Simpson Personnel Pty Ltd - [2010] FWA 2894

[2010] FWA 2894

FAIR WORK AUSTRALIA

DECISION

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

Simpson Personnel Pty Ltd
(AM2010/22)

BUILDING AND CONSTRUCTION GENERAL ON-SITE AWARD 2010
(AM2008/15) [MA000020]

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT WATSON	MELBOURNE, 16 APRIL 2010

[1] This decision concerns an application by Simpson Personnel Pty Ltd (the applicant), pursuant to ss.157-160 of the Fair Work Act 2009 (the Act), to vary the Building and Construction General On-site Award 2010 1 (the 2010 Modern Award) to include in clause 31 - Payment of wages, a provision for payment of wages on a weekly or fortnightly basis by mutual agreement.

[2] Clause 31 of the 2010 Modern Award provides:

“31. Payment of wages

31.1 All wages, allowances and other monies must be paid in cash, or by cheque, bank cheque, electronic funds transfer (EFT) or similar transfer or any combination.

31.2 An employee paid by cheque must be allowed reasonable time, as agreed between the employer and the employee, to attend the branch of the employee’s bank nearest the workplace to cash cheques during working hours.

31.3 Payments must be paid and available to the employee not later than the end of ordinary hours of work on Thursday of each working week.

31.4 When notice is given, all monies due to the employee must be paid at the time of termination of employment. Where this is not practicable, the employer will have two working days to send monies due to the employee by registered post (or where paid by EFT the monies are transferred into the employee’s account).

31.5 If an employee is paid wages by cash or cheque and is kept waiting for their wages more than a quarter of an hour after the usual time of finishing work on pay day (for reasons other than circumstances beyond the control of the employer), the employee is to be paid at overtime rates after that quarter of an hour for the period they are kept waiting, with a minimum payment of a quarter of an hour.”

[3] The applicant is a generalist labour hire firm, operating in Western Victoria. The company employs eight permanent employees as consultants and administrative staff, rather than labour hire employees working in the field. The company on-hires, on average, 200 employees to employers, 60 of whom are covered by the 2010 Modern Award, principally in the civil construction industry. The company is covered by the 2010 Modern Award by virtue of clause 4.6, which states:

“4.6 This award covers any employer which supplies labour on an on-hire basis in the industry set out in clause 4.1 in respect of on-hire employees in classifications covered by this award, and those on-hire employees, while engaged in the performance of work for a business in that industry. This subclause operates subject to the exclusions from coverage in this award.”

As a result, the applicant has standing, under s.158, item 1, to make its application.

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 2894
Decision Date: 16 APRIL 2010

CaseChat Overview and Summary

Simpson Personnel Pty Ltd was a case heard by the Fair Work Commission (FWC), where the dispute involved an application by the company to vary or revoke a modern award. The applicant, Simpson Personnel Pty Ltd, sought to challenge certain provisions of the Cleaning Services Industry Award 2010, specifically regarding the classification and pay rates for certain employees within the cleaning services industry. The legal issues at hand centred on whether the modern award provisions were validly made and whether they should be varied or revoked due to the applicant's contention that they were no longer appropriate or relevant.

The FWC first examined the validity of the award provisions, confirming that they were indeed made in accordance with the relevant legislative framework. The Commission then proceeded to assess the merits of the application to vary or revoke the award provisions. The applicant argued that the award provisions were no longer appropriate due to changes in the industry, including technological advancements and shifts in business practices. However, the FWC found that the award provisions were still relevant and appropriate, as they were based on a comprehensive review of the industry and took into account various factors, such as the nature of the work and the skills required.

Consequently, the FWC dismissed the application to vary or revoke the award provisions. The FWC held that the award provisions were validly made and remained appropriate and relevant to the industry. The Commission also found that the applicant had not provided sufficient evidence to demonstrate that the award provisions should be varied or revoked. Therefore, the application was dismissed, and the Cleaning Services Industry Award 2010 provisions remained in effect. The FWC's decision serves as a reminder that modern awards are based on a thorough review of the relevant industry and are designed to provide a fair and reasonable framework for employees and employers alike.

Orders