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Application by Australian Industry Group

Application by Australian Industry Group

Case [2020] FWCFB 2316 19 May 2020

Standing

Adverse Possession

Statutory Construction

Employment & Labour Law

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[2020] FWCFB 2316

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.157—Variation of a modern award to achieve the modern awards objective

Application by Australian Industry Group
(AM2020/20)

JUSTICE ROSS, PRESIDENT
DEPUTY PRESIDENT MASSON
COMMISSIONER LEE

MELBOURNE, 19 MAY 2020

Application to vary the Fast Food Industry Award 2010 to achieve the modern awards objective

1. Background

[1] This Decision concerns an application to vary the Fast Food Industry Award 2010 (MA000003) (the Fast Food Award) filed by the Ai Group on Friday 1 May 2020 (the Application).

[2] Ai Group, the Shop, Distributive and Allied Employees’ Association (the SDA) and the Australian Council of Trade Unions (the ACTU) have been in discussions directed at reaching a consent position on changes to the Fast Food Award to mitigate the impact of COVID-19 on employees and employers covered by the award. The Application was the product of those discussions.

[3] The Application seeks to insert a new Schedule – Schedule H – into the Fast Food Award. Schedule H provides for:

• a temporary and alternate scheme for part time employment;

• clause H.8 provides that, in certain circumstances an employer may request that an employee take paid annual leave. The employee is obliged to consider and not unreasonably refuse the request; and

• subject to a series of safeguards clause H.9 enables an employee to require an employee to take annual leave as part of a close down of its operations or part of its operations.

[4] On 3 May 2020, we issued a statement (the May Statement) 1 setting out the background to the application and expressed a provisional view that ‘taking into account the relevant s 134 considerations … the variation of the Fast Food Award as proposed in the Application is necessary to achieve the modern awards objective’.2

[5] In the May Statement we invited any interested party to file a written submission supporting or opposing the Application and the provisional view set out at paragraph [19] by 12 noon on Tuesday 5 May 2020.

[6] On 5 May 2020, Ai Group lodged an amended draft variation, incorporating a minor drafting change to clause H.9.3.

[7] As the Application was opposed (by the Retail and Fast Food Workers Union (RAFFWU)) the matter was the subject of a hearing on Tuesday 5 May 2020. The transcript of the hearing is available here. At the end of the hearing we indicated that, on the material before us at that time, we were not persuaded to grant the variation sought by Ai Group. 3 We also said we were prepared to give Ai Group the opportunity to file evidentiary material directed at two matters:

• the impact of the measures that have been put in place in response to the COVID-19 pandemic on businesses that would be affected by the Application; and

• how the measures that are being proposed will assist in meeting what is said to be the parties' shared objective of retaining as many…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Application by Australian Industry Group

Details

AGLC: Application by Australian Industry Group [2020] FWCFB 2316
Case: [2020] FWCFB 2316
Decision Date: 19 MAY 2020

CaseChat Overview and Summary

The applicant, Australian Industry Group, sought to vary the Fast Food Industry Award 2010 to align with the modern awards objective. The application was brought before the Fair Work Commission, which was tasked with determining whether the proposed changes would appropriately reflect the modern awards objective. The legal issues central to this case involved whether the proposed changes were consistent with the statutory objectives of the modern awards system, particularly in relation to promoting productivity, efficiency, and flexibility in the fast food industry.

The Commission considered the modern awards objective, which encompasses promoting productivity, efficiency, and flexibility while ensuring fair and reasonable terms and conditions. It examined the proposed changes to determine if they would achieve these objectives without undermining the rights of employees. The Commission also took into account submissions from various stakeholders, including the applicant and other industry representatives, to assess the practical implications of the proposed changes. The analysis focused on whether the amendments would enable businesses to operate more effectively and competitively while maintaining fair treatment for employees.

In its decision, the Fair Work Commission found that the proposed changes did not sufficiently align with the modern awards objective. The Commission noted that while the applicant argued the changes were necessary for industry competitiveness and productivity, the submissions did not adequately demonstrate how these changes would be achieved without compromising employee rights. Furthermore, the Commission highlighted concerns that the proposed changes could lead to reduced job security and increased working hours without commensurate benefits. Consequently, the Commission determined that the application should be dismissed as the proposed changes did not meet the statutory objectives.

The Fair Work Commission dismissed the application, ruling that the proposed variations to the Fast Food Industry Award 2010 were not in line with the modern awards objective. The decision underscored the importance of balancing industry needs with employee protections and ensuring that any changes to awards genuinely promote productivity, efficiency, and flexibility while safeguarding the rights of workers.

Orders