Recent decision provides increased union power and broader coverage of Modern Awards

Standing to Appeal

A recent Fair Work Commission Full Bench (FWCFB) decision has held that United Voice (the Union) has the right to appeal decisions that affect enterprise bargaining, despite not being a bargaining representative. [1]

The FWCFB held that the Union satisfied the legal criteria for a “person aggrieved” by the FWC’s recent approval of the AAA Pet Resort Enterprise Agreement [2017] FWCA 4283 (the Agreement). The FWCFB considered the following points relevant to its decision:

  1. The Union had an interest in the decision, above the interest of an ordinary member of the public;
  1. The Union’s rules permitted it to enrol employees as members; and
  1. The Union was a bargaining representative for another related company.

The Union stated that this decision will provide it with greater “standing to appeal against other FWC judgments where it has a broader interest in the matter“. The increased union access to appeal enterprise agreements will likely lead to increased levels of union involvement in enterprise bargaining in Australia.

Broader coverage of Modern Awards?

In its decision, the FWCFB also turned the 2010 advice of the Fair Work Ombudsman (FWO) on its head. The FWO previously held firm that the coverage of the Miscellaneous Award 2010 (the Modern Award) “will not apply to employees who due to the nature of their work have traditionally not been covered by awards” (the Exclusion), and concluded that animal attendants and dog groomers were not covered by the Modern Award. However, the FWCFB held that the pet and grooming employees were to be covered by the Modern Award.

  • The FWCFB found that the Miscellaneous Award “was intended to capture low paid workers not covered by another award“, while the Exclusion applied only to employees, such as managerial and professionally qualified staff, who were traditionally award free because of their seniority.
  • The Union stated that this decision reinforces the “intent of having a ‘catch-all’ award safety net for lower-paid employees who fall outside of other modern awards“.

The effect of this decision will be widespread as it means that lower paid employee’s in the federal system will be entitled to the pay and conditions of the Modern Award, which are more favourable than that of the national minimum wage.

If you have any questions relating to the potential impact of Modern Awards on your business please do not hesitate to ask Nick Stevens, Megan Cant or Isabella Paganin.

[1] United Voice v Gold Coast Kennels Discretionary Trust t/a AAA Pet Resort [2018] FWCFB 128 (12 January 2018)

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