Note: An appeal pursuant to s.604 (C2012/1389) was lodged against this decision - refer to Full Bench decision dated 8 February 2013 [[2013] FWCFB 580] for result of appeal.

[2012] FWA 8726

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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 Business Industrial

Graphic arts



Review of modern awards; application to vary the Graphic Arts, Printing and Publishing Award 2010 - payment of wages - payment on termination.


[1] Australian Business Industrial (ABI) made an application on 8 March 2012 to vary the Graphic Arts, Printing and Publishing Award 2010 (the Award). The application was made under Item 6 of Schedule 5 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 discussions between the parties, ABI varied its application on 25 July 2012. A hearing was conducted in Sydney on 3 September 2012 to consider the revised application. ABI was represented by Mr A Vernier and Ms A Syme. The Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (AMWU) was represented by Mr J Moriarty and Ms S. Taylor. The Printing Industry Association of Australia (PIAA) was represented by Ms N Gao.


[3] Item 6 of Schedule 5 of the Transitional Act provides:

[4] Other provisions of the Act are also applicable and relevant to the 2012 Review. Section 134 provides as follows:

Approach of Fair Work Australia to the 2012 Review

[5] In June 2012, the 2012 Review Full Bench issued a decision 1 addressing the legislative provisions applicable to the 2012 Review and the scope of the 2012 Review. The Full Bench stated at paragraph [63] the approach to be adopted by the Tribunal when making a variation. It reads:

[6] The 2012 Review Full Bench also made comments about the scope of the 2012 Review and the circumstances where a variation should be made when such a variation seeks to revisit matters that had been dealt with and determined under the Part 10A process.

[7] [Paragraphs [85] to [89] of the decisions read as follows:

[8] Vice President Watson has drawn from these statements that:

The proposed variations

[9] ABI’s revised application contains two proposed variations. The first concerns clause 28.1 of the award, dealing with the payment of wages, and the second concerns clause 28.5 of the award, dealing with payment on termination.

[10] Clause 28.1 currently provides:

[11] ABI is proposing that the current clause 28.1 be deleted and replaced with a clause that provides:

[12] Clause 28.5 currently provides:

[13] ABI proposes that the current clause 28.5 be deleted and replaced with:

The submissions of the parties

[14] ABI submitted that the two provisions it sought to vary are essentially mechanical in nature, facilitating the entitlements contained within the Award and how those entitlements are accessed. The proposed variations, in its submission, do not alter in any significant way the entitlements themselves. The proposed method of payment of wages balances both the needs of employers having regard to the modern workplace and also the need for safeguards to ensure that employees are paid regularly, predictably and in a manner where they are not disadvantaged. ABI submitted that the variations are necessary to achieve the modern award objective, most relevantly s.134 (1) (f) of the Act which requires that FWA take into account: ‘the likely impact of any exercise of modern award powers on business, including on productivity, employment costs and the regulatory burden.’ It was submitted that an employer could significantly reduce the cost of administering payroll by moving from a weekly to a fortnightly pay cycle.

[15] ABI submitted that the Award is one of very few modern awards that only allow for payment on a weekly basis. Only 10 of the 122 modern awards allow for weekly pay cycles. About 45% of modern awards provide for weekly or fortnightly pay cycles and about 26% provide for weekly, fortnightly or monthly pay cycles (be that by agreement with the majority of employees or an individual employee or at the discretion of the employer).

[16] ABI conceded that the issue of pay cycles had been raised during the award modernisation process by PIAA. PIAA had sought to allow the payment of wages on a fortnightly basis where there was agreement between the employer and a majority of employees or an employee. However ABI submitted PIAA did not press the issue and it was not genuinely dealt with as part of the award modernisation process. While ABI acknowledged that the issue could be remedied by an enterprise agreement it submitted that the most efficient way to remedy the issue was by loosening the current overly restrictive clause to allow for payment of wages in a manner other than just weekly.

[17] ABI submitted that the existing provision for the payment of wages on termination is outdated and has a detrimental impact on business. In particular, the term creates an administrative and financial burden by requiring the processing of payments outside of the business’s normal pay run; small businesses may not have staff available each day to assist in the calculation and processing of termination payments; the processing of a termination payment by electronic funds transfer is likely to result in the payment not being available to the employee until the next working day, resulting in a technical breach of the Award; processing termination payments is likely to involve external banking deadlines that are outside of the employer's control; and it is impracticable for an employer to finalise accurate calculations on the day of termination in some circumstances (such as where employment ends without prior notice). The proposed variation would still ensure that any unnecessary and unjustified delay of termination payments by an employer would be in breach of the Award.

[18] PIAA indicated that it did not oppose the variations to the Award proposed by ABI. It agreed with ABI that less frequent pay cycles would likely result in greater flexibility and cost savings to employers. In relation to the issue of payment on termination, it proposed an alternative wording should ABI's proposal not be accepted. This read:

[19] The PIAA submitted that while this wording is very similar to what is currently in the Award the reference to ‘the next business day’ recognises that the industry operates over seven days and there may be issues if a termination occurs on a Friday or Saturday.

[20] The AMWU opposed the proposed variations. It submitted that the two variations address clauses that were unchanged in the award modernisation process. The current clauses are identical to the equivalent clauses in the pre-modern Graphic Arts Award 2000. As such, it submitted, there is no evidence that the Award is not operating effectively, nor can there be an argument that any issues with the operation of these clauses has arisen from the award modernisation process. As modern awards provide a safety net for the lowest paid workers, any variation must be considered in relation to the paragraph (a) of the modern awards objective: to take into account ‘relative living standards and the needs of the low paid’. The AMWU submitted that the Award serves as an important safety net for low-paid workers. It is not intended to provide for every circumstance in every workplace. The matters addressed by the proposed variations would more appropriately be dealt with through enterprise bargaining.

[21] The AMWU submitted that the specific variation sought in relation to the pay cycle had been addressed by Deputy President Ives during the original award modernisation process. During oral arguments he resolved that it was best left as a matter for enterprise bargaining. There were no cogent reasons for departing from his decision.

[22] The AMWU argued that there is still a very strong preference for weekly payment by employees and the difficulty caused by long pay cycles continues to be significant for workers today. This is particularly the case for low-paid workers. Extending payroll cycles can also mean that any errors will take longer to rectify. Specifically for monthly pay cycles, further complexity arises for employees because each month has a different number of days. The AMWU also cast doubt on the proposition that increasing the pay cycle would have any more than a marginal cost saving to business.

[23] In relation to the proposed termination pay variation, the AMWU submitted that the existing provision for payment on the day of termination has a long history in the predecessor awards and is consistent with clauses across other modern awards, including the Manufacturing and Associated Industries and Occupations Award 2010 (the manufacturing award). In most cases the employer would have sufficient notice to arrange payment on the day of termination. Any difficulties would need to be balanced against the needs of workers who are suddenly without employment. The AMWU expressed concern that given the wording of the proposed clause, in almost all circumstances the employer could argue it would be ‘reasonably practicable’ to withhold termination payment until the next pay cycle, if for instance the employer would incur any increased expense or convenience at all.


[24] It is clear from the relevant transcript that no substantive consideration was given to the issue of the frequency of pay cycle at the time the Award was made. DP Ives noted in passing that the issue of the pay cycle could be dealt with in a ‘certified agreement’. Of course almost any provision in an award could be dealt with by enterprise bargaining. The matter was not pressed by PIAA. There is no evidence in the relevant Full Bench statement or decision 3 concerning the making of the Award that the Full Bench gave any consideration to the issue. This is therefore not a case where, in the words of the 2012 Review Full Bench ‘cogent reasons will need to be advanced for departing from the award provision.’

[25] There are very few modern awards that require wages to be paid weekly. The great majority of awards, including those which cover a greater number of low paid employees than this award, allow at least for fortnightly pay. The manufacturing award, which covers very similar employees to those covered by the Award, provides for wages to be paid weekly or fortnightly. Where there is agreement between the employer and the majority of employees in the relevant enterprise, or with an individual employee, wages may be paid three weekly, four weekly or monthly. I am satisfied that it is anomalous and unduly prescriptive for the Award to require that wages must be paid weekly. Varying the Award to bring it broadly into line with the manufacturing award will ensure that the Award meets the modern award objectives. In particular it is consistent with the need to promote flexible modern work practices.

[26] Accordingly, Clause 28.1 will be deleted and replaced with a new clause:

[27] The case for varying the provision dealing with payment on termination is less compelling. I note, for example, that the current clause is very similar to that in the manufacturing award. It would however be appropriate to make the minor change proposed by the PIAA, in recognition of the difficulties that may arise if an employee is terminated without notice on or just before a weekend. The clause will be varied so that it reads:



A Vernier and A Syme for Australian Business Industrial.

M Gao for the Printing Industry Association of Australia.

J Moriarty and S Taylor for the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union.

Hearing details:



3 September.

 1   [2012] FWAFB 5600.

 2   [2012] FWA 7212.

 3   [2009] AIRCFB 50, [2009 AIRCFB 345.

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