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Fair Work Act 2009
s.156 - 4 yearly review of modern awards
4 yearly review of modern awards – Common Issues
(AM2014/1)
JUSTICE ROSS, PRESIDENT MELBOURNE, 17 MARCH 2014
4 yearly review of modern awards – common issues.
Introduction
[1] In 2014 the Fair Work Commission (the Commission) is required to undertake the first
4 yearly review of modern awards (the Review) in accordance with section 156 of the Fair
Work Act 2009 (the Act).
[2] The Review will consist of an initial stage, which will consider the legislative
framework under which the Review will be undertaken and identify any ‘common issues’,
followed by an award stage which will review all modern awards in four groups as set out in
the issues paper released on 24 January 2014.
[3] On 24 February 2014 the Commission released an issues paper (the Issues Paper)
relating to the proposed common issues in the Review. The Issues Paper was released to
facilitate discussion at a conference convened on 26 February 2014. A transcript of the
conference proceedings in available on the initial stage proceedings page of the Commission’s
website.
[4] This draft document deals with the next steps in the identification and determination of
common issues during the Review. It sets out the initial common issues, as broadly agreed by
the parties at the 26 February conference, and the process the Commission intends to adopt in
dealing with these issues.
The Common Issues
[5] A matter will not necessarily be regarded as a common issue just because variations
are sought to more than one award. ‘Common issues’ are likely to be proposals for significant
variation or change across the award system, such as applications which seek to change a
common or core provision in most, if not all, modern awards.
[6] A matter identified as a common issue will be referred to a Full Bench for
determination in a ‘stand alone’ proceeding, as distinct from having the issue determined on
an award by award basis during the award stages of the review. The Full Bench will be
responsible for managing the proceedings for the common issue. This may result in the Full
[2014] FWC 1790
STATEMENT AND DIRECTIONS
E AUSTRALIA FairWork Commission
http://www.fwc.gov.au/index.cfm?pagename=awardsmodernfouryr&page=submissions
http://www.fwc.gov.au/sites/awardsmodernfouryr/submissions/AM20141_issuespaper_common_240214.pdf
http://www.fwc.gov.au/sites/awardsmodernfouryr/submissions/AM20141_issuespaper_24012014.pdf
[2014] FWC 1790
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Bench issuing determinations varying particular modern awards or issuing statements of
principle that may be considered when reviewing individual modern awards.
[7] To ensure that the rights of all interested parties are protected the review of a
particular award will not be finalised until all of the common issues have been determined.
While the review of a particular award will not be finalised until all of the common issues
have been determined, this will not preclude a determination being issued varying modern
award’s and the determination taking effect in the award phase.
[8] On the basis of discussions during the 26 February conference the following matters
will be regarded as common issues, at this stage of the Review:
Annual leave
Award flexibility/facilitative provisions
Casual employment
Part-time employment
Public holidays
Transitional/sunsetting provisions relating to accident pay, redundancy and district
allowances (Note: Other transitional or sunset provisions in modern awards will be dealt with
during the award phase of the Review).
[9] These matters will constitute the initial list of common issues to be determined in the
Review. The list of common issues is not closed and it is anticipated that further common
issues will be identified during the course of the Review. A further common issues conference
will be held in October 2014 to review the common issues process and to seek the views of
parties on any additional common issues that have arisen during the course of the Review.
Further details of this conference will be provided in due course.
[10] As stated in the Issues Paper, proposals to vary penalty rates will be dealt with in the
award phase of the Review, except where a proposal seeks to vary, for example, the public
holiday penalty rate across all or most modern awards.
[11] A number of parties at the 26 February conference suggested that award coverage
should be regarded as a common issue. I am not persuaded that award coverage should be
dealt with as a common issue, as it relates to the delineation of coverage between a small
number of individual awards. A conference will be convened at the commencement of each
award phase to discuss proposals to vary awards, including in relation to coverage. Any
coverage issues raised would then be determined as a threshold issue before any other
proposed variations are considered.
[12] Parties concerned about coverage should foreshadow their proposals in the form of
correspondence and send their correspondence to amod@fwc.gov.au.
[13] The timetable for hearing the initial common issues is set out below:
mailto:amod@fwc.gov.au
[2014] FWC 1790
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Time period for the hearing of the
common issues
Common Issues
First half 2014 Annual Leave
Second half 2014 (commencing July) Transitional/sunsetting provisions
relating to accident pay, redundancy
and district allowances)
Second half 2014 (commencing
September)
Part-time employment & Casual
employment (commencing September)
First half of 2015 Award flexibility/facilitative
provisions
Public holidays
[14] I am conscious that the transitional provisions issue needs to be determined before the
end of 2014. To facilitate the determination of this common issue a draft background
document will be released in May 2014 setting out the relevant transitional provisions in each
modern award; the AIRC decision(s) relating to those provisions and the relevant statutory
provisions. A directions hearing in relation to this common issue will be held in the week
commencing 2 June 2014. Further details will be provided in due course.
The Next Stage
[15] At the 26 February conference it was clear that although there was broad measure of
agreement in relation to the proposed common issues, there were divergent views at to the
variations proposed in relation to each issue (i.e. the scope of each common issue). A process
will be established to determine the scope of each common issue before the proceedings are
referred to a Full Bench. This will be at a time approximate to that outlined in the timeline.
[16] I now invite parties to make submissions in relation to the scope of the annual leave
common issue. These submissions should include a draft determination setting out the
variation proposed and the list of awards intended to be varied. Any submissions in this
regard should be made to amod@fwc.gov.au by 4 pm on Thursday 20 March 2014. An issues
paper summarising the submissions in respect to the scope of the annual leave common issue
will be released on 25 March 2014 and a conference will be held on 27 March 2014.
[17] Interested parties are invited to provide any comments they wish to make in relation to
the issues raised in this draft document to amod@fwc.gov.au by 4 pm on Friday 14 March
2014. A final version of the Statement and Directions will be released on 17 March 2014.
mailto:amod@fwc.gov.au
mailto:amod@fwc.gov.au
[2014] FWC 1790
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[18] To assist the parties a timeline in relation to the identification and determination of
common issues is attached to this document.
PRESIDENT
Printed by authority of the Commonwealth Government Printer
Price code C, PR548702
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Common Issues: Timeline
Date (2014) Action
7 March Release of Draft Statement and
Directions
14 March Comments due regarding the Draft
Statement and Directions
17 March Release of final version of the
Statement and Directions
20 March Submissions due regarding the
annual leave common issue
25 March Release of an issues paper on the
annual leave common issue
27 March Conference on the scope of the
annual leave common issue
2 April Release of Statement on the scope of
the annual leave common issue and
Full Bench constituted
May Release of a background paper on the
transitional provisions common issue
Week commencing 2 June Directions hearing in relation to the
transitional provisions common issue
October Further common issues conference
