[2012] FWA 8262 |
|
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
Australian Federation of Employers and Industries
(AM2012/237)
DRY CLEANING AND LAUNDRY INDUSTRY AWARD 2010
[MA000096]
DEPUTY PRESIDENT HAMILTON |
MELBOURNE, 28 SEPTEMBER 2012 |
Consent Application - Review of modern awards - application to vary the Dry Cleaning and Laundry Industry Award 2010 - definition of morning shift - 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 Australian Federation of Employers and Industries (AFEI) to vary the Dry Cleaning and Laundry 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, an amended draft determination was filed by the AFEI on 5 September 2012. This amended draft determination had been the subject of discussions between those appearing in the proceedings. United Voice advised that the draft determination reflected an agreement reached in discussions between the AFEI and three unions, United Voice, the Australian Workers’ Union, and the Textile, Clothing and Footwear Union of Australia, who had no objection to the award being varied in the manner now sought 1. This draft determination superseded the terms of the application lodged by the AFEI on 8 March 2012.
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 (the 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. It 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. Finally, the Bench said that variations “should operate prospectively, unless there are exceptional circumstances which warrant a retrospective operative date”4.
[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.” 5
Variations Sought
[8] The existing clause 23.2 provides:
“23.2 Morning shift in a dry cleaning workplace means a shift commencing at or before 7.00 am and finishing after midday and in a laundry workplace means a shift commencing before 6.00 am.” [emphasis added]
[9] Those appearing in this matter seek to vary the clause so that it provides:
“23.2 Morning shift in a dry cleaning workplace means a shift commencing before 7.00 am and finishing after midday and in a laundry workplace means a shift commencing before 6.00 am.”
[10] They also seek the inclusion of an additional provision in the award:
“23.10 The variation to clause 23.2 made by Fair Work Australia on [date of determination] but with effect from 1 January 2010, does not take effect so as to require any employee engaged on a morning shift to repay any component of the wages pertaining to the morning shift loading, paid in respect of the period 1 January 2010 to [date of determination] nor will it operate to vary any agreed shift rosters in place on [date of determination] in an enterprise covered by this Award except where such variation is introduced in accordance with the provisions of clause 21.4—Rostering.”
[11] In submissions the parties explained that there was an ambiguity in clause 23.2 which was not intended 6.
Decision
[12] I congratulate the parties on their willingness to engage in detailed discussions, and on their constructive work to reach agreement.
[13] I am satisfied that there is an anomaly or technical problem with clause 23.2 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. I am satisfied that there are exceptional circumstances which warrant the retrospective operation sought by the parties. A determination is contained in PR529539.
DEPUTY PRESIDENT
Appearances:
Mr J Wimalaratna for the Australian Federation of Employers and Industries
Ms Z Angus for the Australian Workers’ Union
Mr N Swancott for United Voice
Ms V Wiles for the Textile, Clothing and Footwear Union of Australia
Hearing details:
2012.
Melbourne, with video link to Sydney.
June 27.
September 17.
1 PN102.
3 Ibid, at 88-89.
4 Ibid, at 115.
5 [2012] FWA 5721, Justice Ross, Modern Awards Review 2012 - Timetable, 5 July 2012, paragraph 8.
6 PN93-94; PN108-109.
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<Price code C, MA000096 PR529538>