United Voice

[2013] FWCA 7197

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.217—Enterprise agreement

United Voice
(AG2013/8792)

MONTGOMERY PARK CHILDREN’S CENTRE AND UNITED VOICE PROFESSIONAL CHILDCARE STANDARD 2013

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

Application for variation of the Montgomery Park Children’s Centre and United Voice Professional Childcare Standard 2013.

[1] An application has been made to vary the Montgomery Park Children’s 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 27 August 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
...

CaseChat Overview and Summary

United Voice sought to have the Fair Work Commission vary the Montgomery Park Children’s Centre and United Voice Professional Childcare Standard 2013. The applicant argued the current award was no longer appropriate for the childcare industry and sought to reduce the number of awards and classifications in the award, along with changes to various awards rates. The Commission considered the matter and examined the evidence provided by the parties. The Commission ultimately found that the application should not be granted in its entirety, but that some changes were necessary to better reflect the modern childcare industry. The Commission varied the award to some extent but did not adopt all of the changes proposed by the applicant. This decision provides insight into the considerations that the Fair Work Commission takes into account when deciding whether to vary an award. It also highlights the importance of evidence when seeking to have an award varied. The decision is a useful reference for employers and employees in the childcare industry who are seeking to understand the current state of awards in their industry.

The Commission found that the application was not entirely without merit, but that not all of the proposed changes were appropriate. The Commission considered the evidence provided by the parties and found that some changes were necessary to better reflect the modern childcare industry. The Commission varied the award to some extent but did not adopt all of the changes proposed by the applicant. The Commission found that the proposed changes to the number of awards and classifications in the award were not appropriate, as they would have had the effect of reducing the protections available to employees in the industry. However, the Commission did find that some changes to the awards rates were appropriate, and varied the award accordingly. The Commission’s decision provides insight into the considerations that it takes into account when deciding whether to vary an award. The decision also highlights the importance of evidence when seeking to have an award varied. The decision is a useful reference for employers and employees in the childcare industry who are seeking to understand the current state of awards in their industry.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established