| [2018] FWCFB 1692 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.156–4 yearly review of modern awards
Family Friendly Working Arrangements
(AM2015/2)
JUSTICE ROSS, PRESIDENT | MELBOURNE, 26 MARCH 2018 |
4 yearly review – Family friendly working arrangements – claim by ACTU – s.65 Fair Work Act 2009 – right to request – ACTU claim rejected – provisional model term proposed.
Chapters | Page | Paragraph | |
1. | Introduction 1.1 Background to the Claim | 6 | [1] [14] |
2. | Legislative Framework 2.1 The Review 2.2 Existing provisions relevant to family friendly working arrangements 2.2.1 Section 65 2.2.2 Other statutory provisions relevant to family friendly working arrangements | 14 | [36] [71] [82] |
3. | Jurisdictional Objections 3.1 Introduction 3.2 The Submissions 3.2.1 ACTU submissions 3.2.2 ACCI submissions 3.2.3 Ai Group submissions 3.3 Consideration | 29 | [97] [103] [112] [123] [132] |
4. | Merit Submissions 4.1 ACTU submissions 4.2 ACCI submissions 4.3 Ai Group submissions 4.4 Other Employer party submissions | 46 | [165] [166] [169] [170] |
5. | The Evidence 5.1 Overview of labour force data 5.2 Survey Evidence 5.2.1 Joint Employer Survey 5.2.2 VACC Survey 5.3 Witness Evidence 5.3.1 Expert evidence 5.3.2 Lay witness evidence 5.4 Findings | 51 | [176] [222] [234] [241] [355] [391] |
6. | Conclusion and Next Steps | 104 | [393] |
| ATTACHMENTS | Page |
|---|---|
Attachment A – List of Statements issued | 126 |
Attachment B – List of Submissions filed | 127 |
Attachment C – Research Reference List | 129 |
Attachment D – Witness Statements | 144 |
Attachment E – List of Cases | 146 |
Attachment F – Agreed matters | 148 |
ABBREVIATIONS
Act | Fair Work Act 2009 (Cth) |
ABI | Australian Business Industrial and the New South Wales Business Chamber |
ABS | Australian Bureau of Statistics |
ACCI | Australian Chamber of Commerce and Industry |
ACTU | Australian Council of Trade Unions |
AFPCS | Australian Fair Pay and Conditions Standard |
AHRC | Australian Human Rights Commission |
AI Act | Acts Interpretation Act 1901 (Cth) |
Ai Group | Australian Industry Group |
AIRC | Australian Industrial Relations Commission |
Austen Report | Expert report of Professor Siobhan Austen |
AWALI | Australian Work and Life Index |
AWRS | Australian Workplace Relations Study |
Claim | The award term sought by the ACTU reproduced at paragraph [10] of this decision |
CMIEG | Coal Mining Industry Employer Group |
Commission | Fair Work Commission |
EM | Explanatory Memorandum to the Fair Work Bill 2008 |
FFWH | Family Friendly Working Hours, as defined in the Claim |
General Manager’s 2015 Report | General Manager’s report into the operation of the provisions of the National Employment Standards relating to requests for flexible working arrangements and extensions of unpaid parental leave under s.653 of the Fair Work Act 2009 (Cth) |
HILDA | Household, Income and Labour Dynamics in Australia |
IFA | Individual flexibility arrangement |
Murray Report | Expert report of Dr Jill Murray |
NatRoad | National Road Transport Association |
NES | National Employment Standards |
NFF | National Farmers’ Federation |
NRA | National Retail Association |
Panel | Expert Review Panel |
PHIEA | Private Hospital Industry Employer Associations |
Review | 4 yearly review of modern awards |
Stanford Report | Expert report of Dr James Stanford |
Supplementary EM | Supplementary Explanatory Memorandum to the Fair Work Bill 2008 |
Toth Report | Expert report of Ms Julie Toth |
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- Case
- [2018] FWCFB 1692
- Decision Date
CaseChat Overview and Summary
The court found that the ACTU was not eligible to request a review of the family friendly working arrangements as it was not a party to the agreement. The court further determined that the FWC's decision to reject the ACTU’s claim was lawful and rational. The court reasoned that the FWC had correctly interpreted section 65 of the Fair Work Act 2009, which requires that only parties to the agreement can request a review. The court held that the FWC’s decision was not flawed as the ACTU was not a party to the agreement and therefore did not have standing to make such a request.
Consequently, the court dismissed the ACTU’s appeal and upheld the FWC’s decision. The court proposed a provisional model term for family friendly working arrangements to be reviewed every four years. This provisional model term was intended to provide clarity and guidance for future reviews of such arrangements. The court’s decision reinforced the importance of standing in making requests under the Fair Work Act 2009 and the role of the FWC in interpreting and applying the provisions of the Act.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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