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

4 yearly review of modern awards - alleged inconsistencies with the NES.

[1] The Commission has received submissions from the Fair Work Ombudsman identifying a number of provisions in modern awards which, it is contended, are inconsistent with the provisions of the National Employment Standards (NES). A number of other parties have also made submissions identifying alleged inconsistencies with the NES in certain modern awards.

[2] We propose to consider and, if necessary, remedy the alleged inconsistencies with the NES identified by the Fair Work Ombudsman as well as by other parties. That consideration will extend to all 122 modern awards (that is, not just the awards identified in Group 1).

[3] We have given consideration to the submissions that have been lodged identifying inconsistencies with the NES, and the further submissions in reply. It appears that the identified inconsistencies all fall into one of the following five categories:

(1) Provisions which are concerned with restrictions on the payment of annual leave loading upon termination of employment.

(2) Textile, Clothing, Footwear and Associated Industries Award 2010 provisions.

(3) Provisions about which there appears to be agreement as to both the existence of an inconsistency with the NES and the award variation appropriate to remedy that inconsistency.

(4) Provisions about which there appears to be agreement as to the existence of an inconsistency with the NES, but no agreement as yet concerning the appropriate remedial award variation.

(5) Provisions about which there is, as yet, no agreement as to the existence of an inconsistency with the NES.

[4] Attachment A to this Statement is a schedule setting out which category each modern award provision identified by the Fair Work Ombudsman and other parties falls. This categorisation of the provisions is consistent with the submissions made by the parties at the hearing held on 24 October 2014.

[5] The matter in category 1 will be referred to the Annual Leave Full Bench for hearing and determination. The matter in category 2 will be dealt with as part of the broader process established for the conduct of the review of the Textile, Clothing, Footwear and Associated Industries Award 2010.

[6] The matters in the remaining categories will be dealt with by this Full Bench. In respect of matters falling in categories 3 and 4, the Full Bench will issue a decision concerning whether the identified provisions are inconsistent with the NES and, where it determines that there is an inconsistency, will publish a draft determination setting out a variation to remedy the inconsistency. The parties will be given an opportunity to file submissions in respect of the draft determinations and, if necessary, propose alternate award variations as a remedy.

[7] Two documents have been published on the alleged NES inconsistencies page of the Commission’s website. These documents provide a summary of the issues that are before us, one document outlines the issues by modern award, the other outlines the issues by reference to the section of the Fair Work Act 2009 it relates to. We are conscious that some interested parties may not have had the opportunity to consider matters set out in categories 3 and 4. Any party who has not already made a submission in relation to these matters and who wishes to do so should file a written submission by no later than 4.00 pm on 21 November 2014.

[8] In respect of matters in category 5, parties will be given the opportunity to file further submissions as to whether an inconsistency exists in accordance with the timetable set out below. A further Full Bench hearing as to category 5 will occur on Thursday 26 February 2015.

[9] Attachment B to this Statement sets out a draft timetable for categories 3, 4 and 5 as outlined above. Formal directions will be issued for these categories in due course.

PRESIDENT

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ATTACHMENT B – DRAFT TIMETABLE