Australian Municipal, Administrative, Clerical and Services Union (EM2013/102, EM2013/104 and EM2013/105) Clerical industry
[2014] FWCFB 7989
•12 DECEMBER 2014
[2014] FWCFB 7989
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.
Australian Municipal, Administrative, Clerical and Services Union
(EM2013/102, EM2013/104 and EM2013/105)
Clerical industry
SENIOR DEPUTY PRESIDENT ACTON
DEPUTY PRESIDENT HAMILTON
| COMMISSIONER LEE | MELBOURNE, 12 DECEMBER 2014 |
Applications to make modern enterprise awards to replace enterprise instruments - applications invalid or refused.
Introduction
[1] This decision deals with three applications to make modern enterprise awards to replace enterprise instruments.
[2] The applicant in each application is the Australian Municipal, Administrative, Clerical
and Services Union (ASU). The application numbers and the enterprise instruments are as
follows:
Application no. Enterprise instrument EM2013/102 Racecourse Totalisators (State) Award1 (RT Award) EM2013/104 TAB Clerical and Administrative Staff PhoneTAB Operators Award 20042 (Phonetab Award) EM2013/105 TABCORP Wagering Employees Award 20033 (Wagering Award)
[3] The RT Award, Phonetab Award and Wagering Award are each a Workplace Relations Act 2009 (Cth) instrument (WR Act instrument) that became a transitional
instrument on the WR Act repeal day.4 There is no dispute that each comes within the
definition of an enterprise instrument in the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) (TPCA Act).5
[4] Submissions in respect of the applications were made to us by the ASU and TAB LIMITED (TL), TABCORP HOLDINGS LIMITED (THL) and TABCORP WAGERING HOLDINGS PTY LTD (TWHL) (collectively the employers). We granted the employers permission to be represented by a lawyer having regard to the provisions of s.596(2)(a) of the
Fair Work Act 2009 (Cth) (FW Act). We considered it would enable the matters to be dealt
with more efficiently, taking into account the complexity of the matters as they involved
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consideration of provisions of the TPCA Act and their interaction with the FW Act. Further,
there was no objection to such representation.
[5] In dealing with the applications, we set out the relevant statutory provisions, consider
the standing of the applicants, then consider the substantive merits of any surviving
applications and conclude.
Statutory provisions
[6] Item 2 of schedule 6 of the TPCA Act defines an “enterprise instrument”.
[7] Item 4 of schedule 6 of the TPCA Act deals with the enterprise instrument modernisation process as follows:
“4 The enterprise instrument modernisation process (1) The enterprise instrument modernisation process is the process of making modern
awards under this Division to replace enterprise instruments.(2) On application, the FWC may make a modern award (a modern enterprise award) to
replace an enterprise instrument.(3) The application may be made only:
(a) by a person covered by the enterprise instrument; and (b)
during the period starting on the WR Act repeal day and ending at the end of 31 December 2013.
(4) A modern enterprise award must be made by a Full Bench. (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;
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(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.
Note: A variation referred to in paragraph (c) may, for example, be a variation to reflect the outcome of the AFPC’s final wage review under the WR Act, or to include transitional arrangements in the modern award. (5A) If the FWC makes a modern enterprise award before the FW (safety net provisions) commencement day, the modern enterprise award must not be expressed to commence on a day earlier than the FW (safety net provisions) commencement day. Note: For when a modern enterprise award is in operation, see item 17. (6) The regulations may deal with other matters relating to the enterprise instrument
modernisation process.”
[8] Item 3 of schedule 3 of the TPCA Act sets out who are covered by a transitional instrument and to whom it applies and relevantly provides as follows:
“3 The employees, employers etc. who are covered by a transitional instrument and
to whom it applies(1) A transitional instrument covers the same employees, employers and any other persons that it would have covered (however described in the instrument or WR Act) if the WR Act had continued in operation. Note 1: The expression covers is used to indicate the range of employees, employers etc. to whom the instrument potentially applies (see subitem (2)). The employees, employers etc. who are within this range will depend on terms of the instrument, and on any relevant provisions of the WR Act. Note 2: Depending on the terms of a transitional instrument and any relevant provisions of the WR Act, the instrument’s coverage may extend to people who become employees after the instrument becomes a transitional instrument.
(2)
A transitional instrument applies to the same employees, employers and any other persons the instrument covers as would, if the WR Act had continued in operation, have been:
(a) required by the WR Act to comply with terms of the instrument; or (b) entitled under the WR Act to enforce terms of the instrument. Note: The expression applies is used to indicate the range of employees, employers etc. who are
required to comply with, or can enforce, the terms of a transitional instrument.”
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[9] Item 6 of schedule 6 of the TPCA Act is of further relevance. It provides as follows:
“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. Note 1: See also item 11 (enterprise instrument modernisation process is not intended to result in reduction in take-home pay).
Note 2: See also item 16A (how the FW Act applies to the enterprise instrument modernisation process
before the FW (safety net provisions) commencement day).”[10] The modern awards objective is set out in s.134 of the FW Act 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 (da) the need to provide additional remuneration for: (i) employees working overtime; or
(ii) employees working unsocial, irregular or unpredictable hours; or
(iii) employees working on weekends or public holidays; or
(iv) employees working shifts; 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
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(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.
When does the modern awards objective apply?
(2) The modern awards objective applies to the performance or exercise of the FWC’s modern award powers, which are:
(a) the FWC’s functions or powers under this Part; and (b) the FWC’s functions or powers under Part 2-6, so far as they relate to modern award minimum wages. Note: The FWC must also take into account the objects of this Act and any other applicable provisions. For example, if the FWC is setting, varying or revoking modern award minimum wages, the minimum wages objective also applies (see section 284).” [11] The minimum wages objective is set out in s.284 of the FW Act as follows:
“284 The minimum wages objective What is the minimum wages objective? (1) The FWC must establish and maintain a safety net of fair minimum wages, taking into
account:
(a)
the performance and competitiveness of the national economy, including productivity, business competitiveness and viability, inflation and employment growth; and
(b) promoting social inclusion through increased workforce participation; and (c) relative living standards and the needs of the low paid; and (d)
the principle of equal remuneration for work of equal or comparable value; and
(e)
providing a comprehensive range of fair minimum wages to junior employees, employees to whom training arrangements apply and employees with a disability.
This is the minimum wages objective.
When does the minimum wages objective apply?
(2) The minimum wages objective applies to the performance or exercise of:
(a) the FWC’s functions or powers under this Part; and
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(b)
the FWC’s functions or powers under Part 2-3, so far as they relate to setting, varying or revoking modern award minimum wages.
Note: The FWC must also take into account the objects of this Act and any other applicable provisions. For example, if the FWC is setting, varying or revoking modern award minimum wages, the modern awards objective also applies (see section 134). Meaning of modern award minimum wages (3) Modern award minimum wages are the rates of minimum wages in modern awards, including:
(a) wage rates for junior employees, employees to whom training arrangements apply and employees with a disability; and (b) casual loadings; and (c) piece rates. Meaning of setting and varying modern award minimum wages (4) Setting modern award minimum wages is the initial setting of one or more new modern award minimum wages in a modern award, either in the award as originally made or by a later variation of the award. Varying modern award minimum wages is varying the current rate of one or more modern award minimum wages.”
[12] Items 7 and 8 of schedule 6 of the TPCA Act deal with the terms of modern enterprise awards. They provide as follows:
“7 Terms of modern enterprise awards (1)
Subject to this item and item 8, Division 3 of Part 2-3 of the FW Act (which deals with terms of modern awards) applies in relation to a modern enterprise award made under this Division.
Note: See also item 16A (how the FW Act applies to the enterprise instrument modernisation process
before the FW (safety net provisions) commencement day).Increases in entitlements (2)
If the making of a modern enterprise award results in an increase in an employee’s entitlements, the modern enterprise award may provide for the increases to take effect in stages.
Industry-specific redundancy schemes (3)
If a modern award includes an industry-specific redundancy scheme in relation to a particular industry, and the FWC makes a modern enterprise award that covers persons who operate in that industry, the FWC may include the industry-specific redundancy scheme in the modern enterprise award.
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8 Coverage terms Coverage terms must be included
(1) A modern enterprise award must include terms (coverage terms) setting out, in
accordance with this item:
(a) the enterprise or enterprises to which the modern enterprise award relates; and (b) the employer or employers, employees and organisations that are covered by the modern enterprise award. Enterprises (2) A modern enterprise award must be expressed to relate:
(a) to a single enterprise (or a part of a single enterprise) only; or (b) to one or more enterprises, but only if the employers all carry on similar business activities under the same franchise and are: (i) franchisees of the same franchisor; or
(ii) related bodies corporate of the same franchisor; or
(iii) any combination of the above.
Employers and employees
(3) A modern enterprise award must be expressed to cover:
(a)
a specified employer that carries on, or specified employers that carry on, the enterprise or enterprises referred to in subitem (2); and
(b)
specified employees of the employer or employers covered by the modern enterprise award.
Organisations (4) A modern enterprise award may be expressed to cover one or more specified
organisations, in relation to:
(a) all or specified employees covered by the award; or (b) the employer, or all or specified employers, covered by the award. Outworker entities (5) A modern enterprise award must not be expressed to cover outworker entities.
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How coverage etc. is expressed
(6) For the purposes of subitem (2), an enterprise must be specified:
(a) if paragraph (2)(a) applies to the enterprise– by name; or (b) if paragraph (2)(b) applies to the enterprise—by name, or by the name of the franchise. (7) For the purposes of subitems (3) and (4):
(a) an employer or employers may be specified by name or by inclusion in a specified class or specified classes; and (b) employees must be specified by inclusion in a specified class or specified classes; and (c) organisations must be specified by name. Employees not traditionally covered by awards etc. (8) A modern enterprise award must not be expressed to cover classes of employees:
(a) who, because of the nature or seniority of their role, have traditionally not been covered by awards (whether made under laws of the Commonwealth or the States); or (b) who perform work that is not of a similar nature to work that has traditionally been regulated by such awards. Note: For example, in some industries, managerial employees have traditionally not been covered by
awards.”
[13] Item 9 of schedule 6 deals with the termination of enterprise instruments and relevantly provides as follows:
“9 Variation and termination of certain instruments to take account of enterprise
instrument modernisation process…(2) The FWC must, as soon as practicable after a modern enterprise award that is made to
replace an enterprise instrument comes into operation:
(a)
terminate the enterprise instrument (if it has not already terminated under subitem (1)); and
(b) vary or terminate (as appropriate) any of the following (modernisable instruments):
(i) other award based transitional instruments;
(ii) transitional APCSs;
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(iii) other Division 2B State awards;
so that employees who were covered by the enterprise instrument are no
longer covered by those modernisable instruments.Note 1: The main provisions about transitional instruments are in Schedule 3, the main provisions about transitional APCSs are in Schedule 9, and the main provisions about Division 2B State awards are in Schedule 3A.
Note 2:
This item does not limit the effect of any other provision of this Act under which a modernisable instrument ceases to cover a person from a time earlier than when the instrument is terminated or varied under this item.
(3) If the FWC decides not to make a modern enterprise award to replace an enterprise
instrument, the instrument terminates when that decision comes into operation…(4) If, by the end of the period specified in paragraph 4(3)(b), no application under item 4 or 5 has been made in relation to an enterprise instrument, the instrument terminates at the end of that period.” [14] Item 5 of schedule 6 of the TPCA Act is not presently relevant.
[15] Item 10 of schedule 6 of the TPCA Act concerns notification of the cut-off for the enterprise instrument modernisation process and is as follows:
“10 Notification of the cut-off for the enterprise instrument modernisation process (1) The FWC must, at least 6 months before the end of the period specified in
paragraph 4(3)(b), advise any persons still covered by an enterprise instrument:
(a) that the period for making applications under items 4 and 5 ends on 31 December 2013; and (b) of the consequences for the enterprise instrument if an application in relation to the instrument is not made. (2) The FWC may give that advice by any means it considers appropriate. (3) Section 625 of the FW Act (which deals with delegation by the President of functions and powers of the FWC) has effect as if subsection (2) of that section included a reference to the FWC’s functions and powers under this item.”
[16] Items 4 and 6 of schedule 6 of the TPCA Act were considered by the Full Federal
Court of Australia in Yum! Restaurants Australia Pty Ltd v Fair Work Australia Full Bench.6
In Yum, the Full Federal Court stated:
“21
Items 4 and 6 operate together such that the ‘objective’ set forth in item 6(2) forms part of the single decision-making process engaged in when considering ‘whether or not to make a modern enterprise award’. There are not two clearly separated decision-making processes whereby item 4(5) alone dictates the considerations to be taken into account when deciding whether or not to make a modern enterprise award and thereafter separate consideration is given to the objectives referred to in item 6 when determining the content of the modern
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enterprise award. Rejected are the submissions advanced by Senior Counsel on behalf of the Respondents that consideration should be given at the outset to whether or not an award should be made, and only thereafter to the content of any award.
22 So much, it is concluded, necessarily follows from:
the conceptual difficulty of determining whether a modern enterprise award should be made without at the same time giving consideration to the possible content of a modern enterprise award, if one were to be made; the conceptual difficulty of even embarking upon the process of determining whether or not to make a modern enterprise award free of any consideration being given to the ‘modern enterprise awards objective’;
the terms of item 4(5) itself which refer at the outset to a composite decision-making process of ‘deciding whether or not to make a modern enterprise award, and in determining the content of that award’; the heading to Div 2, the heading to item 4 and the terms of item 4(1) which refers to a single ‘enterprise instrument modernisation process’; and the terms of item 4(5)(f), in particular, namely a legislative mandate to consider ‘the likely impact … of a decision to make, or not make, the modern enterprise award’. 23 Limited assistance may also be gleaned from the Explanatory Memorandum to
the Fair Work (Transitional Provisions and Consequential Amendments) Bill
2009 (Cth) which provided in part as follows:
256. The modern enterprise awards objective requires FWA to recognise that modern enterprise awards may provide tailored terms and conditions of employment that reflect arrangements that have developed in relation to specific enterprises.
257. The intention of this item is that the factors listed in paragraphs 134(1)(a)-(h) and 284(1)(a)-(e) of the [Fair Work Bill 2008] relating to the modern awards objective and minimum wages objective respectively should apply to the making of modern enterprise awards, as they do to the making of modern awards generally. However, the minimum terms and conditions for a modern enterprise award may not necessarily be the same as those that apply to an industry or occupation-based modern award.
258. An enterprise may have developed employment arrangements over a period of time that meet the particular needs of that enterprise and reflect the way in which the enterprise operates. The criteria that FWA will apply in deciding whether to make a modern enterprise award require FWA to consider any
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enterprise specific arrangements that apply in a particular enterprise. FWA will be able to maintain any enterprise specific arrangements in a modern enterprise award where it considers that this is appropriate to do so.
The explanation provided, perhaps, proffers little further guidance than is provided by the terms of items 4 and 6. But the explanation is consistent with the process being a single integrated process which requires consideration of the objective in item 6 at the time the initial decision as to whether or not to make a ‘modern enterprise award’ is made…
34 Properly construed, it is respectfully considered that the reasons of the Full Bench expose the fact that it approached the task of considering those matters which it was required to ‘take into account’ (item 4(5)) and also ‘recognise[d]’ the ‘modern enterprise awards objective’ set forth in Item 6.
35 It may be queried whether item 6(2) is properly to be characterised as a ‘modification’ of the modern awards objective. Item 6(2) unquestionably requires the Full Bench to ‘recognise’ that modern enterprise awards may provide terms and conditions ‘tailored to reflect employment arrangements’. A modern enterprise award may thus contain terms ‘tailored’ in the manner specified and thereby provide a different safety net.
36 Whatever may be the correct characterisation of item 6(2), it is considered that the reasons for decision of the Full Bench properly ‘recognise’ that a modern enterprise award may contain different terms and conditions. Indeed, the reasoning process of the Full Bench repeatedly grappled with the prospect of whether a modern enterprise award should be made to accommodate different enterprise-specific terms and conditions. The manner in which it approached and weighed the competing considerations was a matter entrusted to the Full Bench; any error would be an error within jurisdiction. Rather than exposing a decision-maker ‘overborne by the need for a single national modern award standard’, those reasons reveal that the Full Bench considered whether there should be ‘terms and conditions tailored to reflect employment arrangements that have been developed in relation to the relevant enterprise …’.”
Standing of the applicants
[17] As indicated, there is no dispute and we accept that the RT Award, the Phonetab Award and the Wagering Award are enterprise instruments.
[18] The applications in respect of the RT Award, the Phonetab Award and the Wagering Award were made to the Fair Work Commission (FWC) on 24 December 2013. Pursuant to item 4(3)(a) of schedule 6 of the TPCA Act, the applications must have been made by a person covered by the respective enterprise instruments. Each application was made by the ASU.
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[19] With respect to coverage, the “Area, Incidence and Duration” clause of the RT Award
is as follows:
“18. AREA, INCIDENCE AND DURATION The award published 11 February 2000 (313 I.G. 385) rescinds and replaces the Racecourse Totalisators (State) Award published 20 November 1998 (307 I.G. 240) and all variations thereof and the Racecourse Totalisators (State) (Wages) Award published 20 November 1998 (307 I.G. 249) and all variations thereof.
This award shall apply to the classes of employees employed at any horse, trotting and greyhound courses within the State, excluding the county of Yancowinna, in respect of fixtures where either the TAB is operating or Inter-City link wagering is available.
The changes made to the award pursuant to the Award Review under section 19(6) of the
Industrial Relations Act 1996 and Principle 26 of the Principles for Review of Awards made
by the Industrial Relations Commission of New South Wales on 28 April 1999 (310 I.G. 359)
take effect on and from 23 April 2004.This award remains in force until varied or rescinded, the period for which it was made already having expired.
Industries and Callings
All persons engaged within the Classification Structure contained in Clause 3 of this Award, including but not limited to all persons engaged in or in connection with the operation of automatic totalisators within the State, excepting electricians, engineers, watchmen, caretakers and cleaners.”
[20] Other clauses in the RT Award refer to the “Union” but the RT Award does not define the “Union”. However, the ASU submits that the New South Wales Local Government, Clerical, Administrative, Energy, Airlines and Utilities Union, industrial organisation of employees (USU) was involved in maintaining the RT Award and the reference to the “Union” in the RT Award is a reference to the USU. We accept this submission.
[21] With respect to coverage, clause 1 of the Phonetab Award provides as follows:
“1. The Award This Award shall be known as the TAB Clerical and Administrative Staff PhoneTAB Operators Award 2004. It varies the TAB Clerical and Administrative Staff PhoneTAB Operators Award 2002, published 20 September 2002 (336 I.G. 405). The Award applies to all staff employed by TAB Limited as PhoneTAB Operators.”
[22] “The Parties” clause of the Phonetab Award is as follows:
“2. The Parties This Award has been made between TAB Limited and the New South Wales Local
Government, Clerical Administrative, Energy, Airlines and Utilities Union.”
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[23] The “Area, Incidence and Duration” clause of the Phonetab Award is as follows:
“27. Area, Incidence and Duration This Award shall be apply to all casual staff employed by TAB Limited as PhoneTAB
Operators.It shall apply to casual staff employed to answer customer telephone calls in a section of TAB
Limited known as PhoneTAB.This variation shall take effect from 1 July 2004 and will expire on 30 June 2006.”
[24] Other clauses in the Phonetab Award refer to the “Union” and the Phonetab Award
defines the “Union” as the “New South Wales Local Government, Clerical Administrative,
Energy, Airlines and Utilities Union”. We take that to be a reference to the USU.
[25] The USU is an organisation registered under the Industrial Relations Act 1996 (NSW) (NSW IR Act), was a transitionally registered association under Schedule 10 of the
Workplace Relations Act 1996 (Cth) (WR Act) and became a transitionally recognised
association for the purposes of the Fair Work (Registered Organisations) Act 2009 (Cth) (RO Act) pursuant to item 627 of schedule 22 of the TPCA Act. The USU and the ASU are not the same entity.
[26] Neither the provisions of item 3 of schedule 3 of the TPCA Act nor the granting on 4 September 2014 of an ASU application made pursuant to s.158A of the RO Act, to alter its eligibility rules to extend them to apply to persons within the eligibility rules of the USU, result in the ASU being covered by the RT Award or the Phonetab Award at the relevant time.
[27] Accordingly, we are not satisfied that at the time the ASU made the applications before us in respect of the RT Award and the Phonetab Award or before 31 December 2013, the ASU was covered by the RT Award or the Phonetab Award. The applications before us in respect of the RT Award and the Phonetab Award, therefore, were not made by a person covered by those enterprise instruments.
[28] Before us it was submitted that if we were not satisfied that at the relevant time the ASU was covered by the RT Award or the Phonetab Award then we should allow the amendment of the applications made pursuant to item 4 of schedule 6 of the TPCA Act so that they are regarded as having being made by the authorised officer of the USU or the USU.
[29] In support of such an amendment it was submitted an officer of the USU has given evidence in support of the substantive merits of the applications and there is no prejudice to the relevant employers as they have made their case as to the substantive merits of the applications. Further, it was submitted that without such an amendment there would be prejudice to those who would lose their opportunity to have modern enterprise awards made to replace the RT Award and the Phonetab Award due to the operation of item 9(4) of schedule 6 of the TPCA Act. In addition, the ASU submitted that they considered that the ASU making the applications rather than another person was the most prudent course.
[30] We are not persuaded we should exercise the discretion available to us under s.586 of
the FW Act to amend the applications before us in respect of the RT Award and the Phonetab
Award.
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[31] Item 4(3) of schedule 6 of the TPCA Act provides a beginning and end period for the making of applications for the making of modern enterprise awards. Pursuant to item 10 of schedule 6 of the TPCA Act, at least six months before that end period the FWC advised persons still covered by an enterprise instrument that the period for making such an application ended on 31 December 2013 and of the consequences for the enterprise instrument if no such application was made.
[32] There was, therefore, ample warning about the importance of making a valid application in accordance with item 4(3) of schedule 6 of the TPCA Act and ample opportunity to do so. The ASU submissions that the most prudent course was for them rather than another person to make the applications are unconvincing. There is nothing in the TPCA Act to have prevented applications being made by the ASU and applications being made by other persons within time.
[33] In the circumstances, the submissions made in support of us exercising our discretion
to amend the applications in matters EM2013/102 and EM2013/104 are not sufficient to
persuade us to do so.
[34] Since the applications before us in respect of the RT Award and the Phonetab Award were not made by a person covered by those enterprise instruments at the relevant time in accordance with item 4(3) of schedule 6 of the TPCA and we are not prepared to exercise our discretion to amend them so that they conform with item 4(3) of schedule 6, the applications in matters EM2013/102 and EM2013/104 are not valid applications and we dismiss them. We order accordingly.
[35] We are satisfied the application in EM2013/105, which was made by the ASU, was made in accordance with item 4(3) of schedule 6 of the TPCA Act. The “Parties bound” clause of the Wagering Award specifically provides that the Wagering Award binds the ASU and the application in EM2013/105 was made on 24 December 2013.
Substantive merits of EM2013/105
[36] We turn then to consider the substantive merits of the application in EM2013/105 and in doing so consider the other matters in item 4 of schedule 6 of the TPCA Act.
| (a) | The circumstances that led to the making of an enterprise instrument rather than an instrument of more general application (Item 4(5)(a)) |
[37] The Wagering Award resulted from the Australian Industrial Relations Commission (AIRC) award simplification review of the TABCORP On-Course Totalizator Employees
Interim Award 19947 and the Totalizator Agency Board of Victoria Off Course Totalizator
Employees Award 19938.
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| (b) | Whether there is a modern award (other than the miscellaneous 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)) |
[38] The ASU’s “primary submission is that there are no such readily identifiable modern awards under sub-items 4(5)(b), (c) and (f)”.9 Alternatively, the ASU submitted the Clerks—
Private Sector Award 201010 (Clerks Award) or the Banking, Finance and Insurance Award
201011 (Banking Award) covers the persons covered by the Wagering Award.
[39] THL submitted the General Retail Industry Award 201012 (Retail Award) covers the
persons covered by the Wagering Award.
[40] The “Parties bound” clause of the Wagering Award is as follows:
“6. PARTIES BOUND This award shall be binding on:
6.1 The Australian Municipal, Administrative, Clerical and Services Union (ASU); 6.2
TABCORP Holdings Ltd in respect to the occupation of a person or persons employed in or in connection with the operation of a totalizator throughout the State of Victoria including, but not limited to:
6.2.1 on a racecourse in connection with a race meeting; 6.2.2 on a ground in connection with dog racing,
other than persons employed in the mechanical maintenance of such totalizator.
6.3 Employees as described in clause 4 - Coverage of award.” [41] The “Coverage of award” clause of the Wagering Award is as follows:
“4. COVERAGE OF AWARD This award will apply to all employees employed by TABCORP Holdings Ltd as outlined below:
4.1 Clerical employees engaged to normally work five days per week between Monday
and Saturday inclusive in Head Office Administration Business Group.4.2 Clerical employees engaged to normally work five days per week between Monday
and Saturday inclusive, in the Operations and Data Processing divisions.4.3 Casuals employed as branch clerks, Account Sales Operators and head office clerks. 4.4 Employees employed on course in or in connection with the operation of a totalizator
throughout the State of Victoria.”
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[42] Clause 16 of the Wagering Award sets out the wage rates.
[43] Clause 16.1 concerns wage rates applicable to on-course employees and sets out wage rates for the classifications of “Senior Admin. Officer, Officer, Clerk Local, Clerical Assistant”. The clause also refers to a “Clerk … engaged as Assistant Banker”, “Senior Officer … engaged as Race Day Control Supervisor”, and “clerk engaged as a Terminal Operator”.
[44] Clause 16.2 concerns rates payable in the case of a postponement or abandonment of a
meeting and refers to “senior office (administration supervisor)” and “all other officers and
senior clerks (including administration clerks and VDU operators) and RDC supervisors”.
[45] Clause 16.3 concerns wage rates applicable to administration clerks and indicates that they are “Clerical employees engaged to normally work five days per week Monday and Saturday inclusive in Head Office Administration Business Group.” Clause 16.3 then lists the nature of those clerical employees under four grades as follows:
“ Grade 1 Grade 2 Grade 3 Grade 4 Records assistant Payroll officer Records Projects officer supervisor Records clerk Supply officer Budget officer Audit clerk Reconciliation clerk Statistical analyst Stock records clerk Creditors Control officer Race day clerk Claims officer Stenographer Transport supervisor Accounting machinist Administration Assistant – operations Switchboard operator Asset register clerk Typist clerk Debtors control officer Cost clerk Stock control officer Payroll clerk Photocopy clerk Clerk – general Liaison officer Data control clerk
Fault control clerk ”
[46] Clause 16.4 concerns wage rates payable to data processing and operations clerks and indicates that they are “Clerical employees engaged to normally work five days per week between Monday and Saturday inclusive, in the Operations and Data Processing Divisions.” Clause 16.4 then lists the nature of those clerical employees under grades 2 to 4 as follows:
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“ Grade 2 Grade 3 Grade 4 Trainee computer operator Senior supervisor race day Senior computer operator Operations supervisor Operations computer operator Data control supervisor Fault control supervisor Operations clerk Computer assistant *Race day co-ordinator * Proceeds to grade 3, Year 5 only”
[47] Clause 16.5 concerns wages payable to casual clerks and indicates that they are “Branch clerks, Account Sales operators and head office clerks”.
[48] Appendix A to the Wagering Award contains “Provisions specific to employees
employed on-course” and contains a classification structure. Appendix A in respect of the
classification structure is as follows:
“APPENDIX A - PROVISIONS SPECIFIC TO EMPLOYEES EMPLOYED ON-
COURSE
This Appendix is to be read in conjunction with the provisions in the award proper. If there is any inconsistency between the award and this Appendix, this Appendix applies to the extent of the inconsistency.
1. CLASSIFICATION STRUCTURE
1.1 Clerical assistant (replaces runner/money counter) 1.1.1 Summary of duties
Responsible to supervisor for duties of a routine nature at the base grade clerical
level. Works under direct supervision. Decisions are of a routine operating or clerical nature within defined procedures
for guidance. No opportunity to influence others, and no responsibility for supervising other
employees. Incumbent will often be a trainee to the clerical level. Limited accountability and responsibility. 1.1.2 Specific tasks Assist in day-to-day basic chores as required or engaged in related wagering activities. May undertake basic duties such as posting race day information, other promotional material.
Maintaining tidiness of the physical environment. Delivery and messenger work. Money counting.
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May take bets from the general public in a training session under direct
supervision.
1.1.3 Previous experience and training
No previous work related experience or knowledge required. No prior training required. 1.2 Clerk (replaces sell/pay terminal operator/assistant banker) 1.2.1 Summary of duties Works under general supervision on general clerical duties.
Decisions are routine and involve clearly defined choices supported by precedent. Difficult, complex or unusual matters are usually referred to a more senior
authority.
Limited in job contact outside of own department, not involved in problem solving, influence on others is limited.
Works within established routines, methods and procedures. Does not provide any training or supervision of others. Responsible and accountable for work performed.
1.2.2 Specific tasks
Sells bets to the general public or engaged in related wagering activities. Performs general office work which includes, but is not limited to the following
duties:
telephonist; reception/enquiries; data entry; client and/or public contact; cash reconciliation and control; other clerical duties of a general nature; Notwithstanding the above, an employee at this level may be required to perform any or all of the duties of lower paid classifications.
1.2.3 Previous experience and training Previous in-house training and experience would be desirable. 1.3 Senior clerk (replaces VDU operator (control), house banker, administration
clerk)1.3.1 Summary of duties
Under general supervision, provides a skilled service requiring clerical or
secretarial experience or training. Responsible for limited supervision and guidance within clearly defined guidelines of a small group of employees who are engaged in routine duties.
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Decisions are generally routine and involve choices supported by precedent. Difficult, complex or unusual matters are usually referred to a more senior
authority. May recommend decisions on day-to-day matters.
May participate with own section staff, assisting in solving operational problems from within established precedents, but job contact usually limited to own section.
Responsible and accountable for work performed. May perform semi-specialist function or specialist duties at a trainee level. May provide a leading hand role to clerks or clerical assistants.
1.3.2 Specific tasks
May provide a semi-specialist function or specialist duties at a trainee level. Assists officers and senior officers as required. Performs specialist clerical office work which includes but is not limited to the
following duties:
accounting duties; race day control data entry and general race day control functions; banking duties assigned to particular identified selling areas.
Notwithstanding the above, an employee at this level may be required to perform any or all of the duties of a lower paid classification.
1.3.3 Previous experience and training
Possesses extended clerical experience which would not normally be obtained
without a minimum of two or three years on the job. Responsibilities require the application of basic trade, technical or clerical skills
which require some previous training and work experience.1.4 Officer (replaces house supervisor, banker/supervisor) 1.4.1 Summary of duties
1.4.1(a)
Under general supervision, in charge of an operational unit and responsible for its operations on a day-to-day basis, or under general supervision provides a specialist or technical service requiring specialised or sub-professional training and/or equivalent experience.
1.4.1(b)
Performs a team leader or foreman's role within the unit. Decisions relate to day-to-day matters and to the achievement of pre-determined objectives. Has freedom of action within operational limits. Participates with other section staff in solving operational problems and has regular contact with other sections on routine matters to furnish or obtain information. Responds to or contacts clients to achieve delivery of service or to solve routine operational problems of a non-technical nature.
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1.4.1(c)
Decisions would have some impact on productivity of the enterprise. For example, temporary reduction in services, a serious complaint from client, temporary increase in workload for the group.
1.4.2 Specific tasks
Performs supervisory duties, co-ordinates duties of sub-ordinates or engaged in
related wagering activities. Supervisor of an operational unit, or a specialist officer within those units. May provide in-house training to own staff. Plans own work schedule within
routine operational guidelines. Duties may include, but are not limited to senior accounting functions and
computer operations.Notwithstanding the above, an employee at this level may be required to perform any or all of the duties of a lower paid classification.
1.4.3 Previous experience and training
Substantial practical experience or advanced training would normally be required. Requires knowledge of own section and relationship to other sections. In-house and external training could be provided to supplement existing
experience and training.1.5 Senior officer (replaces administration supervisor, race day control supervisor) 1.5.1 Summary of duties
Under limited supervision, in charge of a number of operational units on a day-to-
day basis, or providing a senior specialist role in a business discipline.
Responsible for planning and controlling a number of activities to achieve objectives which are limited in scope or providing a technical service which assists a manager achieve objectives which are broad in scope.
Recommends on operating decisions which call for considered judgement and
original thinking that will have a noticeable effect on the organisation.
Participates with employees in other departments on operational or procedural issues e.g. to gather or provide information and implement club policies as directed or authorised.
Overall performance or errors in judgement may have a noticeable effect on the results achieved by a department but would be unlikely to have any impact on the results of the organisation as a whole, because at this level errors are recoverable.
Not responsible for medium to long term planning or budget control. Matters
relating to disciplinary action of staff are referred to the manager for direction.
May recommend on the application of analytical or technical skills of a specialised nature, but limits are placed on the degree of originality which can be implemented without reference.
Is aware of emergency procedures and capable of implementing these effectively. Has a working knowledge of Totalizator Regulations On-Course. Noticeable in this context includes an increase in the number of complaints from clients, a reduction in services, lengthy overtime worked in a group, or comment
made at director level.
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1.5.2 Specific tasks
In charge of a number of operational units on a day-to-day basis or specialising in
a senior capacity within those units or engaged in related wagering activities. Responsible for controlling own work and the work of others being supervised,
and reports progress to superior daily. Duties may include senior level and computer operations or senior specialist in a
business discipline.Notwithstanding the above, an employee at this level may be required to perform any or all of the duties of a lower paid classification.
1.5.3 Previous experience and training
Thorough practical experience or advanced training would be necessary. Requires demonstrated knowledge of a number of operational units and their
relationship to the rest of the organisation. In-house and external training would be provided to supplement existing
experience and training. Knowledge and experience base would not normally be obtained without a
minimum of five years on-the-job training.”[49] The Clerks Award has a “Coverage” clause as follows:
“4. Coverage 4.1
This award covers employers in the private sector throughout Australia with respect to their employees engaged wholly or principally in clerical work, including administrative duties of a clerical nature, and to those employees. However, the award does not cover:
(a)
an employer bound by a modern award that contains clerical classifications; or
(b) an employee excluded from award coverage by the Act. 4.2
The award does not cover employees who are covered by a modern enterprise award, or an enterprise instrument (within the meaning of the Fair Work (Transitional
Provisions and Consequential Amendments) Act 2009 (Cth)), or employers in relation to those employees. 4.3
The award does not cover employees who are covered by a State reference public sector modern award, or a State reference public sector transitional award (within the meaning of the Fair Work (Transitional Provisions and Consequential Amendments)
Act 2009 (Cth)), or employers in relation to those employees. 4.4
This award covers any employer which supplies on-hire employees in classifications set out in Schedule B—Classification and those on-hire employees, if the employer is not covered by another modern award containing a classification which is more appropriate to the work performed by the employee. This subclause operates subject to the exclusions from coverage in this award.
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4.5
This award covers employers which provide group training services for trainees engaged in any of the occupations set out at Schedule B—Classifications and those trainees engaged by a group training service hosted by a company to perform work at a location where the activities described herein are being performed. This subclause operates subject to the exclusions from coverage in this award.
4.6
Without limiting the generality of the foregoing this award does not cover employers covered by the following industry awards with respect to employees covered by the awards:
the Aged Care Award 2010; the Airline Operations—Ground Staff Award 2010; the Airport Employees Award 2010; the Alpine Resorts Award 2010; the Animal Care and Veterinary Services Award 2010; the Banking, Finance and Insurance Award 2010; the Black Coal Mining Industry Award 2010; the Business Equipment Award 2010; the Contract Call Centres Award 2010; the Educational Services (Post-Secondary Education) Award 2010; the Educational Services (Schools) General Staff Award 2010; the Fitness Industry Award 2010; the General Retail Industry Award 2010; the Health Professionals and Support Services Award 2010; the Higher Education Industry—General Staff—Award 2010; the Hospitality Industry (General) Award 2010; the Legal Services Award 2010; the Market and Social Research Award 2010; the Rail Industry Award 2010; the Restaurant Industry Award 2010; the Sporting Organisations Award 2010; or the Telecommunications Services Award 2010. 4.7
Where an employer is covered by more than one award, an employee of that employer is covered by the award classification which is most appropriate to the work performed by the employee and to the environment in which the employee normally performs the work.”
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[50] “Clerical work” is defined in clause 3.1 of the Clerks Award as follows:
“clerical work includes recording, typing, calculating, invoicing, billing, charging, checking, receiving and answering calls, cash handling, operating a telephone switchboard and attending a reception desk”.
[51] In making the Clerks Award, a Full Bench of the AIRC stated:
“[220]
In our earlier statements and decisions we indicated that within a system of modern awards there is an important role for an occupational award covering clerical employees in the private sector. That was part of our consideration in establishing the private sector clerical occupation as a priority area of employment in the award modernisation process. We have also emphasised that the WR Act and the consolidated request give priority to industry awards and one objective of award modernisation is to limit the number of awards applying to a particular employer. For these reasons we indicated that in order to give effect to the objectives of award modernisation, when each industry is considered, it will be necessary to consider all classes of award covered employees in that industry and the extent to which it is appropriate to have those employees covered by an award with industry-wide application.
[221] The Australian Services Union (ASU), supported by some employer groups, sought the establishment of a general presumption in favour of coverage by the Clerks—Private Sector Award 2010 (the Clerks private sector award) for all employees currently covered by a general clerical occupational award or NAPSA. We do not consider that it is appropriate to establish a presumption of this type. It is clear that the Clerks private sector award will have very significant application. However it will not cover all clerical employees in the private sector.
[222] In the priority industries dealt with in the first stage of award modernisation there are five other awards which contain clerical classifications. The Clerks private sector award will not apply to employers covered by those awards with respect to employees covered by those awards. We have identified these awards in the coverage clause of the Clerks private sector award in order to provide clarification as to the scope of the award. As other awards with clerical classifications are made throughout the process we propose to add these to the list in cl.4.3. When each other industry is dealt with the position of clerical employees will be considered. A relevant consideration will obviously be the extent and nature of award-covered employees in the industry. The Clerks private sector award will apply to all private sector clerical employees not covered by an industry award.
[223] The making of the Clerks private sector award will provide assistance in determining the appropriate coverage for clerical employees in other industries, and to the extent it is appropriate to have clerical classifications in an industry award, provide guidance for appropriate clerical terms and conditions.
[224] The ASU contended that the legal services industry required consideration under a separate industry award and that special provisions of one sort or another are appropriate for the cash processing and wagering industries. We agree that the legal services industry should be considered as a separate industry and will do so in Stage 4.
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At this stage we have not excluded cash processing or wagering from the Clerks
private sector award. We have included a definition of clerical work to make it clear that it is a term of broad application and includes cash processing. Clerks involved in wagering also fall within the scope of the award.
[225] As other industries are considered as part of the award modernisation process, it may be appropriate to expressly acknowledge the coverage of clerks in a particular industry by the Clerks private sector award and consider amendments to the award to properly achieve the objectives of award modernisation. Alternatively it may be appropriate to include clerical classifications within the industry award.
[226] Extensive submissions were made about the content of the exposure draft for this award. The ASU identified a number of areas of disadvantage for current and future employees. Employers identified a number of areas which they contended limited existing flexibilities and increased costs for employers. Particular submissions were made in support of the classification structure, hours, and flexibilities contained in the NSW clerical NAPSA especially given the very large proportion of clerical employees covered by that instrument.
[227] The approach we have adopted is to have regard to the range of existing
provisions, acknowledging that there will be some positive and negative changes for both employers and employees. Further, it is appropriate to consider the overall package of award minimum obligations in assessing the impact.
[228] A number of changes to the exposure draft have been made as a result of these considerations. We have decided to include an exemption provision in line with the NSW NAPSA clause in recognition of the longstanding and widespread use of the concept in federal clerical awards and in NAPSAs.
[229] We have rationalised the allowances and made other general changes for
reasons explained in the main body of this decision but made few other changes to the classifications, wages and conditions contained in the exposure draft. We consider that the classifications properly reflect work value and existing award classification structures.
[230] The hours provisions published in the exposure draft have been modified
slightly. We do not intend to remove the facility for ordinary hours on Saturday morning, as sought by the ASU, or extend ordinary hours to Saturday afternoon as sought by some employers. We will however provide for a penalty of time and a quarter for ordinary hours worked on Saturday. The clause also provides that the ordinary hours which apply to the majority of employees at the workplace under another modern award will apply.
[231] We confirm our view that a case has not been made out for an annualised
salaries or a salary packaging clause. As we have indicated above we have decided to include an exemption rate in the award. We note the availability of annualised salary and salary packaging either as part of the contract of employment, other agreements, or with respect to overaward benefits.”13 [Underlining added]
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[52] The Retail Award has a “Coverage” clause is as follows:
“4. Coverage 4.1
This industry award covers employers throughout Australia in the general retail industry and their employees in the classifications listed in clause 16—Classifications to the exclusion of any other modern award. The award does not cover employers covered by the following awards:
the Fast Food Industry Award 2010; the Meat Industry Award 2010; the Hair and Beauty Industry Award 2010; or the Pharmacy Industry Award 2010. 4.2 The award does not cover an employee excluded from award coverage by the Act. 4.3
The award does not cover employees who are covered by a modern enterprise award, or an enterprise instrument (within the meaning of the Fair Work (Transitional
Provisions and Consequential Amendments) Act 2009 (Cth)), or employers in relation to those employees. 4.4
The award does not cover employees who are covered by a State reference public sector modern award, or a State reference public sector transitional award (within the meaning of the Fair Work (Transitional Provisions and Consequential Amendments)
Act 2009 (Cth)), or employers in relation to those employees. 4.5
This award covers any employer which supplies labour on an on-hire basis in the industry set out in clause 4.1 in respect of on-hire employees in classifications covered by this award, and those on-hire employees, while engaged in the performance of work for a business in that industry. This subclause operates subject to the exclusions from coverage in this award.
4.6
This award covers employers which provide group training services for apprentices and/or trainees engaged in the industry and/or parts of industry set out at clause 4.1 and those apprentices and/or trainees engaged by a group training service hosted by a company to perform work at a location where the activities described herein are being performed. This subclause operates subject to the exclusions from coverage in this award.
4.7
Where an employer is covered by more than one award, an employee of that employer is covered by the award classification which is most appropriate to the work performed by the employee and to the environment in which the employee normally performs the work.
NOTE: Where there is no classification for a particular employee in this award it is possible that the employer and that employee are covered by an award with occupational coverage.”
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[53] The “general retail industry” is defined in clause 3.1 of the Retail Award as follows:
“general retail industry means the sale or hire of goods or services to final consumers for
personal, household or business consumption including:
food retailing, supermarkets, grocery stores; department stores, clothing and soft goods retailing; furniture, houseware and appliance retailing; recreational goods retailing; personal and household goods retailing; household equipment repair services; bakery shops, where the predominant activity is baking products for sale on the
premises;and includes:
customer information and assistance provided by shopping centres or retail complexes; labour hire employees engaged to perform work otherwise covered by this award; and newspaper delivery drivers employed by a newsagent, but does not include:
community pharmacies; pharmacies in hospitals and institutions providing an in-patient service; hair and beauty establishments; hair and beauty work undertaken in the theatrical, amusement and entertainment
industries; stand-alone butcher shops; stand-alone nurseries; retail activities conducted from a manufacturing or processing establishment other than
seafood processing establishment; clerical functions performed away from the retail establishment; warehousing and distribution; motor vehicle retailing and motor vehicle fuel and parts retailing; fast food operations; restaurants, cafes, hotels and motels; or building, construction, installation, repair and maintenance contractors engaged to
perform work at a retail establishment.”
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[54] Clause 16 concerning “Classifications” in the Retail Award is as follows:
“16. Classifications 16.1 All employees covered by this award must be classified according to the structure set out in Schedule B—Classifications. Employers must advise their employees in writing of their classification and of any changes to their classification. 16.2 The classification by the employer must be according to the skill level or levels required to be exercised by the employee in order to carry out the principal functions of the employment as determined by the employer.” [55] “Schedule B—Classifications” of the Retail Award provides the following:
“Schedule B—Classifications
B.1 Retail Employee Level 1 B.1.1 An employee performing one or more of the following functions at a retail
establishment:
the receiving and preparation for sale and or display of goods in or about any
shop; the pre-packing or packing, weighing, assembling, pricing or preparing of goods
or provisions or produce for sale; the display, shelf filling, replenishing or any other method of exposure or
presentation for sale of goods; the sale or hire of goods by any means; the receiving, arranging or making payment by any means; the recording by any means of a sale or sales; the wrapping or packing of goods for despatch and the despatch of goods; the delivery of goods; window dressing and merchandising; loss prevention; demonstration of goods for sale; the provision of information, advice and assistance to customers; the receipt, preparation, packing of goods for repair or replacement and the minor
repair of goods; all directly employed persons engaged in retail stores in cleaning, store greeting,
security, lift attending, store cafeterias and food services; Clerical Assistants functions Level 1; or work which is incidental to or in connection with any of the above.
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B.1.2 Retail Employees will undertake duties as directed within the limits of their
competence, skills and training including incidental cleaning. The cleaning of toilets is
not incidental cleaning except in the case of a take away food establishment.
B.1.3 Indicative job titles which are usually within the definition of a Retail Employee
Level 1 are:
Shop Assistant, Clerical Assistant, Check-out Operator, Store Worker, Reserve Stock Hand, Driver, Boot/Shoe Repairer (Not Qualified), Window Dresser (Not Qualified), LPO, Photographic Employee, Store Greeter, Assembler, Ticket Writer (Not Qualified), Trolley Collector, Video Hire Worker, Telephone Order Salesperson, Door-to-door Salesperson, or Retail Outdoor Salesperson, and, Demonstrator and/or Merchandiser not elsewhere classified (including a Demonstrator and/or Merchandiser who is not a direct employee of the retailer). B.1.4 Clerical Assistant means an employee accountable for clerical and office tasks as directed within the skill levels set out. B.1.5 Employees at this level may include the initial recruit who may have limited relevant experience. Initially work is performed under close direction using established practices, procedures and instructions. B.1.6 Such employees perform routine clerical and office functions requiring an understanding of clear, straightforward rules or procedures and may be required to operate certain office equipment. Problems can usually be solved by reference to established practices, procedures and instructions.
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B.1.7
Employees at this level are responsible and accountable for their own work within established routines, methods and procedures and the less experienced employee’s work may be subject to checking at all stages. The more experienced employee may be required to give assistance to less experienced employees in the same classification.
B.1.8 Indicative typical duties and skills at this level may include:
reception/switchboard, e.g. directing telephone callers to appropriate staff, issuing and receiving standard forms, relaying internal information and initial greeting of visitors;
maintenance of basic records; filing, collating, photocopying etc; handling or distributing mail including messenger service; recording, matching, checking and batching of accounts, invoices, orders, store
requisitions etc; or the operation of keyboard and other allied equipment in order to achieve
competency as prescribed in Level 2.
B.2 Retail Employee Level 2 B.2.1 An employee performing work at a retail establishment at a higher skill level than a
Retail Employee Level 1.B.2.2 Indicative job titles which are usually within the definition of a Retail Employee Level
2 include:
Forklift Operator, Ride on Equipment Operator. B.3 Retail Employee Level 3 B.3.1 An employee performing work at a retail establishment at a higher level than a Retail
Employee Level 2.B.3.2 Indicative of the tasks which might be required at this level are the following:
Supervisory assistance to a designated section manager or team leader, Opening and closing of premises and associated security, Security of cash, or Fitting of surgical corset.
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B.3.3 Indicative job titles which are usually within the definition of a Retail Employee 3
include:
Machine operators, 2IC to Dept Manager, Senior Salesperson, Corsetiere, Driver Selling Stock, Cook (Not Qualified) in a cafeteria, Senior LPO, including an armed LPO, LPO Supervisor, Designated second-in-charge of a section (i.e. senior sales assistant), Designated second-in-charge to a service supervisor, or Person employed alone, with responsibilities for the security and general running
of a shop.B.4 Retail Employee Level 4 B.4.1 An employee performing work at a retail establishment at a higher level than a Retail
Employee Level 3.B.4.2 Indicative of the tasks which might be required at this level are the following:
Management of a defined section/department, Supervision of up to 4 sales staff (including self), Stock control, Buying/ordering requiring the exercise of discretion as to price, quantity, quality
etc., An employee who is required to utilise the skills of a trades qualification for the
majority of the time in a week, or Clerical functions Level 2. B.4.3 Indicative job titles which are usually within the definition of a Retail Employee 4
include:
Assistant, Deputy, or 2IC Shop Manager of a shop without Departments,
An employee who is required to utilise the skills of a trades qualified person for the majority of the time in a week. This includes: Butcher, Baker, Pastry Cook, Florist,
An employee who has completed an appropriate trades course or holds an
appropriate Certificate III and is required to use their qualifications in the course
of their work,
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A Qualified Auto Parts and Accessories Salesperson, A Window Dresser (Cert III or equivalent experience), A Boot/Shoe Repairer (Cert III), A Shiftwork Supervisor, Section/Department manager with up to 2 employees (including self), Service Supervisor of up to 15 employees, Nightfill Supervisor/Leader,
B.4.4 Clerical Officer Level 2 characteristics:
This level caters for the employees who have had sufficient experience and/or
training to enable them to carry out their assigned duties under general direction. Employees at this level are responsible and accountable for their own work which is performed within established guidelines. In some situations detailed instructions may be necessary. This may require the employee to exercise limited judgment and initiative within the range of their skills and knowledge. The work of these employees may be subject to final checking and as required progress checking. Such employees may be required to check the work and/or provide guidance to other employees at a lower level and/or provide assistance to less experienced employees at the same level. B.4.5 Indicative typical duties and skills at this level may include:
Reception/switchboard duties as in Level 1 and in addition responding to enquiries as appropriate, consistent with the acquired knowledge of the organisation’s operations and services, and/or where presentation and use of interpersonal skills are a key aspect of the position. Operation of computerised radio/telephone equipment, micro personal computer, printing devices attached to personal computer, dictaphone equipment, typewriter. Word processing, e.g. the use of a word processing software package to create, format, edit, correct, print and save text documents, e.g. standard correspondence and business documents. Stenographer/person solely employed to take shorthand and to transcribe by
means of appropriate keyboard equipment. Copy typing and audio typing. Maintenance of records and/or journals including initial processing and recording
relating to the following:(i) reconciliation of accounts to balance;
(ii) incoming/outgoing cheques;
(iii) invoices;
(iv) debit/credit items;
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(v) payroll data;
(vi) petty cash Imprest System;
(vii) letters etc.
Computer application involving use of a software package which may include
one or more of the following functions:(i) create new files and records;
(ii) spreadsheet/worksheet;
(iii) graphics;
(iv) accounting/payroll file;
(v) following standard procedures and using existing models/fields of information.
Arrange routine travel bookings and itineraries, make appointments. Provide general advice and information on the organisation’s products and
services, e.g. front counter/telephone.
B.5 Retail Employee Level 5 B.5.1 An employee performing work in or in connection with a retail establishment at a
higher level than a Retail Employee Level 4.B.5.2 Indicative job titles which are usually within the definition of a Retail Employee 5
include:
A tradesperson in charge of other tradespersons within a section or department, Service Supervisor (more than 15 employees). B.6 Retail Employee Level 6 B.6.1 An employee performing work in or in connection with a retail establishment at a
higher level than a Retail Employee Level 5.B.6.2 Indicative job titles which are usually within the definition of a Retail Employee 6
include:
Section/Department manager with 5 or more employees (including self), Manager/Duty Manager in a shop without Departments/Sections (may be
under direction of person not exclusively involved in shop management), Assistant or Deputy or 2IC Shop Manager of a shop with Departments/Sections, Clerical Officer Level 3. [2014] FWCFB 7989
B.6.3 Clerical Officer Level 3 characteristics:
Employees at this level have achieved a standard to be able to perform specialised or non-routine tasks or features of the work. Employees require only general guidance or direction and there is scope for the exercise of limited initiative, discretion and judgment in carrying out their assigned duties.
Such employees may be required to give assistance and/or guidance (including guidance in relation to quality of work and which may require some allocation of duties) to employees in Levels 1 and 2 and would be able to train such employees by means of personal instruction and demonstration.
B.6.4 Indicative typical duties and skills at this level may include:
Prepare cash payment summaries, banking report and bank statements; calculate and maintain wage and salary records; follow credit referral procedures; apply purchasing and inventory control requirements; post journals to ledger. Provide specialised advice and information on the organisation’s products and services; respond to client/public/supplier problems within own functional area utilising a high degree of interpersonal skills. *Apply one or more computer software packages developed for a micro personal
computer or a central computer resource to either/or:(i) create new files and records;
(ii) maintain computer based records management systems;
(iii) identify and extract information from internal and external sources;
(iv) use of advanced word processing/keyboard functions.
Arrange travel bookings and itineraries; make appointments; screen telephone calls; respond to invitations; organise internal meetings on behalf of executive(s); establish and maintain reference lists/personal contact systems for executive(s).
Application of specialist terminology/processes in professional offices. *NOTE: These typical duties/skills may be either at Level 3 or Level 4 dependent
upon the characteristics of that particular Level.
B.7 Retail Employee Level 7 B.7.1 An employee performing work in or in connection with a retail establishment at a
higher level than a Retail Employee Level 6.B.7.2 Indicative job titles which are usually within the definition of a Retail Employee
Level 7 include:
Visual Merchandiser (diploma), Clerical Officer Level 4.
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B.7.3 Clerical Officer Level 4 characteristics:
Employees at this level will have achieved a level of organisation or industry specific knowledge sufficient for them to give advice and/or information to the organisation and clients in relation to specific areas of their responsibility. They would require only limited guidance or direction and would normally report to more senior staff as required. Whilst not a pre-requisite, a principal feature of this level is supervision of employees in lower levels in terms of responsibility for the allocation of duties, co-ordinating work flow, checking progress, quality of work and resolving problems. They exercise initiative, discretion and judgment at times in the performance of
their duties. They are able to train employees in Clerical Levels 1–3 by personal instruction
and demonstration.B.7.4 Indicative typical duties and skills at this level may include:
Secretarial/Executive support services which may include the following: maintain executive diary; attend executive/organisational meetings and take minutes; establish and/or maintain current working and personal filing systems for executive; answer executive correspondence from verbal or handwritten instructions. Able to prepare financial/tax schedules, calculate costings and/or wage and salary requirements; complete personnel/payroll data for authorisation; reconciliation of accounts to balance. Advise on/provide information on one or more of the following: (i) employment conditions
(ii) workers compensation procedures and regulations
(iii) superannuation entitlements, procedures and regulations
*Apply one or more computer software packages, developed for a micro personal
computer or a central computer resource to either/or:(i) create new files and records;
(ii) maintain computer based management systems;
(iii) identify and extract information from internal and external sources;
(iv) use of advanced word processing/keyboard functions.
*NOTE: These typical duties/skills may be either at Level 3 or Level 4 dependent
upon the characteristics of that particular Level.
B.8 Retail Employee Level 8 B.8.1 An employee performing work in or in connection with a retail establishment at a
higher level than a Retail Employee Level 7.[2014] FWCFB 7989
B.8.2 A person with a Diploma qualification. B.8.3 Indicative job titles which are usually within the definition of a Retail Employee 8
include:
A Shop Manager of a shop with Departments/Sections, or Clerical Officer Level 5.
B.8.4. Clerical Officer Level 5 characteristics:
Employees at this level are subject to broad guidance or direction and would
report to more senior staff as required. Such employees will typically have worked or studied in a relevant field and will have achieved a standard of relevant and/or specialist knowledge and experience sufficient to enable them to advise on a range of activities and features and contribute, as required, to the determination of objectives, within the relevant field(s) of their expertise. They are responsible and accountable for their own work and may have delegated responsibility for the work under their control or supervision, in terms of, among other things, scheduling workloads, resolving operations problems, monitoring the quality of work produced as well as counselling staff for performance as well as work related matters. They would also be able to train and to supervise employees in lower levels by means of personal instruction and demonstration. They would also be able to assist in the delivery of training courses. They often exercise initiative, discretion and judgment in the performance of their duties. The possession of relevant post secondary qualifications may be appropriate but
not essential.B.8.5 Indicative typical duties and skills at this level may include:
Apply knowledge of organisation’s objectives, performance, projected areas of
growth, product trends and general industry conditions. Application of computer software packages within either a micropersonal computer or a central computer resource including the integration of complex word processing/desktop publishing, text and data documents. Provide reports for management in any or all of the following areas:
(i) account/financial
(ii) staffing
(iii) legislative requirements
(iv) other company activities.
Administer individual executive salary packages, travel expenses, allowances and company transport; administer salary and payroll requirements of the organisation.”
[2014] FWCFB 7989
[56] These provisions of the Retail Award have not been relevantly altered since it was made. The Retail Award was made at the same time as the Clerks Award.
[57] The Banking Award has a “Coverage” clause as follows:
“4. Coverage 4.1
This industry award covers employers throughout Australia who are engaged in the banking, finance and insurance industry in respect of work by their employees in a classification in this award and those employees to the exclusion of any other modern award.
4.2 Definition of banking, finance and insurance industry Banking, finance and insurance industry means the industries of banking, lending, loaning, providing credit, investment, finance, superannuation, all forms of insurance, credit unions, building societies, financial intermediaries, trustee creditors and agencies, money market dealers, credit or charge card institutions, wool broking, agribusiness and services to the above industries such as broking, trading, debt recovery, financial consulting, valuation, money changing, data processing, transaction accounts, telephone enquiries and transaction processing.
4.3 Exclusions This award does not cover:
(a) an employee excluded from award coverage by the Act; (b)
employees who are covered by a modern enterprise award, or an enterprise instrument (within the meaning of the Fair Work (Transitional Provisions and
Consequential Amendments) Act 2009 (Cth)), or employers in relation to
those employees;
(c) employees who are covered by a State reference public sector modern award, or a State reference public sector transitional award (within the meaning of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth)), or employers in relation to those employees; or
(d) contract call centres covered by the Contract Call Centres Award 2010.
4.4
This award covers any employer which supplies labour on an on-hire basis in the industries set out in clause 4.2 in respect of on-hire employees in classifications covered by this award, and those on-hire employees, while engaged in the performance of work for a business in those industries. This subclause operates subject to the exclusions from coverage in this award.
4.5
This award covers employers which provide group training services for trainees engaged in the industries and/or parts of industry set out at clause 4.2 and those trainees engaged by a group training service hosted by a company to perform work at a location where the activities described herein are being performed. This subclause operates subject to the exclusions from coverage in this award
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4.6 Where an employer is covered by more than one award, an employee of that employer is covered by the award classification which is most appropriate to the work performed by the employee and to the environment in which the employee normally performs the work. NOTE: Where there is no classification for a particular employee in this award it is possible that the employer and that employee are covered by an award with occupational coverage.”
[58] Schedule B to the Banking Award sets out the classification structure as follows:
“Schedule B—Classification Structure
B.1 Level 1 A Level 1 position is one in which employees work within established routines, methods and procedures that are predictable and may require the exercise of limited discretion.
Typical activities and skills may include but are not limited to:
applying basic office procedures; operating office equipment; receiving, sorting, distributing and filing correspondence and documents; performing basic manual or technical duties; performing defined data entry/inquiry tasks; and/or answering enquiries using a general knowledge of the employer’s services. Indicative job list—office trainee, filing clerk, mail sorting clerk, switchboard operator, assistant receptionist, messenger, yardhand, canteen worker, cleaner, deposit
officer, scanning officer.B.2 Level 2 A Level 2 position performs tasks and service requirements given authority within defined limits and employer established guidelines, using a more extensive range of skills and knowledge at a level higher than in Level 1.
Level 2 employees are responsible for their own work which is performed within established routines, methods and procedures.
Typical activities and skills may include but are not limited to:
processing of standard documentation; undertaking cashiering functions; answering enquiries from members and external parties using a detailed
knowledge of specific business activities; drafting correspondence appropriate to job function;
[2014] FWCFB 7989
organising own work schedule; and/or providing information/assistance to other staff members. Indicative job list—telemarketers, sales and service trainees, data processing officers,
teller/customer service representatives with less than 12 months experience, entry
level claims officer.
B.3 Level 3 A Level 3 position is one in which tasks and service requirements are performed using a more extensive range of skills and knowledge at a higher level than required in Level 2.
The position encompasses limited discretion in achieving task outcomes. A level of delegation and authority may be employed consistent with the job function and is performed predominantly within established policies and guidelines.
Those employed at this level are responsible and accountable for their own work, and may be expected to provide direction to other staff.
Typical activities and skills may include but are not limited to:
undertaking of projects; preparing reports and recommendations within their own job function; drafting of routine correspondence; administering/maintaining staff records; and/or delivery and/or co-ordination of learning and development activities. Indicative job list—receptionist, loans, processing officer, helpdesk operator, credit analyst, card services operator, contact centre officer, payroll clerk, teller or sales representative with at least 12 months experience, insurance clerk, case manager, account manager, technical officer, statistical clerk.
B.4 Level 4 A Level 4 position is one in which tasks and service requirements are performed using a more extensive range of skills and knowledge at a level higher than required at Level 3. Those employed at this level are responsible for their own work and any employees under their control.
Positions at this level require the application of relevant specialist knowledge and experience.
Those employed at this level would be required to advise on a range of activities and contribute to the determination of objectives within the required area of expertise.
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Typical activities and skills may include but are not limited to:
managing and maintaining service standards; overseeing day-to-day operations of functional areas of responsibilities; implementing and maintaining effective controls; initiating disciplinary processes; assisting with the recruitment and selection of staff; and/or preparing of reports. Indicative job list—human resource officer, learning and development officer,
compliance officer, personal assistant, assistant accountant, accounts officer, claims officer, assistant underwriter, customer relationship manager, settlement officer, collections officer, lending officer, administrative officer, personal lending relationship officer, personal banker, customer service specialist agency officer, branch services officer, senior case manager, entry level team leader, senior technical officer.
B.5 Level 5 A Level 5 position is one in which tasks, service requirements and supervisory functions are performed using a more extensive range of skills and knowledge at a higher level than required at Level 4.
The position may be:
(a)
a specialised role, possibly supported by one or two junior staff members, requiring formal qualifications and/or specialised vocational training; and/or
(b)
a managerial role (managing 5–10 people) responsible for the operation of part or parts of the employer’s business.
Those employed at this level exercise considerable discretion and/or are responsible for operational planning.
Indicative job list—human resources consultant, senior learning and development officer, accountant, senior claims officer, analyst programmer, fraud investigator, call centre team leader, credit controller, administration manager, underwriter, sales manager, customer service team leader, assessor, loss control officer, business analyst, assistant branch manager, personal lending specialist, team leader.
B.6 Level 6 A Level 6 position typically performs a middle managerial role primarily to control the conduct of a part of the employer’s business and in which decisions are regularly made and responsibility accepted on matters relating to the administration and conduct of the part of the business. Those responsible for managing more than 10 people must be classified at this level provided that this level 6 classification does not cover classes of employees:
[2014] FWCFB 7989
(a)
who, because of the nature or seniority of their role, were not traditionally covered at all by awards; or
(b)
who perform work that is not of a similar nature to work that has previously been regulated at all by awards.
Indicative job list—branch manager, human resources or fraudulent relations
manager, financial planners, information technology specialists, relationship manager,
senior analyst, subject matter manager, divisional manager.”
[59] The employer and employee persons covered by the Wagering Award are:
THL in respect to the occupation of a person or persons employed in or in connection with the operation of a totalizator throughout the State of Victoria including, but not limited to, on a racecourse in connection with a race meeting or on a ground in connection with dog racing, other than persons employed in the mechanical maintenance of such totalizator. Clerical employees of THL engaged to normally work five days per week between Monday and Saturday inclusive in Head Office Administration Business Group or in the Operations and Data Processing divisions. Casuals employed by THL as branch clerks, Account Sales Operators and head
office clerks. Employees employed by THL on course in or in connection with the operation
of a totalizator throughout the State of Victoria.
[60] A “totalizator” is relevantly defined in The Macquarie Dictionary, Sixth Edition, (Macquarie Dictionary) as “2. a. a system of betting, as on horseraces, in which those who bet on the winners divide the bets or stakes, less a percentage for the management, taxes, etc.
b. the apparatus that records the bets in such a system.”
[61] The word “bet” being relevantly defined in the Macquarie Dictionary, as:
“bet verb (bet or betted, betting) - v.t. 1. to pledge as a forfeit to another who makes a similar pledge in return, in support of an opinion; stake; wager… 2. to predict (a certain outcome)… -v.i. 3. to lay a wager. 4. to make a practice of betting. -n. 5. a pledge of something to be forfeited, in case one is wrong, to another who has the opposite opinion. 6. that which is pledged.”
[62] Ms Bernadette McLoughlin gave evidence for THL that “Tabcorp Holdings Limited, with its subsidiaries and associated entities (together Tabcorp) is Australia’s leading
wagering, racing media, gaming services and Keno operator.”14 In respect of “Wagering”,
Ms McLoughlin’s evidence was that:
[2014] FWCFB 7989
“Wagering
5 Tabcorp’s on-course wagering operations fall within Tabcorp’s wagering business division.
6 Tabcorp’s wagering business includes tote, fixed odds and sports betting. These products are sold from fixed retail outlets, call centre operations and through various digital channels. It includes bets placed through Tabcorp’s TAB.com.au (which is based in New South Wales), Luxbet.com (which is based in the Northern Territory), by phone with Tabcorp’s New South Wales call centre staff and betting at approximately 2,900 TAB outlets across New South Wales and Victoria. It also includes Tabcorp’s on course totalising activities, which is betting that takes place at over 270 racecourses in New South Wales and Victoria.
7 In the 2013 financial year, Tabcorp’s self-service EasyBet Terminals, which are self-serve terminals installed throughout Tabcorp’s network, generated 53.2% of retail turnover in Victoria and 40.5% of retail turnover in New South Wales. Digital wagering (particularly via iPhone, iPad and Android) and fixed odds wagering are areas of growth for Tabcorp. For the 2013 financial year,
annual growth in the turnover of digital wagering was 13.6% and annual
growth in fixed odds revenue was 25.8%.”15
[63] We are not persuaded that the references in this evidence to “products” being “sold”
and “retail outlets” is decisive of the modern award coverage of the persons covered by the
Wagering Award.
[64] The evidence before us indicates THL’s wagering business in so far as the Wagering Award is concerned revolves around THL accepting bets relating to the outcome of gambling events such as a race and paying out money that THL is liable to pay on the outcome of the gambling events.16
[65] This is consistent with the definition of a “wagering contract” in the Macquarie Dictionary which provides that:
“wagering contract n. contact in which mutual promises are made between two persons, that one will pay the other a certain sum of money if a certain event is ascertained to have happened.”
[66] Such acceptance of bets and paying out of money does not fall within the “general retail industry” as defined in the Retail Award in that it does not fall within the constituent parts of that definition. It is not the “sale or hire of goods or services”. THL maintained its wagering business did come within the “general retail industry” as “a bet, is the provision of a ‘service’ for ‘personal consumption’.”17 However, as the evidence before us indicates, it is
not THL who provides a bet, rather they accept a bet.
[67] Moreover, having regard to the nature of the definition of the “general retail industry”
as a whole in the Retail Award, it cannot sensibly be said that such acceptance of bets and
paying out of money is in the “general retail industry”.
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[68] Accordingly, we are not persuaded that, in so far as THL is an employer in its
wagering business, it is an employer in the “general retail industry” and would be covered by
the Retail Award but for the Wagering Award.
[69] We add that the employees covered by the Wagering Award are those engaged in the “Head Office Administration Business Group”, engaged in the “Operations and Data Processing divisions”, employed as “branch clerks, Account Sales Operators and head office clerks”, and employed “on course in or in connection with the operation of a totalizator”.
[70] The Retail Award covers employees in the classifications listed in its clause 16 and clause 16 of the Retail Award refers to its “Schedule B—Classifications”. Schedule B to the Retail Award requires an employee to be performing functions at a “retail establishment”. It is not evident that the employees covered by the Wagering Award perform their functions at a “retail establishment”. As a result, we are also not persuaded the employees covered by the Wagering Award would be covered by the Retail Award but for the Wagering Award.
[71] Further, as earlier set out, the Banking Award covers “employers throughout Australia
who are engaged in the banking, finance and insurance industry in respect of work by their
employees in a classification in [the] award and those employees.”
[72] The “banking, finance and insurance industry” is defined in the Banking Award as meaning “the industries of banking, lending, loaning, providing credit, investment, finance, superannuation, all forms of insurance, credit unions, building societies, financial intermediaries, trustee creditors and agencies, money market dealers, credit or charge card institutions, wool broking, agribusiness and services to the above industries such as broking, trading, debt recovery, financial consulting, valuation, money changing, data processing, transaction accounts, telephone enquiries and transaction processing.”
[73] The ASU maintained THL’s wagering business comes within the “banking, finance
and insurance industry” as defined in the Banking Award as the Totalizator Act 1997 (NSW)
defines “totalizator” as:
“6 Meaning of ‘totalizator’ For the purposes of this Act,
‘totalizator’ means:
(a)
a system used to enable persons to invest money on events or contingencies with a view to successfully predicting specified outcomes of those events or contingencies and to enable the money left after the deduction of commission to be divided and distributed among those persons who successfully predict those outcomes, and
(b)
any instrument, machine or device through or by which the system is operated.
Note: Under this Act money can be invested on a totalizator for horse and greyhound races,
and on other events approved by the Minister. References in this Act to a totalizator can
include a reference to an approved betting activity under section 13. See that section.”
[2014] FWCFB 7989
[74] However, in our view, THL’s acceptance of bets relating to the outcome of gambling events and paying out of money liable to be paid on the outcome of the gambling events does not result in it being engaged in the industry of investment as contemplated in the Banking Award having regard to the nature of the definition of the “banking, finance and insurance industry” as a whole in the Banking Award.
[75] Accordingly, we are not persuaded that in so far as THL is an employer in its
wagering business, it is an employer engaged in the “banking, finance and insurance industry”
and would be covered by the Banking Award but for the Wagering Award.
[76] The Clerks Award covers “employers in the private sector throughout Australia with respect to their employees engaged wholly or principally in clerical work, including administrative duties of a clerical nature, and to those employees”, subject to some exceptions with which we need not be further concerned. “Clerical work” in the Clerks Award “includes recording, typing, calculating, invoicing, billing, charging, checking, receiving and answering calls, cash handling, operating a telephone switchboard and attending a reception desk”.
[77] Given the nature of the employees covered by the Wagering Award as described in its coverage clause and elaborated upon in its wage rates clause and the classification structure set out in its Appendix A, we are satisfied that employees covered by the Wagering Award are “engaged wholly or principally in clerical work, including administrative duties of a clerical nature”18 and would thereby be covered by the Clerks Award but for the Wagering Award.
As a result, their employer, THL, would also be covered by the Clerks Award but for the
Wagering Award.
[78] We are fortified in this view by the comments of the Full Bench of the AIRC, which we have earlier set out, when it made the Clerks Award.
| (c) | The content, or likely content, of the modern award referred to in item 4(5)(b) of schedule 6 of the TPCA Act (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)) |
[79] The content of the Clerks Award is terms and conditions of employment largely set having regard to the content of relevant predecessor awards and notional agreements preserving state awards (NAPSAs), as well as legislative requirements concerning the making, variation and review of modern awards.
[80] The ASU submitted that certain terms and conditions of employment in the Wagering Award are not included in the Clerks Award, namely wagering specific classifications, sessional rates, postponement or abandonment of a meeting rates, and allowances concerning transport to and from meetings and a demonstration.
[81] We accept that some of the terms and conditions of employment in the Clerks Award are more beneficial and some less beneficial for employees than those in the Wagering Award and, consequentially, less and more beneficial for THL. It was not suggested to us that the content of the Clerks Award is such that its provisions are not capable of application in respect of the wagering business covered by the Wagering Award.
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| (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 (Item 4(5)(d)) |
[82] In regard to item 4(5)(d) of schedule 6 of the TPCA Act, the ASU submitted that the Wagering Award with its wagering specific classifications and wagering specific conditions of employment such as span of hours and allowances was specifically created and developed to meet the needs of THL.
[83] The TABCORP - Australian Services Union Victorian Oncourse and Special Events
Enterprise Agreement 201219 (2012 Agreement), applies to some employees covered by the
Wagering Award.
[84] The application clause of the 2012 Agreement provides as follows:
“3. APPLICATION This Agreement will apply to all Casual On-Course and Special Events employees of TABCORP Assets Pty Ltd and Tabcorp Holdings Limited (as the parent company of Tabcorp Assets Pty Ltd) engaged to perform work within the classifications contained in this Agreement at:
(a) Any TABCORP operated Special Events site located within the State of Victoria including fixed Special Event locations and those established on a temporary basis for promotions and events; and (b) Racecourses in connection with a race meeting or dog racing listed at Appendix C.” [85] Appendix C to the 2012 Agreement lists the address of various race tracks.
[86] The wagering specific classifications and conditions of employment the ASU
submitted were contained in the Wagering Award are also largely contained in the
2012 Agreement in so far as they continue to be relevant.
[87] No enterprise awards apply to similar employees in other states.
[88] Other enterprise agreements apply to similar employees in other states. However, a detailed comparison of the terms and conditions of employment in all these other enterprise agreements compared to those in the Wagering Award was not provided to us, notwithstanding us providing the ASU and the employers with the opportunity to provide further material.20
| (e) | The extent to which the enterprise instrument provides enterprise-specific terms and conditions of employment (Item 4(5)(e)) |
[89] The enterprise-specific terms and conditions of employment in the Wagering Award that the ASU highlighted to us were its classification structure, span of hours, sessional rates, postponement or abandonment of meeting rates, transport to and from meetings allowance and demonstration allowance.
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[90] We accept that the nature and/or content of some of these provisions is enterprise- specific. However, the classification structure in the Clerks Award is broad enough to cover the classifications in the Wagering Award, the span of hours provisions in the Clerks Award can be regarded as more beneficial for employees than those in the Wagering Award, the Clerks Award contains rate provisions capable of being applied in respect of meeting hours and also contains a vehicle allowance, and the demonstration allowance has not been utilized for a considerable period of time.
| (f) | The likely impact on the persons covered by the enterprise instrument, and the persons covered by the modern award referred to in item 4(5)(b) of schedule 6 of the TPCA Act, 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)) |
[91] In respect of item 4(5)(f) of schedule 6 of the TPCA Act, the ASU submitted that the
making of a modern enterprise award to replace the Wagering Award would not have any
detrimental impact and also pointed out the existence of the 2012 Agreement.
[92] THL pointed out that if the modern enterprise award is not made then the relevant modern award covering the employees now covered by Wagering Award would become the reference instrument for the purposes of the application of the better off overall test (BOOT) in the approval of future enterprise agreements for those employees.
[93] Given the existence of the 2012 Agreement, we think it likely that in the short run there would be no real impact on those covered by the Wagering Award of a decision not to make a replacement modern enterprise award. Similarly in the short run, there would be no real impact on those covered by the Clerks Award of such a decision. In the longer run, we think the real impact of such a decision on the persons covered by the Wagering Award would be that they would be covered by the Clerks Award for the purposes of the future application of the BOOT, as are others covered by the Clerks Award. The relatively more and less beneficial provisions of the Clerks Award compared to the Wagering Award is likely to be an impetus to collective bargaining towards the making of future enterprise agreements between those covered by the Wagering Award, with consequential impact on the ongoing viability or competitiveness of the enterprise carried on by them. This would place them in a similar position to those covered by the Clerks Award, particularly those in the industry who were previously covered by an enterprise instrument.
[94] With respect to a decision to make a replacement modern enterprise award, there is not likely to be any impact in the short run on those covered by the Wagering Award or the Clerks Award. In the longer run, the likely impact is that such persons will be covered by a different reference instrument for the purposes of the future application of the BOOT, but the impact on the ongoing viability or competiveness of any enterprise carried on by them is not evident.
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| (g) | The views of the persons covered by the enterprise instrument (Item 4(5)(g)) |
[95] The ASU supported the making of a modern enterprise award to replace the Wagering Award and THL opposed it. The employees covered by the Wagering Award who have indicated a view have indicated they support the making of a modern enterprise award to replace the Wagering Award. The ASU and THL also have differing views as to the content of the modern enterprise award to replace the Wagering Award.
| (h) | Any other matter prescribed by regulations (Item 4(5)(h)) |
[96] There are no other matters prescribed by the regulations.
Conclusion
[97] We are not persuaded we should make a modern enterprise award to replace the
Wagering Award.
[98] The evident circumstances that led to the making of the Wagering Award being the AIRC award simplification review mildly supports the making of the modern enterprise award to replace it.
[99] The existence of the Clerks Award as a modern award that would cover the persons
covered by the Wagering Award but for that latter award tells against making the replacement
modern enterprise award, as they would retain award coverage.
[100] The Clerks Award contains some terms and conditions of employment which are more beneficial and some which are less beneficial for employees than those in the Wagering Award and, consequently, some which are less beneficial and more beneficial for THL. The content of the Clerks Award is not such that its provisions are not capable of application in respect of the wagering business covered by the Wagering Award. In such circumstances, we think the content of the Clerks Award tells against the making of the replacement modern enterprise award.
[101] The absence of modern enterprise awards elsewhere in the industry in which the
persons covered by the Wagering Award operate and the existence of enterprise agreements in that industry, including the 2012 Agreement largely containing the wagering specific classifications and conditions in the Wagering Award, also tell against the making of the replacement modern enterprise award.
[102] The enterprise-specific terms and conditions of employment in the Wagering Award
mildly support the making of the modern enterprise award to replace it. They do so only mildly because the Clerks Award contains terms and conditions of employment capable of being applied to most of the matters the subject of the enterprise-specific provisions.
[103] The likely impact on the persons covered by the Wagering Award, and the persons
covered by the Clerks Award, of a decision to make, or not make, a replacement modern enterprise award, including any impact on the ongoing viability or competitiveness of any enterprise carried on by them, supports not making the modern enterprise award, particularly as in the longer run it will result in such persons being covered by the same modern award for the purposes of the future application of the BOOT.
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[104] The views of those covered by the Wagering Award tends to be a neutral factor given
the opposing views.
[105] The FWC must apply the modern awards objective and the minimum wages objective to the making of a modern enterprise award, while recognising modern enterprise awards may provide terms and conditions tailored to reflect employment arrangements that have been developed in relation to the relevant enterprises.
[106] Taking the above matters into account, we think that in this case the factors in
item 4(5) of schedule 6 of the TPCA Act telling against making the modern enterprise award to replace the Wagering Award outweigh those supporting the making of the replacement modern enterprise award.
[107] For these reasons we have decided not to make a modern enterprise award to replace
the Wagering Award. Pursuant to item 9(3) of schedule 6 of the TPCA Act, the Wagering
Award therefore terminates at the date of this decision.
SENIOR DEPUTY PRESIDENT
Appearances:
| J. Cooney for the Australian Municipal, Administrative, Clerical and Services Union. |
| M. Felman, counsel, for TAB LIMITED, TABCORP HOLDINGS LIMITED and TABCORP |
| WAGERING HOLDINGS PTY LTD. |
| Hearing details: |
| 2014. Sydney: September 29, 30. |
| Final written submissions: |
| Australian Municipal, Administrative, Clerical and Services Union, 15, 17 and 21 October 2014 and 5 November 2014. |
| TAB LIMITED, TABCORP HOLDINGS LIMITED and TABCORP WAGERING HOLDINGS PTY LTD, 28 October 2014 and 14 November 2014. |
| Printed by authority of the Commonwealth Government Printer |
| <Price Code G PR557600> |
[2014] FWCFB 7989
Endnotes:
1 AN120451.
2 AN120534.
3 AP823411.
4 Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth), schedule 3, item 2.
5 Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth), schedule 6, item 2.
6 (2012) 214 IR 434.
7 Print M4348 [AW799775].
8 Print K8649 [AW799665].
9 ASU submissions in reply dated 5 November 2014 at paragraph 5.
10 MA000002.
11 MA000019.
12 MA000004.
13 Award Modernisation decision, [2008] AIRCFB 1000.
14 Exhibit F1 at paragraph 3.
15 Exhibit F1 at paragraphs 5-7.
16 Exhibit C4 at paragraph 7; Exhibit C3 at paragraph 4; Exhibit F1 at paragraphs 27, 28 and 35; A New Tax System (Goods
and Services Tax) Act 1999 (Cth), s.126-35; and Australian Taxation Office Goods and Services Tax Ruling 2002/3.
17 Further supplementary submissions of the employers of 28 October 2014 at paragraph 29.
18 MA000002, cl.4.1.
19 AE898339.
20 Transcript in EM2013/102, EM2013/104 and EM2013/105 at PN1176.
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