Australian, Municipal, Administrative, Clerical and Services Union
[2012] FWA 9551
•9 NOVEMBER 2012
[2012] FWA 9551 |
|
REASONS FOR 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, Municipal, Administrative, Clerical and Services Union
(AM2012/131)
Clerical industry - legal services | |
SENIOR DEPUTY PRESIDENT KAUFMAN | MELBOURNE, 9 NOVEMBER 2012 |
Modern Awards Review 2012 - application to vary the Legal Services Award 2010 - cogent reasons - evidence.
INTRODUCTION
[1] The Australian Municipal, Administrative, Clerical and Services Union (the ASU) has applied to vary the Legal Services 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 which Fair Work Australia is required to conduct after the first two years of all modern awards coming into effect (the 2012 Review).
[2] The ASU seeks to amend clauses 3.1, 14, 19 and 30 of the Award, as well as Schedule B of the Award. The ASU also seeks to insert a new clause into the Award, referred to in its application as clause 39. The thrust of the variations is to extend the coverage of the Award to employee lawyers and to remove the annualised salaries clause. The ASU accepts that if I were not to extend the coverage of the Award to employee lawyers, the other variations it seeks, with the exception of the removal of the annualised salaries clause, fall away.
[3] As part of the 2012 Review, interested parties were directed to file submissions in either support of or opposition to the variation. Submissions were received from the applicant, Australian Business Industrial (ABI), the Australian Federation of Employers and Industries (the AFEI), the Australian Industry Group (the AiG) and a collection of law firms, consisting of Allens Linklaters, Allen and Overy, Arnold Block Liebler, Ashurst - Australia, Baker and McKenzie, Clayton Utz, Corrs Chambers Westgarth, Davies Collison Cave, DibbsBarker, Herbert Smith Freehills, Gilbert and Tobin, Hall and Wilcox, Herbert Geer, King and Wood Mallesons, Landers and Rogers, Maddocks, Middletons, Minter Ellison, Norton Rose Australia, Piper Alderman and Russell Kennedy (the Law Firms).
[4] Hearings for this matter were conducted in Melbourne with parties appearing by video link from Sydney. Mr J Nucifora appeared for the ASU, Mr N Ruskin and Ms K Sweatman appeared for the Law Firms, Mr A Doyle appeared for the AFEI and Ms G Vaccaro appeared for the AiG.
CLAUSE 3.1
[5] Clause 3.1 of the Award defines terms used throughout the Award
[6] The ASU seeks to insert the following definition into clause 3.1:
“Lawyer - means a person admitted to practice as a legal practitioner of the Supreme Court of any State or Territory in the Commonwealth of Australia.”
CLAUSE 14
[7] Clause 14 of the Award reads:
Minimum wages
| Classification | Per week |
Level 1—Legal clerical and administrative employee | 676.70 |
Level 2—Legal clerical and administrative employee | 706.10 |
Level 3—Legal clerical and administrative employee | 745.80 |
Level 4—Legal clerical and administrative employee | 783.10 |
Level 5—Legal clerical and administrative employee | 815.00 |
Level 5—Law graduate | 815.00 |
Level 6—Law clerk | 863.90 |
“14.1 Minimum Wages
| Classification | Per week |
Level 1—Legal clerical and administrative employee | 676.70 |
Level 2—Legal clerical and administrative employee | 706.10 |
Level 3—Legal clerical and administrative employee | 745.80 |
Level 4—Legal clerical and administrative employee | 783.10 |
Level 5—Legal clerical and administrative employee | 815.00 |
Level 5—Law graduate | 815.00 |
Level 6—Law clerk/first year lawyer | 863.90 |
Level 7 – second year Lawyer | 915.10 |
Level 8 –third year Lawyer | 1000.00 |
Level 9 – fourth year Lawyer | 1095.00 |
Level 10 – fifth year lawyer and above | 1195.30 |
14.2 Progression – lawyers
In remunerating a lawyer pursuant to clause 14.1, payment shall be made as follows:
(a) a lawyer shall commence initial employment as a lawyer on the Level 6 rate as specified until 30 June immediately following the lawyer’s admission; and
(b) unless interrupted, on and from 1 July immediately following the lawyer’s admission, the lawyer shall progress to the rate specified for a second year lawyer; and
(c) unless interrupted, on and from 1 July annually thereafter, a lawyer shall progress to the rate specified as being applicable to the service of the lawyer.
14.3 A lawyer’s service is interrupted if:
(a) Leave is taken for a continuous period greater than three calendar months in any single year ending on 30 June; or
(b) The lawyer is absent from practice as a lawyer for a continuous period greater than three calendar months in any single year ending on 30 June.
14.4 In the event a lawyer’s service is interrupted, the lawyer shall only progress to the next higher rate on and from 1 July next following completion of at least nine months service at the rate then applicable to the lawyer’s service.
14.5 For the purpose of this clause, a lawyer shall be deemed to have the years of s [sic] service completed as calculated in accordance with this award.”
14.6 Break in service
In the event a lawyer’s service is interrupted for a protracted period, during which time the lawyer has not practised in the private or public sectors as a barrister and/or solicitor or as a person who provides legal advice or services either upon their own account or for an employer, such lawyer may be employed upon remuneration payable at the rate one year below that which the lawyer would otherwise have been entitled to be paid pursuant to this award.”
CLAUSE 19
[9] The ASU also seeks to insert the following sub clauses into clause 19 of the Award:
“19.8 Court attire – lawyers
(a) An employer must provide sets of barrister’s apparel sufficient to meet the reasonable needs of a lawyer who is engaged in Court duties.
(b) Barrister’s apparel provided by an employer remains the property of the employer and must be repaired and regularly laundered at the expense of the employer and must be replaced by the employer as the need arises.
(c) An employer must not require a lawyer to purchase or own a set of barrister’s apparel.
19.9 Other expenses – lawyers
(a) In the event of a lawyer being a member of the Law Society of the relevant state, the employer shall meet the full cost of such membership.
(b) The employer shall meet the full cost of professional indemnity insurance of a lawyer as required pursuant to the provisions of [relevant state legislation];
(c) The employer shall meet the full cost of a practicing certificate of a lawyer as required.”
CLAUSE 30
[10] The current ASU application seeks to delete clause 30 of the Award. Clause 30 reads:
30.1 Annual salary instead of award provisions
a) An employer may pay an employee an annual salary in satisfaction of any or all of the following provisions of the award:
i. Clause 14 - Minimum wages;
ii. Clause 19 - Allowances;
iii. Clause 34 - Overtime and penalty rates; and
iv. Clause 35.3 - Annual leave loading.
b) Where an annual salary is paid the employer must advise the employee in writing of the annual salary that is payable and which of the provisions of this award will be satisfied by payment of the annual salary.
30.2 Annual salary not to disadvantage employees
a) The annual salary must be no less than the amount the employee would have received under this award for the work performed over the year for which the salary is paid (or if the employment ceases earlier over such lesser period as has been worked).
b) The annual salary of the employee must be reviewed by the employer at least annually to ensure that the compensation is appropriate having regard to the award provisions which are satisfied by the payment of the annual salary.
30.3 Base rate of pay for employees on annual salary arrangements
For the purposes of the NES, the base rate of pay of an employee receiving an annual salary under this clause comprises the portion of the annual salary equivalent to the relevant rate of pay in clause14—Minimum wages and excludes any incentive-based payments, bonuses, loadings, monetary allowances, overtime and penalties.
PROFESSIONAL DEVELOPMENT OF LAWYERS
[11] The new clause proposed by the ASU reads as follows:
“39. Professional development – lawyers
39.1 An employer may grant permission to a lawyer to attend a conference, seminar, short term study course or similar which will assist the lawyer to develop professional expertise and/or keep informed of professional and legal developments and areas of interest of relevance to the practice of the employer.
39.2 Where permission has been granted by the employer for the lawyer to attend the conference, seminar, short term study course or similar, the employer shall continue the payment of salary to the lawyer or make such other arrangements as may be mutually agreed and shall pay or reimburse the lawyer’s registration costs and in addition shall meet such reasonable costs as may be mutually agreed between the lawyer and the employer. Provided that in all cases where permission to attend has been granted the lawyer shall suffer no loss of continuity of service as a result of such attendance.”
SCHEDULE B
[12] The ASU also seek to insert the following clauses into schedule B of the Award:
“B.8 Level 7—Second year lawyer
B.8.1 General
(a) Work is under limited guidance in line with a broad plan, budget or strategy. Responsibility and defined accountability for the management and output of the work of others and for a defined function or functions may be involved.
(b) Competency at this level involves the self-directed development of knowledge with substantial depth across a number of areas and/or mastery of a specified area with a range of skills. Application is to major functions in either varied or highly specific contexts.
(c) Competencies are normally used independently and are substantially non-routine. Significant judgment is required in planning, design, technical or supervisory functions related to products, services, operations or processes of the firm.
(d) Specific clerical and administrative competencies do not automatically apply at this level or above. Legal competencies continue to apply at least in conjunction with the clerical and administrative competencies.
(e) Employees will be graded at the level where the principal functions of their employment, as determined by the employer, require the exercise of skills at the level set out in the respective grade.
(f) An indicative training and vocational educational level for this level is Associate Diploma at TAFE or tertiary level (or equivalent).
B.8.2 Legal
The employee will be able to display a practical understanding and application of the structures, methods and procedures of the relevant State or Territory legal system.
B.9 Level 8 – Third year lawyer
B.10 Level 9 – Fourth year lawyer
B.11 Level 10 – Fifth year lawyer”
LEGISLATION
[13] 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).”
[14] Further provisions of the Fair Work Act (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
(c) the need to promote social inclusion through increased workforce participation; and
(d) the need to promote flexible modern work practices and the efficient and productive performance of work; and
(e) the principle of equal remuneration for work of equal or comparable value; and
(f) the likely impact of any exercise of modern award powers on business, including on productivity, employment costs and the regulatory burden; and
(g) the need to ensure a simple, easy to understand, stable and sustainable modern award system for Australia that avoids unnecessary overlap of modern awards; and
(h) the likely impact of any exercise of modern award powers on employment growth, inflation and the sustainability, performance and competitiveness of the national economy.
This is the modern awards objective.
...
138 Achieving the modern awards objective
A modern award may include terms that it is permitted to include, and must include terms that it is required to include, only to the extent necessary to achieve the modern awards objective and (to the extent applicable) the minimum wages objective.”
APPROACH OF
FAIR WORK AUSTRALIA
TO THE 2012 REVIEW
[15] In June 2012, the 2012 Review Full Bench 2 published a decision3 (June Decision) addressing the legislative provisions applicable to the 2012 Review and the scope of the 2012 Review. The Full Bench observed:
“[63] Under sub item 6(3) of Schedule 5, the Tribunal has a broad discretion to vary any of the modern awards in any way that it considers necessary to remedy any issues identified in the Review. However, sub item 6(4) provides that in making such a variation the Tribunal must take into account the modern award objective in s.134 of the FW Act, and, if varying modern award and minimum wages, the minimum wages objective in s.284.”
[16] The 2012 Review Full Bench also made comments about the scope of the 2012 Review and the circumstances in which a variation might be made when such a variation seeks to revisit matters that had been dealt with and determined under the Part 10A process:
“[85] Two points about the historical context are particularly relevant. The first is that awards made as a result of the award modernisation process are now deemed to be modern awards for the purposes of the FW Act (see Item 4 of Schedule 5 of the Transitional Provisions Act). Implicit in this is a legislative acceptance that the terms of the existing modern awards are consistent with the modern awards objective. The second point to observe is that the considerations specified in the legislative test applied by the Tribunal in the Part 10A process is, in a number of important respects, identical or similar to the modern awards objective which now appears in s.136.
...
[86] Although the Tribunal is not, as a non-judicial body, bound by principles of stare decisis, as a matter of policy and sound administration it has generally followed previous Full Bench decisions relating to the issue to be determined, in the absence of cogent reasons for not doing so. In another context three members of the High Court observed in Nguyen v Nguyen:
“When a court of appeal holds itself free to depart from an earlier decision it should do so cautiously and only when compelled to the conclusion that the earlier decision is wrong. The occasion upon which the departure from previous authority is warranted are infrequent and exceptional and pose no real threat to the doctrine of precedent and the predictability of the law: see Queensland v The Commonwealth (1977) 139 CLR 585 per Aickin J at 620 et seq.”
[87] While the Tribunal is not a court, the public interest considerations underlying these observations have been applied with similar, if not equal, force to appeal proceedings in the Tribunal. In Re Dalrymple Bay Coat Terminal Pty Ltd a Full Bench summarised the position in relation to single members sitting at first instance as follows:
“There is not a developed system of stare decisis in this jurisdiction. However it is clearly desirable for members of the Commission sitting alone to adhere to Full Bench decisions which are relevant to the matter being determined. Such a policy aids consistent decision making which in turn provides the parties to Commission proceedings with greater certainty.”
[88] These policy considerations tell strongly against the proposition that the Review constitutes a “fresh assessment” unencumbered by previous Tribunal authority.
[89] In circumstances where a party seeks a variation to a modern award in the Review and the substance of the variation sought has already been dealt with by the Tribunal in the Part 10A process, the applicant will have to show that there are cogent reasons for departing from the previous Full Bench decision, such as a significant change in circumstances, which warrant a different outcome.”
[References omitted]
[17] Where, on the making of a modern award, an evidentiary case has been presented, direct submissions have been made and the Australian Industrial Relations Commission or Fair Work Australia has made a determination about the relevant award provision on the basis of that material, cogent reasons will need to be advanced for departing from the award provision in the 2012 Review.
[18] On the issue of the application of s.138 of the Act to the 2012 Review, the 2012 Review Full Bench stated:
“[33] We are satisfied that s.138 is relevant to the Review. The section deals with the content of modern awards and for the reasons given at paragraph [25] of our decision it is a factor to be considered in any variation to a modern award arising from the Review. We also accept that the observations of Tracey J in SDAEA v NRA (No.2), as to the distinction between that which is “necessary” and that which is merely desirable, albeit in a different context, are apposite to any consideration of s.138.
[34] While s.138 is relevant to the Review there is still the question of the extent of its impact and the circumstances in which it will have on an application to a variation determination. The supplementary submissions revealed a diversity of views about these issues. We are not persuaded that these issues have been the subject of sufficient debate at this stage. The precise impact of s.138 is a question best considered in the context of a particular application. We agree with the RCAV’s supplementary submission that “the nature of the evidence and the facts as found arising from that evidence will condition the exercise of power and the ultimate outcome required to be determined by the review.”
[19] It is apparent that those seeking a variation to a modern award in the 2012 Review must demonstrate that the award is not achieving the modern awards objective, or that it is not operating effectively, without anomalies or technical problems arising from the Part 10A award modernisation process. Further, it follows, that the variation sought must address one or both of these defects, or that there are other cogent reasons for making the variation as part of the 2012 Review.
THE HISTORY OF MAKING THE AWARD
[20] It is necessary to relate how the Award, which was dealt with in Stage 4 of the Part 10A award modernisation process, came into existence.
[21] In a statement issued by the Australian Industrial Relations Commission in September 2009, the Full Bench stated:
“[141] We publish an exposure draft of the Legal Services Award 2010. The award will cover employees up to and including articled clerks/graduates at law. We have not included classifications for lawyers admitted to practice [sic]. There is some award coverage for lawyers in the private sector but this is limited and does not appear, in our view, to satisfy the criteria necessary for the making of a modern award. It may be necessary for interested persons to give consideration to what if any transitional provisions may be needed for employees who are currently covered by an industrial instrument but will not be covered by the modern award.” 4
[22] In the Award Modernisation Decision the Full Bench said:
“[128] There were other ancillary matters to which we have also given our attention. Turning to the first matter, we have decided to include law graduates but not solicitors admitted to practice [sic]. Consistent with our earlier views we have not found that there is widespread coverage of solicitors but there is of law graduates. Those seeking coverage appear to be concerned about wage rates and hours of work. Wage rates will be influenced by our decision in relation to coverage of law graduates and the NES deals with maximum weekly hours of work and provides for additional hours provided they are reasonable.
[129] As to the classification structure, we have simplified the structure in the exposure draft and removed the previously proposed highest rate. However we have retained the position of law clerk as we see that it may have some work to do in the manner described in the classification definitions. The extent of its use will be determined by how the employer seeks to manage the work. We have not made any other changes in the classification structure or minimum wages.
[130] Some submissions sought greater flexibility in working patterns for clerical and administrative employees and law graduates. Submissions were put that there should be an exemption rate for clerical and administrative employees and that the approach adopted in relation to ordinary hours of work in the Professional Employees Award should be adopted in this award. Following our decision to vary the Clerks Modern Award we have decided to insert an annualised salaries clause for both clerical and administrative employees and law graduates.
[131] Finally, we turn to hours of work. We have again examined the various relevant awards and have decided to retain the terms of the exposure draft.” 5
SCOPE OF THE MODERN AWARDS REVIEW 2012
[23] Mr N Ruskin, asked that I determine as a threshold issue whether the ASU’s application, insofar as it seeks to extend the classifications within the Award, fits within the parameters of the Modern Awards Review 2012.
[24] I acceded to that request and to that end sought an indication of the nature of the evidentiary case the ASU intended to put.
[25] In purported compliance with my directions, the ASU filed a brief outline of submissions on 18 October 2012, which did not indicate the nature of the case it proposed to put.
[26] On 19 October, I conducted a hearing and directed the ASU to file all the evidence upon which it intended to rely for its substantive case by noon on 24 October 2012.
[27] At the hearing of the merits on 25 October 2012, Mr Nucifora submitted that employee lawyers had been covered by awards in certain states prior to the introduction of the modern awards in 2010 and that excluding this classification of employee from modern award coverage results in a lack of a safety net, which is contrary to the objects of the Fair Work Act.
[28] The written submissions filed by the ASU specifically highlight ‘unreasonable work hours’ as the major reason to extend the Award’s coverage:
“32. The major reason for the inclusion of employed lawyers in the relevant modern industry award is the issue of unreasonable hours of work in the profession. Without award coverage employed lawyers have no right of access to a dispute settling mechanism about the reasonableness of the hours they are expected to work.” 6
[29] It was further submitted that the question of the existence of cogent reasons in this matter “relate[s] to whether the AIRC gave proper consideration to certain issues which are fundamental such as award coverage.” 7
[30] On this basis, Mr Nucifora tendered the “evidence” filed with Fair Work Australia on 24 October 2012. This evidence consisted of a bundle of submissions made by the ASU and other bodies during the initial award modernisation process in 2008 and 2009, and two witness statements. The first witness statement is that of Ms C Kazakoff, a former industrial officer, currently employed as a solicitor. The second is that of Mr K Harvey, a former national industrial officer for the ASU.
[31] Ms Kazakoff’s witness statement largely espoused her views on the need for award coverage for employee solicitors. Mr Harvey’s witness statement detailed the award modernisation process and his involvement in that process as a national industrial officer with the ASU, as well as his views on the need for award coverage for employee solicitors.
[32] AiG, AFEI and the Law Firms each submitted that the evidence led by Mr Nucifora did not justify the granting of the ASU’s application.
[33] In particular, Mr Ruskin, the representative for the Law Firms, responded to the bundle of submissions tendered by Mr Nucifora as follows:
“...I reject the notion that cogent reasons for departing from Full Bench decisions, which is the test made by a Full Bench of this tribunal, can include a member of the tribunal re-examining the same evidence in 2009 and coming to a different conclusion, or coming to the conclusion that there was insufficient evidence.” 8
[34] These sentiments were echoed in submissions made by both the AiG and AFEI.
APPLICATION BY ASU TO VARY CLAUSE 30 - ANNUALISED SALARY
[35] A second element to the ASU application was to remove clause 30 of the Award regarding annualised salaries. This variation was opposed by the AiG, AFEI and the Law Firms.
[36] The ASU submitted that the flexibility provisions required to be contained within each modern award and guarantees of annual earnings made under Part 2-9, Division 3 of the Act, can both be utilised to fulfil the function of the annualised salary clause while maintaining a safety net for employees:
“48. First, all modern awards must include a flexibility term enabling an employee and his or her employer to agree on an arrangement (an individual flexibility arrangement) varying the effect of the award in relation to the employee and the employer, in order to meet the genuine needs of the employee and employer. The Act requires that any individual flexibility arrangement is genuinely agreed to by the employer and the employee.
...
51. The Act enables an undertaking in writing to be given to a high income employee to pay the employee an amount of earnings in relation to the performance of work during a period of 12 months or more. An undertaking given by an employer to an employee is a ‘guarantee of annual earnings’ if it meets a number of specific criteria. The annual rate of the guarantee of annual earnings must exceed the high income threshold, currently set at $123 300 per annum and the employee must agree to accept both the undertaking and the amount of the undertaking.
...
54. While the Act permits modern awards to include annualised salary provisions, the ASU submits that the inclusion of a term that enables a statutory arrangement to be made without the consent of the employee is inconsistent with the clear legislative intent that the safety net can only be varied by agreement.
...
61. The ASU submits that the Annualised salary clause is unnecessary as flexible working arrangements can be achieved by employers and employees through the Award Flexibility provision in the award. The annualised salary clause allows an employer to avoid the standard safeguards in the Award flexibility clause and otherwise discriminate against all employees covered by the award when compared with employees covered by other modern awards quite often working in the same industry or with the same employer.” 9
[37] In addition to these written submissions, the ASU tendered a table comparing the effect of Clause 7 - Award flexibility with Clause 20 - Annualised Salary.
[38] In relation to this aspect of the ASU’s application, the Law Firms, AFEI and the AiG opposed this variation, again on the basis that the ASU had not made out a case for deleting the clause.
[39] At the conclusion of the ASU’s evidentiary case Mr Ruskin made a no case submission. I indicated that I would not put him to his election to not call evidence should his no case submission fail
SHOULD THE VARIATION BE MADE?
[40] At the conclusion of the hearing on 25 October 2012, I rejected the ASU’s application and said I would provide my reasons at a later time.
[41] Aside from considering whether an award meets the modern awards objective, as required by the Act, it is quite clear that I must also be satisfied that there are cogent reasons for departing from relevant previous Full Bench decisions, such as the Award is not operating effectively or it contains anomalies.
[42] The submissions of the ASU do not satisfy me that cogent reasons exist in this instance. At hearing on 25 October 2012, the ASU tendered submissions that had previously been made by itself and others in the Part 10A Award Modernisation process, in which the ASU sought the same classification structure that it now seeks.
[43] It is apparent that the Full Bench considered these submissions in its decision creating the Award. The ASU has provided me with nothing new.
[44] Further to the previous submissions admitted as evidence, the ASU produced witness statements from an employee lawyer and a former industrial officer of the ASU in addition to these submissions.
[45] The witness statements are not evidence; they are, in reality, submissions of the deponents.
[46] I am not satisfied that cogent reasons exist for departing from the previous Full Bench decision. The ASU has not made out its case that the coverage of the Award should extend to lawyers.
[47] In relation to the second aspect of the ASU’s application regarding the removal of Clause 30 - Annualised salary, I adopt my reasons for decision in relation to the Contract Call Centres Award 2010 10, where I rejected a similar application for the removal of an annualised salaries clause that has a similar genesis to that in this award.
[48] Neither the differences in wording between the clauses in the two awards, nor the variation between the matters against which annualised salaries can be offset, warrant a deviation from my conclusion in the Contract Call Centres Award Decision.
[49] The inclusion of an annualised salaries clause in the Legal Services Award 2010 is not inconsistent with the modern awards objective and I do not believe the deletion of this clause will assist in the better achievement of that objective.
[50] The ASU’s application to vary the Award is dismissed.
SENIOR DEPUTY PRESIDENT
Appearances:
Mr J. Nucifora appeared for the ASU.
Mr N. Ruskin and Ms K. Sweatman, DLA Piper, solicitors for the Law Firms.
Mr S. Forster appeared for AFEI
Ms G. Vaccaro appeared for AiG.
Hearing details:
2012
Melbourne
25 June, 17 July, 19 October and 25 October
Final written submissions:
2012
10 October
1 MA000116
2 The award modernisation Full Bench was reconstituted to undertake the 2012 Review.
3 [2012] FWAFB 5600
4 [2009] AIRCFB 865
5 [2009] AIRCFB 945
6 Paragraph 32 of the ASU’s submissions
7 Paragraph 36 of ASU’s submissions
8 Transcript of hearing 25 October 2012, PN744
9 Paragraphs 48, 51 and 54 of the ASU’s submissions
10 [2012] FWA 9025
Printed by authority of the Commonwealth Government Printer
<Price code C, MA000116, PR531182>
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