[2011] FWA 7975

FAIR WORK AUSTRALIA

STATEMENT

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Part 2 of Schedule 5, item 6—Review of all modern awards (other than modern enterprise awards and State reference public sector modern awards) after first 2 years

Award Modernisation
(AM2012/1)

JUSTICE GIUDICE, PRESIDENT

MELBOURNE, 17 NOVEMBER 2011

[1] This statement deals with the review of modern awards required by the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Transitional Act). Pursuant to item 6 of Schedule 5 to the Transitional Act, Fair Work Australia must conduct a review of all modern awards, other than modern enterprise awards and State reference public sector modern awards, as soon as practicable after the second anniversary of the Fair Work (safety net provisions) commencement day. The Fair Work (safety net provisions) commencement day was 1 January 2010. Therefore the tribunal must conduct the review as soon as practicable after 1 January 2012.

[2] Pursuant to item 7 of Schedule 5 to the Transitional Act, Fair Work Australia may also review transitional arrangements in a modern award. It may only do so if the award contains a term providing for a review of those provisions, provided the term was included in the award in the award modernisation process. Modern awards with transitional provisions include a review term. It is convenient to deal with any proposals to vary transitional provisions under item 7 in conjunction with the review of modern awards required by item 6.

[3] At this stage it is anticipated that the review will be conducted by members of Fair Work Australia sitting alone to deal with awards, including transitional provisions where appropriate, on an individual basis. A Full Bench may be constituted to deal with a matter or matters of general significance.

[4] The review will be based mainly on applications to vary modern awards. In some cases Fair Work Australia may also propose variations. It is likely that these proposed variations will be limited to technical and drafting matters.

[5] Where, in relation to a particular modern award, there is no application to vary and Fair Work Australia does not propose any variations, in normal circumstances there will not be any public proceedings in relation to the review of that modern award.

[6] Any application to vary a modern award as part of the review should be filed by Thursday 8 March 2012. The application should contain grounds in support of the application, a brief outline of the submissions to be made and statements of any evidence to be called. A draft application form has been prepared for the purposes of the review. The form can be downloaded from the Fair Work Australia website. Any application for a determination to vary a modern award as part of the review which is not lodged by 8 March 2012 will not be dealt with in the review unless Fair Work Australia decides otherwise.

[7] After 8 March 2012 a procedure and timetable will be adopted which are appropriate to the circumstances - including the nature of any proposed variations.

[8] It is anticipated that the internet will be used extensively during the review. A special review page will be established for each modern award. The existing subscriber list for the modern award in question will also be the initial subscriber list for the special review page. Subscribers will be notified by email of all relevant postings to the page including applications, submissions and decisions.

PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Fair Work Australia is required to review all modern awards under item 6 of Schedule 5 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009. The review must take place as soon as practicable after the second anniversary of the commencement day of the Fair Work (safety net provisions), which was 1 January 2010. This means the review must take place after 1 January 2012. The review must also consider any transitional arrangements in the modern awards, provided the award contains a term for such a review and the term was included during the award modernisation process. The review will be conducted mainly by members of Fair Work Australia sitting alone, with a Full Bench reserved for matters of general significance. The review will be based on applications to vary modern awards, with proposed variations likely to be limited to technical and drafting matters. In the absence of any application or proposed variation, there will not be any public proceedings.

The legal issues before Fair Work Australia were the requirements for the review of all modern awards and any transitional arrangements in those awards, as mandated by the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009. The tribunal had to determine the scope of the review, the process for conducting the review, and the procedures for any applications to vary the awards. The tribunal also had to consider the role of the internet in the review process, including the establishment of special review pages for each modern award and the use of existing subscriber lists.

Fair Work Australia determined that the review of modern awards would be conducted mainly by members sitting alone, with a Full Bench reserved for matters of general significance. The review would be based mainly on applications to vary modern awards, with proposed variations likely to be limited to technical and drafting matters. The tribunal anticipated that the internet would be used extensively during the review, with special review pages established for each modern award and subscribers notified by email of all relevant postings. Any application to vary a modern award as part of the review must be filed by 8 March 2012 and must contain grounds in support of the application, a brief outline of the submissions to be made and statements of any evidence to be called. After 8 March 2012, a procedure and timetable will be adopted appropriate to the circumstances.

Fair Work Australia made a determination in relation to the review of all modern awards and any transitional arrangements in those awards. The review will be conducted by members of Fair Work Australia sitting alone, with a Full Bench reserved for matters of general significance. The review will be based on applications to vary modern awards, with proposed variations likely to be limited to technical and drafting matters. The tribunal will use the internet extensively during the review, with special review pages established for each modern award and subscribers notified by email of all relevant postings. Any application to vary a modern award as part of the review must be filed by 8 March 2012.

Award Modernisation

FAIR WORK AUSTRALIA

STATEMENT

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established