Traffic Management Association of Australia [2016] FWC 2219 (10 June 2016) [2016] FWC 2219 FAIR WORK COMMISSION STATEMENT Fair Work Act 2009 s.156 - 4 yearly review of modern awards Traffic Management Association of Australia (AM2014/195) SENIOR DEPUTY PRESIDENT WATSON MELBOURNE, 12 APRIL 2016 Application to make a new modern award - proposed Traffic Management Controllers Award. [1] On 15 August 2014, the Traffic Management Association of Australia (TMAA) filed an application to make a new modern award – the proposed Traffic Management Controllers Award (the Award) to cover employees performing traffic management duties. [2] To date the matter has progressed through: ● The filing of a proposed draft Award by the TMAA on 22 December 2014; ● Submissions by other interested parties directed to the TMAA setting out issues to be addressed in submissions by the TMAA in February and March 2015; ● The filing of submissions in support of the making of the Award by the TMAA on 9 April 2015; ● A process of consultation between the TMAA and other interested parties between May and December 2015; and ● The filing of an amended proposed draft Award by the TMAA on 30 March 2016. [3] The matter was brought on for mention on 7 April 2016. The mention hearing was attended by representatives of the TMAA, the Construction, Forestry, Mining and Energy Union (CFMEU), United Voice, The Australian Workers’ Union (AWU), the Master Builders Australia (MBA), the Australian Industry Group (AiG), the Housing Industry Association (HIA), and Australian Business Industrial and the NSW Business Chamber Ltd (jointly ABI). On 5 April 2016, the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) (AMWU) filed correspondence setting out its position. [4] In the mention hearing the CFMEU, AWU, United Voice, and MBA opposed the making of a new Award. The AiG and ABI indicated that their position as to the making of a new Award was dependant on a consideration of its terms and conditions. The HIA indicated that some progress had been made in discussions with the TMAA about coverage of a new Award and other matters, but at this stage it opposed the making of the new Award. The position of the AMWU is not clear from its correspondence but seems to reflect that of the AiG and ABI. [5] During the mention submissions were sought in relation to: 1. Whether the making of a new Award to cover employees performing traffic management duties, including the issue of s.163 of the Fair Work Act 2009 (the Act), should be dealt with and determined as a threshold issue or whether the making of a new Award and its terms should be dealt with and determined at the same time; 2. The utility and timing of conciliation. 3. A program for the filing of submissions (additional submissions in the case of the TMAA) and evidence, under either scenario in point 1. Whether the making of a new Award to cover employees performing traffic management duties should be dealt with and determined as a threshold issue or whether the making of a new Award and its terms should be dealt with and determined at the same time [6] Having regard to the current positions of the parties, the determination of the application should be dealt with in two stages: ● Whether a new Award to cover employees performing traffic management duties should be made; and ● If the Commission decided that a new Award should be made, the terms and conditions of the Award. [7] Such a course of action appears to me to be the most efficient way to proceed because the requirement on the parties to file submissions and evidence in relation to the terms and conditions and the requirement of the Fair Work Commission (the Commission) to hear and determine the matter as a whole would impose a significant burden on the TMAA and the interested parties and on the Commission which would be for no purpose in the event that the Commission determined that a new Award to cover employees performing traffic management duties should not be made. [8] The determination of the threshold issue (and any prior discussions between the parties or conciliation on the issue) would be informed by the submissions filed by the TMAA on 9 April 2015 and its amended proposed draft Award filed on 30 March 2016. [9] The two stage approach will be reviewed by the Commission in the event that developments from the conciliation process and/or changed positions of the parties in the conciliation suggest that a different approach is preferable. The utility and timing of conciliation [10] Although the CFMEU, AWU and United Voice expressed reservations about the utility of conciliation, I think that some purpose will be served by conciliation prior to the filing of any further materials by any party. [11] The matter will be referred to Deputy President Gostencnik for conciliation. Whilst it is a matter for Deputy President Gostencnik, my view is that the conciliation should occur, in person rather than by video, and in Sydney, given nearly all interested parties are Sydney based. Deputy President Gostencnik will list the matter for conference in due course. [12] The conciliation will commence by dealing with the threshold issue – whether a new Award should be made. If the conciliation proceeds to deal with the terms and conditions of a new Award will be a matter for Deputy President Gostencnik, depending on whether he believes any purpose is served by doing so, having regard to the outcome of the conciliation of the threshold issue and the views of the parties in the conciliation as to the utility of further conciliation. A program for the filing of submissions and evidence [13] Given my conclusions in respect of the staging of the determination of the TMAA application and conciliation above, I think the best course is for conciliation to precede the filing of any submissions and evidence (if and as required following conciliation). [14] Upon the conclusion of the conciliation process, directions for the filing of submissions and evidence will be made by the Commission and the matter will be referred to the President to constitute a Full Bench to determine the issues which require determination or approval. [15] Unless the outcome of the conciliation and the views of the parties expressed to Deputy President Gostencnik suggest otherwise, the directions at that stage would be directed to the filing of further submissions and evidence in relation to the threshold issue – whether a new Award should be made. [16] The views of the parties at the mention on 7 April 2016 suggested a timetable for the filing of materials, in respect of the threshold matter, of three weeks for the TMAA to file additional submissions and evidence, with submissions and evidence in response to be filed by other interested parties six weeks later. However, the directions made following conciliation would have regard to the outcome of the conciliation, the scope of outstanding issues, the preferred process for determining the outstanding issues and the position of the parties as to a timetable expressed to Deputy President Gostencnik at that time. SENIOR DEPUTY PRESIDENT Printed by authority of the Commonwealth Government Printer <Price code A, PR578861>