Aged Care Award 2010

[2023] FWCFB 5

FAIR WORK COMMISSION

STATEMENT

Fair Work Act 2009

s.158—Application to vary or revoke a modern award

Aged Care Award 2010

(AM2020/99 and AM2021/63)

Nurses Award 2020

(AM2021/63)

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

(AM2021/65)

DEPUTY PRESIDENT ASBURY
DEPUTY PRESIDENT O’NEILL
COMMISSIONER BISSETT

BRISBANE, 13 JANUARY 2023

Applications to vary modern awards – work value – Aged Care Award 2010 – Nurses Award 2020 – Social, Community, Home Care and Disability Services Industry Award 2010 – request for extension of time – responses to Background Document 10 – new directions issued.

In a Statement published on 17 November 2022, we expressed a provisional view as to the programming of Stage 2 and invited parties to provide comments at a mention held on 22 November 2022.[1] Following that mention the directions for Stage 2 were amended in terms of dates by which submissions and evidence were to be filed.[2] The directions were further amended on 6 December 2022[3] following correspondence from the ANMF.[4] These remain the current directions.

On 23 December 2022, we published Background Document 10 – Stage 3 outstanding issues. Background Document 10 sets out, amongst other things, a summary and comparison of the HSU’s and ANMF’s applications to change the classification structures in the Aged Care Award 2010 and Nurses Award 2020, principles underpinning classification structures and key issues arising in relation to the proposed changes to classification structures.

Background Document 10 poses a number of questions for the parties. Parties were directed to file their responses to the questions by no later than 5pm Thursday 9 February 2023.[5]

On 9 January 2023, the ANMF wrote to the Commission and applied to vary the directions to extend the date for parties to respond to the questions in Background Document 10 to 28 February 2023.[6] The HSU and the Commonwealth supported the ANMF’s application.[7] The Joint Employers did not oppose the application.[8]

We have decided to grant the extension in the terms sought. For completeness, we have consolidated the directions with respect to Stage 2 so that it includes the 6 December amendment and the amendment with respect to Background Document 10. The consolidated directions are published with this statement.

DEPUTY PRESIDENT

[1] Statement [2022] FWCFB 208.

[2] Statement [2022] FWCFB 214.

[3] Amended Directions dated 6 December 2022.

[4] Correspondence from the ANMF dated 5 December 2022.

[5] [2022] FWCFB 248.

[6] Correspondence from the ANMF dated 9 January 2023.

[7] Correspondence from the HSU dated 10 January 2023; correspondence from the Commonwealth dated 13 January 2023.

[8] Correspondence from the Joint Employers dated 12 January 2023.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Nursing and Midwifery Federation (ANMF) applied for an extension of time to respond to questions posed in Background Document 10, which was published by the Fair Work Commission (FWC) as part of its consideration of applications to vary modern awards. The ANMF's application was supported by the Health Services Union (HSU) and the Commonwealth, and not opposed by the Joint Employers. The FWC considered the application and decided to grant the extension in the terms sought by the ANMF. The decision was made in the context of ongoing proceedings to vary the Aged Care Award 2010, Nurses Award 2020 and Social, Community, Home Care and Disability Services Industry Award 2010. The FWC's provisional view on the programming of Stage 2 of the proceedings had been expressed in a Statement published on 17 November 2022, and further directions were issued on 6 December 2022 and 5 January 2023. The extension of time for responses to Background Document 10 was to allow parties to fully consider the issues raised in the document and to provide comprehensive submissions.

The primary legal issue before the FWC was whether to grant the ANMF's application for an extension of time to respond to questions posed in Background Document 10. The FWC considered the application in the context of its ongoing proceedings to vary modern awards, and the need to ensure that all parties had an opportunity to fully consider and respond to the issues raised in Background Document 10. The FWC also considered the support for the application by the HSU and the Commonwealth, and the lack of opposition from the Joint Employers. In granting the extension, the FWC noted that it was in the interests of justice to do so, and that it would facilitate a more comprehensive and considered response from the parties.

The FWC granted the ANMF's application for an extension of time to respond to questions posed in Background Document 10. The FWC noted that the extension was in the interests of justice and would facilitate a more comprehensive and considered response from the parties. The FWC also noted that the extension was supported by the HSU and the Commonwealth, and not opposed by the Joint Employers. The FWC consolidated the directions with respect to Stage 2 of the proceedings, including the 6 December amendment and the amendment with respect to Background Document 10, and published the consolidated directions with its Statement. The parties were directed to file their responses to the questions in Background Document 10 by no later than 5pm on Tuesday 28 February 2023.

The FWC granted the ANMF's application for an extension of time to respond to questions posed in Background Document 10, and directed that parties file their responses by no later than 5pm on Tuesday 28 February 2023. The FWC noted that the extension was in the interests of justice and would facilitate a more comprehensive and considered response from the parties. The FWC also noted that the extension was supported by the HSU and the Commonwealth, and not opposed by the Joint Employers. The decision was made in the context of ongoing proceedings to vary the Aged Care Award 2010, Nurses Award 2020 and Social, Community, Home Care and Disability Services Industry Award 2010.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established