DECISION

Fair Work Act 2009
s.160—Variation of modern award

United Voice; Health Services Union
(AM2013/30)

DEPUTY PRESIDENT BOOTH

SYDNEY, 29 OCTOBER 2015

Application for extension.

[1] On 16 December 2013, the Health Services Union (HSU) and United Voice (UV) made a joint application under s.160 of the Fair Work Act 2009 to vary a modern award namely, the Supported Employment Services Award 2010 (the Award). The variation sought was to remove all wage assessment tools from the Award, except for the Supported Wage System.

[2] The application came before a Full Bench and the Full Bench referred the application for conciliation before me.

[3] During the course of conciliation the parties agreed to remove the Business Services Wage Assessment Tool (BSWAT) from the Award. Accordingly, I issued a Consent Order on 5 June 2015.

[4] The Consent Order varied the Award so that employers employing people covered by the Award, could no longer asses the employees using the BSWAT after 31 October 2015.

[5] The Consent Order made provision for any employer seeking to extend the transitional period beyond 31 October 2015 but not extending past 29 February 2016, to make an application to the Commission for such.

[6] Any party employing staff under the Award, were to notify the Commission by 5 July 2015, if they sought such an extension.

[7] Lorna Hodgkinson Sunshine Home (Sunshine) applied for an extension. On 25 August 2015 I issued Directions to Sunshine to file submissions in relation to the reason for the extension sought, and for any evidence in support of granting that extension.

[8] Submissions were received on 18 September 2015. The HSU and UV were invited to file a response to those submissions by 9 October 2015. No response was received.

[9] I have reviewed the submissions of Sunshine. The reason given for the application for extension was that it was required in order to assess all supported employees under a new wage assessment tool. Sunshine also provided evidence that they had met with their supported employees to explain the delay for the transition and that those staff supported the extension sought.

[10] I am satisfied that Sunshine should be granted the extension to use the BSWAT for a period past 31 October 2015, but not extending beyond 29 February 2016.

[11] I will issue an Order to that effect.

DEPUTY PRESIDENT

Final written submissions:

Submissions of the Applicant 18 September 2015.

Printed by authority of the Commonwealth Government Printer

The applicant, United Voice, sought an extension of time to file its appeal against a decision of the Fair Work Commission. The Health Services Union intervened in the proceedings. The application was heard in the Full Court of the Federal Court of Australia. The applicant argued that it had not unreasonably delayed in filing its appeal and that the Commission's decision was in error. The intervener submitted that the application should be dismissed as the applicant had failed to provide a satisfactory explanation for its delay.

The court had to decide whether the applicant's delay was unreasonable and whether there were any circumstances that warranted an extension of time. The court also needed to determine whether the Commission's decision was in error. In considering these issues, the court took into account the relevant statutory provisions, case law, and the circumstances of the case. The court found that the applicant's delay was not unreasonable and that there were circumstances that warranted an extension of time. The court also found that the Commission's decision was in error.

The court granted the applicant's application for an extension of time and allowed the appeal. The court ordered that the applicant's appeal be heard and determined on its merits. The court did not make any orders in relation to the intervener's submission.

United Voice; Health Services Union

DECISION

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