Fair Work Act 2009

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

Review of part-time provisions in certain modern awards

Matter on the Commission's own initiative - review of part-time provisions in certain modern awards - provisional list of issues- proposed research program - further directions.

[1] This matter has been commenced by the Commission on its own initiative pursuant to s 157(3)(a) of the Fair Work Act 2009 (Cth). The background to this matter, including the scope of the review and our provisional views as to the issues which should be the subject of consideration in the review, were set out in our statement dated 24 July 2025 (July Statement).[1] The July Statement invited interested parties to file submissions in response to the provisional views expressed in the July Statement, and the Commission has received now submissions from a range of interested parties.

[2] On 3 September 2025, the Presiding Member held a directions hearing to hear from the parties as to the next steps to be taken in the review, including as to any research to be undertaken by the Commission. The hearing was attended by the following parties:

• Australian Business Industrial and NSW Business Chamber (ABI and BNSW)

• Australian Chamber of Commerce and Industry (ACCI)

• Australian Childcare Alliance

• Australian Council of Trade Unions (ACTU)

• Australian Industry Group (Ai Group)

• Australian Manufacturing Workers' Union (AMWU)

• Australian Nurses and Midwifery Union

• Australian Retailers Association

• Australian Services Union

• Clubs Australia

• Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia

• Construction, Forestry and Maritime Employees Union

• Master Builders Australia

• Shop, Distributive and Allied Employees Association

• The Pharmacy Guild of Australia (PGA)

• Timber, Furnishing and Textiles Union

• United Workers Union.

[3] The parties made a variety of submissions about the procedural path forward, including in relation to any research to be undertaken.

[4] We note that in some of the submissions filed, parties considered that they were required to give a "yes or no" answer in response to question 7: 'Should other aspects of part-time employment be considered?' We had rather intended that, in response to this question, parties should identify any additional issues which they consider should be dealt with in the review. To ensure that all parties are given the opportunity to propose any additional issues, parties may file a supplementary response to question 7 by 4:00 pm (AEST) on Friday, 26 September 2025. Once we have received these further submissions, we will make a determination as to the issues to be considered in the review.

[5] Once this determination has been made, we will commence a process of consultation with parties about research to be undertaken, or commissioned, by the Commission. In order to facilitate interested parties commencing consideration of the research which should be undertaken, we attach a research options paper prepared by the Commission's Labour Standards Support Branch (Attachment A).

[6] We will issue a further statement about the procedural course to be taken in this review in due course, which will address the remainder of the matters raised by parties at the hearing on 3 September 2025.

Proposal 1 - History of part-time provisions and case law

Commission staff would prepare a research paper setting out the historical development of part-time employment in awards generally, including significant case law, and individual histories of part-time employment provisions in each of the 11 identified awards.

The research would identify the way part-time employment (and interrelated) provisions have changed over time and any relevant gender-based considerations. The research would also provide background and context to current part-time employment provisions, including differences in provisions between industries and occupations, and identify changes in these provisions over time.

Commission staff would compile a research reference list covering academic and industry research on part-time employment. It is proposed that the research be confined to Australian and/or other OECD countries so that the literature offers the most relevant findings.

Proposal 3 - Part-time employment data profile

Commission staff would prepare a data profile for part-time employees in the relevant industries and/or occupations covered by the 11 modern awards. This data profile would present available statistical information only. Data sources may include the Employee Earnings and Hours (EEH) survey, Characteristics of Employment (COE) surveys, the Census, and relevant information from the Household, Income and Labour Dynamics in Australia (HILDA) survey. Data will identify the demographic, industry and other characteristics of part-time employees.

Proposal 4 - Survey(s) of employers and employees covered by the 11 modern awards

The Commission would engage an external research provider to collect data from employers and employees covered by one or more of the 11 modern awards. Research would be conducted by a third party to ensure robust, independent analysis within an identified timeframe. Research would be quantitative, with the potential for additional qualitative responses. The employer and employee data would not be linked. The form of questions and the survey design will be determined by the contracted supplier, informed by engagement with the parties and Commission staff. This research could have a focus on the following key areas, with the ability to add or refine areas once the list of issues within scope of the matter are confirmed:

• Employer and employee characteristics including:
  • location (state, regional, metropolitan)
  • age group, gender, working status (i.e casual, fixed term, permanent)
  • business size and/or revenue
  • ANSZIC industry (or equivalent).

• What, if any, part-time employment policies employers have in place

• Typical minimum hours offered to part-time employees

• Frequency and quantum of additional hours being offered and/or accepted

• Scheduling patterns for part-time employees (e.g. number of hours per week; number of hours worked per week that are permanent; average numbers of hours worked in addition to permanent roster/schedule; etc.)

• Changeability of scheduling patterns, including start/finish times, and the nature of these changes (e.g. employee/employer initiated; by agreement; etc.)

• Employee and employer reasons for part-time employment and preferences to retain or change arrangements

• Benefits employers and employees identify from part-time employment (e.g. flexibility, employee retention, employee wellbeing, productivity; etc.)

• Impediments and challenges employers and employees identify from part-time employment (e.g. operational constraints, job design limitations)

[1] [2024] FWCFB 155.

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