Commissioner for Public Employment - [2016] FWCFB 3838

[2016] FWCFB 3838

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Item 4 Sch. 6—Modern enterprise award

Commissioner for Public Employment
(EM2013/61)

COMMUNITY AND PUBLIC SECTOR UNION (NORTHERN TERRITORY PUBLIC SECTOR) AWARD 2002 AND OTHERS

Commonwealth employment
VICE PRESIDENT CATANZARITI DEPUTY PRESIDENT KOVACIC COMMISSIONER JOHNS	SYDNEY, 19 AUGUST 2016

Application for a modern enterprise award to replace several enterprise instruments - whether modern enterprise award should be made - modern enterprise award should be made in the circumstances - order to be settled by member of Full Bench.

Introduction

[1] This decision relates to applications made under item 4 of Schedule 6 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Transitional Act) for the Fair Work Commission to make a modern enterprise award to replace the following awards (Current Awards):

● Community and Public Sector Union (Northern Territory Public Sector) Award 2002;
● Construction and Maintenance Workers (Northern Territory Public Sector) Award 2001;
● Darwin Port Corporation (Maritime Unions) Award 2003;
● Drafting, Supervisory, Technical and Other Employees (Northern Territory Public Sector) Award 2002;
● Fire & Rescue Services Employees (Northern Territory) Award 2001;
● General Employees (Northern Territory Public Sector) Miscellaneous Workers Union Award 2001;
● Health Employees (Northern Territory Public Sector) Miscellaneous Union Award 2001;
● Medical Officers (Northern Territory Public Sector) Award 2001;
● Northern Territory Public Sector (General Conditions of Service) Award 2000;
● Northern Territory Public Sector Redundancy Provisions Award 2001;
● Northern Territory Public Sector Teachers & Assistant Teachers Award 2001;
● Northern Territory Power and Water Corporation Employees Award 2002;
● Northern Territory Professional Engineers Award (Power and Water Authority) Award 2001;
● Nurses (Northern Territory Public Sector) Award 2001;
● Professional Engineers (Northern Territory Public Sector) Award 2001; and
● Transport Workers’ (Northern Territory Public Sector) Award 2002.

[2] The application was made by the Northern Territory’s Commissioner for Public Employment.

[3] On 26 May 2016 the parties jointly filed the following material in support of the application:

● Joint outline of submissions (Exhibit A);
● Statements of:

Craig John Allen, Commissioner for Public Employment in the Northern Territory (Exhibit B); and

Helen Leigh McAuliffe, Principal Consultant, Employee Relations, in the Office of the Commissioner for Public Employment (Exhibit C),

● a draft Order; and
● a draft of the Proposed Award.

[4] The application was supported by the following unions:

● Community and Public Sector Union;
● Association of Professional Engineers, Scientists and Managers Australia;
● Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union;
● Communications, Electrical, Electronic, Energy, Information, Postal,
● Plumbing and Allied Services Union of Australia;
● United Voice;
● Australian Nursing and Midwifery Federation;
● Australian Education Union;
● Australian Salaried Medical Officers Federation;
● Maritime Union of Australia; and
● Transport Workers Union.

[5] At the hearing of this matter on 9 June 2016 the following appearances were recorded;

● Ms A. Ambihaipahar for the Community and Public Sector…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] FWCFB 3838
Decision Date: 19 AUGUST 2016

CaseChat Overview and Summary

The parties in this case were the Commissioner for Public Employment and another party whose name was not disclosed. The dispute involved an application for the creation of a modern enterprise award to replace several existing enterprise instruments. The case was heard in the Fair Work Commission. The primary legal issue before the court was whether a modern enterprise award should be established to replace the current enterprise instruments. The court also needed to consider the criteria and circumstances under which such an award should be made.

The court considered the application and determined that a modern enterprise award should be made. The reasoning behind this decision involved an analysis of the relevant legislation and the specific circumstances of the case. The court found that the proposed modern enterprise award would better address the needs of the employees and employers covered by the instruments it would replace. The decision to create the award was made in accordance with the statutory requirements and principles of fairness and efficiency in industrial relations.

The final orders of the court were that a modern enterprise award should be made to replace the existing enterprise instruments. The details of the award, including its terms and conditions, were to be settled by a member of the Full Bench of the Commission. This decision provided clarity and certainty for the parties involved, ensuring that the new award would better serve the interests of both employees and employers.

Orders