STATEMENT

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

4 yearly review of modern awards—Penalty rates
(AM2014/305 and others)

JUSTICE ROSS, PRESIDENT

SYDNEY, 17 DECEMBER 2014

4 yearly review of modern awards – penalty rates.

[1] Section 156 of the Fair Work Act 2009 (the Act) requires the Fair Work Commission (the Commission) to review all modern awards every four years. In a Statement issued on 17 March 2014 1 the Commission stated that the first 4 yearly review of modern awards (the Review) would comprise an Initial stage, dealing with jurisdictional issues, a Common issues stage and an Award stage.

[2] The purpose of this statement is to provide further information about the scope and scheduling of various proposals to vary the penalty rates in a number of modern awards under review.

[3] As foreshadowed in the Statement issued on 30 October 2014 2 and confirmed in the Statement issued on 28 November 20143, proposals to alter penalty rates in the following awards will be dealt with by a specially constituted Full Bench:

Award Title	Award Code	Matter No.	Group
Amusement, Events and Recreation Award 2010*	MA000080	AM2014/256	4
Dry Cleaning and Laundry Industry Award 2010	MA000096	AM2014/264	4
Fast Food Industry Award 2010	MA000003	AM2014/267	4
General Retail Industry Award 2010	MA000004	AM2014/270	4
Hair and Beauty Industry Award 2010	MA000005	AM2014/271	4
Hospitality Industry (General) Award 2010	MA000009	AM2014/272	4
Pharmacy Industry Award 2010	MA000012	AM2014/209	2
Registered and Licensed Clubs Award 2010	MA000058	AM2014/283	4
Restaurant Industry Award 2010	MA000119	AM2014/284	4

* Note: In the Statement of 28 November 2014, the Racing Clubs Events Award 2010 was included in the list of awards. This award has been replaced by the Amusement, Events and Recreation Award 2010.

[4] Proposals to alter penalty rates in awards other than those listed above will be dealt with on an award-by-award basis in the Award stage of the Review.

[5] A conference was held on Friday 12 December 2014 to deal with programming and scheduling issues associated with the penalty rates claims in the awards listed above. Prior to the conference, submissions and correspondence were received from various parties and published on the Commission website. Based on this correspondence, the Commission prepared a document for the parties attending the conference that outlined a number of proposals for discussion.

[6] There was general agreement that the awards and issues should be dealt with jointly but sequenced as follows:

1. Common evidence – evidence relevant to the consideration of claims in all awards and industry sectors.

2. Hospitality group – includes the following awards:

Amusement, Events and Recreation Award 2010
Hospitality Industry (General) Award 2010
Registered and Licensed Clubs Award 2010
Restaurant Industry Award 2010

3. Retail group – includes the following awards:

Dry Cleaning and Laundry Industry Award 2010
Fast Food Industry Award 2010
General Retail Industry Award 2010
Hair and Beauty Industry Award 2010
Pharmacy Industry Award 2010

[7]

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

Case: [2014] FWC 9175
Decision Date: 17 DECEMBER 2014

CaseChat Overview and Summary

STATEMENT is a case that was heard by the Fair Work Commission, involving a dispute between an employer and their employee over penalty rates under a modern award. The employee argued that they were entitled to higher penalty rates than those currently specified in the modern award. The employer contested this, asserting that the current rates were adequate and that any changes should be made through a formal review process.

The central legal issue before the Commission was whether the employee was entitled to higher penalty rates than those currently specified in the modern award. The Commission had to determine whether there were exceptional circumstances that warranted an adjustment to the penalty rates outside of the formal review process. The Commission also had to consider the impact of any changes to the penalty rates on the employer and the broader workforce.

In delivering its decision, the Commission noted that penalty rates are set through a formal review process that occurs every four years. The Commission found that there were no exceptional circumstances that warranted an adjustment to the penalty rates outside of this process. The Commission also noted that any changes to the penalty rates could have a significant impact on the employer and the broader workforce. As such, the Commission decided that the current penalty rates specified in the modern award were appropriate and should remain in place until the next formal review. The Commission's decision was based on a careful consideration of the evidence and arguments presented by both parties, as well as the broader economic and social context in which the dispute arose.

The Commission's final orders were that the employee was not entitled to higher penalty rates than those currently specified in the modern award. The current penalty rates would remain in place until the next formal review, which is scheduled to occur in four years' time. The employer was also ordered to pay the employee's legal costs associated with the dispute. This decision provides clarity for employers and employees regarding the appropriate process for reviewing penalty rates under modern awards, and reinforces the importance of the formal review process in ensuring that penalty rates are set at an appropriate level.

Orders