[2012] FWA 9661 |
|
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
Application by United Voice
(AM2012/25)
Application by The Australian Industry Group
(AM2012/76)
Application by National Union of Workers
(AM2012/78)
Application by Business SA
(AM2012/262)
Manufacturing and associated industries | |
COMMISSIONER CARGILL |
SYDNEY, 22 NOVEMBER 2012 |
Review of the Manufacturing and Associated Industries and Occupations Award 2010.
[1] This decision concerns separate applications by United Voice (UV), The Australian Industry Group (AIG), National Union of Workers (NUW) and Business SA to vary the Manufacturing and Associated Industries and Occupations Award 2010 (the Manufacturing Award). The applications are made under Schedule 5, Item 6 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (TPCA Act) as part of the review of all modern awards which Fair Work Australia (FWA) is required to conduct after the first two years of those modern awards coming into effect (2012 Review).
[2] The matters were listed for mention and programming on 2 August 2012. Directions were issued for the filing of material in support of and in response to the applications. Provision was also made for submissions in reply. The matters were heard on 31 October 2012.
[3] Prior to that hearing each of the applications was amended by the withdrawal of parts of the respective claims. It should be noted that a number of submissions had been made in relation to some of those matters which were subsequently withdrawn. Unless the context requires otherwise, I intend to refer only to the remaining parts of the claims and submissions in relation thereto.
Relevant legislation
[4] Schedule 5, Item 6 of the TPCA 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).”
[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:
“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.”
[6] As one of the applications before me relates to modern award minimum wages, the minimum wages objective is also relevant. Section 284 provides as follows:
“284 The minimum wages objective
What is the minimum wages objective?
(1) FWA must establish and maintain a safety net of fair minimum wages, taking into account:
(a) the performance and competitiveness of the national economy, including productivity, business competitiveness and viability, inflation and employment growth; and
(b) promoting social inclusion through increased workforce participation; and
(c) relative living standards and the needs of the low paid; and
(d) the principle of equal remuneration for work of equal or comparable value; and
(e) providing a comprehensive range of fair minimum wages to junior employees, employees to whom training arrangements apply and employees with a disability.
This is the minimum wages objective.”
Relevant Authorities
[7] On 29 June 2012, the 2012 Review Full Bench handed down a decision in relation to the 2012 Review 1. The Full Bench said:
“[63] Under subitem 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, subitem 6(4) provides that in making such a variation the Tribunal must take into account the modern awards objective in s.134 of the FW Act, and, if varying modern award and minimum wages, the minimum wages objective in s.284. “
[8] The Full Bench also said:
“[85] Two points about the historical context are particularly relevant. The first is that awards made as a result of the award modernisation process are now deemed to be modern awards for the purposes of the FW Act (see Item 4 of Schedule 5 of the Transitional Provisions Act). Implicit in this is a legislative acceptance that the terms of the existing modern awards are consistent with the modern awards objective. The second point to observe is that the considerations specified in the legislative test applied by the Tribunal in the Part 10A process is, in a number of important respects, identical or similar to the modern awards objective which now appears in s.136.”
......
[86] Although the Tribunal is not, as a non-judicial body, bound by principles of stare decisis, as a matter of policy and sound administration it has generally followed previous Full Bench decisions relating to the issue to be determined, in the absence of cogent reasons for not doing so. In another context three members of the High Court observed in Nguyen v Nguyen:
‘When a court of appeal holds itself free to depart from an earlier decision it should do so cautiously and only when compelled to the conclusion that the earlier decision is wrong. The occasions upon which the departure from previous authority is warranted are infrequent and exceptional and pose no real threat to the doctrine of precedent and the predictability of the law: see Queensland v The Commonwealth (1977) 139 CLR 585 per Aickin J at 620 et seq.’
[87] While the Tribunal is not a court, the public interest considerations underlying these observations have been applied with similar, if not equal, force to appeal proceedings in the Tribunal. In Re Dalrymple Bay Coal Terminal Pty Ltd a Full Bench summarised the position in relation to single members sitting at first instance as follows:
‘There is not a developed system of stare decisis in this jurisdiction. However it is clearly desirable for members of the Commission sitting alone to adhere to Full Bench decisions which are relevant to the matter being determined. Such a policy aids consistent decision making which in turn provides the parties to Commission proceedings with greater certainty.’
[88] These policy considerations tell strongly against the proposition that the Review constitutes a “fresh assessment” unencumbered by previous Tribunal authority.
[89] In circumstances where a party seeks a variation to a modern award in the Review and the substance of the variation sought has already been dealt with by the Tribunal in the Part 10A process, the applicant will have to show that there are cogent reasons for departing from the previous Full Bench decision, such as a significant change in circumstances, which warrant a different outcome.” (References omitted)
[9] The Full Bench said in relation to the application of section 138 of the Act to the 2012 Review:
“[33] We are satisfied that s.138 is relevant to the Review. The section deals with the content of modern awards and for the reasons given at paragraph [25] of our decision it is a factor to be considered in any variation to a modern award arising from the Review. We also accept that the observations of Tracey J in SDAEA v NRA (No.2), as to the distinction between that which is “necessary” and that which is merely desirable, albeit in a different context, are apposite to any consideration of s.138.
[34] While s.138 is relevant to the Review there is still the question of the extent of its impact and the circumstances in which it will have on an application to a variation determination. The supplementary submissions revealed a diversity of views about these issues. We are not persuaded that these issues have been the subject of sufficient debate at this stage. The precise impact of s.138 is a question best considered in the context of a particular application. We agree with the RCAV’s supplementary submission that “the nature of the evidence and the facts as found arising from that evidence will condition the exercise of power and the ultimate outcome required to be determined by the review”.
[10] I shall now consider each of the applications in turn. They are dealt with in ascending numerical order.
1. Application by UV (AM2012/25)
[11] UV seeks to vary the Manufacturing Award to make provision for minimum wages and conditions for general cleaning employees who are direct employees of employers covered by the award. It seeks to do this by the insertion of a definition of “general cleaning” into clause 3.1, the amendment of the descriptors in clause B.4.3 of Schedule B to include general cleaning related indicative tasks and the insertion of a minimum wage rate for general cleaning employees. The application also proposes the insertion of two new allowances for employees engaged in general cleaning.
[12] UV notes that its application relates only to direct employees of employers covered by the Manufacturing Award and does not seek to disturb the demarcation between those employers and contract cleaning companies which are covered by the Cleaning Services Award 2010 (Cleaning Services Award).
[13] UV notes that part of Business SA’s original application had sought to deal with directly employed cleaners and clearly acknowledged that there is a gap in the modern award safety net for cleaners. UV submits that this has particular relevance in South Australia, Queensland, New South Wales and Tasmania. In these States most directly employed cleaners were previously covered by common rule awards of the respective State Tribunals.
[14] UV notes that the Award Modernisation Full Bench of the Australian Industrial Relations Commission (Modernisation Full Bench) decided that the Cleaning Services Award would not apply beyond the contract cleaning industry. The possibly unforeseen consequence of that decision is that there is no modern award which covers many general cleaners previously covered by the common rule awards. UV submits that there is a need to fill this gap.
[15] UV contends that the gap was identified to the union in correspondence from FWA in the context of a Wage Assessment Agreement made under the supported wage system, Exhibit United Voice 1 (access to which is restricted for privacy reasons). The assessor was unable to assess the employee under the Manufacturing Award as it did not cover cleaners unless ancillary to a role covered by the award. The union submits that this gap is the anomaly identified by it for the purposes of the application.
[16] The application seeks that the general cleaner classification and minimum rate be set at the C12 level of the classification structure and rates of pay. That would provide a minimum rate of $648.00 per week which is comparable to the rate of the Building Attendant Grade 1 in the Cleaning Services Award of $647.80 per week. It also equates to the “cleaner” rates in the common rule awards referred to earlier.
[17] UV submits that the entry level which it seeks is supported by the history of wage fixation in State and Federal jurisdictions. It details that history from the 1989 National Wage Case through proceedings in 1990 in the Victorian Industrial Relations Commission where the base rate for cleaning employees was fixed at 87.4% of the tradesperson rate. This rate was influenced by rates which had been approved in relation to separate matters concerning a New South Wales award and an ACT award.
[18] UV submits that its application meets the modern awards objective. It also meets the minimum wages objective which requires that a safety net of fair minimum wages be established and maintained. UV submits that, to the extent that the proposed variations might involve costs to employers, this can be addressed by a phasing-in process.
[19] The application is generally supported by the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU), the Construction, Forestry, Mining and Energy Union (CFMEU), The Australian Workers’ Union (AWU) and the NUW. It is opposed by AIG, Australian Business Industrial (ABI) and the Australian Federation of Employers and Industries (AFEI).
[20] AIG notes that, where applications are made in respect of Item 6(2)(a) of the TPCA Act, there needs to be an evidence-based inquiry. It submits that adequate evidence is also required where applications brought under Item 6(2)(b) seek to do more than address an anomaly which is clear on its face.
[21] UV’s application is one which requires proper evidence and the union has failed in its obligations in this regard. The only evidence produced, Exhibit United Voice 1, is no more than one example of a potential gap in relation to one employer which may be covered by the Manufacturing Award. This is an insufficient evidentiary case.
[22] AIG submits that the 2012 Review Full Bench decision referred to earlier stands for four key principles: the importance of section 138 and the requirement that an applicant establish that a variation is necessary to achieve the modern awards objective; the need for there to be cogent reasons to depart from a matter dealt with in the modernisation process; the presumption that awards made under that process already meet the modern awards objective; and, the importance of that process as historical context.
[23] AIG submits that the UV application does not establish that there is any anomaly which has arisen out of the award modernisation process. There is no gap because of the operation of the Miscellaneous Award 2010 which covers some or all of the employees identified by UV. The fact that UV is dissatisfied with the terms of the Miscellaneous Award is not to the point.
[24] Further, to the extent that there is any gap which is a consequence of the modernisation process, that is the deliberate outcome of adopting the Metal, Engineering and Associated Industries Award 1998 (the Metals Award) as the model for the Manufacturing Award. The Metals Award and its predecessors excluded cleaning work, other than factory cleaning, from its coverage. This long industrial history of such an exemption should not be disturbed.
[25] AIG submits that, during the modernisation process, the parties, including UV’s predecessor organisation, had agreed to the continuation of the exemption, Exhibits AIG 1 and 2. AIG submits that, as no cogent reasons had been advanced to depart from this agreed position, the application should be refused. A decision of Kaufman SDP concerning the Contract Call Centres Award 2010 2 should be of guidance in this regard.
[26] AIG also submits that UV’s application does not seek to vary the exemption provision so any gap would be preserved. The only practical effect would be to increase the classification level of those cleaners who are covered by the award without any work value case. Further, there is nothing to establish that the allowances which are sought have any relevance or proper basis.
[27] ABI supports AIG’s submissions. It notes the importance of properly testing claims of this kind and the need to bring evidence in support. It submits that submissions alone do not meet the requirement for serious and substantive applications.
[28] ABI submits that the proposed variation would result in an increase of $24 or 3.85% per week for cleaners. That will have a detrimental effect on employers’ finances which would be contrary to the modern awards objective set out in section 134(1)(f).
[29] ABI also submits that the present definition of cleaners in the award is sufficient. Inserting the proposed new definition of “general cleaner” could cause confusion and ambiguity contrary to section 134(1)(g). Further, the work of general cleaners is not indicative of a C12 classification.
[30] ABI also opposes the insertion of the proposed allowances on the basis that the Manufacturing Award already contains industry wide allowances which apply to cleaners. Any additional allowances would only increase costs contrary to section 134(1)(f).
[31] AFEI also supports AIG’s submissions. In particular it submits that the issues were properly considered during the award modernisation process and UV has failed to provide cogent reasons or proper evidence to support a departure from the modern award. It agrees that the exclusion of directly employed cleaners, other than those engaged in factory cleaning, was a feature of the Metals Award. A sufficient evidentiary case is required to move from that position.
[32] In reply UV disagreed with AIG’s proposition that general cleaning had been excluded from the modern award by agreement. It submits that it had only agreed that the award should not cover “contract cleaning” not cleaning in general. It noted that the Manufacturing Award had been made before the Cleaning Services Award and at a time when the coverage of the latter award was still undetermined. In hindsight it may have been more appropriate for the union to have raised the issue in December 2009 or January 2010 however it would be unreasonable to permit the anomaly to perpetuate.
[33] UV will consider any change to the exclusion clause.
[34] I accept that there may be a question in relation to directly employed cleaners who are not engaged in factory cleaning. I also accept that there may not have been agreement between the parties during the modernisation negotiating process that these employees should be exempted from the coverage of the Manufacturing Award. However I am not satisfied that UV has provided a sufficiently substantive case to grant its application at this time. In my view in the light of the nature of the application, proper evidence of the extent of the gap or anomaly, if any, would be required. Exhibit United Voice 1, without more, is not sufficient.
[35] The application is dismissed.
2. Application by AIG (AM2012/76)
[36] In this application AIG seeks to insert the words “involving a change of residence” after the words “transfer permanently from the employee’s usual workplace” into clause 32.4(d) of the Manufacturing Award.
[37] AIG submits that the existing wording has caused confusion and uncertainty. The title and final sentence of the provision indicate that it applies only where there is a change of residence, however, the absence of such a reference in the first sentence has created difficulties.
[38] The clause is a simplified version of clause 5.9.4(a) of the Metals Award. The negotiating parties had not intended to change the interpretation of that provision, however, the wording adopted in the Manufacturing Award has led to the confusion.
[39] AIG submits that the proposed variation comes within the category of anomalies or technical problems which don’t require any evidence in support. AIG notes that the AMWU had put forward an alternative proposal and submits that it had no objection to the adoption of that proposal rather than its own.
[40] ABI supported AIG’s application.
[41] The AMWU agrees that the text of clause 32.4(d) of the Manufacturing Award could convey a different meaning to that of clause 5.9.4(a) of the Metals Award. It also agrees that there was no intention to change the entitlement in that earlier provision when the modern award was made. However the union is concerned that AIG’s proposed variation may still leave room for different interpretations of the clause. It proposes that the wording of clause 5.9.4(a) of the Metals Award be reinstated.
[42] The CFMEU, AWU, NUW and UV each support the AMWU’s position.
[43] I am satisfied that clause 32.4(d) of the Manufacturing Award contains an anomaly or technical problem which has arisen as a result of the award modernisation process and which is preventing the effective operation of the Award. In the circumstances I consider that the most appropriate step to remedy this issue is to adopt the AMWU’s proposal.
[44] Clause 32.4(d) will be deleted and replaced by the following which reproduces clause 5.9.4(a) of the Metals Award:
“(d) Transfer involving change of residence
An employee
involving a change in residence will be paid travelling time whilst necessarily travelling between such localities and expenses for a period not exceeding three months or in cases where the employee is in the process of buying a place of residence in the new locality for a period not exceeding six months. Provided that such expenses will cease after the employee has taken up permanent residence or abode at the new location.”
[45] I will make the determination to that effect.
3. Application by NUW (AM2012/78)
[46] The NUW seeks to vary the Manufacturing Award in respect of two issues, meal breaks and rest breaks. First, the application proposes the insertion of an additional sentence into each of clauses 36.2(c) and 36.4(c). These would have the effect of providing a minimum 30 minute meal break for day workers and a minimum 20 minute meal break for non-continuous shift workers. The second part of the application would extend to all employees the entitlement to a 10 minute paid morning tea rest period in clause 38.6 which is presently restricted to particular groups of employees.
[47] The NUW submits that several sections of the Act are of particular relevance to its application. These include sections 134, 136-139, 150-155, 577 and 578. The union notes that its proposed variations are permitted by the legislation and are necessary to achieve the modern awards objective. In particular the variations are necessary to provide a fair and relevant minimum safety net taking into account the need to promote flexible modern work practices, efficient and productive performance of work and the principle of equal remuneration for work of equal or comparable value.
[48] The union also notes the statement of the 2012 Review Full Bench as to the broad discretion available to FWA to remedy issues identified in the review. Paragraphs 28 to 34 of the decision are of particular importance.
[49] The NUW submits that both clause 36.2(c) and 36.4(c) of the award contemplate the provision of a meal break but do not indicate its length. The union refers to the list of awards which were replaced by the Manufacturing Award and notes that, although not all of those instruments provided for meal breaks, the ones that did so provided for a minimum of 30 minutes for day workers and 20 minutes for non-continuous shift workers. Particular reference is made to the Rubber, Plastic and Cable Making Industry - General Award 1998 (the Rubber Award).
[50] The union notes that section 607 of the Workplace Relations Act 1996 (WR Act) had recognised a 30 minute meal break as a minimum entitlement. The union also notes that 107 of the 122 modern awards provide for a meal break of at least 30 minutes. It submits that defining the minimum meal break would provide clarity and remove ambiguity.
[51] The NUW submits that extending the paid 10 minute rest period to all employees covered by the Manufacturing Award would ensure a fair and equitable set of standards for the industry. There is no evidence to explain why the entitlement should be restricted to technical and other like employees. The union notes that many pre-reform awards including the Rubber Award provided a 10 minute rest period for all employees. It submits that such a provision is a common standard across the industry.
[52] The application is supported by the AMWU, CFMEU and AWU. In particular the AMWU notes that the Manufacturing Award contemplates that a meal break will be taken. It submits that the absence of a defined minimum break could lead to the break not being given where there is a lack of familiarity with the terms of the award.
[53] Further, the AMWU submits that a defined minimum break is necessary to provide the base for individual flexibility agreements under the award as well as the safety net. It would also establish the standard award condition to which the facilitative provisions could be applied. The AMWU notes that the absence of the provision of a defined meal break in modern awards is generally reserved for those instruments which cover professional employees.
[54] The AMWU notes AIG’s submission about reduced flexibility however submits that flexibility must be balanced with fair minimum conditions. The union notes that, although the Metals Award was the principal award used for the making of the Manufacturing Award it was never intended to cover the field. This is evidenced by the draft award which was prepared by the parties as a joint negotiating document, Exhibit AIG3. Particular reference is made to Division 7 of Part 2 as well as Parts 3, 4 and 5 of that draft each of which relates to different industry sectors and occupations.
[55] The AMWU rejects AIG’s submission that a 30 minute minimum break is contrary to the modern awards objective as it is contained in 107 of those awards which clearly meet that objective. Indeed, the provision of such a defined break will assist the Manufacturing Award to meet the objective.
[56] The AMWU also supports the extension of the 10 minute rest break to all employees covered by the award. It notes that the Metals Industry Award 1984 contained such a break albeit one which was restricted to female employees. The provision was removed during the award simplification process because it was considered discriminatory.
[57] The AMWU notes that a similar “time provision” is contained in the Graphic Arts Printing and Publishing Award 2010 (Graphic Arts Award). That provision followed on from clause 6.7 of the predecessor award which was a modified version of the rest break provision in the 1995 award. The AMWU submits that the observations of SDP Marsh during the award simplification process are apposite.
[58] The AMWU submits that adopting the NUW’s proposal or, alternatively, a similar provision to the “time provision” in the Graphic Arts Award would ensure that the Manufacturing Award meets the modern awards objective and ensure that the award provides a proper safety net for all employees covered by it. It submits that there is nothing to support the restriction of the rest period to particular groups of employees.
[59] The NUW application is opposed by AIG, ABI and AFEI. AIG notes that the application seeks to make fundamental changes to the award safety net and submits that, in order to be accepted, it requires evidence and cogent reasons to support it. None has been provided and this should weigh against the NUW. AIG submits that the meal break variation would lead to a loss of flexibility in the workplace and, consequently, would be contrary to the modern awards objective. It rejects the union submissions that the objective would be met by granting the application.
[60] AIG agrees that the parties had an initial preference for terms and conditions for different sectors to be separately recognised in the new award, Exhibit AIG3. It submits however that the position changed during the modernisation process as the parties accepted the decision of the tribunal to rationalise the different terms and conditions. Particular reference is made to the Statement of the Modernisation Full Bench which related to the publishing of the exposure draft for the award 3.
[61] AIG submits that, during subsequent negotiations, the parties, including the NUW, agreed that the Metals Award would provide the base for the new modern award. That agreement recognised that there would be “swings and roundabouts” for those covered by the award. It submits that the NUW is now “cherry picking” to regain old provisions.
[62] AIG submits that the presence of the minimum meal break provisions in the Rubber Award is no basis for suggesting that they should form part of the modern award safety net. The factors which are relevant to consider are those set out in section 134. AIG notes that the entitlement to a 30 minute meal break in section 607 of the WR Act applied to non-award employees only and is not relevant for the purposes of establishing an award safety net.
[63] AIG submits that extending the 10 minute rest break would result in massive cost and disruption to the industry. It notes that the vast majority of employees covered by the award are not entitled to the break. The variation would also be contrary to that part of the modern awards objective set out in section 134(1)(d).
[64] AIG strongly disagrees that the provision of the rest break will ensure a guaranteed safety net. It notes that the Modernisation Full Bench specifically included the rest break for particular groups of employees because it was an industry standard for those employees 4. It was not an industry standard for other employees. AIG notes that it is not the role of those opposing the application to explain why the restriction should remain but for the applicant to demonstrate why it should be removed.
[65] AIG submits that the AMWU’s arguments in support of the application should not be accepted. AIG is not aware of any evidence that meal breaks are not being taken. AIG submits that the existing provisions have operated effectively for a long time in respect of both of the modern award and the Metals Award. AIG submits that the AMWU’s arguments about the graphic arts industry is not relevant to the manufacturing industry. No evidence has been adduced to demonstrate that cogent reasons exist to depart from the decision of the Modernisation Full Bench to make the Manufacturing Award without a “time provision” or that this is an anomaly or technical problem arising from the modernisation process.
[66] Both ABI and AFEI support AIG’s submissions. They are critical of the absence of any evidence from the NUW to support the application.
[67] In reply the AMWU submits that the matter of meal breaks was not raised before the Modernisation Full Bench. That is a cogent reason for granting the proposed variation. Further, the union notes that a range of provisions which had not been in the Metals Award are preserved in the Manufacturing Award.
[68] I am not satisfied that the NUW and those organisations which support it have made out a proper and substantive case for these variations to be made.
[69] The fact that a defined minimum meal break is included in most modern awards does not of itself mean that it should be in all of them nor is its absence an anomaly. There has been no evidence bought before me to suggest that employees covered by the Manufacturing Award are not being provided with appropriate meal breaks. The absence of any such evidence and the potential loss of flexibility in the award if the meal break variations are made tell against the claim.
[70] The Modernisation Full Bench specifically noted that a clause providing for a morning tea rest period for certain employees was being included in the modern award as it was the prevailing industry standard for those employees. That is the present clause 38.6. The comments of the Full Bench tend to suggest that the provision was not an industry standard for other groups.
[71] Further, it is the responsibility of those who seek to have the variations made to satisfy me of the need for them, not for those opposing the application to justify the present clause. I am not satisfied that the NUW has made out its case. Neither am I satisfied that the alternative proposition advanced by the AMWU should be accepted. The graphic arts and manufacturing industries are different and the respective industrial instruments have many divergent aspects. A more substantive case would be required to justify the AMWU’s proposal.
[72] I dismiss this application.
4. Application by Business SA (AM2012/262)
[73] There are two remaining limbs to this application: the deletion of the word “Proportionate” in the heading of clause 41.10; and, the insertion of the following definition of bottle merchants in clause 3.1
“Bottle merchants means businesses operating bottle yards/collection depots principally collecting bottles, cans, plastic and other packaging materials for drinks.”
[74] Business SA submits that both of the proposed variations are technical in nature and do not seek to alter the operation of the award or change present entitlements. Several supporting documents were provided in relation to each part of the application.
[75] Business SA submits that the presence of the word “Proportionate” in the heading of clause 41.10 is at odds with the contents of the clause itself as well as the way in which annual leave accrues under section 87(2) of the Act. This could lead to confusion as to an employee’s entitlement to annual leave upon termination.
[76] Business SA submits that the inclusion of the word “Proportionate” is an anomaly which occurred during the modernisation process. Its removal is necessary to achieve the modern awards objective. A recent decision of Smith DP 5 is supportive of this approach.
[77] In the second limb of its application Business SA seeks to include a definition of “bottle merchants” in the definitions clause of the award. Clause 4.9(a)(vii) includes bottle merchants among the list of industries or parts of industries which come within the meaning of manufacturing and associated industries and occupations. However, there is presently no definition of bottle merchants in the award. Business SA submits that this may create uncertainty about appropriate award coverage in particular, between the Manufacturing Award and the Waste Management Award 2010.
[78] Business SA provided detailed submissions about the history of award coverage of bottle merchants and about relevant legislation in both South Australia and the Northern Territory. It submits that the inclusion of the definition is necessary to achieve the modern awards objective as well as minimising uncertainty and removing a potential overlap in award coverage.
[79] There is no opposition to either part of this application.
[80] I am satisfied that each of the variations proposed will address an anomaly or technical problem in the award which has arisen as a consequence of the award modernisation process. I will make a determination varying the award in accordance with the application. Because “Proportionate” is the first word in the heading of clause 41.10, its deletion requires a consequent change to the heading which will now read “Leave on termination”. The new definition of “bottle merchants” will be inserted into clause 3.1 in alphabetical order.
[81] At the conclusion of the proceedings on 31 October 2012 I raised with the parties a possible error in the award which had been identified by the Modern Awards Team within FWA. Clause 4.10 identifies various products, materials and substances used in manufacturing. Clause 4.10(mm) refers to “dubbo”. It is generally agreed that this should be “dubbin”.
[82] This is clearly a technical or drafting issue which should be corrected. I will make a determination to this effect.
[83] It should be noted that there are several applications relating to the Manufacturing Award which are being dealt with by various Full Benches. The review of the award will not be finalised until those matters are dealt with.
COMMISSIONER
Appearances:
N. Swancott for United Voice
M. Mead for The Australian Industry Group
E. Masters for the National Union of Workers
A Richards (on 2 August), H Wallgren and S West (on 31 October) for Business SA
S. Taylor for “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU)
A. Borg for the Construction, Forestry, Mining and Energy Union
J Wimalaratha for Australian Federation of Employers and Industries
G. Johnston for Australian Meat Industry Council
S Haynes (on 2 August), H Lepahe (on 31 October) for Australian Business Industrial
Z Angus for The Australian Workers’ Union
Hearing details:
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Sydney, Melbourne and Adelaide
2012
August 2
October 31
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