Commercial Radio Australia Ltd
[2012] FWA 8759
•16 OCTOBER 2012
[2012] FWA 8759 |
|
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 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.’
FWA’s Approach to the 2012 Review
[5] In June 2012, the 2012 Review Full Bench (the Full Bench) handed down a decision 1 in relation to the 2012 Review. At paragraph 63 the Full Bench said:
‘[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.’
[6] The Bench also said that s.138 of the Act was relevant to the review. It rejected the view that the review is “a ‘fresh assessment’ unencumbered by previous Tribunal authority”. Rather, “cogent reasons will need to be shown for departing from the previous Full Bench decision.”
[7] In a subsequent decision, Watson VP stated:
‘[20] These statements provide guidance on the importance of recent considerations of the award provisions sought to be varied as part of the 2012 Review. Where an evidentiary case has been presented, direct submissions have been made and the Tribunal 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.’ 2
The Proposed Variations
[8] The first variation proposed by CRA is to change the reference in clause 14.2 (g) of the Award from ‘Announcer Level 2’ to ‘Announcer Class 2’. This change would be consistent with Schedule C - Radio Broadcasting, C1 Classifications of the Award which refers to ‘Announcer Class 2’. The proposed variation would remove an anomaly that currently exists in respect of the classification of ‘Announcers’ in the Award. The proposed variation is not opposed by either the CPSU or MEAA. I am satisfied that the Award should be varied as proposed.
[9] The second proposed variation relates to Clause 43.6 of the Award. This clause currently reads:
43.6 Call-back payment
‘In cases where an employee having completed their rostered duties and having departed from the employer's premises, and not being rostered for stand-by duty, is recalled for duty, they will be paid overtime at the rates in clause 40.1, from the time of leaving the place from which they are recalled, until the return, or to their home, whichever they may first proceed to, with a minimum payment of four hours’ work.’
[10] Clause 40.1 of the Award relevantly provides:
‘Overtime - Technical Staff
40.1 Technical staff are to be paid overtime at the following rates:
(a) Monday to Friday - time and a half for the first two hours and double time after that.
(b) Saturday - time and three quarters for the first two hours overtime and double time after that.
(c) Sunday - double time.
(d) Public holidays - double time and a half.’
[11] As is clear, Clause 40.1 of the Award sets out the applicable overtime rates that apply only to technical staff within the commercial radio industry. It does not set out the applicable overtime rates that apply to announcers within the industry. Those rates are set out in Clause 39.1.
[12] Clause 43 of the Award, which includes Clause 43.6, applies both to announcers and technical staff. The reference to Clause 40.1 (Overtime - Technical Staff) in Clause 43.6 (Call-Back Payment) is clearly anomalous in so far as Clause 43.6 also deals with the entitlement for call back payments for announcers.
[13] CRA is seeking that Clause 43.6 of the Award be varied to read:
‘Call-back payment
In cases where an employee having completed their rostered duties and having departed from the employer's premises, and not being rostered for stand-by duty, is recalled for duty, they will be paid overtime at the rates in clause 40.1 (Technical Staff) and clause 39.1 (Announcers), from the time of leaving the place from which they are recalled, until their return, or to their home, whichever they may first proceed to, with a minimum payment of four hours’ work.’ (Additional words underlined.)
[14] The CPSU (which covers announcers in the commercial radio industry) does not oppose the variation. I am satisfied that the Award should be varied as sought.
[15] The remaining three proposed variations all deal in effect with the same issue and I shall consider them together. They are designed to clarify the basis on which shift penalties should be paid. The three predecessor awards: the Commercial Radio -- Technical Staff Award 1998, the Commercial Radio -- Announcers’ Award 1998, and the Commercial Radio -- Journalists’ Award 1999 provided that when an employee was required to work a shift some of which fell outside the ‘normal’ span of hours he or she received the relevant loading for the entire shift. For example, the announcers’ award provided that an announcer carrying out work on a midnight to dawn shift would be paid an allowance of 15% for the entire shift. The modern award, on the other hand, refers to the payment of shift loadings ‘calculated hourly’. For example, the Award provides that an announcer required to work on a midnight to dawn shift must be paid an allowance of 15% of the relevant minimum wage ‘calculatedhourly’. The deletion of the reference to ‘the entire shift’ and the introduction of the term ‘calculated hourly’ makes it unclear whether an announcer working only part of a shift after midnight should be paid the loading only on that part of the shift or on the whole shift. Similar uncertainty applies to shift loadings for technical staff and journalists.
[16] CRA submitted that since the commencement of the Award, feedback from some members had been that the change in wording from ‘... for the entire shift’ to ‘... calculated hourly’ had created a degree of uncertainty and ambiguity regarding the calculation of shift penalties for technical staff, announcers, and journalists. CRA suggested two approaches: either restoring the original wording to refer to payment of the loading for the entire shift worked, or clarifying that the shift penalty would only be paid for each hour worked outside the normal span of hours. CRA submitted that their preferred approach was the latter.
[17] During the hearing CRA noted that during the award modernisation process none of the parties had made submissions about changing the basis for applying shift penalties. CRA submitted that nevertheless the AIRC had chosen to vary the predecessor provisions. While the AIRC had given no reasons for any change that did not justify restoring the provisions to the position under the predecessor awards. 3 The current provisions were however ambiguous and needed to be varied to clarify how they should be applied. Mr Burke conceded that most employers in the industry were continuing to pay the loading for the entire shift as that was ‘the safer approach’.4
[18] The CPSU made submissions about technical employees (for whom it has coverage). The CPSU agreed that the Award should be varied. However it submitted that this should be to clarify that the loading should be paid for the entire shift. The CPSU submitted that there was no indication that the AIRC Full Bench had intended to reduce the entitlement in comparison with the predecessor awards.
‘We say it is a simple mistake made by the drafters of the award and now is the correct time to fix that mistake. Obviously it should be fixed by going back to the predecessor award where it’s quite clear that the allowance is paid for the whole shift.’ 5
[19] The CPSU referred to the Manufacturing and Associated Industries and Occupations Award 2010, and the Electrical, Electronic and Communications Contracting Award 2010, which it submitted cover similar technical employees to those employed under the Award. Under those awards, the CPSU submitted that employees are paid the shift loading for the entire shift.
‘So it’s quite clear that other radio technical employees performing the same or similar work under other modern awards are paid for the whole shift and we say that’s almost the standard.’ 6
[20] The MEAA agreed that there was an ambiguity in the way that shift loadings should be applied. Mr Chesher referred to Clause 30 of the Award which deals with shift and weekend penalties for television broadcasting and noted that there was no effort to qualify the payment of a shift penalty to actual hours in that clause. It was plain on the language that the penalty is meant to apply for the entire period in which the shift is worked 7.
[21] I am satisfied that the current provisions are unclear and need to be amended. None of the parties during the award modernisation process made any submissions about the desirability of changing the way that shift loadings are applied. Moreover the AIRC made no reference either during the proceedings or in its published decision to changing the way that shift loadings are applied. Accordingly, I consider that the Award should be varied to make it clear that the arrangement that was in place under the predecessor awards continues to apply. The Award should therefore be varied as follows.
[22] Clause 41.4(b) of the Award should be varied so that it reads:
‘An announcer and broadcaster/journalist required to work on a midnight to dawn shift must be paid an allowance of 15% of the relevant minimum hourly wage for the entire shift worked.’
[23] Clauses 42.1 (d) (i) and 42.1 (d) (ii) should be varied so that they read:
‘(i) A technical employee who works on a shift, any part of which falls between the hours of 6:00pm and 7:00am, will be paid an allowance of 15% of the relevant minimum hourly wage for the entire shift worked.
(ii) A technical employee required to work ordinary hours continuously for a period exceeding four weeks on a shift falling wholly within the hours of 6:00pm and 7:00 am must be paid an allowance of 30% of the relevant minimum hourly wage for each entire shift worked.’
[24] Clause 48 should be varied so that it reads:
‘Any employee who is rostered to perform and performs ordinary duty on a shift:
(a) any part of which falls between the times of 6:00 am and 7:00 am or is rostered to perform and performs ordinary duty on a shift that concludes between the hours of 6:00 pm and 8:30 pm will be paid an additional 10% of the appropriate minimum wage calculated on an hourly basis for the entire shift worked; and
(b) any part of which falls between the hours of 8.30 pm and 6.00 am will be paid an additional 17.5% of the appropriate minimum wage calculated on an hourly basis for the entire shift worked.’
SENIOR DEPUTY PRESIDENT
Appearances:
S Burke and D Fuller, for Commercial RadioAustralia Limited
L Benfell and L Lind for the Community and Public Sector Union
M Chesher for the Media, Entertainment and Arts Alliance
Hearing details:
2012
SYDNEY
5 September
1 [2012] FWAFB 5600
2 [2012] FWA 7212
3 PN103
4 PN125
5 PN140
6 PN161
7 PN181
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