[2012] FWA 8262

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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

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 This draft determination superseded the terms of the application lodged by the AFEI on 8 March 2012.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:

[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:

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:

[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:

Variations Sought

[8] The existing clause 23.2 provides:

[9] Those appearing in this matter seek to vary the clause so that it provides:

[10] They also seek the inclusion of an additional provision in the award:

[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.

 2   [2012] FWAFB 5600.

 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.

Printed by authority of the Commonwealth Government Printer

<Price code C, MA000096  PR529538>