[2010] FWAFB 9916

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FAIR WORK AUSTRALIA

DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Schedule 5, item 3—variation and termination of certain transitional instruments

JUSTICE GIUDICE, PRESIDENT VICE PRESIDENT WATSON COMMISSIONER SMITH

MELBOURNE, 22 DECEMBER 2010

AWARD MODERNISATION – TERMINATION OF MODERNISABLE INSTRUMENTS

[1] This decision concerns award modernisation and in particular the responsibility upon this tribunal to terminate certain instruments replaced by a modern award as soon as practicable after the modern award comes into operation.

[2] At the outset it is necessary to make some general observations about the history of the statutory provisions and the instruments of industrial regulation which are dealt with in this decision. The starting point is the commencement of the Workplace Relations Amendment (Work Choices) Act 2005 (Work Choices Act) on 27 March 2006. That Act introduced a system of regulating workplace relations based on the power of the Australian Parliament to legislate in relation to foreign corporations, and trading and financial corporations formed within the limits of the Commonwealth. 1 Corporations capable of being regulated under that power are referred to as constitutional corporations. The Work Choices Act amended the Workplace Relations Act 1996 (WR Act) in a number of important ways. For present purposes one of the most important involved the creation of numerous new federal instruments based on the terms of the federal and State awards and agreements in operation at the time.2 Those instruments applied to all employers which were constitutional corporations, employers in the Australian Capital Territory and the Northern Territory and their employees in each case.

[3] The Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Transitional Act), which came into operation approximately 3 years after the Work Choices Act, provided for the modernisation of the award system. Modernisation involved the rationalisation and simplification of all of the award-based instruments, federal and State, created by the Work Choices Act and the creation of new awards, known as modern awards. The modern awards, as is well known, commenced to operate on 1 January 2010. While the modern awards mainly cover employers which are constitutional corporations and their employees, it is necessary to say something about employers which are not constitutional corporations. Victoria first referred its power to legislate in relation to employers which are not constitutional corporations and their employees to the Australian Parliament under the Commonwealth Powers (Industrial Relations) Act 1996 (Vic) in 1996. It then enacted new referral legislation broadly to the same effect in 2009 pursuant the Fair Work (Commonwealth Powers) Act 2009 (Vic). During the second half of 2009 the remaining States other than Western Australia also referred their powers in relation to employers which are not constitutional corporations to the Australian Parliament, subject to some exceptions. The Transitional Act created a number of new instruments based on the terms of the instruments created by the Work Choices Act as well as new instruments covering employers which are not constitutional corporations but which are subject to the referral of powers

[4] Modern awards have thus replaced, in a general sense, numerous instruments created by the Work Choices Act and the Transitional Act, all of which can be traced back in some way to federal and State awards applying prior to 27 March 2006. The tribunal’s present task is to terminate those instruments, subject to the statutory criteria in item 3 of Schedule 5 to the Transitional Act. The number of different types of instruments necessarily makes that task a complex one. It is necessary to have at least a basic understanding of the nature of those instruments and the differences between them and we have included a glossary of some of the terms used in this decision as Appendix A.

Statutory provisions

[5] The main legislative provision is item 3 of Schedule 5 to the Transitional Act. For ease of reference we have included the text of item 3 as Appendix B. Pursuant to item 3(2) Fair Work Australia is required to terminate all modernisable instruments as soon as practicable after all the modern awards made under Part 10A of the WR Act have come into operation. The modern awards made under Part 10A came into operation on 1 January 2010. However, Fair Work Australia must not terminate a modernisable instrument that is an enterprise instrument or a State reference public sector transitional award, or that covers employees who are also covered by an enterprise instrument or a State reference public sector transitional award.

[6] Modernisable instruments are of two kinds: award-based transitional instruments and transitional Australian Pay and Classification Scales (APCSs). Each of those classes of instrument requires some explanation.

[7] Award-based transitional instruments are dealt with mainly in Schedule 3 to the Transitional Act. They include the following instruments: awards, State reference transitional awards or common rules and notional agreements preserving State awards (NAPSAs). 3 In this context the term “awards” refers to awards based on those which existed before the commencement of the Fair Work Act 2009 (Fair Work Act) and were known under the WR Act as pre-reform awards. They originated from federal awards in existence on 27 March 2006. On that date new instruments were created which were comprised of the substantive conditions in the pre-existing federal awards but without the wages components. Accordingly these instruments do not contain wages components either.

[8] Obviously, State reference transitional awards only cover employers and employees covered by a State reference of powers. However, in order to explain the nature of State reference transitional awards it is necessary to go over some more history. On 27 March 2006 transitional awards were created under Schedule 6 to the WR Act. Those awards covered employers which were covered by a federal award immediately before that date but were not constitutional corporations, and their employees. 4 The terms of the transitional awards were drawn from the pre-existing federal awards. On 1 July 2009 these awards became State reference transitional awards so far as employers and their employees in Victoria were concerned, as a result of that State referring its powers. Those transitional awards also cover other Victorian employers who became covered by them before 31 December 2009 and their employees.5 On 1 January 2010, as a result of referrals by the remaining States except Western Australia pursuant to the terms of the Fair Work Act,6 State reference transitional awards also came into existence in those States, replacing the relevant Schedule 6 transitional awards. For completeness we note that from 1 January 2010 State reference transitional awards in Victoria have been known as Division 2A State reference transitional awards and those in the other States which have referred their powers as Division 2B State reference transitional awards. We also mention that by virtue of its coverage of public sector employees, for example in Victoria, a Schedule 6 transitional award may also have given rise to a (Division 2A) State reference public sector transitional award on 1 July 2009.7 State reference public sector transitional awards are not modernisable instruments under item 3. We deal with them in more detail later.

[9] State reference common rules also require some explanation. They only operate in Victoria. Many Victorian awards were made common rules prior to 27 March 2006. After that date Victorian common rules continued to operate pursuant to Schedule 6 to the WR Act. 8 After 1 July 2009, by operation of the Transitional Act, Victorian common rules continued in existence as State reference common rules.9 State reference common rules cover employers, and their employees, covered by a Victorian common rule prior to 1 July 2009 or who have come within the coverage terms of a State reference common rule prior to 31 December 2009.10

[10] NAPSAs are transitional instruments which cover employers and employees who entered the federal system on 27 March 2006 and who were previously covered by a State award. The terms of such instruments include the substantive terms of State awards, other than the wages components, and some State legislation applying immediately before 27 March 2006. 11

[11] Transitional APCSs are dealt with mainly in Schedule 9 to the Transitional Act. They have their origins in APCSs created by the Work Choices Act on 27 March 2006. There were two types: preserved APCSs and new APCSs. Preserved APCSs contained the basic periodic and piece rates of pay, classifications, casual loading provisions and some other provisions which had existed in federal and State awards and State minimum wage orders immediately prior to 27 March 2006. 12 On 27 March 2006 these APCSs were removed from the relevant instruments and became preserved APCSs. They operated in relation to employers which were constitutional corporations and their employees. New APCSs, as the name suggests, were instruments created after 27 March 2006 by the Australian Fair Pay Commission in the exercise of its wage-setting functions.13 On 1 July 2009 transitional APCSs were created by the Transitional Act based on the pre-existing preserved and new APCSs.

[12] Before leaving this part of our decision, which deals with the modernisable instruments included in the item 3 process, it is desirable to clarify the position in relation to continuing Schedule 6 instruments. For the purposes of this decision it is sufficient to note that while various transitional awards were created under Schedule 6 to the WR Act on 27 March 2006, most became State reference transitional awards either on 1 July 2009 (in relation to Victoria) or 1 January 2010 (in relation to States other than Victoria and Western Australia). The Schedule 6 transitional awards in relation to Western Australia continued in operation after 1 July 2009 under Schedule 20 to the Transitional Act as continuing Schedule 6 instruments. Schedule 20 provides that Schedule 6 to the WR Act continues to apply to continuing Schedule 6 instruments. Continuing Schedule 6 instruments are not modernisable and therefore not able to be terminated under item 3. They will cease to be in force on 27 March 2011.

Developments so far

[13] On 23 April 2010 the President issued a statement dealing with the process to be followed in implementing the requirements of item 3(2). 14 In accordance with normal procedures, all subscribers to the modern award database were notified of the statement by email and the statement was published on the Fair Work Australia website. The process involved the publication of a list of modernisable instruments and an invitation to any interested person or body to lodge a submission in opposition to the termination of any of the instruments by 30 June 2010. Objections were to be referred to a member of Fair Work Australia for hearing and decision. If no objection was received in relation to a particular modernisable instrument, the instrument would be terminated as soon as practicable after 30 June 2010. On 27 August 2010 the President issued a further statement.15 That statement indicated that objections and submissions had been received in relation to 119 modernisable instruments and that the objections would be referred to a Full Bench for determination. The statement went on to indicate that modernisable instruments in relation to which no submission had been received would be terminated on and from 1 October 2010 without further notice provided a member of the tribunal was satisfied that was the appropriate course under item 3(2). The Full Bench sat to hear additional submissions on 21 September 2010. We also note that Fair Work Australia has not terminated any modernisable instruments so far.

The operation of the provisions

[14] There is an initial question of construction concerning item 3 of Schedule 5. It arises from a supposed conflict between item 3(1) and item 3(2). On one interpretation item 3(1) operates prior to the completion of the award modernisation process provided for in Part 10A of the WR Act and item 3(2) applies once that process has been completed. On this view, since the process under Part 10A of the WR Act has now been completed, the tribunal is required to terminate all of the relevant modernisable instruments as soon as practicable. The competing interpretation is that the two items should be read together. The implication of this interpretation is that some modernisable instruments may be varied and continue in operation indefinitely in relation to employees who are not adequately covered by a modern award or not covered by a modern award at all.

[15] We favour the first interpretation. It is clear enough that item 3(1) permitted Fair Work Australia to terminate a modernisable instrument or vary it in relation to coverage during the award modernisation process. This would ensure that if a modern award was made covering some but not all of the employees covered by a particular instrument, no gap in coverage would arise. Item 3(2), on the other hand, provides for all of the remaining instruments to be terminated as soon as practicable once the modern award process under Part 10A of the WR Act has finished. On our view of it there is an assumption underlying the provisions that the comprehensive system of modern awards, once made, will replace the modernisable instruments entirely. In our view this is a straight-forward and practical approach to interpretation which does no violence to the language. The contrary interpretation is an invitation to ignore the plain words of item 3(2). The fact that Fair Work Australia did not act under item 3(1) during the Part 10A award modernisation process is not a relevant consideration.

[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).

[17] We mention also that there may be scope for a modern award to be varied in response to or as part of any process to implement the statutory injunction in item 3(2). The power to vary a modern award in s.157 of the Fair Work Act may be used in appropriate circumstances.

[18] The limitations on the power to terminate which are set out in item 3(3)(a) need some comment. Fair Work Australia must not terminate a modernisable instrument of any of the following types:

• an enterprise instrument,

• a State reference public sector transitional award,

• that covers employees who are also covered by an enterprise instrument,

• that covers employees who are also covered by a State reference public sector transitional award.

[19] Some comment is necessary on each type. Where a modernisable instrument is an enterprise instrument that fact is usually ascertainable. We deal later with a number of cases in which instruments may initially have been wrongly classified in that respect.

[20] State reference public sector transitional awards may not always be as easy to identify. This is because awards which operated as a common rule in Victoria prior to 1 July 2009, may have covered employers and employees in the private sector and in the public sector as well. If that was the case, on 1 July 2009 two modernisable instruments were created, one a State reference common rule and the other a State reference public sector transitional award. Termination of the former would not affect the latter.

[21] We deal now with the prohibition on terminating a modernisable instrument that covers employees who are also covered by an enterprise instrument. Enterprise instruments include enterprise award-based instruments, enterprise preserved collective State agreements and Division 2B enterprise awards. 16 In order to understand how this provision operates it is necessary to consider the meaning of the term “covers”. Item 3(1) of Schedule 3 to the Transitional Act deals with transitional instruments. It reads:

“3 The employees, employers etc. who are covered by a transitional instrument and to whom it applies

(1) A transitional instrument covers the same employees, employers and any other persons that it would have covered (however described in the instrument or WR Act) if the WR Act had continued in operation.

Note 1: The expression covers is used to indicate the range of employees, employers etc. to whom the instrument potentially applies (see subitem (2)). The employees, employers etc. who are within this range will depend on terms of the instrument, and on any relevant provisions of the WR Act.

Note 2: Depending on the terms of a transitional instrument and any relevant provisions of the WR Act, the instrument’s coverage may extend to people who become employees after the instrument becomes a transitional instrument.”

[22] Item 6 of Schedule 9 deals with transitional minimum wage instruments. Transitional minimum wage instruments include transitional APCSs. Item 6 of Schedule 9 reads:

“6 The employees who are covered by transitional minimum wage instruments

(1) Transitional minimum wage instruments cover employees as provided in the following paragraphs:

(a) a transitional APCS covers an employee if, under sections 204 and 205 of the continued AFPCS wages provisions, the APCS covers the employment of the employee;

(b) the transitional standard FMW covers an employee if, under section 194 of the continued AFPCS wages provisions, the FMW for the employee is the standard FMW;

(c) a transitional special FMW covers an employee if, under section 194 of the continued AFPCS wages provisions, the FMW for the employee is that special FMW;

(d) the transitional default casual loading covers an employee who is described in subsection 185(1) of the continued AFPCS wages provisions.

(2) However, a transitional APCS does not cover an employee (or an employer, or an employee organisation, in relation to the employee) at a time when the employee is a high income employee (see section 329 of the FW Act).

Note 1: Item 35 of Schedule 3 deals with the application of section 329 of the FW Act to transitional APCSs.

Note 2: Divisions 2 and 3 of this Part deal with when transitional minimum wage instruments cease to cover employees.”

[23] The relationship between the coverage of modern awards and award-based transitional instruments is dealt with in item 29 of Schedule 3 as follows:

“29 Modern awards and award-based transitional instruments

Modern awards other than the miscellaneous modern award

(1) If a modern award (other than the miscellaneous modern award) that covers an employee, or an employer or other person in relation to the employee, comes into operation, then an award-based transitional instrument ceases to cover (and can never again cover) the employee, or the employer or other person in relation to the employee.

Note: A modern award cannot be expressed to cover an employee who is covered by a transitional instrument that is an enterprise instrument or a State reference public sector transitional award (see subsections 143(8) and (10) of the FW Act).

The miscellaneous modern award

(2) While an award-based transitional instrument that covers an employee, or an employer or other person in relation to the employee, is in operation, the miscellaneous modern award does not cover the employee, or the employer or other person in relation to the employee.”

[24] It can be seen that once a modern award comes into operation, the employees whom it covers cease to be covered by any award-based transitional instrument which previously covered them. This general proposition is qualified in the case of enterprise instruments, however. As the note to item 29(1) indicates, a modern award cannot be expressed to cover employees covered by, relevantly, an enterprise instrument. This exclusion is made explicit in the coverage clause of all modern awards. It follows that an employee covered by two award-based transitional instruments, one an enterprise instrument and one a modernisable instrument, remains covered by both instruments after 1 January 2010, even though there may be a relevant modern award. Item 3(3)(a) operates and termination of the modernisable instrument is prohibited under the item.

[25] Whether an employee covered by an enterprise instrument is also covered by a modernisable instrument depends on the terms of the enterprise instrument. All of the enterprise instruments will require examination. We shall request the General Manager to undertake an examination of the enterprise instruments and to make relevant information publicly available.

[26] In our view this prohibition is capable of having very broad application. Enterprise instruments commonly operate in conjunction with other instruments. Given the range of enterprise instruments originating from the former State and federal workplace relations systems it will be time consuming to ascertain whether a particular modernisable instrument covers employees who are also covered by an enterprise instrument. We shall return to this issue.

[27] Consideration of the final category, modernisable instruments that cover employees who are also covered by a State reference public sector transitional award, gives rise to similar issues. Because State reference public sector transitional awards are confined to Victoria, identifying modernisable instruments that cover employees who are also covered by a State reference public sector transitional award, while still being substantial, is not likely to be as time-consuming as the identification of modernisable instruments that cover employees who are also covered by an enterprise instrument.

Other general submissions

[28] It was also suggested that the draft awards audit published by Fair Work Australia might be utilised to clarify coverage issues and remove doubts as to whether the coverage of a particular award-based transitional instrument had been taken up by a modern award. The draft awards audit is an administrative document designed to provide general guidance to employees and employers. It does not represent a binding decision as to the coverage of a modern award and could not do so. Where doubt exists it can only be resolved by an application to Fair Work Australia or a judicial decision.

[29] A number of submissions suggested a range of possible unintended consequences of the termination of an award-based transitional instrument. These submissions raise fundamental issues concerning the termination process so far adopted. We mention some of these submissions now.

[30] It was suggested that where an enterprise agreement incorporates the terms of an instrument, either at a fixed date or as varied from time to time, terminating the instrument might affect the validity of the incorporation. It was also suggested that the statutory preservation of award-derived long service leave terms might be affected by termination of award-based transitional instruments with long service leave provisions in them. Another concern expressed is that employees covered by an instrument which is terminated might be left without any award coverage if there is no appropriate classification in a modern award.

[31] The President also received a letter from the Minister for Tertiary Education, Skills, Jobs and Workplace Relations (the Minister) dated 29 September 2010. Since the letter was clearly directed at these proceedings it was treated as a submission and posted to the Fair Work Australia website. Relevant parties were notified of the posting. As well as reinforcing some of the general submissions raised by others, the letter raised a number of other issues.

[32] Relevantly, the Minister expressed concern that the termination process might result in some employees, including some juniors and employees to whom training arrangements apply, being left without minimum entitlements, including appropriate minimum wages. The Minister also suggested that the exception-based approach, whereby instruments are liable to be terminated in the absence of a notified objection, is inadequate. It was contended that close scrutiny is needed of the circumstances applying to each modernisable instrument before termination should be considered.

[33] We indicate now that we have taken all of these submissions into account in formulating our decision.

Submissions concerning specific instruments

[34] We shall now deal with a number of submissions in relation to particular awards. Before doing so, however, it may be useful to outline some approaches which we intend to apply generally. The first concerns cases in which the termination of a modernisable instrument is opposed because particular classifications in the instrument are not provided for in any modern award.

[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.

[36] We deal now with enterprise instruments. Clearly such instruments must not be terminated under item 3. There are a number of cases in which it has been submitted that an award appearing on the Fair Work Australia list of modernisable instruments is an enterprise instrument. Where it has been established that the instrument is an enterprise instrument it will not be terminated and steps will be taken to have it removed from the list.

[37] A number of submissions were made that a particular award should not be terminated because it is a State reference public sector transitional instrument. For example, a number of such submissions were made in relation to awards covering the private sector and public sector agencies in Victoria. It was submitted that the tribunal should be cautious about terminating an award-based transitional instrument unless it is clear that it does not operate as a State reference public sector transitional award. As we indicated earlier, although a State reference public sector transitional award may have the same award origin as a corresponding State reference transitional instrument, they are not one and the same instrument. Termination of one does not bring about the termination of the other. In some cases it may not be clear whether a State reference public sector transitional award came into effect on 1 July 2009. Our general approach in those cases is to make it clear that in terminating a particular transitional instrument that any corresponding State reference public sector transitional instrument is not affected.

[38] We deal now with some issues in relation to Western Australia. It is necessary to deal separately with federal awards and State awards. It was submitted on more than one occasion that a particular federal award operating in Western Australia is a transitional award under Schedule 6 to the WR Act and continues in operation under Schedule 20 to the Transitional Act as a continuing Schedule 6 instrument. Such instruments are not modernisable. As we indicated earlier, Schedule 6 transitional awards which were created on 27 March 2006 remain in operation in relation to Western Australia after 1 July 2009 as continuing Schedule 6 instruments. We make it clear any order we make terminating an instrument will not affect any corresponding continuing Schedule 6 instrument. We deal now with State awards in Western Australia. Where a NAPSA and APCS were created in relation to a Western Australian State award on 27 March 2006, the State award continued to operate after that date in relation to non-constitutional corporation employers and their employees. When the NAPSA became an award-based transitional instrument and the corresponding APCS became a transitional APCS on 1 July 2009, the State award was unaffected and still continued to operate in relation to non-constitutional corporation employers and their employees. Similarly, the termination of the award-based transitional instrument and the transitional APCS will not affect the continuing operation of the State award.

[39] We deal now with a number of submissions in relation to particular awards. Where convenient the awards have been grouped by union. There is an index of awards referred to included as Appendix C to this decision.

Australian Municipal, Administrative, Clerical and Services Union (ASU)

[40] The Social, Community, Home Care and Disability Services Industry Award 2010 17 (the SACS modern award) replaces a large number of instruments in the social and community services sector. The ASU submitted that a number of them should not be terminated. The submission was made on the basis that the transitional provisions in the modern award provide that the wages prescribed in it have no effect prior to 1 July 2011 and that the wage rates in relevant transitional minimum wage instruments and award-based transitional instruments continue to apply in the interim.

[41] The awards referred to by the ASU are capable of giving rise to a number of different instruments. The Health Workers Community and Child Health Services Award 2000 18 is an example. On 27 March 2006 the award gave rise to a pre-reform award applying to constitutional corporations and a Schedule 6 transitional award applying to non-constitutional corporation employers. The pre-reform award did not contain wages and classifications – the wages and classifications which were in the award prior to 27 March 2006 became an APCS on that date. On 1 July 2009 the pre-reform award became a transitional award-based instrument and the APCS became a transitional APCS. The Schedule 6 transitional award, however, continued in operation under Schedule 20 to the Transitional Act as a continuing Schedule 6 instrument because the respondents are all in Western Australia which has not referred its powers. To repeat, continuing Schedule 6 instruments are not modernisable instruments.

[42] The Crisis Assistance, Supported Housing Award 2002 19 provides another example. That federal award applies to respondents in the Australian Capital Territory, New South Wales, the Northern Territory, Tasmania and Victoria. In March 2006 a pre-reform award was created which applied to constitutional corporations in New South Wales, Victoria and Tasmania and all employers previously covered by the award in the Australian Capital Territory and the Northern Territory. An APCS was created for all employees covered by the pre-reform award. Non-constitutional corporation employers in New South Wales and Tasmania were covered by a Schedule 6 transitional award. Non-constitutional employers in Victoria were covered by a transitional Victorian reference award. On 1 July 2009 the pre-reform award became an award-based transitional instrument and the APCS became a transitional APCS. The Schedule 6 transitional award became a State reference transitional award because both of the relevant States have referred their powers. The transitional Victorian reference award also became a State reference transitional award.

[43] The situation in relation to former State awards is slightly simpler. The Social and Community Services (State) Award 20 was a New South Wales State award. In March 2006 NAPSAs were created in relation to substantive provisions other than wages and classifications and the wages and classifications became an APCS. The NAPSAs and the APCS applied to constitutional corporations. On 1 July 2009 the NAPSAs became award-based transitional instruments and the APCS became a transitional APCS. The State award continued to operate in relation to employers which were not national system employers until the reference of powers on 1 January 2010. At that time a Division 2B State award was created.

[44] Returning now to the ASU’s main submission concerning the transitional provisions in the SACS modern award, it is clear that the transitional provisions prescribe the continued application of the minimum wages in the transitional APCSs and State reference transitional awards until 1 July 2011. For that reason those instruments should not be terminated. We consider that we should not terminate the other award-based transitional instruments either, if only because they contain penalties and loadings which continue in operation until 1 July 2011 under the transitional provisions in the modern award. In the circumstances the position should be reviewed in relation to each of the awards identified by the ASU after 1 July 2011.

[45] The ASU also made submissions in relation to the Business Services Award, 21 a Tasmanian State award. While not opposing the termination of the award, the ASU submitted that we should make it clear that while some of the employers formerly covered by this award would be covered by the Contract Call Centres Award 2010,22 others might be covered by the Clerks - Private Sector Award 2010.23 All we are able to do is to point to the coverage clauses of the two awards and indicate the possibility that employers may be covered by either depending on which coverage provision applies.

[46] The ASU also drew our attention to a number of awards covering local government. It contended that there are a number of State reference public sector transitional awards, continuing Schedule 6 instruments and State awards which cannot be terminated.

[47] Local government is part of the national system in the Northern Territory, Victoria and Tasmania. Local government employers in the other States are not national system employers. Federal awards existed covering local government employers and employees prior to 27 March 2006. In Tasmania there were five local government industry awards. In Victoria there was one. Those awards are:

Local Governing Authorities Tasmania (Superannuation) Award 1989 24

Municipal Employees (Country Councils - Tasmania) Award 2003 25

Municipal Managers (Tasmania) Award 2003 26

Municipal Officers (Tasmania) Award 2002 27

Local Government (Community Services) Tasmania Award 2002 28

Victorian Local Authorities Award 2001 29

[48] In the case of each of these awards, in March 2006 pre-reform awards came into effect in relation to any local government employers which were constitutional corporations and otherwise within the legislative competence of the Australian Parliament. In relation to such employers APCSs would also have come into operation. Schedule 6 transitional awards commenced to operate in relation to any other Tasmanian respondents covered by the awards. If there were any employers covered by the Victorian award not within the legislative competence of the Australian Parliament, a Schedule 6 transitional award would have commenced in relation to them. In relation to Victoria, on 1 July 2009 the pre-reform award became an award-based transitional instrument, the APCSs became transitional APCSs and the Schedule 6 transitional award became a State reference public sector transitional award. The same progression occurred in relation to the Tasmanian awards, except that the Schedule 6 transitional awards became State reference public sector transitional awards on 1 January 2010 rather than 1 July 2009. We agree with the ASU that State reference public sector transitional awards cannot be terminated under item 3 of Schedule 5. The ASU’s submissions were made on the basis that local government is in the public sector and that accordingly the relevant transitional awards will be subject to the public sector modernisation process. We have dealt with the ASU’s submissions on that basis. We note, in case it should become important, that the Fair Work Act defines a public sector employer and a local government employer separately and there was no debate on the interpretation of those definitions. Any order we make terminating the awards will not extend to any State reference public sector transitional awards.

[49] It is convenient at this point to deal with a submission made by the Municipal Association of Victoria (MAV) in relation to the Early Childhood Teachers Interim Award 1999, 30 Educational Services - Early Childhood Assistants - Victoria Award 1999,31 Nurses (ANF - Victorian Local Government) Award 200232 and Victorian Local Authorities Award 2001.33 The MAV submitted that all of these federal awards have application to the local government industry in Victoria and are State reference public sector transitional awards which must not be terminated under item 3. The position in relation to these awards is the same as that applying to the awards dealt with in the previous paragraph. Any order we make terminating the awards will be limited to award-based transitional instruments and transitional APCSs.

[50] There are six awards covering local government in Western Australia which the ASU also made submissions about. Those awards are:

Local Government Officers (Western Australia) Award, 1999 34

Municipal Employees’ (Sporting Grounds - Western Australia) Award 2000 35

Municipal Employees (Western Australia) Award 1999 36

Municipal Employees City of Perth Award 2000 37

Cemetery Boards - Western Australia Award 2000 38

Pitjantjatjara Council Inc. And Associated Organisations Award 2000 39

[51] The ASU submitted that the first five of these awards, including the Cemetery Boards – Western Australia Award 2000, 40 should be classified as local government awards because the only named respondents are local government bodies. Those five awards can be dealt with together. In the case of each award, in March 2006 a pre-reform award came into effect in relation to employers which were constitutional corporations and otherwise within the legislative competence of the Australian Parliament. In relation to such employers an APCS would also have come into operation. Schedule 6 transitional awards also came into effect in relation to other employers covered by the awards prior to 27 March 2006 if such employers existed. On 1 July 2009 any pre-reform award became an award-based transitional instrument and any APCS became a transitional APCS. The Schedule 6 transitional awards became continuing Schedule 6 transitional awards because Western Australia has not referred its powers. Any orders we make terminating the instruments will not apply to continuing Schedule 6 transitional awards. Termination would only affect the corresponding award-based transitional instrument and transitional APCS.

[52] The last award referred to by the ASU in this group is the Pitjantjatjara Council Inc. and Associated Organisations Award 2000. 41 We were told the award operates in relation to communities in South Australia and Western Australia as well as in the Northern Territory. The ASU submitted that the award should not be set aside in South Australia because local government in South Australia is not covered by modern awards. Although it is not clear from the list of respondents that the award operates in Western Australia, if it does a continuing Schedule 6 instrument applies to any non-constitutional corporation employers covered by it. In the Northern Territory, while local government bodies would be covered by the Local Government Industry Award 2010,42 the ASU submitted that the award should be varied to ensure coverage remains for employees other than those employed in local government. It was suggested that such employees are not covered by any other modern award. Without further information it is not possible to draw firm conclusions about the continuing legal effect of instruments which may have been created as a result of the various legislative changes. At this stage we shall not terminate any instruments related to this award.

[53] The ASU also submitted that the Clerks (Unions and Labor Movement) Award 2004, 43 a Western Australian State award, should not be terminated. We agree that to the extent that the award continues to operate as a State award it cannot be terminated. Any termination should relate to any award-based transitional instrument and transitional APCS which came into operation on 1 July 2009 based on a NAPSA or an APCS which came into existence on 27 March 2006.

[54] The ASU also dealt with two travel industry awards – the Travel Industry-Agencies-General Award-1999 44 and the Travel-Industry-Traveland/CMAT-Award 1999.45 It submitted that neither award should be terminated. The ASU pointed out that the AIRC had indicated that employees in the travel industry might be covered by the Clerks—Private Sector Award 2010 or the General Retail Industry Award 201046 but had not included specific classifications for the travel industry in either modern award.47 It appears, based on the ASU’s submissions, that the second of these awards applies only to Traveland franchisees and is an enterprise award-based instrument which should not be terminated. The broader issue raised by the ASU is that the tribunal should clarify the modern award coverage of the travel industry by inserting appropriate classifications into the Clerks—Private Sector Award 2010 and that this should be done before any instrument is terminated. In line with our general approach, we do not regard lack of modern award classification coverage as a reason not to terminate an instrument. If the ASU wishes to pursue the matter it should make an appropriate variation application.

[55] The ASU made similar submissions in relation to the Victorian Legal Professional, Clerical and Administrative Employees Award 2004 48 (Victorian legal award), a federal award, and the Salaried Lawyers Award,49 a South Australian State award. The AIRC decided not to include classifications for qualified lawyers in the Legal Services Award 2010.50 It follows that the modern award system does not presently provide for them. Consistent with our general approach, we consider that the ASU’s submissions do not provide a proper basis for not terminating the two instruments in question. Workforce Victoria raised a separate issue concerning the Victorian legal award. It submitted that a State reference public sector transitional award may have come into existence in relation to public sector employers and employees. Any order we make terminating the award will not apply to such an instrument.

[56] The ASU also made submissions about the Clerks’ (Control Room Operators) Award 1984. 51 It contended that we should make it clear that the control room operators covered by the award are now covered by the Clerks—Private Sector Award 2010. While this submission appears to be correct, we have not heard submissions from any employer potentially affected and we could not decide the issue at this stage.

Queensland Public Sector Union of Employees (QPSU)

[57] The QPSU made submissions in relation to three Queensland State awards. It submitted that the Agricultural Colleges of Queensland (Excluding Domestic and General Staff) Award - State 2004 52 is an award in the Queensland jurisdiction and should not have appeared in the list of modernisable instruments. It seems from the material advanced by the QPSU that the award does not apply to any national system employers and that the submission is correct. The award should be deleted from the list of modernisable instruments. The QPSU also submitted that the District Health Services Employees’ Award - State 200353 and the District Health Services - Senior Medical Officers and Resident Medical Offices’ Award – State 200354 each gave rise to an enterprise NAPSA covering the Mater Misericordiae Hospital on 27 March 2006 but that in relation to the other district health services the awards remained State awards. We accept this submission. The only awards operating in the national system are enterprise instruments and they are therefore not modernisable under item 3. These awards should also be removed from the list.

CPSU, the Community and Public Sector Union (CPSU)

[58] The CPSU made submissions in relation to five instruments. The outcomes it sought were supported by Workforce Victoria where Victorian awards are concerned. The first is the Arts and Entertainment Administration Award 2001 55 in so far as that award is a State reference public sector transitional award. On the submissions advanced it appears the award applies to public sector bodies in Victoria. Accordingly the award has given rise to two separate instruments. The first is an award-based transitional instrument covering constitutional corporations, the second is a State reference public sector transitional award. It was submitted that a split of this kind is provided for in item 2(4) of Schedule 6A to the Transitional Act.

[59] In our view item 2(4) of Schedule 6A does not apply in the present situation. Accepting that the award applies to public sector bodies, in March 2006 a Schedule 6 transitional award came into existence covering those bodies. On 1 July 2009 that award became a State reference public sector transitional award which could not be terminated under item 3 of Schedule 5. Any order we make terminating the award-based transitional instrument will not apply to the State reference public sector transitional award.

[60] The second award is the Medical Scientists (South Australian Public Sector) Award. 56 On the material advanced it appears that the only operation of the award is as a continuing State award within the meaning of item 3(3)(a). Also on that material it appears that no NAPSA was created from it in March 2006.

[61] The next award addressed by the CPSU is the School Services Officers (State Government Schools), Victoria, Award 2000. 57 The award covers the employment of school services officers by the State of Victoria and by school councils. It is clear that the State of Victoria is a State reference public sector employer and covered by a State reference public sector transitional award. The position in relation to school councils may be open to some doubt. It is perhaps for that reason that a pre-reform award of that name appeared in the list published by Fair Work Australia. It may be appropriate to terminate the award as it may have application as an award-based transitional instrument. Any termination will only apply to any award-based transitional instrument and any associated transitional APCS.

[62] The CPSU dealt next with the Totalizator Agency Award, 58 a Tasmanian State award. It submitted that award applies only to one employer and is therefore an enterprise instrument within the meaning of item 3(3)(b). This submission was accepted by TOTE Tasmania Pty Ltd. We agree. The award will not be terminated.

[63] The CPSU also referred to the Victorian State Agencies Award 2003. 59 The submissions in relation to this federal award were very similar to those made in relation to the Arts and Entertainment Administration Award 2001.60 It was submitted that so far as the award covers State reference public sector employers it is a State reference public sector transitional award and not subject to termination. Consistent with our conclusions in relation to the Arts and Entertainment Administration Award 2001, we make it clear that any termination of the award will only apply to the modernisable instrument and not to the corresponding State reference public sector transitional award.

[64] The CPSU (PSU Group) submitted that the Community and Public Sector Union (Central and Northern Land Councils) Award 2001 61 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.

Brisbane Marine Pilots Pty Ltd and Queensland Marine Holdings Pty Ltd

[65] These two companies submitted that they are related companies, they are the only two respondents to the Brisbane Pilot Service Launch Vessels Award 1999, 62 an award applying in Queensland, and the award is accordingly an enterprise instrument for the purposes of item 3(3)(b). On the material advanced it is clear the two employers constitute a single enterprise under item 3(3) of Schedule 6 to the Transitional Act and the award is therefore an enterprise instrument. It will not be terminated.

Business SA

[66] Business SA submitted that it is important that any gaps in award coverage between modernisable instruments and modern awards are addressed. It drew our attention to five awards in that context. The first is the Clerical and Salaried Staffs’ (Agribusiness) Award 1999. 63 Business SA referred to the AIRC’s decision not to replace this award with a modern award but to provide for it through the Banking, Finance and Insurance Award 2010.64 It submitted that it is not clear that a livestock auctioneer/salesman is covered by the latter award.

[67] The next award is The Drilling and Exploration Industry (AWU) Award 1998. 65 Business SA pointed out that while most of the employers and employees formerly covered by this award are now covered by the Mining Industry Award 2010,66 employers whose principal business is drilling for water are not.

[68] The terms of the Caretakers and Cleaners Award, 67 a South Australian State award, were referred to next. Business SA contended that the corresponding modern award - the Cleaning Services Award 201068 – does not cover caretakers and cleaners employed in industries other than the cleaning industry or in-house caretakers and cleaners. It was submitted this has left gaps in modern award coverage for these occupations.

[69] Business SA also drew attention to the Delicatessens, Canteens, Unlicensed Cafes and Restaurants Etc. Award, 69 another South Australian State award. In this case it was submitted that neither the Restaurant Industry Award 2010,70 the Hospitality Industry (General) Award 2010,71 or any other modern award provided coverage of in-house canteen staff.

[70] Finally reference was made to the Retail Industry (South Australia) Award, 72 another South Australian State award. It was suggested that there is no coverage in modern awards for retail sales staff at manufacturing or processing establishments.

[71] In our view gaps in modern award coverage such as those alleged by Business SA should be addressed by an application to vary the appropriate modern award. Whether the gaps in fact exist, and whether if they do it is appropriate that they do, are matters for further consideration in the context of any application to vary modern awards. We would not decline to terminate the award based transitional instruments and transitional APCSs derived from these awards on the basis of these submissions.

Workforce Victoria

[72] As indicated earlier, Workforce Victoria supported the CPSU submissions in relation to a number of awards applying in the public sector in Victoria. It also drew our attention to some other awards which might operate as State reference public sector transitional awards. It specified the following awards:

Victorian Firefighting Industry Employees Interim Award 2000 73

Victorian Alpine Resorts Award 1999 74

Energy (Gas) Industry Award 1999 75

[73] For reasons we gave in relation to the awards referred to by the CPSU, we have decided that any order we make terminating the award-based transitional instruments and transitional APCSs derived from these awards will be expressed so as to make it clear the termination does not affect any State reference public sector transitional award.

[74] Workforce Victoria also submitted that there may be entities responsible for the management of snowfields in Victoria which are covered by the Victorian Alpine Resorts Award 1999, 76 but do not come within the coverage of the Alpine Resorts Award 2010.77 Issues of award coverage of that kind can be dealt with in the context of a suitable application.

[75] Finally, Workforce Victoria referred to a number of awards operating as a common rule in Victoria and submitted that they would cover some public sector employees. Any order we might make terminating the common rules should make it clear that the order does not affect any State reference public sector transitional award.

Finance Sector Union (FSU)

[76] The FSU submitted that four specified awards should not be terminated because they have not been completely replaced by a modern award. In each case the question seems to be one of classifications. The awards are:

Clerical and Salaried Staffs’ (Agribusiness) Award 1999 78

Credit Union Award 1998 79

Insurance Industry Award 1998 80

Western Australian Credit Unions Award 2001 81

[77] The FSU submissions do not provide a proper basis for not terminating the awards concerned. They are clearly modernisable instruments. Any application to vary the classifications in a relevant modern award would be considered on its merits.

[78] FSU also submitted that the Insurance Employees (Clerical Indoor Staff, RACQ and RACQ-GIO) Award 1999 82 is an enterprise instrument and not liable to be terminated under item 3. On the information provided that submission is correct. The award will be removed from the list.

Pharmacy Guild of Australia (PGA)

[79] The PGA submitted that the Community Pharmacy Award 1998 83 and the S.D.A Western Australian Community Pharmacy - Pharmacy Assistants Award 2000,84 both federal awards, are continuing Schedule 6 instruments and should not be terminated. We agree.

Australian Salaried Medical Officers’ Federation (ASMOF)

[80] ASMOF identified four awards which it submitted should not be terminated. The awards are the District Health Services - Senior Medical Officers and Resident Medical Offices’ Award – State 2003, 85 a Queensland State award, the Metropolitan Teaching Hospitals – Salaries and Conditions of Service Award 1986 (Medical Officers),86 a Western Australian State award, the South Australian Medical Officers Award,87a South Australian State award, and the Western Australian State Public Hospitals, Medical Practitioners’ Award 1987,88 another Western Australian State award. In relation to the first award, on the material submitted, the award gave rise to a pre-reform enterprise award in relation to the Mater Misericordiae Health Services on 27 March 2006. As indicated in paragraph 57, that award became an enterprise instrument on 1 July 2009 and must not be terminated under item 3. The continuing State award is unaffected by the referral of powers in Queensland because it applies to Government employees. No termination orders should be made. The other three awards, as we understand it, apply to Government employees only. In Western Australia there has been no referral of powers and in South Australia the referral does not extend to Government employment. Accordingly these are not modernisable instruments and cannot be terminated under item 3(2).

Life Education Australia

[81] Representations were made on behalf of Life Education Australia in relation to the Northern Territory Life Education Award 2003, 89 and the Educators (Life Education) Award 2001.90 It was submitted, with the support of the Independent Education Union of Australia, that both awards are enterprise instruments. We accept that submission. The awards must not be terminated under item 3.

Dyno Nobel Asia Pacific Pty Ltd (Dyno Nobel)

[82] It was submitted on behalf of Dyno Nobel that the The Federal Explosives Manufacturing and Distribution (AWU) Award 2000 91 is an enterprise instrument and must not be terminated under item 3. We accept that submission.

Group Training Australia Limited (GTA)

[83] GTA identified a number of modern awards which it submitted do not adequately provide for apprentices. They are the Aged Care Award 2010, 92 the Health Professionals and Support Services Award 2010,93 the Racing Clubs Events Award 2010,94 and the Horticulture Award 2010.95 These submissions are all capable of being dealt with by an application to vary the relevant award.

[84] GTA also submitted that three awards, the Hair and Beauty Industry Award 2010, 96 General Retail Industry Award 2010 and Nursery Award 2010,97 do not contain provision for school-based apprentices and should do so. These matters also can be addressed through an appropriate application.

[85] GTA also identified a number of awards which do not contain the national training wage schedule and should do so. The AIRC took the view that the national training wage schedule was generally appropriate for inclusion in any award covering an area in which trainees might be employed. That view still seems appropriate, although the possibility of exceptional circumstances cannot be ruled out. Those matters can also be dealt with by application.

[86] Some particular issues arose in relation to the operation of competency-based provisions and provisions relating exclusively to the provision of tools for apprentices and trainees in Queensland. The Fair Work (Transitional Provisions and Consequential Amendments) Regulations 2009 amended Schedule 5 to the Transitional Act by adding item 16. That item provides that such provisions in an award-based transitional instrument or transitional APCS continue to operate after 1 January 2010. We will provide that any order terminating a relevant award-based transitional instrument or transitional APCS operates subject to item 16.

[87] Finally GTA submitted that many staff of group training organisations covered by existing awards are not within the classifications in any modern award. If this be the case this matter also can be addressed through an appropriate application.

Australian Nursing Federation (ANF)

[88] The ANF submitted that the Nurses (Queensland Public Hospitals) Award 2004, 98 is an award-based transitional instrument which now only applies to the Mater Misericordiae Health Services Brisbane Ltd and is an enterprise instrument which must not be terminated under item 3. We accept the submission.

[89] It was submitted that the Nurses (Victorian Health Services) Award 2000, 99 applies to State public sector employers as defined in s.30K of the Fair Work Act and is therefore a State reference public sector transitional award which must not be terminated under item 3. We accept that this submission is likely to be correct for employers in the public sector. For other employers, however, the award operates as an award-based transitional instrument and transitional APCS in the private sector. Any order terminating those instruments will not apply to the corresponding State reference public sector transitional award.

[90] Submissions were also made concerning two South Australian State awards – the Nurses (South Australia) Award 100 and the Health Services Employees Award.101 It is sufficient to indicate that any order made terminating those awards will only apply to the relevant award-based transitional instrument and transitional APCS. Any existing operation of the State awards under State laws will be unaffected.

Association of Professional Engineers, Scientists and Managers, Australia (APESMA)

[91] APESMA submitted that the Professional Employees Award 2010, 102 only partly replaces the Information Technology Industry (Professional Employees) Award 2001,103 which operated as a common rule in Victoria and the Australian Capital Territory. It submitted that the latter award should not be terminated or, alternatively should be varied so as only to cover employees not covered by the Professional Employees Award 2010. That award only applies to information technology professionals who are principally engaged in the information technology industry. APESMA set out the history of its attempts to persuade the AIRC to vary the coverage clause in the Professional Employees Award 2010 to include all information technology employees. The AIRC rejected these attempts and in addition it decided not to include a transitional provision preserving award conditions for employees formerly covered by the common rule in Victoria and the Australian Capital Territory. In its decision of 3 December 2009 the Full Bench suggested that this question might be addressed when Fair Work Australia was considering the termination of the award.104 For reasons we have given earlier we do not regard the fact that some employees will not be covered by a modern award as a reason not to terminate a particular instrument. In this case some additional comment is necessary. It is clear beyond argument that the scope of the relevant modern award is confined to information technology professionals principally engaged in the information technology industry. While some information technology employees in Victoria and the Australian Capital Territory may cease being covered, we infer that a number of employees in the information technology industry came into award coverage for the first time on 1 January 2010 because the Information Technology Industry (Professional Employees) Award 2001105 was respondency based and not a common rule in States other than Victoria. For completeness we note our earlier conclusion that pursuant to item 3 we are not able to vary the terms of a modernisable instrument.

Nationwide News Pty Ltd and others

[92] A number of media corporations submitted that awards with which they are concerned are enterprise instruments and must not be terminated under item 3. The awards are:

Journalists (News Limited – Metropolitan Daily Newspapers) Award 2002 106

Metropolitan Newspapers (South Australia and Tasmania) Clerical and Associated Officers Award 2003 107

Metropolitan Newspapers (South Australian and Tasmania) Printing Award 2003 108

[93] Although these awards have multiple respondents we were informed that the respondents are related corporations. We accept these submissions.

Australian Licensed Aircraft Engineers Association (ALAEA).

[94] The ALAEA made submissions concerning the superannuation provisions in the Aircraft Engineers (General Aviation) Superannuation Award 1988. 109 It pointed out that the frequency of employer contributions in that award is not the same as the frequency in the relevant modern award, the Airline Operations – Ground Staff Award 2010110 and asked us to vary the modern award. We consider that the appropriate course is for the ALAEA to make application in the normal way.

New South Wales Minerals Council Ltd (NSWMC)

[95] The NSWMC identified a number of modernisable instruments which should be terminated in relation to the operation of the Black Coal Mining Industry Award 2010. 111 Of those, two appear to be enterprise award-based transitional instruments. They are the Coal Services Pty Limited Award 1999112 and the Ulan Coal Delivery Consent Award 2004.113 We shall not terminate those awards without further information as to their operation.

Conclusions

[96] This decision has traversed a large number of statutory provisions and transitional instruments. It also deals with a number of questions of interpretation and application. In our view many of these questions either have not been dealt with adequately or have passed without comment in the submissions. It is important that we therefore allow a further period of time for interested persons and bodies to consider the many matters covered in the decision and to make such submissions as they are advised.

[97] Any interested person or organisation may file a submission in relation to any modernisable instrument, whether specifically dealt with in this decision or not. All submissions are to be filed by 4 March 2011. We shall decide after 31 March whether it is necessary to sit again to hear further oral submissions or whether to determine the matter on the material before us.

[98] In light of the views expressed in this decision concerning the interpretation and application of the relevant provisions we are optimistic that many of the issues raised to date will have been resolved and that the number of submissions will be limited.

[99] In relation to modernisable instruments which are not the subject of any submission, either this Full Bench or another member of the tribunal will consider whether to terminate each instrument. In considering that question it will be necessary to have regard to the terms of item 3(3) and any relevant material concerning employees covered by enterprise instruments and State reference public sector transitional awards. In particular it will be necessary to consider whether the modernisable instrument covers employees who are also covered by an enterprise award-based instrument, an enterprise preserved collective State agreement, a Division 2B State enterprise award or a State reference public sector transitional award.

PRESIDENT

Appearances:

E White of counsel for the United Firefighters’ Union of Australia.

B Avallone for News Corporation group of companies.

M Mead for the Australian Industry Group.

J Fetter with E McCoy for the Australian Council of Trade Unions.

S Maxwell for the Construction, Forestry, Mining and Energy Union (Construction and General Division).

C Estoesta for the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, known as the Australian Manufacturing Workers' Union.

R Medforth for Group Training Australia.

J Nucifora for the Australian Municipal, Administrative, Clerical and Services Union.

V Wiles for the Textile, Clothing and Footwear Union of Australia.

T McConville with S De Silva for Workforce Victoria.

A McCarthy for the Australian Nursing Federation.

A Leszczynski for the Finance Sector Union of Australia.

M De Vecchis for the Australian Salaried Medical Officers Federation.

T Wright for the CPSU, Community and Public Sector Union – SPSF Group.

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

L Smith with A McKenna for the Pharmacy Guild of Australia.

K Anderson for the Queensland Council of Unions.

D Ralston for the Queensland Public Sector Union.

M Moy for Dyno Nobel Asia Pacific Pty Ltd.

Hearing details:

2010
Melbourne.
Brisbane (by video link)
Perth (by video link)
Sydney (by video link)
September, 21.

Appendix A to the Full Bench decision of 22 December 2010

Glossary to this decision

AIRC means the Australian Industrial Relations Commission

award (i) in the context of item 3 of Schedule 5 to the Transitional Act, means a pre-reform award which operated from 27 March 2006 until immediately prior to 1 July 2009; from 1 July an award operates as an award-based transitional instrument;

(ii) in other contexts is a generic name for an industrial instrument.

(See s.4 of the WR Act, item 4 of Schedule 2 and item 3 of Schedule 5 to the Transitional Act)

award-based transitional instrument means an instrument which came into operation on 1 July 2009 based on the terms of an instrument which came into operation under the WR Act on 27 March 2009; an award, a state reference transitional award or common rule and a NAPSA are all award-based transitional instruments.

(See item 2(5) of Schedule 3 to the Transitional Act)

Australian Pay and Classification Scale (APCS) means the classification scale and corresponding minimum wage rates which came into existence on 27 March 2006 to replace the classification scale and minimum wage rates which would otherwise have been included in a pre-reform award or a NAPSA; it could also include casual loading provisions and frequency of payment provisions. State minimum wage orders and Victorian minimum wage orders also became APCSs.

(See ss.178 - 222 of the WR Act)

common rule – Victoria means a common rule made by the AIRC under powers enabled by the referral of powers to the Parliament of the Commonwealth by Victoria in the Commonwealth Powers (Industrial Relations) Act 1996 and which was continued in operation after 27 March 2006 by Schedule 6 to the WR Act.

(See Part 7 Schedule 6 (particularly subdivision E) to the WR Act and Explanatory Memorandum from p.476 to the Workplace Relations Amendment (WorkChoices) Bill (2005))

continuing schedule 6 instrument means a Schedule 6 transitional award to the extent that it applies to employers which are not national system employers on 1 January 2010; a continuing Schedule 6 instrument will cease to be in force on 27 March 2011, but may be revoked by Fair Work Australia earlier.

(See item 6 of Schedule 6 to the WR Act, Schedule 20 and item 3 of Schedule 5 to the Transitional Act)

Division 2A State reference transitional award means an instrument which came into operation on 1 July 2009 incorporating the terms of a Schedule 6 transitional award operating immediately prior to that date; the instrument covers employees and employers covered by a State reference of powers in Victoria

(See item 2A of Schedule 3 and item 3 of Schedule 5 to the Transitional Act, ss.30A and 30K of the Fair Work Act)

Division 2B enterprise award means a division 2B State award that covers a single enterprise only or one or more businesses that carry out similar business activities under the same franchise provided they are franchisees of the same franchisor or related bodies corporate of the same franchisor.

(See item (2)(4) of Schedule 6 to the Transitional Act)

Division 2B State award means an award, based on the terms of a relevant State award, which came into operation under the Transitional Act on 1 January 2010 to cover employees and employers previously covered by the State award who became national system employees and employers on that date; a Division 2B State award terminates on 31 December 2010.

(See item 3 of Schedule 3A and item 29 of Schedule 3A to the Transitional Act and Decision [2010] FWAFB 8558)

Division 2B State reference transitional award means an instrument which came into operation on 1 January 2010 incorporating the terms of Schedule 6 transitional award operating immediately prior to that date; the instrument covers employees and employers subject to a State reference of powers in New South Wales, Queensland, South Australia or Tasmania.

(See item 2A of Schedule 3 to the Transitional Act and ss.30A and 30K of the Fair Work Act)

enterprise award means an award which regulated the terms and conditions of a single enterprise only or one or more businesses that carry out similar business activities under the same franchise provided they are franchisees of the same franchisor or related bodies corporate of the same franchisor immediately prior to 1 July 2009.

(See 2(e) and 2B of the consolidated award modernisation request, items 2(2A), 4 & 5 of Schedule 6 to the Transitional Act)

enterprise award-based instrument means an award-based transitional instrument, other than a State reference public sector transitional award, that covers employees in a single enterprise only or one or more businesses that carry out similar business activities under the same franchise provided they are franchisees of the same franchisor or related bodies corporate of the same franchisor.

(See Part 2 of Schedule 6 to the Transitional Act)

enterprise NAPSA means a NAPSA that regulates the terms and conditions of employment in a single enterprise only or in one or more businesses that carry out similar business activities under the same franchise provided they are franchisees of the same franchisor or related bodies corporate of the same franchisor.

(See 2(e) and 2B of consolidated award modernisation request, items 2(2B), 4 & 5 of Schedule 6 to the Transitional Act)

enterprise preserved collective State agreement means an instrument which came into operation on 27 March 2006 based on the terms of a State employment agreement created prior to 27 March 2006 by the operation of State or Territory legislation on a State award.

(See items 2(3) of Schedule 6 to the Transitional Act, Schedule 8 to the WR Act and for an example see NSW consent awards made under s.44C of Schedule 4 to the Industrial Relations Act 1996)

modern award means an award made under Part 10A of the WR Act by the AIRC or Part 2 - 3 of the Fair Work Act by Fair Work Australia.

modern enterprise award means an award made by Fair Work Australia under Schedule 6 to the Transitional Act.

(See Schedule 6 to the Transitional Act and s.143A of the Fair Work Act)

modernisable instrument means an award-based transitional instrument or a transitional APCS.

(See item 3 of Schedule 5 to the Transitional Act)

notional agreement preserving a State award (NAPSA) means a federal instrument, incorporating the terms of a relevant State award, other than terms dealing with matters included in an APCS, which came into operation on 27 March 2006 to cover employees and employers who were employees and employers in the federal system immediately before that date.

(See item 31 of schedule 8 and s.208 of the WR Act, item 20 of Schedule 3 to the Transitional Act).

pre-reform award means an award, incorporating the terms of a relevant federal award, other than terms dealing with matters included in an APCS, which came into operation on 27 March 2006 to cover employers who were employers in the federal system immediately before that date and which were not excluded employers after that date.

(See s.6 and s.4 and s.208 of the WR Act, item 4 of Schedule 4 to the Work Choices Act).

Schedule 6 transitional award means an award which commenced to operate on 27 March 2006 to cover employers who were employers in the federal system immediately before that date and which were excluded employers after that date

(See s.6 and s.4 and item 6 of Schedule 6 to the WR Act).

State reference common rule means an instrument which came into operation on 1 July 2009 incorporating the terms of a common rule – Victoria operating immediately before that date.

(See item 2A of Schedule 3 and item 3 of Schedule 5 to the Transitional Act, ss.30A and 30K of the Fair Work Act)

State reference public sector modern award means an award made by Fair Work Australia on application by an employer or organisation covered by a State reference public sector transitional award.

(See Schedule 6A to the Transitional Act, s.143B of the Fair Work Act)

State reference public sector transitional award means a State reference transitional award or State reference common rule applying in the public sector of a referring State.

(See Schedule 6A to the Transitional Act)

State reference transitional award means either a Division 2A state reference transitional award or a Division 2B state reference transitional award.

State reference transitional enterprise award means a State reference transitional award which regulates terms and conditions of a single enterprise only or one or more businesses that carry out similar business activities under the same franchise provided they are franchisees of the same franchisor or related bodies corporate of the same franchisor.

(See items 2(2A), 4 & 5 of Schedule 6 to the Transitional Act)

transitional APCS means an instrument which came into operation on 1 July 2009 in place of an APCS operating immediately before that date.

(See items 5, 7 & 11 of Schedule 9 to the Transitional Act)

Appendix B to the Full Bench decision of 22 December 2010

Schedule 5—Modern awards (other than modern enterprise awards and State reference public sector modern awards)

... ...

3 Variation and termination of certain transitional instruments etc. to take account of Part 10A award modernisation process

(1) FWA must, as soon as practicable after a modern award (other than the miscellaneous modern award) made in the Part 10A award modernisation process comes into operation (and subject to subitem (3)):

(a) terminate any of the following (modernisable instruments) that FWA considers are completely replaced by the modern award:

(i) award-based transitional instruments;

(ii) transitional APCSs; and

(b) if FWA considers that the modern award only partly replaces a modernisable instrument—vary the coverage terms of the modernisable instrument accordingly.

Note 1: The main provisions about transitional instruments are in Schedule 3, and the main provisions about transitional APCSs are in Schedule 9.

Note 2: This item does not limit the effect of any other provision of this Act under which a modernisable instrument ceases to cover a person from a time earlier than when the instrument is terminated or varied under this item.

(2) As soon as practicable after all modern awards made in the Part 10A modernisation process have come into operation, FWA must (subject to subitem (3)) terminate any remaining modernisable instruments.

(3) However, FWA must not, under this item:

(a) terminate a modernisable instrument that is an enterprise instrument or a State reference public sector transitional award, or that covers employees who are also covered by an enterprise instrument or a State reference public sector transitional award; or

(b) vary a modernisable instrument that is an enterprise instrument or a State reference public sector transitional award; or

(c) vary a modernisable instrument so that it ceases to cover employees who are also covered by an enterprise instrument or a State reference public sector transitional award.

Note 1: Item 9 of Schedule 6 deals with termination and variation of modernisable instruments to take account of the enterprise instrument or a State reference public sector transitional award modification process.

Note 2: Item 10 of Schedule 6A deals with termination and variation of State reference public sector transitional awards to take account of the State reference public sector transitional award modernisation process.

(4) FWA may establish a process for making decisions under this item to terminate or vary one or more modernisable instruments.

(5) FWA may advise persons or bodies about that process in any way FWA considers appropriate.

(6) Section 625 of the FW Act (which deals with delegation by the President of functions and powers of FWA) has effect as if subsection (2) of that section included a reference to FWA’s powers under subitem (5).

Appendix C to the Full Bench decision of 22 December 2010

Index of awards referenced in this decision

Aged Care Award 2010, para 83

Agricultural Colleges of Queensland (Excluding Domestic and General Staff) Award – State 2004, para 57

Aircraft Engineers (General Aviation) Superannuation Award 1988, para 94

Airline Operations - Ground Staff Award 2010, para 94

Alpine Resorts Award 2010 , para 74

Arts and Entertainment Administration Award 2001, paras 58 and 63

Banking, Finance and Insurance Award 2010 , para 66

Black Coal Mining Industry Award 2010, para 95

Brisbane Pilot Service Launch Vessels Award 1999, para 65

Business Services Award, para 45

Caretakers and Cleaners Award, para 68

Cemetery Boards – Western Australia Award 2000, paras 50 and 51

Cleaning Services Award 2010, para 68

Clerical and Salaried Staffs’ (Agribusiness) Award 1999, paras 66 and 76

Clerks—Private Sector Award 2010, paras 45, 54 and 56

Clerks (Unions and Labor Movement) Award 2004, para 53

Clerks’ (Control Room Operators) Award 1984, para 56

Coal Services Pty Limited Award 1999, para 95

Community and Public Sector Union (Central and Northern Land Councils) Award 2001, para 64

Community Pharmacy Award 1998, para 79

Contract Call Centres Award 2010, para 45

Credit Union Award 1998, para 76

Crisis Assistance, Supported Housing Award 2002, para 42

Delicatessens, Canteens, Unlicensed Cafes and Restaurants Etc. Award, para 69

District Health Services - Senior Medical Officers and Resident Medical Offices’ Award – State 2003, paras 57 and 80

District Health Services Employees’ Award – State 2003, para 57

Drilling and Exploration Industry (AWU) Award 1998, para 67

Early Childhood Teachers Interim Award 1999, para 49

Educational Services – Early Childhood Assistants - Victoria Award 1999, para 49

Educators (Life Education) Award 2001, para 81

Energy (Gas) Industry Award 1999, para 72

Federal Explosives Manufacturing and Distribution (AWU) Award 2000, The, para 82

General Retail Industry Award 2010, paras 54 and 84

Hair and Beauty Industry Award 2010, para 84

Health Professionals and Support Services Award 2010, para 83

Health Services Employees Award, para 90

Health Workers Community and Child Health Services Award 2000, para 41

Horticulture Award 2010, para 83

Hospitality Industry (General) Award 2010, para 69

Information Technology Industry (Professional Employees) Award 2001, para 91

Insurance Employees (Clerical Indoor Staff, RACQ and RACQ-GIO) Award 1999, para 78

Insurance Industry Award 1998, para 76

Journalists (News Limited – Metropolitan Daily Newspapers) Award 2002, para 92

Legal Services Award 2010, para 55

Local Governing Authorities Tasmania (Superannuation) Award 1989, para 47

Local Government (Community Services) Tasmania Award 2002, para 47

Local Government Industry Award 2010, para 52

Local Government Officers (Western Australia) Award, 1999, para 50

Medical Scientists (South Australian Public Sector) Award, para 60

Metropolitan Newspapers (South Australia and Tasmania) Clerical and Associated Officers Award 2003, para 92

Metropolitan Newspapers (South Australian and Tasmania) Printing Award 2003, para 92

Metropolitan Teaching Hospitals – Salaries and Conditions of Service Award 1986 (Medical Officers), para 80

Mining Industry Award 2010, para 67

Municipal Employees (Country Councils – Tasmania) Award 2003, para 47

Municipal Employees (Western Australia) Award 1999, para 50

Municipal Employees City of Perth Award 2000, para 50

Municipal Employees’ (Sporting Grounds – Western Australia) Award 2000, para 50

Municipal Managers (Tasmania) Award 2003, para 47

Municipal Officers (Tasmania) Award 2002, para 47

Northern Territory Life Education Award 2003, para 81

Nursery Award 2010, para 84

Nurses (ANF – Victorian Local Government) Award 2002, para 49

Nurses (Queensland Public Hospitals) Award 2004, para 88

Nurses (South Australia) Award, para 90

Nurses (Victorian Health Services) Award 2000, para 89

Pitjantjatjara Council Inc. and Associated Organisations Award 2000, paras 50 and 52

Professional Employees Award 2010, para 91

Racing Clubs Events Award 2010, para 83

Restaurant Industry Award 2010, para 69

Retail Industry (South Australia) Award, para 70

S.D.A Western Australian Community Pharmacy – Pharmacy Assistants Award 2000, para 79

Salaried Lawyers Award, para 55

School Services Officers (State Government Schools), Victoria, Award 2000, para 61

Social and Community Services (State) Award, para 43

Social, Community, Home Care and Disability Services Industry Award 2010, paras 40 and 44

South Australian Medical Officers Award, para 80

Totalizator Agency Award, para 62

Travel Industry – Agencies – General Award - 1999, para 54

Travel Industry – Traveland/CMAT – Award 1999, para 54

Ulan Coal Delivery Consent Award 2004, para 95

Victorian Alpine Resorts Award 1999, paras 72 and 74

Victorian Firefighting Industry Employees Interim Award 2000, para 72

Victorian Legal Professional, Clerical and Administrative Employees Award 2004, para 55

Victorian Local Authorities Award 2001, para 47 and 49

Victorian State Agencies Award 2003, para 63

Western Australian Credit Unions Award 2001, para 76

Western Australian State Public Hospitals, Medical Practitioners’ Award 1987, para 80

 1   The Australian Constitution s.51(xx).

 2   27 March 2006.

 3   Section 2(5)(a) of Schedule 3 to the Transitional Act.

 4   See Part 7 of Schedule 6 to the WR Act. There is the possibility of a sub-category of transitional awards in Victoria known as transitional Victorian reference awards.

 5   Item 29 of Schedule 3 to the Transitional Act

 6   See in particular ss.30C, 30D 30M and 30N. As to the position in Western Australia, see para 12 of this decision.

 7   See Schedule 6A to the Transitional Act.

 8   See Subdivision E of Part 7 of Schedule 6 to the WR Act.

 9   Item 2A(2) of Schedule 3 and see also item 8A of Schedule 3.

 10   Item 29 of Schedule 3 to the Transitional Act

 11   See items 33-38A of Schedule 8 to the WR Act.

 12   WR Act s.206

 13   Three new APCSs were created by the AFPC before it ceased operation in 2009. Special Supported Wage System (Employees with a disability) Australian Pay and Classification Scale, [2007] APCS 1; Special Business Services (Employees with a disability) Australian Pay and Classification Scale, [2007] APCS 2 and Real Estate Agents’ (Commission Only) Australian Pay and Classification Scale [2007] APCS 3.

 14   [2010] FWA 3104.

 15   [2010] FWA 6688.

 16   Item 2 of Schedule 6 to the Transitional Act.

 17   MA000100.

 18   AP783940, AT783940.

 19   AP813963, AT813963.

 20   AN120505

 21   AN170126.

 22   MA000023.

 23   MA000002.

 24   AP787038, AT787038.

 25   AP825465, AT825465.

 26   AP824102, AT824102.

 27   AP815609, AT815609.

 28   AP815537, AT815537.

 29   AP811556, AT811556.

 30   AP780883, AT780883.

 31   AP780459, AT780459.

 32   AP825442, AT825442.

 33   AP811556, AT811556.

 34   AP787011, AT787011.

 35   AP807139, AT807139.

 36   AP788039, AT788039.

 37   AP807420, AT807420.

 38   AP806103, AT806103.

 39   AP807173, AT807173.

 40   AP806103, AT806103.

 41   AP807173, AT807173.

 42   MA000112.

 43   AN160068.

 44   AP799612, AT799612.

 45   AP799627, AT799627.

 46   MA000004.

 47   [2009] AIRCFB 450 at para 223.

 48   AP831581CRV, AT831581CRV.

 49   AN150135.

 50   MA000116 and see [2009] AIRCFB 945 at para 128.

 51   AN160071.

 52   AN140006.

 53   AN140094.

 54   AN140096.

 55   AP813621, AT813621.

 56   AN150080.

 57   AP799002, AT799002.

 58   AN170107.

 59   AP825011, AT825011.

 60   AP813621, AT813621.

 61   AP810322. Note: because the award applied in the Northern Territory on 27 March 2006 it is an award-based transitional instrument, not a Schedule 6 transitional award.

 62   AP769515.

 63   AP772066, AT772066.

 64   MA000019.

 65   AP778713CRV, AT778713CRV.

 66   MA000011.

 67   AN150028.

 68   MA000022.

 69   AN150170.

 70   MA000119.

 71   MA000009.

 72   AN150130.

 73   AP801881CRV, AT801881CRV.

 74   AP802224CRV, AT802224CRV.

 75   AP780799CRV, AT780799CRV.

 76   AP802224CRV, AT802224CRV.

 77   MA000092.

 78   AP772066, AT772066.

 79   AP772291, AT772291.

 80   AP784988CRV, AT784988CRV.

 81   AP811132, AT811132.

 82   AP785018, AT785018.

 83   AT773671CRV.

 84   AT806529.

 85   AN140096.

 86   AN160210.

 87   AN150150.

 88   AN160337.

 89   AP822056.

 90   AP812398.

 91   AP781149.

 92   MA000018.

 93   MA000027.

 94   MA000013.

 95   MA000028.

 96   MA000005.

 97   MA000033.

 98   AP835228.

 99   AP790805CRV, AT790805CRV.

 100   AN150097.

 101   AN150064.

 102   MA000065.

 103   AP812692CRV, AT812692CRV.

 104   [2009] AIRCFB 943.

 105   Ibid.

 106   AP819806.

 107   AP822247.

 108   AP825426.

 109   AP765673, AT765673.

 110   MA000048.

 111   MA000001.

 112   AN120141.

 113   AN120622.

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