[2013] FWC 10151

FAIR WORK COMMISSION

DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch. 5, item 6 - Review of all modern awards (other than modern enterprise and State PS awards) after the first 2 years

Modern Awards Review 2012 - Waste Management Award 2010
(AM2012/216 and AM2012/226)

Waste management industry
SENIOR DEPUTY PRESIDENT HARRISON	SYDNEY, 23 DECEMBER 2013

Modern Awards Review 2012 - two year review of all modern awards - Waste Management Award 2010.

[1] This decision concerns applications to vary the Waste Management Award 2010 1 (the Award) as part of the two year review of all modern awards which the Fair Work Commission (Commission) is required to conduct under Schedule 5, item 6 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Transitional Act).

The applications

[2] The following applications to vary the Award were referred to me for determination: 2

● AM2012/46: Mr Charles Kajewski and nine other individuals (Mr Kajewski);

● AM2012/203: the Transport Workers’ Union of Australia (TWU);

● AM2012/216: the Waste Contractors and Recyclers Association (WCRA); and

● AM2012/226: the Australian Industry Group (Ai Group).

[3] The applications were discussed in a number of conferences. The applications filed by Mr Kajewski and the TWU were ultimately withdrawn in their entirety. The WCRA pressed one aspect of its application before me and the Ai Group reached a compromise about its application with the industry parties. I refer to this later in this decision.

[4] On 15 October 2013, I issued a statement and directions 3 and attached a document which outlined how I proposed to deal with the two outstanding matters. An opportunity was provided to interested parties to file submissions with respect to those proposals. No such submissions were filed.

The legislative provisions

[5] Item 6 of Schedule 5 to the Transitional Act provides:

“6 Review of all modern awards (other than modern enterprise awards and State reference public sector modern awards) after first 2 years

(1) As soon as practicable after the second anniversary of the FW (safety net provisions) commencement day, FWA must conduct a review of all modern awards, other than modern enterprise awards and State reference public sector modern awards.

(2) In the review, FWA must consider whether the modern awards:

(a) achieve the modern awards objective; and

(b) are operating effectively, without anomalies or technical problems arising from the Part 10A award modernisation process.

(2A) The review must be such that each modern award is reviewed in its own right. However, this does not prevent FWA from reviewing 2 or more modern awards at the same time.

(3) FWA may make a determination varying any of the modern awards in any way that FWA considers appropriate to remedy any issues identified in the review.

(4) The modern awards objective applies to FWA making a variation under this item, and the minimum wages objective also applies if the variation relates to modern award minimum wages.

(5) FWA may advise persons or bodies about the review in any way FWA considers appropriate.

(6) Section 625 of the FW Act (which deals with delegation by the President of functions and powers of FWA) has effect as if subsection (2) of that section included a reference to FWA’s powers under subitem (5).”

[6] Section 134 of the Fair Work Act 2009 sets out the modern awards objective:

“134 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

(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.”

Clauses 3 and 4 - Coverage

[7] In an amended application, Ai Group sought to replace the current definition of “waste management industry” found in clause 3.1 of the Award with:

“Waste management industry means:

(a) the collection, transportation, handling or disposal of waste material including the operation of waste transfer stations, landfill sites, compost facilities, incinerators and waste treatment facilities;

(b) recycling depots or yards and terminals operated by an employer principally engaged in the activities defined in paragraph (a).”

[8] It also sought to insert a new clause 4.2:

“4.2 This award does not cover employers or employees engaged in the recycling of products and materials covered by the Manufacturing and Associated Industries and Occupations Award 2010, the Timber Industry Award 2010 or the Quarrying Award 2010.”

[9] The Ai Group application was discussed on numerous occasions in conference before me and in discussions between the industry parties. The outcome is that Ai Group withdrew its application on the basis of six understandings relating to award coverage of recycling activities, which were agreed to by Ai Group, Australian Business Industrial, Master Builders Australia, the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union, the Construction, Forestry, Mining and Energy Union and the Australian Workers’ Union. 4 The Housing Industry Association also advised of its support for the understandings reached between the aforementioned parties.5

[10] The agreed understandings are as follows:

1. Recycling activities are covered by a number of modern awards.

2. The term “recycling” and other terms relating to recycling activities do not have a fixed meaning and take their meaning from the context of the particular modern award.

3. Determining which modern award covers an employer engaged in recycling activities involves consideration of such matters as:

• The industry in which the relevant employer is engaged;



• The type of work carried out by the employees of the employer;



• The coverage terms of relevant pre-modern awards in the context of interpreting relevant coverage terms of modern awards; and



• The coverage provisions of relevant modern awards.

4. Where an employer is covered by more than one modern award, an employee of that employer is covered by the award classification which is most appropriate to the work performed by the employee and to the environment in which the employee normally performs the work. Where there is no classification for a particular employee in an award, it is possible that the employer and that employee are covered by an award with occupational coverage.

5. Given these understandings, Ai Group will withdraw its application to vary the Waste Management Award 2010 in AM2012/226.

6. These understandings do not affect the rights of any party to pursue an award variation to address problems which may arise regarding overlapping award coverage of recycling activities.

[11] Correspondence was sent to my chambers on behalf of the WCRA noting that, along with the TWU and the Australian Road Transport Industry Organisation, it was not a party to these understandings. Nonetheless, I indicated to the parties I would reproduce these understandings in this decision.

Clause 19.1 - Minimum wages

[12] The WCRA applied to vary clause 19.1 of the Award to include a reference to the industry allowance which is payable under clause 20.6. It sought that the clause read as follows:

19.1 Adult rates

Employees are entitled to the minimum weekly wage prescribed for the classification in which they are employed, to which the industry allowance referred to in clause 20.6 is to be added, as follows:

Classification	Minimum weekly wage $	Minimum weekly wage including the industry allowance as per clause 20.6
Level 1	658.90	738.52
Level 2	675.60	755.22
Level 3	684.00	763.62
Level 4	696.60	776.22
Level 5	705.00	784.62
Level 6	723.80	803.42
Level 7	775.90	855.52
Level 8	814.80	894.42
Level 9	822.70	902.32

[13] During the conferences I chaired, the WCRA advised that it did not press for the addition of a column to the table in clause 19.1, however it continued to seek the insertion of the text underlined in the preamble. There was no objection raised to this proposal. I have decided to make this variation on the basis that it will make the Award easier to understand. It will alert a reader of clause 19.1 that there is an additional clause which needs to be taken into account when calculating an employee’s wages.

[14] A determination giving effect to this decision is also issued (PR545164).

SENIOR DEPUTY PRESIDENT