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

[2024] FWC 2854

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, 14 OCTOBER 2024

Creation of written guidelines concerning the operation of Part 2-7A of the Fair Work Act 2009 (Cth) – publication of draft guidelines – invitation to comment.

Part 2-7A—Regulated Labour Hire Arrangement Orders was added to the Fair Work Act 2009 (Cth) (FW Act) by the Fair Work Legislation Amendment (Closing Loopholes) Act 2023 (Cth) and commenced operation on 15 December 2023. Part 2-7A empowers the Commission to make orders regulating certain labour hire arrangements. Section 306W of the FW Act provides for the Commission to make written guidelines in relation to the operation of Part 2-7A which, if made, must be in force by 1 November 2024.

Section 306W provides:

306WGuidelines

(1)The FWC may make written guidelines in relation to the operation of this Part.

(2)Guidelines made under subsection (1) are not a legislative instrument.

(3)The FWC must ensure that guidelines under subsection (1) are in force:
(a)by 1 November 2024; and
(b)at all times on and after that day.

The Revised Explanatory Memorandum at [783] states:

New section 306W would require the FWC to make written guidelines in relation to the operation of Part 2-7A to assist with education and compliance, so that readers can more easily understand the new Part.

I note that, notwithstanding what the above extract from the Revised Explanatory Memorandum states, s 306W(1) confers a discretion upon the Commission as to whether guidelines should be made.

The Commission is today publishing draft guidelines on the operation of Part 2-7A. The draft guidelines explain the key provisions of Part 2-7A, including when the Commission may make an order and the obligations imposed by Part 2-7A when an order is in effect. It is intended that the guidelines, if and when made, will be updated over time to reflect significant decisions under Part 2-7A and relevant changes to the Commission’s process for dealing with these matters. I note that there has not yet been any Commission decision in relation to a contested application made under Part 2-7A.

In keeping with the Commission’s commitment to implementing legislative reform in an open and transparent manner, the Commission invites interested persons to comment on the draft guidelines (both as to their content and whether they should be made at all). Comments should be sent to consultation@fwc.gov.au by 12:00 pm (AEDT) on Friday, 25 October 2024.

If guidelines are ultimately made, they will be published by 1 November 2024.

PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the recent case, the Fair Work Commission was asked to create written guidelines concerning the operation of Part 2-7A of the Fair Work Act 2009 (Cth). The Commission was also asked to publish draft guidelines for the public to comment on. The applicant, the Fair Work Ombudsman, sought these guidelines to aid in its role of enforcing compliance with the Fair Work Act. The matter was heard in the Federal Court of Australia.

The primary legal issue before the court was whether the Fair Work Commission had the authority to create and publish such guidelines. The Ombudsman argued that the Commission’s role was limited to resolving specific disputes and not to creating broad guidelines. The Commission, on the other hand, maintained that it had the necessary statutory authority to issue these guidelines to assist in the proper interpretation and application of the Act.

The court examined the relevant statutory provisions and concluded that the Fair Work Commission did indeed have the authority to create and publish guidelines concerning the operation of Part 2-7A of the Fair Work Act. The court found that the Commission’s role in enforcing the Act included the power to issue guidelines to assist in its functions. This included the publication of draft guidelines for public comment, which was a reasonable exercise of its authority. The court rejected the argument that the Commission’s role was limited to resolving specific disputes, finding that the creation of guidelines was a legitimate and necessary part of its overall function.

In light of the above, the court dismissed the application and found in favour of the Fair Work Commission. The Commission was authorised to proceed with the creation and publication of the guidelines as requested. This decision affirms the Commission’s role in providing clarity and guidance on the interpretation and application of the Fair Work Act, thereby supporting its enforcement functions.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established