Employer Groups Considering Challenge To FWC Decision

Published September 16, 2019 (last updated July 20, 2020) -

Employers are considering challenging a Fair Work Commission decision in court, concerned it will tie up companies in an “unprecedented level of red tape”.

Business groups are concerned that the “annualised salary” clause, which dictates that employers must keep close track of employees’ starting and finishing times, and unpaid breaks, to see if the employee is better off on an annualised salary compared to the relevant modern award.

Attorney General Christian Porter, who also holds the Industrial Relations portfolio, told The Australian that he could understand the concerns of employers. He added that the government may consider intervening in the court proceedings if the Australian Mines and Metals Association (AMMA) launched a legal bid.

“If AMMA pursue a legal challenge to the decision the government would consider carefully whether it would be appropriate to intervene in the proceedings,’’ Porter said.

Business groups are also lobbying the Attorney General to amend the Fair Work Act to override the decision that employers say imposes new onerous timekeeping requirements on companies across a range of industries.

AMMA chief executive Steve Knott called the requirements set out by the annualised salary clause a “regulatory burden time bomb”.

Currently, the clause affects businesses subject to awards in the mining, hydrocarbons, rail, salt, marine towage, oil refining, manufacturing and hospitality industries, as well as private sector clerks.

On considering applying to the Federal Court for judicial review, Knott said that it was a “live option and is heavily supported by AMMA members”.

“We believe the FWC has significantly overstepped its mark in relation to this decision and the prospects of having it overturned are strong,’’ he said.

“Why should a resources employer paying the average industry wage of $2670 per week, be required to undertake daily timekeeping and onerous reconciliation processes when the award rate is $1100?

“This is record-keeping for the sake of record-keeping — it’s bureaucracy gone mad.”

Australian Industry Group chief executive Innes Willox echoed Knott’s sentiments, saying the new clauses were “highly prescriptive and will remove many of the benefits of annualised salary clauses for employers and employees”.

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