Modern Awards Review 2012—Penalty rates and Public Holidays

[2012] FWA 9522

[2012] FWA 9522

FAIR WORK AUSTRALIA

STATEMENT AND DIRECTIONS

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—Penalty rates and Public Holidays
(AM2012/8 and others)

JUSTICE ROSS, PRESIDENT MELBOURNE, 9 NOVEMBER 2012

[1] Further to earlier statements and directions issued by Fair Work Australia in relation to the review of modern awards (the Review), this statement provides a summary of progress to date and further details regarding the proceedings in relation to penalty rates and public holidays.

[2] The Statement issued on 27 April 2012 [[2012] FWA 3514] outlined a number of “common issues” raised in applications to vary modern awards as part of the Review to be dealt with by one or more Full Benches. Amongst those issues identified was the penalty rates aspects of applications in the retail, hospitality, fast food, restaurant, hair and beauty awards 1 as listed below:

• Fast Food Industry Award 2010 – AM2012/59, AM2012/179, AM2012/218, AM2012/240 and AM2012/253 (Jones C)



• General Retail Industry Award 2010 – AM2012/8, AM2012/37, AM2012/71 AM2012/177, AM2012/196, AM2012/239, AM2012/245, AM2012/250, AM2012/252 and AM2012/266 AND Food, Beverage and Tobacco Manufacturing Award 2010 – AM2012/178 (Hampton C)



• Hair and Beauty Industry Award 2010 – AM2012/172 and AM2012/200 (Jones C)



• Hospitality Industry (General) Award 2010 – AM2012/101, AM2012/204, AM2012/211 and AM2012/215 (Gooley C)



• Restaurant Industry Award 2010 – AM2012/180, AM2012/186 and AM2012/213 (Gay C)

Restaurant Industry Award 2010

[3] Following requests from Australian Business Industrial (ABI) and the Restaurant and Catering Association of Victoria (RCAV) it was decided that all aspects of the applications to vary the Restaurant Industry Award 2010 including any penalty rates issues, will be dealt with by a single Member, Commissioner Gay. The Commissioner held a Directions hearing on 31 July 2012 and issued Directions by Consent on 23 August 2012 outlining the timetable for dealing with all applications to vary this award (except those in relation to Award Flexibility which will be dealt with by a separate Full Bench during Stage 3).

Timetable

[4] A detailed Timetable was issued on 5 July 2012. The Timetable sets out a four stage process continuing into 2013. The Full Bench proceedings dealing with penalty rates in the retail, hospitality, fast food, restaurant, hair and beauty awards (AM2012/8 and others) have been listed to be dealt with during Stage 1—1 July to 31 October 2012 2.

Directions in relation to the retail, hospitality, fast food, hair and beauty awards

[5] In a Directions hearing on 9 May 2012, a number of parties raised a concern that the approach of having a number of different Full Benches and/or single Members dealing with various aspects of the same application may require applicants to call witnesses back for separate hearings in relation to the same application. To address this issue, Commissioner Hampton held a Conference of interested parties on 21 June 2012. Following this Conference the Commissioner issued a Report on 4 July 2012 which recommended that to address the concerns of employer and union representatives:

• the Tribunal would hear evidence in relation to applications concerning both the penalty rates and public holiday matters through the same process, including if appropriate, through common witnesses;



• the applications before the Penalty Rates Full Bench should be grouped, based primarily upon each modern award, and delegated to one or more single Members to hear the evidence and make a report to both Full Benches upon which the applications will be determined.

[6] Directions in accordance with the above recommendations were issued on 9 July 2012, with Amended and consolidated directions issued on 19 September 2012. The Tribunal Members who are to deal with the nominated awards are listed at paragraph 2 of this statement.

[7] A further Directions Hearing was held on 18 October 2012 before Commissioners Gooley, Hampton and Jones in relation to both the penalty rates and public holidays 3 issues in the retail, hospitality, fast food, and hair and beauty awards.

[8] Directions were issued by Commissioner Hampton on 22 October 2012, Commissioner Jones on 22 October 2012 and 23 October 2012 and Commissioner Gooley on 24 October 2012, 26 October 2012 and 1 November 2012. Proceedings to hear evidence will be conducted at times established by the individual Members concerned.

Penalty Rates and Public Holidays: Full Bench Hearings - Directions

[9] Reports from the single members in relation to the penalty rates and public holidays issues are due to be provided to the Full Bench by 7 December 2012. Parties are directed to file a written submission addressing any issues regarding the Reports on the evidence by 14 December 2012. The penalty rate and public holiday matters will be listed for short oral argument on 18 and 19 December 2012.

PRESIDENT

 1   The Statement issued on 27 April 2012 also included “Banking” awards in this Full Bench matter. The Banking awards were removed from this process after correspondence on behalf of the applicants in AM2012/256 amending their application was lodged on 7 May 2012 (see Transcript of 9 May 2012 PN 25–26).

 2   See Timetable issued on 5 July 2012 [2012] FWA 5721

 3   For convenience it has been decided that parties may provide evidence in relation to both the penalty rates and public holidays aspects of these applications simultaneously however the material will be provided to a separate Full bench that has been constituted to deal with the public holidays applications (AM2012/134 and others)

Printed by authority of the Commonwealth Government Printer

<Price code A, PR531142>