[2014] FWCFB 8100
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.

Victorian Off-Course Agents Association Inc.
(EM2013/30)

SENIOR DEPUTY PRESIDENT ACTON
COMMISSIONER SPENCER
COMMISSIONER LEE

MELBOURNE, 15 DECEMBER 2014

Application to make a modern enterprise award to replace the Off-Course Agency Employees Award 2001 - no standing - application invalid.

Introduction

[1] This decision deals with an application made by the Victorian Off-Course Agents Association Inc. (VOCAA) on 13 September 2013 to make a modern enterprise award to replace an enterprise instrument, being the Off-Course Agency Employees Award 2001 1 (2001 Award). The VOCAA is an incorporated association.

[2] The 2001 Award is a Workplace Relations Act 2009 (Cth) instrument (WR Act instrument) 2 that became a transitional instrument on the WR Act repeal day3 and comes within the definition of an enterprise instrument in the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) (TPCA Act).4

[3] This decision determines whether the VOCAA had standing to make the application and, if not, whether we should allow the amendment of the application with respect to its applicant.

[4] Submissions in respect of these issues were made to us by the VOCAA and the Australian Municipal, Administrative, Clerical and Services Union (ASU).

[5] In determining the standing and amendment issues, we set out the relevant statutory provisions and then consider the issues of standing and amendment before concluding.

Statutory provisions

[6] The application was made pursuant to item 4 of schedule 6 of the TPCA Act.

[7] Item 4 of schedule 6 of the TPCA Act concerns the enterprise instrument modernisation process and is as follows:

[8] Item 3 of schedule 3 of the TPCA Act sets out who are covered by a transitional instrument and to whom it applies and relevantly provides as follows:

[9] Item 6 of schedule 6 of the TPCA Act concerns the objectives that apply to the making of a modern enterprise award and is as follows:

[10] Item 10 of schedule 6 of the TPCA Act concerns notification of the cut-off for the enterprise instrument modernisation process and is as follows:

[11] Relevantly, item 9(4) of schedule 6 of the TPCA Act concerns the termination of an enterprise instrument providing that:

[12] Item 5 of schedule 6 of the TPCA Act is not presently relevant.

[13] We turn then to consider the standing of the applicant and potential amendment of the application.

Standing of applicant and amendment of application

[14] There is no dispute and we accept that the application before us was made during the period starting on the WR Act repeal day and ending at the end of 31 December 2013. Pursuant to item 4(3)(a) of schedule 6 of the TPCA Act, the application must have been made by a person covered by the 2001 Award. The application before us was made by VOCAA.

[15] With respect to whom the 2001 Award covers, it states the following:

[16] Clause 6.1 of the 2001 Award defines an “Agent” as meaning “a person, firm or company engaged as an agent by Tabcorp principally for the purpose of conducting wagering facilities upon premises which are owned, leased or sub-leased by Tabcorp; provided that such are neither facilities conducted by Tabcorp in its own right nor are part of a Tabaret as referred to in Division V of the Racing Act 1958 nor are facilities which contain only Handytabs and/or Handytab Cashier Terminals.”

[17] The “Grievance and dispute settlement procedure” in the 2001 Award provides as follows:

[18] The “Association” is defined in clause 6.1.1 of the 2001 Award as meaning the VOCAA.

[19] We are not persuaded that the reference to the Association in clause 24.1.2 in the 2001 Award results in the Association being “a person covered by the enterprise instrument” within the meaning of item 4(3)(a) of schedule 6 of the TPCA Act. That reference to the Association gives it no rights. The right in clause 24.1.2 to have “assistance if desired from the Association” is vested in the “[A]gent”, not the Association.

[20] Further, neither the provisions of item 3 of schedule 3 of the TPCA Act, nor the VOCAA’s role in respect of the making of the 2001 Award and its predecessors, nor the VOCAA’s membership and the representation it provides for them result in the VOCAA being covered by the 2001 Award at the relevant time.

[21] Accordingly, we are not satisfied that at the time the VOCAA made the application before us in respect of the 2001 Award or before 31 December 2013, the VOCAA was covered by the 2001 Award. The application before us, therefore, was not made by a person covered by the 2001 Award.

[22] The VOCAA and the ASU submitted to us that in the event we were not satisfied that at the relevant time the VOCAA was covered by the 2001 Award then we should allow the amendment of the application made pursuant to item 4 of schedule 6 of the TPCA Act so that it is regarded as having been made by Pomarla Pty Ltd being an Agent whose director, Mr John Haberman, is President of the VOCAA or by the ASU.

[23] In support of such an amendment it was submitted by the VOCAA that:

[24] The ASU essentially supported the VOCAA submissions, emphasising that if the application is not amended as sought the relevant employees will lose their opportunity to have a modern enterprise award cover them and the 2001 Award will terminate.

[25] We are not persuaded we should exercise the discretion available to us under s.586 of the FW Act to amend the application before us in respect of the 2001 Award.

[26] Item 4(3) of schedule 6 of the TPCA Act provides a beginning and end period for the making of applications for the making of modern enterprise awards. Pursuant to item 10 of schedule 6 of the TPCA Act, at least six months before that end period the FWC advised persons still covered by an enterprise instrument that the period for making such an application ended on 31 December 2013 and of the consequences for the enterprise instrument if no such application was made.

[27] There was, therefore, ample warning about the importance of making a valid application in accordance with item 4(3) of schedule 6 of the TPCA Act and ample opportunity to do so. There is nothing in the TPCA Act to have prevented an application being made by the VOCAA and an application being made by another person within time.

[28] It is also common ground that those covered by the 2001 Award would be covered by a modern award, other than the miscellaneous modern award, but for the 2001 Award.

[29] In the circumstances, the submissions made in support of us exercising our discretion to amend the application in matter EM2013/30 are not sufficient to persuade us to do so, notwithstanding matters such as the lateness in the proceedings in which the jurisdictional issue has been raised, the views of the VOCAA and the ASU, and the other consequences of not allowing the amendment.

Conclusion

[30] Since the application before us in respect of the 2001 Award was not made by a person covered by that enterprise instrument at the relevant time in accordance with item 4(3) of schedule 6 of the TPCA and we are not prepared to exercise our discretion to amend the application so that it conforms with item 4(3) of schedule 6, the application in matter EM2013/30 is not a valid application and we dismiss it. We order accordingly.

Seal of the Fair Work Commission with member's signature.

SENIOR DEPUTY PRESIDENT

Appearances:

A. McNab, of counsel, with A. O’Brien for the Victorian Off-Course Agents Association Inc.

J. Nucifora for the Australian Municipal, Administrative, Clerical and Services Union.

Hearing details:

2014.

Melbourne:

September 17.

Final written submissions:

Applicant, 24 and 25 September 2014 and 1 and 17 October 2014.

Respondent, 26 September 2014 and 24 October 2014.

 1   AP812511.

 2   Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth), schedule 3, item 2.

 3   Ibid.

 4   Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth), schedule 6, item 2.

 5   Further outline of submissions filed on behalf of the applicant dated 17 October 2014 at paragraphs 15-18.

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<Price code C  AP812511  PR557758>