The Australian Workers' Union

[2010] FWA 5155

[2010] FWA 5155

FAIR WORK AUSTRALIA

DECISION

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

The Australian Workers' Union
(AM2010/96)

Agricultural industry
COMMISSIONER LEWIN	MELBOURNE, 19 JULY 2010

Wage rates and allowances.

[1] This decision concerns an application by the Australian Workers’ Union (the AWU) for an application to vary the Pastoral Award 2010 (the Modern Award) pursuant to s.158 of the Fair Work Act 2009 (the Act). The application was lodged in Fair Work Australia on 2 July 2010. The application seeks to increase the minimum rate prescribed by clause 45.4(b) of the Award which forms part of the formula by which rates of pay for Woolpressers are calculated. The applicant seeks that the minimum rate be increased from $581.68 to $609.46.

[2] The Pastoral Industry Award 1998, (which applied prior to the Modern Award), contained piecework rates for Woolpressers which were calculated on a formula based on a week of 40 ordinary hours. The application seeks to vary the “timework” rates for Woolpressers at clause 45.4 of the Pastoral Award 2010 so that the timework rates for Woolpressers and other pieceworkers employed on shearing operations properly reflect the Full Bench decision of 3 April 2009 1 for piecework rates and to provide a 38 hour week in accordance with the National Employment Standards2. The Modern Award includes revised piecework rates which reflect an increase in the minimum rate component of the formula used to calculate such rates of 5% in order to reflect the introduction of a standard 38 hour week.

[3] The AWU seeks an order to vary the Modern Award by replacing the rates in the table at clause 45.4(b) of the Modern Award and inserting rates based on a revised method of calculation which reflects a 38 hour week.

[4] In addition, consequential variations to subsclauses 45.4(d) and (g) of the Agreement are sought.

[5] Submissions in support of the application were filed in the Tribunal on 9 July 2010 by the AWU. In those Submissions the AWU indicated that the application was consented to by the National Farmers’ Federation (the NFF). The AWU attached a corrected draft order to that correspondence. The NFF also filed a submission in Fair Work Australia on 9 July 2010 to the effect that it consents to the amended draft order provided that the variation to the Award is subject to an operative date of the first full pay period on or after the date of the decision and that payments are not to be made retrospectively.

[6] On 12 July 2010, Directions were published on the Fair Work Australia Award Modernisation website directing parties to file all submissions in relation to this application by 4.00 pm on Friday 16 July 2010.

[7] No further submissions were filed in this matter.

[8] Applications to vary a modern award are subject to the provisions of s.157 of the Act which is set out below:

“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).

(2) FWA may make a determination varying modern award minimum wages if FWA is satisfied that:

(a) the variation of modern award minimum wages is justified by work value reasons; and

(b) making the determination outside the system of annual wage reviews and the system of 4 yearly reviews of modern awards is necessary to achieve the modern awards objective.

Note: As FWA is varying modern award minimum wages, the minimum wages objective also applies (see section 284).

(3) FWA may make a determination or modern award under this section:

(a) on its own initiative; or

(b) on application under section 158.”

[9] I am satisfied that the variation is necessary to achieve the modern awards objective pursuant to s.157 of the Act. In my view, the failure to adjust the minimum rate in the Woolpresser’s formula was an oversight in the award modernisation process and constitutes an error within the meaning of the relevant statutory provisions. A determination will issue accordingly.

COMMISSIONER

 1   [2009] AIRCFB 345

 2 Section 134 of the Fair Work Act 2009.

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