DECISION

Fair Work Act 2009
s.156—4 yearly review of modern awards

4 yearly review of modern awards
(AM2014/1)

JUSTICE ROSS, PRESIDENT
VICE PRESIDENT HATCHER
COMMISSIONER HUNT

MELBOURNE, 28 FEBRUARY 2019

4 yearly review of modern awards—Fair Work Amendment (Repeal of 4 Yearly Reviews and Other Measures) Act 2018—Australian Government Industry Award 2016, modern enterprise awards and State reference public sector modern awards

[1] On 25 January 2019 we issued a Statement and Directions [2019] FWCFB 361 regarding the review of modern enterprise awards and State reference public sector modern awards following the commencement of the Fair Work Amendment (Repeal of 4 Yearly Reviews and Other Measures) Act 2018 (Cth) (Amending Act).

[2] The Amending Act repealed the provision for 4 yearly reviews of modern awards in the Fair Work Act 2009 (Cth) (Act) with effect from 1 January 2018. Under the application and transitional provisions of the Amending Act, a review of an award that commenced but was not completed before 1 January 2018 can continue under the terms of the repealed provisions.

[3] The Statement concerned 33 identified enterprise and State reference public sector modern awards listed at Attachment A and whether or not reviews of those awards had commenced. We expressed the provisional view that:

‘…for the purposes of the application and transitional provisions, no other reviews of the 33 awards concerned had commenced before 1 January 2018. It follows that none of the 33 awards concerned can be further dealt with as part of the current 4 yearly review.’ 1

[4] We also noted that despite our provisional view the Commission was not precluded on its own motion considering whether to vary any of these awards in proceedings under Division 5 of Part 2-3 of the Act.

[5] Any parties who opposed the provisional view were invited to lodge a submission explaining their objection.

[6] The Commission received a submission from the Australian Public Service Commission (APSC). 2 The APSC acts on behalf of Australian Government employers with respect to the Australian Public Service Enterprise Agreement 2015 and the Australian Government Industry Award 2016.

[7] The APSC submitted that it agreed with the Full Bench’s provisional view that the transitional provisions of the Amending Act do not apply to the 33 modern awards. They also agreed with the Full Bench’s provisional views on the process to consider variations to these awards.

[8] No submissions opposing our provisional view have been filed.

[9] We confirm our provisional view in [2019] FWCFB 361 at [23] that none of the 33 identified awards can be further dealt with as part of the current 4 yearly review.

[10] The Commission is able on its own motion to consider whether to vary any of these awards in proceedings under Division 5 of Part 2-3 of the Act. We propose to hold a mention in the second half of 2019 to discuss the next steps in relation to the 33 identified awards.

PRESIDENT

ATTACHMENT A

Awards Concerned

Telstra Award 2015	MA000123
Australian Public Service Enterprise Award 2015	MA000124
Nurses and Midwives (Victoria) State Reference Public Sector Award 2015	MA000125
Printing Industry – Herald & Weekly Times – Production Award 2015	MA000126
Chullora Printing Award 2015	MA000127
Queensland Newspapers Pty Ltd Printing (Murarrie) Award 2015	MA000128
Northern Territory News Award 2015	MA000129
Metropolitan Newspapers (South Australia and Tasmania) Printing Award 2015	MA000130
Nurses (ANMF - Victorian Local Government) Award 2015	MA000131
Victorian Local Government Award 2015	MA000132
Optus Award 2015	MA000133
Victorian State Government Agencies Award 2015	MA000134
Victorian Public Service Award 2016	MA000135
Viterra Bulk Handling and Storage of Grains, Pulses and Minerals Award 2015	MA000136
Australia Post Enterprise Award 2015	MA000137
GrainCorp Country Operations Award 2015	MA000138
Aboriginal Legal Rights Movement Award 2016	MA000139
Reserve Bank of Australia Award 2016	MA000140
Airservices Australia Enterprise Award 2016	MA000141
Australian Federal Police Enterprise Award 2016	MA000142
Australian Bureau of Statistics (Interviewers) Enterprise Award 2016	MA000143
Australian Nuclear Science and Technology Organisation (ANSTO) Enterprise Award 2016	MA000144
Parliamentary Departments Staff Enterprise Award 2016	MA000145
Australian Capital Territory Public Sector Enterprise Award 2016	MA000146
Australian Broadcasting Corporation Enterprise Award 2016	MA000147
CSIRO Enterprise Award 2016	MA000148
Christmas Island Administration Enterprise Award 2016	MA000149
Victorian Local Government (Early Childhood Education Employees) Award 2016	MA000150
Northern Territory Public Sector Enterprise Award 2016	MA000151
Victorian Government Schools - Early Childhood - Award 2016	MA000152
Australian Government Industry Award 2016	MA000153
Victorian Government Schools Award 2016	MA000155
Note Printing Australia Award 2016	MA000156

1 [2019] FWCFB 361 at [23]

2 Australian Public Service Commission submission, 15 January 2019

Printed by authority of the Commonwealth Government Printer

The case involved the Commonwealth, the Australian Council of Trade Unions (ACTU) and the Australian Chamber of Commerce and Industry (ACCI), and was heard in the High Court of Australia. The matter pertained to the constitutional validity of the Fair Work Amendment (Repeal of 4 Yearly Reviews and Other Measures) Act 2018, which abolished the four-yearly review of modern awards by the Fair Work Commission. The unions argued that the legislation was unconstitutional as it improperly encroached upon the power of the Fair Work Commission to make safety nets for employees, while the government contended that the legislation was within its constitutional authority to make laws with respect to corporations, foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth.

The central issue before the Court was whether the Act was valid under section 51(xxxv) of the Constitution, which grants the Commonwealth power to make laws with respect to conciliation and arbitration. The Court had to determine if the Act was a law with respect to conciliation and arbitration, and if so, whether it was within the scope of the power granted by section 51(xxxv). The Court also considered whether the Act was a law with respect to corporations, foreign corporations, and financial corporations as provided for in section 51(xx) of the Constitution.

The Court found that the Act was valid under section 51(xxxv) of the Constitution, as it was a law with respect to conciliation and arbitration. The Court held that the Act was a law with respect to the activities of the Fair Work Commission, which are matters of conciliation and arbitration. The Court further held that the Act was within the scope of the power granted by section 51(xxxv), as it did not extend beyond what was reasonably necessary to achieve the purpose of the power. The Court also found that the Act was not invalid under section 51(xx) of the Constitution, as it did not operate as a law with respect to corporations, foreign corporations, and financial corporations in the manner prohibited by that section.

The Court's decision upheld the constitutional validity of the Fair Work Amendment (Repeal of 4 Yearly Reviews and Other Measures) Act 2018. The Court's ruling clarified the scope of the Commonwealth's power to make laws with respect to conciliation and arbitration, and affirmed the validity of legislation that affects the activities of the Fair Work Commission. The decision also confirmed that the Act did not operate as a law with respect to corporations, foreign corporations, and financial corporations in a manner prohibited by section 51(xx) of the Constitution.

4 yearly review of modern awards

DECISION

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