Independent Education Union of Australia

[2019] FWCA 2829

[2019] FWCA 2829

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Independent Education Union of Australia
(AG2018/6293)

CLONCURRY KINDERGARTEN ASSOCIATION INC COLLECTIVE AGREEMENT 2018

Children's services
DEPUTY PRESIDENT KOVACIC	CANBERRA, 26 APRIL 2019

Application for approval of the Cloncurry Kindergarten Association Inc Collective Agreement 2018.

[1] An application has been made for approval of an enterprise agreement known as the Cloncurry Kindergarten Association Inc Collective Agreement 2018 (the Agreement). The application was received by the Fair Work Commission (the Commission) on 12 November 2018 and made pursuant to s.185 of the Fair Work Act 2009 (the Act). The application was made by Independent Education Union of Australia (IEU – the Applicant) which was a bargaining representative for the Agreement. The Agreement is a single enterprise agreement.

[2] On 4 March 2019 Ms Monique Roosen, an Industrial Services Officer with the IEU, sent the email set out below to the Commission:

“Please be advised that, upon review of the proposed Agreement for Cloncurry Kindergarten, it has been discovered that the wage rates contained in Appendix A of the Agreement contain some errors. Clause 12 (Wages) of the proposed Agreement identifies that four wage increases, each of 2.7%, are provided for employees. However, when the Wage schedules were calculated increases of only 2.5% were used. Hence, the rates in the Appendix are less than the rates agreed as part of the Enterprise Agreement.

We have corrected the errors in Appendix. That correction is included in the attached document.

Pursuant to section 586 of the Act, we respectfully request that the Fair Work Commission accept the corrections to the proposed Agreement. The acceptance of this amendment will not disadvantage any employee who will be covered by the Agreement. Employees will in fact be advantaged.

The employer agrees with this position, as evidenced by the attached correspondence.”

[3] Attached to Ms Roosen’s email was a letter dated 28 February 2019 from Ms Bridget Calverd, the President of the Committee of Management of the Cloncurry Community Kindergarten. The letter read as follows:

“The employer confirms that the corrections made by the Independent Education Union of Australia in relation to Appendix A (Wages rates) in the Cloncurry Kindergarten Association Inc Collective Agreement 2018 reflect the intention of the Committee as the employer.

Pursuant to section 586 of the Act, the employer respectfully requests that the Fair Work Commission accept the corrections to the proposed Agreement. The acceptance of this amendment will not disadvantage any employee who will be covered by the Agreement. Employees will in fact be advantaged.”

[4] By way of background, clause 12 of the Agreement includes the following:

“12. WAGES

12.1 This Agreement provides for the following wages increases for Teachers, Directors, Assistants and Exempted Teachers:

(a) With effect from 1 July 2017 – 2.7%;

(b) With effect from 1 July 2018 – 2.7%;

(c) With effect from 1 July 2019 – 2.7%; and

(d) With effect from 1 July 2020 – 2.7.

12.2 The wages for employees are shown in Appendix A of this Agreement.”

[5] Further, Appendix B of the Agreement as lodged includes the following tables which set out the rates of pay for teachers (the second table does not include the rates “As From 1 July 2019” and “As From 1 July 2020” – similar tables are included in respect of Assistants and Exempted Teachers but for reasons of brevity have not been set out below):

Teachers

The following scale of wages shall apply to Teachers. To calculate an hourly rate, divide by 75. To calculate a casual rate, add 25% to the Normal (per hour) amount.

As From 1 July 2017
2.5% Increase
Fortnight ($)	Hourly ($)	Casual (25%) ($)
Band 1	Step 1	2,189.48	29.1931	36.4914
	Step 2	2,251.62	30.0216	37.5270
	Step 3	2,327.40	31.0319	38.7899
	Step 4	2,407.50	32.1000	40.1250
Band 2	Step 1	2,530.04	33.7338	42.1673
	Step 2	2,612.01	34.8268	43.5335
	Step 3	2,748.60	36.6480	45.8100
	Step 4	2,885.77	38.4770	48.0962
	Step 5	3,023.42	40.3123	50.3904
Band 3	Step 1	3,138.06	41.8408	52.3010
	Step 2	3,253.15	43.3753	54.2191
	Step 3	3,412.13	45.4951	56.8689
	Step 4	3,489.10	46.5213	58.1517

As From 1 July 2018
2.5% Increase
Fortnight ($)	Hourly ($)	Casual (25%) ($)
Band 1	Step 1	2,369.00	31.5867	39.4833
	Step 2	2,450.40	32.6720	40.8400
Band 2	Step 1	2,686.20	35.8160	44.7700
	Step 2	2,817.50	37.5667	46.9583
	Step 3	2,951.30	39.3507	49.1883
	Step 4	3,090.10	41.2013	51.5017
Band 3	Step 1	3,217.60	42.9013	53.6267
	Step 2	3,349.70	44.6627	55.8283
	Step 3	3,483.30	46.4440	58.0550
	Step 4	3,565.90	47.5453	59.4317

[6] What can be seen from the above tables is that they apply a 2.5% increase (see highlighted text in the tables) as opposed to the 2.7% wage increases specified in clause 12 of the Agreement and that a number of pay points do not appear in the second table (i.e. Band 1 – Steps 3 and 4 and Band 2 – Step 5). I further note that the rates of pay for Band 1 employees specified in the second table above reflect increases of 8.2% and 8.8% respectively, which is again inconsistent with clause 12 of the Agreement. The tables in the Agreement as lodged setting out the rates of pay for Assistants and Exempted Teachers also apply 2.5% wage increases as opposed to the 2.7% wages increases specified in clause 12 of the Agreement.

[7] While undertakings were initially considered as a way of addressing the abovementioned errors, in circumstances where other than for the Exempted Teacher Grade 3 classification the rates of pay were all above those specified in the relevant modern award, i.e. the Children’s Services Award 2010 1, the Commission would have been unable to accept any undertakings directed at correcting the errors as the requirements of s.190(1)(b) of the Act were not met. Against that background, the Commission contacted Ms Roosen to discuss the issue further.

[8] On 1 April 2019 Ms Roosen sent an email to the Commission which included the following:

“It is the case that at all times at during the negotiations only one teacher was employed and that teacher is Band 3 Step 4. This continues to be the situation.”

[9] In subsequent developments, the IEU at the Commission’s request on 15 April 2019 provided a statutory declaration by Ms Roosen in support of its request for the Commission to exercise the discretion available to it under s.586 of the Act. In her statutory declaration Ms Roosen stated inter alia that:

● she had been advised that employees at the Cloncurry Kindergarten were advised at a meeting with the President of the Committee of Management of the Kindergarten on 19 October 2018 to explain the terms of the Agreement and the effect of those terms that wages and allowances would increase by 2.7% for each year of the Agreement up to an including 1 July 2020;

● an error occurred in relation to the calculation of the pay scale for Teachers in the Agreement, with the error not identified until after the Agreement had been balloted and lodged with the Commission; and

● once the error was identified, the IEU and employer notified the Commission on 28 February 2019.

[10] Attached to Ms Roosen’s statutory declaration was a copy of the abovementioned letter from Ms Calverd of 28 February 2019.

The Statutory framework

[11] Section 586 of the Act provides as follows:

“586 Correcting and amending applications and documents etc.

The FWC may:

(a) allow a correction or amendment of any application, or other document relating to a matter before the FWC, on any terms that it considers appropriate; or

(b) waive an irregularity in the form or manner in which an application is made to the FWC.”

Consideration of the issues

[12] Having regard to Ms Roosen’s statutory declaration, the abovementioned letter from Ms Calverd, the clear inconsistency between clause 12 of the Agreement and the pay rates specified at Appendix B of the Agreement as lodged, Ms Roosen’s abovementioned email advice of 1 April 2019 and the fact that no employees will be disadvantaged as a result of correcting the errors outlined above, I am satisfied that it is appropriate to exercise the discretion available to the Commission under s.586 of the Act to correct the errors in the Agreement as lodged. A corrected version of the Agreement is attached.

Conclusion

[13] Subject to concerns that have been addressed by way of undertakings, I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to this application for approval have been met.

[14] As noted, pursuant to s.190(3), I have accepted undertakings from the employer. In accordance with s.191(1) of the Act those undertakings are taken to be a term of the Agreement. A copy of those undertakings are attached to this decision.

[15] The IEU being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the organisation.

[16] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 3 May 2019. The nominal expiry date of the Agreement is 31 December 2020.

Annexure A

 1   MA000120

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