Variation on the Commission’s own motion – junior rates - [2023] FWC 2889

[2023] FWC 2889

FAIR WORK COMMISSION

STATEMENT

Fair Work Act 2009

s 160—Variation of modern award to remove ambiguity or uncertainty or correct error

Variation on the Commission’s own motion – junior rates

(AM2023/27)

JUSTICE HATCHER, PRESIDENT

SYDNEY, 8 NOVEMBER 2023

Section 160 of the Fair Work Act 2009 (Cth) – proposed variations on the Commission’s own motion to remove uncertainty – junior rates – various awards – draft determinations.

This matter has been commenced on the Commission’s own initiative under s 160 of the Fair Work Act 2009 (Cth) (FW Act) to deal with issues identified in the junior rates provisions in 34 modern awards.

On 30 October 2023, I issued a decision correcting errors and removing uncertainties in the Miscellaneous Award 2020 (Miscellaneous) and the Black Coal Mining Industry Award 2020[1] (Black Coal Award). In each award, errors and uncertainties with the junior rates provisions had been identified.[2]

I have identified a further 34 awards where the terminology used to express the age at which certain rates apply to junior employees could give rise to uncertainties. The affected awards are listed at Appendix A.

Section 160 of the FW Act allows the Commission to make a determination varying a modern award to remove ambiguity or uncertainty or correct an error. Section 160(2)(a) provides that the Commission may make such a determination on its own initiative. The principles applicable to the interpretation and application of s 160 are well established. It is first necessary to determine whether there is ambiguity, uncertainty or error in an award. Once established, further consideration can be given as to whether the discretion to vary the award should be exercised.[3]

A clause can be uncertain when its meaning or effect is vague or unclear.[4] Appendix B sets out award provisions where the terminology used to express the age at which certain rates apply to junior employees may be uncertain and proposes amendments to remove any uncertainty.

It is my provisional view that the terminology identified in the 34 awards listed at Appendix A could give rise to an uncertainty for the purpose of s 160 and should be varied to remove the identified uncertainties. It is also my provisional view that the proposed amendments in Appendix B improve clarity for the average reader and make the award internally consistent.

Draft determinations varying 34 modern awards to give effect to my provisional views will be published with this Statement. Interested parties may file any response to my provisional views by 4:00 pm (AEDT) on Wednesday, 29 November 2023. If no submissions are received in opposition to my provisional views in respect of any award, the award will be varied in accordance with the draft determination.

PRESIDENT

Appendix A—Awards containing terminology that could give rise to uncertainty

Award name	Award code
Aboriginal and Torres Strait Islander Health Workers and Practitioners and Aboriginal Community Controlled Health Services Award 2020	MA000115
Airline Operations-Ground Staff Award 2020	MA000048
Alpine Resorts Award 2020	MA000092
Aluminium Industry Award 2020

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Variation on the Commission’s own motion – junior rates

Details

AGLC: Variation on the Commission’s own motion – junior rates [2023] FWC 2889
Case: [2023] FWC 2889
Decision Date: 8 NOVEMBER 2023

CaseChat Overview and Summary

The case involves a decision by the Fair Work Commission (FWC) under Section 160 of the Fair Work Act 2009 (Cth) to address ambiguities and uncertainties in the junior rates provisions across 34 modern awards. The Commission identified potential issues in the age-related terminology used to specify when certain rates apply to junior employees, which could lead to uncertainties. This initiative follows a previous decision by the Commission to correct similar issues in the Miscellaneous Award 2020 and the Black Coal Mining Industry Award 2020. The court was required to determine whether the identified terminology indeed caused ambiguity or uncertainty and whether the proposed variations would effectively remove these issues.

The court, led by Justice Hatcher, reviewed the specific clauses in each of the 34 awards that outlined junior rates. It was noted that the language used in these clauses could be interpreted in multiple ways, leading to potential confusion among employers and employees regarding the correct rates to be applied. The court considered the principles established in previous cases, emphasizing the need for clarity in award provisions to avoid misinterpretation. The proposed variations aimed to simplify the language and make the awards internally consistent and clearer for the average reader.

Based on its analysis, the court provisionally concluded that the identified terminology did indeed introduce uncertainties within the meaning of Section 160 of the FW Act. The proposed amendments, detailed in Appendix B of the decision, were deemed to enhance clarity and consistency across the affected awards. The court published draft determinations for the variations and invited interested parties to submit any responses by a specified deadline. If no opposition was received, the awards would be varied in accordance with the draft determinations. The final orders will depend on the feedback received during the response period.

Orders