Serco Traffic Camera Services (Vic) Pty. Ltd
[2017] FWCA 5873
•10 NOVEMBER 2017
| [2017] FWCA 5873 |
| FAIR WORK COMMISSION |
| decision |
Fair Work Act 2009
s.185—Enterprise agreement
Serco Traffic Camera Services (Vic) Pty. Ltd
(AG2017/2549)
Serco Traffic Camera Services Employment Agreement 2017
| Clerical industry | |
| Commissioner McKinnon | MELBOURNE, 10 NOVEMBER 2017 |
Application for approval of the Serco Traffic Camera Services Employment Agreement 2017.
On 16 June 2017, Serco Traffic Camera Services (Vic) Pty Ltd (Serco Traffic) made the Serco Traffic Camera Services Employment Agreement 2017 with employees who fall broadly into three categories: Mobile Road Safety Camera Operators (Camera Operators), employees in Evidence Management and employees in the Support Operation Centre. On 29 June 2017, Serco Traffic applied to the Commission for approval of the Agreement. The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.
The Australian Municipal, Administrative, Clerical and Services Union (ASU) and the Community and Public Sector Union (CPSU) were bargaining representatives for the Agreement and have given notice under s.183 of the Act that they want the Agreement to cover them. The ASU supports the Agreement but the CPSU objects.
The CPSU’s objection relates to whether the better off overall test is met for Camera Operators. A number of these employees are part-time and have irregular work patterns. This is due to the nature of their work and the contract between Serco Traffic and Victoria Police under which that work is performed. Irregular part-time employment is not a feature of the Miscellaneous Award 2010 (the Miscellaneous Award).
The Commission sought the views of the parties about whether the Miscellaneous Award covered Camera Operators. While Serco Traffic and the CPSU initially agreed that it did, because “no other occupational or industry based award is applicable”[1], Serco Traffic now says that Camera Operators are not covered by any modern award, including the Miscellaneous Award.
The issue is important because it affects the assessment of the better off overall test in relation to the Agreement. For the reasons that follow, I find that the Miscellaneous Workers Award does not cover Camera Operators in Victoria. I have determined the application for approval of the Agreement on that basis and having regard to the materials before me.
Relevant law
Section 143(7) of the Act limits the terms of modern awards as follows:
“143 Coverage terms
Employees not traditionally covered by awards etc.… …
(7) A modern award must not be expressed to cover classes of employees:
(a) who, because of the nature or seniority of their role, have traditionally not been covered by awards (whether made under laws of the Commonwealth or the States); or
(b) who perform work that is not of a similar nature to work that has traditionally been regulated by such awards.”
Consistent with section 143(7) of the Act, clause 4 of the Miscellaneous Award deals with coverage in the following way:
“4. Coverage
4.1 Subject to clauses 4.2, 4.3, 4.4, 4.5 and 4.6 this award covers employers throughout Australia and their employees in the classifications listed in clause 14—Minimum wages who are not covered by any other modern award.
4.2 The award does not cover those classes of employees who, because of the nature or seniority of their role, have not traditionally been covered by awards including managerial employees and professional employees such as accountants and finance, marketing, legal, human resources, public relations and information technology specialists.
4.3 The award does not cover employees:
(a) in an industry covered by a modern award who are not within a classification in that modern award; or
(b) in a class exempted by a modern award from its operation, or employers in relation to those employees.
4.4 The award does not cover employees excluded from award coverage by the Act.
4.5 The award does not cover employees who are covered by a modern enterprise award, or an enterprise instrument (within the meaning of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth)), or employers in relation to those employees.
4.6 The award does not cover employees who are covered by a State reference public sector modern award, or a State reference public sector transitional award (within the meaning of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth)), or employers in relation to those employees.
4.7 This award covers any employer which supplies on-hire employees in classifications set out in Schedule B and those on-hire employees, if the employer is not covered by another modern award containing a classification which is more appropriate to the work performed by the employee. This subclause operates subject to the exclusions from coverage in this award.
4.8 This award covers employers which provide group training services for apprentices and trainees under this award and those apprentices and trainees engaged by a group training service hosted by a company to perform work at a location where the activities described herein are being performed. This subclause operates subject to the exclusions from coverage in this award.”
Schedule B of the Miscellaneous Award contains four generic classification descriptions for employees covered by the award:
Schedule B—Classification Structure and Definitions
Level 1An employee at this level has been employed for a period of less than three months and is not carrying out the duties of a level 3 or level 4 employee.
Level 2An employee at this level has been employed for more than three months and is not carrying out the duties of a level 3 or level 4 employee.
Level 3An employee at this level has a trade qualification or equivalent and is carrying out duties requiring such qualifications.
Level 4An employee at this level has advanced trade qualifications and is carrying out duties requiring such qualifications or is a sub-professional employee.
As a Full Bench of the Commission noted in Re CSIRO (Salaries and Conditions of Service) Award 1999):
“[42]The Miscellaneous Award was not created or designed to be a universal safety net but to be a transition point to another modern award whose coverage may require review.”[2]
Are Camera Operators covered by the Miscellaneous Award?
Submissions of the parties[3] disclosed the following matters which were either agreed or uncontested:
1.The regulation of, and activities related to, the use of speed cameras has traditionally been dealt with as a state matter, and varies from state to state.
2.Speed cameras were introduced in Victoria in 1968.
3.For approximately thirty years, traffic camera operations were performed exclusively by Victorian police officers.
4.For a period in 1998, traffic camera operations were undertaken by both police officers and employees of Victoria Police. Relevant employees were likely covered by the Public Service (Non-Executive Staff – Victoria) Interim Award 1996.
5.In October 1998, traffic camera operations in Victoria were contracted out to the private sector.
6.From October 1998 to 31 December 2009, Camera Operators in Victoria were award free.
7.Modern awards, including the Miscellaneous Award, commenced on 1 January 2010. No modern award expressly covers the work of Camera Operators.
As this history illustrates, traffic camera operations have existed in Victoria for almost 50 years. In all that time, the only award coverage was for less than one year, and only for a proportion of the relevant workforce. This was almost 20 years ago, and award coverage operated then by virtue of the fact that relevant employees were in the Victorian public service.
The Miscellaneous Award covers employees in the generic classifications described above. It covers employees who are not covered by any other modern award, unless one of the exceptions to coverage in clause 4 of the Award applies.
In this case, the relevant exception is found in clause 4.2. The role of Camera Operator has not traditionally been covered by awards. This reflects the unique, semi-regulatory nature of the role, which was traditionally one for Victorian police officers and is now a contracted activity closely connected to Victoria Police.
In my view, Camera Operators in Victoria are not covered by the Miscellaneous Award. The parties agreed that no other relevant modern award covered Camera Operators – indeed it was that reason that led them initially to the Miscellaneous Award. It follows that there is no relevant modern award for the purposes of the better off overall test in relation to Camera Operators.
Agreement approval – other matters
I turn now to deal with the substantive application for approval of the Agreement.
The relevant modern awards for the purposes of the better off overall test are the Clerks - Private Sector - Award 2010 and the Vehicle Manufacturing, Repair, Services and Retail Award 2010.
A number of issues were raised with Serco Traffic in relation to the Agreement and whether it met the statutory requirements for approval, including in relation to the National Employment Standards (flexible working arrangements and personal carers’ leave) and the better off overall test (part-time, casual and overtime entitlements).
The Applicant provided written undertakings to address the concerns, attached in Annexure A to this decision. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. I also note that there are a range of more beneficial terms in the Agreement including higher rates of pay and more generous leave entitlements.
Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.
The Agreement lodged contained typographical errors at Clause 33(f). On 9 November 2017 the Applicant sought to correct the error by filing an amended version of the Agreement pursuant to s.586 of the Act. I am satisfied that the correction should be made and that it is appropriate to do so pursuant to s.586 of the Act.
In accordance with s.201(2) I note that the Agreement covers the ASU and the CPSU.
The Agreement is approved and, in accordance with s.54 of the Act, will operate from 17 November 2017. The nominal expiry date of the Agreement is 31 October 2019.
COMMISSIONER
Annexure A
[1] CPSU Submission attached to Form F18 dated 6 July 2017; Serco Traffic Submission, 4 August 2017
[2] [2016] FWCFB 5874. See also [2009] AIRCFB 945; [2009] AIRCFB 865
[3] CPSU Submission, 19 October 2017; Serco Traffic Submission, 20 October 2017
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