DECISION

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

Casual terms award review 2021
(AM2021/54)

Various industries
VICE PRESIDENT HATCHER DEPUTY PRESIDENT EASTON COMMISSIONER BISSETT	SYDNEY, 2 SEPTEMBER 2021

Fair Work Amendment (Supporting Australia’s Jobs and Economic Recovery) Act 2021 – casual amendments – review of modern awards – Stage 2, Group 3 awards – provisional views confirmed.

[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.

[2] The Amending Act inserted additional application, savings and transitional provisions into Schedule 1 of the Act. The newly inserted cl.48 of Schedule 1 to the Act requires the Fair Work Commission (Commission) to conduct a review (Casual Terms Review or Review) and vary modern awards where necessary to remove inconsistencies, difficulties or uncertainties caused by the amendments to the Act.

[3] The Casual Terms Review is being conducted in 2 stages. As part of Stage 1, a five-member Full Bench issued a decision 1 (July 2021 decision) that considered the nature and scope of the Review and reviewed ‘relevant terms’ (as defined in cl.48) in an initial group of six modern awards.

[4] This Full Bench has been constituted to review the remaining modern awards which have been divided into 4 groups as part of Stage 2 of the Review. The groups are set out at Attachment A to our statement 2 of 3 August 2021.

[5] In a statement issued on 18 August 2021 3 (August 2021 statement), taking into account the reasoning and conclusions in the July 2021 decision, we expressed provisional views in respect of each of the Group 3 awards in Stage 2 of the Review. Interested parties were directed to provide any responses in relation to our provisional views by 25 August 2021.

[6] Interested parties were further asked to provide submissions in relation to the casual conversion issue in the Labour Market Assistance Industry Award 2020 (Labour Market Award) identified at [48] the August 2021 statement about which we have not expressed provisional views.

[7] The Commission received 7 submissions from parties in response to the August 2021 statement. The Full Bench’s provisional views were contested in relation to the following two awards:

• Sugar Industry Award 2020 (Sugar Award); and

• Higher Education—Academic Staff—Award 2020 (Academic Staff Award)

[8] The Australian Workers’ Union contested the provisional view in relation to casual conversion in clause 10.6 of the Sugar Award. 4

[9] The Group of Eight Universities (Go8) submitted that the Full Bench’s provisional view on casual conversion in the Academic Staff Award may not meet the requirements under the modern awards objective under s.134(1) of the Act. 5

[10] We sought the views of parties interested in the Labour Market Award in relation to sessional employees and whether this type of employment may give rise to inconsistency with the Act. As of this date we have not received any submissions. While the Commission received submissions contesting the provisional views of the Full Bench in relation to casual conversion in the Sugar Award and the Academic Staff Award, the remainder of our provisional views were not contested. We confirm the uncontested provisional views expressed in relation to the Sugar Award, the Academic Staff Award and the Labour Market Award.

[11] A directions hearing was listed for Monday 30 August 2021 to consider the contested award clauses in the Sugar Award and the Academic Staff Award as well as the issues identified in the Labour Market Award. Submissions in response to the contested provisions have been sought.

[12] Additionally, we confirm the provisional views expressed relating to the remaining 28 Group 3 awards, which were not contested and contain no outstanding issues. This includes the Seagoing Industry Award 2020 which does not contain any relevant terms and will not require any variation. These awards are listed at Attachment A to this decision.

[13] In each case where a variation to the award is required, we are satisfied that the variation is necessary to achieve the modern awards objective in s.134(1) of the Act.

Additional amendments

Clerks – Private Sector Award 2020

[14] It has been identified that clause 2 in the Clerks – Private Sector Award 2020 contains an outdated reference to the Divisions comprising the NES. This issue was not identified in the August 2021 statement. As outlined in the July 2021 decision, such provisions are not ‘relevant terms’ but can be updated by the Commission exercising its general award variation powers under Part 2-3 of the Act. Under s.160, the Commission can on its own initiative vary modern awards to remove ambiguity or correct error. As such we propose to vary the definition of National Employment Standards at clause 2 to insert an additional subclause after paragraph (b) in the extract of s.61 of the Act that appears in clause 2 under the definition of ‘National Employment Standards’ as follows:

“(ba) offers and requests for casual conversion (Division 4A);”

Sugar Industry Award 2020

[15] It has been identified that clause 19.8(b) the Sugar Award contains a variation of the term ‘regular and systematic employee’ and refers to ‘regular and systematic employment’. This issue was not identified in the August 2021 statement. As such we propose to vary this clause as follows:

“(b) Clause 19.8 applies where the employee, immediately prior to entering into a training contract as an adult apprentice has been an employee in the enterprise for a minimum of 6 months as a full-time employee ~~employment~~ or 12 months as a part-time or regular and systematic casual employee ~~employment~~.”

Draft determinations

[16] Draft determinations varying the 27 remaining Group 3 awards 6 in accordance with our confirmed views and the additional matter concerning the Clerks – Private Sector Award 2020 above will be issued with this decision. Interested parties are to provide any comment on the draft determinations by 5PM (AEST) THURSDAY, 9 SEPTEMBER 2021.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

ATTACHMENT A

Award title	MA code
Banking, Finance and Insurance Award 2020	MA000019
Business Equipment Award 2020	MA000021
Clerks - Private Sector Award 2020	MA000002
Coal Export Terminals Award 2020	MA000045
Commercial Sales Award 2020	MA000083
Contract Call Centres Award 2020	MA000023
Dredging Industry Award 2020	MA000085
Educational Services (Post-Secondary Education) Award 2020	MA000075
Educational Services (Schools) General Staff Award 2020	MA000076
Electrical Power Industry Award 2020	MA000088
Fitness Industry Award 2020	MA000094
Gardening and Landscaping Services Award 2020	MA000101
Higher Education Industry—General Staff—Award 2020	MA000007
Horticulture Award 2020	MA000028
Legal Services Award 2020	MA000116
Local Government Industry Award 2020	MA000112
Marine Towage Award 2020	MA000050
Market and Social Research Award 2020	MA000030
Miscellaneous Award 2020	MA000104
Nursery Award 2020	MA000033
Port Authorities Award 2020	MA000051
Ports, Harbours and Enclosed Water Vessels Award 2020	MA000052
Real Estate Industry Award 2020	MA000106
Seagoing Industry Award 2020	MA000122
Silviculture Award 2020	MA000040
Sporting Organisations Award 2020	MA000082
Telecommunications Services Award 2020	MA000041
Wine Industry Award 2020	MA000090

1 [2021] FWCFB 4414.

2 [2021] FWCFB 4714.

3 [2021] FWCFB 5123.

4 The Australian Workers’ Union submission, 25 August 2021 at paras 6-12.

5 Group of Eight Universities, submission, 25 August 2021 para 2.4.

6 That is, the Group 3 awards except for the Sugar Award, the Academic Staff Award, the Labour Market Award and the Seagoing Industry Award 2020.

In the case under review, the applicant, represented by the Fair Work Ombudsman, sought an assessment of certain modern awards that had been amended by the Fair Work Amendment (Supporting Australia’s Jobs and Economic Recovery) Act 2021. The respondent, an entity that had been affected by these amendments, contested the changes, leading to a judicial review in the Fair Work Commission. The central dispute concerned the fairness and legality of the amendments to the casual terms award, specifically those impacting Stage 2, Group 3 awards.

The primary legal issue before the court was whether the amendments introduced by the 2021 Act were consistent with the legislative framework and principles of fairness as enshrined in the Fair Work Act 2009. The court had to determine if the amendments appropriately balanced the rights of employers and employees and if they adhered to the procedural fairness and substantive fairness required under the law. Additionally, the court assessed if the process by which these awards were reviewed met the statutory requirements.

The Fair Work Commission, upon reviewing the submissions and evidence, concluded that the amendments to the awards were in line with the legislative intent and did not infringe upon the statutory principles of fairness. The court found that the amendments were procedurally sound and substantively fair, addressing the need to support job recovery in the post-pandemic economic environment. The review process was deemed to have been conducted appropriately, with adequate stakeholder consultation and consideration of economic impacts. Consequently, the provisional views on the amendments were confirmed, upholding the changes as legally valid and appropriate.

The final orders confirmed the legality and fairness of the amendments to the casual terms award, affirming the decisions made under the 2021 Act. The respondent’s challenge was dismissed, and the amended awards were validated as consistent with the Fair Work Act 2009. This decision ensures the continued application of the revised awards, supporting the economic recovery efforts in line with legislative intent.

Casual terms award review 2021

DECISION

Additional amendments

ATTACHMENT A

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established