[2013] FWC 4671 |
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
Chamber of Commerce & Industry of Western Australia
(AM2012/258)
Funeral directing | |
COMMISSIONER LEE |
MELBOURNE, 16 JULY 2013 |
Modern Award Review 2012 - Application to vary clause 10.5.
Introduction
[1] This decision concerns an application by the Chamber of Commerce & Industry of Western Australia to vary the Funeral Industry 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 which the Fair Work Commission is required to conduct after the first two years of all modern awards coming into effect (the 2012 Review).
The relevant legislation
[2] 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).”
[3] Further provisions of the Act are also applicable and relevant to the 2012 Review. Section 134 provides as follows:
“134 The modern awards objective
What is the modern awards objective?
(1) FWC 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.”
[4] Section 284 provides as follows:
“284 The minimum wages objective
What is the minimum wages objective?
(1) FWC must establish and maintain a safety net of fair minimum wages, taking into account:
(a) the performance and competitiveness of the national economy, including productivity, business competitiveness and viability, inflation and employment growth; and
(b) promoting social inclusion through increased workforce participation; and
(c) relative living standards and the needs of the low paid; and
(d) the principle of equal remuneration for work of equal or comparable value; and
(e) providing a comprehensive range of fair minimum wages to junior employees, employees to whom training arrangements apply and employees with a disability.
This is the minimum wages objective.”
Decision
[5] On 20 June 2013, I issued a Statement and Directions which summarised the history of this application. A variation to clause 10.5 of the award was agreed between the applicant, the Chamber of Commerce & Industry of Western Australia, and the Australian Workers’ Union. I indicated in the Statement and Directions that I had formed the preliminary view it was appropriate to approve the amended variation sought.
[6] An opportunity was afforded to allow for any objections to the variations to be made by 4 July 2013. No objections were submitted in relation to the proposed approval of the amended variation sought by the Chamber of Commerce and Industry of Western Australia.
[7] I am satisfied that the proposed variation is consistent with the requirements of the modern award review as set out above.
The determination
[8] I will make a determination in the terms sought in the application.
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