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
Sarin Marine Farming Pty Ltd on behalf of the National Aquacultural Council Modern Award Reference Group
(AM2012/15)
Tassal Operations Pty Ltd on behalf of the National Aquacultural Council Modern Award Reference Group
(AM2012/16)
AQUACULTURE INDUSTRY AWARD 2010
(ODN AM2008/65)
[MA000114 PR991081]
Aquaculture
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COMMISSIONER ROBERTS
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SYDNEY, 12 JULY 2013
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Review of the Aquaculture Industry Award 2010.
[1] This decision concerns separate applications by Sarin Marine Farming Pty Ltd (Sarin) and Tassal Operations Pty Ltd (Tassal). Both applications were made on behalf of the National Aquacultural Council Modern Award Reference Group: Tassal Operations Pty Ltd; Pacific Reef Pty Ltd; Huon Aquaculture Company Pty Ltd; Australian Prawn Farmers Association; Salmon Growers Association (Tas) and Austuna (Tuna Farming), to vary the Aquaculture Industry Award 2010 (the Award). The applications are made under Schedule 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 which Fair Work Australia (now the Fair Work Commission) is required to conduct after the first two years of those modern awards coming into effect (the 2012 Review).
[2] Both applications were listed for mention and programming on 14 August 2012 and this was followed by numerous conferences between the Commission and the parties and between the parties themselves which lasted until on or about 1 July 2013. As a result of those conferences, the parties have been able to reach a consent position.
[3] Sarin and Tassal were represented by Mr F McMahon. Ms Z Angus appeared for the Australian Workers’ Union (the AWU). In addition, appearances were entered by Mr B Jeffriess of Sarin, Ms K Little of Tassal Group Limited, Ms V Hinton of Business SA and Ms G Kusuma of NSW Farmers (Industrial) Association.
The legislation
[4] Schedule 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).”
[5] Provisions of the Fair Work Act 2009 (the Act) are also applicable and relevant to the 2012 Review. Sections 134 and 138 of the Act 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] On 29 June 2012, the 2012 Review Full Bench published 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. “
[7] The Full Bench went on to say:
“[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]
[8] 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.”
[9] I now turn to consideration of each of the two applications.
Application by Sarin
[10] Sarin’s application was made on behalf of the National Aquacultural Council Modern Award Reference Group and sought to insert a new subclause in the Award in the following terms:
“15.4 Travel time and allowance
(a) An employee who on any day or from day to day is required to work at a workplace away from the usual workplace will, at the direction of the employer, present for work at such workplace at the usual starting time; but all time reasonably spent in reaching and returning from such workplace (in excess of the time normally spent in travelling from the employee’s home to their usual workplace and returning) will be paid at ordinary rates of pay.
(b) Where an employee is required to remain away from their usual place of residence; the employee will be paid for all expenses reasonably incurred while so absent.
(c) Where an employee, with the approval of the employer, is required to use a private motor vehicle, the employee will be paid $0.74 per kilometre travelled.
Travelling-local
(d) When a fish fari.nis so remote from the shore that some means of conveyance between the shore and the farm is necessary to enable an employee to pass from one to the other before starting or after finishing work upon the farm at the due time for starting and finishing work, the time occupied by the employee before the due time for starting and/or after the due time for finishing work in travelling or in necessarily waiting for such means of conveyance will be paid for at ordinary rates with a minimum payment of 30 minutes, but will not count as part of the daily working time.
(e) When an employee, who in the ordinary course of their·employment begins work for the day at a particular place, is required to finish work at a place other than that particular place, the employee will be paid any reasonable travelling expense incurred in returning home in excess of their ordinary travelling expenses and will also be paid at ordinary rates of pay for any travelling time occasioned beyond their ordinary travelling time.
(f) An employee will be paid $11.30 per day for excess fares incurred on any day upon which the employee is directed to work.
(g) The provisions of this clause will not apply to employees who are required by the employer to live on the farm.”
Application by Tassal
[11] Tassal’s application sought to delete the existing clause 19 of the Award and replace it with the following:
“19 Ordinary hours of work and rostering
19.1 Maximum weekly hours and requests for flexible working arrangements are provided for in the NES.
19.2 Ordinary hours of work-day workers
(a) Subject to clause 19.5, the ordinary hours of work for a day worker are an average of 38 per week but not exceeding 152 hours in 28 days.
(b) The ordinary hours of work may be worked on any day or all of the days of the week, Monday to Sunday, provided that a day worker must not be required to work more than five and a half days of ordinary hours in a week. The days on which ordinary hours are worked may include Sunday subject to agreement between the employer and the majority of employees concerned. Agreement in this respect may also be reached between the employer and an individual employee.
(c) The ordinary hours of work are to be worked continuously, except for meal breaks, at the discretion of the employer between 5.00 am and 7.00 pm. The spread of hours (5.00 am to 7.00 pm) may be altered by up to one hour at either end of the spread, by agreement between an employer and the majority of employees concerned or, in appropriate circumstances, between the employer and an individual employee.
(d) Any work performed outside the spread of hours must be paid for at overtime rates. However, any work performed by an employee prior to the spread of hours which is continuous with ordinary hours for the purpose, for example, of getting the plant in a state of readiness for production work is to be regarded as part of the 38 ordinary hours of work.
(e) The rate to be paid to a day worker for ordinary time worked on a Saturday is time and a quarter.
(f) Where agreement is reached in accordance with clause 19.2(b), the rate to be paid to a day worker for ordinary time worked between midnight on Saturday and midnight on Sunday is time and a half.
(g) A day worker required to work on a public holiday must be paid for a minimum of three hours’ work at the rate of 250%. The 250% rate must be paid to the employee until the employee is relieved from duty.
19.3 Ordinary hours of work - continuous shiftworkers
(a) Continuous shiftwork means work carried on with consecutive shifts of employees throughout the 24 hours of each of at least six consecutive days without interruption except for breakdowns or meal breaks or due to unavoidable causes beyond the control of the employer.
(b) Subject to clause 19.3(c), the ordinary hours of work for a continuous shiftworker are, at the discretion of the employer, to average 38 hours per week inclusive of meal breaks and must not exceed 152 hours in 28 consecutive days. A continuous shiftworker is entitled to a 20 minute meal break on each shift which must be counted as time worked.
(c) By agreement between the employer and the majority of employees concerned, a roster system may operate on the basis that the weekly average of 38 ordinary hours is achieved over a period which exceeds 28 consecutive days but does not exceed 12 months.
(d) Except at the regular changeover of shifts, an employee must not be required to work more than one shift in each 24 hours.
19.4 Ordinary hours of work-non-continuous shiftworkers
(a) Subject to clause 19.4(b), the ordinary hours of work for a non-continuous shiftworker are an average of38 per week and must not exceed 152 hours in 28 consecutive days.
(b) By agreement between the employer and the majority of employees concerned, a roster system may operate on the basis that the weekly average of 38 ordinary hours is achieved over a period which exceeds 28 consecutive days but does not exceed 12 months.
(c) The ordinary hours of work must be worked continuously, except for meal breaks, at the discretion of the employer.
(d) Except at changeover of shifts an employee must not be required to work more than one shift in each 24 hours.
19.5 Methods of arranging ordinary working hours
(a) Subject to the employer’s right to fix the daily hours of work for day workers from time to time within the spread of hours referred to in clause 19.2(c) and the employer’s right to fix the commencing and finishing time of shifts from time to time, the arrangement of ordinary working hours must be by agreement between the employer and the majority of employees in the enterprise or part of the enterprise concerned. This does not preclude the employer reaching agreement with individual employees about how their working hours are to be arranged.
(b) The matters on which agreement may be reached include:
(i) how the hours are to be averaged within a work cycle established in accordance with clauses 19.2, 19.3 and 19.4;
(ii) the duration of the work cycle for day workers provided that such duration does not exceed 12 months;
(iii) rosters which specify the starting and finishing times of working hours;
(iv) a period of notice of a rostered day off which is less than four weeks;
(v) substitution of rostered days off;
(vi) accumulation of rostered days off;
(vii) arrangements which allow for flexibility in relation to the taking of rostered days off; and
(viii) any arrangements of ordinary hours which exceed eight hours in any day but not exceeding 12 hours in a day or shift.
(c) By agreement between an employer and the majority of employees in the enterprise or part of the enterprise concerned, 12 hour days or shifts may be introduced subject to:
(i) proper health monitoring procedures being introduced;
(ii) suitable roster arrangements being made;
(iii) proper supervision being provided;
(iv) adequate breaks being provided; arid
(v) a trial or review process being jointly implemented by the employer and the employees or their representatives.
(d) Where an employee works on a shift other than a rostered shift, the employee must:
(i) if employed on continuous work, be paid at the rate· of 200%; or
(ii) if employed on other shiftwork, be paid at the rate of 150% for the first three hours and 200% thereafter.
(e) Clause 19.5(d) does not apply when the time is worked:
(i) by arrangement between the employees themselves;
(ii) for the purposes of effecting the customary rotation of shifts; or
(iii) on a shift to which the employee is transferred on short notice as an alternative to standing the employee off in circumstances which would entitle the employer to deduct payment in accordance with Part 3-5 of the Act.”
[12] Tassal also sought to insert a new clause 20 into the Award in the following terms:
20.1 · For the purposes of this award:
(a) rostered shift means any shift of which the employee concerned has had at least 48 hours’ notice;
(b) afternoon shift means any shift finishing after 6.00 pm and at or before midnight; and ·
(c) night shift means any shift finishing after midnight and at or before 8.00 am.
20.2 By agreement between the employer and the majority of employees concerned or in appropriate cases an individual employee, the span of hours over which shifts may be worked may be altered by up to one hour at either end of the span.
20.3 Afternoon and night shift allowances
(a) An employee who works on afternoon or night shift must be paid 15% extra for such shift.
(b) An employee who works on an afternoon or night, shift which does not continue:
(i) for at least five successive afternoon or night shifts or six successive afternoon or night shifts in a six day enterprise (where no more than eight ordinary hours are worked on each shift); or
(ii) for at least 38 ordinary hours (whermore than eight ordinary hours are worked on each shift and the shift arrangement is in accordance with clauses 19.3 or 19.4);
must be paid for each shift 50% extra for the first three hours and 100% extra for the remaining hours. ·
(c) An employee who:
(iii) during a period of engagement on shift, works night shift only; or
(iv) remains on night shift for a longer period than four consecutive weeks;
or
(v) works on a night shift which does not rotate or alternate with another shift or with day work so as to give the employee at least one third of their working time off night shift in each shift cycle;
must, during such engagement, period or cycle, be paid 30% extra for all time worked during ordinary working hours on such night shift.
20.4 Rate for working on Saturday shifts
The rate at which a shiftworker must be paid for work performed between midnight on Friday and midnight on Saturday is 150%. The extra rate is in substitution for and not cumulative upon the shift allowances prescribed in clause 20.3.
20.5 Rate for working on Sunday and public holiday shifts
(a) The rate at which a continuous shiftworker must be paid for work on a rostered shift the major portion of which is performed on a Sunday or public holiday is 200%.
(b) The rate at which a shiftworker, on other·than continuous shiftwork, must be paid for all time worked on a Sunday is 200% and on a public holiday is 250%.
(c) Where shifts commence between 11.00 pm and midnight on a Sunday or public holiday, the time so worked before midnight does not entitle the employee to the Sunday or public holiday rate for the shift. However, the time worked by an employee on a shift commencing before midnight on the day preceding a Sunday or public holiday and extending into the Sunday or public·holiday must be regarded as time worked on the Sunday or public holiday.
(d) Where shifts fall partly on a public holiday, the shift which has the major portion falling on the public holiday must be regarded as the public holiday shift. By agreement between the employer and the majority of employees concerned, the shift which has the minor portion falling on the public holiday may be regarded as the public holiday shift instead.
(e) The extra rates in clause 20.5 are in substitution for and not cumulative upon the shift allowances prescribed in clause 20.3.”
Conclusion
[13] Having examined the consent variations submitted by the parties, and having had the benefit of being apprised of the various stages in the negotiations between the parties, I am satisfied that the consent variations sought by the parties to vary the Award are consistent with the Modern Award objective and I will issue a determination in the terms sought.
[14] That Determination is contained in PR538859.
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