Miscellaneous Workers - Kindergartens and Childcare Centres &c (State) Award (No 2), Re [2006] NSWIRComm 102 (30 March 2006)

Last Updated: 30 March 2006

NEW SOUTH WALES INDUSTRIAL RELATIONS COMMISSION

CITATION : Miscellaneous Workers - Kindergartens and ChildCare Centres &c (State) Award (No 2), Re [2006] NSWIRComm 102

FILE NUMBER(S): IRC 5757 and 6500

HEARING DATE(S): 16/03/2006

EX TEMPORE DATE: 16/03/2006

PARTIES:

APPLICANTS:

Liquor, Hospitality and Miscellaneous Union, New South Wales Branch (In Matter No IRC 2004/5757)

Employers First (In Matter No IRC 2004/6500)

RESPONDENTS:

Australian Child Care Centres Association

Association of Quality Child Care Centres of NSW Inc

Employers First (In Matter No IRC 2004/5757)

Catholic Commission for Employment Relations

Liquor, Hospitality and Miscellaneous Union, New South Wales Branch (In Matter No IRC 2004/6500)

Livingstone Australia

JUDGMENT OF: Wright J President Walton J Vice-President Schmidt J McLeay C

LEGAL REPRESENTATIVES

Mr N Quinn

Liquor, Hospitality and Miscellaneous Union, New South Wales Branch

Mr T McDonald and Ms D McManus

Employers First

Ms B Kenneally

Agent for Livingstones Australia

Association of Quality Child Care Centres of NSW Inc

Australian Childcare Centres Association

Ms A Smith

Catholic Commission for Employment Relations

CASES CITED: Secure Employment Test Case [2006] NSWIRComm 38

Family Provisions Case [2005] NSWIRComm 478

LEGISLATION CITED:

JUDGMENT:

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

FULL BENCH

CORAM: Wright J, President

Walton J, Vice President

Schmidt J

McLeay C

Tuesday 16 March 2006

Matter No IRC 5757of 2004

MISCELLANEOUS WORKERS KINDERGARTENS AND CHILDCARE CENTRES &c (STATE) AWARD

Application by New South Wales Australian Liquor, Hospitality and Miscellaneous Workers Union, New South Wales Branch for a new award

Matter No IRC 6500 of 2004

MISCELLANEOUS WORKERS - KINDERGARTENS AND CHILDCARE CENTRES (STATE) AWARD

Application by Employers First for a new award

DECISION OF THE COMMISSION

[2006] NSWIRComm 102

(ex tempore)

1 We propose to give a short ex tempore decision in this matter. We should indicate we do not propose to give extensive reasons because the reasons for deciding the matter in the way we have will emerge sufficiently from the discussions which took place during the course of argument earlier today between the advocates and the Full Bench, which are recorded in today's transcript.

2 There are five issues that require determination and there is one additional matter which requires some clarification. We will deal with those matters seriatim.

3 The first matter is the proposal by Employers First to delete subclauses 4(i)(d) and (e) of the proposed Award which relate to the form of the provision in clause 4, Contract of Employment, relating to probationary employment. We consider that this matter is dealt with in the agreement between the parties which was the subject of a consolidated document which became Exhibit 112 in the proceedings. That document sets out on page 4 of it what we consider to be the relevant part the agreement between the parties. We therefore consider the approach put forward by Employers First is the correct one. The award made should reflect that situation.

4 The second issue relates to the proposal by Employers First which was put at one point by reference to another proposal, that is, by deleting clause 9(i)(c) of the earlier union draft, which would involve deletion of the reference in the award to the absorption of the State Wage Case 2005 increases. As we understand the situation, that is a provision which occurs in the award replaced by the present award and came into the award in August 2005 when the award was then varied. We consider it would be inappropriate to delete that provision, although we acknowledge its significance may largely be historical.

5 The third issue relates to the proposal by Employers First that a new clause 39, Settlement of Award, be included in the award. That is a provision in the same terms as included in the Pre-School Teachers Awards as a result of the decision of the Commission, which implemented the consent arrangements in those matters between the parties: see Re Teachers (Non-Government Early Childhood Services Centres Other Than Pre Schools) (State) Award [2006] NSWIRComm 4.

6 We consider it would be inappropriate to include in the new award the clause in the terms proposed by Employers First. That proposal is rejected.

7 The fourth issue relates to the proposal by the LHMU to include in clause 5(ii) a notation in the following terms:

“Notation: An ‘emergency’ must be given its ordinary meaning. It is not to be understood to comprehend routine events, such as an employee having to remain at the end of their rostered hours, when a parent fails to arrive on time to collect a child. Such work, if required, will involve overtime to which the award overtime provisions will apply. Any dispute as to the existence of an emergency will be dealt with in accordance with the disputes procedure of this award.”

8 That provision is modelled on paragraph [280] at pages 95 to 96 of the Full Bench decision of 7 March 2006. We consider it is appropriate to include that provision in the award. It reflects the approach we took when we decided that aspect of the case and will assist the implementation of the award. The notation proposed by the union should be included in the new award.

9 The fifth issue relates to the proposal by Employers First that clause 3(iii) be deleted. That provision is in the following terms:

“Clause 3(iii): casual employee - means an employee engaged and paid as such for a period of not more than twenty (20) consecutive working days for each engagement.”

10 The proposal by Employers First, supported by other employers, is that in the light of the insertion in the award of clause 8, Secure Employment Provisions, clause 3(iii) should be deleted. We consider that it would be inappropriate for this Full Bench to deal with that issue since the matter was considered by the Full Bench in the Secure Employment Test Case on 14 March last and may be considered by that Full Bench at the resumption of the hearing before it next Tuesday 21 March 2006. In the circumstances we consider the appropriate approach is as follows:

1. The parties should confer urgently as to what steps, if any, should be made to vary this award in the light of the issues that have now arisen.

2. The matter be raised again before the Full Bench in the Secure Employment Test Case proceedings in the proceedings commencing at 11 am next Tuesday, 21 March.

We so order.

11 The final matter relates, as indicated earlier, to a matter of clarification. It is the question whether the general order made in the Family Provisions Case should be included in the award. We consider it should. We note, however, the only reason it has not been included is because of the need to check the precise words of the clause required. We therefore propose the following course. The Miscellaneous Workers Kindergarten and Childcare Centres (State) Award should be made in the terms provided to us subject to the matters we have ordered or clarified today. The award made shall include a Family Provisions clause as earlier referred to. Any issues that cannot be resolved by the parties’ agreement may be dealt with by the Registrar on settlement of the minutes, or by reference to a member of this Full Bench.

12 The award made, as we indicated in paragraph [348] of our decision of 7 March, is to be known as the Miscellaneous Workers Kindergarten and Childcare Centres &c (State) Award 2006, which shall operate from 7 March 2006 and remain in force for a period of three years.

13 The award rescinds and replaces the Miscellaneous Workers Kindergarten and Childcare Centres &c (State) Award published 2 February 2001 and all variations thereof.

14 The union shall bring in a further version of the award in both electronic and hard copy form.

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LAST UPDATED: 29/03/2006