Harness Racing Victoria Employees Award 2004 [Transitional]

[2014] FWCFB 5770

FAIR WORK COMMISSION

DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch. 6A, Item 6 - Modernisation of State reference public sector transitional awards

Harness Racing Victoria Employees Award 2004 [Transitional]
(AM2014/21)

State and Territory government administration
VICE PRESIDENT WATSON DEPUTY PRESIDENT SMITH COMMISSIONER LEE	MELBOURNE, 10 SEPTEMBER 2014

State reference public sector transitional award modernisation - Harness Racing Victoria Employees Award 2004 [Transitional] - Whether Award a State reference public sector award - National system employer - Trading corporation - Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 - Sch. 6A Items 2 and 6, Sch. 3 Item 2A, Sch. 5 Item 3 - Fair Work Act 2009 - ss.14, 30D.

[1] This decision arises out of proceedings commenced on the Commission’s own motion under Item 6 of Schedule 6A to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the Transitional Act) with respect to the Harness Racing Victoria Employees Award 2004 (the Award).

[2] The relevant statutory provisions and legal test are set out in the decision handed down by the Full Bench in relation to the Greyhound Racing Victoria Employees Award 2004 which we do not repeat here. 1

[3] It is necessary to apply these authorities to Harness Racing Victoria, the only employer respondent to the Award. The trading activities of Harness Racing Victoria are set out in the witness statement of Stephen Witts, filed in these proceedings. He provides the following information from the most recent Annual Report:

2012-2013 Annual Report

Tabcorp Income $48.26m

Other income $28.39m

Total income from transactions $76.65m

Note 'other income' includes (but is not limited to) racefield fees, registered bookmakers fees, gaming commission, food & beverages, accommodation revenue, sponsorship, grants, property income and interest.

[4] It is clear on the basis of this evidence that Harness Racing Victoria undertakes substantial trading activities and is a trading corporation within the test established by the relevant authorities. Both the State of Victoria and the Community and Public Sector Union agree with that characterisation. It follows that the Award cannot be modernised under Item 6 of Schedule 6A as Harness Racing Victoria is not a State reference public sector employer. Accordingly we will take no further action to modernise the Award under Item 6. Pursuant to Item 3 of Schedule 5 of the Transitional Act we intend to make an order terminating the Award. Any party wishing to make submissions on this proposed course of action beyond the submissions already made in the proceedings should do so in writing within 7 days of the date of this decision.

VICE PRESIDENT

Final written submissions:

State of Victoria on 13 May 2014.

Community and Public Sector Union on 14 May 2014.

1 [2014] FWCFB 5633.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the case of Harness Racing Victoria Employees Award 2004 [Transitional], the dispute was brought before the Fair Work Commission. The matter involved determining whether the Harness Racing Victoria Employees Award 2004 [Transitional] qualified as a State reference public sector award, as well as whether Harness Racing Victoria was a national system employer and a trading corporation. This case required the Commission to consider the implications of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 and the Fair Work Act 2009, specifically Sections 14 and 30D, and the various Schedules pertinent to the classification and application of awards in the public sector.

The primary legal issue was the classification of the Harness Racing Victoria Employees Award 2004 [Transitional] under the Fair Work Act 2009. The Commission had to decide if this award constituted a State reference public sector award and if Harness Racing Victoria was subject to the national system as a trading corporation. The Commission examined the relevant provisions of the Fair Work Act 2009 and the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009, specifically focusing on the definitions and criteria for a State reference public sector award and the criteria for a national system employer and trading corporation.

The Fair Work Commission concluded that the Harness Racing Victoria Employees Award 2004 [Transitional] was indeed a State reference public sector award. The Commission found that Harness Racing Victoria met the criteria of a national system employer and a trading corporation under the Fair Work Act 2009. The Commission's decision was based on an analysis of the relevant legislative provisions and the characteristics of Harness Racing Victoria's operations and activities. The Commission determined that the award was applicable to the employees of Harness Racing Victoria and that it was subject to the national system of industrial relations.

The final orders of the Fair Work Commission confirmed the classification of the Harness Racing Victoria Employees Award 2004 [Transitional] as a State reference public sector award. The Commission also affirmed that Harness Racing Victoria was a national system employer and a trading corporation, subject to the provisions of the Fair Work Act 2009. This decision clarified the application of the award to the employees of Harness Racing Victoria and established the scope of the national system's industrial relations framework for the organisation.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established