Mr Patrick Batch

[2011] FWA 3974

[2011] FWA 3974

FAIR WORK AUSTRALIA

DECISION

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

Mr Patrick Batch
(AM2011/7)

Animal care and veterinary services
COMMISSIONER SMITH	MELBOURNE, 19 SEPTEMBER 2011

Varying minimum hours of engagement for secondary school students.

Introduction

[1] An application has been made by Mr Patrick Batch pursuant to s.158 of the Fair Work Act 2009 (the Act) to vary the Animal Care and Veterinary Services Award 2010 [MA000118] (the Award). In general terms the application seeks to reduce the minimum engagement period for casual employees who are secondary school students to two or two hours and thirty minutes. The Award currently provides for a minimum hiring period of three hours.

[2] The matter was heard in Brisbane on 16 March 2011. The matter was listed in the usual way and interested parties to the award were notified via the Fair Work Australia website. Mr Batch appeared but no other interested person appeared or provided any written submissions. In short there was no opposition to the application.

Background

[3] The making of the award involved a review of all the awards which covered animal care and veterinary services. Prior to the making of the modern award the situation in the various States differed. In Queensland the minimum engagement period was for two hours; in South Australia the minimum hiring is three hours as it is for Tasmania and Western Australia. In New South Wales it can be three or four hours and in the ACT and Victoria it varies from the position where, in specific circumstances, no minimum hours appear to exist.

[4] Therefore it can be seen how the provision in the modern award was arrived at having regard to the existing instruments and the submissions at the time.

[5] I note that His Honour Vice President Watson issued a decision 1 in relation to an application2 which is similar in nature to Mr Batch’s application, and which relates to the General Retail Industry Award 2010 [MA000004]. In that decision His Honour decided that he would introduce a shorter engagement period for secondary school students. His Honour’s decision was appealed and the appeal decision was handed down on 14 September 2011.3 The Full Bench examined His Honour’s decision and his treatment of the evidence and in particular the modern award objective. In the result the Full Bench found that His Honours decision was not affected by error and the appeal was dismissed.

The relevant Legislation

[6] The application by Mr Batch has been made under s.158 of the Act invoking the powers of FWA to vary a modern award pursuant to s.157 of the Act. Section 157 provides:

“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).”

[7] Further, the modern awards objective can be found at s.134 of the Act. It provides:

“(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.”

Submissions

[8] Mr Batch made the following points:

• Mr Batch is a Veterinary Surgeon.



• By and large people applying for a position in his business are females. 4



• Women, other than school age, prefer not to work between the hours of 3.00 p.m. to 6.00 p.m., therefore the majority of applicants are students. 5



• The positions involve cleaning 6 ordering and marking off stock on a computer and retail sales [in 100 square metres of retail].



• He has two businesses and one of them closes at 6.00 p.m. and one at 7.00 p.m.

Conclusion

[9] Whilst this matter is not opposed, nevertheless it is still appropriate to ensure that the statutory scheme is considered when dealing with the variation of a modern award.

[10] In light of the Full Bench decision, I am satisfied that granting the application would be consistent with the modern award objective, provided it is otherwise supported by the merits.

[11] Unlike much earlier proceedings involving the General Retail Industry Award 2010 [MA000004], the argument advanced by Mr Batch only related to secondary school students. In this sense it invokes similar consideration to that adumbrated extensively by His Honour Vice President Watson. In the absence of opposition to the application and given the circumstances which gave rise to the application, I am prepared to vary the award to provide for a 2.5 hour minimum hiring period for secondary school students. Similar constraints to that decided by the Vice President will be included. The determination is attached.

COMMISSIONER

Appearances:

P. Batch the applicant.

Hearing details:

2011.
Brisbane:
March, 16.

 1   [2011] FWA 3777

 2   AM2010/226

 3   [2011] FWAFB 6251

 4   Transcript PN8

 5   Transcript PN10

 6   Transcript PN14, PN24, PN28

Printed by authority of the Commonwealth Government Printer

<Price code A, MA000118  PR510808>