[2013] FWC 561

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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

Australian Business Industrial
(AM2012/150)

Pharmaceutical industry
COMMISSIONER RIORDAN	SYDNEY, 4 March 2013

Modern Awards Review 2012 - application to vary the Pharmaceutical Industry Award 2010.

Introduction

[1] This decision concerns an application by Australian Business Industrial (ABI) to vary the Pharmaceutical 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 of which the Fair Work Commission (formerly Fair Work Australia) is required to conduct after the first two years of all modern awards coming into effect (the 2012 Review).

[2] This application was subject to numerous conferences and discussions between the parties.

Correspondence was received on 13 November 2012 confirming that the Australian Workers’ Union (AWU), the Australian Manufacturing Workers’ Union (AMWU) and the National Union of Workers (NUW) have reached an agreement in relation to ABI’s application.

[3] The parties agreed to a further amendment suggested by the Commission on 25 February, 2013.

The Legislation

[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 subitem (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.”

Variations Sought

[6] The Pharmaceutical Industry Award 2010 is varied as follows:

1. By deleting the clauses 21.1, 21.2 and 21.3 and inserting the following new clause 21 in lieu thereof:

“21. Payment of Wages

21.1 Wages must be paid by cash, cheque or EFT weekly (or fortnightly by agreement with the majority of affected employees or an individual employee), not later than Thursday in each pay week, unless otherwise agreed with the majority of employees. Provided that in any pay week in which a public holiday falls on a Thursday or Friday, wages accrued must be paid on the previous Wednesday.

21.2 An employee paid by cash or cheque, must be paid in the employer’s time and if kept waiting for their wages on pay day for more than 15 minutes after the usual time for ceasing work must be paid at overtime rates after that 15 minutes until payment has been received.

21.3 On termination of employment the wages due to an employee must be paid on the day of such termination or be forwarded to them within 2 business days after termination.”

Decision

[7] I am satisfied that the consent variations sought meet the relevant tests pertaining to the Modern Award Review.

I hereby grant the application.

The determination

[8] A determination is contained in PR533488.

COMMISSIONER

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