FWA update, 28/04/10


FWA update, 28/04/10

Award modernisation – former state awards etc; Union bid for public relations industry award; Pay Equity application – timetable; Out of time applications – unfair dismissals; Preferred Hours clause – comment.


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Award modernisation - former state awards etc; Union bid for public relations industry award; Pay Equity application - timetable; Out of time applications - unfair dismissals; Preferred Hours clause - comment.
Award modernisation – former state awards etc

On 23 April, the President of Fair Work Australia, Justice Giudice, issued two statements concerning further steps in award modernisation.
The first statement concerns a detailed process for terminating former State awards, which will terminate on 1 January 2011.
The second statement concerns a process, by submissions, for the review and termination of various “modernisable instruments”. Modernisable instruments are award-based transitional instruments and transitional Australian Pay and Classification Scales (APCSs). In turn, “award-based transitional instruments” are defined as awards, State reference transitional awards or common rules, and notional agreements preserving State awards.”
See the dedicated award modernisation page set-up by Fair Work Australia.
Union bid for public relations industry award
A Full Bench of Fair Work Australia will sit on 29 April in Melbourne, to hear a union application, to make a new modern award for the public relations industry.
Employers are opposing the application arguing that the matter had effectively been dealt with during award modernisation proceedings, and that unless there is new evidence provided by the union which would satisfy the modern award objectives, the Tribunal should not exercise its discretion to create a new modern award outside of the 4 year review process.
Pay Equity application – timetable
On 22 April the Commonwealth, State Governments, various community organisations and employers appeared at the mention hearing, with unions indicating that the pay equity case will run from the middle of the year to September/October.
The unions foreshadowed providing evidence, data, expert reports and requesting the Tribunal to conduct views around the country in support of their claim that there is a lack of equal remuneration for work of equal or comparable value in the sector.

The Full Bench will establish a dedicated website for the case and will shortly issue directions.

Outof time applications– unfair dismissals
Recent decisions from Fair Work Australia have highlighted the extent to which some members of the Tribunal are prepared to exercise their discretion in dealing with out of time unfair dismissal applications that come before them.
In one recent decision the Tribunal member was prepared to grant an extension of time application in an unfair dismissal matter even though the application was lodged almost 8 months after the termination occurred, and the employee had obtained legal advice in the interim about a workers’ compensation claim. The decision concluded, “There are many other persons in a like position to that of the applicant and the underlying rationale behind the unfair dismissal jurisdiction, namely a “fair go all round,” would be rendered illusory if the prima facie position of requiring compliance with the timelines in the Act was applied too strictly.”
Preferred Hours clause – comment
Two appeals, one involving Bupa Care Services and National Retail Association (NRA) have been decided by Fair Work Australia concerning the validity of ‘preferred hours’ clauses in agreements which have been accepted in individual and collective agreements since 1996.
The Australian Chamber of Commerce and Industry has noted:
‘These clauses allow an employee to elect their preferred hours of work based on personal and family reasons and forego penalties and loadings for working outside of the span of hours in an award. The practical effect in most cases is that these employees are offered additional shifts of work they would not ordinary receive. The appeals also raised significant issues concerning the ability for an employer to provide written undertakings to the tribunal, where the tribunal has concerns with the proposed agreement may not pass the relevant test.
On Thursday 15 April, the Full Bench ruled that both decisions should be overturned because they did not afford a real opportunity for the employers to provide undertakings that they would not apply the clauses. This is a significant win for the employer network, as ACCI has long supported the ability for undertakings to be provided. Notwithstanding, ACCI is concerned that the Full Bench, in deciding the issue, has effectively deemed preferred hours clauses as a ‘financial detriment’, as compared against the relevant award.
This black and white interpretation of the No-Disadvantage test means that preferred hours clauses in enterprise agreements, despite the wishes of employers and employees, may not be accepted by the Tribunal in the future. As a result of the decision, it is also seriously questionable whether an Individual Flexibility Arrangement (IFA) would be able to vary the effect of overtime (or other penalties) under an award or agreement, as promised by the Government. In ACCI’s view, the Full Bench decision undermines this promised flexibility, contrary to the intention of Parliament and ACCI will now write to the Government seeking assurances that IFAs can be used and if necessary, that the legislation is amended to achieve this outcome.’
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