[2016] FWCFB 8747

The attached document replaces the document previously issued with the code [2016] FWCFC 8747 on 16 December 2016.

Corrects MNC to read [2016] FWCFB 8747.

Associate to Vice President Watson

Dated 16 December 2016

Fair Work Act 2009
s.156 - 4 yearly review of modern awards

Four yearly review of modern awards – Animal Care and Veterinary Services Award 2010 – Substantive issues – Introduction of diploma qualified classification – Variation of competencies required for classifications.

Introduction

[1] This decision concerns an application of the Veterinary Nurses Council of Australia (VNCA) in respect of Schedules A.2.5 and A.2.5 of the Exposure Draft of the Animal Care and Veterinary Services Award 2015 (the Award) relating to the variation of the competencies required for progression from the Level 4 classification to the Certificate IV classification in Veterinary Nursing or equivalent under the Award and the introduction of a diploma qualified classification into the Award. The applications arose as part of the 2014 4-year review of awards conducted under s. 156 of the Fair Work Act (the Act).

[2] On 17 August 2015 the VNCA made written submissions regarding the proposed changes to the Award. The Australian Veterinary Association indicated that it did not support the level of remuneration for diploma qualified veterinary nurses as proposed by the VNCA by way of email to the Commission on 28 August 2015. On 26 October 2015 the VNCA supplied the Commission with further details of its claims.

[3] On 7 November 2016 the President constituted a Full Bench to deal with these matters. On 11 November 2016 Directions were issued requiring the VNCA to file written submissions and any witness statements or documentary material on which it sought to rely at the hearing of this application by 21 November 2016. On 21 November 2016 the VNCA requested and were granted an extension for the filing of materials until 28 November 2016. Parties opposing the VNCA’s application were invited to file materials in support of their position by 1 December 2016. This matter was listed for hearing on 5 December 2016.

[4] On 29 November 2016, the VCNA advised the Commission that it would not be filing any materials to supplement those it had filed in August and October 2015 and that it would not be appearing and the hearing. On 1 December 2016, it requested that the Commission consider these earlier materials at the hearing of this matter. No materials were received in opposition to the VNCA’s application.

[5] No party made an appearance at the hearing on 5 December 2016. Following the hearing, the Commission received email correspondence from the AVA. The AVA requested that the proposed changes not be introduced on the basis that there was a lack of substantive evidence to be considered and an inability to debate the content of those changes. It also indicated a willingness to explore an agreed position regarding diploma qualified veterinary nurses externally to the modern award review process of the Commission.

The Legislative Test

[6] In reviewing each award the Commission must have regard to the modern awards objective in s. 134 of the Act. The modern awards objective is to ‘ensure that modern awards, together with the NES, provide a fair and relevant safety net of terms and conditions’, taking into account the particular considerations identified in paragraphs 134(1)(a) to (h) (the s.134 considerations). The objective is very broadly expressed. 

[7] While the Commission must take into account the s.134 considerations, the relevant question is whether the modern award, together with the NES, provides a fair and relevant minimum safety net of terms and conditions. Fairness in this context is to be assessed from the perspective of the employees and employers covered by the modern award in question.

[8] Section 138 of the Act is also relevant, it emphasises the importance of the modern awards objective in these terms:

‘A modern award may include terms that it is permitted to include, and must include terms that it is required to include, only to the extent necessary to achieve the modern awards objective and (to the extent applicable) the minimum wages objective.’

[9] What is ‘necessary’ in a particular case is a value judgment, taking into account the s.134 considerations to the extent that they are relevant having regard to the submissions and evidence directed to those considerations.

New Classification

[10] An award should contain a set of classifications that set appropriate minimum rates of pay for major categories of employees covered by the Award. The new classification sought to be introduced is for a Diploma Veterinary Nurse who may have overall responsibility for the day to day operations of a nursing team or unit and may have specialist skills acquired from their diploma qualifications.

[11] Payment of a rate of pay in an award is not dependent on the mere holding of a qualification. A classification level should be based on the nature of duties that are required to be performed by the employer.

[12] In the absence of evidence and submissions on the nature of employment and roles in this industry a number of matters are not clear. We are not aware of the extent to which employees with a diploma qualification are required by their employer to assume overall responsibility for a team or unit. We are also unsure of the extent to which employees are required to exercise specialist skills arising from their qualifications and the nature of those skills. A consideration of these matters is necessary to establish whether there is a need for a new classification and the appropriate minimum rate of pay to attach to any new classification having regard to work value considerations and the other rates of pay in the award.

[13] We are not satisfied that a new classification should be inserted into the award at this time. Changes can be considered in the future if there is an appropriate basis for doing so.

Classification Definition

[14] The change sought in this respect seeks to change the reference to qualifications in the Level 4 definition. It is appropriate to update references to qualifications but we are not satisfied on the limited material before us that the current definition is inadequate or that the proposed change is appropriate. We decline to vary the award in this respect.

VICE PRESIDENT

Hearing details:

2016.

Melbourne.

5 December.

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