FAIR WORK COMMISSION - [2014] FWC 8583

[2014] FWC 8583

FAIR WORK COMMISSION

STATEMENT

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

4 yearly review of modern awards
(AM2014/196 and others)

JUSTICE ROSS, PRESIDENT

SYDNEY, 1 DECEMBER 2014

4 yearly review of modern awards – common issues – casual employment and part-time employment –– additional common issues.

Background

[1] Under s.156 of the Fair Work Act 2009 (the FW Act) the Fair Work Commission (the Commission) is required to review all modern awards every four years, starting as soon as practicable after each 4th anniversary of the commencement of Part 2-3 of the FW Act. Part 2-3 commenced on 1 January 2010 and the first review (the Review) is to start as soon as practicable after 1 January 2014, and has commenced.

[2] 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 issues2, a Common issues stage and an Award stage. The Commission identified a number of common issues to be dealt with as part of the Review:

Annual leave (AM2014/47)

Award flexibility/facilitative provisions (AM2014/300)

Public holidays (AM2014/301)

Transitional/sunsetting provisions (AM2014/190)

Part-time employment (AM2014/196) and casual employment (AM2014/197)

[3] A matter will not necessarily be regarded as a common issue just because variations are sought to more than one award. ‘Common issues’ are likely to be proposals for significant variation or change across the award system, such as applications which seek to change a common or core provision in most, if not all, modern awards.

[4] A matter identified as a common issue will be referred to a Full Bench for determination in a ‘stand alone’ proceeding, as distinct from having the issue determined during the award stages of the Review. The Full Bench will be responsible for managing the proceedings for the common issue. This may result in the Full Bench issuing determinations varying particular modern awards or issuing statements of principle that may be considered when reviewing individual modern awards.

[5] To ensure that the rights of all interested parties are protected the review of a particular award will not be finalised until all of the common issues have been determined. While the review of a particular award will not be finalised until all of the common issues have been determined, this will not preclude a determination being issued varying one or more modern awards and those determinations taking effect before the completion of the Review.

The Purpose of this Statement

[6] The purpose of this Statement is to identify whether issues that have been raised recently by a number of parties will be dealt with as ‘common issues’ in the Review and to outline the approach which will be adopted for dealing with issues related to casual and part-time employment that have been raised across a number of modern awards.

[7] In a Statement issued on 1 October 2014 the Commission sought the views of interested parties on…

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 8583
Decision Date: 1 DECEMBER 2014

CaseChat Overview and Summary

The Fair Work Commission, under the Fair Work Act 2009, conducted a four-yearly review of modern awards, which involved determining whether certain issues raised by various parties should be treated as "common issues." The issues in question related to casual and part-time employment, domestic violence leave, family-friendly work arrangements, and other employment-related matters. The Australian Council of Trade Unions (ACTU) proposed significant changes, such as casual conversion rights and minimum engagement provisions, which were opposed by employer organizations. The court had to decide whether these issues should be treated as common issues and how to efficiently manage the review process.

The court concluded that the ACTU's claims related to casual and part-time employment were appropriately characterized as common issues and would be referred to a Full Bench for a stand-alone proceeding. This characterization pertained to the procedural aspects of hearing and determining the claims rather than implying a uniform application across all awards. The court also decided that other proposed common issues, such as those related to domestic violence leave and family-friendly work arrangements, would be dealt with as common issues but would first address any preliminary or jurisdictional issues. Meanwhile, issues such as motor vehicle allowances, monthly wage calculations, and mechanisms for recovering overpayments were deemed unsuitable for common issue treatment and would be addressed during the award stage.

The court's reasoning was based on the need to ensure efficient handling of the review process and to avoid inconsistent decisions. By referring certain issues to a Full Bench for a stand-alone hearing, the court aimed to manage the review process effectively while allowing interested parties to present their views on the merits of the proposed changes. The court emphasized that the review must focus on the particular terms and operation of each award rather than a global assessment, ensuring that each award is reviewed in its own right. The final orders included directions for scheduling preliminary/jurisdictional issues related to domestic violence leave and family-friendly work arrangements to be heard in July 2015, while other matters would be dealt with during the award stage.

Orders