Termination of enterprise instruments

[2023] FWC 2633

[2023] FWC 2633

FAIR WORK COMMISSION

STATEMENT

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009

Sch. 6, Item 9—Variation and termination of certain instruments due to enterprise instrument modernisation process

Termination of enterprise instruments

(EM2023/1)

JUSTICE HATCHER, PRESIDENT SYDNEY, 12 OCTOBER 2023

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009, Schedule 6 Items 4, 6 and 9 – termination of remaining enterprise instruments – applications to make enterprise awards subsequently withdrawn – application to make an enterprise award resulted in coverage of modern award altered.

Introduction and background

1. Schedule 6 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) (Transitional Act) sets out the enterprise instrument modernisation process. The process allowed parties to enterprise instruments to make an application to the Commission to have these instruments modernised. Each of the following instruments are enterprise instruments:

(a)an enterprise award‑based instrument;

(b)an enterprise preserved collective State agreement;

(c)a Division 2B enterprise award.

1. When considering a modernisation application, Schedule 6 required the Commission to take into account a number of factors including the circumstances that led to the making of the enterprise instrument, whether a modern award (other than what was then the Miscellaneous Award 2010) would cover those covered by the enterprise instrument but for the enterprise instrument and a range of other considerations.[1] If on application, the Commission decided to make a modern award, the enterprise instrument would either terminate when the new award came into operation[2] or was required to be terminated by the Commission as soon as practicable thereafter.[3] If the Commission decided not to make an award, the enterprise instrument terminated when that decision came into operation.[4]

1. Modernisation applications could only be made to the Commission from 1 July 2009 to 31 December 2013 (the application period).[5] If no application was made during the application period, the enterprise instrument terminated at the end of that period.[6]

1. Item 9(5) of Schedule 6 also requires the Commission to terminate any remaining ‘modernisable instruments’ after all modern enterprise awards made in the enterprise instrument modernisation process have come into operation.[7] A ‘modernisable instrument’ is an award‑based transitional instrument, a transitional APCS (Australian Pay and Classification Scale) or a Division 2B State award.[8]

1. There are a number of modernisable instruments which remain in effect after the completion of the enterprise instrument modernisation process. Attachment A to this statement sets out 51 modernisable instruments that the Commission has identified as not having been terminated. In respect of each instrument, a modernisation application was received but subsequently withdrawn before any decision was made.

1. In addition, the ‘Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union’ known as the Australian Manufacturing Workers’ Union (AMWU) applied under item 4 of Schedule 6 to the Transitional Act (matter EM2013/112) for the Commission to make a modern enterprise award to replace the CHC Helicopters (Aircrew/Rescue Crew) Award 2002 (CHC Award). This application was subsequently adjourned pending the outcome of a separate application made by the AMWU for modern award coverage of the employees in the industry sector concerned, including employees covered by the CHC Award.[9] The Commission ultimately varied a modern award to provide for modern award coverage of the employees in question.[10] The application remains in abeyance, with the AMWU having failed to provide advice as to its status.

1. I consider that it is necessary to resolve the status of these modernisable instruments. Subject only to the proviso that the application in matter EM2013/112 has not yet been determined because of the circumstances earlier described, all modern enterprise awards made in the enterprise instrument modernisation process have come into operation.

1. My provisional view is that:

(1)The application in matter EM2013/112 should be dismissed pursuant to s 587(1)(a) of the Fair Work Act 2009 (Cth), given that the employees covered by it are now covered by a modern award.

(2)Consequent upon (1) above, the CHC Award and the 51 modernisable instruments set out in Attachment A are all required to be terminated under item 9(5) of Schedule 6 to the Transitional Act.

1. Interested parties are invited to respond to my provisional view at [8] by 4:00 pm (AEDT) on Thursday, 26 October 2023.

1. In the absence of any submissions opposing the provisional view, orders dismissing the application in matter EM2013/112 and terminating the identified modernisable instruments will be issued in accordance with my provisional view.

PRESIDENT

Attachment A

#	Matter number	Award
1.	EM2013/158	The Police Association Salaried Officers' (State) Award
2.	EM2013/135	Qenos Pty Ltd (Altona) Award 2003
3.	EM2013/136	Australian Wool Testing Authority Ltd Award 1998
4.	EM2013/137	Murray Goulburn Co-operative Company Limited Award 1999
5.	EM2013/138	Ionising Processing (Irradiation) Award 2002
6.	EM2013/139	Oil Industry - Mobil Oil Australia Ltd - Operations - National Union of Workers Award 2003
7.	EM2013/140	Caltex Terminals Award 2000
8.	EM2013/141	Oil Industry - Mobil Oil Australia Ltd - Altona Refinery - Award 2004
9.	EM2013/131	Shell Manufacturing, Distribution and Supply Award 2002
10.	EM2013/132	Oil Industry - BP Australia Marketing Operations - National Union of Workers Award 2002
11.	EM2013/133	Pacific Terminals (Australia) Pty Ltd - National Union of Workers Award 1999
12.	EM2013/149	Victorian Firefighting Industry Employees Interim Award 2000
13.	EM2013/119	Electrical Power Industry - Snowy Mountains Hydro-Electric Authority - Award 2000
14.	EM2013/123	Groote Eylandt Mining Company Award 2002
15.	EM2013/124	Oil and Gas Industry - Caltex Lytton Refinery - Maintenance Award 2000
16.	EM2013/125	BP Refinery (Bulwer Island) Maintenance Employees Award 2000
17.	EM2013/117	SMEC Award 2000
18.	EM2013/103	TAB Clerical and Administrative Agency Casual Staff Award 2004
19.	EM2013/121	Queensland Alumina Limited Award 2003
20.	EM2013/106	UNiTAB Limited Employees' Award - State 2003
21.	EM2013/122	Bauxite Operations (Comalco Aluminimum Limited - Wepia) Award 2002
22.	EM2013/109	District Health Services - Senior Medical Officers and Resident Medical Offices' Award - State 2003
23.	EM2013/110	Printing (Community Newspaper Group) Award No. A 21 of 1989
24.	EM2013/160	The Fairfax Printers Award 1999
25.	EM2013/129	The Printing (Newspaper) Award 1979
26.	EM2013/130	Electrical, Engineering and Building Trades (West Australian Newspapers Limited) Award 1988
27.	EM2013/116	Print Centre (Canberra Times) Award 2000
28.	EM2013/93	Public Transport Authority (Transwa) Award 2006
29.	EM2013/94	Rail Infrastructure Maintenance Award 2001
30.	EM2013/95	Railway Employees' Award No. 18 of 1969
31.	EM2013/99	The Coal Mining Industry (Mines Rescue Staff) Award, 2005, Queensland
32.	EM2013/86	Minda Incorporated Award
33.	EM2013/87	Dulux Trade Centre Award 2003
34.	EM2013/92	Public Transport Authority Rail Car Drivers (Transperth Train Operations) Award 2006
35.	EM2013/77	Goldenfields Water County Council Enterprise Award 2004
36.	EM2013/79	Royal Flying Doctor Service Radio Staff Award 2000
37.	EM2013/64	Melbourne City Council Award 2001
38.	EM2013/65	Chubb Security Services Cash Processing and Clerical and Administrative Employees (State) Award
39.	EM2013/68	Public Transport Industry - Bus and Tram Operators - TransAdelaide - Award 2001
40.	EM2013/69	Rail Industry (TransAdelaide) Award 2002
41.	EM2013/70	Salaried, Professional and Technical (TransAdelaide) Award 2001
42.	EM2013/71	Community and Public Sector Union (Subtitlers) Award 1999
43.	EM2013/73	The South East Water Limited Senior Officers and Managers Award 2003
44.	EM2013/75	Sydney Water Award 2004
45.	EM2013/80	E. S. Randle & Co Pty Ltd Award - State 2004
46.	EM2013/157	Readymix Holdings (Staff) Award 2003
47.	EM2013/51	Albury-Wodonga Development Corporation Award 2000
48.	EM2013/47	CSL Limited Salesforce Award 1999 (and others)
49.	EM2013/42	Australian Government Solicitor Award 2001
50.	EM2013/97	Postal Services Industry Award 2003
51.	EM2013/48	Medibank Private Limited Award 2004

[1] Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) Sch 6 item 4(5).

[2] Ibid Sch 6 item 9(1).

[3] Ibid Sch 6 item 9(2)(a).

[4] Ibid Sch 6 item 9(3).

[5] Ibid Sch 6 item 4(3).

[6] Ibid Sch 6 item 9(4).

[7] Ibid Sch 6 item 9(5).

[8] Ibid Sch 6 item 9(2)(b).

[9] [2014] FWCFB 5092.

[10] [2019] FWCFB 4748; [2020] FWCFB 2325; [2022] FWCFB 14; [2022] FWCFB 17.

Printed by authority of the Commonwealth Government Printer

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