Danielle Wilson is an industrial officer for IEUA-QNT and Tina Smith is an organiser for the IEUA NSW/ACT Branch. They answer your industrial and legal questions as they relate to state laws and regulations.
Your questions answered
Dear Danielle
I have been employed as an assistant in my kindy for 10 years. But this year our committee has asked me to sign a new contract. It looks similar to my original letter of appointment but now there are other things included that I have concerns about. One of the clauses asks me to agree that if I resign, I will not work in other kindergartens close by within six months of my resignation. I’ve never had to sign something like this before. Is this right?
Janine
I have been employed as an assistant in my kindy for 10 years. But this year our committee has asked me to sign a new contract. It looks similar to my original letter of appointment but now there are other things included that I have concerns about. One of the clauses asks me to agree that if I resign, I will not work in other kindergartens close by within six months of my resignation. I’ve never had to sign something like this before. Is this right?
Janine
Dear Janine
Our Union has seen a lot of contracts like this in the last 12 months. These additional obligations have included things like the restraint on trade clause you mention, as well as over reaching clauses around confidentiality, intellectual property and conflict of interest. These types of terms are common
in commercial trade contracts, but they are not common in employment contracts and they are not usually canvased in underlying industrial instruments. The need to issue a new contract or letter of appointment to an existing employee is only necessary if there has been a variation to a person’s employment arrangements and both parties agree to the
changes. However, it must be noted that where an employee does agree to sign a new contract with their employer, unless there is an inconsistency with the National Employment Standards (NES), or the Award/Agreement that is in place, or unless the term is proven to be unreasonable, employees could be deemed bound by all the provisions of that new contract.
The need for such provisions can and should be contested and as a Union we will assist our members in contesting such provisions.
We are aware that committees sometimes get their industrial advice from external bodies. Committees obtain this advice in good faith and rely on it when dealing with their employees. Sometimes the advice they received is not good advice and it cannot be relied on. In all of the instances that we were made aware of where committees have asked employees to sign new contracts, they told our members that they had been advised that if they didn’t get their employees to sign, they would have to readvertise their positions. This is just not true.
For this reason, we encourage our members to have any document which their employer has asked them to sign checked by our IEUA-QNT industrial team first. Our members have a right to seek advice on employment matters and employers must allow time for this to occur. In addition to being able to offer advice to members, this also helps us pick up these sorts of worrying trends and alert our members to such sector wide issues and concerns.
Danielle
Dear Tina
I have worked in a mobile preschool for 22 years. NESA does not recognise these types of early learning services and deems them to be an out of scope service under the Teacher Accreditation Act 2004. Due to the type of service I’m employed in my teacher status is not recognised by NESA and I am not able to maintain my teacher accreditation. What can I do to maintain my licence to teach?
Stacy
I have worked in a mobile preschool for 22 years. NESA does not recognise these types of early learning services and deems them to be an out of scope service under the Teacher Accreditation Act 2004. Due to the type of service I’m employed in my teacher status is not recognised by NESA and I am not able to maintain my teacher accreditation. What can I do to maintain my licence to teach?
Stacy
Dear Stacy
This has been a problem since early 2016 when the legislation changed to include early childhood teachers under the NESA umbrella. The legislation refers to accredited centres, and mobile preschools are not included, and only teachers working in accredited centres can seek and maintain accreditation as a teacher.
IEUA NSW/ACT Branch negotiated with NESA so teachers working outside of accredited centres/services would be able to seek accreditation and be deemed at Proficient level if they have taught at an accredited service within five years of 18 July, 2016.
IEUA has since been in dialogue with NESA to rectify this injustice. We believe there is no lesser service quality, qualifications and outcomes to young children just because they attend a mobile service.
Teachers in your position have a number of steps that need to be taken to maintain their Proficient status with NESA.
Seek retrospective leave of absences with NESA to 18 July 2016 (or from whichever date they started in that role in an unaccredited service/centre). The form can be found here.
Seek to teach in an accredited centre for a minimum of one day or more within five years of becoming Proficient or the time a teacher started at an unaccredited service/centre.Apply for voluntary accreditation with NESA. Further information can be found here
Tina