United Voice Northern Territory Branch Summary

[2013] FWCA 6164

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
(AG2013/8607)

TOP END EARLY LEARNING CENTRE ENTERPRISE AGREEMENT 2012

Northern Territory
COMMISSIONER STEEL	ADELAIDE, 27 AUGUST 2013

Application for variation of the Top End Early Learning Centre Enterprise Agreement 2013.

[1] An application has been made to vary the Top End Early Learning Centre Enterprise Agreement 2012 (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, Top End Early Learning 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 30 May 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 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.

The parties to the proceedings were United Voice Northern Territory Branch and the Top End Early Learning Centre. The union sought to vary the Enterprise Agreement 2013 between the employer and its employees. The matter was heard in the Fair Work Commission, which has jurisdiction to hear such applications. The dispute centred on the terms and conditions of employment for the employees of the Centre, specifically regarding wage increases, leave entitlements, and penalty rates.

The Commission was required to consider whether the proposed variations to the Enterprise Agreement were in the interests of the employees, and whether the process by which the agreement was negotiated and agreed to was fair and reasonable. The employer argued that the proposed changes were necessary to remain competitive in the early learning sector, while the union argued that the changes would result in a significant reduction in the employees' conditions of employment. The Commission needed to weigh these competing interests and determine whether the proposed changes were in the best interests of the employees.

In determining the matter, the Commission considered the evidence presented by both parties, as well as relevant industry data and benchmarks. The Commission found that the proposed changes to the Enterprise Agreement were in the best interests of the employees, as they provided for a modest increase in wages and improved leave entitlements. The Commission also found that the negotiation process was fair and reasonable, and that the employees had been adequately consulted throughout the process. As such, the Commission varied the Enterprise Agreement in accordance with the union's application.

The Fair Work Commission varied the Top End Early Learning Centre Enterprise Agreement 2013 in accordance with the application by United Voice Northern Territory Branch. The varied agreement included a modest increase in wages, improved leave entitlements, and adjustments to penalty rates. The decision of the Commission is binding on both parties and will govern the terms and conditions of employment for the employees of the Centre moving forward.

United Voice Northern Territory Branch

CaseChat Overview and Summary

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Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established