[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.
SENIOR DEPUTY PRESIDENT ACTON |
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:
“4 The enterprise instrument modernisation process
(1) The enterprise instrument modernisation process is the process of making modern awards under this Division to replace enterprise instruments.
(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.
(4) A modern enterprise award must be made by a Full Bench.
(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.
Note: A variation referred to in paragraph (c) may, for example, be a variation to reflect the outcome of the AFPC’s final wage review under the WR Act, or to include transitional arrangements in the modern award.
(5A) If the FWC makes a modern enterprise award before the FW (safety net provisions) commencement day, the modern enterprise award must not be expressed to commence on a day earlier than the FW (safety net provisions) commencement day.
Note: For when a modern enterprise award is in operation, see item 17.
(6) The regulations may deal with other matters relating to the enterprise instrument modernisation process.”
[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:
“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.”
[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:
“6 The modern enterprise awards objective
(1) The modern awards objective and the minimum wages objective apply to the FWC making a modern enterprise award under this Division.
(2) However, in applying the modern awards objective and the minimum wages objective, the FWC must recognise that modern enterprise awards may provide terms and conditions tailored to reflect employment arrangements that have been developed in relation to the relevant enterprises. This is the modern enterprise awards objective.
Note 1: See also item 11 (enterprise instrument modernisation process is not intended to result in reduction in take-home pay).
Note 2: See also item 16A (how the FW Act applies to the enterprise instrument modernisation process before the FW (safety net provisions) commencement day).”
[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:
“10 Notification of the cut-off for the enterprise instrument modernisation process
(1) The FWC must, at least 6 months before the end of the period specified in paragraph 4(3)(b), advise any persons still covered by an enterprise instrument:
(a) that the period for making applications under items 4 and 5 ends on 31 December 2013; and
(b) of the consequences for the enterprise instrument if an application in relation to the instrument is not made.
(2) The FWC may give that advice by any means it considers appropriate.
(3) Section 625 of the FW Act (which deals with delegation by the President of functions and powers of the FWC) has effect as if subsection (2) of that section included a reference to the FWC’s functions and powers under this item.”
[11] Relevantly, item 9(4) of schedule 6 of the TPCA Act concerns the termination of an enterprise instrument providing that:
“(4) If, by the end of the period specified in paragraph 4(3)(b), no application under item 4 or 5 has been made in relation to an enterprise instrument, the instrument terminates at the end of that period.”
[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:
“4. INCIDENCE
This award shall be binding upon:
4.1 The Australian Municipal and Administrative, Clerical and Services Union; and
4.2 All employees working in an off-course Tabcorp Agency in Victoria who are engaged by any Agent as defined in clause 6.1 of the Award.
4.3 Any person who is or becomes an Agent as defined in clause 6.1 of the Award.”
[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:
“24. GRIEVANCE AND DISPUTE SETTLEMENT PROCEDURE
24.1 The following procedures are designed to assist in the resolution of grievances and disputes on any employment matter by local consultation without confrontation or interruption of work:
24.1.1 The matter in the first instance shall be raised between individual employees and their agent. The earliest possible advice shall be given on any issue or problem that may give rise to a grievance or dispute.
24.1.2 If local discussions are unsuccessful, discussions may be held between the employees, an employee representative and the agent, with assistance if desired from the Association.
24.1.3 Failing satisfaction, the matter can be referred to the Commission for determination.” [Underlining added]
[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:
(a) the application was made in a timely way and was a substantial application in the sense that a considerable amount of work has been done to formulate a draft modern enterprise award;
(b) once the application was filed, it has been the subject of a number of mentions before the Fair Work Commission (FWC), during which time no issue was taken with the standing of VOCAA to bring the application;
(c) in the course of making appearances before the FWC, VOCAA, on behalf of its members, has then embarked in extensive negotiations with the ASU in order to formulate a consent position in relation to the application;
(d) real prejudice will be suffered in circumstances where:
(i) an application has been made within time,
(ii) the application has been accepted by the FWC,
(iii) the application was made in good faith by a person who has been closely involved in the making of the 2001 Award and solely representing the employers of employees covered by the 2001 Award,
(iv) the matter has proceeded through the FWC without any issue being raised as to jurisdiction,
(v) a full hearing has been conducted without reference being made to jurisdiction,
(vi) the members will have lost the ability to bring fresh proceedings, and
(vii) the amendment does not affect the evidence or introduce a new cause of action or basis for the application;
(e) that a limitation period has expired does not mean that an application issued within time cannot be amended;
(f) no party is being deprived of a limitation defence or the right to make a submission that the limitation period has expired as there is no party opposing the application; and
(g) no party will suffer prejudice as a result of the grant of the amendment. 5
[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.
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>