For Official Use Only
Dear Mr Chahal
 
Thank you for your email below to the Department of Employment (the
department), seeking access to documents about mandatory penalty rates in
the hospitality and nursing industries under the Freedom of Information
Act 1982 (Cth) (FOI Act). Specifically, you have requested access to:
 
“Any correspondence, policy documents, analysis, file notes or discussions
relating to the mandatory penalty rates in the Hospitality and Nursing
industry under the Fair Work Act as well as the effects it has on
employment opportunities and business trading hours.  The information
requested is for the time period between March 31, 2014 and February 15,
2015”.
 
The scope of your request is very broad and covers a large number of
documents held by the department. In particular, documents relating to the
Hospitality Industry (General) Award 2010, Fast Food Industry Award 2010,
Restaurant Industry Award 2010 and Nurses Award 2010 fall within the scope
of your request as it is currently framed, and further clarification is
required.
 
On this basis, I am writing to notify you of my intention to refuse your
request as a practical refusal reason under subsection 24AA(1) of the FOI
Act exists. However, before making a decision to refuse your request, the
FOI Act provides an avenue by which I am able to assist you to revise the
scope of your request so that the practical refusal reason no longer
exists. This is known as a consultation period.
 
The consultation period gives you 14 days to contact me and make
submissions in support of your request as currently worded, or to make a
revised request so that the practical refusal reason no longer exists. You
may also decide to withdraw your request. If you do not contact the
department within this 14 day consultation period, your FOI request will
be taken to have been withdrawn (s 24AB(7) of the FOI Act).
 
To assist you in revising the scope of your request, please find below
links to publicly available information containing analysis and history of
penalty rates in modern awards. This information has been provided by a
range of organisations (including employers and their representatives and
unions) and governments:
 

* Fair Work Commission ([1]www.fwc.gov.au) – in particular:

* Modern Awards Review 2012 (available now) – both the [2]Nurses Award
2010 and the [3]Hospitality Industry (General) Award 2010 were
considered as individual awards during this review. In addition, a
dedicated Full Bench was convened to consider applications to vary
[4]Penalty Rates in multiple modern awards, including the Hospitality
Industry (General) Award 2010.
* 4 Yearly Review of Modern Awards (available from April 2015) – this
review is currently being undertaken by the Fair Work Commission. Each
modern award will be considered by a Full Bench, including the
[5]Nurses Award 2010 and the [6]Hospitality Industry (General) Award
2010. A dedicated Full Bench has also been convened to consider
[7]Penalty Rates in nine modern awards, including the Hospitality
Industry (General) Award 2010, with hearings currently scheduled for
the second half of 2015.

* Productivity Commission review of the workplace relations framework
([8]www.pc.gov.au/inquiries/current/workplace-relations)   

* The Productivity Commission released [9]five issues papers on 22
January 2015. In Issues Paper 2 on safety nets, the Productivity
Commission sought information on a range of matters, including the
National Employment Standards, the modern award system and penalty
rates. Comments and submissions will be published on the Productivity
Commission’s website (after submissions close on 13 March 2015).
* The Productivity Commission will release a draft report in July 2015
and provide a final report to the Australian Government in November
2015.

 
I encourage you to contact me within the consultation period so that I can
assist you with your request. I can be contacted directly on (02) 6240
7310 or via email at [10][email address]
 
Yours sincerely
 
Tegan Farrelley
Information Law, Practice Management and Corporate Advising Branch
Australian Government Department of Employment
[11][email address]
 
 

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