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Fair Work Act 2009
s.156 – 4 yearly review of modern awards
4 yearly review of modern awards—Award stage—Group 4—Aged Care
Award 2010—Substantive claims
(AM2018/13)
JUSTICE ROSS, PRESIDENT
DEPUTY PRESIDENT CLANCY
COMMISSIONER LEE MELBOURNE, 5 APRIL 2019
4 yearly review of modern awards – award stage – group 4 awards – substantive issues –
Aged Care Award 2010 – background documents to be published.
[1] A number of substantive claims have been made to vary the Aged Care Award 2010
(the Aged Care Award) as part of the 4 yearly review of modern awards (the Review). This
Full Bench has been constituted to deal with these substantive claims.
[2] This Statement deals with a number of documents that are being published today in
relation to the substantive claims to vary the Aged Care Award. The documents have been
prepared to assist in the hearing of the matter.
[3] The documents are background documents only and do not purport to be a
comprehensive discussion of the issues involved, nor do they represent the view of the
Commission on any issue.
[4] The following documents have been published:
A summary document outlining the relevant procedural history to the matter; the
claims that are being pursued by United Voice and the Health Services Union; and a
summary of submissions and submissions in reply received.
A document outlining a profile of the aged care industry.
A document outlining the legislative framework relevant to the Review (if there is
general agreement as to the content of the legislative framework document then there
will be no need for any party to spend time during their oral submissions dealing
with the legislative framework relevant to the Review).
[5] Parties will be asked to comment on these documents at the commencement of the
hearing on 10 April 2019 and address the following questions:
[2019] FWCFB 2249
STATEMENT
E AUSTRALIA FairWork Commission
[2019] FWCFB 2249
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1. Does any party dispute the background to clause 23.2 of the Aged Care Award set
out at paragraphs 5.12 to 5.28 of ABI’s submission of 20 March 2019?
2. At paragraphs 5.4 to 5.11 of its submission of 20 March 2019 ABI raises a
threshold question of whether s.156(3) applies to the claim. This proposition
appears to turn on the manner in which proposed variation has been drafted (see
paragraph 5.5 of ABI submission). We note that the Commission is not required
to decide an application in the terms applied for (s.599). Hence, if satisfied that
the claim has merit and that a variation is necessary to ensure that the Aged Care
Award achieves the modern awards objective, it would seem to be open to the
Commission to vary the award to require that both the casual loading and the
applicable penalties be paid on weekends and public holidays.
Question to ABI: In the event that the course outlined above is adopted, does that
resolve ABI’s threshold question?
PRESIDENT
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