s.157 - FWC may vary etc. modern awards if necessary to achieve modern awards objective

Review of part-time provisions in certain modern awards

Commencement of new matter on the Commission's own initiative - matter foreshadowed in final report of the Modern Awards Review 2023-24 - review of part-time provisions in certain modern awards - provisional issues to be determined.

• [1] As foreshadowed in the Final Report of the Modern Awards Review 2023-24 (Final Report),[1] the Fair Work Commission (Commission) is commencing a new matter on its own initiative, pursuant to s 157(3)(a) of the Fair Work Act 2009 (Cth) (FW Act), to review provisions regulating part-time employment in 11 modern awards. An Expert Panel has been constituted to conduct this review in accordance with ss 617(8) and 620(1C) of the FW Act.

• [2] The background to the Modern Awards Review 2023-24 (Review) is explained in detail in the Final Report at [1]-[8] and [160]-[167]. In summary, the Review resulted in the Full Bench identifying award provisions which require the Commission's priority attention. The Final Report indicated that the Commission would commence proceedings on its own initiative to consider variations of modern awards in six priority matters. Undertaking a fundamental review of award provisions regulating part-time employment is the sixth and final priority matter.

• [3] In the Final Report, the Full Bench identified that submissions concerning part-time employment were made in the 'job security', 'work and care' and 'making awards easier to use' streams of the Review. Submissions included proposals regarding:

• the varied definitions of part-time employment;
• how provisions impact job security and access to secure work;
• minimum payment periods; and
• proposals for lesser and greater minimum engagement periods.

• [4] The Full Bench also acknowledged the gendered history of part-time employment.[2]

• [5] There was no consensus regarding these proposals. In general, employer organisations sought greater flexibility and greater control over the setting and alteration of employees' hours, while unions focused on greater predictability and employee control over part-time hours.

• [6] As indicated in the Final Report (at [167(6)]), these proceedings will involve:

...a fundamental review of award provisions regulating part-time employment, focused on the seven awards the subject of the 'making awards easier to use' stream. The matters the subject of review will include the establishment of the hours of employment of part-time employees (including the number of hours to be worked, the days upon which work is to be performed, and the starting and finishing times of work), prescribed daily and weekly minimum hours of work, and the circumstances in which and means by which working hours may be altered and additional hours may be worked.

• [7] The Full Bench further outlined that:

Unless there are good reasons for variation in respect of specific industries or occupations, the objective of such a review will be to establish a standard model for part-time employment in place of the variety of provisions which currently exist.

• [8] In addition to the 7 most commonly used awards, which were considered in the 'Making awards easier to use stream' of the Review, 4 other modern awards have been scoped into this review to enable analysis across similar industries and those with varying levels of part-time employment density. Accordingly, these proceedings will consider the following 11 modern awards:

• • Clerks - Private Sector Award 2020 (Clerks Award);[3]
• • Fast Food Industry Award 2020 (Fast Food Award);[4]
• • General Retail Industry Award 2020 (Retail Award);[5]
• • Hospitality Industry (General) Award 2020 (Hospitality Award);[6]
• • Manufacturing and Associated Industries and Occupations Award 2020 (Manufacturing Award);[7]
• • Pharmacy Industry Award 2020 (Pharmacy Award);[8]
• • Building and Construction General On-site Award 2020 (Building Award);[9]
• • Registered and Licensed Clubs Award 2020 (Clubs Award);[10]
• • Social, Community, Home Care and Disability Services Industry Award 2010 (SCHADS Award);[11]
• • Restaurant Industry Award 2020 (Restaurant Award);[12] and
• • Children's Services Award 2010 (Children's Award).[13]

• [9] A background document prepared by Commission staff has been published with this Statement to promote discussion of issues relevant to this review. The background document explores the following matters in respect of the abovementioned modern awards:

• how the award defines part-time employment;
• establishment of hours of employment;
• prescribed daily and weekly minimum hours of work;
• the means by which working hours may be altered; and
• the circumstances in which additional hours may be worked, including when overtime is payable.

• [10] As proceedings have been initiated by the Commission, it is necessary to identify the scope of issues for determination. Our provisional view is that proceedings will consider the following:

(1) Should a standard model for part-time employment (in place of the variety of provisions which currently exist) be established?

(2) How should part-time employment be defined in modern awards?

(3) How should part-time employment be distinguished from casual employment?

(4) How should part-time employees and their employers establish their agreed hours? How should these agreed hours be capable of variation?

(5) Should part-time employment provisions have prescribed daily and/or weekly minimum or maximum hours of work and, if so, what should those minima or maxima be?

(6) Under what circumstances should part-time employees be able to or be required to work additional hours? How will additional hours be authorised and recorded? In what circumstances should overtime penalties be payable?

(7) Should other aspects of part-time employment be considered?

• [11] A new major case webpage has been established on the Commission website for the 'Part-time provisions awards review'. All material related to the case will be published on the major case webpage. Interested parties are encouraged to subscribe to receive updates.

• [12] Interested parties are directed to file submissions addressing the background document and the provisional view as to the scope of issues to be considered in these proceedings by 4:00pm (AEST) on 22 August 2025. Submissions should be sent to awards@fwc.gov.au where they will be published on the Commission's major case webpage.

• [13] A directions hearing is listed in Sydney before the presiding member at 11.00 am (AEST) on 3 September 2025 to consider the next steps to be taken and the timetabling of this case. Parties interested in attending the hearing should email awards@fwc.gov.au by 4:00 pm (AEST) on 1 September 2025 to advise whether they will attend the hearing in person or wish to request to attend by video link using Microsoft Teams. A Notice of Listing is published with this Statement.

[1] Fair Work Commission, Modern Awards Review 2023-24 (Final Report, 18 July 2024).

[2] Fair Work Commission, Modern Awards Review 2023-24 (Final Report, 18 July 2024) at [78]-[80], [83]-[98], [163].

[3] MA000002.

[4] MA000003.

[5] MA000004.

[6] MA000009.

[7] MA000010.

[8] MA000012.

[9] MA000020.

[10] MA000058.

[11] MA000100.

[12] MA000119.

[13] MA000120.

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