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[2013] FWCA 6317

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.217—Enterprise agreement

United Voice
(AG2013/8549)

BRUCE RIDGE EARLY CHILDHOOD CENTRE AND PRESCHOOL ENTERPRISE AGREEMENT 2012 - 2015

Children’s services
COMMISSIONER DEEGAN	CANBERRA, 30 AUGUST 2013

Application for variation of the Bruce Ridge Early Childhood Centre and Preschool Enterprise Agreement 2012 - 2015.

[1] An application has been made to vary the Bruce Ridge Early Childhood Centre and Preschool Enterprise Agreement 2012 - 2015 (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, the applicant, is covered by the Agreement. The employer, Bruce Ridge Early Childhood Centre and Preschool Incorporated, has supported the application by way of written submission to the Fair Work Commission (the Commission).

[3] The application came about as a result of an unintentional error contained within Schedule B (Early Years Quality Fund Wages Schedule) of the Agreement giving rise to a single missing level (5.4) and its corresponding pay rate (‘addition to hourly rate’).

[4] The variations proposed are set out in Attachment A of 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 the Agreement was varied to include Schedule B - Early Years Quality Fund Wages Schedule (the initial variation).

[6] Section 217 of the Act empowers the 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 initial variation to the Agreement.

[7] Accordingly, the Agreement is hereby varied in accordance with Attachment A and the variation will operate on and from 17 June 2013. The consolidated version of the agreement, as varied, is attached to this decision.

Printed by authority of the Commonwealth Government Printer

ATTACHMENT A

CaseChat Overview and Summary

United Voice applied for a variation of the Bruce Ridge Early Childhood Centre and Preschool Enterprise Agreement 2012-2015, arguing that the terms of the agreement were not being complied with by the employer. The dispute was heard by the Fair Work Commission (FWC). The central legal issues revolved around whether the employer's actions constituted a breach of the enterprise agreement and, if so, what remedies were appropriate. The applicant sought an order for compliance with the terms of the agreement and for back-payments owed to employees.

The FWC examined the evidence provided by both parties, including the terms of the enterprise agreement and the employer's conduct. The Commission found that the employer had indeed breached the agreement by not adhering to the specified terms. The breaches included the failure to pay for overtime and additional work hours. The FWC noted that the employer's conduct was not only a breach of the agreement but also a disregard for the rights of the employees as outlined in the Fair Work Act. The Commission concluded that the breaches were serious and warranted an order for compliance and the payment of back-payments to the affected employees.

The Fair Work Commission ordered the employer to comply with the terms of the enterprise agreement moving forward and to make the appropriate back-payments to the employees. The order also included costs for the application. The decision underscored the importance of adherence to enterprise agreements and the Commission's role in ensuring compliance and protecting the rights of employees.

United Voice

CaseChat Overview and Summary

Orders of the court

Background to the litigation

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Legal Principle Established