[2012] FWA 10081

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FAIR WORK AUSTRALIA

DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch. 5, Item 6 - Review of all modern awards (other than modern enterprise and State PS awards) after first 2 years

(AM2012/347)

SUGAR INDUSTRY AWARD 2010
[MA000087]

Sugar industry

  

COMMISSIONER SPENCER

BRISBANE, 28 NOVEMBER 2012

Modern Award review - Sugar Industry Award 2010 - Definitions - clauses 39.5 and 40.3 - Supervisor/Trainer/Coordinator.

Introduction

[1] This Decision concerns a matter in which Fair Work Australia (FWA) acts on its own initiative, pursuant to Schedule 5, Item 6, of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) (the Transitional Act). The underlying issue was set out in correspondence from the Australian Sugar Milling Association (ASMC) dated 15 November 2012. The issue arose from the Modern Award review of the Sugar Industry Award 2010 [MA000087] (the Award).

[2] The review was undertaken of the Modern Award by the Tribunal as presently constituted as part of the proceedings in AM2012/121 resulting in a decision and a determination. 1 Further to this, correspondence from ASMC was forwarded to interested parties. The relevant portion of which stated:

 2

[3] Arising out of that matter, the clauses the subject of this Decision were brought to the attention of the parties. It was agreed that these matters should be considered separately. Accordingly on its own motion, with the consent of the parties, FWA progressed the matter. The issue was that clause 39.5 appeared in the Modern Award as follows: “39.5 Supervisor/trainer/coordinator”. The resulting title concerned more than a typographical or drafting issue. The ASMC wrote to the Tribunal on this matter. The correspondence received from the ASMC requested that Fair Work Australia act of its own initiative in amending the Modern Award.

[4] The parties, after discussions, agreed that the title existing on its own in the Award was an error, that provided an ambiguity or uncertainty. To remedy the issue, required FWA on its motion to vary the Sugar Industry Award 2010 by inserting clauses 39.5 and 40.3 in regards to Supervisor/Trainer/Coordinator and by inserting sub-clause 3.1 to include a definition of minimum hourly wage. It was also necessary to re-number clauses 40.3 and 40.4 as 40.4 and 40.5 respectively.

[5] Directions and a Draft Determination were issued on 16 November 2012 on the FWA website requesting the consent of parties by 23 November 2012. The Directions invited other interested parties to advise whether they wished to be heard, in relation to the matter. It further advised that if any requests to be heard were received the matter would be listed for mention, failing this, the matter would be determined on the basis of the material before the Tribunal.

[6] The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU), 3 The Australian Workers’ Union,4 the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia5 and the Construction, Forestry, Mining and Energy Union6 have provided correspondence indicating that they either consented or did not object to the Determination being made in the terms proposed.

Relevant legislation

Schedule 5—Modern awards (other than modern enterprise awards and State reference public sector modern awards)


Part 2—The WR Act award modernisation process

 
6 Review of all modern awards (other than modern enterprise awards and State reference public sector modern awards) after first 2 years


(1) As soon as practicable after the second anniversary of the FW (safety net provisions) commencement day, FWA must conduct a review of all modern awards, other than modern enterprise awards and State reference public sector modern awards.


Note: The review required by this item is in addition to the annual wage reviews and 4 yearly reviews of modern awards that FWA is required to conduct under the FW Act.


(2) In the review, FWA must consider whether the modern awards:

(2A) The review must be such that each modern award is reviewed in its own right. However, this does not prevent FWA from reviewing 2 or more modern awards at the same time.


(3) FWA may make a determination varying any of the modern awards in any way that FWA considers appropriate to remedy any issues identified in the review.


Note: Any variation of a modern award must comply with the requirements of the FW Act relating to the content of modern awards (see Subdivision A of Division 3 of Part 2-3 of the FW Act).

(4) The modern awards objective applies to FWA making a variation under this item, and the minimum wages objective also applies if the variation relates to modern award minimum wages.

(5) FWA may advise persons or bodies about the review in any way FWA considers appropriate.

(6) Section 625 of the FW Act (which deals with delegation by the President of functions and powers of FWA) has effect as if subsection (2) of that section included a reference to FWA’s powers under subitem (5).

[7] In conducting the review consideration has also been given to the guidance provided in Statements issued by the President.

Conclusion

[8] The Tribunal is assisted by the Parties, in this matter, having consented to the Determination, being issued in the terms outlined. This is a relevant consideration in the exercise of the discretion in conducting the review.

[9] On the basis of the consent provided by the interested Parties in the matter, the Tribunal is satisfied that it is appropriate to issue a Determination in the terms proposed by the ASMC and agreed to by the interested parties. The variation to the Modern Award remedies the error of the stand alone title and removed the associated uncertainty. A separate Determination 7 (setting out the variation to the Modern Award) will issue in conjunction with this Decision.

COMMISSIONER

 1  Application by Queensland Cane Growers' Association Union of Employers [2012] FWA 7512 and PR528591.

 2   Correspondence of Mr Peter Warren, ASMC, dated 15 November 2012.

 3   Correspondence received on 16 November 2012.

 4   Correspondence received on 20 November 2012.

 5   Correspondence received on 27 November 2012.

 6   Correspondence received on 27 November 2012.

 7   PR531831.

Printed by authority of the Commonwealth Government Printer

<Price code A, MA000087  PR531829>