Fair Work Act 2009_

s.158 - Application to vary or revoke a modern award

Application to vary a modern award - application for interim orders - application for interim orders dismissed.

[1] On 22 May 2014, the Independent Education Union filed an application for an interim order pursuant to s.589 of the Fair Work Act 2009 that the transitional provisions in sub-clauses A.3.7 and A.8 of the Educational Services (Teachers) Award 2010 continue to apply as though sub-clause A.3.8 had no effect and notwithstanding the provisions of clause A.8.6. On the same day, United Voice applied for a similar order in relation to the Children's Services Award 2010 that sub-clauses A.3.7 and A.3.8 would continue to apply as though sub-clause A.3.9 had no effect. The unions sought for these orders to have effect until the substantive applications to vary the awards were determined, or until further order of the Fair Work Commission.

[2] The unions both provided written submissions in support of the interim orders with their applications. Submissions were subsequently provided by Goodstart Early Learning Limited, a large childcare employer, who did not oppose the Union's applications for interim orders. Community Connections Solutions Australia, an industry peak body, provided submissions supporting the applications. The Australian Childcare Centres Association and the Australian Childcare Alliance provided submissions opposing the interim orders, as did Australian Business Industrial, New South Wales Business Chamber and the Australian Federation of Employers and Industry. Reply submissions were subsequently filed by both the Independent Education Union and United Voice.

[3] Having had regard to all of the submissions, I find that it is not appropriate in all of the circumstances to make an interim order. If the unions are unsuccessful in their substantive applications and employers are required to recover overpaid wages, doing so will inevitably become an onerous ordeal and I find that the balance of convenience weighs against the granting of interim orders.

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