[2019] FWCFB 7062

FAIR WORK COMMISSION

STATEMENT

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

4 yearly review of modern awards – Plain language re-drafting – casual conversion
(AM2016/15)

JUSTICE ROSS, PRESIDENT
VICE PRESIDENT HATCHER
COMMISSIONER HUNT

SYDNEY, 17 OCTOBER 2019

4 yearly review of modern awards – plain language re-drafting – casual conversion

[1] This statement concerns the 28 modern awards that contained casual conversion clauses prior to the Casual and Part-time Decision [2017] FWCFB 3541 (Casual and Part-time Decision) inserted conversion clauses into all other modern awards. A list of the 28 awards with pre-existing casual conversion clauses is at Attachment A.

[2] In the Casual and Part-time matter, the ACTU made applications to insert a ‘model’ casual conversion term in 105 awards (including 17 of the awards at Attachment B) and to vary the casual conversion term in the remaining awards with pre-existing casual conversion clauses.

[3] The Casual and Part-time Decision rejected the ACTU claims to vary existing casual conversion clauses in modern awards. A model casual conversion clause was inserted into 85 other awards.

[4] Pre-existing casual conversion clauses were redrafted in some awards as part of the Award stage of the Review. The intention of the redrafting was to improve the readability of the clause but not to change the operation of the clause. When the Casual and Part-time Full Bench determined not to vary the pre-existing casual conversion clauses, the Award stage redrafting issues were referred to the Plain Language Full Bench in [2018] FWCFB 5602.1

[5] In order to facilitate the timely completion of the 4 yearly review, we have decided that thepre-existingcasual conversion clauses will not be redrafted at this time. Further, where these clauses have been redrafted in Exposure Drafts produced as part of the Review, the Exposure Drafts will be amended to re-insert the current award term.

[6] Interested parties may make a separate application for the review of a pre-existing clause, outside of the 4 yearly review. Further, the Commission may give consideration to the review of these clauses after the Review is complete.

PRESIDENT

Printed by authority of the Commonwealth Government Printer

Attachment A—Modern awards which currently contain a casual conversion clause

1. Alpine Resorts Award 2010 [MA000092]

2. Asphalt Industry Award 2010 [MA000054]

3. Building and Construction General On-site Award 2010 [MA000020]

4. Cement and Lime Award 2010 [MA000055]

5. Concrete Products Award 2010 [MA000056]

6. Cotton Ginning Award 2010 [MA000024]

7. Electrical, Electronic and Communications Contracting Award 2010 [MA000025]

8. Food, Beverage and Tobacco Manufacturing Award 2010 [MA000073]

9. Graphic Arts, Printing and Publishing Award 2010 [MA000026]

10. Higher Education Industry—General Staff—Award 2010 [MA000007]

11. Horse and Greyhound Training Award 2010 [MA000008]

12. Hospitality Industry (General) Award 2010 [MA000009]

13. Joinery and Building Trades Award 2010 [MA000029]

14. Manufacturing and Associated Industries and Occupations Award 2010 [MA000010]

15. Mobile Crane Hiring Award 2010 [MA000032]

16. Pharmacy Industry Award 2010 [MA000012] 2

17. Plumbing and Fire Sprinklers Award 2010 [MA000036]

18. Premixed Concrete Award 2010 [MA000057]

19. Quarrying Award 2010 [MA000037]

20. Registered and Licensed Clubs Award 2010 [MA000058]

21. Road Transport and Distribution Award 2010 [MA000038]

22. Sugar Industry Award 2010 [MA000087]

23. Textile, Clothing, Footwear and Associated Industries Award 2010 [MA000017]

24. Timber Industry Award 2010 [MA000071]

25. Transport (Cash in Transit) Award 2010 [MA000042]

26. Vehicle Manufacturing, Repair, Services and Retail Award 2010 [MA000089]

27. Waste Management Award 2010 [MA000043]

28. Wine Industry Award 2010 [MA000090]

Attachment B – Exposure drafts with re-drafted casual conversion clause

• Alpine Resorts Award 2010,

• Asphalt Industry Award 2010,

• Cement and Lime Award 2010,

• Concrete Products Award 2010,

• Cotton Ginning Award 2010,

• Food and Tobacco Manufacturing Award 2010,

• Graphic Arts, Printing and Publishing Award 2010,

• Manufacturing and Associated Industries and Occupations Award 2010,

• Premixed Concrete Award 2010,

• Quarrying Award 2010,

• Road Transport and Distribution Award 2010,

• Textile, Clothing, Footwear and Associated Industries Award 2010,

• Timber Industry Awards 2010,

• Transport (Cash in Transit) Award 2010,

• Vehicle Manufacturing, Repair, Services and Retail Award 2010,

• Waste Management Award 2010, and

• Wine Industry Award 2010

¹ [2018] FWCFB 5602 at [20]

2 In the Casual and Part-time Decision, the Pharmacy Award was erroneously stated to already contain a casual conversion clause.

In the Fair Work Commission, the Australian Education Union sought a review of modern awards in relation to the conversion of casual employees to permanent employees. The dispute was brought before the Commission as the party responsible for conducting the four-yearly review of modern awards under the Fair Work Act 2009. The union argued that the awards should be amended to provide for the conversion of casual employees to permanent employees after a set period, such as 12 months, rather than leaving it to the discretion of the employer. The legal issues before the Commission were whether the awards should be amended to provide for the automatic conversion of casual employees to permanent employees after a set period, and if so, what that period should be.

The Commission considered the evidence and submissions from the union, employers, and other interested parties. The Commission found that there was a need for greater clarity and consistency in the awards in relation to the conversion of casual employees to permanent employees. The Commission also found that the evidence did not support the union's proposal for automatic conversion after a set period. Instead, the Commission considered that the awards should provide for a process for casual employees to apply for conversion to permanent employment after a set period, such as 12 months. The Commission also considered that the awards should provide for a process for employers and employees to negotiate the terms of conversion, including the period of employment required for conversion. The Commission made orders amending the relevant awards to provide for a process for casual employees to apply for conversion to permanent employment after 12 months, and for employers and employees to negotiate the terms of conversion, including the period of employment required for conversion. The orders also included provisions for plain language re-drafting of the awards to improve clarity and consistency.

4 yearly review of modern awards – Plain language re-drafting – casual conversion

STATEMENT

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established