Termination of instruments

[2011] FWA 5445

[2011] FWA 5445

FAIR WORK AUSTRALIA

DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Item 3 Sch. 5—Transitional instrument

(CT2011/1071)

COMMUNITY AND PUBLIC SECTOR UNION (CENTRAL AND NORTHERN LAND COUNCILS) AWARD 2001
[AP810322/AT810322]

COMMISSIONER SMITH MELBOURNE, 19 AUGUST 2011

Termination of instruments

[1] This decision concerns the termination of instruments which are modernisable under item 3 of Schedule 5 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009.

[2] The Community and Public Sector Union (Central and Northern Land Councils) Award 2001 1and related instrumentswere listed for hearing on 10 August 2011.

[3] A formal objection was made by Mr K Barlow on behalf of the CPSU, the Community and Public Sector Union (CPSU) by way of oral and written submissions dated 12 August 2011, 11 August 2011 and 1 March 2011. The CPSU also made oral and written submissions in relation to the Community and Public Sector Union (Central and Northern Land Councils) Award 2001 before the Full Bench in matter AM2010/53.

[4] Following the hearing written submissions were also received by the Western Australian Local Government Association (WALGA).

[5] The CPSU submitted that it was not practicable to terminate the Community and Public Sector Union (Central and Northern Land Councils) Award 2001 at this time and requested a further period to make an application to vary a modern award if deemed necessary. It was also their submission that the award was not properly considered as part of the award modernisation process. Mr Barlow relied on paragraph 16 of the Full Bench decision of 22 December 2010 2 which provided as follows:

“[16] Before leaving the question of construction, we emphasise the requirement in item 3(2) that what is practicable in relation to a particular instrument determines when the instrument should be terminated. If the termination of an instrument would deprive employees of award coverage or impose unreasonable obligations on employers, it could be concluded that it would not be practicable to terminate the instrument, but it will depend on the circumstances. We deal with this further below in outlining our general approach to the exercise of the discretion in item 3(2).” 3

[6] The Full Bench went on to say at paragraph 35:

“[35] Generally speaking we do not regard the fact that there is no relevant modern award coverage for a particular classification as a proper basis not to terminate the instrument. The classification structures in modern awards were adopted after taking into account the coverage of a range of federal and State awards. Looked at overall, there are changes in coverage affecting employees and employers in a number of ways. The modern award classification structure may constitute an increase or a decrease in the number of classifications covered, depending on the previous position under the relevant federal or State instrument. It would not be appropriate to maintain coverage in modernisable instruments for classifications which the Australian Industrial Relations Commission (AIRC) has decided should not be covered by modern awards, particularly when the extensions to award coverage commenced to operate on 1 January 2010. It is always open to a party to make application to vary the terms of a modern award to include a new classification. Such an application would be dealt with having regard to the statutory provisions and based on the material before the tribunal at the time, including any relevant award history.” 4

[7] WALGA submitted that the Community and Public Sector Union (Central and Northern Land Councils) Award 2001 should be terminated as both respondents have a detailed enterprise agreement and the award confuses the employees of those employers. WALGA also submitted the Local Government Industry Award 2010 5 would provide an effective safety net for those employees.

[8] Similar objections in relation to gaps in coverage that would be created were discussed and decided upon by the Full Bench on 22 December 2011. 6 The Full Bench decision provides a useful summary of the submissions that were made regarding the Community and Public Sector Union (Central and Northern Land Councils) Award 2001:

“[64] The CPSU (PSU Group) submitted that the Community and Public Sector Union (Central and Northern Land Councils) Award 2001 is an enterprise instrument or, in the alternative, it should not be terminated because the employees covered by it are not adequately covered by any modern award. The Northern Land Council submitted that the award covers two distinct entities and is not an enterprise instrument. The Central Land Council made no submission. In relation to the submission that the award is an enterprise instrument, the arguments advanced by the union, including those in written submissions of 22 September 2010, are unconvincing. Land councils are separate corporations. As to the question of modern award coverage, any perceived defect in coverage could be the subject of an application to vary a modern award. It was also submitted that many of the conditions in the award are more beneficial for employees than the conditions in the relevant modern award and for that reason the award should be left to operate in the gap left by the modern award. This approach is at odds with the modern awards objective.” (references removed)

[9] On that basis I have decided to terminate the Community and Public Sector Union (Central and Northern Land Councils) Award 2001, any related roping-in awards, any related transitional Australian Pay and Classification Scales or State reference transitional awards derived from the instrument. An order giving effect to this decision will be issued separately.

COMMISSIONER

Appearances:

K Barlow for the CPSU, the Community and Public Sector Union.

Hearing details:

2011.
Melbourne:
August 10.

 1   AP810322 and AT810322.

 2   2010 [FWAFB] 9916 at paragraph 16.

 3   2010 [FWAFB] 9916.

 4   2010 [FWAFB] 9916.

 5   MA000112.

 6   2010 [FWAFB] 9916 at paragraph 64.

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