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Kindergarten Associations Underpaying Some of Their Teachers? 7 months 3 weeks ago #969

  • David Haynes
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Are you a certificated teacher employed by a kindergarten association? If you work in an ‘education and care centre’ controlled by a kindergarten association and do not get paid as much as ‘kindergarten’ teachers you may be owed some serious back pay.

This is a summary of the main points that are explored in this short paper:
• The ‘kindergarten’ rate of funding is provided to employers to enable them to pay their certificated teachers at KTCA rates.
• ‘Free kindergarten’ is defined in law as an ECE centre controlled by a free kindergarten association. It does not need to be called a kindergarten. It does not need to be directly owned by the association, just controlled by it.
• Every ECE centre owned by a kindergarten association, or a subsidiary of an association, is automatically eligible to receive the ‘kindergarten’ rate of funding, which it must use to pay its staff at KTCA rates.
• The KTCA itself (ie all its terms and conditions, not just payrates) is binding on kindergarten associations and covers their employees. All certificated teachers who are directly employed by a kindergarten association should be covered by the KTCA, regardless of the name of the centre where they work.
• I suspect that quite a number of certificated teachers working directly or indirectly for kindergarten associations may have been underpaid for some time and will be eligible not just for a pay rise to KTCA rates but also to backpay.

The Detail
The unfair and immoral underpayment of certificated ECE teachers who do not work for ‘kindergarten associations’ is well known. However, it appears that some kindergarten associations are underpaying some of their certificated teachers. How could this be?

The Education and Training Act 2020 contains the following definition in section 10 (which contains definitions applying to the whole Act):

free kindergarten means an early childhood education and care centre controlled by a free kindergarten association founded for the purpose of establishing and maintaining a kindergarten or kindergartens”

This means that any ‘early childhood education and care centre’ controlled by a ‘free kindergarten association’ is legally a ‘free kindergarten’ no matter what it is called. The law says that it does not need to be called a ‘kindergarten’ to be a ‘free kindergarten’. This has been the legal position since the Act came into force on 1st August 2020. Prior to this, in the old Education Act, the definition of ‘free kindergarten’ was restricted to the part of the act that dealt with teacher registration, so it had nothing to do with Ministry of Education (MoE) funding rates or with pay rates.

But what does “controlled by” mean? The law has recently been rewritten and “controlled by” was not changed to “owned by”. Clearly control, not ownership, is the test. ‘Kindergarten associations’ that directly own ‘kindergartens’ obviously control them. However, some associations have formed subsidiary entities to own their education and care centres – ECE centres that they do not call ‘kindergartens’. If day to day control of these (including things like payroll, policy writing, pedagogical oversight, finance, recruiting processes etc) is exercised by the kindergarten association, and not by an independent group of people employed by the subsidiary, then the association clearly controls these education and care centres and they are therefore legally “free kindergartens”

The Kindergarten Teachers, Head Teachers and Senior Teachers’ Collective Agreement (KTCA) is binding on kindergarten associations and covers kindergarten teachers “who are employed by free kindergarten associations”.

This means that every certificated teacher employed by a ‘free kindergarten association’ is legally entitled to be paid at KTCA rates, and this has been the case certainly since 1st August 2020 and arguably since long before that.

The only problem with this is that many kindergarten associations do not have “free” in their names and the term “free kindergarten association” is not defined in law. However, MoE is well known not to let a little thing like the law get in its way, especially when it comes to providing preferential levels of funding to ‘kindergartens’.

Some of you may be aware that, after spending over a year denying that there was a problem, MoE had to get the Minister of Education’s approval to amend the ECE Funding Handbook to classify ‘kindergartens’ as a separate class of early childhood services for funding purposes. When this was done on 20th August 2020 MoE got the Minister to agree that a kindergarten association be defined in the Funding Handbook as “a service provider controlling one or more kindergartens formerly recognised under the Kindergarten Regulations 1959, or is a service provider that has formed from a free kindergarten association or associations that controlled one or more kindergartens recognised under those regulations”.

This means that, with effect from 20th August 2020, for funding purposes even the requirement to be called ‘free’ was removed. I have already pointed out, both to the MoE and to the Minister, that further amendments to the Funding Handbook are required in order to call up the new definition of kindergarten association and make it a factor in MoE’s funding decision. So far no action has been taken, but the Minister’s intention is clear – the kindergarten associations newly listed at the back of the Funding Handbook now, after nine years in legal limbo, at last qualify for the ‘kindergarten’ rate of funding. The MoE has confirmed more than once that the ‘kindergarten’ funding rate is to enable teachers to be paid at KTCA rates.

All of this means that every certificated teacher who is employed by a kindergarten association should be being paid at KTCA rates regardless of the name of the ECE centre where they work. This has clearly been the case for all certificated teachers employed by kindergarten associations since 20th August 2020 (the date of the Minister’s decision), in the case of those employed by associations with ‘free’ in their name since 1st August 2020 (the date the law changed), and possibly long before that. There is ample evidence that MoE set the precedent of funding centres without ‘kindergarten’ in their names at the ‘kindergarten’ funding rate well before the Education and Training Act came into force.

All this also means that every education and care centre controlled (but not necessarily directly owned) by a kindergarten association should have been receiving funding at the ‘kindergarten’ rate since the Minister’s decision on 20th August, possibly since 1st August and maybe long before that. Remember that MoE says that the ‘kindergarten’ funding rate is to pay certificated teachers at KTCA rates.

If certificated teachers working, directly or indirectly, for kindergarten associations are not being paid at KTCA rates, and I understand that some teachers in ‘education and care centres’ are not, then I believe that their employer is in breach of the KTCA and/or the ECE Funding Handbook and has been underpaying them for some time. Those teachers should have a pay rise and receive back pay. An apology for deliberately discriminating against them would also seem appropriate.
The following user(s) said Thank You: Pushpa Baberwal

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Last edit: by David Haynes.
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