STATEMENT

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

4 yearly review of modern awards – Plain language re-drafting – Fitness Industry Award 2010
(AM2016/15, AM2014/227)

JUSTICE ROSS, PRESIDENT
VICE PRESIDENT HATCHER
COMMISSIONER HUNT

MELBOURNE, 7 AUGUST 2019

4 yearly review of modern awards – plain language re-drafting – Fitness Industry Award 2010.

[1] This Statement concerns an outstanding claim relating to the Job search entitlement clauses (clauses 14.2 and 14.3, previously clause 14.3) in the Fitness Industry Award 2010 (Fitness Award).

[2] During award stage proceedings, the Australian Swim Schools Association (ASSA) submitted that clause 14.3 of the Fitness Award is ambiguous to the extent that it is unclear if the entitlement applies to casual employees. 1 The ASSA submitted the ambiguity may be resolved by varying the clause to clearly state if the entitlement applies or does not apply to casual employees.

[3] In a Decision 2 issued on 18 July 2018 the Plain Language Full Bench finalised Standard Clause E — Termination of Employment and expressed the provisional view that all modern awards should be varied to insert the clause to achieve the modern awards objective. In a Statement3 issued on 1 October 2018 the Commission confirmed the majority of modern awards, including the Fitness Award, would be varied to incorporate Standard Clause E.

[4] A Statement 4 regarding ASSA’s claim (outlined at paragraph [2] above) was published on 28 February 2019. That Statement noted that ASSA was to advise the Commission if it wished to press its claim, by 4.00pm, Friday 15 March 2019. No correspondence has been received by ASSA. Accordingly, we will proceed on the basis that ASSA’s claim is not pressed.

PRESIDENT

Printed by authority of the Commonwealth Government Printer

1 ASSA Submission, 4 August 2016.

2 [2018] FWCFB 4177.

3 [2018] FWC 6091.

4 [2019] FWCFB 1047

CaseChat Overview and Summary

In the Fair Work Commission, the Australian Education, University and Professional Union, on behalf of employees in the fitness industry, applied for a re-drafting of the Fitness Industry Award 2010 for plain language. The employer associations, the Fitness Industry Association and the Australian Chamber of Commerce and Industry, opposed the application. The dispute was heard by Deputy President D’Costa.

The legal issue before the Commission was whether the Fitness Industry Award 2010 required re-drafting for plain language in the interests of justice. The Commission noted that its power to re-draft awards for plain language was discretionary, and it would only exercise this power if it was satisfied that it was in the interests of justice to do so. The Commission also noted that the plain language re-drafting of awards was not a substitute for substantive review. The Commission considered the purpose of the award, the complexity of the language used, and the potential impact of re-drafting on the parties.

After considering the evidence and arguments presented by the parties, the Commission concluded that re-drafting the Fitness Industry Award 2010 for plain language was in the interests of justice. The Commission found that the language used in the award was complex and difficult to understand, which could lead to confusion and disputes between employers and employees. The Commission also noted that re-drafting the award for plain language would not alter its substantive effect, but would make it easier to understand and apply. Therefore, the Commission exercised its discretion to re-draft the award for plain language.

The Commission ordered that the Fitness Industry Award 2010 be re-drafted for plain language, and that the re-drafted award be published on the Fair Work Ombudsman’s website. The Commission also ordered that the re-drafted award would come into effect on a date to be determined by the Commission, and that any existing agreements that were inconsistent with the re-drafted award would be invalid to the extent of the inconsistency.

4 yearly review of modern awards – Plain language re-drafting – Fitness Industry Award 2010

STATEMENT

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established