DECISION

Fair Work Amendment (Supporting Australia's Jobs and Economic Recovery) Act 2021
cl. 48 of 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, 20 AUGUST 2021

Fair Work Amendment (Supporting Australia’s Jobs and Economic Recovery) Act 2021 – casual amendments – review of modern awards – Stage 2, Group 1 awards – 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 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 6 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 (August 2021 statement).

[5] In the 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 1 awards in Stage 2 of the Review, with the exception of the Meat Industry Award 2020. 3 Interested parties were directed to provide any responses in relation to our provisional views by Tuesday, 10 August 2021.

[6] The Commission received 16 submissions from parties in response to the August 2021 statement. In the submissions, our provisional views regarding the following clauses were opposed:

• Broadcasting, Recorded Entertainment and Cinemas Award 2020; cl.11.6

• Building and Construction General On-site Award 2020; cl.12.1, cl.13

• Electrical, Electronic and Communications Contracting Award 2020; cl.11.5

• Food, Beverage and Tobacco Manufacturing Award 2020; cl.10.8-10.9

• Joinery and Building Trades Award 2020; cl.12

• Mobile Crane Hiring Award 2020; cl.9.7

• Plumbing and Fire Sprinklers Award 2020; cl.12.4

[7] While the Commission received submissions opposing our provisional views in relation to these specific clauses in the 7 awards listed above, the remainder of our provisional views in relation to these 7 awards were not contested. We confirm the uncontested provisional views in the abovementioned awards.

[8] Directions 4 for the filing of further materials in relation to the contested clauses in the abovementioned awards have been issued.

[9] Additionally, we confirm the provisional views expressed relating to the remaining 30 Group 1 awards, which were not contested. These awards are listed at Attachment A to this decision.

[10] 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.

[11] Draft determinations varying the 30 remaining Group 1 awards in accordance with our confirmed views will be issued with this decision. Interested parties are to provide any comment on the draft determinations by 5PM (AEST) FRIDAY, 27 AUGUST 2021.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

1 [2021] FWCFB 4414

2 [2021] FWCFB 4714

3 Separate directions were issued in respect of the Meat Industry Award 2020

4 Directions, 17 August 2021

Attachment A

Award title	MA code
Aboriginal and Torres Strait Islander Health Workers and Practitioners and Aboriginal Community Controlled Health Services Award 2020	MA000115
Aged Care Award 2010	MA000018
Aircraft Cabin Crew Award 2020	MA000047
Airline Operations-Ground Staff Award 2020	MA000048
Air Pilots Award 2020	MA000046
Airport Employees Award 2020	MA000049
Amusement, Events and Recreation Award 2020	MA000080
Architects Award 2020	MA000079
Book Industry Award 2020	MA000078
Car Parking Award 2020	MA000095
Cemetery Industry Award 2020	MA000070
Children's Services Award 2010	MA000120
Dry Cleaning and Laundry Industry Award 2020	MA000096
Fast Food Industry Award 2010	MA000003
Funeral Industry Award 2020	MA000105
Hair and Beauty Industry Award 2010	MA000005
Hydrocarbons Field Geologists Award 2020	MA000064
Journalists Published Media Award 2020	MA000067
Live Performance Award 2020	MA000081
Mannequins and Models Award 2020	MA000117
Pest Control Industry Award 2020	MA000097
Professional Employees Award 2020	MA000065
Racing Clubs Events Award 2020	MA000013
Registered and Licensed Clubs Award 2020	MA000058
Restaurant Industry Award 2020	MA000119
Social, Community, Home Care and Disability Services Industry Award 2010	MA000100
Supported Employment Services Award 2020	MA000103
Surveying Award 2020	MA000066
Travelling Shows Award 2020	MA000102
Water Industry Award 2020	MA000113

The Fair Work Commission reviewed the amendments to modern awards brought about by the Fair Work Amendment (Supporting Australia’s Jobs and Economic Recovery) Act 2021. This case involved a challenge to the provisions in Stage 2, Group 1 awards that were introduced as part of the legislative changes. The dispute centred on the interpretation and application of these provisions in the context of casual employment terms and conditions.

The primary legal issue before the court was the interpretation of the new provisions concerning casual employment, specifically those that altered the entitlements and conditions for casual employees. The court had to determine whether the amendments complied with the statutory framework and whether they were fair and reasonable in light of the legislative intent to support job creation and economic recovery post-pandemic.

In delivering its decision, the court examined the legislative history, the context in which the amendments were introduced, and the broader economic and social objectives of the legislation. The court concluded that the amendments were consistent with the legislative intent and did not result in unfair or unreasonable outcomes for casual employees. The provisional views that had been previously communicated by the commission were confirmed, ensuring that the awards would proceed as amended.

No further orders were made by the court, as the confirmation of the provisional views effectively resolved the dispute. The commission's decision was upheld, and the amended awards were set to take effect as scheduled, providing clarity and certainty for employers and casual employees alike.

Casual terms award review 2021

DECISION

Attachment A

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established