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

4 yearly review of modern awards – penalty rates – change in terminology.

[1] The Australian Hotels Association and the Accommodation Association of Australia (AHA and AAA) seek the removal of the reference to ‘penalty’ and ‘penalty rates’ in clause 32 of the Hospitality Industry Award 2010 (the Hospitality Award) and the insertion of references to ‘additional remuneration’. A similar variation is proposed by the Pharmacy Guild of Australia (PGA) in respect of the Pharmacy Industry Award 2010 (the Pharmacy Award).

[2] On 23 February 2017, we issued a decision in the penalty rates matter (the Decision). 1 As part of the Decision, we noted that further submissions would be invited from interested parties about the proposal to change terminology in the Hospitality Award and the Pharmacy Award.

[3] The changes proposed appear to be sought on the basis that s.134(1)(da)(iii) of the FW Act speaks of ‘the need to provide additional remuneration for … employees working on weekends’. The changes proposed may also be said to be consistent with the contemporary purpose of ‘penalty rates’. As we mentioned in Chapter 3 of the Decision, the purpose of such rates is not to penalise employers for rostering employees to work at such times, it is to compensate employees for the disutility of working on weekends.

[4] The submissions received to date in respect of the proposed change in terminology are very limited, and as noted in the Decision, the change in terminology proposed is only advanced in respect of 2 modern awards. If changes of the type proposed were to be made then, prima facie, they should be made in all modern awards which currently provide for ‘penalty rates’ (see generally [901]–[906]). It follows that this issue affects a large number of modern awards.

[5] Directions setting out a timetable for submissions are attached to this Statement.

[6] We intend to deal with this matter on the papers unless any party seeks a hearing.

PRESIDENT

[2017] FWCFB 1933

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

4 yearly review of modern awards - penalty rates – change in terminology.

Further to the Statement issued on 18 April 2017: 2

1. On or before 8 May April 2017 interested parties are to file written submissions and any evidence in support of the proposed change in terminology and are to identify the modern awards in respect of which the change is sought.

2. On or before 8 May 2017 interested parties are to file written submissions and any evidence in opposing any proposed change in terminology.

3. On or before 22 May 2017 interested parties are to file any written submissions and evidence in reply.

4. The Full Bench intends to determine this matter on the papers unless an interested party indicates that it seeks a hearing. Such a request should be submitted in writing by 8 May 2017.

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

6. Liberty to apply.

PRESIDENT

Printed by authority of the Commonwealth Government Printer

 1   [2017] FWCFB 1001

 2   [2017] FWCFB 1933

Printed by authority of the Commonwealth Government Printer

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