DECISION

Fair Work Act 2009
s.160—Application to vary a modern award to remove ambiguity or uncertainty or correct error

Residual variations
(AM2022/15)

Section 160 of the Fair Work Act 2009 (Cth) – variation on the Commission’s own motion – residual variations – decision.

[1] The process of finalising the exposure drafts produced during the 4 yearly Review (the Review) and the consequent variation of each modern award, is now largely complete. This decision concerns the correction of errors and removal of ambiguities in modern awards arising from variations made during the Review (the residual variations process).

[2] The residual variations process commenced on the Commission’s own motion pursuant to s.160 of the Fair Work Act 2009 and is confined to the correction of errors of a minor typographical or structural nature. In addition, a number of enterprise awards and State reference public sector awards contain references to 2010 awards that needed to be varied to refer to the current award titles in order to remove any ambiguity that might arise.

[3] The initial process of identifying awards with typographical or other obvious minor errors was conducted by staff of the Commission. A list of the relevant awards, the issues identified and the amendments proposed to resolve those issues, was set out at Attachment A to a Statement published on 17 June 2022 (the June Statement). 1 In that Statement we expressed the view that the errors identified in Attachment A were self-evident and we proposed to exercise the power in s.160 to correct them.

[4] Attachment B to the June Statement identified issues in a number of modern awards which were of a slightly more substantial nature and set out our provisional view as to how we intended to resolve those issues.

[5] The June Statement set out the following process for resolving the residual issues:

‘In relation to the proposed amendments set out in Attachment A, any objection to those proposed amendments should be filed by 4pm (AEST) on Wednesday 29 June 2022.

In relation to the provisional views at Attachment B:

(i) Any interested party that opposes any of the provisional views set out in Attachment B to this Statement shall file a submission identifying the basis of their opposition by 4pm (AEST) Wednesday 29 June 2022.

(ii) Any submissions in reply should be filed by 4pm (AEST) on Wednesday 20 July 2022.’

[6] We received the following submissions in response to the June Statement:

•  United Workers Union (UWU)

•  Australian Services Union (ASU)

•  Australian Industry Group (Ai Group)

[7] None of the submissions filed raised any objection to the proposed amendments set out in Attachment A to the June Statement. We will proceed to make those corrections and variation determinations will be published today.

[8] The ASU and UWU stated that they intended to make no submissions in respect of the provisional views set out in Attachment B to the June Statement. Indeed, the only submission received in respect of Attachment B was made by Ai Group.

[9] Ai Group’s submission responded to the provisional view in Attachment B in relation to clause 34.1 of the Manufacturing and Associated Industries and Occupations Award 2020 (the Manufacturing Award).

[10] In the June Statement we expressed the provisional view that the underlined text below be inserted at the start of clause 34.1:

‘Except as provided for in clause 47, annual leave does not apply to a casual employee.’

[11] Ai Group advances the following submission in respect of this provisional view:

‘The proposed amendment to clause 34.1 appears to delete the first sentence of that clause. In our submission, there is no basis for deleting this sentence. It should be retained. Importantly, it serves to make the award simpler and easier to understand.

Further, the proposed amendment to the second sentence also contains an incorrect cross reference to clause 47. The correct cross reference should be to clause 48.

In our submission, the proposed amendment to clause 34.1 should be as follows:

Annual leave is provided for in the NES. Except as provided for in clause 47 48, Annual leave does not apply to a casual employee.’ 2

[12] It seems to us that Ai Group is correct and it is our provisional view that clause 34.1 of the Manufacturing Award should be varied in the terms proposed by Ai Group.

[13] There was no opposition to any of the other provisional views set out in Attachment B to the June Statement. We confirm those provisional views and we will issue determinations in the terms set out at Attachment B today.

Next steps

[14] Any interested party that opposes our provisional view in respect of the variation to the Manufacturing Award must file a submission identifying the basis of their objection by 4:00pn (AEST) on Wednesday 20 July 2022. Submissions to be sent to [email protected]. If no objection is filed in respect of our provisional view then we will vary clause 34.1 in the terms proposed by Ai Group.

PRESIDENT

Printed by authority of the Commonwealth Government Printer

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 1   [2022] FWCFB 107

 2   Ai Group submission 29 June 2022 [2] – [4]