| [2020] FWCFB 1827 |
| FAIR WORK COMMISSION |
STATEMENT |
Fair Work Act 2009
s.156 - 4 yearly review of modern awards
4 yearly review of modern awards
(AM2019/17)
JUSTICE ROSS, PRESIDENT |
MELBOURNE, 7 APRIL 2020 |
4 yearly review of modern awards – finalisation of Exposure Drafts and draft variation determinations
[1] This full bench is dealing with the finalisation of exposure drafts produced during the 4 yearly review of modern awards. In a decision issued on 2 September 2019, we outlined the finalisation process and divided awards into 3 tranches for this purpose. 1
[2] During the process for finalising awards in tranche 1, we said:
If any of the 32 modern awards which we propose to vary is the subject of another variation determination between the publication of the variation determinations arising from this decision (on 25 November 2019) and when those variation determinations commence operation (on 4 February 2020), a conference will be convened to provide all parties interested in the affected award with an opportunity to be heard in relation to the appropriate course of action. 2
[3] No conferences were required for tranche 1 awards.
[4] This statement deals with the process of implementing subsequent variation determinations in tranches 2 and 3 where we have issued a final variation determination for an award as part of the finalisation of technical and drafting matters but it is not yet operational.
[5] In a decision issued on 24 December 2019 (December 2019 Decision) 3 we decided that variation determinations for 14 uncontentious awards in Tranche 2 will commence operation on 13 April 2020. We also decided that the remaining Tranche 2 variation determinations (in relation to contentious awards) will commence operation on 4 May 2020.4
[6] Final variation determinations were issued on 14 February 2020 for 31 of the 39 modern awards in Tranche 2. Further draft determinations for 7 of the remaining awards were published for comment in February 2020. 5
[7] In the December 2019 Decision we said that we would follow the same process as we had followed for tranche 1, that is, if any of the contentious awards in Tranche 2 is the subject of another variation determination between the publication of the variation determinations (issued on 14 February 2020) and when those variation determinations commence operation, a conference would be convened to provide all parties interested in the affected award with an opportunity to be heard in relation to the appropriate course of action. 6
[8] The implementation of any subsequent variations into final variation determinations is an administrative process, as the issues giving rise to the subsequent variation determinations have already been determined by a substantive issues Full Bench. Consequently, and having regard to the workload pressure on all parties arising from the COVID-19 pandemic we will no longer hold conferences in relation to the implementation of subsequent variation determinations in the final variation determinations of any modern award.
[9] The final variation determinations of Tranche 2 and Tranche 3 modern awards will incorporate all variation determinations that are issued prior to the operative date of the respective final variation determinations. For Tranche 2 awards, we will issue a correction to our earlier determination to incorporate any subsequent determinations.
[10] The final variation determinations of the following Tranche 2 awards will be amended to implement the determinations set out below:
• Gas Award 2010 – a determination in relation to clause 9.1 will be issued and operate from 1 May 2020 7
• Architects Award 2010 – a determination amending various clauses was issued on 26 March 2020 and will operate from 4 May 2020 8
• Air Pilots Award 2010 – determinations issued on 14 and 21 February 2020 amending and inserting various clauses commenced operation on 21 and 28 February 2020, respectively 9
[11] Any determinations made by the Full Bench in AM2020/12 will also be inserted into each of the relevant Tranche 2 and 3 awards prior to the operative dates.
PRESIDENT
Printed by authority of the Commonwealth Government Printer
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2 [2019] FWCFB 7173 at [216].
4 [2019] FWCFB 8569 at [12] and [395]-[402].
5 [2020] FWCFB 690 at [94]-[95]. Note that a final variation determination is yet to be issued for the Pastoral Industry Award 2010.
6 [2019] FWCFB 8569 at [402].
7 See [2020] FWCFB 1602.