My Place Foundation (Inc.)
[2009] FWA 387
•25 SEPTEMBER 2009
[2009] FWA 387 |
|
DECISION |
Fair Work Act 2009
Sch. 7, Item 7 - Application for determination of designated award for purpose of no-disadvantage test
(AG2009/14684)
COMMISSIONER WILLIAMS | PERTH, 25 SEPTEMBER 2009 |
Application for determination of a designated award.
[1] This application has been made by My Place Foundation (Inc.) and is an application for the determination of a designated award for the purposes of the no-disadvantage test. The applicant is represented by the Chamber of Commerce and industry of Western Australia Inc.
[2] The application is made under item 7 of Part 2 of Schedule 7 of the Fair Work (Transitional Provision and Consequential Amendments) Act 2009 (the Transitional Act).
[3] Schedule 7 of the Transitional Act deals with Enterprise Agreements and Workplace Determinations made under the Fair Work Act 2009
[4] Part 2 of Schedule 7 sets out transitional provisions relating to the application of the no-disadvantage test to enterprise agreements made and varied during bridging period. Item 7 of Part 2 provides as follows:
“7 Designated awards—before application for FWA approval
(1) FWA may, on application by an employer, determine that an award is a designated award for an employee or class of employees of the employer.
(2) FWA may make a determination under this item only if it is satisfied that:
(a) the employee or employees are or may be employed in an industry or occupation in which the terms and conditions of the kind of work performed or to be performed by the employee or employees:
(i) are usually regulated by an award; or
(ii) would, but for an enterprise agreement or another industrial instrument having come into operation, usually be regulated by an award; and
(b) unless there is a designated award for the employee or employees, there would be no reference instrument relating to the employee or employees; and
(c) there is an award that satisfies the requirements specified in subitem (3).
(3) An award or awards determined by FWA under this item:
(a) must be an award or awards regulating, or that would, but for an enterprise agreement or another industrial instrument having come into operation, regulate, terms or conditions of employment of employees engaged in the same kind of work as the work performed or to be performed by the employee or employees; and
(b) must, in the opinion of FWA, be an award or awards that would be appropriate for the purpose referred to in paragraph 8(3)(b) if an application were made for approval of an enterprise agreement under section 185 of the FW Act; and
(c) must not be an award that regulates the terms and conditions of employment in a single business only (being the single business specified in the award).
(4) An award determined under this item in relation to an employee or employees is taken to be the designated award determined by FWA under item 8 in relation to the employee or employees if, later, an application is made for approval of an enterprise agreement under section 185 of the FW Act, in relation to the employee or the employees.
(5) Despite subitem (4), FWA may determine under item 8 that another award is a designated award in relation to the employee, or in relation to some or all of the employees, if:
(a) FWA becomes aware of information that was not available to it at the time of the determination under subitem (1); and
(b) FWA is satisfied that, had that information been available to it at that time, FWA would have determined under subitem (1) the other award to be the designated award.
(6) FWA may determine different awards under subitem (1) in relation to different employees.
(7) In this item, a reference to an employee or employees of an employer includes a reference to a person or persons who may become an employee or employees of the employer.
(8) A determination made under this item is not a legislative instrument.”
[5] The application explains in some detail the kind of work performed by the employees of the applicant who would be covered by a future enterprise agreement and describes in detail the industry of the applicant and the main activities that would be covered under the proposed enterprise agreement.
[6] The application then states
“There is no award coverage, State or Federal, in Western Australia,…… nor is My Place Foundation respondent to any State or Federal award. ”
[7] The application concludes by saying that the applicant
“….. seeks Fair Work Australia's confirmation that as the employees in this Application do not work in any industry or job where an award applies, there will not be an award designated for the purposes of the NDT should My Place Foundation wish to enter into an Enterprise Agreement with their Service Coordinators, Administrative employees and Managers.”
[8] In short, the application seeks a decision from the Fair Work Australia that there is no reference instrument in relation to any of the employees who might be covered by a proposed enterprise agreement.
[9] This application is made under Item 7 of Part 2 of Schedule 7 of the Transitional Act which provides that Fair Work Australia may, on application by an employer, determine that an award is a designated award for an employee or class of employees of the employer.
[10] The task for Fair Work Australia under Item 7 is to determine that a particular award is to be a designated award for an employee or a class of employees of the employer. That however is not what the application in this case is seeking. The applicant in this instance does not want Fair Work Australia to designate an award at all. Rather the applicant asks Fair Work Australia to conclude only that there is no reference instrument but to go no further.
[11] In my view this application is ill conceived because there is no power for Fair Work Australia under Item 7 of Part 2 of Schedule 7 of the Transitional Act to do as the applicant seeks in this matter. The power under this item is to determine a designated award not something short of this. Consequently this application cannot be considered further and will be dismissed.
[12] For the purposes of certainty it should be understood that in coming to this decision, that the application must be dismissed, I have formed no conclusion as to whether or not there is a reference instrument relating to the employees in question in this case.
COMMISSIONER
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