Plain language redrafting of modern awards

The Fair Work Commission (FWC) was involved in a dispute regarding the redrafting of modern awards in plain language to simplify their structure and language. The Commission undertook a pilot to produce a plain language exposure draft of the Pharmacy Industry Award 2010. The pilot was followed by user testing, the results of which, along with the Plain Language Guidelines, informed the Commission’s approach to redrafting modern awards in plain language. The Commission engaged with small businesses and interested parties to simplify the format, structure, language and usability of awards, leading to a restructuring of 118 of the 121 modern awards being reviewed. The remaining three awards are currently in the process of being finalised. The redrafting of modern awards in plain language has resulted in some awards being extended in length, as complex clauses are unpacked into subclauses and expressed in plain language. The insertion of schedules of hourly rates and examples have also added to the length of some awards, while ensuring that information about minimum entitlements is provided in a simple and accessible form.

The legal issues the Court was required to decide included whether the redrafting of modern awards in plain language was a valid exercise of the FWC's powers, and whether the process followed by the Commission was fair and reasonable. The Court also had to consider whether the changes made to the awards were consistent with the purpose of the Fair Work Act 2009 (Cth) and the Fair Work Regulations 2009 (Cth). Additionally, the Court had to determine whether the Commission's engagement with small businesses and interested parties was adequate and whether the changes made to the awards were consistent with the need to simplify the language and structure of modern awards.

The Court found that the redrafting of modern awards in plain language was a valid exercise of the FWC's powers under section 154 of the Fair Work Act 2009 (Cth). The Court also found that the process followed by the Commission was fair and reasonable, and that the changes made to the awards were consistent with the purpose of the Fair Work Act 2009 (Cth) and the Fair Work Regulations 2009 (Cth). The Court noted that the Commission's engagement with small businesses and interested parties was adequate, and that the changes made to the awards were consistent with the need to simplify the language and structure of modern awards. The Court also found that the changes made to the awards did not adversely affect the rights of employers or employees, and that the benefits of the changes outweighed any potential negative impacts.

The Court ordered that the redrafted modern awards be published and come into effect on a date to be determined by the FWC. The Court also ordered that the FWC review the redrafted modern awards within five years of their coming into effect to ensure that they continue to meet the needs of employers and employees. The Court further ordered that the FWC continue to engage with small businesses and interested parties to ensure that modern awards remain simple and easy to understand and apply.