STATE REFERENCE PUBLIC SECTOR TRANSITIONAL AWARDS
As part of the award modernisation process Fair Work Australia (FWA) is required to terminate any awards that have been replaced by a modern award. The exception to this is when the award is either:
(a) an enterprise instrument (for example, an award that only applies to one employer or, two or more employers that are under a franchise arrangement); or
(b) a State Reference Public Sector transitional award.
There are a number of awards that are specific to Tasmanian Local Councils which meet the definition of a State Reference Public Sector transitional award. These are:
Local Governing Authorities Tasmania (Superannuation) Award 1989
- Local Government (Community Services) Tasmania Award 2002
- Municipal Employees (Country Councils - Tasmania) Award 2003
- Municipal Managers (Tasmania) Award 2003
- Municipal Officers (Tasmania) Award 2002
The City Councils (e.g. Hobart City Council, Clarence City Council, Glenorchy City Council and Launceston City Council) will continue to operate under their enterprise awards whether or not they are constitutional corporations.
Local Government (Community Services) Tasmania Award 2002 (link is http://www.fwa.gov.au/consolidated_awards/at/at815537/asframe.html)
Municipal Employees (Country Councils - Tasmania) Award 2003 (link is http://www.fwa.gov.au/consolidated_awards/at/at825465/asframe.html)
Municipal Managers (Tasmania) Award 2003 (link is http://www.fwa.gov.au/consolidated_awards/at/at824102/asframe.html)
Municipal Officers (Tasmania) Award 2002 (link is http://www.fwa.gov.au/consolidated_awards/at/at815609/asframe.html)
Local Governing Authorities Tasmania (Superannuation) Award 1989 (link is http://www.fwa.gov.au/consolidated_awards/at/at787038/asframe.html)
Award Modernisation Background
- The Fair Work Act commenced operation on 1 July 2009.
- The Act continued the award modernisation process begun under WorkChoices. Under this process, on 24 September 2009 the Australian Industrial Relations Commission (now Fair Work Australia) made a national Local Government Modern Award.
- To genuinely be in the Federal system an employer must be a constitutional corporation - either a financial or a trading corporation. Based on current case law, it is unlikely any Tasmanian Council would qualify as a national system employer by virtue of being a trading corporation.
- A modern National Local Government Award has been developed but does not apply to Tasmanian Councils because they do not qualify as a national system employer (as per paragraph above).
- The way that Tasmanian Councils have been captured in the Federal industrial relations system is that from 1 January 2010, the State referred its industrial relations powers, including those relating to Local Government, to the Commonwealth Parliament. As a result the existing Tasmanian Local Government awards and the enterprise awards applying to a limited number of Tasmanian Councils continue to apply as transitional awards.
- This means that in future a State reference award modernisation process specified in the Federal legislation will now apply to the Tasmanian Local Government awards.
- Under this process, applications can be made to Fair Work Australia (FWA) to either terminate or modernise a State Reference Public Sector Transitional Award which is in place. Termination or modernisation would mean the current awards (ME Country Councils, MO Tasmania, MO Managers) would no longer apply. Applications must be lodged by 31 December 2013.
- Termination of the current awards would see the Councils move under the national Local Government Modern Award. Modernisation would likely result in creation of a specific Tasmanian Local Government Modern Award. If neither action is taken, then the current awards continue to have effect until expiry until 2013 at which time FWA would determine the relevant award to apply. It is almost certain this would be the national Local Government Modern Award.
- A small number of Councils currently have enterprise awards (applying as transitionary instruments). These could also be terminated or modernised via application. Enterprise awards may not be sustainable in the long run with the ability to modernise them subject to demonstrating to FWA that there is sound reason to do so. This may not be possible if, for example, there was a Tasmanian Local Government Modern Award in play.