1
Fair Work Act 2009
s.156 – 4 yearly review of modern awards
4 yearly review of modern awards
(AM2014/1)
JUSTICE ROSS, PRESIDENT
VICE PRESIDENT HATCHER
COMMISSIONER HUNT MELBOURNE, 25 JANUARY 2019
4 yearly review of modern awards—Fair Work Amendment (Repeal of 4 Yearly Reviews and
Other Measures) Act 2018—Australian Government Industry Award 2016, modern enterprise
awards and State reference public sector modern awards
[1] Schedule 1 to the Fair Work Amendment (Repeal of 4 Yearly Reviews and Other
Measures) Act 2018 (Cth) (Amending Act) repealed the provision for 4 yearly reviews of
modern awards in the Fair Work Act 2009 (Cth) (Act) with effect from 1 January 2018.
Under the application and transitional provisions, a review of an award that commenced but
was not completed before 1 January 2018 can continue under the terms of the repealed
provisions.
[2] On 13 December 2018 the Community and Public Sector Union (CPSU) wrote to the
President of the Fair Work Commission (Commission) requesting that the Commission clarify
whether reviews of certain modern awards in which the CPSU has an interest, have
commenced as part of the current 4 yearly review process and consequently can continue as
part of the 4 yearly review pursuant to the application and transitional provisions (CPSU’s
correspondence). The CPSU’s correspondence is at Attachment A.
[3] This Statement concerns the application of the 4 yearly review processes to the
Australian Government Industry Award 2016 (AGIA), modern enterprise awards and State
reference public sector modern awards, in consequence of the Amending Act.
The amendments and their application and transitional provisions
[4] The former Division 4 of Part 2-3 of the Act required the Commission to conduct
4 yearly reviews of all modern awards. The current 4 yearly review commenced with a
[2019] FWCFB 361
STATEMENT AND DIRECTIONS
E AUSTRALIA FairWork Commission
[2019] FWCFB 361
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conference on 5 February 2014.1 While many aspects of the review have been finalised, the
review is not yet completed.
[5] Schedule 1 to the Amending Act removed the provision for 4 yearly reviews from the
Act by repealing Division 4 of Part 2-3 and references to the reviews throughout the Act, and
making consequential amendments to Division 5 of Part 2-3.2 The Amending Act received
Royal Assent on 11 December 2018, but the amendments made by Schedule 1 commenced on
1 January 2018.3
[6] The repeal of Division 4 leaves Division 5 of Part 2-3 of the Act (retitled ‘Exercising
modern award powers’) as the ‘residual framework’ under which modern awards (other than
their default fund terms) may be made, varied or revoked. The Revised Explanatory
Memorandum states:
‘This framework allows changes to a modern award where emerging social and economic
matters demonstrate that change is necessary. For example, in exercising its modern award
functions, the FWC is required to take into account a range of criteria, such as the need to
promote social inclusion through increased workforce participation. This requires the FWC to
consider the changing labour market and the manner in which work is evolving. It must also
promote flexible modern work practices and the efficient and productive performance of work,
which again requires the FWC to look beyond the way work has been performed historically
and to make sure the safety net of terms and conditions continues to meet community
expectations.’4
[7] Schedule 1 to the Amending Act also amended ss.582 and 616 of the Act so as to
provide that determinations revoking or amending modern awards under Division 5 of Part 2-
3 generally must be made by a Full Bench of the Commission.
[8] A modern award must be made by a Full Bench (s.616(1)), but, prior to the
amendments, in some circumstances an award could be revoked or varied by a single Member
of the Commission under Division 5 of Part 2-3. The Amending Act inserted into the Act
new ss.616(3B)–(3D)5 as follows:
‘(3B) A determination that revokes a modern award under Division 5 of Part 2-3 must be
made by a Full Bench.
(3C) Subject to subsection (3D), a determination that varies a modern award under
Division 5 of Part 2-3 (other than a determination varying the default fund term of a modern
award under section 159A) must be made by a Full Bench.
(3D) The President may direct a single FWC Member to perform a function or exercise a
power:
1 See [2014] FWCFB 916
2 Amending Act Schedule 1 items 1–10, 12–13 and 17
3 Amending Act s.2
4 EM [7]
5 Amending Act Schedule 1 item 18. Consequential amendments are made to ss.157(1) and 582(4) by items 11, 15 and 16
https://www.fwc.gov.au/documents/decisionssigned/html/2014fwcfb916.htm
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(a) under section 159, 160 or 161 (varying a modern award); or
(b) in relation to any other variation under section 157 that the President
considers appropriate of:
(i) a modern award; or
(ii) if 2 or more modern awards relate to the same industry or
occupation—those awards.
Note: The President may give directions as to the manner in which the FWC is to perform
its functions or exercise its powers (see section 582).’
[9] According to the Revised Explanatory Memorandum, these changes reflect:
‘the fact that the residual framework under Division 5 of Part 2-3 of the Act will now be the
principal mechanism for the making, varying and revoking modern awards … In the absence
of the 4 yearly review mechanism, where reviews were conducted by a Full Bench, it is
appropriate for a Full Bench to consider such matters before making any determinations to
vary modern awards.’6
[10] Schedule 4 to the Amending Act inserted application and transitional provisions for
the amendments into the Act. Relevantly for present purposes, the application and
transitional provisions include the following:
‘Division 1—General
25 Definitions
In this Part:
4 yearly review of modern awards has the meaning given by this Act, as in force
immediately before the commencement of Schedule 1 to the amending Act …
amending Act means the Fair Work Amendment (Repeal of 4 Yearly Reviews and
Other Measures) Act 2018.
Schedule 1 commencement day means the day on which Schedule 1 to the amending
Act commences …
Division 2—Amendments made by Schedule 1 to the amending Act
26 Incomplete review of modern award
Scope
(1) This clause applies in relation to a review of a modern award conducted as part of a 4
yearly review of modern awards if:
6 EM [30]–[31]
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(a) the review of the modern award commenced before the Schedule 1
commencement day; and
(b) immediately before that day, the review of the modern award had not
been completed.
Saving
(2) Despite the repeal of:
(a) Division 4 of Part 2-3 (which deals with 4 yearly reviews of modern
awards); and
(b) paragraph 582(4)(a) (which deals with directions by the President);
and
(c) subsections 616(2) and (3) (which deal with the FWC’s functions etc.
that must be performed by a Full Bench);
by the amending Act, those provisions continue to apply, in relation to the review of
the modern award, as if those repeals had not happened.
(3) Despite the repeal of paragraph 582(4)(a) (which deals with directions by the
President) by the amending Act, a direction given by the President to an FWC
Member under that paragraph that was in force immediately before the Schedule 1
commencement day continues to have effect, in relation to the review of the modern
award, as if that repeal had not happened.
Common issues
(4) For the purposes of this clause, it is immaterial whether the review of the modern
award is conducted in relation to an issue that the modern award has in common with
another modern award.
27 Dismissing applications
(1) On or after the Schedule 1 commencement day, the FWC may dismiss an application
under section 158 to vary, revoke or make a modern award if the FWC is satisfied that
the specific matters in relation to which the application is made were dealt with, or are
being dealt with, in a 4 yearly review of modern awards.
Note: For another power of the FWC to dismiss applications under section 158, see
section 587.
(2) This clause does not limit when the FWC may dismiss an application under
section 158.
Sunset provision
(3) This clause ceases to have effect at the end of 2 years after the Schedule 1
commencement day.’7
7 Amending Act Schedule 4 item 1
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[11] In relation to these application and transitional provisions the Revised Explanatory
Memorandum states:
‘26 – Incomplete 4 yearly review of modern award
74. The 4 yearly review of modern awards mechanism in Division 4 of Part 2-3 will be
repealed from the start of 1 January 2018 by item 8 of Schedule 1 to the Bill. This will ensure
that the next phase of the 4 yearly review, currently scheduled to commence on
1 January 2018 will not commence.
75. New clause 26 provides a transitional provision in the event that the FWC has active
4 yearly review matters on foot as at the end of 31 December 2017 (i.e. matters that have
commenced but have not yet been concluded). This clause provides that Division 4 of Part 2-3
and necessary consequential provisions as in force at the repeal time (i.e. 1 January 2018) will
continue to apply in relation to matters commenced but not yet determined at that time.
76. The transitional provision extends to incomplete reviews of one or more modern
awards as part of the ‘common issues’ stage of the 4 yearly review of modern awards process.
The review of one or more modern awards commenced, but not concluded by the end of
31 December 2017, may continue until finalised.
27 – Dismissing applications
77. Under section 587 of the Act, the FWC has discretion to dismiss an application if it is
not made in accordance with the Act; is frivolous or vexatious; or has no reasonable prospects
of success.
78. New clause 27 inserts a limited transitional dismissal power in addition to the existing
section 587 mechanism. This new provision allows the FWC to dismiss modern award
applications under section 158, where it is satisfied that the specific matters in relation to
which the application was made, were or are being dealt with in the 4 yearly review. This
power will sunset two years after the commencement of Schedule 1.’8
The modern awards concerned
[12] The modern awards referred to in the CPSU correspondence are the AGIA and 12
modern enterprise awards listed in the attachment to the CPSU’s correspondence, including
the Australian Public Service Enterprise Award 2015 (APS Award).
[13] The CPSU correspondence notes that the AGIA, the APS Award and the other modern
enterprise awards in which it has an interest, were made by the Commission after the
commencement of the current 4 yearly review. The correspondence also notes that the AGIA
was included in the Family and Domestic Violence Leave common issue process in the
current 4 yearly review and was varied as a result of that process, but that none of the modern
enterprise awards in which it has an interest ‘have been explicitly included in the common
issue processes.’
8 EM [74]–[78]
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[14] In addition to the 13 modern awards referred to in the CPSU correspondence, all 12 of
the other modern enterprise awards and all 8 of the State reference public sector modern
awards that have been made to date, were also made after the commencement of the current
4 yearly review. The issue raised by the CPSU as to the application of the Amending Act’s
transitional provisions, applies to all 33 of these awards (the awards concerned).
[15] The 33 awards concerned are listed in Attachment B.
[16] The AGIA is the only one of the awards concerned to have been varied in the 4 yearly
review processes. On 27 July 2018 a Full Bench issued a determination varying the AGIA so
as to include the model term for unpaid leave to deal with family and domestic violence, with
effect from 1 August 2018.9
[17] Modern enterprise awards and State reference public sector modern awards were
referred to in the Statement regarding the timetable and procedure for the 4 yearly review
dated 13 August 201410 as follows:
‘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 …
[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 …
[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.’11
[18] The AGIA and review of modern enterprise awards and State reference public sector
modern awards were discussed in the Statement and Directions in respect of the Family and
Domestic Violence Leave common issue dated 3 August 201712 as follows:
‘ii) The Australian Government Industry Award 2016 and the review of modern
enterprise awards
[8] In correspondence dated 19 July 2017, the CPSU raised the question of whether the
Australian Government Industry Award 2016 would be included in the current proceedings,
given that it was made after the commencement of the claim …
9 PR609457 made further to the Full Bench decision [2018] FWCFB 3936 issued on 6 July 2018
10 [2014] FWCFB 5537
11 Ibid [16]–[18]
12 [2017] FWCFB 4047
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am20151-sub-actu-190717.pdf
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[11] We confirm that the Australian Government Industry Award will be considered as part
of the ACTU application and any outcome in this matter may apply to the award. Accordingly,
parties with an interest in that award are invited to make submissions in the proceedings.
[12] The inclusion of any model term(s) arising from this matter will also be considered
during the review of the remaining enterprise and State reference public sector modern
awards. The review of those instruments will occur after the current technical and drafting
processes for the Group 1 to 4 awards are substantially complete (see [2014] FWCFB 5537 at
[16]–[18]).’13
[19] The position in relation to the AGIA, modern enterprise awards and State reference
public sector modern awards as set out at [18] above, was reiterated in the Decision in respect
of the Family and Domestic Violence Leave common issue dated 26 March 2018.14
[20] The history above indicates the extent to which, to date, the awards concerned have
expressly been dealt with in the course of the current 4 yearly review.
The operation of the application and transitional provisions
[21] It appears that in the application and transitional provisions reproduced at [10] above,
the notion of ‘a review of a modern award’ is quite narrow. In particular, it appears from the
terms of cl.26(4) that the inclusion of an award in proceedings in relation to just one of the
various common issues dealt with in the 4 yearly review, would constitute such ‘a review of a
modern award’.
[22] It is clear from the history above that, for the purposes of the application and
transitional provisions, the review of the AGIA in relation to the Family and Domestic
Violence Leave common issue had commenced before 1 January 2018 and consequently
could be completed under the terms of the repealed provisions pursuant to cl.26(2). That
review was completed when the Full Bench issued the determination varying the AGIA to
include the model term on 27 July 2018.
[23] However, on the basis of the narrow reading of ‘a review of a modern award’ outlined
at [22] above, our provisional view is that, for the purposes of the application and transitional
provisions, no other reviews of the 33 awards concerned had commenced before 1 January
2018. It follows that none of the 33 awards concerned can be further dealt with as part of the
current 4 yearly review.
[24] While our provisional view is that none of the 33 awards concerned can be further
dealt with as part of the 4 yearly review, this does not preclude the Commission on its own
motion considering whether to vary any of these awards in proceedings under Division 5 of
Part 2-3 of the Act, or an interested person making an application for the Commission to do
so. In particular, a Full Bench of the Commission can, on its own initiative or on application
13 [2017] Ibid [8], [11] and [12]
14 [2018] FWCFB 1691 [274]
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under s.158 of the Act, consider whether to vary the awards concerned under s.157 so as to
include any of the model terms arising from the 4 yearly review common issues processes.
[25] Any interested party who opposes our provisional views should lodge a submission
explaining their objection in accordance with the directions below.
[26] If no opposing submissions are lodged, in due course we will confirm our provisional
views and the Commission will issue a timetable and directions for proceedings under
Division 5 of Part 2-3 of the Act in relation to the 33 awards concerned — that is, the AGIA,
the APS Award, the other modern enterprise awards and the State reference public sector
modern awards, as listed in Attachment B. We anticipate that such proceedings would
commence late in 2019.
[27] If any party opposes our provisional views, the matter will be called on for Mention in
due course.
DIRECTIONS
1. Any interested person who wishes to oppose the provisional views at [23] above, is to
lodge in the Commission written submissions explaining their objection on or before
4 pm on Friday 15 February 2019.
2. All submissions should be sent in a Word document to amod@fwc.gov.au.
3. Copies of any submissions lodged in response to these directions will be published on
the Commission’s website.
PRESIDENT
Printed by authority of the Commonwealth Government Printer
PR704035
mailto:amod@fwc.gov.au
9
ATTACHMENT A
Community & Public Sector Union CPSU 13 December 2018 The Honourable Justice lain Ross AO President Fair Work Commission Melbourne By email Cc: APSC Commissioner Your Honour, Repeal of 4 Yearly Reviews - Australian Government Industry Award 2016 and Modern Enterprise Awards We are writing in relation to the Full Bench regarding the Fair Work Amendment (Repeal of 4 Yearly Reviews and Other Measures) Act 2018 that has recently come into force. We understand that the legislation repeals the requirement for the Fair Work Commission (FWC) to conduct 4 yearly reviews of modern awards. The transitional provisions in the legislation provide a savings provision for situations in which the review of a modern award commenced but has not been completed before 1 January 2018. In these situations, the 4 yearly review requirements continue to apply to that review. The CPSU is seeking clarity about whether the Australian Government Industry Award 2016 (AGIA) and modern enterprise awards fall within the scope of this savings provision. The AGIA was made after the 4 yearly review started so has not been included in any of the Award stage reviews. However, the AGIA was included in the Family and Domestic Violence Leave common issue process and was varied as a result of the process. The CPSU has an interest in several modern enterprise awards which have also been made since the 4 yearly review started. The most notable of these modern enterprise awards are the Australian Public Service Enterprise Award 2015. A list of other modern enterprise awards which the union has an interest is attached (Attachment A). None of the modern enterprise awards that the CPSU Level 5,191-199 Thomas St, Haymarket NSW 2000 . Phone: 02 02 8204 6986 . Email: Lindsay.benfell@CPSU.ORG.AU
[2019] FWCFB 361
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have an interest in have been explicitly included in the common issue processes. It would be appreciated if the Commission could clarify whether, in its view, the reviews of the AGIA, and enterprise awards that the CPSU have an interest in, have commenced and will continue to be reviewed in accordance with the 4 yearly review process. Yours sincerely Aidan Nash CPSU Industrial Officer
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ATTACHMENT B
Awards Concerned
Telstra Award 2015 MA000123
Australian Public Service Enterprise Award 2015 MA000124
Nurses and Midwives (Victoria) State Reference
Public Sector Award 2015
MA000125
Printing Industry – Herald & Weekly Times –
Production Award 2015
MA000126
Chullora Printing Award 2015 MA000127
Queensland Newspapers Pty Ltd Printing (Murarrie)
Award 2015
MA000128
Northern Territory News Award 2015 MA000129
Metropolitan Newspapers (South Australia and
Tasmania) Printing Award 2015
MA000130
Nurses (ANMF - Victorian Local Government)
Award 2015
MA000131
Victorian Local Government Award 2015 MA000132
Optus Award 2015 MA000133
Victorian State Government Agencies Award 2015 MA000134
Victorian Public Service Award 2016 MA000135
Viterra Bulk Handling and Storage of Grains, Pulses
and Minerals Award 2015
MA000136
Australia Post Enterprise Award 2015 MA000137
GrainCorp Country Operations Award 2015 MA000138
Aboriginal Legal Rights Movement Award 2016 MA000139
Reserve Bank of Australia Award 2016 MA000140
Airservices Australia Enterprise Award 2016 MA000141
Australian Federal Police Enterprise Award 2016 MA000142
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Australian Bureau of Statistics (Interviewers)
Enterprise Award 2016
MA000143
Australian Nuclear Science and Technology
Organisation (ANSTO) Enterprise Award 2016
MA000144
Parliamentary Departments Staff Enterprise Award
2016
MA000145
Australian Capital Territory Public Sector Enterprise
Award 2016
MA000146
Australian Broadcasting Corporation Enterprise
Award 2016
MA000147
CSIRO Enterprise Award 2016 MA000148
Christmas Island Administration Enterprise Award
2016
MA000149
Victorian Local Government (Early Childhood
Education Employees) Award 2016
MA000150
Northern Territory Public Sector Enterprise Award
2016
MA000151
Victorian Government Schools - Early Childhood -
Award 2016
MA000152
Australian Government Industry Award 2016 MA000153
Victorian Government Schools Award 2016 MA000155
Note Printing Australia Award 2016 MA000156
