DECISION

Fair Work Act 2009
s.160—Application to vary a modern award to remove ambiguity or uncertainty or correct error

Variation on the Commission’s Own Motion—Textile, Clothing, Footwear and Associated Industries Award 2020
(AM2021/59)

Clothing industry
JUSTICE ROSS, PRESIDENT	MELBOURNE, 31 MAY 2021

Variation of modern award to correct error – Textile, Clothing, Footwear and Associated Industries Award 2020 – payment for shiftwork – clause 29.3 varied.

[1] In a statement issued on 12 May 2021 1 (the Statement) an error was identified concerning the expression of the entitlements for the afternoon and night shift and the permanent night shift in clause 29.3 of the Textile, Clothing, Footwear and Associated Industries Award 2020 (the Award), being described as 115% and 130% of the weekly award rate, respectively. This is inconsistent with the method of calculating payments applied for those same shifts in clauses C.3.1 and C.5.1 of the Award. The calculation method set out in clauses C.3.1 and C.5.1 is 15% or 30% of the ordinary weekly rate per shift is in addition to whatever payment would be received for ordinary hours.

[2] The Statement sets out the background to this issue, as well as the legislative framework for varying a modern award to remove ambiguity, uncertainty or to correct an error. I do not propose to repeat that background here.

[3] In the Statement I expressed the provisional view that the wording of the Payment of the shiftwork provision in clause 29.3 of the Award is incorrect and inconsistent with clauses C.3.1 and C.5.2 and constitutes an error for the purposes of s.160 of the Fair Work Act 2009 (Cth).

[4] To correct the error, I proposed that clause 29.3 be amended as follows:

‘(a) A shiftworker while on afternoon or night shift will be paid an additional 15% ~~115%~~ of the weekly award rate per shift for the classification concerned.

(b) A shiftworker while on permanent night shift will be paid an additional 30% ~~130%~~ of the weekly award rate per shift for the classification concerned.

NOTE: See Schedule C—Summary of Hourly Rates of Pay for a summary of hourly rates of pay including overtime and penalty rates.’

[5] A draft determination was published concurrently with the Statement and I expressed that it was my provisional view that the determination should operate retrospectively from 1 February 2021 (being the date the error was introduced into the Award).

[6] Parties were requested to file any submissions in opposition to the provisional views by 4pm on 26 May 2021.

[7] Only one submission was received from the Australian Industry Group advising it agreed with the proposed variation and accordingly, I confirm my provisional views. A determination giving effect to the change will be issued with this decision.

PRESIDENT

Printed by authority of the Commonwealth Government Printer

1 [2021] FWC 2677.

CaseChat Overview and Summary

In the Fair Work Commission, the Textile, Clothing, Footwear and Associated Industries Award 2020 was the subject of a variation on the Commission’s own motion. The dispute centred on the interpretation and correction of a clause within the Award that pertained to shiftwork payments. The Commission was tasked with ensuring that the Award accurately reflected legislative intent and provided fair compensation for shiftworkers.

The legal issues before the Commission included determining the correct interpretation of the shiftwork provisions in the Award, specifically clause 29.3, and whether the existing wording led to an unintended outcome that did not align with legislative objectives. The Commission had to assess whether a variation was necessary to correct any errors in the Award and to ensure that it provided fair and reasonable terms and conditions of employment in line with the Fair Work Act 2009.

The Commission found that clause 29.3 of the Award contained an error that resulted in shiftworkers not being adequately compensated as intended by the legislation. The existing wording did not correctly reflect the legislative intent for shiftwork payments. Consequently, the Commission exercised its power to vary the Award on its own motion to correct this error. The variation ensured that the Award provided fair and reasonable terms and conditions for shiftworkers, aligning with the requirements of the Fair Work Act.

The Commission varied clause 29.3 of the Textile, Clothing, Footwear and Associated Industries Award 2020 to correct the error and ensure compliance with legislative intent. The revised clause now accurately reflects the provisions for shiftwork payments, providing fair and reasonable terms and conditions for employees in the industry. This variation ensures that the Award remains a just and equitable modern award.

Variation on the Commission’s Own Motion—Textile, Clothing, Footwear and Associated Industries Award 2020

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established