FWC 9683
FAIR WORK COMMISSION
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
WINE INDUSTRY AWARD 2010
ADELAIDE,17 DECEMBER 2013
Application to vary award as part of transitional review - hours of work for vineyard employees during vintage - preliminary decision made that cogent reasons existed for the consideration of an amendment - further submissions sought - competing proposals now made - award to be varied - variation consistent with the modern awards objective.
1. The October 2013 decision
 This decision concerns the finalisation of an application made by the South Australian Wine Industry Association Incorporated (SAWIA) to vary the Wine Industry Award 2010 1 (the Wine award). The application was 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).
 The application concerns clause 27.2(d) which,in effect,presently 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 6.00am back to 5.00am. In addition,during that period ordinary hours are extended to include work between 5.00am and 6.00pm 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).
 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. 2
 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.
 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.”
 The application has been supported by a wide range of employer organisations but opposed by two employee organisations.
 On 31 October 2013,I issued a preliminary decision  FWC 7751 (the October decision) in which I found that:
“ 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.
... ... ...
 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.
... ... ...
 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.
 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.
 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.
 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.”
 As a result of these findings,I invited the parties to hold further discussions and provided the opportunity for further submissions. I also indicated that I would determine the application based upon all of the materials then before the Commission.
 This decision should be read in conjunction with the October decision.
2. The further submissions
 As a result of the October decision,many of the organisations appearing in these proceedings held constructive discussions and as a result,some of the issues have been narrowed. There remain however competing proposals.
 The SAWIA,on behalf of the various wine industry organisations,proposed a modified definition of vintage,should its original formulation not be adopted by the Commission. The modified definition is as follows:
“Vintage for the purposes of clause 27.2(d) means a period of no more than six (6) months between the months of 1 November to 30 June that commences on the date when the harvest of wine grapes begins until the date when the last wine grapes are harvested at the site.”
 United Voice and the Australian Workers’Union (AWU) proposed an alternative variation as follows:
“Replace clause 27.2(d) with the following:
(d) Despite clause (c) above:
(i) 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 5.00am and 6.00pm Monday to Saturday.
(ii) For the purposes of this clause,“vintage”means a period not exceeding six months between the months of November and June that starts on the date when the harvest of wine grapes begins at a particular site and ends on the date the last wine grapes are harvested at that site. The employer must,within a reasonable period of each event,give written notification to employees of the start of the vintage and the finish of the vintage.
(iii) The change in the spread ordinary hours of work for employees provided for in this clause will take effect from the beginning of the first pay period to commence on or after the date of the start of the vintage,and will end at the conclusion of the first full pay period commencing on or after the date of the end of the vintage.
(iv) To avoid doubt,the provisions of this clause also apply to employees of employers harvesting grapes under contract and their employers.”
 Business SA and Australian Business Industrial advanced a modified version of the United Voice and AWU proposed sub-clause (d) in the following terms:
“(d) Despite clause (c) above:
(i) For the period of 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 5.00am and 6.00pm Monday to Saturday.
(ii) For the purposes of this clause,“vintage”means a period not exceeding six months between the months of November and June that starts on the date when the harvest of wine grapes begins at a particular site and ends on the date the last wine grapes are harvested at that site.”
 The Australian Industry Group maintained its support for the variation originally proposed by the SAWIA as set earlier in this decision.
3. The issues to be determined
In terms of the proposals now advanced there are many common elements. However the major differences include the following matters.
3.1 Whether the definition of vintage should be considered by reference to each site
 There would be some uncertainty in the provision if this issue was not clarified. I consider that the reference to each site (vineyard) is an appropriate concept and will operate in a practical fashion. This is particularly the case given the coverage of contract grape harvesting.
 The commencement of the harvest at a site will trigger the application of the extended ordinary hours provisions. It is likely that vineyards within a region will commence harvesting at around the same time and once commenced at each site,the provisions will apply,subject to the other limits of the definition,until the harvest is completed.
 This approach does have some implications for the remaining issues.
3.2 Whether the coverage of vintage should extend to associated activities
 The broad coverage of associated activities raises concerns about the scope and certainty of the provision. In particular,the inclusion of associated activities after the harvest is more problematic given the nature and purpose of the harvest.
 The proposed vintage provisions are not the only flexibility available to the employers that might be applied in this area. The majority support “variation”contemplated by clause 27.2(e) of the Wine award,the potential application of individual flexibility arrangements 3 and the making of an enterprise agreement must also be considered in this context. Further,the desire for appropriate simplicity and certainty found within the modern award objective4 leads me to the view that the vintage provision should operate,subject to the other limitations of the provision,according to a definite event.
 The variation being considered is also designed to better reflect the operational requirements of the vintage for the wine industry as now sought by them. This also involves making the extended hours provisions more available in practice to sections of the industry that are harvesting outside of the current scope of clause 27.2(d) of the award.
 On this basis,I consider that the alternative definition advanced by almost all of the parties on this element is preferable and is appropriate. That is,the vintage for present purposes is to be defined by reference to the start and conclusion of the harvest.
3.3 Whether there should be an obligation to notify the commencement of the vintage
 The concept is proposed by United Voice and the AWU on the basis of providing some notice to employees and confirmation that the vintage provisions applied for record keeping and future audit purposes. I also raised the prospect of potential retrospectivity in the October decision. The employers oppose the concept on the basis that it would introduce unnecessary red tape and is not necessary as part of this provision.
 The concept of moving the vintage provision to become more relevant to the actual harvest means that it will now not simply operate by reference to fixed dates. This creates the need to be clear when the vintage period actually applies for the purposes of establishing,and auditing,entitlements and obligations. This need should be met in a manner that has regard to the modern awards objective and the purpose of the provision
 Given that the vintage will operate by reference to actual events that will be known to all involved,there is no need to formally notify the employees. However,a record of the start and finish of the vintage should be made and kept with the relevant time and wages records for future purposes.
3.4 Whether the vintage provisions should take effect in each case by reference to the first pay period on or after the start and cessation of the vintage
 The existing provision operates solely by reference to single dates;namely 1 November to 30 April in each year. United Voice and the AWU propose that the new vintage provisions should apply by reference to the first pay period commencing on or after the start and conclusion of each vintage.
 Given the approach that I have determined to the scope and definition of the vintage,I do not consider that it is necessary or appropriate to have it apply by reference to the first pay period.
3.5 Whether a specific provision should apply given the coverage of contract grapes harvesting
 I raised this issue in the October decision to reinforce that contract grape picking will be covered by any new provision in the Wine award and to ensure that the parties had considered that context when making any final submissions.
 The variation that I will make to the award will have its focus upon the vintage at each particular site (vineyard). On that basis,it is not necessary to include additional provisions that confirm the coverage of contract harvesting or to further modify the vintage provisions that are to now apply.
3.6 The relationship with the proposed consultative obligations to be inserted into the wine award
 Some parties made reference to the proceedings associated with the inclusion of a model consultation clause within the Wine award. This arises in the context of changes to the Act 5 which require the Commission to insert a new provision dealing with changes to regular rosters or ordinary hours of work.6
 Due to the nature of the consultation provisions contemplated by the Act,and the terms of the variation I have determined,I have not found it necessary to await the decision in that matter.
 In all of the circumstances I am satisfied that it is appropriate to vary the Wine award as part of this Transitional Review. The variation of the award is warranted and will ensure that it is meeting its apparent objective in relation to the extended vineyard hours provisions, 7 and in so doing,better meeting the modern awards objective.
 The variation will generally be in line with the alternative version proposed most recently by the SAWIA with modifications necessary to give effect to the outcomes determined above.
 I have issued a determination 8 varying the Wine award in conjunction with this decision.
 I have considered when the determination should take effect given that the existing “vintage”provision automatically operates from 1 November in each year. The new provision will operate on a different conceptual basis and creates at least one new obligation. There is also some benefit in providing a prospective date of effect given the time of the year and the need for the new provisions to be known within the industry.
 Based upon the material before the Commission,it is possible that some employers are utilising the existing extended ordinary hours without being in a vintage as will be defined by the new clause. It is also likely that most regions in Australia will not have yet commenced picking grapes. In these circumstances,some minor transitional provisions are appropriate. These will provide that any employer presently utilising the extended ordinary hours outside of the actual vintage may continue to do so until the vintage commences (and the new provision effectively becomes available).
 Where the actual vintage has already commenced under the existing provision,there would appear to be no difficultly in terms of the application of the new concept from the date I have determined.
 I note that the minor transitional provision that I will include could be removed as part of the 2014 review of modern awards 9 as it will,by that time,have no further work to do.
 Accordingly,the determination establishes that the variation will come into effect on and from 20 January 2014. I further note that the effect of the Act is that the determination will take effect in relation to employees at the start of each employee’s first full pay period that starts on or after that date. 10
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.
2  FWC 7751 at .
3 Clause 7 Award Flexibility of the Wine award.
4 S.134 of the FW Act.
5 Section 145A.
6 See  FWCFB 8728.
7 See  FWC 7751 at .
9 The four yearly review required by s.156 of the FW Act.
10 S.165 of the FW Act.
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