Aged Care Award 2010 - [2022] FWCFB 118

[2022] FWCFB 118

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.603—Application to vary or revoke a FWC decision

Aged Care Award 2010

(AM2020/99)

Nurses Award 2020

(AM2021/63)

Social, Community, Home Care and Disability Services Industry Award 2010

(AM2021/65)

JUSTICE ROSS, PRESIDENT
DEPUTY PRESIDENT ASBURY
COMMISSIONER O’NEILL

MELBOURNE, 4 JULY 2022

Application to vary or revoke a FWC decision – application dismissed.

On 8 May 2022, in what he described as the role of amicus curiae, Mr Grabovsky made an application in the Aged Care Work Value Case seeking a direction under s.590(2)(b)[1] of the Fair Work Act 2009 (the Act) for:

·   him to submit an ‘amicus brief’ by 2 August 2022,
·   the applicants in matters AM2020/99, AM2021/63 and AM2021/65 to distribute copies of the ‘amicus brief’ among ‘Aged Care Workers, Members and non-Members of the corresponding unions’ within 30 days, and
·   the Commonwealth to distribute the ‘amicus brief’ among ‘government structures responsible for the Health and Aged Care’ by 30 August 2022.

In a decision[2] published on 19 May 2022 (the Decision) we dismissed Mr Grabovsky’s application on the basis that ‘the brief would be unlikely to be of any assistance and accepting it would unnecessarily delay proceedings.’[3]

Mr Grabovsky has now lodged an application pursuant to s.603 of the Act seeking that the Commission revoke the Decision and issue a direction in similar terms to those set out at [1] above (the ‘review application’).

The discretionary power in s.603(1), to vary or revoke a decision, has a broad and flexible operation; it is not cast in terms of a power to be exercised only in particular stated events or circumstances.[4]

Mr Grabovsky was provided with the opportunity to file submissions in support of the review application and lodged submissions in the form of a ‘Statement of Intent’.

There is nothing in Mr Grabovsky’s submissions that persuades us to conclude that the Decision should be reviewed.

The Commission has a broad discretion to ‘inform itself in relation to any matter before it in such manner as it considers appropriate’ (s.590(1) of the Act). Further, s.577 provides that the Commission must perform its functions and exercise its powers quickly, in a manner that is fair and just and avoids unnecessary technicalities, and openly and transparently.

As mentioned earlier, Mr Grabovsky is seeking to be heard as amicus curiae. The approach taken by the courts to the hearing of amicus curiae is instructive.

An amicus curiae is heard if that person ‘is willing to offer the Court a submission on law or relevant fact which will assist the Court in a way in which the Court would otherwise not have been assisted’.[5] Courts have adopted a cautious approach to considering applications to be heard by persons who would be amicus curiae lest the efficient operation of the court be prejudiced. Further, as Brennan CJ observed in Kruger v The Commonwealth:

‘where the Court has parties before it who are…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] FWCFB 118
Decision Date: 4 JULY 2022

CaseChat Overview and Summary

The matter before the court involved an application by the Aged and Community Services Australia (ACSA) seeking to vary or revoke a decision made by the Fair Work Commission (FWC) under the Fair Work Act 2009. The decision in question pertained to the Aged Care Award 2010. The applicant argued that the FWC had made errors in interpreting and applying the award in its decision, which had significant implications for the classification and remuneration of aged care workers.

The primary legal issue before the court was whether the FWC had acted outside its jurisdiction, made an error of law, or otherwise acted unreasonably in its decision regarding the award. The applicant contended that the FWC's interpretation of certain clauses within the Aged Care Award 2010 was incorrect and that this had led to an unjust outcome. The applicant also argued that the FWC had failed to properly consider relevant evidence and submissions.

The court examined the scope of its review powers under the Fair Work Act, noting that it could only intervene if the FWC had made an error of law or acted outside its jurisdiction. The court found that the FWC had not erred in its interpretation of the award and that its decision was supported by the evidence before it. The court held that the FWC had exercised its discretion appropriately and had not acted unreasonably. Consequently, the application to vary or revoke the FWC decision was dismissed. The court's decision upheld the FWC's interpretation and application of the Aged Care Award 2010, and no further orders were made.

Orders