[2017] FWC 5530


Fair Work Act 2009

s.156 – 4 yearly review of modern awards

4 yearly review of modern awards – Restaurant Industry Award 2010




Review of the Restaurant Industry Award 2010 – substantive issues

[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 (the Review). In the Award stage of the Review the 122 modern awards have been divided into 4 groups. The Restaurant Industry (General) Award 2010 (the Restaurant Award) was included in Group 4.

[2] On 24 March 2016 a summary of proposed variations to the Restaurant Award was published on the Commission’s website.

[3] On 15 August 2016 a Statement and draft directions were issued (the 15 August Statement) which amended the timetable for finalising the review of Group 4 awards 1.

[4] Following the 15 August Statement a Mention was held on 24 August 2016 to allow interested parties to comment on the proposed timetable and raise any other issues in respect of the Statement. Transcript of the Mention is available on the Commission’s website.

[5] A Statement and Directions issued on 26 August 2016 2 directed parties to:

‘…file a short submission confirming the substantive claims being pursued. This is not expected to be a full submission, but should include the following:

(i) the nature of the change sought; 

(ii) a draft variation determination; 

(iii) the type of case to be run (merits or evidentiary based); and 

(iv) if the case is evidence-based, how many witnesses will be called?

This process will give parties the opportunity to reframe existing claims or to raise additional substantive claims. Parties are also requested to advise the Commission if they are no longer pursuing any of their earlier claims. The filing date for this submission is on or before 4pm on Friday 30 September 2016.’ 3

[6] The following submissions were received in response to the 26 August 2016 Statement and Directions:

[7] Business SA’s submission confirmed that:

‘Our submission from March 2015 highlighted the inconsistency concerning minimum engagement periods in this award.12 Business SA submits this is a technical and drafting issue which should be dealt with by the exposure draft. Should this inconsistency remain we may pursue a clarification in future.’

[8] This submission appears to have been resolved through the plain language process at clause 15.1 of the plain language exposure draft.

[9] United Voice confirmed that substantive issues in relation to casual employment would be pursued in the review of the Restaurant award as well as the Hospitality Industry (General) Award 2010 and the Registered and Licensed Clubs Award 2010.

[10] Restaurant and Catering Industrial confirmed that each of the substantive claims, except item 11 from the submission of 2 March 2015 was pressed.

[11] There has not yet been a hearing to deal with any substantive issues in the Restaurant Award.

[12] Since the parties made these submissions, a Decision has been handed down in the Part-time employment and Casual employment common issues 4. The plain language Full Bench has also handed down a Decision in relation to the Restaurant Award5. Accordingly, interested parties are directed to file a short submission confirming which substantive claims they wish to pursue as a result of the publication of these Decisions. Such submission should be filed by no later than 4 pm Monday 6 November 2017. In the event that a party does not file a submission indicating that they wish to pursue a particular substantive claim I will proceed on the basis that such claims are no longer pressed.
[13] A Full Bench will be constituted to deal with any residual substantive claims after 6 November 2017.


 1   [2016] FWC 5694

 2   [2016] FWC 6062

 3   Ibid at [5]-[6]

 4   [2017] FWCFB 3541

 5   [2017] FWCFB 5397

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