[2015] FWCFB 8810

The attached document replaces the document previously issued with the above code on 24 December 2015.

Amended to insert additional matter number in preamble and insert Attachment 2.

Associate to the President, Justice Ross

Dated 4 January 2016

[2015] FWCFB 8810
FAIR WORK COMMISSION

DECISION



Fair Work Act 2009
s.156 - 4 yearly review of modern awards

4 yearly review of modern awards—Pastoral Award 2010
(AM2014/239 and AM2015/23)

 

JUSTICE ROSS, PRESIDENT
DEPUTY PRESIDENT KOVACIC
COMMISSIONER SAUNDERS

MELBOURNE, 24 DECEMBER 2015

4 yearly review of modern awards – Pastoral Award 2010 – crutching rates for rams and ram stags – ‘learner shearers’ – coverage – annualised salaries – woolclassers formula.

1. Background

[1] Section 156 of the Fair Work Act 2009 (Cth) (the Act) provides that the Commission must conduct a 4 yearly review of modern awards as soon as practicable after 1 January 2014 (the Review). As detailed in a Statement issued on 6 February 2014, 1 the Review consists of an Initial stage, dealing with jurisdictional issues, a Common issues stage and an Award stage. The Pastoral Award 2010 is in Group 3 of the Award Stage. This decision deals with a number of proposed variations to the Pastoral Award 2010 that have arisen in the context of the Award Stage of the Review. The relevant background may be shortly stated.

[2] A Statement issued on 23 January 2015 2 dealt with the programming of Group 3 and 4 awards as part of the Review. Initial conferences were held on 18 November 2014 and 30 March 2015 in relation to the Group 3 awards. Prior to the conference on 30 March 2015 interested persons were provided an opportunity to identify the nature of any changes they intend to propose during the review of Group 3 awards. The Commission subsequently published a summary of proposed variations in relation to each of the Group 3 awards.

[3] A mention was held on 29 April 2015 to discuss scheduling issues relating to the Pastoral Award 2010 and a Statement issued on 30 April 3 set out the initial process for dealing with various claims to vary the award.

[4] Parties were directed to file proposed draft determinations by 4 June 2015 outlining each variation they were seeking to the award during the Review and the matter was listed for a further mention and programming on 11 June 2015. Parties were encouraged to have discussions among themselves with a view to reaching agreement in relation to the respective claims and/or narrowing the issues in dispute.

[5] After the mention on 11 June 2015, directions were issued to deal with the substantive issues in relation to the Pastoral Award 2010. Subsequent discussions between the parties resolved the various issues in dispute and the variations now sought are generally supported by the National Farmers’ Federation (NFF), the Shearing Contractors Association of Australia (the Shearing Contractors) and The Australian Workers’ Union (AWU). Before turning to those proposed variations we will make reference to the relevant legislative context for the Review.

2. The Legislative context

[6] The matters we propose to briefly refer to about the legislative context for the Review are canvassed in more detail in the 4 yearly Review of Modern Awards: Preliminary Jurisdictional Issues decision4, we adopt and apply that decision.

[7] Subsection 156(2) deals with what must be done in the Review:

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

[9] The ‘scope’ of the Review was considered in the Preliminary Jurisdictional Issues Decision. 5

[10] 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 it was made. Variations to modern awards should be founded on merit based arguments that address the relevant legislative provisions, accompanied by probative evidence directed to what are said to be the facts in support of a particular claim. The extent of the argument and material required will depend on the circumstances.

[11] The modern awards objective (in s.134) 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 Act. The Review function in s.156 is in Part 2-3 of the 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. The modern awards objective is set out in s.134(1), as follows:

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

[13] Section 138 provides that terms only be included in a modern award ‘to the extent necessary to achieve the modern awards objective’. To comply with s.138 the terms included in modern awards must be ‘necessary to achieve the modern awards objective’. What is ‘necessary’ in a particular case is a value judgment taking into account the s.134 considerations, to the extent that they are relevant having regard to the submissions and evidence directed to those considerations. Before varying a modern award in the Review, the Commission must be satisfied that the variation is necessary to achieve the modern awards objective.

[14] While the Commission must take into account the various matters in s.134(1)(a) to (h), the relevant question is whether the variation proposed is necessary to achieve the modern awards objective. It is, however, not necessary to make a finding that the modern award under review has failed to satisfy at least one of the s.134(1) considerations. 6

[15] There are other aspects of the statutory provisions which are relevant in the context of the present matter. The first concerns the terms that can be or must be included in a modern award. Section 136 is relevant in this regard, it provides:

[16] Section 139(1) is in Subdivision B and deals with terms that may be included in modern awards. It provides, relevantly for present purposes, that:

[17] Section 163 is also relevant to one of the proposed variations and we deal with that provision later. We now turn to the substantive claims before us.

3. The Substantive Claims

[18] This decision deals with five substantive claims:

[19] The AWU, NFF and the Shearing Contractors are in agreement in respect of matters (i), (iii), (iv) and (v). Australian Business Industrial and the NSW Business Chamber Ltd (ABI) and Business SA do not oppose the variations sought in respect of these matters. There is also a measure of agreement in respect of the AWU’s proposed variation regarding ‘learner shearers’ (matter (ii)), but part of the variation sought is the subject of a reservation by the various employer organisations. We will come to that matter in due course.

[20] The AWU, NFF and the Shearing Contractors tendered a statement of agreed facts in relation to the claims in respect of the crutching rates for rams and rams stags and regarding learner shearers 7. A copy of that statement is set out at Attachment 1.

[21] The AWU is seeking to amend clause 45.2(d) of the award that provides special rates for crutching stud ewes and lambs by inserting the following additional special rate:

[22] The process of crutching is a limited kind of shearing, where wool is removed ‘from the crutch area of sheep for various purposes, such as to avoid infection from the blowfly; prior to lambing; to treat skin underneath; prior to sale or slaughter’. 9 The current award prescribes minimum rates for crutching in clause 45.2(a):

[23] Two other provisions of the current award are also relevant:

[24] At present the Pastoral Award 2010 does not specify a particular rate for crutching rams and ram stags, such work falls into the category of ‘All other crutching’. The AWU is proposing the insertion of an additional provision to the effect that double the minimum rates must be paid for crutching rams and ram stags. The NFF and the Shearing Contractors support the proposed variation. ABI does not oppose a variation in the form sought by the AWU. 10

[25] Two broad lines of argument are advanced in support of the variation proposed:

[26] The claim is supported by the uncontested evidence of four witnesses. 11 It is convenient to first deal with the relevant award history, before turning to the work value justification for the claim and the evidence.

[27] In 1907 O’Connor J, the President of the then Commonwealth Court of Conciliation and Arbitration, made an award in settlement of an industrial dispute in the pastoral industry dealing with, among other things, the rates of pay for shearers. The resultant award included the following term:

[28] The 1907 award did not deal with crutching, but in 1911 Higgins J made an award between substantially the same parties covering, among other things, shearing and crutching operations. In relation to crutching his Honour said:

[29] It is to be observed that at that time there was no claim for a higher rate for crutching rams and stag rams, though as his Honour recognised in prescribing a minimum for time payment, ‘in some cases there are reasons for crutching sheep with exceptional care’.

[30] In 1936 Delthridge CJ varied the Pastoral Award in relation to, among other things, the piece rates for crutching. The variation provided for double the flock rates for rams and stag rams, and 25 per cent above the flock rates for stud ewes and their lambs. The variation essentially reflected the agreed position as between the parties, as his Honour noted in his judgment.

[31] In 1965 Commissioner Donovan made a new award, in settlement of various disputes, to be known as the Pastoral Industry Award 1965 (the 1965 Award). The new award incorporated various increases in minimum wages, piece rates and allowances, and continued to provide that the rate for crutching rams and ram stags be double the rate prescribed for flock sheep. 15

[32] On 16 June 1987 Commissioner Merriman made an award 16- the Pastoral Industry Award 1986 (the 1986 Award) – which superceded the 1956 Award. The double rate for crutching rams and stag rams remained a term of the 1986 Award (at clause 15(a)(viii)).

[33] The definition of crutching and the piece rate applicable to lighter forms of crutching (eg the ‘New England crutch’) have been the subject of a number of arbitral decisions over the years 17, but the double rate for crutching rams and stag rams remained unaltered until 1996.

[34] It appears that the provision of double rates for crutching rams and ram stags was removed from the 1986 Award by an order of Commissioner Oldmeadow dated 24 June 1996. 18 The order sought to vary the 1986 Award to give effect to the October 1995 Third Safety Net Adjustment and Section 150A Review decision19. Prior to the order clause 15(a)(viii) of the 1986 Award provided:

[35] Commissioner Oldmeadow’s order deleted subclause 15(a) in its entirety and replaced it with a provision which omitted subclauses 15(a)(viii) and (x). It appears that the omission of these provisions was inadvertent, there is certainly nothing in the relevant decision to suggest that it was deliberate. 20

[36] On 30 June 1998, Commissioner Merriman issued the Allowable Matters decision in relation to the Pastoral Industry Award 1998. 21 Double rates for crutching rams and ram stags were not included in the 1998 Award, presumably because the provision had been removed from the predecessor award (the 1986 Award) in 1996. The transition to pre-reform awards and Australian Pay and Classification Scales from 27 March 2006 under the Work Choices legislative regime meant that the terms of the 1998 Award were effectively preserved. Award modernisation saw the terms of the pre-reform award dealing with rates for crutching adopted in the Pastoral Award 2010. There is no specific mention of crutching rates for rams and ram stags in the Statement22 accompanying the release of the exposure draft for the Pastoral Award 2010 or the subsequent Decision23 to make the Pastoral Award 2010.

[37] It is apparent that until the making of the 1998 Pastoral Industry Award double rates for crutching rams and ram stags had been a long standing award provision. It is also clear from the uncontested evidence of Messrs Hanlon 24; McCalman25; O’Connor26 and O’Hare27 that the current practice in the pastoral industry is that double rates are usually paid for crutching rams and ram stags.

[38] We now turn to the relevant provisions of the Act. As we have mentioned, s.134 (the modern awards objective) is applicable – that is, the Commission must be satisfied that the variation is necessary to ensure that the Pastoral Award 2010, together with the National Employment Standards, provide ‘a fair and relevant minimum safety net of terms and conditions’, taking into account the matters in s.134(1)(a) to (h), insofar as they are relevant.

[39] Further, when setting, varying or revoking a modern award minimum wages the minimum wages objective is also relevant. The minimum wages objective is set out in s.284, as follows:

[40] The provisions which specifically apply to the Review are in ss 156(3) and (4), which provide as follows:

[41] The AWU submits that subsections 156(3) and (4) do not apply to its proposal to vary the Pastoral Award 2010 to provide double the minimum rate for crutching rams and ram stags. It is submitted that ss.156(3) and (4) only apply to determinations ‘varying modern award minimum wages’ and that as the AWU’s claim seeks to set a minimum wage for crutching rams and ram stags, ss.156(3) and (4) have no application. It is on that basis that the AWU contends that the relevant statutory provision is the minimum wages objective in s.284.

[42] In support of its submission the AWU points to the difference in language between s.156(3) and s.284. Subsection 156(3) is directed at determinations made in the context of a 4 yearly review ‘varying modern award minimum wages’. The minimum wages objective applies to the Commission’s functions or powers in the Review ‘so far as they relate to setting, varying or revoking modern award minimum wages’ (s.284(2)(b)).

[43] It is plain from s.284(4) that the legislature intended there to be a distinction between setting and varying modern award minimum wages, as distinct meanings have been given to these terms. It follows from the difference in language between s.156(3), which only refers to ‘varying’ minimum wages, and s.284, which refers to ‘setting’, ‘varying’ or ‘revoking’ minimum wages, that there is some force in the AWU’s contention that s.156(3) does not apply to the setting or revoking of modern award minimum wages in the Review. But, for the reasons which follow, it is unnecessary for us to determine that issue in the present proceedings.

[44] Properly characterised the AWU’s proposal is not a claim to set a new modern award minimum wage for the crutching of rams and ram stags. Subsection 284(4) defines the setting of modern award minimum wages in terms of the ‘initial setting of one or more new modern minimum wages’. This is to be contrasted with the varying of modern award minimum wages which is defined as ‘varying the current rate of one or more modern award minimum wages’.

[45] The Pastoral Award 2010 already contains a minimum rate for the crutching of rams and ram stags, such work falls within the category of ‘All other crutching’. The AWU claim seeks to increase the rate currently prescribed for undertaking that work and on that basis is more aptly described as an application seeking a determination ‘varying modern award minimum wages’. Accordingly, contrary to the AWU’s submission, ss.156(3) and (4) are applicable to the claim to increase the minimum rate for crutching rams and ram stags. Further, as such a variation involves the Commission’s functions or powers under Part 2-3, the minimum wages objective is also applicable (s.284(2)).

[46] For completeness we would observe that even if s.156(3) did not apply to the current claim that would not necessarily mean that work value considerations were irrelevant to our consideration of the claim. It seems to us that such matters may well be relevant to the establishment of ‘a safety net of fair minimum wages’, as required by the minimum wages objective (s.284(1)). But it is unnecessary for us to express a concluded view on that issue and we do not propose to do so.

[47] Subsection 156(3) confers a discretion on the Commission to vary modern award minimum wages in a 4 yearly review of modern awards. The discretion is only enlivened if the Commission is satisfied that the variation is ‘justified by work value reasons’.

[48] As s.156(4) makes clear, work value reasons are ‘reasons justifying the amount that employees should be paid or doing a particular kind of work’. Work value reasons are reasons related to any of the following:

[49] The factors identified in s.156(4) are consistent with the considerations which have historically informed work value assessments by the Commission and predecessor tribunals. Such assessments call for the exercise of broad judgment. 28 As Munro J observed in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v HPM Industries29:

[50] It is common ground between the NFF, AWU and the Shearing Contractors that the variation of the Pastoral Award 2010 to provide for double rates for the crutching of rams and ram stags ‘is appropriate having regard to the nature of the work, the level of skill and responsibility and the conditions under which the work is done’. 30 The common position of the parties is supported by the uncontested evidence before us. The evidence supports the following findings:

[51] We are satisfied that the variation proposed is justified by work value reasons. We now turn to the minimum wages objective.

[52] The minimum wages objective requires the Commission to ‘establish and maintain a safety net of fair minimum wages’, taking into account the matters in s.284(1)(a) to (e), insofar as they are relevant. The considerations in s.284(1)(a) and (c) are relevant for present purposes.

[53] The impact of an increase in modern award minimum wages on the ‘performance and competitiveness of the national economy’ (s.284(1)(a)) will usually be relevant to the Commission’s consideration of any such claim, though the weight attributed to this matter will depend on the circumstances. In the context of this case it is common ground that the evidence supports a finding that despite the absence of an award provision the prevailing practice is to pay double rates for crutching rams and ram stags. It follows that the economic impact of making the variation proposed will be very limited. In these circumstances, while we have taken into account the matter in s.284(1)(a), we attach little weight to this consideration.

[54] Section 284(1)(c) requires that we take into account ‘relative living standards and the needs of the low paid’. In successive Annual Wage Review decisions the Expert Panel has accepted that award reliant employees who receive a rate of pay (as a full time equivalent) which would place them below two thirds of median adult ordinary time earnings, are ‘low paid’ within the meaning of s.284(1)(c) (and s.134(1)(a)). In the Annual Wage Review
2014-15 decision the Expert Panel provided a table which estimated two-thirds of median weekly earnings based on data from the two main ABS surveys of the distribution of earnings: the Employee Earnings, Benefits and Trade Union Membership (EEBTUM); and the Employee Earnings and Hours survey (EEH). 34

[55] The lack of contemporary data on the earnings of shearers makes it difficult to determine whether they are to be regarded as ‘low paid’ within the meaning of s.284(1)(c) (and s.134(1)(a)). The most recent data available on the earnings of full-time employee shearers appears to be that provided in the ABS, Australian Census of Population and Housing (Census 2011). 35 In the 2011 Census, 1,520 persons identified as being full-time employee shearers, with a further 743 as part-time employee shearers, 90 as employees who were away from work and 78 as employees whose hours of work were not stated.36 The estimated total weekly average personal income of full-time shearers was $945.72, in 2011.37

[56] The EEBTUM shows that two-thirds of median weekly earnings in 2011 was $733.33. 38 The proportion of full-time employee shearers whose total weekly personal income fell below the EEBTUM 2011 two-thirds median weekly earnings threshold of $733.33 was 17.2 per cent, while a further 21.2 per cent of full-time employees had incomes of $600–$799.39 It is not known what proportion of these employees earned below two-third median weekly earnings.

[57] The proportion of shearers below the two-thirds threshold (17.2 per cent) may underestimate the number of full-time employee shearers who are considered low-paid based on the two-thirds median of weekly earnings. The total personal income measure from the 2011 Census captures the total of all wages/salaries, government benefits, pensions, allowances and other income (such as interest) that the persons usually receives. The EEBTUM income measure is based solely on an employee’s wages/salary.

[58] In addition to the data limitations there is little presently before us about the contemporary working patterns and arrangements applicable to shearers. As an occupation shearing has historically had a number of distinct features. As Higgins J observed in 1911:

[59] While there have clearly been changes in shearing operations since 1911 – notably in technological advances and work organisation – it remains a seasonal and, to some extent, itinerant occupation.

[60] The submissions before us proceeded on the assumption that s.284(1)(c) and (s.134(1)(a)) were relevant and on that basis we are prepared to accept, for present purposes, that at least a significant proportion of shearers are ‘low paid’. The matter may be the subject of further debate in any subsequent proceedings. For present purposes it is sufficient to note that the variation proposed will increase the wages required to be paid to shearers who undertake this work and who are presently paid the ‘All other crutching’ rate specified in the award. As such the variation proposed takes account of the ‘needs of the low paid’.

[61] We turn briefly to the other s.284(1) considerations. We are not persuaded that the matters in s.284(1)(b), (d) and (e) are relevant to this particular issue.

[62] We are satisfied that making the variation proposed will ‘establish…a safety net of fair minimum wages’, as required by the minimum wages objective.

[63] We now turn to the modern awards objective.

[64] We note first that there is a degree of overlap between the considerations set out in ss.134 and 284. The following considerations in each provision are expressed in the same terms:

[65] Sections 134 and 284 each require the Commission to take into account a range of economic considerations, though they are differently expressed, for instance:

[66] In the Annual Wage Review 2014–15 decision 41 the Expert Panel considered the effect of these differences in expression and concluded as follows:

[67] While the above observation was made in the context of an Annual Wage Review it is also apposite to the matter before us. For the reasons given, the variation of the Pastoral Award 2010 to provide for double rates for crutching rams and ram stags will have very limited impact and in such circumstances the various economic considerations (s.134(1)(f) and (h)) do not weigh against making the variation proposed.

[68] We turn briefly to the other s.134(1) considerations. As we have mentioned in the context of our consideration of the minimum wages objective, we have taken into account the ‘needs of the low paid’ (s.134(1)(a)).

[69] The ‘need to encourage collective bargaining’ (s.134(1)(b)) is a neutral consideration in relation to this claim. No party contended otherwise. No party suggested that the variation of the award to reflect what largely occurs in practice would have any impact on collective bargaining.

[70] We are not persuaded that the matters in s.134(1)(c), (d), (da), (e) and (g) are relevant to this particular claim.

[71] We are satisfied that making the variation proposed is necessary to ensure that the Pastoral Award 2010, together with the National Employment Standards, provides ‘a fair and relevant minimum safety net of terms and conditions’, in accordance with s.134 of the Act.

[72] For the reasons given we are satisfied that the variation proposed is justified by work value reasons; is necessary to meet the modern awards objective; and will ‘establish…a safety net of fair minimum wages’ as required by the minimum wages objective. We will grant the claim sought.

[73] The AWU seeks to replace the current term dealing with ‘learner shearers’. The current award provision is:

[74] The AWU seeks to replace the above provision with the following:

LEARNER’S CERTIFICATE TO BE PRESENTED AT EACH SHEARING

Issued to ……………………………..

Home address ………………………………

Date of issue of certificate ………………………………….

Age ……………………………………..

[75] The underlined words are the subject of some contention between the various parties

[76] The NFF submit that there is merit in helping users to understand and apply the ‘learner shearer’ provisions, including through a definition of ‘learner’ and a mechanism to record the number of sheep shorn for the purpose of applying that definition.

[77] The NFF’s position is that the agreement between the parties 43 is reflected in the draft determination proposed by the AWU. The NFF agrees to the form of words proposed provided the Commission is satisfied that the ‘one in four term’ is a permitted matter. If the Commission is not satisfied on that point then the underlined sections set out above should be deleted to address that consequence.44

[78] The NFF’s principal concern is that some aspects of the proposed learner shearer term may not be about matters that can be included in modern awards under s.136 of the Act. In particular, the first sentence of proposed clause 44.4(ii) requires a fixed minimum allocation of stands for learner shearers. It provides as follows:

[79] The NFF contends that, properly characterised, the ‘one in four’ term is about limiting certain work areas to a particular use. This is said to be different to existing clause 49.7, which deals with the allotment of stands by outlining how stands will be allocated in practice to avoid disputes, without restricting their use during a shearing. So characterised it is submitted that the ‘one in four’ term is not about a matter that must be included in modern awards (ss.143 – 149D) and nor is it about a matter that may be included in modern awards (ss.139 – 141). Further, it is submitted that the ‘one in four’ term is not incidental to any of the subject matters that must or may be included in a modern award and nor is it essential for the purpose of making the term operate in a practical way (s.142); further, the term is more than a machinery term, in that it deals with substantive workplace conditions.

[80] The NFF also observes that the proposed learner shearer terms can operate practically and effectively without any limitation on the use of stands, by defining learner shearer, setting their minimum rate of pay and providing for records to be kept so that whether a person is a ‘learner shearer’ can be readily ascertained.

[81] We note that ABI and Business SA express similar concerns about the ‘one in four’ term.

[82] The Shearing Contractors submit that the inclusion of the ‘one in four term’ would be contrary to the following modern award objectives:

[83] The Shearing Contractors also contend, in the alternative, that the proposed wording for the ‘one in four’ term be amended, as follows:

[84] The AWU contends that the ‘one in four’ term is a term which may be included in a modern award on the basis that it is term about ‘career structures’ (one of the matters set out in s.139(1)) or, in the alternative, it is essential for the purpose of making other terms about learner shearers operate in a practical way, as permitted by s.142.

[85] We propose to deal first with the relevant award history before turning to the proposed term and the issue in contention.

[86] An award provision reserving a certain number of pens for ‘learners’ was first introduced in 1917. In Australian Workers Union v Pastoralists’ Federal Council of Australia and others 45, Higgins J determined as follows:

[87] As we mentioned earlier, in 1965 Commissioner Donovan made a new award – the 1965 Award – clause 22 of which dealt with the employment of learners, in the following terms:

[88] The 1965 Award was varied shortly after it was made to change the proportion of stands reserved for learners. Clause 22(b) was varied to provide:

[89] In the decision which made this variation Commissioner Donovan said,:

[90] The 1965 Award was later replaced by the 1986 Award. Clause 22 of the 1965 Award – the ‘Employment of Learners’ remained, largely unaltered, as clause 22 of the 1986 Award.

[91] Clause 22 was removed from the Pastoral Award when the award was modernised in 1998. The removal of clause 22 at that time was presumably on the basis that it dealt with a non allowable matter, but it is unclear from the relevant decision. The decision in question dealt with an application by the NFF to vary the 1986 Award pursuant to Item 49 of Part 2 of Schedule 5 of the Workplace Relations and Other Legislation Act 1996. The application was consented to by the employer and union parties to the award. In a short decision dealing with the application Commissioner Merriman states:

[92] While it may be inferred from the above extract that the award was varied to remove non allowable matters, there is no specific reference to clause 22.

[93] In relation to the issue in contention, it is common ground that the ‘one in four’ term is not a provision which must be included in a modern award. Hence the issue is whether it is a term which may be included, pursuant to s.139, or whether it is a term permitted by s.142.

[94] The AWU contends that the term is about ‘career structures’ as expressed in s.139(1)(a), which states:

[95] The Explanatory Memorandum to what became s.139(1)(a) states:

[96] As to s.142, it provides:

[97] Hence, to be permitted by s.142 we must be satisfied that the ‘one in four’ term is incidental to a term permitted by s.139(1) and is essential for the purpose of making a particular term operate in a practical way.

[98] During the course of the proceedings on 9 December 2015 we indicated that we would be seeking further submissions in relation to this aspect of the learner shearer claim 49 and that is the course we propose to adopt. Directions will be issued shortly setting out the timetable for such submissions and providing interested parties with an opportunity to reply to any submissions filed. We will finalise our consideration of this claim after taking into account any further submissions filed.

[99] Clause 4 of the Pastoral Award 2010 deals with the coverage of the award. Subclause 4.1 states:

[100] The ‘pastoral industry’ is defined in subclause 4.2, relevantly for present purposes, as follows:

[101] Clause 3.1 defines ‘broadacre field crops’ in the following terms:

[102] The definition of ‘broadacre field crops’ also appears in the definition of ‘broadacre mixed farming enterprise’:

[103] The NFF seeks to vary the definition of ‘broadacre field crops’ by replacing the current definition with the following text:

[104] To make the change easier to understand, it is also proposed that the following table be included in any annotated version of the Award, once made.

Examples of crops

Descriptor

canola, wheat, barley, oats, rice, triticale, maize, millet

Grains

canola seed, sunflower seed

Seeds

hay, sorghum

Grasses

mixed grasses and grains

Silage

hay, soybean, pigeon peas, lupins, lucerne, faba beans, chickpeas

Legumes

cotton

Fibre

sunflowers

Flowers

[105] The current definition seeks to define ‘broadacre field crops’ by reference to particular crops – such as canola and wheat – rather than using more generic descriptions such as ‘grains’ and ‘legumes’. The essence of the NFF’s submission is that the current definition is inflexible and does not reflect current farming practice. We agree.

[106] The production of broadacre field crops has increased substantially over the past 20 years. A December 2010 report by the Reserve Bank of Australia on ‘Trends in the Farm Sector’ concluded:

[107] The NFF submits that these developments support the need for flexibility in the provisions of the Pastoral Award 2010 which seeks to define these activities.

[108] The proposed variation is supported by the uncontested evidence of Mr Charlie Thomas. 51 According to Mr Thomas, ‘new and emerging crops are a feature of the Australian pastoral industry’.52 Two examples illustrate this point.

[109] The first is quinoa, a cereal that has recently become fashionable in the Australian consumer market as a ‘super food’. The first Australian commercial quinoa crop was grown in 2007 in Tasmania and seed trials of quinoa commenced in WA in 2013, as part of a Rural Industries Research and Development Corporation (RIRDC) funded project. An RIRDC Report of February 2015 53 concluded that a quinoa industry in Australia was ‘potentially viable’:

[110] In terms of the potential economic value of providing quinoa as a diversification option for farmers, the RIRDC concluded:

[111] The second example – alkaloid poppies – demonstrates how a new crop can expand over time. Poppies are grown commercially under licence for pharmaceutical production (primarily to produce morphine and related products) and cultivation is subject to a range of regulatory requirements.

[112] In the mid 1970’s Tasmanian Alkaloids Pty Ltd (later a subsidiary of Johnson & Johnson), contracted farmers to grow poppies in Tasmania and built a processing factory in northern Tasmania.

[113] There are now three poppy processors in Tasmania and over 800 growers with a total of 30,000 hectares of poppies under cultivation. The industry employs about 1000 people and grosses in excess of $100 million per annum. Tasmania is considered to be the most efficient (lawful) producer of poppies in the world, with the highest yield per hectare of any opiate producing country. 56 More recently, poppies are being grown commercially in Victoria and the Northern Territory.57

[114] We are satisfied that amending the definition of ‘broadacre field crops’ so that it describes crops grown in the pastoral industry in a generic way will ensure that new and emerging crops are within coverage of the Pastoral Award 2010.

[115] There are special rules in the Act dealing with the variation of coverage terms. Special rules apply to changing the coverage terms of modern awards. Section 163 provides:

[116] As the claim is for the variation of a modern award, s.163(2) is not relevant as it only applies to the making of a modern award. It is clear from the context that the legislature intended to draw a distinction between varying the coverage of an existing modern award and making a new modern award (compare ss 163(1) and (2), and the use of the words ‘make’ and ‘varying’ in s.163(3)).

[117] In the course of oral argument the NFF confirmed that the proposed change in the definition of ‘broadacre field crops’:

[118] We now turn to the modern awards objective. The considerations in s.134(1)(d), (f), (g) and (h) are particularly relevant. We have taken into account that the proposed variation to the definition of ‘broadacre field crops’ will:

[119] We are satisfied that making the variation proposed is necessary to ensure that the Pastoral Award 2010 achieves the modern awards objective. We will grant the claim sought.

[120] The NFF seeks a variation to the Award to insert a new annualised salaries clause, in the following terms:

[121] The claim is supported by the uncontested evidence of Ms Gracia Kusuma 59. Ms Kusuma is the Industrial Relations Manager of NSW Farmers Association and in that capacity supervises a team which provides advice and assistance to members on workplace relations matters. Some 4500 members have access to this service. The following aspects of Ms Kusuma’s evidence are particularly relevant:

[122] As we have mentioned, s.139(1)(f) permits the inclusion in modern awards of a term about annualised wage arrangements. However, s.139(1)(f) only permits annualised wage arrangements that meet certain criteria (set out in s.139(1)(f)(i) to (iii)), namely arrangements that:

[123] In support of its claim the NFF submitted that changing patterns of work due to seasonal variability and harvest peaks and troughs are prevalent in the pastoral industry, making it difficult to implement regular rosters and stable payment arrangements in many workplaces. It was submitted that for this reason ‘many employers implement annual salaries arrangements to provide predictability of cashflow and certainty of income for employees...’.

[124] The NFF submits that the proposed variation is necessary to ensure that the Pastoral Award 2010 achieves the modern awards objective:

[125] The proposed clause meets the requirements of s.139(1)(ii) and, on the basis of Ms Kusuma’s uncontested evidence, we are satisfied that the proposed clause has regard to the patterns of work in the pastoral industry (as required by s.139(1)(i)).

[126] However, a modern award can only include a term about annualised wage arrangements that, relevantly, includes ‘appropriate safeguards that ensure that individual employees are not disadvantaged’.

[127] The NFF submits that the proposed variation contains a number of safeguards to ensure that employees are not disadvantaged by the operation of the term, namely:

[128] Before turning to consider whether the proposed term includes ‘appropriate safeguards’ we propose to consider some of the relevant authorities and the legislative context.

[129] During the award modernisation process the Australian Industrial Relations Commission (the AIRC) did not generally insert annualised salary provisions into awards unless there was a widespread history of such provisions in the relevant antecedent instruments. 60 In its decision of 19 December 2008 the AIRC Award Modernisation Full Bench rejected the proposition that annualised payment arrangements be adopted as a general standard in modern awards, for the following reasons:

[130] Only 19 of the 122 modern awards contain an ‘annualised salaries’ term, 62 and in the modern awards which contain such a term it was usually the case that similar provisions were in the relevant pre-modernised instruments. Absent such a historical context the AIRC rejected a number of applications to insert provisions for annualised payment arrangements, for example in the Real Estate Industry Award 201063 and the General Retail Industry Award 201064.

[131] In most instances the annualised payment arrangement term inserted into a modern award reflected the form of such a term in relevant pre-modernised instruments and was included in the modern award by consent, or was unopposed. As a consequence the form and content of such terms was not the subject of much debate during the award modernisation process. There were two exceptions in this regard.

[132] First, in proceedings leading to the making of the Rail Industry Award 2010 the parties generally agreed on the insertion of an annualised salary term but disagreed on its contents. In its decision of 19 December 2008 the Award Modernisation Full Bench addressed this issue, in the following terms:

[133] The clause determined by the Award Modernisation Full Bench is at clause 18 – Annualised wage and salary arrangements – of the Rail Industry Award 2010, which states:

[134] It is to be noted that the clause determined by the AIRC included the following safeguards:

[135] The second instance where the content of the term was contested was in relation to the Clerks-Private Sector Award 2010.

[136] In November 2009 an application was made by the Australian Municipal, Administrative, Clerical and Services Union (ASU) to vary the Clerks-Private Sector Award 2010 to delete the ‘exemption clause’ in the award. In its decision concerning that application the Full Bench said: 66

[137] The Full Bench then proceeded to discuss the history of exemption provisions within clerical awards which had operated throughout Australia and made a number of other observations before concluding as follows: 67

[138] The annualised salaries clause determined by the Award Modernisation Full Bench is clause 17, which states:

[139] An annualised salaries clause in the same terms as that inserted in the Clerks—Private Sector Award 2010 was also inserted in the Banking Finance and Insurance Award 2010 68 and in the Mining Industry Award 2010.69

[140] The ASU made a subsequent application to vary clause 17 of the Clerks—Private Sector Award 2010 so that agreement between the employer and employee was required before any such arrangement could be entered into. In its decision dismissing that application the Full Bench said: 70

[141] A later Full Bench decision dealt with an application to vary the annualised salaries clause then in the Oil Refining and Manufacturing Award 2010. 71 The Full Bench noted that it was addressing a similar issue to that raised in the Clerks Award decision referred to above, namely whether the agreement of the employee should be required before an employer may pay that employee an annualised salary. The Full Bench decided to insert an annualised salaries clause in the same terms as had been inserted into the Clerks—Private Sector Award 2010, observing that annualised salaries for clerks were widespread in the oil industry and that the clause contained safeguards to ensure an employee is not disadvantaged by being remunerated by way of an annualised salary.72

[142] We note that in both the Clerks Award and the Oil Award the decisions turned on the circumstances pertaining in those industries.

[143] There are a number of other Commission decisions dealing with annualised salaries to which we wish to refer.

[144] As part of the two year review of modern awards pursuant to Item 6 of Schedule 5 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 1009 (Cth) (the Transitional Review), the ASU made applications to delete the annualised salaries clause in two modern awards – the Contract Call Centres Award 2010 and the Clerks – Private Sector Award 1010. Both applications were heard by Senior Deputy President Kaufman, and dismissed. 73

[145] In his decision in the Clerks – Private Sector Award 2010 the Senior Deputy President made some observations about the scope of the Transitional Review before giving his reasons for dismissing the application:

[146] The reasoning in respect of a similar application relating to the Contract Call Centres Award 2010, to which his Honour refers above, is as follows:

[147] There was an appeal from his Honour’s decision in the Clerks Award matter. In refusing permission to appeal the Full Bench made some observations about an ACTU submission regarding the proposition that annualised salaries arrangements should be entered into by agreement with the relevant employee and employer:

[148] Finally, in Re South East Water Corporation (SE Water) a Full Bench of the Commission inserted an annualised salaries term into the Water Industry Award 2010. 78 The relevant term applies to persons engaged at classification levels 9 and 10 and the Full Bench observed that ‘persons engaged at these two levels are principally in managerial positions and have traditionally been paid by way of an annual salary’.79

[149] In SE Water the form of the clause was in dispute. The applicant employer sought a clause in similar terms to that in the Clerks—Private Sector Award 2010, to which we have referred earlier. The ASU opposed the applicant’s proposed clause describing it as ‘a weak clause with inadequate safeguards’ 80 and submitted that the annualised salaries clauses in a number of other modern awards were to be preferred. The modern awards identified by the ASU included the Rail Industry Award 2010, to which we earlier referred; the Pharmacy Industry Award 2010; the Manufacturing and Associated Industries and Occupations Award 2010; Oil Refining and Manufacturing Award 2010; and the Broadcasting and Recorded Entertainment Award 2010.

[150] The Full Bench made the following observations about the ASU’s submissions:

[151] The Full Bench went on to consider the submissions put by the parties and to determine the content of the relevant clause, as follows:

[152] The clause inserted into the Water Industry Award 2010 provides as follows:

[153] Three general observations may be made about the decisions to which we have referred.

[154] First, the Commission has adopted a cautious approach to the insertion of annualised wage arrangements in modern awards. In the 21 modern awards that contain such a term it was usually the case that similar provisions formed part of the relevant pre-modernised instruments.

[155] Second, the safeguards that have been incorporated in annualised wage arrangement terms in modern awards have varied depending on the circumstances relating to the particular award.

[156] Third, the Review is broader in scope than the Transitional Review and as such is the first real opportunity to fully examine the appropriateness of the safeguards to be incorporated in such terms.

[157] We would also make some particular observations about the SE Water decision, as it is the most recent Full Bench decision dealing with this issue.

[158] The first point is that the SE Water decision is distinguishable from the matter presently before us in the following respects:

[159] The second point is that, contrary to the Full Bench’s observation in SE Water, the annualised salaries term in the Rail Industry Award 2010 was not inserted by consent but rather, as we have set out earlier, was the subject of a contested hearing.

[160] The final point we wish to make about the SE Water decision concerns the observation (at [34] of that decision) that it was unnecessary to specify that written records be kept because that issue was adequately regulated by Part 3-6 of the Fair Work Regulations 2009. For the reasons which follow there is cause to doubt the correctness of that observation.

[161] Employer obligations in relation to employee records and pay are set out in Division 3 of Part 3-6 of the Fair Work Regulations 2009. The requirements in respect of employee records are quite specific. For instance, there is a requirement to keep a copy of an individual flexibility arrangement entered into by an employer and employee (reg. 3.38) and if an employer gives a guarantee of annual earnings under s.330 of the Act, the guarantee is a kind of employee record that the employer must make and keep (reg. 3.39). There is no requirement to make and keep a record of an annualised wage arrangement.

[162] One of the purposes of annualised salaries is to provide income stability in circumstances where the hours worked fluctuates over the course of a year. As Senior Deputy President Polites observed in Re: Energy Developments Limited – AWU Hydrocarbon Gas and Energy Award:

[163] To ensure that employees are not disadvantaged by such arrangements the relevant term usually provides that the annual salary must be no less than the amount the employee would have been entitled to receive under the rates and allowances prescribed by the award. The modern award term may also provide for the review of any annual salary to ensure that it is appropriate having regard to the award provisions which are satisfied by its payment. These two elements are features of the NFF’s proposed clause.

[164] Inherent in these safeguards is the notion that the annualised wage paid can be compared to what the employee would have been paid had all of the provisions of the modern award applied. In other words, to ensure an employee is not disadvantaged the annualised wage paid must be capable of being compared to what the employee would have received if the annualised wage arrangement was not in place. Such a comparison necessarily requires that records be kept of the allowances, overtime and penalty rates that would have been payable.

[165] The difficulty is that where an employee is paid pursuant to an annualised wage term in a modern award it is unclear whether there is a requirement to keep an employee record in respect of, for example, overtime hours worked.

[166] Regulation 3.34 deals with the requirement to make and keep employee records in respect of overtime by an employee, it provides:

[167] Regulation 3.34 only requires an employee record to be made and kept if ‘a penalty rate … must be paid for overtime hours actually worked by an employee’. The essence of an annualised wage arrangement is that penalty rates for overtime hours do not need to be paid, because they are comprehended within the annualised wage. It would seem to follow that if an annualised wage arrangement is in place then there is no requirement to make and keep an employee record of the number of overtime hours worked by the employee each day.

[168] A similar issue arises in relation to recording any entitlements to allowances or penalty rates. Regulation 3.33 provides as follows:

[169] As appears to be the case with overtime records, the obligation to make and keep an employee record of allowances or penalty rates only arises if the employee is ‘entitled to be paid’ such payments.

[170] The matters we have identified highlight the need for careful consideration to be given to the ‘appropriate safeguards’ to be incorporated in an annualised wage arrangements term to ‘ensure that individual employees are not disadvantaged’ (as required by s.139(1)(f)(iii)). We propose to give further consideration to this issue. We will issue a Statement in due course setting out some provisional views as to the content of an appropriate annualised wage arrangement term for insertion into the Pastoral Award 2010. Interested parties will be given an opportunity to comment and the matter will be the subject of a further hearing.

(vi) Woolclassers formula

[171] The variation proposed to the ‘woolclassers formula’ is a technical rather than substantive amendment and is intended to resolve an issue which arises when the minimum rates in the award are adjusted following an Annual Wage Review decision. The rates applicable to a woolclasser level 2 illustrate the issue.

[172] Woolclassers are either paid a weekly minimum rate or by a pieceworker rate. Clause 45.8(a) provides that the minimum weekly rate for a woolclasser level 2 is $1298.45. Clause 45.8(a)(ii) sets out how this minimum rate is calculated:

[173] The piecework rate applicable to a woolclasser is set out in clause 45.8,:

[174] This piecework rate then applies per 1000 sheep and/or lambs (see clause 45.6(a)).

[175] Clause 45.8(f) contains the formula for calculating various woolclassers’ allowances,:

[176] While expressed as applying to ‘employees who do not receive piecework rates’ the formula in clause 45.8(f) is in fact also relevant to woolclassers who are remunerated by piecework. This is so because the piecework rate formula is simply a proportion of the minimum weekly rate (see clause 45.8 above), and the weekly rate includes both the base rate and allowances relevant to the woolclasser’s level of skill, experience and responsibility.

[177] The short point is that the allowances applicable to woolclassers are factored into the relevant piecework rate because that rate is calculated by reference to the woolclassers formula (which incorporates the relevant allowances) and the NFF submits that the award should be varied to reflect this position. 85

[178] The NFF seeks a variation to clause 45.8(f) of the Award to replace the following sentence:

(f) Woolclassers allowances formula

[179] The approach proposed is consistent with that taken in other parts of the Pastoral Award 2010, where formulas are used to explain how particular rates of pay, including piecework payments, are calculated. For example:

[180] The NFF submits that the proposed variation ‘will ensure that the text of the Award reflects both the intention and practical operation of the Woolclassers formula, so that all parties adopt the same formula when calculating adjustments to Woolclassers allowances following the Annual Wage Review’. 86

[181] We now turn to the modern awards objective.

[182] The proposed variation will make the award simpler and easier to understand which takes account of the matter in s.134(1)(g). We are not persuaded that the matters specified in s.134(1)(a), (b), (c), (d), (e), (f) and (h) are relevant to this particular claim.

[183] We are satisfied that the variation proposed is necessary to ensure that the Pastoral Award 2010 achieves the modern awards objective. We will grant the claim sought.

4. Next Steps

[184] For the reasons given we propose to vary the Pastoral Award 2010 to grant the claims made in relation to:

[185] A draft variation determination giving effect to our decision is set out at Attachment 2 and will be posted on the 4 Yearly Review of Modern Awards website. Interested parties will have until 4pm Friday 5 February 2016 to comment on the draft variation determination.

[186] Further submissions are sought in relation to the ‘one in four’ aspect of the AWU’s learner shearer claim. Directions will be issued shortly setting out the timetable for such submissions and providing interested parties with an opportunity to reply to any submissions filed.

[187] In relation to the NFF’s claim to insert an annualised wage arrangements term into the award, we will issue a Statement in due course setting out some provisional views as to the content of such a term. Interested parties will be given an opportunity to comment and the matter will be the subject of a further hearing.

[188] There is one final matter. A typographical error in clause 45.2(d) requires rectification. Clause 45.2(d) provides:

[189] The cross reference to clause 45.1(a) should be to clause 45.2(a). A correction order was made on 12 December 2013, 87 but has not been translated into the published award or the exposure draft. We will take steps to ensure that this is done.

PRESIDENT

<Price code J, PR575275>

Appearances:

S Crawford for The Australian Workers’ Union

S McKinnon for the National Farmers’ Federation

J Arndt for Australian Business Industrial and the New South Wales Business Chamber

Hearing details:

Sydney.

2015.

December 9.

Attachment 1

MATTER AM2014/239 4 yearly review of the Pastoral Award 2010

STATEMENT OF AGREED FACTS BETWEEN THE AWU, NFF AND SCAA REGARDING THE CRUTCHING OF RAMS AND RAM STAGS AND LEARNER SHEARERS

Background

This document contains a statement of agreed facts between the following parties:

The document has been prepared in support of variations sought by the parties on a consent basis to the Pastoral Award 2010 2010.

Crutching rates for rams and ram stags

The parties agree that:

Learner shearers

The parties agree that:

Attachment 2 – Draft determination


MA000035  PRXXXXXX

DRAFT DETERMINATION



Fair Work Act 2009
s.156 - 4 yearly review of modern awards

4 yearly review of modern awards
(AM2014/239 and AM2015/23)

PASTORAL AWARD 2010
[MA000035]

Agricultural industry

JUSTICE ROSS, PRESIDENT
DEPUTY PRESIDENT KOVACIC
COMMISSIONER SAUNDERS

MELBOURNE, XX MONTH 2016

4 yearly review of moderns awards – award stage – review of Pastoral Award 2010 – substantive issues.

A. Further to the Full Bench Decision issued on 24 December 2015 [[2015] FWCFB 8810], the above award is varied as follows:

1. By deleting the definition of ‘broadacre field crops’ in clause 3.1 and inserting the following:

broadacre field crops means grains, seeds, grasses, silage, legumes, fibre, flowers,
and other crops grown as part of a broadacre mixed farming enterprise

2. By deleting clause 45.2(d) and inserting the following:

(d) Special crutching rates

3. By deleting clause 45.8(f) and inserting the following:

(f) Woolclassers allowances formula

B. This determination comes into operation from xx month 2016. In accordance with s.165(3) of the Fair Work Act 2009 this determination does not take effect until the start of the first full pay period that starts on or after xx month 2016.

PRESIDENT

 1   [2014] FWCFB 916

 2   [2015] FWC 618

 3   [2015] FWC 2985

4 [2014] FWCFB 1788.

 5   Ibid

 6   National Retail Association v Fair Work Commission [2014] FCAFC 118 at [110]

 7   Joint Exhibit 1

 8   Rams are male sheep that are more than six months old and ram stags are rams that have been castrated when they are 18 months or older: clause 3 – Definitions and interpretation, Pastoral Award 2010.

 9   Pastoral Industry Award 1986, Print J9497, 26 September 1991 at page 1

 10   Transcript at paragraph 85

 11   Leslie Hanlon, Exhibit AWU 1; Victor McCalman, Exhibit AWU 2; Terry O’Connor, Exhibit AWU 3; and Danny O’Hare, Exhibit AWU 4.

 12   Australian Workers’ Union v The Pastoralists’ Federal Council of Australia and others (1905-1907) 1 CAR 62 at 69-70 and 103

 13   The Australian Workers Union v The Pastoralists Federal Council and others (1911) 5 CAR 48 at 88-90

 14   Grazier’s Association of New South Wales and others v Australian Workers Union (1936) 36 CAR 295 at 296

 15   Pastoral Industry – Award-Wages and working conditions (1965) 110 CAR 422 at 443, clause 14(a)(viii)

 16   Print G6783

 17   eg Graziers Association of New South Wales and others v Australian Workers Union (1937) 37 CAR 449; NSW Farmers’ (Industrial) Association and others v Australian Workers Union, Print J9497, 26 September 1991 per Peterson J, MacBean DP and Grimshaw C.

 18   Pint N2255, 24 June 1996 per Oldmeadow C

 19   Print M5600

 20   See Print N2254, 4 June 1996 per Oldmeadow C

 21   Re Pastoral Industry Award 1986 Q3186 (30 June 1998) per Merriman C

 22   Award Modernisation Statement [2009] AIRCFB 50 at [24]

 23   Award Modernisation Decision [2009] AIRCFB 345 at [54] to [59]

 24   Exhibit AWU 1 at paragraph 5

 25   Exhibit AWU 2 at paragraphs 7–8

 26   Exhibit AWU3 at paragraphs 8–9

 27   Exhibit AWU4 at paragraphs 14-15

 28   (1972) 147 CAR 172 at 179-180; cited with approval in the Equal Remuneration decision 2015 [2015] FWCFB 8200 at [280]

 29   Print Q1002, 19 May 1998

 30   Joint Exhibit 1 at paragraph 11

 31   O’Hare statement Exhibit AWU 4 at paragraphs 6 and 7

 32   Hanlon statement Exhibit AWU 1 at paragraph 7; McCalman statement Exhibit AWU 2 at paragraph 10; and O’Hare statement Exhibit AWU 4 at paragraph 11

 33   O’Hare statement Exhibit AWU 4 at paragraphs 8–12

 34   Annual Wage Review 2014-15 decision [2015] FWCFB 3500 at paragraph [316]

 35   The 2011 Census was identified as the only known source that could provide income data for shearers at the required 4-digit level

 36   Australian Bureau of Statistics, Census of Population and Housing, 2011. Employees whose total personal income was not stated, or was negative, were excluded

 37   Australian Bureau of Statistics, Census of Population and Housing, 2011

 38   ABS, employee Earnings, Benefits and Trade Union membership, Australia, 2011, Catalogue No. 6310

 39   Ibid

 40   The Australian Workers Union v The Pastoralists Federal Council and others (1911) 5 CAR 48 at 74-75

 41   [2015] FWCFB 3500

 42   Ibid at [89]

 43   ie the AWU, NFF and the Shearing Contractors

 44   Transcript at paragraph 19

 45   (1917) 11 CAR 409

 46   Ibid at 409

 47   Pastoral Industry-Award-Wages and working conditions (1965) 110 CAR 422 at 446

 48   The Australian Workers’ Union v The Graziers’ Association of New South Wales and others (1967) 121 CAR 454 at 464

 49   Transcript at paragraph 92

 50   Rayner V. Tan N and Ward N. (2010) ‘Trends in Farm Sector Outputs and Exports’, RBA Bulletin December Quarter 2010 at p.8

 51   Exhibit NFF 1

 52   Ibid at paragraph 9

 53   RIRDC (2015) ‘New and emerging plant industries three year RD & E plan: January 2015 to June 2018, publication No. PRJ-009205; Attachment E to Exhibit NFF 1

 54   Ibid at p.40

 55   Ibid at p.39

 56   Victorian Parliamentary Library and Information Services (2014) Research Brief No. 3: Drugs, Poisons and Controlled Substances (Poppy Cultivation and Processing)Amendment Bill 2013; Attachment D to Exhibit NFF 1

 57   Exhibit NFF 1 at paragraph 7

 58   Transcript at paragraphs 100-122

 59   Exhibit NFF 2

 60   Re Application by the National Retail Association to vary the General Retail Industry Award 2010 [2010] AIRCFB 1958 at [6]

 61   [2008] AIRCFB 1000 at [69]-[70]

 62   Banking, Finance and Insurance Award 2010; Broadcasting and Recorded Entertainment Award 2010; Clerks – Private Sector Award 2010; Contract Call Centres Award 2010; Hospitality Industry (General) Award 2010; Hydrocarbons Industry (Upstream) Award 2010; Legal Services Award 2010; Local Government Industry Award 2010; Manufacturing and Associated Industries and Occupations Award 2010; Marine Towage Award 2010; Mining Industry Award 2010; Oil Refining and Manufacturing Award 2010; Pharmacy Industry Award 2010; Rail Industry Award 2010; Restaurant Industry Award 2010; Salt Industry Award 2010; Telecommunications Services Award 2010; Water Industry Award 2010; Wool Storage, Sampling and Testing Award 2010

 63   [2009] AIRCFB 945

 64   [2010] FWAFB 1958

 65   [2008] AIRCFB 1000 at paragraphs [256]-[258]

 66  [2009] AIRCFB 922.

 67   Ibid at [21].

 68   [2009] AIRCFB 923

 69   [2009] AIRCFB 958

 70   [2010] FWAFB 969.

 71   MA000072.

 72   [2010] FWAFB 1805.

 73   Re Contract Call Centres Award 2010 [2012] FWA 9025; Motor Traders’ Association of New South Wales and others [2012] FWA 9731

 74   [2012] FWA 9731 at [15], [67]-[75]

 75   [2012] FWA 9025 at [21]-[46]

 76   Fair Work Act 2009 (Cth) s.139(1)(b)

 77   Re Clerks – Private Sector Award 2010 [2010] FWAFB 969

 78   [2014] FWCFB 5195

 79   Ibid at [22]

 80   Ibid at [26]

 81   ASU 1 paragraph 7.

 82   [2014] FWCFB 5195 at [27]

 83   Ibid at [30]-[36]

 84   PR915956

 85   Transcript at paragraphs 141-143

 86   NFF written submission 6 August 2015 at paragraph 78

 87   See PR545345

 88   Re Pastoral Industry Award 1986 Q3186 (30 June 1998) per Merriman C

 89  

Printed by authority of the Commonwealth Government Printer

Judgment – Pastoral Industry (20 August 1948), 31.

 90   Re Pastoral Industry Award 1986 Q3186 (30 June 1998) per Merriman C