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

4 yearly review of modern awards—Award flexibility
(AM2014/300)

4 yearly review of modern awards – common issues – award flexibility.

[1] Section 156 of the Fair Work Act 2009 (the Act) requires the Fair Work Commission (the Commission) 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, a Common issues stage and an Award stage.

[2] In the 17 March 2014 Statement, Award flexibility was listed as a common issue to be dealt with as part of the Review. An initial conference was held on 17 November 2014 and a further conference was held on Friday 12 December 2014 to determine the scope and indicative timetable for dealing with this common issue.

[3] The purpose of this statement is to identify the issues raised by parties the context of this common issue and to set a timetable for the determination of these issues.

[4] The Australian Industry Group (Ai Group), in its correspondence of 13 November 2014, indicated that it will seek to have provisions relating to ‘time off in lieu of overtime’ either inserted or standardised across a number of modern awards, as well having provisions regarding ‘make-up time’ inserted into a number of specified modern awards. The relevant awards for each of Ai Groups claims are outlined at Attachment A to this Statement. The Australian Council of Trade Unions (ACTU) opposes the claims advanced by Ai Group.

[5] The Australian Manufacturing Workers’ Union (AMWU) will seek to vary the provisions relating to ‘time off in lieu’ in a number of awards so that the compensatory time off is calculated at the relevant overtime rate, rather than on an hour-for-hour basis. The awards the AMWU are seeking to vary are outlined at Attachment B to this Statement.

[6] At the conference of 12 December 2014, both Ai Group and the ACTU indicated that it would be likely the issues would be determined on written submissions rather than evidence.

[7] To assist the parties in this matter, and to provide the broader context for the determination of these issues, the Fair Work Commission will prepare a background paper which tracks the history of the provisions in question. This background paper will then be published on the Fair Work Commission website in January 2015.

[8] This matter will be the subject of a further conference at 1.00 pm on Friday, 20 February 2015.

[9] Draft directions are attached to this statement. Interested parties are invited to comment on the draft directions by no later than 4.00 pm on Friday, 13 February 2015. Any comments are to be forwarded to amod@fwc.gov.au. Final directions for this matter will be published on Friday, 20 February 2015.

PRESIDENT

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

4 yearly review of modern awards—Award flexibility
(AM2014/300)

It is directed that:

In relation to each of the propositions outlined at paragraphs 4 and 5 of the Statement of 17 December 2014 regarding the Award Flexibility common issue:

1. The matter will be listed for a further mention at 1.00 pm on Friday, 20 February 2015.

2. On or before 4.00 pm on Friday, 6 March 2015 each interested party (both employer applicants and union applicants) are to file in the Commission comprehensive written submissions, any relevant documentary material and comprehensive witness statements for any witness evidence to be relied upon in support of the propositions.

3. On or before 4.00 pm on Wednesday, 15 April 2015 any interested party is to file in the Commission a comprehensive submission, any relevant documentary material and comprehensive witness statements for any witness evidence to be relied upon in response to the propositions.

4. The matter will be listed for hearing before a Full Bench on Wednesday, 22 April 2015 and Thursday, 23 April 2015.

5. Leave is granted to apply generally.

6. All material should be sent to amod@fwc.gov.au.

PRESIDENT

Attachment A—awards relating to the claims made by Ai Group

Awards to be varied to insert the time off in lieu of overtime clause:

Awards to be varied by deleting existing TOIL provision and replacing with test case TOIL clause:

Awards to be varied to insert the make-up time clause:

Attachment B—awards relating to the claims made by the AMWU

Awards to be varied for TOIL to provide for time off instead of payment to be equal to over time rate:

Awards to be varied to insert standard requirement for TOIL clause:

 1   [2014] FWC 1790.

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