STATEMENT

Fair Work Act 2009
s.156 - 4 yearly review of modern awards

4 yearly review of modern awards—Penalty rates
(AM2014/305 and others)

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 2014 1 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 2014 2 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:

* 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 This award has been replaced by the Amusement, Events and Recreation Award 2010.

[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:

[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.

[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 [email protected] 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

ATTACHMENT A—Draft timetable (in date order)

ATTACHMENT B—Draft timetable (by subject)

 1   [2014] FWC 1790.

 2   [2014] FWC 7742.

 3   [2014] FWC 8575.

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