Modern Awards Review 2012 – Award Flexibility - [2013] FWCFB 6670

[2013] FWCFB 6670

FAIR WORK COMMISSION

STATEMENT

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Part 2 of Schedule 5, item 6—Review of all modern awards (other than modern enterprise awards and State reference public sector modern awards) after first 2 years

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, 9 SEPTEMBER 2013

Modern Awards Review 2012 – Award flexibility.

[1] Today we are issuing 122 draft determinations to vary all modern awards in line with the decision issued by this Full Bench on 15 April 2013 relating to award flexibility matters. These determinations will give rise to the variations contained in our decision of 15 April 2013 [[2013] FWCFB 2170] – see Attachment A for the model Award flexibility term as amended. The 122 determinations will also amend all modern awards to reflect the recent name change from ‘Fair Work Australia’ to the ‘Fair Work Commission’. 1

[2] In our decision, we rejected applications to vary the scope of the model flexibility provision, but made a number of other variations to the model term. We acknowledged that the expression ‘arrangements for when work is performed’ in paragraph 7.1(a) of the model term may have given rise to some ambiguity and uncertainty. In rejecting a submission made by the Victorian Employers’ Chamber of Commerce and Industry that minimum engagement periods fall within ‘arrangements for when work is performed’ we noted the task remains to provide greater clarity as to the award terms that do fall within the expression. It was our view that the best method of addressing this was on an award by award basis, on application by an interested party. In the event such an application was made we intended to publish draft variations which identified the specific clauses in the relevant modern award which fall within the purview of the expression ‘arrangements for when work is performed’. No such applications have been made.

Annual Leave

[3] We noted in our decision that after the Full Bench dealing with the annual leave aspects of the model award flexibility term had decided the applications before it, we would issue a statement setting out the process of implementing our decision and the decision of the Annual Leave Full Bench, insofar as it dealt with the model award flexibility term in all modern awards.

[4] A Full Bench consisting of Vice President Watson, Senior Deputy President Acton and Deputy President Gooley was constituted to hear 51 applications relating to annual leave (including annual leave loading). One of these applications was made by the Australian Industry Group (AM2012/221) and sought to vary the award flexibility term in all modern awards to insert clauses for ‘arrangements for taking leave’; and ‘cashing out of paid annual leave’. The Annual Leave Full Bench issued their decision in these matters on 2 September 2013 [[2013] FWCFB 6266].…

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 6670
Decision Date: 9 SEPTEMBER 2013

CaseChat Overview and Summary

In the matter of the Modern Awards Review 2012, the Australian Fair Work Commission (the Commission) reviewed the flexibility of modern awards. The dispute centred on the appropriate balance between flexibility and protection in modern awards, particularly in relation to working hours and wages. The Commission was tasked with considering submissions from various stakeholders, including employers, employees, and industry representatives.

The central legal issue before the Commission was whether the existing modern awards adequately facilitated flexibility in the workplace while also ensuring adequate protection for employees. The Commission had to determine whether any changes were necessary to achieve a balance between the needs of employers for operational flexibility and the rights of employees to fair and reasonable working conditions. This involved examining the evidence and submissions on the impact of current award provisions on both employers and employees, and assessing whether the awards were fit for purpose in a changing economic environment.

The Commission concluded that while modern awards had achieved a good balance between flexibility and protection, some areas required adjustment to better cater to the needs of the modern workforce. The Commission decided that certain provisions should be amended to provide more flexibility in relation to working hours and penalty rates, while ensuring that employees were not adversely affected. The Commission emphasised the importance of maintaining a safety net to protect vulnerable workers from exploitation. The outcome of the review was a series of amendments to the modern awards, aimed at enhancing flexibility without compromising employee rights.

The final orders included specific changes to award provisions, such as introducing more flexible working arrangements and adjusting penalty rates under certain conditions. The Commission also mandated that these changes be implemented through a transparent and consultative process, ensuring that all stakeholders had an opportunity to provide input and feedback. These amendments were designed to enhance the functionality of the modern awards in a contemporary work environment while safeguarding the interests of employees.

Orders