Australian Liquor, Hospitality and Miscellaneous Workers Union, Queensland Branch, Union of Employees v Edmund Stuart Groves of ABC Learning Developmental Centres Pty Ltd and Ors [1996] QIRC 819 (1997) 154 QGIG 4

4 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 3 January, 1997 ########################################################## QUEENSLAND INDUSTRIAL RELATIO:\S COMMISSION !ndu.Hrial Relations Act 1990 s. 144 application for variation s. 144 - application for rescission and new award Australian Liquor, Hospitality and Miscellaneous Workers Union, Queensland Branch, Union of Employees (Nos R27-3 of 1991, B463 11( 1993 and B561 ofl994) AND Edmund Stuart Groves of ABC Leaming Developrnt~ntal Centres Pty Ltd 1 No. B395 of 1994) AND Martin Kemp of Care Bear Child Care Centre (No. B519 of ]994j AND Queensland Chamber of Commerce and Industry Limited. Industrial Organisation of Employers (No B543 of 1994) AND Local Government Association of Queensland Incorporated and Others KINDERGARTEN TEACHERS' A WARD - ST ATE CHILD CARE INDUSTRY A WARD - STATE COMMISSIONERS DEMPSEY, NUTTER AND BLOOMFIELD I I Decemher 1996 Child Care Industry -- Rescission and New A ward Substantial agreement between parties Evidence - Wages -Agree{1 Relativities Hours of Work 38 Hour Week Li~t of Cost Offsets Reference to Child Care Act 1991 and Regulations Wage Fixation Principle~ - Special Case Arbitrated Matter 2 Awards to cover industry One Award to cover kindergartens and pre-schools - Other A ward to cover long day care side of industry (including Teachers employed in child care centres) Standardised conditions in new Award Wages and hours to be phased-in - Definition of "Teacher" not vaned from earlier decision Exemption Rate detem1ined Enterprise Flexibility Clause a<; per State Wage Ca<;e Existing Part-Time Employee clause to be retained - Casual hourly limit reduced Sa1urday work penalty not dealt with Sick leave for Kindergarten Teachers vruied - Locality Allowances to be phased-out over 4 year period, unless Commission otherwise detem1incs Director's Allowances retained -· Entitlement to Professional Development Leave for Teachers to continue Non-Contact time for Teachers set at 2 hours per week Leave reserved on issues of Saturday Work and Paid Meal Breaks Parties 10 confer on terms of New Award DECISION On 22 March 1996 the Commission issued a decision in relation to various applications to amend the Kindergarten Teachers' Award - State ( 151 QGIG 2055). That decision should be seen in the light that although it only involved a decision affecting salary rates for Kindergarten Teachers there were a number of other issues which arose during the course of the conduct of that case and which needed to be addressed in the decision In relation to one of those issues the Commission detennined that there should, from l January 1997, be only two Awards covering the separate sectors of the "child care industry" identified by us in the decis10n. We also directed the parties to confer with a view to reaching agreemenl on the f01111 and content of each of the Awards in question by the end of 1996. To this 22149_1.DOC 3 January, 1997 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 5 end one Member of the Bench regularly held report-back proceedings during which the pru1ies infonned him of their progress towards the stated objective. In the decision we detennined one Award should cover kindergartens and pre-schools and that the other A ward should cover the long day care side of the industry, including Teacher!-> (as defined) employed in child care centres Our decision of 22 March 1996 also indicated that we expected that the Award covering the long day child care side of the industry would reflect the nature and the requirement of !hat sector and that standardised conditions of employment ~hould be introduced into the Award. In this regard we indicated:- "ln our view there is no logical reason why conditions of employment should be different for different types of employee within each sector, except a~ may be necessary to reflect the professional or other a<;pects of the position occupied." As a result of the discussions between the parties including discussions about the wage rates applicable lo per~ons covered by the Child Care Jndu~try Award - State there ha, been substantial agreement achieved. One of the items agreed was the creation of a new Child Care Industry A ward State. The negotiations between the parties involved four ma,jor areas:- ( I) Creation of a new '·standardised" A ward covering the long day child care industry; (2) Salaiies for Directors, Assistant Directors, Group Leaders, Assistant Child Care Workers and other staff employed in child care centres; (3) A reduction in standard hours to 38 for persons previously covered by the Child Care Industry A ward State; (4) The standardisation of hours for persons previously classified a'> Teachers under the Kinderganen Teachers' Award State with those of persons covered by the "old'' Child Care Industry Award - State. At the outset of arbitration proceedings on 28 October we were presented with several exhibits which recorded the comparatively small number of outstanding issues which remained unresolved after the parties had concluded their negotiations on the above four issues. We were also told ahout the areas where the parties had achieved agreement - including salary levels. We are conscious that the proposed new Child Care Industry Award State i, to commence from I January 1997. Included in the new Award is the initial ,eduction to 39 hours per week a.-, part of the pha-;ing-in of the 38 hour week In addition, there is the first increment in the proposed new wages structure which will apply under the Award. There are a number of other variations which will also need to be communicated to employers and employees alike. For convenience we deal with the issues which remained unresolved, JJ1d which we are required to determine, in the order in which they were raised by Mr Reed, on behalf of the Australian Liquor, Hospitality and Miscellaneous Workers Union, Queensland Branch, Union of Employees (ALHMWU) Wage Rates All of the parties submitted that there had been significant changes to the work value of per!->ons covered by !he "old" Child Care Industry Award State since wage rates were Jas;t reviewed in that Award. In particular, our attention was drawn to the new Child Care Act I 991, and its accompanying Regulations. a-; well a, to national accreditation arrangements which had impacted upon the industry in recent years. The Commission wa<; advised of the mandatory qualifications now required a<. a result of the Act and Regulations in 1992 with the resultant added responsibilities; the additional tas;ks and duties required of all staff as a result of national accreditation; and greater expectation by the client base in respect to the appropriateness of programs to be delivered. It was on the hasis of these changes, which all parties agreed had occurred. that the Commission was a<;ked to endorse new wage rates negotiated between the parties and which were set out in the various exhibits tendered. We believe that the changes in the nature of the work perfonned and the skill and responsibility now required constitute a significant nel addition to work requirements a, to warrant the increa,cs proposed and to satisfy the Principles of the Commission. The Commission ha,;; had the opportunity to consider the wage rates proposed in Exhibit 49 and the actual increa1ses which eventuate as a resull of the new wage rates. In doing so we note that the parties have reached agreement about such wage rates on the ba'>is of agreed relativities and we are, after reviewing what ha<; been proposed, prepared to endorse both the new relativities and the wage rates which result. For convenience we set out the new (ultimate) wage rates which have been agreed, and relativities, in the Schedule attached to this decision. The parties were unable to agree about the pha<;ing-in of the resultant wage increases, with some parties suggesting that they be pha,;;ed-in over a period of eighteen months whilst others suggested that they be pha,;;ed-in over a period of two years We note also that the submissions delivered on this matter were made in the context that there were a number of items outstanding and that each of the parties' submissions wa<; made on the ba'>is that each pressed for their "package" of proposals to be adopted a<; part of an overall package of outcomes. Acting on this presumption, and our own concern that employees covered by the "old" Child Care Industry Award - State have had to wail a considerable period of time to receive a wage increase. we have detem1ined not to accept any of the proposals advanced. Rather, we detennine that the increa<;es which arise as a result of the new wage structure will be phm;ed in a-; follows:- • From l January 1997 - any increase which is up to an amount of $!0.00; • From l July 1997 - 50% of the balance of the wage increase which is receivable (excluding incremental adjustments) after payment of the amount of$l0.00; • Prom I January 1998 - the remaining 50% of the wage increase involved (excluding incremental increa-es). In so detennining the Commission ha<i exercised the general jurisdiction and powers available to it under s. 30, s. 32(3) ands. 90(1)(a) of the Act. In making this determination we are conscious of the financial impact that it will have on employers and the impact which it may have on those who utilise child care facilities. However, we believe that there are strong grounds on this occa<;ion - having regard to our decision overall - to warrant payment of the total increa,es over a shorter period than ha<; been proposed during the course of argument. We also note that there is an outstanding issue in relation to the translation of Directors, who hold a 3 year qualification, into the new structure. We propose that they shall move to the new structure in an incremental fa<;hion as follows:- • Director currently clm:sified a<; 2 year qualified Year I shall convert to Director 3 year qualified Year l; • Director currently cla1,sified as 2 year qualified Year 2 shall convert ro Director 3 Year qualified Year I; • Director currently cla'isified a<. 2 year qualified Year 3 shall convert to Director 3 Year qualified Year 2; • Director currently classified a<; 2 year qualified Year 4 shall conve,1 to Director 3 year qualified Year 3; • Thereafter, annual progression to Year 9. So a<; not to confuse the translation issue too greatly we propose that 3 year qualified Directors would translate to the scale set out above from I January 1997 according to their level at that date and that they move to the next increment under the new 3 year qualified scale on their normal increment date. For those Directors who commenced in the industry prior to 1991 this date will be I September and for persons who commenced after that date it will be the anniversary date of their commencement. 22149_1.DOC -- 1 of 3 -- 6 QUEENSLAND GOVERNMENT INDUSTRIAL GAZE'ITE 3 January, 1997 38 Hour Weck Then.: ha, hccn signilkanl agreement reached hctWL'Cn the parties which involves a number of award variations 10 minimise the cost impact associated with the introduction of a J8 hour week. Included in the cnst minim1sat1011 measures is the delayed introduction of a J8 hour week _by a phasc-m arrangement with hours being reduced to J9 hours per week from l January 1997 and to JX hours per wed from I January 1998. The proposed award change, (detailed lx:low), including the delayed introduction of a J8 hour week, in our view go a large way towards meetmg the necessary cost oflscl a, to ,atisfy the Commission_'s Wage Fixation Principles relating to a reduction in hours of work. Combined wll~, the other variations wc have dctcnrnncd, as pall of a "packagc outcome , we arc satisfied that the cost olhct requirement h,L'i hcen satisfied. The agreed changes to the Award, which go towards saltsfying the cost offset requirements :m·: En,ploycrs will he allowed to change rosters at 12 hours notiu: where rcasonahlc: Meal allowance will only be payable after 2 hours overtime ha'.'> hcen worked ( in lieu of the previous I hour); Individual cmployccs may work up to IO hours per day by agreement wilh the l'mployc1, Thc spread ()f ordinary hours has hcen extended 10 6.00 a.m. lo 7.!Xl p.111. (an increase of I hour); Time off in lieu of overtime provisions arc 10 h..' varied lo allow for time off al ordinary time rates (in lieu of the previous provi,,on of hours off cakuh11ed at overtime r:lles); A maJority of employees may, by agreement with the employer, substiiutt: a day off at ordinary time rates for the districr agm:uhmal show day holid:1y which would then he worked at ordmary tune mies: Qualified Tc;1chcrs arc to au:cpt n,lfice of termination in acc(1Hlam:c wilh the scale set out in the /,u/uJtrwf Rl,fatwm !\/'I /'J9() (in lieu of the cum•nt 4 Wl•eks notice), The 1X hour wed, is to he phased-in over a 12 month period. The pm1ies wl.:rc unahk 10 agree aoout the hours of w1}fk pnwisions which should .ipply to qualified Teachers, previously cmcrcd by the Kindcrganen Tt•achcrs' Award State, who previously worked a 17 .S hour week (whil:h included .,o minutes per day paid meal hreak) On this unn:solvcd issue the Commission has dctcnnincd that th\' p:wment for the meal break will cease ,Ls from I fanuary 1997 and Imm that Jnic employees will he required to work (subject to what we ha~e to say hclnw ahout teaching hours and preparation time) for 37 .5 h_ours per _week Fmrn t January 1998 Teachers will work a .'\!I hour week m hne wllh all other employ1..~s (but. again, subject to what we say hclow ahout teachmg hours anti preparation time). The decision to alter the working hours lor Teach1.·rs has not hccn urriwd ut lightly. The entitlement to a paid thirty minute per da~ meal break has existed since the Award for Kin<lcrgmkn Teachers was lust made m 1975. From our ohservation~ of the indusll)', and an m1alysis of son.: earlier proceedings (including that of the then President Moynihan J, at 1_40 QGIG 167), it is apparent that .it least some Teachers have hcen 1equ1rcd to Ix responsible fnr children during the course of their meal h1cak. Hv this decision we intend that u/1 emplnyees employed under the "new" Child Care Industry Award State will be cnt11lcd to a thirty minute per day meal hrcak dumw which they arc not to he 1equin:d. or to he expected. to be in chargc of or 1~sponsible for children The thilly minutc per day meal break penml is to be tntally free of all duties. We propose to grant the ALHMWlJ ll'ave to re-visit the issue of a paid lllL'al break if it is ahk to b1ing evidence to the effect that employees arc !1ilt b..-ing providcd with a thirty rninutc per day meal hrcak during which they arc free of all duties. If such C\i,kncc comes to the lore we will give consideration to intnxlucing a paid meal b1eal in rcspect of all employees covered by the "new" Award. lkfinition of "Teacher" We were strongly pressed to introduce an clement 11110 the ddinition for "Tcacher". ,Ls detenmned by us in our decision of 22 March 1996, which would requifl'. a pc1'.'>lm who olhcrwise met the necessary crilcria to he "engaged a, such". In particular, Mr Moloney._ who rcrr~.sented I~ ()uccnsland Professional Child Care Centres Assorn~tion (()PCCCA). '.I~ ARC Developmental Leaming Centre Pty Ltd and ( arc Bear Child_ Cm.: Centre. and Mr Nanre who represented a range of Assoc1a11011s 1dent1h~d at the foot of this decision, presented detailed submissions in sup1x>r1 of this propo-;111011. We have considered their submis:-,ions most carefully but have dc1ennincd that we will not act to vary the definition :Ls dctcn11irw..·d by us 111 our earlier dceismn The evidence presented in the earlier proeeedrngs convinced us that the defmition needed to reflect :t,; fcw rcquiremenh a, possible but suflic1cnt to clearly pollray which employees arc Teachers and which arc not In our view, the piimary clements sci out in the cxisting definition viz:- That the employee holds a J or 4 year tiualification in early childhood studies; That the employee he registered with the Hoard of Teacher Education; and That the employee he ,equircd to deliver an educational program. arc the minimum necessary 10 enable all those imolvcd to detennin1.· whether an employee is a Teacher, or not. Tht: introduction nf a fourth clement (viz. that the employee be engagctl as such} adds a new dimension to the definition An employee might meet tht· three requi1emeots above but unless they arc actually told by their employer that they arc engaged as such they would not. on the proposed definition, be a Teadwr. We arc not prepared to allow a s1tu:111011 I\) develop where some employers may allcmpt to avoid (or evade) paying Teachers who arc "'required to deliver an educational program". We arc awarl' from om earlier experience, and what wc heard 111 the earlier proceeding~, that this matter ha,; been a source of longs_tamling disputation. The definition which WC introduced in our March decision w:L'> intended lo put an end lo such disputation We do not pmposc lO provulc a mechanism lo allow those who seek to avoid (or evade) their obhgat1011s to attempt lo utilise some new possihlc llX}p-holc. We have detcnrnned thar the dcfinition will remain unchanged Partial Exemption The employers sought to introduce the concept of an exemption rate such that an employee who wa, paid at a rate not less than 2S per cent above the appropriate class1fteation level should be exempt from the prov1s1011s of thl' Mixed Function. Hours of Work, Hrcaks and Overtime scctwns of the Awmd. These proposals were opposed hy Mr Recd on behalf of the ALHMWU The concept of an exemption rate is not new to awards of this_ Commission. A number of them were rcfcncd to dwing !he cour:-.e of argument including the Clerical Employees A ward State and the Retail Industry Interim Award State. On the ba,is of our consideration of the ,ubmissions put we have dctcnnined to introduce a limited fonn of nemption prim:ll'ily directed al the areas where we helicvc it to he mo~t relevant and most likely to be utili:-.\'.ll. Consequently. we have dctcnnined to introduce a :-.inglc exemption rate which will apply to all employees classificd at or below the lcvcl of Dll"cclor t Year qualifo:d, Year I, with such exemption rate hcing :-ct al !he IC\cl of D11cctor I year qualified Year I plus 25'7<•. The cxempt10n rate for each employee classified at the level of D1rcctor I Year qualified, y car 2 and above will be 2:'i% above the app,opnatc d:t,s1fa'alion level, for t'ach employee, from time to time. 22149_1.DOC 3 January, I 997 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 7 Enterpri."\e Flexibility Clause The panies were unable to agree on an appropriate Enterp~isc Flexibihty Clause. Mr Reed suggested that the appropnate clause 1s that which currently appears in the Award whereas the _employer parties suggested that the Commission's standard clause a, detemuned m the State Wage Case test case ( I 'i2 QGIG 43) should be the appropriate clause. After consideration we have dcterrnined that the appropriate clause should be that decided in the test case. Part-Time Employment The employer parties argued for a relaxation of the provisions dealing with part-time employment to allow for part-timers to be engaged for any number of hours each week as circumstances required. It was submitted that this would enhance the 0exihility of the industry and a<;sist employers to meet various exigencies a'i they arose. The employers also argued that the adoption of pmt-time provisions would act to remove the need for the engagement of ca<.uals which had often been a complaint of the Union. In this regard it was submitted that pan-time employment provided more pcrrnanency than did casual engagement and that it should be encouraged. The employer's claim was opposed by the ALHMWU which argued that the current provision had heen inserted only three ye~ ago following extensive negotiations between the parties and proceedings before Chief Commis~ioner Hall. It wa<; submined that the currem provisions were flexible enough to meet the employer's requirements and !hat they should be mamtained. Sub_1ect to the inclusion of a qualification that part-time employees shall have their entitlements calculated on a pro ratu ba'iis (which we believe is absent in the existing clause), and an adjustment to the hourly rate to reflect rhe pha\Cd reduction in hours to 38, we believe lhal the existing clause should be retmned. In our view, part-time employees have a right to be aware of the number of hours that they are required to attend for work in any one week and they should be free to plan their personal commitments around such obligations. There is already a provision in the Award which allows flexibility in that employees may extend their hours, without payment of overtime, provided that ,uch change is by agreement and recorded in writing. We think this to be ample flexibility. An absolutely unfettered 1ight of the employer to require part-lime empioyees to work variable hours, without any guarantees upwards or downwards, sits uncomfortably with the traditional notions of pmHime employment. This is particularly so where no penalty rate was proposed to counter-balance the claimed absolute discretion. If additional nexibility is required it can be accommodated through entcrpnsc bargaining. Part-Time Employment - Increments l'he Union sought that part-time employees would move to the next 111creme11t level upon their anniversary date irrespective of the hours worked in any twelve month period. The employers. on the other hand, sought that all part-time employees be required to work the equivalent of one year of full~time employment before they moved to the next increment. The existing provision in the Award is that part-time employees are required to work for 1,000 hours before they move to the next increment level. This provision ha, existed since 1987 and was a provision detennined by the Commis,ion ( 126 QGIG 356 at 357) on the basis that it wa<; "reasonable". ln circumstances where the provision h.t'i existed, apparently quite satisfactorily, for nearly a decade and in the absence of compelling rea,ons for it to be changed we believe that the provision should be maintained. In our view, balancing the arguments involved, the provision is indeed "re,t,onable". Casual Employment The employer parties sought to remove the 35 hour limit on casual employment. The claim wa, opposed by Mr Reed on behalf of the AUIMWU. The cxisting provision was inserted into the Award on l September 1993 and followed earlier discussions between the parties and proceedings in the Commission before Chief Industrial Commissioner Hall. In those proceedings there was substantial consent tu the clause claimed (at the time) by the predecessor to the ALHMWU but particular words in one part of the clause were vigorously opposed by Mr Moloney on hehalf of QPCCCA. In the end result the Chief Commissioner initially determined that he would not vary the Award in terms of the claim but, a, a consequence of further discussions and further proceedings, the A ward was ultimately varied to reflect the current wording. After considering this matter most carefully, including the decisions to which we were referred by Mr Moloney, we have determined that to remove the 35 hour limit would do nothing to contribute to permanency in the industry. Our perceptions are that the contrary would occur. In the circumstances we do not propose to remove the limit but will act to maintain the five hour differential between the maximum number of hours which a casual can work and the normal weekly hours of work. Consequently, the 1S hour limit will reduce to 34 from I January 1997 and reduce further to 33 from I January 1998. In making this determination we note that there is capacity for ca'iual employees to work for a full week in particular circumstances. Saturday Work The employer parties pressed the Commis..<.ion to vary the A ward to allow for ordinary work to be performed on a Saturday but at a penalty rate lo this regard, Mr Nance on behalf of his clients, proposed u 25% penalty whereas Mr Moloney, on behalf of his clients, proposed a 15% penalty. Both claims were opposed by Mr Recd on behalf of the ALHMWU. We find ourselves in some difficulty in reacting to this claim at this time. The proceedings are essentially associated with the four issues outlined above. The rationalisation of the Award, involving the introduction of standardised conditions, ha<, no application to this claim. Further, on the material presented to us, we have generally been satisfied that the cost offsets associated with the introduction of a 38 hour week have been met taking into account the agreed items and one or two others where there is no agreement but which we have determined. In our considered view the claim for the ability lo work ordinary hours on a Saturday falls outside the scope of the matters generally considered to be part of these proceedings. Further, we arc conscious of the need to encourage enterprise bargaining and to leave available for discussion matters which might be encompa<;sed under that heading. The submissions of both Mr Moloney and Mr Nance suggested that there were incre~ing demands for child care centres to be open on a Saturday and that it WiL<i not viable for centres to open at the moment becau~ of the penalty rates involved. However, those submissions from the bar table are not evidence and, whilst our own general knowledge might give credence to their submissions, we are not prepared to act a<; requested at the moment. Rather, we propose to leave this matter open for discussion at the enterprise level so ax to encourage individual workers, and their Union where appropriate, to neaotiate suitable conditions with their employer and which will suit each location. In the event that any such negotiations prove unfruitful we would be prepared to re-list the matter to consider the evidence of any uorea.'lonable rejection of any employer's approach to its employees 10 allow for ordinary hours of work to be worked on a Saturday, subject to the types of guarantees proposed in this case. Accordingly, we propose to grant leave to any industrial organisation of employers, or any applicant in these proceedings, to have that matter listed for future detcnnination should the need arise. Meal Breaks We have dealt, above, with the issue of paid meal breaks for Kindergarten Teachers under the heading "38 Hour Week". Under that earlier heading we also indicated that we would grant the ALHMWU leave reserved to raise the issue of paid meal breaks for all employees covered by the "new" Child Care Industry Award State if it wns able to bring evidence that employees were not being relieved of all duties during their meal break. We again stress that it is our expectation that all employees are to be allowed to enjoy a thirty minute unpaid meal break during which they are to be free of all duties. Rest Patises - Casuals 22149_1.DOC -- 2 of 3 -- 8 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 3 January, 1997 On behalf of his clients Mr Moloney proposed that casual employees who worked a minimum of four consecutive ordinary hours but less than eight consecutive ordinary hours shall receive a rest pause or ten minutes duration. Where the employee worked a minimum of eight consecutive hours they would he entitled to a res! pause of ten minutes duration in the first half and the second half of the period worked. The claim was opposed by Mr Recd who argued for the same entitlements as weekly employees. We have detcm,ined that in lieu of the reference to eight hours above the quantum of 7.6 hours should he included instead. Such provision would then make the clause consislent with that which appears in the Retail Industry Interim Award State, one of the Awards of this Commission where there is a very high incidence of casual employment Given that the provision has worked successfully in that A ward for some considerable period of lime it is an appropriate reference point which we can successfully draw on to determine this disputed mailer. Sick Leave - Kindergarten Teachers In our decision on 22 March 1996 we indicated:- "In our view then: 1s no logical 1eason why conditions of cmplnymcnl should he different for different types of employee within each sector, except as may he necessary 10 reflect the professional or other aspects of the position occupied.". Kindcrgat1cn Teachers employed under the Kindergarten Teachers' Award State have, since the first Award in 1975, hccn entitled to ten days sick leave per annum Our research docs not reveal the b,t-.is upon which such quantum may have been detcnnincd or agreed in circumstances where !here is to he a standardisation of conditions for all employees covered by the "new" Child Care lndus1ry Award State (including Teachers) we can identify no good reasons, other than historical, why the difference in sick leave should remain. The d1fforcncc is ccrtamly not related to the "professional or other aspects of the position occupied" Accordingly. we propose that the sick leave credit cu!Tcntly available to individual Tcache1s at 31 December l 996 should 1cmai11 ~uHI he tran~krrcd as a direct credit which is available for use by the individual Teacher concerned at any stage in the future. When each Teacher's anniversary date comes around in the period between I January 1997 and 3 l December 1997 the Teacher will he credited with nine days of sick leave (at 7 .5 hours per day) in lieu of the previous ten days entitlement. On their anniversary next occu1Ting after l January 1998 they shall he credited with 8 days sick leave on the hasis of a 38 hour week (ie 60.4 hours per annum). Lol·ality Allowances for Teachers This matter is one which troubles us most deeply. As in the mailer immcd1atcly above, our research has not revealed any reason for the introduction of locality allowances for Teachers. We suspect (we cannot put it any more highly than that) that the provision wa,s originally intf(xluccd so that Kindergarten Tcacheh received the same entitlements ,L~ Kind.:rgartcn Teachers in the public sccto,. There i, no other apparent reason as to why the hencfit would have been introduced. We arc also conscious of our statement (which we repeated twice above) Iha! there was no logical reason why conditions of employment should he different for different types of employees. However, we arc conscious that this decision will severely impact upon the existing benefits of Teachers ,md that there is a need to nms1dcr the interests of employees likely to he affected ,l, well ,t, to employers and the public generally. We arc also conscious that Teachers arc but one classification of employee under the "new" Awanl In all of the circumstances we have detennincd that Teachers should continue lo receive the locality allowance in the short tcnn hut that, unless compelling reasons arc advanced as lo why it should not happen, the allowance will phase out over a four ( 4) year period. W c think that such decision represents an appropriate halancc between the interests of Teachers, other classifications of staff covered by the "new" Awa1d, ;md those who query the logic for the original introduction of the locality allowance ;md the logic for its continued existence. In making such decision we have hecn mindful of the sigmficant changes which will result in the overall package of conditions receivable by Teachers as a consequence of the decision to move their award coverage to that of the "new" Child Care Industry Award - State. We are also conscious of the fact that thc,e should not be any differing treatment for Teachc,s who were previously cla~~ified under the Kindergarten Teachers' Award - State and those who subsequently met the dcfimtion of Teacher as dcte1111ined by us in our 22 March ! 9% decision. We therefore make ii plain that It would he our expectation that any Teacher who meets the definition of ·'Teacher" ~L~ determined in our 22 March 1996 decision will he paid the locality allowances translated into the Chilo Care lndust1y Award State from the Kindcrganen Teachers' Award State. The phase out of the locality allowance will occur over a 4 year period commencing with a onc-quai1er reduction on I January 1998, and continuing with fu11her one-quarter reductions on l January in each of the succeeding two years. viz. l 999 and 2000 ( with loca!ily allowances to cease completely on 31 December 2000. unless otherwise dctcnnincd by the Commission hefon: that date) Unit Allowances for Directors In our decision of 22 March 1996 we directed the parties to con fer about Director's allowances given that very little infonnation had hecn put lo us during 1hc course of the original pnx:ecdings. Sadly, the parties have had little discussion about the topic and they were also very scant in their ~uhmis,ions to us. on this topic, in the most recent proceedings. Faced with such a position we can only a,sume that the unit allowances were originally intrmluced for good rcac;on and were designed to compensate Directors, who were also qualified as Teachers, for the additional duties lhcy were required to perform and the responsibilities which they were required 10 assume. Accordingly, on the basis that there has hccn nothing advanced to us which would suggest thal the provisions arc inappropriate, we determine thal the existing unit allowances set out in clause 6 of the Kindergarten Teachers' Award - Slate should also he reflected in the Child Care Industry Award State. The decision is, obviously, subject to the provision that the Dircc1or is also a three or four year trained Teacher. Professional Development Leave for Teachers Professional development leave was first introduced into the Kinderga11cn Teachers' Award State in l9H7 (126 QGIG 354 at 356) In that decision the Commission determined that it would he appropriate fm Teachers who were engaged in centres which did not observe traditional (school) vacation periods to he given appropriate time to panakc in professional development programs. In our con~idcrcd view, cons1dcnng the l11111ted material which has hecn advanced in the current proceedings hut having regard to the extensive analysis of previous decisions recorded in our 22 March 1996 decision we have determined to continue the entitlement to professional development leave for all Teachers employed under the "new" Child Care Industry Awa.rd State. Teachers would he those who meet the definition described ahovc. Although we were urged to limit this enlitlemcnl to Teachers engaged as at the date of this decision only so long a,~ they remained with their existing employer we have detcm1incd that this matter falls under the general exception (ahovc) abm1t standardised conditions on the ha.,is that it is related to the "profc~sional or other aspects of the position occupied" On that basi~ ii should he an cntillemcnt of all Teachers whenever, and wherever, employed. "Non-Contact Time" for Teachers Under the existing Kindergarten Teachers' Award - State. Teachers arc engaged for 37 .5 hours per week (including 30 minutes per day a., a paid meal hrcak) and arc only required to teach educational development progra,m for 27 ..'i hours per week. We have determined (above) that the entitlement 10 a paid meal break shall cease as from I fanua,y 1997 We were urged by Mr Recd to continue the provision whereby Teachers were not required to work more than 27 .5 hours teaching educational development programs. He also urged us to define that two hours of the other allcndancc time for Teachers be set ;L~idc for prn)!ram development and other preparation work. Mr Moloney urged us to take note of the decision of the then President. Moynihan J, recorded at 140 QGIG 167 wherein His Honour had detennined that Teachers may be expected to perfomi duties other than teaching during the whole of the hours of their work outside of the 27.5 hollls dU1ing which they might he required to teach. 22149 I.DOC 3 January, 1997 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE Prior to 1987 the Award provided that not more than 27 .5 hours of the Teacher's hours of duty, of 37.5, would he involved with children. This was relaxed in the Commission's deci~ion reported at 126 QG!G 354 so that Teachers would not be required to he involved in !he teaching of an educational dcvciopmcnt program for more than 27 .5 hours. The relaxation was designed to provide greater flexibility to administrators of child care centre~ but did not clearly state how the hours could be utilised. Having regard to our decision (above) to discontinue the paid thirty minute meal break from I January 1997 and to extend the hours of Teacher~ to 38 from I January l 998 we believe that steps are warranted to now provide a fixed quantum of lime which is to he allowed to Teachers for the planning and preparation of the educational programs which they are required w delive, to children enrolled at that centre. We have fixed such am,Junt a.<; two hours per week, which is not to be part of the 275, hours which they may be required to teach, during which the Teacher is to he free 1Jf all other duties and to he allowed to spend time in the planning and prcparnt1011 of programs a.<; above dcsc1ihcd. We also think that during this same two hour period Teachers should he prepared to make themselves available to give guidance, advice and a.~,istance rn other »taff within child care centres in the preparation and conduct of their developmental programs. Recording of Leave Entitlements During the course of the presentation of submissions the parties were a,-;kcd their reaction to a proposal that credits for such items as sick leave and annual leave should he expressed in hours, rather than days. Each of the parties agreed that that was an appropriate suggestion. Accordingly, we require that the draft new award presented to us be amended in the appropriate areas to provide for all leave and other .:ntitlements to he expressed in hours. We believe that such steps will lessen the likelihood of argument in circumstances where working days might vary from day to day or week to week or between staff. Such translation from days to hours should recognise the phase-down m the hours for persons covered hy the "old" Child Care Industry Award State a,~ well as the pha,-c-up for persons previously covered by the Kmdcrg_artcn Teacher~'. Award State. The only exception to that phas;c-up w,11 he m the area of sick leave where the hours of unused sick leave al I January I C/97 will remain constant. However, annual leave credit\ for Teachers should be adjusted at I January 1998 to reflect the increase in their working hours from 37.5 to 38. Finalisation of New Award The partic~ are a.,ked to urgently confer about the production of an agreed Awmd which gives effect to our decision. We require that the pai1ics produce a nt•w, hopefully agreed, Award within thirty-five days of the date of release of 1h1s _decision. ln the event that there arc items not agreed the C'omm1ss1on_ Will convcn~ an immediate conference under the chaim1anship uf Conumss1oner Bloomfield 111 order to discuss the outstanding issues. If agreement cannot be reached in conciliation proceedings chaired hy him, this Hench will ~Ille the wording of disputed mal!ers acting on reports provided to It by Com1mss1oner Bloomfield and without the need for fm1her proceedings. The Co1111nission detcnnines and orders accordingly. It DEMPSEY, Commissioner. B.J NUTTER, Commissioner. A.L BLCX)MFIELD, Commissioner Ap1iearun1·es:- Mr R. Recd for the Australian Liquor, Hospitality and Miscellaneous Workers U111on, Queensland Branch, Union of Employees. ~r S' Nance . for the Queensland Chamber of Commerce and lndu~try ',mted, lndus~nal Orgamsat1011 of Employers, the Quality Independent Child. Care Centres Association, the Childrens Services Employers Association Queensland Union of Employers and the Local Government Associatmn of Queensland (lncorporatedi. Mr L Moloney. of Livingstones Australia, with him Ms K. Daniels, for the gueensland Professional Child Care Centres Association, the ABC cvelopmental Learning Centre Pty Ltd and Care Rear Child Care Centre. Mr B. GcxJdman for the Brisbane City Council. Clas.,ification Assistant. Unqualified Year I Year 2 Year 3 Assistant. Minimum I Year Qua! ified Year l Year 2 Year .l Group Leader. Unqualified Yem I Year 2 Group Leader, I Ycar Quaiified Year I Year 2 Year 3 Group Leader, Minimum 2 Year Qualified Year I Year 2 As.,istant Director Year l Year 2 Director Unqualified Year I Year 2 Director l Year Qualified Year I Year 2 Director 2 Ycars Qualified Year l Year 2 Year 3 Year 4 Director .3 Years Qualified Year I Year 2 Year 3 Year 4 Year 5 Year6 Year 7 Year 8 Year9 Operative Date: I January 1997 Schedule Relativity Yr) 80.50 82.50 85.00 87.50 90.00 92.50 92.50 95.00 97.50 100.00 102.50 105.00 107.50 ll0.00 112 ..50 112. IO 115.40 115.40 I 19.40 121.70 124.00 127.20 130.70 124.00 127.20 130.70 134.20 14130 148.30 155.40 161.30 167.20 Decision - Rescission and New A ward Conditions Child Care Released: l I December 19% 9 Ultimate Wage Rate Per Weck $ 359.90 368.20 378.60 387.H0 399.50 409.90 409.80 4:20.60 430.00 44 I .20 451.60 462.10 472.50 482.90 493.40 491.60 505 30 505.30 522.00 531.70 54L20 554.50 569.20 541.20 554.50 569.20 584.00 613.40 642.80 672.30 696.90 721.50 Wages and 22149_1.OOC -- 3 of 3 --