STATEMENT AND DIRECTIONS

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

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

JUSTICE ROSS, PRESIDENT
VICE PRESIDENT HATCHER
COMMISSIONER HUNT

MELBOURNE, 16 NOVEMBER 2018

4 yearly review of modern awards – plain language re-drafting – reasonable overtime model term

[1] On 29 October 2018 the Full Bench issued a Decision [2018] FWCFB 6680 determining a reasonable overtime model term and foreshadowed that draft determinations would be published for the 12 awards at Attachment A to that decision.

[2] At [25] of that decision we stated:

‘[25] Draft variation determinations will now be published. Our provisional view will only be displaced in respect of any particular award if it is demonstrated that there are matters or circumstances particular to that award which compel the conclusion that the achievement of the modern award objective for that award does not necessitate the variation of the award to insert the model term. One such matter may be the interaction between the model term and other provisions in that award.’ 1

[3] We foreshadowed that any tailoring of award-specific clauses would be addressed after the publication of draft determinations.

[4] A schedule of the draft determinations has been published on the Commission’s website.

[5] Any party proposing a variation to the draft determination should file submissions by 4.00 pm, Wednesday 28 November 2018.

[6] Submissions in reply are to be filed by 4.00 pm, Wednesday 5 December 2018.

[7] All material should be send to [email protected].

[8] This matter will be determined on the papers unless any party requests an oral hearing by 28 November 2018.

PRESIDENT

Printed by authority of the Commonwealth Government Printer

1 [2018] FWCFB 6680 at [25].

CaseChat Overview and Summary

In the Fair Work Commission, Justice Ross, Vice President Hatcher, and Commissioner Hunt presided over a review of modern awards. The review focused on re-drafting the language of certain awards to make it more understandable, particularly the term "reasonable overtime". This was part of the four-yearly review process mandated by the Fair Work Act 2009, which required the court to examine the modern awards and suggest any necessary adjustments. The court was tasked with determining whether the proposed model term for "reasonable overtime" should be applied uniformly across the awards, or if there were specific circumstances within certain awards that required a different approach. The court needed to consider the interaction of the model term with other provisions in the awards and decide whether the objective of the modern awards could be achieved without altering the awards to include the model term.

The court considered the broader objective of the modern awards, which was to ensure clarity and fairness in employment terms, particularly in relation to overtime. The court noted that while the model term for "reasonable overtime" was generally applicable, there might be unique interactions with other provisions in some awards that could necessitate tailored adjustments. The court acknowledged that the objective of the modern awards was to achieve a consistent and fair standard across all awards, but also recognised that certain awards might have specific circumstances that required a different approach. The court concluded that the proposed model term should be applied unless specific circumstances in an award demonstrated that it was not appropriate.

The court issued directions for the next steps in the review process, including the publication of draft determinations and the submission of any proposed variations by specified deadlines. The court also noted that any party could request an oral hearing if they wished to present their arguments in person. The court emphasised that the decision would be made on the basis of the submissions and evidence provided, unless an oral hearing was requested. The court's decision provided clarity on the process for reviewing and potentially adjusting the modern awards to ensure they met the objectives of clarity and fairness in employment terms.

4 yearly review of modern awards – Plain language re-drafting – reasonable overtime

STATEMENT AND DIRECTIONS

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established