(a) Clubs Award
In Chapter 7.3.6 (of the Penalty
Rates Review) the Full Bench
concluded that Clubs Australia
Industrial (CAI) has not established
a merit case sufficient to warrant
the variation of the Clubs Award and
also expressed the view that there
are 2 options in respect of the future
conduct of the penalty rates review
of the Clubs Award:
Option 1: determinations could be
made revoking the Clubs Award
and varying the coverage of
the Hospitality Award so that it
covers the class of employers and
employees presently covered by
the Clubs Award. Such a course
would obviously avoid the need for
any further Review proceedings in
respect of the Clubs Award.
Option 2: CAI and any other
interested party could be provided
with a further opportunity to
advance a properly based merit
case in support of any changes they
propose in respe
ct of weekend penalty rates.
At [paragraph 1000] the Full
Bench expressed the provisional
view that Option 1 has merit and
warrants further consideration. The
Full Bench proposes to provide an
opportunity for interested parties
to express a view as to the future
conduct of this aspect to these
proceedings and, in particular,
we invite submissions on the two
options set out above.
Short submissions setting out the
position of the interested party were
to be filed by 4.00 pm Friday, 24
March 2017. The matter is listed for
mention on Tuesday, 28 March 2017.
Of the eight modern awards in Group
4F, and of the remaining 114 modern
awards across all other Groups,
none have been reviewed within the
legislated timeline. It has taken four
long years of submissions, ongoing
review along with lengthy delays
to gain very little progress for the
Registered and Licenced Clubs
Award 2010 review to get to this
point.
It is this slow, labour intensive and
unrealistic process that has resulted
in the Minister for Immigration and
Border Protection, The Hon. Peter
Dutton to introduce on 1st March
2017, the Fair Work Amendment
(Repeal of 4 Yearly Reviews and
Other Measures) Bill 2017 into the
House of Representatives in order
to improve Australia’s workplace
relations system.
This Bill will:
•
•
•
Repeal the requirement for
four-yearly reviews of the
modern award
Provide the Fair Work
Commission the ability to
overlook minor or technical
procedural errors made during
enterprise bargaining, where
it is satisfied that an error of
defect is not likely to have
disadvantaged employees; and
Provide for greater scrutiny of
the performance and conduct
of Fair Work Commission
members, which will improve
accountability and strengthen
public confidence in this
institution.
The Bill is a response to
recommendations from the
Productivity Commission’s inquiry
into the workplace relations
framework, as well as by the
report of inquiry into matters into
concerning former Vice President
Michael Lawler of the Fair Work
Commission which was carried out
by the Hon Peter Heery AM, QC.
If passed, this Bill would repeal the
legal requirement for the Fair Work
Commission to conduct 4 yearly
reviews of each of the modern
awards which are legislated to
commence again in January 2018.
On the other hand, without this
legislation being passed, how can
a new review process practically
commence in 2018, when the review
process which commenced in 2014
is still such a long way from being
completed.
With this bill, the government is
continuing to implement common
sense reforms to the workplace
relations system to reduce
complexity and costs.
There is broad support for reforms
to repeal four-yearly reviews. In
November 2016, the Australian
Council of Trade Unions, the
Australian Chamber of Commerce
and Industry, and the Australian
Industry Group jointly wrote to the
Minister of Employment, asking
the government to abolish these
reviews.
Abolishing the reviews is also
consistent with the recommendation
8.1 of the Productivity Commission’s
inquiry into the workplace relations
system. The commission found that
the reviews are ‘hugely resource
intensive for all involved’.
To ensure an appropriate transition
period, the bill will allow the current
four-yearly review to conclude in a
timely manner under the existing
framework. Importantly it will
remove the requirement for a new
review to commence in January
2018.
“For all employees covered
under the Hospitality
Industry (General) Award
2010 (the Hospitality
Award) or the Restaurant
Industry Award 2010 (the
Restaurant Award), will
see a reduction to penalty
rates for weekends and
Public Holidays.”
What to
expect next…
May – Comment from the Fair
Work Commission in relation to
the Registered and Licenced Clubs
Award following submissions made
in March 2017
June – Proclamation of the Fair
Work Amendment (Repeal of 4
Yearly Reviews and Other Measures)
Bill 2017
There is finally momentum gathering
around the award process, however,
at the time of writing, there is no
finalisation of the process outlined
in this article.
By Peter Cooper – Senior Industrial
Relations Advocate and Peta Imber –
IR & Compliance Advisor
IQ 41