Independent Education Union of Australia
[2021] FWCFB 2051
•19 APRIL 2021
[2021] FWCFB 2051 FAIR WORK COMMISSION
DECISION
Fair Work Act 2009
s 302 - Application for an equal remuneration order
s 158 - Application to vary or revoke a modern award
Independent Education Union of Australia
(C2013/6333 and AM2018/9)
VICE president HATCHER
DEPUTY PRESIDENT DEAN
DEPUTY PRESIDENT SAUNDERSSYDNEY, 19 APRIL 2021
Application for equal remuneration order for early childhood teachers - Application to vary Education Services (Teachers) Award 2020 on work value grounds
CONTENTS
Paragraph A. INTRODUCTION AND BACKGROUND
A.1 The applications and the proceedings
A.2 Overview of the teaching profession
A.3 The regulatory framework for teachers in Australia
A.4 National regulation of the early childhood and care sector
A.5 Development of national curricula
A.6 Educational Services (Teachers) Award[1]
[1]
[8]
[14]
[31][53]
[65]B. THE IEU’S EQUAL REMUNERATION APPLICATION
B.1 The application
B.2 Principles applicable to equal remuneration applications
B.3 The IEU’s primary comparator – primary school teachers in NSWB.3.1 Comparison of pay rates
B.3.2 Whether an appropriate comparatorB.4 The IEU’s alternative comparison – professional engineers
B.4.1 Gender and remuneration comparison
B.4.2 Work value comparison – evidence
B.4.3 ConsiderationB.5 Conclusion
[77]
[77]
[88][95]
[96]
[101]
[111][112]
[118]
[194]
[208]C. THE IEU’S WORK VALUE APPLICATION
C.1 The application
C.2 Statutory framework and general principles
C.3 The IEU’s contentions
C.4 The IEU’s evidentiary case
C.5 The ACA’s case
C.6 The ACA’s evidence
C.7 AFEI submissions
C.8 Submissions of other interested parties
C.9 Consideration - whether adjustment to EST Award rates justified by work value reasonsC.9.1 History of federal award regulation of teachers
C.9.2 Whether EST Award rates are properly fixed minimum rates
C.9.3 Work value decisions in New South Wales
C.9.4 Findings re work value change
C.9.5 Conclusions re work valueC.10 Consideration – what is the appropriate adjustment to EST Award rates to properly reflect work value
C.11 Consideration – the modern awards objective and the minimum wages objective
C.12 Next steps[209]
[209]
[213]
[222]
[234]
[459]
[473]
[525]
[534]
[538][540]
[560]
[564]
[588]
[645]
[646][660]
[666]
ABBREVIATIONS
ABS - Australian Bureau of Statistics
ACA - Australian Childcare Alliance
ACARA - Australian Curriculum, Assessment and Reporting Authority
ACECQA - Australian Children’s Education and Care Quality Authority
ACT Child Care decision - ALHMWU re Child Care Industry (Australian Capital Territory) Award 1998 and Children's Services (Victoria) Award 1998 - re Wage rates [2005] AIRC 28, PR954938, (13 January 2005)
ACTU - Australian Council of Trades Unions
AEU - Australian Education Union
AFEI - Australian Federation of Employers and Industries
AFPC - Australian Fair Pay Commission
AIRC - Australian Industrial Relations Commission
AITSL - Australian Institute for Teaching and School Leadership
APEA Report - Professional Engineers Employment and Remuneration Report 2017
APST - Australian Professional Standards for Teachers
AQF - Australian Qualifications Framework
ATAR – Australian Tertiary Admission Rank
CCER - Catholic Commission for Employment Relations
CELC – Catholic Early Learning Centre
CELCs - Catholic Early Learning Centres
COAG - Council of Australian Governments
CoE Award - Teachers’ (Victorian Government Schools) Conditions of Employment Award 1995
CS Award - Children’s Services Award 2010
ECT Award - Victorian Independent Schools - Early Childhood Teachers - Award 2004
EST Award - Educational Services (Teachers) Award 2020
EYLF - Early Years Learning Framework
FW Act - Fair Work Act 2009 (Cth)
ICT - Information and communication technology
IEU - Independent Education Union of Australia
Interim IE Award - Independent Education (Victoria) Interim Award 1994
Interim GS Award - Teachers (Victorian Government Schools Interim) Award 1993
Manufacturing Award - Manufacturing and Associated Industries and Occupations Award 2010
MCEECDYA - Ministerial Council for Education, Early Childhood Development and Youth Affairs
Melbourne Declaration - Melbourne Declaration on Educational Goals for Young Australians
Metal Industry Award 1998 - Metal, Engineering and Associated Industries Award, 1998
Metal Industry classification structure - the classification structure in what was originally the Metal Industry Award 1984 - Part I and subsequently became the Metal, Engineering and Associated Industries Award, 1998, and substantially retained in the Manufacturing and Associated Industries and Occupations Award 2010
NAPLAN - National Assessment Program – Literacy and Numeracy
National Law - Education and Care Services National Law Act 2010
National Regulations - Education and Care Services National Regulations
NCAC - National Childcare Accreditation Council
NCCD - National Consistent Collection of Data
NESA - NSW Education Standards Authority
NFTR - National Framework for Teacher Registration
NPAITQ - National Partnership Agreement on Improving Teacher Quality
NQF - National Quality Framework
NQS - National Quality Standard
NSW IRC - Industrial Relations Commission of New South Wales
NSW Teachers Award 2020 - Crown Employees (Teachers in Schools and Related Employees) Salaries and Conditions Award 2020
NSW School and TAFE Teachers Award - Crown Employees (Teachers in Schools and TAFE and Related Employees) Salaries and Conditions Award
NSW School Teachers decision - Crown Employees (Teachers in Schools and TAFE and Related Employees) Salaries and Conditions Award [2004] NSWIRComm 114, 133 IR 254
PAT - Progressive Achievement Testing
PAT-R - Progressive Achievement Test – Reading
PAT-M - Progressive Achievement Test – Mathematics
PE Award - Professional Employees Award 2010
Pharmacy Award decision - 4 yearly review of modern awards - Pharmacy Industry Award 2010 [2018] FWCFB 7621, 284 IR 121
PLP - Personalised Learning Plan
proposed ERO - Early Childhood Teachers in Long Day Care Centres and Preschools Equal Remuneration Order 2019 proposed by the IEU
QCT - Queensland College of Teachers
QIAS - Quality Improvement and Accreditation System
QIP - Quality Improvement Plan
QKFS – Queensland Kindergarten Funding Scheme
QKLG - Queensland Kindergarten Learning Guideline
SACSA Framework - South Australian Curriculum Standards and Accountability Framework
STEM - Science, Technology, Engineering and Mathematics
VECTEA - Victorian Early Childhood Teachers and Educators Agreement 2016
VET - Vocational Education and Training
VEYLDF - Victorian Early Years Learning and Development Framework
VIST Award - Victorian Independent Schools - Teachers - Award 1996
WWCC – Working With Children Check
2001 decision - Teachers (Non-Government Pre Schools) (State) Award [2001] NSWIRComm 335, 120 IR 3
2006 decision – Re Teachers (Non-Government Early Childhood Service Centres Other Than Pre Schools) (State) Award [2006] NSWIRComm 4
2009 decision - Teachers (Non Government Early Childhood Service Centres other than Preschools) (State) Award 2006 [2009] NSWIRComm 198, 191 IR 14
2015 decision - Re Equal Remuneration Decision 2015 [2015] FWCFB 8200, 256 IR 362
2018 decision – Application by United Voice and the Australian Education Union [2018] FWCFB 177, 274 IR 1A. INTRODUCTION AND BACKGROUND
A.1 The applications and the proceedings
[1] This decision concerns two applications made by the Independent Education Union of Australia (IEU). The first application is for an equal remuneration order pursuant to s 302 of the Fair Work Act 2009 (FW Act), to apply to early childhood teachers employed in long day care centres and preschools who are covered by the Educational Services (Teachers) Award 2020 (EST Award) (equal remuneration application). The second application is made pursuant to s 158 of the FW Act, and seeks to increase the minimum salaries for all teachers covered by the EST Award on work value grounds (work value application).
[2] The IEU’s equal remuneration application was filed on 8 October 2013. In procedural terms, it initially travelled together with an application made by United Voice and the Australian Education Union (AEU) for an equal remuneration order to apply to employees in long day care centres and preschools covered by the EST Award, the Children’s Services Award 2010 (CS Award) and the Educational Services (Schools) General Staff Award 2010 that had been filed 15 July 2013. Early in the course of the proceedings, it was determined in respect of both applications that the Commission should determine a number of legal and conceptual issues in a preliminary hearing prior to the parties presenting their respective evidentiary cases. These preliminary issues were determined in a Full Bench decision delivered on 30 November 2015[1] (2015 decision).
[3] One of the key matters determined in the 2015 decision, which we discuss in greater detail later in this decision, was that an application for an equal remuneration order must proceed on the basis of a comparison with the work of another employee or group of employees of the opposite gender. On 28 September 2016, United Voice and the AEU amended their application to provide for male comparators, namely employees covered by the C5 and C10 levels in the Manufacturing and Associated Industries and Occupations Award 2010 (Manufacturing Award). In connection with this amended application, these two unions then sought a preliminary hearing concerning whether their selected male comparators were suitable comparators for the purposes of s 302 of the FW Act. In a decision issued on 6 July 2017[2] (2017 decision), the Full Bench determined that it was prepared to conduct a preliminary hearing, but it reformulated the question to be determined on the basis that it was confined to a comparison between employees under relevant classifications in the CS Award and employees under the C5 and C10 levels in the Manufacturing Award. The Full Bench also indicated that any such preliminary hearing would have to proceed on the basis that, if the question was determined against the position of the applicant unions, the consequence would necessarily be the dismissal of their application. The unions acceded to this course, and a hearing in relation to the reformulated question occurred on 30 November 2017. In a decision issued on 6 February 2018[3] (2018 decision), the Full Bench decided against United Voice and the AEU on the question and dismissed their equal remuneration application.
[4] That left the IEU’s equal remuneration application to be determined. Directions were made for the filing of evidence and submissions in relation to this application, and 14 days were listed for the hearing of the application commencing on 26 July 2018.
[5] After the completion of the first and second days’ hearing, the Full Bench (as currently constituted) issued the following statement on 27 July 2018:[4]
“[1] The Full Bench considers, on the basis of the opening submissions received on 26 July 2018 as well as our very preliminary perusal of the evidentiary and other materials filed to date, that there may be an issue as to whether the minimum rates of pay applicable to early childhood teachers in the Educational Services (Teachers) Award 2010 are properly set having regard to the value of the work performed by such teachers.
[2] This proceeding is being conducted outside the current 4-yearly review of modern awards. We note that the Commission has the power under s 157(2) and (3) of the Fair Work Act 2009 to make a determination varying the minimum wages in a modern award for work value reasons on its own initiative as well as upon application.
[3] We invite the parties to give consideration to this potential issue in the future conduct of the proceeding.”
[6] On the next hearing day on 30 July 2018, the IEU sought and was granted an adjournment for it to file a further or amended application addressing the potential work value issue identified in the statement.[5] The IEU then filed its application pursuant to s 158 of the FW Act to vary the rates of pay in the EST Award on work value grounds on 17 August 2018. The hearing dates which had previously been set were vacated, and a new program was established for the filing of evidence and submissions concerning the IEU’s new application. Both the IEU’s applications were then the subject of hearings before us on 11-13 June, 17-20 June, 25-27 June, 1-4 July and 4-5 September 2019. We also conducted inspections at the following early childhood facilities on 1 August 2019:
· KU Phillip Park, 2-10 Yurong Parkway, Sydney, NSW; and
· Bambini of Lilyfield, 284 Balmain Road, Lilyfield NSW.
[7] Before we turn to our direct consideration of the IEU’s equal remuneration application and work value application, it is appropriate that we first set out the non-contentious factual background concerning the characteristics of the teaching sector, the regulatory framework governing the teaching profession, the early childhood education and care sector and the award coverage of the teaching sector. During the course of the hearing, we directed the parties to file an agreed statement of facts, and this was filed on 20 March 2020. We will draw upon this agreed statement of facts in describing the background to this matter immediately below, as well as in our findings of fact later in this decision.
A.2 Overview of the teaching profession
[8] As of August 2019, there were approximately 488,000 teachers employed in Australia, of which about ten percent were employed as early childhood teachers. The number of early childhood teachers grew by 48 percent between 2011 and 2016. The gender profile of the profession as at August 2019 may be broken down as follows:
· 99% of all early childhood teachers were female;
· 86% of all primary school teachers were female; and
· 58% of all secondary school teachers were female.
[9] School teachers were, as at 2018, employed across 9,477 primary and secondary schools in Australia (including schools for students with special needs). These schools may be broken up into the following categories:
· 70% were government schools;
· 18% were Catholic systemic schools; and
· 11% were other independent schools.
[10] In 2018, 3,893,834 students attended primary and secondary schools, in the following proportions:
· 66% attended government schools;
· 20% attended Catholic systemic schools; and
· 14% attended other independent schools.
[11] As at 30 June 2019, there were a total of 10,850 early childhood and care centres approved under the National Quality Framework (NQF) operating in Australia, of which 7,744 were long day care centres and 3,106 were preschools/kindergartens.
[12] The number of children attending approved child care services in Australia was 825,432, broken up into the following age groups:
0 years old 28,657 1 years old 129,548 2 years old 176,039 3 years old 197,119 4 years old 176,293 5 years old 117,776
[13] Customised data provided by the ABS (Australian Bureau of Statistics) sourced from the Survey of Employee Earnings and Hours, May 2016 shows that:
· Early childhood teachers’ average hourly cash earnings were $38.90 and average weekly cash earnings were $861.70;
· Primary school teachers’ average hourly cash earnings were $45.90 and average weekly cash earnings were $1,305.80; and
· Secondary school teachers’ average hourly cash earnings were $48.70 and average weekly cash earnings were $1,532.40.[6]
A.3 The regulatory framework for teachers in Australia
[14] Prior to 2011, teacher registration was primarily regulated at the State and Territory level. Queensland and South Australia introduced mandatory registration schemes for school teachers in the 1970s, and South Australia also introduced registration for early childhood teachers in preschools at the same time. Victoria followed in 2001 with registration of school teachers through the Victorian Institute of Teaching, and New South Wales, Western Australia and the Northern Territory commenced registration of school teachers in 2004. The Australian Capital Territory implemented registration of school teachers in 2011.
[15] A national approach to the regulation of the teaching profession had its origins in December 2007 when the Council of Australian Governments (COAG) agreed to a partnership between the Commonwealth and State and Territory Governments to pursue substantial reform in the areas of education, skills and early childhood development, to deliver significant improvements in human capital outcomes for all Australians. In 2008, the Commonwealth, State and Territory Education Ministers agreed upon the Melbourne Declaration on Educational Goals for Young Australians (Melbourne Declaration), which identified two overarching goals for the education system in Australia:
(1) The promotion of equity and excellence in Australian schooling.
(2)All young Australians become successful learners, confident and creative individuals, and active and informed citizens.
[16] The Melbourne Declaration stated that the Education Ministers, as signatories, sought “to achieve the highest possible level of collaboration with the government, Catholic and independent school sectors and across and between all levels of government”.
[17] In the same year, the COAG entered into the National Partnership Agreement on Improving Teacher Quality (NPAITQ). The stated objectives of the NPAITQ included:
· to contribute to achieving the objectives, outcomes and targets for schooling under the COAG participation and productivity agenda, the National Education Agreement, and Melbourne Declaration;
· to drive and reward systemic reforms to improve the quality of teaching and leadership in Australian schools;
· aiming to deliver system-wide reforms targeting critical points in the teacher “lifecycle” to attract, train, place, develop and retain quality teachers and leaders in our schools and classrooms; and
· a specific focus on professional development and support for principals.
[18] The NPAITQ stated that it would contribute to “outputs” which included:
(a) New professional standards to underpin national reforms;
(b) Recognition and reward for quality teaching;
(c) A framework to guide professional learning for principals, teachers and school leaders;
(d) National accreditation of pre-service teacher education courses;
(e) National consistency in teacher registration;
(f) National consistency in accreditation/certification of Accomplished and Leading Teachers;
(g) Improved mobility of the Australian teaching workforce;
(h) Joint engagement with higher education to provide improved pre-service teacher education; new pathways into teaching; and data collection to inform continuing reform action and workforce planning;
(i) Improved performance management in schools for teachers and school leaders; and
(j) Enhanced school-based teacher quality reforms.
[19] Also in 2008, the Commonwealth enacted the Australian Curriculum, Assessment and Reporting Authority Act 2008, which established the Australian Curriculum, Assessment and Reporting Authority (ACARA). The functions of the ACARA, as provided for in s 6 of the Act, are, relevantly, to:
(a) develop and administer a national school curriculum, including content of the curriculum and achievement standards, for school subjects specified in the Charter; and
(b) develop and administer national assessments; and
(c) collect, manage and analyse student assessment data and other data relating to schools and comparative school performance; and
(d) facilitate information sharing arrangements between Australian government bodies in relation to the collection, management and analysis of school data; and
(e) publish information relating to school education, including information relating to comparative school performance; and
(f) provide school curriculum resource services, educational research services and other related services; and
(g) provide information, resources, support and guidance to the teaching profession…
[20] In July 2009, the Ministerial Council for Education, Early Childhood Development and Youth Affairs (MCEECDYA) was established as a merger/re-alignment of pre-existing ministerial councils, with responsibility for overseeing progress towards the goals stated in the Melbourne Declaration. Its areas of responsibility include early childhood development, including early childhood education and care, and primary and secondary education. Pursuant to the NPAITQ and on behalf of the MCEECDYA, the Commonwealth then incorporated the Australian Institute for Teaching and School Leadership (AITSL), which came into being on 1 January 2010. The AITSL describes its “Strategic Direction” as follows:
“AITSL’s primary purpose is to provide national leadership for the Commonwealth, state and territory governments in promoting excellence in the profession of teaching and school leadership.
AITSL has a significant role in delivering the reforms agreed to through the Council of Australian Governments (COAG) National Partnership on Improving Teacher Quality, which targets critical points in the teacher lifecycle to attract, train, place, develop and retain quality teachers and leaders in schools and classrooms.
AITSL has responsibility for rigorous national professional standards and fostering and driving high quality professional development for teachers and school leaders by working collaboratively across jurisdictions and engaging with key professional bodies. Basing its work on the national professional standards for teaching, AITSL will guide reform in the areas of teacher registration, accreditation of pre-service teacher education, accreditation of teachers at the graduate, proficient, highly accomplished and lead teacher levels, and will deliver prestigious national awards for teachers and school leaders.”
[21] The AITSL developed the National Framework for Teacher Registration (NFTR), which was agreed to by the MCEECDYA in October 2011. The key elements of the NFTR are, for relevant purposes:
· in every State or Territory, only registered teachers may be employed to teach in schools;
· each State and Territory has established an authority or agency with responsibility for the registration (licensing) of teachers;
· to achieve full registration, evidence of performance is required at the Proficient stage of the Australian Professional Standards for Teachers (APST);
· an initial period of provisional registration is allowed during which a new teacher has a form of “licence” that allows them to be employed as a teacher and undertake workplace learning and development that will equip them to meet requirements for becoming fully registered;
· the maximum period for meeting the requirements for full registration is five years, with provision for extension on a case-by-case basis;
· regulatory authorities will specify a minimum time period (of no less than 80 days of teaching and not exceeding the equivalent of one year full-time teaching) in a school setting in which the teacher demonstrates they have met the APST to the satisfaction of the regulator before an applicant may apply for full registration;
· after a fixed period of registration, teachers are required to demonstrate their ongoing proficiency and suitability to teach in order to renew their registration;
· the minimum requirements for the renewal or continuation of a teacher’s registration are that: suitability has been maintained on the basis of a national criminal history records check that is no older than five years; recency of professional practice requirements is established on the basis of 100 days of professional practice in the last five years; proficiency against the APST has been maintained; and professional learning is demonstrated on the basis of at least 100 hours of professional development activities in the last five years as referenced in the APST;
· there will be provision for a recognised authority to impose sanctions or withdraw a teachers’ registration if they fail to meet the required standards of personal and professional behaviour or professional performance;
· there must be a requirement for an applicant for registration to be suitable to both work with children and be a teacher, based upon an assessment of character and criminal history, and regulatory authorities may take into account information from other registration bodies and overseas employers, analysis of previous misconduct based on the level, nature, frequency, recency and seriousness of the offences, and any other information relevant to an assessment of suitability for registration as a teacher such as fitness to teach;
· there will be a minimum qualification, including a professional qualification, for registration, consisting of at least four years of higher education study (full-time or equivalent) study, including an initial teacher education program accredited in Australia, leading to the achievement of a recognised qualification, or an overseas qualification assessed as equivalent;
· registration will require achievement of a level of professional proficiency in spoken and written English, with defined assessment scores used to measure this; and
· a person registered to practise as a teacher in one jurisdiction is entitled to apply for registration in another jurisdiction based on that registration.
[22] The requirements of the NFTR have been implemented in respect of school teachers in all States and Territories (with a three year registration renewal requirement in South Australia, annual registration in Victoria and the ACT, and five-year registration in the other States and Territories). The NFTR did not directly address registration for early childhood teachers. Teacher registration has been extended to early childhood teachers to the following extent:
· in South Australia, all early childhood teachers must be registered regardless of setting;
· in New South Wales, Western Australia and Victoria, all early childhood teachers in NQF approved services must be registered; and
· in Queensland, the ACT, the Northern Territory and Tasmania, early childhood teachers in school-attached services must be registered, with voluntary registration available in out-of-school settings including long day care in Queensland and the Northern Territory.
[23] In all states except Victoria, early childhood teachers are registered in a single register together with school teachers. In Victoria, they are in a separate division of the register.
[24] In its September 2018 publication One Teaching Profession: Teacher Registration in Australia, the AITSL recommended that early childhood teachers in all employment settings be required to be registered by teaching regulatory authorities under a consistent national approach. The remaining jurisdictions where this is not the case are moving to implement this recommendation.
[25] In conjunction with the NFTR, the AITSL developed the APST. The APST were endorsed by MCEECDYA in December 2010. The stated purpose of the APST is as follows (footnotes omitted):
“The Standards are a public statement of what constitutes teacher quality. They define the work of teachers and make explicit the elements of high-quality, effective teaching in 21st century schools that will improve educational outcomes for students. The Standards do this by providing a framework which makes clear the knowledge, practice and professional engagement required across teachers’ careers.
They present a common understanding and language for discourse between teachers, teacher educators, teacher organisations, professional associations and the public.
Teacher standards also inform the development of professional learning goals, provide a framework by which teachers can judge the success of their learning and assist self-reflection and self-assessment.
Teachers can use the Standards to recognise their current and developing capabilities, professional aspirations and achievements.
The Standards contribute to the professionalisation of teaching and raise the status of the profession. They could also be used as the basis for a professional accountability model, helping to ensure that teachers can demonstrate appropriate levels of professional knowledge, professional practice and professional engagement.
The Standards are organised into four career stages and guide the preparation, support and development of teachers. The stages reflect the continuum of a teacher’s developing professional expertise from undergraduate preparation through to being an exemplary classroom practitioner and a leader in the profession.”
[26] The APST consist of seven interconnected standards stipulating what teachers should know and should be able to do, which are grouped into three domains of teaching as follows:
Professional Knowledge
Standard 1: Know students and how they learn
Standard 2: Know the content and how to teach it
Professional Practice
Standard 3: Plan for and implement effective teaching and learning
Standard 4: Create and maintain supportive and safe learning environments
Standard 5: Assess, provide feedback and report on student learning
Professional Engagement
Standard 6: Engage in professional learning
Standard 7: Engage professionally with colleagues, parents/carers and the community
[27] The three domains of knowledge are explicated in the APST as follows:
“Professional Knowledge
Teachers draw on a body of professional knowledge and research to respond to the needs of their students within their educational contexts.
Teachers know their students well, including their diverse linguistic, cultural and religious backgrounds. They know how the experiences that students bring to their classroom affect their continued learning. They know how to structure their lessons to meet the physical, social and intellectual development and characteristics of their students.
Teachers know the content of their subjects and curriculum. They know and understand the fundamental concepts, structure and enquiry processes relevant to programs they teach.
Teachers understand what constitutes effective, developmentally appropriate strategies in their learning and teaching programs and use this knowledge to make the content meaningful to students.
Through their teaching practice, teachers develop students’ literacy and numeracy within their subject areas. They are also able to use Information and Communication Technology to contextualise and expand their students’ modes and breadth of learning.
Professional Practice
Teachers are able to make learning engaging and valued. They are able to create and maintain safe, inclusive and challenging learning environments and implement fair and equitable behaviour management plans. They use sophisticated communication techniques.
Teachers have a repertoire of effective teaching strategies and use them to implement well designed teaching programs and lessons. They regularly evaluate all aspects of their teaching practice to ensure they are meeting the learning needs of their students. They interpret and use student assessment data to diagnose barriers to learning and to challenge students to improve their performance.
They operate effectively at all stages of the teaching and learning cycle, including planning for learning and assessment, developing learning programs, teaching, assessing, providing feedback on student learning and reporting to parents/ carers.
Professional Engagement
Teachers model effective learning. They identify their own learning needs and analyse, evaluate and expand their professional learning both collegially and individually.
Teachers demonstrate respect and professionalism in all their interactions with students, colleagues, parents/carers and the community. They are sensitive to the needs of parents/carers and can communicate effectively with them about their children’s learning.
Teachers value opportunities to engage with their school communities within and beyond the classroom to enrich the educational context for students. They understand the links between school, home and community in the social and intellectual development of their students.”
[28] The APST provide for four career stages of professional capability which:
“…provide benchmarks to recognise the professional growth of teachers throughout their careers. The descriptors across the four career stages represent increasing levels of knowledge, practice and professional engagement for teachers. Progression through the stages describes a growing understanding, applied with increasing sophistication across a broader and more complex range of situations.”
[29] The four professional career stages are defined in the APST as follows:
“Graduate teachers
Graduate teachers have completed a qualification that meets the requirements of a nationally accredited program of initial teacher education. The award of this qualification means that they have met the Graduate Standards.
On successful completion of their initial teacher education, graduate teachers possess the requisite knowledge and skills to plan for and manage learning programs for students. They demonstrate knowledge and understanding of the implications for learning of students’ physical, cultural, social, linguistic and intellectual characteristics.
They understand principles of inclusion and strategies for differentiating teaching to meet the specific learning needs of students across the full range of abilities.
Graduate teachers have an understanding of their subject/s, curriculum content and teaching strategies. They are able to design lessons that meet the requirements of curriculum, assessment and reporting. They demonstrate the capacity to interpret student assessment data to evaluate student learning and modify teaching practice. They know how to select and apply timely and appropriate types of feedback to improve students’ learning.
Graduate teachers demonstrate knowledge of practical strategies to create rapport with students and manage student behaviour. They know how to support students’ wellbeing and safety, working within school and system curriculum and legislative requirements.
They understand the importance of working ethically, collaborating with colleagues, external professional and community representatives, and contributing to the life of the school. Graduate teachers understand strategies for working effectively, sensitively and confidentially with parents/carers and recognise their role in their children’s education.
Proficient teachers
Proficient teachers meet the requirements for full registration through demonstrating achievement of the seven Standards at this level.
These teachers create effective teaching and learning experiences for their students. They know the unique backgrounds of their students and adjust their teaching to meet their individual needs and diverse cultural, social and linguistic characteristics.
They develop safe, positive and productive learning environments where all students are encouraged to participate.
They design and implement engaging teaching programs that meet curriculum, assessment and reporting requirements. They use feedback and assessment to analyse and support their students’ knowledge and understanding. Proficient teachers use a range of sources, including student results, to evaluate their teaching and to adjust their programs to better meet student needs.
Proficient teachers are active participants in their profession and with advice from colleagues, identify, plan and evaluate their own professional learning needs.
Proficient teachers are team members. They work collaboratively with colleagues; they seek out and are responsive to advice about educational issues affecting their teaching practice. They communicate effectively with their students, colleagues, parents/carers and community members. They behave professionally and ethically in all forums.
Highly Accomplished teachers
Highly Accomplished teachers are recognised as highly effective, skilled classroom practitioners and routinely work independently and collaboratively to improve their own practice and the practice of colleagues. They are knowledgeable and active members of the school.
Highly Accomplished teachers contribute to their colleagues’ learning. They may also take on roles that guide, advise or lead others. They regularly initiate and engage in discussions about effective teaching to improve the educational outcomes for their students.
They maximise learning opportunities for their students by understanding their backgrounds and individual characteristics and the impact of those factors on their learning. They provide colleagues, including pre-service teachers, with support and strategies to create positive and productive learning environments.
Highly Accomplished teachers have in-depth knowledge of subjects and curriculum content within their sphere of responsibility. They model sound teaching practices in their teaching areas. They work with colleagues to plan, evaluate and modify teaching programs to improve student learning.
They keep abreast of the latest developments in their specialist content area or across a range of content areas for generalist teachers.
Highly Accomplished teachers are skilled in analysing student assessment data and use it to improve teaching and learning.
They are active in establishing an environment which maximises professional learning and practice opportunities for colleagues. They monitor their own professional learning needs and align them to the learning needs of students.
They behave ethically at all times. Their interpersonal and presentation skills are highly developed. They communicate effectively and respectfully with students, colleagues, parents/ carers and community members.
Lead teachers
Lead teachers are recognised and respected by colleagues, parents/carers and the community as exemplary teachers. They have demonstrated consistent and innovative teaching practice over time. Inside and outside the school they initiate and lead activities that focus on improving educational opportunities for all students. They establish inclusive learning environments that meet the needs of students from different linguistic, cultural, religious and socioeconomic backgrounds. They seek to improve their own practice and to share their experience with colleagues.
They are skilled in mentoring teachers and pre-service teachers, using activities that develop knowledge, practice and professional engagement in others. They promote creative, innovative thinking among colleagues. They apply skills and in-depth knowledge and understanding to deliver effective lessons and learning opportunities and share this information with colleagues and pre-service teachers. They describe the relationship between highly effective teaching and learning in ways that inspire colleagues to improve their own professional practice.
They lead processes to improve student performance by evaluating and revising programs, analysing student assessment data and taking account of feedback from parents/carers. This is combined with a synthesis of current research on effective teaching and learning.
They represent the school and the teaching profession in the community. They are professional, ethical and respected individuals inside and outside the school.”
[30] The APST were written for school teachers and do not directly address the position of early childhood teachers. In Victoria and Western Australia, amended versions of the APST have been developed to be inclusive of early childhood teaching practices and settings, and in New South Wales an evidence guide has been produced to support early childhood teachers to confidently interpret the Proficient Teacher standards and apply them to their context. In One Teaching Profession: Teacher Registration in Australia, the AITSL recommended that the APST be amended to ensure their relevance and applicability to early childhood teachers.
A.4 National regulation of the early childhood and care sector
[31] Regulation of the early education and care sector was previously divided between pre-schools and childcare (principally, in respect of children aged 0-5, long day care). Pre-schools were previously the regulatory and funding domain of State and Territory Governments. The Commonwealth became responsible for the quality accreditation of child care as a function of its provision of the Child Care Benefit. Such quality accreditation was carried out by the National Childcare Accreditation Council (NCAC). The NCAC administered, in respect of participating long day care centres, the Quality Improvement and Accreditation System (QIAS). The QIAS was introduced in 1994. The QIAS outlined 33 principles of quality care incorporated in seven quality areas, namely: Staff relationships with children and peers; Partnerships with families; Programming and evaluation; Children’s experiences and learning; Protective care and safety; Health, nutrition and wellbeing; and Managing to support quality. In addition, State and Territory Governments generally had in place licensing schemes for child care services.
[32] In March 2008, the COAG issued a communique in which it endorsed a comprehensive set of aspirations, outcomes, progress measures and future policy directions in the area of early childhood. The agreed aspiration was that children are born healthy and have access, throughout early childhood, to the support, care and education that will equip them for life and learning, delivered in a way that actively engages parents and meets their workforce participation needs. In the 2008-9 Budget, the Commonwealth Government set out a comprehensive plan to make the early childhood years a national priority and, to this end, to reform early childhood education and care. Relevant elements of this plan were:
· to improve access to quality early childhood education and care through universal access to preschool for all children in the year before formal schooling, for 15 hours per week, 40 weeks per year, delivered by a university-qualified early childhood teacher;
· to improve the quality of early childhood education through strong national quality standards, a quality rating system, support for education and training of the early childhood workforce, and the development of an Early Years Learning Framework.
[33] In August 2008, the Early Childhood Development Sub-group of the COAG Productivity Agenda Working Group published a discussion paper, A national quality framework for early child education and care. This paper summarised the then Government’s agenda for early childhood education and explained the Commonwealth’s role as follows (footnotes omitted):
“Improving health and development outcomes for young children is the combined responsibility of parents, carers, and government on behalf of the community. While parents have primary responsibility for raising children, carers also play a significant role. The role of government in formal early childhood education and care is to provide a comprehensive service system, regardless of setting, that responds effectively to the health and developmental needs of children in the years before formal schooling. The way parents, carers and government carry out this responsibility has an impact on children’s early learning and development, as well as later success in school and the workforce.
The early childhood education and care service system in Australia encompasses two sectors - child care and preschool - that have largely been planned, funded and delivered separately. Research literature and practice in other countries demonstrate that the delineation between child care and preschool rests in part on a false distinction between ‘education’ and ‘care’. Children are ready and willing to learn wherever they are, and start learning from birth.
The boundaries between child care and preschool are blurring. In some jurisdictions, long day care can include a preschool program. With evidence mounting about the value of early childhood education, traditional child care settings need to refocus on learning and development. In addition, integrated models of care, such as wraparound care and co-located services, are emerging to meet the needs of families. As the two sectors come together to service changing community need, families need to be able to expect a consistently high level of quality across all formal early childhood education and care settings.”
[34] The discussion paper stated that the current regulatory arrangements were fragmented and complex because of the shared responsibility for the regulation of the early childhood and care sector between the Commonwealth and State and Territory Governments, the different regulatory arrangements for different services within the sector, overlap between State licensing schemes and Commonwealth accreditation, and gaps and inconsistencies in the regulatory schemes in the different jurisdictions. The paper stated that the COAG reform agenda could be achieved by the development and implementation of a National Quality Framework which would:
· enhance learning and development outcomes for children in different care settings, with an initial focus on early learning in the years prior to formal schooling; and
· build a high-quality, integrated national quality system, including accreditation, for early learning and care that took account of setting, diversity of service delivery and the age and stage of development of children.
[35] The overall policy rationale for this was described in the following way (footnotes omitted):
“…early childhood education and care improves outcomes for children, particularly disadvantaged children, as well as benefiting society more broadly. However, the evidence also shows that the quality of these early childhood education and care experiences is of key importance. Research shows that a quality early childhood environment provides for the basic needs of children, including health and safety, positive relationships and opportunities for stimulation and learning from experience. Research also shows that prime structural indicators of the quality of formal care, sometimes referred to as the ‘iron triangle’, are staff qualifications, child-to-staff ratios and group size. As noted earlier, the OECD highlights these factors, as well as educational concept and practice, interaction and process quality, child outcome quality or performance standards, and standards pertaining to parent/community outreach and involvement.”
[36] The paper identified that there were significant demand, supply and retention issues for early childhood education and care professions, and pointed to the following causal factors in this respect:
· demand for early childhood teachers was strong in most jurisdictions and would only get stronger with the implementation of arrangements to support universal access to early childhood education programs;
· the level of remuneration;
· child care workers had been in short supply across the nation for many years;
· job turnover was high, with over one in five child care workers leaving the occupation every year;
· although there had been growth in enrolments in Certificate III child care courses, enrolments in Diploma child care courses have fallen since 2002; and
· the early childhood education and care workforce comprised both qualified and unqualified staff, with staff shortages more significant among qualified staff.
[37] The discussion paper proposed that, in addition to the NQF, a National Early Years Learning Framework would be established. The purpose of this was described as follows (footnotes omitted):
“A National Early Years Learning Framework is an early childhood curriculum framework which will guide early childhood educators in developing quality early childhood programs in a range of early childhood education and care settings. It will enhance children’s learning from birth to five years of age, including in early childhood education programs in the year before formal schooling, as well as their transition to school.
The framework will improve the integration of [early childhood education and care] services through a consistent focus on individual and group learning and development for children in all [early childhood education and care] settings. It will also enhance the professional profile and approach of the early years workforce through a common understanding of child development and learning, and consistent practice and language. It will outline the desired outcomes for children in [early childhood education and care] settings across the birth to five age range, including the year before formal schooling, and enhance their transitions to school.
It will inform parents, families and all Australians about young children’s learning. [Early childhood education and care] services will draw on the framework and associated resources to assist in planning and describing children’s learning to parents, families, communities and government.
The framework will underpin the National Quality Standards and the COAG commitment to universal access to quality early learning in the year before formal schooling.”
[38] The role of university-qualified early childhood teachers in early childhood education was identified as being of key importance:
“The role of early childhood educators is also a critical element of quality. Because they are skilled in early childhood learning and development, early childhood teachers are able to continually monitor the progress of each child and provide learning and development experiences that maximise their potential. They have an important role in providing feedback to parents about their child, and in helping the child make the transition to formal schooling through the provision of information to parents.”
[39] Finally, the discussion paper identified the underlying public policy rationale for investment in early childhood education as follows (footnotes omitted):
“There is increasing recognition of the social and economic benefits of investing in early childhood. The rates of return are much higher from early investments than those made later in life. It has been argued that a nationwide commitment to high-quality early childhood development would have a substantial long-term payoff. The early years of children’s learning and development needs to be seen as important in their own right as well as being a foundation for life outcomes. During the early years children inquire, explore and discover much about the world around them, establishing attitudes to learning that remain with them throughout their lives.
Cost-benefit studies show that prevention and early intervention strategies are more effective than treatment programs with clear, flow-on benefits for individuals, families and the broader community. On the basis of an extensive analysis of the evidence, research concludes that investing in quality early childhood programs, particularly for disadvantaged children, has a high economic return.”
[40] The Early Years Learning Framework (EYLF) was delivered in 2009. This is discussed further in the next section of the introduction to this decision.
[41] The NQF was introduced in 2012 as the first national regulatory system to apply to all early childhood education and care services, including preschools and kindergartens. It was implemented by way of a model law, the Education and Care Services National Law Act 2010 (National Law), which was enacted by State and Territory legislatures, and by the Education and Care Services National Regulations (National Regulations) which were made pursuant to State and Territory enactments (with some modification in Victoria). Its key features are to:
· provide for a regulatory authority in each state and territory which is responsible for the approval, monitoring and quality assessment of services in each state and territory;
· provide for a national body, the Australian Children’s Education and Care Quality Authority (ACECQA), which replaced the NCAC and guides the implementation of the NQF and works with regulatory authorities;
· require services to comply with the National Quality Standard (NQS);
· establish an assessment and quality rating process linked to accreditation;
· mandate staff to children ratios, that is, the minimum number of staff that must be directly working with children based on how many children are present at any given time;
· prescribe minimum qualification requirements for staff counted towards the above ratios, with a general proposition that 50% are required to have or be actively working towards at least a diploma and the remainder are required to have or be actively working towards at least a Certificate III;
· mandate teacher to children ratios, that is, the minimum numbers of qualified early childhood teachers that must be accessible to or in attendance at services based on how many children are present at any given time; and
· mandate that all services have a Quality Improvement Plan (QIP) in place.
[42] As earlier discussed, the NQF established by the National Law and the National Regulations does not require early childhood teachers to be registered; however as mentioned above, registration is a requirement under some state and territory legislation. To work as an early childhood teacher, a person must hold or be “actively working towards” an approved early childhood teaching qualification, a formerly approved qualification that was commenced prior to the introduction of the NQF or an equivalent qualification as determined by ACECQA. The early childhood qualifications approved by ACECQA are four-year bachelor degrees or post-graduate qualifications.
[43] The NQS, which was established by the National Regulations and replaced the QIAS, acts as a benchmark for early childhood education and care services. There are seven broad standards relating to the following “quality areas”:
(1)Educational program and practice: The educational program and practice of educators is stimulating, enhances and extends children’s learning and development. In services for children over preschool age the program nurtures the development of life skills and complements children’s experiences, opportunities and relationships at school, at home and in the community.
(2)Children’s health and safety: Every child’s health and wellbeing is safeguarded and promoted.
(3)Physical environment: The physical environment is safe, suitable and provides a rich and diverse range of experiences which promote children’s learning and development.
(4)Staffing arrangements: Staffing arrangements create a safe and predictable environment for children and support warm, respectful relationships. Qualified and experienced educators and co-ordinators encourage children’s active engagement in the learning program. Positive relationships among educators, co-ordinators and staff members contribute to an environment where children feel emotionally safe, secure and happy.
(5)Relationships with children: Relationships that are responsive, respectful and promote children’s sense of security and belonging free them to explore the environment and engage in play and learning.
(6)Collaborative partnerships with families and communities: Collaborative relationships with families are fundamental to achieve quality outcomes for children. Community partnerships that focus on active communication, consultation and collaboration also contribute to children’s learning and wellbeing.
(7)Governance and leadership: Effective leadership contributes to sustained quality relationships and environments that facilitate children’s learning and development. Well documented policies and practices that are developed and regularly evaluated in partnership with educators, co-ordinators, staff members and families contribute to the ethical management of the service. There is a focus on continuous improvement.
[44] Within each quality area, there are more specific standards and elements of those standards. In respect of the first quality area, Educational program and practice, these are:
“Standard 1.1--Program
The educational program enhances each child’s learning and development.
Element 1.1.1 - Approved learning framework
Curriculum decision-making contributes to each child’s learning and development outcomes in relation to that child’s identity, connection with community, wellbeing, confidence as learners and effectiveness as communicators.
Element 1.1.2 - Child-centred
Each child’s current knowledge, strengths, ideas, culture, abilities and interests are the foundation of the program.
Element 1.1.3 - Program learning opportunities
All aspects of the program, including routines, are organised in ways that maximise opportunities for each child’s learning.
Standard 1.2--Practice
Educators facilitate and extend each child’s learning and development.
Element 1.2.1 - Intentional teaching
Educators are deliberate, purposeful, and thoughtful in their decisions and actions.
Element 1.2.2 - Responsive teaching and scaffolding
Educators respond to children’s ideas and play and extend children’s learning through open-ended questions, interactions and feedback.
Element 1.2.3 - Child-directed learning
Each child’s agency is promoted, enabling them to make choices and decisions and influence events and their world.
Standard 1.3--Assessment and planning
Educators and co-ordinators take a planned and reflective approach to implementing the program for each child.
Element 1.3.1 - Assessment and planning cycle
Each child’s learning and development is assessed or evaluated as part of an ongoing cycle of observation, analysing, learning, documentation, planning, implementation and reflection.
Element 1.3.2 - Critical reflection
Critical reflection on children’s learning and development, both as individuals and in groups, drives program planning and implementation.
Element 1.3.3 - Information for families
Families are informed about the program and their child’s progress.”
[45] The ACECQA has published a detailed guide to the NQS which explains the purpose of each standard and element and how they are to be assessed, and sets out questions for critical reflection in respect of each standard.
[46] Services are assessed and rated against the NQS by the relevant state or territory regulatory authority. There are four assessment grades:
· Exceeding NQS
· Meeting NQS
· Working towards NQS
· Significant Improvement Required.
[47] In addition, a ranking of “Excellent” may be awarded by the ACECQA on application by a service which has already been rated as “Exceeding” in all seven quality areas. The ratings are publicly available.
[48] Since 2014, the National Law and National Regulations have mandated teacher/children ratios in early childhood centres. Initially, the following ratios were mandated:
· services providing care to less than 25 children on any given day – an early childhood teacher must be in attendance for at least 20% of operating hours; and
· services providing care to 25 or more children on any given day – an early childhood teacher must be in attendance for six hours on that day (where a service operates for 50 or more hours per week), or 60 percent of operating hours (where a service operates for less than 50 hours).
[49] In 2020, additional teacher/children ratios were mandated in early childhood centres:
· services providing care to between 60 and 80 children on any given day – a second early childhood teacher must be in attendance for at least three hours on that day (where a service operates for 50 or more hours per week), or 30% of operating hours (where a service operates for less than 50 hours); and
· services providing care to more than 80 children on any given day - a second early childhood teacher must be in attendance for at least six hours on that day (where a service operates for 50 or more hours per week), or 60% of operating hours (where a service operates for less than 50 hours).
[50] Several jurisdictions mandate standards higher than those in the National Law and National Regulations and the NQF with respect to early childhood teacher qualification ratios. For example, in New South Wales a second teacher must be present where a service cares for more than 40 children, with an additional teacher for every 20 children thereafter up to a maximum of four teachers. The National Regulations also specify educator to child ratios as follows:
(a) for children from birth to 24 months of age -1 educator to 4 children;
(b) for children over 24 months and less than 36 months of age - 1 educator to 5 children;
(c) for children aged 36 months of age or over (not including children over preschool age) - 1 educator to 11 children;
(d) for children over preschool age - 1 educator to 15 children.
[51] For the purpose of the above ratios, the National Regulations provide that at least 50 percent of the educators must have or be actively working towards an approved diploma level education and care qualification, and all other educators must have or be actively working towards at least an approved certificate III level education and care qualification.
[52] The National Regulations require that the “approved provider” of an early childhood education and care service must designate in writing a “suitably qualified and experienced educator, co-ordinator or other individual” to be the “educational leader” of the service who has the responsibility to “lead the development and implementation of educational programs in the service”. The National Law provides that the “approved provider” must be the operator of the service and have responsibility for the management of the staff. Services must also have at least one “nominated supervisor” for the service who has the responsibility to ensure that all children being educated and cared for by the service are adequately supervised at all times that the children are in the care of that service. They must also nominate staff members to be a “person in day-to-day charge” of the service. A Nominated Supervisor and a person in day-to-day charge must, among other things, have completed child protection training. The Approved Provider, a Nominated Supervisor or a person in day-to-day charge must be present at all times that the service is in operation.
A.5 Development of national curricula
[53] Prior to 2009, school curricula and, to the extent they existed at all, curricula for early childhood education, were a matter for State and Territory governments. As earlier mentioned, following the publication in August 2008 of A national quality framework for early child education and care, the EYLF foreshadowed in that discussion paper was delivered the following year.
[54] The EYLF describes its core function in the following way:
“The Framework forms the foundation for ensuring that children in all early childhood education and care settings experience quality teaching and learning. It has a specific emphasis on play-based learning and recognises the importance of communication and language (including early literacy and numeracy) and social and emotional development. The Framework has been designed for use by early childhood educators working in partnership with families, children’s first and most influential educators.”
[55] The introduction to the EYLF states that its main elements and objects are as follows:
“The Framework conveys the highest expectations for all children’s learning from birth to five years and through the transitions to school. It communicates these expectations through the following five Learning Outcomes:
· Children have a strong sense of identity
· Children are connected with and contribute to their world
· Children have a strong sense of wellbeing
· Children are confident and involved learners
· Children are effective communicators.
The Framework provides broad direction for early childhood educators in early childhood settings to facilitate children’s learning.
It guides educators in their curriculum decision-making and assists in planning, implementing and evaluating quality in early childhood settings. It also underpins the implementation of more specific curriculum relevant to each local community and early childhood setting.
The Framework is designed to inspire conversations, improve communication and provide a common language about young children’s learning among children themselves, their families, the broader community, early childhood educators and other professionals.”
[56] The elements of the EYLF are further described as follows:
“The Framework puts children’s learning at the core and comprises three inter-related elements: Principles, Practice and Learning Outcomes… All three elements are fundamental to early childhood pedagogy and curriculum decision-making.
Curriculum encompasses all the interactions, experiences, routines and events, planned and unplanned, that occur in an environment designed to foster children’s learning and development. The emphasis in the Framework is on the planned or intentional aspects of the curriculum.
Children are receptive to a wide range of experiences. What is included or excluded from the curriculum affects how children learn, develop and understand the world.
The Framework supports a model of curriculum decision-making as an ongoing cycle. This involves educators drawing on their professional knowledge, including their in-depth knowledge of each child.
Working in partnership with families, educators use the Learning Outcomes to guide their planning for children’s learning. In order to engage children actively in learning, educators identify children’s strengths and interests, choose appropriate teaching strategies and design the learning environment.
Educators carefully assess learning to inform further planning.”
[57] The EYLF emphasises the importance of the role of professional expertise, judgment and pedagogy in the delivery of children’s education. In this respect it relevantly states:
“Educators’ professional judgements are central to their active role in facilitating children’s learning. In making professional judgements, they weave together their:
· professional knowledge and skills
· knowledge of children, families and communities
· awareness of how their beliefs and values impact on children’s learning
· personal styles and past experiences.
They also draw on their creativity, intuition and imagination to help them improvise and adjust their practice to suit the time, place and context of learning.
Different theories about early childhood inform approaches to children’s learning and development. Early childhood educators draw upon a range of perspectives in their work which may include:
· developmental theories that focus on describing and understanding the processes of change in children’s learning and development over time socio-cultural theories that emphasise the central role that families and cultural groups play in children’s learning and the importance of respectful relationships and provide insight into social and cultural contexts of learning and development
· socio-behaviourist theories that focus on the role of experiences in shaping children’s behaviour
· critical theories that invite early childhood educators to challenge assumptions about curriculum, and consider how their decisions may affect children differently
· post-structuralist theories that offer insights into issues of power, equity and social justice in early childhood settings.”
[58] The EYLF states that five principles underpin practice that is focused on assisting all children to make progress in relation to the learning outcomes:
(1) Secure, respectful and reciprocal relationships with children.
(2) Partnerships with families and support professionals.
(3) High expectations and a commitment to equity.
(4) Respect for diversity.
(5)Ongoing learning and reflective practice in order to build professional knowledge and develop learning communities.
[59] In terms of practice, the EYLF states:
“The principles of early childhood pedagogy underpin practice. Educators draw on a rich repertoire of pedagogical practices to promote children’s learning by:
· adopting holistic approaches
· being responsive to children
· planning and implementing learning through play
· intentional teaching
· creating physical and social learning environments that have a positive impact on children’s learning
· valuing the cultural and social contexts of children and their families
· providing for continuity in experiences and enabling children to have successful transition
· assessing and monitoring children’s learning to inform provision and to support children in achieving learning outcomes.”
[60] The practice of “Intentional teaching” is explained in the following way:
“Intentional teaching is deliberate, purposeful and thoughtful.
Educators who engage in intentional teaching recognise that learning occurs in social contexts and that interactions and conversations are vitally important for learning. They actively promote children’s learning through worthwhile and challenging experiences and interactions that foster high-level thinking skills. They use strategies such as modelling and demonstrating, open questioning, speculating, explaining, engaging in shared thinking and problem solving to extend children’s thinking and learning. Educators move flexibly in and out of different roles and draw on different strategies as the context changes. They plan opportunities for intentional teaching and knowledge-building. They document and monitor children’s learning.”
[61] The practice of “assessment” is also explained in detail in the EYLF:
“Assessment for children’s learning refers to the process of gathering and analysing information as evidence about what children know, can do and understand. It is part of an ongoing cycle that includes planning, documenting and evaluating children’s learning.
….
Educators use a variety of strategies to collect, document, organise, synthesise and interpret the information that they gather to assess children’s learning. They search for appropriate ways to collect rich and meaningful information that depicts children’s learning in context, describes their progress and identifies their strengths, skills and understandings. More recent approaches to assessment also examine the learning strategies that children use and reflect ways in which learning is co-constructed through interactions between the educator and each child. Used effectively, these approaches to assessment become powerful ways to make the process of learning visible to children and their families, educators and other professionals.”
[62] In relation to each of the five outcomes earlier identified, the EYLF further explicates the outcome and its elements and sets out when children evidence the outcome and the means by which educators may promote it.
[63] Since 2012, early childhood education and care services have been required under the National Law and the National Regulations to provide an educational program based on an approved learning framework. The only frameworks for early childhood education approved by ACECQA are the EYLF and, for Victoria, the Victorian Early Years Learning and Development Framework (VEYLDF). The VEYLDF is substantially based on the EYLF.
[64] In primary and secondary schools, the Australian Curriculum was implemented in 2011 and was the first national school curriculum in Australian history. The Australian Curriculum is aligned with the EYLF and builds on EYLF learning outcomes. The Australian Curriculum’s content specifies the knowledge, understanding and skills that young people are expected to learn across the years of schooling Foundation/Kindergarten to Year 10 and what teachers are to teach, and the achievement standards describe what students are typically able to understand and able to do. The Australian Curriculum is designed to ensure students develop the knowledge and understanding on which the major disciplines are based and emphasises seven general capabilities, being literacy, numeracy, information communication technology competence, critical and creative thinking, ethical behaviour, personal and social competence and intercultural understanding.
A.6 Educational Services (Teachers) Award
[65] Clause 4.1 of the EST Award provides that it covers employers throughout Australia in the “school education industry” and the “children’s services and early childhood education industry” and their employees, to the exclusion of any other modern award. The industries referred to are defined in clause 4.2 as follows:
4.2 For the purposes of this award:
(a)school education industry means the provision of education, including preschool or early childhood education, in a school registered and/or accredited under the relevant authority in each State or Territory or in an early childhood service operated by a school and includes all operations of the school. Where the provision of school education is directed, managed and/or controlled by a central or regional administration of a system of schools it may also include the persons involved in providing such services to schools; and
(b) children’s services and early childhood education industry means the industry of long day care, occasional care (including those occasional care services not licensed), nurseries, childcare centres, day care facilities, family based childcare, out-of-school hours care, vacation care, adjunct care, in-home care, kindergartens and preschools, mobile centres and early childhood intervention programs.
[66] The coverage of the EST Award is subject to certain exclusions specified in clause 4.4, which relevantly include: teacher/integration aids; helpers; classroom assistants; director/supervisors in or in connection with childcare, preschool, long day care centres, childminding centres or outside of school hours care services (other than university qualified early childhood teachers);[7] and principals and deputy principals.[8]
[67] Clause 14 of the EST Award deals with the classification structure in the award. There are 12 classification levels. There are no classification definitions as such since the classifications are based on annual progression. Clause 14.2(a) provides that “On appointment, an employee will be classified and placed on the appropriate level on the wage scale in clause 17—Minimum rates, according to their qualifications and teaching experience”. In this respect, clause 14.4 provides:
14.4 Progression
(a)An employee who is 3 year trained will commence on Level 1 of the wage scale in clause 17—Minimum rates and progress according to normal years of service to Level 12 of the scale.
(b)An employee who is 4 year trained will commence on Level 3 of the wage scale in clause 17—Minimum rates and progress according to normal years of service to Level 12.
(c)An employee who is 5 year trained will commence on Level 4 of the wage scale in clause 17—Minimum rates and progress according to normal years of service to Level 12 of the scale.
(d)All other teachers and 2 year trained teachers as defined in clause 2—Definitions will commence on Level 1 of the wage scale in clause 17—Minimum rates and progress according to normal years of service to a maximum of Level 5.
[68] As will be discussed later in this decision, all currently graduating teachers are 4 year trained, which means that the minimum starting salary for a newly-qualified teacher is, pursuant to clause 14.4(b), the Level 3 salary.
[69] Clause 15 provides for the hours of work for employees covered by the EST Award except for teachers (including teachers appointed as director) employed in an early childhood service which operates for 48 or more weeks per year who are covered by Schedule A of the award.[9] Clause 15.1 states that the clause “provides for industry specific detail and supplements the NES that deals with maximum weekly hours”. The clause relevantly provides as follows:
· clause 15.3 provides that the ordinary hours of an employee may be averaged over 12 months;
· clause 15.4 provides that an employee’s ordinary hours during term weeks are variable and, in return, the employee is not generally required to attend for periods of time when students are not present subject to the needs of the employer with respect to professional development, student-free days and other activities requiring the employee’s attendance;
· clauses 15.5 and 15.6 provide that the maximum number of days an employee will be required to attend during term weeks and non-term weeks is 205 in each school year (i.e. 41 weeks), subject to specified circumstances which are not included in calculating the 205 days; and
· clause 15.9 provides that the annual salary and any applicable allowances payable under the EST Award are paid in full satisfaction of an employee’s entitlements for the school year or a proportion of the school year, and that the employee’s absence from school during non-term weeks is deemed to include their entitlement to annual leave.
[70] In summary, teachers to whom clause 15 applies are required to work no more than 41 weeks per year (subject to some exceptions), are paid a salary which is intended to compensate for all hours worked, and may not take annual leave during school term weeks.
[71] Clause 17.1 provides for the minimum rates of pay under the EST Award, which are expressed as a “Minimum annual rate” for a full-time employee. The current pay scale is as follows:
Classification Minimum annual rate
(full-time employee)$ Level 1 52,420 Level 2 53,500 Level 3 54,956 Level 4 56,938 Level 5 58,922 Level 6 60,769 Level 7 62,615 Level 8 64,597 Level 9 66,582 Level 10 68,565 Level 11 70,550 Level 12 72,531
[72] Clause 17.2 provides for an additional payment of 4% on the minimum annual rates in clause 17.1 for full-time employees who work in an early childhood service which usually provides services over a period of at least 8 hours each day for 48 weeks or more. Clause 17.2 is principally applicable to teachers employed in long day care centres, with clause 17.1 mainly applying to teachers in schools and preschools. The effective minimum annual salaries for employees covered by clause 17.2 are:
Classification Minimum annual rate
(full-time employee)$ Level 1 54,517 Level 2 55,640 Level 3 57,154 Level 4 59,216 Level 5 61,279 Level 6 63,200 Level 7 65,120 Level 8 67,181 Level 9 69,245 Level 10 71,308 Level 11 73,372 Level 12 75,432
[73] Clause 17.3 provides that weekly rates for employees covered by the EST Award can be calculated by dividing the annual rate by 52.18.
[74] Clause 19 provides for various allowances. Clause 19.2 provides that full-time teachers who are appointed as a director of an early childhood service are entitled to an allowance calculated on the basis of the number of places at the centre for which they are responsible as follows:
Level Number of places $ per annum 1 Up to 39 places 6028.30 2 40–59 places 7469.85 3 60 or more places 9068.66
[75] Clause 19.3 provides for a “leadership allowance” applicable to a teacher in schools in relation to whom the employer requires “the performance of administrative, pastoral care and/or educational leadership duties additional to those usually required of teachers by the employer”,[10] with the allowance being “linked to a position of leadership rather than tied to an individual employee”.[11] Clause 19.3(c) divides the leadership allowances into three categories: Category A covers schools with more than 600 students, Category B schools with between 300-600 students, and Category C schools with between 100-299 students. Clause 19.3(f) provides that a school with less than 100 students will “determine positions of responsibility and allowances which are appropriate to its structure”. The leadership allowance also has three levels: level 1 applies to positions of leadership “such as responsibility for the management of a major department or a pastoral care or educational leadership position of equivalent status”, and Levels 2 and 3 apply to positions of leadership “such as small learning area department heads, additional responsibilities such as co-ordination of a school publication, sports co-ordinator or similar responsibilities”. The quanta of the allowances are:
[658] In addition, we consider that it is necessary to make provision for additional remuneration for any early childhood teacher appointed to the statutory role of Educational Leader. As earlier noted, clause 19.3 of the EST Award provides for a regime of leadership allowances payable to school teachers only, with the Level 1 allowance being applicable to positions of educational leadership. We consider that the Level 1 allowance for schools in the smallest category (category C) should also be payable to early childhood teachers who are required to discharge the responsibilities of the education leader under reg 118 of the National Regulations. This allowance is currently $3,302.46 per annum.
[659] The ACA submitted, in respect of the IEU’s work value application, that the wage increases claimed by the IEU should not be granted because, among other reasons, it would disrupt the wage relativities between the EST Award and other awards which established minimum rates of pay for professional employees required to hold 4-year university degrees. Such a submission would also, presumably, equally be advanced in opposition to the wage structure set out above. The submission is rejected, for two reasons. First, the ACA did not demonstrate that there is any historical nexus or relativity between the EST Award and the other modern awards to which it referred. Second, it is open to question whether the rates for professional employees in a number of modern awards have been properly fixed in accordance with the principles stated in the ACT Child Care decision.[522] The AFEI relied upon the Egan Report to submit that the work value of teachers was less than that for professional engineers, and that minimum increases contrary to the relativities established in the Egan Report should not be awarded. We likewise reject this submission because, for the reasons outlined in relation to the equal remuneration application, the methodology used in the Egan Report (and the Mercer Report) does not establish a sound basis for the assessment of comparative work value for award wage-fixing purpose. Nor, we emphasise, is the wage structure above founded on any conclusion about the comparative work value of teachers and professional engineers.
C.11 Consideration - the modern awards objective and the minimum wages objective
[660] We have identified the modifications to the remuneration structure in the EST Award which would, in our view, be justified by work value reasons, would properly reflect the work value of teachers covered by the EST Award and would constitute properly-fixed minimum rates of pay. However, in order to give effect to those modifications by making a determination to vary the EST Award, we must first be satisfied under s 157(2)(b) of the FW Act that making the determination outside the system of annual wage reviews is necessary to achieve the modern awards objective. In addition, the modern awards objective in s 284(1) applies. Both objectives require us to take into account a number of specified matters. We must also take into account the rate of the national minimum wage pursuant to s 135(2).
[661] In relation to the matters specified in s 134(1), we are able to make the following findings:
· Paragraph (a): This is not relevant and has no weight in our consideration because employees covered by the EST Award are not low paid.
· Paragraph (b): Nearly all school teachers covered by the EST Award receive rates of pay and conditions of employment pursuant to collective agreements that are significantly more beneficial than those in the award both as it currently stands and under the contemplated modified remuneration structure. The variation of the EST Award will not affect collective bargaining in this area. In respect of early childhood teachers, there is a low incidence of collective bargaining, particularly in the for-profit sector. We do not consider this will change if the EST Award is varied as proposed. Because the variation of the award will not positively “encourage collective bargaining”, this must be regarded as a matter which weighs against the variation, albeit only to a marginal degree.
· Paragraph (c): We consider that there is a strong possibility that the higher wage rates proposed will, at least in the early childhood sector, attract greater workforce participation by teachers in that sector. We note in this respect Mr Carroll’s evidence that, at G8, the decision taken unilaterally to substantially increase the wages of its early childhood teachers has “added to G8’s value proposition” for such teachers and assisted in attracting teachers to employment with G8 and in retaining them. In circumstances where there is a shortage of teachers in the early childhood sector, and a number of witnesses referred to the difficulty in recruiting suitable persons for teaching roles and retaining them in the face of the superior employment conditions prevailing in the school sector, this consideration weighs significantly in favour of granting the application.
· Paragraph (d): We consider that the variation would likely have a neutral effect on “flexible modern work practices and the efficient and productive performance of work”. Because we are unable to positively find that the variation would “promote”, this must be regarded as a marginally neutral consideration.
· Paragraph (da): This is not a relevant consideration.
· Paragraph (e): The variation would significantly improve the remuneration of a female-dominated area of the workforce. However, its purpose would not be to equalise the remuneration of workers in this sector with any group of male workers performing work of equal or comparable value, accordingly this is not a relevant consideration.
· Paragraph (g): The proposed new classification structure, which aligns payment rates to teacher registration, is to some degree simpler and easier to understand than the current structure. This weighs in favour of the variation to a minor degree.
[662] We do not consider we are currently in a position to make findings in respect of paragraphs (f) and (h). In relation to paragraph (f), it is clear that the proposed remuneration structure would have no, or virtually no, effect upon school teachers and their employers, because the actual rates of pay for school teachers are generally already well in excess of the proposed rates of pay. However, in respect of the early childhood sector, there was considerable evidence concerning the cost of the IEU’s claim and the effects the grant of claim would have on the viability, profitability and prices of for-profit employers in particular. However, the wage rates claimed by the IEU were significantly in excess of the wage rates contained in our proposed new classification structure and, accordingly, this evidence is of limited utility in making findings concerning the matter specified in paragraph (f). In relation to paragraph (h) also, it is conceivable that, to the extent that the making of the variation might cause an increase in childcare costs, this could possibly have relevant macro-economic effects. The evidence to this point has not addressed this.
[663] As to the minimum wages objective in s 284(1), the considerations in paragraphs (b), (c) and (d) correspond respectively with paragraphs (c), (a) and (e) of s 134(1), and we make the same findings in respect of these. Paragraph (e) is not relevant. Paragraph (a) is in similar terms to paragraph (h) of s 134(1) and, for the same reasons, we are not in a position at this time to make findings about it.
[664] In accordance with s 135(2), we have taken into account the rate of the national minimum wage and have treated is as a neutral factor in our consideration.
[665] We consider that the appropriate course is to afford interested parties the opportunity to adduce further evidence and make further submissions which respond to the modifications to the remuneration structure in the EST Award which we consider to be justified by work value reasons, and which address s 134(1)(g) and (h) and s 284(1)(a), before we make findings concerning whether the variation of the EST Award to give effect to those modifications is necessary to achieve the modern awards objective and would be consistent with the minimum wages objective. Such further evidence and submissions might, among other things usefully deal with the following matters:
· what the operative date of the variation should be if it is made;
· whether any phasing-in arrangements should apply; and
· the capacity of the Commonwealth Government and State and Territory Governments to assist in funding the wages of early childhood teachers.
C.12 Next steps
[666] After interested parties have had an opportunity to peruse this decision and consider its contents, we will list a directions hearing in the matter and determine the appropriate procedural course for the final disposition of the proceedings.
VICE PRESIDENT
Appearances:
Mr I Taylor SC with Ms L Saunders of counsel on behalf of the IEU.
Ms R Mooney on behalf of the AEU.
Mr O Fagir of counsel on behalf of the ACA.
Mr R Warren of counsel on behalf of the AFEI.
Ms K Eastman SC with Ms E Raper SC on behalf of the Commonwealth.Hearing details:
2018.
Sydney:
July 26, 27, 30.2019.
Sydney (with video-link to Melbourne, Perth, Adelaide and Canberra):
11, 12, 13, 17, 18, 19, 20, 25, 26, 27 June, 1, 2, 3, 4 July and 4, 5 September.[1] Re Equal Remuneration Decision 2015 [2015] FWCFB 8200, 256 IR 362
[2] [2017] FWCFB 2690, 268 IR 36
[3] [2018] FWCFB 177, 274 IR 1
[4] [2018] FWCFB 4433
[5] [2018] FWCFB 4467
[6] The release of this data by the ABS was subject to caveats that (1) the data is subject to sample variability and volatility; (2) the survey data was not designed for use as a time series; and (3) the release was subject to confidentiality rules. The ACA and the AFE also had concerns about the sample size for early childhood teachers.
[7] Clause 4.4(c)
[8] Clause 4.4(d)
[9] Clause 15.2
[10] Clause 19.3(a)(ii)
[11] Clause 19.3(a)(iii)
[12] Clause A.1.1
[13] Clause A.1.2
[14] Clause A.1.3
[15] Clause A.2
[16] Clause A.3.2
[17] Clause A.4.1(a)
[18] Clause A.4.1(b)
[19] Clause A.4.2
[20] Clause A.5
[21] [2015] FWCFB 8200, 256 IR 362 at the Summary following [367]
[22] Exhibit 76, Document 99
[23] Exhibit 76, Document 97
[24] Cf. [2015] FWCFB 8200, 256 IR 362 at [240]-[243]
[25] ABS 6291.0.55.033, IEU outline of submissions dated 22 December 2017
[26] Exhibit 5
[27] Exhibit 134
[28] IEU outline of submissions dated 22 December 2017
[29] Exhibit 17
[30] Exhibit 39
[31] Transcript, 19 June 2019, PNs 2217-2222
[32] Ibid, PNs 2225-2229
[33] Ibid, PNs 2231-2234
[34] Ibid, PNs 2235-2241, 2304
[35] Ibid, PNs 2247-2249
[36] Ibid, PNs 2269-2273
[37] Ibid, PNs 2332-2337
[38] Ibid, PNs 2364-2365
[39] Exhibit 54
[40] Exhibit 55
[41] Exhibit 58
[42] Exhibit 59
[43] Exhibit 68
[44] Exhibit 69
[45] Exhibit 84
[46] Exhibit 94
[47] Exhibit 61
[48] Exhibit 62
[49] Exhibit 52
[50] Transcript, 25 June 2019, PNs 3058-3073
[51] Ibid, PNs 3075-3076
[52] Ibid, PNs 3099-3100
[53] Ibid, PNs 3083, 3102-3104
[54] Ibid, PN 3138
[55] Exhibit 57
[56] Transcript, 26 June 2019, PNs 3445-3446
[57] Ibid, PNs 3454-3457
[58] Ibid, PN 3465
[59] Ibid, PN 3473
[60] Ibid, PNs 3502-3505
[61] Ibid, PNs 3511-3513
[62] Exhibit 115
[63] Exhibit 105
[64] Transcript, 3 July 2019, PNs 7691-7700
[65] Ibid, PNs 7774-7779
[66] Ibid, PNs 7787-7793
[67] Ibid, PNs 7794-7796
[68] Ibid, PNs 7821-7825
[69] Ibid, PNs 7827-7831
[70] Ibid, PNs 7857-7859
[71] Exhibit 130
[72] Transcript, 4 July 2019, PN9255
[73] Exhibit 6
[74] Transcript, 4 July 2018, PNs 9260-9263
[75] Ibid, PN 9241
[76] [2019] FWCFB 3500, 289 IR 316
[77] [2020] FWCFB 3500, 297 IR 1
[78] Last adjusted as at 1 July 2020
[79] Based on the IEU relativities
[80] [2018] FWCFB 7621, 284 IR 121
[81] Ibid at [131]-[162]
(a) [82] ALHMWU re Child Care Industry (Australian Capital Territory) Award 1998 and Children's Services (Victoria) Award 1998 - re Wage rates [2005] AIRC 28, PR954938 (13 January 2005)
[83] Shop, Distributive and Allied Employees Association v National Retail Association (No 2) [2012] FCA 480, 205 FCR 227, 219 IR 382 at [35]
[84] Penalty Rates Decision [2017] FWCFB 1001, 265 IR 1 at [128]; Shop, Distributive and Allied Employees Association v The Australian Industry Group [2017] FCAFC 161, 253 FCR 368, 272 IR 88 at [41]- [44]
[85] Re Annual Wage Review 2017-2018 [2018] FWCFB 3500, 279 IR 215 at [21]- [24]
[86] Edwards v Giudice [1999] FCA 1836, 94 FCR 561 at [5]; Australian Competition and Consumer Commission v Leelee Pty Ltd [1999] FCA 1121 at [81]- [84]; National Retail Association v Fair Work Commission [2014] FCAFC 118, 225 FCR 154, 244 IR 461 at [56]
[87] Shop, Distributive and Allied Employees Association v The Australian Industry Group [2017] FCAFC 161, 253 FCR 368, 272 IR 88 at [33]
[88] National Retail Association v Fair Work Commission [2014] FCAFC 118, 225 FCR 154, 244 IR 461 at [105]- [106]
[89] Ibid at [109]-[110]
[90] Shop, Distributive and Allied Employees Association v The Australian Industry Group [2017] FCAFC 161, 253 FCR 368, 272 IR 88 at [48]
[91] CFMEU v Anglo American Metallurgical Coal Pty Ltd [2017] FCAFC 123, 252 FCR 337 at [23]
[92] See generally: Shop, Distributive and Allied Employees Association v National Retail Association (No.2) [2012] FCA 480, 205 FCR 227, 219 IR 382
[93] CFMEU v Anglo American Metallurgical Coal Pty Ltd [2017] FCAFC 123, 252 FCR 337 at [46]
[94] [2018] FWCFB 3500, 279 IR 215
[95] Ibid at [8]
[96] Ibid at [9]
[97] Ibid at [14]
[98] Ibid at [17]
[99] Exhibit 14
[100] Transcript, 12 June 2019, PN 936
[101] Ibid, PNs 941-942
[102] Ibid, PNs 952-959
[103] Ibid, PNs 962-963
[104] Ibid, PNs 966-970
[105] Ibid, PNs 976-977
[106] Ibid, PNs 980-988
[107] Ibid, PNs 995-996
[108] Ibid, PN 997
[109] Ibid, PNs 998-1075, 1153-1156
[110] Ibid, PN 1126
[111] Ibid, PN 1127, 1134
[112] Ibid, PNs 1160-1165
[113] Ibid, PNs 1140-1142
[114] Exhibit 133
[115] Exhibit 12
[116] Exhibit 13
[117] Exhibit 11
[118] Exhibit 9
[119] Exhibit 10
[120] Transcript, 11 June 2019, PNs 588-589, 604
[121] Ibid, PNs 671-672
[122] Ibid, PNs 676-680
[123] Ibid, PNs 683-687
[124] Ibid, PNs 695-697
[125] Ibid, PN 702
[126] Ibid, PN 711
[127] Ibid, PNs 712-713
[128] Exhibit 15
[129] Transcript, 13 June 2019, PNs 1210-1213
[130] Ibid, PNs 1219-1220
[131] Ibid, PNs 1225-1229
[132] Ibid, PN 1235
[133] Ibid, PNs 1259-1264
[134] Exhibit 44
[135] Exhibit 16
[136] Transcript, 13 June 2019, PNs 1318-1325
[137] Ibid, PNs 1349-1350
[138] Ibid, PN 1359
[139] Ibid, PNs 1368-1369
[140] Ibid, PNs 1375-1378
[141] Exhibit 22
[142] Transcript, 17 June 2019, PNs 1565-1567
[143] Ibid, 1570-1573
[144] Exhibit 1
[145] Exhibit 2
[146] Exhibit 25
[147] Exhibit 26
[148] Exhibit 27
[149] Transcript, 26 June 2019, PNs 4087-4088
[150] Ibid, PNs 4133-4135
[151] Ibid, PNs 4147-4153
[152] Ibid, PNs 4154-4158
[153] Ibid, PNs 4197-4203
[154] Transcript, 27 June 2019, PN4322, 4325-4332
[155] Transcript, 17 June 2019, PNs 1700-1706
[156] Exhibit 32
[157] Exhibit 29
[158] Transcript 18 June 2019, PNs 1826-1835
[159] Ibid, PNs 1837-1839
[160] Ibid, PNs 1843-1846
[161] Ibid, PNs 1848-1851
[162] Ibid, PN 1863
[163] Ibid, PNs 1868-1872
[164] Ibid, PN 1878
[165] Exhibit 33
[166] Exhibit 35
[167] Exhibit 84
[168] Transcript, 18 June 2019, PNs 1961-1962
[169] Ibid, PNs 1963-1967
[170] Ibid, PNs 1984-1990
[171] Exhibit 30
[172] Exhibit 31
[173] Exhibit 77
[174] Exhibit 63
[175] Exhibit 64
[176] Ibid at [7]
[177] Transcript, 26 June 2019, PN 3706
[178] Ibid, PNs 3714-3719
[179] Ibid, PNs 3721-3722
[180] Ibid, PNs 3734-3737
[181] Ibid, PNs 3739-3757
[182] Ibid, PNs 3761-3766
[183] Ibid, PNs 3774-3775
[184] Ibid, PN 3782
[185] Ibid, PNs 3790-3797
[186] Ibid, PNs 3809-3813
[187] Ibid, PNs 3830-3833
[188] Ibid, PNs 3875-3878
[189] Ibid, PN 3883
[190] Ibid, PNs 3882-3883
[191] Ibid, PN 3884
[192] Ibid, PNs3885-3890
[193] Ibid, PNs 3894-3895
[194] Ibid, PNs 3901-3902
[195] Ibid, PN 3903
[196] Ibid, PNs 3913-3925
[197] Ibid, PNs 3930-3936
[198] Ibid, PNs 3945-3948
[199] Ibid, PN 3955
[200] Ibid, PNs 3956-3963
[201] Ibid, PNs 3968-3972
[202] Exhibit 18
[203] Transcript, 13 June 2019, PNs 1458-1466
[204] Ibid, PNs 1467-1470
[205] Exhibit 66
[206] Exhibit 99
[207] Exhibit 67
[208] Transcript, 27 June 2019, PNs 4423-4424
[209] Ibid, PN 4453, 4478-4479
[210] Ibid, PNs 4466-4469
[211] Ibid, PN 4471
[212] Exhibit 50
[213] Transcript, 25 June 2019, PNs 2873-2874
[214] Ibid, PNs 2884-2889
[215] Ibid, PN 2896
[216] Ibid, PNs 2897- 2899
[217] Ibid, PN 2900
[218] Ibid, PNs 2903-2906
[219] Ibid, PNs 2920-2930
[220] Ibid, PNs 2936-2938
[221] Exhibit 56
[222] Transcript, 25 June 2019, PNs 3227-3237
[223] Ibid, PN 3266
[224] Ibid, PN 3284
[225] Ibid, PNs 3274-3276
[226] Ibid, PNs 3308-3309
[227] Ibid, PNs 3317-3319
[228] Ibid, PNs 3320-3321
[229] Ibid, PNs 3370-3371
[230] Ibid, PN 3379
[231] Exhibit 60
[232] Transcript, 26 June 2019, PNs 3580-3584
[233] Ibid, PNs 3585-3587
[234] Ibid, PNs 3590-3599
[235] Ibid, PNs 3605-3610
[236] Ibid, PN 3611
[237] Ibid, PNs 3624-3625
[238] Ibid, PNs 3626-3627
[239] Exhibit 70
[240] Transcript, 27 June 2019, PNs 4526-4530
[241] Exhibit 41
[242] Transcript, 20 June 2019, PNs 2426-2431
[243] Ibid, PNs 2432-2435
[244] Ibid, PNs 2436-2438
[245] Ibid, PNs 2441-2443
[246] Ibid, PNs 2448-2450
[247] Exhibit 37
[248] Exhibit 38
[249] Transcript, 19 June 2019, PNs 2112-2115
[250] Ibid, PN 2140
[251] Ibid, PN 2141
[252] Ibid, PNs 2142-2143
[253] Ibid, PNs 2148-2151
[254] Ibid, PNs 2152-2154
[255] Ibid, PN 2165
[256] Ibid, PNs 2169-2170
[257] Ibid, PN 2171
[258] Ibid, PNs 2178-2182
[259] Exhibit 36
[260] Transcript, 19 June 2019, PNs 2030-2031
[261] Ibid, PN 2034
[262] Ibid, PN 2047
[263] Ibid, PN 2056
[264] Ibid, PN 2059
[265] Ibid, PN 2071
[266] Exhibit 23
[267] Exhibit 24
[268] Transcript, 17 June 2019, PNs 1604-1605
[269] Ibid, PNs 1615-1618
[270] Exhibit 42
[271] Exhibit 43
[272] Transcript, 20 June 2019, PN 2507
[273] Ibid, PNs 2547-2556
[274] Ibid, PNs 2567-2570
[275] Ibid, PN 2613
[276] Ibid, PNs 2616-2621
[277] Ibid, PNs 2626-2627
[278] Ibid, PNs 2641-2642
[279] Ibid, PNs 2645-2656
[280] Ibid, PNs 2660-2666
[281] Ibid, PN 2683
[282] Ibid, PN 2685
[283] Ibid, PN 2687
[284] Exhibit 7
[285] Exhibit 8
[286] Transcript, 11 June 2019, PNs 429-434
[287] Ibid, PNs 444-448
[288] Ibid, PNs 480-481
[289] Ibid, PNs 452-455
[290] Ibid, PN 469
[291] Ibid, PN 470
[292] Ibid, PNs 471-474
[293] Ibid, PNs 475-476
[294] Exhibit 28
[295] Transcript, 18 June 2019, PN 1772
[296] Ibid, PNs 1773-1775
[297] Ibid, PNs 1779-1782
[298] Ibid, PNs 1787-1791
[299] Ibid, PNs 1794-1795
[300] Ibid, PNs 1796-1798
[301] Exhibit 46
[302] Exhibit 47
[303] Exhibit 48
[304] Exhibit 45
[305] Exhibit 77
[306] Exhibit 78
[307] Transcript, 27 June 2019, PN 4672
[308] Ibid, PNs 4675, 4678, 4683
[309] Ibid, PNs 4698-4699
[310] Ibid, PNs 4702-4704
[311] Ibid, PNs 4705-4712
[312] Ibid, PNs 4736-4753
[313] Ibid, PNs 4762-4765
[314] Ibid, PN 4771, 4779
[315] Ibid, PNs 4772-4774
[316] Ibid, PNs 4800-4805
[317] Ibid, PNs 4814-4817, 4934-4937
[318] Ibid, PN 4862
[319] Ibid
[320] Ibid, PN 4902
[321] Ibid, PN 4905-4922
[322] Ibid, PN 5121
[323] Ibid, PNs 5126-5132
[324] Ibid, PN 5185-5188
[325] Ibid, PN 5262
[326] Ibid, PNs 5268- 5271, 5281-5282
[327] Ibid, PN 5288
[328] Ibid, PNs 5326-5328
[329] Ibid, PN 5337
[330] Ibid, PNs 5349-5356
[331] Ibid, PNs 5358-5360
[332] Ibid, PNs 5361-5367
[333] Exhibit 84
[334] Exhibit 85
[335] Transcript, 1 July 2019, PNs 5548, 5551
[336] Ibid, PN 5554
[337] Ibid, PN 5577
[338] Ibid, PN 5594
[339] Ibid, PN 5616
[340] Ibid, PNs 5623-5628
[341] Ibid, PNs 5679-5681
[342] Ibid, PNs 5683-5686, 6289
[343] Ibid, PNs 5688-5689
[344] Ibid, PN 5693
[345] Ibid, PNs 5698-5699
[346] Ibid, PNs 5789-5790
[347] Ibid, PNs 5806-5812
[348] Ibid, PNs 5829-5832, 5839
[349] Ibid, PNs 5832-5837
[350] Ibid, PNs 5908-5912
[351] Ibid, PNs 5900-5903
[352] Ibid, PN 5906
[353] Ibid, PN 6024
[354] Ibid, PNs 6031-6033
[355] Ibid, PN 6082
[356] Ibid, PNs 6091-6095
[357] Ibid, PN 6122
[358] Ibid, PNs 6129-6135
[359] Ibid, PN 6335
[360] Ibid, PNs 6349-6350
[361] Exhibit 112
[362] Exhibit 113
[363] Transcript, 3 July 2019, PNs 8575-8577
[364] Ibid, PNs 8578-8579
[365] Ibid, PNs 8610-8611
[366] Ibid, PNs 8627-8629
[367] Ibid, PNs 8680-8681
[368] Ibid, PNs 8724-8731
[369] Ibid, PNs 8732-8735
[370] Ibid, PNs 8755-8765
[371] Ibid, PNs 8782-8784
[372] Ibid, PNs 8797-8804
[373] Ibid, PNs 8907-8915
[374] Ibid, PNs 8962, 8965-8966
[375] Ibid, PNs 8972-8974
[376] Exhibit 116
[377] Exhibit 117
[378] Exhibit 118
[379] Transcript, 4 July 2019, PNs 9358-9361
[380] Ibid, PNs 9385-9389
[381] Ibid, PNs 9402-9412, 9441
[382] Ibid, PN 9422
[383] Ibid, PNs 9442-9448
[384] Ibid, PNs 9455-9460
[385] Ibid, PN 9461
[386] Ibid, PNs 9464-9473
[387] Ibid, PNs 9474-9478
[388] Ibid, PNs 9493-9494
[389] Ibid, PN 9494
[390] Ibid, PNs 9495-9498
[391] Ibid, PNs 9499-9505
[392] Ibid, PNs 9507-9509
[393] Ibid, PN 9516
[394] Ibid, PNs 9540-9543
[395] Ibid, PNs 9591-9592
[396] Ibid, PNs 9642-9643
[397] Ibid, PNs 9644-9646
[398] Ibid, PNs 9649-9656
[399] Ibid, PNs 9704-9710
[400] Ibid, PN 9723
[401] Ibid, PNs 9734-9735
[402] Ibid, PNs 9744-9756
[403] Ibid, PNs 9760-9764
[404] Ibid, PNs 9782-9783, 9785-9787
[405] Ibid, PNs 9800-9802
[406] Ibid, PNs 9905-9909
[407] Ibid, PNs 9915-9916
[408] Ibid, PNs 9983-9995
[409] Ibid, PNs 10040-10047
[410] Exhibit 99
[411] Transcript, 2 July 2019, PNs 6815-6842
[412] Ibid, PN 6844
[413] Ibid, PNs 6847-6849
[414] Ibid, PNs 6867-6871
[415] Exhibit 106
[416] Exhibit 107
[417] Transcript, 3 July 2019, PN 7903
[418] Ibid, PNs 7904-7905
[419] Ibid, PNs 7956-7966
[420] Ibid, PNs 7996-7998
[421] Ibid, PNs 8006-8007
[422] Ibid, PNs 8008-8010, 8013-8015, 8112-8115
[423] Ibid, PN 8115
[424] Ibid
[425] Ibid, PN 8016
[426] Ibid, PNs 8018-8026
[427] Ibid, PN 8080-8083
[428] Ibid, PNs 8094-8095
[429] Ibid, PNs 8177-8181
[430] Ibid, PNs 8275-8280
[431] Ibid, PN 8211
[432] Ibid, PN 8229
[433] Ibid, PN 8340
[434] Ibid, PN 8361
[435] Ibid, PNs 8391-8393
[436] Ibid, PNs 8426-8437
[437] Ibid, PN 8446
[438] Ibid, PNs 8492, 8498-8502
[439] Exhibit 94
[440] Exhibit 95
[441] Transcript, 2 July 2019, PNs 6492-6495
[442] Ibid, PNs 6617-6618
[443] Ibid, PNs 6507-6510
[444] Ibid, PN 6521
[445] Ibid, PNs 6522-6523
[446] Ibid PN 6539
[447] Ibid, PN 6539, 6553-6554
[448] Ibid, PNs 6575-6577
[449] Ibid, PNs 6625-6629
[450] Ibid, PN 6691
[451] [2004] NSWIRComm 114, 133 IR 254
[452] [2018] FWCFB 7621, 284 IR 121
[453] Print L2535
[454] Decision, Print L0454; Award, Print L0553
[455] 25 March 1994, Print 2535
[456] Print M6311
[457] 24 February 1995, Print 23; May 1995, Print M2054
[458] Print M9746
[459] Print N2940
[460] Print L4880
[461] Print N6751
[462] PR948154
[463] Exposure Draft, Educational Services (Teachers) Award 2010, 22 May 2009
[464] [2009] AIRCFB 826 at [7], [56]-[58]
[465] [2009] AIRCFB 945 at [40]
[466] See National Wage Case Decision, 7 August 1989, Print H9100, 30 IR 81 at 99
[467] [2018] FWCFB 7621, 284 IR 121 at [150]-[161]
[468] [2008] AIRCFB 1000, PR985120
[469] [2009] AIRCFB 996, PR992240
[470] Current EST Award salary rate in clause 17.1 divided by 52.18 in accordance with clause 17.3
(b) [471] [2001] NSWIRComm 335, 120 IR 3
(c)
[472] Ibid at [15]
[473] Ibid at [22]-[23]
[474] Ibid at [368]
[475] Ibid at [370]-[374]
[476] Ibid at [376]
[477] Ibid at [376]
[478] Ibid at [377]
[479] Ibid at [381]
[480] Ibid at [411]
[481] Ibid at [419]
[482] [2002] NSWIRComm 113
[483] [2006] NSWIRComm 4
(d)[484] Teachers (Non Government Early Childhood Service Centres other than Preschools) (State) Award 2006 [2009] NSWIRComm 198, 191 IR 14
[485] Ibid at [172]
[486] Ibid at [174]-[175]
[487] Ibid at [174]-[175]
[488] Ibid at [176]
[489] Ibid at [177]
[490] Ibid at [178]
[491] Ibid at [201]
[492] Ibid at [230]
[493] Ibid at [231] – [235]
[494] Ibid at [266]
[495] Ibid at [268]
[496] [2001] NSWIRComm 335 at [352]
[497] [2004] NSWIRComm 114, 133 IR 254 at [145]
[498] Ibid at [241]
[499] Ibid at [145]
[500] Ibid at [148]
[501] Ibid at [167]-[169]
[502] Ibid at [202]-[203]
[503] Ibid at [223]-[224]
[504] Ibid at [262]
[505] Ibid at [274]-[275]
[506] Ibid at [296]
[507] Ibid at [314]
[508] Ibid at [501]
[509] Transcript, 3 July 2019, PNs 7904-7905
[510] [2018] FWCFB 7621, 284 IR 121 at [184]
[511] See e.g. ACT Child Care decision PR954938, [2005] AIRC 28 at [190]; NSW School Teachers decision [2004] NSWIRComm 114, 33 IR 254 at [274]-[275]; Pharmacy Award decision [2018] FWCFB 7621, 284 IR 121 at [188]
[512] Productivity Commission Inquiry Report, Childcare and Early Childhood Learning, 2014, Table 8.3, p.315
[513] [2001] NSWIRComm 335, 120 IR 3 at [148]
[514] Ibid at [371]
[515] [2009] NSWIRComm 198, 191 IR 14 at [173]
[516] Ibid at [174]
[517] Ibid at [134]
[518] [2018] FWCFB 7621, 284 IR 121
(e) [519] See e.g. Safety Net Review 1998 Print Q1998, [1998] AIRC 544
[520] PR002002, [2002] AIRC 530, 112 IR 411; PR002003, [2003] AIRC 482, 121 IR 367; PR002004, [2004] AIRC 430, 121 IR 389; PR002005, [2005] AIRC 508, 142 IR 1
[521] PR002001, [2001] AIRC 421, 104 IR 314
[522] See Pharmacy Award decision [2018] FWCFB 7621, 284 IR 121 at [194]-[198]; [2019] FWCFB 3949, 287 IR 129 at [1(3)],[15]; [2019] FWC 5934
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