United Voice

[2013] FWCA 6304

FAIR WORK COMMISSION

DECISION

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

United Voice
(AG2013/2519)

BIG STEPS IN EARLY CHILDHOOD EDUCATION SA UNITED VOICE - THE QUEEN ELIZABETH HOSPITAL COMMUNITY CHILD CARE CENTRE COLLECTIVE AGREEMENT 2013

Children's services
COMMISSIONER STEEL	ADELAIDE, 29 AUGUST 2013

Application for variation of the Big Steps in Early Childhood Education SA United Voice - The Queen Elizabeth Hospital Community Child Care Centre Collective Agreement 2013.

[1] An application has been made to vary the Big Steps in Early Childhood Education SA United Voice - The Queen Elizabeth Hospital Community Child Care 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, The Queen Elizabeth Hospital 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 28 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.

United Voice made an application for the variation of the Big Steps in Early Childhood Education SA United Voice – The Queen Elizabeth Hospital Community Child Care Centre Collective Agreement 2013. The application sought to vary the definition of “rostered day off” to include “rest breaks” for employees. The Fair Work Commission (FWC) was required to determine if the proposed changes were within the scope of the application and whether the changes were reasonable.

The FWC examined the scope of the application and determined that the proposed changes fell within the scope of the application. The FWC also considered the reasonableness of the proposed changes. United Voice argued that the changes were necessary to address the health and safety concerns of employees who were required to work long hours without adequate rest breaks. The FWC found that the proposed changes were reasonable and would benefit the employees by improving their health and safety. The FWC also considered the potential impact of the changes on the employer and determined that the changes were not unreasonable or unjust.

The FWC granted the application and made the proposed changes to the agreement. The changes were effective from the date of the decision and applied to all employees covered by the agreement. The FWC also ordered that the employer and United Voice consult with each other to implement the changes in a fair and reasonable manner.

CaseChat Overview and Summary

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Background to the litigation

Evidence Before The Court

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Legal Principle Established