[2013] FWCFB 580 |
FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
VICE PRESIDENT WATSON |
|
Appeal against decision [[2012] FWA 8726] of Senior Deputy President Hamberger at Sydney on 17 October 2012 in matter number AM2012/153- appeal in relation to application to vary modern award - modern awards review - consideration of modern awards objective - whether provision varied previously considered - whether principle misapplied - Fair Work Act 2009 - ss.134, 604 - Fair Work (Transitional Provisions and Consequential) Amendments Act 2009 - Item 6 of Schedule 5.
Introduction
[1] This decision concerns an application for permission to appeal under s.604 of the Fair Work Act 2009 (the Act) by the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) against the decision of Senior Deputy President Hamberger on 17 October 2012 to vary the Graphic Arts, Printing and Publishing Award 2010 1 (the Award). His Honour varied the Award to allow for wages to be paid weekly or fortnightly as determined by the employer or four weekly or monthly if agreed with an individual employee. His Honour also varied the arrangements for payment on termination.
[2] At the hearing on 19 December 2012, Mr I Latham of counsel appeared on behalf of the AMWU, Mr Y Shariff of counsel appeared on behalf of Australian Business Industrial (ABI), Ms N Gao appeared on behalf of the Printing Industries Association of Australia (PIAA) and Mr B Ferguson appeared on behalf of the Australian Industry Group (AiG).
Background and Decision under Appeal
[3] ABI made an application to vary the Award as part of the two-yearly review of modern awards. 2 The application related to the frequency of pay cycle and payments on termination of employment. In what is described by the AMWU as the crux of his decision his Honour said:
“Consideration
[24] It is clear from the relevant transcript that no substantive consideration was given to the issue of the frequency of pay cycle at the time the Award was made. DP Ives noted in passing that the issue of the pay cycle could be dealt with in a ‘certified agreement’. Of course almost any provision in an award could be dealt with by enterprise bargaining. The matter was not pressed by PIAA. There is no evidence in the relevant Full Bench statement or decision concerning the making of the Award that the Full Bench gave any consideration to the issue. This is therefore not a case where, in the words of the 2012 Review Full Bench ‘cogent reasons will need to be advanced for departing from the award provision.’
[25] There are very few modern awards that require wages to be paid weekly. The great majority of awards, including those which cover a greater number of low paid employees than this award, allow at least for fortnightly pay. The manufacturing award, which covers very similar employees to those covered by the Award, provides for wages to be paid weekly or fortnightly. Where there is agreement between the employer and the majority of employees in the relevant enterprise, or with an individual employee, wages may be paid three weekly, four weekly or monthly. I am satisfied that it is anomalous and unduly prescriptive for the Award to require that wages must be paid weekly. Varying the Award to bring it broadly into line with the manufacturing award will ensure that the Award meets the modern award objectives. In particular it is consistent with the need to promote flexible modern work practices.
[26] Accordingly, Clause 28.1 will be deleted and replaced with a new clause:
“Wages must be paid weekly or fortnightly as determined by the employer. Wages may be paid four weekly or monthly if agreed with an individual employee.”
[27] The case for varying the provision dealing with payment on termination is less compelling. I note, for example, that the current clause is very similar to that in the manufacturing award. It would however be appropriate to make the minor change proposed by the PIAA, in recognition of the difficulties that may arise if an employee is terminated without notice on or just before a weekend. The clause will be varied so that it reads:
“On termination of employment, all monies due to an employee must be paid on the day of termination. When an employee is dismissed without notice all monies are to be forwarded to the employee by post or electronic funds transfer by the end of the next business day following the termination.”
Grounds of Appeal
[4] In its outline of submissions filed prior to the hearing, 3 the AMWU challenged the decision on jurisdictional and discretionary grounds. In short, the jurisdictional grounds are that his Honour failed to apply the task for reviewing the Award as prescribed in Item 6(2) of Schedule 5 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the Transitional Act). More specifically the AMWU contends that his Honours decision is deficient in that it fails to consider whether the Award achieved the modern awards objective as required by Item 6(2) and made the determination in the absence of evidence.
[5] The discretionary grounds of appeal are that his Honour should have found that there were no cogent reasons for departing from the Award provision settled from various previous proceedings during award simplification and award modernisation.
Jurisdictional Grounds
[6] His Honour set out the task he was required to apply under Item 6 of Schedule 5 of the Transitional Act in earlier parts of his decision. The nature of the Commission’s task in Item 6(2) is expressed as follows:
“(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.”
[7] His Honour also set out the modern awards objective in full. The objective is 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.”
[8] In determining particular matters as part of the award review, there can be no doubt that regard must be had to both paragraphs of Item 6(2). However, that is not to say that a change can only be made if both paragraphs positively support the amendment. The task of reviewing the Award is clearly intended to be a broad one. The Fair Work Commission is required to have regard to all of the circumstances. But a change may be justified if is justified on only one basis. For example, if a change remedies a technical problem and is otherwise neutral with respect to the other considerations, the change is one that the legislation suggests should be made.
[9] Further the overall judgement required in considering whether the Award meets the modern awards objective is a very broad one in itself. The various elements of the objective, separately and in combination, allow for a consideration of a broad range of factors. Those circumstances in relation to pay periods include the administrative efficiencies arising from the reduction in pay periods, payment practices that operate generally in the community, and the impact of a change on particular employees.
[10] The wording of his Honour’s decision identifies the goal of achieving the modern awards objective by reference to bringing this award into line with the Manufacturing and Associated Industries Award 2010. 4 In our view, such a consideration falls within the broad range of factors that are relevant to this issue. His Honour expressly refers to the legislative tests. An appeal bench should not travel over a decision under appeal with a fine tooth comb. We consider that his Honour understood and applied his legislative task. We do not consider that his Honour has failed to properly apply the legislative provision.
Discretionary Grounds
[11] In advancing the discretionary grounds of appeal the AMWU acknowledges that it must meet the test for appeals against discretionary decisions. It submits that in this case his Honour failed to follow relevant Full Bench decisions and thereby acted on the wrong principle and did not take account of a material consideration.
[12] The principle said to be misapplied is a statement of a Full Bench in the Modern Awards Review that an applicant will have to show that there are cogent reasons for departing from a previous Full Bench decision, such as a significant change in circumstances which warrant a different outcome. 5 The AMWU accepts that the following formulation in the review of the Oil Refining and Manufacturing Award 2010 makes the same point:6
“Where an evidentiary case has been presented, direct submissions have been made and the tribunal has made a determination about the relevant award provisions on the basis of that material, cogent reasons will need to be advanced for departing from the award provision.”
[13] The AMWU submits that there were no cogent reasons for departing from the previous Award provisions in circumstances where the PIAA had previously sought changes to the payment of wages clause and this amounted to a prior substantive consideration of the matter. The ABI and other employer bodies submit that the previous consideration of this matter did not involve an evidentiary case, was not the subject of direct submissions and there was no express determination based on submissions and evidence.
[14] We have considered the transcript of proceedings before Deputy President Ives in the consultations regarding the award modernisation process on 28 November 2008 and the outline of the consideration of the matter in the proceedings before Senior Deputy President Hamberger at PN 34-54 of the transcript of proceedings of 3 September 2012. We consider that his Honour’s consideration of that material in paragraph [24] of his decision, set out above, is correct. We therefore are of the view that his Honour correctly applied relevant principles in his consideration of this matter and in doing so made no appealable error in reaching his decision.
Conclusions
[15] For the above reasons we do not consider that the AMWU has established error in the decision under appeal. In the light of the subject matter of the appeal we grant permission to appeal and dismiss the appeal. We will discharge the stay issued in relation to the determination made by his Honour, 7 but in order to avoid any adverse consequences arising from a change of this nature without notice we will discharge that stay with effect from 8 March 2013.
VICE PRESIDENT WATSON
Appearances:
I Latham of counsel for the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU)
Y Sharriff of counsel for Australian Business Industrial
N Gao for Printing Industries Association of Australia
B Ferguson for the Australian Industry Group
Hearing details:
2012.
Sydney.
December, 19.
Final written submissions:
Australian Business Industrial - 20 December 2012.
“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) - 21 December 2012.
2 Item 6, Schedule 5 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009.
3 Exhibit L1.
5 [2012] FWAFB 5600 at [46].
6 [2012] FWA 7212 at [20].
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