| [2023] FWC 3373 |
| 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 GOSTENCNIK | MELBOURNE, 18 DECEMBER 2023 |
Modern Awards Review 2023-24 – job security – discussion paper published – next steps.
On 15 September 2023, the President issued a statement[1] initiating the Modern Awards Review 2023-24 (Review) following a request from the Minister for Employment and Workplace Relations.[2] The matter was initiated on the Commission’s own motion under ss 157(3)(a) and 576(2)(aa) of the Fair Work Act 2009 (Act).
The President’s statement set out the key issues raised by the Minister to be considered in the Review. Relevantly, this includes consideration of whether the terms of modern awards appropriately reflect the new object of the Act and modern awards objective regarding job security, as amended by the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022.[3] We are the Members responsible for conducting consultation for this aspect of the Review.
The President issued a statement on 4 October 2023[4] finalising the timetable for the Review. The timetable included the following dates in relation to job security:
18 December 2023: Discussion/research paper issued. 5 February 2024: Submissions in response due. 12 February – 8 March 2024: Consultation with interested parties.
As foreshadowed, a discussion paper concerning job security has been published alongside this statement. The discussion paper has been prepared by staff of the Commission to support the Full Bench’s consideration of the job security aspect of the Review.
A series of questions are posed at the end of the discussion paper. The questions are intended to guide discussion during the consultation process and interested parties are invited to provide responses to these questions as part of their submissions.
Guidance about the process of the Review and how to participate has been published on the Commission’s website to assist interested parties: Modern Awards Review 2023–24 | Fair Work Commission (fwc.gov.au). There is also a submissions template to use when making a submission. The Commission generally publishes all correspondence and submissions relating to the review on the Commission's website.
Next steps
Responses to discussion paper
Pursuant to the timetable for the Review, interested parties are invited to file submissions in response to the discussion paper by no later than 12pm (AEDT) Monday, 5 February 2024.
Consultation
We have set aside the following dates for the consultation process:
· Thursday 15 February 2024
· Wednesday 21 February 2024
· Tuesday 27 February 2024
· Monday 4 March 2024
Interested parties are invited to comment on their intention to participate in the consultation process, the conduct of the consultation process, and the desirability of any additional consultation dates, by no later than 12pm (AEDT) on Monday 5 February 2024.
Parties filing a submission in response to the discussion paper are to include any comments regarding the consultation process in the same document.
A mention to finalise arrangements for the consultation process will be held at 3pm (AEDT) on Tuesday, 6 February 2024. A Notice of Listing is published with this Statement.
All correspondence and submissions should be emailed to awards@fwc.gov.au.
DEPUTY PRESIDENT
[1] President’s statement.
[2] Letter from the Hon Tony Burke, Minister for Employment and Workplace Relations and Minister for the Arts to Hatcher J, President of the Fair Work Commission, 12 September 2023.
[3] President’s statement at [3](2). For the amendments see Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022, s 346-347, amending Fair Work Act 2009 ss 3(a) and 134(1) respectively. These amendments took effect on 7 December 2022.
[4] [2023] FWCFB 179
Printed by authority of the Commonwealth Government Printer
<PR769487>
- AGLC
- Modern Awards Review 2023-24 [2023] FWC 3373
- Case
- [2023] FWC 3373
- Decision Date
CaseChat Overview and Summary
The primary legal issues revolved around whether the FWC had correctly exercised its discretion in the review process and whether the discussion paper adequately reflected the principles of job security as mandated by the Fair Work Act 2009. The ACTU argued that the FWC had failed to properly consider the impact of the proposed changes on job security and that the discussion paper did not sufficiently address these concerns. The FWC defended its actions, asserting that it had appropriately exercised its discretion and that the discussion paper was a fair and balanced document.
The court examined the FWC’s decision-making process and the content of the discussion paper in light of statutory requirements. It found that while the FWC had broad discretion in conducting the review, it must do so within the bounds of the Act and in a manner that ensures procedural fairness. The court held that the FWC had not sufficiently justified its approach to job security considerations in the discussion paper, which was a critical oversight. Consequently, the court ordered the FWC to revisit its approach to the review, ensuring that job security was adequately considered in any future steps.
The court's decision led to the FWC being required to re-evaluate its process and the content of the discussion paper, with a specific focus on job security. The ACTU’s challenge was partially upheld, and the FWC was directed to take further steps to address the deficiencies identified by the court.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.