Health Services Union v Liviende Inc

[2013] FWC 7360

[2013] FWC 7360

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution in relation to flexible working arrangements

Health Services Union
v
Liviende Inc
(C2012/5869)

COMMISSIONER JOHNS MELBOURNE, 25 SEPTEMBER 2013

Decision varied pursuant to s.603 of the Fair Work Act 2009.

[1] This decision varies the decision issued by the Commission on 10 September 2013 in [2013] FWC 6830 (Decision).

[2] On 16 September 2013 the Commission received correspondence from the representative of Liviende Inc (Respondent) in respect of the Decision in which the Respondent expressed the view that the Decision appeared to go beyond the agreement of the parties that the Commission only “determine ... the statutory construction issue regarding s.206” of the Fair Work Act 2009 (Act). The Respondent submitted that the Commission should revoke those paragraphs of the Decision which appeared to go beyond the agreement of the parties (namely paragraph [67] onwards).

[3] Following receipt of the Respondent’s correspondence, the Commission wrote to the parties indicating that it was not the intention of the Commissioner “to determine the issue as to the appropriate classification in the Award for RSO’s.” Consequently, a draft correction to paragraphs [67] to [69] of the Decision was sent to the parties. Submissions were invited on the draft correction.

[4] On 18 September 2013, the Health Services Union (Applicant) filed and served its submissions. On 20 September 2013, the Respondent filed and served its submissions in reply.

[5] Having considered the views of both the Applicant and Respondent, the Commission exercises its power under s.603 of the Fair Work Act 2009 to vary the decision issued in [2013] FWC 6830 on 10 September 2013 by:

a) deleting paragraphs [67], [68] and [69], and inserting a new paragraphs [67], [68] and [69] as follows:

[67] Noting that RSOs perform or are expected to perform (but are not necessarily required to perform) the tasks listed in their position description and at the level provided for in the Agreement (i.e. Level 4), it then becomes necessary to determine which classification in Schedule B of the Award applies to RSOs.

[68] This is the exercise now to be undertaken by the Employer for the purposes of section 206 of the Act.

[69] However, while not pre-judging the issue, noting that it is common ground between the parties that the descriptors in Level 4 of the Agreement most closely align with the descriptors in Level 3 of the Award, it seems logical, but maybe not inevitable, that when applying the long line of authority referred to above, RSOs will likely be categorized by the Employer as Level 3 under the Award for the purposes of the exercise to be performed under section 206 of the Act.

b) inserting a new paragraph [71] as follows:

[71] If, after the Employer performs the exercise of assessing which level in the Award is the appropriate comparator as against Level 4 in the Agreement, the dispute between the parties remains unresolved either party is at liberty to apply to have the matter listed for further arbitration by the Commissioner.

COMMISSIONER

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