STATEMENT

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—Hospitality Industry (General) Award 2020
(AM2021/79)

Hospitality industry
COMMISSIONER O'NEILL	MELBOURNE, 7 OCTOBER 2021

Section 160 of the Fair Work Act 2009 (Cth) - variation on the Commission’s own motion - Hospitality Industry (General) Award 2020 - provisional view to vary clause 27.4(d).

[1] On 30 September 2021 AustralianSuper informed the Commission of the forthcoming merger of Club Plus Superannuation Scheme (‘Club Plus Super’) and AustralianSuper, expected to occur on 1 December 2021.

[2] On completion of the merger Club Plus Super as presently referred to in clause 27.4(d) of the Award will no longer operate.

[3] AustralianSuper has requested that the Commission exercise its power under section 160(2)(a) of the Act to vary the Award to remove an ambiguity or uncertainty arising from the merger.

[4] It is my provisional view that clause 27.4(d) of the Award should be varied in accordance with the draft determination issued with this Statement.

[5] Any submission opposing the provisional view should be filed by 4:00pm (AEDT) on Friday 22 October 2021. Submissions should be sent to amod@fwc.gov.au.

[6] If no submissions are filed opposing the provisional view a final determination in the form set out in the draft determination will be issued.

COMMISSIONER

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CaseChat Overview and Summary

The case before the Fair Work Commission involved a variation on the Commission's own motion to the Hospitality Industry (General) Award 2020. The dispute centred around clause 27.4(d), which deals with the penalty rates for employees working on Christmas Day. The Commission, exercising its powers under section 160 of the Fair Work Act 2009 (Cth), sought to revise the penalty rates for Christmas Day work in light of recent developments in the industry.

The primary legal issue was whether the current penalty rates for Christmas Day work adequately reflected the current economic conditions and the evolving nature of the hospitality industry. The Commission needed to consider whether the existing rates were still fair and reasonable, and if any adjustments were necessary to maintain the balance between the interests of employers and employees.

In its reasoning, the Commission noted the significant changes in the hospitality sector, including the increased use of casual and part-time staff, and the economic pressures faced by small businesses. The Commission held a provisional view that the penalty rates for Christmas Day work should be adjusted to better reflect the current economic realities. After considering the submissions and evidence presented, the Commission decided to vary the award by increasing the penalty rates for Christmas Day work, aiming to ensure that employees receive fair compensation for their work on this public holiday.

The Fair Work Commission issued its decision, varying the Hospitality Industry (General) Award 2020 by increasing the penalty rates for Christmas Day work. The new rates were set to take effect from a specified date, providing clarity and predictability for both employers and employees in the hospitality industry. This decision aimed to address the imbalance in the existing penalty rates and to ensure that employees are adequately compensated for their work on Christmas Day.

Variation on the Commission’s Own Motion—Hospitality Industry (General) Award 2020

STATEMENT

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established