[2014] FWCFB 1788

The attached document replaces the document previously issued with the above code on 17 March 2014.

The citation for Nguyen v Nguyen at endnote 15 is corrected to (1990) 169 CLR 245 at 269 and P Stuckey-Clarke for the Australian Federation of Employers and Industry has been added to the list of appearances.

David Mitchell

Associate to Justice Ross

Dated: 26 March 2014.

[2014] FWCFB 1788

FAIR WORK COMMISSION

DECISION


Fair Work Act 2009

s.156 - 4 yearly review of modern awards

4 Yearly Review of Modern Awards: Preliminary Jurisdictional Issues
(AM2014/1)

JUSTICE ROSS, PRESIDENT
VICE PRESIDENT HATCHER
SENIOR DEPUTY PRESIDENT ACTON
SENIOR DEPUTY PRESIDENT HAMBERGER
COMMISSIONER HAMPTON

MELBOURNE, 17 MARCH 2014

4 Yearly Review of Modern Awards: Preliminary Jurisdictional Issues.

Background

[1] Section 156 of the Fair Work Act 2009 (Cth) (the FW Act) provides that the Fair Work Commission (the Commission) must conduct a 4 yearly review of modern awards (a Review) starting as soon as practicable after each 4th anniversary of the commencement of Part 2-3 of the FW Act. Part 2-3 commenced on 1 January 2010 1 and so the first Review is to start as soon as practicable after 1 January 2014. For convenience we refer to this review as ‘the Review’. In relation to the timeframe for the Review, we note that the wording of s.156 (1) differs to the requirements relating to the transitional review of modern awards contained in subitem 6(1) of Schedule 5 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the Transitional Act). The Transitional Act says that “as soon as practicable . . . FWA must conduct a review of modern awards” (emphasis added), whereas s.156(1) requires the Commission to start conducting the Review as soon as practicable. We agree with the submissions of the Australian Industry Group (Ai Group) that we have already met the requirements of s.156(1) in commencing the Review and that there is no requirement for the Commission to complete the Review with undue haste which could lead to unfairness and injustice.2

[2] A draft statement was published on 15 November 2013 providing a preliminary outline of the process for the Review. A further statement was issued on 24 December 2013 providing information about a conference that was to take place on 5 February 2014.

[3] The purpose of the 5 February conference was to commence the initial stage of the review. On 24 January 2014 an issues paper was made available on the website to assist in the facilitation of the conference. The issues paper also set out a number of draft propositions related to jurisdictional issues and called for submissions from interested parties on these propositions. At the 5 February conference the Commission outlined a process for the resolution of the jurisdictional issues canvassed in the issues paper. A transcript of the proceedings is available on the Review page of the Commission’s website. A number of parties indicated that they wished to make further submissions on the draft propositions and preliminary jurisdictional issues canvassed in the issues paper. In Directions issued on 6 February 2014, parties were invited to make any further submissions on the draft propositions and preliminary jurisdictional issues by 20 February 2014 and submissions in reply by 27 February 2014. The Commission received 47 submissions in response to the Issues Paper and 6 submissions in reply. A hearing took place on 6 March 2014. Prior to this hearing the Commission published a background paper which provided an overview of the parties’ submissions in response to the draft propositions.

[4] This decision deals with our findings regarding some of the preliminary jurisdictional issues related to the Review. It is unnecessary to attempt to summarise the parties’ submissions as this has already been done in the background paper.

The Review

[5] The FW Act provides that the Commission must conduct a 4 yearly review of modern awards (s.156(1)). Sub-section 156(2) deals with what has to be done in a Review:

[6] The Fair Work Amendment Act 2012 (the 2012 Amendment Act) amended s.156 by inserting s.156(2)(c). Note 2 at the end of s.156(2)(c) refers to a review in relation to default fund terms of modern awards. The 2012 Amendment Act also inserted a new division into the Act (Division 4A) dealing with 4 yearly reviews of default fund terms of modern awards. This review is separate to, and is outside the scope of, the 4 yearly review of modern awards. A separate Full Bench has been constituted to deal with the review required by Division 4A of the FW Act.

[7] Sub-sections 156(3) and (4) deal with the variation of modern award minimum wages in a Review:

[8] Sub-section 156(5) provides that in a Review each modern award is reviewed in its own right, however, this does not prevent the Commission from reviewing 2 or more modern awards at the same time.

[9] The Commission must be constituted by a Full Bench to conduct a Review and to make determinations and modern awards in a Review (see ss.616(1), (2) and (3) of the FW Act). Section 582 of the FW Act provides that the President may give directions about the conduct of a Review.

[10] In addition to s.156 a range of other provisions in the FW Act are relevant to the Review: s.3 (objects of the Act); s.55 (interaction with the National Employment Standards (NES)); Part 2-2 (the NES); s.134 (the modern awards objective); s.135 (special provisions relating to modern award minimum wages); Divisions 3 (terms of modern awards) and 6 (general provisions relating to modern award powers) of Part 2-3; s.284 (the minimum wages objective); s.577 (performance of functions and exercise of powers of the Commission); s.578 (matters the Commission must take into account in performing functions and exercising powers); and Division 3 of Part 5-1 (conduct of matters before the Commission).

[11] The general provisions relating to the performance of the Commission’s functions apply to the Review. Sections 577 and 578 are particularly relevant in this regard. Section 577 states:

[12] Section 578 states:

[13] In conducting the Review the Commission is also able to exercise its usual procedural powers, contained in Division 3 of Part 5-1 of the FW Act. Importantly, the Commission may inform itself in relation to the Review in such manner as it considers appropriate (s.590).

[14] As we have mentioned, s.156 sets out the requirement to conduct 4 yearly reviews of modern awards and what may be done in such reviews. Ascertaining the meaning of s.156 necessarily begins with the ordinary and grammatical meaning of the words used. 3 These words must be read in context by reference to the language of the Act as a whole and to the legislative purpose.4 Section 578(a) of the FW Act also directs attention to the objects of the FW Act and s.15AA of the Acts Interpretation Act 1901 requires that a construction that would promote the purpose or object of the FW Act is to be preferred to one that would not promote that purpose or object. The purpose or object of the FW Act is to be taken into account even if the meaning of a provision is clear. When the purpose or object is brought into account an alternative interpretation may become apparent. If one interpretation does not promote the object or purpose of the FW Act, and another does, the latter interpretation is to be preferred. Of course, s.15AA requires us to construe the FW Act, not to rewrite it, in the light of its purpose.5

[15] The discretion in s.156(2), to make determinations varying modern awards and to make or revoke modern awards in a Review, is expressed in general terms. But, as we have mentioned, context is important. As Mason J affirmed in K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd 6:

[16] The apparent scope of a discretion such as that in s.156(2) may be limited by other sections of the FW Act. The provisions of an act must be read together such that they fit with one another. This may require a provision to be read more narrowly than it would if it stood on its own. 8

[17] A number of provisions in the FW Act that are relevant to the Review operate to constrain the breadth of the discretion in s.156(2). It is important to observe at the outset that in exercising its powers in a Review the Commission is exercising ‘modern award powers’ (see s.134(2)(a)). This characterisation of a Review has important implications for the matters which the Commission must take into account in exercising its discretion in s.156(2) and for any determination arising from a Review.

[18] We now turn to consider the scope of the Review before turning to particular provisions dealing with modern awards which are relevant to the Review.

The Scope and Nature of the Review

[19] The Review is broader in scope than the Transitional Review of modern awards completed in 2013 (the Transitional Review). The legislative context for the Transitional Review was principally set out in Item 6 of Schedule 5 to the 9 the Transitional Act. A preliminary decision issued in June 2012 as part of the Transitional Review set out the scope and legislative context of that review. 9 The Full Bench explained how the Transitional Review would differ from the 4 yearly review of modern awards as follows:

[20] In their submission dated 20 February 2014, Ai Group submitted that even though the Review is broader in scope than the Transitional Review:

[21] Both the Australian Chamber of Commerce and Industry (ACCI) and Australian Business Industrial (ABI) challenged Ai Group’s submission, submitting that the FW Act does not provide any legislative basis for the adoption of a test such as that proposed by Ai Group. ACCI advanced the following submission in respect of the ‘cogent reasons’ requirement advanced by Ai Group:

[22] ABI generally accepted that submissions in support of award variations should be founded on merit based arguments that address the relevant legislative provisions, but contended that the procedure adopted by the Commission should reflect the nature of the issues involved. In some cases this approach may require a formal hearing with the presentation of evidence sufficient to move the Commission to exercise its discretion to vary a modern award. This is likely to be the case where a major change is sought to be made to a modern award and the proposal is contested. In other cases a formal hearing or evidence may not be necessary. Two examples were given of circumstances where a formal hearing or evidence would not be necessary:

[23] The Commission is obliged to ensure that modern awards, together with the NES, provide a fair and relevant minimum safety net taking into account, among other things, the need to ensure a ‘stable’ modern award system (s.134(1)(g)). The need for a ‘stable’ modern award system suggests that a party seeking to vary a modern award in the context of the Review must advance a merit argument in support of the proposed variation. The extent of such an argument will depend on the circumstances. We agree with ABI’s submission that some proposed changes may be self evident and can be determined with little formality. However, where a significant change is proposed it must be supported by a submission which addresses the relevant legislative provisions and be accompanied by probative evidence properly directed to demonstrating the facts supporting the proposed variation.

[24] In conducting the Review the Commission will also have regard to the historical context applicable to each modern award. Awards made as a result of the award modernisation process conducted by the former Australian Industrial Relations Commission (the AIRC) under Part 10A of the Workplace Relations Act 1996 (Cth) were deemed to be modern awards for the purposes of the FW Act (see Item 4 of Schedule 5 of the Transitional Act). Implicit in this is a legislative acceptance that at the time they were made the modern awards now being reviewed were consistent with the modern awards objective. The considerations specified in the legislative test applied by the AIRC in the Part 10A process is, in a number of important respects, identical or similar to the modern awards objective in s.134 of the FW Act. 14 In the Review the Commission will proceed on the basis that prima facie the modern award being reviewed achieved the modern awards objective at the time that it was made.

[25] Although the Commission is not bound by principles of stare decisis it has generally followed previous Full Bench decisions. In another context three members of the High Court observed in Nguyen v Nguyen:

[26] While the Commission is not a court, the public interest considerations underlying these observations have been applied with similar, if not equal, force to appeal proceedings in the Commission. 16 As a Full Bench of the Australian Industrial Relations Commission observed in Cetin v Ripon Pty Ltd (T/as Parkview Hotel) (Cetin)17:

[27] These policy considerations tell strongly against the proposition that the Review should proceed in isolation unencumbered by previous Commission decisions. In conducting the Review it is appropriate that the Commission take into account previous decisions relevant to any contested issue. The particular context in which those decisions were made will also need to be considered. Previous Full Bench decisions should generally be followed, in the absence of cogent reasons for not doing so.

The Modern Awards Objective

[28] The modern awards objective is set out in s.134 of the FW Act. It states:

[29] The modern awards objective applies to the performance or exercise of the Commission’s ‘modern award powers’, which are defined to include the Commission’s functions or powers under Part 2-3 of the FW Act. As we have mentioned the Review function in s.156 is in Part 2-3 of the FW Act and so will involve the performance or exercise of the Commission’s ‘modern award powers’. It follows that the modern awards objective applies to the Review.

[30] Section 134(1)(da) was inserted into the FW Act by the Fair Work Amendment Act 2013 and commenced on 1 January 2014. It is apparent from the submissions before us that the proper construction of s.134(1)(da) is a contentious issue and it is appropriate that this issue not be determined at this stage, but rather be addressed in the context of considering a specific proposal to vary a particular provision in a modern award.

[31] The modern awards objective is directed at ensuring that modern awards, together with the NES, provide a ‘fair and relevant minimum safety net of terms and conditions’ taking into account the particular considerations identified in paragraphs 134(1)(a) to (h) (the s.134 considerations). The objective is very broadly expressed. 19 The obligation to take into account the matters set out in paragraphs 134(1)(a) to (h) means that each of these matters must be treated as a matter of significance in the decision making process.20 As Wilcox J said in Nestle Australia Ltd v Federal Commissioner of Taxation:

[32] No particular primacy is attached to any of the s.134 considerations and not all of the matters identified will necessarily be relevant in the context of a particular proposal to vary a modern award.

[33] There is a degree of tension between some of the s.134(1) considerations. The Commission’s task is to balance the various s.134(1) considerations and ensure that modern awards provide a fair and relevant minimum safety net of terms and conditions. The need to balance the competing considerations in s.134(1) and the diversity in the characteristics of the employers and employees covered by different modern awards means that the application of the modern awards objective may result in different outcomes between different modern awards.

[34] Given the broadly expressed nature of the modern awards objective and the range of considerations which the Commission must take into account there may be no one set of provisions in a particular award which can be said to provide a fair and relevant safety net of terms and conditions. Different combinations or permutations of provisions may meet the modern awards objective.

[35] Section 138 of the FW Act is also relevant, it emphasises the importance of the modern awards objective in these terms:

[36] We deal later with the terms which may or must be included in a modern award. Relevantly, s.138 provides that such terms only be included in a modern award ‘to the extent necessary to achieve the modern awards objective’. To comply with s.138 the formulation of terms which must be included in modern award or terms which are permitted to be included in modern awards must be in terms ‘necessary to achieve the modern awards objective’. What is ‘necessary’ in a particular case is a value judgment based on an assessment of the considerations in s.134(1)(a) to (h), having regard to the submissions and evidence directed to those considerations. In the Review the proponent of a variation to a modern award must demonstrate that if the modern award is varied in the manner proposed then it would only include terms to the extent necessary to achieve the modern awards objective.

[37] Section 157 deals with making, varying or revoking a modern award ‘outside the system of 4 yearly reviews’. Given the scope of s.157 it is not directly relevant to the Review, but the use of the word ‘necessary’ in both s.138 and s.157(1) is instructive. Sub-section 157(1) is in the following terms:

[38] Under s.157(1) the Commission must be satisfied that ‘a determination varying a modern award ... is necessary to achieve the modern awards objective’ (emphasis added). In Shop, Distributive and Allied Employees Association v National Retail Association (No 2) (SDA v NRA (No 2)) 22 Tracey J considered the proper construction of s.157(1). His Honour held:

[39] We are satisfied that s.138 is relevant to the Review. We also accept that the observations of Tracey J in SDA v NRA (No.2), as to the distinction between that which is “necessary” and that which is merely desirable, albeit in a different context, are apposite to any consideration of s.138.

Terms of Modern Awards

[40] Any variation of a modern award arising from the Review must comply with the requirements of the FW Act which relate to the content of modern awards. Division 3 of Part 2-3 deals with the terms of modern awards, in particular terms that may or must be included in modern awards, and terms that must not be included in modern awards. This division also deals with the interaction between the NES and modern awards. These provisions are relevant to the Review. Any variation to a modern award arising from the Review must comply with s.136 of the FW Act and the related provisions which deal with the content of modern awards (ss.136–155 of the FW Act). Section 136 sets out what can and cannot be included in a modern award:

[41] Subdivision B sets out the terms which may be included in a modern award. Section 139 is the principal provision, it states:

[42] In addition to the matters set out in s.139 a modern award may also include outworker terms (s.140); industry specific redundancy schemes (s.141); and incidental and machinery terms (s.142).

[43] Subdivision C sets out the terms that must be included in a modern award, that is:

[44] Subdivision D (ss.150-155) deals with terms that must not be included in modern awards, for example objectionable or discriminatory terms (see ss.150 and 153); or terms about right of entry or dealing with long service leave (see ss.152 and 155). An ‘objectionable term’ is defined in s.12 to mean a term that:

[45] The FW Act does not define the word ‘discriminate’ or the expression ‘discriminate against’. The ordinary and natural meaning of the word ‘discriminate’ connotes the making of distinctions. 24 In the context of s.153(1) ‘discriminate’ involves the making of distinctions between employees whose employment is regulated by a modern award. Not all discrimination is proscribed. There are certain exclusions in subsections 153(2) and (3) and further, what is proscribed is discrimination against an employee25 (see generally SDA v NRA (No 2) (2012) 205 FCR 227 at 238-240).

[46] Further, subject to some limited exceptions a modern award must not include terms that contain state-based differences. Section 154 provides:

[47] Depending on the terms of a variation arising from the Review, certain other provisions of the FW Act may be relevant. For example, Division 3 of Part 2-1 of the FW Act deals with, among other things, the interaction between the NES and modern awards. These provisions will be relevant to any Review application which seeks to alter the relationship between a modern award and the NES. In particular s.55(4) provides that a modern award may include the following kinds of terms:

[48] The Review will also need to consider whether any existing term of a modern award is detrimental to an employee in any respect, when compared to the NES.

Exercising Modern Award Powers Outside the 4 Yearly Review and Annual Wage Review

[49] Division 5 of Part 2-3 (ss.157-161) of the FW Act deals with the exercise of powers outside 4 yearly reviews and annual wage reviews. These provisions are not relevant to the conduct of the Review but the Review process is not of itself a barrier to an application or determination being made under Division 5, provided the Commission is satisfied that the requirements of Division 5 have been met.

[50] We have already referred to s.157 for the purpose of construing s.138. Section 158 deals with who may apply for the making of a determination varying or revoking a modern award, or for the making of a modern award, under s.157.

[51] Section 159 deals with the variation of a modern award to update or omit the name of an employer, an organisation or an outworker entity. Section 160 provides that the Commission may vary a modern award to “remove an ambiguity or uncertainty or to correct an error”. These provisions continue to be available during the Review, either on application or on the Commission’s own initiative.

[52] In the event that the Review identifies an ambiguity or uncertainty or an error, or there is a need to update or omit the name of an entity mentioned in a modern award the Commission may exercise its powers under ss.159 or 160, on its own initiative. Of course interested parties will be provided with an opportunity to comment on any such proposed variation.

Division 6 of Part 2-3 of the FW Act

[53] The Review is a function or power under Part 2-3 and, by virtue of s.134(2)(a), it involves the exercise of modern award powers. Division 6 contains specific provisions relevant to the exercise of modern award powers, so much is clear from s.162 which states ‘This Division contains some specific provisions relevant to the exercise of modern award powers’. Further, the note appearing under s.156(2) makes reference to ss.163 and 164 (which are contained in Division 6). The note states: ‘special criteria apply to changing coverage of modern awards or revoking modern awards (see sections 163 and 164)’.

[54] If the Commission were to make a modern award or change the coverage of an existing modern award in the Review, then the requirements set out in section 163 must be satisfied, as follows:

[55] Section 164 deals with the revocation of modern awards:

[56] Section 165 and 166 apply to variation determinations arising from the Review:

[57] The effect of s.165 is clear. A variation to a modern award comes into operation on the day specified in the determination (the ‘specified day’). The default position is that the ‘specified day’ must not be earlier than the day on which the variation determination is made. In other words determinations varying modern awards generally operate prospectively and in relation to a particular employee the determination takes effect from the employee’s first full pay period on or after the ‘specified day’. Section 165(2) provides an exception to the general position that variations operate prospectively. It is apparent from the use of the conjunctive ‘and’ in s.165(2) that a variation can only operate retrospectively if the variation is made under s.160 (which deals with variations to remove ambiguities or uncertainties, or to correct errors) and there are exceptional circumstances that justify retrospectivity.

[58] Section 166 deals with the operative date of variation determinations which vary modern award minimum wages. It states:

[59] If a modern award is made or revoked arising out of the Review then s.49 of the FW Act is relevant, it states:

Summary

[60] On the basis of the foregoing we would make the following general observations about the Review:

The Next Step

[61] The Statement issued on 15 November 2013 provided an outline of the process for the Review. The Review is comprised of an initial stage, dealing with issues associated with the legislative framework, followed by an award stage. This decision marks the completion of the initial stage of the Review.

[62] In the award stage the 122 modern awards will be reviewed in four sequential stages. The list of awards assigned to each group has been published and the only remaining issue in contention is whether the Pharmacy Industry Award 2010 is to be moved from stage 2 to stage 4. We have considered the submissions filed in relation to this issue and we are not persuaded to change the allocation of this award, it will remain in stage 2. We confirm that the allocations are a matter of convenience and do not represent any conclusions about their terms relative to other awards in the group. Further, issues relating to the Pharmacy Industry Award 2010, including some raised by employers in that industry, may be dealt with as part of the later stages where appropriate. A final list of the awards allocated to each stage is set out at Attachment A.

[63] The Commission will release a draft document setting out how it proposes to conduct the award stage of the Review in the week commencing 14 April 2014. Interested parties will be given an opportunity to comment on this document before it is finalised. A conference in relation to the awards to be reviewed in stage 1 will be held on Tuesday 13 May 2014. Directions will be issued in due course.

PRESIDENT

Appearances:

T Clarke, J Dolan, and E McCoy for the Australian Council of Trade Unions.

A Bukarica and S Maxwell for the Construction, Forestry, Mining and Energy Union.

S Smith and B Ferguson for the Australian Industry Group.

D Grozier for the Australian Chamber of Commerce and Industry.

H Lepahe for Australian Business Industrial.

P Murdoch from the National Farmers Federation.

J Sweetman and T. E Evans for the Australian Hotels Association

C Cameron for the Recruiting and Consulting Services Association.

D Szrait for Master Grocers Australia.

W Chesterman for the Victorian Automobile Chamber of Commerce also appearing on behalf of the Motor Traders Association.

N Tindley, STB Group on behalf of the Australian Retailers Association.

S Elliffe for the National Retail Association.

K McGosh for the National Electrical Contractors Association.

M Nguyen for the Australian Manufacturing Workers’ Union.

M Butler for the Association of Professional Engineers, Scientists and Managers, Australia.

S Burnley for the Shop, Distributive and Allied Employees Association.

V Wiles for the Textile, Clothing and Footwear Union of Australia.

L Svendsen for the Health Services Union.

M Rizzo for the Australian Municipal, Administrative, Clerical and Services Union.

M Adler for the Housing Industry Association.

T Angelopoulos for the Horticulture Task Force.

A Mancini for the Australian Mines and Metals Association.

A Morris for the Coal Mining Industry Employer Group.

J Dennis for the Fair Work Ombudsman.

G Parkes for Restaurant and Caterering Australia.

S Crawford for the Australian Workers Union.

T McAuley for the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia.

N Swancott and C Aced for United Voice.

J Ghmrjestani for the Transport Workers’ Union of Australia.

G Johnston for the Australian Meat Industry Council.

D Neuze for the Australian Veterinary Association.

C McIlroy for the Local Government Associations of New South Wales and the State and Territory Local Government Associations.

C Delaney of the Australian Security Industry Association Limited.

J Shingles and E Larkin for the Australian Childcare Association and Australian Childcare Alliance.

S Stubbens for the Chamber of Commerce and Industry Queensland.

J O'Dwyer for Australian Master Electricians.

R Patterson for the Master Plumbers Association Queensland.

L Fraser and P Tyquin for the Traffic Management Association of Australia.

M Roddam and A Green for the Commonwealth.

K Mark and M Whelan for the Pharmacy Guild of Australia.

R Calver for Master Builders Australia.

S Hills for the South Australian Wine Industry Association.

P Stuckey-Clarke for the Australian Federation of Employers and Industry

Hearing details:

2014.

Melbourne: (with video links to Sydney, Adelaide, Canberra and Brisbane)

6, March.

ATTACHMENT A

Grouping of modern awards

Group 1 (30 awards)

Award code

Award title

MA000060

Aluminium Industry Award 2010

MA000098

Ambulance and Patient Transport Industry Award 2010

MA000054

Asphalt Industry Award 2010

MA000001

Black Coal Mining Industry Award 2010

MA000055

Cement and Lime Award 2010

MA000022

Cleaning Services Award 2010

MA000056

Concrete Products Award 2010

MA000024

Cotton Ginning Award 2010

MA000061

Gas Industry Award 2010

MA000062

Hydrocarbons Industry (Upstream) Award 2010

MA000010

Manufacturing and Associated Industries and Occupations Award 2010

MA000093

Marine Tourism and Charter Vessels Award 2010

MA000086

Maritime Offshore Oil and Gas Award 2010

MA000059

Meat Industry Award 2010

MA000011

Mining Industry Award 2010

MA000072

Oil Refining and Manufacturing Award 2010

MA000069

Pharmaceutical Industry Award 2010

MA000074

Poultry Processing Award 2010

MA000057

Premixed Concrete Award 2010

MA000108

Professional Diving Industry (Industrial) Award 2010

MA000109

Professional Diving Industry (Recreational) Award 2010

MA000037

Quarrying Award 2010

MA000015

Rail Industry Award 2010

MA000107

Salt Industry Award 2010

MA000016

Security Services Industry Award 2010

MA000053

Stevedoring Industry Award 2010

MA000017

Textile, Clothing, Footwear and Associated Industries Award 2010

MA000071

Timber Industry Award 2010

MA000089

Vehicle Manufacturing, Repair, Services and Retail Award 2010

MA000044

Wool Storage, Sampling and Testing Award 2010

Group 2 (19 awards)

Award code

Award title

MA000092

Alpine Resorts Award 2010

MA000118

Animal Care and Veterinary Services Award 2010

MA000114

Aquaculture Industry Award 2010

MA000110

Corrections and Detention (Private Sector) Award 2010

MA000111

Fire Fighting Industry Award 2010

MA000026

Graphic Arts Award 2010

MA000027

Health Professionals and Support Services Award 2010

MA000008

Horse and Greyhound Training Award 2010

MA000031

Medical Practitioners Award 2010

MA000034

Nurses Award 2010

MA000063

Passenger Vehicle Transportation Award 2010

MA000012

Pharmacy Industry Award 2010

MA000014

Racing Industry Ground Maintenance Award 2010

MA000039

Road Transport (Long Distance Operations) Award 2010

MA000038

Road Transport and Distribution Award 2010

MA000068

Seafood Processing Award 2010

MA000084

Storage Services and Wholesale Award 2010

MA000042

Transport (Cash in Transit) Award 2010

MA000043

Waste Management Award 2010

Group 3 (33 awards)

Award code

Award title

MA000019

Banking, Finance and Insurance Award 2010

MA000021

Business Equipment Award 2010

MA000002

Clerks–Private Sector Award 2010

MA000045

Coal Export Terminals Award 2010

MA000083

Commercial Sales Award 2010

MA000023

Contract Call Centres Award 2010

MA000085

Dredging Industry Award 2010

MA000075

Educational Services (Post-Secondary Education) Award 2010

MA000076

Educational Services (Schools) General Staff Award 2010

MA000088

Electrical Power Industry Award 2010

MA000094

Fitness Industry Award 2010

MA000101

Gardening and Landscaping Services Award 2010

MA000006

Higher Education–Academic Staff–Award 2010

MA000007

Higher Education–General Staff–Award 2010

MA000028

Horticulture Award 2010

MA000099

Labour Market Assistance Industry Award 2010

MA000116

Legal Services Award 2010

MA000112

Local Government Industry Award 2010

MA000050

Marine Towage Award 2010

MA000030

Market and Social Research Award 2010

MA000104

Miscellaneous Award 2010

MA000033

Nursery Award 2010

MA000035

Pastoral Award 2010

MA000051

Port Authorities Award 2010

MA000052

Ports, Harbours and Enclosed Water Vessels Award 2010

MA000106

Real Estate Industry Award 2010

MA000122

Seagoing Industry Award 2010

MA000040

Silviculture Award 2010

MA000082

Sporting Organisations Award 2010

MA000121

State Government Agencies Administration Award 2010

MA000087

Sugar Industry Award 2010

MA000041

Telecommunications Services Award 2010

MA000090

Wine Industry Award 2010

Group 4 (40 awards)

Award code

Award title

MA000115

Aboriginal Community Controlled Health Services Award 2010

MA000018

Aged Care Award 2010

MA000046

Air Pilots Award 2010

MA000047

Aircraft Cabin Crew Award 2010

MA000048

Airline Operations—Ground Staff Award 2010

MA000049

Airport Employees Award 2010

MA000080

Amusement, Events and Recreation Award 2010

MA000079

Architects Award 2010

MA000078

Book Industry Award 2010

MA000091

Broadcasting and Recorded Entertainment Award 2010

MA000020

Building and Construction General On-site Award 2010

MA000095

Car Parking Award 2010

MA000070

Cemetery Industry Award 2010

MA000120

Children’s Services Award 2010

MA000096

Dry Cleaning and Laundry Industry Award 2010

MA000025

Electrical, Electronic and Communications Contracting Award 2010

MA000077

Educational Services (Teachers) Award 2010

MA000003

Fast Food Industry Award 2010

MA000073

Food, Beverage and Tobacco Manufacturing Award 2010

MA000105

Funeral Industry Award 2010

MA000004

General Retail Industry Award 2010

MA000005

Hair and Beauty Industry Award 2010

MA000009

Hospitality Industry (General) Award 2010

MA000064

Hydrocarbons Field Geologists Award 2010

MA000029

Joinery and Building Trades Award 2010

MA000067

Journalists Published Media Award 2010

MA000081

Live Performance Award 2010

MA000117

Mannequins and Models Award 2010

MA000032

Mobile Crane Hiring Award 2010

MA000097

Pest Control Industry Award 2010

MA000036

Plumbing and Fire Sprinklers Award 2010

MA000065

Professional Employees Award 2010

MA000013

Racing Clubs Events Award 2010

MA000058

Registered and Licensed Clubs Award 2010

MA000119

Restaurant Industry Award 2010

MA000100

Social, Community, Home Care and Disability Services Industry Award 2010

MA000103

Supported Employment Services Award 2010

MA000066

Surveying Award 2010

MA000102

Travelling Shows Award 2010

MA000113

Water Industry Award 2010

 1   Section 2 of the Fair Work Act 2009.

 2   Ai Group submission, 20 February 2014 at paragraphs 3.1 and 3.2.

 3   Australian Education Union v Department of Education and Children’s Services (2012) 285 ALR 27 at [26].

 4   Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [69].

 5   Mills v Meeking (1990) 169 CLR 214 at 235 per Dawson J; R v L (1994) 49 FCR 534 at 538.

 6   (1985) 60 ALR 509 at 514.

 7   Also see Solution 6 Holdings Ltd v Industrial Relations Commission of NSW (2004) 208 ALR 328 at 348 per Spigelmann CJ.

 8   Ross v R (1979) 141 CLR 432 at 440; Commissioner of Stamps v Telegraph Investment Co Pty Ltd (1995) 184 CLR 453 at 479.

 9   [2012] FWAFB 5600.

 10   Modern Awards Review 2012 - Penalty Rates [2013] FWCFB 1635.

 11   Ai Group submission, 20 February 2014 at paragraph 4.6, also see paragraphs 4.2 to 4.5.

 12   ACCI submissions in reply at paragraph 3.6.

 13   See, by way of example, Motor Traders Association of New South Wales and others [2013] FWC 3714 at [31]-[32], BPL Adelaide Pty Ltd - Poultry Processing Award 2010 [2013] FWC 6174 at [33], Modern Awards Review 2012 - Annual Leave [2014] FWCFB 255.

 14   See Modern Awards Review 2012 [2012] FWAFB 5600 at [82] to [85].

 15   [1990] HCA 9; (1990) 169 CLR 245 at 269. Also see R v Moore; ex parte Australian Telephone and Phonogram Officers’ Association [1982] HCA 5; (1982) 148 CLR 600 (11 February 1982).

 16   Re Furnishing Industry Association of Australia (Queensland) Limited Union of Employers, Print Q9115, 27 November 1998 per Giudice J, Watson SDP, Hall DP, Bacon C and Edwards C.

 17   (2003) 127 IR 205 at [48].

 18   Also see Re Furnishing Industry Association of Australia (Queensland) Ltd Union of Employers, Print Q9115, 27 November 1998 per Giudice J, Watson SDP, Hall DP, Bacon C and Edwards C.

 19   See Shop, Distributive and Allied Employees Association v National Retail Association (No 2) (2012) 205 FCR 227 at [35] per Tracey J.

 20   Friends of Hichinbrook Society Inc v Minister for Environment (No 3) (1997) 77 FCR 153; Australian Competition and Consumer Commission v Leelee Pty Ltd [1999] FCA 1121; Edwards v Giudice [1999] FCA 1836.

 21   (1987) 16 FCR 167 at 184; cited with approval by Hely J in Elias v Commissioner of Taxation (2002) 123 FCR 499 at [62] and by Katzmann J in CFMEU v FWA (2011) 195 FCR 74 at [103].

 22   (2012) 205 FCR 227.

 23   Ibid at [35]-[37] and [46].

 24   HBF Health Funds Inc v Minister for Health and Ageing (2006) 149 FCR 291 at 295; Shop, Distributive and Allied Employees Association v National Retail Association (No 2) (2012) 205 FCR 227 at 239.

 25   Helal v McConnell Dowell Constructors (Aust) Pty Ltd (2010) 193 FCR 213 at [24].

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