Teachers (Non-Government Pre Schools) (State) Award [2001] NSWIRComm 335 - NSWIRComm 1998 case summary — Zoe

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

[2001] NSWIRComm 335

Industrial Relations Commission (NSW)|1998-12-18|Before: Schmidt J, Fisher P, Sweeney J, Varnum DP, Wright J, Hungerford J

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At a glance

Source facts

Court

Industrial Relations Commission (NSW)

Decision date

1998-12-18

Before

Schmidt J, Fisher P, Sweeney J, Varnum DP, Wright J

Source

Original judgment source is linked above.

Judgment (451 paragraphs)

[1]

CITATION : Teachers (Non-Government Pre Schools) (State) Award [2001] NSWIRComm 335 revised - 05/02/2002 New South Wales Independent Education Union PARTIES : Employers First Association of Child Care Centres FILE NUMBER: IRC 2261 and IRC 2262 of 2000 CORAM: Schmidt J CATCHWORDS : Award - Special Case - Teachers employed in Pre-schools and Long day Care Centres - Rates of Pay and Conditions of Employment - Work Value changes established - Other undervaluation of work established - Significant pay increases awarded - Public holiday provision awarded - overtime provision awarded - Allowance for authorised supervisors also awarded - Parties directed to confer on amount of allowances and final terms of awards to give effect to decision Industrial Relations Act 1991 Industrial Relations Act 1996 LEGISLATION CITED : Industrial Arbitration Act 1940 Industrial Arbitration (Female Rates) Amendment Act 1958 Children Care and Protection Act 1998 Workplace Relations Act 1996 Crown Employees (National Art School Lecturers) Salaries and Conditions and Part Time/Casuals Rates of Pay and Conditions Award 1997 (Unreported, Schmidt J,18 December 1998) Crown Employees (Scientific Officers - Division of Science Services Department of Agriculture) Award [1962] (NSW) 250 at 284 Crown Employees (Toll Collectors, &c) Department of Main Roads Award (1987) 23 IR 254 In re Crown Employees (Teachers) Awards [1980] AR 910 In re Crown Employees (Teachers Department of Education) Award [1970] AR 345 Metal, Engineering and Associated Industries Award, 1998 - Part 1 (Print T4991 29 December 2000) Miscellaneous Workers - Kindergarten and Child Care Centres (State) Award (unreported, 23 August 2000) NSW Office of the Board of Studies & New South Wales Teachers Federation (unreported, Schmidt J, 17 December 1999) NSW TAFE Commission Teachers (TAFE Children's Centres) Salaries and Conditions Award (Unreported, Schmidt J, 23 April 1999) Pastoral Industry (State) Award (2000) 104 IR 168 at 184 CASES CITED : Re Corrections Health Service Nurses' (State) Award (No 2) [2001] NSWIRComm 58 Re Crown Employees (Administrative and Clerical Officers) (State) Award and Other Awards (No 2) (1993) 52 IR 243 State Part-Time Work Case (1998) 78 IR 172 State Wage Case 2001 (2001) 104 IR 438 State Wage Case August 1988 (1988) 26 IR 24 Teachers (Non-Government Schools (State) Award and Other Awards (Unreported, Fisher P, Sweeney J and Varnum DP, 17 August 1990) Re Health and Community Employees Psychologists (State) Award [2001] NSWIRComm 302 Re Social and Community Services Employees (State) Award [2001] NSWIRComm 274 Re Teachers (Non-Government Early Childhood Service Centre other than Pre-Schools) (State) Award (unreported, Schmidt J, 16 December 1994) Re Transport Industry (State) Award (1996) 95 IR 126 Transport Industry - Waste Collection and Recycling State Award (Unreported, Wright J President, Hungerford J and Patterson C, 30 January 2001)

[22]

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.'

[93]

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.'