4 yearly review of modern awards – Proposed Norfolk Island Award

[2018] FWC 4186

[2018] FWC 4186

FAIR WORK COMMISSION

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)

JUSTICE ROSS, PRESIDENT SYDNEY, 16 JULY 2018

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) (collectively, the Applicants) on 5 July 2018 seeking the making of an interim award for private sector employers and employees on Norfolk Island.

[2] The Applicants have 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 1 (proposed Interim Award). The Applicants have 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).

[3] In the interests of expedition the Commission has compiled the attached list of issues relating to the jurisdiction of the Commission to make the proposed Interim Award.

[4] The list of issues is not exhaustive and parties may raise further issues relating to the Commission’s jurisdiction in their submissions to the Commission.

[5] Directions 2 have been issued in relation to the next steps in these proceedings.

PRESIDENT

Printed by authority of the Commonwealth Government Printer

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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?

 1   Submission – 9 July 2018.

 2   Directions – 16 July 2018.