United Voice

[2013] FWCA 7058

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.217—Enterprise agreement

United Voice
(AG2013/2608)

CAVES BEACH EARLY LEARNING CENTRE AND UNITED VOICE BIG STEPS ENTERPRISE AGREEMENT 2013

Children’s services
VICE PRESIDENT CATANZARITI	BRISBANE, 17 SEPTEMBER 2013

Application for variation of the Caves Beach Early Learning Centre and United Voice Big Steps Enterprise Agreement 2013.

[1] An application has been made to vary the Caves Beach Early Learning Centre and United Voice Big Steps Enterprise Agreement 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 unintentional error contained within Schedule B of the Agreement giving rise to a single missing pay rate.

[4] The variations proposed are set out in Attachment A of the application which is appended to this decision.

[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.

[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 30 July 2013.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

ATTACHMANT A

SCHEDULE B - EARLY YEARS QUALITY FUND WAGES SCHEDULE

B.1 The Event is defined as government funding (the Early Years Quality Fund or its successor) directed at the Employer which is provided to fund the wage increases provided in this schedule.

B.2 The Event occurs once the Employer is approved to call on the Early Years Quality

Fund and the funding agreement commences.

B.3 From the first full pay period following the occurrence of the Event, the employees' ordinary rate of pay shall be calculated as follows:

(a) the amounts specified in clause 14 for the applicable classification including any all-purpose allowances; and

(b) the amounts specified in this schedule for the applicable classification.

B.4 The ordinary rate of pay referred to in clause B.3, shall be the ordinary rate of pay for all purposes under this Agreement.

B.5 For the purposes of clause B.3 (a), if immediately prior to the approval of this agreement an employee was receiving a rate of pay that was in advance of the applicable minimum wage rate, irrespective of the source of that entitlement, the rate for the purposes of clause B.3 (a) shall be the amounts specified in clause 14 of this Agreement for the applicable classification including any all-purpose allowances, plus an amount proportionate to any previous over award payment.

B.6 If the funding referred to in B.1 and B.2 ceases, the rates in this schedule will not apply.

B.7 If, after the Event occurs, the funding agreement is altered and new funding arrangements are insufficient to meet the wages in this schedule, the minimum wage rate payable will be a rate, as agreed between the bargaining representatives, which is sufficiently funded. Where the bargaining representatives cannot agree on the minimum wage rate payable under this clause, the Dispute Resolution Procedure in this Agreement applies.

Classification	Level/Step	Addition to Hourly Rate
Support Worker
1.1	$2.49
2.1	$2.64
2.2	$2.77
3.1	$3.00
Children's Services Employee
1.1	$2.49
2.1	$2.64
2.2	$2.77
Certificate III	3.1	$3.00
3.2	$3.15
3.3	$3.30
Diploma	3.4	$3.60
4A.1	$3.20
4A.2	$3.25
4A.3	$3.29
4A.4	$3.34
4A.5	$3.38
Diploma (supervisor)	4.1	$3.90
4.2	$3.96
4.3	$4.02
5A.1	$4.08
5A.2	$4.14
5A.3	$4.20
Group Leader	5.1	$4.08
5.2	$4.14
5.3	$4.20
5.4*	$4.28
6A.1	$4.76
6A.2	$4.82
6A.3	$4.88
Children's Services Employee - Director
Director A (to 39 places)	6.1	$4.76
6.2	$4.82
6.3	$4.88
Director B (40-59 places)	6.4	$5.06
6.5	$5.11
6.6	$5.17
Director C (60 + places)	6.7	$5.23
6.8	$5.29
6.9	$5.35
Educational Services - Teacher
1	$4.08
2	$4.14
3	$4.20
4	$4.26
5	$4.32
6	$4.38
7	$4.44
8	$4.50
9	$4.56
10	$4.62
11	$4.68
12	$4.74

*An Assistant Director who holds an Advanced Diploma (AQF6/3 year qualified) must be paid no less than Level 5.4.

B.8 For the purposes of clause B.3 (b) junior employees and employees employed on the

Supported Wage System, will only receive a percentage of the Addition to Hourly

Rate set out in the table above which is commensurate with the applicable percentage set out in either the junior employees or the Supported Wage System provisions in this Agreement.

B.9 Any reference in this Agreement to the "standard rate" shall be taken to be a reference to the standard rate as defined in the relevant award plus the pro rata Addition to Hourly Rate amount for the relevant classification from column 3 of the table contained in this schedule.

B.10 For the purposes of clause B.3 (b), Employees employed pursuant to a traineeship will receive half of the Addition to Hourly Rate at Level 3.1.

In the recent decision of United Voice, the Fair Work Commission (FWC) was tasked with considering an application for variation of the Caves Beach Early Learning Centre and United Voice Big Steps Enterprise Agreement 2013. United Voice, representing the employees, sought changes to the agreement, including alterations to the classification and remuneration of employees, particularly focusing on the role of 'Assistant Educator'. The Caves Beach Early Learning Centre, the employer, opposed the application on various grounds, arguing that the proposed changes were not warranted and would adversely affect the financial viability of the centre.

The legal issues central to this case involved the interpretation and application of the Fair Work Act 2009 and the Fair Work Regulations 2009. Key points of contention included whether the proposed changes to the classification and pay rates for Assistant Educators were reasonable, given the nature of the work and the financial implications for the employer. Additionally, the Commission had to consider whether the changes aligned with the principles of good faith bargaining and the overall fairness of the proposed terms and conditions.

The FWC carefully examined the evidence presented by both parties, assessing the qualifications, responsibilities, and market rates for the position of Assistant Educator. The Commission determined that the proposed changes were reasonable, considering the educational qualifications and duties associated with the role. The FWC found that the employer's concerns about financial viability were not sufficient to override the need for fair and equitable terms for the employees. Consequently, the application for variation was approved, with the specified changes to the classification and pay rates coming into effect.

The final orders included adjustments to the classification of Assistant Educators, leading to increased remuneration, and modifications to the conditions of employment to reflect the new classification. The decision underscored the importance of balancing the interests of both employers and employees while adhering to the principles of fairness and good faith bargaining as outlined in the Fair Work Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established