[2016] FWCFB 5706

The attached document replaces the document previously issued with the above code on 15 August 2016.

The names ‘Mr B Grahan’ and ‘Mr A Anastasia’ listed in paragraph [8] and in the appearances at the end of this decision were misspelt and have been amended accordingly.

Associate to Commissioner Johns

24 August 2016

[2016] FWCFB 5706


Fair Work Act 2009

s.157 – Exercise of powers to achieve modern award objective

Australian Government Industry Award 2016

Commonwealth employment



Exercise of powers to achieve modern award objective - whether modern award should be made - modern award should be made in the circumstances - order to be settled by member of Full Bench.


[1] On 6 May 2016 the Fair Work Commission (Commission), as presently constituted by this Full Bench, initiated of its own motion under section 157(3)(a) of the Fair Work Act 2009 (FW Act) in the making of a modern award to be known as the Australian Government Industry Award 2016 (AGIA).

[2] We did so because a number of Commonwealth employers:

[3] The Commonwealth employers who expressly stated an interest in being covered by the AGIA were:

[4] It was proposed that the AGIA will replace the following enterprise award-based transitional instruments:

(collectively, the “Replaced Awards”)

[5] If there is any doubt as to its continued existence, the AGIA will also replace the Australian Government Employers – Conditions and Salaries Award 2003 (GECSA).

[6] In support of the making of the AGIA the APSC filed:

[7] The making of the AGIA was also supported by the:

[8] At the hearing of this matter on 20 June 2016 the following appearances were recorded:

[9] At the conclusion of the hearing we announced our decision to make the AGIA subject to the finalisation of its terms in conference with Commissioner Johns.

[10] On 22 June 2016 the parties jointly filed a further amended version of the AGIA which addressed the issues identified during the hearing.

[11] Later on 22 June 2016, the Commission informed the parties, of minor changes it proposed to make to clause 4.1, Schedule J – clause J.9.1 and Schedule H – clause H8.8, of its own accord. No objection was raised to the proposed amendments

[12] Further, the Commission’s Awards Modernisation team suggested further amendments to the AGIA 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 in the AGIA.

[13] On 19 July 2016, the Commission provided the parties with:

[14] The parties were directed to consider the “questions” posed in the memo, and provide comments and/or objections to the amended version of the Proposed AGIA, by 22 July 2016.

[15] On 20 July 2016, the AMWU submitted that it agreed with the further amended version of the AGIA, but suggested an additional amendment in relation to the title “Provide Advanced First Aid”.

[16] On 22 July 2016, the APSC filed in the Commission a further amended version of the AGIA, accompanied with extensive comments on the issues raised, explaining why different outcomes had been reached.

[17] On 4 August 2016, a final version of the AGIA incorporating the changes proposed by the APSC was provided to the parties for final comments. The APSC responded the next day with further minor typographical amendments.

[18] On 8 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 AGIA would be finalised and the Reasons for Decision and Order would be issued.

[19] These are our reasons for decision.

The approach

[20] In examining the approach which should be taken it is useful to briefly review some of the history of the modern award process as it helps to put into context the task before us. That history was set out 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

[21] The above principles were adopted by the Commission (Commissioner Johns) in a Statement issued on 1 April 2016 (Principles Statement). The Principles Statement assisted in guiding the parties in their discussions about the development of the AGIA.

The power to make a modern award

[22] The Commission is empowered under paragraph 157(1)(b) of the FW Act to make a modern award if it is satisfied that making the modern award outside the system of 4 yearly reviews of modern awards is necessary to achieve the modern awards objective. The Commission may make a modern award on its own motion under subsection 157(3)(a) of the FW Act.

[23] The effect of the Commission making the AGIA is that the Replaced Awards will cease to cover (and can never again cover) any employee, or the employer or union parties currently covered by the Replaced Awards 4.


[24] Under section 143(1) of the FW Act a modern award must include terms setting out the employers and employees that are covered by the award. Clause 3 of the AGIA is a detailed coverage clause that, we are satisfied, complies with the requirements of section 143 of the FW Act in that it specifies the employers and employees of employers covered by the modern award. 5

[25] In short the AGIA will, subject to specific exclusions, cover employers in the Australian Government administration industry. That industry is defined to mean “all activities undertaken by bodies established by the Commonwealth for public purpose”. 6 The definition is deliberately intended to apply broadly, and cover the Commonwealth’s activities undertaken for a public purpose on its own behalf or, for example through a body corporate.

[26] The meaning of 'employer' is defined in the AGIA to mean:

[27] The key aspects of the definition of 'employer' are as follows:

[28] The AGIA is expressed to cover the employees of the employers that are covered by it. 9 Specific employees are excluded from the coverage.10 Consequently, we are satisfied that the AGIA complies with the requirements of sections 143(2)(b), 143(5)(b) and 143(7) of the FW Act.

[29] In accordance with subsection 143(8) of the FW Act, the AGIA is expressed not to cover employees who are covered by a modern enterprise award, or employers in relation to those employees.

[30] Finally on the subject of coverage we note that Ms Tait deposed that, during the process conducted by the APSC for the making of the AGIA, no employer that will be covered by the AGIA sought to be excluded from its coverage on the basis that they considered it inappropriate for them to be covered by the AGIA due to their activities.

Terms of the AGIA

[31] The AGIA contains only those terms that may be permitted in modern awards and, in the case of allowances, terms dealing with allowances ensure that they are separately and clearly identified in the award. 11 The AGIA also contains those terms that must be included in a modern award, pursuant to Subdivision C, Division 3, of Part 2-3 of the FW Act.

[32] The APSC submitted that all the terms of the AGIA are necessary to achieve the modern awards objective and, to the extent it is applicable, the minimum wages objective. 12

[33] There are two main parts to the AGIA. First, there are those parts of the AGIA that apply to all employees covered by the AGIA, namely, the body of the AGIA and Schedules A to D and Q to S (referred to as the 'body').

[34] The terms of the body of the AGIA reflect a consensus reached by interested parties in relation to terms that are commonly found in modern awards, and for which there was a "critical mass" or a consistency in entitlements across the GECSA and Replaced Awards.

[35] The body of the AGIA includes those terms that are required by the FW Act, namely:

In addition to the body of the AGIA certain employers agreed upon a schedule with a relevant union or unions that will apply only to that specific employer. Unless specifically indicated in the Schedule, those terms are intended to operate in addition to the terms in the body of the AGIA. The schedules reflect the fact that different employers have previously been covered by different industrial instruments, and that their operations and circumstances are different. The use of schedules has been necessary to maintain the safety net that has previously applied to specific employees. The schedules ensure that the award modernisation process does not disadvantage, nor create new rights for, those employees.

[37] The AGIA does not include any terms that are not permitted to be included in a modern award: see Subdivision D, Division 3, of Part 2-3 of the FW Act.

The necessity to achieve the modern awards objective

[38] We were required to be satisfied, on a proper basis, that the making of the AGIA was necessary to achieve the modern awards objective.

[39] The modern awards objective provides that:

[40] The factors listed in (a)-(h) are broad social objectives and, consequently, they are broad considerations which the Commission must take into account in considering whether a modern award meets the objective set by s,134(1), that is to say, whether it provides a fair and relevant minimum safety net of terms and conditions. 21 To the extent that each factor was relevant to the AGIA we took them into account.

[41] We were satisfied that the making of the AGIA would:

[42] Further, we were satisfied that the development of the AGIA was consistent with the Principles Statement in that the AGIA:

[43] In support of the making of the AGIA the APSC submitted the following:

[44] We accepted the correctness of those submissions (which were supported by the CPSU and the AMWU).

[45] Having considered all that was submitted in the matter and the terms of the AGIA we were satisfied that the making of the AGIA was consistent with the need to ensure a simple, easy to understand, stable and sustainable modern award system for Australia that avoids unnecessary overlap of modern awards. The AGIA will ensure that:


[46] As is apparent from our reasons above we were satisfied that a strong case had been made out for the creation of a modern award for the Australian Government Industry. We made the AGIA in the terms agreed between the parties and filed on 4 August 2016.



Mr B Gahan for Minter Ellison and D Tait for the APSC.

S Queenan and K Lejsek for the Australian Maritime Safety Authority.

L Benfell for the CPSU, the Community and Public Sector Union.

D Worthy and A Chadwick for the Australian Sports Commission.

A Anastasi for the Civil Aviation and Safety Authority.

H Ward for the National Gallery of Australia.

J Butler for the Australia Council for the Arts.

S McSwiney for the Australian Film, Television and Radio School.

W Escott for the Australian Prudential Regulation Authority.

E Baxter for Australian Hearing Services.

R Page and R Byun for the Special Broadcasting Service.

S Murphy for Tourism Australia.

M Nicolaides for the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU).

S Gheller for The Association of Professional Engineers, Scientists and Managers, Australia.

Hearing details:


Canberra, Melbourne, Sydney:

June 20

 1   [2015] FWCFB 616.

 2   http://www.airc.gov.au/awardmod/download/award_modernisation_request.pdf

 3   [2010] FWAFB 305, paragraph 3.

 4   See Item 29, Part 5, Division 2 of Schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009.

 5   Section 143(2) of the FW Act.

 6   Clause 3.2 of the AGIA.

 7   Clause 3.1(b).

 8   See sections 10 and 89 of the PGPA Act.

 9   Clause 3.2(b).

 10   Clauses 3.3 and 3.4, and Schedule A

 11   Section 139 FW Act.

 12   Section 138 FW Act.

 13   Clause 3 of the AGIA.

 14   Subsection 144(1) FW Act, clause 5 of the AGIA.

 15   Subsection 145A(1) FW Act, clauses 7.10 to 7.14 of the AGIA.

 16   Section 146 FW Act, clause 8 of the AGIA.

 17   Section 147 FW Act, clause 17 of the AGIA.

 18   Section 149 FW Act, clause 13.5 of the AGIA.

 19   Section 149B FW Act, clause 16.2 of the AGIA.

 20   Subsection 149C(1) FW Act, clause 16.4 of the AGIA.

 21   National Retail Association v Fair Work Commission [2014] FCAFC 118, para 109.

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