"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) (188V)

[2014] FWCFB 5092

FAIR WORK COMMISSION

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.

"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) (188V)
(EM2013/112)

CHC HELICOPTERS (AIRCREW/RESCUE CREW) AWARD 2002

Airline operations

VICE PRESIDENT WATSON
DEPUTY PRESIDENT SMITH
COMMISSIONER LEE

MELBOURNE, 4 AUGUST 2014

Application by "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) (188V) - Industry Award coverage - no modern award currently applicable to rescue helicopter aircrew - matter to be adjourned pending the making and determination of an application for industry wide award coverage of rescue helicopter aircrew - Fair Work (Transitional Provisions and Consequential Amendments Act 2009, Schedule 6 Item 4, Schedule 6 Sub-Item 4(5), Schedule 6, Item 6.

Introduction

[1] This decision relates to an application by the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (AMWU) for the making of a modern enterprise award to replace the CHC Helicopters (Aircrew/Rescue Crew) Award 2002.

[2] CHC Helicopters indicated to the Commission that it is not opposed to the making of the award and did not take part in the proceedings. The AMWU was represented by Ms J. Tran and Mr M. Nguyen.

The Legislative Task

[3] The role of the Commission in an application to make a modern enterprise award is governed by sub-item 4(5) of Schedule 6 to the Fair Work (Transitional Provisions and Consequential Amendments Act 2009 (the Transitional Act) which provides:

(5) In deciding whether or not to make a modern enterprise award, and in determining the content of that award, the FWC must take into account the following:

(a) the circumstances that led to the making of the enterprise instrument rather than an instrument of more general application;
(b) whether there is a modern award (other than the miscellaneous modern award) that would, but for the enterprise instrument, cover the persons who are covered by the instrument, or whether such a modern award is likely to be made in the Part 10A award modernisation process;
(c) the content, or likely content, of the modern award referred to in paragraph (b) (taking account of any variations of the modern award that are likely to be made in the Part 10A award modernisation process);
(d) the terms and conditions of employment applying in the industry in which the persons covered by the enterprise instrument operate, and the extent to which those terms and conditions are reflected in the instrument;
(e) the extent to which the enterprise instrument provides enterprise-specific terms and conditions of employment;
(f) the likely impact on the persons covered by the enterprise instrument, and the persons covered by the modern award referred to in paragraph (b), of a decision to make, or not make, the modern enterprise award, including any impact on the ongoing viability or competitiveness of any enterprise carried on by those persons;
(g) the views of the persons covered by the enterprise instrument;
(h) any other matter prescribed by the regulations.

[4] It is also necessary to consider the modern enterprise awards objective: Item 6 of Schedule 6 of the Transitional Act. This is a legislative requirement for the Commission to recognise, in the context of the modern awards objective, that modern enterprise awards may provide terms and conditions tailored to reflect employment arrangements that have been developed in relation to the relevant enterprises.

Industry Award coverage

[5] At the hearing of this application it emerged that there is currently no modern award applicable to rescue helicopter aircrew and that there are at least three other operators that provide helicopter rescue services that are all award free. These operators, and CHC itself, all have enterprise agreements covering aircrew.

[6] In response to a question from the Commission, the AMWU indicated that it was considering making an application for an industry award covering rescue helicopter aircrew or an amendment to the scope of an existing award to achieve that outcome. In our view there is much to commend this approach. It would provide modern award coverage of all rescue helicopter aircrew and provide a common safety net for bargaining for all groups of employees. There would appear to be no impediment to making and determining such an application in the near future.

[7] In the circumstances we have decided to adjourn this application pending the making and determination of an application for industry wide award coverage of rescue helicopter aircrew. The matter can be relisted at the request of either party to the current award in the light of subsequent developments.

VICE PRESIDENT

Appearances:

Ms J. Tran with Mr M. Nguyen, for the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union.

Hearing details:

2014.

Melbourne.

22 July.

Printed by authority of the Commonwealth Government Printer

The case involved the Australian Manufacturing Workers' Union (AMWU) seeking industry award coverage for rescue helicopter aircrew. The matter was heard in the Fair Work Commission. The primary dispute centred around the applicability of a modern award to the rescue helicopter aircrew, given the absence of a specific industry award that covered this occupation. The AMWU argued that an industry award should be established to provide coverage for this group of workers.

The legal issues before the Commission included whether a modern award could be applied to the rescue helicopter aircrew in the absence of a specific industry award and what steps should be taken to address this gap. The Commission had to consider the relevant legislative framework, including provisions from the Fair Work (Transitional Provisions and Consequential Amendments Act 2009), which provided the authority for the Commission to make an application for industry-wide award coverage. The Commission determined that the matter should be adjourned to allow for the making and determination of such an application.

The Commission's reasoning focused on the need for a specific industry award to cover the rescue helicopter aircrew. It held that, in the absence of a modern award or an industry award applicable to these workers, the Fair Work Act and related legislation provided the necessary framework for addressing this gap. The Commission concluded that it should adjourn the matter to facilitate an application for industry-wide award coverage, in accordance with the statutory provisions. The adjournment would allow for the appropriate award to be developed and determined, ensuring that the rescue helicopter aircrew received the necessary protections and entitlements.

No final orders were made in this case, as the matter was adjourned pending the determination of an application for industry-wide award coverage. The Commission's decision provided clarity on the procedural steps to be taken to address the coverage gap for rescue helicopter aircrew, ensuring that the workers would eventually receive the necessary protections under an applicable award.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established