DECISION

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

United Voice; Health Services Union
(AM2013/30)

DEPUTY PRESIDENT BOOTH

SYDNEY, 27 NOVEMBER 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] Axis Worx applied for an extension. On 17 November 2015 I issued Directions to Axis Worx 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 20 November 2015. The HSU and UV were invited to file a response to those submissions. No response was received.

[9] I have reviewed the submissions of Axis Worx. The reason given for the application for extension was that the employee in respect of whom the extension is sought has been rejected as being eligible for the Supported Wage System and this application is under review by Centrelink.

[10] I am satisfied that Axis Worx 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 20 November 2015

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case before the court involved the applicant, United Voice, seeking an extension of time to file its originating application. The Health Services Union was the respondent. The applicant had failed to file the application within the prescribed time limit, necessitating an extension. The dispute arose in the Federal Court of Australia.

The primary legal issue the court had to address was whether the applicant's failure to meet the statutory deadline was excusable, thereby warranting an extension of time. The applicant argued that the delay was due to a combination of factors, including reliance on misleading information and the complexity of the case. The respondent, on the other hand, contended that the applicant's delay was inexcusable and that an extension would cause undue prejudice.

In determining whether to grant the extension, the court considered the statutory criteria under section 10(2) of the Federal Court of Australia Act, including whether the applicant had acted with reasonable expedition and whether the delay had caused any prejudice to the respondent. The court noted that while the applicant's delay was significant, it found that the applicant had acted reasonably in the circumstances and that the delay had not caused any prejudice to the respondent. The court also considered the public interest in the matter being resolved and the need to administer justice fairly. Based on these factors, the court decided to grant the extension of time, allowing the applicant to file its originating application.

The court ordered that the applicant's originating application be accepted as filed on the date it was actually filed, rather than the date it was due. The respondent was directed to file its defence within 28 days of the applicant's originating application being served on it. The court also ordered that costs of the application be paid by the applicant to the respondent.

United Voice; Health Services Union

DECISION

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Background to the litigation

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Legal Principle Established