[2010] FWAFB 286 |
FAIR WORK AUSTRALIA |
DECISION |
Workplace Relations Act 1996
s.576H—Commission may vary modern awards
Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch. 5, Item 14—Variation of modern award
AIRPORT EMPLOYEES AWARD 2010
[MA000049]
JUSTICE GIUDICE, PRESIDENT |
MELBOURNE, 20 JANUARY 2010 |
[1] This decision concerns two applications to vary the Airport Employees Award 2010 1 (the modern award). The applications were made pursuant to s.576H of the Workplace Relations Act 1996 and were not determined by 31 December 2009. The applications will be determined by Fair Work Australia pursuant to item 14 of Schedule 5 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009.2
[2] The first application, made by the Association of Professional Engineers, Scientists and Managers, Australia (APESMA), seeks to vary the modern award in relation to salaries and classification definitions for professional engineers. The second application, made by the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (known as the Australian Manufacturing Workers’ Union) (AMWU) and the Community and Public Sector Union (CPSU), seeks to vary the modern award in a number of respects.
[3] The applications seek to remedy alleged errors in the terms of the modern award made during the award modernisation process. No submissions were made in opposition to the changes. We will deal with the matters by subject matter.
Minimum Pay Rates
[4] The AMWU and CPSU submit that the method of calculating current salaries following the addition of weekly wage adjustments in the Airport Employees Award 1999 3 was in error because a different divisor (52.1666) was used for converting the annual salary to a weekly amount to the multiplier (52) for converting the weekly rate back to an annual salary. We accept that the same factor should be used and will vary the modern award accordingly.
[5] The AMWU and CPSU submit that the modern award should include pay points for each classification level. The relevant predecessor award obviously had an extensive public sector history and in the past also probably applied on a paid rates basis. The modern award will apply to many private sector organisations. The classifications are extensive and detailed. In general we have not included pay points in modern awards. We consider that the current approach of having a single pay rate for each classification, except for level one of the graduate engineer, is appropriate. There is therefore no purpose in inserting a pay point progression clause.
[6] APESMA submits that salary levels and classification descriptions from the Airport Employees Award 1999 4 should have been inserted in this award rather than those from the Professional Employees Award 2010.5 The application is not opposed. We will vary the modern award accordingly. Consistent with the approach we have adopted however we will not include multiple pay points for the classification levels apart from level 1.
Travel allowance
[7] The AMWU and CPSU seek to convert the travel allowance to a percentage of the standard rate. As the allowance is in the nature of reimbursement of expenses rather than a work disability we will retain the allowance as a dollar figure. The allowance will be adjusted in accordance with cl.21.6.
Flexible working arrangements
[8] The AMWU and CPSU seek to insert clauses regarding rostering and make up time. In our view the flexibility sought to be made available by the changes is already available under the modern award and the changes are unnecessary.
Ordinary hours
[9] The AMWU and CPSU submit that cl.30.1(a) carries over an error from the underpinning award by referring to the rate payable for work performed outside ordinary hours Monday to Saturday when ordinary hours can only be worked Monday to Friday. In our view the submission is based on a misreading of the clause. The clause deals with the rate of overtime for work outside ordinary hours and creates a distinction between the rate for such overtime on Monday to Saturday compared to Sunday (cl.30.1(b)). All work performed on a Saturday or Sunday is necessarily overtime. The change sought would remove the provision for the overtime rate for Saturday. No amendment to the clause is required.
Parental leave
[10] The AMWU and CPSU seek to carry over a provision from the relevant predecessor award to the effect that absence on paid parental leave is regarded as service for all purposes. The significance of this change appears to be in relation to the accrual of other leave entitlements including annual leave, long service leave and personal leave. These entitlements arise from the National Employment Standards (NES) and not the modern award. We are reluctant to modify the effect of the NES in relation to these entitlements. Our general approach has been to allow such leave to be dealt with by the NES without variation or supplementation on an award by award basis. The proposed variation is rejected.
Public holidays
[11] The AMWU and CPSU seek supplementation of the Public Holidays provisions of the NES to the extent of an additional public holiday and public holidays which fall on a weekend. The NES deals with public holidays on a comprehensive basis and prescribes uniform minimum conditions. It would not be appropriate to supplement these provisions simply to maintain more generous arrangements. There does not appear to be any other basis for the claim. The proposed variation is rejected.
Order
[12] An order giving effect to our decision is published in conjunction with these reasons.
PRESIDENT
1 MA000049.
2 Schedule 5 was modified by the Fair Work Legislation Amendment Regulations 2009 (No.2) on 14 December 2009.
3 AP768388.
4 AP768388.
5 MA000065.
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