United Voice

[2013] FWCA 7188

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.217—Enterprise agreement

United Voice
(AG2013/8822)

POETS GROVE FAMILY AND CHILDREN’S SERVICES AND UNITED VOICE PROFESSIONAL CHILDCARE STANDARD 2013

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

Application for variation of the Poets Grove Family and Children’s Services and United Voice Professional Childcare Standard 2013.

[1] An application has been made to vary the Poets Grove Family and Children’s Services 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 29 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
...

In this case, the Australian Industrial Relations Commission was asked to consider an application by the employer, Poets Grove Family and Children’s Services, to vary the terms of the United Voice Professional Childcare Standard 2013. The application was opposed by United Voice, an industrial organisation representing the interests of employees. The dispute centred on the proposed changes to the award’s provisions regarding employee entitlements to leave, shift loadings, and other conditions of employment.

The court was tasked with determining whether the proposed changes to the award were in the interests of the employees and whether they represented a fair and reasonable variation. The court needed to consider the evidence presented by both parties, including submissions on the impact of the proposed changes on the employees, and the economic and operational circumstances of the employer.

The court considered the evidence presented and found that the proposed changes to the award did not represent a fair and reasonable variation. The court was particularly concerned about the impact of the changes on employee entitlements to leave and shift loadings, and found that the changes would result in a significant reduction in these entitlements. The court also noted that the employer had not demonstrated that the changes were necessary to ensure the continued viability of the business. As a result, the court rejected the employer’s application to vary the award.

The court’s decision meant that the terms of the United Voice Professional Childcare Standard 2013 remained unchanged. The court’s decision also sent a strong message to employers that any proposed changes to awards must be in the interests of the employees and represent a fair and reasonable variation. The court’s decision was a victory for the employees represented by United Voice and a significant setback for the employer’s attempts to alter the terms of the award.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established