United Voice

[2013] FWCA 6492

FAIR WORK COMMISSION

DECISION

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

United Voice
(AG2013/2522)

BIG STEPS IN EARLY CHILDHOOD EDUCATION SA UNITED VOICE - SEAFORD DISTRICT COMMUNITY CHILDREN'S CENTRE INC COLLECTIVE AGREEMENT 2013

Children's services
COMMISSIONER STEEL	ADELAIDE, 3 SEPTEMBER 2013

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

[1] An application has been made to vary the Big Steps in Early Childhood Education SA United Voice - Seaford District Community Children's 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, Seaford District Community 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 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 12 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 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 Fair Work Commission, the applicant, United Voice, sought a variation of the agreement governing the employment conditions of educators at the Big Steps in Early Childhood Education SA Seaford District Community Children's Centre Inc. The dispute centred around the application of the Agreement to casual educators and the terms governing their remuneration, particularly in relation to penalty rates for weekend work. The Commission was tasked with interpreting the Collective Agreement and determining whether the proposed variations were necessary and appropriate.

The key legal issue before the Commission was the interpretation of the Collective Agreement, specifically Clause 6.1, which defines the scope of the Agreement and its applicability to casual educators. United Voice argued that casual educators should be covered by the Agreement, while the employer contended that the Agreement only applied to permanent employees. The Commission had to examine the language of the Agreement and any relevant precedents to ascertain the correct interpretation. Additionally, the Commission considered whether the proposed variations, which included adjustments to penalty rates for casual educators working on weekends, were justified and consistent with the principles of the Fair Work Act.

After examining the language of the Agreement and the context in which it was made, the Commission found that Clause 6.1 did indeed cover casual educators. This interpretation was supported by the broader objectives of the Agreement and the principle of fairness in employment conditions. The Commission also determined that the proposed variations regarding penalty rates were necessary to ensure that casual educators received appropriate compensation for their work on weekends, aligning with the principles of the Fair Work Act. Consequently, the application for variation was approved.

The final orders of the Commission included the variation of the Collective Agreement to ensure it applied to all educators, including casual employees, and adjustments to the penalty rates for weekend work. These changes were intended to provide equitable compensation and maintain the integrity of the employment conditions set out in the Agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established