[2012] FWAFB 5184

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Fair Work Act 2009
s.302 - Equal remuneration order

Equal Remuneration Case

Australian Municipal, Administrative, Clerical and Services Union and others


SYDNEY, 22 JUNE 2012

[1] On 16 May 2011 Fair Work Australia (FWA) issued a decision 1 concerning an application made by the Australian Municipal, Administrative, Clerical and Services Union (ASU) on its own behalf and on behalf of a number of other unions for an equal remuneration order under Part 2-7 of the Fair Work Act 2009 (Cth) (the Act) in the social, community and disability services industry throughout Australia (the SACS industry). In that decision we summarised our findings as follows:

[2] On 1 February 2012 FWA issued a further decision 3 having regard to the submissions made by the parties in accordance with its earlier decision. In that decision, a majority of the Full Bench of FWA concluded as follows:

[3] Discussions concerning the draft orders took longer than 21 days and the ASU did not file draft orders until 16 May 2012 and amended draft orders until 4 June 2012. Australian Business Industrial (ABI) filed draft orders and amended draft orders on 30 May 2012 and 6 June 2012 respectively and the Australian Federation of Employers and Industries (AFEI) filed draft orders on 6 June 2012. We heard the parties on the respective draft orders on 8 June 2012.

[4] The applicants’ amended draft order was supported by the Commonwealth, the South Australian Government and, in general, by numerous employers in the SACS industry. It was not opposed by the Victorian Government and was neither supported nor opposed by the New South Wales Government. Aspects of the applicants’ draft order were opposed by the ABI and AFEI.

[5] The current members of the Full Bench comprising the majority in the February 2012 decision consider that the applicants’ amended draft order is consistent with the majority decision of 1 February 2012 in this matter. Amongst other things, it is a stand alone order that takes into account the full and ongoing remedy the majority indicated it was prepared to make. It also takes into account the current minimum wages for the relevant employees under the Social, Community, Home Care and Disability Services Industry Award 2010, 5 including those in relevant transitional minimum wage instruments and/or award based transitional instruments, as well as the outcome of annual wage reviews. Subject to the absorption of overaward payments, it ensures each relevant employee receives the benefit of the remedy from the commencement of the phase-in period, throughout a year and in the nine equal instalments decided. The instalment date of the first full pay period on or after 1 December each year is administratively consistent with the decision. The quantum of each of the nine equal instalments is dependent on the difference between the current minimum wages and the full remedy. This evens out the overall cost impact over the nine instalments, making for an appropriate overall cost impact in any one year. It also provides for salary packaging.

[6] The draft orders and amended draft orders proposed by the ABI and AFEI do not provide all relevant employees with the nine equal instalments phase-in period decided by the majority of the Full Bench. Further, the amended draft orders proposed by the ABI do not maintain the percentage value of the equal remuneration payment throughout a year.

[7] The applicants’ amended draft order does delay the movement to uniform minimum wage rates for the relevant employees. However, that is a necessary consequence of the majority decision to appropriately phase-in equal remuneration for work of equal or comparable value for the relevant employees in the SACS industry, in circumstances where there are currently various minimum wages for those employees.

[8] FWA will issue an equal remuneration order generally in the form of the amended draft order of the applicants of 4 June 2012, subject to some variations designed to aid its clarity and to ensure its frequency and methods of payment clause recognises arrangements made in an enterprise agreement. The equal remuneration order is being issued at the same time as this decision as PR525485. The existence of the equal remuneration order will be noted in the Social, Community, Home Care and Disability Services Industry Award 2010.



P Lowson of counsel and T Slevin of counsel for the Australian Municipal, Clerical and Services Union and others.

M Harding of counsel for the Australian Government.

S Moore of counsel for the Minister for Employment and Industrial Relations for the State of Victoria.

L Doust of counsel for the Minister for Finance and Services for New South Wales.

R Warren of counsel for the Australian Federation of Employers and Industries.

S Haynes for Australian Business Industrial.

M Pegg for Jobs Australia.

Hearing details:

Sydney and Melbourne, by Video Link:
8 June 2012.


 1  Equal Remuneration Case - May 2011 Decision, [2011] FWAFB 2700.

 2   Ibid.

 3   Equal Remuneration Case - February 2012 Decision, [2012] FWAFB 1000.

 4   Ibid.

 5   MA000100

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