Garrison Cattle Feeders Pty Ltd

[2010] FWA 9406

[2010] FWA 9406

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.158 - Application to vary or revoke a modern award

Garrison Cattle Feeders Pty Ltd
(AM2010/211)

Agricultural industry
COMMISSIONER LEWIN	MELBOURNE, 13 DECEMBER 2010

Application to vary a Modern Award – to correct an error – nature of error – formatting.

[1] This Decision concerns an application by Garrison Cattle Feeders Pty. Ltd. to vary the Pastoral Award 2010 (the Award). The substantive effect sought by the application is to provide that the terms of the Award in relation to an employee’s entitlement to payment for overtime worked or time off in lieu will require that where an employee, whose employment is classified within the Field and Livestock Hand classification structure of Part 4 of the Award, works in excess of the ordinary hours prescribed for such work, the employee will not be entitled to payment for overtime or equivalent time off, “unless the employee makes a claim to the employer or their authorised representative within two weeks after the overtime is alleged to have been performed, or by the next date of payment of the employees’ wages, whichever is later”.

[2] The application was lodged on 27 August 2010 on Form F46—Application to Vary a Modern Award. That form is the prescribed form for an application made under ss.157 and/or 160 of the Fair Work Act 2009 (the Act). Those provisions of the Act are set out below respectively:

“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

(b) make a modern award; or

(c) make a determination revoking a modern award;

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.

Note 1: FWA must be constituted by a Full Bench to make a modern award (see subsection 616(1)).

Note 2: Special criteria apply to changing coverage of modern awards or revoking modern awards (see sections 163 and 164).

Note 3: If FWA is setting modern award minimum wages, the minimum wages objective also applies (see section 284).

(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).

(3) FWA may make a determination or modern award under this section:

(a) on its own initiative; or

(b) on application under section 158.

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.”

[3] Fair Work Australia posted the application on the Award Modernisation Website on 23 August 2010 and Directions were subsequently published on the website inviting interested parties to file submissions by the close of business on Tuesday 19 October 2010. Between 12 October and 20 October, submissions were received from the National Farmers’ Federation, the Australian Workers’ Union and First IR. Further Submissions were received from the National Farmers’ Federation and First IR on 20 October 2010.

Statutory provisions

[4] While the Form upon which the application has been lodged encompasses applications under ss.157 and 160 of the Act it is clear from the submissions that have been filed that the principal ground upon which the application is made is, that, in making the Award on 3 April 2009 there was an error, which should be corrected by the exercise of the discretion vested in Fair Work Australia to do so, as provided in s.160(1) of the Act. Although, it has been submitted, in passing, that Fair Work Australia should vary the Award as sought to achieve the Modern Awards Objective as prescribed by s.134 of the Act. The latter submission would seem to address the conditions under which Fair Work Australia may vary a Modern Award under s.157 of the Act.

[5] The grounds upon which the application are advanced are substantially based upon a proposition that the effect of the variation is consistent with the generality of overtime provisions applicable under the Federal Pastoral Industry Award 1998 and other like industrial instruments, which regulated the employment of persons engaged as Station Hands and Station Cooks, among others, in the Pastoral Industry, prior to the coming into effect of the Award on 1 January 2010. It is submitted that Fair Work Australia made an inadvertent error in not transposing from those instruments the conditional requirements in relation to employee overtime entitlements referred to in the Applicant’s submissions to the Award.

[6] Submissions made in support of the application by the National Farmers’ Federation are harmonious with this proposition.

[7] Submissions on behalf of the Australian Workers’ Union, concede that an error of this kind ‘may’ have occurred although only in relation to Station Hands.

[8] In order to deal with the submissions in support of the application, which are effectively advanced under s.160 of the Act, it is first necessary to give some consideration to what is meant by the words ‘to correct an error’ in s.160. More particularly, it is necessary to establish the nature of the error envisaged by the statutory provisions. In my view, the error comprehended by the terms of s.160 is an error of Fair Work Australia. Such as an error of form or substance in an order or an award which fails to give effect to the intention of a decision.

[9] None of the Submissions or draft awards of the principal industrial organisations of employers or employees submitted in the Award Modernisation process which led up to the publication of an Exposure Draft of a Modern Pastoral Award, on 23 January 2009, provided for the effects sought by the application. Nor were the provisions sought contained in the Exposure Draft published by the Full Bench on that date. It is submitted, by the National Farmers’ Federation, that the matter at issue was overlooked.

[10] When the Exposure Draft was published the ordinary hours and the overtime provisions of the proposed modern award as applicable to the Field and Livestock Classifications, including Station Hands and Station Cooks, were set out as follows:

“29. Ordinary hours of work and rostering

29.1 Ordinary hours of work are provided for in the NES.

29.2 The average ordinary working hours for a Farm and livestock hand will be fixed by agreement between the employer and the employees but will not exceed an average of 38 hours per week over a four week period.

29.3 Spread of hours

Ordinary hours may be worked between 5.00 am and 7.00 pm for up to 10 hours per day, on any five days Monday to Sunday inclusive. Any work performed outside the ordinary hours must be paid for at overtime rates.

30. Overtime and penalty rates

30.1 The rate of pay for overtime for a Farm and livestock hand will be time and a half, except on Sunday when the rate will be double time, except in the case of feeding and watering stock when such work will be paid for at the rate of time and a half.

30.2 An employee may elect to take time off duty, with pay, for a period equal to the overtime worked.”

[11] The Exposure Draft lead to extensive submissions being made by employer organisations seeking significant changes to the provisions of the Exposure Draft regulating the hours of work of employees to be covered by a Modern Award for the Pastoral Industry. Those submissions included reference to differences between the relevant provisions of the Exposure Draft and those of the Pastoral Award 1998 and other instruments.

[12] On 13 February 2009 First IR, on behalf of Pastoralists and Graziers Association of WA, North Australian Pastoral Company Pty Ltd, Consolidated Pastoral Company Pty Ltd, Georgina Pastoral Company Pty Ltd, Great Southern Plantations Pty Ltd, Grazcos Pty Ltd and S. Kidman & Co Pty Ltd, filed submissions relating to the hours of work and overtime provisions of the Exposure Draft. Those submissions referred to the hours of work and overtime provisions of the Pastoral Industry Award 1998, the Northern Territory Cattle Industry Award 2001 and the Farm Employees Award 1985, an extract of those submissions is set out below:

“9. To demonstrate these very large differences, we have extracted the relevant provisions the two mentioned awards and the WA NAPSA;

10. Clause 36 of the Pastoral Industry Award 1998

36. HOURS OF WORK, OVERTIME AND SUNDAY WORK

36.1 Station hands (other than station cooks)

36.1.1 The ordinary hours of work of station hands (other than station cooks) shall not exceed 152 hours in any consecutive period of 4 weeks.

36.1.2 All time worked by an employee in excess of the ordinary hours above shall be deemed to be overtime.

36.1.3 Overtime shall be adjusted as follows:

The employee shall be allowed time off duty, with pay, for a period equal to the overtime worked; or in lieu of taking time off duty, the employee may elect to be paid for the overtime worked; or the rate of pay for overtime shall be time and a half, provided that double time shall be paid for all work performed on Sunday except in the case of feeding or watering the stock when such work shall be paid for at the rate of time and a half.

36.2 Station cooks

36.2.1 There shall be no limitation of hours of work for station cooks but such employees shall receive one and a half days off each week.

36.2.2 A cook who is required to work for more than 5-1/2 days in any one week shall be paid, in addition to the weekly wage of this award, the following overtime rates.

36.2.3 For work on six full days - an amount of 3/22nds of the appropriate weekly rate.

36.2.4 For work on six full days and one half day (6-1/2) - an amount equal to 3/11ths of the appropriate weekly rate.

36.2.5 For work on seven full days - an amount equal to 9/22nds of the appropriate weekly rate.

36.3 No overtime shall be worked nor shall an employee perform work on the employee's day and/or half day off without the permission of or under the instructions of the employer or his authorized representative.

36.4 No employee shall be entitled to payment for overtime, or equivalent time off in lieu thereof, unless the employee makes a claim therefore to the employer or his authorized representative either within two weeks after the overtime is alleged to have been performed or by the next date of payment of the employees’ wages, whichever is the latter

36.5 For the purpose of computing payment for overtime work for an employee engaged on "with keep" terms, the cash value of such employee's wages shall be deemed to be not less than the wage prescribed in this award for a similar class of employee with the value of “keep” added.”

[13] When the Award was made the “Ordinary hours of work and rostering” provisions and the “Overtime and penalty rates” provisions were somewhat different from those of the Exposure Draft. The provisions of the Award which came into operation on 1 January 2010 are as follows:

“30. Ordinary hours of work and rostering

30.1 The average ordinary working hours for a Farm and livestock hand will be fixed by agreement between the employer and the employees but will not exceed an average of 38 hours per week over a four week period.

30.2 The ordinary hours of work of Farm and livestock hands (other than Station cooks) will not exceed 152 hours in any consecutive period of four weeks.

30.3 Station cooks

(a) A cook who is required to work for more than five and a half days in any one week will be paid, in addition to the weekly wage of this award, the following overtime rates:

(i) for work on six full days—an amount of 3/22nds of the appropriate weekly rate;

(ii) for work on six full days and one half day—an amount equal to 3/11ths of the appropriate weekly rate; or

(iii) for work on seven full days—an amount equal to 9/22nds of the appropriate weekly rate.

(b) No overtime will be worked nor will an employee perform work on the employee’s day and/or half day off without the permission of or under the instructions of the employer or their authorised representative.

(c) No employee will be entitled to payment for overtime, or equivalent time off instead, unless the employee makes a claim to the employer or their authorised representative either within two weeks after the overtime is alleged to have been performed or by the next date of payment of the employee’s wages, whichever is the later.

(d) For the purpose of computing payment for overtime work for an employee engaged on ‘with keep’ terms, the cash value of such employee’s wages must be deemed to be not less than the wage prescribed in this award for a similar class of employee with the value of keep added.

31. Overtime

31.1 All time worked by an employee in excess of the ordinary hours in clause 30.1 will be regarded as overtime.

31.2 The rate of pay for overtime for a Farm and livestock hand will be time and a half, except on Sunday when the rate will be double time, except in the case of feeding and watering stock when such work will be paid for at the rate of time and a half.

31.3 An employee may elect to take time off duty, with pay, for a period equal to the overtime worked.”

[14] Notably, clause 30.3 applicable to Station Cooks then appeared as an inclusion in clause 30 of the Award as set out above. Arguably, the inclusion in clause 30.3 of the Award of subparagraphs (c) and (d) is an error. Those provisions are the equivalent of clauses 36.4 and, 36.5 of the Pastoral Industry 1998, as shown previously, which are not a part of the provisions of that Award affecting Station Cooks, as contained in Clause 36.2 thereof.

[15] It is clear, I think, that in response to the submissions of the employer organisations in relation to the provisions of the Exposure Draft the Full Bench determined to Award different terms and conditions regulating ordinary hours and overtime to those contained in the Exposure Draft. In particular I think it is clear that the Full Bench decided to vary the provisions of the Exposure Draft concerning hours of work and overtime in relation to Part 4 of the Award. It is clear that the Full Bench was largely influenced by the submissions of the employers in relation to the subject and decided to vary the relevant parts of the Exposure Draft in deference to the employer organisations’ submissions. A comparative reading of the relevant terms of the Exposure Draft and the Award demonstrates accordingly.

[16] In these circumstances it would seem reasonable to assume that the Full Bench decided to Award largely in line with the submissions pressed upon them by the employer organisations to substantially reflect the relevant provisions of the Pastoral Industry Award 1998 in relation to Ordinary Hours and Overtime in Part 4 of the Award 1.

[17] Before departing discussion of the provisions of clause 36 of the Pastoral Industry Award 1998, however, attention should be drawn to clause 36.3 thereof which, although apparently of general application, would only seem apt to the work of Station Cooks who, under the Pastoral Award 1998, are subject to a provision that they must have ‘one and a half days off each week’, a provisions which did not apply to station Hands under that award. For my purposes, I will assume that clause 36.3 of the Pastoral Industry Award 1998 as numerically designated is probably a formatting error in the Pastoral Industry Award 1998 and that clauses 36.4 and 36.5 of the Pastoral Industry Award 1998 were of general application to both Station Hands and Station Cooks under that award.

[18] If there is an error in the Award it appears to be the inclusion in the provisions governing the ordinary hours and overtime provisions affecting Station Cooks of subparagraphs (c) and (d) as discretely applicable to the regulation of the ordinary hours of work and overtime of such employees.

[19] On the Applicant’s case, the provisions of subclauses (c) and (d) of clause 30.3 of the Award should apply to all employees covered by Part 4—Braodacre Farming and Livestock of the Award. This, it is submitted, was the effect of clauses 36.4 and 36.5 of the Pastoral Industry Award 1998.

[20] In my view, the inclusion of subclauses (c) and (d) in clause 30.3 of the Award is a formatting error. Those subclauses should be deleted from clause 30.3 and should be added to clause 31 so as to apply to the employees covered by Part 4 of the Award.

[21] An Order will issue accordingly.

COMMISSIONER

 1   Award Modernisation(AM2008/5, 7 and 13–24) [2009] AIRCFB 345, PR042009

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