PR954938

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AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

Workplace Relations Act 1996
s.113 applications for variation
s.107 reference to Full Bench

Australian Liquor, Hospitality and Miscellaneous Workers Union

CHILD CARE INDUSTRY (AUSTRALIAN CAPITAL TERRITORY) AWARD 1998
(ODN C No. 03697 of 1985)
[AW772250CRA Q2724]
(C2002/5237)

CHILDREN'S SERVICES (VICTORIA) AWARD 1998
(ODN C No. 20079 of 1993)
[AW772675 R0954]
(C2003/4271)

Health and welfare services
VICE PRESIDENT ROSS
SENIOR DEPUTY PRESIDENT MARSH
COMMISSIONER DEEGAN	SYDNEY, 13 JANUARY 2005

Wage rates - classification structure - new allowances - award title.

DECISION

INDEX

1. Introduction

2. The Claims and Submissions

2.1 The ACT Award
2.2 The Victorian Award

3. Relevant Award History

4. The Proper Fixation of Minimum Rates

4.1 General
4.2 The Australian Qualifications Framework (AQF)
4.3 The AQF Certificate III and AQF Diploma levels
4.4 Work value changes

5. The Evidence - Findings

5.1 Introduction
5.2 The Children's Services Sector
5.3 Work Value Considerations
5.4 From Child Minding to Child Development
5.5 Accreditation
5.6 Qualifications and Training
5.7 Recruitment and Retention

6. Summary of findings

6.1 The proper fixation of rates of pay
6.2 Children's services sector
6.3 Work value considerations
6.4 From child minding to child development
6.5 Accreditation
6.6 Qualifications and training
6.7 Recruitment and retention

7. Conclusion

7.1 Future Proceedings

		Para
1. Introduction		[1]
2. The Claims and Submissions		[2]
	2.1 The ACT Award	[2]
	2.2 The Victorian Award	[53]
3. Relevant Award History		[107]
4. The Proper Fixation of Minimum Rates		[142]
	4.1 General	[142]
	4.2 The Australian Qualifications Framework	[173]
	4.3 The AQF Certificate III and AQF Diploma levels	[181]
	4.4 Work value changes	[186]
5. The Evidence - Findings		[193]
	5.1 Introduction	[193]
	5.2 The children's services sector	[195]
	5.3 Work value considerations	[206]
	5.4 From child minding to child development	[239]
	5.5 Accreditation	[265]
	5.6 Qualifications and training	[299]
	5.7 Recruitment and retention	[341]
6. Summary of Findings		[364]
7. Conclusion		[365]

1. Introduction

[1] This decision deals with two applications (C2002/5237 and C2003/4271) by the Australian Liquor, Hospitality and Miscellaneous Workers Union (now the Liquor, Hospitality and Miscellaneous Union) (the LHMU). The applications seek to vary the Child Care Industry (Australian Capital Territory) Award 1998 (the ACT Award) and the Children's Services (Victoria) Award 1998 (the Victorian Award) in relation to wage rates, classification structure, new allowances and the award titles. The applications were joined, by consent, on 4 December 2003¹. As a consequence of such joinder the evidence in respect of matter C2002/5237 (the ACT application) has been taken into account in our consideration of matter C2003/4271 (the Victorian application) and vice versa.

2. The Claims and Submissions

2.1 The ACT Award

2.1.1 LHMU Submissions

[2] In the ACT application the LHMU seeks to vary the ACT Award to insert a new classification structure and minimum rates of pay. We note that the LHMU has amended its original application. The current classification structure and associated descriptors is set out at Annexure 1. In summary terms it is as follows:

Table 1

[3] There are four elements to the LHMU's amended claim:

(i) A change in award title.

(ii) The insertion of a new classification structure with properly fixed rates of pay.

(iii) The provision of additional allowances for directors.

(iv) A change in the title of clause 5.1.5.

Award Title

[4] The LHMU seeks to change the current title of the ACT Award to the Children's Services (Australian Capital Territory) Award 2002. It is submitted that the proposed title of the award:

• reflects the increased level of training, community expectations and responsibility of employees in the industry;
• is more appropriate in a modern context;
• reflects the fact that the award covers a range of workers and facilities including long day care, out of hours care and family day care;
• was developed during wide consultation with the children's services industry; and
• is consistent with the title of the courses offered by the Canberra Institute of Technology.

New Classification Structure

[5] The LHMU proposes a three stream classification structure: a centre based stream, a school age care stream and a family day care stream. An outline of the proposed classification structure in relation to the centre based stream is set out below.

CC1: Child Care Employees Level 1 and Support workers Level 1

Set at 87.4% of the trade rate. Workers at this level will be new to the children's services industry, without formal qualifications and are being introduced to the working environment of the service.

Employees will only remain at this level for three months.

CC2: Child Care Employee Level 2 and Support Worker Level 2

Set at 92.4% of the trade rate. The next step for CC1 level workers who have completed three months service.

This level would also be the commencement point for employees who have completed an AQF Certificate II, or for those who have enrolled in AQF Certificate III, or for employees who work within the duties contained in Annexure 2 to this document.

CC3: Early Childhood Educator Level 1 and Support Workers Level 3

Set at 100% of the trade rate. The entry point for workers who have completed an AQF Certificate III, or for employees with or without these qualifications, who are expected to undertake higher duties such as being responsible for reporting observations and for the planning and setting of menus.

CC4: Early Childhood Educator Level 2

Set at 115% of the trade rate. Employees move to this level on completion of AQF Certificate III, and AQF Certificate IV or are enrolled in the AQF Diploma, or employees with or without these qualifications who are required to undertake higher duties such as being responsible for programming for an individual child or small group of children.

CC5: Early Childhood Educator Level 3

Set at 130% of the trade rate. Employees move to this level on completion of the AQF Diploma and where employees are required to undertake higher duties such as being responsible for programming for a group.

CC6: Team Leader Level 1

Set at 145% of the trade rate. Employees move to this level on completion of the AQF Diploma and where employees are required to undertake higher duties such as the supervision of employees at levels CC1 to CC4.

CC7: Team Leader Level 2

Set at 150% of the trade rate. Employees would move to this level on completion of the AQF Diploma, and may have other qualifications such as a Graduate Certificate or an Advanced Diploma. Children's services employees at this level would be appointed as a team leader in a room and required to undertake higher duties such as the supervision for employees of level CC5.

CC8: Assistant Director

Set at 160% of the trade rate. Employees at this level are appointed as assistant director, will have at least an AQF Diploma and be required to fill in for the director in her or his absence.

CC9: Director Level 1

Set at 180% of the trade rate. Centre directors are appointed to this position under licensing requirements, and may hold an AQF Diploma, an Advanced Diploma or a recognised Degree.

CC10: Director Level 2

Set at 210% of the trade rate. Centre directors level 2 who are appointed to this position under licensing requirements, and may hold an AQF Diploma, and Advanced Diploma or a recognised Degree, as well as a Graduate Certificate in Management.

[6] The streams in respect of school age care and family day care follow a similar pattern.

[7] The descriptors for each level in the proposed structure, including the list of duties and indicative tasks, are contained in A3 to the LHMU's outline of submissions and at Annexure 2 to this decision.

[8] Four broad lines of argument were advanced in support of this aspect of the LHMU's claim:

• The rates of pay were last reviewed by a Full Bench in September 1990² (the 1990 Full Bench decision). At that time a new classification structure was inserted, by consent. The rates of pay for child care workers in the ACT have not had the benefit of an arbitrated decision of the Commission.
• The existing classification structure is no longer appropriate to the children's services industry in the ACT, having regard to the extent of the changes to qualifications and the nature of the work since 1991.
• The application is consistent with s.88B of the WR Act and principle 6, Work Value, of the Commission's Statement of Principles.
• The relativities proposed are consistent with those in the Metal, Engineering and Associated Industries Award, 1998 - Part I ³ (the Metal Industry Award).

[9] The current and proposed classification structures (below the director level) are contrasted in Table 2 below in terms of their relativity to the base trade rate at each level. A more detailed comparative document is set out in Annexure 3.

Table 2

[10] No translation table was provided by the LHMU, hence it is not possible to estimate the level of increase proposed at each level of the current classification structure. Indeed no information about the cost impact of the claim was advanced by the union at all. However, it is possible to estimate the increase at the entry point, at the C10 level and for directors.

[11] A new entrant to the industry is currently classified at child care worker level 1 (CC1). There are three increment points at this level. The LHMU proposes a new entrant level at child care employee level 1 (CC1). An employee would only remain at this level for three months before progressing to level 2. A comparison between the current and proposed rates for a new entrant and after 1 year in the industry is set out below.

Table 3

[12] In the current structure the C10 rate is set at one year's service increment in level 3. The LHMU proposes that the C10 level be at the commencement of its proposed level 3. This realignment has the effect of increasing the entry rate at level 3 by $9.20 per week.

[13] The increases at the director level are more significant and we now turn to consider that aspect of the LHMU's claims.

Directors

[14] The application seeks to remove the current structure for centre directors and replace it with a structure which is said to be based on qualifications held, skill and the requirements of the job. The LHMU also proposes to insert allowances for directors, irrespective of level, based on the number of enrolments in the centre.

[15] At present there are three classification levels for directors, each with a number of increments. The level of classification is dependent on the size of the centre being managed. At level 1 the director is a coordinator in charge of a child care centre of no more than 39 places. Level 2 covers a service with between 40 and 59 places and level 3 more than 60 places.

[16] The current and proposed classification structures for directors are contrasted below in terms of the relativity to the base trade rate at each level.

Table 4

[17] A person classified at director level 1 in the LHMU's proposed structure is responsible for the overall management and administration of the centre and:

"... is an employee who holds a Degree in Early Childhood or an Advanced Diploma or a Diploma in Children's Services or equivalent..."⁴

[18] In addition to the qualifications required of a level 1 director a person appointed as a level 2 director holds a Graduate Certificate in Childcare Management.

[19] Progression within the two new proposed director's levels appears to be subject to an employee meeting the following criteria:

• competency at the existing level
• 12 months experience at that level and in service training as required
• demonstrated ability to acquire the skills which are necessary for advancement to the next pay point.

[20] The LHMU proposes a 30 per cent pay differential (between directors level 1 and 2) based on the completion of a Graduate Certificate in Childcare Management. The differential in the current structure associated with that qualification ranges from 7.25 percent to 13 per cent depending on the classification level and increment point. It is not suggested that the qualification requirement has changed since the current structure was determined. Other than a general reference to increase in work value, no particular justification was advanced for the differential between proposed director levels 1 and 2.

[21] In addition to the proposed two level structure, the LHMU seeks to insert allowances for directors at each level based on the number of licensed places. No allowance would be paid to directors of centres with 39 or less licensed places. Directors of centres with 40 to 59 licensed places would receive an allowance of $98.90 per week. A director of a centre with more than 60 licensed places would receive an allowance of $123.56 per week.

[22] No particular rationale was advanced in support of the quantums proposed. At present the margin paid to a director of a centre of 40 to 59 places is $42.90 (as opposed to $98.90 in the LHMU's proposal). A director of a centre with more than 60 places receives $78 more than a director of a centre with 39 places or less (as opposed to $123.56 in the LHMU's proposal).

[23] The LHMU contends that the evidence shows "that there had been a large degree of work value change in the work of childcare employees since they were last examined in 1990." It is submitted that a "key theme" emerging from the evidence is summarised in the following extracts from the evidence of Ms Elizabeth Dau, a witness called by the respondents:

"I believe the childcare industry has changed since 1990 in many ways ..."⁵

"And the pressure under which staff work. It is a very stressful job working with young children. It's a very - a critically important job."⁶

"I think if we don't increase the wages, we're going to be in big trouble."⁷

"But people who study - I mean, if they give a year to study then certainly there is increased knowledge and increased skill."⁸

"I have been an advocate for many years for changes to the salary rates for people working with young children."⁹

"... And we know that the quality of care that children receive is absolutely critical in terms of the outcomes for children in later - in later years. We also know now without a doubt that if children come from a background that is less than optimum that if they are in services of a very high quality then the - those disadvantages can be very quickly ameliorated. But we also know that if they go into a centre of less quality that in fact it's a double whammy, if I may use that expression, for those children. So, there's been huge research around the absolutely critical nature of the work that people who work in the child care profession do. And I think it has - and I think we need to recognise that by paying them more appropriately."¹⁰

[24] The specific work value changes identified are:

• the implementation of the Quality Improvement Accreditation System (QIAS);
• the QIAS requirement for daily, individual programs specifically defining all aspects of child development;
• increased encouragement of workers by employers to undertake structured accredited training in the AQF Certificate III and AQF Diploma, as well as the Graduate Diploma in Management for directors and the expectation that those trained employees will utilise these skills on the job;
• management's utilisation of this training of staff for individual and group programming. This programming involves identifying and programming for the special needs of children, programming and planning for a much greater number of children in formal care in any one week, and new requirements in the regulations to stimulate and develop each child's social, physical, emotional and language needs;
• increased role of carers with parents and family in providing direct and relevant feedback with respect to the performance of their child during the day, in answering questions with respect to behavioural issues, developmental issues and in assisting with accessing governmental agencies for further support;
• increased emphasis placed upon quality, with higher expectations of standards coming from parents, the community and government, reflected in the changes in training and legislation;
• the diversity of cultures and family backgrounds of the Australian community;
• increased numbers of children with special needs in centres;
• requirement of qualified workers to be team leaders and to supervise and train workers with a similar qualification or lesser qualifications, and the development of on the job trainees. These new requirements for supervision, monitoring and mentoring have dramatically increased in centres where the trainees are placed to learn on the job;
• new regulations and legislation;
• administering medications (in the absence of nurses), and first aid training requirements;
• various centre and government policies and procedures implemented as a result of QIAS and government legislation;
• other in-service training courses which are undertaken by workers and then implemented on the job;
• early intervention, and recent research on brain development;
• significant changes to training from the certificate held in 1990, including all of the changes to present day;
• the increased Government and societal expectations placed on the educative role of children's services, and the recognition of the importance of the early years;
• increased work connected with policy writing, record keeping, and more legislation to be aware of, by all employees in services. This is reflected in the requirement for police checks of potential employees, not previously required, as well as in-house training to ensure the ongoing development of staff, and as a result, the greater diversity of programming and responsiveness to children's issues;
• mandatory reporting - there is now a new requirement for workers to be responsible or at least aware of suspected child abuse. In the ACT, all children's services workers are mandated to report abuse, which is the same requirement for the director of services in Victoria. All other children's services employees in Victoria are required to be aware of suspected child abuse. This is reflected in the new requirements by centres to the changes in staff practices and the introduction of new procedures which were now required of all staff, contractors, visitors and parents.

[25] Further, the LHMU contends that changes in the pattern of child care utilisation and the resultant increase in part time care has also had a significant impact on the work of child care employees.

[26] The union submits that a new classification structure which recognises qualifications and supervisory or other higher duties is critical, for four reasons:

1. A skills based career path is necessary to overcome massive skill shortages in the industry by properly linking skills acquired with classification outcomes.

2. Employees who undertake further study have an understanding and knowledge of the industry which is utilised on the job.

3. Early Childhood Educators Level 2 will be able to undertake higher duties such as programming for individual children or small groups.

4. The supervisory duties of employees in the industry are largely unrecognised at present. The placement of trainees is widespread and employees are not remunerated appropriately for the higher skills required to supervise, monitor, instruct and assess these trainees.

[27] In addition to work value considerations, it is also argued that the application is in the public interest in that it recognises the "essential and increasingly important role of development, care and education in children's service facilities" and "the importance of the early years as crucial in children's development."¹¹ It is submitted that granting the application will address the "crisis of low pay in childcare"¹² which was critical to ensuring quality care.

[28] The LHMU seeks an operative date of the first pay period on or after the date of the Commission's decision. In respect of the phasing-in of the increases sought, the LHMU proposes that in the community based sector the increases should be paid over twelve months. No phase-in is proposed in the "for profit and corporate sector", on the basis that the LHMU contends that the increases are affordable and the sector has the capacity to pay the claim.

Title of Clause 5.1.5

[29] Clause 5.1.5 is headed "Incremental progression" and is in the following terms:

"5.1.5 Incremental progression

5.1.5(a) Progression from one level to the next within a classification is subject to a child care worker meeting the following criteria:

• competency at the existing level;
• 12 months experience at that level and in-service training as required;
• demonstrated ability to acquire the skills which are necessary for advancement to the next pay point level.

5.1.5(a)(i) Where an employee is deemed not to have met the requisite competency at their exiting level at the time of appraisal, his/her incremental progression may be deferred for periods of three months at a time provided that:

• the employee is notified in writing as to the reasons for the deferral;
• the employee has, in the twelve months leading to the appraisal, been provided with in-service training required to attain a higher pay point;
• following any deferral, the employee is provided with the necessary training in order to advance to the next level.

5.1.5(b)(ii) Where an appraisal has been deferred for operational reasons beyond the control of either party, and the appraisal subsequently deems the employee to have met the requirements under this clause, any increase in wage rates will be back paid to the 12 month anniversary date of the previous incremental progression.

5.1.5(b) An employee whose incremental advancement has been refused or deferred may seek to have the decision reviewed by lodging a written request through the dispute resolution procedure in clause 3.1 of this award. If the review is successful, then the incremental advancement will be backdated to the original due date. The review process must be completed within two months of the request for the review being made."

[30] The LHMU proposes to replace the title of the clause with a new title: "Incremental Progressions". The substance of the clause is to remain unchanged.

2.1.2 The ACT Employers

[31] A joint submission was filed on behalf of the Australian Federation of Child Care Associations; the ACT Children's Services Association; Southside Community Services; Communities @ Work; and the Confederation of ACT Industry (collectively, the ACT Employers).¹³

[32] The ACT Employers oppose the classification structure changes proposed by the LHMU. Two broad arguments are advanced in this regard. First, it is argued that the LHMU's proposed classification structure is unnecessarily complicated and that the creation of different classification structures for the different streams of child care creates further barriers to movement within the industry. For example, the proposed CC6 level does not exist in the School Age Care stream, hence a team leader level 1 in the Centre based stream would find it difficult to move horizontally across to School Age Care. The complexity of the proposed structure is also said to conflict with the principles set out in the National Wage Case February 1989 Review where it was held that:

"... where necessary, the number of classifications in an award should be reduced ... to provide for clearly defined skill levels, broadbanding of functions and multi-skilling."¹⁴

[33] The second broad argument against the proposed structure is that the LHMU has not provided adequate justification or evidence to warrant the significant changes it proposes to the classification structure. While the ACT Employers acknowledge that since 1990 changes have occurred in the work value of child care workers, they reject the proposition that these changes have been sufficient to justify the classification structure proposed by the union. Indeed it is argued that the changes proposed are so substantial that they have the potential to affect external relativities with other awards. For example it is possible under the LHMU's proposed structure for an employee with AQF Certificate II to achieve a pay outcome equivalent to a person with a three year degree under the Childcare Industry (Teachers) (Australian Capital Territory) Award 1999¹⁵.

[34] In this context it is also submitted that the proposed link between classification CC3 and the 100 per cent metal engineering tradesperson rate is an unwarranted departure from the 1990 Full Bench decision. Contrary to the LHMU's submission, the ACT Employers contend that the 1990 Full Bench matter was the subject of arbitration. While there was considerable agreement among the parties on most matters, there was disagreement with respect to wage outcomes and external relativities. The 1990 Full Bench determined that an employee holding a Child Care Certificate (CCC) with one year's experience in the industry was equivalent to an Engineering Tradesperson level 1 for the purpose of fixing an external relativity. All other relativities were set internally by agreement between the parties and adopted by the 1990 Full Bench.

[35] The ACT Employers contend that the Certificate III in Children's Services is not equivalent to the CCC qualification and should not be used as such. The CCC was a two year full time course whereas the Certificate III is a one year introductory course. It is also submitted that:

"... the qualifications the Union is seeking to compare [i.e. the Certificate III in Children's Services and the Engineering Production Certificate] are vastly different and that commonality in name does not imply that the training required to complete the qualification is equal."¹⁶

[36] The ACT Employers submit that the courses in early childhood education have changed little since the 1990 Full Bench proceedings.

[37] In addition to these two broad lines of argument the ACT Employers advanced a number of specific criticisms of the LHMU's proposal, namely:

• The titles of otherwise similar classifications appear discriminatory. At the CC3 level an employee can be a "childhood educator", a "school age care employee" or a "playgroup assistant". These issues are said to have particular significance within the industry.
• An employee may be classified at some levels in the proposed structure simply because they have enrolled in a particular course of study. For example, to be classified at the Early Childhood Educator level 2 it is sufficient if the employee has enrolled in a Diploma. Enrolment in the Diploma requires no prerequisite qualifications or experience.
• The descriptor associated with the new classification of assistant director is confusing in that it seems to imply that an employee who is a team leader can drift into the assistant director level merely by undertaking some defined additional responsibilities without being promoted to an actual job.
• The director level classifications are problematic. There is insufficient distinction between the two levels. While a director level 2 `must' possess a Graduate Certificate in Child Care Management an employee can be appointed to the position without such a qualification, hence any such distinction is irrelevant.

[38] The ACT Employers propose an alternative structure to that proposed by the LHMU. The alternative structure advanced by the ACT Employers also has the support of the following child care providers in the ACT:

• Northside Community Services;
• Gungahlin Regional Community Service;
• Belconnen Community Service.

[39] The alternative structure proposed is set out below.

Child Care Professional Level 1
Commences at 85% of trade rate.

Child Care Professional Level 2
Commences at 92.5% of trade rate.

Child Care Professional Level 3
Commences at 110% of trade rate.

Assistant Director
Commences at 125% of trade rate.

Director Level 1
Commences at 145% of trade rate.

Director Level 2
Commences at 165% of trade rate.

[40] The detail associated with the proposed structure is set out at attachment H to the Employers' written outline of submissions and at Annexure 4 of this decision.

[41] The ACT Employers' structure provides for employees to enter the Certificate Level (Child Care Professional Level 2) with a Certificate III or relevant experience; however, the employee cannot proceed past the barrier at the third increment point unless they have the CCC qualification or equivalent. The ACT Employers' structure broadbands the existing Child Care Worker Levels 2 and 3 with a commencing paypoint of 92.5 per cent of the Tradesperson C10 rate. The top pay point, set at the 100 per cent C10 rate, is reserved for an employee who holds CCC. It is argued that this is consistent with the 1990 Full Bench decision.

[42] The ACT Employers' structure also broadbands the current Child Care Worker Levels 4 and 5 into one classification level, Child Care Professional Level 3. The proposed classification has a commencement rate set at 110 per cent of the C10 trade rate.

[43] A new classification of assistant director is proposed, with a pay rate set at 125 per cent of the C10 trade rate.

[44] The ACT Employers' structure reduces the number of classifications at the director level from three to two, and has differentiated between the levels on the basis of a sixty-place child care facility or, in the case of family day care, sixty family day carers.

[45] It is contended that the proposed structure seeks to "reduce and simplify" the existing structure and to:

• largely realign the relativities set by the Full Bench in 1990, while increasing the relativities at the lower end to take account of work change and to provide increased wage outcomes at all levels;
• introduce a new level of assistant director; and
• provide sufficient incremental structure to create a career path for employees.

[46] It is argued that the proposed structure realigns internal relativities having regard to changes in work value but maintains the integrity of external relativities by ensuring that the C10 100 per cent trade rate remains aligned at the level set by the 1990 Full Bench.

[47] The ACT Employers submit that it is not appropriate to establish the Certificate III as if it were an equivalent qualification to the superseded CCC, i.e. at the C10 100 per cent trade level. It is said that there is now no equivalent qualification to the CCC in the Children's Services qualification stream.

[48] The relativities above child care levels 1 and 2 have to be realigned to the levels determined by the 1990 Full Bench, as they had been eroded as a result of the awarding of flat dollar safety net adjustments. The ACT Employers do not propose to realign the child care levels 1 and 2 (which are up to 4 per cent higher than when set in 1990) for "social and policy" reasons.

2.1.3 LHMU Submissions in Reply

[49] In reply, the union contends that the submissions by the ACT Employers in respect of the CCC ignores the fact that this course has not been available since 1990 and that the qualifications and training of workers in the industry have changed significantly since that time.

[50] The LHMU has sought to address some of the specific issues raised by the ACT Employers by revising its proposed structure to include the classifications of team leader 1 and 2 in the School Aged Care stream.

[51] Other criticisms of the proposed structure are rejected, in particular:

• Contrary to the ACT Employers' submission, it is argued that the proposed structure is designed to facilitate employment movement between the three streams. It is also argued that the proposal is consistent with the licensing structure for the different services in the ACT.
• The criticism of the classification titles are rejected. It is said that the proposed structure is supported by the employees in the industry.
• The proposed structure is not inconsistent with the February 1989 National Wage Case decision. That decision only requires that the number of classifications in an award should be reduced "where necessary". The Commission went on to say that the purpose of such a process was to "provide for clearly defined skill levels, broadbanding of functions and multi-skilling."¹⁷ The proposed structure is consistent with that purpose.
• The ACT Employers are incorrect when they contend that in the proposed structure employees can be classified on the basis of merely being enrolled in a particular course of study. In this context the union submits that the evidence shows that employees actively use the skills and knowledge learnt in studies and on the job. Further, employers prefer to employ workers who are enrolled in study or who have completed some study because of the wider duties and theoretical knowledge and understanding taught in the courses and consequently utilised on the job. It is contended that the proposed structure is directly comparable with that in the Metal Industry Award which includes recognition for enrolment in courses.
• The LHMU rejects the employer proposition that it has "created new relativities to achieve its own purpose." It is said that each of the relativities proposed has been directly compared with the level of skill, responsibility and qualifications in the Metal Industry Award. In this regard it is submitted that the level of skill, responsibility and requirements of the job of Centre Directors are at least equivalent to a degree qualified professional engineer or professional scientist.
• The ACT Employers' concerns in relation to the descriptor for team leader and assistant director are unfounded. A team leader cannot "drift" into the assistant director position unless they have been appointed to that position.

[52] The LHMU rejects the ACT Employers' alternate classification structure on the basis that it diminishes the current skill based structure, contrary to the requirements of s.88B of the WR Act, and fails to take account of work value changes since 1990. It is submitted that the ACT Employers' draft does not provide adequate descriptors such as to indicate that it is a skills based classification structure, and no comparison is provided to the classification levels in the Metal Industry Award.

2.2 The Victorian Award

[53] The current classification structure and wage rates in the Victorian Award is set out below:

Table 5

[54] Clause 16.4 of the Victorian Award deals with progression from one level to the next within a classification. It states:

"16.4.1 Progression from one level to the next within a classification is subject to a childcare worker meeting the following criteria:

• competency at the existing level;
• 12 months experience at that level and in-service training as required;
• demonstrated ability to acquire the skills which are necessary for advancement to the next pay point level.

Provided that progression between the Groups within Level three is dependent upon the completion of a bridging or upgrading course.

16.4.1(a) Where an employee is deemed not to have met the requisite competency at their existing level at the time of appraisal, his/her incremental progression may be deferred for periods of three months at a time provided that:

• the employee is notified in writing as to the reasons for the deferral;
• the employee has, in the twelve months leading to the appraisal, been provided with in-service training required to attain a higher competency level;
• following any deferral, the employee is provided with the necessary training in order to advance to the next level.

16.4.1(b) Where an appraisal has been deferred for operational reasons beyond the control of either party, and the appraisal subsequently deems the employee to have met the requirements under Clause 16.3 above, any increase in wage rates will be back paid to the 12 month anniversary date of the previous incremental progression.

16.4.2 Incremental progression to the next pay point level may be accelerated if:

• an employee has achieved competency at his/her existing level,
• has demonstrated an ability to acquire the skills necessary to progress to the next pay point level prior to the completion of 12 months at his/her existing level.

Either the employer or the employee may seek to implement accelerated advancement."

[55] The descriptors associated with each classification level are set out at Annexure 5.

[56] For present purposes the classification of child care worker level 3 is particularly important. An employee classified at this level is involved in the delivery of a children's services programme who is either:

"GROUP (A): Persons who are either qualified (other than qualifications outlined in Groups (B) and (C)) in accordance with the Children's Services Centres Regulations 1998 Regulation number 56. Persons employed in this category shall be employed from level 3.1 to 3.6.

GROUP (B): Persons who hold an Advanced Certificate or Associate Diploma in Child Care Studies including persons with these qualifications who were registered Mothercraft Nurses, persons who hold a Diploma of Community Services Childcare, or a Diploma in Children's Services, are entitled to salary subdivisions set out above for Group (B). Persons employed in this category shall be employed from level 3.4 to 3.9.

GROUP (C): Persons who hold a three year Degree or Diploma in Child Care Studies or equivalent qualification are entitled to salary subdivisions set out above for Group (C). Persons employed in this category shall be employed at level 3.6 to 3.9.

GROUP (D): Persons with the qualifications outlined in (A) or (B) or (C) above, but who undertake additional responsibilities to those outlined in 15.1.3(a), including co-ordination of the activities of more than one group, supervising workers and assisting in administrative functions, are entitled to salary subdivisions set out above for Group (D), provided that they shall maintain their existing wage rate if higher at the time of appointment. Persons employed in this category shall be employed at levels 3.7 to 3.9, provided that where an employee is in receipt of a wage higher than that contained within this award, the higher rate shall apply.

and

15.1.3(b) Whose duties will include the following:

• work as the person in charge of a group of children in the age range, 0 to 12 years;
• develop, plan, implement, and evaluate in conjunction with the Director or Assistant Director a developmental program;
• supervise qualified or unqualified workers caring for the group of children;
• liaise with parents;
• ensure a safe environment is provided;
• ensure that records are maintained and are up to date concerning each child in their care;
• develop, implement and evaluate daily routines;
• be responsible to the Director or Assistant Director for the assessment of students on placement;
• ensure the policies of the Centre or Service are adhered to;
• be aware of and comply with all relevant regulations.

15.1.3(c) Progression through the relevant salary sub-divisions shall be dependent upon the advancement of skills attained via in-service training in areas such as health and safety, first aid, Regulations and Licensing requirements, knowledge of, and participation in, accreditation."

2.2.1 LHMU Submissions

[57] In the Victorian matter the LHMU seeks to vary the Victorian Award to insert a new classification structure and minimum rates of pay. We note that the LHMU has amended its original application.

[58] The arguments advanced in support of the new classification structure are broadly the same as those put in support of the LHMU's claim in respect of the ACT Award. The only significant differences in the arguments advanced relate to the history of the Victorian Award and the extent of the changes to child care courses offered in Victoria. The relevant award history is dealt with in the next part of our decision and the changes to training courses are dealt with in section 4.

[59] There are a number of differences between the LHMU's ACT and Victorian applications, specifically:

• the titles of employees from CC4 and above;
• the number of levels for centre directors;
• the insertion of a degree qualification in CC7; and
• the insertion of a first aid allowance in the Victorian Award.

[60] In all other respects the amended applications are the same.

[61] In respect of the change in classification title, employees at level CC3 and above in the proposed ACT structure are referred to as "Early Childhood Educators". In the proposed Victorian Award structure they are called "Early Years Development Workers".

[62] The differences in the structures proposed for centre directors are more significant. In its Victorian Award proposal the union seeks four director levels based on the number of licensed places at the centre, as follows:

Table 6
LHMU's Victorian Award Proposal

[63] The qualification requirements for each of these levels is the same and they are also the same as the qualifications required for appointment to director level 1 in the LHMU's proposed structure for the ACT Award. A comparison of the union's proposed classification structures for directors in each award is set out below:

Table 7

[64] The differences in the classification descriptors for a level 4 director in Victoria and a level 1 director managing a 60 plus place centre in the ACT are insignificant. Yet on the LHMU's proposal the ACT director would receive $72.84 less per week. There was no explanation for this wage differential. It was not suggested that there was any difference in work value such as to warrant this difference in wage rates.

[65] The award wage increases associated with the LHMU's proposal are substantial. At the director level the increases range from $268¹⁸ to $396¹⁹.

[66] The table on the following page gives an indication of the magnitude of the increases proposed.

Table 8
Victorian Award vs LHMU Claim

[67] In its reply submissions the union acknowledges that if granted its application would result in wage increases of between 7 and 28.6 per cent.

[68] The LHMU contends that the increases sought are affordable and in this regard relies on the evidence of Ms Petra Hilsen²⁰ and Ms Michelle Walker²¹. The union also relies on the cross examination of Mr Martin Kemp and his evidence regarding the improving financial position of his company, ABC Developmental Learning Pty Ltd (ABC),²² but contended that the Commission should place little or no weight on Mr Kemp's assertion that ABC could not absorb some of the increases which would arise if the union's application were granted. Mr Kemp is a Director of ABC. In this regard the LHMU relies on the evidence about ABC's financial position and its failure to adduce any evidence to support the assertion that it could not absorb some of the increase.

[69] Similarly the LHMU argues that the Commission should not rely on the evidence of Mr Lucian Roncon or Ms Linda Mrocki regarding the cost impact of granting the claims before the Commission. No financial statements were provided to support the assertions made.²³

First Aid Allowance

[70] In addition to its claim for a new classification structure, the LHMU also seeks the insertion of a first aid allowance in the Victorian Award, in the following terms:

"19.5 First Aid Allowance

19.5.1(a) An employee who has been trained to render first-aid and who is the current holder of appropriate first-aid qualifications such as a certificate from St. John Ambulance or a similar body shall be paid an amount of $10.28 per week.

19.5.1(b) If the employer requires an employee to undertake first aid training, then such training shall be in paid time and the cost of course (including course materials) shall be paid by the employer."²⁴

[71] The LHMU contends that the evidence establishes that the administration of first aid is a requirement of the job of child care workers and many employers expect their employees to have a first aid certificate.²⁵ It relies on a decision of Deputy President Maher in Re: Commonwealth Bank of Australia Officer's Award 1990²⁶ in support of its contention that an allowance is appropriate, on work value grounds, in circumstances where there is an expectation that employees will administer first aid as part of their duties.

[72] The LHMU also relies on the fact that the Children's Services Regulations (Vic) 1998 now provide that centre proprietors are required to ensure that a first aid qualified staff member is on duty at all times. Clause 26 of Part 5 - Staffing, of the Regulations states:

"The proprietor must ensure that at least one staff member on duty whenever children are being cared for or educated by the children's service has first aid training in emergency life support and cardio-pulmonary resuscitation, convulsions, poisoning, respiratory difficulties, management of severe bleeding, injury and basic wound care appropriate for those children."

[73] If the Commission is not inclined to grant the LHMU's primary application then, in the alternative, it seeks a clause in the same terms as appears in the ACT Award.

[74] Clause 5.5.2 of the ACT Award states:

"5.5.2(a) The employer shall appoint an employee to act as a first aid person and where practicable such employee shall be qualified in first aid. An employee so appointed who has undertaken a first aid course and who is the holder of a current recognised first aid qualification such as a certificate from the St. John's Ambulance or similar body shall be paid an allowance of $6.32 per day. Provided that employees engaged in out-of-school hours care and appointed as First Aid person shall be paid 83 cents per hour additional to his/her ordinary rate of pay.

5.5.2(b) Provided that a first aid person need not be appointed where a qualified nurse is on the premises at all times."

2.2.2 Australian Childcare Centres Association and the Child Care Centres Association of Victoria Submissions

[75] The members of the Australian Childcare Centres Association (ACCA) and the Child Care Centres Association of Victoria (CCCAV) (or collectively, the Associations) are unable to agree that the wage increases which would result from the LHMU's claim being granted are fair, reasonable and sustainable. Even with the benefit of phasing-in, the increases proposed are very significant.

[76] ACCA is a registered organisation of employees under the WR Act. CCCAV is a State based employer association.

[77] The eligibility rule of the ACCA entitles it to represent employers in the private long day care sector of the child care industry, and the majority of members of CCCAV are also private sector employees in the long day care sector. Membership of both associations ranges from single owner operator establishments and multi location employers, through to large corporate employers who operate a significant number of centres in Victoria as well as in other States and Territories.

[78] The Associations oppose the LHMU's claims in respect of the ACT Award and the Victorian Award, though their submissions are primarily directed at the proposed changes to the Victorian Award. It is argued that the current wage structure in the Victorian Award reflects properly fixed minimum rates consistent with s.88B and the objects of the WR Act. The Associations submit that the employment structure in the industry is not so complex as to warrant the detailed classification structure sought by the LHMU.

[79] In particular, the Associations reject the relativities proposed by the LHMU at the Certificate III and Diploma level. In relation to the proposed link between a Child Care Certificate III qualification and the C10 level in the Metal Industry Award the Associations submit:

"11.2 ...in the Metals Industry, to undertake a trade, complete that trade and become entitled to the classification level C10, an employee must undergo at least one year's pre-vocational training plus a further 3 years' experience on the job performing the tasks required. The LHMU claim would, in a practical sense, mean that an employee who completes AQF Certificate III, which on average is 12 months or at best 18 months, without any further experience would be entitled to the 100% level.

11.3 The Associations represented in these submissions would submit most strongly that the attainment of a Certificate III in Child Care is not equivalent to the Metals Industry C10 level, and indeed falls below that level when the relative length of experience is factored into the assessment for the establishment of a wage relativity."²⁷

[80] The Associations submit that the attainment of a Certificate III in Child Care is not equivalent to the C10 level in the Metal Industry Award. The Associations contend that the 100 per cent relativity properly lies at the beginning of the existing Victorian Award structure namely child care worker level 3 subdivision 1. This is an employee who has either undertaken and completed a two year Diploma course or has achieved Certificate III and then completed a further twelve months of part time study to attain a Diploma. In determining the appropriate level for both Diploma and Certificate III employees it is contended that the Commission should take into account all factors relevant to the assessment of work value, including knowledge and experience required to perform the role, not simply qualifications alone. A comparative table setting out the wage rates in the Victorian Award (as at June 2003) and the respective claims advanced before us is at Annexure 6.

[81] In relation to such considerations the Associations advance three broad points:

1. Much of the evidence relied on by the LHMU relates to the employees' individual experiences and provides little reference to actual changes to the levels of skill, responsibility and requirements of the job. In fact the fundamental nature of the work has not changed.

2. The claim of increased work value and work load as a result of the accreditation requirements is "significantly overstated". Many of the tasks and functions covered under the accreditation guidelines and principles are simply a restatement of requirements that already exist under regulations and/or were being carried out by centres for many years as a matter of course in the provision of quality child care services.

3. The requirements and tasks set out in the Children's Services Regulations 1998 have been in existence for more than ten years.

[82] The Associations contend that the LHMU has not established that there have been changes in the work of child care workers such as to constitute a significant net addition to work requirements within the meaning of the work value principle. In this context the Associations submit:

• The applicant's reliance on claims of shortages of qualified child care workers is misplaced. Attraction and retention arguments do not provide a proper basis for a work value adjustment.
• Claims of increased parental or community expectations are not properly in the sphere of the work value principle and should not be regarded as factors which form a basis for assessing changes in work value.
• Changes in work as a consequence of the introduction of accreditation have been evolutionary and have resulted in changes in workload, not necessarily work value. The fundamental tasks being performed may still be the same, however the documentation of those tasks is now far more comprehensive. But there is nothing new or novel in such requirements and they are common to a variety of industries and services that have implemented a quality assurance system. Further, quality accreditation is particular to the centre and is not conferred on any individual employee. There is no component of any individual employee's work that can be said to be of increased "quality" as a result of a centre achieving accreditation.

[83] In addition to these general submissions the Associations contend that there are a number of particular problems with the classification structure proposed, namely:

• The basis for progression through the proposed structure. In some instances advancement is on the basis of an employee merely enrolling in a particular course of study.
• The descriptors are confusing.
• The practical application of the proposed structure would result in increases which would be far greater than originally contemplated. Employees who hold a Certificate III or a Diploma, and who are in charge of children, will not be classified at the 100 and 130 per cent relativity respectively but are far more likely to be classified at CC4 (120%) and CC6 (145%).

[84] It is also submitted that, if implemented, the cost of the claim would be very significant and would have potential flow on consequences for other awards covering the child care industry. Attached to the witness statement of Mr Kemp²⁸ is an illustration of the wage cost impact of the LHMU's proposal in relation to two centres operated by ABC. The material attached to his statement suggests that if implemented, the union's claim would increase wage costs by about eighteen per cent.

[85] It is argued that any increase in wage costs will inevitably be passed on by way of increased fees to parents. Increased fees will impact directly on families seeking to access child care services, with the greatest impact on those families that can least afford it.

[86] In addition to their opposition to the LHMU's proposed classification structure the Associations also oppose the claim for a first aid allowance of $10.28 per week. It is argued that this claim fails to recognise that the administration of first aid to children is fundamental to the task of caring for them. It is an inherent requirement of these positions and hence an additional allowance is not justified.

[87] The Associations also propose that there should be an "exemption" level of 130 per cent inserted into the Victorian Award for directors. It is said that this would apply to directors who are in a realistic salaried position and maintain the award entitlements to all leave and general benefits with the exception of the Hours of work, Overtime and Public holidays clauses. Such a provision would properly recognise those employees who are in a genuine managerial role.

[88] We note that the Associations do not adopt a position of total opposition to the claim. They propose that if the Commission were to make findings based on the evidence, information and submissions presented, then the parties should be directed to participate in a conciliation process with a view to arriving at a final position acceptable to all parties.

[89] The Associations' alternative proposal in Annexure 7 is for the C10 (100%) equivalent to be set as the rate for an employee who holds either a two year Diploma or a Certificate III with two years' experience. The Certificate III employee would gain the first year's experience whilst undertaking the training for the qualification and would then complete a further twelve months of experience on the job. The Diploma employee could be either an employee who completes the Diploma full time and then enters the industry, or one who firstly undertakes the Certificate III and then completes a further twelve months of study to gain the Diploma. This is the key classification in the Victorian Award.

[90] Finally, in relation to the Victorian Local Authorities matter,²⁹ the Associations contend that no reliance should be placed on either the agreed facts and submissions in the case or upon the decision of the 1990 Full Bench. The matter was essentially put to the Commission on a consent basis. The 1990 Full Bench did not, and was not required to, examine the work value of the employees concerned. The Bench simply accepted the position put by the parties that the work value criteria to be applied to child care workers would be the same as that which applied to other employees of Local Authorities.

2.2.3 ACT Employers and the Victorian Private Child Care Association

[91] The ACT Employers and the Victorian Private Child Care Association made a joint submission in respect of the LHMU's proposed amendments to the Victorian Award. The submission was in broadly the same terms as that advanced by the ACT Employers in relation to the changes proposed in the ACT Award. It is argued that the structure proposed by the LHMU for insertion into the Victorian Award contains similar deficiencies to those apparent in their proposed ACT structure, namely:

• classification levels are for the most part indistinct and do not provide for clearly defined skill levels;
• classification at a particular level merely on the basis of enrolling in a course is inappropriate;
• classification on the basis of the classification level of the employee being supervised is not responsive to the work being undertaken;
• the application seeks to insert a degree qualification without a definition;
• new internal relativities proposed cannot be justified on the evidence presented;
• the proposed alignment with the C10 metal engineering tradesperson is incorrect; and
• there is no clear evidence that the standards determined by the 1990 Full Bench, as they have been applied in Victoria in 1992, should be departed from.

[92] The ACT Employers and the Victorian Private Child Care Association propose an alternate structure for the Victorian Award which is similar to that proposed by the ACT Employers in respect of the ACT Award, except for variations arising from differences in licensing requirements.

[93] It is submitted that a consistent outcome should be arrived at to determine the wages of child care workers, recognising not only minimum qualification requirements but also responsibility and the level of work being undertaken.

2.2.4 Kindergarten Parents Victoria

[94] Kindergarten Parents Victoria (KPV) supports a proper review of the current classification structure, having regard to the work value principle and the WR Act.

[95] KPV opposes the claim for a first aid allowance as this work is an inherent component of the qualifications of a child care worker's Diploma and a child care worker's employment conditions. Nor does KPV support the title Early Years Development Worker.

[96] It is submitted that any wage increases flowing from the Commission's decision in this matter should be prospective and phased-in in four equal instalments over a twelve month period.

2.2.5 Victorian Children's Services Association

[97] The Victorian Children's Services Association (VCSA) supports a proper work value assessment of the current classification structure.

[98] In respect of the LHMU's claim the VCSA:

• supports the inclusion of a support worker classification;
• opposes the title "Early Years Development Worker";
• agrees that qualified staff should have a term to distinguish them from unqualified staff, but this could be done by simply adding the word "Qualified" or "Diploma";
• suggests that the proposed Early Years Development Worker Level 3 and Assistant Director should include a provision for a worker who coordinates a small occasional care centre; and
• suggests that a monitoring process would be helpful after this matter is concluded.

[99] Any wage increases flowing from the Commission's decision in this matter should be phased-in to allow employers to absorb the increase in centres.

2.2.6 Victorian Employers Chamber of Commerce and Industry (VECCI)

[100] VECCI neither supports nor opposes the LHMU's application.

[101] If the Commission decides to grant an increase then:

• it should have a prospective operative date coinciding with the start of the "school" year in 2005; and
• it should be phased-in.

2.2.7 LHMU Submissions in reply

[102] In response to the Association's submissions with respect to the Certificate III the union contends that the evidence establishes that the qualification is widespread and employees who complete it are required to undertake extra duties and exercise a higher level of skill than employees without the qualification.

[103] In support of its contention that the qualifications of Certificate III and Diploma are widely held in the industry the union relies on the following table extracted from the 2002 Census of Child Care Services.

Table 9
Qualifications Held by Employees in Long Day Care: Vic and ACT 2002

[104] It is submitted that Table 9 shows that in Victoria over 35 per cent of persons employed in the long day care sector have completed a course of study equivalent to the AQF Certificate III in Children's Services. In the ACT 34 per cent had completed the same qualifications. Over 44 per cent of employees in Victoria have a qualification equivalent to the AQF Diploma, and 36 per cent of employees in the ACT. The union contends that a significant proportion of employees who hold those qualifications have received little or no recognition for them.

[105] The LHMU rejects the criticisms made by the Employers generally in relation to the union's proposed classification structure. Contrary to the Employers' contention, advancement through the proposed structure is not based on an employee having merely enrolled in a particular course of study. Advancement from level CC3 and above is based solely on the attainment of qualifications and/or the requirement of the employer for the employee to undertake higher duties. The amended application has removed the capacity for employees who have attained AQF Diploma to progress to CC4. Progression to this level is based on completion of an AQF Certificate IV, and/or for employees who are responsible for programming for an individual child or small group.

[106] The comparative document appended to the Associations' submission includes an alternative pay rate proposal. The LHMU opposes this alternative proposal as no descriptors are provided and there is no appropriate comparison with the Metal Industry Award and no explanation as to why the particular relativities were selected.

3. Relevant Award History

[107] The starting point for our consideration of these applications is the 1990 Full Bench decision.³⁰ The background to the Full Bench proceedings may be shortly stated.

[108] On 31 August 1988 the Child Care Industry (Australian Capital Territory) Award 1985³¹ (the 1985 ACT Award) and the Child Care Industry (Northern Territory) Award 1986³² were considered in the Anomalies Conference. At that time the Australian Council of Trade Unions (the ACTU) and the Federated Miscellaneous Workers Union (the FMWU) raised what were said to be numerous deficiencies in the awards. The President directed Commissioner Laing to investigate and report on the matters that had been discussed at that conference. The Commissioner subsequently conducted an inquiry and published his report on 11 July 1990 at which time the President constituted a Full Bench pursuant to s.108 of the then Industrial Relations Act 1988 (Cth).

[109] While the proceedings before the 1990 Full Bench were only directly relevant to the two federal awards identified, the ACTU and FMWU took the view that the issues involved were fundamental to the child care industry generally.

[110] The 1990 Full Bench concluded that the awards were inadequate, particularly in relation to salary rates and classification structure. In this regard the 1990 Full Bench stated that it was satisfied that:

• existing award rates have not been adequately established in the past;
• an inequity exists as a result of child care workers doing similar work but being paid different rates;
• there have been significant changes in the child care industry, including the training of child care workers, with commensurate enhancement of their skills and the level of responsibility expected of them; and
• this is an industry for which the awards should provide a proper career structure.

[111] In relation to the 1985 ACT Award the 1990 Full Bench gave effect to an agreement between the ACTU/FMWU and the Canberra Association of Community Based Children's Services (the Canberra Association). The Canberra Association represented the employers of most child care workers in the ACT. The agreement was described in the 1990 Full Bench's decision in the following terms:

"...the agreement generally recognised as appropriate a comparison of the Child Care Worker Level 3 after one year's service with the Engineering Tradesperson Level 1 in the Metal Industry Award. It was not suggested, of course, that these classifications could be "compared" in the conventional sense, but by reference to the training requirements for each classification, a guide was found to the level of competence which must be attained. Both classes of worker must hold a certificate which is awarded after completion of a course provided by a College of Technical and Further Education."³³

[112] The 1990 Full Bench also gave consideration to the evolving national classification system for TAFE courses and described the child care courses in existence at that time in the following terms:

"A national core curriculum has been developed for courses in child care studies, although there is some variation in the States and Territories in the description of the course. In the ACT, for example, there is a one year course leading to the award of a certificate in child care practices; this trains personnel for employment as child care assistants in children's services and is designed to cover the practical application of care techniques and the development of attitudes, skills and knowledge appropriate for the care and education of young children. A person holding the certificate and having had one year's work experience in child care is accepted for entrance to the course leading to the Associate Diploma of Social Science in Child Care. This is a two year, full-time course, or equivalent in part-time studies."³⁴

And at pages 5 to 6:

"The regulations in both Territories require that persons who will occupy the positions contemplated by the classification Child Care Worker Level 3 (after one year's service), shall hold a tertiary qualification awarded after two years full-time study or commensurate part-time study. Equivalent qualifications may be approved. As a result, only those who have completed the course leading to the Associate Diploma, or those who hold the child care certificate, will be eligible for appointment to a position in the classification Child Care Worker Level 3 (after one year's service). Although the child care certificate course is no longer available, the evidence showed that there are many employees who gained the certificate after two years' full-time study or its equivalent. Appointment to Level 3 positions and higher will depend not only on attaining the relevant academic qualification, but also on being required to perform the duties prescribed for a position at the level in the classification structure at annexure A."³⁵

[113] The Confederation of ACT Industry (the Confederation) concurred generally with the structure proposed by the ACTU/FMWU and the Canberra Association, but held a different view as to the appropriate base rate. The 1990 Full Bench was not persuaded by the Confederation's submissions in this regard.

[114] On the basis of the agreed 100 per cent relativity between the Child Care Worker Level 3 after one year's service and the Engineering Tradesperson Level 1 (now the C10 level in the Metal Industry Award) a nine level classification structure (plus increments) was developed. The holder of a TAFE Advanced Certificate or Associate Diploma in Child Care was set at 110 per cent, with two annual service increments. The Director Level 1 was set at 145 per cent of the tradesperson rate (with Level 2 at 157 per cent and Level 3 at 165 per cent).

[115] A comparison between the previous classification structure and the structure approved by the 1990 Full Bench is set out below:

Table 10

[116] The 1990 Full Bench adopted the agreed classification structure and concluded at page 8:

"...the classification structure in annexure A and the rates of pay set out above are an appropriate outcome of the exercise which the parties have undertaken to review conditions of employment and to provide proper levels of remuneration for the workers in the industry. We approve the classifications and the wage levels."

[117] As we have mentioned, the key classification in the new structure was the Child Care Worker Level 3. After one year's service a worker at this level had a 100 per cent relativity to the base trade level in the Metal Industry Award. It is this relativity which is at the heart of the contentions in the proceedings before us. The classification definition of Child Care Worker Level 3, as determined by the 1990 Full Bench, is in the following terms:

"This person would hold a TAFE child care certificate or equivalent qualification which is recognised under the Act authorising the worker to be in charge of children aged two years or more.

Duties will include the following:

• work as the person in charge of a group of children in the age range two to twelve years;
• develop, plan, implement and evaluate in conjunction with the Director a developmental program;
• supervise unqualified workers caring for the group of children;
• liaise with parents;
• ensure a safe environment is provided;
• ensure that records are maintained and are up to date concerning each child in their care;
• develop, implement and evaluate daily routines;
• be responsible to the Director for the assessment of students on placement;
• ensure the centre or service's policies are adhered to.

A Child Care Worker Level 3 shall also include a Field Worker who supervises family day care providers and who does not hold formal qualifications."³⁶

[118] In the 1990 proceedings the parties had agreed that a number of matters would be reserved for further negotiation and, if necessary, arbitration. One of these matters concerned the rates of pay applicable to employees holding three and four year qualifications. In 1998 the LHMU made application to the Commission to vary the ACT Award to address this matter.

[119] The 1998 application did not seek to alter the rates for child care worker levels 1 to 3. Rather, the LHMU proposed the inclusion of four new salary levels in the classifications of child care worker levels 4 and 5, and in the director levels 1, 2 and 3. The new rates were to apply where an employee holds, and is required to use, advanced qualifications in early childhood education or child care management.

[120] The application was advanced on the basis that the award should be varied to take account of changes which have occurred in the child care industry in the ACT since 1990. It was generally accepted that many employees of child care centres held qualifications which were in excess of, or described differently from, those recognised in classifications in the ACT Award. The employers did not oppose the variation sought.

[121] The Independent Education Union of Australia intervened in the proceedings and contended that the Commission should make an in principle decision in relation to the rates that should apply to teachers in child care centres, and direct the parties to confer on the appropriate scale to be included in the award.

[122] Commissioner Deegan determined the application in the following terms:

"It is clear that all parties, including the intervenors, agree that the award should be varied to take account of changes which have occurred in the child care industry in the ACT since 1990. Many employees of child care centres hold qualifications in excess of, or described differently from, those currently recognised in classifications in the award.

The matter of rates of pay for employees with three or four years of relevant training was `leave reserved' at the time the award was made in 1990. In light of this fact I do not accept the argument of the IEU that the Commission is being asked to set a new award safety net in this award.

In setting new rates for employees with qualifications in excess of those already recognised by the award the Commission is continuing the award making process commenced in 1990, and taking account of changes which have occurred in the industry since that time.

I am satisfied it is open to the Commission under the legislation (s.113 and s.89A) and the current Principles to set additional rates for employees who have trained for periods in excess of the two years currently prescribed. I am also satisfied that the rates proposed are appropriate for employees who have completed advanced training/studies in the child care field. I am not convinced, however, that the rates are necessarily appropriate for employees holding recognised teaching qualifications and experience.

The application before the Commission does not alter the rates for child care workers levels 1 to 3. What is proposed is the inclusion of four new salary levels in each of the child care worker 4 and 5 classifications and the Director Levels 1, 2 and 3 classifications. In addition, it is proposed to provide a staggered transition to the new salary levels with an initial increase on 1 September 1998 and a further increase on 1 March 1999."³⁷

and at page 15:

"The evidence before me supports the view that the work performed by a teacher employed as such in a child care centre is little different to that of a teacher in a government or independent pre-school. I am unable to conclude, therefore, on the evidence before me that the proposed rates for employees holding three and four year trained qualifications in early childhood education are appropriate for inclusion in the award.

I am prepared to include the new classifications and rates so far as they relate to employees holding advanced qualifications in child care management but refuse the application so far as it relates to persons holding qualifications in early childhood education."

[123] For present purposes it is also relevant to note that in the course of her decision the Commissioner made the following observations:

"The LHMU stressed that the classification structure that was relevant to meeting the needs of child care centres had yet to be determined but that it was essential that the immediate problem, that of appropriate recognition and remuneration for qualifications and skills not currently recognised or remunerated in the award, should be resolved. ...

The LHMU reiterated that the variation was sought on an interim basis. The LHMU had agreed with the employers, in order to obtain employer agreement to the variation, that the classification structure should be reviewed after three months and again after six months."³⁸

[124] There is no material before us to suggest that the contemplated review took place.

[125] The rates of pay and classification structure in the ACT Award, as varied by Commissioner Deegan's 1998 decision, have subsequently been varied to reflect the 1999, 2000, 2001, 2002, 2003 and 2004 safety net review decisions.³⁹ The current classification structure and associated definitions is set out at annexure 1.

[126] The 1990 Full Bench decision was also influential in the determination of the classification structure and wages rates in the Victorian Award. In 1992 the Industrial Relations Commission of Victoria (the IRCV) in Full Session reviewed the Victorian rates of pay for child care workers covered by the Mothercraft Nurses Award and the Day Child Care Workers Award⁴⁰. Essentially the Victorian Branch of the LHMU proposed the insertion of a classification structure which departed from the outcome of the 1990 Full Bench decision.

[127] The LHMU contended that it was unfair that a person holding a relevant Advanced Certificate or an Associate Diploma from a TAFE institution receives higher wage rates under the Metal Industry Award than a person holding a relevant Associate Diploma or Advanced Certificate from a TAFE institution under the two Federal child care awards. It sought to rectify the difference in rates in the Victorian proceedings.

[128] The IRCV rejected the Union's claim, in the following terms:

"... The Commission holds the view that the Victorian child care awards, as far as is practical, must reflect the standards established in the two Federal Awards. If the unions, for whatever reason, are dissatisfied with the outcome of the Federal test case, the onus rests with the unions to seek changes to the Federal awards. ..."⁴¹

[129] The Victorian Full Bench also concluded at pages 9 to 10:

"In relation to the Day Child Care Workers Award, the award currently provides for `Child Care Worker Untrained' and `Child Care Worker Trained' in a similar manner to the Federal awards. The next level, Children's Services Officer, is defined as a person who holds an Associate Diploma in Arts (Child Care). Progression to this level in the current award therefore requires the completion of the Associate Diploma. The rates of pay for the Children's Services Officer closely match the sum of the wage rates and pre-school allowance of the mothercraft nurse. In fact, historically the Children's Services Officer wage rates have tended to be aligned with the Mothercraft Nurses Award.

...

The Commission, in order to adopt as far as practical the Federal award standards, has concluded that there is a need to group mothercraft nurses in the manner outlined in the unions' claim. Once this is done, it is possible to equate both mothercraft nurses and Children's Services Officers to equivalent levels in the Federal awards, having regard to the work carried out. Persons holding an Associate Diploma or Advanced Certificate and doing the work described in Level IV of the Federal award should, in our view, receive wage rates in line with the Federal award. ...

The test case decision did not establish wage rates for three year trained child care workers. This matter is reserved."⁴²

[130] The same classification structure and wage rates were subsequently adopted by the Commission in making the Children's Services (Victoria) Award 1995⁴³. This award was, in practical terms, a combination of two previous IRCV awards - the Day Childcare Workers' Award and the Mothercraft Nurses Award.

[131] It is also relevant to note that the ACT and Victorian Awards have been reviewed as part of the award simplification process. In that context Item 51(4) of the Workplace Relations and Other Legislation Amendment Act 1996 (Cth) (the WROLA Act) states:

"If, immediately before the end of the interim period, the award provided for rates of pay that, in the opinion of the Commission:

(a) were not operating as minimum rates of pay; or

(b) were made on the basis that they were not intended to operate as minimum rates;

the Commission may vary the award so that it provides for minimum rates of pay consistent with sections 88A and 88B of the Principal Act and the limitation on the Commission's power in subsection 89A(3) of that Act."

[132] To give effect to this statutory requirement, the Full Bench in the Paid Rates Review decision formulated Principles including:⁴⁴

"1. Awards requiring review under item 51(4) will be:

(a) awards containing rates which have not been adjusted in accordance with the minimum rates adjustment principle in the August 1989 National Wage Case decision; and

(b) awards containing rates which have been adjusted in accordance with the minimum rates adjustment principle in the August 1989 National Wage Case decision but which have been varied since the adjustment other than for safety net increases or pursuant to the work value change principle.

2. The rates in the award under review should be examined to ascertain whether they equate to rates in other awards which have been adjusted in accordance with the August 1989 approach with particular reference to the current rates for the relevant classifications in the Metal, Engineering and Associated Industries Award, 1998 - Part 1 [Print Q2527]; where the rates do not equate they will require conversion in accordance with these principles."

[133] In his decision dealing with the review of the ACT Award Commissioner Hingley said:

"[4] On the materials and submissions put before me in proceedings of 26 July 1999 and in writing (correspondence received from Australian Liquor, Hospitality and Miscellaneous Workers Union dated 10 March 2000), I am satisfied that the rates contained in this award are minimum rates and not requiring review under Item 51(4).

[5] The parties appearing in this matter have lodged with the Commission by consent a new clause 5.1.5 Incremental Progression, which I approve and will include as part of this process. Accordingly when the award is so varied it will contain no incremental payments as referred to in the Paid Rates decision (p.16) as inappropriate for inclusion."⁴⁵

[134] In relation to the Victorian Award the Commissioner determined:

"[4] This award is historically a paid rates award. On 20 July 1999 the Australian Liquor, Hospitality and Miscellaneous Workers Union made application pursuant to s.113 of the Workplace Relations Act (the WR Act) to vary the award in respect of the classification structure and a process for progression within a classification with consequential relationships to junior rates. The application is a consent matter.

[5] I am satisfied on the submissions and material of the parties put before me that the variations sought will provide rates which are properly set minima and consistent with the purpose and intent of Item 51(4) of the WROLA Act and that the award contains no incremental payments as referred to in the Paid Rates Review decision (p.16) as inappropriate for inclusion.

[6] The application is accordingly approved. The variations will operate from the first full pay period commencing on or after 21 July 1999 and shall remain in force for a period of 12 months."⁴⁶

[135] The final decision we wish to mention relates to an application by the Australian Municipal, Administrative, Clerical and Services Union (ASU) for significant increases in rates of pay, the introduction of a new wage structure and additional allowances for child care workers employed under the Victorian Local Authorities Award 2001.⁴⁷ The Full Bench in that matter also had before it an amended application for orders for equal remuneration pursuant to s.170BC of the WR Act.

[136] Following conciliation the parties reached agreement in respect of the applications. The main feature of the agreement was a significant realignment of the relativities of the child care classifications in the award. Child care workers' rates of pay were integrated into the classification and pay structures which apply to local government employees generally. Prior to the agreement being reached, the classification structure and rates of pay of child care workers were separate because they had been transplanted from a previous award of the IRCV into the Federal award.

[137] The effect of the agreement was to insert the child care employees rates into the banded structure at a level which reflects properly fixed internal and external relativities.

[138] The Full Bench granted the application. It concluded:

"[26] No party or intervener suggested that the banded structure in the 2001 award, which applies to many thousands of employees, is not based on proper work value principles. The banded structure was introduced with the making of the 1991 award. The structure was developed as a result of the application of the structural efficiency and minimum rates adjustment principles provided for in the Commission's National Wage Case August 1989 Decision. Some of the history of the proceedings which led to the making of the award is set out in decisions of that time: Re Local Governing Authorities, Employees (Victoria) Award 1984. The structure was approved by the Commission, subject to some modifications, when the 1991 award was simplified in 2001.

[27] We accept the parties' submission that the maintenance of child care classifications separate from the banded structure is anomalous and that the position should be addressed by including child care workers in the structure. To assist in the application of that structure the award prescribes in Appendix A Part A the qualifications and the work value criteria that apply to each band as well as the criteria for advancement to the higher levels within the band. The parties have agreed on the position at which each of the child care worker classifications should be included in the structure and propose that the Appendix be amended accordingly. On the material before us the agreement properly applies the provisions of the Appendix and provides appropriate internal relativities. ...

[28] Finally, the work value criteria which will be applied in the classification of child care workers into the various bands and to the levels within the bands, are the same as the criteria which apply to other employees of local authorities. In that sense child care workers will be in the same position as the other employees in that their place in the structure will depend upon their qualifications and the employer's application of the work value criteria to the work the employees actually perform."⁴⁸

[139] The decision established the following key relativities:

• The Certificate III and IV Child Care Worker Level 2, was placed in Band 3 which is 100% at the base rate.
• Child Care Worker Level 3 with a 2 year Diploma, was placed in Band 4 which is 111% (compressed relativities to reflect flat rate safety net adjustments).
• Child Care Worker Level 3 with a 3 year Degree was placed in Band 5 which is 123% (compressed relativities to reflect flat rate safety net adjustments).
• The base director level was placed in Band 6 which is 145 per cent, increasing to 156 per cent for directors of centres with 26 to 44 children. Directors of centres with 45 or more children are also in Band 6 but are paid in the range of 151 to 156 per cent (compressed relativities to reflect flat rate safety net adjustments). Directors with responsibility for more than one centre or directors with responsibilities beyond those of Band 6 were placed in Band 7 with a relativity in the range 161 to 177 per cent.

[140] In the proceedings before us the LHMU agreed with the submission advanced by the Employers that:

"No reliance can be placed upon this decision as the Bench did not, and was not, required to examine the work value of the employees involved."⁴⁹

[141] However, the LHMU submitted that as with the 1990 Full Bench decision "both cases should be used as a `guide' in these two matters"⁵⁰.

4. The Proper Fixation of Minimum Rates

4.1 General

[142] Section 88B(1) provides that the Commission must perform its functions under Part VI of the WR Act in a way that furthers the objects of the WR Act and in particular the objects of Part VI. One of the objects of Part VI is to ensure that the awards of the Commission act as a safety net of fair minimum wages and conditions of employment. Further, one of the objects of the WR Act is to provide the means:

"... to ensure the maintenance of an effective award safety net of fair and enforceable minimum wages and conditions of employment".⁵¹ (emphasis added)

[143] Similarly, s.88B(2) provides that in performing its functions under Part VI of the WR Act the Commission must ensure that "a safety net of fair minimum wages and conditions of employment is established and maintained". Further, s.88B(3)(a) provides that in performing such functions the Commission must have regard to a number of matters, including: "... the need for any alterations to wage relativities between awards to be based on skill, responsibility and the conditions under which the work is performed". This requirement broadly reflects what have traditionally been regarded as work value considerations.

[144] The applications before us require a determination of whether the wage rates in the relevant awards have been properly fixed. The Commission's traditional approach to the determination of such matters is relevant to our deliberation of these applications.

[145] Classification structures and rates of pay in many awards were subject to a fundamental reassessment as a result of the minimum rates adjustment (MRA) process established by the August 1989 National Wage Case decision.⁵² That process was designed to facilitate award reform by providing a clear understanding of award relationships one to another.

[146] In the February 1989 Review decision the Commission concluded that:

• many award classification structures did not meet the needs of industry or employees;
• where necessary the number of classifications in an award should be reduced to provide clearly defined skill levels, broadbanding of functions and multi-skilling; and
• properly designed and accredited skill training processes were essential to support the structural efficiency principle and its aims.

[147] The Commission emphasised that the successful implementation of these measures would be inhibited by irregularities in award rates of pay. These irregularities had been exacerbated by the attitudes of the parties to awards. As the Commission pointed out:

"The result is there exist in federal awards widespread examples of the prescription of different rates of pay for employees performing the same work but this is only part of the problem. For too long there have existed inequitable relationships among various classifications of employees. That this situation exists can be traced to features of the industrial relations system such as different attitudes adopted in relation to the adjustment of minimum rates and paid rates awards; different attitudes taken to the inclusion of overaward elements in awards, be they minimum rates or paid rates awards; the inclusion of supplementary payments in some awards and not others; and the different attitudes taken to consent arrangements and arbitrated awards.

There is a further dimension to the problem. Employers have introduced and will continue to introduce wage relativities both as between employees employed under the same award and employees covered by other awards in a particular establishment. These relativities can vary from workplace to workplace and may bear no resemblance to the relativities set in the award or awards concerned."⁵³

[148] The Commission noted that this situation had inevitably caused feelings of injustice leading to industrial disputation and flow-on settlements. It concluded that the situation had to be corrected otherwise continuing instability within and between awards would seriously reduce the effect of moves to modernise those awards. Consequently it determined that:

"...minimum rates awards will be reviewed to ensure that classification rates and supplementary payments in an award bear a proper relationship to classification rates and supplementary payments in other minimum rates awards."⁵⁴

[149] The translation of the principle of ensuring stable relationships between awards and their relevance to industry was considered in the August 1989 National Wage Case decision. In the course of its decision the Commission elaborated on what had been said in the February 1989 Review decision about the requirement to review relationships between classification rates and supplementary payments in minimum rates, stating:

"...we have decided that the minimum classification rate to be established over time for a metal industry tradesperson and a building industry tradesperson should be $356.30 per week with a $50.70 per week supplementary payment. The minimum classification rate of $356.30 per week would reflect the final effect of the structural efficiency adjustment determined by this decision.

Minimum classification rates and supplementary payments for other classifications throughout awards should be set in individual cases in relation to these rates on the basis of relative skill, responsibility and the conditions under which the particular work is normally performed. The Commission will only approve relativities in a particular award when satisfied that they are consistent with the rates and relativities fixed for comparable classifications in other awards. Before that requirement can be satisfied clear definitions will have to be established."⁵⁵

[150] In the August 1989 National Wage Case decision the Commission also stated that following the completion of the MRA process it was envisaged that minimum classification rates would not alter their relative position one to another unless warranted on work value grounds.

[151] Principle 3 of the current Statement of Principles provides that increases under previous National Wage Case decisions, such as minimum rates adjustments, may be awarded in accordance with the relevant principles in those decisions. Further, an award may be varied pursuant to a previous National Wage Case decision without the application being regarded as a claim for wages and/or conditions above the award safety net.

[152] In our view the establishment of properly fixed minimum rates in awards is clearly consistent with the Commission's obligations under the WR Act. In particular, s.88B(3)(a) is intended to preserve the structure of stable and equitable relativities between awards established by the MRA process which commenced as a result of the August 1989 National Wage Case decision⁵⁶.

[153] In the Paid Rates Review decision⁵⁷ the Commission observed that for an award to contain properly fixed minimum rates the rates of pay must bear an appropriate work value relationship to rates for work covered by a minimum rates award which has completed the MRA process. Further, the Full Bench concluded that without a common basis for the fixation and variation of minimum rates awards it is not possible to maintain stable relativities between such awards.

[154] The continued relevance of the MRA process was confirmed by the Paid Rates Review Full Bench, in these terms:

"The MRA principle was designed to establish a consistent pattern of minimum rates in awards covering similar work thereby removing inequities and providing a stable foundation for enterprise bargaining. That objective is as important now, perhaps even more important, than it was in 1989."⁵⁸

[155] In the context of the matter before us, the principles established in the Paid Rates Review decision mandate a three step process for the determination of properly fixed minimum rates:

1. The key classification in the relevant award is to be fixed by reference to appropriate key classifications in awards which have been adjusted in accordance with the MRA process with particular reference to the current rates for the relevant classifications in the Metal Industry Award. In this regard the relationship between the key classification and the Engineering Tradesperson Level 1 (the C10 level) is the starting point.

2. Once the key classification rate has been properly fixed, the other rates in the award are set by applying the internal award relativities which have been established, agreed or maintained.

3. If the existing rates are too low they should be increased so that they are properly fixed minima.

[156] Central to the LHMU's case with respect to the ACT Award is the proposition that the Metal Industry Award C10 comparator in the ACT Award should be set at the Child Care Worker Level 3 on commencement classification (rather than CCW3 after one year, as is presently the case) and that the rate for the AQF Diploma level should be set at 130 per cent of the trade rate. We deal with the merit of this proposition later in our decision. It suffices to note here that the proposition advanced is, in part, misconceived.

[157] The Diploma in Engineering level in the Metal Industry Award is at level C5. The wage rate at this level was originally set at 130 per cent of the C10 trade rate. However the relativity between the C5 and C10 levels has been compressed over time as a consequence of the awarding of flat dollar safety net adjustments. The C5 rate is currently $684.40 which is 122 per cent of the C10 rate of $561.20.

[158] The last occasion on which the Commission awarded a percentage adjustment to award rates generally was in the April 1991 National Wage Case decision⁵⁹. Since that time there have been eleven adjustments to award rates of pay generally which have been in flat money amounts. Relativities have been compressed further by the tapering of the amount of the increase at the higher levels in 1998, 1999 and 2003. The Commission has remarked on this compression of relativities on a number of occasions⁶⁰.

[159] If the LHMU's submission was acceded to then employees classified at the AQF Diploma level in the child care awards would be entitled to $729.60 per week (i.e. 130 per cent of the C10 rate of $561.20), which is $45.20 per week more than an employee at the AQF Diploma level in the Metal Industry Award. Clearly such a proposition is unsustainable. It flies in the face of the purpose of the MRA process which was to establish a consistent pattern of minimum rates in awards.

[160] In effect the LHMU seeks to restore the 130 per cent relativity at the AQF Diploma level. As we have noted, this relativity has been eroded as a consequence of flat dollar safety net adjustments. It would be contrary to principle to restore this relativity in the manner proposed by the union. The compression of relativities is not sufficient to justify a work value increase⁶¹ and arguments based on the maintenance of pre-existing relativities are irrelevant to the assessment of work value⁶². As the Commission observed in the May 2002 Safety Net Review - Wages decision:

"We wish to make it clear that, as the Commission has pointed out on a number of occasions, changes in relativities brought about by safety net adjustments do not provide a basis for increases or changes in relativities in future safety net reviews. We also endorse the following passage from the Third Safety Net Adjustment and Section 150A Review Decision October 1995 [(1995) 61 IR 236]:

`We reiterate what we said in the September 1994 Review decision; namely, that the Commission will not grant applications to restore pre-existing relativities on the basis that such relativities have been compressed by the granting of flat dollar arbitrated safety net adjustments [Print L5300, p.34].'"⁶³

[161] How then is it appropriate to determine properly fixed rates for the Certificate III and AQF Diploma level in the child care awards?

[162] If we accept that the rates at the AQF Diploma level should be linked to the C5 level in the Metal Industry Award, and that it is appropriate to have a nexus between CCW level 3 on commencement and the C10 level, then a method of determining a properly fixed rate is that which was applied in the Clerks (Breweries) Consolidated Award, 1985 case⁶⁴. In that matter the Commission adopted the following approach:

1. The key classification (Grade 2 Administrative Clerk) was aligned with a classification level in a properly fixed minimum rates award (Grade 3 in the Clerical and Administrative (Victoria) Award; which is, coincidentally, set at the C10 rate).

2. Having fixed the minimum rate for the key classification the other rates in the award are fixed having regard to established internal award relativities. The existing classification structure was introduced into the Clerks (Breweries) Consolidated Award 1985⁶⁵ in November 1991. At that time the internal relativities were:

Table 11

[163] The key classification (Grade 2) is the 100 per cent relativity point. The other relativities are determined by dividing the rate of pay at the particular grade by the then rate of pay at grade 2. For example the rate for a grade 1 in November 1991 was $414.80 and grade 2 was $440. Hence the grade 1 relativity is $414.70 divided by $440, or 94 per cent.

[164] Once the internal relativities are established, the properly fixed rates - as at November 1991 - can be determined. In November 1991 the tradespersons rate was $417.20. Using grade 2 as the 100 per cent rate the properly fixed minimum rates are calculated on the basis set out below:

Table 12
November 1991

[165] These minimum rates are then increased by adding all of the subsequent safety net adjustments. The resultant rates are the current properly fixed minimum rate.

[166] The safety net adjustments over this period are set out below:

Table 13

Date	Adjustment
September 199466:	$24 (three $8 adjustments)
April 199767:	$10
April 199868:	$14 in award rates up to and including $550
	$12 in award rates above $550 up to and including $700
	$10 in award rates above $700
April 199969:	$12 in award rates up to and including $510
	$10 in award rates above $510
May 200070:	$15
May 200171:	$13 in award rates up to and including $490
	$15 in award rates above $490 and up to and including $590
	$17 in award rates above $590
May 200272:	$18
May 200373:	$17 in award rates up to and including $731.80
	$15 in award rates above $731.80
May 200474:	$19

[167] Of course it is not always necessary, or appropriate, to go back to November 1991 as was done in the Clerks (Breweries) Award case. It depends on when the key classification was inserted into the relevant award.

[168] In the ACT Award the level which has a Diploma in Children's Services or equivalent as a qualification requirement is Child Care Worker Level 4. In its current form this classification was inserted into the ACT Award by Commissioner Deegan as a consequence of her decision of 13 August 1998⁷⁵. The first step is to calculate the internal award relativities at that time. For this purpose we have `split' the current award structure into two parts: Certificate III and below; and Diploma and above. Hence there are two 100 per cent relativity points - one at CCW3 on commencement (for AQF3) and the other at CCW4, on commencement (for AQF4). An alternative method would be to set one 100 per cent rate, at the Diploma level. The difficulty with this approach is that the resultant properly fixed rate at the AQF3 level is significantly higher than the C10 rate in the Metal Industry Award.

[169] The rate of pay prescribed for the C10 and C5 classifications in the Metal Industry Award at this time were $465.20 and $588.40 respectively.⁷⁶ Applying the approach in the Clerks (Breweries) Award decision the properly fixed minimum rates - as at August 1998 - can be determined based on the internal award relativities at that time.

[170] These minimum rates are then increased by adding all of the subsequent safety net adjustments. The resultant rates are the current properly fixed minimum rates, as set out below:

Table 14

[171] Hence if we accept the proposition that the C10 comparator is the Child Care Worker Level 3 on commencement and that the Child Care Worker level 4 (i.e. the AQF Diploma level) should be set at the same rate as level C5 in the Metal Industry Award, then the current rates in the ACT Award will have to be increased by between 1.2 and 14.7 per cent.

[172] A comparison of the qualifications required at particular classification levels with those in awards which have been adjusted in accordance with the MRA process is one method for establishing properly fixed minimum rates. In that context the Australian Qualifications Framework (the AQF) is relevant. We briefly describe the AQF in the next section of our decision.

4.2 The Australian Qualifications Framework (AQF)

[173] In her evidence Ms Beth Brunskill, the Executive Officer of Training for Health and Community Services Incorporated, provides an overview of the AQF. We accept Ms Brunskill's evidence in this regard and set it out, in summary form, below.

[174] The AQF had its genesis in the March 1992 report of the Employment and Skills Formation Council titled: `The Australian Vocational Certificate Training System'. The report endorsed a shift from time based to outcomes based education as reflected in its recommendation that "each certificate level to be achieved when an individual demonstrates a specified level of competence rather than after a specified level of time". The thrust of the report was to replace the then mix of State based certificates, traineeships and apprenticeships with a more coherent national framework based on industry competency standards and the Australian Standards Framework (ASF).

[175] The ASF consisted of eight levels into which the various competency standards could be aligned. The ASF became the AQF on 1 January 1995, using the same eight levels. However at this point levels 7 and 8, while still part of the descriptive framework, became less of a focus for the vocational training sector due to their alignment with the higher education sector.

[176] The table below sets out the current descriptors for levels 1 to 6⁷⁷:

Table 15

[177] It is important to recognise that the AQF is competency based. Under the AQF structure a "qualification" is defined as:

"... formal qualification, issued by a relevant approved body, in recognition that a person has achieved learning outcomes or competencies relevant to identified individual, professional, industry or community needs."

[178] In the Metal Industry Award the qualification required for classification at the C10 trade level is a Certificate III in Engineering. This qualification falls within AQF level 3.

[179] In her evidence Ms Brunskill reviewed the various child care qualifications and aligned the Certificate III in Children's Services with the Certificate III in Engineering on the basis that both are AQF level 3 qualifications. In particular Ms Brunskill says:

"... the demands of the various qualification levels are similar in both Industries ... one cannot compare apples with oranges, and try to say for example that the `Care for Children' unit is more or less equivalent to the `Operate Melting Furnaces' unit (both are specialisation units from the Certificate III qualifications in each Industry).

The key issue to focus on is the AQF framework. All qualifications and their associated units of competency MUST align to one of the 8 AQF levels. There is no other measuring criteria that should be necessary or entertained. If a party argues that their Industry's Certificate III is higher or better or longer (or whatever!), then it should not be a Certificate III. The process of endorsing Training Packages ensures that qualifications contained therein are set at the right AQF level."⁷⁸

[180] Ms Brunskill was cross examined in relation to this issue⁷⁹ but her evidence did not alter. The basis for her comparison was with the AQF level of each qualification rather than the actual number of competencies in each or the period of time taken to complete the course.

4.3 The AQF Certificate III and AQF Diploma levels

[181] A central feature of this case is the alignment of the Child Care Certificate III and Diploma levels in the ACT and Victorian Awards with the appropriate comparators in the Metal Industry Award.

[182] We have considered all of the evidence and submissions in respect of this issue. In our view the rate at the AQF Diploma level in the ACT and Victorian Awards should be linked to the C5 level in the Metal Industry Award. It is also appropriate that there be a nexus between the CCW level 3 on commencement classification in the ACT Award (and the Certificate III level in the Victorian Award) and the C10 level in the Metal Industry Award.

[183] In reaching this conclusion we have considered - as contended by the Employers - the conditions under which work is performed. But contrary to the Employers' submissions this consideration does not lead us to conclude that child care workers with qualifications at the same AQF level as workers under the Metal Industry Award should be paid less. If anything the nature of the work performed by child care workers and the conditions under which that work is performed suggest that they should be paid more, not less, than their Metal Industry Award counterparts.

[184] The Employers also led evidence and made submissions with respect to the number of hours of training or the number of modules in the Child Care Certificate III and Diploma. But submissions based on this material are misconceived. The AQF is competency based not time based.

[185] The issue is not how long a particular course of study takes to complete, or the number of modules it contains. Rather it is the educational outcome, the number and level of competencies attained, which determines the alignment of the qualification within the AQF.

4.4 Work value changes

[186] Principle 6 of the Statement of Principles sets out the basis upon which changes in work value may justify a change in wage rates. The principle is in the following terms:

"6. WORK VALUE CHANGES

(a) Changes in work value may arise from changes in the nature of the work, skill and responsibility required or the conditions under which work is performed. Changes in work by themselves may not lead to a change in wage rates. The strict test for an alteration in wage rates is that the change in the nature of the work should constitute such a significant net addition to work requirements as to warrant the creation of a new classification or upgrading to a higher classification.

In addition to meeting this test a party making a work value application will need to justify any change to wage relativities that might result not only within the relevant internal award structure but also against external classifications to which that structure is related. There must be no likelihood of wage leapfrogging arising out of changes in relative position.

These are the only circumstances in which rates may be altered on the ground of work value and the altered rates may be applied only to employees whose work has changed in accordance with this Principle.

(b) In applying the Work Value Changes Principle, the Commission will have regard to the need for any alterations to wage relativities between awards to be based on skill, responsibility and the conditions under which work is performed (s.88B(3)(a)).

(c) Where new or changed work justifying a higher rate is performed only from time to time by persons covered by a particular classification, or where it is performed only by some of the persons covered by the classification, such new or changed work should be compensated by a special allowance which is payable only when the new or changed work is performed by a particular employee and not by increasing the rate for the classification as a whole.

(d) The time from which work value changes in an award should be measured is the date of operation of the second structural efficiency adjustment allowable under the August 1989 National Wage Case decision (August 1989 National Wage Case) [Print H9100; (1989) 30 IR 81].

(e) Care should be exercised to ensure that changes which were or should have been taken into account in any previous work value adjustments or in a structural efficiency exercise are not included in any work evaluation under this Principle.

(f) Where the tests specified in (a) are met, an assessment will have to be made as to how that alteration should be measured in monetary terms. Such assessment will normally be based on the previous work requirements, the wage previously fixed for the work and the nature and extent of the change in work.

(g) The expression "the conditions under which the work is performed" relates to the environment in which the work is done.

(h) The Commission will guard against contrived classifications and over-classification of jobs.

(i) Any changes in the nature of the work, skill and responsibility required or the conditions under which the work is performed, taken into account in assessing an increase under any other principle of this Statement of Principles, will not be taken into account under this Principle."⁸⁰

[187] Wage fixation principles dealing with changes in work value have existed for some time and broadly speaking the current Principle 6 codifies the general principles which have emerged over time. In this context we note that in the proceedings before us the parties generally accepted a statement made by Senior Commissioner Taylor in 1968⁸¹ to the effect that the following factors were relevant to the assessment of work value:

• qualifications necessary for the job;
• training period required;
• attributes required for the performance of the work;
• responsibilities for the work, material and equipment and for the safety of the plant and other employees;
• conditions under which the work is performed such as heat, cold, dirt, wetness, noise, necessity to wear protective equipment etc;
• quality of work attributable to, and required of, the employee;
• versatility and adaptability: for example, performing a multiplicity of functions;
• skill exercised;
• acquired knowledge of plant and process;
• supervision over others or necessity to work without supervision; and
• importance of the work to the overall operations of the plant.

[188] Paragraph (a) of the current principle sets out the strict test to be satisfied in order to justify an alteration in wage rates based on changes in work value. Such changes may arise from changes in the nature of the work, skill and responsibility required or the conditions under which work is performed. The expression "conditions under which work is performed" is defined in paragraph (g) of the principle to mean the environment in which the work is done. The principle makes it clear that it is only by satisfying the significant net addition test that wages may be altered on the ground of work value.

[189] The principle makes it clear that changes in work, by themselves, may not lead to an increase in wages. In State Electricity Commission of Victoria v The Federated Ironworkers' Association of Australia⁸², a Full Bench of the Commission expressed this limitation in the following terms:

"In all categories of work except perhaps the most simple, changes become evident with time. It is in the nature of things that new methods of doing the same thing evolve with time, and that skills which qualify a person for a particular category of work may become fully tested, or in some cases the work may thereby be made easier. However it is essential that such changes are not mistaken for genuine work value change."⁸³

[190] Previous decisions of the Commission suggest that a range of factors may, depending on the circumstances, be relevant to the assessment of whether or not the changes in question constitute the required "significant net addition to work requirements". The following considerations are relevant in this regard:

• Rapidly changing technology, dramatic or unanticipated changes which result in a need for new skills and/or increased responsibility may justify a wage increase on work value grounds.⁸⁴ But progressive or evolutionary change is insufficient.⁸⁵
• An increase in the skills, knowledge or other expertise required to adequately undertake the duties concerned demonstrates an increase in work value.⁸⁶
• The mere introduction of a statutory requirement to hold a certificate of competency does not of itself constitute a significant net addition to work requirements. It must be demonstrated that there has been some change in the work itself or in the skills and/or responsibility required.⁸⁷ However, where additional training is required to become certified and hence to fulfil a statutory requirement a wage increase may be warranted.⁸⁸
• A requirement to exercise care and caution is, of itself, insufficient to warrant a work value increase.⁸⁹ But an increase in the level of responsibility required to be exercised may warrant a wage increase on work value grounds.⁹⁰ Such a change may be demonstrated by a requirement to work with less supervision.⁹¹
• The requirement to exercise a quality control function may constitute a significant net addition to work requirements when associated with increased accountability.⁹²
• The fact that the emphasis on some aspects of the work has changed does not in itself constitute a significant net addition to work requirements.⁹³
• The introduction of a new training program or the necessity to undertake additional training is illustrative of the increased level of skill required due to the change in the nature of the work.⁹⁴ But keeping abreast of changes and developments in any trade or profession is part of the requirements of that trade or profession and generally only some basic changes in the educational requirements can be regarded, of itself, as constituting a change in work value.⁹⁵
• Increased workload generally goes to the issue of manning levels not work value.⁹⁶ But, where an increase in workload leads to increased pressure on skills and the speed with which vital decisions must be made then it may be a relevant consideration.⁹⁷

[191] The principle provides, in paragraph (d), that where a significant net addition to work value has been established an assessment will have to be made as to how that addition should be measured in monetary terms. Such an assessment should normally be based on the previous work requirements, the wage previously fixed for the work, and the nature and extent of the change in work. However, it is open to the arbitrator to make comparisons with other wages and work requirements within the award, and in other awards, provided such comparisons are fair, proper and reasonable in all the circumstances. In particular, regard may be had to the wage increases ascribed to comparable changes in work value in other areas.⁹⁸ Care must be taken in relation to making a comparison with a provision found in a consent award.⁹⁹

[192] Once an appropriate rate has been assessed for the new or changed work the Commission may, depending on the circumstances of the particular case, create a new classification, fix a new rate for an existing classification, or provide for an allowance to be paid in addition to the existing rate for the classification. Further, the principle provides in paragraph (b) that where the new or changed work is performed only from time to time by persons covered by a particular classification, or where it is performed by only some of the persons covered by the classification, it should be compensated by a special allowance payable only when the new or changed work is being performed by a particular employee and not by increasing the rate for the classification as a whole.

5. The Evidence - Findings

5.1 Introduction

[193] Some 34 witnesses gave evidence during the proceedings, 24 on behalf of the LHMU and 12 on behalf of employer interests.

Union Witnesses - ACT

• Ms Beth Caroline Brunskill, Executive Officer of Training for Health and Community Services;¹⁰⁰
• Ms Nina Bukvic, Level 2 employee Pre-school Room, Reid Early Childhood Centre;¹⁰¹
• Ms Joanne Elizabeth Davies, Introduction to Pre-school Room Leader, Woden Early Childhood Centre;¹⁰²
• Ms Barbara Deacon, Coordinator, Spence YWCA Family Day Care Scheme;¹⁰³
• Ms Judy Elton, Level 2 Infants Room, Greenway Early Child Care Centre;¹⁰⁴
• Ms Michelle Fernandez, Director, Spence Children's Cottage Association;¹⁰⁵
• Ms Raeline Susan George, Director, Forrest After School Care Facility;¹⁰⁶
• Ms Stephanie Henderson, Assistant Director, Acton Early Childhood Centre;¹⁰⁷
• Ms Diedre Patricia Hobson, Assistant Director, Reid Early Childhood Centre;¹⁰⁸
• Ms Erin Kate Mary Johnston, Level 1 employee, Russell Hill Early Childhood Centre;¹⁰⁹
• Ms Jane Maree Marshall, Resource Coordinator, Central Canberra Family Day Care;¹¹⁰
• Ms Leslie Ralph, Head of Department - Child Studies Unit, Canberra Institute of Technology;¹¹¹
• Ms Molly Rhodin, Manager (previously titled Director) of the Greenway Early Childhood Centre.¹¹²
• Ms Reesha Babetta Stefek, Director, Woden Early Childhood Centre;¹¹³
• Ms Lynda Stubbs, child care organiser, LHMU.¹¹⁴
• Ms Toni Stedford, Level 4 Child Care Worker, Aranda After School Service.¹¹⁵

Employer Witnesses - ACT

• Ms Debra Anne Campion, Executive Manager, Communities @ Work Family Day Care Scheme;¹¹⁶
• Ms Amanda Ruth Colbran, Executive Manager of Early Childhood Services, Communities @ Work;¹¹⁷
• Ms Leanne Marie Crisp, owner and manager, Precious Moments Childhood Learning and Development Centre;¹¹⁸
• Ms Elizabeth Audrey Dau, Early Childhood Consultant;¹¹⁹
• Mr Stephen Larcombe, Chief Executive Officer, Northside Community Services Inc.;¹²⁰
• Ms Leonie Ann Maiden, Executive Manager of School Aged Care, Communities @ Work.¹²¹

Union Witnesses - Victoria

• Ms Jennifer Anne Bruinewoud, Children's Services Consultant.¹²²
• Professor Marilyn Challender Ann Fleer, Professor of Early Childhood Education, Monash University;¹²³
• Ms Rosemary Clare Forbes, Manager, Department of Child and Family Studies, Swinburne University of Technology;¹²⁴
• Ms Petra Hilsen, Manager, East Melbourne Child Care Co-Operative;¹²⁵
• Ms Veronica Ann Ilias, Industrial Officer, LHMU;¹²⁶
• Ms Diane Patricia Lawson, Chief Executive Officer, Community Services and Health Training Australia Ltd, and National Community Services and Health Training Advisory Body;¹²⁷
• Ms Lanie Muir, Temporary Organiser, LHMU and former Level 4 (Assistant Director) child care worker;¹²⁸
• Ms Michelle Walker, Director, Jindi Woraback Children's Centre;¹²⁹

Employer Witnesses - Victoria

• Ms Roslyn Howey, Workplace Trainer and Assessor with a nationally registered training provider; ¹³⁰
• Mr Martin Kemp, Director, ABC Developmental Learning Centres Pty Ltd;¹³¹
• Ms Linda Michelle Mrocki, Owner/Licensee/Director of Camberwell Junction Early Learning Centre and Owner/Licensee of Blackburn South Early Learning Centre;¹³²
• Mrs Susan Jane Peters, Manager, One World for Children and the OWC Training Unit;¹³³
• Mr Lucian Roncon, President, Child Care Centres Association of Victoria;¹³⁴
• Ms Sharon Ann Smith, Manager of five child care centres.¹³⁵

[194] On the basis of the material before us we have made a number of findings which are relevant to the determination of these applications. For convenience our findings have been grouped into six categories:

• the children's services sector;
• work value considerations;
• general
• specific
• shift in utilisation patterns;
• supervision and training of workers;
• programming;
• children from non-English speaking backgrounds; and
• children with special needs, or `at risk' children;
• the shift from child minding to child development;
• accreditation;
• qualifications and training;
• recruitment and retention issues.

5.2 The Children's Services Sector

[195] The children's services sector is primarily made up of four types of services: private long day care, community based long day care, family day care and outside school hours care.

[196] Data from the 2002 Census of Child Care Services conducted by the Federal Department of Family and Community Services, released in early 2004 (the 2002 Census)¹³⁶, shows that there has been significant growth in the child care industry. There were an estimated 732,100 children attending child care at May 2002, compared to an estimated 577,500 children attending care in 1999 (an increase of 27 per cent).¹³⁷

[197] In all service types the average number of children per service increased markedly between 1999 and 2002 as shown by the table below¹³⁸:

Table 16

[198] The introduction of Child Care Benefit (CCB) from 1 July 2000 was almost certainly a factor in this increase. CCB replaced Childcare Assistance and Childcare Cash Rebate from 1 July 2000. An estimated 501,100 families (this includes an estimate of non-respondent services) were assisted through CCB fee relief at the time of the 2002 Census (compared to 264,000 at the time of the 1997 Census). Ninety-two per cent of all families using long day care centres and family day care schemes received some CCB as fee relief. This was made up of 93 per cent of families using private long day care centres, 90 per cent of families using community based long day care centres and 94 per cent of families using family day care schemes. Maximum CCB was received by 43 per cent of all families using long day care centres and family day care schemes.¹³⁹

[199] Utilisation surveys conducted by the Department of Family and Community Services just prior to and following the introduction of CCB, and also departmental administrative data on CCB customers confirm that since the introduction of CCB the utilisation of child care services has been steadily increasing.¹⁴⁰

[200] The growth in the private long day care component of the sector has been particularly significant in recent years. It is the dominant means of providing long day care in Victoria.

Table 17¹⁴¹

[201] The capacity utilisation of child care services has also increased. In 2002, the average capacity utilisation in long day care centres, as measured by total child hours paid for as a percentage of total capacity, was 88 per cent (89 per cent in private and 86 per cent in community based long day care). This compares to average utilisation in long day care centres of 72 per cent in 1999 (with 71 per cent in private and 75 per cent in community based long day care centres). In 2002, the average utilisation in family day care schemes was 77 per cent, compared to 70 per cent in 1999. In 2002, 28 per cent of private long day care centres indicated they had no vacancies, compared to 9 per cent in 1999. This compares with 22 per cent of community based centres in 2002 and 7 per cent in 1999.¹⁴²

[202] As a consequence of all the changes noted above the number of persons employed in the children's services sector has increased over time. The growth in the number of employees providing child care in Commonwealth funded long day care centres is shown on the following page:

Table 18¹⁴³

[203] Mr Kemp gave evidence during the proceedings.¹⁴⁴ ABC's 2003 Annual Report is also in evidence.¹⁴⁵ At paragraph 8 of his statement Mr Kemp says:

" Information from the Office of the Minister for Family Services indicates that in 2002 the private childcare sector accounted for 72% of all Long Day Care Centre places throughout Australia and this translates to 40% of all formal care, or 760,000 children who access formal care. Formal care includes long day care, family day care, outside school hours care (including vacation care), and occasional care."

[204] ABC operates private long day care centres. It has grown significantly over time. In 1998 it operated 22 centres and by the end of 2003 it operated 187 centres in five states, including 39 centres in Victoria.¹⁴⁶ The 2003 Annual Report records a net profit of $12.07 million (up from $6.86 million in 2002). In his evidence Mr Kemp confirmed media reports that the company was on track to record a full year profit of about $20 million in 2003/2004.¹⁴⁷ The same media report¹⁴⁸ indicated that in February 2004 the company operated 270 centres including 54 centres in Victoria.

[205] On the basis of the foregoing we make the following findings:

1. There has been significant growth in the children's services sector since 1999.

2. Between 1999 and 2002 the average number of children per service has increased markedly in all service types. The capacity utilisation of child care services has also increased, and utilisation patterns of the users of long day care have changed over time. For example, in 1997 in Victoria some 63 per cent of child care attendance hours in private long day care centres were less than 30 hours per week. By 2002 this had increased to 73 per cent.

3. The growth in the private long day care component of the children's services sector has been particularly significant in recent years and it is the dominant means of providing long day care in Victoria.

4. In recent years publicly listed corporate chains have become a significant presence in the long day care component of the sector.

5.3 Work Value Considerations

5.3.1 General

[206] In general terms the witness evidence supports the proposition that the nature of the work of child care workers and the conditions under which that work is performed has changed over time.

[207] A number of witnesses called by the LHMU reported that the work was a lot more stressful than in the past and more is expected of a child care worker now than it was ten years ago.¹⁴⁹

[208] Witnesses called by the Employers also acknowledged that changes had occurred over time. For example, Ms Maiden said that:

"... there has been a change in the emphasis placed on qualifications by employers in the industry. Over the years people have begun to understand the significance of childcare and this in turn has added value to childcare and to the belief that workers should be `qualified'."¹⁵⁰

[209] In her statement Ms Dau says that the childcare industry has changed in many ways since 1990, including:

• there is a far greater demand for child care;¹⁵¹
• child care is increasingly in the spotlight and demands for accountability are greater than in the past;¹⁵²
• outside school hours care (OSHC) is a much more accepted part of school communities, there are now national standards for OSHC and a requirement for a proportion of staff to be qualified;¹⁵³
• the duties and responsibilities of workers within the industry have increased. Quality assurance has increased accountability. There is an increased workload to prepare for the accreditation review and the requisite paperwork has increased;¹⁵⁴
• family involvement and accountability to families has increased since the introduction of accreditation. For many centres this requires additional work;¹⁵⁵

[210] A number of the witnesses acknowledged that the physical work environment in child care centres had improved over time.¹⁵⁶ But others expressed a contrary view.¹⁵⁷

[211] In her statement Ms Forbes lists those factors that contribute to the complexity of the role of a child care worker. At paragraph 29 of that statement Ms Forbes says:

"The role includes:

• Providing a nurturing environment and interacting with the children in such a way that each individual child's emotional needs are met.
• Providing environments and experiences which are appropriately stimulating and engaging and interacting with the children in such a way that each child's cognitive, language, and creative development is stimulated.
• Providing experiences and environments that are supportive of children's social development and facilitating the interactions of children in such a way that their social development in a diverse environment is encouraged.
• Providing environments and experiences that support the children's physical development. The child care worker needs to assist young children to develop skills - with an understanding of the need for developing competence and confidence in a way that meets the need for independence as well as for safety.
• Providing safe and hygienic environments and implementing safe and hygienic practices which support children's health and well-being and which minimize the spread of infections and the risk of accidents in a group environment.
• Supporting children's nutritional needs and implementing safe food handling practices.
• Supporting the needs of children and families from socially, culturally and linguistically diverse backgrounds, facilitating understanding of that diversity and providing an environment where all children and families feel valued and included.
• Supporting the development of children with a range of special needs including supporting the families, liaison with other professionals and accessing specialist resources and services.
• Observing babies and children sensitively and accurately and using a developmental analysis of those observations to assist in planning and caring appropriately for each child.
• Planning appropriate programs for individual children and groups of children for all areas of their development and well being.
• Guiding children's behaviour, and managing situations where a child's behaviour is difficult and challenging.
• Communicating appropriately and sensitively with families in a way that is supportive of the child's well-being and development.
• Working as part of the team, managing staff, providing leadership, financial management, and supporting workplace relations.
• Understanding and participating in the process of meeting quality accreditation requirements.
• Complying with relevant legislation and regulations specific to children's services.
• Understanding the applications to children's services of Occupational Health and Safety requirements, food handling requirements and privacy legislation requirements.
• Operating in an environment that requires an understanding of duty of care, the rights of the child and the implications of legislative and ethical issues surrounding the reporting of suspected child abuse."¹⁵⁸

[212] Under cross-examination Ms Forbes was asked a series of questions concerning her claim about changes to the work and responsibilities of child care workers over the past decade and responded:

"Mr Moloney: If I put it to you that virtually all of those issues were featured - have been a feature of a trained child care worker's role now and in the past, would you agree with that?

Ms Forbes: Some aspects are, but for example an awareness of children's emotional needs. The fact that many - where children are identified are at risk of harm, sometimes child care centres are used as the place where a child has not been removed from the family, but where a child is being placed and the families are being asked to be supportive of that. And I think elsewhere and in this case I refer to the increased numbers of children who are seen in that category. Again, although it was always the case that you needed to provide stimulative - stimulating and engaging activities, the understanding of the really crucial importance of not just the years three to six but also the years nought to three for the cognitive development of children has involved - resulted in changes in that. In terms of providing the environments and experiences that support the children's physical development, that's become a much harder task as centres have had to cope with the, I suppose we call the insurance madness, where so many - there is so much concern for safety that it's sometimes difficult to give children sufficient physical development experiences. Understanding of the ways that cross-cultural - sorry, cross infection happens and an - there is constant research showing that changes have to keep being made to providing a safe and hygienic environment. Understanding of children's nutritional needs has changed, not just with the Food Handling Act but increased understanding of that. Again the social and cultural diverse and linguistically diverse backgrounds, our understanding of that has increased.

Mr Moloney: It is more the understanding rather than the actual issue?

Ms Forbes: No, I think in some instances it's some of the work they have to do has changed.

Mr Moloney: Well, some of these are very fundamental to the role of a child care worker and a children's services worker. For example providing environments and experiences that support the children's physical development; a safe and hygienic environment, some of those would be fundamental to the nature and work and the nature of the operation of a centre since their doors first opened surely?

Ms Forbes: Indeed and I think I have just explained how I also think that those change. That some of the needs of those changed. That for a whole range of reasons which I have just detailed.

Mr Moloney: You detail over the page at page 8 at paragraphs 31, 32 which you say are additional responsibilities meeting the quality and improvement of the accreditation system. The responsibilities there is it reasonable to say they are more about documentation. A lot more things are documented than what they used to be, but they still were done in the past as they are done now, now it's documented in the quality assurance process?

Ms Forbes: I've been in and out of child care centres for 25 years and in my observation the introduction of the National Quality Accreditation Improvement System has done just that. It has done - it has caused considerable improvements in the way things are done. It's true that some excellent centres did some of the things that they are required to do, by no means all. So there are many things that they are required to do and the very documentation of those requires very considerable skill, a lot of time and as anyone who is involved with child care centres would know, a lot of pressure and stress on staff."¹⁵⁹

[213] Professor Fleer's evidence was to similar effect. In her statement she says that: "Over the past 10 years there has been significant instability in the children's services sector."¹⁶⁰

[214] Under cross-examination Professor Fleer was asked to elaborate on what she meant by this part of her statement and she replied in the following terms:

"... it's in relation to the fact that the sector has changed significantly over a period of time and I mean, resourcing is part of that; availability of places is part of that; changes in qualifications is part of that. There is a whole range of the quality assurance processes as part of that, there has been a tremendous amount of change for people who work with young children to actually be involved in. They effect them on a day-to-day basis and particularly with funding being reduced in different sectors, at different times and redistributed in different ways. We've seen the outcomes of that which is, you know, parents become suddenly a bit frightened about the costs and then they have a lot more part-time places which puts additional work demands on the staff that work with those children because instead of seeing 40 children they might see 80 children who are part time. It's just a very different - and to plan for 80 different children, to observe 80 different children, to keep records on 80 different children is - so that is - I am referring to the sort of complexity, the way the area has evolved and changed over time and those sort of factors, along with international evidence that parents are demanding much higher levels of placement for their children and they are seeking centres that provide that for their children."¹⁶¹

[215] Not all of the evidence accepted that change had occurred. For example, it was Ms Mrocki's evidence that:

• changes to Children's Services Regulations have not placed any extra requirements on staff;¹⁶²
• training of staff has always been a function of a Director;¹⁶³
• food handling guidelines have not placed additional responsibilities on staff whose primary responsibility is the care of children;¹⁶⁴

[216] In relation to changes in the work of child care workers Ms Mrocki says, at paragraphs 27 to 29 of her statement:

"27. In the time that I have been involved in child care, there have been some significant changes in the way that child care centres operate as well as the way the work is performed. However, the fundamental aspects are still in place and whilst there may be a heightened feeling of responsibility on the part of all staff members, the fundamental nature of the duties have not changed significantly. As the industry has become more professional, so have the staff members and I believe that there have been some changes in the duties with an increased depth of theoretical knowledge that comes with more training. However, I do not believe that there has been a significant increase in the level of skill and responsibilities of the employees, particularly when considering aspects such as programming and observation requirements of the positions, changes in duties and required skill levels.

28. From my own experience in the Industry, I can categorically say that there has been no change to the demands of parent interaction by the staff, job requirements or responsibility. The only visible changes may be that today, unlike some years ago, we now document everything and have clear job descriptions for staff to acknowledge before entering employment. Observations and planning has never changed and these have never changed in the regulations.

29. I do not agree that there has been an increase in the skill levels required of the employees as the only extra that I believe has occurred has been the introduction or awareness of more in-service training and courses being offered by the commercial training providers which has come about with introduction of accreditation. We are constantly bombarded with different groups sending us their course outlines, some of which are useful and others are very costly and of no particular practical value."¹⁶⁵

[217] In addition to evidence of a general character a number of specific changes were identified and we now turn to deal with those matters.

5.3.2 Specific changes

5.3.2(a) Shift in Utilisation Pattern

[218] The utilisation patterns of the users of long day care have changed over time.

Table 20
Utilisation Patterns LDC Victoria and the ACT¹⁶⁶

[219] The table shows that the proportion of child attendance hours of less than 30 hours per week increased between 1997 and 2002. In Victoria in 1997 some 63 per cent of child attendance hours in private long day care centres were less than 30 hours per week. By 2002 this had increased to 73 per cent.

[220] Community based centres show a similar increase, from 70 to 77 per cent.

[221] In the ACT in 1997 some 45 per cent of child attendance hours in private long day care centres were less than 30 hours per week. By 2002 this had increased to 55 per cent. In Community based centres the proportion increased from 62 to 65 per cent over the same period.

[222] The tendency for parents to take up child care places on a part-time basis was reflected in the proceedings before us. For example, the Camberwell Junction Early Learning Centre is licensed for 60 places but there are about 120 children in care in any one week because many of the children are part-time. Similarly, the Spence Children's Cottage Association Long Day Care Centre is licensed for 25 children but there are 67 children who attend the centre in any one week. ¹⁶⁷

[223] This change in utilisation patterns has increased the workload and the value of the work undertaken by child care workers.¹⁶⁸ In her evidence Michelle Fernandez, the Director of the Spence Children's Cottage Centre said: "Parents expect the same access to information through observation and planning for their child regardless of whether they attend ½ day or for the whole week."¹⁶⁹

[224] Similar observations were made by witnesses called by the Employers. Ms Colbran says:

". . .this has impacted on staff requiring to program for a larger number of children. In particular, there is a much higher trend towards part-time care now as opposed to full-week care, and accordingly, as we observe/plan for individual experiences then there has been a significant increase in the programming approaches undertaken by qualified staff."¹⁷⁰

5.3.2(b) Supervision and training of workers

[225] Since the introduction of the AQF system children's services training packages have incorporated on-the-job training and assessment. This development has increased the work of team leaders and others who supervise employees undertaking further study. Ms Hobson deals with this issue at paragraphs 13 and 14 of her statement:

"13. Currently we have 2 trainees in the centre, and 2 workers studying their diploma. All team leaders and myself are required to supervise these trainees. This involves going through their assessment booklets and marking off that they have met assessment competencies, and ensuring that they are able to undertake the duties listed. There is no paid time off the floor for any of the staff to supervise, monitor, train or answer question for trainees. The team leaders and myself generally undertake this work during lunchtime and out of hours.

14. We explain assignments for the trainees even though they are meant to have an assessor, the criteria for the modules they are undertaking, and lending the resources they require to understand the training. I believe that my centre is active in training and encouraging the training of workers. We are required by the facilitator to provide written assessments of these trainees. We are also required to provide written assessments of students that are studying the Diploma or the Certificate III for CIT."¹⁷¹

[226] Ms Hobson was not cross examined in respect of this part of her evidence and we accept it.

5.3.2(c) Programming

[227] In her evidence Ms Crisp acknowledges that there have been changes in the child care industry during the past few years. Ms Crisp points out that a number of these changes "have had a big impost on employers."¹⁷² When asked about the changes which have impacted on employees over the past few years, Ms Crisp replied:

"In regards to programming there's a lot more documents that need to be taken, a lot more information that needs to be given with observations, programming, evaluations, mainly for the purpose of accreditation though."¹⁷³

[228] These comments are supported by Ms Stefek, who says:

"When I first started at the centre 13 years ago it was common practice for a program to be displayed that didn't actually relate to any observations or anything like that, it was based on children's interests. Now, we actually base it on written observations. Staff program for each child who attends more than two days a week at our centre and we do that by looking at their skills, their strengths/weaknesses, things like that, their interests and we, from that, gain information, program for that accordingly and children will have often four or five, sometimes more, depending on their needs, programmed activities. So there is a lot of work just based on the program."¹⁷⁴

[229] In her evidence Ms Mrocki rejects the proposition that this aspect of the work of child care workers has changed to any significant extent at all.¹⁷⁵

[230] We find that changes in programming and documentation requirements have increased the workload of child care workers and have, to a limited extent, increased their accountability and responsibility.

5.3.2(d) Children from non-English speaking backgrounds

[231] The 2002 Child Care Census shows that children identified as being from culturally diverse backgrounds comprised 13 per cent of users in long day care schemes at May 2002 (compared to 11 per cent in August 1997).

[232] Ms Lawson deals with this issue in her statement, in these terms:

"The most recent census indicated that 3.9 million residents had been born overseas in one of 200 countries, and spoke 111 languages apart from Australian Indigenous languages are currently spoken. The pressure to target and provide culturally appropriate children's services is clear."¹⁷⁶

[233] We accept that dealing with children from differing cultural backgrounds creates particular challenges for child care workers. For example, Ms Elton referred to children exhibiting different feeding habits depending on their cultural background.¹⁷⁷ Ms Deacon works with children and families from fourteen different cultures, which requires her to have an understanding of wider cultural issues.¹⁷⁸

[234] In her evidence Ms Walker deals with the changes which have taken place in respect of this issue:

"47. In my experience, centres in the past were not required to have specific programs and deeper understanding of a wide range of cultural issues to reflect the diverse range of cultural backgrounds of the children in the centre. In today's multicultural society, families, government and regulatory bodies require that childcare centre develop programs which involve cultural events i.e.: Christmas, Easter, Mothers Day, Fathers Day, Chinese New Year, Vietnamese New Year. This requires additional planning, resourcing and research by the qualified staff member, and a wider understanding by all employees.

48. In our centre, there are 15 other main languages that are spoken, and when we are planning for an event staff are expected to communicate with the families to inform them of what we are doing. Therefore workers must source the information they provide to be sent out in the languages."¹⁷⁹

5.3.2(e) Children with special needs or `at risk' children

[235] The evidence suggests that there has been an increase in the number of children with special needs or `at risk' children in childcare centres, and that this has impacted on the work undertaken by childcare employees in all services.

[236] At paragraph 41 of her statement Ms Forbes says:

"Changes have occurred as a result of legislation, research and changing community approaches to child abuse and the reporting of suspected child abuse. Long day care is increasingly where many `at risk' and vulnerable children go (or are sent by social workers and the courts) when families need support and respite. Notifications of child abuse and neglect have increased from 31,707 in Victoria in 1996-1997 to 36,966 in 2000-2001. (An Integrated Strategy for child Protection and Placement Services, page 11, 2002). Many of these increased notifications result in families being referred to child care services as part of the strategy to put in place supports for the families concerned. The children and families often present with many difficulties and challenges."¹⁸⁰

[237] Other witnesses referred to the additional stress and time taken to care for children with special needs.¹⁸¹

[238] However, Ms Howey's evidence was that:

• special needs children require a higher standard of reporting but the requirements for such children vary enormously from centre to centre;
• special needs children have always been a common feature in children's services and the only real change has been to the level of awareness staff have, rather than any change to skill or responsibility; and
• there has never been sufficient funding for special needs children and centres may have to cope with existing resources.

5.4 From Child Minding to Child Development

[239] The evidence supports the proposition that the conceptualisation of children's services has changed over time from the notion of `child minding' or `child care' to one of `early child development, learning, care and education'. A number of broad developments have contributed to this conceptual shift, namely:

• neuroscience research on the early years of children's development;
• the link between the provision of early childhood programs and subsequent achievement; and
• the cost effective nature of early investment in children.

[240] We deal with each of these before turning to the impact of the shift to early child development on the education and work of child care workers.

5.4.1 Neuroscience Research

[241] Recent neuroscience research into brain development provides a new framework for understanding the fundamental influence of the early years of children's development. In her evidence Professor Fleer states that: "There is now overwhelming evidence of the importance of the first five years of a child's life."¹⁸² Professor Fleer was not cross examined in respect of this aspect of her evidence and we accept it.

[242] A September 2001 report to the Minister for Family and Community Services by the Commonwealth Child Care Advisory Council titled `Child Care: Beyond 2001' (the Beyond 2001 Report) also deals with this issue and notes that the understanding of the brain and children's early years has come a long way from the previous notion of very young children as a `blank slate'. The report states that the current research into the structure and operation of the brain demonstrates three key factors:

• Children are born `wired to learn'.
• The early `programming' that occurs from before birth has long term impacts.
• While the body's central nervous system comes wired to operate in a certain way, an individual brain learns to function as a result of processes which occur over time and which involve the interaction between individual wiring and the environment in which the individual develops.¹⁸³

[243] The Beyond 2001 Report summarises some of the changes in thinking about the brain in a table, which is set out below.

Table 19
Rethinking the brain¹⁸⁴

[244] The report goes on to observe that the implications of the research into brain development for child care, education and development are profound. In particular it is said that:

"The early brain research supplies a physiological basis for the long-held conviction that the role of carers and the care environment is very important to the growth and learning of children."¹⁸⁵

5.4.2 Early childhood programs and subsequent achievement

[245] Over the past ten years, the outcomes of longitudinal childhood research in the United States, and more recently Canada, have shown clear links between the provision of early childhood programs and children's subsequent achievement. This proposition is taken further in the Beyond 2001 Report, which contends that the early environment impacts not just on individual opportunities but also has implications for broad social outcomes. It is said that there is a "long shadow cast by poor attachment on mental health and crime."¹⁸⁶

[246] Attached to Professor Fleer's witness statement is a report by her, commissioned by the Department of Education, Training and Youth Affairs, titled: `An Early Childhood Research Agenda: Voices from the Field' (the Fleer Report).¹⁸⁷ In her report Professor Fleer deals with, among other things, the importance of early childhood education.

[247] The Fleer Report notes that the effects of early childhood education on children's subsequent achievement in later schooling and beyond have been well documented through many small-scale studies, large studies and reviews of studies generally - all suggesting that there are positive outcomes for children. For instance, in her literature review, Raban¹⁸⁸ found that early childhood education and care programs are cost-effective, reduce later school year repetitions, have reduced the resourcing needs for special education, have increased school completion rates and have diminished later delinquency¹⁸⁹.

[248] In particular, Raban noted strong evidence for a link between early childhood education and care programs and:

• increased secondary school completion¹⁹⁰;
• positive socialisation outcomes¹⁹¹;
• increased outcomes for girls¹⁹²;
• a lack of year repetitions and reduced intervention¹⁹³;
• more settled behaviours¹⁹⁴;
• aspirations for education and employment, motivation and commitment to schooling¹⁹⁵;
• the prevention of chronic delinquency¹⁹⁶ or crime/anti-social behaviour¹⁹⁷; and
• increased benefits with longer periods of time in early childhood programs.¹⁹⁸

[249] The qualifications of staff have been strongly linked to outcomes for children in New Zealand¹⁹⁹ and the United States²⁰⁰, demonstrating:

"The impact of early childhood training was strongest when there were more staff with three year training, and there were significant relationships between lower levels of training and quality. Centres with more staff with 3 year training had better planned resources and managed programs and children had more positive and responsive interactions²⁰¹. The general level of staff education also proved a strong predictor of quality (the second strongest predictor of quality on a stepwise regression analysis), so that centres with larger percentages of staff with no school leaving qualifications tended to be of lower quality (beta=-0.30, p=0.0001). Also the percentage of staff with 3 year training was the strongest negative predictor of children wandering and waiting (beta=-0.22, p=-0.006)²⁰²."

[250] The contents and findings of the Fleer Report were not challenged by the respondents in cross examination. Further, during her oral evidence Professor Fleer elaborated on her research experience and said:

"...in examining the research evidence that exists in terms of the fact that we have young children attending settings such as child care centres and pre-schools where the evidence is mounting which indicates very clearly that children of that age that the outcomes for them later in life and also in their school years is very contingent on the fact that they have a quality early years experience."²⁰³

[251] Professor Fleer's evidence in this regard was broadly consistent with the evidence of Ms Dau, a witness called by the ACT Employers. Ms Dau referred to a report by Sylva et al titled: `The Effective Provision of Pre-School Education (EPPE) Project: Findings from the Pre-School Period'.²⁰⁴ The EPPE Project is the first major European longitudinal study of a national sample of young children's development (intellectual and social/behavioural) between the ages of three and seven years. The features of the project's research design are dealt with in the Fleer report at pages 20 to 21. The key findings of the report in respect of the impact of attending a pre-school centre are as follows:

• Pre-school experience, compared to none, enhances children's development.
• The duration of attendance is important, with an earlier start being related to better intellectual development and improved independence, concentration and sociability.
• Full time attendance led to no better gains for children than part time provision.
• Disadvantaged children in particular can benefit significantly from good quality pre-school experiences, especially if they attend centres that cater for a mixture of children from different social backgrounds.

[252] The report also found that the quality of pre-school centres is directly related to better intellectual/cognitive and social/behavioural development in children. In that context the authors conclude that:

"The higher the qualification of staff, particularly the manager of the centre, the more progress children made. Having qualified trained teachers working with children in pre school settings (for a substantial proportion of time, and most importantly as the pedagogical leader) had the greatest impact on quality, and was linked specifically with better outcomes in pre reading and social development."²⁰⁵

5.4.3 Cost effectiveness

[253] The Fleer report also deals with the cost effectiveness of early childhood education and care. It is said that, in broad terms, money directed towards the birth-to-eight period has been shown to be a cost-effective method of supporting children and young people in achieving their potential. The research evidence supports the view that money directed to the early years will result in long-term outcomes in countries such as the UK, USA, NZ and Canada.²⁰⁶

[254] This proposition is supported by the extensive review of the relevant literature by Danziger and Waldfogel²⁰⁷ who conclude that:

"A consensus has recently emerged, among economists, developmentalists, and others, that investments in early childhood are cost-effective. For example, a recent review found that a variety of early intervention programmes have been successful in improving cognitive development and other outcomes for children."²⁰⁸

[255] The research support for long-term social outcomes in the USA through the evaluations of the High/Scope Perry Pre-school program²⁰⁹ demonstrated a cost-saving ratio of one to six that is an economic return of $6 for each dollar invested in the program. Such findings support the view that spending money on early childhood education is a better investment than paying for remediation later in life, such as treatment programs and support services, for problems that are rooted in poor early development.²¹⁰

[256] The Beyond 2001 Report also dealt with this issue at page 2, in the following terms:

"_ A growing body of research demonstrates the importance of the early years of life to later well being, and the need to value children and childhood as both a family and community responsibility.

• Australia cannot afford to ignore this evidence. Research in such diverse areas as neuroendocrinology, crime prevention, mental health and immunology overwhelmingly indicates that government investment in the early years is a cost-effective investment."

5.4.4 Impact on education and work of child care workers

[257] The shift in the conceptualisation of children's services towards early childhood development, learning, care and education has had an impact on the education and work requirements of child care workers.

[258] A number of witnesses with extensive experience as educators made reference to the increase in community expectations of child care workers as a result of an increased focus on early childhood education. Professor Fleer observed that:

"Over the past ten years there has been significant instability in the children's services sector. With changes to funding for childcare, the introduction of quality assurance systems and the increasing demand for childcare places, staff have been under enormous pressure. At the same time, the community has demanded more from staff in terms of providing a quality educational and not just care, environment for their children."²¹¹

[259] The neuroscience research on the early years of children's development has also led to changes in the training of child care workers. In her evidence Ms Forbes, an early childhood educator since 1975 said:

"An increase in recognition of the importance of the early years to future well being has permeated all aspects of courses. Additional training hours are being devoted to child development competencies, and to ways of fostering children's development of understanding and supporting their conceptual development through a wide range of experiences."²¹²

[260] Similarly, in her evidence Professor Fleer said that all tertiary courses held in child care assume that the child care workers will provide an educational environment. According to Professor Fleer "This has been a significant change to the training and requirement of workers in childcare over the last few years."²¹³

[261] The evidence of the child care educators was largely echoed by those practising in the sector.

[262] For example, in the course of her evidence Ms Henderson, the Assistant Director at the Acton Early Childhood Centre, said:

"With the children the environment's probably changed considerably. We seem to have gone from having just been very care based 10 years ago to running programs that encourage development in all areas for the children. It's also - we've had to increase our knowledge about health and hygiene for the children, safety practices, so all of the environment they're basically spending their days in has changed and become probably a much nicer place to be. And the staff have a better knowledge as well over the last 10 years I think. ... I think with accreditation staff have been required to look at different areas that not everybody in child care was necessarily educated about. ... I think it's more stressful than it used to be and it's a lot more professional than what it used to be."²¹⁴

[263] Other witnesses gave evidence to similar effect.²¹⁵

[264] On the basis of the foregoing we make the following findings:

1. The conceptualisation of children's services has changed over time from the notion of child minding or child care to one of early child development, learning, care and education.

2. Recent neuroscience research into brain development supports the fundamental influence of the early years of children's development.

3. The available research supports the proposition that there are clear links between the provision of early childhood programs and children's subsequent achievement. This has implications not just for individual opportunities but also for broad social outcomes such as mental health and crime.

4. The available research supports the proposition that the provision of quality child care is directly related to better intellectual/cognitive and social/behavioural outcomes in children. The quality of care, and hence outcomes for children, is positively related to the level of the qualifications of the staff working with children.

5. The available research suggests that money directed to the early years of children's development results in positive long term outcomes and is cost effective.

6. The shift in the conceptualisation of children's services towards early childhood development, learning, care and education has increased community expectations of child care workers and has led to changes in their training and development.

5.5 Accreditation

[265] The Federal Government has set up the National Childcare Accreditation Council to administer the quality assurance systems in the child care sector.²¹⁶ Quality assurance systems operate in each service type in the children's services sector.

[266] The Quality Improvement and Accreditation System (QIAS), for long day care services was developed in consultation with parents and the child care field and commenced on 1 January 1994. QIAS encourages continuous improvement. QIAS focuses on quality outcomes for children. It involves services undertaking a process of self-study and improvement against 35 principles of good quality care. These principles are incorporated into ten quality areas:

1. Relationships with children

2. Respect for children

3. Partnerships with families

4. Staff interactions

5. Planning and evaluation

6. Learning and development

7. Protective care

8. Health

9. Safety

10. Managing to support quality

[267] Family Day Care Quality Assurance (FDCQA) was developed in consultation with parents and child care professionals and commenced on 1 July 2001. FDCQA encourages continuous quality improvement and is designed to complement state and territory licensing regulations and local government guidelines, which generally provide a minimum standard of operation for family day care schemes.

[268] FDCQA focuses on quality outcomes for children. It involves schemes undertaking a process of self-study and improvement against 32 principles of good quality care. These principles are incorporated into six quality elements:

1. Interactions

2. Physical environment

3. Children's experiences, learning and development

4. Health, hygiene, nutrition, safety and well-being

5. Carers and coordination unit staff

6. Management and administration

[269] Outside School Hours Care Quality Assurance (OSHCQA) was developed in consultation with sector representatives and commenced on 1 July 2003. OSHCQA encourages continuous improvement in the quality of services provided.

[270] OSHCQA is designed to complement state and territory licensing regulations and local government guidelines, which generally provide a minimum standard of operation for outside school hours care schemes.

[271] OSHCQA focuses on quality outcomes for children. It involves schemes undertaking a process of self-study and improvement against 30 principles of good quality care. These principles are incorporated into eight quality areas:

1. Respect for children

2. Staff interactions and relationships with children

3. Partnerships with families and community links

4. Programming and evaluation

5. Play and development

6. Health, nutrition and well-being

7. Protective care and safety

8. Managing to support quality

[272] To be eligible for CCB approval, long day care, family day care and outside school hours care services must register with the National Childcare Accreditation Council (NCAC) and satisfactorily participate in the relevant quality assurance systems. CCB is a payment made to families to assist with the costs of child care. Families using child care provided by approved child care services or registered carers may receive CCB.

[273] There are five steps in QIAS, FDCQA and OSHCQA:

1. Registration

2. Self-study and continuous improvement

3. Validation

4. Moderation

5. Accreditation decision

[274] After the initial completion of the five steps, a service recommences the cycle of the step process for continuous improvement. There are processes for review of an accreditation decision, and for appeal against a decision to withdraw CCB approval.

[275] The stated aim of the quality assurance systems in child care is "to ensure children in care have positive experiences that foster all aspects of their development."²¹⁷

[276] Whilst state and territory licensing and regulation procedures in Australia monitor such things as staff/child ratios, group size, staff training and physical space requirements, accreditation procedures examine quality in relation to "interactions that occur between staff and children, the developmental appropriateness of the curriculum, and the implementation of appropriate health and safety procedures".²¹⁸

[277] In June 1995 the Federal Government commissioned an evaluation of QIAS which subsequently found: "... that the system was having substantial perceived benefits for service quality, and that most of the study's participants had a positive attitude towards accreditation".²¹⁹

[278] Further, a different study surveyed staff in 50 long day care centres across all areas of the Sydney region and found that most:

"... agreed that accreditation ensures high quality care but they found the process difficult, mainly due to lack of time. Work conditions over all had not changed as almost half of the respondents do not have allocated time for written work..."²²⁰

[279] A number of witnesses who gave evidence about the impact of the introduction of the QIAS reported a significant increase in the paperwork required as a consequence of the introduction of accreditation. Ms Stefek said:

"When I first started at the centre 13 years ago it was common practice for a program to be displayed that didn't actually relate to any observations or anything like that, it was based on children's interests. Now, we actually base it on written observations. Staff program for each child who attends more than two days a week at our centre and we do that by looking at their skills, their strengths/weaknesses, things like that, their interests and we, from that, gain information, program for that accordingly and children will have often four or five, sometimes more, depending on their needs, programmed activities. So there is a lot of work just based on the program. Accreditation has brought a lot of extra work for the child care field. We're formalising things that we haven't needed to formalise before. We have to document it now with accreditation. Everything has to be sourced. So you have to go back. So it's not just how your centre does it, it actually has to be sourced on why you do things like that. So there is a lot more work involved."²²¹

[280] While Ms Stefek acknowledged that child care workers were undertaking the same tasks before accreditation, she said that accreditation introduced the need to formalise what they are doing:

"Mr Maloney: There was never a demand for formalisation but you were doing those things before, weren't you?

Ms Stefek: Yes, but it takes so much time to formalise what you do because so much of what we do is innate and so to formalise that takes so much. We have to actually look at every step that we take so - - - 

Mr Maloney: So, formalisation relates to, for example, medication, food handling, observations, reporting to parents, putting the program on the wall so that the parents can see it at the beginning and the end of the day etcetera. Those types of things?

Ms Stefek: Yes, at least, yes."²²²

[281] In her statement Ms Walker makes the following observations about the impact of accreditation:

"44. The National Childcare Accreditation Council has also made a number of changes which directly impacts on the daily working of the centre, my role within the centre, and the duties of each staff member. For example, it was previously the practice in our centre as well as all other childcare centres to record the toileting habits of all children. This was usually done by writing on a white board by the child's name as to how many times they went to the toilet and what was the outcome or if it was an infant how many times the nappy had been changed and the outcome.

45. When the child was collected by the parent this was communicated verbally about the child. However, it is now required that all information be recorded about the child's day be recorded in the child's individual book, and then written on a separate piece of paper for the parents. This information also includes such things as sleeping times and eating habits of the child. This is then archived at the centre and the purpose of this is to prove to the department that we are doing what we say we are doing. This is also used for accreditation. This was not undertaken 10 years ago.

46. Staff are required to have checklists of when toys are cleaned for health and safety regulations, and prevention of cross infection. Once these tasks are completed they are also archived. If there is a suspected case of cross infection, we have to document this and put in place a plan which ensures that it does not repeat. This was not undertaken 10 years ago."²²³

[282] In her evidence Ms Sharrock²²⁴ refers to staff having input into the policies and procedures at the centre at which she is employed as a full time child care worker level 2.

[283] A number of the witnesses called by the Employers tended to regard the introduction of accreditation as simply formalising and documenting tasks which had been done prior to accreditation, though it was acknowledged that accreditation had increased the administrative work required.

[284] In her statement Ms Colbran says:

". . . whilst this has been a change, I believe it has been more about formalising the quality of care provided by the service. It is true however that these changes have led to greater administration because of the extra documentation and evidence needed to validate the accreditation process."²²⁵

[285] Ms Crisp also deals with the impact of accreditation at paragraphs 5, 6 and 8 of her statement in the following terms:

"5. There have been changes in the child care industry during the past few years, but it is important to point out that these changes have had a big impost on employers. For example, there is now a requirement and expectation from parents, regulators and government to document everything and the time that this takes is increasing. For example in relation to accreditation since 1998 when a new accreditation scheme was introduced and operators were required to bring child care services up to 52 principles. Today, we are required to meet 32 principles which range from interactions with children and staff to other aspects of running a service.

6. It is important to educate and inform staff of any changes to the accreditation requirements. The process involves firstly performing a self assessment, then an assessor comes into the centre and spend two days to perform another assessment and then pending the outcome, accreditation is achieved. For a high quality rating, a review would then be conducted every two and a half years. ...

8. Accreditation means that employees perform more than just simple tasks or child minding, instead today they provide education and care for the physical, social and personal needs and development of children. There is now an expectation that child care employees will have a high level of cognitive and intellectual knowledge and skills. Child care employees must now know about human development, nutrition, occupational health and safety, legal responsibilities, management practices, and group dynamics. Furthermore, a baby sitter or child minder does not have a `duty of care' as a child care educator today does. Today child care employees are responsible for the whole development of children and so must not only be better educated and resourced, but also paid accordingly."²²⁶

[286] In relation to the impact of accreditation Ms Maiden says:

"Since 1990 accreditation has made an impact on procedural and time management issues. Even though quality assurance has been implemented and child care centres are required to meet a certain standard in line with the centres licencing requirements there has been no actual increase in workload for the staff working directly with the children. These are in fact standards that should be met with or without the accreditation process. Documentation of all evidence has been the major impact as work practice itself should not have had to change."²²⁷

[287] Ms Mrocki deals with this issue at paragraph 17 of her statement:

"(a) The introduction of Accreditation is linked to the entitlement of parents to Federal Child Care Benefits and has meant some limited changes for staff in the areas of keeping records on children, such as observation and developmental records to assist staff to program accordingly. It has been my experience that these functions and processes have always been performed by Child Care staff members to produce an appropriate developmental program for the children. This approach was a fundamental component of my Diploma studies to enable the students' competencies to be assessed.

(b) There is a significant level of activity required on the part of the Director/Owner for the completion of the self-study report which forms the basis for Accreditation approval. I do not expect my staff to undertake this work and it has not been my experience that staff perform this work in other centres I have been involved with, unless they are in a management position.

(c) It has been my experience that Accreditation approval is not a factor which influences the decision by parents to use my Centres for care of their child. I have never had a parent ask me if my Centres are accredited when they enquire to place their child in our care. I do not actively promote Accreditation approval when talking to new parents, although I will mention it if the occasion arises during a parent interview as the CCB is linked to accreditation.

(d) I have always made it a practice to hold regular staff meetings to discuss a whole range of operational issues including accreditation. The only real change I have observed is that the meetings are sometimes a bit longer when we discuss accreditation requirements. Meetings are generally held on week nights and staff are paid for the time plus I provide them with dinner.

(e) The only real change that I acknowledge is that there is more documentation associated with accreditation, albeit that the observations are still the same except that they are now documented in detail where as previously they were not as well documented."²²⁸

[288] In her oral evidence Ms Mrocki clarified her statement and said that all of her staff are involved in the QIAS process and in the development of centre policies²²⁹.

[289] Mr Roncon dealt with the impact of accreditation at paragraphs 8 to 10 of his statement:

"8. The introduction of accreditation has led to a significant increase in record-keeping and paperwork. Approximately 80% of these tasks fall to the Directors or Owner/Operators and the remaining 20% is spread between the staff of the Centre.

9. The program planning is driven by the regulations and is designed to be appropriate to the ages and developmental needs of the children.

10. Accreditation has, in my experience, created a higher level of awareness in staff, in that they more thoroughly understand what they are doing and why they are doing it and has led to greater levels of documentation to ensure that there is an absolute transparent system in place for the accreditation checking and quality auditing functions."²³⁰

[290] Under cross examination Mr Roncon acknowledged that staff have input into QIAS, but said that a significant amount of the work is by management.²³¹

[291] In her evidence Ms Peters says:

"The only change that I believe accreditation has brought about is records now are required to be kept for a number of years rather than discarded at the end of the week or month, etc. Archive files are in my experience made for these records for all staff to have easy access to them. Centres have always followed procedures but may not have had these in a written format. Staff just knew that that was how the centre operated. The Accreditation process has ensured that services do need to have all policies and procedures in a written format and that there is consistency in the services provided by centres."²³²

[292] The evidence of a number of the witnesses called by the Employers was addressed in the evidence of Ms Bruinewoud.²³³ In our view Ms Bruinewoud's evidence dealt comprehensively with these issues, in many instances by reference to QIAS documents. We accept Ms Bruinewoud's evidence and prefer it to the evidence of other witnesses.

[293] We also note that a number of the observations made by Ms Bruinewoud were supported by witnesses called by the Employers.

[294] Ms Crisp made a number of comments in her statement about accreditation. These are referred to earlier in this decision.

[295] During cross examination Ms Crisp expanded on the comments made in her statement:

"Ms Crisp: It hasn't really changed. I think accreditation puts a lot more pressure on people because they know that you're working up to ultimately the validator coming into the centre and spending however long in the centre looking at every little thing that you do so in that respect it puts a lot of pressure on what staff are doing. It's no different. They're still providing the care, the education that they've always done but with somebody watching every move you make it puts a lot of stress on to them. ... In regards to the accreditation principles it is stated that child care workers must have a knowledge of nutrition, all child development, occupational health and safety which has previously never been such a huge issue in the industry.

Ms Bellino: So, these are more recent changes?

Ms Crisp: Yes."²³⁴

[296] Ms Howey, another Employer witness, made the following comments about the impact of accreditation:

"7. The accreditation process has been in place for over 10 years and there are a number of requirements on the Director of the centre. From my own involvement, I am able to say that it has been my experience that staff are more aware of the need for observations and the level of detail that is now required. The observations are more clearly linked to the daily program plan as this is what the accreditation reviewers are looking for when they conduct their auditing process within the centres.

8. I believe that there is a somewhat higher level of awareness on the part of staff members which is reflected in their professional terms of knowledge. The key to these tasks and skills is to be able to write things down appropriately to enable proper observations and assessments to be made."

[297] In her evidence Ms Dau referred to the added responsibilities which have been imposed because of accreditation.²³⁵

[298] In our view the evidence supports a finding that accreditation has increased the workload of child care workers and has to a limited extent increased their accountability and responsibility for their work.

5.6 Qualifications and Training

5.6.1 General

[299] The proportion of long day care employees holding formal qualifications has increased over time. In the 1996 and 1997 Census about 50 per cent of all long day care employees had formal qualifications. By the 2002 Census this figure had increased to 55 per cent. Of the employees in long day care centres in 2002 who had formal qualifications, 77 per cent held a Child Care Certificate or Diploma/Bachelor of Child Care compared with 71 per cent in 1999. Eighteen per cent (compared to 22 per cent in 1999) held teaching qualifications, 5 per cent (compared to 8 per cent in 1999) held nursing qualifications and 10 per cent (compared to 12 per cent in 1999) had other relevant qualifications. Some staff held more than one qualification.

[300] The 2002 Census of Child Care Services also shows a high level of participation in in-service training. In-service training was undertaken by 70 per cent of all staff and 79 per cent of caregivers in child care related or financial management subjects during the previous twelve months.

[301] Of centre based staff who have undertaken in-service training, 20 per cent undertook training for additional needs children, while most staff (67 per cent) undertook other child care related training courses. Nine per cent undertook management/financial training and 60 per cent other relevant training (eg. First Aid Certificate).

[302] The experience of many of the witnesses in the proceedings attests to a strong commitment to continuing professional development. A number of the witnesses had attended a wide range of continuing education courses to assist them in performing their work.²³⁶

5.6.2 Course changes

[303] The preponderance of the evidence supports the LHMU's contention that there have been significant changes to the structure and content of child care training courses since 1990.

[304] A number of the LHMU's witnesses gave evidence about this issue.

[305] The evidence of Ms Ralph and Ms Forbes was that a significant number of changes have been made to the training regime of childcare workers, including the number of modules, content changes within the modules, and changes as a result of industry feedback, government policy or community and parental expectations.

[306] Ms Forbes also states, in paragraph 24 of her statement, that "the responsibilities and expectations of the child care worker have increased quite markedly in the last 10-12 years and have occurred as a result of changes in government, community and parental expectations. Training has also changed in that time in order to meet the increased expectations and responsibilities."²³⁷

[307] Further, at paragraphs 30 to 53 of her statement, Ms Forbes documents the specific changes to training, government legislation and community expectations for childcare workers, for example, changes following the introduction of QIAS (paragraphs 31, 32, 34, 35, and 36); Food Handling Legislation (paragraph 37); Health and Safety Requirements (paragraph 38); and Privacy Legislation (paragraph 40).

[308] Ms Forbes' evidence details the significant changes in the training of child care workers to meet the increased demands of the roles. At attachments 4a and 4b to her witness statement, Ms Forbes shows the specific changes, increased hours for theoretical development, the increased complexity of knowledge and skills for an AQF Certificate III in Children's Services, and AQF Certificate V Diploma in Children's Services and an AQF VI Advanced Diploma in Children's Services. This evidence was not contested.

[309] Ms Forbes's evidence included a number of tables setting out the changes in training and qualifications for both the AQF Level III (the Certificate III)²³⁸ and the AQF Level V (the Diploma level) ²³⁹. She noted that the number of on-the-job hours required for the Certificate III had greatly increased since 1995. Ms Forbes also indicated that the Level V qualification had only been in existence since 2000.

[310] Ms Ralph provided an overview of the changes to the courses offered by the Canberra Institute of Technology at the AQF Certificate III and Diploma level²⁴⁰.

[311] In the course of her evidence Ms Ralph contrasted the old TAFE Child Care Practices Certificate with the courses currently being offered. The former TAFE certificate was a one year course of 15 hours per week in which students were only required to complete the following modules to achieve competency:

• Development and Education 1
• Applied Practice in Child Care A
• Social Studies and Study Skills
• First Aid for Community Services
• Interpersonal Skills in Child Care
• Practicum 1
• Development and Education 2
• Applied Practice in Child Care B
• Health and Safety
• Practicum 2