Section 156 of the Fair Work Act 2009 (Cth) (FW Act) provides that the Commission must conduct a four yearly review of modern awards (the Review). The Commission’s task in the Review is to decide whether a particular modern award achieves the modern awards objective. If it does not then it is to be varied such that it only includes terms that are ‘necessary to achieve the modern awards objective’ (s.138).
As part of the Review, various employer bodies made applications to vary the penalty rates provisions in a number of modern awards in the hospitality and retail sectors. These applications have been heard together.