1
Fair Work Act 2009
s.156 - 4 yearly review of modern awards
4 yearly review of modern awards—Penalty rates
(AM2014/305 and others)
JUSTICE ROSS, PRESIDENT SYDNEY, 17 DECEMBER 2014
4 yearly review of modern awards – penalty rates.
[1] Section 156 of the Fair Work Act 2009 (the Act) requires the Fair Work Commission
(the Commission) to review all modern awards every four years. In a Statement issued on
17 March 20141 the Commission stated that the first 4 yearly review of modern awards (the
Review) would comprise an Initial stage, dealing with jurisdictional issues, a Common issues
stage and an Award stage.
[2] The purpose of this statement is to provide further information about the scope and
scheduling of various proposals to vary the penalty rates in a number of modern awards under
review.
[3] As foreshadowed in the Statement issued on 30 October 20142 and confirmed in the
Statement issued on 28 November 20143, proposals to alter penalty rates in the following
awards will be dealt with by a specially constituted Full Bench:
Award Title Award Code Matter No. Group
Amusement, Events and Recreation Award 2010* MA000080 AM2014/256 4
Dry Cleaning and Laundry Industry Award 2010 MA000096 AM2014/264 4
Fast Food Industry Award 2010 MA000003 AM2014/267 4
General Retail Industry Award 2010 MA000004 AM2014/270 4
Hair and Beauty Industry Award 2010 MA000005 AM2014/271 4
Hospitality Industry (General) Award 2010 MA000009 AM2014/272 4
Pharmacy Industry Award 2010 MA000012 AM2014/209 2
Registered and Licensed Clubs Award 2010 MA000058 AM2014/283 4
Restaurant Industry Award 2010 MA000119 AM2014/284 4
* Note: In the Statement of 28 November 2014, the Racing Clubs Events Award 2010 was
included in the list of awards. This award has been replaced by the Amusement, Events and
Recreation Award 2010.
1 [2014] FWC 1790.
2 [2014] FWC 7742.
3 [2014] FWC 8575.
[2014] FWC 9175
STATEMENT
E AUSTRALIA FairWork Commission
https://www.fwc.gov.au/documents/decisionssigned/html/2014fwc8575.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2014fwc7742.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2014fwc1790.htm
https://www.fwc.gov.au/awards-and-agreements/modern-award-reviews/4-yearly-review/award-stage/award-review-documents/MA000119?m=AM2014/284
https://www.fwc.gov.au/documents/modern_awards/award/MA000119/default.htm
https://www.fwc.gov.au/awards-and-agreements/modern-award-reviews/4-yearly-review/award-stage/award-review-documents/MA000058?m=AM2014/283
https://www.fwc.gov.au/documents/modern_awards/award/MA000058/default.htm
https://www.fwc.gov.au/awards-and-agreements/modern-award-reviews/4-yearly-review/award-stage/award-review-documents/MA000012?m=AM2014/209
https://www.fwc.gov.au/documents/modern_awards/award/MA000012/default.htm
https://www.fwc.gov.au/awards-and-agreements/modern-award-reviews/4-yearly-review/award-stage/award-review-documents/MA000009?m=AM2014/272
https://www.fwc.gov.au/documents/modern_awards/award/MA000009/default.htm
https://www.fwc.gov.au/awards-and-agreements/modern-award-reviews/4-yearly-review/award-stage/award-review-documents/MA000005?m=AM2014/271
https://www.fwc.gov.au/documents/modern_awards/award/MA000005/default.htm
https://www.fwc.gov.au/awards-and-agreements/modern-award-reviews/4-yearly-review/award-stage/award-review-documents/MA000004?m=AM2014/270
https://www.fwc.gov.au/documents/modern_awards/award/MA000004/default.htm
https://www.fwc.gov.au/awards-and-agreements/modern-award-reviews/4-yearly-review/award-stage/award-review-documents/MA000003?m=AM2014/267
https://www.fwc.gov.au/documents/modern_awards/award/MA000003/default.htm
https://www.fwc.gov.au/awards-and-agreements/modern-award-reviews/4-yearly-review/award-stage/award-review-documents/MA000096?m=AM2014/264
https://www.fwc.gov.au/documents/modern_awards/award/MA000096/default.htm
https://www.fwc.gov.au/awards-and-agreements/modern-award-reviews/4-yearly-review/award-stage/award-review-documents/MA000080?m=AM2014/256
https://www.fwc.gov.au/documents/modern_awards/award/MA000080/default.htm
[2014] FWC 9175
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[4] Proposals to alter penalty rates in awards other than those listed above will be dealt
with on an award-by-award basis in the Award stage of the Review.
[5] A conference was held on Friday 12 December 2014 to deal with programming and
scheduling issues associated with the penalty rates claims in the awards listed above. Prior to
the conference, submissions and correspondence were received from various parties and
published on the Commission website. Based on this correspondence, the Commission
prepared a document for the parties attending the conference that outlined a number of
proposals for discussion.
[6] There was general agreement that the awards and issues should be dealt with jointly
but sequenced as follows:
1. Common evidence – evidence relevant to the consideration of claims in all awards
and industry sectors.
2. Hospitality group – includes the following awards:
Amusement, Events and Recreation Award 2010
Hospitality Industry (General) Award 2010
Registered and Licensed Clubs Award 2010
Restaurant Industry Award 2010
3. Retail group – includes the following awards:
Dry Cleaning and Laundry Industry Award 2010
Fast Food Industry Award 2010
General Retail Industry Award 2010
Hair and Beauty Industry Award 2010
Pharmacy Industry Award 2010
[7] At the 12 December 2014 conference there was general agreement that common
evidence should be heard first and separate to the evidence in relation to the Hospitality group
and the Retail group, followed by a submission process.
[8] It was also generally agreed that the hearing sequence would be as follows:
Common evidence—hearing Around 20 July 2015
Hospitality evidence—hearing Late August 2015
Retail evidence—hearing Late September 2015
[9] ‘Common evidence’ will be evidence that would be relevant to the consideration of
claims in all awards and industry sectors, and will generally be provided by an expert and may
include government reports, statistical or social commentary material. Award or industry-
specific evidence will be presented during the Hospitality and Retail group stages. Generally,
no provision will be made for written evidence in reply and the parties are to rely on oral
argument to test any evidence put. However, an expert witness may be permitted to submit
short written responses to any claims that subsequently challenge their evidence.
[2014] FWC 9175
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[10] It was also agreed that employer parties seeking to amend the penalty rates provisions
in any of the above awards would file joint draft variation determinations by 4.00 pm on 13
February 2015.
[11] In their preliminary submissions, parties had forecast they would be calling nearly 200
witnesses in total, over more than 100 hearing days. The employer groups and the unions
were directed to caucus in order to reduce duplication in the witness evidence and the time
taken to hear that evidence.
[12] Prior to the oral hearings witness statements will be assessed by the Full Bench, which
will deal with any objections. Witness statements must not contain submissions or opinion,
unless the evidence is provided by an expert qualified to provide opinion evidence. Material
that is considered to be inadmissible will be struck out.
Timetable
[13] Attachment A to this Statement sets out a draft timetable for these matters. Comments
in relation to the draft timetable can be made to amod@fwc.gov.au by 4.00 pm on Friday
13 February 2015.
[14] A further conference will be held on Friday 20 February 2015 to finalise the scope
and timetable for dealing with these issues, including an updated estimate of the number of
witnesses and the time required to hear their evidence. Formal directions and notices of listing
will be issued following the 20 February 2015 conference.
Public holidays
[15] Australian Business Industrial and the NSW Business Chamber asked whether the
issue of penalty rates applying on a public holiday will be dealt with in these proceedings or
as part of the Public holidays common issue. Further, Business SA raised the issue of penalty
rates on part-day public holidays. The part-day public holiday issue (including the penalty
rates payable on part-day public holidays) is currently being dealt with in AM2012/355 and
will be finalised during the Public holidays common issue under AM2014/301 as part of the
Review. Any other issues in relation to the penalty rate payable on a public holiday in the
awards referred to in paragraph [3] of this Statement will be dealt with during these
proceedings.
Penalty rates matter number – AM2014/305
[16] For administrative convenience, matter number AM2014/305 has been allocated to the
penalty rates issues in the abovenamed awards being dealt with jointly. All material in relation
to this matter will be published on a new Penalty rates page on the Commission’s website.
PRESIDENT
Printed by authority of the Commonwealth Government Printer
Price code A, PR559182
https://www.fwc.gov.au/awards-and-agreements/modern-award-reviews/4-yearly-review/award-stage/penalty-rates
https://www.fwc.gov.au/awards-and-agreements/modern-award-reviews/4-yearly-review/common-issues/am2014301-public-holidays
https://www.fwc.gov.au/awards-and-agreements/awards/award-modernisation/variation-applications/AM2012/355
mailto:amod@fwc.gov.au
[2014] FWC 9175
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ATTACHMENT A—Draft timetable (in date order)
Common evidence Hospitality Retail
13 February 2015 Closing date for comments on draft timetable
13 February 2015 Employer parties to lodge draft determination(s)
Comments in relation to this draft timetable to be lodged
13 February 2015 Common evidence - List of expert witnesses to be called
(including their qualifications) and the nature of their evidence—
employer parties
20 February 2015 Conference
6 March 2015 Common evidence—Closing date for outline of submissions and
the findings employer parties would seek the Commission to
make on the common evidence to be filed
10 April 2015 Common evidence—List of expert witnesses to be called
(including their qualifications) and the nature of their evidence in
response to employer evidence—union parties
1 May 2015 Common evidence—Closing date for filing expert & other
common evidence—employer parties
26 June 2015 Common evidence—Closing date for filing expert & other
common evidence —union parties
29 June 2015 Hospitality evidence—Closing date for filing evidence—
employer parties
10 July 2015 Common evidence—Closing date for reply evidence from
employer experts
20–24 July 2015 Common evidence—Evidentiary hearing
10 August 2015 Hospitality evidence—Closing date for filing evidence—union
parties
10 August 2015 Retail evidence—Closing date for filing evidence—employer
parties
18–28 August 2015 Hospitality—Evidentiary hearing
21 September 2015 Retail evidence—Closing date for filing evidence —union
parties
27 September–
9 October 2015
Retail—Evidentiary hearing
14 October 2015 Hospitality—Closing date for filing final submissions—
employer parties
4 November 2015 Retail—Closing date for filing final submissions—employer
parties
25 November 2015 Hospitality—Closing date for filing final submissions—union
parties
2 December 2015 Hospitality—Closing date for filing submissions in reply—
employer parties
2 December 2015 Retail—Closing date for filing final submissions—union parties
9 December 2015 Retail—Closing date for filing submissions in reply—employer
parties
14–18 December 2015 Hospitality & Retail—Final hearings
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ATTACHMENT B—Draft timetable (by subject)
Common
13 Feb 2015 Employer parties to lodge draft
determination(s)
13 Feb 2015 List of expert witnesses to be called
(including their qualifications) and the
nature of their evidence—employer
parties
20 Feb 2015 Conference
6 Mar 2015 Common evidence—Closing date for
outline of submissions and the findings
employer parties would seek the
Commission to make on the common
evidence to be filed
10 April 2015 Common evidence—List of expert
witnesses to be called (including their
qualifications) and the nature of their
evidence in response to employer
evidence—union parties
1 May 2015 Common evidence—Closing date for
filing expert & other common
evidence—employer parties
26 June 2015 Common evidence—Closing date for
filing expert & other common evidence
—union parties
10 July 2015 Common evidence—Closing date for
reply evidence from employer experts
20–24 July
2015
Common evidence—Evidentiary hearing
Hospitality
29 June 2015 Hospitality evidence—Closing date for
filing evidence—employer parties
10 August
2015
Hospitality evidence—Closing date for
filing evidence—union parties
18–29 August
2015
Hospitality—Evidentiary hearing
14 Oct 2015 Hospitality—File final submissions—
employer parties
25 Nov 2015 Hospitality—File final submissions—
union parties
2 Dec 2015 Hospitality—File submissions in
reply—employer parties
14–18 Dec
2015
Hospitality & Retail—Final hearings
Retail
10 August
2015
Retail evidence—Closing date for
filing evidence—employer parties
21 Sept 2015 Retail evidence—Closing date for
filing evidence —union parties
27 Sept–9 Oct
2015
Retail—Evidentiary hearing
4 Nov 2015 Retail —File final submissions—
employer parties
2 Dec 2015 Retail —File final submissions—union
parties
9 Dec 2015 Retail —File submissions in reply—
employer parties
14–18 Dec
2015
Hospitality & Retail—Final hearings
