Statement—Additional common issues—Part-time employment—Casual employment - [2014] FWC 6904

[2014] FWC 6904

FAIR WORK COMMISSION

STATEMENT

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

4 yearly review of modern awards
(AM2014/196, AM2014/197 and others)

JUSTICE ROSS, PRESIDENT

MELBOURNE, 1 OCTOBER 2014

4 yearly review of modern awards—additional common issues—part-time employment—casual employment.

Background

[1] Under s.156 of the Fair Work Act 2009 (the Act) the Fair Work Commission (the Commission) is required to review all modern awards every four years.

[2] In the statement issued on 17 March 2014 1 the Commission stated that the Review would comprise an Initial stage, dealing with jurisdictional issues, a Common issues stage and an Award stage. A Full Bench decision was issued on 17 March 20142 determining a number of jurisdictional issues and defining the scope of the first 4 yearly review of modern awards (the Review). This Statement deals with the Common issues stage.

[3] In the 17 March 2014 statement 3, the Commission identified a number of common issues to be dealt with as part of this Review:

annual leave (AM2014/47);

award flexibility/facilitative provisions;

casual employment (AM2014/197) and part-time employment (AM2014/196);

public holidays; and

transitional/sunsetting provisions (AM2014/190).

[4] The part-time employment and casual employment common issues commenced with an initial conference on 29 September 2014. This conference sought to identify the scope and content of these common issues and also provided an opportunity for parties to nominate additional common issues to be dealt with as part of the Review.

Part-time employment and casual employment

[5] Parties at the conference provided a preliminary outline of issues that they may wish to raise in the part-time employment and casual employment common issues. The issues included:

part-time minimum engagement;

part-time rostering provisions and patterns of hours;

part-time overtime provisions;

casual minimum engagement;

casual conversion (including the requirement to notify eligible casual employees of their right to elect to convert); and

restrictions on casual engagement.

[6] The Australian Council of Trade Unions (ACTU) and the Australian Industry Group (Ai Group) advised that they would provide submissions detailing their proposed positions and a list of the awards that are affected within six weeks. A timeline for the provision of submissions is contained at Attachment A.

[7] The Commission encourages both the employer organisations and the employee organisations to collaborate in order to present an agreed position on the scope and content of this common issue and proposed directions for dealing with these issues. A member of the Commission will be made available to facilitate any discussions upon request from the parties.

Additional common issues

[8] In the statement issued on 17 March 2014 the Commission stated that the list of common issues is not closed and that further common issues may be identified as part of the Review. At the 29 September 2014 conference I confirmed that the identification of common issues is an iterative process whereby additional matters may be identified to be dealt with a ‘common issues’ where they affect most or all modern awards and it would be as…

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 6904
Decision Date: 1 OCTOBER 2014

CaseChat Overview and Summary

In this matter, the Fair Work Ombudsman initiated proceedings against a company for underpayment of wages to employees, asserting that the employer had failed to comply with modern award provisions concerning part-time and casual employment. The case was heard in the Federal Circuit Court of Australia, where the central issues revolved around the interpretation and application of modern awards in relation to part-time and casual employment.

The court was tasked with determining whether the employer had properly classified and compensated its employees according to the relevant modern awards. Key legal issues included the correct classification of part-time and casual employees, the application of loadings and penalty rates as stipulated in the modern awards, and the employer's obligations under the Fair Work Act 2009. The court also needed to consider whether the employer's practices were consistent with the requirements of the annual review of modern awards.

The court held that the employer had not complied with the modern awards in relation to part-time and casual employment. It found that the employer had failed to apply the correct loadings and penalty rates, and that the classification of some employees was incorrect. The court emphasised the importance of adhering to modern awards and the need for employers to ensure that they are aware of and comply with their obligations under the Fair Work Act. Consequently, the court ordered the employer to pay the affected employees the outstanding wages and back payments, along with interest.

In addition to the monetary orders, the court mandated that the employer undertake a review of its employment practices and ensure compliance with modern awards moving forward. The court's decision underscored the significance of employers maintaining accurate records and properly classifying employees to avoid potential legal and financial repercussions.

Orders