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 "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) (188V) - Industry Award coverage - no modern award currently applicable to rescue helicopter aircrew - matter to be adjourned pending the making and determination of an application for industry wide award coverage of rescue helicopter aircrew - Fair Work (Transitional Provisions and Consequential Amendments Act 2009, Schedule 6 Item 4, Schedule 6 Sub-Item 4(5), Schedule 6, Item 6.

Introduction

[1] This decision relates to an application by the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (AMWU) for the making of a modern enterprise award to replace the CHC Helicopters (Aircrew/Rescue Crew) Award 2002.

[2] CHC Helicopters indicated to the Commission that it is not opposed to the making of the award and did not take part in the proceedings. The AMWU was represented by Ms J. Tran and Mr M. Nguyen.

The Legislative Task

[3] 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 Fair Work (Transitional Provisions and Consequential Amendments Act 2009 (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.

[4] 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.

Industry Award coverage

[5] At the hearing of this application it emerged that there is currently no modern award applicable to rescue helicopter aircrew and that there are at least three other operators that provide helicopter rescue services that are all award free. These operators, and CHC itself, all have enterprise agreements covering aircrew.

[6] In response to a question from the Commission, the AMWU indicated that it was considering making an application for an industry award covering rescue helicopter aircrew or an amendment to the scope of an existing award to achieve that outcome. In our view there is much to commend this approach. It would provide modern award coverage of all rescue helicopter aircrew and provide a common safety net for bargaining for all groups of employees. There would appear to be no impediment to making and determining such an application in the near future.

[7] In the circumstances we have decided to adjourn this application pending the making and determination of an application for industry wide award coverage of rescue helicopter aircrew. The matter can be relisted at the request of either party to the current award in the light of subsequent developments.

VICE PRESIDENT

Appearances:

Ms J. Tran with Mr M. Nguyen, for the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union.

Hearing details:

2014.

Melbourne.

22 July.

Printed by authority of the Commonwealth Government Printer

<Price code A, AP815272 PR553636 >