[2013] FWC 2482 |
FAIR WORK COMMISSION |
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
United Voice
(AM2012/30)
Corrections and detentions | |
COMMISSIONER ROE |
SYDNEY, 24 APRIL 2013 |
Modern Awards Review 2012 - application to vary the Corrections and Detention (Private Sector) Award 2010.
Introduction
[1] This decision concerns an application by United Voice (UV) to vary the Corrections and Detention (Private Sector) Award 2010 1 (the Award). The application is made under Sch. 5, Item 6 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the Transitional Act) as part of the review of all modern awards of which Fair Work Australia is required to conduct after the first two years of all modern awards coming into effect (the 2012 Review).
[2] The matter was listed for Mention/Directions on 22 January and 7 February 2013. The following Directions were issued on 7 February 2013:
“1. Any party who opposes the inclusion of classifications and wage rates for catering employees who are direct employees of employers covered by the Award is to advise the Applicant, United Voice, and the Fair Work Commission by 18 February 2013 and to include in that advice an indication of the reasons for opposition.
2. In the event that there is no response indicating opposition United Voice is to provide an outline of submissions and any material upon which it relies by 27 February 2013.
3. Any material by any party in response is to be provided by 8 March 2013.
4. The matter will be listed for hearing at 9.30am on 18 March 2013.
5. In the event that there is a response indicating opposition to the inclusion of classifications and wage rates for catering employees who are direct employees of employers covered by the Award then a conciliation conference may be held and revised directions issued.”
[3] I ensured that the main employers in the industry were directly advised.
[4] Following the hearing on 18 March 2013 I issued the following Statement:
“Arising from the hearing of this matter on 18 March 2013 I have decided that I am satisfied that classifications and wage rates for catering employees who are direct employees of employers covered by the Award should be included in the Award. I have also indicated that the variation should include the classifications definitions in D.1, D.2.1, D.2.2 and D.2.7 of the Hospitality Industry (General) Award 2010 and the corresponding rates from Clause 20 of that Award. However, there may be minor variations to exclude indicative tasks which are clearly inappropriate for the Corrections and Detentions (Private Sector) Award 2010. Consistent with this I have issued the following directions.
1. United Voice is to provide a revised draft order by Friday 5 April 2013 together with the identification of any variations from the definitions in D.1, D.2.1, D.2.2 and D.2.7 of the Hospitality Industry (General) Award 2010 and the corresponding rates from Clause 20 of that Award and the reasons for any such variations. United Voice is to provide a copy to FWC and to G4S, Serco, GEO and the CPSU.
2. Any objection to the proposed draft order is to be provided to FWC and United Voice by 12 April 2013.
3. In the event that there is no objection I will issue a decision and order in this matter. In the event that there is an objection I may relist the matter for further hearing.”
Relevant legislation
[5] Sch. 5, Item 6 of the Transitional 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).”
[6] Further provisions of 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.”
Relevant Authorities
[7] In considering this application I have had regard to the 2012 Review Full Bench decision of 29 June 2012. 2 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:
“[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.”
[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”.
Consideration
[10] By this application, United Voice seeks to make provision in the Corrections and Detention (Private Sector) Award 2010 for catering employees who are direct employees (in immigration detention facilities and/or correction facilities) of employers covered by the Award.
[11] I am satisfied that the Hospitality Industry General Award 2010 does not cover catering employees who are direct employees in immigration detention facilities and/or correction facilities of employers covered by the Award.
[12] I am satisfied that such employees were in many cases covered by the NAPSAs which were in operation prior to the creation of the Modern Award.
[13] Although some but not all employees affected by this application may be covered by the Miscellaneous Award 2010, that Award does not make adequate provision for directly-employed catering employees in corrections or immigration detention facilities, and it is appropriate that these employees have a proper safety net (including to underpin enterprise bargaining) in the modern award covering their employer's main activities.
[14] I am satisfied that it would be consistent with the modern awards objective for those employees to be covered by a modern award which includes conditions which are broadly consistent with those which apply to most catering employees, namely those which apply in the Hospitality Industry General Award 2010. I have particular regard to the appropriate regulation of hours of work and penalty rates. This objective can be achieved by the inclusion of appropriate classifications in the Award and it is not achieved by continuing and partial coverage in the Miscellaneous Award 2010.
[15] An examination of the material surrounding the making of the Award does not reveal any specific consideration of the question of the inclusion of catering employees who are direct employees of employers covered by the Award.
[16] I am satisfied that the failure to include classifications for directly employed catering employees is an anomaly or technical problem which arises from the Part 10A award modernisation process.
[17] The United Voice application sought to include classifications which modify the classifications in the Hospitality Industry General Award 2010 to reflect the outcome of the negotiations in 2011 between United Voice and Serco Australia Pty Ltd for a new enterprise agreement for employees, including directly employed catering employees, in immigration detention facilities.
[18] During proceedings I expressed the view that in order to meet the modern awards objective and to the extent necessary the minimum wages objective it may be more appropriate to more directly rely on the relevant part of the classification structure in the Hospitality Industry General Award 2010. This approach would ensure that the classifications were more likely to be applicable to all situations which might arise under the Award and not just those situations applicable to the immigration detention facilities whilst they were operated by Serco Australia Pty Ltd.
[19] Utilising the descriptors and rates from the Hospitality Industry General Award 2010 will ensure that they reflect comparable work value for the same or similar work for catering employees generally.
[20] United Voice agreed to adopt this approach and provided a revised Draft Determination. This revised Draft Determination was made available to interested parties for comment. No objection was received.
[21] The proposed classification structure includes definitions based on D.1, D2.1, D2.2 and D2.7 of the Hospitality Industry General Award 2010. I am satisfied that these are the classifications relevant to directly employed catering employees under the Award.
[22] United Voice propose to modify the definitions for Food and Beverage Attendant Grade 2 by deleting or modifying the indicative tasks relating to the following:
● supplying, dispensing or mixing of liquor including the sale of liquor from the bottle department;
● assisting in the bottle department;
● attending a snack bar.
[23] United Voice propose to modify the definitions for Food and Beverage Attendant Grade 3 by deleting the indicative tasks relating to the following:
● attending a wagering (e.g. TAB) terminal, electronic gaming terminal or similar terminal;
● full control of a cellar or liquor store (including the receipt, delivery and recording of goods within such an area);
● mixing a range of sophisticated drinks.
[24] United Voice propose to modify the definition of Food and Beverage Attendant Grade 4 by deleting the reference to “in a fine dining room or restaurant” and to “waiting”.
[25] United Voice propose to modify the definition of Food and Beverage Supervisor by deleting the reference to “a bar or series of bars”.
[26] I accept the submission of United Voice that fine dining, gaming and liquor sales and services are not applicable to immigration detention facilities, prisons and other corrections facilities. I am satisfied that the modifications proposed to the definitions are appropriate.
[27] I will grant the United Voice application as modified to insert classifications and pay rates for directly employed catering employees into the Corrections and Detention (Private Sector) Award 2010. I will make a Determination consistent with this.
COMMISSIONER
Appearances:
Mr N Swancott appeared for United Voice.
Mr R Casimir appeared for GEO Group Australia.
Hearing details:
2013
Melbourne
March 18
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