Four yearly review of modern awards

The Fair Work Commission (the Commission) is conducting  the four yearly review of modern awards as required by the Fair Work Act 2009. The review is to be conducted in stages and the initial stage, concerning the legal framework for the review, has already commenced.

The Commission has announced its decision concerning the legal framework. In summary the decision concludes:

  1. The Commission has power to make determinations varying modern awards and to make or revoke modern awards;
  2. The Review is broader in scope than the Transitional Review of modern awards completed in 2013 although the need to ensure a ‘stable’ modern award system suggests that a party seeking to vary a modern award in the context of the Review must advance a merit argument in support of the proposed variation and probative evidence;
  3. The Commission will have regard to the historical context applicable to each modern award and will take into account previous decisions relevant to any contested issue…previous Full Bench decisions should generally be followed, in the absence of cogent reasons for not doing so. The Commission will proceed on the basis that prima facie the modern award being reviewed achieved the modern awards objective at the time that it was made;
  4. The modern awards objective applies to the Review. The objective is very broadly expressed and is directed at ensuring that modern awards, together with the NES, provide a ‘fair and relevant minimum safety net of terms and conditions’;
  5. In the Review the proponent of a variation to a modern award must demonstrate that if the modern award is varied in the manner proposed then it would only include terms to the extent necessary to achieve the modern awards objective. What is ‘necessary’ in a particular case is a value judgment based on an assessment of the modern award objectives;
  6. There may be no one set of provisions in a particular modern award which can be said to provide a fair and relevant minimum safety net of terms and conditions;
  7. The characteristics of the employees and employers covered by modern awards varies between modern awards. To some extent the determination of a fair and relevant minimum safety net will be influenced by these contextual considerations…the application of the modern awards objective may result in different outcomes between different modern awards;
  8. Determinations varying modern awards arising from the Review will generally operate prospectively.

Since its decision concerning the legal framework the Commission has released a Guide to Award Stage,  Draft Exemplar Awards and comparisons of their provisions. 

The Commission takes an active role in the review. The Guide to Award Stage, for example, suggest scope, based on the Commission’s own research, for amalgamation or disaggregation of awards, such as merging Clerks – Private Sector and Legal Services, while disaggregating Live Performance. 

For more information members should contact the AFEI Hotline on 02 9264 2000.