Application by Mental Health Australia
[2023] FWCFB 135
•4 AUGUST 2023
| [2023] FWCFB 135 |
| FAIR WORK COMMISSION |
| STATEMENT |
Fair Work Act 2009
s.158—Application to vary or revoke a modern award
Application by Mental Health Australia
(AM2023/2)
Application by Plan International Australia
(AM2023/5)
| JUSTICE HATCHER, PRESIDENT | SYDNEY, 4 AUGUST 2023 |
Applications to vary the Social, Community, Home Care and Disability Services Industry Award 2010.
On 24 January 2023 Mental Health Australia applied to vary the Social, Community, Home Care and Disability Services Industry Award 2010 (SCHADS Award). In its application, Mental Health Australia sought to vary clause 34.2 of the SCHADS Award, which provides for payment for working on a public holiday, by adding an additional paragraph to the effect that another day can be substituted for a public holiday by agreement between the employer and the employee.
Following a directions hearing on 13 February 2023, Mental Health Australia’s application was listed for conference before the presiding member.
On 7 March 2023 Plan International Australia lodged an application seeking an identical change to clause 34 of the SCHADS Award. Given their identical nature, both applications were listed for directions before the presiding member on 21 March 2023. Directions were then issued which provided for the filing of an amended application by Mental Health Australia and evidence and submissions by the parties. Consistent with the statement issued by the presiding member on 14 March 2023,[1] both applications were referred to an expert panel for the Care and Community Sector, and were subsequently listed for hearing on 25 July 2023.
On 7 July 2023 the Australian Services Union, the Health Services Union and the United Workers’ Union (Unions) wrote to the Commission and advised that, following discussions held with the applicants and the Australian Industry Group, a consent position had been reached. This consent position involved the insertion of a new clause 34.3 into the SCHADS Award in the following terms:
34.3 Substitution of public holidays by agreement
(a)An employee may request to substitute another day for a day that would otherwise be a public holiday under the NES. The requested day will be substituted if the employer agrees to the employee’s request.
(b)An employee may request to substitute another part day for a day that would otherwise be a part day public holiday under the NES. The requested part day will be substituted if the employer agrees to the employee’s request.
On 13 July 2023 the applications were listed for mention before the presiding member, and the parties confirmed the consent position that had been reached.
It is our provisional view that the proposed variation to the SCHADS Award is necessary to meet the modern awards objective in s 134(1) of the Fair Work Act 2009 (Cth) and that the variation should be made pursuant to s 157(1)(a) of the Act. A draft determination giving effect to our provisional view is published together with this decision. Interested parties may file any submissions in response to our provisional view by 5:00 pm (AEST) on Friday, 25 August 2023. If no submissions are received in opposition to our provisional view, the SCHADS Award will be varied in accordance with the draft determination.
PRESIDENT
[1] President's statement: Pay equity and the Care and Community Sector - Expert panels, 14 March 2023.
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