Indigenous Education And Boarding Australia
[2023] FWCFB 100
•30 MAY 2023
| [2023] FWCFB 100 |
| FAIR WORK COMMISSION |
| STATEMENT |
Fair Work Act 2009
s.158 - Application to vary or revoke a modern award
Indigenous Education And Boarding Australia
(AM2022/28)
| EXPERT PANEL FOR THE CARE AND COMMUNITY SECTOR | |
| DEPUTY PRESIDENT CLANCY COMMISSIONER BISSETT COMMISSIONER YILMAZ | MELBOURNE, 30 MAY 2023 |
Application to vary the Educational Services (Schools) General Staff Award 2020.
This application made by Indigenous Education and Boarding Australia (the Applicant) to vary the coverage of the Educational Services (Schools) General Staff Award 2020 (General Staff Award) pursuant to s.158 of the Fair Work Act 2009 (the Act) has previously been the subject of a conference before Deputy President Clancy on 19 December 2022 and a Statement of a previously constituted Full Bench of the Commission dated 23 December 2022. The 23 December 2022 Statement contained directions requiring the Applicant and various interested parties to file and serve material in relation to the application.
Subsequently, on 14 March 2023, Justice Hatcher confirmed that as a consequence of amendments made to the Act by the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022, the application must be dealt with by an Expert Panel for the Care and Community Sector.
As a consequence, the previously constituted Full Bench of the Commission issued the Statement dated 5 April 2023 in which it vacated the directions outlined in the 23 December 2022 Statement and indicated the parties were not required to take any further steps in response to those directions, but instead await further advice from the Commission in relation to the future conduct of the application.
On 24 May 2023, Justice Hatcher directed that the application be dealt with by an Expert Panel for the Care and Community Sector as presently comprised.
We observe that the directions outlined in the 23 December 2022 Statement afforded the Applicant opportunity to file an outline of submissions addressing, inter alia, the modern awards objective, together with any witness statements and documents upon which it intends to rely in support of the application by no later than 3pm on Friday 24 February 2023 and that the Applicant responded by filing a Submission dated 23 February 2023.
The Australian Services Union (ASU) sent a collective response on 17 March 2023 on behalf of the Australian Education Union (AEU), the Independent Education Union (IEU) and the United Workers’ Union (UWU). The Response dated 17 March 2023 of the ASU, AEU, IEU and UWU (collectively, the Unions) submitted:
a)They were unable to make a meaningful contribution to the Commission’s assessment of the merits of the application given the ‘limited material’ filed by the Applicant;
b)The directions outlined in the 23 December 2022 Statement ought be varied to provide the Applicant with an extension of four weeks to provide further detail in relation to the application;
c)Having raised these matters with the Applicant, and noting there was consent by the Applicant to such a process, the Applicant be granted four weeks to provide the following material:
i)Submissions as to how the proposed variation supports the modern awards objective under section 134 of the Act.
ii)Further details in relation to the cohort of employees potentially impacted, including:
·How many workers are currently employed in the sector?
·How many workers would be affected by the variation sought?
·What Awards and classifications are potentially affected workers currently employed under?
·Where are the relevant workers employed?
·Identify any federal award or agreement applicable to their employment.
iii)Further information concerning the nature of the work performed by potentially affected workers, including:
·De-identified position descriptions for such employees; and
·Materials setting out in detail the current terms and conditions of the relevant employees.
iv)Submissions which set out why the Applicant believes that its objectives are best achieved through an award variation rather than through its members engaging in good faith enterprise bargaining.
Having regard to the Submission dated 23 February 2023 and the Response dated 17 March 2023, we direct as follows:
a)The Applicant to file an outline of submissions addressing, inter alia, the modern awards objective, together with any witness statements and documents upon which it intends to rely in support of the Application, addressing the matters raised in the Response dated 17 March 2023 outlined above in [6] and in particular, outlining a description of the sector and services provided, including the profile of the employers in the sector and the boarders residing on the hostels (e.g. secondary school students, trainees and/or school-based apprentices) and the work performed by employees in the sector, by no later than 3pm on Wednesday 28 June 2023.
b)The Unions, together with any other interested, to file and serve an outline of submissions together with any witness statements and documents upon which they intend to rely in response to the Application, by no later than 3pm on Wednesday 26 July 2023.
c)The Applicant will be afforded the opportunity to file any submissions and material in reply, by no later than 3pm on Wednesday 9 August 2023.
d)Any party requesting a hearing must make such a request to [email protected] by no later than 3pm on Friday 11 August 2023.
e)If requested, a hearing will take place at 10.00am on Wednesday 16 August 2023, Thursday 17 August 2023 and Friday 18 August 2023.
f)There is liberty to apply.
All submissions and witness statements are to be submitted to [email protected] and are to be filed in both word and PDF formats.
All material filed in this proceeding will be posted on the webpage established in relation to the Application. Any questions regarding the Application or these directions can be directed to [email protected]
DEPUTY PRESIDENT
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