Fair Work Act 2009
s.156 - 4 yearly review of modern awards
4 yearly review of modern awards – Penalty rates
(AM2014/305)
JUSTICE ROSS, PRESIDENT
VICE PRESIDENT CATANZARITI
DEPUTY PRESIDENT ASBURY
COMMISSIONER HAMPTON
COMMISSIONER LEE MELBOURNE, 18 APRIL 2017
4 yearly review of modern awards – penalty rates – change in terminology.
[1] The Australian Hotels Association and the Accommodation Association of Australia
(AHA and AAA) seek the removal of the reference to ‘penalty’ and ‘penalty rates’ in
clause 32 of the Hospitality Industry Award 2010 (the Hospitality Award) and the insertion of
references to ‘additional remuneration’. A similar variation is proposed by the Pharmacy
Guild of Australia (PGA) in respect of the Pharmacy Industry Award 2010 (the Pharmacy
Award).
[2] On 23 February 2017, we issued a decision in the penalty rates matter (the Decision).1
As part of the Decision, we noted that further submissions would be invited from interested
parties about the proposal to change terminology in the Hospitality Award and the Pharmacy
Award.
[3] The changes proposed appear to be sought on the basis that s.134(1)(da)(iii) of the FW
Act speaks of ‘the need to provide additional remuneration for … employees working on
weekends’. The changes proposed may also be said to be consistent with the contemporary
purpose of ‘penalty rates’. As we mentioned in Chapter 3 of the Decision, the purpose of such
rates is not to penalise employers for rostering employees to work at such times, it is to
compensate employees for the disutility of working on weekends.
[4] The submissions received to date in respect of the proposed change in terminology are
very limited, and as noted in the Decision, the change in terminology proposed is only
advanced in respect of 2 modern awards. If changes of the type proposed were to be made
then, prima facie, they should be made in all modern awards which currently provide for
‘penalty rates’ (see generally [901]–[906]). It follows that this issue affects a large number of
modern awards.
[5] Directions setting out a timetable for submissions are attached to this Statement.
1 [2017] FWCFB 1001
[2017] FWCFB 1933
STATEMENT AND
DIRECTIONS
E AUSTRALIA FairWork Commission
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/2017fwcfb1001.pdf
[2017] FWCFB 1933
[6] We intend to deal with this matter on the papers unless any party seeks a hearing.
PRESIDENT
Printed by authority of the Commonwealth Government Printer
Price code A, PR591624
[2017] FWCFB 1933
Fair Work Act 2009
s.156 - 4 yearly review of modern awards
4 yearly review of modern awards—Penalty rates
(AM2014/305)
JUSTICE ROSS, PRESIDENT MELBOURNE, 18 APRIL 2017
4 yearly review of modern awards - penalty rates – change in terminology.
Further to the Statement issued on 18 April 2017:2
1. On or before 8 May April 2017 interested parties are to file written submissions and
any evidence in support of the proposed change in terminology and are to identify the modern
awards in respect of which the change is sought.
2. On or before 8 May 2017 interested parties are to file written submissions and any
evidence in opposing any proposed change in terminology.
3. On or before 22 May 2017 interested parties are to file any written submissions and
evidence in reply.
4. The Full Bench intends to determine this matter on the papers unless an interested
party indicates that it seeks a hearing. Such a request should be submitted in writing by
8 May 2017.
5. All material should be sent to amod@fwc.gov.au.
6. Liberty to apply.
PRESIDENT
Printed by authority of the Commonwealth Government Printer
2 [2017] FWCFB 1933
DIRECTIONS
mailto:amod@fwc.gov.au
