Penalty rates to be heard last in award review

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Penalty rates to be heard last in award review

Award penalty rates will be heard in the last group of awards to be determined by the FWC in its four-year review of modern awards.

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Award penalty rates will be heard in the last group of awards to be determined by the Fair Work Commission in its four-year review of modern awards. 

The commission has released a statement noting its progress with the review and the particular issues that are revealing themselves as it commences the “common issues stage” of the review, in particular, looking at issues relating to annual leave and transitional/sunsetting provisions.

A short summary of the main points of the commission’s statement follows:

Award amalgamations


The FWC has already identified six awards that potentially could be combined into three awards. These are: the Professional Diving Industry (Recreational) Award 2010 and Marine Tourism and Charter Vessels Award 2010; the Pharmacy Industry Award 2010 and General Retail Industry Award 2010; and the Clerks—Private Sector Award 2010 and Legal Services Award 2010. It has now identified a further two awards with potential for amalgamation: the Cement and Lime Award 2010 and Quarrying Award 2010. These awards will be reviewed by a Full Bench.

Awards with contested matters


Six other awards have been identified containing substantial contested matters. Two separate Full Benches will hear and determine the contested issues in the following groups of awards:
  • The Meat Industry Award 2010, the Security Services Award 2010 and the Stevedoring Industry Award 2010; and
  • The Textile, Clothing, Footwear and Associated Industries Award 2010, the Timber Industry Award 2010 and the Vehicle Manufacturing, Repair, Services and Retail Award 2010.

Penalty rates


The FWC has already determined that the issue of penalty rates is not a common issue affecting all awards. It has now further determined that awards where penalty rates may be contested will be heard last, so as to allow the parties time to gather evidence to support their claims, and to ensure any phasing in of transitional rates or loadings is complete. The first conference for these “Group 4” awards will be in November this year.

However, the Pharmacy Guild of Australia has already notified the FWC it will be raising penalty rates as an issue in the Pharmacy Industry Award 2010. This award is being dealt with earlier, in Group 2.

Common issues


The FWC notes it will not complete its review of each award until all common issues proceedings have been finalised.

There are a number of identified issues common to all awards (common issues):
  • annual leave
  • award flexibility/facilitative provisions
  • casual employment
  • part-time employment
  • public holidays
  • transitional/sunsetting provisions relating to accident pay, redundancy and district allowances.
In relation to these, the commission has made the following comments:

1. Transitional/sunsetting provisions relating to accident pay, redundancy and district allowances: a number of transitional provisions in awards will not be dealt with as part of the transitional provisions common issue proceedings and that some of these provisions are scheduled to cease operation on 31 December 2014. Any party, therefore, who wants to have a transitional issue heard and determined prior to the end of the transitional period is urged to notify the Commission by email, by 4 pm on Friday, 29 August 2014.
2. Part-time employment and casual employment: an initial conference will commence on Monday, 29 September 2014, dealing with the content of these common issues.
3. Public holidays and the award flexibility/facilitative provisions: the commission will commence proceedings on these common issues in early 2015. It notes that any change arising from the Fair Work Amendment Bill 2014, can be addressed at this time.

Motor vehicle allowance and rate per kilometre


The Association of Payroll Specialists has drawn the commission’s attention to the motor vehicle allowance based on a rate per kilometre contained in over 70 modern awards. It says the interaction between these rates and Australian Tax Office rates may cause difficulty in payroll processing and the commission will discuss this issue at the conference on 29 September 2014.

See: Statement – 4 yearly review of modern awards [2014] FWCFB 5537
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