[2010] FWA 960

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FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.158 - Application to vary or revoke a modern award

Mr Noel Birse
(AM2010/1)

Airport operations

VICE PRESIDENT WATSON

SYDNEY, 15 MARCH 2010

Variation to the Airport Employees Award 2010 – remote localities allowance – whether should be extended to Yulara – whether necessary to achieve modern awards objective – Fair Work Act 2009, ss 134, 157, 158

[1] This decision concerns an application by Mr Noel Birse pursuant to ss 157–160 of the Fair Work Act 2009 (the Act) to vary the Airport Employees Award 2010 1 (the 2010 Modern Award) to include Yulara (Ayers Rock) as a location for receipt of a remote localities allowance under the award. The applicant seeks at least the same remote localities allowance applying to Alice Springs.

[2] The application was made on 6 January 2010. The applicant indicated his intention that the matter be considered under s 157 of the Act. I made directions for the filing of full written submissions of interested parties in relation to this matter. Only the applicant filed a submission. In that submission the applicant sought to amend the application by seeking to include Yulara as a location qualifying for an additional period of annual leave for service at a remote locality in clause 31.2 of the 2010 Modern Award.

[3] Mr Birse contends that Yulara is comparable to Tenant Creek for which a remote localities allowance is payable under the 2010 Modern Award. He contends that Yulara and Tennant Creek are both deemed “special areas” for zone tax offsets by the Australian Taxation Office. His submissions provide details of the costs and disabilities associated with being based at Yulara.

[4] Section 157 provides for a limited ability to vary modern awards outside the four yearly review of all awards. In order to make a variation Fair Work Australia must be satisfied that the variation is necessary to achieve the modern awards objective. This objective, contained in s 134 of the Act provides:

[5] The approach of the Australian Industrial Relations Commission in award modernisation was to give effect to the award modernisation objectives in the Workplace Relations Act 1996 by paying particular regard to the content of pre-existing instruments. The 2010 Modern Award was made with particular regard to the previous federal award, the Airport Employees Award 1999. 2 That award contained a clause regarding remote localities which contained allowances for the same localities as the 2010 Modern Award. Yulara was not one of the locations in respect of which an allowance was payable.

[6] The 2010 Modern Award also contains transitional provisions for location allowances in Western Australia and the Northern Territory effectively preserving pre-existing allowances for a period of five years. Such a provision, standard in modern awards, will allow a review of isolation and locality allowances prior to the expiry of the term on 31 December 2014.

[7] It immediately appears anomalous that an allowance for the cost and inconvenience of working in Darwin and Alice Springs would not apply to working in Yulara. However there are no doubt many other locations not on the list of locations where much the same could be said. Because this matter was not raised by any party during award modernisation and the main parties supported the existing terms of the award this anomaly has not been considered in any detail.

[8] I am satisfied that the variation is necessary to achieve the modern awards objective. The inconsistent or anomalous application of award provisions to different employees covered by the award is not in my view fair. However I make this finding in the absence of any opposition to the variation and in the absence of any submissions on the requirements of s 157 by any party. Further, my attention has not been drawn to any previous consideration of the locations intended to be in receipt of a remote location allowance.

[9] I am also satisfied that a case has been made out on the merits of the matter to make the variation. The disabilities associated with working in Yulara warrant the payment of an allowance at least at the level of the allowance at Alice Springs.

[10] I note that an opportunity to review the various remote and district allowances in this award and generally in modern awards will first arise in 2012. I suggest that the position of this anomaly be considered by those affected by the 2010 Modern Award in that review. To this end I will provide for an allowance at the Alice Springs level. This can be reviewed further during the 2 year review.

[11] Because the annual leave provision ties entitlements to additional leave to work in remote locations for which a location allowance is payable I will also amend clause 31.2 to provide that a further five days leave is required to be given to employees based at Yulara.

[12] This decision is made on the basis of the circumstances before me including the absence of any opposition to the application.

VICE PRESIDENT WATSON

 1   MA000049

 2   AP768388




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