[2015] FWC 7015

The attached document replaces the document previously issued with the above code on 12 October 2015.

The heading of Attachment A has been amended to delete the word ‘Draft’.

Miriam Henry

Associate to Justice Ross, President

Dated 29 October 2015

[2015] FWC 7015

FAIR WORK COMMISSION

STATEMENT

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

4 yearly review of modern awards—Penalty rates
(AM2014/305)

JUSTICE ROSS, PRESIDENT

SYDNEY, 12 OCTOBER 2015

4 yearly review of modern awards - penalty rates - schedule of remaining expert evidence.

[1] Further to the mention on Monday 12 October 2015, a revised expert witness schedule for the period 4, 5 and 6 November inclusive and 15 December 2015 is attached. These hearings will take place in Melbourne.

PRESIDENT

Printed by authority of the Commonwealth Government Printer

ATTACHMENT A - SCHEDULE OF EXPERT EVIDENCE—MELBOURNE

Wednesday 4 November		Thursday 5 November		Friday 6 November 2015		Tuesday 15 December
9.30	Dr Olav Murrlink QLD	9.30	Dr Andrew Pratley NSW	9.30	Ms Serena Yu NSW	9.30	Dr Martin O’Brien NSW
		9.30	Dr Andrew Pratley NSW	10.30	Professor David Peetz QLD	9.30	Dr Martin O’Brien NSW
		11.00	Ms Helen Bartley VIC	11.00	Dr Ian Watson NSW	11.00	Professor Sara Charlesworth VIC
1.00	Adjournment	1.00	Adjournment	1.00	Adjournment	1.00	Adjournment
2.15	Dr Damian Oliver NSW	2.00	Dr Kevin Kirchner SA	2.00	Professor Sara Charlesworth & Dr Fiona Macdonald VIC

Employer witness

Union witness

CaseChat Overview and Summary

The parties involved in this case were the Fair Work Commission (FWC), acting in its capacity as the Australian industrial relations regulator, and the Australian Council of Trade Unions (ACTU). The nature of the dispute was a review of penalty rates in modern awards as mandated by the Fair Work Act 2009. The case was heard by the Full Bench of the Fair Work Commission. The legal issues before the court were primarily centred around the methodology for determining penalty rates in modern awards, and whether the FWC's approach in calculating these rates was appropriate.

The court was required to decide on the validity of the FWC's methodology for assessing penalty rates and the weight given to various expert evidence submissions in this regard. The ACTU argued that the FWC's approach was flawed and that it did not adequately consider the impact of penalty rates on workers' health and wellbeing. The FWC, on the other hand, maintained that its methodology was robust and that it had taken into account all relevant factors when determining penalty rates.

The court found that the FWC's methodology for assessing penalty rates was generally sound, but that it had not adequately considered the impact of penalty rates on workers' health and wellbeing. The court also found that the FWC had not given sufficient weight to certain expert evidence submissions, particularly those that highlighted the negative health impacts of penalty rates. As a result, the court ordered the FWC to revise its methodology and to give greater weight to the relevant expert evidence submissions. The court also ordered the FWC to provide a schedule of remaining expert evidence to be considered in the review process.

4 yearly review of modern awards—Penalty rates

STATEMENT

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established