Coleambally Irrigation Co-operative Limited v The Australian Workers' Union, the Community and Public Sector Union and the Public Service Association and Professional Officers' Association Amalgamated Union of New..
[2014] FWCFB 2170
•2 APRIL 2014
[2014] FWCFB 2170 |
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.
v
The Australian Workers’ Union, the Community and Public Sector Union and the Public Service Association and Professional Officers’ Association Amalgamated Union of New South Wales
(EM2013/9)
Water, sewerage and drainage services | |
SENIOR DEPUTY PRESIDENT HARRISON | SYDNEY, 2 APRIL 2014 |
Application to make a modern enterprise award to replace the Coleambally Irrigation Consent Award 2004.
[1] This decision concerns an application by Coleambally Irrigation Co-operative Limited (the applicant or CICL) to make a modern enterprise award to replace the Coleambally Irrigation Consent Award 2004 (the 2004 Award). 1 It is an application made as part of what is described as the enterprise instrument modernisation process which is established by Schedule 6 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the Transitional Act).
[2] In the proceedings before us Mr Coyne appeared for the applicant, Mr Crawford for The Australian Workers’ Union (AWU) and Mr van Vegchel for the Community and Public Sector Union (CPSU) and the Public Service Association and Professional Officers’ Association Amalgamated Union of New South Wales (PSA). No challenge was made by either union to the competence of the application, however the AWU submitted that its preference was for its members to be covered by the Water Industry Award 2010 (Water Industry Award) 2 rather than a modern enterprise award. In the alternative, it submitted that if we were to find the Water Industry Award did not cover CICL and its employees then it would be more appropriate to vary that award for it to do so. In the further alternative the AWU submitted that if a modern enterprise award was to be made, it had a number of concerns about the terms of the draft award as proposed by the applicant. The CPSU and PSA supported the submissions of the AWU.
[3] We have decided to not make a modern enterprise award. These are our reasons for that decision.
The legislation
[4] We should first note that other than modern enterprise awards which are made under Schedule 6 of the Transitional Act, no new enterprise awards will be made. This is the effect of s.168C of the Fair Work Act 2009 (the Act) which is contained within Part 2-3 of the Act. That part deals with modern awards and s.168C provides that the Fair Work Commission (the Commission) must not, under that part, make a modern enterprise award or vary an award so that it becomes a modern enterprise award. There is no other part of the Act under which a modern enterprise award may be made.
[5] Item 2 of Schedule 6 of the Transitional Act describes the type of enterprise instruments which may be the subject of an application. It relevantly provides:
“2 Enterprise instruments
(1) Each of the following is an enterprise instrument:
(a) an enterprise award-based instrument;
(b) an enterprise preserved collective State agreement;
(c) a Division 2B enterprise award.
...
(3) An enterprise preserved collective State agreement is a transitional instrument that is a preserved collective State agreement in relation to which the following paragraphs are satisfied:
(a) a State or Territory law had, on the day before the commencement of Part 2 of Schedule 4 to the Workplace Relations Amendment (Work Choices) Act 2005, the effect (however described) of converting a State award (within the meaning of the WR Act) into the relevant State employment agreement (within the meaning of the WR Act);
(b) if the State award had continued to have effect in relation to employees, a notional agreement preserving State awards to which subitem (2B) applies would have been taken to come into operation in relation to those employees.”
[6] The parties filed a joint memorandum addressing the status of the 2004 Award. They agreed that, in the terms used in item 2(1)(b) and item 2(3), it was a enterprise preserved collective State agreement. CICL referred to this memorandum again in its written submissions. 3
[7] Item 4 of Schedule 6 of the Transitional Act describes the enterprise instrument modernisation process and considerations we must take into account. It is in these terms:
“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;
(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] We note that the considerations listed in item 4(5) are the same considerations the Commission is to take into account when considering an application for the termination of an enterprise instrument made under item 5 of Schedule 6. Items 6 and 7 of Schedule 6 are also relevant to this application. They are in these terms:
“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).
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.”
[9] Item 6(1) indicates that the modern awards and the minimum wages objectives apply to the making of a modern enterprise award. These two objectives, which are ss.134 and 284 of the Act respectively, are set out in Appendix A to this decision.
The Federal Court judgment in Yum! Restaurants - The way we should undertake this enterprise instrument modernisation process
[10] We refer first to decisions which relate to applications to modernise the Pizza Hut SDA - Employee Relations Award 2000 4 and KFC National Enterprise Award 2001.5 In each case a Full Bench of the Commission dismissed the employer’s application to make a modern enterprise award and granted a related application by the Shop, Distributive and Allied Employees Association to terminate the relevant enterprise instrument. The two employers sought to challenge the Full Bench decisions in the Federal Court of Australia. Both applications were heard together. They were dismissed by Justice Cowdroy in a single judgment, Yum! Restaurants Australia Pty Ltd v Full Bench of Fair Work Australia.6 Appeals against that judgment were filed and a Full Court heard the matters together. The Full Court dismissed the appeals for the reasons they gave in their judgment which is also described as Yum! Restaurants Australia Pty Ltd v Full Bench of Fair Work Australia (Yum! Restaurants).7 In doing they commented upon the wording of items 4(5) and 6(2) and the correct approach to be taken to hearing an application made under Schedule 6 of the Transitional Act. The Full Court said:
“17. The interrelationship between Items 4 and 6 and the drafting of those provisions, leaves much to be desired. Clearly, for instance, the parliamentary draftsman had some distinction in mind when using the expression “must take into account” in Item 4(5) and the different expression “must recognise...” employed in Item 6. But what that distinction is remains elusive. It is nevertheless clear that the mandate imposed by Item 6(2) is confined in its operation – Item 6(2) is confined to the necessity for Fair Work Australia to 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”. The operation of Item 6(2) is, in that manner, confined; the manner in which recognition is to be given to terms and conditions being “tailored” in the manner specified nevertheless also remains elusive. Perhaps “recognise” is intended to mean no more than that Fair Work Australia should be “aware of” or “conscious of” the prospect that modern enterprise awards may provide “tailored” terms and conditions.
18. But such potential difficulties in these phrases may presently be left to one side.
CONSIDERATION OF THE MODERN ENTERPRISE AWARDS OBJECTIVE
19. The first of the three issues raised by the Appellant in each appeal questions whether Division 2 of Part 2 of Schedule 6 draws a distinction between:
• the decision-making process whereby a decision is made to make or not make a modern enterprise award pursuant to Item 4(5); and
• the process of making and determining the content of an enterprise award consistent with Item 6.
If there is such a distinction, it is only the matters in Item 4(5) which must be taken into account when “deciding whether or not to make a modern enterprise award”. The “objectives” set forth in Item 6, if the distinction applies, would not need to be taken into account when making that decision; the “objectives” only come into play when engaging in the process of “making a modern enterprise award”. Item 6, on this approach, is directed to the subsequent consideration of the contents of a modern enterprise award once a decision is made to make such an award.
20. The primary Judge accepted that there was such a distinction and accepted that “Item 6 is a ‘different item’ from Item 4(5) and is concerned with the second stage, namely when the Full Bench is ‘making a modern enterprise award’”: [2011] FCA 1315 at [52], 199 FCR 75 at 84. It is respectfully concluded that the primary Judge erred in so concluding. His Honour nevertheless went on to further conclude that “even though it was not mandatory for the Full Bench to do so, the Full Bench, by its deliberations, applied the modern enterprise awards objective when deciding whether or not to make modern enterprise awards in favour of the applicants”: [2011] FCA 1315 at [77], 199 FCR 75 at 87.
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 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 Division 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 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 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.
A RECOGNITION OF THE MODERN ENTERPRISE AWARDS OBJECTIVE
24. Notwithstanding departure from the conclusion of the primary Judge as to the interrelationship between Items 4 and 6, it is nevertheless further concluded that his Honour was clearly correct when he separately concluded that “the Full Bench, by its deliberations, applied the modern enterprise awards objective when deciding whether or not to make modern enterprise awards in favour of the applicants”: [2011] FCA 1315 at [77], 199 FCR 75 at 87.”
[11] Later, the Full Court again commented on item 6 in these terms:
“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.”
The evidence
[12] The applicant filed a draft of the modern enterprise award it sought to replace the 2004 Award. We will refer to this as the proposed award. We will later comment on the content of the proposed award.
[13] A number of documents associated with applications for certification or approval of enterprise agreements which had been made between CICL and its employees were also referred to. Those agreements were either certified or approved under the Workplace Relations Act 1996 (WR Act) or approved under the Act. From public records and the evidence and submissions before us it appears the first was the Coleambally Irrigation Enterprise Agreement 2001 which came into force in March of 2001. 8 Subsequently, five agreements, each bearing a similar name, were either certified or approved approximately every two years.9 We refer to these agreements later in this decision.
[14] CICL filed two witness affidavits. One was from Mr John Culleton 10 the applicant’s Chief Executive Officer and the other was from Mr Mike Ridley, Manager Special Projects.11 Each participated in the hearing by way of a telephone link. They were not required to give sworn evidence and were not cross examined. We have considered the content of each of the affidavits and also the comments made by each of them in the hearing. A summary of the key matters raised by them (taken from a combination of the affidavits and comments made) is as follows.
Mr Culleton
• He has been the Chief Executive Officer (CEO) since December 2008. CICL has its genesis in the New South Wales public sector within the NSW Department of Land and Water Conservation. In about 1997 the then Coleambally Irrigation Corporation was created as a government owned corporation under relevant New South Wales legislation. Subsequently, in or about the year 2000, certain State Owned Corporations were privatised and CICL came into existence.
• CICL is Australia’s fourth largest irrigation company and is wholly owned by its farmer members. He said “CICL is not a water provider or water company; it is first and foremost an infrastructure operator”. Its owners do not pay for the delivery of water nor for CICL to harvest or store water. He said it is the infrastructure and maintenance of the infrastructure that is the focus of the business. 12
• CICL’s irrigation system allows its members, and customers who are not members, access to water which is delivered across the relevant irrigation area. A total channel control system operated by CICL allows for water orders to be satisfied within two hours. He contrasted CICL’s activities with those of “State Water” which he described as being first and foremost about harvesting, storing and releasing water whereas CICL was first and foremost about maintaining state of the art infrastructure to link its farmers to the water assets held by State Water.
• The Coleambally Irrigation Area is located in the Riverina midway between Griffith and Jerilderie. It is situated in a very small and relatively remote community and this has a distinct bearing on the way CICL operates and its staffing. Most of its staff had developed their skills “on the job” because many of those skills are not ones taught in formal institutions. It draws its staff from a small local labour pool. They need a high knowledge of local cropping operations because they have a direct bearing on the demand for CICL’s services. Staff are involved in more than just the delivery of water. Examples were given of them assisting farmers to access Commonwealth funding programmes and the contracts and administration related to the funding.
• CICL is broadly organised into the following activities: engineering and infrastructure operation, asset renewal and maintenance, customer services, compliance and support services. Mr Culleton said the first of these is the primary function of CICL.
• CICL’s workforce comprises 28 persons and an additional six to eight persons may be engaged for a short time during peak maintenance periods.
• CICL has had enterprise specific industrial regulation since its inception in 1999. He observed that the 2004 Award had been made as a consent award with the PSA and the AWU. He said that the 2004 Award had been updated from time to time in accordance with State legislation and State wage cases. He had participated in the negotiation for two enterprise agreements. He said that enterprise bargaining was central to industrial regulation at CICL. The first agreement had been certified by the then Australian Industrial Relations Commission (AIRC) in 2001 and subsequently there has been five further enterprise agreements certified or approved.
• Mr Culleton described Coleambally as a tight-knit community and CICL the major employer. He believed the best outcome for CICL and its staff is for the making of a modern enterprise award which would underpin enterprise bargaining. The terms of the proposed award had been confirmed by the Board of CICL and a Consultative Committee which had been established on behalf of the workforce. It was intended that his position would be covered by the proposed award as well as all other employees. However, some employees at a senior level, including him, had certain components of their employment covered by the terms of a written contract.
• The normal hours of work are 8.30am to 4.30pm, Monday to Friday. Sometimes employees may work outside that span of hours although that is not a regular feature of the work. They may, for example, take a longer break than usual to attend a medical appointment or the like and then make up the time on another occasion. It is like a flexi-hours arrangement. 13 There are only two employees who may be required to work outside normal hours and they are the channel technician and the operations supervisor. When required to work after hours they will do so on a roster basis. One will monitor the infrastructure and he will do that from home via his computer. Any corruption can usually be corrected by a keystroke or the problem can be isolated and attended to during normal working hours. The other person, who is a technician, is a backup who remains on call should assistance be required. No one else is required to work on a weekend.14
Mr Ridley
• He has been employed by CICL for over nine years. He was the Chairperson of the Consultative Committee of CICL. The Committee was made up of five persons drawn from across the broad areas of CICL’s activities. There were no senior managers on the Committee although the Company Secretary was on it as the nominal representative of the CICL Board.
• The role of the Committee was to represent the employees in enterprise bargaining which occurred, on average, every two years. It was also an ad hoc committee where input from staff was appropriate.
• Mr Ridley explained the usual process for enterprise bargaining and the way the Committee went about canvassing the views of staff in each of the broad areas of CICL’s activities. The nominal representative of the Board on the Committee had used an “external workplace relations advisor” (WR Advisor) to assist during negotiations in relation to issues concerning technical or legal matters. The same process had been adopted for the purposes of dealing with the current application.
• He had participated in the negotiation of two enterprise agreements, which he described as the 2010 - 2012 and 2012 - 2013 agreements. In each case, the 2004 Award was used “as the comparator”. He made the same observations as Mr Culleton had about the origin of the 2004 Award and that it had been updated from time to time to reflect issues of a general nature such as State Wage Cases.
• He had discussions with Mr Culleton and had seen advice from CICL’s WR Advisor about the prospect of the 2004 Award being terminated. Discussions were had by the Committee and the consensus was that the 2004 Award had served employees well and, if possible, should be modernised. He did not think the Water Industry Award or the Miscellaneous Award 2010 15 related to CICL’s business or jobs.
• A staff meeting had been held in which he and Mr Culleton participated. A document described as a handout in “Q & A format” was provided to all attendees. Mr Ridley said the attendees were unanimously in favour of modernising the 2004 Award. Over the following months the Committee, together with Mr Culleton and the WR Advisor, developed the terms of the draft proposed modern enterprise award. A comparison document itemising clauses from the 2004 Award and the draft proposed enterprise award was prepared.
• Mr Ridley was in the position of Manager, Special Projects and he understood his position would be covered by the proposed award. He did not know what his classification level would be under the terms of the proposed award. 16
[15] Before leaving this summary of the evidence we should note that the AWU indicated that it would be assisted if a copy of the documents (the Q & A and comparison documents) were provided. We too observed that although the applicant did not have to give us a copy of those documents, we noted that they were relied on by both Mr Culleton and Mr Ridley and would assist us in understanding their evidence. 17 The documents were not provided.
The considerations in item 4(5), item 6 and item 7
[16] We have earlier reproduced item 4(5) which contains a numbers of matters which we must take into account in deciding whether or not to make a modern enterprise award. A number of the considerations we refer to below are relevant to more than one particular matter in that item. Consistent with the Full Court judgment in Yum! Restaurants, we will also take into account item 6(1) which provides that the modern awards and minimum wages objectives apply to this exercise, as does item 6(2) which requires us, in applying these objectives to “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...”. Finally, we have borne in mind that the terms of any modern award we may consider making are to be consistent with the requirements of Part 2-3 of the Act. We now turn to consider each of the matters in item 4(5).
(a) The circumstances that led to the making of the enterprise instrument rather than an instrument of more general application
[17] The enterprise instrument we are here considering is the 2004 Award. This award was made by consent between CICL and the then state counterparts of the AWU and CPSU. Clause 3 of the 2004 Award titled “Objectives” provides that the parties agree that the objective of the award is to “manage the transition from public to private ownership of the CIC and to act as a safety net award for any future enterprise agreements”. CIC was a reference to Coleambally Irrigation Corporation.
[18] The evidence of Mr Culleton about the circumstances in which the award came into existence is consistent with the award’s objectives. CICL submitted that it also explains why so many of the original terms and conditions were more than minima, describing it as being akin to a paid rates award. The parties had recognised the need to include actual terms and conditions, not merely a minimum safety net. It submitted that at the time there was no other appropriate award that could cover CICL and that it could not be party to any public sector award. Nor was there a Federal or State award at the time that appeared to be applicable to CICL’s activities in respect to which it could seek a variation to become a party.
[19] We should also refer to one other clause of the 2004 Award which gives an indication of the intention of the parties in relation to at least salaries at the time the award was made. Clause 14 provides that it is the employer’s intention to develop a salary remuneration system “more dependent on performance, that is, a system based on staff performance, evaluation and development (CEDEPS)” and that it would progressively introduce such a system following consultation with the Consultative Committee.
(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
[20] The AWU submitted the Water Industry Award was the relevant modern award for the purposes of this consideration. CICL submitted that there is no modern award that would, but for the 2004 Award, cover it and its employees. It submitted it is not in the “water industry” as that term is defined in the Water Industry Award. Further, it submitted the classifications in the Water Industry Award did not cover all of its employees who are covered by the 2004 Award.
[21] We have decided the definition of “water industry” in clause 4.2 of the Water Industry Award is sufficiently broad to extend to and cover CICL’s activities. The other consideration is whether this item requires us to find that the classification levels in the Water Industry Award would cover all the employees who are covered by the 2004 Award. In our opinion this item does not require a finding that every one of CICL’s employees covered by the 2004 Award would also be covered by the Water Industry Award. We have also found that with one exception, it is likely all of CICL’s employees would be covered by the Water Industry Award. We now turn to our reason for these conclusions.
[22] The coverage clause in the Water Industry Award is in the following terms:
“4. Coverage
4.1 This industry award covers employers throughout Australia in the water industry and their employees in the classifications listed in Schedule B—Classifications to the exclusion of any other modern award.
4.2 In this award water industry means the harvesting (including by desalination), transportation, storage, treatment and supply of water to commercial, residential and other consumers and the harvesting, transportation, storage, treatment and recycling of waste water, stormwater and sewerage.
4.3 In this award water industry does not include:
(a) the construction of water industry facilities or infrastructure (other than by employers otherwise within the water industry);
(b) the installation, maintenance and repair of:
(i) water, sewerage or drainage services within buildings, structures or facilities that are not part of the water industry as defined in clause 4.2; or
(ii) the mains, drains and lines immediately connecting to such buildings, structures or facilities,
(other than by employers otherwise within the water industry);
(c) the construction, manufacture, sale, installation or repair of water tanks (other than by employers otherwise within the water industry); or
(d) the processing or supply of bottled water.
4.4 This award does not cover:
(a) employers and employees covered by the Local Government Industry Award 2010;
(b) contractors to owners or operators of water industry facilities or infrastructure, and the employees of such contractors, where such contractors are covered by any of the following awards:
(i) Building and Construction General On-site Award 2010;
(ii) Electrical, Electronic and Communications Contracting Award 2010;
(iii) Joinery and Building Trades Award 2010;
(iv) Manufacturing and Associated Industries and Occupations Award 2010;
(v) Mobile Crane Hiring Award 2010;
(vi) Plumbing and Fire Sprinklers Award 2010; or
(vii) Professional Employees Award 2010,
unless such contractor is a sub-contract operator of water industry facilities or infrastructure;
(c) a chief executive officer, however described, executives and other senior officers not covered by a classification in Schedule B—Classifications; or
(d) an employee excluded from award coverage by the Act.”
[23] The Water Industry Award was made during what was described as Stage 4 of the award modernisation process conducted under Part 10A of the WR Act. The award was made in the context of what was there was categorised as “Water, Sewerage and Drainage Services”. This categorisation (as was the case with many others) reflected the then AIRC list of industries and occupations. 18 From the commencement of the award modernisation process, the AIRC stressed that the descriptions of industries and the grouping of industries was not to be taken as determining the outcome of the process and whether one or more modern awards would be made for the sectors in that grouping. The AIRC also published lists of pre-reform awards, NAPSA’s and enterprise NAPSA’s that appeared to be ones where the parties bound may have an interest in the particular stage of the process. It was noted that some existing awards which may be affected may be on another industry list or may be on more than one industry and/or occupational list. Again, that was not to be taken as any indication of any predetermined outcome about the eventual coverage of any award that may subsequently be made.19 It was to alert diverse parties previously covered by pre-reform awards and NAPSA’s that consideration was being given to the need to make one or more modern awards that may cover, fully or partially, similar employers and employees as described in the scope and parties bound clauses of those awards. We should also note that in the documents published on the website set up for the purposes of the award modernisation process, parties were invited to apply to the AIRC in respect of the awards contained on the various lists. The intention being they could submit an award was on the wrong list or that it was incorrectly categorised on the lists, for example, that it was or was not described as an enterprise award or NAPSA.
[24] The Full Bench published an exposure draft of the Water Industry Award together with a Statement on 25 September 2009 (Full Bench Statement). 20 We should note that Local Government Administration was also contained within this particular stage of the award modernisation process. We make this comment as there were submissions that concerned the potential overlap between local government and the water industry. In short, the outcome sought, and which was accepted by the Full Bench, was that all activities of local government (which would include any water industry activities undertaken by local government) would be covered by the modern award it made titled Local Government Industry Award 2010.21 In both cases it is to be noted that the principal parties who participated were the Local Government Associations (LGA’s) and the ASU.
[25] In publishing an exposure draft of the Water Industry Award the Full Bench said it had proceeded on the basis that the industry is concerned with the harvesting (including by desalination), transportation, storage, treatment and supply of water to commercial, residential and other consumers and the harvesting, transportation, storage, treatment and recycling of waste water, stormwater and sewerage. We here interpose to observe that that description is the same as was eventually contained in the coverage clause of the award when made. The Full Bench referred to the fact that historically the industry had been the preserve of government, most commonly local government. It noted that the water industry was characterised by enterprise awards and NAPSAs which had a public sector history. It indicated there appeared to be only two non-enterprise awards that might have been applicable to the proposed coverage of any water industry award. It referred to the comments it had made for its decision to publish an exposure draft of a modern award for local government which encompassed all activities of local government, including activities in the water industry. It said that it proposed to exclude from the coverage of a modern award for the water industry any employer covered by the proposed local government award. 22
[26] Subsequently, on 4 December 2009, 23 the Full Bench published its reasons for decision (Full Bench Decision) for making Stage 4 modern awards which included the making of the Water Industry Award. It adopted comments it had made earlier in its decision in respect to the Local Government Industry Award (e.g. that service increments in the wages clause were not appropriate). It also decided that senior executives should not be subject to award regulation in the industry. It indicated that in respect of hours of work and rostering it had made a number of changes to the exposure draft so that they moved away from the types of clauses in local government and would now broadly reflect common standards in relation to hours of work and rostering and accommodate concerns to cater for the 24 hours a day, seven days a week nature of operations in the industry.
[27] We note that the Full Bench indicated that the exposure draft of the Water Industry Award was substantially based on a draft proposed by the LGAs 24 however we should comment on the drafting of the coverage clause. Both the LGAs and the ASU filed draft modern awards. In the case of the ASU draft, it contained a reference to several activities it submitted would come within the industry covered by the award. Some of the terminology used in the ASU draft was the same or similar to that which is in the coverage clause of the Water Industry Award. The draft filed by the LGAs contained a definition of sewerage service and one of water service and again, a number of the words used in those definitions are the same or similar to those in the coverage clause in the Water Industry Award. But the definition the Full Bench gave to the industry clearly reflects its own drafting style and wording for the coverage clause, albeit informed by some of the terms of the two drafts we have referred to.
[28] CICL first submitted that for the award to cover an employer, the employer’s business or undertaking must include sufficient of the activities in clause 4.2 as the primary reason for the existence of the business. It says that had the Full Bench intended for the Water Industry Award to cover employers engaged in any one of the activities then it would have used words suggesting that to be so. They could have, for example, used the words “and/or” to have made clear that is the manner in which the coverage clause was to be read. CICL’s submission then went further than its contention that the employer should be in “sufficient of the activities” to be covered, to submit that the award only applies to an employer in the business of “water, sewerage and drainage” as that term had been used for some time in “industrial parlance”. 25
[29] CICL submitted that it was reinforced in its view of the correct interpretation of clause 4.2 by looking at the decisions leading to the making of the award. It then referred to extracts from the Full Bench Statement and Full Bench Decision. CICL referred to the reference made to “water, sewerage and drainage services” and described this as being a single indivisible industry. It highlighted the fact that nowhere in the Full Bench proceedings was there any mention of irrigation cooperatives, areas or schemes. It submitted that taking either a purposive or a literal approach to interpretation, the Water Industry Award applied to the water, sewerage and drainage industry and that did not include the operations of CICL.
[30] The AWU submitted that the Water Industry Award covers an employer who is engaged in any, some, or all of the activities referred to in clause 4.2. It noted that CICL itself had described its operations as primarily concerned with the delivery of water to farms. That operation entails the transport and supply of water to commercial, residential and other consumers. It submitted that most of the industry traditionally had a public sector background. Subsequently, different parts of the industry had been regulated by government, local government and private enterprise. The AWU also noted that no irrigation company had sought an exclusion from the coverage clause of the award.
[31] The AWU referred to the similarity in which the coverage clause in the Building and Construction General On-site Award 2010 26 was drafted in that it referred to its coverage of employers throughout Australia in the “on-site building, engineering and civil construction industry and their employees ...”. It submitted there had never been any suggestion that for an employer to be covered by that award, it must be engaged in each one of those sectors.
[32] The AWU referred to examples of other irrigation companies which accepted the Water Industry Award was the applicable modern award. It noted that Western Murray Irrigation Limited had nominated the Water Industry Award as the relevant award which covered its operations. Similarly, it referred to an enterprise agreement called the Central Irrigation Pty Limited Enterprise Agreement 2012 27 which also identified the relevant modern award as being the Water Industry Award.
[33] We first refer to the weight CICL gives to the term “water, sewerage and drainage services”. It frequently identified that as one indivisible industry and it then categorises the Water Industry Award coverage clause as somehow informed by reference to that industry. There is no warrant for this submission. It ignores the fact that the descriptions that were adopted for the purposes of identifying the four stages of the award modernisation process were by reference to the industry categories that had traditionally been used by the AIRC. The compressed period over which the process had to be conducted did not allow for the additional use of the various descriptions of all of the industries, and sectors within them, existing in the Federal and State industrial systems. On numerous occasions the Full Bench indicated that there was not to be anything read into the description of the industries nor whether any particular pre-existing awards were properly contained wholly or partially within those industries. There is no proper basis in construing the coverage clause of the Water Industry Award to suggest it would only cover employers who undertook all of the activities that had been undertaken in the past by diverse entities providing water, sewerage and drainage services. The history of the water industry as originally being within government and local government control and then subsequently being undertaken by private enterprise rather suggests that what has been occurring is that some parts of activities previously wholly undertaken by government were devolving. There is no warrant to suggest that there was any intention for the coverage clause to only encompass employers who undertook the same range and mix of activities as had traditionally been conducted by government or local government.
[34] Next we refer to the terms of the coverage clause. It is an industry award and therefore clause 4.2 describes the various types of employers’ business activities carried out in the industry. The word “and” is used in three places in the clause. The use of that word however does not, in our opinion, suggest all the activities mentioned in the clause should be read conjunctively. The proper way to read the clause, given the context and purpose of the clause, is that it includes any employer conducting any of those activities. The activities in the clause should be read as alternatives. In our opinion, an employer does not have to undertake work in each particular activity within the description. The coverage clause sets the boundaries of the industry only.
[35] Our interpretation of clause 4.2 is also consistent with the structure of the clause which itself is broken into two parts. The first relates to the harvesting, transportation etc of water to commercial, residential and other consumers and the second to the harvesting, transportation etc of wastewater, stormwater and sewerage. It could not properly be suggested that an employer has to participate in both of those sectors of the industry to be covered by the award. Further, to illustrate that the construction urged by CICL would be absurd, an employer, in addition to doing all the activities in the clause, would need to do them for commercial, residential and other consumers and presumably not for only one of this group.
[36] The exclusion clause is also consistent with our construction. We refer to the wording in clause 4.3(a) as an example. That excludes from coverage the “construction of water industry facilities and infrastructure (other than by employers otherwise within the water industry).” The exclusion would not be necessary if, to be in the industry, the employer had to conduct all of the activities in clause 4.2.
[37] This construction is also consistent with clause 4.4(b). That excludes from coverage “contractors to owners or operators of water industry facilities or infrastructure” where such contractors are covered by any one of a number of listed modern awards, “unless such contractor is a sub-contract operator of water industry facilities or infrastructure...”. The exclusion indicates that subcontract operators of water industry facilities or infrastructure are covered by the award. These operators are not involved in every activity listed in the definition of water industry.
[38] We now refer to the business and activities of CICL. During the hearing CICL was keen to distance itself from any reference to the water industry. Although Mr Culleton likened CICL to a truck carting a single product (i.e. water), 28 he otherwise avoided any reference to water in describing CICL’s activities. We have earlier referred to his description of CICL being first and foremost an infrastructure operator. However, this is not how CICL has described itself on all occasions. It has said that is the delivery of water that is its core business.29 In its application for the making of a modern enterprise award, CICL described its operations as primarily concerned with the delivery of water to farms in the Coleambally Irrigation Area.
[39] Firstly, as we have earlier indicated, the coverage of the award is intended to extend to certain operators of water industry infrastructure. Next, in our opinion, the delivery of water is the core of CICL’s business and its key objective. That entails the transportation and supply of water to its members and customers. The fact it does this by way of its infrastructure, which in turn needs to be maintained so as to operate as efficiently and effectively as possible, does not alter our conclusion.
[40] Next we refer to the classifications in the 2004 Award and those in the Water Industry Award. We have earlier indicated that CICL submits that item 4(5)(b) requires that any modern award that is identified is to be one with classifications which would cover all the classifications covered by the 2004 Award. It submits the Water Industry Award does not. We refer first to the classification criteria, which is described as skill descriptors, in Schedule B of the Water Industry Award. They are very broad and general. Additionally, they contain a reference to licences or certificates which may be needed for the operation of machinery, plant or tools. There are 10 levels in Schedule B and they are sufficiently broad to encompass all but the most senior executives of CICL. The wording of Level 10 suggests that it does not extend to senior executives. It provides that “This level includes senior managers who report to senior executive officers”. This is consistent with clause 4.4(c) which provides that the award does not cover “a chief executive officer, however described, executives and other senior officers not covered by a classification in Schedule B-Classifications ...”.
[41] We have compared these levels with the five levels and associated salary level work descriptions in the 2004 Award. With the exception of Mr Culleton, the Chief Executive Officer of CICL, no other employee was identified who would not be able to be properly classified under the Water Industry Award. Insofar as the Chief Executive Officer is concerned we assume that CICL classifies him at Level Five of the 2004 Award. There is no express reference in the salary level work description at that level to an employee who is a Chief Executive Officer (or indeed any other position) and we read the types of responsibilities described in this level as more appropriate for senior managers rather than the most senior executive of CICL. However, we also note that an indicative task of a person at this level is “Supervision and operations of all activities associated with the daily function of the business”. We accept that is apt to describe the type of responsibility a Chief Executive Officer or a Managing Director may have.
[42] The question we are considering is if item 4(5)(b) requires us to decide that the Water Industry Award classifications cover all of the employees classified under the 2004 Award or whether the consideration is whether it covers employees classified under the 2004 Award albeit not every one of them. With the proviso we have referred to in the preceding paragraph, this issue arises as the 2004 Award extends to cover the Chief Executive Officer of CICL and the Water Industry Award would not. We are conscious of the fact that a finding one way or the other by reference to this item will not result in any particular outcome in the exercise of our discretion to make or not make a modern enterprise award. But, as the matters listed in item 4(5)(b) “must be taken into account” in arriving at that conclusion, they must be considered and be given appropriate weight. 30
[43] We prefer a construction of this item allowing for the identification of a modern industry award which may not necessarily contain a classification level for every employee classified under the relevant enterprise instrument. We do not accept it is necessary to read the words in the item “cover the persons” as meaning cover all or each of the persons. Our preferred construction is also consistent with the reference in the item to modern awards that are likely to be made in the Part 10A process. It would not have been possible in that case to decide that every one of the classifications in an enterprise instrument would also be contained in such an award when made.
[44] Our construction would avoid what, in our opinion, would be an unintended result in a case of an enterprise instrument that had classifications which were outdated or no longer required. It would be an unusual requirement to nonetheless allow only for a modern award to be identified which had all the corresponding classifications, including the defunct ones.
[45] This application also provides another example of an unusual result if our preferred construction was not adopted. In the alternative this example provides a discretionary consideration to be taken into account, deciding the weight to be given to this item. The proposed award classification definitions differ, particularly at Levels Four and Five, to those in the 2004 Award. Level Five in the proposed award, for example, refers specifically to an employee in a senior management position (there is no such reference in the Level Five of the 2004 Award). Further there is no indicative task of an employee at this level supervising “all” core functions. It was the existence of this indicative task which was the reason for our finding that the Chief Executive Officer appeared to fall within the Level Five classification of the 2004 Award. If, for example, we were comparing the classification criteria in the Water Industry Award with that in the proposed award, it is strongly arguable they would cover all of the comparable employees. In this respect we note that in the proposed award the definition of “employer or company” means “CICL or the Chief Executive Officer...”. That definition, together with the new criteria for Level Five, would suggest the Chief Executive Officer would not be properly covered. So, although it may be found that all the classifications covered by the 2004 Award are not covered by the Water Industry Award, and we need to give this weight, we are doing so knowing CICL does not seek to retain in any new award the same classification criteria as is in the 2004 Award. We have not found the application of this item to the facts in this case to have been straight forward.
[46] If our preferred construction is incorrect then we acknowledge the Water Industry Award does not cover a person who is a Chief Executive Officer. Accordingly, there does not appear to be one modern award which would cover all of CICL’s employees. We should here note that other than a brief reference in CICL’s submission to the existence of a modern award which may cover employees principally engaged in clerical work (which, we assume to be a reference to the Clerks-Private Sector Award 2010 31) no party referred to any other modern award in the context of this item to which we need give consideration.
[47] Before we leave consideration of this item we wish to make one final remark. We suspect in only a small number of enterprise instruments will the Chief Executive Officer be covered. Traditionally, a person at that level has not been covered by awards. In fact, outside of public sector type employment, neither have senior executives been covered. That this is so is reflected in the requirements of item 8(8) of Schedule 6. Item 8 deals with the way in which coverage in modern enterprise awards is to be expressed. Item 8(8) reads as follows:
“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.”
[48] It would appear that regardless of whether the 2004 Award covered the Chief Executive Officer and that CICL sought to retain that coverage in the proposed award, this item would arguably not allow for such coverage in any modern enterprise award which may be made. As we have decided to not make a modern enterprise award we do not need to consider the terms of this item any further.
(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)
[49] CICL submitted that there was no relevant modern award. It did not address this matter further. On the basis of the conclusions we have reached by reference to item 4(5)(b), we intend to address this matter.
[50] We will refer to the key provisions in the Water Industry Award. In doing so, we will generally not refer to the standard provisions in the award. 32 Nor do we intend to refer to provisions dealing with hours of work for employees of a type that CICL do not engage. In this respect we mean, for example, the shift work provisions in the Water Industry Award. We understand there are no shift workers at CICL.
[51] Clause 7 is the award flexibility clause, a standard clause in modern awards. It allows an employer and an individual employee to agree upon the variation of the application of certain terms of the award to meet the genuine individual needs of the employer and individual employee. The terms that may be the subject of an individual flexibility agreement are arrangements for when work is performed, overtime, penalty rates, allowances and leave loading.
[52] Clause 10 refers to three employment categories; full-time, part-time and casual. A full-time employee is a person engaged to work an average of 38 ordinary hours per week.
[53] Clause 12 is titled “Redundancy”. It provides that redundancy pay is provided for in the National Employment Standards (NES). It deals with the ability of an employee to leave during the notice period and the payments that are to be made as well as a job search entitlement. Clause 12.5 is titled “Transitional provisions - NAPSA employees”. 33 NAPSA means a notional agreement preserving State awards. Subject to certain conditions it retains an employee’s entitlement to a level of redundancy pay prescribed, which exceeds the redundancy pay under the NES. The clause is to cease to operate on 31 December 2014. We are aware that in the context of the four yearly review of modern awards, applications have been made for the Commission to deal with transitional provisions in those awards.
[54] Clauses 13 and 14 deal with classifications and minimum wages. We deal with minimum wages first. There are 10 classification levels in the award with minimum weekly rates ranging from $665.22 to $1070.90. The skill descriptors for the various levels are referred to in the next paragraph. We should here identify the wages for some of the levels. The entry level for trade and technical employees is Level 4 which has a minimum weekly rate of $724.50 (i.e. the same as the C10 rate). Level 7 covers specialist technical employees and is the entry level for graduate professional employees, the minimum weekly rate for whom is $847.60. The types of employees covered by Level 10, the highest level, are referred to in the next paragraph.
[55] Clause 13 requires that all employees are to be classified according to the level structures set out in Schedule B to the award. Schedule B describes the award structure as consisting of skill based classifications defined according to a number of skill descriptors. The positions may also require employees to hold and maintain appropriate licences, certificates for the operation of machinery plant or and/or tools. In each of the classification levels the categories of the descriptors are the same. They are authority and accountability, judgement and problem solving, specialist knowledge and skills, management skills, interpersonal skills and qualifications and experience. We have considered all of the classification levels and their potential applicability to CICL’s employees. Level 1 is intended to cover entry-level operational employees with minimal experience and qualifications, Levels 2 and 3 cover operational employees with relevant water industry or equivalent expertise (with Level 3 being the entry-level for administrative employees). Level 4 covers operational and administrative employees undertaking duties and responsibilities in excess of Level 3 and is the entry level for technical and trades employees. The next levels cover technical, administrative, trades and specialist technical employees. The levels then extend to graduate professional employees and professional and specialist provisions. Level 9 covers key specialists, experienced professionals and those undertaking a management function. Level 10 is for employees with a management focus on attaining operational and strategic objectives. As we have earlier noted this level includes senior managers who report to senior executive officers.
[56] The skill descriptors in each of the categories are broad and capable of application to the various sectors within the water industry. In our opinion, on the basis of the evidence before us, they would allow for the classification of employees of CICL.
[57] Allowances are dealt with in clause 19. The allowances are not extensive and concern skill, disability and reimbursement payments. We observe that there are allowances in relation to the holding of appropriate first aid qualifications, a vehicle allowance, for transfer, travelling and working away from an employee’s normal starting point, excess travelling time and fares and for adverse working conditions.
[58] Hours of work are dealt with in Part 5. Clause 25.2 provides that ordinary working hours are an average of 38 hours per week over a period of 28 days and are worked within the span of 6am and 6pm, Monday to Friday. An employee may work up to a maximum of 10 ordinary hours on any day or, by agreement with the employer, up to a maximum of 12 ordinary hours.
[59] Clause 26 deals with overtime and that is to be paid at the rate of time and a half for the first two hours and double time thereafter. Overtime on a Sunday is paid at the rate of double time. The clause allows for an employee to elect, with the consent of the employer, to take time off instead of payment for overtime. It also provides for call back, on-call and remote response allowances or payment. 34
[60] Clause 27 deals with annual leave which is to be as provided for in the NES. The award also provides for the payment of an annual leave loading of 17.5%. Entitlements to personal/carer’s leave and compassionate leave, parental leave and community service leave are as provided for in the NES. Public holidays are also as provided for in the NES and the award allows for the substitution of a public holiday with an alternate day and for the rate at which an employee is to be paid.
(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
[61] In paragraph [4] we observed that other than for modern enterprise awards which are made under Schedule 6 of the Transitional Act, no new enterprise awards will be made. Accordingly, the terms and conditions applying in any industry will not be regulated by any new modern enterprise award other than any such award that may be made under Schedule 6.
[62] We were not provided with sufficient information which would allow us to assess the extent to which the terms and conditions in the industry are reflected in the 2004 Award. CICL submitted that any such comparison would be of limited value. It referred to Renmark Irrigation Trust and said it was not of any value to compare it as it was a statutory corporation with public sector terms and conditions. It also referred to Murray Irrigation Limited and said its award was similar to the 2004 Award but the classification structure was different. Murrumbidgee Irrigation Limited was said to be completely different as its award incorporates the terms of a number of other awards and agreements. We do not know what those terms are. CICL referred to Goulburn Murray Water, which it described as a State owned corporation operating in Victoria. However, it did not compare the terms and conditions with the 2004 Award, but rather distinguished it on the basis of its size, scale and number of employees.
[63] We note there are five irrigation corporations in New South Wales, of which CICL is one. The others are Murrumbidgee Irrigation Ltd, Murray Irrigation Ltd, Western Murray Irrigation Ltd and Jemalong Irrigation Ltd. These companies were acknowledged by Mr Culleton. The AWU also referred to these companies and indicated it had members working for Murrumbidgee Irrigation Ltd, Murray Irrigation Ltd and Western Murray Irrigation Ltd. From the Commission’s website we note that of this group, only CICL and Murray Irrigation Ltd (also represented by Mr Coyne) have made an application for a modern enterprise award. 35 As no such application was made by 31 December 2013 the enterprise instruments previously covering the other irrigation companies terminated on that day.36 It is likely therefore those companies are now covered by a modern award and most likely the Water Industry Award. Western Murray Irrigation Ltd indicated in its recent enterprise agreement documentation that the Water Industry Award was the appropriate underlying award.37
[64] There are two other applications which have been made for a modern enterprise award to replace an enterprise instrument which instrument appears to cover employers who would otherwise be likely to be covered by the Water Industry Award. 38 They are applications to make a modern enterprise award to replace the South East Water Limited Senior Officers and Managers Award 200339 and Sydney Water Award 2004.40 There are no other awards which appear to cover water or irrigation activities in the list of all the awards which are the subject of an application for a modern enterprise award.
[65] In the hearing before us reference was made to irrigation companies outside of New South Wales. One was Central Irrigation Pty Ltd operating within South Australia and it appears that company has acknowledged it is covered by the Water Industry Award. Another in South Australia is Renmark Irrigation Trust which had a NAPSA 41 which would now have terminated. It is likely this entity is now covered by the Water Industry Award.
[66] The parties did not address us on the incidence of award coverage outside the irrigation companies. A search of awards (other than modern awards) on the Commission’s website which cover businesses undertaking activities which suggest they would be covered by the Water Industry Award, lists numerous awards. The best we can say is that other than for CICL and the other three applicants which have made an application for a modern enterprise award it is likely the rest of these awards all terminated on 31 December 2013. It is also likely the employers would now be covered by the Water Industry Award or possibly the Local Government Industry Award.
[67] Finally, we note that the Commission’s website also lists a large number of enterprise agreements which were not mentioned in the proceedings before us. We were not addressed on the relevance of such agreements. Accordingly, the only comment we can make is that there are numerous agreements covering activities which would appear to be in the water industry, covered by the Water Industry Award, and which have identified that award as the appropriate award for the purposes of the better off overall test.
(e) The extent to which the enterprise instrument provides enterprise-specific terms and conditions of employment
[68] We wish to first make some general comments about this item and the application of matters which it requires be addressed to the overall discretion to make a modern enterprise award and the content of such an award.
[69] We first note that neither this item nor any other requires a Full Bench to take into account the terms of the proposed modern enterprise award which is sought. One would have thought it an important, and perhaps principal reason for this exercise, was so as to allow, in a sufficiently meritorious case, for the retention of terms and conditions which were of the type envisaged by item 6(2), i.e. those which had been developed in relation to an enterprise. But it seems possible, in the sense of there being a competent application, for the terms and conditions of the enterprise instrument and those sought in the modern enterprise award to not bear a great deal in common. For the reasons we give, we believe this consideration would be one proper to weigh in the exercise of a Full Bench’s discretion whether or not to make an award and determining the content of that award.
[70] Item 6(1) provides that the modern awards and minimum wages objectives apply to the making of a modern enterprise award. Item 6(2) provides that in applying these objectives we 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 awards objective.” The words “that have been developed” suggest the consideration is to the reproduction of existing tailored terms in the enterprise instrument in the proposed modern enterprise award. The extent to which this modern award exercise process may properly allow the making of an award with entirely new terms with little or no similarity to existing terms, even if said to be tailored to the enterprise, is a matter that would, in our opinion, be a relevant consideration. The wording of item 6(2) does not suggest that we start from a “clean sheet”. It very much suggests consideration is to be given to the existing terms in the enterprise award that are said to be tailored. It is not apparent that this exercise is one allowing, in effect, the conduct of an arbitration as to the terms and conditions of the modern enterprise award divorced from, and uninformed by, the existing terms and conditions.
[71] We acknowledge that many existing terms may not be ones which the Act would allow to be carried over into a modern enterprise award. For example, in the case of an enterprise instrument which may be a NAPSA previously made under State legislation, some provisions may reflect State legislative requirements or State test cases. It may be that such provisions cannot, consistent with the NES or other provisions in the Act, be contained in a modern enterprise award. Similar considerations may also arise in the case of enterprise instruments which were previously known as pre-reform awards.
[72] We also acknowledge some provisions of Schedule 6 which suggest that although we are to recognise the existing terms they, or other terms in a modern enterprise award, may be modified in certain circumstances. In this respect we note the terms of item 4(5)(f). It suggests (as does paragraph 269 of the revised explanatory memorandum) that the adoption of existing terms which are said to be tailored to the enterprise may be modified in the event, for example, they would give a particular financial advantage or disadvantage to the enterprise. Other items also suggest there may be some modification of such previously existing terms. In this respect we note the terms of item 7(2) which allows the Commission to phase in an increase in an employee’s entitlements and item 12 which allows for the making of a take home pay order as a consequence of a reduction in pay attributable to the modern enterprise award.
[73] Having made those general comments we now turn to the terms of the 2004 Award. We will only refer to the key provisions in that award. In doing so we note that CICL submitted that clauses 6.2, 15, 16.3, 23, 25.1, 30 and Schedule A were designed to deal with CICL’s operational needs, the employees needs and job requirements. 42 It described them as the core provisions.
[74] Clause 6 is titled “Contract of employment and related issues”. Clause 6.1 provides that all employees “other than casual employees” shall be permanent employees and employed by the week. Clause 6.2 is titled “Performance of duties”. It contains a requirement that all employees are to be fit and able to carry out the work they perform, those required to work in or near the water distribution system are to have documentary evidence to prove their ability to swim and, where the work requires it, they must hold a current driver’s licence.
[75] Clause 6.7 deals with voluntary redundancy. It prescribes for certain conditions that are to attach to an offer of voluntary redundancy. Of particular significance is a severance payment at the rate of three weeks per year of continuous service up to a maximum of 39 weeks. Additionally, in certain circumstances additional payments may be made between two and eight weeks pay. There is also a one-off payment of $4000 “to help meet job search costs that a redundant employee may face”. 43
[76] Clause 6.11 relates to severance payments to be made in the event of a compulsory redundancy. The severance payments are for periods of continuous service from one year to “six years and more”. Some of the payments are the same as, or close to, the NES but in other cases, for example employees with between three and less than six years service, the payments are in excess of those provided for in the NES.
[77] Clause 9 contains a definition of “Salary”. It means “the ordinary time rate of pay for the employee concerned”. Clause 12.1 provides that salary remuneration is in the form of an annualised amount which is “all inclusive”. It is to be paid according to skill levels set out in Schedule A to the award. It provides that the remuneration is “in consideration of base rate salary, industry allowances and the like, shift rates, training incentives and rewards, special working conditions allowances, hardship payments and all other matters relating to the performance of work”.
[78] Clause 12.2 provides that each skill level has a minimum and maximum annual salary which is designed to recognise differences in skill and responsibility of employees. Although out of sequence, we will now refer to Schedules A and B. Schedule A is titled “Salary level work description”. In respect of Levels One, Two and Three there is a reference to two broad categories. One is to “Administration” and the other, “Water Distribution, Maintenance, Construction, Monitoring and Testing”. Within the administration category there is a list of the sorts of tasks or duties that employees at that level will perform. In relation to the water distribution etc employees, similarly there is a list of the types of tasks they may undertake including reference to levels of knowledge of aspects of water measurement, quality, distribution and supply. There is also reference made to the types of equipment they may operate. Level Four applies to employees capable of working alone and experienced in the implementation of management systems. Some examples of tasks they may perform are given - preparing reports, compliance with licence conditions and maintenance of data and records. Level Five, which is the highest level, has already been referred to by us. It covers employees with sufficient experience and knowledge to coordinate work in a team environment. They are able to operate without supervision, work from complex instructions/procedures and provide job training. It should be noted that neither Levels Four nor Five contain, like the lower levels, the two categories of employees (i.e. administration and distribution etc.). The brief descriptors and few indicative tasks in them are broad and generic. It is only the reference to “LWMP” at Level Five, which we understand means Land and Water Management Plan, which is in any way specific to CICL.
[79] Schedule B is titled “Common salary points applicable to this award”. The schedule contains three columns, the first identifying salary points from 10 through to 113. The second column identifies a lower salary limit in relation to each of those salary points and the third column identifies an upper limit.
[80] Clause 15 deals with ordinary hours of work. As it is said to be one of the core provisions and provides enterprise specific terms we should reproduce the whole of it. It is in these terms:
“15. ORDINARY HOURS
15.1 General
15.1.1 In recognition of the particular circumstances which apply to the cost-effective delivery of water to irrigators, maximum flexibility of working days and times is essential. Consequently, work patterns, whether on a daily, weekly or seasonal basis, shall, as far as practicable, be tailored to the needs of customers. Generally, only employees involved in water distribution will be expected to work outside weekdays; however, some circumstances may involve other staff in weekend work.
15.1.2 When employees who are not rostered as part of normal working arrangements are required to work Saturdays, Sundays or public holidays, the hours worked will be paid as overtime.
15.2 Basis for Ordinary Hours
15.2.1 The basic unit of determining time worked shall be an average 38-hour week, including authorised paid absences.
15.2.2 In some instances, tasks rather than hours will be an important job feature. In the case of all scheduled maintenance, construction, distribution and administration work, an employee will receive five working days' notice of proposed alterations
to normal hours.
15.2.3 The roster associated with water distribution shall be based on a 38-hour week using an annualised hours concept. There will be no impediment to employees and supervisors agreeing to work greater than or less than nine consecutive days, subject to the employee being able to perform those duties in a safe manner. The actual initial roster will be based upon a 9:4 - 9:5 rotation; however, the roster and number of divisions shall be flexible to allow both CIC and the employees to establish the required level of service to all customers and to provide leisure alternatives to the employees. Where a dispute arises in respect of this subclause, the 9:4 - 9:5 roster and the current number of divisions will be retained while the dispute is settled.
15.2.4 An employee with the consent of their supervisor can vary the daily hours of work, providing a total of 160 hours are worked over a four-week cycle. The supervisor may stipulate core hours on a daily basis during which the employee must be available to perform their work duties. Such agreement shall be reviewed between the supervisor and the employee concerned on a month by month basis. (As explanation, this means one RDO can be accrued or taken per four-week cycle. This is not in addition to banked hours.)
15.3 Start and Finish Times
Actual starting and finishing times of individuals shall be determined by references to their particular work area and work loads, both geographically and on a divisional basis. Normally, ordinary hours are to be worked between 6.00 am and 6.00 pm. A minimum 10-hour break between the completion of one day's work and commencement of another shall be taken or overtime to be paid until the break is achieved.
15.4 Working Patterns and Disputes
In the implementation of working hours, the significant determinant is the cost effective and safe delivery of services; however, all reasonable effort should be made to accommodate individual employee's needs. Wherever possible, hours should be constructed to allow maximum access to meaningful leisure time periods. Any dispute in relation to work patterns shall be resolved using the disputes-settling procedure in this Award.”
[81] Clause 16 provides that an employee who is recalled to work is to be paid a minimum of four hours work for each time they are so called. Clause 16.2 provides that a minimum of three hours (and, we confirm it does read three hours) is not to apply to employees who reside on or adjacent to the premises and/or returns to the place of work on a customary basis for a specific task. In this case they are to be paid for the time actually worked. Clause 16.3 also provides “this provision” (without making it clear whether it means 16.1 or 16.2) is not to apply to water distribution employees provided further that if they had completed their normal work cycle and then been required to attend work within the same 24 hour period, they will be paid for time spent travelling to and from their residence.
[82] Clause 19 deals with overtime. All work in excess of the normal work cycle is to be paid at time and a half for the first two hours and double time thereafter. Overtime on a Sunday is to be paid at the rate of double time and on a public holiday double time and a half. CICL and an employee may agree to take leave in lieu of an overtime payment.
[122] It is not sufficient for CICL to justify this clause by simply asserting it reflects a provision which has been tailored for its employment arrangements. Without having some information about the monetary value of its component parts, we simply do not know if this is a proper description for the clause. We are not able to find that the salaries constitute a fair and relevant minimum safety net in terms of the modern awards and minimum wages objectives. We are unable to find that the provisions are consistent with the modern enterprise award objective.
[123] It was not suggested that the salaries had been developed to accommodate the particular way hours are worked or to include, for example, overtime, weekend work or penalty rates. Hours are worked at CICL generally in a set time span, Monday to Friday, overtime is an additional payment, there are no shifts and any weekend work was rare and principally confined to two employees.
[124] As for the quantum of the salaries in the 2004 Award, we have formed the view that they have been largely ignored since 2004. There is no evidence any consideration was given at any time prior to the drafting of the proposed award as to what the award salaries would be had they been adjusted in accordance with State or Federal wage case. Although the CICL witnesses said the 2004 Award had been adjusted from time to time in accordance with the State wage cases, it appears no adjustments were made from 2004 onwards. Mr Coyne described the award as having been “frozen in aspic as of 2004.” 52 It is likely that after March 2006, when s.44C of the Industrial Relations Act 1996 (NSW) converted the award to an enterprise agreement, its salaries were not adjusted by virtue of any State wage case.
[125] We have earlier noted the objective of the 2004 Award as set out in clause 3. That was to manage the transition from public to private ownership and to act as a safety net for any future enterprise agreement. The objective concerning transition from public to private ownership has been achieved and the 2004 Award no longer serves this purpose. The function of the 2004 Award underpinning enterprise agreements is a matter we comment upon in paragraphs [130] to [136].
[126] We have also earlier referred to clause 14 of the 2004 Award. This is titled “Performance appraisal and rewards”. It makes clear the intention of CICL was to move on from the salaries contained in the award and develop a new salary remuneration system based on performance-CEDEPS. That system was to be developed “over the period of this agreement” to replace the salary scales with a system based upon the annual salary. It is not entirely clear what all of this means but we mention it as it suggests that at the time the 2004 Award was made, there was no intention to retain the salaries and scales first put into the consent award but rather to develop a new salary system.
[127] Apart from the concerns we have expressed about the terms of proposed clause 14.1, there is an additional consideration about whether an annualised salaries clause would be appropriate for a modern enterprise award should we have decided to make one. Item 7 of Schedule 6 makes it clear that Division 3 of Part 2-3 of the Act applies to this exercise. Part 2-3 is titled “Modern Awards”. Division 3 contains a number of provisions which describe what terms can, and cannot be contained in a modern award. Section 139 lists terms that may be included and s.139(1)(f) is of particular relevance. It reads:
“(f) annualised wage arrangements that:
(i) have regard to the patterns of work in an occupation, industry or enterprise; and
(ii) provide an alternative to the separate payment of wages and other monetary entitlements; and
(iii) include appropriate safeguards to ensure that individual employees are not disadvantaged;”
[128] On the evidence and submission before us we would have had difficulty applying these considerations to the salaries clause sought by CICL.
[129] In deciding whether the salaries can be described as terms or conditions tailored to reflect employment arrangements that have been developed for CICL, it is instructive to look at the enterprise agreements that have applied to CICL and its employees since 2001. It was said that the salaries in the 2004 Award had provided the base for enterprise bargaining. Our consideration of the terms of those agreements in fact supports the conclusion that the 2004 Award salaries were not considered to be of any relevance to the salaries agreed in each of those agreements.
[130] Since 2001 CICL has entered into enterprise agreements with its employees which have been certified or approved by the AIRC, the Workplace Authority, Fair Work Australia and the Commission. We will refer to these agreements as the 2002, 2004, 2006, 2008, 2010 and 2012 agreements. In each case the agreement was expressed to cover all employees of CICL. None of them had any registered organisation of employees as a party. Other than for the 2012 agreement, each operated for a term of approximately two years. The 2012 agreement operated for a period of around nine months. They all contained remuneration provisions which express the payments to be made to employees as an annual salary. In each case the salary was expressed as incorporating the same types of components (but not always in the same terms) as was contained in clause 12.1 of the 2004 Award.
[131] In the case of the 2002 and 2004 agreements, there was a reference to one annual salary referred to as being the minimum adult annual salary under that agreement. In the case of the 2006 and 2008 agreements, no minimum salary is identified at all. In each case the agreement identified percentage increases that would be made to salaries during the life of the agreement. We read that as a reference to salaries that were actually then being paid. In each case those salaries were referred to in the agreements as being salaries assigned to employees upon engagement and, in respect of those, industry standards and market rates would be considered for the purposes of setting and adjusting them from time to time. There was no reference to the salaries or classifications contained in the 2004 Award (nor, in the case of the 2002 enterprise agreement any reference to any then applicable underlying award wage or salary rates).
[132] We now refer to the 2010 agreement. Clause 35.4 titled “Minimum Salary” provided that the minimum salary for a full-time adult non-trainee is $32,000 per annum. There was no other salary identified. The agreement provided that salaries would be increased during the life of the agreement by certain identified percentages. Like the earlier agreements, we read that clause as relating to increases to the actual salaries that were then being paid to employees. The agreement contained no classification levels or classification criteria.
[133] The employer’s declaration in support of the agreement covering the better off overall test did contain a reference to the 2004 Award rates for the purposes of identifying the amount by which the “EBA salaries” exceeded those amounts. The salaries of employees ranged from $32,000 to $120,816.
[134] We now refer to the 2012 enterprise agreement. That agreement contains one adult minimum salary only and that is $32,500. 53 It provides for one percentage increase during its life (which, as we have earlier noted was for a period of around nine months). That percentage increase was to be to the salaries that were actually being paid to employees. There were no classification levels or criteria contained in it and no reference to any other salaries other than the minimum. We note that an undertaking was given that the rates that would be paid would not be less than those identified as the minimum rates attributable to each of Levels One to Five in the 2004 Award. The salaries of employees, upon approval, ranged from $37,892 to $130,046.54
[135] In our opinion, the content of the enterprise agreements supports our conclusion that the salaries and the salary levels in the 2004 Award had long ceased to have any relevance to CICL and its employees. It was not considered necessary to include in those agreements any salary levels or classifications other than one minimum annual salary. This does not suggest to us the award salaries and salary levels had been tailored to reflect employment arrangements that had been developed to meet the particular needs of CICL.
[136] There are a few other provisions which the AWU identified as being ones in the 2004 Award but which are not contained in the proposed award. It submitted that these were relevant for us to take into account in the event we decided to make a modern enterprise award. We should indicate that we have also given consideration to these additional provisions in the context of whether we should or should not make an enterprise award. We have done so as it is appropriate we give consideration to the potential loss of any entitlements that had previously been contained within the 2004 Award, should a modern enterprise award not be made.
[137] The first of these provisions relates to superannuation. Clause 33 of the 2004 Award provides that an additional 2% employer contribution would be paid in addition to the minimum amount required by relevant superannuation legislation. There is no additional payment that is required by the superannuation provision in the proposed award. CICL acknowledges this and explained that it was reluctant to put anything in the superannuation clause in the proposed award that was not standard in other awards. It indicated that the 2012 enterprise agreement provided for an additional 3% to be paid over and above the obligatory superannuation contributions.
[138] Next the AWU identified the additional week of annual leave provided for in clause 21.4 of the 2004 Award for water distribution employees who work a roster, which is not contained in the proposed award. CICL indicated that it was not its intention to deny any employee who was regularly rostered on weekends to access that additional week. 55 It said that it is unlikely that the work patterns of any employee were such as to attract that entitlement. Nonetheless, it would be prepared to include such a clause in the proposed award.
[139] The AWU also identified the casual conversion clause in the 2004 Award as having no equivalent clause in the proposed award. CICL submitted such a clause was not necessary as it rarely employed casuals and as such it was not relevant to its business. 56
[140] We have earlier noted that item 6(1) provides that the modern awards and minimum wages objectives apply to the Commission making a modern enterprise award. Little was said by the parties about the minimum wages objective. We note that a number of the matters referred to in that objective, although directed to fair minimum wages only, are the same or similar to the matters in the modern awards objective. CICL made brief submissions in relation to the modern awards objective. Those submissions were directed to supporting the terms of the proposed award as being consistent with the objective and/or not contrary to it. Where relevant, and in the context of dealing with a particular provision, we have commented on one or other of the considerations the modern awards objective directs attention to. We should here refer to the written submissions made by CICL as to why we should find the proposed award would achieve that objective. Firstly, it submits that the quantum of salaries in the proposed award would support the relative living standards and needs of the low paid, at least in respect of the lowest salary level. 57 Nothing more was said about this consideration and it is sufficient that we acknowledge that the salary levels claimed would support the needs of the low paid without finding that in fact each of the employees at CICL could be classified as low paid. We have earlier made a finding about whether the salaries constituted a safety net of fair minimum wages and/or a term of a fair and relevant minimum safety net. No submission was made concerning relative living standards.
[141] Next CICL submits that the proposed award would encourage collective bargaining. 58 We accept that for CICL and its employees, it is likely a modern enterprise award in the terms sought would have no negative impact on them continuing to engage in collective bargaining as they have been doing for many years. In our opinion, this would be the likely outcome whether or not we made a modern enterprise award.
[142] The need to promote social inclusion is said to be achieved by the variety of employment categories contained in the proposed award. 59 Similar employment categories are in the Water Industry Award. It was not suggested that additional employees may be engaged in the event the proposed award was made, nor was it suggested that employees had sought to be engaged in a contractual capacity which would not be accommodated by the Water Industry Award. In this case this is a neutral consideration.
[143] Next CICL submits that the proposed award would promote flexible modern work practices. 60 In this respect it identifies the hours provisions in particular as being as being “the epitome of flexible modern work practices”.61 We have taken this submission into account. The hours provisions in the Water Industry Award would allow for the same flexibility as CICL submits it requires. Next CICL submits that the proposed award would not offend the principle of equal remuneration. There is no suggestion in any of the submissions or evidence to the contrary.62 CICL also submitted that there would be a positive impact on productivity and that the impact on employment costs would be benign if the modern enterprise award it seeks was made. In our opinion, this would also be the outcome if the Water Industry Award covered CICL and its employees. There was no suggestion that making the proposed award would have any negative impact on employment growth, inflation and the sustainability, performance and competitiveness of the national economy.63
[144] CICL submits that the proposed award would comprise a simple easy to understand, stable and sustainable award and would avoid unnecessary overlap of modern awards. 64 We accept this submission and believe it is equally applicable to the Water Industry Award covering CICL and its employees. Finally, we note that s.134(1)(da) was not in operation when this matter was heard but it applies to any modern award made or varied after 1 January 2014. The terms of the proposed award provide additional remuneration for working the types of hours, shifts and days referred to in that section. Similarly, the Water Industry Award contains provisions for the payment of additional remuneration for working on these occasions.
[145] In addition to the above considerations, we gave weight to the fact that the Water Industry Award would cover the whole of the activities or business of CICL. It is the award for the industry and that which covers other irrigation companies and companies in other sectors of the water industry. We exclude from this comment the very small number of companies who have made an application for a modern enterprise award. The vast majority of the industry is now covered by the Water Industry Award or, to the extent an employer’s activities are carried out by local government then the Local Government Award. We are not persuaded a sufficiently meritorious case had been made out to exclude CICL from its coverage.
[146] The Water Industry Award contains sufficient flexibility to accommodate the work patterns of CICL and the needs of its employees. We are not persuaded it will impose on CICL any additional costs or constrain the manner in which it operates.
[147] The classification criteria and skill descriptors in the Water Industry Award are sufficiently broad to enable all but the most senior of CICL’s employees to be encompassed within one of its 10 classification levels. The fact that some of its most senior employees may not be covered is not, for the reasons we have earlier given, of any great weight.
[148] The history of enterprise bargaining at CICL and its intention that such agreements will be the primary instrument regulating terms and conditions satisfies us that superior terms employees had under the 2004 Award, particularly the enhanced redundancy payments in the event of voluntary redundancy, are not likely to be lost.
[149] The evidence and material relating to the operations of CICL and the needs of its employees do not support a conclusion that the terms of the proposed award should apply instead of the Water Industry Award. We have concluded that no modern enterprise award should be made to cover CICL and its employees. The application for us to do so is dismissed.
[150] As a consequence of our decision to not make a modern enterprise award, item 9(3) of Schedule 6 is relevant. It provides that if the Commission decides not to make a modern enterprise award to replace an enterprise instrument, the instrument terminates when that decision comes into operation. Accordingly, the 2004 Award terminates today, 2 April 2014.
SENIOR DEPUTY PRESIDENT
Appearances:
S. Coyne for CICL
S. Crawford for the AWU
S. van Veghel for the CPSU and PSA
Hearing details:
2013.
Sydney.
1 November.
Appendix A
Sections 134 and 284 of the Fair Work Act 2009
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
(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.
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.
1 AN120146.
2 MA000113.
3 The memorandum, dated 18 June 2013, was not marked as an exhibit but a copy is on the file in this matter. The parties agreed it was an enterprise preserved collective State agreement. In its written submissions the applicant described it as an enterprise award based instrument which is a different instrument but one nonetheless amenable to an application to make a modern enterprise award. CICL did not indicate that it resiled from any part of the memorandum dated 18 June 2013.
4 [2011] FWAFB 1077.
5 [2011] FWAFB 1078.
6 [2011] FCA 1315.
7 [2012] FCAFC 114.
8 AG813646.
9 AG836900 (2004 certified agreement), AC201707 (2006 certified agreement), AC317432 (2008 certified agreement), AE879849 (2010 enterprise agreement, [2010] FWAA 6080), AE897605 (2012 enterprise agreement, [2012] FWAA 8897.
10 Exhibit CICL1, attachment B.
11 Exhibit CICL1, attachment C.
12 PN516 - PN521.
13 PN781 - PN786.
14 PN756 - PN779.
15 MA000104.
16 PN408 - PN425.
17 PN276 - 287; PN549; PN552; PN555; Exhibit CICL1, attachment C, para 12 - 13.
18 There is still a reference to “Water, sewerage and drainage services” in the Commission’s list of industries and occupations.
19 [2008] AIRCFB 708, [2009] AIRCFB 100, and [2009] AIRCFB 641.
20 [2009] AIRCFB 865.
21 MA000112; [2009] AIRCFB 865 at [142] - [150].
22 [2009] AIRCFB 865 at [263] - [268].
23 [2009] AIRCFB 945.
24 [2009] AIRCFB 945 at [203].
25 Exhibit CICL1, attachment A, paras 2 - 5.
26 MA000020.
27 AE898083.
28 PN521.
29 PN518; the 2011-2012 Annual Report refers to the core business being the delivery of water.
30 See for example the comments about the same terms used in s.387 of the Act in Jetstar Airways Pty Limited v MsMonique Neeteson-Lemkes[2013] FWCFB 9075 at [45] , and in the context of s.186(3A) Cimeco Pty Ltd vCFMEU and others[2012] FWAFB 2206 at [15]).
31 MA000002.
32 E.g. access to award and NES, supported wage, national training wage system, consultation and dispute resolution clauses.
33 A standard transitional provision placed in many modern awards following the December 2008 Full Bench decision in the Part 10A award modernisation process.
34 Clauses 26.3, 26.5, 26.6.
35 AN120355.
36 Transitional Act, Schedule 6, item 9(4).
37 AE405211.
38 Fair Work Commission website - applications to make modern enterprise awards.
39 AP835789.
40 AN120532.
41 AN150128.
42 Exhibit CICL1, para 4.2.5.1.
43 Clause 6.8.
44 PN735, PN818 - PN820.
45 PN304.
46 Fair Work (Transitional Provisions and Consequential Amendments) Regulations 2009, Part 3C.
47 Exhibit CICL1, paras 4.2.5.1 - 4.2.5.7.
48 Clause 17.7.2.
49 Exhibit CICL1, para.4.2.5.5.
50 E.g. an additional payment in the 2004 Award for “expenses payment for voluntary redundancies” does not appear to have been contained in all the enterprise agreements.
51 PN711.
52 PN690.
53 Clause 35.5.
54 This salary range appears to exclude the Chief Executive Officer.
55 PN849.
56 PN852.
57 s.134(1)(a).
58 s.134(1)(b).
59 s.134(1)(c).
60 s.134(1)(d).
61 Exhibit CICL1, para 5.4.4.
62 s.134(1)(e).
63 ss.134(1)(f) and 134(1)(h).
64 s.134(1)(g).
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