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[2013] FWC 2936
DECISION
AND
REASONS FOR DECISION
Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch. 5, Item 6 - Review of all modern awards (other than modern enterprise and State PS
awards) after first 2 years
Western Australian Local Government Association
(AM2012/20
Australian Municipal, Administrative, Clerical and Services Union
(AM2012/130)
New South Wales Local Government Clerical, Administrative, Energy,
Airlines and Utilities Union
(AM2012/168)
COMMISSIONER CLOGHAN PERTH, 13 MAY 2013
Sch. 5, Item 6 - Review of all modern awards (other than modern enterprise and State PS
awards) after first 2 years.
[1] The Fair Work Commission (Commission) received applications from the:
Western Australian Local Government Association (WALGA) (AM2012/20):
Australian Municipal, Administrative, Clerical and Services Union (ASU)
(AM2012/130); and
New South Wales Local Government Clerical, Administrative, Energy, Airlines and
Utilities Union (USU) (AM2012/168).
[2] The applications by WALGA and the ASU are made to vary a modern award pursuant
to Fair Work (Transitional Provisions and Consequential Amendments) Act 2009, Part 2 of
Schedule 5.
[3] The application by the USU is made pursuant to ss.157-160 of the Fair Work Act 2009
(FW Act).
[4] The applications were forwarded to me on 25 March 2013 for determination.
PROCEDURAL BACKGROUND
[5] On 17 April 2013, my Associate advised WALGA, ASU and USU (collectively “the
original parties”) of a hearing on 7 May 2013.
[6] On 24 April 2013, my Associate forwarded to the original parties an email and draft
procedural directions for a hearing on 7 May 2013. As a consequence of the email, the USU
advised, also by email, that it no longer wished to press its application in its entirety, and
AUSTRALIA FAIR WORK COMMISSION
[2013] FWC 2936
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sought leave to withdraw its application. WALGA and the SU will now be referred to as the
parties (parties).
[7] A telephone conference of WALGA and the ASU was convened on 1 May 2013.
[8] Prior to the telephone conference, and utilising the draft procedural directions as
guidance, WALGA and the ASU provided:
those elements of the applications which have been referred to a Full Bench of the
Commission and dealt with;
those elements of the applications which have been referred to a Full Bench of the
Commission and are awaiting determination;
which terms of the Local Government Industry Award 2010 (LGI Award) can be
varied by agreement of WALGA and the ASU; and
which elements of the applications should be determined by the Commission as
constituted.
[9] The parties agreed, at the telephone conference on 1 May 2013, that the terms of the
LGI Award which can be varied, by agreement, should occur at the hearing on 7 May 2013.
On 6 May 2013, the Commission was provided with written agreed reasons for the variations
to the LGI Awad.
[10] At the hearing on 7 May 2013, WALGA was represented by Mr S Roffey, Employee
Relations Service Manager, Workplace Solutions and the ASU by Mr W Fridell, Industrial
Officer.
[11] I now turn to the terms of the LGI Award which the parties have sought to vary by
consent.
VARIATIONS TO LGI AWARD
Clause 10. Employment categories
[12] Delete paragraph 10.4(f) and insert in lieu:
“A part-time employee may agree to work up to an average of 38 ordinary hours per
week at the hourly ordinary time rate provided the agreement is entered into without
duress, in writing and stipulates that hours are to be paid at hourly ordinary time rates.”
[13] The proposed variation is necessary to clarify an ambiguity in drafting the Award.
The variation removes the ambiguity and ensures certainty where a part-time employee works
additional ordinary hours up to an average of 38 hours per week.
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Clause 14. Minimum wages
[14] Insert new sub-clause 14.7 as follows:
“14.7 Annualised Salaries
(a) Annual salary instead of award provisions
Notwithstanding any other provision of this award, an employer and an
employee may agree that the employer may pay the employee an annual
salary in satisfaction of any or all of the following provisions of the
award:
(i) Minimum Wages – clause 14;
(ii) Allowances – clause 15;
(iii) Higher duties – clause 18;
(iv) Penalty rates – clause 23;
(v) Overtime – clause 24; and
(vi) Annual leave loading – clause 25.4
(b) Annual salary not to disadvantage employees
(i) The annual salary must be no less than the amount the employee
would have received under this Award for the work performed over
the year for which the salary is paid (or if the employment ceases
earlier over such lesser period as has been worked).
(ii) The annual salary of the employee must be reviewed by the
employer at least annually to ensure that the compensation is
appropriate having regard to the award provisions which are
satisfied by the payment of the annual salary.
(c) For the purposes of the NES, the base rate of pay of an employee
receiving an annual salary under this clause comprises the portion of
annual salary equivalent to the relevant rate of pay in clause 14 and
excludes any incentive-based payments, bonuses, loadings, monetary
allowances, overtime and penalties.
(d) An annual salary agreement must:
(i) be in writing and signed by both parties;
(ii) state the date on which the arrangement commences;
(iii) be provided to the employee;
(iv) contain a provision that the employee will receive no less under the
arrangement than the employee would have been entitled to if all
award obligations had been met, taking account of the value of the
provision of matters not comprehended by the award such as
private use of an employer provided motor vehicle;
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(v) be subject to an annual review;
(vi) contain details of any salary package arrangements, including the
annual salary that is payable;
(vii) contain details of any other non-salary benefits provided to the
employee such as an employer provided motor vehicle;
(viii) contain details of any performance pay arrangements and
performance measurement indicators;
(ix) contain the salary for the purposes of accident make up pay; and
(x) contain the award level classification for the role.
(e) An annual salary agreement may be terminated:
(i) by the employer or the employee giving four weeks’ notice of
termination, in writing, to the other party and the agreement
ceasing to operate at the end of the notice period; or
(ii) at any time, by written agreement between the employer and the
employee.
(f) On termination of an annual salary agreement, the employee will revert
to the Award entitlements unless a new annual salary agreement is
reached.”
[15] Annualised salaries are a common feature in local government. The variation is
consistent with the objectives of modern awards and will reduce employment costs associated
with payroll administration. While the ASU has a policy position opposed to annualised
salary clauses, in this instance, it does not oppose the new sub-clause as its terms reflect
prevailing industry standards and contain appropriate safeguards for employees.
Clause 15. Allowances
[16] Insert new paragraph 15.7(c) as follows:
“15.7(c) First aid allowance is payable during periods of paid leave.”
[17] The new paragraph is to clarify that the first aid allowance is payable during periods of
leave and removes the current uncertainty and ambiguity.
[18] Insert new dot point at the end of 15.8(c)(i) as follows:
“● fighting fires.”
and make the consequential grammatical changes to the two dot points above the new dot
point.
[19] The adverse working conditions associated with fighting fires is considered
comparable with other working activities defined as Level 1 working conditions.
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Clause 18. Higher duties
[20] Delete paragraph 18.1 and insert in lieu:
“18.1 An employee directed or appointed to relieve in a higher level position where
the employee is required to perform the substantive functions of the role for
more than one day will be paid at the higher hourly ordinary award rate
pursuant to clause 14.1.”
[21] The variation is necessary to clarify that the minimum higher duties entitlement of an
employee carrying out the higher duties. The payment for the person receiving higher duties
is based on the rate prescribed in the industrial instrument and not the incumbent of the higher
classification’s actual salary rate.
Clause 21. Ordinary hours of work and rostering
[22] Vary sub-clause 21.2(b)(ii) to provide as follows:
(ii) caretakers/hall keepers/caravan park employees;”
[23] The variation is necessary to recognise local government employees who work in
caravan parks and the appropriateness of grouping those employees employed as caretakers
and hall keepers.
[24] Vary sub-clause 21.2(b)(xii) to provide as follows:
“(xii) recreation centres/golf courses; and”
[25] The variation is necessary to recognise local government employees who work in golf
courses and the appropriateness of grouping golf courses with recreation centres.
Clause 24. Overtime
[26] Insert a new sub-clause 24.2(d) to provide as follows:
“(d) In computing overtime, each day’s work stands alone.”
[27] The variation clarifies that overtime was intended and is to apply on a daily basis.
[28] For the above reasons, Determination PR536549 is made to vary the LGI Award in the
above terms.
COMMISSIONER
[2013] FWC 2936
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Appearances:
Mr S Roffey on behalf of WALGA.
Mr W Fridell on behalf of the ASU.
Hearing details:
2013:
Perth, Melbourne, Sydney
7 May.
Printed by authority of the Commonwealth Government Printer
Price code C, PR536528
