STATEMENT

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

4 yearly review of modern awards – Fast Food Industry Award 2010
(AM2017/49)

Fast Food Industry Award 2010 – Award stage – substantive issues –Ai Group claims – jurisdictional objection.

[1] Under s.156 of the Fair Work Act 2009 (the Act) the Fair Work Commission (the Commission) is required 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,2 a Common issues stage and an Award stage.

[2] This Statement deals with an issue arising in the Award stage review of the Fast Food Industry Award 2010 (the Award).

[3] On 9 November 2017, Directions were issued inviting the Australian Industry Group (Ai Group) and the Shop, Distributive and Allied Employees Association (SDA) to file draft variation determinations each party proposed in relation to the Award, together with submissions and evidence in support.

[4] The Ai Group filed a submission on 21 December 2017 confirming that it would pursue 4 substantive claims in relation to the Award as follows:

•  The deletion of the current laundry allowance (see clause 19.2(b) of the Award). 3

A claim relating to the end time (6.00am) of the evening work penalty Monday to Friday (see clause 25.5(a)(i) of the Award).

•  The deletion to the reference to span of hours in the overtime provisions (see clause 25.5(b) of the Award); and

•  The deletion of the current part-time clause (see clause 12 of the Award) and the insertion of a new flexible part-time provision modelled on the clause proposed in the Part-time and Casual Decision [2017] FWCFB 3541.

[5] A conference was held on 1 December 2017 before Commissioner Lee (the 1 December conference). The transcript of that conference is available on the Commission’s website.

[6] At the 1 December conference the Ai Group confirmed 4 that it continued to press the claim to vary the end time for the evening penalty rate from 6 am to 5 am or to insert a facilitative provision to allow an employer to reach an agreement with the majority of employees to vary the end time of the evening penalty rate to 5 am.5

At the conference, the SDA outlined its objection to this Full Bench hearing the Ai Group’s claim on the basis that the matter had been fully heard and determined by the Penalty rates full bench. 6 The SDA confirmed its objection in writing in a letter to Commissioner Lee dated 13 December 2017 and asked the Commission to strike out the application.

[7] On 8 February 2018, we issued Directions inviting supplementary submissions concerning the SDA’s objection. In response to these directions, the Ai Group made a submission on 9 February 2018. The Ai Group submit that the proposed facilitative provision is supplementary to the Penalty rates decision and rely on the decision in Remington Products Australia Pty Limited v Energizer Australia Pty Limited 7 (Remington) in support of that submission. They submit that the court in Remington held that an order that stands “side by side” with an initial order is a supplementary order and that the proposed facilitative clause would stand “side by side” with the determination made by the Penalty rates full bench.

[8] The SDA responded in a submission dated 20 February 2018. The SDA submit that the effect of the proposed facilitative provision is to remove the loading that would otherwise apply to hours worked between 5 am and 6 am and that this would alter the determination made by the Penalty rates full bench. The SDA submit further that clause 25.5(a)(ii) is clear and unambiguous and that it is not necessary or desirable that a facilitative provision stand “side by side” with the clause. The SDA further submit that, if the claim is not struck out, it should be referred to the Penalty rates full bench which has already dealt with this matter.

[9] We reject the submission of the SDA in relation to the jurisdictional objection. The Ai Group’s claim in relation to clause 25.5(a)(i) will be heard in accordance with Part B –Merit Submissions of the Directions issued on 15 February 2018. Reasons for our decision will be published later.

PRESIDENT

 1   [2014] FWC 1790.

 2   [2014] FWCFB 1788.

 3   In correspondence dated 20 February 2018, the Ai Group confirmed that it would not be pursing the claim in relation to the laundry allowance.

 4   Transcript.

 5   Transcript at PN 389.

 6   Transcript PN118.

 7   (2008) 246 ALR 113.

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