[2009] AIRCFB 938 |
|
DECISION |
Workplace Relations Act 1996
s.576H—Commission may vary modern awards
PROFESSIONAL EMPLOYEES AWARD 2010
[MA000065]
JUSTICE GIUDICE, PRESIDENT |
MELBOURNE, 1 DECEMBER 2009 |
[1] This decision concerns an application by the Association of Professional Engineers, Scientists and Managers, Australia (APESMA) to vary the Professional Employees Award 2010 (the award or the modern award). The award was published on 4 September 2009 1 and will come into force on 1 January 2010.
[2] The application seeks to:
[3] In addition, the application seeks to correct some minor typographical errors.
[4] Submissions were received from APESMA, the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers’ Union (AMWU), the Australian Industry Group (AiGroup) and The Australian Federation of Employers and Industries (AFEI).
[5] There was no opposition to the proposal to amend the classification definitions or to the correction of the typographical errors. Those changes will be made.
[6] The proposal to alter the coverage of the award was opposed by the AMWU, AiGroup and AFEI and it is to that matter we now turn.
[7] Relevantly, the coverage clause in the award provides:
“This award covers employers throughout Australia principally engaged in the information technology industry, the quality auditing industry or the telecommunications services industry and their employees who are covered by the classifications in Schedule A.”
[8] APESMA argued that the word “principally” should be removed from the clause. It submitted that the modern award is an occupational one and the use of the word “principally” may have the effect of limiting the award’s coverage. APESMA did not seek to re-open the substantive issues but sought clarification and the removal of uncertainty. We pause to note that, while the principal area of controversy concerned the coverage of employees in the information technology industry, in context the word “principally” is equally capable of application to the quality auditing and telecommunications industries.
[9] The AMWU opposed the proposal on the basis that the modern award should not be occupationally based and should only operate in an identifiable sector; namely the information technology industry. In the alternative, the AMWU submitted that should the Commission make the variation sought the award should also be varied to exclude employers covered by the Graphic Arts, Printing and Publishing Award 2010 2 and work which attracts the allowance provided for in cl.32.1(e) of the Manufacturing and Associated Industries and Occupations Award 2010.3
[10] AiGroup also opposed the removal of the word “principally”. It did so on the basis that the award’s coverage of professionals in the information technology, telecommunications and quality auditing industries would be extended. It also submitted that if the word “principally” was removed the award would be of less certain application in that an employer could be covered by the award if it was engaged in the information technology, telecommunications or quality auditing industries on an infrequent basis or partial basis. AiGroup supported its case by reference to the history of the coverage of information technology professionals both before this Full Bench and in the making of the Information Technology Industry (Professional Employees) Award 2001 4 (the 2001 award).
[11] AFEI opposed the proposal also. It submitted that the coverage issue had already been considered and decided by the Full Bench when it made the award.
Conclusion
[12] As indicated above, the amendments which were not opposed are granted and the award will be varied accordingly.
[13] The AiGroup outlined the history of award coverage of information technology employees including the making of the 2001 award by consent 5. The 2001 award was subsequently made a common rule award in the State of Victoria.6
[14] Following the making of the common rule, an application was made by the AiGroup to vary the 2001 award and the common rule to remove ambiguity and uncertainty as to their coverage. It was submitted, at that time, by the AiGroup that when the 2001 award was made it only applied to named respondents in the information technology industry and should not apply outside that industry. The Commission varied the 2001 award to confine its coverage in line with the original area of award respondency. 7 In further proceedings the Commission decided, however, that the common rule declaration should apply to the occupation of information technology professionals. 8
[15] This history was extensively canvassed in the consultations which preceded the making of the modern award. The Full Bench had before it the details of industrial regulation of information technology professionals throughout Australia and decided to limit the coverage of the modern award to employers who were “principally engaged in information technology”. The employers put material to the Commission seeking to demonstrate that, but for the Victorian common rule declaration, award coverage of information technology professionals was limited to the information technology industry as described in the modern award. We were not persuaded that the existence of the Victorian common rule declaration was sufficient to tip the scales in favour of a broader coverage than that contained in the 2001 award and other instruments. Nothing has been put in this further application which would lead us to a different view.
[16] Accordingly the application to vary the coverage clause by deleting the word “principally” is rejected.
BY THE COMMISSION:
PRESIDENT
1 MA000065.
2 MA000026.
3 MA000010.
4 AP812692CAV.
5 AP812692CAV. See also Print P1299, 27 May 1997 and Print Q2179, 23 June 1998.
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