Tasmanian Chamber of Commerce and Industry Inc

[2013] FWC 404

[2013] FWC 404

FAIR WORK COMMISSION

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

Tasmanian Chamber of Commerce and Industry Inc
(AM2012/68)

National Union of Workers
(AM2012/279)

SEAFOOD PROCESSING AWARD 2010

(ODN AM2008/36)

[MA000068 Print PR988780]]

Seafood processing
COMMISSIONER HAMPTON	ADELAIDE, 7 MARCH 2013

Modern Awards Review 2012.

[1] The Fair Work (Transitional Provisions and Consequential Amendments)Act 2009 (the Transitional Provisions Act) provides that the Fair Work Commission 1 must conduct a review of all modern awards2 as soon as practicable after 1 January 2012 (the Review).

[2] The legislative context for the Review is principally set out in Item 6 of Schedule 5 of the Transitional Provisions Act:

“6 Review of all modern awards (other than modern enterprise awards and State reference public sector modern awards) after first 2 years

(1) As soon as practicable after the second anniversary of the FW (safety net provisions) commencement day, FWA must conduct a review of all modern awards, other than modern enterprise awards and State reference public sector modern awards.

Note: The review required by this item is in addition to the annual wage reviews and 4 yearly reviews of modern awards that FWA is required to conduct under the FW Act.

(2) In the review, FWA must consider whether the modern awards:

(a) achieve the modern awards objective; and

(b) are operating effectively, without anomalies or technical problems arising from the Part 10A award modernisation process.

(2A) The review must be such that each modern award is reviewed in its own right. However, this does not prevent FWA from reviewing 2 or more modern awards at the same time.

(3) FWA may make a determination varying any of the modern awards in any way that FWA considers appropriate to remedy any issues identified in the review.

Note: Any variation of a modern award must comply with the requirements of the FW Act relating to the content of modern awards (see Subdivision A of Division 3 of Part 2-3 of the FW Act).

(4) The modern awards objective applies to FWA making a variation under this item, and the minimum wages objective also applies if the variation relates to modern award minimum wages.

(5) FWA may advise persons or bodies about the review in any way FWA considers appropriate.

(6) Section 625 of the FW Act (which deals with delegation by the President of functions and powers of FWA) has effect as if subsection (2) of that section included a reference to FWA’s powers under subitem (5).

[3] Fair Work Australia as it was then known established a comprehensive process in late 2011 to facilitate the Review. As part of that process, two applications were made to vary the Seafood Processing Award 2010 (the Award); namely by the Tasmanian Chamber of Commerce and Industry Inc (TCCI) and the National Union of Workers (NUW).

[4] I also note that an earlier application made by Business SA was withdrawn prior to being assigned to me. 3

[5] The TCCI application dealt with paid rest breaks and the NUW application concerned junior rates, meal allowances, public holidays and washing up time. Of these matters, those elements concerning public holidays have been referred to a Full Bench 4 to consider and determine. The remaining elements of the applications were assigned to me.5

[6] Preliminary proceedings were conducted concerning both remaining applications however, before the matters were due to be heard, the TCCI application 6, and subsequently the NUW application,7 were discontinued.

[7] Given those developments I have now considered the Award in the context of the Review.

[8] The parameters of the Review and the obligations upon the Fair Work Commission were extensively set out in the decision of the Full Bench in Modern Awards Review 2012 [2012] FWAFB 5600.

[9] In accordance with item 6 of Schedule 5 of the Transitional Provisions Act I have reviewed the Award. With the exception of those matters which are reserved for determination by one or more of the Full Benches dealing with other aspects of the Review, 8 I consider that the Award is achieving the modern awards objective and is operating effectively, without anomalies or technical problems arising from the Part 10A award modernisation process.

COMMISSIONER

Appearances:

M Buchanan on behalf of Tasmanian Chamber of Commerce and Industry.

I Beynon on behalf of the National Union of Workers.

H Wallgren on behalf of the South Australian Chamber of Commerce and Industry t/a Business SA.

Z Angus on behalf of The Australian Workers’ Union.

G Starr on behalf of the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers’ Union (AMWU).

Hearing details:

2012.

Adelaide: with video links to Sydney, Melbourne and Hobart.

November 11.

 1   Fair Work Australia became the Fair Work Commission on 1 January 2013.

 2   The Review does not include modern enterprise awards or State Reference Public Sector Awards.

 3   AM2012/268 was withdrawn on 7 May 2012.

 4   The NUW application concerning public holidays reflects the application made by the ACTU (AM2012/134) which involves a number of modern awards.

 5   I also note that a variation to this Award concerning Superannuation funds was made as part of the Review on 23 October 2012 - [2012] FWA 8822.

 6   The TCCI application was discontinued on 12 December 2012.

 7   The NUW application was discontinued on 15 January 2013.

 8   There are common claims before other Full Benches which may affect this Award and have not been considered by me.

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<Price code A, MA000068  PR533290>