1
Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch. 5, Item 6—Review of all modern awards (other than modern enterprise and State PS
awards) after first 2 years
Australian Nursing and Midwifery Federation and others
(AM2012/132 and others)
Various industries
DEPUTY PRESIDENT SMITH MELBOURNE, 30 SEPTEMBER 2013
Modern Awards Review 2012—matters referred to Deputy President Smith—penalty rates
and public holidays.
[1] The Full Bench Modern Awards Review 2012 decisions1 referred the aforementioned
applications to me to hear and determine. The table below identifies the modern awards
concerned and the clauses sought to be varied.
Modern award Clause Penalty/Public
holidays Applicant Matter no.
Fast Food Industry
Award 2010
[MA000003]
26.1(b) and
26.1(c) Penalty National Retail
Association AM2012/240
26.5 Penalty
Baking Industry
Association of
Queensland - Union of
Employers
AM2012/179
30 Public holidays National Retail
Association AM2012/240
Hair and Beauty
Industry Award
2010 [MA000005]
35
Public holidays Hair and Beauty Industry
Association AM2012/172
Hospitality
Industry (General)
Award 2010
[MA000009]
32.2(c) Public holidays VECCI AM2012/211
32.2(c)
Public holidays Australian Hotels
Association AM2012/215
Nurses Award
2010 [MA000034]
32 Public holidays Australian Nursing and
Midwifery Federation AM2012/132
32 Public holidays ACTU AM2012/134
1 [2013] FWCFB 1635—Penalty Rates; [2013] FWCFB 2168—Public Holidays.
[2013] FWC 5369 [Note: An appeal pursuant to s.604 (C2013/6468) was
lodged against this decision - refer to Full Bench decision dated 3 April
2014 [[2014] FWCFB 2228] for result of appeal.]
DECISION
E AUSTRALIA FairWork Commission
https://www.fwc.gov.au/documents/decisionssigned/html/2014FWCFB2228.htm
[2013] FWC 5369
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[2] The applications are made under Sch. 5, Item 6 of the Fair Work (Transitional
Provisions and Consequential Amendments) Act 2009 (the Transitional Act) as part of the
review of all modern awards which the Fair Work Commission (the Commission)2 is required
to conduct after the first two years of all modern awards coming into effect (the 2012
Review). The relevant legislation was considered by the Full Bench and set out in that
decision.
[3] The Full Bench Modern Awards Review 2012 decisions3 detail each of the variations
sought by the applicants listed in the above table. However since that time almost total
agreement has been reached I will deal with each Award separately.
Application by the Australian Nursing and Midwifery Federation (AM2012/132) and
application by the Australian Council of Trade Unions and others (AM2012/134)
[4] These are applications to vary clause 32—Public Holidays of the Nurses Award 2010
[MA000034].
[5] A hearing was conducted on 15 May 2013 and the parties indicated that further
discussion may produce agreement in relation to these matters.
[6] Following those discussions Mr Andrew McCarthy, Federal Industrial Officer of the
Australian Nursing Federation wrote to me to advise that agreement had been reached and
proposed amendments to clause 32 of the award.
[7] I will make the determination in the terms agreed.
Application by the Baking Industry Association of Queensland—Union of Employers
(AM2012/179) and the National Retail Association (AM2012/240)
[8] These are applications to vary clauses 26.1(b) and (c), 26.5 and 30 of the Fast Food
Industry Award 2010 [MA000003].
[9] A hearing was conducted on 15 May 2013 and the parties indicated that further
discussion may produce agreement in relation to these matters.
[10] Following those discussions Ms Daniela DeMartino, National Industrial Officer of the
Shop, Distributive and Allied Employees’ Association (SDA) wrote providing draft orders for
the variations to clauses 26.1(b) and (c) and 26.5 of the award. On 18 September 2013 the
parties further agreed to changes to the award - deletion of clause 19.7(c) and deletion of the
words “(except for shiftworkers)” in clause 27.1(e)
[11] Submissions were also received from Siobhain West, Policy Officer, Business SA
supporting the variations contained in the draft orders submitted by the SDA.
[12] A matter which was not agreed related to the treatment of compensation for public
holidays. Since this matter was before me Commissioner Hampton had an identical question
in relation to the General Retail Award [MA000004] [[2013] FWC 4949]. All parties were
2 On 1 January 2013, Fair Work Australia was renamed the Fair Work Commission (the Commission). In this decision I have
referred to the Commission which incorporates reference to Fair Work Australia as it was known prior to 1 January 2013.
3 [2013] FWCFB 1635—Penalty Rates; [2013] FWCFB 2168—Public Holidays.
[2013] FWC 5369
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advised of this decision. In that matter the parties agreed to particular treatment for time off in
lieu for public holidays.
[13] Commissioner Hampton included the following provision:
d) Public holidays
(i) Work on a public holiday must be compensated by payment at the rate
of an additional 150%.
(ii) Provided that by mutual agreement of the employee and the employer,
the employee (other than a casual) may be compensated for a particular
public holiday by either:
(A) An equivalent day or equivalent time off instead without loss of
pay. The time off must be taken within four weeks of the public
holiday occurring, or it shall be paid out; or
(B) An additional day or equivalent time as annual leave.
(iii) The employee and employer are entitled to a fresh choice of payment
or time off by agreement on each occasion work is performed on a
public holiday.
(iv) If no agreement can be reached on the method of compensation, the
default arrangement shall be as per clause 29.4(d)(i).
[14] The Commissioner decided that the variation would come into operation on and from
1 August 2013. He noted that the effect of the Act is that the determination will take effect in
relation to employees at the start of each employee’s first full pay period that starts on or after
that date.
[15] The SDA opposed any variation as it would significantly reduce the existing safety
net.
[16] I have decided that the clause inserted by Commissioner Hampton is appropriate to
include in this award even against the background that it was achieved by consent. In doing so
the safety net for an employee does not alter unless there is agreement to do by substituting
another form of compensation. To access the alternative there must be mutual consent and
employees cannot be pressured into agreeing as that would not constitute genuine consent.
This is emphasised by the final sub-clause.
[17] With relevant changes, the award will be varied to reflect the position set out by
Commissioner Hampton. A determination varying the award will be issued.
Application by the Hair and Beauty Industry Association (AM2012/172)
[18] This is an application to vary clause 35 of the Hair and Beauty Industry Award 2010
[MA000005]. As with the matter effecting the public holiday’s provision in the fast food
industry the same outcome should apply in this area.
[2013] FWC 5369
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[19] A determination varying the award will be issued.
Application by the Victorian Employers Chamber of Commerce and Industry
(AM2012/211) and the Australian Hotels Association (AM2012/215)
[20] These are applications to vary clause 32.2(c) of the Hospitality Industry (General)
Award 2010 [MA000009]. These matters were dealt with by Deputy President Sams in
separate proceedings4.
Conclusion
[21] In making these determinations I am satisfied that the variations will achieve the
modern awards objective and ensure that they are operating effectively, without anomalies or
technical problems arising from the Part 10A award modernisation process.
DEPUTY PRESIDENT
Appearances:
D. DeMartino on behalf of the Shop, Distributive and Allied Employees’ Association.
J. Dolan on behalf of the Australian Council of Trade Unions.
A. McCarthy on behalf of the Australian Nursing Federation.
S. Elliffe on behalf of the National Retailers Association.
G. Liggins with G. Sheargold on behalf of the Aged and Community Services Association.
O. Webb on behalf of the Australian Hotels Association.
L. Fisher with L Hepworth on behalf of the Private Hospital Industry Employers Association.
S. West on behalf of the South Australian Employers Chamber of Commerce and Industry
trading as Business SA.
B. Ferguson on behalf of the Australian Industry Group.
Hearing details:
2013.
Melbourne:
May, 15.
Printed by authority of the Commonwealth Government Printer
Price code A, PR539788
4 [2013] FWC 5736.
