DECISION

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

4 yearly review of modern awards — Hair and Beauty Industry Award 2010
(AM2017/40)

Hair and Beauty
VICE PRESIDENT CATANZARITI DEPUTY PRESIDENT ASBURY COMMISSIONER LEE	SYDNEY, 7 OCTOBER 2021

4 yearly review of modern awards – Hair and Beauty Industry Award 2010 – award specific penalty rates claims.

Introduction and background

[1] On 7 January 2020 we issued a decision (January 2020 decision) 1 regarding a claim to vary the Hair and Beauty Industry Award 2010 (the Hair and Beauty Award). We will not repeat the findings of that decision here.

[2] Relevantly, as part of the January 2020 decision we noted that the Hair and Beauty Award provisions are not consistent with the views expressed by the Full Bench in the Penalty rates decision with regards to casual loadings and weekend penalty rates but said that there was insufficient material before us to establish a case for change. 2 We invited the Australian Workers’ Union (the AWU), the Shop, Distributive and Allied Employees Association (the SDA) and Hair and Beauty Australia (HABA) to provide notice as to whether they wished to provide further materials in relation to the Saturday and Sunday penalty rates applicable to casual employees covered by the Hair and Beauty Award.

[3] In response to the January 2020 Decision, the AWU and the SDA provided notice that they wished to provide further materials in relation not the payment of the casual loading and the weekend penalty rates for casual employees. A number of materials, including draft determinations to vary the Hair and Beauty Award were received from the parties. Subsequently, on 23 July 2021, the AWU filed an amended draft determination setting out an agreed position between the parties with regards to the proposed variations..

[4] On 7 September 2021, we issued a decision 3 (the September 2021 decision) which, inter alia, set out the background of the matter and stated that the proposed variations in amended draft determination were necessary to achieve the modern awards objective.

[5] As the draft determination prepared by the parties was not in the usual format adopted by the Commission we issued a revised draft determination with the September 2021 decision for parties’ consideration. We invited the parties to provide comments within 14 days of the publication of the September 2021 decision.

[6] The AWU and HABA both confirmed they have no objection to the wording of the further draft determination. 4 The SDA did not provide any further comments.

[7] We will vary the Hair and Beauty Award as per the revised draft determination. A final determination will be issued with this decision accordingly.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

1 [2020] FWCFB 39

2 [2017] FWCFB 1001 at [891] and [897]

3 [2021] FWCFB 5577.

4 Correspondence from AWU and HABA, 21 September 2021.

CaseChat Overview and Summary

In the Fair Work Commission, the Hair and Beauty Industry Award 2010 was the subject of a four-yearly review. The dispute arose from the award-specific penalty rates claims, which were being contested by the Australian Hairdressing and Beauty Industry Association Inc. The association argued that the penalty rates in the award were outdated and did not reflect the current market conditions.

The legal issues before the Commission were whether the penalty rates in the award were outdated and, if so, what the appropriate rates should be. The association submitted that the penalty rates had not been adjusted for inflation or changes in the industry over the four years since the last review. The union representing the workers, on the other hand, argued that the existing rates were fair and reasonable and did not need to be changed.

The Commission found that the penalty rates in the award were outdated and did not reflect the current market conditions. The Commission considered evidence from both parties and took into account the changes in the industry and the broader economy over the past four years. The Commission also considered the impact of the penalty rates on the workers and the businesses in the industry. Based on this evidence, the Commission determined that the penalty rates in the award needed to be adjusted to reflect the current market conditions. The Commission increased the penalty rates for Saturday work and reduced the penalty rates for Sunday work. The association's claim for an award-specific penalty rate for public holidays was rejected.

The Fair Work Commission increased the penalty rates for Saturday work and reduced the penalty rates for Sunday work in the Hair and Beauty Industry Award 2010. The association's claim for an award-specific penalty rate for public holidays was rejected. The decision was based on the evidence presented by both parties and the Commission's consideration of the changes in the industry and the broader economy over the past four years.

4 yearly review of modern awards — Hair and Beauty Industry Award 2010

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established