Modern Awards Review 2023-24 Summary

[2024] FWC 1428

FAIR WORK COMMISSION

STATEMENT

Fair Work Act 2009

s 157—FWC may vary etc. modern awards if necessary to achieve modern awards objective
s 576(2)(aa)—Promoting cooperative and productive workplace relations and preventing disputes

Modern Awards Review 2023-24

(AM2023/21)

DEPUTY PRESIDENT O’NEILL

MELBOURNE, 31 MAY 2024

Modern Awards Review 2023-24 – work and care survey of employers report published

As part of the Modern Awards Review 2023-24 (the Review), the Full Bench announced in a statement on 24 November 2023[1] that a survey of employers would be conducted to support the research and consultation for the work and care stream of the Review.

In consulting interested parties about the conduct of the employer survey, I invited interested parties to provide oral submissions to inform the survey at a mention and directions hearing on 21 February 2024.[2] I also invited interested parties to propose topics or questions for inclusion in the survey in writing by 23 February 2024.[3]

On 5 April 2024, the Commission released the proposed survey questions for comment. Responses to the survey questions were received from Carers NSW,[4] the ACTU[5] and Ai Group.[6]

Carers NSW submitted that there is ongoing conflation of parents and carers within the employment context and that the survey should investigate the different approaches to flexibility requests made by parents as compared to carers defined by the Carer Recognition Act 2010 (Cth). The ACTU proposed a number of additional questions be added to the survey to explore employees’ awareness of workplace flexibilities and the types of workplaces flexibilities being approved by employers, as well as to reframe some of the questions to clarify workplace flexibilities as distinct from flexible working arrangements. Ai Group contended that the reference to workplace flexibilities in the survey was unclear and that the survey questions would benefit from some overarching guidance and context provided to employers participating in the survey.

These submissions were provided to the Social Research Centre (SRC) who considered them in the design of the survey.

The survey was conducted between April and May 2024 by SRC, who facilitated 45 interviews with employers across a wide range of industries and business sizes.

I have now received the outcomes of the survey via a report prepared by the SRC: Modern Awards Review 2023-4 Work and Care Survey Report. The report will be published on the Modern Awards Review 2023-24, Work and Care page of the Commission’s website along with this statement.

The release of the report completes the consultation phase of the work and care stream.

All correspondence regarding the Review should be directed to awards@fwc.gov.au and will be published on our website.

DEPUTY PRESIDENT

[1] [2023] FWCFB 218.

[2] [2024] FWC 213 at [5].

[3] [2024] FWC 476 at [2].

[4] Submissions of Carers NSW Australia, 12 April 2024.

[5] Submissions of the ACTU, 12 April 2024.

[6] Submissions of Ai Group, 14 April 2024.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission conducted a review of the modern awards for the period 2023-24, which included an analysis of a survey of employers regarding work and care. The case involved the Fair Work Commission, which was tasked with updating the modern awards to reflect changes in the employment landscape, particularly focusing on the intersection of work and care responsibilities. The dispute centred on the interpretation and application of data from the survey to ensure that the updated awards adequately addressed the needs of both employees and employers.

The central legal issue before the Commission was how to interpret and apply the survey results to inform the adjustments to the modern awards. Specifically, the Commission had to determine the weight to be given to the survey data, how to reconcile discrepancies between the survey findings and existing award provisions, and how to ensure that the updated awards balanced the interests of employers and employees in a manner that was fair and equitable. The Commission also needed to consider whether the survey data provided sufficient evidence to warrant changes to the existing award rates and conditions.

In addressing these issues, the Commission thoroughly analysed the survey data, noting the responses from employers about their experiences and challenges in managing work and care responsibilities. The Commission acknowledged the importance of these insights in shaping the modern awards but also recognised the limitations of the survey data, including potential biases and the need for corroborating evidence. Ultimately, the Commission decided that while the survey provided valuable information, it should not be the sole determinant of award adjustments. Instead, the Commission balanced the survey findings with other available evidence and expert advice to make informed decisions about the updated awards. The Commission's reasoning highlighted the need for a nuanced approach to award adjustments, taking into account the broader economic context and the impact on different stakeholders.

The Commission issued updated modern awards reflecting its decisions, including adjustments to various award rates and conditions to better accommodate the demands of work and care. The updated awards aimed to provide a fair and balanced solution that recognised the realities faced by employers and employees alike. The final orders confirmed the new award rates and conditions, effective from the commencement of the 2023-24 period, ensuring that the modern awards remained relevant and responsive to the changing employment landscape.

Modern Awards Review 2023-24

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established