1
Fair Work Act 2009
s.158 - Application to vary or revoke a modern award
Application by United Voice
(AM2013/46; AM2013/47)
Application by the Independent Education Union of Australia
(AM2014/7)
VICE PRESIDENT CATANZARITI SYDNEY, 12 NOVEMBER 2014
Applications to vary modern awards - transitional provisions - Educational Services
(Teachers) Award 2010 [MA000077] and Children’s Services Award 2010 [MA000120].
[1] On 24 December 2013, United Voice filed two applications to vary a modern award.
The applications were filed in relation to the Educational Services (Teachers) Award 2010
[MA000077] and the Children’s Services Award 2010 [MA000120] (the Awards). Both
applications sought to extend certain transitional provisions contained in the Awards from 1
July 2014 to 31 December 2014.
[2] On 30 January 2014, the Independent Education Union of Australia (the IEU) made an
application to vary the Educational Services (Teachers) Award 2010 to the same effect as the
United Voice application. As all three applications (the Applications) deal with related subject
matter, they were heard together in Sydney on 25 and 26 August 2014.
Award Provisions
[3] The Applications seek to vary the following provisions of the Educational Services
(Teachers) Award 2010:
“A.3.7 Notwithstanding clause A.3.5, the following transitional arrangements apply to
an employer in New South Wales which immediately prior to 1 January 2010:
(a) was obliged,
(b) but for the operation of an agreement-based transitional instrument or an
enterprise agreement would have been obliged, or
(c) if it had been an employer in the industry or of the occupations covered by
this award would have been obliged
by the Teachers (Non-Government Pre-Schools (State) Award 2006 (AN120546) or
the Teachers (Non-Government Early Childhood Service Centres Other Than Pre-
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DECISION
E AUSTRALIA FairWork Commission
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Schools) (State) Award 2006 (AN120545) (together, NSW Awards) to pay a minimum
wage higher than that in this award for an employee in New South Wales.
During the period commencing with the first full pay period after 1 January 2011 and
1 July 2014 the employer must
(i) pay no less than the minimum wage in the relevant NSW Award
immediately prior to 1 January 2010; and
(ii) apply any increase in minimum wages in this award resulting from an
annual wage review, including the 2010 annual wage review.
A.3.8 These provisions cease to operate from the beginning of the first full pay period
on or after 1 July 2014.”
[4] The Applications also seek to vary the following provisions of the Children’s Services
Award 2010:
“A.3.7 New South Wales, Western Australia and Tasmania – Other than Division
2B State award employers
The following transitional arrangements apply to an employer in New South Wales,
Western Australia and Tasmania which, immediately prior to 1 January 2010:
(a) was obliged,
(b) but for the operation of an agreement-based transitional instrument or an
enterprise agreement would have been obliged, or
(c) if it had been an employer in the industry or of the occupations covered by
this award would have been obliged
by a transitional minimum wage instrument and/or an award-based transitional
instrument to pay a minimum wage higher than that in this award for an employee
engaged in a classification lower than Children’s Services Employee Level 3.1 and all
classifications of Support Worker in Tasmania and Western Australia, and for all
classifications in New South Wales.
The employer must:
(i) continue to pay no less than the minimum wage in the transitional minimum
wage instrument and/or award-based transitional instrument; and
(ii) apply any increase in minimum wages in this award resulting from an
annual wage review.
A.3.8 New South Wales and Tasmania – Division 2B State award employers
The following transitional arrangements apply to an employer in New South Wales
and Tasmania which, immediately prior to 1 January 2011:
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(a) was obliged,
(b) but for the operation of a Division 2B State employment agreement or an
enterprise agreement would have been obliged, or
(c) if it had been an employer in the industry or of the occupations covered by
this award would have been obliged
by a Division 2B State award to pay a minimum wage higher than that in this award
for an employee engaged in a classification lower than Children’s Services Employee
Level 3.1 and all classifications of Support Worker in Tasmania and for all
classifications in New South Wales.
The employer must:
(i) continue to pay no less than the minimum wage in the Division 2B State
award and
(ii) apply any increase in minimum wages in this award resulting from an
annual wage review.
A.3.9 These provisions cease to operate from the beginning of the first full pay period
on or after 1 July 2014.”
[5] The effect of the variations sought is to extend these transitional provisions until 31
December 2014.
Power to Vary Modern Awards
[6] The Applications are brought pursuant to s.157 of the Fair Work Act 2009 (the Act)
which provides as follows:
“157 FWC may vary etc. modern awards if necessary to achieve modern awards
objective
(1) The FWC may:
(a) make a determination varying a modern award, otherwise than to vary
modern award minimum wages or to vary a default fund term of the award; or
(b) make a modern award; or
(c) make a determination revoking a modern award;
if the FWC is satisfied that making the determination or modern award outside the
system of 4 yearly reviews of modern awards is necessary to achieve the modern
awards objective.
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Note 1: The FWC must be constituted by a Full Bench to make a modern award (see
subsection 616(1)).
Note 2: Special criteria apply to changing coverage of modern awards or revoking
modern awards (see sections 163 and 164).
Note 3: If the FWC is setting modern award minimum wages, the minimum wages
objective also applies (see section 284).
(2) The FWC may make a determination varying modern award minimum wages if
the FWC is satisfied that:
(a) the variation of modern award minimum wages is justified by work value
reasons; and
(b) making the determination outside the system of annual wage reviews and
the system of 4 yearly reviews of modern awards is necessary to achieve the
modern awards objective.
Note: As the FWC is varying modern award minimum wages, the minimum wages
objective also applies (see section 284).
(3) The FWC may make a determination or modern award under this section:
(a) on its own initiative; or
(b) on application under section 158.”
[7] Section 134 of the Act sets out the modern awards objective as follows:
“134 The modern awards objective
What is the modern awards objective?
(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
(da) the need to provide additional remuneration for:
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(i) employees working overtime; or
(ii) employees working unsocial, irregular or unpredictable hours; or
(iii) employees working on weekends or public holidays; or
(iv) employees working shifts; 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.”
[8] The Applications also refer to powers conferred on the Fair Work Commission by the
Awards. Both Awards contain a clause in similar terms to cl. 2.6 of the Children’s Services
Award 2010:
“2.6 The Fair Work Commission may review the transitional arrangements:
(a) on its own initiative; or
(b) on application by an employer, employee, organisation or outworker entity covered
by the modern award; or
(c) on application by an organisation that is entitled to represent the industrial interests
of one or more employers or employees that are covered by the modern award; or
(d) in relation to outworker arrangements, on application by an organisation that is
entitled to represent the industrial interests of one or more outworkers to whom the
arrangements relate.”
Submissions
United Voice
[9] United Voice submitted that the cessation of the transitional provisions will have a
significant deleterious impact upon low paid workers in the Early Childhood Education and
Care (ECEC) sector in New South Wales. It was submitted that the decrease in minimum
wages for employees covered by the transitional provisions would vary between $1.52 per
week and $110.20 per week for full time employees employed by long day care centres, and
$3.80 per week and $79.42 per week for employees employed by pre-schools.
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[10] United Voice submitted that on 15 July 2013 it made an application seeking an equal
remuneration order pursuant to s.302(1) of the Act. The equal remuneration order would, if
successful, remedy the drop in wages for employees covered by the Awards. However, it was
submitted that this application will not be heard and determined before the cessation of the
transitional arrangements, and therefore United Voice seeks to vary the Awards to remedy
this position.
[11] United Voice submitted that the variations were necessary at this time, outside of the
prescribed periodic reviews, in order to ensure that the Awards continue to meet the modern
awards objective. It was submitted that a number of factors had arisen since the making of the
transitional provisions to support a finding that the variations are justified and are not an
attempt to re-agitate settled issues.
[12] These factors can be summarised as follows:
1. The cessation of the transitional provisions will have unfair consequences for an
undetermined (and difficult to ascertain) number of employees who will suffer
hardship.
2. The implementation of the National Quality Framework has resulted in a large number
of ECEC employees being required to undertake further training. If the Applications
are unsuccessful, employees’ wages may reduce at a time when employees are also
burdened with the costs associated with their studies.
3. Employees would be ineligible for a take-home pay order in the manner envisioned by
the Act.
4. The Applications should be considered in light of the modern awards objective that
relates to the principle of equal remuneration for work of equal or comparable value
(s.134(1)(e) of the Act). In circumstances where substantial proceedings are before the
Fair Work Commission (the Commission) that seek to address “significant
inadequacies” in the rates of pay in the Awards, it is necessary for the Commission to
make the proposed variations.
5. There is no compelling reason why the conclusion of the transition period for the New
South Wales transitional provisions was July 2014 and not a later date.
6. The Act provides for a transitional period of up to 5 years; transitional provisions may
continue to operate until 31 December 2014.
7. Had United Voice known that the equal remuneration matter would remain
undetermined as at 1 July 2014, it would have endeavoured to obtain a term for the
transitional provisions that concluded on 31 December 2014.
IEU
[13] The IEU also submitted that it was necessary to extend the operation of the transitional
arrangements in the Awards in order to achieve the modern awards objective. The IEU sought
to rely on the following facts in making its submissions:
1. There is a shortage of teachers in the children’s services and early childhood education
industry in New South Wales.
2. Employers have difficulty attracting and retaining teachers in the industry in New
South Wales.
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3. The above two factors impact on the quality of services and detrimentally affect
children’s developmental outcomes and emotional wellbeing.
4. The majority of employees covered by the Educational Services (Teachers) Award
2010 are award reliant and are low paid.
5. The rates of pay in New South Wales prior to the making of the Educational Services
(Teachers) Award 2010 were in part based on the outcome of a decision that
determined that there was not equal remuneration for work of equal or comparable
value.
6. Teachers at long day care centres and preschools are paid less than teachers employed
by government or independent schools.
7. Teachers are more likely to prefer working at government or independent schools
because of higher wages and better career progression.
8. A lower wage may mean that more teachers may leave the industry and teach at a
government or independent school.
[14] The IEU submitted that the following exceptional circumstances justified the
Commission exercising its power to vary the Educational Services (Teachers) Award 2010:
1. The substantial difference between the transitional rate of pay and the minimum rate
of pay in the Teacher’s Award is likely to impact on teachers not entering the industry
and those in the industry choosing to leave the industry.
2. The substantial difference between the transitional rate of pay and the minimum rate
of pay in the Teacher’s Award is likely to detrimentally impact on the employers’
capacity to recruit and retain teachers which will impact on productivity, employment
costs and quality of services offered to children.
3. The majority of employees are award reliant and low paid.
4. Take-home pay orders are not available for these employees.
5. The employees are subject to equal remuneration proceedings that are part heard.
6. There is no evidence that employers would suffer hardship if the Applications are
granted.
Goodstart Early Learning Limited
[15] Goodstart Early Learning Limited (Goodstart) currently employs approximately
13,000 early childhood workers in 641 long day care centres within Australia. Goodstart made
submissions in these proceedings that it did not oppose the Applications as the Goodstart
Enterprise Agreement provided for wage increases that are not directly tied to the wage rates
set out in either of the Awards.
Australian Business Industrial and the New South Wales Business Chamber Ltd
[16] Australian Business Industrial and the New South Wales Business Chamber Limited
(ABI and NSWBC) opposed the Applications. ABI and NSWBC submitted that it was
“entirely uncontroversial and inherently necessary” as a part of the modern award process that
some minimum benefits would move up and that others would move down when compared to
the previously applicable benefits.
[17] It was submitted that the transitional arrangements in the Awards came about as a
result of an “industrial deal” between various interested parties involved in the modern award
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process. It was submitted that this was a private deal and as such, neither the Commission nor
any person not involved in the making of the deal is privy to its original motivation.
[18] It was submitted that the “necessary” element of s.157 of the Act set a high bar for the
Commission to be satisfied that it should vary an award. It was further submitted that there
had been no suggestion in the proceedings that the Applications involved any consideration of
“work value reasons” as required by s.157.
[19] It was submitted that it was “axiomatic” that the higher transitional minimum wage
rates were not necessary to achieve the modern awards objective as the “final” rates that
commenced operation on 1 July 2014 had been set for that very purpose, and that these “final”
rates had been confirmed by the Commission as operating to give effect to the fair and
relevant minimum safety net of terms and conditions contemplated by s.134 of the Act.
[20] ABI and NSWBC also submitted that employees covered by the Awards have had the
benefit of circumstances that no other Australian employees have enjoyed due to the industrial
deal. It was submitted that by not allowing the Applications, the Commission would simply
be putting those employees covered by the Awards in the same position as all other
employees and employers in Australia covered by modern awards. It was submitted that this
is an entirely uncontroversial and common place circumstance.
[21] It was submitted that in these circumstances, nothing arises that would move the
Commission to reinstate the transitional rates of pay.
[22] It was further submitted that the Commission should have regard to the fact that the
transitional arrangements arose from an industrial deal, and that “doubtless” all parties
understood and agreed to the industrial deal on the basis that it expired on 30 June 2014. It
was submitted that equity dictates that it would be inappropriate for the Commission to
impose conditions upon the parties that are contrary to the terms of the industrial deal.
The Australian Federation of Employers and Industries
[23] The Australian Federation of Employers and Industries (AFEI) also opposed the
Applications. It was submitted that any submissions that employees under the Awards would
not be eligible for take-home pay orders if the employees suffered a reduction in wages
following the cessation of the transitional provisions were misapprehended.
[24] Sub-item 13A of Schedule 5 of the Fair Work (Transitional Provisions and
Consequential Amendments) Act 2009 is set out at sub-regulation 3B.04 of the Fair Work
(Transitional Provisions and Consequential Amendments) Regulations 2009 as follows:
“13A Modern award terms giving FWA power to make take-home pay orders
(1) A modern award may include terms that give FWA power to make an order (a
take-home pay order) remedying a reduction in take-home pay suffered by an
employee or outworker, or a class of employees or outworkers, as a result of the
making of a modern award or the operation of any transitional arrangements in
relation to the award (whether or not the reduction in take-home pay is a
modernisation-related reduction in take-home pay).
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(2) An employee’s or outworker’s take-home pay is the pay an employee or
outworker actually receives:
(a) including wages and incentive-based payments, and additional amounts
such as allowances and overtime; but
(b) disregarding the effect of any deductions that are made as permitted by
section 324 of the FW Act.
Note: Deductions permitted by section 324 of the FW Act may (for example) include
deductions under salary sacrificing arrangements.
(3) This Part applies to an employee or outworker, or a class of employees or
outworkers, to whom a modern award applies if the employee, employees, outworker
or outworkers are likely to suffer a reduction in take-home pay attributable to the
making of a modern award or the operation of any transitional arrangements in
relation to the award.”
[25] Both Awards contain the following clause in relation to take-home pay orders:
“2.4 Neither the making of this award nor the operation of any transitional arrangements
is intended to result in a reduction in the take-home pay of employees covered by the
award. On application by or on behalf of an employee who suffers a reduction in take-
home pay as a result of the making of this award or the operation of any transitional
arrangements, the Fair Work Commission may make any order it considers appropriate
to remedy the situation.”
[26] It was also submitted that there was no relationship between the equal remuneration
orders that have been sought in relation to the ECEC sector and the Applications. It was
submitted that in any event, the equal remuneration proceedings are unlikely to be finalised
prior to 31 December 2014, and no evidence had been put on in relation to the likely success
of the equal remuneration proceedings.
[27] It was further submitted that the evidence relied upon by the IEU and United Voice
was of little probative value to the Commission, and that it went “nowhere near” that which
the Commission has previously said is required to satisfy it to vary an award on the grounds
of necessity.
Australian Childcare Centres Association and the Australian Childcare Alliance
[28] The Australian Childcare Centres Association and the Australian Childcare Alliance
(ACCA and ACA) submitted that the industrial deal was the motivating factor behind the
inclusion of the transitional provisions in the Awards, not any concern of the full bench that
made the award to preserve the rates set as a result of the New South Wales Industrial
Relations Commission equal remuneration decision.
[29] The ACCA and ACA further submitted that the fact that the transitional provisions in
the Children’s Services Award 2010 extend to Western Australia and Tasmania suggests that
the New South Wales Industrial Relations Commissions decision was not a relevant factor in
inserting the transitional provisions into the Awards.
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[30] It was also submitted that it was a “fundamental understanding” of the parties to the
industrial deal that it would expire on 1 July 2014. It was submitted that the ACCA and ACA
were parties to the industrial deal, and that their opposition to the Applications could be taken
as a clear sign that it is not possible to retrospectively assert that had the expiry date of the
transitional provisions been set as 31 December 2014 as opposed to 1 July 2014 that the same
consent arrangement would have been reached.
United Voice Reply Submissions
[31] United Voice agreed that consensus was reached by the relevant parties in respect to
the drafting of the transitional provisions during the modern award process. However, it was
submitted that there was no compelling reason why the conclusion of the transition period
was July 2014 rather than a later date. United Voice submitted that in its view, it is likely that
the industrial deal would still have been reached at that time had an alternative date, such as
31 December 2014, been included as the end date of the transitional provisions.
[32] United Voice also submitted in reply to the AFEI submissions in relation to take-home
pay orders that sub-item 8 of Schedule 5 of the Fair Work (Transitional Provisions and
Consequential Amendments) Act 2009 would not apply to employees under the Awards as,
under that provision, the relative comparator for a take-home pay order would be the rates of
pay at the time the modern award came into operation. As the pay rates under the Awards
have increased since that time, it is unlikely that employees would be able to apply for a take-
home pay order pursuant to sub-item 8 of Schedule 5 of the Fair Work (Transitional
Provisions and Consequential Amendments) Act 2009.
[33] It was also submitted that s.157(1) of the Act, as opposed to s.157(2), does not require
the Commission to be satisfied that the variation of a modern award is justified by work value
reasons. As the Applications have been brought pursuant to s.157(1), there is no need to
address work value reasons.
[34] Finally, United Voice submitted in reply that the equal remuneration matter is relevant
insofar as it relies on the aspect of the modern awards objective that relates to the principle of
equal remuneration for work of equal or comparable value. It was submitted that the equal
pay decision of the New South Wales Industrial Relations Commission supports the view that
there is a serious question to be tried with respect to fairness of the minimum rates of pay in
the ECEC sector, and that while no outcome is certain, employees should be given the benefit
of the full 5 year transitional period whilst those proceedings are dealt with.
IEU Reply Submissions
[35] The IEU submitted that the AFEI had conflated the concepts of “review” pursuant to
Item 7 of Schedule 5 of the Fair Work (Transitional Provisions and Consequential
Amendments) Act 2009 with the exercise of power pursuant to s.157 of the Act, and that these
concepts should not be confused.
Submissions in Relation to Interim Orders
[36] On 24 June 2014, I published a decision1 dismissing an application to make interim
orders preserving the transitional provisions until this matter was dealt with.
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[37] In making my decision in relation to the substantive Applications, I have had regard to
all of the written submissions that were filed with respect to the interim order application.
Consideration
[38] A Full Bench recently considered the exercise of power pursuant to s.157(1) of the Act
as follows:
“Under s.157(1) the Commission must be satisfied that ‘a determination varying a
modern award ... is necessary to achieve the modern awards objective’ (emphasis
added). In Shop, Distributive and Allied Employees Association v National Retail
Association (No 2) (SDA v NRA (No 2)) [(2012) 205 FCR 227] Tracey J considered the
proper construction of s.157(1). His Honour held:
‘The statutory foundation for the exercise of FWA’s power to vary modern
awards is to be found in s 157(1) of the Act. The power is discretionary in
nature. Its exercise is conditioned upon FWA being satisfied that the variation
is “necessary” in order “to achieve the modern awards objective”. That
objective is very broadly expressed: FWA must “provide a fair and relevant
minimum safety net of terms and conditions” which govern employment in
various industries. In determining appropriate terms and conditions regard must
be had to matters such as the promotion of social inclusion through increased
workforce participation and the need to promote flexible working practices.
The subsection also introduced a temporal requirement. FWA must be satisfied
that it is necessary to vary the award at a time falling between the prescribed
periodic reviews.
The question under this ground then becomes whether there was material
before the Vice President upon which he could reasonably be satisfied that a
variation to the Award was necessary, at the time at which it was made, in
order to achieve the statutory objective...
In reaching my conclusion on this ground I have not overlooked the SDA’s
subsidiary contention that a distinction must be drawn between that which is
necessary and that which is desirable. That which is necessary must be done.
That which is desirable does not carry the same imperative for action. Whilst
this distinction may be accepted it must also be acknowledged that reasonable
minds may differ as to whether particular action is necessary or merely
desirable. It was open to the Vice President to form the opinion that a variation
was necessary.’
We are satisfied that s.138 is relevant to the Review. We also accept that the
observations of Tracey J in SDA v NRA (No.2), as to the distinction between that
which is “necessary” and that which is merely desirable, albeit in a different context,
are apposite to any consideration of s.138.”2
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[39] In determining whether or not the variations sought by the IEU and United Voice are
necessary as opposed to desirable, close regard must be had to the modern awards objective,
which I have set out above.
[40] I am not satisfied, on the basis of the material before me, that not varying the Awards
will result in teachers choosing not to enter the industry, or teachers choosing not to stay in
the industry. The 2013 National Early Childhood Education and Care Workforce Census,
which was attached to the evidence of Ms Verona Heron, IEU Industrial Officer, shows that
87% of respondents were satisfied with their jobs, despite only 48.9% of respondents agreeing
that they were satisfied with their pay and conditions. This data reinforces the concept that a
holistic approach must be taken to determining the impact that pay and conditions will have
on retaining teachers within the industry and attracting teachers to the industry.
[41] The Productivity Commission’s Draft Report on Childcare and Early Childhood
Learning3 found that “the earnings of the ECEC workforce are predominantly determined
through awards. The Productivity Commission (2011) found that over 70 per cent of ECEC
educators and around 35 per cent of ECEC directors had their wages set via the award in
comparison to around 20 per cent of the rest of the workforce.”4 The Draft Report further
finds that “almost all long day care teachers and preschool teachers are employed on wages
and conditions that do not compare favourably with those offered in the school system.”5 The
Draft report also finds that there is “substantial evidence” of widespread staff shortages in the
ECEC sector, particularly in regional and remote areas of New South Wales.6
[42] While I accept the above evidence, I am not satisfied that these factors render it
necessary for the Commission to vary the Awards in the terms sought by the IEU and United
Voice outside of the 4 yearly review process. The evidence before me did not provide a
sufficient basis for me to find that the proposed variations would have a substantial impact on
the factors identified in the Productivity Commission’s Draft Report, particularly in
circumstances where the proposed variations are limited to extending the operation of the
transitional provisions until the end of 2014. While it was suggested that there are other steps
that could be taken by the unions after 31 December 2014 and that “the fact that this order is
sought until 31 December should not be weighed against the applicants,”7 the unions were
unable to articulate what their options might be to extend the operation of the transitional
provisions after 31 December 2014. The Applications must be considered on their own terms
and at the present point in time.
[43] I am also not satisfied that take-home pay orders pursuant to clause 2 of the Awards
and Sub-item 13A of Schedule 5 of the Fair Work (Transitional Provisions and
Consequential Amendments) Act 2009 would not be available to employees whose take-home
pay is affected by the ceasing of the transitional provisions. However, I make no positive
finding to this effect and any such application must be dealt with on its own merits.
[44] I am further not satisfied that the existence of the equal remuneration proceedings is a
factor that affects the interaction between the Awards and the modern awards objective. The
equal remuneration proceedings do go towards a principle that constitutes part of the modern
awards objective (namely, the principle of equal remuneration for work of equal or
comparable value). However, it is not clear how the fact that these proceedings are on foot
affects the capacity of the Awards to achieve the modern awards objective.
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[45] Significant reference has been made throughout the proceedings to the “industrial
deal” that resulted in the current form of the transitional provisions. While some evidence was
put on to attempt to explain the circumstances of the industrial deal, insufficient evidence was
available for any conclusions to be drawn in relation to the industrial deal except to the extent
that the industrial deal clearly contemplated the expiry of the transitional provisions on 1 July
2014.
[46] I have considered the Applications in light of the Awards in their current form and in
light of their context and history. The existence of an industrial deal bore little impact on my
consideration.
Conclusion
[47] I am not satisfied, on the basis of the material before me, that it is necessary to vary
the Awards outside of the 4 yearly review in order to achieve the modern awards objective.
Nor am I satisfied that the Commission should exercise any power it has pursuant to clause
2.6 of the Awards to vary the transitional arrangements in the Awards. The Applications are
dismissed.
VICE PRESIDENT
Appearances:
J Nolan of Counsel for United Voice.
L Andelman of Counsel for the Independent Education Union of Australia.
J Shingles for the Australian Child Care Association and the Australian Childcare Alliance.
N Ward with M Roucek for Australian Business Industrial and the New South Wales Business
Chamber Limited.
S Forster for the Australian Federation of Employers and Industries.
J Gunn for Community Connections Solutions Australia.
Hearing details:
2014.
Sydney:
August 25, 26.
Printed by authority of the Commonwealth Government Printer
Price code C, PR557391
THE FAIR WORK COMMISSION THE SEAA
[2014] FWC 7838
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1 [2014] FWC 4197.
2 4 Yearly Review of Modern Awards: Preliminary Jurisdictional Issues [2014] FWCFB 1788, [38]-[39].
3 Exhibit 4.
4 Exhibit 4, p. 475.
5 Ibid.
6 Ibid pp. 486–487.
7 Transcript, PN695.
