Health Services Union - [2013] FWCFB 5551

[2013] FWCFB 5551

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604—Appeal of decision

Health Services Union
(C2013/4216)

Health and welfare services
VICE PRESIDENT HATCHER SENIOR DEPUTY PRESIDENT HAMBERGER COMMISSIONER MCKENNA	SYDNEY, 21 AUGUST 2013

Appeal against decision [2013] FWC 2182 of Vice President Watson at Sydney on 15 April 2013 in matter number AM2012/133—Modern awards review 2012—Health Professionals and Support Services Award 2010.

Introduction

[1] Under item 6 of Schedule 5 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Transitional Act) the Fair Work Commission is required to conduct a review of all modern awards as soon as practicable after 1 January 2012. Item 6 provides:

“6 Review of all modern awards (other than modern enterprise awards and State reference public sector modern awards) after first 2 years

(1) As soon as practicable after the second anniversary of the FW (safety net provisions) commencement day, the FWC must conduct a review of all modern awards, other than modern enterprise awards and State reference public sector modern awards.

(2) In the review, the FWC must consider whether the modern awards:

(a) achieve the modern awards objective; and

(b) are operating effectively, without anomalies or technical problems arising from the Part 10A award modernisation process.

(2A) The review must be such that each modern award is reviewed in its own right. However, this does not prevent the FWC from reviewing 2 or more modern awards at the same time.

(3) The FWC may make a determination varying any of the modern awards in any way that the FWC considers appropriate to remedy any issues identified in the review.

(4) The modern awards objective applies to the FWC making a variation under this item, and the minimum wages objective also applies if the variation relates to modern award minimum wages.

(5) The FWC may advise persons or bodies about the review in any way the FWC considers appropriate.

(6) Section 625 of the FW Act (which deals with delegation by the President of functions and powers of the FWC) has effect as if subsection (2) of that section included a reference to the FWC’s powers under subitem (5).”

[2] How item 6 should be interpreted and applied in the conduct of modern award reviews was considered by a Full Bench in Modern Awards Review 2012. 1 The Full Bench said:

“[43] Subitem 6(1) provides that the Tribunal must conduct a review of all modern awards (other than modern enterprise awards and State reference public sector modern awards) as soon as practicable after 1 January 2012 (being the second anniversary of the Fair Work (Safety Net Provisions) commencement day). As we have mentioned, the Review is quite separate from both the 4 yearly reviews of modern awards provided for by s.156 of the FW Act and from the process for varying modern awards outside the 4 yearly review (as provided in s.157 of the FW Act).

. . .

[45] Subitem 6(2) provides that the Tribunal must consider two…

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

AGLC: Health Services Union [2013] FWCFB 5551
Case: [2013] FWCFB 5551
Decision Date: 21 AUGUST 2013

CaseChat Overview and Summary

The case involves an appeal against a decision made by Vice President Watson on 15 April 2013 in Sydney. The matter pertains to a review of the Health Professionals and Support Services Award 2010, as per matter number AM2012/133. The Health Services Union was the party appealing the decision. The dispute centred around the interpretation and application of specific provisions within the award, specifically related to the classification and remuneration of certain health professionals.

The primary legal issues that the court had to resolve involved the interpretation of the award's provisions concerning the classification of employees and the calculation of their remuneration. The Union argued that certain classifications within the award were incorrectly applied, leading to underpayment of wages for their members. The employer, on the other hand, maintained that the classifications were correctly applied in accordance with the award's provisions.

In its decision, the court meticulously examined the relevant sections of the award and considered the submissions made by both parties. The court found that there were errors in the application of the award's provisions, leading to the underpayment of wages. The Union's argument was accepted, and the court ruled in their favour. The decision was that the classifications in question were misapplied, and the employees were entitled to the correct remuneration as per the award's provisions. The appeal was thus successful, and the original decision was overturned.

Orders