Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch. 6, Item 4 - Application to make a modern award to replace an enterprise instrument.

Community and Public Sector Union

Application for a modern enterprise award to replace the Australian Bureau of Statistics (Interviewers) Award 2000 - 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 an application under item 4 of Schedule 6 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Transitional Act) for the Fair Work Commission (Commission) to make a modern enterprise award to replace the Australian Bureau of Statistics (Interviewers) Award 2000 (Current Enterprise Award).

[2] The application was made by the Community and Public Sector Union (CPSU) and heard by us on 9 June 2016.

[3] The application was supported by the Australian Bureau of Statistics (ABS).

[4] At the hearing of this matter:

• Mr P McNulty a solicitor with Ashurst appeared on behalf of ABS with permission pursuant to s.596(2)(a) of the Fair Work Act 2009;
• MS J Jex and Ms L Fardell appeared for the ABS; and
• Mr L Benfell appeared for the CPSU.

[5] At the conclusion of the hearing we announced our decision to make the Australian Bureau of Statistics (Interviewers) Enterprise Award 2016 (Proposed Award) which had been agreed between the parties. Subject to the finalisation of its terms in conference with Commissioner Johns.

[6] These are the reasons for our decision.

[7] On 28 April 2016 the parties filed the following material in support of the application:

a) a joint outline of submissions (Exhibit A);

b) the witness statement of Linda Fardell, Human Resources Program Manager at the ABS and attachments (Exhibit B);

c) a draft Order; and

d) a draft of the Proposed Award.

The approach

[8] 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.

[9] On 24 June 2016 the parties jointly filed a further amended version of the Proposed Award incorporating amendments proposed during the hearing, namely the inclusion of the revised model terms for the cashing out of annual leave.

The legislative requirements

[10] 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:

(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.

[11] 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:

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.

[12] 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:

“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.”

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

11 Enterprise instrument modernisation process is not intended to result in reduction in take-home pay

(1) The enterprise instrument modernisation process is not intended to result in a reduction in the take-home pay of employees.

(2) An employee’s take-home pay is the pay an employee actually receives:

(a) including wages and incentive-based payments, and additional amounts such as allowances and overtime; but

(b) disregarding the effect of any deductions that are made as permitted by section 324 of the FW Act.

Note: Deductions permitted by section 324 of the FW Act may (for example) include deductions under salary sacrificing arrangements.

(3) An employee suffers a modernisation-related reduction in take-home pay if, and only if:

(a) a modern enterprise award made in the enterprise instrument modernisation process starts to apply to the employee when the award comes into operation; and

(b) the employee is employed in the same position as (or a position that is comparable to) the position he or she was employed in immediately before the modern enterprise award came into operation; and

(c) the amount of the employee’s take-home pay for working particular hours or for a particular quantity of work after the modern enterprise award comes into operation is less than what would have been the employee’s take-home pay for those hours or that quantity of work immediately before the award came into operation; and

(d) that reduction in the employee’s take-home pay is attributable to the enterprise instrument modernisation process.

[14] 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

[15] 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)

[16] The parties provided a history of the current Enterprise Award. That history can be summarised as follows:

(a) The Current Enterprise Award is an enterprise instrument which covers ABS Interviewers, who are engaged pursuant to s. 16(2) of the Australian Bureau of Statistics Act 1975 (ABS Act);

(b) The ABS employs approximately 420 ABS Interviewers, who undertake household interviews across Australia;

(c) The terms and conditions of ABS Interviewers have historically been determined separately from the rest of the Australian workforce and from other employees in the ABS who are employed pursuant to the Public Service Act 1999, first in determinations, (subject to Public Service Board approval) and later in awards that were specific to the ABS Interviewers;

(d) The ABS has never relied upon instruments of general application to set the minimum safety net of terms and conditions of ABS Interviewers, and no instrument of general application has ever been applicable or relevant to ABS Interviewers;

(e) In November 1993, the ABS Interviewers (Interim) Award 1993 (1993 Interim Award) was made by the Commission. The 1993 Interim Award formalised the employment arrangements in existence for ABS Interviewers pursuant to determinations made under the ABS Act;

(f) The Commission found that it was not appropriate for ABS Interviewers to be covered by the Market Research Award 1990, or any other Australian Public Service or Commonwealth Government Award. Further, the Commission accepted that the rates for ABS Interviewers should not be taken from any particular pay point within the Australian Public Service, but should be fixed having regard to those rates;

(g) In March 1995, the Commission made a further decision which renamed the 1993 Interim Award the Australian Bureau of Statistics (Interviewers) Award 1993 (1993 ABS Award) and set the appropriate wage rates under that award. The Commission also confirmed that the rates for ABS Interviewers should not be taken from any particular pay point within the Australian Public Service, but should be fixed having regard to those rates. The rates ordered by the Commission took into account the skills and responsibility needed, and the conditions under which the work that ABS Interviewers undertook was performed;

(h) The Current Enterprise Award was made during the award simplification process. The Current Enterprise Award contains very similar terms to the 1993 ABS Award.

[17] It can be seen from this brief overview that the current Enterprise Award has had a long and distinct history. This factor weighed 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).

[18] 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 Enterprise Award.

[19] The parties further submitted that, at present, there is no industry-based modern award that covers ABS Interviewers in the Commonwealth public sector, as an industry, and that there is no modern award, other than the Miscellaneous Award 2010 [MA000104] (the Miscellaneous Award), that would cover the ABS Interviewers, but for the current Enterprise Award.

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

“We agree with those who have suggested that the coverage of the award is very narrow and likely to be limited in time where emerging industries are concerned or where the expansion of coverage of a modern award is involved. Accordingly we do not think the award should contain a comprehensive safety net designed for any particular occupation or industry. Rather it should contain basic conditions only, leaving room for the application of an appropriate safety net in another modern award in due course.”

[21] 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. These circumstances were a factor 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)

[22] The parties submitted that the content of any modern industry or occupation based award would not reflect the terms and conditions currently operating with regards to ABS Interviewers.

[23] Further, the parties submitted that the reasoning of the Full Bench in the APS Award modernisation decision can be applied in the case of ABS Interviewers, which recognised that it was ([2015] FWCFB 616 at paragraph 19):

“…apparent from the history of the awards which have been present in the APS that the content of various industry specific modern awards do not reflect the needs, terms and conditions in the APS. This is a factor in favour of making a modern enterprise award.”

[24] It was apparent from the history of the industrial arrangements which have applied to ABS Interviewers that the content of the various industry specific modern awards do not reflect their needs and terms and conditions of employment. This factor 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)

[25] The parties submitted that, while the Commission in Coleambally Irrigation Co-operative Limited v AWU and ors [2014] FWCFC 2170 found that it was not provided with sufficient information to assess the extent to which the terms and conditions in the industry were reflected in the enterprise instrument, it directed attention to the other enterprise awards applying to those organisations operating in the industry and the large number of enterprise agreements which appeared to cover activities in the relevant industry.

[26] Further the parties submitted that the terms and conditions that currently apply to ABS Interviewers covered by the current Enterprise Award are reflected in the Australian Bureau of Statistics Interviewers Enterprise Agreement 2011-2014 (ABS Enterprise Agreement).

[27] These factors 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)

[28] The parties submitted that there are enterprise specific terms and conditions that apply to ABS Interviewers, which reflect the provisions in the Current Enterprise Award, these include:

• the basis of engagement (being ongoing, non-ongoing and causal), with casual employment the standard form of employment for ABS Interviewers, reflecting the historical arrangements in regards to their work and the nature of the work and varied workloads;

• grades of assignment rather than classification levels;

• assignment-based pay rates;

• an ability for ABS Interviewers to determine their hours of work (subject to interviews needing to be conducted at certain times);

• a list of the types of work that make up ordinary hours;

• payment based on assessed time (the amount of time that the ABS assesses that an assignment should take, based on the time taken to complete components of the work during previous surveys, pilot tests and dress rehearsals);

• minimum payments; and

• the ability for ABS Interviewers to absent themselves from the panel (outside of the leave types recognised by the Fair Work Act).

[29] Ms Fardell gave evidence about the specific terms and conditions of employment. In summary the evidence as to the effect that:

• The terms and conditions for ABS employees were historically determined by the Australian Statistician, subject to the approval by the Public Service Board.

• Interviewers represent a distinct operational or organisational unit within the ABS. Other employees employed in the ABS are engaged pursuant to the Public Service Act 1999 and are covered by the Australian Public Service Enterprise Award 2015.

• ABS Interviewers have never been covered by instruments of general application. The current Enterprise Award above provides terms and conditions that are unique to ABS Interviewers and which reflects the work undertaken by those interviewers. For example, Interviewers do not have a classification level. Rather, they are paid based on the grade of assignment being undertaken.

• ABS Interviewers are currently covered by the ABS Enterprise Agreement.

[30] 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).

[31] The parties jointly submitted that:

• All ABS Interviewers are covered by the ABS Enterprise Agreement that applies to the interviewer's employment in the ABS. The direct impact of the Proposed Award on a majority of ABS Interviewers will be relevant to the operation of the Better Off Overall Test.

• If a modern ABS Interviewers award were not made and the current Enterprise Award were terminated, the better off overall test would be assessed against the Miscellaneous Award, which does not contain enterprise-specific terms and conditions that reflect the particular circumstances of employment as an ABS Interviewer. The Miscellaneous Award contains basic terms and conditions, and would not provide a fair or relevant minimum safety net for the purpose of the BOOT.

• If a modern ABS Interviewer award were made, enterprise agreements would be assessed against an enterprise-specific award containing terms and conditions specific to ABS Interviewers. A modern ABS Interviewers award would provide a fair and relevant minimum safety net for the purpose of the Commission's assessment of whether an applicable enterprise agreement passes the BOOT.

• The making of a modern enterprise award in the form of the draft modern ABS Interviewers award would not adversely impact the viability or competitiveness of the ABS.

[32] It was submitted by the parties that, if the modern enterprise award were made, the BOOT test would be assessed against a single enterprise specific award containing relevant terms and conditions of employment. There is considerable force to this argument and it is a factor in favour of making a modern enterprise award.

[33] 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)

[34] All parties to the current Enterprise Award supported the making of this modern enterprise award. No person opposed the award. While consent is not decisive of the matter, it is a factor in favour of making a modern enterprise award.

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

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

Should a modern enterprise award be made?

[36] The ABS is a unique organisation. There is no convenient alternative award that can be said to better satisfy the modern awards objective than a modernised Australian Bureau of Statistics (Interviewers) Award 2000.

[37] The history of the award discloses a rationale for its existence which remains current today. The terms of the Current Enterprise Awards contains enterprise specific terms. While some of these can and should be contained in enterprise agreements, the fact remains that the award was developed for this enterprise, and once consolidated and modernised, remains 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 the ABS.

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

[39] Consequently, we made the Award in the terms agreed between the parties.

VICE PRESIDENT

Appearances:

P McNulty, Ashurst for the Australian Bureau of Statistics

J Jex and L Fardell from the Australian Bureau of Statistics

L Benfell for the Community and Public Sector Union.

Hearing details:

2016.

Sydney, Canberra

June 9.

 1   [2015] FWCFB 616.

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