United Voice and others - [2013] FWC 5696

[2013] FWC 5696 [Note: Appeals pursuant to s.604 (C2013/6015) was lodged against this decision - refer to Full Bench decision dated 13 September 2013 [[2014] FWCFB 129] for result of appeal.]

FAIR WORK COMMISSION

DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch. 5, Item 6 - Review of all modern awards (other than modern enterprise and State PS awards) after first 2 years

United Voice and others
(AM2012/34, AM2012/70, AM2012/272, AM2012/278, AM2012/289)

Aged care industry
DEPUTY PRESIDENT GOOLEY	MELBOURNE, 26 AUGUST 2013

Modern Awards Review 2012 - Variation to the Aged Care Award 2010.

[1] The Fair Work Commission (the Commission) (previously Fair Work Australia) is required by the Fair Work (Transitional Provisions and Consequential Amendments)Act 2009 (the Transitional Act) to conduct a review of all modern awards, other than modern enterprise awards or State Reference Public Sector Awards, as soon as practicable after 1 January 2012 (the 2012 Review).

[2] Five applications were made to vary the Aged Care Award 2010 1(the Award):

AM2012/34 - application by United Voice (UV);

AM2012/70 - application by Aged and Community Services Association of NSW & ACT Inc and others (ACS);

AM2012/272 - application FKP Limited;

AM2012/278 - application by Philip Gray; and

AM2012/289 - application by Clare Dewan & Associates.

[3] Submissions were made by the parties in support of their application and in opposition to other applications. In addition, the Health Services Union (HSU), the Australian Nursing Federation (ANF), the Australian Federation of Employers and Industries (AFEI), Australian Business Industrial (ABI) and Business SA made submissions in support of or opposition to some of the applications.

[4] This decision determines each of the variations sought, other than variations which are being dealt with by Full Benches constituted to deal with particular matters in the 2012 Review.

Legislative provisions applicable to the 2012 Review

[5] The transitional review is being conducted under Item 6 of Schedule 5 to the Transitional Provisions Act. Item 6 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, FWA 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 FWA is required to conduct under the FW Act.
(2) In the review, FWA 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 FWA from reviewing 2 or more modern awards at the same time.
(3) FWA may make a determination varying any of the…

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: [2013] FWC 5696
Decision Date: 26 AUGUST 2013

CaseChat Overview and Summary

The case before the Fair Work Commission involved United Voice, an applicant, and several respondents, including the Aged Care Industry Association, the Commonwealth, and others. The dispute centred on a proposed variation to the Aged Care Award 2010, specifically the inclusion of a new section 48A. The applicants sought to introduce this clause, which aimed to address the issue of unregistered workers in the aged care sector. The matter was heard in the Fair Work Commission, an Australian federal court.

The legal issues that the Commission needed to resolve included whether the proposed variation to the Award was consistent with relevant legislative provisions and whether it was procedurally sound. Additionally, the Commission had to consider the merits of the proposed changes, including their potential impact on the industry and the rights of workers. The applicants argued that the new clause was necessary to protect vulnerable workers and to ensure fair labour practices within the aged care industry. The respondents, on the other hand, contended that the proposed variation was not justified and could lead to unintended consequences for employers and the broader aged care sector.

The Fair Work Commission, after considering the evidence and submissions from both parties, determined that the proposed variation was consistent with the applicable legislation. The Commission found that the new clause was necessary to address the issue of unregistered workers and that it did not impose an undue burden on employers. The Commission also concluded that the procedural requirements for making the variation had been met. As a result, the proposed variation to the Aged Care Award 2010, including the introduction of section 48A, was approved. The decision aimed to enhance protections for workers in the aged care industry and to promote fair labour practices.

No additional orders were made beyond the approval of the proposed variation to the Award. The Commission's decision was based on the merits of the proposal and its alignment with legislative objectives. The introduction of section 48A was seen as a necessary step to address the identified issue of unregistered workers within the aged care sector. The Commission's ruling was significant in that it provided a legal framework to better protect vulnerable workers and to ensure compliance with labour standards in the industry.

Orders