| [2024] FWC 768 |
| FAIR WORK COMMISSION |
| STATEMENT |
Fair Work Act 2009
Schedule 1, cl.111C–FWC to vary certain modern awards
Variation of modern awards to include a right to disconnect term
(AM2024/14)
| JUSTICE HATCHER, PRESIDENT | SYDNEY, 26 MARCH 2024 |
Variation of modern awards to include a right to disconnect term – Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024 – commencing process to develop a right to disconnect award term and guidelines – timetable confirmed.
Introduction
On 12 March 2024, I issued a statement commencing a process to vary all modern awards to include provisions for a right to disconnect term by 26 August 2024. This is a requirement stipulated by the Fair Work Act 2009 (Cth) following the passage of the Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2023 (Closing Loopholes Act (No 2).
The statement of 12 March 2024 included a proposed timetable for the award variation process and invited comments from interested parties. Responses to the proposed timetable were received from the Australian Industry Group (Ai Group), the Australian Council of Trade Unions (ACTU) and Queensland Law Society (QLS). QLS did not provide any feedback on the timetable. Both the Ai Group and the ACTU proposed amendments to allow the parties additional time to file their submissions in reply. The Ai Group proposed that initial submissions should be filed on 13 May 2024 to allow a period of three weeks to prepare and file submissions in reply by 3 June 2024. The ACTU suggested that submissions in reply should be filed on 10 June 2024 instead of 3 June 2024.
I have decided to adjust the timetable as proposed by the ACTU, which will also accommodate the request of the Ai Group for a three-week period for reply submissions. As 10 June 2024 is a public holiday, parties will be required to lodge submissions in reply by 12:00 pm (AEST) on 11 June 2024. The final timetable is set out below:
Final timetable
Date Proposed consultation 2-3 May 2024 Consultations with peak councils 20 May 2024 Parties to lodge submissions by 12:00pm AEST on proposed Right to Disconnect term and guidelines, including any award specific matters and the delayed operation for small businesses. 11 June 2024 Parties to lodge submissions in reply by 12:00pm AEST 17-21 June 2024 Consultation sessions with interested parties 15 July 2024 Draft award terms published by the Commission for comment 1 August 2024 Comments on draft award terms due 23 August 2024 Final determinations varying modern awards published 26 August 2024 Determinations come into operation (except small business) 26 August 2025 Determinations come into operation for small business
All submissions should be sent to awards@fwc.gov.au and will be published on the Commission’s website. This email address can also be used for enquiries about the matter.
This matter will now be allocated to a Full Bench consisting of myself, Vice President Asbury, Deputy President O’Neill and Commissioner McKinnon.
PRESIDENT
Printed by authority of the Commonwealth Government Printer
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- AGLC
- Variation of modern awards to include a right to disconnect term [2024] FWC 768
- Case
- [2024] FWC 768
- Decision Date
CaseChat Overview and Summary
The primary legal issue the Commission addressed was the implementation of the new statutory requirement to incorporate a right to disconnect term in all modern awards. This involved determining an appropriate timetable for the award variation process, balancing the need for timely action with the necessity to allow for comprehensive consultation and consideration of submissions from stakeholders. The Commission also had to consider and respond to the feedback and proposed amendments to the timetable from the Australian Industry Group and the Australian Council of Trade Unions, while ensuring that the final timetable remained practicable and effective.
Justice Hatcher, on behalf of the Commission, confirmed the timetable for the award variation process, incorporating the amendments proposed by the Australian Council of Trade Unions. The final timetable, which provides additional time for parties to file their submissions in reply, was set out in detail. The timetable includes specific dates for consultations, submission of initial and reply submissions, consultation sessions, publication of draft award terms, and final determinations. The timetable was designed to ensure that all submissions are considered thoroughly and that the process is transparent and inclusive. The Commission also confirmed that the matter would be allocated to a Full Bench for further consideration.
The final orders of the Commission included the confirmation of the timetable for the award variation process, which will lead to the variation of modern awards to include a right to disconnect term by 26 August 2024. The Commission invited all submissions to be sent to awards@fwc.gov.au and directed that all submissions and related communications be published on the Commission’s website. The determinations will come into operation on 26 August 2024, with a delayed operation for small businesses until 26 August 2025.
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