MA000090 - Decision - 31 Oct 2013

[2013] FWC 7751

The attached document replaces the document previously issued with the above code on 31 October 2013.

Spelling of Mr Wallgren and Ms Cottam corrected.

Luke Johanson

Associate to Commissioner Hampton

Dated 12.11.13

[2013] FWC 7751

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

South Australian Wine Industry Association Incorporated
(AM2012/158)

WINE INDUSTRY AWARD 2010
[MA000090]

Wine industry

COMMISSIONER HAMPTON

ADELAIDE,31 OCTOBER 2013

Application to vary award as part of transitional review - hours of work for vineyard employees during vintage - whether 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 - award not fully meeting apparent purpose - satisfied that cogent reasons for the consideration of an amendment exist - issues arising about proposed provision that could impact upon findings and whether it is appropriate to make the variation as part of the transitional review - further submissions sought.

1. The application and its intended result

[1] The South Australian Wine Industry Association Incorporated (SAWIA) has applied to vary the Wine Industry Award 2010 (the Wine award). This application has been made as part of the review of modern awards being conducted by the Fair Work Commission in accordance with the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the Transitional Provisions Act) (the Transitional Review).

[2] The application is supported by a range of employer organisations but is opposed by two employee organisations.

[3] The Wine award was established by a Full Bench of the Australian Industrial Relations Commission 1 as part of the Part 10A award modernisation process conducted during 2008 and 2009.

[4] The application as amended seeks to vary a provision concerning the ordinary hours of work for day workers in vineyards as presently established in clause 27.2(d) of the award.

[5] Clause 27.2 of the Wine award presently provides as follows:

    “27.2 Ordinary hours of work—day workers

    (a) Subject to clause 27.4,the ordinary hours of work for a day worker are an average of 38 per week.

    (b) Subject to clauses 27.2(c) and 27.2(d),the ordinary hours of work are to be worked continuously,except for meal breaks,between the hours of 6.00 am and 6.00 pm,Monday to Friday.

    (c) The ordinary hours of work for an employee rostered to perform work in the cellar door are to be worked continuously,except for meal breaks,between the hours of 6.00 am and 6.00 pm,Monday to Friday,and 8.00 am and 6.00 pm Saturday to Sunday.

    (d) From 1 November to 30 April,the ordinary hours of work for an employee rostered to perform work in the vineyard are to be worked continuously,except for meal breaks,between the hours of 5.00 am and 6.00 pm Monday to Saturday.

    (e) The spread of hours may be varied by agreement between an employer and the majority of employees in the relevant workplace or the section or sections of it.

    (f) The ordinary hours of work must not exceed 10 hours on any day,provided that the ordinary hours of work may extend to 12 hours on any day by agreement between the employer and the majority of employees in the relevant workplace or the section or sections of it.

    (g) Penalty rates

      (i) The rate to be paid to a day worker for ordinary hours worked on a Saturday is 125% and on a Sunday is 200%.

      (ii) A day worker required to work on a public holiday must be paid for a minimum of four hours work at the rate of 250%.”

[6] Clause 27.2(d),in effect,provides that between 1 November and 30 April the ordinary hours for day workers in vineyards are extended by one hour on each week day,from 6.00 am back to 5.00 am. In addition,during that period ordinary hours are extended to include work between 5.00 am and 6.00 pm on Saturdays. The work performed in ordinary hours on Saturdays does however attract a payment of 125% in line with clause 27.2(g)(i).

[7] The application seeks to remove reference in clause 27.2(d) to the period between 1 November and 30 April,and replace it with reference to the period of vintage. In addition,the application proposes to insert a particular definition of vintage for that purpose.

[8] Clause 27.2(d) as amended in accordance with the application would read as follows:

    “(d) For the period of the vintage,the ordinary hours of work for an employee rostered to perform work in the vineyard are to be worked continuously,except for meal breaks,between the hours of 5.00 am and 6.00 pm Monday to Saturday.

    vintage”for the purposes of clause 27.2(d) means a period of no more than six (6) months between the months of November and June that commences on the date when the harvest of wine grapes begins until the date of the last wine grapes are harvested at the site including any time in the period immediately prior to and following for associated activities related to the vintage.”

[9] The effect of the amendment would be to have the additional ordinary hours operate by reference to the particular vintage (harvest of grapes) relevant to the employment,rather than between the set months of November and April.

2. The basis of the application

[10] SAWIA has made the application with the support of the Wine Makers Federation,the Victorian Wine Industry Association,the Western Australian Wine Industry Association,the Queensland Wine Industry Association,the New South Wales Wine Industry Association,the Wine Industry Association Tasmania Ltd and the Wine Grape Growers Association (the wine industry associations).

[11] The wine industry associations contend that the variation is necessary as the Wine award is not achieving the modern awards objective and is not operating effectively,without anomalies or technical problems arising from the Part 10A award modernisation process. The basis for that proposition is that:

      ●Clause 27.2(d) is intended to provide additional flexibility for ordinary hours in vineyards during the period of peak work demand;being the vintage (grape picking season);
      ●The period of 1 November to 30 April was originally found in the former Wine and Spirit Industry (South Australia) Award 2 (the South Australian NAPSA) and this does not reflect the actual vintage periods in some regions of Australia,predominately cooler climate regions and/or when picking some wine varieties;and

The vintage period is generally moving forward each year (by between half and three days) due to climate change.

[12] The wine industry associations provided some evidence and other materials that generally supported these contentions. 3 In that light,they contend that the additional flexibility is not in fact available to some regions and sections of the industry and as a result,the award provision is not meeting its apparent purpose.

[13] The wine industry associations also contend that the reference to the set period in the present clause means that the additional flexibility could be used to extend hours that were not in fact related to vintage. Reference to the actual vintage would in their view be more appropriate and remove the “operational anomaly”that presently exists.

[14] Finally,the wine industry associations contend that the capacity to vary the ordinary hours of work by agreement between the employer and the majority of employees in the relevant workplace or section(s) provided in clause 27.2(e) was not a substitute for amending the other provision. They suggest that the lead times and logistics involved would not facilitate that process and in any event,clause 27.2(d) should operate as apparently intended.

[15] The application also has the support of Business SA,Australian Business Industrial and The Australian Industry Group (AiG). These organisations adopted the submissions of the wine industry associations and also made additional supporting submissions.

[16] AiG also referred to a provision in the Horticultural Award 2010 4 which adopted a flexible approach to the definition of “harvest period”that it said was largely consistent with the intent of this application

3. The basis of the objections

[17] The application is opposed by The Australian Workers’Union (AWU) and United Voice.

[18] The AWU and United Voice contend that the employers have not demonstrated that the Wine award should be varied as part of Transitional Review. They do so on the following basis:

      ●It is necessary for the employer to establish a cogent reason to support a variation in these circumstances;
      ●The award modernisation process involved the AIRC establishing many conditions in modern awards that changed existing conditions and some of these were favourable and unfavourable to the various parties and it was not appropriate to cherry pick a single provision as part of this Review;
      ●The final content of the Wine award largely reflected an agreed position and this was a relevant consideration; 5

There is no evidence that the existing provision is causing difficulties and the proposed variation is unnecessary because clause 27.2(e) already provides a mechanism to alter the spread of hours by majority agreement;

The existing provision was based upon the former South Australian NAPSA and this covered almost 50% of employment in the wine industry and was further modified by the AIRC to include Saturdays in line with the former Western Australian award; 6

No changes in the industry since the Wine award was created had been demonstrated;and

      ●The variation if granted would have the potential to inappropriately advance the interests of the employers above those of employees.

[19] In terms of the actual clause proposed,the AWU and United Voice contend that the definition of vintage would introduce uncertainties and ambiguities that do not currently exist. Further,they contend that the draft definition lacks objectivity and could potentially apply to retrospectively change the entitlements of employees.

[20] United Voice proposed an alternative provision that involved the additional ordinary hours operating between 1 February and 30 June and extending the ordinary hours only on weekdays. 7 This did not however involve any concession that the existing provision should be varied as part of this Review.

4. Consideration

4.1 What must be established to warrant a variation as part of the Transitional Review?

[21] The legislative context for the Transitional 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). 8

[22] The modern awards objective is set out in s.134 of the Fair Work Act 2009 (the FW Act):

    “134 The modern awards objective

    What is the modern awards objective?

    (1) The FWC must ensure that modern awards,together with the National Employment Standards,provide a fair and relevant minimum safety net of terms and conditions,taking into account:

      (a) relative living standards and the needs of the low paid;and

      (b) the need to encourage collective bargaining;and

      (c) the need to promote social inclusion through increased workforce participation;and

      (d) the need to promote flexible modern work practices and the efficient and productive performance of work;and

      (e) the principle of equal remuneration for work of equal or comparable value;and

      (f) the likely impact of any exercise of modern award powers on business,including on productivity,employment costs and the regulatory burden;and

      (g) the need to ensure a simple,easy to understand,stable and sustainable modern award system for Australia that avoids unnecessary overlap of modern awards;and

      (h) the likely impact of any exercise of modern award powers on employment growth,inflation and the sustainability,performance and competitiveness of the national economy.

      This is the modern awards objective.”

[23] The legislative context for the Transitional Review was comprehensively dealt with in a Full Bench decision 9 of 29 June 2012 (the June 2012 Full Bench decision). The Full Bench in Modern Awards Review 2012 - Penalty Rates10 further observed as follows:

    “[8] The June 2012 Full Bench decision construed Item 6 according to its terms,having regard to the context and legislative purpose. Part of that context was the award modernisation process conducted by the former Australian Industrial Relations Commission under Part 10A of the Workplace Relations Act 1996 (Cth) (the WR Act). We deal with the award modernisation process in section 2 of this decision.

    [9] The June 2012 Full Bench decision observed that two points about this historical context were particularly relevant:

      “The first is that awards made as a result of the award modernisation process are now deemed to be modern awards for the purposes of the FW Act (see Item 4 of Schedule 5 of the Transitional Provisions Act). Implicit in this is a legislative acceptance that the terms of the existing modern awards are consistent with the modern awards objective. The second point to observe is that the considerations specified in the legislative test applied by the Tribunal in the Part 10A process is,in a number of important respects,identical or similar to the modern awards objective which now appears in s.136...”

    [10] The June 2012 Full Bench decided that two other textual considerations were also relevant. The first is that subitem 6(2)(b) of Schedule 5 directs specific attention to whether modern awards ‘are operating effectively,without anomalies or technical problems arising from the Part 10A award modernisation process.’No such legislative direction is reflected in the provisions which deal with the 4 yearly review of modern awards (s.156 of the Act).

    [11] The second textual consideration is that,Item 6 does not prescribe how the Commission is to be constituted for the purpose of conducting the Transitional Review. This may be contrasted with the 4 yearly reviews provided in s.156 and the award modernisation process under Part 10A of the WR Act,both of which are to be conducted by a Full Bench. The fact that the Transitional Review of a modern award may be conducted by a single member also suggests that the legislature contemplated that the Transitional Review would be more confined in scope that the 4 yearly reviews in s.156.

    [12] These considerations led the June 2012 Full Bench to conclude as follows:

      “[91] It is important to recognise that we are dealing with a system in transition. Item 6 of Schedule 5 forms part of transitional legislation which is intended to facilitate the movement from the WR Act to the FW Act. The Review is a “one off”process required by the transitional provisions and is being conducted a relatively short time after the completion of the award modernisation process. The transitional arrangements in modern awards continue to operate until 1 July 2014. The fact that the transition to modern awards is still occurring militates against the adoption of broad changes to modern awards as part of the Review. Such changes are more appropriately dealt with in the 4 year review,after the transition process has completed. In this context it is particularly relevant to note that s.134(1)(g) of the modern awards objective requires the Tribunal to take into account:

        “the need to ensure a simple,easy to understand,stable and sustainable modern award system for Australia . . .”

      [99] To summarise,we reject the proposition that the Review involves a fresh assessment of modern awards unencumbered by previous Tribunal authority. It seems to us that the Review is intended to be narrower in scope than the 4 yearly reviews provided in s.156 of the FW Act. In the context of this Review the Tribunal is unlikely to revisit issues considered as part of the Part 10A award modernisation process unless there are cogent reasons for doing so,such as a significant change in circumstances which warrants a different outcome. Having said that we do not propose to adopt a “high threshold”for the making of variation determinations in the Review,as proposed by the Australian Government and others.

      [100] The adoption of expressions such as a “high threshold”or “a heavy onus”do not assist to illuminate the Review process. In the Review we must review each modern award in its own right and give consideration to the matters set out in subitem 6(2). In considering those matters we will deal with the submissions and evidence on their merits,subject to the constraints identified in paragraph [99] above.”

    [13] We now return to Item 6 of Schedule 5.

    [14] Under subitem 6(3) the Commission has a broad discretion to vary any of the modern awards in any way it considers necessary to remedy any issues identified in the Transitional Review. However,subitem 6(4) provides that in making such a variation the Commission must take into account the modern awards objective in s.134 of the Act,and,if varying modern award minimum wages,the minimum wages objective in s.284.”

[24] The Full Bench in that decision also stated:

    “[118] In assessing the evidence in these matters we have also been mindful of the approach adopted by the Full Bench in Victorian Employers’Chamber of Commerce and Industry. Although in a different statutory context,the following observation is apposite to our task:

      “[13] In National Retail Association Limited (2010) 199 IR 258 a Full Bench upheld a decision of Vice President Watson rejecting an application under s.157(1) on the basis that there was insufficient evidence to establish that the variation sought was necessary to achieve the modern awards objective.

      [14] That is also the case with the evidence here. Although the rules of evidence do not apply to Fair Work Australia that means only that there is less constraint on Fair Work Australia,than exists in the Courts,on the range of evidence that it may admit. The Tribunal nevertheless requires evidence (or uncontested submission - R v Commonwealth Conciliation and Arbitration Commission and Others;Ex parte The Melbourne and Metropolitan Tramways Board (1965) 113 CLR 228 at 243 (per Barwick CJ) and 252 (per Menzies J)) sufficient to allow it to make any jurisdictional findings that condition the exercise of power sought in the originating application.”

    [119] The need to advance probative evidence in support of an application to vary a modern award is particularly important in the context of the Transitional Review. The Transitional Review does not involve a fresh assessment of modern awards unencumbered by previous Tribunal authority,and,as we set out in section 2 of this decision,many of the aspects of the applications before us were the subject of consideration by the AIRC in the award modernisation process. It is also important to recognise that we are dealing with a system in transition. The transitional arrangements in modern awards continue to operate until 1 July 2014. The fact that the transition to modern awards is still occurring militates against the adoption of broad changes to modern awards as part of the Transitional Review. Such changes are more appropriately dealt with in the 4 year review,after the transition process has completed. As we have indicated the Transitional Review is narrower in scope than the 4 yearly reviews provided in s.156 of the Act and,as the June 2012 Full Bench stated,in the context of the Transitional Review:

      “...the Tribunal is unlikely to revisit issues considered as part of the Part 10A award modernisation process unless there are cogent reasons for doing so,such as a significant change in circumstances which warrants a different outcome.”

[25] I have applied this approach to the determination of this application.

[26] The terms of clause 27.2(d) were considered and included by the AIRC as part of the Part 10A award modernisation process. The clause was inserted in the Wine award by the AIRC in the present form following the provision of a largely agreed draft from the major parties containing a marginally different proposal. 11 The SAWIA sought a variation to reduce the penalties for weekend vineyard work during the “vintage”as part of the award modernisation process12 and BSA raised issues concerning the earlier exposure draft award issued by the AIRC with respect to ordinary hours and weekend penalties that were different than the South Australian NAPSA.13

[27] The Full Bench of the AIRC indicated as follows when making the Wine award:

    “[148] We have made a number of changes to the exposure draft of the Wine Industry Award 2010. ... ... The ordinary hours of work have been extended for employees rostered to perform work in the vineyard between November and April and shift definitions have been altered as requested by major employer groups to overcome potential anomalies. ... ...” 14

[28] Although none of the proposals raised by the parties during this process concerned the operation of the “vintage”period itself,it is appropriate to consider whether there are cogent reasons to support a variation as part of the Transitional Review. I note that no party in this matter contended otherwise in relation to this application. 15

[29] Further,although the Full Benches in each of the above decisions concerning the Transitional Review have noted the relatively narrow scope of the Review,each has in effect emphasised that a broad discretion is established by Item 6. Importantly,although cogent reasons are required,it is fundamentally the considerations of the Transitional Provisions Act that must be applied in that regard;namely,whether 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.

4.2 Is the Wine award not meeting the modern awards objective or is it operating with technicalities or anomalies resulting from the award modernisation process relevant to this application?

[30] It is apparent that clause 27.2(d) was inserted into the Wine award to provide additional ordinary hours arrangements in connection with work performed in vineyards during vintage. This is common ground between the parties and accords with the history of the provision and its predecessors.

[31] There is sufficient evidence to confirm that the scope of 1 November to 30 April will cover the vintage in most but not all regions and in relation to many grape types. Further,where the period is not covering the vintage,the vintage will generally start later and finish beyond 30 April in each year. This is,in part,the result of a slow but steady general delay in the vintage due to climatic conditions,but more particularly,a factor of cooler climate grape growing.

[32] The operation of the clause in question does allow the scheduling of the extended ordinary hours in vineyards even where that work is not directly connected with vintage. It need only fall within the nominated period.

[33] Although the timing of vintage may have marginally shifted since the making of the Wine award in 2009,these factors were all present at that time,including under the former South Australian NAPSA.

[34] To some degree therefore,clause 27.2(d) is not fully addressing the apparent intention of the provision. That is,the defined period is,in effect,a proxy for the vintage period that comprehends most but not all of the variations in vintage periods covered by the Wine award. It is also capable of being applied to work outside of the vintage,although the extent that this happens in practice is not clear.

[35] Provided that it could operate fairly and with clarity,the concept of having the period defined by reference to an actual vintage period has much to recommend it. It would be more relevant to the actual circumstances,able to adjust as conditions change,and more directed at the reason for the provision. This latter aspect in particular would be of benefit to all interests.

[36] However,given the absence of evidence about how the clause is being applied in practice,is this sufficient to demonstrate that the Wine award is not meeting the modern awards objective or is operating with technicalities or anomalies resulting from the award modernisation process relevant to this application? In this regard I have had regard to the need for evidence of certain elements in the Transitional Review as discussed in Victorian Employers’Chamber of Commerce and Industry16

[37] In forming a view on that issue,I also need to assess the import of clause 27.2(e) and its capacity to allow for the variation of ordinary hours by majority agreement with the employees. This is a relevant consideration as it does provide some additional flexibility and this may also bear upon whether the change should be made as part of this Transitional Review. However,the award makers intended that this flexibility would operate in addition to the vineyard provision in question;and on that basis the existence of clause 27.2(e) is not an answer to this application in itself.

[38] The modern awards objective requires the establishment and maintenance of a safety net that is fair and relevant having regard to the various considerations established by s.134(1) of the FW Act. These considerations include relative living standards and the needs of the low pay,the encouragement of enterprise bargaining,the circumstances of business in terms of flexibility and productivity,and the general objectives for the award safety net to be simple,stable and sustainable. These considerations also include the likely impact on employment growth,inflation and the national economy,and the promotion of social inclusion through increased workforce participation.

[39] The proposed variation does not however impact upon minimum wages 17 under the award. In that light,it is not necessary to specifically consider the minimum wage objective in s.284 of the FW Act.

[40] The concept of an anomaly or technical problem for present purposes was discussed in the June 2012 Full Bench decision in the following terms:

    “[40] There is a degree of overlap between the matters to which ss.159 and 160 are directed and what might be regarded as “anomalies or technical problems”within the meaning of subitem 6(2)(b) of Schedule 5. But in some respects the terms of subitem 6(2)(b) are more limited in that it directs attention to whether modern awards “are operating effectively,without anomalies or technical problems arising from the Part 10A award modernisation process. Hence the “anomalies or technical problems”referred to are those which have arisen from the Part 10A process. Sections 159 and 160 of the FW Act are not so confined.”

[41] The incidence of vintages occurring outside of the nominated period is not in dispute. The consequences of this in terms of the intended flexibility not lining up with the actual vintage are also self evident to a large degree because they operate by virtue of the provision itself. The evidence is sufficient to confirm that the award provision is not fully meeting its apparent purpose and will operate differently in various circumstances without good reason. In reaching that conclusion,I am mindful that the proposed variation to the award does not involve an alteration to substantial rights and obligations,but rather the proposed adjustment as to how an existing provision is to be framed. 18

[42] Accordingly,the current provision does create an anomaly in its application. Although this also occurred to some degree under the former South Australian NAPSA,the inclusion of clause 27.2(d) in the Wine Award with its national coverage has meant that it arose from the Part 10A process.

[43] On balance,I am presently minded to the view that cogent reasons do exist that could warrant a variation of clause 27.2(d) of the Wine award. However,as will become clear,there are issues arising from the proposed variation that could impact upon these findings and more particularly,whether it is appropriate to make the variation as part of the present review. These would need to be considered before any final decision was made by the Commission on the application.

4.3 Is the variation necessary and appropriate in the circumstances?

[44] As the June 2012 Full Bench decision confirmed, 19 subitem 6(4) of Schedule 5 requires that the Commission,in making any award variation as a result of the conduct of the Transitional Review,take into account the modern awards objective in s.134(1) of the FW Act. The effect of that requirement is that regard must be had to a range of merit considerations as set out earlier in this decision.

[45] Given that the vintage period would continue to be limited to six months in line with the current provision,and would not involve the extension of the ordinary hours flexibility beyond the intended operation of that provision,I consider that the fundamental terms of clause 27.2(d) should not be altered beyond that necessary to achieve the objective. I also consider,largely for the same reasons,that the interests of the employees are not adversely impacted by the intent of the proposed variation. That is,the variation would not impact upon relative living standards or negatively impact the needs of the low paid under this award.

[46] To some degree there is a capacity to deal with the issue through enterprise bargaining. This is a consideration that would tend to suggest that the amendment not be made however,the Act clearly intends that the modern awards themselves are to be fair and relevant.

[47] In terms of stability,this is also a factor emphasising the need for cogent reasons to exist before amending a modern award. In this regard,I do however note that unlike many other provisions of the award,clause 27.2(d) is not subject to transitional arrangements which would have otherwise added complexity to any potential change to the award.

[48] The balance of the considerations in s.134(1) are either neutral or are supportive of the variation proposed.

[49] There are however some issues associated with the wording of the proposed provision that impact upon these findings and influence whether it is appropriate to make the variation as part of the Transitional Review. Firstly,although no doubt such work exists,the reference to “associated activities related to the vintage”tends to introduce uncertainty and subjectivity. I am inclined to the view that the definition of vintage should be linked to the verifiable and objective fact of first and last picking of grapes.

[50] Further,the absence of any notification of the commencement of the vintage could lead to,in effect,the application of the provision retrospectively,as suggested by United Voice. This was raised during the course of the hearing but not extensively dealt with by the parties.

[51] The award provision would also need to operate appropriately in the context of employers and employees who undertake contract harvesting as is common in this industry. Presumably,the vintage would operate at each site where harvesting of grapes under the Wine award was being undertaken. I have not previously raised this issue with the parties and I would need to be satisfied that any practical issues could be resolved as part of an amended clause without creating uncertainties or other anomalies.

[52] Provided these issues can be dealt with,I would be minded to vary the Wine award in relation to clause 27.2(d) as part of the Transitional Review. If not,the matter should be the subject of more detailed consideration in the subsequent review to be conducted by the Commission. 20

5. Conclusions

[53] I need to hear further from the parties on the issues that I have raised. It would also be appropriate for the parties to seek to agree upon a proposal that would improve the operation of the award within the parameters of the decision to date.

[54] The parties should consult in light of this decision.

[55] Any revised proposal from the Wine industry employers is to be lodged with the Commission (and provided to the other parties appearing in this matter) by 15 November 2013.

[56] Responses to any revised proposal are to be lodged with the Commission (and provided to the other parties appearing in this matter) by 29 November 2013.

[57] I will finally determine the matter in light of all of the material then before the Commission.

Appearances:

S Hills for the South Australian Wine Industry Association Incorporated,the Wine Makers Federation,the Victorian Wine Industry Association,the Western Australian Wine Industry Association,the Queensland Wine Industry Association,the New South Wales Wine Industry Association,the Wine Industry Association Tasmania Ltd and the Wine Grape Growers Association.

H Wallgren for the South Australian Employers Chamber of Commerce and Industry Inc T/as Business SA and Australian Business Industrial.

G Vaccaro for The Australian Industry Group.

L Cottam for The Australian Workers’Union.

N Swancott for United Voice.

Hearing details:

2013

July 24

October 3.

 1  [2009] AIRCFB 826,[2009] AIRCFB 943.

 2  AN150168.

 3  Exhibits SAWIA 1 - 4.

 4  Clause 3.1.

 5  Children’s Services Award 2010 [2012] FWA 9296 at [67].

 6  Wine Industry (WA) Award 2005.

 7  United Voice 1 at 27.

 8  Reference in the Transitional Act to FWA is taken to mean the Fair Work Commission.

 9  Modern Awards Review 2012 [2012] FWAFB 5600.

 10  [2013] FWCFB 1635.

 11  The parties’draft referred to an extended period of ordinary hours between 1 November and 20 April but did not limit that extension to work in the vineyards and did not include Saturday work in ordinary time.

 12  Submission dated 12 June 2009.

 13  Submissions dated 12 June 2009.

 14  [2009] AIRCFB 826 at [148].

 15  . See also Modern Awards Review 2012 - Award Flexibility [2013] FWCFB 2170 at [11] and [12].

 16  Victorian Employers’Chamber of Commerce and Industry [2012] FWAFB 6913 at [13] and [14].

 17  Item 6(4) of the Transitional Act and s.284(3) of the FW Act.

 18  This is akin to the circumstances faced by the Full Bench when dealing with the issue of compensation for public holiday work under the General Retail Industry Award 2010 as considered in Modern Award Review 2012 - Public Holidays [2013] FWCFB 2168 at [175].

 19  [2012] FWAFB 5600 at [63].

 20  The four yearly review required by s.156 of the FW Act.

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Title:
MA000090 - Decision - 31 Oct 2013
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MA000090 - Decision - 31 Oct 2013
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