FWC Knocks Flexible Part-Time Arrangements on the Head

More Flexible Part-Time Provisions into the Fast Food Award – Application Rejected

“In what appears to be a disappointing – and unexpected – decision for Fast Food sector employers, the Fair Work Commission has rejected an application to insert more flexible part-time provisions into the Fast Food award, despite similar provisions already being inserted into other major awards.”

In what appears to be a disappointing – and unexpected – decision for Fast Food sector employers, the Fair Work Commission (FWC) has recently rejected an application to insert more flexible part-time provisions into the Fast Food award, despite similar provisions already being inserted into major awards covering both the Retail and Restaurant industries and the application being supported by the major industry union, the SDA.

In rejecting the application, the FWC drew attention to the “paucity of evidence regarding the views of actual employees about the proposed flexible part time clause”, as well as ‘the [FWC’s] need to encourage enterprise bargaining’ under the Act, as well as ‘‘the need to promote social inclusion through increased workforce participation’.

FWC Focus on Enterprise Bargaining

The Commission said, “the evidence in these proceedings shows the vast majority of employees in the Major Fast Food Chains are covered by enterprise agreements. Further, a number of those agreements include ‘flexible’ part time provisions. Such enterprise agreements allow part time work provisions to be suitably framed such as to accommodate the employer practices. The demonstrated capacity of the Major Fast Food Chains to enter into enterprise agreements to address what are said to be inflexibilities in the current part time clause is a consideration which also tells against the proposition that the proposed variation is necessary to ensure that the Fast Food Award achieves the modern awards objective.”

Hope for Change?

A glimmer of hope remains in that the FWC decision noted the rejection of the employers’ proposed clause was “not the end of the matter”. “We see merit in the provision of guaranteed minimum hours for part time employees and in the simplification of the requirements attaching to the variation of a part time employee’s agreed regular pattern of work. It is our provisional view that the current award places unwarranted restrictions on the capacity to vary part time hours.

“As to the last matter, the evidence before us suggests that the requirement for the employer and the employee to agree in writing to variations in actual hours before they occur is impracticable and imposes an administrative burden upon employers.”

The decision noted the Commission’s provisional view that it was possible change were warranted to the award provisions requiring written agreement to be recorded before the variation to an employee’s part-time roster can occur, including a a reference to a decision in another award permitting a record to be via a text message or some other electronic means.  P

Currently the award provides that a part-time employee has a minimum engagement of 3 hours, which in most situations would also be the minimum weekly hours the employee could be legally employed for.

The FWC decision provided for a further conference of the award parties to be convened shortly before a single Commissioner, to explore alternative approaches to the drafting of issues the Commission identified as warranting further examination.

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ERS Commentary: Whilst rejecting the proposed variation, the FWC decision did offer some hope for further relief from the current very restrictive provisions, which ER Strategies considers to more suitable for an office environment rather than for a Fast Food business. However, given the FWC’s interpretations of what agreements can pass the so-called BOOT test – the Better-Off-Overall Test – we are also less than convinced that enterprise agreements will become the vehicle for most Fast Food businesses to overcome the restrictive award provisions without significant legislative changes – which in itself is very unlikely in the current political environment.

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