United Voice

[2013] FWCA 6500

FAIR WORK COMMISSION

DECISION

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

United Voice
(AG2013/2543)

BIG STEPS IN EARLY CHILDHOOD EDUCATION SA UNITED VOICE - OASIS COMMUNITY CHILDREN'S CENTRE 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 - Oasis Community Children's Centre Collective Agreement 2013.

[1] An application has been made to vary the Big Steps in Early Childhood Education SA United Voice - Oasis Community Children's 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, Oasis 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 23 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 an application for variation of the Big Steps in Early Childhood Education SA United Voice – Oasis Community Children's Centre Collective Agreement 2013, the applicant sought to vary the agreement to enable the employer to recruit additional staff. The respondent opposed the application. The case was heard in the Fair Work Commission. The primary legal issue before the Commission was whether the proposed changes to the collective agreement were necessary to address a significant change in circumstances, as required under section 231 of the Fair Work Act 2009. The applicant argued that the changes were necessary to respond to a significant increase in enrolments and to ensure the safety and well-being of the children in the centre. The respondent contended that the applicant had not demonstrated a significant change in circumstances warranting a variation to the collective agreement.

The Commission considered the evidence presented by both parties and examined the terms of the existing collective agreement. The Commission found that the applicant had demonstrated a significant change in circumstances, as evidenced by the substantial increase in enrolments and the associated impact on staffing levels and the ability to provide adequate care for the children. The Commission also noted that the changes sought were limited in scope and were directly related to addressing the increased enrolments. The Commission concluded that the applicant had met the threshold for variation under section 231 of the Act and that the proposed changes were necessary to ensure the safety and well-being of the children. As a result, the application for variation was approved.

The Fair Work Commission approved the application for variation of the collective agreement, allowing the employer to recruit additional staff to address the significant increase in enrolments. The Commission's decision was based on the evidence of a significant change in circumstances and the necessity of the proposed changes to ensure the safety and well-being of the children in the centre. The Commission emphasised that the changes were limited in scope and directly related to addressing the impact of the increased enrolments. The respondent's opposition to the application was accordingly dismissed.

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Background to the litigation

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Legal Principle Established