4 yearly review of modern awards—Award flexibility

[2016] FWCFB 6887

FAIR WORK COMMISSION

STATEMENT AND DIRECTIONS

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

4 yearly review of modern awards—Award flexibility
(AM2014/300)

JUSTICE ROSS, PRESIDENT
DEPUTY PRESIDENT KOVACIC
COMMISSIONER LEE

MELBOURNE, 26 SEPTEMBER 2016

4 yearly review of modern awards - common issue - award flexibility - time off instead of payment for overtime.

1. Introduction

[1] This Statement finalises the directions in relation to seven awards which have been the subject of award specific submissions opposing the variation of an award to insert the model time off instead of overtime (TOIL) term. Draft directions were attached to a Statement 1 issued on 14 September 2016 and interested parties were given until 4pm Wednesday 21 September 2016 to comment on those draft directions. No comments were received and the directions below are consistent with the draft directions previously published.

2. Directions

[2] Draft variation determinations in respect of the following awards have been published on the Commission website:

(i) Broadcasting and Entertainment Award 2010;
(ii) Social, Community, Home Care and Disability Services Award 2010; and
(iii) Clerks-Private Sector Award 2010

[3] Interested parties will have until 4pm Wednesday 19 October 2016 to comment on the terms of the draft variation determinations and the Full Bench’s provisionally expressed view that these awards be varied to insert the model TOIL term. Following this consultation process the Full Bench will make a decision on the final form of the determinations varying these awards on the basis of the material filed without a further hearing.

[4] A draft variation determination in respect of the Medical Practitioners Award 2010 has been published on the Commission website reflecting the Full Bench’s decision at paragraph [17] of its Statement of 14 September 2016. Interested parties will have until 4pm Wednesday 19 October 2016 to comment on the terms of the draft variation determination. Following this consultation process the Full Bench will make a decision on the final form of the determination varying this award on the basis of the material filed without a further hearing.

[5] In relation to the Journalists and Published Media Award 2010, the Pastoral Award 2010 and the Horticulture Award 2010

(i) those opposed to the variation of these awards to insert the model TOIL term are to file further submissions and evidence in support of their position by 4pm Wednesday 26 October 2016.

(ii) Any submission and evidence in reply is to be filed by 4pm Wednesday 16 November 2016.

(iii) A hearing in respect of these awards will take place at 9:30am on Monday 5 December 2016 in Sydney. Any requests for video links should be made to chambers.ross.j@fwc.gov.au by close of business on Wednesday, 30 November 2016.

[6] Liberty to apply is granted generally.

[7] All material should be sent to amod@fwc.gov.au

PRESIDENT

1 [2016] FWCFB 6591

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involves the 4 yearly review of modern awards and the issue of award flexibility, specifically the insertion of the model time off instead of overtime (TOIL) term in several awards. The Full Bench of the Fair Work Commission, consisting of Justice Ross as President, Deputy President Kovacic, and Commissioner Lee, was tasked with reviewing these awards and making the necessary determinations. The decision was handed down in Melbourne on 26 September 2016.

The central legal issue before the court was whether to vary the specified awards to include the model TOIL term. This issue arose from submissions opposing the variation, and the court had to decide whether to proceed with the insertion of the TOIL term in these awards. The court also needed to determine the process for handling the submissions and evidence, including setting deadlines for further submissions, replies, and scheduling a hearing for certain awards.

The court reasoned that draft variation determinations should be published for the Broadcasting and Entertainment Award 2010, the Social, Community, Home Care and Disability Services Award 2010, and the Clerks-Private Sector Award 2010, allowing interested parties until 19 October 2016 to comment on the terms. For the Medical Practitioners Award 2010, the court published a draft variation determination based on its previous decision, also giving interested parties until 19 October 2016 to comment. For the Journalists and Published Media Award 2010, the Pastoral Award 2010, and the Horticulture Award 2010, the court required further submissions and evidence by 26 October 2016, replies by 16 November 2016, and scheduled a hearing for 5 December 2016 in Sydney.

The final orders of the court included the publication of draft variation determinations for certain awards, setting deadlines for submissions and comments, and scheduling a hearing for others. Liberty to apply was granted generally, and all material was to be sent to amod@fwc.gov.au.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established