[2021] FWCFB 5366

The attached document replaces the document previously issued with the above code on 31 August 2021.

Medium neutral citation at footnote 1 corrected.

Associate to Vice President Hatcher.

23 September 2021.

Fair Work Amendment (Supporting Australia's Jobs and Economic Recovery) Act 2021
cl.48, Schedule 1 of the Fair Work Act 2009

Casual terms award review 2021
(AM2021/54)

Fair Work Amendment (Supporting Australia’s Jobs and Economic Recovery) Act 2021 – casual amendments – review of modern awards – Stage 2, Group 2 awards – provisional views confirmed.

[1] On 27 March 2021 the Fair Work Act 2009 (Cth) (Act) was amended by Schedule 1 to the Fair Work Amendment (Supporting Australia’s Jobs and Economic Recovery) Act 2021 (Cth) (Amending Act). The amendments included introducing a definition of ‘casual employee’ in s.15A of the Act and casual conversion arrangements in Division 4A of Part 2-2 of the Act.

[2] The Amending Act inserted additional application, savings and transitional provisions into Schedule 1 of the Act. The newly inserted cl.48 of Schedule 1 to the Act requires the Fair Work Commission (Commission) to conduct a review (Casual Terms Review or Review) and vary modern awards where necessary to remove inconsistencies, difficulties or uncertainties caused by the amendments to the Act.

[3] The Casual Terms Review is being conducted in 2 stages. As part of Stage 1, a five-member Full Bench issued a decision 1 (July 2021 decision) that considered the nature and scope of the Review and reviewed ‘relevant terms’ (as defined in cl.48) in an initial group of six modern awards.

[4] This Full Bench has been constituted to review the remaining modern awards which have been divided into 4 groups as part of Stage 2 of the Review. The groups are set out at Attachment A to our statement 2 of 3 August 2021.

[5] In a statement issued on 11 August 2021 3 (August 2021 statement), taking into account the reasoning and conclusions in the July 2021 decision, we expressed provisional views in respect of each of the Group 2 awards in Stage 2 of the Review. Interested parties were directed to provide any responses in relation to our provisional views by 18 August 2021.

[6] Interested parties were further asked to provide submissions by 18 August 2021 in relation to the casual conversion issues identified at [40] and [50] of the August 2021 statement concerning the Horse and Greyhound Training Award 2020 (Horse and Greyhound Award) and the Textile, Clothing, Footwear and Associated Industries Award 2020 (Textile Award), respectively, about which we have not expressed provisional views.

[7] The Commission received 17 submissions from parties in response to the August 2021 statement. In the submissions, our provisional views regarding the following clauses were opposed:

•  Alpine Resorts Award 2020; 4 cl. 20.3.

•  Cement, Lime and Quarrying Award 2020; 5 cl. 11.5.

•  Cleaning Services Award 2020; 6 cl. 11.2.

•  Concrete Products Award 2020; 7 cl. 11.5.

•  Graphic Arts, Printing and Publishing Award 2020; 8 cl. 11.6.

•  Textile Award; 9 cl. 11.1.

•  Vehicle Repair, Services and Retail Award 2020; 10 cl. 11.6.

[8] Additionally, the Australian Workers’ Union, the Australian Industry Group and the Construction, Forestry, Maritime, Mining & Energy Union (Manufacturing Division) filed submissions in relation to the casual conversion issues identified in the Horse and Greyhound Award 11 or the Textile Award12.

[9] It should be noted that the August 2021 statement initially contained a formatting error in the tables at Attachment A, which inadvertently inserted bullets into the tables and removed some text when converted for publishing to the Commission website. The error has since been corrected. The submissions made in relation to the formatting error have not been included in the list above.

[10] While the Commission received submissions in relation to some clauses in the 8 awards listed above, the remainder of our provisional views in relation to these 8 awards were not contested. We confirm the uncontested provisional views in the abovementioned awards.

[11] A directions hearing was listed for Monday, 23 August 2021 to consider the contested award clauses in [7] to this decision as well as the casual conversion issues identified in the Horse and Greyhound Award   and the Textile Award. 13 Further directions were issued in relation to the contested awards in Group 2.14

[12] We confirm the provisional views expressed relating to the remaining 37 Group 2 awards, which were not contested and contain no outstanding issues. This includes that the Maritime Offshore Oil and Gas Award 2020 does not contain any relevant terms and will not require any variation. These awards are listed at Attachment A to this decision.

[13] In each case where a variation to the award is required, we are satisfied that the variation is necessary to achieve the modern awards objective in s.134(1) of the Act.

Additional amendments

[14] In the July 2021 decision the Full Bench determined that definitions of ‘regular and systematic casual employee’ are relevant terms and proposed to update such terms in the Stage 1 priority awards. Consistent with this approach, in the August 2021 statement we proposed to delete the term ‘regular and systematic casual employee’ where it appears in the relevant Stage 2 Group 2 awards and insert the term ‘regular casual employee’.

[15] It has been identified that the Black Coal Mining Industry Award 2010 (Black Coal Award) and the Alpine Resorts Award 2020 (Alpine Award) both use the term ‘regular and systematic casual employee’. Specifically, clause A.6.8(d) of the Black Coal Award includes a reference to ‘regular and systematic casual employment’. Clause 18.6(c)(ii) of the Alpine Award includes a reference to ‘regular and systematic casual basis’. These provisions were not dealt with in the August 2021 statement.

[16] The following amendments are proposed to incorporate the term ‘regular casual employee’ into clause A.6.8(d) of the Black Coal Award:

“(d) Clause A.6.8(c) only applies where the employee, immediately prior to entering into a training contract as an adult apprentice has been an employee in the enterprise for a minimum of 6 months full-time employment as a full time employee or twelve months as a part time or regular casual employee part-time or regular and systematic casual employment.”

[17] A definition of regular casual employee will be inserted in clause 2—Definitions as follows:

“regular casual employee has the meaning given in section 12 of the Act”

[18] The following amendments are proposed to incorporate the term ‘regular casual employee’ into clause 18.6(c) of the Alpine Award:

“(c) An adult apprentice must not suffer a reduction in their minimum wage under this award because they have entered into a training agreement if they were employed by the employer at that enterprise immediately before entering into a training agreement, either:

(i) on as a full-time basis employee for at least 6 months; or

(ii) on as a part-time or regular casual employee regular and systematic casual basis for at least 12 months.”

[19] A definition of regular casual employee will be inserted in clause 2—Definitions as follows:

“regular casual employee has the meaning given in section 12 of the Act”

[20] Draft determinations varying the 36 remaining Group 2 awards in accordance with our confirmed views will be issued with this decision. The additional amendments proposed to the Black Coal Award are included in the determination for that award. Interested parties are to provide any comment on the draft determinations by 5PM (AEST) MONDAY, 6 SEPTEMBER 2021.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR733319>

ATTACHMENT A

 1   [2021] FWCFB 4144.

 2   [2021] FWCFB 4714.

 3   [2021] FWCFB 4928.

 4   Shop Distributive and Allied Employees’ Association (SDA) submission, 18 August 2021 at paras 2-7.

 5   The Australian Workers’ Union (AWU) submission, 18 August 2021 at paras 7-12.

 6   Australian Industry Group (Ai Group) submission, 19 August 2021 at paras 12-29.

 7   AWU submission, 18 August 2021 at paras 7-12.

 8   Australian Manufacturing Workers’ Union (AMWU) submission, 18 August 2021 at paras 15-42.

 9   Ai Group submission, 19 August 2021 at paras 56-72.

 10   SDA submission, 18 August 2021 at para 16; AMWU submission, 18 August 2021 at paras 16-42.

 11   AWU submission, 18 August 2021 at paras 13-16.

 12   Ai Group submission, 19 August 2021 at paras 74-81; Construction, Forestry, Maritime, Mining & Energy Union submission, 19 August 2021 at paras 26-31.

 13   Notice of listing, 19 August 2021.

 14   Directions, 24 August 2021.