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Fair Work Act 2009
s.156 - 4 yearly review of modern awards
4 yearly review of modern awards
(AM2014/196, AM2014/197 and others)
JUSTICE ROSS, PRESIDENT MELBOURNE, 1 OCTOBER 2014
4 yearly review of modern awards—additional common issues—part-time employment—
casual employment.
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.
[2] In the statement issued on 17 March 20141 the Commission stated that the Review
would comprise an Initial stage, dealing with jurisdictional issues, a Common issues stage and
an Award stage. A Full Bench decision was issued on 17 March 20142 determining a number
of jurisdictional issues and defining the scope of the first 4 yearly review of modern awards
(the Review). This Statement deals with the Common issues stage.
[3] In the 17 March 2014 statement3, the Commission identified a number of common
issues to be dealt with as part of this Review:
annual leave (AM2014/47);
award flexibility/facilitative provisions;
casual employment (AM2014/197) and part-time employment (AM2014/196);
public holidays; and
transitional/sunsetting provisions (AM2014/190).
[4] The part-time employment and casual employment common issues commenced with
an initial conference on 29 September 2014. This conference sought to identify the scope and
content of these common issues and also provided an opportunity for parties to nominate
additional common issues to be dealt with as part of the Review.
1 [2014] FWC 1790.
2 [2014] FWCFB 1788.
3 [2014] FWC 1790.
[2014] FWC 6904
STATEMENT
E AUSTRALIA FairWork Commission
https://www.fwc.gov.au/documents/decisionssigned/html/2014fwc1790.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2014fwcfb1788.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2014fwc1790.htm
[2014] FWC 6904
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Part-time employment and casual employment
[5] Parties at the conference provided a preliminary outline of issues that they may wish to
raise in the part-time employment and casual employment common issues. The issues
included:
part-time minimum engagement;
part-time rostering provisions and patterns of hours;
part-time overtime provisions;
casual minimum engagement;
casual conversion (including the requirement to notify eligible casual employees of
their right to elect to convert); and
restrictions on casual engagement.
[6] The Australian Council of Trade Unions (ACTU) and the Australian Industry Group
(Ai Group) advised that they would provide submissions detailing their proposed positions
and a list of the awards that are affected within six weeks. A timeline for the provision of
submissions is contained at Attachment A.
[7] The Commission encourages both the employer organisations and the employee
organisations to collaborate in order to present an agreed position on the scope and content of
this common issue and proposed directions for dealing with these issues. A member of the
Commission will be made available to facilitate any discussions upon request from the
parties.
Additional common issues
[8] 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. At the 29 September 2014 conference I confirmed that the identification of common
issues is an iterative process whereby additional matters may be identified to be dealt with a
‘common issues’ where they affect most or all modern awards and it would be as more
efficient use of time and resources to deal with these issues once, rather than on an award-by-
award basis.
[9] Australian Business Industrial and the New South Wales Business Chamber (together
ABI) in their correspondence dated 26 September 2014 seek the inclusion of a new Small
Business Schedule in modern awards. The schedule would contain provisions specifically
directed towards the needs of micro business employers, being employers who employ a total
of fewer than 5 employees. At the conference ABI stated that the inclusion of such a schedule
in approximately 108 of the 122 modern awards should be dealt with as a common issue
rather than being dealt with on an award by award basis.
[10] The proposal by ABI currently only outlines the key concepts for the schedule and the
Commission considers that if the proposal is to be dealt with as a common issue, it will
require a further period of consultation. A member of the Commission will be available to
assist with this process.
[11] In correspondence dated 11 June 2014 and 8 July 2014, The Association for Payroll
Specialists (TAPS) raised an issue regarding the motor vehicle allowance which appears in
https://www.fwc.gov.au/sites/awardsmodernfouryr/common/PCI-TAPS-110614.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/common/sub-smallbuss-ABI-260914.pdf
[2014] FWC 6904
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over 70 modern awards. It is submitted that the interaction between these rates and Australian
Tax Office rates may cause difficulty in payroll processing. A further issue regarding
difficulties in processing payroll based on monthly wages was raised in further
correspondence dated 28 September 2014. This correspondence outlined issues where an
award provides for payment of wages on a monthly basis but does not provide a method of
calculating monthly wages. Additionally some awards provide for payment in advance but do
not provide a mechanism for recovering overpayment when an employee leaves prior to the
completion of the month.
[12] At the conference of 29 September 2014, the ACTU identified the following as issues
that they will seek to include in the majority or all common awards:
a domestic violence clause that relates to leave; and
a family friendly work clause that supplements NES rights.
[13] The ACTU submitted that they would provide a draft that outlines the nature of these
proposals and a list of awards to which the claim applies within a month. They agreed with
the Commission proposal that if these matters are to be dealt with as common issues, they
should be dealt with together.
[14] The relevant parties will provide further detail of their proposed additional common
issues including a list of awards that may be affected in accordance with the timeline at
Attachment A.
Conclusion
[15] The Commission is seeking the views of interested persons on whether the proposals
in paragraphs 9 to 12 should be dealt with as common issues. All submissions should be sent
to amod@fwc.gov.au by 11 November 2014. All material will be published on the 4 yearly
review section of the Commission’s website. The Commission will consider the submissions
and then issue a draft statement outlining which issues are to be dealt with as ‘common
issues’ and also defining the scope of the part-time employment and casual employment
common issues.
[16] 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 A, PR556113
https://www.fwc.gov.au/about-us/reports-publications/subscribe-updates
https://www.fwc.gov.au/about-us/reports-publications/subscribe-updates
mailto:amod@fwc.gov.au
https://www.fwc.gov.au/sites/awardsmodernfouryr/common/monthly%20payment%20of%20wages-APS-280914.pdf
[2014] FWC 6904
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ATTACHMENT A
Timeline – additional common issues, part-time employment and casual employment
29 September 2014 Conference re additional common issues, part-time employment and
casual employment
Additional common issues
14 October 2014 Association of Payroll Specialists to submit draft wording for:
proposed vehicle allowance provision
proposed method of calculating monthly wages
proposed overpayment provision
The submission should also state which awards are affected.
28 October 2014 ACTU to submit:
proposed family violence provision
proposed family friendly work arrangements provision
The submission should also state which awards are affected.
11 November 2014 All interested persons to make submissions on whether the above
additional issues and the small business schedule proposed by ABI
should be dealt with as ‘common issues’. If parties support dealing
with an issue or issues as common issues, the submission should also
include an outline of how the matter should be dealt with and any
timeframes.
Part-time employment and casual employment
11 November 2014 Parties are to submit an outline of their proposed provisions in
relation to the casual employment and part-time employment
common issues including:
casual minimum engagement
casual conversion (including the requirement to notify)
restrictions on casual engagement
part-time minimum engagement
part-time rostering provisions and patterns of hours
part-time overtime provisions
Submissions should also state which awards are affected.
