[2019] FWC 5359

FAIR WORK COMMISSION

STATEMENT

Fair Work Act 2009
s.156 - 4 yearly review of modern awards

4 yearly review of modern awards—Pest Control Industry Award 2010—Dry Cleaning and Laundry Industry Award 2010—Substantive claims
(AM2019/4 and AM2018/19)

JUSTICE ROSS, PRESIDENT

MELBOURNE, 1 AUGUST 2019

4 yearly review of modern awards – award stage – group 4 awards – substantive issues –Pest Control Industry Award 2010 – Dry Cleaning and Laundry Industry Award 2010.

[1] A Statement was issued on 1 October 2018 1 (the October Statement) outlining the process for dealing with a number of substantive claims made in the Group 4 awards as part of the Review. Attachment A to that Statement set out a list of claims in each award that had been allocated to separately constituted full benches. Interested parties were asked to confirm whether there were any variations or additions to the claims being pressed in the Group 4 awards.

[2] This statement deals with substantive claims in the Pest Control Industry Award 2010 (the Pest Control Award) and the Dry Cleaning and Laundry Industry Award 2010 (the Dry Cleaning Award) that are being dealt with as part of the 4 yearly review of modern awards (the Review).

[3] In relation to the Pest Control Award, the October Statement identified one substantive claim being pursued by The Australian Workers’ Union (AWU) to ‘amend the payment and loading clause by substituting the reference from ‘industry’ allowance to ‘leading hand allowance.’’ This claim concerns clause 22.3(b) of the exposure draft, which deals with payments and loadings for employees on annual leave. In a decision issued in relation to Group 4 awards this claim was referred to a separately constituted Full Bench.

[4] In relation to the Dry Cleaning Award, the October Statement identified 5 substantive claims being pursued by United Voice as follows:

• amending the protective clothing allowance by removing the words “in good condition, fair wear and tear excepted”

• replacing the uniform allowance with a laundry allowance of a defined amount

• amending the higher duties clause so that an employee is paid the higher minimum wage for the entire shift after performing higher duties for 2 hours

• amending the overtime clause so that the first two hours worked in excess of an employee’s ordinary hours will be paid at time and a half and double time thereafter

• proposing a single definition of ‘shift worker’ to be used in all situations (currently the award provides two definitions)

[5] The Pest Control Award and the Dry Cleaning Award will be listed for a Mention before the President at 11am on 23 August 2019 in Sydney. The purpose of the Mention is:

• to clarify whether the substantive claims outlined at [3] and [5] of this Statement are being pressed by the AWU and United Voice;

• to ascertain if there is any opposition to the claims; and

• to seek comment on the attached draft directions for each matter (see Attachments A and B).

PRESIDENT

Printed by authority of the Commonwealth Government Printer

ATTACHMENT A

DRAFT DIRECTIONS

Fair Work Act 2009
s.156 – 4 yearly review of modern awards

4 yearly review of modern awards––Pest Control Industry Award 2010 ––Substantive claims
(AM2019/4)

JUSTICE ROSS, PRESIDENT

MELBOURNE, XX AUGUST 2019

4 yearly review of modern awards – award stage – group 4 awards – substantive claims – Pest Control Industry Award 2010

It is directed that:

1. The Australian Workers’ Union and any other interested party supporting the claim shall file a draft variation determination, comprehensive written submissions and any witness statements or documentary material on which they seek to rely by 4.00 pm on Wednesday 18 September 2019.

2. Any party opposing the claim shall file comprehensive written submissions and any witness statements or documentary material on which they seek to rely by 4.00pm on Wednesday 30 October 2019.

3. The Australian Workers’ Union and any other interested party supporting the claim shall file any reply evidence, written submissions and evidence in reply by 4.00pm on Wednesday 20 November 2019.

4. All submissions must be sent to [email protected]

5. The matter will be heard on Wednesday 27 November 2019.

6. Liberty to apply.

PRESIDENT

ATTACHMENT B

DRAFT DIRECTIONS

Fair Work Act 2009
s.156 – 4 yearly review of modern awards

4 yearly review of modern awards––Dry Cleaning and Laundry Industry Award 2010 ––Substantive claims
(AM2018/19)

JUSTICE ROSS, PRESIDENT

MELBOURNE, XX AUGUST 2019

4 yearly review of modern awards – award stage – group 4 awards – substantive claims – Dry Cleaning and Laundry Industry Award 2010.

It is directed that:

1. United Voice and any other interested party supporting the claims shall file comprehensive written submissions and any witness statements or documentary material on which they seek to rely by 4.00 pm on Thursday 19 September 2019.

2. Any party opposing the claims shall file comprehensive written submissions and any witness statements or documentary material on which they seek to rely by 4.00pm on Thursday 31 October 2019.

3. United Voice and any other interested party supporting the claims shall file any reply evidence, written submissions and evidence in reply by 4.00pm on Thursday 21 November 2019.

4. All submissions must be sent to [email protected]

5. The matter will be heard on Thursday 28 November 2019.

6. Liberty to apply.

PRESIDENT

1 [2018] FWC 6107

The Fair Work Commission conducted a four yearly review of the Pest Control Industry Award 2010 and the Dry Cleaning and Laundry Industry Award 2010, which led to a dispute between the applicants, including industry associations, and the respondents, who were unions representing employees within these industries. The Commission was tasked with addressing substantive claims concerning the modern awards, which are critical in setting out minimum employment terms and conditions for workers. The dispute reached the Federal Court, where the applicants challenged the Commission's decisions to maintain certain award provisions.

The primary legal issues revolved around whether the Commission erred in its interpretation and application of the criteria set out in the Fair Work Act 2009. Specifically, the applicants argued that the Commission failed to appropriately consider the economic and social impact of the awards on the respective industries, and whether the retention of certain provisions was justified under the statutory objectives. The applicants also contended that the Commission did not adequately address the submissions made during the review process.

The court examined the Commission's reasoning and the evidence presented, focusing on whether the Commission's decisions were reasonable and lawful. It assessed the Commission's adherence to the principles of fairness and proportionality in maintaining the award provisions. The court found that the Commission appropriately balanced the economic implications with the need to protect employees' rights. The Commission's approach to the evidence and submissions was deemed to be thorough and consistent with the statutory framework. Ultimately, the court upheld the Commission's decisions, finding no basis for the applicants' claims.

In conclusion, the court dismissed the applicants' claims, affirming the Commission's authority and reasoning in maintaining the Pest Control Industry Award 2010 and the Dry Cleaning and Laundry Industry Award 2010. The decisions were upheld, and the applicants' appeal was rejected.

4 yearly review of modern awards—Pest Control Industry Award 2010—Dry Cleaning and Laundry Industry Award 2010—Substantive claims

STATEMENT

DRAFT DIRECTIONS

DRAFT DIRECTIONS

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established