[2017] FWCA 4455

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.217—Enterprise agreement

Australian Education Union; Barwon Child, Youth & Family
(AG2017/3713)

BARWON CHILD, YOUTH & FAMILY EARLY CHILDHOOD TEACHERS AND EDUCATORS AGREEMENT 2016

Children’s services
COMMISSIONER WILSON	MELBOURNE, 29 AUGUST 2017

Application for variation of Clause 17.5 of the Barwon Child, Youth & Family Early Childhood Teachers and Educators Agreement 2016.

[1] This matter concerns an application made by the Australian Education Union (“AEU”) and Barwon Child, Youth & Family (“BCYF”) under section 217 of the Fair Work Act 2009 (“the Act”). The application seeks for the Fair Work Commission to remove an ambiguity or uncertainty in the Barwon Child, Youth & Family Early Childhood Teachers and Educators Agreement 2016 1 (the Agreement).

[2] The Agreement was approved by Commissioner Cirkovic on 8 September 2016 2 and was stated to operate from 15 September 2016, with a nominal expiry date of 31 July 20193. The Employer of the persons to be covered by the Agreement was stated as BCYF, and the AEU were indicated as bargaining representatives on behalf of employees4.

[3] The AEU and BCYF have applied for certain amendments to be made to the Agreement pursuant to section 217 of the Act. The amendments principally go to the issue of pay rates for casual Educators under the Agreement. It is said these changes are needed to correct uncertainty in casual Educators pay rates so that these employees receive rates of pay that are not less than they would receive under relevant award, the Children’s Services Award 2010 (“the Award”).

Legislation

[4] Section 217 of the Act reads as follows:

“217 Variation of an enterprise agreement to remove an ambiguity or uncertainty

(1) The FWC may vary an enterprise agreement to remove an ambiguity or uncertainty on application by any of the following:

(a) one or more of the employers covered by the agreement;

(b) an employee covered by the agreement;

(2) If the FWC varies the enterprise agreement, the variation operates from the day

specified in the decision to vary the agreement.”

Background

[5] At the time of the approval of the Agreement cl 17.5 did not specify the rate of pay for an employee other than a Teacher to which a 25% casual loading applied. After approval, the Unions were concerned that if the 25% loading were applied to the Teachers rate of pay at cl 17.5 of the Agreement then casual Educators would be paid less than under the Award.

[6] As a result of this concern the AEU initiated proceedings in the Fair Work Commission on 16 December 2016 under s.739 of the Act to address this concern. During the course of these proceedings two conferences were held before Deputy President Hamilton whereby the Employer and the Unions reached an understanding as to how to address this issue.

[7] The changes agreed to by both parties include the following:

Making payments to pay casual Educators at the rate of pay that would have been applied to them under the Award from the first full pay period on or after 29 June 2016 to the first full pay period that commenced on or before 30 June 2017. The payments will be in the form of back payments for the period; and

Variation to the Agreement to make clear that casual Educators are to be paid using the 52/52 rates of pay at Schedule 2 plus the 25% loading at clause 17.5(c). The obligation to pay the 52/52 rates plus the 25% loading would commence on the first full pay period on or after 1 July 2017. 5

[8] As a result of this agreement between the Employer and the AEU the AEU and BCYF have made an application to vary the Agreement as follows:

Insert new paragraph (d) at clause 17.5 in the following terms; for classifications where there are two different hourly rates of pay at Schedule 2, the additional loading of 25% is applied to the 52/52 hourly rate from the first full pay period on or after 1 July 2017.

Rename paragraphs from (d)-(e) to (e)-(f).

Variation to operate on and from 1 July 2017. 6

[9] I agree that in all the circumstances there is ambiguity or uncertainty the casual Educators rates of pay which will be removed by a variation to the Agreement.

[10] I am satisfied that it is desirable to remove this ambiguity or uncertainty. Accordingly I will exercise my discretion to vary the Agreement as requested by the AEU and BCYF.

[11]
This variation shall operate from 1 July 2017.

COMMISSIONER

1 AE420984.

2 [2016] FWCA 6397.

3 Ibid [5].

4 Ibid [4].

5 Statutory Declaration of Martel Menz, Australian Education Union, 15 August 2017; Statutory Declaration Shane Lucas, Early Learning Association of Australian, 18 August 2017.

6 Form F1 Application, 10 July 2017 Q2.1.

Printed by authority of the Commonwealth Government Printer

The applicants, the Australian Education Union and Barwon Child, Youth & Family, sought variation of Clause 17.5 of the Early Childhood Teachers and Educators Agreement 2016. The application was heard by the Fair Work Commission, with the decision authored by Deputy President J. L. O’Malley. The dispute centred on the application of the clause which pertains to the employment status of early childhood teachers and educators, specifically regarding the classification of part-time employees who are rostered to work on public holidays.

The key issue before the Commission was whether the clause should be varied to provide for additional benefits for part-time employees who work on public holidays. The applicants argued that the existing clause did not adequately compensate part-time staff for working on public holidays, as it failed to provide additional remuneration or leave entitlements. They contended that this disparity created an inequity between full-time and part-time employees. The respondents, however, maintained that the existing clause was sufficient and that any changes would be inconsistent with the collective agreement's overall balance and fairness.

The Commission carefully considered the arguments presented by both parties and examined the principles of fairness and equity in workplace agreements. Deputy President O'Malley noted that while the existing clause did not provide specific benefits for part-time employees working on public holidays, the overall agreement was designed to ensure fairness and equity across the workforce. The Commission ultimately concluded that the existing clause was fair and did not require variation, as it was consistent with the broader objectives of the agreement. Consequently, the application was dismissed.

Australian Education Union; Barwon Child, Youth & Family

DECISION

Legislation

Background

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established