[2021] FWCFB 5153

The attached document replaces the document previously issued with the above code on 20 August 2021.

Medium neutral citation at footnote 1 corrected.

Associate to Vice President Hatcher.

23 September 2021.

Fair Work Amendment (Supporting Australia's Jobs and Economic Recovery) Act 2021
cl. 48 of Schedule 1 of the Fair Work Act 2009

Casual terms award review 2021
(AM2021/54)

Fair Work Amendment (Supporting Australia’s Jobs and Economic Recovery) Act 2021 – casual amendments – review of modern awards – Stage 2, Group 1 awards – provisional views confirmed.

[1] On 27 March 2021 the Fair Work Act 2009 (Cth) (Act) was amended by Schedule 1 to the Fair Work Amendment (Supporting Australia’s Jobs and Economic Recovery) Act 2021 (Cth) (Amending Act). The amendments included introducing a definition of ‘casual employee’ in s.15A of the Act and casual conversion arrangements in Division 4A of Part 2-2 of the Act.

[2] The Amending Act inserted additional application, savings and transitional provisions into Schedule 1 of the Act. The newly inserted cl.48 of Schedule 1 to the Act requires the Fair Work Commission to conduct a review (Casual Terms Review or Review) and vary modern awards where necessary to remove inconsistencies, difficulties or uncertainties caused by the amendments to the Act.

[3] The Casual Terms Review is being conducted in 2 stages. As part of Stage 1, a five-member Full Bench issued a decision 1 (July 2021 decision) that considered the nature and scope of the Review and reviewed ‘relevant terms’ (as defined in cl.48) in an initial group of 6 modern awards.

[4] This Full Bench has been constituted to review the remaining modern awards which have been divided into 4 groups as part of Stage 2 of the Review. The groups are set out at Attachment A to our statement 2 of 3 August 2021 (August 2021 statement).

[5] In the August 2021 statement, taking into account the reasoning and conclusions in the July 2021 decision, we expressed provisional views in respect of each of the Group 1 awards in Stage 2 of the Review, with the exception of the Meat Industry Award 2020. 3 Interested parties were directed to provide any responses in relation to our provisional views by Tuesday, 10 August 2021.

[6] The Commission received 16 submissions from parties in response to the August 2021 statement. In the submissions, our provisional views regarding the following clauses were opposed:

•  Broadcasting, Recorded Entertainment and Cinemas Award 2020; cl.11.6

•  Building and Construction General On-site Award 2020; cl.12.1, cl.13

•  Electrical, Electronic and Communications Contracting Award 2020; cl.11.5

•  Food, Beverage and Tobacco Manufacturing Award 2020; cl.10.8-10.9

•  Joinery and Building Trades Award 2020; cl.12

•  Mobile Crane Hiring Award 2020; cl.9.7

•  Plumbing and Fire Sprinklers Award 2020; cl.12.4

[7] While the Commission received submissions opposing our provisional views in relation to these specific clauses in the 7 awards listed above, the remainder of our provisional views in relation to these 7 awards were not contested. We confirm the uncontested provisional views in the abovementioned awards.

[8] Directions 4 for the filing of further materials in relation to the contested clauses in the abovementioned awards have been issued.

[9] Additionally, we confirm the provisional views expressed relating to the remaining 30 Group 1 awards, which were not contested. These awards are listed at Attachment A to this decision.

[10] In each case where a variation to the award is required, we are satisfied that the variation is necessary to achieve the modern awards objective in s.134(1) of the Act.

[11] Draft determinations varying the 30 remaining Group 1 awards in accordance with our confirmed views will be issued with this decision. Interested parties are to provide any comment on the draft determinations by 5PM (AEST) FRIDAY, 27 AUGUST 2021.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR733000>

Attachment A

 1   [2021] FWCFB 4144

 2   [2021] FWCFB 4714

 3   Separate directions were issued in respect of the Meat Industry Award 2020

 4   Directions, 17 August 2021