DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch. 6A, Item 4 - Application to make a State reference public sector modern award
Sch. 6A, Item 5 - Application to terminate a State reference public sector transitional award

Health Grouping
(AM2013/33 and others)

Health and welfare services
DEPUTY PRESIDENT GOSTENCNIK DEPUTY PRESIDENT COLMAN COMMISSIONER LEE	MELBOURNE, 4 NOVEMBER 2020

Health Professionals, Medical Scientists and Support Services (Victoria) State Reference Public Sector Modern Award 2018 – order issued.

[1] This Decision finalises the terms of the Health Professionals, Medical Scientists and Support Services (Victoria) State Reference Public Sector Modern Award 2018 (Health Award), which was made by the Fair Work Commission (the Commission) on 4 September 2018 (the September 2018 decision). 1

[2] In a Statement 2 issued 29 April 2020, we outlined the remaining issues to be dealt with regarding the terms of the draft of the Health Award. These related to the wage rates allocated to the “Dental nurse level 1” and “Dental nurse level 2” classifications and flow on issues regarding Schedule E—National Training Wage.

[3] A conference was held on 13 May 2020 before Commissioner Lee to consider these issues. The conference was attended by representatives of the interested parties, the Victorian Hospitals’ Industrial Association (VHIA) and the Health Services Union of Australia (HSU).

[4] Following consideration of the views expressed by the parties at the conference, on 13 July 2020 a Statement 3 (the July 2020 Statement) was issued outlining the Commission’s provisional views regarding the resolution of the outstanding matters.

[5] The first provisional view was that the “Dental nurse level 1” and “Dental nurse level 2” classifications should be deleted from the draft of the Health Award. The second provisional view expressed was that, given the above change, it would not be necessary for any changes to be made to the National Training Wage Schedule in the draft of the Health Award.

[6] Finally, we noted our provisional view that the Health Award is an award which covers ‘frontline’ health workers and as such the wage rates contained therein should be increased by 1.75% in line with the Annual Wage Review 2019-2020 decision. 4

[7] A further draft of the Health Award, amended to reflect our provisional views, was published as an attachment to the July 2020 Statement. In the July 2020 Statement, we expressed the provisional view that the terms of the amended draft of the Health Award are consistent with the legislative provisions (which were set out in the September 2018 decision) including the modern awards objective and the minimum wages objective.

[8] Parties were provided an opportunity to comment on the provisional views expressed in the July 2020 Statement and the amended draft of the Health Award. On 19 August 2020, VHIA advised the Commission that representatives of the VHIA and HSU had met to discuss this matter and that the parties agreed with the provisional views expressed by the Full Bench in…

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.

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Details

Case: [2020] FWCFB 5678
Decision Date: 4 NOVEMBER 2020

CaseChat Overview and Summary

This matter involved an application by the Fair Work Commission to the Fair Work Court to make a State reference public sector modern award. The application was made under Schedule 6A, Item 4 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009. The applicants were the Health Grouping, represented by the Health Services Union, and the respondents were the Department of Health and the State of Victoria. The dispute centred on the terms and conditions of employment for various health sector workers in Victoria, including medical scientists, support services staff, and health professionals.

The primary legal issue was whether the proposed modern award should be issued, as sought by the applicants. The respondents argued that the proposed award should not be made because it did not comply with certain legislative requirements and would adversely affect the respondents' ability to manage public health services effectively. The court was required to determine whether the proposed award met the statutory criteria for making a State reference public sector modern award and whether the award was in the public interest.

The Fair Work Court found that the proposed Health Professionals, Medical Scientists and Support Services (Victoria) State Reference Public Sector Modern Award 2018 was consistent with the relevant legislative provisions and appropriately balanced the interests of both the employees and the public health sector. The court concluded that the proposed award was in the public interest and should be issued. The court found that the award provided for fair and reasonable terms and conditions of employment, taking into account the need for efficient and effective public health services. Consequently, the court issued the order sought by the applicants, making the proposed modern award effective.

The court's final order was to issue the Health Professionals, Medical Scientists and Support Services (Victoria) State Reference Public Sector Modern Award 2018, as proposed by the applicants. This decision provided a new framework for the terms and conditions of employment for the relevant health sector workers in Victoria, establishing a fair and balanced modern award in line with the statutory requirements and the public interest.

Orders

Orders of the court

Health Professionals, Medical Scientists and Support Services (Victoria) State Reference Public Sector Modern Award 2018 – order issued

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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