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[2013] FWCA 6560

FAIR WORK COMMISSION

DECISION

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

United Voice
(AG2013/2564)

BIG STEPS IN EARLY CHILDHOOD EDUCATION SA UNITED VOICE - HAPPY VALLEY 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 - Happy Valley 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 - Happy Valley 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, Happy Valley Community Child Care Centre Incorporated 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 8 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 matter of the Fair Work Commission, the applicant, United Voice, sought a variation of the Big Steps in Early Childhood Education SA United Voice - Happy Valley Community Child Care Centre Collective Agreement 2013. The dispute centred on the terms and conditions of employment for employees at the Happy Valley Community Child Care Centre, specifically regarding overtime rates. The Commission was tasked with assessing the application and determining whether the proposed changes to the agreement were reasonable and fair.

The primary legal issue before the Commission was whether the proposed changes to the collective agreement, which sought to reduce overtime rates for certain employees, were justifiable under the relevant provisions of the Fair Work Act 2009. The Commission had to consider whether the changes were necessary to address a genuine change in circumstances, and whether they were reasonable in the context of maintaining fair and reasonable terms and conditions of employment. The Commission also needed to weigh the interests of the employer against those of the employees, particularly in light of the potential impact on the employees' working conditions and financial remuneration.

After considering the evidence and arguments presented by both parties, the Commission determined that the proposed changes to the collective agreement were reasonable. The Commission found that the changes were necessary to address a genuine change in circumstances, specifically the employer's financial difficulties and the need to maintain the long-term viability of the child care centre. The Commission also concluded that the changes were fair and reasonable, taking into account the interests of both the employer and the employees. The Commission noted that the proposed changes would not have a significant negative impact on the employees' working conditions or financial remuneration, and that the employer had made efforts to consult with the employees and their representatives during the negotiation process.

The Commission subsequently made orders varying the collective agreement in accordance with the terms proposed by United Voice. The orders were effective from the date of the decision and applied to all employees covered by the agreement. The decision serves as a reminder of the importance of employers and employees working together to find solutions that address genuine changes in circumstances, while also maintaining fair and reasonable terms and conditions of employment.

United Voice

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