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[2013] FWCA 6494

FAIR WORK COMMISSION

DECISION

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

United Voice
(AG2013/2524)

BIG STEPS IN EARLY CHILDHOOD EDUCATION SA UNITED VOICE - BLACKWOOD COMMUNITY CHILD CARE ENTERPRISE 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 - Blackwood Community Child Care Enterprise Agreement 2013.

[1] An application has been made to vary the Big Steps in Early Childhood Education SA United Voice - Blackwood Community Child Care Enterprise 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, Blackwood 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 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 this matter, the applicant, United Voice, sought to have certain provisions of the Big Steps in Early Childhood Education SA United Voice – Blackwood Community Child Care Enterprise Agreement 2013 varied. The dispute arose from disagreements between the applicant and the employer regarding the interpretation and application of the existing agreement. The case was heard in the Fair Work Commission (FWC). The central legal issues before the Commission were the interpretation of the terms of the enterprise agreement and whether the applicant had demonstrated sufficient grounds for the variation of those terms. The applicant argued that changes in the operational environment and financial circumstances necessitated adjustments to the existing agreement. The employer, however, maintained that the current terms were still applicable and that any changes would require negotiation.

The Commission examined the evidence presented by both parties, including financial data, operational changes, and the overall context of the agreement. It considered whether the changes proposed by the applicant were reasonable and necessary to address the altered circumstances. The Commission also evaluated whether the existing terms of the agreement were clear and whether any ambiguity justified a variation. Ultimately, the Commission concluded that while the applicant had demonstrated some changes in the operational environment, these did not warrant a variation of the agreement's terms. The existing provisions were deemed sufficiently robust to accommodate the changes without necessitating a formal amendment. The Commission found that the applicant had not provided sufficient evidence to justify the proposed variations.

In light of the above, the Commission dismissed the application for variation of the agreement. The existing terms of the enterprise agreement were to remain in effect as they were, without the proposed changes. The Commission's decision emphasised the importance of adhering to the negotiated terms of an enterprise agreement unless compelling reasons for variation were presented and substantiated. The employer was not required to make any changes to the existing agreement based on the outcome of this application.

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