United Firefighters' Union of Australia
[2014] FWCFB 3653
•20 JUNE 2014
[2014] FWCFB 3653 |
FAIR WORK COMMISSION |
DECISION |
Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch. 6, Item 4 - Application to make a modern award to replace an enterprise instrument.
(EM2013/150)
METROPOLITAN FIRE AND EMERGENCY SERVICES BOARD COMMANDERS INTERIM AWARD 2002
Fire fighting services | |
VICE PRESIDENT WATSON | MELBOURNE, 20 JUNE 2014 |
Preliminary Full Bench decision dealing with the threshold issues for the Metropolitan Fire and Emergency Services Board Commanders Interim Award 2002- Factors to be considered when making a modern enterprise award - application to dismiss matter on a threshold basis dismissed. Fair Work (Transitional Provisions and Consequential Amendments Act 2009 Schedule 6 sub-item 4(5).
[1] In proceedings on 28 May 2014 the Metropolitan Fire and Emergency Services Board (the MFB) submitted that an application by the United Firefighters Union of Australia (the UFU) to modernise the Metropolitan Fire and Emergency Services Board Commanders Interim Award 2002 (the Commanders Award) under Schedule 6 of the Fair Work (Transitional Provisions and Consequential Amendments Act 2009 (the Transitional Act) should be dismissed on a threshold basis. The grounds for the application include the small percentage of MFB commanders covered by the award and the submission that the award was never intended to have ongoing application. This decision deals with the application to dismiss the application on these grounds.
[2] At the hearing of this matter Mr F Parry QC with Mr R Dalton represented the MFB and Mr J McKenna represented the UFU.
[3] The role of the Commission in an application to make a modern enterprise award is governed by sub-item 4(5) of Schedule 6 to the Transitional Act which provides:
(5) In deciding whether or not to make a modern enterprise award, and in determining the content of that award, the FWC must take into account the following:
(a) the circumstances that led to the making of the enterprise instrument rather than an instrument of more general application;
(b) whether there is a modern award (other than the miscellaneous modern award) that would, but for the enterprise instrument, cover the persons who are covered by the instrument, or whether such a modern award is likely to be made in the Part 10A award modernisation process;
(c) the content, or likely content, of the modern award referred to in paragraph (b) (taking account of any variations of the modern award that are likely to be made in the Part 10A award modernisation process);
(d) the terms and conditions of employment applying in the industry in which the persons covered by the enterprise instrument operate, and the extent to which those terms and conditions are reflected in the instrument;
(e) the extent to which the enterprise instrument provides enterprise-specific terms and conditions of employment;
(f) the likely impact on the persons covered by the enterprise instrument, and the persons covered by the modern award referred to in paragraph (b), of a decision to make, or not make, the modern enterprise award, including any impact on the ongoing viability or competitiveness of any enterprise carried on by those persons;
(g) the views of the persons covered by the enterprise instrument;
(h) any other matter prescribed by the regulations.
[4] It is clear that the matters now raised by the MFB are likely to fall within the above list of factors the Commission is required to take into account in determining whether to make a modern enterprise award. The item requires the Commission to make an overall judgment based on all of the factors that may be relevant to the case at hand. In our view it is not appropriate to make a preliminary determination of the matter based on a piecemeal consideration of the circumstances. For this reason we dismiss the application by the MFB. The substantive application will be relisted in due course.
VICE PRESIDENT
Appearances:
Mr. F. Parry, QC, and with him R Dalton for Metropolitan Fire and Emergency Services Board.
Mr. J. McKenna, of Counsel for United Firefighters Union of Australia
Hearing details:
2014
Melbourne
28 May
Final written submissions:
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