[2010] FWA 990

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FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.158 - Application to vary or revoke a modern award

Baking Industry Association (NSW Employers)
(AM2010/6)

FOOD, BEVERAGE AND TOBACCO MANUFACTURING AWARD 2010

VICE PRESIDENT WATSON

SYDNEY, 11 FEBRUARY 2010

Variation of modern award – transitional provisions – hours of work – Fair Work Act 2009 ss 157, 158

[1] This decision concerns an application by the Baking Industry Association (NSW Employers) to vary the Food, Beverage and Tobacco Manufacturing Award 2010. 1

[2] The application seeks to vary the transitional provisions to allow employers to transition from employees working a 40 hour week under relevant award-based transitional instruments to a 38 hour week under the modern award.

[3] I issued directions for the filing of submissions in this matter and listed it for hearing on 10 February 2010. No written or oral submissions were made apart from those of the applicant.

[4] The applicant asserts that bakery employers in New South Wales were previously covered by the Pastrycooks, & c. (State) Award 2 and that award contained a 40 hour week. Corporations in New South Wales would have been covered by a notional agreement preserving a State award (NAPSA) with equivalent provisions since March 2006 and the terms of the Workplace Relations Act 1996.

[5] The applicant submits that consequent upon the making of the modern award, employers would either have to roster their employees for 38 hours and pay them the award rate of pay or continue existing rosters of 40 hours and pay 2 hours overtime. The application seeks to transition the effect of that change in the event that the latter option is adopted.

[6] The applicant did not raise this issue before the Full Bench when it considered transitional provisions for modern awards. However, as noted in its decision of 3 September 2009 3 the same issue arose with respect to the Pastoral Industry Award 20104 where the Western Australian NAPSA provided for a 40 hour week. The Full Bench provided for transitional provisions for some award changes but declined to do so with respect to the reduction in ordinary hours of work to 38 per week.5

[7] In my view the approach of the Full Bench should be adopted in this case. The application is rejected.

VICE PRESIDENT WATSON

Appearances:

Mr A Duc for the Baking Industry Association (NSW Employers)

Hearing details:

2009.

Sydney

February 10

 1   MA000073

 2   AN120410

 3   [2009] AIRCFB 800

 4   MA000035

 5   [2009] AIRCFB 800 at [109]




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