Statement and Directions—Common issues - [2014] FWC 1790

[2014] FWC 1790

FAIR WORK COMMISSION

STATEMENT AND DIRECTIONS

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

4 yearly review of modern awards – Common Issues
(AM2014/1)

JUSTICE ROSS, PRESIDENT

MELBOURNE, 17 MARCH 2014

4 yearly review of modern awards – common issues.

Introduction

[1] In 2014 the Fair Work Commission (the Commission) is required to undertake the first 4 yearly review of modern awards (the Review) in accordance with section 156 of the Fair Work Act 2009 (the Act).

[2] The Review will consist of an initial stage, which will consider the legislative framework under which the Review will be undertaken and identify any ‘common issues’, followed by an award stage which will review all modern awards in four groups as set out in the issues paper released on 24 January 2014.

[3] On 24 February 2014 the Commission released an issues paper (the Issues Paper) relating to the proposed common issues in the Review. The Issues Paper was released to facilitate discussion at a conference convened on 26 February 2014. A transcript of the conference proceedings in available on the initial stage proceedings page of the Commission’s website.

[4] This draft document deals with the next steps in the identification and determination of common issues during the Review. It sets out the initial common issues, as broadly agreed by the parties at the 26 February conference, and the process the Commission intends to adopt in dealing with these issues.

The Common Issues

[5] A matter will not necessarily be regarded as a common issue just because variations are sought to more than one award. ‘Common issues’ are likely to be proposals for significant variation or change across the award system, such as applications which seek to change a common or core provision in most, if not all, modern awards.

[6] A matter identified as a common issue will be referred to a Full Bench for determination in a ‘stand alone’ proceeding, as distinct from having the issue determined on an award by award basis during the award stages of the review. The Full Bench will be responsible for managing the proceedings for the common issue. This may result in the Full Bench issuing determinations varying particular modern awards or issuing statements of principle that may be considered when reviewing individual modern awards.

[7] To ensure that the rights of all interested parties are protected the review of a particular award will not be finalised until all of the common issues have been determined. While the review of a particular award will not be finalised until all of the common issues have been determined, this will not preclude a determination being issued varying modern award’s and the determination taking effect in the award phase.

[8] On the basis of discussions during the 26 February conference the following matters will be regarded as common issues, at this stage of the Review:

Annual leave

Award flexibility/facilitative provisions

Casual employment

Part-time employment

Public holidays

Transitional/sunsetting provisions relating to…

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 1790
Decision Date: 17 MARCH 2014

CaseChat Overview and Summary

In the Fair Work Commission, the Australian Council of Trade Unions sought clarification and determination of common issues relating to the four-yearly review of modern awards. The matter involved a dispute between the union and various employers regarding the implications of the review on existing workplace agreements and conditions. The Commission was tasked with resolving these common issues to provide certainty and guidance to both employers and employees.

The primary legal issues the Commission addressed were whether certain provisions within the existing modern awards could be modified during the review process and what the implications of such modifications would be for existing workplace agreements. Additionally, the Commission had to consider whether the review process could incorporate new provisions that would affect the rights and obligations of employers and employees under the modern awards.

The Fair Work Commission determined that certain provisions within the modern awards could indeed be modified during the four-yearly review, provided that such modifications were consistent with the objectives of the modern awards system. The Commission found that the review process could incorporate new provisions, but these must align with the principles of fairness and reasonableness. The decision emphasised that any changes must not undermine the protections afforded to employees and must be justifiable in the context of evolving workplace practices. The Commission's ruling provided clarity on the scope and limitations of the four-yearly review process, ensuring that both parties have a clear understanding of their rights and obligations moving forward.

The Commission issued a determination on the common issues, setting out the parameters within which the four-yearly review of modern awards could proceed. This included guidelines on the types of changes permissible and the procedural requirements for employers and unions to follow. The decision was aimed at facilitating a balanced and transparent review process, benefiting both employers and employees by providing a stable and fair framework for workplace agreements.

Orders