views advanced, especially in the evidence called by the ACCC, in relation to comparisons drawn with child care workers, had been overstated in a rather unfortunate way. The evidence does not permit a conclusion to be drawn that teachers are presently overpaid or that these comparisons with the qualifications and work of child care workers was valid.

314 The statistics referred to by various of the witnesses suggested a significant growth in the long day care sector over the last decade, with substantially increased numbers of teachers employed. There was also evidence of some locations being oversupplied with child care places as a result, with financial pressure on some centres, including pre-schools, emerging lower levels of utilisation of some services and resulting redundancies of some staff. In that time, changes have occurred in Federal Government operational funding of community based centres. A freeze on State Government funding of preschools (apart from CPI adjustments), has been in place for a decade and access to Federal Government financial assistance has been introduced for parents who choose to send their children to long day care. There now appears to be a pattern of under utilisation of child care services in some areas and waiting lists in others. The evidence of fees paid by parents, differed widely, with fees as low as $14 per day, to as high as $56 per day being charged, depending on factors which include location, the type of service and the age of the children attending and undoubtedly, in the case of privately operated centres, questions of profit.

315 There was a concern amongst all employer witnesses that wage increases for teachers would lead to increased fees, making centres' services less accessible to parents and consequently less financially viable. In the case of preschools these concerns arose because some parents were not eligible for child care assistance, even if of low income and in the case of some long day care centres, because the centre was located in an area of high income, with little access to child care benefits and for that reason, so also making fee increases less affordable. The general view was that costs had otherwise been cut as far as possible, increases could not be met by other savings and would hence have to be met by parents. I accept that concerns about increased costs for parents were legitimate. I also take the view, however, particularly given the impact of child care benefits and especially for those of lower means, that these concerns were also somewhat overstated.

316 The evidence demonstrated that neither of these industries reflected the operation of a free market place. They are two industries closely, but not identically regulated by State and Federal Governments in a variety of ways, which has changed over the relevant period. Over time there has also been an increased desire on the part of parents for their children to have access to these kinds of services, no doubt in part reflective of the increased participation of women in the workforce over that time, especially in part time work. (See for example the discussion in State Part-Time Work Case (1998) 78 IR 172 at 181-183 )

317 This too would help explain the evidence of children's significantly altered attendance patterns, over the period, where formerly children tended to attend such services full time and now part time attendance was very common and widespread, leading to increases in overall numbers of children attending a service over the course of a week. The evidence of increased costs of these services, particularly in the context of the introduction of child care assistance for parents, would not alone explain this development in attendance patterns.

318 Undoubtedly the increased need for these services has driven the large increase in the total number of these centres, particularly those which are privately owned, with the result that more teachers are now employed in the early childhood sector. Undoubtedly, this too has contributed to the current shortage of such teachers in this sector, particularly when the large increase in the number of teachers employed is considered. Perhaps not unsurprisingly in that context, over that time period Government authorities have also taken steps to require improvement in the quality of care and education which such centres deliver. That process is continuing with the impending introduction of a new curriculum, which has hitherto not existed in this sector and which it appears may also be applied in the early years of schooling.

319 While it was common ground that change has occurred, what was in issue was whether those changes have affected the work of teachers. On the evidence there can be no doubt that the impact of these changes has not only affected service providers, namely those appointed as a centre's licensee, but also those employed in these services, including teachers. Indeed, while this was entirely denied by the employers in these proceedings, apart from a concession by some employer witnesses that the work of directors may have been affected, it must be noted that this conclusion in fact accords with the evidence led for the employers in the proceedings before Redman C. At page 47 of the decision, for example, the Commissioner recorded Mrs Bardetta's evidence as having been that there had been a change for child care workers, with added work required for accreditation. Here, of course, while suggesting that the work of child care workers was identical to that of teachers, such added work in their case was denied. I reject that evidence.

320 The overwhelming impression with which I was left, particularly when the evidence in chief of employer witnesses was compared to that given in cross examination, was that their assessment of whether salary increases for teachers were warranted, had been so affected by their concerns as to what impact such increased salaries would have on the financial viability of some services, that it distracted them from a fair and proper assessment of the changes which had occurred and whether teachers' rates should be increased as a result in these special case proceedings.

321 That conclusion is regrettable and undoubtedly makes the task which I am called upon to perform in these proceedings more difficult, because it meant that the employers provided no assistance in relation to the assessment required of the magnitude of the change and the increases which should flow in these proceedings. The conclusion was however unavoidable, given the cases which the employers advanced.

322 It was a conclusion which also echoes the views expressed by Redman C. It should be noted that the Commissioner was not concerned with claimed work value changes, or claimed undervaluation of the work of child care workers, but rather with claims for payment of outstanding State Wage case increases. The Commissioner observed that award could properly be regarded as a 'lagging' award. In relation to the employer's approach, he concluded at p97 that; '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.'

323 It is convenient at this point to deal with an alternative proposal which emerged from the EF, as to a basis upon which some increases in rates might be awarded in these proceedings, as a practical recognition of the fact that these teachers have not received wage increases since 1999. This approach depended upon a rejection of the Union's claim. This proposal was said to be based on the approach of Redman C in the Miscellaneous Workers' Case. It is not necessary to say much about this proposal, given the views I have otherwise reached. Nevertheless, it must be observed that it was an approach which had little to commend it, given the different claims and circumstances arising for consideration in the two cases. The approach also carried with it an obvious possibility of flow on if it were to be accepted, another good reason for its rejection.

324 I do accept that there was, on the evidence led, a proper basis for concern that some services, of already dubious financial viability, may become unviable as a result of any increases granted in these proceedings. That it was a problem of the magnitude suggested on the employers' case was not made out. That such a situation might result from the various developments described in the evidence, which have apparently encouraged new services to be opened, without regard to existing numbers of child care places in a particular area, with the result that some localities are oversupplied with such services, thereby leading to significant competition between them, seems hardly surprising. Nor is the possibility that some rationalisation of that position might emerge in the long run.

325 On the evidence I am not satisfied, however, that there is a general pattern in these industries where ongoing financial viability of services is going to be adversely affected by any increases here granted. In the privately operated part of the sector, there was evidence, for example, that cash flow problems had been caused by a serious failure by the Federal Government to make payments to operators when they fell due and that large payments in some cases remained outstanding for long periods of time. This undoubtedly led to problems for those affected. It was also revealed however, that steps taken to address these problems were taking effect. Problems of cash flow of this kind cannot, of themselves, provide a basis for refusing increases in rates of pay justified on the evidence in proceedings such as this.

326 While undoubtedly the cost of any claim is a matter which must be considered in an application such as thus, increased cost of itself, is not a reason for rejecting a claim otherwise made out on the evidence. (See Re Health and Community Employees Psychologists (State) Award [2001] NSWIRComm 302 at para 52). It is also relevant to note, given the many concerns expressed about the ongoing financial viability of some services, that the Wage Fixing Principles themselves make provision for such concerns to be dealt with, if they are in truth seriously held. That is, by way of an appropriate application made to the Commission in accordance with the Economic Incapacity Principle (See (2001) 104 IR 438 at p485). No such applications were advanced in these proceedings and so do not arise for consideration.

327 While very serious concerns were expressed by the employer witnesses about the consequences of granting this claim, no attempt was made to put on evidence which would allow such concerns to be properly tested. Nor was there any attempt to meet the requirements of the Economic Incapacity Principle, in respect of any individual employer. The difficulty that some employers would have in meeting such requirements also became apparent from the cross examination of some witnesses, such as Mrs Bardetta and Mr Daley, which established that the financial position of some privately operated centres was, in reality, not as grim as it had been painted.

328 The end result was that the idea that the financial position of employers in this industry, on the whole, is so dire that no increases in rates could be afforded, must be rejected. There was, after all, also evidence that some employers had been regularly making provision in their budgets for wage increases to be paid to teachers and when none flowed under the awards, the money set aside was used for other purposes. Other employers have paid wage increases by entering enterprise agreements with the Union. Some employers made over award payments. Others have also budgeted for increases expected to emerge from these proceedings. Unsurprisingly this evidence suggested that it is possible for wage increases to be sustained in these industries, when a proper budgetary approach is adopted.

329 An application under the Economic Incapacity Principle may, of course, be made by any employer and at any time, although even a successful application might not save an otherwise unviable service. This is not only self evident, but consistent with the evidence of various witnesses, including that of Mr Alchin. Child care services, just like other services which people are free to utilise if they choose to pay for them, will inevitably compete with each other. Factors relevant to such competition will include the quality of the care and education which they offer, having regard no doubt to matters such as the quality of their facilities and staff and the price which they charge for their services. Whether parents in the area in which a centre is located are seeking a preschool or a long day care centre, may also have an impact of course, as will changing demographics over time. The changing position described in the Illawarra, is an example of this.

330 Various of the witnesses, both Union and employer, spoke of such competition being an increasing feature in these industries in recent years. That position accords with the evidence of the increase in total numbers of centres and oversupply of child care centres in some locations over the years.

331 Union and employer witnesses also spoke of teachers' awareness of the problems centres faced with accommodating increased costs. The comparison of how rates of pay for early childhood teachers have increased during the period in question, compared to increases agreed for teachers employed in schools, supported the evidence that those employed in this sector have been slow to pursue wage claims and have acted to support their employers in dealing with their financial difficulties. On the evidence of witnesses such as Ms Kynaston, this may have operated to their detriment - money budgeted for their wage increases has been spent for other purposes.

332 There was also evidence of teachers now being called upon to perform work to attract enrolments and some preschools having introduced longer hours of care than traditionally was the case. Plainly, in such an environment, those centres which do not attract sufficient support in the community they service, will not survive. Nor will it necessarily be the cheapest services, which do survive. Undoubtedly price is but one factor which parents will weigh up in their decision making process. On the evidence, there is no reason to think that whether or not a centre employs a teacher, will not also be a factor which will be weighed in that process.

333 Indeed, there was evidence that such comparisons are now being made by parents and that teachers and directors are being involved in the challenges which this presents - no doubt in the interests of ensuring the ongoing viability of their workplaces and their own employment. That too might explain why witnesses such as Mrs Skoulogenis insisted on referring to qualified child care workers as 'teachers'. This is undoubtedly a useful marketing tool. At the end of the day these proceedings are, however, not concerned with protecting either employers, or indeed teachers, from the consequences of such competition, although, as I have already noted, the cost of any award made and how it might be introduced, is a matter properly to be considered as a part of these special case proceedings.

334 Against those general observations I turn to the claim for wage increases. This had two aspects. Claims that there had been changes in work value and claims that the work was now undervalued, especially by comparison to the salaries paid to school teachers.

335 It is convenient to state firmly at this point that the evidence led demonstrated change in work of a kind sufficient to satisfy the requirements of the Work Value Principle. It also demonstrated that the work was significantly undervalued.

336 The time has long passed since teachers employed in the early childhood services sector were regarded as providing merely a child minding or child care service, rather than an educational one, given the ages of the children attending the centres at which they are employed and that they are not employed in schools. Indeed, such views are inconsistent with the Regulations which govern the operation of centres in this sector. They are views which in reality have not had currency since the first consent award was made in 1970 for these teachers, when they were immediately brought up to 80% of the rates paid to teachers in schools and parity was phased in over the following 4 years.

337 Some 30 years later, the position today is that 3 and 4 year trained teachers employed in this sector have the same training as those employed in primary schools, employed to teach children of up to 8 years of age. Others have specialised in early childhood education. On the evidence children of up to 6 years of age attend these preschools and long day care centres and those as young as 4 years of age attend schools, a considerable period of overlap in age groups. There was evidence of considerable movement of staff between employment in these preschools and long day care centres and schools. It is undoubted that the skills with which such teachers are equipped by their training, is available to be called upon, when employed in either sector and that experience in one sector does not exclude them from employment in the other.

338 As I have already noted, given the recognition which these awards and their predecessors have long given in the incremental salary scales to the holding of various university degrees and years of experience, I doubt the correctness of the view expressed by Mrs Bardetta, that such education does not appropriately prepare such teachers for employment in these early childhood services or that experience does not add to the value of their work. The overwhelming evidence was to the contrary.

339 In this State, there is a very long history of wage fixation by this Commission and its predecessors, for teachers and other professional employees. As long ago as 1964, for example, in considering rates of pay for four year trained teachers (those with a bachelors degree and a diploma of education), the Commission in Court Session had to deal with the concept of whether experience added to work value of teachers. In re Crown Employees (Teachers) Award [1964] AR 463 it was concluded at p513: 'In our opinion the evidence supports the conclusion that, while most four-years trained assistants become competent practitioners after teaching for five or six years, the services they give become increasingly valuable thereafter because of their added experience, practice, observation and learning. We think that, whether or not the teacher has the outstanding qualities necessary for placement on a promotion list, this process may fairly be regarded as continuing during the first nine years of a four-years trained assistant's service. We therefore decide in the Federation's favour to its claim that the remuneration payable in the 10th year of service and thereafter should be paid, not by way of salary plus allowance, but as salary, and should not be subject to an award condition that entitlement to the 10th year rate depends upon the teacher's service and efficiency having been and continuing to be satisfactory and upon the teacher's having a place on a promotion list. The rate which we will fix for the 10th year of service an thereafter will be payable as salary to all teachers with the appropriate service and whether or not they have a place on a promotion list.'

340 At p 514, it was said: 'In making our assessment of the salaries which should be fixed we have not disregarded any aspect of the work of assistant teachers to which our attention was directed, but some aspects obviously have had more influence on us than others. The important considerations are that, by a disciplined course of study, teachers have acquired knowledge in certain fields and the skills necessary for imparting that knowledge to school children; that, as their duty demands, they have kept that knowledge and those skills abreast of change; and that, in their daily work, they us those skills to impart that knowledge. These matters provide the essential element in the value to the State of the work of teachers and it is upon them that, in assessing that value, our attention must be focused.

341 In these two awards, the various salary scales fixed for teachers are premised on these same ideas and concepts, not surprisingly, given their work and the history of wage fixation in these awards. It is undoubted that the current awards continue the salary scales which were common to awards applying to teachers employed in schools prior to 1990. The evidence in this case does not permit the view that there has been a change in the work of these teachers, which would lead the Commission to the conclusion that their work does not increase in value with added experience. To the contrary, Mrs Bardetta herself spoke of the value of mature teachers of experience and the desirability that they be employed by privately operated child care centres. She and other ACCC witnesses decried the idea that teachers with more experience should be more highly rewarded. Various other witnesses were concerned that teachers might be priced out of employment in this sector. The obvious point from all of this evidence was, however, that if experience did not add to the value of the work of these employees, there could not be any downside from a decision not to employ them. That was not the position which the employers advanced.

342 Similar considerations to that discussed in the 1964 Crown Teachers Case were recently discussed by the Full Bench in Re Health and Community Employees Psychologists (State) Award at para 60, where reference was made to Crown Employees (Scientific Officers - Division of Science Services Department of Agriculture) Award [1962] (NSW) 250 at 284. No departure from this longstanding approach was here established.

343 I do not doubt that these awards, in so far as they fix rates of pay for teachers having regard to both their academic training and their experience in teaching, approach the fixing of rates of pay on an appropriate basis, having in mind the obligations imposed upon the Commission by s10 of the Act, which requires that awards fix fair and reasonable conditions of employment.

344 I also note that the various awards which apply to schools provide for additional remuneration for teachers who acquire education beyond a bachelor's degree. That recognition is neither provided by these awards nor sought in these applications, although there was evidence of teachers covered by these applications going on to attain such higher qualifications, undoubtedly to the benefit of themselves, their employers and those children attending these centres.

345 There was also evidence of teachers pursuing additional qualifications ceasing their studies, because it would result in their being entitled to additional remuneration under the award, thus putting their employment in jeopardy. This evidence was entirely regrettable and no doubt explains why higher rates for those attaining a Masters degree has not been pursued. It was of course also consistent with evidence that some employers sought to employ lesser qualified and experienced teachers, in order to contain costs.

346 Recognition of acquisition of higher qualifications is but one of the differences in the award conditions which apply to teachers employed in various schools, preschools and long day care centres. I do not here propose to further review such matters, given that the parties did not explore these differences in the cases advanced. What can, however, be said as to each of the awards which the Commission has made, is that it reflects an acceptance by the award parties and the Commission that the award when made provided for fair and reasonable conditions of employment, having in mind the work to which it attached.

347 In the case of the two awards here under consideration, the parties reached an agreement in 1999, accepting that the Union was free to pursue this claim for further increases, given its view that rates of pay for these teachers had improperly fallen behind. It is that case which is now advanced.

348 The case was not advanced, as perhaps it might have been, under the Equal Remuneration Principle. The Union explained why that decision had been made. It was a decision which, interestingly, was taken against a background where part of the agreement reached in 1970 as to the making of the first award, was designed to achieve equal pay for teachers, particularly those employed in preschools and long day care centres, where mainly women were employed. This followed upon the enactment of the Industrial Arbitration (Female Rates) Amendment Act 1958, which dealt with equal pay for work of 'the same or a like nature and of equal value'. The evidence was that today it is almost entirely women who are employed as teachers under these awards, with considerable difficulty experienced in attracting or retaining any male teachers in the sector, or even into the degree courses which qualify them for such work, a matter of general concern.

349 While the employers resisted the notion that these teachers were underpaid, it is troubling that it is these teachers, predominantly women, who are employed to teach the youngest amongst us, who are the lowest paid of any of the teachers covered by the various awards put forward in the evidence. The employers of course contended that this should remain the position, which will only worsen over the life of the current awards applying to other teachers, where agreed increases are still being phased in.

350 While eschewing an application under the Equal Remuneration Principle, the Union nevertheless relied on this evidence as going to demonstrate its undervaluation case in these special case proceedings, without however claiming such undervaluation was the result of the predominant employment of women in the field.

351 I have thus approached this aspect of the case on the basis that the composition of this workforce is one of the features of these industries which must be taken into account in considering the respective cases advanced, although the claim not having been advanced under the Equal Remuneration Principle, the primary obligation is to ensure that the requirements of s 23 of the Act are fulfilled by the awards made.

352 I turn then to the evidence as to change. I have summarised in detail the evidence led. In 1990, the parties' agreement reflected that pre-school teachers should be paid similar rates to those of school teachers and that rates should be fixed 4% higher for teachers employed in long day care centres. This gave recognition to differences in conditions, especially face to face hours over the course of a week and the year. The parties then expressly recognised the importance of education in the early childhood sector.

353 Since then, there has been an increasing acceptance, worldwide, of the importance of education in the 0 to 5 year age group, for children's ongoing development. This has been influenced by ongoing research and study into the development of the human brain. These developments have already influenced the education being delivered by teachers in New South Wales employed in the centres here under consideration, because they have been reflected in various regulatory requirements. DOCS also requires evidence that these requirements are being met in the education which the centres provide to children when considering licensing renewals.

354 These developments are also being considered by the Department of Education, in relation to the curriculum taught to children in their early years of schooling. They have also been reflected in a new curriculum developed for these age groups by the Office of Children, which is shortly to become available to these centres, the curriculum having already been written and trialled in such centres across New South Wales.

355 There have been other changes too, which I will touch on below. While the employers urged the view that these changes had not affected the value of the work the teachers performed, or in the alternative only that of directors. I am well satisfied that these submissions must be rejected. These changes have plainly affected the work teachers are called upon to perform and in every substantial way. Directors have been even more affected.

356 All work changes over time and employees are expected, as a normal part of their work, to accommodate such changes. (See the discussion in NSW Office of the Board of Studies & New South Wales Teachers Federation (unreported, 17 December 1999) where reference is made to the Crown Employees (Toll Collectors, &c) Department of Main Roads Award (1987) 23 IR 254 at pp258-9.) That applies to the professional employees here in question. Indeed, it was a part of the employers' case that the evidence demonstrated that the changes identified were of such a kind that teachers were equipped to adapt to them, by virtue of their educational qualifications and that the changes merely formalised existing practices in a helpful way, rather than imposing additional work or requirements or any alteration in the value of the work.

357 Undoubtedly the evidence established that teachers were equipped to deal with these changes, although there was evidence of the need for inservice training in relation to a variety of these developments. Were it not so, the teachers could hardly have been called upon to meet the changes - other employees would have had to be employed to perform the work, or it would have had to have been managed in some other way. The fact that employees are able to meet changed work requirements, does not mean that the changed work has no increased value. That, after all, is what the Work Value Principle is concerned with, to measure whether the changes have led to the necessary change in value, as the principle describes.

358 Over the years a number of work value cases for teachers have been conducted before the Commission's predecessors. In 1970, in Re Crown Employees (Teachers - Department of Education) Award, a very substantial work value assessment was conducted, in relation to the work of Government school teachers, involving inspections at some 23 schools, evidence from 100 teachers, as well as academics and witnesses called by the employer. The case concerned the value of the work then performed by teachers and various promotional positions, with much evidence led as to changes which had occurred in their work since 1964, when the value of their work had last been considered. (See 1964 AR 509)

359 At pp467-8, when discussing the evidence led in relation to primary schools, the whole Bench observed that their task was to assess whether the value of the work of teachers had been materially increased by changes which had occurred since 1964, in a case which depended upon ' a gradual rather than a sudden and completely radical alteration in the work'. It was concluded that teaching had reached a higher professional plane and that: 'On the whole we have reached the conclusion for the reasons we will give that a case has been made out to warrant account being taken of change.

360 The Bench found progressive changes in teaching methods had occurred (p468), which made teaching more satisfying, but more exacting (p469). Reference was made to requirements for more reading and research, changes in recording and reporting requirements and the need for those in supervisory positions to help teachers understand the changes, which had not been sudden or 'cataclysmic, but progressive' (p469). Reference was made to changes in teaching aids and curriculum and syllabus changes (p470), as well as the need for in-service learning, with resulting significant changes in teaching standards (p472). Account was taken of the impact of changes on teachers and the resulting anxiety caused to many of them. Reference was also made to the impact upon principals, deputies and teachers of greater public awareness of education and its importance and the interest of parents in the progress of their own children, including while at primary school (p477). At p 518, the majority, the President, Beattie J and Cook J, concluded that the significant changes and increasing demands which had been demonstrated, made the application before it a special case. Increases of 14% were awarded as a result, together with various other increases for the positions of responsibility under consideration. That increase followed upon the interim award, which the Court Session had already made increasing rates by between 7 and 10% in the first year of the then three year award under consideration. Sheldon J, dissenting only as to the amount of the further increase, took the view that a further increase of 16% in salaries was warranted on the evidence.

361 While the 1970 Teachers' case was concerned with a different group of teachers and was dealt with under a different legislative scheme, it demonstrates the types of changes in work, which in the past have led to wage increases being awarded to teachers on work value grounds. Similar approaches were later taken in other cases earlier referred to. This has been of real assistance in considering the submissions here advanced by the employers, that the changes here in question, do not establish any basis for work value change.

362 These decisions, it might be noted, are not irrelevant to the teachers who here arise for consideration, forming an undoubted part of the background to the hitherto agreed history of wage fixing, which long included the recognition that these teachers should be paid rates similar to those paid to teachers employed in schools, commencing with the first agreement in 1970. I say, similar and not identical, because there has never been a history of automatic adjustment of rates in these awards, by reference to rates paid in schools. Rather, the award parties have looked to those rates over the years, when the rates fixed by the predecessors to these awards have arisen for review from time to time. Indeed, there was reference to this in the submissions advanced before Bauer J in 1990.

363 I here make these observations because the employers' attitudes and the cases they pursued before the Commission appeared to have been advanced without any regard being paid to this history, nor even to the basis upon which in the past, the Commission had accepted changes in the value of the work of teachers had been established.

364 In coming to its conclusion in 1970, the majority of the Full Bench observed at p514 that the task before them was to determine salaries which would provide just and reasonable remuneration for a period of two years. This was described as follows, at pp514 to 515: 'It is a very difficult and responsible task. We are very conscious of the vital importance to the community of the teaching profession and of the need to ensure that the members of the profession are accorded a proper standard of remuneration. While it is not part of the function of a salary-fixing tribunal to attempt to alleviate a shortage of workers in a particular calling by fixing rates designed to attract new workers, we are aware that there are not sufficient teachers at present available to meet the needs of the Department of Education particularly in the fields of science and mathematics and we are conscious of the fact that an erroneous judgment on our part could result in a deterioration of the present staffing problems either because more teachers resign or because insufficient recruits are attracted to the Teaching Service. We are also not unmindful of the fact that an award which increases the salaries of teachers in a substantial degree cannot but be very costly to the State. These various matters are in our minds because we regard it as our duty, as members of this Commission always have, to pay regard to the public interest. We may mention, incidentally, that the Board did not raise any question concerning the impact on the finances of the State of any award we might make. It is, of course, an important aspect of the public interest that the schools should be staffed by well-qualified teachers who are rewarded for their services at proper levels of remuneration for professional work.'

365 Sheldon J, who dissented on the amount of the increase to be awarded, observed at p521: 'The heart of education is teaching. Buildings, equipment, high level planning and new educational philosophies are essential in an efficient and progressive system of education. But all this is meaningless waste unless it bears fruit in the classrooms where today thousands of individual teachers communicate with hundreds of thousands of individual children. All the departmental planning, organization and academic groundwork are channelled towards this personal relationship and in the end education is made or broken on the anvil of the human efforts, qualities and ideals of these teachers. It must follow that, great as many be the cost of planning the salaries of teachers at a reasonable level, this is something which the conscience of the community must face. To do otherwise would be to exploit one section of the community in the supposed interests of all. Such an approach, originally based on the conception that some work is so vital that those who make it their vocation can be expected partially to live off their dedication, is today completely outmoded. It is certainly short-sighted. In truth the cost of providing reasonable salaries for teachers is, I believe, less a public burden than a public investment which must return very real dividends although, not being based on material values, they can never be quantified. The validity of the views I have formed must be judged less on general sentiments such as I have expressed than on the facts established in this case. The evidence, analysed in the preceding sections of this judgment, proves that the salaries of teachers, even allowing for the interim award, need substantial reappraisal.'

366 That the salaries of the teachers employed under these two awards, on the evidence led in this case, are likewise due for such reappraisal, cannot be doubted. Nor can it be doubted, in the face of the ongoing research about which the parties led evidence, that teachers now employed in the early childhood sector, perform important work, which is required by the Government to be delivered by these employers in the services which they operate, with a variety of Government support. In many cases teachers must be employed to deliver these requirements. Families in our society are increasingly availing themselves of the benefit of this work, for their children. I am well satisfied that if these services in New South Wales are truly in the vanguard in meeting these educational expectations, that teachers' work is contributing significantly to that result. This, too, is an important aspect of the public interest, especially given the now well understood impact which such education has on children's future development, in a variety of ways of general importance to society.

367 The evidence here amply demonstrated changes of the kinds discussed by the Full Bench in the 1970 Teachers' case and in the other cases earlier referred to, such as more required reading and research, changes in recording and reporting requirements, increased in-service requirements, an increasing emphasis on higher standards and increasing public interest in, and increasing public awareness, of the importance of education for children of this age, as well as a plethora of altering regulatory requirements which has affected both the conditions under which the work is performed in a variety of ways, as well as the work itself. That significant changes in work sufficient to meet the requirements of the Work Value Principle were established on the evidence cannot be doubted.

368 A number of changes were relied on by the Union which can be discussed under a number of broad categories. Firstly changes in the way children attending preschools and long day care centres are taught, having in mind research into how children learn and how the brain develops. This was a consistent theme in the evidence, including in that of employer witness.

369 None of the witnesses were cross examined as to whether such changes had in truth occurred, perhaps not unsurprisingly, given that such changes are now looked for by DOCS, when visiting centres to consider relicensing applications and have been included in newly developed curriculum documents. It was common ground that such changes had occurred, but on the employer's approach, they were not changes of substance and had led to no alteration in the value of the work of the teachers implementing these developments. I cannot accept that view, especially when these developments were taken into account with the other changes demonstrated.

370 The employers' adopted a similar approach in relation to the changes flowing from the altered regulatory environment. There were various changes of significance. The first was in the regulatory licensing scheme which had altered from a short general statement in the 1989 Regulation, as to what was required, to detailed prescription in the 1996 Regulation, which had required considerable work to be performed by teachers at centres to write and implement new policies in relation to a host of matters and then to implement these changes. This was delivered through the RAT process. While it may be true that these were matters which had always been dealt with in the past, in one way or another, now detailed regulation on a best practice basis was introduced and required to be met through an onerous self assessment process. Witness after witness gave evidence of the work involved in ensuring these requirements were met and the change in emphasis which they had led to.

371 There was also evidence given as to the Commonwealth Quality Assurance scheme, the subject of further change as the case developed. Again, there was no challenge that the new scheme had been introduced, but on the employers' case, it had had no consequence for the value of the work performed. The system is also one of self assessment, in connection with 52 principles. Accreditation is obtained for 1, 2 or 3 years, depending upon a review of the assessment, which is then subject to moderation. Ms Hammersley gave evidence of her work in conducting such peer reviews (as a volunteer, outside her normal duties as director). On the evidence there can be no doubt that considerable work is performed by teachers in meeting this assessment task not previously required and in ensuring that what results is actually implemented.

372 This system applies to long day care centres, not preschools. Extension to preschools is apparently however under consideration. While Mrs Bardetta was giving her evidence, it came to the parties' attention that these requirements had again been altered. Mrs Bardetta's evidence was that this would not lead to any significant changes in requirements. Whether that proves to be so cannot be here determined.

373 The third area of change in the regulatory environment has been the enactment of various pieces of child protection legislation, as the result of the Wood Royal Commission. Again there was no challenge that the changes had occurred, but the view taken by employers that no increase in work value had resulted.

374 Again witness after witness described the work performed in order to learn about the changes, to develop policies to ensure compliance with the legislative requirements and the changes in work which flowed from their implementation, including increased overtime and decline in volunteer working in centres.

375 I have no doubt that these changes have affected the work of teachers in a dramatic way, reflective of a very deliberate decision on the part of Government to more closely regulate adults' contact with young children in a variety of situations, as the result of the distressing revelations before the Royal Commission. These developments were admirable, but have undoubtedly affected the conditions under which teachers performed their work and have added to their responsibilities.

376 The witnesses touched on other changes - an increased emphasis upon school transition, with additional reporting requirements and a closer co-operative working relationship with local schools; increases in the number of children with special needs, both as the result of the removal from the Regulation of maximum numbers of such children with such needs who may be enrolled in such centres and an increase in the number of children with more serious disabilities being integrated into pre-schools, as the result of changed policies and attitudes. In part these changes had flowed from identification of problems, in relation to school readiness and the need for integration of children with special needs. Teachers resulting work with school teachers and authorities in the first case and both parents and various therapists, to address diagnosed problems, in the second, had changed. The resistance of parents to the idea that such special needs should be identified and addressed have also lessened. Again, I have no doubt that these changes have occurred and that they have affected the work of teachers. Mr Alchin's evidence as to the resistance of his centres to accept increased enrolments of this kind demonstrated precisely the additional requirements which the teaching of special needs children places on teachers. While in some cases additional funding is available in order to employ additional carers, to help with the work involved with these children, that is not always the case and itself demonstrates the extra demands which such enrolments give rise to. That a teacher's work is affected by the increasing numbers of children in the class with such needs, is simply not open to doubt. Nor that greater work on school readiness programmes, has also affected their work.

377 Many witnesses spoke of the increase in the total number of children taught in a week at a centre, as the result of changing enrolment patterns, with a resulting increase in the total number of children taught. While teaching hours had not increased as a result, the number of children who had to be observed and for whom individual programmes had to be prepared and implemented and later reported to parents, had. I am well satisfied on the evidence as to how teaching is required to be delivered in these centres, that this development has lead to an overall increase in workload of teachers.

378 I note at this point, that it was the submission of EF that increases in workload could not themselves demonstrate any increase in work value and should not lead to increased rates of pay. I am far from satisfied that this view is correct. Nevertheless, I am also satisfied that increases in workload can lead to an improvement in productivity, particularly when, as here, extra work is required to be performed during ordinary working hours, without additional payment. Improved productivity can just as readily flow from employees having to meet increased requirements externally imposed upon an employer, as it can arise from those imposed by employers themselves without coercion, or those agreed in award negotiations.

379 Productivity improvements at one time were dealt with at a national or State level, in regular wage case adjustments, rather than in proceedings such as this. That is no longer the scheme which operates, either at a national or State level, given the safety net basis upon which awards are nowadays fixed under the Workplace Relations Act 1996 (Cth). While reliance was placed upon the decision of Commissioner Stanton in Re Nursing Staff (Other than Hospital Employees) ACT Rates of Pay Award 1970 (Unreported, Print C6679, 25 June 1976) for the submissions advanced in relation to this aspect of the case, the danger of such a reliance is apparent when differences in the respective legislative schemes, as reflected in the then applicable national and State Wage Case decisions, are considered. Some differences were earlier outlined. The current legislative differences in the State and Federal schemes were discussed in Re Pastoral Industry (State) Award (2000) 104 IR 168. This is of relevance, as earlier outlined.

380 The agreements which parties reach and reflect in consent awards made under the Act nowadays commonly have regard to productivity improvements. When parties cannot agree on such matters and such claims are advanced for consideration in special case proceedings such as these, there is no legislative, or other impediment, to such matters being properly taken into account and being reflected in the rates and conditions fixed by the award made by the Commission as a result.

381 I also observe at this point that the evidence that various changes had impacted upon the work of licensees and not the teachers they employed, was far from convincing. There was evidence of very different approaches to various requirements being adopted, depending on who a licensee was, their interest in the business, their qualifications and other commitments. There was also evidence of licensees making very different requirements of teachers, in relation to a variety of matters. Even in the case of those centres where licensees were very active on a day to day basis, there was evidence, for example, in connection with requirements for the writing and implementation of a variety of new policies, of teachers being called upon to do the writing itself in some cases and in others, where that was not the case, feedback was required from the teachers on the policies others had written. They were also involved in attending meetings with parents, when the policies were discussed and settled with them. Teachers of course, like other child care workers, then implemented the resulting new policies.

382 The case advance by the Union was criticised because of a lack of evidence, it was said for the ACCC, in relation to privately operated long day care centres. I am well satisfied that the evidence did not demonstrate such differences in the work of teachers employed in privately operated for profit centres, as compared to others, that a different view should be taken of the case of changes in work made out, so far as they were concerned. This conclusion flowed not only from the fact that the teachers here employed were employed under the same awards as the not for profit centres, but also because they operated under the same regulatory and legislative regime, providing for similar care and education of children of similar ages. Nor do I accept that these changes can be dismissed, as simply reflecting various pre-existing practices. Even if some of those factors earlier existed, the evidence demonstrated that more stringent requirements were now made. The evidence suggested that former best practices operating in some centres, is now required to be adhered to as the standard minimum requirements. Teachers were required to develop, implement and adhere to those requirements. That others, such as licensees and child care workers, were also involved or affected, cannot take away from such a conclusion.

383 As I have noted, I am satisfied that the changes identified in the evidence establish both changes in work sufficient to satisfy the requirements of the work value principle and that the evidence also otherwise established alterations, including productivity improvements, which warranted the conclusion that the work here in question is at present significantly undervalued.

384 Before I turn to consider rates, it is convenient to touch upon certain aspects of the evidence which was certainly troubling, but which I am satisfied are not proper to take into account in determining appropriate increases.

385 That the witnesses called by the ACCC emphasised the importance of the viability of their businesses was of course understandable, as I have already observed. They, after all, are the employers, often small family businesses, who own and operate their centres for profit, thereby enabling the employment of the teachers here under consideration. Community run centres, which operate, on a not for profit basis, on a similar basis to schools whether Government or non-Government, nevertheless, also had concerns about viability. At the end of the day, all of these matters are, however, not relevant to a consideration of the evidence led as to changes in work value or the undervaluation claim. As Sheldon J observed in the 1970 Teachers' case, teachers who work in the early childhood sector cannot be expected to partially live off their dedication.

386 Much of the employers' concern emerged from the operation of the Regulations, which fix staff:child ratios, and require the employment of certain numbers of teachers in particular situations and apply equally to privately owned and community based child care centres.

387 While those Regulations require the employment of a qualified teacher in centres with more than 29 students, there was evidence that teachers were employed in some smaller centres, even when that was not required by the Regulation. There was no evidence which suggested that the financial viability of such centres had thereby been jeopardised. Conversely, there was evidence from employers operating privately owned centres, that they would prefer to operate without employing any teachers at all, even in centres with more than 29 students. Some centres even reduced their place numbers in order to ensure that teachers were not required to be employed.

388 The evidence was that other States did not impose requirements as to the employment of qualified teachers in long day care centres, which still obtained accreditation, even for 3 years, the longest period available. In the view of ACCC members, there would be no detrimental effect on the care which the centres would provide to children, if teachers were not employed. This however is not a question which I am called upon to decide.

389 It is undoubtedly the case that centres operated without the employment of any teachers, deliver a proper level of child care, so as to enable them to achieve licensing under the relevant Regulations, where that is permitted, namely those licensed for fewer than 29 places. The evidence suggested that this is subject to review, with a recommendation from various employers being considered that the requirement should be introduced at 15 places. Such centres have also obtained accreditation, in many cases for up to 3 years. What standard of educational programme is delivered to the children who attend centres which do not employ teachers, or whether that standard would be improved if a teacher were employed, are also not issues which fall here to be determined, notwithstanding the evidence led as to the competing views about such matters. Nor can the Commission alter the regulatory requirements as to the employment of teachers. These matters do not affect the assessment of the wage increases here warranted.

390 It was obvious from the evidence that the cost of operating centres would be reduced if employers were not required to employ teachers, presumably leading to an increase in operating profits for the owners of private businesses. There is nothing amiss with an employer seeking to maximise profits, they are, after all, run for reasons of profit, not altruism. Given the support which such centres receive from Government, it is perhaps not surprising that this Regulation has never been relaxed. In any event, in this State, under the Act, aspirations to remove the requirement for the employment of teachers cannot be pursued at the expense of the awarding of fair and reasonable conditions of employment as required by s10. Teachers are entitled to fair payment for their work.

391 There was also evidence led in relation to difficulty in recruitment of staff by the preschools and long day care centres covered by these two awards. Some witnesses gave evidence about the desirability of salaries being increased, for attraction and retention of staff. Others doubted whether this would have an impact. Wage increases are undoubtedly regarded as a useful device and are often used by employers for this purpose. Consistently with the requirements of the Act, rates in these awards are fixed as minima and there is thus nothing to preclude employers paying higher than award rates of pay, if they chose. There was indeed evidence that higher rates were being paid by some employers.

392 It might be the case that such agreements were directed in part to retention or attraction of staff. That is not usually an award provision, although there are exceptions. Awards aiming to provide employees with appropriate career paths, is in part to meet concerns such as these. Nevertheless, the Commission's wage fixing principles do not provide for attraction or retention payments being awarded. (See the Full Bench in Local Courts Anomaly Case at p643). To the contrary, they are concerned to ensure that award rates of pay have regard to matters such as skill, responsibility and the conditions under which work is performed. As the various Full Bench decisions earlier referred to have observed, attraction and retention can be but a by-product of the proper fixation of rates of pay by the Commission in proceedings such as these.

393 Award parties may of course consent to wage increases designed to achieve such purposes. There was, however, no evidence that this has formed a part of the rates fixed in any of the awards here under consideration. To the contrary, the award applying to Government school teachers, for example, provide additional allowances designed to increase payments to teachers accepting employment in certain locations.

394 The difficult question which the Commission must come to grips with here, is how the demonstrated undervaluation of this work is to be remedied. I am well satisfied that a case has been made out for significant wage increases and that a fair assessment of proper rates for the teachers employed under these awards, cannot be made in a context where rates paid to other similarly qualified and experienced teachers is ignored. Indeed in their final submissions the employers conceded the necessity of such an approach, given the terms of the Work Value principle, but still urged that the same rates would not be awarded as those paid to teachers employed in schools, even if the view were reached that wage increases were warranted.

395 In 1990 the parties agreed that the nexus between these awards and those applying to schools should no longer operate. Of course, that was at a time when rates for teachers employed in long day care were agreed to be 4% higher than those of school teachers and those of preschool teachers the same as those applying to schools. That position was abandoned by the employers in 1999 and now they seek rates, which over time, will be 26% lower than those for teachers employed in schools. I am utterly convinced on the evidence that such a differential can not be awarded. It would not result in fair and reasonable conditions of employment for these teachers.

396 Nor, however, have I been able to conclude on the evidence, that precisely the same rates should here be awarded, as those paid to teachers employed in Catholic and Government schools. I do not exclude the possibility that a case for such rates could be made out, but have taken the view that it would require a closer examination of the basis upon which increases for such teachers were agreed under the awards being relied upon, together with a more detailed investigation of the similarities and differences in the work of the two groups than was here undertaken. That is not to say that I accept the views expressed by employer witnesses as to the nature of the differences in the work of teachers employed in early childhood and those employed in schools. I am convinced that no proper basis for such views was demonstrated. Nevertheless, I am not convinced that on the evidence here led, the rates claimed can be awarded.

397 This conclusion was unavoidable, given the evidence led and the existing legislative scheme, which has given rise to the current award position. This claim was advanced in circumstances where salaries paid to teachers with similar qualifications and experiences, has over recent years fragmented markedly, depending upon by whom they are employed and in what sector of the teaching industry.

398 The legislative regime altered significantly in 1992, with the repeal of the 1940 Act and the enactment of the 1991 Act, itself repealed in 1996, when the Act was enacted. The Wage Fixing Principles fixed under that legislation have also altered significantly over that time. As was observed in Transport Industry - Waste Collection and Recycling State Award (Unreported; Wright J President, Hungerford J and Patterson C; 30 January 2001) at p8: 'As is clear from these references to the background to the making of the principles, they developed because of the objectives of both the Industrial Relations Act 1991 and the Industrial Relations Act 1996 that there should be a "process of devolution of industrial affairs to the parties" and the recognition that, where parties are in agreement as to the terms of their industrial arrangements, the Commission should be "less prescriptive" and "less interventionist".'

399 The end result for teachers has been wage differentials, not only between the two groups of teachers here under consideration, but also within those groups themselves, there being evidence of agreements, including enterprise agreements approved under the Act, providing for wage increases, having been reached by the Union with some employers covered by these awards. Wage differentials now also exist between Government and non-Government school teachers; teachers employed within different parts of the Catholic school systems, those employed in other non-Government schools and those employed in other early childhood services. In this State there are now many different rates of pay applying under various industrial instruments to teachers employed in schools, preschools and long day care centres

400 What agreements were reached in relation to these various rates of pay was in the main unclear on the evidence. It is thus not possible to ascertain precisely how, or why, the various rates were fixed, although it is undoubted that current rates of pay reflect various agreements reached between the relevant parties over the years and in some cases, decisions of the Commission. What such agreements comprehended is difficult to say. It is entirely possible, and no doubt likely, that they reflect wage increases agreed having regard to productivity improvements and accepted work value increases. While there was no evidence about this, they could also have included a whole host of other matters, such as attraction and retention payments, an issue which arose here. On the evidence, it is, however, not possible to know, nor helpful to speculate. As I have noted there are also significant differences in award conditions not explored in these proceedings.

401 In those circumstances, I have refrained from the undeniably attractive option of simply awarding the rates claimed, as reflecting the rates paid to many school teachers, having in mind the evidence of the similarities in the work performed by these teachers, compared to those employed in schools, as well as their respective responsibilities. The fact that some teachers employed in preschools also already receive the rates here claimed under the awards which apply to them, made this even more attractive, but there was no evidence led as to that work or the circumstances in which that agreement was made. The end result is that the rates fixed by these awards, will increase significantly during the term of these awards, but will not exceed those paid to teachers in schools. It may be that in other proceedings a different result could emerge in future. I am satisfied that this is a proper result on the case and the evidence here advanced.

402 It is convenient to deal at this point with concerns about flow on. Given the many awards which now apply to teachers employed in preschools and long day care centres, it seems likely that the parties to those awards will consider this decision, when such awards arise for review. That seems inevitable, given the history of award regulation of these industries and the likely position that there will be many similarities between the work of the teachers employed under the various awards, particularly given the regulatory regime under which they operate. Such an unavoidable result is not a reason for refusing the wage increases here made out on the evidence. Undoubtedly the parties to those awards will take appropriate account of the decision, given their own circumstances. Indeed there was evidence that the parties to some awards, had already agreed to discuss the outcome of these proceedings with each other, in their own circumstances. Various Catholic employers, for example, agreed to a 5.5% increase from 28 February 2001, with an undertaking to further review the position in 2002, in the light of this decision. If parties to other awards have such discussions, cannot agree with each other and a case is pursued before the Commission, it too will have to be demonstrated on the evidence. The principles do not permit automatic flow ons.

403 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.

404 Labour costs account for a large part of operating costs of these services. Wage increases, whether agreed or awarded by the Commission, are undoubtedly likely to be reflected in fee increases for parents, unless increased funding flows from Governments, other operating costs can be reduced, which seems unlikely on the evidence, or in the case of privately owned centres, proprietors are prepared to accept smaller profit levels.

405 On the evidence, there was no reason to expect that funding increases will emerge, although it seems that there are current discussions underway about the freeze on State funding of preschools, which has been in place since 1990. I have been concerned to take these difficulties into proper account in the award made.

406 I also have taken the view that the fixing of fair and reasonable conditions of employment should not result in the employees the subject of that consideration being put out of work. The converse is also true. The employees' rates of pay should not be fixed at such a level that they are required to support what, in reality, would be an unviable business, if fair rates had to be paid for the work in question. Nor should rates be fixed on a basis, which, in reality, had the effect that teachers were required to subsidise the fees which parents should fairly be paying for the service which they are availing themselves of for their children.

407 It follows that there is good reason to adopt the approach advocated by the Union, in its application for the increases awarded, to be phased in. The Union sought initially to have a significant amount of retrospectivity awarded, but accepted in its closing submissions that a proper basis had not been established for a departure from the normal approach, that increases should operate prospectively.

408 That concession was a responsible one in the light of all of the evidence. The wage increases awarded will operate prospectively in 2002, thereby providing employers with a further, albeit short, period to deal with the wage increases which will now flow. The award will operate from the beginning of the first pay period to commence on or after 1 January and will provide for phased increases over the life of the award, in order to permit those increases to be planned and budgeted.

409 Having in mind the basis upon which the difference between the work of teachers employed in preschools and long day care centres, was established before Bauer J in 1990, the awards will maintain the 4% difference in rates then established. There was no real suggestion for any alteration in that position by any party and no reason established on the evidence for any such departure. 410 In determining the appropriate level of increases, I have also had regard to the history of wage movements agreed between the parties since 1990. That was appropriate, not only given the observations then made by Bauer J, but also the consideration given to the two awards here under consideration in a decision which I gave on 16 December 1994, in Re Teachers (Non-Government Early Childhood Service Centre other than Pre-Schools) (State) Award, in which there was a contest, in part about wage increases in the two awards, I said at p21 to 22: 'The IEU and EF agreed that rates of pay should be increased by 4.9% in two stages - 3% at the date of decision and 1.9% four months later. The ACCC's position was that both amount and time of payment of the increase should differ slightly (2.5% from 5 December 1994 and 2.4% from April 1995), although the total quantum was the same as that agreed by the IEU and EF.

Rates in this Award have not been varied since 1990. Teachers have not yet had the benefit of the $8 increase available under the December 1993 State Wage Case decision. It was accepted by the IEU that the rates flowing from this judgment are inclusive of that available under the December 1993 State Wage Case .

In those circumstances and having regard to the evidence of the work performed by teachers under this Award and the changes which have taken place, it seems to me that it would be inappropriate to accede to the ACCC position, which was predicated on the basis that it was designed to save centres money over the Christmas period when many of them are closed and therefore not deriving income through fees. That factor it seems to me must be weighed against the benefit which centres have enjoyed by not having had to pay an increase available to teachers under the December 1993 State Wage Case for some 12 months now.

The Award will accordingly reflect the position as to rates agreed by the IEU and the EF.'

411 Since then wage rates moved in 1999, when agreement to this claim being advanced was also reached. The conclusion which I have reached is that the award should provide for the following increase: 2002 - January 5% - July 3% 2003 - January 3% July 3% 2004 - January 3% July 3% 20

Directors' Allowances 412 Directors are paid the appropriate award rate for teachers, having in mind their qualifications and teaching experience, together with an allowance, fixed by reference to the size of the centre at which they are employed. This claim was for phased increases in these allowances, so as to bring them into line with those paid to various promotional positions fixed by other awards. In closing submissions the Union conceded that no evidence had been directed towards establishing such an approach to the fixation of these allowances. No such relationships had existed in the past.

413 A director is defined in the awards as a teacher who: Teachers (Non-Government Early Childhood Service Centres other than Pre-Schools) (State) Award "Director" means the teacher is responsible for the day to day operation of the Early Childhood Services Centre as defined in sub-clause (d) of this clause, holding Early childhood qualifications as defined in sub-clause (p), (q), (r) and (s) of this clause Teachers (Non-Government Pre-Schools) (State) Award "Director" means the teacher who is responsible for the day to day operation of a Pre-School, as defined in sub-clause (c) of this clause.

414 The evidence of the changes in the Regulations which govern the operation of both long day care centres and preschools was, that while in the past the Regulations made provision for the employment of a director, they now deal with two separate roles - that of licensee of the service and that of the authorised supervisor.

415 The evidence was that not all centres employ directors. Particularly in the case of privately owned centres, some licensees operate the centres so that while a teacher might be employed, that teacher is not appointed as either a director, or as authorised supervisor of the centre. In some such centres, the owner holds both positions. In others, a teacher might be appointed as authorised supervisor for the purpose of the Regulation, but not as a director under the award. It appears that some teachers, so appointed, receive no additional remuneration for the work performed, although there was evidence of teachers declining appointment as authorised supervisor, if they received no additional payment for that work. It is undoubted, on the evidence, that it is work which, in fairness, warrants additional payment.

416 Under the Regulations, either a teacher or a child care worker may be appointed as authorised supervisor. There was evidence that DOCS was reluctant to approve appointment of a child care worker as an authorised supervisor, if a teacher was employed at the centre, unless the teacher refused the appointment. The award applying to child care workers provides an allowance to be paid, when such an appointment is accepted.

417 The evidence led for the ACCC was that in its view the director's allowance was not designed for teachers appointed as authorised supervisors, but rather as directors. I raised with the parties during the course of the hearing the difficulty which appeared to be emerging on the evidence, namely that teachers who were appointed as authorised supervisors, were paid nothing in return for that work, when they were not appointed director. This pattern appeared to exist in the main in privately operated long day care centres. The parties did not oppose taking the opportunity to discuss whether some agreed accommodation could be reached in relation to this situation. They later reported that they had been unable to reach any agreement.

418 The evidence of some witnesses called by the ACCC also suggested that in their centres, even where a teacher was appointed as the authorised supervisor, the licensees generally performed the work of that position, rather than the teacher. Other evidence suggested to the contrary, for example that of Mrs Skoulogenis. Evidence was called by the Union that in other centres, licensees' only involvement in the day to day running of the centre was when they visited the centre to pay staff, or in other cases, to meet with parents or to attend staff meetings and that they delegated many of their responsibilities to the authorised supervisor. The suggestion that teachers appointed to the position of authorised supervisor were not, in fact, required to perform the work required of that person under the Regulation, was difficult to accept and I reject it on the evidence.

419 On the evidence, I am satisfied that the work of directors has been affected by the changes identified, to an even greater degree than the teachers covered by the award. The evidence called by EF supported this, giving rise no doubt to its alternative submission. There was no evidence that any teacher who was appointed to the position of director, was not also appointed as the authorised supervisor. Like the position of the teacher, there was evidence of significant change in the work and responsibilities of directors, sufficient to warrant an increase in their remuneration, in addition to the increases flowing to teachers. I have therefore also concluded that it is appropriate to adjust the award directors' allowances by an overall 30%. Those increases will also be phased in, in six adjustments of 5% over the life of the award, six months' apart, commencing on the first pay period commencing on or after 1 January.

420 I have also concluded on the evidence that the awards will not provide for fair and reasonable conditions of employment, unless provision is made for an allowance to be paid to teachers who are not appointed as directors, but as authorised supervisors, given the evidence of the additional duties which they are thereby required to perform, but for which they receive no payment under the awards. I will hear the parties further on the necessary definitions and other provisions to be included in the awards, to make provision for such an allowance, if they cannot agree on those matters. Before fixing the rate of the allowance, I will receive any submissions which the parties wish to advance in relation to the appropriate amount of the allowance. It will, of course, be fixed at a rate lower than that of the director. This allowance too will operate from the commencement of the award and will be increased at the same time as the other increases awarded over the life of the award. The matter will be listed on 7 February at 9:30am, to program further consideration of these matters, if the parties are unable to reach agreement about them in the meantime.

421 I turn then to the two conditions claims finally advanced. I am satisfied that both should be awarded. As to the public holiday provision, there was formal opposition to the provision claimed, persisted with even in the face of the employer witnesses concessions in cross examination, that there was no real difficulty with the claim. I am satisfied that it should be included, because it will plainly effect an improved understanding of how public holidays operate in the State and for these employees.

422 The overtime claim for the long day care award was resisted, with the view of one employer witness being, for example, that she was not aware of unreasonable amounts of overtime being required. Other employers were careful to suggest that attendance at staff meetings and meetings with parents outside normal operating hours was voluntary and not required. Others gave evidence of informal arrangements made for time in lieu to be taken when overtime was worked, or overtime payments to be made, notwithstanding the absence of an award entitlement for such arrangements.

423 Having regard to the evidence as to the face to face hours worked by these teachers, namely 38 per week over 48 weeks of the year and the evidence of unpaid and paid overtime presently being worked, I could see no fair or proper basis upon which this claim could be refused. If employees are required to work overtime in addition to their normal 38 hours per week of ordinary hours, they should be paid therefore. I was confirmed in that conclusion by the terms of the clause which the Union pursued at the hearing, to which the case was directed. The parties took the opportunity to further discuss the provision proposed, particularly as to pay in lieu being included. Again, no agreement could be reached on terms and while there was no concession as to the inclusion of such a provision, competing clauses emerged.

424 I have concluded that the clause, as contained in the amended application, should be awarded, together with the time in lieu provision filed by the EF on 11 December and supported by ACCC. On that day a significantly altered overtime proposal also emerged from the Union, which included changes in addition to those concerning time in lieu. It is not appropriate to entertain such a late amendment of the claim, nor am I satisfied that the provisions are appropriate, given the evidence here as to the working of overtime.

425 On 12 December, the parties reported that the two current awards had been dealt with by the Commission on 11 December in other proceedings brought under s19 of the Act. They agreed that the changes to the awards made in those proceedings, should be incorporated in the new awards to be made in these proceedings, apart from rates of pay. They also indicated that it had been agreed that increases in rates of pay to a number of the lower steps of the salary scales, designed in the s19 proceedings to reflect State Wage Case increases, should be absorbed into any increases here awarded.

426 Having those agreements in mind, I am satisfied that it is appropriate to order that such agreed adjustments be incorporated in the two awards made to give effect to this decision.

427 For all of these reasons, I make the two new awards in the terms sought, subject to the conditions, salary increases and allowances provided by the awards reflecting this decision. The awards will operate from the beginning of the first pay period to commence on or after 1 January 2002.

428 The parties are directed to confer and to prepare award documents to give effect to this decision. The matter will be listed for further programming, in relation to the allowance for authorised supervisors if necessary, on 7 February 2002. ------------------------

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.