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[2013] FWCA 5901

FAIR WORK COMMISSION

DECISION

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

United Voice
(AG2013/2377)

BIG STEPS IN EARLY CHILDHOOD EDUCATION AND CARE SA UNITED VOICE - EMU COMMUNITY CHILDREN'S CENTRE INC 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 - Emu Community Children's Centre Inc Enterprise Agreement 2013.

[1] An application has been made to vary the Big Steps in Early Childhood Education and Care SA United Voice - Emu Community Children's Centre Inc 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, Emu Community Children’s 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 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 the Emu Community Children's Centre Inc to vary the existing Enterprise Agreement with United Voice. The dispute centred on several issues related to the implementation and interpretation of the agreement, particularly focusing on employee entitlements and conditions. The case was heard in the Fair Work Commission of Australia.

The central legal issues before the Commission were whether certain clauses in the Enterprise Agreement required clarification or modification, and if so, what the appropriate variations should be. The applicant argued that specific provisions were ambiguous or had become impractical due to changes in circumstances since the agreement was signed. The respondent, United Voice, contested the need for changes, asserting that the existing terms were clear and sufficient.

The Commission carefully examined the language of the Enterprise Agreement and the submissions from both parties. It found that certain clauses indeed required clarification to ensure fairness and practicality in their application. The Commission made specific variations to the agreement, providing detailed explanations for each change. These variations were aimed at resolving ambiguities and adapting to the changing operational environment.

The Commission ordered that the Enterprise Agreement be varied as specified in the decision, with the changes to take effect from a date determined by the Commission. Both parties were directed to take necessary steps to implement the variations within a specified timeframe. The decision provided a clear and reasoned pathway for the implementation of the agreed changes.

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