Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch. 6, Item 4 - Application to make a modern award to replace an enterprise instrument.

Application by Industrial Staff Union - Whether the Public Service Association of New South Wales Industrial and Associated Officers (Secure Employment) Award 2009 is capable of being the subject of an application - Factors to be considered when making a modern enterprise award - No case made out for making of modern enterprise award - Industrial Relations Act 1996 (NSW), s.146A - Fair Work (Transitional Provisions and Consequential Amendments Act 2009, Schedule 6 Sub-Item 4(5), Schedule 6 Item 6, Schedule 6 Item 8(8), Schedule 6 Item 9(2).

Introduction

[1] This decision relates to an application to make a modern enterprise award to replace the Public Service Association of New South Wales Industrial and Associated Officers (Secure Employment) Award 2009 (the Award). The application is made by the Industrial Staff Union - PSA of NSW (the ISA). It is opposed by the other party to the Award, the Public Service Association Professional Officers’ Amalgamated Union of New South Wales (the PSA).

[2] The Award was made by Commissioner Bishop of the New South Wales Industrial Commission on 23 December 2009 under s.146A of the Industrial Relations Act 1996 (NSW). The ISA contends that the Award is an enterprise instrument under Schedule 6 of the Fair Work (Transitional Provisions and Consequential Amendments Act 2009, (the Transitional Act) and can therefore be subject to an application under Item 4 of that Schedule to replace it with a modern enterprise award.

[3] The PSA raises two preliminary points. First, it contends that the ISU does not have standing to bring the application. Secondly, it contends that the Award is not an enterprise instrument. At the hearing of the application on 10 July 2014, Mr B Stephens appeared for the ISU and Mr N Keats, of counsel, appeared for the PSA. At the hearing the full bench heard from the parties on the preliminary matters and the merits of the application. Given the conclusion we have reached on the merits of the application it is unnecessary that we express a view on the preliminary matters.

The Legislative Task

[4] The role of the Commission in an application to make a modern enterprise award is governed by sub-item 4(5) of Schedule 6 to the Transitional Act which provides:

(5)       In deciding whether or not to make a modern enterprise award, and in determining the content of that award, the FWC must take into account the following:

(a)  the circumstances that led to the making of the enterprise instrument rather than an instrument of more general application;
(b)  whether there is a modern award (other than the miscellaneous modern award) that would, but for the enterprise instrument, cover the persons who are covered by the instrument, or whether such a modern award is likely to be made in the Part 10A award modernisation process;
(c)  the content, or likely content, of the modern award referred to in paragraph (b) (taking account of any variations of the modern award that are likely to be made in the Part 10A award modernisation process);
(d)  the terms and conditions of employment applying in the industry in which the persons covered by the enterprise instrument operate, and the extent to which those terms and conditions are reflected in the instrument;
(e)  the extent to which the enterprise instrument provides enterprise-specific terms and conditions of employment;
(f)  the likely impact on the persons covered by the enterprise instrument, and the persons covered by the modern award referred to in paragraph (b), of a decision to make, or not make, the modern enterprise award, including any impact on the ongoing viability or competitiveness of any enterprise carried on by those persons;
(g)  the views of the persons covered by the enterprise instrument;
(h)  any other matter prescribed by the regulations.

[5] It is also necessary to consider the modern enterprise awards objective: Item 6 of Schedule 6 of the Transitional Act. This is a legislative requirement for the Commission to recognise, in the context of the modern awards objective, that modern enterprise awards may provide terms and conditions tailored to reflect employment arrangements that have been developed in relation to the relevant enterprises. We turn to consider these factors in relation to the circumstances of this case.

The circumstances that led to the making of the enterprise instrument rather than an instrument of more general application: Item 4(5)(a)

[6] The Award has its origins in 1994 as an award that only contained an entitlement to sick leave. It was modified over the years to reflect test cases of the NSW Industrial Commission in relation to Personal/Carer’s Leave, union deductions and Family Leave. From the time the Award was made in 2009 it also contained provisions regarding dispute settlement, consultation, salaries, redundancies and secure employment. It covers the industrial staff of the PSA including industrial officers, organisers, information officers and education officers.

Whether there is a modern award that would, but for the enterprise instrument, cover the persons who are covered by the instrument: Item 4(5)(b)

[7] It appears that there is no modern award that applies to employees covered by the Award. The professional nature of their employment is such that they are not engaged wholly or principally on clerical work within the scope of the Clerks - Private Sector Award 2010.

The content of the Clerks - Private Sector Award 2010: Item 4(5)(c)

[8] Given our conclusion above, this factor is not applicable.

The terms and conditions of employment applying in the industry: Item 4(5)(d)

[9] The ISU contends that the public service industry and the industrial relations industry are both relevant to the application. It points to the detailed and prescriptive terms and conditions in the public service industry and the salaries paid by other unions which it contends are comparable to the salaries in the Award. The PSA contends that traditionally the types of employees concerned are award-free and Item 8(8) of Schedule 6 to the Transitional Act requires modern enterprise awards to not cover such classes of employees.

The extent to which the Public Service Association of New South Wales Industrial and Associated Officers (Secure Employment) Award 2009 provides enterprise-specific terms and conditions of employment: Item 4(5)(e)

[10] The ISU contends that salaries and conditions are linked to the NSW public sector and that three unique clauses relate to the specific context of trade union staff. The PSA contends that a link to the public sector is in fact a link to a different industry to the industrial relations industry in which the PSA operates and that the other clauses merely deal with circumstances in which an employee may be made redundant.

The likely impact on the persons covered by the Public Service Association of New South Wales Industrial and Associated Officers (Secure Employment) Award 2009, and the persons covered by the Clerks - Private Sector Award 2010, of a decision to make, or not make, the modern enterprise award: Item 4(5)(f)

[11] As there is no enterprise agreement applying to the PSA industrial staff, the termination of the Award would appear to remove some entitlements. The PSA submits that by providing a link to entitlements in the public sector it will continue to be bound by instruments outside its control and any attempt to modify them will place it in conflict with its membership.

The views of the persons covered by the enterprise instrument: Item 4(5)(g)

[12] It appears that the ISU and its members support the continuation of an enterprise instrument. The PSA does not.

Any other matter prescribed by the regulations: Item 4(5)(h)

[13] There are currently no matters prescribed.

Should a modern enterprise award be made?

[14] The Award is of limited scope covering a small group of employees, who perform work that is usually not covered by awards. The Award has historically covered an even more limited range of matters. Its current provisions flow some terms and conditions from the NSW public service to the industrial staff dealing with such matters on behalf of PSA members. As part of this application the ISU are seeking to expand the classes of employees covered by the Award and the range of matters it deals with.

[15] In our view the circumstances of this matter provide an insufficient basis for making a modern enterprise award. It appears to us that the application is more an attempt to flow actual public service conditions to PSA staff than a genuine attempt to establish an appropriate safety net for traditional award-covered employees. Such an approach is in our view inconsistent with the modern awards objective and the safety net nature of awards within the federal workplace relations system. A more appropriate vehicle to pursue such matters may be the pursuit of an enterprise agreement on mutually acceptable terms.

Conclusions

[16] If the PSA submission that the instrument is not an award and cannot give rise to a valid application is correct, the instrument no longer exists. In any event, as we have not been persuaded to make a modern enterprise award for PSA industrial staff, any existing instrument terminates on the date of this decision in accordance with Item 9(2) of Schedule 6 to the Transitional Act.

VICE PRESIDENT

Appearances:

Mr B. Stephens and Ms M. Mackintosh for the Industrial Staff Union.

Mr N. Keats, of Counsel, with Mr A. Holland, for Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales.

Hearing details:

2014.

Melbourne.

10 July.

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<Price code C, RA120783 PR552999 >