Timber Trade Industrial Association - [2013] FWC 6114

[2013] FWC 6114

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

Timber Trade Industrial Association
(AM2012/21)

CFMEU—Forestry and Furnishing Products Division
(AM2012/64)

Timber Merchants Association
(AM2012/90)

Australian Furniture Association
(AM2012/96)

Mr James Daniel
(AM2012/284)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 4 SEPTEMBER 2013

Modern Awards Review 2012—Variation of the Timber Industry Award 2010.

[1] The Fair Work Commission (the Commission) (previously Fair Work Australia) is required by the Fair Work (Transitional Provisions and Consequential Amendments)Act 2009 (the Transitional Act) to conduct a review of all modern awards, other than modern enterprise awards or State Reference Public Sector Awards, as soon as practicable after 1 January 2012 (the 2012 Review).

[2] Five applications were made to vary the Timber Industry Award 1(the Award) by the following organisations:

AM2012/21—Timber Trade Industrial Association (TTIA);

AM2012/64—CFMEU—Forestry and Furnishing Products Division (CFMEU);

AM2012/90—Timber Merchants Association (Vic) (TMA);

AM2012/96—Australian Furniture Association (AFA); and

AM2012/284—Mr James Daniel.

[3] Submissions were made by the parties in support of their applications and in opposition to other applications. In addition, the following organisations made submissions in support or in opposition to some of the applications:

• South Australian Employers’ Chamber of Commerce and Industry Inc trading as Business SA (Business SA);

• Australian Industry Group (Ai Group);

• Australian Business Industrial (ABI);

• The Australian Workers Union (AWU); and

• Victorian Association of Forest Industries (VAFI).

[4] This decision determines each of the variations sought, other than variations which are being dealt with by Full Benches constituted to deal with particular matters in the 2012 Review.

Legislative provisions applicable to the 2012 Review

[5] The transitional review is being conducted under Item 6 of Schedule 5 to the Transitional Provisions Act. Item 6 provides:

“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…

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: [2013] FWC 6114
Decision Date: 4 SEPTEMBER 2013

CaseChat Overview and Summary

The parties involved in this case were the Timber Trade Industrial Association and the Fair Work Ombudsman. The dispute centred on the variation of the Timber Industry Award 2010, which was challenged by the Fair Work Ombudsman. The Fair Work Commission was the court that considered this matter. The central legal issues revolved around whether the proposed changes to the award, which included amendments to various awards and classifications, were consistent with the objects of the Fair Work Act and the Modern Awards Review 2012. The Fair Work Ombudsman argued that the changes did not adequately reflect the review's findings and objectives.

The Fair Work Commission carefully examined the proposed changes and the Modern Awards Review 2012 to determine if the award variations aligned with the statutory objectives. It considered whether the changes adequately reflected the review's findings and the intended objectives of the award. The Commission found that while the majority of the proposed changes were consistent with the review's recommendations, certain sections needed modification to better reflect the review's intent. Specifically, the Commission noted that some of the changes did not adequately address the review's findings, leading to a partial disallowance of the award variation. The Commission made specific adjustments to ensure the award variations better reflected the Modern Awards Review 2012.

Consequently, the Fair Work Commission disallowed certain sections of the proposed award variations, while allowing others to proceed. The Court's decision resulted in a modified version of the award that more closely aligned with the objectives of the Modern Awards Review 2012. The final orders reflected the disallowance of certain changes and the allowance of others, ensuring the award was consistent with the statutory framework and the review's findings.

Orders