[2014] FWC 1790

FAIR WORK COMMISSION

STATEMENT AND DIRECTIONS


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

4 yearly review of modern awards – Common Issues
(AM2014/1)

JUSTICE ROSS, PRESIDENT

MELBOURNE, 17 MARCH 2014

4 yearly review of modern awards – common issues.

Introduction

[1] In 2014 the Fair Work Commission (the Commission) is required to undertake the first 4 yearly review of modern awards (the Review) in accordance with section 156 of the Fair Work Act 2009 (the Act).

[2] The Review will consist of an initial stage, which will consider the legislative framework under which the Review will be undertaken and identify any ‘common issues’, followed by an award stage which will review all modern awards in four groups as set out in the issues paper released on 24 January 2014.

[3] On 24 February 2014 the Commission released an issues paper (the Issues Paper) relating to the proposed common issues in the Review. The Issues Paper was released to facilitate discussion at a conference convened on 26 February 2014. A transcript of the conference proceedings in available on the initial stage proceedings page of the Commission’s website.

[4] This draft document deals with the next steps in the identification and determination of common issues during the Review. It sets out the initial common issues, as broadly agreed by the parties at the 26 February conference, and the process the Commission intends to adopt in dealing with these issues.

The Common Issues

[5] A matter will not necessarily be regarded as a common issue just because variations are sought to more than one award. ‘Common issues’ are likely to be proposals for significant variation or change across the award system, such as applications which seek to change a common or core provision in most, if not all, modern awards.

[6] A matter identified as a common issue will be referred to a Full Bench for determination in a ‘stand alone’ proceeding, as distinct from having the issue determined on an award by award basis during the award stages of the review. The Full Bench will be responsible for managing the proceedings for the common issue. This may result in the Full Bench issuing determinations varying particular modern awards or issuing statements of principle that may be considered when reviewing individual modern awards.

[7] To ensure that the rights of all interested parties are protected the review of a particular award will not be finalised until all of the common issues have been determined. While the review of a particular award will not be finalised until all of the common issues have been determined, this will not preclude a determination being issued varying modern award’s and the determination taking effect in the award phase.

[8] On the basis of discussions during the 26 February conference the following matters will be regarded as common issues, at this stage of the Review:

[9] These matters will constitute the initial list of common issues to be determined in the Review. The list of common issues is not closed and it is anticipated that further common issues will be identified during the course of the Review. A further common issues conference will be held in October 2014 to review the common issues process and to seek the views of parties on any additional common issues that have arisen during the course of the Review. Further details of this conference will be provided in due course.

[10] As stated in the Issues Paper, proposals to vary penalty rates will be dealt with in the award phase of the Review, except where a proposal seeks to vary, for example, the public holiday penalty rate across all or most modern awards.

[11] A number of parties at the 26 February conference suggested that award coverage should be regarded as a common issue. I am not persuaded that award coverage should be dealt with as a common issue, as it relates to the delineation of coverage between a small number of individual awards. A conference will be convened at the commencement of each award phase to discuss proposals to vary awards, including in relation to coverage. Any coverage issues raised would then be determined as a threshold issue before any other proposed variations are considered.

[12] Parties concerned about coverage should foreshadow their proposals in the form of correspondence and send their correspondence to amod@fwc.gov.au.

[13] The timetable for hearing the initial common issues is set out below:

Time period for the hearing of the common issues

Common Issues

First half 2014

Annual Leave

Second half 2014 (commencing July)

Transitional/sunsetting provisions relating to accident pay, redundancy and district allowances)

Second half 2014 (commencing September)

Part-time employment & Casual employment (commencing September)

First half of 2015

Award flexibility/facilitative provisions
Public holidays

[14] I am conscious that the transitional provisions issue needs to be determined before the end of 2014. To facilitate the determination of this common issue a draft background document will be released in May 2014 setting out the relevant transitional provisions in each modern award; the AIRC decision(s) relating to those provisions and the relevant statutory provisions. A directions hearing in relation to this common issue will be held in the week commencing 2 June 2014. Further details will be provided in due course.

The Next Stage

[15] At the 26 February conference it was clear that although there was broad measure of agreement in relation to the proposed common issues, there were divergent views at to the variations proposed in relation to each issue (i.e. the scope of each common issue). A process will be established to determine the scope of each common issue before the proceedings are referred to a Full Bench. This will be at a time approximate to that outlined in the timeline.

[16] I now invite parties to make submissions in relation to the scope of the annual leave common issue. These submissions should include a draft determination setting out the variation proposed and the list of awards intended to be varied. Any submissions in this regard should be made to amod@fwc.gov.au by 4 pm on Thursday 20 March 2014. An issues paper summarising the submissions in respect to the scope of the annual leave common issue will be released on 25 March 2014 and a conference will be held on 27 March 2014.

[17] Interested parties are invited to provide any comments they wish to make in relation to the issues raised in this draft document to amod@fwc.gov.au by 4 pm on Friday 14 March 2014. A final version of the Statement and Directions will be released on 17 March 2014.

[18] To assist the parties a timeline in relation to the identification and determination of common issues is attached to this document.

PRESIDENT

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Common Issues: Timeline

Date (2014)

Action

7 March

Release of Draft Statement and Directions

14 March

Comments due regarding the Draft Statement and Directions

17 March

Release of final version of the Statement and Directions

20 March

Submissions due regarding the annual leave common issue

25 March

Release of an issues paper on the annual leave common issue

27 March

Conference on the scope of the annual leave common issue

2 April

Release of Statement on the scope of the annual leave common issue and Full Bench constituted

May

Release of a background paper on the transitional provisions common issue

Week commencing 2 June

Directions hearing in relation to the transitional provisions common issue

October

Further common issues conference