[2012] FWAFB 6913 |
FAIR WORK AUSTRALIA |
DECISION |
Fair Work Act 2009
s.158 - Application to vary or revoke a modern award
Clerical industry | |
VICE PRESIDENT LAWLER |
|
Application to vary Clause 11.5 and Clause 12.4.
[1] This is an application by the Victorian Employers’ Chamber of Commerce and Industry (VECCI) pursuant to s.157 of the Fair Work Act 2009 (FW Act) to vary the Clerks - Private Sector Award 2010 (Clerks Award) (MA000002).
[2] The application as filed sought a variation to some 80 modern awards. The President determined that the application should be dealt with by a Full Bench. Over the period since the filing of the application VECCI has progressively abandoned the applications in respect of various awards until it was only pursuing the application in relation to the Clerks Award.
[3] The application seeks amendment to clauses 11 and 12 which state:
“11. Part-time employment
11.1 A part-time employee is an employee who is engaged to perform less than the full-time hours at the workplace on a reasonably predictable basis.
11.2 Part-time employees are entitled on a pro rata basis to equivalent pay and conditions to those of full-time employees.
11.3 At the time of engagement the employer and the part-time employee will agree in writing on a regular pattern of work, specifying at least the numbers of hours worked each day, which days of the week the employee will work and the actual starting and finishing times each day.
11.4 Changes in hours may only be made by agreement in writing between the employer and employee. Changes in days can be made by the employer giving one week’s notice in advance of the changed hours.
11.5 An employer is required to roster a part-time employee for a minimum of three consecutive hours on any shift.
11.6 All time worked in excess of the hours as agreed under clause 11.3 or varied under clause 11.4 will be overtime and paid for at the rates prescribed in clause 27—Overtime rates and penalties (other than shiftworkers).
11.7 A part-time employee employed under the provisions of this clause must be paid for ordinary hours worked at the rate of 1/38th of the weekly rate prescribed for the class of work performed.
12. Casual employment
12.1 A casual employee is an employee engaged as such.
12.2 A casual employee must be paid per hour at the rate of 1/38th of the weekly rate prescribed for the class of work performed, plus 25%. This loading is instead of entitlements to leave and other matters from which casuals are excluded by the terms of this award and the NES.
12.3 Casual employees must be paid at the termination of each engagement, or weekly or fortnightly in accordance with usual payment methods for full-time employees.
12.4 Casual employees are entitled to a minimum payment of three hours’ work at the appropriate rate.”
[4] VECCI seeks to amend the award by replacing the existing clause 11.5 with the following:
“11.5 An employer is required to roster a part-time employee for a minimum of three consecutive hours on any shift. In order to meet their personal circumstances, a part-time employee may request and an employer may agree to an engagement of less than the minimum of three hours. Where such an agreement is reached between an employer and an employee the minimum payment of three hours work will not apply.”
[5] VECCI also seeks that the existing clause 12.3 be replaced with the following:
“12.3 Casual employees are entitled to a minimum payment of three hours’ work at the appropriate rate. In order to meet their personal circumstances, a casual employee may request and the employer may agree to an engagement for less than the minimum of three hours. Where such an agreement is reached between an employer and an employee the minimum payment of three hours work will not apply.”
[6] It will be observed that VECCI is not seeking the removal of the minimum engagement provision for part-time and casual employees but rather a modification of that provision to exclude its operation in circumstances where employees genuinely wish to work fewer than three hours.
[7] Section 157 of the FW Act provides:
“157 FWA may vary etc. modern awards if necessary to achieve modern awards objective
(1) FWA may:
(a) make a determination varying a modern award, otherwise than to vary modern award minimum wages; or
...
if FWA is satisfied that making the determination or modern award outside the system of 4 yearly reviews of modern awards is necessary to achieve the modern awards objective.
Note 1: FWA must be constituted by a Full Bench to make a modern award (see subsection 616(1)).
Note 2: Special criteria apply to changing coverage of modern awards or revoking modern awards (see sections 163 and 164).
Note 3: If FWA is setting modern award minimum wages, the minimum wages objective also applies (see section 284).
(2) FWA may make a determination varying modern award minimum wages if FWA is satisfied that:
(a) the variation of modern award minimum wages is justified by work value reasons; and
(b) making the determination outside the system of annual wage reviews and the system of 4 yearly reviews of modern awards is necessary to achieve the modern awards objective.
Note: As FWA is varying modern award minimum wages, the minimum wages objective also applies (see section 284).”
[8] The modern awards objective is set out s.134:
“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.
When does the modern awards objective apply?
(2) The modern awards objective applies to the performance or exercise of FWA’s modern award powers, which are:
(a) FWA’s functions or powers under this Part; and
(b) FWA’s functions or powers under Part 2-6, so far as they relate to modern award minimum wages.
Note: FWA must also take into account the objects of this Act and any other applicable provisions. For example, if FWA is setting, varying or revoking modern award minimum wages, the minimum wages objective also applies (see section 284).”
[9] The scheme of the FW Act in relation to the variation of modern awards is one that provides for a four yearly review of the modern awards (and in the case of the first review after only two years in 2012) with only a limited capacity to effect variation between such reviews.
[10] The language of s.157(1) makes it clear that the capacity for Fair Work Australia to vary modern awards “outside the system of four yearly reviews” is limited and such a variation must be “necessary to achieve the modern awards objective” of providing “a fair and relevant minimum safety net of terms and conditions” by reference to the matters specified in s.134(1). In our view the word “necessary” should be given its ordinary English meaning and it is necessary for an applicant who wishes to achieve a variation outside the system of four yearly reviews to demonstrate that the modern awards objective is not being achieved in a particular fashion such that the variation sought can properly be said to be necessary for the modern awards objective to be met. In National Retailers Association (2010) 199 IR 258 at [23] the Full Bench counselled against substituting synonyms for the words of the statutory test:
“[23] In our view synonyms such as exceptional, indispensable and requisite and the compound phrase “exceptional circumstances” are of limited value and their use is likely to lead to confusion. While synonyms might in some circumstances assist in the construction of statutes, they ought not to be substituted for the words that the legislature has used. The Vice President did not do so. Nor is there any indication that the Vice President misapplied the correct test. We reject the submission based on statutory construction. The decision is based squarely on proper evidentiary considerations rather than on too narrow a view of the discretion available to him under s. 157(1).”
[11] VECCI, in contending that the modern award’s objective is not being met in relation to the Clerks Award, places particularly reference on the matters specified in s.134. It will be noted that the matters specified in paragraphs (a)-(h) of s.134(1) are matters that FWA must take into account when considering whether a particular modern award that is the subject of a variation application, taken together with the National Employment Standards, provides a “fair and minimum relevant minimum safety net of terms and conditions”.
[12] The Award Modernisation Full Bench of the Australian Industrial Relations Commission (AIRC) did not address the question of minimum engagements in any of its decisions and statements made in connection with the award modernisation process. This is because minimum engagements did not emerge as a significant issue during that process. Minimum periods of engagement have been a common feature of State and Federal awards for a very long period. The rationale for minimum periods of engagement is one of protecting employees from unfair prejudice or exploitation. Given the time and monetary cost typically involved in an employee getting to and from work, it has long been recognised that employees, especially casual employees, can be significantly prejudiced if a shift is truncated by the employer on short notice (as would otherwise be lawful in a typical casual engagement) or the employee can be pressured into accepting unviable short shifts in order to retain access to longer shifts. The inclusion of a minimum engagement period in a modern award invariably reflected the fact that such provisions were to be found in a sufficient proportion of the pre-reform awards and NAPSAs that are operated within the coverage of the modern award.
[13] In National Retail Association Limited (2010) 199 IR 258) a Full Bench upheld a decision of Vice President Watson rejecting an application under s.157(1) on the basis that there was insufficient evidence to establish that the variation sought was necessary to achieve the modern awards objective.
[14] That is also the case with the evidence here. Although the rules of evidence do not apply to Fair Work Australia that means only that there is less constraint on Fair Work Australia, than exists in the Courts, on the range of evidence that it may admit. The Tribunal nevertheless requires evidence (or uncontested submission - R v Commonwealth Conciliation and Arbitration Commission and Others; Ex parte The Melbourne and Metropolitan Tramways Board (1965) 113 CLR 228 at 243 (per Barwick CJ) and 252 (per Menzies J)) sufficient to allow it to make any jurisdictional findings that condition the exercise of power sought in the originating application.
[15] In this case the evidence, as distinct from submission, relied upon by VECCI is limited and essentially consists of a subset of a series of witness statements filed by VECCI in October 2010 at a time when the application was still proceeding in respect of a large number of modern awards. In particular, VECCI relies upon 20 identified statements annexed to its submissions of 8 October 2010 (Exhibit VECCI 1 Appendices 3, 7, 14, 17-21, 23, 26, 28, 31, 36, 40, 43, 47-48, 51-53). VECCI also relies upon paragraphs 32 and 33 of Exhibit VECCI 3 being Submissions in Reply and some statistical data produced by the Bureau of Statistics which establishes, perhaps uncontroversially, that females are disproportionately represented amongst part-time employees and casual employees who work only a relatively small number of hours.
[16] The statements relied upon by VECCI are all statements prepared by employers who are a small, effectively self-selecting sample. This material lacks any of the statistical rigour of a properly designed and conducted survey. It represents little more than 20 employers saying that they think the change is a good idea and would be beneficial to them in their business. There were no statements from employees going to the impact of the proposed variation on employees or the attitudes of employees. There was no reliable survey evidence. There was no expert evidence. This is not to say that such evidence will invariably be necessary. However, some of the criteria in s.134(1) we think naturally lend themselves to that sort of evidence.
[17] We think it relevant that the Clerks Award 2010, like the other modern awards, was made as a result of the extensive modern award process conducted by the AIRC pursuant to Part 10A of the Workplace Relations Act 1996 which process was only concluded at the end of 2009. The Award Modernisation Full Bench must be taken to have been satisfied that the existing minimum hours provisions were an appropriate part of the safety net and satisfied the modern awards objective, a view since confirmed by the Full Bench in the Modern Awards Review 2012 [2012] FWAFB 5600 where the Full Bench said, at [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.”
[18] There is nothing in the evidence relied upon by VECCI that demonstrates any change of circumstances since the beginning of 2010 that disturbs that position in such a way that the proposed variation can properly be found to be “necessary to achieve the modern awards objective”.
[19] We are not satisfied that the evidence brought by VECCI is anywhere near sufficient to establish the jurisdictional precondition in s.157(1) that the variation that it seeks to the Clerks Aware 2010 is “necessary to achieve the modern awards objective” (as distinct from, say, an arguably desirable adjustment considered in the light of contemporary circumstances). In those circumstances, we are obliged to dismiss the application and do so.
VICE PRESIDENT
Appearances:
M McKenney, of Counsel, with A Marriott for the Victorian Employers’ Chamber of Commerce and Industry.
J Nucifora for the Australian Municipal, Administrative, Clerical and Services Union.
Hearing details:
2011.
Melbourne:
July 19.
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