Australian Broadcasting Corporation (ABC); ABC-CPSU AWARD 2000 and others
[2016] FWCFB 3578
•24 AUGUST 2016
| [2016] FWCFB 3578 |
| FAIR WORK COMMISSION |
REASONS FOR DECISION |
Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch. 6, Item 4 - Application to make a modern award to replace an enterprise instrument.
(EM2013/85)
ABC-CPSU AWARD 2000 and others
[AP768965]
Commonwealth employment | |
VICE PRESIDENT CATANZARITI | SYDNEY, 24 AUGUST 2016 |
Application for a modern enterprise award to replace the ABC-CPSU Award 2000; ABC Journalists and Reporters Award 2000; Actors (ABC Radio and Television) 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 following awards (Current Enterprise Awards):
● ABC-CPSU Award 2000;
● ABC Journalists and Reporters Award 2000; and
● Actors (ABC Radio and Television) Award 2000.
[2] The application was made by the Australian Broadcasting Corporation (ABC) and heard by us on 23 May 2016.
[3] At the hearing of this matter:
● Mr G Jolly of Minter Ellison appeared with permission pursuant to s.596(2)(a) for the ABC; and
● Mr L Benfell appeared with Mr K Barlow for the Community and Public Sector Union (CPSU) and Media, Entertainment and Arts Alliance (MEAA).
[4] At the conclusion of the hearing we announced our decision to make the Australian Broadcasting Corporation Enterprise Award 2016 (Proposed Award) which had been agreed between the parties, subject to the finalisation of its terms by Commissioner Johns.
[5] These are the reasons for our decision.
[6] On 6 May 2016 the applicant filed the following material in support of the application:
a) Joint outline of submissions (Exhibit B);
b) Statement of Kathryn Gatti, Employment Counsel at the ABC (Exhibit A); and
c) Draft of the Proposed Award.
[7] The application is supported by the CPSU and MEAA.
[8] On 20 June 2016 the parties jointly filed and an amended version of the Proposed Award, which addressed the issues raised by the Full Bench on 23 May 2016.
[9] On 19 July 2016, the Commission’s Award 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, along with other minor changes.
[10] The Commission provided the parties with:
● a copy of the Proposed Award (including changes incorporated from [[2016] FWCFB 3500);
● a table clarifying the changes made to the Proposed Award.
[11] The parties were directed to consider the changes proposed, and provide comments and/or objections to the amended version of the Proposed Award, by 21 July 2016.
[12] On 21 July 2016, the ABC submitted that it agreed with most of the proposed changes, but suggested further amendments to the calculation of the wages and allowances figures.
[13] On 22 July 2016, the Commission provided the parties with a final version of the Proposed Award, incorporating the ABC’s proposed changes and directed that, unless any objection was raised by 25 July 2016, the Reasons for Decision and Order will be issued. No objection was raised to the final version of the Proposed Award
[14] These are the reasons for our decision
The approach
[15] 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. 1 We adopt that approach in this matter.
The legislative requirements
[16] 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:
“(5) In deciding whether or not to make a modern enterprise award, and in determining the content of that award, the FWC must take into account the following:
(a) the circumstances that led to the making of the enterprise instrument rather than an instrument of more general application;
(b) 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;
(c) 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);
(d) 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;
(e) the extent to which the enterprise instrument provides enterprise-specific terms and conditions of employment;
(f) 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;
(g) the views of the persons covered by the enterprise instrument;
(h) any other matter prescribed by the regulations.”
[17] 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:
“6 The modern enterprise awards objective
(1) The modern awards objective and the minimum wages objective apply to the FWC making a modern enterprise award under this Division.
(2) However, in applying the modern awards objective and the minimum wages objective, the FWC must recognise that modern enterprise awards may provide terms and conditions tailored to reflect employment arrangements that have been developed in relation to the relevant enterprises. This is the modern enterprise awards objective.”
[18] 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:
“134 The modern awards objective
What is the modern awards objective?
(1) The FWC must ensure that modern awards, together with the National Employment Standards, provide a fair and relevant minimum safety net of terms and conditions, taking into account:
(a) relative living standards and the needs of the low paid; and
(b) the need to encourage collective bargaining; and
(c) the need to promote social inclusion through increased workforce participation; and
(d) the need to promote flexible modern work practices and the efficient and productive performance of work; and
(e) the principle of equal remuneration for work of equal or comparable value; and
(f) the likely impact of any exercise of modern award powers on business, including on productivity, employment costs and the regulatory burden; and
(g) the need to ensure a simple, easy to understand, stable and sustainable modern award system for Australia that avoids unnecessary overlap of modern awards; and
(h) the likely impact of any exercise of modern award powers on employment growth, inflation and the sustainability, performance and competitiveness of the national economy.
This is the modern awards objective.”
[19] It is also relevant to draw attention to item 11 of Division 3 which provides:
“11 Enterprise instrument modernisation process is not intended to result in reduction in take-home pay
(1) The enterprise instrument modernisation process is not intended to result in a reduction in the take-home pay of employees.
(2) An employee’s take-home pay is the pay an employee actually receives:
(a) including wages and incentive-based payments, and additional amounts such as allowances and overtime; but
(b) disregarding the effect of any deductions that are made as permitted by section 324 of the FW Act.
Note: Deductions permitted by section 324 of the FW Act may (for example) include deductions under salary sacrificing arrangements.
(3) An employee suffers a modernisation-related reduction in take-home pay if, and only if:
(a) a modern enterprise award made in the enterprise instrument modernisation process starts to apply to the employee when the award comes into operation; and
(b) the employee is employed in the same position as (or a position that is comparable to) the position he or she was employed in immediately before the modern enterprise award came into operation; and
(c) the amount of the employee’s take-home pay for working particular hours or for a particular quantity of work after the modern enterprise award comes into operation is less than what would have been the employee’s take-home pay for those hours or that quantity of work immediately before the award came into operation; and
(d) that reduction in the employee’s take-home pay is attributable to the enterprise instrument modernisation process.
[20] 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
[21] 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)
[22] The applicant provided a history of the industrial arrangements at the ABC. That history can be summarised as follows:
(a) From at least the late 1940s, the ABC was the subject of a series of determinations made by the Commonwealth Public Service Arbitrator which only applied to the ABC;
(b) Upon the abolition of the Commonwealth Public Service Arbitrator, determinations relating the ABC became awards of the Conciliation and Arbitration Commission. These awards only applied to the ABC and were supplemented by the Australian Broadcasting Corporation Services Rules and the Australian Broadcasting Corporation General Orders;
(c) Since 1990 the ABC has been covered by enterprise agreements and enterprise awards.
[23] It can be seen from this brief review that the ABC’s industrial arrangement that it has a long and distinct history. This factor weighed 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).
[24] It was submitted that there is no single award that would, but for the Proposed Award, cover all employees who are covered by the Proposed Award.
[25] It was also submitted that a limited number of employees may be covered by one of the following industry or occupation-based modern awards:
- Broadcasting and Recorded Entertainment Award 2010 (BREA);
- Professional Employees Award 2010;
- General Retail Industry Award 2010; and
- Journalists Published Media Award 2010.
[26] It may be observed that coverage by a large 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.
[27] It was further submitted that, if the Proposed Award were not made, many employees would fall outside the coverage of all other modern industry and occupational awards. The parties submitted that:
(a) The Australian Public Service Enterprise Award 2015 does not apply because it is limited to the Australian Public Service;
(b) The Clerks—Private Sector Award 2010 does not apply because it is limited to the private sector;
(c) The Miscellaneous Award 2010 does not apply because there is an industry award (being theBREA); and
(d) The Legal Services Award 2010 does not apply because it does not cover employers whose primary activity is not within the legal services industry
[28] It may be observed that those employees would therefore lose the benefit of an award safety net and their access to unfair dismissal protections and the dispute settlement provisions of the Act would be weakened.
[29] These factors weighed in favour of making the Proposed 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)
[30] The parties submitted that the main award to be considered in this regard was the BREA.
[31] However, they jointly submitted that there are significant differences between the Current Enterprise Awards and the BREA. It was submitted that the major differences include:
(a) Different ordinary hours of work (quantum, spread and span);
(b) Different penalties associated with working outside the span of ordinary hours;
(c) Different allowances;
(d) An entitlement to personal/carer’s leave that goes beyond the National Employment Standards; and
(e) A range of facilitative and exemptions provisions.
[32] It was submitted that the content of the BREA does not reflect the needs, terms and conditions in the ABC.
[33] 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. This factor 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)
[34] The parties jointly submitted that the ABC operates in, broadly speaking, two industries: the Commonwealth public sector and the broadcasting industry. The parties submitted that the ABC’s employment conditions are different to both of these industries.
[35] The unique nature of the ABC and the terms and conditions of employment applying to its employees, as compared with the aforementioned industries, 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)
[36] It was submitted that there are enterprise specific terms and conditions that apply to employees of the applicant. A few are worthy of mention:
● classifications;
● hours of work;
● span of hours;
● additional leave, including personal/carer’s leave and annual leave;
● penalty rates; and
● a unique ‘remote localities’ provision.
[37] The parties submitted that the Current Enterprise Awards provide base terms and conditions that are suited and adapted to its operations.
[38] 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).
[39] The parties jointly submitted that, were the Proposed Award not made:
● The BREA would apply to many ABC employees;
● Some professional employees could be covered by the Professional Employees Award 2010; and
● A large number of employees would be award free.
[40] The parties submitted that a decision to make the Proposed Award would not adversely affect persons not covered by the award.
[41] These factors weighed in favour of making a modern enterprise award.
The views of the persons covered by the enterprise instrument: Item 4(5)(g)
[42] All parties to the Current Enterprise Awards 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)
[43] There were regulations relevant to this criterion.
Should a modern enterprise award be made?
[44] The ABC is a unique organisation. There is no convenient alternative award that can be said to better satisfy the modern awards objective than modernising the Current Enterprise Awards.
[45] The history of the awards discloses a rationale for their existence which remains current today. The terms of the Current Enterprise Awards 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 ABC.
[46] The above factors clearly made the case for such an outcome. We considered that the Proposed Award should be made.
[47] Consequently, we made the Proposed Award in the terms agreed between the parties and as provided by the Commission on 22 July 2016.
VICE PRESIDENT
Appearances:
G Jolly of Minter Ellison for the ABC
L Benfell and K Barlow for the Community and Public Sector Union
Hearing details:
2016.
Sydney:
May 23.
1 [2015] FWCFB 616.
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