[2013] FWC 9543

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 first 2 years

Maggs, Dean
(AM2012/7)

WA Shearing Industry Association Inc
(AM2012/41)

Western Australian Farmers Federation Industrial Association
(AM2012/45)

The North Australian Pastoral Company Pty Ltd
(AM2012/112)

National Farmers’ Federation
(AM2012/174)

Agricultural industry
COMMISSIONER ROBERTS	SYDNEY, 12 DECEMBER 2013

Review of the Pastoral Award 2010.

[1] This decision concerns applications by Mr Dean Maggs, the National Farmers’ Federation (NFF), the North Australian Pastoral Company Pty Ltd (NAPCo), WA Shearing Industry Association Inc (WASIA) and Western Australian Farmers Federation Industrial Association (WAFFIA), to vary the Pastoral Award 2010 (the Pastoral Award). The applications are made under Schedule 5, Item 6 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the Transitional Act) as part of the review of all modern awards which Fair Work Australia (now the Fair Work Commission) is required to conduct after the first two years of those modern awards coming into effect (the 2012 Review).

[2] The applications were listed for mention and directions on 14 August 2012 and directions were subsequently issued on 15 August and later amended on 23 November for the filing of submissions and any witness statements. That process was to conclude on 15 February 2013. The applications then came on for hearing on 28 February and 1 March 2013. At the conclusion of the proceedings further directions were issued for the filing of final written submissions on some outstanding issues. That process concluded on or about 2 April 2013.

[3] At the proceedings Mr B Duggan appeared for the NFF, Mr P Houlihan for NAPCo and National Grocery Services, Mr P Brunner for WASIA and WAFFIA, Ms Z Angus for the Australian Workers’ Union (AWU), Mr J Letchford for the Shearing Contractors’ Association of Australia (SCAA) and Mr H Wallgren for Business SA. Mr D Maggs appeared on his own behalf.

[4] Written submissions were received from the Pastoralists and Graziers Association of WA (PGA) and two individuals, Mr T Boote and Mr D Featherstone. The PGA and the two individuals did not appear.

[5] Ms V Gates and Mr D Spencer gave sworn evidence for WASIA. Mr D Fraser gave sworn evidence for the NFF. Mr L O’Brien and Mr S Beechey gave sworn evidence for the AWU. Each witness submitted a witness statement and those statements were marked as Exhibits WASIA 3, WASIA 7, NFF 6, AWU 2 and AWU 3 respectively. A witness statement of Mr K Rice was also tendered by the NFF 1 but Mr Rice was not required for cross-examination.

The Legislation

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

“(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).”

[7] Provisions of the Fair Work Act 2009 (the Act) are also applicable and relevant to the 2012 Review. Sections 134 and 138 of the Act provide as follows:

“134 The modern awards objective

What is the modern awards objective?

(1) FWA 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.

138 Achieving the modern awards objective

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.”

[8] On 29 June 2012, the 2012 Review Full Bench published a decision in relation to the 2012 Review 2. The Full Bench said:

“[63] Under subitem 6(3) of Schedule 5, the Tribunal has a broad discretion to vary any of the modern awards in any way that it considers necessary to remedy any issues identified in the Review. However, subitem 6(4) provides that in making such a variation the Tribunal must take into account the modern awards objective in s.134 of the FW Act, and, if varying modern award and minimum wages, the minimum wages objective in s.284. “

[9] The Full Bench went on to say:

“[85] Two points about the historical context are particularly relevant. The first is that awards made as a result of the award modernisation process are now deemed to be modern awards for the purposes of the FW Act (see Item 4 of Schedule 5 of the Transitional Provisions Act). Implicit in this is a legislative acceptance that the terms of the existing modern awards are consistent with the modern awards objective. The second point to observe is that the considerations specified in the legislative test applied by the Tribunal in the Part 10A process is, in a number of important respects, identical or similar to the modern awards objective which now appears in s.136.”

......

[86] Although the Tribunal is not, as a non-judicial body, bound by principles of stare decisis, as a matter of policy and sound administration it has generally followed previous Full Bench decisions relating to the issue to be determined, in the absence of cogent reasons for not doing so. In another context three members of the High Court observed in Nguyen v Nguyen:

‘When a court of appeal holds itself free to depart from an earlier decision it should do so cautiously and only when compelled to the conclusion that the earlier decision is wrong. The occasions upon which the departure from previous authority is warranted are infrequent and exceptional and pose no real threat to the doctrine of precedent and the predictability of the law: see Queensland v The Commonwealth (1977) 139 CLR 585 per Aickin J at 620 et seq.’

[87] While the Tribunal is not a court, the public interest considerations underlying these observations have been applied with similar, if not equal, force to appeal proceedings in the Tribunal. In Re Dalrymple Bay Coal Terminal Pty Ltd a Full Bench summarised the position in relation to single members sitting at first instance as follows:

‘There is not a developed system of stare decisis in this jurisdiction. However it is clearly desirable for members of the Commission sitting alone to adhere to Full Bench decisions which are relevant to the matter being determined. Such a policy aids consistent decision making which in turn provides the parties to Commission proceedings with greater certainty.’

[88] These policy considerations tell strongly against the proposition that the Review constitutes a “fresh assessment” unencumbered by previous Tribunal authority.

[89] In circumstances where a party seeks a variation to a modern award in the Review and the substance of the variation sought has already been dealt with by the Tribunal in the Part 10A process, the applicant will have to show that there are cogent reasons for departing from the previous Full Bench decision, such as a significant change in circumstances, which warrant a different outcome.” [References omitted]

[10] The Full Bench said in relation to the application of section 138 of the Act to the 2012 Review:

“[33] We are satisfied that s.138 is relevant to the Review. The section deals with the content of modern awards and for the reasons given at paragraph [25] of our decision it is a factor to be considered in any variation to a modern award arising from the Review. We also accept that the observations of Tracey J in SDAEA 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.

[34] While s.138 is relevant to the Review there is still the question of the extent of its impact and the circumstances in which it will have on an application to a variation determination. The supplementary submissions revealed a diversity of views about these issues. We are not persuaded that these issues have been the subject of sufficient debate at this stage. The precise impact of s.138 is a question best considered in the context of a particular application. We agree with the RCAV’s supplementary submission that “the nature of the evidence and the facts as found arising from that evidence will condition the exercise of power and the ultimate outcome required to be determined by the review.”

[11] I now turn to consideration of each application.

Application by Maggs

[12] Mr Maggs’ application sought to increase the base rate for shearers to “$300 per 100 sheep shorn”. Mr Maggs’ application was supported by the AWU. Extensive material was filed by Mr Maggs and he was in attendance via video link from Tumut on 28 February 2013.

[13] On 9 April 2013 Mr Maggs sent an email to my chambers advising that he wished to withdraw his application. I made several further enquiries with Mr Maggs by telephone via my associate to ensure that he was aware of the effect of withdrawing his application. Mr Maggs informed me via my associate that he definitely wished to do so. Accoringly, for completeness, I dismiss Mr Maggs’ application. In any event, it would have been my view that Mr Maggs’ application fell outside the scope of this review.

Applications by WAFFIA and WASIA

[14] The WAFFIA and WASIA applications (as amended) are identical and both sought to vary the Award in the following manner:

“1. Delete clause A.9.5 in Schedule A - Transitional Provisions and insert in lieu thereof the following:

A.9.5 Clause A.9 ceases to operate on 31 December 2014.

Or, in the alternate:

2. Delete clause 48.1 in Part 7 - Shearing Operations and insert in lieu thereof the following:

48.1 The ordinary hours of work for Shearers and Crutchers will be 38 per week, Monday to Friday. The hours will not exceed eight per day and will be worked in two hour groupings called runs.

Delete clause 48.2(a) in Part 7 - Shearing Operations and insert in lieu thereof the following:

48.2(a) where agreement between the employer and the majority of employees exists there may be an alteration of the hours of work to allow for work to be completed in extenuating circumstances;

3. Add the following dot points to clause 48.2(d):

• extenuating circumstances; and



• inclement weather.”

[15] The applications to extend the transitional provisions have been considered by a Full Bench and were dismissed 3. In the circumstances, submissions by the parties and evidence regarding that part of the applications will not be considered in this decision.

[16] Currently clauses 48.1 and 48.2 of the Award read as follows:

“48.1 The ordinary hours of work for Shearers and Crutchers will be 38 per week, Monday to Friday. The hours will not exceed eight per day and will be worked in two hour groupings called runs. The run times are Monday to Friday as follows:

7.30 am–9.30 am

10.00 am–12.00 pm

1.00 pm–3.00 pm

3.30 pm–5.30 pm

48.2 This clause will be read subject to the provisions of clause 48.3 and the following:

(a) where agreement between the employer and the majority of employees exists there may be an alteration of the starting time by a maximum of two hours to allow for work to be completed in extenuating circumstances;

(b) work will not commence prior to 5.30 am or later than 7.30 am except where sheep have not been presented for shearing or crutching due to inclement weather;

(c) runs will be of two hours duration and be worked continuously except for tea and lunch breaks;

(d) circumstances for which alteration to the starting time in accordance with clause 48.2 may be made are limited to:

• to assist travel arrangements (e.g. day of cut out and travel home);



• to ensure daylight requirements where shed lighting is not available;



• for stock welfare; and



• when rising flood water creates exceptional circumstances; and

(e) the entitlements in this clause are non-cumulative.”

[17] In support of the applications, Ms V Gates (WASIA’s Executive Officer) and Mr D Spencer (WASIA’s President) gave sworn evidence and submitted witness statements 4. Those statements dealt with the transitional provisions question. Written submissions were also filed jointly on behalf of WASIA and WAFFIA5. I have considered those submissions insofar as they relate to clause 48 (Shearing Operations) of the Award. In their final submissions, WASIA and WAFFIA argued that “the intention is to simply remove the provisions within the Award that delineate the times when the runs are to commence and finish.” The submissions went on to argue that the variations sought are intended to remove an ambiguity or uncertainty in the Award which arises from a perceived conflict between subclauses 48.2(a) and (d). It was argued that the addition of the terms ‘extenuating circumstance’ and ‘inclement weather’ in (d) would remedy that conflict.

[18] WASIA and WAFFIA submitted that the variations sought reflect the performance and practice of operations within the shearing industry and are necessary to accommodate run patterns adopted by shearing contractors due to the impact of inclement weather, the safety and well-being of shed staff and the welfare of stock.

[19] The SCAA and the AWU opposed the variations. The SCAA did so in its primary 6 and final written submissions. It argued that the applications were “a step towards deregulating the industry’s hours of work.” The SCAA argued that increasing a worker’s flexibility to work weekends on an ‘arbitrary basis’ would not be beneficial for workers. The SCAA further contended that there is no evidence to support a reasonable need to include ‘inclement weather’ as a trigger to vary the ‘ordinary hours of work’.

[20] The SCAA also submitted that the Award already provides flexibility to work weekends when ‘inclemency’ occurs. The variation sought can only be seen as a tactic to “deregulate the Award and increase the opportunity for weekend and overtime work without the inclusion of penalty rates”.

[21] The AWU argued in its primary written submissions 7 and in its final written submissions that the applications should be rejected as they concern matters already dealt with in the Award Modernisation process: “In effect, the applicant does not like the outcome of the Award Modernisation process and is requesting that the Commission reconsider the matter of shearing hours of work or make a ‘fresh assessment’ of those hours. Undertaking such a ‘fresh assessment’ is inconsistent with principles outlined in the June 2012 Award Review decision.” Mr Beechey’s evidence, in part, dealt with the WASIA and WAFFIA applications. I have paid regard to that evidence which largely concerned the merits of the proposed variations to the Award. I have also paid regard to a brief submission made by Mr Boote and another made by Mr Featherstone.

[22] After a careful review of the evidence and submissions relating to the applications by WASIA and WAFFIA, I am led to the conclusion that the changes sought to clause 48 of the Award are not such as would cure any perceived uncertainty, ambiguity, anomaly or technical problems arising from the Part 10A award modernisation process and would make changes to the Award for which there is no necessity and which are beyond the scope of this mid-term review. The applications lack any persuasive evidence and they are both dismissed.

Application by NAPCo

[23] Clause 27 (Classifications) relevantly provides at subclause 27.1:

“27.1 Farm and livestock hand level 1 (FLH1)

An employee at this level includes:

(a) Station hand with less than 12 months’ experience in the industry;

(b) Station cook;

(c) Station cook’s offsider; and …”

[24] Subclause 27.2 relevantly provides:

“27.2 Farm and livestock hand level 2 (FLH2)

An employee at this level includes:

(a) Cattle farm worker grade B who:

…

Indicative of the tasks which an employee at this level may perform are the following:

• kitchen/cooking assistance not involving unsupervised food preparation;”

[25] The application (as amended) seeks to delete subclause 27.1(b) and to vary subclause 27.2(a) to delete the words “kitchen/cooking assistance not involving unsupervised food preparation” and inserting in lieu the words “Station Cook”.

[26] The application provided the following grounds in support:

“The existing classification structure aligns the Station Cook with the Station Cook’s Offsider (see sub-clause 27.1 (b) and (c) respectively) as FLH Level 1 employees. A Station Cook’s Offsider is a subordinate staff member, whose work is normally directed and supervised by a Station Cook. The applicants consider it anomalous that these two employees are classified and paid at the same level on a skills basis.

The existing structure includes indicative tasks at sub-clause 27.2(a) which are effectively the work of a Station Cook’s Offsider, that is, the words “kitchen/cooking assistance not involving unsupervised food preparation” are apt to describe the general and typical work of a Station Cook’s Offsider. The application does not seek to disturb the classification of an Offsider at FLH1 and does not seek the retention of work descriptors in FLH2 for what is an FLH1 position.”

[27] NAPCo’s application sought to correct an alleged anomaly in the award where a Station Cook and a Station Cook’s Offsider are placed under the same classification at level FLH1. NAPCo contended that a Station Cook’s Offsider is a subordinate staff member whose work is normally directed and supervised by a Station Cook.

[28] In final written submissions, NAPCo (per Mr Houlihan) argued that:

“Central to the issue is the alignment of the positions of Station Cook and Station Cook’s Offsider under the same Level, namely FLH1. While there may not be many modern awards that have an ‘offsider’ classification, no one with the slightest exposure to the Australian vernacular in the workplace would expect to find both the accomplished person and the offsider at the same pay level. Further, as a descriptor of tasks of an employee classified as FLH2, the modern award provides the following: ‘kitchen/cooking assistance not involving unsupervised food preparation’. The applicant submits these words are capable of describing the work of a Station Cook’s Offsider, an employee classified as FLH1. It therefore is consistent with the thrust of the application to remove those words from FLH2.”

[29] The submissions went on to say that the variations would result in an increased in wages for Station Cooks “paid strictly on the award of approximately $18 a week ...”.

[30] In final written submissions, NAPCo submitted that the current provisions relating to Cooks and Cooks’ Offsiders are, on their face, an error or anomaly. The submissions went on to answer the NFF’s opposition to the variations. In his oral submissions, Mr Houlihan said that the Cook and Cook’s Offsider classifications were not canvassed in the making of the modern award and were not the subject of any determination. 8

[31] In oral submissions supporting the NAPCo application, Ms Angus argued that the current award prescription was an oversight which needed to be rectified. 9

[32] Mr Duggan for the NFF, submitted that the NAPCo application “misapprehend[s] the scope and function of a review currently on foot and should be dismissed due to ... falling outside of this review process and be more appropriately framed under a Work Value Reasons case ...” 10 Mr Duggan further submitted that the role of Station Cook and Station Cook’s Offsider were always skills-based interchangeable roles, which were remunerated at the same level under the Pastoral Industry Award 1998 (the 1998 Award). Mr Duggan went on to submit that NAPCo had failed to outline actual problems or confusion in applying the classification as currently drafted and therefore the variations were not justified. However, the NFF agreed with that part of NAPCo’s application which would remove the words kitchen/cooking assistance not involving unsupervised food preparation” from FLH2 classification. Mr Duggan went on to say that this would resolve any anomaly and also preserve the modern award classification structure.

[33] The PGA, in its written submission, said that the proceedings before me “are restricted to considering anomalies which have arisen from the award modernisation process” [emphasis in original]. The submissions go on to argue that the Commission therefore does not have jurisdiction to determine the NAPCo application.

[34] “PGA submits that the proper process available to NAPCo is to seek a review of the award pursuant to section 157 of the FW Act which would enable the history of the classification structure to be examined, evidence to be called and a work value case to be conducted in order to justify any increase to the minimum wage for this classification. In the alternative, NAPCo has the option of applying under section 156 in the year 2014.”

[35] The PGA, in line with the NFF, did not oppose the removal of the indicative duties from the FLH2 classification.

[36] On the face of it, it certainly appears anomalous that the two classifications are both contained at FLH1. However, this ‘anomaly’ has carried over from the 1998 Award into the modern award made in 2010.

[37] In making my decision, I am not at large to cure such matters but am constrained by the provisions of the Transitional Act and Full Bench authority. Accordingly, I must take the same approach to this application as I did to those of WASIA and WAFFIA earlier in this decision. As with those applications, I am led to the conclusion that the changes sought are not such as would cure any anomaly or technical problem arising from the Part 10A award modernisation process. There is, in my view, no necessity to make the changes sought as they are beyond the scope of this mid-term review. The application is dismissed.

Application by the NFF

[38] The application sought to amend clauses 3.1, 17 and 46.3(b) of the Award.

[39] Clause 17 currently provides:

“17. Allowances

17.1 Adjustment of expense related allowances

(a) At the time of any adjustment to the standard rate, each expense related allowance will be increased by the relevant adjustment factor. The relevant adjustment factor for this purpose is the percentage movement in the applicable index figure most recently published by the Australian Bureau of Statistics since the allowance was last adjusted.

(b) The applicable index figure is the index figure published by the Australian Bureau of Statistics for the Eight Capitals Consumer Price Index (Cat No. 6401.0), as follows:

Allowance	Applicable Consumer Price Index figure
Allowance for combs/cutters	Tools and equipment for house and garden component of the household appliances, utensils and tools sub-group
Meal allowance	Take away and fast foods sub-group
Payment for handpiece	Tools and equipment for house and garden component of the household appliances, utensils and tools sub-group
Rations	Take away and fast foods sub-group
Shearing industry allowance	Eight capital cities weighted average
Special allowance (horse and saddle allowance)	Eight capital cities weighted average
Travelling allowance	Domestic holiday travel and accommodation sub-group
Vehicle allowance	Private motoring sub-group
With keep rate	Eight capital cities weighted average

17.2 Reimbursement of expenses

Where an employer authorises an employee to incur expenses in the course of the employee’s employment, the expense will be reimbursed by the employer upon provision by the employee of a tax invoice and receipt.

17.3 All-purpose allowances

The following allowances apply for all purposes of this award:

(a) Leading hands

A leading hand in charge of two or more people must be paid:

In charge of	% of the standard rate
2 to 6 employees	115% per week extra
7 to 10 employees	134% per week extra
11 to 20 employees	191% per week extra
More than 20 employees	240% per week extra

(b) First aid allowance

An employee designated by the employer to render first aid in addition to their usual duties and who is the current holder of a recognised first aid qualification, such as St John Ambulance or similar body, must be paid a daily allowance of 14% of the standard rate to carry out such work.

(c) Wet work allowance

(i) An employee who is required to work in a wet place must be provided with protective clothing and footwear by the employer. If the employee is not provided with such clothing and footwear the employer will reimburse the employee for the reasonable cost of providing such clothing and footwear.

(ii) Where the clothing and footwear is provided by the employer, it will remain the property of the employer.

(d) Tool and equipment allowance

(i) Where the employer requires an employee to supply their own tools and equipment, the employer must reimburse the employee for the cost of supplying such tools and equipment.

(ii) The provisions of this clause do not apply where the tools and equipment are paid for by the employer.

(e) Travelling allowance

(i) Where an employee is required to travel from one place to another, the time occupied in travelling will be counted as time worked, and paid for as such.

(ii) Where an employee is compelled by their duties to spend the night away from home or the property at which the employee is employed (whichever is the employee’s normal place of sleeping during employment) the employer will reimburse the employee for the demonstrable cost of suitable accommodation.

(iii) The provisions of this clause will not apply where the employer provides the employee with suitable accommodation free of charge.

(f) Use of vehicle allowance

Where an employer instructs an employee to use their own vehicle during working hours to relocate materials, equipment or personnel either within the normal work location or on public thoroughfares, the employee will be paid an allowance of $0.76 per kilometre.

(g) Meal allowance

(i) If an employee is required to work overtime after working ordinary hours (except where the period of overtime is less than one and a half hours) the employee will be paid $12.15 for the first and any subsequent meals. Alternatively the employer may supply the employee with a meal.

(ii) An employee required to work overtime for more than two hours after the employee’s ordinary ceasing time without having been notified before leaving work on the previous day that the employee will be required to work overtime, will be provided free of cost with a suitable meal, and if the work extends into a second meal break another meal, provided that in the event of the meal not being supplied the employee is entitled to a payment of $12.15 for each meal not supplied.

(h) Protective clothing

(i) Where the employer requires an employee to supply their own protective clothing, the employer must reimburse the employee for the cost of supplying such protective clothing.

(ii) The provisions of this clause do not apply where the protective clothing is paid for by the employer.

(iii) Any protective clothing which is paid for by the employer remains the property of the employer.

(i) Charges for accommodation, meat, goods and services

(i) Where the employer provides an employee with living premises for the use of a ‘without keep’ employee and the employee’s household, the employer may make a charge of an amount agreed between them in writing for the use of the premises and/or power supplied to such premises.

(ii) The employer may charge to an employee:

• the cost of goods or services supplied to the employee at the employee’s request and paid for by the employer; and

• the cost of goods purchased by the employer for the employee at the employee’s request.

(iii) Where the employer supplies an employee with meat, the employer may charge the employee an amount mutually agreed upon.

(iv) Where the employer sells groceries or stores to the employee the prices charged must not exceed cost price with carriage added.”

[40] The NFF sought to vary clause 17 of the Award to read as follows:

“17. Allowances

17.1 Adjustment of expense-related allowances

(a) At the time of any adjustment to the standard rate, each expense-related allowance will be increased by the relevant adjustment factor. The relevant adjustment factor for this purpose is the percentage movement in the applicable index figure most recently published by the Australian Bureau of Statistics since the allowance was last adjusted.

(b) The applicable index figure is the index figure published by the Australian Bureau of Statistics for the Eight Capitals Consumer Price Index (Cat No. 6401.0), as follows.

Allowance	Applicable Consumer Price Index figure
Allowance for combs/cutters	Tools component of the household appliances, utensils, and tools sub-group
Meal allowance	Take away and fast food sub-group
Payment for handpiece	Tools component of the household appliances, utensils, and tools sub-group
Rations	Take away and fast food sub-group
Shearing industry allowance	Eight capital cities weighted average
Special allowance (horse and saddle allowance)	Eight capital cities weighted average
Travelling allowance	Domestic holiday travel and accommodation subgroup
Vehicle allowance	Private motoring sub-group
With keep rate	Eight capital cities weighted average

17.2 Expense-related allowances

(a) Tool and equipment allowance

(i) Where the employer requires employees to supply their own tools and equipment, the employer must reimburse the employees for the cost of supplying such tools and equipment.

(ii) The provisions of this clause do not apply where the tools and equipment are paid for by the employer.

(b) Use of vehicle allowance

Where an employer instructs employees to use their own vehicle during working hours to relocate materials, equipment, or personnel either within the normal work location or on public thoroughfares, the employees will be paid an allowance of 75 cents per kilometre.

(c) Meal allowance

(i) If an employee is required to work overtime after working ordinary hours (except where the period of overtime is fewer than one and a half hours), the employee will be paid $11.77 for the first and any subsequent meals. Alternatively, the employer may supply the employee with a meal.

(ii) An employee required to work overtime for more than two hours after the employee's ordinary ceasing time without having been notified before leaving work on the previous day that the employee will be required to work overtime, will be provided free of cost with a suitable meal, and if the work extends into a second meal break, another meal, provided that in the event of the meal not being supplied the employee is entitled to a payment of $11.77 for each meal not supplied.

17.3 Reimbursement of expenses

Where an employer authorises an employee to incur expenses in the course of the employee's employment, the expense will be reimbursed by the employer upon provision by the employee of a tax invoice and receipt.

17.4 All-purpose allowances

The following allowances apply for all purposes of this award.

(a) Leading hands

A leading hand in charge of two or more people must be paid as follows.

In charge of	% of the standard rate
2–6 employees	115% per week extra
7–10 employees	134% per week extra
11–20 employees	191% per week extra
More than 20 employees	240% per week extra

(b) First aid allowance

An employee designated by the employer to render first aid in addition to his or her usual duties and who is the current holder of a recognised first aid qualification, such as one from St John Ambulance or a similar body, must be paid a daily allowance of 14% of the standard rate to carry out such work.

(c) Travelling allowance

(i) Where an employee is required to travel from one place to another during the course of work, the time occupied in travelling will be counted as time worked and paid for as such.

(ii) Time spent by an employee travelling from the employee’s home to the job and return will not be regarded as time worked.

(iii) Where employees are compelled by their duties to spend the night away from home or the property at which the employees are employed (whichever is each employee's normal place of sleeping during employment), the employer will reimburse the employees for the demonstrable cost of suitable accommodation.

(iv) The provisions of this clause will not apply where the employer provides the employee with suitable accommodation free of charge.

17.5 Protective clothing

(a) Wet weather clothing and footwear

(i) An employee who is required to work in a wet place must be provided with protective clothing and footwear by the employer. If the employee is not provided with such clothing and footwear, the employer will reimburse the employee for the reasonable cost of providing such clothing and footwear.

(ii) Where the clothing and footwear is provided and paid for by the employer, it will remain the property of the employer.

(iii) ‘wet place’ is defined in clause 3.1 of this award

(b) Protective clothing

(i) Where the employer requires an employee to supply his or her own protective clothing, the employer must reimburse the employee for the reasonable cost of supplying such protective clothing.

(ii) The provisions of this clause do not apply where the protective clothing is paid for by the employer.

(iii) Any protective clothing that is paid for by the employer remains the property of the employer

17A Charges for accommodation, meat, goods, and services

(i) Where the employer provides an employee with living premises for the use of a “without keep” employee and the employee’s household, the employer may make a charge of an amount agreed between them in writing for the use of the premises and/or power supplied to such premises.

(ii) The employer may charge to an employee:

• the cost of goods or services supplied to the employee at the employee’s request and paid for by the employer; and

• the cost of goods purchased by the employer for the employee at the Employee’s request.

(iii) Where the employer supplies an employee with meat, the employer may charge the employee an amount mutually agreed upon.

(iv) Where the employer sells groceries or stores to the employee, the prices charged must not exceed the cost price with carriage added.”

[41] During proceedings on 1 March 2013, the parties advised me that they had settled their differences concerning clause 17 and had reached the following agreed position 11:

“17. Allowances

17.1 Adjustment of expense-related allowances

(a) At the time of any adjustment to the standard rate, each expense-related allowance will be increased by the relevant adjustment factor. The relevant adjustment factor for this purpose is the percentage movement in the applicable index figure most recently published by the Australian Bureau of Statistics since the allowance was last adjusted.

(b) The applicable index figure is the index figure published by the Australian Bureau of Statistics for the Eight Capitals Consumer Price Index (Cat No. 6401.0), as follows.

Allowance	Applicable Consumer Price Index figure
Allowance for combs/cutters	Tools component of the household appliances, utensils, and tools sub-group
Meal allowance	Take away and fast food sub-group
Payment for handpiece	Tools component of the household appliances, utensils, and tools sub-group
Rations	Take away and fast food sub-group
Shearing industry allowance	Eight capital cities weighted average
Special allowance (horse and saddle allowance)	Eight capital cities weighted average
Travelling allowance	Domestic holiday travel and accommodation subgroup
Vehicle allowance	Private motoring sub-group
With keep rate	Eight capital cities weighted average

17.2 Expense-related allowances

(a) Tool and equipment allowance

(i) Where the employer requires employees to supply their own tools and equipment, the employer must reimburse the employees for the cost of supplying such tools and equipment.

(ii) The provisions of this clause do not apply where the tools and equipment are paid for by the employer.

(b) Use of vehicle allowance

Where an employer instructs employees to use their own vehicle during working hours to relocate materials, equipment, or personnel either within the normal work location or on public thoroughfares, the employees will be paid an allowance of 76 cents per kilometre.

(c) Meal allowance

(i) If an employee is required to work overtime after working ordinary hours (except where the period of overtime is fewer than one and a half hours), the employee will be paid $12.15 for the first and any subsequent meals. Alternatively, the employer may supply the employee with a meal.

(ii) An employee required to work overtime for more than two hours after the employee's ordinary ceasing time without having been notified before leaving work on the previous day that the employee will be required to work overtime, will be provided free of cost with a suitable meal, and if the work extends into a second meal break, another meal, provided that in the event of the meal not being supplied the employee is entitled to a payment of $12.15 for each meal not supplied.

17.3 Reimbursement of expenses

Where an employer authorises an employee to incur expenses in the course of the employee's employment, the expense will be reimbursed by the employer upon provision by the employee of a tax invoice and receipt.

17.4 All-purpose allowances

The following allowances apply for all purposes of this award.

(a) Leading hands

A leading hand in charge of two or more people must be paid as follows.

In charge of	% of the standard rate
2–6 employees	115% per week extra
7–10 employees	134% per week extra
11–20 employees	191% per week extra
More than 20 employees	240% per week extra

(b) First aid allowance

An employee designated by the employer to render first aid in addition to his or her usual duties and who is the current holder of a recognised first aid qualification, such as one from St John Ambulance or a similar body, must be paid a daily allowance of 14% of the standard rate to carry out such work.

(c) Travelling allowance

(i) Where an employee is required to travel from one place to another for the purpose of work, the time occupied in travelling will be counted as time worked and paid for as such.

(ii) Time spent by an employee travelling from the employee’s home to the principal place of employment and return will not be regarded as time worked.

(iii) Where an employee is compelled by their duties to spend the night away from home or the property at which the employee is employed (whichever is the employee’s normal place of sleeping during employment), the employer will reimburse the employee for the demonstrable cost of suitable accommodation.

(iv) The provisions of this clause will not apply where the employer provides the employee with suitable accommodation free of charge.

17.5 Protective clothing

(a) Wet weather clothing and footwear

(i) An employee who is required to work in a wet place must be provided with protective clothing and footwear by the employer. If the employee is not provided with such clothing and footwear, the employer will reimburse the employee for the reasonable cost of providing such clothing and footwear.

(ii) Where the clothing and footwear is provided and paid for by the employer, it will remain the property of the employer.

(iii) ‘wet place’ is defined in clause 3.1 of this award

(b) Protective clothing

(i) Where the employer requires an employee to supply his or her own protective clothing, the employer must reimburse the employee for the cost of supplying such protective clothing.

(ii) The provisions of this clause do not apply where the protective clothing is paid for by the employer.

(iii) Any protective clothing that is paid for by the employer remains the property of the employer

17A Charges for accommodation, meat, goods, and services

(i) Where the employer provides an employee with living premises for the use of a “without keep” employee and the employee’s household, the employer may make a charge of an amount agreed between them in writing for the use of the premises and/or power supplied to such premises.

(ii) The employer may charge to an employee:

• the cost of goods or services supplied to the employee at the employee’s request and paid for by the employer; and

• the cost of goods purchased by the employer for the employee at the Employee’s request.

(iii) Where the employer supplies an employee with meat, the employer may charge the employee an amount mutually agreed upon.

(iv) Where the employer sells groceries or stores to the employee, the prices charged must not exceed the cost price with carriage added.”

[42] The parties also agreed to insert the following new definition into clause 3.1 of the Award:

“A wet place will mean a place where the clothing of the employee becomes wet or a place where the employee has to stand in water or slush so that the employee’s footwear becomes saturated.”

[43] Having examined the proposed consent variations to clauses 3 and 17 of the Award as submitted by the parties, and having the benefit of being appraised of the discussions between the parties, I am satisfied that the variations to clauses 3 and 17 as agreed between the parties are consistent with the modern award objective and I will issue a determination in the terms sought, except to amend the monetary amounts in clauses 17.2(b), (c)(i) and (c)(ii) to reflect the variation to the Award made with effect from the first pay period commencing on or after 1 July 2013 12.

[44] The remaining matter to be decided is the NFF’s application to vary clause 46.3(b). Clause 46.3(b) currently provides:

“(b) Vehicle allowance—all employees

Where an employee, by prior arrangement and agreement with an employer, uses the employee’s own motor vehicle to travel to and from the shed the employee will be paid a vehicle allowance of $0.76 per kilometre for travel by the most direct practicable route between the shed and the employee’s normal place of residence.”

[45] The NFF’s application seeks to vary clause 46.3(b) to reduce the allowance to 49 cents per kilometre.

[46] In a submission accompanying the application, the NFF argued that the award modernisation objects have not been achieved and that the “NFF does not believe that the modern Pastoral Award could objectively be described as an instrument that is promoting ‘flexible modern work practices and the efficient and productive performance of work’.” The submission went on to argue that “the award modernisation process must be carried out in a way that does not increase costs for employers.”

[47] The NFF application was supported by Business SA and opposed by the AWU and the SCAA.

[48] The NFF filed extensive material and brought evidence from Mr D Fraser and Mr K Rice in support of its application. I have paid regard to that evidence and to the submissions of the NFF and the other parties, including evidence from the AWU.

[49] During proceedings, Mr Duggan said that the Pastoral Industry Award 1998 provided for a vehicle allowance of 32 cents per kilometre. “As a direct result of the award modernisation the vehicle allowance increased to 74 cents. That allowance has subsequently increased on 1 July 2012 to 75 cents.” 13 I note here that the allowance increased to 76 cents per kilometre from 1 July 2013.

[50] The NFF’s written and oral submissions included a very detailed analysis of the history of vehicle allowance in the Pastoral Industry together with its views on the nature and scope of this mid-term review in the context of the making of the modern award in 2010. It argued that the justification for varying the vehicle allowance is that such a variation is justified to ensure that the award operates without technical problems or anomalies. In this regard, the NFF maintained that the modern award does not promote flexible modern work practices and the efficient and productive performance of work. It went on to submit “that the Commission has failed to complete the award modernisation process relating the agriculture industry in accordance with Part 10A of the Workplace Relations Act. NFF submits that the decision to impose complexity and increase costs is not a decision made in accordance with the jurisdiction conferred upon the Commission ... and is not a decision authorised by that part of the Act.”

[51] The NFF further argued through its submissions and witnesses that the modern award has imposed an economic burden on employers in regard to the vehicle allowance and that this mid-term review should effectively reverse the decision of the Full Bench. It provided extensive argument and analysis that the vehicle allowance rate is in excess of that required to provide a genuine reimbursement to employees.

[52] “In approaching the claim we submit due consideration shall be paid to whether the Pastoral Award 2010 achieves the modern award objective. Further, consideration shall be directed to whether the Pastoral Award 2010 is operating effectively, without anomalies or technical problems arising from the Part 10A award modernisation process. It is submitted that a significant oversight on behalf of the Full Bench in 2008 can be argued to have occurred on the presented facts. If this proposition is accepted, we then suggest past antecedence holds strong persuasive value and establishes cogent reasons for departing from the Full Bench decision in 2008, which established the Pastoral Award 2010.”

[53] “It is submitted for a single Commissioner to conclude that a previous Full Bench decision was clearly wrong, a strong conviction that the earlier decision was erroneous and the nature of the error can be demonstrated with a degree of clarity if the correct legal analysis is required. It is contended that this has been clearly demonstrated in these proceedings. We further contend the statutory framework anticipates this very situation and hence it is open to reestablishing the intertwined working of the shearing industry allowance and the vehicle allowance during this Transitional Review.”

[54] “In relation to the impact on employees, we contend that the vehicle allowance is a reimbursement allowance, which is partially catered for in the shearing industry allowance and will not have adverse consequences nor disadvantage employees, their families and the wider community.”

[55] I have omitted the NFF’s analysis of relevant Commission decisions going back to 1974 in any detail but in bare summary the NFF submitted that the Full Bench erred in 2008 in relation to vehicle allowance when making the modern award and that I should go back to what was allegedly past practice by the Commission and depart from the Full Bench approach in favour of that proposed by the NFF.

[56] As noted above, the application was opposed by the SCAA and the AWU. In its final written submissions, the SCAA said: “A seven member Full Bench specifically dealt with the matter of the appropriate rate for vehicle allowances in the Award Modernisation Process. The NFF’s submission is a ‘change of mind’ rather than a correction to an anomaly that the Full Bench failed to see. It would be unjustified for a single member of the Commission to depart from this determination.”

[57] In its final written submissions, the AWU argued in similar terms to the SCAA that: “The NFF is effectively asking a single member of the Commission for a ‘fresh assessment’ of a matter considered and determined by the Full Bench. The NFF did not made any submissions to the Full Bench during award modernisation on the issue of reimbursement of vehicle costs.”

[58] The AWU went on to say: “Now the NFF asks the Commission to depart from that Full Bench decision to standardize the vehicle allowance and impose a different standard in the pastoral industry. Essentially, the applicant requests that a single Commission member step into the shoes of the Full Bench and reconsider that Full Bench determination that vehicle allowances be standardized across all awards. They do so on the on the basis of a fresh argument advanced some three years later.”

[59] “1n essence, the NFF is asking a single member of the Commission to take a fresh look at the appropriate quantum of the vehicle allowance in one modern award and depart from the express decision of the Full Bench. This approach of making a ‘fresh assessment’ of a matter determined by the Full Bench runs contrary to the purpose of the modern award review. Again, the Modern Awards Review 2012 decision of 29 June 2012 makes this clear:

• it is clearly desirable for members of the Commission sitting alone to adhere to Full Bench decisions which are relevant to the matter being determined.



• policy considerations tell strongly against the proposition that the Review constitutes a ‘fresh assessment’ unencumbered by previous Tribunal authority.



• The fact that the Review of a modern award may be conducted by a single member also suggests that the legislature contemplated that the Review would be more confined in scope that the 4 yearly reviews in s.156.”

[60] I find myself in full agreement with the arguments set out above from the SCAA and the AWU. It is certainly not my intention to make any decision which would be in clear conflict with the Full Bench. The application by the NFF is not one that can be entertained by this mid-term review. The application is dismissed.

Other award variations

[61] At the conclusion of proceedings on 1 March 2013, I raised with the parties a number of matters which had been identified by the Commission’s Modern Awards Team and provided the parties with a document setting out the matters, for their comment. The AWU and the NFF responded in some detail, agreeing with some proposed variations and opposing others. The items which met with a common positive response from both the AWU and the NFF were:

Clause 3.1 (Definitions and interpretation)

[62] It is proposed to vary part of the definition of ‘continuous service’ in clause 3.1. The relevant part of that definition currently reads as follows:

“continuous service is not broken when an employee:

• takes up to 152 ordinary working hours because of sickness or accident in a 12 month period (i.e. paid sick leave and workers compensation leave); ...”

[63] It was proposed by the Commission’s Modern Awards Team that the above definition be reworded to read:

“continuous service is not broken when an employee:

• takes up to 152 ordinary working hours leave because of sickness or accident in 12 month period (i.e. paid sick leave or workers compensation leave); ...”

[64] The AWU agreed with the above proposal as did the NFF. The NFF added a suggestion that the word ‘paid’ be added before the word ‘leave’.

[65] I am satisfied that the variation agreed to by the AWU and the additional variation suggested by the NFF should be approved on the ground of providing great clarity in the Award. A determination will therefore issue that the following be inserted at clause 3.1 of the Award in lieu of that currently appearing:

“continuous service is not broken when an employee:

• takes up to 152 ordinary working hours paid leave because of sickness or accident in 12 month period (i.e. paid sick leave or workers compensation leave); ...”

[66] It was further proposed that the definition of ‘wine industry’ in clause 3.1 be replaced with the definition contained in the Wine Industry Award 2010, as the Pastoral Award definition is inconsistent with that contained in the Wine Industry award. I agree with the proposal on the ground that consistency should be maintained between modern awards wherever possible and a determination will issue that the following definition of ‘wine industry’ will replace that currently appearing in the Award:

“wine industry means the industry of growing and processing wine grapes and includes:

(a) the preparation of land for the planting of wine grape vines, the planting of wine grape vines, the pruning of wine grape vines, the care, growing, treating, picking, harvesting and forwarding of wine grapes and other activities associated with a wine grape vineyard; and/or

(b) processing wine grapes, producing wine juice or grape spirit, the bottling, packaging, storage or dispatch of wine, brandy or other potable spirit, liqueurs, vinegar or grape juice and other activities associated with a winery or wine distillery including but not limited to cellar door sales, laboratory activities and making or repairing barrels, vats, casks and like articles; and/or

(c) packaging, storing and dispatching of wine or grape spirit from a warehouse facility or other place of storage associated with a winery or wine distillery.”

Clause 35 (Ordinary hours of work and rostering) in Part 5 - Pig Breeding and Raising

[67] Clause 35.1 currently provides as follows:

“35.1 Ordinary hours for Piggery attendants will not exceed 152 in any month. If an employee works less than 38 hours in one week of any month then the employer will use its best endeavours to ensure that the employee is paid for 38 hours work during any such week. Unless otherwise agreed by an employer and an affected employee the spread of ordinary hours will not exceed eight per day between 6.00 am and 6.00 pm Monday to Friday. No employee will be required to work more than 12 ordinary hours per day.”

[68] The parties agreed that the words “in any month” should be deleted and the words “in any four week period” inserted in lieu thereof. The proposed variation would provide consistency with other modern award “Hours” clauses. Accordingly, a determination to vary the clause in the terms sought will be issued.

Clause 41 (Ordinary hours of work and rostering) in Part 6 - Poultry Farming

[69] Clause 41.2 of the Award currently provides:

“41.2 The rate of pay for overtime will be time and a half, provided that double time will be paid for all work performed on Sunday except in the case of feeding or watering the stock when such work will be paid for at the rate of time and a half.”

[70] The clause deals with overtime payments. Clearly, it does not appear in the correct section of the Award and should be moved to become part of clause 42 (Overtime). I agreed with the proposal and a determination will issue to that effect. This change is necessary to provide clarity.

Clause 45.2 (Rates for crutching)

[71] Clause 45.2(d) currently provides:

“(d) For crutching stud ewes and their lambs—one and a quarter of the rates prescribed in clause 45.1(a) to (f)”

[72] The cross reference to “clause 45.1(a) to (f)” is a clear error and the reference should be “clause 45.2(a)”. A determination will issue correcting the error.

Clause 45.8 (Woolclassers and Shearing shed experts)

[73] Subclauses 45.8(a)(i), (ii) and (iii) contain the words “is derived according to the following formula ...” It is proposed that the word “derived” should be deleted in each case and the words “arrived at” should be inserted in lieu thereof to provide consistency with the wording in other clauses of the Award. This is desirable for clarity and a determination will issue in the terms sought.

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