[2012] FWA 7512 |
|
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
SUGAR INDUSTRY AWARD 2010
(ODN AM2008/56) [MA000087]
Sugar industry | |
COMMISSIONER SPENCER |
BRISBANE, 7 SEPTEMBER 2012 |
Modern award review - Sugar Industry Award 2010 - single contract hourly rate - clauses 20.1 and 38.3 - consent determination
Introduction
[1] This Decision concerns an application by the Queensland Cane Growers’ Association Union of Employer (the Applicant) pursuant to Schedule 5, Item 6, of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) (the Transitional Act). The application was filed on 8 March 2012 in accordance with the Statement 1 of President Giudice issued, on 17 November 2011.
[2] Consistent with the Statement 2 of President Ross a review of the Sugar Industry Award 2010 [MA000087] (the Award) was assigned to Stage one of the review process. The application was referred to Chambers for consideration.
[3] The Application sought to remedy an alleged ‘oversight’ in the original drafting of the Award during the award modernisation process undertaken by the then Australian Industrial Relations Commission (the AIRC). The oversight in relation to single contract hourly rates was also said to have been the subject of some confusion arising out of advice provided by the Fair Work Ombudsman. The amendment was sought to provide clarity and correct the oversight.
Proceedings
[4] The matter was originally brought on for Mention on 12 July 2012 with a notice of listing posted on the Fair Work Australia (FWA) website advising that any Parties having an interest in the application were to notify Chambers of their participation in, and appearance at, the Mention. It was agreed at this Mention between the Parties that it was possible the proposed variation might be settled by consent. Directions were issued on 12 July 2012 that required the Applicant to file material going to the historical basis for the application and the alleged ‘oversight’. The matter was listed for a Report back on 8 August 2012 with a view to finalising consent at this time.
[5] The Applicant provided the required material and the Parties agreed that the matter could be settled on the basis of a consent determination. The Applicant was asked to provide the Tribunal and all interested Parties a draft determination for consideration and final consent.
[6] A draft determination was filed by the Applicant on 24 August 2012. The draft determination was posted to the FWA website seeking any further comments and correspondence was sent to the interested Parties seeking formal consent by 30 August 2012.
[7] Consent to the draft determination on the terms proposed was provided by the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU), The Australian Workers’ Union, Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and Construction, Forestry, Mining and Energy Union.
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:
(a) achieve the modern awards objective; and
(b) are operating effectively, without anomalies or technical problems arising from the Part 10A award modernisation process.
(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).
[8] In conducting the review consideration has also been given to the guidance provided in Statements issued by the President.
Consideration
[9] The Tribunal is assisted by the Parties in this matter having consented to the Determination being issued in the terms sought by the Applicant. This is a relevant consideration in the exercise of the discretion in conducting the review.
[10] On the basis of the historical material provided by the Applicant and the consent of the interested Parties in the matter the Tribunal is satisfied that it is appropriate to issue a Determination in the terms sought by the Applicant. A separate Determination will issue in conjunction with this Decision [PR528591].
[11] The Tribunal also notes that in accordance with the Statement 3 of President Giudice of 17 November 2011, particularly at [4], a possible drafting matter in relation to clause 39.5 ‘Supervisor/Trainer/Co-ordinator’ was raised with the Parties. In the Tribunal’s view, and taking into account the various views of the Parties, consideration of this matter may be beyond those matters to which President Giudice was referring. A further Mention of this matter has been listed for 10am Monday, 17 September 2012 to further schedule consideration of the second issue.
COMMISSIONER
Appearances:
Mr G Trost for the Applicant.
Mr P Warren for the Australian Sugar Milling Council.
Mr G Noble for the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU).
Ms Z Angus for the The Australian Workers’ Union.
Mr S Maxwell for the Construction, Forestry, Mining and Energy Union.
Mr A Kentish for the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia.
Hearing details:
Mention: 8 August 2012.
Final written submissions:
30 August 2012
Printed by authority of the Commonwealth Government Printer
<Price code A, MA000087 PR528603 >