MA000022 - Decision - 21 Oct 2013

[2013] FWC 8141

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

Building Services Contractors Association of Australia,New South Wales Division and others
(AM2012/23 and others)

Cleaning services

COMMISSIONER CRIBB

MELBOURNE,21 OCTOBER 2013

Modern Awards Review 2012 - application to vary the Cleaning Services Award 2010 - call back - broken shift - consultation regarding change of contract - consent determination.

Introduction

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

[2] This decision concerns four applications to vary the Cleaning Services Award 2010 1 under Schedule 5,Item 6 of the Transitional Act and 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.

[3] The applications to vary the Cleaning Services Award 2010 are as follows:

    ●AM2012/23—application by the Building Services Contractors Association of Australia NSW (BSCAA);

    ●AM2012/33—application by United Voice;

    ●AM2012/209—application by Berkeley Challenge Pty Ltd T/A Spotless Catering;and

    ●AM2012/292—application by United Voice.

Proceedings

[4] Conferences were held with the interested parties on 5 December 2012 and 23 January 2013. As a result of the conferences and further extensive discussions between the parties,certain items were no longer pressed. The parties reached agreement in respect of the remaining matters on the basis of a consent determination. United Voice,on behalf of the other parties,provided the Commission with a draft agreed determination.

[5] During the conferences and discussions between the parties,the BSCAA no longer sought to press its application in respect of clause 29.2—definition of shift worker,in matter AM2012/23. As this was the only item in this application that was capable of being dealt with by a single member,the determination 2 that will be issued in conjunction with this decision will not deal with application AM2012/23.

[6] Other parties also,as part of the discussions,decided to no longer press their applications with respect to certain items. This resulted in the agreed draft determination covering the following applications and items only:

    ●AM2012/33—call back and meetings (new clause 24.6);

    ●AM2012/209—consultation regarding change of contract (new clause 9.5);and

    ●AM2012/292—broken shift allowance (replacing clause 17.1).

Relevant legislation

[7] Schedule 5,Item 6 of the Transitional Act provides:

    “(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.

    (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.

    (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] In conducting the review,consideration has also been given to the guidance provided in statements issued by the President and in the decisions of the various relevant Full Benches.

Consideration

[9] The Commission is assisted by the parties having agreed to the terms of a draft determination which was provided to the Commission on behalf of all of the parties. The extensive work of the interested parties in reaching agreement on the basis of a consent determination is noted. This is a relevant consideration in the exercise of the discretion in conducting the review.

[10] On the basis of the content of the conferences before the Commission and the consent of the interested parties in these applications,the Commission is satisfied that it is appropriate to issue a determination in the terms agreed by all of the parties. A separate determination 3 in these terms will be issued in conjunction with this decision.

 1  MA000022.

 2  PR543432.

 3  PR543432.

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<Price code A, MA000022  PR543431>

About this document
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Code:
PR543431D
Title:
MA000022 - Decision - 21 Oct 2013
Effective:
21 Oct 2013
Updated:
24 Oct 2013
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MA000022 - Decision - 21 Oct 2013
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