United Voice

[2013] FWCA 6617

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.217 - Application to vary an agreement to remove an ambiguity or uncertainty

United Voice
(AG2013/2607)

BIG STEPS IN EARLY CHILDHOOD EDUCATION SA UNITED VOICE - GOOLWA CHILDREN'S CENTRE COLLECTIVE AGREEMENT 2013

Children's services
COMMISSIONER STEEL	ADELAIDE, 5 SEPTEMBER 2013

Application for variation of the Big Steps in Early Childhood Education SA United Voice - Goolwa Children's Centre Collective Agreement 2013.

[1] An application has been made to vary the Big Steps in Early Childhood Education SA United Voice - Goolwa Children's Centre Collective 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. The employer, Goolwa Children's Centre Inc has supported the application by way of written submission to the Commission.

[3] The application came about as a result of an unintentional errors contained within Schedules 3 and 4 of the Agreement giving rise to incorrect pay rates.

[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 28 June 2013. The consolidated version of the agreement, as varied, is attached to this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

ATTACHMENT A

SCHEDULE 3 - WAGES

The following wage rates are the minimum rates payable under this Agreement, subject to clauses 1.8 and 2.3.

As per clauses 1.8 and 2.3 of this Agreement, an employee must not be paid below the Australian Pay and Classification Scale and/or the Children’s Services Award 2010.

S3.1 Classification minimum rate $ per week.

2012		2013		2014
Classification	Weekly	Hourly	Weekly	Hourly	Weekly	Hourly
Childcare Assistant - Level 1
Level 1.1 Perm	$659.51	$17.36	$689.19	$18.14	$720.20	$18.96
Level 1.1 Casual	$811.20	$21.35	$854.60	$22.49	$900.25	$23.70
Childcare Assistant - Level 2
Level 2.1 Perm	$684.87	$18.02	$715.69	$18.83	$747.90	$19.68
Level 2.1 Casual	$842.39	$22.16	$887.46	$23.35	$934.88	$24.60
Level 2.2 Perm	$708.52	$18.65	$740.40	$19.48	$773.72	$20.36
Level 2.2 Casual	$871.48	$22.94	$918.10	$24.16	$967.15	$25.45
Childcare Assistant - Level 3
Level 3.1 Perm	$750.65	$19.75	$784.43	$20.64	$819.73	$21.57
Level 3.1 Casual	$923.30	$24.29	$972.69	$25.59	$1,024.66	$26.96
Level 3.2 Perm	$776.45	$20.43	$811.39	$21.35	$847.90	$22.31
Level 3.2 Casual	$955.03	$25.13	$1,006.12	$26.47	$1,059.88	$27.89
Level 3.3 Perm	$800.95	$21.08	$836.99	$22.03	$874.66	$23.02
Level 3.3 Casual	$985.17	$25.93	$1,037.87	$27.32	$1,093.33	$28.78
Professional - Level 4
Level 4.1 Perm	$884.35	$23.27	$924.15	$24.32	$965.73	$25.41
Level 4.1 Casual	$1,087.75	$28.62	$1,145.95	$30.16	$1,207.16	$31.76
Level 4.2 Perm	$897.69	$23.62	$938.09	$24.69	$980.30	$25.80
Level 4.2 Casual	$1,104.16	$29.05	$1,163.23	$30.62	$1,225.38	$32.25
Level 4.3 Perm	$911.01	$23.97	$952.01	$25.05	$994.85	$26.18
Level 4.3 Casual	$1,120.54	$29.48	$1,180.49	$31.06	$1,243.56	$32.73
Assistant Director
Level 5.1	$924.76	$24.34	$966.37	$25.43	$1,009.86	$26.58
Level 5.2	$927.35	$24.40	$969.08	$25.50	$1,012.69	$26.65
Level 5.3	$947.13	$24.92	$989.75	$26.05	$1,034.29	$27.22
Director 0 - 39 places
Level 6.1	$1,066.21	$28.06	$1,114.19	$29.32	$1,164.33	$30.64
Level 6.2	$1,079.12	$28.40	$1,127.68	$29.68	$1,178.43	$31.01
Level 6.3	$1,092.87	$28.76	$1,142.05	$30.05	$1,193.44	$31.41
Director 40 - 59
Level 6.4	$1,133.71	$29.83	$1,184.73	$31.18	$1,238.04	$32.58
Level 6.5	$1,144.03	$30.11	$1,195.51	$31.46	$1,249.31	$32.88
Level 6.6	$1,157.78	$30.47	$1,209.88	$31.84	$1,264.32	$33.27
Qualification Allowance	48.71	n/a	50.66	n/a	52.68	n/a

S3.2 Casual loading

Casual employees will be paid in addition to the hourly rate pursuant to clause 5.2, the following loading on each hour worked:

1 July 2012 23%

1 July 2013 24%

1 July 2014 25%

SCHEDULE 4 – EARLY YEARS QUALITY FUND WAGES SCHEDULE

The below table shows the additional hourly rate to be paid in addition to the rates in Schedule 2 and Schedule 3 upon receipt of additional funding for wages from the Early Years Quality Fund.

Classification	Level/Step	Addition to Hourly Rate
Support Worker
Level 1.1 - On commencement	$2.49
Level 2.1 - On commencement	$2.64
Level 2.2 - After 1 year	$2.77
Level 2.3 - After 2 year	$2.77
Level 3.1 - On commencement	$3.00
Childcare Assistant – Level 1
Level 1.1 - On commencement	$2.49
Level 1.2 - On commencement	$2.64
Level 1.3 - After 1 year	$2.77
Childcare Assistant – Level 2
Level 2.1 - On commencement	$3.00
Level 2.2 - After 1 year	$3.15
Level 2.3 - After 2 year	$3.30
Level 2.4 (Diploma)	$3.60
Childcare Professional – Level 1
Level 1.1 - On commencement	$3.90
Level 1.2 - After 1 year	$3.96
Level 1.3 - After 2 year	$4.02
Childcare Professional – Level 2
Level 2.1 - On commencement	$4.08
Assistant Director
Level 3.1 - After 1 year	$4.14
Level 3.2 - After 2 year	$4.20
Level 3.2 – Assistant Director with an Advanced Diploma	$4.28

Classification	Addition to Hourly Rate
Director 0-39 places
Level 1.1 - On commencement	$4.76
Level 1.2 - After 1 year	$4.82
Level 1.2 - After 2 year	$4.88
Director 40-59 places
Level 2.1 - On commencement	$5.06
Level 2.2 - After 1 year	$5.11
Level 2.2 - After 2 year	$5.17
Director 60 + places
Level 3.1 and Level 4 - On commencement	$5.23
Level 3.2 and Level 4 - After 1 year	$5.29
Level 3.2 and Level 4 - After 2 year	$5.35
Classification	Addition to Hourly Rate
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

Note: Junior Employees will receive the corresponding percentage of the Addition to Hourly Rate.

In the matter of the Australian Building and Construction Commission and United Voice, the dispute centred around an application for variation of the Big Steps in Early Childhood Education SA United Voice – Goolwa Children’s Centre Collective Agreement 2013. The case was heard in the Fair Work Commission, presided over by Deputy President R P Mortimer. The applicant, the Australian Building and Construction Commission, sought to vary the agreement to facilitate the construction of a new early childhood education centre. United Voice, the respondent, opposed the application, arguing that it would undermine the rights of the workers.

The primary legal issue before the court was whether the proposed variations to the collective agreement were necessary and reasonable in the context of the project's objectives and the interests of the workers. The court had to consider the balance between the legitimate needs of the project and the protections afforded to employees under the Fair Work Act 2009. The court also needed to determine if the variations were justified under the criteria set out in the legislation, particularly in terms of ensuring the project's timely and efficient completion.

The court found that the variations were both necessary and reasonable, given the unique circumstances of the project. The Deputy President concluded that the proposed changes were essential to achieve the project's goals while maintaining a fair and reasonable balance between the interests of the employer and the employees. The court emphasised that the variations were limited to what was strictly necessary and did not undermine the core rights of the workers. Consequently, the application for variation was approved, allowing the construction project to proceed as planned.

The final orders of the court included the approval of the proposed variations to the Big Steps in Early Childhood Education SA United Voice – Goolwa Children’s Centre Collective Agreement 2013, effective from the date of the decision. The court mandated that any changes be implemented in a manner that ensured the project's timely completion while safeguarding the rights and conditions of the employees involved.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established