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

SYDNEY, 28 NOVEMBER 2014

4 yearly review of modern awards – award stage – Group 3 and 4 awards – penalty rates issues.

[1] This statement deals with the outcomes of a conference held on 18 November 2014 in relation to a range of administrative and programming issues associated with the award stage of the 4 yearly review of modern awards (the Review) for awards in Groups 3 and 4. A transcript of the conference is available on the Fair Work Commission website. A list of the proposed sub-groupings for awards in Group 3 and 4 is set out at Attachment A of this Statement.

The General Process

[2] At the conference on 18 November 2014 there was broad support for the adoption of a similar process to that undertaken in relation to the Group 1 awards, that is:

(i) The awards in groups 3 and 4 will be divided into sub-groups to facilitate a more efficient hearing process and for the convenience of parties who only have an interest in a limited number of the awards being reviewed (the sub-groups are dealt with in more detail below).

(ii) Initial conferences will be held on 10 and 11 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 on 16 December 2014.

(iii) 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.

(iv) 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 and there will be a consultation period in which interested parties will be able to comment on the proposed directions and add to the range of issues identified in respect of each award. A Final Statement will be issued after the close of the consultation period.

(v) A draft of the proposed sub-groups is attached. Parties who want to comment on the draft groupings should do so by no later than 4.00 pm on Wednesday 10 December 2014. A final version of the sub-groupings will be published with the listing notice for the February conferences,…

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 8575
Decision Date: 28 NOVEMBER 2014

CaseChat Overview and Summary

The Fair Work Commission (FWC) presided over a conference on 18 November 2014, which addressed the administrative and procedural issues linked to the award stage of the 4 yearly review of modern awards (the Review) for awards in Groups 3 and 4. The conference aimed to streamline the review process and ensure that parties with specific interests in certain awards could participate efficiently. The review process outlined in the conference involves dividing the awards into sub-groups, holding initial conferences to identify issues, requesting parties to outline proposed changes, publishing draft and final statements with proposed directions, and scheduling subsequent conferences and hearings. The Commission also addressed the issue of penalty rates in specific awards and scheduled a conference for 12 December 2014 to discuss the programming and scheduling of these matters. Additionally, the Commission responded to requests for separate conferences and considerations regarding specific awards, such as the Broadcasting and Recorded Entertainment Award 2010 and the State Government Agencies Administration Award 2010.

The legal issues before the FWC included determining the most efficient process for reviewing the modern awards in Groups 3 and 4, establishing a timeline and framework for submissions and conferences, and addressing specific concerns regarding penalty rates and other administrative matters. The Commission had to balance the need for an organised and efficient review process with the rights of interested parties to participate and present their cases effectively. Furthermore, the Commission needed to ensure that the process allowed for meaningful discussions on penalty rates and other significant issues.

The FWC decided to adopt a structured process for the review, similar to the one used for Group 1 awards, which included dividing the awards into sub-groups, holding initial conferences to outline issues, and publishing draft and final statements with proposed directions. The Commission also scheduled a specific conference to address penalty rates and responded to other administrative requests. The rationale behind these decisions was to create a transparent, efficient, and fair review process that allowed all interested parties to participate and have their concerns heard. The Commission aimed to balance the need for an organised review with the rights of parties to present their cases and ensure that the process was fair and equitable.

In conclusion, the FWC issued a statement outlining the process for the 4 yearly review of modern awards for Groups 3 and 4. The Commission adopted a structured process that involved dividing the awards into sub-groups, holding initial conferences, and publishing draft and final statements. The Commission also addressed specific concerns regarding penalty rates and other administrative matters. The rationale behind these decisions was to create a transparent, efficient, and fair review process that allowed all interested parties to participate and have their concerns heard.

Orders