United Voice

[2013] FWCA 7165

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.217—Enterprise agreement

United Voice
(AG2013/8820)

STONNINGTON CHILDREN’S CENTRE INC. AND UNITED VOICE PROFESSIONAL CHILDCARE STANDARD 2013

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

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

[1] An application has been made to vary the Stonnington Children’s Centre Inc. 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 the Federal Circuit Court, United Voice sought to vary the Stonnington Children’s Centre Inc. and United Voice Professional Childcare Standard 2013, which regulated employment conditions for early childhood educators. The application was opposed by the employer, Stonnington Children’s Centre Inc. The primary issue before the court was whether the application met the legal criteria for a variation of the industrial instrument, specifically whether the changes proposed were necessary and appropriate in the context of the existing award.

The court assessed the application under the Fair Work Act, focusing on the necessity of the changes proposed by United Voice. It examined whether the proposed changes would result in significant improvements to the working conditions of the employees covered by the award, and whether the changes were consistent with the principles of the Fair Work Act, including the protection of employees' rights and interests. The court also considered the submissions and evidence presented by both parties regarding the impact of the proposed changes on the operations of the childcare centre and the rights of the employees.

In its judgment, the court found that the application did not sufficiently demonstrate the necessity and appropriateness of the proposed changes. The changes did not align with the objectives of the Fair Work Act, which include maintaining a fair and efficient industrial relations system. The court also noted that the proposed changes would impose additional costs on the employer without a corresponding benefit to the employees. Consequently, the court dismissed the application for variation of the award.

The court's final order was that the application be dismissed with no orders for costs.

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