[2012] FWA 9606 |
|
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
The Australian Industry Group
(AM2012/77)
Coal industry | |
JUSTICE BOULTON, SENIOR DEPUTY PRESIDENT |
SYDNEY, 30 NOVEMBER 2012 |
[1] Pursuant to Item 6 of Schedule 5 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the Transitional Act), Fair Work Australia is required to conduct a review of all modern awards after two years.
[2] In relation to the Black Coal Mining Industry Award 2010 [MA000001] (the Award), the Australian Industry Group (Ai Group) lodged an application (AM2012/77) seeking to vary the coverage clause of the Award. This application was referred to me by the President for determination.
[3] The Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (AMWU) filed an application (AM2012/140) to vary the Award in relation to apprentice rates and public holidays. The President referred these matters to Full Benches.
[4] The Ai Group application was listed for mention and programming on 30 May 2012. Representatives of the Ai Group, the Coal Mining Industry Employer Group, the AMWU, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the CEPU) and the Construction, Forestry, Mining and Energy Union (the CFMEU) participated in the proceedings.
[5] On 1 June 2012 directions were issued instructing the parties to hold discussions in relation to the Ai Group’s application and to advise FWA of the outcome of those discussions by 28 June 2012. The directions advised interested parties that any technical or drafting matters identified by interested parties would be dealt with during the proceedings relating to the Ai Group’s application.
The Relevant Legislation
[6] Sch. 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).”
[7] Further provisions of the Fair Work Act 2009 (the Act) are also applicable and relevant to the 2012 Review. Section 134 of the Act provides:
“134 The modern awards objective
What is the modern awards objective?
(1) FWA must ensure that modern awards, together with the National Employment Standards, provide a fair and relevant minimum safety net of terms and conditions, taking into account:
(a) relative living standards and the needs of the low paid; and
(b) the need to encourage collective bargaining; and
(c) the need to promote social inclusion through increased workforce participation; and
(d) the need to promote flexible modern work practices and the efficient and productive performance of work; and
(e) the principle of equal remuneration for work of equal or comparable value; and
(f) the likely impact of any exercise of modern award powers on business, including on productivity, employment costs and the regulatory burden; and
(g) the need to ensure a simple, easy to understand, stable and sustainable modern award system for Australia that avoids unnecessary overlap of modern awards; and
(h) the likely impact of any exercise of modern award powers on employment growth, inflation and the sustainability, performance and competitiveness of the national economy.
This is the modern awards objective.”
The Variations
[8] The Ai Group seeks an amendment to the note at the end of clause 4.3 of the Award. The note currently states:
“NOTE: See, for example, decision of the Coal Industry Tribunal in Australian Collieries Staff Association and Queensland Coal Owners Association—No. 20 of 1980, 22 February 1982 [Print CR2997].”
[9] The Ai Group seeks amendments to the note on the grounds that the note does not achieve the modern awards objective, that it contains errors, anomalies and/or technical problems arising from the Part 10A award modernisation process, and that the note as currently drafted is uncertain. It was submitted by the Ai Group that the decision referred to in the note was not readily accessible and pertains to the specific issue of the coverage of white collar staff.
[10] Following the mention and programming hearing on 30 May 2012, the Ai Group, the Coal Mining Industry Employer Group, the AMWU, the CEPU and the CFMEU reached an agreed position on changed wording in the note at the end of clause 4.3 of the Award. The parties submit that the current note should be deleted and replaced with the following:
“NOTE: The coverage clause is intended to reflect the status quo which existed under key pre-modern awards in relation to the kinds of employers and employees to whom those awards applied and the extent to which the awards applied to such employers and employees.
An example of the types of issues and some of the case law to be considered when addressing coverage matters can be found in Australian Collieries Staff Association and Queensland Coal Owners Association – No. 20 of 1980, 22 February 1982 {Print CR2297} and in the Court decisions cited in this decision.”
[11] It is noted that the parties have indicated that the amendment to the note merely seeks to clarify existing coverage of the Award and does not change in any way the definition of the black coal mining industry.
[12] The Ai Group submit that the amendment to the note in the coverage clause should have a retrospective operative date of 1 January 2010. The Ai Group submit that this would avoid any uncertainty about the coverage of the Award for the period since 1 January 2010, and avoid uncertainty about the coverage of the portable long service leave legislation, which is based upon the coverage of the Award as at 1 January 2010.
[13] The Coal Mining Industry Employer Group and the CFMEU do not oppose the amendment having a retrospective operative date. No further submissions were received in relation to the retrospective operation of the amendment.
[14] Several technical and drafting matters have been identified in relation to the Award.On 10 October 2012 a statement and directions were issued inviting submissions on proposed variations to deal with these matters.
[15] The CFMEU filed correspondence indicating that it agrees with the proposed technical changes to the Award, but suggested some amendments. The Ai Group supported the proposed variations and the CFMEU’s suggested amendment. The Coal Mining Industry Employer Group supported the changes as set out in the Statement and Directions issued on 10 October 2012. No other submissions were received.
Conclusion
[16] I have considered the provisions of Item 6 of Schedule 5 of the Transitional Act and the modern awards objective in s.134 of the Act.
[17] On the basis of the materials and submissions provided, I consider that it is appropriate to vary the note at clause 4.3 of the Award as agreed by the abovementioned parties. The proposed amendment is an appropriate way to achieve greater clarity and certainty in relation to the coverage of the Award and those considerations that might be relevant when addressing coverage matters.
[18] I am satisfied that there are exceptional circumstances that make it appropriate for the variation to the note at clause 4.3 of the Award to operate retrospectively as sought by the Ai Group.
[19] I consider that the proposed technical and drafting changes to clauses 4.1, 17.8(b), 22.6(e)(i), 23.2, 26.5(b) and Schedule B.1 should be made. These changes correct errors and inconsistencies in the Award and make the Award easier to understand.
[20] A determination will therefore be made varying the Award in accordance with this decision (see PR531393).
SENIOR DEPUTY PRESIDENT
Appearances:
Ms G Vaccaro for the Australian Industry Group
Mr B Rauf for the Coal Mining Industry Employer Group
Mr A Thomas for the Construction, Forestry, Mining and Energy Union
Ms L Saunders for the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union
Mr M Wright for the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
Hearing details:
2012
Sydney
30 May
Printed by authority of the Commonwealth Government Printer
<Price code A, MA000001 PR531244>