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Giving more funds to kindergartens than to other centres unlawful
2 years 1 month ago #916
In the eyes of the law, there is no difference between kindergarten and other teacher-led ECE centres and it would seem that kindergarten teachers are no longer covered by the State Sector Act. Despite the legal position, the Ministry of Education’s ECE Funding Handbook gives more funds to ‘kindergartens’ than it does to other teacher led ECE centres.
The most significant and immediate implication of this situation is that the kindergarten teachers’ collective employment agreement cannot be renegotiated with its current parties.
This imperils their pay parity with the primary sector.
In a policy paper (to obtain a copy of the full paper see the bottom of this page) I have proposed that some simple amendments to the State Sector Act be made to bring in all charitable ECE services whose charitable purpose includes early childhood education. These amendments, which will allow the collective agreement to be re-negotiated, should probably have been actioned as consequential amendments when Section 120 of the Education Act was repealed. Including all ECE teachers in a fair remuneration system, whilst desirable, would be more complex to achieve. A rapid amendment is needed in order for the (Kindergarten) collective agreement to be able to be re-negotiated with parties who can commit to continued pay parity with the primary sector.
Is There Such a Thing as a Kindergarten?
The term ‘kindergarten’ is not defined in The Education Act 1989, the State Sector Act 1988 or the Education (Early Childhood Services) Regulations 2008. Whilst the Regulations make no reference to a ‘kindergarten’ at all, both Acts still contain some references to the term ‘free kindergarten’ but link this term to a definition in Section 120 of the Education Act which has been repealed. These references seem to have been related to teacher registration and superannuation matters. In addition, in its Section 348 the Education Act has a definition of ‘early childhood education and care service’ which includes “a free kindergarten that is an early childhood service whose licence permits no child to attend for a period of more than 4 hours on any day” (my emphasis). So, whilst there is no definition of a ‘free kindergarten’ per se, it is clear that, if a service has a licence that permits a child to attend for more than four hours on any day, then it is not a ‘free kindergarten’. Very few kindergartens are still called ‘free kindergartens’, and Dr Sarah Alexander confirms that the last remaining sessional kindergarten, Ponsonby Kindergarten is now an all-day licensed ECE service (click here to see the Open Letter published by ChildForum
and signed by many within the kindergarten and ECE sector concerning changes and calling for preservation of ‘free kindergartens’).
The word ‘kindergarten’ is not trademarked at the NZ Intellectual Property Office. Given this and the fact that no legislation defines the term ‘kindergarten’ there would seem to be no legal impediment to any ECE service changing its name to include the word ‘kindergarten’ (and indeed there are many private and community kindergartens not under a Kindergarten Association).
State Sector Act
Many kindergarten associations, including the umbrella body NZ Kindergartens, believe that their teachers are covered by the State Sector Act. This belief is based not only on how things used to be historically but also on the following flowchart provided by NZ Kindergartens (see the Attached Document)
The flowchart shown in the attached document (in which RKA stands for Regional Kindergarten Association) poses three questions to test whether or not teachers are in the “Education Service” covered by the State Sector Act: Question One: Referring to the Education Act, section 310 this question asks: “does RKA Member have a premises used regularly for education or care of 3+ children under 6 years, by the day or part day, but not for 7 continuous days?”
For clarity, whilst the flowchart says “3+ children” the Act says “3 or more children”, so it relates to quantity of children, not age.
Comment: This section of the Education Act defines what an “early childhood education and care centre” is. Section 309 states, in part; “early childhood service means an early childhood education and care centre, home-based education and care service, or hospital-based education and care service”. Therefore an “early childhood education and care centre” is automatically also an “early childhood service”. Question Two: Referring to the Education Act, section 348 this question asks: “is RKA Member controlled by a free kindergarten association founded for the purpose of establishing and maintaining a kindergarten(s)?”
Comment: This section of the Education Act contains definitions related to teacher registration. It includes the following definitions: early childhood education and care service means—
(a) a free kindergarten that is an early childhood service whose licence permits no child to attend for a period of more than 4 hours on any day; and
(b) any other early childhood service that is declared by regulations made under section 69(2) of the Education Standards Act 2001 to be an early childhood education and care service for the purposes of this Part Early childhood service means a licensed early childhood service (as defined in section 309) Free kindergarten means an early childhood education and care centre (as defined in section 309) controlled by a free kindergarten association founded for the purpose of establishing and maintaining a kindergarten or kindergartens. This states that a “free kindergarten’ is an ECE centre controlled by a “free kindergarten association”, but does not define a “free kindergarten association”. General education system means the system of education provided in—
(a) registered schools; and
(b) early childhood services; and
(c) other educational institutions and services established or deemed to have been established, or provided, under this Act or the Education Act 1964
This confirms that the “general education system “ includes ECE centres. Teaching position means a position in the general education system that—
(a) requires its holder to instruct students; or
(b) is the professional leader, deputy professional leader (however described), or assistant principal of a school; or
(c) is the professional leader of an early childhood service or other educational institution.
point is perhaps most problematic from a pedagogical point of view as it defines a “teacher” as someone who instructs students and it could be argued that ECE teachers do not “instruct”.
The definition of “teacher” in the Education Act should be amended so that it clearly includes all qualified ECE teachers. In any event, this section of the Education Act just contains definitions related to teacher registration. If anything, all it does is to clarify that those working in sessional kindergartens are covered by registration requirements just like every other ECE teacher. It does not give kindergarten teachers any special status, it just clarifies that, for registration purposes, they should not be treated as having a lower status than other ECE teachers. Question Three: Referring to the State Sector Act, section 2 this question asks: “is RKA’s Member’s employee a registered teacher under Part 31 of Ed Act?”
Comment: Section 2 of the State Sector Act contains the definitions used in that Act and includes: education service means—
(a) service in the employment of—
(i) any State school; or
(ii) any integrated school within the meaning of Part 33 of the Education Act 1989; or
(iii) any tertiary institution; or
(iv) any other educational institution for which a separate employer for the purposes of this Act is designated by any enactment or by the Minister:
(b) service as a registered teacher in the employment of any free kindergarten association that controls a free kindergarten within the meaning of section 120 of the Education Act 1989:
This section is the crux of the matter. It uses the term “free kindergarten association” and “free kindergarten” as defined in section 120 of the Education Act, but Section 120 has been repealed and does not exist. It was in Part 10 of the Act (itself completely repealed) which dealt with teacher registration. Teacher registration is now covered in Part 31 of the Act which includes section 348.
Section 348 clearly states that a free kindergarten is “an early childhood service whose licence permits no child to attend for a period of more than 4 hours on any day”. So, the State Sector Act may (if you ignore the non-existence of section 120 of the Education Act) cover teachers in sessional kindergartens, but it certainly does not cover those whose licence permits a child to attend for more than four hours on any day. Non-sessional kindergartens are therefore clearly no longer covered by the State Sector Act.
Kindergarten associations may be of the opinion that this was some sort of mistake or oversight, but it is the law.
Kindergarten associations would have had the opportunity to comment on amendments to legislation when it was before select committee. I do not know if they made any submissions on the relevant bill or bills. Nevertheless, we cannot ignore or misinterpret the law just because it does not say what we want it to say.
When section 120 of the Education Act was replaced by section 348 there would seem to have been a clear intent to categorise non-sessional kindergartens as being just the same as other teacher led ECE centres. It seems that some consequential amendments may have been overlooked at this point. The term ‘free kindergarten’ is undefined other than for the purpose of clarifying that their teachers are covered by registration requirements. It is clear that, with the possible exception of sessional kindergartens (and this exception only applies if you ignore the non-existence of section 120 of the Education Act), kindergarten teachers are not covered by the State Sector Act and their status is no different to teachers in any other ECE service.
Implications of Non-Coverage
Coverage by the State Sector Act used to be important for: superannuation, and having the State Services Commissioner negotiate collective employment agreements “as if the Commissioner were the employer” (Section 74(1)).
Superannuation has moved on from the days when the Government Superannuation Fund provided special benefits for members of the state sector. This leaves us with the negotiation of collective employment agreements to consider.
Currently the Kindergarten Teachers, Head Teachers and Senior Teachers’ Collective Agreement 2017-2019 (KTCA) has as one of its parties “the Secretary for Education acting under delegation from the State Services Commissioner made pursuant to section 23 of the State Sector Act 1988 and acting in accordance with section 74(5) of the State Sector Act 1988”.
As the Secretary for Education is acting for the State Services Commissioner under powers stemming from the State Sector Act, and as kindergarten teachers are no longer covered by that Act, any re-negotiation or renewal of the KTCA cannot involve the State Services Commissioner or anyone holding a delegation from the Commissioner.
Should the KTCA be re-negotiated with the current parties it would clearly be open to legal challenge and might be annulled by the courts.
The renegotiation of the KTCA can no longer involve the Secretary for Education. As the parties to the negotiation will not include anyone who can commit the Ministry of Education to fund changes to remuneration, it will be difficult for NZ Kindergartens, and for NZEI, to negotiate terms which rely on any increases to Ministry of Education funding. This includes retention of pay parity with the primary sector.
The current situation is clearly untenable and must change. It is unfortunate that most of the parties involved have not yet realised the implications of the current legal situation. This means that they are unaware of the urgent need to change the law and therefore will not be pressing for any changes.
ECE Teachers’ Employment Arrangements
It is clearly desirable that all public, charitable ECE centres are covered by the State Sector Act. The definition of “education service” in Section 2 of the Act should be amended to include all ECE centres that have charitable status and whose charitable purpose includes early childhood education.
Including the charitable purpose is important as non-educational charities might run ECE centres as a way of funding their other, non-educational, activities. Amending this definition is an urgent matter as it bears directly on the parties to the KTCA being legally empowered to re-negotiate it.
David thank you for all the work you've done in preparing the policy paper and this helpful think piece for our early childhood sector to discuss, debate, and take forward in advocating for improvement.
It will be interesting to see how quickly (or not) the government responds to fix the situation