[2016] FWCFB 3838
FAIR WORK COMMISSION

REASONS FOR DECISION


Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Item 4 Sch. 6—Modern enterprise award

Commissioner for Public Employment
(EM2013/61)

COMMUNITY AND PUBLIC SECTOR UNION (NORTHERN TERRITORY PUBLIC SECTOR) AWARD 2002 AND OTHERS

Commonwealth employment

VICE PRESIDENT CATANZARITI
DEPUTY PRESIDENT KOVACIC
COMMISSIONER JOHNS

SYDNEY, 19 AUGUST 2016

Application for a modern enterprise award to replace several enterprise instruments - whether modern enterprise award should be made - modern enterprise award should be made in the circumstances - order to be settled by member of Full Bench.

Introduction

[1] This decision relates to applications made under item 4 of Schedule 6 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Transitional Act) for the Fair Work Commission to make a modern enterprise award to replace the following awards (Current Awards):

[2] The application was made by the Northern Territory’s Commissioner for Public Employment.

[3] On 26 May 2016 the parties jointly filed the following material in support of the application:

[4] The application was supported by the following unions:

[5] At the hearing of this matter on 9 June 2016 the following appearances were recorded;

[6] At the conclusion of the hearing we announced our decision to make the Northern Territory Public Sector Enterprise Award 2016 (Proposed Award) which had been agreed between the parties subject to its terms being finalised in conference with Commissioner Johns.

[7] On 15 June 2016 the parties jointly filed a further amended version of the Proposed Award incorporated amendments proposed during the Hearing.

[8] On 15 July 2016, the Commission’s Awards Modernisation Team suggested further amendments to the Proposed Award because of the decision in the Annual Wage Review 2015–16 on 31 May 2016 [[2016] FWCFB 3500]. It was proposed to adjust the wages and allowances, along with other minor changes.

[9] The Commission provided the parties with:

[10] The parties were directed to consider the changes proposed, and provide comments and/or objections to the amended version of the Proposed Award, by 22 July 2016.

[11] On 22 July 2016, the Northern Territory’s Commissioner for Public Employment raised a number of objections to the Commission’s calculations and submitted:

[12] On 28 July 2016, the Commission provided the parties with a final version of the Proposed Award, incorporating all the changes proposed by the Northern Territory’s Commissioner for Public Employment; however the Commission noted that figures relating to expense-related allowances and motor vehicle allowances, will remain as per the Commission’s calculations. A brief explanation was provided on how these figures were calculated.

[13] On 29 July 2016, the Northern Territory’s Commissioner for Public Employment wrote to the Commission, confirming it has no objection to the final version of the Proposed Award, and suggested further minor amendments to the Proposed Award.

[14] On 9 August 2016, Commissioner Johns advised the parties that all outstanding issues had been resolved, and subject to final inspection by the Awards Modernisation Team, the Proposed Award would be finalised and the Reasons for Decision and Order would be issued.

[15] These are the reasons for our decision.

The approach

[16] The approach to be taken to the making of an enterprise modern award was established by a Full Bench in Commonwealth of Australia acting through the Minister Assisting the Prime Minister for the Public Service v the Community and Public Sector Union and Others. 1 We adopt that approach in this matter.

The legislative requirements

[17] 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 (Transitional Act) which provides:

[18] Item 6 links the modern enterprise award objective to the modern award objective and the minimum wages objective found at ss.134 and 284 of the Act. It provides:

[19] This is a legislative requirement for the Commission to recognise, in the context of the modern awards objective and the minimum wage 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. The modern awards objective, set out in s.134 of the Fair Work Act 2009 (the Act), is as follows:

[20] It is also relevant to draw attention to item 11 of Division 3 which provides:

[21] Item 11 highlights the injunction contained in the original request provided by the then Minister which related to disadvantage to employees.

The application of the legislative task

[22] We now turn to each of the matters that we took into account.

The circumstances that led to the making of the enterprise instrument rather than an instrument of more general application: Item 4(5)(a)

[23] The parties provided a history of the Current Awards. That history can be summarised as follows:

[24] It can be seen from this brief review that the Current Awards have had a long and distinct history. This was a factor in favour of making a modern enterprise award.

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: Item 4(5)(b).

[25] It was submitted that there is no single award that would, but for the Proposed Award, cover all employees who are covered by the Current Awards.

[26] It was submitted by the applicant that if the Proposed Award were not modernised then it is likely that at a number of different modern industry and occupational awards would cover its employees. They include:

[27] The parties agree that coverage by a large number of modern awards may lead to difficulties in enterprise bargaining. It was submitted that it would lead to an unnecessary fragmentation of the award safety net and would fail to achieve the modern awards objective.

[28] The parties jointly submitted that, while it would be possible for many NTPS employees to be covered by the Miscellaneous Award 2010, the Commission should adopt the same reasoning it applied in Commonwealth v CPSU ([2015] FWCFB 616).

[29] As was made clear in the award modernisation Full Bench decision dated 4 December 2009 ([2009] AIRCFB 945 at paragraph 153):

[30] The Miscellaneous Award was not created or designed to be a universal safety net but to be a transition point to another modern award whose coverage may require review.

[31] These circumstances weighed in favour of creating a modern enterprise award.

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): Item 4(5)(c)

[32] The parties submitted that the modern awards listed above contain a common range of conditions and a range of allowances payable to employees, but that the allowances payable differ as between awards.

[33] Furthermore, it was submitted that each of these modern awards has classification structures and minimum rates of pay that differ from the classifications and rates of pay set out in the Proposed Award. The parties submitted that the classifications and rates of pay set out in the Proposed Award are better suited to the requirements of the NTPS than those appearing in the applicable modern awards.

[34] It is apparent from the history of the industrial arrangements which have applied to the applicant that the content of the various industry specific modern awards do not reflect the needs, terms and conditions of its employees. These factors weighed in favour of making a modern enterprise award.

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)

[35] The parties submitted that a number of terms and conditions of employment applying to the NTPS through various enterprise agreements are reflected in the Current Awards. These include:

[36] These circumstances weighed in favour of making a modern enterprise award.

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

[37] The parties submitted that the Proposed Award contains enterprise specific terms and conditions of employment. A few are worthy of mention:

[38] The parties also submitted that, while some similarities with the Australian Public Service Award exist at the lower levels, the classifications and pay relativities in the Existing Awards are enterprise specific. The Proposed Award maintains these classifications and relativities.

[39] It was submitted that if the Proposed Award were not made then the classifications and relativities would be lost and the relativities set by instruments of more general application. The parties submitted that this would be contrary to the principle of equal remuneration.

[40] These factors weighed in favour of making a modern enterprise award.

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).

[41] The parties jointly submitted that:

[42] These factors weighed in favour of making a modern enterprise award.

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

[43] While the views of every employee of the NTPS had not been canvassed, the parties submitted that support for the Proposed Award had been given by the following employee associations:

[44] Whilst consent is not decisive of the matter, it was a factor in favour of making a modern enterprise award.

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

[45] There were no regulations relevant to this criterion.

Should a modern enterprise award be made?

[46] The NTPS is a unique organisation. Its core business and related activities have evolved over many years to reflect changes in its role and the functions it performs. There is no convenient alternative award that can be said to better satisfy the modern awards objective than a modernising of the Current Awards.

[47] The history of the awards discloses a rationale for their existence which remains current today. The Current Awards contain enterprise specific terms. While some of these can and should be contained in enterprise agreements, the fact remains that the awards were developed for the NTPS, and once consolidated and modernised, remain the most suitable vehicle for a fair and relevant minimum safety net into the future. In our view there was a compelling case for the making of a modern enterprise award for Proposed Award.

[48] The above factors clearly made the case for such an outcome. We considered that the Proposed Award should be made.

[49] Consequently, we made the Award in the terms agreed between the parties and filed in the Commission on 29 July 2016.

VICE PRESIDENT

Appearances:

A. Ambihaipahar appeared for the CEPU

S. Gheller appeared for the APESMA

A. McCarthy appeared for the ANMF

B. Devlin appeared for the AMWU

E. Early appeared for UV

M. Hathaway & M. McAuliffe appeared for the Commissioner for Public Employment for the Northern Territory

Hearing details:

2016.

Sydney, Brisbane, Melbourne, Darwin.

June 9.

 1   [2015] FWCFB 616.

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