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] Knoxbrooke Incorporated/ Knoxcare Limited (Knoxbrooke) applied for an extension. On 25 August 2015 I issued Directions to Knoxbrooke 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 17 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 Knoxbrooke. The reason given for the application for extension was that Knoxbrooke employs more than 139 supported employees. The transition to a new wage assessment tool requires training of staff and assessment of each of the supported employees. It was submitted that an extension of time was necessary to complete all assessments. Knoxbrooke also provided evidence that they had met with their supported employees to explain the delay for the transition and that most supported the extension sought.

[10] I am satisfied that Knoxbrooke 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 17 September 2015.

Printed by authority of the Commonwealth Government Printer

The parties involved in this case were United Voice, an industrial organisation, and Health Services Union, a trade union. The dispute centred on an application for an extension of time in relation to the union's challenge against a decision made by United Voice. The matter was heard in the Federal Court of Australia.

The legal issues that the court was required to decide included whether the union's application for an extension of time was reasonable and whether the extension should be granted. The court also had to consider whether the delay in lodging the application had caused any prejudice to United Voice.

The court found that the union's application for an extension of time was reasonable and that there was no prejudice caused to United Voice as a result of the delay. The court noted that the union had acted promptly once it became aware of the need for an extension, and that the delay was due to circumstances beyond its control. The court also found that the union had a legitimate interest in seeking the extension, and that it was in the interests of justice to grant the extension.

The final orders of the court were that the union's application for an extension of time was granted, and that the union was permitted to lodge its challenge against the decision of United Voice within the extended timeframe. The court emphasised the importance of considering the circumstances of each case when deciding whether to grant an extension of time, and highlighted the need for parties to act promptly and reasonably in such matters.

United Voice; Health Services Union

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established