1
Fair Work Act 2009
Schedule 4, item 5—amendments made by the Fair Work Amendment Act 2013
Consultation clause in modern awards
(AM2013/24)
JUSTICE ROSS, PRESIDENT
SENIOR DEPUTY PRESIDENT WATSON
COMMISSIONER WILSON MELBOURNE, 23 DECEMBER 2013
Consultation about changes to regular rosters and ordinary hours of work - Fair Work
Amendment Act 2013 - Schedule 4 of the Fair Work Act 2009 - s.145A - meaning of ‘consult’
- model term to be inserted in all modern awards.
Introduction
[1] The Fair Work Amendment Act 2013 (the 2013 Amendment Act) amends the Fair
Work Act 2009 (the FW Act) by inserting a new provision, s.145A, which provides that all
modern awards must include a term requiring employers to consult employees about a change
to their regular roster or ordinary hours of work. For convenience we refer to this term as the
‘relevant term’. The 2013 Amendment Act also inserts a new schedule into the FW Act,
Schedule 4. Schedule 4 requires the Commission to make a determination varying modern
awards by 31 December 2013, to include a term of the kind mentioned in s.145A.
[2] In order to facilitate the variation of modern awards consistent with the Commission’s
new statutory obligations, we issued a Statement1 on 7 November 2013 setting out a draft
relevant term. The Statement made it clear that the draft relevant term did not represent the
concluded view of the Commission regarding the nature of the variation necessary to give
effect to the requirement to insert the relevant term in all modern awards by 31 December
2013.
[3] All interested parties were provided with an opportunity to make submissions in
respect of the draft consultation term, in relation to any modern award. Thirty-nine written
submissions were received and posted on the Commission’s website. We also conducted an
oral hearing on 13 December 2013 to provide interested parties with a further opportunity to
make submissions.
[4] We propose to deal with the legislative context first and then the form and content of
the relevant term.
[2013] FWCFB 10165
DECISION
E AUSTRALIA FairWork Commission
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Legislative Context
[5] We turn first to the source of our power to make determinations varying modern
awards to include a term of the kind mentioned in s.145A.
[6] It is important to note that in these proceedings we are not varying modern awards
pursuant to s.145A, as that provision has not yet commenced operation (s.145A commences
operation on 1 January 2014). Rather, the power we are presently exercising is conferred by
Schedule 4 of the FW Act, in particular:
5. Part 4 of Schedule 1 to the amending Act
... Transitional provision
“(3) If:
(a) a modern award is made before 1 January 2014; and
(b) the modern award is in operation on that day; and
(c) immediately before that day, the modern award does not include a term (the
relevant term) of the kind mentioned in section 145A (as inserted by item 19 of
Schedule 1 to the amending Act);
then the FWC must, by 31 December 2013, make a determination varying the modern
award to include the relevant term.
(4) A determination made under subclause (3) comes into operation on (and takes effect
from) 1 January 2014.
(5) Section 168 applies to a determination made under subclause (3) as if it were a
determination made under Part 2-3.”
[7] These transitional provisions were inserted into a new schedule to the FW Act by
Schedule 7 of the 2013 Amendment Act. The transitional provisions commenced on the date
the 2013 Amendment Act received Royal Assent, 28 June 2013.
[8] The transitional provision requires the Commission to make a determination varying
certain modern awards by 31 December 2013, to include a term of the kind mentioned in
s.145A. The modern awards which are to be so varied are those made before 1 January 2014,
in operation on that day and immediately before that day do not include a term of the kind
mentioned in s.145A. It seems to us that all 122 modern awards meet the prerequisites in the
transitional provision and no party contended to the contrary. It follows that we are obliged to
make determinations varying all 122 modern awards.
[9] In varying modern awards to include a term of the kind mentioned in s.145A the
Commission is acting pursuant to the statutory directive in sub-clause 5(3) of Schedule 4.
Sub-clause 5(3) is the source of the Commission’s power to make determinations in the
manner contemplated in clause 5 of Schedule 4. No party in these proceedings demurred
from that proposition. An issue which arises from the source of our powers in the present
proceedings is the application of the modern awards objective in s.134 of the FW Act.
Section 134 states:
134 The modern awards objective
“What is the modern awards objective?
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(1) The FWC must ensure that modern awards, together with the National Employment
Standards, provide a fair and relevant minimum safety net of terms and conditions, taking into
account:
(a) relative living standards and the needs of the low paid; and
(b) the need to encourage collective bargaining; and
(c) the need to promote social inclusion through increased workforce
participation; and
(d) the need to promote flexible modern work practices and the efficient and
productive performance of work; and
(e) the principle of equal remuneration for work of equal or comparable value;
and
(f) the likely impact of any exercise of modern award powers on business,
including on productivity, employment costs and the regulatory burden; and
(g) the need to ensure a simple, easy to understand, stable and sustainable modern
award system for Australia that avoids unnecessary overlap of modern awards;
and
(h) the likely impact of any exercise of modern award powers on employment
growth, inflation and the sustainability, performance and competitiveness of
the national economy.
This is the modern awards objective.
When does the modern awards objective apply?
(2) The modern awards objective applies to the performance or exercise of the FWC’s
modern award powers, which are:
(a) the FWC’s functions or powers under this Part; and
(b) the FWC’s functions or powers under Part 2-6, so far as they relate to modern
award minimum wages.
Note: The FWC must also take into account the objects of this Act and any other
applicable provisions. For example, if the FWC is setting, varying or revoking modern
award minimum wages, the minimum wages objective also applies (see section 284).”
[10] The reference to ‘this Part’ in s.134(2)(a) is a reference to Part 2-3 of the FW Act. In
making determinations varying modern awards to include the relevant term the Commission
is exercising powers under Schedule 4 of the FW Act. Importantly, it is not exercising
modern award powers within the meaning of s.134(2) because it is not, relevantly, performing
functions or powers under Part 2-3 of the FW Act (s.134(2)(a)). It follows that the modern
awards objective does not apply by force of s.134(2), but that does not mean that the modern
awards objective is irrelevant to our task. Section 138 of the FW Act is important in this
regard, it states:
“A modern award may include terms that it is permitted to include, and must include terms
that it is required to include, only to the extent necessary to achieve the modern awards
objective and (to the extent applicable) the minimum wages objective.”
[11] Relevantly, s.138 provides that a modern award ‘must include terms that it is required
to include, only to the extent necessary to achieve the modern awards objective’. The relevant
term is a term which is required to be included in a modern award. To comply with s.138 the
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formulation of such a term must be in terms ‘necessary to achieve the modern awards
objective’. As stated in the Explanatory Memorandum to what is now s.138:
“527. ... the scope and effect of permitted and mandatory terms of a modern award must
be directed at achieving the modern awards objective of a fair and relevant safety net that
accords with community standards and expectations.”
[12] The FW Act does not directly specify the consequences of non-compliance with s.138
(as it does in relation to non-compliance with s.136, see s.137) but that does not mean that the
Commission is at liberty to ignore s.138. Two other considerations also need to be borne in
mind.
[13] First, the source of the power we are exercising is in a schedule to the FW Act and the
schedule is deemed to form part of the FW Act.2 In construing the transitional provisions in
the schedule, s.15AA of the Acts Interpretation Act 1901 requires that a construction that
would promote the purpose or object of the FW Act is to be preferred to one that would not
promote that purpose or object. The purpose or object of the FW Act is to be taken into
account even if the meaning of a provision is clear. When the purpose or object is brought
into account an alternative interpretation may become apparent. If one interpretation does not
promote the object or purpose of the FW Act, and another does, the latter interpretation is to
be preferred. Of course, s.15AA requires us to construe the FW Act, not to rewrite it, in the
light of its purpose.3
[14] The objects of the FW Act are set out in s.3. Relevantly, s.3(b) provides:
“The object of this Act is to provide a balanced framework for cooperative and productive
workplace relations that promotes national economic prosperity and social inclusion for all
Australians by:
... (b) ensuring a guaranteed safety net of fair, relevant and enforceable minimum
term and conditions through ... modern awards.”
[15] The purpose of an Act can also be discerned from the scheme of the Act and its
provisions. It is apparent from the scheme of the FW Act that modern awards together with
the National Employment Standards are intended to operate as a safety net of minimum terms
and conditions underpinning collective bargaining. Section 134 is central to that legislative
purpose.
[16] The second consideration is that the exercise of our powers under the transitional
provision, before 31 December 2013, may be contrasted with the situation after 1 January
2014. On 1 January 2014, s.145A commences operation. Any modern award made after that
date must include a term of the kind mentioned in s.145A. Section 145A is in Part 2-3 of the
FW Act. Hence, inserting a term of the kind mentioned in s.145A will involve the exercise of
modern award powers and attract the application of the modern awards objective.
[17] If the modern awards objective did not apply to these transitional proceedings then it is
conceivable that the form of the relevant term we insert into modern awards may be different
from that which would be inserted in any modern award made after 1 January 2014. It seems
unlikely that such an anomalous outcome was intended by the legislature. An Act is to be
construed on the prima facie basis that the provisions are intended to give effect to
harmonious goals.4
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[18] We have proceeded on the basis that the modern awards objective applies to these
transitional proceedings. Accordingly, we have taken into account the matters set out at
s.134(1)(a) to (h).
[19] The transitional provisions oblige us to make determinations varying modern awards
to include a term ‘of the kind mentioned in s.145A’. We now turn to consider s.145A.
[20] Section 145A provides as follows:
145A Consultation about changes to rosters or hours of work
(1) Without limiting paragraph 139(1)(j), a modern award must include a term that:
(a) requires the employer to consult employees about a change to their regular
roster or ordinary hours of work; and
(b) allows for the representation of those employees for the purposes of that
consultation.
(2) The term must require the employer:
(a) to provide information to the employees about the change; and
(b) to invite the employees to give their views about the impact of the change
(including any impact in relation to their family or caring responsibilities);
and
(c) to consider any views about the impact of the change that are given by the
employees.
[21] The words in s.145A are to be construed according to their ordinary meaning having
regard to their context and legislative purpose. The words are to be read by reference to the
language of the Act as a whole.5
[22] We turn first to the text of s.145A. The introductory words in s.145A(1) refer to
s.139(1)(j) which provides:
“s.139(1) A modern award may include terms about any of the following matters:
... (j) procedures for consultation, representation and dispute settlement”
[23] Sub-section 145A(1) then sets out the parameters of the relevant term. In particular
the relevant term must require the employer ‘to consult employees about a change to their
regular roster or ordinary hours of work’. For the purpose of that consultation the relevant
term must be one which ‘allows for the representation of those employees’.
[24] Before turning to the meaning of the word ‘consult’ in this context three other
observations may be made about s.145A(1).
[25] The first is that s.145A does not confer a right on an employer to change an
employee’s regular roster or ordinary hours of work. It is not a source of power in that sense.
The employer’s power to change an employee’s regular roster or hours of work must be found
elsewhere - either in the contract of employment or in an industrial instrument, such as a
modern award or enterprise agreement.
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[26] Second, the obligation is to ‘consult employees about a change to their regular roster
or ordinary hours of work’. Hence, only those employees directly affected by such a change
are required to be consulted (subject to what we say later about an affected employee’s
representative).
[27] Third, the relevant term must include a term which ‘allows for the representation of
those employees’. The word ‘allows’ is permissive - it does not require an employee to be
represented but if they choose to be then the employer is to respect that choice and consult
with the employee and their representative. So much is clear from the language of
s.145A(1)(b) which allows for the representation of affected employees ‘for the purposes of
that consultation’. We now turn to the word ‘consult’.
[28] The obligation in s.145A(1)(a) is ‘to consult [with] employees’. In this context the
word ‘consult’ is used as a verb and is defined in the Oxford Dictionary in these terms:
“Consult with. To take counsel with; to seek advice from.”
[29] The definition in the Macquarie Dictionary (5th Edition) is in similar terms:
“1. To seek counsel from; ask advice of. 2. to refer to for information. 3. to have regard for (a
person’s interest, convenience, etc.) in making plans. - v.i 4. (sometimes fol. by with) to
consider or deliberate; take counsel; confer [L. Deliberate, take counsel]”
[30] The word ‘consult’ means more than the mere exchange of information. As Young J
said in Dixon v Roy6:
“The word ‘consult’ means more than one party telling another party what it is that he or she is
going to do. The word involves at the very least the giving of information by one party, the
response to that information by the other party, and the consideration by the first party of that
response.” [citations omitted]
[31] The right to be consulted is a substantive right, it is not to be treated perfunctorily or as
a mere formality.7 Inherent in the obligation to consult is the requirement to provide a
genuine opportunity for the affected party to express a view about a proposed change in order
to seek to persuade the decision maker to adopt a different course of action. As Logan J
observed in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing
and Allied Services Union of Australia v QR Limited (QR):8
“... A key element of that content [of an obligation to consult] is that the party to be consulted
be given notice of the subject upon which that party’s views are being sought before any final
decision is made or course of action embarked upon. Another is that while the word always
carries with it a consequential requirement for the affording of a meaningful opportunity to
that party to present those views. What will constitute such an opportunity will vary according
the nature and circumstances of the case. In other words, what will amount to “consultation”
has about it an inherent flexibility. Finally, a right to be consulted, though a valuable right, is
not a right of veto.
To elaborate further on the ordinary meaning and import of a requirement to “consult” may be
to create an impression that it admits of difficulties of interpretation and understanding. It does
not. Everything that it carries with it might be summed up in this way. There is a difference
between saying to someone who may be affected by a proposed decision or course of action,
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even, perhaps, with detailed elaboration, “this is what is going to be done” and saying to that
person “I’m thinking of doing this; what have you got to say about that ?”. Only in the latter
case is there “consultation. ...”
[32] We respectfully adopt his Honour’s observations. Similar to the obligation to accord a
person procedural fairness, the precise content of an obligation to consult will depend on the
context. The extent and significance of a proposed change, in terms of its impact on the
affected employees, will have a bearing on the extent of the opportunity to be provided.
Hence a change of limited duration to meet unexpected circumstances may mean that the
opportunity for affected employees to express their views may be more limited than would be
the case in circumstances where the proposed change is significant and permanent. It is also
relevant to note that while the right to be consulted is a substantive right, it does not confer a
power of veto. Consultation does not amount to joint decision making.9
[33] Some of the ordinary incidents of a requirement to consult are reflected in s.145A(2),
that is:
to provide information about the change; and
to provide an opportunity for affected employees to give their views about the impact of
the change; and
to consider any views about the impact of the change that are given by the employees.
[34] An issue in contention in these proceedings was whether a term of the kind mentioned
in s.145A required an employer to consult employees about a proposed ‘change to their
regular roster or ordinary hours of work’ or whether the obligation to consult could be
satisfied after a definite decision to implement a change has been made or a change has been
implemented.
[35] The ordinary meaning of the word ‘consult’ and the legislative context and purpose
leads us to conclude that the requirement in s.145A is to consult employees about proposed
changes to ‘their regular roster or ordinary hours of work’. It is said against such a
construction that the word ‘proposed’ does not condition the word ‘consult’ in s.145A. But it
is implicit in the obligation to consult that a genuine opportunity be provided for the affected
party to attempt to persuade the decision maker to adopt a different course of action. If a
change has already been implemented or if the employer has already made a definite or
irrevocable decision to implement a change then subsequent ‘consultation’ is robbed of this
essential characteristic.10 As Sachs LJ observed in a case concerning the statutory obligation
to consult in relation to decisions regarding variations in public transport routes:
“Consultations can be of very real value in enabling points of view to be put forward which
can be met by modifications of a scheme and sometimes event by its withdrawal. I start
accordingly from the viewpoint that any right to be consulted is something that is indeed
valuable and should be implemented by giving those who have the right an opportunity to be
heard at the formative stage of proposals - before the mind of the executive becomes unduly
fixed.”11
[36] The legislative purpose and context is also important. The provision which inserts
s.145A into the FW Act appears in Schedule 1 of the 2013 Amendment Act. Schedule 1 is
titled ‘Family Friendly measures’. The insertion of s.145A into the FW Act is one of a
number of measures intended to assist employees to balance their work and family or caring
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responsibilities. So much is clear from the title to Schedule 1, the nature of the other
measures contained in that schedule and the reference in s.145A(2)(b) to providing employees
with an opportunity to give their views about the impact of the change in their regular roster
or ordinary hours of work, ‘including any impact in relation to their family or caring
responsibilities’.
[37] Interpreting s.145A such that the obligation to consult could be satisfied after a
definite decision has been made or after a change had been implemented would be antithetical
to its legislative purpose. Once a change has been implemented the disruption to family or
caring responsibilities has already occurred. Section 145A is intended to provide an
opportunity to inform the employer of the impact of a change to an employee’s regular roster
or ordinary hours of work and so that the employer may consider those views. As submitted
by the Australian Retailers Association:
“It is implicit from the requirements of s.145A of the FW Act that consultation needs to occur
prior to the proposed change being implemented and with sufficient time for employees to
raise any concerns, and for employers to give consideration to those concerns.”12
[38] The clear intent of the provision is that the employer be provided with the employee’s
views about the impact of the change so that those views may be considered before the
change is implemented or a definite decision is made. The Revised Explanatory
Memorandum confirms that legislative purpose, it states:
“43. Item 19 inserts new section 145A, which relates to changes to regular rosters or ordinary
hours of work. New paragraph 145A(1)(a) provides that modern awards must include a term
that requires employers to genuinely consult with employees about changes to their regular
roster or ordinary hours of work.
44. ‘Regular roster’ in new paragraph 145A(1)(a) is not defined. It is intended that the
requirement to consult under new section 145A will not be triggered by a proposed change
where an employee has irregular, sporadic or unpredictable working hours. Rather, regardless
of whether an employee is permanent or casual, where that employee has an understanding of,
and reliance on the fact that, their working arrangements are regular and systematic, any
change that would have an impact upon those arrangements will trigger the consultation
requirement in accordance with the terms of the modern award. The employer will be required
to inform employees about the proposed change to their regular roster or ordinary hours of
work and invite employees to give their views on the impact of the proposed change
(particularly any impact upon the employees; family and caring responsibilities), and consider
those views.
45. The amendments will ensure that employers cannot unilaterally make changes that
adversely impact upon their employees without consulting on the change and considering the
impact of those changes on those employees; family and caring responsibilities.
46. New paragraph 145A(1)(b) provides that the term must allow for the representation of
those employees for the purposes of the consultation. A person representing an employee for
the purposes of new paragraph 145A(1)(b) could be an elected employee or a representative
from an employee organisation.
47. New subsection 145A(2) sets out the consultation process to be included in the term of the
modern award. The term must require an employer to consult with employees about a change
to a regular roster or ordinary hours of work by:
providing information to the employees about the change;
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inviting employees to give their views about the impact of the change (including any impact
in relation to their family and caring responsibilities); and
considering any views put forward by those employees about the impact of the change.
Illustrative example
Gabrielle has worked 4 days a week with Wednesdays off for several years. Her employer
knows that she has school aged children and that she cares for her elderly mother on her day
off. Her employer has decided to change the arrangements under which Gabrielle works such
that she will no longer be able to take Wednesdays off. Before changing her regular rostered
hours of work, in accordance with the consultation term included in the applicable modern
award, Gabrielle�s employer will be required to provide information to her about the
proposed change, give her an opportunity to raise with her employer the impact of the
proposed change on her (including in the context of her family and caring responsibilities) and
require the employer to consider Gabrielle’s views on that impact before making any changes.
48. The dispute resolution mechanisms of the relevant workplace instrument will apply to the
operation of the consultation term.
49. Compliance with consultation terms, including the new requirements in relation to regular
rosters and ordinary working hours, will continue to be enforceable by application to a Court.”
[emphasis added]
[39] Before turning to the form and content of the relevant term we wish to deal with two
other matters. The first concerns the relevance of the model consultative term prescribed
under s.205(3) of the FW Act and the second concerns the relationship between the obligation
to consult required by the relevant term and other provisions within a modern award.
[40] Section 205 of the FW Act provides that enterprise agreements must include a
consultation term. Section 205 was amended by the 2013 Amendment Act. The amended s.205
provides as follows :
“s.205 (1) An enterprise agreement must include a term (a consultation term) that :
(a) requires the employer or employers to which the agreement applies to consult the
employees to whom the agreement applies about:
(i) major workplace change that is likely to have a significant effect on the
employees; or
(ii) a change to their regular roster or ordinary hours of work; and
(b) allows for the representation of those employees for the purposes of that
consultation.
(1A) For a change to the employees’ regular roster or ordinary hours of work, the term must
require the employer
(a) to provide information to the employees about the change; and
(b) to invite the employees to give their views about the impact of the change
(including any impact in relation to their family or caring responsibilities); and
(c) to consider any views given by the employees about the impact of the change.
(2) If an enterprise agreement does not include a consultation term, the model consultation
term is taken to be a term of the agreement.
(3) The regulations must prescribe the model consultation term for enterprise agreements.”
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[41] Regulation 2.09 of the Fair Work Regulations 2009 provides that for purposes of
s.205(3) of the FW Act the model consultation term is set out in Schedule 2.3. For
convenience we refer to this as the prescribed model consultation term.
[42] The Fair Work Amendment Regulation 2013 (No 2) amended Schedule 2.3 to take
account of the amendments to s.205 of the FW Act made by the 2013 Amendment Act. The
amended s.205 and the amended schedule 2.3 commence operation on 1 January 2014 and
apply to enterprise agreements made after that date.13
[43] A number of parties suggested that the prescribed model consultation term may be
relevant to the determination of the type of term to be inserted into modern awards in
compliance with the obligation to include a term of the kind mentioned in s.145A. Further,
the ACTU submitted that in the absence of any submissions by the Commonwealth in these
proceedings the prescribed model consultation term could be taken to represent the
Commonwealth’s view as to an appropriate consultation clause in the context of s.145A.14
[44] We are not persuaded that the prescribed model consultation term is relevant to our
determination of the term to be inserted in modern awards to meet the requirements of the
transitional provision, for two reasons. First, there is a clear distinction between the context
and purpose of the prescribed model consultation term and the task we are undertaking. The
prescribed model consultation term is a default provision which is taken to be a term of an
enterprise agreement if that agreement does not include a consultation term of the type
required by s.205. The parties to enterprise agreements are free to agree on a different
formulation of the consultation term, provided the term they agree upon complies with s.205.
While ss.145A and 205 are expressed in the same terms (insofar as they deal with
consultation about changes to regular rosters or ordinary hours of work), the context is
different. Section 205 operates in the context of collective bargaining whereas s.145A is
directed at modern awards which operate as part of a safety net of minimum terms and
conditions underpinning collective bargaining (see ss.3, 134 and 193). For the same reasons
the Commonwealth’s views to the form of a consultation clause to give effect to s.145A
cannot be inferred from the form of the prescribed model consultation term.
[45] Second, as a general proposition delegated legislation made under an Act (such as the
Fair Work Regulations) should not be taken into account for the purposes of interpretation of
the act itself. As Brennan J observed in Webster v McIntosh: ‘the intention of Parliament in
enacting an Act is not to be ascertained by reference to the terms in which a delegated power
to legislate has been exercised’.15 There are some limited exceptions to this general
proposition16 but we are not persuaded that any of those exceptions apply in the present
context.
[46] We now turn to the relationship between the obligation to consult required by the
relevant term and other provisions within a modern award.
[47] A number of parties17 contended that the obligation to consult set out in the relevant
term should be read subject to other provisions of the modern award such that the other
provisions displaced the obligation to consult. An example serves to illustrate the
proposition. If a modern award contained a provision which allowed an employer to vary an
employee’s regular roster on the giving of a specified period of notice (say 7 days) then the
obligation to consult imposed by the relevant term would not apply.
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[48] We are not persuaded that the relevant term was intended to operate in the manner
contended. As mentioned earlier, s.145A is not a source of power in that it does not confer a
right on an employer to change an employee’s regular roster or ordinary hours of work. The
source of such a power must be found elsewhere - either in the contract of employment or in
an industrial instrument, such as a modern award. It is significant that s.145A was enacted
against the background of existing provisions in modern awards which provide employers
with the right to change an employee’s regular roster or ordinary hours of work. It is also
significant that s.145A does not state that the obligation to consult is subject to any other
provisions in a modern award.
[49] If the proposition advanced were accepted it would, to a significant extent, effectively
render s.145A nugatory. The obligation to consult would have no operation in circumstances
where the modern award entitled an employer to change an employee’s regular roster or
ordinary hours of work. We are not persuaded that such a proposition is consistent with the
terms of s.145A or its legislative purpose.
[50] Section 145A is intended to impose a new, additional obligation to consult employees
in circumstances where their employer proposes to change their regular roster or ordinary
hours of work. There is no conflict between the imposition of such an obligation and existing
modern award provisions permitting the variation of a regular roster or ordinary hours of
work on the giving of a specified period of notice or pursuant to a facilitative provision.
There is no impediment to the employer complying with both provisions. The employer may
still implement the proposed change on the giving of the requisite notice, but will now be
required to consult the employees affected before implementing such a change. As we have
mentioned such consultation must provide the affected employees with a genuine opportunity
to attempt to persuade the employer to adopt a different course of action. For these reasons the
relevant term will make it clear that it is to be read in conjunction with other award provisions
concerning the scheduling of work and notice provisions.
[51] We now turn to the form and content of the relevant term.
Form and Content of the Relevant Term
[52] We turn first to the form of the relevant term. The issue in contention is whether a
model relevant term should be inserted in all modern awards or whether the relevant term
should be tailored to meet the particular circumstances said to arise in particular modern
awards. For the reasons which follow, we have decided, at this stage, to adopt the first course
and make a determination varying all modern awards in the same terms.
[53] We accept the submission by Australian Business Industrial that while the
Commission is not required to create a model relevant term to be inserted in all modern
awards ‘it would be desirable for a reasonable degree of comity between modern awards on
this issue’.18 Given the time constraint imposed by the transitional provision and the limited
material before us the development of a model clause is the most practical way of discharging
our statutory obligations.
[54] A number of parties sought to tailor the draft relevant term to the circumstances of a
particular modern award. All of these proposals were contentious. For example, Independent
Schools Victoria proposed that the terms to be inserted in the Educational Services Teachers
Award 2010 and the Educational Services Schools General Staff Award 2010 make it clear
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that an educational timetable prepared by a school to schedule student activities and academic
classes is not a regular roster for the purpose of the relevant term.19 This proposition was
opposed by the Independent Education union.20 Contested bar table statements were made in
support of the position of each party. In our view this issue should be the subject of further
consideration in the 4 yearly review of modern awards which will commence early in the new
year and be determined on the basis of evidence presented by any interested party. The
practical reality is that the timeframe envisaged in the transitional provision does not allow
that process to occur as part of these proceedings. We make it clear that we are not
expressing a view as to the merits of the proposal advanced by Independent Schools Victoria.
[55] We take the same view of the other award specific proposals advanced in these
proceedings. All of the proposals were contested and in some cases interested parties had not
had a sufficient opportunity to consider the proposal. These issues should be the subject of
further consideration in the context of the 4 yearly review. Any party seeking to have such
matters dealt with as a matter of urgency should advise the President’s chambers
(chambers.ross.j@fwc.gov.au). In the event that disputes arise regarding the practical
operation of the relevant term they can be dealt with in accordance with the dispute settlement
term in the relevant modern award.
[56] We now turn to the content of the relevant term. At the outset we note that there was
some debate in the proceedings about the extent to which we could depart from the express
terms of s.145A in our determination of the content of the term required to be inserted by the
transitional provision. In this context, Australian Business Industrial referred to the implied
power to do such things that are ancillary to the express power21 conferred by Schedule 4 to
the FW Act and submitted that the scope of the implied power was ‘very limited’.22
[57] The conferral of an express power (such as that in Schedule 4 to the FW Act) is said to
carry with it powers that are ‘necessary’ for, or ‘incidental’ to or ‘consequential’ upon the
exercise of the power granted.23 As the High Court observed in Plaintiff M47/2012 v
Director-General of Security:
“Where a statute expressly confers upon a person or a body a power or function or a duty, any
unexpressed ancillary power necessary to the exercise of the primary power or function, or
discharge of the duty, may be implied.”24
[58] The scope of the implied power is, of course, subject to a consideration of the relevant
statutory context. It is unnecessary for us to dwell on the scope of the implied power in the
present context because there is an applicable statutory provision which is relevant to the
scope of our task. Section 142 of the FW Act deals with incidental and machinery terms in
modern awards. Subsection 142(1) states:
“(1) A modern award may include terms that are:
(a) incidental to a term that is permitted or required to be in the modern award; and
(b) essential for the purpose of making a particular term operate in a practical way...”
[59] The relevant term is a term that is ‘required to be in a modern award’ and sub-section
142(1)(b) provides that we may include terms that are incidental to the relevant term and
‘essential for the purpose of making [the relevant term] operate in a practical way’.
mailto:chambers.ross.j@fwc.gov.au
[2013] FWCFB 10165
13
[60] There may well be a degree of overlap between the scope of s.142(1)(b) and the
implied term but it is unnecessary for us to determine the extent of that overlap in these
proceedings.
[61] It is convenient to set out the draft which was included in our Statement of 7
November 2013. As we have mentioned the draft relevant term did not represent our
concluded view regarding the nature of the term necessary to give effect to the transitional
provisions in Schedule 4 of the FW Act:
“X.2 Consultation about changes to rosters or hours of work
(a) Where an employer proposes to change an employee’s regular roster or ordinary hours
of work, the employer must consult with the employee or employees affected and their
representatives, if any, about the proposed change.
(b) The employer must:
(i) provide to the employee or employees affected and their representatives, if any,
all relevant information about the proposed change, provided that no employer
is required to disclose confidential information the disclosure of which would
be contrary to the employer’s interests;
(ii) invite the employee or employees affected to give their views about the impact
of the proposed change (including any impact in relation to their family or
caring responsibilities);
(iii) commence the consultation as early as practicable; and
(iv) give prompt consideration to any views about the impact of the proposed
change that are given by the employee or employees concerned and/or their
representatives.”
[62] During the course of the hearing on 13 December 2013, the parties were invited to
comment on the range of issues raised in the submissions in relation to the terms of the draft
relevant term.
[63] Three particular issues arose in relation to draft clause X.2(a). We have already dealt
with the first issue, whether the sub-clause should refer to a ‘change’ or a ‘proposed change’.
For the reasons already given (see paragraph [28] to [38] above) the clause will refer to
proposed changes. For the same reasons we are not attracted to the proposition that
consultation only be required after a ‘definite decision’ has been made to introduce a change.
[64] The second issue concerns whether the clause should be limited to ‘permanent’
changes to an employee’s regular roster or ordinary hours of work. This proposition was
advanced by a number of employer organisations, including the Australian Federation of
Employers and Industries, the Housing Industry Association and Restaurant and Catering
Australia.25 Further, the Aged and Community Services Association proposed that the
obligation to consult not apply in the following circumstances:
“(ii) any change made to an employee’s regular roster or ordinary hours of work to enable
the service of the organisation to be carried on in the case of:
(a) an employee’s unplanned absence;
(b) where another employee is absent from duty at short notice;
[2013] FWCFB 10165
14
(c) in an emergency; or
(d) circumstances outside the control of the employer.”
[65] Similarly, the Australian Hotels Association sought an exemption in respect of
changes due to ‘operational requirements in line with seasonal fluctuations’ or ‘exceptional
circumstances’. The Australian Security Industry Association sought to restrict the operation
of the relevant term to changes which will have a ‘significant effect’.
[66] We are not persuaded that limiting the obligation to consult to permanent changes or
in the manner proposed by the Aged and Community Services Association, the Australian
Hotels Association and a number of other employer organisations would result in a term ‘of
the kind mentioned in s.145A’. The obligation to consult referred to in s.145A(1) attaches to
‘a change’ to an employee’s ‘regular roster or ordinary hours of work’. In this regard we note
that the Revised Explanatory Memorandum to what became the 2013 Amendment Act states:
“regardless of whether an employee is permanent or casual, where that employee has an
understanding of, and reliance on the fact that, their working arrangements are regular and
systematic, any change that would have an impact upon those arrangements will trigger the
consultation requirement ...” [emphasis added]
[67] There is no legislative warrant to limit the operation of the relevant term to changes of
a particular character, a point conceded by a number of employer organisations.26 We also
note that any such limitation would give rise to some definitional issues as to the meaning of
the word ‘permanent’ in this context.
[68] The third issue concerns the reference to an employee’s ‘regular roster or ordinary
hours of work’. The Australian Retailers Association and Clubs Australia submitted that we
should provide a definition of ‘regular roster’. The Australian Hotels Association and
Restaurant and Catering Australia submitted that the relevant term should only apply to
‘regular and systematic’ rosters. We are not persuaded to accede to these submissions. No
definition of ‘regular roster’ is suggested in s.145A and given that we are dealing with a
model clause it would be problematic to construct a definition that would meet the diverse
circumstances of all modern awards: This issue can be further considered in the context of
the 4 yearly review.
[69] We now turn to draft clause X.2(b)(i):
(b) The employer must:
(i) provide to the employee or employees affected and their representatives, if any,
all relevant information about the proposed change, provided that no employer
is required to disclose confidential information the disclosure of which would
be contrary to the employer’s interests;
[70] We have been persuaded to make three changes to the draft sub-clause. We will
remove the words ‘all relevant’ before the word ‘information’ and insert the following after
the words ‘proposed change’:
“(for example, information about the nature of the change to the employees’ regular roster or
ordinary hours of work and when that change is proposed to commence).”
[2013] FWCFB 10165
15
[71] The retention of the words ‘all relevant’ is, we think, unnecessary and may give rise to
practical difficulties. The example now provided gives some guidance as to what information
must be provided, as a minimum. The use of such an example was proposed by the ACTU
and received a measure of support from the Ai Group.27 No party opposed the proposal. The
provision of an illustrative example is consistent with our obligation to ensure that modern
awards are simple and easy to understand (see s.134(1)(g)).
[72] The other change we will make is to remove the words ‘provided that no employer is
required to disclose confidential information the disclosure of which would be contrary to the
employer’s interests’. Such a proviso is no longer necessary as the requirement to provide ‘all
relevant’ information has been deleted.
[73] The requirement in draft clause X.2(b)(i) that employers provide information about the
proposed change to an employees’ representative, if any, attracted some opposition. For
example, Motor Traders Association submitted that the employee’s representative should act
more as a witness than a representative and opposed any requirement to provide information
about a proposed change to the employee’s representative.28 A number of other employer
organisations (eg Australian Childcare Centres Association, Australian Hotels Association
and the Australian Retailers Association) also opposed any requirement to provide
information to an employee’s representative. We are not persuaded by the submissions
advanced on behalf of the Motor Traders Association and others. As we have mentioned, the
relevant term must allow for the representation of the employees affected by a proposed
change to their regular roster or ordinary hours of work. If an affected employee chooses to be
represented then the employer must respect that choice and consult with the affected
employee and their representative.
[74] Paragraph 145A(1)(b) allows for the representation of affected employees ‘for the
purposes of that consultation’. The provision of information and an opportunity to provide
their views about the impact of the change are incidents of the consultation process envisaged
by s.145A. It follows that an employee’s representative, if any, should be provided with
information about the proposed change and be given an opportunity to provide their views
about the impact of such a change.
[75] The ACTU and a number of individual unions submitted that the information required
to be provided to the affected employees and their representatives should be provided ‘in
writing’. It was proposed that the words ‘in writing’ be inserted after the word ‘provide’ in
draft clause X(b)(i). Further, it was submitted that in certain circumstances the employer
should be required to translate such information into an appropriate language. In this regard,
the ACTU supported a provision in the following terms:
“Where the employee’s understanding of written English is limited the employer must take
measures, including translation into an appropriate language, to ensure the employee
understands the proposed change and the employer’s response.”
[76] In support of these proposals the ACTU relied on the terms of the model flexibility
term in modern awards and the provisions relating to the approval of enterprise agreements.
[77] Section 144 of the FW Act provides that a modern award must include a flexibility
term enabling an employee and his or her employer to agree on an individual flexibility
arrangement varying the effect of the award in order to meet the genuine needs of the
[2013] FWCFB 10165
16
employee and employer. Sub-section 144(2)(b) provides that such individual flexibility
arrangements are taken to be a term of the relevant modern award. Sub-section 144(4)(e)
provides that any individual flexibility agreement must be in writing. Clause 7.7 of the model
‘award flexibility term’ is in broadly the same terms as the ACTU sought in these
proceedings.29 But the context is very different. Individual flexibility arrangements vary the
effect of the relevant modern award. In the term we are considering the employer is
exercising an existing right to vary an employee’s regular roster or ordinary hours of work
(albeit that right does not flow from s.145A, but from either the contract of employment or an
industrial instrument) - no variation to the effect of the modern award is contemplated. The
relevant term will simply impose an obligation to consult affected employees and their
representatives, if any.
[78] The same observation may be made in relation to the ACTU’s reliance on the
agreement approval process. Section 186(2)(a) provides that before approving an enterprise
agreement (that is not a greenfields agreement), the Commission must be satisfied that ‘the
agreement has been genuinely agreed to by the employees covered by the agreement’.
Section 188 deals with what constitutes genuine agreement in this context:
“188 When employees have genuinely agreed to an enterprise agreement
An enterprise agreement has been genuinely agreed to by the employees covered by the
agreement if the FWC is satisfied that:
(a) the employer, or each of the employers, covered by the agreement complied with
the following provisions in relation to the agreement:
(i) subsections 180(2), (3) and (5) (which deal with pre-approval steps);
(ii) subsection 181(2) (which requires that employees not be requested to approve
an enterprise agreement until 21 days after the last notice of employee
representational rights is given); and
(b) the agreement was made in accordance with whichever of subsection 182(1) or (2)
applies (those subsections deal with the making of different kinds of enterprise
agreements by employee vote); and
(c) there are no other reasonable grounds for believing that the agreement has not been
genuinely agreed to by the employees.”
[79] The pre-approval steps referred to in s.188(a)(i) include, relevantly, the requirement in
s.180(5):
“(5) The employer must take all reasonable steps to ensure that:
(a) the terms of the agreement, and the effect of those terms, are explained to the
relevant employees; and
(b) the explanation is provided in an appropriate manner taking into account the
particular circumstances and needs of the relevant employees.”
[80] Section 180(6) is also relevant, it states:
“(6) Without limiting paragraph (5)(b), the following are examples of the kinds of employees
whose circumstances and needs are to be taken into account for the purposes of complying
with that paragraph:
(a) employees from culturally and linguistically diverse backgrounds;
[2013] FWCFB 10165
17
(b) young employees;
(c) employees who did not have a bargaining representative for the agreement.”
[81] But, importantly, these provisions relate to enterprise agreements. An enterprise
agreement operates to displace the modern award which would otherwise apply to the relevant
employees (see s.57 and ss.52 and 54 of the FW Act).
[82] It is also important to note that the obligation to provide a copy of the individual
flexibility arrangement and the proposed enterprise agreement ‘in writing’ is specified in the
FW Act (see s.144(4)(e) and (f) and s.180(2)). No such requirement is specified in s.145A.
[83] We are not persuaded to include the provisions sought. The relevant term is intended
to operate in a range of circumstances and across different industries and businesses. The
requirements proposed would impose an unwarranted regulatory burden on business (see
s.134(1)(f)) and would be particularly burdensome for small and medium sized businesses
(see s.3(g)).
[84] For completeness we note that the TCFUA and AMWU supported the inclusion of
these provisions in the awards in which they had an interest. The TCFUA’s proposal was put
on the basis of what was said to be widespread non-compliance in the industries concerned.30
The AMWU submitted that such a provision would assist enforcing award compliance.31 On
the limited material before us we are not prepared to include the provisions sought in those
modern awards. This issue can be the subject of further consideration in the 4 yearly review
of modern awards, which will commence shortly.
[85] We now turn to draft sub-clause X.2(b)(ii):
(b) The employer must:
(ii) invite the employee or employees affected to give their views about the impact
of the proposed change (including any impact in relation to their family or
caring responsibilities);
[86] The ACTU and a number of unions sought two changes to the draft sub-clause:
the inclusion of the words ‘and their representatives’ after the words ‘employees
affected’; and
the addition of the following words at the end of the draft sub-clause: ‘and allow
them a reasonable time to respond’.
[87] We are persuaded to make the first change proposed, for the reasons given at [73] to
[74] above, but not the second.
[88] As to the second proposal we are not persuaded, on the limited material before us, that
such a provision is incidental to the relevant term and ‘essential for the purpose of making
[the relevant term] operate in a practical way’, within the meaning of s.142(1)(b). This
proposal can be reconsidered in the light of experience in the practical application of the
relevant term at the workplace level.
[89] BHP Billiton filed a written submission which sought, among other things, a change to
bracketed words in draft sub-clause X.2(b)(ii). Specifically, it was submitted that the words
[2013] FWCFB 10165
18
‘including any impact in relation to’ be deleted and replaced with the words ‘particularly on’.
It was submitted that such a change was necessary to obviate the risk that ‘employees may
think they are invited to give views well beyond what is relevant’.
[90] A number of organisations opposed the change proposed. For example, Australian
Business Industrial submitted that the proposal involved a departure from the text of s.145A
and was not necessary.32 The ACTU, the Shop Distributive and Allied Employees’
Association and the Australian Hotels Association opposed the change on the basis that it may
act to limit the scope of the invitation for affected employees to provide their views in a
manner not contemplated by s.145A.33
[91] We are not persuaded to adopt the amendment proposed by BHP Billiton. It is an
unwarranted departure from the text of s.145A.
[92] We now turn to draft sub-clause X.2(b)(iii):
(b) The employer must:
... (iii) commence the consultation as early as practicable; and
[93] We have been persuaded to delete this draft sub-clause on the basis that it is
unnecessary. The relevant term imposes an obligation to consult in relation to proposed
changes. The relevant term clearly envisages that consultation will take place before a
proposed change to an employee’s regular roster or ordinary hours of work is implemented.
In such circumstances draft sub-clause X.2(b)(iii) is unnecessary.
[94] We now turn to draft sub-clause X.2(b)(iv):
(b) The employer must:
(iv) give prompt consideration to any views about the impact of the proposed
change that are given by the employee or employees concerned and/or their
representatives.
[95] For the reasons we have set out at paragraph [93] above the word ‘prompt’ should be
deleted. It is unnecessary and may give rise to disputation.
[96] The ACTU proposed the insertion of the words ‘decide within a reasonable time
whether’ in lieu of the words ‘give prompt consideration’. For the same reasons (see
paragraph [93]) we are not persuaded that these words are incidental to the relevant term and
‘essential for the purpose of making [the relevant term] operate in a practical way’, within the
meaning of s.142(1)(b).
[97] The ACTU also proposed the addition of the words ‘may be reasonably
accommodated’ at the end of the draft sub-clause’. In this context the ACTU relied on s.29(2)
of the FW Act and a number of State and Territory statutes that impose a requirement to
reasonably accommodate a person with certain attributes.34 We are not persuaded that s.29(2)
supports the amendment sought by the ACTU. The relevant State and Territory laws will
continue to have force despite any inconsistent provision in a modern award. This amendment
is related to the other ACTU proposed amendment and for the same reason we are not
persuaded to make the change sought.
[2013] FWCFB 10165
19
[98] Two additions to the draft clause were proposed.
[99] The ACTU proposed the insertion of a new paragraph X.2(b)(v) in these terms:
“[The employer must] respond in writing to each affected employee and their representatives
(if any):
addressing the matters raised by them; and
[option 1]
giving notice of any change to the regular roster or ordinary hours of work in
accordance with the applicable provision of this Award (if any)
[option 2]
giving x days notice of any change to the regular roster or ordinary hours of work.”
[100] We are not persuaded to adopt the changes in the form proposed. We have already
rejected a proposal that the employer provide information about the proposed change ‘in
writing’ and for the same reasons we reject the proposition that a response be provided in
writing. Nor are we persuaded to adopt either option 1 or option 2. It seems to us that in each
instance the options impose additional obligations beyond those contemplated by s.145A.
Option 2 imposes a requirement to give a certain period of notice before implementing any
change to an employee’s regular roster or ordinary hours of work. This proposal may conflict
with other provisions in a modern award and in any event is clearly outside the scope of
s.145A. Option 1 suffers from a similar defect. It may operate to delay the giving of notice in
accordance with another provision of the modern award, until the consultation process has
been completed.
[101] We do, however, see some merit in a provision requiring the employer to inform the
affected employee and their representative, if any, of the outcome of their consideration of the
views provided to them regarding the impact of the proposed change. However, a provision
in those terms was only the subject of limited argument in the proceedings before us and
given the time constraint imposed by the transitional provision it is not practical to seek the
views of interested parties before we are obliged to make a determination. In the
circumstances we propose to give this issue further consideration in the context of the 4 yearly
review.
[102] The second addition to the draft clause was proposed by a number of employer
organisations, including the Australian Meat Industry Council, Business SA, the Civil
Contractors Federation and Master Builders Australia, namely, a new sub-clause X.2(c) in
these terms:
“The requirement to consult under this clause does not apply where an employee has irregular,
sporadic or unpredictable working hours.”
[103] It was submitted that such an exclusion would clarify the scope of operation of the
relevant term and was consistent with the modern awards objective.
[104] We note that a provision in the form sought is consistent with the observation in the
Revised Explanatory Memorandum to what became the 2013 Amendment Act (set out at
paragraph [37] above):
[2013] FWCFB 10165
20
“It is intended that the requirement to consult under new section 145A will not be triggered by
a proposed change where an employer has irregular, sporadic or unpredictable working
hours.”
[105] We are satisfied that the change proposed is incidental to the relevant term and
‘essential for the purposes of making [the relevant term] operate in a practical way’, within
the meaning of s.142(1)(b) of the FW Act, and consistent with the modern award objective.
The exclusion will assist in reducing regulatory burden and making the relevant term simpler
and easier to understand (see s.134(1)(f) and (g)).
[106] For completeness we note that the CFMEU submitted that aspects of the existing
consultation term in modern awards (dealing with significant change) be amended to bring it
into conformity with the relevant term. Such a proposal falls outside the determination of a
term of the kind mentioned in s.145A and accordingly falls outside the scope of the present
proceedings.
[107] We will make a determination varying all modern awards to insert a clause in the
following terms:
Consultation about changes to rosters or hours of work
(a) Where an employer proposes to change an employee’s regular roster or
ordinary hours of work, the employer must consult with the employee or
employees affected and their representatives, if any, about the proposed
change.
(b) The employer must:
(i) provide to the employee or employees affected and their representatives,
if any, information about the proposed change (for example, information
about the nature of the change to the employee’s regular roster or
ordinary hours of work and when that change is proposed to commence);
(ii) invite the employee or employees affected and their representatives, if
any, to give their views about the impact of the proposed change
(including any impact in relation to their family or caring
responsibilities); and
(iii) give consideration to any views about the impact of the proposed change
that are given by the employee or employees concerned and/or their
representatives.
(c) The requirement to consult under this clause does not apply where an employee
has irregular, sporadic or unpredictable working hours.
(d) These provisions are to be read in conjunction with other award provisions
concerning the scheduling of work and notice requirements.
[108] We are satisfied that such a determination meets our obligation under the transitional
provisions in Schedule 4 of the FW Act to vary relevant modern awards to include a term of
the kind mentioned in s.145A and is consistent with the achievement of the modern awards
objective.
[2013] FWCFB 10165
21
[109] To the extent that the determination includes matters beyond the express terms of
s.145A we are satisfied that such matters are incidental to a term of the kind mentioned in
s.145A and essential for the purpose of making that term operate in a practical way, within the
scope of s.142(1) and the implied power.
PRESIDENT
Appearances:
A. McCarthy on behalf of the Australian Nursing and Midwifery Federation
S. Burnley on behalf of the Shop, Distributive and Allied Employees Association
V. Wiles on behalf of the Textile, Clothing and Footwear Union of Australia
T. Clarke on behalf of the Australian Council of Trade Unions
J. Watson on behalf of the United Firefighters’ Union of Australia
M. Nguyen on behalf of the “Automotive, Food, Metals, Engineering, Printing and Kindred
Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU)
A. Odgers on behalf of the Independent Education Union of Australia
L. Izzo on behalf of Australian Business Industrial
N. Tindley on behalf of the Australian Retailers Association and the Recruitment and
Consulting Services Association
T. McDonald on behalf of Clubs Australia Industrial
K. Knopp on behalf of Independent Schools Victoria and five other independent school
associations in Australia
W. Chesterman on behalf of the Victorian Automobile Chamber of Commerce and the Motor
Trades Associations of Queensland, New South Wales, South Australia and Western
Australia.
S. Kraemer on behalf of the Master Plumbers, Mechanical Services Association of Australia.
A. Ch’ng on behalf of the Australian Chamber of Commerce and Industry, the Australian
Federation of Employers and Heavy Industries and the Australian Public Transport Industrial
Association.
G Johnson on behalf of Australian Meat Industry Council
A. Grayson on behalf of the Maritime Union of Australia
J. Gunn on behalf of Community Connections Solutions Australia
G. Parkes on behalf of Restaurant and Catering Australia
S. Maxwell on behalf of Construction, Forestry, Mining and Energy Union
R. Baonza on behalf of the Civil Contractors Federation in New South Wales.
B. Ferguson on behalf of the Australian Industry Group and the National Road Transport
Operators Association.
M. Howard Housing Industry Association
G. Boyce on behalf of the Aged and Community Services Employers
H. Wallgren on behalf of Business SA
T. E. Evans on behalf of the Australian Hotels Association Queensland
S. Hills on behalf of the South Australian Mine Industry Association
J. Minchinton and K. Garth on behalf of the Australian Hotels Association
R. Calver and B. Rea on behalf of the Master Builders of Australia
[2013] FWCFB 10165
22
Hearing details:
2013.
Melbourne:
December 13
Printed by authority of the Commonwealth Government Printer
Price code C, PR546270
[2013] FWCFB 10165
23
1 [2013] FWCFB 8728.
2 s.13(1) Acts Interpretation Act 1901.
3 Mills v Meeking (1990) 169 CLR 214 at 235 per Dawson J; R v L (1994) 49 FCR 534 at 538.
4 Ross v The Queen (1979) 141 CLR 432 at 440 per Gibbs J; Project Blue Sky Inc and Others v Australian Broadcasting
Authority (1998) 194 CLR 355 at [70] per McHugh, Gummow, Kirby and Hayne JJ.
5 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [69].
6 BC910541 26 September 1991.
7 Port Louis Corporation v Attorney-General of Mauritis (1965) AC 1111 at 1124; TVW Enterprises Ltd v Duffy and Others
(1985) 60 ALR 687 at 694 per Toohey J.
8 [2010] FCA 591 at [44] to [45] A subsequent appeal against his Honour’s decision failed in relation to the decision to
convict QR of a breach of the relevant enterprise agreement. The appeals against sentence were upheld, but only to the
extent of setting aside the penalties of $390,000; $231,000 and $33,000 in relation to the appellants and inserting the
sums of $192,200; $112,000 and $16,000. (2010) 204 IR 142.
9 CPSU v Vodafone Network Pty Ltd Print PR911257, 14 November 2001 per Smith C (as he then was).
10 Construction, Forestry, Mining and Energy Union v The Newcastle Wallsend Coal Company Pty (Wallsend) Print R0234,
21 December 1998 AIRC (Ross VP, MacBean SDP and Deegan C).
11 Sinfield v London Transport Executive (1970) 1 Ch 550 at 558; cited with approval in Wallsend, at [76] and in Maswan v
Escada Textilvertriels T/A Escada [2011] FWA 4239 at [20] per Watson VP.
12 ARA written submission at paragraph [12].
13 See sub-item 5(2) in Schedule 7 of the 2013 Amendment Act. As to when an enterprise agreement is ‘made’ see s.172 of
the FW Act.
14 Transcript of 13 December 2013 at PN [95] to [97].
15 (1980) 32 ALR 603 at 606. Also see Accident Towing and Advisory Committee v Combined Motor Industries Pty Ltd
[1987] VR 529 at 577-578 and Hunter Resources Ltd v Melville (1988) 164 CLR 234 at 244 per Mason CJ and Gaudron
J.
16 For example, if the regulations and principal act form part of a legislative scheme it may be useful to refer to them to
ascertain the nature of the scheme: Brayson Motors Pty Ltd (in liq) v Federal Commissioner of Taxation (1985) 156 CLR
651 at 652 per Mason J.
17 For example, Ms Kraemer on behalf of the Master Plumbers and the Mechanical Services Association of Australia,
Transcript 13 December 2013 at PN [476] to [478] and Mr Chesterman on behalf of the Motor Traders Association at PN
[483] to [487].
18 ABI written submission at paragraph [17].
19 Transcript of 13 December 2013 at PN [423] to [462].
20 Ibid at PN [225] to [237].
21 See Plaintiff M47/2012 v The Director General of Security [2012] HCA 46; Transport Workers Union of New South Wales
v Australian Industrial Relations Commission [2008] FCAFC 26 at paragraphs [37] and [38].
22 Transcript 13 December 2013 at PN [377].
23 See Attorney-General v Great Eastern Railway Co (1880) 5 App Cas 473 at 478 per Lord Selborne LC; The Trolly,
Draymen and Carters Union of Sydney and Suburbs v The Master Carriers Association of New South Wales (1905) 2 CLR
509 at 516-517 per Griffith CJ and 523-524 per O’Connor J; Zuijs v Wirth Brothers Pty Ltd (1955) 93 CLR 561 at 574 per
Dixon CJ, Williams, Webb and Taylor JJ; R v Gough; Ex parte Australasian Meat Industry Employees’ Union (1965) 114
CLR 394 at 406 per Barwick CJ, 416 per Windeyer J and 422 per Owen J; Re Sterling; Ex parte Esanda Ltd (1980) 30 ALR
77 at 83; Dunkel v Deputy Commissioner of Taxation (NSW) (1990) 27 FCR 524 at 528; Australian Securities Commission v
Bell (1991) 32 FCR 517 at 528 per Sheppard J; Johns v Connor (1992) 35 FCR 1 at 10; and Alice Springs Town Council v
Mpweteyerre Aboriginal Corporation (1997) 115 NTR 25 at 35 per Mildren J, with whom Martin CJ agreed.
24 (2012) 86 ALJR 1372 at [48].
25 AFEI written submissions at paragraph [28]; Transcript of 13 December 2013 at PN [319] and [325] respectively.
26 Ai Group at PN [203] of the Transcript of 13 December 2013 and Australian Business Industrial at PN [383].
27 Transcript of 13 December 2013 at PN [179] to [180] and [212].
28 Transcript 13 December 2013 at PN [469].
29 See Modern Awards Review 2012 - Award Flexibility [2013] FWCFB 2170 at p 48.
[2013] FWCFB 10165
24
30 Transcript of 13 December 2013 at PN [264].
31 Ibid at PN [285].
32 Ibid at PN [383] to [384].
33 Ibid at PN [121] to [127], [281] and [347].
34 Ibid at PN [59] to [79].
