[2013] FWC 2493 |
FAIR WORK COMMISSION |
DECISION |
Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch. 5, Item 6 - Review of all modern awards (other than modern enterprise and State PS awards) after first 2 years
Spatial Industries Business Association
(AM2012/208)
Technical services | |
COMMISSIONER ROE |
MELBOURNE, 7 MAY 2013 |
Modern Awards Review 2012 - application to vary the Surveying Award 2010.
[1] This decision concerns an application by Spatial Industries Business Association (SIBA or the Applicant) to vary the Surveying Award 2010 (the Award). The application is made under Sch. 5, Item 6 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the Transitional Act) as part of the review of all modern awards which Fair Work Australia is required to conduct after the first two years of all modern awards coming into effect (the 2012 Review).
[2] The matter was listed for hearing on 19 September 2012. The relevant parties were directed to confer and I also assisted with conferences of the parties on 23 November 2012 and on 24 January and 27 February 2013. Various draft proposals arising from those conferences were posted on the website. The process resulted in a revised proposal by the Applicant which has the support of the Australian Federation of Employers and Industries (AFEI), Business SA, the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) and the Association of Professional Engineers, Scientists and Managers, Australia (APESMA).
[3] The matter was listed for hearing on 30 April 2013. There was no opposition to the revised proposal. I have considered the submissions and evidence from the Applicant and from Business SA, AFEI, the AMWU, and APESMA.
[4] The Applicant seeks to insert revised classification definitions into the Award. The revised structure proposes to recognise Registered Surveyors in addition to Licensed Surveyors. The current Award definitions had their origin in the previous Victorian State Award, the Land Surveyors Award (No 1 of 1987) and subsequent federal award. The current Award refers to the Institution of Surveyors Australia as the accrediting body for qualifications and this has been replaced by the Surveying and Spatial Sciences Institute. The Applicant argues that the current definitions reflect the land surveying field of work and do not adequately reflect other fields of surveying and engineering and mining surveying in particular. The Applicant argues that some of the terminology and qualifications in the Award do not reflect contemporary practice.
Relevant legislation
[5] Schedule 5, Item 6 of the Transitional Act provides:
“(1) As soon as practicable after the second anniversary of the FW (safety net provisions) commencement day, FWA must conduct a review of all modern awards, other than modern enterprise awards and State reference public sector modern awards.
(2) In the review, FWA must consider whether the modern awards:
(a) achieve the modern awards objective; and
(b) are operating effectively, without anomalies or technical problems arising from the Part 10A award modernisation process.
(2A) The review must be such that each modern award is reviewed in its own right. However, this does not prevent FWA from reviewing 2 or more modern awards at the same time.
(3) FWA may make a determination varying any of the modern awards in any way that FWA considers appropriate to remedy any issues identified in the review.
(4) The modern awards objective applies to FWA making a variation under this item, and the minimum wages objective also applies if the variation relates to modern award minimum wages.
(5) FWA may advise persons or bodies about the review 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).”
[6] Further provisions of the Act are also applicable and relevant to the 2012 Review. Sections 134 and 138 provide as follows:
“134 The modern awards objective
What is the modern awards objective?
(1) FWA must ensure that modern awards, together with the National Employment Standards, provide a fair and relevant minimum safety net of terms and conditions, taking into account:
(a) relative living standards and the needs of the low paid; and
(b) the need to encourage collective bargaining; and
(c) the need to promote social inclusion through increased workforce participation; and
(d) the need to promote flexible modern work practices and the efficient and productive performance of work; and
(e) the principle of equal remuneration for work of equal or comparable value; and
(f) the likely impact of any exercise of modern award powers on business, including on productivity, employment costs and the regulatory burden; and
(g) the need to ensure a simple, easy to understand, stable and sustainable modern award system for Australia that avoids unnecessary overlap of modern awards; and
(h) the likely impact of any exercise of modern award powers on employment growth, inflation and the sustainability, performance and competitiveness of the national economy.
This is the modern awards objective.”
“138 Achieving the modern awards objective
A modern award may include terms that it is permitted to include, and must include terms that it is required to include, only to the extent necessary to achieve the modern awards objective and (to the extent applicable) the minimum wages objective.”
Relevant Background and Authorities
[7] In considering this application I have had regard to the 2012 Review Full Bench decision of 29 June 2012. 1 The Full Bench said:
“[63] Under subitem 6(3) of Schedule 5, the Tribunal has a broad discretion to vary any of the modern awards in any way that it considers necessary to remedy any issues identified in the Review. However, subitem 6(4) provides that in making such a variation the Tribunal must take into account the modern awards objective in s.134 of the FW Act, and, if varying modern award and minimum wages, the minimum wages objective in s.284.”
[8] The Full Bench also said:
“[89] In circumstances where a party seeks a variation to a modern award in the Review and the substance of the variation sought has already been dealt with by the Tribunal in the Part 10A process, the applicant will have to show that there are cogent reasons for departing from the previous Full Bench decision, such as a significant change in circumstances, which warrant a different outcome.”
[9] The Full Bench said in relation to the application of section 138 of the Act to the 2012 Review:
“[33] We are satisfied that s.138 is relevant to the Review. The section deals with the content of modern awards and for the reasons given at paragraph [25] of our decision it is a factor to be considered in any variation to a modern award arising from the Review. We also accept that the observations of Tracey J in SDAEA v NRA (No.2), as to the distinction between that which is “necessary” and that which is merely desirable, albeit in a different context, are apposite to any consideration of s.138.
[34] While s.138 is relevant to the Review there is still the question of the extent of its impact and the circumstances in which it will have on an application to a variation determination. The supplementary submissions revealed a diversity of views about these issues. We are not persuaded that these issues have been the subject of sufficient debate at this stage. The precise impact of s.138 is a question best considered in the context of a particular application. We agree with the RCAV’s supplementary submission that “the nature of the evidence and the facts as found arising from that evidence will condition the exercise of power and the ultimate outcome required to be determined by the review”.
[10] When the Award was made the issue of the alleged inadequacies of the classification definitions was discussed. I accept the evidence of the AMWU, APESMA and SIBA that SBIA proposed an alternative classification structure and definitions but this was opposed on a range of grounds by the AMWU and APESMA. Those organisations argued that the proposal was based too closely on the situation in Queensland, failed to recognise professional registration, reduced wage rates for degree qualified graduates, and removed important aspects of the career path and in particular the use of qualifications as benchmarks for various levels. However, those organisations did accept that there should be further discussions about enhancement to the classification structure and definitions to reflect contemporary practice.
[11] Ultimately, the classification structure that was adopted was based on the pre-reform awards, most notably the Land Surveyors General – Award 1998. However in doing so, the Full Bench of the AIRC in its Decision 2 in relation to the making of Stage 3 modern awards, noted as follows:
“Surveying Award 2010
[252] A number of changes have been made to the exposure draft taking into consideration the submissions of the participants. Mostly these are minor matters which maintain consistency with other professional awards and properly balance the matters derived from the various awards.
…
[254] The final matter relates to classification descriptions and wage rates. As to wage rates, the Spatial Industries Business Association proposed higher rates than those currently in the exposure draft. Whilst we appreciate the reasons for the proposal, we prefer the assessment we have made in relation to properly fixed minimum wages. Turning to the classification structure, there is a difference of view as to the role qualifications should play in the structure. It appears to us that there is a genuine desire to review the classification definitions but this will require more time. Accordingly we have retained the structure in the exposure draft as it has been drawn from existing instruments. If at some time in the future the discussion between interested parties results in new definitions an appropriate application can be made.”
[12] I am therefore satisfied that it is consistent with the decision of the Full Bench at the time of making the Award to revisit the classification structure and definitions as part of the 2012 Modern Award Review. I am satisfied that the current classification structure contains anomalies and technical errors which should be corrected. In particular, I am satisfied that the current definitions reflect the land surveying field of work but do not adequately reflect other fields of surveying, engineering and mining surveying in particular. I am also satisfied that some of the terminology and the minimum training or qualifications requirements in the Award are incorrect, outdated or do not reflect contemporary practice. Furthermore, I am satisfied that the classification structure and definitions must be varied to ensure that the Award is meeting the modern awards objective.
The particular variation proposed.
[13] The proposed variation amends the duties or indicative tasks in the definitions to ensure that they are not only specific to the work of cadastral surveying but that they are also applicable across all fields of surveying.
[14] The proposed variation ensures the references to qualifications and registration and licensing requirements are correct and updated. In particular the variation:
● Recognises the role of the accrediting body, the Surveying and Spatial Sciences Institute, which replaces the Institution of Surveyors Australia.
● Recognises the surveying fields of land surveying, engineering surveying and mining surveying.
● Clarifies the bachelor degree requirement for professional entry.
● Removes the reference to Licensed Surveyor from the Professional survey definition and instead includes Licensed Surveyor as part of a consolidated definition of Licensed/Registered Surveyor. This reflects the jurisdiction throughout Australia and the full breadth of the surveying industry not just land surveying.
● Ensures references to the qualifications are updated and broadened to reflect the situation throughout Australia and the breadth of the industry and to ensure consistency with the qualifications requirements in the technical field at equivalent levels in the Manufacturing and Associated Industries and Occupations Award 2010.
[15] The work value of each level as reflected in the supervision, level of work and level of qualifications has remained essentially unchanged. The relativity with the equivalent levels in the Manufacturing and Associated Industries and Occupations Award 2010 (Manufacturing Award) has been maintained. The qualifications and levels in the Land Surveyors General Award 1998 were aligned with the predecessors to that Award.
[16] The rationale for updating the minimum qualifications requirements are set out in the witness statement of Anne Donnellan of the AMWU. The qualifications requirements in the Award as currently drafted include qualifications such as the advanced certificate and associate diploma which no longer form part of the national qualifications framework. The current classification structure aligns the associate diploma qualification title with the diploma title in the new Australian Qualifications Framework rather than the advanced diploma title. The pay and qualification level of Level 3 in the Surveying Award is aligned with the principal technical officer (C2b) in the Manufacturing Award. However, in the Surveying Award the qualification was wrongly aligned with the advanced diploma level in the new qualifications framework. The advanced diploma qualification in the new qualifications framework aligns with the C3 level in the Manufacturing Award which should align with Level 4 in the Surveying Award.
[17] The proposed variation provides that wage relativities and qualifications requirements of each level for those who are not professionals be directly based upon those that apply to the technical occupations now part of the Manufacturing Award. The qualifications requirements have been updated to be consistent with the updated qualifications requirements for the equivalent level in the Manufacturing Award. I consider this to be the appropriate approach.
[18] The following is the alignment of pay and qualifications levels in the Award with the pay and qualification levels for the technical field in the Manufacturing Award. Level 1 and Level 2 align with the rates in the Professional Employees Award.
Surveying Award |
Manufacturing and Associated Industries and Occupations Award |
Level 12 |
C13 |
Level 11 |
90% of C10 (NOTE 1). |
Level 10 |
C10 (NOTE 2) |
Level 9 |
C8 (NOTE 3) |
Level 8 |
C6 |
Level 7 |
C5 |
Level 6 |
C4 |
Level 5 |
C3 |
Level 4 |
C2a |
Level 3 |
C2b |
NOTE 1. Level 11 in the Surveying Award and in the earlier Land Surveyors General Award 1998 has an historic relativity of 90% which does not align with the C11 classification in the Manufacturing and Associated Industries and Occupations Award which has an historic relativity of 92.4%. The Certificate II level qualification or equivalent is the minimum training requirement for C11. It is proposed that Certificate II or equivalent be the minimum training requirement for Level 11 in the Surveying Award.
NOTE 2. The minimum training requirement Certificate III- Technician or Laboratory Skills is associated with C9 in the Manufacturing and Associated Industries and Occupations Award. Therefore it is proposed that 85% towards Certificate III or equivalent should be the benchmark associated with Level 10 in the Surveying Award.
NOTE 3. The minimum training requirement for C8 in the Manufacturing and Associated Industries Award and that proposed for Level 9 in the Surveying Award is 40% towards an Advanced Diploma or 60% towards a Diploma. It proposed to also provide for 85% towards Certificate IV in the Surveying Award. In the Manufacturing and Associated Industries Award the achievement of the full Certificate IV qualification in the technical fields is associated with C7.
[19] I am satisfied that updating the minimum training requirements in the proposed classification structure is appropriate and consistent with the approach taken for equivalent levels in the technical field in the Manufacturing and Associated Industries and Occupations Award 2010.
[20] The duties and indicative tasks for each level have been updated to better reflect industry practice and the breadth of the occupation without changing the work value of each level. The classification names have also been simplified and made consistent.
[21] The variation proposed by the parties also corrects other technical errors including grammatical errors.
[22] The parties propose that the % relativities be included with the titles for each of the classification levels to ensure that the history and alignment of particular levels is more easily identified. I am satisfied that this is appropriate as has occurred in the Manufacturing and Associated Industries and Occupations Award 2010. However, I consider it appropriate that the Surveying Award should contain the same explanatory provision as occurs in Clause B2.2 of the Manufacturing Award as follows:
“B.2.2 The percentage wage relativities to C10 in the table in clause B.2.1 reflect the percentages prescribed in 1990 in Re Metal Industry Award 1984—Part I (M039 Print J2043). The minimum wages in this award do not reflect these relativities because some wage increases since 1990 have been expressed in dollar amounts rather than percentages and as a result have reduced the relativities.”
[23] I will therefore amend the draft determination proposed by the parties to include the following provision:
B.1.16
The percentage wage relativities to Level 10 in the classification definitions in Clause B.1 reflect the percentages prescribed in 1990 in Re Metal Industry Award 1984—Part I (M039 Print J2043) and in the Land Surveyors General Award 1998 (AP787068CRV Print N4014) The minimum wages in this award do not reflect these relativities because some wage increases since 1990 have been expressed in dollar amounts rather than percentages and as a result have altered the relativities.
[24] During the proceedings on 30 April 2013 I identified a number of drafting issues with the determination proposed by the parties and APESMA also identified two errors. The parties agreed that the amendments I suggested were appropriate and better reflected the intention of the parties. The following amendments will therefore be made to the determination proposed by the parties:
a. At each classification level under the sub-heading “Duties” the expression “Their duties” is replaced by “Indicative duties”.
b. In the variations to the definitions in Clause 3.1 replace “Associate Member” in the Graduate Surveyor definition with “Associate Member- Graduate”.
c. In Clause B.1.1 Definitions in the definition of Surveying replace “of” with “or “ in first line where it first appears.
d. In Clause B.1.1 Definitions in the definition of “or equivalent” replace “state Training Authority” with “State Training Authority”.
e. In Clause B.1.8 second paragraph replace “part time party leader” with “acting or part time party leader”.
f. In Clause B.1.8 first paragraph replace “and a basic knowledge of civil engineering, geology, soil and fauna/environmental aspects relevant for surveying practice” with “and a basic knowledge of those aspects of civil engineering, geology, soil and fauna/environmental disciplines relevant for their surveying practice”.
g. In Clause B.1.9 in the first paragraph add the word “may” in front of “include”.
h. In Clause B1.13 alter the numbering to B.1.13.
i. In Clause B.1.13 in the second paragraph put a full stop after “some business development tasks” and replace “who is” with “They are” and add “and” after “government agencies and clients,”.
j. In B.1.4 in the second paragraph put a full stop after “business management and development” and replace “who is” with “They are”.
k. In B.1.15((a)(iv) replace “Level 3 Professional Surveyor” with “Level 3 - Surveyor Level IV”.
l. In B.1.6 to B.1.14 correct the sub-paragraph numbering.
[25] I am satisfied that the proposed variation (together with the amendments to which I referred earlier) to the classification definitions in the Surveying Award 2010 is appropriate and consistent with the legislative requirements and objectives. I will make a Determination consistent with this.
COMMISSIONER
Appearances:
Mr Jack De Lange appeared for SIBA.
Mr Josh Moriarty appeared for the AMWU.
Mr Michael Butler appeared for APESMA.
Ms Persephone Stuckey-Clarke appeared for AFEI.
Hearing details:
2013
Sydney
April 30
2 [2009] AIRCFB 826.
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