1
Fair Work Act 2009
s.156 - 4 yearly review of modern awards
4 yearly review of modern awards
(AM2014/1 and others)
JUSTICE ROSS, PRESIDENT
VICE PRESIDENT HATCHER
SENIOR DEPUTY PRESIDENT ACTON
SENIOR DEPUTY PRESIDENT HAMBERGER
COMMISSIONER BISSETT MELBOURNE, 13 AUGUST 2014
4 yearly review of modern awards—award stage—common issues—timetable.
Background
[1] Under s.156 of the Fair Work Act 2009 (the Act) the Fair Work Commission (the
Commission) is required to review all modern awards every four years. A Full Bench
decision was issued on 17 March 20141 determining the jurisdictional issues and defining the
scope of the first 4 yearly review of modern awards (the Review).
[2] In the statement issued on 17 March 20142 the Commission stated that the Review
would comprise an Initial stage, dealing with jurisdictional issues, a Common issues stage
and an Award stage. The Initial stage is complete and the Common issues stage has
commenced dealing with issues identified in relation to annual leave and
transitional/sunsetting provisions.
[3] On 17 April 2014 a Draft Guide to the Award Stage was published on the
Commission’s website outlining the process that the Commission intends to follow in the
Award stage. An exemplar award prepared by staff of the Commission based on the Security
Services Industry Award 20103 was published at the same time as the draft guide. Following
feedback, the Guide and Exemplar award were republished on 17 June 2014 in final form.
[4] The Guide identified six awards that may be able to be combined into three awards. In
the first group of awards being considered by the Full Bench a further two awards have been
identified as potentially being able to be amalgamated (Cement and Lime Award 2010 and
1 [2014] FWCFB 1788.
2 [2014] FWC 1790.
3 MA000016.
[2014] FWCFB 5537
STATEMENT
E AUSTRALIA FairWork Commission
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000016/default.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2014fwc1790.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2014fwcfb1788.htm
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/Exemplar-award.pdf
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/4-yearly-review-Guide-to-Award-Stage.pdf
[2014] FWCFB 5537
2
Quarrying Award 2010). At this stage no further submissions have been received in relation
to amalgamating awards.
[5] The Award stage commenced with an initial conference for the first group of awards
on 13 May 2014. This was followed by a conference for each award before single members
to identify the issues and determine any areas of agreement. The members reported back to
the Full Bench and these reports are available on the Commission’s website. The initial
conference and report back phase for Group 1 awards is now complete.
[6] The purpose of this statement is to set out the timetable and procedure for the
remainder of the 4 yearly review.
[7] In the Notice of listing issued on 9 May 2014 the first group of awards under review
was divided into 5 sub-groups (1A–1E). The awards in these sub-groups are listed at
Attachment A. In order to ease the burden on those who have an interest in a number of
awards, the Commission will take a staged approach to the review of the Group 1 awards.
[8] On the basis of the reports from the initial conferences there are six awards in which
substantial matters appear to be contested. The Commission has decided that these awards
will be referred to two separate Full Benches for determination as follows:
(i) A Full Bench to hear and determine the issues raised in respect of the
following awards:
Meat Industry Award 2010;
Security Services Award 2010; and
Stevedoring Industry Award 2010.
(ii) A Full Bench to hear and determine the issues raised in respect of the
following awards:
Textile, Clothing, Footwear and Associated Industries Award 2010;
Timber Industry Award 2010; and
Vehicle Manufacturing, Repair, Services and Retail Award 2010.
[9] The remaining awards will be dealt with in two parts. The first part will be the
remaining awards in sub-groups 1A and B as set out at Attachment A. The second will be the
balance of the Group 1 awards (sub-groups 1C–1E).
[10] The Commission is currently in the process of finalising exposure drafts for each of
the Group 1 awards. These exposure drafts will be published in accordance with the timetable
set out in Attachment B. Parties will then be given the opportunity to make written
submissions and submissions in reply after which the awards will be called on for mention.
Hearings will be listed in October and November and parties will be given the opportunity to
make oral submissions regarding both the technical aspects of the exposure drafts and the
substantive variations they wish to pursue. Some awards or issues may be dealt with by a
separate Full Bench.
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/NOL-130514-AM20141-further-amended.pdf
https://www.fwc.gov.au/awards-and-agreements/modern-award-reviews/4-yearly-review/award-stage/awards-under-review
[2014] FWCFB 5537
3
Award stage
[11] The award stage for Groups 2, 3 and 4 will be run in a similar way to the process
undertaken in Group 1 (as set out in the Guide to the Award Stage). The steps are as follows:
(i) An initial conference will be held to discuss the scheduling of the group.
(ii) Following the initial conference the Commission will publish a briefing note,
setting out any issues identified by Commission staff for each award.
(iii) Each award will be referred to a single member for conference to identify
issues and the extent of any agreement, this change in process from Group 1 is
in response to feedback received that interested parties were required to attend
the Commission on too many occasions. The transcript of this conference will
be published on the Commission’s website.
(iv) The single member will report back to the Full Bench and the reports will be
published.
(v) The Commission will publish an exposure draft of the new award together
with directions for submissions. This exposure draft will incorporate any
technical and drafting changes proposed by the Commission and highlight any
provisions to be further reviewed. The exposure draft will not incorporate any
substantive changes.
(vi) Interested parties will be given the opportunity to make submissions in relation
to the exposure draft and any disputed issues.
(vii) Interested parties will be given the opportunity to make submissions in reply in
relation to the exposure draft and any disputed issues.
(viii) The matter will be called on for mention. The mention will before the
Presiding Member of the Full Bench only.
(ix) Further consultation will occur with either a single member or the Full Bench,
or alternatively a hearing may be listed before the Full Bench. Any outstanding
issues will be determined at this stage and the parties may be required to
adduce evidence of any claims.
(x) A decision or statement will be issued by the Full Bench with a determination
varying each modern award to give effect to any changes required. Feedback
may be sought on the form of the final order however this will not be an
opportunity to re-agitate claims.
[12] It should be noted that the review of each award will not be complete until all the
common issues proceedings are finalised.
[13] It is anticipated that the initial conference for Group 2 awards will be held in
September 2014. An initial conference for Group 3 and 4 awards will be held in November
2014. A more detailed timetable will be issued in the form of directions following these
conferences.
Penalty rates
[14] During the initial conferences a number of parties sought to press the inclusion of a
penalty rates common issue, however, the Commission was of the view that penalty rates did
not meet the definition of a common issue, as set out in the statement dated 17 March 2014.
The awards where penalty rates may be a contested issue have been included in Group 4.
[2014] FWCFB 5537
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Parties were consulted about the inclusion of these awards in Group 4 and no objections were
received. These awards were allocated to Group 4 to allow time for the interested parties to
gather evidence to support their claims and to ensure that any phasing in of transitional rates
or loadings will be complete. During the initial conference dealing with the scheduling of this
group, parties will be consulted about how these issues can most efficiently be dealt with. An
initial conference in relation to Group 4 awards will be held in November 2014.
[15] We note that the Pharmacy Guild of Australia has also foreshadowed raising penalty
rates as an issue in relation to the Pharmacy Industry Award 2010. This award is being dealt
with in Group 2.
Enterprise modern awards and State reference public sector modern awards
[16] Pursuant to Schedule 6 to the Fair Work (Transitional Provisions and Consequential
Amendments) Act 2009 (the Transitional Act) more than 140 applications were received prior
to 31 December 2013 to make enterprise modern awards. Separate Full Benches have been
constituted to determine the applications. The status of each application can be reviewed on
the Commission’s Enterprise award applications page.
[17] Schedule 6A of the Transitional Act requires the Commission to make State reference
public sector modern awards. A Full Bench has been established and must consider all State
reference public sector transitional awards regardless of whether an application was lodged.
These matters can be reviewed on the State reference public sector transitional award
applications page.
[18] Section 156 of the Act requires the Commission to review all modern awards. After
the current processes are completed, any enterprise modern awards or state reference public
sector awards made will be called on for review in 2015.
Common issues
[19] The Commission has already commenced dealing with the annual leave (AM2014/47)
and transitional/sunsetting provisions (AM2014/190) common issues. The annual leave
common issue is listed for a conciliation conference before Senior Deputy President Watson
on 14–15 August 2014 and for hearing before the Full Bench on 20–21 August 2014.
Amended directions for submissions were issued for the transitional/sunsetting provisions
common issue on 15 July 2014. Further directions in these matters will be issued in due
course.
[20] The focus of proceedings relating to the transitional/sunsetting provisions common
issue is accident pay, redundancy and district allowances. The Commission is aware that
there are a number of transitional provisions in awards which will not be dealt with as part of
the transitional provisions common issue proceedings and that some of these provisions are
scheduled to cease operation on 31 December 2014. Accordingly, any party who has interest
in an award that has a transitional issue and would like to have this issue heard and
determined prior to the end of the transitional period, must notify the Commission by email to
amod@fwc.gov.au by 4 pm on Friday 29 August 2014.
mailto:amod@fwc.gov.au
https://www.fwc.gov.au/awards-and-agreements/awards/award-modernisation/state-reference-public-sector-transitional-award-0
https://www.fwc.gov.au/awards-and-agreements/awards/award-modernisation/state-reference-public-sector-transitional-award-0
https://www.fwc.gov.au/awards-and-agreements/awards/award-modernisation/enterprise-award-applications
[2014] FWCFB 5537
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[21] At the Group 1 awards conference on 13 May 2014 the ACTU foreshadowed an
application in relation to apprentice conditions in a number of awards across all four groups.
This matter is now being dealt with as a common issue (AM2014/192). In the statement of
2 June 2014 the Full Bench referred the apprentices claim to Commissioner Roe for an initial
conference and report back to the Full Bench that dealt with the apprentice related
applications (AM2012/18 and others) during the Transitional Review (Justice Boulton,
Senior Deputy President Harrison and Commissioner Roe). Commissioner Roe issued a
Statement and Directions in relation to this issue on 27 June 2014.
[22] The remaining common issues are:
(i) Casual employment and part-time employment;
(ii) Public holidays; and
(iii) Award flexibility/facilitative provisions
[23] The part-time employment and casual employment common issues will commence
with an initial conference on Monday 29 September 2014 which will deal with the content of
these common issues. Directions will then be issued on a similar basis to the annual leave and
transitional provisions common issue. The hearings in relation to these common issues are
expected to be held in the first half of 2015.
[24] In the statement issued on 17 March 2014 the Commission stated that the list of
common issues is not closed and that further common issues may be identified as part of the
Review. Any additional common issues can be raised at the 29 September 2014 conference.
[25] The public holidays and the award flexibility/facilitative provisions common issues
will commence in early 2015. Any change to the Act arising from the Fair Work Amendment
Bill 2014, can be addressed during these proceedings.
[26] We have received correspondence from The Association of Payroll Specialists
regarding the motor vehicle allowance based on a rate per kilometre which appears in over
70 modern awards. It is submitted that the interaction between these rates and Australian Tax
Office rates may cause difficulty in payroll processing. The issues raised in this
correspondence will be discussed at the conference to be held on 29 September 2014.
[27] A preliminary timetable for the common issues is at Attachment C.
National Employment Standards
[28] A number of issues of alleged inconsistency with the National Employment Standards
(NES) have been raised to date4. Parties wishing to make a submission in relation to the
potential inconsistencies, including those raised by the Fair Work Ombudsman, should
forward their submissions to amod@fwc.gov.au by 26 September 2014. The NES issues
across all awards will be dealt with at the same time and will be called on for mention with
the sub-group 1A and 1B awards on 17 October 2014. Submissions in relation to NES issues
will be heard at the commencement of the hearings in relation to the sub-group 1A and 1B
awards on 23 October 2014.
4 Correspondence from the Fair Work Ombudsman dated 4 April 2014.
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/submissions/AM20141-corr-FWO-040414.pdf
mailto:amod@fwc.gov.au
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/common/AM2014192-state-and-dir-270614.pdf
[2014] FWCFB 5537
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Conclusion
[29] The Commission’s website will continue to be extensively used throughout the
Review. Parties who have not already done so are encouraged to subscribe to the award
matters notification service to be kept informed of the progress of this Review.
PRESIDENT
Printed by authority of the Commonwealth Government Printer
Price code C, PR554257
https://www.fwc.gov.au/about-us/reports-publications/subscribe-updates
https://www.fwc.gov.au/about-us/reports-publications/subscribe-updates
[2014] FWCFB 5537
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ATTACHMENT A—Group 1 awards divided by sub-group
Award code Award title
Sub-group 1A MA000098 Ambulance and Patient Transport Industry Award 2010
MA000022 Cleaning Services Award 2010
MA000024 Cotton Ginning Award 2010
MA000016 Security Services Industry Award 2010*
Sub-group 1B MA000060 Aluminium Industry Award 2010
MA000054 Asphalt Industry Award 2010
MA000055 Cement and Lime Award 2010
MA000056 Concrete Products Award 2010
MA000057 Premixed Concrete Award 2010
MA000037 Quarrying Award 2010
MA000107 Salt Industry Award 2010
Sub-group 1C MA000010 Manufacturing and Associated Industries and Occupations
Award 2010
MA000059 Meat Industry Award 2010*
MA000069 Pharmaceutical Industry Award 2010
MA000074 Poultry Processing Award 2010
MA000017 Textile, Clothing, Footwear and Associated Industries Award 2010**
MA000071 Timber Industry Award 2010**
MA000089 Vehicle Manufacturing, Repair, Services and Retail Award 2010**
MA000044 Wool Storage, Sampling and Testing Award 2010
Sub-group 1D MA000001 Black Coal Mining Industry Award 2010
MA000011 Mining Industry Award 2010
MA000072 Oil Refining and Manufacturing Award 2010
MA000015 Rail Industry Award 2010
MA000053 Stevedoring Industry Award 2010*
Sub-group 1E MA000061 Gas Industry Award 2010
MA000062 Hydrocarbons Industry (Upstream) Award 2010
MA000093 Marine Tourism and Charter Vessels Award 2010
MA000086 Maritime Offshore Oil and Gas Award 2010
MA000108 Professional Diving Industry (Industrial) Award 2010
MA000109 Professional Diving Industry (Recreational) Award 2010
* To be heard by Full Bench 1.
** To be heard by Full Bench 2.
http://www.fwc.gov.au/documents/modern_awards/award/ma000109/default.htm
http://www.fwc.gov.au/documents/modern_awards/award/ma000108/default.htm
http://www.fwc.gov.au/documents/modern_awards/award/ma000086/default.htm
http://www.fwc.gov.au/documents/modern_awards/award/ma000093/default.htm
http://www.fwc.gov.au/documents/modern_awards/award/ma000062/default.htm
http://www.fwc.gov.au/documents/modern_awards/award/ma000061/default.htm
http://www.fwc.gov.au/documents/modern_awards/award/ma000053/default.htm
http://www.fwc.gov.au/documents/modern_awards/award/ma000015/default.htm
http://www.fwc.gov.au/documents/modern_awards/award/ma000072/default.htm
http://www.fwc.gov.au/documents/modern_awards/award/ma000011/default.htm
http://www.fwc.gov.au/documents/modern_awards/award/ma000001/default.htm
http://www.fwc.gov.au/documents/modern_awards/award/ma000044/default.htm
http://www.fwc.gov.au/documents/modern_awards/award/ma000089/default.htm
http://www.fwc.gov.au/documents/modern_awards/award/ma000071/default.htm
http://www.fwc.gov.au/documents/modern_awards/award/ma000017/default.htm
http://www.fwc.gov.au/documents/modern_awards/award/ma000074/default.htm
http://www.fwc.gov.au/documents/modern_awards/award/ma000069/default.htm
http://www.fwc.gov.au/documents/modern_awards/award/ma000059/default.htm
http://www.fwc.gov.au/documents/modern_awards/award/ma000010/default.htm
http://www.fwc.gov.au/documents/modern_awards/award/ma000107/default.htm
http://www.fwc.gov.au/documents/modern_awards/award/ma000037/default.htm
http://www.fwc.gov.au/documents/modern_awards/award/ma000057/default.htm
http://www.fwc.gov.au/documents/modern_awards/award/ma000056/default.htm
http://www.fwc.gov.au/documents/modern_awards/award/ma000055/default.htm
http://www.fwc.gov.au/documents/modern_awards/award/ma000054/default.htm
http://www.fwc.gov.au/documents/modern_awards/award/ma000060/default.htm
http://www.fwc.gov.au/documents/modern_awards/award/ma000016/default.htm
http://www.fwc.gov.au/documents/modern_awards/award/ma000024/default.htm
http://www.fwc.gov.au/documents/modern_awards/award/ma000022/default.htm
http://www.fwc.gov.au/documents/modern_awards/award/ma000098/default.htm
[2014] FWCFB 5537
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ATTACHMENT B—Timeline for award stage – Group 1 awards
Event
(as per paragraph 7 of this Statement)
Sub-groups 1A & 1B1 Sub-groups 1C–1E2
(i) Initial conference re scheduling of
group
13 May 2014 13 May 2014
(ii) Briefing notes published * Some briefing notes for Group 1 awards were not
published prior to the conferences before single
members
(iii) Conferences before single member re
issues in awards
June – July 2014
(iv) Report back to Full Bench 18 July 2014 18 July 2014
(v) Exposure drafts issued for comment 5 September 2014 22 September 2014
(vi) Closing date – submissions on
exposure drafts
26 September 2014 20 October 2014
(vii) Closing date – submissions in reply 15 October 2014 12 November 2014
(viii) Mention before Presiding Member 1.00 pm on 17 October
2014
1pm on 14 November
2014
(ix) Further consultations and/or hearings Hearings to be listed on
23–24 October 2014
Hearings to be listed on
17–18 November 2014
The 6 awards being dealt with by Full Benches in
accordance with paragraph 7 of this Statement will
be the subject of separate Directions
(x) Decision issued December 2014 December 2014
Draft determinations will be issued for
comment
As required As required
1 For sub-groups see Attachment A
2 Notices of listing will be issued in due course
[2014] FWCFB 5537
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ATTACHMENT C—Preliminary timeline for common issues
Annual leave (AM2014/47)
25 March 2014 Background paper re scope of Annual leave common issue published
27 March 2014 Initial conference
7 April 2014 Statement issued [[2014] FWC 2279]
15 April 2014 Directions issued
30 May 2014 Background paper re annual leave issues published
3 June 2014 Mention and directions issued
5 August 2014 Further mention and/or Directions
14–15 August 2014 Conciliation conference before SDP Watson
20–21 August 2014 Full Bench hearing
Transitional/sunsetting provisions (AM2014/190)
2 June 2014 Background paper re Transitional/sunsetting provisions issues published
3 June 2014 Mention
15 July 2014 Directions issued
1 August 2014 Closing date for submissions in relation to any proposed variation
5 September 2014 Closing date for submissions in reply
8 September 2014 Further mention and programming listed (if required)
NOTE: The transitional/sunsetting provisions being dealt with in AM2014/190 relate to accident
pay, redundancy and district allowances only. There are other transitional or sunset provisions
contained in modern awards, however, these are considered more award specific and will be
dealt with during the award stage of the review.
Any interested party who has an award falling in award Groups 2, 3 or 4 that has a transitional
issue and would like to have this issue heard and determined prior to the end of the transitional
period, must notify the Commission by email to amod@fwc.gov.au by 4 pm on Friday 29 August
2014.
Apprentices (AM2014/192)
26 June 2014 Conference before Commissioner Roe
27 June 2014 Statement and directions issued
22 September 2014 Conference before Commissioner Roe
National Employment Standards
Issues of inconsistency with the National Employment Standards will be dealt with
concurrent with sub-group 1A and 1B awards:
26 September 2014 Closing date for submissions in relation to any NES inconsistencies
15 October 2014 Closing date any submissions in reply
https://www.fwc.gov.au/awards-and-agreements/modern-award-reviews/4-yearly-review/common-issues/am2014192-apprentice
mailto:amod@fwc.gov.au
https://www.fwc.gov.au/awards-and-agreements/modern-award-reviews/4-yearly-review/common-issues/am2014190-transitional
https://www.fwc.gov.au/decisionssigned/html/2014fwc2279.htm
https://www.fwc.gov.au/awards-and-agreements/modern-award-reviews/4-yearly-review/common-issues/am201447-annual-leave
[2014] FWCFB 5537
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17 October 2014 Mention
23 October 2014 Full Bench hearing
Casual employment and part-time employment
Proceedings will commence with an initial conference on 29 September 2014. Directions will
then be issued.
Public holidays
Proceedings will commence with an initial conference in early 2015. Directions will then be
issued.
Award flexibility/facilitative provisions
Proceedings will commence with an initial conference in early 2015. Directions will then be
issued.
Additional common issues
A conference will be held on 29 September 2014 to seek the views of the parties on the
addition of any further common issues. If any additional issues are identified as appropriate
to be dealt with as part of the 4 yearly review, they will be scheduled for 2015.
