1
Fair Work Act 2009
s.156 - 4 yearly review of modern awards
4 yearly review of modern awards
(AM2014/196 and others)
JUSTICE ROSS, PRESIDENT SYDNEY, 1 DECEMBER 2014
4 yearly review of modern awards – common issues – casual employment and part-time
employment –– additional common issues.
Background
[1] Under s.156 of the Fair Work Act 2009 (the FW Act) the Fair Work Commission (the
Commission) is required to review all modern awards every four years, starting as soon as
practicable after each 4th anniversary of the commencement of Part 2-3 of the FW Act. Part
2-3 commenced on 1 January 2010 and the first review (the Review) is to start as soon as
practicable after 1 January 2014, and has commenced.
[2] 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 issues2, a Common issues stage and an Award stage. The Commission identified
a number of common issues to be dealt with as part of the Review:
Annual leave (AM2014/47)
Award flexibility/facilitative provisions (AM2014/300)
Public holidays (AM2014/301)
Transitional/sunsetting provisions (AM2014/190)
Part-time employment (AM2014/196) and casual employment (AM2014/197)
[3] 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.
[4] 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
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 Bench issuing determinations
varying particular modern awards or issuing statements of principle that may be considered
when reviewing individual modern awards.
[5] 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.
[2014] FWC 8583
STATEMENT
E AUSTRALIA FairWork Commission
https://www.fwc.gov.au/documents/decisionssigned/html/2014fwc1790.htmhttps:/www.fwc.gov.au/documents/decisionssigned/html/2014fwc1790.htm
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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 one or
more modern awards and those determinations taking effect before the completion of the
Review.
The Purpose of this Statement
[6] The purpose of this Statement is to identify whether issues that have been raised
recently by a number of parties will be dealt with as ‘common issues’ in the Review and to
outline the approach which will be adopted for dealing with issues related to casual and part-
time employment that have been raised across a number of modern awards.
[7] In a Statement issued on 1 October 2014 the Commission sought the views of
interested parties on whether various additional matters should be dealt with ‘common
issues’. These additional proposed common issues had been raised by various parties at the
conference on 29 September 2014. A copy of the transcript of the conference proceedings is
available on the Commission website. The proposed additional common issues were:
the small (micro) business schedule (proposed by Australian Business Industrial and
the NSW Business Chamber (ABI));
domestic violence leave (proposed by the Australian Council of Trade Unions
(ACTU));
family friendly work clause (proposed by the ACTU)
motor vehicle allowance (proposed by the Association for Payroll Specialists
(TAPS));
method of calculating monthly pay (proposed by TAPS); and
mechanisms for recovering overpayment (proposed by TAPS).
[8] Interested parties were also invited to submit an outline of the draft determinations
they propose in relation to the casual employment and part-time employment common issues.
Parties at the conference on 29 September 2014 provided a preliminary outline of issues that
they may raise in the casual employment and part-time employment common issues.
[9] All of the submissions received have been published on the 4 yearly review section of
the Commission’s website. The 1 October 2014 Statement noted that the Commission would
consider the submissions received and then issue a statement outlining which issues are to be
dealt with as ‘common issues’ and also defining the scope of the casual and part-time
employment common issues. This is the Statement referred to in the 1 October 2014
Statement.
Casual employment and part-time employment common issue
[10] The casual employment and part-time 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. The Statement issued on 1 October 20143 invited parties to
submit an outline of their proposed positions in relation to the matters raised at conference,
which included:
part-time minimum engagement;
part-time rostering provisions and patterns of hours;
https://www.fwc.gov.au/awards-and-agreements/modern-award-reviews/4-yearly-review/common-issues
https://www.fwc.gov.au/awards-and-agreements/modern-award-reviews/4-yearly-review/common-issues
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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.
[11] The ACTU and the Australian Industry Group (Ai Group) made submissions detailing
their proposed claims and positions in relation to the casual and part-time employment issues
across a number of awards.
[12] The ACTU is proposing model clauses dealing with the following issues:
Casual conversion - where a casual employee has the right to elect to have their
employment converted to full-time or part-time employment;
Casual conversion - where a casual employee is deemed to be employed on a
permanent full-time or part-time basis after a certain length of time unless electing to
remain employed as casual;
Minimum engagements; and
Other provisions relating to casual employees.4
[13] The ACTU seeks a model casual conversion clause and a four hour minimum
payment/engagement for casual and part-time employees covered by a number of awards. The
ACTU are also seeking to insert clauses into awards stating that employees are not to be
engaged and re-engaged to avoid award obligations; that employers shall give existing casuals
opportunities to increase working hours by agreement; and that upon engagement casual
employees must be informed by the employer about their classification level and rate of pay.
[14] Various employer organisations including ACCI and Ai Group have foreshadowed
their strong opposition to the ACTU’s claims. A number of submissions, particularly by
employer parties, also opposed these claims being dealt with as a ‘common issue’, largely on
the basis that the Commission should have regard to the circumstances in the particular
industry or sector covered by an award and not adopt a ‘one size fits all approach’. These
submissions are more appropriately directed at the merit of the claims advanced rather than
the process adopted for the hearing and determination of the claims.
[15] The ACTU claims are properly characterised as ‘common issues’ and will be referred
to a ‘stand alone’ Full Bench (the Casual and Part-time Employment Full Bench). The
characterisation of a claim as a common issue simply relates to the process adopted for
hearing and determining the claim, it does not involve any assumption that, if granted, the
variation would apply consistently across all or most modern awards. Interested parties who
oppose the ACTU’s claims on the basis of the particular circumstances pertaining to the
modern award in which they have an interest will have an opportunity to make such
submissions to the Casual and Part-time Employment Full Bench.
[16] In addition to the ACTU claims a number of employer parties have foreshadowed
claims in relation to the various aspects of casual and part-time employment. For example, Ai
Group are seeking changes to the casual and part-time employment provisions in some 25
particular awards for reasons relating to the industries concerned. The employer claims tend
to relate to awards of specific interest to the relevant organisation and do not seek a common
standard across all or most awards. On that basis it is contended that such claims do not have
[2014] FWC 8583
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the character of a ‘common issue’. I agree. But that still leaves the question of the most
appropriate way of dealing with these claims. ACCI advances the following submission in
respect of this matter:
“Some ACCI members may seek to address concerns relating to part-time and casual
provisions within particular awards and it seems such applications would likely only
address particular industry or occupational considerations. The form and incidence of
casual and part-time employment and matters such as rostering arrangements and
working patterns vary among industries and occupations and ACCI maintains these
circumstances favour individual treatment. The award stage may still provide the most
efficient way of dealing with such claims but if they are left as a part of the common
issues proceedings, they may warrant discrete treatment.”5
[17] The FW Act gives the Commission considerable latitude in relation to the process by
which the Review is to be conducted. The Commission must be constituted by a Full Bench to
conduct a Review and to make determinations and modern awards in a Review (see ss.616(1),
(2) and (3) of the FW Act). Section 582 provides that the President may give directions about
the conduct of a Review and the general provisions relating to the performance of the
Commission’s functions apply to the Review (see particularly ss.577 and 578).6
[18] Subsection 156(5) of the FW Act provides that in a Review each modern award must
be ‘reviewed in its own right’, however, this does not prevent the Commission reviewing two
or more modern awards at the same time. In National Retail Association v Fair Work
Commission7 the Full Court of the Federal Court considered the meaning of the expression
‘[t]he review must be such that each modern award is reviewed in its own right’, in Item 6
(2A) of Schedule 5 of the Fair Work (Transitional Provisions and Consequential
Amendments) Act 2009 (Cth) . The Full Court held that the review of a particular modern
award may be conducted through a number of different hearings in which different aspects of
the award are determined. The Full Court rejected the proposition that Item 6 (2A) required
that the review of each modern award is to be confined to a single holistic assessment of all of
its terms and said:
“... The purpose of the requirement to review a modern award “in its own right” is to
ensure that the review is conducted by reference to the particular terms and the
particular operation of each particular award rather than by a global assessment based
upon generally applicable considerations. In other words, the requirement is directed
to excluding extra-award considerations. It is not directed to the manner in which
intra-award considerations are to be dealt with.
That the review of each modern award must focus on the particular terms and the
particular operation of the particular award does not suggest that the review of that
award was intended to be confined to a single holistic assessment of all of its terms.
The conclusion that a modern award fails to comply with the modern awards objective
may be based upon a single offending provision. There is no reason in principle why
the FWC could not come to that conclusion without reviewing the entire award. Nor
can we discern any reason why the review of a modern award was intended to be
confined to a single holistic exercise. ...
... It should not be assumed that, in requiring the FWC to conduct the very substantial
task of reviewing all modern awards, Parliament intended to impose practical
[2014] FWC 8583
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constraints upon the manner in which that task was to be performed, unless such
constraints served a useful purpose. No such purpose is apparent to support the
constraint for which the NRA contends. Further, the very wide procedural discretion
conferred on the FWC, to which we referred at [18], suggests that Parliament intended
to confer upon the FWC a great deal of flexibility in the way the transitional review
was to be conducted.”8
[19] To ensure that the range of issues relating to casual and part-time employment are
dealt with efficiently and to minimise the risk of inconsistent decisions it is appropriate that
all matters pertaining to casual and part-time employment be dealt with by one Full Bench,
the Casual and Part-time Employment Full Bench. This means that the ACTU and employer
claims referred to in the submissions filed and matters which arise during the award stage,
will be referred to the Casual and Part-time Employment Full Bench. The referral of these
claims to that Full Bench simply relates to the process adopted for the hearing and
determination of these claims. In this context it is relevant to note the following observation
by the Full Bench in the Preliminary Jurisdictional Issues decision pertaining to the Review:
“Given the broadly expressed nature of the modern awards objective and the range of
considerations which the Commission must take into account there may be no one set
of provisions in a particular award which can be said to provide a fair and relevant
safety net of terms and conditions. Different combinations or permutations of
provisions may meet the modern awards objective.”9
[20] The presiding Member of the Casual and Part-time Employment Full Bench (Vice
President Hatcher) will list these matters for mention and programming in due course.
Additional common issues
[21] The 1 October 2014 Statement10 provided information relating to additional common
issues that may be dealt with as part of the Review. A number of parties have raised
additional claims to be dealt with as common matters, and these are set out above (at
paragraph [7].
(i) ABI/NSW Business Chamber claim: Small (Micro) Business Schedule
[22] ABI are seeking the inclusion of a new Small (Micro) Business Schedule in over 100
modern awards. The schedule is said to contain provisions specifically directed towards the
needs of micro business employers (i.e. employers who employ a total of fewer than 5
employees).
[23] It is apparent from the submissions filed that consultations in respect of the detail of
this claim and its application to particular modern awards have not yet been completed. The
small (micro) business schedule will be dealt with as a common issue but at this stage it is not
appropriate to make any directions for the hearing and determination of this claim, and there
were no submissions to the contrary. The principal proponent of this claim, ABI, will have
liberty to apply to have this matter brought on for mention and directions, once the
consultation process it is currently undertaking has concluded.
[2014] FWC 8583
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(ii) ACTU claims - Family and domestic violence clause that relates to leave and
family friendly work arrangements
[24] The ACTU seeks variations to all awards in respect of the issue of family and
domestic violence leave and the issue of family friendly work arrangements. The ACTU
submits that both matters should be dealt with as common issues. The United Firefighters
Union have also submitted similar claims as the ACTU, however directed at the Fire Fighting
Industry Award 2010 only.
[25] The ACTU proposes that the claim related to family and domestic violence should
include 10 days paid domestic violence leave and a right to request a change in working
arrangements in connection with their disclosure of domestic violence. The ACTU also
outline that the claim also includes incidental provisions to:
address evidentiary and notice requirements for an application for family and
domestic violence leave;
appoint a workplace contact for employees to whom applications for the leave and
requests for changes to working arrangements would be made (accessing such
measures would involve disclosure of domestic violence);
clarify the role and responsibilities of the contact person(s) to whom an employee
has disclosed domestic violence;
establish processes and procedures to ensure confidentiality for employees disclosing
domestic violence;
address any mandatory reporting and Privacy Act 1988 (Cth) requirements if
relevant;
ensure adequate training and support is provided for a contact person(s) who is likely
to have an employee disclose circumstances related to domestic violence to them;
and
refer to the protections afforded by the Ac to persons who exercise or propose to
exercise a workplace right.
[26] The ACTU propose that the claim related to family friendly work arrangements should
include the following elements:
requests for family friendly work arrangements during pregnancy or upon return to
work from parental or adoption leave;
a right to return to substantive position and work arrangements held prior to
returning to work from parental or adoption leave; and
additional elements including that employees may access their personal leave to
attend pregnancy, ante-natal and/or adoption related appointments.
[27] The ACTU do not have a fixed view as yet on how either claim should be expressed as
award terms.
[28] Some parties11 oppose these issues being dealt with as common issues and a number of
other parties submitted that they did not support the claims but agreed that they should be
dealt with as a common issue.12 ACCI and Ai Group submitted that they hold a fundamental
objection to both of these claims and suggest scheduling proceedings to deal with these
objections as threshold matters in 2015 prior to any hearing involving the substantive claims.
The Australian Federation of Employers and Industries supports ACCI’s submissions.
[2014] FWC 8583
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[29] The ACTU claims will be dealt with as a common issue. It is appropriate that any
preliminary/jurisdictional issues be dealt with before substantive merit proceedings
commence.
[30] The preliminary/jurisdictional issues will be heard in July 2015. The ACTU, ACCI
and Ai Group are directed to confer in relation to the proposed directions. Draft consent
directions, including a description of the preliminary/jurisdictional issues to be decided, are to
be submitted by no later than 4.00 pm on Monday 16 February 2015.
(iii) The Association of Payroll Specialists claims
[31] In correspondence dated 11 June, 8 July and 28 September 2014 TAPS raised three
issues which it contends should be dealt with as common issues:
(a) the motor vehicle allowance which appears in over 70 awards, it is submitted that the
interaction between these rates and Australian Tax Office rates may cause difficulty in
payroll processing;
(b) some awards provide for payment of wages on a monthly basis, but do not provide a
method of calculating monthly wages; and
(c) 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.
[32] The vast majority of the submissions filed opposed having the matters raised by TAPS
being dealt with as a common issue and submitted that these matters are more appropriately
dealt with during the award stage. I agree. These matters will be considered during the award
stage and will not be referred to a ‘stand alone’ Full Bench.
PRESIDENT
Printed by authority of the Commonwealth Government Printer
Price code C, PR558390
1 [2014] FWC 1790.
2 See the Full Bench decision dealing with the Preliminary Jurisdictional Issues pertaining to the Review [2014] FWC FB
1788.
https://www.fwc.gov.au/documents/decisionssigned/html/2014fwcfb1788.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2014fwcfb1788.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2014fwc1790.htm
[2014] FWC 8583
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3 [2014] FWC 6904.
4 ACTU submission, 11 November 2014, para 2.
5 ACCI Submission, 11 November 2014.
6 See generally 4 Yearly Review of Modern Awards: Preliminary Jurisdictional Issues [2014] FWCFB 1788.
7 [2014] FCAFC 118.
8 Ibid at [85]. [86] and [88].
9 [2014] FWCFB 1788 at [34].
10 [2014] FWC 6904.
11 Private Hospital Industry Employers’ Association, Australian Hotels Association, Live Performance Australia,
Horticultural Taskforce.
12 Restaurant and Catering Industrial, National Farmers Federation, ABI and NSW Business Chamber, HIA, Accommodation
Association of Australia.
https://www.fwc.gov.au/documents/decisionssigned/html/2014FWC6904.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2014fwcfb1788.htm
http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/FCAFC/2014/118.html?stem=0&synonyms=0&query=National%20retail%20association
https://www.fwc.gov.au/documents/decisionssigned/html/2014fwcfb1788.htm
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/common/AM2014196andors-sub-ACCI-111114.pdf
https://www.fwc.gov.au/documents/decisionssigned/html/2014FWC6904.htm
