Today the Fair Work Commission handed down its long awaited decision on Modern Award coverage for Tabcorp employees.
You will recall that the ASU had applied to have the Tabcorp Wagering Employees Award 2003 made into a Modern Award – effectively meaning the current Award would continue to apply as the safety net of Award conditions at Tabcorp.
The ASU argued that if the Fair Work Commission was not inclined to agree to make the Tabcorp Wagering Employees Award 2003 into a Modern Award then the most appropriate Award would be the Clerks Award. Tabcorp on the other hand did not want either the Tabcorp Wagering Employees Award 2003 or the Clerks Award to apply – they argued the Retail Award was the most appropriate Award because Operators were essentially selling a product.
In handing down a 48 page written decision, the Fair Work Commission full bench has not been persuaded to make the Tabcorp Wagering Employees Award 2003 into a Modern Award. Instead they have indicated that the Clerks Award is a more appropriate Award for employees undertaking work in the Wagering arm of Tabcorp Holdings Limited.
Importantly the Fair Work Commission has rejected Tabcorp’s argument that wagering employees should be covered by the Retail Award because they are essentially “selling” in a retail environment.
In part the decision states:
“[63] We are not persuaded that the references in this evidence to “products” being “sold” and “retail outlets” is decisive of the modern award coverage of the persons covered by the Wagering Award.”
“[77] Given the nature of the employees covered by the Wagering Award as described in its coverage clause and elaborated upon in its wage rates clause and the classification structure set out in Appendix A, we are satisfied that employees covered by the Wagering Award are “engaged wholly or principally in clerical work, including administrative duties of a clerical nature” and would thereby be covered by the Clerks Award but for the Wagering Award. As a result their employer, THL, would also be covered by the Clerks Award but for the Wagering Award”.
This is an important decision and the ASU is still assessing the details. What is clear is that this decision will be highly relevant when we re-negotiate the next On Course EBA in mid 2015, because every EBA has to leave employees better off overall as compared to the relevant Modern Award – this is referred to as the ‘BOOT’ (Better off Overall test).
There are differences (both superior and inferior) between the Tabcorp Wagering Employees Award 2003 and the Clerks Award. This will have to be factored in to our bargaining strategy next year in terms of making sure no Operators are disadvantaged. The ASU will fight to make sure that no-one is worse off. It’s important that everyone is united and in the union so we can protect important industry standards into the future.
