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

4 yearly review of modern awards
(AM2014/196, AM2014/197 and others)

4 yearly review of modern awards—additional common issues—part-time employment—casual employment.

Background

[1] Under s.156 of the Fair Work Act 2009 (the Act) the Fair Work Commission (the Commission) is required to review all modern awards every four years.

[2] In the statement issued on 17 March 2014 1 the Commission stated that the Review would comprise an Initial stage, dealing with jurisdictional issues, a Common issues stage and an Award stage. A Full Bench decision was issued on 17 March 20142 determining a number of jurisdictional issues and defining the scope of the first 4 yearly review of modern awards (the Review). This Statement deals with the Common issues stage.

[3] In the 17 March 2014 statement 3, the Commission identified a number of common issues to be dealt with as part of this Review:

• annual leave (AM2014/47);



• award flexibility/facilitative provisions;



• casual employment (AM2014/197) and part-time employment (AM2014/196);



• public holidays; and



• transitional/sunsetting provisions (AM2014/190).

[4] The part-time employment and casual employment common issues commenced with an initial conference on 29 September 2014. This conference sought to identify the scope and content of these common issues and also provided an opportunity for parties to nominate additional common issues to be dealt with as part of the Review.

Part-time employment and casual employment

[5] Parties at the conference provided a preliminary outline of issues that they may wish to raise in the part-time employment and casual employment common issues. The issues included:

• part-time minimum engagement;



• part-time rostering provisions and patterns of hours;



• part-time overtime provisions;



• casual minimum engagement;



• casual conversion (including the requirement to notify eligible casual employees of their right to elect to convert); and



• restrictions on casual engagement.

[6] The Australian Council of Trade Unions (ACTU) and the Australian Industry Group (Ai Group) advised that they would provide submissions detailing their proposed positions and a list of the awards that are affected within six weeks. A timeline for the provision of submissions is contained at Attachment A.

[7] The Commission encourages both the employer organisations and the employee organisations to collaborate in order to present an agreed position on the scope and content of this common issue and proposed directions for dealing with these issues. A member of the Commission will be made available to facilitate any discussions upon request from the parties.

Additional common issues

[8] In the statement issued on 17 March 2014 the Commission stated that the list of common issues is not closed and that further common issues may be identified as part of the Review. At the 29 September 2014 conference I confirmed that the identification of common issues is an iterative process whereby additional matters may be identified to be dealt with a ‘common issues’ where they affect most or all modern awards and it would be as more efficient use of time and resources to deal with these issues once, rather than on an award-by-award basis.

[9] Australian Business Industrial and the New South Wales Business Chamber (together ABI) in their correspondence dated 26 September 2014 seek the inclusion of a new Small Business Schedule in modern awards. The schedule would contain provisions specifically directed towards the needs of micro business employers, being employers who employ a total of fewer than 5 employees. At the conference ABI stated that the inclusion of such a schedule in approximately 108 of the 122 modern awards should be dealt with as a common issue rather than being dealt with on an award by award basis.

[10] The proposal by ABI currently only outlines the key concepts for the schedule and the Commission considers that if the proposal is to be dealt with as a common issue, it will require a further period of consultation. A member of the Commission will be available to assist with this process.

[11] In correspondence dated 11 June 2014 and 8 July 2014, The Association for Payroll Specialists (TAPS) raised an issue regarding the motor vehicle allowance which appears in over 70 modern awards. It is submitted that the interaction between these rates and Australian Tax Office rates may cause difficulty in payroll processing. A further issue regarding difficulties in processing payroll based on monthly wages was raised in further correspondence dated 28 September 2014. This correspondence outlined issues where an award provides for payment of wages on a monthly basis but does not provide a method of calculating monthly wages. Additionally some awards provide for payment in advance but do not provide a mechanism for recovering overpayment when an employee leaves prior to the completion of the month.

[12] At the conference of 29 September 2014, the ACTU identified the following as issues that they will seek to include in the majority or all common awards:

• a domestic violence clause that relates to leave; and



• a family friendly work clause that supplements NES rights.

[13] The ACTU submitted that they would provide a draft that outlines the nature of these proposals and a list of awards to which the claim applies within a month. They agreed with the Commission proposal that if these matters are to be dealt with as common issues, they should be dealt with together.

[14] The relevant parties will provide further detail of their proposed additional common issues including a list of awards that may be affected in accordance with the timeline at Attachment A.

Conclusion

[15] The Commission is seeking the views of interested persons on whether the proposals in paragraphs 9 to 12 should be dealt with as common issues. All submissions should be sent to amod@fwc.gov.au by 11 November 2014. All material will be published on the 4 yearly review section of the Commission’s website. The Commission will consider the submissions and then issue a draft statement outlining which issues are to be dealt with as ‘common issues’ and also defining the scope of the part-time employment and casual employment common issues.

[16] The Commission’s website will continue to be extensively used throughout the Review. Parties who have not already done so are encouraged to subscribe to the award matters notification service to be kept informed of the progress of this Review.

PRESIDENT

ATTACHMENT A

Timeline – additional common issues, part-time employment and casual employment

 1   [2014] FWC 1790.

 2   [2014] FWCFB 1788.

 3   [2014] FWC 1790.

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