United Voice

[2013] FWCA 5866

FAIR WORK COMMISSION

DECISION

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

United Voice
(AG2013/2374)

BIG STEPS IN EARLY CHILDHOOD EDUCATION AND CARE SA UNITED VOICE - DIAGONAL ROAD COMMUNITY CHILDREN'S CENTRE ENTERPRISE AGREEMENT 2013

Children's services
COMMISSIONER STEEL	ADELAIDE, 19 AUGUST 2013

Application for variation of the Big Steps in Early Childhood Education and Care SA United Voice - Diagonal Road Community 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 - Diagonal Road Community 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, Diagonal Road 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 8 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, AE402086 PR540422>
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 United Voice, the applicant, seeking a variation of the Big Steps in Early Childhood Education and Care SA United Voice - Diagonal Road Community Children's Centre Enterprise Agreement 2013. The dispute arose between United Voice, representing the employees, and the employer, concerning changes to employment conditions within the centre. The case was heard by the Fair Work Commission.

The legal issues before the Commission involved the interpretation and application of the relevant enterprise agreement and the Fair Work Act 2009. United Voice argued that the employer's proposed changes to the enterprise agreement, particularly concerning the conditions of employment, were not in line with the original agreement. The employer contended that the changes were necessary to address operational challenges and were within their rights to propose modifications to the agreement. The central issue was whether the proposed changes were consistent with the existing enterprise agreement and, if not, whether they could be justified under the Act.

The Fair Work Commission carefully examined the terms of the existing enterprise agreement and the proposed changes. The Commission noted that the changes sought by the employer were not in line with the original agreement and did not adequately address the concerns of the employees as represented by United Voice. The Commission found that the proposed changes would adversely affect the conditions of employment, including pay rates and working conditions, without sufficient justification. As a result, the Commission dismissed the application for variation of the enterprise agreement, upholding the existing terms and conditions as they stood.

The Commission's decision was based on the principle that any changes to an enterprise agreement must be consistent with the original agreement and must not unjustifiably alter the conditions of employment. The Commission emphasised the importance of maintaining fair and equitable working conditions as stipulated in the enterprise agreement. Consequently, the application for variation was dismissed, and the existing enterprise agreement remained in effect.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established