4 yearly review of modern awards – Proposed Norfolk Island Award [2018] FWC 4013

1 Fair Work Act 2009 s.156 - 4 yearly review of modern awards 4 yearly review of modern awards – Proposed Norfolk Island Award (AM2018/8) JUSTICE ROSS, PRESIDENT MELBOURNE, 11 JULY 2018 4 yearly review of modern awards – proposed Norfolk Island Award. [1] This Statement concerns an application1 made on 30 June 2018 by the New South Wales Business Chamber (NSWBC) seeking: a) the making of a modern award for private sector employers operating a business on Norfolk Island and their employees working on Norfolk Island; or b) in the alternative, the variation of approximately 73 modern awards to insert transitional provisions in relation to certain modern award requirements such as minimum wages and penalty rates, and to provide for minimum engagement periods of one hour. [2] A mention2 was held on 5 July 2018 and attended by the following parties:  Australian Council of Trade Unions;  Australian Hotels Association;  Australian Services Union (National);  Australian Services Union (United Services Branch);  “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU);  Construction, Forestry, Maritime, Mining and Energy Union (Construction and General Division);  Local Government and Shires Association;  NSWBC; and  Norfolk Island Chamber of Commerce Inc. (Norfolk Chamber). [3] This Statement also concerns an application made by the NSWBC (in conjunction with the Norfolk Chamber) at the mention on 5 July 2018, for the Commission to make an interim award until the Commission can hear and make a full and final determination of the matter.3 1 Application, 30 June 2018. 2 Transcript, 5 July 2018. 3 Email correspondence from Australian Business Lawyers & Advisors (ABL) with attached proposed Norfolk Island Interim Award 2018 and unsworn affidavit of Cherri Buffet, 5 July 2018. [2018] FWC 4013 STATEMENT -- 1 of 3 -- 2 [4] As foreshadowed at the mention, a document will shortly be published on the Commission’s website to provide background information on the Norfolk Island reform process in relation to workplace relations. [5] At the mention, the Commission issued Directions requiring the Applicants to file submissions and materials in support of the making of an interim award by 4pm Monday 9 July 2018.4 Submissions were filed on behalf of the NSWBC and the Norfolk Chamber on that date, together with supporting material including a further affidavit sworn by Cherri Buffett, President of the Norfolk Chamber.5 [6] The Applicants’ submissions briefly address whether s.154 of the Fair Work Act 2009 (Cth) (Act) applies to this matter, as follows: ‘51. It may be questioned whether or not section 154 has any application in this matter. 52. In our submission, on a proper reading, it does not. 53. Section 154 must be understood in terms of its language. The opening words of section 154 (1) are: “A modern award must not include terms and conditions of employment …” 54. The notion of terms and conditions of employment should be understood as the terms and conditions that establish benefits, obligations and rights for employers and employees and as such should be seen as distinct from the notion of “coverage terms” that section 143 is concerned with. 55. In any event, the interim award’s “coverage term” is not determined or expressed in a way that could be said to offend section 154.’6 [Footnotes omitted] [7] The Territory of Norfolk Island is described in Schedule 1 to the Norfolk Island Act 1979 (Cth). I note that subject to various exclusions, the proposed interim award is expressed to cover ‘private sector employers operating a business on Norfolk Island’ and their employees working on Norfolk Island, where ‘Norfolk Island’ is defined as ‘the land mass known as Norfolk Island as [sic] is not a reference to the Territory of Norfolk Island’.7 [8] A mention is listed for tomorrow, Thursday 12 July 2018 at 1:00pm for the programming of this matter. [9] I ask all parties to give further consideration to the application of s.154 of the Act to the proposed interim award, for discussion at the mention. I will seek the parties’ views as to whether this issue should be determined as a threshold jurisdictional issue before any consideration of the merits of the application for an interim award. 4 Transcript, 5 July 2018 at PN [95]. 5 Applicants’ submissions, 9 July 2018. 6 Ibid, paragraphs [51] – [55]. 7 Proposed Norfolk Island Interim Award 2018 (lodged on 9 July 2018), cll.3 and 4.1(a). -- 2 of 3 -- 3 [10] I observe that two substantively different versions of the interim award have been lodged with the Commission: one on 5 July 2018 and the second as attached to the Applicants’ submissions of 9 July 2018. This fact was not made apparent in the Applicants’ submissions. At the mention, the Applicants will be asked to identify which version of the interim award they seek to be made by the Commission. [11] Finally, the Applicants have indicated that the applications are made under s.156 of the Act. I note that the Commission must be constituted by a Full Bench to conduct 4 yearly reviews of modern awards and to make modern awards in a 4 yearly review.8 [12] At the mention on 5 July 2018, I observed that the applications may not need to be dealt with under s.156, and sought clarification from the Applicants as to whether the Commission has separate power to make a new modern award outside of the 4 yearly review process. This power is found in s.157(1)(b) of the Act, and must also be exercised by a Full Bench of the Commission.9 [13] I will seek confirmation from the Applicants at the mention as to the basis on which the applications are made. Whether made pursuant to s.156 or s.157 of the Act, I propose following the mention to refer this matter to a Full Bench of the Commission for determination. PRESIDENT Printed by authority of the Commonwealth Government Printer <PR608793> 8 Fair Work Act 2009 (Cth), ss.156(1), 616(1) and (2). 9 Fair Work Act 2009 (Cth) s.616(1). -- 3 of 3 --