Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and others
[2015] FWCFB 2554
•17 APRIL 2015
| [2015] FWCFB 2554 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch. 6, Item 4 - Application to make a modern award to replace an enterprise instrument.
(EM2013/38)
Australian Postal Corporation
(EM2013/59)
AUSTRALIA POST GENERAL CONDITIONS OF EMPLOYMENT AWARD 1999
AUSTRALIA POST ADMINISTRATIVE / PROFESSIONAL AWARD 1999
AUSTRALIA POST OPERATIONS AWARD 1999
AUSTRALIA POST TECHNICAL AWARD 1999
Postal services | |
VICE PRESIDENT WATSON | MELBOURNE, 17 APRIL 2015 |
Applications by Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, the Community and Public Sector Union, The Association of Professional Engineers, Scientists and Managers, Australia, the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union and the Australian Postal Corporation for a modern enterprise award to replace Australia Post General Conditions of Employment Award 1999, Australia Post Administrative / Professional Award 1999, Australia Post Operations Award 1999 and Australia Post Technical Award 1999 - case for modern enterprise award established - Schedule 6 Item 4, Schedule 6 Item 6, Schedule 6 Item 9 - Fair Work Act 2009, s. 134.
Introduction
[1] This decision relates to applications 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:
● Australia Post General Conditions of Employment Award 1999 (General Conditions Award)
● Australia Post Administrative / Professional Award 1999 (Administrative/Professional Award)
● Australia Post Operations Award 1999 (Operations Award), and
● Australia Post Technical Award 1999 (Technical Award) (collectively referred to as the AP Enterprise Awards).
[2] The applications are made by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU), the Community and Public Sector Union (CPSU), The Association of Professional Engineers, Scientists and Managers, Australia (APESMA) and the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) (collectively referred to as the Unions) and the other party to the awards, the Australian Postal Corporation (Australia Post).
[3] At the hearing of this matter Mr E White of counsel, Ms C Gee and Mr D Dwyer appeared for the CEPU, Ms S Herrington appeared for APESMA and the AMWU and Ms L Lind appeared via video link on behalf of the CPSU. Mr C O’Grady of counsel appeared for Australia Post.
The Legislative Task
[4] The role of the Commission in an application to make a modern enterprise award is governed by sub-item 4(5) of Schedule 6 to the Transitional Act which provides:
“(5) In deciding whether or not to make a modern enterprise award, and in determining the content of that award, the FWC must take into account the following:
(a) the circumstances that led to the making of the enterprise instrument rather than an instrument of more general application;
(b) whether there is a modern award (other than the miscellaneous modern award) that would, but for the enterprise instrument, cover the persons who are covered by the instrument, or whether such a modern award is likely to be made in the Part 10A award modernisation process;
(c) the content, or likely content, of the modern award referred to in paragraph (b) (taking account of any variations of the modern award that are likely to be made in the Part 10A award modernisation process);
(d) the terms and conditions of employment applying in the industry in which the persons covered by the enterprise instrument operate, and the extent to which those terms and conditions are reflected in the instrument;
(e) the extent to which the enterprise instrument provides enterprise-specific terms and conditions of employment;
(f) the likely impact on the persons covered by the enterprise instrument, and the persons covered by the modern award referred to in paragraph (b), of a decision to make, or not make, the modern enterprise award, including any impact on the ongoing viability or competitiveness of any enterprise carried on by those persons;
(g) the views of the persons covered by the enterprise instrument;
(h) any other matter prescribed by the regulations.”
[5] It is also necessary to consider the modern enterprise awards objective: Item 6 of Schedule 6 of the Transitional Act. This is a legislative requirement for the Commission to recognise, in the context of the modern awards objective and the minimum wage objective, that modern enterprise awards may provide terms and conditions tailored to reflect employment arrangements that have been developed in relation to the relevant enterprises. The modern awards objective, set out in s.134 of the Fair Work Act 2009 (the Act), is as follows:
“134 The modern awards objective
What is the modern awards objective?
(1) The FWC must ensure that modern awards, together with the National Employment Standards, provide a fair and relevant minimum safety net of terms and conditions, taking into account:
(a) relative living standards and the needs of the low paid; and
(b) the need to encourage collective bargaining; and
(c) the need to promote social inclusion through increased workforce participation; and
(d) the need to promote flexible modern work practices and the efficient and productive performance of work; and
(da) the need to provide additional remuneration for:
(i) employees working overtime; or
(ii) employees working unsocial, irregular or unpredictable hours; or
(iii) employees working on weekends or public holidays; or
(iv) employees working shifts; and
(e) the principle of equal remuneration for work of equal or comparable value; and
(f) the likely impact of any exercise of modern award powers on business, including on productivity, employment costs and the regulatory burden; and
(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.”
[6] We turn to consider these factors in relation to the circumstances of this case.
The circumstances that led to the making of the enterprise instrument rather than an instrument of more general application: Item 4(5)(a)
[7] The history of the AP Enterprise Awards dates back to the early 1900s, commencing with terms and conditions arising from public sector employment. Many of the terms and conditions of employment currently contained in the AP Enterprise Awards had their origins in determinations made by the Public Service Board under the Public Service Act 1922. To this day, the AP Enterprise Awards operate alongside the ‘Australia Post Principal Determination’, which is a determination of terms and conditions of employment made under s.89(2) of the Australian Postal Corporation Act 1989.
[8] Following the division of Australia Post from the Postmaster General’s Department in 1975 these instruments evolved to become a suite of enterprise instruments, which were subsequently simplified and updated by the Commission through the Award Simplification Process between 1998 and 2000.
[9] The parties note that many of the amendments to those instruments were made by consent and reflect enterprise specific terms. In particular, Australia Post submits that the enterprise specific terms were negotiated on the basis of Australia Post’s position as a statutory monopoly in relation to the provision of the ‘reserved letters service’ and the only organisation capable of delivering a fully integrated postal service across the country.
[10] Australia Post submits that at all times, the award and determinations governing Australia Post and its predecessors have had a single employer respondent. At no time has it been contemplated by any of the parties to the enterprise specific awards and determinations that an instrument of more general application should be made. Accordingly, the content of the AP Enterprise Awards strongly reflects the bargaining that has occurred over the years to take into account matters of particular significance to Australia Post.
Whether there is a modern award that would, but for the enterprise instrument, cover the persons who are covered by the instrument: Item 4(5)(b)
[11] There is no single modern award which would apply to all employees currently covered by the AP Enterprise Awards. If the AP Enterprise Awards were not modernised, Australia Post submits that it is likely that at least seven different modern industry and occupational awards would cover Australia Post employees. They are:
● Road Transport and Distribution Award 2010
● General Retail Industry Award 2010
● Road Transport (Long Distance Operations) Award 2010
● Manufacturing and Associated Industries Award 2010
● Graphic Arts, Printing and Publishing Award 2010
● Professional Employees’ Award 2010, and
● Health Professionals and Support Services Award 2010.
[12] There may also be employees who would be covered by the Miscellaneous Award 2010.
[13] Both parties submit that coverage by a large number of modern awards may lead to difficulties in enterprise bargaining. The Unions submit that it would lead to an unnecessary fragmentation of the award safety net and would fail to achieve the modern awards objective.
[14] The Unions further submit that it is likely that some persons currently covered by one of the AP Enterprise Awards would fall outside the coverage of all other modern industry and occupational awards. Those employees would therefore lose the benefit of an award safety net and their access to unfair dismissal protections and the dispute settlement provisions of the Act would be weakened.
The content of the modern awards referred to in paragraph (b): Item 4(5)(c)
[15] The Unions submit that the content of the modern industry and occupational awards are well settled.
[16] The Unions and Australia Post submit that there are significant differences between the AP Enterprise Awards and the modern industry and occupational awards which might otherwise apply, because those awards focus on the other industries and occupations.
[17] It is further submitted that the content of the modern industry and occupational awards are not an appropriate safety net given the history of Australia Post and its industrial regulation.
The terms and conditions of employment applying in the industry: Item 4(5)(d)
[18] The Unions and Australia Post submit that there is no true ‘postal industry’ in Australia outside of Australia Post. In this respect, the Unions submit that Australia Post is in a similar position to Note Printing Australia, for which the Commission has decided to make an enterprise award.
[19] Australia Post submits that as the ‘postal industry’ is effectively the business of Australia Post, the prevailing industry safety net wages and conditions of employment are those which are reflected in the AP Enterprise Awards themselves. It submits that the dominance of Australia Post in the relevant industry, including its statutory monopoly in relation to its core business, is a unique factor which strongly supports the granting of the application.
[20] The Unions and Australia Post contend that as Australia Post was not a party to the award modernisation process which impacted the critical mass of terms and conditions of employment for the making of other modern awards, the safety nets established by those awards do not adequately reflect the safety net that has historically applied to Australia Post employees.
The extent to which the Award provides enterprise-specific terms and conditions of employment: Item 4(5)(e)
[21] The Unions and Australia Post submit that a number of enterprise-specific terms and conditions of employment are contained in the AP Enterprise Awards which are not contained in the modern industry and occupational awards. It is submitted that many of those terms have been tailored to employment arrangements that have been developed in relation to Australia Post’s enterprise. The enterprise-specific terms are the product of a history of extensive bargaining and the unique nature of Australia Post’s operations as a statutory monopoly in relation to its core business.
[22] Ms G Rivers, Head of Workplace Relations and Policy at Australia Post, gave evidence that the AP Enterprise Awards contain a number of enterprise-specific terms and conditions.
[23] The enterprise-specific provisions of the General Conditions Award include the recognition of primacy of award conditions in the event of inconsistency with determinations made under the Australian Postal Corporations Act 1989, a mechanism for varying hours of duty and meal breaks by majority agreement, communication via noticeboards, pre-engagement medical testing, fixed term employment, conditions of service for casual employees, classifications and work level standards, allowances, restriction duty and evidentiary requirements to support applications for personal leave.
[24] Ms Rivers gave evidence that the enterprise-specific provisions of the Operations Award include recognition of the primacy of award conditions in the event of inconsistency with statutory determinations, allowances and hours of duty. The Technical Award contains similar enterprise-specific terms but also includes provision of salary advancement for apprentices. The enterprise-specific terms of the Administrative/Professionals Award includes recognition of the primacy of award conditions in the event of inconsistency with statutory determinations, hours of duty and transitional provisions for former paid rates award employees.
[25] Further, Ms Rivers gave evidence that there are several legacy conditions in the AP Enterprise Awards retaining a public service-like character which are not contained in some, or any, of the industry modern awards. For example, recognition of prior public sector employment, references to Commonwealth public sector occupational health and safety legislation and maternity leave legislation, 15 days’ personal leave, war service sick leave and a 7 hour 21 minute standard day under each of the Operations Award, Administrative/Professional Award and the Technical Award.
The likely impact on the persons covered by the Award, and the persons covered by the modern awards referred to in paragraph (b), of a decision to make, or not make, the modern enterprise award: Item 4(5)(f)
[26] Australia Post submits that the termination of the AP Enterprise Awards has the potential to have a detrimental impact on the profitability of its enterprise. In particular, the introduction of additional costs and restrictions would adversely affect Australia Post’s operations by increasing labour costs and reducing flexibility.
[27] As to the likely impact on employees, the Unions submit that the relevant modern awards provide a lower safety net than the AP Enterprise Awards. While the Australia Post Enterprise Agreement 2014 applies to many employees of Australia Post, the Unions submit that a decision not to make a modern enterprise award would have an ongoing negative impact on the bargaining position of the employees of Australia Post.
[28] Australia Post submit that the possible involvement of a larger number of unions in enterprise bargaining may impact Australia Post, its employees, and those employees’ unions, leading to possible demarcation issues and more complex enterprise bargaining with more employee bargaining representatives in potential competition with one another.
[29] The Unions submit that the likely impact on the Union of not making the modern enterprise award would be to reduce their bargaining power and would fail to encourage collective bargaining, contrary to the modern enterprise awards objective.
[30] In relation to Australia Post’s competitive position and that of enterprises covered by the modern award which, but for the AP Enterprise Awards, would apply to Australia Post, Australia Post and the Unions note that Australia Post has no direct competitor for many of its operations, therefore this is not a case where there is risk of creating an unfair advantage for Australia Post.
The views of the persons covered by the enterprise instrument: Item 4(5)(g)
[31] Australia Post, the Unions and implicitly the members of each of the unions support the making of a new enterprise award.
Any other matter prescribed by the regulations: Item 4(5)(h)
[32] There are no other matters prescribed.
Should a modern enterprise award be made?
[33] Australia Post is a unique organisation. Its core business is a statutory monopoly. Its related activities reflect the diversification developed over many years to deal with changes in its role and the functions it performs. There is no real industry of postal services beyond the operations of Australia Post and no convenient alternative award that can be said to better satisfy the modern awards objective than a modernised Australia Post Award.
[34] The history of the award discloses a rationale for its existence which remains current today. The terms of current enterprise awards contain enterprise specific terms. While some of these can and should be contained in enterprise agreements, the fact remains that the awards were developed for this enterprise, and once consolidated and modernised, remain the most suitable vehicle for a fair and relevant minimum safety net into the future. In our view there is a compelling case for the making of a modern enterprise award for Australia Post.
[35] The above factors clearly make the case for such an outcome. We consider that a modern Australia Post award should be made.
[36] As to the terms of the award we acknowledge the work of the parties to develop a draft award that reflects the statutory criteria. Commissioner Lee will convene a conference of the parties to assist in fine tuning the terms of the award before it is ultimately made by this Full Bench.
VICE PRESIDENT
Appearances:
Ms S Herrington for APESMA and AMWU.
Mr E White of counsel and Ms C Gee and Mr D Dwyer for CEPU.
Ms L Lind for CPSU.
Mr C O’Grady of counsel for Australian Postal Corporation.
Hearing details:
2015.
Melbourne—Video Link to Sydney.
27 March.
Final written submissions:
Australia Post on 10 November 2014.
CEPU, CSPU, APESMA and AMWU on 12 December 2014.
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