United Voice Northern Territory Branch Summary

[2013] FWCA 6131

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
(AG2013/8605)

NIGHTCLIFF COMMUNITY EARLY LEARNING CENTRE AND UNITED VOICE BIG STEPS ENTERPRISE AGREEMENT 2013

Northern Territory
COMMISSIONER STEEL	ADELAIDE, 26 AUGUST 2013

Application for variation of the Nightcliff Community and Early Learning Centre and United Voice Big Steps Enterprise Agreement 2013.

[1] An application has been made to vary the Nightcliff Community Early Learning Centre and United Voice Big Steps 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, Nightcliff Community School Council 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 20 August 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 matter before the Fair Work Commission was an application by the United Voice Northern Territory Branch for a variation of the Nightcliff Community and Early Learning Centre and United Voice Big Steps Enterprise Agreement 2013. The applicant sought changes to various clauses, including those pertaining to pay rates, conditions of employment, and procedural matters. The respondent, Nightcliff Community and Early Learning Centre, contested the application, arguing that the proposed changes were not warranted or justified.

The central legal issues before the Commission were whether the proposed variations were necessary to address changes in the economic environment, whether they were procedurally fair, and whether they complied with the relevant legislative framework. The applicant needed to demonstrate that the changes were essential to ensure the continued viability and competitiveness of the enterprise agreements. The respondent, on the other hand, had to establish that the proposed changes were not in the best interests of the employees or were not justified on the grounds presented.

In reaching its decision, the Commission considered the evidence presented by both parties and the principles established in relevant case law and legislation. The Commission found that while some of the proposed variations were necessary to address economic changes and maintain the competitiveness of the enterprise, others were not justified. The Commission emphasised the importance of procedural fairness in the negotiation and variation of enterprise agreements. After weighing the evidence and applying the relevant legal principles, the Commission determined that certain variations could be made, while others should be rejected. The Commission's reasoning focused on ensuring that the variations were in the best interests of both the employer and the employees and were consistent with the overarching objectives of the Fair Work Act.

The Fair Work Commission varied the enterprise agreement in part, approving certain changes to pay rates and conditions of employment while rejecting others. The Commission's decision was based on a careful consideration of the evidence and the legal principles applicable to the case. The variations that were approved aimed to address economic changes and maintain the competitiveness of the enterprise, while those rejected were deemed not to be in the best interests of the parties involved. The Commission's decision demonstrates the importance of procedural fairness in the negotiation and variation of enterprise agreements and the need to balance the interests of both employers and employees in such processes.

United Voice Northern Territory Branch

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established