"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU)
[2011] FWA 7752
•8 NOVEMBER 2011
[2011] FWA 7752 |
|
DECISION |
Fair Work Act 2009
s.160 - Application to vary a modern award to remove ambiguity or uncertainty or correct error
"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU)
(AM2011/42)
Sugar industry | |
COMMISSIONER SPENCER | BRISBANE, 8 NOVEMBER 2011 |
Application to vary Sugar Industry Award 2010 (MA000087).
Introduction
[1] This determination arises from an application made by the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) (the Applicant) to vary the Sugar Industry Award 2010 (the Award) 1in relation to wage rates for an unapprenticed junior of 18 years of age.
[2] The application is made under s.160 of the Fair Work Act 2009 (Fair Work Act) to remove an ambiguity or uncertainty or to correct an error in the modern award. The variation sought was to delete the wording contained in the table of clause 40.4 Apprentices found in stage one apprentices who have completed Year 11, from ‘80% of the unapprenticed junior rate under this award for an 18 year old’ to ‘54.64% of the C13 rate’, in the Sugar Industry Award 2010 (the Award).
[3] Whilst the provision of an unapprenticed junior rate for an 18 year old is also contained in the Manufacturing and Associated Industries and Occupations Award 2010. The AMWU proposes replacing the current provision with ‘54.64% of the C13 rate’ which in monetary terms would be close to the current amount (now - $331.34, with new percentage - $331.43). The AMWU considers the application as sought is not contentious.
[4] In addition the variation as sought was consented to by the Australian Sugar Milling Association, Queensland Union of Employers (ASMA). The parties agreed that the matter could be determined on the papers. Submissions and evidence were filed.
Relevant legislation
[5] 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.
[6] 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).
[7] 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
....
Variation sought
[8] The variation sought by the Applicant was as follows:
40.4 Apprentices
The minimum wages for apprentices are to be calculated on the following basis:
Relevant rate for an apprentice at the time of entering into a training agreement | ||||
Stage of apprenticeship | Completed | Completed | Completed | Adult |
Stage 1 | 42% of the C10 trades rate | 80% of the unapprenticed junior rate under this award for an 18 year old (changed to: 54.64% of the C13 rate) | The relevant rate applicable to a trainee commencing after year 12 under National Training Wage Skill Level A. | National Training Wage Traineeship Skill Level B exit rate. |
Stage 2 | 55% of the C10 trades rate | 55% of the C10 trades rate | The relevant rate applicable to a trainee commencing at year 12 plus one year under National Training Wage Skill Level A. | C14 rate |
Stage 3 | 75% of the C10 trades rate | 75% of the C10 trades rate | 75% of the C10 rate | C13 rate |
Stage 4 | 88% of the C10 trades rate | 88% of the C10 trades rate | C12 rate | C12 rate |
[9] These variations have been consented to by the ASMA.
Grounds for the variation
[10] The AMWU relies on the grounds contained in the Application to vary the Sugar Industry Award 2010. As stated in the application the first grounds that the AMWU relies on are those contained in section 160 of the Fair Work Act 2009 (‘the Act’) that an ambiguity exists. In relation to the second ground, the AMWU submits that the Modern Sugar Award 2010 achieves those objectives contained in s.134 with the clear exception of s.134(e) and possibly (g) in respect of Stage One apprentices who completed Year 11.
[11] The Applicant made reference to 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 has been referenced in other matters before the Tribunal seeking variations to Modern Awards:
[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.
....
[12] The AMWU submitted that due to the lack of a wage provision for unapprenticed juniors aged 18 years or over, the wages under clause 40.4 for a Stage 1 apprentice who has completed Year 11 could be understood to be based on the adult minimum rate which would mean this Stage 1 apprentice would earn more than an apprentice at later stages of their apprenticeship - clearly this was an unintended consequence within the Modern Sugar Award.
[13] The Applicant further submitted the error was included in drafts of the modern award during the award modernisation process for instance it was present, in the Applicant AMWU’s draft of 6 March 2009 at clause 24.5 on page 25 and was not identified by the parties. It was also submitted it is undesirable to have reference outside the Modern Sugar Award to determine this wage rate. This is supported by Vice President Lawler’s decision of 8 December 2010 3 where His Honour stated at paragraph 9: ‘I consider that [the]...substantive provision should be made for apprentices within the Award itself’.
[14] The AMWU submitted in an email of 11 August 2011 that the Australian Workers’ Union (AWU) supported this application however no email was produced to FWA, but no objections were received.
[15] The ASMA provided submissions in support of the AMWU application that referred to the ambiguity and the need for the uncertainty to be rectified.
Conclusion
[16] It was submitted that the provision currently contained in the Modern Sugar Award which refers to 80% of the unapprenticed junior rate was contained in many pre-reform awards in the metal industry. In this regard reference is made to the Higher Education Industry-General Staff-Award 2010 4in which the Australian Higher Education Industrial Association made an application to vary the Higher Education Industry Modern Award to insert apprentice provisions5.This application was supported by the AMWU in principle but the difference between the parties, related to the exact terms to be included in the apprentice clause. The AMWU’s primary submission was to incorporate by reference the terms for apprentices in the other relevant modern awards such as manufacturing and hospitality.
[17] Vice President Lawler determined that the rates should be included in the Modern Higher Education Award and not incorporated by reference to other Awards. The determination was drafted on the basis of finding classification levels in the Modern Higher Education Award which would provide commensurate rates. In the final decision, VP Lawler’s approach was to select a classification in the award that would yield a similar monetary outcome to like awards that reference a junior rate, as is applicable in the current matter.
[18] The Applicant sought a similar approach to be adopted here. As indicated in the AMWU’s application ‘54.64% of the C13 rate’ produces a similar figure to 80% of the unapprenticed junior rate in the Modern Manufacturing Award i.e. - $331.34 and $331.43 respectively.
[19] For the aforementioned reasons, the Application is granted to avoid further ambiguity or uncertainty.
[20] I Order accordingly. A separate variation will issue.
COMMISSIONER
1 MA000087
2 PR917548 - Tenix Defence Pty Limited - re variation of agreement, ambiguity or uncertainty - see paragraphs 28 to 31
3 [2010] FWA 9449 - Australian Higher Education Industrial Association
4 MA000007 - Higher Education Industry-General Staff-Award 2010 - re inserting new clause for apprentices
5 AM2010/129
Printed by authority of the Commonwealth Government Printer
<Price code C, MA000087 PR516584>
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