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QUEENSLAND INDEPENDENT EDUCATION UNION INDEPENDENT EDUCATION UNION OF AUSTRALIA – QUEENSLAND & NORTHERN TERRITORY BRANCH BRISBANE 346 TURBOT ST SPRING HILL QLD 4000 PO BOX 418 FORTITUDE VALLEY

Phone: 07 3839 7020 Fax: 07 3839 7021 Freecall: 1800 177937 Email: enquiries@qieu.asn.au Internet: www.qieu.asn.au ABN: 45 620 218 712

Wednesday, 23 February 2011

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Early Childhood Education All Employees

CHAPTER BRIEFING No. 12 Colleagues Kindergarten employers without a contemporary collective agreement are very vulnerable to their conditions being undermined especially in regard to work hours.

Those employees with an agreement have the protection of those provisions. However, in the case of Australian Community Services Employers Association (ACSEA) agreement centres, members will have to ensure that their work hours provisions are not expanded without compensation.

Action is required in all centres to ensure that your work hours and conditions are protected.

Why a new agreement An enterprise agreement is a legally binding document which provides the minimum wages and conditions for employees covered by that agreement. For more than 15 years all employees in Early Childhood Education have relied on an agreement (as opposed to the Award) for their wages and conditions.

Whilst all kindergartens will be covered by an agreement (some are old ‘Preserved State Agreements), we believe that over 100 kindergartens do not have an up-to-date agreement.

Where a contemporary agreement does not exist the current level of wages and the current entitlement to Long Service Leave may be threatened.

Action:

If you do not have an up-to-date federal agreement, please contact your union. We will approach your employer with a request to commence negotiations. The legislation contains a range of options to ensure that an employer responds to such a request.

Status of negotiations Crèche and Kindergarten Association An Agreement is in place which provides for a 4% wage increase from 1 July 2011, and which protects the hours of work for teachers. Existing kindergartens will provide (for 2011) an educational programme for 13.75 hours per week. A new kindergarten (part of the additional 240) is required to deliver 15 hours, but the Agreement contains an elaborated calculation which

ensures that teachers are not required (when averaged over a year) to increase their contact hours.

Whilst further negotiations will be required for 2012, the model is now in place and employees trust that the negotiations later this year will proceed smoothly.

Agreement with ACSEA A new Agreement will protect the existing conditions for employees, as well as provide a 4% wage increase from 1 July 2011. This Agreement will shortly be the subject of a ballot of employees in kindergartens which choose to be represented by ACSEA. This agreement only has a nominal life until 31 December 2011. Consequently negotiations for a new Agreement will need to occur later this year.

Further information in relation to ACSEA is provided later in this briefing.

Lutheran Kindergartens The Lutherans have committed to both pay a 4% wage increase from 1 May 2011 and to protect the hours of work for teachers. Further, a commitment has been given that negotiations for a formal Agreement will recommence shortly.

The Queensland Lutheran Early Childhood Services Inc (QLECS) committed to contacting your union in February to schedule further negotiations for a new Agreement. The resumed negotiations are to occur in term two of 2011. This follows QLECS’s unilateral suspension of negotiations late last year.

Your union has consistently fought to maintain the comparability of wages and conditions for employees between Lutheran schools and Lutheran kindergartens. An example is the wage increases for employees in Lutheran kindergartens. For more than a year your union sought a 4% wage increase operative from 1 May 2011. QLECS initially said they did not know what they could offer, but then proposed a 2.9% wage increase.

It was therefore an achievement that, in October last year, QLECS acceded to the Independent Education Union of Australia – Queensland and Northern Territory Branch (IEUA-QNT) position on wages.

We now look forward to recommencing our negotiations with QLECS for Agreements covering Lutheran kindergartens.

Individual Kindergartens A significant number of individual kindergartens have signed a new federal enterprise agreement.

Most of these agreements will need to be reviewed over the next twelve months to reflect government requirements regarding the duration of the educational programme and/or a wage increase in 2012.

15 hour programme Where a kindergarten provides a 15 hour educational programme the hours of work provisions should be reflected in the formal agreement. This situation exists in the C and K Agreement.

However, in the ACSEA Agreement the hours provision reflects the existing entitlement, that is (for a teacher) a maximum of 27.5 hours teaching an educational programme and 10 additional hours of other duties.

Consequently, in a kindergarten which will be covered by the ACSEA Agreement, and one teacher provides two 15 hour programmes, an ‘individual flexibility arrangement’ must be signed by both the employer and the employee.

Where two teachers work part time, each teacher must be paid for the appropriate number of hours spent teaching an educational programme and the additional hours of ‘other duties’.

Individual flexibility arrangements – employee must be better off It is a legal requirement for an individual flexibility arrangement that “the employer must ensure” that any individual flexibility arrangement results “in the employee being better off overall” than the employee would be if no arrangement was made.

An individual flexibility arrangement can be used to implement an averaging arrangement whereby the additional contact hours are banked to allow for blocks of non-contact time (or time off) to be taken by the teacher.

The fundamental issue is the number of hours spent teaching an educational programme for the year. In previous years teachers would have taught an educational programme for (nominally) 1127.5 hours in the year. This then would be the maximum yearly number of hours which could be required under an averaging arrangement.

A fact sheet dealing with individual flexibility arrangements is attached to this briefing, together with a ‘model’ arrangement which will allows for averaging of hours. .

Any proposal which would increase contact hours from 27.5 to 30 hours per week without a quantifiable benefit in return would be illegal. Similarly, a reduction in non-contact time without a compensating benefit is not allowed.

Whilst contact time and non-contact time are key issues for teachers, it is also the case that Assistants can not be required to increase their workload (or decrease their conditions) without recompense.

It is a provision of the Fair Work Act that an employee can not be coerced into signing an individual flexibility arrangement. An employer can not advise an employee that their employment is conditional on the employee signing such an arrangement.

Action:

Where a teacher is asked to provide an educational programme for 30 hours in a week, that teacher needs to ensure that an individual flexibility arrangement is signed that protects their hours of work. Please see the attached information.

Attitude of the Queensland Government A letter form the Queensland Minister for Education late last year stated: “It is a requirement of the new Queensland Kindergarten Funding Scheme that services offer (from 2012) a 15 hour per week 40 weeks per year kindergarten program. I note that it may be necessary for additional teaching hours to be delivered as a result of this. Employees in the Early Childhood Education sector should not be required to work additional hours without the employer providing additional recompense or compensation.”

(Underlining ours) The full letter is available on our web site at: www.qieu.asn.au/ece ACSEA – the sad tale of missed opportunity and misrepresentation continues The negotiation late last year of a proposed enterprise agreement provided an opportunity to work collaboratively on behalf of community kindergartens, children and staff.

Misrepresentation Unfortunately ACSEA’s response to this opportunity has evidenced both a lack of basic manners and a lack of proper process. In early February this year ACSEA published a document which contained the logo of your union. ACSEA did not have the permission or authority of the IEUAQNT to use its logo.

That unauthorised use of the IEUA-QNT logo could cause employees or committees to incorrectly believe that the IEUA-QNT supported ACSEA’s request for committees to appoint that organisation as their bargaining representative.

ACSEA has also (incorrectly) stated that the proposed Agreement “included 2 options which will sit outside the Enterprise Agreement in relation to the 15 hours model”.

The ACSEA position Normally we would not bother to counter the incorrect statements made by ACSEA; these are so numerous and so frequent. However, the nature of recent communications requires that a record of negations be provided to employees.

ACSEA stubbornly refused to include specific provisions in the Agreement to address the consequences of the 15 hour educational programme. Therefore, in kindergartens covered by the ACSEA Agreement there is only one mechanism to handle the 15 hour model, and that is through an individual flexibility arrangement.

As noted earlier in this briefing, an individual flexibility arrangement must result in the employee being “better off overall” when compared to the Enterprise Agreement. It is unfortunate that ACSEA’s published statements incorrectly describe the test to be applied to such an arrangement.

Assistants ACSEA’s statement that the IEUA-QNT has raised the concept of having the wage rates for assistants determined by Fair Work Australia (FWA) is partially correct. However, ACSEA has not had the integrity to also state that they absolutely refused to commit to such a process.

It is a requirement of the new Fair Work Legislation that where an application is made to have FWA determine the wages of employees covered by an agreement, both parties must agree to that process. It has been the refusal of ACSEA which has prevented such an application.

The suggestion by ACSEA that assistants should consider another union simply demonstrates the moral poverty of ACSEA. Assistants are well aware that their wages under the Agreement are higher than the Award wages in child care. In addition assistants are paid for 52 weeks on the basis of 41 weeks of work. This provision does not exist in child care.

Further information or assistance If you have any questions in relation to the matters identified in this briefing please do not hesitate to contact your union.

Actions: 1.

Without a current agreement: Please contact your union to commence the process of achieving an agreement which will protect your exist wages and conditions.

2.

ACSEA Agreement, 15 hour educational programme: An individual flexibility arrangement which ensures that the teacher is better off must be signed with the employer.

Kind regards

John Spriggs Senior Industrial Officer

Draft Individual Flexibility Arrangement 1

This Arrangement is made between: Name of Employee: Name of Employer:

2

This arrangement will commence operation on: [insert date]

3

The provision of the Enterprise Agreement which is affected by this individual flexibility arrangement is: Clause 2.6 (hours)

4

Clause 2.6 is varied to allow the hours of work of the employee (both the hours spent teaching an educational programme and non-contact hours) to be averaged over a year.

5

The employee will be better off for the following reasons: (a)

the total number of hours spent teaching an educational programme over the year will not exceed 1127.5; and the employee will receive at least 410 paid hours for non-contact time over the year; and the employee will receive ‘blocks of time’ either for non-contact time or as time off at times which suit the employee; and the detail of the calculation of the employee’s time is shown in the Schedule below.

(b) (c) (d)

6

It is acknowledged that either the employee or the employer can terminate this arrangement by giving 28 days notice. (The 28 day period can be shortened by mutual agreement.)

Where this arrangement is terminated the averaging arrangement will cease to apply and the provisions of Clause 2.6 of the Enterprise Agreement will re-apply.

7

Signed: Date: ………………………

Employee

Schedule:

………………………..

Employer

Details of the implementation of the averaging provision for 2011

1

The total number of contact hours for the year will not exceed 1127.5 (27.5 x 41).

(It is noted that in previous years the employee provided an educational programme for 41 weeks.)

2

Whilst the employee may provide 30 hours teaching an educational programme (contact time) in a week, the employee’s total contact hours will be reduced by: (a) (b) (c) (d)

X pupil free day(s) at 5.5 hours each (= XX contact hours) Y non-contact hours (= YY contact hours) [If applicable, any other method of providing non-contact time is to be recorded] The number of weeks where children attend the kindergarten is to be reduced from 41 to 40.

3

The nominal contact hours of (40 x 30) 1200 is reduced by subtracting XX and YY from the figure of 1200. The subsequent total will not exceed the figure identified in paragraph 1 of this schedule.

4

The pupil free days, the pupil free week, and the additional non-contact hours will be arranged by agreement between the employee and the employer.

FACT SHEET Individual Flexibility Arrangements Wednesday, 23 February 2011

KEY ISSUES

The requirements of an individual flexibility arrangement are as follows:

 The arrangement must be genuinely agreed by the employee and the employer.

2.3

Individual Flexibility Clause

2.3.1

An employer and employee covered by this enterprise agreement may agree to make an individual flexibility arrangement to vary the effect of terms of the agreement if:

 The arrangement must result in the employee being better off overall compared to the employee’s employment under the Enterprise Agreement.  The employee can terminate the arrangement by giving 28 days written notice.

(a)

(b)

(c) 2.3.2

The employer must ensure that the terms of the individual flexibility arrangement: (a) (b) (c)

2.3.3

(d)

(e)

IEUA-QNT Phone: (07) 3839 7020 Fax: (07) 3839 7021 Freecall: 1800 177 937 Email Enquiries: enquiries@qieu.asn.au Internet: www.qieu.asn.au

are about permitted matters under section 172 of the Fair Work Act 2009; and are not unlawful terms under section 194 of the Fair Work Act 2009; and result in the employee being better off overall than the employee would be if no arrangement was made.

The employer must ensure that the individual flexibility arrangement: (a) (b) (c)

CONTACTS

the agreement deals with 1 or more of the following matters: (i) arrangements about when work is performed; (ii) overtime rates; (iii) penalty rates; (iv) allowances; (v) leave loading; and the arrangement meets the genuine needs of the employer and employee in relation to 1 or more of the matters mentioned in paragraph (a); and the arrangement is genuinely agreed to by the employer and employee.

is in writing; and includes the name of the employer and employee; and is signed by the employer and employee and if the employee is under 18 years of age, signed by a parent or guardian of the employee; and includes details of: (i) the terms of the enterprise agreement that will be varied by the arrangement; and (ii) how the arrangement will vary the effect of the terms; and (iii) how the employee will be better off overall in relation to the terms and conditions of his or her employment as a result of the arrangement; and states the day on which the arrangement commences.

2.3.4

The employer must give the employee a copy of the individual flexibility arrangement within 14 days after it is agreed to.

2.3.5

The employer or employee may terminate the individual flexibility arrangement: (a) (b)

by giving no more than 28 days written notice to the other party to the arrangement; or if the employer and employee agree in writing — at any time..