[2015] FWCFB 616
The attached document replaces the document previously issued with the above code on 23
January 2015.
The Publication ID at the bottom of the document has been corrected.
Timothy Zahara
Associate to Vice President Catanzariti
Dated 2 February 2015
.
1
Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch. 6, Item 4—Application to make a modern award to replace an enterprise instrument
Commonwealth of Australia acting through the Minister Assisting the
Prime Minister for the Public Service
v
CPSU, the Community and Public Sector Union and Others
(EM2013/62)
Commonwealth employment
VICE PRESIDENT CATANZARITI
DEPUTY PRESIDENT SMITH
COMMISSIONER JOHNS
SYDNEY, 23 JANUARY 2015
Application for a modern enterprise award to replace the Australian Public Service Award
1998 [AP766579] - whether modern enterprise award should be made - modern enterprise
award should be made in the circumstances - order to be settled by member of full bench.
Introduction
[1] The Commonwealth of Australia acting through the Minister Assisting the Prime
Minister for the Public Service has made an application to make a modern enterprise award to
replace the Australian Public Service Award 1998 [AP766579] (APS Award).
[2] The Public Service Minister (Minister) is an employing authority, pursuant to s.795 of
the Fair Work Act 2009 (Act), and through whom the employer, being the Commonwealth of
Australia, must act. This is significant as the Australian Public Service (APS) has over
160,000 employees with a range of occupations. It would be difficult to think of an
occupation which was not represented in the Australian Public Service.
[3] On 12 December 2014 the Minister filed and served an exposure draft of the
Australian Public Service Enterprise Award 2014 (Proposed Award). The terms of the
Proposed Award are mostly agreed. The matters not agreed are the subject of this decision.
The approach
[4] In examining the approach which should be taken to the making of an enterprise
modern award it is convenient to briefly review some of the history of the modern award
process as it helps to put into context the task before us.
[2015] FWCFB 616
DECISION
AUSTRALIA FairWork Commission
[2015] FWCFB 616
2
[5] The award modernisation process was initiated by a request signed by the Minister for
Employment and Workplace Relations on 28 March 2008, pursuant to s.576C(1) of the
Workplace Relations Act 1996 (WR Act).
[6] To appreciate the background against which award modernisation took place, we set
out in part the request1 signed by the then Minister for Employment and Workplace Relations,
the Hon. Julia Gillard.
(2) The creation of modern awards is not intended to:
(a) extend award coverage to those classes of employees, such as
managerial employees, who, because of the nature or seniority of their role,
have traditionally been award free. This does not preclude the extension of
modern award coverage to new industries or new occupations where the
work performed by employees in those industries or occupations is of a
similar nature to work that has historically been regulated by awards
(including State awards) in Australia;
(b) result in high-income employees being covered by modern awards;
(c) disadvantage employees;
(d) increase costs for employers;
(e) result in the modification of enterprise awards. This does not preclude
the creation of a modern award for an industry or occupation in which
enterprise awards operate.
However s.576V of the Act provides that a modern award is to be expressed not to
bind an employer who is bound by an enterprise award in respect of an employee to
whom the enterprise award applies.
[7] The application of Clause 2(c) and (d) of the Request presented particular problems
for the Commission in dealing with applications for modern awards. The modern award
making process was not done in a vacuum and it had to take account of existing instruments.
This was not a case of the parties having a clean slate and in the name of award
modernisation, seeking changes without presenting proper merit arguments. An example in
the process then, and in the matter before us now, is hours of work. Historically changes to
ordinary hours of work have been accompanied by extensive and reasoned argument as to
why the Commission should alter its awards. This tension in not trying to disadvantage
employees and increase costs for employers led to the Full Bench in the modern award
process to adopt a process of identifying the critical mass of particular terms and/or conditions
of employment across the various awards with which it dealt. This concept is evidenced by
many Full Bench decisions but the following is illustrative:
1 http://www.airc.gov.au/awardmod/download/award_modernisation_request.pdf
[2015] FWCFB 616
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In general terms we have considered the applications in line with our general
approach in establishing the terms of modern awards. We have had particular regard
to the terms of existing instruments. Where there is significant disparity in those terms
and conditions we have attached weight to the critical mass of provisions and terms
which are clearly supported by arbitrated decisions and industrial merit.2
[8] It can be seen that whilst the creation of a modern enterprise award is a new award and
not a variation to the existing award, nevertheless the current terms and conditions play an
important role and must be given appropriate weight when regard is had to the history of the
modern award process. The difficulty faced by the Commission when it was required to
modernise numerous awards in a sector and examine the “critical mass”, is not present when
an enterprise award is considered. The conversion of an existing enterprise award to a modern
enterprise award presents a much clearer picture. The ability not to disadvantage employees
and increase the cost to employers is a less complex task. We emphasise that the modern
award process was not a substitute for reasoned argument with relevant evidence where
significant changes were sought to be made to longstanding terms and conditions of
employment which were in awards of the Commission. This is not to say that the modern
award process cannot embrace change, it can. The legislative requirements demand change,
but particular change. It can been seen that the award modernisation process was not
designed, simpliciter, to alter bargaining power.
The legislative requirements
[9] The role of the Commission in an application to make a modern enterprise award is
governed by sub-item 4(5) of Schedule 6 to the Fair Work (Transitional Provisions and
Consequential Amendments Act 2009 (Transitional Act) which provides:
(5) In deciding whether or not to make a modern enterprise award, and in
determining the content of that award, the FWC must take into account the following:
(a) the circumstances that led to the making of the enterprise instrument
rather than an instrument of more general application;
(b) whether there is a modern award (other than the miscellaneous modern
award) that would, but for the enterprise instrument, cover the persons who
are covered by the instrument, or whether such a modern award is likely to be
made in the Part 10A award modernisation process;
(c) the content, or likely content, of the modern award referred to in
paragraph (b) (taking account of any variations of the modern award that are
likely to be made in the Part 10A award modernisation process);
(d) the terms and conditions of employment applying in the industry in
which the persons covered by the enterprise instrument operate, and the extent
to which those terms and conditions are reflected in the instrument;
2 [2010] FWAFB 305, paragraph 3.
[2015] FWCFB 616
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(e) the extent to which the enterprise instrument provides
enterprise-specific terms and conditions of employment;
(f) the likely impact on the persons covered by the enterprise instrument,
and the persons covered by the modern award referred to in paragraph (b), of
a decision to make, or not make, the modern enterprise award, including any
impact on the ongoing viability or competitiveness of any enterprise carried on
by those persons;
(g) the views of the persons covered by the enterprise instrument;
(h) any other matter prescribed by the regulations.
[10] Item 6 links the modern enterprise award objective to the modern award objective and
the minimum wages objective found at ss.134 and 284 of the Act. It provides:
6 The modern enterprise awards objective
(1) The modern awards objective and the minimum wages objective apply to the
FWC making a modern enterprise award under this Division.
(2) However, in applying the modern awards objective and the minimum wages
objective, the FWC must recognise that modern enterprise awards may provide terms
and conditions tailored to reflect employment arrangements that have been developed
in relation to the relevant enterprises. This is the modern enterprise awards objective.
[11] It is also relevant to draw attention to item 11 of Division 3 which provides:
11 Enterprise instrument modernisation process is not intended to result in
reduction in take-home pay
(1) The enterprise instrument modernisation process is not intended to result in a
reduction in the take-home pay of employees.
(2) An employee’s take-home pay is the pay an employee actually receives:
(a) including wages and incentive-based payments, and additional
amounts such as allowances and overtime; but
(b) disregarding the effect of any deductions that are made as permitted by
section 324 of the FW Act.
Note: Deductions permitted by section 324 of the FW Act may (for example) include
deductions under salary sacrificing arrangements.
(3) An employee suffers a modernisation-related reduction in take-home pay if,
and only if:
[2015] FWCFB 616
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(a) a modern enterprise award made in the enterprise instrument
modernisation process starts to apply to the employee when the award comes
into operation; and
(b) the employee is employed in the same position as (or a position that is
comparable to) the position he or she was employed in immediately before the
modern enterprise award came into operation; and
(c) the amount of the employee’s take-home pay for working particular
hours or for a particular quantity of work after the modern enterprise award
comes into operation is less than what would have been the employee’s
take-home pay for those hours or that quantity of work immediately before the
award came into operation; and
(d) that reduction in the employee’s take-home pay is attributable to the
enterprise instrument modernisation process.
[12] Item 11 highlights the injunction contained in the original request provided by the then
Minister which related to disadvantage to employees.
The application of the legislative task
[13] We now turn to each of the matters that we must take into account.
The circumstances that led to the making of the enterprise instrument rather
than an instrument of more general application: Item 4(5)(a)
[14] The Minister provided an extensive history beginning with the Public Service Act
1902 and the Public Service Act 1922 and leading up to the award simplification process
which also set properly fixed minimum rates.3 The APS Award replaced the Australian Public
Service General Employment Conditions Award 1995 and consolidated and set aside the
following instruments:
(a) Australian Public Service, Agency Specific Provisions Award 1995;
(b) Australian Public Service, General Service Officers (Salaries and Specific
Conditions) Award 1995;
(c) Australian Public Service, Technical Officers (Salaries and Specific
Conditions) Award 1995;
(d) Australian Public Service, Food Standards Officers (Salaries and Specific
Conditions Award 1995;
(e) Australian Public Service, Specific Professional Classifications (Salaries and
Specific Conditions) Award 1995;
3 See for example the Paid Rates Review Print Q7661.
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(f) Australian Public Service, Administrative Service Officers (Salaries and
Specific Conditions) Award 1995;
(g) Australian Public Service, Professional Officers (Salaries and Specific
Conditions) Award 1995;
(h) Australian Public Service, Senior Executive Service (Salaries and Specific
Conditions) Award 1995;
(i) Australian Public Service Home Based Interim Award 1994;
(j) Public Service Arbitrator’s Determination No. 119 of 1951; and
(k) Public Service Arbitrator’s Determination No 24 of 1925.
[15] It can be seen from this brief review that the APS has had a long and distinct history.
This is a factor in favour of making a modern enterprise award.
Whether there is a modern award (other than the miscellaneous modern award)
that would, but for the enterprise instrument, cover the persons who are covered
by the instrument, or whether such a modern award is likely to be made in the
Part 10A award modernisation process: Item 4(5)(b).
[16] It is submitted that there is no single award that would, but for the APS Award, cover
all employees who are covered by the APS Award. It was submitted earlier that if a modern
enterprise award was not made, then a large majority of employees would be covered by the
Miscellaneous Award 2010 [MA000104] (the Miscellaneous Award).
[17] As was made clear in the award modernisation Full Bench decision dated 4 December
2009 ([2009] AIRCFB 945 at paragraph 153):
“We agree with those who have suggested that the coverage of the award is very
narrow and likely to be limited in time where emerging industries are concerned or
where the expansion of coverage of a modern award is involved. Accordingly we do
not think the award should contain a comprehensive safety net designed for any
particular occupation or industry. Rather it should contain basic conditions only,
leaving room for the application of an appropriate safety net in another modern
award in due course.”
[18] The Miscellaneous Award was not created or designed to be a universal safety net but
to be a transition point to another modern award whose coverage may require review. These
circumstances are a factor in favour of creating a modern enterprise award.
The content, or likely content, of the modern award referred to in paragraph (b)
(taking account of any variations of the modern award that are likely to be made
in the Part 10A award modernisation process): Item 4(5)(c)
[2015] FWCFB 616
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[19] It is apparent from the history of the awards which have been present in the APS that
the content of the various industry specific modern awards do not reflect the needs, terms and
conditions in the APS. This is a factor in favour of making a modern enterprise award.
The terms and conditions of employment applying in the industry in which the
persons covered by the enterprise instrument operate, and the extent to which
those terms and conditions are reflected in the instrument: Item 4(5)(e)
[20] We are satisfied that there are enterprise specific terms and conditions in the APS. We
shall return to consider some of these matters later, but a few are worthy of mention:
APS specific classifications;
Flextime;
Personal leave;
Approach to redundancy;
District and remote localities provisions.
[21] In particular we note that the wages have been fixed having regard to internal
relativities rather than external comparisons which can be seen in industry modern awards. A
Full Bench considered the conversion of paid rates awards in establishing properly fixed
minimum rates:
“We now turn to the method of establishing properly fixed minimum rates. Having
considered all of the submissions we have decided to adopt an approach which gives
primacy to the maintenance of internal relativities. The approach involves identifying
the key classification in the award under review, striking the appropriate work value
relativity between that classification and the fitter in the Metal, Engineering and
Associated Industries Award, 1998 - Part 1 [Print Q2527], adjusting the rate for the
key classification accordingly (if necessary) and then adjusting all of the rates in the
award under review to maintain the pre-existing relativities with the key classification.
We understand that this may lead to differences in minimum rates at particular skill
levels across the award system. Nevertheless we think this approach is preferable to
any other because it maintains the established relativities at the enterprise level. For
the most part the awards requiring adjustment have previously been paid rates awards
and have a history of adjustment on an enterprise or similar basis. In the public
sector, for example, the establishment and maintenance of internal relativities has
been regarded as more important than adjusting for variation in market rates for
particular skill groups or particular locations. We emphasize that this approach is
directed to enterprise based awards including those in the public service. Should there
be awards which are not enterprise based, but which apply to a number of employers,
consideration might have to be given to setting aside such an award and creating
enterprise specific awards in order to implement the MRA principle without disrupting
the relativities in the establishments concerned. If necessary an application may be
made to the President for a special case.”4
[22] It established some appropriate principles which included:
4 Ibid, page 15–16.
[2015] FWCFB 616
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2. The rates in the award under review should be examined to ascertain whether
they equate to rates in other awards which have been adjusted in accordance with the
August 1989 approach with particular reference to the current rates for the relevant
classifications in the Metal, Engineering and Associated Industries Award, 1998 -
Part 1 [Print Q2527]; where the rates do not equate they will require conversion in
accordance with these principles.
3. Fixation of appropriate minimum rates should be achieved by making a
comparison between the rate for the key classification within the award with rates for
appropriate key classifications in awards which have been adjusted in accordance
with the 1989 approach.
4. In the fixation of rates the relationship between the key classification in the
award and the metal industry fitter should be the starting point; internal award
relativities established, agreed or determined should be maintained: see, for example,
the approach adopted in Kenworth Trucks Vehicle Industry Award 1981 [Print
K0003] and Commonwealth Serum Laboratories Commission Sales Representative
Award 1987 [Print K4939].5
[23] Salary relativities have been established for the APS and whilst there are some
comparisons at the key classification level, the nature of the work which gives rise to the
relativities is enterprise specific. This is a factor in favour of making a modern enterprise
award.
The likely impact on the persons covered by the enterprise instrument, and the
persons covered by the modern award referred to in paragraph (b), of a decision
to make, or not make, the modern enterprise award, including any impact on the
ongoing viability or competitiveness of any enterprise carried on by those
persons: Item 4(5)(f).
[24] Putting to one side for the present the Senior Executive Service (SES), if the award
was not made it would seriously impact upon the Better Off Overall Test (BOOT) for the
purpose of bargaining. True it is that the current agreement would mean that little actual
change would take place; however, this is not the focus. The modern award exercise, in its
totality, was concerned with a safety net going forward from which the BOOT could be
applied as an anchor point for bargaining. The two streams should not be confused.
[25] It was submitted by the Minister that by contrast, if the modern enterprise award was
made, the BOOT test would be assessed against a single enterprise specific award containing
relevant terms and conditions of employment. There is considerable force to this argument
and it is a factor in favour of making a modern enterprise award.
5 Ibid.
[2015] FWCFB 616
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The views of the persons covered by the enterprise instrument: Item 4(5)(g)
[26] All parties to the APS Award support the making of this modern enterprise award. No
person opposes the award. Whilst consent is not decisive of the matter, it is a factor in favour
of making a modern enterprise award.
Any other matter prescribed by the regulations: Item 4(5)(h)
[27] There are no regulations relevant to this criterion.
Matters at issue
[28] Whilst there has been a considerable amount of work in reaching a mostly agreed draft
in the Proposed Award, some matters remain at issue and have been the subject of argument.
We now turn to those matters.
1. Coverage of the Senior Executive Service
[29] It is the submission of the Minister that SES employees should not be covered by a
modern enterprise award. It submits that the SES is only covered by five provisions of the
APS Award and that the focus in developing the award has been for non-SES employees.
In addition, the modern awards were not intended to cover those classes of employees, such
as managerial employees, who, because of the nature or seniority of their role, have
traditionally been award free. It was noted that SES employees earn in excess of the
high income threshold referred to under s.47 of the Act.
[30] In opposing the deletion of SES employees from coverage it was argued that if they
were removed they would lose unfair dismissal rights.
[31] Whilst the loss of unfair dismissal rights is a disadvantage, nonetheless the general
scheme of the modern award safety net system discourages the coverage of high income
earners. In this case there is limited coverage in relation to terms and conditions of
employment and award regulation has not focused on this class of employment. There is no
good reason to maintain award coverage which is relevant to the modern award objective or
the minimum rates objective. We do not propose to cover SES classified employees.
2. Hours of Work and Span of Hours
[32] The Minister submits that hours of work should be increased, where applicable, from
36.75 hours per week to 38 hours per week. In addition, the span or ordinary hours should be
varied from the current span (8.00am to 6.30pm) to 7.00am to 7.00pm. This change is
opposed.
[33] It is argued by the Minister that:
the span of hours proposed is more reflective of that which is contained in enterprise
agreements for the majority of APS employees,
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the span of hours in the APS Award 1998 no longer represents an industry standard,
the proposed span of hours would promote flexibility and the efficient and
productive performance of work,
flextime and time off in lieu remain available as a flexibility,
Ordinary weekly hours of work are recognised by the National Employment
Standards (NES) as 38,
Of the 122 modern awards only nine have hours less than 38, and
There are industry specific reasons why those nine awards have hours of less than 38
and in some cases relating to Occupational Health and Safety reasons.
[34] Those opposing the change to the ordinary hours of duty and the spread of hours
argue:
A 36.75 hour week for relevant employees has been in the Australian Public Service
since 1921 as a result of Determination No. 10 of 1921.
Since that time ordinary hours of work for the balance of the community has reduced
from 48 to 38 and apart from a brief period during World War 2, hours in the APS
have remained the same.
It is a well established and existing condition.
Whilst a number of agreements provide for ordinary hours to be more than 36.75 this
has been offset in the bargaining by paid leave between Christmas and New Year.
A change to the span of hours would alter when employees would become entitled to
overtime and when shift workers are paid penalties.
A change to the spread of hours would have implications for women with family
responsibilities.
[35] As to the ordinary hours of work, we see no reason to depart from that which has
applied for over 90 years. The submission which seeks to attribute special reasons to
particular sector for reduced hours in modern awards misunderstands the nature of award
modernisation which was discussed earlier. The aim was to modernise, but not create, a
situation where employees were disadvantaged and employers had to bear additional costs.
Whatever the original reason for the reduction in hours of work in those sectors identified, it
was not a reason why it was maintained in the modern award. Where a myriad of awards
applied, the task was to identify the “critical mass” where a particular condition would
remain. In the case of an enterprise modern award, as was stated earlier, this is a much easier
task. The history of hours of work in the APS is clear and should be maintained for this
process. Lest it be said otherwise this is not a ruling on the appropriateness of the current
hours but to change those hours a proper case would need to be undertaken.
[2015] FWCFB 616
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[36] The same is true for the spread of hours as the concepts are very much interrelated and
have a shared history.
3. Remote conditions, district allowances and removal expenses
[37] The Minister’s submission in relation to these matters is that they should only be
payable to employees where the transfer is in the interest of the APS or on promotion.
The view of the respondents is that the existing provisions in the APS Award should remain.
[38] Two things need to be said in addition to the situation where these have been long
standing provisions. The first is that remote conditions and district allowances are in the
nature of a disability payment. It does not deal with the issue by creating two classes of
persons who may suffer the same disability. If the disability no longer exists then that should
be the focus rather than creating two classes of employees. The second observation is that
employees cannot simply move from one location to another without approval. It is the
approval process which should be the subject of examination rather than the course proposed
by the Minister.
[39] Given the long history and the focus which should be on any disabilities suffered we
will not alter the current position.
4. Travel expenses
[40] The Minister seeks a change in the focus of travel expenses from one where an
identifiable travel allowance is paid to one where an employee is reimbursed reasonable travel
expenses. Again, the Minister identifies the fact that many APS agreements provide for this
approach. It is noted that most Commonwealth agencies supply employees with travel cards
or other credit facilities that permit employees to charge reasonable expenses directly to the
Commonwealth. The respondents oppose such a change.
[41] The Minister is correct in that the approach advocated is present in many modern
awards. This is not an easy area to consider. Problems arise about what is reasonable often
with reference to the Australian Tax Office approach to travel expenses for taxation purposes.
Further, it is by no means universal that credit facilities are provided and this might lead to an
employee having to bear the loss of personal funds for a period of time not to mention any
credit charges if incurred.
[42] We prefer the approach of the respondents which creates a definable obligation as well
as permitting the Commonwealth to take direct responsibility for travel expenses where it
pays for those expenses directly. We are content that this is an appropriate modernisation of
the current award provisions.
5. Superannuation
[43] Currently the award has limited reference to superannuation and simply refers to
existing legislation. The respondents seek to include a provision dealing with superannuation
with particular emphasis on the current contribution rate by the Commonwealth. The
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respondents argue that it is necessary to maintain that contribution rate in the event that
legislation changes.
[44] The Minister draws our attention to s. 40 of the Act:
40 Interaction between fair work instruments and public sector employment
laws
Generally, public sector employment laws prevail
(1) A public sector employment law prevails over a fair work instrument that deals
with public sector employment, to the extent of any inconsistency.
When fair work instruments or their terms prevail
(2) However, a fair work instrument, or a term of a fair work instrument, that
deals with public sector employment prevails over a public sector employment law, to
the extent of any inconsistency, if:
(a) the instrument or term is prescribed by the regulations for the purposes
of that particular law; or
(b) the instrument or term (other than an FWC order or a term of an FWC
order) is included in a class of instruments or terms that are prescribed by the
regulations for the purposes of that particular law.
[45] It appears that the only reason the respondents seek to include a superannuation
provision is to try to protect the current contribution rate for employee superannuation.
[46] We see no reason why we should now seek to regulate superannuation in an award
where no regulation previously existed and where such regulation would, in any event, be
moot.
6. Personal/carers leave
[47] This is largely an agreed item but nonetheless it is appropriate for the Full Bench to
examine. Both the Commonwealth and the respondents seek to retain the current award
entitlement for 15 days personal leave by supplementing the NES. What is not agreed is the
continuation of the current provision where an employee after 12 months service is entitled to
the full amount of leave on the anniversary of their employment. Currently the APS Award
provides:
28.2.1 Full time employees
Entitlement is 10 days full pay and 10 days at half pay leave on engagement as an
ongoing employee and on completion of each 12 month period of service.
28.2.1(a) Personal leave credits will be cumulative.
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[48] The Minister argues that the NES provision should apply and that there is no good
reason not to adopt the NES. The NES provides at s.96 of the Act:
96 Entitlement to paid personal/carer’s leave
Amount of leave
(1) For each year of service with his or her employer, an employee is entitled to
10 days of paid personal/carer’s leave.
Accrual of leave
(2) An employee’s entitlement to paid personal/carer’s leave accrues
progressively during a year of service according to the employee’s ordinary hours of
work, and accumulates from year to year.
[49] The respondents argue that the existing provision should remain and further, that to
remove the current provision would avoid “presenteeism” where employees attend for work
when they are sick. In addition, the respondents point to the Black Coal Mining Industry
Award 2010 [MA000001] which not only provides for 15 days but provides for a full
entitlement on each anniversary. There is no specific reference to this entitlement in the
decision of the Full Bench6 and therefore we will be informed by the arguments presented to
us.
[50] To begin, we accept that the NES should be supplemented to provide for the current
period of personal/carers leave. There is such a long history of this quantum being available to
employees that we accept the agreement of the parties. We are not however persuaded to
retain the present accrual approach. We believe that it is appropriate to adopt the NES
approach to accrual. The reasons advanced by the respondent do not identify any specific
enterprise reason for maintaining the previous accrual system.
7. Cashing out of annual leave
[51] The Minister seeks the ability for the employer and the employee to agree on cashing
out of annual leave. This is opposed by the respondents. We note that this has not been
adopted as a safety net award provision to date.
[52] We also note that the current review of modern awards will again look at this question
and it may be revisited upon the decision in that case. Consequently, we reject at this stage,
the Minister’s drafting in clause 16.6 of the Proposed Award.
8. Definition of shiftworker for annual leave purposes
[53] The Minister seeks to use as a starting point s.87 of the Act which provides inter alia:
6 [2008] AIRCFB 1000.
[2015] FWCFB 616
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87(3) An award/agreement free employee qualifies for the shiftworker annual leave
entitlement if:
(a) the employee:
(i) is employed in an enterprise in which shifts are continuously
rostered 24 hours a day for 7 days a week; and
(ii) is regularly rostered to work those shifts; and
(iii) regularly works on Sundays and public holidays; or
(b) the employee is in a class of employees prescribed by the regulations as
shiftworkers for the purposes of the National Employment Standards.
(4) However, an employee referred to in subsection (3) does not qualify for the
shiftworker annual leave entitlement if the employee is in a class of employees
prescribed by the regulations as not being qualified for that entitlement.
(5) Without limiting the way in which a class may be described for the purposes of
paragraph (3)(b) or subsection (4), the class may be described by reference to one or
more of the following:
(a) a particular industry or part of an industry;
(b) a particular kind of work;
(c) a particular type of employment.
[54] In particular the Minister seeks to make it a requirement for the additional week’s
leave that an employee has a shift pattern where they are continuously rostered 24 hours a day
for 7 days a week and regularly work on Sundays and public holidays.
[55] The respondents seek to retain the present position which has similar constraints but
does not require a roster to be a 24 hour, 7 day a week roster. There are many variations on
roster patterns which attract the additional week’s leave. However, it is not universal that an
employee must rotate through 24 hours and 7 days. It is necessary to regularly work weekends
and public holidays. We believe that the approach under the current award should be
maintained.
9. Maternity and paternity leave
[56] The Minister argues that it is unnecessary for the award to cover these matters as they
are provided for in the Maternity Leave (Commonwealth Employees) Act 1973 (the ML Act).
Again our attention is drawn to s. 40 of the Act.
[57] The respondents argue that:
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Such a fundamental gender equity provision should not be removed from a modern
APS enterprise award.
The current APS award provides for 12 weeks paid leave.
There is no provision for the employer to communicate any definite decision to
introduce significant change that affects the employee during a period of
maternity/paternity leave.
[58] We acknowledge that there is legislation covering this subject and the operation of
s.40 of the Act. However, there are some differences and we think the best course it to act out
of an abundance of caution and retain the existing provision. These are important provisions
and should not be altered lightly which may have unintended consequences.
10. Dispute resolution training leave and paid time for attending FWC proceedings
[59] The current award provides for both leave to attend short courses and payment for
representatives to attend proceedings in the Commission under certain conditions.
The Minister opposes the maintenance of these provisions and submits that they are not
industry standards. The respondents seek the maintenance of the current provisions but added
to the standard dispute resolution clause. It is submitted by the Minister that the respondents
have enlarged the current clause. Dispute resolution training leave is not unusual in modern
awards. Given that it is an existing provision, we will retain the substance of these provisions
provided that the new clause does not travel further than the current provision.
11. Nursing classifications
[60] The Australian Nursing and Midwifery Federation (ANF) submit that nursing
classifications and wage structures should be included in the new modern enterprise award.
The Minister opposes such a course and submits that it only employs 16 practicing nurses and
they are classified in general APS classifications. As we stated earlier in this decision, one of
the reasons in support of making an enterprise modern award is the importance of the internal
relativities established over time. With this in mind we decline to include specific nursing
classifications and wage structures. We do so against the knowledge that nurses did succeed
in achieving an occupational based modern award. However given the approach adopted
under this enterprise award in the past, we will not include specific nursing classifications or
wage scales.
12. Agency specific schedules
[61] The Minister opposes the inclusion of any agency specific schedules whereas the
respondents seek to retain some entitlements which are agency specific. The respondents seek
to retain a number of provisions which are based upon matters peculiar to the agency. For
example the Department of Defence has an allowance for employees if they are employed on
a surface vessel or a submarine.
[62] As a general rule we agree that work value or disability type payments should be
retained in the new modern enterprise award. We have not had detailed submissions on each
[2015] FWCFB 616
16
of these matters. We have no preference as to whether or not these matters are absorbed into
the award proper or remain identified as an agency specific matter. However, if the same
subject matter is dealt with both in the main body of the award and in a schedule there will
have to be a good reason for any difference in treatment. We think the appropriate course is to
refine these matters in the settlement of the orders.
13. Rates of pay for apprentices
[63] The pay percentages for apprentices are not included in the Ministers draft. It was
submitted that it was a matter for the Full Bench to decide having heard the submissions. As a
consequence of the Full Bench decision in the case involving apprentices, trainees and
juniors,7 the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries
Union” known as the Australian Manufacturing Workers’ Union (AMWU) put forward a
proposal. The AMWU took some time outlining its approach to the fixation of the
percentages having regard to the Full Bench decision.
[64] In all the circumstances we will adopt that which is proposed by the AMWU.
Conclusion
[65] We are satisfied that a strong case has been made out for the creation of a modern
enterprise award for the APS. We will make the Award in the terms we have decided. There
are some matters of drafting which may require fine tuning so we refer the matter to Deputy
President Smith to settle the orders with recourse to members of this Full Bench if necessary.
VICE PRESIDENT
Appearances:
L Benfell with K Rowsell for the Community and Public Sector Union.
M Nicolaides for the “Automotive, Food, Metals, Engineering, Printing and Kindred
Industries Union” known as the Australian Manufacturing Workers’ Union.
P O’Grady of Counsel for the Commonwealth of Australia acting through the Minister
Assisting the Prime Minister for the Public Service
7 (2013) FWCFB 5411.
THE FAIR WORK COMMISSION THE SEAA
[2015] FWCFB 616
17
Hearing details:
2014.
Canberra:
December 15 and 16.
Printed by authority of the Commonwealth Government Printer
Price code C, AP766579 PR560403
