AMP Life Ltd
[2010] FWA 2475
•26 MARCH 2010
[2010] FWA 2475 |
|
DECISION |
Workplace Relations Act 1996
s.158—Application to vary or revoke a modern award
AMP Life Ltd
(AM2010/2)
PROFESSIONAL EMPLOYEES AWARD 2010
[MA000065]
COMMISSIONER SMITH | MELBOURNE, 26 MARCH 2010 |
[1] This is an application pursuant to s.158 of the Fair Work Act 2009 (the Act) to vary the Professional Employees Award 2010 (the award) to include the AMP Superannuation Saving Trust as a default fund in the award. The application is made by AMP life Ltd. The application is supported by the Australian Information Industry Association (AIIA).
[2] Section 157(3) provides that Fair Work Australia (FWA) may make a determination varying an award either on its own motion or on application pursuant to s.158 of the Act. Section 158 of the Act provides who may make an application and this is relevantly limited to:
- An employer, employee or organisation that is covered by the modern award; or
- An organisation that is entitled to represent the industrial interests of one or more employers or employees that are covered by the modern award.
[3] The coverage of the award is contained in clause 4:
“4.1 This award covers employers throughout Australia with respect to their employees performing professional engineering and professional scientific duties who are covered by the classifications in Schedule B—Classification Structure and Definitions of the award and those employees.
4.2 This award covers employers throughout Australia principally engaged in the information technology industry, the quality auditing industry or the telecommunications services industry and their employees who are covered by the classifications in Schedule B.”
[4] In its application AMP Life Ltd states that it is in the financial services industry.
[5] In response to the application, the Australian Industry Group (AiG) argue firstly, that AMP Life Ltd does not have standing under the Act to make an application and then secondly, the application does not met the requirements for varying the modern award. In this connection AiG submit that AMP Life Ltd is not listed as a fund in any award based transitional instrument relevant to the coverage of the award. It adds that the application does not have the support of the main industry organisation which represents employers of professionals in respect of industrial matters.
[6] The Association of Professional Engineers, Scientists and Managers Australia (APESMA) submits that the application should be dismissed. APESMA argues that AMP Life Ltd is not a nominated fund in any award based transitional instrument.
[7] AMP Life Ltd did not lodge any submissions in reply to the submissions of AiG or APESMA.
[8] The submission by AiG that AMP Life Ltd does not have standing to make the application has force. It does not purport to be an employer of professional engineers or scientists covered by the classifications in the award, nor does it submit that it is principally engaged in information technology, quality auditing or telecommunications services and employ persons covered by classifications in the award. Finally it is not an organisation that is entitled to represent the industrial interests of one or more employers or employees who are covered by the award.
[9] On this basis the application must be dismissed.
[10] However, I would add that FWA does have the capacity to vary an award on its own motion. I do not propose to act on my own motion as it is clear that to include AMP Life Ltd would not be consistent with approach taken in establishing default funds in modern awards. This is not to say that employees can not choose AMP Life Ltd as clause 17.4(d) of the award makes clear.
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