It has been more than two years since modern award penalty rates were identified as an issue for review by the Fair Work Commission (FWC) and there is still no ruling from the FWC Full Bench as to whether penalty rates in the hospitality and retail industries will change or remain the same. Interested parties had hoped to have a decision in October this year, but recent developments mean that a decision is more likely to be months away.
Back in January 2014, the FWC commenced its four yearly review of modern awards as required by s156 of the Fair Work Act 2009 (Cth). At that time, penalty rates were flagged as an issue for review, particularly in the hospitality and retail industry modern awards. It was put forward by a number of employer groups that the penalty rates on weekends and public holidays are too high and that changes in contemporary patterns of work mean that penalty rates should be reviewed and potentially reduced.
Consequently, the FWC commenced the Penalty Rates Case which is reviewing the penalty provisions of the following modern awards:
At the beginning of the process, the FWC Full Bench set down a timetable that proposed hearing dates and set deadlines for interested parties to file materials. Since the filing of initial materials in the first half of 2015, the timetable for the Penalty Rates Case has blown out considerably.
According to the FWC, over 450 submissions and witness statements have been filed in the Penalty Rates Case, with more to come. As it has reviewed the materials filed by the parties, the FWC Full Bench has sought clarification on particular points and directed parties to file further submissions. It has also afforded other parties the opportunity to respond to those further submissions. This effort to be as transparent and fair as possible has repeatedly extended the duration of the case.
The most recent extension of the timetable was the result of updates to some of the FWC’s own statistical reports. The reports were previously updated in January and March 2016 but have been updated again for consideration by the parties. Consistent with its transparent and fair approach, the FWC Full Bench has invited parties to make submissions on the updated reports until 28 October 2016.
Given that the FWC Full Bench intends to consider the reports and any submissions in its deliberations, this latest development means that a decision is not likely in the short term.
We will keep readers updated as the Penalty Rates Case progresses.
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