STATEMENT

Fair Work Act 2009
s.156 - 4 yearly review of modern awards

4 yearly review of modern awards – Proposed Norfolk Island Award
(AM2018/8)

4 yearly review of modern awards – proposed Norfolk Island Award.

[1] This Statement concerns an application made by the New South Wales Business Chamber Ltd (NSWBC) in conjunction with the Norfolk Island Chamber of Commerce Inc. (Norfolk Chamber) on 5 July 2018 seeking the making of an interim award for private sector employers and employees on Norfolk Island.

[2] A mention 1 on 12 July 2018 was attended by the following parties:

•  Australian Council of Trade Unions (ACTU);

•  Australian Hotels Association;

•  Australian Services Union (National) (ASU);

•  Local Government and Shires Association;

•  NSWBC; and

•  Norfolk Chamber.

[3] At the mention, the Applicants confirmed that the proposed interim award is the document titled Norfolk Island Interim Award 2018 at Annexure A to the submission of the NSWBC and Norfolk Chamber dated 9 July 2018 2 (proposed Interim Award). The Applicants also confirmed that this application and the related applications made on 30 June 2018 are made under s.156 of the Fair Work Act 2009 (Cth) (Act).

[4] At the mention, the ACTU indicated that it opposed the application on jurisdictional and other grounds, and the ASU indicated that it generally supported the ACTU case. It was agreed by the parties that the jurisdictional issues would be determined by a Full Bench of the Fair Work Commission (Commission) prior to consideration of the merits of the application.

[5] At the mention, I proposed in the interests of expedition that the Commission compile and publish a list of issues relating to the jurisdiction of the Commission to make the proposed Interim Award, as identified by the parties and the Commission. Accordingly, I proposed that the parties lodge with the Commission a list of jurisdictional issues they perceive to be raised by the application, by 12 noon on Friday 13 July 2018. No responses were received by that time.

[6] A draft list of issues relating to the jurisdiction of the Commission to make the proposed Interim Award is at Attachment A.

[7] If any party wishes to add an issue to this draft list or to reframe any issue, they are asked to lodge comments to this effect by 12 noon on Monday 16 July 2018. The Commission will then publish a final version of the list.

[8] It is acknowledged that this list of issues may not be exhaustive and its publication will not limit the parties’ capacity to raise further issues relating to the Commission’s jurisdiction in their submissions to the Commission.

[9] Draft Directions are at Attachment B. Any comments on the draft Directions are also to be lodged by 12 noon on Monday 16 July 2018.

PRESIDENT

Printed by authority of the Commonwealth Government Printer

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ATTACHMENT A

AM2018/8

DRAFT LIST OF ISSUES RELATING TO THE JURISDICTION OF THE COMMISSION

In this document:

● Act means the Fair Work Act 2009 (Cth);

● Commission means the Fair Work Commission;

● proposed Interim Award means the document titled Norfolk Island Interim Award 2018 at Annexure A to the submission of the New South Wales Business Chamber Ltd and Norfolk Island Chamber of Commerce Inc. dated 9 July 2018.

1. Definition of ‘Norfolk Island’

1.1 How does the definition of ‘Norfolk Island’ in the proposed Interim Award relevantly differ from the definition of the ‘Territory of Norfolk Island’ in Schedule 1 to the Norfolk Island Act 1979 (Cth)? In particular, would the proposed Interim Award cover any additional employers or employees if the references in cl.4.1(a) of the document to ‘Norfolk Island’ were instead references to ‘the Territory of Norfolk Island’?

2. Section 154 — State-based difference terms

2.1 Does the proposed Interim Award include any ‘State-based difference terms’ pursuant to s.154(a) of the Act? If so, which terms of the document constitute such terms?

2.2 Does the proposed Interim Award include any ‘State-based difference terms’ pursuant to s.154(b) of the Act? If so, which terms of the document constitute such terms?

2.3 If the proposed Interim Award does include any State-based difference terms within the meaning of s.154, are these terms prohibited by the Act?

3. Section 143 — Coverage terms of modern awards

3.1 Does cl.4.1(a) of the proposed Interim Award comply with ss.143(1)–(6) of the Act?

3.2 Would the coverage of any existing modern award need to be varied if the proposed Interim Award was to be made by the Commission? If so, which award(s)?

4. Section 156(3) — work value

4.1 As the employees to be covered by the proposed Interim Award are presently covered by minimum wage rates under existing modern awards, would s.156(3) of the Act apply to the fixing of the wage rates, if the proposed Interim Award was to be made by the Commission?

5. Interim award

5.1 Can the Commission make an interim award under Division 4 of Part 2–3 of the Act — that is, make an award on the basis of a preliminary view that the terms of the modern award satisfy s.138 of the Act, pending a full and final determination?

ATTACHMENT B

DRAFT DIRECTIONS

It is directed that:

1. On or before 4.00 pm on Tuesday 24 July 2018, the Applicants, ACTU and any other interested parties are to file in the Commission comprehensive written submissions on the jurisdiction of the Commission to make the proposed Norfolk Island Interim Award 2018. Submissions are to address each of the issues identified in the list published by the Commission in this matter, issue by issue and following the numbering in the published list.

2. On or before 4.00 pm on Tuesday 31 July 2018, the Applicants, ACTU and any other interested parties are to file in the Commission reply submissions on the jurisdictional issues.

3. The matter will be listed for hearing of the jurisdictional issues before a Full Bench in Sydney at 9.30am on Friday, 3 August 2018.

4. Leave is granted to apply generally.

5. All material should be sent in a Word document to amod@fwc.gov.au.

6. Copies of any submissions filed in response to these Directions will be published on the 4 yearly review of modern awards – AM2018/8 page of the Commission’s website.

7. On or before Wednesday, 1 August 2018, the Applicants and the ACTU are to confer and report back to the Commission on proposed Directions for the programming of the hearing of the merits of the application.

PRESIDENT

 1   Transcript – 12 July 2018.

 2   Submission – 9 July 2018.