4 yearly review of modern awards – plain language re-drafting – facilitative provisions altering spread of hours

In the matter of the review of modern awards, the Fair Work Commission (FWC) was tasked with updating and clarifying certain provisions related to the spread of hours clauses. The Commission was required to undertake a plain language re-drafting of these provisions to eliminate ambiguity and improve clarity for employers and employees. This decision was made as part of the regular four-yearly review process and was considered in the context of ensuring that the language used in modern awards is accessible and understandable. The Commission's decision was subject to judicial review in the Federal Court, where the legality and appropriateness of the changes made were examined.

The key legal issue before the court was whether the FWC had acted within its statutory powers and exercised its discretion appropriately in re-drafting the spread of hours clauses in the modern awards. The court was required to consider whether the FWC had adequately justified its decision to amend the language of the clauses, and whether the changes made were consistent with the objectives of the modern awards system. Additionally, the court had to assess whether the FWC had considered relevant factors and taken into account the potential impact of the changes on employers and employees.

The court found that the FWC had exercised its discretion lawfully and appropriately in re-drafting the spread of hours clauses. The Commission had demonstrated a clear rationale for the changes, which was to remove ambiguity and improve clarity in the language used. The court acknowledged that the plain language re-drafting was a legitimate exercise of the FWC's powers and that the changes made were consistent with the objectives of the modern awards system. The court also found that the FWC had considered relevant factors and taken into account the potential impact of the changes on employers and employees. Consequently, the court dismissed the application for judicial review, upholding the FWC's decision.

The court's decision confirms the FWC's authority to undertake plain language re-drafting of modern awards provisions as part of the four-yearly review process. The court's ruling provides clarity on the scope of the FWC's powers in this regard and reinforces the importance of ensuring that modern awards are accessible and understandable for all stakeholders. The outcome of this case serves as a reminder that the FWC has a broad discretion in re-drafting award provisions, provided that the changes are justified and consistent with the objectives of the modern awards system.