Amanda King v LWB Disability Services Central Limited t/a Life Without Barriers

[2019] FWC 2952

[2019] FWC 2952

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

s.768AX—Application to vary copied State instruments

Amanda King
v
LWB Disability Services Central Limited t/a Life Without Barriers
(C2018/6955; AG2019/81)

DEPUTY PRESIDENT SAUNDERS NEWCASTLE, 1 MAY 2019

Application to vary a copied State instrument and application for the Commission to deal with a dispute; applications dismissed pursuant to s 587 of the Fair Work Act 2009 (Cth).

Introduction and background

[1] Ms Amanda King is employed by LWB Disability Services Central Limited t/a Life Without Barriers (Life Without Barriers) as a Disability Support Worker. Prior to commencing employment with Life Without Barriers on 22 February 2018, Ms King was employed by the New South Wales Government in its Family and Community Services division (FACS). In that employment, Ms King was covered by the Crown Employees Ageing, Disability and Home Care – NSW Department of Family and Community Services (Community Living Award) 2015 (Community Living Award).

[2] Following the introduction of the National Disability Insurance Scheme by the Commonwealth, the New South Wales Government announced that it would cease providing disability services directly and would instead provide these services through non-government agencies. As part of those changes, functions and services previously provided by FACS were transferred to Life Without Barriers (Transfer). As a result, Ms King ceased employment with the New South Wales Government and commenced employment with Life Without Barriers.

[3] At the time of the Transfer, the Community Living Award was converted by the operation of Part 6-3A of the Act into a copied state award (Community Living Copied State Award). The Community Living Copied State Award continues to cover and apply to Ms King in her employment with Life Without Barriers.

[4] Ms King has filed two applications in the Fair Work Commission (Commission), both of which have been dealt with together because they are inextricably linked together:

(a) An application to vary the Community Living Copied State Award (AG2019/81) pursuant to s 768AX of the Act (Award Variation Application). In this application, Ms King seeks to vary the Community Living Copied State Award by “Add[ing] the right of a casual to request permanency after at least one year of being employed as a casual. This is currently in the Social Community Home Care and Disability Industry Services Award 2010 (SCHADS Award) at clause 10.5. This could be added to the Community Living Copied State Award at clause 7 which deals with the working conditions for casuals”; and

(b) An application for the Commission to deal with a dispute under s 739 of the Act (Casual Conversion Dispute Application). In this application, as amended, Ms King seeks “to be converted from a casual employee to a full-time/part-time permanent status”, in accordance with the new casual conversion clause which she hopes to have inserted into the Community Living Copied State Award in accordance with the Award Variation Application.

[5] Accordingly, by her two applications, Ms King is seeking to amend the industrial instrument which applies to her, by including in it a right for a regular casual employee to request that their employment be converted to full-time or part-time employment, and then to exercise that right.

[6] At the time Ms King filed her applications in the Commission she was a casual employee of Life Without Barriers. However, following a conciliation in the Commission, Ms King accepted an offer by Life Without Barriers to become a permanent part time employee (20 hours per week) of Life Without Barriers with effect from 15 April 2019.

Application for dismissal of Award Variation Application and Casual Conversion Dispute Application

Submissions

[7] Life Without Barriers has made an application for the dismissal of both the Award Variation Application and the Casual Conversion Dispute Application, pursuant to s 587 of the Act. In particular, Life Without Barriers contends that both applications should be dismissed on the basis that they are frivolous or vexatious, and have no reasonable prospects of success.

[8] Ms King contends that, notwithstanding her agreement to be employed by Life Without Barriers on a part-time basis (at 20 hours per week), she “should be allowed to apply to have her casual/additional hours to a level that is consistent with the pattern of hours previously worked” 1 by her. Ms King also contends that her ability to obtain additional hours (beyond 20 per week) as a part time employee will be limited if the Community Living Copied State Award is not varied to include a casual conversion clause because “new casuals, which continue to be recruited, would be allowed to take working hours away from current part time staff who are under the Community Living Award”.2 Ms King submits that under the current arrangement, part-time staff have priority in gaining additional hours before casual staff are approached to fill in the roster, but this does not always work out and additional shifts are provided to casual staff. As a result, Ms King submits there is no guarantee that additional hours will be provided to part-time staff.

Consideration

[9] As a result of her agreement to accept permanent part-time employment with Life Without Barriers, Ms King ceased to be a casual employee of Life Without Barriers. Accordingly, even if the Community Living Copied State Award were varied to include a casual conversion clause of the type contained in clause 10.5 of the SCHADS Award, as contended for by Ms King, she would not be able to exercise any rights under such a provision because she is no longer a casual employee. It follows, in my view, that Ms King’s applications, considered together, are not reasonably arguable and have no reasonable prospects of success. I have reached this conclusion with “extreme caution”, as required by the relevant authorities. 3

[10] Ms King’s real complaint now is that, notwithstanding her agreement to be employed by Life Without Barriers on a part-time basis (at 20 hours per week), she should have been converted from a casual employee to a full-time employee or a part-time employee with more hours than 20 per week. That complaint is not within the scope of either the Award Variation Application or the Casual Conversion Dispute Application.

[11] Although the Award Variation Application may, if considered in isolation and separately from the Casual Conversion Dispute Application, have reasonable prospects of success, it would not be appropriate to separate the two applications in this way given the history of the matter and the clear connection between the two applications. Ms King initially filed the Casual Conversion Dispute Application, seeking to exercise a right under clause 10.5 of the SCHADS Award to be converted from casual to permanent employment. It was only after Ms King was made aware that she was covered by the Community Living Copied State Award, rather than the SCHADS Award, that she filed the Award Variation Application, seeking to have a casual conversion clause included in the Community Living Copied State Award. Ms King also filed an amended Casual Conversion Dispute Application, seeking to be converted from casual status to full time/part time permanent status in accordance with the casual conversion clause she hoped to have inserted into the Community Living Copied State Award. It is clear that Ms King made the Award Variation Application and contended for the insertion of a casual conversion clause into the Community Living Copied State Award for the purpose of seeking the form of relief identified the Casual Conversion Dispute Application. Having regard to all the circumstances, the two applications are part of the one matter and ought not to be considered separately.

[12] As to Ms King’s concern about other casual employees engaged by Life Without Barriers “taking working hours away from current part time staff”, there is no dispute that Life Without Barriers has recently converted a number of casual employees, including Ms King, from casual to permanent part-time employment, even without there being a casual conversion clause in the Community Living Copied State Award. Life Without Barriers has a practice of offering permanent employment to casual employees, on a merit selection basis, where operational considerations such as certainty of ongoing funding permit such decisions to be made. Having regard to those circumstances, it is not apparent how the inclusion of a casual conversion clause into the Community Living Copied State Award could impact Ms King’s prospects of being offered additional hours of work as a permanent part-time employee. In any event, Ms King’s desire to work additional hours as a part-time employee is a matter she can pursue directly with Life Without Barriers and, if it cannot be resolved internally, may give rise to other legal proceedings between Ms King and Life Without Barriers.

Conclusion

[13] For the reasons given, the Award Variation Application and the Casual Conversion Dispute Application are dismissed pursuant to s 587 of the Act.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR707832>

 1   Ms King’s written submissions filed in opposition to the application to dismiss both the Award Variation Application and the Casual Conversion Dispute Application at p.1

 2   Ibid at p.3

 3   See, for example, Resta v Myer Pty Ltd[2013] FWC 7080 at [44] and the authorities referred to therein