Western Australian Local Government Association
[2014] FWC 808
•31 JANUARY 2014
[2014] FWC 808 |
FAIR WORK COMMISSION |
DECISION AND REASONS FOR DECISION |
Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch. 5, Item 6 - Review of all modern awards (other than modern enterprise and State PS awards) after first 2 years
Western Australian Local Government Association
(AM2012/20)
Australian Municipal, Administrative, Clerical and Services Union
(AM2012/130)
COMMISSIONER CLOGHAN | PERTH, 31 JANUARY 2014 |
Sch.5, Item 6 - Review of all modern awards (other than modern enterprise and State PS Awards) after first 2 years re: clauses 9, 21, 23 24, 25.
[1] The Fair Work Commission (Commission) received applications from the:
● Western Australian Local Government Association (WALGA) (AM2012/20):
● Australian Municipal, Administrative, Clerical and Services Union (ASU) (AM2012/130); and
● New South Wales Local Government Clerical, Administrative, Energy, Airlines and Utilities Union (USU) (AM2012/168).
[2] The applications by WALGA and the ASU are made to vary a modern award pursuant to Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Transitional Act) Part 2 of Schedule 5.
[3] The application by the USU is made pursuant to ss.157-160 of the Fair Work Act 2009 (FW Act) and was subsequently withdrawn.
[4] The applications were forwarded to me for determination.
[5] While WALGA was the applicant in AM2012/20, its submissions were on behalf of Local Government Associations (LGAs) which included the Municipal Association of Victoria, Local Government Association of Northern Territory, Local Government Association of Tasmania, Western Australia Local Government Association, Local Government Association of South Australia, Local Government Association of Queensland and Local Government and Shires Association of New South Wales.
[6] On 13 May 2013 and 31 January 2014 I issued Determinations (PR536549 and PR547349) which varied the Local Government Industry Award 2010 (LGI Modern Award) by consent of the LGAs and the ASU in accordance with the above applications.
[7] This decision and reasons for decision concern those components of the ASU application which are opposed by the LGAs.
[8] The contested matters were the subject of a hearing and written submissions.
VARIATIONS SOUGHT BY THE ASU
[9] The variations sought by the ASU and opposed by the LGAs are set out as follows.
Variation 1
9A Dispute Resolution Training
[10] The ASU seek the insertion of a new clause “9A Dispute Resolution Training” into the LGI Modern Award which provides that a workplace representative shall be entitled to, and the employer shall grant, up to five days leave each year, non cumulative, to attend courses by an accredited training provider. The conditions relating to attendance at the courses are set out in the new clause.
[11] The ASU submit that the proposed clause to be inserted is “lifted” directly from the Local Government Officers (Western Australia) Award 1999 (LGO Western Australia Award) and the Municipal Employees (Western Australia) Award 1999 (ME Western Australia Award). Further, the ASU submit that similar provisions are contained in 14 modern awards of the Commission.
Variation 2
Delete clauses 21.2(b)(vii) and (ix) and insert new subclause 21.2(d)
[12] Currently the LGI Modern Award provides that employees in the following roles or work areas can be required to work from Monday to Sunday:
● (vii) garbage, sanitary and sullage services;
● (ix) libraries.
[13] The ASU is seeking for employees in the “garbage, sanitary and sullage services” that the ordinary hours be Monday to Friday and Library Officers from Monday to noon on a Saturday.
[14] The ASU wish to reassert the provisions that were contained in the LGO Western Australia Award 1.
Variation 3
Delete subclause 21.3 Span of ordinary hours and insert in lieu a new subclause
[15] Existing subclause 21.3 of the LGI Modern Award provides that the ordinary hours of work on a day on which ordinary hours can be worked will be between 6:00 am and 6:00 pm except for employees engaged in various work areas.
[16] In the first instance, the ASU is seeking to reduce the span of ordinary hours from 6:00 am to 5:00 pm.
[17] In addition, the ASU is seeking to vary the “exception” provisions in the following work areas as follows:
Current Provision | Proposed Variation |
21.3(a)(ii) libraries 8:00 am - 9:00 pm | 8:00 am to 8:00 pm |
Environmental Health Officers | 7:00 am to 6:00 pm |
Garbage, sanitary and sullage services 5:00 am to 10:00 pm | Midnight to 5:00 pm |
[18] The ASU submit that the proposed variations reflect the provisions contained in the LGO Western Australia Award and the ME Western Australia Award 2.
Variation 4
Delete subclause 21.5 Maximum ordinary hours in a day and insert in lieu a new subclause
[19] Currently, pursuant to the LGI Modern Award, an employee may work up to a maximum of 10 ordinary hours on any day/shift, or by agreement, up to a maximum of 12 ordinary hours.
[20] The variation proposed by the ASU to the LGI Modern Award is that the maximum be 8 ordinary hours on any day/shift, or by agreement, 10 ordinary hours. There are exceptions to the general provision for Law Enforcement, Airport and Recreation Clerical Officers who are able to work to a maximum of 10 hours in any one day.
[21] In support of the proposed variation, the ASU submit that these provisions reflect the conditions which previously existed in the LGO Western Australia Award 3.
Variation 5
Delete 23.3 Weekend penalties for recreation centres and community services and insert in lieu a new provision
[22] The current subclause 23.3 in the LGI Modern Award provides that employees engaged in recreation centres or community services are not entitled to weekend penalty rates for ordinary hours worked between 5:00 am and 10:00 pm.
[23] The ASU are seeking to replace the existing subclause with what is described as a “special loading” for ordinary hours worked by Library Officers, Law Enforcement and Airport Officers, Caretakers, Caravan Park Managers and Recreation Clerical Officers. It is notable in the proposed variation, Library Officers are to receive a 10% loading for all ordinary hours worked.
[24] The ASU submit that the proposed variation arises out of the LGO Western Australia Award and the ME Western Australia Award 4.
[25] In addition, the ASU seek to support their proposed variation by highlighting the necessity to compensate employees for working unsociable hours 5.
Variation 6
Delete subclause 24.2(b) and insert a new subclause
[26] Subclause 24.2(b) of the LGI Modern Award provides for overtime worked on a Sunday to be paid at the rate of double time.
[27] The ASU propose a new subclause in which all overtime worked from 12 noon on a Saturday and all day Sunday will be paid at the rate of double the ordinary rate of pay.
[28] The ASU submit that the proposed variation is consistent with the previous LGO Western Australia Award and the ME Western Australia Award 6.
Variation 7
Delete subclause 24.3(b) and insert in lieu a new subclause
[29] Existing subclause 24.3(b) of the LGI Modern Award provides that time off worked in lieu of the payment of overtime shall be on a hour for hour basis.
[30] The ASU is seeking a variation which provides that time off in lieu of the payment of overtime shall be the equivalent of the amount of overtime worked multiplied by he appropriate overtime rate.
[31] In support of the proposed variation to the LGI Award, the ASU refer to similar provisions in the LGO Western Australia Award and the “not unusual nature of the arrangement” 7.
Variation 8
Delete subclause 24.6(b) and insert in lieu a new subclause
[32] Existing subclause 24.6(b) provides for an employee, where on-call, to be paid an on-call allowance of one hour of the “standard” rate Monday to Friday; one and a half of the “standard” rate on a Saturday and double the “standard” rate on a Sunday.
[33] The ASU are seeking to vary the LGI Modern Award to provide that “where the employee is on-call, the employee will be paid the ordinary hourly rates for each hour the employee is required to hold themselves in readiness for work”.
[34] The ASU refer, in support of the proposed variation, to a similar provision in the LGO Western Australia Award 8 and two further examples, VicRoads and Powercar Australia9.
Variation 9
Insert new subclause 25.1A(a) and (b)
[35] The proposed new subclause 25.1A(a) in the LGI Modern Award seeks that, in addition to the annual leave provided for in the National Employment Standards (NES), “a Town or Shire Engineer or Environmental Health Officers shall be allowed one week’s leave (as compensation for other circumstances of employment) after a period of 12 months continuous service with the employer. Where the relevant employee is engaged only for part of a 12 month period, the employee accrues the leave on a pro-rata basis”.
[36] New subclause 25.1A(b) seeks that the LGI Modern Award be varied to provide, beyond the NES provisions, an additional one week’s leave for all employees (other than a Town or Shire Engineer or Environmental Health Officer) whose “head office” is situated north of the 26th parallel of latitude. Similarly to subclause 25.1A(a), the provision would be applicable on a pro-rata basis where the employee was engaged for less than 12 months.
[37] The ASU in support of the new subclause refer to similar provisions in the LGO Western Australia Award and the ME Western Australia Award.
RELEVANT LEGISLATIVE FRAMEWORK
[38] Item 6 of Schedule 5 to the Transitional Act provides:
“6 Review of all modern awards (other than modern enterprise awards and State reference public sector modern awards) after first 2 years
(1) As soon as practicable after the second anniversary of the FW (safety net provisions) commencement day, FWC must conduct a review of all modern awards, other than modern enterprise awards and State reference public sector modern awards.
(2) In the review, FWC must consider whether the modern awards:
(a) achieve the modern awards objective; and
(b) are operating effectively, without anomalies or technical problems arising from the Part 10A award modernisation process.
(2A) The review must be such that each modern award is reviewed in its own right. However, this does not prevent FWC from reviewing 2 or more modern awards at the same time.
(3) FWC may make a determination varying any of the modern awards in any way that FWC considers appropriate to remedy any issues identified in the review.
(4) The modern awards objective applies to FWC making a variation under this item, and the minimum wages objective also applies if the variation relates to modern award minimum wages.
(5) FWC may advise persons or bodies about the review in any way FWC considers appropriate.
(6) Section 625 of the FW Act (which deals with delegation by the President of functions and powers of FWC) has effect as if subsection (2) of that section included a reference to FWC’s powers under subitem (5).”
[39] Section 134 of the Act sets out the modern awards objective:
“134 The modern awards objective
(1) The FWC must ensure that modern awards, together with the National Employment Standards, provide a fair and relevant minimum safety net of terms and conditions, taking into account:
(a) relative living standards and the needs of the low paid; and
(b) the need to encourage collective bargaining; and
(c) the need to promote social inclusion through increased workforce participation; and
(d) the need to promote flexible modern work practices and the efficient and productive performance of work; and
(e) the principle of equal remuneration for work of equal or comparable value; and
(f) the likely impact of any exercise of modern award powers on business, including on productivity, employment costs and the regulatory burden; and
(g) the need to ensure a simple, easy to understand, stable and sustainable modern award system for Australia that avoids unnecessary overlap of modern awards; and
(h) the likely impact of any exercise of modern award powers on employment growth, inflation and the sustainability, performance and competitiveness of the national economy.
This is the modern awards objective.”
CONSIDERATION
Modern Awards Review 2012 Decision
[40] The parties referred to various statements made by the Full Bench in the Modern Awards Review 2012 Decision [2012] FWAFB 5600 (Review Decision) concerning the approach to be taken as to the conduct of the review of the LGI Modern Award. For the purposes of this application, I consider the following extracts from the Review Decision to be relevant:
“[40] There is a degree of overlap between the matters to which ss.159 and 160 are directed and what might be regarded as “anomalies or technical problems” within the meaning of subitem 6(2)(b) of Schedule 5. But in some respects the terms of subitem 6(2)(b) are more limited in that it directs attention to whether modern awards “are operating effectively, without anomalies or technical problems arising from the Part 10A award modernisation process”. [emphasis added] Hence the “anomalies or technical problems” referred to are those which have arisen from the Part 10A process. Sections 159 and 160 of the FW Act are not so confined.
[41] In the event that the Review of a modern award identifies an ambiguity or uncertainty or an error, or there is a need to update or omit the name of an entity mentioned in the award, and there is some doubt as to whether the matter falls within the scope of subitem 6(2)(b), then the Tribunal may exercise its powers under ss.159 or 160, on its own initiative. Of course interested parties should be provided with an opportunity to comment on any such proposed variation.
[82] The starting point in our consideration of this issue is to construe Item 6 according to the language of the provisions, having regard to their context and legislative purpose. The context includes the legislative history.
[83] As to the historical context the award modernisation process was conducted by the AIRC under Part 10A of the former WR Act. The process took place in the period from April 2008 to December 2009 and was conducted in accordance with a written request (the award modernisation request) made by the Minister for Employment and Workplace Relations to the President of the AIRC. The award modernisation process was completed in four stages, each stage focussing on different industries and occupations. All stakeholders and interested parties were invited to make submissions on what should be included in modern awards for a particular industry or occupation. Separate processes, including variously, the provision of submissions, hearings and release of draft awards, were undertaken in respect of the creation of each modern award to ensure parties were able to make submissions and raise matters of concern relevant to particular awards. By the end of 2009 the AIRC had reviewed more than 1500 state and federal awards and created 122 industry and occupation based modern awards.
[84] The award modernisation request and variations were issued in accordance with s.576C of Part 10A of the WR Act. Part 10A was repealed on 1 July 2009 (Item 2 of Schedule 1 to the Transitional Provisions Act). Despite that repeal, Part 10A was preserved by Item 2 of Schedule 5 to the Transitional Provisions Act in order to allow the award modernisation process to be completed. The award modernisation process required by Part 10A of the WR Act has been completed.
[85] Two points about the historical context are particularly relevant. The first is that awards made as a result of the award modernisation process are now deemed to be modern awards for the purposes of the FW Act (see Item 4 of Schedule 5 of the Transitional Provisions Act). Implicit in this is a legislative acceptance that the terms of the existing modern awards are consistent with the modern awards objective. The second point to observe is that the considerations specified in the legislative test applied by the Tribunal in the Part 10A process is, in a number of important respects, identical or similar to the modern awards objective which now appears in s.136. ...
[86] Although the Tribunal is not, as a non-judicial body, bound by principles of stare decisis, as a matter of policy and sound administration it has generally followed previous Full Bench decisions relating to the issue to be determined, in the absence of cogent reasons for not doing so. In another context three members of the High Court observed in Nguyen v Nguyen:
“When a court of appeal holds itself free to depart from an earlier decision it should do so cautiously and only when compelled to the conclusion that the earlier decision is wrong. The occasion upon which the departure from previous authority is warranted are infrequent and exceptional and pose no real threat to the doctrine of precedent and the predictability of the law: see Queensland v The Commonwealth (1977) 139 CLR 585 per Aickin J at 620 et seq.”
[88] These policy considerations tell strongly against the proposition that the Review constitutes a “fresh assessment” unencumbered by previous Tribunal authority.
[89] In circumstances where a party seeks a variation to a modern award in the Review and the substance of the variation sought has already been dealt with by the Tribunal in the Part 10A process, the applicant will have to show that there are cogent reasons for departing from the previous Full Bench decision, such as a significant change in circumstances, which warrant a different outcome.
[90] A number of other considerations have also led us to reject the proposition that the Review should proceed on the basis of a fresh assessment of modern awards unencumbered by previous Tribunal authority.
[91] It is important to recognise that we are dealing with a system in transition. Item 6 of Schedule 5 forms part of transitional legislation which is intended to facilitate the movement from the WR Act to the FW Act. The Review is a “one off” process required by the transitional provisions and is being conducted a relatively short time after the completion of the award modernisation process. The transitional arrangements in modern awards continue to operate until 1 July 2014. The fact that the transition to modern awards is still occurring militates against the adoption of broad changes to modern awards as part of the Review. Such changes are more appropriately dealt with in the 4 year review, after the transition process has completed. In this context it is particularly relevant to note that s.134(1)(g) of the modern awards objective requires the Tribunal to take into account:
“the need to ensure a simple, easy to understand, stable and sustainable modern award system for Australia . . .”
[93] The second textual consideration is that, as we have noted previously, Item 6 does not prescribe how the Tribunal is to be constituted for the purpose of conducting the Review. This may be contrasted with the 4 yearly reviews provided in s.156 and the award modernisation process under Part 10A of the WR Act, both of which are to be conducted by a Full Bench. The fact that the Review of a modern award may be conducted by a single member also suggests that the legislature contemplated that the Review would be more confined in scope that the 4 yearly reviews in s.156.
[94] The above considerations have led us to conclude that the Review is intended to have a narrower scope than the 4 yearly reviews provided in the FW Act. This conclusion is also supported by the relevant extrinsic material.
[99] To summarise, we reject the proposition that the Review involves a fresh assessment of modern awards unencumbered by previous Tribunal authority. It seems to us that the Review is intended to be narrower in scope than the 4 yearly reviews provided in s.156 of the FW Act. In the context of this Review the Tribunal is unlikely to revisit issues considered as part of the Part 10A award modernisation process unless there are cogent reasons for doing so, such as a significant change in circumstances which warrants a different outcome. Having said that we do not propose to adopt a “high threshold” for the making of variation determinations in the Review, as proposed by the Australian Government and others.” (footnotes omitted)
Historical Context of LGI Modern Award
[41] In its decision in making the LGI Modern Award, the Full Bench [2009] AIRCFB 945 stated that its Decision was to be read in conjunction with previous decisions, its statement of 25 September 2009 and the various exposure drafts 10.
[42] Materially, the ASU variations are to vary clauses that were contained in the September 2009 Exposure Draft and subsequently the LGI Modern Award made on 4 December 2009.
[43] When making the LGI Modern Award on 4 December 2009, the Full Bench made the following observation:
“[143] Hours of work and rostering is the area that caused us greatest difficulty. The exposure draft contained a set of provisions based on a draft award proposed by the LGAs. Those provisions are unusual in a number of respects. We note in particular a continuing reservation about the extent of the areas in which ordinary hours can be worked Monday to Sunday. The ASU sought the replacement of that entire section with a more conventional set of clauses. Not without some hesitation, we have decided to retain the approach in the exposure draft. The industry of local government, as we have defined it, covers a vast array of activities. It is apparent that the LGAs worked hard to craft a set of clauses that would provide the flexibility reasonably required in an area such as local government. There is no suggestion that the LGAs’ intent was to prejudice employees. On the contrary, it is apparent that the LGAs have made a genuine attempt to propose a reasonable solution to a very difficult problem. Generally speaking, the ASU has not detailed how particular groups or classes of employees will be prejudiced by the approach in the exposure draft. On the other hand, we have very little information on how the clauses proposed by the ASU would impact on employees in different parts of Australia. The great variation in terms and conditions in the relevant awards and NAPSAs makes that assessment exceptionally difficult without the assistance of industry parties. Nothing we have said should be taken as a criticism of the ASU. We appreciate that the ASU, like other parties with an interest in a number of industries in the current process, has had its resources stretched in endeavouring to make extensive submissions in those industries. This aspect of the modern award can be revisited at a suitable time, perhaps in the context of an application to vary the award. The position of employees is largely protected for the time being by the standard transitional provisions.”
[44] The LGAs, ASU and a number of other organisations participated in the process of award modernisation pursuant to Part 10A of the Workplace Relations Act 1996 (WR Act) for local government administration. The process included submissions, proposed draft awards, and appearances before Vice President Lawler and the Full Bench which ultimately determined the terms of the LGI Modern Award.
[45] On 24 July 2009, the ASU filed both a pre-drafting submission and its proposed draft award. The LGAs also filed its pre-drafting submission and proposed draft award.
[46] Further submissions and suggested draft awards were provided to the Australian Industrial Relations Commission (AIRC) and the ASU.
[47] On 25 September 2009, the AIRC published its Exposure Draft Local Government Industry Award 2010.
[48] On 16 October 2009, the ASU filed its response to the Exposure Draft LGI Modern Award. The ASU, in its response, concede that it addressed proposed variations 2 to 7. The LGAs submit that the ASU addressed variations 2 to 7 and the issue of training in variation 1.
[49] On 16 October 2009, the LGAs filed its response to the Exposure Draft LGI Modern Award. The submission addressed variations 1 to 7.
[50] On 26 and 27 October 2009, the ASU and LGAs filed respectively their final written submissions relating to the variations now sought by the ASU.
[51] On 4 December 2009, a Full Bench of the AIRC issued its Decision in respect of Local Government administration and made the LGI Modern Award.
[52] I am satisfied that with respect to the proposed variations by the ASU, the Full Bench of the AIRC, in making the LGI Modern Award, had before it extensive submissions and supporting evidence in which to include the variations now sought by the ASU. The Full Bench of the AIRC chose not to include the proposed variations in its final determination of what terms should be contained in the LGI Modern Award.
[53] The Full Bench in its Review Decision regarding the modern awards review referred to the historical context in the making of modern awards and the scope of the review. I have outlined, an abbreviated version of the process for Local Government administration, and now turn to the scope of the review of the LGI Modern Award.
Scope of Review of LGI Modern Award
[54] Importantly, the Full Bench in the Review Decision state that:
“...awards made as a result of the award modernisation process are now deemed to be modern awards for the purposes of the FW Act...Implicit in this is a legislative acceptance that the terms of the existing modern awards are consistent with the modern awards objective...” 11
[55] Further, the Review Decision provides that “policy consideration tell strongly against the proposition that the Review constitutes a “fresh assessment” unencumbered by previous Tribunal authority” 12. In addition to policy considerations, the Full Bench for other reasons, “...reject[ed] the proposition that the Review should proceed on the basis of a fresh assessment of modern awards unencumbered by previous Tribunal authority.”13
[56] While the Full Bench did not “close the door” completely on variations to modern awards, “the applicant will have to show that there are cogent reasons for departing from the previous Full Bench decision [in making the modern award], such as a significant change in circumstances, which warrant a different outcome”. 14
[57] The ASU, despite varying language, advance the primary reason for the proposed variations as to give “appropriate weight to the provisions of the Western Australian and Northern Territory underpinning awards” 15 . With respect to variation 1, the ASU also adds that similar clauses are provided for in other modern awards.
[58] The LGAs respond by submitting“...that the LGI Award should [not] be weighted disproportionately according to what the union considers to be desirable terms and conditions of employment that exist in Western Australia and/or the Northern Territory. The ASU application seeking to “cherry pick” where it suits them and to ignore the “reasonable solution to a very difficult problem” that was debated before and decided by a Full Bench of the AIRC during the Part 10A award modernisation process”. 16
[59] It cannot be disputed that the Full Bench in making the LGI Award, considered the proposed variations and rejected them. The specific circumstances relating to these variations have not changed significantly, if at all. For this reasons alone, I am not satisfied there are good reasons to depart from the Decision of the Full Bench in the making of the LGI Award.
Is there a “technical” problem with the LGI Modern Award?
[60] The ASU submit that:
“The modern award objectives have not been met because, at the time of making the LGI award, insufficient consideration was given to the relevant employees who would be covered by the LGI award and too much weight given to the pre-reform awards covering employees who would not be covered by the LGI award”. 17
[61] Further:
“...in its simplest terms, we say that the LGI award is not operating effectively due to a technical problem arising from the part 10A award modernisation process. The technical problem has arisen because the FB did not give sufficient weight to the terms and conditions of pre-reform awards covering the relevant employees. As was discussed in our relevant facts, the issue of relevant employees is critical to establishing a fair and relevant safety net of terms and conditions for not just the LGI award but all awards”. 18
[62] In short, according to the ASU, the Full Bench in making the LGI Modern Award did not given sufficient weight to what it describes as “the critical mass of relevant employees (and employers) that would be covered by the LGI award. It has resulted in a bias towards using the terms and conditions of underpinning awards from states that, on the whole, would not and do no utilise the LGI award because they operate in the state jurisdiction”. 19
[63] For the ASU, it is a question of “weighting”. By “weighting”, the ASU means that greater weighting should have been given to the terms and conditions of employment in Western Australia and the Northern Territory. Should this be done, then it serves the dual purpose of achieving the asserted critical mass of employees principle and the modern awards objective.
[64] In contrast, the LGAs submit that “coverage” and “content” of an award for Local Government administration was debated extensively during the Part 10A award modernisation process.
[65] As early as 2 July 2009, the LGAs and ASU were engaged in a hearing in the AIRC on whether the proposed modern award should be based only on the awards in those states and territories which would be immediately covered by the modern award or whether all awards and NAPSA applying to Local Government administration. I am satisfied that the AIRC was informed and cognisant of the difference in submissions of the parties to Vice President Lawler on 2 August 2009 and 11 August 2009, and subsequently the Full Bench on 29 October 2009.
[66] It is noticeable that the Full Bench in making the LGI Modern Award commenced the segment relating to local government administration with a consideration of the legislative scheme and Constitutional considerations relating to the coverage of the proposed modern award.
[67] Further, it is noticeable that the Full Bench in making the LGI Modern Award made the following observation:
“The great variation in terms and conditions in the relevant awards and NAPSA make this assessment [hours of work and rostering] exceptionally difficult...This aspect of the modern award can be revisited at a suitable time...” 20
[68] I am satisfied that the Full Bench in making the LGI Modern Award was extensively informed and aware of the difference between the terms and conditions of employment in the various states and territories. With this information, the Full Bench in making the LGI Modern Award, adopted a national perspective and rejected a narrower focus on the terms and conditions applying in Western Australia and the Northern Territory as submitted by the ASU.
[69] While the ASU portray its submission as a “technical problem”, I am of the view that the Union is essentially seeking for the Commission, as presently constituted, to come to the conclusion that the Full Bench in making the LGI Modern Award was wrong with its national approach. Further, that I should adopt a more narrow approach based on the terms and conditions existing in Western Australia and the Northern Territory. I am not prepared to adopt such an approach. I am unable to determine that there is a “technical” problem with the LGI Modern Award.
[70] The Review Decision is clear that the review of modern awards commences with the starting position “the terms of the existing modern awards are consistent with the modern awards object”. 21 Secondly, unless there are cogent reasons for departing from Full Bench decisions in making modern awards, they should remain in place. Further, a characteristic expected of cogent reasons would include such a matter as a “significant change in circumstances”.22 Specifically, the Review Decision is not an opportunity for a “fresh assessment” of modern awards - a position supported by the then Commonwealth Government, Australian Council of Trade Unions and the Construction, Forestry, Mining and Energy Union. Thirdly, the review is intended to have a narrow focus and any “broad changes are more appropriately dealt with in the 4 year review”23.
CONCLUSION
[71] Having considered the guidance in the Review Decision, I must dismiss those parts of the ASU’s application for variation to the LGI Modern Award which has been opposed by the LGAs as detailed above.
[72] Notwithstanding my dismissal of those contested variations to the LGI Modern Award, I note the following statement of facts by the LGAs:
“The LGI award has direct application to employers and employees in every Australian state and territory where local government exists.
By virtue of subclauses 4.6 and 4.7, the LGI award directly applies to labour hire and group training organisations when they supply labour to Local Government entities. Labour hire and group training organisation supply labour to Local Government entities in every Australian state and the Northern Territory.
By virtue of subclause 4.2, the LGI award directly applies in NSW and Qld to corporations that are controlled by one or more Local Government entities. The number of corporations controlled by Local Government entities and directly covered by the LGI award is expected to increase in NSW and Qld in the future.
Local Government entities in Victoria and Tasmania are covered by the Federal industrial relations jurisdiction and currently operate under the State Reference Public Sector Transitional Awards which will expire on 31 December 2013. It is likely that local government employers (and their employees) in Tasmania will be directly covered by the LGI award from 1 January 2014. There have been discussions between local government unions and employer representatives in Victoria concerning the possibility of an application being made for a State Reference Public Sector Modern Award to apply in Victoria, however if such application is not made or is not approved, then local government employers (and their employees) in Victoria will be covered by the LGI award from 1 January 2014.”
[73] In light of these evolving circumstances, it may be appropriate that the variations to the LGI Modern Award as submitted by the ASU, be the subject of further consideration as part of the 4 year review of modern awards. The Full Bench made it clear that in terms of the legislative context, the four (4) yearly review of modern awards is distinguishable and less confined than the 2 yearly review 24.
[74] This is my decision and reasons for decision.
COMMISSIONER
Appearances:
Mr S Roffey on behalf of WALGA with Mr A Dansie on behalf of Local Government NSW.
Mr M Rizzo with Mr G Upham on behalf of the ASU.
Hearing details:
2013:
Perth
11 June.
Final written submissions:
WALGA: 18 June 2013.
ASU: 21 June 2013.
1 Transcript PN118
2 Transcript PN120
3 Transcript PN122
4 Transcript PN128
5 Transcript PN128
6 Transcript PN131
7 Transcript PN132
8 Transcript PN133
9 Transcript PN137
10 2009 AIRCFB 945 paragraph [1]
11 Review Decision paragraph [85]
12 Review Decision paragraph [88]
13 Review Decision paragraph [90]
14 Review Decision paragraph [89]
15 Exhibit ASU1 (44)
16 Exhibit LGA3
17 Exhibit ASU3
18 Exhibit ASU3
19 Exhibit ASU3
20 Review Decision paragraph [143]
21 Review Decision paragraph [85]
22 Review Decision paragraph [89]
23 Review Decision paragraph [91]
24 Review Decision paragraph [43]
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