J & L Enterprises Pty Ltd T/A Discovery Early Learning Centres

[2013] FWCA 3828

[2013] FWCA 3828

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.210—Enterprise agreement

J & L Enterprises Pty Ltd T/A Discovery Early Learning Centres
(AG2013/6948)

DISCOVERY EARLY LEARNING CENTRES ENTERPRISE AGREEMENT 2010

Children’s services
COMMISSIONER GREGORY	MELBOURNE, 18 JUNE 2013

Application for variation of the Discovery Early Learning Centres Enterprise Agreement 2010.

[1] An application has been made for approval of a variation of the Discovery Early Learning Centres Enterprise Agreement 2010 (the Agreement). The application was made pursuant to s.210 of the Fair Work Act 2009 (the Act) by the employer party to the Agreement.

[2] I am satisfied that each of the relevant requirements of ss.210 and 211 of the Act have been met. I approve the variations which are as follows:

1. By inserting the following at clause 14.4:

“14.4 The Employer agrees to pay eligible Employees an increase in wages in line with the Early Years Quality Fund (EYQF) if the following criteria are met:

a) Discovery Early Learning Centre's is eligible to apply for funding as part of the EYQF;

b) Discovery Early Learning Centre's application for funding as part of the EYQF is accepted;

c) Discovery Early Learning Centres receive sufficient funding as part of the EYQF; and

d) If Discovery Early Learning Centres ceases to be eligible for funding under the EYQF, or the Fund is withdrawn, concludes or is amended so that the above criteria are no longer met, increased wages will cease.

14.4.1 Employees agree and understand that:

a) It is possible that the EYQF pay increase might not be applicable for all services provided by Discovery Early Learning Centres;

b) It is possible that all Employees might not receive a wage increase associated with the EYQF;

c) It is possible that Employees might not receive the EYQF pay increase for all hours worked within any given pay period;

d) If the Employer agrees to pay the same wage increase to those staff who are not entitled to the pay increase (in full or part, as per the criteria established under the EYQF), such pay is at the complete discretion of the CEO. Such increase will be limited to the period outlined in 14.4.1 f) and will cease as per 14.4 d);

e) The structure, eligibility criteria and increased pay rates associated with the EYQF are set by DEEWR and are outside the control of Discovery Early

Learning Centres;

f) The EYQF is, at the time of signing this variation, limited for two years ending on the 30 June 2015; and

g) If funding under the EYQF ceases at any point in time during the life of this enterprise agreement, related increased wages will cease.

14.4.2 An increase in an applicable hourly rate/s as a result of the EYQF will be administered by Discovery Early Learning Centres as a separate payroll category (EYQF) and be paid to employees in addition to employee's normal wages as detailed in Schedule A

14.4.3 An increase in the hourly rate, utilising funding provided by the EYQF, will be based on the rates specified by the EYQF and subject to clause 14.4.1 and 14.4.4

14.4.4 If on-costs are not funded to the employer in addition to the hourly rates specified by the EYQF, the Employer will deduct an amount from the specified increased hourly rate before wages are paid. The amount of on-costs deducted will be agreed by management annually and will include but not be limited to, superannuation guarantee, payroll tax, workers compensation insurance and provision for annual leave, annual leave loading, sick leave and long service leave.

14.4.5 Discovery Early Learning Centres may choose to not accept the funding once the eligibility criteria are set and if the majority of employees will not be better off over all.”

[3] The consolidated version of the Agreement, as varied, is attached to this decision. In accordance with s.216 of the Act, the variation operates on and from the date of this decision.

COMMISSIONER

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