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[2009] AIRCFB 945
Australian Industrial Relations Commission (Full Bench)
2009-12-04
Original judgment source is linked above.
(#P132_2478) [2009] AIRCFB 865.
(#P135_3426) [2008] AIRCFB1000, [2009] AIRCFB 345 and [2009] AIRCFB 826.
(#P136_3565) [2009] AIRCFB 800 particularly at paras 2 to 5 and .
(#P153_5871) [2009] AIRCFB 800 particularly at paras 9 to 11 and 56 to 61.
(#P160_7084) [2009] AIRCFB 865.
(#P167_7633) ibid.
(#P210_13123) MA000010.
(#P223_14606) AP774892.
(#P224_14669) AP819154.
(#P225_14841) AP834773CRC.
11 AP801881CRV.
(#P284_23805) [2009] AIRCFB 865 at para 67.
(#P285_24930) see s.14(a) of the Fair Work Act.
(#P288_26412) (1986) 72 ALR 136.
(#P299_30560) [2008] AIRCFB 550 at paras 155 to 192.
(#P302_31172) Re Victorian Firefighting Industry Employees Interim Award 1993, Print S3127, 1 March 2000.
(#P305_32791) MA000065.
(#P314_35361) See: [2008] AIRCFB 550 at paras193 to 196, [2009] AIRCFB 641 and [2009]AIRCFB 865 at paras 1 to 3.
(#P333_37196) MA000020.
(#P344_39817) [2009] AIRCFB 865 at para 89.
(#P351_40353) Ambulance Services and Patient Transport Employees Award, Victoria 2002, AP817765CRV.
(#P356_41011) [2009] AIRCFB 865 at para 92.
(#P371_42828) MA000080.
(#P389_45861) MA000018.
(#P408_50133) AP796561CRV.
(#P445_55562) MA000027.
(#P462_58929) [2009] AIRCFB 925.
(#P479_62564) MA000025.
(#P482_62958) [2009] AIRCFB 925 at para 8.
(#P493_65491) MA000029.
(#P500_67321) MA000049.
(#P503_67677) MA000045.
33 MA000021.
(#P509_69009) MA000048.
(#P510_69095) MA000017.
(#P561_76217) It may be noted that there is no system of local government in the ACT.
(#P627_90600) See :Schedule 5, item.3 of the Transitional Act.
(#P646_95370) Re Victorian Shops Interim Award 1994, 6 March 2000, Print S3850.
(#P697_104991) [2009] AIRCFB 865 at para 174.
(#P704_106944) [2009] AIRCFB 865 at para 177.
(#P711_107208) [2009] AIRCFB 865 at para 181.
43 MA000009.
(#P717_108345) [2009] AIRCFB 865 at paras 188 to 192.
(#P724_109791) MA000038.
(#P735_112525) [2009] AIRCFB 865 at para 198.
(#P738_113366) [2009] AIRCFB 865at para 209.
(#P749_115451) [2009] AIRCFB 865, at paras 234 to 236.
(#P758_117068) MA000011.
(#P761_117346) MA000010.
(#P762_117412) AN160096.
(#P775_120203) [2009] AIRCFB 922.
(#P817_127425) QGIG, 11 July 2003, Vol.173, No.11, pp.878 to 927.
Attachment A to Full Bench Decision of 4 December 2009
List of Stage 4 Modern Awards
Aboriginal Community Controlled Health Services Award 2010
Ambulance and Patient Transport Industry Award 2010
Animal Care and Veterinary Services Award 2010
Aquaculture Industry Award 2010
Car Parking Award 2010
Children's Services Award 2010
Corrections and Detention (Private Sector) Award 2010
Dry Cleaning and Laundry Industry Award 2010
Educational Services (Teachers) Award 2010 - variation only
Fire Fighting Industry Award 2010
Fitness Industry Award 2010
Funeral Industry Award 2010
Gardening and Landscaping Services Award 2010
Labour Market Assistance Industry Award 2010
Legal Services Award 2010
Local Government Industry Award 2010
Mannequins and Models Award 2010
Miscellaneous Award 2010
Pest Control Industry Award 2010
Professional Diving Industry (Industrial) Award 2010
Professional Diving Industry (Recreational) Award 2010
Real Estate Industry Award 2010
Restaurant Industry Award 2010
Salt Industry Award 2010
Seagoing Industry Award 2010
Social, Community, Home Care and Disability Services Industry Award 2010
State Government Agencies Administration Award 2010
Supported Employment Services Award 2010
Travelling Shows Award 2010
Water Industry Award 2010
National Training Wage Schedule
Attachment B to Full Bench Decision of 4 December 2009
Model Provisions
1. Labour hire/on-hire
Industry awards
Insert in definitions clause:
"on-hire means the on-hire of an employee by their employer to a client, where such employee works under the general guidance and instruction of the client or a representative of the client."
Insert in coverage clause:
"This award covers any employer who supplies labour on an on-hire basis in the industry (or industries) set out in clause (clauses) xxx in respect of on-hire employees in classifications covered by this award, and those on-hire employees, while engaged in the performance of work for a business in that industry (those industries). This sub-clause operates subject to the exclusions from coverage in this award."
Occupational awards
Insert in definitions clause:
"on-hire means the on-hire of an employee by their employer to a client, where such employee works under the general guidance and instruction of the client or a representative of the client."
Insert in coverage clause:
"This award covers any employer who supplies on-hire employees in classifications set out in clause (clauses) xxx and those on-hire employees, if the employer is not covered by another modern award containing a classification which is more appropriate to the work performed by the employee. This sub-clause operates subject to the exclusions from coverage in this award."
Industry and occupational awards
Insert in definitions clause:
"on-hire means the on-hire of an employee by their employer to a client, where such employee works under the general guidance and instruction of the client or a representative of the client."
Insert in coverage clause:
"(a) This award covers any employer who supplies labour on an on-hire basis in the industry (or industries) set out in clause (clauses) xxx in respect of on-hire employees in classifications covered by this award, and those on-hire employees, while engaged in the performance of work for a business in that industry (those industries)." This sub-clause operates subject to the exclusions from coverage in this award."
(b) This award covers any employer who supplies on-hire employees in classifications set out in clause (clauses) xxx and those on-hire employees, if the employer is not covered by another modern award containing a classification which is more appropriate to the work performed by the employee. This sub-clause operates subject to the exclusions from coverage in this award."
2. Group training employers
Industry awards
Insert in coverage clause:
"This award covers employers which provide group training or related temporary employment services for apprentices and/or trainees [delete apprentices and/or trainees if not relevant to the award] engaged in the industry (or industries) and/or parts of industry set out at clause/s xx and those apprentices and/or trainees [delete apprentices and/or trainees if not relevant to the award] engaged by a group training or related temporary employment service hosted by a company to perform work at a location where the activities described herein are being performed. This sub-clause operates subject to the exclusions from coverage in this award."
Occupational awards
Insert in coverage clause:
"This award covers employers which provide group training or related temporary employment services for apprentices and/or trainees [delete apprentices and/or trainees if not relevant to the award] engaged in any of the occupations set out at clause/s xx and those apprentices and/or trainees [delete apprentices and/or trainees if not relevant to the award] engaged by a group training or related temporary employment service hosted by a company to perform work at a location where the activities described herein are being performed. This sub-clause operates subject to the exclusions from coverage in this award."
Industry and occupational awards
Insert in coverage clause:
"This award covers employers which provide group training services for apprentices and/or trainees [delete apprentices and/or trainees if not relevant to the award] engaged in the industry (or industries), parts of industry and/or occupations set out at clause/s xx and those apprentices and/or trainees [delete apprentices and/or trainees if not relevant to the award] engaged by a group training service hosted by a company to perform work at a location where the activities described herein are being performed. This sub-clause operates subject to the exclusions from coverage in this award."
Attachment C to Full Bench Decision of 4 December 2009
Particular Provisions
Manufacturing and Associated Industries and Occupations Award 2010
Insert in definitions clause:
"on-hire means the on-hire of an employee by their employer to a client, where such employee works under the general guidance and instruction of the client or a representative of the client."
Insert in coverage clause:
(a) This award covers any employer which supplies labour on an on-hire basis in the industry (or industries) set out in sub- clause 4.2(a) or (b) in respect of on-hire employees in classifications covered by this award, and those on-hire employees, while engaged in the performance of work for a business in that industry (those industries)."
(b) This award covers any employer which supplies on-hire employees in occupations set out in sub-clause 4.2(c) covered by classifications in this award and those on-hire employees, if the employer is not covered by another modern award containing a classification which is more appropriate to the work performed by the employee.
(c) This sub-clause operates subject to the exclusions from coverage in this award.
Joinery and Building Trades Award 2010
Insert in definitions clause:
"on-hire means the on-hire of an employee by their employer to a client, where such employee works under the general guidance and instruction of the client or a representative of the client."
Insert in coverage clause:
(a) This award covers any employer which supplies labour on an on-hire basis in the industry (or industries) set out in sub- clause 4.2(a) in respect of on-hire employees in classifications covered by this award, and those on-hire employees, while engaged in the performance of work for a business in that industry (those industries)."
(b) This award covers any employer which supplies on-hire employees in occupations set out in sub-clause 4.2(b)covered by classifications in this award and those on-hire employees, if the employer is not covered by another modern award containing a classification which is more appropriate to the work performed by the employee.
(c) This sub-clause operates subject to the exclusions from coverage in this award.
Attachment D to Full Bench Decision of 4 December 2009
Labour hire/on-hire provision - application to modern awards
Modern Awards which do not require any variation
● Aluminium Industry Award 2010
● Black Coal Mining Industry Award 2010
● Contract Call Centres Award 2010
● Electrical Power Industry Award 2010
● Fire Fighting Industry Award 2010
● Hydrocarbons Industry (Upstream) Award 2010
● Mining Industry Award 2010
● Salt Industry Award 2010
● Telecommunications Services Award 2010
Occupational awards
● Air Pilots Award 2010
● Aircraft Cabin Crew Award 2010
● Architects Award 2010
● Clerks - Private Sector Award 2010
● Commercial Sales Award 2010
● Hydrocarbon Field Geologists Award 2010
● Mannequins and Models Award 2010
● Medical Practitioners Award 2010
● Miscellaneous Award 2010
● Nurses Award 2010
● Surveying Award 2010
Industry awards
● Aboriginal Community Controlled Health Services Award 2010
● Aged Care Award 2010
● Airline Operations Ground Staff Award 2010
● Airport Employees Award 2010
● Alpine Resorts Award 2010
● Ambulance and Patient Transport Industry Award 2010
● Amusement, Events and Recreation Award 2010
● Animal Care and Veterinary Services Award 2010
● Aquaculture Industry Award 2010
● Asphalt Industry Award 2010
● Banking, Finance and Insurance Award 2010
● Book Industry Award 2010
● Broadcasting and Recorded Entertainment Award 2010
● Building and Construction General On-site Award 2010
● Business Equipment Industry Award 2010
● Car Parking Award 2010
● Cement and Lime Award 2010
● Cemetery Industry Award 2010
● Children's Services Award 2010
● Cleaning Services Industry Award 2010
● Coal Export Terminals Award 2010
● Concrete Products Award 2010
● Corrections and Detention (Private Sector) Award 2010
● Cotton Ginning Award 2010
● Dredging Industry Award 2010
● Dry Cleaning and Laundry Industry Award 2010
● Educational Services (Post-Secondary Education) Award 2010
● Educational Services (Schools) General Staff Award 2010
● Educational Services (Teachers) Award 2010
● Electrical, Electronic and Communications Contracting Award 2010
● Fast Food Industry Award 2010
● Fitness Industry Award 2010
● Food, Beverage and Tobacco Manufacturing Award 2010
● Funeral Industry Award 2010
● Gardening and Landscaping Services Award 2010
● Gas Industry Award 2010
● General Retail Industry Award 2010
● Hair and Beauty Industry Award 2010
● Higher Education Industry - Academic Staff - Award 2010
● Higher Education Industry - General Staff - Award 2010
● Horse and Greyhound Training Award 2010
● Horticulture Award 2010
● Hospitality Industry (General) Award 2010
● Journalists Published Media Award 2010
● Labour Market Assistance Industry Award 2010
● Legal Services Award 2010
● Live Performance Award 2010
● Local Government Industry Award 2010
● Market and Social Research Award 2010
● Marine Tourism and Charter Vessels Award 2010
● Marine Towage Award 2010
● Maritime Offshore Oil and Gas Award 2010
● Meat Industry Award 2010
● Mobile Crane Hiring Award 2010
● Nursery Award 2010
● Oil Refining and Manufacturing Award 2010
● Passenger Vehicle Transportation Award 2010
● Pastoral Award 2010
● Pest Control Industry Award 2010
● Pharmaceutical Industry Award 2010
● Pharmacy Industry Award 2010
● Port Authorities Award 2010
● Ports, Harbours and Enclosed Water Vessels Award 2010
● Poultry Processing Award 2010
● Premixed Concrete Award 2010
● Professional Diving Industry (Industrial) Award 2010
● Professional Diving Industry (Recreational) Award 2010
● Quarrying Award 2010
● Racing Clubs Events Award 2010
● Racing Industry Ground Maintenance Award 2010
● Rail Industry Award 2010
● Real Estate Industry Award 2010
● Registered and Licensed Clubs Award 2010
● Restaurant Industry Award 2010
● Road Transport and Distribution Award 2010
● Road Transport (Long Distance Operations) Award 2010
● Seafood Processing Award 2010
● Seagoing Industry Award 2010
● Security Services Industry Award 2010
● Silviculture Award 2010
● Social, Community, Home Care and Disability Services Industry Award 2010
● Sporting Organisations Award 2010
● State Government Agencies Administration Award 2010
● Stevedoring Industry Award 2010
● Storage Services and Wholesale Award 2010
● Supported Employment Services Award 2010
● Sugar Industry Award 2010
● Textile, Clothing, Footwear and Associated Industries Award 2010
● Timber Industry Award 2010
● Transport (Cash in Transit) Award 2010
● Travelling Shows Award 2010
● Vehicle Manufacturing, Repair, Services and Retail Award 2010
● Waste Management Award 2010
● Water Industry Award 2010
● Wine Industry Award 2010
● Wool Storage, Sampling and Testing Award 2010
Occupational and Industry Coverage
● Graphic Arts, Printing and Publishing Award 2010
● Health Professionals and Support Services Award 2010
● Plumbing and Fire Sprinklers Award 2010
● Professional Employees Award 2010
Attachment E to Full Bench Decision of 4 December 2009
Group training organisations - application to modern awards
1. Modern awards to contain the model group training provision:
● Airline Operations - Ground Staff Award 2010
● Airport Employees Award 2010
● Alpine Resorts Award 2010
● Aluminium Industry Award 2010
● Amusement, Events and Recreation Award 2010
● Black Coal Mining Industry Award 2010
● Building and Construction General On-site Award 2010
● Business Equipment Award 2010
● Cemetery Industry Award 2010
● Children's Services Award 2010
● Coal Export Terminals Award 2010
● Contract Call Centres Award 2010
● Dry Cleaning and Laundry Industry Award 2010
● Educational Services (Schools) General Staff Award 2010
● Electrical, Electronic and Communications Contracting Award 2010
● Electrical Power Industry Award 2010
● Food, Beverage and Tobacco Manufacturing Award 2010
● Gardening and Landscaping Services Award 2010
● Gas Industry Award 2010
● General Retail Industry Award 2010
● Graphic Arts, Printing and Publishing Award 2010
● Hair and Beauty Industry Award 2010
● Hospitality Industry (General) Award 2010
● Hydrocarbons Industry (Upstream) Award 2010
● Joinery and Building Trades Award 2010
● Local Government Industry Award 2010
● Manufacturing and Associated Industries and Occupations Award 2010
● Meat Industry Award 2010
● Mining Industry Award 2010
● Miscellaneous Award 2010
● Nursery Award 2010
● Oil Refining and Manufacturing Award 2010
● Plumbing and Fire Sprinklers Award 2010
● Port Authorities Award 2010
● Racing Industry Ground Maintenance Award 2010
● Rail Industry Award 2010
● Registered and Licensed Clubs Award 2010
● Restaurant Industry Award 2010
● Salt Industry Award 2010
● Stevedoring Industry Award 2010
● Sugar Industry Award 2010
● Telecommunications Services Award 2010
● Textile, Clothing, Footwear and Associated Industries Award 2010
● Timber Industry Award 2010
● Vehicle Manufacturing, Repair, Services and Retail Award 2010
● Water Industry Award 2010
● Wine Industry Award 2010
2. Modern awards to contain the model group training provision without the reference to trainees:
Nil
3. Modern awards to contain the model group training provision without the reference to apprentices:
● Aboriginal Community Controlled Health Services Award 2010
● Aged Care Award 2010
● Animal Care and Veterinary Services Award 2010
● Aquaculture Industry Award 2010
● Asphalt Industry Award 2010
● Banking, Finance and Insurance Award 2010
● Broadcasting and Recorded Entertainment Award 2010
● Car Parking Award 2010
● Cement and Lime Award 2010
● Cleaning Services Award 2010
● Clerks - Private Sector Award 2010
● Commercial Sales Award 2010
● Concrete Products Award 2010
● Corrections and Detention (Private Sector) Award 2010
● Cotton Ginning Award 2010
● Dredging Industry Award 2010
● Educational Services (Post-Secondary Education) Award 2010
● Fast Food Industry Award 2010
● Fitness Industry Award 2010
● Funeral Industry Award 2010
● Health Professionals and Support Services Award 2010
● Horse and Greyhound Training Award 2010
● Horticulture Award 2010
● Legal Services Award 2010
● Live Performance Award 2010
● Market and Social Research Award 2010
● Marine Tourism and Charter Vessels Award 2010
● Maritime Offshore Oil and Gas Award 2010
● Mobile Crane Hiring Award 2010
● Passenger Vehicle Transportation Award 2010
● Pastoral Award 2010
● Pest Control Industry Award 2010
● Pharmaceutical Industry Award 2010
● Pharmacy Industry Award 2010
● Poultry Processing Award 2010
● Premixed Concrete Award 2010
● Quarrying Award 2010
● Racing Clubs Events Award 2010
● Real Estate Industry Award 2010
● Road Transport and Distribution Award 2010
● Road Transport (Long Distance Operations) Award 2010
● Seafood Processing Award 2010
● Seagoing Industry Award 2010
● Silviculture Award 2010
● Sporting Organisations Award 2010
● State Government Agencies Administration Award 2010
● Storage Services and Wholesale Award 2010
● Transport (Cash in Transit) Award 2010
● Travelling Shows Award 2010
● Waste Management Award 2010
● Wool Storage, Sampling and Testing Award 2010
4. Modern awards in which no group training provision is required:
● Aircraft Cabin Crew Award 2010
● Air Pilots Award 2010
● Ambulance and Patient Transport Industry Award 2010
● Architects Award 2010
● Book Industry Award 2010
● Educational Services (Teachers) Award 2010
● Labour Market Assistance Industry Award 2010
● Fire Fighting Industry Award 2010
● Higher Education Industry - Academic Staff - Award 2010
● Higher Education Industry - General Staff - Award 2010
● Hydrocarbons Field Geologists Award 2010
● Journalists Published Media Award 2010
● Marine Towage Award 2010
● Medical Practitioners Award 2010
● Mannequins and Models Award 2010
● Nurses Award 2010
● Ports, Harbours and Enclosed Water Vessels Award 2010
● Professional Diving Industry (Industrial) Award 2010
● Professional Diving Industry (Recreational) Award 2010
● Professional Employees Award 2010
● Security Services Industry Award 2010
● Social, Community, Home Care and Disability Services Industry Award 2010
● Supported Employment Services Award 2010
● Surveying Award 2010
Printed by authority of the Commonwealth Government Printer
(1986) 72 ALR 136
(2008) 171 FCR 102
(1995) 184 CLR 188