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[2013] FWCA 7138

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.217—Enterprise agreement

United Voice
(AG2013/8799)

ST KILDA AND BALACLAVA KINDERGARTEN AND UNITED VOICE PROFESSIONAL CHILDCARE STANDARD 2013

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

Application for variation of the St Kilda and Balaclava Kindergarten and United Voice Professional Childcare Standard 2013.

[1] An application has been made to vary the St Kilda and Balaclava Kindergarten 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

The matter before the Fair Work Commission involved an application by United Voice, an industrial organisation, to vary the St Kilda and Balaclava Kindergarten and United Voice Professional Childcare Standard 2013. The application was made under section 235 of the Fair Work Act 2009, with the goal of modifying the standard's provisions to better reflect the current practices and needs of the industry. The St Kilda and Balaclava Kindergarten, represented by the respondents, opposed the application, arguing that the proposed changes were not warranted and could potentially harm the working conditions of the employees.

The primary legal issues before the commission centred on whether the proposed variations were necessary to address changes in the industry, and if they would provide a fair and appropriate outcome for all parties involved. The commission needed to assess the evidence presented by both sides, determine if the changes were justified, and if the variations would maintain the balance between the interests of the employer, the employees, and the broader community. The commission also had to consider whether the changes would align with the objectives of the Fair Work Act and ensure fair and equitable treatment for all parties.

In delivering the decision, the commission acknowledged the need for the standard to adapt to the changing nature of the childcare industry. The commission found that the proposed variations were necessary to reflect current industry practices, particularly in relation to the roles and responsibilities of educators within the kindergarten setting. The commission was satisfied that the changes would provide a fair and appropriate outcome for both employers and employees, while also promoting the objectives of the Fair Work Act. Consequently, the application for variation was approved, and the St Kilda and Balaclava Kindergarten and United Voice Professional Childcare Standard 2013 was amended accordingly. The decision reflected the commission's commitment to ensuring fair and balanced outcomes for all parties involved in the dispute.

United Voice

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established