[2010] FWAFB 443
FAIR WORK AUSTRALIA
DECISION
Workplace Relations Act 1996
s.576H—Commission may vary modern awards
Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch 5, Item 14—Variation of modern award
“Automotive, Food, Metals, Engineering, Printing and Kindred Industries
Union” known as the Australian Manufacturing Workers' Union(AMWU)
(AM2009/124)
SURVEYING AWARD 2010
[MA000066]
JUSTICE GIUDICE, PRESIDENT
VICE PRESIDENT LAWLER
VICE PRESIDENT WATSON
SENIOR DEPUTY PRESIDENT WATSON
SENIOR DEPUTY PRESIDENT HARRISON
SENIOR DEPUTY PRESIDENT ACTON
COMMISSIONER SMITH
MELBOURNE, 25 FEBRUARY 2010
[1]
This decision concerns an application by the “Automotive, Food, Metals, Engineering,
Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’
Union (AMWU) to add its name to the definition of union in cl.3.1 of the Surveying Award
2010.1 In addition, the AMWU seeks a number of amendments to the classification
definitions.
[2]
The application was made pursuant to s.576H of the Workplace Relations Act 1996
and was not determined by 31 December 2009. The application will be determined by Fair
Work Australia pursuant to item 14 of Schedule 5 to the Fair Work (Transitional Provisions
and Consequential Amendments) Act 2009.2
[3]
Both the Australian Federation of Employers and Industries (AFEI) and the Spatial
Industries Business Association Ltd (SIBA) oppose the addition of the AMWU to the
definition of union and draw attention to the general approach of the Commission in not
naming organisations in modern awards. The AWMU, whilst seeking to be named, also draws
attention to this approach.
[4]
With one exception, AFEI does not oppose the amendments to the classification
definitions. The exception is the proposal by AMWU to use the word “equivalent” rather than
“has the equivalent”. SIBA makes no submission on this point but urges the adoption of its
classification definitions which it put prior to the making of the modern award.
[5]
We deal firstly with the submission that AMWU should be included in the definition
of union. It is true that we had departed from our usual practice given what we understood to
be the history of the award. However it is now clear that our general approach should be
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[2010] FWA 443
maintained. We will delete the definition of union and make the necessary consequential
amendments to cl.8.3(c). The clause will be as follows:
“(c)
If there are employees of the enterprise covered by this award who are
members of a union, the employer must inform the union/s of the intention to
use the facilitative provision and the union/s must be given a reasonable
opportunity to participate in negotiations regarding its use. Union involvement
in this process does not mean that the consent of the union is required prior to
the introduction of agreed facilitative arrangements at the enterprise.”
[6]
This approach is consistent with that which we adopted in the Manufacturing and
Associated Industries and Occupations Award 2010.3
[7]
We next consider the matter of classification definitions.
[8]
In the Full Bench’s decision of 4 September 2009 we stated:
“[254] The final matter relates to classification descriptions and wage rates. As to
wage rates, the Spatial Industries Business Association proposed higher rates than
those currently in the exposure draft. Whilst we appreciate the reasons for the
proposal, we prefer the assessment we have made in relation to properly fixed
minimum wages. Turning to the classification structure, there is a difference of view
as to the role qualifications should play in the structure. It appears to us that there is a
genuine desire to review the classification definitions but this will require more time.
Accordingly we have retained the structure in the exposure draft as it has been drawn
from existing instruments. If at some time in the future the discussion between
interested parties results in new definitions an appropriate application can be made.”4
[9]
It appears to us that the application by the AMWU seeks to amend the provisions we
adopted to make them consistent with the definitions upon which we drew. That is a sensible
course.
[10] We reiterate what we said on 4 September 2009, but in the meantime we will make the
variations sought by the AMWU until proper and more detailed consideration can be given to
those definitions by the relevant parties.
PRESIDENT
** end of text **
1
MA000066.
Schedule 5 was modified by the Fair Work Legislation Amendment Regulations 2009 (No.2) on 14 December 2009.
3 MA000010.
4 [2009] AIRCFB 826 at para 254.
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