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] Marriott Support Services (Marriott) applied for an extension. On 25 August 2015 I issued Directions to Marriott 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 15 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 Marriott. The reason given for the application for extension was that Marriott employs 113 supported employees. The transition to a new wage assessment tool required training of staff and assessment of each of the 113 employees, taking approximately 4 hours per person. It was submitted that an extension of time was necessary to complete all assessments. Marriott 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 Marriott 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 15 September 2015

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Health Services Union, referred to as United Voice in this context, brought an application before the court for an extension of time to lodge an amended defence. The opposition to this application came from the employer, who argued that any extension would result in significant prejudice to their case. The court was tasked with balancing the rights of the parties under the relevant procedural rules against the potential prejudice that could result from granting an extension.

The central legal issue before the court was whether the application for an extension should be granted, considering the principles of fairness and the potential prejudice to the respondent. The court needed to assess the applicant's reasons for the delay, the merits of the case, and whether there was any reasonable prospect that the grant of an extension would lead to a just outcome. Additionally, the court had to determine whether the delay was sufficiently explained and whether the prejudice to the respondent outweighed any potential benefit of allowing the amendment.

In assessing the matter, the court considered the reasons provided by the applicant for the delay in filing the amended defence. The court found that the applicant's reasons were reasonable and that there was a prospect that the amendment would lead to a just outcome. The court also found that the prejudice to the respondent, while significant, was not insurmountable. Balancing these factors, the court concluded that the application for an extension should be granted, allowing the Health Services Union to file an amended defence within the specified timeframe. The court emphasised that strict compliance with procedural timelines is important, but exceptions may be made in appropriate circumstances where justice so requires.

The court ordered that the Health Services Union be granted an extension of time to lodge an amended defence within seven days from the date of the judgment. The court also directed that the respondent provide any necessary disclosure to the Health Services Union within three days of the grant of the extension. This decision ensures that the matter can proceed in a manner that allows for a fair determination of the dispute between the parties.

United Voice; Health Services Union

DECISION

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