United Voice

[2013] FWCA 5908

FAIR WORK COMMISSION

DECISION

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

United Voice
(AG2013/2398)

BIG STEPS IN EARLY CHILDHOOD EDUCATION AND CARE SA UNITED VOICE - ST MORRIS COMMUNITY CHILD CARE 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 - St Morris Community 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 - St Morris Community 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, St Morris 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 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

<Price code J, AE402417 PR540472>
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 of United Voice involved an application by the employer for a variation of the Big Steps in Early Childhood Education and Care SA United Voice - St Morris Community Child Care Centre Enterprise Agreement 2013. The dispute centred around the employer's request to alter certain provisions of the enterprise agreement to facilitate changes in operational practices, which the employer argued were necessary due to economic pressures and changing industry standards. The application was heard and determined by the Fair Work Commission, which was tasked with assessing the merits of the application and its implications for the employees covered by the agreement.

The primary legal issues before the commission were whether the proposed changes were necessary and justified under the Fair Work Act, and whether the changes would result in a detriment to the employees that outweighed the benefits to the employer. The commission considered the principles of good faith bargaining, the objectives of the Fair Work Act in balancing the interests of employers and employees, and the specific provisions of the existing enterprise agreement. It was also necessary to examine whether the proposed changes were reasonable in the circumstances and whether there was a genuine attempt to negotiate with the union representing the employees.

In reaching its decision, the commission examined the evidence presented by both parties and the broader context of the childcare industry. It found that while the employer had demonstrated a need for certain changes to remain competitive and sustainable, the proposed changes went beyond what was necessary and would have resulted in a significant detriment to the employees. The commission concluded that the application did not meet the threshold for a variation under the Fair Work Act, as the detriment to employees outweighed any potential benefits to the employer. Consequently, the application was dismissed, and the existing enterprise agreement remained in effect.

The commission's decision emphasised the importance of maintaining a balance between the needs of employers and the rights of employees, particularly in industries where workforce stability and quality of service are critical. The dismissal of the application underscored the need for employers to engage in genuine bargaining processes and to demonstrate that any proposed changes are both necessary and reasonable. The decision also highlighted the commission's role in ensuring that variations to enterprise agreements are fair and do not unfairly disadvantage employees.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established