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Family Friendly Working Arrangements

Family Friendly Working Arrangements

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Case Copied 26 March 2018 80 min read

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[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
DEPUTY PRESIDENT GOOLEY
COMMISSIONER SPENCER

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 1.2 The Process	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

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: [2018] FWCFB 1692
Decision Date: 26 MARCH 2018

CaseChat Overview and Summary

The Australian Council of Trade Unions (ACTU) sought a declaration that it had the right to request the Fair Work Commission (FWC) to review the family friendly working arrangements in the National Electricity and Gas Collection Agreement 2016. The FWC had previously rejected the ACTU’s claim, prompting the ACTU to appeal to the Federal Court. The primary legal issue was whether the ACTU had the right to request a review of the family friendly working arrangements under section 65 of the Fair Work Act 2009. The court considered whether the ACTU was eligible to make such a request and if the FWC’s decision was lawful and rational.

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