In the recent application to the Fair Work Commission filed by Ms. Emma Treves, the importance of due process and following the rules of the Fair Work Commission and of evidence to satisfy the burden of proof on an applicant was highlighted.
Ms Treves applied to vary the Horticulture Award 2020, seeking to remove the overtime penalty rate entitlement for casual employees.
She argued that the overtime entitlement has left employees worse off and that employers cannot afford to pay overtime rates.
Ms Treves claimed that she had standing to make the application as she had worked as a casual harvest employee covered by the Award.
However, the Full Bench found that she was not employed under the Award at the time she lodged her application.
They also determined that her letter sent to the Commission should not be treated as her application.
Therefore, the Full Bench dismissed her application on the basis that she was not entitled to make it.
They also concluded that the proposed variation was not necessary to achieve the modern awards objective.
The Full Bench considered the comprehensive decision-making process and industry consensus that led to the inclusion of the overtime entitlement for casual employees in the Award.
They found that Ms Treves' evidentiary case did not meet the burden required to justify a change to the Award.
Therefore, the application was dismissed.
On the face of it, application and processes within the Fair Work Commission can seem simple enough to the eager mind, but, there is always a case to be heard for the benefits of a professional Advocate being engaged and in your corner, this is one example of how things would most likely have been different, had a professional Advocate been engaged to prosecute the argument.
The Fair Work Commission is an adversarial jurisdiction by nature and no place for anything less that professional Advocacy, especially when advancing a matter to the Full Bench.
Full marks for effort though and we would always support an eager mind in the advancement of workers rights and a fair go for all.
Read the full decision: