ANNUAL WAGE REVIEW – 2016/17 financial year – s.285 Fair Work Act 2009 – Full Bench – the FW Act requires the Commission’s Expert Panel for annual wage reviews (Panel) to conduct and complete a review of the national minimum wage (NMW) and minimum wages in modern awards in each financial year – decision directly affects over 2.3 million employees in Australia who are reliant on minimum rates of pay – in setting the NMW rate the Panel must take into account the objects of the FW Act and the minimum wages objective in s.284 – in reviewing modern award minimum wages the Panel must also take these matters into account, as well as the modern awards objective in s.134 – the economy has continued to grow – prevailing economic circumstances provide an opportunity to improve the relative living standards of the low paid and to enable them to better meet their needs – the Panel also required to take into account a range of social and other considerations, in particular the ‘promotion of social inclusion through increased workforce participation’; ‘relative living standards and the needs of the low paid’, ‘the principle of equal remuneration for work of equal or comparable value’, and the ‘need to encourage collective bargaining’ – consideration of the international research on the impact of increases in minimum wages on employment, particularly the UK research, fortified the Panel’s view that modest and regular wage increases do not result in disemployment effects – research also suggested that the Panel’s past assessment of what constitutes a ‘modest’ increase may have been overly cautious – the Panel acknowledged that the increase proposed would not lift all awardreliant employees out of poverty, particularly those households with dependent children and a single-wage earner – however, to grant an increase to the NMW and award minimum rates of the size necessary to immediately lift all full-time workers out of poverty was likely to have adverse employment effects on those groups who are already marginalised in the labour market – the level of increase decided upon will not lead to inflationary pressure and is highly unlikely to have any measurable negative impact on employment, it will, however, mean an improvement in the real wages for those employees who are reliant on the NMW and modern award minimum wages and an improvement in their relative living standards – the Panel determined it was appropriate to increase the NMW by 3.3 per cent – the NMW will be $694.90 per week, or $18.29 per hour – the hourly rate has been calculated by dividing the weekly rate by 38, on the basis of the 38-hour week for a full-time employee – this constitutes an increase of $22.20 per week to the weekly rate, or 59 cents per hour to the hourly rate – the Panel also considered it was appropriate to adjust modern award minimum wages by 3.3 per cent – weekly wages will be rounded to the nearest 10 cents – the determinations and order giving effect to the decision will come into operation on 1 July 2017. Annual Wage Review 2016-17
June 21, 2017
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – ss.604, 739 Fair Work Act 2009 – appeal – Full Bench – dispute on appeal concerned whether there was an entitlement to laundry allowance under the Berri P/L (Leeton) Enterprise Agreement 2014 (the 2014 Agreement) – decision at first instance found that laundry allowance was not payable – found that laundry allowance was explicitly set out in 1996 Agreement but allowance had since been deleted from subsequent agreements – Commission satisfied that the 2014 Agreement was ambiguous in that it did not specify how laundry allowance was to be paid, basis of payment and who is entitled to it – Commission found that laundry allowance was ‘bought out’ by Berri as part of wages package in the 1999 Agreement and there had been no consideration of the allowance in negotiations for 2014 Agreement – Commission accepted that reference to allowance in 2014 Agreement was an inadvertent error – appellant submitted that Commission erred in making findings of fact, that Commission’s interpretation was not consistent with enterprise agreement principles and that Commission acted outside its powers – Full Bench held that there was ambiguity in 2014 Agreement regarding laundry allowance, however, Commission erred in concluding that there was no entitlement to the allowance – found that evidence relied on by Commission did not go towards establishing the objective framework of surrounding circumstances – Full Bench found Commission erred in relying on evidence of subjective opinion as to what was discussed in negotiations for the 1999 Agreement – background of 1999 Agreement is of little assistance in ascertaining the proper construction of 2014 Agreement – found that Commission also erred in its reliance on conduct of parties post-2014 Agreement, which amounted to absence of complaint about non-payment of laundry allowance – also observed that admitting post-contractual conduct is a vexed issue in which no clear line of authority has emerged – not persuaded that contextual matters identified lead to conclusion that there was no entitlement to laundry allowance – satisfied that there were errors in decision-making process – permission to appal granted – appeal upheld – decision at first instance quashed – matter remitted to Gostencnik DP for rehearing. Appeal by “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) against decision of Lawrence DP of 27 January 2017 [[2017] FWC 514] Re: Berri P/L
June 21, 2017
ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – ss.604, 739 Fair Work Act 2009 – permission to appeal – Full Bench – dispute concerned whether the Glen Cameron Nominees P/L NSW EBA 2015-2019 (Agreement) meal break clause 18.1 or the relevant Road Transport and Distribution Award 2010 (Award) shift work clause 24.9 applied to shift workers – at first instance Commission found clause 24 of the Award in respect of meal breaks applied to employees who perform shift work and are covered by the Agreement – grounds of appeal included error in construction of clause 18.1 of the Agreement and clause 24.9 of the Award, failure to consider relevant evidence of parties’ intentions when making the Agreement; failure to have regard to the parties ‘common understanding’ of the meaning of clause 18.1 of the Agreement and clause 25A of the former agreement – Commission also erred by not drawing adverse inference from respondent’s failure to call witnesses present during negotiation of the Agreement and failure to consider negotiation meetings minutes for the Agreement – Full Bench found the Commission adopted an orthodox approach to interpreting the award and Agreement – as there was no issue of ambiguity, there was no requirement for the Commission to consider the common intention of the parties [Golden Cockerel] – also satisfied the Commission considered the context and purpose of the Agreement as a whole – not satisfied of an arguable error in relation to any other part of the decision nor that granting the appear would be in the public interest – permission to appeal refused. Appeal by Glen Cameron Nominees P/L t/a Glen Cameron Trucking against decision of Bull DP of 28 February 2017 [[2017] FWC 911] Re: Transport Workers’ Union of Australia
June 21, 2017
TERMINATION OF EMPLOYMENT – high income threshold – ss.394, 400, 604 Fair Work Act 2009 – permission to appeal – Full Bench – at first instance Commission upheld respondent’s jurisdictional objection – found that appellant’s annual earnings were greater than the high income threshold and he was neither covered by an enterprise agreement nor a modern award – appellant sought permission to appeal on the basis that the Commission erred in law in relation to the coverage clause of the Manufacturing and Associated Industries and Occupations Award 2010 and erred in law by applying the wrong test to determine industry coverage – whether in public interest, ‘where the test is a discretionary one involving a broad value judgment’ [Coal & Allied] – whether decision at first instance involved a ‘significant error of fact’, the test being ‘a stringent one’ [Coal & Allied] – rarely appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated [Wan] – the fact that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal [GlaxoSmithKline] – Full Bench not satisfied that the Commission erred in concluding that the respondent does not operate in the manufacturing industry – Full Bench not persuaded that there is an arguable case that there is any error of principle or any significant error of fact – no basis to grant permission to appeal – not in public interest – permission to appeal refused. Appeal by Scarborough against decision and order of Platt C of 15 February 2017 [[2017] FWC 947] and [PR590288] Re: Sandfire Resources NL t/a Sandfire Resources NL
June 21, 2017
ENTERPRISE AGREEMENTS – termination of agreement – nominal expiry date – s.225 Fair Work Act 2009 – Full Bench – applicant applied for termination of agreement after its nominal expiry date – applied for application to be referred to a Full Bench for hearing – decision determined three interlocutory issues – Full Bench issued order requiring Coles to produce documents specified in decision – declined to make orders giving effect to applicants proposal for a ballot of Coles employees – Full Bench rejected application of Retail and Fast Food Workers Union to participate in proceedings. Coles Supermarkets Australia P/L and Bi-Lo P/L Retail Agreement 2011
June 21, 2017
MODERN AWARDS – 4 yearly review – ss.134, 138, 156 Fair Work Act 2009 – Full Bench – AMWU sought to vary the coverage of the Graphic Arts, Printing and Publishing Award 2010 (the Award) by replacing references to ‘regional daily newspaper’ with ‘daily newspaper’ – sought to remove the exclusion for shiftworkers accruing additional annual leave – sought to insert new redundancy provisions, additional sick leave entitlements and jury service make-up pay – other than the coverage and shiftworker variations, AMWU’s claims were opposed by employer parties – Full Bench decided to clarify the coverage of metropolitan daily newspapers by amending the definition and to remove the exclusion for shiftworkers accruing additional annual leave – the other claims were rejected – Full Bench not required to form a view about whether the Award currently covers metropolitan daily newspapers, sufficient to observe there is ambiguity or uncertainty about coverage – held that the variation achieves the modern awards objective by creating a simple, fair and relevant safety net – Full Bench saw no reason why shiftworkers should be excluded from accruing additional leave under the Award – AMWU submitted that it sought to introduce the existing industry standard for redundancy, sick leave and jury service – the employer parties submitted these would be substantive variations to the Award – there is no existing industry standard so there would be additional costs for employers – Full Bench noted that more beneficial entitlements in enterprise awards and agreements in the sector were not relevant in establishing provisions of the Award – jury service make-up pay was considered during award modernisation and that Full Bench determined it was not appropriate for the Award – Full Bench found that there was no existing higher standard regarding personal leave in the sector – Full Bench found that the more beneficial redundancy provisions were limited to situations of voluntary redundancy – without an evidence based merits case there is no basis to introduce a higher standard in the Award – the Award will be varied by replacing all references to ‘regional daily newspaper’ with ‘daily newspaper’ and amending the shiftworker provision. Graphic Arts, Printing and Publishing Award 2010
June 21, 2017
ENTERPRISE AGREEMENTS – ambiguity or uncertainty – ss.217, 604 Fair Work Act 2009 – appeal – Full Bench – decision on appeal concerned application by the National Tertiary Education Industry Union (NTEU) to vary the Monash University Enterprise Agreement (Academic and Professional Staff) 2014 (‘the Agreement’) to remove ambiguity or uncertainty in relation to the number of hours sessional staff are paid for marking – Commission at first instance found ambiguity or uncertainty, but not as the NTEU had contended – Commission identified ambiguity concerning payments made to sessional staff who are engaged in marking where that marking is not part of a composite rate already paid – satisfied that it was the mutual intention of parties that sessional staff would receive an hourly rate for all hours spent marking subject to determination by the Dean with respect to the hours allowed for marking – Commission ordered variation to Agreement accordingly – appellant submitted that Commission erred in finding ambiguity where none existed and one which neither party contended – erred in ordering a variation to the Agreement that had neither been sought by the parties nor put to them for consideration – NTEU submitted that Commission was entitled to exercise broad discretion under s.217 of the Act to vary the Agreement to reflect the mutual intention of parties on finding that several provisions in Agreement created ambiguity or uncertainty – Full Bench found that ambiguity or uncertainty identified by Commission was not raised with parties during proceedings – while this may not be fatal by itself, the appellant was not provided with an opportunity to respond to the proposed variation determined by the Commission – Commission satisfied that natural justice was denied to appellant – permission to appeal granted – appeal upheld – decision at first instance quashed – application remitted to Kovacic DP. Appeal by Monash University against decision of Bissett C of 8 November 2016 [[2016] FWCA 7945] Re: National Tertiary Education Industry Union
June 21, 2017
MODERN AWARDS – 4 yearly review – s.156 Fair Work Act 2009 – Full Bench – Decision issued by Full Bench on 23 October 2015 in relation Group 1C, 1D and 1E awards [[2015] FWCFB 7236] – Decision dealt with a number of technical and drafting issues which arose from the exposure draft for the Manufacturing and Associated Industries and Occupations Award 2010 (Manufacturing Award) and the Professional Diving Industry (Industrial) Award 2010 (Industrial Diving Award) – interested parties provided feedback including proposals to amend some provisions – Full Bench considered, rejected and adopted some proposals which resulted in the addition, deletion and amendment of some provisions – identified inconsistencies with earlier decisions in relation to the calculation and application of casual loading to any all-purpose allowances and drafting in the exposure draft for the Manufacturing Award – Full Bench concluded to maintain the standard wording generally used in exposure drafts and did not alter the definition of casual ordinary hourly rate – inconsistencies were also identified in the Industrial Diving Award in relation to a 38 hour week for offshore divers and 33 hour week for inshore divers – concluded inconsistences should be resolved by prescribing a 38 hour week for inshore divers – Full Bench noted any further outstanding technical and drafting issues; identified errors in the exposure drafts or in the draft determinations or summaries of submissions in relation to the Manufacturing award or the Industrial Diving Award to be forwarded to [email protected] by 30 June 2017 – revised exposure drafts for all Group 1 awards to be amended and republished incorporating the revised standard clauses in accordance with the Plain language processes – further directions to be issued to deal with any outstanding issues – awards will be republished for final comment. 4 yearly review of modern awards – Award stage – Group 1
