Baking Manufacturers Industry Association of Australia

The Baking Manufacturers Industry Association of Australia brought an application to the Fair Work Commission under section 158 of the Fair Work Act 2009 to vary or revoke a modern award. The association sought to challenge provisions in the Baking Industry Award 2020 that they claimed were inconsistent with the provisions of the Fair Work Act. The Fair Work Commission was required to determine whether the association had demonstrated that the award provisions were inconsistent with the Act.

The central issue before the Commission was whether the provisions in question were indeed inconsistent with the Act, and if so, whether the association had met the threshold of demonstrating inconsistency to a sufficient degree to warrant variation or revocation of the award. The association argued that the award's provisions exceeded the scope permitted by the Act and were therefore invalid. The Commission considered the scope of the Act and the extent to which the award provisions aligned with or diverged from the Act.

The Commission found that while some of the provisions in the award did not align with the Act, the association had not demonstrated the necessary level of inconsistency to warrant revocation or variation of the award. The Commission held that the provisions in question, while not perfectly aligned, did not exceed the scope permitted by the Act to the extent that they should be revoked or varied. Consequently, the association's application was dismissed. The Commission emphasised that any variation or revocation of an award should be considered carefully to ensure that it does not undermine the balance intended by the Act between protecting workers and maintaining a fair and flexible workplace.