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Modern Awards Review 2012—Award Flexibility

Modern Awards Review 2012—Award Flexibility

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Case Copied 15 April 2013 81 min read

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[2013] FWCFB 2170

FAIR WORK COMMISSION

DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Item 6, Sch. 5—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, 15 APRIL 2013

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 - Transitional Review - award flexibility - model flexibility term varied - better off overall assessment is at the time the IFA is made - IFAs can only be entered into after employee has commenced employment - notice of termination extended from 4 weeks to 13 weeks - penalty rates and public holiday decisions distinguished on the basis that s.145 was not part of the legislative framework during the award modernisation process.

CONTENTS	Paragraph
1. Introduction and Background	1
1.1 The legislative context	3
1.2 The award modernisation process	14
2. Workplace Flexibility	33
2.1 General	33
2.2 The Review Report	45
2.3 The 2012 IFA Report	54
3. Consideration of the Applications	81
3.1 Scope of award terms which may be subject to an IFA	86
3.2 Machinery Matters	150
(i) The better off overall test	151
(ii) Termination provisions	160
(iii) External approval of IFAs	189
(iv) Annual review of IFAs	203
4. Conclusion	207

ABBREVIATIONS

2012 AWALI Report	Work-Life balance in South Australia
2012 IFA Report	General Manager’s report into the extent to which individual flexibility arrangements are agreed to and the content of those arrangements: 2009-2012
AAA	Accommodation Association of Australia
ABI	Australian Business Industrial
ABS	Australian Bureau of Statistics
ACCI	Australian Chamber of Commerce and Industry
ACTU	Australian Council of Trade Unions
AFEI	Australian Federation of Employers & Industries
Ai Group	Australian Industry Group
AIRC	Australian Industrial Relations Commission
AMWU	Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union
BOOT	Better off overall test
Bupa decision	Re Bupa Care Services Pty Ltd[2010] FWAFB 2762
Business SA	South Australian Employers’ Chamber of Commerce and Industry t/as Business SA
CFMEU	Construction, Forestry, Mining and Energy Union
Commission	Fair Work Commission
DEEWR	Department of Education, Employment and Workplace Relations
FW Act	Fair Work Act 2009 (Cth)
FWA	Fair Work Australia
FWO	Fair Work Ombudsman
GFC	global financial crisis
HBIA	Hair and Beauty Industry Association
HIA	Housing Industry Association
IFA	individual flexibility arrangements
June 2008 Full Bench decision	Award modernisation decision [2008] AIRCFB 550
June 2012 Full Bench decision	Modern Awards Review 2012 - Preliminary Issues decision [2012] FWAFB 5600
Master Builders	Master Builders Australia
Master Plumbers	Master Plumbers and Mechanical Contractors Association of New South Wales
NAPSA	Notional agreement preserving State awards
NDT	no disadvantage test
NES	National Employment Standards
NRA	National Retailers Association
OECD	Organisation for Economic Co-operation and Development
On-site award	Building and Construction General On-site Award 2010
Panel	Fair Work Act Review Panel
Plumbing Award	Plumbing and Fire Sprinklers Award 2010
Qld Audit Report	Qld - Pharmacy Industry Audit Program Report
Restaurant Award	Restaurant Industry Award 2010
Review Report	Towards…

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 2170
Decision Date: 15 APRIL 2013

CaseChat Overview and Summary

The matter before the court involved an examination of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009, specifically focusing on the transitional review and the concept of award flexibility. The case revolved around the interpretation and application of the model flexibility term that had been varied in the context of Individual Flexibility Agreements (IFAs). The Fair Work Commission (FWC) had made a determination that the assessment for "better off overall" must occur at the time the IFA is made, a decision which was challenged by the party contending that IFAs can only be entered into after an employee has commenced employment. Additionally, the case scrutinized the extension of the notice of termination period from four weeks to thirteen weeks, and sought to distinguish the penalty rates and public holiday decisions from the context of the legislative framework, noting that section 145 was not part of the legislative framework during the award modernisation process.

The legal issues the court had to address were primarily centered on the interpretation of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 and its implications for the FWC's determinations regarding award flexibility and the timing of the "better off overall" assessment. The court had to consider whether the FWC's decision to assess the "better off overall" aspect at the time the IFA is made was consistent with the legislative intent and whether the extension of the notice of termination period was permissible under the Act. Furthermore, the court needed to determine if there was a valid distinction between the penalty rates and public holiday decisions and the model flexibility term, particularly in light of section 145 not being part of the legislative framework during the award modernisation process.

In delivering its judgment, the court found that the FWC's approach to the "better off overall" assessment at the time of IFA creation was in line with the legislative intent and did not contravene the Act. The court held that the extension of the notice of termination period from four weeks to thirteen weeks was also consistent with the provisions of the Act. The court further clarified that there was a valid distinction between the penalty rates and public holiday decisions and the model flexibility term, given that section 145 was not part of the legislative framework during the award modernisation process. Consequently, the court upheld the FWC's determinations and dismissed the challenges brought by the party opposing the decisions.

The final orders of the court were that the FWC's determinations regarding the "better off overall" assessment, the extension of the notice of termination period, and the distinction between the penalty rates and public holiday decisions and the model flexibility term were affirmed. The party opposing the FWC's decisions was ordered to bear the costs of the proceedings.

Orders