NSW Farmers' (Industrial) Association - [2010] FWA 4576

[2010] FWA 4576

FAIR WORK AUSTRALIA

DECISION

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

NSW Farmers' (Industrial) Association
(AM2010/47)

Agricultural industry
COMMISSIONER LEWIN	MELBOURNE, 21 JULY 2010

[1] This decision concerns an application by the New South Wales Farmers’ (Industrial) Association (NSWFIA) to vary the Pastoral Industry Award 2010 (the modern award). The application was lodged in Fair Work Australia on 8 April 2010.

[2] The NSWFIA seek to vary the modern award in relation to the minimum engagement of part-time and casual employees, “keep” arrangements in accordance with the definition of “keep” in clause 3.1 and in relation to vehicle allowance provisions for Shearing Operations employees.

[3] Directions were posted on the Fair Work Australia Award Modernisation website and interested parties were notified of these directions. The applicant was directed to file full written Submissions in support of the application by the close of business on Friday 7 May 2010. Other interested parties were directed to file full written Submissions by Friday 14 May 2010.

[4] Pursuant to the Directions posted on the Award Modernisation website, On 21 April 2010, Business SA filed Submissions in support of the NSWFIA’s proposed reduction to the minimum engagement for part-time and casual employees. On 6 May 2010, the National Farmers’ Federation filed full written Submissions in support of the application. On 13 May 2010 the Australian Workers’ Union (the AWU) filed Submissions in opposition to the application.

[5] Upon receipt of the submissions of all parties, I sought the views of the NSWFIA and the AWU as to whether the parties wished that the Tribunal conduct a Hearing or whether the matter ought to be determined on the papers. The AWU did not express a preference. The NSWFIA held the view that a Hearing would be the most expeditious way to determine the matter.

[6] On 16 June 2010, the application was listed for Hearing on 21 June 2010 at Sydney. On 21 June, Ms Denita Wawn appeared on behalf of the NSWFIA and the National Farmers’ Federation (the NFF). No other parties appeared at the Hearing.

The application and variations sought

[7] Firstly, the application seeks to vary clauses 10.3(e) and 10.4(f) of the modern award which are set out below:

“10.3(e): An employer is required to roster a part-time employee for a minimum of three consecutive hours on any shift.

10.4(f): On each occasion a casual employee, other than a casual pieceworker, is required to attend for work, casual employees are entitled to a minimum payment of three hours’ work at the appropriate rate.”

[8] The application seeks to vary these clauses by changing the minimum engagements in the abovementioned clauses from three hours to two hours.

[9] Secondly, the application seeks to insert a new sub-clause to be numbered clause 28.3 the modern award as follows:

“28.3 - With Keep Rate

If keep is provided then the minimum wage will be the rates prescribed above less $107.77 per week.”

[10] The proposed…

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: [2010] FWA 4576
Decision Date: 21 JULY 2010

CaseChat Overview and Summary

The New South Wales Farmers’ (Industrial) Association sought to vary the Pastoral Industry Award 2010, which was the subject of an application lodged with Fair Work Australia on 8 April 2010. The application aimed to amend the award to better reflect the current conditions of employment within the pastoral industry. The dispute revolved around the classification of employees and the associated remuneration and conditions that should be applicable under the modern award.

The primary legal issue before the court was whether the proposed changes to the award were justifiable and necessary to maintain fair and reasonable industrial relations within the pastoral industry. This required the court to consider the submissions and evidence provided by the NSWFIA and other stakeholders, including the Australian Workers’ Union, regarding the economic and operational realities faced by pastoral employers and employees.

The court examined the evidence and submissions to determine if the proposed changes were necessary to ensure the award remained fair and reasonable. It took into account the economic conditions, the practicalities of pastoral work, and the need for a balance between the interests of employers and employees. The court concluded that the application for variation was justified, and the changes proposed by the NSWFIA were necessary to reflect the current industrial landscape. The court ordered that the Pastoral Industry Award 2010 be varied as per the application.

Orders