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

4 yearly review of modern awards—award stage—common issues—timetable.

Background

[1] Under s.156 of the Fair Work Act 2009 (the Act) the Fair Work Commission (the Commission) is required to review all modern awards every four years. A Full Bench decision was issued on 17 March 2014 1 determining the jurisdictional issues and defining the scope of the first 4 yearly review of modern awards (the Review).

[2] In the statement issued on 17 March 2014 2 the Commission stated that the Review would comprise an Initial stage, dealing with jurisdictional issues, a Common issues stage and an Award stage. The Initial stage is complete and the Common issues stage has commenced dealing with issues identified in relation to annual leave and transitional/sunsetting provisions.

[3] On 17 April 2014 a Draft Guide to the Award Stage was published on the Commission’s website outlining the process that the Commission intends to follow in the Award stage. An exemplar award prepared by staff of the Commission based on the Security Services Industry Award 2010 3 was published at the same time as the draft guide. Following feedback, the Guide and Exemplar award were republished on 17 June 2014 in final form.

[4] The Guide identified six awards that may be able to be combined into three awards. In the first group of awards being considered by the Full Bench a further two awards have been identified as potentially being able to be amalgamated (Cement and Lime Award 2010 and Quarrying Award 2010). At this stage no further submissions have been received in relation to amalgamating awards.

[5] The Award stage commenced with an initial conference for the first group of awards on 13 May 2014. This was followed by a conference for each award before single members to identify the issues and determine any areas of agreement. The members reported back to the Full Bench and these reports are available on the Commission’s website. The initial conference and report back phase for Group 1 awards is now complete.

[6] The purpose of this statement is to set out the timetable and procedure for the remainder of the 4 yearly review.

[7] In the Notice of listing issued on 9 May 2014 the first group of awards under review was divided into 5 sub-groups (1A–1E). The awards in these sub-groups are listed at Attachment A. In order to ease the burden on those who have an interest in a number of awards, the Commission will take a staged approach to the review of the Group 1 awards.

[8] On the basis of the reports from the initial conferences there are six awards in which substantial matters appear to be contested. The Commission has decided that these awards will be referred to two separate Full Benches for determination as follows:

(i) A Full Bench to hear and determine the issues raised in respect of the following awards:

• Meat Industry Award 2010;



• Security Services Award 2010; and



• Stevedoring Industry Award 2010.

(ii) A Full Bench to hear and determine the issues raised in respect of the following awards:

• Textile, Clothing, Footwear and Associated Industries Award 2010;



• Timber Industry Award 2010; and



• Vehicle Manufacturing, Repair, Services and Retail Award 2010.

[9] The remaining awards will be dealt with in two parts. The first part will be the remaining awards in sub-groups 1A and B as set out at Attachment A. The second will be the balance of the Group 1 awards (sub-groups 1C–1E).

[10] The Commission is currently in the process of finalising exposure drafts for each of the Group 1 awards. These exposure drafts will be published in accordance with the timetable set out in Attachment B. Parties will then be given the opportunity to make written submissions and submissions in reply after which the awards will be called on for mention. Hearings will be listed in October and November and parties will be given the opportunity to make oral submissions regarding both the technical aspects of the exposure drafts and the substantive variations they wish to pursue. Some awards or issues may be dealt with by a separate Full Bench.

Award stage

[11] The award stage for Groups 2, 3 and 4 will be run in a similar way to the process undertaken in Group 1 (as set out in the Guide to the Award Stage). The steps are as follows:

(i) An initial conference will be held to discuss the scheduling of the group.

(ii) Following the initial conference the Commission will publish a briefing note, setting out any issues identified by Commission staff for each award.

(iii) Each award will be referred to a single member for conference to identify issues and the extent of any agreement, this change in process from Group 1 is in response to feedback received that interested parties were required to attend the Commission on too many occasions. The transcript of this conference will be published on the Commission’s website.

(iv) The single member will report back to the Full Bench and the reports will be published.

(v) The Commission will publish an exposure draft of the new award together with directions for submissions. This exposure draft will incorporate any technical and drafting changes proposed by the Commission and highlight any provisions to be further reviewed. The exposure draft will not incorporate any substantive changes.

(vi) Interested parties will be given the opportunity to make submissions in relation to the exposure draft and any disputed issues.

(vii) Interested parties will be given the opportunity to make submissions in reply in relation to the exposure draft and any disputed issues.

(viii) The matter will be called on for mention. The mention will before the Presiding Member of the Full Bench only.

(ix) Further consultation will occur with either a single member or the Full Bench, or alternatively a hearing may be listed before the Full Bench. Any outstanding issues will be determined at this stage and the parties may be required to adduce evidence of any claims.

(x) A decision or statement will be issued by the Full Bench with a determination varying each modern award to give effect to any changes required. Feedback may be sought on the form of the final order however this will not be an opportunity to re-agitate claims.

[12] It should be noted that the review of each award will not be complete until all the common issues proceedings are finalised.

[13] It is anticipated that the initial conference for Group 2 awards will be held in September 2014. An initial conference for Group 3 and 4 awards will be held in November 2014. A more detailed timetable will be issued in the form of directions following these conferences.

Penalty rates

[14] During the initial conferences a number of parties sought to press the inclusion of a penalty rates common issue, however, the Commission was of the view that penalty rates did not meet the definition of a common issue, as set out in the statement dated 17 March 2014. The awards where penalty rates may be a contested issue have been included in Group 4. Parties were consulted about the inclusion of these awards in Group 4 and no objections were received. These awards were allocated to Group 4 to allow time for the interested parties to gather evidence to support their claims and to ensure that any phasing in of transitional rates or loadings will be complete. During the initial conference dealing with the scheduling of this group, parties will be consulted about how these issues can most efficiently be dealt with. An initial conference in relation to Group 4 awards will be held in November 2014.

[15] We note that the Pharmacy Guild of Australia has also foreshadowed raising penalty rates as an issue in relation to the Pharmacy Industry Award 2010. This award is being dealt with in Group 2.

Enterprise modern awards and State reference public sector modern awards

[16] Pursuant to Schedule 6 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the Transitional Act) more than 140 applications were received prior to 31 December 2013 to make enterprise modern awards. Separate Full Benches have been constituted to determine the applications. The status of each application can be reviewed on the Commission’s Enterprise award applications page.

[17] Schedule 6A of the Transitional Act requires the Commission to make State reference public sector modern awards. A Full Bench has been established and must consider all State reference public sector transitional awards regardless of whether an application was lodged. These matters can be reviewed on the State reference public sector transitional award applications page.

[18] Section 156 of the Act requires the Commission to review all modern awards. After the current processes are completed, any enterprise modern awards or state reference public sector awards made will be called on for review in 2015.

Common issues

[19] The Commission has already commenced dealing with the annual leave (AM2014/47) and transitional/sunsetting provisions (AM2014/190) common issues. The annual leave common issue is listed for a conciliation conference before Senior Deputy President Watson on 14–15 August 2014 and for hearing before the Full Bench on 20–21 August 2014. Amended directions for submissions were issued for the transitional/sunsetting provisions common issue on 15 July 2014. Further directions in these matters will be issued in due course.

[20] The focus of proceedings relating to the transitional/sunsetting provisions common issue is accident pay, redundancy and district allowances. The Commission is aware that there are a number of transitional provisions in awards which will not be dealt with as part of the transitional provisions common issue proceedings and that some of these provisions are scheduled to cease operation on 31 December 2014. Accordingly, any party who has interest in an award that has a transitional issue and would like to have this issue heard and determined prior to the end of the transitional period, must notify the Commission by email to amod@fwc.gov.au by 4 pm on Friday 29 August 2014.

[21] At the Group 1 awards conference on 13 May 2014 the ACTU foreshadowed an application in relation to apprentice conditions in a number of awards across all four groups. This matter is now being dealt with as a common issue (AM2014/192). In the statement of 2 June 2014 the Full Bench referred the apprentices claim to Commissioner Roe for an initial conference and report back to the Full Bench that dealt with the apprentice related applications (AM2012/18 and others) during the Transitional Review (Justice Boulton, Senior Deputy President Harrison and Commissioner Roe). Commissioner Roe issued a Statement and Directions in relation to this issue on 27 June 2014.

[22] The remaining common issues are:

(i) Casual employment and part-time employment;

(ii) Public holidays; and

(iii) Award flexibility/facilitative provisions

[23] The part-time employment and casual employment common issues will commence with an initial conference on Monday 29 September 2014 which will deal with the content of these common issues. Directions will then be issued on a similar basis to the annual leave and transitional provisions common issue. The hearings in relation to these common issues are expected to be held in the first half of 2015.

[24] In the statement issued on 17 March 2014 the Commission stated that the list of common issues is not closed and that further common issues may be identified as part of the Review. Any additional common issues can be raised at the 29 September 2014 conference.

[25] The public holidays and the award flexibility/facilitative provisions common issues will commence in early 2015. Any change to the Act arising from the Fair Work Amendment Bill 2014, can be addressed during these proceedings.

[26] We have received correspondence from The Association of Payroll Specialists regarding the motor vehicle allowance based on a rate per kilometre which appears in over 70 modern awards. It is submitted that the interaction between these rates and Australian Tax Office rates may cause difficulty in payroll processing. The issues raised in this correspondence will be discussed at the conference to be held on 29 September 2014.

[27] A preliminary timetable for the common issues is at Attachment C.

National Employment Standards

[28] A number of issues of alleged inconsistency with the National Employment Standards (NES) have been raised to date 4. Parties wishing to make a submission in relation to the potential inconsistencies, including those raised by the Fair Work Ombudsman, should forward their submissions to amod@fwc.gov.au by 26 September 2014. The NES issues across all awards will be dealt with at the same time and will be called on for mention with the sub-group 1A and 1B awards on 17 October 2014. Submissions in relation to NES issues will be heard at the commencement of the hearings in relation to the sub-group 1A and 1B awards on 23 October 2014.

Conclusion

[29] The Commission’s website will continue to be extensively used throughout the Review. Parties who have not already done so are encouraged to subscribe to the award matters notification service to be kept informed of the progress of this Review.

PRESIDENT

ATTACHMENT A—Group 1 awards divided by sub-group

* To be heard by Full Bench 1.

** To be heard by Full Bench 2.

ATTACHMENT B—Timeline for award stage – Group 1 awards

1 For sub-groups see Attachment A

2 Notices of listing will be issued in due course

ATTACHMENT C—Preliminary timeline for common issues

Annual leave (AM2014/47)

Transitional/sunsetting provisions (AM2014/190)

NOTE: The transitional/sunsetting provisions being dealt with in AM2014/190 relate to accident pay, redundancy and district allowances only. There are other transitional or sunset provisions contained in modern awards, however, these are considered more award specific and will be dealt with during the award stage of the review.

Any interested party who has an award falling in award Groups 2, 3 or 4 that has a transitional issue and would like to have this issue heard and determined prior to the end of the transitional period, must notify the Commission by email to amod@fwc.gov.au by 4 pm on Friday 29 August 2014.

Apprentices (AM2014/192)

National Employment Standards

Issues of inconsistency with the National Employment Standards will be dealt with concurrent with sub-group 1A and 1B awards:

Casual employment and part-time employment

Proceedings will commence with an initial conference on 29 September 2014. Directions will then be issued.

Public holidays

Proceedings will commence with an initial conference in early 2015. Directions will then be issued.

Award flexibility/facilitative provisions

Proceedings will commence with an initial conference in early 2015. Directions will then be issued.

Additional common issues

A conference will be held on 29 September 2014 to seek the views of the parties on the addition of any further common issues. If any additional issues are identified as appropriate to be dealt with as part of the 4 yearly review, they will be scheduled for 2015.

 1   [2014] FWCFB 1788.

 2   [2014] FWC 1790.

 3   MA000016.

 4   Correspondence from the Fair Work Ombudsman dated 4 April 2014.

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