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Re Australian Industry Group

Re Australian Industry Group

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Case Copied 13 January 2021 52 min read

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[2021] FWCFB 115

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.160—Application to vary a modern award to remove ambiguity or uncertainty or correct an error

Australian Industry Group
(AM2020/1)

DEPUTY PRESIDENT GOSTENCNIK
DEPUTY PRESIDENT YOUNG
COMMISSIONER YILMAZ

MELBOURNE, 13 JANUARY 2021

Application to vary the Nurses Award 2010 to remove ambiguity or uncertainty or to correct an error – Fair Work Act 2009 (Cth) s.157 and s.160.

[1] This decision concerns an application by the Australian Industry Group (AI Group) to vary the Nurses Award 2010 1 (Nurses Award)pursuant to s.160, or in the alternative s.157, of the Fair Work Act 2009 (Act).

Nature of the Application

[2] The application concerns the rate at which casual employees covered by the Nurses Award are remunerated for:

• the performance of overtime, pursuant to clause 28.1 of the Nurses Award;

• ordinary hours performed on weekends, pursuant to clause 26 of the Nurses Award; and

• work performed on public holidays, pursuant to clause 32.1 of the Nurses Award.

[3] AI Group contends that the Nurses Award ought be varied to make clear that overtime, weekend and public holiday rates payable to casual employees are calculated on a base hourly rate exclusive of the casual loading (Cumulative Basis) and not on an hourly rate that includes the casual loading (Compounding Basis).

[4] This contention is advanced on three bases.

[5] Firstly, AI Group contends that the relevant provisions of the Nurses Award are ambiguous and/or uncertain, as the proper construction of the relevant provisions require rates for overtime, weekends and public holidays to be determined on the Cumulative Basis. Accordingly, AI Group contend that the Nurses Award may be varied to remove this ambiguity or uncertainty pursuant to s.160 of the Act. 2

[6] Secondly, AI Group contends that the provisions of the Nurses Award concerning overtime are erroneous, in the sense that they do not reflect the stated intention of the Australian Industrial Relations Commission (AIRC) as to the manner in which the relevant rates were to be calculated when the AIRC made the Nurses Award. Accordingly, AI Group contends that the Nurses Award may be varied to correct this error pursuant to s.160 of the Act. 3

[7] Thirdly, and in the alternative, AI Group contends that the variation sought is necessary to ensure that the Nurses Award meets the modern awards objective and may be varied pursuant to s.157 of the Act. 4

[8] The determination sought by the AI Group is set out at Annexure A to this decision (Proposed Variations). Pursuant to s.165(2) of the Act, AI Group seek that the variations to the Nurses Award operate retrospectively from 1 January 2010. 5

[9] The Australian Nursing and Midwifery Federation (ANMF) opposes the variation 6 and submits that the Nurses Award is not ambiguous or uncertain, and does not contain any error.7 In relation to the modern awards objective, the ANMF submits that the maters sought to be relied upon by AI Group are untested and…

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: [2021] FWCFB 115
Decision Date: 13 JANUARY 2021

CaseChat Overview and Summary

The Australian Industry Group (AIG) applied to the Fair Work Commission (FWC) to vary the Nurses Award 2010, citing ambiguities, uncertainties, and errors within the award. The FWC was called upon to determine the legality and appropriateness of these proposed changes under sections 157 and 160 of the Fair Work Act 2009. The decision involved discerning whether the proposed amendments would indeed rectify the claimed issues within the award while also considering the broader implications for the parties involved and the industry at large.

The primary legal issues before the FWC centred on whether the proposed variations were necessary to remove ambiguities, uncertainties, or to correct errors within the award, as stipulated by the Fair Work Act. The court also needed to evaluate the potential impacts of these variations on the rights and obligations of the award's stakeholders. The FWC had to balance the need for clarity and accuracy in the award with the necessity of maintaining fair industrial relations and ensuring that the changes would not adversely affect the intended protections and rights established under the award.

In its decision, the FWC thoroughly examined the specific sections of the award that AIG claimed were ambiguous or erroneous. The FWC considered the arguments presented by both AIG and the relevant unions, weighing the need for clarity against the potential disruption to existing industrial arrangements. Ultimately, the FWC concluded that the proposed variations were necessary to address the identified issues and thus upheld the application. The FWC also considered the broader implications of the variations, ensuring that the changes would not undermine the protections and rights established under the award.

The FWC's final order allowed for the variations to the Nurses Award 2010, as proposed by AIG. The decision aimed to eliminate the ambiguities, uncertainties, and errors identified, while also ensuring that the changes did not adversely affect the rights and obligations of the parties involved. The FWC's ruling provided clarity and certainty in the award, thereby facilitating a more stable and predictable industrial relations environment.

Orders