[2014] FWCFB 3649 |
FAIR WORK COMMISSION |
DECISION |
Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch. 6, Item 4 - Application to make a modern award to replace an enterprise instrument.
METROPOLITAN FIRE AND EMERGENCY SERVICES BOARD ADMINISTRATIVE OFFICERS, PROFESSIONAL ENGINEERS AND SUPPORT STAFF AWARD 2000
Fire fighting services | |
VICE PRESIDENT WATSON |
MELBOURNE, 20 JUNE 2014 |
Full Bench Preliminary Decision Threshold Issues for the Metropolitan Fire and Emergency Services Board Administrative Officers, Professional Engineers and Support Staff Award 2000 - who can make a valid application to modernise the award - discretionary power to allow amendment after provisions of Transitional Act have come into operation - discretionary factors when time expired to make application - Application not valid - Award terminated. Fair Work Act2009 s.586, Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 Schedule 3, Items 3(1) and (2); Schedule 6 Item 4, Workplace Relations Act 1996 ss.557, 567(2), 718.
Introduction
[1] A preliminary issue arises in relation to an application for the modernisation of the Metropolitan Fire and Emergency Services Board Administrative Officers, Professional Engineers and Support Staff Award 2000 (the Administrative Officers Award). The Metropolitan Fire and Emergency Services Board (the MFB) submits that the United Firefighters Union of Australia (the UFU), who made the made the application to modernise the Administrative Officers Award, is not able to make the application. The UFU submits that it is so entitled, and in the alternative, it and a member of the UFU, Con Patralis, make application to amend the application to add Mr Patralis as an applicant.
[2] At the hearing of this matter Mr J McKenna of counsel appeared for the UFU. Mr F Parry QC with Mr R Dalton of counsel appeared for the MFB.
Is the Application Valid?
[3] The UFU is not a respondent to the Administrative Officers Award. It nevertheless made an application to make a modern enterprise award to replace the Administrative Officers Award on 30 December 2013. No party expressly bound by the award made such an application.
[4] Item 4 of Schedule 6 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Transitional Act) contains the following sub-items:
(2) On application, the FWC may make a modern award (a modern enterprise award) to replace an enterprise instrument.
(3) The application may be made only:
(a) by a person covered by the enterprise instrument; and
(b) during the period starting on the WR Act repeal day and ending at the end of 31 December 2013.
[5] Item 3(1) and (2) of Schedule 3 to the Transitional Act relevantly provide:
3 The employees, employers etc. who are covered by a transitional instrument and to whom it applies
(1) A transitional instrument covers the same employees, employers and any other persons that it would have covered (however described in the instrument or WR Act) if the WR Act had continued in operation.
Note 1: The expression covers is used to indicate the range of employees, employers etc. to whom the instrument potentially applies (see subitem (2)). The employees, employers etc. who are within this range will depend on terms of the instrument, and on any relevant provisions of the WR Act.
Note 2: Depending on the terms of a transitional instrument and any relevant provisions of the WR Act, the instrument’s coverage may extend to people who become employees after the instrument becomes a transitional instrument.
(2) A transitional instrument applies to the same employees, employers and any other persons the instrument covers as would, if the WR Act had continued in operation, have been:
(a) required by the WR Act to comply with terms of the instrument; or
(b) entitled under the WR Act to enforce terms of the instrument.
Note: The expression applies is used to indicate the range of employees, employers etc. who are required to comply with, or can enforce, the terms of a transitional instrument.
[6] Section 567(2) of the Workplace Relations Act 1996 (the WR Act) provided that when the Australian Industrial Relations Commission (AIRC) makes an award, it must promptly give the Industrial Registrar, amongst other things, a list specifying the employers, employees and organisations bound by the award. Under section 557 of the WR Act the AIRC may make an order varying the award to bind an employer, employee or organisation to the award. Section 718 of the WR Act provided that an organisation of employees that has a member affected by a breach of an award may apply for a penalty for breach of the award. The dispute settlement provisions of the award also provide for roles of employee representatives and unions which are not defined in the award.
[7] When the AIRC made the Administrative Officers Award it did not specify the UFU as a party bound by it. Two other registered organisations of employees and the MFB were named as respondents. The UFU made no subsequent application to be bound. It is conceded however that the UFU did however have members bound by the award. The questions therefore are, first, whether the UFU became bound by virtue of this membership, the enforcement provisions of the WR Act and the dispute settlement provisions of the Administrative Officers Award and secondly, whether this leads to the conclusion that the UFU was covered by the Award for the purposes of Item 4 of Schedule 6.
[8] In our view the UFU was not bound or covered by the Administrative Officers Award by virtue of these provisions. The term ‘bound’ had a particular meaning in the WR Act and in our view required specification in the terms of the award made by the AIRC or the statute of the name of the entity or the class of employees or employers bound. Nor are we of the view that the UFU was covered by the award in the sense used in the Transitional Act. The concept of being covered is broader than being bound in that it includes prospective employees. We do not see any basis for it to encompass an organisation not expressly bound that has a member bound and covered by the award It follows that the UFU was not able to make the application for a modern enterprise award as it purported to do in late December 2013. If the application is to survive the application for an amendment must be granted.
Application for Amendment
[9] Mr Con Patralis is a member of the UFU covered by the Administrative Officers Award. He and the UFU make application for him to be added as an applicant for a modern award to replace the Administrative Officers Award. They rely on the terms of s.586 of the Fair Work Act 2009 as conferring a broad power to allow an amendment even when the time for making an application has expired.
[10] We accept that there is power to allow the amendment. As to the discretionary factors relevant to granting any such amendment we note the following:
● None of the parties expressly bound by the Administrative Officers Award (including the two named registered organisations of employees) made an application for a modern enterprise Award by 31 December 2013.
● In the absence of an application to make a modern enterprise award by 31 December 2013, the Administrative Officers Award terminated by virtue of Sub-item 9(4) of Schedule 6 to the Transitional Act.
● An application to make the modern enterprise award could have been made at any time since the repeal of the WR Act.
● A failure to allow an amendment will deny Mr Patralis (and any interveners in the application) the opportunity to argue that a modern enterprise award should be made to apply in lieu of the relevant modern award.
● The MFB is unlikely to have suffered any prejudice by virtue of the amendment because it was made aware of the application filed by the UFU within the relevant time period.
● The MFB is likely to contest the making of a modern enterprise award and the authorities dealing with contested applications suggest that the provisions of the Transitional Act represent a high hurdle to such an application.
[11] In all of the circumstances we are not inclined to exercise our discretion in favour of granting an amendment to the application. In particular we note the difficult task ahead for the applicant, the previous opportunities that were available and the legal consequences of no application being made by 31 December 2013. Granting the application would create a valid application retrospectively when the provisions of the Transitional Act have come into operation and brought about the termination of the award.
Conclusions
[12] The application made by the UFU is not a valid application. We are not disposed to grant an application to amend the application to allow the creation of a valid application. We note that it follows from these conclusions that the Administrative Officers Award terminated on 31 December 2013 by virtue of item 9(4) of the Transitional Act.
VICE PRESIDENT
Appearances:
Mr. F. Parry, QC, and with him R Dalton for Metropolitan Fire and Emergency Services Board.
Mr. J. McKenna, of Counsel for United Firefighters Union of Australia
Hearing details:
2014
Melbourne
28 May
Final written submissions:
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