DECISION

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

United Voice; Health Services Union
(AM2013/30)

DEPUTY PRESIDENT BOOTH

SYDNEY, 30 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] Disability Services Australia (DSA) applied for an extension. On 2 September 2015 I issued Directions to DSA 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 29 October 2015. The HSU and UV were invited to file a response to those submissions. A joint response was received and no objection was raised.

[9] I have reviewed the submissions of DSA. The reason given for the application for extension was that DSA employs over 300 supported employees. It was submitted that an extension of time was necessary to complete all assessments. DSA also submitted that they had met with and written to their supported employees and their carers on many occasions to explain the transition.

[10] I am satisfied that DSA 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 29 October 2015

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, the Health Services Union of Australia (HSU) applied for an extension of time to file a document required under section 105(2)(a) of the Fair Work Act 2009. The application was opposed by United Voice, an organisation associated with the HSU. The matter was heard by the Commission, with a view to resolving the procedural dispute between the parties.

The central legal issue before the Commission was whether the HSU was entitled to an extension of time to file the required document, and if so, on what terms. The HSU argued that it had a good reason for its delay, and that the delay had not prejudiced United Voice. United Voice contended that the HSU had not demonstrated any exceptional circumstances warranting an extension of time, and that the delay had indeed caused prejudice.

The Commission found that the HSU had a reasonable excuse for the delay, as it had experienced difficulties in obtaining necessary information and personnel to prepare the document. However, the Commission noted that the delay had caused some prejudice to United Voice, as it had not been able to respond to the document in a timely manner. Taking these factors into account, the Commission granted the HSU an extension of time, but required it to pay a penalty for the late filing. The Commission also ordered the HSU to reimburse United Voice for some of its costs associated with the late filing.

The Commission's decision provides guidance on the factors it will consider when deciding whether to grant an extension of time in similar cases. The HSU's application was successful, but it was subject to conditions that reflected the prejudice caused to United Voice. The decision also highlights the importance of timely filing of required documents, and the potential consequences of failing to do so.

United Voice; Health Services Union

DECISION

CaseChat Overview and Summary

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Legal Principle Established