Variation of awards on the initiative of the Commission

The applicant, the Fair Work Commission, applied to the Full Bench of the Fair Work Commission to vary the Live Performance Award 2020. The Commission sought to vary clause 25.3 of the award to increase the penalty for serious breaches of the award. The application was made under section 241 of the Fair Work Act 2009. The Commission took the initiative to apply for the variation, believing the existing penalty was insufficient to deter serious breaches and ensure compliance with the award.

The central legal issue the Full Bench needed to address was whether the proposed variation to the penalty for serious breaches of the award was appropriate and necessary. This involved considering the existing penalty, the nature and severity of serious breaches, and whether the proposed increase would be an effective deterrent without being unduly punitive. The Full Bench also had to consider whether the variation was consistent with the principles of fairness and proportionality in employment law.

The Full Bench determined that the existing penalty for serious breaches of the award was insufficient to ensure compliance and deter such breaches effectively. The Commission's proposed increase was considered reasonable and proportionate to the gravity of serious breaches. The Full Bench found that the variation aligned with the objectives of the award and the broader principles of fairness and proportionality. Consequently, the application to vary clause 25.3 of the Live Performance Award 2020 was approved.

The final orders of the Full Bench included the variation of clause 25.3 of the Live Performance Award 2020 to increase the penalty for serious breaches, as proposed by the Commission. The new penalty was set out in the order, reflecting the Full Bench's determination that the increased penalty would better achieve the award's compliance and deterrence objectives.