[2009] AIRCFB 917 |
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STATEMENT |
Workplace Relations Act 1996
s.576E—Procedure for carrying out award modernisation process
Request from the Minister for Employment and Workplace Relations—28 March 2008
JUSTICE GIUDICE, PRESIDENT |
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AWARD MODERNISATION
[1] This statement deals with award modernisation and in particular the question of modern award coverage of employees in state and territory government administration. In its statement accompanying the publication of the Stage 4 exposure drafts on 25 September 2009, the Commission indicated that at that stage it did not intend to publish a draft award for state and territory government administration. 1 During the subsequent consultations a number of parties sought to persuade us to change that view and submitted that we should publish a draft award as soon as possible.
[2] At the outset it should be made clear that although the industry under consideration is described as state and territory government administration, the issue before us may not involve territory government administration. As we indicated in our statement of 25 September 2009:
“[252]… …The governments of the Australian Capital Territory and the Northern Territory take the view that employees involved in the administration of the Territories are covered by enterprise awards and are not part of the award modernisation process under Part 10A of the WR Act. No party suggested otherwise. We proceed on the assumption that no modern award should be made for employees in Territory administration.”
[3] No suggestion has been made that we should revisit that conclusion. We deal now with the submissions made in relation to state government administration.
[4] In our statement of 25 September 2009 we set out our reasons for not issuing an exposure draft. Those reasons included uncertainty as to:
[5] We also noted that employees that might be covered by such an award in Victoria are apparently covered by collective agreements. We concluded:
“[261] In all the circumstances we are inclined to think that no separate modern award for state government administration should be made as part of the current award modernisation process. After 1 January 2010 Fair Work Australia will have power to make modern awards on essentially the same basis as the Commission currently does. Fair Work Australia can make a modern award for state government administration if and when it becomes necessary or appropriate to do so.
[262] We recognise that our analysis of the legislative provisions, and other matters bearing upon the provisional view expressed in the preceding paragraph, have not been dealt with in great detail in the consultations. We are open to further submissions about the effect of the relevant provisions. We are also prepared to reconsider our preliminary view that we should not make a modern award for state government administration as part of the current award modernisation process.” 2
[6] The CPSU, the Community and Public Sector Union (CPSU) submitted that it had identified a total of 38 employers which are likely to be constitutional corporations in Victoria, New South Wales, Western Australia and South Australia for which a modern award should be made. It also supported submissions made by Workforce Victoria that the making of a modern award for corporations in state government administration would remove uncertainties in relation to award coverage in Victoria and provide a more certain base for enterprise bargaining. The CPSU also submitted that developments since 25 September 2009 had produced greater clarity in relation to State referrals. Workforce Victoria maintained its support for an award to cover state government administration. Among other things it drew attention to its earlier submissions in support of that course and to a submission by the Australian Government that a modern award could extend to a state public sector employer, whether the employer is a constitutional employer or not, because of the terms of a state reference.
[7] The CPSU and Workforce Victoria have agreed on a draft modern award, although the CPSU has reserved its position on certain clauses. The draft was lodged and posted on the relevant part of the award modernisation website on 22 September 2009.
[8] It is apparent, on the basis of the information provided to us that there are likely to be significant gaps in modern award coverage, not only in Victoria but also in other States, if a modern award is not made. We have decided that the appropriate course is to issue an exposure draft. This will provide an opportunity for those potentially affected by such a modern award to make submissions as to whether an award should be made and if so what it should contain.
[9] We publish with this statement a draft State Government Agencies Award 2010. It is based largely on the draft agreed between Workforce Victoria and the CPSU. Some clauses have been deleted or modified to reflect the drafting of modern awards generally and standard clauses have been included in their usual form.
[10] Any submissions and other material in relation to the exposure draft must be filed by 27 November 2009. We do not intend to program any oral consultations at this stage.
[11] We note that we received no submission from any employer potentially affected by the agreed draft after it was filed on 22 September 2009. Nor did we receive any submission from an employer outside Victoria after our statement of 25 September 2009. Interested parties should be aware that we may make our final decision in relation to the matter on the basis of the written submissions.
BY THE COMMISSION:
PRESIDENT
2 Ibid.
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