FAIR WORK COMMISSION

[2014] FWC 7858

[2014] FWC 7858

FAIR WORK COMMISSION

STATEMENT AND DIRECTIONS

Fair Work Act 2009
s.161 - Variation of modern award on referral by Australian Human Rights Commission

Variation of modern award on referral by Australian Human Rights Commission
(AM2014/67)

JUSTICE ROSS, PRESIDENT MELBOURNE, 5 NOVEMBER 2014

Variation of modern award on referral by Australian Human Rights Commission –Black Coal Mining Industry Award 2010.

Introduction

[1] Under section 46PW of the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act) the Australian Human Rights Commission (AHRC) must refer an industrial instrument to the Fair Work Commission (the Commission) where it appears an act under that instrument was discriminatory.

[2] In correspondence dated 20 October 2014 the AHRC referred an issue pursuant to section 46PW(1)(d) of the AHRC Act.

[3] The provision under which the discriminatory act is said to have occurred is clause 14.4(c) of the Black Coal Mining Industry Award 2010 (the Black Coal award). Clause 14.4(c) of the Black Coal award states:

"The amount of payment due under clause 14.4 is not to be more than what an employee would have received had the employee remained in employment with the employer until the age of 60 years."

[4] Section 161 of the Fair Work Act 2009 provides:

161 Variation of modern award on referral by Australian Human Rights Commission

(1) The FWC must review a modern award if the award is referred to it under section 46PW of the Australian Human Rights Commission Act 1986 (which deals with discriminatory industrial instruments). 


(2) The following are entitled to make submissions to the FWC for consideration in the review:

(a) if the referral relates to action that would be unlawful under Part 4 of the Age Discrimination Act 2004—the Age Discrimination Commissioner;

(b) if the referral relates to action that would be unlawful under Part 2 of the Disability Discrimination Act 1992—the Disability Discrimination Commissioner;

(c) if the referral relates to action that would be unlawful under Part II of the Sex Discrimination Act 1984—the Sex Discrimination Commissioner.

(3) If the FWC considers that the modern award reviewed requires a person to do an act that would be unlawful under any of the Acts referred to in subsection (2) (but for the fact that the act would be done in direct compliance with the modern award), the FWC must make a determination varying the modern award so that it no longer requires the person to do an act that would be so unlawful.

[5] In correspondence dated 9 May 2014 the Construction, Forestry, Mining and Energy Union sought to vary Clause 14.4(c) of the Black Coal award as part of the current 4 yearly review of modern awards (the Review). The hearing in relation to the Black Coal award is listed at 11.00am on 19 November 2014.

[6] The Commission will deal with the referral from the AHRC concurrently with the Review.

Directions

1. If the Age Discrimination Commissioner would like to make a submission on this issue pursuant to s.161(2)(a), the submission should be filed by 4.00 pm on 12 November 2014.

2. The matter is listed for hearing before a Full Bench at 11.00 am on Wednesday 19 November 2014 (concurrent with the 4 yearly review of the Black Coal Industry Award 2010 in AM2014/67). A schedule for these hearings will be published by the Commission shortly.

3. Leave is granted to apply generally.

4. All material should be sent to [email protected].

PRESIDENT

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