Fury Green Pty Ltd v Judith Kwiatek

[2022] FWC 3267

[2022] FWC 3267

FAIR WORK COMMISSION

RECOMMENDATION

Fair Work Act 2009

s.739—Dispute resolution

Fury Green Pty Ltd
v

Judith Kwiatek

(C2022/5314)

DEPUTY PRESIDENT BOYCE SYDNEY, 13 DECEMBER 2022

Alleged dispute about any matters arising under a modern award and/or the NES

1. On 28 July 2022, Fury Green Pty Ltd (Applicant), filed a Dispute Application with the Fair Work Commission (Commission) pursuant to s.739 of the Fair Work Act 2009 (Act).

1. The Respondent to the Dispute Application is Ms Judith Kwiatek.

1. The Dispute Application was allocated to my Chambers on 16 November 2022.

1. The following facts are agreed between the parties:

a)   In November 2018, the Applicant began consultation for the implementation of a new 38-hour week roster for Carers (New Roster). At this time, all staff were consulted and were encouraged to seek independent advice.

b)   For operational reasons, the implementation of the New Roster was put on hold in April 2019.

c)   The Respondent’s consultation process with its Carers was consistent with its obligations under the Social, Community, Home Care and Disability Services Industry Award 2010 (Award). Each Carer was contacted directly and invited to provide written feedback regarding the New Roster.  No feedback was received.

d)   The Respondent satisfied itself that its New Roster (and final outcomes as part of that New Roster proposal) were in line with all legislative and Award requirements.

1. The Dispute Application states that the dispute referred to the Commission is as follows:

a)   the Respondent has sought to implement a New Roster requiring Carers to work a maximum of 38 ordinary hours per week, which the Respondent considers is compliant with Clause 25 of the Award; and

b)   Ms Kwiatek has challenged the implementation of the New Roster, and to date has refused to comply with the terms of the New Roster and its implementation.

1. Having heard from the parties during a recorded conciliation on 12 December 2022, it is apparent to me that:

a)   the New Roster complies with the Award;

b)   the Applicant has fulfilled its consultation obligations under the Award in respect of the New Roster with its relevant affected employees (Carers);

c)   the Respondent is legally required by the Act to ensure that its rostering arrangements comply with the Award; and

d)   the Respondent is not only entitled to implement the New Roster, but required as a matter of law to implement the New Roster.

1. The parties have requested that I make a recommendation to resolve the Dispute Application.

1. In the circumstances, I recommend that the Applicant and the Respondent engage in further expedient discussions to implement a roster (such as the New Roster) that complies with the Award.

1. In view of my recommendation, the Dispute Application is otherwise dismissed, and an Order to that effect will be issued accordingly.

DEPUTY PRESIDENT

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