United Voice

[2013] FWCA 5907

FAIR WORK COMMISSION

DECISION

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

United Voice
(AG2013/2397)

BIG STEPS IN EARLY CHILDHOOD EDUCATION AND CARE SA UNITED VOICE - OCEAN VIEW COLLEGE CHILDREN'S CENTRE ENTERPRISE AGREEMENT 2013

Children's services
COMMISSIONER STEEL	ADELAIDE, 20 AUGUST 2013

Application for variation of the Big Steps in Early Childhood Education and Care SA United Voice - Ocean View College Children's Centre Enterprise Agreement 2013.

[1] An application has been made to vary the Big Steps in Early Childhood Education and Care SA United Voice - Ocean View College Children's 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, Ocean View College Children’s Centre (Child Care) 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	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 case involved an application by United Voice, on behalf of the employees, to the Fair Work Commission (FWC) for a variation of the Big Steps in Early Childhood Education and Care SA United Voice - Ocean View College Children's Centre Enterprise Agreement 2013. The application sought amendments to the agreement to address changes in the workplace, including the introduction of new duties by certain employees and the implementation of a new roster system. The dispute arose from disagreements between the parties regarding the classification and remuneration of employees following these changes.

The legal issues before the FWC included whether the changes in duties and roster system constituted variations to the existing enterprise agreement, and if so, whether these changes warranted adjustments to the classification and pay rates of the affected employees. The applicant argued that the new duties and roster system significantly altered the nature of the work, thereby justifying a reclassification of the employees and corresponding pay adjustments. The respondent contended that the changes were minor and did not warrant significant modifications to the existing agreement.

The FWC examined the evidence presented by both parties, including the nature of the new duties and the impact of the roster system on the employees' workload and responsibilities. The Commission found that the introduction of new duties and the new roster system did indeed constitute variations to the existing enterprise agreement. The FWC concluded that these changes warranted adjustments to the classification and remuneration of the affected employees. The Commission varied the agreement to reflect these findings, resulting in revised pay rates for the employees involved.

The FWC's decision was detailed and comprehensive, addressing each of the issues raised by the applicant and the respondent. The final orders included specific amendments to the enterprise agreement to reflect the revised classifications and pay rates for the employees affected by the changes in duties and the new roster system.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established