[2011] FWAFB 8800 |
FAIR WORK AUSTRALIA |
DECISION |
Fair Work Act 2009
s.158—Application to vary or revoke a modern award
JUSTICE GIUDICE, PRESIDENT |
MELBOURNE, 22 DECEMBER 2011 |
[1] On 28 November 2011 the Australian, Municipal, Administrative, Clerical and Services Union (ASU) lodged an application to vary the Social, Community, Home Care and Disability Services Industry Award 2010 1 (SACS modern award). The application was made under s.158 of the Fair Work Act 2009 (Fair Work Act). The application is to be seen in the context of proceedings relating to an application for an equal remuneration order to apply to most of the employees covered by the SACS modern award. We shall refer to those proceedings as the equal remuneration proceedings. Those proceedings have been before this Full Bench since April 2010. For the purposes of this decision it is not necessary to set out the details of the equal remuneration proceedings. They are dealt with in a decision we issued on 16 May 2011.2 In that decision, among other things, we sought further submissions on the nature of the order which should be made. On 8 December 2011, after further hearings, we reserved our decision.
[2] The application with which this decision deals is designed to alter the transitional provisions in Schedule A to the SACS modern award for employees who will be affected by the outcome of the equal remuneration proceedings. Those provisions deal with the phasing in of minimum wages, loadings and penalty rates prescribed in the SACS modern award. The phases commence on 1 February 2012, 1 July 2012 and 1 July 2013. If the application were granted the SACS modern award minimum wages, loadings and penalty rates would operate from 1 July 2012 and phasing would no longer apply to the relevant employees and their employers. Any minimum wages in transitional instruments which are higher than the rates in the modern award would be maintained until 2014 and Annual Wage Review increases would be applied to them. Transitional provisions would still apply in the case of loadings and penalty rates in transitional instruments which are higher than those in the modern award, but commencing from 1 July 2012 rather than 1 February 2012.
[3] As we understand it, the applicant accepts that these provisions will require review in light of the outcome in the main proceedings.
[4] The ASU outlined the history of the phasing provisions in the SACS modern award and submitted that, if implemented, the current arrangements will “exacerbate the high level of confusion that already exists” and that the variation is necessary to achieve the modern awards objective in s.134 of the Fair Work Act, particularly ss.134(1)(e) and (f).
[5] The Catholic Commission for Employment Relations (CCER) objected to the application on the basis that it would result in different operative dates for increases for the relevant employees and for employees not included in the equal remuneration proceedings. CCER did not make any submission concerning the phasing provisions for the employees concerned.
[6] We intend to grant the application. It has nearly unanimous support from interested persons and bodies. The deletion of the phasing provisions in relation to wages, loadings and penalty rates for the relevant employees will simplify the implementation of the SACS modern award and make the implementation of any order resulting from the equal remuneration proceedings easier. It is accepted that other changes might be needed after the decision in the main proceedings.
[7] We issue a draft order to give effect to this decision as Attachment A. Any comments should be received by 10 January 2012.
PRESIDENT
Appearances:
P Lowson of counsel, T Slevin of counsel and M Irving of counsel with K Harvey and J Wright for the Australian Municipal, Administrative, Clerical and Services Union.
H Borenstein SC with M Harding of counsel for the Australian Government.
R Doyle SC with S Moore of counsel and K Bugeja for the Minister for Industrial Relations for the State of Victoria.
K Eastman of counsel and L Doust of counsel with G Boyd for the Minister for Finance and Services for New South Wales (formerly appearing for the New South Wales Minister for Industrial Relations).
W Ussher with B O’Brien and L Booth for the Queensland Attorney-General and Minister for Industrial Relations.
R Warren of counsel with G Brack, T Doyle, D Makins and G Allen for the Australian Federation of Employers and Industries.
S Smith with M Mead for the Australian Industry Group.
J Fetter with E Thornton for the Australian Council of Trade Unions.
S Haynes for Australian Business Industrial.
M Pegg for Jobs Australia.
D Gregory with D Mammone for the Australian Chamber of Commerce and Industry.
B Lawrence with A Matreve and M Cusack for the Catholic Commission for Employment Relations and Catholic Social Services Australia.
R Davidson for Mission Australia.
L Maloney for the Australian Childcare Centres Association and the Australian Community Services Employers Association.
Hearing details:
Melbourne.
2011.
December, 7 and 8.
MA000100 PRXXXXXX |
FAIR WORK AUSTRALIA |
DRAFT DETERMINATION |
Fair Work Act 2009
s.158—Application to vary or revoke a modern award
SOCIAL, COMMUNITY, HOME CARE AND DISABILITY SERVICES INDUSTRY AWARD 2010
[MA000100]
Social, community, home care and disability services | |
JUSTICE GIUDICE, PRESIDENT |
|
A. The Social, Community, Home Care and Disability Services Industry Award 2010 3 is varied as follows:
1. By adding the words “to employees classified in the Family Day Care and Home Care classification streams in this award” to the end of clause A.2.3.
2. By deleting clause A.2.4 and inserting a new clause A.2.4 as follows:
The difference between the minimum wage for the classification in the Family Day Care and Home Care classification streams in this award and the minimum wage in clause A.2.3 is referred to as the transitional amount.
3. By adding the words “to employees classified in the Family Day Care and Home Care classification streams in this award” to the end of the first sentence in clause A.2.5.
4. By deleting the words “These provisions” in clause A.2.7 and inserting in lieu thereof the words “Clauses A.2.4 and A.2.5”
5. By inserting the following additional clauses immediately after clause A.2.7:
A.2.8 Prior to the first full pay period on or after 1 July 2012, the employer must pay no less than the minimum wage in the relevant transitional minimum wage instrument and/or award-based transitional instrument for the classification concerned to employees classified in the Social and Community Services and Crisis Accommodation classification streams in this award.
A.2.9 Clause A.2.8 ceases to operate from the beginning of the first full pay period on or after 1 July 2012.
6. By adding the words “to employees classified in the Family Day Care and Home Care classification streams in this award” to the end of clause A.3.3.
7. By deleting clause A.3.4 and inserting a new clause A.3.4 as follows:
The difference between the minimum wage for the classification in the Family Day Care and Home Care classification streams in this award and the minimum wage in clause A.3.3 is referred to as the transitional amount.
8. By adding the words “to employees classified in the Family Day Care and Home Care classification streams in this award” to the end of the first sentence in clause A.3.5.
9. By deleting the words “These provisions” in clause A.3.7 and inserting in lieu thereof the words “Clauses A.3.4 – A.3.6 inclusive”
10. By inserting the following additional clauses immediately after clause A.3.7:
A.3.8 Prior to the first full pay period on or after 1 July 2012, the employer must pay no less than the minimum wage in the relevant transitional minimum wage instrument and/or award-based transitional instrument for the classification concerned to employees classified in the Social and Community Services and Crisis Accommodation classification streams in this award.
A.3.9 From the first full pay period on or after 1 July 2012, the employer must pay an employee who is classified in either the Social and Community Services or Crisis Accommodation classification streams in this award no less than either:
a. the minimum wage for the relevant classification in this award; or
b. the minimum wage in the relevant transitional minimum wage instrument and/or award-based transitional instrument for the classification concerned
whichever is higher.
A.3.10 The employer must apply any increase in minimum wages in this award resulting from an annual wage review to the amounts in clause A.3.9.
A.3.11 Clause A.3.9 ceases to operate from the beginning of the first full pay period on or after 1 July 2014.
11. By adding the words “to employees classified in the Family Day Care and Home Care classification streams in this award” to the end of the first sentence in clause A.5.2.
12. By adding the words “to employees classified in the Family Day Care and Home Care classification streams in this award” to the end of the first sentence in clause A.5.4.
13. By inserting the following additional clauses immediately after clause A.5.5:
A.5.6 Prior to the first full pay period on or after 1 July 2012, the employer must pay no less than the loading or penalty in the relevant transitional minimum wage instrument or award-based transitional instrument for the classification concerned to employees classified in the Social and Community Services and Crisis Accommodation classification streams in this award.
A.5.7 The difference between the loading or penalty in this award and the rate in clause A5.6 is referred to as the transitional percentage.
A.5.8 From the following dates the employer must pay no less than the loading or penalty in this award minus the specified proportion of the transitional percentage to employees classified in the Social and Community Services and Crisis Accommodation classification streams in this award:
First full pay period on or after
1 July 2012 1 July 2013 |
40%
|
A.5.9 These provisions cease to operate from the beginning of the first full pay period on or after 1 July 2014.
14. By adding the words “to employees classified in the Family Day Care and Home Care classification streams in this award” to the end of the first sentence in clause A.6.2.
15. By adding the words “to employees classified in the Family Day Care and Home Care classification streams in this award” to the end of the first sentence in clause A.6.6.
16. By inserting the following additional clauses immediately after clause A.6.5:
A.6.6 Prior to the first full pay period on or after 1 July 2012, the employer must pay no less than the loading or penalty in the relevant transitional minimum wage instrument or award-based transitional instrument for the classification concerned to employees classified in the Social and Community Services and Crisis Accommodation classification streams in this award.
A.6.7 The difference between the loading or penalty in this award and the rate in clause A.6.6 is referred to as the transitional percentage.
A.6.8 From the following dates the employer must pay no less than the loading or penalty in this award minus the specified proportion of the transitional percentage to employees classified in the Social and Community Services and Crisis Accommodation classification streams in this award:
First full pay period on or after:
1 July 2012 1 July 2013 |
40% 20% |
A.6.9 These provisions cease to operate from the beginning of the first full pay period on or after 1 July 2014.
17. By adding the words “to employees classified in the Family Day Care and Home Care classification streams in this award” to the end of the first sentence in clause A.7.2.
18. By adding the words “to employees classified in the Family Day Care and Home Care classification streams in this award” to the end of the first sentence in clause A.7.3.
19. By inserting the following additional clauses immediately after clause A.7.4:
A.7.5 Prior to the first full pay period on or after 1 July 2012, the employer need not pay the loading or penalty in this award to employees classified in the Social and Community Services and Crisis Accommodation classification streams in this award.
A.7.6 From the following dates the employer must pay no less than the following percentage of the loading or penalty in this award to employees classified in the Social and Community Service and Crisis Accommodation classification streams in this award:
First full pay period on or after:
1 July 2012 1 July 2013 |
60% 80% |
A.7.7 These provisions cease to operate from the beginning of the first full pay period on or after 1 July 2014.
B. This determination comes into operation on the first full pay period commencing on or after [date]
PRESIDENT
1 MA000100.
Printed by authority of the Commonwealth Government Printer
<Price code A, PR517955>