"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU)
[2014] FWCFB 5733
•11 SEPTEMBER 2014
| [2014] FWCFB 5733 |
| 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.
(EM2013/115)
THE NOTE PRINTING AUSTRALIA AWARD 2000
Graphic Arts | |
VICE PRESIDENT WATSON | MELBOURNE, 11 SEPTEMBER 2014 |
Application by "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) (188V) - Whether the Note Printing Australia Award 2000 is capable of being the subject of an application - Factors to be considered when making a modern enterprise award - Case made out for the making of a modern enterprise award - Conference to be convened before member of the Full Bench to consider terms before modern enterprise award is finalised - Fair Work (Transitional Provisions and Consequential Amendments) Act 2009, Schedule 6 Item 4, Schedule 6 Item 6.
Introduction
[1] The "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) has made an application to make a modern enterprise award to replace the Note Printing Australia Award 2000 (the NPA Award). The application is made under Item 4 of Schedule 6 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the Transitional Act).
[2] The only employer respondent to the Award is Note Printing Australia (NPA), a wholly owned subsidiary of the Reserve Bank of Australia (RBA). Its key business is the printing and production of high quality and secure banknotes and passports. In the 2012/13 financial year, NPA supplied the RBA with 197 million Australian bank notes. It also produced approximately 330 million banknotes for other countries and 1.4 million Australian passports.
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 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 addition to the modern awards objective and the minimum wage objective generally, that modern enterprise awards may provide terms and conditions tailored to reflect employment arrangements that have been developed in relation to the relevant enterprises.
[5] We propose to consider initially whether or not to make a modern enterprise award by reference to the criteria in item 4(5) of Schedule 6.
The circumstances that led to the making of the enterprise instrument rather than an instrument of more general application: Item 4(5) (a)
[6] NPA’s first enterprise award was approved by a Full Bench of the Australian Industrial Relations Commission in 1992. It was the result of lengthy negotiations establishing new terms and conditions that led Commissioner Gay to observe at the time were instrumental to its continued existence. It contained unique provisions developed to suit the unique nature of the enterprise. It has since been used as the safety net for successive enterprise agreements.
Whether there is a modern award that would, but for the enterprise instrument, cover the persons who are covered by the instrument: Item 4(5) (b)
[7] Employees of NPA are engaged in a range of different classifications. If the NPA Award is not modernised it is likely that at least four different industry and vocational awards would apply. These are the Graphic Arts Printing and Publishing Award 2010, the Clerks - Private Sector Award 2010, the Professional Employees Award 2010 and the Manufacturing and Associated Industries and Occupations Award 2010. A number of classifications would not be covered by any award.
The content of the Graphic Arts Printing and Publishing Award 2010, the Clerks - Private Sector Award 2010, the Professional Employees Award 2010 and the Manufacturing and Associated Industries and Occupations Award 2010: Item 4(5) (c)
[8] These awards have different provisions to the NPA Award and they differ compared to each other in many respects. Consequently the application of the Better Off Overall Test will be complicated if the current enterprise instrument is not modernised and retained. We note however that this is not an unusual situation.
The terms and conditions of employment applying in the industry: Item 4(5) (d)
[9] As we have observed, there is no industry of note-printing in Australia outside the operations of NPA. The printing industry generally is covered by similar awards to the modern awards that would apply to NPA if the NPA Award is not retained. The terms and conditions of the NPA Award are generally more beneficial to employees than the modern industry and vocational awards that would otherwise apply. In taking this factor into account it should be noted that any modern enterprise award may differ from the current NPA Award as a result of the modernisation process.
The extent to which the Note Printing Australia Award 2000 provides enterprise-specific terms and conditions of employment: Item 4(5) (e)
[10] Arising from its origin and its unique operating circumstances the NPA Award contains a number of enterprise specific provisions. This includes provisions arising from NPA’s specialist security printing equipment and high level security processing arrangements. These arrangements require an extreme level of reconciliation, security and compliance procedures. These circumstances are described in detail in the confidential evidence of Mr Saffigna on behalf of NPA.
The likely impact on the persons covered by the Note Printing Australia Award 2000, and the persons covered by the Graphic Arts Printing and Publishing Award 2010, the Clerks - Private Sector Award 2010, the Professional Employees Award 2010 and the Manufacturing and Associated Industries and Occupations Award 2010, of a decision to make, or not make, the modern enterprise award: Item 4(5) (f)
[11] The main impact of not modernising the NPA Award will be at the time of re-negotiation of the NPA Enterprise Agreement. As we have commented the process will require a more complicated application of the Better Off Overall Test.
The views of the persons covered by the enterprise instrument: Item 4(5) (g)
[12] The AMWU, its members and NPA support the modernisation of the NPA Award.
The Modern Enterprise Awards Objective
[13] The enterprise specific provisions of the NPA Award are significant in this matter. They constitute a permissible variation from the industry awards because they are provisions developed to suit the needs of a unique operation.
Should a modern enterprise award be made?
[14] The unique nature of NPA operations and the history of the development of award provisions critical to its ongoing viability are important factors in favour of modernising the NPA Award. In our view the general desirability of establishing a simple, easy to understand modern award system of a limited number of primarily industry awards needs to give way to the specific needs of NPA and its employees. In all the circumstances, we are of the view that a case has been established to modernise the NPA Award and maintain an enterprise award safety net for NPA.
Conclusions
[15] Having decided to modernise the NPA Award we propose to consider the terms of the Award. The parties have agreed on the majority of award terms and made submissions on several matters in the proceedings before us. We propose to convene a conference of the parties before a member of the Full Bench to consider these matters further before a modern enterprise award is finalised.
VICE PRESIDENT WATSON
Appearances:
Mr M. Nguyen with Ms J. Tran, for the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union.
Mr R. West, solicitor, with Mr P. Saffigna, for Note Printing Australia.
Hearing details:
2014.
Melbourne.
23 July.
Final written submissions:
Note Printing Australia on 6 August 2014.
Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union on 19 August 2014.
Printed by authority of the Commonwealth Government Printer
<Price code C, AP790759 PR554521 >
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