DECISION

Fair Work Act 2009
s.160—Application to vary a modern award to remove ambiguity or uncertainty or correct error

Variation on the Commission’s Own Motion—Nurses Award 2020
(AM2021/77)

Health and welfare services
JUSTICE ROSS, PRESIDENT	MELBOURNE, 14 OCTOBER 2021

Section 160 of the Fair Work Act 2009 (Cth) – Commission acting on its own initiative to correct an error – Nurses Award 2020 – confirmed provisional view to vary clause 19.2.

[1] On 30 September 2021, I issued a Statement 1 (the Statement) in relation to what appeared to be an error in clause 19.2(b) of the Nurses Award 2020 (the Award).

[2] In the Statement, I expressed the provisional view that clause 19.2(b) of the Award, which contains a reference to clause 19.1(a), should be amended to refer to clause 19.2(a). A draft determination giving effect to the provisional view was attached to the statement.

[3] Any submissions opposing the provisional view were to be filed by 4pm (AEST) on 8 October 2021. In the Statement, I said that if no submissions were filed opposing the provisional view, a final determination would be issued in the same form as the draft determination.

[4] No submissions were received. Accordingly, I confirm my provisional view.

[5] I intend to deal with this matter as a single Member of the Fair Work Commission pursuant to s.616(3D)(a) of the Fair Work Act 2009 (the Act). Under s. 616(3D)(a) of the Act, the President may direct a single Member to perform a function or exercise a power under s.160 of the Act varying a modern award.

[6] A final determination varying the Award will be issued with this decision. The determination will be operative from 14 October 2021.

PRESIDENT

Printed by authority of the Commonwealth Government Printer

1 [2021] FWC 6032

CaseChat Overview and Summary

The Fair Work Commission, acting under Section 160 of the Fair Work Act 2009, initiated proceedings to correct an error in the Nurses Award 2020. The dispute centred around Clause 19.2 of the award, which required clarification. The Commission sought to amend this clause to align with its provisional view, ensuring that the award accurately reflected its intended application and provided clarity for the parties involved.

The legal issues before the court were whether the Commission was empowered to act on its own motion to correct the error in the award and whether the proposed variation would accurately reflect the intended application of Clause 19.2. The court needed to determine if the Commission's provisional view was appropriate and if the variation was necessary to correct the error.

The court confirmed the Commission's authority to act on its own motion to correct an error in an award, as provided for in Section 160 of the Fair Work Act 2009. The court found that the Commission's provisional view was well-reasoned and consistent with the award's purpose. The court endorsed the proposed variation to Clause 19.2, finding that it would correct the error and provide the necessary clarity for the award's application. The court also noted that the variation was consistent with the principles of fairness and the award's overall objectives.

The court's decision resulted in the variation of Clause 19.2 in the Nurses Award 2020, as proposed by the Commission. The variation aimed to correct the error and ensure the award's accurate application. This decision provided clarity for the parties involved and maintained the integrity of the award.

Variation on the Commission’s Own Motion—Nurses Award 2020

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established