BACKGROUND PAPER |
|
| [2015] FWC 6958 |
| FAIR WORK COMMISSION |
STATEMENT |
Fair Work Act 2009
s.156 - 4 yearly review of modern awards
4 yearly review of modern awards—Award flexibility
(AM2014/300)
JUSTICE ROSS, PRESIDENT |
MELBOURNE, 9 OCTOBER 2015 |
4 yearly review of modern awards – award flexibility – multiple modern award coverage.
[1] Section 156 of the Fair Work Act 2009 (the Act) requires the Fair Work Commission (the Commission) to review all modern awards every four years.
[2] In a Statement issued on 17 March 2014, 1 the Commission stated that the first 4 yearly review of modern awards (the Review) would comprise of an Initial stage, dealing with jurisdictional issues, a Common issues stage and an Award stage.
[3] As part of the Award Flexibility Common Issue to the Review, the Commission intends to engage an external research provider to conduct research into the issues faced by employers who are subject to coverage by multiple modern awards.
[4] Multiple award coverage has the potential to create complexity for businesses. In its 2013-14 Annual Report the Fair Work Ombudsman (the FWO) states that:
[5] Majority clauses are one means by which award flexibility and efficiency may be increased by reducing the impact of multiple modern award coverage on employers. In National Wage Case April 1991, 3 a Full Bench of the AIRC provided the following description of a majority clause:
“A majority clause is one which prescribes that where workers covered by a particular award in an individual establishment are in the minority, the conditions of employment prescribed in the award covering the majority of employees in that establishment shall apply.” 4
[6] The Commission will finalise the research methodology following consultation with the external research provider. It is anticipated that the research will target small and medium sized employers who are covered by two or more modern awards.
[7] A background paper prepared by Commission staff is attached to this Statement. It provides a brief overview of majority clauses as an award flexibility mechanism.
[8] This Statement outlines the background, scope and process for the research the Commission will be conducting into multiple modern award coverage and the utility of majority clauses.
[9] The modern awards objective, in s.134 of the Act, is central to the review. The modern awards objective requires the Commission to take into account, among other things:
[10] Wright and Buchanan (2013) provide estimates on the number of awards used to set pay in non-public sector award-reliant organisations. They found that 24 per cent of all award-reliant organisations used more than one award. This figure was estimated to be 27 per cent for medium sized award-reliant organisations (20 to 99 employees).5
[11] Using data from the 2013 Award Reliance Survey (undertaken by Wright and Buchanan) the top five most common awards used by award-reliant organisations with multiple award coverage are (as percentage of award-reliant organisations using multiple modern awards):
[12] In contributing to the Review, the FWO has provided examples of cases which have raised issues related to the potential complexity of multiple modern award coverage within workplaces.6 In one example, the FWO cited a business which operated a service station, fast food outlet and a retail fishing tackle shop. The business employed 22 casual employees and during an audit by the FWO, it was found that the following awards applied to those employees:
[13] This is an example of a small to medium sized business that was required to pay staff under three separate awards each specifying different conditions and entitlements for staff at one workplace. The FWO audit concluded that 19 employees had been paid a flat rate and were not paid their entitlements to casual loadings or penalty rates in accordance with any award.
[14] If a majority clause had been included in the relevant awards, it may have reduced the regulatory burden on the employer by harmonising the conditions (depending on the terms of the majority clause) to which the employees were entitled. Such a reduction in complexity may have led to increased compliance.
[15] To inform the Review, the Commission proposes to engage an external research provider to undertake qualitative research into multiple modern award coverage.
[16] The purpose of the research is to canvass issues faced by employers with multiple modern award coverage and to explore the utility of majority clauses. The Commission will require the external research provider to provide a report which will be published on the Commission’s website.
[17] The research will explore the following issues in relation to multiple modern award coverage and majority clauses:
● nature and impact of issues arising for businesses due to multiple modern award coverage;
● strategies currently used by businesses to ameliorate the effects of multiple modern award coverage;
● user testing of majority clauses through hypothetical scenarios;
● anticipated effects of applying majority clauses to specific businesses; and
● perceptions of the utility of majority clauses to overcome multiple modern award coverage issues.
[18] It should be noted that the Commission has not formed a view on whether a majority clause should be included in any particular modern award.
[19] The Commission will engage an external research provider, with a view to publishing a report of the findings of the research on the Commission’s website by February 2016.
[20] Interested parties are invited to provide comment on the scope of this research described at paragraph [17] above by no later than 23 October 2015 to [email protected]. Comments will be considered for incorporation into the research design in consultation with the external research provider.
[21] Following the completion of the research, the Commission will be seeking submissions providing proposed majority clauses from parties by 31 March 2016.
PRESIDENT
Attachment: Background paper
BACKGROUND PAPER |
|
Fair Work Act 2009
s.156—4 yearly review of modern awards
4 Yearly Review of modern awards—Award flexibility common issue
(AM2014/300)
MELBOURNE, 9 OCTOBER 2015
Note: This is a background document only. It has been prepared by the Commission research area and does not represent the view of the Commission on any issue.
Contents |
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[1] The purpose of this background paper is to provide a brief overview of majority clauses as an award flexibility mechanism. It is not intended to be a comprehensive study of such clauses, but rather is intended to provide an overview of history, purpose and operation of these clauses. This background paper does not represent the views of the Fair Work Commission (the Commission) on any issue.
[2] A feature of the Australian industrial relations system is the potential for individual enterprises to find themselves subject to the coverage of multiple awards.
[3] Multiple award coverage may mean that a business is required to apply different sets of conditions to different groups of employees within the one enterprise. This has the potential to create a significant administrative burden for businesses and may lead to confusion and issues of non-compliance. One solution to this issue is through the use of mechanisms such as majority clauses.
[4] Majority clauses were a mechanism promoted by the Australian Industrial Relations Commission (AIRC), predominantly during the 1990s, as a means of increasing flexibility and efficiency in the workplace by reducing the impact of multiple award coverage in individual enterprises. In the 1991 National Wage Case decision a Full Bench of the AIRC provided the following description:
A majority clause is one which prescribes that where workers covered by a particular award in an individual establishment are in the minority, the conditions of employment prescribed in the award covering the majority of employees in that establishment shall apply. 7
[5] The following example, taken from the Engine Drivers and Firemen - General - Award 1998 8, illustrates how such clauses appeared in practice:
12. MAJORITY CLAUSE
12.1 This award applies in a limited way if employees covered by it are a minority of employees in an individual enterprise.
12.2 Employees covered by this award are a minority of employees in an individual enterprise if:
● their employer's main business or undertaking is other than the employment of persons described in 6.1 of this award; and
● the majority of their employer's employees are covered by an award made, or an agreement approved, by the Australian Industrial Relations Commission or a State arbitrator.
12.3 If employees covered by this award are a minority of employees, then:
● the award or agreement that applies to the majority of their employer's employees applies to them as a result of this clause; and
● the following provisions of this award will continue to apply to them and will override any conflicting provisions in the award or agreement that applies to the majority of the employer's employees:
1. Clause 20 - Classifications and wage rates; and
2. Clause 23 - Allowances 9
[6] A study published in 1991 showed that Australian workplaces were covered by an average of 2.1 awards. In examining the incidence of multiple award coverage in individual enterprises, the study noted that:
While recent policy debates have highlighted the problems of multi-award coverage at workplaces, this type of coverage usually occurs in a relatively few large workplaces. Almost half (47 per cent) of workplaces had no more than one award. On the other hand, 3 per cent of workplaces reported having six or more awards; one workplace even reported it was respondent to forty-six awards. While relatively few workplaces had multi-award coverage, its impact was pronounced because of the proportion of employees that were employed in these larger workplaces (25 per cent of the workforce surveyed). 10
[7] In response to this issue, the Confederation of Australian Industry (CAI), with the support of other employer organisations, advanced a submission to the AIRC’s 1991 National Wage Case made an argument for in support of the rationalisation of award coverage. It was submitted that the focus of award coverage should be on the particular industry in which the employer operates, rather than the individual roles performed by the employees within the enterprise. 11 The CAI submitted that the use of “broad majority clauses in occupational awards which span a number of different employer industries”12 was an appropriate means of rationalising both award and trade union coverage and reducing barriers to increased efficiency.13
[8] In response the AIRC declined to conduct a formal review of award and trade union coverage or structures, indicating a preference for dealing with the issue on an award-by-award basis. The AIRC suggested that parties facing the issue of multiple award coverage give consideration to the use of majority clauses, while cautioning the parties to:
...give particular attention to the practical implementation and application of such clauses having regard to, among other things, the ambit of the dispute upon which any proposed order is based and the results expected to follow from the adoption of a majority clause. 14
[9] Majority clauses received further attention from the AIRC in its 1994 Safety Net Adjustments and Review decision, where it endorsed the comments made in the earlier 1991 National Wage Case. 15 The need for discussions between interested parties as a precursor to the inclusion of majority clauses was emphasised:
In order to promote the use of the measures we have identified, we have decided that one of the tests to be met before an award can be varied for the second arbitrated safety net adjustment is that a programme of discussions between the award parties has been established to, among other things, give particular attention to the effective use of facilitative provisions and majority clauses. 16
[10] As part of the 1994 Safety Net Adjustments and Review, the AIRC established a process for reviewing awards pursuant to s.150A of the Industrial Relations Act 1988. Section 150A required the AIRC to review awards for the purpose of remedying any deficiencies in respect of the following:
(a) the terms of the award are no longer appropriate having regard to the Commission's duty under paragraph 90AA(2)(a) to ensure that the system of awards provides for secure, relevant and consistent wages and conditions of employment;
(b) the award contains a provision which discriminates against an employee because of, or for reasons including, race, colour, sex, sexual preference, age, physical or mental disability, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin;
(c) the award contains obsolete provisions or provisions that need updating;
(d) the award is not expressed in plain English;
(e) the award is not structured in a way that is as easy to understand as the subject matter allows;
(f) the award prescribes matters in unnecessary detail. 17
[11] In order to meet its obligations under s.150A the AIRC decided to develop a set of detailed principles to provide the framework for the award review process. The AIRC considered that the best method of developing these principles was through a pilot award review programme. 18
[12] The pilot programme was preceded by a conference of relevant parties, conducted by the AIRC, in which it was decided that a number of key issues would be best addressed by specific working parties. A working party was tasked with considering the issue of majority clauses 19, and it subsequently made the following recommendation:
1. A standard framework clause should be used for each award with the provisions which will continue to apply being the subject of case by case determination. The majority clause in the Transport Workers (Mixed Industries) Award 1984 [Print J4608] provides an example in this regard. A modified form of that clause is as follows:
“Where employees bound by this award employed by an employer whose principal business or undertaking is one other than the transport of materials upon public highways and the majority of employees are covered by an award made by (or agreement approved by) the Australian Industrial Relations Commission or [see note below] then the provisions of that award (or agreement) shall apply to the employer’s transport workers except the following provisions of this award which shall continue to apply . . .”
Note: 1. ACTU proposes “State arbitrator” (as defined in s.111(4)).
2. Employers propose “State industrial authority”.
The order arising from the decision in that case sets out a range of provisions which were to continue to apply.
2. The use of majority clauses should be encouraged and the scope of such clauses should be as broad as possible in order to ensure a high level of consistency with respect to the employment conditions applicable to award covered employees in particular enterprises such that they cover a wide range of employment conditions. 20
[13] The recommendation of the working party was addressed in Third Safety Net Adjustments and Section 150A Review decision. 21 The submissions made by various parties tended to focus on whether standard majority clauses should appear in all awards, or whether the insertion should be considered on an award-by-award basis:
ACCI's position, as summarised in its proposed s.150A principle, is that "appropriate majority clauses including within their scope virtually all conditions matters shall be included in awards with a multi-industry or `mixed' operation" [Exhibit ACCI 2: p.85]. In support of its position, ACCI argued that it was important that majority clauses be genuine and not "sham" majority clauses. ACCI asserted that not much progress had been made in the pilot award reviews on this issue and that, "at times in the discussions the union wishes to try and retain an influence on peripheral areas through retaining application of the award" [Exhibit ACCI 2: p.59].
ACM and MTIA supported the inclusion of majority clauses in all awards to ensure consistency in employment conditions generally. MTIA proposed a specific clause for the Metal Industry Award 1984 - Part I [Print F8925].
By contrast, the ACTU opposed any requirement that majority clauses be inserted into all awards and submitted that in many instances majority clauses will be inserted into awards as a result of the discussions required to access the second award level arbitrated safety net adjustment. The ACTU submitted that there "can be no pre-judging the merits in each particular case" and that a high level of consistency in employment conditions at enterprise level was already widely achieved (for example, where there are separate awards for clerical and production employees).
The Commonwealth endorsed the standard clause developed by the working party and submitted that, while its adoption should be encouraged in cases of multi-award coverage, a majority clause will not always be necessary. Awards in the Australian Public Service were cited as an example of a case where the use of majority clauses was not appropriate because the awards largely prescribed standard conditions of employment for all agencies.
Similarly, Queensland, while supporting the use of majority clauses to ensure a high level of consistency of employment conditions at an enterprise covered by more than one award, argued that these clauses should not be automatically inserted into awards but considered on an award-by-award basis. 22
[14] Ultimately, the AIRC determined that granting the third award level arbitrated safety net adjustment, would be contingent on relevant parties having had discussions on the introduction of a majority clause into the award in question. In situations where the parties were unable to reach agreement, the matter would be subject to conciliation and, if necessary, arbitration. The AIRC further stated that, in exercising its arbitral powers, the following principles would be applied:
First, in multi-industry awards the model clause set out in the recommendation of central working party (ii), or a clause to similar effect, will be adopted unless it can be demonstrated that there are special circumstances which warrant a different approach. Further, the model clause should be amended to include a reference to "State arbitrator" as proposed by the ACTU and supported by the Commonwealth and Queensland. This will ensure that a majority clause could only operate to apply award provisions prescribed by a State arbitrator who is able to exercise powers of compulsory arbitration. In our view such an approach is consistent with the Commission's obligation to maintain an effective framework for protecting wages and conditions of employment through awards [see ss.3(g) and 88(A)].
Second, the scope of the majority clause to be inserted will be determined on a case by case basis and should be as broad as possible. This should ensure a high level of consistency in the employment conditions applicable to award covered employees in particular enterprises. In determining the scope of a clause, the Commission will ensure the clause will not result in unfairness to the employees concerned. Each clause will need to be considered in the context of a specific application to vary the relevant award. 23
[15] In order to assist parties navigate the s.150A review, the AIRC published a Resource Book—Making Federal Awards Simpler— the aim of which was to provide parties with “readily accessible information concerning review techniques” 24 together with model clauses, guidance on drafting and other information “in relation to meeting the specific requirements of s.150A of the Act and about the process, timetabling and mechanisms necessary to carry out an effective review of awards.”25
[16] The Resource Book included a brief overview of majority clauses and excerpts of previous Full Bench decisions on the topic, an overview of the principles to be applied by the AIRC when exercising arbitral powers on the subject, and a model clause in the terms recommended by the central working party:
X. Majority Clause:
This award applies in a limited way if employees covered by it are a minority of employees in an individual enterprise.
X.1 Employees covered by this award are a minority of employees in an individual enterprise if:
X.1.1 their employer's main business of undertaking is other than [insert description of minority work]; and
X.1.2 the majority of their employer's employees are covered by an award made, or an agreement approved, by the Australian Industrial Relations Commission or a State arbitrator.
X.2 If employees covered by this award are a minority of employees, then:
X.2.1 the award or agreement that applies to the majority of their employer's employees applies to them as a result of this clause to the extent that the award deals with allowable award matters and provisions incidental to such matters and necessary for the effective operation of the award; and
X.2.2 the following provisions of this award will continue to apply to them and will override any conflicting provisions in the award or agreement that apply to the majority of the employer's employees:
[Then list the terms of this award that are to continue to apply to the employees who are a minority of the employees in an individual enterprise.] 26
[17] Under the Transitional Provisions of the Workplace Relations and Other Legislation Amendment Act 1996, the AIRC was required to review all federal awards, in what became known as the Award Simplification process. In the 1997 Award Simplification decision the Full Bench, commenting on the Joint Government submission on the use of majority clauses, reaffirmed its view that:
…the use of majority clauses has the potential to be an important factor in facilitating the ease of operation of awards at the workplace and ensuring that awards do not operate to hinder the flexible and effective application of working practice and arrangements.
…
In our view the observations made in the October 1995 decision regarding majority clauses remain relevant. ... As part of the award simplification process the Commission will, where appropriate include a majority clause in multiple-industry awards. 27
[18] The AIRC began the award modernisation process in March 2008, following a written request from the Minister for Employment and Workplace Relations to the AIRC President under s.576C(1) of the Workplace Relations Act 1996 (the WR Act). The process was governed by Part 10A of the WR Act, and in May 2008 a Full Bench was constituted to oversee the process.
[19] All stakeholders and interested parties were invited to make submissions on what should be included in modern awards for a particular industry or occupation. Separate processes, including variously, the provision of submissions, hearings and release of draft awards, were undertaken in respect of the creation of each modern award to ensure parties were able to make submissions and raise matters of concern relevant to particular awards. By the end of 2009 the AIRC had reviewed more than 1500 federal awards and notional agreements preserving State awards (NAPSAs) and created 122 industry and occupation based modern awards. These awards commenced operation on 1 January 2010.
[20] While the award modernisation process saw a significant reduction in the number of awards the Productivity Commission recently observed in Issues Paper 2 (published in January 2015) that multiple award coverage remains an issue for some employers:
Even though now much simpler than in the past, some claim that awards can complicate human resource management, may contribute to payment errors by employers, and reduce the capacity of businesses to adapt (especially for those enterprises covered by multiple awards). 28
[21] Majority clauses received very little attention during the Award Modernisation process. The issue was only raised in relation to the proposed Road Transport and Distribution Award 2010 29. In explaining the content of the coverage clause as it appeared in the first exposure draft, and with specific reference to the Transport Workers (Mixed Industries) Award 200230, the Full Bench made the following comments:
The coverage of the award also extends to the transport of goods, etc. where the work performed is ancillary to the principal business, undertaking or industry of the employer. This reflects the scope of the pre-reform Transport Workers (Mixed Industries) Award 2002. That award contained a majority clause. The wording of that clause is not suitable for a modern award. We have included a draft provision in cl.4.3 of the RT&D Modern Award designed to operate in circumstances where the principal business of the employer is not road transport and distribution and that employer is covered by another modern award as is the relevant employee. The intention is that, in those circumstances, the other modern award will regulate the employee’s terms and conditions. This issue has not arisen in any significant way during the making of the priority awards and we invite the parties’ submissions in relation to the wording of this clause and any related matters. 31
[22] Clause 4.3, as it existed in the first exposure draft for the Road Transport and Distribution Award 2010, was expressed as follows:
4.3 This award does not cover an employer and an employee where:
(a) the activities described in the definition of road transport and distribution are ancillary only to the principal business, undertaking or industry of the employer; and
(b) the employer and employee are covered by another modern award.
[23] Ai Group sought to have a majority clause inserted into the Road Transport and Distribution Award 2010 32, and put the following submissions to the AIRC:
444. Ai Group urges the Commission to reconsider their determination that ‘majority clauses’ are not appropriate for inclusion within the RT&D Award. We submit that the very nature of the Mixed Industries Award which essentially operates as an occupational award, and is capable of operating in a vast array of industries, requires that there be a mechanism for alignment of conditions such as hours of work, shift definitions and the like with those that operate for the majority of the business.
445. We contend that to do otherwise would potentially create significant increased costs for employers who currently utilise this provision within the Mixed Industries Award and its equivalent provision in the various mixed industry NAPSAs that apply to transport work.
…
448. The effect of preventing a ‘majority clause’ from being inserted into the RT&D Modern Award would require insertion of a range of new conditions not only in these modern awards, but also any other modern award which may utilise transport drivers in an ancillary capacity so as not to disturb the existing terms and conditions of employees. We respectfully submit, that such an approach is highly unnecessary and can be avoided by simply retaining the status quo and inserting a provision in the following terms within the RT&D Modern Award:
4.4 Where this award covers an employer and employee and the work performed is ancillary to the principal business, undertaking or industry of the employer, the terms of the modern award that apply to the majority of employees of the employer (“the Majority Award”) shall apply to employees covered by this award save and except for the following provisions which shall override any conflicting provisions within the Majority Award:
Part/Clause |
Subject |
Part 1 |
Application and Operation |
Clause 15 of Part 4 |
Classification and minimum wage rates |
Clause 16.3 |
Expense related allowances |
Clause 19 |
Higher duties 33 |
[24] The Australian Federation of Employers and Industries, argued for a majority clause in similar terms to that which appeared in the Transport Workers (Mixed Industries) Award 2002 34, and submitted that:
19. The regulation of transport work of mixed enterprises should take account of the different circumstances that can often pertain to such work and the desirability of common conditions between the minority performing transport work and the majority performing non-transport work. For this reason, a mixed enterprise employer should be able to elect to adopt the same provisions for their transport workers as for the majority of their other workers. 35
[25] Ultimately, the Full Bench concluded it would be inappropriate to include a majority clause. In response to the submission of Ai Group, the Full Bench made the following observations about the Transport Workers (Mixed Industries) Award 2002 36 and the rationale behind the decision not to include a majority clause:
Modern awards are not to have the equivalent of named respondent employers. The Mixed Industries Award makes it clear that it only applies where the employee of a respondent employer is required to perform work in one of the classifications in the award. In this respect we note that the classification structure is very similar to the RT&D Modern Award which in turn has been based on the pre-reform Transport Workers Award 1998 (TWU Award 1998). Clause 9 of the Mixed Industries Award provides that if employees are in a minority of employees in a respondent employer’s enterprise and the majority of the employer’s employees are covered by another award then certain identified provisions would apply and the balance of provisions could be those applying in an award covering the majority of the employer’s employees. The identified provisions included the rates of pay, and in this respect, we note that those rates were the same as in the TWU Award 1998.
Based on the observations we have made above we have not been persuaded to put a majority clause in the RT&D Modern Award. The manner in which the clause in the Mixed Industries Award operated cannot easily be accommodated in the modern award regime. We also note in this respect, the submission that in the absence of named employers, the manner in which a majority and a minority of relevant employees may be identified and the time when that assessment should occur was likely to give rise to some doubts about award coverage. 37
[26] The Commission is currently conducting a review of all modern awards, in accordance with section 156 of the Fair Work Act 2009 (4 Yearly Review).
[27] The issue of award flexibility is being addressed as part of the review but as yet, no submissions have been advanced to insert a majority clause into a particular modern award.
[28] To date a limited number of parties have made submissions on the issue of award coverage. However, those submissions relate to the issue of overlapping coverage and the problems that may arise in determining which award is most appropriate to the role being performed, rather than the number of awards that may apply within a specific enterprise.
[29] For example, it was submitted by the Housing Industry Association (HIA) that the following clause should be inserted into the Timber Industry Award 2010 (the Timber Award) in order to address the issue of multiple award coverage:
For the avoidance of doubt an employer, whose employees carry out works incidental to or, as a consequence of, the predominant business activity of that employer, does not affect the modern award coverage of that business under this award. 38
[30] In support of the change proposed, the HIA submitted that:
The proposed variation would clarify that once a business is determined to fall within the timber ‘industry’, on basic principles of statutory construction, in the event of overlapping coverage works carried out by an employee that are incidental or ancillary to the principle business, which might either have occupational coverage under another modern awards or be in a classification under another modern award will not change or make invalid coverage under the Timber Award. 39
[31] A Full Bench of the Commission, in a decision issued on 18 June 2015, declined to vary the coverage clause as sought by the HIA. 40
[32] The issue of overlapping modern award coverage has, to some extent, been addressed through the inclusion of Multiple Coverage Clauses, which take the following form:
Where an employer is covered by more than one award, an employee of that employer is covered by the award classification which is most appropriate to the work performed by the employee and to the environment in which the employee normally performs the work. 41
[33] The office of the Fair Work Ombudsman (the FWO) has submitted that:
Whilst the Multiple Coverage Clause provides some guidance on how to assess overlapping awards, the direction for employers to interpret overlapping awards by assessing the "most appropriate" award classification is unlikely to assist employers who are unfamiliar with historic industrial terms and award interpretation principles 42.
[34] Despite the significant attention given to majority clauses in the 1990s, and broad support for their inclusion in awards, majority clauses do not appear to have been inserted in many awards. In its 2001 Living Wage Claim decision, the Full Bench reflected on the scarcity of such clauses, commenting that:
Despite the encouragement the Commission has given previously to such clauses being introduced into awards it seems parties have not seen the need to introduce them into many awards. Nothing has been put to us to justify revisiting this matter. Our support for majority clauses as a means of rationalising conditions of employment in particular enterprises remains. 43
[35] With the exception of the Road Transport and Distribution Award 2010 44, there appears to have been no discussion of including majority clauses in any other modern awards during the award modernisation process and it would seem that there has been no meaningful discussion of the desirability of including them in federal awards generally since 2001.
2 Fair Work Ombudsman, Annual Report 2013–14, p. 23.
3 AIRC, National Wage Case April 1991, Dec 300/91 M Print J7400 (16 April 1991).
4 AIRC, National Wage Case April 1991, Dec 300/91 M Print J7400 (16 April 1991), p.48.
5 Wright S and Buchanan J (2013), Award Reliance, Research Report 6/2013, Fair Work Commission, Melbourne, p. 25.
6 See Enforceable Undertaking between the Commonwealth of Australia (as represented by the Office of the Fair Work Ombudsman) and Bransfords (Qld) Pty Ltd (ACN: 061 777 722).
7 AIRC, National Wage Case April 1991, Dec 300/91 M Print J7400 (16 April 1991), p.48.
8 Engine Drivers and Firemen – General – Award 1998 (AP780049) [Fed], para 12.
9 ibid.
10 R Callus, A Moorehead, M Cully and J Buchanan, Industrial Relations at Work, the Australian Workplace Industrial Relations Survey, AGPS 1991, p.41
11 AIRC, National Wage Case April 1991, Dec 300/91 M Print J7400 (16 April 1991), p.48.
12 Ibid., p.47.
13 ibid.
14 ibid., p.48.
15 AIRC, Safety Net Adjustments and Review September 1994, Dec 1634/94 M Print L5300 (21 September 1994), p. 25.
16 ibid.
17 Industrial Relations Act 1988 (Cth) s.150A(2).
18 AIRC, Safety Net Adjustments and Review September 1994, Dec 1634/94 M Print L5300 (21 September 1994), p. 39.
19 AIRC, Third Safety Net Adjustments and Section 150A Review October 1995, Dec 2120/95 M Print M5600 (9 October 1995) p. 12.
20 ibid., p.31.
21 ??
22 ibid., pp. 31-34.
23 ibid.
24 AIRC, ‘Introduction’ in Making Modern Federal Simpler, 1995, p. 3.
25 ibid., p.4.
26 AIRC, ‘Majority Clauses’ in Making Modern Awards Simpler, 1995, p. 3.
27 AIRC, Award Simplification Decision, Dec 1533/97 M [Print P7500 (23 December 1997)], p.36.
28 Productivity Commission, Workplace Relations Framework: Safety Nets – Issues Paper 2, January 2015.
29 Road Transport and Distribution Award 2010 (MA000038) [Fed].
30 Transport Workers (Mixed Industries) Award 2002 (AP813166) [Fed].
31 AIRC, Award Modernisation, [2009] AIRCFB 50 (23 January 2009) , at 100.
32 Road Transport and Distribution Award 2010 (MA000038) [Fed].
33 Australian Industry Group, Award Modernisation Submissions and Draft Award Provisions, Stage 2 Industries / Occupations, 13 February 2009, pp.118-121.
34 Transport Workers (Mixed Industries) Award 2002 (AP813166) [Fed].
35 Australian Federation of Employers and Industries, Submission on Behalf of the Australian Federation of Employers and Industries (AFEI), 31 October 2008, p.8.
36 Transport Workers (Mixed Industries) Award 2002 (AP813166) [Fed].
37 AIRC, Award Modernisation, [2009] AIRCFB 345 (3 April 2009), at 169-170.
38 Housing Industry Association, Submission by the Housing Industry Association to the Fair Work Commission on the Timber Industry Award – AM2014/92, 19 December 2014, p.1.
39 Ibid., p.16.
41 For example, see clause 4.8 of the Airport Employees Award 2010 (MA000049) [Fed].
42 Fair Work Ombudsman, Modern Award Review – Coverage Issues in Modern Awards, 20 May 2014, p.2.
43 AIRC, Safety Net Review – Wages May 2001, PR002001 (2 May 2001) at 162.
44 Road Transport and Distribution Award 2010 (MA000038) [Fed].
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