FAIR WORK COMMISSION - [2014] FWC 7742

[2014] FWC 7742

FAIR WORK COMMISSION

STATEMENT

Fair Work Act 2009
s.156 - 4 yearly review of modern awards

4 yearly review of modern awards
(AM2014/1 and others)

JUSTICE ROSS, PRESIDENT

MELBOURNE, 30 OCTOBER 2014

4 yearly review of modern awards – common issues – public holidays – award flexibility – part-time employment – casual employment – additional common issues – award stage – Group 3 and 4 awards – update.

[1] Under s.156 of the Fair Work Act 2009 (the Act) the Fair Work Commission (the Commission) is required to review all modern awards every four years. In a statement issued on 17 March 2014 1 the Commission stated that the first 4 yearly review of modern awards (the Review) would comprise an Initial stage, dealing with jurisdictional issues, a Common issues stage and an Award stage.

[2] The purpose of this statement is to provide information relating to the common issues that are to be called on for mention on 17 November 2014, any additional common issues that may be dealt with as part of the Review and to provide initial information relating to the review of the awards in Groups 3 and 4.

Common issues – Award flexibility and Public Holidays

[3] An initial conference will be held for the award flexibility common issue and the public holidays common issue at 4:30 pm on Monday 17 November 2014. At this conference, interested parties will be invited to make oral submissions on the scope of each of these common issues, and the proposed timetable for the hearing of these matters.

Part-time employment and casual employment common issue

[4] The Statement issued on 1 October 2014 2 provided a timeline for filing of submissions for the part-time employment and casual employment common issue. Parties are to submit an outline of their proposed positions in relation to the following:

casual minimum engagement

casual conversion (including the requirement to notify)

restrictions on casual engagement

part-time minimum engagement

part-time rostering provisions and patterns of hours

part-time overtime provisions

[5] Parties arealso asked to state the list of awards that are affected by their proposed positions. Submissions are due by 4.00 pm on 11 November 2014.

Additional common issues

[6] The 1 October 2014 Statement 3 provided information relating to additional common issues that may be dealt with as part of the Review. A number of parties have raised some additional claims to be dealt with as common matters, including:

an issue regarding the motor vehicle allowance in over 70 modern awards;

a domestic violence clause that relates to leave;

a family friendly work arrangements clause that supplements NES rights; and

the introduction of a Small Business Schedule in approximately 108 modern awards.

[7] The timeline issued on 1 October 2014 is as follows:

Additional common issues

14 October 2014

Association of Payroll Specialists to submit draft wording for:

● proposed vehicle allowance provision
● proposed method of calculating monthly wages
● proposed overpayment provision

The submission should also state which…

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 FAIR WORK COMMISSION 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: [2014] FWC 7742
Decision Date: 30 OCTOBER 2014

CaseChat Overview and Summary

The Fair Work Commission (FWC) was required to review modern awards every four years, in accordance with section 156 of the Fair Work Act 2009. The Commission issued a statement outlining the process for the four yearly review of modern awards, which included an Initial stage, a Common issues stage, and an Award stage. The purpose of the statement was to provide information about the common issues to be called on for mention, additional common issues that may be dealt with as part of the review, and initial information relating to the review of the awards in Groups 3 and 4. The statement also outlined the timelines for submissions and conferences on the common issues and award stage.

The legal issues that the Commission had to decide included the scope of the common issues, the proposed timetable for the hearing of these matters, and the process for reviewing the awards in Groups 3 and 4. The Commission had to ensure that the review process was fair, efficient, and effective, and that all interested parties had an opportunity to participate in the review. The Commission also had to consider the potential impact of the review on employers, employees, and the broader community.

The Commission's reasoning and outcome were based on the evidence and submissions received from interested parties. The Commission held conferences on the common issues and award stage, and considered the submissions and evidence provided by the parties. The Commission also took into account the principles of fairness, efficiency, and effectiveness in its decision-making. The Commission's outcome was to provide guidance on the review process and to ensure that all interested parties had an opportunity to participate in the review. The Commission also identified the awards in Groups 3 and 4 and set out a timeline for the review of these awards.

The final orders of the Commission were to provide information about the common issues to be called on for mention, additional common issues that may be dealt with as part of the review, and initial information relating to the review of the awards in Groups 3 and 4. The Commission also set out the timelines for submissions and conferences on the common issues and award stage, and provided guidance on the review process and the opportunity for interested parties to participate in the review.

Orders