Y-Care (South East Queensland) Inc. T/A YMCA Vocational School

[2021] FWCA 6711

[2021] FWCA 6711

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.217—Enterprise agreement

Y-Care (South East Queensland) Inc. T/A YMCA Vocational School
(AG2021/8342)

YMCA VOCATIONAL SCHOOLS QUEENSLAND ENTERPRISE AGREEMENT 2021

Educational services
DEPUTY PRESIDENT ASBURY	BRISBANE, 9 DECEMBER 2021

Application for variation of the YMCA Vocational Schools Queensland Enterprise Agreement 2021

[1] Y-Care (South East Queensland) Inc. T/A YMCA Vocational School has made an application under s.217(1) of the Fair Work Act 2009 (the Act) to vary the YMCA Vocational Schools Queensland Enterprise Agreement 2021 (the Agreement) to remove an ambiguity or uncertainty in the Agreement. The Agreement was approved by the Fair Work Commission (Commission) in a Decision 1 issued on 24 November 2021.

[2] The Independent Education Union of Australia (IEU) is a bargaining representative for the Agreement and is covered by the Agreement.

[3] In the process of seeking approval for the Agreement, employees identified clerical errors in the version of the Agreement that they had been requested to approve. These errors are the omission of a wage table for School Administrator Roles in Annexure E, what was described as “inversed” banding descriptions for classifications undertaking Wellbeing Group programs in Annexure D and omitted qualification requirements for certain classifications for Wellbeing Staff Members in Annexure D.

[4] Rather than cease the approval process, the Applicant proceeded with the ballot and the Agreement was approved by a valid majority of employees. Prior to employees approving the Agreement the Applicant acknowledged the errors and informed employees that the errors would be corrected by the provision of an undertaking to the Commission. When the Agreement was lodged with the Commission for approval, the Applicant sought to address the errors by providing an explanation to the Commission of the errors and offering undertakings to correct them.

[5] I communicated with the Applicant and stated my provisional view that the errors were technical, correction would not disadvantage employees and the errors did not impact on whether the Agreement was genuinely agreed. However, I also indicated that it would be preferable if the errors were corrected by the Applicant making an application under s. 217 of the Act for a variation to the Agreement to remove ambiguity or uncertainty, which could be dealt with at the same time as application for approval of the Agreement.

[6] I further indicated my view that the error could not be corrected by the Commission exercising the power in s. 602 of the Act on the basis of the Decision of a Full Bench of the Commission in Advantaged Health Care Pty Ltd v Health Services Union 2 and that the conclusions of the Full Bench in that case would would also extend to the use of s. 586 to correct an error in an Agreement. 

[7] The Applicant filed the application for variation of the Agreement. With respect to the first variation sought – the omitted wage table for School Administrator Roles in Annexure E of the Agreement, the Applicant submits the Agreement in the form distributed and voted up by staff includes classifications for this category of employees, but no wage table. Accordingly, the Applicant is seeking that the wage table be inserted to provide clarity to these employees as to what that 2.5% increase under clause 3.7 will represent over the life of the Agreement.

[8] With respect to the second variation – inadvertently “inverted” banding descriptions for Wellbeing Groups programs – the Applicant submits the effect of the error is that the wages for Groups Coordinator (the more senior role) are listed as “Band 1” and the wages for Groups Facilitator (the more junior role) are listed as “Band 2”. The Applicant is seeking to vary the Agreement by replacing the table to correct this error to provide clarity to staff.

[9] With respect of the third variation, in relation to the classifications for youth wellbeing employees, the Applicant submits that some of the bands in the classifications for youth wellbeing counsellor and case worker do not list “social work” as a potential essential qualification, even though staff currently working in such roles hold this qualification, Specifically, the Applicant submits Bands 1, Step 1 to Band 1, Step 6 do not list social work, while Band 2, Steps 1 and 2 do. The Applicant is seeking to vary the Agreement to replace the existing table with a table that lists “social work” and registration with the Australian Association of Social Workers as an essential qualification, on the basis that this will alleviate uncertainty in relation to these roles and coverage.

[10] An issue was identified with the second variation on the basis that what was sought appeared to also involve a variation to the rates of pay for Wellbeing Program Group Facilitators. A response to this issue was sought from the Applicant and an amended application seeking a different variation was filed. This also did not clarify the issues raised and a hearing was conducted on 8 December 2021 for that purpose. The hearing was attended by the Independent Education Union as a bargaining representative and a number of other individual bargaining representatives. At the hearing, the Applicant clarified that the variation was sought to correct the pay rates in the Agreement for Wellbeing Program Groups Facilitator which were incorrect due to an error in the calculation of hourly and annual rates.

[11] The Applicant provided a response in relation to the issues that had been raised with respect to the amended application and upon further consideration, withdrew the amended application and sought to pursue the application and the proposed variation as originally filed. Permission was granted for the Applicant to take this course with the concurrence of the bargaining representatives.

Relevant Legislation

[12] The application has been made under s.217 of the Act, which provides as follows:

“217 Variation of an enterprise agreement to remove an ambiguity or uncertainty

(1) The FWC may vary an enterprise agreement to remove an ambiguity or uncertainty on application by any of the following:

(a) one or more of the employers covered by the agreement;

(b) an employee covered by the agreement;

(c) an employee organisation covered by the agreement.

(2) If the FWC varies the enterprise agreement, the variation operates from the day specified in the decision to vary the agreement.”

Consideration

[13] An ambiguity or uncertainty must be identified as a jurisdictional fact before the Commission’s power to vary an Agreement under s.217 of the Act is enlivened. 3 There is no clear test for determining when an ambiguity exists4 and the Commission must make an objective assessment about whether, on the proper construction of the Agreement, it is susceptible to more than one meaning.5 Even if an ambiguity or uncertainty is found it remains a discretionary matter whether the Commission will approve a variation to the Agreement having regard to the mutual intention of the parties at the time of making the Agreement.6

[14] Based on the material before me I am satisfied that there is ambiguity or uncertainty in the identified provisions of the Agreement. In relation to the first variation, I accept uncertainty arises where the Agreement does not contain rates of pay corresponding to the classifications for School Administrator Roles. In relation to the second variation, I accept that an ambiguity arises where the Agreement currently provides for incorrect (and higher wages) to be paid for the more junior classification and vice versa. Further, I accept the explanation from the Applicant in relation to the variation sought also extending to the rates of pay for Wellbeing Groups Program Facilitator, on the basis that the rates in the Agreement as currently expressed would create an ambiguity in that the error in the calculation of those rates means that the hourly rates do not correlate with the annual rate. I note the Independent Education Union and Employee Bargaining Representatives who attended the hearing did not object to the variation being made.

[15] In relation to the error subject of the third variation, I accept that an uncertainty arises where certain classifications for youth wellbeing counsellors and case workers do not require social work classifications in circumstances where current employees performing those roles hold those qualifications.

[16] I am satisfied that the variation sought reflects the proper construction of the Agreement and that employees understood this prior to voting to approve the Agreement. The views of the employee bargaining representatives and the IEU were sought in relation to this application, and no objections were received.

Conclusion

[17] I am satisfied that it is appropriate to vary the Agreement to resolve an ambiguity or uncertainty. I am also satisfied that the variation proposed is appropriate, will not involve rewriting the Agreement, and reflects the proper construction of the Agreement. It is appropriate that the discretion to vary the Agreement to resolve the ambiguity or uncertainty is exercised.

[18] I Order that the Agreement be varied as follows:

(i) By inserting the following table and explanatory table at Annexure E of the Agreement:

Sept 2021		Sept 2022		Sept 2023
Role	Band	Steps	per annum	Hourly Rate	per annum	Hourly Rate	per annum	Hourly Rate
School Administrator	1	1	$58,037.90	$29.37	$59,488.85	$30.10	$60,976.07	$30.86
2	$60,020.39	$30.37	$61,520.90	$31.13	$63,058.92	$31.91
3	$62,288.29	$31.52	$63,845.50	$32.31	$65,441.63	$33.12
4	$64,640.66	$32.71	$66,256.68	$33.53	$67,913.09	$34.37

•  School Administrators will work 38 hours per week, unless a grandfathered agreement is in place.

•  Progression through the steps is as per the role classification table.

•  All roles will work 52 weeks per year with 4 weeks annual leave, unless a grandfathered agreement is in place.

(ii) By deleting the exiting wages table in ‘Annexure D – Wages and Classifications for Wellbeing Staff Members’ titled “Wellbeing Group Programs” and inserting an amended table in the following terms:

Sept 2021		Sept 2022		Sept 2023
Role	Band	Steps	per annum	Hourly Rate	per annum	Hourly Rate	per annum	Hourly Rate
Wellbeing Program Groups Facilitator	1	1	$58,037.90	$29.37	$59,488.85	$30.10	$60,976.07	$30.86
	2	$60,020.39	$30.37	$61,520.90	$31.13	$63,058.92	$31.91
3	$62,288.29	$31.52	$63,845.50	$32.31	$65,441.63	$33.12
4	$64,640.66	$32.71	$66,256.68	$33.53	$67,913.09	$34.37
Wellbeing Program Groups Coordinator	2	1	$68,866.74	$34.85	$70,588.41	$35.72	$72,353.12	$36.61
2	$71,300.09	$36.08	$73,082.59	$36.98	$74,909.66	$37.91
3	$73,786.74	$37.34	$75,631.41	$38.27	$77,522.19	$39.23
4	$76,246.74	$38.59	$78, 152.91	$39.55	$80,106.73	$40.54

(iii) By deleting the classifications table in ‘Annexure D – Wages and Classifications for Wellbeing Staff Members’ titled “Youth Wellbeing Counsellor and Case Worker Classifications” and inserting an amended table in the following terms:

Band	Progression	Qualifications	Responsibilities
Band 1 Step 1	Progression from one step to the next shall occur on 1 September provided: 1. At least 1824 hours have been worked on each step in the band; OR at least 1824 hours have been worked for another employer with same required qualifications in a similar context to a Special Assistance School 2. Satisfactory performance has been demonstrated via an appraisal.	Essential: Tertiary qualifications in counselling and/or psychology or social work and must be fully registered or able to be registered with the Australian Counselling Association and/or Psychotherapy and Counselling Federation of Australia; and or Australian Association of Social Workers. Desirable: Postgraduate tertiary qualifications in psychology, counselling or social work.	• Continue to hold professional qualifications and registration as per Position requirements, including professional development and supervision requirements • Deliver brief counselling intervention or case management to reduce barriers to education and address the impact of trauma including but not limited to mental health and learning disorders • Complete wellbeing intake and assessment for students commencing at the school • Support school leaders, students and staff with mental health, safeguarding children, self-regulation or other crises and critical incidents as required • Design and deliver wellbeing group programs in accordance with campus needs • Support the delivery and implementation of the thrive philosophy throughout the school. • Support education staff in their composition and review of ILPs • Liaise with parents and carers to support the interests of students • Foster and maintain community networks, in accordance with role requirements
Band 1 Step 2	Progression from one step to the next shall occur on 1 September provided: 1. At least 1824 hours have been worked on each step in the band; OR at least 1824 hours have been worked for another employer with same required qualifications in an education context. 2. Satisfactory performance has been demonstrated viaan appraisal. Note 1: An employee who possesses a five (5) year essential university qualification will progress from step 1 to step 3 upon a satisfactory performance appraisal.	Essential: Tertiary qualifications in counselling and/or psychology or social work and must be fully registered or able to be registered with the Australian Counselling Association and/or Psychotherapy and Counselling Federation of Australia; and or Australian Association of Social Workers. Desirable: Postgraduate tertiary qualifications in psychology, counselling or social work.	• As per step 1 AND • Support school staff with the knowledge and application of trauma-aware practices, in accordance with the Thrive philosophy • Contribute to the supervision of tertiary placement students • Contribute to the composition of IEPs in conjunction with teaching staff (required under the Education Adjustment Program)
Band 1 Step 3	Progression from one step to the next shall occur on 1 September provided: 1. At least 1824 hours have been worked on each step in the band; OR at least 1824 hours have been worked for another employer with same required qualifications in an education context. 2. Satisfactory performance has been demonstrated via an appraisal.	Essential: Tertiary qualifications in counselling and/or psychology or social work and must be fully registered or able to be registered with the Australian Counselling Association and/or Psychotherapy and Counselling Federation of Australia; and or Australian Association of Social Workers. Desirable: Postgraduate tertiary qualifications in psychology, counselling or social work.	• As per step 2 AND • Supervise tertiary students on practicum placements • Provide professional liaison with third party tertiary institutions • Support colleagues to develop and implement effective counselling and support frameworks in their work with students • Ensure professional practice reflects expertise in cultural diversity and support colleagues in same
Band 1 Step 4	Progression from one step to the next shall occur on 1 September provided: 1. At least 1824 hours have been worked on each step in the band; OR at least 1824 hours have been worked for another employer with same required qualifications in an education context. 2. Satisfactory performance has been demonstrated viaan appraisal.	Essential: Tertiary qualifications in counselling and/or psychology or social work and must be fully registered or able to be registered with the Australian Counselling Association and/or Psychotherapy and Counselling Federation of Australia; and or Australian Association of Social Workers. Desirable: Postgraduate tertiary qualifications in psychology, counselling or social work.	• As per step 3 AND • Support the professional development, including peer mentoring, of other wellbeing team members • Expand knowledge of the application of student support to overcome barriers to learning and engagement, through research and ongoing practice experience • Continuously evolve professional practices to ensure current best practice is reflected
Band 1 Step 5	Progression from one step to the next shall occur on 1 September provided: 1. At least 1824 hours have been worked on each step in the band; OR at least 1824 hours have been worked for another employer with required qualifications in a similar context to a Special Assistance School 2. Satisfactory performance has been demonstrated via an appraisal.	Essential: Tertiary qualifications in counselling and/or psychology or social work and must be fully registered or able to be registered with the Australian Counselling Association and/or Psychotherapy and Counselling Federation of Australia; and or Australian Association of Social Workers. Desirable: Postgraduate tertiary qualifications in psychology, counselling or social work.	• As per step 4 AND • Plan and implement workforce development in wellbeing relevant to issues arising at each particular school • Contribute to the evaluation of internal systems and processes, providing advice to the Senior Practitioner on ongoing improvements in accordance with best practice • Evaluate service risk assessment and provide assistance to Senior Practitioner in its implementation • Provide a leadership role in the revision of campus-based postvention planning systems and processes
Band 1 Step 6	1. Progression ceases at this step.	Essential: Tertiary qualifications in counselling and/or psychology or social work and must be fully registered or able to be registered with the Australian Counselling Association and/or Psychotherapy and Counselling Federation of Australia; and or Australian Association of Social Workers. Desirable: Postgraduate tertiary qualifications in psychology, counselling or social work.	• As per step 5 AND • Exhibit innovative approaches that integrate a range of frameworks through the provision of wellbeing support practices • Support colleagues to plan and implement high quality interventions and wellbeing group programs, in conjunction with WGP team
Band 2 Senior Practitioner Step 1	Progression from one step to the next shall occur on 1 September provided; 1. At least 1824 hours have been worked on each step in the band; OR at least 1824 hours have been worked for another employer with same required qualifications in a similar context to a Special Assistance School 2. Satisfactory performance has been demonstrated via an appraisal. 3. Commencement at step 2 based on minimum two years’ full-time experience in equivalent role.	Essential: Tertiary qualifications in counselling and/or psychology or social work and must be fully registered or able to be registered with the Australian Counselling Association and/or Psychotherapy and Counselling Federation of Australia and/or Australian Association of Social Workers. Desirable: Postgraduate tertiary qualifications in psychology, counselling or social work.	• Contribute to the design, delivery and implementation of the Thrive philosophy, and trauma-aware practices throughout the school • Supervise and direct counselling and case work staff to ensure the highest quality service delivery to students and staff in accordance with best practice and professional standards • Oversee the teams adherence to safeguarding children policies and procedures • Provide support and development as needed to ensure staff maintain adequate skills and best practice. • Support staff to implement personal practices in self-care and own wellbeing practices, overseeing additional support as required.
Step 2	Progression ceases at this step.	Essential: Tertiary qualifications in counselling and/or psychology or social work and must be fully registered or able to be registered with the Australian Counselling Association and/or Psychotherapy and Counselling Federation of Australia; and or Australian Association of Social Workers. Desirable: Postgraduate tertiary qualifications in psychology, counselling or social work.	• As per step 1 AND • Lead the ongoing professional development approach for staff in the wider team • Lead the incorporation of latest findings with regards to best practice in the areas of counselling and case management provision • Lead initiatives to support ongoing development of culturally sensitive and appropriate practices • Demonstrate exemplary practice and lead the implementation of ongoing practice framework improvement • Lead the monitoring and evaluation of wellbeing support practices and facilitate improvement strategies accordingly.

[19] The variation will operate from 9 December 2021, immediately upon the approval of the Agreement on that date. An Order 7 giving effect to this decision will be separately issued.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<AE513898  PR735838>

 1   [2021] FWCA 6708.

 2   [2021] FWCFB 453.

 3   Coinvest Ltd v Visionstream Pty Ltd (2004) 134 IR 43 at [44].

 4   Printing & Kindred Industries Union v Davies Bros Ltd (1986) 18 IR 444 at 449 per Gray J.

 5   Tenix Defence Systems Pty Ltd Certified Agreement 2001-2004 [2002] AIRC 531 at [49] per Ross VP, O’Callaghan SDP and Foggo C.

 6 Ibid at [32].

 7   PR735842.