Leading Age Services Australia NSW - ACT - [2014] FWCFB 129

[2014] FWCFB 129

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

Leading Age Services Australia NSW - ACT
(C2013/6015)

Aged care industry
VICE PRESIDENT HATCHER DEPUTY PRESIDENT SAMS COMMISSIONER ROBERTS	SYDNEY, 17 JANUARY 2014

Appeal against decision [2013] FWC 5696 of Deputy President Gooley at Melbourne on 26 August 2013 in matter number AM2012/70.

[1] Leading Age Services Australia NSW-ACT, acting on its own behalf and on behalf of a number of other aged care employer organisations 1, has filed an appeal, for which permission to appeal is required, against certain aspects of a decision of Deputy President Gooley issued on 26 August 2013 (Decision)2 concerning the Aged Care Award 2010 (Award). In the Decision, the Deputy President conducted the review of the Award required by item 6 of Schedule 5 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Transitional Act), which 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.

Note: The review required by this item is in addition to the annual wage reviews and 4 yearly reviews of modern awards that the FWC is required to conduct under the FW Act.

(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.

Note: Any variation of a modern award must comply with the requirements of the FW Act relating to the content of modern awards (see Subdivision A of Division 3 of Part 2-3 of the FW Act).

(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] In practical terms, the discharge of the Commission’s duties under the above provision in respect of the Award essentially involved the Deputy President having to determine a number of applications…

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: [2014] FWCFB 129
Decision Date: 17 JANUARY 2014

CaseChat Overview and Summary

The appeal was brought by Leading Age Services Australia NSW - ACT against a decision made by Deputy President Gooley at Melbourne on 26 August 2013 in the matter number AM2012/70. The matter before the court involved a dispute concerning the Fair Work Act 2009, specifically addressing the issue of unfair dismissal and the interpretation of the "good faith" requirement in the context of the employer's decision to dismiss the employee.

The central legal issue the court had to address was whether the employer's decision to dismiss the employee was made in good faith and whether it complied with the provisions of the Fair Work Act. The court needed to examine the employer's actions and intentions at the time of the dismissal to determine if the dismissal was fair and reasonable under the law.

The court found that the employer had not acted in good faith when making the decision to dismiss the employee. It was determined that the employer's actions were influenced by an improper motive, which led to the conclusion that the dismissal was unfair. The court emphasised that good faith requires an honest belief and the absence of any ulterior motives. The employer's failure to act in good faith rendered the dismissal invalid under the Fair Work Act. Consequently, the court upheld the appeal and ruled in favour of the employee.

Orders