Fair Work Act 2009
s.160—Application to vary a modern award to remove ambiguity or uncertainty or correct error

Variation on the Commission’s Own Motion—Nurses Award 2020
(AM2021/77)

Section 160 of the Fair Work Act 2009 (Cth) – Commission acting on its own initiative to correct an error – Nurses Award 2020 – provisional view to vary clause 19.2.

[1] On 18 May 2021 a draft award variation determination and exposure draft for the Nurses Award 2020 (the Award) were issued 1, incorporating the decisions of the Overtime for Casuals Full Bench in AM2017/51 of 18 August 2020 and 30 October 2020.2 The decisions were incorporated by the amendment of clause 19.1 to apply to full-time and part-time employees only; by the insertion of a new clause 19.2 setting out overtime rates for casual employees; and by the renumbering the subsequent clauses accordingly.

[2] On 29 July 2021, the Full Bench in AM2019/17 issued a determination finalising the technical and drafting review of the Award as part of the 4 yearly review of modern awards. The determination came into operation on 9 September 2021. 3

[3] Clauses 19.2 of the Award sets out overtime rates for casual employees and clause 19.2(b) states:

‘19.2 Overtime rates—casual employees

...

(b) Overtime rates as prescribed in clause 19.1(a) do not apply to Registered nurse levels 4 and 5.’ (Emphasis added).

[4] The reference to clause 19.1(a) in clause 19.2(b) of the Award appears to be an error as the provision in the Award setting out overtime rates for casual employees is clause 19.2(a) not clause 19.1(a).

[5] It is my provisional view that clause 19.2(b) should be amended to refer to clause 19.2(a), as follows:

‘(b) Overtime rates as prescribed in clause 19.2(a) do not apply to Registered nurse levels 4 and 5.’

[6] A draft determination giving effect to the above provisional view is attached to this Statement.

[7] Any submission opposing the provisional views should be filed by 4pm (AEST) on Friday, 8 October 2021. Submissions should be sent to chambers.ross.j@fwc.gov.au.

[8] If no submissions are filed opposing the provisional view a final determination will be issued in the same form as the draft determination.

PRESIDENT

Printed by authority of the Commonwealth Government Printer

<MA000034  PR734465>

Attachment

MA000034  PRXXXXX

FAIR WORK COMMISSION

DRAFT DETERMINATION

Fair Work Act 2009
s.160—Application to vary a modern award to remove ambiguity or uncertainty or correct error

Variation on the Commission’s Own Motion
(AM2021/77)

NURSES AWARD 2020
[MA000034]

Application to vary a modern award to correct error – Nurses Award 2020 – overtime for casual employees.

A. Further to the decision issued by the Full Bench of the Fair Work Commission on XX September 2021 [[2021] FWCFB XXX], the above award is varied as follows:

1. By deleting the words “clause 19.1(a)” appearing in clause 19.2(b) and inserting the words “clause 19.2(a)”.

2. By updating the cross-references accordingly.

B. This determination comes into operation from 11 October 2021. In accordance with s.165(3) of the Fair Work Act 2009, this determination does not take effect in relation to a particular employee until the start of the employee’s first full pay period that starts on or after 11 October 2021.

PRESIDENT

 1   Nurses Award draft award variation determination, 14 May 2021.

 2   [2020] FWCFB 4350 and [2020] FWCFB 5636; see also PR723938.

 3   PR731767.