[2013] FWC 5549 |
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
Shop, Distributive and Allied Employees Association
(AM2012/206)
Mannequins and modelling industry | |
COMMISSIONER LEWIN |
MELBOURNE, 13 AUGUST 2013 |
Modern Awards Review 2012 - application to vary the Mannequins and Models Award 2010.
Introduction
[1] This decision concerns an application lodged on 8 March 2012, by the Shop, Distributive and Allied Employees Association (006N) to vary the Mannequins and Models Award 20101 (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 application and variations sought
[2] The application sought to vary the Award through the addition of the following terms:
Bookings
It shall be a condition of every engagement where photographs are being taken of a model that the employer shall, at the time of booking, inform the model of the details for which the photograph is being taken, in writing.
Special Clothes
Where an employee is required to wear Special clothes, in excess of clothing and accessories of basic standard, or special requirements, the employer must reimburse the employee for the cost of obtaining such clothing or requirements. Provided that no payment need be made where the clothing or requirements are provided by the employer. Such special clothes or special requirements provided by the employer remain the property of the employer.
[3] On 12 June 2013, the Shop, Distributive and Allied Employees Association withdrew its application to insert the Special Clothes provision.
Statutory Provisions
[4] 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 sub item (5).”
[5] 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) 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.”
[6] Section 284 provides as follows:
“284 The minimum wages objective
What is the minimum wages objective?
(1) FWA 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.”
[7] It is now appropriate to set out the grounds upon which the application is made.
Grounds
a) These provisions were in the previous Mannequins and Models Award 2000.
b) Both are relevant conditions of work that are peculiar to the modelling industry.
c) The proposed variation complies with the requirements of the Fair Work Act.
d) Any other ground which Fair Work Australia considers relevant.
[8] As part of the 2012 Review, interested parties were directed to file submissions either in support or opposition of the variation. On 17 June 2013, The Shop, Distributive and Allied Employees Association provided submissions in support of their application. No submissions were received that opposed the variation.
[9] The submissions of the Shop, Distributive and Allied Employees Association are as follows:
FWA Review 2012 SDA Mannequins and Models Award Variation Submission
1. This submission is filed by the Shop Distributive and Allied Employees’ Association (the SDA) in relation to its application AM2012/206 to vary the Mannequins and Models Award 2010 (the Award).
General and preliminary matters
2. Item 6 of Schedule 5 of the FW(TPCA) Act requires the Commission to consider, in conducting the current review, whether the Award is:
a. achieving the modern awards objective (set out in s134 of the Fair Work Act 2009 (“FW Act”); and
b. operating effectively, without anomalies or technical problems arising from the Part 10A award modernisation process.
3. It follows from the terms of item 6 of Schedule 5 that the Review is comprised of two parts.
a. First, the obligation mandated by sub-item 6(2) to consider whether
Modern awards:
i. achieve the modern awards objective and are operating effectively, without anomalies or technical problems arising from the Part 10A award modernisation process.
b. Secondly, in the event that the Commission identifies any “issues” in its review of a modern award, it has a broad discretion to vary the award in any way that it considers necessary “to remedy” those issues.1 In making such a variation, the Commission must take into account the modern award objective in s 134 of the Act2 and any variation must also comply with the provisions of the Act dealing with the content of modern awards.3
4. The SDA seeks the insertion of a new subclause, 10.6 as follows:
“10.6 Bookings
It shall be a condition of every engagement where photographs are being taken of a model that the employer shall, at the time of booking, inform the model of the details for which the photograph is being taken, in writing.”
5. The SDA contends that the insertion of this clause is necessary for achieving the modern award objectives of a fair and reasonable safety net of wages and conditions.
6. The above provision was contained in the previous Mannequins and Models Award 2000.
7. It is relevant to the conditions of work that are peculiar to the modelling industry.
8. During the Award Modernisation process in 2008, in it’s submission dated
July 20094, the SDA recommended to the AIRC that;
“Simply because the Mannequins & Models Industry is unique and has little, if any, relationship to the methods of work or the classification structures of any other industry, then the SDA proposes that as far as is possible, that the modern award simply replicate the approach and structure of the existing Mannequins & Models Award 2000.”
9. The clause proposed in this application was included in the SDA’s Draft Award in its July 2009 submission5.
10. The Mannequins and Models industry is unique. It is an industry which offers minimal permanent employment and its casual employment is quite different to casual employment offered in most other industries.
11. Casual employment offered to mannequins and models is predominately offered on an occasion by occasion basis. Casual employment in this industry is not regular, as it is in other industries, such as retail and hospitality.
12. Due to the fact that employment is not regular and offered on an ad hoc basis the job itself varies on each engagement. Therefore, it is necessary for the details of each engagement to be expressly provided and agreed upon at the time of each engagement.
13. The intent of the Bookings clause is to ensure the model knows what the photograph is going to be used for. The clause seeks to protect the model from the photo being used for unauthorized or illegal purposes, or from a situation where the model is paid once for a particular photo or for a particular purpose and the photo is then used many times for many different purposes.
14. The inclusion of a Bookings clause will assist in providing this protection. It will provide greater clarity around the job an employee is agreeing to perform, and its intended purpose, prior to commencing the job.
15. The previous Mannequins and Models Award 2000 contained identical “Bookings” provisions under clause 12.8.
16. The AIRC also included a near identical term in its Exposure Draft6 of the Award in the Award Modernisation process. Clause 10.5(e)(i) stated:
“It will be a condition of every engagement where photographs are being taken of a model that the employer must, at the time of booking, inform the model in writing of the details of the purpose for which the photograph is being taken.”
17. It is unclear why the clause was not replicated in the Modern Award. No express statement was made by the Commission to remove the clause during the award modernisation process.
18. The SDA would contend that given the clause was in the Exposure Draft7 and included in the SDA’s submission8, the AIRC inadvertently left this clause out of the final draft of the modern award.
19. The SDA contends that this clause is essential for the Award to meet the modern award objectives of a fair and reasonable safety net of wages and conditions. It would obviate a source of potential confusion and disputation by making it clear what the conditions pertaining to a booking for a photo shoot actually were.
20. The SDA submits that the Award should be varied to include the bookings clause.
1 See also the Decision at [63].
2 Pursuant to sub-item 6(4) and [63] of the Decision. The Tribunal must also consider the minimum wages objective in s 284 if varying modern award minimum wages: item 6(4).
3 See Decision at [64].
4 Submission to the Award Modernisation Full Bench in relation to Mannequins & Modelling
5 Ibid, clause 9.8 and clause 19.
6 AIRC, Exposure Draft—September 2009 Mannequins and Models Award 2010.
7 ibid.
8 Submission to the Award Modernisation Full Bench in relation to Mannequins & Modelling Industry.
Decision
[10] It seems to be that the Shop, Distributive and Allied Employees Association has made out a convincing case for the remaining variation sought by the application, which is not opposed by any interested party.
[11] On what is before me, it appears that the terms of the variation sought were a well established feature of award regulation of the industry, for the reasons submitted by the Shop, Distributive and Allied Employees Association which was inadvertently overlooked in the process which lead to the making of the Modern Award.
[12] In my view, the inclusion of the term sought by the variation is incidental and necessary to Clauses 20 and 22 of the Award, for the purpose of achieving the Modern Awards Objectives. The utilisation of photographic images in this industry is fundamental to the nature of the work of persons employed in the industry. Engagements for particular purposes, the recording and distribution of photographic images are an essential component and consideration of the economic relationship between the person employed and the person of the employer. Such types of consideration are obviously already grounded in the requirements of Clause 22.2 of the Award.
[13] For all of these reasons, I have decided that the Award will be varied to add the following to the terms to the Award:
22.3 It shall be a condition of every engagement where photographs are being taken of a model that the employer shall, at the time of booking, inform the model of the details for which the photograph is being taken, in writing.
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