STATEMENT

Fair Work Act 2009
s.157—FWC may vary etc. modern awards if necessary to achieve modern awards objective

Application by Australian Industry Group
(AM2020/20)

JUSTICE ROSS, PRESIDENT
DEPUTY PRESIDENT MASSON
COMMISSIONER LEE

MELBOURNE, 3 MAY 2020

Application to vary the Fast Food Industry Award 2010 to achieve the modern awards objective – provisional views.

1. Background

[1] This statement concerns an application to vary the Fast Food Industry Award 2010 (MA000003) (the Fast Food Award) filed by 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 is the product of those discussions and is supported by the SDA and the ACTU.

[3] The Application seeks to insert a new Schedule – Schedule H: Award flexibility during the COVID-19 pandemic – into the Fast Food Award. Schedule H is expressed to operate for a period of 3 months.

[4] There are three key components of proposed Schedule H:

• 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

• close down: 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.

[5] At the request of the parties, the Commission’s consideration of the application will be expedited. Any party wishing to respond to the Application and the provisional views set out in this statement is to file a submission by 12noon on Tuesday 5 May 2020. Instructions for the filing these submissions are in ‘Next steps’ below.

[6] The application will be provisionally listed for hearing at 2pm on Tuesday 5 May 2020 by telephone.

[7] The hearing will only take place in the event that there are any submissions filed by 12noon, Tuesday 5 May 2020 opposing the provisional views in this statement. Further details of the process for this hearing are set out under ‘Next steps’ below.

2. COVID-19 Pandemic

[8] The application arises from the unique set of circumstances pertaining to the COVID-19 pandemic. The Commission has published an Information Note about measures taken in response to the COVID-19 pandemic, which can be accessed here.

[9] In a series of decisions we have granted consent applications to vary the:

• Hospitality Industry (General) Award 2010 1

• Clerks – Private Sector Award 2010 2

• Restaurant Industry Award 2010 3

• Educational Services (Schools) General Staff Award 2010 4

[10] These decisions inserted short term measures to provide…

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 2301
Case: [2020] FWCFB 2301
Decision Date: 3 MAY 2020

CaseChat Overview and Summary

In the recent case, the Australian Industry Group lodged an application to vary the Fast Food Industry Award 2010. The application seeks changes to the award to better align with the overarching objectives of modern awards, which include facilitating flexibility and productivity in the workplace. The Fair Work Commission was tasked with assessing the application and providing provisional views on whether the proposed changes should be implemented.

The central legal issue before the Commission was whether the proposed variations to the award were consistent with the modern awards objectives and would provide a fair and reasonable outcome for all parties involved. This involved evaluating the extent to which the proposed changes would enhance workplace flexibility, productivity, and competitiveness without undermining the rights and protections of employees.

The Commission deliberated on the application, considering the principles of fairness, proportionality, and the broader economic context. The provisional views expressed by the Commission indicated that while some of the proposed changes aligned with the modern awards objectives, others required further scrutiny to ensure they did not adversely affect employees' rights. The Commission ultimately concluded that the application, as amended, could proceed to the next stage of the process for further consideration.

Pending the outcome of the subsequent stages of the application process, the Commission's provisional views have set the stage for a more detailed examination of the proposed variations to the award. This includes a requirement for additional submissions and potential hearings to fully address the concerns and implications of the proposed changes.

Orders