[2019] FWCFB 1044
FAIR WORK COMMISSION

DECISION

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, 28 FEBRUARY 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] On 25 January 2019 we issued a Statement and Directions [2019] FWCFB 361 regarding the review of modern enterprise awards and State reference public sector modern awards following the commencement of the Fair Work Amendment (Repeal of 4 Yearly Reviews and Other Measures) Act 2018 (Cth) (Amending Act).

[2] The Amending Act repealed the provision for 4 yearly reviews of modern awards in the Fair Work Act 2009 (Cth) (Act) with effect from 1 January 2018.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 of the Amending Act, a review of an award that commenced but was not completed before 1 January 2018 can continue under the terms of the repealed provisions.

[3] The Statement concerned 33 identified enterprise and State reference public sector modern awards listed at Attachment A and whether or not reviews of those awards had commenced. We expressed the provisional view 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.’ 1

[4] We also noted that despite our provisional view the Commission was not precluded on its own motion considering whether to vary any of these awards in proceedings under Division 5 of Part 2-3 of the Act.

[5] Any parties who opposed the provisional view were invited to lodge a submission explaining their objection.

[6] The Commission received a submission from the Australian Public Service Commission (APSC). 2 The APSC acts on behalf of Australian Government employers with respect to the Australian Public Service Enterprise Agreement 2015 and the Australian Government Industry Award 2016.

[7] The APSC submitted that it agreed with the Full Bench’s provisional view that the transitional provisions of the Amending Act do not apply to the 33 modern awards. They also agreed with the Full Bench’s provisional views on the process to consider variations to these awards.

[8] No submissions opposing our provisional view have been filed.

[9] We confirm our provisional view in [2019] FWCFB 361 at [23] that none of the 33 identified awards can be further dealt with as part of the current 4 yearly review.

[10] The Commission is able on its own motion to consider whether to vary any of these awards in proceedings under Division 5 of Part 2-3 of the Act. We propose to hold a mention in the second half of 2019 to discuss the next steps in relation to the 33 identified awards.

PRESIDENT

ATTACHMENT A

Awards Concerned

 1   [2019] FWCFB 361 at [23]

 2   Australian Public Service Commission submission, 15 January 2019

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