| [2017] FWCFB 1933 |
| FAIR WORK COMMISSION |
STATEMENT AND |
Fair Work Act 2009
s.156 - 4 yearly review of modern awards
(AM2014/305)
JUSTICE ROSS, PRESIDENT | MELBOURNE, 18 APRIL 2017 |
4 yearly review of modern awards – penalty rates – change in terminology.
[1] The Australian Hotels Association and the Accommodation Association of Australia (AHA and AAA) seek the removal of the reference to ‘penalty’ and ‘penalty rates’ in clause 32 of the Hospitality Industry Award 2010 (the Hospitality Award) and the insertion of references to ‘additional remuneration’. A similar variation is proposed by the Pharmacy Guild of Australia (PGA) in respect of the Pharmacy Industry Award 2010 (the Pharmacy Award).
[2] On 23 February 2017, we issued a decision in the penalty rates matter (the Decision). 1 As part of the Decision, we noted that further submissions would be invited from interested parties about the proposal to change terminology in the Hospitality Award and the Pharmacy Award.
[3] The changes proposed appear to be sought on the basis that s.134(1)(da)(iii) of the FW Act speaks of ‘the need to provide additional remuneration for … employees working on weekends’. The changes proposed may also be said to be consistent with the contemporary purpose of ‘penalty rates’. As we mentioned in Chapter 3 of the Decision, the purpose of such rates is not to penalise employers for rostering employees to work at such times, it is to compensate employees for the disutility of working on weekends.
[4] The submissions received to date in respect of the proposed change in terminology are very limited, and as noted in the Decision, the change in terminology proposed is only advanced in respect of 2 modern awards. If changes of the type proposed were to be made then, prima facie, they should be made in all modern awards which currently provide for ‘penalty rates’ (see generally [901]–[906]). It follows that this issue affects a large number of modern awards.
[5] Directions setting out a timetable for submissions are attached to this Statement.
[6] We intend to deal with this matter on the papers unless any party seeks a hearing.
PRESIDENT
[2017] FWCFB 1933
DIRECTIONS |
Fair Work Act 2009
s.156 - 4 yearly review of modern awards
(AM2014/305)
JUSTICE ROSS, PRESIDENT | MELBOURNE, 18 APRIL 2017 |
4 yearly review of modern awards - penalty rates – change in terminology.
Further to the Statement issued on 18 April 2017: 2
1. On or before 8 May April 2017interested parties are to file written submissions and any evidence in support of the proposed change in terminology and are to identify the modern awards in respect of which the change is sought.
2. On or before 8 May 2017interested parties are to file written submissions and any evidence in opposing any proposed change in terminology.
3. On or before 22 May 2017 interested parties are to file any written submissions and evidence in reply.
4. The Full Bench intends to determine this matter on the papers unless an interested party indicates that it seeks a hearing. Such a request should be submitted in writing by 8 May 2017.
5. All material should be sent to amod@fwc.gov.au.
6. Liberty to apply.
PRESIDENT
Printed by authority of the Commonwealth Government Printer
2 [2017] FWCFB 1933
Printed by authority of the Commonwealth Government Printer
<Price code A, PR591624>
- AGLC
- 4 yearly review of modern awards – Penalty rates [2017] FWCFB 1933
- Case
- [2017] FWCFB 1933
- Decision Date
CaseChat Overview and Summary
The legal issues before the Fair Work Commission revolved around the appropriateness and implications of altering the terminology used in the awards from 'penalty rates' to 'additional remuneration'. The associations argued that this change would align with the legislative intent, as section 134(1)(da)(iii) of the Fair Work Act refers to the need for additional remuneration for employees working on weekends. The Commission was required to consider whether such a change would be consistent with the purpose of penalty rates, which is to compensate employees for the inconvenience of working outside standard hours, rather than penalising employers.
In its decision, the Fair Work Commission acknowledged the limited submissions received on the proposed change in terminology. It noted that if changes were to be made, they should logically be applied to all modern awards that currently include 'penalty rates'. The Commission decided to proceed with the matter on the papers, unless any party sought a hearing. The Commission set a timetable for interested parties to file written submissions and evidence either supporting or opposing the proposed change in terminology, with deadlines for submissions and replies. The Commission also reserved the right to apply for further directions as necessary.
The Fair Work Commission issued directions for the submission of written evidence and outlined a timeline for submissions to be filed by interested parties. The decision emphasised that the Commission intended to determine the matter on the papers unless a party requested a hearing. This request had to be made by a specified date, with all submissions and evidence to be sent to the Commission's designated email address. The Commission also noted that parties retained the liberty to apply for further directions if necessary.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.