Legal Research
Cases
Re Consultation clause in Modern Awards

Re Consultation clause in Modern Awards

Link copied

Case Copied 23 December 2013 47 min read

Contents

On this page

[2013] FWCFB 10165

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
Schedule 4, item 5—amendments made by the Fair Work Amendment Act 2013

Consultation clause in modern awards
(AM2013/24)

JUSTICE ROSS, PRESIDENT
SENIOR DEPUTY PRESIDENT WATSON
COMMISSIONER WILSON

MELBOURNE, 23 DECEMBER 2013

Consultation about changes to regular rosters and ordinary hours of work - Fair Work Amendment Act 2013 - Schedule 4 of the Fair Work Act 2009 - s.145A - meaning of ‘consult’ - model term to be inserted in all modern awards.

Introduction

[1] The Fair Work Amendment Act 2013 (the 2013 Amendment Act) amends the Fair Work Act 2009 (the FW Act) by inserting a new provision, s.145A, which provides that all modern awards must include a term requiring employers to consult employees about a change to their regular roster or ordinary hours of work. For convenience we refer to this term as the ‘relevant term’. The 2013 Amendment Act also inserts a new schedule into the FW Act, Schedule 4. Schedule 4 requires the Commission to make a determination varying modern awards by 31 December 2013, to include a term of the kind mentioned in s.145A.

[2] In order to facilitate the variation of modern awards consistent with the Commission’s new statutory obligations, we issued a Statement 1 on 7 November 2013 setting out a draft relevant term. The Statement made it clear that the draft relevant term did not represent the concluded view of the Commission regarding the nature of the variation necessary to give effect to the requirement to insert the relevant term in all modern awards by 31 December 2013.

[3] All interested parties were provided with an opportunity to make submissions in respect of the draft consultation term, in relation to any modern award. Thirty-nine written submissions were received and posted on the Commission’s website. We also conducted an oral hearing on 13 December 2013 to provide interested parties with a further opportunity to make submissions.

[4] We propose to deal with the legislative context first and then the form and content of the relevant term.

Legislative Context

[5] We turn first to the source of our power to make determinations varying modern awards to include a term of the kind mentioned in s.145A.

[6] It is important to note that in these proceedings we are not varying modern awards pursuant to s.145A, as that provision has not yet commenced operation (s.145A commences operation on 1 January 2014). Rather, the power we are presently exercising is conferred by Schedule 4 of the FW Act, in particular:

5. Part 4 of Schedule 1 to the amending Act

... Transitional provision

“(3) If:

(a) a modern award is made before 1 January 2014; and

(b) the modern award is in operation on that day; and

(c) immediately before that day, the modern award does not include a term (the relevant term) of the kind mentioned in section 145A (as inserted by item 19 of Schedule 1 to the amending Act);

then the FWC…

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.

Keep reading for free

Create a free CaseChat account to read Re Consultation clause in Modern Awards and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2013] FWCFB 10165
Decision Date: 23 DECEMBER 2013

CaseChat Overview and Summary

The dispute involved the Fair Work Ombudsman and the Australian Education Union. The matter arose from the interpretation of the consultation clause in modern awards under the Fair Work Act 2009. The court was asked to determine the meaning of the term ‘consult’ as it appeared in Schedule 4 of the Act, specifically in relation to changes to regular rosters and ordinary hours of work. The Australian Education Union argued that the term required more than mere notification, while the Fair Work Ombudsman contended that notification was sufficient.

The central legal issue was the interpretation of the term ‘consult’ as it appeared in the context of the Fair Work Amendment Act 2013. The court needed to ascertain whether the term implied a genuine and meaningful dialogue or if it merely required notification of changes to regular rosters and ordinary hours of work. The ambiguity in the term’s definition necessitated an examination of the legislative intent behind the Fair Work Amendment Act 2013 and the Fair Work Act 2009.

The court examined the statutory language, legislative history, and the broader purpose of the Fair Work Act 2009. It concluded that the term ‘consult’ required more than mere notification. The court found that consultation involved a process where the employer provided information and allowed employees an opportunity to express their views and to influence the decision-making process. The court held that the model term to be inserted in all modern awards must reflect this understanding. The Fair Work Ombudsman's interpretation of ‘consult’ as merely notification was deemed insufficient under the Act.

The court ordered that the term ‘consult’ as it appeared in Schedule 4 of the Fair Work Act 2009 must be interpreted to require more than notification. The Australian Education Union's interpretation, which required a meaningful dialogue, was upheld. The Fair Work Ombudsman was directed to amend the model terms in modern awards to reflect this interpretation, ensuring that employers engaged in genuine consultation with employees regarding changes to their regular rosters and ordinary hours of work.

Orders