[2014] FWCFB 7779

The attached document replaces the document previously issued with the above code on 10 November 2014.

The document has been edited to correct typographical error in the title of the award by replacing the word “METROPLOLITAN” with the word “METROPOLITAN”

Paola Crofts

Associate to Vice President Watson

Dated 12 November 2014.

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, COMMANDERS INTERIM AWARD 2002

Application by United Firefighters' Union of Australia for a modern enterprise award for Metropolitan Fire and Emergency Services Board, Commanders Interim Award 2002 - Modern awards objective - Modern Award not made - Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 Schedule 6 sub item 4(5) - Fair Work Act 2009 ss.134,284.

Introduction

[1] On 30 December 2013 the United Firefighters’ Union of Australia (UFU) made an application to modernise the Metropolitan Fire and Emergency Services Board, Commanders Interim Award 2002 (Commanders Award), under item 4 of Schedule 6 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Transitional Act). It sought the Fair Work Commission to make a modern enterprise award to replace the Commanders Award. The Metropolitan Fire and Emergency Services Board (MFB) opposes the application. A decision in relation to a preliminary argument raised by the MFB was issued on 20 June 2014.

[2] The parties agreed to the matter being determined on the papers.

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 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 addition to the modern awards objective and the minimum wage objective generally, that modern enterprise awards may provide terms and conditions tailored to reflect employment arrangements that have been developed in relation to the relevant enterprises. The modern awards objective and the minimum wage objective referred to in item 6 are references to those objectives in s.134 and s.284 of the Fair Work Act 2009 (the Act). Section 134 relevantly states:

“134 The modern awards objective

What is the modern awards objective?

(1) The FWC 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

(da) the need to provide additional remuneration for:

(i) employees working overtime; or

(ii) employees working unsocial, irregular or unpredictable hours; or

(iii) employees working on weekends or public holidays; or

(iv) employees working shifts; 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.”

[5] Section 284 relevantly states:

“284 The minimum wages objective

What is the minimum wages objective?

(1) The FWC must establish and maintain a safety net of fair minimum wages, taking into account:

(a) the performance and competitiveness of the national economy, including productivity, business competitiveness and viability, inflation and employment growth; and

(b) promoting social inclusion through increased workforce participation; and

(c) relative living standards and the needs of the low paid; and

(d) the principle of equal remuneration for work of equal or comparable value; and

(e) providing a comprehensive range of fair minimum wages to junior employees, employees to whom training arrangements apply and employees with a disability.

This is the minimum wages objective.”

[6] We turn to consider these various 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)

[7] In 2010 a Full Bench considered the background to the making of the Commanders Award. It said:

“We shall deal briefly with the history of industrial regulation of the higher ranks within the MFESB. The Fire Brigades Operational Staff Award 1988, an award of the Industrial Relations Commission of Victoria, applied to the MFESB and covered the ranks from Firefighter to Chief Fire Officer. In 1994 the first federal award was made. That award applied up to the classification level of Senior Station Officer. Ranks above that level were covered by contractual arrangements. The rank immediately above Senior Station Officer was at that time Inspector. There was a significant amount of disharmony concerning the industrial coverage of Inspectors between 1993 and 2002 and the UFUA discouraged its members from applying for positions at that level. In 2002 an award was made to cover Inspectors only. Shortly thereafter, an agreement was certified between the MFESB and the UFUA covering Inspectors only. At about the same time, the new rank of Commander - Operations was created in the Metropolitan Fire and Emergency Services Board, United Firefighters’ Union of Australia, Operations Staff Agreement 2002. In heads of agreement reached between the UFUA and the MFESB in 2005 there was agreement in principle that all ranks up to and including Commander be covered by the one enterprise agreement. A clause in the heads of agreement provided for conditions for Commanders to be included in an

appendix to the enterprise agreement. When the current agreement was made in April 2006, the ranks of Inspector and Commander were combined into one rank, known as Commander.” 1

[8] The MFB submits that the background establishes that even when the award was made in 2002 it was not intended to have continuing operation. It only applies to persons currently employed as Commanders who were previously employed as Inspectors. There were 42 persons in this capacity in 2002. The number has now decreased to 17, of a total of 70 Commanders employed by the MFB. This number will continue to diminish as former inspectors who were appointed Commander either leave the employ of the MFB or are promoted to a higher rank.

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)

[9] The Fire Fighting Industry Award 2010 covers ranks up to the level of Fire Services Communications Controller. It does not cover the higher ranks of Commander, Assistant Chief Fire Officer, Deputy Chief Fire Officer or Chief Fire Officer. There is therefore no modern award that would cover Commanders if a modern award is not made.

The content, or likely content, of the modern award referred to in paragraph (b): Item 4 (5) (c)

[10] This factor is not applicable.

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: Item 4 (5) (d)

[11] Commanders employed by the MFB are covered by the current Operational Staff Enterprise Agreement 2010. Commanders at interstate fire authorities are generally also covered by the enterprise agreement applicable to fire operational staff in their enterprise.

The extent to which the enterprise instrument provides enterprise-specific terms and conditions of employment: Item 4 (5) (e)

[12] The Commanders Award contains enterprise specific terms but they do not reflect the current terms and conditions of employment of the Commanders. Nor do those minimum terms apply to the majority of Commanders. The minimum award wage of approximately $800 per week is far below the average weekly wage for all Commanders of approximately $2300 per week.

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: Item 4 (5) (f)

[13] As the 17 commanders covered by the Commanders Award are covered by an enterprise Agreement there will be no immediate impact from the termination of the Commanders Award. Their position at the time of making a new agreement will be the same as the other Commanders not covered by the Commanders Award.

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

[14] The UFU, as the applicant, supports the making of a modern award and contends that its members contacted support the retention of a strong safety net. The MFB is opposed to it. There is no direct evidence of the views of the 17 Commanders.

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

[15] No matters are prescribed.

The Modern Enterprise Awards Objective

[16] The retention of a modern award could be said to be consistent with the modern awards objective. However the absence of any demonstrable disadvantage to Commanders from not having existing award coverage diminishes the significance of this factor.

Should a modern enterprise award be made?

[17] We are not satisfied that a case has been made out for the making of a modern enterprise award to replace the Commanders Award. The limited scope of the Commanders Award and the absence of any demonstrable disadvantage to the Commanders lead us to the conclusion that a modern enterprise award would serve no useful purpose. If in the future there is considered to be a case for award coverage for Commanders an application could be made to extend the scope of the Fire Fighting Industry Award 2010.

Conclusions

[18] For the above reasons the application is dismissed.

VICE PRESIDENT

Final written submissions:

Metropolitan Fire and Emergency Services Board on 2 October 2014.

 1   UFU v the MFB and others [2010] FWAFB 3009 at 26.

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