Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch. 6A, Item 5 - Application to terminate a State reference public sector transitional award Sch. 6A, Item 4 - Application to make a State reference public sector modern award

NURSES (VICTORIAN HEALTH SERVICES) AWARD 2000

State reference public sector transitional award modernisation - Nurses (Victorian Health Services) Award 2000 - Application to terminate a State reference public sector transitional award - State reference public sector modern award to replace predecessor award - Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 - Sch. 6A Items 4, 5, 6, 7, 8 and 9 - Fair Work Act 2009 - ss. 134 and 284.

Introduction

[1] These matters arise from the operation of Schedule 6A to the Fair Work (Transitional Provisions and Consequential Provisions) Act 2009 (the Transitional Act) in relation to an award that falls within the definition of ‘State reference public sector transitional awards’ under the Transitional Act. That award is the Nurses (Victorian Health Services) Award 2000 (the Award).

[2] The Victorian Hospitals’ Industrial Association has made an application to terminate the Award under Schedule 6A, Item 5 of the Transitional Act. The Australian Nursing and Midwifery Federation and the Health Services Union have both made applications to make a new award to replace the predecessor award under Schedule 6A, Item 4.

[3] The application to terminate this State reference public sector award is governed by Item 5 of Schedule 6A to the Transitional Act which provides as follows:

“5  Terminating State reference public sector transitional awards on application

(1) An employer or organisation that is covered by a State reference public sector transitional award (the current award) may apply to the FWC or the Commission to terminate the current award.

Note: The Commission ceased to exist on 31 December 2009: see item 7 of Schedule 18.

(2) The application may be made only during the period starting on the WR Act repeal day and ending at the end of 31 December 2013.

(3) The FWC or the Commission must not terminate the current award unless the FWC or the Commission is satisfied that the employees who are covered by the current award will, if the current award is terminated, be covered by a modern award (other than the miscellaneous modern award) that, at the time of the termination, is or is likely to be in operation and that is appropriate for them.

(4) In deciding whether to terminate the current award, the FWC or the Commission must take into account the following:

(a) the circumstances that led to the making of the current award;

(b) the terms and conditions of employment applying in the industry or occupation in which the persons covered by the current award operate, and the extent to which those terms and conditions are reflected in the current award;

(c) the extent to which the current award facilitates arrangements, and provides terms and conditions of employment, referred to in paragraphs 7(2)(a) and (b);

(d)  the likely impact on the persons covered by the current award of a decision to terminate, or not to terminate, the current award;

(e)  the views of the persons covered by the current award;

(f)  any other matter prescribed by the regulations.

(5) If the FWC or the Commission terminates the current award, the termination operates from the day specified in the decision to terminate the current award, being a day that is not earlier than the FW (safety net provisions) commencement day.

(6) If the Commission terminates the current award, the termination is taken, after the Commission has ceased to exist, to have been made by the FWC.”

[4] Item 6 of Schedule 6A requires the Commission to make or vary a State reference public sector modern award so that employees covered by State reference public sector transitional awards are covered by a State reference public sector modern award. Item 6 states in full:

“6  Further obligation of the FWC to make or vary State reference public sector modern awards at end of application period

If, at the end of the period referred to in subitem 4(2), there are one or more State reference public sector transitional awards that still cover some employers and employees, the FWC must make, or (in accordance with section 168L of the FW Act) vary the coverage of, one or more State reference public sector modern awards so that all those employers and employees are covered by State reference public sector modern awards.

Note: The employers and employees will cease to be covered by the State reference public sector transitional awards when they start to be covered by a State reference public sector modern award that is in operation: see item 29 of Schedule 3.”

[5] Items 7 to 9 of Schedule 6A concern the approach to formulating the terms of a State reference public sector modern award. These provisions state:

“7  The State reference public sector modern awards objective

(1) If the FWC is required by item 4 or 6 to make a State reference public sector modern award, the modern awards objective and the minimum wages objective apply to the making of the modern award.

(2) However, in applying the modern awards objective and the minimum wages objective, the FWC must recognise:

(a)  the need to facilitate arrangements for State reference public sector employers and State reference public sector employees that are appropriately adapted to the effective administration of a State; and

(b)  that State reference public sector modern awards may provide terms and conditions tailored to reflect employment arrangements that have been developed in relation to State reference public sector employers and State reference public sector employees.

This is the State reference public sector modern awards objective.

Note 1:    See also item 13 (State reference public sector transitional award modernisation process is not intended to result in reduction in take-home pay).

Note 2:    See also item 19 (how the FW Act applies in relation to the State reference public sector transitional award modernisation process before the FW (safety net provisions) commencement day).

8  Terms of State reference public sector modern awards

(1) Division 3 (other than sections 143 and 154) of Part 2-3 of the FW Act (which deals with terms of modern awards) applies in relation to a State reference public sector modern award made under this Division.

Note: See also item 19 (how the FW Act applies in relation to the State reference public sector transitional award modernisation process before the FW (safety net provisions) commencement day).

(2)  If FWA makes a State reference public sector modern award before the FW (safety net provisions) commencement day, the State reference public sector modern award must not be expressed to commence on a day earlier than the FW (safety net provisions) commencement day.

9  Coverage terms

Coverage terms must be included

(1) A State reference public sector modern award must include terms (coverage terms) setting out, in accordance with this item, the employers, employees and organisations that are covered by the State reference public sector modern award.

Employers and employees

(2) The coverage terms must be such that:

(a)  the only employers that are expressed to be covered by the modern award are one or more specified State reference public sector employers; and

(b)  the only employees who are expressed to be covered by the modern award are specified State reference public sector employees of those employers.

Organisations

(3) A State reference public sector modern award may be expressed to cover one or more specified organisations, in relation to:

(a)  all or specified employees covered by the modern award; or

(b)  the employer, or all or specified employers, covered by the modern award.

Outworker entities

(4) A State reference public sector modern award must not be expressed to cover outworker entities.

How coverage etc. is expressed

(5) For the purposes of this item:

(a)  an employer or employers may be specified by name or by inclusion in a specified class or specified classes; and

(b)  employees must be specified by inclusion in a specified class or specified classes; and

(c)  organisations must be specified by name.”

[6] The references to the modern awards objective and the minimum wage objective in Item 7 refer to the objectives in ss. 134 and 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.”

[7] 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.”

Applications to make State reference public sector modern award to replace predecessor award

[8] The Australian Nursing and Midwifery Federation and the Health Services Union have been meeting with the Victorian Hospitals’ Industrial Association and have reached agreement that a modern award should be made to replace the predecessor transitional award. The parties have prepared a draft award with the assistance of Deputy President Smith. The Victorian Hospitals’ Industrial Association withdraws its application to terminate the previous instrument. We approve the making of the award. The award is made in conjunction with the issuing of this decision.

VICE PRESIDENT

Appearances:

M. Salmon for the VHIA.

A. Duffy, of counsel, with L. Hubbard, for the ANMF.

L. Svendsen for the HSU.

Hearing details:

2015.

Melbourne.

27 March.

Printed by authority of the Commonwealth Government Printer

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