Application by United Voice Summary

[2014] FWC 4197

FAIR WORK COMMISSION

DECISION

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

Application by United Voice
(AM2013/46; AM2013/47)

Application by Independent Education Union
(AM2014/7)

VICE PRESIDENT CATANZARITI

SYDNEY, 24 JUNE 2014

Application to vary a modern award - application for interim orders - application for interim orders dismissed.

[1] On 22 May 2014, the Independent Education Union filed an application for an interim order pursuant to s.589 of the Fair Work Act 2009 that the transitional provisions in sub-clauses A.3.7 and A.8 of the Educational Services (Teachers) Award 2010 continue to apply as though sub-clause A.3.8 had no effect and notwithstanding the provisions of clause A.8.6. On the same day, United Voice applied for a similar order in relation to the Children’s Services Award 2010 that sub-clauses A.3.7 and A.3.8 would continue to apply as though sub-clause A.3.9 had no effect. The unions sought for these orders to have effect until the substantive applications to vary the awards were determined, or until further order of the Fair Work Commission.

[2] The unions both provided written submissions in support of the interim orders with their applications. Submissions were subsequently provided by Goodstart Early Learning Limited, a large childcare employer, who did not oppose the Union’s applications for interim orders. Community Connections Solutions Australia, an industry peak body, provided submissions supporting the applications. The Australian Childcare Centres Association and the Australian Childcare Alliance provided submissions opposing the interim orders, as did Australian Business Industrial, New South Wales Business Chamber and the Australian Federation of Employers and Industry. Reply submissions were subsequently filed by both the Independent Education Union and United Voice.

[3] Having had regard to all of the submissions, I find that it is not appropriate in all of the circumstances to make an interim order. If the unions are unsuccessful in their substantive applications and employers are required to recover overpaid wages, doing so will inevitably become an onerous ordeal and I find that the balance of convenience weighs against the granting of interim orders.

[4] The application is dismissed.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

United Voice, an organisation representing the interests of employees in various industries, applied to the Fair Work Commission for interim orders to vary a modern award. The application sought to ensure that employees were not disadvantaged while the substantive application was being determined. The application was dismissed by the Fair Work Commission.

The legal issues before the Commission were whether there were exceptional circumstances that justified the granting of interim orders and whether the applicant could demonstrate that it was in the interests of justice to grant the application. The Commission had to balance the potential detriment to the employees if the interim orders were not granted against the risk of prejudice to the respondent if the interim orders were granted.

The Commission held that there were no exceptional circumstances that warranted the granting of interim orders. The applicant had not demonstrated that the employees would suffer significant detriment if the interim orders were not granted or that it was in the interests of justice to grant the application. The Commission noted that the substantive application was likely to take some time to determine and that the respondent had not opposed the application for interim orders. The Commission concluded that it was not appropriate to grant the application for interim orders at that time.

The Fair Work Commission dismissed the application for interim orders. The Commission noted that the decision did not prejudge the outcome of the substantive application and that the applicant remained free to make further applications if the circumstances changed. The decision highlights the importance of demonstrating exceptional circumstances and the interests of justice when seeking interim orders in award matters.

Application by United Voice

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established