Casual terms award review 2021
[2021] FWCFB 3555
•21 JUNE 2021
| [2021] FWCFB 3555 |
| FAIR WORK COMMISSION |
STATEMENT |
Fair Work Act 2009
Clause 48 of Schedule 1
Casual terms award review 2021
(AM2021/54)
JUSTICE ROSS, PRESIDENT | MELBOURNE, 21 JUNE 2021 |
Fair Work Amendment (Supporting Australia's Jobs and Economic Recovery) Act 2021 — casual amendments — review of modern awards.
[1] In our Statement and Directions issued on 23 April 2021, 1 we indicated that we would express provisional views concerning the questions posed in the Discussion Paper published on 19 April 20212 before the scheduled hearing dates. In our further Statement issued on 9 June 20213 we stated that we would defer expressing any provisional views until after the parties had filed any reply submissions (which were due by 4.00pm on 16 June 2021).4
[2] The parties have now filed their reply submissions. Those submissions are summarised in the Submission Summary Document in Attachment A to this Statement.
[3] Our provisional views concerning the questions posed in the Discussion Paper and one other matter, having regard to all the submissions filed to date, are contained in Attachment B to this Statement.
[4] The matter is listed for hearing before us on 24-25 June 2021. Parties intending to participate in the hearing are invited to identify in their oral submissions any of the provisional views they wish to take issue with and to focus their submissions on those matters.
PRESIDENT
Printed by authority of the Commonwealth Government Printer
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Attachment A – Submissions Summary Document
1. Background
[1] On 27 March 2021 the Fair Work Act 2009 (Cth) (Act) was amended by Schedule 1 to the Fair Work Amendment (Supporting Australia’s Jobs and Economic Recovery) Act 2021 (Cth) (Amending Act). The amendments included introducing a definition of ‘casual employee’ in s.15A of the Act and casual conversion arrangements in Division 4A of Part 2-2 of the Act (casual conversion NES).
[2] The Casual Terms Review is being conducted in 2 stages. In the first stage this Full Bench will consider the nature and scope of the Review, and review ‘relevant terms’ (as defined in cl.48 of Schedule 1 of the Act) in an initial group of 6 modern awards (Stage 1 awards). The 6 Stage 1 awards are the:
• General Retail Industry Award 2020 (Retail Award)
• Hospitality Industry (General) Award 2020 (Hospitality Award)
• Manufacturing and Associated Industries and Occupations Award 2020 (Manufacturing Award)
• Educational Services (Teachers) Award 2020 (Teachers Award)
• Pastoral Award 2020 (Pastoral Award), and
• Fire Fighting Industry Award 2020 (Fire Fighting Award).
[3] On 19 April 2021 the Commission published a Discussion Paper prepared by staff of the Commission (Discussion Paper) which sought to identify relevant terms in the initial 6 awards, discussed the interaction of those terms with the Act as amended, and raised questions for interested parties to consider.
[4] On 23 April 2021 we issued a Statement and Directions in relation to the Casual Terms Review. 5 The Directions required any interested party to lodge submissions by 4.00pm on 24 May 2021 responding to the questions in the Discussion Paper and addressing any other issues the parties wished to raise. The Directions also required any interested party proposing a variation of a Stage 1 award to lodge a draft award variation determination.
[5] Twenty-four interested parties lodged submissions in Stage 1 of the Casual Terms Review:
• Australian Business Industrial and NSW Business Chamber (ABI)
• Australian Chamber of Commerce and Industry (ACCI)
• Australian Council of Trade Unions (ACTU)
• Australian Education Union (AEU)
• Australian Hotels Association (AHA)
• Australian Industry Group (Ai Group)
• Associations of Independent Schools (AIS)
• Allstaff Australia (Allstaff)
• Australian Manufacturing Workers’ Union (AMWU)
• Australian Nursing and Midwifery Federation (ANMF)
• Australian Workers Union (AWU)
• Construction, Forestry, Maritime, Mining and Energy Union– Manufacturing Division (CFMMEU – Manufacturing)
• Construction, Forestry, Maritime, Mining and Energy Union- Mining and Energy Division (CFMMEU – M&E)
• Birch Carroll and Coyle Limited and Others (Cinema Employers)
• Community and Public Sector Union (CPSU)
• Flight Attendants’ Association of Australia (FAAA)
• Housing Industry Association (HIA)
• Independent Education Union (IEU)
• Master Grocers Australia (MGA)
• National Farmers’ Federation (NFF)
• National Retail Association (NRA)
• Shop, Distributive and Allied Employees Association (SDA)
• United Firefighters Union (UFU)
• United Workers’ Union (UWU)
[6] These submissions are summarised under each of the 32 questions in the Submission Summary Document published on 9 June 2021.
[7] On 9 June 2021 we issued a Statement 6 (the June Statement) in which we made some observations about the positions put by interested parties in response to the questions posed in the Discussion Paper.
[8] This document summarises the reply submissions and expresses our provisional views in respect of a range of matters.
2. Reply submissions
[9] Submissions in reply were made by the following:
• ABI
• ACCI
• AEU
• Ai Group
• AMWU
• ACTU
• AHA
• AWU
• CFMMEU (Manufacturing) 7
• CFMMEU (Construction and General Division) (CFMEU C&G) 8
• Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union (CEPU) 9
• IEU
• Industrial Relations Victoria (IRV)
• MGA
• NRA
• SDA
[10] In the June Statement we set out several observations about the positions put by interested parties (see [12]-[115]). The reply submissions in respect of these observations are set out below. The summary which follows primarily seeks to record the key positions of interested parties in response to the observations made in the June Statement and does not attempt to summarise their detailed reasoning.
2.1 Meaning of ‘consistent’, ‘uncertainty or difficulty’ and ‘operate effectively’
1. Is it the case that the Commission does not have to address the considerations in s.134(1) of the Act in varying an award under Act Schedule 1 cl.48(3), but an award as varied under cl.48(3) must satisfy s.138 of the Act?
[11] In the June Statement the Full Bench observed that there was general consensus amongst interested parties that:
• on a strict reading, s.134 of the Act does not apply to the Casual Terms Review as the Commission is not exercising its modern award powers, but
• any award as varied under Schedule 1 cl.48(3) of the Act must satisfy s.138 of the Act.
[12] In its reply submission ACCI clarified its position as follows:
‘It is uncontroversial that cl.48(2)(b) requires the Casual terms review to consider whether there is ‘any uncertainty or difficulty relating to the interaction’ between an award containing a relevant term and the Act as amended. Where there is such uncertainty or difficulty, cl.48(3) requires that the award be varied to make it ‘operate effectively’ with the Act as amended.
An award, as varied pursuant to cl. 48(3) of Schedule 1, must satisfy s. 138 of the Act, as the requirement imposed by this section is an ongoing one, which at all times means an award must only include terms to the extent necessary to achieve the modern awards objectives. Accordingly, the Commission must give consideration to the modern awards objectives prescribed by s.134(1) of the Act if pursuant to clause 48(3) of the Act the Commission is required to vary an award for the purposes of the Review, in order to ensure that s 138 of the Act is satisfied…
…the Commission decides that it must vary a modern award under the Review, it must also be satisfied that the proposed variation goes no further than what is necessary to achieve the modern awards objectives as set out in s 134(1).
Practically therefore the appropriate point for the Commission to consider the modern awards objectives in s134(1) during the Review is when considering a proposed variation/s, either put forward by a party or at its own initiative.’ 10
[13] In its reply submission ABI submits that the parties are broadly aligned with respect to this question.
[14] In its reply submission, Ai Group agrees with the observation in the June Statement and broadly concurred with the accuracy of the two propositions; but suggest that the relevance of s.134 to the conduct of the Review ‘is somewhat more nuanced’. At [21] – [32] of its reply submission Ai Group submits:
‘… we seek to clarify that it is our view that clause 48 does not expressly require the Commission to ‘address’ the considerations flowing from s.134(1) of the Act in varying an award pursuant to clause 48. However, we similarly say that they are far from irrelevant considerations in the conduct of the Review...
The power to make a determination to vary an award in the manner contemplated by clause 48 flows from clause 48 itself. Consequently, the Commission is not exercising a modern award power as contemplated by s.134(2) when it varies an award and the Commission is therefore not compelled to apply the modern awards objective pursuant to s.134(2).
However, depending upon the nature of the variation contemplated, a consideration of the matters identified at s.134(1) may be necessitated in the Commission’s deliberations. Relevantly, the requirement flowing from clause 48(3) that the Commission ‘make a determination varying the modern award to make the award consistent or operate effectively with the Act as so amended’ will potentially require, at least in some instances, that the Commission ensure that any such variation not result in the inclusion or retention of awards terms that would be contrary to the operation of s.138. This would in turn require a consideration of the matters identified in s.134(1). A determination that would vary an award in a manner that would cause it to be inconsistent with s.138 would not meet the requirements of clause 48(3), as it would not result in the award being consistent or operating effectively with the Act, as amended.
It also appears to us that s.134(1) provides an ongoing obligation upon the Commission to ensure that modern awards, together with the NES, provide a fair and relevant minimum safety net of terms and conditions, taking into account the matters identified in that section. That is, we suggest that the provision potentially does more than merely define what constitutes the modern awards objective. If the provision operates in this manner, it creates an ongoing obligation to ensure that the content of awards align with the requirements of s.138. Viewed in this context, s.134(1) should guide the approach to be taken by the Commission in varying awards pursuant to clause 48, even though s.134(2) does not require that the modern awards objective applies to the exercise of a power under clause 48.
Further, the exercise of the Commission’s discretion about the appropriate form that any determination issued under clause 48 should take, should be exercised taking into consideration the broader content and purpose of the legislative scheme, including in particular the modern awards objective and the object in s.3 of the Act to ensure a ‘guaranteed safety net of fair, relevant and enforceable minimum terms and conditions through….modern awards 11...
Regardless of any divergence of approach between the aforementioned peak councils as to the scope or operation of clause 48, we doubt that it would not be common ground that the Commission should seek to ensure that awards, as varied through the current process, comply with s.138. We certainly urge the adoption of this approach.
More broadly, the Commission should seek to approach the Review in a manner that seeks to ensure that awards constitute a fair and relevant minimum safety net of terms and conditions as contemplated by s.134(1). In this respect, we submit that, contrary to the approach urged by the ACTU 12, the Commission can and should draw on its powers under Part 2-3 of the Act to supplement the jurisdiction contemplated for the purposes of the Review.
To the extent that the Commission considers using its general modern award powers, it should of course do so in a way that is reflective of the material before it and the limited timeframes for the Review. Nonetheless, there should not be some presumed imperative to maintain the current content of modern awards (in substance if not form) regardless of the changed circumstances of the amendments to the Act. In this regard we respond to the ACTU’s submissions regarding the history and context of current award terms and observe that blindly retaining current provisions on the assumption that they are a product of their ‘unique industrial history’ or an ‘outcome of industry specific submissions or decisions’ should not be seen as precluding a reconsideration of current terms of the safety net in light of the modified legislative framework.
The recent legislative reforms are a catalyst for the Commission to ensure that the awards complement and facilitate a greater level of clarity and consistency in relation to the regulation of casual employment introduced by the legislature. Whilst we do not seek to exclude the possibility that there are justifiable award specific reasons for adopting different approaches to matters such as the definition of ‘casual employee’ or the approach to be taken in relation to casual conversion; such differences should not be retained for reasons of historical inertia absent some critical assessment of the necessity for their retention.’ 13
[15] The ACTU, supported by various unions, submits as follows:
‘The objects of the FW Act envision a role for both the NES and modern awards in establishing a guaranteed safety net. Accordingly, the ACTU submits that a purposive approach to constructing the term “inconsistent” warrants a construction which would allow for modern awards to contain terms that are not identical to the NES. This contention is further reinforced by the FW Act s 55, which allows for the inclusion in modern awards of terms which are ancillary, incidental or supplementary to the NES.
In this light, the ACTU submits that modern award terms should not be considered to be “inconsistent” merely because they differ from the newly enacted provisions of the FW Act, but rather where there is a fundamental tension or incompatibility between their operation and the operation of the NES.’ 14
[16] In reply to the ACTU submissions, Ai Group submits that ‘there is no cause for reading down the meaning of ‘consistent’ in clause 48 to essentially require nothing more than an assessment of whether there is an incompatibility in the operation of the respective provisions’. 15
[17] Ai Group also contends that ‘neither the contemplation in the objects of the Act of a safety net comprised of both awards and the National Employment Standards (NES) or the existence of s.55 justifies the ACTU’s proposed approach to interpreting what is meant by ‘consistent’ in clause 48. The mere fact that it may be possible to craft award terms that supplement the NES does not mean that the legislature intended or even contemplated that the Commission might adopt such an approach in the course of the Review’. 16
[18] The SDA advances the following submission in relation to the operation of clause 48(3) that:
‘… it is an inference properly to be drawn from the language of clause 48 of the Amending Act that a relevant term does not need to be identical to relevant provisions of the Act as amended in order to be retained. A relevant term may in fact confer or provide for different (but not inconsistent) or better rights or entitlements other than those for which the Act provides without necessarily triggering any obligation on the part of the FWC to determine to vary the award.’ 17
[19] In reply, Ai Group submits that ‘the assessment of whether terms are ‘consistent’ with the Act, as amended, should not turn on whether the award deliver ‘better’ rights or entitlements’ but should instead be approached in the manner proposed in Ai Group’s initial submissions.
[20] In its reply submission, Ai Group relies on [47] to [59] of its initial submission and urges an interpretation of clause 48(2)(a) that ‘emphasises a need to consider whether there is substantive alignment between the approach to matters dealt with in the Amending Act and the awards’. Ai Group notes that this would include the new definition of ‘casual employee’ and the new NES provisions relating to casual conversion. Ai Group contends that such an approach is supported by an ordinary reading of the relevant words of the statute, having regard to their context and legislative purpose.
[21] At [49] of its initial submission, Ai Group set out the reasoning in support of its submission:
‘… an ordinary reading of clause 48(2)(a) of Schedule 1 to the Act suggests that it requires a consideration of whether the ‘relevant term’ ‘accords’ and ‘is compatible with’ the Act. Crucially, we contend that it also requires a consideration of whether the relevant terms are ‘constantly adhering to the same principle or course’ as adopted in the Act. By extension, clause 48(3)(a) is satisfied if the ‘relevant term’ does not accord with or is not compatible with the Act, or if it in some way departs from the principles or course adopted in the Act in relation to the same subject matter.’
[22] In its reply submission the SDA notes that the position of Ai Group, the NRA, ACCI, and ABI is broadly consistent with the SDA’s position.
[23] The SDA also submits that the position of the MGA is not supported by the Act, the objects of the Act with reference to the explanatory memoranda and relevant Minister’s speeches nor the Discussion Paper of the FWC.
[24] The AMWU relies on its initial submissions and the submissions of the ACTU to the extent that these are contrary to the submissions of the Employers.
[25] The IEU relies on the reasoning in paragraphs [17]–[22] of its initial submissions.
2.2 The Fire Fighting Award
2. Is an award clause that excludes casual employment (as in the Fire Fighting Award) a ‘relevant term’ within the meaning of in Act Schedule 1 cl.48(1)(c), so that the award must be reviewed in the Casual terms review?
[26] In the June Statement the Full Bench observed that, of the interested parties that responded to this question, there was general consensus that:
• the Fire Fighting Award does not contain any relevant terms within the meaning of the Act Schedule 1, cl.48(1)(c)
• the Commission has no jurisdiction to review the Award under cl.48
• in the alternative, if the Fire Fighting Award does contain a relevant term, there is no inconsistency with the Act as amended and no uncertainty or difficulty relating to the interaction between the Award and the Act as amended, and
• no further consideration of the Fire Fighting Award should occur as part of the Casual Terms Review.
[27] We also noted that some of the submissions address a similar issue in relation to the Black Coal Mining Award 2010. This Award will be considered in Stage 2 of the Casual Terms Review.
[28] In its reply submission the ACTU relies on its earlier submission and supports the submission of the UFU and the CFMMEU – Mining and Energy Division.
[29] The ACTU also notes that the UFU, AI Group, ACCI, and ABI submit that there is no relevant term, with the UFU, AI Group and ACCI submitting that at any rate there is no uncertainty or inconsistency.
[30] The ACTU submits that, in the absence of any party pressing for its inclusion, the Fire Fighting Award should be excluded from the review on jurisdictional grounds, and the relevant principle so determined.
[31] In its reply submission ABI submits that ‘there appears to be a general consensus about the answer to this question and no further submissions are necessary’. 18
2.3 Definitions of casual employee/casual employment
3. Has Attachment 1 to the Discussion Paper wrongly categorised the casual definition in any award?
[32] In the June Statement the Full Bench observed that there was broad agreement with the categorisation of the casual definitions in awards in Attachment 1 to the Discussion Paper.
[33] However, some parties raised issues or queries in relation to the categorisation of the following awards:
• Building and Construction General On-Site Award 2020
• Car Parking Award 2020
• Children’s Services Award 2020
• Cleaning Services Award 2020
• Corrections and Detention (Private Sector) Award 2020
• Hydrocarbons Field Geologists Award 2020
• Live Performance Award 2020
• Market and Social Research Award 2020
• Mobile Crane Hiring Award 2020
• Nursery Award 2020
• Pest Control Industry Award 2020
• Ports, Harbours and Enclosed Water Vessels Award 2020
• Racing Clubs Events Award 2020
• Racing Industry Ground Maintenance Award 2020
• Registered and Licensed Clubs Award 2020
• Storage Services and Wholesale Award 2020, and
• Transport (Cash in Transit) Award 2020.
[34] These matters will be considered when those awards are reviewed in Stage 2 of the Casual Terms Review.
[35] Further, in relation to the awards being considered in Stage 1 of the Review, while the NFF and the SDA agreed or did not object to the categorisation of clause 11.1 of the Pastoral Award and the Retail Award respectively, they queried whether clause 11.2 of those Awards define casual employment and asserted to the effect that those clauses should not be regarded as relevant to or be disturbed by the Review.
[36] In the June Statement we said that we would consider these submissions further following the filing of any submissions in reply.
[37] In its reply submission the NRA disagrees with the position advanced by the SDA and submits:
‘Whilst clause 11.2 could, on some readings, be taken as a directive to an employer rather than a definition of casual employment in and of itself, the practical effect of clause 11.2 is to denote as a casual employee any individual who does not fit within the definitions of full-time or part-time employment.’ 19
[38] The MGA adopts a similar position and submits that cl.11.2 of the Retail Award is a relevant term because it attempts to define casual employment in reference to what it is not and does not agree with the SDA’s position that cl.11.1 and 11.2 of the Retail Award are ‘wrongly categorised’ as ‘engaged as a casual’ and ‘residual category’ type definitions.
[39] In its reply submission, Ai Group agrees with the proposition that clause 11.2 of the Retail Award does not define or describe casual employment, as contemplated by cl.48(1)(c)(i), but submits that:
‘… falls within the scope of clause 48(1)(c)(ii) in that it deals with the circumstances in which casuals are to be employed; those circumstances being that the employee is not covered by clause 9 or clause 10 of the award. Clause 11.2 also arguably falls within the ambit of clause 48(1)(c)(iii), as we have previously submitted.
Regardless of these technicalities, clause 11.2 is obviously interconnected with clause 11.1. In reviewing clause 11.1, it is appropriate that the Commission also consider other provisions of the award that operate in conjunction with ‘relevant terms’ and whether there is, as a consequence of the combined operation of these provisions, any difficulty or uncertainty relating to the interaction between the award and the Act, as amended. Further, the Commission is not limited to making a determination varying only ‘relevant terms’. It may vary clause 11.2 in order to make the award consistent or operate effectively with the Act, if it makes the finding contemplated in clause 48(3)(a) or 48(3)(b).’ 20
[40] Ai Group also confirmed its view that varying the definition of casual employment under the Retail Award to align with the new statutory definition would ameliorate problems associated with the continued operation of clause 11.2 in the changed statuary context and submits that if the Commission does not align the definition of casual employee in the Retail Award with that in s.15A of the Act then clause 11.2 should be deleted.
[41] In reply the SDA notes the respective position of the parties.
4. For the purposes of Act Schedule 1 cl.48(2):
• is the ‘engaged as a casual’ type casual definition (as in the Retail Award, Hospitality Award and Manufacturing Award) consistent with the Act as amended, and
• does this type of definition give rise to uncertainty or difficulty relating to the interaction between these awards and the Act as amended?
[42] In the June Statement the Full Bench observed that most submissions contended that the ‘engaged as a casual’ type casual definition (as in the Retail, Hospitality and Manufacturing Awards) was not consistent with the Act as amended and gives rise to uncertainty or difficulty relating to the interaction between the Awards and the Act as amended (or at the least, has the potential to do so).
[43] The position of Ai Group at [81] to [85] of their initial submissions is broadly consistent with the position of the ACTU at paragraphs [44] to [45] of their initial submissions. ACCI and ABI advance similar submissions.
[44] The NRA submits that a concurrent interpretation of both definitions is open to the Commission; although it accepts at that it could give rise to uncertainty.
[45] The MGA describes the casual definition in the Retail Award as ‘inadequate’ and refers to the advantages of the new definition in terms of clarity.
[46] The only party to put a substantively different view was the SDA which submitted, in the context of the Retail industry, that the ‘engaged as a casual’ type definition in the Retail Award does not, in and of itself, create inconsistency or uncertainty or difficulty with the Act as amended.
[47] In reply the SDA submits that ‘it is not, at this early stage, clear whether the ‘engaged as such’ definition is inconsistent with the Amending Act’ and that ‘were the FWC to find that the definitions were in fact inconsistent, that any variation should be constrained in its effects to the objects of the Act.’ 21
[48] In its reply submission the ACTU supports the submissions made by the IEU and the AEU and disagrees with the submission of Ai Group to the effect that maximum limits on casual engagement in the Teachers’ Award should be removed – and submits that:
1. These terms are non-definitional by nature and therefore do not come within the jurisdiction of the Review; and,
2. At any rate, these terms are not inconsistent with the Act as amended, nor do they give rise to any uncertainty or difficulty.
[49] On this basis, ACTU submits that these features of the current prescription should be retained.
[50] The ACTU also responds to the submission about inconsistency and submits that:
‘…an NES provision and an Award provision do not need to be identical to be consistent, and moreover, that where there is difference: so long as the two provisions are capable of side-by-side operation, uncertainty or difficulty does not necessarily arise. There are many cases in which a fair work instrument may provide better (i.e. not identical) conditions when compared to the NES, but so long as the obligation is clear, there is no uncertainty or difficulty. Difficulty does not equate to a preference that an obligation did not exist.
To the extent that submissions are made in favour of removing aspects of the “residual category” definition, the ACTU submits that our earlier submission – in favour of retaining the procedural aspects of these terms – offers a sensible pathway forward.’ 22
[51] In its reply submission, Ai Group agrees with the proposition that there appears to be broad agreement that the type of definition described in question 4 is not consistent with the Act as amended and gives rise to uncertainty or difficulty as contemplated by clause 48.
[52] As to the SDA’s position, Ai Group submits that the SDA ‘does not provide detailed or persuasive reasoning in support of its position’ 23 and that the Commission should find that the ‘engaged as a casual’ definition is not consistent with the Act as amended and gives rise to uncertainty or difficulty as contemplated by clause 48, for the reasons set out in its initial submission at [81] – [85].
[53] ABI also addresses the SDA’s submission in its submission in reply and contends that cl 11.2 of the Retail Award is a ‘definitional clause’ (in that it is an operative clause that categorises certain employees as casual employees) and submits:
‘In ‘noting’ the ACTU Submission at [45], the SDA appears to acknowledge that the retention of the definition could give rise to uncertainty or difficulty, albeit that the SDA Submission itself notes that no uncertainty or difficulty arises. With respect, it is not clear whether it is being suggested that a difficulty or uncertainty is raised. For the reasons already stated, ABI and NSWBC contend that such uncertainty or difficulty does arise.’ 24
[54] In its reply submissions NRA reiterates that the ‘engaged as such’ definition must necessarily derive its content from the Act itself, which subsequent to its amendment now includes a definition of casual employment and submits:
‘Whilst this may not necessarily be inconsistent with the Act as amended, it does not provide any particular assistance to the lay reader of the Retail Award. As such, whilst legal minds may not perceive uncertainty, the NRA reiterates its position that such uncertainty that may arise is a matter of practical application rather than legal interpretation.’ 25
[55] MGA also disagrees with the SDA’s position and submits that ‘engaged as a casual’ type definition in the Retail Award is definitional with respect to casual employees as it attempts to define casual employees in reference to what casual employees are not.
[56] MGA agrees with the Ai Group that the ‘engaged as a casual’ type definition in the Retail Award is not consistent with the Act in that an employee could be designated as a casual under the ‘engaged as a casual’ type Award definition but not be a casual under the definition in the Act, and vice versa.
[57] MGA also agrees that the ‘engaged as a casual’ type definition reflects a substantively different approach to the definition in the Act and submits:
‘Due to this different approach, MGA/TMA agrees that the ‘engaged as a casual’ type definition gives rise to uncertainty or difficulty in relation to the interaction between the Retail Award and the Act as amended…
MGA/TMA submits that the inconsistency and uncertainty or difficulty renders the ‘engaged as a casual’ type definition inadequate with the definition in the Act. The more definitive construction in the Act as amended will provide a clearer understanding of the casual employment relationship for casual employees engaged under the Retail Award. As such, MGA/TMA submits that the current ‘engaged as a casual’ type casual definition in the Retail Award requires amendment to include express reference to s.15A of the Act in order to provide consistency with the Act as amended.’ 26
5. For the purposes of Act Schedule 1 cl.48(2), are the employment arrangements described as ‘casual’ under Part 9 of the Pastoral Award consistent with the definition of ‘casual employee’ in s.15A of the Act?
[58] In the June Statement the Full Bench observed that the parties that responded to this question agreed that:
• cl.11.1 of the Pastoral Award should be varied to align with the definition in s.15A of the Act, and
• if this course is adopted, there will not be any inconsistency, difficulty or uncertainty with the operation of Part 9 of the Pastoral Award and the Act as amended.
[59] The NFF and AWU further submitted that the shearing conditions in the Pastoral Award have an extremely long, complex and unique industrial history and the Review should avoid disturbing their operation.
[60] In its reply submission the SDA noted the respective position of the parties.
6. For the purposes of Act Schedule 1 cl.48(2):
• are ‘paid by the hour’ and ‘employment day-to-day’ casual definitions (as in the Pastoral Award and Teachers Award) consistent with the Act as amended
• are ‘residual category’ type casual definitions (as in the Retail Award and Pastoral Award) consistent with the Act as amended, and
• do such definitions give rise to uncertainty or difficulty relating to the interaction between these Awards and the Act as amended?
[61] In the June Statement the Full Bench observed that there were a variety of views expressed in submissions as to the status and effect of ‘paid by the hour’, ‘employment day-to-day’ and ‘residual category’ type definitions in the Awards.
[62] Of those parties who responded to this question, several submitted that these types of definitions may be or are inconsistent with the Act and give rise (or potentially give rise) to uncertainty or difficulty relating to the interaction between the Awards and the Act as amended.
[63] In respect of the ‘day-to-day’ requirement in the Teachers Award, the AIS submitted that it is unclear whether this imposes a further limitation on the new statutory definition of casual employee, but that this therefore presents difficulties as to how the Award definition should be applied for the purposes of the Award and the NES. The IEU submitted that the Teachers Award definition of casual employment is not inconsistent with the definition of casual employee in s.15A of the Act and does not give rise to uncertainty or difficulty.
[64] The ACTU submission, supported by a number of unions, was that ‘paid by the hour’ and ‘employment day-to-day’ definitions must be carefully examined to establish their true function, and ‘residual category’ type definitions (to the extent they are definitional) represent the outcome of extensive consideration in relation to their relevant industries and have previously been held necessary to meet the modern awards objective. Accordingly, the ACTU submitted that to the extent these definitions are inconsistent with the Act, their substantive operation should be preserved to the extent possible.
[65] In addition to the ACTU, Ai Group and the SDA also queried whether the ‘residual category’ type definition forms part of the casual definitions in awards, as follows:
• Ai Group said that while this is unclear, such clauses are relevant terms for the purposes of cl.48(1)(c)(iii) and their retention will create an inconsistency with the Act as amended or an uncertainty or difficulty. This may be ameliorated by replacing the definition of casual employment in the award with one that aligns with s.15A.
• The SDA submitted that cl.11.2 of the Retail Award is not definitional with respect to casual employees and the proper according of rights consonant with an employee’s status as a permanent full-time and permanent part-employee are outside the Review’s terms of reference.
[66] In its reply submission ACCI submitted:
‘ACCI acknowledges that there are a range of different views submitted by a number of parties in relation to the ‘paid by the hour’, ‘employment day-today’ and ‘residual category’ types of casual definitions, we submit however that there is generally broad consensus that such categories may give rise to inconsistency, uncertainty or difficulty in their interaction with the Act as amended. Though reasoning for such inconsistency, uncertainty or difficulty may differ between submissions.
Whilst the ACTU submission contends that the residual type casual definition represents the outcome of extensive consideration in relation to relevant industries, it has previously been found to meet the Modern Awards objectives, and should be preserved to the extent possible, ACCI respectfully submits that the Commission is directed under the review provisions1 to vary the award/s to ensure they are consistent or operate effectively with the Act. The provisions do not direct the Commission to consider the development or otherwise of specific award casual definitions in varying awards under the Review.
Indeed if the Commission is minded to vary such award terms it should look to ameliorate the inconsistency, uncertainty or difficulty in their interaction with the Act by replacing such definitions of casual employment in the awards with one that aligns with s15A of the Amending Act.’ 27
[67] In its reply submission Ai Group observes, in response to the IEU submission, that the operation of substantively different definitions for ‘casual employee’ and ‘casual employment’ within an award is ‘obviously unduly complex and apt to confuse’ and ‘it is not an outcome that the Commission should permit to operate going forward; even if it requires the Commission to act of its own motion (and independently of any compulsion to act pursuant to clause 48) to vary the awards pursuant to ss.157 or 160’.
[68] Ai Group continues to rely on its initial submission at [93] – [97] and submits that the ACTU’s submission is ‘highly generalised’:
‘It does not provide any details of the purported ‘extensive consideration’ previously given to such provisions, or of the extent to which there has been a serious or detailed assessment by the Commission of the merits of such provisions. Accordingly, the submissions should not be given any significant weight…
…the Commission should not adopt the subsequent suggestion from the ACTU that awards should include a procedural requirement to consider the nature of the work to be performed and whether it is better suited to permanent employment. This is not currently a feature of the Retail Award or indeed a requirement that is generally found in awards. This is a radical proposal that ought not be entertained. No persuasive case for it has been made out and there is no obviously justifiable basis for awards curtailing an employer’s capacity to offer employment on either a casual or permanent basis in circumstances where employees have access to a legislative right to access a pathway from casual to permanent employment under the NES.’ 28
[69] In its reply submission ABI reiterates the position put in its initial submissions as follows:
‘17. As developed in our primary submission, the use of different definitions to define the same term is highly likely to give rise to uncertainty or difficulty and does so in these examples.
18. To the extent that employees can be categorised differently under the Act clause and the relevant Award clause, a difficulty, uncertainty or inconsistent arises almost axiomatically.
19. The ACTU’s submission seeking the preservation ‘to the extent possible’ of clauses which have been the subject of extensive consideration is not supported or provided with a suggested draft determination.
20. In the abstract, it is therefore difficult to engage with this submission.
21. That being said, regardless of the extent of the consideration of the current clauses, or whether they were said to satisfy the modern awards objective, the Full Bench’s responsibility in this review is to assess consistency, certainty and difficulty with respect to the new statutory provision.
22. In our view the obvious and appropriate course is to adopt the statutory definition in the relevant awards.’ 29
[70] In its reply submission the NRA agreed with the proposition that the definition of full-time and part-time employment is outside the scope of this review, but notes that clause 11.2 of the Retail Award does not seek to define full-time or part-time employment, but rather seeks to define casual employment as ‘anything other than full-time or part-time.’ The NRA reiterates its submission that with the amendment of the Act to include s.15A, it is at least theoretically possible for an employee to be neither a full-time nor part-time within the meaning of the Retail Award, or casual within the meaning of the Act as amended and submitted that:
‘To this extent, the “residual category” of casual employment may give rise to an uncertainty or inconsistency, as the Act as amended now defines casual employment by reference to specific indicia, as distinct from the Retail Award defining casual employment by what it is not.’ 30
[71] In reply the MGA disagrees with the Ai Group that it is not clear that the ‘residual category’ type casual definition in the Retail Award forms part of the casual definition under the Award and submits that the ‘residual category’ type casual definition in the Retail Award clearly forms part of the casual definition under the Award; hence MGA agrees that the ‘residual category’ type casual definition in the Retail Award is a relevant term for the purposes of cl.48(1)(c)(iii).
[72] In reply the SDA submits that as clause 11.2 of the Retail Award ‘is not relevant, it follows that the Commission should not vary the provision’. 31
[73] In reply the AEU submits that the IEU’s submissions regarding Questions 6 and 7 raise an important issue as to the meaning and interaction of the terms casual ‘employee’ and ‘employment’, issues which have not been raised by other parties to this Review and submits that the Commission should consider the IEU’s submissions in the first instance before assessing other parties’ submissions regarding Questions 6 and 7.
[74] The AIS submits, at paragraph 13 of its submission, that it is ‘unclear’ as to whether the ‘day-to-day’ requirement in cl 12.1 of the Teachers Award imposes a limitation on s 15A of the Act, and this lack of clarity “therefore presents difficulties” and should be removed or amended on that basis. In reply the IEU submits:
‘No reasoning is offered for the asserted lack of clarity. It is noted that s 15A makes no reference to the units of time for which a casual engagement is made. There is no apparent reason why “employment day-to-day” is inconsistent with the description of and criteria for casual employee under s 15A.
The position of the AIS may also have proceeded from an erroneous assumption that the definition of casual employment in cl 12 of the Teachers Award, and the definition of casual employee in s 15A of the Act, are dealing with the same subject. They are not. Once this is understood, there is no lack of clarity as to whether cl 12 imposes a limitation on s 15A. As explained in the IEU Submissions at paragraphs 28 to 39, there is nothing in s 15A of the Act which precludes or is inconsistent with cl 12 of the Teachers Award.
ACCI, at paragraph 45 of its submission, takes a similar position to that of the AIS. Again, however, there is no analysis offered in support and its assertion does not refer to any particular example. There is no discussion of the difference between an arrangement to be “paid by the hour” and one of “employment day-to-day”; each references a different aspect of an employment relationship. There is also no specific examination of cl 12.1 of the Teachers Award.
The AIG’s submissions in answer to Question 6, at paragraphs 87 to 97, do not deal with the “employment day-to-day” element of the question.
The two preceding paragraphs above support the submission at paragraph 5 above.
The AEU’s submissions at paragraph 14 state that s 15A of the Act defines casual employment. It does not. Paragraphs 14 then proceeds to discuss Award definitions in general. It is submitted by IEU that the particular employment circumstances of employees under the Teachers Award, demonstrates the dangers of such generalisations. 32
7. Where a casual definition includes a limit on the period of casual engagement (as in the Teachers Award), if the definition is amended in the Casual terms review should that limit be recast as a separate restriction on the length of any casual engagement?
[75] In the June Statement the Full Bench observed that several different views were put in response to this question.
[76] The ACTU, AEU and IEU did not support removal of the limit on casual engagement periods in the Teachers Award, albeit on somewhat different grounds.
[77] The ACTU submission was that such limits on the period of casual engagement are non-definitional by nature and should be retained. The AEU supported recasting award casual definitions that limit casual engagement periods as separate restrictions (as proposed in the draft determination at Attachment A to the Submission Summary Document) to minimally disturb the Award’s current, substantive effects while making the Award definition of casual employment consistent with the Act. The IEU submitted that as cl.12.1 of the Teachers Award defines casual employment, not casual employee, by reference to the time limit on the employment of casual employees, there is no reason for cl.12.1 to be amended in the Review.
[78] AIS submitted that the Associations would prefer the removal of the limitation on casual engagement periods in cl.12.1 of the Teachers Award altogether, as this is necessary to achieve the modern awards objective.
[79] ABI submitted that to the extent such restrictions on casual engagement periods are to be maintained, they would need to be separated from the casual definition in awards.
[80] ACCI (supported by the AHA) submitted that the reference in cl.12.1 of the Teachers Award should be better understood as a limit on the length of casual employment rather than as comprising part of the casual definition. ACCI considered that if the reference were to remain in the casual definition in the Teachers Award, it would create a clear inconsistency with the definition in s.15A of the Act.
[81] ACCI proposed that the Commission consider removing the limitation on the engagement of casual employees, as it is likely to create interaction issues between the Teachers Award and the NES insofar as it will restrict the ability of an employee to ever access their NES entitlement to casual conversion. In its reply submissions, ACCI stated:
‘Whilst a number of submissions seek to retain the limit on casual engagement in the Teachers Award, none of these submissions appear to have addressed how retaining such a provision can operate consistently and without difficulty with respect to an employee NES entitlement to casual conversion.
As set out in our initial submission, maintaining a limitation on the engagement of casual employees under the Teachers Award creates interaction issues between the Award and the Act as amended with respect to casual conversion. As AiG’s submission also rightly points out, the maintenance of such a term would also be contrary to s55(1) of the Act as casual employees under the Teachers Award will not be in full receipt of all the benefits of the new casual conversion provisions in the NES.
ACCI therefore maintains that it is not open to the Commission to retain such clauses unamended or by simply recasting such terms as limits on casual engagement periods because of the interrelated effects of such a clause on an employee’s casual conversion rights under the NES as amended. Limits on the engagement of casuals in awards should be removed during the review process in order to address the inconsistency it creates with the Amended Act.’ 33 (Footnotes omitted)
[82] Ai Group made a similar point and submitted that the Commission should not adopt the proposed course of action. Ai Group submitted that the inclusion of terms in an award that limit the length of a casual employee’s engagement to 12 months or less would be contrary to s.55(1) of the Act (as they result in employees not receiving in full, or at all, the benefit of elements of the new casual conversion NES).
[83] In reply Ai Group continued to rely on its initial submission at [98] – [106] in relation to this question and emphasised its contention that recasting the current definition of casual employment as a separate restriction would give rise to a contravention of s.55(1) of the Act.
[84] In reply, and having considered the other submission filed, ABI contended that these clauses do have the effect of defining casual employment (contrary to the ACTU). By way of example, in the Teachers Award, the temporal limitation in clause 12.1 is included following the words ‘Casual employment means….’ (original emphasis).
[85] As for the submission put by the IEU that clause 12.1 defines casual employment not casual employees, ABI notes that there is no definition of casual employee in the award and therefore, the definition of casual employment in effect operates as a definition of the type of employee engaged in casual employment (i.e. a casual employee).
[86] As to the broader question of whether these restrictions should be retained or removed from the relevant awards, ABI note that there is force to the argument put by ACCI and others that a limitation on the duration of casual employment will serve to exclude the NES casual conversion provision.
[87] In reply the AEU rejects the Ai Group’s and ACCI’s contention that maximum casual engagement period in the Teachers Award would exclude the casual conversion entitlements in the NES. The AEU supports the IEU’s submissions.
[88] The AEU also rejects the Ai Group’s contention that, if it is necessary to amend the definition in the Teachers Award, it is unnecessary to recast the maximum casual engagement period in the Teachers Award to meet the modern awards objective and refers to paragraphs [21]-[22] of initial submissions in this Review, and further notes that not recasting the maximum casual engagement period at cl 12.1 would have the practical effect of removing a substantive and longstanding provision of the Teachers Award and that varying an award to remove such a substantive, longstanding provision requires a strong case to be made that such a variation meets the modern awards objective. The AEU submits:
‘There is no evidentiary case, and minimal submissions before the Commission that such a variation would meet the modern awards objective, and we note that the AIG itself does not have a direct interest in the Teachers Award.
In the absence of such a case is therefore necessary to maintain the status quo of the Award to make such a variation recasting the maximum casual engagement period at cl 12.1 of the Teachers Award.’ 34
[89] In reply to AIS’s submission the IEU submitted:
‘At its highest, the AIS submission is that it is necessary for cl 12.1 to be removed in order to achieve the modern awards objective. Any submission of that nature should be supported by a cogent argument, addressing the fact that the Teachers Award has contained a limitation on the length of any casual engagement since at least the time of award modernisation, and accordingly should be assumed to have met the modern awards objective at the time it was made. In the absence of any principled submission addressing the matters in s 157 of the Act, a party’s ‘preference’ for a different award term is insufficient to engage the Commission’s jurisdiction to vary a modern award.’ 35 (Footnotes omitted)
[90] The IEU also submits that the AEU submission in support of recasting cl 12 should be rejected.
[91] The IEU submits that Ai Group’s submission that the time limit on casual employment in cl 12.1 of the Teachers Award is contrary to s 55 of the Act, because cl 12.1 ‘would exclude the new provisions of the NES relating to casual conversion’ is ‘misconceived’:
‘Clause 12.1 does not exclude Division 4A of the Amendment Act. But in any event, Division 4A does not create a right to be employed for any particular period of time; rather it gives rights to those who are employed for the qualifying period.
There will be numerous casual employees – if not the majority of casual employees – who, by the nature of their engagement as casual employees, will never qualify for casual conversion. The effect of the AIG’s submission at paragraphs 99 to 101 is that employers would be prohibited from employing a casual employee for any duration short of the qualifying period for the casual conversion. That is clearly a nonsensical outcome which should be rejected out of hand.’ 36
[92] As to Ai Group’s suggestion that there is no basis for varying the Teachers Award to include a limit of casual employment, the IEU submits:
‘This is wholly incorrect. The Teachers Award already contains a limit on casual employment; no variation is required. The variation which the IEU has proposed (set out at paragraph 26 below) does not seek to introduce a new limit on the period of casual employment. Rather, the IEU’s proposed variation leaves cl 12.1 in place. That clause has been in the Teachers Award for a long period of time. Therefore, the fourth sentence of paragraph 103 is wrong and should be rejected. Furthermore, the submission in the fifth sentence of paragraph 103 is unsupported by anything in the legislation and should also be rejected.’ 37
[93] As to ACCI’s submissions, the IEU notes that, at [50], it accepts that cl 12.1 is a limit in the length of casual employment; but then at [51], ACCI submits that such a clause imposes an additional requirement for casual employment not subject to the definition in s 15A. The IEU submits:
‘This submission fails to grasp the distinction between the definition in s 15A and the function of cl 12.1. As stated above, there is nothing in s 15A which precludes putting a limit on the duration of a casual engagement. It would be a surprising (and unintended) outcome if s 15A prevented an employer from telling a prospective causal employee that the engagement is only for three weeks.’ 38
8. For the purposes of Act Schedule 1 cl.48(3), would replacing the casual definitions in the Retail Award, Hospitality Award, Manufacturing Award, Teachers Award and Pastoral Award with the definition in s.15A of the Act or with a reference to that definition, make the awards consistent or operate effectively with the Act as amended?
[94] In the June Statement the Full Bench observed that many submissions support replacing the casual definitions in the Retail, Hospitality, Manufacturing, Teachers and Pastoral Awards with the definition in s.15A of the Act to make the Awards consistent or operate effectively with the Act as amended. In those submissions, the generally expressed preference is to make reference to the statutory definition rather than reproducing s.15A in its entirety, as proposed in the Ai Group’s draft determination at Attachment B of the Submission Summary Document.
[95] The SDA submits that it is unclear whether cl.11.2 of the Retail Award is inconsistent with the definition in s.15A of the Act, but that if the Commission concludes that there is an inconsistency requiring a variation, it prefers that the Retail Award incorporate any definition to ensure that the Award remains a comprehensive standalone instrument.
[96] The ACTU submits that supplanting existing award definitions with a reference to the new definition in s.15A is not the only means by which to fulfil the Review’s requirements and that if the Commission is minded to replace the award definitions, all non-definitional aspects of those clauses should be retained.
[97] The AMWU submits that it is not necessarily opposed to the replacement of award casual definitions with the definition in s.15A, but agrees with the ACTU that this will depend on the other associated outcomes that flow from the Review and that if the Commission does so, all non-definitional aspects of those award clauses should be retained.
[98] In its reply submission, Ai Group notes that the ACTU, supported by various unions, submits that supplanting existing definitions with a reference to the NES is not the only means by which the requirements of the Review can be fulfilled. In reply, Ai Group submits:
‘They do not however advance any specific alternate approach, other than indicating that all non-definitional aspects of award clauses should be retained. They have not filed any draft determinations, as contemplated by the Commission’s directions. Accordingly, such a vague and generalised submission should not in any way guide the Commission’s approach to the Review’. 39
[99] At [55] – [57] of Ai Group’s reply submission:
‘The Commission should not adopt a blanket approach of simply recasting award terms that are currently definitional in nature to create new obligations upon employers or necessarily assuming that non-definitional terms relating to casual employment should be retained. An award should be varied in the manner required to make the award consistent or operate effectively with the Act and should only include terms that are necessary, as contemplated by s.138 of the Act. Further, a change in the definition of ‘casual employee’ may result in some other provisions no longer being necessary. For example, the shift to the statutory definition in lieu of the ‘engaged and paid as such’ model arguably removes the necessity for an award to require that an employer advise an employee that they are engaged as a casual employee – a point that we deal with in relation to question 10 of the Discussion Paper.
In conducting the Review, the Commission should not adopt an approach of simply seeking to retain current award-specific provisions relating to casual employment. It may be that there are industry specific considerations that justify a departure from a general approach of aligning casual definitions in awards with a reference to s.15A of the Act; but the mere fact that a current definition or associated provision has been in operation for a long time should not be viewed as a sufficient reason, in and of itself, for retaining it.
To the extent that it is relevant to an exercise of the Commission’s discretion and in particular, a consideration of whether the awards should be amended to refer to s.15A of the Act; we observe that the consistent adoption of a definition of casual employment that squarely aligns with s.15A across the awards system will assist in making the system simpler and easier to understand, as contemplated under s.134(1) of the Act. The Commission should seek to adopt a uniform approach to amending casual definitions in awards, unless cogent reasons (beyond the preferences of particular employer or employee organisations) for doing otherwise in an individual award are established.’ 40
[100] Ai Group also observes that no party appears to oppose replacing the casual employment definition in the Hospitality Award or Manufacturing Award with a reference to s.15A of the Act and submits that such a variation should be made.’ 41
[101] The IEU submits that ‘[b]y operation of s.46(1)(b) of the Acts Interpretation Act 1901 (Cth), the definition of casual employee in s.15A applies to the Teachers Award and all modern awards’. 42
[102] Ai Group responds to the IEU submission at [65] – [74] of its reply submission as follows:
‘Section 46(1)(b) of the Interpretation Act must be read in conjunction with s.40A of the Act.
Whilst s.46(1)(b) of the Interpretation Act provides that an expression used in an instrument is to have the same meaning as that in an authorising Act or instrument, we submit that consideration also needs to be given to whether a ‘contrary intention’ may be discerned from the text and context in which the expression is found in the instrument. That is, whether the text and context in which the expression ‘casual employee’ found in the Teachers Award indicates that it was not objectively intended for ‘casual employee’ to bear the same meaning as that found in the Act.
The approach above was similarly taken by the Full Bench in Re 4 Yearly Review of Modern Awards — Family and Domestic Violence Leave 43. In considering whether the coverage of the expression ‘de facto partners’ was the same in the NES and the model term, the Full Bench had regard to the operation of s.46(1)(b) of the Interpretation Act as follows:
“[34] A modern award is an instrument falling under s 46 of the Acts Interpretation Act 1901 (Cth) as in force on 25 June 2009 (the AI Act). Consequently, except so far as the contrary intention appears, expressions used in a modern award have the same meaning as in the Act (AI Act, s 46(1)(b)).
[35] The definition of “de facto partner” in s 12 of the Act requires co-habitation and we see no contrary intention in the model term or the awards in which it presently appears…” 44.’
[103] In reply, ABI prefers the broadly supported position that the awards should make reference to the statutory definition and submits that it is unnecessary to simply restate the casual definition and that a reference to the Act would suffice.
[104] The NRA responds to the SDA’s position that s.15A should be replicated in the Award and disagrees with that approach, noting that where a matter is comprehensively dealt with in the Act it is common practice for the Retail Award to refer to the Act (see, for example, clauses 28.1, 29.1, 30, 31, 32, and 33.1).
[105] The NRA submits that the only effective means to ensure that the Retail Award and the Act remain in accordance with each other is for the Retail Award to refer to the Act.
[106] MGA agrees with the Ai Group that replacing the casual definitions in the Retail Award with express reference to the definition in the Act as amended will make the definition consistent or operate effectively with the Act as amended and that adopting a reference to the definition in the Act as amended would be preferable to replacement with the whole definition in its entirety.
[107] MGA disagrees with the SDA position that incorporating the definition in the Act in its entirety is necessary to ensure that the Retail Award remains a comprehensive standalone definition and submits that ‘because the definition in the Act is complex and lengthy, it is not suitable to incorporate the definition in its entirety.’ 45
[108] In reply the SDA opposes the replacement of the current Award definition with a reference to the Act:
‘While the SDA’s primary position is that it is unclear whether the GRIA definition is inconsistent with the Award, were the Commission to find so it should replace the definition with the new statutory definition. To conclude otherwise would undermine the Award being an effective reference point for employers and employees.’ 46
[109] TheAIS submits, at [15], that replacing the casual definition in the Teachers Award with the definition in s 15A is ‘the preferred approach of the Associations’.
[110] In reply the IEU submits, for the reasons set out in [36]–[39] of its initial submission, there is no inconsistency between clause 12.1 of the Award, and s 15A of the Act, but it may be helpful to include the following in clause 2 of the Teachers Award after the definition of ‘all other teachers’:
‘Casual employee has the meaning in s 15A of the Act.
Casual employment means the employment of casual employees in accordance with clause 12.
A variation in this form leaves cl 12.1 to serve the purpose it always had, which was to impose a time limit on the duration of the casual employment.
By this minimal variation, any concerns about inconsistency are met. Any further variation is not necessary.’ 47
9. If an award is to be varied to adopt the casual definition in s.15A of the Act, should the Commission give advanced notice of the variation and the date it will take effect?
[111] In the June Statement the Full Bench observed that there is a high level of support for the Commission giving advance notice of any variations to awards pursuant to the Review and the date on which variations will take effect. This is framed somewhat differently in submissions – for example, ABI supports the Commission giving as much notice as it is empowered to give; whereas ACCI’s submission talks of ‘a limited period of advance notice’. A number of these submissions refer to the limitation imposed on the Commission by Act Schedule 1, cl. 48(4).
[112] Ai Group notes cl.48(4) does not require that the Commission must make a determination as soon as the Review finds that there is an issue contemplated in cl.48(2); but rather, it says that the Commission must make a variation as soon as reasonably practical. Ai Group submits that the Commission could refrain from concluding the review of a relevant term until 27 September 2021, and then make a determination after that date. Ai Group submits further that there may be less of an imperative to provide advanced notice, or as much advanced notice, of changes to be made to definitions in awards grouped under Stage 2 of the Review.
[113] The NFF and the NRA were the are the only parties that did not support the giving of advance notice of any variations to award casual definitions.
[114] The NFF’s view is that the Pastoral Award should be varied without delay given its concerns about multiple and, in some ways, competing definitions of casual employment. The NRA does not believe it is necessary for the Commission to give advance notice of a variation to award casual definitions − at least where the definition is of the ‘engaged as such’ character − and questions the legal effect of a delayed operative date in respect of variations to casual definitions in modern awards that directly conflict with s.15A of the Act.
[115] In reply, Ai Group continues to rely on [110] – [119] of its initial submission.
[116] ABI makes no further submission on this point.
[117] MGA submits that advanced notice of the variation and the date it will take effect ‘is required to enable employers to take preliminary steps to address breaches of the Retail Award in respect of existing employees and new employees who are treated as casuals for the purpose of the Retail Award, but who are not casual employees under the definition in the Act.’ 48
2.4 Permitted types of employment, residual types of employment and requirements to inform employees
10. For the purposes of Act Schedule 1 cl.48(2):
• are award requirements to inform employees when engaging them that they are being engaged as casuals (as in the Manufacturing Award and Pastoral Award) consistent with the Act as amended, and
• do these requirements give rise to uncertainty or difficulty relating to the interaction between these awards and the Act as amended?
[118] In the June Statement the Full Bench observed that the majority of submissions in response to the first limb of question 10 submit that an award requirement to inform employees when engaging them that they are being engaged as casuals is consistent (or is not inconsistent) with the Act as amended and does not give rise to uncertainty and or difficulty.
[119] Ai Group submits that the answer to this question depends, in part, upon whether the casual definition in awards is amended so as to adopt the s.15A definition. However, even if this occurs, Ai Group considers it arguable that the retention of such clauses gives rise to uncertainties and difficulties in relation to their interaction with the Act as amended. Accordingly, Ai Group submits that such clauses should be deleted by the Commission pursuant to cl.48(3) (see the draft determination at Attachment B of the Submission Summary Document) or under s.157 of the Act.
[120] Several submissions contend that award clauses (such as cl.11.4(d) of the Manufacturing Award) which require employers to inform casual employees on their engagement ‘of the likely number of hours they will be required to perform’ are not consistent with the new statutory definition, and in particular, s.15A(1)(a). They submit that this is also likely to result in uncertainty and difficulty as to the interaction between the award clauses and the Act as amended.
[121] However, the AMWU (supported by CFMMEU – Manufacturing) submits that cl.11.4(d) of the Manufacturing Award is consistent with the Act as amended and does not give rise to any difficulty of uncertainty.
[122] In its reply submission Ai Group opposes the position that no inconsistency or uncertainty or difficulty arises from the relevant clauses and relies on [120]-[135] of its initial submission.
[123] In reply, ABI submits that:
‘It is not clear the basis upon which the AMWU asserts that a requirement to inform casual employees on their engagement ‘of the likely number of hours they will be required to perform’ could be consistent with the statutory definition requiring the absence of a firm advance commitment to continuing and indefinite work according to an agreed pattern of work for the person.
At minimum, this is likely to give rise to uncertainty or confusion in that compliance with the award provisions brings with it a material risk that a firm advance commitment to continuing and indefinite work according to an agreed pattern of work will be made.
Beyond assertion that no difficulty or uncertainty arises, the AMWU submission is not persuasive.’ 49
[124] In response to Ai Group’s submission the AMWU submits:
‘This operation of clause 11.4(a) will not be disturbed if the Manufacturing Award is varied so as to adopt, or refer to, the definition of ‘casual’ that is provided for in s.15A of the FW Act. It is an obligation that can continue to operate independently of s.15A.
In relation to clause 11.4(d) the AMWU does not agree with the submissions of Employer parties
that the requirement to inform employees of the likely number of hours they will be required to perform is likely to give rise to inconsistencies, difficulties, or uncertainties.
The submission that:
“An obligation to advise casual employees, at the time of their engagement, of the likely number of hours that they will be required to perform might be construed as a ‘firm advance commitment to continuing and indefinite work’ in a manner that is inconsistent with the requirements of s.15A(1).”
must be rejected because:
1. Firstly, it is only the “likely hours” that a casual will be required to work; and
2. Secondly, s.15A states expressly that a regular pattern of hours “does not itself indicate a firm advance commitment to continuing and indefinite work”.’ 50
[125] In reply the CFMMEU C&G disagrees with the ABI, ACCI and Ai Group submissions:
‘In regard to advising an employee in writing that they are to be employed as a casual, the CFMMEU C&G supports the view expressed in paragraph 66 of the Discussion Paper that these terms “do not appear to raise any issues of inconsistency, or uncertainty or difficulty”, and submits that there will clearly be no inconsistency if the awards either repeat or make reference to the meaning of a casual employee in s.15A of the Act.
As to the requirement to inform a casual employee of their hours of work, it is clear from the plain language of the award clause that the employer is only required to indicate the likely hours to be worked. The word likely is well understood as meaning “such as well might happen or be true; probable” or “apparently suitable; promising”, it is obviously not a firm commitment and therefore not inconsistent with the definition of a casual in s.15A of the Act. Indeed s. 15A(3) of the Act makes this abundantly clear:
(3) To avoid doubt, a regular pattern of hours does not of itself indicate a firm advance commitment to continuing and indefinite work according to an agreed pattern of work.
Further support is found in the Explanatory Memorandum which explains in paragraph 18:
18. New subsection 15A(3) provides, for avoidance of doubt, that a regular pattern of hours does not, of itself, indicate the requisite firm advance commitment. A casual can be expected to work a regular pattern of hours and still meet the statutory definition when taking all the circumstances of their offer and acceptance into account.
In response to Q.11 the ACCI submits that the Commission should seek to clarify that the full-time and part-time definitions contained in awards are not captured by the definition of casual employment in s.15A of the Act. AIG submit that that the three awards do not expressly distinguish part-time employment and full-time employment from casual employment on the basis that part-time employment is ongoing employment (or ‘continuing and indefinite work’ within the meaning of s.15A of the Act). AIG contends that such a situation could be reasonably argued to give rise to an uncertainty or a difficulty in the sense contemplated by cl.48(2), and proposes that this could be rectified by the Commission varying award definitions of full-time and part-time employees to insert new clauses to the following effect:
X.X A full-time employee is not a casual employee as defined in s.15A of the Act.
X.X A part-time employee is not a casual employee as defined in s.15A of the Act.
The CFMMEU C&G disagrees with the ACCI and AIG submissions that any uncertainty can arise and submits that in regard to the Manufacturing Award no variation is necessary. Clause 8 of the Manufacturing Award already provides as follows:
8. Types of employment
8.1 Employees under this award will be employed in one of the following categories:
(a) full-time;
(b) part-time; or
(c) casual.
If the awards are varied to include or refer to the definition of a casual in s.15A of the Act then, under the Manufacturing Award, as employees can only be employed in one of the categories a full-time or part-time employee cannot be a casual employee and a casual employee cannot be a full-time or part-time employee.’ 51(CFMMEU C&G’s Footnote omitted)
11. For the purposes of Act Schedule 1 cl.48(2):
• are award definitions that do not distinguish full-time and part-time employment from casual employment on the basis that full-time and part-time employment is ongoing employment (as in the Retail Award, Hospitality Award, Manufacturing Award, Teachers Award and Pastoral Award) consistent with the Act as amended, and
• do these definitions give rise to uncertainty or difficulty relating to the interaction between these awards and the Act as amended?
[126] In the June Statement the Full Bench observed that there were a variety of views put in response to this question.
[127] The ACTU (supported by a number of unions), AEU and SDA in substance submit that there is no inconsistency between the definition of casual employment in s.15A and existing award definitions of full-time and part-time employment, nor any uncertainty or difficulty. Accordingly, such definitions are outside the scope of the Review.
[128] Similarly, the NFF submits that the Pastoral Award is understood in accordance with the well-established meanings of full-time and part-time employment and any change to the Award would create confusion and may have unanticipated consequences.
[129] ABI and ACCI (supported by AHA) submit that it is unclear whether terms defining full-time and part-time employment are relevant terms. However, together with Ai Group, they consider that the lack of express distinction between full-time and part-time employment and casual employment (on the basis that part-time employment is ongoing employment or ‘continuing and indefinite work’ within the meaning of s.15A of the Act) may give rise to difficulty or uncertainty. Ai Group proposes that this could be rectified by the Commission varying award definitions to clarify that full-time and part-time employees are not casual employees as defined in s.15A of the Act.
[130] Similarly, the NRA submits, particularly in relation to the Retail Award, that award definitions that do not distinguish full-time and part-time employment from casual employment on the basis that full-time and part-time employment is ongoing employment, are not consistent with the Act as amended and give rise to uncertainty or difficulty. The NRA suggests a variation to cl.10.1 of the Retail Award to resolve this issue.
[131] In relation to the Teachers Award, the IEU submits that when the relevant clauses of the Teachers Award are read together, the distinction between full-time and part-time employment and casual employment is apparent. The AIS submits that while there is arguably a common understanding that references to full-time and part-time employment in the Teachers Award are references to ongoing employment, the Award could be varied to clarify this.
[132] Some parties 52 argued that award provisions defining full-time and part-time employment are not ‘relevant terms’ and therefore cannot be the subject of the Review.
[133] Ai Group agrees that they are not ‘relevant terms’; but submits that the provisions could be varied through the exercise of the Commission’s general award powers.
[134] In reply ABI submits that:
‘while it is not clear whether award definitions which fail to distinguish between permanent and casual employment are relevant terms, if they are, and any uncertainty arises (which would be uncertainty whether a permanent employee under an award could be considered a casual employee under the Act) this should be remedied.
AI Group’s proposed solution would achieve this, however it is not clear whether the introduction of such a clause is necessary in every case, having regard to the requirements of s 138.’ 53
[135] The SDA submits that the definitions of full-time and part-time employment in the Retail Award are not relevant terms for the purposes of the review and do not give rise to any uncertainty.
[136] In reply the NRA reiterates its submission that it is possible for an employee to satisfy both the definition of a casual employee in s.15A of the Act as amended and the definition of a part-time employee within the Retail Award:
‘Even if the definitions of full-time and part-time employment are not relevant terms for the purposes of the review, it would nevertheless be appropriate for the Full Bench to exercise its general powers under s.160 of the Act to remedy this deficiency having regard for the new legislative paradigm.’ 54
[137] In reply MGA submits that the Retail Award currently has no clear dichotomy between part-time and full-time employment from casual employment, which may give rise to uncertainty or difficulty relating to the interaction between the Retail Award and the Act as amended and on that basis supports ACCI’s submission that the Commission should seek to clarify that the full-time and part-time definitions contained in the Retail Award is not encompassed or captured by the definition of casual employment in s15A of the Act as amended.
[138] MGA submits that:
‘there is a need to distinguish between full-time and part-time employment being ongoing employment and that casual employment has no firm advance commitment to continuing and indefinite work. Without any differentiation between the part-time and full-time employment and casual employment, this is likely to give rise to uncertainty or a difficulty contemplated by cl.48(2).’ 55
[139] In reply the SDA submits that:
‘…they are not in fact relevant terms within the scope of the Review and that as such, the FWC should take no action in their respect.
Furthermore, because the full-time and part-time definitions are not relevant, it follows that they cannot be inconsistent with the Act.
The proposal of AIG at paragraph 138 of its submissions could create inadvertent complexity. Such a proposal, being intrinsically outside of the scope of this review, is best left to an Award variation application should an apparent difficulty arise.’ 56
[140] In reply, the AMWU does not agree that the extant definitions of full and part time employment give rise to any difficulties or uncertainties and that varying the Manufacturing Award in the manner proposed by Ai Group at [138] would likely lead to confusion and uncertainty.
[141] In reply the IEU submits:
‘At paragraph 17 of its submission, the AIS suggests (‘arguably’) that there is a ‘common understanding’ that references to full and part time employment in the Teachers Award are references to ongoing employment and not casual employment. For the reasons outlined in the IEU Submissions at paragraphs 44 to 46, the distinction between full-time and part-time employment on the one hand, and casual employment on the other, is not a matter of “common understanding”, but rather reflected in the terms of the Award to which we have referred.
The clauses of the Award identifying full-time, part-time, casual and fixed-term employment have been there for many years. The AIS has not identified a single occasion when there has been any “potential argument” of the kind referred to in the second sentence of paragraph 17.
Furthermore, the hypothesis suggested in the second sentence of paragraph 17 of the AIS submissions is a non-sequitur. The question of full-time and part-time employment as compared to casual employment, even applying the definition in s 15A, is unrelated to the number of hours offered. The solution suggested in the draft variation is unnecessary and opposed by the IEU.’ 57
• can they be updated under Act Schedule 1 cl.48(3), or alternatively
• can they be updated in the course of the Casual terms review by the Commission exercising its general award variation powers under Part 2-3 of the Act?
Provisional view
Such provisions which are not ‘relevant terms’ can be updated by the Commission exercising its general award variation powers under Pt.2-3 of the Act. Under s.160, the Commission can on its own initiative vary modern awards to remove ambiguity or uncertainty or correct error.
15. Are award clauses specifying:
• minimum casual payments (as in the Retail Award, Hospitality Award, Manufacturing Award, Teachers Award and Pastoral Award)
• casual pay periods (as in the Retail Award, Hospitality Award and Pastoral Award)
• minimum casual engagement periods (as in the Hospitality Award), and
• maximum casual engagement periods (as in the Teachers Award)
relevant terms?
16. For the purposes of Act Schedule 1 cl.48(2):
• are such award clauses consistent with the Act as amended, and
• do such award clauses give rise to uncertainty or difficulty relating to the interaction between these awards and the Act as amended?
Provisional view
These provisions are ‘relevant terms’ since they provide for the manner in which casual employees are to be employed: cl.48(1)(c)(iii).
These provisions are not inconsistent with the Act, and do not give rise to uncertainty or difficulty as to the awards’ interaction with the Act, provided they are properly separated from award provisions defining casual employment.
17. Is provision for casual loading (as in the Retail Award, Hospitality Award, Manufacturing Award, Teachers Award and Pastoral Award) a relevant term?
18. If provision for casual loading is a relevant term:
• for the purposes of Act Schedule 1 cl.48(2), does the absence of award specification of the entitlements the casual loading is paid in compensation for (as in the Hospitality Award, Manufacturing Award cl.11.2 and the Teachers Award) give rise to uncertainty or difficulty relating to the interaction between these awards and the Act as amended, and
• if so, should these awards be varied so as to include specification like that in the Retail Award or the Pastoral Award?
Provisional view
Provisions requiring the payment of a casual loading are ‘relevant terms’ because they provide for the manner in which casual employees are to be employed: cl.48(1)(c)(iii).
No relevant uncertainty or difficulty arises if an award does not specify which entitlements are compensated by the casual loading, provided that the award defines casual employment in a way consistent with s 15A(1). Casual loadings have, in part, the purpose of compensating casual employees for not having access to certain NES benefits. There is no established or agreed formulation as to what proportion of the casual loading compensates for each such benefit. Accordingly, awards do not need to be varied to include any such specification and it is not appropriate to do so.
19. Are any of the clauses in the Retail Award, Hospitality Award, Manufacturing Award, Teachers Award and Pastoral Award that provide general terms and conditions of employment of casual employees (not including the clauses considered in sections 5.1–5.5 and 6 of this paper) ‘relevant terms’ within the meaning of Act Schedule 1 cl.48(1)(c)?
20. Whether or not these clauses are ‘relevant terms’:
• are any of these clauses not consistent with the Act as amended, and
• do any of these clauses give rise to uncertainty or difficulty relating to the interaction between the awards and the Act as amended?
Provisional view
These provisions are ‘relevant terms’ since they provide for the manner in which casual employees are to be employed: cl.48(1)(c)(iii).
These provisions are not inconsistent with the Act, and do not give rise to uncertainty or difficulty as to the awards’ interaction with the Act, provided they are properly separated from provisions defining casual employment.
21. Is it the case that the model award casual conversion clause (as in the Retail Award and Pastoral Award) is detrimental to casual employees in some respects in comparison to the residual right to request casual conversion under the NES, and does not confer any additional benefits on employees in comparison to the NES?
Provisional view
The model award casual conversion clause is less beneficial for employees than the NES casual conversion entitlements in at least the following respects:
• the obligations imposed upon employers, other than small business employers, by Subdiv.B of Div.4A of Pt.2-2 of the Act are not provided for in the model clause and provide an additional pathway for casual conversion;
• under the residual right to request casual conversion in Subdiv.B of Div.4A of Pt.2-2, the requisite ‘regular pattern of hours’ must be worked over at least the previous 6 months, whereas under the model clause the requisite ‘pattern of hours’ must be worked over 12 months; and
• certain disputes about the NES entitlements may be pursued as small claims in the Federal Circuit Court of Australia, whereas this is not the case with respect to the model clause.
The model clause is not more beneficial than the NES entitlements with respect to the ‘anti-avoidance’ provision (e.g. Retail Award cl.11.7(n)). A protection at least equivalent to the model clause is provided for in s.66L(1) of the Act. The general protections provisions in Pt.3-1 of the Act also provide additional protection.
The SDA’s submission that the model clause in the Retail Award is more beneficial than the NES entitlements, because the requirement in the model clause for a ‘regular pattern of hours’ to be worked over 12 months allows variations in hours due to seasonality to be taken into account, is not accepted. Section 66B(1)(b) refers to a period of ‘at least the last 6 months’, so that if a regular pattern of hours has emerged over 12 months, the employer must make an offer of conversion (subject to s.66C). The residual right in s.66F requires the ‘regular pattern of hours’ to be have been worked in the 6 months prior to the employee’s request. Because this effectively allows the casual employee to select the requisite 6 month period, it will be easier for the employee to demonstrate a regular pattern of hours because a period with the least seasonal variability can be selected.
22. For the purposes of Act Schedule 1 cl.48(2):
• is the model award casual conversion clause consistent with the Act as amended, and
• does the clause give rise to uncertainty or difficulty relating to the interaction between these awards and the Act as amended?
Provisional view
The model clause may give rise to uncertainty and difficulty relating to the interaction between awards and the Act. Different prescriptions in awards and the Act about conversion rights are likely to cause confusion and may give rise to complications with respect to compliance.
23. For the purposes of Act Schedule 1 cl.48(3), would removing the model clause from the awards, or replacing the model clause with a reference to the casual conversion NES, make the awards consistent or operate effectively with the Act as amended?
Provisional view
Removing the model clause from awards and replacing it with a reference to the NES provisions concerning casual employment would make the awards consistent and operate effectively with the Act.
24. If the model clause was removed from the awards, should other changes be made to the awards so that they operate effectively with the Act as amended (for example, adding a note on resolution of disputes about casual conversion)?
Provisional view
It may be appropriate to add a note that disputes about casual conversion may be dealt with under an award dispute resolution procedure.
25. Is the Manufacturing Award casual conversion clause more beneficial than the residual right to request casual conversion under the NES for casual employees employed for less than 12 months, but detrimental in some respects in comparison to the NES for casual employees employed for 12 months or more?
Provisional view
The Manufacturing Award casual conversion clause (cl.11.5) is more beneficial than the NES residual right to casual conversion to the extent that it allows a request for conversion to be made after only 6 months’ casual employment. However, clause 11.5(j) provides for a facilitative mechanism for this period to be extended to 12 months in prescribed circumstances. The award clause is less beneficial in the following respects:
• it requires the employer to give notice of the right to request conversion within 4 weeks of the employee becoming qualified to do so, as distinct from before or as soon as practicable after the employee commences employment under s125B;
• the award right is a one-off right, as distinct from the ongoing residual right in the Act;
• the time for the employer to respond to the request is shorter under the Act (21 days) than the award (4 weeks);
• the award arguably provides for broader and less defined grounds for the employer to refuse a request.
26. For the purposes of Act Schedule 1 cl.48(2):
• is the Manufacturing Award casual conversion clause consistent with the Act as amended, and
• does the clause give rise to uncertainty or difficulty relating to the interaction between the award and the Act as amended?
Provisional view
Clause 11.5 of the Manufacturing Award will give rise to uncertainty and difficulty relating to the interaction between the Manufacturing Award and the residual right of casual conversion in the Act because the significantly different prescriptions in the award and the Act about the same subject matter will cause confusion and complications with respect to compliance. Clause 11.5 is also inconsistent with the Act insofar as some casual employees would not be entitled to request conversion under the award, but would be entitled to request conversion under the Act.
27. For the purposes of Act Schedule 1 cl.48(3), would confining the Manufacturing Award clause to casual employees with less than 12 months of employment and redrafting it as a clause that just supplements the casual conversion NES, make the award consistent or operate effectively with the Act as amended?
Provisional view
Redrafting clause 11.5 of the Manufacturing Award so that it applies the residual right of conversion under the Act on the basis that an employee is eligible to make a request if the employee has been employed by the employer for a period of at least 6 months beginning the day the employment started, would make the award consistent and operate effectively with the Act.
Alternatively, removing clause 11.5 from the Manufacturing Award and replacing it with a reference to the NES casual conversion entitlements would also make the award consistent and operate effectively with the Act.
28. Is the Hospitality Award casual conversion clause more beneficial than the residual right to request casual conversion under the NES for any group of casual employees?
Provisional view
Clause 11.7 of the Hospitality Award may allow for casual employees who do not meet the conditions in s.66F(1)(b) to request conversion.
29. Is the Hospitality Award casual conversion clause detrimental in any respects for casual employees eligible for the residual right to request casual conversion under the NES?
Provisional view
Clause 11.7 of the Hospitality Award is detrimental to employees compared to the residual right to request casual conversion under the NES in at least the following respects:
• under clause 11.7, there is no requirement for the employer to give the employee notice of the right to request conversion;
• under clause 11.7, there is no time limit for the employer’s response to the request;
• clause 11.7 does not require the employer to discuss the request before refusing it, or give a written response to the request, or give reasons for refusing the request;
• the reasonable grounds upon which a request may be refused under clause 11.7 do not need to be based on facts that are known or reasonably foreseeable at the time of the refusal; and
• a request under clause 11.7 need not be granted if the casual employee has not worked for 12 months ‘in a particular establishment or in a particular classification stream’ (cl.11.7(l)).
30. For the purposes of Act Schedule 1 cl.48(2):
• is the Hospitality Award casual conversion clause consistent with the Act as amended, and
• does the clause give rise to uncertainty or difficulty relating to the interaction between the award and the Act as amended?
Provisional view
Clause 11.7 of the Hospitality Award is inconsistent with the Act and gives rise to uncertainty or difficulty relating to the interaction between the award and the Act.
31. For the purposes of Schedule 1 cl.48(3), would removing the Hospitality Award casual conversion clause from the award, or replacing it with a reference to the casual conversion NES, make the award consistent or operate effectively with the Act as amended?
Provisional view
Yes. Clause 11.7 should be removed and replaced with a reference to the NES casual conversion entitlements. Clause 11.7 is on balance detrimental to employees, and any possible benefit is likely to be of little practical significance.
32. If the casual conversion clause was removed from the Hospitality Award, should other changes be made to the award so that it operates effectively with the Act as amended (for example, adding a note on resolution of disputes about casual conversion)?
Provisional view
It may be appropriate to add a note that disputes about casual conversion may be dealt with under the award’s dispute resolution procedure.
Other matters
Provisional view
The State Government Agencies Award 2020 should be dealt with in Group 4 rather than Group 3 of the Review so that its casual terms can be considered in the same group as the Victorian State Government Agencies Award 2015.
1 [2021] FWCFB 2222.
2 Ibid at [5].
3 [2021] FWCFB 3313.
4 Ibid at [8].
5 [2021] FWCFB 2222.
6
[2021] FWCFB 3313.
7 The CFMMEU (Manufacturing) supports and adopts the reply submissions of the ACTU. With respect to the Manufacturing Award, the CFMMEU (Manufacturing) supports and adopts the reply submissions of the AMWU and the CFMMEU C&G.
8 The CFMMEU C&G supports the general submissions filed by the ACTU and the AMWU in respect of the Manufacturing Award.
9 The CEPU supports, adopts and relies upon the submissions of the AMWU, ACTU and CFMMEU C&G.
10 ACCI submission in reply, 16 June 2021 at [7]-[10].
11 Section 3(b) of the Act.
12 ACCI submission dated 24 May 2021 at [18].
13 Ai Group submission in reply, 16 June 2021 at [21]-[32].
14 ACTU submission dated 24 May 2021 at [27] – [28].
15 Ai Group reply submission 16 June 2021 at [13].
16 Ai Group reply submission 16 June 2021 at [14].
17 SDA submission dated 24 May 2021 at [9].
18 ABI submission in reply, 16 June 2021 at [12].
19 NRA submission in reply, 16 June 2021 at [1.1.3].
20 Ai Group reply submission, 16 June 2021 at [37] – [38].
21 SDA submission in reply, 16 June 2021 at [28].
22 ACTU submission in reply, 16 June 2021 at [7]-[8].
23 Ai Group reply submission 16 June 2021 at [42].
24 ABI submission in reply, 16 June 2021 at [15].
25 NRA submission in reply, 16 June 2021 at [1.2.3].
26 MGA submission in reply, 16 June 2021 at [10]-[11].
27 ACCI submission in reply, 16 June 2021 at [11]-[13].
28 Ai Group submission in reply, 16 June 2021 at [49]-[51].
29 ABI submission in reply, 16 June 2021 at [17]-[22].
30 NRA submission in reply, 16 June 2021 at [1.3.4].
31 SDA submission in reply, 16 June 2021 at [35].
32 IEU submission in reply, 16 June 2021 at [10]-[15].
33 ACCI submission in reply, 16 June 2021 at [14]-[16].
34 AEU submission in reply, 16 June 2021 at [9.3]-[9.4].
35 IEU submission in reply, 16 June 2021 at [17].
36 IEU submission in reply, 16 June 2021 at [19]-[20].
37 IEU submission in reply, 16 June 2021 at [21].
38 IEU submission in reply, 16 June 2021 at [23].
39 Ai Group reply submission, 16 June 2021 at [54].
40 Ai Group reply submission, 16 June 2021 at [55] – [57].
41 Ai Group reply submission, 16 June 2021 at [58].
42 IEU submission, 24 May 2021 at [38].
43 [2019] FWCFB 5144.
44 Re 4 Yearly Review of Modern Awards — Family and Domestic Violence Leave[2019] FWCFB 5144 at [34] – [35].
45 MGA submission in reply, 16 June 2021 at [19].
46 SDA submission in reply, 16 June 2021 at [41].
47 IEU submission in reply, 16 June 2021 at [26]-[28].
48 MGA submission in reply, 16 June 2021 at [20].
49 ABI submission in reply, 16 June 2021 at [31]-[33].
50 AMWU submission in reply, 16 June 2021 at [12]-[14].
51 CFMMEU C&G submissions in reply, 16 June 2021 at [12]-[15].
52 See for example ACTU submission, 24 May 2021 at [62] and SDA submission, 24 May 2021 at [67].
53 ABI submission in reply, 16 June 2021 at [33].
54 NRA submission in reply, 16 June 2021 at [1.5.3].
55 MGA submission in reply, 16 June 2021 at [23].
56 SDA submission in reply, 16 June 2021 at [55]-[57].
57 IEU submission in reply, 16 June 2021 at [30]-[32].
58 Ai Group submission in reply, 16 June 2021 at [85].
59 Ai Group submission in reply, 16 June 2021 at [88]-[89].
60 SDA submission, 24 May 2021 at [73].
61 ACTU submission in reply, 16 June 2021 at [12].
62 MGA submission in reply, 16 June 2021 at [26]-[27].
63 MGA submission in reply, 16 June 2021 at [29].
64 AMWU submission in reply 16 June 2021 at [19].
65 ACCI submission in reply, 16 June 2021 at [17]-[25].
66 ACTU submission in reply, 16 June 2021 at [13].
67 MGA submission in reply, 16 June 2021 at [31].
68 IEU submission in reply, 16 June 2021 at [35].
69 IEU submission in reply, 16 June 2021 at [36].
70 Ai Group submission in reply, 16 June 2021 at [99]-[100].
71 Ai Group submission in reply, 16 June 2021 at [102]-[103].
72 NRA submission in reply, 16 June 2021 at [1.6.1.]-[1.6.2.].
73 [2021] FWCFB 1608 at [120].
74 [2018] FWCFB 6075 at [40] to [45].
75 NRA submission in reply, 16 June 2021 at [1.7.2]-[1.7.8].
76 SDA submission in reply, 16 June 2021 at [99].
77 ACTU submission in reply, 16 June 2021 at [14].
78 ACTU submission dated 24 May 2021 at [91(a)].
79 ACTU submission dated 24 May 2021 at [91(b)].
80 SDA submission dated 24 May 2021 at [80] – [82].
81 ACCI submission in reply, 16 June 2021 at [27]-[39].
82 ACTU submission dated 24 May 2021 at [91(b)].
83 Ai Group submission in reply, 16 June 2021 at [109]-[114].
84 SDA submission dated 24 May 2021 at [81].
85 4 yearly review of modern awards – Casual employment and Part-time employment [2017] FWCFB 3541 at [375] – [377].
86 Ai Group submission, 16 June 2021 at [126].
87 Ai Group submission in reply, 16 June 2021 at [129].
88 Section 56 of the Act.
89 SDA submission dated 24 May 2021 at [84].
90 Ai Group submission dated 24 May 2021 at [182] and [184].
91 Ai Group submission in reply, 16 June 2021 at [135].
92 ABI submission in reply, 16 June 2021 at [45].
93 ABI submission in reply, 16 June 2021 at [47]-[49].
94 NRA submission in reply, 16 June 2021 at [2.1.9]-[2.1.10].
95 NRA submission in reply, 16 June 2021 at [2.3.1].
96 MGA submission in reply, 16 June 2021 at [36].
97 SDA submission in reply, 16 June 2021 at [110]-[113].
98 SDA submission in reply, 16 June 2021 at [117]-[120].
99 SDA submission in reply, 16 June 2021 at [124].
100 AMWU submission dated 24 May 2021 at [73].
101 Ai Group reply submission 16 June 2021 at [137] and [139].
102 AMWU submission dated 24 May 2021 at [76].
103 ACCI submission in reply, 16 June 2021 at [43]-[52].
104 AMWU submission in reply, 16 June 2021 at [85].
105 AMWU submission in reply, 16 June 2021 at [86]-[91].
106 AWU submission in reply dated 16 June 2021 at [10]-[23].
107 CFMMEU C&G submission in reply, 16 June 2021 at [17]-[19].
108 CFMMEU C&G submission in reply, 16 June 2021 at [28].
109 ACTU submission dated 24 May 2021 at [107].
110 AMWU submission dated 24 May 2021 at [78].
111 AMWU submission dated 24 May 2021 at [80].
112 Ai Group submission in reply, 16 June 2021 at [145]-[146].
113 Ai Group submission in reply, 16 June 2021 at [147].
114 4 yearly review of modern awards – Casual employment and Part-time employment [2017] FWCFB 3541 at [385].
115 Ai Group submission in reply, 16 June 2021 at [155]. Also see 4 yearly review of modern awards – Casual employment and Part-time employment [2017] FWCFB 3541 at [376].
116 4 yearly review of modern awards – Casual employment and Part-time employment [2017] FWCFB 3541 at [376].
117 4 yearly review of modern awards – Casual employment and Part-time employment [2017] FWCFB 3541 at [363].
118 Ai Group submission in reply, 16 June 2021 at [160].
119 Fair Work Amendment (Supporting Australia’s Jobs and Economic Recovery) Bill 2020 – Revised Explanatory Memorandum at page 14.
120 Fair Work Amendment (Supporting Australia’s Jobs and Economic Recovery) Bill 2020 – Revised Explanatory Memorandum at page ix.
121 Fair Work Amendment (Supporting Australia’s Jobs and Economic Recovery) Bill 2020 – Revised Explanatory Memorandum at page xvii – xxi.
122 Ai Group submission in reply, 16 June 2021 at [163].
123 ABI submission in reply, 16 June 2021 at [54].
124 Ai Group submission, 24 May 2021 at [110] – [119].
125 Ai Group submission in reply, 16 June 2021 at [166]-[168].
126 ABI submission in reply, 16 June 2021 at [55].
127 AMWU submission in reply, 16 June 2021 at [97]-[106].
128 AHA submission in reply, 16 June 2020 at [6]-[9].
129 Ai Group submission in reply, 16 June 2021 at [181].
130 Ai Group submission in reply, 16 June 2021 at [173].
131 Section 57 of the Act.
132 Ai Group submission in reply, 16 June 2021 at [177].
133 ABI submission in reply, 16 June 2021 at [59].
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