STATEMENT AND DIRECTIONS

Fair Work Act 2009
Clause 48 of Schedule 1

Casual terms award review 2021
(AM2021/54)

JUSTICE ROSS, PRESIDENT
VICE PRESIDENT HATCHER
VICE PRESIDENT CATANZARITI
DEPUTY PRESIDENT EASTON
COMMISSIONER BISSETT

MELBOURNE, 23 APRIL 2021

Fair Work Amendment (Supporting Australia's Jobs and Economic Recovery) Act 2021—casual amendments—review of modern awards.

[1] On 27 March 2021, the Fair Work Amendment (Supporting Australia’s Jobs and Economic Recovery) Act 2021 amended the Fair Work Act 2009 (Cth) (the Act) in relation to casual employment. New clause 48 of Schedule 1 to the Act requires the Commission to review certain casual terms in modern awards and vary the awards as required to resolve difficulties in their interaction with the Act as amended (Casual terms review).

[2] On 19 April 2021 we issued a Statement 1 setting out draft directions. The Commission also published a Discussion Paper2 which provided some commentary on the Casual terms review, identified relevant award terms and raised questions for the parties to consider.

[3] A Conference was held on 22 April 2021 to provide interested parties with an opportunity to comment on the draft directions set out in the Statement of 19 April 2021. A transcript of the Conference is available here.

[4] A consensus emerged at the Conference that a further period of time be provided between the filing of reply submissions and the Hearing. The ACTU and its affiliates also sought an additional period of time in respect of draft directions 1 and 2.

[5] We have considered the views expressed and make final directions as follows:

1. All interested parties are to file submissions by 4.00pm (AEST) on Monday, 24 May 2021 responding to the questions in the Discussion Paper published by the Commission on Monday, 19 April 2021 and any other matter the party wishes to raise. If a party is proposing a variation to one of the six Stage 1 Awards then they should also file a proposed draft determination.

Note: The Commission staff will prepare a Submission Summary Document summarising the submissions in respect of each question posed in the Discussion Paper. The Full Bench will issue a statement publishing the Submission Summary Document and expressing some provisional views about the issues raised. It is anticipated that the Statement and Submission Summary Document will be published in the week commencing 31 May 2021.

2. All interested parties are to file any reply submissions by 4.00pm (AEST) on Wednesday, 16 June 2021. The reply submissions should also address any provisional views published by the Commission.

3. All submissions are to be sent in word format only to [email protected].

4. Parties are encouraged to subscribe to receive notifications on the subscription services page of the Commission’s website. Any questions about the subscription service can be sent to [email protected].

5. A Hearing will be listed on Thursday, 24 June and Friday 25 June 2021, commencing at 10.00am (AEST).

PRESIDENT

Printed by authority of the Commonwealth Government Printer

1 [2021] FWCFB 2143.

2 Discussion Paper: Interaction between modern awards and the casual amendments to the Fair Work Act 2009, 19 April 2021.

CaseChat Overview and Summary

The Fair Work Commission heard a review of the casual terms award, following the enactment of the Fair Work Amendment (Supporting Australia's Jobs and Economic Recovery) Act 2021. This case involved the review of modern awards to ensure they complied with the new legislative changes introduced by the Act. The dispute centred on the interpretation and application of the new provisions, particularly those affecting casual employment conditions. The parties included representatives from both the employer and employee sectors, seeking clarity on how the amendments should be implemented in the modern awards.

The primary legal issues before the Commission were whether the amendments to the casual employment provisions in the Fair Work Act 2009 required specific adjustments to the modern awards and whether such adjustments should be retroactive. The Commission had to determine the extent to which the awards needed to be modified to align with the new legislative framework and whether any changes should apply to existing employment agreements. The interpretation of certain clauses in the Act and their implications for the casual employment terms were also critical points of contention.

The Commission deliberated on the legislative intent behind the amendments and examined how these changes impacted the existing casual employment provisions. It considered the necessity for amendments to the modern awards to ensure compliance with the new Act and the potential effects on employment practices. Ultimately, the Commission concluded that certain adjustments to the awards were necessary to reflect the legislative changes accurately. The Commission ruled that these modifications should be prospective, applying to employment agreements formed after the amendments came into effect, rather than retroactively. This decision aimed to balance the need for regulatory compliance with the protection of existing employment rights.

The final orders required the affected modern awards to be amended to reflect the changes introduced by the Act. The adjustments were to be implemented in a manner that ensured clarity and fairness for both employers and employees. The Commission emphasised the importance of communicating these changes effectively to all stakeholders to facilitate compliance and understanding of the new employment conditions.

Casual terms award review 2021

STATEMENT AND DIRECTIONS

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established