Modern Awards Review 2012—Award Flexibility - [2013] FWCFB 8859

[2013] FWCFB 8859

FAIR WORK COMMISSION

DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch. 5, Item 6 - Modern awards review

Modern Awards Review 2012—Award Flexibility
(AM2012/8, AM2012/51, AM2012/172, AM2012/177, AM2012/178, AM2012/179, AM2012/180, AM2012/199, AM2012/204, AM2012/210, AM2012/228, AM2012/240, AM2012/245, AM2012/250, AM2012/287)

JUSTICE ROSS, PRESIDENT
SENIOR DEPUTY PRESIDENT WATSON
COMMISSIONER GREGORY

MELBOURNE, 12 NOVEMBER 2013

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 - Transitional Review - model award flexibility term - settlement of variation determinations arising from the decision in [2013] FWCFB 2170 - whether the variations apply to IFAs made before the commencement of the new flexibility term.

1. Introduction and Background

[1] In a decision issued on 15 April 2013 ([2013] FWCFB 2170) we dealt with
15 applications to vary the standard award flexibility provision in 10 modern awards. Those applications were made in the context of the review of all modern awards required by the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009. We rejected applications to vary the scope of the model flexibility term but made a number of other variations to the model term. In particular we determined that the model flexibility clause would be varied in the following respects:

insert the words ‘at the time the agreement is made’ into clause 7.3(b)

delete ‘four weeks’ from clause 7.8(a) and insert ‘13 weeks’

insert a note at the end of clause 7.8:

Note: If any of the requirements of s.144(4), which are reflected in the requirements of this clause, are not met then the agreement may be terminated by either the employee or the employer, giving written notice of not more than 28 days (see s.145 of the Fair Work Act 2009 (Cth)).

[2] In addition to these variations one further variation was adopted in order to improve the level of compliance with the requirements of the model flexibility term. The evidence suggested that a significant proportion of IFAs were entered into before the individual employee has commenced employment, contrary to the intent of the model flexibility term and the Act. To address that issue we decided to insert the following words in the model flexibility term:

‘An agreement under this clause can only be entered into after the individual employee has commenced employment with the employer.’

[3] The most significant change to the model flexibility clause determined in our 15 April 2013 decision was to vary the period of notice required to unilaterally terminate an individual flexibility agreement (an ‘IFA’). The model clause previously provided,:

“7.8 The agreement may be terminated:

(a) by the employer or the individual employee giving four weeks notice of termination in writing, to the other party and the agreement ceasing to operate at the end of the notice period; or

(b) at any time, by written agreement between the employer and the individual employee.”

[4] In our 15 April 2013 decision we decided to vary paragraph 7.8(a) of the model clause by increasing the period of notice required for unilateral termination, from…

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: [2013] FWCFB 8859
Decision Date: 12 NOVEMBER 2013

CaseChat Overview and Summary

In the matter of Modern Awards Review 2012, the Fair Work Commission was tasked with resolving the dispute regarding the application of a transitional model award flexibility term as provided for in the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009. The dispute centred on whether variations in individual flexibility agreements (IFAs) should apply to those agreements made prior to the commencement of the new flexibility term. The case was heard by the Fair Work Commission.

The key legal issues before the Court were the interpretation and application of the transitional model award flexibility term in the context of IFAs. Specifically, the Court needed to determine whether the variations arising from a prior decision applied to IFAs made before the new flexibility term came into effect. This required a careful examination of the statutory language and the legislative intent behind the transitional provisions.

The Fair Work Commission examined the legislative framework and found that the new flexibility term was intended to apply prospectively. The Court concluded that the variations should not apply to IFAs made before the new term commenced, as the legislation did not explicitly state that the changes should have retrospective effect. The Commission thus ruled in favour of the employees, ensuring that the variations did not impact IFAs that predated the new flexibility term.

The Fair Work Commission ordered that the variations arising from the decision in [2013] FWCFB 2170 would not apply to any IFAs made before the commencement of the new flexibility term. This ruling provided clarity for employers and employees regarding the application of the transitional provisions, ensuring that the changes were applied in a manner consistent with the legislative intent.

Orders