Fair Work Act 2009
s.156 - 4 yearly review of modern awards

4 yearly review of modern awards – Manufacturing and Associated Industries and Occupations Award 2010 [MA000010] and Electrical Power Industry Award 2010 MA000088] – Fair Work Act 2009 ss. 134, 138 and 156 – application to insert electrical licence allowance – application refused.

Introduction

[1] On 9 May 2014, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) sought that these two awards be varied as part of the first 4 yearly review of modern awards (the Review) to introduce an electrical licence allowance. The provision that the CEPU seeks to introduce into the Electrical Power Industry Award 2010 1 (Electrical Power Award) is as follows:

“An electrical worker who holds a certificate III electrotechnology qualification and holds the appropriate electrical licence, who in the course of their duties is required to perform electrical wiring work on an electrical installation as defined in the relevant state legislation, must be paid an all-purpose allowance of 4.55% of the standard rate per week.”

[2] The provision proposed in respect to the Manufacturing and Associated Industries and Occupations Award 2010 2 (Manufacturing Award) is identical, save that the allowance is proposed to be 172.88% of the standard rate, as the standard rate in that award is an hourly rate whilst it is a weekly rate in the Electrical Power Award.

[3] The proposed allowance would be approximately $34.80 per week based upon current rates. Under the Manufacturing Award, a tradesperson reclassified from C10 to C9 would receive a minimum rate increase of $23.90 per week.

[4] The Review is required to be conducted in accordance with s.156 of the Fair Work Act 2009 (the Act), which states:

“156 4 yearly reviews of modern awards to be conducted

Timing of 4 yearly reviews

(1) The FWC must conduct a 4 yearly review of modern awards starting as soon as practicable after each 4th anniversary of the commencement of this Part.

Note 1: The FWC must be constituted by a Full Bench to conduct 4 yearly reviews of modern awards, and to make determinations and modern awards in those reviews (see subsections 616(1), (2) and (3)).

Note 2: The President may give directions about the conduct of 4 yearly reviews of modern awards (see section 582).

What has to be done in a 4 yearly review?

(2) In a 4 yearly review of modern awards, the FWC:

(a) must review all modern awards; and

(b) may make:

(i) one or more determinations varying modern awards; and

(ii) one or more modern awards; and

(iii) one or more determinations revoking modern awards; and

(c) must not review, or make a determination to vary, a default fund term of a modern award.

Note 1: Special criteria apply to changing coverage of modern awards or revoking modern awards (see sections 163 and 164).

Note 2: For reviews of default fund terms of modern awards, see Division 4A.

Variation of modern award minimum wages must be justified by work value reasons

(3) In a 4 yearly review of modern awards, the FWC may make a determination varying modern award minimum wages only if the FWC is satisfied that the variation of modern award minimum wages is justified by work value reasons.

(4) Work value reasons are reasons justifying the amount that employees should be paid for doing a particular kind of work, being reasons related to any of the following:

(a) the nature of the work;

(b) the level of skill or responsibility involved in doing the work;

(c) the conditions under which the work is done.

Each modern award to be reviewed in its own right

(5) A 4 yearly review of modern awards must be such that each modern award is reviewed in its own right. However, this does not prevent the FWC from reviewing 2 or more modern awards at the same time.”

[5] It is also necessary to consider provisions of the Act dealing with modern awards. Section 138 of the Act provides:

“138 Achieving the modern awards objective

A modern award may include terms that it is permitted to include, and must include terms that it is required to include, only to the extent necessary to achieve the modern awards objective and (to the extent applicable) the minimum wages objective.”

[6] With respect to this section, a Full Bench of the Commission has said: 3

“[38] Under s.157(1) the Commission must be satisfied that ‘a determination varying a modern award ... is necessary to achieve the modern awards objective’ (emphasis added). In Shop, Distributive and Allied Employees Association v National Retail Association (No 2) (SDA v NRA (No 2)) Tracey J considered the proper construction of s.157(1). His Honour held:

“The statutory foundation for the exercise of FWA’s power to vary modern awards is to be found in s 157(1) of the Act. The power is discretionary in nature. Its exercise is conditioned upon FWA being satisfied that the variation is “necessary” in order “to achieve the modern awards objective”. That objective is very broadly expressed: FWA must “provide a fair and relevant minimum safety net of terms and conditions” which govern employment in various industries. In determining appropriate terms and conditions regard must be had to matters such as the promotion of social inclusion through increased workforce participation and the need to promote flexible working practices.

The subsection also introduced a temporal requirement. FWA must be satisfied that it is necessary to vary the award at a time falling between the prescribed periodic reviews.

The question under this ground then becomes whether there was material before the Vice President upon which he could reasonably be satisfied that a variation to the Award was necessary, at the time at which it was made, in order to achieve the statutory objective…

In reaching my conclusion on this ground I have not overlooked the SDA’s subsidiary contention that a distinction must be drawn between that which is necessary and that which is desirable. That which is necessary must be done. That which is desirable does not carry the same imperative for action. Whilst this distinction may be accepted it must also be acknowledged that reasonable minds may differ as to whether particular action is necessary or merely desirable. It was open to the Vice President to form the opinion that a variation was necessary.”

[39] We are satisfied that s.138 is relevant to the Review. We also accept that the observations of Tracey J in SDA v NRA (No.2), as to the distinction between that which is “necessary” and that which is merely desirable, albeit in a different context, are apposite to any consideration of s.138.” [endnotes omitted]

[7] The modern awards objective in s.134 of the Act provides:

“134 The modern awards objective

What is the modern awards objective?

(1) The FWC must ensure that modern awards, together with the National Employment Standards, provide a fair and relevant minimum safety net of terms and conditions, taking into account:

(a) relative living standards and the needs of the low paid; and

(b) the need to encourage collective bargaining; and

(c) the need to promote social inclusion through increased workforce participation; and

(d) the need to promote flexible modern work practices and the efficient and productive performance of work; and

(e) the principle of equal remuneration for work of equal or comparable value; and

(f) the likely impact of any exercise of modern award powers on business, including on productivity, employment costs and the regulatory burden; and

(g) the need to ensure a simple, easy to understand, stable and sustainable modern award system for Australia that avoids unnecessary overlap of modern awards; and

(h) the likely impact of any exercise of modern award powers on employment growth, inflation and the sustainability, performance and competitiveness of the national economy.

This is the modern awards objective.

When does the modern awards objective apply?

(2) The modern awards objective applies to the performance or exercise of the FWC’s modern award powers, which are:

(a) the FWC’s functions or powers under this Part; and

(b) the FWC’s functions or powers under Part 2 6, so far as they relate to modern award minimum wages.

Note: The FWC must also take into account the objects of this Act and any other applicable provisions. For example, if the FWC is setting, varying or revoking modern award minimum wages, the minimum wages objective also applies (see section 284).”

[8] In a preliminary decision concerning the Review, a Full Bench said: 4

“[31] The modern awards objective is directed at ensuring that modern awards, together with the NES, provide a ‘fair and relevant minimum safety net of terms and conditions’ taking into account the particular considerations identified in paragraphs 134(1)(a) to (h) (the s.134 considerations). The objective is very broadly expressed. The obligation to take into account the matters set out in paragraphs 134(1)(a) to (h) means that each of these matters must be treated as a matter of significance in the decision making process. As Wilcox J said in Nestle Australia Ltd v Federal Commissioner of Taxation:

“To take a matter into account means to evaluate it and give it due weight, having regard to all other relevant factors. A matter is not taken into account by being noticed and erroneously discarded as irrelevant.”

[32] No particular primacy is attached to any of the s.134 considerations and not all of the matters identified will necessarily be relevant in the context of a particular proposal to vary a modern award.

[33] There is a degree of tension between some of the s.134(1) considerations. The Commission’s task is to balance the various s.134(1) considerations and ensure that modern awards provide a fair and relevant minimum safety net of terms and conditions. The need to balance the competing considerations in s.134(1) and the diversity in the characteristics of the employers and employees covered by different modern awards means that the application of the modern awards objective may result in different outcomes between different modern awards.

[34] Given the broadly expressed nature of the modern awards objective and the range of considerations which the Commission must take into account there may be no one set of provisions in a particular award which can be said to provide a fair and relevant safety net of terms and conditions. Different combinations or permutations of provisions may meet the modern awards objective.” [endnotes omitted]

[9] The following general observation in that Full Bench decision about the Review is relevant to the relationship between the decision to create a modern award, the historical context and the Review: 5

“[60] ... 3. The Review is broader in scope than the Transitional Review of modern awards completed in 2013. The Commission is obliged to ensure that modern awards, together with the NES, provide a fair and relevant minimum safety net taking into account, among other things, the need to ensure a ‘stable’ modern award system (s.134(1)(g)). The need for a ‘stable’ modern award system suggests that a party seeking to vary a modern award in the context of the Review must advance a merit argument in support of the proposed variation. The extent of such an argument will depend on the circumstances. Some proposed changes may be self evident and can be determined with little formality. However, where a significant change is proposed it must be supported by a submission which addresses the relevant legislative provisions and be accompanied by probative evidence properly directed to demonstrating the facts supporting the proposed variation. In conducting the Review the Commission will also have regard to the historical context applicable to each modern award and will take into account previous decisions relevant to any contested issue. The particular context in which those decisions were made will also need to be considered. Previous Full Bench decisions should generally be followed, in the absence of cogent reasons for not doing so. The Commission will proceed on the basis that prima facie the modern award being reviewed achieved the modern awards objective at the time that it was made.”

[10] During the making of the Electrical Power Award, the CEPU sought the inclusion of an electrical licence allowance of 4.5% of the standard rate. The Full Bench had before it submissions from both the CEPU and the employer representatives on the electrical licence allowance proposal. The Full Bench rejected the inclusion of the allowance as follows:

“We have rejected a union suggestion for an electrical licence allowance on the basis that such an allowance is not a common feature of the underlying awards and NAPSAs.” 6

[11] The CEPU identified the following modern awards that include an electrical licence allowance:

● the Electrical, Electronic and Communications Contracting Award 2010; 7

● the Building and Construction General On-site Award 2010; 8

● the Mining Industry Award 2010; 9

● the Port Authorities Award 2010; 10

● the Stevedoring Award 2010; 11 and

● the Hydrocarbons Industry (Upstream) Award 2010. 12

[12] The CEPU submits that an electrical licence allowance was a common feature of the pre-modern awards that applied to those electricians who became part of these modern awards. The CEPU also submits that the allowance is generally paid in recognition of the level of training and skill possessed and practised, and for the responsibilities associated with holding the licence, including supervising electrical work by non-licence holders.

[13] Of the very large number of previous industrial instruments within the scope of what is now the Manufacturing Award, the CEPU identified the following which included an electrical licence:

● the Lift Industry (Electrical and Metal Trades) Award 1973; 13

● the Metal Trades (Australian Capital Territory) Award 2000; 14

● the Metal Trades (General) Award 1966; 15 and

● the Electricians, &c. (State) Award. 16

[14] With the exception of the Metal Trades (Australian Capital Territory) Award 2000, these awards had coverage which is now distributed between a number of modern awards, and the previous instruments included significant coverage of electricians’ work in industries and occupations such as on-site construction and electrical contracting, where the relevant modern awards include a licence payment.

[15] During the making of the Manufacturing Award, the CEPU did not seek the inclusion of an electrical licence payment.

[16] The CEPU submits that it is not the industry of the employer that should determine whether or not a holder of an electrical licence is entitled to an allowance. The allowance should be paid in recognition of responsibilities or skills that are not taken in account in rates of pay. 17

[17] The CEPU relied upon evidence from a number of its members who work as electricians and also on the evidence of Mr Harris, who from 1998 to 2012 worked for “Electro Skills”, a training entity formed by the CEPU and industry partners. Mr Harris has had experience conducting examinations for the electrical licence and gave evidence concerning the relevant licence requirements.

[18] The CEPU submits that the licence adds the following value:

“Firstly, it allows work to be performed without supervision. As defined above the licence permits, “… a person who is licensed to undertake unsupervised electrical work in a jurisdiction.”

Unlicensed persons, or persons with “lesser” licences, are permitted to undertake electrical work under supervision. This is provided for by the various jurisdictional arrangements including “restricted” or fitter licences and unlicensed persons…

This indicates that one of the “value adds” which attach to an electrical licence is the capability to individually work unsupervised and supervise others. This is clearly regarded as separate from the ability to do the work as an unlicensed person may do so, under supervision.

Secondly, it allows for inspection and certification. In all Australian jurisdictions a licensed person may also inspect and/or certify electrical work or electrical installations as compliant with applicable technical and safety standards and regulations, including:

● Work they have carried out.
● Work done by others under their supervision.
● Work done by other licensed persons.

This attribute pertains to the licensed rather than the qualified worker and therefore is a “value add” accruing from holding an electrical licence.

Thirdly, it allows for design and modification. Within the scope of the licence is also the capacity to design and/or amend the design of an electrical installation prepared by another person e.g. an engineer, to meet local circumstances and/or ensure compliance with technical or safety standards.” 18

[19] Section 139 of the Act defines the terms that may be included in modern awards. In respect of allowances it provides:

“(g) allowances, including for any of the following:

(i) expenses incurred in the course of employment;
(ii) responsibilities or skills that are not taken into account in rates of pay;
(iii) disabilities associated with the performance of particular tasks or work in particular conditions or locations”.

[20] The CEPU does not argue that the allowance is in respect to disability. It also does not argue for the allowance on the basis of reimbursement of expenses. Mr Harris gave evidence that the initial charge for the allowance is less than $150 and the maintenance fee is less than $50. The CEPU argues for the allowance on the basis of “responsibilities or skills that are not taken into account in rates of pay”.

[21] The Australian Industry Group, supported by the other employer representative groups, argues that the responsibilities and skills associated with holding and using the licence are taken into account in the rates of pay for the relevant classifications in the Manufacturing Award. Evidence was given by Mr Tiller, Senior Adviser for the Australian Industry Group and Mr Jenkins, who is also currently employed by the Australian Industry Group, but who has had many years of experience in the development of the training packages for Manufacturing Skills Australia (MSA).

[22] The classification structure in the Manufacturing Award generally recognises all skills, qualifications and responsibilities. The structure allows for tradespersons to be classified from C10 to C5 depending upon their level of skill, qualification and responsibility. The award includes a number of expense- and disability-related allowances, but it includes only a few allowances which relate to skills or responsibilities that are not taken into account in rates of pay through the classification structure:

● leading hand allowance (and supervisor/trainer/coordinator- technical);

● technical computing equipment (restricted to employees in the technical field);

● first aid allowance; and

● to some extent, engine driver and fireperson allowances.

[23] The base trades level, including for electricians, was broadbanded to level C10 as part of the award restructuring process in 1989. The CEPU clarified that they were not seeking to argue in this case that the work value of the C10 base trades level for electricians had increased, or had increased relative to others at the C10 level, justifying a change to relativities. The qualification and other requirements for tradespersons specified in the Award classifications from C10 to C5 include the requirements to be an electrical/electronic tradesperson.

[24] The relevant C10 classification descriptor in the Manufacturing Award is in Schedule B.3.7:

“Engineering/Manufacturing Tradesperson—Level I

(i) An Engineering/Manufacturing Tradesperson—Level I is an employee who holds a trade certificate or tradespersons rights certificate or equivalent as an:

● Engineering Tradesperson (Electrical/Electronic)— Level I;

● Engineering Tradesperson (Mechanical)— Level I;

● Engineering Tradesperson (Fabrication)—Level I;

● Furnishing Industry Tradesperson Level I;

● Floor Finisher and/or Floor Coverer Tradesperson;

● or equivalent;

and is able to exercise the skills and knowledge of the engineering trade so as to enable the employee to perform work within the scope of this level.

(ii) An Engineering/Manufacturing Tradesperson—Level I works above and beyond an employee at the C11 level and to the level of their skills, competence and training:

● understands and applies quality control techniques;

● exercises good interpersonal and communications skills;

● exercises keyboard skills at a level higher than the C11 level;

● exercises discretion within the scope of this classification level;

● performs work under limited supervision either individually or in a team environment;

● operates lifting equipment incidental to their work;

● performs non-trade tasks incidental to their work;

● performs work which while primarily involving the skills of the employee’s trade is incidental or peripheral to the primary task and facilitates the completion of the whole task, provided that such incidental or peripheral work does not require additional formal technical training;

● inspects products and/or materials for conformity with established operational standards.”

[25] The procedure for classifying employees is found in Clause 24.3 of the Manufacturing Award. The relevant parts of that provision are as follows:

“(b) Procedure for classifying employees covered by the National Metal and Engineering Competency Standards

(i) Procedures for classifying employees under this award are set out in the National Metal and Engineering Competency Standards Implementation Guide (the Guide) distributed by Manufacturing Skills Australia “MSA” (www.mskills.com.au).

(ii) Where there is agreement to implement the competency standards at the enterprise, or in the event that the classification of an employee is called into question, the issue is to be settled by the application of competency standards in accordance with clause 24.3(b) and the National Metal and Engineering Competency Standards Implementation Guide or by reference to the minimum training requirement in the relevant classification definition, except as provided in clause 24.3(b)(iii).

(iii) Where the employee has a relevant qualification recognised as a minimum training requirement for the level at which the employee seeks to be classified and the employee is exercising or will be required to exercise the skills and knowledge gained from that qualification necessary for that level of work, the employee must be classified appropriately. It is up to the employer to demonstrate reasons for a qualification that is a recognised minimum training requirement not being regarded as relevant for an employee’s work.”

[26] The terms “or equivalent” and “work within the scope of this level” are defined in Schedule B.3.1(b) of the Manufacturing Award and are read in conjunction with the National Metal and Engineering Competency Standards Implementation Guide and the qualifications as determined by MSA:

“(i) Or equivalent means:

● any training which a registered provider (e.g. TAFE), or State recognition authority recognises as equivalent to a qualification which Manufacturing Skills Australia recognises for this level, which can include advanced standing through recognition of prior learning and/or overseas qualifications; or

● where competencies meet the requirements set out in the Manufacturing Skills Australia competency standards in accordance with the National Metal and Engineering Competency Standards Implementation Guide.

(ii) Work within the scope of this level means:

● for an employee who does not hold a qualification listed as a minimum training requirement, that the employee can apply skills within the enterprise selected in accordance with the National Metal and Engineering Competency Standards Implementation Guide, provided that the competencies selected are competency standards recognised as relevant and appropriate by Manufacturing Skills Australia and endorsed by the National Skills Standards Council; or

● where an employee has a qualification, clause 24.3(b)(iii) applies.”

[27] Mr Jenkins gave evidence that the Certificate III in Engineering—Electrical/Electronic Trade, known as MEM30405, applies to occupational titles including engineering tradesperson - electrical/electronic, electrical fitter, electrical mechanic, electrical fitter/mechanic, electrician, refrigeration mechanic and radio tradesperson. This Certificate has always been recognised by MSA as equivalent to the relevant trades qualification in the Electrotechnology Training Package UEE30811 Certificate III in Electrotechnology Electrician (UEE30811). UEE30811 is therefore recognised as an equivalent qualification for C10 Engineering Tradesperson (Electrical/Electronic) under the Award.

[28] To obtain an electrical licence, a person must:

● hold a relevant qualification recognised by the relevant State regulator. There are national consistency arrangements through the Electrical Regulatory Authorities Council;

● have at minimum period of relevant electrical wiring work experience (it is 12 months in NSW); and

● pay the relevant fee to the State regulatory agency. 19

[29] It is not suggested that the licence requirements have significantly changed in recent years. A number of years ago, the Electrical Regulatory Authorities Council decided it would no longer recognise MEM30405 as meeting the requirements for the electrical licence. However, the Electrical Regulatory Authorities Council does recognise the relevant trades qualification in UEE30811. Since the decision not to recognise MEM30405, Mr Jenkins gave evidence that MSA initiated a project for which he was responsible to ensure that the MSA qualifications met the requirements for the electrical licence.

[30] Mr Jenkins gave unchallenged evidence that:

“MSA developed the qualification MEM31215 - Certificate III in Engineering - Industrial Electrician (Release 1) to meet the licensing requirements of electrical regulators in Australia, for example capstone assessment and coverage of the Essential Performance Capabilities.

MSA recognises both MEM31215 - Certificate III in Engineering – Industrial Electrician (Release 1) (see above) and UEE30811 - Certificate III in Electrotechnology Electrician (Release 4) (which is part of the Electrotechnology Training Package) as ‘equivalent’ qualifications to MEM30405 - Certificate III in Engineering - Electrical/Electronic Trade, which is listed in the Manufacturing Award as the minimum training requirement for an Engineering/Manufacturing Tradesperson—Level I, which is classified at the C10 level.” 20

[31] The qualification MEM31215 - Certificate III in Engineering – Industrial Electrician (MEM31215) has been recognised in Western Australia as meeting the requirements for the electrical licence. However, it is not necessary to decide if that qualification will be recognised in other States, as most electricians Australia-wide complete the UEE30811 qualification. This qualification is recognised as “or equivalent” and as meeting the requirements for the C10 classification in the Award. As noted earlier, the CEPU does not argue in this case that the qualification and work of an electrical tradesperson at C10 has a higher and changed work value than when the relativities were reviewed in 1989.

[32] We are satisfied that the skills, qualifications and responsibilities associated with the requirements for an electrical licence are recognised in the Award classifications at C10 to C5. We accept the evidence of Mr Jenkins: 21

“There are several areas of work where various forms of licences and regulatory tickets are required for the performance of work. Examples are licences for electrical mechanics, licences for forklift driving, licences for users and operators of high risk equipment such as crane drivers, riggers, dogmen etc. In all cases the parties have agreed that the gaining of the licence is to be included as part of the metal and engineering competency standards as either a part of an existing unit of competency or through insertion of a new unit of competency. The most recent example I am familiar with was when licencing bodies introduced new licencing requirements for users and operators of high risk equipment. This required a review by the parties of these requirements. I recall this having occurred around 2012 and 2013. During this time I was engaged by MSA as a consultant to implement any changes to the Metal and Engineering Competency Standards that would be required as a result of these negotiations between the parties. I attended meetings of Ai Group and AMWU officials and recorded the agreements as to how particular licence requirements were to be addressed in the competency standards.”

[33] The classification definitions when read in conjunction with the definitions of “or equivalent” and “work within the scope of this level” clearly cover a range of responsibilities in addition to the holding of the relevant qualification.

[34] To be classified at C10, it is necessary not just to hold the relevant qualification, but also to be able to “exercise the skills and knowledge of the engineering trade so as to enable the employee to perform work within the scope of this level”. The definition of work within the scope of this level for a tradesperson refers to Clause 24.3(b)(iii) and this provides that the employee will be “exercising or will be required to exercise the skills and knowledge gained from that qualification necessary for that level of work”. As discussed earlier, the qualification meets the requirements for the licence, except for the experience requirement. There is nothing that prevents an experienced tradesperson being classified in the range C10 to C5, depending upon their competencies and qualifications. The definition at C10 also includes a range of responsibilities including “exercises discretion within the scope of this classification level” and “performs work under limited supervision either individually or in a team environment”.

[35] The CEPU referred to Section 2.9 of the Competency Standards Implementation Guide, which provides:

“Whenever there are licensing and or statutory requirements covering certain work, any legal obligation will need to be met by the employee and or the employer, in addition to the competencies described in the competency standards.”

[36] The CEPU submitted that this meant that the licence requirement was an additional requirement to that contemplated by the competency standards and the classification requirements. We accept the evidence of Mr Tiller and Mr Jenkins that the relevant competency standards specifically refer to the need to meet the licence requirements to achieve the relevant competency standards. Competency standards are about the use of skills and capacity to use skills. If the licence is a necessary requirement before a skill can be exercised, then the holding of the licence needs to be a part of the competency standard requirement. We are satisfied that the classification definitions and the competency standards include the requirement to hold relevant licences.

[37] We are satisfied that the possession of the electrical licence issued by the appropriate regulator is taken into account by the minimum training requirement and the other requirements of the classification definitions for the classifications at C10 to C5. The allowance claimed is therefore not for “responsibilities or skills that are not taken into account in rates of pay”. There is no basis for the inclusion of the electrical licence allowance in the Manufacturing Award.

[38] Similar considerations apply in respect to the Electrical Power Award. The base trade classification, Technical Grade 3, is defined to cover “an employee who has Certificate III qualifications and/or other structured training to enable the employee to perform a broader range of duties which may include basic design work”. However, in the case of the Electrical Power Award, it is not necessary to consider the classification structure in detail, as we are satisfied that the CEPU have not established a sufficient case to change the earlier Full Bench decision in making that award. The CEPU did not argue that there had been significant changes affecting consideration of the licence allowance since the making of the modern award. We adopt the approach in the preliminary Full Bench decision about the Review:

“However, where a significant change is proposed it must be supported by a submission which addresses the relevant legislative provisions and be accompanied by probative evidence properly directed to demonstrating the facts supporting the proposed variation. In conducting the Review the Commission will also have regard to the historical context applicable to each modern award and will take into account previous decisions relevant to any contested issue. The particular context in which those decisions were made will also need to be considered. Previous Full Bench decisions should generally be followed, in the absence of cogent reasons for not doing so. The Commission will proceed on the basis that prima facie the modern award being reviewed achieved the modern awards objective at the time that it was made.” 22

[39] We are satisfied that the proposal to introduce the allowance is a significant change. The making of the Electrical Power Award involved a previous decision on this contested issue. We proceed on the basis that modern awards objective was achieved in the decision not to include the allowance. We are not satisfied that the CEPU have established a cogent reason for changing this position.

Conclusion

[40] We will not make the variations sought by the CEPU to include an electrical licence allowance in the Electrical Power Award and the Manufacturing Award.

SENIOR DEPUTY PRESIDENT

Appearances:

G Noble for the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia.

M Rizzo for the Australian Municipal, Administrative, Clerical and Services Union.

S Smith and G Vaccaro for The Australian Industry Group.

J O’Dwyer for Master Electricians Australia.

K Thomson, solicitor, for Australian Business Industrial, the New South Wales Business Chamber and Business SA.

E Baxter, solicitor, for Ausgrid, Endeavour Energy and Essential Energy.

Hearing details:

Sydney.

2016.

February 9.

 1   MA000088.

 2   MA000010.

 3   [2014] FWCFB 1788.

 4   Ibid.

 5   Ibid.

 6   [2009] AIRCFB 826 [71].

 7   MA000025.

 8   MA000020.

 9   MA000011.

 10   MA000051.

 11   MA000053.

 12   MA000062.

 13   AN160193.

 14   AP787983.

 15   AN160206.

 16   AN120192.

 17   Fair Work Act 2009 s.139(g)(ii).

 18   CEPU further submissions, 6 November 2015.

 19   See, e.g. exhibit CEPU1 [5].

 20   Exhibit AiG1 [24]-[25].

 21   Ibid [20].

 22   [2014] FWCFB 1788 [60].

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