[2010] FWAFB 9880 [2010] FWAFB 9880 Download Word Document FAIR WORK AUSTRALIA DECISION Fair Work Act 2009 s.604 - Appeal of decisions s.160 - Application to vary modern award to remove ambiguity or uncertainty Australian Municipal, Administrative, Clerical and Services Union v EMA Consulting and others (C2010/5198) JUSTICE BOULTON, SENIOR DEPUTY PRESIDENT DEPUTY PRESIDENT MCCARTHY COMMISSIONER SMITH SYDNEY, 23 DECEMBER 2010 Appeal against determination [MA00100 PR500495 ] and decision in transcript of Vice President Watson at Melbourne on 21 September 2010 in matters number AM2010/77, AM2010/109 and AM2010/112 - variation of modern award - first aid allowance. [1] On 21 September 2010, the first aid allowance clause in the Social, Community, Home Care and Disability Services Award 2010 (the Award) was varied by Vice President Watson. The decision to vary the clause was made following applications and submissions by various employers in the home care sector, including the Victorian Employers’ Chamber of Commerce and Industry (VECCI), pursuant to s. 160 of the Fair Work Act 2009 (the Act) which provides for a modern award to be varied in order to remove “an ambiguity or uncertainty or to correct an error.” [2] In proceedings before the Vice President on 3 August 2010, the applicant employers made submissions regarding the application of the first aid provision (clause 19.4) in the Award to home care employees and to part-time and casual employees and proposed variations to the clause. These variations were opposed by the Australian Municipal, Administrative, Clerical and Services Union (ASU) on the basis that there was no ambiguity or uncertainty in the award provision. The Vice President accepted that there was some uncertainty and ambiguity in relation to certain aspects of clause 19.4 and directed the parties to hold discussions on the wording of an appropriate award variation. On 21 September 2010, as no agreement had been reached on a draft award variation, the Vice President heard further submissions from the parties. The Vice President decided that the VECCI draft variation was the most appropriate and that a determination would be made in those terms. [3] On 21 September 2010, the Vice President varied the Award to include a new first aid allowance provision as follows: “ 19.4 First aid allowance (a) First aid allowance—full-time employees A weekly first aid allowance of 1.67% of the standard rate per week will be paid to a full-time employee where: (i) an employee is required by the employer to hold a current first aid certificate; and (ii) an employee is required by the employer to be, in a given week, responsible for the provision of first aid to employees employed by the employer. (b) First aid allowance—casual and part-time employees The first aid allowance is payable at 1/38th of the full-time allowance per hour for part-time and casual employees where: (i) an employee is required by the employer to hold a current first aid certificate; and (ii) an employee is required by the employer to be responsible for the provision of first aid to employees employed by the employer.” The new provision was to take effect on 1 January 2010. [4] The ASU appealed against the decision and award variation made by the Vice President. The grounds of appeal raised issues regarding the award modernisation process; the findings as to ambiguity and uncertainty; the application of the first aid award provision to home care employees in certain States; and the effect that the award variation might have, namely that some employees covered by the Award would lose a long standing entitlement to first aid allowance. [5] Submissions in the appeal were presented in proceedings before the Full Bench on 18 November 2010. At the conclusion of the proceedings on that day, we encouraged the parties to have discussions in an endeavour to resolve the issues relating to the first aid allowance under the Award. A member of the Bench was made available to assist if required. [6] On 16 December 2010 the Bench was advised that the parties to the proceedings had reached agreement on an award variation dealing with first aid allowance. This would, in particular, address concerns raised by employers and the ASU regarding the operation of the award provision in relation to home care and other employees covered by the Award. [7] Having regard to the submissions in the appeal proceedings and the agreement now reached between the parties, we have decided to allow the appeal by consent and set aside the award variation made on 21 September 2010. The Award will be varied to include the first aid provision now agreed between the parties. The variation will apply from the first pay period on or after 1 January 2010. SENIOR DEPUTY PRESIDENT Appearances : N Campbell of counsel with J Nucifora for the Australian Municipal, Administrative, Clerical and Services Union. M McKenny of counsel with A Marriot for Victorian Employers’ Chamber of Commerce and Industry. A Cameron for various Tasmanian employers. Hearing details: 2010. Melbourne: November, 18. Printed by authority of the Commonwealth Government Printer <Price code A, MA000100  PR505335>