[2012] FWA 9142

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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

United Voice
Australian Federation of Employers and Industries
(AM2012/28, AM2012/230)

Health and welfare services



Modern Awards Review 2012 - application to vary the Fitness Industry Award 2010.


[1] This decision concerns separate applications by United Voice (UV) and the Australian Federation of Employers and Industries (AFEI) to vary the Fitness Industry Award 2010 (Award). The applications are made under Schedule 5, Item 6 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (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 (2012 Review).

[2] The applications were first listed for Mention and Directions on 27 June 2012. I directed that the parties provide submissions in support of their applications by 22 August 2012, and submissions in reply by 24 September 2012. The matter was listed for hearing on 8 October 2012.

[3] At the hearing on 8 October further conciliation and discussions took place. Those appearing reached in principle agreement. The matter was adjourned to enable them to develop an agreed draft determination to reflect the in principle agreement 1. I was provided with an agreed draft determination on 22 October2.

The Legislation

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

[5] 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:


[6] In June 2012, the 2012 Review Full Bench handed down a decision 3 in relation to the 2012 Review. At paragraph 63 the Bench said:

[7] The Bench also said:

[8] In relation to the application of s.138 of the Act to the 2012 Review, the Bench said:

[9] In a further statement the President indicated that:

History of the Award

It is necessary to deal with the history of the Award. The Award was made by the Award Modernisation Full Bench during the stage 4 award modernisation process. In a statement 5 on the award modernisation process handed down on 25 September 2009, the Full Bench stated:

[10] In its decision of 4 December 2009, 6 the Full Bench made the following remarks:

[11] The Full Bench made comments of particular relevance to the UV application before me. In particular, UV advised me that Service Skills Australia in 2011 finalised the SIS10 Sport, Fitness and Recreation Training Package, and this package was now fully endorsed. This had not occurred at the time that the award was made:

[12] The Award was further altered during 2010 in regards to the minimum wage, the Supported Wage System and choice of superannuation service providers. On 20 July 2010, the Award classification structure was varied by decision of Vice President Watson following applications by YMCA, Aquatics Down Under, Qualified limited, and Royal Life Saving Society - Queensland.

1. Agreed Variations (AM2012/28 - Application by UV; (AM2012/230 - Application by AFEI

[13] UV sought (AM2012/28) variations to the award clauses relating to minimum wages, and the classification structure of workers covered by the award (clauses 17.1 and Schedule B). AFEI sought variations relating to the definition of loadings and penalty rates in Schedule A. There was initially a considerable degree of disagreement. However, following conciliation those appearing agreed on a suggested draft determination, which involved a degree of compromise. Other variations were agreed.

[14] I congratulate UV, the AFEI and the others appearing for their work in developing an agreed draft determination.

[15] I am satisfied that the award should be varied in the terms agreed. These variations are consistent with the legislative requirements regarding this review. I am satisfied that the requirements of Schedule 5, Item 6(2)(a) and (b) and Schedule 5, Item 6(3)) are met, as are the requirements relating specifically to minimum wages (Schedule 5, Item 6(4) and ss.135 and 238). I will make a determination as sought.

2. Application by AFEI (AM2012/230)

[16] In their application AFEI sought variations to Schedule A - Transitional Provisions. Variations to the transitional provisions will be dealt with in due course by a Full Bench 7.



N Swancott of United Voice

T Doyle and J Zadel of Australian Federation of Employers and Industries

D Wilkinson and K Barrett of Fitness Australia

Hearing details:


Melbourne and Sydney

8 October

Final written submissions:


22 October

 1   PN118-166

 2   Email from Lewis Roper, Final Draft Determination - Fitness Award Review, 22 October 2012

 3   [2012] FWAFB 5600.

 4   [2012] FWA 5721, Justice Ross, Modern Awards Review 2012 - Timetable, 5 July 2012, paragraph 8.

 5   [2009] AIRCFB 865

 6   [2009] AIRCFB 945

 7   [2012] FWA 5721

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