Proposed Norfolk Island Award

[2018] FWCFB 4732 4 yearly review of awards – Proposed Norfolk Island Award (application for proposed interim award refused – “s.139(1)(g)(iii) is to be construed as either ‘an exception to the otherwise general operation of s.154 or as a specific statutory provision dealing with a question not sought to be addressed in that section’” @17 – “s.154 … does not require all modern award terms and conditions to operate uniformly throughout Australia; both limbs of s.154(1) are directed to the same general objective — to prohibit differences between entitlements in States or Territories as such, that is, to eliminate ‘State-based’ differences; and s.154(1)(b) ‘prevents the possibility that terms and conditions might apply (ie as a matter of general application) in one or some but not every State or Territory, thereby discriminating (facially at least) against employees in those States or Territories which are excluded’” @18 – “With effect from 1 July 2016, the Territory of Norfolk Island became a Territory within the meaning of s.154(1)(b)” @19 – the Full Bench therefore considered “whether the proposed Interim Award includes any terms and conditions of employment that ‘are expressed to operate in one or more, but not every, State and Territory’” @19 – “a coverage term is a term and condition of employment for the purposes of s.154(1)” @23 – “all the terms and conditions of employment included in the proposed Interim Award are State based difference terms within the meaning of s.154(1)(b) … It is unnecessary for us to express a view as to whether the terms and conditions included in the proposed Interim Award are State-based differences terms within the meaning of s.154(1)(a)” @27 – “On an ordinary reading the proposed Interim Award is expressed to operate in one and only one Territory, that being the Territory of Norfolk Island. That is because, on the face of it, the proposed Interim Award seeks to exclude employees working in other States and Territories from its coverage based entirely on the fact that they work in those other States and Territories. This is exactly what s.154(1)(b) was enacted to prevent. Accordingly, all the terms and conditions of employment included in the proposed Interim Award are prohibited by s.154(1)(b)” @41 – “it is immaterial that clause 4.1 of the proposed Interim Award carves out the Norfolk Island landmass from the Territory of Norfolk Island so that the proposed Interim Award does not apply geographically throughout the Territory of Norfolk Island” @42 – “an award which ‘covers employees … working on Norfolk Island employed by private sector employees operating a business on Norfolk Island’ is prohibited by s.154(1)(b)” @45)