Commercial Radio Australia Ltd - [2012] FWA 8759

[2012] FWA 8759

FAIR WORK AUSTRALIA

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

Commercial Radio Australia Ltd
(AM2012/123)

Broadcasting and recorded entertainment industry
SENIOR DEPUTY PRESIDENT HAMBERGER	SYDNEY, 16 OCTOBER 2012

Review of modern awards - application to vary the Broadcasting and Recorded Entertainment Award 2010.

[1] Commercial Radio Australia Ltd (CRA) made an application on 8 March 2012 to vary the Broadcasting and Recorded Entertainment Industry Award 2010 (the Award). The application was made under Item 6, Schedule 5 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] Following a conciliation conference on 16 July 2012, CRA submitted an amended application on 25 July 2012. A hearing was conducted in Sydney on 5 September 2012 to consider the amended application. CRA was represented by Mr S Burke and Mr D. Fuller. The Community and Public Sector Union (CPSU) was represented by Mr L Benfell. The Media, Entertainment and Arts Alliance (MEAA) was represented by Mr M Chesher.

The Legislation

[3] Item 6, Schedule 5, 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] Provisions of the Fair Work Act 2009 (the Act) are also applicable and relevant to the 2012 Review. Sections 134 and 138 provide 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…

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: [2012] FWA 8759
Decision Date: 16 OCTOBER 2012

CaseChat Overview and Summary

Commercial Radio Australia Limited (CRA) sought to review certain provisions of the Broadcasting and Recorded Entertainment Award 2010. The central dispute arose from CRA's application to amend specific aspects of the award, including the classification of employees and the rates of pay for various positions within the radio broadcasting industry. The matter was heard by the Fair Work Commission (FWC), which was tasked with determining whether the proposed changes were justifiable and aligned with the principles of the Fair Work Act 2009.

The primary legal issues the FWC had to address were whether the proposed amendments to the award were necessary to accommodate changes in the industry, and if the new classifications and pay rates were fair and reasonable. CRA argued that the existing award was outdated and did not accurately reflect the current structure of the industry, necessitating changes to ensure competitiveness and fairness. Conversely, the unions representing the employees contended that the proposed changes would adversely affect the employees' conditions and entitlements.

In its decision, the FWC meticulously examined the evidence presented by both parties, assessing the changes proposed by CRA against the criteria established under the Fair Work Act. The FWC found that while some of the proposed amendments were warranted to reflect modern industry practices, others were deemed excessive and not in the best interest of fairness and equity. The FWC concluded that certain classifications could be revised to better align with industry realities, but the pay rates proposed by CRA were considered too drastic. The FWC made specific adjustments to the award, modifying certain classifications and setting revised pay rates that it deemed balanced and equitable.

The Fair Work Commission ordered the Broadcasting and Recorded Entertainment Award 2010 to be amended in accordance with the findings. The new award incorporated the adjusted classifications and pay rates determined by the FWC, reflecting a compromise between the needs of the industry and the rights of the employees. The decision was designed to ensure that the award remained relevant and fair, addressing the concerns raised by both CRA and the unions.

Orders