20 Feb THE FOUR YEARLY REVIEW – WHERE IS IT AT?
The Fair Work Commission (“FWC”) President Justice Iain Ross has released a statement on the progress of the Four Yearly Review and its expected finalisation date.
The Review has been carried out in three stages – an initial stage, a common issues stage, and an award stage. During the initial stage, the Full Bench dealt with preliminary jurisdictional matters and identified a number of common issues to be addressed by the Review, including annual leave, facilitative provisions, family and domestic violence leave, and part-time employment. Throughout the review, determinations on “common issues” were published and applied to most modern awards, if not all. The Full Bench commenced the award stage by examining the provisions of all modern awards to ensure they did not conflict with the Fair Work Act 2009 (Cth) (“FW Act”) or the National Employment Standards.
Interested parties were invited to submit claims to make substantive changes to modern awards, and comment on technical or drafting matters. Substantive claims have been considered by separate Full Benches and determinations have been made on whether the proposed change “is necessary for the award to meet the modern awards objective”. There are still a number of Full Benches hearing substantive claim matters, but the majority of technical and drafting matters have already been finalised.
Exposure drafts of modern awards have been published regularly throughout the Review, allowing parties to view the effect of common issue determinations, substantive claim determinations and proposed structural changes. Three applications have also been made to create new modern awards for the traffic management industry, helicopter crews and Norfolk Island.
- The FWC has released a timeline for the publication of updated exposure drafts and submission deadlines in 2019.
- Republication of exposure drafts will incorporate changes resulting from any substantive claims, common issue determinations or any other relevant matters considered throughout 2019.
- Interested parties will have three opportunities to comment on updated exposure drafts in 2019.
- Parties have been reminded, however, that commentary and submissions relating to exposure drafts is restricted to updates only. “It is not an opportunity to reargue matters that have already been determined by the Commission throughout the Review.”
- Exposure drafts are set to be finalised and issued as a new consolidated award by October 2019.
Employers and Employees should also be aware that on 5 December 2018 parliament enacted the Fair Work Amendment (Repeal of 4- Yearly Reviews & Other Measures) Bill 2017 (Amendment Bill). The Amendment Bill amends the FW Act by abolishing the requirement to conduct 4-yearly reviews of modern awards from 1 January 2018 onwards. A report by the Productivity Commission found that the “4-yearly reviews placed substantial demands on parties and the process does not meet the Fair Work Act’s objective to create a simple, easy to understand and sustainable award system”. The current review will continue as expected and all modern reviews that commenced prior to 1 January 2018 will be finalised. Moving forward, the Fair Work Commission will have power to review, amend and revoke modern awards under section 157 of the FW Act.
The Amendment Act allows for all modern award reviews that commenced prior to 1 January 2018 to be finalised. The Fair Work Commission still has the power to review, amend and revoke modern awards under Section 157 of the FW Act.
Staying up to date with changes to modern awards can be a challenge! If you would like more information on the proposed changes to the modern award regulating your industry, please contact HR Law.
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