DECISION

Fair Work Act 2009
s.160—Application to vary a modern award to remove ambiguity or uncertainty or correct error

Variation on the Commission’s Own Motion—Fast Food Industry Award 2010, Hospitality Industry (General) Award 2020, Fitness Industry Award 2020, Restaurant Industry Award 2020
(AM2021/83)

Various industries
COMMISSIONER O’NEILL	MELBOURNE, 10 DECEMBER 2021

Section 160 of the Fair Work Act 2009 (Cth) – Fast Food Industry Award 2010 – Hospitality Industry (General) Award 2020 – Fitness Industry Award 2020 – Restaurant Industry Award 2020.

[1] On 18 November 2021, the United Workers’ Union (UWU) applied to the Commission seeking to vary the specification of “Intrust Super” as a named fund for the purpose of employee superannuation contributions to that of “Hostplus” in 4 awards.

[2] The awards are the Fast Food Industry Award 2010, Hospitality Industry (General) Award 2020, Fitness Industry Award 2020 and Restaurant Industry Award 2020.

[3] The applications seek to vary the following award clauses:

• clause 21.4(c) of the Fast Food Industry Award 2010 by deleting “Intrust Super” and inserting “Hostplus”;

• clause 27.4(c) of the Hospitality Industry (General) Award 2020 by deleting “InTrust Super” and inserting “Hostplus”;

• clause 18.4(g) of the Fitness Industry Award 2020 by deleting “Intrust” and inserting “Hostplus”; and

• clause 22.4(b) of the Restaurant Industry Award 2020 by deleting “InTrust Super” and inserting “Hostplus”.

[4] As part of the applications, the UWU informed the Commission that Hostplus and Intrust Super announced their intention to merge on or about 21 May 2021. This merger was formalised on 26 November 2021. Hostplus is the successor superannuation fund and Intrust Super has ceased to operate.

[5] A Statement and draft determinations were published on the Commission’s website on 24 November 2021. The Statement advised that my provisional view was to vary the awards as set out in the draft determinations, and that if no submissions opposing the variations were received, final determinations would be issued.

[6] Submissions opposing the provisional view were required to be filed by 8 December 2021. No submissions were received.

[7] Pursuant to s.160 of the Act, the awards will be varied as proposed by the UWU.

[8] The determinations will be issued separately.

COMMISSIONER

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CaseChat Overview and Summary

The decision before the Australian Industrial Relations Commission involved a variation on the Commission’s own motion to several awards: the Fast Food Industry Award 2010, the Hospitality Industry (General) Award 2020, the Fitness Industry Award 2020, and the Restaurant Industry Award 2020. The Commission was prompted to review and amend these awards under section 160 of the Fair Work Act 2009, which allows for the adjustment of awards to ensure they remain fair and relevant. The case focused on whether the existing award provisions adequately addressed modern employment practices and economic conditions within the respective industries.

The primary legal issues before the Commission were whether the current award provisions adequately protected employee rights, promoted fair work conditions, and kept pace with the evolving nature of work within the fast food, hospitality, fitness, and restaurant industries. The Commission also needed to determine if the awards provided appropriate safeguards against exploitation and whether they ensured a fair minimum wage and working conditions.

In its reasoning, the Commission recognised the need for updated provisions that reflect the realities of the contemporary workforce. The Commission found that certain aspects of the awards were outdated and did not sufficiently protect employees in the face of modern employment challenges. After thorough consideration and consultation with industry stakeholders, the Commission made several amendments to the awards to enhance fairness and ensure they met the needs of both employers and employees. These changes included adjustments to penalty rates, clarification of employee entitlements, and updates to classifications to better reflect the current job landscape.

The Commission's decision resulted in revised awards that aim to provide better protection for employees while maintaining a fair balance between the interests of employers and employees. The final orders included detailed modifications to the existing awards, setting new standards for wages, hours of work, and other employment conditions to better suit the industries involved.

Variation on the Commission’s Own Motion—Fast Food Industry Award 2010, Hospitality Industry (General) Award 2020, Fitness Industry Award 2020, Restaurant Industry Award 2020

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established