Police Association of New South Wales

[2011] FWA 9027

[2011] FWA 9027

FAIR WORK AUSTRALIA

DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch. 3A, Item 19 - Application to remove ambiguities etc.

Police Association of New South Wales
(C2011/439)

Clerical industry
VICE PRESIDENT WATSON	SYDNEY, 20 DECEMBER 2011

Application to vary the Police Association Salaried Officers (State) Award 2000 [NSW - Division 2B enterprise award] - uncertainty in relation to classifications and rates of pay - newly created positions - Fair Work (Transitional Provisions and Consequential Amendments) Act 2009, Item 19(1), Sch 3A.

Introduction

[1] This decision concerns an application by the Police Association of New South Wales (Police Association) to vary the Police Association Salaried Officers (State) Award 2000 (NSW) (the Award) to clarify an alleged ambiguity or uncertainty created by the introduction of new positions that do not currently correspond to existing classifications and rates of pay under the Award.

[2] At the hearing on 1 September 2011, Mr M. Spring appeared for the Police Association and Ms K. McIlveen appeared for the Police Association Salaried Officers Union. At the hearing I granted the parties leave to file further written submissions in support of the application. On 21 November 2011 the parties submitted a joint written submission amending the original application and proposing the insertion of a new schedule to remedy the alleged ambiguity or uncertainty with respect to classifications and rates of pay for the newly created positions.

The Application

[3] The Award sets rates of pay by reference to classifications which correspond to a grade and multiplier of the annual base pay of a Level 6 Senior Constable under the Crown Employees (Non Commissioned Police Officers) Award (an award of the NSW Industrial Relations Commission) as varied.

[4] The Police Association submits that an ambiguity or uncertainty has arisen as newly created positions do not currently align with any of the existing classifications and therefore the rates of pay with respect to the new positions are ambiguous or uncertain.

[5] The application seeks to correct the alleged ambiguity or uncertainty by inserting the new classifications and rates of pay contained in Schedule A (below) into clause 48 of the Award which deals with monetary rates. The variation sought is as follows:

“SCHEDULE A

CLASSIFICATION	RATE OF PAY
Administrative Services
Senior Administration Officer	A rate not less than Level 5, Year 1 to Level 7, Year 1
Legal Services
Senior Coordinator	A rate not less than Level 9, Year 2 to Level 11, Year 2
In House Counsel	A rate not less than Level 9, Year 1 to Level 11, Year 1
Solicitor	A rate not less than Level 7, Year 1 to Level 9, Year 1
Senior Legal Clerk	A rate not less than Level 2, Year 1 to Level 5, Year 2
Para Legal	A rate not less than Level 3, Year 1 to level 5, Year 1
Death and Disability Coordinator	A rate not less than Level 6, Year 1 to Level 8, Year 1
Industrial Services
IOC Supervisor	A rate not less than Level 8, Year 2 to Level 10, Year 2
Research/Resource
Research Manager	A rate not less than Level 10, Year 1 to Level 12, Year 1”

Relevant legislation

[6] Following the introduction of referral legislation, the Award operates as a Division 2B enterprise award pursuant to Item 3(1) of Sch 3A and Item 2(4) of Sch 6 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the TPCA Act).

[7] A Division 2B enterprise award is defined by Item 2(1) of Sch 3A of the TPCA Act as a state instrument and can therefore only be varied in limited circumstances. Item 19(1) of Schedule 3A to the TPCA Act provides:

“19 Variation to remove ambiguities etc.

(1) On application by a person covered by a Division 2B State instrument, FWA may make a determination varying the instrument:

(a) to remove an ambiguity or uncertainty in the instrument; or

(b) if the instrument is a Division 2B State employment agreement—to resolve an uncertainty or difficulty relating to the interaction between the instrument and a modern award; or

(c) to remove terms that are inconsistent with Part 3-1 of the FW Act (which deals with general protections), or to vary terms to make them consistent with that Part.

Note: For variation of a Division 2B State instrument to resolve an uncertainty or difficulty relating to the interaction between the instrument and the National Employment Standards, see item 40.

(2) A variation of a Division 2B State instrument operates from the day specified in the determination, which may be a day before the determination is made.”

Conclusion

[8] I have considered the grounds on which the application is made and I am satisfied that the lack of corresponding classifications and rates of pay with respect to the newly created positions identified in Schedule A creates an uncertainty in the application of the Award. As a result, I will issue a variation inserting the classifications and rates of pay contained in Schedule A into clause 48 of the Award in order to remedy the uncertainty.

VICE PRESIDENT WATSON

Appearances:

Mr M. Spring for the New South Wales Police Association.

Ms K. McIlveen for the Police Association Salaried Officers Union.

Hearing details:

2011
Sydney
1 September.

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<Price code A, RA120782 PR518221>