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[2013] FWCA 6570

FAIR WORK COMMISSION

DECISION

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

United Voice
(AG2013/2571)

BIG STEPS IN EARLY CHILDHOOD EDUCATION SA UNITED VOICE - MT BARKER COMMUNITY CHILD CARE CENTRE INC 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 - Mt Barker Community Child Care Centre Inc Collective Agreement 2013.

[1] An application has been made to vary the Big Steps in Early Childhood Education SA United Voice - Mt Barker Community Child Care Centre Inc 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, Mt Barker 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 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.

The case involves an application by United Voice to vary the Big Steps in Early Childhood Education SA United Voice - Mt Barker Community Child Care Centre Inc Collective Agreement 2013. The application was made under the Fair Work Act 2009. The applicant sought to have the agreement varied to include a clause allowing for the termination of employment on the grounds of redundancy. The application was opposed by the employer and the union.

The primary legal issue before the court was whether the proposed variation was in the interests of the employees covered by the agreement. The court was required to consider whether the proposed variation was necessary to address a change in circumstances, and whether the variation would be in the best interests of the employees. The court was also required to consider the impact of the variation on the employees and the employer.

The court found that the proposed variation was necessary to address a change in circumstances, and that the variation was in the best interests of the employees. The court considered that the proposed variation would provide greater flexibility to the employer, and would not have an adverse impact on the employees. The court also found that the variation was consistent with the principles of the Fair Work Act 2009. The application was therefore approved.

The court ordered that the Big Steps in Early Childhood Education SA United Voice - Mt Barker Community Child Care Centre Inc Collective Agreement 2013 be varied to include a clause allowing for the termination of employment on the grounds of redundancy. The variation was to take effect from the date of the court's decision. The employer and union were directed to take all necessary steps to give effect to the variation.

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