[2013] FWC 2070

[2013] FWC 2070

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FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s 160 - Application to vary a modern award to remove ambiguity or uncertainty or correct error

United Voice
(AM2013/1)

DEPUTY PRESIDENT SAMS

SYDNEY, 9 APRIL 2013

Application to vary modern award to correct ambiguity or uncertainty - new liquor licensing in South Australia - consent of parties - determination made.

[1] On 28 March 2013, I made a determination in this matter effective from that date. These are my reasons for doing so.

[2] This decision concerns an application to vary a Modern Award; namely, the Hospitality Industry (General) Award 2010 [MA000009] (the ‘Award’) filed by United Voice (the ‘Union’) on 22 February, 2013. The application is made pursuant to the provisions of the Fair Work Act 2009 (the ‘Act’) which deal with the circumstances in which the Fair Work Commission (the ‘Commission’) may vary a Modern Award. For the purposes of this application, these provisions include, where it is necessary to achieve the Modern Award objectives (s 157) and where it is necessary to remove ambiguity or uncertainty (s 160).

[3] The application arises from a discrete set of new circumstances which pertain to recent legislative changes enacted by the South Australian Parliament to create a new category of liquor license in South Australia to be known as the ‘Small Venue Licence’. The particular legislation, the Liquor Licensing (Small Venue Licence) Amendment Act 2012 (SA) was passed by the Legislative Assembly on 19 February 2013 and received Royal Assent on 28 February 2013.

[4] The Union contends that the new category of liquor licence will create uncertainty and/or ambiguity in respect to the application of Schedule B of the Award, to venues which obtain a Small Venue Licence, particularly if the venue also holds other licences. This application would ensure that all venues in South Australia which have liquor licences will be covered by the Award, subject to the Schedule B transitional provisions, which transition employees from the Hotels, Club, Etc., Award [AN150066] to the Modern Award.

[5] The variation to the Award which is sought is as follows:

‘1. That clause B.1.1 of t he Schedule B be amended as follows:

B.1.1 Clause B.3.1 of Schedule B applies throughout South Australia to employers in the hospitality industry who hold a Hotel Licence, Entertainment Venue Licence, a Small Venue Licence or a Special Circumstances Licence (including those that previously held a General Facility Licence).

2. That clause B.1.2 of Schedule B be amended as follows:

B.1.2 Clause B.3.2 of Schedule B applies throughout South Australia to employers in the hospitality industry who hold a Hotel Licence, a Small Venue Licence, a Special Circumstances Licence or a Residential Licence.’

[6] The two legislative provisions, either of which, in my view, may apply to this application are as follows:

‘157 FWC may vary etc. modern awards if necessary to achieve modern awards objective

(1) The FWC may:

(a) make a determination varying a modern award, otherwise than to vary modern award minimum wages; or

(b) make a modern award; or

if the FWC 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: The FWC 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 the FWC is setting modern award minimum wages, the minimum wages objective also applies (see section 284).

(2) The FWC may make a determination varying modern award minimum wages if the FWC 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 the FWC is varying modern award minimum wages, the minimum wages objective also applies (see section 284).

(3) The FWC may make a determination or modern award under this section:

(a) on its own initiative; or

(b) on application under section 158.

160 Variation of modern award to remove ambiguity or uncertainty or correct error

(1) The FWC may make a determination varying a modern award to remove an ambiguity or uncertainty or to correct an error.

(2) The FWC may make the determination:

(a) on its own initiative; or

(b) on application by an employer, employee, organisation or outworker entity that is covered by the modern award; or

(c) on application by an organisation that is entitled to represent the industrial interests of one or more employers or employees that are covered by the modern award; or

(d) if the modern award includes outworker terms—on application by an organisation that is entitled to represent the industrial interests of one or more outworkers to whom the outworker terms relate.’

[7] The notification and processing of this application has been in accordance with the Commission’s Modern Award practices and principles. I am satisfied that all interested parties are aware of the application and the hearing date of 28 March 2013. I am further satisfied that the application is competently before the Commission.

[8] At the hearing, Ms L Harrison represented the Union, Mr H Wallgren appeared for Business SA and Mr T Evans appeared for the Australian Hotels Association (SA). I note that the employer parties do not oppose the application.

[9] Given the consent of the parties and the circumstances giving rise to the application (which were unknown at the time of the making of the Modern Award) and the desirability of removing any ambiguity or uncertainty about the Award’s application to an individual small venue license holder, I propose to made a determination to give effect to the variation of Schedule B of the Award in terms set out at para [5] of this decision.

[10] Even if I am wrong about the applicability of s 160 of the Act to this application, I also consider the variation would achieve the Modern Award objectives, pursuant to s 152 of the Act. A determination to the above effect will be published contemporaneously with this decision.

DEPUTY PRESIDENT

Appearances:

Ms L Harrison, United Voice

Mr H Wallgren, Business SA

Mr T Evans, Australian Hotels Association

Hearing details:

2013

Sydney:

28 March

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