[2013] FWC 5736

Download Word Document



Fair Work (Transitional Provisions and Consequential Amendments) Act 2009

Sch 5, Item 6 - Review of all modern awards (other than modern enterprise and State PS awards) after first 2 years

Luxury Lodges of Australia Ltd and others
(AM2012/22; AM2012/97; AM2012/189; AM2012/204; AM2012/215; AM2012/254)

Hospitality industry



Applications to vary the Hospitality Industry (General) Award 2010 - 2 yearly review of Modern Awards - review proceeds largely by consent - technical and clarification changes - substantive changes reserved until 4 yearly Award review - changes to part time employment rejected - determination made.

[1] This decision concerns various applications filed by the Australian Hotels Association (‘AHA’), Accommodation Association of Australia (‘AAA’), the Confederation of A.C.T. Industry t/as ACT & Region Chamber of Commerce (the ‘Chamber’), Luxury Lodges of Australia Ltd (‘Luxury Lodges’) and the Australian Services Union (‘ASU’) to vary the Hospitality Industry (General) Award 2010 (the ‘Award’). The applications were made pursuant to Schedule 5, Item 6 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the ‘Transitional Act’) as part of the review of all modern awards which the Fair Work Commission (the ‘Commission’) is statutorily required to conduct after the first two years of all modern awards coming into effect (the ‘2012 Review’). The respondent to all the applications is United Voice (the ‘Union’).

[2] All of the applications were filed in March 2012 and certain aspects of them (notably in respect to penalty rates) were referred to a Full Bench of the Commission. The residual matters and some outstanding aspects of the Full Bench’s decision in the Modern Award Review 2012 - Penalty Rates [2013] FWCFB 1635 were reallocated to me in March 2013 determination. The Full Bench said at para [239]:

[3] During the first few months of 2013, the Commission chaired a number of conferences with the parties and the parties engaged independently in detailed discussion in order to narrow the issues for determination by the Commission. Ultimately, certain of the applications were withdrawn and others were wholly or partially agreed by the Union or withdrawn on the basis that the issues would be revisited in the four yearly review of modern awards in 2014.

[4] On 20 April 2013, I issued directions for the filing and service of written submissions and any evidence to be relied upon in respects to all outstanding matters. However, when the applications were listed for hearing on 12 June 2013 a broadly consensual position was put between the Union and the AHA was proposed for approval by the Commission.

[5] However, at ‘the heel of the hunt’, Business SA (intervening) proposed alternative amendments to the Request for Unpaid Meal Break Clause (cl 31). The Chamber also proposed changes to this clause. I shall deal with these submissions later in this decision.

Relevant statutory context

[6] Schedule 5, Item 6 of the Transitional Act provides:

[7] Provisions of the Fair Work Act 2009 (the Act) are also applicable and relevant to the 2012 Review. Sections 134 and 138 provide as follows:

The 2012 Award Review

[8] In June 2012, a Full Bench of the Commission handed down a decision in relation to the 2012 Review; See: Modern Awards Review 2012 [2012] FWAFB 5600. At paragraph 63 the Bench said:

[9] The Bench also said:

[10] In relation to the application of s 138 of the Act to the 2012 Review, the Full Bench said:

[11] In a further statement the President indicated that:

The hearing

[12] The applications were listed for hearing on 12 June 2012. Mr N Swancott, appeared for the Union; Mr J Sweetman with Mr Evans appeared for the AHA and Mr H Wallgren appeared for Business SA. I note that the ASU had earlier advised the Commission that it did not intend to press its application (AM2012/97). Accordingly, that matter is discontinued. I also record that Luxury Lodges was represented by the AHA in respect to its application AM2012/22. The Commission also dismissed an application filed by Recruitment & Consulting Services Association (AM2012/63) for want of prosecution. Despite being notified of all proceedings, that entity had not appeared at any of the listings had not complied with the directions of the Commission.

[13] Mr Swancott advised that a number of matters in the AHA application AM2012/215 had been agreed with the Union and had been incorporated in a marked up version of the Award, which he tendered in the proceeding. He said that these revisions of the Award clarify the meaning and intent of the parties as to how a particular clause operates and there were no substantive alterations to any of the terms and conditions of the Award. A summary of the changes is as follows:

[14] Mr Swancott said the only outstanding issue for the AHA was the part time employment provisions. He provided detailed submissions opposing the AHA’s and the Chamber’s positions. In summary, the Union believed there was insufficient evidence to justify the changes sought and that the proposals did not satisfy the test set by the Full Bench of the Commission in the 2012 Award Review decision. He also submitted that the AHA proposal would have the effect of limiting flexibility rather than enhancing it.

[15] Mr Evans for the AHA agreed with the changes to the Award identified by Mr Swancott in his submissions. Mr Evans reminded the Commission that the AHA’s application was in two sections - significant changes and correctional changes. Mr Evans said that the AHA was keen to pursue issues of the practical application of the part time provisions, such as allocation of overtime and changing hours for part time employees. The AHA had modified its earlier position and, despite detailed discussions with the Union, was unable to reach agreement.

[16] Mr Evans advised that the AHA had now decided not to press its application in this respect. Nevertheless, he put the Union and Commission on notice that these issues would be pursued in the four yearly review of Awards in 2014.

[17] Mr Evans indicated that the AHA was very pleased with the agreed changes on meal breaks which now meant that a meal break was not mandatory for a casual or part time shift up to six hours. This change recognised that not all part time workers want a meal break after five hours, but it will still apply if they do. Mr Evans put that all of the other changes outlined by Mr Swancott were agreed to by the AHA. He proposed that the Commission issue a determination based on the consolidated document tendered by the parties, He added that Luxury Lodges supported the AHA’s submissions.

[18] Mr Wallgren for Business SA, supported the technical variations proposed by the Union and AHA. However, he proposed a further simplification of cl 31 dealing with meal breaks. When Mr Swancott said the further change was unnecessary, Mr Wallgren agreed not to press it. However, later that day, Mr Wallgren, in correspondence to the Commission, proposed further simplification of cl 31.

[19] In a written submission, the Chamber claimed that variations should be made to the part time employment clause, particularly in relation to employment flexibility, documentation requirements and the ability for a part time employee to perform additional hours. It was argued that the changes sought were consistent with achieving the Modern Award objective and would ensure the Award operated effectively without anomalies or technical problems arising from the Part 10A Award Modernisation process.

[20] The submission relied on the comments of Watson VP in National Retail Association Ltd; Master Grocers Australia Limited; Australian Retailers Association; Jim Whittaker [2010] FWA 5068, in which His Honour correctly identified the difference between variations outside the Award Review process and variations sought through the Review. The Review should approach proposed variations on a merits basis, without the significant hurdles applying to variations outside the review process. The submission proposed the following:

[21] The grounds for the changes were said to be:

[22] In my view, the application of the Chamber should be dismissed. I make this finding for the following reasons:



There was no evidentiary foundation, let alone any persuasive evidence, which would justify the application being granted. I note that when the Chamber filed the application on 8 March 2012, it said: ‘Upon listing of this application by FWA, ACTCCI will file relevant witness statements and further particulars in support of the application.’ Despite my earlier directions, no witness statements were filed by the Chamber. Moreover, at no time during the various conferences with the parties was the Commission informed by the Chamber that it intended to rely on witness evidence in pressing its application.



The overwhelming consent position reached by the major parties to the Award, namely the AHA and the Union, is an important and relevant consideration as to whether the 2012 Review of this Award has satisfied the Modern Award objective. I note the parties have reserved their rights to pursue more substantive variations to the Award in the 2014 Award Review.



The timing, consideration and determination of these applications has been carefully and cautiously pursued by the parties resulting in the 2012 Review being completed in less than six months before the next review is to commence. I do not consider the Chamber’s position will be prejudiced by the short intervening period before the 2014 Award Review.



The Full Bench in its decision the 2012 Review Case said at paras [89] and [99]:


[89] In circumstances where a party seeks a variation to a modern award in the Review and the substance of the variation sought has already been dealt with by the Tribunal in the Part 10A process, the applicant will have to show that there are cogent reasons for departing from the previous Full Bench decision, such as a significant change in circumstances, which warrant a different outcome.


[99] To summarise, we reject the proposition that the Review involves a fresh assessment of modern awards unencumbered by previous Tribunal authority. It seems to us that the Review is intended to be narrower in scope than the 4 yearly reviews provided in s.156 of the FW Act. In the context of this Review the Tribunal is unlikely to revisit issues considered as part of the Part 10A award modernisation process unless there are cogent reasons for doing so, such as a significant change in circumstances which warrants a different outcome. Having said that we do not propose to adopt a “high threshold” for the making of variation determinations in the Review, as proposed by the Australian Government and others.’


I am not satisfied that the Chamber has established cogent reasons, such as a significant change in circumstances, to justify the changes it seeks to the part time provisions of the Award. I note Mr Evans’ warm embrace for the amendments agreed to by the Union to the meal breaks provision as it applies to part time employees.



Since 2009, conditions relating to part time employment have been a major topic of contest in this Award and other Awards during the Award Modernisation process; The Full Bench of the Commission has been reluctant, in other proceedings, to endorse proposals similar to those advanced by the Chamber in this case. One cannot ignore this line of recent authority. I decline to do so.

[23] Finally, in respect to the further submission concerning simplification of cl 31 proposed by Business SA after the hearing on 12 June 2013, I do not consider that the joint proposal of the AHA and the Union in respect to cl 31 is unclear or unambiguous. Accordingly, I am not persuaded that the further suggestions of Business SA are necessary at this time.

[24] The Commission congratulates the parties for the time and effort which has been put into the 2012 Award Review process for this Award which has largely resulted in a consent position being reached. I shall publish a determination which will give effect to the changes contained within the consolidated Award document tendered in the proceeding. The changes therein shall apply, on and from, today’s date.



J Sweetman and T Evans of the Australian Hotels Association

H Wallgren and S West of Business SA

D Baramili, Solicitor, for Accommodation Association of Australia

L Izzo, Solicitor, for Australian Business Industrial and Restaurant and Catering Victoria

N Swancott with C Acev of United Voice

Hearing details:



31 January, 12 March, 26 April, 12 June

Printed by authority of the Commonwealth Government Printer

<Price code C, MA000009  PR540248 >