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Restaurant & Catering Industrial

Case [2021] FWCFB 4149 14 July 2021

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[2021] FWCFB 4149

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.157–Application to vary or revoke a modern award

Restaurant & Catering Industrial
(AM2021/58)

Restaurants
JUSTICE ROSS, PRESIDENT DEPUTY PRESIDENT CLANCY COMMISSIONER BISSETT	MELBOURNE, 14 JULY 2021

Restaurant Industry Award 2020 – application to vary a modern award – award flexibility – exemption rate – simplified classification structure – substitute allowance – provisional views confirmed – draft determinations issued.

1. Background

[1] This decision concerns an application by Restaurant and Catering Industrial (RCI) (the Application) to vary the Restaurant Industry Award 2020 (the Restaurant Award). The background to the Application is set out in a Statement published on 3 June 2021.

[2] For present purposes, we need only note that the Application arose out of a process which was initiated by correspondence from the Minister for Industrial Relations in which the Minister expressed the Government’s view that ‘… in the extraordinary circumstances that have been caused by the COVID pandemic … it would be in Australia’s economic best interest for the Fair Work Commission to use its powers under s.157(3)(a) … to undertake a process to ensure several priority modern awards in sectors hardest hit by the pandemic be amended.’ 1 The Restaurant Award was among the awards identified by the Minister as priority awards.

[3] The Application seeks to vary the Restaurant Award by including 2 new schedules, Schedule R and Schedule AA, in order to assist employers and employees recover from the COVID-19 pandemic. Proposed Schedule R includes:

• access to a simplified classification structure (which is set out in Schedule AA)

• a ‘substitute’ allowance in substitution for certain work and expense related allowances, and

• exemption rates.

[4] The proposed Schedule R incorporates a number of safeguards, which we set out later.

[5] Following a number of private conferences, an amended draft determination was filed on 31 May 2021. RCI also filed a submission in support of the Application and a number of witness statements.

[6] On 3 June 2021 we issued a Statement 2 (June Statement) setting out our provisional view that the Restaurant Award be varied in the terms set out in the draft determination at Attachment A to that Statement. Interested parties were directed to file submissions and evidence in response to our provisional view.

[7] In accordance with the directions, we received the following:

• correspondence from NSW Business Chamber and Australian Business Industrial

• Submission from the United Workers Union (UWU), attaching the witness statement of Ms Angela Knox, and

• Submission in reply from RCI.

[8] In its correspondence, NSW Business Chamber and Australian Business Industrial confirmed that it endorsed the proposal to vary the Restaurant Award as set out in Attachment A to the June Statement.

[9] In a Statement 3 issued on 5 July 2021 (July Statement), we informed the parties that updated information notes regarding the COVID-19 situation had been published, and that an updated note regarding the Accommodation and food services industries would be published…

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.

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Details

AGLC: Restaurant & Catering Industrial [2021] FWCFB 4149
Case: [2021] FWCFB 4149
Decision Date: 14 JULY 2021

CaseChat Overview and Summary

In the recent matter before the Fair Work Commission, the Restaurant and Catering Industrial Award 2020 was the subject of an application to vary by the Restaurant and Catering Industry Group. The dispute centred around the award's flexibility provisions, the exemption rate, the simplified classification structure, and the substitute allowance. The Fair Work Commission was tasked with examining these aspects to determine if the proposed changes to the award would be in the interests of fairness and equity.

The central legal issues that the Commission had to resolve included whether the proposed changes to the award's flexibility provisions would appropriately balance the needs of employers and employees, whether the exemption rate was reasonable and justifiable, and whether the simplified classification structure would effectively streamline the award without undermining its protective intent. Additionally, the Commission needed to determine the appropriateness of the substitute allowance proposed in the draft determinations.

After thorough consideration, the Fair Work Commission confirmed its provisional views on the application to vary the award. The Commission found that the proposed changes to the award's flexibility provisions were necessary to accommodate the evolving nature of the industry while ensuring fairness for all parties. The exemption rate was deemed appropriate, balancing the need for flexibility with the protection of employees' rights. The simplified classification structure was also approved, as it was found to be effective in reducing complexity without compromising the award's protective function. The substitute allowance was confirmed as a suitable measure to address specific industry needs. Draft determinations were issued to reflect these decisions.

The Fair Work Commission's final orders will be implemented to vary the Restaurant and Catering Industrial Award 2020 in accordance with the approved changes. These orders will come into effect on a specified date, providing clarity and updated guidelines for both employers and employees within the industry.

Orders