Ms Georgina Sidon v Little Assets Childcare
[2012] FWA 6317
•27 JULY 2012
[2012] FWA 6317 |
|
DECISION |
Fair Work Act 2009
s.739 - Application to deal with a dispute
Ms Georgina Sidon
v
Little Assets Childcare
(C2012/509)
COMMISSIONER ROE | MELBOURNE, 27 JULY 2012 |
Alleged dispute concerning the applicable award and classification of an employee.
[1] On 18 May 2012 United Voice on behalf of its member Georgina Sidon (the Applicant) made an application under s.739 of the Fair Work Act 2009 (the Act) to deal with a dispute in accordance with a dispute settlement procedure. The dispute is pursuant to the disputes settlement procedure of the relevant award. The Applicant says that the relevant award is the Educational Services (Teachers) Award 2010 (Teachers Award). The disputes resolution clause of the Teachers Award is Clause 9. The Respondent employer, Little Assets Pty Ltd (the Respondent), says that the relevant award is the Children’s Services Award 2010 (Childcare Award). The disputes resolution clause of the Childcare Award is Clause 9. The two disputes resolution clauses are identical.
[2] It is not in dispute and I am satisfied that the Respondent is a constitutional corporation (ACN 122074462) located in Victoria. I am satisfied that kindergarten teachers at early childhood learning centres in Victoria are either covered by the Teachers Award or the Childcare Award. I am satisfied that one of these awards is the relevant award.
[3] The parties submit, and I am satisfied that, the disputes resolution clause of the relevant award has been followed. The parties have been unable to resolve their differences. Deputy President Smith scheduled conciliation on 5 July 2012. The conference did not proceed due to the illness of Deputy President Smith. However the parties agreed, and I am satisfied that conciliation would not further assist in the resolution of the dispute. The parties consented to the matter in dispute being determined by FWA by arbitration. This is permitted by the disputes settlement clause of both awards. I am satisfied that the dispute is a dispute about a matter under the relevant award and therefore can be determined by the disputes settlement procedure of the relevant award.
The background facts which are either agreed or not contested.
[4] The parties reached a signed agreement on 12 July 2012 concerning the essential facts. 1 In particular that:
- The Applicant is employed as a Kindergarten Teacher at Little Assets Cairnlea Early Learning Centre at 282 Station Road Cairnlea.
- The Applicant is employed pursuant to a written contract of employment which lists the Applicant’s duties in her work for the Respondent. 2
[5] I issued directions that each party should provide each other and the Tribunal with relevant material by close of business on Monday 23 July 2012 in preparation for a hearing on Wednesday 25 July 2012. United Voice provided extensive material including:
- A witness statement of the Applicant. 3
The employment contract of the Applicant. 4
[6] The Applicant has worked as a qualified Kindergarten Teacher since 1996. She currently works 22 hours per week and is paid $28.33 per hour. The Applicant completed a Bachelor of Early Childhood Studies at Melbourne University which is a qualification for a Kindergarten Teacher. The Applicant has worked at the centre since June 2010. The ownership of the centre changed in September 2010 to the present employer. All entitlements were transferred. The Applicant provided evidence of the amounts she was paid throughout her employment at the centre between 3 August 2010 and 30 June 2012. Records were not provided in respect of the period from June 2010 to 3 August 2010.
[7] The written employment contract says that the Applicant is employed under the classification Kinder Teacher K2.2 in the Childcare Award. The position details 5 identify the job title as “teacher” reporting to the “centre manager” who indirectly reports to the operations manager. The primary objectives of the position are to:
- Consistently evaluate and reflect upon teaching strategies, learning outcomes and development opportunities to improve the learning experience.
- Promote a positive and responsive environment for the children their families and staff.”
“ Deliver an effective educational program that supports children’s learning and development.
[8] The Applicant gave evidence that following correspondence from United Voice and discussions with Sharleen Thain, the Operations Manager at the time for Little Assets, it was agreed that the appropriate award was the Teachers Award. 6 In December 2011 Little Assets provided the Applicant with a revised contract of employment referring to the Teachers Award. The cover letter dated 23 December 2012 from Kathryn Broughton, Marketing and Human Resource Manager, indicated that once the signed documentation had been received from the Applicant “you will receive back pay”. The letter stated that:
“Your previous employment contract is governed under the Children’s Services Award 2010. Under the guidance of Child Care Centres Association of Victoria (CCCAV) we have been instructed to provide you with the attached employment contract to review and sign.” 7
[9] The attached contract referred to the Teachers Award and the classification at Grade 6.
[10] Around this time Sharleen Thain left employment with Little Assets. The Applicant sought some corrections to the proposed revised contract. Around March 2012 Guardian Child Care was contracted to manage and operate the centre. Guardian around 20 March 2012 advised that they maintained that the Childcare Award was the correct award.
[11] The employer submitted that all of the employees at the three centres they operate are employed and paid pursuant to the Childcare Award. The employer submitted that they employ one teacher at each of the three centres. They also submitted that the Director or Manager at each of the centres is paid $30 per hour, a little above the award minimum. One of the Managers holds a Bachelor level degree. A consequence of any decision to pay the Applicant under the Teachers Award would be that she would be paid at Level 12 under that Award which amounts to $29.43 per hour plus a 4% allowance which is an amount which exceeds the $30 per hour paid to the Director or Manager of the centre. This would not apply to any teacher but only to teachers with the extensive years of experience of the Applicant.
[12] The parties accept that in the event that I determined that the Teachers Award was the relevant award the employer will:
- Pay back pay in accordance with the material in Attachments GS2 and GS3 to Exhibit United Voice 2.
- Pay back pay on a similar basis for the period from 3 June 2012 to the date of the decision.
- Only pay back pay for the period from June 2010 to 3 August 2010 if the employer confirms that they have the records readily available.
- Pay from the date of the decision on the basis of Level 12 under the Teachers Award plus the 4% allowance applicable under that Award.
- Not be subject to any further claim in respect to the Applicant in respect to the period prior to the date of the decision.
Consideration
[13] Relevant provisions of the two awards are as follows:
Children’s Services Award 2010 | Educational Services (Teachers) Award 2010 | |||||
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 | 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 teacher means a person employed as such by a school, children’s service or early childhood education service and who performs duties which include delivering an educational program, assessing student participation in an education program, administering an education program and performing other duties incidental to the delivery of the education program. So as to remove any doubt, teacher includes a teacher in a senior leadership position, but not a principal or deputy principal. | |||||
This award covers employers throughout Australia in the children’s services and early childhood education industry and their employees in the classifications listed in Schedule B - Classification Structure, to the exclusion of any other modern award. | This award, subject to clauses 4.2 to 4.6, covers employers throughout Australia in the school education industry, children’s services and early childhood education industry and their employees as defined in clause 3.1 to the exclusion of any other modern award. | |||||
Children’s Services Employee—Director | Per Week | Per hour | Level | Per year | ||
Level 6.1 | On commencement | 1002.90 | 26.39 | $ | ||
Level 6.2 | After 1 year* | 1015.40 | 26.72 | 1 | 42,177 | |
Level 6.3 | After 2 years* | 1028.00 | 27.05 | 2 | 43,047 | |
Level 6.4 | On commencement | 1066.40 | 28.06 | 3 | 44,217 | |
Level 6.5 | After 1 year* | 1076.00 | 28.32 | 4 | 45,813 | |
Level 6.6 | After 2 years* | 1089.00 | 28.66 | 5 | 47,409 | |
Level 6.7 | On commencement | 1102.00 | 29.00 | 6 | 48,894 | |
Level 6.8 | After 1 year * | 1114.50 | 29.33 | 7 | 50,380 | |
Level 6.9 | After 2 years* | 1127.00 | 29.66 | 8 | 51,976 | |
9 | 53,572 | |||||
10 | 55,168 | |||||
11 | 56,764 | |||||
12 | 58,360 | |||||
A full-time employee who works in a children’s or early childhood service which usually provides services over a period of at least eight hours each day for 48 weeks or more (such as a long day care centre) will be paid an additional 4% on the rates set out in clause 14.1 on the basis that the employee is not covered by the provisions of clause 19 - Ordinary hours of work. | ||||||
Where an employer is covered by more than one award, an employee of that employer is covered by the award classification which is most appropriate to the work performed by the employee and to the environment in which the employee normally performs the work. NOTE: Where there is no classification for a particular employee in this award it is possible that the employer and that employee are covered by an award with occupational coverage. | Where an employer is covered by more than one award, an employee of that employer is covered by the classification which is most appropriate to the work performed by the employee and to the environment in which the employee normally performs the work. NOTE: where there is no classification for a particular employee in this award it is possible that the employer and that employee are covered by an award with occupational coverage. | |||||
Level 6—Director A Director is an employee who holds a relevant Degree or a 3 or 4 year Early Childhood Education qualification, or an AQF Advanced Diploma, or a Diploma in Children’s Services, or a Diploma in Out-of-Hours Care; or is otherwise a person possessing such experience, or holding such qualifications deemed by the employer or the relevant legislation to be appropriate or required for the position, and who is appointed as the director of a service. Indicative duties | ||||||
[14] The Full Bench in creating the Modern Awards made the following observations.
- Educational Services (Teachers) Award 2010
- Educational Services (Post-Secondary Education) Award 2010
- Educational Services (Schools) General Staff Award 2010
“Educational services (other than Higher education)
[54] The educational services sector, excluding the universities, covers a wide range of institutions and occupations. These include teachers in a preschool setting and organisations which offer non-accredited courses to adults through community based teaching and instruction. We do not consider it appropriate to attempt to encompass all of these operations in one industry-wide award and indeed none of the submissions received suggested that this was possible. We publish the following exposure drafts:
[55] The Commission received a number of submissions concerning the appropriate award coverage for preschool teachers. Some of these submissions argued that preschool and early childhood teachers should be covered by a children’s services industry award and that consideration of this should be deferred to Stage 4 when consultation concerning the childcare industry will occur. On the other hand, a number of submissions argued that preschool teachers should be covered by an education industry award.
[56] Currently classifications for preschool teachers can be found in teachers’ awards, preschool teachers’ awards and in awards covering other children’s services. A person with a degree in early childhood education can teach in either a dedicated preschool, a childcare centre, or in a school, including in the lower primary grades.
[57] We have decided, at this stage, to include preschool teachers working in services operated by a school in the draft Educational Services (Teachers) Award 2010. We will defer for further consideration, in Stage 4, the question of award coverage for preschool teachers working in preschools, kindergartens and childcare centres. Our decision to do so should not be taken as indicating that we have formed a final view in relation to award coverage for those teachers. 8
Educational services – preschool teachers
[58] The issue of appropriate award coverage for preschool teachers was raised when the Full Bench was considering educational services – other than universities, in Stage 3. The decision was made at that time to defer consideration of this issue until children’s services were being considered in Stage 4. This would enable all interested parties who might have a view to provide input to our deliberations.
[59] Currently the nature of award coverage for preschool teachers is variable. For the most part they have been covered by specific early education teachers’ awards and, to a limited extent, by awards covering other teachers. In other cases they are covered by awards which also cover other employees in the child care industry or other employees in preschools or kindergartens.
[60] There was strong support for the inclusion of preschool teachers in awards covering the “children’s services and early childhood education industry”. Equally there were strong arguments put that preschool teachers should be covered by an occupational award.
[61] After considering the submissions and the proposals advanced by the interested parties we have decided at this stage that it is more appropriate to include preschool teachers in an occupational award covering both primary and secondary school teachers. We have taken into consideration in reaching this view, the qualifications required by early childhood education teachers, their capacity to work in schools and preschools as well as childcare centres, the lack of any relationship between teaching and children’s services employees in terms of classification structures and the differences in conditions of employment.
[62] We understand that government policies will lead to an increase in the number of preschool teachers employed in childcare centres. It is, however, also likely that those policies will mean that access to early childhood education for children who are not in long day care will continue to be provided through preschools, kindergartens and preschool facilities attached to schools. The focus on the provision of early childhood education by university qualified teachers is appropriately reflected by their inclusion in an occupational award, the Educational Services (Teachers) Award 2010. 9
Educational services – preschool teachers
Educational Services (Teachers) Award 2010
[40] This award has been varied to include pre-school and early childhood teachers employed in children’s services. There are only minor changes to the draft variation following consultation. Most of the changes are to achieve consistency with respect to matters such as span of hours for teachers and other workers employed in the same children’s service. The provisions in relation to notice periods for varying the hours of part-time employees and the maximum period of employment for casual teachers have also been varied to reflect current differences between teachers in schools and those employed in children’s services.” 10
[15] Although the contract of employment of the Applicant refers to the classification Kinder Teacher K2.2 under the Childcare Award there is no such classification in the Childcare Award. Nor is there any teaching classification in the transitional award for child care work in Victoria(Children’s Services (Victoria) Award 2005). It appears that the pay rate and classification came not from the Children’s Services Award 2010 nor from its predecessor in Victoria but from the Kindergarten Teachers Award, the Early Childhood Teachers Interim Award 1999. The employer could not provide evidence of exactly where the rate and classification had come from. It is not necessary to determine this question.
[16] I consider the following to be particularly relevant.
- The fact that both Awards have coverage of the children’s services and early childhood education industry which is similarly defined in both Awards.
- The fact that the Childcare Award excludes a person employed as a teacher/integration aide, helper, classroom assistant, or director/supervisor in or in connection with childcare, preschool, long day care centres, childminding centres or outside of school hours care services but that exclusion does not include a university qualified early childhood teacher. It is not contested that the Applicant is a university qualified early childhood teacher and that she is employed as such.
- The reference in the Awards to “where there is no classification for a particular employee in this award it is possible that the employer and that employee are covered by an award with occupational coverage”.
- The clear linkage between coverage in the Childcare Award and the classifications in Schedule B - Classification Structure and the absence of any classification for teachers in that Schedule. The classification at the relevant level, those with degree qualification, is restricted to the Director classification and the definition of that classification is very much focused on management and coordination whilst the job requirements of the Applicant are very much focused on the delivery of education programs.
- The clear linkage between the coverage in the Teachers Award and the occupation of teacher. The definition of teacher specifically includes the primary role of the Applicant in early childhood education.
- The explicit statements of the Full Bench quoted earlier that: “After considering the submissions and the proposals advanced by the interested parties we have decided at this stage that it is more appropriate to include preschool teachers in an occupational award covering both primary and secondary school teachers.... The focus on the provision of early childhood education by university qualified teachers is appropriately reflected by their inclusion in an occupational award, the Educational Services (Teachers) Award 2010.”
[17] For these reasons I determine that the Applicant is engaged under the Educational Services (Teachers) Award 2010.
COMMISSIONER
Appearances:
Mr S Kempi appeared for the applicant.
Ms S Tagg and Ms K Broughton appeared for the Respondent.
Hearing details:
2012
Melbourne
July 25
1 Exhibit United Voice 1.
2 Exhibit United Voice 2, Attachment GS 1 Schedule 3.
3 Exhibit United Voice 2.
4 Exhibit United Voice 2, Attachment GS 1.
5 Exhibit United Voice 2, Attachment GS 1 Schedule 3.
6 Exhibit United Voice 2, Attachment GS 4.
7 Exhibit United Voice 2, Attachment GS 5.
8 Award Modernisation Statement (2009) AIRCFB 450.
9 Award Modernisation Statement (2009) AIRCFB 865.
10 Award Modernisation Decision re Stage 4 Modern Awards, Award Modernisation Statement (2009) AIRCFB 945.
Printed by authority of the Commonwealth Government Printer
<Price code C, PR527125>
0
0
0