[2011] FWAFB 3773 |
FAIR WORK AUSTRALIA |
DECISION |
Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Schedule 5, item 3—variation and termination of certain transitional instruments
JUSTICE GIUDICE, PRESIDENT |
MELBOURNE, 16 JUNE 2011 |
AWARD MODERNISATION – TERMINATION OF MODERNISABLE INSTRUMENTS
[1] This decision concerns the process for the termination of instruments which are modernisable under item 3 of Schedule 5 to the Fair Work (Transitional and Consequential Amendments) Act 2009 (Transitional Act). On 22 December 2010 we issued a decision which dealt with the legislative provisions, the various instruments relevant to the operation of item 3, ruled on a number of submissions relating to particular instruments and outlined some general principles. 1 We refer to this as the 22 December 2010 decision. This decision should be read in conjunction with the 22 December 2010 decision.
[2] It is necessary to refer to some of the important statutory provisions again. The principal provision is item 3 of Schedule 5. It reads 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).”
[3] Under item 3 of Schedule 5 Fair Work Australia is required to terminate modernisable instruments as soon as practicable after modern awards have come into operation. Generally speaking modernisable instruments are of two types: award-based transitional instruments and transitional Australian Pay and Classification Scales (APCSs).
[4] Award-based transitional instruments include:
• awards, formerly known as pre-reform awards, in operation federally immediately prior to 27 March 2006, not including the wages provisions (see transitional APCSs below);
• State reference transitional awards, based on transitional awards created on 27 March 2006 in all States except Western Australia (which has not referred relevant powers);
• State reference common rules which cover employers and employees subject to a common rule in Victoria prior to 31 December 2009; and
• NAPSAs, being transitional instruments which covered employers and employees who entered the federal system on 27 March 2006 and who were previously covered by a state award, not including the wages provisions (see transitional APCSs below). 2
[5] Transitional APCSs are the wages components of federal and state awards which were in operation immediately prior to 27 March 2006.
[6] Not all award-based transitional instruments and transitional APCSs are modernisable under item 3 of Schedule 5. 3 The following kinds are not:
• an enterprise instrument;
• a State reference public sector transitional award;
• an instrument that covers employees who are also covered by an enterprise instrument; and
• an instrument that covers employees who are also covered by a State reference public sector transitional award.
[7] In the December 2010 decision we invited parties to file further submissions by 4 March 2011. A number of submissions were filed. A number of answering or additional submissions have been made since that date. The decision concluded with the following paragraph:
“[99] In relation to modernisable instruments which are not the subject of any submission, either this Full Bench or another member of the tribunal will consider whether to terminate each instrument. In considering that question it will be necessary to have regard to the terms of item 3(3) and any relevant material concerning employees covered by enterprise instruments and State reference public sector transitional awards. In particular it will be necessary to consider whether the modernisable instrument covers employees who are also covered by an enterprise award-based instrument, an enterprise preserved collective State agreement, a Division 2B State enterprise award or a State reference public sector transitional award.”
[8] We have decided that the most convenient course is to adjourn this proceeding to permit termination of modernisable instruments to be carried out by individual members of Fair Work Australia in the first instance. The President will arrange for modernisable instruments which are liable to be terminated under item 3 of Schedule 5 to be allocated to the appropriate industry panel. Thereafter the panel heads will allocate the matters to members of their panel. We envisage that modernisable instruments which are liable to be terminated will be listed for hearing. While it is a matter to be decided by panel heads, it may be convenient to divide instruments into appropriate industry or geographic groupings for the purpose of hearings.
[9] Not all award-based transitional instruments will be included in the process. There would be no utility in allocating instruments which are clearly not modernisable instruments to industry panels for hearing. On the basis of proceedings so far, including the outcome of a request made to the General Manager in the 22 December 2010 decision, it is possible to identify a number of instruments which are within the terms of item 3(3)(a) of Schedule 5. First, a number of additional enterprise instruments have been identified. Secondly, a number of additional instruments have been identified which, although not enterprise instruments themselves, cover employees who are also covered by an enterprise instrument.
[10] In the 22 December 2010 decision we made rulings in relation to a large number of instruments on the basis of the submissions before us. 4 We expect that these rulings will provide some guidance to members and interested persons and bodies during the process. In that decision we also set out some general principles.5 For example, we made observations concerning the relevance of gaps in modern award coverage.6 Equally, we expect that these general principles will provide guidance in the process.
[11] There are two additional administrative matters which should be mentioned. The first is that where an instrument is identified as liable to be terminated under item 3 of Schedule 5 and allocated to a member for hearing, any submission which has already been made in relation to that instrument should be placed on the relevant file by officers in the award modernisation team. The second matter is that notification of hearings is likely to be by email based on the subscriber lists for the Termination of Instruments page on the Fair Work Australia website. 7 It is also anticipated that the President will issue a statement in due course providing more information concerning the process and the procedures to be followed.
PRESIDENT
Appearances:
E White of counsel for the United Firefighters’ Union of Australia.
B Avallone for News Corporation group of companies.
M Mead for the Australian Industry Group.
J Fetter with E McCoy for the Australian Council of Trade Unions.
S Maxwell for the Construction, Forestry, Mining and Energy Union (Construction and General Division).
C Estoesta for the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, known as the Australian Manufacturing Workers' Union.
R Medforth for Group Training Australia.
J Nucifora for the Australian Municipal, Administrative, Clerical and Services Union.
V Wiles for the Textile, Clothing and Footwear Union of Australia.
T McConville with S De Silva for Workforce Victoria.
A McCarthy for the Australian Nursing Federation.
A Leszczynski for the Finance Sector Union of Australia.
M De Vecchis for the Australian Salaried Medical Officers Federation.
T Wright for the CPSU, Community and Public Sector Union – SPSF Group.
K Barlow for the CPSU, Community and Public Sector Union – PSU Group.
L Smith with A McKenna for the Pharmacy Guild of Australia.
K Anderson for the Queensland Council of Unions.
D Ralston for the Queensland Public Sector Union.
M Moy for Dyno Nobel Asia Pacific Pty Ltd.
Hearing details:
2010
Melbourne.
Brisbane (by video link)
Perth (by video link)
Sydney (by video link)
September, 21.
2 See item 2(5)(a) of Schedule 5 to the Transitional Act.
3 Some types of instruments are modernisable under other provisions in the Transitional Act, namely: enterprise instruments and State reference public sector transitional awards; see Schedules 6 and 6A respectively.
4 Ibid. paras 40 to 95.
5 Ibid., see generally paras 14 to 39.
6 Ibid. para 35.
7 http://www.fwa.gov.au/index.cfm?pagename=awardsmoderntermination&page=introduction.
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