4 yearly review of modern awards (AM2014/1 & Ors)

[2017] FWC 6623

[2017] FWC 6623

FAIR WORK COMMISSION

STATEMENT

Fair Work Act 2009

s.156–4 yearly review of modern awards

4 yearly review of modern awards

(AM2014/1 & Ors)

JUSTICE ROSS, PRESIDENT MELBOURNE, 11 DECEMBER 2017

4 yearly review of modern awards – completing the first 4 yearly review – commencement of the second 4 yearly review.

1. Section 156 of the Fair Work Act 2009 (FW Act) obliges the Commission to conduct 4 yearly reviews of modern awards “starting as soon as practicable after each 4th anniversary of the commencement of” Part 2-3 of the FW Act. Part 2-3 commenced on 1 January 2010[1].

1. The Fair Work Amendment (Repeal of 4 Yearly Reviews and Other Measures) Bill 2017 (the Bill) provides for the repeal of the requirement for the Commission to conduct 4 yearly reviews of modern awards.

1. There is no likelihood that the Bill will become law before 1 January 2018. In recent weeks, the Commission has received a number of inquiries about the scheduling of the second review in circumstances where the current review has not yet been completed. The purpose of this Statement is to address that issue.

1. The first 4 yearly review (the current review) commenced in February 2014. The current review has consisted of an initial stage, an award stage and a common issues stage.

1. The initial stage was finalised with a Decision issued on 17 March 2014 and the current review has largely been dealt with through the award stages and the common issues proceedings. For the purposes of the award stage, the 122 modern awards were divided into 4 groups, each group allocated to a core Full Bench. The Full Benches have determined a number of technical and drafting issues in Groups 1, 2 and 3. A decision in Group 4 is expected shortly. More substantive proposals for change to individual awards have also been referred to separately constituted Full Benches for determination.

1. The following matters are being dealt with as common issues:

·   AM2015/35-Abandonment of employment;

·   AM2014/47-Annual leave;

·   AM2016/13-Annualised salaries;

·   AM2014/192-Apprentice conditions;

·   AM2014/300-Award flexibility;

·   AM2016/36-Blood donor leave;

·   AM2014/197-Casual employment & AM2014/196-Part-time employment;

·   AM2015/1-Family and domestic violence leave clause;

·   AM2015/2-Family friendly work arrangements;

·   AM2016/17-National training wage;

·   AM2016/8-Payment of wages;

·   AM2014/301-Public holidays; and

·   AM2014/190-Transitional provisions.

1. In addition to the common issues, the Commission has heard and determined the Penalty rates case and commenced a process to redraft awards using Plain language principles. The plain language process commenced in September 2015 with a pilot project to redraft the Pharmacy Industry Award 2010. The purpose of the pilot was to produce a plain language exposure draft which was simpler and easier to understand for employers and employees. After the pilot the Commission announced the selection of a further 4 awards for plain language redrafting[2]. The plain language process has also involved the development of plain language guidelines, the redrafting of standard clauses across all modern awards, a review of the National Training Wage schedules and a change to the structure of exposure drafts in the award stage of the review. A Decision on 28 August 2017 identified a second tranche of awards for plain language drafting. It is likely that the plain language project will continue into at least late 2018.

1. From the commencement of the current review of modern awards to 30 June 2017 there have been:

·   818 days of hearings, conferences and mentions;

·   12,096 documents published on the 4 yearly review website (including submissions, witness statements, correspondence, notices of listing and transcript) ; and

·   218 decisions and statements issued.

1. Substantial progress has been made to date, however, there is a significant amount of work still to be done to finalise the current review and it is unlikely to be completed until late in the second half of 2018. A further statement will be issued shortly providing an indicative timetable for the completion of the current review.

1. As I have mentioned, s.156 requires the Commission to conduct reviews “starting as soon as practicable” after each 4th anniversary of 1 January 2010. Accordingly, the second review is due to commence as soon as practicable after 1 January 2018 (the second 4 yearly review).

1. In light of the volume of work still required to complete the current review, I have formed the provisional view that it is not practicable to commence the second 4 yearly review until the current review has been completed and parties have been given an opportunity to consider how the recently reviewed modern awards are operating in practice.

1. Interested parties are invited to make submissions on the provisional view set out at [11] above, by 4.00 pm on Thursday 21 December 2017. Comments should be sent to [e-mail]

PRESIDENT

[1] Section 2 of the Fair Work Act 2009

[2] Clerks – Private Sector Award 2010; General Retail Industry Award 2010; Hospitality Industry (General) Award 2010; and Restaurant Industry Award 2010.

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