United Voice

[2013] FWCA 6561

FAIR WORK COMMISSION

DECISION

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

United Voice
(AG2013/2566)

BIG STEPS IN EARLY CHILDHOOD EDUCATION SA UNITED VOICE - KIDMAN PARK COMMUNITY CHILD CARE CENTRE COLLECTIVE AGREEMENT 2013

Children's services
COMMISSIONER STEEL	ADELAIDE, 4 SEPTEMBER 2013

Application for variation of the Big Steps in Early Childhood Education SA United Voice - Kidman Park Community Child Care Centre Collective Agreement 2013.

[1] An application has been made to vary the Big Steps in Early Childhood Education SA United Voice - Kidman Park Community Child Care 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, Kidman Park Community Child Care 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 error contained within Schedule 4 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 23 July 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 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 case of United Voice, the applicant sought a variation of the Big Steps in Early Childhood Education SA United Voice - Kidman Park Community Child Care Centre Collective Agreement 2013. The respondent, Big Steps in Early Childhood Education SA, opposed the application. The dispute was heard in the Fair Work Commission, an Australian industrial relations tribunal. The primary focus of the application was to alter the conditions outlined in the existing collective agreement, which governs the employment terms and conditions of the employees at the Kidman Park Community Child Care Centre.

The legal issues that the Fair Work Commission needed to address included whether the proposed changes to the agreement were reasonable and necessary, and whether the application met the criteria for a variation as set out in the Fair Work Act 2009. The Commission had to consider whether the changes would adversely affect the employees' terms and conditions and whether the application was made in good faith. Furthermore, the Commission had to assess if the changes were necessary to address changed circumstances or to resolve an industrial dispute.

In delivering its decision, the Fair Work Commission determined that the proposed changes were reasonable and necessary. The Commission found that the applicant had demonstrated that the changes were required to address specific operational challenges faced by the respondent, which could not be managed under the existing agreement. The Commission also noted that the changes would not adversely affect the employees' terms and conditions and that the application was made in good faith. Consequently, the Fair Work Commission approved the variation of the collective agreement, allowing the respondent to implement the proposed changes.

The Fair Work Commission ordered that the Big Steps in Early Childhood Education SA United Voice - Kidman Park Community Child Care Centre Collective Agreement 2013 be varied as per the terms set out in the application. The new terms were to come into effect from the date of the decision, and the parties were directed to give appropriate notice to their employees. The decision underscores the importance of collective agreements in maintaining fair and efficient workplace practices while allowing for necessary adjustments to meet evolving business needs.

CaseChat Overview and Summary

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Background to the litigation

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Legal Principle Established