United Voice

[2013] FWCA 9361

[2013] FWCA 9361

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.217—Enterprise agreement

United Voice
(AG2013/8568)

SOUTH LAKE CHILD CARE CENTRE INCORPORATED PROFESSIONAL EARLY CHILDHOOD EDUCATION CARE STANDARDS & UNITED VOICE ENTERPRISE AGREEMENT 2013

Children’s services
DEPUTY PRESIDENT MCCARTHY	PERTH, 29 NOVEMBER 2013

Application for variation of the South Lake Child Care Centre Incorporated Professional Early Childhood Education Care Standards & United Voice Enterprise Agreement 2013.

[1] United Voice made an application pursuant to s.217 of the Fair Work Act 2009 (FW Act) to vary the South Lake Child Care Centre Incorporated Professional Early Childhood Education Care Standards & United Voice Enterprise Agreement 2013 (the Agreement) to remove an ambiguity or uncertainty in the agreement.

[2] The Agreement was approved on 14 June 2013.

[3] The Agreement uses the Children’s Services Award 2010 as a template and the wages schedule and classifications structures are modelled on that award.

[4] The Agreement consists of six main parts and eight schedules. Part four of the Agreement deals with minimum wages and related matters and consist of nine clauses including Classifications and Minimum Wages. Various other matters are dealt with in the remaining clauses.

[5] The eight schedules deal with subsidiary or replacement schedules for particular types of wage arrangements, such as a National Training Wage, Supported Wage System and the Early Years Quality Fund Wages Schedule.

[6] The issue arises because apparently the Department of Education Employment and Workplace Relations (DEEWR) have informed the child-care centre concerned here that there is no classification Assistant Director with Advanced Diploma in Schedule F. Apparently DEEWR have advised that a variation is required to include Levels 5.4 Assistant Director in Schedule F presumably before the requirements for some type of funding or subsidy will be recognised.

[7] The parties to the Agreement therefore lodged an application asserting that there is an ambiguity and/or uncertainty that arises.

[8] It is necessary before a variation can be made that I be satisfied that an ambiguity or uncertainty does exist.

[9] The Agreement provided in Clause 13 that “[t]he definitions of the classification levels in clause 14-Minimum wages are contained in Schedule B-Classification Structure.”

[10] Schedule B Classification Structure states that:

“All employees will be classified by the employer into one of the levels contained in this Schedule in accordance with the employee’s skills, responsibilities, qualifications, experience in the industry and duties.

Progression within a level is subject to the provisions of Clause 14.2.

Employees moving from one classification level to another will commence on the 1st year of service rate of the higher level.”

[11] There are two broad classifications one being classification B1 Children’s Services Employees and the other being classification B2 Support Worker. Classification B1 has six levels from Level I to Level 6. There are also some mid-level classifications being levels 3A, 4A, 5A and 6A.

[12] The duties involved in those classifications are detailed, and how progression from one level to another is achieved.

[13] Level 5 provides as follows:

“This is an employee who has completed an AQF Level V Diploma in Children’s Services or equivalent and is appointed as:

● an Assistant Director of a service;
● a Children’s Services Co-ordinator;
● a Family Day Care Co-ordinator;
● a Family Day Care Trainee Supervisor; or
● a School Age Care Co-ordinator.

An Assistant Director will also take on the same duties and perform the same tasks as a CSE Level 4.” (original emphasis)

[14] Clause 14.1 Minimum Wages then provides the minimum weekly and hourly rates for each level of employee and incremental rates based on length of service. It provides for Level 5.4*** with a minimum weekly rate of $898.10 and a minimum hourly rate of $23.63. At the end of clause 14.1 it notes “***An Assistant Director who holds an Advanced Diploma (AQF 6/3 year qualified) must be paid no less than Level 5.4”.

[15] Schedule F provides for an Early Years Quality Fund Wages Schedule. It provides an additional hourly rate for employees once an employer is approved to call on the Early Years Quality Fund.

[16] Under a title “Group Leader” a Level/Step 5.4* provides an additional hourly rate of $4.28. At the end of the table prescribing the additional hourly rate for each level it states as follows “*An Assistant Director who holds an Advanced Diploma (AQF 6/3year qualified) must be paid no less than Level 5.4”.

[17] The obligations of both Clause 14 and Schedule F with respect to the rates payable for “An Assistant Director who holds an Advanced Diploma (AQF 6/3year qualified)” are quite clear by either the Clause or the Schedule. An employee who meets that requirement is obliged to be paid at Level 5.4. I do not think it could be clearer.

[18] Therefore I find there is no anomaly or uncertainty in the Agreement. As a consequence the condition required to vary the Agreement is not satisfied (see s.217(1) of the FW Act).

[19] The application is dismissed.

DEPUTY PRESIDENT

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