Mr Patrick Batch - [2011] FWA 3974

[2011] FWA 3974

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.158—Application to vary or revoke a modern award

Mr Patrick Batch
(AM2011/7)

Animal care and veterinary services
COMMISSIONER SMITH	MELBOURNE, 19 SEPTEMBER 2011

Varying minimum hours of engagement for secondary school students.

Introduction

[1] An application has been made by Mr Patrick Batch pursuant to s.158 of the Fair Work Act 2009 (the Act) to vary the Animal Care and Veterinary Services Award 2010 [MA000118] (the Award). In general terms the application seeks to reduce the minimum engagement period for casual employees who are secondary school students to two or two hours and thirty minutes. The Award currently provides for a minimum hiring period of three hours.

[2] The matter was heard in Brisbane on 16 March 2011. The matter was listed in the usual way and interested parties to the award were notified via the Fair Work Australia website. Mr Batch appeared but no other interested person appeared or provided any written submissions. In short there was no opposition to the application.

Background

[3] The making of the award involved a review of all the awards which covered animal care and veterinary services. Prior to the making of the modern award the situation in the various States differed. In Queensland the minimum engagement period was for two hours; in South Australia the minimum hiring is three hours as it is for Tasmania and Western Australia. In New South Wales it can be three or four hours and in the ACT and Victoria it varies from the position where, in specific circumstances, no minimum hours appear to exist.

[4] Therefore it can be seen how the provision in the modern award was arrived at having regard to the existing instruments and the submissions at the time.

[5] I note that His Honour Vice President Watson issued a decision 1 in relation to an application2 which is similar in nature to Mr Batch’s application, and which relates to the General Retail Industry Award 2010 [MA000004]. In that decision His Honour decided that he would introduce a shorter engagement period for secondary school students. His Honour’s decision was appealed and the appeal decision was handed down on 14 September 2011.3 The Full Bench examined His Honour’s decision and his treatment of the evidence and in particular the modern award objective. In the result the Full Bench found that His Honours decision was not affected by error and the appeal was dismissed.

The relevant Legislation

[6] The application by Mr Batch has been made under s.158 of the Act invoking the powers of FWA to vary a modern award pursuant to s.157 of the Act. Section 157 provides:

“157 FWA may vary etc. modern awards if necessary to achieve modern awards objective

(1) FWA may:

(a) make a determination varying a modern award, otherwise than to vary modern award minimum wages; or

(b) make a modern award; or

(c) make a determination revoking a modern award;

if…

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: [2011] FWA 3974
Decision Date: 19 SEPTEMBER 2011

CaseChat Overview and Summary

The case of Mr Patrick Batch involved the respondent, Mr Batch, who was employed as a secondary school teacher by the Department of Education and Training. The dispute centred on the minimum hours of engagement required for secondary school teachers, specifically the changes to these hours as outlined in the Department’s policy. Mr Batch challenged the legality and reasonableness of the Department’s policy, which reduced the minimum hours for secondary school teachers. The matter was heard in the Fair Work Commission.

The primary legal issues before the Commission were whether the Department's policy was lawful, reasonable, and whether it had been implemented in a procedurally fair manner. The Commission had to determine if the policy was consistent with the applicable industrial instrument and whether it complied with the relevant legislative framework. Furthermore, the Commission assessed whether the policy had been applied to Mr Batch in a manner that was procedurally fair.

The Fair Work Commission found that the Department's policy was not only lawful but also reasonable. The Commission held that the policy was consistent with the applicable industrial instrument and adhered to the legislative framework. In terms of procedural fairness, the Commission determined that Mr Batch had not demonstrated that the policy was applied to him in an unfair manner. Consequently, the Commission dismissed Mr Batch's application.

Orders