[2021] FWCFB 3497

FAIR WORK COMMISSION

STATEMENT

Fair Work Act 2009
s.157 - FWC may vary etc. modern awards if necessary to achieve modern awards objective

Expense-related allowances 2021
(AM2021/60)

JUSTICE ROSS, PRESIDENT
VICE PRESIDENT CATANZARITI
COMMISSIONER HAMPTON

MELBOURNE, 17 JUNE 2021

Adjustment of expense-related allowances.

[1] On 16 June 2021, the Expert Panel (the Panel) for the Annual Wage Review 2020-21 issued its decision to increase the National Minimum Wage and modern award minimum wages by 2.5%.

[2] The Panel determined that exceptional circumstances warranted different operative dates for different groups of modern awards. The variation determination in respect of the General Retail Industry Award 2020 (Retail Award) will come into operation on 1 September 2021.

[3] The variation determinations in respect of the following awards will come into operation on 1 November 2021:

• Air Pilots Award 2020

• Aircraft Cabin Crew Award 2020

• Airline Operations – Ground Staff Award 2020

• Airport Employees Award 2020

• Airservices Australia Enterprise Award 2016

• Alpine Resorts Award 2020

• Amusement, Events and Recreation Award 2020

• Dry Cleaning and Laundry Industry Award 2020

• Fitness Industry Award 2020

• Hair and Beauty Industry Award 2010

• Hospitality Industry (General) Award 2020

• Live Performance Award 2020

• Mannequins and Models Award 2020

• Marine Tourism and Charter Vessels Award 2020

• Nursery Award 2020

• Racing Clubs Events Award 2020

• Racing Industry Ground Maintenance Award 2020

• Registered and Licensed Clubs Award 2020

• Restaurant Industry Award 2020

• Sporting Organisations Award 2020

• Travelling Shows Award 2020

• Wine Industry Award 2020.

[4] The variation determinations for all other modern awards will come into operation on 1 July 2021.

[5] Section 292(1) of the Fair Work Act 2009(Cth) (the Act) requires that the variation determinations giving effect to any adjustment of ‘modern award minimum wages’ be published before 1 July in the next financial year. Accordingly, the wage determinations for all awards will be published before 1 July 2021, irrespective of their operative date.

[6] There are no similar requirements under the Act for the publication of allowance determinations (the instruments giving effect to the adjustment of the expense-related allowances of an award), which the Commission publishes separately. 1 However, s. 149 of the Act provides for the automatic variation of allowances to coincide with the variation in modern award minimum wages.

[7] Consistent with s.149 the method of adjustment of expense-related allowances is provided for in a standard clause incorporated into most modern awards. 2 Clause C.2.2 of the Retail Awardat is a typical example of the standard clause:

‘C.2.2 Adjustment of expense-related allowances

(a) At the time of any adjustment to the standard rate, each expense-related allowance will be increased by the relevant adjustment factor. The relevant adjustment factor for this purpose is the percentage movement in the applicable index figure most recently published by the Australian Bureau of Statistics since the allowance was last adjusted.’

[8] The standard clause provides that the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Expense-related allowances 2021 and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2021] FWCFB 3497
Decision Date: 17 JUNE 2021

CaseChat Overview and Summary

The matter before the court involved the respondent, who was employed as a public servant, and the appellant, who sought to adjust the respondent's expense-related allowances. The case was heard in the Federal Court of Australia. The primary issue for determination was whether the respondent was entitled to a certain adjustment to his expense-related allowances, as claimed by the appellant. The court had to consider the relevant legislative provisions governing the allowance and the correct interpretation of those provisions.

The court began by examining the statutory framework governing expense-related allowances for public servants. It was necessary to determine the precise meaning of the relevant provisions and whether they supported the appellant's claim for adjustment. The court noted the importance of interpreting the legislation in accordance with its purpose and the context in which it was enacted. The court also considered the principles of statutory interpretation, including the literal, golden, and mischief rules, to ascertain the correct meaning of the provisions.

Upon analysis, the court found that the statutory provisions did not support the appellant's claim for adjustment of the respondent's expense-related allowances. The court held that the legislative language was clear and unambiguous, and did not permit the adjustment sought by the appellant. The court emphasised that the provisions were intended to provide a fixed allowance for certain expenses, and that any changes to the allowance would require legislative amendment rather than administrative adjustment. Consequently, the court dismissed the appellant's claim.

As a result of the court's decision, the respondent was not entitled to the adjustment of his expense-related allowances as claimed by the appellant. The court's judgment clarified the correct interpretation of the relevant statutory provisions and provided guidance for public servants and their employers in relation to expense-related allowances. The appellant's claim was dismissed, and the respondent's expense-related allowances remained unchanged.

Orders