[2013] FWC 9570

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
Business SA
National Union of Workers
(AM2012/173, AM2012/269 and AM2012/281)

Storage services
COMMISSIONER CRIBB	MELBOURNE, 17 DECEMBER 2013

Modern Awards Review 2012 - application to vary the Storage Services and Wholesale Award 2010 - payment of wages on termination - public holiday or day off coinciding with pay day - damaged personal effects allowance - skills/duties of storeworker grade 1.

Introduction

[1] The Fair Work Commission (the Commission) (previously Fair Work Australia) is required by the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Transitional Act) to conduct a review of all modern awards, other than modern enterprise awards or State Reference Public Sector awards.

[2] This decision concerns three applications to vary the Storage Services and Wholesale Award 2010 1 under Schedule 5, Item 6 of the Transitional Act and determines each of the variations sought, other than variations which are being dealt with by Full Benches constituted to deal with particular matters in the 2012 Review.

[3] The applications to vary the Storage Services and Wholesale Award 2010 are as follows:

● AM2012/173—application by Australian Business Industrial (ABI);

● AM2012/269—application by Business SA; and

● AM2012/281—application by the National Union of Workers (NUW).

Proceedings

[4] Conferences were held with the interested parties on 4 June 2013, 20 June 2013, 2 September 2013, 24 September 2013 and 20 November 2013. As a result of the conferences and further extensive discussions between the parties, certain aspects of the applications were no longer pressed and agreement was reached in respect of other matters.

[5] During the conference and discussion process, ABI no longer sought to press its application (AM2012/173) in relation to part-time employment (clauses 11.3(f) and 24.1) and method of payment (clauses 20.1 and 20.2). In addition, Business SA did not pursue its application (AM2012/269) in regard to the arrangement of ordinary hours for day workers (clause 22.1). Also, in respect to AM2012/281, the NUW no longer continued with its application regarding the definitions (clause 3.1), a casual conversion clause (clause 11.4) and rest periods for shift workers (clause 23.2).

[6] The outcome of the process was a draft determination, which was not opposed by the parties, covering the following applications and items only:

● AM2012/173—payment of wages on termination (new clause 20.3) and a public holiday or day off coinciding with pay day (new clause 20.4);

● AM2012/269—damaged personal effects allowance (new clause 16.6); and

● AM2012/281—skills/duties of Storeworker Grade 1 (new clause B.1.2(f) in Schedule B).

Relevant legislation

[7] Schedule 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).”

[8] In conducting the review, consideration has also been given to the guidance provided in statements issued by the President and in the decisions of the various relevant Full Benches.

Consideration

[9] The Commission was assisted by the parties not opposing the terms of a draft determination. The extensive work of the interested parties in reaching a concluded view is noted. This is a relevant consideration in the exercise of the discretion in conducting the review.

[10] On the basis of the content of the conferences before the Commission, the Commission is satisfied that it is appropriate to issue a determination in the terms of the draft determination that was circulated to, and not opposed, by the parties. A separate determination 2 in these terms will be issued in conjunction with this decision.