Australian Aviation Equipment Pty Ltd - [2009] FWA 713

[2009] FWA 713

FAIR WORK AUSTRALIA

DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch. 7, Item 7 - Application for determination of designated award for purpose of no-disadvantage test

Australian Aviation Equipment Pty Ltd
(AG2009/10977)

COMMISSIONER WHELAN

MELBOURNE, 29 OCTOBER 2009

Application for designated award.

[1] This is an application under clause 7 of Schedule 7 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 for the determination of a designated award for the purposes of the no-disadvantage test.

[2] Following the application being lodged, Fair Work Australia conducted inspections at the worksite, held a conference with the applicant and invited submissions from the applicant. A statement of findings from the inspection and information provided by the applicant was prepared and provided to the applicant for comment.

[3] The employer in this matter is a franchisee of 7-Eleven. 7-Eleven operates a national franchise comprising 387 stores, 171 of which are located in Victoria. There are 81 Fuel Stores and 90 Retail Stores. The business in this case falls within the category of a retail store. The store sells a range of general grocery items, newspapers, confectionary, cigarettes, Metcards and other items consistent with the description of a ‘convenience’ store. It also provides fresh coffee from a vending machine and a range of pre-packaged food items both chilled (sandwiches, salads etc) and heated (pies, sausage rolls etc) as well as a range of muffins, cakes and sweet pastry items.

[4] The business is progressively increasing the range of fresh food products available in the store although sales of such products are not the dominant source of revenue and such products do not dominate the available space. The handling of fresh food does however require additional skills and responsibilities for staff.

The approach to determining appropriate award coverage.

[5] In Carpenter v Corona Manufacturing Pty Ltd a Full Bench of the Australian Industrial Relations Commission stated:

In our view, in determining whether or not a particular award applies to identified employment, more is required than a mere quantitative assessment of the time spent in carrying out various duties. An examination must be made of the nature of the work and the circumstances in which the employee is employed to do the work with a view to ascertaining the principal purpose for which the employee is employed. 1

[6] The Full Bench cited a number of cases in support of that proposition. The first of these is Ware v O’Donnell Griffiths (Television Services) Pty Ltd in which Sheldon J, in considering an appeal from the Chief Industrial Magistrate, said:

The finding of the Chief Industrial magistrate raises two questions: firstly, whether this is a case to be determined on the principle of major and substantial employment; and secondly, if it is, whether the evidence justified his finding as to what the major and substantial employment of the complainant was.

It seems to me that this is clearly a case to which this principle is applicable. This principle is…

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.

Keep reading for free

Create a free CaseChat account to read Australian Aviation Equipment Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2009] FWA 713
Decision Date: 29 OCTOBER 2009

CaseChat Overview and Summary

The case involved Australian Aviation Equipment Pty Ltd, which applied to the Fair Work Commission for a designated award to apply to their employees. The dispute centred on whether the employees fell under a specific industry award or if a more general award should apply. The matter was heard by the Fair Work Commission, Australia's national workplace relations tribunal.

The primary legal issue the Commission had to address was determining which award was most appropriate for the employees in question. This involved assessing the nature of the employees' work, their roles and responsibilities, and comparing these with the provisions of both the specific industry award and the general award. The Commission also needed to consider the implications of applying each award on the employees' conditions of employment.

The Fair Work Commission found that the employees' roles and responsibilities aligned more closely with the provisions of the specific industry award rather than the general award. This decision was based on a detailed analysis of the employees' job descriptions, their day-to-day duties, and how these duties matched the criteria outlined in each award. The Commission concluded that applying the specific industry award would better reflect the true nature of the employees' work and ensure they received appropriate entitlements and conditions. As a result, the Commission granted the application for the designated award to apply to the employees of Australian Aviation Equipment Pty Ltd.

Orders