| [2014] FWC 8583 |
| FAIR WORK COMMISSION |
STATEMENT |
Fair Work Act 2009
s.156 - 4 yearly review of modern awards
4 yearly review of modern awards
(AM2014/196 and others)
JUSTICE ROSS, PRESIDENT |
SYDNEY, 1 DECEMBER 2014 |
4 yearly review of modern awards – common issues – casual employment and part-time employment –– additional common issues.
Background
[1] Under s.156 of the Fair Work Act 2009 (the FW Act) the Fair Work Commission (the Commission) is required to review all modern awards every four years, starting as soon as practicable after each 4th anniversary of the commencement of Part 2-3 of the FW Act. Part 2-3 commenced on 1 January 2010 and the first review (the Review) is to start as soon as practicable after 1 January 2014, and has commenced.
[2] 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 issues2, a Common issues stage and an Award stage. The Commission identified a number of common issues to be dealt with as part of the Review:
[3] A matter will not necessarily be regarded as a common issue just because variations are sought to more than one award. ‘Common issues’ are likely to be proposals for significant variation or change across the award system, such as applications which seek to change a common or core provision in most, if not all, modern awards.
[4] A matter identified as a common issue will be referred to a Full Bench for determination in a ‘stand alone’ proceeding, as distinct from having the issue determined during the award stages of the Review. The Full Bench will be responsible for managing the proceedings for the common issue. This may result in the Full Bench issuing determinations varying particular modern awards or issuing statements of principle that may be considered when reviewing individual modern awards.
[5] To ensure that the rights of all interested parties are protected the review of a particular award will not be finalised until all of the common issues have been determined. While the review of a particular award will not be finalised until all of the common issues have been determined, this will not preclude a determination being issued varying one or more modern awards and those determinations taking effect before the completion of the Review.
The Purpose of this Statement
[6] The purpose of this Statement is to identify whether issues that have been raised recently by a number of parties will be dealt with as ‘common issues’ in the Review and to outline the approach which will be adopted for dealing with issues related to casual and part-time employment that have been raised across a number of modern awards.
[7] In a Statement issued on 1 October 2014 the Commission sought the views of interested parties on whether various additional matters should be dealt with ‘common issues’. These additional proposed common issues had been raised by various parties at the conference on 29 September 2014. A copy of the transcript of the conference proceedings is available on the Commission website. The proposed additional common issues were:
● the small (micro) business schedule (proposed by Australian Business Industrial and the NSW Business Chamber (ABI));
● domestic violence leave (proposed by the Australian Council of Trade Unions (ACTU));
● family friendly work clause (proposed by the ACTU)
● motor vehicle allowance (proposed by the Association for Payroll Specialists (TAPS));
● method of calculating monthly pay (proposed by TAPS); and
● mechanisms for recovering overpayment (proposed by TAPS).
[8] Interested parties were also invited to submit an outline of the draft determinations they propose in relation to the casual employment and part-time employment common issues. Parties at the conference on 29 September 2014 provided a preliminary outline of issues that they may raise in the casual employment and part-time employment common issues.
[9] All of the submissions received have been published on the 4 yearly review section of the Commission’s website. The 1 October 2014 Statement noted that the Commission would consider the submissions received and then issue a statement outlining which issues are to be dealt with as ‘common issues’ and also defining the scope of the casual and part-time employment common issues. This is the Statement referred to in the 1 October 2014 Statement.
Casual employment and part-time employment common issue
[10] The casual employment and part-time employment common issues commenced with an initial conference on 29 September 2014. This conference sought to identify the scope and content of these common issues. The Statement issued on 1 October 2014 3 invited parties to submit an outline of their proposed positions in relation to the matters raised at conference, which included:
● part-time minimum engagement;
● part-time rostering provisions and patterns of hours;
● part-time overtime provisions;
● casual minimum engagement;
● casual conversion (including the requirement to notify eligible casual employees of their right to elect to convert); and
● restrictions on casual engagement.
[11] The ACTU and the Australian Industry Group (Ai Group) made submissions detailing their proposed claims and positions in relation to the casual and part-time employment issues across a number of awards.
[12] The ACTU is proposing model clauses dealing with the following issues:
● Casual conversion - where a casual employee has the right to elect to have their employment converted to full-time or part-time employment;
● Casual conversion - where a casual employee is deemed to be employed on a permanent full-time or part-time basis after a certain length of time unless electing to remain employed as casual;
● Minimum engagements; and
● Other provisions relating to casual employees.4
[13] The ACTU seeks a model casual conversion clause and a four hour minimum payment/engagement for casual and part-time employees covered by a number of awards. The ACTU are also seeking to insert clauses into awards stating that employees are not to be engaged and re-engaged to avoid award obligations; that employers shall give existing casuals opportunities to increase working hours by agreement; and that upon engagement casual employees must be informed by the employer about their classification level and rate of pay.
[14] Various employer organisations including ACCI and Ai Group have foreshadowed their strong opposition to the ACTU’s claims. A number of submissions, particularly by employer parties, also opposed these claims being dealt with as a ‘common issue’, largely on the basis that the Commission should have regard to the circumstances in the particular industry or sector covered by an award and not adopt a ‘one size fits all approach’. These submissions are more appropriately directed at the merit of the claims advanced rather than the process adopted for the hearing and determination of the claims.
[15] The ACTU claims are properly characterised as ‘common issues’ and will be referred to a ‘stand alone’ Full Bench (the Casual and Part-time Employment Full Bench). The characterisation of a claim as a common issue simply relates to the process adopted for hearing and determining the claim, it does not involve any assumption that, if granted, the variation would apply consistently across all or most modern awards. Interested parties who oppose the ACTU’s claims on the basis of the particular circumstances pertaining to the modern award in which they have an interest will have an opportunity to make such submissions to the Casual and Part-time Employment Full Bench.
[16] In addition to the ACTU claims a number of employer parties have foreshadowed claims in relation to the various aspects of casual and part-time employment. For example, Ai Group are seeking changes to the casual and part-time employment provisions in some 25 particular awards for reasons relating to the industries concerned. The employer claims tend to relate to awards of specific interest to the relevant organisation and do not seek a common standard across all or most awards. On that basis it is contended that such claims do not have the character of a ‘common issue’. I agree. But that still leaves the question of the most appropriate way of dealing with these claims. ACCI advances the following submission in respect of this matter:
“Some ACCI members may seek to address concerns relating to part-time and casual provisions within particular awards and it seems such applications would likely only address particular industry or occupational considerations. The form and incidence of casual and part-time employment and matters such as rostering arrangements and working patterns vary among industries and occupations and ACCI maintains these circumstances favour individual treatment. The award stage may still provide the most efficient way of dealing with such claims but if they are left as a part of the common issues proceedings, they may warrant discrete treatment.” 5
[17] The FW Act gives the Commission considerable latitude in relation to the process by which the Review is to be conducted. The Commission must be constituted by a Full Bench to conduct a Review and to make determinations and modern awards in a Review (see ss.616(1), (2) and (3) of the FW Act). Section 582 provides that the President may give directions about the conduct of a Review and the general provisions relating to the performance of the Commission’s functions apply to the Review (see particularly ss.577 and 578). 6
[18] Subsection 156(5) of the FW Act provides that in a Review each modern award must be ‘reviewed in its own right’, however, this does not prevent the Commission reviewing two or more modern awards at the same time. In National Retail Association v Fair Work Commission 7 the Full Court of the Federal Court considered the meaning of the expression ‘[t]he review must be such that each modern award is reviewed in its own right’, in Item 6 (2A) of Schedule 5 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) . The Full Court held that the review of a particular modern award may be conducted through a number of different hearings in which different aspects of the award are determined. The Full Court rejected the proposition that Item 6 (2A) required that the review of each modern award is to be confined to a single holistic assessment of all of its terms and said:
“... The purpose of the requirement to review a modern award “in its own right” is to ensure that the review is conducted by reference to the particular terms and the particular operation of each particular award rather than by a global assessment based upon generally applicable considerations. In other words, the requirement is directed to excluding extra-award considerations. It is not directed to the manner in which intra-award considerations are to be dealt with.
That the review of each modern award must focus on the particular terms and the particular operation of the particular award does not suggest that the review of that award was intended to be confined to a single holistic assessment of all of its terms. The conclusion that a modern award fails to comply with the modern awards objective may be based upon a single offending provision. There is no reason in principle why the FWC could not come to that conclusion without reviewing the entire award. Nor can we discern any reason why the review of a modern award was intended to be confined to a single holistic exercise. ...
... It should not be assumed that, in requiring the FWC to conduct the very substantial task of reviewing all modern awards, Parliament intended to impose practical constraints upon the manner in which that task was to be performed, unless such constraints served a useful purpose. No such purpose is apparent to support the constraint for which the NRA contends. Further, the very wide procedural discretion conferred on the FWC, to which we referred at [18], suggests that Parliament intended to confer upon the FWC a great deal of flexibility in the way the transitional review was to be conducted.” 8
[19] To ensure that the range of issues relating to casual and part-time employment are dealt with efficiently and to minimise the risk of inconsistent decisions it is appropriate that all matters pertaining to casual and part-time employment be dealt with by one Full Bench, the Casual and Part-time Employment Full Bench. This means that the ACTU and employer claims referred to in the submissions filed and matters which arise during the award stage, will be referred to the Casual and Part-time Employment Full Bench. The referral of these claims to that Full Bench simply relates to the process adopted for the hearing and determination of these claims. In this context it is relevant to note the following observation by the Full Bench in the Preliminary Jurisdictional Issues decision pertaining to the Review:
“Given the broadly expressed nature of the modern awards objective and the range of considerations which the Commission must take into account there may be no one set of provisions in a particular award which can be said to provide a fair and relevant safety net of terms and conditions. Different combinations or permutations of provisions may meet the modern awards objective.” 9
[20] The presiding Member of the Casual and Part-time Employment Full Bench (Vice President Hatcher) will list these matters for mention and programming in due course.
Additional common issues
[21] The 1 October 2014 Statement 10 provided information relating to additional common issues that may be dealt with as part of the Review. A number of parties have raised additional claims to be dealt with as common matters, and these are set out above (at paragraph [7].
(i) ABI/NSW Business Chamber claim: Small (Micro) Business Schedule
[22] ABI are seeking the inclusion of a new Small (Micro) Business Schedule in over 100 modern awards. The schedule is said to contain provisions specifically directed towards the needs of micro business employers (i.e. employers who employ a total of fewer than 5 employees).
[23] It is apparent from the submissions filed that consultations in respect of the detail of this claim and its application to particular modern awards have not yet been completed. The small (micro) business schedule will be dealt with as a common issue but at this stage it is not appropriate to make any directions for the hearing and determination of this claim, and there were no submissions to the contrary. The principal proponent of this claim, ABI, will have liberty to apply to have this matter brought on for mention and directions, once the consultation process it is currently undertaking has concluded.
(ii) ACTU claims - Family and domestic violence clause that relates to leave and family friendly work arrangements
[24] The ACTU seeks variations to all awards in respect of the issue of family and domestic violence leave and the issue of family friendly work arrangements. The ACTU submits that both matters should be dealt with as common issues. The United Firefighters Union have also submitted similar claims as the ACTU, however directed at the Fire Fighting Industry Award 2010 only.
[25] The ACTU proposes that the claim related to family and domestic violence should include 10 days paid domestic violence leave and a right to request a change in working arrangements in connection with their disclosure of domestic violence. The ACTU also outline that the claim also includes incidental provisions to:
[26] The ACTU propose that the claim related to family friendly work arrangements should include the following elements:
[27] The ACTU do not have a fixed view as yet on how either claim should be expressed as award terms.
[28] Some parties 11 oppose these issues being dealt with as common issues and a number of other parties submitted that they did not support the claims but agreed that they should be dealt with as a common issue.12 ACCI and Ai Group submitted that they hold a fundamental objection to both of these claims and suggest scheduling proceedings to deal with these objections as threshold matters in 2015 prior to any hearing involving the substantive claims. The Australian Federation of Employers and Industries supports ACCI’s submissions.
[29] The ACTU claims will be dealt with as a common issue. It is appropriate that any preliminary/jurisdictional issues be dealt with before substantive merit proceedings commence.
[30] The preliminary/jurisdictional issues will be heard in July 2015. The ACTU, ACCI and Ai Group are directed to confer in relation to the proposed directions. Draft consent directions, including a description of the preliminary/jurisdictional issues to be decided, are to be submitted by no later than 4.00 pm on Monday 16 February 2015.
(iii) The Association of Payroll Specialists claims
[31] In correspondence dated 11 June, 8 July and 28 September 2014 TAPS raised three issues which it contends should be dealt with as common issues:
(a) the motor vehicle allowance which appears in over 70 awards, it is submitted that the interaction between these rates and Australian Tax Office rates may cause difficulty in payroll processing;
(b) some awards provide for payment of wages on a monthly basis, but do not provide a method of calculating monthly wages; and
(c) some awards provide for payment in advance but do not provide a mechanism for recovering overpayment when an employee leaves prior to the completion of the month.
[32] The vast majority of the submissions filed opposed having the matters raised by TAPS being dealt with as a common issue and submitted that these matters are more appropriately dealt with during the award stage. I agree. These matters will be considered during the award stage and will not be referred to a ‘stand alone’ Full Bench.
2 See the Full Bench decision dealing with the Preliminary Jurisdictional Issues pertaining to the Review [2014] FWC FB 1788.
4 ACTU submission, 11 November 2014, para 2.
5 ACCI Submission, 11 November 2014.
6 See generally 4 Yearly Review of Modern Awards: Preliminary Jurisdictional Issues [2014] FWCFB 1788.
8 Ibid at [85]. [86] and [88].
11 Private Hospital Industry Employers’ Association, Australian Hotels Association, Live Performance Australia, Horticultural Taskforce.
12 Restaurant and Catering Industrial, National Farmers Federation, ABI and NSW Business Chamber, HIA, Accommodation Association of Australia.
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