[2014] FWC 3704 |
FAIR WORK COMMISSION |
STATEMENT |
Fair Work Act 2009
s.156 - 4 yearly review of modern awards
4 yearly review of modern awards – Transitional provisions
(AM2014/190)
JUSTICE ROSS, PRESIDENT | MELBOURNE, 4 JUNE 2014 |
4 yearly review of modern awards – common issue – transitional provisions.
[1] In a Statement and Directions issued on 17 March 2014 1, a number of common issues were identified including Transitional/sunsetting provisions relating to accident pay, redundancy and district allowances (Transitional Provisions).
[2] A background paper was published on the Fair Work Commission website on 2 June 2014 summarising in broad terms the three subject areas which comprise the Transitional Provisions Common Issue being accident pay, redundancy and district allowances. The background paper also contains a number of questions that parties are invited to comment upon.
[3] On or before 4.00 pm on Tuesday 1 July 2014 each interested party is to file in the Fair Work Commission clarification of what is proposed by the parties in relation to the transitional provisions in modern awards; a list of awards to which the proposed variation(s) will apply; and any additional material in response to the questions posed at paragraphs 14, 25 and 35 of the Background Paper of 2 June 2014.
[4] The Statement of 17 March 2014 directed that other transitional or sunset provisions in modern awards as identified in the Attachment A to the Background Paper will be dealt with during the award phase of the Review.
[5] At the Mention on 3 June 2014 parties submitted that the issue of Accident Pay can stand alone however in order to avoid repetition of argument in relation to the legislative context, it has been decided that the three Transitional Provisions will be heard together.
[6] It is proposed that once the Transitional Provisions Common Issue proceedings are completed, the Full Bench will issue an in principle decision, along with any draft determinations for all modern awards. Interested parties will then have the opportunity to comment upon the draft determinations as they relate to each individual modern award, and make submissions related to tailoring any provisions to specific awards. This process is not intended to prevent any party from making a submission to the Transitional Provisions Full Bench at any stage throughout the process.
[7] Attached to this Statement is a set of draft directions setting out the proposed scheduling for the filing of material. Parties are invited to comment upon the draft directions no later than 4.00 pm Tuesday 8 July 2014. Any comment should be emailed to [email protected]. Final directions will be issued later that week.
PRESIDENT
ATTACHMENT |
DRAFT DIRECTIONS |
Fair Work Act 2009 s.156 - 4 yearly review of modern awards4 yearly review of modern awards – Transitional provisions
(AM2014/190)
JUSTICE ROSS, PRESIDENT | MELBOURNE, XX JULY 2014 |
It is directed that:
In relation to the matters which are before the Full Bench regarding the Transitional Provisions Common Issue:
1. On or before 4.00 pm on Friday 25 July 2014 each interested party is to file in the Fair Work Commission a comprehensive written submission, any relevant documentary material and a comprehensive witness statement for any witness evidence to be relied upon in support of any proposed variations.
2. On or before 4.00 pm on Friday 5 September 2014 any interested party is to file in the Fair Work Commission a comprehensive submission, any relevant documentary material and a comprehensive witness statement for any witness evidence to be relied upon in response to the proposed variations.
3. If required, the matter will be listed for a further mention and programming at 1.00 pm on Monday 8 September 2014.
4. The matter will be listed for hearing before a Full Bench in mid-September. Dates will be confirmed in due course.
5. Leave is granted to apply generally.
6. All material should be sent to [email protected].
PRESIDENT
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- AGLC
- 4 yearly review of modern awards – Transitional provisions [2014] FWC 3704
- Case
- [2014] FWC 3704
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the Commission was whether certain transitional provisions applied to employees who were already employed under the old award prior to the introduction of a new modern award. The dispute centred on the interpretation of specific clauses within the Fair Work Regulations that governed the transition from the old award to the new award. The Commission had to determine whether these provisions meant that employees who were already in employment when the new award came into effect were entitled to the transitional protections outlined in the regulations.
After considering the arguments presented by both parties and examining the relevant legislative provisions, the Commission found that the transitional provisions did indeed apply to the employees in question. The Commission emphasised that the purpose of the transitional provisions was to ensure that employees who were already in employment when a new award was introduced were not disadvantaged by the changes. The Commission held that the plain language of the regulations indicated that the transitional provisions were meant to cover all employees who were employed under the old award at the time the new award was introduced. Therefore, the Commission concluded that the transitional protections were applicable to the employees in the present case.
Consequently, the Fair Work Commission ruled in favour of the Australian Medical Association (Queensland Branch) Inc. The Commission ordered that the transitional provisions outlined in the Fair Work Regulations 2009 be applied to the employees who were employed under the old award at the time the new award came into effect. This decision ensured that these employees were entitled to the benefits and protections specified in the transitional provisions, thereby upholding the intent of the legislation to safeguard the rights of existing employees during the transition to a new modern award.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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