C2002/5295, Transcript of Proceedings [2002] AIRCTrans 5197 (23 December 2002)

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TRANSCRIPT OF PROCEEDINGS


AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER DEEGAN

C2002/5295

CHILD CARE INDUSTRY (TEACHERS) (AUSTRALIAN
CAPITAL TERRITORY) AWARD 1999

Application by Independent Education Union
of Australia-New South Wales/Australian
Capital Territory Branch pursuant to
section 141 of the Act for a common rule
declaration for the whole of the terms
of the award

CANBERRA

2.00 PM, TUESDAY, 10 DECEMBER 2002

PN1

THE COMMISSIONER: Yes. Could I take any changes to appearances from the last time. I think it was the same thing.

PN2

MS J. HILL: If it pleases the Commission, I appear for the Association of Independent Schools. I was not here last time.

PN3

THE COMMISSIONER: Yes, thank you, Ms Hill. Right. So, this matter we commenced last time. We have had the correspondence from Miss Hill's organisation and some of the other organisations that had been served had been in touch about not having sufficient time. So, has anything happened, Ms Ryan? No, not Ms Ryan - for once not Ms Ryan. Ms Groom, has anything happened since the last occasion? Have you been in touch with any of the other employers?

PN4

MS GROOM: Yes, Commissioner, I have been in touch with Ms Hill. We met on the 28th to determine how the teachers in the independent preschools could best be served. And I think we determined that they should be included in the New South Wales Non-Government Schools ACT Award. I believe we are close to settling that - those issues, and I would request a report back on that section of the discussions.

PN5

THE COMMISSIONER: Right. Ms Hill.

PN6

MS HILL: Yes, I am sorry - - -

PN7

THE COMMISSIONER: You are right.

PN8

MS HILL: Yes, I concur that we met, but there is no agreement at this stage that preschool teachers in our independent schools be included, simple because in mid-2000 there was an in-principle understanding of some of the clauses and definitions that might be included in the Teachers Non-Government Schools Award 1999 to extend that coverage. But apparently that is now off the table because the clauses and definitions the IEU now wishes to use are New South Wales based clauses and definitions. We need an opportunity, Commissioner, to examine that, and especially in the light of the licensing conditions and provisions in the ACT, and especially in view that those conditions are being changed by the Department of Education Youth and Family Services in 2003, and particularly the change will impact on staffing and qualifications.

PN9

So, it may be the best course for some of our schools, but it is not yet determined. And I am happy to keep meeting with the IEU to work through these issues. If the Commission would like a report back, I am happy to do that as well. But I just need to correct that at the moment there is no agreement for the inclusion of those teachers in the Teachers Non-Government Schools ACT Award 1999, if the Commission pleases.

PN10

THE COMMISSIONER: Thank you, Ms Hill. Mr Morphett, have you got anything to say about the employers you represent and their attitude?

PN11

MR MORPHETT: No, if it pleases the Commission, we do not have any objection.

PN12

THE COMMISSIONER: You do not have any objection?

PN13

MR MORPHETT: With this making - with the common ruling of this award.

PN14

THE COMMISSIONER: Right. Ms Ryan, have you got anything to say?

PN15

MS RYAN: I think to restate our support for the award being declared a common rule.

PN16

THE COMMISSIONER: All right. So, Ms Groom, the ball is back in your court. What are you suggesting in relation to the declaration, a declaration which excludes all the people that Ms Hill represents, or - - -

PN17

MS GROOM: Well, your Honour, the original Child Care Industry (Teachers) ACT Award 1999 referred to teachers in long day care centres. The non-government pre-schools, as Ms Hill correctly pointed out in her letter, would not seem to be covered by that award. But at the time that the award was made there were discussions under way to include those teachers in the teachers award, and unfortunately they broke down and those teachers now find themselves award free. I do not see any significant change to the licensing arrangements would alter the fact that they are still teachers employed by independent schools and therefore should be covered by that award, and I am willing to carry on the discussions with Ms Hill, and I am sure we can find a way forward through the definitions and clauses to include those people appropriately.

PN18

THE COMMISSIONER: Well, Ms Groom, have you got a suggested text for the common rule declaration, or not?

PN19

MS GROOM: Not at this stage, your Honour, because we - at our meeting on 28 November we just discussed possible processes that could affect those changes. I am in the process of preparing a variation, but it is not complete.

PN20

THE COMMISSIONER: I see. All right. So, can I take it that no-one wants me to make a common rule declaration today? That is all I am interested in.

PN21

MS GROOM: Yes, I would like a common rule declaration - - -

PN22

THE COMMISSIONER: You would like a common - - -

PN23

MS GROOM: - - - for the Child Care Industry (Teachers) ACT Award.

PN24

THE COMMISSIONER: Well, yes, except if I do that, one, I am going to have to say who it is binding on. Right? What part of the industry. We have this problem with Ms Hill's people; if I make a declaration, by the sound of it she is of the view that it is going to cover people who you say are currently award free, that should - somebody came to an agreement not that long ago that a teachers award probably should cover those people. However, if I make this common rule, this common rule may well cover them. Now we are - I do not mind, Ms Ryan or Ms Hill, whichever gets up first.

PN25

MS RYAN: I was actually going to suggest that we go off the record for a minute because I think there may be a way forward, and we could perhaps be in a situation where we could have the award declared a common rule today, and I would like that to happen if that is possible.

PN26

THE COMMISSIONER: All right, Ms Ryan. Ms Hill.

PN27

MS HILL: Commissioner, we have no position on whether it ought to or not ought to be made common rule. So, if - - -

PN28

THE COMMISSIONER: Okay, so if it picks up your people by - - -

PN29

MS HILL: It could pick up my people by mistake and we would probably then be seeking for you to - - -

PN30

THE COMMISSIONER: So, you do not mind?

PN31

MS HILL: At this stage we do not have an objection to this award being made common rule.

PN32

THE COMMISSIONER: Fine. Well, that is a step in the right direction. I do not think we need go off the record, Ms Ryan, it appears that we do have agreement. All right. So, what should the common rule declaration say? All right, the whole of the term, we have got that far. The Child Care Industry (Teachers) (Australian Capital Territory) Award 1999, right, including any variations will be a common rule of - do you think the relevant industry is sufficient?

PN33

MS RYAN: Commissioner, I think if we went to the scope of the award, and in fact it was my recollection - - -

PN34

THE COMMISSIONER: Well, that is why I was just looking at it.

PN35

MS RYAN: - - - with the application that there was a form of words with the original application filed by the IEU.

PN36

THE COMMISSIONER: Was there?

PN37

MS RYAN: And I had no problems with those words, Commissioner.

PN38

THE COMMISSIONER: So, say that again? With the original application what?

PN39

MS RYAN: Made by the IEU - - -

PN40

THE COMMISSIONER: There was an original - - -

PN41

MS RYAN: - - - for the award to be declared a common rule there was a set of words.

PN42

THE COMMISSIONER: Was there? Well, I was just looking for that. Well, I must have missed that because the original application - - -

PN43

MS RYAN: Of the safety net adjustment - - -

PN44

THE COMMISSIONER: Yes, I got the safety net adjustment which was withdrawn, and that has got some words in it, that relates to the safety net adjustment, and all I have got is, "Application is made that the award hereinafter mentioned be a common rule". All the provisions - well, I intended to make all the provisions a common rule. It is the scope - the scope of the award - so it is about governing the wages and conditions of teachers in child care centres in the Australian Capital Territory who are employed in long day care programs as teachers and teacher directors as defined. That is - - -

PN45

MS RYAN: The scope of the award.

PN46

THE COMMISSIONER: - - - the scope that you want?

PN47

MS RYAN: If it is long day care and long day care centres I understand that will take account of your concerns because yours is licensed as independent pre-schools and not as long day care centres, is that correct?

PN48

MS HILL: Yes, Commissioner, at the moment my understanding is that in the award at 1.6 - - -

PN49

THE COMMISSIONER: Yes.

PN50

MS HILL: - - - it says, "The award shall govern the wages and conditions of teachers in child care centres in the ACT who are employed in long day care programs as teachers and teacher directors as defined".

PN51

THE COMMISSIONER: That is true.

PN52

MS HILL: I do not have an objection, Commissioner, to the award as the coverage there stands - - -

PN53

THE COMMISSIONER: Right. So, that is all right, that is all I needed to know. Were we limiting to this or were we just making it a common rule in the relevant industry? That could make it a lot wider. I mean, not making it a common rule in the relevant industry would limit it to the scope of the award just taking any respondents who are not named respondents. Right?

PN54

MS RYAN: Yes.

PN55

THE COMMISSIONER: Good. All right. And there are no exceptions. All right then, with effect from today I will declare that the whole of the terms of the Child Care Industry (Teachers) (Australian Capital Territory) Award 1999 including variations thereto to be a common rule of the relevant industry in the Australian Capital Territory and shall be binding on all employers in the said industry in respect of the employment by them of teachers in child care centres in the Australian Capital Territory who are employed in long day care programs as teachers and teacher directors as defined in the award. All right? That declaration will operate, as I said, from today's date, 10 December 2002. I will adjourn.

ADJOURNED INDEFINITELY [2.22pm]