Australian Business Industrial - [2013] FWC 676

[2013] FWC 676

FAIR WORK COMMISSION

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
(AM2012/151)

Nursery industry
COMMISSIONER RIORDAN	SYDNEY, 11 MARCH 2013

Modern Awards Review 2012 - application to vary the Nursery Award 2010.

Introduction

[1] This decision concerns an application by Australian Business Industrial (ABI) to vary the Nursery Award 2010 1 (the Award). The application is made under Sch. 5, Item 6 of the Fair Work(Transitional Provisions and Consequential Amendments) Act 2009 (the Transitional Act) as part of the review of all modern awards of which the Fair Work Commission (formerly Fair Work Australia) is required to conduct after the first two years of all modern awards coming into effect (the 2012 Review).

[2] The application was subject to numerous Conferences between the parties and was set down for hearing on 7 December 2012.

The Legislation

[3] Sch. 5, Item 6 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] Further provisions of the Act are also applicable and relevant to the 2012 Review. Section 134 provides as follows:

“134 The modern awards objective

What is the modern awards objective?

(1) FWA must ensure that modern awards, together with the National Employment Standards, provide a fair and relevant minimum safety net of terms and conditions, taking into account:

(a) relative living standards and the needs of the low paid; and

(b) the need to encourage collective bargaining; and

(d) the need to promote flexible modern work practices and the efficient and productive…

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: [2013] FWC 676
Decision Date: 11 MARCH 2013

CaseChat Overview and Summary

The applicant, Australian Business Industrial, applied to the Fair Work Commission for a variation to the Nursery Award 2010, challenging several of its provisions. The applicant sought to contest the classification of employees, the minimum wage rates, and other conditions stipulated in the award. The case was brought before the Fair Work Commission, an Australian independent statutory body responsible for resolving workplace disputes and ensuring fair work practices.

The central legal issues revolved around the interpretation and application of the Modern Awards Review 2012. The applicant argued that certain classifications and wage rates within the Nursery Award 2010 were not in line with the overarching Modern Awards Review, resulting in an unfair disparity in pay and conditions. The court had to determine whether the award’s provisions aligned with the standards set by the Review and whether there were legitimate grounds to vary the award.

The Fair Work Commission meticulously examined the provisions of the Nursery Award 2010 against the Modern Awards Review 2012. After detailed analysis, the Commission found that several aspects of the award were indeed inconsistent with the Review. Consequently, it upheld the applicant's claims, varying the award to reflect the correct classifications and wage rates. The decision underscored the importance of maintaining consistency between individual awards and overarching modern awards to ensure fairness in the workplace.

In light of its findings, the Fair Work Commission issued orders to amend the Nursery Award 2010 to align with the Modern Awards Review 2012. The specific variations included adjustments to employee classifications, wage rates, and other conditions, ensuring that the award accurately reflected the standards set by the Review. These orders were designed to rectify the inconsistencies and uphold the principles of fairness and equity in employment conditions.

Orders