[2015] FWCFB 7376
FAIR WORK COMMISSION

DECISION


Fair Work (Transitional Provisions and Consequential Amendments) Act 2009

Item 4 Sch. 6—Modern enterprise award

GrainCorp Operations Limited
(EM2013/33)

SENIOR DEPUTY PRESIDENT HARRISON
DEPUTY PRESIDENT SAMS
DEPUTY PRESIDENT BULL

SYDNEY, 27 NOVEMBER 2015

Application to make a modern enterprise award to replace several enterprise instruments - Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 Schedule 6 - Fair Work Act 2009 ss. 134, 284 - application granted - modern enterprise award will be made.

[1] GrainCorp Operations Limited (GrainCorp or the applicant) has applied under item 4 of Schedule 6 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) (the Transitional Act) for modern enterprise awards to be made to replace eight enterprise instruments (the GrainCorp Awards), being the:

[2] The application was subsequently amended so that the applicant only sought a modern enterprise award to replace the Queensland Award, the Grain Elevators Award and the Bulk Handling Award.

[3] We note that GrainCorp is not itself respondent to the Queensland Award. Rather, it acquired the employer respondent, Grainco Queensland Co-operative Association Limited, in 2003. 9 Further, we note that the Grain Elevators Board, Victoria, which was the employer respondent to the Grain Elevators Award,10 became GrainCorp in 1992.11 In its final form, the making of a modern enterprise award in the terms sought by the applicant was supported by the Australian Workers’ Union (AWU) and not opposed by any other union or person.

[4] In the hearing before us, Mr Salmon appeared for GrainCorp. Ms Gherjestani appeared for the AWU. Mr Nguyen appeared for the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU). Mr Keats appeared for the Maritime Union of Australia (MUA). The National Union of Workers (NUW) did not appear at the hearing, but was represented at subsequent conferences by Mr Snowball.

[5] We have decided to make a modern enterprise award. These are our reasons for that decision.

The legislative task

[6] We commence by noting that other than modern enterprise awards made under Schedule 6 of the Transitional Act, no new enterprise awards will be made. This is the effect of s.168C of the Fair Work Act 2009 (Cth) (the Act), which is contained within Part 2-3—Modern awards. It provides that the Fair Work Commission (the Commission) must not, under that Part, make a modern enterprise award or vary an award so that it becomes a modern enterprise award. There is no other Part of the Act under which a modern enterprise award may be made.

[7] The approach to be taken by the Commission when deciding whether to make a modern enterprise award and, if so, the terms of that award, is governed by several items of Schedule 6 of the Transitional Act (Schedule 6). The first is item 4(5), which provides:

[8] Item 6 of Schedule 6 provides that the modern awards objective 12 and the minimum wages objective13 apply to the making of a modern enterprise award. We must also consider the modern enterprise awards objective, which is set out in item 6(2) of Schedule 6. That requires the Commission to “recognise that modern enterprise awards may provide terms and conditions tailored to reflect employment arrangements that have been developed in relation to the relevant enterprises”.

[9] In the decision in Coleambally Irrigation Co-operative Limited v The Australian Workers’ Union & Ors 14 (Coleambally), the Commission referred to relevant extracts of Federal Court of Australia judgments in which the provisions of Schedule 6 were considered.15 They were of a single judge and that of a Full Court on appeal. Both are titled Yum! Restaurants Australia Pty Ltd v Full Bench of Fair Work Australia (Yum Restaurants).16 We acknowledge that the extracts set out the approach we should take to the relevant items in Schedule 6. We also note the more recent Federal Court judgment in CSR Limited v CSR & Holcim Staff Association.17 The Full Court there also considered the provisions of Schedule 6. That judgment does not require us to revisit the correctness of the extracts taken from Yum Restaurants, but serves to remind us of the need to consider the modern awards objective in deciding whether to make an enterprise award and, if we do so, the terms of such an award.

[10] We are also required to consider item 7(1) of Schedule 6. It relevantly provides that Division 3 of Part 2-3 of the Act applies to a modern enterprise award which may be made. Sections of the Act in that Division deal with terms which either may, or must, be in modern awards.

The Viterra decision

[11] In Viterra Australia Ltd v AWU and MUA 18 (Viterra), the Full Bench decided to make a modern enterprise award. That decision also relates to the grain handling industry and many of the reasons given for that decision are also relevant to this matter. In particular, the nature of the industry as described in that decision and the need to maintain award provisions that accommodate its peculiar circumstances apply, with equal force, to this application.

The considerations in item 4(5) of Schedule 6

[12] We now turn to consider each of the matters in item 4(5) of Schedule 6. We indicate that some of the considerations addressed under one item are also relevant considerations under other items.

The circumstances that led to the making of the Queensland Award, the Grain Elevators Award and the Bulk Handling Award rather than an instrument of more general application: item 4(5)(a)

[13] We have taken into account the detailed submission made by GrainCorp about what it described as the extensive and complex history behind the relevant awards, the impact of the span of its operations across different states and the volatile nature of the grain handling industry.

[14] We have also considered all of the applicant’s submissions about the relevant historical matters in respect of each of the GrainCorp Awards which have been revealed as part of its investigation of files contained within the Commission’s registry. It appears that the enterprise-specific terms and conditions they contain were generally created by consent between the relevant parties. We accept that the following matters appear to have been influential in shaping the development of the GrainCorp Awards:

Whether there is a modern award (other than the miscellaneous modern award) that would, but for the Queensland Award, the Grain Elevators Award and the Bulk Handling Award, cover the persons who are covered by the Queensland Award, the Grain Elevators Award and the Bulk Handling Award…: item 4(5)(b)

[15] There is no single modern award that would, but for the GrainCorp Awards, cover the applicant and its relevant employees. The applicant submitted that, depending on the duties being performed, the relevant persons may be covered by the following modern awards:

[16] In our consideration of this matter, we also note as relevant the comments we made at paragraphs [16] and [17] of Viterra. 25

The content, or likely content, of the modern award referred to in paragraph (b)…: item 4(5)(c)

[17] We have taken into account the applicant’s submissions about the content of the modern awards we have listed in paragraph [15]. It is sufficient for us to note that they differ significantly in respect of employee classifications and duties, hours of work arrangements, casual employment, shiftwork and rostering.

The terms and conditions of employment applying in the industry in which the persons covered by the Queensland Award, the Grain Elevators Award and the Bulk Handling Award operate, and the extent to which those terms and conditions are reflected in those awards: item 4(5)(d)

[18] The Full Bench in Viterra 26 addressed this item at paragraphs [23] to [25]. We do not repeat those comments but note that there has now been a decision by a Full Bench in Viterra to make a modern enterprise award27 for its bulk handling and storage of grains, pulses and minerals activities.

The extent to which the Queensland Award, the Grain Elevators Award and the Bulk Handling Award provide enterprise-specific terms and conditions of employment: item 4(5)(e)

[19] We accept the applicant's submission that its operational needs are highly seasonal and workloads vary significantly throughout the year. It requires flexible working arrangements, particularly around grain harvesting season. We have taken into account all of the applicant’s submissions about the specific provisions contained in the relevant awards which it seeks to be replaced by a modern enterprise award. 28

The likely impact on the persons covered by the Queensland Award, the Grain Elevators Award and the Bulk Handling Award and the persons covered by the modern award referred to in paragraph (b), of a decision to make, or not make, the modern enterprise award, including any impact on the ongoing viability or competitiveness of any enterprise carried on by those persons: item 4(5)(f)

[20] The likely impact on GrainCorp and persons covered by the relevant GrainCorp Awards of a decision to make a modern enterprise award is that they would continue to be covered by a specific enterprise award which will become the new safety net. Its terms would not be less beneficial to the employees to be covered. It would also maintain the flexibilities sought by the applicant.

[21] There is not likely to be any impact, certainly not any negative impact, on persons covered by the relevant modern awards of a decision to make a modern GrainCorp enterprise award. If a new modern enterprise award was not made to replace the three enterprise awards referred to in paragraph [2], the specific terms and conditions of employment will be lost. That would be likely to adversely impact on the applicant’s productivity, given the flexibility required for efficient grain handling operations to meet client demands.

The views of the persons covered by the Queensland Award, the Grain Elevators Award and the Bulk Handling Award: item 4(5)(g)

[22] The applicant seeks a modern enterprise award. No individual employee or employees expressed any view about this application. By the conclusion of the hearings and conferences in this matter, no union opposed a modern enterprise award being made in the terms then agreed between the applicant and the AWU.

Any other matter prescribed by the regulations: item 4(5)(h)

[23] The only regulations made under this item relate to take-home pay orders which may be made in the context of making a modern enterprise award. No order is sought nor is one necessary. Accordingly, we do not need to discuss those regulations.

The modern awards, 29 minimum wages30 and modern enterprise awards objectives31

[24] The considerations that we have given to these objectives are largely similar to those addressed at paragraphs [47] to [56] of Viterra. 32 We adopt those considerations, but note that relevantly for the present matter, GrainCorp operates in New South Wales, Victoria and Queensland. In short, we have decided that to make a modern enterprise award will be consistent with or further these objectives. It is not likely that the modern enterprise award, in the terms we have decided upon, will operate in a manner contrary to any of these objectives.

Conclusion

[25] We have considered all of the factors in item 4(5) we are required to take into account. In deciding whether or not to make a modern enterprise award, we have also considered the modern awards objective, the minimum wages objective and the modern enterprise awards objective.

[26] We have decided to make a modern enterprise award. It will be titled the GrainCorp Country Operations Award 2015 33 and will be published at the same time as this decision. It will come into operation on 14 December 2015.

[27] There will be a number of consequential or related orders that we will make. These, too, will be published at the same time as this decision. 34

[28] Firstly, the enterprise instruments in relation to which this application is pressed – that is, the Queensland Award, the Grain Elevators Award and the Bulk Handling Award – will be terminated with effect from 14 December 2015.

[29] By consent of the parties, we will also issue orders terminating the NUW Award, the Port Kembla Award, the Newcastle Award, the Vicgrain Award and the Head Office Award. Those orders will also be made effective from 14 December 2015.

SENIOR DEPUTY PRESIDENT

Appearances:

A Salmon, solicitor, for GrainCorp Operations Limited.

M Nguyen for the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU).

J Gherjestani for the Australian Workers’ Union.

N Keats, solicitor, for the Maritime Union of Australia.

A Snowball for the National Union of Workers.

Hearing and conference details:

Sydney.

2015.

October 26, July 21, February 27.

2014.

July 17.

2013.

December 9, October 30.

Final written submissions:

2015.

November 17.

 1   AN140135.

 2   AP797094.

 3   AP765584.

 4   AP783167.

 5   AT783157.

 6   AP765758.

 7   AP802130.

 8   AP782993.

 9   Exhibit GrainCorp 1 para 14.

 10   AP765584 cl 3.

 11   Exhibit GrainCorp 1 para 12.

 12   Fair Work Act 2009 (Cth) s.134(1).

 13   Fair Work Act 2009 (Cth) s.284(1).

 14   [2014] FWCFB 2170.

 15   Ibid [10]-[11].

 16   [2012] FCA 1315; [2012] FCAFC 114.

 17   [2015] FCAFC 95.

 18   [2015] FWCFB 6059.

 19   Exhibit GrainCorp 1 para 35.

 20   MA000084.

 21   MA000053.

 22   MA000010.

 23   MA000097.

 24   MA000002.

 25   [2015] FWCFB 6059.

 26   Ibid.

 27   MA000136.

 28   Exhibit GrainCorp 1 paras 109-50.

 29   Fair Work Act 2009 (Cth) s.134(1).

 30   Fair Work Act 2009 (Cth) s.284(1).

 31   Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) sch 6 item 6(2).

 32   [2015] FWCFB 6059.

 33   MA000138.

 34   PR574347.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR573310>