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

Australian Municipal, Administrative, Clerical and Services Union

New South Wales Local Government Clerical, Administrative, Energy, Airlines and Utilities Union

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.

[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 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.

[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.

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) 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.

(ii) state the date on which the arrangement commences;

(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;

(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.

(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.

[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:

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.

[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:

[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.

[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.

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