[2014] FWCFB 1788
The attached document replaces the document previously issued with the above code on 17 March 2014.
The citation for Nguyen v Nguyen at endnote 15 is corrected to (1990) 169 CLR 245 at 269 and P Stuckey-Clarke for the Australian Federation of Employers and Industry has been added to the list of appearances.
David Mitchell
Associate to Justice Ross
Dated: 26 March 2014.
[2014] FWCFB 1788 |
FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.156 - 4 yearly review of modern awards
JUSTICE ROSS, PRESIDENT |
MELBOURNE, 17 MARCH 2014 |
4 Yearly Review of Modern Awards: Preliminary Jurisdictional Issues.
Background
[1] Section 156 of the Fair Work Act 2009 (Cth) (the FW Act) provides that the Fair Work Commission (the Commission) must conduct a 4 yearly review of modern awards (a Review) starting as soon as practicable after each 4th anniversary of the commencement of Part 2-3 of the FW Act. Part 2-3 commenced on 1 January 2010 1 and so the first Review is to start as soon as practicable after 1 January 2014. For convenience we refer to this review as ‘the Review’. In relation to the timeframe for the Review, we note that the wording of s.156 (1) differs to the requirements relating to the transitional review of modern awards contained in subitem 6(1) of Schedule 5 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the Transitional Act). The Transitional Act says that “as soon as practicable . . . FWA must conduct a review of modern awards” (emphasis added), whereas s.156(1) requires the Commission to start conducting the Review as soon as practicable. We agree with the submissions of the Australian Industry Group (Ai Group) that we have already met the requirements of s.156(1) in commencing the Review and that there is no requirement for the Commission to complete the Review with undue haste which could lead to unfairness and injustice.2
[2] A draft statement was published on 15 November 2013 providing a preliminary outline of the process for the Review. A further statement was issued on 24 December 2013 providing information about a conference that was to take place on 5 February 2014.
[3] The purpose of the 5 February conference was to commence the initial stage of the review. On 24 January 2014 an issues paper was made available on the website to assist in the facilitation of the conference. The issues paper also set out a number of draft propositions related to jurisdictional issues and called for submissions from interested parties on these propositions. At the 5 February conference the Commission outlined a process for the resolution of the jurisdictional issues canvassed in the issues paper. A transcript of the proceedings is available on the Review page of the Commission’s website. A number of parties indicated that they wished to make further submissions on the draft propositions and preliminary jurisdictional issues canvassed in the issues paper. In Directions issued on 6 February 2014, parties were invited to make any further submissions on the draft propositions and preliminary jurisdictional issues by 20 February 2014 and submissions in reply by 27 February 2014. The Commission received 47 submissions in response to the Issues Paper and 6 submissions in reply. A hearing took place on 6 March 2014. Prior to this hearing the Commission published a background paper which provided an overview of the parties’ submissions in response to the draft propositions.
[4] This decision deals with our findings regarding some of the preliminary jurisdictional issues related to the Review. It is unnecessary to attempt to summarise the parties’ submissions as this has already been done in the background paper.
The Review
[5] The FW Act provides that the Commission must conduct a 4 yearly review of modern awards (s.156(1)). Sub-section 156(2) deals with what has to be done in a Review:
“(2) In a 4 yearly review of modern awards, the FWC:
(a) must review all modern awards; and
(b) may make:
(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.”
[6] The Fair Work Amendment Act 2012 (the 2012 Amendment Act) amended s.156 by inserting s.156(2)(c). Note 2 at the end of s.156(2)(c) refers to a review in relation to default fund terms of modern awards. The 2012 Amendment Act also inserted a new division into the Act (Division 4A) dealing with 4 yearly reviews of default fund terms of modern awards. This review is separate to, and is outside the scope of, the 4 yearly review of modern awards. A separate Full Bench has been constituted to deal with the review required by Division 4A of the FW Act.
[7] Sub-sections 156(3) and (4) deal with the variation of modern award minimum wages in a Review:
“(3) In a 4 yearly review of modern awards, the FWC may make a determination varying modern award minimum wages only if the FWC is satisfied that the variation of modern award minimum wages is justified by work value reasons.
(4) Work value reasons are reasons justifying the amount that employees should be paid for doing a particular kind of work, being reasons related to any of the following:
(a) the nature of the work;
(b) the level of skill or responsibility involved in doing the work;
(c) the conditions under which the work is done.”
[8] Sub-section 156(5) provides that in a Review each modern award is reviewed in its own right, however, this does not prevent the Commission from reviewing 2 or more modern awards at the same time.
[9] The Commission must be constituted by a Full Bench to conduct a Review and to make determinations and modern awards in a Review (see ss.616(1), (2) and (3) of the FW Act). Section 582 of the FW Act provides that the President may give directions about the conduct of a Review.
[10] In addition to s.156 a range of other provisions in the FW Act are relevant to the Review: s.3 (objects of the Act); s.55 (interaction with the National Employment Standards (NES)); Part 2-2 (the NES); s.134 (the modern awards objective); s.135 (special provisions relating to modern award minimum wages); Divisions 3 (terms of modern awards) and 6 (general provisions relating to modern award powers) of Part 2-3; s.284 (the minimum wages objective); s.577 (performance of functions and exercise of powers of the Commission); s.578 (matters the Commission must take into account in performing functions and exercising powers); and Division 3 of Part 5-1 (conduct of matters before the Commission).
[11] The general provisions relating to the performance of the Commission’s functions apply to the Review. Sections 577 and 578 are particularly relevant in this regard. Section 577 states:
“FWC must perform its functions and exercise its powers in a manner that:
(a) is fair and just; and
(b) is quick, informal and avoids unnecessary technicalities; and
(c) is open and transparent; and
(d) promotes harmonious and cooperative workplace relations.
Note: The President also is responsible for ensuring that FWC performs its functions and exercises its powers efficiently etc. (see section 581).”
[12] Section 578 states:
“In performing functions or exercising powers, in relation to a matter, under a part of this Act (including this Part), FWC must take into account:
(a) the objects of this Act, and any objects of the part of this Act; and
(b) equity, good conscience and the merits of the matter; and
(c) the need to respect and value the diversity of the work force by helping to prevent and eliminate discrimination on the basis of race, colour, sex, sexual preference, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.”
[13] In conducting the Review the Commission is also able to exercise its usual procedural powers, contained in Division 3 of Part 5-1 of the FW Act. Importantly, the Commission may inform itself in relation to the Review in such manner as it considers appropriate (s.590).
[14] As we have mentioned, s.156 sets out the requirement to conduct 4 yearly reviews of modern awards and what may be done in such reviews. Ascertaining the meaning of s.156 necessarily begins with the ordinary and grammatical meaning of the words used. 3 These words must be read in context by reference to the language of the Act as a whole and to the legislative purpose.4 Section 578(a) of the FW Act also directs attention to the objects of the FW Act and s.15AA of the Acts Interpretation Act 1901 requires that a construction that would promote the purpose or object of the FW Act is to be preferred to one that would not promote that purpose or object. The purpose or object of the FW Act is to be taken into account even if the meaning of a provision is clear. When the purpose or object is brought into account an alternative interpretation may become apparent. If one interpretation does not promote the object or purpose of the FW Act, and another does, the latter interpretation is to be preferred. Of course, s.15AA requires us to construe the FW Act, not to rewrite it, in the light of its purpose.5
[15] The discretion in s.156(2), to make determinations varying modern awards and to make or revoke modern awards in a Review, is expressed in general terms. But, as we have mentioned, context is important. As Mason J affirmed in K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd 6:
“Problems of legal interpretation are not solved satisfactorily by ritual incantations which emphasise the clarity of meaning which words have when viewed in isolation, divorced from their context. The modern approach to interpretation insists that the context be considered in the first instance, especially in the case of general words, and not merely at some later stage when ambiguity might be thought to arise.” 7
[16] The apparent scope of a discretion such as that in s.156(2) may be limited by other sections of the FW Act. The provisions of an act must be read together such that they fit with one another. This may require a provision to be read more narrowly than it would if it stood on its own. 8
[17] A number of provisions in the FW Act that are relevant to the Review operate to constrain the breadth of the discretion in s.156(2). It is important to observe at the outset that in exercising its powers in a Review the Commission is exercising ‘modern award powers’ (see s.134(2)(a)). This characterisation of a Review has important implications for the matters which the Commission must take into account in exercising its discretion in s.156(2) and for any determination arising from a Review.
[18] We now turn to consider the scope of the Review before turning to particular provisions dealing with modern awards which are relevant to the Review.
The Scope and Nature of the Review
[19] The Review is broader in scope than the Transitional Review of modern awards completed in 2013 (the Transitional Review). The legislative context for the Transitional Review was principally set out in Item 6 of Schedule 5 to the 9 the Transitional Act. A preliminary decision issued in June 2012 as part of the Transitional Review set out the scope and legislative context of that review. 9 The Full Bench explained how the Transitional Review would differ from the 4 yearly review of modern awards as follows:
“[91] It is important to recognise that we are dealing with a system in transition. Item 6 of Schedule 5 forms part of transitional legislation which is intended to facilitate the movement from the WR Act to the FW Act. The [Transitional] Review is a “one off” process required by the transitional provisions and is being conducted a relatively short time after the completion of the award modernisation process. The transitional arrangements in modern awards continue to operate until 1 July 2014. The fact that the transition to modern awards is still occurring militates against the adoption of broad changes to modern awards as part of the [Transitional] Review. Such changes are more appropriately dealt with in the 4 year review, after the transition process has completed. In this context it is particularly relevant to note that s.134(1)(g) of the modern awards objective requires the Tribunal to take into account:
“the need to ensure a simple, easy to understand, stable and sustainable modern award system for Australia . . .”
[99] To summarise, we reject the proposition that the [Transitional] Review involves a fresh assessment of modern awards unencumbered by previous Tribunal authority. It seems to us that the [Transitional] Review is intended to be narrower in scope than the 4 yearly reviews provided in s.156 of the FW Act. In the context of this [Transitional] Review the Tribunal is unlikely to revisit issues considered as part of the Part 10A award modernisation process unless there are cogent reasons for doing so, such as a significant change in circumstances which warrants a different outcome . . .” 10
[20] In their submission dated 20 February 2014, Ai Group submitted that even though the Review is broader in scope than the Transitional Review:
“. . . where a party seeks a variation to a modern award in the 4 Yearly Review and the substance of the variation sought has already been dealt with in the Part 10A Process or in the Modern Awards Review 2012, the applicant should be required to show that there are cogent reasons for departing from the previous decision.” 11
[21] Both the Australian Chamber of Commerce and Industry (ACCI) and Australian Business Industrial (ABI) challenged Ai Group’s submission, submitting that the FW Act does not provide any legislative basis for the adoption of a test such as that proposed by Ai Group. ACCI advanced the following submission in respect of the ‘cogent reasons’ requirement advanced by Ai Group:
“The modern awards objective requires the Commission to have regard to, amongst other matters, the need to ensure ‘a simple, easy to understand, stable and sustainable award system’ (s.134(1)(g)). This consideration suggests that evidence upon which the Commission acts should be cogent and probative in the sense that it should be logical and compelling and properly directed to the demonstration of the facts supporting the proposed variation.” 12
[22] ABI generally accepted that submissions in support of award variations should be founded on merit based arguments that address the relevant legislative provisions, but contended that the procedure adopted by the Commission should reflect the nature of the issues involved. In some cases this approach may require a formal hearing with the presentation of evidence sufficient to move the Commission to exercise its discretion to vary a modern award. This is likely to be the case where a major change is sought to be made to a modern award and the proposal is contested. In other cases a formal hearing or evidence may not be necessary. Two examples were given of circumstances where a formal hearing or evidence would not be necessary:
(i) An award variation may be self-evidently necessary. The most obvious example of such circumstances arises where typographical errors or other anomalies appear in awards. During the Transitional Review, the Commission regularly accepted the notion that self-evident anomalies within awards could, of themselves, provide a basis for the making of variations. 13
(ii) There may be a high level of consensus from well informed industrial ‘parties’ which, when combined with logical and persuasive submissions, justifies the variation of an award. This consensus, together with appropriate submissions addressing the legislative framework could itself form a sufficiently persuasive basis for the Commission to exercise its discretion to vary an award. In this regard, ABI referred to the decision of Senior Deputy President Harrison in Modern Awards Review 2012 - Road Transport and Distribution Award 2010 [2013] FWC 9805 in that case, 16 variations were made to the Road Transport and Distribution Award 2010, the majority of which were not the subject of any evidence filed in the proceedings.
[23] The Commission is obliged to ensure that modern awards, together with the NES, provide a fair and relevant minimum safety net taking into account, among other things, the need to ensure a ‘stable’ modern award system (s.134(1)(g)). The need for a ‘stable’ modern award system suggests that a party seeking to vary a modern award in the context of the Review must advance a merit argument in support of the proposed variation. The extent of such an argument will depend on the circumstances. We agree with ABI’s submission that some proposed changes may be self evident and can be determined with little formality. However, where a significant change is proposed it must be supported by a submission which addresses the relevant legislative provisions and be accompanied by probative evidence properly directed to demonstrating the facts supporting the proposed variation.
[24] In conducting the Review the Commission will also have regard to the historical context applicable to each modern award. Awards made as a result of the award modernisation process conducted by the former Australian Industrial Relations Commission (the AIRC) under Part 10A of the Workplace Relations Act 1996 (Cth) were deemed to be modern awards for the purposes of the FW Act (see Item 4 of Schedule 5 of the Transitional Act). Implicit in this is a legislative acceptance that at the time they were made the modern awards now being reviewed were consistent with the modern awards objective. The considerations specified in the legislative test applied by the AIRC in the Part 10A process is, in a number of important respects, identical or similar to the modern awards objective in s.134 of the FW Act. 14 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 that it was made.
[25] Although the Commission is not bound by principles of stare decisis it has generally followed previous Full Bench decisions. 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 occasion 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.” 15
[26] While the Commission 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 Commission. 16 As a Full Bench of the Australian Industrial Relations Commission observed in Cetin v Ripon Pty Ltd (T/as Parkview Hotel) (Cetin)17:
“Although the Commission 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.” 18
[27] These policy considerations tell strongly against the proposition that the Review should proceed in isolation unencumbered by previous Commission decisions. In conducting the Review it is appropriate that the Commission take into account previous decisions relevant to any contested issue. The particular context in which those decisions were made will also need to be considered. Previous Full Bench decisions should generally be followed, in the absence of cogent reasons for not doing so.
The Modern Awards Objective
[28] The modern awards objective is set out in s.134 of the FW Act. It states:
“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.
When does the modern awards objective apply?
(2) The modern awards objective applies to the performance or exercise of the FWC’s modern award powers, which are:
(a) the FWC’s functions or powers under this Part; and
(b) the FWC’s functions or powers under Part 2-6, so far as they relate to modern award minimum wages.
Note: The FWC must also take into account the objects of this Act and any other applicable provisions. For example, if the FWC is setting, varying or revoking modern award minimum wages, the minimum wages objective also applies (see section 284).”
[29] The modern awards objective 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 FW Act. As we have mentioned the Review function in s.156 is in Part 2-3 of the FW 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.
[30] Section 134(1)(da) was inserted into the FW Act by the Fair Work Amendment Act 2013 and commenced on 1 January 2014. It is apparent from the submissions before us that the proper construction of s.134(1)(da) is a contentious issue and it is appropriate that this issue not be determined at this stage, but rather be addressed in the context of considering a specific proposal to vary a particular provision in a modern award.
[31] 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) (the s.134 considerations). The objective is very broadly expressed. 19 The obligation to take into account the matters set out in paragraphs 134(1)(a) to (h) means that each of these matters must be treated as a matter of significance in the decision making process.20 As Wilcox J said in Nestle Australia Ltd v Federal Commissioner of Taxation:
“To take a matter into account means to evaluate it and give it due weight, having regard to all other relevant factors. A matter is not taken into account by being noticed and erroneously discarded as irrelevant.” 21
[32] No particular primacy is attached to any of the s.134 considerations and not all of the matters identified will necessarily be relevant in the context of a particular proposal to vary a modern award.
[33] There is a degree of tension between some of the s.134(1) considerations. The Commission’s task is to balance the various s.134(1) considerations and ensure that modern awards provide a fair and relevant minimum safety net of terms and conditions. The need to balance the competing considerations in s.134(1) and the diversity in the characteristics of the employers and employees covered by different modern awards means that the application of the modern awards objective may result in different outcomes between different modern awards.
[34] Given the broadly expressed nature of the modern awards objective and the range of considerations which the Commission must take into account there may be no one set of provisions in a particular award which can be said to provide a fair and relevant safety net of terms and conditions. Different combinations or permutations of provisions may meet the modern awards objective.
[35] Section 138 of the FW 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.”
[36] We deal later with the terms which may or must be included in a modern award. Relevantly, s.138 provides that such terms only be included in a modern award ‘to the extent necessary to achieve the modern awards objective’. To comply with s.138 the formulation of terms which must be included in modern award or terms which are permitted to be included in modern awards must be in terms ‘necessary to achieve the modern awards objective’. What is ‘necessary’ in a particular case is a value judgment based on an assessment of the considerations in s.134(1)(a) to (h), having regard to the submissions and evidence directed to those considerations. In the Review the proponent of a variation to a modern award must demonstrate that if the modern award is varied in the manner proposed then it would only include terms to the extent necessary to achieve the modern awards objective.
[37] Section 157 deals with making, varying or revoking a modern award ‘outside the system of 4 yearly reviews’. Given the scope of s.157 it is not directly relevant to the Review, but the use of the word ‘necessary’ in both s.138 and s.157(1) is instructive. Sub-section 157(1) is in the following terms:
“157 FWC may vary etc. modern awards if necessary to achieve modern awards objective
(1) The FWC may:
(a) make a determination varying a modern award, otherwise than to vary modern award minimum wages or to vary a default fund term of the award; or
(b) make a modern award; or
(c) make a determination revoking a modern award;
if the FWC is satisfied that making the determination or modern award outside the system of 4 yearly reviews of modern awards is necessary to achieve the modern awards objective.
Note 1: The FWC must be constituted by a Full Bench to make a modern award (see subsection 616(1)).
Note 2: Special criteria apply to changing coverage of modern awards or revoking modern awards (see sections 163 and 164).
Note 3: If the FWC is setting modern award minimum wages, the minimum wages objective also applies (see section 284). . . .” (emphasis added)
[38] Under s.157(1) the Commission must be satisfied that ‘a determination varying a modern award ... is necessary to achieve the modern awards objective’ (emphasis added). In Shop, Distributive and Allied Employees Association v National Retail Association (No 2) (SDA v NRA (No 2)) 22 Tracey J considered the proper construction of s.157(1). His Honour held:
“The statutory foundation for the exercise of FWA’s power to vary modern awards is to be found in s 157(1) of the Act. The power is discretionary in nature. Its exercise is conditioned upon FWA being satisfied that the variation is “necessary” in order “to achieve the modern awards objective”. That objective is very broadly expressed: FWA must “provide a fair and relevant minimum safety net of terms and conditions” which govern employment in various industries. In determining appropriate terms and conditions regard must be had to matters such as the promotion of social inclusion through increased workforce participation and the need to promote flexible working practices.
The subsection also introduced a temporal requirement. FWA must be satisfied that it is necessary to vary the award at a time falling between the prescribed periodic reviews.
The question under this ground then becomes whether there was material before the Vice President upon which he could reasonably be satisfied that a variation to the Award was necessary, at the time at which it was made, in order to achieve the statutory objective . . .
In reaching my conclusion on this ground I have not overlooked the SDA’s subsidiary contention that a distinction must be drawn between that which is necessary and that which is desirable. That which is necessary must be done. That which is desirable does not carry the same imperative for action. Whilst this distinction may be accepted it must also be acknowledged that reasonable minds may differ as to whether particular action is necessary or merely desirable. It was open to the Vice President to form the opinion that a variation was necessary.” 23
[39] We are satisfied that s.138 is relevant to the Review. We also accept that the observations of Tracey J in SDA v NRA (No.2), as to the distinction between that which is “necessary” and that which is merely desirable, albeit in a different context, are apposite to any consideration of s.138.
Terms of Modern Awards
[40] Any variation of a modern award arising from the Review must comply with the requirements of the FW Act which relate to the content of modern awards. Division 3 of Part 2-3 deals with the terms of modern awards, in particular terms that may or must be included in modern awards, and terms that must not be included in modern awards. This division also deals with the interaction between the NES and modern awards. These provisions are relevant to the Review. Any variation to a modern award arising from the Review must comply with s.136 of the FW Act and the related provisions which deal with the content of modern awards (ss.136–155 of the FW Act). Section 136 sets out what can and cannot be included in a modern award:
“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).”
[41] Subdivision B sets out the terms which may be included in a modern award. Section 139 is the principal provision, it states:
“139 Terms that may be included in modern awards—general
(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;
(b) type of employment, such as full-time employment, casual employment, regular part-time employment and shift work, and the facilitation of flexible working arrangements, particularly for employees with family responsibilities;
(c) arrangements for when work is performed, including hours of work, rostering, notice periods, rest breaks and variations to working hours;
(d) overtime rates;
(e) penalty rates, including for any of the following:
(i) employees working unsocial, irregular or unpredictable hours;
(ii) employees working on weekends or public holidays;
(iii) shift workers;
(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;
(h) leave, leave loadings and arrangements for taking leave;
(i) superannuation;
(j) procedures for consultation, representation and dispute settlement.
(2) Any allowance included in a modern award must be separately and clearly identified in the award.”
[42] In addition to the matters set out in s.139 a modern award may also include outworker terms (s.140); industry specific redundancy schemes (s.141); and incidental and machinery terms (s.142).
[43] Subdivision C sets out the terms that must be included in a modern award, that is:
● Coverage terms (ss 143-143A);
[44] Subdivision D (ss.150-155) deals with terms that must not be included in modern awards, for example objectionable or discriminatory terms (see ss.150 and 153); or terms about right of entry or dealing with long service leave (see ss.152 and 155). An ‘objectionable term’ is defined in s.12 to mean a term that:
“(a) requires, has the effect of requiring, or purports to require or have the effect of requiring; or
(b) permits, has the effect of permitting, or purports to permit or have the effect of permitting: either of the following:
(c) a contravention of Part 3-1 (which deals with general protections);
(d) the payment of a bargaining services fee.”
[45] The FW Act does not define the word ‘discriminate’ or the expression ‘discriminate against’. The ordinary and natural meaning of the word ‘discriminate’ connotes the making of distinctions. 24 In the context of s.153(1) ‘discriminate’ involves the making of distinctions between employees whose employment is regulated by a modern award. Not all discrimination is proscribed. There are certain exclusions in subsections 153(2) and (3) and further, what is proscribed is discrimination against an employee25 (see generally SDA v NRA (No 2) (2012) 205 FCR 227 at 238-240).
[46] Further, subject to some limited exceptions a modern award must not include terms that contain state-based differences. Section 154 provides:
“154 Terms that contain State-based differences
General rule—State-based difference terms must not be included
(1) A modern award must not include terms and conditions of employment (State-based difference terms) that:
(a) are determined by reference to State or Territory boundaries; or
(b) are expressed to operate in one or more, but not every, State and Territory.
When State-based difference terms may be included
(2) However, a modern award may include State-based difference terms if the terms were included in the award:
(a) in the award modernisation process; or
(b) in accordance with subsection (3);
but only for up to 5 years starting on the day on which the first modern award that included those terms came into operation.
(3) If:
(a) a modern award includes State-based difference terms as permitted under subsection (2); and
(b) the FWC is making or varying another modern award so that it (rather than the modern award referred to in paragraph (a)) will cover some or all of the classes of employees who are covered by those terms;
the FWC may include those terms in that other modern award. However, the FWC must not extend the coverage of those terms to classes of employees that they did not previously cover.”
[47] Depending on the terms of a variation arising from the Review, certain other provisions of the FW Act may be relevant. For example, Division 3 of Part 2-1 of the FW Act deals with, among other things, the interaction between the NES and modern awards. These provisions will be relevant to any Review application which seeks to alter the relationship between a modern award and the NES. In particular s.55(4) provides that a modern award may include the following kinds of terms:
“(a) terms that are ancillary or incidental to the operation of an entitlement of an employee under the National Employment Standards;
(b) terms that supplement the National Employment Standards;
but only to the extent that the effect of those terms is not detrimental to an employee in any respect, when compared to the National Employment Standards.” (emphasis added)
[48] The Review will also need to consider whether any existing term of a modern award is detrimental to an employee in any respect, when compared to the NES.
Exercising Modern Award Powers Outside the 4 Yearly Review and Annual Wage Review
[49] Division 5 of Part 2-3 (ss.157-161) of the FW Act deals with the exercise of powers outside 4 yearly reviews and annual wage reviews. These provisions are not relevant to the conduct of the Review but the Review process is not of itself a barrier to an application or determination being made under Division 5, provided the Commission is satisfied that the requirements of Division 5 have been met.
[50] We have already referred to s.157 for the purpose of construing s.138. Section 158 deals with who may apply for the making of a determination varying or revoking a modern award, or for the making of a modern award, under s.157.
[51] Section 159 deals with the variation of a modern award to update or omit the name of an employer, an organisation or an outworker entity. Section 160 provides that the Commission may vary a modern award to “remove an ambiguity or uncertainty or to correct an error”. These provisions continue to be available during the Review, either on application or on the Commission’s own initiative.
[52] In the event that the Review identifies an ambiguity or uncertainty or an error, or there is a need to update or omit the name of an entity mentioned in a modern award the Commission may exercise its powers under ss.159 or 160, on its own initiative. Of course interested parties will be provided with an opportunity to comment on any such proposed variation.
Division 6 of Part 2-3 of the FW Act
[53] The Review is a function or power under Part 2-3 and, by virtue of s.134(2)(a), it involves the exercise of modern award powers. Division 6 contains specific provisions relevant to the exercise of modern award powers, so much is clear from s.162 which states ‘This Division contains some specific provisions relevant to the exercise of modern award powers’. Further, the note appearing under s.156(2) makes reference to ss.163 and 164 (which are contained in Division 6). The note states: ‘special criteria apply to changing coverage of modern awards or revoking modern awards (see sections 163 and 164)’.
[54] If the Commission were to make a modern award or change the coverage of an existing modern award in the Review, then the requirements set out in section 163 must be satisfied, as follows:
“163 Special criteria relating to changing coverage of modern awards
Special rule about reducing coverage
(1) The FWC must not make a determination varying a modern award so that certain employers or employees stop being covered by the award unless the FWC is satisfied that they will instead become covered by another modern award (other than the miscellaneous modern award) that is appropriate for them.
Special rule about making a modern award
(2) The FWC must not make a modern award covering certain employers or employees unless the FWC has considered whether it should, instead, make a determination varying an existing modern award to cover them.
Special rule about covering organisations
(3) The FWC must not make a modern award, or make a determination varying a modern award, so that an organisation becomes covered by the award, unless the organisation is entitled to represent the industrial interests of one or more employers or employees who are or will be covered by the award.
The miscellaneous modern award
(4) The miscellaneous modern award is the modern award that is expressed to cover employees who are not covered by any other modern award.”
[55] Section 164 deals with the revocation of modern awards:
“164 Special criteria for revoking modern awards
The FWC must not make a determination revoking a modern award unless the FWC is satisfied that:
(a) the award is obsolete or no longer capable of operating; or
(b) all the employees covered by the award are covered by a different modern award (other than the miscellaneous modern award) that is appropriate for them, or will be so covered when the revocation comes into operation.”
[56] Section 165 and 166 apply to variation determinations arising from the Review:
“165 When variation determinations come into operation, other than determinations setting, varying or revoking modern award minimum wages
Determinations come into operation on specified day
(1) A determination under this Part that varies a modern award (other than a determination that sets, varies or revokes modern award minimum wages) comes into operation on the day specified in the determination.
Note 1: For when a modern award, or a revocation of a modern award, comes into operation, see section 49.
Note: For when a determination under this Part setting, varying or revoking modern award minimum wages comes into operation, see section 166.
(2) The specified day must not be earlier than the day on which the determination is made, unless:
(a) the determination is made under section 160 (which deals with variation to remove ambiguities or correct errors); and
(b) the FWC is satisfied that there are exceptional circumstances that justify specifying an earlier day.
Determinations take effect from first full pay period
(3) The determination does not take effect in relation to a particular employee until the start of the employee’s first full pay period that starts on or after the day the determination comes into operation.
[57] The effect of s.165 is clear. A variation to a modern award comes into operation on the day specified in the determination (the ‘specified day’). The default position is that the ‘specified day’ must not be earlier than the day on which the variation determination is made. In other words determinations varying modern awards generally operate prospectively and in relation to a particular employee the determination takes effect from the employee’s first full pay period on or after the ‘specified day’. Section 165(2) provides an exception to the general position that variations operate prospectively. It is apparent from the use of the conjunctive ‘and’ in s.165(2) that a variation can only operate retrospectively if the variation is made under s.160 (which deals with variations to remove ambiguities or uncertainties, or to correct errors) and there are exceptional circumstances that justify retrospectivity.
[58] Section 166 deals with the operative date of variation determinations which vary modern award minimum wages. It states:
“166 When variation determinations setting, varying or revoking modern award minimum wages come into operation
Determinations generally come into operation on 1 July
(1) A determination under this Part that sets, varies or revokes modern award minimum wages comes into operation:
(a) on 1 July in the next financial year after it is made; or
(b) if it is made on 1 July in a financial year—on that day.
Note: Modern award minimum wages can also be set, varied or revoked by determinations made in annual wage reviews. For when those determinations come into operation, see section 286.
FWC may specify another day of operation if appropriate
(2) However, if the FWC specifies another day in the determination as the day on which it comes into operation, the determination comes into operation on that other day. The FWC must not specify another day unless it is satisfied that it is appropriate to do so.
(3) The specified day must not be earlier than the day on which the determination is made, unless:
(a) the determination is made under section 160 (which deals with variation to remove ambiguities or correct errors); and
(b) the FWC is satisfied that there are exceptional circumstances that justify specifying an earlier day.
Determinations may take effect in stages
(4) The FWC may specify in the determination that changes to modern award minimum wages made by the determination take effect in stages if the FWC is satisfied that it is appropriate to do so.
Determinations take effect from first full pay period
(5) A change to modern award minimum wages made by the determination does not take effect in relation to a particular employee until the start of the employee’s first full pay period that starts on or after:
(a) unless paragraph (b) applies—the day the determination comes into operation; or
(b) if the determination takes effect in stages under subsection (4)—the day the change to modern award minimum wages is specified to take effect.”
[59] If a modern award is made or revoked arising out of the Review then s.49 of the FW Act is relevant, it states:
“49 When a modern award is in operation
When a modern award comes into operation
(1) A modern award comes into operation:
(a) on 1 July in the next financial year after it is made; or
(b) if it is made on 1 July in a financial year—on that day.
(2) However, if the FWC specifies another day as the day on which the modern award comes into operation, it comes into operation on that other day. The FWC must not specify another day unless it is satisfied that it is appropriate to do so.
(3) The specified day must not be earlier than the day on which the modern award is made.
Note: For when a State reference public sector modern award comes into operation, see section 168J.
When a determination revoking a modern award comes into operation
(4) A determination revoking a modern award comes into operation on the day specified in the determination.
(5) The specified day must not be earlier than the day on which the determination is made.
Modern awards and revocation determinations take effect from first full pay period
(6) A modern award, or a determination revoking a modern award, does not take effect in relation to a particular employee until the start of the employee’s first full pay period that starts on or after the day the award or determination comes into operation.
Modern awards operate until revoked
(7) A modern award continues in operation until it is revoked.”
Summary
[60] On the basis of the foregoing we would make the following general observations about the Review:
1. Section 156 sets out the requirement to conduct 4 yearly reviews of modern awards and what may be done in such reviews. The discretion in s.156(2) to make determinations varying modern awards and to make or revoke modern awards in a Review, is expressed in general terms. The scope of the discretion in s.156(2) is limited by other provisions of the FW Act.
In exercising its powers in a Review the Commission is exercising ‘modern award powers’ (s.134(2)(a)) and this has important implications for the matters which the Commission must take into account and for any determination arising from a Review. In particular, the modern awards objective in s.134 applies to the Review.
2. The Commission must be constituted by a Full Bench to conduct a Review and to make determinations and modern awards in a Review. Section 582 provides that the President may give directions about the conduct of a Review. The general provisions relating to the performance of the Commission’s functions apply to the Review. Sections 577 and 578 are particularly relevant in this regard. In conducting the Review the Commission is able to exercise its usual procedural powers, contained in Division 3 of Part 5-1 of the FW Act. Importantly, the Commission may inform itself in relation to the Review in such manner as it considers appropriate (s.590).
3. The Review is broader in scope than the Transitional Review of modern awards completed in 2013. The Commission is obliged to ensure that modern awards, together with the NES, provide a fair and relevant minimum safety net taking into account, among other things, the need to ensure a ‘stable’ modern award system (s.134(1)(g)). The need for a ‘stable’ modern award system suggests that a party seeking to vary a modern award in the context of the Review must advance a merit argument in support of the proposed variation. The extent of such an argument will depend on the circumstances. Some proposed changes may be self evident and can be determined with little formality. However, where a significant change is proposed it must be supported by a submission which addresses the relevant legislative provisions and be accompanied by probative evidence properly directed to demonstrating the facts supporting the proposed variation. In conducting the Review the Commission will also have regard to the historical context applicable to each modern award and will take into account previous decisions relevant to any contested issue. The particular context in which those decisions were made will also need to be considered. Previous Full Bench decisions should generally be followed, in the absence of cogent reasons for not doing so. The Commission will proceed on the basis that prima facie the modern award being reviewed achieved the modern awards objective at the time that it was made.
4. The modern awards objective applies to the Review. The objective is very broadly expressed and is directed at ensuring that modern awards, together with the NES, provide a ‘fair and relevant minimum safety net of terms and conditions’.
5. In the Review the proponent of a variation to a modern award must demonstrate that if the modern award is varied in the manner proposed then it would only include terms to the extent necessary to achieve the modern awards objective (see s.138). What is ‘necessary’ in a particular case is a value judgment based on an assessment of the considerations in s.134(1)(a) to (h), having regard to the submissions and evidence directed to those considerations.
6. There may be no one set of provisions in a particular modern award which can be said to provide a fair and relevant minimum safety net of terms and conditions. There may be a number of permutations of a particular modern award, each of which may be said to achieve the modern awards objective.
7. The characteristics of the employees and employers covered by modern awards varies between modern awards. To some extent the determination of a fair and relevant minimum safety net will be influenced by these contextual considerations. It follows that the application of the modern awards objective may result in different outcomes between different modern awards.
8. Any variation to a modern award arising from the Review must comply with s.136 of the FW Act and the related provisions which deal with the content of modern awards. Depending on the terms of a variation arising from the Review, certain other provisions of the FW Act may be relevant. For example, Division 3 of Part 2-1 of the FW Act deals with, among other things, the interaction between the National Employment Standards (NES) and modern awards. These provisions will be relevant to any Review application which seeks to alter the relationship between a modern award and the NES. The Review will also consider whether any existing term of a modern award is detrimental to an employee in any respect, when compared to the NES (see s.55(4)).
9. Division 5 of Part 2-3 (ss.157-161) of the FW Act deals with the exercise of powers outside 4 yearly reviews and annual wage reviews. These provisions are not relevant to the conduct of the Review but the Review process is not of itself a barrier to an application or determination being made under Division 5, provided the Commission is satisfied that the requirements of Division 5 have been met. In the event that the Review identifies an ambiguity or uncertainty or an error, or there is a need to update or omit the name of an entity mentioned in a modern award the Commission may exercise its powers under ss.159 or 160, on its own initiative. Interested parties will be provided with an opportunity to comment on any such proposed variation.
10. Division 6 of Part 2-3 contains specific provisions relevant to the exercise of modern award powers. These provisions apply to the Review. If the Commission were to make a modern award or change the coverage of an existing modern award in the Review, then the requirements set out in s.163 must be satisfied.
Determinations varying modern awards arising from the Review will generally operate prospectively and in relation to a particular employee the determination will take effect from the employee’s first full pay period on or after the ‘specified day’. Section 165(2) provides an exception to the general position that variations operate prospectively. A variation can only operate retrospectively if the variation is made under s.160 (which deals with variations to remove ambiguities or uncertainties, or to correct errors) and there are exceptional circumstances that justify retrospectivity.
Section 166 deals with the operative date of variation and determinations which vary modern award minimum wages and it also applies to the Review.
The Next Step
[61] The Statement issued on 15 November 2013 provided an outline of the process for the Review. The Review is comprised of an initial stage, dealing with issues associated with the legislative framework, followed by an award stage. This decision marks the completion of the initial stage of the Review.
[62] In the award stage the 122 modern awards will be reviewed in four sequential stages. The list of awards assigned to each group has been published and the only remaining issue in contention is whether the Pharmacy Industry Award 2010 is to be moved from stage 2 to stage 4. We have considered the submissions filed in relation to this issue and we are not persuaded to change the allocation of this award, it will remain in stage 2. We confirm that the allocations are a matter of convenience and do not represent any conclusions about their terms relative to other awards in the group. Further, issues relating to the Pharmacy Industry Award 2010, including some raised by employers in that industry, may be dealt with as part of the later stages where appropriate. A final list of the awards allocated to each stage is set out at Attachment A.
[63] The Commission will release a draft document setting out how it proposes to conduct the award stage of the Review in the week commencing 14 April 2014. Interested parties will be given an opportunity to comment on this document before it is finalised. A conference in relation to the awards to be reviewed in stage 1 will be held on Tuesday 13 May 2014. Directions will be issued in due course.
PRESIDENT
Appearances:
T Clarke, J Dolan, and E McCoy for the Australian Council of Trade Unions.
A Bukarica and S Maxwell for the Construction, Forestry, Mining and Energy Union.
S Smith and B Ferguson for the Australian Industry Group.
D Grozier for the Australian Chamber of Commerce and Industry.
H Lepahe for Australian Business Industrial.
P Murdoch from the National Farmers Federation.
J Sweetman and T. E Evans for the Australian Hotels Association
C Cameron for the Recruiting and Consulting Services Association.
D Szrait for Master Grocers Australia.
W Chesterman for the Victorian Automobile Chamber of Commerce also appearing on behalf of the Motor Traders Association.
N Tindley, STB Group on behalf of the Australian Retailers Association.
S Elliffe for the National Retail Association.
K McGosh for the National Electrical Contractors Association.
M Nguyen for the Australian Manufacturing Workers’ Union.
M Butler for the Association of Professional Engineers, Scientists and Managers, Australia.
S Burnley for the Shop, Distributive and Allied Employees Association.
V Wiles for the Textile, Clothing and Footwear Union of Australia.
L Svendsen for the Health Services Union.
M Rizzo for the Australian Municipal, Administrative, Clerical and Services Union.
M Adler for the Housing Industry Association.
T Angelopoulos for the Horticulture Task Force.
A Mancini for the Australian Mines and Metals Association.
A Morris for the Coal Mining Industry Employer Group.
J Dennis for the Fair Work Ombudsman.
G Parkes for Restaurant and Caterering Australia.
S Crawford for the Australian Workers Union.
T McAuley for the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia.
N Swancott and C Aced for United Voice.
J Ghmrjestani for the Transport Workers’ Union of Australia.
G Johnston for the Australian Meat Industry Council.
D Neuze for the Australian Veterinary Association.
C McIlroy for the Local Government Associations of New South Wales and the State and Territory Local Government Associations.
C Delaney of the Australian Security Industry Association Limited.
J Shingles and E Larkin for the Australian Childcare Association and Australian Childcare Alliance.
S Stubbens for the Chamber of Commerce and Industry Queensland.
J O'Dwyer for Australian Master Electricians.
R Patterson for the Master Plumbers Association Queensland.
L Fraser and P Tyquin for the Traffic Management Association of Australia.
M Roddam and A Green for the Commonwealth.
K Mark and M Whelan for the Pharmacy Guild of Australia.
R Calver for Master Builders Australia.
S Hills for the South Australian Wine Industry Association.
P Stuckey-Clarke for the Australian Federation of Employers and Industry
Hearing details:
2014.
Melbourne: (with video links to Sydney, Adelaide, Canberra and Brisbane)
6, March.
ATTACHMENT A
Grouping of modern awards
Group 1 (30 awards)
Award code |
Award title |
Aluminium Industry Award 2010 | |
Ambulance and Patient Transport Industry Award 2010 | |
Asphalt Industry Award 2010 | |
Black Coal Mining Industry Award 2010 | |
Cement and Lime Award 2010 | |
Cleaning Services Award 2010 | |
Concrete Products Award 2010 | |
Cotton Ginning Award 2010 | |
Gas Industry Award 2010 | |
Hydrocarbons Industry (Upstream) Award 2010 | |
Manufacturing and Associated Industries and Occupations Award 2010 | |
Marine Tourism and Charter Vessels Award 2010 | |
Maritime Offshore Oil and Gas Award 2010 | |
Meat Industry Award 2010 | |
Mining Industry Award 2010 | |
Oil Refining and Manufacturing Award 2010 | |
Pharmaceutical Industry Award 2010 | |
Poultry Processing Award 2010 | |
Premixed Concrete Award 2010 | |
Professional Diving Industry (Industrial) Award 2010 | |
Professional Diving Industry (Recreational) Award 2010 | |
Quarrying Award 2010 | |
Rail Industry Award 2010 | |
Salt Industry Award 2010 | |
Security Services Industry Award 2010 | |
Stevedoring Industry Award 2010 | |
Textile, Clothing, Footwear and Associated Industries Award 2010 | |
Timber Industry Award 2010 | |
Vehicle Manufacturing, Repair, Services and Retail Award 2010 | |
Wool Storage, Sampling and Testing Award 2010 |
Group 2 (19 awards)
Award code |
Award title |
Alpine Resorts Award 2010 | |
Animal Care and Veterinary Services Award 2010 | |
Aquaculture Industry Award 2010 | |
Corrections and Detention (Private Sector) Award 2010 | |
Fire Fighting Industry Award 2010 | |
Graphic Arts Award 2010 | |
Health Professionals and Support Services Award 2010 | |
Horse and Greyhound Training Award 2010 | |
Medical Practitioners Award 2010 | |
Nurses Award 2010 | |
Passenger Vehicle Transportation Award 2010 | |
Pharmacy Industry Award 2010 | |
Racing Industry Ground Maintenance Award 2010 | |
Road Transport (Long Distance Operations) Award 2010 | |
Road Transport and Distribution Award 2010 | |
Seafood Processing Award 2010 | |
Storage Services and Wholesale Award 2010 | |
Transport (Cash in Transit) Award 2010 | |
Waste Management Award 2010 |
Group 3 (33 awards)
Award code |
Award title |
Banking, Finance and Insurance Award 2010 | |
Business Equipment Award 2010 | |
Clerks–Private Sector Award 2010 | |
Coal Export Terminals Award 2010 | |
Commercial Sales Award 2010 | |
Contract Call Centres Award 2010 | |
Dredging Industry Award 2010 | |
Educational Services (Post-Secondary Education) Award 2010 | |
Educational Services (Schools) General Staff Award 2010 | |
Electrical Power Industry Award 2010 | |
Fitness Industry Award 2010 | |
Gardening and Landscaping Services Award 2010 | |
Higher Education–Academic Staff–Award 2010 | |
Higher Education–General Staff–Award 2010 | |
Horticulture Award 2010 | |
Labour Market Assistance Industry Award 2010 | |
Legal Services Award 2010 | |
Local Government Industry Award 2010 | |
Marine Towage Award 2010 | |
Market and Social Research Award 2010 | |
Miscellaneous Award 2010 | |
Nursery Award 2010 | |
Pastoral Award 2010 | |
Port Authorities Award 2010 | |
Ports, Harbours and Enclosed Water Vessels Award 2010 | |
Real Estate Industry Award 2010 | |
Seagoing Industry Award 2010 | |
Silviculture Award 2010 | |
Sporting Organisations Award 2010 | |
State Government Agencies Administration Award 2010 | |
Sugar Industry Award 2010 | |
Telecommunications Services Award 2010 | |
Wine Industry Award 2010 |
Group 4 (40 awards)
Award code |
Award title |
Aboriginal Community Controlled Health Services Award 2010 | |
Aged Care Award 2010 | |
Air Pilots Award 2010 | |
Aircraft Cabin Crew Award 2010 | |
Airline Operations—Ground Staff Award 2010 | |
Airport Employees Award 2010 | |
Amusement, Events and Recreation Award 2010 | |
Architects Award 2010 | |
Book Industry Award 2010 | |
Broadcasting and Recorded Entertainment Award 2010 | |
Building and Construction General On-site Award 2010 | |
Car Parking Award 2010 | |
Cemetery Industry Award 2010 | |
Children’s Services Award 2010 | |
Dry Cleaning and Laundry Industry Award 2010 | |
Electrical, Electronic and Communications Contracting Award 2010 | |
Educational Services (Teachers) Award 2010 | |
Fast Food Industry Award 2010 | |
Food, Beverage and Tobacco Manufacturing Award 2010 | |
Funeral Industry Award 2010 | |
General Retail Industry Award 2010 | |
Hair and Beauty Industry Award 2010 | |
Hospitality Industry (General) Award 2010 | |
Hydrocarbons Field Geologists Award 2010 | |
Joinery and Building Trades Award 2010 | |
Journalists Published Media Award 2010 | |
Live Performance Award 2010 | |
Mannequins and Models Award 2010 | |
Mobile Crane Hiring Award 2010 | |
Pest Control Industry Award 2010 | |
Plumbing and Fire Sprinklers Award 2010 | |
Professional Employees Award 2010 | |
Racing Clubs Events Award 2010 | |
Registered and Licensed Clubs Award 2010 | |
Restaurant Industry Award 2010 | |
Social, Community, Home Care and Disability Services Industry Award 2010 | |
Supported Employment Services Award 2010 | |
Surveying Award 2010 | |
Travelling Shows Award 2010 | |
Water Industry Award 2010 |
1 Section 2 of the Fair Work Act 2009.
2 Ai Group submission, 20 February 2014 at paragraphs 3.1 and 3.2.
3 Australian Education Union v Department of Education and Children’s Services (2012) 285 ALR 27 at [26].
4 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [69].
5 Mills v Meeking (1990) 169 CLR 214 at 235 per Dawson J; R v L (1994) 49 FCR 534 at 538.
6 (1985) 60 ALR 509 at 514.
7 Also see Solution 6 Holdings Ltd v Industrial Relations Commission of NSW (2004) 208 ALR 328 at 348 per Spigelmann CJ.
8 Ross v R (1979) 141 CLR 432 at 440; Commissioner of Stamps v Telegraph Investment Co Pty Ltd (1995) 184 CLR 453 at 479.
10 Modern Awards Review 2012 - Penalty Rates [2013] FWCFB 1635.
11 Ai Group submission, 20 February 2014 at paragraph 4.6, also see paragraphs 4.2 to 4.5.
12 ACCI submissions in reply at paragraph 3.6.
13 See, by way of example, Motor Traders Association of New South Wales and others [2013] FWC 3714 at [31]-[32], BPL Adelaide Pty Ltd - Poultry Processing Award 2010 [2013] FWC 6174 at [33], Modern Awards Review 2012 - Annual Leave [2014] FWCFB 255.
14 See Modern Awards Review 2012 [2012] FWAFB 5600 at [82] to [85].
15 [1990] HCA 9; (1990) 169 CLR 245 at 269. Also see R v Moore; ex parte Australian Telephone and Phonogram Officers’ Association [1982] HCA 5; (1982) 148 CLR 600 (11 February 1982).
16 Re Furnishing Industry Association of Australia (Queensland) Limited Union of Employers, Print Q9115, 27 November 1998 per Giudice J, Watson SDP, Hall DP, Bacon C and Edwards C.
17 (2003) 127 IR 205 at [48].
18 Also see Re Furnishing Industry Association of Australia (Queensland) Ltd Union of Employers, Print Q9115, 27 November 1998 per Giudice J, Watson SDP, Hall DP, Bacon C and Edwards C.
19 See Shop, Distributive and Allied Employees Association v National Retail Association (No 2) (2012) 205 FCR 227 at [35] per Tracey J.
20 Friends of Hichinbrook Society Inc v Minister for Environment (No 3) (1997) 77 FCR 153; Australian Competition and Consumer Commission v Leelee Pty Ltd [1999] FCA 1121; Edwards v Giudice [1999] FCA 1836.
21 (1987) 16 FCR 167 at 184; cited with approval by Hely J in Elias v Commissioner of Taxation (2002) 123 FCR 499 at [62] and by Katzmann J in CFMEU v FWA (2011) 195 FCR 74 at [103].
22 (2012) 205 FCR 227.
23 Ibid at [35]-[37] and [46].
24 HBF Health Funds Inc v Minister for Health and Ageing (2006) 149 FCR 291 at 295; Shop, Distributive and Allied Employees Association v National Retail Association (No 2) (2012) 205 FCR 227 at 239.
25 Helal v McConnell Dowell Constructors (Aust) Pty Ltd (2010) 193 FCR 213 at [24].
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