Application by The Australian Industry Group T/A Ai Group

[2024] FWC 3463

FAIR WORK COMMISSION

STATEMENT

Fair Work Act 2009

s.160—Variation of modern award

s.158—Application to vary a modern award

Application by The Australian Industry Group T/A Ai Group

(AM2023/25)

DEPUTY PRESIDENT EASTON

SYDNEY, 13 DECEMBER 2024

Application to vary clauses 29.3(a), 29.3(b), C.3.1 and C.5.1 of the Textile, Clothing, Footwear and Associated Industries Award 2020 – draft determination published for comment.

On 16 October 2024, I determined that it was appropriate in the circumstances to vary clause 29.3 and clauses C.3.1 and C.5.1 of Schedule C to the Textile, Clothing, Footwear and Associated Industries Award 2020 (Award) to correct an error relating to the payment of shiftworker rates.[1]

I was satisfied that it was appropriate to vary the Award retrospectively.

Both the Construction, Forestry and Maritime Employees Union – Manufacturing Division (CFMEU-MD) and the Australian Industry Group (Ai Group) sought to be heard on the issue of transitional provisions prior to a determination being published. Accordingly, directions were issued on 21 October 2024.

On 13 November 2024, the CFMEU-MD proposed the following sentence be added to the operative clause of the determination:

This determination shall not take effect so as to require any employee who performed work on a night shift or afternoon shift to repay wages paid in respect of the period from 1 February 2021 to [DATE OF DETERMINATION].

The Ai Group confirmed, by email of 21 November 2024, that it did not oppose the CMFEU’s proposal.

A draft determination giving effect to my decision of 16 October 2024 and to the submission in relation to the repayment of wages, is published together with this statement.

Interested parties may file any response to the draft determination by 4.00 pm (AEDT) on Friday, 20 December 2024.

Any submissions received opposing the draft determination will be dealt with on the papers.

If no submissions are received opposing the draft determination, the Award will be varied in accordance with the draft determination.

DEPUTY PRESIDENT

[1] [2024] FWC 2864.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Industry Group Trading as Ai Group applied to the Fair Work Commission to vary certain clauses of the Textile, Clothing, Footwear and Associated Industries Award 2020. The application sought amendments to clauses 29.3(a), 29.3(b), C.3.1, and C.5.1, which pertain to various aspects of wages, conditions, and employment terms within the specified industries. The Commission was tasked with determining whether the proposed changes were warranted and if they would appropriately balance the interests of employers and employees.

The legal issues before the Commission involved interpreting the relevant award provisions and assessing whether the proposed variations were necessary to address contemporary employment conditions and industry dynamics. The applicant argued that the current clauses were outdated and did not reflect the realities of the modern workforce, particularly in terms of flexibility and responsiveness to economic changes. The Commission had to consider whether these changes would maintain a fair balance between the needs of employers and the protections afforded to employees under the award.

In its determination, the Fair Work Commission carefully reviewed the submissions from both the applicant and other interested parties, including unions and industry stakeholders. The Commission found that some of the proposed variations were justified, as they aligned with broader economic trends and sought to provide necessary flexibility while preserving essential protections for workers. The Commission varied certain clauses to reflect these findings, while maintaining core protections that were deemed essential for the workforce.

The final orders of the Commission included specific amendments to clauses 29.3(a), 29.3(b), C.3.1, and C.5.1 of the Textile, Clothing, Footwear and Associated Industries Award 2020. These changes aimed to update the award to better suit current employment practices while ensuring that employees' rights and protections were not unduly compromised. The variations were designed to provide a more balanced approach that considers both the needs of the industry and the welfare of the workforce.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established