[2009] AIRCFB 923

Download Word Document


AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

DECISION

Workplace Relations Act 1996
s.576H—Commission may vary modern awards

Finance Sector Union of Australia

(AM2009/9)

BANKING, FINANCE AND INSURANCE AWARD 2010
[MA000019]

JUSTICE GIUDICE, PRESIDENT
VICE PRESIDENT LAWLER
VICE PRESIDENT WATSON
SENIOR DEPUTY PRESIDENT WATSON
SENIOR DEPUTY PRESIDENT HARRISON
SENIOR DEPUTY PRESIDENT ACTON
COMMISSIONER SMITH

MELBOURNE, 16 NOVEMBER 2009

[1] This decision concerns an application by the Finance Sector Union of Australia (FSU) to vary the Banking, Finance and Insurance Award 2010 1 by removing the exemption rate provision at cl.13.2.

[2] Clause 13.2 is in the following terms:

[3] The application to delete the exemption provision relies on a variation to the Minister for Employment and Workplace Relations (the Minister’s) award modernisation request. The variation to the consolidated request, dated 2 May 2009, inserts paragraph 2(f). In our decision in relation to the application to delete the exemption provision in the Clerks—Private Sector Award 2010 2 we set out the submissions of the Minister in relation to this change and extracts from decisions regarding exemption provisions more generally.3 The Minister submitted that employees who are not high income employees should be protected by a complete and comprehensive modern award safety net of basic entitlements unless there is a history of exempting employees from coverage across a wide range of pre-reform awards and Notional Agreements Preserving State Awards (NAPSAs).

[4] In essence the unions with an interest in relation to this award rely on the change to the Minister’s request. The employers submit that there is a history of exempting provisions in a wide range of awards and NAPSAs.

[5] In the banking, finance and insurance industries there are a large number of enterprise awards which will not be directly affected by the making of this industry award. Of the 17 industry awards which will be replaced by this award, nine contain a partial exemption provision, in the sense that certain award provisions, sometimes only overtime, are not payable to employees paid in excess of a particular salary level. Of the 73 industry awards and enterprise awards applying across the sector, 44 have partial exemption provisions of one type or another.

[6] For the reasons contained in our decision regarding the Clerks—Private Sector Award 2010, we consider that the intent of the change to the Minister’s request is clear. We will delete the exemption provision. However, we believe that payment of an annual salary which includes compensation for certain award entitlements should continue to be available. We will insert in place of the exemption provision an annual salaries clause in the following terms:

[7] We shall also amend the transitional provisions in the phasing schedule to ensure that exemption provisions in pre-modern award instruments will continue to apply until 30 June 2010.

BY THE COMMISSION:

PRESIDENT

 1   MA000019.

 2   MA000002.

 3   [2009] AIRCFB 922.




Printed by authority of the Commonwealth Government Printer

<Price code A, PR990705>