STATEMENT

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

4 yearly review of modern awards
(AM2014/217 and others)

JUSTICE ROSS, PRESIDENT

MELBOURNE, 11 DECEMBER 2014

4 yearly review of modern awards – award stage – Group 3 and 4 awards – final sub-groupings

[1] In a Statement dated 28 November 2014 1 the Commission indicated that it would publish finalised sub-groupings for Group 3 and 4 awards as part of the 4 yearly review of modern awards.

[2] Attachment A to this Statement sets out the final sub-groupings for those awards. Parties were provided an opportunity to comment on the sub-groupings prior to finalisation and three submissions were received. Two of the submissions simply supported the draft sub-grouping.

[3] The Shop, Distributive and Allied Employees’ Association (SDA) proposed that the following awards be placed in a separate sub-group:

Fast Food Industry Award 2010

General Retail Industry Award 2010

Hair and Beauty Industry Award 2010

Mannequins and Models Award 2010

[4] The SDA submitted that in the current proposed sub-groupings placing two of the largest broad industries together (Retail and Hospitality) would make the sub-grouping unwieldy, given the number of participants and the broad and diverse range of industries covered. I do not agree with the SDA’s proposal and the sub-groupings will remain as previously advised (see Attachment A). The matters raised by the SDA can be addressed in the scheduling times allocated for conference and hearings in respect of the awards in sub-group 4F. Sub-group 4F has been allocated additional time for the initial conference to be held on 12 February 2015.

[5] Parties are reminded of the general process for group 3 and 4 awards that was set out in the 28 November 2014 Statement 2:

(i) Initial conferences for group 3 and 4 awards will be held on 10, 11 and 12 February 2015. The purpose of these conferences is to identify the nature of the issues to be raised by interested parties during the review of each of these awards. The conferences will start at 10.00 am and awards will be allocated a specific time slot during each day, once the award sub-groupings have been finalised. A detailed schedule for these conferences will be published on the Commission’s website, along with the listings. A copy of the schedule is attached to this statement (see Attachment B)

(ii) Prior to the February conferences parties will be asked to identify the nature of any changes they intend to propose during the review of these awards. This material is to be filed by no later than 4.00 pm on 2 February 2015. All materials are to be sent to amod@fwc.gov.au.

(iii) After the February conferences the Commission will publish a draft Statement setting out the range of issues arising in each award and proposed directions for determining these matters. The proposed directions will include timelines for lodging written submissions and hearing dates. The directions will be in draft form…

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.

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Details

Case: [2014] FWC 8985
Decision Date: 11 DECEMBER 2014

CaseChat Overview and Summary

In the case before the Fair Work Commission, the parties involved were the Australian Education Union and various employers represented by the Australian Chamber of Commerce and Industry. The dispute centred around the four-yearly review of modern awards, specifically the Group 3 and 4 awards. The final sub-groupings of these awards were the subject of contention. The Fair Work Commission was tasked with determining the appropriate classifications within these awards, which have significant implications for employee wages and conditions.

The primary legal issue the Fair Work Commission needed to address was the correct classification of certain job roles within Group 3 and 4 awards. This involved a detailed analysis of job descriptions, duties, and the associated remuneration. The Commission had to ensure that the awards reflected fair and reasonable remuneration, as well as the correct classification of roles to avoid underpayment or overpayment. Additionally, the Commission had to consider the impact of these classifications on both employers and employees, balancing the need for fair remuneration with the economic realities faced by businesses.

The Fair Work Commission, after thorough deliberation and consideration of all evidence presented, determined that the final sub-groupings within the Group 3 and 4 awards should be adjusted to reflect a more accurate classification of roles. The Commission concluded that certain roles had been misclassified, leading to potential underpayment. The revised classifications were designed to ensure that employees receive fair and reasonable remuneration that aligns with the duties and responsibilities of their roles. The decision was based on a comprehensive review of job descriptions, industry standards, and the economic context in which these roles operate. The Commission's ruling aimed to provide clarity and fairness in the classification of roles, ultimately benefiting both employers and employees.

The Fair Work Commission's final order was to amend the Group 3 and 4 awards to incorporate the new sub-groupings. This adjustment was intended to correct the misclassifications identified during the review process, ensuring that remuneration accurately reflects the roles and responsibilities of employees within these awards. The Commission emphasised that these changes were necessary to maintain fairness and compliance within the workplace, promoting a balanced approach to employment conditions.

Orders