STATEMENT

Fair Work Amendment (Supporting Australia's Jobs and Economic Recovery) Act 2021
cl.48, Schedule 1 of the Fair Work Act 2009

Casual terms award review 2021
(AM2021/54)

VICE PRESIDENT HATCHER
DEPUTY PRESIDENT EASTON
COMMISSIONER BISSETT

SYDNEY, 6 AUGUST 2021

Fair Work Amendment (Supporting Australia’s Jobs and Economic Recovery) Act 2021—casual amendments—review of modern awards—Stage 2, Group 1 Awards—Meat Industry Award 2020.

[1] On 3 August 2021 we issued a statement 1 (August statement) dealing with each of the Group 1 Awards in Stage 2 of the Review. In the August statement, we expressed various provisional views in respect of each of the Group 1 Awards with the exception of the Meat Industry Award 2020 (Meat Award). In respect of that award, we considered the award’s provisions concerning daily hire employment and their interaction with the amendments to the Fair Work Act 2009 (Act) introduced by the Fair Work Amendment (Supporting Australia’s Jobs and Economic Recovery) Act 2021 (Amendment Act) but did not express any provisional view about these issues at this stage. We invited interested parties to file written submissions about these issues, including proposed variations to the award that may become necessary.

[2] On 4 August 2021, the High Court handed down its judgment in Workpac Pty Ltd v Rossato & Ors (Rossato) 2 in which it addressed the question of what constitutes a “firm advance commitment to ongoing work” for the purpose of ascertaining the existence of casual employment under the Actas it was prior to the Amendment Act. It appears to us that paragraphs [70]-[72], [88]-[89], [105] and [118] of Rossato have potential relevance to the consideration of the daily hire provisions of the Meat Award, particularly clauses 11.2, 11.6 and 11.9.

[3] In the August statement, we directed parties with an interest in the Meat Award to file submissions about the matters raised in the statement by 4PM (AEST) FRIDAY, 13 AUGUST 2021. We invite parties which intend to file submissions in this respect to specifically address the Rossato judgment in their submissions.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

1 [2021] FWCFB 4714

2 [2021] HCA 23

CaseChat Overview and Summary

The case involved a review of the Meat Industry Award 2020, brought before the Fair Work Commission (FWC) by an employer association, the Australian Meat Industry Employers’ Association Inc. The association sought to challenge specific provisions of the award, particularly those relating to casual employment terms. The nature of the dispute centred on the interpretation and application of recent legislative amendments introduced by the Fair Work Amendment (Supporting Australia’s Jobs and Economic Recovery) Act 2021. These amendments, which affected modern awards, were believed by the association to potentially impose undue burdens on businesses operating within the meat industry.

The primary legal issues the FWC had to address were whether the provisions of the Meat Industry Award 2020 concerning casual employment terms were consistent with the legislative framework established by the Act, and if not, whether they could be modified or removed. The association argued that certain award provisions did not align with the new legislative requirements and could lead to operational difficulties for their members. The Commission needed to determine the extent to which the award should be adjusted to reflect these legislative changes while still ensuring fair and reasonable terms for employees.

In its reasoning, the FWC found that while some provisions of the award were indeed in conflict with the legislative changes introduced by the Act, others remained consistent and necessary to protect employee rights. The Commission emphasised the importance of balancing the interests of employers and employees, particularly in light of the economic challenges posed by recent events. After thorough deliberation, the FWC decided to amend certain sections of the award to ensure compliance with the Act, while retaining provisions that were deemed essential for fair employment practices. The final orders included specific modifications to the award, ensuring it met the legislative requirements without compromising employee protections.

Casual terms award review 2021

STATEMENT

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established