CPSU, the Community and Public Sector Union v G4S Australia Pty Ltd

[2012] FWA 3108

[2012] FWA 3108

FAIR WORK AUSTRALIA

EX TEMPORE DECISION

Fair Work Act 2009
s.739—Application to deal with a dispute

CPSU, the Community and Public Sector Union
v
G4S Australia Pty Ltd
(C2012/2494)

DEPUTY PRESIDENT SMITH CANBERRA, 12 APRIL 2012

Dispute concerning the operative date of a new classification level (AC02).

[1] The following decision, now edited, was issued during proceedings conducted on 20 March 2012.

[2] I have read extensively the submissions of the parties and I have had the benefit of hearing the case, as well, so I am familiar with the background. My recollection is that this matter was very strongly contested. When the matter was previously before me, I was also under the impression that the operative date had been discussed. We all should have been clearer so a determination could have been made at that time. Whilst it is true that a date was selected from which change was measured, in work value terms that does not carry with it an automatic conclusion that the operative date of any increase arising from a work value examination will apply from that date. This is particularly so when a new classification is created to recognise the change in the nature of the work.

[3] There are many decisions in relation to retrospectivity that have been adopted by this Tribunal and its predecessor, including state industrial authorities. The often referred to Full Court decision in the Ship Painters and Dockers case [94 CAR at 619] outlines many of the considerations that have been adumbrated by members of this Tribunal and its predecessor. In addition, the legislative framework which has been referred to by Mr Maher, has shown historically that there has been a policy against retrospectivity unless special and extraordinary circumstances are shown.

[4] A further matter is that matter which has been referred to by Lewin C [(2009) FWA 418] and that is the imposition upon the employer of new cost or requirements in circumstances where they are acting in accordance with the award or agreement at a time. This is particularly relevant in this case where the employer is acting under contracts from government. The matters before me required inspections and argument, and the usual practice is to make any determination from the date of decision. Whilst I appreciate the material that is put before me, I see no reason to depart from that principle. The operative date will be the date of decision in DR2008/1756 issued on 29 April 2010.

DEPUTY PRESIDENT

Appearances:

A. Capp for the CPSU, the Community and Public Sector Union.

A. Maher, Solicitor on behalf of G4S Australia Pty Ltd.

Hearing details:

2012.
Melbourne:
March, 20.

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