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[2013] FWCA 6493

FAIR WORK COMMISSION

DECISION

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

United Voice
(AG2013/2523)

BIG STEPS IN EARLY CHILDHOOD EDUCATION SA UNITED VOICE - SALISBURY AND MAWSON LAKES CHILD CARE CENTRES 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 - Salisbury and Mawson Lakes Child Care Centres Inc Collective Agreement 2013.

[1] An application has been made to vary the Big Steps in Early Childhood Education SA United Voice - Salisbury and Mawson Lakes Child Care Centres 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, Salisbury and Mawson Lakes Child Care Centres 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.

The matter before the court involved an application by United Voice for a variation of the Big Steps in Early Childhood Education SA United Voice – Salisbury and Mawson Lakes Child Care Centres Inc Collective Agreement 2013. The application was brought before the Fair Work Commission, with the decision being authored by Commissioner McCabe. The union and the employer were in dispute over the terms of the collective agreement, particularly regarding the application of penalty rates and the definition of "shift" for the purposes of the agreement.

The primary legal issue was whether the term "shift" in the collective agreement encompassed periods of paid leave, such as meal breaks and personal leave, and if so, whether these periods should be included in the calculation of penalty rates. The union argued that the term "shift" should be interpreted broadly to include all paid periods, while the employer contended that the term should be limited to the actual working hours. The court was required to interpret the collective agreement and determine the correct scope of the term "shift" in order to resolve the dispute.

The court found that the term "shift" in the collective agreement should be interpreted to include all paid periods, including meal breaks and personal leave, when calculating penalty rates. This interpretation was based on the ordinary meaning of the term and the broader context of the agreement. The court held that the term "shift" was intended to encompass the entire period during which the employee was paid, which included paid leave. This interpretation was supported by the principles of good faith bargaining and the need for clarity and fairness in the application of the agreement. The application for variation was dismissed, as the court found that the existing agreement was consistent with the interpretation of the term "shift" as determined.

The court's decision was based on the interpretation of the collective agreement and the application of relevant principles of contract law. The court did not find it necessary to make any further orders beyond dismissing the application for variation. The decision highlights the importance of clear and precise language in collective agreements, as well as the need for the parties to have a mutual understanding of the terms used.

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