| [2019] FWC 8159 |
| FAIR WORK COMMISSION |
STATEMENT |
Fair Work Act 2009
s.157 – FWC may vary etc modern awards if necessary to achieve modern awards objective
Review of certain C14 rates in modern awards
(C2019/5259)
JUSTICE ROSS, PRESIDENT |
MELBOURNE, 2 DECEMBER 2019 |
Review of the rates at the C14 rate in modern awards – introductory rates – referral to a Full Bench.
[1] This statement concerns the review of modern awards which have classification rates at the C14 level which are either not transitional rates or where the transition period is not specified. The background to this issue is set out in a Statement 1 dated 28 August 2019 (the August 2019 Statement).
[2] The August 2019 Statement referred to an extract from the 2018-19 AWR decision 2 which noted that some 45 modern awards include a rate of pay at the C14 rate (currently $740.80 per week). In the August 2019 Statement these 45 modern awards were divided into 5 categories and I expressed the provisional view that the 14 awards in two of those categories ((iv) and (v)) be referred to a Full Bench for review. A list of the 14 modern awards proposed for review is set out at Attachment 1. In such a review the Full Bench would consider whether the C14 classifications in each of these awards provides a fair and relevant safety net of terms and conditions.
[3] Interested parties were invited to comment on the following matters:
1. The provisional view at [5] of the August 2019 Statement.
2. Whether the list of awards identified in categories (iv) and (v) above (at [5] of the August 2019 Statement) is an accurate list of the modern awards in each of these categories.
3. In relation to the 8 modern awards listed in category (iv) – i.e. those which do not appear to specify a particular transition period – what transition period does the interested party propose?
4. In relation to the 6 modern awards listed in category (v) – i.e. those in which the C14 classification level is not a transitional level – do the C14 classification levels in these awards provide a fair and relevant safety net? Has there been any work value determination of these classifications?
[4] The following submissions were filed:
• United Voice – 26 September 2019
• Australian Federation of Air Pilots – 27 September 2019
• ABI and NSWBC – 27 September 2019
• Australasian Meat Industry Employees Union – 27 September 2019
• The Australian Workers’ Union – 27 September 2019
• CFMMEU – Manufacturing Division – 27 September 2019
• Australian Industry Group – 27 September 2019
• Australian Manufacturing Workers’ Union – 3 October 2019
[5] This matter was the subject of a conference on 8 October 2019. A link to the transcript of the conference is here.
[6] A further Statement was issued on 17 October 2019. 3 The following submissions were filed in response to that Statement:
• Ai Group – 11 November 2019
• AFEI – 18 November 2019
• ABI – 19 November 2019
[7] A further Statement was issued on 25 November 2019 4 and a conference was held on 29 November 2019. A link to the Transcript of the conference is here. Arising out of discussion at the conference the next steps are as follows:
1. The unions will make applications to vary the awards set out at Attachment 1 in the manner they propose.
Note: The MEAA indicated 5 that it would not be seeking to vary the Broadcasting, Recorded Entertainment and Cinemas Award 2010 on the basis that the award does not have employee classifications at the grade 1 (C14) level. The CFMMEU – MUA Division indicated6 that it would not be seeking to vary the Port Authorities Award 2010 or the Stevedoring Industry Award 2010 on the basis that the awards ‘are in sufficient terms.’ The CFMMEU – MUA Division confirmed its position in correspondence dated 29 November 2019.
2. The ACTU will coordinate the unions’ application process and advise my chambers (by email to chambers.ross.j@fwc.gov.au) when that process is complete.
3. A further conference will be convened after the ACTU has advised that the application process is complete.
4. After all of the relevant applications have been filed the Commission will prepare a background paper setting out the following information in relation to each contested application:
(i) The pre modern awards which informed the making of the current modern award.
(ii) A comparison between the classification structure in the modern award and the relevant pre modern awards.
(iii) Whether there had been any recent work value assessments in respect of any of the relevant pre modern awards.
[8] There are three final matters.
[9] First, the MEAA is asked to confirm their position in relation to the award referred to in point 1 at [7] above, by no later than 4:00 pm Friday 20 December 2019.
[10] Second, the ACTU has foreshadowed a request that the Commission obtain statistical data from the EEH survey as to the number of award reliant employees in receipt of C14 level wages in the awards which are to be the subject of the union applications. 7 The ACTU is to put its request in writing, setting out precisely what is being sought, by no later than 4:00 pm Friday 20 December 2019.
[11] Finally, the parties are encouraged to have direct bilateral discussions in an effort to reach agreement as to the form of variation determination. Any request for Commission assistance in respect of that process are to be sent to chambers.ross.j@fwc.gov.au
PRESIDENT
Printed by authority of the Commonwealth Government Printer
<PR714772>
Attachment 1
Category (iv)
8 modern awards in which the C14 classification appears to be transitional but no particular transition period is specified.
• Cement and Lime Award 2010 (A level 1 employee is paid at the NMW (cl. 14.1) Schedule B.1 describes a level 1 employee as ‘entry level’ and ‘undertaking basic competency training’);
• Concrete Products Award 2010 (A level 1 employee is paid at the NMW (cl. 15.1). Schedule B.1.1 refers to undertaking the employers induction program refers to the ‘employer’s induction program’);
• Meat Industry Award 2010 (An MI1 employee is paid at the NMW (cl. 19.1). Schedule B.3.1 refers to an employee at this level ‘undergoing on-the-job training for an initial period of at least three months’);
• Oil Refining and Manufacturing Award 2010 (A Lubricants/bitumen plants and terminals trainee (level 1) is paid at the NMW (cl. 14.1) Schedule B.1.4 describes this as an employee undergoing the necessary orientation and training to enable safe and efficient performance as an operator);
• Port Authorities Award 2010 (A level 1 employee is paid at the NMW (cl. 13.1). Schedule B.1 describes an employee at this level as having ‘completed induction’);
• Quarrying Award 2010 (A grade 1 employee is paid at the NMW (cl 17.) Schedule B describes an employee ‘undertaking training to become competent’);
• Rail Industry Award 2010 (An Operations level 1 employee is paid at the NMW (cl. 14.1) Schedule A says that employees at this level ‘undertake and successfully complete standard induction training’) and
• Stevedoring Industry Award 2010 (A Grade 1 employee is paid at the NMW (cl. 13.1). Schedule B describes an employee at this level as someone ‘who is undergoing induction and initial training prior to appointment as a stevedoring employee Grade 2’).
Category (v)
6 modern awards in which the C14 classification level is not a transitional level.
• Air Pilots Award 2010 (First officers and second pilots of Single engine UTBNI 1360 kg and Single engine 1360 kg-3359 kg are paid at the NMW (Schedule B.1.1). An aerial Application Pilot with less than 1000 hours of flying experience is also paid at the NMW (Schedule D.9.1). It is noted that there additions to salary in B.1.3, B.1.4 and D.9.5 which may mean that employees receive an amount greater than the NMW);
• Broadcasting, Recorded Entertainment and Cinemas Award 2010 (A Grade 1 employee is paid at the NMW (cl. 14.3). Clause 14.2(a) suggests that there may not be any employees paid at this rate under the award);
• Dry Cleaning and Laundry Industry Award 2010 (A Dry cleaning employee level 1 is paid at the NMW level (cl. 14.1(a));
• Funeral Industry Award 2010 (A grade 1 employee is paid at the NMW level (cl. 14.1);
• Sugar Industry Award 2010 (The C14/L2-milling general operator is paid at the NMW level (cl. 40.1). The BT1 rate (cl. 42.1) applies to ‘new starters’ who undertake a 3 month probation period) and
• Travelling Shows Award 2010 (A Grade 1 employee is paid at the NMW).
2 [2019] FWCFB 3500 at [335] – [342]
5 Transcript 29 November 2019 at [66]
6 Transcript 29 November 2019 at [118]