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 Nursing and Midwifery Federation and others
(AM2012/132 and others)

C2013/6468—appeal against decision [[2013] FWC 5369] of Deputy President Smith at Melbourne on 30 September 2013 in matter number AM2012/132 and others, determination [MA000003 PR539921] of Deputy President Smith at Melbourne on 1 October 2013 in matter number AM2012/179 and AM2012/240, and determination [MA000005 PR541744] of Deputy President Smith at Melbourne on 1 October 2013 in matter number AM2012/172—Full Bench appeal—order to provide full reasons [PR545733].

[1] I have been ordered by a Full Bench to provide full reasons for the decision [[2013] FWC 5369] in so far as it relates to determinations MA000003 PR539921 and MA000005 PR541744.

[2] It is appropriate to deal with the process which led to the final decision.

[3] The matter was listed for hearing on 15 May 2013. At that time the persons present were hopeful of a resolution on all matters. Notwithstanding efforts to deal with the matter expeditiously there had not been agreement reached on all matters.

[4] The Full Bench is aware that a number of members were delegated to deal with various applications under the awards before the Full Bench of which I was a member. There was some subject matter overlap in responsibility. Indeed, the Full Bench will note that a matter before me was dealt with by His Honour Deputy President Sams, no doubt with the consent of the parties. (See paragraph [20] of the decision.)

[5] Given the time that elapsed I decided to seek to bring the matter to some finality. In this connection I prepared a proposed draft order for comment from the material before me. That was sent to the parties on 12 September 2013. Following that, the National Retail Association (NRA) provided submissions on the proposal put forward. That was received on 24 September 2013 and uploaded onto the Award Modernisation web page on 25 September 2013. Arising from the submissions being uploaded all subscribers were notified of the alteration to the web page with the additional submission on the same day. This practice is consistent with all matters relating to award modernisation.

[6] The following persons from the Shop, Distributive and Allied Employees Association (SDA) were sent the notification:

Sue-Anne Burnley—SDA—sue-anne@sda.org.au;
Donald Blairs—SDA—donaldb@sda.com.au;
Jane Willey—SDA—Jane@sda.org.au;
David Bliss—SDA Newcastle Branch—david@sdan.org.au;
Marie Racelis—SDA—marie.racelis@sdansw.asn.au;
Raff—rciccone@sdavic.org; and
Antony Burke—SDA—tburke@sdavic.org.

[7] Arising from that submission, which I understood was then known to all relevant persons, no further submissions were received. After reviewing:

● The decision of Commissioner Hampton which arose from the same Full Bench proceedings and dealt with the same subject matter, although the context was different. (See: [2013] FWCFB 2168 at paragraphs [154] and [155]); and

● The submissions of the NRA and the fact that no additional submission from interested persons, who were notified of the existence of the submission, was received,

I was persuaded to alter the draft forwarded to the parties in favour of the submission made by the NRA.

[8] Against the background of those submissions, my reasons were:

[16] I have decided that the clause inserted by Commissioner Hampton is appropriate to include in this award even against the background that it was achieved by consent. In doing so the safety net for an employee does not alter unless there is agreement to do so by substituting another form of compensation. To access the alternative there must be mutual consent and employees cannot be pressured into agreeing as that would not constitute genuine consent. This is emphasised by the final sub-clause.

[17] With relevant changes, the award will be varied to reflect the position set out by Commissioner Hampton. A determination varying the award will be issued. 1

[9] It would be disingenuous to advise the Full Bench that the reasons for my decision travelled extensively beyond that given in my decision. I considered all the submissions. It would be inappropriate to take advantage of the benefit of hindsight even if memory permitted it and even if I got it wrong. I considered (although not put to the participants in the proceedings) that general retail and fast food were similar in that there were vulnerable employees for whom consent might be moot. However, in the circumstances I considered it was appropriate to give weight to the concept in the General Retail Award 2010 2 and Commissioner Hampton’s approval of, what was in the end, an agreement varying the award involving the SDA. Such approval would have been consistent with the review process and appropriate in all the circumstances. The SDA’s position before Commissioner Hampton was without prejudice to other detailed arguments but it appeared to me at the time that two matters of principle were present:

● It was an appropriate flexibility 3 amendment for the review, and

● The safety net was maintained as change could not occur without the existence of consent.

[10] It was against that background that the decision was made and I cannot take the matter further.

DEPUTY PRESIDENT

 1   [2013] FWC 5369 at paras [16] and [17].

 2   MA000004.

 3   [2013] FWC 5369 at paragraph 161 “However, we think there is merit in providing some additional agreed flexibility as to how the compensation for public holidays is treated in these modern awards. Such an approach would consistent with the modern awards objective.”

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