1
Fair Work Act 2009
s.156 - 4 yearly review of modern awards
4 yearly review of modern awards—Pastoral Award 2010
(AM2014/239 and AM2015/23)
JUSTICE ROSS, PRESIDENT
DEPUTY PRESIDENT KOVACIC
COMMISSIONER SAUNDERS
MELBOURNE, 8 JULY 2016
4 yearly review of modern awards - Pastoral Award 2010 – ‘learner shearers’.
1. Background
[1] This Full Bench issued a decision on 24 December 20151 (the December 2015
decision) which dealt with a number of proposed variations to the Pastoral Award 2010 that
had arisen in the context of the Award Stage of the 4 yearly review of modern awards (the
Review). A remaining unresolved issue from the December 2015 decision concerns a claim
by the Australian Workers’ Union (AWU) dealing with ‘learner shearers’.
[2] The AWU seeks to replace the current award term dealing with ‘learner shearers’. The
current award provision is in the following terms:
44.4 Shearers and learner shearers
(a) Shearers will be engaged to shear and/or crutch sheep;
(b) A learner shearer will be engaged as such on production of proof that they qualify for
such status.
[3] The AWU seeks to replace the above provision with the following:
‘44.4 Shearers and learner shearers
Shearers
Shearers will be engaged to shear and/or crutch sheep.
Learner shearers
(i) A learner shall mean a shearer or intending shearer who has not yet shorn
five thousand sheep.
(ii) Of every four stands used at shearing operations and in shearing operations
where four stands only are used, one at least shall be given to or reserved for
a learner who is available at the start of the shed. This does not require a
stand to be left vacant if a learner is not available. Provided that [a] learner
who starts in a shed as a learner may continue to be regarded as a learner
under this clause for a run of sheds, although he or she becomes a shearer,
not a learner, before the run of sheds is completed.
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DECISION
E AUSTRALIA FairWork Commission
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(iii) It shall be obligatory upon such learner to produce to his/her employer or
intended employer a certificate, log book or equivalent in the following form
showing the number of sheep he or she has shorn:
LEARNER’S CERTIFICATE TO BE PRESENTED AT EACH SHEARING
Issued to ……………………………..
Home address ………………………………
Date of issue of certificate ………………………………….
Age ……………………………………..
Date Station Total
sheep
shorn
Average
tally per
day (whole
days)
Signature
of owner or
manager or
shed
overseer
Signature
of learner
Total sheep
shorn prior
to issue of
this
certificate
(iv) The earnings of a learner shearer employed in a shed of four or more
stands shall not be less than he or she would have received had he or
she been employed for the same period as an adult shed hand, plus a
combs and cutters allowance of $19.99 per week. Provided that this
guaranteed payment shall only apply to one specified learner where
four stands only are used and to one specified learner in every four
stands used where more than four stands are used at the shearing. The
agreement of such specified learner shall be endorsed “learner” at the
time it is signed.’
[4] The underlined words are the matters in contention between the various parties.
[5] We propose to deal first with the relevant award history before turning to the proposed
term and the issue in contention.
2. The Relevant Award History
[6] An award provision reserving a certain number of pens for ‘learners’ was first
introduced in 1917. In Australian Workers Union v Pastoralists’ Federal Council of Australia
and others,2 Higgins J determined as follows:
‘Learners
In order to keep up the supply of competent shearers, both sides desire that compulsory
provision should be made for the employment of a certain proportion of ‘learners’ – lads who
have not shorn at three sheds. The clause which I have framed, for one pen in every ten to be
given to or reserved for a learner, is consented by both sides.’3
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[7] In 1965 Commissioner Donovan made a new award – the Pastoral Industry Award
1965 (the 1965 Award) – clause 22 of which dealt with the employment of learners, in the
following terms:
‘22- EMPLOYMENT OF LEARNERS
(a) Herein “learner” means a shearer or intending shearer who has not yet shorn five
thousand sheep.
(b) Of every five stands used at shearing operations and in shearing operations where four
stands only are used, one at least shall be given to or reserved for a learner. Provided that a
learner who starts in a shed as a learner may continue to be regarded as a learner under this
clause for a run of sheds, although he becomes a shearer, not a learner before the run of sheds
is completed.
(c) It shall be obligatory upon such learner to produce to his employer or intended
employer, or any authorised representative of any of the parties to this award, if and when
required, a certificate in the following form, showing the number of sheep he has shorn:-
LEARNERS’ CERTIFICATE.
(To be Presented at Each Shearing)
Issued to ....................................................................................
Home address ...........................................................................
Date of issue of certificate ..................................Age .............
Date Station Total
sheep
shorn
Average
tally per day
(whole days)
Signature of
owner or
manager or
shed
overseer
Signature
of learner
Total sheep
shorn prior
to issue of
this
certificate
(d) The earnings of a learner employed in a shed of four or more stands shall be not less
than the earnings to which he would have been entitled had he been employed for the same
period as an adult shed hand, plus an amount of 13s. per week for combs and cutters.
Provided that the foregoing obligation upon the employer to make such guaranteed
payment shall only apply to one specified learner where four stands only are used and to one
specified learner in every five stands used where five or more stands are used at the shearing.
The agreement of such specified learner shall at the time it is signed be endorsed “learner”.
(e) The provisions of this clause shall not apply to stud shearings.4’
[8] The 1965 Award was varied shortly after it was made to change the proportion of
stands reserved for learners. Clause 22(b) was varied to provide:
‘Of every four stands used at shearing operations and in shearing operations where four
stands only are used, one at least shall be given to or reserved for a learner.’
[9] In the decision which made this variation Commissioner Donovan said:
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‘After considering the submissions of the parties on this matter I have decided to vary the
current award so that it will now provide that of every four stands used at shearing operations
one at least shall be given to a learner.’5
[10] The 1965 Award was later replaced by the 1986 Award. Clause 22 of the 1965 Award
– the ‘Employment of Learners’ remained, largely unaltered, as clause 22 of the 1986 Award.
[11] Clause 22 was removed from the Pastoral Award when the award was modernised in
1998. The removal of clause 22 at that time was presumably on the basis that it dealt with a
non allowable matter, but it is unclear from the relevant decision. The decision in question
dealt with an application by the National Farmers’ Federation (the NFF) to vary the 1986
Award pursuant to Item 49 of Part 2 of Schedule 5 of the Workplace Relations and Other
Legislation Act 1996. The application was consented to by the employer and union parties to
the award. In a short decision dealing with the application Commissioner Merriman states:
‘In respect of this application I am satisfied as to the following matters:
1. The applicant has made reasonable attempts to reach agreement with the other parties
to the award about how the award should be varied and about the treatment of matters
that are not allowable matters.
2. Once varied in accordance with the application before me the award will deal only
with allowable award matters.
3. The application is consistent with the criteria in sub item 7 and 8 of Item 49 of part 2
of Schedule 5 of the WROLA Act 1996.
4. The application is consistent with the Award Simplification Decision principles.’6
[12] While it may be inferred from the above extract that the award was varied to remove
non allowable matters, there is no specific reference to clause 22.
[13] In relation to the issue in contention, it is common ground that the ‘one in four’ term is
not a provision which must be included in a modern award. Hence the issue is whether it is a
term which may be included, pursuant to s.139, or whether it is a term permitted by s.142.
[14] It is convenient to now turn to the legislative context before turning to the proposed
term and the issue in contention.
3. The Legislative Context
[15] The matters we propose to briefly refer to about the legislative context for the Review
are canvassed in more detail in the 4 yearly Review of Modern Awards: Preliminary
Jurisdictional Issues decision7 (the Preliminary Jurisdictional Issues decision) we adopt and
apply that decision.
[16] Subsection 156(2) of the Fair Work Act 2009 (Cth) (the Act) deals with what must be
done in the Review:
(2) In a 4 yearly review of modern awards, the FWC:
(a) must review all modern awards; and
(b) may make:
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(i) one or more determinations varying modern awards; and
(ii) one or more modern awards; and
(iii) one or more determinations revoking modern awards.
(c) must not review, or make a determination to vary, a default fund term of a
modern award.
Note 1: Special criteria apply to changing coverage of modern awards or revoking modern
awards (see sections 163 and 164).
Note 2: For reviews of default fund terms of modern awards, see Division 4A.
[17] The ‘scope’ of the Review was considered in the Preliminary Jurisdictional Issues
decision.8 In the Review the Commission will proceed on the basis that prima facie the
modern award being reviewed achieved the modern awards objective at the time it was made.
Variations to modern awards should be founded on merit based arguments that address the
relevant legislative provisions, accompanied by probative evidence directed to what are said
to be the facts in support of a particular claim. The extent of the argument and material
required will depend on the circumstances.
[18] The modern awards objective (in s.134) applies to the performance or exercise of the
Commission’s ‘modern award powers’, which are defined to include the Commission’s
functions or powers under Part 2-3 of the Act. The Review function in s.156 is in Part 2-3 of
the Act and so will involve the performance or exercise of the Commission’s ‘modern award
powers’. It follows that the modern awards objective applies to the Review. The modern
awards objective is set out in s.134(1) 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:
(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.
This is the modern awards objective.’
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[19] While the Commission must take into account the various matters in s.134(1)(a) to (h),
the relevant question is whether the variation proposed is necessary to achieve the modern
awards objective. It is, however, not necessary to make a finding that the modern award under
review has failed to satisfy at least one of the s.134(1) considerations.9
[20] Section 138 of the Act is also relevant, it emphasises the importance of the modern
awards objective in these terms:
‘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.’
[21] To comply with s.138 the terms included in modern awards must be ‘necessary to
achieve the modern awards objective’. What is ‘necessary’ in a particular case is a value
judgment taking into account the s.134 considerations, to the extent that they are relevant
having regard to the submissions and evidence directed to those considerations. Before
varying a modern award in the Review, the Commission must be satisfied that the variation is
necessary to achieve the modern awards objective.
[22] There are other aspects of the statutory provisions which are relevant in the context of
the present matter. The first concerns the terms that can be or must be included in a modern
award. Section 136 is relevant in this regard, it provides:
136 What can be included in modern awards
Terms that may or must be included
(1) A modern award must only include terms that are permitted or required by:
(a) Subdivision B (which deals with terms that may be included in modern awards); or
(b) Subdivision C (which deals with terms that must be included in modern awards); or
(c) section 55 (which deals with interaction between the National Employment
Standards and a modern award or enterprise agreement); or
(d) Part 2-2 (which deals with the National Employment Standards).
Note 1: Subsection 55(4) permits inclusion of terms that are ancillary or incidental to, or that
supplement, the National Employment Standards.
Note 2: Part 2-2 includes a number of provisions permitting inclusion of terms about particular
matters.
Terms that must not be included
(2) A modern award must not include terms that contravene:
(a) Subdivision D (which deals with terms that must not be included in modern
awards); or
(b) section 55 (which deals with the interaction between the National Employment
Standards and a modern award or enterprise agreement).
Note: The provisions referred to in subsection (2) limit the terms that can be included in
modern awards under the provisions referred to in subsection (1).
[23] Section 139(1) is in Subdivision B and deals with terms that may be included in
modern awards. It provides, relevantly for present purposes, that:
(1) A modern award may include terms about any of the following matters:
(a) minimum wages (including wage rates for junior employees, employees with a
disability and employees to whom training arrangements apply), …
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(f) annualised wage arrangements that:
(i) have regard to the patterns of work in an occupation, industry or enterprise; and
(ii) provide an alternative to the separate payment of wages and other monetary
entitlements; and
(iii) include appropriate safeguards to ensure that individual employees are not
disadvantaged; …
(g) allowances, including for any of the following:
(i) expenses incurred in the course of employment;
(ii) responsibilities or skills that are not taken into account in rates of pay;
(iii) disabilities associated with the performance of particular tasks or work in particular
conditions or locations; …
[24] Section 142 is also relevant, as it provides:
142 Incidental and machinery terms
Incidental terms
(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.
Machinery terms
(2) A modern award may include machinery terms, including formal matters (such as a title,
date or table of contents).
[25] In relation to the issue in contention, it is common ground that the ‘one in four’ term is
not a provision which must be included in a modern award. Hence the issue is whether it is a
term which may be included, pursuant to s.139, or whether it is a term permitted by s.142. To
be permitted by s.142 we must be satisfied that the ‘one in four’ term is incidental to a term
permitted by s.139(1) and is essential for the purpose of making a particular term operate in a
practical way.
[26] The AWU contends that the term is about ‘career structures’ as expressed in
s.139(1)(a), which states:
‘(1) A modern award may include terms about any of the following matters:
(a) minimum wages (including wage rates for junior employees, employees with a disability
and employees to whom training arrangements apply), and:
(i) skill-based classifications and career structures; and
(ii) incentive-based payments, piece rates and bonuses;...’
[27] The Explanatory Memorandum to what became s.139(1)(a) states:
‘Minimum wages
530. Paragraph 139(1)(a) provides for minimum wages to be included in modern awards. This
allows modern awards to include terms about minimum wages, including wage rates for junior
employees, employees with a disability and employees to whom training arrangements apply.
It would also allow modern awards to include terms about skill based classifications and
career structures, incentives based payments, piece rates and bonuses.’
[28] During the course of the proceedings on 9 December 2015, we indicated that we
would be seeking further submissions in relation to this aspect of the learner shearer claim10
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and that is the course which has been adopted. Directions were issued setting out the timetable
for such submissions and providing interested parties with an opportunity to reply to any
submissions filed. In the December 2015 decision we made it clear that we would finalise our
consideration of this claim after taking into account any further submissions filed.
[29] We now turn to the submissions advanced by the parties.
4. The Submissions
[30] As we have mentioned, s.136(1) of the Act sets out the terms which can be included in
a modern award, that is, terms that are permitted or required by:
(i) Subdivision B or C of Part 2-3;
(ii) Section 55 (concerning the interaction of the NES and a modern award); or
(iii) Part 2-2 (which deals with the NES).
[31] Section 136(2) prohibits terms being included in a modern award if they contravene
subdivision D of Part 2-3 or s.55.
[32] The issue in contention turns on the proper construction of ss.139 and 142.
[33] In the present case, in order for the Commission to have the jurisdiction to exercise its
discretion to make a determination varying the Award, under s.156(2)(b)(i), we must be
satisfied that:
(i) the subject matter of the proposed term is one which falls within the scope of s.139; or
(ii) the proposed term is permitted by s.142, in that it is incidental to a term permitted by
s.139(1) and is essential for the purpose of making a particular term operate in a
practical way.
[34] It appears to be common ground that the ‘non-contentious’ aspects of the proposed
term fall within the scope of a s.139 and hence are matters which may be included in a
modern award.
[35] We are satisfied that the proposed definition of a ‘learner shearer’ is a term about a
skill based classification. We are also satisfied that to the extent that proposed clause 44.4(iv)
guarantees a minimum rate of pay for learner shearers it is a term about minimum wages. We
accept the NFF’s submission that certain elements of the proposed term are ‘permitted’ terms
which may be included in a modern award. The NFF submits:
‘It is proposed that new terms defining the classification of ‘learner shearers’ be inserted into
the Award. There are a number of elements to the definition, each of which give meaning to
the classification of learner shearers. Specifically:
a. Proposed clause 44.4(i) - which defines a learner shearer as a person who has not yet
shorn 5000 sheep;
b. The second sentence of proposed clause 44.4(ii) - which deals with the transition from
learner shearer to shearer during a run of sheds;
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c. Proposed clause 44.4(iii) - which requires learner shearers to keep a record of sheep
shorn for the purpose of demonstrating their status as a learner.
Each of the terms above are appropriately characterised as terms about the classification of
learner shearer (s.139(1)(a)(i)).
At the very least, they are incidental to the classification of learner shearer, and are essential
for the purpose of making the classification operate in a practical way (s.142(2)). That is,
without these terms, there is no certainty as to what a ‘learner shearer’ means for the purposes
of the Award.
Modern awards can include terms about minimum wages (s.139(1)(a)).
Proposed clause 44.4(iv) provides that learner shearers will be paid no less than the adult shed
hand rate, plus a combs and cutters allowance of $19.99 per week.
To the extent that proposed clause 44.4(iv) guarantees a minimum rate of pay for learner
shearers, it is a term about permitted matters.’11
[36] We are satisfied that we have the requisite jurisdiction to vary the Pastoral Award
2010 to insert the ‘non-contentious’ aspects of the proposed term. We now turn to the issue in
contention - whether the Commission has the requisite jurisdiction to insert the ‘one in four’
term.
[37] Proposed clause 44.4(ii) requires a fixed minimum allocation of stands used at
shearing operations for learner shearers, as follows:
‘Of every four stands used at shearing operations and in shearing operations where four
stands only are used, one at least shall be given to or reserved for a learner who is
available at the start of the shed.’
[38] In its reply submission of 7 April 2016, the AWU confirmed that the intent of the ‘one
in four’ proposed term is to compel an employer to provide one in four stands to an available
learner shearer.12 It is also relevant to observe that the AWU rejected an amendment
suggested by the Shearing Contractors Association of Australia (the Shearing Contractors) to
insert the words ‘suitable and’ before the word ‘available’ in proposed clause 44.4(ii). The
Shearing Contractors submit that such an amendment is necessary:
‘…in order to take into account that not every person who presents themselves to an employer
as a ‘learner shearer’ may be suitable for the position. The current wording is effectively
forcing the employer to take on any person who presents themselves at the start of a shearing
(where there are 4 stands and no learner) to be employed as the learner shearer and there are
many good reasons so to why the candidate may not be suitable.’13
[39] The AWU reply submission opposes the suggested amendment, for the following
reasons:
‘The problem with inserting reference to a ‘suitable and available’ learner is precisely that
identified in paragraph [9] of the SCAA submission – it will remove the compulsion on an
employer to provide one in four stands to learner shearers because they will be able to
arbitrarily determine if each learner is ‘suitable’. This will make the term ‘ineffectual’ which
is a concern specifically identified by the SCAA at paragraph [9] of their submissions.’14
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[40] The AWU submits that the proposed ‘one in four’ term can be included in the Pastoral
Award 2010 because it is a term ‘ about’:
career structures (s.139(1)(a)(i));
a type of employment (s.139(1)(b)); and/or
piece rates (s.139(1)(a)(ii)).
[41] The AWU contends that ss.139 and 142 are beneficial or remedial provisions and
should be construed accordingly. It also submits that s.15AA of the Acts Interpretation Act
1901 supports the construction for which it contends.
[42] The argument advanced in support of these contentions is set out at paragraphs 46-71
of the AWU’s written submissions of 5 February 2016. In the alternative, the AWU submits
that the proposed ‘one in four’ term is ‘incidental’ to a permitted matter and ‘essential’ for the
purpose of making a particular term operate in a practical way. On this basis the AWU
submits that the proposed ‘one in four’ term can be included in the Pastoral Award 2010,
pursuant to s.142.
[43] Australian Business Industrial and the NSW Business Chamber Ltd (ABI) submits that
the ‘one in four stands’ aspect of the AWU’s proposed variation is not permitted by s.139 or
s.142. ABI does not contest the proposition that ss.139 and 142 are to be characterised as
beneficial provisions, but do submit that:
‘The requirement to interpret a provision consistently with a beneficial intent does not mean that
an interpretation which is not borne out by the ordinary meaning of the words can be preferred,
merely because of the beneficial effect it may have for those who are affect by its operation.’15
[44] ABI identifies the relevant jurisdictional question as whether the proposed provision is
a term ‘about’ any of the subject matters prescribed in s.139(1). It submits that viewed in
context, it is apparent that the legislature deliberately chose the term ‘about’ in s.139, rather
than other terms used elsewhere in Part 2-3 of the Act. For example, s.140(1) allows the
Commission to include terms ‘relating to’ the conditions of outworkers and s.142 provides
that a modern award may include terms that ‘incidental’ to a permitted term and ‘essential’ for
the purpose of making a particular term operate in a practical way.
[45] ABI submits that the word ‘about’ in s.139 is intended to have a more limited
operation than the phrase ‘relating to’ in s.140 and requires a more than ‘incidental’
connection between the award term and one of the subject matters listed in s.139(1).
[46] ABI contends that the ‘one in four’ term is not a term ‘about’ any of the subject
matters prescribed in s.139(1) and nor is the proposed term ‘essential’, within the meaning of
s.142(1)(b), for the purpose of making a particular term of the Pastoral Award 2010 operate
in a practical way. The argument advanced in support of these contentions is set out at
paragraphs 6.1-6.24 of ABI’s submissions in reply of 24 March 2016.
[47] The NFF adopts a similar position to that put by ABI in that it submits that the ‘one in
four’ proposed term is not a permitted term and nor is it ‘essential’ within the meaning of
s.142(1)(b). The essence of the NFF’s argument is set out at paragraphs 25-40 of the NFF’s
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submissions in response of 4 March 2016. Business SA broadly supported the submission
advanced by the NFF.
[48] The Shearing Contractors make no submissions on the jurisdiction of the Commission
to include the ‘one in four’ term in the Pastoral Award 2010, but they do raise a number of
practical concerns which go to the merits of the AWU’s proposal. In short, it submits that:
‘…the SCAA is in favour of initiatives to attract and retain labour to the shearing industry but
the SCAA does not regard that the Award is the appropriate instrument for what is essentially
an ‘attraction and retention’ strategy, sought by the AWU.’ 16
[49] On 7 April 2016, the AWU filed a submission in reply addressing the points advanced
by the ABI, the NFF and the Shearing Contractors.
[50] As we have mentioned, the jurisdictional issue turns on the meaning of the word
‘about’ in s.139(1).
[51] Ascertaining the legal meaning of a statutory provision necessarily begins with the
ordinary grammatical meaning of the words used, having regard to their context and
legislative purpose. Context includes the language of the Act as a whole, the existing state of
the law, the mischief the provision was intended to remedy and any relevant legislative
history.17
[52] Section 15AA of the Acts Interpretation Act 1901 requires that a construction that
would promote the purpose or object of the Act is to be preferred to one that would not
promote that purpose or object (noting that s.40A of the Act provides that the Acts
Interpretation Act 1901, as in force at 25 June 2009, applies to the Act). The purpose or object
of the 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 Act, and another does, the
latter interpretation is to be preferred. Of course, s.15AA requires us to construe the Act, not
to rewrite it, in the light of its purpose.18
[53] The literal meaning (or the ordinary grammatical meaning) of the words of a statutory
provision may be displaced by the context and legislative purpose. As the majority observed
in Project Blue Sky:
‘..the duty of a court is to give the words of a statutory provision the meaning that the legislature
is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will
correspond with the grammatical meaning of the provision. But not always. The context of the
words, the consequences of a literal or grammatical construction, the purpose of the statute or
the canons of construction may require the words of a legislative provision to be read in a way
that does not correspond with the literal or grammatical meaning.’19
[54] Sections 139 and 142 are in Chapter 2 of Part 2-3 of the Act. The purpose of Chapter 2
is to prescribe minimum terms and conditions of employment for national system employees.
We accept that it is appropriate to characterise ss.139 and 142 as remedial or beneficial
provisions. They are intended to benefit national system employees.
[55] The proper approach to the construction of remedial or beneficial provisions was
considered by the Full Bench in Bowker and others v DP World Melbourne Limited T/A DP
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World; Maritime Union of Australia and others20 (‘Bowker’). In Bowker the Full Bench
said:21
‘The characterisation of these provisions as remedial or beneficial has implications for the
approach to be taken to their interpretation. As the majority (per Gibbs CJ, Mason, Wilson and
Dawson JJ) observed in Waugh v Kippen:
“...the court must proceed with its primary task of extracting the intention of the
legislature from the fair meaning of words by which it has expressed that intention,
remembering that it is a remedial measure passed for the protection of the worker. It
should not be construed so strictly as to deprive the worker of the protection which
Parliament intended he should have.”22
Any ambiguity is to be construed beneficially to give the fullest relief that a fair meaning of its
language will allow,23 provided that the interpretation adopted is ‘restrained within the
confines of the actual language employed that is fairly open on the words used.’24 As their
Honours Brennan CJ and McHugh J put it in IW v City of Perth25:
“...beneficial and remedial legislation, like the [Equal Opportunity] Act, is to be given a
liberal construction. It is to be given ‘a fair, large and liberal’ interpretation rather than
one which is ‘literal or technical’. Nevertheless, the task remains one of statutory
construction. Although a provision of the Act must be given a liberal and beneficial
construction, a court or tribunal is not at liberty to give it a construction that is
unreasonable or unnatural.”
If the words to be construed admit only one outcome then that is the meaning to be attributed
to the words. However if more than one interpretation is available or there is uncertainty as to
the meaning of the words, such that the construction of the legislation presents a choice, then a
beneficial interpretation may be adopted.’
[56] We adopt the above remarks and propose to apply them to matter before us.
[57] As to the meaning of the word ‘about’ in s.139(1), we accept the proposition advanced
by ABI that having regard to the legislative context (and particularly s.142), the word ‘about’
requires more than an ‘incidental’ connection between the proposed award term and one of
the subject matters listed in s.139(1).
[58] We also accept that it is appropriate to adopt a liberal construction of the word ‘about’
in s.139(1), to the extent permitted by the context. The particular subject matters set out in
s.139(1) are to be given their ordinary meaning and there is no warrant for a restrictive
construction to be placed on any of them. We note that such an approach is consistent with
that adopted by the Full Bench in the Modern Awards Review 2012 – Apprentices, Trainees
and Juniors Decision26 (the ‘Apprentices decision’).
[59] As to the proper construction of s.142 of the Act, we agree with the following
observation from the Apprentices decision:
‘We agree with the submission of the employers that s.142(1) provides only a relatively narrow
basis for the inclusion of award terms. It is not in itself an additional power for the inclusion of
any terms that cannot be appropriately linked back to a term that is permitted by s.139(1). The
use of the word ‘essential’ suggests that the term needs to be ‘absolutely indispensable or
necessary’ for the permitted term to operate in a practical way.’27
[2016] FWCFB 4393
13
[60] As we have mentioned, the AWU submits, in the alternative, that the ‘one in four’
term is ‘incidental’ to the ‘piece rates’ terms in the Pastoral Award 2010 and ‘essential’ for
the purpose of making those terms operate in a practical way. On that basis the AWU submits
that the prosed term can be included in the Pastoral Award 2010, pursuant to s.142(1).28
[61] Applying the above observations from the Apprentices decision to the present context
we are not satisfied that the proposed ‘one in four’ term is ‘essential’, within the meaning of
s.142(1)(b), for the purpose of making a particular term operate in a practical way. The
piecework terms in the current award are clear in meaning and effect. We agree with the
NFF’s submission that the award terms can operate effectively without inclusion of the
proposed ‘one in four’ term.29
[62] For reasons which will become apparent, we have not found it necessary to
conclusively determine the question of whether the proposed ‘one in four’ provision is a term
‘about’ one or more of the permitted matters in s.139(1).
[63] We are prepared to assume, without deciding the question, that we have the requisite
jurisdiction to vary the Pastoral Award 2010 in the manner proposed by the AWU. But we
are not persuaded by the merit argument advanced by the AWU to exercise our discretion to
vary the award in the manner proposed.
[64] As we have mentioned, the modern awards objective applies to the Review. The
modern awards objective is directed at ensuring that modern awards, together with the NES,
provide a ‘fair and relevant minimum safety net of terms and conditions’, taking into account
the particular considerations identified in paragraphs 134(1)(a) to (h). Section 138 of the Act
is also relevant. It provides that terms only be included in a modern award ‘to the extent
necessary to achieve the modern awards objective’. To comply with s.138 the terms included
in the modern awards must be ‘necessary to achieve the modern awards objective’. What is
‘necessary’ in a particular case is a value judgement taking into account the s.134
considerations, to the extent that they are relevant having regard to the submissions and
evidence directed at those considerations.30
[65] The AWU’s submissions directed at the modern awards objective are primarily set out
at paragraphs 42-46 of its submissions of 6 August 2015.
[66] Turning to the s.134 considerations, we would be prepared to accept that the ‘one in
four’ term would assist the ‘needs of the low paid’ (s134(1)(a)) and may provide increased
employment opportunities for learner shearers (s.134(1)(c) and (h)). Those considerations
weigh in favour of granting the claim. However the proposed term does place a restriction on
the manner which shearing work is organised and in our view is inconsistent with the ‘need to
promote flexible modern work practices and the efficient and productive performance’
(s134(1)(d).
[67] We also note that it has been some 18 years since the ‘one in four’ term was removed
from the predecessor to the Pastoral Award 2010 and there is little or no evidence of the
impact of its removal from the regulatory framework. Further, as the NFF submits:
‘There is no evidence before the Commission to justify a finding that learner shearers are
currently being denied access to shearing work, or that this is likely to occur in the future. All
[2016] FWCFB 4393
14
the evidence points to a shortage of shearers in Australia, and contrary to the AWU’s assertion,
the likelihood that learner shearers will have every opportunity for work when they seek it.’31
[68] The AWU made no response to this aspect of the NFF’s submission, in its reply
submissions of 7 April 2016.
[69] In all the circumstances we are not satisfied that the inclusion of the ‘one in four’
terms is necessary to achieve the modern awards objective. Accordingly we reject this aspect
of the AWU claim.
[70] We now turn to what we have referred to as the ‘non contentious’ aspects of the
proposed clause.
[71] During the course of the December 2015 proceedings the AWU, NFF and the Shearing
Contractors tendered a statement of agreed facts in relation to, among other things, the claim
with respect to learner shearers.32 A copy of the relevant extracts from that statement is set out
at Attachment 1. Relevantly, paragraph 9 of the statement says:
‘Setting a minimum rate of pay for learner shearers in the Pastoral Award 2010 by reference to
wages which have been in established on work value grounds over many years is appropriate
having regard to the nature of the work, the level of skill and responsibility and the conditions
under which work is done.’
[72] We are satisfied that the variation proposed is justified by work value reasons. We
now turn to the minimum wages objective.33
[73] The minimum wages objective requires the Commission to ‘establish and maintain a
safety net of fair minimum wages’, taking into account the matters in s.284(1)(a) to (e),
insofar as they are relevant. The considerations in s.284(1)(a) and (c) are relevant for present
purposes.
[74] The impact of an increase in modern award minimum wages on the ‘performance and
competitiveness of the national economy’ (s.284(1)(a)) will usually be relevant to the
Commission’s consideration of any such claim, though the weight attributed to this matter
will depend on the circumstances. In the context of this case the evidence supports a finding
that despite the absence of an award provision the prevailing practice is to pay a minimum
wage to learner shearers.34 It follows that the economic impact of making the variation
proposed will be very limited. In these circumstances, while we have taken into account the
matter in s.284(1)(a), we attach little weight to this consideration.
[75] Section 284(1)(c) requires that we take into account ‘relative living standards and the
needs of the low paid’. The lack of contemporary data on the earnings of shearers, particularly
learner shearers, makes it difficult to determine whether they are to be regarded as ‘low paid’
within the meaning of s.284(1)(c) (and s.134(1)(a)). But for the reasons given in the
December 2015 decision,35 we accept that at least a significant proportion of learner shearers
are ‘low paid’. The variation proposed will increase the wages required to be paid to learner
shearers and as such it takes account of the ‘needs of the low paid’.
[76] We turn briefly to the other s.284(1) considerations. We are not persuaded that the
matters in s.284(1)(b), (d) and (e) are relevant to this particular issue. We are satisfied that
[2016] FWCFB 4393
15
making the variation will ‘establish … a safety net of fair minimum wages’, as required by the
minimum wages objective. We now turn to the modern awards objective.36
[77] We note first there is a degree of overlap between the considerations set out in ss.134
and 284. The following considerations in each provision are expressed in the same terms:
relative living standards and the needs of the low paid (s.134(1)(a) and
s.284(1)(c));
the need to promote social inclusions through increased workforce
participation (s.134(1)(c) and s.284(1)(b)); and
the principle of equal remuneration for work of equal or comparable
value (s.134(1)(e) and s.284(1)(d)).
[78] Sections 134 and 284 each require the Commission to take into account a range of
economic considerations, though they are differently expressed. Despite these differences the
underlying intention of the various economic considerations referred to in ss.284 and 134 is
that the Commission take into account the effect of its decisions on national economic
prosperity and in doing so give particular emphasis to the economic indicators specifically
mentioned in the relevant statutory provisions.37
[79] For the reasons given, the variation of the Pastoral Award 2010 to insert the amended
learner shearers term will have very limited economic impact and in such circumstances the
economic considerations in s.134(1)(f) and (h) do not weigh against making this variation.
[80] The ‘need to encourage collective bargaining’ (s.134(1)(b)) is a neutral consideration
in relation to this claim. No party contended otherwise. The matters in s.134(1)(c), (d), (da),
(e) and (g) are not relevant to this particular matter.
[81] We are satisfied that the variation we intend to make is necessary to ensure that the
Pastoral Award 2010, together with the National Employment Standards, provides ‘a fair and
relevant minimum safety net of terms an conditions’, in accordance with s.134 of the Act.
[82] For the reasons given, we are satisfied that the variation we propose to make is
justified by work value reasons; is necessary to meet the modern awards objective; and will
‘establish… a safety net of fair minimum wages’ as required by the minimum wages
objective. We will vary the Pastoral Award 2010 to insert the learner shearers term, without
the ‘one in four stands’ elements.
[83] A draft variation determination giving effect to our decision is set out at Attachment 2
and will be posted on the 4 Yearly Review of Modern Awards website. Interested parties will
have until 4:00 pm Friday 15 July 2016 to comment on the draft variation determination.
PRESIDENT
Printed by authority of the Commonwealth Government Printer
Price code C, PR582340
https://www.fwc.gov.au/awards-and-agreements/modern-award-reviews/4-yearly-review/awards-under-review
[2016] FWCFB 4393
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1 [2015] FWCFB 8810
2 (1917) 11 CAR 409
3 Ibid at 409
4 Pastoral Industry-Award-Wages and working conditions (1965) 110 CAR 422 at 446
5 The Australian Workers’ Union v The Graziers’ Association of New South Wales and others (1967) 121 CAR 454 at 464
6 Print P7500, 30 June 1998
7 [2014] FWCFB 1788
8 Ibid
9 National Retail Association v Fair Work Commission [2014] FCAFC 118 at [110]
10 Transcript at paragraph 92
11 NFF submissions dated 4 March 2016 at paragraphs 18-23
12 AWU reply submissions, 7 April 2016 at paragraph 54
13 Shearing Contractors submission dated 4 March 2016 at paragraph 11
14 AWU reply submission 7 April 2016 at paragraph 58
15 ABI submissions in reply 24 March 2016 at paragraph 5.11
16 Shearing Contractors submissions in reply, 4 March 2016 at paragraph 8
17 See Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27 at [47];
CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408; Project Blue Sky Inc v Australian
Broadcasting Authority (1998) 194 CLR 355 at [69]
18 Mills v Meeking (1990) 169 CLR 214 at 235 per Dawson J; R v L (1994) 49 FCR 534 at 538
19 (1998) 194 CLR 355 at [78] per McHugh, Gummow, Kirby and Hayne JJ). Also see Taylor v The Owners - Strata Plan No
11564 [2014] HCA 9 at [65]-[66]
20 [2014] FWCFB 9227
21 Ibid [25]-[27].
22 Waugh v Kippen (1986) 160 CLR 156 at 164
23 Bull v Attorney General (NSW) (1913) 17 CLR 370 at 384
24 See Khoury v Government Insurance Office (NSW) (1984) 165 CLR 622 at 638; and ADCO Constructions Pty Ltd v
Goudappel [2014] HCA 18 at [29] per French CJ, Crennan, Kiefel and Keane JJ
25 (1997) 191 CLR 1 at 12
26 [2013] FWCFB 5411 at [96]-[97]
27 Ibid at [101]
28 AWU submissions 5 February 2016 at paragraph 72
29 NFF submission in response 4 March 2016 at paragraph 35. Also, see ABI’s submission in reply 24 March 2016 at
paragraphs 6.20-6.24)
30 See generally Shop, Distributive and Allied Employees Association v National Retail Association (No.2) (2012) 205 FCR
227
31 NFF’s submissions in response 4 March 2016 at paragraph 41
32 Joint Exhibit 1
33 See [2015] FWCFB 8810 at [52]-[53]
34 See the Statement of Victor McCalman at paragraphs [14] and [15]; the Statement of Danny O’Hare at paragraph [23] and
the AWU’s submission of 6 August 2015 at paragraphs 44-45
35 [2015] FWCFB 8810 at [54]-[60]
36 Ibid at [64]
37 [2015] FWCFB 3500 at [89]; [2015] FWCFB 8810 at [65]-[67]
[2016] FWCFB 4393
17
Attachment 1
MATTER AM2014/239 4 yearly review of the Pastoral Award 2010
STATEMENT OF AGREED FACTS BETWEEN THE AWU, NFF AND SCAA
REGARDING THE CRUTCHING OF RAMS AND RAM STAGS AND LEARNER
SHEARERS
Background
This document contains a statement of agreed facts between the following parties:
● The Australian Workers’ Union (AWU);
● The National Farmers’ Federation (NFF); and
● The Shearing Contractors Association of Australia (SCAA).
The document has been prepared in support of variations sought by the parties on a consent
basis to the Pastoral Award 2010.
…
Learner shearers
The parties agree that:
1. Learner shearer terms have been a feature of the Federal Pastoral Award 2010 for
many years.
2. In 1917, the definition of “learner shearer” was “lads who have not shorn at three
sheds”. This definition was maintained until 1938, when it was varied to mean “a
shearer who has not yet shorn 5000 sheep”.
3. Awarding the variation, Chief Justice Dethridge stated that “the current definition
limits unduly the amount of training required” and “a man does not become a fully
competent shearer (as distinguished from one who should be deemed still a learner)
until he has shorn several thousands of sheep at least in different sheds and in two
seasons.”
4. In 1948, guaranteed minimum rates for learner shearers were introduced into the
Federal Pastoral Award 2010. Justice Donovan stated that the changes were a “means
of giving learners a fairer deal. They have previously found it difficult to make fair
wages in their early shearing.” He went on to state that “the new arrangement will
attract greater numbers of young men into the industry”.38
5. As discussed above, wage rates under the Pastoral Industry Award 1965 were
increased on work value grounds following a decision of McKenzie C of the
Australian Conciliation and Arbitration Commission on 29 September 1981 (Pastoral
Industry Award, 1965 352/81 MD Print E7720). Learner shearer minimum rates were
retained in the Award at this time.
6. On 30 June 1998, Commissioner Merriman issued the Allowable Matters decision
in relation to the Pastoral Industry Award 1998.39 The definition of learner shearer was
retained, but other terms including a guaranteed minimum rate of pay and the
reservation of 1 in 4 stands for learners were removed.
[2016] FWCFB 4393
18
7. The transition to pre-reform awards from 27 March 2006 under the Work Choices
regime meant that the 1998 terms dealing with learner shearers were effectively
preserved.
8. From 2010, award modernisation resulted in the terms of the pre-reform award
dealing with learner shearers being reflected in the Pastoral Award 2010.
9. Setting a minimum rate of pay for learner shearers in the Pastoral Award 2010 by
reference to wages which have been established on work value grounds over many
years is appropriate having regard to the nature of the work, the level of skill and
responsibility and the conditions under which work is done.
38 Judgment – Pastoral Industry (20 August 1948) at p.31
39 Re Pastoral Industry Award 1986 Q3186 (30 June 1998) per Merriman C
[2016] FWCFB 4393
19
Attachment 2—Draft determination
Fair Work Act 2009
s.156 - 4 yearly review of modern awards
4 yearly review of modern awards
(AM2014/239 and AM2015/23)
PASTORAL AWARD 2010
[MA000035]
Agricultural industry
JUSTICE ROSS, PRESIDENT
DEPUTY PRESIDENT KOVACIC
COMMISSIONER SAUNDERS
MELBOURNE, XX MONTH 2016
4 yearly review of modern awards - Pastoral Award 2010 – ‘learner shearers’.
A. Further to the Full Bench Decision issued on 8 July 20161, the above award is varied
as follows:
1. By deleting clause 44.4 and inserting the following:
44.4 Shearers and learner shearers
(a) Shearers
Shearers will be engaged to shear and/or crutch sheep.
(b) Learner shearers
(i) A learner will mean a shearer or intending shearer who has not yet shorn
five thousand sheep.
1 [2016] FWCFB 4393
MA000035 PRxxxx
DRAFT DETERMINATION
[2016] FWCFB 4393
20
(ii) A learner who starts in a shed as a learner will continue to be regarded as
a learner under clause 44.4 for a run of sheds, although they become a
shearer, not a learner, before the run of sheds is completed.
(iii) The learner must produce to their employer or intended employer a
certificate, log book or equivalent in the following form showing the
number of sheep they have shorn:
LEARNER’S CERTIFICATE TO BE PRESENTED AT EACH SHEARING
Issued to ……………………………..
Home address ………………………………
Date of issue of certificate ………………………………….
Age ……………………………………..
Date Station Total
sheep
shorn
Average
tally per day
(whole
days)
Signature of
owner or
manager or
shed
overseer
Signature
of learner
Total sheep
shorn prior
to issue of
this
certificate
(iv) The earnings of a learner shearer will not be less than they would have
received had they been employed for the same period as an adult shed
hand, plus the combs and cutters allowance of $20.36 per week. The
agreement of such specified learner will be endorsed “learner” at the time
it is signed.
B. This determination comes into operation from xx month 2016. In accordance with s.165(3)
of the Fair Work Act 2009 this determination does not take effect until the start of the first full pay
period that starts on or after xx month 2016.
PRESIDENT
