| [2021] FWCFB 6008 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Amendment (Supporting Australia's Jobs and Economic Recovery) Act 2021
cl.48, Schedule 1 of the Fair Work Act 2009
Casual terms award review 2021
(AM2021/54)
Various industries | |
VICE PRESIDENT HATCHER |
SYDNEY, 27 SEPTEMBER 2021 |
Fair Work Amendment (Supporting Australia’s Jobs and Economic Recovery) Act 2021 – casual amendments – review of modern awards – final determinations issued.
[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 (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 has been 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 six modern awards.
[4] This Full Bench was 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.
[5] In statements issued on 3 August 2021 (3 August 2021 statement), 3 6 August 2021,4 11 August 20215 (11 August 2021 statement), 18 August 20216 and 26 August 20217 we outlined provisional views in relation to awards in Groups 1-4. Each statement provided interested parties with an opportunity to provide any responses to these provisional views. Additionally, for some awards, we declined to provide a provisional view and instead called for further submissions regarding particular award clauses.
[6] Where a provisional view was contested, further directions were issued for additional submissions and evidence.
[7] In decisions issued on 20 August 2021, 8 31 August 2021,9 2 September 2021,10 13 September 202111 and 16 September 202112 we confirmed our provisional views and determined the contested matters and matters for which further submissions were called in relation to awards in Groups 1-4. Draft determinations have been published for all Groups and parties have been given an opportunity to comment on those drafts. We have considered all comments provided.
[8] We have decided to vary the Stage 2 awards as set out in the abovementioned decisions, in accordance with the relevant draft determinations, subject to the following outlined amendments. Minor changes such as the insertion of or deletion of full stops or the rewording of determination directions have not been included in the below lists of amendments.
[9] We will also deal with an amendment to the draft determination for the Pastoral Award 2020 (Pastoral Award), discussed further below.
• and Licensed Clubs Award 2020
[10] It has been identified that clause 10.14 of the Registered and Licensed Clubs Award 2020 contains a ‘residual category’ type definition of casual employee as follows:
“10.14 An employee who does not meet the definition of a part-time employee and who is not a full-time employee must be engaged and paid as a casual employee in accordance with clause 11—Casual employees.”
[11] This issue was not identified in the 3 August 2021 statement.
[12] The five-member Full Bench in the July 2021 decision confirmed its provisional view that ‘residual category’ type definitions are ‘relevant terms’ and although they may not be directly inconsistent with s.15A(1), definitions of this type could give rise to relevant interaction difficulties or uncertainty. 13
[13] Accordingly, clause 10.14 will be deleted and the determination has been updated in this regard.
Other amendments
[14] The determinations for the following Group 1 awards have been the subject of minor drafting amendments:
• Broadcasting, Recorded Entertainment and Cinemas Award 2020 14
• Fast Food Industry Award 2010 15
• Hair and Beauty Industry Award 2010 16
• Joinery and Building Trades Award 2020 17
• Live Performance Award 2020 18
• Meat Industry Award 2020 19
• Mobile Crane Hiring Award 2020. 20
Security Services Industry Award 2020
[15] It has been identified that clause 2 in the Security Services Industry Award 2020 contains an outdated reference to the Divisions comprising the National Employment Standards. This issue was not identified in the 11 August 2021 statement. As outlined in the July 2021 decision, such provisions are not ‘relevant terms’ but can be updated by the Commission exercising its general award variation powers under Part 2-3 of the Act. Under s.160, the Commission can on its own initiative vary modern awards to remove ambiguity or correct error.
[16] As such we will vary the definition of National Employment Standards appearing at clause 2 to insert an additional subclause after paragraph (b) in the extract of s.61 of the Act under the definition of ‘National Employment Standards’ as follows:
“(ba) offers and requests for casual conversion (Division 4A);”
[17] The determination has been updated in this regard.
Timber Industry Award 2020
[18] It has been identified that clause 27.1(d) of the Timber Industry Award 2020 contains a reference to ‘casual worker’. This provision was not dealt with in the 11 August 2021 statement. Given we have determined to insert a definition of ‘casual employee’ into the award, we will replace the reference to ‘casual worker’ appearing in clause 27.1(d) with a reference to ‘casual employee’.
[19] The determination has been updated in this regard.
Other amendments
[20] The determinations for the following Group 2 awards have been the subject of minor drafting amendments:
• Black Coal Mining Industry Award 2010 21
• Transport (Cash in Transit) Award 2020. 22
[21] The determination for the following Group 3 award has been the subject of a minor drafting amendment:
• Wine Industry Award 2020. 23
[22] The determinations for the following Group 4 awards have been the subject of minor drafting amendments:
• CSIRO Enterprise Award 2016 24
• Australian Broadcasting Corporation Enterprise Award 2016. 25
[23] In a decision issued 20 September 2021, 26 we dealt with an issue arising in clause 50.1 of the Pastoral Award. We stated that our provisional view was that:
“(1) Clause 50.1 should be varied in the terms set out in [Deputy President Easton’s correspondence]. This variation will remove the inconsistency identified in the July 2021 decision. This variation will be made in addition to the variations to the Award contained in the draft determination published on 22 July 2021 and confirmed by the Full Bench in its Statement issued on 23 August 2021.
(2) The further variation proposed by the NFF should not be made. Both parties agreed, and we accept, that the possibility of a non-casual employee being employed in any of the categories specified in clause 50.1 is remote. If any party considers that there is a real prospect of non-casual employees being engaged in any of those categories, an application may be made to vary the award to provide for specific non-casual rates of pay. It is not within the scope of this review, legally or practically, to undertake such a task.” 27
[24] We invited any interested party who wished to file submissions in opposition to this provisional view by 23 September 2021. No submissions were received by this deadline.
[25] We confirm our provisional view and clause 50.1 will be varied to provide as follows:
“50.1 The minimum rates of pay provided for in clauses 51.1 to 51.6 will apply to casual employees engaged for work in a shed, other than Woolclassers and Shearing shed experts, in one or more of the following categories:
• Shearer;
• Crutcher;
• Shed hand;
• Woolpresser; or
• Shearing cook.
A composite of these categories may apply where the employee has mixed functions, except Shearers.”
[26] We are satisfied that the variation is necessary to achieve the modern awards objective in s.134(1) of the Act. The variation will be incorporated into the final determination for the Pastoral Award published together with this decision.
[27] A total of 155 modern awards were reviewed as part of the Casual Terms Review. Four of these awards will not be varied. 28
[28] In a statement issued 23 August 2021, 29 the Full Bench indicated that it had decided to vary the Stage 1 priority awards in accordance with the relevant draft determinations and that determinations varying those awards would be made on 27 September 2021.
[29] In line with the decisions referenced above, variation determinations for 151 awards will be issued in conjunction with this decision. The operative date for the variations is 27 September 2021.
VICE PRESIDENT
Printed by authority of the Commonwealth Government Printer
<PR734162>
13 [2021] FWCFB 4144 at [76]-[77].
14 Additional item inserted to delete heading of clause 13.8(d) ‘Engaged by the week in a serial drama or serial comedy’ and insert new heading ‘Weekly rates in a serial drama or serial comedy’.
15 At item 1, deleted incorrect reference to clause 3 and inserted clause 3.1 reference.
16 At items 1 and 2, deleted incorrect reference to clause 3 and inserted clause 3.1 reference.
17 Additional item inserted to delete reference to clause 12.10 from the list appearing in clause 7.2; additional item inserted deleting clause 11.7.
18 At item 2, the word ‘casuals’ is replaced with ‘casual employee’; at item 4, the word ‘casual’ is replaced with ‘casual employee’.
19 At item 4, the words ‘paid personal leave’ are deleted and replaced with ‘paid personal/carers leave’.
20 Additional item inserted to delete reference to clause 9.7(g) from the list appearing in clause 7.2.
21 At item 4, incorrect reference to dispute resolution clause number corrected to reference clause 9.
22 Additional item inserted to insert the word ‘and’ after the semicolon in renumbered clause 11.2(b).
23 Additional item inserted to include definition of regular casual employee at clause 2.
24 At item 5, new clause to be inserted will be numbered 6.6(g) rather than 6.7.
25 At item 1, the definition of casual has been altered to fit into the table in clause 3.1.
27 Ibid at [7].