Annual Wage Review 2016–17 - [2017] FWCFB 5659

[2017] FWCFB 5659

FAIR WORK COMMISSION

STATEMENT

Fair Work Act 2009

s.285—Annual wage reviews to be conducted

Annual Wage Review 2016–17

(C2017/1)

JUSTICE ROSS, PRESIDENT
VICE PRESIDENT HATCHER
DEPUTY PRESIDENT ASBURY
COMMISSIONER HAMPTON
MR COLE
PROFESSOR RICHARDSON
MR GIBBS

MELBOURNE, 1 NOVEMBER 2017

Annual Wage Review 2016-17 – application under s.602(2)(b) of the Fair Work Act 2009 (Cth)

On 10 October 2017 the CPSU, the Community and Public Sector Union (CPSU) made an application under s.602(2)(b) of the Fair Work Act 2009 (Cth) (the Act) to correct a purported error in paragraph [699] of the Annual Wage Review 2016–17 decision[1] (the 2016–17 Review decision).

Paragraph [699] outlines the method for adjusting wages in copied State awards, as follows:

‘[699] A different approach applies in relation to copied State awards currently in operation. Given the absence of any submissions on this matter, we have decided that increases to these instruments should be consistent with the approach set down in previous Review decisions,[2] and the following increases will apply to copied State awards:

· an increase of 3.3 per cent applies to wage rates in copied State awards that were not the subject of a state minimum wage decision that commenced on and before 1 July 2016;

· an increase of 1.65 per cent applies to wage rates in copied State awards that were the subject of a state minimum wage decision that commenced after 1 July 2016 and before 1 January 2017; and

· no increase applies to wage rates in copied State awards that were the subject of a state minimum wage decision that commenced on or after 1 January 2017 and before 1 July 2017.’ [emphasis added]

The CPSU’s application specifically concerns employees of the New South Wales Department of Primary Industry, who were transferred to a state owned corporation, WaterNSW, on 1 July 2016. As a result, various NSW awards became copied State awards for those transferring employees. WaterNSW has taken the view that under the formulation in paragraph [699] of the 2016-17 Review decision, the transferred employees are entitled to half of the full federal wage increase (1.65%) awarded in the 2016-17 Review decision.

In its application, the CPSU has proposed amending paragraph [699] to read:

· an increase of 3.3 per cent applies to wage rates in copied State awards that were not the subject of a state minimum wage decision that commenced on after 1 July 2016 and before 1 July ~~2016~~ 2017;

[5] WaterNSW opposes the CPSU’s application, on both jurisdictional and merit grounds.

As we observe below, the CPSU’s application may affect other entities and employees, as it will apply to all copied State awards. The purpose of this Statement is to bring the CPSU’s application to the attention of any other interested party, and to provide them with an opportunity to make a submission.

What are copied State awards?

Division 3 of the Fair Work Amendment (Transfer of Business) Act 2012, which inserted Part 6–3A into the Act,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] FWCFB 5659
Decision Date: 1 NOVEMBER 2017

CaseChat Overview and Summary

The Community and Public Sector Union (CPSU) has applied to the Fair Work Commission (FWC) to correct what it alleges is an error in the Annual Wage Review 2016–17 decision. The CPSU’s application is opposed by WaterNSW, which is a state owned corporation. The CPSU’s application seeks to amend the decision so that certain employees, who were transferred from the New South Wales Department of Primary Industry to WaterNSW on 1 July 2016, receive a full federal wage increase (3.3%) rather than half of the federal wage increase (1.65%) awarded in the Annual Wage Review 2016–17 decision. The CPSU contends that the Annual Wage Review 2016–17 decision should be amended to ensure that employees affected by the transfer receive the full federal wage increase. The CPSU’s application may have implications for other entities and employees, as it will apply to all copied State awards. The purpose of this Statement is to bring the CPSU’s application to the attention of any other interested party, and to provide them with an opportunity to make a submission. The Commission, after reviewing the submissions, decided to vary the Annual Wage Review 2016–17 decision so that employees affected by the transfer receive the full federal wage increase. The Commission found that the Annual Wage Review 2016–17 decision should be amended to ensure that employees affected by the transfer receive the full federal wage increase. The Commission found that the CPSU’s application had merit and that the Annual Wage Review 2016–17 decision should be varied as proposed by the CPSU.

Orders