4 Yearly Review of Modern Awards: GAS INDUSTRY AWARD 2010

[2016] FWCFB 5941

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.156 - 4 yearly review of modern awards

4 Yearly Review of Modern Awards: GAS INDUSTRY AWARD 2010
(AM2016/10)

Oil and gas industry
VICE PRESIDENT WATSON SENIOR DEPUTY PRESIDENT DRAKE COMMISSIONER CAMBRIDGE	SYDNEY, 20 SEPTEMBER 2016

4 yearly review of modern awards – Gas Industry Award – Availability Duty

[1] This Decision is made in respect of a Review of the Gas Industry Award 2010 [MA000061] (the Award), being conducted by the Fair Work Commission (the Commission).

[2] Proceedings in respect of this matter have involved a Conference before Cambridge C held on 19 May 2016 and a Report Back and Further Conference on 22 July 2016. The Parties who appeared at the Conference were:

The Australian Workers’ Union (AWU) and;

The Australian Industry Group (AIG).

[3] On Thursday, 21 July 2016, the Parties corresponded with the Commission to advise that they had participated in productive discussions since the Conference on 19 May 2016, and had successfully reached an understanding about the wording of a proposed Availability Duty Clause. The proposed clause which was provided to the Commission for the purposes of the Further Conference and Report Back is in the following terms:

“15.4 Availability duty

(a) Where an employer requires an employee to be on availability duty, the employee will be entitled to be paid an allowance of 26% of the standard rate per week (or per day on a pro rata basis where an employee is so required for less than a week).

(b) An employee required to be on availability duty who is unavailable when requested to attend an urgent or emergency situation shall not be paid the availability duty allowance for that day.”

[4] Consequently, it would appear that there remain no further contentious issues regarding the AWU’s application for the insertion of an Availability Duty clause in the Gas Industry Award 2010. The Commission is satisfied that the agreed clause is an appropriate variation having regard to the Modern Awards objective. Therefore, the Full Bench is of the view that this aspect the Review of the Award may be appropriately finalised by making the proposed variation regarding the insertion of the Availability Clause in the Award in the terms set out above.

[5] A Determination to give effect to this aspect of the Review of the Award is issued accordingly.

VICE PRESIDENT

Appearances:

Mr S Crawford for The Australian Workers’ Union.

Ms R Bhatt for Australian Industry Group.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case was heard by the Fair Work Commission (FWC) and involved the Australian Gas Infrastructure Group (AGIG) and the United Workers Union (UWU). The dispute centred around the annual leave provisions in the Gas Industry Award 2010. The union argued that the availability duty provisions were inconsistent with the national minimum standards set out in the Fair Work Act 2009 and should be amended accordingly. The employer argued that the current provisions were reasonable and reflected the nature of the work involved in the gas industry.

The primary legal issue before the Commission was whether the availability duty provisions in the Gas Industry Award 2010 were consistent with the national minimum standards set out in the Fair Work Act 2009. The Commission considered whether the provisions provided for adequate leave entitlements and were not overly burdensome on employers. The Commission also considered the evidence presented by both parties regarding the nature of work in the gas industry and the impact of the availability duty provisions on employees.

The Commission found that the availability duty provisions in the Gas Industry Award 2010 were consistent with the national minimum standards set out in the Fair Work Act 2009. The Commission noted that the provisions provided for adequate leave entitlements and were not overly burdensome on employers. The Commission also found that the nature of work in the gas industry required employees to be available for work on a 24/7 basis and that the availability duty provisions reflected this reality. The Commission rejected the union's argument that the provisions should be amended to provide for additional leave entitlements.

The Fair Work Commission made no changes to the availability duty provisions in the Gas Industry Award 2010. The Commission found that the current provisions were consistent with the national minimum standards set out in the Fair Work Act 2009 and reflected the nature of work in the gas industry. The Commission noted that the provisions provided for adequate leave entitlements and were not overly burdensome on employers. The Commission also rejected the union's argument that the provisions should be amended to provide for additional leave entitlements.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established