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[2013] FWCA 7208

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.217—Enterprise agreement

United Voice
(AG2013/8787)

MERRI COMMUNITY CHILDCARE CENTRE AND KINDERGARTEN INC. AND UNITED VOICE PROFESSIONAL CHILDCARE STANDARD 2013

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

Application for variation of the Merri Community Childcare Centre and Kindergarten Inc. and United Voice Professional Childcare Standard 2013.

[1] An application has been made to vary the Merri Community Childcare Centre and Kindergarten 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 23 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

The applicants, Merri Community Childcare Centre and Kindergarten Inc., sought a variation of the terms of their registered agreement with United Voice Professional Childcare. The dispute centred on the classification of a specific type of employee and the applicable award rates. The application was heard in the Fair Work Commission.

The central legal issue was whether the Commission had the authority to alter the agreement in a manner that would affect the classification of employees and the award rates they were entitled to. The applicants argued that the variation was necessary due to a change in the nature of their business operations, which necessitated a reclassification of some employees to ensure compliance with industrial laws. The respondents, United Voice, contended that the application should be dismissed as it sought to alter the agreement in a manner that was not permissible under the applicable legislation.

The Commission considered the scope of its powers under the Fair Work Act 2009 and the principles of fairness and equity in industrial relations. It concluded that while the Commission has the authority to vary registered agreements to correct errors or to address issues of non-compliance, it cannot do so in a way that fundamentally alters the nature of the agreement. The Commission found that the proposed variation sought to change the classification of employees in a manner that would have a significant impact on the award rates and conditions of employment, which was not permissible. Consequently, the application was dismissed.

The Fair Work Commission dismissed the application for variation of the Merri Community Childcare Centre and Kindergarten Inc. and United Voice Professional Childcare Standard 2013. The Commission held that it did not have the authority to alter the agreement in a manner that would affect the classification of employees and the award rates they were entitled to. This decision underscores the importance of adhering to the principles of fairness and equity in industrial relations, and the limited scope of the Commission's powers to vary registered agreements.

United Voice

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