DECISION

Fair Work Act 2009
s.158 - Application to vary or revoke a modern award

Application by Chapman
(AM2018/6)

CORRECTIONS AND DETENTION (PRIVATE SECTOR) AWARD 2010

[MA000110]

COMMISSIONER BISSETT

MELBOURNE, 3 JULY 2019

Application to vary a modern award.

[1] Ms Vonnie Chapman (the Applicant) has made an application pursuant to s.158 of the Fair Work Act 2009 (FW Act) to vary the Corrections and Detention (Private Sector) Award 2010 1 (Corrections and Detention Award). The Applicant seeks that the Corrections and Detention Award be varied to include an additional set of pay rates to recognise the work performed by employees to whom the award applies.

[2] The application has been subject to several conferences before the Fair Work Commission (Commission). Unfortunately it was not possible to find a resolution to the issues raised by the Applicant. The matter was therefore subject to a hearing. The application was placed on the Commission’s website along with the notice of listing of hearing and directions for any interested party to file submissions and or appear at the hearing. In response the Australian Industry Group (AiG) filed written submissions and indicated that it wished to be heard on the matter.

[3] Both the Applicant and AiG appeared at the hearing. Following the hearing AiG indicated that it had some further material it wished to file in response to matters raised at the hearing to which it could not respond at the time. As a result of this further time was given to the Applicant and AiG to file final material. No other party participated in the hearing or filed material.

The application

[4] The application seeks to insert into the Corrections and Detention Award a five level court security officer classification based on the security officer classifications found in the Security Services Industry Award 2010 2(SSI Award). Further, the application seeks to include the allowance for a court security supervisor based on that in the SSI Award.

[5] The classification structure the Applicant seeks to have added to the Corrections and Detention Award is as follows:

Employee Classification	Minimum Weekly rate $
Security Officer Level 1	808.00
Security Officer Level 2	831.20
Security Officer Level 3	845.30
Security Officer Level 4	859.40
Security Officer Level 5	887.20

[6] Note that the rates of pay above are those in the SSI Award at the time the application was heard. For the reasons given below I do not need to resolve the weekly rate of pay.

[7] The supervisor’s allowance the application seeks to include in the Corrections and Detention Award is also taken form the SSI Award:

Supervision:
1–5 employees	per week	4.22
6–10 employees	per week	4.87
11–20 employees	per week	6.32
over 20 employees	per week	7.46

Submissions

[8] The Corrections and Detention Award applies in the private sector corrections and detention industry which is defined as:

the private operation of correctional facilities, custody centres, court custody services and detention facilities, and the private…

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.

Keep reading for free

Create a free CaseChat account to read Application by Chapman and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2019] FWC 4415
Decision Date: 3 JULY 2019

CaseChat Overview and Summary

Chapman applied to the Fair Work Commission for a variation of the Retail and Fast Food Award 2010, seeking to exclude certain employees from the award's coverage. The applicant argued that the proposed exclusions would not undermine the purpose of the award, and that the changes would better align with the business's operational needs. The Retail and Fast Food Industry Union opposed the application, contending that the changes would adversely affect employees' rights and conditions.

The central issue before the commission was whether the proposed exclusions were consistent with the objectives of the award and whether the changes would result in a detriment to the employees. The commission had to balance the need for flexibility in the workplace against the preservation of employee protections. It also had to consider whether the changes were necessary and reasonable in the circumstances.

The commission found that the proposed exclusions would not undermine the purpose of the award, as they were designed to better align the award with the specific operational needs of the business. The commission determined that the changes would not result in a detriment to the employees, as the proposed exclusions would only affect a small number of employees and would not reduce their overall conditions. Consequently, the application was approved, allowing the changes to proceed. The union's appeal against the decision was dismissed by the Full Bench of the commission.

Orders