National Union of Workers - [2012] FWA 7212

[2012] FWA 7212

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

National Union of Workers
(AM2012/85)

Oil and gas industry
VICE PRESIDENT WATSON	SYDNEY, 23 AUGUST 2012

Review of modern awards - application to vary the Oil Refining and Manufacturing Award 2010 - compassionate leave - where award modernisation Full Bench has decided not to supplement NES - social inclusion Fair Work (Transitional Provisions and Consequential Amendments) Act 2009, Sch 5 Item 6. Fair Work Act 2009 ss.134, 138.

Introduction

[1] This decision concerns an application by the National Union of Workers (NUW) to vary the Oil Refining and Manufacturing Award 2010 1(the Award). The application is made under Sch. 5, Item 6 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the Transitional Act) as part of the review of all modern awards of which Fair Work Australia is required to conduct after the first two years of all modern awards coming into effect (the 2012 Review).

[2] The application concerns a variation to the compassionate leave entitlements under the Award. As part of the 2012 Review, interested parties were directed to file submissions in either support or opposition of the variation. The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) and the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) provided correspondence indicating that they agreed to the variation sought. The Oil Industry Industrial Committee (OIIC) and related entities engaged in the oil industry in Australia, opposed the variation.

[3] At the hearing of this matter in Melbourne, Mr D Mujkic appeared on behalf of the NUW and Ms Q Le appeared on behalf of the OIIC.

[4] Compassionate leave is presently dealt with in clause 27 of the Award. It reads:

“Personal/carer’s leave and compassionate leave are provided for in the NES.”

[5] The NUW application seeks to vary the compassionate leave provision so that the clause will supplement the NES by providing an additional day of compassionate leave on each permissible occasion (as defined in s.104 of the Act).

Background

[6] The Award was made at the conclusion of the award modernisation process which was conducted by the Australian Industrial Relations Commission (AIRC) under part 10A of the former Workplace Relations Act 1996 (Part 10A process). The Part 10A process was completed in four stages, with each stage focussing on different industries and occupations. All stakeholders and any other interested parties were invited to make submissions on what should be included in modern awards.

[7] Separate consultations were conducted individually by members of the award modernisation Full Bench in respect of each modern award that was to be created to allow parties the opportunity to make submissions and raise any matters of concern.

[8] On 19 December 2008, the award modernisation Full…

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 7212
Decision Date: 23 AUGUST 2012

CaseChat Overview and Summary

The National Union of Workers filed an application in the Fair Work Commission, seeking a review and amendment of the Oil Refining and Manufacturing Award 2010, specifically to include provisions for compassionate leave. The dispute arose from the modernisation of awards, where the Full Bench had determined not to supplement the National Employment Standards (NES) with additional leave provisions.

The central legal issues revolved around the interpretation and application of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009, particularly Schedule 5 Item 6, and sections 134 and 138 of the Fair Work Act 2009. The court needed to determine whether the Award could be amended to include provisions for compassionate leave, considering the Full Bench's decision not to supplement the NES.

In reaching its decision, the Commission examined the legislative framework and the Full Bench's rationale for not supplementing the NES. It considered the policy implications and the need for social inclusion. Ultimately, the Commission decided not to amend the Award to include compassionate leave provisions, aligning with the Full Bench's decision. The reasoning emphasised the importance of maintaining consistency in award modernisation processes and adhering to legislative mandates.

No further orders were made beyond the decision to uphold the existing Award without the requested amendments.

Orders