BPL Adelaide Pty Ltd - [2013] FWC 6174

[2013] FWC 6174

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

BPL Adelaide Pty Ltd
(AM2012/331)

Poultry Processing Award 2010
[MA000074]

Poultry processing
COMMISSIONER HAMPTON	ADELAIDE, 30 AUGUST 2013

Modern Awards Review 2012 - matters allocated to single member - rest breaks provision - whether ambiguous and uncertain - whether award operating effectively, without anomalies or technical problems arising from the Part 10A award modernisation process - operation of award provision problematic and leading to anomalies - award to be varied - whether proposed provision is appropriate - proposal consistent with the apparent intent of clause and with modern awards objective - determination issued varying the award.

1. Background

[1] This decision deals with an application to vary the Poultry Processing Award 2010 made by BPL Adelaide Pty Ltd (BPL). This, along with many other applications, have been made in the context of the review of modern awards being conducted by the Fair Work Commission in accordance with the Fair Work (Transitional Provisions and Consequential Amendments)Act 2009 (the Transitional Provisions Act) (the Transitional Review).

[2] The application concerns a single provision of the award; namely, clause 25.2 Rest Breaks. The context for this provision is set by clause 25 Breaks, which presently reads as follows:

“25. Breaks

25.1 Meal breaks

An employee is entitled to an unpaid meal break on each day of work of not less than 30 minutes or more than 60 minutes to be taken not later than six hours after the commencement of work.

25.2 Rest breaks

An employee is entitled to rest breaks of 10 minutes each in the forenoon and in the afternoon, without deduction of pay.

25.3 Crib time

Where shiftwork comprises consecutive shifts of at least eight hours each per day, an employee working shiftwork is entitled to a paid 20 minute crib time instead of any other meal break provided in this award.”

[3] BPL contends that the provision is ambiguous and such that it produces results which are uncertain and potentially absurd. It has proposed a revised clause that it contends is clear, appropriate and consistent with the outcomes contemplated by the Transitional Review.

[4] The proposed provision was amended on one limited aspect during the course of proceedings.

[5] The South Australian Employers Chamber of Commerce and Industry, trading as Business SA (BSA) and Australian Business Industrial (ABI) support the proposed variation.

[6] The National Union of Workers (NUW), “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) and The Australian Workers’ Union (AWU) have all indicated that they do not oppose the variation of the award to insert the amended provision.

[7] The amended provision is however opposed by the Australian Federation of Employers and Industry (AFEI) and The Australian Industry Group (AiG) on the basis of certain jurisdictional…

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 6174
Decision Date: 30 AUGUST 2013

CaseChat Overview and Summary

In the case of BPL Adelaide Pty Ltd, the matter was brought before the Fair Work Commission. The dispute involved the interpretation and application of a rest break provision within an award, specifically whether the provision was ambiguous and uncertain. The case also examined whether the award was operating effectively, without anomalies or technical issues arising from the Part 10A award modernisation process. The Commission was tasked with determining if the rest break provision should be varied and if the proposed variation was appropriate.

The legal issues the court had to address were the ambiguity and certainty of the rest break provision in the award. The court also had to consider whether the award was functioning effectively and if there were any anomalies or technical problems that resulted from the modernisation process. Furthermore, the court needed to assess whether the proposed variation to the rest break provision was consistent with the apparent intent of the clause and aligned with the objectives of modern awards.

The court found that the rest break provision was indeed ambiguous and uncertain, leading to operational issues and anomalies. The award's operation was not as intended, and there were technical problems arising from the modernisation process. The proposed variation to the rest break provision was deemed appropriate, as it aligned with the apparent intent of the clause and the objectives of modern awards. Consequently, the Fair Work Commission issued a determination varying the award to address the identified issues.

The final orders included the variation of the rest break provision in the award to resolve the ambiguity and uncertainty, ensuring the award operates effectively without anomalies or technical problems. The new provision was designed to align with the apparent intent of the clause and the objectives of modern awards, thereby improving the overall operation of the award.

Orders