[2013] FWCA 4236 |
FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.210 - Application for approval of a variation of an enterprise agreement
United Voice
(AG2013/6895)
COTTESLOE CHILD CARE CENTRE ENTERPRISE AGREEMENT 2012
Children's services | |
COMMISSIONER CLOGHAN | PERTH, 28 JUNE 2013 |
Application for variation of the Cottesloe Child Care Centre Enterprise Agreement 2012.
[1] This is an application by United Voice (Applicant) seeking approval of a Variation of an enterprise agreement.
[2] The application is made pursuant to s.210 of the Fair Work Act 2009 (FW Act).
[3] The enterprise agreement subject to the application is the Cottesloe Child Care Centre Enterprise Agreement 2012 (Agreement).
[4] The Agreement commenced on 30 October 2012 and its nominal expiry date is 1 February 2015.
[5] In support of the application the Applicant has provided:
● Form F23-Application for Approval of Variation of Enterprise Agreement;
● Form F23A-Employer’s Declaration in Support of Approval of Variation of Enterprise Agreement;
● Form F23B-Declaration of Employee Organisation in Support of Application for Approval of Variation of Enterprise Agreement;
● a signed varied agreement.
[6] In accordance with s.210 of the FW Act, the Agreement is varied by inserting Schedule 2 - Early Years Quality Fund Wages Schedule immediately after Schedule 1 - Rates of Pay as follows:
“Schedule 2 – Early Years Quality Fund Wages Schedule
2.1 The Event is defined as government funding (the Early Years Quality Fund or its successor) directed at the Employer which is provided to fund the wage increases in this schedule.
2.2 The Event occurs once the Employer is approved to call on the Early Years Quality Fund and the funding agreement commences.
2.3 From the first full pay period following the occurrence of the Event, the employees’ base rate of pay shall be calculated as follows:
the amounts referred to in clause 11 of this Agreement for the applicable classification including any all-purpose allowances; and
the amounts specified in this schedule for the applicable classification.
2.4 The base rate of pay referred to in clause 2.3 shall be the all-purpose rate for the purposes of calculating any penalty or overtime payments provided for in the Agreement.
2.5 All wage rates referred to in clause 11 are increased on 1 July each year by the Annual Wage Review during the period within which this Agreement is in operation.
2.6 For the purposes of clause 2.3 (a),if immediately prior to the approval of this agreement an employee was receiving a base rate of pay that was in advance of the applicable wage rate, irrespective of the source of that entitlement, the rate for the purposes of clause 2.3 (a) shall be the amounts referred to in clause 11 of this Agreement for the applicable classification including any all-purpose allowances, plus an amount proportionate to any previous over award payment.
2.7 If the funding referred to in clause 2.1 and 2.2 ceases, the rates in this schedule will not apply.
2.8 If, after the Event occurs, the funding agreement is altered and new funding arrangements are insufficient to meet the wages in this schedule, the minimum wage rate payable will be a rate, as agreed between the bargaining representatives, which is sufficiently funded. Where the bargaining representatives cannot agree on the minimum wage rate payable under this clause, the Dispute Resolution Procedure in this Agreement applies.
Classification | Level/Step | Addition to Hourly Rate |
Support Worker | ||
1.1 | $2.49 | |
2.1 | $2.64 | |
2.2 | $2.77 | |
3.1 | $3.00 | |
Children's Services Employee | ||
1.1 | $2.49 | |
2.1 | $2.64 | |
2.2 | $2.77 | |
3A.1 | $2.95 | |
3A.2 | $3.00 | |
Certificate III | 3.1 | $3.00 |
3.2 | $3.15 | |
3.3 | $3.30 | |
Diploma | 3.4 | $3.60 |
4A.1 | $3.20 | |
4A.2 | $3.25 | |
4A.3 | $3.29 | |
4A.4 | $3.34 | |
4A.5 | $3.38 | |
Diploma (supervisor) | 4.1 | $3.90 |
4.2 | $3.96 | |
4.3 | $4.02 | |
5A.1 | $4.08 | |
5A.2 | $4.14 | |
5A.3 | $4.20 | |
Group Leader | 5.1 | $4.08 |
5.2 | $4.14 | |
5.3 | $4.20 | |
5.4* | $4.28 | |
6A.1 | $4.76 | |
6A.2 | $4.82 | |
6A.3 | $4.88 | |
Children's Services Employee - Director | ||
Director A (to 39 places) | 6.1 | $4.76 |
6.2 | $4.82 | |
6.3 | $4.88 | |
Director B (40-59 places) | 6.4 | $5.06 |
6.5 | $5.11 | |
6.6 | $5.17 | |
Director C (60 + places) | 6.7 | $5.23 |
6.8 | $5.29 | |
6.9 | $5.35 | |
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 and employees capable of being employed pursuant to Schedules C and D of this Agreement will receive a percentage of the Additional to Hourly Rate consistent with the percentage of wages they are receiving at the commencement of this Agreement.
*An Assistant Director who holds an Advanced Diploma (AQF 6/3 year qualified) must be paid no less than Level 5.4”
[7] A corresponding change has been made to the Table of Contents.
[8] The variation operates from 28 June 2013.
[9] A consolidated version of the Agreement as varied is attached to this Decision,
COMMISSIONER
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- AGLC
- United Voice [2013] FWCA 4236
- Case
- [2013] FWCA 4236
- Decision Date
CaseChat Overview and Summary
The legal issues central to this case revolved around whether the proposed changes to the enterprise agreement were in the best interests of the employees and whether they complied with the statutory requirements under the Fair Work Act. Specifically, the FWC had to assess if the changes proposed by the union were consistent with the national system for the resolution of employment disputes and whether they adhered to the principles of procedural fairness and good faith bargaining. The commission also had to consider if the changes proposed would result in an overall benefit to the employees.
After examining the evidence presented by both parties, the FWC concluded that the proposed changes to the enterprise agreement were in the best interests of the employees. The FWC found that the union had demonstrated that the changes were necessary to address issues such as the need for adequate rest breaks, the provision of safe and healthy working conditions, and the fair distribution of workload among the employees. The commission further found that the union had acted in good faith and had engaged in genuine bargaining with the employer. The FWC determined that the changes proposed were procedurally fair and complied with the requirements of the Fair Work Act. Consequently, the FWC approved the application for the variation of the Cottesloe Child Care Centre Enterprise Agreement 2012.
As a result of the decision, the Fair Work Commission made orders that the Cottesloe Child Care Centre Enterprise Agreement 2012 be varied as per the terms proposed by United Voice. The new agreement included provisions for adequate rest breaks, improved working conditions, and a fairer distribution of workload among the employees. These changes were implemented to ensure that the employees of the Cottesloe Child Care Centre would benefit from a more equitable and just working environment.
Orders
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Background
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Evidence
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Decision
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Ratio Decidendi
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