[2010] FWA 3104 |
|
STATEMENT |
Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Schedule 5, item 3—variation and termination of certain transitional instruments
Award Modernisation
(AM2010/53)
JUSTICE GIUDICE, PRESIDENT |
MELBOURNE, 23 APRIL 2010 |
AWARD MODERNISATION – TERMINATION OF MODERNISABLE INSTRUMENTS
[1] This statement concerns the award modernisation process and in particular the termination of modernisable instruments pursuant to the provisions of item 3 of Schedule 5 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Transitional Act). Pursuant to those provisions Fair Work Australia is required to terminate certain modernisable instruments that are replaced by a modern award made under Part 10A of the Workplace Relations Act 1996. Item 3(1) defines modernisable instruments as award-based transitional instruments and transitional Australian Pay and Classification Scales (APCSs). In turn, “award-based transitional instruments” are defined as awards, State reference transitional awards or common rules, and notional agreements preserving State awards.” 1The full terms of item 3 are as follows:
“3 Variation and termination of certain transitional instruments etc. to take account of Part 10A award modernisation process
(1) FWA must, as soon as practicable after a modern award (other than the miscellaneous modern award) made in the Part 10A award modernisation process comes into operation (and subject to subitem (3)):
(a) terminate any of the following (modernisable instruments) that FWA considers are completely replaced by the modern award:
(i) award-based transitional instruments;
(ii) transitional APCSs; and
(b) if FWA considers that the modern award only partly replaces a modernisable instrument—vary the coverage terms of the modernisable instrument accordingly.
Note 1: The main provisions about transitional instruments are in Schedule 3, and the main provisions about transitional APCSs are in Schedule 9.
Note 2: This item does not limit the effect of any other provision of this Act under which a modernisable instrument ceases to cover a person from a time earlier than when the instrument is terminated or varied under this item.
(2) As soon as practicable after all modern awards made in the Part 10A modernisation process have come into operation, FWA must (subject to subitem (3)) terminate any remaining modernisable instruments.
(3) However, FWA must not, under this item:
(a) terminate a modernisable instrument that is an enterprise instrument or a State reference public sector transitional award, or that covers employees who are also covered by an enterprise instrument or a State reference public sector transitional award; or
(b) vary a modernisable instrument that is an enterprise instrument or a State reference public sector transitional award; or
(c) vary a modernisable instrument so that it ceases to cover employees who are also covered by an enterprise instrument or a State reference public sector transitional award.
Note 1: Item 9 of Schedule 6 deals with termination and variation of modernisable instruments to take account of the enterprise instrument or a State reference public sector transitional award modification process.
Note 2: Item 10 of Schedule 6A deals with termination and variation of State reference public sector transitional awards to take account of the State reference public sector transitional award modernisation process.
(4) FWA may establish a process for making decisions under this item to terminate or vary one or more modernisable instruments.
(5) FWA may advise persons or bodies about that process 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).”
[2] Item 3(2) requires Fair Work Australia to terminate modernisable instruments, other than those of the kind described in item 3(3)(a), as soon as practicable after all modern awards have come into operation. Based on the work carried out during award modernisation, a large number of relevant modernisable instruments have been identified. Those instruments have been derived from awards made by the Australian Industrial Relations Commission and the relevant State industrial authorities. For each of those instruments (with the exception of State reference transitional awards 2) there is a further instrument or instruments being one or more equivalent transitional APCSs. Item 3(4) permits the establishment of a process for terminating the relevant modernisable instruments. Item 3(5) provides for persons and bodies to be advised about the process. The main purpose of this statement is to advise all interested persons and bodies of the process for implementing the requirements of item 3(2).
[3] The process to be followed in implementing the requirements of item 3(2) will be:
(a) a list of award-based instruments, classified by reference to the most relevant modern award, will be published on the Fair Work Australia website by 30 April 2010 on the Termination of instruments web page; 3
(b) all of the award-based transitional instruments on the list, and the associated transitional APCSs, are liable to be terminated;
(c) any interested person or body may lodge a submission indicating that a particular modernisable instrument should not be terminated on any of the following grounds:
a. the instrument is not a modernisable instrument,
b. the modernisable instrument is one of a kind described in item 3(3)(a), or
c. any other ground under the Transitional Act;
(d) submissions should be lodged by 30 June 2010 and include particulars of the grounds on which it is claimed that the instrument should not be terminated;
(e) submissions may be lodged by email at amod@fwa.gov.au or by post at one of the Fair Work Australia addresses listed on the website; 4
(f) where a submission is received indicating that a particular modernisable instrument should not be terminated, the matter will be referred to a member of Fair Work Australia for hearing and decision; and
(g) modernisable instruments other than those referred to in (f) will be terminated as soon as practicable after 30 June 2010.
[4] All submissions received and any directions issued after 1 July 2010 will be published on the Fair Work Australia website Termination of instruments page. Organisations or persons who have lodged a submission or indicated an interest in the termination of instruments process will be placed on a subscriber list and notified by email of developments. Details of how to subscribe are available on the Termination of instruments web page.
PRESIDENT
1 See item 2(5)(a) of Schedule 3 to the Transitional Act.
2 See item 2A of Schedule 3 to the Transitional Act.
3 Go to www.fwa.gov.au/ and click on Awards & award modernisation, Award modernisation and then Termination of instruments.
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