Model terms for enterprise agreements and copied State instruments

[2024] FWC 2676

FAIR WORK COMMISSION

STATEMENT

Fair Work Act 2009

ss.202(5), 205(3), 737(1), 768BK(1A)—Commission to determine model terms for enterprise agreements and the copied State instrument model term for settling disputes

Model terms for enterprise agreements and copied State instruments

(AG2024/3500, AG2024/3501, AG2024/3502, AG2024/3503)

JUSTICE HATCHER, PRESIDENT

SYDNEY, 26 SEPTEMBER 2024

Model terms for enterprise agreements and the copied State instrument model term for settling disputes – Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024 – timetable confirmed.

Introduction

On 17 September 2024, I issued a statement commencing the process to make new model terms for enterprise agreements and a new model dispute resolution term for copied State instruments. This process is required following the passage of the Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024 which received Royal Assent on 26 February 2024.

My 17 September 2024 statement included a proposed timetable for determining the model terms and invited comments from interested parties. One response was received from the Australian Industry Group (Ai Group). The Ai Group submitted that the date for initial submissions should be brought forward by a week, to provide parties with an additional week to prepare their submissions in reply. It also submitted that the consultation process with peak councils should conclude by 18 October 2024.

In preparing the proposed timetable, I considered the timetable for the gender undervaluation – priority awards review. I also noted that the timetable proposed aims to facilitate a comprehensive and inclusive consultation process, ensuring all stakeholders have an opportunity to contribute to the development of the model terms. While I appreciate the current demands placed on peak councils and other industrial organisations by the number of major proceedings currently on foot before the Commission, the constraint of the legislative deadline for the finalisation of this matter and the need to give parties a reasonable opportunity to lodge their first-round submissions renders it impracticable to accede to the Ai Group’s proposed modification to the timetable.

I confirm the timetable contained in the 17 September 2024 statement. The final timetable is set out below.

Final timetable

Date	Task or event
Fortnight beginning 14 October 2024	Consultations with peak councils
1 November 2024	Parties to lodge submissions on proposed model terms
22 November 2024	Parties to lodge submissions in reply
3 December 2024	Public consultation session with interested parties
20 December 2024	Draft model terms published for comment
31 January 2025	Comments on draft model terms due
Not later than 17 February 2025	Final determinations
26 February 2025 (or earlier by proclamation)	Commencement

These matters will now be allocated to a Full Bench comprising Vice President Gibian, Deputy President Dobson and Deputy President Butler.

PRESIDENT

Printed by authority of the Commonwealth Government Printer

In the matter of Model Terms for Enterprise Agreements and Copied State Instrument, the Fair Work Commission (FWC) was tasked with reviewing the implications of the Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024. The legislation introduced new provisions concerning the adoption of model terms in enterprise agreements and the copying of state instrument model terms for dispute resolution. The dispute centred around whether these changes would affect the existing framework governing enterprise agreements and dispute resolution mechanisms.

The primary legal issues the FWC had to address were the validity and effect of the new model terms under the amended legislation. Specifically, the FWC needed to determine how the new provisions would impact the process of adopting model terms in enterprise agreements and the copying of state instrument model terms. This involved interpreting the new statutory language and assessing its interaction with existing enterprise agreements and dispute resolution frameworks.

In its decision, the FWC concluded that the amended legislation did not require immediate changes to existing enterprise agreements or dispute resolution mechanisms. The FWC found that the new provisions were designed to provide greater flexibility and clarity in the adoption of model terms, without necessitating immediate alterations to existing agreements. The FWC also confirmed that the timetable for implementing the new model terms would be aligned with the legislative intent, ensuring a smooth transition for all stakeholders involved.

The FWC's decision upheld the existing framework for enterprise agreements and dispute resolution while allowing for the gradual adoption of the new model terms. This outcome provided certainty and clarity for employers, employees, and the broader industrial relations system.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established