[2013] FWC 9543



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

Maggs, Dean

WA Shearing Industry Association Inc

Western Australian Farmers Federation Industrial Association

The North Australian Pastoral Company Pty Ltd

National Farmers’ Federation

Agricultural industry



Review of the Pastoral Award 2010.

[1] This decision concerns applications by Mr Dean Maggs, the National Farmers’ Federation (NFF), the North Australian Pastoral Company Pty Ltd (NAPCo), WA Shearing Industry Association Inc (WASIA) and Western Australian Farmers Federation Industrial Association (WAFFIA), to vary the Pastoral Award 2010 (the Pastoral Award). The applications are made under Schedule 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 Fair Work Australia (now the Fair Work Commission) is required to conduct after the first two years of those modern awards coming into effect (the 2012 Review).

[2] The applications were listed for mention and directions on 14 August 2012 and directions were subsequently issued on 15 August and later amended on 23 November for the filing of submissions and any witness statements. That process was to conclude on 15 February 2013. The applications then came on for hearing on 28 February and 1 March 2013. At the conclusion of the proceedings further directions were issued for the filing of final written submissions on some outstanding issues. That process concluded on or about 2 April 2013.

[3] At the proceedings Mr B Duggan appeared for the NFF, Mr P Houlihan for NAPCo and National Grocery Services, Mr P Brunner for WASIA and WAFFIA, Ms Z Angus for the Australian Workers’ Union (AWU), Mr J Letchford for the Shearing Contractors’ Association of Australia (SCAA) and Mr H Wallgren for Business SA. Mr D Maggs appeared on his own behalf.

[4] Written submissions were received from the Pastoralists and Graziers Association of WA (PGA) and two individuals, Mr T Boote and Mr D Featherstone. The PGA and the two individuals did not appear.

[5] Ms V Gates and Mr D Spencer gave sworn evidence for WASIA. Mr D Fraser gave sworn evidence for the NFF. Mr L O’Brien and Mr S Beechey gave sworn evidence for the AWU. Each witness submitted a witness statement and those statements were marked as Exhibits WASIA 3, WASIA 7, NFF 6, AWU 2 and AWU 3 respectively. A witness statement of Mr K Rice was also tendered by the NFF 1 but Mr Rice was not required for cross-examination.

The Legislation

[6] Schedule 5, Item 6 of the Transitional Act provides:

[7] Provisions of the Fair Work Act 2009 (the Act) are also applicable and relevant to the 2012 Review. Sections 134 and 138 of the Act provide as follows:

[8] On 29 June 2012, the 2012 Review Full Bench published a decision in relation to the 2012 Review 2. The Full Bench said:

[9] The Full Bench went on to say:

[10] The Full Bench said in relation to the application of section 138 of the Act to the 2012 Review:

[11] I now turn to consideration of each application.

Application by Maggs

[12] Mr Maggs’ application sought to increase the base rate for shearers to “$300 per 100 sheep shorn”. Mr Maggs’ application was supported by the AWU. Extensive material was filed by Mr Maggs and he was in attendance via video link from Tumut on 28 February 2013.

[13] On 9 April 2013 Mr Maggs sent an email to my chambers advising that he wished to withdraw his application. I made several further enquiries with Mr Maggs by telephone via my associate to ensure that he was aware of the effect of withdrawing his application. Mr Maggs informed me via my associate that he definitely wished to do so. Accoringly, for completeness, I dismiss Mr Maggs’ application. In any event, it would have been my view that Mr Maggs’ application fell outside the scope of this review.

Applications by WAFFIA and WASIA

[14] The WAFFIA and WASIA applications (as amended) are identical and both sought to vary the Award in the following manner:

Or, in the alternate:

[15] The applications to extend the transitional provisions have been considered by a Full Bench and were dismissed 3. In the circumstances, submissions by the parties and evidence regarding that part of the applications will not be considered in this decision.

[16] Currently clauses 48.1 and 48.2 of the Award read as follows:

[17] In support of the applications, Ms V Gates (WASIA’s Executive Officer) and Mr D Spencer (WASIA’s President) gave sworn evidence and submitted witness statements 4. Those statements dealt with the transitional provisions question. Written submissions were also filed jointly on behalf of WASIA and WAFFIA5. I have considered those submissions insofar as they relate to clause 48 (Shearing Operations) of the Award. In their final submissions, WASIA and WAFFIA argued that “the intention is to simply remove the provisions within the Award that delineate the times when the runs are to commence and finish.” The submissions went on to argue that the variations sought are intended to remove an ambiguity or uncertainty in the Award which arises from a perceived conflict between subclauses 48.2(a) and (d). It was argued that the addition of the terms ‘extenuating circumstance’ and ‘inclement weather’ in (d) would remedy that conflict.

[18] WASIA and WAFFIA submitted that the variations sought reflect the performance and practice of operations within the shearing industry and are necessary to accommodate run patterns adopted by shearing contractors due to the impact of inclement weather, the safety and well-being of shed staff and the welfare of stock.

[19] The SCAA and the AWU opposed the variations. The SCAA did so in its primary 6 and final written submissions. It argued that the applications were “a step towards deregulating the industry’s hours of work.” The SCAA argued that increasing a worker’s flexibility to work weekends on an ‘arbitrary basis’ would not be beneficial for workers. The SCAA further contended that there is no evidence to support a reasonable need to include ‘inclement weather’ as a trigger to vary the ‘ordinary hours of work’.

[20] The SCAA also submitted that the Award already provides flexibility to work weekends when ‘inclemency’ occurs. The variation sought can only be seen as a tactic to “deregulate the Award and increase the opportunity for weekend and overtime work without the inclusion of penalty rates”.

[21] The AWU argued in its primary written submissions 7 and in its final written submissions that the applications should be rejected as they concern matters already dealt with in the Award Modernisation process: “In effect, the applicant does not like the outcome of the Award Modernisation process and is requesting that the Commission reconsider the matter of shearing hours of work or make a ‘fresh assessment’ of those hours. Undertaking such a ‘fresh assessment’ is inconsistent with principles outlined in the June 2012 Award Review decision.” Mr Beechey’s evidence, in part, dealt with the WASIA and WAFFIA applications. I have paid regard to that evidence which largely concerned the merits of the proposed variations to the Award. I have also paid regard to a brief submission made by Mr Boote and another made by Mr Featherstone.

[22] After a careful review of the evidence and submissions relating to the applications by WASIA and WAFFIA, I am led to the conclusion that the changes sought to clause 48 of the Award are not such as would cure any perceived uncertainty, ambiguity, anomaly or technical problems arising from the Part 10A award modernisation process and would make changes to the Award for which there is no necessity and which are beyond the scope of this mid-term review. The applications lack any persuasive evidence and they are both dismissed.

Application by NAPCo

[23] Clause 27 (Classifications) relevantly provides at subclause 27.1:

[24] Subclause 27.2 relevantly provides:

[25] The application (as amended) seeks to delete subclause 27.1(b) and to vary subclause 27.2(a) to delete the words “kitchen/cooking assistance not involving unsupervised food preparation” and inserting in lieu the words “Station Cook”.

[26] The application provided the following grounds in support:

[27] NAPCo’s application sought to correct an alleged anomaly in the award where a Station Cook and a Station Cook’s Offsider are placed under the same classification at level FLH1. NAPCo contended that a Station Cook’s Offsider is a subordinate staff member whose work is normally directed and supervised by a Station Cook.

[28] In final written submissions, NAPCo (per Mr Houlihan) argued that:

[29] The submissions went on to say that the variations would result in an increased in wages for Station Cooks “paid strictly on the award of approximately $18 a week ...”.

[30] In final written submissions, NAPCo submitted that the current provisions relating to Cooks and Cooks’ Offsiders are, on their face, an error or anomaly. The submissions went on to answer the NFF’s opposition to the variations. In his oral submissions, Mr Houlihan said that the Cook and Cook’s Offsider classifications were not canvassed in the making of the modern award and were not the subject of any determination. 8

[31] In oral submissions supporting the NAPCo application, Ms Angus argued that the current award prescription was an oversight which needed to be rectified. 9

[32] Mr Duggan for the NFF, submitted that the NAPCo application “misapprehend[s] the scope and function of a review currently on foot and should be dismissed due to ... falling outside of this review process and be more appropriately framed under a Work Value Reasons case ...” 10 Mr Duggan further submitted that the role of Station Cook and Station Cook’s Offsider were always skills-based interchangeable roles, which were remunerated at the same level under the Pastoral Industry Award 1998 (the 1998 Award). Mr Duggan went on to submit that NAPCo had failed to outline actual problems or confusion in applying the classification as currently drafted and therefore the variations were not justified. However, the NFF agreed with that part of NAPCo’s application which would remove the words kitchen/cooking assistance not involving unsupervised food preparation” from FLH2 classification. Mr Duggan went on to say that this would resolve any anomaly and also preserve the modern award classification structure.

[33] The PGA, in its written submission, said that the proceedings before me “are restricted to considering anomalies which have arisen from the award modernisation process” [emphasis in original]. The submissions go on to argue that the Commission therefore does not have jurisdiction to determine the NAPCo application.

[34] “PGA submits that the proper process available to NAPCo is to seek a review of the award pursuant to section 157 of the FW Act which would enable the history of the classification structure to be examined, evidence to be called and a work value case to be conducted in order to justify any increase to the minimum wage for this classification. In the alternative, NAPCo has the option of applying under section 156 in the year 2014.”

[35] The PGA, in line with the NFF, did not oppose the removal of the indicative duties from the FLH2 classification.

[36] On the face of it, it certainly appears anomalous that the two classifications are both contained at FLH1. However, this ‘anomaly’ has carried over from the 1998 Award into the modern award made in 2010.

[37] In making my decision, I am not at large to cure such matters but am constrained by the provisions of the Transitional Act and Full Bench authority. Accordingly, I must take the same approach to this application as I did to those of WASIA and WAFFIA earlier in this decision. As with those applications, I am led to the conclusion that the changes sought are not such as would cure any anomaly or technical problem arising from the Part 10A award modernisation process. There is, in my view, no necessity to make the changes sought as they are beyond the scope of this mid-term review. The application is dismissed.

Application by the NFF

[38] The application sought to amend clauses 3.1, 17 and 46.3(b) of the Award.

[39] Clause 17 currently provides:

[40] The NFF sought to vary clause 17 of the Award to read as follows:

[41] During proceedings on 1 March 2013, the parties advised me that they had settled their differences concerning clause 17 and had reached the following agreed position 11:

[42] The parties also agreed to insert the following new definition into clause 3.1 of the Award:

[43] Having examined the proposed consent variations to clauses 3 and 17 of the Award as submitted by the parties, and having the benefit of being appraised of the discussions between the parties, I am satisfied that the variations to clauses 3 and 17 as agreed between the parties are consistent with the modern award objective and I will issue a determination in the terms sought, except to amend the monetary amounts in clauses 17.2(b), (c)(i) and (c)(ii) to reflect the variation to the Award made with effect from the first pay period commencing on or after 1 July 2013 12.

[44] The remaining matter to be decided is the NFF’s application to vary clause 46.3(b). Clause 46.3(b) currently provides:

[45] The NFF’s application seeks to vary clause 46.3(b) to reduce the allowance to 49 cents per kilometre.

[46] In a submission accompanying the application, the NFF argued that the award modernisation objects have not been achieved and that the “NFF does not believe that the modern Pastoral Award could objectively be described as an instrument that is promoting ‘flexible modern work practices and the efficient and productive performance of work’.” The submission went on to argue that “the award modernisation process must be carried out in a way that does not increase costs for employers.”

[47] The NFF application was supported by Business SA and opposed by the AWU and the SCAA.

[48] The NFF filed extensive material and brought evidence from Mr D Fraser and Mr K Rice in support of its application. I have paid regard to that evidence and to the submissions of the NFF and the other parties, including evidence from the AWU.

[49] During proceedings, Mr Duggan said that the Pastoral Industry Award 1998 provided for a vehicle allowance of 32 cents per kilometre. “As a direct result of the award modernisation the vehicle allowance increased to 74 cents. That allowance has subsequently increased on 1 July 2012 to 75 cents.” 13 I note here that the allowance increased to 76 cents per kilometre from 1 July 2013.

[50] The NFF’s written and oral submissions included a very detailed analysis of the history of vehicle allowance in the Pastoral Industry together with its views on the nature and scope of this mid-term review in the context of the making of the modern award in 2010. It argued that the justification for varying the vehicle allowance is that such a variation is justified to ensure that the award operates without technical problems or anomalies. In this regard, the NFF maintained that the modern award does not promote flexible modern work practices and the efficient and productive performance of work. It went on to submit “that the Commission has failed to complete the award modernisation process relating the agriculture industry in accordance with Part 10A of the Workplace Relations Act. NFF submits that the decision to impose complexity and increase costs is not a decision made in accordance with the jurisdiction conferred upon the Commission ... and is not a decision authorised by that part of the Act.”

[51] The NFF further argued through its submissions and witnesses that the modern award has imposed an economic burden on employers in regard to the vehicle allowance and that this mid-term review should effectively reverse the decision of the Full Bench. It provided extensive argument and analysis that the vehicle allowance rate is in excess of that required to provide a genuine reimbursement to employees.

[52] “In approaching the claim we submit due consideration shall be paid to whether the Pastoral Award 2010 achieves the modern award objective. Further, consideration shall be directed to whether the Pastoral Award 2010 is operating effectively, without anomalies or technical problems arising from the Part 10A award modernisation process. It is submitted that a significant oversight on behalf of the Full Bench in 2008 can be argued to have occurred on the presented facts. If this proposition is accepted, we then suggest past antecedence holds strong persuasive value and establishes cogent reasons for departing from the Full Bench decision in 2008, which established the Pastoral Award 2010.”

[53] “It is submitted for a single Commissioner to conclude that a previous Full Bench decision was clearly wrong, a strong conviction that the earlier decision was erroneous and the nature of the error can be demonstrated with a degree of clarity if the correct legal analysis is required. It is contended that this has been clearly demonstrated in these proceedings. We further contend the statutory framework anticipates this very situation and hence it is open to reestablishing the intertwined working of the shearing industry allowance and the vehicle allowance during this Transitional Review.”

[54] “In relation to the impact on employees, we contend that the vehicle allowance is a reimbursement allowance, which is partially catered for in the shearing industry allowance and will not have adverse consequences nor disadvantage employees, their families and the wider community.”

[55] I have omitted the NFF’s analysis of relevant Commission decisions going back to 1974 in any detail but in bare summary the NFF submitted that the Full Bench erred in 2008 in relation to vehicle allowance when making the modern award and that I should go back to what was allegedly past practice by the Commission and depart from the Full Bench approach in favour of that proposed by the NFF.

[56] As noted above, the application was opposed by the SCAA and the AWU. In its final written submissions, the SCAA said: “A seven member Full Bench specifically dealt with the matter of the appropriate rate for vehicle allowances in the Award Modernisation Process. The NFF’s submission is a ‘change of mind’ rather than a correction to an anomaly that the Full Bench failed to see. It would be unjustified for a single member of the Commission to depart from this determination.”

[57] In its final written submissions, the AWU argued in similar terms to the SCAA that: “The NFF is effectively asking a single member of the Commission for a ‘fresh assessment’ of a matter considered and determined by the Full Bench. The NFF did not made any submissions to the Full Bench during award modernisation on the issue of reimbursement of vehicle costs.”

[58] The AWU went on to say: “Now the NFF asks the Commission to depart from that Full Bench decision to standardize the vehicle allowance and impose a different standard in the pastoral industry. Essentially, the applicant requests that a single Commission member step into the shoes of the Full Bench and reconsider that Full Bench determination that vehicle allowances be standardized across all awards. They do so on the on the basis of a fresh argument advanced some three years later.”

[59] “1n essence, the NFF is asking a single member of the Commission to take a fresh look at the appropriate quantum of the vehicle allowance in one modern award and depart from the express decision of the Full Bench. This approach of making a ‘fresh assessment’ of a matter determined by the Full Bench runs contrary to the purpose of the modern award review. Again, the Modern Awards Review 2012 decision of 29 June 2012 makes this clear:

[60] I find myself in full agreement with the arguments set out above from the SCAA and the AWU. It is certainly not my intention to make any decision which would be in clear conflict with the Full Bench. The application by the NFF is not one that can be entertained by this mid-term review. The application is dismissed.

Other award variations

[61] At the conclusion of proceedings on 1 March 2013, I raised with the parties a number of matters which had been identified by the Commission’s Modern Awards Team and provided the parties with a document setting out the matters, for their comment. The AWU and the NFF responded in some detail, agreeing with some proposed variations and opposing others. The items which met with a common positive response from both the AWU and the NFF were:

Clause 3.1 (Definitions and interpretation)

[62] It is proposed to vary part of the definition of ‘continuous service’ in clause 3.1. The relevant part of that definition currently reads as follows:

[63] It was proposed by the Commission’s Modern Awards Team that the above definition be reworded to read:

[64] The AWU agreed with the above proposal as did the NFF. The NFF added a suggestion that the word ‘paid’ be added before the word ‘leave’.

[65] I am satisfied that the variation agreed to by the AWU and the additional variation suggested by the NFF should be approved on the ground of providing great clarity in the Award. A determination will therefore issue that the following be inserted at clause 3.1 of the Award in lieu of that currently appearing:

[66] It was further proposed that the definition of ‘wine industry’ in clause 3.1 be replaced with the definition contained in the Wine Industry Award 2010, as the Pastoral Award definition is inconsistent with that contained in the Wine Industry award. I agree with the proposal on the ground that consistency should be maintained between modern awards wherever possible and a determination will issue that the following definition of ‘wine industry’ will replace that currently appearing in the Award:

Clause 35 (Ordinary hours of work and rostering) in Part 5 - Pig Breeding and Raising

[67] Clause 35.1 currently provides as follows:

[68] The parties agreed that the words “in any month” should be deleted and the words “in any four week period” inserted in lieu thereof. The proposed variation would provide consistency with other modern award “Hours” clauses. Accordingly, a determination to vary the clause in the terms sought will be issued.

Clause 41 (Ordinary hours of work and rostering) in Part 6 - Poultry Farming

[69] Clause 41.2 of the Award currently provides:

[70] The clause deals with overtime payments. Clearly, it does not appear in the correct section of the Award and should be moved to become part of clause 42 (Overtime). I agreed with the proposal and a determination will issue to that effect. This change is necessary to provide clarity.

Clause 45.2 (Rates for crutching)

[71] Clause 45.2(d) currently provides:

[72] The cross reference to “clause 45.1(a) to (f)” is a clear error and the reference should be “clause 45.2(a)”. A determination will issue correcting the error.

Clause 45.8 (Woolclassers and Shearing shed experts)

[73] Subclauses 45.8(a)(i), (ii) and (iii) contain the words “is derived according to the following formula ...” It is proposed that the word “derived” should be deleted in each case and the words “arrived at” should be inserted in lieu thereof to provide consistency with the wording in other clauses of the Award. This is desirable for clarity and a determination will issue in the terms sought.


 1   Exhibit NFF 8.

 2   [2012] FWAFB 5600.

 3   See [2013] FWCFB 4539.

 4   Exhibits WASIA 3 and WASIA 7 respectively.

 5   Exhibit WASIA 2 and final written submissions received on 22 March 2013.

 6   Exhibit SCAA 1.

 7   Exhibit AWU 1.

 8   Transcript PNs421-422.

 9   Transcript PNs493-494.

 10   Transcript PNs174.

 11   See Exhibit NFF 9.

 12   PR536821.

 13   Transcript PN853.

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