United Voice

[2013] FWCA 5985

FAIR WORK COMMISSION

DECISION

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

United Voice
(AG2013/2405)

BIG STEPS IN EARLY CHILDHOOD EDUCATION AND CARE SA UNITED VOICE - TOPSY TURVY CHILD CARE CENTRE ENTERPRISE AGREEMENT 2013

Children's services
COMMISSIONER STEEL	ADELAIDE, 21 AUGUST 2013

Application for variation of the Big Steps in Early Childhood Education and Care SA United Voice - Topsy Turvy Child Care Centre Enterprise Agreement 2013.

[1] An application has been made to vary the Big Steps in Early Childhood Education and Care SA United Voice - Topsy Turvy Child Care Centre 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, The Trustee for the Bretag Family Trust 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 9 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	1.1	$2.49
Level 2.1 - On commencement	2.1	$2.64
Level 2.2 - After 1 year	2.2	$2.77
Level 3.1 - On commencement	3.1	$3.00
Children's Services Employee
Level 1.1 - On commencement	1.1	$2.49
Level 2.1 - On commencement	2.1	$2.64
Level 2.2 - After 1 year	2.2	$2.77
Level 3A.1 - On commencement	3A.1	$2.95
Level 3A.2 - After 1 year	3A.2	$3.00
Level 3.1 - On commencement	3.1	$3.00
Level 3.2 - After 1 year	3.2	$3.15
Level 3.3 - After 2 year	3.3	$3.30
Level 3.4 (Diploma)	3.4	$3.60
Level 4A.1 - On commencement	4A.1	$3.20
Level 4A.2 - After 1 year	4A.2	$3.25
Level 4A.3 - After 2 year	4A.3	$3.29
Level 4A.4 - After 3 year	4A.4	$3.34
Level 4A.5 - After 4 year	4A.5	$3.38
Level 4.1 - On commencement	4.1	$3.90
Level 4.2 - After 1 year	4.2	$3.96
Level 4.3 - After 2 year	4.3	$4.02
Level 5A.1 - On commencement	5A.1	$4.08
Level 5A.2 - After 1 year	5A.2	$4.14
Level 5A.3 - After 2 year	5A.3	$4.20
Level 5.1 - On commencement	5.1	$4.08
Level 5.2 - After 1 year	5.2	$4.14
Level 5.3 - After 2 year	5.3	$4.20
Level 5.4 (Assistant Director with Advanced Diploma)	5.4	$4.28

Classification	Addition to Hourly Rate
Children's Services Employee - Director
Level 6.1 - On commencement	$4.76
Level 6.2 - After 1 year	$4.82
Level 6.3 - After 2 year	$4.88
Level 6.4 - On commencement	$5.06
Level 6.5 - After 1 year	$5.11
Level 6.6 - After 2 year	$5.17
Level 6.7 - On commencement	$5.23
Level 6.8 - After 1 year	$5.29
Level 6.9 - 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 applicant, United Voice, sought to vary the Big Steps in Early Childhood Education and Care SA United Voice - Topsy Turvy Child Care Centre Enterprise Agreement 2013. The dispute was between the applicant and the respondent, who were engaged in negotiations for a new enterprise agreement. The case was heard in the Fair Work Commission.

The primary legal issue before the Commission was whether the proposed variations to the enterprise agreement were in the best interests of the employees and the employer, and whether the application met the criteria for variation under the Fair Work Act 2009. The Commission had to consider the impact of the proposed changes on the employees' terms and conditions of employment, as well as the overall fairness and reasonableness of the changes.

The Commission found that the proposed variations to the enterprise agreement were in the best interests of both the employees and the employer. The changes were deemed necessary to address the changing needs of the childcare industry and to ensure the financial sustainability of the employer. The Commission also considered the fairness and reasonableness of the proposed changes, taking into account the parties' bargaining positions and the overall context of the agreement. Based on this analysis, the Commission determined that the application for variation met the criteria under the Fair Work Act 2009 and granted the application.

The Commission ordered that the Big Steps in Early Childhood Education and Care SA United Voice - Topsy Turvy Child Care Centre Enterprise Agreement 2013 be varied as per the terms outlined in the application. The changes were to be effective from the date of the Commission's decision and were to be implemented by the parties in accordance with the new agreement. The Commission also directed that the parties continue to negotiate in good faith to reach a new enterprise agreement that would better reflect the needs of the industry and the employees.

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