[2016] FWCFB 5429
FAIR WORK COMMISSION

REASONS FOR DECISION


Fair Work (Transitional Provisions and Consequential Amendments) Act 2009

Item 4 Sch. 6—Modern enterprise award

The Community and Public Sector Union and the Association of Professional Engineers, Scientists & Managers Australia (APESMA)
Australian Nuclear Science and Technology Organisation (General) Award 2000
(EM2013/54)

Commonwealth employment

VICE PRESIDENT CATANZARITI
DEPUTY PRESIDENT KOVACIC
COMMISSIONER JOHNS

SYDNEY, 19 AUGUST 2016

Application for a modern enterprise award to replace the Australian Nuclear Science and Technology Organisation (General) 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 applications 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 Australian Nuclear Science and Technology Organisation (General) Award 2000 1 (Current Enterprise Award).

[2] The application was made by the Community and Public Sector Union (CPSU) and the Association of Professional Engineers, Scientists and Managers Australia (APESMA).

[3] The application was supported by the Australian Government, the Australian Nuclear Science and Technology Organisation (ANSTO), the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (AMWU) and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia.

[4] On 6 May 2016 the parties filed the following joint material in support of the application:

[5] At the hearing of this matter on 23 May 2016:

[6] At the conclusion of the hearing we announced our decision to make the Australian Nuclear Science and Technology Organisation (ANSTO) Enterprise Award 2016 (Proposed Award) which had been agreed between the parties subject to the finalisation of its terms in conference with Commissioner Johns.

[7] On 8 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 term for the cashing out of annual leave.

[8] On 14 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 figures.

[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 20 July 2016.

[11] On 19 July 2016, the AMWU submitted that it agreed with the further amended version of the Proposed Award, but suggested additional amendments to the calculations in the various rates proposed for classifications within its coverage.

[12] On 19 July 2016, the Commission incorporated the figures proposed by the AMWU and provided the parties with revised versions of the Proposed Award and the table clarifying the proposed changes.

[13] On 20 July 2016, ANSTO advised that it agreed with most of the proposed changes, but suggested further amendments to the calculation of the meal allowance.

[14] On 22 July 2016, ANSTO and the AMWU jointly submitted to the Commission, that upon further review they agree with the meal allowance figures provided on the 19 July 2016.

[15] On 24 July 2016, the Commission provided to the parties with a final version of the Proposed Award incorporating all the changes agreed to. The parties were directed that, unless any objection was raised by 26 July 2016, the Reasons for Decision and Order would be issued.

[16] These are the reasons for our decision.

The approach

[17] 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. 2 We adopt that approach in this matter.

The legislative requirements

[18] 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:

[19] 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:

[20] 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:

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

[22] 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

[23] 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)

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

[25] It can be seen from this brief review that the Current Enterprise Award has 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).

[26] 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.

[27] It was submitted by the applicant that if the Current Enterprise Award were not modernised then it is likely that at a number of different modern industry and occupational awards may cover a limited number of its employees. They are:

[28] The parties agreed that employees covered by the Current Enterprise Award work in the Commonwealth public sector and, at present, there is no industry-based modern award that covers employees in that sector.

[29] It may be observed that coverage by a number of modern awards may lead to difficulties in enterprise bargaining. Further, it might lead to an unnecessary fragmentation of the award safety net and would fail to achieve the modern awards objective.

[30] 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)

[31] The parties submitted that the content of the modern industry and occupational awards are specific to a particular occupation or industry.

[32] Further, they jointly submitted that there are significant differences between the ANSTO Award and the modern industry and occupational awards which might otherwise apply, because those awards focus on the other industries and occupations.

[33] It was further submitted that the content of the modern industry and occupational awards do not reflect the terms and conditions currently operating in ANSTO.

[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 directed the Commission’s attention to the decision in Coleambally Irrigation Co-operative Limited v AWU and ors 3 in which the parties submitted that the Commission considered enterprise agreements that appeared to cover activities in the relevant industry

[36] The parties submitted that the Australian Nuclear Science and Technology Organisation Enterprise Agreement 2012-2014 4(Enterprise Agreement) set out terms and conditions which apply to most ANSTO employees.

[37] The parties submitted that the following terms and conditions from the Enterprise Agreement are reflected in the Current Enterprise Award:

[38] 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)

[39] It was submitted that there are enterprise specific terms and conditions that apply to employees of ANSTO in addition to the flextime, personal leave and redundancy entitlements set out above. A few are worthy of mention:

[40] The parties submitted that the Current Enterprise Award contains seven different employment streams that are unique to ANSTO and that each stream contains its own unique relatives that differ from other awards in the public sector.

[41] The parties submitted that the Full Bench of the Commission that modernised the APS Award recognised that the existence of established salary relativities was a factor in favour of making a modern enterprise award. The parties submitted that the established wage relativities in the Current Enterprise Award is a factor in making the Proposed Award.

[42] Robert Blissett gave evidence about the specific terms and conditions of employment. In summary the evidence as to the effect that:

[43] 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).

[44] The parties jointly submitted that:

[45] The modern award exercise, in its totality, is concerned with a safety net going forward from which the BOOT can be applied as an anchor point for bargaining.

[46] The parties submitted that the terms and conditions provided for in the Miscellaneous Award 2010 do not provide for a fair or relevant minimum safety net for the purpose of the BOOT.

[47] There is considerable force to these arguments and they were a factor in favour of making a modern enterprise award.

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

[48] All parties to the Current Enterprise Award supported the making of this modern enterprise award. No person opposed the award. Whilst 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)

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

Should a modern enterprise award be made?

[50] ANSTO 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 Nuclear Science and Technology Organisation (General) Award 2000.

[51] The history of the Current Enterprise Award discloses a rationale for its existence which remains current today. The terms of Current Enterprise Award 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 this enterprise, 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 the ANSTO.

[52] The above factors clearly made the case for such an outcome. We considered that a modern Australian Nuclear Science and Technology Organisation (ANSTO) Enterprise Award 2016 should be made.

[53] Consequently, we made the Award in the terms agreed between the parties as amended and provided by the Commission on 24 July 2016.

VICE PRESIDENT

Appearances:

H Fairhall, from Ashurst

L Benfell, from the CPSU

S Gheller, from APESMA

M Nicolaides, from the AMWU

Hearing details:

2014.

Sydney, Canberra, Melbourne

May 23.

 1   AT765755.

 2   [2015] FWCFB 616.

 3   [2014] FWCFB 2170.

 4   AE892599.

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