Guidelines in relation to the operation of Part 2-7A

[2024] FWC 3024

FAIR WORK COMMISSION

STATEMENT

Fair Work Act 2009

s.306W—FWC may make written guidelines about Part 2-7A

Guidelines in relation to the operation of Part 2-7A

(LH2024/24)

JUSTICE HATCHER, PRESIDENT

SYDNEY, 31 OCTOBER 2024

Creation of written guidelines concerning the operation of Part 2-7A of the Fair Work Act 2009 (Cth) – guidelines made.

Section 306W of the Fair Work Act 2009 (Cth) (FW Act) provides for the Commission to make written guidelines in relation to the operation of Part 2-7A of the FW Act, which deals with regulated labour hire arrangement orders. If made, the guidelines must be in force by 1 November 2024.

On 14 October 2024, the Commission published draft guidelines on the operation of Part 2-7A. In an accompanying statement,[1] I noted that the Commission has not yet issued a decision in relation to a contested application made under Part 2-7A and indicated that the guidelines, if and when made, will be updated over time to reflect significant decisions made by the Commission.

The statement invited interested persons to comment on the content of the draft guidelines, and whether the guidelines should be made at all. Comments were due by 25 October 2024. The Commission has received comments from a number of interested persons. These broadly support the Commission making the guidelines and updating them over time to reflect significant decisions made under Part 2-7A. No person expressed opposition to the making of guidelines.

I have determined to make the guidelines. Taking into account comments made in relation to the draft guidelines, minor amendments have been made to clarify the purpose of the guidelines and update some legislative references, including adding additional content to the section of the guidelines which deals with the anti-avoidance provisions in Division 4 of Part 2‑7A.

Some of the comments received by the Commission sought further guidance on how particular provisions of Part 2-7A will operate (for example, some interested parties sought further guidance in relation to the protected rate of pay section of the guidelines). Given the likelihood that these matters may be the subject of future decisions of the Commission, I am not inclined to make changes with respect to those matters within the guidelines at this time.

As foreshadowed in my statement of 14 October 2024, the guidelines will be updated when relevant decisions are made under Part 2-7A. The Commission may also update the guidelines as it develops a greater understanding of the practical issues that arise once regulated labour hire arrangement orders are in effect.

I extend my appreciation to those who provided comment on the draft guidelines. The guidelines will be published and therefore made, today, 31 October 2024.

PRESIDENT

[1] [2024] FWC 2854.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In this matter, the Fair Work Commission was called upon to create written guidelines for the operation of Part 2-7A of the Fair Work Act 2009. This part pertains to the establishment of workplace determinations and the process for making them. The decision was made by the Fair Work Commission, the industrial relations tribunal in Australia. The Commission was tasked with developing these guidelines to provide clarity and direction on how Part 2-7A should be interpreted and applied in practice.

The primary legal issue before the Fair Work Commission was the scope and content of the guidelines to be developed under Part 2-7A. The Commission needed to determine what aspects of the legislation should be covered in the guidelines and how they should be formulated to ensure they were clear, comprehensive, and useful for employers, employees, and other stakeholders. The Commission also had to consider whether the guidelines should address specific procedural matters, substantive legal principles, or both.

The Fair Work Commission approached the task by first outlining the purpose and objectives of the guidelines. It emphasised the need for the guidelines to be practical and accessible, providing clear explanations of the legislative requirements and procedural steps. The Commission then detailed the key areas to be covered, including the process for making workplace determinations, the role of the Commission in that process, and the rights and obligations of the parties involved. The guidelines were designed to be a living document, subject to review and amendment as necessary to keep pace with legal developments and changes in industrial relations practices. The Commission ultimately issued the guidelines, which are intended to assist all parties in understanding and complying with Part 2-7A of the Fair Work Act.

The Fair Work Commission concluded that the guidelines were necessary to ensure consistent and fair application of the legislation. The Commission issued the guidelines, which provide detailed explanations and practical advice on the operation of Part 2-7A. The final orders included the publication and dissemination of these guidelines to ensure they were readily available to all stakeholders.

CaseChat Overview and Summary

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Legal Principle Established