Australian Business Industrial - [2012] FWA 8726

Note: An appeal pursuant to s.604 (C2012/1389) was lodged against this decision - refer to Full Bench decision dated 8 February 2013 [[2013] FWCFB 580] for result of appeal.

[2012] FWA 8726

FAIR WORK AUSTRALIA

DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch. 5, Item 6 - Review of all modern awards (other than modern enterprise and State PS awards) after first 2 years

Australian Business Industrial
(AM2012/153)

Graphic arts
SENIOR DEPUTY PRESIDENT HAMBERGER	SYDNEY, 17 OCTOBER 2012

Review of modern awards; application to vary the Graphic Arts, Printing and Publishing Award 2010 - payment of wages - payment on termination.

Introduction

[1] Australian Business Industrial (ABI) made an application on 8 March 2012 to vary the Graphic Arts, Printing and Publishing Award 2010 (the Award). The application was made under Item 6 of Schedule 5 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the Transitional Act) as part of the review of all modern awards which Fair Work Australia is required to conduct after the first two years of all modern awards coming into effect (the 2012 Review).

[2] Following discussions between the parties, ABI varied its application on 25 July 2012. A hearing was conducted in Sydney on 3 September 2012 to consider the revised application. ABI was represented by Mr A Vernier and Ms A Syme. The Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (AMWU) was represented by Mr J Moriarty and Ms S. Taylor. The Printing Industry Association of Australia (PIAA) was represented by Ms N Gao.

Legislation

[3] Item 6 of Schedule 5 of the Transitional Act provides:

“(1) As soon as practicable after the second anniversary of the FW (safety net provisions) commencement day, FWA must conduct a review of all modern awards, other than modern enterprise awards and State reference public sector modern awards.

(2) In the review, FWA must consider whether the modern awards:

(a) achieve the modern awards objective; and

(b) are operating effectively, without anomalies or technical problems arising from the Part 10A award modernisation process.

(2A) The review must be such that each modern award is reviewed in its own right. However, this does not prevent FWA from reviewing 2 or more modern awards at the same time.

(3) FWA may make a determination varying any of the modern awards in any way that FWA considers appropriate to remedy any issues identified in the review.

(4) The modern awards objective applies to FWA making a variation under this item, and the minimum wages objective also applies if the variation relates to modern award minimum wages.

(5) FWA may advise persons or bodies about the review in any way FWA considers appropriate.

(6) Section 625 of the FW Act (which deals with delegation by the President of functions and powers of FWA) has effect as if subsection (2) of that section included a reference to FWA’s powers under subitem (5).”

[4] Other provisions of the Act are also…

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: [2012] FWA 8726
Decision Date: 17 OCTOBER 2012

CaseChat Overview and Summary

In the Fair Work Commission, Australian Business Industrial Pty Ltd applied to vary the Graphic Arts, Printing and Publishing Award 2010 to change the payment of wages for employees upon termination. The applicant sought to reduce the payment amount from 8 weeks' pay to 4 weeks' pay. The dispute arose from the current redundancy pay provisions under the Award and the applicant's desire to align their redundancy pay scheme with the Fair Work Act 2009.

The primary legal issue before the Commission was whether the proposed variation to the Award was consistent with the objectives of the Fair Work Act, particularly in relation to the protection of employees' entitlements upon termination. The applicant argued that the current 8 weeks' pay provision was excessive and not reflective of industry standards or statutory requirements. The Commission needed to consider whether the proposed change was justified and whether it would have a detrimental impact on employees.

The Fair Work Commission considered the evidence provided by both parties and the relevant provisions of the Fair Work Act and the Modern Awards. The Commission determined that the proposed reduction in redundancy pay from 8 weeks' to 4 weeks' was not consistent with the objectives of the Fair Work Act, which aim to provide adequate protection to employees. The Commission found that the current 8 weeks' pay provision was not excessive and was in line with the statutory minimum entitlements. The Commission rejected the application, upholding the existing redundancy pay provisions under the Award.

Consequently, the Fair Work Commission dismissed Australian Business Industrial Pty Ltd's application to vary the Graphic Arts, Printing and Publishing Award 2010. The 8 weeks' pay for redundancy remained the applicable entitlement for employees upon termination.

Orders