[2013] FWC 938 |
FAIR WORK COMMISSION |
DECISION AND REASONS FOR 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
Western Australian Local Government Association
(AM2012/19)
COMMISSIONER CLOGHAN |
PERTH, 11 FEBRUARY 2013 |
Review of modern award.
[1] On 5 March 2012, the Western Australian Local Government Association (WALGA) made application to Fair Work Australia, now Fair Work Commission (Commission) to vary a modern award pursuant to Fair Work (Transitional Provisions and Consequential Amendments) Act 2009, Part 2 of Schedule 5.
[2] The application relates to the Water Industry Award 2010.
[3] The variations concern:
● Subclause 10.4 Part-time employees
● Subclause 10.5 Casual employees
● Subclause 19.1 Leading hand allowance
● Subclause 19.3 First aid allowance
● Subclause 26.2 Payment for overtime
● Clause 27 Annual Leave.
[4] The application was referred to me on 7 January 2013.
[5] On 21 January 2013, the application was listed for hearing on 5 February 2013.
[6] On 29 January and 30 January 2013, the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers’ Union (AMWU) and the Australian Municipal, Administrative, Clerical and Services Union (ASU) requested permission to appear in the proceedings. Permission was granted.
[7] On 31 January 2013, Mr S Roffey, Employee Relations Service Manager, WALGA Workplace Solutions provided to the Commission and copy to the AMWU and ASU a written submission which WALGA intended to rely upon at the hearing on 5 February 2013. The submission, while entitled WALGA, was on behalf of the Local Government Associations (Associations).
[8] The Associations comprise of:
● The Local Government Association of Northern Territory;
● The Western Australian Local Government Association;
● The Local Government Association of Queensland;
● The Local Government Association of New South Wales; and;
● The Shires Association of New South Wales.
[9] The hearing on 5 February 2013 was adjourned to 6 February 2013.
[10] At the hearing on 6 February 2013, the LGA submitted that it did not seek to pursue variations in relation to:
● Subclause 10.4 Part-time employees
● Subclause 10.5 Casual employees
● Subclause 19.1 Leading hand allowance
● Subclause 19.3 First aid allowance.
[11] Before turning to the remaining terms which WALGA have sought to vary in the Water Industry Award 2010, the AMWU and AUS submitted respectively that the Associations “do not have an interest in the Award and therefore have no standing to make the application as part of the Modern Awards Review 2012” 1 and “the LGAs have neither coverage nor interest in the WI Award, that their application to vary the WI Award lacks merit and should be set aside”2. However, for the reasons set out below, it was not necessary to determine this jurisdictional matter.
[12] I note that the Commission has an application from WALGA to vary the Water Industry Award 2010.
[13] I now turn to the remaining terms which WALGA have sought to vary.
Clause 27 Annual Leave
[14] WALGA seeks that the following submission and proposed variation be referred to the Full Bench of the Commission in proceedings related to AM2012/8 and others:
“The Association’s submit that the shiftworker definition determined by the Commission for the Award is too broad and incorporates groups of employees that have never been considered shiftworkers. These employees are therefore being compensated through an additional week of annual leave in addition to the penalty rates for working on weekends and public holidays.
The Associations submit the definition at subclause 27.2 should be amended to more accurately represent shiftwork in a water industry environment:
27.2 Shiftworkers for the purposes of the NES
(a) For the purposes of s.87(1)(b) of the Act, a shiftworker is an employee:
(i) who workers under a continuous 24 hour roster and who, over the roster cycle, may be rostered to work ordinary shifts on any of the seven days of the week; and
(ii) who is regularly rostered to work on Sundays and public holidays.”
[15] Notwithstanding its objection to the standing of the Associations, the AMWU and ASU concur with this proposed course of action.
[16] The application, as it relates to a variation to Clause 27: Annual Leave of the Water Industry Award 2010, will be referred to the Full Bench of the Commission dealing with AM2012/8 and others.
Subclause 26.2 Payment for overtime
[17] WALGA submit that, “In computing overtime, each day’s work stands alone” be inserted into existing subclause 26.2(d) or as a new subclause 26.2(g) of the Water Industry Award 2010.
[18] Notwithstanding its objection to the standing of the Associations, the AMWU and ASU have no objection to the inclusion of the term sought by WALGA. The AMWU further submit that the current wording in the subclause creates uncertainty and the proposed variation would ensure that the Award operates effectively.
[19] For the above reasons, a Determination (PR533983) is made to vary the Water Industry Award 2010 to include a new clause 26.2(g) which will read:
“In computing overtime, each day’s work stands alone.”
COMMISSIONER
Appearances:
S Roffey, for WALGA.
B Blanchard, for the AMWU.
W Fridell, for the ASU.
Hearing details:
2013:
Perth
5 & 6 February.
1 Exhibit AMWU1
2 Exhibit ASU1
Printed by authority of the Commonwealth Government Printer
<Price code A, PR533966>