[2013] FWC 676 |
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
(AM2012/151)
Nursery industry | |
COMMISSIONER RIORDAN |
SYDNEY, 11 MARCH 2013 |
Modern Awards Review 2012 - application to vary the Nursery Award 2010.
Introduction
[1] This decision concerns an application by Australian Business Industrial (ABI) to vary the Nursery 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 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] The application was subject to numerous Conferences between the parties and was set down for hearing on 7 December 2012.
The Legislation
[3] 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).”
[4] 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
Following discussions between the parties, ABI sought the following variations to the Award:
[5] Clause 10.2(b)
By deleting the words “scale” appearing in clause 10.2(b).
[6] Clause 10.3(h)
By inserting a new clause 10.3(h) as follows:
“A part - time employee may agree to work in excess of their normal hours as agreed in clause 10.3(b) and will be paid at ordinary time up to a maximum of thirty-eight hours; provided that the additional time worked is during the ordinary hours of operation of the nursery.”
By renumbering clauses 10.3(h) and (i) as clauses 10.3(i) and (j) respectively.
[7] Clause 22.3
By deleting clause 22.3 and inserting a new clause 22.3 in lieu thereof:
“On termination of the employment, the wages due to an employee must be paid on the day of termination or be forwarded to the employee within 2 business days after termination”.
[8] The AWU consented to the variations sought by ABI in relation to Clauses 10.2(b) and 22.3.
[9] The Matter proceeded by way of hearing on 7 December 2012 in Sydney. Mr Vernier appeared on behalf of ABI. Ms Angus appeared for the AWU.
Decision
[10] I have taken into account all of the evidence and submissions of the parties in reaching this decision.
[11] In June 2012, the Modern Awards Review Full Bench established the guidelines to be followed in relation to any application to vary an award during the review process;
“[85] ... 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.
“[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.” 2
[12] I accept the proposition enunciated by Watson VP in Oil Refining and Manufacturing Award 2010; 3
“[27] The June decision in relation to the 2012 Review referred to above, provides guidance as to the approach to be adopted where a variation sought has already been dealt with in the Part 10A process. It is necessary to show that there are cogent reasons for departing from a previous Full Bench decision. I do not take the 2012 Review Full Bench to be extending that proposition to all award conditions - otherwise the review would be of little utility and it would be doubtful that the Tribunal would be carrying out its statutory obligation to consider at the time of the review and on the material presented at the time, whether the Award achieves the modern awards objective.” 4
[13] The Modern Award Full Bench issued an Exposure Draft of the Nursery Award on 23 January 2009. The draft award contained a part-time clause which contained all of the provisions of the part-time clause in the Modern Award, as well as a clause dealing with overtime being paid at the appropriate rate.
[14] Following submissions from a number of the parties which raised the precise subject matter of this application, the Modern Award was made on 3 April 2009 with a modified clause relating to part-time employment, ie, Clause 10.3 of the Modern Award.
“[64] We have made some modifications to the coverage provisions in the exposure draft and to the related definition of associated nursery products in order to reduce the possibility of overlap with the retail industry. To that end we have also provided for an exclusion in relation to the operation of the General Retail Industry Award 2010 (General Retail Modern Award). An adjustment to the entry level pay rates has also been made. In addition two provisions which were in the exposure draft have not been included because they are not features of the existing award and NAPSA coverage. The most significant of those is the casual conversion clause. The other related to hours for part-time employees.” 5
[15] As a result of the modifications that were made to Clause 10.3 from the Exposure Draft to the Modern Award, I am convinced and find that the Full Bench considered the submissions of all the parties in relation to this clause. The fact that the Full Bench did not detail the submissions made by the parties in its decision, in my view, does not mean that those submissions were not considered by the Full Bench.
[16] Therefore, the test that must now be applied to any variation is that which was determined by the Full Bench in the June 2012 Review ie, “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.”
[17] ABI submitted that a survey of some 32 participants represented the requisite proof that the proposed variation should be granted by FWC. Two issues emanate from this proposition. Firstly that a survey sample of 32 is far too small and narrowly focused to be of any real evidentiary value and secondly the questions that were asked were pointed and deliberately targeted to achieve a certain outcome.
When dealing with the evidentiary value of a survey, the Full Bench in an application made by the Victorian Employer’s Chamber of Commerce and Industry to vary the Private Sector Clerks Award 2010 6, determined;
“[16] The statements relied upon by VECCI are all statements prepared by employers who are a small, effectively self-selecting sample. This material lacks any of the statistical rigour of a properly designed and conducted survey. It represents little more than 20 employers saying that they think the change is a good idea and would be beneficial to them in their business. There were no statements from employees going to the impact of the proposed variation on employees or the attitudes of employees. There was no reliable survey evidence. There was no expert evidence. This is not to say that such evidence will invariably be necessary. However, some of the criteria in s.134(1) we think naturally lend themselves to that sort of evidence.” 7
[18] ABI sought the same variation in the review of Clerks Private Sector Award 2010 initiated by an application by the Motor Traders Association and others. In this matter, Kaufman SDP found;
“[135] I have decided not to accede to ABI’s proposal. As with many of the other changes sought in this matter, no evidence has been adduced such as would persuade me that the current clause does not meet the modern awards objective or that it is anomalous or working inefficiently. I am satisfied that the Award, whilst it contains the clause, meets that objective.” 8
[19] Finally, I am not comfortable with the concept that a part-time employee has a different set of conditions of employment then a full time employee except for those on a pro rata basis. To create a different set of conditions is, in my view, a very dangerous precedent which has the capacity to undermine the integrity and purpose of full time employment. It is open for abuse. In reviewing the Nursery Award, the Full Bench included a flexibility provision at clause 10.3, which had never been seen in this industry previously. It allows for a number of flexibilities, by agreement, between the employer and employee which caused the AWU to object to their inclusion in the Exposure Draft. The Full Bench did not accede to the AWU’s request to remove this clause.
[20] I am satisfied and find that the provisions of the Modern Award satisfy the necessary requirements of the Act in providing an appropriate level of flexibility. The application by ABI to vary clause 10.3(h) of the Award is denied.
[21] I am satisfied that the consent variations sought by the parties to vary clauses 10.2(b) and 22.3 are consistent with the Modern Award objective and I vary the Award in the following manner;
“10.2(b) A full-time employee will be provided with a written statement setting out their classification, applicable pay and terms of engagement.
22.3 On termination of the employment, the wages due to an employee must be paid on the day of termination or be forwarded to the employees within 2 business days after termination.”
The determination
[22] A determination is contained in PR534343.
COMMISSIONER
2 2012 FWAFB 5600.
5 [2009] AIRCFB 345
Printed by authority of the Commonwealth Government Printer
<Price code C, MA000033 PR533637 >