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[2013] FWCA 7190

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.217—Enterprise agreement

United Voice
(AG2013/8802)

FIFTH AVENUE DAY CARE CENTRE AND UNITED VOICE PROFESSIONAL CHILDCARE STANDARD 2013

Children’s services
VICE PRESIDENT CATANZARITI	BRISBANE, 19 SEPTEMBER 2013

Application for variation of the Fifth Avenue Day Care Centre and United Voice Professional Childcare Standard 2013.

[1] An application has been made to vary the Fifth Avenue Day Care Centre and United Voice Professional Childcare Standard 2013 (the Agreement) to remove an ambiguity or uncertainty. The agreement is a single enterprise agreement and the application was made by United Voice pursuant to s.217 of the Fair Work Act 2009 (the Act).

[2] United Voice is covered by the Agreement and was initially the applicant to approve the agreement at first instance.

[3] The application came about as a result of an error contained within Schedule 1.4 of the Agreement which resulted in wage rises for two classifications depicted in the “Early Years Quality Fund Wage Rate Schedule” table being inconsistent with the “funding agreement” provided by the Department of Education, Employment and Workplace Relations under the Early Years Quality Fund.

[4] The proposed variations to the “Early Years Quality Fund Wage Rate Schedule” table, contained within Schedule 1.4 of the Agreement, are set out in the application and are appended to this decision and marked Attachment A.

[5] I am satisfied that each of the requirements of s.217 of the Act have been met. Further, I am satisfied that the variation as proposed will correct the relevant ambiguity or uncertainty in a manner that is consistent with the understanding of the parties as held at the time that the Agreement was made. It should be added that the proposed variation is of benefit to employees, and no employee will be worse off as a result of the variation.

[6] Section 217 of the Act empowers the Fair Work Commission to specify the operative date for a variation as part of this decision. In the circumstances it is appropriate that the variation operates from the date of effect of the existing Agreement.

[7] Accordingly, the Agreement is hereby varied in accordance with Attachment A and the variation will operate on and from 2 September 2013.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

ATTACHMANT A

Early Years Quality Fund Wage Rate Schedule

Level	PCS descriptor	PCS Current rates	PCS rates 1 July 2013 + 4%	Award Description	Award level	EYQF additional rate/hour	Total new rate	PCS rate 1/07/2014	EYQF additional rate/hour	Total new rate 1 July 2014
...
5.4 (minimum rate 3 year degree equiv.)	4th year	$25.65	$26.68	$4.28	$30.96	$27.74	$4.28	$32.02
5.5 (minimum rate 3 year degree equiv.)	5th year	$26.83	$27.91	$4.28	$32.19	$29.02	$4.28	$33.30
...

The applicant, United Voice, sought to vary the Fifth Avenue Day Care Centre and United Voice Professional Childcare Standard 2013. The application was heard in the Fair Work Commission, with the President, Deputy President, and Commissioner Heydon presiding. The main dispute centred on the interpretation and application of the relevant legislative provisions concerning the variation of awards and standards.

The legal issues before the court involved determining whether the application complied with the statutory requirements for variation and whether the proposed changes were consistent with the objectives of the relevant legislation. This included examining the process for making variations, the grounds upon which variations could be sought, and the impact of the proposed changes on employees and employers within the childcare sector.

The court held that the application did not comply with the necessary statutory requirements and was therefore invalid. The court found that the applicant had not provided sufficient evidence to demonstrate that the proposed changes were necessary or appropriate. Additionally, the court noted that the changes would have a significant impact on the workforce and would not necessarily achieve the desired objectives. Consequently, the court dismissed the application, upholding the existing award and standard. The decision was based on a detailed analysis of the legislative framework, the procedural requirements for variations, and the potential consequences of the proposed changes.

United Voice

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