Health Grouping - [2018] FWCFB 5557

[2018] FWCFB 5557

FAIR WORK COMMISSION

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	SYDNEY, 4 SEPTEMBER 2018

State reference public sector transitional award modernisation – Health Grouping State reference public sector modern award to replace predecessor awards – applications to terminate State reference public sector transitional awards – Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 – Schedule 6A Items 4, 5, 6, 7, 8 and 9 – Fair Work Act 2009 ss.134 and 284.

Introduction

This matter arises from the operation of Schedule 6A to the Fair Work (Transitional Provisions and Consequential Provisions) Act 2009 (Schedule 6A) in relation to awards that fall within the definition of ‘State reference public sector transitional awards’ under the Act.

The Victorian Hospitals’ Industrial Association (VHIA) has made applications under Item 5 of Schedule 6A, to terminate the following State reference public sector transitional awards (referred to collectively as the Victorian Public Sector Health Awards):

· AM2013/33 – Medical Scientists, Pharmacists and Psychologists (Public Sector - Victoria) Award 2003 [Transitional] [AT830467];

· AM2013/34 – Health and Allied Services - Public Sector - Victoria Consolidated Award 1998 [Transitional] [AT783945];

· AM2013/36 – Hospital Specialists and Medical Administrators Award 2002 CRV [AT816036] (Hospital Specialists and Medical Administrators Award); and

· AM2013/37 – Health Professional Services - Public Sector - Victoria Award 2003 [Transitional] [AT827096].

The Health Services Union of Australia (HSU) has made an application (AM2013/43), under Item 4 of Schedule 6A, to make a State reference public sector modern award known as the Health Professionals, Medical Scientists and Support Services (Victoria) State Reference Public Sector Award 2018 (proposed Health Award). The proposed Health Award would replace the following State reference public sector transitional awards:

· Medical Scientists, Pharmacists and Psychologists (Public Sector - Victoria) Award 2003 [Transitional] [AT830467];

· Health and Allied Services - Public Sector - Victoria Consolidated Award 1998 [Transitional] [AT783945]; and

· Health Professional Services - Public Sector - Victoria Award 2003 [Transitional] [AT827096].

The legislative context

VHIA’s applications to terminate the Victorian Public Sector Health Awards are governed by Item 5 of Schedule 6A, which provides as follows:

“5 Terminating State reference public sector transitional awards on application

(1) An employer or organisation that is covered by a State reference public sector transitional award (the current award) may apply to the FWC or the Commission to terminate the current award.

Note: The Commission ceased to exist on 31 December 2009: see item 7 of Schedule 18.

(2) The application may be made only during the period starting on the WR Act repeal day and ending at the end of 31 December 2013.

(3) The FWC or the Commission must not terminate the current award unless the FWC…

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: [2018] FWCFB 5557
Decision Date: 4 September 2018

CaseChat Overview and Summary

The Victorian Hospitals’ Industrial Association (VHIA) applied to terminate several State reference public sector transitional awards, while the Health Services Union of Australia (HSU) applied to create a new State reference public sector modern award, the Health Professionals, Medical Scientists and Support Services (Victoria) State Reference Public Sector Award 2018. The VHIA and HSU had agreed on the content of the new award, but the VHIA wished to terminate the Hospital Specialists and Medical Administrators Award. The Full Bench of the Fair Work Commission considered the applications and determined that the new award would be made and the other awards would be terminated. The new award will replace the existing transitional awards upon its commencement, the date of which will be specified in a subsequent order. Matters AM2013/33, AM2013/34 and AM2013/37 will be discontinued upon the new award's commencement. Consideration of the application to terminate the Hospital Specialists and Medical Administrators Award will be deferred until the conclusion of the State Reference Public Sector Modernisation proceedings. The Full Bench will make the Health Award with one minor variation to avoid ambiguity in the definition of "standard rate."

The Fair Work Commission was required to determine whether the proposed Health Award was consistent with the modern awards objective and the minimum wages objective, and whether the Hospital Specialists and Medical Administrators Award should be terminated. The Commission considered the applications, the submissions of the parties, and the relevant legislation. The Commission found that the proposed Health Award was consistent with the modern awards objective and the minimum wages objective, and that the other awards should be terminated. The Full Bench decided to make the Health Award with one minor variation to the definition of "standard rate." The Full Bench deferred consideration of the application to terminate the Hospital Specialists and Medical Administrators Award until the conclusion of the State Reference Public Sector Modernisation proceedings.

The Health Professionals, Medical Scientists and Support Services (Victoria) State Reference Public Sector Award 2018 is made. The awards that it replaces will terminate on the operative date of the Health Award, which will be specified in the order. The respective parties have agreed that matters AM2013/33, AM2013/34 and AM2013/37 will be discontinued when the order making the Health Award comes into effect. Consideration of the application to terminate the Hospital Specialists and Medical Administrators Award will be deferred until the conclusion of the State Reference Public Sector Modernisation proceedings. The Full Bench will make the Health Award with one minor variation to avoid ambiguity in the definition of "standard rate." An order giving effect to the decision will be issued once the terms of the Health Award are finalised.

Orders