[2012] FWAFB 6913

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Fair Work Act 2009
s.158 - Application to vary or revoke a modern award

Victorian Employers’ Chamber of Commerce and Industry

Clerical industry



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:

[4] VECCI seeks to amend the award by replacing the existing clause 11.5 with the following:

[5] VECCI also seeks that the existing clause 12.3 be replaced with the following:

[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:

[8] The modern awards objective is set out s.134:

[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:

[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]:

[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.



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:

July 19.

Printed by authority of the Commonwealth Government Printer

<Price code C, MA000002  PR527872 >