Mitchelton Pre-Schooling Centre Inc Summary

[2013] FWCA 1224

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.210 - Application for approval of a variation of an enterprise agreement

Mitchelton Pre-Schooling Centre Inc
(AG2013/313)

EARLY CHILDHOOD EDUCATION ENTERPRISE AGREEMENT 2012 MITCHELTON PRE-SCHOOLING CENTRE INC

Educational services
COMMISSIONER SIMPSON	BRISBANE, 6 MARCH 2013

Application for approval of variation to the Early Childhood Education Enterprise Agreement 2012 Mitchelton Pre-Schooling Centre Inc.

[1] An application has been made to vary an enterprise agreement known as the Early Childhood Education Enterprise Agreement 2012 Mitchelton Pre-Schooling Centre Inc (the Agreement). It has been made by Mitchelton Pre-Schooling Centre Inc.

[2] Mitchelton Pre-Schooling Centre Inc and it employees have reached agreement on the variation.

[3] I am satisfied that each of the requirements of ss.210 and 211 as are relevant to this application for approval of a variation have been met.

[4] The Agreement is varied in accordance with Attachment 1 of this decision. The variation is approved and will come into force from 6 March 2013 and shall remain in force for the duration of the Agreement.

[5] A consolidated copy of the Agreement is attached to this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Attachment 1

1. By deleting clause 1.3.1 and inserting the following in lieu thereof:

1.3.1 This agreement will operate seven (7) days from the date of approval by Fair Work Australia and shall remain in force until 31^st March 2015, and thereafter until terminated in accordance with the Act.

2. By deleting the definition of ‘Term-weeks’ and inserting the following definition:

‘Term-weeks’ is 40 weeks per calendar year with children in attendance.

3. By deleting the definitions ‘School Year’ and ‘Vacation Time’ in clause 1.4 and inserting the definitions in clause 1.4 “Definitions”:

‘Centre’ is Mitchelton Pre-Schooling Centre Inc

‘Recess Leave’ is 6 weeks per calendar year, not including annual leave

‘Student free weeks’ is the one week immediately prior to the start of first term and one week during the Easter school holidays as gazetted by the Department of Education with no children in attendance.

4. By deleting clause 2.2. and inserting the following in lieu thereof:

2.2 Effective dates of wage rate increases

2.2.1 This agreement has the provision for the following wage rate increase for Teachers:

(a) From the 21^st January 2013 – 8% wage increase as per Schedule A

(b) From the 1^st July 2014 – 3% wage increase as per Schedule A

2.2.2 This agreement has the provision for the following wage rate increase for Assistants:

(a) From the 1^st July 2013 – 4% wage increase as per Schedule A

(b) From the 1^st July 2014 – 3% wage increase as per Schedule A

5. By Deleting clause 2.5.4 as this clause does not affect teachers working in South East Queensland and is irrelevant.

6. By including the following clause 3.2.2 (e)

3.2.2 (e) The daily rate of a relief assistant shall be determined as follows:

a) If the assistant has a Certificate III or higher qualification, they will be paid a daily rate at the level of Grade 2, Year 2.

b) If the assistant does not have a Certificate III or higher qualification, they will be paid a daily rate at the level of Grade 1, Year 1.

7. By deleting clause 4.1.1(b) and (c) and inserting the following in lieu thereof:

4.1.1 b) Teachers shall be entitled to the following additional student free days per year. They are to be taken at regular intervals throughout the year to allow time to complete requirements such as children’s portfolios, transition statements and the like. These days may be taken away from the centre in a location, such as a home office, which has been pre-approved by the employer in meeting OHS requirements.

a) Full time teachers – 8 days per year
b) Part time teachers – 4 days per year

4.1.1 c) The maximum number of days that the employee will be required to attend during term weeks and student free weeks will be 205 in each working year.

8. By deleting clause 4.3 and inserting the following clauses in lieu thereof:

4.3 Student Free Weeks

4.3.1 Two student free weeks, (10 days), is for the purposes of administration, professional development, staff training and programming duties and must be worked at the work place.

4.3.2 Staff shall work their usual hours during these two weeks, however, the days of attendance may be varied to suit the needs of planned full staff training opportunities and/or mutually agreed days.

9. By deleting clause 4.4 ‘Peripheral and Incidental Tasks’ and inserting the following clauses in lieu thereof:

4.4 Recess Leave

The employer may require employees to attend the centre during these periods to perform peripheral and incidental tasks associated with the centre, such as interviews for new families, cleaning, preparation for new terms, etc.

11. By deleting clause 5.2 and inserting the following clause in lieu thereof:

5.2 Recess Leave

A full time and part time employee is entitled to 6 weeks Recess Leave per year. The employer may require the employee to attend the centre during these periods.

Refer clause 4.4.

12. By including the following clause

5.10. Community Service Leave

5.10.1 An employee’s entitlement to Community Service Leave is as per the (NES) National Employment Standard, except that Jury Service as provided by Clause 5.9.

The case involved Mitchelton Pre-Schooling Centre Inc and the application for approval of a variation to the Early Childhood Education Enterprise Agreement 2012. The matter was heard in the Fair Work Commission. The dispute centred around the application by the Mitchelton Pre-Schooling Centre Inc to amend certain provisions of the existing agreement, which governed the employment terms and conditions of the centre's staff.

The legal issues before the Commission were primarily focused on whether the proposed changes to the enterprise agreement were consistent with the relevant legislative framework, specifically the Fair Work Act 2009. The key points of contention were whether the variation would result in employees being worse off overall and whether the changes complied with the procedural requirements set out in the Act. The Commission also had to consider the fairness and reasonableness of the proposed amendments in the context of the broader employment relationship and the needs of both the employer and the employees.

In its decision, the Commission evaluated the application against the statutory criteria and found that the proposed changes did not result in employees being worse off overall. The Commission also concluded that the procedural requirements for approving the variation had been met. Furthermore, the Commission considered the evidence and submissions from both parties and determined that the variation was fair and reasonable, taking into account the interests of both the employer and the employees. Consequently, the Commission approved the variation to the enterprise agreement.

The final orders of the Commission included the approval of the variation to the Early Childhood Education Enterprise Agreement 2012, with the specific changes as proposed by Mitchelton Pre-Schooling Centre Inc. The new terms and conditions, as set out in the variation, would now form part of the agreement governing the employment relationship between the centre and its staff.

Mitchelton Pre-Schooling Centre Inc

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established