[2010] FWAFB 9596 [2010] FWAFB 9596 Download Word Document FAIR WORK AUSTRALIA DECISION Fair Work Act 2009 s.604—Appeal of decisions Appeal by Baking Manufacturers’ Industry Association of Australia (C2010/5459) JUSTICE GIUDICE, PRESIDENT SENIOR DEPUTY PRESIDENT ACTON COMMISSIONER ROE MELBOURNE, 14 DECEMBER 2010 [1] This is an appeal, for which permission is required, by the Baking Manufacturers' Industry Association of Australia (BMIAA) against a decision made by Vice President Watson on 18 October 2010. 1 The appeal is brought pursuant to s.604 of the Fair Work Act 2009 (Fair Work Act). [2] The Vice President had before him an application by BMIAA for a determination varying cl.31.3(c) of the Food, Beverage and Tobacco Manufacturing Award 2010 2 (the modern award) pursuant to s.160 of the Fair Work Act. Section 160 is as follows: “ 160 Variation of modern award to remove ambiguity or uncertainty or correct error (1) FWA may make a determination varying a modern award to remove an ambiguity or uncertainty or to correct an error. (2) FWA may make the determination: (a) on its own initiative; or (b) on application by an employer, employee, organisation or outworker entity that is covered by the modern award.” [3] It can be seen that the power to make a determination under s.160 is dependent on the existence of an ambiguity or an uncertainty, or an error. In this case BMIAA’s application was based on the existence of an ambiguity or an uncertainty. The Vice President decided that the clause is not ambiguous and dismissed the application. His Honour did not specifically address BMIAA’s submission that the operation of the clause is uncertain. [4] An appeal under s.604 cannot succeed unless error is shown in the decision under appeal. 3 Whether an ambiguity or uncertainty exists under s.160(1) is a question to which there can only be one legally correct answer. 4 [5] The question before the Vice President, and before us, concerns the interpretation and application of cl.31.3(c) of the modern award. Clause 31.3 reads where relevant: “ 31.3 Shift allowances (a) An employee who works on early morning shift must be paid 12.5% extra for such shift; (b) An employee who works on afternoon or night shift must be paid 15% extra for such shift. (c) An employee who works on an afternoon or night shift which does not continue: (i) for at least five successive afternoon or night shifts or six successive afternoon or night shifts in a six day workshop (where no more than eight ordinary hours are worked on each shift); or (ii) for at least 38 ordinary hours (where more than eight ordinary hours are worked on each shift and the shift arrangement is in accordance with clauses 30.3 or 30.4), must be paid for each shift 50% extra for the first three hours and 100% extra for the remaining hours.” [6] Clause 31.3 deals with shift allowances and is expressed to apply to “employees”. Clause 31.3(a) provides for a morning shift penalty of 12.5%. Clause 31.3(b) provides for an afternoon or night shift penalty of 15%. Clause 31.3(c) provides a penalty of 50% for the first three hours and double time thereafter for work on an afternoon or night shift which is not part of a continuous shift pattern. The BMIAA application sought to amend sub-clause (c) by inserting the words “other than a casual” after the word “employee”. [7] BMIAA submitted that ambiguity or uncertainty arises because there was no provision of this kind in baking industry awards before the modern award was made. This submission of itself has no bearing on whether the clause is ambiguous or uncertain. More cogently, BMIAA submitted that there are a number of indications that casual employees, although not specifically excluded from the operation of cl.31.3(c), were not intended to be covered by it. These indications include that casuals by the nature of their employment are unlikely to work continuous shifts, there is no precedent for casuals receiving such a penalty in the baking industry, cl.13.1 of the award, dealing with the casual loading, provides an “all purpose rate” and the rationale for the penalty - to compensate for disruption to the working pattern of full time employees - has no application to casuals. Other submissions were also advanced. [8] In our view these submissions do not take BMIAA’s case the distance necessary to establish error. While the submissions might provide some support for an argument that the clause ought not apply to casuals, they do not indicate that the clause is ambiguous or uncertain. We cannot find any basis for giving the words of the clause a meaning other than their ordinary one. The use of the word “employee” in cl.31.3(c) should be given an unqualified meaning, as it is in cl.31.3(a) and (b). We also agree with the Vice President’s conclusions in the following passage: “[14] The argument suggested ... as a basis for limiting application of the higher shift allowance to casuals who work on an intermittent basis is a tenuous one. Certainly casual employees will be impacted differently by shift work if they work intermittent shifts. However it is difficult to envisage that the drafters of this provision intended that the disabilities of working a small number of shifts would be compensated differently between full-time and casual employees in the absence of the adoption of clear words to achieve such a result. The same alleged difficulty in interpretation as for casual employees also logically applies to part-time employees. There can be no suggestion that the wording of the clause is ambiguous in relation to its application to part-time employees.” [9] Two other considerations advanced by BMIAA require comment. First, it was submitted that the Vice President failed to consider whether the clause was uncertain, confining his findings to the question of alleged ambiguity. It is true that the Vice President did not specifically address the question of whether the operation of the clause is uncertain. In the circumstances, however, we do not attach any significance to that omission. The Vice President dealt with the substance of the submissions advanced and His Honour’s conclusions, although expressed in relation to the argument of ambiguity, apply with equal force in relation to the allegation of uncertainty. In any event we have not ourselves found the clause to be uncertain. [10] The second consideration advanced by BMIAA which requires comment concerns observations made by the Vice President concerning the origins of cl.31.3(c). Those observations were to the effect that the clause adopts the wording in the Manufacturing and Associated Industries Award 2010 5 and that the wording has a long history in the predecessors to that award and in other awards. We have no doubt that these observations are accurate. BMIAA’s submission seems to be a criticism that such a provision was adopted rather than a provision which in BMIAA’s view was more appropriate for the baking industry. All that needs to be said is that the submission does not advance the case for ambiguity or uncertainty in the wording of cl.31.3(c). [11] The Vice President’s decision is not affected by error. There being no reason, in the public interest or otherwise, why permission should be granted to appeal, we decline to give permission. The appeal is dismissed. PRESIDENT Appearances: A. Duc for the Baking Manufacturers’ Industry Association of Australia. G. Noble for the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union (AMWU). Hearing details: 2010. Melbourne (with video conference to Sydney). December 9. 1 [2010] FWA 7474 . 2 MA000073. 3 Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 at para 17 per Gleeson, Gaudron and Hayne JJ. The terms of ss.607(2) and (3) of the Fair Work Act are not materially different from ss.45(6) and (7) of the Workplace Relations Act 1996. 4 Compare, Coal and Allied , cited above, at para 19. 5 MA000010. Printed by authority of the Commonwealth Government Printer <Price code A, PR504985>