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Fair Work Act 2009                                       1057211




AM2018/18 AM2018/20



s.156 - 4 yearly review of modern awards


Four yearly review of modern awards



Children's Services Award 2010

Educational Services (Teachers) Award 2010




9.33 AM, FRIDAY, 9 AUGUST 2019


JUSTICE ROSS:  Can I have the appearances, please.


MS L SAUNDERS:  May it please, Saunders, initial L.  I appear for the IEU.  Mr Wright and Mr Dowdle instructing.


JUSTICE ROSS:  Thanks, Ms Saunders.


MR S BULL:  If the Commission pleases, my name is Bull.  I appear for United Voice with my colleague, Ms Dabarera.


JUSTICE ROSS:  Thank you.


MR J ARNDT:  If the Commission pleases, Arndt, initial J.  I appear for the parties who's been referred to as the ECEC employers, Australian Childcare Alliance, Australian Business Industrial, New South Wales Business Chamber, National Outside School Hours Care Services, and the Junior Adventure Group.  I appear with Ms Whish.


JUSTICE ROSS:  All right, thank you.


MS N SHAW:  Shaw, initial N, for AFEI.


JUSTICE ROSS:  Thank you.


MS I ARRABALDE:  Arrabalde, I, appearing as an individual.


JUSTICE ROSS:  Thanks, Ms Arrabalde.  I just want to cover off a couple of preliminary things.  We published a statement on 5 August which brings together the responses of the various parties to the various questions we've asked in two background documents.  And I'd invite you to make any corrections to that document when you come to make submissions.


Secondly, we have received correspondence from the IEU about the proposed approach and order.  That is that the IEU, or Ms Saunders, you would start, then any parties in reply to what you say and then you in response, then we'd go to the ACA submissions.  Similarly, any replies from any other party, and then you in response.  Then we'd go to United Voice and its claims, any interested parties in response and then its response.


Now Ms Arrabalde, given that your claims are similar with United Voice, what we might do is after Mr Bull goes, if you can then say anything you want to say and then we'll deal with anyone's replies to those, and then you'd both have an opportunity to respond.  Is everyone content with that order and approach?




JUSTICE ROSS:  All right.  The last thing was to, just so we can work out breaks, if we could just get a – and I know these things can be difficult, but get a broad indication as to how long each of you expects to be?


MS SAUNDERS:  I don't think I'd be more than half an hour regarding the response.


JUSTICE ROSS:  All right, thank you.  Mr Arndt?


MR ARNDT:  I don't propose to be long at all, less than ten minutes.


JUSTICE ROSS:  All right.  Most of the issues are crystallised.  It's really an opportunity for you to respond to what others say, as well.  Mr Bull?


MR BULL:  Similarly.  Look, it's all been written and said. We don't propose - - -


JUSTICE ROSS:  Yes.  You're telling me.


MR BULL:  Yes.  I know.  Look, I wasn't going to want to say a great deal.  I'll respond to others, and obviously questions from the Bench so - - -


JUSTICE ROSS:  I think we've asked the questions that we've thought of and we've got your responses.  It's really, if something comes up in the replies, that'll be the issue for us.


MR BULL:  Yes, well, I'll try and focus on the responsive material rather than making speeches and so forth.


JUSTICE ROSS:  Certainly.  All right.  Ms Arrabalde, are you in a similar position?


MS ARRABALDE:  I have put together something to say that may be ten to 15 minutes.


JUSTICE ROSS:  No, that's fine.


MS ARRABALDE:  Thank you.


JUSTICE ROSS:  All right, let's get underway.  Ms Saunders?


MS SAUNDERS:  I might start with the casual payment plan, or the clarification clause, really.  There's not a tremendous amount that needs to be said about this.  Importantly there is no substantive dispute that the IEU's interpretation is correct, which is unsurprising.  If there's any other interpretation it leaves people potentially working for free.  I understand the AFEI doesn't quite agree with it, but otherwise doesn't oppose it.


The employer parties have in their, I think, final response to the final background document, proposed alternative drafting, the suggesting being moving to calculating an hourly rate.  What that is, is a substantive change to the award.  It would lower the – and this is pretty marginal.  Everyone agrees this happens pretty infrequently, that people are engaged for the short period of time, but where it does happen it would lower the amount that a person who works for more than a quarter but less than half a day would receive.  It is not an appropriate response to the IEU's claim which is clarifying and ensuring that what the award, as set, was intended to do, is clearly able to be understood as doing that.  That's all I wish to say about the casuals unless there was something specific.


Turning now to teacher directors, this clarification, and we say it's a clarification that involves a variation to both awards, the proposed drafting in both are avoidance of doubt clauses.  We refer to them as directors.  In some of the evidence they're referred to as centre managers.  It's the same position.  It's the person who is responsible for administrating the operation of the early childhood service.


There's a little bit of confusion perhaps as to what the directors do and what the point of the IEU's claim is, but the evidence that the Bench has is firstly from the IEU – sorry, the actual directors of services who are themselves teacher qualified, and who varyingly work either entirely in an officer, superintending the program, or in the case of Ms Mravunac, does do the portion of face to face teaching, each week.  In her case it's 15 hours, so a relatively small portion of the working week.


Ms Mravunac's evidence is also significant for the fact that she evidences the dispute that arises from time to time.  As Ms James sets out, the standard industry practice is to – for the teachers appointed as a director, they remain engaged in accordance with the terms of the Teachers Award.  Saying "covered" is not helpful, it's how they're treated by the employer as a matter of fact that I refer to there.


JUSTICE ROSS:  In relation to – yes, as you point out there's a reference to, it occasionally gives rise to some dispute.  Has that ever come here?


MS SAUNDERS:  I don't believe so, your Honour.  Ms James - - -


JUSTICE ROSS:  Because I couldn't find any - - -


MS SAUNDERS:  No, it's never been arbitrated as far as we're concerned.




MS SAUNDERS:  It doesn't arise terribly often.  In part that's because service directors, as the ECEC employees as we're calling them, witnesses show, they tend to be paid above award rates.  They're senior employees.


JUSTICE ROSS:  Does that give rise to a question about whether the change is necessary?


MS SAUNDERS:  It would.  And that question is answered by reference to Ms James' statement which says that while it's not earth-shatteringly significant, it's not coming up every day.  It does happen with some regularity.  And it's about a pretty fundamental matter, a person's rate of pay, and their associated conditions because it's not the case that teachers in early childhood centres are engaged in precisely the same way as educators engaged in the Children's Services Award.


There are significant differences in terms of, in particular, the notice required to change their roster, for one thing.  And so it has flow on effects.  And although it's effecting a small amount of people, sort of is an indication this is probably what the order's meant to say, it is significant enough that the changes is warranted.


JUSTICE ROSS:  All right.


MS SAUNDERS:  I should say, Ms James wasn't cross-examined at all on any of her evidence.  It's significant both for the nature of the dispute that arises and her discussion of the work that teachers who are engaged as directors, including those who are wholly office based, for a short hand to do.  My friend cavils a little bit with her evidence on the basis that it should all be rejected out of hand because it's hearsay and opinion.  Some of it is.  Most of it's not.  To the extent that it's opinion, Ms James is, herself, an early childhood teacher who worked for a long time in the industry.  She is the organiser for early childhood teachers employed by the IEU New South Wales.  She works in the sector.  She is uniquely placed to give an overview of things that are happening.  And her evidence – she is capable and probably uniquely qualified to give opinion evidence or evidence of the general survey kind that she has, and it should be accepted given it's not been the substance of any challenge.


The employer witnesses, and I think this is dealt with in short form in the statements but as an overarching theme most of them don't employ teachers as directors.  They tend to be – Ms Viknarasah is a good example of this.  They tend to be smaller services that only need one qualified teacher, and they have that person working on the floor delivering the pre-school program usually.  For funding requirements they don't overlap.


Those that do employ teachers as directors, they are consistently paid above award.  Ms Tullberg gives evidence of this.  I don't need to take Your Honours, Commissioner, to this but the reference for the record is PN3649 to 3653.  Similarly, Ms McPhail, PN2898.  Ms McPhail's director is only diploma qualified but she is being paid above the rate for a level 12 teacher with the director's allowance, so even above the highest it could be.


This is significant for two reasons.  It means that the employer witnesses don't have a tremendous amount to say about what teacher directors actually do.  And it raises issues with accepting the ACA's position – I do apologise.  When I say "ACA," I mean the parties represented by ABI.


ECEC employees is probably a little broad.  We are in fact talking about the full profit long day care sector, a small proportion of the industry with some unique features, but I just mention that in passing.


Where it's said that this will have some sort of tremendous cost impact by both the ACA and AFEI, there's no evidence that that's the case.  We say where there are centres paying directors at award rates who are paying the lower Children's Services rates, that's not a proper cost impact assessment because those people are not properly applying the awards, we assume through inadvertence.


What one can take from the evidence and the surrounding legislative framework is, as a few general propositions, if we have services who are delivering both education and care, it is not appropriate to refer to them as "childcare," as the ACA submissions incessantly do.  These are educational services.  That's why they have and are required to have qualified teachers engaged.  They are similarly required by law to deliver an educational program.  It is not child-minding, it's a structured system whereby children are taught crucial skills.  It's different to what you would see in a high school, what they taught there, obviously.  These are three to five year olds.  They're not quite ready for the progression to Shakespeare but they are learning pre-numeracy and pre-literacy.  And that isn't controversial between the parties.


The director has a key role in the service and it's superintending that educational program.  There's a collection of functions attached to that.  Some are administrative and some involve supervising staff generally, but there is a mentoring role there.  There is a role in designing the educational program.  Some of them are teachers themselves.  They have broad oversight and control of the delivery of that program.


It is going to necessarily vary, centre to centre, precisely what their day to day duties are.  It's going to vary based on how the centre structures its operations, itself.  We have centres such as – some of the employer witnesses gave evidence where the centre owner is themselves a teacher and takes a very hands on role.  Others, not.  It's also importantly going to vary, director to director.  There are directors who have degrees in human resources, for example.  One of the employer witnesses is a case in point.  They may play less of a role because they are less qualified in the teaching aspect of a director.


But where we have a teacher, a qualified and registered teacher, someone who is able to work as a teacher, when they're engaged as a director there is no real controversy that they would use those skills in their role, not incidentally but as an integral part of the job.  And as  a matter of common sense those persons are going to be the kind of directors, even in the office, that play that more engaged role with the pedagogical side of the role.  It would be foolish to suggest that they are not really working as a teacher.


I'm going to turn to the award in a moment but there is a reference in my submissions to these people, teacher directors, counting as teachers being engaged for the purposes of that legislative compliance.  I wanted to provide the Bench with an extract of the national regulations which I don't think has yet been put on the record.  Given that we're going to be speaking about it for most of the day, if I could provide the three copies.


JUSTICE ROSS:  Thank you.  Do we need to mark it or?


MS SAUNDERS:  Perhaps for identification but I'm in your Honour's hands.


JUSTICE ROSS:  All right.  Just MFI1.



MS SAUNDERS:  So this is when we talk about the national law.  This is obviously the national regulations, but this is the source of the ratio requirements that your Honours, Commissioner, have heard quite a lot about.




MS SAUNDERS:  If I can start with the first page, and I'll just take your Honours through it chronologically, section 11.




MS SAUNDERS:  Is the meaning of "in attendance," which applies only to early childhood teachers, as we'll see shortly.  They have to be physically there, unsurprisingly, and doing one of a range of things, only one of which is working directly with children.  You can be in attendance for the purposes of the national law and not actually teach a child hands on.


JUSTICE ROSS:  So they're referring to 11(b)(ii)-(v)?






MS SAUNDERS:  13, by contrast, the meaning of "working directly with children," and that's the phrase that is used at 11(b)(i).  It has a specific meaning in the Act and that is, you have to be again physically there and directly engaged working with the child as a teacher.


Over the page, I'm afraid these aren't paginated but it should be reasonably easy, section 100 – or 11 at the bottom of the – sorry, part 44 starts at the bottom of the page.  If we go over we get to division 3 of that part.  And this sets out the educator to child ratio.  This is one of the two types of ratio that the national law describes.  This is the - - -


JUSTICE ROSS:  This is starting at 121 and following?


MS SAUNDERS:  Yes, your Honour.




MS SAUNDERS:  123.  122, working directly.  That's where that definition comes into play again.  And 123 is setting out the numbers, one to – one educator to however many children, based on age.  So this the first ratio, deals with actual bodies.  People will need to physically be there with the children.  There are qualification requirements attached to that.  It's predominantly concerned with what's referred to in these proceedings as "educators."  I should say for the avoidance of doubt that the term, "educator," within the national law is from time to time, used to encompass teachers, as well.  It's not used in the bifurcated way that we are dealing with it for convenience here.


Turning over the page again, division 4, in passing, deals with those minimum educational qualifications.  Certain numbers of diplomas and certificates with an early childhood teacher counting at 1263, if they are actually there.  That division 5 at the bottom the page mark, page 81, we turn to the second ration requirement for the national regulations prescribed.  This is the requirement called, actual teachers.  This is a slightly more complex proposition and this is not so much about bodies being there.  131(3)(1) deal with smaller services.


JUSTICE ROSS:  133(1) - - -


MS SAUNDERS:  I'm sorry, 130, and 131.




MS SAUNDERS:  And your Honours, Commissioner, will see there that there are requirements to be in attendance.  This is not concerned with, as strictly as the previous ratio, is not concerned with someone physically being there to have contact with the child.  This is access to a teacher, using their range of teaching skills which include those non contact planning roles.  Some of what I'm saying, I should say, is relevant to the later claims but I'm just going through it now for convenience, to avoid having to jump around.




MS SAUNDERS:  At 132 we get to the smaller to medium centres.  This is where the requirement bifurcates.  There's two options.  The first is, you have to have an early childhood teacher in attendance for certain periods of time, so physically there and doing teaching work of some kind.  Or alternatively, as we see in 132 sub-section 2, you don't have to have a teacher physically there if you employ one full time.  And that continues as the ratios, as the number of children scales up.


JUSTICE ROSS:  So is the proposition, you could meet the requirement of regulation 132 if you're a medium sized early childhood centre.   You could meet that by employing an early childhood teacher on a full-time basis as a director?






MS SAUNDERS:  And the rest of this extract – there are some specific state based savings provision.  That's what the rest of this extract is.  I just provide them for completeness.  The ratios vary fractionally.  But that's the point.  An office based director is, for the purposes of the national law, as much an early childhood teacher as someone who is working hands on with the children.  This just demonstrates the central error in what underpins the employer contentions that somehow if you're an office based director you're not working as a teacher.  You are for the purposes of the national law.  You are, as a matter of common sense.  No witness disagreed with the proposition that these teachers would use their skills as teachers in that role.  Many of them seemed surprised to be asked what would seem such an obvious question.  There is no magic in it.  You do not suddenly stop being a teacher because you've been appointed to that supervisory role managing the whole implementation and operation of an educational program.


Can I take your Honours, Commissioner, to the awards now, just to make good the proposition that this is what the current state of play is.  Starting with the Teachers Award, Modern Award 77, clause 4 deals with coverage.  4.1, not that it's tremendously surprising, employers in the school education industry, children's services, and early childhood education.  So the award expressly contemplates having application in early childhood.  Unsurprisingly, it does.


If we look at 4.7, the standard conflict of awards clause, three parts:  a classification; more appropriate to the work performed; and the environment.  Going back slightly to clause 3, definitions and interpretation, children's services and early childhood education Industry is defined; Director is defined, a strong indication that this award is, at least in some circumstances, meant to apply to directors.  And then over the page, employee, again an express reference to the early childhood industry.  And finally, the part of the clause that we wish to amend, the definition of "teacher."


The list of duties that a teacher can do:  performing other duties incidental to the delivery of an education program; includes a teacher in a senior leadership position – there is no requirement there for one hundred per cent, or any percentage of hands on teaching work.  It's about that engagement in the broad process of delivering an educational program.  That's what a director does.  That's what a director obviously does, on the evidence of the IEU witnesses and there's no serious challenge to it from the ACA.  They are superintending, and they are administering an educational program.  More often than not they're actually teaching, and they're performing as an absolute minimum, other duties incidental to the delivery of the educational program.


From that alone we say that this award is, on its face, applicable to teachers who are appointed as a director.  That happens at different points of a career.  They tend to be senior employees.  It tends to be a promotion or someone coming in.  It would be odd for them to drop back to an award that for most classifications provides a lower rate of pay.  That this is so is shown by other aspects of the award.  If we could go to page 19 which is where clause 15, allowances, starts.  15.1, directors' allowance.  It doesn't deal with types of directors, it's just directors who are teachers.  If there were limits here, if there was some sort of – and we see here it's a full-time employee, so a teacher, a teacher as defined – if there were limits here and there was a certain number of contact hours with children were required rather than just operating as a teacher at a more senior level, you would see it in this clause.


Similarly at part 5, clause 19 there's a further textural indicator that this award fairly and squarely covers directors of early childhood services at 19.1.  "This clause does to apply to teachers, including a teacher appointed as a director employed in early childhood services."  That is there because there is a separate schedule that deals with those workers.  But that's been inserted, firstly, to make it clear that directors are covered, and secondly to, I imagine, address the problem that we're still trying to deal with for amendment here.


Turning to the Children's Services Award if the Bench has it convenient, "Coverage" at 4, page 6.  4.7 is the more significant one.  It's the identical conflict of awards clause.  The employees here are unquestionably covered by two awards, the – and a long day care centre is going to be covered, that employs a teacher is going to be covered by the Teachers' Services Award, and similarly, this award.


We then look at what's appropriate for the employee.  It cannot be the case that just because someone becomes a director they are intrinsically more appropriately covered by the Children's Services Award, notwithstanding that it has a classification called, director, but still a teacher.  They're still a bachelor degreed qualified teacher.  That's not, itself, sufficient.  They are accredited to work as a teacher in Australia.  If it was so, if it was that as soon as you became a director it would render – would give those clauses in the Teachers' Award that deal with directors specifically, no or very little work to do, or impose exclusions on them that aren't apparent in the text.  And it has that slightly absurd effect that I referred to earlier of, in most cases, causing a reduction in the employee's relevant minimum rate of pay on the assumption of a more senior role in this service.  It's unlikely.


The confusion in the Children's Services Award arises, it appears, in the definition of "director" in schedule B.  And if I can take your Honours, Commissioner, to page 55 of the award, "Level 6 Director, "an employee who holds a relevant degree, or a three or four year early childhood education qualification."  "Relevant degree" is what's seized on by the employers.  It is evident and there is in fact evidence of this, that there's a range of degrees that are going to be relevant to this position.  Human resources is one, accounting is another obvious one.  Those employees may more sensibly be carried here but it is not as plainly drafted as it could be.


We can see how that from time to time an employer could become convinced that notwithstanding the fact that the person's a teacher, they've been engaged as a teacher, they're using their teaching skills, they suddenly become covered by this award because of this reference.  The correct thing to do to preserve the actual intent of the award is to make the amendments sought by the IEU which just clarify that if it's a person that's an actual early childhood teacher, it refers to the Act of the Teachers' Award.  It's as simple as that.  The employer opposition is misguided in the sense that it doesn't actually engage with the terms of either award but for mentioning this anomaly in the definition of "director" in the Children's Services Award.  I should say you could have a person with a teaching degree who is not eligible to work as a teacher because of that lack of accreditation.  That's a situation where this award might more appropriately be applied.


It's inconsistent, the employer's position, with the actual industry practice and the overwhelming majority.  The one or two outliers that  Ms James identifies are just that, outliers.  Everyone else is sensibly paying teachers in accordance with the Teachers' Award.  Indeed the ACA final set of submissions refers to a process which appears to have very little regard to the award.  There's an assertion made that the employer's check the award and pick the higher rates.  It sounds good to me but the answer to that is almost certainly the Teachers' Award.  There's no evidence that the witnesses actually do that but again, a lot of these positions are more likely than other ECEC workers to be paid above award rates.


It relies on largely a misunderstanding or perhaps a misstated version of the role of the director, that it's some sort of HR thing, some sort HR role or administrative without those teaching skills.  That's too limited a view of teaching work and it's too limited a view of the services their clients provide.  Again, it's the central error of describing this as childcare.  It minimises what these services are actually doing and the reason one might send their children there.  It's not solely about freeing people up to work, it's also important socialisation and education for young children.


A lot of the opposition is directed at some sort of competition between the roles, that it would be unfair for someone with a HR degree to be paid less than someone with a teaching degree.  We would need to find a sample of someone that that had actually occurred to, but that sort of reverse comparative wage justice is not a particularly compelling reason to run down the conditions for teachers in early childhood settings.  And much of the cross-examination directed at that point of what teachers do, and the skills use is related to that misunderstanding.  It's not in fact a competition between workers, just as it's not about pitting educators, diploma and certificate educators, against tertiary qualified teachers, it's simply a disparate range of roles.


The IEU variation does reflect the correct position, supported by the interpretation but also in the context of the very deliberate choice to keep teachers in the Teacher's Award and that surrounding industry practice.  It is necessary to avoid ongoing disputation.  I don't put it higher than there's a few outliers but they're significant matters for those employees.  And accordingly, for those reasons it should be made.  Those are the submissions unless there's anything.


JUSTICE ROSS:  Thanks, Ms Saunders.  Can I take you to the comment you made earlier about, I just – I've forgotten the name of the witness but you say the employer's ABI represents – you submit that the evidence should be disregarded because it's opinion and hearsay.  What was her name?




JUSTICE ROSS:  James, thank you.


MS SAUNDERS:  Lisa James.  Two statements, one in chief which deals with this issue and the casuals issue, and one in reply which deals with the ACA claims.


JUSTICE ROSS:  Yes.  Thank you.


MS SAUNDERS:  Thank you.


JUSTICE ROSS:  Thanks, very much.  Mr Arndt, perhaps if I could get you to start with that point.  So from what I've understood from what Ms Saunders has said is the – she has characterised your submission as, in relation to Ms James' evidence it's opinion and hearsay and should be disregarded.


Can you refresh my memory – well, the point's taken that Ms James wasn't cross-examined but perhaps more relevantly, was there any challenge when her statement was tendered, on the basis it was hearsay and opinion?


MR ARNDT:  I'll be corrected if I'm wrong.


JUSTICE ROSS:  No doubt.


MR ARNDT:  I believe the agreed course of the parties during the hearing would be that submissions would be made to weight.


JUSTICE ROSS:  That's right.


MR ARNDT:  After the Commission - - -


JUSTICE ROSS:  So there no Browne v Dunn point.




JUSTICE ROSS:  That was the agreed basis on which it would proceed and so you're entitled to make that submission in accordance with that agreement.


MR ARNDT:  I mean, one small point I would probably make which might fall onto submissions I make shortly, is the evidence of Ms James as I recall it, is about her experience in the industry, certain disputes between certain employers, other employees, her opinion was to what the understanding is, what the clause means.




MR ARNDT:  If the claim of the IEU is to state that their interpretation of the award clauses is, you know, not so much clear but is correct, and they're just seeking to resolve an ambiguity - - -


JUSTICE ROSS:  Which seems to be how they're putting it.


MR ARNDT:  Which seems to be how they're putting it, we would say that the evidence of Ms James is probably not of that much weight anyway.  I mean, we could - - -


JUSTICE ROSS:  Certainly to the extent it's subjective opinion evidence about what she thinks the clause means, simpliciter.




JUSTICE ROSS:  If that's the proposition, well, that's right.


MR ARNDT:  And falling on from that, evidence about other employees and employers who aren't in these proceedings and how they may have resolved certain disputes about coverage.  I raise that because I think your Honour raised earlier that as far as we're aware, this issue has never come to a head in this place.  It certainly seems like it's an issue where there are a number of workarounds for a number of reasons:  involvement of enterprise agreements; the existence of above award wages, meaning that the issue doesn't really arise and never actually comes to the crunch, just employees negotiating with their employer to say I've been told that this award applies, so why don't you fix me up, so I only raise that point to say that the extent of her evidence about those matters probably don't take us a great deal further as to what the clause actually means if the application is just to clarify what the clause means.




MR ARNDT:  I might, as Ms Saunders did, start with the minimum engagement claim.  We have addressed this in our submissions and I don't propose to say anything substantive today about it.  I would only say, and I've tried to get the exact text from our submissions, Ms Saunders' reference to our clients potentially proposing a substantive claim, to be clear we are not.  I think it was put in our submission by way of suggestion – perhaps that's a little too informal and prone to misunderstanding but we are not proposing a substantive claim.  It's an observation on an issue which there doesn't seem to be – well, there seems to be some degree of agreement about what we do about that issue.  But it is a matter for the Commission.


That being dealt with, I would just focus my remarks this morning on the coverage claim.  And as I've just said, it's possible that during the proceedings an observer of the proceedings may have – it's possible that one could see that there's an element of confusion but certainly the way this claim has been dealt with it's not been absolutely clear at all times that what we are dealing with is a straight analysis of what the relevant provisions of the awards means.


JUSTICE ROSS:  I'm just still trying to get my head around an observer of the proceedings and the notion that some member of the public would wander into an award mod case is doing my head in a bit, Mr Arndt, but - - -


MR ARNDT:  I'm sure they read the transcripts.  I'm sure they read the transcripts.


JUSTICE ROSS:  That's why we post them on the website.


MR ARNDT:  I think it's fair to say that this claim hasn't been dealt with in a way where it's always been clear that we are just talking about what the award means.  It's not a criticism of the IEU but certainly the evidence, the cross-examination of this claim has involved merit arguments about what should be the case.


JUSTICE ROSS:  I think in the IEU's submission though they do refer to it as – well, my recollection is they refer to it as resolving an ambiguity.  So that sort of suggests that they're relying on the existing terms of the award but saying, you know, to paraphrase, look, it's not – we say it means this, but just to put that beyond doubt because we say there'd been a few disputes about it, you should grant the application.  I don't want to, you know – but in a nutshell that seems to be the proposition.


MR ARNDT:  I think that's fair, and without wanting to do them too many favours it would also – it's not irrelevant to bring evidence about how things are done and - - -


JUSTICE ROSS:  No, no.  No.


MR ARNDT:  It's not irrelevant that it might have a merit basis as separate from what the awards actually say.




MR ARNDT:  I do make that distinction at the outset because I will be focussing on what we say the awards mean and what they say, as opposed to necessarily going deeply into the evidence about what they should say.  Now the IEU puts the proposition that the current coverage clause should be interpreted to mean that every director with a teaching degree is automatically covered by the Teaching Award.  Or alternatively, that every director with a teaching degree who's accredited as a teacher is also covered by the Teaching Award.


There is no contest from our side that the Teaching Award can and does apply to some directors.  We say it applies to teaching directors and that's made good by the parts of the award that Ms Saunders took the Bench to this morning, that if the director is engaged as a teacher and the relevant words in the Teachers' Award is the definition of a teacher, which means a person employed as such, by the various forms of educational institutions, relevantly for these proceedings, Early Childhood Education Service.


JUSTICE ROSS:  It sort of does become a bit circular though.  It's, "employed as such, employed as a teacher."  But as Ms Saunders says, the definition of a teacher doesn't necessarily – it talks about incidental too.  It doesn't necessarily confine it to someone who is involved in day to day teaching.


MR ARNDT:  To that we would say that the words of the award require that someone is employed as a teacher.  Now why that's relevant, and in terms of the evidence that came out on that point - - -


JUSTICE ROSS:  I see.  It's relevant to the director point.


MR ARNDT:  Yes.  It's very clear and I don't think it's argued that there is a clear concept of a teaching director and a non teaching director in the industry.  The idea that what someone is employed as, or what they're employed to do and maybe it's a good time to go to the clause of the award, 4.7, which is as Ms Saunders said, is the standard – I think it's at the same number in both – yes, it's in either award – "Where an employee is covered by more than one award, an employee of that employer is covered by the award classifications which is most appropriate to the work performed by the employee and to the environment in which the employee normally performs the work."


Now that clause does not include a reference to someone's degree.  It doesn't include a reference to someone's accreditation.  It, unsurprisingly, based on normal award coverage principles, refers to the work that's performed and the environment in which the employee normally performs the work.  We say clearly there are directors under the Children's Award and there are directors under the Teachers' Award.  We say that an employee with a teaching degree who is a director can be under either award based on the work they perform and the environment in which they perform that work.


As Ms Saunders says, the role of a director will depend on centre to centre.  It changes.  It's not a uniform role.  Obviously at the most obvious end, a director/teacher who's actually performing on the ground, on the floor teaching is clearly under the Teaching Award because they are a teacher, they are engaged as such.  At the other end of the scale you can be a director with a teaching degree but not undertaking teaching duties and doing work which on the face of the awards, we say would be more appropriately classified under the Children's Services Award.


It depends on what people do, as all award coverage issues usually boil down to.  It may be relevant as to – it's obviously relevant whether they actually teach on the floor.  It may be relevant as to the involvement they have in the development of programs, those kind of things.  The ratio's question is an interesting one because it is the case that just because someone does have a teaching degree does not necessarily mean that they are necessarily counted for the purpose of the ratios, by the employer.


The short point, and the point I've already made is, given the fact that we're talking about the ambiguity of certain award clauses there's a reasonable question as to the relevance as to all of the evidence that was brought in the case, not so much about Ms James who gave evidence, and I've already made the submission about Ms James, but about the evidence of actual teaching directors, what relevance their evidence has to determining the meaning of the current clause.


We would say it would probably be quite limited.  To the extent that those witnesses give evidence as to what they do and the work that they perform and the environment in which they work, centrally relevant to determining their award coverage, but as Ms Saunders has said, the role of the director will vary from centre to centre and therefore in circumstances where clearly teachers can be – I'll rephrase that – a director with a teaching degree can be covered by either award, we say that assessment needs to be made in each case.


COMMISSIONER LEE:  Just on the ratio point, why wouldn't a centre count a director with a teaching degree towards the ratios?


MR ARNDT:  It may not need to.  It may be the case that the director, notwithstanding that they have a teaching degree, is performing a role in which they don't see themselves as a teacher, the employer doesn't see themselves as a teacher.  They employ other teachers and therefore they don't count them for the ratios.  Just hold on for a moment – I'm grateful to Ms Whish.  The other aspect of that question would be that employees can't count towards the ratios unless they are accredited.  So one might have a teaching degree and be a director but if they're not accredited they can't count for the purpose of the ratios.




MR ARNDT:  Unless the Bench has any questions that's all I wish to say in reply.


JUSTICE ROSS:  Thank you, Mr Arndt.  Ms Shaw?  Perhaps if, in the course of responding you could deal with – I've forgotten exactly how Ms Saunders covered it but it characterised your position or the position of your clients, but it seemed to be something like, didn't agree but didn't oppose the – that's the construction point about the casuals.


MS SHAW:  AFEI relies on our written submissions and our position is closely aligned with the case put by the ECEC  employers and therefore we don't think it's efficient to repeat it.


In regards to the concerns raised, the changes suggested for the casual minimum payment we do support that potentially a change is necessary to clarify a day, and there is confusion about that clause.  Our position is not that any employee would not get paid for hours that they worked but that the suggested change could result in unwarranted payment for time not worked by a casual.  So if they work more than the minimum quarter of the day and then worked, you know, 30 minutes over that they would get paid for the whole half day, which we think is not an appropriate way to deal with that clause.  But we do understand that there is some confusions and how that is applied.


And also the confusion arises from on what a day is.  Is it the centre's opening hours, is it 7.6 hours, is it eight hours that other employees work in that centre?  So we haven't made a suggestion on how that clause is rectified that we would suggest that any changes that would be made would not result in unwarranted payments for time not worked.


JUSTICE ROSS:  Thank you.  Anybody else?  No?


MR BULL:  United Voice.  We don't need to, or to respond to – we broadly support the IEU's claims and we have nothing to say in response.


JUSTICE ROSS:  Anything you want to say about it?


MS ARRABALDE:  The only thing I'd like to say is that I think that the reason that it hasn't – that teacher/directors have not been complaining that they're paid under the Children's Services Award is that a lot of advertised positions will state the award that you'll get paid for.  And in my experience what happens is an employer will advertise a position, say this is what you will get paid for it, and if your qualification is higher you just have to accept that rate of pay.  And people don't complain about it.  And we see it often.  And when I talk to people I see that quite often that they will say, this is the position of a director.  You will be paid under the Children's Services Award, you will need to have a qualification, and then when you apply they just – the people are accepting that and they think that's why it hasn't been an issue.  Thank you.


JUSTICE ROSS:  Ms Saunders?


MS SAUNDERS:  Thank you.  I might deal with the AFEI's response to the casual claim first.  What the award currently requires is you are paid either a quarter day or a half day.  Those are the options.  There are reasons for that in the context of teaching employment, which is salaried work more customarily.  The AFEI example is you work a quarter of a day plus 30 minutes, you then get paid for a half day.  In the current award their proposition is you work a quarter of a day and half an hour, you would currently be paid a quarter of a day, that is working for free.  That interpretation is unlikely to be correct.  Minimum engagements are not unusual for casuals.


As to the directors matter, your Honour, Justice Ross, is correct that the IEU's primary position as set out in our primary submissions is, this is what the award means, we're correcting an ambiguity.  What's raised against us is less engagement with the interpretation argument, but in the submissions an merits point is made.  In reply, the IEU has unsurprisingly gone, all right, we still think it's correct but here's why it should be so.  That's the relevance of the merits argument.  It is also useful in an awards construction case to have regard to the surrounding circumstance.  Industry practice is relevant and is what Ms James goes to.


The central problem with the idea that it's – with the way that the ECEC employers frame it is the idea that there is properly in the industry a distinction between a teaching director and an office director.  That distinction is artificial.  It relies on that too narrow construction of teaching work, which clearly just means hands on teaching under that approach.  That's not what the national law requires, it's not what the award contemplates.


JUSTICE ROSS:  I didn't take Mr Arndt to be saying that it's quite that clear cut.  I took him to be saying, well, taking the point that appears to be common ground, that the role of a director may change from centre to centre.




JUSTICE ROSS:  And the question of which award applies depends on the relevant factual matrix.  He mentioned that face to face teaching would obviously be relevant to that.




JUSTICE ROSS:  But also the involvement in the development of programs, the degree of involvement, may also be relevant to that.  So whilst there's a white line in his submissions with those involved in face to face teaching, I didn't take him to – and you'll correct me if I'm wrong about this, I didn't take him to be ruling out that there may be those not involved in face to face teaching but on the factual matrix that applies to them they may have a much heavier involvement or weighting, if you like, towards the development of programs, program planning and design, et cetera.


MS SAUNDERS:  Yes.  And that point is why the evidence of the IEU witnesses and the employers as to the actual work performed by directors is relevant and necessarily.  The prospect of this role - - -


JUSTICE ROSS:  But he would say to that, but well that deals with their classification, how they might be classified.  It doesn't necessarily then inform the broader issue.


MS SAUNDERS:  It does give a picture of what this role looks like in the industry, and this is a difficult for award ventures.  You do not have evidence of every single aspect of industry practice or what some bizarre operation in the middle of nowhere is doing.  You are dealing with broad industry norms, necessarily and that's what the evidence shows.  Consistently across both the IEU's evidence and the employer witnesses, more usually in cross-examine, they are all performing teaching work of some kind This is unsurprising.  The role is the supervision and superintendents of an education facility.  It is vanishingly unlikely that someone who is capable of being employed as a teacher within the meaning of the Teachers' Award which does require registration of provisional accreditation if you've just come out of uni, and Ms James gives some evidence about that process, vanishingly unlikely, perhaps impossible, that they will not perform teaching work as an aspect of their role.


The conflict of awards clause, obviously environment is irrelevant.  Both awards are equally capable of applying to work performed in an early childhood setting.  And the directors are there.  It turns on the employer's argument that it's, bit by bit, whether they're employed as a teacher is fundamentally a designation argument.  You engage someone – it doesn't matter what you call them, the question is as always, the substance of the work they do.  For a teacher employed as a director of an early childhood service, and I use "teacher" in the award sense, that's not someone who accidentally did a teaching degree 30 years ago and isn't now qualified to work as a teacher, it's someone who is capable of being engaged under the Educational Services Teachers' Award.  They are working as a teacher in that role within the proper meaning of it set out in that award, within the proper meaning of it recognised by the national law governing this sector.


Yes, so that's all I wish to address on the teacher/director question, unless there was something further arising.  I do think ACA said something about casuals.  I didn't put it as high as saying that they had in fact proposed a substantive change, or I didn't intend to put it that high.  But the suggestions made in passing in the closing paragraphs of their submission that we abandon the whole thing and move to an hourly rate thing would be, if made, a substantive change and not appropriately dealt with in the context of an application to merely clarify.  The drafting of the clause could certainly be improved.  The drafting I proposed could be improved but what we're dealing with is that more narrower question.  Thank you.


JUSTICE ROSS:  Nothing else on the IEU claims?  No?  Mr Arndt?  Are you up next?


MR ARNDT:  As I indicated before, I don't plan to be long.  The ECEC employers have two claims, the ordinary hours claim and the rostering claim.  A great deal has been written in support of these claims.  Questions have been asked, questions have been answered and I would seek to rely on that material and provide a few short submissions of emphasis, and perhaps clean up one or two things.


Beginning with the ordinary hours claim, the ordinary hours claim has the aim of aligning the span of ordinary hours in the relevant awards to a range which is consistent with the role of ECEC services in the wider economy.  In short, we say that the commencement of overtime at 6.30 pm in childcare, in childcare centres, and we'll come to that particular word shortly, is too early having regard to a number of factors including the work and commuting patterns of parents who utilise these services.  We say a coherent minimum safety net would include ECEC services, or rather the industrial standards applying to ECEC services, and have some regard to the fact that parents finish work, commute, and pick up their children from ECEC services and we say that 6.30 pm is too early in making that assessment.


I just want to raise two issues of substance.  This actually responds in part to some of the comments made by Ms Saunders earlier and an ongoing line of submission in these proceedings about the characterisation of the industry and how the people I represent characterise the industry.  To be clear, it's not the position of ECEC employers or anyone I represent that the industry is merely a babysitting service or child-minding service, or any other of the very limited phrases which have been used against us.  It clearly is designed to, and does achieve far broader benefits for children and families than just keeping a child free from harm while their parents are at work and that is not contested.  It's clearly not contested.


Despite this, in our submission it would be a mistake to simply dismiss the fact that ECEC services are predominantly used during periods where parents are at work or where parents or carers are at work, and the collection of children from ECEC services is substantially dependent on the availability of parents and their availability to leave work and pick up their children.  In that context we submit it's appropriate for the Full Bench to consider the hourly span in the sector, to consider other spans in other industries in determining the ordinary hours claim.  I said I had two points of clarification on that point and I only had one.  So that's it.


The rostering claim is our second claim.  Currently the awards contain minimum notice periods for a variation of rosters and when those noticer periods aren't complied with it results in an entitlement to be paid overtime.  As I said in opening on the first day of the hearing, the rostering claim seeks to address a very specific scenario.  This is a scenario where sufficient notice to an employee is not provided, that an employee will be absent, and the employer is required to replace the employee in the roster to satisfy their statutory obligations in respect of staff ratios.


Now much has been made in the written submissions and perhaps much will be made today in closing, that the employer witnesses under cross-examination admitted that they wouldn't force employees to come in on an hour's notice and change their roster.  The one example I can recall is calling an employee a 5.30 am to come in on an hour's notice because someone's called in sick.  There's no dispute from me that the evidence coming from the witness box was that the ECEC employers who were cross-examined didn't want to force their staff to do anything.  It's truthful evidence and they should be given some credit for that.


In response to submissions about that evidence I would say this.  The claim is made in a very specific context.  It's drafted – it's intended to be drafted and it is drafted in such a way that it wouldn't provide an unfettered right for employers to merely tear up the roster and arbitrarily start on short notice or not notice, calling people in without agreement or penalty.  It isn't intended to do that.  It does not do that.  It operates in a very specific context where statutory requirements require a certain number of staff with certain qualifications in some circumstances, and certain ratios to be met.


As per the terms of the draft determination it only applies where an order to comply with its statutory obligations in respect of maintaining staff to child ratios the employer is required to change an employee's rostered hours so to replace the absent employee who has not given the requisite seven days' notice.  We say this formulation makes allowances for the fact that the evidence before the Full Bench discloses that staff by and large are accommodating.  One witness referred to it – it may have been not directly on point but certainly evidence was given that it was a team effort.  Certainly the evidence in this case is disclosed that childcare centres, ECEC services, operate as cohesive workplaces where there is a level of co-operation amongst staff and management.


JUSTICE ROSS:  Accepting that evidence, and as you say, it would support a finding that they do seek to work collaboratively to ensure that they don't end up with the problem of meeting the regulatory requirements, doesn't that give rise to a question as to whether the change you propose is necessary, within the meaning of 138?  It's the same point that I put to Ms Saunders about the coverage claim.




JUSTICE ROSS:  Ms Saunders acknowledges that we're dealing with a few outliers and there's an issue for them and she puts, an important issue because it relates to pay.  Here it's conceivable that there will be circumstances where they're not able to cover and that creates a regulatory problem.  But the evidence doesn't suggest that that's happening a lot in practice.


MR ARNDT:  I can't cavil with the last thing your Honour has said.  I would say that the distinction or the interesting part, the relevant argument against that proposition would be the fact that what we're dealing with is legislative compliance and that while the scenario may not arise often, to the extent that it does we are hitting a very hard brick wall in terms of potentially not complying with the ratios.


JUSTICE ROSS:  Can you take me to any evidence where that's occurred?


MR ARNDT:  I can't.  I believe one of the witnesses said it almost occurred but that's as high as I can put it.  So the answer to your question is no.  Certainly when – I'm very grateful to Ms Saunders.  I'm actually recalling Ms Saunders' submissions about the matter.  Ms Paton.  Now we say it's the statutory requirements.  It's the legislative force of what will happen if the unlikely does occur.


JUSTICE ROSS:  And what is the legislative force?  I mean, what does happen if that occurs?


MR ARNDT:  You'd be operating - - -


JUSTICE ROSS:  What flows from it, is really - - -


MR ARNDT:  It's a civil penalty provision.  The prospect – I mean, it would also be - - -


JUSTICE ROSS:  Presumably on a broader regulatory front, as well as the civil penalty it might go to whether you have a licence to operate.


MR ARNDT:  There is that.  There would be a rating in terms of consequences, in terms of exceeding expectations, meeting expectations - - -




MR ARNDT:  I'm grateful to Ms Whish.  The other option is that you just close.  And that would be the way that you would avoid a penalty or a breach.  If you close the centre you are obviously not in breach of a ratio because you've closed the centre.  And there is evidence that that's at least in the contemplation of the ACA's witnesses as an option.  If they weren't - - -


JUSTICE ROSS:  As opposed to evidence that they've actually done it?


MR ARNDT:  Precisely.


JUSTICE ROSS:  All right.  Is there any evidence that any civil penalties have ever been imposed for these sorts of breaches?


MS WHISH:  Not in this matter, your Honour.  I think the evidence goes not so much to closing the centre but I'm sure that there's evidence that at times if you were about to breach your ratio requirements you'd simply call parents and you ask the parents to come and pick up as many children as you need, to get back to compliance.


JUSTICE ROSS:  So you can mitigate the extent of non compliance, yes.


MS WHISH:  Yes, that's correct.




MR ARNDT:  Your Honour, we may just clarify the existence of that evidence before – we'll make sure - - -


JUSTICE ROSS:  No, no, that's fine.  I note and – yes, suffice to deal with that.


MR ARNDT:  To conclude, we say that notwithstanding that it is not a routine scenario, we say that given the statutory requirements, the ratio rules, the clear consequences on the face of the materials before the Commission, not so much as what has occurred but what could occur based on those legislative instruments, that it's open to the Full Bench to make a finding that employers should have the ability to replace an employee in the roster without being penalised with overtime, in the manner that our variation proposes.  Unless there are any other questions about either of our two claims, that's all I'd like to say.


JUSTICE ROSS:  Thank you.  Did you want to say anything about this claim, Ms Shaw?  That's all?




JUSTICE ROSS:  No, all right.  Replies?  Yes, Ms Saunders.


MS SAUNDERS:  Starting with the span of hours claim just to deal with it in the same order, it is important to recognise that this claim seeks to vary two awards.  These awards are not identical, the conditions are not identical and it's not surprising they are different occupations.  Sure, everyone's working with children but the teacher is a qualified employee who brings a certain level of skill, and that professionalism is recognised both by pay and condition in the Teachers' Award.  I make this point in my submissions but all that's said about the Teachers' Award is, well, if we change the Children's Services, the span of hours should change there too.


It's not particularly compelling and it falls away when one considers the evidence, albeit limited, provided by the employer witnesses of how they actually roster their teachers.  Teachers are rostered during the core hours of the service.  It's when most of the children are there.  It's when the educational program is delivered.  They are not the workers that are generally on end shifts, they're not the ones that are rostered to cover the tail end of the day.  Most children have gone by a certain point, which would be even more true if we were talking about 7.30 at that night.  Many of them would at that stage, be asleep and not tremendously receptive to the work's educational program.  That's the employer's evidence in cross-examination, but not particularly intensive cross-examination.  I just asked them and they agreed.  It's a pretty straightforward proposition.


There are one or two aspects of the transcript that I do want to take the Bench directly to but otherwise the references are in my submissions, so certain pinpoints.  As to the merits of the claim there's a lot said about the importance of this sector, about it's importance to the economy, about its importance to the workforce and particularly women returning to work.  That is uncontested.  It's an important area, these are important propositions. But if I could just get real for a second.  These are the for profit operators.  This is about extending hours so as to run a profitable business.


It is at least, in part, about making money.  And this presents a problem.  And I don't say that that's a bad thing.  That's the point of a for profit industry, even one that's heavily government subsidised as this one is one is.  But it presents a problem for this claim because there is no indication that there is any actual demand for this.  No employer has done a market test.  None of the employers are currently using the full span of hours.  People aren't beating down doors to get their childcare services in – the high watermark of the evidence in this respect was an exhibit, exhibit 30, which is a survey response in a particular set which showed that the overwhelming majority of parents attending that service were very satisfied indeed with the current span of hours.


There was an option, dissatisfied.  The one person made a comment that they'd prefer it was open later.  That is not sufficient to justify a change to an award which dramatically impacts the working conditions of both the children's services and teachers.  7.30 is a late finish.  What's relied on is, the evidence is run, the reporting of the current span of hours in other modern awards.  Those are the span of hours.  That's not enough by itself.  We have no indication of how utilised those spans are.  There are outliers in every industry.  Indeed this industry isn't using its full span according to the evidence of the employers.  It's not sufficient to say that people are actually working these patterns in such an overwhelming manner that there's such a compelling public interest that justifies this variation without compensation to employees.


There was also a further justification that said this is in fact in the employees' benefit because sometimes parents are late picking up their children, and employees correspondingly have to stay back later and are paid overtime for that.  In this circumstance, in theory the longer span of hours would allow a worker to be rostered – the centre closes as 6.30, rostered till 7 o'clock to compensate for the parent who's always late.  One difficulty with that is most of the employee witnesses again very frankly agreed that they wouldn't actually roster a person past closing to compensate for that incident.  The actual data on how late people are is not – it's a continuing disaster.  It happens from time to time but not enough to change roster patterns.  So that argument falls away in the sense that no one's going to do it.


And secondly, it ignores the survey, essentially, the survey responses attached to Ms James' reply statement which indicated how undesirable workers would actually find it being required to work till 7.00 or 7.30 at night.  That is, an 11.30 to 7.30 shift is on any view of the world, unsociable hours.  It is not to the point that there might be one or two people who would prefer it.  Those individual matters of opinion don't – the fact that you can find someone to work your shift, you can find people to work nightshift, but it's about that broader societal expectation and the general norms that the award is meant to govern.


A key argument about this, and it's not surprising given who the proposers are, it's about cost.  Even assuming that there is this roaring demand that centres would in fact open until 7.30 at night to cater for the legions of people staying back late, and in fact that should be encouraged, nobody has done any cost calculation.  The witness that came closest was Ms Llewellyn who did a sort of back of the envelope calculation on the costs.  We explored that a little in cross-examination.  It would cost her about $3000 a year to open a centre for an additional half an hour, which was one per cent of her net profit – not revenue, profit, for the year.  These are very small figures.


In the absence of calculations I've prepared a table which sets out some costings of the claim, if I could provide a copy.  This is the high watermark of how much money the employer saves, or the corresponding way to put it, how much it's going to cost an individual employee.  This is for the 11 am t 7.30 pm shift.  What I've done, to explain the table, is take the current award hourly rates, that's the rate that's used for calculating overtime for the purposes of the Teachers' Award, I've done it for the Children's Services Award for convenience, worked out what that shift would cost an employer now, under the heading, "Total current cost for the day," and we're not talking about tremendously large sums of money at this point.  And then what it would cost if they were allowed to do that all as ordinary hours.


The difference per day ranges from, for teachers, $13 to $18, remembering that childcare fees are in the range of $100 a day, and if you were attracting new markets, if you are opening up a whole new market you are opening up a whole new world of fees, and the difference per year for a single employee is somewhere between three to just under five thousand dollars.  Assume, as most of the witnesses said, that you have two employees rostered on for the close shift for safety, it's best practice – assume for the sake of the argument that they are both teachers, which is fairly unlikely but nevertheless, $9000.


That is not objectively a huge overtime bill.  It's not a significant sum compared to daily rates for childcare.  It's in no way significant compared to the only financial information the Bench has, Ms Llewellyn, and there is a deafening silence from everyone else in this industry.  Sorry, I should say there is a deafening silence from all of the other witnesses about what their profit margins are.  They say it's deeply unaffordable.  On a rational view it's not.  What those sums of money are, however, are potentially significant to the individual employee who's on those rates.  The Children's Services Award, the picture is much the same, almost identical when you get to the end.


It's not, it can't be, overtime costs that's preventing centres opening now.


I have also raised in my submissions an issue with the shift work clause which currently in the Children's Services Award, as in the Teachers' Award, designates an afternoon shift as one finishing at or before 7.30.  The ACA rely on a decision of Senior Deputy President Kauffman.  I can provide a copy of that.  It's important to understand it in its full context.


JUSTICE ROSS:  Just in relation to your overtime cost savings - - -




JUSTICE ROSS:  Do you have any recollection of what incident number we would be up to in relation to the IEU's?


MS SAUNDERS:  No - - -


JUSTICE ROSS:  That's all right.  I'll mark it later.  But can I also indicate to the employers that you – I don't know if you've seen it before.  If you haven't then you can say whatever you want to say about it within a few days with the – well, with the other matter you were going to deal with, Mr Arndt, the evidence about the proposition that was mentioned in oral argument.


MS SAUNDERS:  Yes, it's a purely mathematical calculation.


JUSTICE ROSS:  No, no, I appreciate that.


MS SAUNDERS:  It would be exhibit 44.  We were just numbering them.


JUSTICE ROSS:  Thanks.  Forty-four, all right.  Yes.


MS SAUNDERS:  This is the decision I referred to in my friend's submissions.  There's not a tremendous amount out there about what a shift worker is.  It's sort of a, know it when you see it, kind of view.  It deals with a range of award applications.  The shift work provisions start at paragraph 136 at page 25.




MS SAUNDERS:  It deals with resolving the – the relevant clause, I should say, starts at 143 in the general shift work discussions.  The ABI and the AiG were attempting to resolve the ambiguity that they are now seeking to introduce into this award but, I mean, they didn't successfully resolve it so perhaps there's been a position change.  148 is what's relied on.  And this is what draws the Senior Deputy President to resisting the application.  The primary ASU submission is to avoid treating unsociable hours like ordinary hours, which is precisely what this variation would do.  As to the separate and distinct definition of shift work and ordinary day workers in the ordinary span of hours, that was defined in the same way that it is in these two awards, unsatisfactorily and just with reference to length.


What the evidence disclosed about rostering patterns in this industry is that overwhelmingly workers are not working consistent patterns of work.  They are being rostered month to month on a rotational basis for some employees, over the course of twelve months with one but you rotate back and forth, moving between start and finish shifts over the course of whatever the roster period is.  In the case of one witness being regularly rostered, fluctuating shifts with less than a week's notice.  How that is said to be compliant with the award is not explored but these are people who are not working steady or consistent patterns of work.


They are sensibly considered a lot of the time to be shift workers.  And there's no rational reason why someone who is rostered, for example, on a rolling roster, rotating from start shifts to finish shifts, with that finish shift being 11 am to 7 am, wouldn't sensibly be described as a shift worker.  It's the essence of the work.  They are working, for one thing, unsociable hours, and they are working a non fixed pattern.  By non fixed pattern, I mean it's not nine to five, Monday to Friday or a similar regular shift.  It could be that it's a fixed rota.  A lot of that's unlikely here.


There's a real necessity problem with this variation.  As I've said, there's no – as high as the evidence goes is that these employers might stay open later to attract new business.  None of them really say that they would roster their employees later to compensate for lateness.  They don't seem to particularly want it.  There's no evidence that it's particularly needed either from a business perspective or in the broader societal sense that the ACA rely upon.  What it would do if it was taken advantage of, would cause a significant detriment to award reliant workers.  They would lose access to what is limited in this industry, overtime payments at rates that are not significant to the employer but are potentially significant to the employees, and it would cause disruption to their personal life.


One witness, Ms Llewellyn again, provides probably the best example of how difficult this would be.  This is at PN4152 to 4160.  She rosters week to week.  People generally do work the same shifts but she swaps them over a three month period, and in particular over a school term.  Those people who are on the open shift, they're closed for the next shift.  Answering the question, "Why do you swap them?"  "To give them a better work life balance."  The questioning continues.  She agrees the shifts are disruptive to people's family life, and this is 6.30, okay, so one of her services is 6.00, I think – disruptive to people's family life and they can become very tiring over a whole year.  They're unsocial hours, they're rotating them now.  That's all I wish to say about the span of hours claim.


Moving to the roster changes, as it's put at a high level again that it's necessary to comply with the national law.  There is of course no evidence that this is in fact a difficulty, no evidence that it's happened.  As high as we get, as Mr Arndt went through is that one witness says she came close once.  There's a proposal that they might send kids home before closing.  No one's suggested that they've actually done that, so they're just alert to it.


The reality of the evidence is that it discloses that there are, as set out in my submissions, a range of ways that these employers can, and the "can" is a matter of common sense, and as a matter of evidence, do, deal with this ratio requirement.  They can, as a starting point, employ enough staff to cover for the inevitable incidence of sick leave.  Employees get sick in every industry.  There is some evidence of this, if they do get sick in the early childhood industry because they are working closely with children, and particularly when they start there's the first sort of three month adjustment period where they – your immune system apparently improves tremendously.


This is referred to as over-staffing by a lot of the witnesses.  The ratio requirements set out in the national law are minimums to how many people have to be working with the children at any given time.  They are not a guide for how many people you should be employing at any time.  This is not the only industry that has minimum staffing requirements.  Many have minimum legislated staffing requirements.  And obvious one is the airline industry.  There was some outrage at my suggestion in my second set of submissions that this is so.  Planes require a certain number of pilots and co-pilots to fly and a certain number of flight attendants per leg.  If your roster is at a minimum you run a risk that someone is going to get sick and you'll be under your ratios.  Necessarily you need to have the buffer, and that these employees with one or two exceptions, and Ms Viknarasah is one, do in fact roster above ratio.


A shortfall does happen.  Usually if you've got a buffer it takes more than one person calling in sick, which will happen the day of illness.  A matter I will turn to, a range of ways to cover it, calling your, by all accounts, incredibly co-operate staff to come in early or come in on their day off either at ordinary time rates, or as an alternative, offering them overtime.  And that's not penalising the employer for having to comply with ratios.  That's compensating an employee for having to work additional hours.  That's what overtime is for.  Many of these operators can and do step in, themselves, and there are agency casuals.


The witnesses had a degree of preferences.  Some used them, some didn't.  There was a range of reasons:  costs; continuity, but it is available.  At the absolute limit, you've tried everything, or you've decided not to try all these perfectly available alternatives, you can send children home or you can close.  If this was happening, and  there wasn't any suggestion this was happening at all, let alone frequently, that might be significant, but it's not.


And similarly, the idea that it causes a particularly complicated rostering system, Mr Fraser's evidence which is extracted in the ACA's submissions, puts pay to this.  He describes in a long form, sure, but what he describes is a perfectly normal rostering regime.  One thinks about the business' needs; one looks at who is available and you fit them in.  It can be a complicated exercise.  That's why there are roster clerks.  It's a skill but what's described is not so transportingly exotic and unusual that this extraordinary claim should be granted.  It is extraordinary.  It is about short notice absence.  It's cast as less than seven days.


In reality as the witnesses agree, what we are talking about is primarily sick leave. And that happens at short notice with short notification t the employer.  It would require employees to in effect be on call five days a week for no compensation.  It could arise at any time.  There is no other industry in which that is replicated.  It is an extraordinary disadvantage to employees.  It's a bizarre way to work.  It gives them less certain than a casual, remembering that a casual can, as a matter of contract, refuse an offer of engagement where someone who is directed to work their ordinary hours, cannot.  And without the compensation that casuals are in fact paid for the volatility of their work, a component of the 25 per cent is about volatility and uncertainty.  These workers would have that with the threat of dismissal without any benefit.


It is not to the point that these employers are, I'm not questioning it, but on their evidence, nice people who do not want to force their employees to work.  We promise, your Honour, hand on heart, we will not abuse this extraordinary power.  It's a little difficult because it's a cross section.  There are outliers in every industry and it's a power that has obvious scope to be abused.  It would encourage staffing at ratio.


It is also relevant that what was disclosed over the course of the hearing is that this is an industry that in practice, they are nice people.  Many people working in the services industry are.  It's a caring profession.  But in practice every inch of flexibility that the award provides is used to its hilt.  They roster permanent part-time workers, week to week on rotating rosters and don't treat them as shift workers.  That's permissible under the award, as long as they're doing it within seven days, but the flexibility that's there is absolutely taken.  And in some circumstances it goes further.


The industry appears to be pioneering the concept of minimum hour engagements where you hire someone, sort of full-time but with the right to drop them down.  Everyone's a part-time worker at 37.5 hours a week.  That is not permissible under the Teachers' Award.  And what it does it, it doesn't particularly matter to the employee.  It's half an hour's pay.  They might not notice or they, as Ms Arrabalde observed, might just accept it, as with most contracts of adhesion but it's a nice little saver for the employer.


There is an interesting approach to overtime taken.  At least two of the witnesses appeared to give evidence that they just don't pay overtime.  Everyone is required to accept a time in lieu arrangement.  That's questionable.  I don't urge a finding that there are flagrant award contraventions going on in this part of the industry but one could comfortably be satisfied that if there's flexibility in the award these employers will take it.  And that tells strongly against introducing such an extraordinary power to direct people to come in at short or not notice to work their ordinary hours without compensation.


As to the evidence it's an unusual matter in that there was a fairly extraordinary disparity between what was said in witness statements and what came out in cross-examination, and in particular, many witness' understanding of the claim they were actually supporting.  Certain instances of that I'll take your Honours, Commissioner, to.  My friends cavil with it in the final submissions, the suggestion being that these witnesses were not cross-examined specifically in the context of, would you do it if you would otherwise break the law, which is maybe an inflammatory way of describing contravening a regulatory requirement but nevertheless that can't be so.  These people – we were discussing ratio requirements.  These witnesses are acutely aware, correctly, of their obligations under the national law and they have the right of written evidence which they've adopted, spelling out the requirements in full.  They know the context and they gave the answers, nevertheless.


Ms Viknarasah at PN1173 to 1177 - - -


JUSTICE ROSS:  Sorry, what was the reference?


MS SAUNDERS:  1173 to 1177, an exchange – she just does not think she should be able to tell someone their ordinary hours have changed at short notice.  That's the claim in any context.  "You do not think it's fair to be able to force her to cover that shift to fill in for someone who's sick?"  The answer's, "No."  In terms of her demeanour, she seemed surprised.


Mr Fraser had the best understanding of the witnesses of the ACA claim, not surprising given his senior role in the organisation.  Even his initial response was, "Oh, this is about employers agreeing."  He then remember and talked through it a bit more but it's a little difficult.  And the reference for that is PN1772 to 1773, his initial description of what the claim was.  But I do concede that he got there in the end and put that he would – he thought it was a fair and appropriate course if someone changed their ordinary hours of notice.


Ms Paton, her first response, PN2302, in the context of a discussion about changing people's hours, "You don't want to be able to demand?"  "I," a pause, "that wouldn't make me a very fair employer."


JUSTICE ROSS:  What was the reference again, sorry?






MS SAUNDERS:  There's exchange afterwards where she clarifies that she was talking about herself as a person, doesn't think it would be fair as a person, does(?) think it would be fair as an employer, but her first more unguarded response is probably a more correct reflection of the position, remembering that there was an ACA person in the small conference room she was giving video link from.


Ms Maclean, PN2483 through to 2486, "You don't want to be able to order people to come in," a question asked in the context of – a consistent hypothetical example of someone calling in sick, the day of – "No, no, I would never do that."  And she then continued to agree that she does not in fact need to do that.


Ms Chemello, 2727, we're talking about covering the absence, "I'd ask the question but I wouldn't force her," close brackets, "to come in, to change her ordinary hours."  And agreed she did not think when asked, "Do you need to be able to force her," at PN2727, "I don't think it's good for our team to force anybody to do anything, so we work collaboratively so we had a good working partnership."  Mr Arndt is quite right.  There are a few more that I do want to take the Bench to but this is very frank evidence and it's a reflection of both the absence of actual pressing need for this claim, the fact that the witnesses are not immediately responding, that they haven't – many of them didn't appear to think this was the claim.  But also of normal community perceptions of this kind of thing.  It is outside the norm of employment.


DEPUTY PRESIDENT CLANCY:  The different position seems to be that you're saying this could be used routinely, and Mr Arndt is saying, well, the way we're drafting it, that it's specifically to avoid that occasion where a centre might fall foul of the regulatory requirements.


MS SAUNDERS:  Indeed.  Indeed.  What I say to that, there are centres that will never use this as a matter of practice because they just don't fall under the ratios.  It's the necessity argument earlier.  But they don't fall under the ratio requirements because for safety at the moment they have to have a buffer because they can't move their staff around at will.  What this clause incentivises - - -


DEPUTY PRESIDENT CLANCY:  But I mean, that's the essential difference between the two positions that have been put before us.


MS SAUNDERS:  Yes, I agree.  It's that it would only happen in its limited and - - -


DEPUTY PRESIDENT CLANCY:  Yes, yours is, it could routinely by some centre operators, and it is only being sought for those dire situations where the alternative is to either breach the regulatory requirements or close the doors.


MS SAUNDERS:  Yes, I agree with that.  The difficulty with it is it encourages employers who are cost conscious to roster at a level that makes it more likely that those circumstances would arise.


DEPUTY PRESIDENT CLANCY:  Well, it might, it might not.  I don't know.


MS SAUNDERS:  I disagree, Deputy President.  It does have that effect.


DEPUTY PRESIDENT CLANCY:  On what evidence though, your view of what?


MS SAUNDERS:  Of the extensive discussion of why people roster with a buffer so as to – because they can't call people in.


DEPUTY PRESIDENT CLANCY:  No, but in this scenario?


MS SAUNDERS:  Yes.  I'm sorry, I think I've misunderstood your Honour's question.


DEPUTY PRESIDENT CLANCY:  You're saying that this would encourage routine - - -


MS SAUNDERS:  I'm sorry, I haven't put the submission well.




MS SAUNDERS:  It does require ACA's drafting a certain set of circumstances to arise, a short notice absence.




MS SAUNDERS:  Not that short notice.  It's within seven days, but a short notice absence.  A short notice absence, and that absence meaning that the ratio requirements will be dropped.  I'm not saying that's incentivised.  That's chance to some degree, as being short notice absence.  What I'm saying, what makes that circumstance more likely is a lower level of rostering.  If you rostered at ratio rather than what these witnesses describe as overstaffing, if you don't have a buffer or don't have a sufficient buffer it's more likely that when someone does call in sick that risk arises of the ratio being not met.  What I say is incentivised is that lower level of rostering which means that it's conceivably possible this could be used all the time.


JUSTICE ROSS:  So over time, whereas at the moment, however you frame it, but they have more employees there - - -




JUSTICE ROSS:  Than are required to meet the regulatory minimum.




JUSTICE ROSS:  You say that's done to ensure in the event there is a short term absence that can't be covered that they meet the regulatory requirement.




JUSTICE ROSS:  If there's another way of doing that, i.e., calling people in at short notice, then over time what they'll do is drop the extent of over-rostering.


MS SAUNDERS:  Yes.  I'm not saying it's a necessary consequence.  Some centres won't do it simply because it's poor practice.  You want more staff there necessarily but some centres conceivably could.  And in the cross-examination of witnesses on buffer, the point of having a buffer is to protect against short term absences.




MS SAUNDERS:  If less protection is required there's less incentive to have that buffer and thus rostering to ratio is incentivised by this going into the award.  But it's an extraordinary change even if it's just looming there, going – not commonly used but able to be used at short notice.  The employees simply do not know of when the situation will occur.  The absences that have been dealt with are inherently unhelpful.


DEPUTY PRESIDENT CLANCY:  The tenor of the evidence though was, and this was consistent, witness after witness said, "I wouldn't force people to do it."


MS SAUNDERS:  Usually backed up with, "I don't want or need."


DEPUTY PRESIDENT CLANCY:  Yes.  What I'm struggling with is, if this power was granted, that's the evidence that's given, employers are going to routinely want to be in the situation, saying - going into the well, so to speak, on a regular basis to say, well, I need you because I'm going to fall foul of my – you know, you could only do that so many times before people would start getting – why would you want to, on a regular scenario, engage in that sort of dialogue with your employees?


MS SAUNDERS:  It would vary, employer by employer.  A sensible one wouldn't.  But it's - - -


DEPUTY PRESIDENT CLANCY:  Certainly on the all the witnesses before us they wouldn't.


MS SAUNDERS:  Mr Fraser would.  Ms Hands would.  Ms Paton would, if necessary.  Sorry, wouldn't do it consistently.


DEPUTY PRESIDENT CLANCY:  As I recall – I recall in the cross-examination there was perhaps one witness who said – there was quite an exchange about, you'd want to be able to force people, or – there was one.  I don't think any of the others were in that sort of characterisation.


MS SAUNDERS:  I believe that's Ms Hands, the last witness.


DEPUTY PRESIDENT CLANCY:  Yes, I think it's the Victorian - - -


MS SAUNDERS:  Via phone.


DEPUTY PRESIDENT CLANCY:  It was a Victorian childcare centre, as I recall.


MS SAUNDERS:  Ms Paton?  It is Paton.  My friend – yes, so it's three.  It's Fraser, eventually, Ms Paton, eventually, Ms Hands, fairly quickly, if necessary.  And they do – I'm not suggesting these are bad employers.  I'm suggesting it's a bad claim that could be abused by bad employers.  The witnesses themselves, I don't seek any credit findings.  As I say, I don't urge any findings about award compliance but all one can take from the evidence is that it's an industry where flexibility is used, and used to its absolute fullest which makes it more - which means that one would treat with caution or one would approach the proposition that the assurances of these individual employers that they wouldn't do it unless they absolutely had to, should be given significant weight in granting the claim.  Really, it more goes to necessity.  They don't want to be able to do it, they don't think they have to.


They're not all here supporting this precise claim.  Mr Mahoney is an example, PN3963.  3962, it starts, I'm sorry.  I asked him to explain his understanding of the claim, as bald as that, and the claim he says he's here to support is roster changes requested by the employer.  He says he wouldn't force but he doesn't know what's in the mix at this point.  He's here for a totally different purpose.  He seems to have misunderstood what the award requires.  The seven day notice period is directing people to change their hours.  You can do what you want by consent.


Similarly, Ms Llewellyn.  I asked her at 4214, "The rostering claim, could you just explain to the Commission what you understand the claim to be?"  A bit of an exchange, she – I can't quite recall the circumstances but I asked, "Would that be within the employee agreement?"  "Yes."  "And only then?"  "Yes."  Her evidence is given in the context of a completely different proposition.  She cannot be relied on and neither can Mr Mahoney to support the proposition that employers want or need this claim.


Yes, just to return to your question, your Honour, Deputy President Clancy, I should clarify that I don't say this claim should be rejected because it will inevitably be abused and everyone will be called in at short notice.  I say that that is one aspect of why it's improper.  It doesn't provide a fair safety net because it creates this risk with very little justification.  There is not a clamouring urgency in the industry.  There's no evidence that they need it.  It should be rejected because it is not at all consistent with employment standards and there is no separate justification.


And it turns fundamentally on Mr Arndt's final submission, that where this happens the employer shouldn't be penalised by having to pay overtime.  Why not?  You're directing an employee to come in and work outside what was their expected roster.  It's a situation where overtime applies.  And we are not talking about – well, we have no costings but we're not talking about an industry breaking unreasonable sums, just very sporadic, needing to pay someone a shift at time and a half, double time at the absolute outside.  There is nothing unfair about that.  It's one of many ways that the purported problem can be addressed.  Unless there's anything further those are the only submissions.




MR BULL:  I was going to just make some brief submissions in response to the ACAC claims.  These submissions are principally addressed to the Children's Services Award.  It's useful to bear in mind that there are two provisions in that award which are in different senses, relevant to both the claims.  The first is the Children's Services Award, is one where casual work is not contemplated as an ongoing possibility.  Clause 10.5(b) describes a casual as  a person engaged for temporary and relief purpose.  So a casual is not supposed to be a permanent fixture within the cohort of the workforce.


The other peculiar feature of this award which is relevant is that there's a significant exception to the ordinary hours provisions in relation to the liability of the employer to overtime, which is clause 23.2(b), which where due to a genuine pressing emergency an employee is required to remain at work after the normal finishing time, such time to be paid at the ordinary rate for the employee's classification.  So that provides a facility in an emergency situation for the employer to direct the employer to remain, and there's no liability.  It's ordinary hours worked.  And there was some evidence that that is use.  There's some subjectivity perhaps in terms of what an emergency situation might be.


JUSTICE ROSS:  What was the evidence that it was used?


MR BULL:  It is when there's an accident or something, a parent - - -


JUSTICE ROSS:  No, no, no, what witness?


MR BULL:  Off the top of my head I might have some difficulty telling you, but I can maybe send a note.  It's in our - - -


JUSTICE ROSS:  Yes, we'll deal with the notes later, that's all right.


MR BULL:  It's in our factual document.  Just briefly, I broadly support the submission my friend from the IEU has made.  In relation to the ordinary hours claim the striking feature of that is that there's almost no evidence.  Ms Wade, my friend has just assisted me.  It's PN893 to 895, and that's talking about keeping an employee beyond the span of the ordinary hours into the evening because there's an emergency.


Just in relation to the ordinary hours claim, there's a remarkable lack of evidence showing that there's any need to span the ordinary hours into the evening.  The claim is pressed on the basis that somehow the hours would align with function or demand, and that seems to be the working hours of the parents plus some travel time.  There literally was no evidence suggesting that there was a problem in that regard.  I would support and elaborate on my friend's submission about the claim essentially normalising unsocial work practices.  It can also be described in terms of normalising absences into the early evening of small children from their parents, and neither the parents or the children – it's not a desirable state of affairs for either.


In relation to the rostering the employees who will be at the most disadvantage will be the part-timers, particularly in the Children's Services Award because it's not an award where you are supposed to have casuals.  So I would support what my friend has said and say it's significant that part-timers essentially will lose some of the character of being a part-timer and they will be in a more precarious, uncertain situation in relation to their hours.  I think it's a reasonable characterisation of the evidence that – and part-time employees are the ones who are going to be called in because they have spare ordinary hours to do additional work.


And the part-time work in this award, notionally you'll have a fixed pattern, and if you don't agree you'll get overtime if you're called in.  The evidence was broadly consistent that employees are compliant and helpful and when they're asked to come in, they come in on the basis that they're going to be paid or agree to be paid for ordinary hours, so it doesn't seem to be a problem.  And these are community sector type organisations where it's all about caring and so forth.


In relation the submission my friend made about the significance of the rostering claim, I think there's significant strength and merit in that.  The evidence suggested that everyone wanted to be nice to each other and no one wanted to compel their staff to come in on short notice when they didn't want to come in.  But the scenario my friend has painted of essentially rostering down where the buffer will be eroded, and it will be eroded – this is the buffer against ratio breaches, the buffer will be eroded because it can be eroded.


And there will be a certain financial logic that will motivate certain providers, and this is a competitive market where the for profit sector is the principal segment of it, and costs will drive a destruction of what appears to be beneficial staffing practices.  And the point is, they don't want to do it but if they absolutely have to do it because they're going to be in breach of their ratio requirements then employers will start demanding that people come in, if they're given that power.  So it is a significant claim in terms of the evidence you've heard.  And if you sit back and think about the evidence you've heard it will cause over time, and perhaps not as slowly as one might think, significant changes in the composition of the workforces of childcare centres.  It will change what appears to be a beneficial practice of generous staffing to accommodate ratio breaches.  There'll be incentives to roster down, I think as my friend has suggested.  That's perhaps all I wanted to say in response to the employer claims, thank you.


JUSTICE ROSS:  Is there anything you want to add, Ms Arrabalde?


MS ARRABALDE:  With respect to the ordinary hours claims, extending ordinary hours employees doesn't mean that centres will or can stay open longer.  So if a centre wants to change their operating hours they first have to apply to the regulatory authority and to the council.  What the council did when we moved premises was they came out with their noise monitor and they checked the sound of our gate opening and shutting and then when the children are outside they went to the nearest house and had the noise monitor and checked how loud the children were.  So they gave us our operating hours and we couldn't change that.  So extending the ordinary hours of employees wouldn't mean that centres would stay open but what it would mean is that if a parent did arrive late and the employee was - and employees were staying with the children, they wouldn't get paid overtime for that work anymore, they'd just be getting paid at ordinary hours.  That is why we don't support that claim.


With respect of the rostering claim.  Two arguments have been put forward.  One that noncompliance in terms of ratios would effect your quality rating.  Quality ratings aren't determined in that way.  The way that you get your quality rating is first you get notification that you are going to be assessed, then you have to submit a lengthy document called your quality improvement plan and that says you have to pretty do essays on everything that you're doing well and everything that you are currently working on to improve how well you're doing.


Then you get notified that the assessors will come out on a certain date or if you're a very large centre they'll come out in two days, and they only assess what happens on that day and also what you provided in writing.  So what you provide in writing, they actually do a preliminary report and then they just add to it based on what they see.  Having an issue where a staff member calls in sick on one day and you can't get staff straight away will not effect your quality rating at all.


The other issue is the noncompliance.  So because working in early childhood you have lots of people.  There is probably more illness than working in another sector.  You're in close contact, you pick up the children, there is a lot of illness and there is a lot of reasons why a staff member might not come in.  The regulatory authorities recognise this, so what you do is in the event that you are - your ratios are not compliant, you can apply for a waiver.


A waiver is more paperwork, so what you have to do is log in to a system called NQARTF system and you fill out a form, and the form basically says - you put the date, you put who you are and the nominated supervisor.  You have to say what happened, why it happened, what you did to alleviate any risk and once you've submitted that form it gets assessed within a pretty long timeframe after the event, I think it's at least 28 days, or it is 28 days, and then once you've submitted the form you're compliant.  So even if you are under ratios you can still be compliant if you submit the paperwork.


I have never heard of an instance where a centre has sent children home. The only reason that you would do that is if the children's health and wellbeing is at risk, or you feel like you can't provide a proper level of care for the children that you have based on the number of staff that you have.  But like I said, I've never heard of that happening.  People who are familiar with the children that you were looking after you can pretty much mitigate the risk if you have like a strong staff team, and you can always call agency staff.  There are instances, especially after - there have been news reports that there is flu outbreaks and gastro outbreaks.  There are instances where you will call a number of agencies and they will have no staff.  They will actually - they will actually provide you with documentation that you can submit to the regulatory authority to substantiate your waiver application to say that there was no available staff and you couldn't meet the requirement to have the ratios temporarily.


Working in early childhood is quite interesting because the only way that a regulatory authority would find out that you're not compliant is if you tell them, and you hear a lot, there's a lot of gossip that goes around and people don't say these things.  They don't flag it as something that has happened, which is why I think in the evidence that people were saying that - oh no, that never happens to us, because you would be admitting fault and I don't think anyone wants to stand in a court room and say yes, we do stuff that's illegal every so often.


The other issue that I did put in our last response to the background paper was I don't really understand how the rostering claim would work in practice.  So if for instance the staff member doesn't come and then you call somebody else to come in, if that person was rostered on for an afternoon shift and had to come in in the morning, would they have to still perform their other hours or would the whole roster for them change over the week?  So would one change, because of an absent employee, effect more than one staff?  Like, basically it affects your whole roster, and I didn't really understand that.  So if one absence could possibly change multiple employees' work schedules.


Because if a person who was rostered on in the afternoon is asked to come in in the morning because no one else could open the centre, then they - would they have to stay two shifts or would they have to call in someone else at short notice to replace the afternoon shift.  Then if they did that, then what would happen to them the next day and then the rest of the week and all of their responsibilities?


So the other thing is in early childhood, we find there's a lot of people on work - like visas that don't allow them to work more than a certain number of hours per week or per fortnight, and so that would mean that if they accepted another shift, they could not work - they couldn't legally for other reasons work more shifts.  So you would have a lot of changes with one absent employee potentially, which would be very inconvenient to a lot of people and yes, that is one of the - another reason why we don't really support that claim.  Thank you.


COMMISSIONER LEE:  Ms Arrabalde, can I just ask you about the waiver you were mentioning.  So practically how does that work?  Is it at the end of the day perhaps that you would - well you know that there might have been, just by way of example, there's three hours where I was under ratio, you then make this application for a waiver retrospectively.


MS ARRABALDE:  That's right.


COMMISSIONER LEE:  That's how it works, is it?


MS ARRABALDE:  Yes.  So what you would do is you say that you were under the minimum staffing requirements for this amount of time but it wasn't such a bad thing because we had staff who were qualified and staff that are experienced and we changed the way that we might have combined the rooms so that we do have capable staff looking after the children during that time, and you just have to list all the reasons how you mitigated the risk and also just say that there was no risk to the children at any time.  The regulatory authority, they send you a receipt for a waiver.  So you can apply for waivers for all sorts of reasons but they send you a recent but you probably will never hear from them again.  It's just a procedural thing, it's paperwork.  You put it through and it has no impact on the centre whatsoever, because you have once again become compliant.


JUSTICE ROSS:  Ms Saunders.


MS SAUNDERS:  Yes, the matters that Ms Arrabalde's raised are obviously significant.  The regulations dealing with waiver are in the national regulations but not in the bundle I've provided, so I might provide those at the same time everyone's providing their note.




MS SAUNDERS:  Just in terms of - I'd suggested to Mr Arndt that the - these staffing issues can effect your rating.  I don't mean directly that you drop a rating if someone finds out you're understaffing but staffing levels and adequate staffing levels, both in terms of providing continuity but compliance are taken into account by the assessor is as high at that goes.


DEPUTY PRESIDENT CLANCY:  So would for example if you were a habitual user of the waiver, would that effect when you have your subsequent assessment?


MS SAUNDERS:  I understand it's taken into account.




MS SAUNDERS:  I couldn't speak to the effect.  I can't imagine it would be tremendously positive but it effects the rating in that sense.






MR ARNDT:  Almost everything addressed by Ms Saunders has been addressed by us in our written material so I won't cover anymore than three issues.  The first point is just a clarification and I'm sure Ms Saunders didn't mean to and perhaps did not suggest this but the submission was made that none of the employers use the full span of hours.  Just to clarify, I assume the submission is in relation to the witnesses put forward.




MR ARNDT:  Just by way of clarification on that point.  Obviously there are a number, a great number - perhaps I'll withdraw that.  A number of providers who do use the full span of hours.  Materials have been filed by both unions in relation to spreadsheet material that contains data as to opening hours of the various providers.  We've made some submissions about how reliable those - that data is but clearly it shouldn't be in contest that there are employers who do use the full span of hours.


The second point I want to raise relates to Ms Saunders' submission that employers in this sector currently maximise the flexibility under the award - under the - that is afforded to them under the awards, and that you should use that as a basis to find somehow that employers in this sector would go on to exploit the provision - the clause and the variation that we're seeking in relation to the rostering claim.


There's a number of problems with this.  Obviously it cuts across the evidence that most, if not all of the ACA witnesses actually gave but they didn't want to enforce their employees to do something.  They didn't want to exploit their workers, they cared about their employees, that evidence has been referenced many times by the submissions of the IEU and we say that this can't be a finding that the employers would seek to maximise any flexibility afforded to them.


The second point is raised by the Deputy President, which is the actual terms of the variation.  We seek to limit it.  The words used by the Deputy President in the actual proceeding which I think is quite useful, having gone through your employees you come down to the last one and you've actually got a direct one of your employees.  Now I don't say that - I don't say that that's the Deputy President's view of how this works or his view of how it should work but I say that that's the scenario we're talking about.  We're not talking about an unfettered right to direct employees as and when required.


The third point I want to raise is to address the idea that  currently everyone is operating with the buffer and that the buffer is the thing that we must preserve and it's the buffer that makes all of these things not an issue now, but basically that they don't - people don't have to call people in is the logical progression of that.  If you've got the buffer, if someone drops out you just keep on.  Now that can't be the case.  The evidence - there was evidence that some providers used a buffer, more overstaffed, to use the other phrasing of that concept.  There was evidence that directors would come in on their days off to make sure that the provider didn't go under ratio and the primary evidence was all the evidence of - relating to people getting called in.


Calling staff, asking can you work, so and so's dropped out, and all of that evidence has been, as I said, extensively referred to.  The idea that the industry operates now uniformly with the buffer or that that somehow is required by anything is not on evidence.


I just have one point in relation to Mr Bull's submission, it's about the pressing emergency clause but perhaps not much turns on this.  I was interested because the clause 23.2(b), that exception or that caveat on the payment of overtime is a very, very, very confined scenario.  An emergency situation may include natural disaster affecting a parent and another employee at the centre; death of a child, parent - child or parent or a child requiring urgent hospitalisation or medical attention.


Now the reference was to Ms Wade's evidence that this was an example in evidence of this occurring.  I would put that Ms Wade was not talking about this clause and that's apparent by the fact that PN893 when I asked her:


How often do you need to give them less than seven day's notice to change their rosters?


She then says, as it states:


If someone has an urgent appointment or family emergency has occurred.


I don't think Ms Wade was talking about this clause and I think that's made good by the fact that the next question I ask is:


How often does that happen?‑‑‑It just all depends on who gets sick or if something happens outside, that's something I can't predict.


I'm not asking you to predict, I'm asking you how often does this happen in your experience, on average.  Does it happen once a week, twice a week?‑‑‑Every week it does, yes.  It can happen that much.


Ms Wade is talking about an employ calling in sick and needing the roster to be changed on short notice.  She's not talking about the emergency clause where a death of a child or a parent or a natural disaster.


I only have one more thing to say which is, and it's more of a respectful observation in terms of the submissions of Ms Arrabalde this morning.  All I would say is to the extent that her submissions and comments, not in respect of the regulations or the national award, those on their face, we can read those, to the extent that Ms Arrabalde has given evidence from the Bar table in respect of common practices, how things are done, how things are, I would just say that that evidence should be given appropriate weight having regard to the fact that it's from the Bar table and we are delivering closing submissions.  I would just seek to leave that in the Bench's hands.


JUSTICE ROSS:  In relation to the waiver, I take it you don't contest that that's an option that's available.  They can seek a waiver for the way that Ms Arrabalde's described?


MR ARNDT:  I don't contest it exists.  We would contest the - we would contest the characterisation of that process that's been put this morning.  The idea that, and this may not have been your impression of the submission made but it certainly was mine, that a waiver is something that you can apply for, receive a docket for and then your breach or, you know, your compliance problem is simply dismissed as if you were picking up a sandwich from a local lunch spot.  We don't have that view.


It might be if the Full Bench is minded it might be appropriate, given what I've just said about the nature of what Ms Arrabalde said today, it might be appropriate if we've given the opportunity to draft a short submission on that point.  It's not my recollection that we have in any comprehensive way addressed the prospect of a waiver and how that might interrelate to what we say is a very big problem in terms of noncompliance.  So I'm not sure what the position of the Bench is or the other parties on that point but if given that opportunity we would take it to ensure that our view as to what that means for our claim is clear.  That's all I have to say.


JUSTICE ROSS:  Thank you.  Thanks, Mr Arndt.  Look, what we'd be minded to do in relation to both the waiver point and also the other issues that have come up.  I think in your case there was the evidence supporting a proposition that was put during the course of oral argument and any response to exhibit IEU44, and anything any party wanted to say in respect of the waiver issue, and look these aren't - you can discuss - we're proposing to take a short break till 12 before we come back and deal with the remaining submissions.


It could be you could file that by 4 pm next  Thursday, any response by 4 pm the Thursday after that but give that some thought.  I mean we want to wrap this up at some point but I'm not fixated with whether it's Thursday or another time but if you can discuss that amongst yourselves then when we resume let us know where you've landed on it.  We'll adjourn until 12.

SHORT ADJOURNMENT                                                                  [11.51 AM]

RESUMED                                                                                             [12.01 PM]


JUSTICE ROSS:  Yes, Ms Saunders.


MS SAUNDERS:  Before we turn to the United Voice and individual claims if I could firstly say something briefly about the submissions that have been made by the employer parties in respect of the equal remuneration proceedings.




MS SAUNDERS:  And then also ask to be excused because the IEU has no interest and does not want to be heard on these claims.




MS SAUNDERS:  In terms of the collateral attack on ERO I have in my written submissions my response to the second background document I believe it was, possibly the first background document I'm sorry, addressed the Bench's question as to whether there's overlap.  We say no, not in substance.  The employer contentions otherwise misstate the IEU's case in those separate proceedings and I understand that it's not put on a work value basis anyway and that's accepted by the employers, so it doesn't directly arise.


I mean that misstatement of the IEU's position in the other proceedings is the central problem.  This is the wrong Full Bench to make an application to stay the ERO proceedings.  The suggestion that's been made that that Bench should sit on its hands until this Bench is done, if they want to make - if the employers want to make an application of that kind it needs to be made elsewhere.  It can't be dealt with here.  I'm not sure it could be in fact dealt with here, notwithstanding Ross' J presence.


JUSTICE ROSS:  No, probably not.


MS SAUNDERS:  Yes, that's all I wish to say in addition to the written submissions in that regard but really these proceedings - these proceedings went ahead, there was a direct inquiry last year from Ross J, proceeded on the understanding from those next to me on either side that there wasn't an overlap.  For this issue to be raised now when we are indeed in the dying days of ERO, it will finish shortly all things going according to plan, is very troubling and shouldn't be entertained.


JUSTICE ROSS:  Where did you land on the - when the additional notes would come in?


MS SAUNDERS:  I think the time that your Honour proposed is suitable; Thursday, Thursday.


JUSTICE ROSS:  Right.  Thursday, Thursday.




JUSTICE ROSS:  Thank you, and yes, no difficulty with being excused, Ms Saunders.


MS SAUNDERS:  Thank you, may please.




MR BULL:  In relation to - I'll let my friend leave the room.


JUSTICE ROSS:  Are you going to say something nasty?


MR BULL:  No, no, I wasn't going to say anything much at all.  I was going to say look, it's perhaps not a good idea me unsupervised but that is the case.  Look, in relation to what my friend just said about the so called collateral challenge, and this is really a criticism of the employers not my friend.  We don't really want to elaborate on what we have said in our submission document on 19 July 2019 in terms of priority and so forth.  We have confidence that this Full Bench will do its job so to speak and the review or the decision concerning these proceedings will be available in a timely and appropriate manner.  So I really don't want to say anything further about that, although I will say something about this sort of work value sort of conundrum, for want of a better term.


I might just hand up - this is just a pedestrian matter.  There's been some submission by the ACA concerning whether in addition to displaying who the responsible person is in a centre, the provider also needs to maintain a record.  I'll just hand up copies of some of the regulations.  The first one's - - -


JUSTICE ROSS:  Mark that MFI2.



MR BULL:  MFI2, thank you.  It appears to be abundantly clear from the legislation that there's a fairly rigid requirement to - and it's in the body of the regulation which actually creates the responsible person role, the staff record must include, so there's got to be a record of it.  Then if you turn over and the next bits and pieces are from the Education Care Services National Regulations, 177 is the prescribed documents, and if you look at 177(1)(g) it's the record for the responsible person at the service as set out in the regulation.  So that's a prescribed document.  Then if you turn over to 183 there's a fairly - it's an obligation to maintain that for at least years.  So it's more than just having a sort of cardboard tag with someone's name in a box at the front of the centre saying that that person's the responsible person.  There's a rigid obligation to actually maintain the record and it's a contravention of the regulations if you don't.


I was going to - we've made extensive, and this is a process which has had the arguments and the contentions of the alternative parties refined by background documents, which is useful on the basis that the responses and so forth are read.  Almost everything that can be said perhaps has been said so I'm not going to go over everything we have said.  Anything we have said in response to others unless there are specific questions, and I'm happy to attempt to deal with any specific concerns.  I was going to deal with one or two broad what we say are important sort of thematic concerns and I'll hopefully sit down in not too long a while.


This is actually going back to fact document.  It is important to bear in mind that I think a fair characterisation of the evidence was that the introduction of the National Quality Framework was a significant and real change in relation to the funding of the sector.  One of the sort of themes of the employers is that nothing really changed.  In relation to the responsible person it's sort of well, there's always - there's somebody who is responsible, nothing really has changed.  The evidence - and we speak to this in our first submission on factual findings from paragraph 8 onwards, is that - and this is principally evidence from operators who were from the employers' side, was that the National Quality Framework has created significant changes.


One of the ways that this change was characterised is that it creates what's called - it's a model of continuous improvement so it was less prescriptive than the previous regulations and it has a model where there's some flexibility that there's a continuous need to address the various quality standards and so forth, which in some ways is a more difficult way to regulate something that you've got to continuously address and critically engage with standards and so forth, and that obviously is relevant to the role of the educational leader.


There was also some evidence, and this came from once again the operators of services, that there was some sort of - there was a disconnect between the award and the National Quality Framework, which were obviously the two principle things that are in the minds of operators.  That's what they need to comply with if they're all obviously award reliant.  There was some evidence from Ms Llewellyn and that's quote in our submission at paragraph 19 and she's someone who had a unique perspective because she had a background in industrial relations where she says she agrees that it's desirable - well, she agrees that the National Quality Framework isn't reflected in the award and that it's desirable that it would be.


Another witness, Ms McPhail, makes similar statements.  That we would say tends to cut across the - once again one of the themes of the employers that somehow, particularly in relation to our allowances claims, that it's already packaged up into the classifications of the award.  It clearly isn't, and when you have two operators broadly saying that the award is disconnected or out of sync with the - what is the unstable body of regulation, that's significant.


Another broad sort of thematic matter I might just indicate is that the NQF is - it's a regulatory framework, it's a funding model, which is significant and as you'd be award we're having debates in other places about tailoring awards to funding models.  Essentially our allowances are both responsive to the NQF, they're not in any sense responsive to the funding model, and I'll address that in a minute and that does, we say, create some utility in terms of the imperative for the allowances.  It's a fairly fixed - it's a fixed funding regulatory model which has been there for some time and it's not the funding model.


I was going to make some broad comments about - and this is directed towards the allowance claims.  I think it can be fairly put that no significant or reliable evidence has been presented in these proceedings about what I'd call the adverse financial impact of our allowance claims if they were agreed to.  Obviously both allowance claims will require amounts of money to be paid to employees, so there's going to be a financial impact but a striking feature I would say of the evidence was that what might be termed evidence of an adverse impact was frankly pretty light on, and the employers presented a substantial witness evidence from a large number of operators and the evidence of what I would say is reliable evidence of an adverse financial impact is simply not there.


I might just make another broad submission concerning funding in the sector, and this is I suppose a - the award is dealing with a social service which is principally early childhood education and care, child care.  But it can be differentiated from perhaps other areas, for example, disability and community services and so forth, in that it's a hybrid funding model in that the funding is a mixture of fixed government funding and the operators have a capacity to charge a fee which does place a different complexion if you like on the job of yourselves in reviewing an award in terms of what relevance funding has.


In a sense childcare operators have the best of both worlds, in the sense that they have a fixed stream of income through government funding arrangements and then there's some variability in their fees, which come through their customers who are ultimately parents, and there's some security or there's some stability in the sense that childcare is not a service which you chop and change if you can avoid it.  Once you get your child at a centre there's obviously incentives to maintain the child in that centre.


I think that general observation about the funding is of relevance and it assists claims in relation to the allowances.  It's not a case as in some other areas where there's fixed government funding and there could be said to be some unfairness in imposing an additional burden where there's absolutely - well there's negligible or it's more difficult to change the inputs.


In relation to the financial impact aspect, and we deal with this in our first submission at paragraph 44 onwards.  The other matter I think is worth noting is that the evidence was almost exclusively from the for profit sector, and this is an area where you can broadly divide the operators into a for profit operators and not for profit, the community sector.  We heard from and this is once again a reasonable submission which can be made on the basis of common sense and if you like judicial notice of certain facts.


You heard from the sector which would have potentially the greatest difficulties in terms of having an additional employment cost imposed upon them because the cost base of the for profit sector logically is probably going to be a bit higher than the not for profit sector.  They have to pay tax to start with.  I'm not going to place it any higher than that but it is once again a matter of context that you've seen the worst of it potentially, if any group of employers would be able to provide cogent evidence that the allowance claims were asking the Full Bench to agree to would place them in dire straits, you've heard from those people, and that evidence simply did not come.


Now the reasons we say the - and there is some evidence which is directed towards financiality, but it's not we say material which you can place great weight on, and in a sense it's non evidence.  The problems with the evidence and we address this in our factual (indistinct) document at 44 is that there was a lot of evidence that there's over award payments, so were these allowances to be agreed they'd be absorbed in those over award payments.  The employers wouldn't have to pay them.  The so called costings assumed effectively that the employer was paying them all the time, that's clearly not going to be the case because there'll be a large number of instances where because the employees on an over - they won't have to pay them.


I was going to briefly say some things about the issue of work value which seems to continuously arise.  Our position is a fairly bland one.  The allowance claims don't concern work value because they don't effect base rates or anything which is defined at 184 of the Act as relating to minimum wages.  There's frankly a certain level of perhaps the word's intellectual dishonesty in the way that the employers have approached this issue.  It's arising in a number of these proceedings.  We're in progressive claim, which might have some effect on increasing labour costs.  It's work value, and that's clearly not the scheme of the Act.


The Act is quite precise about what relates to minimum wages.  It's the base rates, it's the casual loading and so forth.  There's been a number of proceedings where obviously terms and conditions of awards affect what employees covered by those awards get paid.  The classic example is of course penalty rates clauses, where there was an extensive proceedings where there were some reductions in penalty rates paid under certain awards.  There was never any suggestion that that related to work value.  There's all sorts of other terms and conditions that, you know, provide payments for evening work and so forth, tool allowances.  They end up putting money into the pocket of an employee but they don't relate to work value.  There's no reason to view our allowance claims any differently.


There's some talk about - we say both claims, this is the responsible person and the educational leader, both are necessary in the sense that the safety net provided by both awards is not fair or relevant when critical duties, obligations, imposed by the regulations which are unavoidable are completely absent in the industrial regulation of the area.  So broadly we say they're necessary because they'll allow a fair and relevant safety net for those employees who are required to perform these obligations.


There's significant discussion and it's in the summary document where it's best put about what is necessary and what isn't and so forth.  It's perhaps important to contextualise and sorry if I'm telling you the bleeding obvious but a modern award is theoretically an instrument with very little required content.  Theoretically you can have a modern award which has a coverage clause, a flexibility term, I think a dispute resolution clause and that could be a modern award.  People are always shocked when you tell them that terms in relation to wages are not mandatory content of a modern award.


To a certain extent when you start saying it's not necessary it's important to view the context of these instruments and theoretically a term in relation to minimum wages could be considered not necessarily, but obviously it is necessary.  The use of it's work value is frankly a fairly problematic form of defence to a claim which is really a claim for an allowance.


One of the aspects of both of the allowance claims is that they're not going to be pertinent to a particular classification.  In relation to both, a wide array of persons classified up and down the classification streams, both awards can potentially to the thing that the allowance claim will cover, and that once again is a strong argument about these claims having nothing to do with work value.  It's also, we say, a strong argument suggesting that the appropriate response to this problem is to put into these awards allowances that deal with this problem.  It would be inappropriate just to, so to speak, increase minimum wages to deal with these issues because it would be an indistinct response to the problem that wouldn't deal with the problem.  The appropriate way to deal with the problem is to ensure that the person who is required to do the things by the regulations receives some premium, some recognition.


In relation to I suppose the issue of how much the allowances should be, these are not the investment allowances they're dealing with, with some disutility in terms of the section of the Act, which classifies allowances.  There's nothing extraordinary about that.  The problem with an allowance like that is that if we are intellectually honest with ourselves, the amount of the allowance is always going to be a term of art rather than science.  It's unlike a reimbursement allowance where obviously you're able to say well, you know, if the chef's nice and it costs $58, then you get $58.


The sort of transactional analysis which the employers have urged upon the Commission in that your task is to simply look at the disutility or the value of the job done and then try and attach some value to it is, we say, simplistic and misconceived way of doing the evaluative exercise of determining what the amount should be.


JUSTICE ROSS:  If that's simplistic, what is the approach to determining the amount?


MR BULL:  Well there's a few things, I would say, which fit within the modern award objective that are relevant to the allowance.  Obviously, the disutility of the person doing the role is relevant and we're not shying away from this.  The principal justification for both allowances is that you currently have a situation where people are performing quite complex, onerous and tasks where there's a responsibility and consequences for not doing it properly and they're getting nothing.  So there was the evidence of Lena, Ms Roshen who towards the end of the day in her centre, Lena the cook becomes the responsible person.  Lena's paid no more and she just does it because she's the last one - or she's a longstanding employee and she's compliant and is dutiful to her employer.


So there's clearly an aspect where they should be recognised, but there's also a number of other considerations that are relevant and this is sort of a variation of if you don't value something, if you don't sort of put a bit of money on it, no one really cares about it, you take it for granted, clearly and it's probably most acute in relation to the responsible person allowance, that's a critical matter in terms of I suppose safety in relation to childcare centres.


Having recognition of that task by attaching some money to it has, we say, significant system benefits in terms of fortifying good practice and so forth, and making sure it's done.  So that's something which isn't directly to, if you like, the disutility or transactional analysis in relation to just getting a quid pro quo for doing something.


The point about leave allowances are both intrinsically tied up with a scheme which is about quality in childcare.  It's quite a - I must admit it took me a while for me to get my head around and it seems overtly bureaucratic that the alternative is perhaps a worse thing.  There's continuous improvement, there's quite rigid regulation but the chaos seems to be that we have quality early childhood education where things don't seem to go wrong as much as they possibly could.  So these allowances have these, what we say, broader systems benefits in terms of solidifying what now is the well entrenched scheme or regulation.


We have focused on it being one in relation to responsibility or skills that have not taken into account the rate of pay, but there are actually more broader issues that are relevant.  I was going to briefly talk to the


shutdown claim.  The evidence was fairly consistent that most - well the providers, none of the providers that gave evidence appear to shut down for substantial periods that were contemplated by the claim.  We'd say the Commission can accept our variation on the basis that the current drafting of the term is just not relevant or used.  Unless there's any questions, that's all I was hoping to say.


JUSTICE ROSS:  No, thank you.  Ms Arrabalde, did you have anything you wished to say?


MS ARRABALDE:  Elizabeth and I became involved in these proceedings when we noticed that employees are not being renumerated fairly or consistently for their work as a designated educational leader or the responsible person in early childhood settings.  The Children's Services Award and the Teachers Award were no longer achieving the modern award's objective to provide a fair and minimum safety net of terms and conditions for these employees.


Further, while educational leaders in schools are being paid an allowance in the Teachers Award for their educational and leadership responsibilities, educational leavers in early childhood centres are not, despite this work being of equal and comparable value.  Our proposed substantive changes are the introduction of an educational leadership allowance which applies to early childhood workers who are performing this role, and an allowance for responsible persons, so that these awards meet the modern awards objective.


Since the introduction of the modern awards in 2010, the early childhood education and care sector has changed significantly.  This was in part due to the introduction of the National Quality Framework with raft of changes which came into force in 2012.  While detailed, many of the elements of the National Quality Framework were not designed to be prescriptive.  Certainly there are rules and regulations to abide by but there is a certain degree of flexibility as to how standards are achieved.  The framework acknowledges the individuality of children, families and centres and the strengths within these differences.


Also within the documents there is an inherent recognition of the capability and professionalism of qualified early childhood educators who are able to make decisions appropriate to their context.  This accounts for the variability in the evidence of the roles of the educational leader and the responsible person in practice.  What is certain, however, is that employees are working as educational leaders and responsible persons in every early childhood education and care setting in Australia, as these roles are mandated by law.


With respect to the educational leadership allowance, I would first like to reiterate that the role of the educational leader did not exist in the formal sense in Australia prior to 2012.  While the idea of educational leadership in early childhood existed a few years prior to this, it was merely conceptual.  It's extremely unlikely that the role of educational leader was considered during the drafting of the awards in 2009, or that if many or any centres actually had educational leaders before the position was mandated in the National Quality Framework.


In our submission dated 26 April 2019, we provided academic evidence that shows that the role of the educational leader was considered to be new in 2012.  Arguments that there have always been educational leaders in early childhood settings are unsubstantiated, incorrect and suggest a misunderstanding of what the role actually entails.  While there have been arguments put forward that the role of educational leaders is captured in the awards, there has been no consensus as to which classifications cover the duties and responsibilities of the educational leader.


I acknowledge that the duties listed within the classifications are indicative rather than comprehensive, but the role of educational leader is as ACA put it in their response to the background document 1, clearly a developing area.  The role of the educational leader was not intended to be covered by these classifications.  The role should not simply be absorbed with the expectation that employees take on this extra work at the same rate of pay than if they were not performing this role.


It has also become apparent in the evidence that the way in which employees performing this role are being remunerated is essentially at the employer's discretion.  Some employees are being paid on the same classification than they would also be paid if they were not the educational leaders, while others are being assigned a different seemingly arbitrary classification.  Some employees are being paid above award payments and others are being given more favourably working conditions such as additional annual leave.  The absence of the explicit recognition of the role of the educational leader in the awards means that employees who are educational leaders are not being provided with a fair and minimum safety net of terms and conditions, and therefore the modern awards objective is not being achieved.


The evidence presented has also shown that the role of the educational leader in practice mirrors the role described in the literature.  The role is additional and not in lieu of other work.  The role is significant, complex and extensive and comparable to the work of educational leaders in school.  In our arguments over the course of this hearing we showed that equivalency in the role of educational leaders in schools and in early childhood settings.  Educational leadership is not the same as positional leadership and the evidence has also shown that educative responsibilities of educators and lead educators differ from the role of the educational leader.


As the title suggests, the role of all educators is to educate.  This means that more than one person in a centre has responsibility for the design and the implementation of the educational program, but only one person is the educational leader.  The role goes above and beyond their work as an educator.  An educational leader, has overall responsibility for the centre's curriculum and for every child's education and for every educator's practice.


Because the evidence has shown that educational leaders have various qualifications, and are being paid under both the Children's Services and the Teachers Award, our proposed allowance applies equally to both awards.  The allowance sought is not disproportionate, is not excessive and it's consistent with the leadership allowance for teachers working in schools.  I went into more detail in that in the response to the background paper of how we thought it slotted in.


Paying the proposed educational leadership allowance would not be administratively complex for the reasons discussed in our submission, dated 27 May 2019, and such an allowance is already being paid to teachers who have these responsibilities in school.  We're merely proposing an extension of this allowance to educational leaders in early childhood settings.


We have also proposed the introduction of the responsible person allowance.  Employees are currently performing the work associate with being the designated responsible person without being fairly and consistently remunerated.  This is also at odds with the modern awards objective.  The evidence has shown that many responsible persons are being paid the same as any other employee with the same qualification and the same experience who are not performing this role.  For employees covered by the Teachers Award this is particularly pertinent.


Other responsible persons are being assigned a classification based on the employer's interpretation of the award.  Yet some responsible persons are receiving above award payments in recognition of the value of their work and the responsibilities that they have.  With respect to the role of the responsible person, perhaps what is most important to bear in mind is that the physical presence of a person designated as the responsible person is required at all times that the centre is operating.  The centres must have clear signage indicating who the responsible person is.  Centres must keep a record of who was the responsible person at any one time and that record must be kept with the staff records for three years after the staff member ceases employment with the organisation.  This is not controversial or ambiguous.  Prior to 2012 there was no requirement to have a designated responsible person.


ACA and AFEI have sought to discredit the role of responsible person and diminish it to a role that exists purely for the sale of compliance.  Yet a recurring theme in the evidence was that it was usually the most qualified, experienced and capable member of the staff team who is the designated responsible person.  This in itself shows that the role has importance.  The responsible person has duties and responsibilities in addition to their work.  The evidence has shown the exact nature of the role in practice can vary.  This is just because all workplaces are different.  However, by definition the responsible person is the person who is day to day charge.  The mantel of responsible person may be passed on several times per day to different employees but that's purely an organisational decision.


Historically, the person who is considered to be in charge of an early childhood education and care setting was the director. The position of director still exists.  It's an important role which has become more onerous since the introduction of the NQF in terms of the associated administrative burden.  However, there was and still is no requirement that directors remain physically present at a centre during its hours of operation.  The Children's Services Award and the Teachers Award recognise that directors are persons who are in charge and this responsibility attracts an additional payment which is incorporated into the classifications for the Children's Services Award and is in the form of an allowance in the Teachers Award.


Similar to directors, responsible persons are formally designated as being in day to day charge but the roles of the responsible person does not currently attract an additional payment.  This is at odds with the modern award's object, the principle of equal remuneration for work of equal or comparable value.  A director can be but is not necessarily the responsible person.  The responsible person can be an employee of any qualification and so the proposed allowance should apply to the Children's Services Award and the Teachers Award equally.


Employees performing multiple job roles, for example, employees who have the title of director but also take on the role of responsible person should be paid for their additional work and the additional duties and responsibilities that they have.  ACA and others have repeatedly argued that the responsible person does not bare legal responsibility for certain issues and does not face monetary penalties for noncompliance.  This does not mean that the role does not exist or that it's unimportant.  It's completely unreasonable to hold someone who maybe only in charge for the duration of the lunch break legally accountable for things such as (indistinct) that's made out of material that's easily scalable.


As it stands the responsible person does not have the same legal responsibilities as the nominated supervisor or the approved provider but they do have a role and duties and responsibilities.  The relevant laws and regulations provide a foundation for practice but as the evidence has shown the work of the responsible person is so much more than ensuring compliance.


Paying the proposed responsible person allowance is not administratively complex.  There's only one responsible person at any one time and as previously mentioned, accurate records must be made and retained.  We propose the responsible person allowance equal to the director's allowance in the Teachers Award because the roles of both the responsible person and the director involve an employee taking responsibility for the day to day operations of the service.  The responsible person must have sufficient knowledge, skills and understanding and an ability to effectively supervise and manage an education and care service.  The quantum of the allowance sought is consistent with the modern awards objective and the principle of equal remuneration for work of equal or comparative value.  Thank you.


JUSTICE ROSS:  Thank you, Ms Arrabalde.  Any responses?  Yes, Mr Arndt.


MR ARNDT:  Just noting the time.


JUSTICE ROSS:  We're going to keep going.


MR ARNDT:  We're going to keep going, excellent.


JUSTICE ROSS:  Well we were, I'm not sure - - -


MR ARNDT:  No, that's all.  I just wanted to - I will be slightly longer with this than I was earlier this morning and it may be that Ms Whish has some discreet submissions to make about the Teachers Award.


JUSTICE ROSS:  How long do you think you're likely to be?  We don't want to turn this into a form of torture, so you - - -


MR ARNDT:  Anymore than it already is.  Look, I'm going to be more than 17 minutes, I think, which takes us to one.


JUSTICE ROSS:  And then there'll be the responses.


MR ARNDT:  Carry on?


JUSTICE ROSS:  Nothing like home to be able to focus the mind, Mr Arndt.


MR ARNDT:  Precisely and getting some stitches out of the head.


MR BULL:  It wasn't me.


JUSTICE ROSS:  Well you say that, Mr Bull, but you know - - -


MR ARNDT:  I want to begin with the allowance claims.  Now it's really important to understand that these allowance claims relate to someone's designation as a responsible person or educational leader, and it's under the national law, so we're not talking about necessarily what someone does to become entitled to this.  We're just talking about their designation as these things under the national law.


JUSTICE ROSS:  Well the national law also describes (indistinct) those information sheets it gives some context to what's expected of someone in that designation.


MR ARNDT:  I accept that.  I guess the point I'm making is that unlike a modern award where someone becomes entitled to a particular rate of pay based on what they do falling into a particular classification, this is - you're named an educational leader or a responsible person and you receive the allowance if made.  Now this presents a challenge for United Voice and Ms Arrabalde, because they have to establish a basis for the claim.  The challenge is a significant one because the evidence has thrown up some


real issues about what these designations actually mean.  As I see it, it boils down to three questions for the Bench.  The first question that I think needs to be dealt with is are the current awards constructed in such a way where it's accepted that the current classifications and pay rates contemplate and compensate employees who may be so designated?


The second question and the second and third question are connected.  If the awards aren't constructed in such a way or if the awards don't incorporate these designations and the responsibilities that they have, is there a basis for providing compensation to employees who are so designated, how would you assess that basis or on what basis would you award that compensation.  And then there's the quantum issue, which is how much you pay.


Now an accusation has been made twice that there is a legal of intellectual dishonesty on the part of those who I represent to claim that work value has relevance in these claims.  To be completely frank I don't understand the allegation on a number of bases.  One, it's very clear we don't say that 156(3) applies.  We do say that there needs to be some basis for the awarding of these entitlements and we say that the nature of the work, the value of the work, the requisite skill required, the responsibility, those are centrally relevant to making that determination.


My reading of the background paper and United Voice's responses to that background paper is they agree with that proposition.  I don't understand the claim for intellectual dishonesty.


JUSTICE ROSS:  I don't think you to spend much more time and I don't think we'll be making a finding that you've been intellectually dishonest.


MR ARNDT:  I will not.  I only raise it to say that there needs to be a basis and in our view there's no basis made.


JUSTICE ROSS:  Well if there's no basis, you're sort of left with a - it's the vibe type proposition.


MR ARNDT:  It's an evaluative exercise, which I'll get to hopefully quickly.  Now back to my three questions.  The first question, does the award currently contemplate or compensate for these designations.  Now we say it can't be seriously suggested that at least at some levels the award does.  Even if you look at - you open the award up, you look at the classification structure, it identifies that a director is talking about the Children's Services Award, the director is responsible for the overall management and administration of the service.  So that's the director.  How that could differ from the responsibilities which are claimed to attach to the responsible person designation, I'm not sure.


If you go down, assistant director or level 5 responsible for the day to day management of the centre or service in temporary absence of a director for management and compliance with (indistinct) statutory quality assurance issues.  Level 4 is obviously a different classification description but again we see contemplation of the very work, the very duties, the very responsibilities that are claimed to need compensation in the form of this allowance.  There's also the specific higher duties clause in relation to other employees who might be elevated up the chain so to speak.


So the United Voice submission and the submission was also made by Ms Arrabalde this morning that the responsible person must be on-site at all times, and that's not necessarily a requirement of other parts of the award, and essentially this is the magic bullet which makes it different and all things flow from that, we say shouldn't be accepted.  Even if that was accepted as a basis for argument it doesn't engaged with the proposition that just because the responsibility is required under the award, let's say for a director, could theoretically be performed offsite, it doesn't mean that when that person is on-site performing those duties that they're not the same duties as the duties of a responsible person.


Moving onto the second question; if the concept is not - if the concept or the compensation for the responsible person is not in the awards, is there a basis for providing such compensation?  There's a legal question as to the value of - the responsibility provided to these responsible persons.  It's not in contest that responsible persons who are persons in charge, so not the nominated supervisor and not the approved provider, they don't have any additional legal obligations.  But then there's also the lay evidence.


On my reading of the lay evidence, in terms of what responsible people actually do, it seems like it differs based on their classification and based on who they are and the hierarchy of their centre.  From the evidence of Ms Wade, Warner, Farrant and Mravunac, the employees who are filling in as responsible for directors while a director is offsite or the ordinary responsible person is offsite, have a more limited autonomy in terms of supervision, decision making.  The evidence didn't disclose that responsible persons necessarily - are necessarily in charge, while the director is offsite.  We had evidence of people phoning to ask clarification of staffing issues, notification of incidents, evidence of a number of factors.  The evidence also disclosed that somehow safety falls solely to the responsible person.  The evidence clearly was that all members, all staff of a childcare centre are responsible for safety and that somehow a responsible person so designated carries the can for safety is just not made out.


Turning to the last question, if there is a basis for providing compensation what should be the quantum of that compensation, and this is the particularly difficult proposition, the vibe proposition for United Voice.  It seems to the parties I represent that the higher up the classification structure you go the plainer it becomes that being responsible in the way that the designation as responsible person requires is more and more subsumed by the award, clearly.  In that sense, even if the - but even if the responsibilities and duties were uniform you then would still have to quantify what the amount was.


I don't want to labour the point but the United Voice have gone to some lengths to persuade the Full Bench that it's an evaluative judgment, it's a fair submission in that a lot of what the Full Bench does is evaluative and we are not talking about a reimbursement claim.  It's not correct that we can just dismiss an assessment of the value of this work.  That assessment needs to be made and we say that despite the fact it's not merely a quid pro quo that has to have a very significant part of the Full Bench's assessment.


I would raise one point about the UV's focus and emphasise on the so called system benefit that imposing an allowance would create would supposedly reinforce good practice to designate a senior employee as responsible person.  We say that this should be a peripheral concern for the Full Bench.  There is already a requisite standard of who is a responsible person, it's in the NQF, a responsible person needs to be 18 years old, have an adequate knowledge and understanding of the provision of educational care to children and have an ability to effectively supervise and manage an education and care service.  That is the requirement.


The system benefit of inducing employers to - making sure that responsible persons are so senior, it seems in the submission of Mr Bull, so senior that they're on a higher award wage rate and so that you can - I mean, the effect of the submission is that you would assign it to someone on an above award wage rate and essentially they would absorb the allowance into their pay rate.  That should be rejected.


Moving on to the educational leader allowance claim.  I don't want to, certainly don't want to repeat our submissions on this but I would like to stress a few key points.  It is probably worth addressing for educational leadership the second and third questions, whether there is some value in the work worthy of compensation or other matters as well as the quantification of that value.


The first critical point is, it was disclosed in the evidence that educational leaders are provided with non-contact time in which to perform their duties.  It means that the compensation they receive during that time is in effect compensation for performing educational duties.  The UV makes a submission that the provision of non-contact time in which to complete work is not compensation for the value of the work.  It's probably technically true but the money that you are being paid in the non-contact time is the compensation that you are receiving for performing your duties.


The second point of relevance is  that there's a huge variation in the role that educational leaders actually undertake in services.  That is not surprising when you look at the over-arching framework under which services, educational leaders and other employees are working in terms of what an educational leader does, what criteria or qualification or you need to be an educational leader and what the role actually entails.  The Full Bench has heard a great deal about the guidance materials that suggest educational leaders - what educational leaders should aspire to achieve, the attributes that they should have.  These are clearly educational policy materials, in our view they are not materials which speak to minimum industrial standards, and that is important.


Given that these proceedings concern the establishment of a minimum safety net - - -


JUSTICE ROSS:  Can I just go back to that last point.  What is the significance of the distinction?


MR ARNDT:  The significance of the distinction is the materials which are in evidence, which - and to use Mr Bull's words, it's a form of - it's a continuous improvement system.  There are materials in evidence which speak to best practice for educational leaders.  There are materials in evidence which speak to what we would characterise as aspirational, this is what educational leaders should strive to achieve.  They are not hard minimum standards of what they're meant to do, what they have to do, what criteria they have to fulfil.  That is relevant because what we are doing here is seeking to establish a fair and minimum safety net.


JUSTICE ROSS:  Does it follow that we ignore them or is it a question of - how do you take them into account?


MR ARNDT:  Without wanting to be glib, I mean, it is an evaluative judgment.  What we would seek to persuade the Commission of and the Full Bench of is that the view of educational leadership, which was put by Dr Fenech, the view of educational leadership which is put in the material cited by Dr Fenech and cited by the other parties in support of this claim is - that conception of an educational leader is not required in the sense that the industrial language would understand required from an employee performing this role.


We are not concerned with what the role may do or what is going to achieve optimal results or what is going to be best for all the people in the system, and it is a very important system because it includes parents and children and all of the things that everyone agrees on.  We are also not talking about, and to use the terms specifically used in the framework, we are actually - in this place we are not talking about exceeding standards, we are talking about the fair and relevant minimum safety net.  So to the extent that an operator is exceeding there is a very real question as to whether that is the requisite standard that we need to meet here, and we would say not.


Perhaps I might just provide an example of Dr Fenech's cross-examination which is instructive.  Dr Fenech's evidence was that educational leadership required a list of attributes and skills.  Dr Fenech acknowledged that not all educational leaders pass muster.  Not all educational leaders came up to Dr Fenech's standard of what an educational leader is required to do.  Dr Fenech then said that in her opinion it would not be possible to fulfil or to satisfy the National Quality Framework to satisfy the requisite standard unless you had those relevant skills.  The critical point is that Dr Fenech and no one has been able to identify any instance of where an educational leader not coming up to the mark that has been put in Dr Fenech's evidence or by United Voice as to what is required from these roles - no one has provided any evidence that there is any consequence to not coming up to that mark.


I'm not talking about the standards - the quality standards - I'm talking about the specific conception of what an educational leader does, who they are, the criteria, what makes an educational leader, which is the very basis on which this claim is made.  In my submission, that suggests that the standard advanced by United Voice is not actually the minimum practical standard and that has direct relevance to what we are doing here in relation to the fair and relevant minimum safety net.  I think I may have exhausted that topic.


Turning to the last question in relation to the overlap between educational leaders and the awards, at very least the Full Bench needs to turn its mind as to that overlap.  Again, it is apparent and it is our contention that the duties which are claimed to be incorporated and required by educational leadership are incorporated into the various levels of the awards.  It is obviously not specifically cited in the awards, but the aspects of educational leadership, you can find them in the awards.


We would say that overlap is relevant to the assessment of the quantum of the claim, as well as to its granting at all.  An example of that would be Ms Mravunac, who wasn't an educational leader, but she was the director and she readily acknowledged that she was the driving force behind educational leadership at her centre.  It's what directors do.


If I can move more swiftly now onto the non‑contact allowance claim.  This is a claim to increase the time off the floor for room leaders and educational leaders.  We would rely on our previous submission, but the only point I would make is that obviously this needs to be balanced against the fact that an educational leadership allowance is also being sought.  We potentially have the scenario where an educational leader is currently getting non‑contact time.  United Voice is seeking that that non‑contact time in which to perform their educational leadership duties is extended, while at the same time also seeking an allowance for the payment of those duties.


The training allowance claim, I'm content to rely on our previous submissions, only to note that the evidence - or maybe to re‑emphasise that the evidence seems solely directed at CPR and first aid training.  We didn't really hear about anything else.  The laundry allowance, I seek to rely on my written submissions, as I do with the higher duties claim and the annual leave question.


The only remaining question is the sun protection claim.  Our clients had previously indicated we wouldn't oppose a variation of this clause to include hats and sunscreen only and provide for reimbursement where expenses were reasonable and receipts provided.  The UV, when asked, has indicated that it would be willing to restrict its claim to hats and sunscreen, but wouldn't limit those expenses to reasonable expenses or required provision of receipts on the basis that that caveat would then fall onto all the other things that were covered by the clause.


I just thought it's worth noting that that clause is to do with protective material; gloves, aprons and goggle expenses.  I don't really see the mischief in requiring that reimbursement for gloves, aprons and goggles be reasonable and that a receipt be provided for those purchases.  If there aren't any other questions, they're my submissions in reply.


JUSTICE ROSS:  Thank you.  Ms Whish, were you going to say something about teachers?


MS WHISH:  Thank you.  I will just speak specifically to two matters today.  It's really in relation to the crossover between the individuals' claim and the ERO work value claim.  Secondary to that is also in relation to some of the matters that were raised today by Ms Arrabalde about the leadership allowance in the Teachers Award and how that might cross over with the United Voice claim and the individuals' claim.


Firstly, if I could take the Bench to clause 15.2 of the Teachers Award.  That is the leadership allowance that I'm referring to today.  It can be at times slightly confusing because in that clause it specifically references educational leadership duties, but those are specific to a teacher in a school.  It later goes on, which might assist the Bench, to outline a structure for those leadership allowances which ranges between teachers looking after 100 to 600 students.


When I say "looking after", there is a level of responsibility that's outlined in that clause and it includes things such as responsibility for the management of a major department or pastoral care or educational leadership position of equivalent status.  I draw your attention to those details because I simply want to say that no evidence has been put to draw a comparison between primary school teachers perhaps that might hold one of these positions - for example, a principal or a major head of a department - as against an early childhood teacher who holds the educational leader position for an early childhood service.


One simply couldn't insert in there that this no longer applies to teachers in schools and that that clause could apply to teachers in early child care services without having first determined that the work of those primary school teachers is comparable to the work of the teachers performing an educational leader role for an early childhood service.  That brings me to the concept of an overlap between work of primary school teachers and work of ECTs who hold an educational leadership position.  The overlap was raised as a concern by the ECEC employers last year and that was before his Honour.


All the parties, excluding the IEU, for a variety of different reasons agreed on a way forward.  That was irrespective of those parties' individual views.  The IEU didn't consent to that approach.  All we would wish to say today is to press the ECEC employers' submission that educational leaders can be both teachers under the Teachers Award, educators perhaps holding a diploma under the Children's Services Award, directors - we've established that that could be either award - and we submit that it is most appropriate for this Full Bench to make a finding in relation to the role of the educational leader and whether or not any allowance is granted.


The fact that this Bench doesn't have any evidence to compare the role of a primary school teacher with that of an early childhood teacher who also holds the educational leadership position, is a matter that will be decided on.  Thank you.


JUSTICE ROSS:  Thank you, Ms Whish.  Ms Shaw?


MS SHAW:  I'll be brief, as well.  With the educational leader and responsible person, our position is in line with ECE's submissions.  Regulation requirements for a responsible person and educational leaders allowance is already known to the award and thus has been taken into account in the rates of pay.


We draw the Commission's attention to our response to question 7 of the background paper 1 filed 10 July which discusses that the duties presented in the award are indicative duties.  It submitted that the classification structure is designed to suit contemporary circumstances of the industry and it can accommodate changes in those circumstances from time to time.  That quality ensures that the award is relevant.


That being said, if the Commission is otherwise persuaded to grant an allowance, it is our submission that the Commission could not be satisfied that the amounts sought are equitable.  We again state that the amounts are significant and disproportionate to the compensation for the responsibilities as outlined in the regulations.  We have attached some tables which discuss a large amount of the allowances in our first submissions filed on 17 April.  We again support that the requirements for this role should be taken with reference to the regulations only.


To briefly address the higher duties claim, when considering the claim by United Voice to delete clause 18.1 of the award or in relation to any matter, the Commission must take into account the merits of the matter.  United Voice has failed to provide any probative evidence to demonstrate that the award's current provisions that have been in the award since modernisation are not acting as an appropriate safety net.  There is no case to make the orders sought by United Voice.  In relation to the training allowance, laundry allowance, sun protection claim, annual leave claim and the non‑contact time, we rely on our written submissions.


JUSTICE ROSS:  Thank you, Ms Shaw.  Mr Bull?


MR BULL:  I will be very quick.  Just in relation to what Mr Arndt said about the three criteria, the first one is that the employers basically contend that the current awards are constructed to compensate the responsible person and the educational leadership role.  Frankly, that's rubbish.  In both cases these designations happened after the awards were made.


In the very general sense that the classifications of the awards speak to persons classified under them having responsibility and educating people, yes, but essentially the idea that the current classifications incorporate these designations that happened after the awards were made is a species of "it's the vibe argument", because obviously people are supposed to be responsible and educated, therefore the responsible person role and the educational leader role are already incorporated.


In relation to the quantum, we're not trying to be slippery.  It is an evaluative exercise and it's difficult for us to say much more than that.  The requirement of, for example, the responsible person to be on site is a significant way to differentiate the responsible person designation from the higher classifications of both awards because that person has to physically be there.  The director or assistant director, she can fulfil her duties in her classification elsewhere for some part of the day.  You can't do that as a responsible person.


I would just reiterate, I think what we have termed "system benefits" are reasonably apparent and they're a reason for this Full Bench to entertain inserting the allowances into the award.  There was a submission put about non‑contact time and effectively that educational leaders are currently compensated under the Children's Services Award because they will get non‑contact time.  Once again, they get non‑contact time because other persons covered by the award will be involved in programming duties.


They don't get it because they're an educational leader, so in the context of a centre where there is a room leader and other child care workers involved in programming they all get the same amount, but the educational leader will have significantly more responsibility in terms of programming and so forth.  That's an example where the suggestion that the award compensates already for a role is - when examined, it simply has no substance.


I may have misunderstood it, but there was a submission put to the effect that the NQF is of a nature as not to be something which the Commission, in relation to constructing a safety net - which is ultimately a minimum standard - should have regard to.  As I understood the submission which was put, it is that partly because it's aspirational because it has these high standards that it's inappropriate to incorporate aspects of it into a safety net instrument.  I would simply say that's counterfactual with what the NQF is.  It is the - - -


JUSTICE ROSS:  I don't think that was what Mr Arndt was putting.




MR BULL:  Well, I may have misunderstood it.


MR ARNDT:  Guidance material.


MR BULL:  Maybe he was saying that - - -


JUSTICE ROSS:  He was directing, as I understood it, our attention to what the regulatory framework required as opposed to what others sought to say might be best practice or information or material and he was drawing a comparison between - well, drawing the link between the fact that we're setting minimum terms and conditions, therefore within the regulatory environment we should look at what are the minimum requirements in that framework.  That's as I understand it.


MR BULL:  Yes, and I did understand it in the context of discussion of the concept of continuous improvement and so forth.  The point I was going to make is that these two roles, educational leader and the responsible person - perhaps less so with the responsible person role - they're not sort of best practice; they're what you have to do.  They are minimum standards in that sense.  The continuous improvement framework is in some ways - it's more onerous than having fixed goal posts because you never quite get to a point where you've achieved the standard because the model is that you can always do better.


In relation to what we say should be the subject of allowances, these are not aspirations.  They're just things that you have to do.  They're not recognised in the current safety net and it's appropriate, we say, that they should be.  They're part of a model of aspiration, but in themselves they're not.  It's trite to say that there is going to be variation and different levels of attainment within the sector, but it's appropriate that minimum things that have to be done are reflected in the industrial instrument and industrial reality of a sector.


One other issue just about the idea that the current classifications incorporate the responsible person and the educational leader role.  The structure of the classification in the Children's Services Award particularly is that there are indicative functions.  You don't have to do all of them.  There is a broad range of them.


One of the ways you can differentiate the designations that we say should be the subject of allowances - there's nothing indicative about being the representative or the educational leader.  That's something that the person has to do.  A level 4 can do more or less educational work than another level 4.  If that person is the educational leader, there's nothing indicative or optional about performing that role.


I broadly agree with my friend's characterisation of the discussion concerning the sunscreen claim.  There was some agreement between the parties, but unfortunately we came to grief over the issue of receipts and the insertion of the word "reasonable".  We have some concern that both those additions would create a level of administrative complexity which is just not appropriate for what we're dealing with.


There's no evidence that child care workers are tickling up their employers by having the world's most expensive sunscreen or getting expensive hats and so forth.  It's just simply, we say, not appropriate and there's a common-sense way these things will work where obviously employers have the ability within their discretion not to pay ridiculous claims for overpriced sunscreen and so forth.  That's perhaps all I want to say and I thank the Full Bench for its time with this matter.


JUSTICE ROSS:  Ms Arrabalde?


MS ARRABALDE:  Thank you.  I would just like to say something about the responsible person and that it's incorporated in the classification of director.  I'm not saying that it isn't.  What I'm saying is the director doesn't have to be the responsible person.  If you have two directors, one is being the responsible person and one is not, it's not very fair that they both get paid the same even though one of them has the responsibility, has the duties, does the work and the other one doesn't.


It is something that has been introduced after the awards were drafted, so what it essentially means is the people working in the early childhood sector - we have laws and changes put upon us all the time.  If the awards aren't changed, it means we have to just accept that, take on these responsibilities, take on these extra roles and not receive any remuneration for it.  Dr Fenech also in her evidence said that she knows of a director that was away for three weeks and someone else had to be the responsible person.


Also in one of our submissions, I had a statistic that on average centre directors work 33 hours a week.  That was a submission on 14 March 2019.  So the directors aren't always there, they're not always the responsible person, they don't have to be the responsible person, but sometimes they are.  What I'm arguing is that it's just not fair that you can have two employees where one has to do the work and one doesn't and they get paid the same, and that this work didn't exist before.


With regard to the educational leader, the idea that they get the standard non‑contact time and that's enough to compensate them for their work, that's not really compensation.  There has been lots of evidence about what the work of an educational leader is, but of course it's to design and implement an educational program.  When you're doing that, you have to work with the children.  You can't be away from them.


You have to have time where you do paperwork obviously, where you're not working directly with them, but to say that it's compensation being away or off the floor - non‑contact times means you're not working directly with children, so that can mean typing on a computer, so if you type on a computer you can't be counted, or if you're physically away.  The role requires some sort of physical presence; an awareness of the children and their learning needs.


You can't simply remove yourself from the situation and say, "Oh, yeah, that's enough compensation for the work that I'm doing because I don't have to work with the children."  Working with the children is, you know, most of your role and to remove yourself is not a perk necessarily.  I think that money would be compensation for doing the extra work, but actually, you know, sitting on a computer which is non‑contact time by definition, is not compensation.


Apart from that, any educator gets non‑contact time.  Educational leaders don't get any extra non‑contact time.  An educational leader, especially in most settings - and I think this came across in the evidence - they work with children and have the role so that they will have responsibility for their day‑to‑day work, as well as doing the extra work.


With regard to the ideas about the documents, about educational leadership and Dr Fenech's evidence that - what she has said about educational leaders, that's all aspirational, well, that's - and like it has been said a few times, we're working in a framework of continuous improvement.  Prior to the National Quality Framework there was no expectation that you would have to prove how you were doing better than you were previously.


I mentioned the Quality Improvement Plan - the QIP - which has been alluded to a lot of times in the evidence.  That is how you prove that you're continuously improving.  You have to keep records of how you're doing better, what you're aspiring to do.  It has got columns in a template which you can choose to use and I would say that most people would choose to use that because it's easy for the assessors to recognise that you have included all the information.  You have to say what you're currently doing and how you can make what you're currently doing better.


If the documents were not aspirational, like, I don't know how you could be working and continuously improving.  You have to have something to aspire to and because this educational leadership is something that is grounded in theory - I think no one would argue that most early childhood workers are not researchers and theorists, so you need something to guide your practice, to look at and to inform your practice.  With an aspirational document you would not be able to perform your work because you can't participate in the continuous improvement framework.


Like Stephen has said, the way that the National Quality Framework has changed the sector is that you are never good enough.  No matter how good you are, you can be rated as - you can pay for your ratings, be an excellent centre, but you are never good enough.  Once you get your rating, you can't continue your practice.  Once you get to the next rating visit, which is now starting to roll out because we're five years - they started the assessments very slowly, so this year and last year we're starting to see the second assessment rounds a lot more frequently for the higher rated centres, because if you're a higher rated centre they'll only come out once every five years because you've earned your autonomy, so they don't check you as much as a centre who is operating at the minimum.


What you have to prove though is that you're better than the last time that they assessed you, so you can never be stagnant, and that is probably one of the hardest aspects of the role and the job; that you always have to be thinking how can I be better?  So you need something to aspire to, which is why ACECQA has put together the documents in that way.  Dr Fenech is a university professor, as she identified herself.  That's how they teach students to be; you always have to be better.


You have to be working on yourself as a person, you have to help the staff develop, which is why mentoring is so important, and you have to help the children be the best that they can be.  So if you're not continuously putting extra time, extra work, extra effort, you are not performing your role correctly.  To say that the classifications are absorbing all the changes in the National Quality Framework is just incorrect.  There was never these expectations before 2012 that were put upon employees in the sector.


The other thing is I don't think that the award should just assume that centres who are operating in what's called a quality framework - so every early childhood education and care setting - if you're registered, if you're approved by the regulatory authorities, you're operating in a quality system, so for the award to say, "Oh, I'm only going to cater for the minimum, the bare minimum, that an employee does," I don't think it is right.


Also the classifications covers some elements of - like, there is a little bit here, a little bit there.  None of them actually cover the role at all and I think that because any employee is covered by the classifications, an employee that does the work of an educational leader or even a responsible person, should be paid more than a person that doesn't because it's a role that you have to have.  Some poor person at the centre has to do that role and if they're working an employer that is just going by what they have to do, they're not getting paid any extra for it.


In the response to the background paper I did talk about Ms Mravunac and how she said that in her role as director she supports the educational leader and oversees the program, but she also says that she used to be the educational leader and that she is currently mentoring the current educational leader.  I think that her evidence is showing a personal experience rather than typifying what directors do and what educational leaders do.


Saying that, it's the same argument that if you have a director that is an educational leader and the director is not an educational leader, it's not fair that one person has to do that job and be answerable to the assessors when they come and visit, because they want to speak to the educational leader.  There are specific questions in the National Quality Standard, which has been submitted as an exhibit, that are asked of the educational leader so they have a role - and they have an important role - in assessment and ratings in the actual visit, but they have a role that the entire time that they're working, they're performing that additional role.


The last point is with regard to the comparability between educational leaders in early childhood settings and educational leaders in schools.  I did provide a little bit of history in a previous submission of how the educational leadership as an idea came to be.  It was a result of a study - a longitudinal study - in England that found that centres that had educational leaders had higher quality outcomes for children than centres that did not.


When we had a new government here and they were looking at the state of child care, as it was then called, they looked to all the research and they said, "Look, we need to aspire to have quality centres in Australia.  We need to look after our children, have the best outcomes, so we need educational leaders."  There is not much information about educational leadership in early childhood because it's still an emerging discipline area.  There are a handful of researchers, including Dr Fenech, that are trying to research this and develop the research base.


The way that we establish comparability between the work of educational leaders in early childhood settings and in schools is to look at the Australian Standards for Teachers.  That actually has a section - which I have included in a previous submission - which talks about the role and responsibilities of a lead educator in a school and that compares to the role and responsibilities of an educational leader in early childhood service.  For teachers it's very simple to see that, yes, the work is comparable.


For New South Wales - I know about New South Wales because I live here - we have our accreditation system.  We pay the same amount of money as teachers in schools and we're covered by the same standards.  We're all teachers and covered by the same standards.  They brought us into line.  They would not have brought us into line with the Australian Professional Standards for Teachers unless their work was of equal comparable value.  That I think is a clear sign that early childhood teachers are performing the same role, because otherwise they would not have put us in the same system and in the same framework.  So for teachers, the comparability is very obvious.


Because educational leaders don't have to be teachers, we have said, well, if teachers are comparable then other employees with other qualifications are also comparable if they're doing the role.  It's the same role.  I think that's all.  Thank you.


JUSTICE ROSS:  All right.  Nothing further?  Mr Arndt?


MR ARNDT:  I might just make again hopefully a respectful observation that there are aspects of what Ms Arrabalde has just put which are evidentiary.  The aspect which particularly concerns me is the characterisation of the historical legislative frameworks.  I can't say hand on heart whether I'm sure that we've addressed this in our previous submissions, so I might - - -


JUSTICE ROSS:  I think it was put in Ms Arrabalde's previous submission.


MR ARNDT:  If the Commission please.


JUSTICE ROSS:  Nothing further?  Thank you very much for your submissions.  I hope the stitches go well, Mr Arndt.  We will adjourn and reserve.

ADJOURNED INDEFINITELY                                                           [1.34 PM]



MFI #1 EXTRACT OF NATIONAL REGULATIONS..................................... PN58

MFI #2 COPIES OF REGULATIONS............................................................... PN385