Australian Sugar Milling Association, Queensland, Union of Employers
[2011] FWA 7755
•8 NOVEMBER 2011
[2011] FWA 7755 |
|
DECISION |
Fair Work Act 2009
s.160 - Application to vary a modern award to remove ambiguity or uncertainty or correct error
Australian Sugar Milling Association, Queensland, Union of Employers
(AM2011/46)
Sugar industry | |
COMMISSIONER SPENCER | BRISBANE, 8 NOVEMBER 2011 |
Application to vary Modern Sugar Industry Award 2010 (MA000087).
Introduction
[1] This determination arises from an application made by the Australian Sugar Milling Association, Queensland, Union of Employers (ASMA) (the Applicant) pursuant to s160 of the Fair Work Act 2009 (the Act) to vary the Sugar Industry Award 2010 (the Award) 1in relation to ‘Definitions’ and ‘Coverage’ of the Award.
[2] The application made on 2 September 2011 under s.160 of the Fair Work Act 2009 (the Act) to remove an ambiguity or uncertainty or to correct an error in the Modern Award, was later amended on 9 September 2011. The variations sought to amend the ‘Definitions’ in clauses 3.1 and the ‘Coverage’ in 4.2(b) of the Modern Sugar Industry Award.
[3] The variations as sought were consented to by the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU). The parties agreed for the matter to be determined on the papers. Submissions and evidence were filed in response to the Directions.
Variations sought
[4] The first variation sought an amendment to the definition of ‘milling sector’ in clause 3.1. The current definition of ‘milling sector’ is:
milling sector means the operations of transporting and processing cane including all rail construction, maintenance and operation; factory operation; sugar cane by-product manufacture and processing at a sugar mill; and packaging and storage operations performed at a sugar mill
[5] The ASMA sought to change the definition of ‘milling sector’ by inserting the words ‘maintenance and’ between the words ‘factory’ and ‘operation’ where they appear in sub-clause 3.1. The amended definition would read as follows:
milling sector means the operations of transporting and processing cane including all rail construction, maintenance and operation; factory maintenance and operation; sugar cane by-product manufacture and processing at a sugar mill; and packaging and storage operations performed at a sugar mill
[6] The second variation is to the definition of ‘sugar industry’ in clause 4.2(b). The current part of the definition of ‘sugar industry’ reads as follows:
(b) sugar milling including the following operations of the sugar miller: cane railway construction, maintenance, repair and operation; factory operation; raw sugar refining at a sugar mill; by-product manufacture and processing at a sugar mill; and packaging operations performed at a sugar mill;
...
[7] The ASMA sought to change the definition by inserting the words and punctuation ‘maintenance, repair and’ between the words ‘factory’ and ‘operation’ where they appear in sub-clause 4.2(b) to read as follows:
(b) sugar milling including the following operations of the sugar miller: cane railway construction, maintenance, repair and operation; factory maintenance, repair and operation; raw sugar refining at a sugar mill; by-product manufacture and processing at a sugar mill; and packaging operations performed at a sugar mill;
...
Relevant legislation
[8] FWA has jurisdiction to vary a Modern Award pursuant to s.160 of the Act. That section is as follows:
160 Variation of modern award to remove ambiguity or uncertainty or correct error
(1) FWA may make a determination varying a modern award to remove an ambiguity or uncertainty or to correct an error.
(2) FWA may make the determination:
(a) on its own initiative; or
(b) on application by an employer, employee, organisation or outworker entity that is covered by the modern award.
[9] FWA must consider the Modern Award objectives as set out in s.157 when considering a variation to a Modern Award. That section is as follows:
157 FWA may vary etc. modern awards if necessary to achieve modern awards objective
(1) FWA may:
(a) make a determination varying a modern award, otherwise than to vary modern award minimum wages; or
...
if FWA is satisfied that making the determination or modern award outside the system of 4 yearly reviews of modern awards is necessary to achieve the modern awards objective.
...
(2) FWA may make a determination varying modern award minimum wages if FWA is satisfied that:
(a) the variation of modern award minimum wages is justified by work value reasons; and
(b) making the determination outside the system of annual wage reviews and the system of 4 yearly reviews of modern awards is necessary to achieve the modern awards objective.
Note: As FWA is varying modern award minimum wages, the minimum wages objective also applies (see section 284).
...
[10] FWA must also consider the Modern Awards objective as set out in s.134 when considering Modern Awards. This section is as follows:
s134 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
....
[11] FWA must also consider, who has standing to make an application as set out in s.158 when considering a variation to a Modern Award. That section is as follows:
158 Applications to vary, revoke or make modern award: (table)
1. This kind of application to vary, omit or include terms (other than outworker terms or coverage terms) in a modern award: May be made by: (a) an employer, employee or organisation that is covered by the modern award; or (b) an organisation that is entitled to represent the industrial interests of one or more employers or employees that are covered by the modern award. |
Jurisdiction of the Applicant
[12] This application has been made by ASMA under s.160 of the Act to remove an ambiguity or uncertainty or to correct an error. ASMA is a transitionally recognised organisation under the Fair Work (Registered Organisations) Act 2009.
[13] Section 160(2)(b) provides that FWA may make the determination on application by an employer, employee, organisation or outworker entity that is covered by the Modern Award.
[14] The Modern Sugar Award (like all Modern Awards) does not expressly cover registered organisations (see clause 4–Coverage) therefore ASMA may be precluded from bringing this application on the grounds that it is not ‘covered’ by the Modern Award.
[15] Section 143(3) deals with coverage provisions in Modern Awards and s143(5)(c) deals with how coverage is expressed:
Organisations
(3) A modern award may be expressed to cover one or more specified organisations, in relation to all or specified employees or employers that are covered by the award.
...
(5) For the purposes of subsections (2) to (4):
(a) employers may be specified by name or by inclusion in a specified class or specified classes; and
(b) employees must be specified by inclusion in a specified class or specified classes; and
(c) organisations must be specified by name; and
.....
[16] Whilst the Applicant does not meet the test in s.160(2)(b), the ASMA application is recognised as per s.160(2)(a), which allows FWA to act on it’s own initiative to make such an application under.
Grounds for the variation:
[17] The application has been sought to avoid a potential interpretation that the Modern Sugar Award has the same or overlapping coverage with another Modern Award and to correct errors and remove potential uncertainty as to the coverage of maintenance and repair at sugar milling factories where work is carried out by the sugar mill’s own employees.
[18] Further the application has been made to ensure the Modern Award is consistent with the coverage of the former State award - Sugar Milling Industry Award - 2005 [Qld] as well as to deliver the intention of clause 4.1 in the Modern Sugar Award.
[19] The Applicant’s submissions referenced the case of Tenix Defence Pty Limited 2, where a Full Bench of the AIRC decided that the Commission ‘must first identify an ambiguity or uncertainty’ before it can exercise the discretion to remove that ambiguity or uncertainty. This decision is referred to in other similar applications for variations before the Tribunal.
[28] Before the Commission exercises its discretion to vary an agreement pursuant to s.170MD(6)(a) it must first identify an ambiguity or uncertainty. It may then exercise the discretion to remove that ambiguity or uncertainty by varying the agreement.
[29] The first part of the process – identifying an ambiguity or uncertainty – involves an objective assessment of the words used in the provision under examination. The words used are construed having regard to their context, including where appropriate the relevant parts of a related award. As Munro J observed in Re Linfox CFMEU (CSR Timber) Enterprise Agreement 1997:
“The identification of whether or not a provision in an instrument can be said to contain an ambiguity requires a judgment to be made of whether, on its proper construction, the wording of the relevant provision is susceptible to more than one meaning. Essentially the task requires that the words used in the provision be construed in their context, including where appropriate the relevant parts of the ‘parent’ award with which a complimentary provision is to be read.”
[30] We agree that context is important. Section 170MD(6)(a) is not confined to the identification of a word or words of a clause which give rise to an ambiguity or uncertainty. A combination of clauses may have that effect.
[31] The Commission will generally err on the side of finding an ambiguity or uncertainty where there are rival contentions advanced and an arguable case is made out for more than one contention.
....
[20] The FWA Full Bench decision 3 “Australian Nursing Federation” handed down in November 2010, dealing with applications to remove an ambiguity or uncertainty, cited the above passages with approval.
[21] The ASMA submitted that ambiguities arise in clauses 3.1 and 4.2(b) which seem to imply that maintenance and repair of factories is excluded from the coverage. However, Part 8 of the Modern Award 4 includes non-trade classifications that are typical maintenance and repair classifications, such as dogperson, slinger, licensed scaffolder and backhoe operator. Some of these classifications would be exclusively employed in sugar mills on maintenance and repair.
[22] The Applicant further submitted that clauses 39.6 to 39.14 of the Modern Sugar Award covers engineering employees and match the C14 to C6 levels in the Modern Manufacturing Award, however the Manufacturing Award does not cover work in these callings by Sugar Mill’s employees. Accordingly without this variation, this work by Sugar Mill employees in C14 to C6 would not be covered by a Modern Award.
[23] The AMSA submitted that the Modern Sugar Award is an industry award but that in its current form does not apply to all work that is required in the industry, such as maintenance and repair occurring in sugar mills. No other Modern Award covers that specific work.
[24] The Applicant submitted that this uncertainty or ambiguity is unintended and as there is no other Award that would cover a sugar mill’s repair and maintenance employees, the uncertainty should be remedied.
[25] On 20 October 2011, the AMWU produced a letter to FWA advising they supported ASMA’s application.
Considerations
[26] ASMA’s submissions during the award modernisation process outlined the advantages of a single Modern Award covering the whole of the sugar process from growing the sugar cane on farms to transporting the product and loading the final product in bulk terminals. The range of work listed included maintenance and repair work. 5
[27] The ASMA also stated the granting of the application would satisfy the Modern Award’s objectives in s.134(1), including:
(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;
...
[28] In response to the applications by Silverback Properties Pty Ltd and Muscillo Holdings Pty Ltd 6 in relation to the Amusement, Events and Recreation Award 20107 the coverage provisions were amended in a similar way.
[29] That application concerned the omission of ‘zoos’ or ‘zoological gardens’ and related classifications from the Modern Award coverage and definitions. The Applicants argued that the operations of a zoo could be inferred by clause 4.2 but was not directly stated. Prior to the making of the Modern Award, Australia Zoo was covered by a NAPSA which was not included in the same group as those of similar tourist, recreational and amusement parks, and so was omitted from coverage. They stated that the omission was an oversight of which they were unaware during the award modernisation process, and thus, they made this application. They believed that the addition of the terms, sought would be consistent with the Modern Amusement Award. This variation then enabled them to cover the wide range of activities performed by their employees under one Modern Award. The application was granted to remove any potential ambiguity and any future doubt about the coverage and relevance of the classification structure in the industry. 8
Conclusion
[30] The application raises an issue of ambiguity and uncertainty. Similar variations have been made to remedy like situations giving rise to uncertainty. No opposition to the variation was recorded, and the AMWU provided their consent. Accordingly, the variations as sought in the applications are granted and the Sugar Industry Modern Award will be varied as sought. I Order accordingly. A separate variation will be issued.
COMMISSIONER
1 MA000087
2 Tenix Defence Pty Limited [PR917548] see paragraphs 28 - 31.
3 Australian Nursing Federation and others [2010] FWAFB 9290 - [26] considers Tenix Defence Pty Limited [PR917548].
4 Milling, Distillery, Refinery and Maintenance Sector.
5 Award Modernisation Full Bench decision of 20 June 2008, [2008] AIRCFB 550]].
6 Silverback Properties Pty Ltd and Muscillo Holdings Pty Ltd [AM2010/98] .
7 Amusement, Events and Recreation Award 2010 [MA000080].
8 Harrison C, Transcript of Hearing on 10 August 2010 by - Silverback Properties Pty Ltd and Muscillo Holdings Pty Ltd [AM2010/98] - PN 56, 63 and 64.
Printed by authority of the Commonwealth Government Printer
Price code C, MA000087 PR516587
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