The Police Federation of Australia (Victoria Police Branch)
[2014] FWCFB 5254
•17 SEPTEMBER 2014
| [2014] FWCFB 5254 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch. 6A, Item 4 - Application to make a State reference public sector modern award
Fair Work Act 2009
s.168G - Application to make a State reference public sector modern award
(AM2013/27)
POLICE SERVICES INDUSTRY SECTOR ORDER - VICTORIA 1998 | |
State and Territory government administration | |
VICE PRESIDENT WATSON | MELBOURNE, 17 SEPTEMBER 2014 |
Application by The Police Federation of Australia (Victoria Police Branch) to make a State reference public sector modern award - Whether a Victorian Minimum Wage Order is a State reference public sector transitional award - Fair Work (Transitional Provisions and Consequential Amendments) Act 2009, Schedule 6A Item 4, Schedule 6A Item 2, Schedule 3 Item 2A, Schedule 20 Item 1, Schedule 9 Item 7(4) - Fair Work Act 2009, s.168G, s.157, s.158.
Introduction
[1] This decision relates to an application to make a State reference public sector modern award to replace the Police Services Industry Sector Order - Victoria 1998 (the Order) or an award that encompasses the terms of the Order. The application is made by the Police Federation of Australia (Victoria Police Branch) (the PFA) under the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the Transitional Act). An alternative application is made under s.168G to the Fair Work Act 2009 (the Act).
[2] The applications are opposed by the Victorian Chief Commissioner of Police (the Police Commissioner) on jurisdictional grounds. This decision concerns preliminary jurisdictional issues raised by the Police Commissioner. The Police Commissioner submits that the Order was not an award or order capable of modernisation under Schedule 6A to the Transitional Act. In response to the alternative application for a State reference public sector modern award under s.168G of the Act, the Police Commissioner submits that an essential prerequisite for the making of that application in s.168G(3)(a) is not present in this case.
The Jurisdictional Basis under the Transitional Act
[3] The power to make a State reference public sector modern award under the Transitional Act is governed by Item 4 of Schedule 6A to the Transitional Act. The complexity of the transitional provisions to this legislation has been the subject of judicial comment. 1 These provisions are a further example. Item 4 provides:
“4 Making State reference public sector modern awards on application
(1) An employer or organisation that is covered by a State reference public sector transitional award (the current award) may apply to the FWC for the making of a State reference public sector modern award (the proposed award).
(2) The application may be made only during the period starting on the WR Act repeal day and ending at the end of 31 December 2013.
(3) The application must specify the employers, employees and organisations (the proposed parties) proposed to be covered by the proposed award.
(4) The FWC must consider the application, and must make a State reference public sector modern award covering the proposed parties if the FWC is satisfied that:
(a) the proposed parties are covered by State reference public sector transitional awards; and
(b) the employers and organisations that are proposed parties have agreed to the making of the application.
Note: The proposed parties will cease to be covered by State reference public sector transitional awards when the State reference public sector modern award comes into operation: see item 29 of Schedule 3.”
[4] From the terms of Item 4(1) an application can only be made by an employer or organisation covered by a State reference public sector transitional award. That term is defined in Item 2 of Schedule 6A as follows:
“(1) A State reference public sector transitional award is a State reference transitional award or common rule in relation to which the following conditions are satisfied:
(a) the only employers that are expressed to be covered by the award or common rule are one or more specified State reference public sector employers;
(b) the only employees who are expressed to be covered by the award or common rule are specified State reference public sector employees of those employers.
Note: State reference transitional awards and common rules are continued in existence as transitional instruments by Schedule 3.”
[5] A State reference transitional award is defined in Item 2A of Schedule 3 as follows:
“2A Meaning of State reference transitional award and various other expressions associated with State references
(1) A State reference transitional award is a transitional award that covers:
(a) one or more specified State reference employers; and
(b) specified State reference employees of those employers.
Note: A transitional award includes a transitional Victorian reference award.”
[6] The term “transitional award” is governed by previous legislation by virtue of Item 1 of Schedule 20 to the Transitional Act which provides as follows:
“1 Schedule 6 to the WR Act
(1) Schedule 6 to the WR Act (continued Schedule 6) continues to apply on and after the WR Act repeal day in accordance with this Schedule.
(2) Except for instrument content rules and instrument interaction rules, nothing in this Schedule or continued Schedule 6 applies to State reference transitional awards or common rules.
Note: State reference transitional awards or common rules are continued in existence by Schedule 3 as transitional instruments.
(3) Without limiting subitem (1) (but subject to subitem (2)), transitional awards that were in operation under Schedule 6 to the WR Act immediately before the WR Act repeal day continue in operation as continuing Schedule 6 instruments on and after the repeal day in accordance with continued Schedule 6.
Note 1: In addition to provisions of this Schedule, Part 3 of Schedule 2may also affect continuing Schedule 6 instruments.
Note 2: Compliance with continuing Schedule 6 instruments is dealt with in Schedule 16.”
[7] Schedule 6 of the Post WorkChoices Workplace Relations Act 1996 relevantly provides that a transitional award is an award continued in force by sub-clause 4(2) of that schedule. Only awards are continued in force by that sub-section.
[8] The Police Commissioner submits that Victorian Minimum Wage Orders were not awards as they were not made by the Australian Industrial Relations Commission’s award making power. 2 Further, it is submitted that the legislative underpinning for making minimum wage orders was repealed in 2006 and there were no savings provisions for such instruments. The PFA submits that the Minimum Wage Order became a transitional minimum wage instrument and can be varied by authority of Item 7(4) to Schedule 9 to the Transitional Act. This item provides:
“(4) A transitional APCS can be varied or terminated under:
(a) item 3 of Schedule 5 (which deals with variation and termination of transitional APCSs to take account of the Part 10A award modernisation process); or
(b) item 9 of Schedule 6 (which deals with variation and termination of transitional APCSs to take account of the enterprise instrument modernisation process).”
[9] In our view, the PFA has not established that the Order can be replaced by a State reference public sector modern award as the Order is not an award or a transitional award and there is no express saving or application of the modernisation process under Schedule 6A to the Transitional Act with respect to the Order. The application under Schedule 6A must therefore be dismissed.
[10] As we have concluded that the Order cannot be subject to the Schedule 6A modernisation process, it is unnecessary to consider the further submission of the Police Commissioner that the PFA is not covered by the Order and therefore has no standing to make the application.
The Jurisdictional Basis under the Fair Work Act
[11] The alternative application for a State reference public sector modern award is made under s.168G and s.158 of the Act. Section 168G provides:
“168G Making State reference public sector modern awards on application
(1) The FWC may make a State reference public sector modern award (the proposed award) only on application under section 158 by:
(a) a State reference public sector employer; or
(b) an organisation that is entitled to represent the industrial interests of a State reference public sector employer or of a State reference public sector employee.
(2) The application must specify the employers, employees and organisations (the proposed parties) proposed to be covered by the proposed award.
(3) The FWC must consider the application, and must make a State reference public sector modern award covering the proposed parties if the FWC is satisfied that:
(a) the employers and organisations that are proposed parties have agreed to the making of the application; and
(b) either:
(i) none of the employers and employees that are proposed parties are already covered by a State reference public sector modern award; or
(ii) if there are employers and employees that are proposed parties and that are already covered by a State reference public sector modern award (the current award)—it is appropriate (in accordance with section 168L) to vary the coverage of the current award so that the employers or employees cease to be covered by the current award.
(4) The FWC must not make a State reference public sector modern award otherwise than in accordance with this Division or in accordance with Part 2 of Schedule 6A to the Transitional Act.”
[12] The PFA submits that s.168G is underpinned by s.158 and s.157 of the Act and the latter provides a general power to make a modern award outside the system of 4 yearly reviews of modern awards if the Commission is satisfied that making the award is necessary to achieve the modern awards objective. It is submitted that this provision confers a discretion on the Commission and on a proper construction of s.168G this discretion is not modified. It merely supplements the provisions regarding the making of a modern award. It submits that to construe the provision in the manner contended for by the Police Commissioner renders the general discretion to make a modern award superfluous.
[13] The Police Commissioner submits that s.168G(3) should properly be construed as a precondition for the making of an application for a new State reference public sector award and that the lack of consent by the Police Commissioner deprives the PFA of the capacity to make the application. Therefore, the Commission lacks jurisdiction to consider it. The Police Commissioner submits that s.168G is an example of a provision where there is no discretion to exercise the power other than those where the exercise of power is required.
[14] These competing submissions require an interpretation of the meaning and effect of the legislative provisions. Both parties rely on the leading High Court case of Project Blue Sky Inc v Australian Broadcasting Authority. 3 It is well established that legislation must be construed in a way that is consistent with the language and purpose of the legislative provisions as a whole. The context, general purpose and policy of a provision have been held to be sure guides as to its meaning. When parliament confers a power and directs by statute the manner of its exercise, the provisions need to be read together. The manner of its exercise will impact on the ambit of the power.4
[15] Section 168G was inserted into the Act by the Fair Work (State Referral and Consequential and Other Amendments) Act 2009. In the Minister’s Second Reading Speech it is said that the Bill enables States to refer matters to the Commonwealth with a view to establishing a uniform national workplace relations system for employers and employees in the private sector, noting that Victoria was the only referring State at the time. The Minister then said:
“The Bill also provides scope for referring States to choose the extent to which the Act would cover their public sector workforces.”
[16] Later in the speech is the following:
“Treatment of State public sector employees
The Bill makes clear that a State is a referring State for the purposes of the legislative scheme, even though the matters referred may be subject to certain exclusions relating to public sector employment.
This is consistent with the Australian Government’s policy to enable referring States to decide the extent to which their public sector workforces should be covered by the new system.
The Bill will also amend the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 and the Fair Work Act to implement a process for the making of State reference public sector modern awards.
In the first instance, these awards will cover public sector employers and employees in Victoria that are within the scope of Victoria’s reference of power.”
[17] Item 62 of the Explanatory Memorandum to the Bill deals with the insertion of Division 8 into Part 2-3 of the Act. It largely paraphrases the terms of each section. In relation to s.168G it provides:
“New clause 168G deals with the making of State reference public sector modern awards. Under the FW Act, these awards may be made on application by a State reference public sector employer or an organisation that is entitled to represent the industrial interests of a State reference public sector employee or a State reference public sector employer.
The persons to be covered by the proposed award must be specified in the application. FWA is required to make a State reference public sector modern award on application by a person with standing, if it is satisfied that:
● the employers and organisations that will be covered by the modern award agree to its being made (this does not require agreement on the terms of the award itself); and either:
● no person who will be covered by the award is already covered by a State reference public sector modern award; or
● it is appropriate to vary the coverage of an existing State reference public sector modern award so that those persons will no longer be covered by that award. These persons can then become covered by a new State reference public sector modern award made under the FW Act.
A State reference public sector modern award may only be made under Division 8 of Part 2-3 of the FW Act or under proposed Schedule 6A to the T&C Bill.”
[18] We turn to consider the text of the disputed provision in the context of the other provisions dealing with modern awards. Part 2-3 of the Act deals with modern awards. Division 1 is introductory. Division 2 contains overarching provisions including the modern awards objective. Division 3 deals with the terms of modern awards. Division 4 deals with 4 yearly reviews of modern awards. The obligation to conduct the 4 year review is expressed in mandatory terms. The power to make determinations varying, making or revoking modern awards is discretionary.
[19] Division 5 deals with the exercise of modern award powers outside 4 yearly reviews and annual wage reviews. The power to vary modern awards is subject to satisfaction of a test that the variation outside the 4 yearly reviews is necessary to achieve the modern awards objective. FWC can make a determination of its own initiative or on application under s.158 by a party able to make such an application. Other situations, such as removing an ambiguity or updating names are covered by similar provisions.
[20] Division 6 contains general provisions relating to modern award powers. It contains provisions which limit the scope of discretions to certain circumstances, such as limitations on powers to make a determination with retrospective effect.
[21] Division 7 deals with additional provisions relating to modern enterprise awards. It prohibits the Commission from making a modern enterprise award under this Part of the Act and limits the extent to which it may revoke or vary a modern enterprise award. A determination revoking a modern enterprise award can only be made on application under s.158. A note to s.168C states that modern enterprise awards can only be made as part of the enterprise award modernisation process in the Transitional Act.
[22] Division 8 contains additional provisions relating to State reference public sector modern awards. Section 168E contains relevant definitions. Section 168F contains the State reference public sector awards objective. Section 168G is headed “Making State reference public sector modern awards on application”. The section is set out in full at paragraph [11] above. Other provisions of Division 8 deal with content, commencement, revocation and coverage of State reference public sector modern awards. These provisions contain preconditions for revocation and varying coverage and prohibit retrospectivity of any new State reference public sector modern award.
[23] By subsection (4) of s.168G the Commission is prohibited from making a State reference public sector award otherwise than in accordance with Division 8 or Schedule 6A to the Transitional Act. This includes the obligation to recognise the State reference public sector modern awards objective and the provisions regarding applications in s.168G itself.
[24] The critical question is whether subsection (3) of s.168G operates as a pre-condition to making applications, such as to require consent to the making of an application, or alternatively requires an application to be considered and an award made if consent and the other elements of the subsection are satisfied.
[25] This question involves a difficult construction task such that it is necessary to consider the policy behind the provision. In our view, the better interpretation is that subsection (4) establishes mandatory requirements for the making of a State reference public sector modern award, and that subsections (1), (2) and (3) contain mandatory requirements for an application to be made and considered. An award can only be made, and must be made if those circumstances are present. A key reason for preferring this interpretation is the policy behind the provisions.
[26] Apart from a circumstance when an existing enterprise award instrument exists, the only avenue for the making of a State reference public sector modern award is under Division 8. An interpretation that consent is required by the proposed parties to the proposed award is consistent with the statement by the Minister in the Second Reading Speech and gives effect to that statement of intention.
[27] If the alternative interpretation is adopted, and the provision amounts to no more than a requirement to make an award when consent and exclusive coverage is present, the intention that States can decide the extent of their public sector coverage is not achieved. An award can be made in relation to State public sector employees not covered by any Federal instrument without the consent, and against the opposition, of a State.
[28] We note the wording of other provisions of the Act such as s.418 and s.424. The power conferred on the Commission by these provisions is expressed as an obligation to make an order if the Commission is satisfied of specified circumstances. The structure of these provisions is similar to s.168G(3). The established meaning of these provisions is that a relevant order can only be made, and must be made, if those circumstances are found to exist. Significantly, s.168G(4) achieves the same outcome. The specific provision in s.168G(4) clearly overrides the generality of other provisions. 5
[29] For these reasons, we consider that the application is not made in accordance with s.168G(3), the application is not therefore in accordance with Division 8, and the Commission is not able to make a State reference public sector award by virtue of s.168G(4).
Conclusions
[30] In the analysis above we have concluded that the application to make a State reference modern award under Schedule 6A of the Transitional Act is not valid because there is no State reference public sector transitional award currently in existence that can be subject to the modernisation process.
[31] We have further concluded that there is no power to make an application under s.158 and s.168G because the requirements of s.168G(3) are not satisfied in this case.
[32] Because the Commission lacks jurisdiction to consider the applications, the applications by the PFA must be dismissed.
VICE PRESIDENT WATSON
Appearances:
Ms L. Miller and Mr C. Kennedy for The Police Federation of Australia (Victoria Police Branch).
Mr C. O’Grady, of counsel, and Ms K. Lehane, solicitor, for the Victorian Chief Commissioner of Police.
Hearing details:
2014.
Melbourne.
21 July.
Final written submissions:
The Victorian Chief Commissioner of Police on 25 July 2014.
The Police Federation of Australia (Victoria Police Branch) on 1 August 2014.
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<Price code C, AT793358 PR553858 >
1 Deva v University of Western Sydney [2011] FCA 199.
2 Print P7364.
3 (1998) 194 CLR 355.
4 Ibid per Brennan J at [34].
5 Perpetual Executors and Trustees Association of Australia Ltd v Federal Commissioner of Taxation (1948) 77 CLR 1; Refrigerated Express Lines (Australasia) Pty Ltd v Australian Meat & Livestock Corporation (No 2) (1980) 29 ALR 333; Smith, Ferguson, Forti, Grimshaw & Coburn v R (1994) 181 CLR 338; Hoffman v Chief of Army (2004) 137 FCR 520; Ombudsman v Laughton (2005) 64 NSWLR 114; Re Venturex Resources Ltd (2009) 177 FCR 391.