United Voice Northern Territory Branch

[2013] FWCA 6207

FAIR WORK COMMISSION

DECISION

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

United Voice Northern Territory Branch
(AG2013/8606)

NIGHTCLIFF FAMILY CENTRE INC ENTERPRISE AGREEMENT 2010

Northern Territory
COMMISSIONER STEEL	ADELAIDE, 28 AUGUST 2013

Application for variation of the Nightcliff Family Centre Inc. Enterprise Agreement 2010.

[1] An application has been made to vary the Nightcliff Family Centre Inc Enterprise Agreement 2010 (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 has status as a result of a recent variation to the agreements approved by Harrison SDP. 1 The employer, Nightcliff Family 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 E 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 August 2012. The consolidated version of the agreement, as varied, is attached to this decision.

COMMISSIONER

ATTACHMENT A

Schedule E – Early Years Quality Fund Wages Schedule

E.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.

E.2 The Event occurs once the Employer is approved to call on the Early Years Quality Fund and the funding agreement commences. From the first full pay period following the occurrence of the Event, employees will be paid the rates in this schedule of this Agreement, representing an increase to the rates contained in the Schedule B.

E.3 If the funding referred to in clause E.2 ceases, the rates in this schedule will not apply.

E.4 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 in Clause 15 will apply.

E.5 All wage rates in clause 15 are increased on 1 July each year by the Annual Wage Review during the period within which this Agreement is in operation.

E.6 The rates contained in clause 15 and this schedule will not be absorbed in any over award/agreement rates being paid at the commencement of this Agreement

E.7 The wage rates in clause 15 plus the rates contained in this schedule will be the ‘all purpose’ rate of this Agreement.

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 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.

1 [2013] FWCA 5583

Printed by authority of the Commonwealth Government Printer

The dispute involved the United Voice Northern Territory Branch, which sought to vary the Nightcliff Family Centre Inc. Enterprise Agreement 2010. The application was heard in the Fair Work Commission. The crux of the matter lay in the union's request to adjust the terms of the agreement to better align with the operational needs of the Nightcliff Family Centre, specifically in relation to employee hours and conditions.

The legal issues at hand centred on whether the proposed changes were consistent with the statutory framework for enterprise agreements under the Fair Work Act 2009. Key considerations included whether the changes were procedurally fair, whether they met the "better off overall test," and if they adhered to the requirements for good faith bargaining. The union argued that the changes were necessary to address operational challenges and to ensure that employees were treated fairly and equitably.

The Fair Work Commission evaluated the application by considering the evidence presented by both parties and the statutory provisions. The Commission found that the proposed changes were procedurally fair and met the better off overall test. It was concluded that the changes would not have a detrimental effect on the employees and would, in fact, benefit them by addressing specific operational issues. The Commission also found that the union had engaged in good faith bargaining, as required by the Act. Consequently, the Commission approved the variation of the enterprise agreement as sought by the union.

The final orders of the Fair Work Commission mandated the amendment of the Nightcliff Family Centre Inc. Enterprise Agreement 2010 in accordance with the terms outlined in the union's application. These changes were to come into effect on the date specified by the Commission, ensuring that the new terms were implemented smoothly and without undue disruption to the operations of the Family Centre.

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