4 yearly review of modern awards – Plain language – standard clauses

In the Fair Work Commission, the Australian Education Union and the Australian Tertiary Education Association were engaged in a dispute concerning the 4-yearly review of modern awards, specifically focusing on the plain language re-drafting of standard clauses. The core of the dispute was the validity of including a term in a modern award that permitted a deduction from money due to an employee upon termination if the employee failed to provide requisite notice of termination. Additionally, the review examined the implications of transferring to a lower-paid job on redundancy.

The court was tasked with determining whether the contested clause, which allowed for deductions based on the failure to provide notice, was consistent with the objectives of modern awards, particularly in relation to fairness and clarity. The review also scrutinised the broader impact of such clauses on employee rights and protections. The court had to balance the rights of employers to enforce notice periods with the need to ensure that employees were not unfairly disadvantaged upon termination.

After considering the submissions from both parties and the broader implications for employment practices, the court ruled that the clause permitting deductions for failure to provide notice was not consistent with the objectives of modern awards. The court emphasised the importance of clear, fair, and transparent terms in employment agreements. The ruling also noted the need to protect employees from unfair deductions and ensure that any changes to employment terms were justified and necessary. The court's decision was grounded in the principles of fairness and the protection of employee rights within the framework of modern awards.

The final orders included the removal of the clause permitting deductions for failure to provide notice from the relevant modern award. The court mandated that any future amendments to modern awards must align with the principles of fairness, clarity, and employee protection. Additionally, the court directed the parties to review other standard clauses to ensure they met the same standards of fairness and transparency.