4 yearly review of modern awards—Award stage—Group 1

[2018] FWCFB 7007

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.156 – 4 yearly review of modern awards

4 yearly review of modern awards—Award stage—Group 1

(AM2014/64 and others)

JUSTICE ROSS, PRESIDENT
VICE PRESIDENT HATCHER
SENIOR DEPUTY PRESIDENT HAMBERGER
DEPUTY PRESDENT BULL
COMMISSIONER BISSETT

MELBOURNE, 16 NOVEMBER 2018

4 yearly review of modern awards – award stage – exposure drafts – technical and drafting issues – Group 1 – outstanding issue – cross-reference to consultation obligations – Poultry Processing Award 2010 – Meat Industry Award 2010 – Manufacturing and Associated Industries and Occupations Award 2010.

This decision deals with an outstanding technical and drafting issue arising from Group 1 Awards, which are being dealt with as part of the 4 yearly review of modern awards (the Review). The relevant awards are the Poultry Processing Award 2010 (the Poultry Award), the Meat Industry Award 2010 (the Meat Award) and the Manufacturing and Associated Industries and Occupations Award 2010 (the Manufacturing Award).

In a decision issued on 12 September 2018[1] we proposed to amend clause 8.2(b) of the Poultry Award to include a reference to its consultative provisions. The background to the issue is set out at paragraphs [84] – [98] of that decision. It was proposed that clause 8.2(b) be amended by adding the following additional sentence at the end of the clause ‘Any change to regular rosters or ordinary hours of work is subject to the consultative provisions in clause 22.2.’

We noted that the same issue arises in a small number of other exposure drafts in Group 1, which were listed at Attachment B to our decision. These awards are the Meat Award and the Manufacturing Award. We proposed to vary those awards in the same manner as our proposal in the Poultry Award, that is, to add a sentence to the relevant paragraph in each exposure draft in the following terms:

‘Any change to regular rosters or ordinary hours of work is subject to the consultative provisions in clause XX.X.’

Interested parties were invited to file submissions in relation to our proposal by 4.00 pm on 25 September 2018. We noted that absent any objection to the course proposed we would vary the awards.

The Australian Industry Group (Ai Group) filed a submission on 24 September 2018[2] noting that they do not oppose the amendments to the three awards in question. No comment from any other party was received.

The exposure draft clauses for the three awards will be updated as outlined in the following table:

Exposure Draft	Group	Clause References
Manufacturing Award	1C	13.2(d); 13.3(c) and 13.5(a)
Meat Industry Award	1C	8.7(c) and 16.5
Poultry Award	1C	8.2(b)

Revised exposure drafts will be published shortly.

PRESIDENT

[1] [2018] FWCFB 5602

[2] Ai Group submission, 24 September 2018

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission recently dealt with a case concerning the 4 yearly review of modern awards, specifically addressing technical and drafting issues in the Poultry Processing Award 2010, the Meat Industry Award 2010, and the Manufacturing and Associated Industries and Occupations Award 2010. The central issue was the addition of a reference to consultative provisions in these awards to ensure compliance with consultation requirements when altering regular rosters or ordinary hours of work. This arose from the Commission's earlier decision on 12 September 2018, where amendments were proposed to the Poultry Award. The proposed changes aimed to explicitly state that any changes to work schedules must adhere to the consultative provisions outlined in the respective awards.

The legal issues before the Commission involved ensuring that the awards' provisions accurately reflected the requirement for consultation when modifying work schedules. The Commission had to determine whether the proposed amendments correctly addressed the technical and drafting concerns identified during the review process. Furthermore, the Commission needed to consider whether the proposed changes would be appropriately aligned with the Fair Work Act 2009 and the broader objectives of the 4 yearly review of modern awards.

The Commission's reasoning focused on the need for clear and unambiguous language in the awards to prevent any ambiguity regarding consultation obligations. The proposed amendments were intended to make explicit what was implicit in the consultative provisions, ensuring that employers and employees alike understood their obligations. The Australian Industry Group's submission did not oppose the amendments, which supported the Commission's decision to proceed with the changes as proposed. The Commission ultimately determined that the proposed amendments were necessary to resolve the outstanding issue and ensure the awards' provisions were clear and enforceable. The revised exposure drafts will be published shortly, reflecting the amendments to the awards.

CaseChat Overview and Summary

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Background to the litigation

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Legal Principle Established