Industrial Relations Commission of New South Wales CITATION: Teachers (Non Government Early Childhood Service Centres other than Preschools) (State) Award 2006 [2009] NSWIRComm 198 New South Wales Independent Education Union (Applicant) PARTIES: Australian Federation of Employers and Industries (Respondent) Association of Quality Child Care Centres of NSW Inc (Respondent) FILE NUMBER(S): IRC 2349, 2351 of 2008; and IRC 1188, 1189 of 2009 CORAM: Boland J President; Walton J Vice-President; Bishop C CATCHWORDS: AWARD – special case – work value changes – Commission's wage fixing principles – early childhood education – preschool & long day care teachers – directors & authorised supervisors – claims re rates of pay and conditions of employment – principles applied to special case & work value changes – special case & work value changes established – shortage of teachers in industry – parity of pay across public and private teaching roles – current research regarding significance of early childhood education – state & federal governmental policies regarding early childhood education – teachers' rates of pay increased – increase in director/authorised supervisor allowance – award to contain non-contact time clause for teachers & directors/authorised supervisors – government funding for early childhood education sector – employers' capacity to pay – awards made. Children and Young Persons (Care and Protection) Act 1998 LEGISLATION CITED: Disability Discrimination Act 1992 Disability Standards for Education 2005 Industrial Relations Act 1996 Employers First v NSW/ACT Independent Education Union [2002] NSWIRComm 113; 115 IR 8 Health Employees Pharmacists (State) Award [2003] NSWIRComm 453; 132 IR 244 Re Nursing Homes &c, Nurses' (State) Award (No 4) [2005] NSWIRComm 88; 138 IR 409 Re Operational Ambulance Officers (State) Award [2001] NSWIRComm 331; (2001) 113 IR 384 Re Public Hospital Nurses (State) Award (No 3) [2002] NSWIRComm 325; 121 IR 28 CASES CITED: Re Teachers (Non-Government Early Childhood Service Centres Other Than Pre Schools) (State) Award [2006] NSWIRComm 4 Re Teachers (Non-Government Pre-Schools) (State) Award and Another Award [2001] NSWIRComm 355; 120 IR 3 Re Crown Employees (Teachers – Department of Education) Award 1970 AR (NSW) 345 State Wage Case 2009 [2009] NSWIRComm 120 Teachers (Non Government Pre Schools) (State) Award 245 IG 702; Bauer J, 24 November 1984 Teachers (Non Government Schools) (State) Award 234 IG 312; Bauer J, 16 December 1981 Teachers (Non-Government Schools) (State) Award (Teachers (Non Government Early Childhood Service Centres Other Than Pre-Schools) (State) Award 245 IG 679; Bauer J, 22 April 1986 HEARING DATES: 21/08/09, 01-04/09/09, 08/10/09 DATE OF JUDGMENT: 24 November 2009 Mr M J Kimber SC with Ms C M Howell of counsel (Applicant) for New South Wales Independent Education Union Mr G M Boyce of counsel (Respondent) LEGAL REPRESENTATIVES: for Australian Federation of Employers and Industries Ms B Kenneally, solicitor (Respondent) Kenneally & Co., Lawyers for Association of Quality Child Care Centres of NSW Inc JUDGMENT: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES FULL BENCH CORAM: BOLAND J, President WALTON J, Vice-President BISHOP C Tuesday 24 November 2009 Matter No IRC 2349 of 2008 TEACHERS (NON GOVERNMENT EARLY CHILDHOOD SERVICE CENTRES OTHER THAN PRESCHOOLS) (STATE) AWARD 2006 Application by New South Wales Independent Education Union for a new award Matter No IRC 2351 of 2008 TEACHERS (NON GOVERNMENT PRESCHOOLS) (STATE) AWARD 2006 Application by New South Wales Independent Education Union for a new award Matter No IRC 1188 of 2009 TEACHERS (NON GOVERNMENT EARLY CHILDHOOD SERVICE CENTRES OTHER THAN PRESCHOOLS) (STATE) AWARD 2006 Application by New South Wales Independent Education Union for variation re State Wage Case 2009 Matter No IRC 1189 of 2009 TEACHERS (NON GOVERNMENT PRESCHOOLS) (STATE) AWARD 2006 Application by New South Wales Independent Education Union for variation re State Wage Case 2009 DECISION OF THE COMMISSION [2009] NSWIRComm 198 paragraph INTRODUCTION 1 RELEVANT PRINCIPLES 8 NATURE OF INDUSTRY 11 BACKGROUND 15 SPECIAL CASE CLAIM 28 IEU's case 28 Factors underpinning claim 29 Teacher Shortage - Evidence 30 IEU's response to employer submissions 48 Employers' Case 49 AFEI 49 AQCCC 53 Consideration 55 Conclusion 76 WORK VALUE CLAIM 80 IEU's case 80 Overview of IEU's evidence 82 Expert evidence 98 Teaching Regime 105 Increased client expectations 111 Increased regulatory and administrative work 123 AFEI's case 131 Evidence of Mr Alchin 133 Regulations 137 Accreditation process 142 NSW Curriculum Framework 143 Additional needs children 144 Role of licensees 146 AQCCC's case 149 Evidence of Ms Skoulogenis 150 2004 Regulation 154 Role of licensee 157 Additional needs 160 Curriculum Framework 162 Quality Improvement and Accreditation System (QIAS) 165 Consideration 167 DIRECTOR'S ALLOWANCES 180 IEU's case 180 General responsibilities 182 Management Committee 185 Accreditation process 191 Additional needs children 193 OHS regulations 194 Privacy Laws 195 Child Protection 196 Overall level of responsibility 198 AFEI 199 AQCCC 200 Consideration 201 NON-CONTACT TIME 203 IEU's claim 203 AFEI 211 AQCCC 213 IEU's response 214 Consideration 218 COST IMPACT AND FUNDING 223 Increased funding 230 New evidence 238 AFEI's response 245 AQCCC's response 247 Consideration 249 AMOUNT OF INCREASE 257 Salaries 257 Director's and authorised supervisors allowances 267 ORDERS 269 INTRODUCTION 1 These matters concern applications by the Independent Education Union ('IEU' or 'the Union') for a new Teachers (Non Government Early Childhood Service Centres other than Pre Schools) (State) Award ('Long Day Care Award') and a new Teachers (Non Government Pre Schools) (State) Award ('Pre Schools Award'). As their names imply, the Awards are to regulate the wages and employment conditions of teachers who are employed to teach young children in long day care centres and preschools in the non-Government sector. The applications cover approximately 1500 teachers employed in non-government long day care centres that are not constitutional corporations and about 3000 teachers employed under the Pre Schools Award. 2 The applications seek the following: (i) the immediate application of the 2.8 per cent wage increase granted in the State Wage Case 2009 ([2009] NSWIRComm 120); (ii) three further wage increases of 5 per cent to be operative respectively from the date of decision, 1 January 2010, and 1 January 2011; (iii) no absorption of State Wage Case (or other similar increases) in 2010 or 2011; (iv) increases based on flat dollar amounts to the Director's Allowances and Authorised Supervisor Allowances; (v) minimum non-contact time of two hours per week for all teachers covered by the awards; and (vi) additional non-contact time of five hours per week for Directors and Authorised Supervisors. 3 The grounds and reasons for the applications were identical: 1. This application seeks to make a new Award having regard to section 11 of the Industrial Relations Act 1996. 2. The union seeks improvements in rates of pay and conditions consistent with the State Wage Case Wage Fixing Principles. 3. The union considers that it is appropriate for rates of pay contained in the award to be subject of review by the Commission. 4. The nominal terms of the award will expire on 31 December 2008 and the no extra claims provision contained in the award will expire on December 31 2008. 5. This application is in the public interest. 6. Good conscience and equity require that the application be granted. 7. Such other grounds and reasons as the Commission may deem fit and proper. 4 The particulars of the applications were as follows: 1. The nominal term of the [existing award] will expire on 31 December 2008. 2. The State Wage Case Principles permit claims for increases in rates of pay and conditions to be processed as a special case. 3. The increases in rates of pay and allowances sought by the union are justified under Principle 10, Special Case, of the Commission's wage fixing principles. The increases in salaries and allowances are necessary: - to maintain the real value of the salaries, rates and allowances of early childhood teachers - ensure that movements in salaries keep pace with wages and salary movements in the community generally - ensure that salaries and allowances payable to teachers under this award are fair and reasonable. 4. The last increases in salaries in this award was granted by consent of the parties in January 2006. Since this time State Wages Cases, teachers employed under this award have not had access to State Wages increases [sic]. 5. The work, skill and responsibility of teachers (including those receiving directors and authorised supervisor's allowances) employed in early childhood services has been undervalued on a gender basis. 6. It is appropriate that the Commission review the structure of the salaries and allowances applying to these teachers. 7. Rates of pay sought by the union are consistent with increases being sought for both government and non government schools and government pre schools but do not exceed these rates. 5 The Long Day Care Award was particularised further: Given the number of small employers in the industry the union believes that it would be difficult to reach agreement on any increases in rates of pay for these teachers. 6 It may be seen, therefore, that the applicant Union relied on three of the Commission's wage fixing principles to press its claims: Special Case principle, Work Value principle and Adjustment of Allowances and Service Increments principle. 7 Except in relation to the claim for a flow on of the State Wage increase, the other claims were opposed by the respondents, they being the Australian Federation of Employers and Industries ('AFEI') and the Association of Quality Child Care Centres of NSW Inc ('AQCCC'). AFEI was represented by Mr G Boyce of counsel and AQCCC by Ms B Kenneally, solicitor. RELEVANT PRINCIPLES 8 Principle 5 of the Commission's 2009 Wage Fixing principles provides: 5. Adjustment of Allowances and Service Increments (a) Existing allowances which constitute a reimbursement of expenses incurred may be adjusted from time to time where appropriate to reflect relevant changes in the level of such expenses. (b) Existing allowances which relate to work or conditions which have not changed, including shift allowances expressed as monetary amounts and service increments, may be increased by 2.8 per cent for the State Wage Case 2009 adjustment. (c) Existing allowances for which an increase is claimed because of changes in the work or conditions will be determined in accordance with the relevant provisions of the Work Value Changes principle of these principles. (d) New allowances to compensate for the reimbursement of expenses incurred may be awarded where appropriate having regard to such expenses. (e) Where changes in the work have occurred or new work and conditions have arisen, the question of a new allowance, if any, will be determined in accordance with the relevant principles of these principles. The relevant principles in this context may be Work Value Changes or First Award and Extension to an Existing Award. (f) New service increments may only be awarded to compensate for changes in the work and/or conditions and will be determined in accordance with the relevant provisions of the Work Value Changes principle of these principles. 9 Principle 6 of the Wage Fixing principles provides: 6. Work Value Changes (a) Changes in work value may arise from changes in the nature of the work, skill and responsibility required or the conditions under which work is performed. Changes in work by themselves may not lead to a change in wage rates. The strict test for an alteration in wage rates is that the change in the nature of the work should constitute such a significant net addition to work requirements as to warrant the creation of a new classification or upgrading to a higher classification. In addition to meeting this test a party making a work value application will need to justify any change to wage relativities that might result not only within the relevant internal award structure but also against external classification to which that structure is related. There must be no likelihood of wage leapfrogging arising out of changes in relative position. These are the only circumstances in which rates may be altered on the ground of work value and the altered rates may be applied only to employees whose work has changed in accordance with this principle. (b) In applying the Work Value Changes principle, the Commission will have regard to the need for any alterations to wage relativities between awards to be based on skill, responsibility and the conditions under which work is performed. (c) Where new or changed work justifying a higher rate is performed only from time to time by persons covered by a particular classification, or where it is performed only by some of the persons covered by the classification, such new or changed work should be compensated by a special allowance which is payable only when the new or changed work is performed by a particular employee and not by increasing the rate for the classification as a whole. (d) The time from which work value changes in an award should be measured is the date of operation of the second structural efficiency adjustment allowable under the State Wage Case 1989, 30 IR 107. (e) Care should be exercised to ensure that changes which were or should have been taken into account in any previous work value adjustments or in a structural efficiency exercise are not included in any work evaluation under this Principle. (f) Where the tests specified in (a) are met, an assessment will have to be made as to how that alteration should be measured in money terms. Such assessment will normally be based on the previous work requirements, the wage previously fixed for the work and the nature and extent of the change in work. (g) The expression ' the conditions under which the work is performed ' relates to the environment in which the work is done. (h) The Commission will guard against contrived classifications and over-classification of jobs. (i) Any changes in the nature of the work, skill and responsibility required or the conditions under which the work is performed, taken into account in assessing an increase under any other principle of these principles, will not be taken into account under this principle. (j) In arbitrating an application made under this Principle, the Commission is required to determine whether or not future State Wage Case general increases will apply to the award. 10 Principle 10 of the Wage Fixing principles provides: 10. Special Case Except for the flow on of test case provisions, any claim for increases in wages and salaries, or changes in conditions in awards, other than those allowed elsewhere in the principles, will be processed as a special case before a Full Bench of the Commission, unless otherwise allocated by the President. This principle does not apply to applications for awards consented to by the parties, which will be dealt with in the terms of the Act, or to enterprise arrangements, which will be dealt with in accordance with the Enterprise Arrangements principle. NATURE OF INDUSTRY 11 The IEU provided an overview of the nature of the two types of centres to which their applications related. 12 Long day care centres are open for 8 or more hours per day and usually operate 48 to 51 weeks of the year and may be commercially operated, non-profit or community based. The centres take in children from the ages of 0 to 5, although there are some centres that only take children from the age of 1 and older. Full-time and part-time care is available and most centres leave a few positions open per day to allow for emergency situations. 13 Pre-school centres are for children aged 3 to 5 and usually have operating hours similar to those of primary schools. Pre-schools often have two sessions or programmes per day and children attend either all or some of the sessions per week. There are a few private preschools, however, the majority are community based and in receipt of state government subsidies. 14 The Union submitted that the vast majority of teachers employed in long day care centres and preschools were paid strictly in accordance with the relevant awards, with few exceptions. An example of teachers who are paid in excess of the award rates is found in the Teachers (KU Children's Services) Agreement 2008-2011. This agreement applies to teachers employed by KU in approximately 130 long day care centres and preschools in New South Wales. BACKGROUND 15 The rates of pay and conditions for long day care teachers and preschool teachers were originally covered by the Teachers (Assistant Masters and Mistresses in Non-Government Schools) (State) Award 1970. This was the first award made to regulate teachers outside the government sector and was based on the then current rates applying to two-year trained teachers pursuant to the Crown Employees (Teachers) Award, allowing for a director to commence on a higher step. The award was made by consent and provided for a phase-in of increased rates over four years so that the rates of pay would achieve parity with the rates of pay applicable to teachers employed in government positions. 16 A new award was made by consent in 1974: Teachers (Non-Government Schools and Pre-Schools) (State) Award 195 IG 786. The award included rates of pay for two, three and four-year trained teachers and directors. The IEU summarised the position of the rates at that time as follows: [P]re-school and school were the same except that in each case the incremental range for preschool teachers finished one or more steps short of the top for school teachers. However, a preschool Director commenced on the step for a fifth year teacher and progressed up the same scale to an additional step equivalent to the top step of the scale for teachers in schools with the same qualification. The award was varied in 1975 by agreement to flow on the increases that teachers in government schools had received. 17 There was some divergence between school and early childhood teacher rates in the early 1980s. In December 1981 a new award was made which applied to schools only: Teachers (Non Government Schools) (State) Award, 234 IG 312, decision of Bauer J, 16 December 1981. 18 In November 1984 a new award was made (Teachers (Non-Government) (State) Award 245 IG 702; Bauer J, 24 November 1984). The rates of pay for preschool teachers under the new award were identical to those then applying in the Teachers (Non-Government Schools) (State) Award. 19 An award for teachers in long day care was made in 1986, again with the same rates of pay as those in the Teachers (Non-Government Schools) (State) Award (Teachers (Non Government Early Childhood Service Centres Other Than Pre-Schools) (State) Award 245 IG 679; Bauer J, 22 April 1986). 20 Between 1990 and 2000 there occurred a growing disparity between the pay for teachers in government schools and teachers in non-government early childhood education. According to the IEU this divergence arose primarily because structural changes in the early childhood sector (in particular the removal of direct Commonwealth funding, known as operational subsidies, to non-profit long day care centres), which made it difficult to reach agreement with early childhood employers on increases, whilst at the same time, in the schools sector there were significant increases by consent (16 per cent from 1996-1999). 21 In 2001, in a major arbitration of pay rates for preschool and long day care teachers, Schmidt J summarised the history up to that time of the rates in Re Teachers (Non-Government Pre-Schools) (State) Award and Another Award [2001] NSWIRComm 355; 120 IR 3: [6] [T]he 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. 22 In the 2001 Pre-school Teachers Award case, the IEU sought an increase of 26 per cent to be phased in over three years, which would have resulted in rates for teachers in early education being parallel with their counterparts in schools, and long day care teachers being awarded 4 per cent higher than teachers in schools. The employers claimed a nil increase in award rates. Schmidt J favoured the IEU's case. Importantly, her Honour's conclusions regarding the disparity between rates of pay for teachers were set out at [395] – [401]. [395] In 1990 the parties agreed that the nexus between these awards and those applying to schools should no longer operate. Of course, that was at a time when rates for teachers employed in long day care were agreed to be 4% higher than those of school teachers and those of preschool teachers the same as those applying to schools. That position was abandoned by the employers in 1999 and now they seek rates, which over time, will be 26% lower than those for teachers employed in schools. I am utterly convinced on the evidence that such a differential can not be awarded. It would not result in fair and reasonable conditions of employment for these teachers. [396] Nor, however, have I been able to conclude on the evidence, that precisely the same rates should here be awarded, as those paid to teachers employed in Catholic and Government schools. I do not exclude the possibility that a case for such rates could be made out, but have taken the view that it would require a closer examination of the basis upon which increases for such teachers were agreed under the awards being relied upon, together with a more detailed investigation of the similarities and differences in the work of the two groups than was here undertaken. That is not to say that I accept the views expressed by employer witnesses as to the nature of the differences in the work of teachers employed in early childhood and those employed in schools. I am convinced that no proper basis for such views was demonstrated. Nevertheless, I am not convinced that on the evidence here led, the rates claimed can be awarded. [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. 23 Schmidt J awarded preschool and long day care teachers an increase of 20 per cent over three years. 24 The IEU also sought higher rates for directors of early childhood centres and this claim was granted by her Honour: [419] On the evidence, I am satisfied that the work of directors has been affected by the changes identified, to an even greater degree than the teachers covered by the award. The evidence called by EF supported this, giving rise no doubt to its alternative submission. There was no evidence that any teacher who was appointed to the position of director, was not also appointed as the authorised supervisor. Like the position of the teacher, there was evidence of significant change in the work and responsibilities of directors, sufficient to warrant an increase in their remuneration, in addition to the increases flowing to teachers. I have therefore also concluded that it is appropriate to adjust the award directors' allowances by an overall 30%. Those increases will also be phased in, in six adjustments of 5% over the life of the award, six months' apart, commencing on the first pay period commencing on or after 1 January. 25 There were two conditions claims before her Honour in 2001: first, the Union's claim for a public holiday and, secondly, a claim for overtime for long day care workers. Schmidt J was satisfied that both claims should be granted. The award rates were increased in accordance with the Commission's orders in 2001, with the final increment being granted in July 2004. 26 Teachers employed under the terms of the current Long Day Care and Pre-School Awards received annual increases to pay rates during the three-year term of their current awards. The parties' most recent agreement on rates and conditions was before Wright J, President in 2006 in Re Teachers (Non-Government Early Childhood Service Centres Other Than Pre Schools) (State) Award [2006] NSWIRComm 4. The parties agreed on annual pay increases of 4.5 per cent per annum over three years, totalling 13.5 per cent. Early childhood teachers employed pursuant to the Pre-School and Long Day Care Awards received their most recent increase to rates of pay in January 2008. 27 A significant aspect of the current claim for increases in rates of pay relates to the new disparity that has emerged since 2001 between teachers in the non-government and government sectors. In this respect, the IEU presented a table showing the maximum rates awarded to three and four-year trained teachers in the government and non-government sectors spanning the years 1990 to and projected to 2011. The Union submitted that 'even if the claims sought were to be granted in full, including the 2.8 per cent that will leave still the early childhood teachers approximately six per cent behind the teachers as of 1 January 2011'. The table is set out in Annexure A. SPECIAL CASE CLAIM IEU's case 28 Mr M Kimber of senior counsel with Ms C Howell of counsel for the applicant, referred to the decision of Re Nursing Homes &c, Nurses' (State) Award (No 4) [2005] NSWIRComm 88; 138 IR 409 in summarising the basis of the claims: [18] The special case and work value principles have been recently considered in a number of decisions of the Commission, including, in particular Re Social and Community Services Employees (State) Award (2001) 113 IR 119 at 128 - 130 ; Re Operational Ambulance Officers (State) Award (2001) 113 IR 384 at 418 - 420 ; Re Public Hospital Nurses (State) Award (2002) 115 IR 183 at 186 - 190 ; Re Health Employees Pharmacists (State) Award and other Awards (2003) 132 IR 244 at [23] - [27]; Re Public Hospital Nurses (State) Award (No 4) (2003) 131 IR 17 at [16] - [22]; and Re Crown Employees (Teachers in Schools and TAFE and Related Employees) Salaries and Conditions Award (2004) 133 IR 254 at [30] - [32] and [86] - [96]. It is unnecessary, in light of those recent decisions, to reconsider the principles except to emphasise that: 1 In order to satisfy the requirement for a special case, the applicant must demonstrate that the case has "special attributes" or is "out of the ordinary" so as to take it outside the restrictions which may otherwise apply under the wage fixing principles: Re Operational Ambulance Officers at [166]. 2 An applicant to a special case needs to establish an "adequate evidentiary foundation" to establish the special factors that warrant an award variation in order to set fair and reasonable conditions of employment: Re Operational Ambulance Officers at [168]. 3 A tribunal charged with determining whether the tests under the work value principle have been met must carefully sift through the material that has been placed before it and separate out those changes which have occurred to the nature of the work, skill and responsibility of employees or to the environment in which the employees work and which have not previously been the subject of compensation. An objective assessment then has to be made as to whether the changes that have occurred amount to such a significant net addition to work requirements as to warrant the creation of a new classification or upgrading to a higher classification. The change is to be measured from the last time wages were increased on the basis of work value or from the date of operation of the second structural efficiency adjustment allowable under the State Wage Case 1989 , whichever is the later. An assessment is then to be made as to how that change should be measured in money terms. Such assessment will normally be based on the previous work requirements, the wage previously fixed for the work and the nature and extent of the change in work: Re Public Hospital Nurses' (State) Award (No 4) (2003) 131 IR 17 at [20]. Factors underpinning claim 29 The IEU identified the following factors as underpinning its claims under the special case principle: (i) There have been substantial developments both internationally and nationally in understanding of the importance of early childhood education in recent years, particularly to address issues of social and educational disadvantage. (ii) This understanding has led to a range of State and Commonwealth Government initiatives designed to improve the quality of early childhood education across a range of services including preschools and long day centres. (iii) The importance of early childhood education is such that, amongst other things, the NSW Government has prescribed minimum ratios of teachers to children in preschools and long day care centres covered by the awards. (iv) There is a very serious shortage of teachers prepared to work in the early childhood sector. This shortage of teachers is already so severe that the mandatory minimum teacher – child ratios are unable to be met in many centres in New South Wales because teachers simply cannot be found to fill the positions. (v) The shortage is set to worsen as the demand for teachers in early childhood increases due to Federal Government initiatives including reductions in the mandated ratios of teachers to children. (vi) Teaching in early childhood sector requires the same qualifications and skills as does school teaching, although early childhood teachers are generally required to work with a much higher degree of autonomy and responsibility than their school counterparts. (vii) In 1990 teachers in the early childhood sector were paid at similar rates to school teachers. There has been a gradual divergence since then, only temporarily alleviated by Schmidt J's Special Case decision of 2001. The relativities have deteriorated to the extent that early childhood teachers under the two awards are currently paid 18 – 20% less than their schoolteacher counterparts. (viii) This enormous discrepancy in payment of teachers for essentially the same work is not only extremely unfair, but is one of the most significant factors in the shortage of teachers prepared to work in early childhood education. (ix) The work of early childhood teachers has continued to become more complex and demanding over recent years, in part as a result of the Government initiatives referred to above. There has been a marked increase in work value since January 2006. This increased work value magnifies the unfairness of the current disparity in wage rates and further exacerbates the shortage of teachers prepared to work in early childhood education. Teacher Shortage - Evidence 30 A fundamental aspect of the IEU's special case claim was the shortage of teachers in the early education industry. The IEU adduced a large amount of evidence regarding the present shortage of preschool teachers. A connection was sought to be made between the teacher shortage in the industry and the disparity of pay rates described earlier. The IEU contended that the 'enormous discrepancy in payment of teachers for essentially the same work is not only extremely unfair, but is one of the most significant factors in the shortage of teachers prepared to work in early childhood education'. 31 All preschools and child care centres are regulated by the Children and Young Persons (Care and Protection) Act 1998 and the Children's Services Regulation 2004 ('the 2004 Regulation'). In her evidence, Ms Verena Heron, Union officer for the IEU, summarised the relevant regulations regarding teacher requirements in the early education industry: Shortage of Early Childhood Teachers & Parity Clause 52 of the Regulation provides that each licensed service must employ a number of early childhood trained teachers, depending on the number of children enrolled. A centre that is licensed for 30 or more children must employ at least one teacher and for example a centre licensed for 40 children must employ two teachers. Despite the requirement of the Regulation it is not always possible for centres to engage qualified teachers. The Department of Community Services has a policy that permits exemptions from the Regulation in certain circumstances to ensure that centres remain open, even if they are unable to recruit teachers…. The period of the exemption is limited to twelve months. … It is my estimate that currently there would be at least 200 exemptions from the requirement to employ a trained teacher. For example I attended a meeting in late June in Lismore and was advised by early childhood members that they thought there were at least 30-40 exemptions from the requirement to employ a trained teacher in the North Coast DoCS region. 32 Ms Heron recounted her experiences with shortages of teachers in the industry: The existence of the Policy and the fact that such exemptions have been granted reflects the shortage of suitably qualified graduates seeking work in early childhood services. I am also aware from my discussions with industry groups and with directors of centres that centres frequently find it extremely difficult to recruit casual teachers to cover temporary vacancies or absences. I am familiar with a study conducted in 2002, entitled Early Childhood Teachers and Qualified Staff, for the NSW Department of Community Services. This study… found there were significant shortages of early childhood teachers and discusses the reason for the shortage…. The main reasons cited by respondents for early childhood teachers preferring to teach in schools was the better conditions and higher rates of pay enjoyed by teachers in schools and what was perceived as less responsibility of teachers in schools…. Similar comments were made by respondents in 2004 in the National Children's Services Workforce Study at p143 in relation to retention of staff…. I regularly visit universities offering early childhood teacher training to speak to final year students. These students study the teaching of children aged 0 – 8 and will qualify to teach both early childhood services and years K-2 in schools. During the group discussion and often individually I am asked many questions about salaries and conditions in schools and in early childhood centres. The feedback I received from students is that most are interested in working in schools than rather than early childhood services. It is my experience that students see the perceived better salaries and conditions in schools as a key factor in their decision. They feel that working in schools they receive more recognition and professional support. Lecturers have made similar comments to me about the attitudes of their students. There has been a significant increase in the number of early childhood services and early childhood teachers in the last five years in NSW. [T]he 2006 Australian Government Census of Childcare Services figures of 3,150 teachers in 1,745 long day care centres… amount to an increase since 2002 of 22% in the number of services and 48% in the number of teachers. Throughout this period the numbers of teachers in preschools has remained relatively stable. The Australian Government anticipates that there will be a shortage of early childhood education staff, particularly teachers. It has initiated a program, the "National Early Years Workplace Strategy", to support the training of early childhood teachers…. The strategy includes the creation of additional university places in early childhood education and paying half the HECS fees of approximately 10,000 early childhood teachers who work in defined areas. Part of the reason for the anticipated shortage is the government commitment that all children be provided with early childhood education in the years before formal schooling…. Public consultations in August and September 2008 conducted on behalf of DEEWR found that a failure to address workforce issues was a key restraint to the achievement of reform in early childhood education: the interrelated issues of low wages, high turnover and difficulty attracting and retaining staff were seen as being of paramount importance…. 33 Ms Frances Press, Senior Lecturer at School of Teacher Education, Charles Sturt University, provided two expert witness statements in support of the IEU's applications. Ms Press' statements annexed her curriculum vitae outlining her extensive background in teacher education and policy spanning some 22 years. Ms Press was not required for cross-examination in the proceedings. The main points to be extracted from the evidence of Ms Press in relation to a shortage of early childhood teachers, and her conclusions regarding the reasons for such shortages, which included the issue of disparity in pay rates between the two classes of teachers, may be summarised in the following extracts from her statement: Staff turnover seriously undermines the quality of education and care that can be offered to children. Yet Australian early childhood services are experiencing serious shortages of early childhood teachers and some services at least appear to be experiencing an unacceptably high rate of staff turnover. The inadequate recognition of the value of work undertaken by early childhood staff, including teachers, has been the raised by a number of key reports: The Australian Background Report for the OECD commented on the low wages, wage discrepancies and expectations of unpaid overtime evident in the early childhood sector. The report of the Commonwealth Childcare Advisory Committee Child Care Beyond 2001 highlighted the "contrast between the high level of commitment many early childhood professionals bring to their complex role compared with the wide undervaluing and misunderstanding of their contribution" (p 43). The Centre for Community Child Health's Research to Inform the Development of a Capacity Building Program (May 2003) drew attention to the major staffing problems facing many early childhood services. It stated that "pay rates for early childhood staff are relatively poor, making the sector increasingly unattractive to new staff. There are serious shortages of staff with appropriate qualifications and experience." (p 101). Research commissioned by the Department of Community Services to investigate the extent and reasons for the apparent shortage of early childhood qualified staff identified that many staff are dissatisfied with the mismatch between responsibilities and wages, with high workload expectations and multiple demands, cited as reasons for leaving the sector. (Warrilow, Fisher, Cummings, Sumsion and a'Beckett, 2002). Concerns about staff shortages resulted in the Federal Government convening a National Child Care Workforce Think Tank in April 2003. The report states "The workforce issues currently facing the child care sector are serious and complex, and there is a role for all levels of government, and the sector itself, in dealing with them. Of immediate concern is the difficulty that services experience in recruiting and retaining qualified child care workers." (p.3). Poor wages and conditions contribute to staff dissatisfaction and turnover and staff turnover has a detrimental impact upon quality. Working conditions (including wages and management practices) and qualifications have been identified as important structural elements which make it possible for good quality childcare practice to occur (Helburn and Howes 1996, Wangmann 1995). I have taught early childhood teachers in three universities. In the main, there are two types of early childhood teaching qualifications on offer. One enables students to earn a four year qualification (Bachelor of Education with an early childhood specialist focus) that enables them to work in Department of Education Schools, as well as non-departmental early childhood programmes. Because of the dual nature of their qualification these courses are scrutinised by the NSW Institute of Teachers and the Department of Community Services. It is a rigorous four year teaching qualification. The other has a specialist focus on the age groups birth to five. This is currently three year qualification (a Bachelor of Early Childhood Teaching) in the process of being extended to a four year qualification. Both courses have rigorous academic and practicum requirements. In my role as a teacher of early childhood teachers, I know that too many talented and capable early childhood education graduates elect to work within the school sector when they are badly needed in other early childhood programmes. In addition, many early childhood teachers leave positions in prior to school ECEC [early childhood education and care] programmes to take up teaching positions within schools. Although committed to the care and education of young children, early childhood teachers who want to work in non-school early childhood programmes are dealt a double blow. Firstly, there is a stark mismatch between the wages and conditions they receive and the greater level of responsibility, longer working hours, and work complexity they assume. Secondly, they find that the school sector offers better wages and conditions with fewer overall responsibilities. This is quite simply unjust. Unless teachers in early childhood programmes achieve wages parity the early childhood sector will continue to be beset with teacher shortages. These shortages seriously erode the quality of children's care and education and undermine polices designed to improve children's educational outcomes. 34 The IEU also relied on expert evidence from Ms Sandra Cheeseman, Lecturer at the Institute of Early Childhood, Macquarie University. Ms Cheeseman gave evidence in relation to the teacher shortage and her understanding of the reasons for such shortages. Ms Cheeseman's evidence, together with that of Ms Press, was critical to the applicant's case and so we have extracted those aspects of particular relevance. Ms Cheeseman dealt firstly with the introduction of the National Early Years Learning Framework and its importance: Teachers in Department of Education and Training (DET) schools in either preschools or in the first years of school are paid more than those working in non DET preschools or childcare settings. This disparity occurs despite early childhood teachers in non DET settings teaching children of the same age and providing the same educational programs. This anomaly will become more obvious with the Introduction of the National Early Years Learning Framework (EYLF). This important document will see all early childhood teachers, no matter the setting, having responsibilities for the delivery of educational programs based on agreed national outcomes. This will carry with it responsibilities for teachers in relation to the delivery of curriculum and the assessment and reporting to families of children's progress against the stated outcomes. The educational programs and therefore the expectations on teachers will be consistent across all early childhood settings in Australia both in the school sector and the prior to school sector. The introduction of the EYLF will bring increased responsibilities and expectations for staff working in prior to school settings. Early childhood teachers will be expected to carry the major responsibility for implementation of the EYLF and ensuring that all Australian children experience high quality teaching and learning in the early childhood years and in particular in the year prior to full-time schooling. The Rudd government's announcement of a Universal preschool year for all four year old children which is to be delivered by four year qualified early childhood teachers is a recognition of the important role that University qualified teachers will play in the introduction of the EYLF and the success of this policy initiative. These changes will see early childhood teachers in prior to school settings required to demonstrate accountability under the EYLF in relation to the stated outcomes for all children and commitment to assessment and reporting against these outcomes. For the first time in history, Australia will have stated outcomes and expectations for all children in prior to school settings for which early childhood teachers will be responsible. This will place teachers in prior to school settings in the same position as teachers in primary schools in relation to their responsibilities for curriculum development, assessment and reporting and as such it will be essential that their pay and working conditions reflect this parity. 35 Ms Cheeseman addressed the wage disparity issue and cited her experiences in that respect: The wage disparity that currently exists between teachers in schools and those in prior to school settings has a significant impact on graduating teachers' career choices. In my role as a final year lecturer in leadership and management, informal surveys of graduating teachers indicate a strong preference for working in school settings. Graduands cite the significantly higher pay as the most important reason for choosing this career direction. In addition to this graduands perceive that the responsibilities of teachers in non-DET settings are greater for graduating teachers with less formal supports than those provided by the structure of a school. They also cite their concerns relating to greater job insecurity in the current largely commercialised environment of much of the childcare sector. As graduating teachers demonstrate a preference for DET school settings for their employment and as more opportunities for employment become available in the school sector due to the increasing retirement rate of teachers, it is progressively more difficult for non-DET settings to attract and retain high quality teachers. This situation is weakening the capacity of the prior to school sector to adequately staff and thereby offer the quality of teaching that is required under regulation in NSW. This situation is currently at crisis point with many employers reporting long term vacancies in teacher positions forcing them to employ casual staff or less qualified staff under an 'approval' from the NSW Department of Community Services. This situation is a cause for great concern given the research evidence that indicates the importance of consistent and highly qualified staff in determining positive social, emotional and educational outcomes for young children. It is unreasonable that children in prior to school settings should experience greater discontinuity in the staffing of their educational settings than children engaged in school settings do. It is of significant concern that this should be the situation for our youngest children known to benefit most from consistent and competent teachers (Schweinhart, 2005). 36 On attraction and retention of teachers, Ms Cheeseman described the difficulties the industry faced: In my position as Vice President of Early Childhood Australia (NSW) I am increasingly aware of the difficulties faced by employers in the prior to school sector in attracting and retaining quality teachers. This situation is exacerbated by the commercial nature of the childcare sector which operates in a highly competitive market environment. The level of competition in the prior to school sector and the pressure to keep fees low in order to remain competitive makes it very difficult for employers to offer acceptable pay and conditions to attract teachers to employment in prior to school settings in the same way that the school sector is able to. Teachers who may begin their employment in the prior to school sector are enticed away to school settings due to the significantly higher level of salary available to them. Teachers from the school sector rarely make the transfer to the prior to school sector due to the lower levels of pay they would endure in the prior to school sector. The situation of difficulty in recruiting teachers in the prior to school sector has intensified recently due to commitments by the Australian Government to increase the number of early childhood teacher places at university. This initiative is aimed at addressing the projected shortage of early childhood teachers under the government's plans for universal preschool provision for all children in their year before school. While university places have been increased, the entrance ranking across each of the universities offering early childhood programs has dropped significantly to attract students to fill the available places. This strategy of offering incentives to enrol in early childhood teacher education programs has been partially successful in attracting undergraduate students, however many students enter university through this soft entry point only to transfer to primary and secondary education course when they come to understand the significant difference in pay that exists between school based teaching employment and that in the prior to school early childhood sector. In addition this strategy is diminishing the entry requirements for early childhood teachers leading to a potentially weakened and less talented workforce. In short early childhood teacher education programs are not attracting the best and brightest education students. This will have long term effects on the early childhood sector and its ability to provide young children with the highest quality teaching that research suggests is necessary for their optimal growth and development in these formative early years. The responsibilities of teachers in prior to school settings are often greater than those in school based settings where they are in fact paid more. Graduating teachers in the prior to school sector will often hold positions of Director, Authorised Supervisor or Temporary Authorised Supervisor (positions of significant legal responsibility under the NSW Children's Services Regulation, 2004). The responsibilities of these positions include ensuring adequate supervision of children by appropriately qualified staff at all times, ensuring compliance with and monitoring standards in relation to health and safety of the environment and responsibilities for the supervision and support of personnel. Within a school setting these responsibilities are usually undertaken by senior executive staff or the school principal who are compensated with significantly higher salaries than early childhood teachers who are also directors or managers. Teachers in prior to school settings will most often be the most highly qualified staff members among a team of variously qualified others. This is often the situation for newly graduated teachers who find themselves in positions of significant authority and responsibility. Often responsible for the supervision and guidance of less qualified staff, early childhood teachers experience increased pressure to provide professional leadership as well as take the major responsibility for a range of curriculum and pedagogical tasks. New graduate teachers in school settings generally have access to greater mentoring and support from more qualified and experienced teachers, reducing the pressure and expectations on them. It is not surprising that the increased pressure and responsibility experienced by prior to school teachers when matched with the lower level of pay that they receive motivates them to look for work in the more supportive and more adequately remunerated roles of teachers in schools. Conditions such as access to paid parental leave, better long service leave, access to release time, professional development are also incentives for new graduate teachers to seek position in school settings. … Teachers in prior to school settings experience lower professional standing and status to teachers in other arenas of education. Despite the evidence that their work is equal or superior in complexity and rigor to their school teacher counterparts, they experience significantly lower salaries and more challenging working conditions. The difficulties in attracting and retaining high quality teachers in prior to school settings has reached a crisis point at a time of increased social and political interest in the importance of the early years. 37 Ms Cheeseman referred to Australia's poor international standing in relation to provision of services for early childhood education and the importance of improving that standing: Recent international reports including the OECD Starting Strong II report (2006) and the UNICEF Innocenti report card No 8 (2008) are evidence of Australia's poor international standing in relation to provision of services for early childhood education. Internationally, the provision of early childhood education is recognised as an important strategy in closing the gap between the achievement levels of children living in advantaged circumstances and those children who experience disadvantage. High quality early childhood education is widely recognised as an important strategy in overcoming the effects of poverty and disadvantage, particularly for indigenous communities. Both of these reports identify the important role that university qualified teachers play in providing the high quality educational experiences that children living in disadvantaged circumstances need in order to improve their life chances. Given the current poor standing of Australia in the international early childhood community, it is essential that Australia address the issues that contribute to Australia's poor performance on these international benchmarks. Of significance for NSW is the poor status and standing of early childhood teachers in prior to school settings. These teachers are internationally recognised as a key component of the provision of high quality early childhood education programs that are necessary to achieve the outcomes that Australia strives to realise for all its citizens. It is essential at this time to improve the working conditions, status and standing of early childhood teachers in prior to school settings and attract the highest quality candidates into early childhood teaching careers, if Australia is to realise its goals for redressing the effects of disadvantage for our children. Given the poorer status assigned to early childhood teachers in prior to school settings through lower salaries and poorer working conditions and given the ever increasing demands and responsibilities encountered by teachers in prior to school settings, it is unsurprising that many teachers leave the field to take up more highly regarded and better paid positions as teachers in schools, or leave the teaching profession completely. Given the rising importance of children's early childhood experiences prior to formal schooling, it is timely that due recognition be given to early childhood teachers who carry the weight of responsibility for ensuring the effectiveness of early childhood programs and the consequent outcomes for the future of Australia's children. 38 Ms Cheeseman was cross-examined on her evidence regarding the connection between teacher conditions and pay and the teacher shortage: Q. At paragraph 15 you say there, "There is a range of factors... sector is able to." You agree one cannot consider comparisons between pay and conditions in the childcare sector without proper regard to the issues facing childcare? A. Proper regard. Q. You have given evidence, paragraph 12, you talk about, "National early years..." You have said that has not come in yet and it is not clear when it will come in. What can you say in relation to the manner in which the framework would be used as a guide? A. I think it will be quite different because the New South Wales framework is not mandated. It is a voluntary resource for staff who wish to use it. The national early years framework would be mandated through the national quality framework and through the standards rating. Q. Your evidence is that will not occur at the moment. As far as you are concerned, it is that the national early childhood framework will be as much a guide as the current framework? A. I think the government has made clear commitments to connecting it with the national quality and rating system. Q. When is that going to be? A. I don't know. Q. In terms of your evidence at the moment, in this application at the moment, it is only a guide? A. As of today it is a guide, I guess, yes. Q. Throughout your statement you have cited a number of systems related but also sometimes unrelated to factors - paragraph 19, at the bottom of the paragraph you talk about "conditions such as access...leave." You talk about monitors and less formal supports. Job security and the commercial nature of the childcare sector is not something that exists in the Department of Education training skills, is it? A. Not to the same extent. Q. And within your statement you bring no evidence, do you, improving any one particular matter in all those matters that you have described which will improve attraction to teaching. You bring no evidence there is a direct correlation? A. I am not aware of any evidence that exists. 39 The IEU called several witnesses to corroborate the evidence given by Ms Heron and its expert witnesses. Each witness recounted their experience of teacher shortages in addition to explaining their observations and understanding as to why there is a shortage in the early childhood education sector. 40 Ms Lisa James has held the position of Early Childhood Organiser at the IEU since 2007. Ms James holds a Bachelor of Teaching (Early Childhood) and a Master of Early Childhood and prior to 2007 worked as an early childhood teacher. Ms James' responsibilities with the Union required her to visit early childhood centres and answer queries members or prospective members of the IEU had about their employment entitlements and conditions. Ms James has visited 400 centres in her current capacity. In addition, Ms James lectured early childhood education students at Macquarie University about current issues and the industrial relations landscape. In her capacity as lecturer, she observed the following: During the course of my lectures at UWS in 2007 and 2008 I asked students about their preferred sector of future employment. In 2008 at UWS only five out of over 30 students indicated they intended to work in the early childhood sector with 25 students indicating they intended to work in schools. The main reasons cited for the preference for schools were higher wages and better working conditions in school settings. At Macquarie University, in 2009 out of 60 students only about nine or ten students indicated a desired to work in early childhood settings in the non-government sector. 41 During her visits to centres, Ms James took notes of her meetings with teachers. She explained that the practice was helpful in her attempt to answer questions from members, should she need to conduct further research. Ms James stated that she typed any such notes upon her return to the office, a set of which was provided in the IEU's evidence. In her written statement, Ms James provided excerpts from her detailed notes on issues relevant to the IEU's claim. 42 The following extracts from Ms James' statement were said to be representative of the discussions she undertook whilst visiting centres: I … spoke to Rachel, who has been working as an early childhood teacher for a few years. Rachel said "There is such disparity between prior-to-school and school teachers. Only five out of 150 in my uni class said they would work in early childhood. They loved their pracs, it's just for financial reasons and the holidays. We should be earning much more than teachers in schools because we do not have school holidays". [Amanda, director]: "We feel undervalued in job status and wages. You're viewed as if you're "upgrading" when you work in a school rather than early childhood. We need pay rises for early childhood teachers. Paid maternity leave would help us to retain our staff and you should be able to have a guarantee of working part-time when you return to work." When I asked Amanda, if there were any changes in the work of an early childhood teacher, she named school readiness. "There's a lot of work and pressure involved but there is no paperwork for the transition. You have to write your own program and reports. For children with special needs it may take four meetings with the child's future school. We have information nights and newsletters about school readiness for parents. Five years ago we had one child with special needs, now we have seven plus the ones that are not diagnosed, and as I said before no funding or extra staff". Monique… told me the responsibility of the job has increased substantially and she enjoys working as a teacher less than she used to. Monique has two children in the room with special needs and the untrained support worker is not able to care for both children at once. Monique says she cannot spread herself far enough and there needs to be more support for teachers who have children with special needs in their class. School readiness is an increasing expectation and teachers now have to combine child development and the emergent curriculum. Monique says that a real issue that needs to be addressed in long day care is burnout. There is a big difference between working in a preschool where she had an hour before and after the children arrived to set up the room – she now has to do this whilst the children are present. Monique also says that working 48 weeks a year with the children is very draining and the children in long day care are more needy due to the long hours they are in care – they need more emotional support, affection, entertainment etc. I spoke to Allyson and Peta. Allyson complained about the lack of paid maternity leave because her friends from uni were entitled to it because they all work in the school system whilst she "got nothing even though we have the same qualifications". Peta says she feels compelled to justify her decision to work in early childhood services. "I tell people I have a bachelor degree and I could have chosen to teach in a school but I wanted to work in early childhood". Allyson has applied to become a QIAS validator in order to feel more professional because early childhood teachers are not valued and the wages are low. Peta says that early childhood teachers she knows have gone to work in schools because of the holidays and adds that in her view the salary should be closer to that applying to teachers in schools because the content of her teacher training equips her to teach in schools. Both Peta and Allyson said the only reason they were working in early childhood was that they were able to get a permanent full-time job straight away after graduating, as opposed to having to teach casually in primary school until a full-time job became available. However, Peta is still on the Department of Education and Training eligibility list waiting for a permanent position and Allyson wants to become a QIAS validator. … 43 Ms Gabrielle Connell is the director and teacher at Albury Preschool. Ms Connell stated the following in her written evidence regarding teacher shortage: As I collect data from Services in my area I find they are having more and more difficulty recruiting Early Childhood trained teachers. One Service recently spent $5000 on advertising and still couldn't find a teacher. Most graduates choose to work in schools where they have better pay and conditions. I employ a new graduate one day a week and could offer her more days but she works 3 days in a Primary School where she is paid more so she will not leave there to work more in the preschool even though she would like to. The majority of the university students we have here in their last year of study as students choose to work in Primary schools for this reason. I am also finding that more Early Childhood Services are being given exemptions from employing an Early Childhood trained teacher because they cannot recruit one. This is lowering the standards in Early Childhood Centres. 44 Ms Lynnette Connors, teacher and director at Hamilton Child Care Centre, gave the following evidence in relation to her experiences with a shortage of early childhood teachers: Since 2005 there has been a reduction in the number of early childhood education students studying at the University of Newcastle who are choosing fourth year intern placements in child care centres and preschools. They quote the inequality of pay between schools and child care, longer working hours, shiftwork, and less holidays. For example, there are currently 60 students in 2009 completing internships from the University of Newcastle. Of those, 8 have chosen to do their internship in early childhood centres. 45 Ms Marie Jacobsen has been the director and teacher at Coolah Preschool Kindergarten Inc since 1997. Ms Jacobsen gave the following evidence regarding teacher shortage: Of my 'class' of around 50 early childhood students from the Bachelor of Teaching (Early Childhood) 1994 about half of these went into schools. Of the 10 in my 'class' who completed the Bachelor of Education (Early Childhood) 1995, there were seven general primary students and three early childhood students. We all did the same course, however on our degrees it stated if general primary or early childhood. Of the three early childhood students, I was the only one who went into early childhood. Teachers have become disillusioned and have left the early childhood field in droves: the pay is poor and does not recognize qualifications or responsibility. Why wouldn't you move to the primary school sector, with better pay and conditions, less responsibility, strict 'work hours' and a syllabus in every subject to follow? 46 Ms Ariane Simon has been the director of St Stephen's Preschool at Normanhurst since 2003. Ms Simon stated the following: In the past 5 years we have recruited for an Early Childhood teacher every year. Even the incentive of School holidays and hours is not enough to lure large numbers of applicants. At most 2 or 3 suitably qualified, but not necessarily the correct fit for our service have applied. The last 2 times after an extensive recruitment campaign that includes, local and Sydney papers, online advertising, church bulletins etc, we have relied upon word of mouth and have enticed a retired teacher and a teacher that had left us for career advancement as a Director back to our service. In the last 5 years NOT ONE new graduate has applied for a teaching position in our service, but rather mature aged women returning to the workforce. 47 Ms Fiona Fanning worked in the childhood industry for some 20 years and left the industry in 2007 'as a result of the increasing workload and complexities of [her] role as an early childhood teacher'. Ms Fanning, currently employed as a TAFE teacher, described how much better off she was working at TAFE: As an early childhood teacher I was earning, if I worked full time around $54,000. As a four year trained teacher on Step 9 I was earning as much as I could as an early childhood teacher. I could go no further. It was another reason why I decided to leave early childhood teaching. I know that teachers in schools earn about $20,000 more then early childhood teachers which I believe is unfair. This is one reason why the early childhood industry will not be able to hold onto good teachers with a wealth of experience because they're not paid as much as their counterparts. I had the opportunity to go to another job that would pay me more and I don't have to work as hard. … I'm finding with my workplace supervisions currently (with my students) that a lot of room leaders in childcare centres are getting younger and younger. You don't have mature staff or they are very few and far between as the workload and financial issues cause people to leave either to the school or TAFE sectors or they exit to other industries where they're going to be better remunerated. I am currently earning $66,000 for working 30 hours per week as a full time employee, whereas if I was working in early childhood I would be doing 38 hours a week plus, for less money. I wouldn't say I'd do everything in 30 hours but the flexibility is there for me where I can take some of it home or do some of it at home on my computer. For me it's more manageable and it's definitely less stressful. I found I'm earning more and working fewer hours and therefore will not go back to early childhood education. … Once I made the decision I was not going to stay in the early childhood services any longer I started looking at other possibilities… I chose TAFE because I could actually share a lot of my experience with those coming into this industry and liked the fact that TAFE allowed you the flexibility as well of your working hours because you can do it part time or full time. The money was a lot better as well so that was another incentive. Once I made that decision I basically just applied for a job and I got a full time job and TAFE also sent me to University to do a graduate diploma in Vocational Education and Adult Learning. TAFE actually gave me release time which meant I was actually paid to attend university. I had a study day that I was also paid for, so there was a lot of support there for me to further my education, and it was a one year course so I did it while I was still working full time. I had study release time to do this. This option would never have been offered by KU. While I teach full time, I'm certainly not expected to do observations on all my students like I would have in an early childhood setting. I don't have to display a program for everything I've done. I would do a lesson plan for what I plan to deliver in that two hour class but it's certainly not face to face eight hours a day or 9 to 3. In a week I teach 19 hours and have 11 hours of admin, time or programming. I'm a cluster manager at the moment so I've got 20 students I'm responsible for, tracking their progress but apart from that it's just keeping my roll books up to date for the students from other classes that I teach. Some classes might only have 13 students others much have 20 and a lot of the classes will be about 20, and because they're adults it's a lot more manageable than teaching young children. The workload is significantly less than being responsible for a group of children under 5 years of age, for 7 to 8 hours per day. … IEU's response to employer submissions 48 In reply to the employers' general response to the special case claim, which we shall address shortly, Ms Howell submitted on behalf of the IEU: We say the submissions on teacher shortage don't get to grips with the fundamental case advanced which is not simply there is a shortage therefore that puts a premium on the wages. The case is there are a combination of factors including the severe shortage, the relative disadvantage of teachers and the relativity compared to school teachers and the under-valuation of the work. And take all these matters together and one can see it is quite different to simply saying we want a premium for attraction and retention. That is not the case. The case is analogous to the Public Hospital Nurses Case No. 3 which we refer to in our submissions… The Commission said shortage per se is not something that justifies a pay increase but taking all factors together, it may be appropriate to apply a pay increase in a situation or shortage to alleviate the shortage. In many ways the case on that issue is stronger in this, in the present circumstance because the teachers here, in the early childhood centre, can walk into a school, preschool or a primary school and pick up 20 to 26 per cent extra money. And it is very easy to see why in that circumstance there is a shortage because it is the combination of the awards, the school awards providing significantly higher remuneration for the same work and the changes to the nature of the work which make it even harder to work in an early childhood facility. Indeed to the extent that the evidence compared school teaching and early childhood teaching, the evidence was the teachers in the early childhood centre face higher responsibilities and less support because they don't have the infrastructure of the school system behind them and they are very much on their own in supervising other less qualified staff. Insofar as reliance is placed on the fact that the 2001 decision of Schmidt J dealt with shortage, well a lot of water has passed under the bridge since then and the divergence in wages since 2001 really renders that decision of no significance in terms of the Commission's present consideration in addressing the shortage. What the respondent hasn't got to grips with is the amount of unchallenged evidence, particularly of Ms Press, squarely identifying that beyond the payment of teachers in this sector is a major contributory effect to the shortage [sic]. We don't say it is the only factor, we didn't in our evidence and we didn't in our submissions but it is an extremely significant factor, and that is recognised not just by Ms Press but by studies referred to by Mr Kimber in his submissions in chief. Clearly the poor remuneration in this sector leads to high turnover, instability and shortage. It is noteworthy that neither of the respondents even mentioned Ms Press' name yet her evidence is a cornerstone of the applicant's case. So, it is the combination of factors that lead us to say a significant factor in the shortage is the poor remuneration of these teachers and it is not simply a matter of, well, we will put a premium on the remuneration of these workers to address the shortage. That is the scenario that the Commission has rejected. That, we will say, will give these workers an additional premium above what the work is generally worth because we have a shortage. That is not the case here. No one is saying these workers should have a premium on top of their true value. What is the case here is the under payment has to be addressed in order to address the shortage. A part of that, certainly not the entire proposition, but a part of it is considering the remuneration of preschool workers in school and primary school teachers for the reason I have mentioned that these teachers have the same qualification and training and abilities and can very easily walk into jobs in that sector. Employers' Case AFEI 49 AFEI submitted that the 'IEU applications do not satisfy the special case principle, are not justified on work value grounds, and the increases sought should not be granted'. Mr Boyce referred to paragraph [18] of the Full Bench decision in Nurses No 4 in submitting that the IEU had not: (i) demonstrated that the applications have "special attributes" or are "out of the ordinary" so as to take them outside the restrictions which may otherwise apply under the wage fixing principles; (ii) separated out those changes which have occurred to the nature of the work, skill and responsibility of employees or to the environment in which the employees work and which have not previously been the subject of compensation by reference to the increases made in Re Teachers (Non Government) Pre-Schools Award (2001) 120 IR 3 (the 2001 decision) and Re Teachers (Non-Government Early Childhood Services Centres Other Than Pre Schools) (State) Award [2006] NSWIRComm 4 (the 2006 decision); (iii) identified, on an objective assessment basis, whether any changes that have occurred amount to such a significant net addition to work requirements as to warrant the creation of a new classification or upgrading to a higher classification from the datum point of January 2006; (iv) identified or cross-referenced what changes were accounted for from the datum point or how any change is to be measured from the datum point, ie having regard to the work value increases taken into account as part of the 2006 decision. In essence, the IEU have failed to ensure that the competing obligations under Principle 6(a), (e), (f), (i) and (j) are appropriately reconciled; and (v) satisfied the Commission that the evidence they have brought, attempting to engage the work value principle, whilst voluminous, actually satisfies the strict test under Principle 6(a). Finally, the significant increases sought by the IEU in these applications warrant very close consideration by the Commission in terms of the cost of the claim and the public interest. 50 In response to the Union's claim, AFEI proposed a '1 year increase to rates of pay and allowances in the order of 2.8 per cent, reflective of the recent decision in State Wage Case 2009 [2009] NSWIRComm 120'. Mr Boyce submitted that the IEU had not made out a special case: The applicant suggests that effectively once it gets in the door as a special case, the Commission is not obliged to consider the work value principle. In my submission, notwithstanding the decision in Employer First and New South Wales ACT Independent Education Union case (2002) 115 IR 8 at 11 - para 8 - we submit it is still open to the Commission to have regard to the work value principle and it should do so in respect of this IEU application. Considering the nature of the evidence identifying the changes to work and I cite there an authority that sets out that proposition. Specifically we submit that the IEU has not demonstrated that their applications have special attributes or are out of the ordinary to take them outside the restrictions which might otherwise apply. They have not separated out those work changes that are necessary to be identified, by reference to the increase made by her Honour Justice Schmidt in 2001 and the consent arrangements in 2006. 51 AFEI submitted the following in relation to the history of teacher shortages and the IEU's proposed solutions: Notwithstanding that the issue of teacher shortages in the early childhood industry is not in dispute, AFEI submits that the Commission will not overturn the well established industrial principle that wage rates should not be set on the basis of worker shortages. Further, to increase wages on the basis of labour shortages would be contrary to the public interest (Re Public Hospital Nurses (State) Award (No 3) (2002) 121 IR 28 at [90]), including the fact that such increases do not reflect the true value of the work, are impossible to remove once the shortage has gone, and are better addressed by employers via targeted over-award payments. Whilst the evidence suggests that remuneration levels are a reason for shortages in early childhood teaching, there are also many other reasons. So much was conceded by Ms Herron and Ms Cheeseman in their evidence and/or during cross-examination. Importantly, it is noted that Teacher shortages have already been directly taken into account in the 2001 decision. To increase rates of pay based upon teacher shortages alone, or otherwise in the circumstances of this case, will certainly increase costs for employers, but is unlikely to have any ascertainable (let alone beneficial) effect upon improving attraction and retention rates for teachers in the early childhood sector. So much is so from the fact that the increases awarded in the 2001 decision and the 2006 decision have had no or very little effect upon teacher shortages in the sector. During cross-examination, Ms Cheeseman acknowledged that there is no evidence of a correlation between wage rates and attraction/retention rates. 52 AFEI submitted that the flow-on of pay increases could not be separated from the issue of parity: Mr Alchin's evidence during cross-examination was that whilst "in principle" he can agree about parity for all teachers, he was tempered in this view by the practical realities of the industry's need to provide affordable child care. According to Mr Alchin "you can increase pay in an attempt to attract more teachers but you also cannot remove the negative [or flow-on] effects upon the services" . In short, "you cannot separate the increases from the effects of those increases." AQCCC 53 The AQCCC relied on the submissions of the AFEI with regard to the IEU's special case claim. 54 The AQCCC submitted the following in relation to the issue of teacher shortages and parity of pay: The AQCCC acknowledges that there has been a chronic shortage of qualified early childhood teachers for at least the past nine or ten years. This is why the State Government has set in place the Early Childhood Interim Policy…. This problem cannot simply be "cured" by increasing wage levels, alone, as there are many factors as to why there is such a shortage, and it is not just limited to pay levels. The pay increases made by her Honour Schmidt J in the 2001 case has demonstrated this. It is a matter of public policy that must be addressed by the governments at both State and Federal level, and must include making the relevant early childhood degree courses more readily available than is currently the case. There are no "easy" solutions in sight. The AQCCC further respectfully submits that passing such costs onto centre owners to fund, who will in turn have no choice but to pass such costs onto the parents by increased fees, may lead to children being removed from the child care centre system and being placed into less satisfactory family day care, or children being cared for by family relatives, or unregulated, unmonitored, unaccredited "back yard" care. In which case such children will not have the benefits of socialization, and the many other positive behavioural and developmental aspects of attending child care centres. The shortage of teachers is a problem, which must be, addressed at a political level not, with respect, an industrial one. Consideration 55 There was a very large amount of evidence, including expert evidence, relating to a severe shortage of early childhood teachers in the non-government sector. That there is such a shortage is beyond doubt and, indeed, this was accepted by the employer parties in the proceedings. 56 It also must be accepted by the employers that there is a very significant gulf between the rates paid to teachers under the subject Awards and the rates paid to their counterparts in government schools. It was contended by the applicant Union that this disparity was a prime reason for the shortage. That is to say, early childhood teachers or those being trained in that vocation, were more likely to be attracted to work in government schools than non-government centres because, in the former, the pay was 21 to 27 per cent higher. 57 The employers' position, however, was that the Commission should not attempt to resolve the shortage by increasing rates of pay. It was contended that this was against principle, that there were other reasons for the shortage, that the increases sought were not affordable and that it would not resolve the shortage problem in any event, citing the continuing shortage notwithstanding the significant pay increases awarded in the 2001 decision of Schmidt J. 58 As AFEI correctly pointed out, in order to satisfy the requirement for a special case within the meaning of the Commission's Wage Fixing principles, the applicant must demonstrate that the case has 'special attributes' or is 'out of the ordinary' so as to take it outside the restrictions which may otherwise apply under the principles. 59 The gross disparity that exists between the award rates of pay for early childhood teachers under the subject awards and their counterparts in government schools suggests, prima facie, there is a significant anomaly in need of correction. Both classes of teacher receive the same professional training and, it would appear, perform similar work. However, the evidence was not sufficient to make a precise comparison of the work value of the two groups of teachers. 60 What is clear from the evidence, however, is that there has been a paradigm shift in public policy towards the education of young children as demonstrated by the recent initiatives of the federal and state governments. There have been substantial developments in understanding the importance of early childhood education in recent years, and this understanding has led to a range of government initiatives designed to improve the quality of early childhood education across a range of services including preschools and long day centres. There is no doubt on the evidence, including the IEU's expert evidence, that this proposition was made out. There is clearly an awareness across the community that has previously not been so apparent, of the fundamental importance of childhood education, particularly to address issues of social and educational disadvantage. 61 There is to be a massive injection of funds aimed at improving the quality of early childhood education across a range of services, including preschools and long care day centres. As discussed below, the evidence strongly supports a finding that unless steps are taken to alleviate the shortage of teachers in the early childhood sector, the effectiveness of the governments' initiatives will be seriously impeded. The evidence also supports a conclusion that the level of salaries presently applying under the subject awards is acting as a disincentive to attracting and retaining early childhood teachers. 62 In our opinion, these cumulative circumstances demonstrate that the case is 'out of the ordinary' and, consequently, the IEU has established that a special case exists. 63 Additionally, the IEU submitted that an application under the Special Case principle may rely upon matters which would otherwise fall within other principles, such as work value. In such a case, it was submitted, there was no requirement to dissect the components of the wages adjustment by reference to other principles: See Employers First v NSW/ACT Independent Education Union [2002] NSWIRComm 113; 115 IR 8 where it was stated at [8]: It was open to her Honour to make the award under the Special Case principle of the wage fixing principles having regard to the fact that no substantial issue was taken on the appeal otherwise as to her Honour's findings as to changes in work value or the undervaluation of work. There was no requirement for her Honour, and no warrant in this appeal, to dissect the components of the wage adjustment granted by reference to the operation of wage fixing principles other than the Special Case principle. 64 In the present case, the applicant relied upon changes to work value as part of its Special Case. In that respect, it was submitted that the work of early childhood teachers had continued to become more complex and demanding over recent years, in part as a result of the Government initiatives. There had been a marked increase in work value since January 2006, it was submitted. This increased work value magnified the unfairness of the current disparity in wage rates and further exacerbated the shortage of teachers prepared to work in early childhood education. 65 It is clearly the case that work value changes may constitute elements of a Special Case. However, in the present proceedings, in order to avoid double counting, we will deal with the work value factors separately. 66 In any event, as we have indicated, the first hurdle is overcome as it has been demonstrated that the applicant's case raises matters out of the ordinary that require consideration. The second hurdle is that the applicant must establish the special factors that warrant an award variation in order to set fair and reasonable conditions of employment: Re Operational Ambulance Officers [2001] NSWIRComm 331; (2001) 113 IR 384 at [168]. 67 It has usually been the case that reliance by an applicant solely on a shortage of labour has not been regarded by the Commission as a special factor justifying a wage increase. However, in Re Public Hospital Nurses (State) Award (No 3) [2002] NSWIRComm 325; (2002) 121 IR 28 at [91] the Full Bench stated: [91] When considering an application for wage increases on the basis that a special case exists and where it is claimed that there is a shortage of labour, the Commission is entitled to look at all of the circumstances in order to determine whether a special case is made out. The circumstances will include the important consideration of the public interest. In our opinion, the disadvantaged position of nurses and the difficulties being experienced in the public hospital system because of the nursing shortage are powerful public interest considerations. 68 In Nurses (No 3), the Full Bench also considered the loss of relativity between nurses and other comparable health professionals to be a significant factor in considering whether a Special Case had been demonstrated: [107] Nonetheless, in circumstances of a nursing shortage where nurses' wages are at levels lower than they historically have been compared to all other comparable health professionals, we consider a wage increase at this time that redresses this situation in significant measure will have a positive effect on nurses' decisions about whether they stay in their chosen profession. If we were not to address this issue there is no doubt that it would be, and would be seen by nurses to be, a negative signal and lack of appreciation which could have the effect of exacerbating the nursing shortage and the mounting problems facing the public health system. 69 Further, in Health Employees Pharmacists (State) Award [2003] NSWIRComm 453; 132 IR 244 at [54] and [55] the Full Bench held that a shortage of labour could be a significant factor in finding that a special case existed: [54] Accordingly, we are, of the view that the shortage of labour is a significant factor in finding that a special case exists, the reasons for which are primarily twofold. Firstly, as discussed earlier, the shortage of labour is connected to changes in work value. There is little doubt that a shortage of labour in the relevant streams has resulted in changes in the way work is now performed, such that it has resulted in changes in the nature of the work (that is, the requisite skills and responsibilities) and in the value of that work. [55] Secondly, given that this matter is concerned with significant shortages in a number of occupational streams in the public health sector, it is plainly a matter of considerable public interest. In this context, the fact that there is a labour shortage, and the magnitude of that shortage in some areas (such as pharmacy), is sufficient to make out a special case in this matter. 70 Here, it was contended for the IEU that all of the elements identified in the two cases above, that is, loss of relative wages, increases to work value, and a shortage that is a matter of very considerable public interest, were present. It is undeniably the case that there has been a loss of relative wages by teachers under the subject Awards compared to their counterparts in government schools. Teachers in the early childhood sector had substantial parity with teachers covered by the school teachers' awards in 1990, only to fall significantly behind from the mid 1990s. This situation was partially remedied by the decision of Schmidt J in 2001. However, early childhood teachers have once again fallen significantly behind school teachers. As compared to early childhood teachers, teachers employed in schools and government preschools earn 27 per cent more than teachers in non-government preschools and 21 per cent more than teachers in long day care. 71 It has also been established there is a critical shortage of early childhood teachers and that the shortage has been exacerbated by the disparity in wages. Ms Cheeseman described the shortage as being 'at crisis point'. The Commonwealth has estimated that without appropriate intervention, there will be a shortfall of at least 7000 early childhood education and care workers in Australia by 2013: Early Childhood Policy, June 2009. Public consultations conducted by the Department of Employment Education and Workplace Relations ('DEEWR') in August and September 2008 found that a failure to address workforce issues was a key restraint to the achievement of reform in early childhood education. One of the issues consistently raised in the consultations was that: The interrelated issues of low wages, high turnover and difficulty attracting and retaining staff were seen as being of paramount importance. See DEEWR, A National Quality Framework for Early Childhood Education and Care , (January 2009) at p4. 72 Clause 52 of the 2004 Regulation requires one teacher for each centre of 30 - 40 children, two teachers for centres with 40 - 60 children, and three teachers in centres with 60 - 80 children. However, it appears that the admitted shortage of teachers is forcing many long day centres and preschools to apply for exemptions from this requirement. Alternatively, the strategy has been to lower the number of places to below 29, so no teacher is then required. We agree with the applicant's submission that these solutions are contrary to the public interest, given the Federal Government policy and funding support for more quality teaching in the early childhood sector. 73 The Regulation Impact Statement for Early Childhood Education and Care Quality Reforms released by the Council of Australian Governments ('COAG') on 3 July 2009 provides that by 2013 it is proposed that both preschools and long day care centres with 25 children would have to have to employ at least one university qualified teacher and services with less than 25 children would be required to have access to a qualified teacher for educational leadership. An additional objective has been set that every child should have access to a program of 15 hours of early childhood teaching in the year before formal schooling commences. It follows that both of these measures will significantly increase the demand for teachers in the early childhood sector and, as the applicant submitted, if not otherwise addressed will worsen the shortage situation. 74 It would also appear that turnover in teacher positions in early childhood is high, in the vicinity of 25 per cent per annum: National Children's Services Workforce Study, August 2007 at p127. Ms Press noted in her evidence that consistency and stability of staff were important features of effective teaching in early childhood. We agree that high staff turnover seriously undermines the quality of education and care that may be offered. 75 The evidence that the wages disparity has contributed significantly to the shortage of teachers is, in our opinion, overwhelming and not really challenged by the respondents. We refer to the evidence of Ms Cheeseman, Ms Press, Ms James, Ms Connors, Ms Connell, Ms Fanning and Ms Jacobsen. What Ms Connors said was striking: Since 2005 there has been a reduction in the number of early childhood education students studying at the University of Newcastle who are choosing fourth year intern placements in child care centres and preschools. They quote the inequality of pay between schools and child care, longer working hours, shiftwork, and less holidays. There are currently 60 students in 2009 completing internships from the University of Newcastle. Of those, 8 have chosen to do their internship in early childhood centres (our emphasis). Conclusion 76 We find that a special case has been made out by the applicants for increases to rates of pay under the two Awards. There is a critical shortage of early childhood teachers that is almost certainly going to get worse as the Commonwealth's policy agenda on early childhood is implemented. As we have noted, without adequate intervention, a shortfall of at least 7000 early childhood education and care workers by 2013 is estimated. 77 We are satisfied that the very large gap of up to 27 per cent between the pay of early childhood teachers in the non-government sector compared to the government sector, is a significant contributing factor to the teacher shortage. The gap is not justifiable on any test, especially when what is at stake in early childhood education. Ms Press noted in her evidence that the link between poor wages and conditions and the shortage had been identified in numerous reports over recent times. Her unchallenged evidence concluded: Unless teachers in early childhood programmes achieve wages parity the early childhood sector will continue to be beset with teacher shortages. These shortages seriously erode the quality of children's care and education and undermine polices designed to improve children's educational outcomes. 78 It was submitted for the respondents that the shortage of teachers could not be resolved by industrial means and that a political solution was required. A political solution is not likely to repair the pay gap. Significant extra funds have been made available by governments in relation to early childhood services. We deal with the detail of that funding later in this decision, but part of it is to enable centres to employ more teachers. The Commission may facilitate the application of that funding to employ more teachers by increasing current award rates of pay and, in doing so, assist in ameliorating a major disincentive to teachers being attracted into and retained in the early childhood sector. 79 In our opinion, for the reasons we have explained the public interest would be best served by increasing rates of pay in the subject awards. We shall deal with the respondent's case regarding affordability after addressing work value. WORK VALUE CLAIM IEU's case 80 The Union claimed that several factors had changed the work value of teachers. Such changes had 'led to more complex and onerous demands upon teachers, both in terms of pedagogy and in terms of administration and associated duties'. The IEU assigned the various changes to teachers' roles into four general categories: (i) More rigorous, structured and documented teaching regime; (ii) Increased administrative responsibilities; (iii) Increase in extent and complexity of client requirements; and (iv) More onerous regulatory requirements. 81 Whilst there were some issues specific to the teaching or directing role, much of the evidence adduced regarding work value changes was applicable to both teachers and directors. This was more apparent in the evidence given by directors who were also the sole teacher (or the only full-time teacher) at a centre. Overview of IEU's evidence 82 Ms Verena Heron has held the position of Union officer since 1986. Ms Heron gave written and oral evidence addressing issues relating to work value changes. Ms Heron explained the evolving nature of the framework in which early childhood education is conducted by referring to, inter alia: (i) the impact of the Children's Services Regulation 2004; (ii) changes implemented by the Department of Community Services ('DoCs'); (iii) Quality Improvement and Accreditation System ('QIAS') administered by the National Child Care Accreditation Council ('NCAC'); (iv) DoCs Office of Child Care paper: NSW Curriculum Framework, The Rationale for the Practice of Relationships; (v) DoCs Discussion Paper No. 1: School Readiness; (vi) Disability Standards for Education 2005, formulated under the Disability Discrimination Act 1992; (vii) Commonwealth Government 2008 paper: A National Framework for Early Education and Care ; and subsequent Draft for Trial paper: Belonging, Being and Becoming: an early years learning framework for Australia. 83 Ms Heron provided a comprehensive assessment of the implications for preschools and long day care centres flowing from the 2004 Regulation. The IEU submitted that only a few of the requirements placed on long day care centres and preschools contained in the 2004 Regulation were contained in the previous regulatory instrument, the Centre Based and Mobile Child Care Services Regulation (No 2) 1996. 84 The Union highlighted in its evidence the policies listed in clause 85 of the 2004 Regulation and the impact of these requirements on directors and teachers. Clause 85 provides: Policies to be made available (1) The licensee of a children's service must develop policies to promote the health, safety and well-being of children attending the service, and must ensure that copies of those policies are available at the premises of the service for inspection by the children's parents. (2) In particular, the policies must deal with the following matters: (a) child protection, (b) ethical conduct, (c) development and education, (d) the treatment of children with special needs, (e) interactions with children, (f) procedures for handling complaints, (g) parental involvement, (h) access, (i) arrival and departure, (j) excursions, (k) confidentiality of records, (l) child health, (m) illness, accident and emergency treatment, (n) administration of medication, (o) infectious diseases, (p) food and nutrition, (q) water safety, (r) sun protection, (s) storage of dangerous substances and dangerous equipment. 85 The applicant Union adduced evidence from directors of centres regarding the implications of the above clause, contending that it had resulted in increased workload and work value changes for directors and teachers. Ms Heron submitted that the requirements regarding policies were more onerous and detailed, a marked difference from the requirements under the previous regulation. For example: Many of these policies were not required by the previous Regulation or other legislation. Even where they were required, other clauses of the current Regulation are more prescriptive in relation to the content of the policy, whereas previously frequently merely the requirement to have a policy was specified. … The 2004 Regulation strengthens the requirement to provide adequate supervision at all times. For example, for the first time there is a requirement that children must be supervised in the toilet or washing area, if that area in not visible or easily accessible from the main area (Clause 66 (4) of the Regulation). There is also a specific requirement for the first time that in a mixed age group of children, requirements for staffing must be set as those applicable to the youngest child in the group. Where more than one group is in one area, it must be clear which children are being supervised by particular staff. 86 During cross-examination, Mr Boyce challenged Ms Heron's submission that the workload had increased as a result of the 2004 Regulation. Ms Heron accepted that the former regulation had similar requirement to the 2004 Regulation but maintained that the application of them was different. Ms Heron also accepted that the 2004 Regulation was in place when Wright J varied the Awards by consent in 2006. It was put to Ms Heron that the 'practical application' of the 2004 Regulation was no different to its predecessor. Ms Heron disagreed. 87 In re-examination Ms Heron explained what she meant by the application of the 2004 Regulation being different to its predecessor. For example: Q. Similarly so, he [Mr Boyce] asked you some questions about special needs and suggested, well, there were policies required in both 1996 and 2004, and again I think you answered by saying, nevertheless in the context of special needs there were changes in how those policies operated. Remember giving that evidence? A. Yes, that's correct. Q. What you were adverting to when you gave that evidence, in other words: there have been changes in how the special needs policies operated? A. Well, it's from - the evidence from the teachers is that there's an increase in the number of special needs students. The method of funding - whether it be federal funding, which goes to long day care, or state funding, which goes basically to preschools - the amount of funding has been in effect frozen. So that previously you may have had somebody that's considered a level 4 in a disability or special needs student that requires one-on-one with somebody the whole time that they're present at the centre, then the amount of funding doesn't stretch for that amount of time and so therefore the teacher is then required not only to oversee - and they can't - the amount of funding doesn't stretch to the qualifications. So there's frequently - teachers aren't employed so therefore untrained people are employed to look after the special needs children and their particular needs, and the teacher then is required to do the individual program for that student, being contact with all the outside agencies that the child might require, whether it be medical agencies or could be speech pathologists or psychologists, whatever is required, as a point of contact. Q. Just on the topic of special needs, Mr Boyce then came back to it and asked you about the right of refusal if there are genuine resourcing issues. I think you said, "Well, most don't, nor can they refuse." Remember you gave that evidence? A. That's correct. Q. When you say "most don't", what's the foundation for your-- A. Well, my understanding is they can't refuse an enrolment of a child because their funding and CCB accreditation, everything else, would not allow anyone to refuse the enrolment of any child. Q. The other more general answer you gave with respect to the policy is you said that in terms of their application being different, you said how they're written in and how they operate has changed significantly. What did you mean by how they're written in and how they operate has changed significantly? A. Well, they need to be continually reviewed. One of the DOCS requirements is they're continually reviewed and that, for example, they have to take the specific part of the regulations that the policy might refer to and then develop a policy. This policy then needs to be continually reviewed according to what their program that they're having at the current time. The number of policies required by DOCS - that's the list - the number of policies that DOCS require for licensing is much more extensive than what's set down in the regulations. For example, one of the teachers referred me to their evacuation policy in case of emergency. Whereas once they had one evacuation policy, now they have one for fire, one for flood, one for any number of issues. 88 In her oral evidence in chief, Ms Heron summarised the attitudes and expectations of parents with relation to the implementation of the policies: Q. … I just want to know whether that's a relevant change as to whether parents are now - when it was that parents started to become involved in accessing policies. Is that something new or not? A. I think parents are much more aware and are much more demanding of their services. For example, one director that I was speaking to a few weeks ago indicated to me, previously when a parent walked into the centre, they would never - and this is a centre that has three teachers employed full-time - the centre community-based service would never have questioned the qualifications of the staff. But because of the emphasis on early childhood education, they come in and they'll question that. And I think the same goes for things like child protection or accidents or excursions or anything else that they might have policies on. 89 Ms Heron explained how the 2004 Regulation had impacted on and increased duties and requirements for directors and teachers: The Regulation now requires that the applicant for a licence for a child care service must ensure that primary contact staff understand their responsibilities under the child protection legislation and the proposed authorised supervisor must have completed training in child protection in relation to all requirements under the child protection legislation (see Clause 13(l)(b)(ii) and Clause 15(2)(e) of the Regulation). These changes ensure that the obligations pursuant to the child protection legislation are met. A major change in the scheme of the Regulation is that the licensee is now responsible for ensuring processes are in place to achieve compliance with Part 3 (Faculties and Equipment Requirements of the Regulation). Further, at the time a licence is to be renewed, a DoCS adviser will not necessarily visit the centre to assess compliance with the Regulation. There is therefore more responsibility on the licensee, and in practice, the authorised supervisor, to ensure compliance with the Regulation without advice from DoCS. The changes to the Regulation impact particularly on trained early childhood teachers (who play a supervisory or leadership role in each room) and on the authorised supervisor of the service. 90 In addition to her evidence regarding the 2004 Regulation, Ms Heron explained the inception of, and implications flowing from, changes to the NCAC. Since 1994, the National Child Care Accreditation Council Inc (NCAC) has administered the Quality Improvement and Accreditation System (QIAS). QIAS is a national quality assurance program for centre based long day care centres which is funded and supported by the Commonwealth government. In order for parents to be eligible for the Child Care Benefit, a Commonwealth subsidy to assist parents with child care expenses, if the child was attending a long day care centre, that centre had to be accredited by QIAS. (The Child Care Benefit is not available to parents of children attending pre schools). As a consequence almost all long day care centres are accredited by QIAS. A major review occurred of QIAS between 1998 and 2000, with changes to be implemented from 2002. A further review occurred in 2006 with further changes implemented in 2008. One of the five key changes in the first review were the new requirements for centres to demonstrate by examples achievement of each indicator of quality care and to develop a "Continuing Improvement Plan" for each quality area. This means, that even where a centre considers it is meeting each indicator of quality care to a high degree, as demonstrated by examples, it must still develop a plan for further improvement. The "Self-Study Report" must be completed by each centre every 2.5 years. 91 The QIAS identifies seven quality areas and 33 principles it requires long day care centres to meet: Quality Area 1 - Staff Relationships with Children and Peers Principle 1.1: Staff interact with each child in a warm and friendly way Principle 1.2: Staff guide each child's behaviour in a positive way Principle 1.3: Staff initiate and maintain respectful communication with each child Principle 1.4: Staff respect each child's background and abilities Principle 1.5: Staff treat all children equitably Principle 1.6: Staff communicate effectively to promote respect and professional teamwork Quality Area 2 - Partnerships with Families Principle 2.1: Staff and families communicate effectively to exchange information about each child and the centre Principle 2.2: Staff encourage family participation and involvement in the centre Principle 2.3: The centre has orientation processes for children and families Quality Area 3 - Programming and Evaluation Principle 3.1: The program reflects a clear statement of centre philosophy Principle 3.2: Each child's learning is documented and is used in planning the program Principle 3.3: The program assists each child to be a successful learner Quality Area 4 - Children's Experiences and Learning Principle 4.1: Staff encourage each child to make choices and participate in play Principle 4.2: Staff promote each child's ability to develop and maintain relationships Principle 4.3: Staff promote each child's language and literacy abilities Principle 4.4: Staff promote each child's problem solving and mathematical abilities Principle 4.5: Staff promote each child's enjoyment of and participation in the expressive arts Principle 4.6: Staff promote each child's physical abilities Quality Area 5 - Protective Care and Safety Principle 5.1: Staff act to protect each child Principle 5.2: Staff supervise children at all times Principle 5.3: Staff ensure that potentially dangerous products, plants and objects are inaccessible to children Principle 5.4: The centre ensures that buildings and equipment are safe Principle 5.5: The centre promotes occupational health and safety Quality Area 6 - Health, Nutrition and Wellbeing Principle 6.1: Staff promote healthy eating habits Principle 6.2: Staff implement effective and current food safety and hygiene practices Principle 6.3: Staff encourage children to follow simple rules of hygiene Principle 6.4: Staff ensure toileting and nappy changing procedures are positive experiences Principle 6.5: Staff support each child's needs for rest, sleep and comfort Principle 6.6: The centre acts to control the spread of infectious diseases and maintains records of immunisations Quality Area 7 - Managing to Support Quality Principle 7.1: Written information about the centre's management is readily available to families Principle 7.2: Written information about the centre's management is readily available to staff Principle 7.3: Staffing policies and practices facilitate continuity of care for each child Principle 7.4: Management provides professional development opportunities for staff 92 The DoCs Office of Child Care released a paper in 2002 entitled A Framework for Constructing Meaning, Rationale for the practice of relationships: Essential provisions for children's services. Ms Heron explained how the paper gave 'recommendations or suggestions about the way in which services can support the learning of children, the way in which children learn, the role of parents, interactions between children and adults, and the type of experiences ("provisions") which centres should provide for child': This document was intended to validate and document existing excellent practice in early childhood services, to clarify the common elements of good practice and to provide an endorsed framework that is a strong statement about the importance of the early years and the types of experiences that support children's learning and development appropriately [page 10]. The Curriculum Framework includes a list of outcomes, expressed more generally than is usual for curriculums (at pp 125-128 and Appendix 2), towards which professional educators should be working. At pages 133-5, is set out the type of documentation and observations recommended to support planning. This documentation is much more comprehensive and drawing on more diverse sources of information than has traditionally occurred with observations in early childhood (p134). The Curriculum Framework also specifically refers to the importance of transition to school, whilst stressing that this is not achieved by restricting children's learning in early childhood services to key learning areas as taught in schools (p145). 93 Ms Heron gave evidence of the relevance of such types of papers in the early childhood education industry: This document, whilst not directly legally enforceable in relation to children's services, has been published by the NSW government and developed by a Steering Committee chaired by the Manager, Office of Child Care, Department of Community Services and including representatives from almost all key interest groups in the provision of children's services. It has now been widely adopted by teachers. The approach embodied in the document is also often referred to as the "emergent curriculum" in the sense that children's learning emerges from the experiences of children. It is also reflected in clause 64 (1) of the Regulation, which, unlike the corresponding provision in the previous regulation, requires that a centre have policies on the involvement of children in the development of the curriculum. The Curriculum Framework also provides meaning and guidance in respect of the requirements in Clause 64(2) as to the type of program which must be provided to children and is therefore now widely followed by early childhood teachers. 94 A paper produced by DoCs and the NSW Parenting Centre, entitled Discussion Paper No 1: School Readiness, further addressed issues relating to children's development and education in preparation for their formal school years. Ms Heron stated the following in relation to the paper: There are now much greater expectations about transition to school by parents and employers and transition to school programs are now expected to be provided in all centres. Centres and parents are increasingly aware of the obligations of centres to enrol and provide an appropriate program for children with disabilities, even where a centre may feel it has difficulty if meeting the special needs of such children. 95 Guidelines for education providers were formulated under the Disability Discrimination Act 1992, entitled Disability Standards for Education 2005. The standards are binding on preschool and are a guide for child care providers. Ms Heron described the effect of the standards on the early childhood sector: These obligations in relation to special needs children are increasingly clear notwithstanding that the funding available has been reduced, under the current Supporting Children With Additional Needs (SCAN) scheme of the Department of Community Services. Information about this scheme is [in DoCs paper: Guidelines for Identifying Level of Support Needs]. Pursuant to this scheme, centres may receive some additional funds for physical adjustments to the centre or for staff training but funding is usually not available for additional trained staff as occurred previously. As a consequence teachers need to plan and adjust the program including by the development of an Individual Education Plan, for each special needs child, for the child, in addition to the teacher's usual duties without time being available and without specialist support. This requires additional expertise, and adds to the complexity of the work of the teacher in devising and delivering the program for the group of children. 96 A significant issue arising from the proceedings before the Commission was the Commonwealth's discussion paper, A National Quality Framework for Early Childhood Education and Care. The paper was produced in August 2008 by the Productivity Agenda Working Group – Education, Skills, Training and Early Childhood Development. Arising from the paper was a draft for trial released in February 2009, Belonging, Being and Becoming: an Early Years Learning Framework for Australia. Ms Heron explained in broad terms how the new framework will impact on the early childhood sector: The Framework seeks to establish an approach to learning, teaching, assessing, documenting and planning that is based on individual children's strengths. It will be an over arching document that provides the basis for natural consistency across the years from birth to the age of five and during transition to school. Five outcomes are proposed: Children develop physical well-being and a range of physical competencies. Children are effective communicators. Children are creators, thinkers and problem solvers and use a variety of media to physically aesthetically and creatively express themselves. Children develop an interdependent understanding of self. Children have a positive sense of self and others and are active participants within society. It is anticipated that the new Framework will have a significant impact on the early childhood education and care and require significant change to the existing licensing and accreditation systems for both child care and preschools. … This [draft for trial] sets out in more details the outcomes in the discussion paper and the actions to be taken by early childhood educators to facilitate achievement of the outcomes. 97 Subsequent to Ms Heron filing her written evidence, there were updates on the National Framework. Ms Heron gave further evidence in this respect: On 3 July 2009 (after my statement was filed) the federal government released a number of documents endorsed by the Council of Australian Governments (COAG) building on proposals in federal government discussion in papers released in 2008 and 2009. The Regulation Impact Statement for Early Childhood Education and Care Quality Reforms released by COAG on 3 July included a proposal to reduce the duplication, overlap and inconsistencies arising from the operation of the national accreditation system QIAS and state and territory regulation by creating one streamlined system of regulation (at p 24). The key objectives of the proposed system are stated as: to build a high-quality, integrated national quality system, including a quality assurance system, for early learning and care that takes account of setting, diversity of service delivery, and the age and stage development of children, while supporting the workforce participation of families to enhance learning and development outcomes for children in different care settings, with an initial focus on early learning in the years prior to formal schooling. The Regulation Impact Statement specifically aims to reduce the regulatory distinctions (existing in other states) between preschools and long day care centres. By 2013 it is proposed that both preschools and long day care centres with 25 children would have to employ at least one university qualified teacher and services with less than 25 children would be required to have access to a qualified teacher for educational leadership (at p26). Details of how the requirements for numbers of teachers in larger services would interact with existing NSW regulations are still unclear. It is however clear that these changes will significantly increase the demand for university qualified teachers nationally and it is anticipated that the demand will also increase in NSW. I attended a public consultation on the Regulation Impact Statement on July 29 where representatives of DEEWR acknowledged both in their opening remarks and in answers to questions that they are aware that there will be an increased demand for early childhood teachers in the future, and workforce shortages is an issue that they will need to address. On 14 August 2009 I attended public hearings held by the current Senate Inquiry into Early Childhood Education where the questions of shortages of early childhood teachers was acknowledged by both by Committee members and other witnesses before the inquiry as being a significant issue for the sector. The requirement that each child has access to a program of 15 hours of early childhood teaching (delivered by a four year degree qualified teacher) in the year before formal schooling extends to services of a type which would not currently employ teachers. For example, it may mean that services such as family day care would need to utilise the services of other providers in order to provide the early childhood teaching to children attending family day care. Expert evidence 98 Ms Press, in her evidence, addressed the pedagogical significance of early childhood education and current research on the issue: Children's earliest years are a time of tremendous developmental importance. They are undergoing significant developments in cognition, language, motor skills, adaptive skills and social-emotional functioning. These years are considered foundational to children's ongoing development and learning (Shonkoff and Phillips 2001; Watson and Moore 2002). As a result, the quality of children's experiences in formal early childhood settings is critical because it has profound impact on the quality of children's daily life and also their developmental pathways. ... Good quality early childhood education is an effective intervention for children at risk of school failure. In the landmark Effective Provision of Preschool Education (EPPE) Study, 1 in 3 children were identified as at risk of developing learning difficulties at the start of preschool. This fell to 1 in 5 by primary as a result on children's participation in a high quality ECEC programme. … Teachers are pivotal to quality and their work should not simply be equated with routine tasks associated with health and safety. The work that they do with children and families is profoundly important. Specialist early childhood training and teacher training in particular, are extremely important. In the EPPE study, centres with highly qualified teaching staff had better outcomes for children. Early childhood teachers, working with children, and as the pedagogical leaders, had the greatest impact on quality. Further, managers with early childhood teaching qualifications also positively influenced quality (Siraj-Blatchford, 2002, cited in Mooney et al., 2003). ... In 2004, the Draft Agenda for the National Agenda for Early Childhood called for a "skilled and knowledgeable early learning and care workforce able to provide best-practice in early learning and care programs for children and to provide parents with consistent, up-to-date and practical advice about child development, health and wellbeing" (p.16). 99 Ms Press' evidence outlined the general response from the community regarding the learning and development of children in their early stages: Over the past three decades, the steadily increasing number of young children entering formal early care and education services, has lead to intense research attention on the impact of non-parental care on children's development. Research about outcomes for children in such environments, has identified the quality of early childhood programmes as a key issue in determining whether the effects upon children are adverse or positive. As a result, the general community has an expectation that not only will children be kept safe but that their learning and development will be actively nurtured. 100 Ms Press explained the increased governmental interest and involvement as a result of the above attitudinal changes to early childhood education: As a result state, territory and Federal governments have instituted mechanisms designed to influence the quality of children's education and care services. The Federal Government accredits long day care through the Quality Improvement and Accreditation System (QIAS) . State and territory governments establish minimum standards through the mandatory regulation of children's services (both preschool and long day care). In recognition of the fact that early childhood programmes should be learning environments for all young children, most jurisdictions have early childhood curricula. 101 In her evidence, Ms Press canvassed the complexities presented to early childhood teachers: The increasing complexity of teaching in early childhood services arises from several different factors, including a more sophisticated understanding of children's development and greater community and government expectations of staff in children's services. The internal work environment has also become more complicated as teachers endeavour to respond to the changing needs of families. For instance, attendance patterns in children's services are often highly variable. Unlike school, with its predictable starting and finishing times and relatively stable attendance throughout the year, children frequently attend childcare on a part time basis, have differing daily starting and finishing times, and may commence and finish their time at the service at any time during the year. This means that teachers can be working with varying groups of children from day to day as well as throughout the year, must become familiar with, and build meaningful relationships with a great many individual children and families, and have the skills to work well with changing groups of children. Teachers within the long day care sector are likely to work longer days and have shorter holidays than other teachers. Research in the UK appears to mirror some of the research within Australia, pointing to long hours, expectations of unpaid work (for meetings and planning) being factors which lead to job dissatisfaction (Rolfe, 2005). The volume and extent of regulation and quality related policy require high levels of accountability from teachers. In order to acquit their responsibilities, teachers need to: be well informed and vigilant about meeting the standards established by various regulatory and accrediting bodies; be able to develop a responsive curriculum which caters to the diverse needs of individual children as well as groups; facilitate constructive relationships between children; work constructively with other adults in an environment of multiple and sometimes unpredictable demands; develop strong working relationships with other professionals and agencies working to support children and families; provide pedagogical leadership (including mentoring) to other staff. As early childhood programs are considered effective forms of early intervention children with additional or specialist needs are often enrolled in programs as a remediatory measure. Thus teachers must also develop and implement an inclusive curriculum that takes into consideration a wide range of variation in development as well as measures that help remediate the impact of physical or cognitive impairment or social disadvantage. The report of the Commonwealth Childcare Advisory Committee Childcare Beyond 2001 highlighted the "contrast between the high level of commitment many early childhood professionals bring to their complex role compared with the wide undervaluing and misunderstanding of their contribution". Thus for many working in early childhood, there is a sense that the significance of their work in the lives and development of children and the multiple responsibilities which they are required to undertake everyday are overlooked. Teachers working in early childhood are underpaid for the level of responsibility that they undertake, and have few opportunities for career advancement within the field. 102 The Union further relied on expert evidence from Ms Cheeseman relating to the current environment of early childhood teaching and the requirements placed on teachers: Early childhood education has received greater social and political interest in recent years. No longer considered merely childminding or a place to play, early childhood experiences are now considered to be of great importance in the formation of habits and dispositions necessary for success in later life (Heckman, 2006). This increased attention to the early childhood years has brought with it increased societal expectation of what should be happening and what should be the outcomes of children's participation in early childhood programs prior to formal schooling. These increased expectations bring increased pressure and demands on early childhood teachers. Comparable to the expectations of teachers in schools, parental expectations have increased and require early childhood experiences offered in prior to school settings to be suitably rigorous to equip children to make smooth transitions to formal school and lay the foundations for lifelong learning success. Early childhood teachers have experienced increased pressure to demonstrate that their teaching is effective and based on latest research evidence. In particular recent attention to the importance of children's emerging literacy and numeracy development requires early childhood teachers to provide evidence to parents that their educational programs take adequate account of these important learning areas. Recent international studies, for example the Effective Provision of Preschool Education (EPPE) from the United Kingdom have stressed the important role that teachers play in educational outcomes of young children. This study demonstrated the close connection between the quality of teachers and the achievements of children. This study also exposed some of the high level and intentional pedagogical practices that early childhood teachers engage in when they support children's learning effectively.… The study leaves little question that the practice of teaching in early childhood is at least equal in complexity to teaching practices found more commonly in schools. The study also revealed the importance of these particular pedagogies for children of such a young age. The EPPE study also revealed that these pedagogical approaches were most often observed in more highly qualified staff, that is, university qualified teachers. These pedagogical approaches were seen as critical to the outcomes of children and were more effective than pedagogical approaches of direct instruction or passive observation. The interventionist role of the teacher was shown to be of greatest importance in determining educational outcomes for children. This strengthens the call for early childhood teachers in all prior to school settings. The Australian Government has recognised the significance of this study and committed to universal preschool provision contingent on the employment of 4 year university qualified teachers to deliver these enhanced outcomes for young children. This evidence leads to the premise that teachers in prior to school settings must be recognised and appropriately rewarded by their employers and the community for the important role they play in children's learning and development. In attending to the educational needs of a range of children, early childhood teachers in prior to school settings come across a significant proportion of children for whom English is their second language. Given the young age of children attending prior to schools settings, this can be the first experience that many young children encounter with English. This factor brings increased complexity to the work of teachers in prior to school settings. While some support is offered to services in the form of government funding through the State Government Supporting Children with Additional Needs (SCAN) program or through the Australian Government funded ISP (Inclusion Support Program), these supports are offered on a priority basis often allocated to children with higher support needs. Many early childhood settings accommodating children with little or no English operate with no formal support placing significant demands on teachers in those settings. Most school settings offer ESL staff specialists to assist children in their transition to English providing greater support for classroom teachers. 103 In cross-examination as to the recency of the work value changes, Ms Cheeseman gave the following evidence: Q. You refer to a number of different matters - paragraph 20 - I suggest to you those matters, going back to your experience up to 2003, they are not new matters or obligations? A. I think in terms of the heading there that is perhaps true. In terms of the complexity and sophistication, I do think that has increased. Q. At paragraph 21 in the second sentence you say childhood services are "no longer considered merely child minding...later life." You cite Heckman 2006. You are really saying that has been the case for some time? A. That situation has been increasing because there has been increasing research coming out about the importance of the early years. The expectation around education of young children increases all the time as the evidence increases. Q. The concept that child minding centres or early childhood services are "merely a place to play", that concept is not something that is a recent perception by the public? A. No, I don't agree with that. I think it still is very much a perception of the public. The 2006 refers to the claim that the expectation is increasing. I am not saying it started in 2006. Q. When do you say people stopped considering childcare as a place to play? A. I do not think people have stopped considering childcare as child minding. I think there is a lot of work to do. In a policy sense it is no longer considered childminding. 104 Ms Cheeseman summarised in her evidence in chief the impact that the Early Years Learning Framework was having on early childhood education: Q. The next entry in that section says, "National early years learning... relations." Can you indicate what that early years learning framework is about? A. It is one of the Rudd government's national reform agenda initiatives. At the time of writing this it was not in publication. It has now been released. I was a member of the core team which produced that document in collaboration with the COAG working party. Q. What is the framework? A. It is the Australian first national early years learning framework which brings national principles, practices, outcomes and expectations for children to attend, all children's services prior to school, children one-five years. Q. When is that likely to come into practice? A. It has been signed off by COAG. It has been released. It is currently being read and it is open for use by services. There has been an announcement they will be part of the national quality standards framework and it will be part of the ratings system, the system that we expect will replace quality assurance and regulations. Q. How far off is that? A. It has not been a confirmed date to start that. Q. What do you mean by that? A. It is up on the web. Services can access it. The Department of Education and Workplace Relations are in the process of having documents published for distribution. Services who are happy to engage with it are able to do that. At the moment there is no compulsion for people to engage with it. Q. In terms of the teaching work force, presumably this is the people it is directed to? A. Yes. The target audience of the document is qualified people, teachers and those holding the diploma level. It is to be an accessible document for all people working in children's services. Q. What is the level of change in the way teachers go about their business? A. What it is doing is formalising the expectations of what will happen in early childhood settings. Previously each State and Territory has had their own versions. In New South Wales we have had informal arrangements, some mention of curriculum in the recommendations and some coverage of curriculum in the recommendations and the quality assurance for long day care. Q. So you say it is formalisation of what used to be an informal approach to these matters? A. There will be a criteria that teachers will have to report on and show evidence of under the national rating system. Q. That notion of outcomes in the early childhood sector, how does that appear to the notion of outcomes we hear about in the school system generally? A. There is a good match between what is expected of children in the first years of kindergarten and we refer to that in the writing of the document to have really smooth segues and transactions prior to school expectations, to first use of school expectations. Teaching Regime 105 A significant aspect of the IEU's work value claim was that there had evolved a 'more rigorous, structured and documented teaching regime'. 106 Ms Connell, director and teacher at Albury Preschool, described the nature of her teaching regime and its evolving nature: As a teacher I am required to keep 26 individual programs. As a teacher I am also required to keep observations, individual programs, and daily/weekly diaries. Digital documentation, portfolios is an expectation but reporting of all this on a regular basis to parents is now a requirement. I am now required to keep a daily diary to report to parents and keep them informed of their child's progress and the classroom program on any given day. The expectation to keep digital records means that staff must be trained in the use of cameras and appropriate software. As the Director I was trained in this area at Centre's expense and am required to train other staff members. With the philosophy change in early education and the focus on the Emergent Curriculum, this has impacted on the way I teach, plan and document my program. As a teacher I am required to keep daily documentary and digital evidence and observations of children's interests and development and develop and plan individual programs related to the information I have gathered on each child. This must be evaluated regularly and objectives formulated accordingly. This has resulted in an increased workload for all teachers. While the Emergent Curriculum has been with us for many years, the way we document it and present it to parents has changed and we are more accountable. 107 Ms Fanning gave evidence as to the changes she experienced prior to her departure from early childhood teaching: In my last five years of teaching I saw increases in the complexities of the types of children that we were then receiving into the centre and the demands that they placed on us as teachers. Parental expectation of child reports meant that you're having to do a lot more portfolios and documenting their developmental records in a more formalized way and printing off all these reports for parents, having the meetings regularly as well. They're the sorts of things that eat into your time as well because you've got to make time for those meetings and you try and squeeze it in before they arrive or after they've gone home and you're not paid for that. Prior to my leaving, in 2006 I was just finding that there were more children coming in with additional needs, more so than in the past. There was one particular child who had autistic tendencies and he had gone through another childcare centre; it wasn't detected until he came to our service and I realized that something wasn't right. I had to start the ball rolling and that was a very time consuming process because all the experts, psychologist and all the doctors he was sent off to needed reports filled out by me because I was the one who was first alerted to the problem. Things like that actually took a lot of time. Applying for funding, applying for support people, having meetings with support people who come in like the physiotherapist, the occupational therapist, they all want to come in to visit and you have to set aside time also to meet with them as well, to help with an individualised program to meet this child's needs, and supporting the parents so a lot of the time you're not just teaching the child you're supporting the parents as well. 108 Ms Fanning was cross examined about her evidence: Q. When you talk about your experiences in your statement you are referring to the period since around 2004? A. That's right, that's from my recollection. That's when most of the changes in the industry occurred and that's what was the catalyst for me for leaving the industry. Q. In paragraph 11 you make some complaints about various matters that were part of your role in the second part of that paragraph. And you say it took a lot of time? A. Yes. Q. You would agree they were core things, that were part of your role during your employment? A. They are part of my role but I was noticing that we were having to educate more and more children that had additional needs. When I say additional needs I mean children who might come in with autistic tendencies or might have ADHD. That requires a totally different programme to your other group of children. And that takes tame to actually plan because they have a separate programme. There's a lot of referrals that you've got to write for these children, for doctors and physiotherapists and you having a lot more meetings with parents. Those things take time which aren't accounted for in your preparation time from your employer. It was done in your own time and you tried to fit it in and that is probably what I mean about things like that taking more time. It was above what I was already doing for the children I was programmed for. Q. You say there you moved from the early childhood teaching director because of the increased workload and the increased documentation? A. Yes, I was finding that from 2004 the last two years, three of what I was doing as a preschool teacher I was finding it was becoming more stressful and a lot more involved. It was requiring a totally different skill set in my opinion because you were having to do a lot more digital documentation, keeping all your developmental records up to date. Every child had a developmental record that had to be kept up to date and I being the teacher in charge or authorised supervisor was responsible for checking that it was all done as well as doing it as well because I was a teaching director. Q. You don't say this in your evidence in paragraph 16 do you, you say the reason was because of the increased workload and increased documentation, you don't say different skills and you don't say it's more complicated there? A. Yes but the different skill sets does require more time for them. I think in one of my statements you either sink or swim. If you don't have that skill set you have to go and participate in extra training to bring yourself up to date with it. That takes time as well, you don't get paid to attend all these courses. … There was a marked increase in children with additional needs which were not necessarily learning difficulties or developmental delays. I found as an early childhood teacher I had to take myself off to do a course on administering an epi-pen because we are finding a lot more children are coming in with nut allergies and anaphylaxis or children with asthma so staff are required to have training to deal with situations like that. Not only that, you're managing children's allergy charts as well because it's got to be up to date and displayed so staff are aware. You have casual staff come into the centre for that day; you've got to make sure they're aware as well so you're also managing their allergies on a day to day basis. If you're doing cooking activities you've got to be aware that this particular child has this allergy. Many more children had special dietary needs then previously. These are the issues that I do not have to deal with anymore. 109 Ms Simon explained her experience in dealing with increased needs from students: The last five years have seen an increase in the number of children with additional needs enrolling in our service, the amount of time required to apply for limited support funds for these children, training of staff to support these children, to attend team meetings with other agencies involved with the children and their families, to develop Individual Education Plans (IEP's), follow up meetings, evaluations for funding bodies, continuation of funding forms each term etc equates to on average at least 1 hour per week per term. Currently at my service we have 4 children per week that have funded additional needs. One of these children requires 1 on 1 attendance to manage his diabetes and insulin each day and for the two days that he attends I manage his health needs throughout the day so as not to pull staff off the floor and away from the other children. The time commitment for this individual child averages at least half an hour per day. This is just one example of the additional time and responsibility required for additional needs children. 110 Much of the IEU's evidence went to the general work value changes for teachers in the early childhood sector. However, the applicant Union adduced evidence from teachers for whom some specific and unique changes had arisen. Ms Jacobsen, director and teacher at Coolah Preschool, gave examples of her varied roles in her community: Teaching, itself, is not just a frivolous thing. I have to manage staff, work closely with all children, including developmental records and digital records of each child's learning journey and progression, working with many more special needs children and their families, as well as working with other specialists, including speech pathologists, occupational therapists, and early intervention staff for the benefit of those children who require this help. I need to constantly update my knowledge. This involves more inservicing and training. For me this means a minimum of a 300 kilometre round trip to Dubbo, (or, on the rare occasion that there is an inservice in Mudgee, a 230 kilometre round trip). This is on top of many STD phone calls, emails and frustration even trying to get these services in Coolah and proving to their relevant departments that there is a need for this service in our rural area (i.e. Coolah). For example, a visit from a speech pathologist is every 6 weeks. I am the back up speech pathologist between visits. Not all families are able to (for various reasons, including financially and geographically) travel the 230 km round trip to Mudgee to see a speech pathologist, or the 300km round trip to Dubbo to see an Occupational Therapist. It is expected that I assist these families as best I can. Increased client expectations 111 The Union adduced evidence from all of its witnesses regarding the greater expectations placed on early childhood teachers and their increased client needs. The evidence went to two main areas: first, the increased expectations placed on teachers by parents and members of the community; and, secondly, the greater involvement and support required of teachers in the everyday lives of their students' families. 112 Ms Connell described these pressures as adding to the workload of teachers: It is a requirement that parents are welcomed more into preschools and are encouraged to take a more active role in their child's education. They are requiring and expecting more information to be passed on about their children both formally and informally. As a teacher this adds to the workload. 113 Ms Connell also described the parents' expectations in preparing their children for school and the increased workload in this respect: As parents have become more informed about the importance of early education they are more demanding of information and as the Director there is an expectation to run evenings on school readiness and other relevant topics. Planning meetings, presentation, finding speakers, panels usually takes place after hours. As a teacher I am increasingly required to speak to parents privately on topics such as school readiness, behaviour, nutrition, literacy, numeracy, choosing schools, sibling rivalry, separation, divorce, abuse etc. etc. etc. There is a requirement for me as a teacher and a Director for me to keep abreast with new research and educational practice. While this has always been part of our program we now find that we spend more time with parents on an individual basis explaining the best time for starting school and talking about their child's development. As current research proves that Early Childhood is the most important time for a child's learning, parents are becoming more aware of the issues involved in school readiness and the importance of Early Childhood education, and they are asking more questions about programs and the importance of play based curriculums. Parents are also more anxious about their child's development and feel that their child should reach certain developmental milestones before school. As we are often their first Early Childhood experience we must ensure they understand what is best practice and that their child is receiving a quality Early Childhood experience. 114 Ms Jacobsen described the general changes in attitudes by the community: The community expect a lot more of teachers, including being able to do all sorts of managerial and administrative skills and tasks: including being an IT expert, working on and writing budgets, business plans, writing grant applications after sourcing them from all sorts of different places which in itself takes a lot of time to research, being computer literate and savvy to a high standard, and expecting to be trained and run a business efficiently and effectively without cutting any corners on funding that was the standard 20 years ago. And on top of all this, teach the children within our care and produce a high quality standard early childhood education program and work with the families, the community and any other experts or professionals that may be involved in the provision of service to the children and also our service. 115 Ms Simon's evidence summarised the increased expectations placed on teachers by their clients: Our clients are changing; they are informed and have very clear expectations and beliefs in relation to what they think they are looking for. It is rare now for a family to accept a Preschool position sight unseen. Most families visit many Preschools prior to making a decision and tours of the centre conducted by me can take anywhere from half and hour to an hour, depending upon the needs of the family and the information that they require. In any week we can average 3 or 4 families drop in off the street that would like to have a tour of the preschool and time to ask questions etc. These tours are a very important marketing tool, however they remove me from primary role as director. Our clients are also expecting more time of individual teachers for consultation, thus requiring teachers to be released from the floor or to hold these appointments in their own time. In an effort to minimize the cost to the service I cover all staff when they come off the floor, thus reducing time available in my workday. 116 When cross examined on her evidence, Ms Simon gave examples of the daily expectations placed on teachers and directors: Q. [Y]ou say that it is rare now for a family to accept a preschool position sight unseen? A. Very rare. Q. I suggest to you that's always been the case? A. No, it's not always been the case. People would put their children's names on the waiting list and say that's our local preschool, that's where we'll go. Just like they used to do with local schools. Now, parents go and visit. Just yesterday for example a mother walked into the door at five to three on pick up, at ten past four I said to her I really need to go and pick up my children. I showed her around the preschool, I explained the programme, she looked at the documentation, she asked very, very details questions about our programme and we were the third preschool yesterday she had visited in the area and that was yesterday, one day. Q. Your evidence is that parents would just simply ring up and place their child in the preschool without having seen it? A. No, they will - with our preschool they might put their name on the waiting list via new our web site but they will always come and have a look before they accept a place. Q. I am talking about in the past, that was also the case that parents? A. In the past they used to put their name on the waiting list, you would offer them a spot and generally they would come and look at it when they accepted their spot. Now, they look at it before they accept a spot, before they put any money down, before they make a commitment. 117 Ms James gave evidence of the increased special needs of children and its impact on her work: Early childhood teachers tell me they have experienced significant increases in the number of enrolments of children with additional needs, particularly autism and language delay. As a Special Needs Teacher at Lorikeet Child Care Centre (SESIAHS), I was responsible for writing detailed reports of children's development, writing and evaluating Individual Education Programs, meeting with specialists including paediatricians, psychologists and speech therapists, carrying out specialist-designed programs between sessions (speech therapy programs, Applied Behaviour Analysis programs), assisting by providing written information and securing the cooperation of children during formal diagnostic assessments, educating parents on how to support their children's learning and development, feeding a child through a Percutaneous Endoscopic Gastrostomy (PEG) tube, writing Health Care and Treatment Plans and distributing these and training staff in regards to these procedures. I wrote developmental summaries prior to six-monthly meetings with primary caregivers, organised visits by Inclusion Support Facilitators and filled in funding applications, made referrals to external agencies, speech therapists and physiotherapists), developed educational plans for children to be carried out by primary contact staff, updated centre policies including Behaviour Management and Special Needs, maintained staff resources on Special Needs and set up displays to promote inclusion. Upon the commencement of my employment in 2002 I was responsible for three children with special needs and this increased each year to a total of twelve in 2006. 118 Ms Fanning gave evidence about her experience with increased client expectations and, in particular, the demand for school readiness programs: Parents were requiring far more of me as a teacher and director then they had previously. They have higher expectations now. In the past, parents' view of children attending preschool was that they were here to play and to make friends. Parents want their child to do well academically and they feel that if they don't have the foundations in preschool it kind of puts them behind the 8 ball when they start school. So they are very involved in the whole process of wanting to look at their child's portfolio, the developmental profiles, they want to know how their child's going, how they can support their child academically. You often have questions like, 'can I get him into tutoring classes' and you feel like saying to the parent "for god's sake he is not doing his HSC yet". Parents want to have constant feedback from you. There is an increase in the demand for school readiness programs. There is the pressure on you as a preschool teacher to participate in that as well because you feel as though you need to do it because everyone else is doing it and the parents expect you to do it. In order to provide a service to your customers you feel like you should be doing it, even though teachers in schools do not use the reports that we send with the child. Years ago parents would be happy if their child just made friends or could even write their name and could cut with scissors but now there are greater expectations. Parents are not just happy for the child to just come to preschool and just play with other children. Now they feel if they're paying for a particular service they want to get their money's worth and with that comes all the reports and constant feed back and all the diagnosing which they expected me to do because I think there is some kind of comeback if the child goes to school and the teacher picks up that they couldn't write their name properly. It always goes back to the preschool teacher so there's all that pressure as well. 119 Several of the Union's witnesses described their increased and more varied involvement in different aspects of the lives of their students' families. The IEU submitted that this involvement extended to issues such as family law disputes and assisting in family counselling. 120 Ms Simon gave evidence of her increased involvement in the lives of her students, especially with respect to the legal issues affecting them: Over the last five years I have also noticed an increasing number of family breakdowns in families in our centre. This has added another element to my role as Director that I have not had to deal with on a regular basis before - families and children in distress, court orders, family court documents. Who is the client? The enrolling parent or both parents or the child? Does a parent that does not have access to a child on the days it is at Preschool have the right to information on their child? Currently we have a child of divorced parents in a custody battle enrolled that has two separate teams of speech therapists, psychologists etc, plus a legal team on both sides and reports requested from both teams for court. An extreme case but not isolated as I am increasingly juggling the demands of families in crisis that are time consuming and challenging. 121 Ms Simon was cross-examined on her evidence: Q. I suggest to you that dealing with such situations, family breakdowns is not something new? A. It's not new, no it's not but it's increasing. And I've noticed in the last three years that the family breakdown is happening earlier. It tended to happen when the children got into primary school; or when they've had their second or third child, they're in preschool, they're under stress for whatever reason and I've never had to deal with families in family court up until it started last year where I've two, I have a couple of families at the moment where there are two parties vying for their children. And I have to deal with it, I have to deal with both sides of their family law battle and I have never had to do that before and it's not just one or two families, it's happening more often now. Q. It has always been in your role and responsibility dealing with parents? A. Yes but as a teacher and director, not dealing with their solicitors and who has custody of the child on this day and therefore can I talk to that parent. Yes it is changing and that's what I'm trying to help you understand. Normally family breakdowns weren't occurring as early and we are seeing more and more of it, more families in distress, more mothers without support coming in and looking at us for support way outside the role of what I used to do as the role of a director. Most of my role as a director outside of admin is almost family counselling which I think is not really our job but that's what parents and clients are asking for. 122 Ms Jacobsen described her experience of assisting families facing hardship in rural areas, and the increased workload arising from her desire to support such families: The drought has been a major factor on our families. Not only are these families facing a battle with the economy and the weather and all the implications placed upon them with their agricultural work, but many are also facing another battle – a silent battle, and one that is prominent in our community: depression and mental illness caused by the stresses of 'life'. They are in the 8th year of drought, and the battle faced by them is getting more and more difficult each day. Many families are no longer working on farm – they still live there, but have found employment elsewhere. Many of the dads are working in different industries, including the mining industry, or working further and further away from home to get work (i.e. shearing). This involves many kilometres travel and many nights / weeks away from home and their families. This puts families under stress and this is reflected in the children attending the centre. We have extended our hours of operation, 8.20 – 4.00pm rather then 8.30 to 3.30 or 9 to 3pm so as to accommodate working parents and also bus children, with children arriving from 8.30am and the last bus coming 3.35pm. This has meant that the hours staff work with children has also increased. We have 6 buses which children attend preschool on, and without this vital community service we would have a minimum of 60% less enrolments. There are even children attending preschool who leave home 6.45am to catch the bus at 7am. They are home around 4.30pm each afternoon. That is a big day for any young child, let alone a 3, 4 or 5 year old. Parents therefore do not participate as much in their children's time in preschool. For children it is frequently the first time that they have been away from their families. I have to ensure that these children are well settled before we commence our program. This is additional workload for me as compared to children whose parents attended regularly when the children are newly enrolled. Increased regulatory and administrative work 123 There was evidence from the IEU concerning the increased workload placed on teachers and directors resulting from greater regulation in the industry and higher volume and more varied administrative work. These duties included, for example: the reporting to and communicating with DoCs in relation to funding; understanding, implementing, and communicating to workers the impact of the relevant Occupational Health and Safety regulations, child protection regulations, the Children's Services Regulations, the accreditation scheme; the administrative duties arising out of increased teaching regime; and increased expectations from clients and their families. The 2004 regulatory changes were outlined in Ms Heron's evidence. 124 Ms Press outlined the administrative duties required of teachers: In addition, teachers in early childhood programmes frequently have to assume daily management responsibilities within the service. Under the Children's Services Regulation 2004 a teacher can be employed as the Authorised Supervisor of the service. This is common practice for services licensed for 30 children and over. Clause 56 (1) of the Regulation states that: the authorised supervisor for the service has the overall supervision of the provision of the service. Further, clause 64 (2) states that: the authorised supervisor of a children's service must ensure that there is provided a program of activities that: (a) balances indoor and outdoor experiences, and (b) stimulates and develops each child's social, physical, emotional, cognitive, language and creative potential, and (c) is appropriate to the individual needs and development level of each child, and (d) is capable of engaging the interest of children, and (e) allows children to freely select experiences, and (f) is appropriate to the development of children. Whilst teachers within school classrooms are responsible for the teaching within their classroom, the teacher who is an Authorised Supervisor within a service, must provide overall leadership and ensure that the early childhood programme as a whole meets administrative, regulatory and curricula requirements. Teachers within the school system receive a much greater level of systemic support, have much less administrative responsibility, and do not have to assume a leadership role with other lesser trained staff. In addition, they work shorter hours and for fewer weeks in the year. The inequity in pay between the school sector and teachers in the non-school sector is a serious anomaly that must be addressed. 125 Ms Cheeseman gave the following evidence in relation to what she considered to be the onerous administrative duties placed on teachers: Teachers in the prior to school sector also have substantial and more complex management and administrative loads than do their school teacher counterparts. Their workloads often involve accountabilities under licensing and accreditation of services, collecting and storing information about children's background and health information, formal documentation of complaints and investigations, responsibilities for reporting and documenting incidents of suspected child abuse along with Head of Agency responsibilities under the NSW Ombudsman legislation. In addition early childhood teachers are required to ensure the safety and maintenance of buildings and equipment, collection and handling of fees and the production of communication systems including health alerts, fee reminders and newsletters. Within school settings many of these roles are undertaken by dedicated administrative staff under the supervision of a senior salaried officer. There is limited recognition of these comparatively more complex roles and responsibilities in the current pay scales of teachers or teacher/directors in prior to school settings. 126 Ms Jacobsen spoke of the impact that administrative tasks have had on her role as a teacher and director: I find that more and more precious teaching time is being spent in the office (a room away from the playroom) in front of a computer. I am required to read emails, find information/forms on the internet, from DOCS, Early childhood groups, source grants and also information and knowledge from other groups in our sector, including newsletters from peak early childhood groups which need to be read, and many other work related emails, including messages from the management committee and also some parents. Computers/technology are beginning to dictate our work hours whereas our priority should be the children within my care. A lot of administrative tasks used to be undertaken by the committee, however it is a big ask of a volunteer parent, who usually is not 'trained' in the area of running a business with various partners on funding that was dated 20 years ago, and are not up to speed on such things as DOCS forever changing forms, licensing, funding agreements, etc and as they only hold the position for a twelve month period by the time the Director/staff have 'trained' the committee about this and the committee have done their own research and taken on an understanding of what is involved, it is time for a new committee, and the Director/staff have to start all over again and retrain another group of volunteer parents. Therefore many of the tasks once undertaken by the Committee are now done by me as Director. 127 Ms Fanning described the administrative tasks performed in her role as an early childhood teacher: Since 2004 one of the major changes for teacher and teacher/directors was the amount of documentation that was required as a teacher but also as a director and teacher in charge. In fact that was probably the catalyst that led to me leaving the industry. The amount of administration tasks increased because we were always applying for funding, filling out reports, referrals, going over all the assessments there was just a lot of documentation involved with that and we weren't allocated a great deal of administration time so a lot of the time the onus was on me to stay back after work or to take it all home, as well as doing all my programming and planning. I was allocated one or two hours to do these tasks, however, every teacher knows that this is not enough, it's not sufficient, I was always trying to squeeze time in here and there; whenever you can to get the job done. Generally it was staying after work and doing it then, otherwise it didn't get done, or taking it home with you. 128 Ms James described issues she had encountered and enquired about in her visits to various centres. She explained: I… spoke to director Jenny and early childhood teachers Jenny, Kogi and Jill. Jenny told me "Expectations are getting higher and higher and I work longer hours outside of face-to-face teaching – six hours more paperwork a week than three years ago – with portfolios, record-keeping changes, making learning visible and all that. There are higher expectations of paperwork and the program and evaluations. You make visuals to support children with additional needs etc. Meeting the needs of young children and so many families facing difficulties (marriage breakdown, financial stress)… Parents all want to know what their children do each day". Jenny added "Parental expectations have increased, parents are better-educated in what they want and we are much more accountable to parents now. You have to be a support person for parents too – tell them about other services (speech therapy for example), counselling them – there are many families in need, emotional need – marriage breakdowns, those with children who have additional needs, stress etc. We now offer extended hours care and we used to have five children take it up but now we have 15 to 18 every day. We used to try to do some paperwork before the children arrived but you can't do that with 18 children in the room. It impacts on time for setting up too. Paperwork for OH&S and accident reports has increased – you put a bandaid on a child and you have to record it – everything has to be documented. There are more children with anaphylaxis and other food allergies. More than 10% of our children have additional needs and require an Individual Education Plan (IEP), you have to research different conditions, parents need more support, you need to do more detailed report writing, attend meetings with families and specialists, apply for special funding and even when the director does much of this of course the other staff are always involved. These children need more time, energy, patience and 1:1 support. It is a struggle and a burden trying to secure SCAN and DEET funding. Budgeting for the centre is more complex – PIRP funding has not been matched to CPI for three years but costs go up. Enrolments are a lengthy and arduous process. You have to give priority to four year olds so you have to call and wait for responses from 200 parents of four year olds before you can start enrolling three year olds. We used to be able to fill up our spaces with the first 60 families that responded but now we can't do that. It's also led to many services offering one day places, which is not good for the children and it means an extra 20 portfolios per week per teacher. A lot of the job as a director is now marketing the service – updating the website, brochure design and printing, leaflet drops etc. Teachers need computer skills for digital documentation, making slideshows, DVDs, digital photos etc but where do they get the training and support?" 129 Ms Simon explained the effect changes to the DoCs structure had on her role as director and teacher: Changes to DoCS funding has meant that we must change our structure and work to attract more families to the preschool across the week. The DoCS model proposes more "bums on seats", flexible enrolments, but does not allocate more resources to attract additional children and to organize new models. To fully understand the Preschool Investment and Reform Programme I have had to attend numerous, forums and meetings in and out of work time at various venues in the Sydney CBD. The hours required take me away from my service and family and all the time lost has to be made up in my own time. Additional time has also been required to educate and inform the management committee, parents and staff as the implications of the funding changes for our service are enormous and have caused a great deal of angst as we redevelop programme models, budgets, business plans and marketing strategies in an attempt to prepare for funding model changes. In addition, more children across a week in flexible enrolment patterns leads to more children's records to complete, administration, families to liaise with and at times additional staff to manage etc, all necessary yet time consuming. We are changing our enrolment patterns constantly to meet the needs of our clients whilst still providing a quality educational programme. 130 Ms Simon further explained the changes to the technological framework in which she works as a director and teacher: Five years ago we were grappling with the use of technology in our administration and programme development as a service. In the last five years the following has occurred in our service in relation to technology, each has taken time to learn, develop and train staff and families to use. Development of an interactive website add new information, newsletters, photo's etc to each week. I worked with the developer to build the site and then trained staff to be able to access it and add content to it as required…. Funding submissions to DoCS, DET ISP etc are now completed online requiring access to a computer to complete them. Email is becoming the preferred form of communication for the majority of our families. At the start if each day and regularly throughout the day either myself or our clerical assistant need to check the preschool email and my email to ensure that we do not miss any messages from parents re their children. Newsletters, notes, invoices etc are being emailed to families; however this has created another level of work as I need to ensure that families receive the communication by checking that email addresses have not changed, checking that they are accessing their email, responding when required. Most professional organizations, training institutions, committee members etc are communicating almost exclusively by email. Whilst this is positive in so many ways it requires constant monitoring. Other staff other than the clerical assistant is unable to aid in this area as 1) they cannot leave the floor to access the technology and 2) due to the confidential nature of the many of the emails it is inappropriate to allow other staff to take on this responsibility. Our clerical assistant cannot be responsible for many of the computerized tasks as they fall outside her area of expertise in relation to Early Childhood and education in general. Five years ago in our service technology was being used very minimally in the programming and documentation other than printing of photos occasionally and word processing. Nowadays it is used for the development of the children's portfolios, developmental records, daily diaries, journals and photographs etc. I have been responsible for ensuring that we have the appropriate hardware required for the office/administrative tasks and for the staff to use to develop their programmes and children's records. Additionally I have been responsible for training and facilitating the development of the skills required by the staff to be able to use the technology to the best of their ability. AFEI's case 131 AFEI submitted that the IEU had not: (i) separated out those changes which have occurred to the nature of the work, skill and responsibility of employees or to the environment in which the employees work and which have not previously been the subject of compensation…; (ii) identified, on an objective assessment basis, whether any changes that have occurred amount to such a significant net addition to work requirements as to warrant the creation of a new classification or upgrading to a higher classification from the datum point of January 2006; (iii) … identified or cross-referenced what changes were accounted for from the datum point or how any change is to be measured from the datum point, ie having regard to the work value increases taken into account as part of the 2006 decision. In essence, the IEU have failed to ensure that the competing obligations under Principle 6(a), (e), (f), (i) and (j) are appropriately reconciled; and (iv) are not able to satisfy the Commission that the evidence they have brought, attempting to engage the work value principle, whilst voluminous, actually satisfies the strict test under Principle 6(a). … Additionally, AFEI submits that notwithstanding the case of Employers First v NSW/ACT Independent Education Union (2002) 115 IR 8 (at 11, [8]), it is open to the Commission to have specific regard to the requirements of the work value principle and it should do so in respect of these IEU applications (see, for example, Re Crown Employees (Teachers in Schools and TAFE and Related Employees) Salaries and Conditions Award (2004) 133 IR 254 (Re Crown Employees 2004) at [30] - [32] and [86] - [96]). 132 The AFEI made the following submissions regarding the IEU's claim that the work value has changed since the 2001 decision of Schmidt J: REGULATIONS According to Mr Alchin, the child care industry has always been heavily regulated. Hence, whilst the Children's Services Regulation 2004 (the Regulations) came into effect on 30 September 2004, they simply replaced the former Centre Based and Mobile Child Care Services Regulation (No 2) 1996 and the Family Day Care and Home Based Child Care Regulation 1996 . On the issue of Regulations, AFEI also relies upon paragraphs 17 to 23 of Mr Alchin's statement, and paragraphs 40 to 49 of Ms Skoulogenis' statement. THE 2001 DECISION, THE 2006 SETTLEMENT AND PREVIOUS WORK VALUE CONSIDERATIONS In relation to nearly all of the IEU claims as to work value, as it is assessed on a global basis, AFEI refers to: The matters advanced by the IEU as part of the 2001 proceedings…; The matters settled as part of the 2006 decision…. OH&S In relation to the IEU's submissions and evidence concerning increased responsibilities relating to occupational health and safety matters, AFEI relies upon the conclusions set out by the Full Bench in Re Crown Employees 2004 at [324], which reads: We acknowledge that the introduction of new [OH&S] legislation may have increased the responsibility of teachers and we accept that risk management may be a new dimension in the work life of many teachers. However, we agree with the Full Bench in the Public Hospital Nurses case that there are compelling public policy reasons why increased responsibilities relating to occupational health and safety do not warrant any wage adjustment as part of a work value assessment and we do not consider that the added responsibilities are of such a nature as to represent a significant net addition to work requirements. Evidence of Mr Alchin 133 AFEI presented evidence from Mr Ian Alchin. Mr Alchin holds a Master of Commerce in Employment Relations and a Bachelor of Education, having worked in the early childhood sector for 28 years. Mr Alchin has lectured on a casual basis at Macquarie University, presenting courses as part of the University's continuing education programme. 134 Mr Alchin held the position of executive director of Children First Inc. (formerly Blacktown Kindergarten Association Inc.) during the period October 1990 to August 2008. His role as executive director included the following duties and responsibilities: Management and administration of all services Human resource management Finance- budgets, reporting and control Organisation Development Governance and reporting Licensing and operation Promotion and marketing Curriculum development and implementation 135 Throughout the period of August 2008 to May 2009, Mr Alchin was the Manager of Children's Services Community Management Ltd, which operates three small regional preschools and a long day care centre in the Hunter Region. 136 Mr Alchin is currently the Professional Services Development Officer of Community Connections Solutions Australia Inc (formally named 'Country Children's Services Ass Inc', 'CCSA'). Mr Alchin described the nature of the organisation as follows: CCSA is a not for profit peak organisation that was established in 1969. CCSA provides a range of support services for early childhood services in New South Wales including: - integrated management support through a telephone information service, online resource manual and regular newsletters including assistance on all aspects relating to management, administration and licensing/regulations; - payroll and bookkeeping services; - training in service management and governance; and - advocacy to achieve better outcomes for children. CCSA currently provides support to around 600 early childhood services. CCSA is one of the largest peak organisations for children's services in New South Wales. Its membership represents the full range of service types including preschools, long day care, occasional care, multipurpose centres, mobiles, family day care, out of school hours care, early intervention and outreach services. While CCSA's primary constituency continues to be community-based services in rural and regional New South Wales, there are also a number of metropolitan and private services that belong to the organisation because of the specialised management support that CCSA provides. In my role as Professional Services Development Officer with CCSA, I have the following duties and responsibilities: Advocacy and Representation … Consultancies … Training … Member Support … Regulations 137 AFEI submitted that the regulatory framework of the early childhood sector has not substantially changed in recent years. Mr Alchin stated the following in relation to IEU's claim of work value changes being increased since the inception of the 2004 regulation: The child care industry has always been heavily regulated. Hence, whilst the Children's Services Regulation 2004 (the Regulations) came into effect on 30 September 2004, they replaced the former Centre Based and Mobile Child Care Services Regulation (No 2) 1996 and the Family Day Care and Home Based Child Care Regulation 1996 . Mr Alchin referred to a memorandum released by DoCs in September 2004. The document outlined the major changes to be introduced by the 2004 Regulation. Consistent with both parties' evidence, the document highlighted that introduction of some different regulations and the continuation of others. 138 Mr Alchin gave the following evidence in response to the IEU's evidence regarding the regulatory changes in the industry: … I have some concerns regarding the broad assertion that the regulatory changes have generally meant a significant change, including increased paperwork, working hours and workloads for teachers. Specifically, I say that the Regulations: provide minimum standards; reflect new information concerning day to day practices and normal working environments; address inconsistencies in the former regulations; seek to improve clarity of tasks and obligations; and attempt to improve compliance and outcomes for children. Most of the changes to the Regulations are the responsibilities and/or duties of licensees, not teachers. The difference between roles and responsibilities should be noted. The Licensee is the Committee, Board or owner. A Director is the on-site manager who may or may not be teacher trained. An Authorised Supervisor must be qualified but may be a teacher or hold a Diploma. The degree to which responsibilities might be delegated to a Director can be significantly different in different operating structures, i.e. preschools, long day care, not-for-profit, and commercial. 139 Mr Alchin referred to the statement of Ms Heron and dealt with each of the policies under the 2004 Regulation. His essential point was that the policies and procedures had always been a part of the teacher's responsibility. For example: Paragraphs 14 to 15 – policies under the Regulations - the Regulations require that the licensee ensure that relevant policies are in place. Notwithstanding the Regulations, many of the requisite policies and procedures are simply outcomes from the ordinary manner in which business is conducted. It would not be uncommon for many of these policies to already be in place and thus cannot be said to create extra work. Rather, policies are part of the day to day work and/or the normal professional responsibility of teachers (i.e. to keep up to date with changes and developments in education, children's development and the regulatory framework). Further, whilst employees may well drive policy review and implementation (as they always have); this can reasonably be expected from their role as education professionals in developing curriculum and good practice. The need for their continued development is specifically referred to in the award. In relation to policies generally under the Regulations, I say: policies have been required for many years in early childhood. Historically what policies have been required has not always been clear and led to concerns from operators, staff and DOCS' officers; specifying policies within the Regulations makes it clear what the minimum requirement is and therefore assists service delivery and outcomes; and it would not have been unusual for the number of policies within a centre to have been more than that prescribed by the Regulations (before their introduction) as this is simply necessary for normal operation and practice. Paragraphs 22 – supervision of children in toilet/washing areas - there has always been a requirement for effective supervision of children. This regulatory change does not change the nature of this supervision, it simply gives better direction for this particular area. In general, many regulatory changes are in response to poor practices exhibited in some services in the past. Introducing better practices should not be construed as extra or more difficult work. Rather it should be viewed as requiring the minimum standard that should reasonably have been expected as a normal event and expectation of any employee within the sector. … 140 Mr Boyce adduced further evidence from Mr Alchin in chief: Q. Mr Alchin, in Ms Connell's reply statement, paragraphs 5 and 6, she sets out there a number of policies that she's introduced in relation to the evacuation. You have made some statements in your evidence previously about policies. Have you got any comment on what she refers to there as far as the policies that she's got at her centre? A. Yes, I have recollected it in my statement. I was essentially saying that listing the policies in the regulations did not necessarily mean there was going to be more policies at a centre. In fact, if a centre was going to operate effectively they needed to have most of those, if not more, policies to operate effectively. And I think paragraphs 5 and 6 of her statement are essentially agreeing with that view that this centre as a broad is required in the regulations, which is what I was suggesting, that having the regulations has made things clearer rather than adding to the number of policies already in some centres. The other thing I note from this is, that my experience perhaps in other centres is that they would have one evacuation policy and within that look at the different reasons, the different areas of evacuations rather than having all these different evacuation policies. So we have one evacuation policy and deal with some of the different instances within it. 141 Mr Kimber cross-examined Mr Alchin on his evidence: Q. In paragraph 22 you talk about the involvement of the responsibility or duties of licensees and not teachers. Just so we don't spend too much time on it, when you talk about responsibility of the licensee (not teachers), you are referring, are you not, to the ultimate legal responsibility under the regulation, the responsibility for ensuring that outcome is delivered? A. Yes, that's right. Q. What I want to suggest, whilst that might well be so as a matter of law, that in terms of who gets to do the work or lion share of the work to ensure regulations are complied with, that ordinarily or usually, that would have fallen to the senior staff at the centre, correct? A. Certainly the day to day responsibility falls to the authorised supervisor. And in the example that you're giving where that centre is 30 or more, it is likely that the authorised supervisor is the director and is teacher trained. In that circumstance, yes, there are day to day requirements for that director to meet those responsibilities. Q. Then in paragraph 23 you are dealing with the question of policies, and in responding to Ms Heron's statement do you say, almost halfway down the page: "Further, whilst places may well drive policy review and implementation, it can reasonably be expected from their role as education professionals in developing curriculum and good practice." … Q. What you're really pointing to there, in so far as talking about educational type policies, that is part and parcel of their job as a teacher, correct, that you expect them to do that as part of their role? A. Certainly not just education but, you know, operational policies as well because they're in that centre operating day to day. Accreditation process 142 Mr Alchin gave the following evidence in relation to the IEU's submissions that the accreditation process has evolved in recent years: Accreditation existed prior to these Regulations. Changes to accreditation have meant that there has been a reduction in the number of principles from 52 to 33 by which a service is assessed. The National Childcare Accreditation Council administers the process. The manuals provide a comprehensive guide to being successful, to the point where they outline in detail what a service should be demonstrating to be highly accredited. The expected outcomes are clear from the beginning. Implementation issues in relation to accreditation have not changed significantly. If anything, more resources have been developed to support services, including via web site (refer http://www.ncac.gov.au/ ) which includes draft electronic policies and other resources, phone support, regular newsletters and fact sheets and on site training. These are either additional or improved from what has previously been available. NSW Curriculum Framework 143 Mr Alchin explained his understanding of the NSW Curriculum Framework: The NSW Curriculum Framework (the framework) referred to by Ms Heron is a broad policy document that: clarifies good practice and outcomes for children; provides additional information to guide practice that reflects current knowledge and research; provides more certainty and clarity for the operation of services and experiences for children; suggests methods and strategies without prescribing them; focuses upon relationships with documentation supporting quality interactions; and seeks that record keeping hold educational and developmental value, as opposed to volume of information. The framework is a guide only. Whilst it addresses the issue of transitions, including "transition to school" , it does not create additional or more complex work for employees. It suggests altering the curriculum and practices to include this aspect if this is not already part of the programme provided. In other words, the framework provides a foundation for those services not reflecting current knowledge in the sector. A successful start to more formal schooling has always been a consideration in the development of programs implemented at both preschools and long day care centres. Long day care and preschools in NSW have always been required to provide a program which meets the educational and developmental needs of the child. Transition to school is an integral part of this program though our understanding of how we might support this process better has changed. This change however, does not necessarily create more work nor make work more difficult. Prior to the release of the curriculum framework teachers, and early childhood staff more generally, had little or no direction in regard to curriculum development. This placed a considerable responsibility upon teachers and did not ensure a foundation of support, or any surety for children in regard to the outcomes from the programmes with which they engaged. The framework, if adopted by a centre, provides a sound foundation for early childhood staff, but also provides flexibility by not prescribing how they might meet the desired outcomes. Changes in curriculum and teaching practices need to change in response to new information about children's learning and development. The award recognises teacher's knowledge and skill develops over time in the step pay increases it provides and specifically refers to the need for continued professional development in recognition of this. Additional needs children 144 Mr Alchin gave evidence regarding the IEU's claim that additional needs children have impacted the work value of teachers and directors: I refer to the statement of Verena… where it suggests that funding under the Support for Children with Additional Needs (SCAN) programme has been reduced. The introduction of SCAN moved away from the existing funding arrangement for preschools where a set amount of money was provided to some preschools but not on the basis of a number of identified children with additional needs being enrolled. Funding changed to preschools identifying additional needs children at their centre and determining the level of assistance required for that child to be included in the programme. That is, the funding shifted to the child, rather than the preschool. Some preschools received fewer funds as they had fewer children attending. The SCAN guidelines have 4 levels. Levels 3 (medium) & 4 (high support) specifically acknowledge the need for additional adult assistance with level 4 outlining 'such as constant one-on-one adult support or supervision' and provide funds to support this outcome. The funding in some regions may not support trained staff being employed, however good practice regarding inclusion of additional needs children indicates it is the permanent staff that should be assisting these children as they have the best knowledge of the child and the ability to provide the most assistance. Both the SCAN programme and its federally funded equivalent provide support for early childhood staff by experienced early childhood professionals in regards to inclusion. This may be over the phone, visits to centres or information contained in newsletters. They will also assist by connecting staff with other agencies that may be able to assist. 145 Mr Alchin gave further evidence in chief regarding additional needs children: Q. Just finally, Ms Heron gave some evidence about special needs children and the obligation on a centre to take those children on. Can you tell the Commission your knowledge and experience in relation to the taking on of special needs children in early childhood centres? A. Certainly. There is a commitment in the not for profit sector, that I'm aware of, to the enrolments and inclusion of additional needs children, but there's no requirement. There's no regulated requirement upon services to accept children with additional needs. Certainly I'm aware of situations where people from within DoCS that have suggested to services that where we have already quite a number of additional needs children and they're struggling to resource those children effectively, then they have the capacity to not enrol any more additional needs children. But I'm aware that the information that has come out from DoCS, quite rightly, that says where a service declines to enrol a child for that or other reasons, they need to be very clear about what the reasons are that they will decline that enrolment, and the suggestion is that that should be documented. But certainly there's no requirement to enrol additional needs children. Role of licensees 146 Mr Alchin described the role of licensees vis a vis teachers: Most of the changes to the Regulations are the responsibilities and/or duties of licensees, not teachers. The difference between roles and responsibilities should be noted. The Licensee is the Committee, Board or owner. A Director is the on-site manager who may or may not be teacher trained. An Authorised Supervisor must be qualified but may be a teacher or hold a Diploma. The degree to which responsibilities might be delegated to a Director can be significantly different in different operating structures, i.e. preschools, long day care, not-for-profit, and commercial. 147 Mr Alchin further explained his position regarding management committees in his oral evidence in chief: Q. Just take you to paragraph 4 of that statement. It is exhibit 5 your Honours and the Commission. Paragraph 4 of that statement, have you got anything to say or reply in relation to Miss Cole's comment there? A. Yes I do. I find the content of that paragraph to be incorrect but very disappointing.… The description of management committees in my opinion is not a description across the community based sector. May well be her experience. That there are many competent and capable people who are on management committees and the management committees themselves being quite component. As an organisation because we are providing support to management committees and directors regarding management of centres, we speak often to people on management committees who are seeking the knowledge and information they need to do their job properly. And that is probably an example and a common example of the desire of these people to do a good job on behalf of the children and the community of those services. There is an intent I believe most management committees and individuals on them to have knowledge and understanding of what their role is. And that's certainly what we do as an organisation and we support that role. It is certainly incorrect to say that the regulations are too complex. The regulations are there to be read, it may take some time to understand certain parts of the regulations but many people do it. And if you look at the private and commercial sector there are owners of those services who are operating and managing those services without any prior knowledge or expertise in the early childhood setting. These management committees have been operating services for decades. And doing a good job. The critical part of course is gaining the information and knowledge to actually do the job properly. I would suggest that this example is not common and I guess I would also suggest there is a very quick solution to that problem and that is that if we, as an organisation, were able to assist this centre as we do many other centres then those people would gain that knowledge and to run that centre effectively and we encourage management committees and directors to work together as a team, they need to do that because if the director is a teacher and the teacher is the pedagogical leader in regard to children's curriculum, and that knowledge needs to come together with the knowledge of the management and administration to operate the centre successfully. A. I certainly do know that there are cases where, there are cases where some directors have been quite comfortable with the fact the management committee don't have information and it's made their life easier. 148 Mr Alchin was cross-examined on his evidence relating to management committees: Q. But in terms of your knowledge of community based organisations, do I take it that from what you've said that you agree that the day-by-day responsibility in such centres usually falls upon the most senior staff member who works there day-to-day as opposed to the owner or the licensee of the centre? A. Well, if we're looking at the day-to-day operation in relation to the regulations it has to be the authorised supervisor, which is often a teacher, and as the centre doesn't require one but the absolute requirement always falls with the licensee even though they may be absent. Q. Yes, but the ultimate responsibility, they are the person who has to sign the documentation. You wouldn't ordinarily expect that person to be doing the hard yards the day-by-day work to comply? A. No, I wouldn't - no I wouldn't necessarily agree with that. Because the responsibility means that X is part of the successful operation or the appropriate operation of the centre. You have to require an authorised supervisor to do what's necessary to fulfil that responsibility. Q. We might be at cross-purposes. I have this image of community based systems being made up of a group of local parents who meet from time to time, you know, to operate the centre and to make decisions about it. Is that the usual profile that community based organisations are, the local parents as opposed to the staff members? A. Well, advantages certainly staff can't be part of a management Committee if it's a not for profit organisation but certainly our - and my experience - is that those people can be very capable. They may well be parents. I'd like to think I would be capable if I was on a management Committee, I'm a parent. You may well be a parent and may take up that role as well. There are many capable and experienced business people. Q. I'm not trying to denigrate people who participate in valuable work but I'm just trying to get a handle on the generality of the situation. Would it be fair to say, by and large, the parents on these committees really don't - either can't and/or don't for whatever reason, their own work or other commitments - play a hand in a day-by-day role in the operation of the centres? That would be a fair comment, wouldn't it? A. Certainly not a day-by-day role but certainly still manage the centre. They may well have full-time jobs themselves so they can't - you know, it is - that's why they employ a director to-- Q. But that was my very point. If you are going to spend valuable resources hiring a qualified teacher to run the centre the expectation would be you would rely heavily on them to run the centre on a day-by-day basis? A. On a day-by-day basis they take the daily responsibility to be implementing the possibilities and procedures and operational practices of that service. AQCCC's case 149 AQCCC submitted the following in relation to the claimed work value changes: The AQCCC adopts and agrees with the submissions, which have been made by the AFEI in respect of the operation and effect of Principle 6 Work Value Changes, referred to the Wage Fixing Principles set out in the State Wage Case 2009, in respect of the wage and allowance increase claims which have been made by the IEU in these proceedings. … In particular the AQCCC refers to Principle 6(a)… [a]nd to Principle 6(e). The AQCCC respectfully submits that there have been no significant changes in the work value of early childhood teachers since the Union made its application claiming such work value increases before her Honour Schmidt J in the Teachers (Non-Government Pre Schools) (State) Award [2001] NSWIR Comm 335, and in the application by the Union in Re Teachers (Non-Government Early Childhood Services other than Pre-Schools)(State)(Award (2006) NSWIRComm 4. Evidence of Ms Skoulogenis 150 The AQCCC's submissions were based on the written and oral evidence of Ms Vicki Skoulogenis. Ms Skoulogenis is Vice President of the AQCCC and member of the Australian Childcare Alliance. In addition, Ms Skoulogenis is the representative for Child Care NSW on the Children's Service Regulation Industry Reference Group, a role in which she represents AQCCC members before the NSW Government in the construction of new regulations. 151 Ms Skoulogenis holds a Bachelor of Educations (Personal Development/Health/Physical Education) and a Masters of Health Educations. Ms Skoulogenis has lectured at the University of Western Sydney on the topics of personal development, health and physical education in primary and secondary schools. 152 Ms Skoulogenis described her current work situation and qualifications to give evidence in the proceedings as follows: I am currently the licensee of a child care centre known as Mulgoa Pre-School… My company is known as All 4 Kids Kindergarten Pty Ltd is the owner of that centre. My husband… and I are the directors and shareholders of that company. Since in or about September 2004, I am also the licensee of the child care centre known as Alasan Cottage Pre-School…. All 4 Kids Kindergarten Pty Ltd is also the owner of that centre. The Mulgoa Centre is licensed for 29 places. It is currently fully occupied. My licence is for children within the ages of 2 to 5 years. The Alasan Centre is licensed for 20 places. It is currently fully occupied. My licence is for children within the ages of 2 to 5 years. Neither centre is required to employ an early childhood teacher as in each case there are less than 30 licensed places. However, from in or about January 2001 to in or about 30 June 2007, my other corporate entity, Aacacia Cottage Kindergarten Pty Ltd, also owned a 90 place child care centre at Castle Hill. That company employed various early childhood teachers from time to time, and as such, I am familiar with the Teachers (Non-Government Early Childhood Service Centres Other than Pre-School)(State) Award, as a former employer of such early childhood teachers, as well as being a member of the Executive Committee of AQCCC. Also, as a member of the Executive Committee of the AQCCC, I have the opportunity of speaking with many members about their various questions and concerns in operating their businesses in the childcare industry, and this includes members who are non-constitutional corporations, and some of whom also employ early childhood teachers. For example, I have spoken many times to Ms Repole who is the director of St Abraams Child Care Centre. Also, I have conducted an in house professional development day for the Licensee, and staff, (including her early childhood teacher), at the Howlong Playhouse at Howlong which is near Albury. I do all of the administration work at both the Mulgoa Centre and the Alasan Centre, and I also did such work when I operated the Aacacia Cottage Kindergarten at Castle Hill. This administration work includes doing all the wages, attending to enrolments, rosters, parent enquiries, general maintenance, and ensuring that it fulfils its requirements under the relevant child care legislation and regulations, which are in place from time to time. All 4 Kids Pty Ltd, also operates a business known as Educate Consulting, which consults to early childhood services. In my capacity as a director of that company, and as its Consultant, I have liaised with members of the AQCCC, including many members who employ teachers pursuant to the Awards the subject of these proceedings. The services that I provide are professional development, setting up business operations which include staff rosters; advice on completing the accreditation application forms required by the National Childcare Accreditation Council; advice on delivering parent information evenings, for example in respect of the issue of school readiness; I review and advise upon the centres' programs, policies and procedures, and any individual requests which will help with the delivery of their services. As the Vice President of the AQCCC, I have access to its records and database. I am therefore aware that out of its current membership of 620 who overall operate approximately 700 centres, approximately 108 of those are members who operate businesses, which are sole traders or partnerships, that is, they are non-constitutional corporations. Of those members, approximately 50 have licences of 30 or more places, which require the employment of early childhood teachers. Of those members which employ early childhood teachers, the vast majority would have early childhood teachers governed by the provisions of the Teachers (Non-Government Early Childhood Service Centres Other than Pre-School)(State) Award 2006, as opposed to the Teachers (Non Government Pre-School) (State) Award. 153 The Association made submissions to the Full Bench on the following aspects of the Union's claim regarding the work value changes: (a) The requirements of the Children's Services Regulation 2004; (b) Changes which have been implemented to the National Child Care Accreditation Council Inc's Quality Improvement and Accreditation System; (c) The release, in 2002 of the NSW Department of Community Services NSW Curriculum Framework, The Practice of Relationships ; (d) The Disability Standards for Education 2005; and (e) The Commonwealth of Australia's discussion paper in August 2008 entitled National Quality Framework for Early Education and Care . 2004 Regulation 154 The AQCCC submitted that the Union's claim in relation to the increased regulatory requirements was unfounded. Ms Skoulogenis stated the following in her affidavit: I do not agree that the Children's Services Regulation 2004, ("the 2004 Regulation") has "more extensive" requirements than the Centre Based and Mobile Child Care Services Regulation (No 2) 1996, (the 1996 Regulation"). The 2004 Regulation is set out differently from the 1996 Regulation, and that as a result of this, there are more divisions and paragraph numbers. However, its requirements are, generally speaking, very similar to the 1996 Regulation, certainly from the point of view of the following basic requirements: Administration reports and documents required; Policies and procedures required; Indoor and outdoor spatial requirements; Children and staff record keeping requirements; Emergency requirements; and so forth. The licensing application requirements have been extended, however this is obviously a matter, which has to be attended to by the licensees themselves. However, it is my experience when re-licensing the Alasan Centre at the beginning of this year that the centralisation of this process by DoCS at their head office at Ashfield, which commenced on 1 May 2008, (initially beginning with the Southern Districts and Metro West Regions), has in fact streamlined the process. In conjunction with this process, a Licensee now only has to submit one original application for an authorised supervisor, to which DoCS allocates a working number which the authorised supervisor in fact can keep, and refer thereto for the rest of her career (at any centre). This saves the duplication of having to submit such matters every three years, or indeed when a new authorised supervisor is employed. All the forms required, are available on the Internet at DoCS website. Also, unlike the 1996 Regulation which only dealt with centre based and mobile children's services, the 2004 Regulation also incorporates the regulatory requirements of Family Day Care and Home Based Children's Services, which were previously governed by separate regulations. 155 Ms Skoulogenis asserted that clause 85 of the 2004 Regulation sets out policies relating to issues that a centre would have been required to have policies in place in order to comply with the previous 1996 Regulation. Ms Skoulogenis referred to the following clauses as such examples: Clause 12 of the 1996 Regulation required an application for a licence to be accompanied with a written statement and implementation for the service setting out the policies, practices and procedures which included (and which I have paraphrased as follows): the philosophy and aim of the service; participation of the parents and staff; individual developmental needs of the children; school transition; staff interaction with the children; the staff ensuring the programs are culturally relevant; fostering self reliance and self esteem in the children; meeting the needs of children with disabilities; treating children without bias regardless of ability, gender, religion, culture, family structure or economic status; excursions procedures; procedures reporting suspected abuse of any child; procedures dealing with complaints; training of staff; ways in which children will be given positive guidance towards socially acceptable behaviour; procedures for health (including nutritional needs) and safety of the children; procedures for caring for sick children; procedure to exclude sick children; procedures to control infectious diseases; procedures for the administration of medications to children. Clause 18 dealt with confidentiality guidelines; Clause 19 dealt with excursions and clause 20 with the conduct of excursions; Clause 22 required a written emergency plan for fire and other emergencies; Clause 24 set out a requirement for parents to have access to information such as: the centres' written policies; procedures for parent complaints; emergency evacuation procedures; procedures for arrival and departure of the children; developmental records. Clause 15 of the 1996 Regulation required the authorised supervisor and licensee to ensure that the primary contact staff complied with its "Code of Conduct" set out in Schedule 2 thereto. This code dealt with issues such as: Clause 1 "Arrival and departure"; Clause 2 "Child Health"; Clause 3 "Food and drinks"; Clause 4 "Illness and Accident"; Clause 5 "Infectious diseases"; Clause 6 "Medication"; Clause 7 "Parental access to children"; Clause 8 "Service program", regarding a program of activities designed to stimulate and develop the child's social, physical, emotional, cognitive, language and creative potential; Clause 9 "Interactive with children"; Clause 10 "Animals" 156 In summarising her overall position regarding the 2004 Regulation, Ms Skoulogenis said: I do not believe that the changes to the 2004 Regulation impact practically on anyone, other than the licensee, who undertakes the majority of the administrative duties, and in this case the AQCCC's members, who typically undertake the supervisory and leadership role. Role of licensee 157 An issue that arose in the evidence of Ms Skoulogenis was that of the role of the licensee and the teacher and their interaction within the centre. Ms Skoulogenis said in her affidavit: At most private long day care centres, it is the licensee, or owner of the business, who attends to: the administration and management of a centre including recruiting staff, paying wages; preparing rosters, arranging for replacement staff and extra casual staff when needed on a day to day basis, etc; ensuring that the centre and the staff are complying with the regulations made by the Department of Community Services ("DoCS"), including ensuring that all records are complete; ensuring that the centre's policy in respect of the investigation and notification any instances of, or alleged instances of, abuse or neglect of a child, which either the licensee, the authorised supervisor, or any other staff member may suspect, is complied with, and if need be, then reported to the Ombudsman and DoCS. If the instance or alleged instance is in relation to the licensee or owner, all that it required by the staff is to telephone the Ombudsman or the DoCS helpline, who will carry out an investigation; preparing and coordinating the documentation for accreditation applications (in conjunction with the staff and the parents), and ensuring that the centre and staff follow the accreditation principles; overseeing the overall programming activities, which the licensee and/or owner may prepare, or have a very high input into such preparation, where they may also be the authorised supervisor. The licensee and/or owner also oversee the overall programming activities irrespective of whether they may have early childhood teaching qualifications or diploma qualifications; accepting the enrolment of any special needs children, including applying for grants given by the Federal Government to the State Government to fund the employment of temporary child carers who can provide "one on one" supervision of such children; liaising with the parents in respect of administrative matters; and in respect of programming and behavioural matters; liaising with parents in conjunction with the relevant primary contact staff, including the authorised supervisor (where the licensee or owner does not fill that position), for the licensee to organise any professional assessment (for example speech therapists or physiological assessors) on a needs basis that a child may require; completing any DoCS documentation such as in respect to licensing and risk assessment in conjunction with their authorised supervisor (where applicable) and the staff; ensuring that the centres are safe environments pursuant to the occupational health and safety legislation, including doing any required risk audits, organising accident prevention, staff awareness, workers compensation procedures and so forth; passing knowledge gained from research into all areas of child care; and adhering to the guidelines of the food safety policy of the state government. At most private long day care centres, particularly centres operated by sole traders and partnerships, it is generally the licensee and/or owner who supervises the staff and the centres' operation, as opposed to employing a Director or a Co-ordinator or Co-ordinator qualified, which may be the norm in community based long day care centres. 158 Mr Kimber examined Ms Skoulogenis on the basis of her belief that the responsibilities arising from the 2004 Regulation have fallen predominantly to the licensee of the centre: Q. Now just, when you assert: "At most private long day care centres", what's the foundation for the proposition when you say "most", what data do you point to support that assertion? A. The data - there is no data in my affidavit, this is information that we have on our own data base at the Association and I'm talking about our members in this capacity. Q. Well, it would have been a pretty easy thing to have surveyed and documented if it were true, would it not? A. Yes. Q. But you haven't done that? A. No, because - we have not done that as part of the Association at this time. Q. See, I want to suggest to you that it's simply incorrect in any event and that's not the way it operates as a matter of normal practice-- A. No, I disagree-- Q. --in these centres? A. --I disagree. The majority of owners do do this administration work and all the things that I've stated on these two pages. … Q. See, now just dealing with the question of administration, I want to make sure we're talking the same language here? A. Certainly. Q. But I want to suggest to you that the involvement of owners or licensees as opposed to the teaching staff, if you like, the senior qualified people who are there day by day, that to the extent that owners or licensees get involved, that that is much more related to issues of either the payroll or enrolments or overall business administration; do you agree with that? A. There are certainly some tasks in administration-- Q. There are certainly some tasking, did you say? A. That is certainly some tasks in administration that you've mentioned, payroll, as I've mentioned there, rosters, putting on extra staff. There's a variety of different ways that people adhere to their administration, and the set up of their service. Certainly there's a big difference between a nine place centre and a twenty place centre when it comes to administration. Q. But see, the way you've formulated this paragraph in your affidavit you've said: "At most private long day care centres it is the licensee or the owner who attends to" --and then you've listed all these responsibilities? A. Yes. Q. Correct? A. I have. Q. And the thrust of this evidence is really saying the teachers aren't required to do any of this, the owners are doing all the work? A. In long day care centres the owners do take on that role because they are the licensees, they hold the licence, and if any breaches occur it comes back to the licensee. Q. But you know that there's a difference between legal responsibility and who does the hands-on work day by day, don't you? A. Yes, that's correct. Q. And so I take it you're prepared to accept that at least in some centres where they have teachers who they think are desirable and who are the authorised supervisors that you'd expect those teachers to be doing a lot of this work? A. They certainly do some work, I will not disagree with that, in some services. Everyone's different. Q. Well, you don't state that in here, you actually state the contrary, you say in most of them the licensee or the owner does all the following things? A. The members that I have spoken to and I have witnessed and gone to their services certainly do a lot of that administration work. They allow their teachers to get on with teaching the children. And I would think that would be very different in a community based service. 159 Ms Skoulogenis was cross-examined further regarding the burden of responsibilities in the centres: Q. Now you see, what I'm picking up, if you can go back to paragraph 23, see, what I want to suggest to you is that apart from the fact that it suggests that this is the norm among most centres, and I think you've now accepted that that might have been over-stating it a bit; the other thing that's over-stated, I want to suggest to you, is that you've implied that most licensees or owners of the business are responsible for or hands-on involved with even issues like programming activities, the activities that occur at the centre itself? A. Yes. Q. I want to suggest to you that that's a gross over-statement of the true position? A. There are a lot of owners that actually work on the floor, that is correct, and they do have first-hand knowledge of the programming that are typically involved. In New South Wales there are more 29 place centres, and a lot of people that own those services work their services. Q. How many? A. I don't think that's a gross exaggeration. I think a lot of people still work in their businesses. Q. Do you know how many? A. No. Q. Have you done any analysis to get a handle on how many work on the floor? A. No, I don't have any evidence on that. Q. How many of the owners or licensees have any qualifications at all? A. No, I don't have evidence on that. I don't have any data with me at all. Q. See, because some of these matters that you refer to actually require qualifications to undertake the responsibility, do they not, especially issues of programming and the like. You can't have an untrained person determining the programme that's going to operate in a child care centre, can you? A. An untrained person can assist somebody else doing the programme. They can't write the whole programme, they would have a qualified person with them, being a diploma or an early childhood teacher. But certainly untrained people can take observations and assist in programming. Additional needs 160 In relation to the tasks associated with additional needs children, Ms Skoulogenis stated: In respect of children with disabilities, all early childhood services have always had an obligation to accept such children. The Federal Government funds a program known as Inclusion Support Agencies (known as ISA) which offers assessments; home visits to parents; access to libraries; assistance with individual programming; staff training; and may provide or as mentioned fund ancillary staff. As I have said, the coordination of this service is generally a matter handled by the licensee and/or owners of a centre. … Our members have always attended to children with additional needs and delivered the programs that are required. This has not added any complexity or work to our staff. 161 In her reply statement, Ms Press addressed what Ms Skoulogenis said about additional needs children: I… say that the assertion that the owners of private centres take the major responsibility for such areas as programming, the inclusion of children with special needs, passing on knowledge from research, and transition to school (all of which are encompassed by the curriculum developed and implemented in the centre) is contrary to the intent of the Children's Services regulation, 2004. The Regulation requires the employment of university qualified teachers because of their child development expertise and the professional judgement that they bring to decisions about the curriculum in the centre. In these paragraphs Ms Skoulogenis' statement presents as the norm, practices within private centres, that minimise the professional role of the teacher in ways that are potentially detrimental to the quality of the centre. I assert that these practices are not the norm, and where they do occur are not in keeping with best practice in early childhood programmes. Curriculum Framework 162 The AQCCC submitted that the document entitled NSW Curriculum Framework, The Practice of Relationships issued by DoCS in 2002 was not: [A] regulatory requirement, and that it is simply a tool available at the discretion of the licensee as to whether or not to implement it at their centre. Further, it does not add to the work which has been required of early childhood teachers, as the methodology is not dissimilar to the interactions with children requirements of for example clause 8 & of Schedule 2 of the 1996 Regulation, or even the requirements of Clause 1 of Schedule 1 of the Centre-based Child Care Services Regulation 1989, which preceded the 1996 Regulation, leading Mrs Skoulogenis to conclude that such documentation has made the work of all child care workers easier. 163 Ms Skoulogenis stated the following in relation to the New Curriculum Framework and Best Practice publications: These documents in summary recommend a change in the emphasis of child development techniques from endeavouring to address the negative behavioural patterns of each child, to instead actively promoting the positive behavioural patterns in respect of each child. That is, the emphasis changes from working on what children cannot do, thereby tending to promote poor self confidence and self esteem, and instead working on what children like to do, and are good at, which instead generates excitement, improves behaviour and encourages positive self esteem and confidence. However, it is important to note that The Curriculum Framework is not a regulatory requirement, and is simply a tool available at the discretion of the licensee as to whether or not is implemented at their centre. Indeed these publications in fact reiterate and build upon such a change in emphasis, which has been developing over a number of years…. Indeed in the regulation immediately preceding the above regulation, it too (though in less detail) reflects this trend. Clause 1 of Schedule 1 of the Centre-based Child Care Services Regulation 1989 states: "1. The authorised supervisor and other members of staff of a centre must, in relation to each child at the centre, ensure that: the health, welfare and progress of the child are promoted; and the child is provided with a range of activities designed to promote social, emotional, cognitive, cultural and physical development; and the child is (where appropriate) provided with regular and varied meals and refreshments, having regard to the child's age and to community practices; and the child is provided with educational and recreational activities (both on an individual and a group basis) that are suitable and adequate for the needs and interest of the child." … Therefore where centres have adopted the methodology set out in DoCS above-mentioned publications, this has not, (certainly in my experience), lead to child care workers having to incur any further skills or responsibilities; it has in fact made their jobs easier. This technique also leads to less formal written programming work as by its nature it requires more spontaneity and immediate feedback as a child carer interacts with each child as they perform their daily activities. For example, one child may find painting more enjoyable than playing with blocks, in which case that child would be encouraged to continue to enjoy and develop the skills in that activity. Also, the use of technology such as digital documentation, which is also not mandatory, but is available, has assisted in reducing the reporting requirements, as a photograph can now replace a written description of an activity. I use digital documentation at both of my centres. 164 Ms Skoulogenis was cross-examined on her evidence regarding the new framework: Q. In the last sentence of paragraph 52 you say: "However it is important to note that the curriculum framework is not a regulatory requirement and is simply a tool available at the discretion of the licensee as to whether or not it is implemented in the centre." ... Q. Now I want to suggest to you that the reality is that DOCS actively encourages the use of that curriculum framework, does it not? A. Yes, that's correct. Q. And the reality is that you would normally find it being fully implemented in most centres in this State; that's true, is it not? A. I wouldn't say most. People take aspects of the curriculum framework that they like or they want to engage in in collaboration with their staff, make a decision, and use bits and pieces of what they like and lots of different theories. But it's a very good tool. I'm not disagreeing with that. Quality Improvement and Accreditation System (QIAS) 165 Ms Skoulogenis responded to the Union's claim that the QIAS has had an impact on the work value of teachers: The vast majority of the AQCCC's members, (including the members who employ staff pursuant to the Awards the subject of these proceedings), have always undertaken and administered the Quality Improvement and Accreditation System, ("QIAS"), as part of Childcare Benefit and Government subsidy to assist parents with childcare expenses. However, traditionally pre schools have not administered or implemented the QIAS. Therefore, the majority of matters that have been deposed to by Ms Heron… have always been undertaken by our members, and their employees, with little practical change to the work involved in attending to the QIAS, since the commencement of operation of the 1996 Regulation or the 2004 Regulation. … I do not agree that QIAS has led to child care workers having increased expectations being made of them and increased reporting requirements, at least in the past six or seven years. In my experience, it is the responsibility of the licensee and/or owner of private long day care centres to prepare the material required for accreditation. Certainly, such licensees and/or owners require the assistance of their staff and the parents to complete such material, however the administrative requirements in preparing such documentation has not significantly increased since the QIAS system was introduced in 1994. Indeed, when the system was first introduced, QIAS had 52 accreditation principles, which was then reduced to 10 in 2001, and have now have further reduced to 7 basic principles in 2004. In any event, the work required by centres under the QIAS has not increased, or otherwise become more complex, since the 10 principles and then the 7 principles were established. It has in fact become easier to implement, this includes the "Continuing Improvement Plan" which has always been required to be completed under QIAS since it was introduced in 1994. 166 Following questioning about the various changes on early childhood centres over last several years, Mr Kimber asked Ms Skoulogenis about the overall effect the changes have had on the industry: Q. Do you think anything has changed that has added significantly to the value of the work that teachers do in child care centres since 2001? A. Things have changed, they have added substance and value to the workforce, yes, teachers and staff certainly may have adapted their roles. And to your answer, it has added value to their role, but it's not just one, one part of the team, it's not just to early childhood teachers, it's to all employees or staff members, and in there also directors have taken on some of those roles as well, or owners, pardon me. Q. Well, in spite of that answer, albeit general, you still have given evidence on a number of occasions and today that suggest that nevertheless there should be no increase in their rates of pay, is that right? A. Yes, because the things that have come through, as an example, the new curriculum has actually assisted and tried to decrease the amount of paperwork that the staff were actually engaged in. That was the whole background of what we were trying to achieve and assist the children's development. Consideration 167 The datum point from which the IEU seeks the claimed changes in work value to be assessed is January 2006. That is a relatively short period in which to demonstrate that the changes that have occurred amount to such a significant net addition to work requirements as to warrant the creation of a new classification or upgrading to a higher classification. 168 Nevertheless, the IEU submitted there have been significant developments in the theory and practice of early childhood education in recent years, which have translated into ever more rigorous regulation of the sector by both State and Federal Governments. These factors, it was submitted have led to more complex and onerous demands upon teachers, both in terms of pedagogy and in terms of administration and associated duties. Counsel for the IEU submitted this was readily translated, for work value change assessment purposes, into a significant change in the conditions under which the work of teachers is performed. 169 The principal changes relied upon by the IEU covered a range of different aspects of the teaching role, including the following: (i) More rigorous, structured and documented teaching regime; (ii) Increased administrative responsibilities; (iii) Increase in extent and complexity of client requirements; and (iv) More onerous regulatory requirements. 170 Particular reference was made to the evidence of increased complexity of programming and reporting, particularly on child development over recent years, and the increased volume and complexity of work associated with care for children with special needs. 171 The employers, on the other hand contended that the IEU had not met the requisite tests in the work value principle; the Union had not demonstrated that the applications had 'special attributes' or were 'out of the ordinary' so as to take them outside the restrictions which may otherwise apply under the wage fixing principles; the Union had not identified, on an objective assessment basis, whether any changes that have occurred amount to such a significant net addition to work requirements as to warrant the creation of a new classification or upgrading to a higher classification from the datum point of January 2006. 172 We have referred to the IEU's evidence of work value change at length. We are satisfied that it demonstrates there have been changes in the value of work of employees to be covered by the proposed Awards. This change has manifested itself in the four areas referred to above: the teaching regime; administrative responsibilities; client requirements; and regulatory requirements. 173 Ms Connell provided a snapshot of the changes in the last three years that have impacted on her. Her evidence in this respect was not challenged. We accept those changes are indicative of a wider impact on preschool teachers: Insurance Compliance : · Work Cover Premium Discount Scheme – Small Business Strategy. · Commenced April 2006 – three years. · Formulation of Policies and Procedures for OH&S and Health and safety, Injury management. · 4 Audits. · Developed a comprehensive OH&S and Injury Management System · Communicate the system to all persons involved – extra meetings · Implement the system · Monitor and review the system – extra meetings · 24 new policies – researched, written, communicated to all persons involved. · Operating Instructions for all electrical appliances · Visitors and Contractors safety Cards Preschool Open Days · Commenced 2008 · Planned, advertised, resourced and implemented. Partnering Group, Brochure and website · Brochure -Researched, designed, distributed · Websites -2 designed, built, maintained. · Buying power · Training others · Monthly meetings · Dissemination of information · Articles for newspaper, newsletters Promoting EC in the Community · Children's Week – display – 4 days · Advertising, radio, TV · Planning, Risk analysis, implementation, meetings · Transition to school nights, meeting with schools Parent Demands · Interviews when placed on waiting list · Appointments to view Centre · Parent information night · Interviews during the year - progress · Interviews re school readiness and enrolment Programming, Documentation, Accountability · Digital Documentation – commenced 2006 · Daily Diaries – commenced 2006 · Photostories – commenced 2008 · Portfolios · Time consuming but expected by the parents. Digital copies and hard copies supplied. New Philosophies of Education, Research · High Scope –training, implementation, · training for new framework New Technologies – Smartboards, Digital Cameras · Training and Research Families First Transition to School project · 2006 · Training, meetings, implementation in conjunction with the Primary schools · Surveys and responses DoCS monitoring visits · Now yearly. · Preparation of requested documentation – updated policies to reflect Regs and any changes. Responding to Consultations and surveys · EYLF over the last 2 years · Not many hard copies sent anymore – downloading · Reporting on-line - training Lobbying for funding Community consultation · What do families want, needs of communities Extended hours care · Policy development · Longer hours of supervision so less time for planning, programming admin during the day Budget and Finance · Budget and finance much harder and more intense – running small business – Myob, Excel, Access · Business plan, strategic planning - 2007 · Audit, accountability documentation · Order from more diverse outlets to get better prices · Taking and receipting fees as parents chose to pay weekly or fortnightly more frequently Fundraising · Taking and receipting money, organising orders, distributing Special Needs · More children enrolling in EC programs as parents are encouraged to mainstream their children · Team meetings · Transition to school visits and meetings are more frequent · Preparation of transition programs for children who are going to mainstream · Collaboration with school on funding document since 2007 · Parents now source 2 or 3 schools before making a primary school choice so we are involved in collaboration with more schools. 174 To take just a few of the matters referred to earlier in the applicant's evidence: first, there was evidence of Ms Connell, Ms James, Ms Connors, Ms Fanning and Ms Simon of greater complexity of programming and reporting particularly on child development over recent years. Parents have increasing expectations for structured education and detailed recording and reporting of their child's progress. It was Ms James' evidence that: The emergent curriculum means a style and philosophy about teaching in the early childhood sector that includes the child's focus as primary, with the focus of learning from the child's perspective. Teachers are now completing very detailed portfolios of children that include work samples, digital photographs, interactions with peers and staff, emerging skills and interests, and strengths in the Curriculum Framework domains. These domains are language/communication, social-emotional development, creativity, thinking/problem-solving, physical development (skills and activity levels), spirituality and moral development. Teachers are also responsible for daily journals (written and digital), which demonstrate to parents the interactions and learning that have occurred throughout the day. Teachers plan individual activities based on their observations and interactions with children and evaluate these on a daily basis in order to modify their programs to better-assist children to achieve desired outcomes. 175 Secondly, on parents' expectations Ms Connell stated: As parents have become more informed about the importance of early education they are more demanding of information and as the Director there is an expectation to run evenings on school readiness and other relevant topics. Planning meetings, presentation, finding speakers, panels usually takes place after hours. As a teacher I am increasingly required to speak to parents privately on topics such as school readiness, behaviour, nutrition, literacy, numeracy, choosing schools, sibling rivalry, separation, divorce, abuse etc. etc. etc. There is a requirement for me as a teacher and a Director for me to keep abreast with new research and educational practice. While this has always been part of our program we now find that we spend more time with parents on an individual basis explaining the best time for starting school and talking about their child's development. As current research proves that Early Childhood is the most important time for a child's learning, parents are becoming more aware of the issues involved in school readiness and the importance of Early Childhood education, and they are asking more questions about programs and the importance of play based curriculum. Parents are also more anxious about their child's development and feel that their child should reach certain developmental milestones before school. As we are often their first Early Childhood experience we must ensure they understand what is best practice and that their child is receiving a quality Early Childhood experience. 176 Thirdly, we accept there has been an increase in the proportion of children with special needs, intellectual or physical. This has created a more complex environment in catering to a diverse range of special needs children. Ms James' evidence, referred to earlier, regarding her experience as a special needs teacher, demonstrates the changes in this area relied upon by the IEU. 177 Fourthly, there was evidence that teachers are now required to develop a greater range of policies and review them more regularly. Ms Connell's evidence in that respect was as follows: In relation to policies, the number of policies required has certainly increased not only due to the Children's Services Regulation but because of other regulatory requirements and insurance requirements. For example, it was once necessary to have only one evacuation policy. We now have separate evacuation policies in the event of: Fire or Gas Leak Flood Building Collapse Bomb Threat Suspicious Mail Invasion of Insects Invasion of Reptiles Invasion of Agitated or Aggressive Parent or Family Member. We also have policies for evacuation from outside to inside in the event of: Adverse weather Flood Invasion of Insects Invasion of Reptiles Toxic leaks and spills in the community One policy has now grown to 13 policies. Each policy needs to developed, discussed, amended if required, reviewed and staff need to be trained in the policy. This work is done by the teacher and has increased the complexity of our work. 178 Fifthly, in relation to regulatory requirements there are: · more extensive requirements in relation to accident recording in services; · stricter requirements in relation to supervision of children while toileting; · in relation to keeping of animals, changed procedures in how they are handled within the centre; · new standards in relation to food hygiene. 179 When regard is had to the combination of all of the work value factors that have been addressed in the IEU's evidence, it is overwhelmingly in support of an increase having occurred in the work value of preschool teachers. However, having regard to the employers' evidence, we accept that whilst changes had occurred during the relevant period, there were elements of the change that did not constitute a significant net addition to work requirements, that in so far as responsibility was concerned a significant proportion of this had to be borne by the licensee or owner and not teachers or directors, and that some of the changes relied upon by the IEU were more in the nature of evolutionary change to work that had always been undertaken by teachers and directors. These are considerations to be taken into account in assessing the size of any wage increases justifiable on work value grounds. DIRECTOR'S ALLOWANCES IEU's case 180 The IEU claimed as part of its application that director's allowances be increased in order to reflect the level and type of work being carried out by the authorised supervisor or director of the centre. The IEU submitted that 'the evidence shows that, as with teachers, the work of Directors and Authorised Supervisors has become more complex and challenging over recent years'. 181 Much of the evidence going to an increased and complex workload for directors has been referred to in the evidence summarised above regarding the workload of teachers. The witnesses called by the Union were often giving evidence in their capacity as both teacher and director. Some of the evidence related specifically to the role of director and this is described below. General responsibilities 182 Ms Connell described the extra roles she undertakes as the director of her centre, such as marketing and the recording of information: As a Director I have to spend time marketing the Centre as enrolments become scarcer and expectation on programming and documentation becomes greater. As a Director and teacher I also have to sell the value of early education to the community as the new brain research is released, and sell the value of the emergent curriculum. This takes time and planning which is done in my own time and presentations to parents which are done after hours. … As the Director I am responsible for the collection of the correct information regarding children and families. Now I must ensure that the records are stored securely and only accessed by the appropriate people, displayed as necessary (allergies), retained for required number of years under the Regulation (i.e. 12 months, 7 years, 21 years) stored in safe accessible places. As a Director I am required to regularly cull and dispose of old records as per the regulations. I am required to formulate policies which reflect any new regulations. I am required to train staff in these processes. 183 Ms Connors explained how she had taken a role in the health issues facing many families: Due to the Hunter New England program – 'Good for Life, Good for Kids", I have been required to attend meetings, review programs and implement new policies for healthy food and physical fitness. I have had to re-write the Food, Nutrition & Education Policy; the Food Handling Policies & Procedures; Food Allergies – Anaphylaxis Policy and Oral Hygiene Policy and Procedure. I am presently writing the new Physical Activity Policy and updating the Supervision Policy, the Sunsmart Policy and the Safe Collection of Children Policy and Procedure. I am currently reviewing the new Food Safety Laws and the impact they will have on my kitchen and cook. I have been asked to support a Hunter Health program to support the formation of a resource to assist staff with children and families who have mental health issues. 184 Ms James gave evidence of discussions she had with directors during her visits to centres: I… spoke to teaching director Rochelle. Rochelle told me "Staff management is a large component of the director's job. Interviewing staff, advertising, conflict resolution – all that. Directors definitely have more responsibility. In other jobs you leave at the end of the day and don't think about it again but not this one. There are a lot of tasks that you can't delegate. The director's role takes 20 hours per week but I only have 10 hours administration time. Teaching means I have programming, portfolios and evaluations and these take another 10 hours per week, so I spend about 20 hours per week of my own time… Early childhood teachers go to school because of the higher wages and annual leave. Vacation care is very expensive if you have a family". I… spoke to director Jacqui. Jacqui advised "The Director's Allowance should be doubled, it is such a big responsibility and you are responsible even when you're not on the premises. You never 'knock off' for the day. Authorised Supervisors should be paid an "on-call" allowance or something because now DoCS are saying that we have to leave an after hours contact number for parents or in case of a medical emergency so I have to give them my mobile number and parents can call any time. Not that I want them to. As an Authorised Supervisor you are responsible for supervision of staff and for the premises: OH&S, has the heating been turned off, accreditation (knowing the guidelines and ensuring other staff know and follow the procedures). I spend a lot of time educating untrained staff members on how to do the 'right thing'". Christine says she resigned from her position as a director and is now working as a teacher because DoCS said she had to give them her contact numbers and itinerary whilst she was on her honeymoon and that she would have to come back if something happened at the centre. Christine found that unreasonable. Management Committee 185 The Union submitted that the director's workload had increased over recent years due to a more transitory committee membership and the less 'hands-on' role played by the committee in the day-to-day running of a community-based centre. 186 Ms Simon summarised the roles that she was required to undertake as director of a community-based centre: As we are a stand alone, not for profit Community Based Preschool, I do not have a management umbrella/organization to access for information, policy development, HR, payroll, etc. At our Preschool I am responsible for everything under delegation from the Management committee. In years gone by I have had reasonable support from some members of the management committee, however increasingly I am finding that management committee members are unable or unwilling to undertake any day to day tasks in relation to the preschool due to work and family commitments. Therefore I pick up the extra duties e.g.: organizing fundraising, which is an important line item in the budget, collecting and collating fundraising monies, preparation of budgets, monthly monitoring and reporting on the budget, collation of Data and completion of DOCS reporting documents, development of a business plan and its maintenance. … Membership on the Preschool management committee is generally only for a couple of years. Each year there are new members and there is very little continuity from year to year. Our management committee meets between two and four times a term with numerous sub committee meetings as well. Unfortunately as committee members move on knowledge and skills that I have been responsible for imparting goes with them and I need to begin again. The last five years have seen changes to regulations, OH&S, funding, reporting and accountability procedures, documentation, theories in early childhood and programme delivery, just to name a few. As the management committee are our licensees, they need to be as knowledgeable as possible about running the business of a preschool from the administrative side to the educational side and everything in between. Unfortunately the level of responsibility required by management committee members is daunting and appears to be stopping parents from wanting to join the management team. The amount of time it takes to convince parents to think about going on the committee let alone the amount of time required on an ongoing basis to train and inform them and to basically keep them on the committee is debilitating and exhausting and I believe one of the major factors hindering Early Childhood teachers desire to take on management roles in Community Based services. 187 Mr Boyce questioned Ms Simon about her assertions regarding the committee membership: Q. It's always been the case, hasn't it, that the management committee changes regularly? A. It's always been the case but over the last few years we've noticed that the children are not always attending for longer periods of time. Time frames are smaller. So they might only have one child coming to pre school for one year, they show their interest, they come on the management committee and then they leave. So that is much more common now than it used to be. We used to have long term management committee membership but not so much now. And they're fine once they get on the committee. This is just too much, so they decide not to re-stand the next year. So it turns over and I've noticed in the last three years especially when I have been introducing many more changes in the industry and the profession they don't understand and they just decide it's too hard and therefore that increases my workload immensely. 188 In re-examination on the issue, Ms Simon stated: Q. In answer to Mr Boyce, you referred to a committee and needing to inform the committee and you mentioned that in the context of funding amongst other things, your committee is made up of whom, local people? A. They are parents. Paid up members of the preschool association which you have to be when you join the preschool. It is $2 to join. And they are four members from the church, nominated from church parish council because we were set up by a church - they don't run it, they don't fund us, but we are living in their building. And they are members of the preschool community anyway and then the other four members or five members, it depends how many we get, are off the floor at the AGM, parents, interested parents of the preschool. Q. And on a day to day basis do any members of the committee have work to do in terms of the running of the centre? A. On a day to day basis, very little anymore. Let me think - out of the nine of them, five of them work full-time and the other four work part-time. Some of them are teachers themselves, full-time teachers. So in the day to day they are doing their own jobs so they do most of their work at night and so I do e-mails and some calls during the day or at night. For example last night I was e-mailing a committee member about 10 to 10 because we were putting together a new marketing brochure for our preschool. So much of the work with the committee goes on after hours. All our meetings are after hours, generally from 7 to 10.30 and we meet, we used to meet twice a term now we meet generally four times a term and we have subcommittee meetings outside of that. 189 Ms Connell described her experience of committees: Both parents are now more often working so do not have the time to give to Committee responsibilities. There are fewer extended families in communities so parents cannot rely on grandparents or uncles and aunties to look after children while they attend Committee meetings. Committee members often only hold Office for 12 months and then move onto school so they are not developing the knowledge and skills needed to manage a Preschool. With the funding crisis preschools are now run more as a business to make sure budgets are not in deficit and many parents are not willing to take on this responsibility and also often do not have the skills required to do so. The following documentation is more and more often left to Directors and Teachers to complete. ASPARD Document Fundraising – often left to staff to handle Family/community get togethers planning and implementation General classroom help Working bees Budgets Policies OH&S Return to Work Policies 190 Ms Jacobsen provided examples of similar experiences at her centre: A lot of administrative tasks used to be undertaken by the committee, however it is a big ask of a volunteer parent, who usually is not 'trained' in the area of running a business with various partners on funding that was dated 20 years ago, and are not up to speed on such things as DOCS forever changing forms, licensing, funding agreements, etc and as they only hold the position for a twelve month period by the time the Director/staff have 'trained' the committee about this and the committee have done their own research and taken on an understanding of what is involved, it is time for a new committee, and the Director/staff have to start all over again and retrain another group of volunteer parents. Therefore many of the tasks once undertaken by the Committee are now done by me as Director. Accreditation process 191 Ms Connors described the additional work created by the accreditation process: For accreditation, the NCAC now requires all policies to be dated and reviewed on a regular basis. We currently have seven quality areas that we are validated against but we are aware that there will be changes this year that will require all evidence to be re-submitted and evaluated. We have spot checks from the NCAC which is a new practice. 192 Mr Boyce examined Ms Connors on her evidence regarding an increased workload resulting from a changed accreditation procedure: Q. You also refer to accreditation… It talks about the policy being dated and reviewed on a regular basis? A. Yes. Q. Accreditation has been in for some time. When did you start having to follow its requirements? A. I did my first accreditation in 2005 under 35 principles over 500 indicators. I did it again in 2007 under 33 principles and 708 indicators. There were two less principles but over 200 more indicators. Additional needs children 193 Ms Connell described the increase in work associated with Supporting Children With Additional Needs ('SCAN') funding: Prior to the SCAN funding arrangement which was introduced in 2002, we were not required to apply for special needs funding separately. Now, as a teacher I find that the SCAN funding applications take more time as more information is required about children and applications are submitted more frequently under the new system. Reporting is also more frequent. As a Director I also sat voluntarily on the SCAN assessment panel 2 times a year which meant time in travel and time away from Centre which I made up in my own time. As the Director I have the overall responsibility for the planning and implementation of IEP's (Individual Education Program) and FSP's (Family Service Plans – a more recent requirement), programs, reporting to parents and I must sign off on these. OHS regulations 194 Ms Connell described her role in implementing the OHS regulations: This is huge. Under "Other Arrangements" option I (as Director) take the responsibility for implementation of this. I have done many hours of training, which have often required travelling to other towns. I take responsibility for the auditing, checking, policy and procedure writing, induction, reviews, training of staff etc. I take the responsibility for the Staff meetings, minutes, circulation of relevant info, signage etc. I find it very stressful not knowing if I got it right, and I am very fearful of prosecution. It is a requirement for all staff to conduct risk assessments, keep records of accidents and near misses and be informed about all OH&S concerns. I have completed training through Lady Gowrie "Work Cover Premium Discount Scheme" as I am required in my role as Director to take responsibility for Return to Work Plans etc. if a staff member is injured at work. As a Director I would be required to liaise with Return to Work Co-ordinators and insurance companies. Privacy Laws 195 Ms Connell described her additional workload as director of the centre in relation to privacy laws: I am required to train in and understand the Privacy Laws. I must train staff and Committee, maintain records safely, formulate appropriate policies and procedures and ensure they are implemented. I must review these regularly. It has been a requirement for the Centre to rewrite the enrolment forms in order to obtain permission for photographic evidence to be collected and displayed. As a Director I have had to formulate and collect confidentiality statements from Committee Members and consider the implications of the ACT when identifying children with additional medical needs, altered family circumstances, allergies and additional needs. Child Protection 196 Ms Connell described her increased workload as a director regarding child protection issues: I am required to train other staff in Child Protection. As Director I have the added Responsibility of reporting under the Act as well as the Ombudsman's Act and must train staff in both these pieces of legislation. I am required to collect Prohibited Persons Declaration Forms from all volunteers and visitors to the Centre. Parents often would rather not come in to the centre than sign so as a consequence of this, parents are less willing to help in the classroom. This places more responsibility on teachers/Directors. I am required to collect information and apply for Working with Children Checks on all staff both permanent and casual. 197 Ms Simon summarised her various administrative duties as a result of changes to funding in the early childhood education sector, the daily use of technology and the more complex licensing requirements that impacted on her work as a Director: Funding Changes Changes to DOCS funding has meant that we must change our structure and work to attract more families to the preschool across the week. The DOCS model proposes more "bums on seats", flexible enrolments, but does not allocate more resources to attract additional children and to organize new models. To fully understand the Preschool Investment and Reform Programme I have had to attend numerous, forums and meetings in and out of work time at various venues in the Sydney CBD. The hours required take me away from my service and family and all the time lost has to be made up in my own time. Additional time has also been required to educate and inform the management committee, parents and staff as the implications of the funding changes for our service are enormous and have caused a great deal of angst as we redevelop programme models, budgets, business plans and marketing strategies in an attempt to prepare for funding model changes. In addition, more children across a week in flexible enrolment patterns leads to more children's records to complete, administration, families to liaise with and at times additional staff to manage etc, all necessary yet time consuming. We are changing our enrolment patterns constantly to meet the needs of our clients whilst still providing a quality educational programme. Use of Technology Five years ago we were grappling with the use of technology in our administration and programme development as a service. In the last five years the following has occurred in our service in relation to technology, each has taken time to learn, develop and train staff and families to use. Development of an interactive website add new information, newsletters, photo's etc to each week. I worked with the developer to build the site and then trained staff to be able to access it and add content to it as required…. Funding submissions to DOCS, DET ISP etc are now completed online requiring access to a computer to complete them. Email is becoming the preferred form of communication for the majority of our families. At the start if each day and regularly throughout the day either myself or our clerical assistant need to check the preschool email and my email to ensure that we do not miss any messages from parents re their children. Newsletters, notes, invoices etc are being emailed to families; however this has created another level of work as I need to ensure that families receive the communication by checking that email addresses have not changed, checking that they are accessing their email, responding when required. Most professional organizations, training institutions, committee members etc are communicating almost exclusively by email. Whilst this is positive in so many ways it requires constant monitoring. Other staff other than the clerical assistant is unable to aid in this area as 1) they cannot leave the floor to access the technology and 2) due to the confidential nature of the many of the emails it is inappropriate to allow other staff to take on this responsibility. Our clerical assistant cannot be responsible for many of the computerized tasks as they fall outside her area of expertise in relation to Early Childhood and education in general. Five years ago in our service technology was being used very minimally in the programming and documentation other than printing of photos occasionally and word processing. Nowadays it is used for the development of the children's portfolios, developmental records, daily diaries, journals and photographs etc. I have been responsible for ensuring that we have the appropriate hardware required for the office/administrative tasks and for the staff to use to develop their programmes and children's records. Additionally I have been responsible for training and facilitating the development of the skills required by the staff to be able to use the technology to the best of their ability…. DoCs licensing and Regulatory Changes DoCS has changed its model and service delivery by making licensing centralized and monitoring visits from local offices. This change has required attendance at DoCS forums in relation to the changes and what they mean for us in relation to service delivery and licensing. The licensing process of a service appears to be more simplified, however now there is no access to advise and all sections and clauses of the regulations are open to interpretation by individual services as we have to cross reference with the OH&S legislation, Child Protection legislation, and Building standards, Vulnerable Person's Act, Privacy laws, new safe food handling requirements etc – the list is endless. It is my responsibility to ensure that we comply in all areas, train and inform my staff and committee. Whilst DoCS are able to send their officers out to do spot monitoring checks at any time, the role of advisor has been deleted and we are unable to seek advice or opinions in relation to regulations or best practice from DoCS personnel. Additionally this year we have submitted our licensing documentation and I made in excess of 10 phone calls to DoCS re a couple of issues pertaining to licensing documentation and to this date I have not received clarification to what is required, rather conflicting advice. Licensing requires all policies to be redeveloped and or revised to reflect what is current legislatively. As there is nothing prescriptive in the Regs about what should be in policies it is my responsibility to research and develop policies and procedures that reflect current standards, legislations etc and then to train and inform staff and committee…. I have found that tweaks are made to the Regs on a regular basis but we are not informed. Thus in the last couple of years I have reprinted the Regs every term and manually compared them to the previous printed set and then adjusted policies and procedures when there are changes in wording, clause numbers etc. This is a very time consuming and onerous but necessary task. Overall level of responsibility 198 Ms Simon's evidence was that there had been an increase in the overall level of responsibility for directors over the last five years: Whilst I am passionate about Early Childhood Education and high quality service and programme development and have always worked in the profession accepting the low remuneration as there were always so many positives to counter balance the negatives in the role. However, over the last five years I have begun to question the level of responsibility, the personal angst and the time required over and above the call of duty to ensure that our service is consistently a high quality, service of choice in our area. The level of remuneration for the role of Director shows a lack of understanding of the role and responsibilities. As Director I am a teacher, administrator, bookkeeper, accountant, HR manager, Industrial relations expert with an understanding of awards, counsellor, marketing and PR manager, trainer, IT expert, maintenance worker that cleans, maintains and fixes things in and around the preschool to save on paying for these things to be done. I cover release time for my staff, cover personal leave, LSL and any other leave as often as I can to keep costs down for the service. I am regularly in contact with other Directors and the overwhelming feeling and impression that I am getting is that of disillusionment and frustration. I fear that the trend of being unable to attract Early Childhood professionals to centres to be teachers or Director's is only going to increase and thus compromise the quality of service delivery unless the professional status of Early Childhood is raised and the remuneration is commensurate to our colleagues in the school system. AFEI 199 AFEI submitted that Directors and Authorised Supervisors allowances should only be increased by 2.8 per cent, in line with its proposals for general wage increases to teachers. AQCCC 200 The AQCCC adduced the following evidence from Ms Skoulogenis: The Union's proposed increase in the Director's allowance of $6,000.00 over the life of the proposed Award to be made in annual incremental increases of $2,000.00, is totally opposed by the AQCCC on behalf of its the members who employ Directors pursuant to the Awards the subject of these proceedings. There has not been any increase in the duties or responsibilities of a Director in respect of the day-to-day management of a centre, in recent years including during the life of the previous Awards, which would warrant or in any way substantiate any such increase in this allowance. The Union's proposed increase in the Authorised Supervisor's allowances of $4,500.00 over the life of the proposed Awards to be made in annual incremental increases of $1,500.00, is also totally opposed by the AQCCC on behalf of its members who employ Authorised Supervisor early childhood teachers pursuant to the Awards the subject of these proceedings. Once again, there has not been any increase in the duties or responsibilities of an Authorised Supervisor in respect of the day-to-day management of a centre, or the various duties imposed by the 2004 Regulation, which would warrant, or in any way substantiate, any such increase in this allowance. For example, I set out a table in the AQCCC has calculated the total percentage increase in the director's allowance and the authorised supervisor's allowance were the Union to be successful in its application in this regard: [Table is set out in Annexure B.] The reference to "units", is defined in clause 1(f) of the Teachers (Non-Government Early Childhood Service Centres Other than Pre-Schools) (State) Award , and clause 1(i) of the Teachers (Non-Government Pre-Schools) (State) Award , means "a group or class of children which does not at any one time exceed 25 children but which need not necessarily consist of the same children at all times." The Union has presented no evidence… which in any way justifies increases which range from 60.8% at the lowest end to 300% at the highest end. Increases at any such levels are frankly shocking, and cannot be substantiated by the Union. Further, the AQCCC is very concerned that its members who employ such staff pursuant to such Awards will not be able to justify passing such increases onto the family with children enrolled at their centres, who in any event will have great difficulty, (if not impossibility), in being able to pay increased fees seeking to "absorb" such substantial increases. I refer to paragraph 31 above, and I also confirm that the AQCCC opposes the implementation of any increases, which may be made to these allowances being retrospectively effective as from 1 January 2009. Once again, this would cause unfair financial stress upon its members, who would have to make very significant back payments of such allowances to any eligible such employees. Consideration 201 Whilst care needs to be taken to avoid double counting vis a vis teachers, the evidence, and the weight of the evidence, favours a conclusion that there has been an increase in the work value of Directors and Authorised Supervisors. The evidence included the following: · the increasing turnover of Management Committee members within the last 3 years has had the effect of increasing the workload of Director; · the involvement of Committee members in running centres on a day to day basis had diminished and contact with those members was now often after hours and in evenings; · increased involvement in family law disputes including custody disputes, including discussions with solicitor of parent, role of family counselling, support for single mothers; · significant government funding changes in last two years, requiring community consultation, DoCs meetings, transference of information to Management Committee, use of on-line system for updating information; · new on-line system for funding - must be accessed from home because work computer not capable; · increased focus by DoCS on compliance with Regulation; · more frequent compliance visits by DoCS; · expectations from parents to be provided detailed reports in relation their children's progress; · dealing with policy requirements for Children's Services Regulation; · role in managing process of indicators required for accreditation; · director with dual role as teacher required to work with committee as pedagogical leader; and · increase in responsibility of Authorised Supervisors. 202 The increase in work value of directors and authorised supervisors warrants an increase in the relevant allowances. NON-CONTACT TIME IEU's claim 203 The IEU's applications seek the insertion of the following terms in both relevant awards: Non-Contact Time (a) Teachers shall receive a minimum of 2 hour per week non contact time to perform programming and planning duties. Teachers will not be required to supervise children during this time. (b) Teachers appointed as Directors or Authorised Supervisors shall receive a minimum of 5 hours per week to perform administrative duties. Such time will be in addition to any entitlement under (a) above. 204 Mr Kimber summarised the IEU's position regarding this claim in his opening: So many of the things now required to be done have to be done in their own time and the argument is we cannot afford to have them off the floor and the teachers' response is that is not so, there are already arrangements made for coverage on floor, not by another teacher. This is a pragmatic development, two hours a week, about 20 minutes a day to help them find time within their regular work span to attend their other agency responsibilities. Again on the basis it can't be done or it costs money and we say it can be done and to the extent it costs money that is not a reason for rejecting the claim even if that was made good which it isn't. 205 Ms Heron summarised the position of the IEU in her statement: By definition preschools usually operate on hours and terms approximating schools. As schools operate about six hours per day, preschools would be able to accommodate the non-contact time without cost and almost all would already provide it. In relation to long day care centres, teachers (including Directors) may be rostered to perform face to face teaching for the whole of the 38 hours per week for which they are employed. Pursuant to clause 9.1 of the award no overtime is payable to a teacher in relation to preparation and programming duties but only in relation to duties required to be performed by the employer outside the ordinary hours of work, such as remaining late to supervise children who have not been collected. As a teacher is responsible for preparation, programming, keeping of developmental records, etc, if time is not provided during work time to fulfil these duties then they must necessarily be performed by the working of unpaid overtime. This is even more the case for Directors who have significant administrative responsibilities in relation to compliance with the Regulation, supervision of staff, review and updating of policies, meeting new parents, etc. 206 The IEU adduced evidence of a survey the organisation conducted amongst their members in 2009. Ms Heron summarised the results of the survey: The Union conducted a survey of non contact time received by teachers and Directors. A summary of the survey results, entitled ECS Survey Results 2009, is attached and marked as Annexure 3. This survey showed that, of the respondents, 82% stated that teachers in their centre received non contact time; and 91% said Directors/Authorised Supervisors in their centre received non contact time, with 73% of those who said yes to the latter question said the release was in excess of 3 hours per week. Of the respondents in private centres, 55% said teachers received more than one hour per week non contact time and 81% said Directors/Authorised Supervisors received more than three hours of non contact time. 207 Ms James gave evidence of her experience with members of her organisation: … there has been a small minority of privately owned centres who do not allocate any non contact time to directors. In this instance, directors are expected to complete administrative duties during their lunch breaks and outside of their regular working hours. Directors have complained about working 50 - 60 hours per week without any paid overtime. In my experience directors employed in preschools receive on average between one and two days non contact time to attend to administrative tasks. In relation to non contact time for teachers, the vast majority of centres I have visited allow non-contact time to full-time teachers of at least one hour per week and as much as fours hours per week, with an average of two hours per week. Community-based long day care centres tend to be more generous, in regards to the amount of allocated programming time, than privately owned long day care centres. 208 Ms Simon gave the following evidence regarding her non-contact time: I have been the Director of St Stephen's Preschool, Normanhurst for 6.5 years and in that time my role as Director has grown and changed dramatically. I confidently estimate my work time has increased by at least 10% per week. I believe that on average I work 10 – 15 hours a week over and above a 40hr week, including many night meetings, weekend fundraising, community events etc. Every holiday I would work at least 2 – 3 days just catching up on work from the previous term. This is steadily increasing each year. 209 Referred to earlier were the reasons as to why Ms Fanning left the early childhood education sector. The IEU submitted that the lack of contact-time was a contributing factor in teachers leaving the industry. Outlining the minimal non-contact time and increased encroachment of administrative tasks into her personal time, Ms Fanning stated the following: … we weren't allocated a great deal of administration time so a lot of the time the onus was on me to stay back after work or to take it all home, as well as doing all my programming and planning. … When I was working with KU there was a minimal administration time allocated so that if I didn't complete the task or if I didn't take it home to complete, or stay back after work, I just wouldn't get it done. The expectation is that you would be doing that as part of your duties, because there was very minimal administration time allocated. 210 The IEU made the following written submissions on the issue of non-contact time: As is noted in the evidence of Ms Heron, almost all preschool teachers (like school teachers) receive non-contact time as a matter of fact because the opening hours of preschools generally mirror schools, being about 30 hours per week maximum. Accordingly, whilst the non-contact time sought with respect to teachers will formalise the entitlement, it will not affect staffing arrangements or funding issues in the vast majority of preschools. For the same reason, preschools will also be minimally affected by the provision of additional non contact time to Directors and Authorised Supervisors. However, by contrast, in long day care some teachers are required to work 38 hours per week in direct contact work. It is obvious (and again it does not appear to be disputed) that without the provision of non-contact time, teachers and especially Directors simply have to do a very substantial amount of unpaid work in their own time. The non-contact duties associated with teaching and with Directing a facility of necessity will take a significant amount of time. Essentially, all programming and planning of lessons, and recording of progress (in individual portfolios) must be done by teachers in their own time. For Directors and Authorised Supervisors, this is in addition to the wide range of work to be done to ensure compliance with the various regulatory and accreditation regimes, as well as such duties as meeting with parents, preparing funding applications, etc. It is significant that the initial draft modernised federal award prepared by employers (including one of the respondents) to cover corporate early childhood centres throughout Australia included two hours non-contact time per week for each teacher. Such provision is already made in most states of Australia. It is not " fair and reasonable " that teachers in long day care centres have to spend a substantial and increasing amount of their own time undertaking, without pay, those duties which are a necessary incident of teaching such as teaching preparation, programming, and recording progress. With respect to Directors/Authorised Supervisors in long day care centres, the administrative and managerial duties which are required are obviously extensive and the evidence shows that Directors also spend a very significant number of unpaid hours performing these duties. The uncontradicted evidence is that Directors spend as much as 10 – 15 hours per week performing unpaid work. The amounts sought will not fully compensate Directors but will go some way towards alleviating the present unreasonable situation. If this approach is not seen as appropriate then the only other way to address the issue would be to amend the overtime provisions to allow teachers/Directors to claim overtime for such work because it is work "required" to be done (as a matter of fact). AFEI 211 The AFEI submitted the following in relation to non-contact hours: AFEI refers to the evidence of Mr Alchin, in relation to the clear distinction between the operation of preschools and long day care centres, on the issue of non contact time. AFEI opposes the introduction of non contact time as a mandatory condition in pre schools and long day care centres and instead submits that existing arrangements as to non contact time on an agreement basis continue. 212 The main basis of AFEI's opposition related to the costing of the claimed allowance and the ramifications that increased costs would have on centres. Mr Alchin said in his affidavit: The significant difference between the operation of preschools and long day centres should be made clear. A large majority of preschools are still operating 6 hours per day and for only 41 weeks each year. On each operating day there is non-contact time before the children arrive and after they leave, often up to 2 hours if you consider a normal work day. There is also 7 weeks each year where the children have holidays which are not annual leave for staff. They are required to prepare appropriately for the coming term. This provides appropriate non-contact time to plan activities and experiences and record children's abilities and progress without mandatory non-contact time. Regional and remote preschools may not be operating for a full week due to lower enrolments, their geographical location and the distances families need to travel. Preschools operating only 2 or 3 days will have significant difficulty meeting the cost of providing alternative staffing whilst a teacher has non-contact time and this would be exacerbated by minimum start requirements for casuals plus loadings. Mandating non-contact time within the award will place further pressure on these services' viability. CCSA advocates for quality outcomes for children. To this end it is important to have quality teachers in early childhood services. In the early childhood debate it is also important to consider the practical outcomes of what we do in relation to our profession and our practices in the context of how we support communities and families care for their children. To this end it is also important to consider children in all communities. It is especially so for children in regional and remote areas, and those attending different service types to have access to the same quality programmes. There are real and significant differences in the early childhood sector between service types, the capacity of families to pay and the ability of preschools to be sustainable within the current state funding framework. Further, I believe it is important that the issues raised regarding work value should be real and substantive and maintain the view that teachers are professionals with knowledge and capacity. In the main the regulations and curriculum framework support and assist the operation of services on a day-to-day basis. AQCCC 213 The AQCCC similarly rejected the claim for non-contact hours and in doing so relied upon the evidence of Ms Skoulogenis: The Union wants all early childhood teachers to have a minimum of two hours non contact time per week and teachers appointed as Directors or Authorised Supervisors to have a minimum of five hours non contact time per week, in addition to their entitlement to an allowance, (in addition to which, the Union seeks the exorbitant increases in such allowances referred to… above). If such time was granted, centres would have to totally reorganise their rosters in order to ensure that the child to staff ratios are maintained. Paragraph 52(1) of the 2004 Regulation sets out the qualified staff ratios. It states: (1) The licensee of a centre based or mobile children's service must ensure that the following number of teaching staff members are in attendance at the premises of the service while the service is being provided: (a) 1, if there are 30 or more but less than 40 children (other than school children) being provided with the service, (b) 2, if there are 40 or more but less than 60 children (other than school children) being provided with the service, (c) 3, if there are 60 or more but less than 80 children (other than school children) being provided with the service, (d) 4, if there are 80 or more children (other than school children) being provided with the service. In addition to being part of the qualified staff ratio, such teaching staff, (unless employed as a Director conducting managerial duties for at least for some part of the day), also be classed as one of the primary contact staff by the licensee as well. The Dictionary attached to the 2004 Regulation as Schedule 99, defines a " primary contact staff " member as follows: (a) any member of the staff of the service who is directly involved in educating or caring for children at the service, or (b) the licensee of the service at any time while the licensee is directly involved in educating or caring for children at the service, or (c) a trainee who is at the service as a formal part of studies at an educational institution, but does not include: (d) a person who is engaged solely in administrative, clerical or domestic duties at the service, or (e) a person who is at the service for the purpose of work experience, or (f) a volunteer who is assisting in the provision of the service. Accordingly, if an early childhood teacher is doing non-contact time work, this would no doubt fall within the definition in subparagraph (d), and the staff member could not be considered part of the primary contract staff in such circumstances. Therefore, unless, the centre is large enough, or has the resources to employ an additional staff member as a "floater" to take over the duties of a primary contact staff member in such circumstances, which is not the case for most of the AQCCC's members employing staff pursuant to the Awards the subject of these proceedings, this staff member would have to be replaced, during any such non-contact time. Even if the replacement primary contact staff member is an employee pursuant to the Miscellaneous Workers Kindergarten and Child Care Centres (State) Award , such an employee would have to be engaged for a minimum of three hours (clause 9(iv) (b) 4). Once again employers would be required to incur additional costs, which would be passed onto to the parents by way of further fee increases. I have already expressed the AQCCC's concerns in this regard. IEU's response 214 Ms Connell gave the following evidence in response to the employers' opposition to the claim regarding non-contact time: I do not believe [sic] agree with the analysis in… the statement of Vicki Skoulogenis, concerning the effect of the Regulation on the rostering of staff. Teachers and child care workers employed in long day care centres work in staggered shifts with different starting times to ensure opening hours are completely covered. For example, staff might commence work at differing times between 6.30am and 9.30am. In order to maintain DoCS ratios, staff should be replaced in the room when they leave the room to have their lunch break, but there is no requirement to replace them with a staff member of equivalent qualifications. Relief during breaks is possible because these breaks are scheduled during periods of the day when the full complement of staff are on the premises. In centres that provide non contact time for teachers, they do not have difficulty in allocating time during the hours when the full complement of staff are in attendance at the centre (in many centres this occurs between 9.30 am and 2.30 pm). I believe that many centres that do not currently allocate non contact time to teachers should be able to make use of existing staff during such times. The majority of preschools are now operating before and after preschool care to accommodate the needs of the community. In these Centres there is no before or after school non contact time available as children are arriving earlier staying until between 4.00 -- 5.00pm. Many teachers do not have a lunch break although it is in breach of the award, as ratios must be maintained so there is no non-contact time during the day. 215 Ms Howell responded to the employers' submission in her closing submissions to the Full Bench: Essentially the two respondents say it shouldn't be granted because it may cost a little bit more, particularly in the long day care centre sector where it is generally not available. Part of the argument that is not dealt with is it is not contested that teachers and directors do extremely significant numbers of unpaid hours as a result of not being granted some amount of non-contact time. So the respondents invite the Commission to simply say that unfair situation should continue because there may be some minor additional cost particularly in long day care centres if that measure is introduced. We simply submit that that is not an appropriate response. With the non-contact time, similarly distinction has to be drawn with the school sector and Miss Fanning gave some evidence albeit she teaches in TAFE, but whether one works in the school sector or TAFE by definition the hours of contact are limited and teachers by definition have a number of hours of non-contact time. Again, as with Miss Fanning, it is understandable that teachers in the early childhood centre eventually get tired of large amounts of unpaid overtime and go to a position in the school sector or in the TAFE sector where they can access non-contact time and do most of their duties within ordinary working hours. 216 The IEU challenged Mr Alchin's assertions regarding non-contact hours. Mr Alchin acknowledged that teachers did work at home and that some centres did provide non-contact time. However, whether they did provide non-contact time or not often depended on affordability, he said. 217 The IEU cross-examined Ms Skoulogenis on her evidence regarding non-contact hours: Q. Yes. And you're aware, are you not, that it is extremely common for teachers to have non-contact time in long day care centres in New South Wales as a matter of fact? A. Yes, I have seen the evidence, if that's what you're referring to. Q. Yes. A. There was a study, a survey produced. We haven't got any surveys produced to say that long day care centres give contact time or don't give contact time in New South Wales. It is extremely difficult for services, but each service does it their way. I'm not here to say that they don't give non-contact time, I can't say that, I can't swear to that in any way, because every service does it differently. I believe in community based centres that's a norm that that occurs. In long day care centres, depending on their structure, if they've got a floater, there's lots of different things that could occur in a long day care centre to either facilitate that request. But certainly with a lot of the new programmes, especially emergent curriculum, that programme time, it's on the floor, it's actually occurring as the children are engaging in that activity. … Q. So when you said a moment ago about every centre does it differently, the reality is that in long day care centres if the teacher is rostered the full shift on the floor, time has to be made to do the administration and the planning work and the programming work; that's true, is it not? A. That's correct. Q. And they can't do both at the one time as you suggested a moment ago, can they? A. No, that's correct. Q. So where do they find the time to do the admin, programming and planning work that's part of their job? A. That would be an agreement with their employee, that's what I said, that each service would engage their senior staff members, depending on their job description and what they do, it varies between all services. Q. But as I understand your evidence, you're opposed to the idea of an enshrined right to non-contact time, is that right? A. Yes, that's correct. Q. Well, how could you possibly be opposed to it if there are requirements on teachers to do this work? Surely you're not suggesting they should do it without pay in their own time, do you? A. It depends if they are put in that capacity. If they are an authorised supervisor they would be engaged in a different job description. But as an early childhood teacher, and if that's their only position that they are on the floor as an early childhood teacher, they can perform the duties as they are the staff members and depending on what programme they do in their service as well. So I think it would be unfair to have a blanket statement there that all early childhood teachers, because we're talking about this award, that they receive non-contact time. … Q. Well, what about the ones that are engaged, that do have programming, admin and planning responsibilities; what do you say about those? A. Can we not leave them up to the services when they're engaging their employees? Q. Well… what's happened… is that when there's no requirement to provide this time it's not provided and teachers are being asked to do it in their own time; you're aware of that fact, are you not? A. Absolutely, there could be people that are doing that. Consideration 218 It is apparent from the evidence that a large proportion of preschool teachers receive non-contact time whilst a minority do not. We note the survey of members working in the early childhood sector conducted by the IEU which showed that 82 per cent of centres responding already provided some non-contact time to teachers, and 91 per cent provided non-contact time to Directors. In relation to the Directors, 73 per cent received more than three hours per week of non-contact time. By contrast, in long day care some teachers were required to work 38 hours per week in direct contact work. We also note the concession made by Mr Alchin that he did not disagree non-contact time was an established practice in the industry. 219 The evidence suggests that non-contact time is at least a widespread practice, that teachers and directors do significant numbers of unpaid hours as a result of not being granted some amount of non-contact time, that the lack of non-contact time was identified as an additional factor which encouraged teachers to seek work in the school sector rather than in long day care centres, that no overtime is payable to a teacher in relation to preparation and programming duties but only in relation to duties required to be performed by the employer outside the ordinary hours of work, such as remaining late to supervise children who have not been collected. 220 These are strong reasons for introducing an award provision requiring employers to provide non-contact time. The employers' main objection is one of cost. Indeed, we consider most of the reasons for the employers' opposition to the whole of the IEU's claim is based on cost and so we will deal with that as a separate consideration. 221 Ms Skoulogenis also objected on the ground that centres would have to totally reorganise their rosters in order to ensure that the child to staff ratios are maintained and that, therefore, unless the centre was large enough, or had the resources to employ an additional staff member as a 'floater' to take over the duties of a primary contact staff member in such circumstances, (which Ms Skoulogenis said was not the case for most of the AQCCC's members), this staff member would have to be replaced, during any such non-contact time and that would involve additional cost. However, we note the evidence of Ms Connell to the effect that existing staff, not necessarily teachers could be utilised whist the teacher or director takes non-contact time. Ms Connell stated that: In centres that provide non contact time for teachers, they do not have difficulty in allocating time during the hours when the full complement of staff are in attendance at the centre (in many centres this occurs between 9.30 am and 2.30 pm). I believe that many centres that do not currently allocate non contact time to teachers should be able to make use of existing staff during such times. 222 We intend to vary the Awards to provide for paid non-contact time. For teachers the non-contact time will be a minimum of one and a quarter hours per week. For Directors and Authorised Supervisors a minimum of two and a half hours per week will be provided. COST IMPACT AND FUNDING 223 In her 2001 decision, Schmidt J commented on the serious concern the employers had about the cost impact of the claim. At [308] her Honour noted: The employers argue that such increases would price teachers out of this market and that the answer was to refuse any increases and for the government to amend the regulatory regime that requires the employment of teachers, so that fewer would be required to be employed. 224 It should be noted that both Mr Alchin and Ms Skoulogenis gave evidence for the respondents in the proceedings before Schmidt J. In these 2009 proceedings it was apparent that the singularly most important concern of these two witnesses was the affordability of the claim and not any industrial or philosophical objection to wage parity. This is illustrated by the fact that Mr Alchin, in these proceedings, went so far as to support teacher salary rates in the early childhood sector being at par or close to par with the salaries of teachers in the Independent and Public School system, but that was conditional upon sufficient funding being made available to support such teachers' salaries in the early childhood sector without resulting in some children and families being disadvantaged in being unable to afford higher fees. Mr Alchin also gave the following evidence: Q. I take it in your experience in the industry you don't have any difficulty accepting one of the reasons you have difficulty attracting and retaining qualified teachers in this sector is because they're getting paid a lot more money if they worked in the regular school system? A. Yes. Q. If you can increase the pay for teachers in this sector you will have a much better chance of attracting and retaining teachers to this sector, do you agree with that? A. Again, as a principle, the answer is yes. But we can't, in practice, remove that from the negative outcomes to services and therefore to children. … Q. In 2001 you were asked whether there was any prospect that you might go back to the early childhood education centre given you were formerly a teacher/director from that sector, and you said that you would not. You gave two reasons. You said: "May be it's one reason but a little broader. I don't believe that the people who are managing the services, whether they be teachers, trained or otherwise, are fairly remunerated to the responsibility and administrative duties that the role has. Essentially it has been my view for quite some time that the differential between the wage of a teacher, for example, and a teacher/director, or the same in the Miscellaneous Award, I don't believe the differential is in keeping with the differential responsibilities of those roles." You gave that evidence in 2001 as to why you didn't want to work in that sector any more. Was that what you thought? There wasn't enough pay for senior people, is that right? A. Not so much in the sector, but to take up those roles I think I was talking about. But in any event, I, yes, I still agree with those remarks. Q. So there still needs to be a substantial differential between the wages paid to teachers in this sector and those that occupy the positions of directors, correct? There needs to be a differential of some significance? A. Yes. Yes, I do agree. 225 In 2001, whilst Schmidt J was mindful of the assertions of unaffordability and the perceived risks of damage to family and childcare objectives generally if teachers' salaries were increased substantially, her Honour was not ultimately satisfied that there was any proper evidence to support these assertions and, in any event did not see that the Commission's role in fixing fair and reasonable wages and conditions of employment as being governed by arguments of unaffordability: see [320]-[329]. 226 Further, her Honour concluded that if the concerns about affordability were 'in truth seriously held' then there was a proper basis for expecting that an appropriate application would have been made to the Commission in accordance with the Economic Incapacity Principle, yet no such application was made: see [326]-[329]. More specifically, her Honour concluded (at [327]) that: Whilst very serious concerns were expressed by the employer witnesses about the consequences of granting this claim, no attempt was made to put on evidence which allow such concerns to be properly tested. Nor was there any attempt to meet the requirements of the economic incapacity principle in respect of any individual employer. 227 As the applicant submitted to the Full Bench, in spite of having been 'on notice' of the need for evidence regarding the consequences of granting the claim since Schmidt J's decision in 2001, the respondents did not adduce evidence of a quality that could assist the Commission in that regard. This was notwithstanding the ability of Ms Skoulogenis to gather data as to the financial position of the members of her organisation. However, that exercise had simply not been undertaken. 228 Accordingly, the applicant submitted that the inference was overwhelming, namely, that there was no such data to support the allegation of serious consequences and hence the Commission should not discount or otherwise modify the rates it is otherwise mindful to award to teachers in the early childhood sector on the basis of 'mere emotional assertions about "unaffordability"'. 229 The applicant also referred to Schmidt J citing with approval the remarks made by the Full Bench in Re Crown Employees (Teachers – Department of Education) Award 1970 AR (NSW) 345 at 514-515 and 521, to the effect that whilst it was not the Commission's role to award salary increases to attend to attraction and retention problems, nevertheless the Commission was under a 'duty' to 'pay regard to the public interest' and hence that the Commission should not act in a way that may serve to cause a deterioration in existing staffing problems: at [364], [391]-[392]. The applicant submitted, that a similar approach was both open and appropriate in these proceedings. It was submitted: The Commission, on the evidence, would be well entitled to conclude that if it sets wage rates for teachers in the ECS [early childhood sector] on par with, or close to being on par with, the rates paid to teachers in the public and independent school system, that this will, at the very least, ensure that there will be no further deterioration in the existing teacher staffing problems in the ECS. Furthermore, such a wage outcome would not be contrary to the public interest, given the Commonwealth and New South Wales Governments' clear and firm commitment to ensure that sufficient funding is made available to the ECS such that " cost is not a barrier " to the achievement of the Federal Government's laudable goals with respect to early childhood education. Increased funding 230 A consideration of the utmost significance in these present proceedings and which was not in 2001 is that both the Commonwealth and State Governments have increased funding of early childhood services very substantially over recent years. 231 Since 2006, the New South Wales Government has invested an additional $25.9 million into preschools. State Government funding of preschools and childcare centres increased from $113.4 million in 2006/7 to $164.2 million for 2009/10. 232 A New South Wales State Government announcement on 4 July 2009 provided for a further $29.8 million per annum in additional funding between 2008/9 and 2009/10 to preschools and child care services. This equates to an average increase per annum of $40,000 per preschool. 233 Further, as the applicant submitted, in so far as rural services were concerned, preschools had received very substantial injections of cash in the present financial year. Ms Connell works for Community Childcare Cooperative and works closely with 64 preschools in the Riverina Murray area. She concluded (in unchallenged evidence) that, in relation to those services, 88 per cent will receive additional significant increases of up to $130,000 as a result of new Commonwealth funding from 1 July 2009. 234 By way of particular example it was Ms Connell's evidence that Albury Pre School will be in a position to reduce its fees by 40 per cent in the current financial year due to additional funding. According to Ms Connell other centres in the area will also be reducing fees in 2010 by varying amounts. It was submitted for the applicant that there was nothing to suggest that the situation of these preschools was not typical of the situation throughout New South Wales. 235 Counsel for the applicant referred to Ms Heron's evidence, which it was said disclosed that the real cost of childcare to parents has been reduced very significantly over recent years as a result of increased funding. Ms Heron stated that an independent assessment by the Australian Bureau of Statistics concluded that the average net cost of childcare after subsidies had decreased by 31 per cent between September 2005 and September 2008. Centrelink had concluded that, between 2007/8 and 2008/9 the net cost of childcare as a percentage of disposable income fell by 22-25 per cent depending on income level. 236 In any event, it was contended by the applicant, contrary to the evidence of the respondents' witnesses, the real impact of the pay increases sought on the operation of long day care centres and preschools will be negligible. This arose because teachers were generally a small component of the staffing of any facility. An example was provided to illustrate the point: Assuming a centre has 30 students, it will generally have one teacher. The first increase of 5% for a teacher at the top of the four year trained scale will amount to about $3,300 per annum. This translates into an increase of about $110 per child per annum, or about $2.10 per week, per child. Even adding an overgenerous 50% for on costs, the total cost before rebates per child would be a maximum of about $3 per week. Even if coupled with the 2.8% SWC increase, the cost increase would be a maximum of $5 per week per child. In many cases at least some of this increase will be compensated by increased rebates from the Commonwealth Government. There is no probative evidence to suggest that an increase of this magnitude would "price" any parent out of the market, let alone impact upon the viability of any centre. 237 Accordingly, it was submitted, the speculation by the respondents' witnesses that some parents would no longer be able to afford to pay the fees if the wage increases sought were granted in full, (or, even in part) was completely without foundation. New evidence 238 After the Full Bench heard closing submissions, the IEU became aware, on 17 September 2009, of additional details of funding made available to early childhood services through the COAG process. The terms of the 'Bilateral Agreement on Achieving Universal Access to Early Childhood Education' ('BA') between the New South Wales Government and the Commonwealth were also released on that date. Leave was granted to the IEU to rely on the further material and the parties were granted leave to make supplementary submissions in relation to it. 239 The BA establishes the framework for the provision of funding from the Commonwealth contained in 'National Partnership Agreement on Early Childhood Education' ('NP ECE'), which was tendered earlier in the proceedings. It provides an explanation of how the increased funding will be allocated in early childhood services in New South Wales with specific strategies for achieving the agreed outcomes and benchmarks and the reporting mechanism. 240 Clause 4 of the BA provides for the Commonwealth to make payments to NSW subject to the State meeting agreed 'Performance Benchmarks' and 'Deliverables'. The clause states that if New South Wales does not meet the necessary objectives 'the Commonwealth will consider whether or not further payments should be made and the timing and amount of such payments.' Clause 5 also provides that the Commonwealth reserves the right to withhold or discontinue funding if New South Wales does not fulfil its obligations under the BA or the NP ECE. 241 The Benchmarks include such matters as the percentage of children having access to an early childhood education program for 15 hours per week, 40 weeks per year (to be 95.0 per cent by 30 June 2013 - 81.9 per cent as at September 2008); the number of teachers delivering early childhood programs who are four year university trained and early childhood qualified (5,624 by 30 June 2013 - 4680 as at September 2008); the proportion of disadvantaged children enrolled in (and attending, where possible to measure) an early childhood education program (95 per cent by 30 June 2013); and the proportion of Indigenous children enrolled in (and attending, where possible to measure) an early childhood education program (95 per cent by 30 June 2013). 242 The BA sets out the increase in the Pre School Investment and Reform Package: 'Action A'. Under that Package every service is funded for every child that attends the preschool, up to two days per week. Total expenditure under this reform package rose from $78 million in 2007-2008 to $90 million in 2008-09. 'Action D', details the additional funding increases based on Local Government Areas and specific increases for low income families and Indigenous Children. The amount of the funding increase for each preschool service is based on the local government area in which it is located (previous funding ranged from $780 - $1600 per annum. It has been increased to $1200 - $2986 per annum.) These increases in funding have already flowed through to services. 243 'Action J' is a commitment by New South Wales to introduce a new Teacher Costs Contribution Scheme. This involves a commitment to fund each service that employs a teacher an additional amount of $6000 per annum for each three year trained teacher, $8000 per annum for each four year trained teacher employed in the service and an additional $1000 payable for services in remote areas. These monies will be available to all licensed services with an implementation date of July 2011, including for profit services, for each teacher employed to deliver the early childhood program. This funding is part of the total funding package referred to in the immediately preceding paragraph. 244 'Action M' details additional increases in funding of $10.2 million in 2008-09, an additional $20.3 million in 2009-10 and $25.9 million in 2010-11 onwards. These funds are to be invested in community preschools to ensure all children have access to a preschool program run by a qualified teacher. They are not part of but additional to the funding increases referred to in the immediately preceding two paragraphs. AFEI's response 245 In responding to this new material Mr Boyce, for AFEI, raised two matters. First, he referred to cll 4 and 5 of the BA. He submitted that in no way was the level of funding stipulated within the BA guaranteed to be flowed on to early childcare providers in New South Wales. Mr Boyce submitted that throughout his evidence, Mr Alchin was resolute in the fact that whilst various commitments towards funding was positive, it in no way guaranteed funding in the future. The information contained within the BA did not impact on Mr Alchin's evidence, it was submitted. 246 The second matter related to earlier evidence of Mr Alchin where he indicated that whilst his organisation was pleased with the additional funding, he was concerned about how the resource allocation model would work: So that, in relation to funding generally, when that, as that picture became clearer about the funding that was coming out from the State Government, which we're very, very pleased about and have been advocating for as an organisation for some time, government needs to step up to the plate and really address the affordability issues in pre schools, and that will ease the situation for many pre schools but will not fix the situation for some regional and remote services in particular. But even though we are pleased with that result, we now have a question about how the resource allocation model is going to apply in relation to the COAG's requirement that there be 15 hours a week pre school provided through the system. So both ourselves, and other people, organisations, are both saying we now have this significant concern, because the way the resource allocation model works is that essentially it's saying a maximum, or has been saying a maximum of 2 days pre school that will be funded for each child. If you're looking at, for example, 20 places for a pre school, for example, and if that pre school is full, that is all those 20 places are filled in that week, a centre might commonly then set up to say: Okay, there will be, Mondays/Tuesdays, 2 days. Thursdays, Fridays, two days. And Wednesday is a single day of attendance with a total of 50 enrolments. Now the way the resource allocation method works is you then take the Local Government area allocation set up by DoCS and you will multiply it by what they then call the cap which is, say, no more than 50. There's a significant concern now with the implementation of this money coming through from COAG that in practice that that cap figure will reduce because the requirement for 15 hours would have commonly been, again in the example of a 20 place pre school, the child attends two and a half days a week at the beginning of the week and the back half of the week is another two and a half days, to have only a total enrolment of 40 children instead of 50. When you use the resource allocation model for that calculation, your cap is reduced from 50 to 40. AQCCC's response 247 In her written response, Ms Kenneally made the following pertinent points: (i) The Bilateral Agreement is an "incentive scheme" in respect of privately operated childcare centres operating a preschool program, in order to attempt to achieve by 2013, the goal of giving every child access to early childhood education programs in the 12 months prior to full-time schooling. Such a program is to be delivered by a four year trained university qualified teacher for 15 hours a week, 40 weeks a year. (ii) Privately operated child care centres, (whether or not they provide preschool programs), will still otherwise receive the indirect funding through the Federal Government's Child Care Benefit (CCB) scheme. Further, those families who meet the work and study test, will continue to receive the Child Care Tax Rebate (CCTR). Any privately operated centre electing not to participate in the Teachers Costs Contribution Scheme, will currently not lose the indirect funding available to the parents through the CCB scheme, who enrol a child or children at any such centre. (iii) Privately operated child care centres operating with more than 29 children, which are required by the Children Services Regulation 2004, to employ one or more early childhood teachers, and which have a preschool program, will be entitled to apply for the funding. Under the Teachers Costs Contribution Scheme, the funding will be $6,000.00 per annum for each 3 year trained teacher, $8,000 per annum for each 4 year trained ECT, and an additional $1,000.00 for each remote service.… However, such funding will not be available in time to assist those centres governed by the Awards in question, in covering the proposed increases sought by the Applicant in these proceedings…. Any such increases will have to be initially passed onto the parents by way of increased fees. (iv) Privately operated child care centres operating with less than 29 children, will be entitled to the subsidy up to a limit of one early childhood teacher ('ECT'). Any such smaller centres, if they decide to participate in the Scheme, will then have to meet the shortfall or difference in the wages, (and allowances if applicable), of any such ECT that they may employ. It is therefore doubtful that such centres will be able to afford to do so, particularly if the wages and allowance increases currently being claimed pursuant to these proceedings, are granted in whole, or in part. That is, the "incentive" will unlikely to be sufficient to encourage such centres to employ an ECT. (v) Given the accounting requirements referred in the Bilateral Agreement, it would appear that child care centres which employ more than 1 ECT, will only be eligible for the Teachers Costs Contribution Scheme in respect of those ECT's who are " in a primary contact teaching role or a leadership role in the design, development and implementation of the developmental educational child program" . Therefore it appears that not all ECT's employed by a child care centre may be eligible to claim the funding. (vi) The Teachers Costs Contribution Scheme will not commence in respect of privately operated child care centres until sometime in the 2011-2012 financial year, that is, not until on or after mid 2011. 248 In responding to the applicant's submission that in the next three years ample funding will be available to ensure that quality teachers are attracted and retained in the early childhood sector, Ms Kenneally submitted: a. There are no proposed increases, or changes, to be made to the indirect funding provided by the Child Care Benefit, which will assist privately operated child care centres to fund the proposed wage and allowance increases claimed by the Applicant in these proceedings. Nor are there any anticipated changes to be made to the Child Care Tax Rebate scheme for the eligible families pursuant to the work and study test. b. There may be some assistance for eligible privately operating child care centres from the Bilateral Scheme; however this will not come into place until at mid 2011 at the earliest. c. The "incentive" provided by the Scheme will be unlikely to attract smaller centres employing ECT's, as it will come nowhere near close to compensating them for the costs of engaging such an ECT, and the difference would have to be paid for by the parents via increased fees. Consideration 249 It seems to us that there are aspects of the funding arrangements between New South Wales and the Commonwealth that are 'work in progress' and the form of the arrangements as they will apply in practice has not been finalised. 250 Nevertheless, it cannot be doubted that there has been a massive injection of funds into early childhood education. That injection is obviously not going to entirely pay for the salaries of teachers, but across the industry it will make a significant contribution in that respect. That contribution, however, will not take effect until 2011. 251 AFEI has expressed the concern that the level of funding stipulated within the BA has not been guaranteed to be flowed on to early childcare providers in New South Wales. In the strict sense that is so, but we do not consider the safeguards the Commonwealth has proposed are anything other than normal prudential provisions and the milestones or benchmarks, likewise. They do not signal a likelihood that the funding would be withdrawn on a whim and given the critical importance of the BA to achieving universal access to early childhood education we would expect that both parties to the agreement would do their utmost to make it work. 252 In any event, the additional funding is but one consideration in these proceedings and although it is an important factor in favour of increasing salaries for teachers, a decision to do so does not revolve around that sole criterion. 253 In 2001 the respondents contended that the increases sought at that time were not affordable - could not be sustained - and that the consequences would be further depression of the job market because employers would seek to reduce their licence numbers below 29, at which point they would not be obliged to employ teachers. Alternatively, it was submitted that the increase in salaries would have to be passed on to families thereby putting financial pressure on families and perhaps undermining the very objective of childcare education. 254 Essentially, the same contention is made in 2009. But no attempt was made by the respondents to demonstrate any negative consequences flowing from the decision of Schmidt J in 2001 and no sufficiently probative evidence of incapacity or severe financial stress amongst operators of centres was produced in these proceedings, notwithstanding the criticisms made by Schmidt J of the absence of such evidence in the proceedings before her Honour. The failure to adduce quality evidence about incapacity to pay was in the face of a very strong evidentiary case put on by the IEU. 255 Moreover, the additional funding for early childhood education that has been provided, or is in the pipeline, weakens even further the respondents' case about unaffordability, although as we have commented, much of that funding will not be available until 2011. 256 We do not consider that the respondents have established a case on economic grounds that an increase in salaries should be limited to those flowing from State Wage Case adjustments. Nor do we consider the respondents have made out a case which would otherwise limit the wage increases that would be appropriate having regard to the provisions of s 10 of the Industrial Relations Act 1996 to provide fair and reasonable rates of pay. It has not been established that there is a particular economic vulnerability in this sector that would result in a significant amelioration of any adjustment to salaries, but we consider it is appropriate to take into account, on economic grounds, the nature of the industry and the particular circumstances of the enterprises that continue to fall within this jurisdiction. We will discuss those matters further below. AMOUNT OF INCREASE Salaries 257 The applicant seeks three wage increases of 5 per cent to be operative respectively from the date of decision, 1 January 2010, and 1 January 2011 plus the immediate application of the 2.8 per cent wage increase granted in the State Wage Case 2009. 258 We have already indicated that grounds have been established in the Commission's Special Case and Work Value principles for increases to be granted and that there is capacity for employers under the Awards to sustain a fair and reasonable increase. 259 In the 2001 decision, Schmidt J considered the question of the amount of increase and in so doing stated: The difficult question which the Commission must come to grips with here, is how the demonstrated undervaluation of this work is to be remedied. I am well satisfied that a case has been made out for significant wage increases and that a clear assessment of proper rates for the teachers employed under these awards, cannot be made in a context where rates paid to other similarly qualified and experienced teachers is ignored. 260 Similarly, on this occasion we cannot ignore the rates paid to the counterparts of preschool teachers employed in Catholic and Government schools. As we earlier noted, even if we were to award the full extent of the increases sought, that would still leave early childhood teachers approximately six per cent behind the teachers as of 1 January 2011. 261 There was insufficient comparative analysis to allow us to conclude that the work value of preschool teachers is precisely the same as their counterparts in Government schools: it may be less, it may be more, it may be the same. Whatever may be the case in that respect, it is patently apparent that it is not a fair and reasonable state of affairs, nor in the public interest, to have preschool teachers being paid 21 to 27 per cent less in salary. This is especially so in circumstances where there is a critical shortage of university trained preschool teachers at a time when a concerted effort is being made by governments to provide universal access to early childhood education. The evidence strongly suggests that unless salary levels are increased teachers will not be attracted to work in preschools and attempts to achieve an exponential improvement in childhood education standards will fail. 262 Despite the poor quality of the respondent's evidence about the unaffordability of the claim, we are required to consider the economic impact of our decision. This requires an assessment of both general economic impacts and the consequences for the industry affected by our decision. In this respect, Mr Alchin stated: With cost, funding and competitive restraints still confronting the sector, the increases to wages sought by the IEU will cause difficulty for some services, particularly small regional and remote services in that: (a) staffing costs can represent up to 85% of overall costs in the not-for-profit sector; (b) the flow-on of these increases to wages on-costs will be significant; (c) the Regulations set minimum staffing levels and maximum numbers of children, i.e. revenue cannot be raised by increasing turnover, production (more children) or operational restructuring; (d) the only avenue to increase income is via fee increases to parents. In recent years this has lead to less affordability for families and lower utilisation rates for preschools, particularly for regional and remote centres, some of which are already reduced to operating only 2 or 3 days per week. (e) for some preschools who are already facing viability issues as a result of this the flow-on may mean not replacing teachers who leave the centre or making an existing teacher redundant. (where licensing allows e.g. fewer than 30 children) (f) this will mean fewer teachers being employed in this sector and reduced outcomes for children. 263 The evidence of Ms Skoulogenis included the following: · most private long day care centres, (whether or not they are owned and operated via a constitutional corporation or via a sole trader or partnership), are still, most often, small family businesses where the owners work beside, and with, their staff. · if parents cannot afford to pay any increased fees which will result from the centre owner's attempt to fund such pay increases, such parents may not be able to afford to keep their children at such centres. If this is the case, then such children will have to be cared for by their parents or family members, or they may have to be placed into family day care, or unregulated, unmonitored and unaccredited "back yard care". This type of care could operate to the behavioural and developmental detriment to such children, who will not obtain the many recognised benefits associated with enrolling their children into child care centres. 264 An additional consideration, which recommends a more conservative approach than what might otherwise prevail, is that the funds to provide an incentive for the employment of more teachers do not become available until 2011. 265 In deliberating on our approach to the amount of increase we have considered the alternative of an interim increase so that we might review its impact after, say, six months. However, the fact is that the IEU has made proper case for three year final awards. We note the opportunity available to any employer to make application under the Commission's 'Economic Incapacity to Pay' Principle. 266 We have decided to award three wage increases of 4 per cent to be operative respectively from the date of decision, 1 September 2010 and 1 September 2011. We do not propose to award an additional 2.8 per cent as a State Wage case increase in the first year. In this respect, as we earlier indicated, we have taken into account, on economic grounds, the nature of the industry and the particular circumstances of the enterprises that continue to fall within this jurisdiction and in doing so we have concluded that a sustainable annual adjustment to salaries in the first year is limited to 4 per cent. Director's and authorised supervisors allowances 267 The applicant has sought increases ranging from 60.8 to 300 per cent in these flat money allowances. These are very substantial increases, however the rationale for the amount of increase was unexplained. 268 Whilst we have accepted that the work of directors and authorised supervisors, separate from their work as teachers, has definitely increased in value, we do not consider the change in work value warrants increases of the magnitude sought. We propose to increase these allowances by a uniform 12 per cent across the board. The increase will be paid in instalments of 4 per cent on the operative dates applicable to the salary increases. ORDERS 269 The Full Bench makes a new Teachers (Non Government Early Childhood Service Centres other than Pre Schools) (State) Award and a new Teachers (Non Government Pre Schools) (State) Award in terms of the following orders and directions: (1) Rates of pay are increased by 4 per cent from the beginning of the first pay period to commence on or after the date of this decision with two further increases of 4 per cent to apply from the beginning of the first pay period to commence on or after 1 September 2010 and 1 September 2011, respectively; (2) The allowances applicable to authorised supervisors and directors are increased by 4 per cent from the beginning of the first pay period to commence on or after the date of this decision with two further increases of 4 per cent to apply from the beginning of the first pay period to commence on or after 1 September 2010 and 1 September 2011, respectively; (3) The following provision shall be inserted in each Award: Non Contact Time (a) Teachers shall receive a minimum of one and a quarter hours per week non contact time to perform programming and planning duties. Teachers will not be required to supervise children during this time. (b) Teachers appointed as Directors or Authorised Supervisors shall receive a minimum of two and a half hours per week non contact time to perform administrative duties. (4) The IEU is directed to file and serve draft awards reflecting orders 1 to 3 inclusive hereof within 14 days of today. (5) In the event of agreement on the terms of any final orders the orders shall be made in Chambers. (6) In the event of any disagreement as to the terms of any final orders the IEU has liberty to apply on short notice to have the disagreement listed for resolution by the Full Bench. __________________________________________ 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.