Zoological Board of Victoria (and others) Keepers and Groundstaff (Interim) Award 2003 [Transitional]

[2014] FWCFB 5937

FAIR WORK COMMISSION

DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch. 6A, Item 6 - Modernisation of State reference public sector transitional awards

Zoological Board of Victoria (and others) Keepers and Groundstaff (Interim) Award 2003 [Transitional]
(AM2014/42)

Industries not otherwise assigned
VICE PRESIDENT WATSON DEPUTY PRESIDENT SMITH COMMISSIONER LEE	MELBOURNE, 10 SEPTEMBER 2014

State reference public sector transitional award modernisation - Zoological Board of Victoria (and others) Keepers and Groundstaff (Interim) Award 2003 [Transitional] - Whether Award a State reference public sector award - National system employer - Trading corporation - Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 - Sch. 6A Items 2 and 6, Sch. 3 Item 2A, Sch. 5 Item 3 - Fair Work Act 2009 - ss.14, 30D.

[1] This decision arises out of proceedings commenced on the Commission’s own motion under Item 6 of Schedule 6A to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the Transitional Act) with respect to the Zoological Board of Victoria (and others) Keepers and Groundstaff (Interim) Award 2003 (the Award).

[2] The relevant statutory provisions and legal test are set out in the decision handed down by the Full Bench in relation to the Greyhound Racing Victoria Employees Award 2004 which we do not repeat here. 1

[3] It is necessary to apply these authorities to both the Zoological Parks and Gardens Board and the Royal Zoological Society of South Australia, the two employer respondents to the Award.

[4] The Royal Zoological Society of South Australia is not a State reference public sector employer as South Australia has not referred its powers in relation to public sector employees.

[5] The trading activities of the Zoological Parks and Gardens Board are set out in the witness statement of Stephen Witts, filed in these proceedings. He provides the following information from the most recent Annual Report:

2012-2013 Annual Report

Income from transactions:

Income from sale of goods and rendering of services $45.14m

Government grants $16.23m

Other income $4.81m

Total income from transactions $66.18m

[6] It is clear on the basis of this evidence that the Zoological Parks and Gardens Board undertakes substantial trading activities and is a trading corporation within the test established by the relevant authorities. The Royal Zoological Society of South Australia is not a State reference public sector employer. It follows that the Award cannot be modernised under Item 6 of Schedule 6A as the employer respondents are not State reference public sector employers. Accordingly we will take no further action to modernise the Award under Item 6. Pursuant to Item 3 of Schedule 5 of the Transitional Act we intend to make an order terminating the Award. Any party wishing to make submissions on this proposed course of action beyond the submissions already made in the proceedings should do so in writing within 7 days of the date of this decision.

VICE PRESIDENT

Final written submissions:

State of Victoria on 13 May 2014.

1 [2014] FWCFB 5633.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Zoological Board of Victoria and other employers were involved in a dispute over whether the Zoological Board of Victoria Keepers and Groundstaff (Interim) Award 2003 [Transitional] should be recognised as a State reference public sector award under the Fair Work Act 2009. The dispute was heard by the Fair Work Commission, the tribunal responsible for handling such matters in Australia. The employers argued that the award should not be recognised as a State reference public sector award because they were not State employers, but rather trading corporations under the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009.

The central legal issue before the Commission was whether the Zoological Board of Victoria Keepers and Groundstaff (Interim) Award 2003 [Transitional] qualified as a State reference public sector award. The employers contended that the award did not meet the criteria for being a State reference public sector award because they were not State employers, but rather trading corporations under the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009. The Commission had to determine if the award was applicable to the employers and their employees, and if so, whether it should be recognised as a State reference public sector award.

The Fair Work Commission found that the Zoological Board of Victoria Keepers and Groundstaff (Interim) Award 2003 [Transitional] was not a State reference public sector award because the employers were trading corporations, not State employers. The Commission reasoned that the award was not applicable to the employers and their employees, and therefore, it should not be recognised as a State reference public sector award. The Commission's decision was based on the interpretation of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 and the Fair Work Act 2009. The Commission held that the award did not meet the criteria for being a State reference public sector award, and thus, it could not be applied to the employers and their employees.

The Fair Work Commission decided that the Zoological Board of Victoria Keepers and Groundstaff (Interim) Award 2003 [Transitional] was not a State reference public sector award, and it should not be recognised as such. This decision was based on the interpretation of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 and the Fair Work Act 2009. The Commission's ruling had implications for the employers and their employees, as it determined the applicability of the award to their employment conditions.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established