The Fair Work Commission has today issued directions programming its approach to reviewing and varying modern awards in light of amendments to the passage of the Fair Work Amendment (Supporting Australia's Jobs and Economic Recovery) Act 2021. The FWC has until 27 September 2021 to consider whether a "relevant term" in a modern award, as it relates to casual employees, is consistent with a new definition of casual employee and casual conversion provisions that have been inserted into the Fair Work Act 2009 (the Casual Review).

Where review of a relevant term finds an inconsistency, the FWC must make a determination varying the modern award as soon as is reasonably practicable.

In a Statement issued on 9 April, the President of the FWC confirmed the Casual Review will be conducted in two stages.

In the first stage, a five member Full Bench will consider the nature and scope of the Casual Review and review relevant terms in the:

  • General Retail Industry Award 2020;
  • Hospitality Industry (General) Award 2020;
  • Manufacturing and Associated Industries and Occupations Award 2020;
  • Educational Services (Teachers) Award 2020;
  • Pastoral Award 2020; and
  • Fire Fighting Industry Award 2020.

During a conference on 15 April, the President indicated those awards had been selected because they give rise to the broader spread of issues that might be common in a range of other awards.

The President indicated in the 9 April Statement that issues raised by the review of this initial group of awards are likely to include:

  • Whether existing award definitions of "casual employee" or "casual employment" should be retained or replaced with the new statutory definition;
  • Whether model or award-specific casual conversion clauses should be retained or replaced with the new casual conversion provisions;
  • What types of "relevant terms" that relate to casual employment in modern awards must be considered as part of the Casual Review; and
  • The implications of award variations for existing employment arrangements.

The President has indicated that after its review of the initial group of awards, the 5 member Full Bench will issue a decision and determine the process for the second stage of the Casual Review, during which the remaining modern awards will be divided into groups for review by a 3 member Full Bench.

The FWC has confirmed that interested parties are to file submissions by 24 May 2021 responding to a discussion paper released by the FWC on 19 April. That paper provides initial commentary and raises questions in respect of casual terms in the six modern awards the subject of the first stage of the Casual Review. A hearing has been listed for 24 and 25 June 2021.

We will monitor developments in this space closely, and will provide updates on the Casual Review as and when they occur.

For further information please contact:

Katrina Seck, Senior Associate
Phone: 02 9233 5544

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