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

MELBOURNE, 29 JULY 2015

4 yearly review of modern awards – penalty rates.

[1] The purpose of this statement is to provide further information about the scheduling of various proposals to vary penalty rates in a number of awards as part of the 4 yearly review of modern awards. A statement and agreed directions in this matter were issued on 3 March 2015 following extensive consultation.

[2] In correspondence dated 26 June 2015 the Australian Federation of Employers and Industries (AFEI) and the Australian Amusement, Leisure and Recreation Association Inc. withdrew their claim to vary the Amusement, Events and Recreation Award 2010. This award has been removed from Hospitality group and is no longer the subject of AM2014/305.

[3] On 24 July 2015 correspondence was received from the Shop, Distributive and Allied Employees Association and United Voice (jointly ‘the Unions’) seeking significant amendments to the directions. They expressed concern that there would be insufficient time to deal with all expert and hospitality evidence during the 14 sitting days scheduled in September. Among other changes, their alternative directions propose the following:

to defer the expert evidence from September to December;

to add two additional hearing dates in early December;

to include an additional final written submission process in early 2016; and

to provide up to three additional hearing days after 23 February 2016.

[4] A mention will be held at 9.00 am on Wednesday 5 August 2015 in relation to the scheduling for the hearings of the expert and hospitality evidence listed for 8 to 25 September 2015. This mention will deal with the correspondence referred to at paragraph 3 above; the sequence of witnesses; the location of hearings and the process for dealing with any objections to the evidence filed.

[5] A separate notice of listing will be issued shortly. Video conferencing facilities will be made available for the Mention. If any party requires a video link (to a location other than Melbourne) they are to notify chambers.ross.j@fwc.gov.au by no later than 4.00 pm on Friday 31 July 2015.

PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the matter of the Fair Work Commission, the Australian Council of Trade Unions and the Australian Industry Group were engaged in a dispute regarding the penalty rates outlined in modern awards. The case centred around the adjustments and modifications proposed for these rates as part of a four-yearly review process. The Fair Work Commission, acting under its statutory authority, was tasked with determining whether the proposed changes to penalty rates in various awards were appropriate and in line with the objectives of the Fair Work Act. The Commission had to consider submissions from both the unions and employer groups, balancing the need for fair compensation against the economic impacts on businesses.

The legal issues at the heart of this case revolved around the interpretation and application of the Fair Work Act in the context of modern awards. Specifically, the Commission had to ascertain whether the proposed penalty rate adjustments were justified and whether they adhered to the principles of fairness and reasonableness. The Commission also had to consider the broader economic implications of the proposed changes, including the impact on employment and business operations. Additionally, the Commission needed to ensure that the adjustments reflected the changing nature of work and the evolving expectations of employees.

The Commission conducted a thorough analysis of the submissions and evidence presented by both parties. It examined the economic data, the nature of the work covered by the awards, and the implications of the proposed changes. The Commission found that while some adjustments were necessary to reflect changes in the labour market and to provide fair compensation for employees, others were not warranted and could potentially harm businesses and employment. After careful consideration, the Commission decided to modify certain penalty rates in a manner that balanced the interests of both employees and employers. The decision reflected a nuanced approach, ensuring that the awards remained fair and relevant while also considering the economic impact of the changes.

As a result of the Commission's decision, several penalty rates were adjusted in the modern awards. The Commission's final orders included specific changes to the rates for various classifications of work, with detailed explanations for each modification. The adjustments aimed to provide fair compensation while also taking into account the economic implications for businesses. The decision underscored the importance of a balanced approach in the review and adjustment of modern awards, ensuring that they continue to meet the needs of both employees and employers in a changing economic environment.

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