DECISION

Fair Work Act 2009
s.157—Application to vary or revoke a modern award

Australian Hotels Association
(AM2021/73)

Hospitality industry
JUSTICE ROSS, PRESIDENT DEPUTY PRESIDENT CLANCY COMMISSIONER BISSETT	MELBOURNE, 3 SEPTEMBER 2021

Application to vary modern award – insertion of loaded rates schedule – provisional view confirmed – award varied.

1. Background

[1] This decision concerns an application by the Australian Hotels Association (AHA) to vary the Hospitality Industry (General) Award 2020 (the Hospitality Award) (the Application).

[2] The background to the Application is set out in a Statement published on 27 July 2021 (the July 2021 Statement). 1 For present purposes, we need only note that the Application arose out of a process which was initiated by correspondence from the then Minister for Industrial Relations in which the Minister expressed the Government’s view that ‘… in the extraordinary circumstances that have been caused by the COVID pandemic … it would be in Australia’s economic best interest for the Fair Work Commission to use its powers under s.157(3)(a) … to undertake a process to ensure several priority modern awards in sectors hardest hit by the pandemic be amended.’2 The Hospitality Award was among the awards identified by the Minister as priority awards.

[3] On 10 December 2020, the President issued a Statement 3 commencing a process on the Commission’s own motion (the Award flexibility–Hospitality and retail sectors matter). At the commencement of the Award flexibility–Hospitality and retail sectors matter, the Commission published an information note on loaded rates, which is relevant to the present matter. Some further background material in respect of loaded rates is set out in the July 2021 Statement4 and need not be repeated here. It is sufficient for present purposes to note that, as a general proposition, workers paid loaded rates should not be financially worse off than workers who are not. It follows that a loaded rate must result in workers being paid the same or more than they would have been paid if the loaded rate did not apply. This also accords with the view expressed by the then Minister for Industrial Relations in his letter of 9 December 2020:5

‘… [w]hile ultimately any design of loaded rates would be up to the discretion of the Commission, it is the Government’s view that these rates may be optimally structured in a way that ensures workers are not financially worse off over time …’

[4] The Application seeks to incorporate a new schedule to provide ‘a simplified pay arrangement in the form of loaded rates to reduce administrative costs and risk arising from existing pay complexities’. A loaded rate refers to a higher rate of pay intended to incorporate, in part or in whole, penalty rates and other monetary benefits for which separate provision is made in the applicable modern award. The loaded rate is then paid for all hours worked instead of certain penalty rates (such as the penalty rates for Saturday and Sunday work).

[5] A…

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.

Keep reading for free

Create a free CaseChat account to read Australian Hotels Association and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2021] FWCFB 5371
Decision Date: 3 SEPTEMBER 2021

CaseChat Overview and Summary

In the Fair Work Commission, the Australian Hotels Association sought to vary a modern award to include a loaded rates schedule. The application was made in response to the current economic climate and the need to ensure fair wages for employees within the industry. The Australian Council of Trade Unions opposed the application, arguing that it would undermine the existing wage structure and negatively impact employees' rights.

The central legal issue before the commission was whether the proposed variation to the award, which included the loaded rates schedule, was in the best interests of the parties involved and aligned with the objectives of the Fair Work Act 2009. The commission had to consider whether the variation was necessary to achieve a fair and efficient workplace, and if it would maintain or improve the living standards of employees.

The commission found that the application was supported by substantial evidence, demonstrating the need for the loaded rates schedule in light of the current economic conditions. The commission acknowledged the importance of ensuring fair wages for employees while also maintaining a competitive and sustainable industry. The provisional view, which had previously been confirmed, was upheld, and the award was varied to include the loaded rates schedule. This decision aimed to strike a balance between the interests of employers and employees, ensuring fair wages and maintaining the viability of the industry.

As a result of the commission's decision, the award was varied to include the loaded rates schedule. This outcome recognises the need to adapt to the changing economic landscape while also protecting the rights and interests of employees within the industry. The final orders reflected the commission's determination to achieve a fair and balanced outcome for all parties involved.

Orders