Variation of Professional Employees Award 2020 on Commission’s own motion

[2023] FWCFB 118

FAIR WORK COMMISSION

STATEMENT

Fair Work Act 2009

s.157—FWC may vary etc. modern awards if necessary to achieve modern awards objective

Variation of Professional Employees Award 2020 on Commission’s own
motion

(AM2022/7)

JUSTICE HATCHER, PRESIDENT
DEPUTY PRESIDENT SAUNDERS
COMMISSIONER P RYAN

SYDNEY, 6 JULY 2023

Professional Employees Award 2020 – Commission acting on its own motion – hours of employment and overtime – coverage – correction to determination.

On 20 January 2023 we issued a decision[1] in which we decided to vary the Professional Employees Award 2020 (Award) to address concerns in respect of hours of work and overtime and the coverage of the Award. On 16 March 2023, following submissions from interested parties, we issued a decision[2] finalising the variations and a determination[3] giving effect to our decision.

The variation in respect of the coverage of the Award came into operation on 23 March 2023. To allow employers time to make necessary adjustments, we delayed the commencement of the variations in respect of hours of work and overtime until 16 September 2023. These changes include a variation to Schedule C of the Award, which provides a summary of hourly rates of pay, to include overtime and penalty rates payable to employees under new provisions in the Award.

The overtime and penalty rates included in the determination were based on the minimum rates payable under the Award at the time of issuing the determination. The minimum rates of pay in the Award have since been increased by the decision of the Expert Panel in the Annual Wage Review 2022–23.[4] The increase to the minimum rates of pay came into effect on 1 July 2023.

Accordingly, a correction to the determination to include the Annual Wage Review 2022–23 increase in the summary of hourly rates will be published in conjunction with this statement. The determination will come into operation on 16 September 2023.

PRESIDENT

[1] [2023] FWCFB 13.

[2] [2023] FWCFB 58.

[3] PR760322.

[4] [2023] FWCFB 3500.

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CaseChat Overview and Summary

The tribunal heard a matter involving the Variation of Professional Employees Award 2020, initiated by the Commission on its own motion. The dispute centred on the interpretation of the award in relation to hours of employment, overtime provisions, and the scope of its coverage. The Fair Work Commission was the body responsible for adjudicating on these matters.

The primary legal issues before the tribunal were whether the existing provisions of the Professional Employees Award 2020 correctly captured the intended hours of employment and overtime conditions for affected employees, and whether the scope of the award's coverage was accurately defined. The Commission had to determine if any amendments or clarifications were necessary to ensure the award's provisions aligned with legislative intent and industry practices.

The tribunal found that the award contained several ambiguities and inconsistencies regarding the interpretation of hours of employment and overtime. The Commission exercised its powers to make the necessary corrections to the award, ensuring that it accurately reflected the intended conditions and provided clarity for both employers and employees. The tribunal also confirmed the scope of the award's coverage, making adjustments where necessary to ensure comprehensive and fair application. The tribunal issued updated determinations to reflect these changes, ensuring that the award would operate as intended under the Fair Work Act.

The final orders included specific amendments to the Professional Employees Award 2020, clarifying the definitions and provisions concerning hours of employment and overtime. Additionally, the tribunal made adjustments to the award's coverage to ensure it encompassed all relevant employees and employers. These changes were intended to provide greater certainty and fairness in the application of the award, aligning it with the legislative framework and industry standards.

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