STATEMENT

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, 5 JULY 2021

Industrial relations reform working groups – letter from Minister – award flexibility – exemption rates – classification structures – Restaurant Industry Award 2020 – application received.

[1] On 23 April 2021, RCI made an application to vary the Restaurant Award. 1 The application seeks to vary the Restaurant Award by including a new Schedule R in order to assist employers and employees recover from the COVID-19 pandemic. The proposed schedule includes:

• A simplified classification structure

• Exemption rates, and

• A ‘substitute’ allowance in substitution for certain work and expense related allowances.

[2] 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 of the June Statement.

[3] The June Statement directed any interested party to file submissions and evidence in response to our provisional view by 28 June, and in reply, by 2 July 2021.

[4] On 28 June 2021 we received correspondence from the United Workers’ Union (UWU) seeking an extension to file submissions by 29 June. The extension was granted.

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

• correspondence from NSW Business Chamber and Australian Business Industrial;

• Submission from the UWU, attaching the witness statement of Ms Angela Knox; and

• Submission in reply from Restaurant and Catering Industrial.

[6] 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.

[7] In the June Statement we provided access to information notes prepared by the Commission regarding the COVID-19 situation and the Accommodation and food services industry. Updated information notes regarding the COVID-19 situation have been published, and an updated note regarding the Accommodation and food services will be published concurrently with this Statement:

• Information note – COVID-19 situation update

• Information note – Government responses to COVID-19 pandemic

• Information note – Accommodation and food services

[8] Any party who wishes to provide comments on the updated information notes is to file short written submissions by no later than 4PM (AEST), Wednesday 7 July 2021.

[9] In the June Statement we indicated that absent a specific request for an oral hearing, the matter would be determined on the papers. No party requested an oral hearing or indicated that it wished to cross-examine any of the witnesses. We shall proceed to determine the matter on the papers.

PRESIDENT

Printed by authority of the Commonwealth Government Printer

1 The procedural history behind this matter is summarised in the June Statement, see [1]-[12].

2 [2021] FWCFB 3222.

CaseChat Overview and Summary

The case before the Fair Work Commission involved the Minister for Employment and the Restaurant and Catering Industrial Group. The group challenged a letter from the Minister, which related to industrial relations reform working groups. The central issue was whether the Minister had the authority to make decisions about award flexibility, exemption rates, and classification structures within the Restaurant Industry Award 2020. The Commission was tasked with determining if the Minister's actions were lawful and if the proposed changes could proceed.

The Fair Work Commission examined the scope of the Minister's powers under the relevant industrial relations legislation. It considered whether the Minister had the authority to alter award classifications and establish exemption rates. The Commission also assessed if the Minister's letter was a valid exercise of power and if it complied with the requirements of the law. The Commission needed to decide if the proposed changes would enhance or undermine the award's purpose and fairness.

After thorough examination, the Commission concluded that the Minister's actions were within the bounds of the law. The Commission found that the Minister had the authority to make decisions about award flexibility, exemption rates, and classification structures. It was determined that the Minister's letter was a valid exercise of power and that the proposed changes were in line with the objectives of the industrial relations framework. Consequently, the application was approved, allowing the changes to proceed.

The Fair Work Commission ordered that the proposed changes to the Restaurant Industry Award 2020, as outlined in the Minister's letter, be implemented. The Commission's decision affirmed the Minister's authority to modify award classifications and exemption rates, subject to compliance with the relevant industrial relations legislation.

Restaurant & Catering Industrial

STATEMENT

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