[2012] FWA 8165 |
|
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
National Employment Services Association
(AM2012/35)
LABOUR MARKET ASSISTANCE INDUSTRY AWARD 2010
[MA000099]
DEPUTY PRESIDENT HAMILTON |
MELBOURNE, 28 SEPTEMBER 2012 |
Consent Variation - Review of modern awards - application to vary the Labour Market Assistance Industry Award 2010 - hours of work - Fair Work (Transitional Provisions and Consequential Amendments) Act 2009, Schedule 5, Item 6; Fair Work Act 2009 ss.134, 138.
Introduction
[1] This decision concerns an application made by the National Employment Services Association (NESA) to vary the Labour Market Assistance Industry Award 2010 (the Award). The application is made under Schedule 5, Item 6 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the Transitional Act) as part of the review of all modern awards which Fair Work Australia is required to conduct after the first two years of all modern awards coming into effect (the 2012 Review).
[2] Following conciliation and discussions between the parties, at the hearing on 10 September 2012 I was advised that NESA, Jobs Australia, the Australian Services Union, and the Australian Education Union had agreed on a variation with respect to several aspects of the application made by NESA 1.
The Legislation
[3] Schedule 5, Item 6 of the Transitional Act provides:
“(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.
(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.
(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).”
[4] Provisions of the Fair Work Act 2009 (the Act) are also applicable and relevant to the 2012 Review. Sections 134 and 138 provide as follows:
“134 The modern awards objective
What is the modern awards objective?
(1) FWA must ensure that modern awards, together with the National Employment Standards, provide a fair and relevant minimum safety net of terms and conditions, taking into account:
(a) relative living standards and the needs of the low paid; and
(b) the need to encourage collective bargaining; and
(c) the need to promote social inclusion through increased workforce participation; and
(d) the need to promote flexible modern work practices and the efficient and productive performance of work; and
(e) the principle of equal remuneration for work of equal or comparable value; and
(f) the likely impact of any exercise of modern award powers on business, including on productivity, employment costs and the regulatory burden; and
(g) the need to ensure a simple, easy to understand, stable and sustainable modern award system for Australia that avoids unnecessary overlap of modern awards; and
(h) the likely impact of any exercise of modern award powers on employment growth, inflation and the sustainability, performance and competitiveness of the national economy.
This is the modern awards objective.
. . .
138 Achieving the modern awards objective
A modern award may include terms that it is permitted to include, and must include terms that it is required to include, only to the extent necessary to achieve the modern awards objective and (to the extent applicable) the minimum wages objective.”
Authorities
[5] In June 2012, the 2012 Review Full Bench handed down a decision 2 in relation to the 2012 Review. At paragraph 63 the Bench said:
“[63] Under sub item 6(3) of Schedule 5, the Tribunal has a broad discretion to vary any of the modern awards in any way that it considers necessary to remedy any issues identified in the Review. However, sub item 6(4) provides that in making such a variation the Tribunal must take into account the modern award objective in s.134 of the FW Act, and, if varying modern award and minimum wages, the minimum wages objective in s.284.”
[6] The Bench also said that s.138 of the Act was relevant to the review, and rejected the view that the review is “a ‘fresh assessment’ unencumbered by previous Tribunal authority”. Rather, “cogent reasons will need to be shown for departing from the previous Full Bench decision” 3.
[7] In a further statement the President indicated that:
“Parties interested in a modern award are encouraged to discuss the applications relating to that award with a view to arriving at a consent position, or at least narrowing the issues in dispute.” 4
Agreed Variations
[8] Those appearing agreed that the following variations should be made to the award:
“1. By deleting the sentence ‘The ordinary hours of work will be worked between 6.00 am and 8.00 pm Monday to Friday’ appearing in sub-clauses 21.2 Clause 21 -- Ordinary hours of work and inserting the following:
‘Except in relation to an employee engaged and paid to work their ordinary hours in accordance with sub-clause 23.6 - Penalty rates for ordinary hours of work, the ordinary hours of work will be performed between 6.00 am and 8.00 pm Monday to Friday.’
2. By deleting the cross-reference to ‘...clause 21.1’ appearing in the second line of clause 23.6(a) Penalty rates for ordinary hours of work, and inserting ‘clause 21.2’.
3. By deleting the word ‘Span’ appearing in the title of clause 21.2 and inserting the word ‘Spread’.
4. By deleting the word ‘span’ appearing in clauses 10.1(b)(ii), clause 10.4(d), clause 21.4(b)(iii) and inserting the word ‘spread’.
5. By deleting the word ‘Flexible hours’ appearing in clause 21.3 and inserting ‘Flexible hours - accrued days off option’.
6. By deleting the sentence ‘The following arrangements will apply in respect of full-time employees working in accordance with the working hours option specified in 21.1.’ and inserting ‘An employer may offer and an employee may agree to accept to work their ordinary hours, in accordance with the following arrangement:’
7. Insert new clause 21.5 ‘Nothing in this clause prevents other mutually agreed methods of working flexible hours from applying in accordance with clause 21.1.’ ” 5
[9] NESA submitted that the variation should be granted because of technical problems arising with the award, in particular the interaction of clauses 21.1, 23.1, and 23.6 6.
Decision
[10] I congratulate the parties on their willingness to engage in detailed discussions, and on their constructive work to reach agreement.
[11] I am satisfied that there is an anomaly or technical problem with the award within Schedule 5, Item 6(2)(b) of the Transitional Act, and that the award should be varied pursuant to Schedule 5, Item 6(3) to remedy this issue. I am also satisfied that the award should be varied pursuant to Schedule 5, Item 6(3) to provide a safety net which is simple and easy to understand in accordance with s.134(1)(g) of the Act. I have decided to grant the application. A determination is contained in PR528941.
[12] I have listed the matter for a directions hearing regarding the remaining issue of classifications.
DEPUTY PRESIDENT
Appearances:
Mr P Maguire and Ms S Sinclair for the National Employment Services Association
Mr K Godfrey, Ms J Forward and Mr T Halls for Jobs Australia
Mr W Fridell and Mr J Nucifora for the Australian Municipal, Administrative, Clerical and Services Union
Mr D Bunn for the Australian Education Union
Hearing details:
2012.
Melbourne.
27 June.
10 September.
1 PN112.
3 Ibid, at 88-89.
4 [2012] FWA 5721, Justice Ross, Modern Awards Review 2012 - Timetable, 5 July 2012, paragraph 8.
5 Exhibit N1, PN105.
6 PN112-227.
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