DECISION

Fair Work Act 2009
s.156 - 4 yearly review of modern awards

Restaurant Industry Award 2010
(AM2017/42)

VICE PRESIDENT HATCHER
VICE PRESIDENT CATANZARITI
COMMISSIONER LEE

SYDNEY, 24 NOVEMBER 2017

Application by Restaurant and Catering Industrial.

[1] The Fair Work Commission is currently conducting a four yearly review of modern awards in accordance with s 156 of the Fair Work Act 2009 (FW Act). In the course of the review, a number of employer bodies have made applications to vary penalty rate provisions in a number of modern awards. These included an application made by Restaurant and Catering Industrial (RCI) to reduce penalty rates, including Sunday penalty rates, in the Restaurant Industry Award 2010 (Restaurants Award). This and the other penalty rate applications were assigned to a specially-constituted five member Full Bench for hearing and determination.

[2] After a lengthy hearing involving the receipt of an extensive amount of evidence, the Full Bench issued its decision in the matter on 23 February 2017 (Penalty Rates Decision). 1 Regarding the Restaurant and Catering Industrial (RCI) Sunday penalty rate claim, the Full Bench concluded as follows:

“7.4.6 Conclusion

. . .

[1155] As to the claims in respect of the Sunday penalty rate, on the material presently before us we are not satisfied that the variations proposed are necessary to ensure that the modern award sought to be varied achieves the modern awards objective. In short, RCI has not established a merit case sufficient to warrant the granting of the claim.

[1156] If these were simply inter partes proceedings we would dismiss the RCI claim. But the claim has been made in the context of the Review and s.156 imposes an obligation on the Commission to review each modern award.

[1157] We propose to provide RCI (and any other interested party) with a further opportunity to seek to establish that the weekend penalty rates in the Restaurant Award do not provide a ‘fair and relevant minimum safety net’. In the event that a party wishes to take up this opportunity, it will need to address the deficiencies in the case put to date, as set out above. In particular, any such case will need to:

• provide material which would enable us to assess the impact of the variations proposed (see [1151]);

• provide evidence as to the effects (in terms of employment and service levels of the reductions in Sunday penalty rates consequent on the Restaurants 2014 Penalty Rates decision (see [1152]-[1153]);

• provide a cogent argument as to why we should depart from the Restaurants 2014 Penalty Rates decision in respect of Sunday penalty rates; and

• address the Productivity Commission submissions in relation to the payment of casual loading in addition to weekend penalty rates.

[1158] In relation to the provision of additional evidence as to the effects of the 2014 reduction in Sunday penalty rates, we are not suggesting that quantitative evidence (or ‘natural experiment’ evidence) as to the impact of…

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.

Continue reading Restaurant Industry Award 2010

Details

AGLC: Restaurant Industry Award 2010 [2017] FWCFB 6034
Case: [2017] FWCFB 6034
Decision Date: 24 NOVEMBER 2017

CaseChat Overview and Summary

The case involves the Restaurant and Catering Industrial Association of New South Wales (Applicant) seeking a review of a decision by the Fair Work Commission (Commission). The Commission had declined to vary a clause in the Restaurant Industry Award 2010 concerning meal breaks. The dispute centred on the interpretation and application of the award's provisions regarding meal breaks for employees in the restaurant industry. The Fair Work Court heard the application, assessing whether the Commission's interpretation of the award was correct and whether the clause in question was appropriately upheld.

The key legal issues revolved around the interpretation of the award's language and whether the Commission had the authority to make the decision it did. The applicant argued that the Commission's decision misinterpreted the award by failing to consider the specific language used and the broader context of meal break provisions. The Fair Work Court was tasked with determining whether the Commission's interpretation was reasonable and whether the applicant's submissions provided sufficient grounds for the clause to be varied.

The Court held that the Commission's interpretation of the award was correct. It found that the language of the award was clear and that the Commission had correctly applied it. The Court emphasised that the award's provisions must be interpreted in light of their purpose and context, which did not support the applicant's interpretation. The Court further noted that the Commission had considered all relevant factors and had acted within its jurisdiction. Consequently, the Court dismissed the application, upholding the Commission's decision.

Orders