MEAT INDUSTRY AWARD 2010

[2015] FWCFB 579

[2015] FWCFB 579

FAIR WORK COMMISSION

DECISION

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

MEAT INDUSTRY AWARD 2010
(AM2014/78)

Meat industry
VICE PRESIDENT WATSON DEPUTY PRESIDENT KOVACIC COMMISSIONER ROE	MELBOURNE, 3 MARCH 2015

Four yearly review of modern awards - Meat Industry Award 2010 - Fair Work Act 2009 ss.134, 138, 156.

Introduction

[1] On 11 November 2014 the President issued a direction that this Full Bench hear and determine the substantive issues raised during the 2014 four yearly review of modern awards with respect of the Meat Industry Award 2010 (the Award). The award review is required to be conducted in accordance with s.156 of the Fair Work Act 2009 (the Act).

[2] Other provisions of the Act are also relevant including s.138 and the modern awards objective in s.134.

[3] We have dealt with these provisions and the approach to matters of this type in relation to the four yearly review for the Security Services Industry Award. 1

We apply the approach outlined in that decision to the determination of the issues in relation to this Award.

[4] The issues that we have been directed to determine are set out in Schedule A to the President’s directions as amended on 18 November 2014. The issues concern the payment for work on public holidays, transfer from one category of employment to another, the calculation of overtime and shift allowances for short term shifts. We will consider each of these matters in turn.

Payment for work on public holidays

[5] This matter arises from a review of clause 40.2 of the Award which states:

“40.2 Payment for work on public holidays

Employees including casuals who work on:

(a) Christmas Day and Anzac Day will be paid at double the ordinary hourly rate for all time worked;

(b) Good Friday will be paid for all time worked at the rate of time and a half for the first four hours and double time thereafter based on the ordinary hourly rate; and

(c) any other public holiday will be paid at time and a half for the first two hours and double time thereafter based on the ordinary hourly rate.

For full-time employees, the above payments will be in addition to the ordinary weekly, daily or hourly rate of pay as appropriate.”

[6] The genesis of the matter is a concern raised by The Australasian Meat Industry Employees Union about the reference to full time employees in the final paragraph of the clause. The Australasian Meat Industry Employees Union seeks to broaden the clause to cover all other categories of employees apart from casuals by rewording the final paragraph. The Australian Meat Industry Council accepts the extension of the clause to part-time employees and daily hire employees but contends that the clause should not apply to employees engaged under an incentive payment scheme as separate provision for public holidays for those employees is provided in clause 24. Other categories of workers were previously provided for in the pre-reform awards.

[7] The Australian Meat Industry Council submits that the wording of the final paragraph of the clause should be amended to read:

“For all employees other than casuals, the above payments will be in addition to the ordinary weekly, daily or hourly rate of pay as appropriate, calculated by reference to the ordinary hourly rate as defined in clause 3.2(a).”

[8] In our view the problem identified by the parties and agreed to be remedied by way of a variation to the Award should be remedied. It appears to us that the variation will ensure that the Award meets the modern awards objective because it enhances the fairness and consistency of the Award. The wording proposed by the Australian Meat Industry Council is appropriate in our view because it achieves the extension of the entitlement only for those categories of employees not covered by other provisions. We approve the variation of the Award in line with the Australian Meat Industry Council’s proposal.

Transfer from one category to another

[9] The Australasian Meat Industry Employees Union seeks to amend clause 11.4 of the Award in order to place a restriction on the ability to transfer employment. It seeks to insert the following sentence at the end of the clause:

“Nothing in clause 11.4 authorises an employer to require an employee to transfer to casual employment.”

[10] The proposed variation was agreed to by the Australian Meat Industry Council during the private conferences held between The Australasian Meat Industry Employees Union and the Australian Meat Industry Council. The Australian Industry Group supports the proposed variation.

[11] We are satisfied that the change will provide greater clarity and is necessary to achieve the modern awards objective.

Overtime provision

[12] The Australian Meat Industry Council seeks to amend clause 36.1(a) of the Award in order to clarify the manner in which overtime is calculated. It proposes that the words ‘on any day’ be inserted after the words ‘ordinary working hours’, so that the clause would then read:

“All time worked outside ordinary working hours on any day as prescribed in clause 31—Hours of work (or in the case of a shiftworker, outside the hours rostered as ordinary shiftwork hours in accordance with clause 34—Rostering) will be deemed to be overtime and be paid for at time and a half for the first three hours and double time thereafter.”

[13] The Australian Meat Industry Council submits that the words ‘on any day’ appeared in the overtime clauses in the relevant predecessor awards but were inadvertently omitted when the modern Award was released. Without the words, there is some ambiguity as to how and when the overtime provisions commence to operate. It is unclear whether they operate after ordinary hours are completed each day, or at the completion of ordinary hours for another period of time such as a week. The Australian Meat Industry Council submits that the variation is necessary to correct this oversight, will remove an ambiguity and adopt the longstanding position under the predecessor awards.

[14] The Australasian Meat Industry Employees Union supports the proposed amendment. The Australian Industry Group agrees to the proposed re-drafting of the clause.

[15] We are satisfied that the variation is necessary to achieve the modern awards objective.

Shift allowances for short term shifts in meat processing establishments

[16] The Australasian Meat Industry Employees Union seeks to delete the exclusion of meat processing establishments in clause 33.9(e) of the Award. The effect of this change would be to extend the higher shift allowances in the clause, when afternoon or night shifts do not continue for at least five successive shifts, to meat processing establishments. Currently this provision only applies to the other types of establishments, principally manufacturing and retail establishments. The Australasian Meat Industry Employees Union submits that there is no logical reason for this differentiation and suspects that the exclusion was the result of inadvertence. It has drawn our attention to a number of other manufacturing awards, including the Manufacturing and Associated Industries and Occupations Award 2010, which contain a clause of a similar nature with general application to operations covered by the Award.

[17] The Australian Meat Industry Council does not oppose the variation. However The Australian Industry Group, which primarily represents employers in the meat processing sector, opposes the variation and submits that the history of the clause explains why the higher shift penalty does not apply to the meat processing sector. It submits that the pre-existing awards applying to that sector did not contain the higher rate and the Award Modernisation Full Bench made an obvious decision to confine its application to types of operations to which it previously applied. The Australian Industry Group submits that The Australasian Meat Industry Employees Union has not established that the variation is necessary to achieve the modern awards objective.

[18] In our view the clause under consideration is a common award clause and has commonly applied in the meat industry. The absence of the clause in meat processing awards appears to us to be somewhat anomalous, as apart from the history, there appears to be no logical reason for a different approach in such establishments. We are of the view that the adoption of a consistent position across all operations covered by the Award is appropriate and necessary to achieve the modern awards objective because it is consistent with a fair and relevant safety net of terms and conditions. We approve the variation sought by The Australasian Meat Industry Employees Union.

Conclusions

[19] We have determined that four variations to the Award are necessary to achieve the modern awards objective. The variations we have approved in this decision will be made by the Award Review Full Bench in due course.

VICE PRESIDENT

Appearances:

Mr C Buckley for The Australasian Meat Industry Employees Union.

Mr A Herbert of counsel for the Australian Meat Industry Council.

Mr B Ferguson for The Australian Industry Group.

Hearing details:

2014.

Melbourne—Video Conference Link to Sydney and Brisbane.

15 December.

 1  [2015] FWCFB 620.

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