[2015] FWCFB 2831
The attached document replaces the document previously issued with the above code on
11 May 2015.
The following changes have been made:
1. By deleting the appearance for “R LePaver” and inserting “R Liebhaber”.
2. Attachment A to the decision has been amended to reflect the correct wording of
clause 13.11 in item A.2 of the draft determination as per the Textile, Clothing and Footwear
Union of Australia’s written submissions of 18 December 2014 at paragraphs 158-160.
M Mally
Associate to Senior Deputy President Watson
Dated: 12 May 2015
1
Fair Work Act 2009
s.156 - 4 yearly review of modern awards
Textile, Clothing, Footwear and Associated Industries Award 2010
(AM2014/91)
Clothing industry
SENIOR DEPUTY PRESIDENT WATSON
SENIOR DEPUTY PRESIDENT O’CALLAGHAN
COMMISSIONER CRIBB MELBOURNE, 11 MAY 2015
4 yearly review of modern awards — substantive issues — award varied — new clause 9.2(c)
in relation to translation of information in some circumstances — consent variation in
relation to technical and drafting issues — merit claims re part-time employment, meal
breaks and requirement to take annual leave — inconsistency between NES and award re
part-time employment — removed.
[1] In a Statement on 13 August 2014,1 the 4 Yearly Review Full Bench dealing with
various Group 1 modern awards referred various issues raised in respect of the current Textile,
Clothing, Footwear and Associated Industries Award 20102 (the TCF Award) to this Full
Bench to hear and determine.3 In Amended Directions of 18 November 2014, the President
directed this Full Bench to hear and determine the substantive issues raised during the
4 yearly review of modern awards (the Review) with respect to the TCF Award, setting out
the issues for determination in Schedule E.
[2] For the purpose of this decision the textile, clothing, footwear industry is referred to as
the TCF industry.
Approach to the proposed variations
[3] The Review is required to be conducted in accordance with s.156 of the Fair Work Act
2009 (the Act) which states:
“156 4 yearly reviews of modern awards to be conducted
Timing of 4 yearly reviews
(1) The FWC must conduct a 4 yearly review of modern awards starting as soon
as practicable after each 4th anniversary of the commencement of this Part.
[2015] FWCFB 2831
DECISION
AUSTRALIA FairWork Commission
[2015] FWCFB 2831
2
Note 1: The FWC must be constituted by a Full Bench to conduct 4 yearly reviews of
modern awards, and to make determinations and modern awards in those reviews (see
subsections 616(1), (2) and (3)).
Note 2: The President may give directions about the conduct of 4 yearly reviews of
modern awards (see section 582).
What has to be done in a 4 yearly review?
(2) In a 4 yearly review of modern awards, the FWC:
(a) must review all modern awards; and
(b) may make:
(i) one or more determinations varying modern awards; and
(ii) one or more modern awards; and
(iii) one or more determinations revoking modern awards; and
(c) must not review, or make a determination to vary, a default fund term
of a modern award.
Note 1: Special criteria apply to changing coverage of modern awards or revoking
modern awards (see sections 163 and 164).
Note 2: For reviews of default fund terms of modern awards, see Division 4A.
Variation of modern award minimum wages must be justified by work value reasons
(3) In a 4 yearly review of modern awards, the FWC may make a determination
varying modern award minimum wages only if the FWC is satisfied that the variation
of modern award minimum wages is justified by work value reasons.
(4) Work value reasons are reasons justifying the amount that employees should
be paid for doing a particular kind of work, being reasons related to any of the
following:
(a) the nature of the work;
(b) the level of skill or responsibility involved in doing the work;
(c) the conditions under which the work is done.
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Each modern award to be reviewed in its own right
(5) A 4 yearly review of modern awards must be such that each modern award is
reviewed in its own right. However, this does not prevent the FWC from reviewing 2
or more modern awards at the same time.”
[4] It is also necessary to consider provisions of the Act dealing with modern awards for
the purposes of the Review.
[5] As observed by the 4 Yearly Review of Modern Awards: Preliminary Jurisdictional
Issues Full Bench (Preliminary Issues Full Bench), any variation to a modern award arising
from the Review must comply with s.136 of the Act and the related provisions which deal
with the content of modern awards (ss.136–155 of the Act).4 The Preliminary Issues Full
Bench stated:
“[40] Any variation of a modern award arising from the Review must comply with
the requirements of the FW Act which relate to the content of modern awards. Division
3 of Part 2-3 deals with the terms of modern awards, in particular terms that may or
must be included in modern awards, and terms that must not be included in modern
awards.”
[6] Section 136 of the Act sets out what can and cannot be included in a modern award –
terms that may or must be included. Subdivision B–Terms that may be included in modern
awards of Division 3–Terms of modern awards of Part 2-3–Modern awards, sets out the terms
which may be included in a modern award, principally in s.139 of the Act. In addition to the
matters set out in s.139 a modern award may also include outworker terms (s.140 of the Act);
industry specific redundancy schemes (s.141 of the Act); and incidental and machinery terms
(s.142 of the Act). Subdivision D–Terms that must not be included in modern awards (ss.150-
155 of the Act) deals with terms that must not be included in modern awards.
[7] Section 142 of the Act, which permits the inclusion in modern awards of incidental
and machinery terms, provides:
“Incidental terms
(1) A modern award may include terms that are:
(a) incidental to a term that is permitted or required to be in the modern
award; and
(b) essential for the purpose of making a particular term operate in a
practical way.
Machinery terms
(2) A modern award may include machinery terms, including formal matters (such
as a title, date or table of contents).”
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[8] Section 138 of the Act is also relevant. It provides:
“138 Achieving the modern awards objective
A modern award may include terms that it is permitted to include, and must include
terms that it is required to include, only to the extent necessary to achieve the modern
awards objective and (to the extent applicable) the minimum wages objective.”
[9] With respect to this section, the Preliminary Issues Full Bench5 said:
“[38] Under s.157(1) the Commission must be satisfied that ‘a determination varying
a modern award . . . is necessary to achieve the modern awards objective’ (emphasis
added). In Shop, Distributive and Allied Employees Association v National Retail
Association (No 2) (SDA v NRA (No 2)) Tracey J considered the proper construction of
s.157(1). His Honour held:
‘The statutory foundation for the exercise of FWA’s power to vary modern
awards is to be found in s 157(1) of the Act. The power is discretionary in
nature. Its exercise is conditioned upon FWA being satisfied that the variation
is “necessary” in order “to achieve the modern awards objective”. That
objective is very broadly expressed: FWA must “provide a fair and relevant
minimum safety net of terms and conditions” which govern employment in
various industries. In determining appropriate terms and conditions regard must
be had to matters such as the promotion of social inclusion through increased
workforce participation and the need to promote flexible working practices.
The subsection also introduced a temporal requirement. FWA must be satisfied
that it is necessary to vary the award at a time falling between the prescribed
periodic reviews.
The question under this ground then becomes whether there was material
before the Vice President upon which he could reasonably be satisfied that a
variation to the Award was necessary, at the time at which it was made, in
order to achieve the statutory objective.
. . .
In reaching my conclusion on this ground I have not overlooked the SDA’s
subsidiary contention that a distinction must be drawn between that which is
necessary and that which is desirable. That which is necessary must be done.
That which is desirable does not carry the same imperative for action. Whilst
this distinction may be accepted it must also be acknowledged that reasonable
minds may differ as to whether particular action is necessary or merely
desirable. It was open to the Vice President to form the opinion that a variation
was necessary.’
[39] We are satisfied that s.138 is relevant to the Review. We also accept that the
observations of Tracey J in SDA v NRA (No.2), as to the distinction between that
[2015] FWCFB 2831
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which is ‘necessary’ and that which is merely desirable, albeit in a different context,
are apposite to any consideration of s.138.” [Citations omitted]
[10] The modern awards objective in s.134 of the Act provides:
“134 The modern awards objective
What is the modern awards objective?
(1) The FWC must ensure that modern awards, together with the National
Employment Standards, provide a fair and relevant minimum safety net of terms and
conditions, taking into account:
(a) relative living standards and the needs of the low paid; and
(b) the need to encourage collective bargaining; and
(c) the need to promote social inclusion through increased workforce
participation; and
(d) the need to promote flexible modern work practices and the efficient
and productive performance of work; and
(da) the need to provide additional remuneration for:
(i) employees working overtime; or
(ii) employees working unsocial, irregular or unpredictable hours;
or
(iii) employees working on weekends or public holidays; or
(iv) employees working shifts; and
(e) the principle of equal remuneration for work of equal or comparable
value; and
(f) the likely impact of any exercise of modern award powers on business,
including on productivity, employment costs and the regulatory burden; and
(g) the need to ensure a simple, easy to understand, stable and sustainable
modern award system for Australia that avoids unnecessary overlap of modern
awards; and
(h) the likely impact of any exercise of modern award powers on
employment growth, inflation and the sustainability, performance and
competitiveness of the national economy.
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This is the modern awards objective.
When does the modern awards objective apply?
(2) The modern awards objective applies to the performance or exercise of the
FWC’s modern award powers, which are:
(a) the FWC’s functions or powers under this Part; and
(b) the FWC’s functions or powers under Part 2-6, so far as they relate to
modern award minimum wages.
Note: The FWC must also take into account the objects of this Act and any other
applicable provisions. For example, if the FWC is setting, varying or revoking modern
award minimum wages, the minimum wages objective also applies (see section 284).”
[11] Addressing the s.134 considerations, the Preliminary Issues Full Bench said:
“[31] The modern awards objective is directed at ensuring that modern awards,
together with the NES, provide a ‘fair and relevant minimum safety net of terms and
conditions’ taking into account the particular considerations identified in paragraphs
134(1)(a) to (h) (the s.134 considerations). The objective is very broadly
expressed. The obligation to take into account the matters set out in paragraphs
134(1)(a) to (h) means that each of these matters must be treated as a matter of
significance in the decision making process. As Wilcox J said in Nestle Australia Ltd v
Federal Commissioner of Taxation:
‘To take a matter into account means to evaluate it and give it due weight,
having regard to all other relevant factors. A matter is not taken into account by
being noticed and erroneously discarded as irrelevant.’
[32] No particular primacy is attached to any of the s.134 considerations and not all
of the matters identified will necessarily be relevant in the context of a particular
proposal to vary a modern award.
[33] There is a degree of tension between some of the s.134(1) considerations. The
Commission’s task is to balance the various s.134(1) considerations and ensure that
modern awards provide a fair and relevant minimum safety net of terms and
conditions. The need to balance the competing considerations in s.134(1) and the
diversity in the characteristics of the employers and employees covered by different
modern awards means that the application of the modern awards objective may result
in different outcomes between different modern awards.”6 [Citations omitted]
[12] The Preliminary Issues Full Bench7 also addressed, in general terms, the relationship
between the decision to create a modern award, the historical context8 and the Review:
“3. The Review is broader in scope than the Transitional Review of modern
awards completed in 2013. The Commission is obliged to ensure that modern awards,
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together with the NES, provide a fair and relevant minimum safety net taking into
account, among other things, the need to ensure a ‘stable’ modern award system
(s.134(1)(g)). The need for a ‘stable’ modern award system suggests that a party
seeking to vary a modern award in the context of the Review must advance a merit
argument in support of the proposed variation. The extent of such an argument will
depend on the circumstances. Some proposed changes may be self evident and can be
determined with little formality. However, where a significant change is proposed it
must be supported by a submission which addresses the relevant legislative provisions
and be accompanied by probative evidence properly directed to demonstrating the facts
supporting the proposed variation. In conducting the Review the Commission will also
have regard to the historical context applicable to each modern award and will take
into account previous decisions relevant to any contested issue. The particular context
in which those decisions were made will also need to be considered. Previous Full
Bench decisions should generally be followed, in the absence of cogent reasons for not
doing so. The Commission will proceed on the basis that prima facie the modern
award being reviewed achieved the modern awards objective at the time that it was
made.”
[13] The approach of the Commission in relation to a significant change was set out by the
Security Services Industry Award 2010 4 Yearly Review Full Bench9 as follows:
“[8] While this may be the first opportunity to seek significant changes to the terms
of modern awards, a substantive case for change is nevertheless required. The more
significant the change, in terms of impact or a lengthy history of particular award
provisions, the more detailed the case must be. Variations to awards have rarely been
made merely on the basis of bare requests or strongly contested submissions. In order
to found a case for an award variation it is usually necessary to advance detailed
evidence of the operation of the award, the impact of the current provisions on
employers and employees covered by it and the likely impact of the proposed changes.
Such evidence should be combined with sound and balanced reasoning supporting a
change. Ultimately the Commission must assess the evidence and submissions against
the statutory tests set out above, principally whether the award provides a fair and
relevant minimum safety net of terms and conditions and whether the proposed
variations are necessary to achieve the modern awards objective. These tests
encompass many traditional merit considerations regarding proposed award
variations.”
Issues for Determination
[14] The issues that we have been directed to determine are set out in Schedule E to the
President’s Amended Directions of 18 November 2014.
[15] Schedule E contained two matters in contest:
a proposal by the Textile, Clothing and Footwear Union of Australia (TCFUA) to
vary clause 28.2 of the exposure draft (clause 9.2 of the TCF Award) in respect of
consultation about changes to regular rosters or ordinary hours of work; and
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a proposed variation of clause 6.3(i) of the exposure draft (clause 13.9 of the TCF
Award) in respect of Part-time employment, which the Australian Industry Group
(Ai Group) had not consented to.
[16] Since those Amended Directions were issued, parties with an interest in the TCF
Award have continued to meet, with the assistance of Commissioner Lee, in relation to the
issues for determination. Those discussions resulted in a “Summary of Submissions” of the
interested parties, of 17 November 2014, which were updated following further consultation
on 26 November 2014, 6 and 21 January 2015 and finally on 17 February 2015 (uploaded to
the TCF Award web-page for the Review on 26 February 2015), titled “Updated summary of
submissions – revised” (Updated Summary).
[17] The Updated Summary indicated that the Ai Group objection had been withdrawn,
leaving only the TCFUA proposal to vary clause 28.2 of the exposure draft (clause 9.2 of the
TCF Award) in respect of consultation about changes to regular rosters or ordinary hours of
work in contest.
[18] We note that other variations proposed by the TCFUA in its initial submissions10 and a
number of additional issues raised by the employer parties in the course of consultations were
not pressed as a result of a consent position ultimately reached between the parties in relation
to the technical/drafting matters. That consent position went to the merit/substantive matters
raised by the TCFUA, the Ai Group and Australian Business Industrial (ABI) with The NSW
Business Chamber Ltd (NSW Chamber) and alleged inconsistencies raised by the Fair Work
Ombudsman (FWO). It was agreed that the TCFUA’s proposed variation in respect of
consultation about changes to regular rosters or ordinary hours of work would be referred to
arbitration for hearing and determination.
[19] The ABI and the NSW Chamber put joint submission and are referred to as the ABI
for the purpose of this decision.
TCFUA’s proposal to vary clause 9.2 of the TCF Award (clause 28.2 of the exposure
draft) in respect of consultation about changes to regular rosters or ordinary hours of
work
[20] Clause 9.2 of the TCF Award is a term setting out requirements for consultation by
employers in relation to changes to rosters or ordinary hours of work, as required by s.145A
of the Act. The TCFUA seeks to vary clause 9.2 of the TCF Award to tailor the provisions of
the model consultation clause in respect of TCF industry, in particular in relation to the
requirements regarding provision of information to affected employees. It seeks to do so in
three substantive respects:
1. to add in clause 9.2(b) a requirement that an employer proposing to change an
employee’s regular roster or ordinary hours of work do the things required by clause
9.2(b) before introducing the proposed change;
2. to add to the requirement in clause 9.2(b)(i) that an employer provide to the
employee or employees affected and their representatives, if any, information about
the proposed change in writing; and
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3. to add a new clause 9.2(c) requiring an employer proposing to change hours to take
steps, including the translation of the written materials required by clause 9.2(b)(i)
to be translated where the employee’s understanding of written English is limited.
[21] The addition of the new clause 9.2(c) would require the renumbering of clauses 9.2(c)
and (d) of the TCF Award.
[22] Clause 9.2, as amended would read:
“9.2 Consultation about changes to rosters or hours of work
(a) Where an employer proposes to change an employee’s regular roster or
ordinary hours of work, the employer must consult with the employee
or employees affected and their representatives, if any, about the
proposed change.
(b) The employer must before introducing the proposed change:
(i) provide in writing to the employee or employees affected and
their representatives, if any, information about the proposed
change (for example, information about the nature of the change
to the employee’s regular roster or ordinary hours of work and
when that change is proposed to commence);
(ii) invite the employee or employees affected and their
representatives, if any, to give their views about the impact of
the proposed change (including any impact in relation to their
family or caring responsibilities); and
(iii) give consideration to any views about the impact of the
proposed change that are given by the employee or employees
concerned and/or their representatives.
(c) Where the employee’s understanding of written English is limited the
employer must take measures, including translation of the information
required in 9.2(b)(i) into an appropriate language, to ensure the
employee understands the proposed change.
(d) The requirement to consult under this clause does not apply where an
employee has irregular, sporadic or unpredictable working hours.
(e) These provisions are to be read in conjunction with other award
provisions concerning the scheduling of work and notice requirements.”
[Changes underlined]
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[23] The variations to clause 9.2 were proposed by the TCFUA in order to individually, and
in combination, “give efficacy to the operation of the consultation term as a whole”, in order
to ensure that “employees are provided with a meaningful right to be consulted when there is
a proposed change to their rosters or ordinary hours of work”.11
[24] In clause 9.2, the consultation requirements concerning changes to rosters or ordinary
hours of work, was added to the TCF Award as a result of the Hours Consultation Full Bench
Decision of 23 December 201312 (the Consultation Decision) giving effect to the requirement
of s.145A of the Act, introduced through the Fair Work Amendment Act 2013 that all modern
awards must include a term requiring employers to consult employees about a change to their
regular roster or ordinary hours of work.
[25] The term, as it appears in clause 9.2 to the TCF Award was added to all other modern
awards,13 being given effect in the nature of a model clause.
[26] Although tailored provisions were sought in respect of some awards, a model clause
approach was taken by the Hours Consultation Full Bench (the Consultation Full Bench) in
light of the time constraint imposed by the transitional provision and the limited material
before the Consultation Full Bench in relation to specific awards.14 The Consultation Full
Bench decided that proposals to tailor the draft relevant term to the circumstances of a
particular modern award should be the subject of further consideration in the Review and be
determined on the basis of evidence presented by any interested party.15
[27] The Consultation Full Bench dealt specifically with a proposal from the Australian
Council of Trade Unions (ACTU) and a number of individual unions for a consultation
provision to give effect to s.145A of the Act generally which sought that the information
required to be provided to the affected employees and their representatives for the purpose of
consultation be provided “in writing” and that in certain circumstances the employer should
be required to translate such information into an appropriate language.16 The ACTU proposed
a provision in the same terms as the new clause 9.2(c) now proposed by the TCFUA in
respect of the TCF Award, save for the referencing of the “information” to clause 9.2(b)(i) in
the TCFUA proposed clause 9.2(c).
[28] The Consultation Full Bench was not persuaded to include the provisions sought. It
found that:
“The relevant term is intended to operate in a range of circumstances and across
different industries and businesses. The requirements proposed would impose an
unwarranted regulatory burden on business (see s.134(1)(f)) and would be particularly
burdensome for small and medium sized businesses (see s.3(g)).”17
[29] The Consultation Full Bench also noted that the TCFUA and “Automotive, Food,
Metals, Engineering, Printing and Kindred Industries Union” known as the Australian
Manufacturing Workers’ Union (AMWU) supported the inclusion of these provisions in
awards in which they had an interest and that each union put their proposal on the basis of
what was said to be “widespread non-compliance” and would “assist enforcing award
compliance”. The Consultation Full Bench found that on the limited material before it, it was
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not prepared to include the provisions sought in those modern awards. It noted that this “issue
can be the subject of further consideration in the 4 yearly review of modern awards”.18
[30] It is clear that the Consultation Full Bench contemplated consideration of the tailoring
of the model clause in relation to consultation about changes to regular rosters or ordinary
hours of work on a specific award basis in the course of the Review, including the variations
now proposed by the TCFUA.
[31] To the extent that the variations proposed by the TCFUA constitute a significant
change to the consultation provision concerning a proposed change to an employee’s regular
roster or ordinary hours of work which departs from the common minimum standard across
modern awards and a departure from the prima facie position that the modern award term
being reviewed achieved the modern awards objective at the time that it was made, the
variation sought must be “supported by a submission which addresses the relevant legislative
provisions and be accompanied by probative evidence properly directed to demonstrating the
facts supporting the proposed variation”.19 Proceeding on the basis that “prima facie the
modern award being reviewed achieved the modern awards objective at the time that it was
made”,20 the Fair Work Commission (the Commission) needs to be persuaded to give effect to
the variation to the extent necessary to achieve the modern awards objective.
[32] To comply with s.138 of the Act, the formulation of terms which must be included in
modern awards or terms which are permitted to be included in modern awards must be in
terms “necessary to achieve the modern awards objective”. In the Review the proponent of a
variation to a modern award must demonstrate that if the modern award is varied in the
manner proposed then it would only include terms to the extent necessary to achieve the
modern awards objective (see s.138).21 What is “necessary” in a particular case will involve a
judgment based on an assessment of the considerations in ss.134(1)(a) to (h), having regard to
the “submissions and evidence directed to those considerations”.22 The TCFUA must
demonstrate that if the TCF Award is varied in the manner proposed then it would only
include terms to the extent necessary to achieve the modern awards objective.
[33] The TCFUA’s variations were supported by the ACTU and The Australian Workers’
Union (AWU). They were opposed by the Ai Group and ABI.
Evidence
[34] The TCFUA relied on the witness evidence from Ms M O’Neil, National Secretary of
the TCFUA and Ms L Nguyen an Organiser and Education Outreach Officer of the
Victoria/Queensland Branch of the TCFUA.
[35] The admission of some of their evidence, in the form of witness statements, was
challenged on several grounds:
Ms Nguyen’s evidence referred, with one exception, to unidentified workplaces,
which prevented those opposing the variations to verify the evidence asserted or to
challenge the assertions with evidence or instructions from the relevant, unnamed
employers;
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Ms Nguyen’s evidence detailed specific events without disclosing the source of her
knowledge of the events and appeared to be hearsay evidence;
Ms O’Neill’s evidence contained numerous assertions which could be properly
described as “opinion evidence”. If her evidence was to be advanced as expert
evidence, her statement “has not established the proper basis for expert witness
status” and the evidence, in any case, “does not meet the criteria for expert
evidence”.
[36] In the course of the hearing, we decided to admit the evidence, subject to submissions
as to weight. To the extent that the evidence involves matters which those opposing the
variations did not have an opportunity to challenge, was hearsay evidence and reflects opinion
without the identification of specific circumstances, probative value of the evidence is limited.
Such evidence falls short in any case of establishing evidence of circumstances applying
generally in the TCF industry.
[37] Ms Nguyen gave evidence that many outworkers and factory workers in the TCF
industry are from non-English speaking backgrounds (more than half in her experience) and
have limited English language and literacy and many are award reliant. In her experience
information was only provided in English in the majority of workplaces. She also gave
evidence, that it is common for employers to announce change without consultation and use a
worker or supervisor to communicate details of the change to workers.
[38] Ms Nguyen also gave evidence in relation to a specific event in relation to three
separate employers. To the extent that the evidence did not disclose the employer and other
parties were unable to test the evidence, it carries no weight. In relation to the two instances
involving a change in working hours, the evidence was that the employer in each case
changed working hours and advised the employees of the change. In each case the evidence
was that there was no consultation at all about the changes.
[39] Ms O’Neil’s evidence was based on her lengthy experience as an officer of the
TCFUA in various capacities. In her experience, key characteristics of the industry include:
a large percentage of the TCF workforce coming from non-English speaking
backgrounds (65-70% on her estimation), a majority of whom are women;
a significant number of award reliant and low paid workers within the industry,
who have a relatively low level of bargaining power;
the structuring of the industry around both traditional manufacturing and outwork
and the existence of “sweatshops”; and
exploitation of TCF outworkers through persistent and widespread non-compliance
with award and legislative obligations.
[40] We accept that Ms O’Neil’s evidence was informed by her long involvement in the
TCF industry and a depth of understanding of the industry arising from that experience. We
note, however, that her evidence was general in nature and shed little light on specific
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circumstances involving the operation of clause 9.2 of the TCF Award since it commenced on
1 January 2014.
[41] Ms O’Neil’s evidence was that:
many members undertaking outwork from non-English speaking backgrounds have
“limited English language spoken and written skills”; and
whilst some TCF outworkers may develop some “English language conversational
skills, many cannot read or understand written English with any reasonable level of
comprehension”.
[42] Ms O’Neil gave evidence that without the variations proposed, clause 9.2 is likely to
be ineffective because TCF employers have not followed the consultation procedures in the
TCF Award at all, or only in a cursory way and employees do not understand or enforce their
award rights. Her evidence was that disputes about ordinary hours of work, rosters and shift
arrangements are common in the TCF industry.
[43] Ms O’Neil provided no specific evidence of the operation of and disputes about clause
9.2 since it was inserted into the award in January 2014.
[44] ABI brought evidence from:
Mr A Jones, a Paralegal with ABI Lawyers & Advisors Pty Ltd: through Mr Jones,
ABI relied on a report dated 9 September 1997 of the Industry Commission, Report
No. 59 (the IC Report) into the TCF industry and the Australian Bureau of
Statistics (ABS) 2011 Census data concerning proficiency in speaking English of
TCF industry employees and introduced information from translation services as to
the cost of translation.
Mr T Butler, Director of J Robins Manufacturing Pty Ltd, whose evidence was that
the company is a footwear manufacturer with 55 employees whose English
language skills vary from poor to fluent and only five of whom speak English as
their first language. Translation of materials might involve up to nine languages.
His evidence was that the company communicates predominantly verbally,
followed up by a “calendar poster”, has employed English Second Language (ESL)
teachers and provided English classes to employees and utilises co-workers to
clarify communication with those with poor comprehension of English. He also
gave evidence that there are times when rosters or ordinary hours of work needed
to be changed, sometimes within a short time frame. In such cases changes are
communicated to and discussed with the teams concerned, seeking feedback/
suggestions.
Mr R Wilkinson, Company Secretary and Director of Akubra Pty Ltd, whose
evidence was that Akubra employs 85 employees, all of whom are from an English
speaking background. As a matter of best practice, when introducing changes to
ordinary hours of work, rosters or other workplace matters, Akubra confirms
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changes in writing but do not ordinarily write to the employees during the
consultation process.
Mr T Hicks, Regulation and Economics Advisor, The NSW Chamber of
Commerce Ltd, gave evidence about the construction of a table utilising the 2011
Census data concerning proficiency in speaking English of TCF industry
employees.
[45] ABI did not rely on statements filed by Mr B Cloros or Mr J Kyriakidis.
Submissions
TCFUA
[46] The TCFUA submitted that in the current proceedings, the Commission has the
requisite power to determine for the TCF Award a consultation clause which departs from the
terms of the model provision, as long as the clause is consistent with the requirements of
s.145A of the Act, and satisfies the statutory tests governing the Review, including the
provisions regarding the content of modern awards (in particular, ss.136, 139 and 142). It
submitted that s.139(1)(j) provides for a term about procedures for consultation and that the
Commission is also empowered under s.142 to include both incidental and machinery terms.
[47] The TCFUA submitted that its proposed variations:
“ would be consistent with the terms of section 145A;
would be incidental to clause 9.2 (a term of a kind mentioned in section 145A)
[s142(1)(a)]; and
essential for the purpose of making that term (9.2) operate in a practical way
[s142(1)(b)].”
[48] The TCFUA submitted that the Commission should exercise its discretion under
s.156(2)(b) to vary the TCF Award term as proposed by it. It submitted that the discretion in
s.156(2) is expressed in “general terms” but is constrained by a number of other provisions in
the Act including, s.134 (Modern awards objective) and s.138 (Achieving the modern awards
objective).
[49] The TCFUA contended that there are four key mandatory requirements in clauses
9.2(a) and 9.2(b):
“(i) The obligation on an employer to consult with affected employee/s (and their
representatives, if any) about a proposed change to an employee’s regular
roster or ordinary hours [9.2(a)];
(ii) The provision of information to the affected employee/s (and their
representatives, if any) by the employer about the proposed change [9.2(b)(i)];
[2015] FWCFB 2831
15
(iii) The invitation by the employer to the affected employee/s (and their
representatives, if any) to give their views about the impact of the proposed
change, including in relation to their family and caring responsibilities
[9.2(b)(ii)]; and
(iv) The obligation on the employer to give consideration to any views about that
impact of the proposed change given by the affected employee/s (and/or their
representatives).”23
[50] The TCFUA submitted that the consultation obligations under clause 9.2 of the TCF
Award cannot be discharged unless each element is satisfied, and satisfied in a genuine way
by the employer.
[51] In support of its proposed variations, the TCFUA relied on the nature of the TCF
industry and its workforce that it is “highly award dependent”, “characterised by widespread
and persistent non-compliance with minimum wages, conditions and health and safety
standards” and “structured around both traditional factory manufacturing and a significant
outwork sector”. The TCFUA submitted that industrial tribunals at both federal and State
level, as well as federal and State governments, have for “many decades acknowledged the
particular vulnerabilities faced by classes of TCF workers, and provided specific regulation
for the TCF industry in an attempt to ameliorate such adverse effects”.
[52] In the context of the particular nature of the TCF industry and its employees, the
TCFUA relied on the observations of the Preliminary Issues Full Bench that:
“. . . the diversity in the characteristics of employers and employees covered by
different modern awards means that the application of the modern awards objective
may result in different outcomes between different modern awards.”
and that:
“Different combinations or permutations of provisions may meet the modern awards
objective.”24
[53] In relation to the variation to clause 9.2(b) by inserting the words “before introducing
the proposed change”, the TCFUA submitted that despite the intended operation of the
consultation clause to be triggered prior to the proposed change being instituted as noted by
the Consultation Full Bench,25 in the TCFUA’s experience, there is “widespread non-
compliance with these provisions in the TCF industry”. It submitted that the TCFUA’s
evidence “illustrates that much more commonly, TCF industry employers implement changes
to rosters and changes to hours of work, and then simply advise affected employees of those
changes”. The TCFUA submitted that the additional words clarify “when the obligation is
triggered and therefore aid industry compliance with the consultation provision, an important
consideration if the clause is to have the beneficial practical effect intended by Parliament” in
legislating for s.145A.
[54] In relation to the proposed variation to clause 9.2(b)(ii) requiring the provision of
information about the proposed change “in writing”, the TCFUA submitted it is “directed to
[2015] FWCFB 2831
16
ensuring that the required information regarding the proposed change is communicated clearly
to the affected employee/s and their representatives (if any)”.
[55] The TCFUA submitted that the variation would enhance the operation of the clause
by:
formalising the communication and reducing the potential for “confusion or
ambiguity as [to] the exact nature of the change being proposed”;
better placing the employee to “seek advice and assistance”; and
ensure that “there is a written record of the proposed change”.
[56] In relation to the insertion of a new clause 9.2(c) which requires translation of the
written information in certain circumstances, the TCFUA submitted that the requirement is
intended to assist employees for whom English is not a prime language to actually understand
the information provided to them by their employer, being in a practical position to seek
advice and having a genuine opportunity to be consulted. It relied on difficulties facing TCF
workers from a non-English speaking background “when confronted with information in
English given to them by their employers”.
[57] In further support of its proposed variations, the TCFUA relied on a history of similar
safeguards in TCF industry award regulation which, it submitted, recognised the particular
vulnerabilities faced by particular classes of workers in the TCF industry. It referred to the
following provisions of the TCF Award:
Award flexibility (clause 7.8);
Facilitative provisions (clause 8.4(a)–Procedure for seeking majority or individual
agreement);
Consultation (clause 9.1(b)(iii)–Employer to discuss change);
Payment by results (clause 23.2(c)–Calculation of PBR earnings and 23.7–
Alteration of time standards); and
Schedule F–Outwork and related provisions (Appendix to Schedule F–Information
to be given to outworkers in clauses F4.3 and 4.5).
[58] The TCFUA submitted that its proposed variations to clause 9.2 meets the modern
awards objective in s.134 of the Act, contending that, absent the variations, clause 9.2 will
“not operate to achieve the legislative purpose for its inclusion” in the TCF Award to “assist
award dependent employees to better reconcile their family and work responsibilities in
circumstances where their employer proposes to change their roster or ordinary hours of
work”. As a result, it submitted, “a fair and relevant minimum safety net of terms and
conditions will not be ensured for the TCF industry”, in light of the matters which
characterise the TCF industry.
[2015] FWCFB 2831
17
[59] In relation to the s.134 matters, the TCFUA submitted that:
the variations are necessary to meet the needs of the TCF workers, who are
predominantly low paid, to balance their work and family responsibilities through
“the inclusion of additional safeguards in the model consultation clause to ensure,
as far as possible that workers affected by a proposed roster or hours of work
change, can fully understand, and respond to the proposal being mooted”
(s.134(1)(a) of the Act);
for those “workplaces which do have the collective industrial strength and desire to
bargain with the employer, the minimum terms of the TCF Award invariably form
the floor from which those negotiations take place” (s.134(1)(b) of the Act);
its proposed variations to clause 9.2 would “promote social inclusion by enhancing
a provision designed to assist employees to balance their work and family/carer
responsibilities” (s.134(1)(c) of the Act);
its proposed variations to clause 9.2 will have “no negative impact on productivity
in the TCF industry” but if strengthened to operate as intended, clause 9.2 may
“prevent the premature departure” of employees affected by the change to their
hours and the loss of skilled workers. It submitted that a similar consideration
would arise in respect of employment costs. The TCFUA conceded that some (not
all) of its proposed variations to clause 9.2 may “increase the regulatory impact on
TCF employers”, but submitted that any increase would be “modest” (s.134(1)(f)
of the Act);
its proposals would “assist in employees understanding and activating their rights”
under clause 9.2 and the “provision of information in writing (including
translations) to affected employees would act as a record of the proposed change
and may decrease the level and parameters of disputation arising under the clause”
(s.134(1)(g) of the Act);
its proposed variations to clause 9.2 of the TCF Award would have no relevance to
the considerations in ss.134(1)(d), (da), (e) and (h) of the Act.
[60] The TCFUA also submitted that the variations will also assist in compliance with the
consultation clause overall, promoting that part of the object of the Act in s.3(c).
Ai Group
[61] Ai Group submitted that:
The TCFUA had “failed to demonstrate that the proposal is consistent with the
statutory requirements for variation to a modern award including the modern
awards objective and the definition of incidental terms”;
[2015] FWCFB 2831
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The variations “fall short of the threshold requirements” as outlined by a Full
Bench of the Commission in its Preliminary Jurisdictional Issues Decision26
(Preliminary Issues Decision); and
The “subject matter of the variation was squarely considered and determined by a
previous and recent Full Bench decision of the Commission”.
[62] Ai Group submitted that the “proposed variation represents a substantial and
unnecessary departure from the terms of the model clause”, that is “unsupported by evidence
that the terms of the TCF Award do not satisfy the modern awards objective, and contrary to
the TCFUA’s submissions, is not necessary to ensure meaningful operation of the award or
the consultation obligations”.
[63] It submitted that the TCFUA had “failed to overcome the relevant statutory hurdles in
order to satisfy the Commission that the proposed variations are necessary to achieve the
modern awards objective” that:
The relevant award can include terms only to the “extent necessary to achieve the
modern awards objective” (s.138 of the Act);
The Commission must ensure that modern awards, together with the National
Employment Standards (NES), “provide a fair and relevant minimum safety net of
terms and conditions”, taking into account the range of factors, listed in
ss.134(1)(a)–(h) of the Act; and
A modern award “must only include terms that are permitted or required by the
Act” (s.136(1)), may include “terms about any of the matters listed at s.139(1) or
incidental and machinery terms (s.142)”.
[64] Ai Group submitted that the TCFUA had failed to establish that the proposed
variations satisfy s.142(1)(b): in “order to reach a conclusion that the proposed term is
essential, the Commission must first be satisfied that clause 9.2 is, presently, not operating in
a practical way”. Nothing in the evidence relied upon by the TCFUA suggested that, absent
the variations proposed, the clause is not operating practically.
[65] Ai Group submitted that:
“Accordingly, the Preliminary Jurisdictional Issues decision establishes the following
key threshold principles:
A proposal to significantly vary a modern award must be accompanied by
submissions addressing the relevant statutory requirements and probative evidence;
The Commission will proceed on the basis that a modern award achieved the
modern awards objective at the time that it was made;
Relevant previous Full Bench decisions will be taken into account and generally
followed, unless there are cogent reasons for not doing so; and
[2015] FWCFB 2831
19
The variation sought must be necessary to achieve the modern awards objective,
and not one that is merely desirable.”27
[66] It submitted that “the TCFUA has failed to meet each of these threshold
requirements”.
[67] In relation to s.134 matters, Ai Group submitted:
that it rejected the TCFUA contention that the Preliminary Issues Decision
“mandates a broad reading of the term ‘relative living standards and the needs of
the low paid’, such that it allows the Commission to consider more than just wage,
cost of living and other financial metrics, but also the needs of the low paid more
generally, including such matters as ‘the capacity for low paid workers to balance
their work and family responsibilities’.” In any case, the TCFUA proposed
variations would “not prevent the impact to carer/family responsibilities which the
TCFUA claims arise from the unilateral change of working arrangements”. It
submitted that it “is a neutral factor in the Commission’s consideration of the
TCFUA’s claim”. (s.134(1)(a) of the Act);
the absence of the terms proposed by the TCFUA would, if the “essential need for
a provision in the terms sought by the TCFUA exists, in fact incentivise parties to
collectively bargain for a term that provides additional ‘safeguards’” (s.134(1)(b)
of the Act);
the TCFUA had “failed to mount any evidence in support of its claim that the
proposed variations would promote social inclusion. The assertions made are
merely speculative, without reference to any evidentiary basis” (s.134(1)(c) of the
Act);
the “imposition of the additional obligations proposed runs contrary to the need to
promote flexible work practices”. An employer is “entitled to vary an employee’s
ordinary hours of work and regular rosters” and having “complied with the current
clause 9.2, an employer should be able to exercise that right without needing to
first comply with additional onerous obligations” (s.134(1)(d) of the Act);
the proposed variations “may deter an employer from making changes to its
operations, as noted above. Such changes are often necessary and important in
improving productivity and it is legitimate to assume are undertaken for genuine
business purposes. To this extent, the TCFUA’s claim would adversely impact
upon business” (s.134(1)(f) of the Act);
clause 9.2, as presently worded, “is simple and easy to understand. There is no
evidence before the Commission that its terms have given rise to any ambiguity or
confusion” (s.134(1)(g) of the Act);
to the extent that “the matters arising from ss.134(1)(b), (d) and (f) impact upon
employment growth, inflation and the sustainability, performance and
[2015] FWCFB 2831
20
competitiveness of the national economy, this is also a relevant consideration that
runs contrary to the TCFUA’s claim” (s.134(1)(h) of the Act); and
sections 134(1)(da) and (e) of the Act are also neutral considerations.28
[68] Ai Group submitted that the three elements of the TCFUA proposed variations were
squarely put to and considered by the Consultation Full Bench in those proceedings.29
[69] Ai Group submitted that the granting of the third element of the TCFUA’s claim
would be “anomalous if the second element does not succeed. That is, if the information is not
required to be provided in writing, considerations as to any limitation which an employee
might have regarding understanding of written English become wholly irrelevant”.
[70] Ai Group concluded that the TCFUA’s claim is a “re-agitation of matters recently
considered by a Full Bench of this Commission”, seeking a decision that “departs from that
determination, in the absence of cogent reasons for doing so”. Ai Group submitted that this is
“clearly inconsistent with the approach to be adopted by the Commission in this review”.
ABI
[71] ABI submitted that when considering the merit basis to make variations, the
Preliminary Issues Full Bench distinguished between cases “where the need for an award
variation is self-evident” and “where significant award changes are proposed”. It submitted
that the TCFUA proposed variations of clause 9.2 fell into the latter category and that the
TCFUA is required to “adduce merit based evidence of a probative nature to show that if its
claims were granted the modern award in question at the conclusion of the 4 Yearly review
(inclusive of the claim) achieves the modern awards objective (s.134)”.
[72] ABI conceded that the fact that the Consultation Full Bench “declined to include
variations as sought by certain parties into the ‘model term’ does not necessarily prevent the
Commission from implementing similar or identical provisions into an individual award”, but
submitted that the “Full Bench’s comments and reasoning in the Consultation Decision are
important and, without sufficient reason to depart, persuasive”.
[73] In respect of the first element of the proposed variation, ABI submitted that the current
clause is not ambiguous and does not require clarification. It submitted that a proper
construction of clause 9.2 of the TCF Award is that the “obligation to consult is triggered at
the time an employer proposes to change an employee’s regular roster or ordinary hours [of]
work”, as is clear in clause 9.2(a). It submitted that there is no “ambiguity arising from the
terms of clause 9.2 as far as when the consultation process must occur” and that the
“provision operates in all other modern awards, apparently without issue”. ABI further
submitted that the construction and operation of clause 9.2 was considered by the
Consultation Full Bench.
[74] ABI also submitted that the TCFUA had not advanced a “merit based” argument to
support the first element of its proposed variation. It submitted that the TCFUA had not
demonstrated that if, varied in the manner proposed, clause 9.2 would only include terms to
the extent necessary to achieve the modern awards objective. It submitted that whilst the
[2015] FWCFB 2831
21
TCFUA had asserted, in relation to the first element of its variation, that there is widespread
non-compliance with award provisions in the TCF industry, “employers in the TCF industry
do not comply with clause 9.2” and “consultation around changes to rosters and working
hours is an area of ‘common disputation within the TCF industry’,” the TCFUA has brought
no probative evidence to support the assertions made.
[75] In relation to the second element of the proposed variation – “in writing” – ABI
submitted that it appears uncontroversial that the TCF Industry has particular characteristics
which distinguish it from other industries: a higher proportion of employees who are born
overseas and who come from non-English speaking backgrounds. It submitted that:
“However, the fact that many employees in the TCF Industry come from a non-English
speaking background does not necessarily provide a basis for a finding that:
(a) The current mechanisms of verbal consultation are somehow not working
effectively or are insufficient or inappropriate; or
(b) Verbal consultation generally is not an effective communication method; or
(c) The current Award is not meeting the modern awards objective.”
[76] ABI submitted that it is “not the case that every TCF business in Australia employs
people who have poor English language skills” and it cannot be said that “macro-level data
about the TCF Industry warrants imposing additional obligations on those businesses whose
workforce composition is more consistent with the broader Australian workforce”. It
submitted that the requirement to inform employees of a change in hours in writing represents
an “unreasonable and unnecessary burden on those employers”.
[77] ABI submitted that the evidence demonstrates that “employers utilise a range of
techniques to ensure that they can communicate with [employees] effectively in
circumstances where an employee has difficulties understanding the English language” and
there was no evidence which justifies a finding that “such techniques are inadequate”. ABI
submitted that the TCFUA had not “adduced probative evidence sufficient to demonstrate that
there is any problem with the current verbal consultation which occurs within the TCF
Industry”.
[78] ABI submitted that the second element of the variation proposed cuts across a number
of the factors set out in s.134(1) of the Act: in particular it “will likely have a negative effect
on the flexibility of modern work practices and the efficient and productive performance of
work by limiting an employer’s ability to adapt to changing business circumstances”
(s.134(1)(d) of the Act) and have a “negative impact on business, including productivity,
employment costs and the regulatory burden” (s.134(1)(f) of the Act). The requirement to
“provide information in writing will create additional costs”, “time delays for the employer in
exercising their ability to implement change” and “represents an unreasonable regulatory
burden on businesses”.
[2015] FWCFB 2831
22
[79] ABI also submitted that the third element of the proposed variation – translation –
“cuts across a number of the factors” set out in s.134(1) of the Act: in particular s.134(1)(d)
and s.134(1)(f) of the Act.
[80] ABI submitted that its evidence showed that the translation requirement will “impose
additional costs and time delays for employers in exercising their ability to implement
change”, particularly where “employers have employees from a large number of different
backgrounds”. Against that, it submitted, there was no “evidence to support a finding that
clause 9.2 is not currently operating ineffectively” in the absence of the translation
requirement.
Decision in relation to TCFUA’s proposed variation of clause 9.2
[81] The TCFUA’s case relies on particular characteristics of the TCF workforce and the
TCF industry in support of its proposed variation of clause 9.2: low paid employees with a
high level of award reliance, a relatively high proportion of employees who are female and
from non-English speaking backgrounds, widespread non-compliance with award and
legislative provisions and an industry with a mix of traditional manufacturing and outwork.
Whilst there is acceptance by some employer organisations of some of these characteristics—
for example ABI accepts that the TCF industry has a “higher proportion of employees are
born overseas” and a “higher proportion of employees who come from non-English speaking
backgrounds”30—the evidence of the TCFUA in relation to these characteristics is general in
nature and based upon the observation of its witnesses from their experience in the TCF
industry.
[82] The TCFUA’s evidence was largely general in nature, and provided little information
about the operation of clause 9.2 of the TCF Award, in terms of its practical operation in
relation to specific employers, since it commenced operation on 1 January 2014. The only
evidence going to specific instances of consultation about changes in regular rosters and
ordinary hours of work since that time is found in two instances in which Ms Nguyen related
what was told to her in relation to those two instances31 and instances in relation to four
unidentified employers recounted by Ms O’Neil in re-examination, all of which involved a
failure to consult at all32 and in one case also involved a failure to provide information other
than in English.33 Given the identities of the employers were not disclosed, despite requests to
do so,34 no opportunity was provided to those opposing the variation to test the evidence
about the circumstances described. No weight can be afforded to the specific content of such
evidence.
[83] Additional evidence was given by Ms Nguyen in relation to consultation under clause
9.1 in respect of an identified employer.35 To the extent the evidence was of what the witness
was told, it was not evidence as to the facts conveyed and the evidence did not go directly to
consultation required by clause 9.2 of the TCF Award.
[84] The TCFUA’s evidence was largely of the nature of “many people working in the
industry”36 with particular characteristics or generalised statements – “the large percentage”,
“significant numbers”, “persistent and widespread” and “common”.37 The only quantification
provided in the evidence of Ms Nguyen was that of the workplaces she organises or visits,
more than half of the workers are from a non-English speaking background38 and the majority
[2015] FWCFB 2831
23
of those workplaces rely on the NES and the TCF Award.39 Ms O’Neil provided evidence on
the basis that the TCFUA’s data base and in her own experience that at least 65-70% of
workers in the TCF industry come from non-English speaking backgrounds and universally
most TCF outworkers and “sweat shop” workers come from countries other than Australia.40
[85] The ABI’s evidence from TCF employers was of limited scope and usefulness. In the
case of Mr Butler, it reflected a limited understanding of the requirements of clause 9.241 and
in the case of Mr Wilkinson, it reflected a view as to the potential implications of the TCF
Award on his company in circumstances where the TCF Award does not apply whilst a 2013
enterprise agreement operates.42
[86] The evidence of Mr Jones through the IC Report into the TCF industry and the 2011
Census data concerning proficiency in speaking English of TCF industry employees put some
quantitative information before the Commission (although very dated in relation to the IC
Report):
In May 1997, the TCF workforce was slightly older than the workforce of the
manufacturing industry as a whole and All industries
In May 1997, 59% of the TCF workforce was female, a substantially higher
proportion than found in the manufacturing industry as a whole and All industries.
More contemporary data, published in the Commission’s Research Report
3/2013—Manufacturing industry profile—records that in November 2012, 51% of
the TCF workforce was female, a substantially higher proportion than found in the
manufacturing industry as a whole and slightly higher than for All industries.43
In May 1997, 42% of the TCF workforce was married females, a substantially
higher proportion than found in the manufacturing industry as a whole and All
industries.
In May 1997, 49% of the TCF workforce was born in a country with a non-English
speaking background, a substantially higher proportion than found in the
manufacturing industry as a whole and All industries.
The now dated IC Report noted that it was “notoriously difficult to obtain reliable
data on homeworking employment”,44 noting a range of estimates from 330,000 in
1994 estimated by the TCFUA and 50,000 estimated by the Australian Tax Office
in 1991,45 which the IC Report found to be unlikely in either case – too high and
too low respectively.
The 2011 Census data, disclosed that 62% of Textile, Leather, Clothing and
Footwear manufacturing employees spoke only English (82% for employees in All
industries), 25% spoke a language other than English but spoke English well or
very well and 12% spoke a language other than English and spoke English not well
(11%) or not at all (1%).
[87] The 2011 Census data, whilst recording a subjective self-assessment of spoken English
skills by employees in the TCF industry, was the only quantitative evidence before us as to
[2015] FWCFB 2831
24
spoken language skills. There was no evidence as to written language skills of TCF
employees, either in English or the employees’ preferred spoken language.
[88] There was considerable disagreement in relation to the ABI calculations, based on the
2011 Census data, that only 12% of Textile, Leather, Clothing and Footwear manufacturing
employees spoke a language other than English and spoke English not well (11%) or not at all
(1%). The TCFUA submitted that the information was inconsistent with the experience of its
witnesses. The TCFUA raised several issues concerning the reliance which could be placed
on the information from the 2011 Census data, including the subjective nature of the
assessment of English language skills, the absence of context as to the purpose of use of such
skills and the fact that the 2011 Census form was provided in English only.46 Further it
submitted that the information related to any workers in the industry and not to those persons
in occupations likely to be covered by the TCF Award. The TCFUA utilised the 2011 Census
data to calculate information in relation to English language skills of those occupational
groups (technicians and trades workers, machinery operators and labourers) covered by the
TCF Award, estimating that at least 54% of those workers either do not speak English very
well or not at all.47
[89] There is some validity to the TCFUA’s proposition that the 2011 Census data has
deficiencies for the purpose relied on by ABI. We accept that the responses represent a
subjective self-assessment of English language skills and some unstated view as to the
purpose of the use of the English language, as noted by the ABS.48 The relevant question in
the 2011 Census was question 17—“How well does the person speak English?” which does
not provide a context for the use of spoken English. Further, it relates only to the respondent
speaking English and not their comprehension of spoken English (or their written English
skills).
[90] The TCFUA’s occupationally based calculation that at least 54% of TCF workers
either do not speak English very well or not at all, however, is mathematically flawed. It is
derived by adding the percentages of each of the three separate occupational groups (12%,
22% and 20% respectively – a total of 54%) whereas the percentage of the total number of
employees in the occupations who either do not speak English very well or not at all should
be derived by calculating the number of persons with those language skills in the three
occupations by the total number of employees in those occupations – a figure of 19.3%
(which, as a matter of mathematical logic, falls within the range of the 12% – 22% for the
three separate groups within the total group). Whilst higher than the ABI figure of 12%, the
19.3% arises from the TCFUA’s occupational analysis of the 2011 Census data, rather than
the 54% estimate the TCFUA advanced.
[91] No firm conclusion is available from the evidence as to the proportion of TCF Award
covered employees with no or limited spoken English language skills. The TCFUA’s
witnesses surmised from their experience that the ABI’s 2011 Census data based estimate is
too low but provides no quantitative assessment on the issues (compared with estimates of the
proportion of TCF workers from a non-English speaking background49). The 2011 Census
data provides quantitative information but has deficiencies of the type noted above. It is likely
that the 2011 Census data (even occupationally adjusted) understates the extent of
deficiencies in spoken English skills for the purpose of engaging in consultation about
workplace conditions. The TCFUA’s estimate was based on the 2011 Census data and their
[2015] FWCFB 2831
25
witnesses’ evidence as to the non-English speaking background, which suggest that a majority
of TCFUA workers have inadequate spoken English skills for the purpose of such
consultation, overstates the position. The best finding available from the evidence, a very
general finding, is that a substantial proportion of TCF workers, although not approaching a
majority of them, have inadequate spoken English skills for the purpose of consultation.
There was no evidence as to their written English skills.
[92] The TCFUA relied on award provisions in the TCF Award said to reflect recognition
by industrial tribunals of particular characteristics of the industry or recognition in the TCF
Award of similar award requirements to those now sought. Some of the provisions relied on
in support of that submission, being inserted for particular reasons relevant to the provision
and common to modern awards,50 provide no support for the proposition that it is necessary in
order to achieve the modern awards objective to give effect to the proposed variation of clause
9.2. However, we accept that the provisions in relation to consultation regarding major
workplace change (clause 9.1(b)(iii)) and outworkers (Schedule F), specific to the TCF
Award, were inserted having regard to the particular circumstances of employees in the TCF
industry.
[93] We accept that the Commission has, in the past accepted the existence of particular
characteristics of the TCF industry and its workforce and crafted some award provisions
accordingly.51 Whilst we accept that the TCFUA’s evidence as to the characteristics of the
industry is accurate in broad terms, the TCFUA’s case does not establish how those
characteristics support a finding that clause 9.2 of the TCF Award is not meeting the modern
awards objective in its current form and how the variations proposed would better meet those
objectives, having regard to the nature of the TCF industry and the workforce within it. The
TCFUA put no evidence as to any deficiency in relation to the operation of clause 9.2
associated with the absence of the three elements of the variation it proposes. The three
specific anonymous examples in the evidence of Ms Nguyen, where one instance involved
clause 9.1 and the other two involved instances where, on Ms Nguyen’s evidence, the
employer did not consult the employees at all under clause 9.2, but simply informed workers
of a change in their hours.
[94] The TCFUA also placed considerable weight on non-compliance with the TCF Award
in the TCF industry. However, even accepting that there is a higher than usual level of award
non-compliance in the TCF industry, the TCFUA did not relate such non-compliance to its
proposed variation.
[95] The issue of non-compliance was raised at two levels:
“widespread and persistent non-compliance with minimum wages” and legislative
conditions;52 and
“widespread non-compliance” with clause 9.2.53
[96] However, no evidence was put to us at all which goes directly to the operation of
clause 9.2 of the TCF Award which establishes that the current terms of clause 9.2 are
associated with marked non-compliance. As already noted, the specific examples in the
evidence of Ms Nguyen and Ms O’Neil which related to clause 9.2, involved employers
[2015] FWCFB 2831
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failing to consult employees at all under that clause. No explanation was provided by the
TCFUA as to how the variation of clause 9.2 it proposes would address or remedy non-
compliance of the type brought to our notice in the TCFUA evidence – either generally or
specifically in relation to the consultation requirements within clause 9.2 of the TCF Award.
Ms O’Neil conceded that the variation proposed by the TCFUA does nothing, by itself, to
improve non-compliance in the sweatshop sector.54
Proposed variation 1 – to clause 9.2(b) – “before introducing the proposed change”
[97] The current terms of clause 9.2 in the TCF Award reflect those determined for modern
awards generally by the Consultation Full Bench, which made it clear that the “requirement in
s.145A is to consult employees about proposed changes to ‘their regular roster or ordinary
hours of work’, in order that a genuine opportunity be provided for the affected party to
attempt to persuade the decision maker to adopt a different course of action”.55
[98] The TCFUA proposed the inclusion of the additional words – “before introducing the
proposed change” – in clause 9.2(b) in light of what it described as widespread non-
compliance with these provisions in the TCF industry in order to “clarify when the obligation
is triggered and therefore aid industry compliance with the consultation provision”.
[99] The TCFUA’s evidence of such non-compliance was that TCF industry employers
implement changes to rosters and changes to ordinary hours of work, and then simply advise
affected employees of those changes – there is no compliance at all with the consultation
obligations in clause 9.2 of the TCF Award.56 No evidence was provided of uncertainty as to
when the obligation to consult under clause 9.2 of the TCF Award was triggered.57
[100] We are not persuaded that the current clause 9.2 is uncertain as to when the
consultation obligation in clause 9.2 arises. It is clear from the words of clause 9.2 that the
obligation to consult arises “[w]here an employer proposes to change an employee’s regular
roster or ordinary hours of work” and the obligation is to consult about “the proposed
change”.
[101] There was no evidence that the introductory words in the current clause 9.2(b) have
been problematic or detracted from the operation of clause 9.2 in practice.
[102] We are not persuaded that such a provision, varied to add the additional words to
clause 9.2(b), is incidental to the relevant term and “essential for the purpose of making [the
relevant term] operate in a practical way”, within the meaning of s.142(1)(b) of the Act. We
are not satisfied that the TCFUA has established cogent reasons to depart from the term
determined by the Consultation Full Bench in respect of this issue.
[103] We are not satisfied that the TCFUA has established a case for the first element of its
proposed variation.
Proposed variation 2 – to clause 9.2(b)(i) – “in writing”
[104] The second element of the variation of clause 9.2 proposed by the TCFUA would add
a requirement that information about the proposed changes to rosters or ordinary hours of
[2015] FWCFB 2831
27
work which must be provided to the employee or employees affected and their
representatives, if any, be provided in writing.
[105] Such a proposal was considered and rejected by the Consultation Full Bench on the
basis that the “relevant term is intended to operate in a range of circumstances and across
different industries and businesses” and would “impose an unwarranted regulatory burden on
business (see s.134(1)(f)) and would be particularly burdensome for small and medium sized
businesses (see s.3(g))”.58
[106] The requirement of this element of the TCFUA’s proposed variation is that
information about the proposed change be communicated to employees and their
representatives, if any, in relation to any proposal to change regular rosters or ordinary hours
of work. As noted by the Consultation Full Bench the requirement to consult about changes to
regular rosters or ordinary hours of work is intended to operate in a range of circumstances
across different businesses. In elaboration, the Consultation Full Bench said in relation to the
substance of the obligation to consult:
“. . . the precise content of an obligation to consult will depend on the context. The
extent and significance of a proposed change, in terms of its impact on the affected
employees, will have a bearing on the extent of the opportunity to be provided. Hence
a change of limited duration to meet unexpected circumstances may mean that the
opportunity for affected employees to express their views may be more limited than
would be the case in circumstances where the proposed change is significant and
permanent. It is also relevant to note that while the right to be consulted is a
substantive right, it does not confer a power of veto. Consultation does not amount to
joint decision making”.59
[107] There will be some circumstances, requiring consultation to occur in order to provide
the affected employees with a genuine opportunity to attempt to persuade the employer to
adopt a different course of action, in which the provision of information about the change in
writing (and in some circumstances, appropriately translated) would be required. However, in
other circumstances the provision of information in writing would impose an unnecessary
burden and would not be necessary to ensure genuine consultation. It is effective consultation,
the undertaking of genuine consultation in the particular circumstance in which it occurs,
which would better meet the needs of the low paid (and other workers) and enhancing social
inclusion by ensuring proper regard is had to their family circumstances, rather than a
requirement, in all circumstances, to provide information about the proposed changes in
writing.
[108] There will be circumstances where verbal communication of the required information
results in more effective consultation than the provision of the information in writing, as is
reflected in the experience of Mr Butler and Mr Wilkinson, particularly where employees
from a non-English speaking background have better verbal than written English skills. Even
where employees have poor English language skills, the verbal communication of a proposal
to change regular hours or ordinary hours might be effectively undertaken verbally where the
employer and the affected employees come from the same backgrounds and share a common
preferred language. Similarly, where a proposal to change hours is of limited effect and/or
duration, verbal communication might be effective. As Ms O’Neil conceded in her evidence,
[2015] FWCFB 2831
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the effectiveness of verbal communication of a proposed change “depends upon the
complexity of what’s being communicated, and the circumstances and the context of it”.60
[109] Ms Nguyen gave evidence in relation to consultation about significant changes
(redundancies) by ClickCorp Pty Ltd (ClickCorp)61 under clause 9.1 of the TCF Award. The
issues raised by Ms Nguyen in that case concerned the failure to provide certain information
(a skill matrix), consultation and the provision of professional interpreters within the
consultation process. The evidence about that redundancy process did not raise issues about
the requirement in clause 9.1(b)(iii) of the TCF Award that the employer must provide in
writing to the employees concerned and their representatives, if any, all relevant information
about the changes. ClickCorp did in fact provide relevant information in writing in that case.
[110] Whilst the TCFUA submitted that the requirement to communicate the information in
writing would formalise the process and result in a written record of the proposed change, it is
not clear to us that the provision of written information would enhance the consultation
process in all circumstances. That requirement may detract from the effectiveness of the
communication of the proposed change in some circumstances. In our view, an obligation to
provide information in writing in every circumstance in which a change to regular rosters or
ordinary hours of work is proposed would impose an unwarranted regulatory burden on
business and would be particularly burdensome for small and medium sized businesses.
[111] We are not persuaded that the requirement to provide information in writing would
materially impact, one way or the other on other modern awards objective.
[112] As we have already noted, in some circumstances the provision of relevant
information in writing (and in some circumstances, appropriately translated) would be
necessary to achieve genuine consultation. Clause 9.2, in its current terms, obliges an
employer to engage in genuine consultation in relation to a proposed change in an employee’s
regular roster or ordinary hours of work, in the sense that an affected employee is provided
with a genuine opportunity to “express a view about a proposed change in order to seek to
persuade the decision maker to adopt a different course of action”, as was noted by the
Consultation Full Bench.62 However, to impose a requirement to provide information “in
writing” in circumstances where it is not required to achieve genuine consultation would
impose a regulatory burden which is unnecessary to meet the modern awards objective and
the requirement of genuine consultation inherent in clause 9.2 in those circumstances.
[113] We are not persuaded that the second element of the TCFUA’s variation of clause 9.2
of the TCF Award is necessary to achieve the modern awards objective, having regard to the
various s.134 matters. We are not persuaded that clause 9.2, varied to add the “in writing”
requirement, is incidental to the clause and “essential for the purpose of making [the relevant
term] operate in a practical way”, within the meaning of s.142(1)(b) of the Act. We are not
satisfied, on the evidence, that the absence in clause 9.2 of the proposed “in writing”
requirement has been problematic or detracted from the operation of clause 9.2 in practice.
[114] We are not satisfied that the TCFUA has established a case for the second element of
its proposed variation.
[2015] FWCFB 2831
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Proposed variation 3 – new clause 9.2(c) – translation of information
[115] The third element of the TCFUA’s proposed variation was the addition of a
requirement, in a new clause 9.2(c) of a requirement on an employer that:
“Where the employee’s understanding of written English is limited the employer must
take measures, including translation of the information required in 9.2(b)(i) into an
appropriate language, to ensure the employee understands the proposed change.”
[116] The proposed variation is directed to and relies, on its face, on the provision of the
relevant information in writing insofar as the trigger for the operation of the clause is the
employee’s understanding of written English. Given our decision in relation to the second
element of the TCFUA’s proposed variation, the new provision would be unnecessary, unless
the requirement related to the taking of measures, including translation of the information
whether conveyed verbally or in writing on the basis of the adequacy of an employee’s
English skills.
[117] To the extent that the proposed variation is intended to be directed to, and is
contingent upon, the requirement to provide written information which we have not acceded
to, the third element of the TCFUA variation fails. However, the TCFUA’s proposal that the
information be translated is not contingent upon it succeeding in relation to that element of its
proposal requiring that the information be provided in writing.63
[118] We accept that there will be some circumstances in which steps including translation
of information provided, whether in writing where effective consultation requires it or orally,
will be necessary to ensure that the provision of information occurs in a manner, which
provides affected employees with a genuine opportunity to attempt to persuade the employer
to adopt a different course of action. Whatever, the precise level, we are satisfied that a
substantial group of TCF workers have very limited or no spoken English language skills.
Effective consultation, the undertaking of genuine consultation in the particular circumstances
in which it occurs, would better meet the needs of the low paid (and other workers) and
enhancing social inclusion by ensuring proper regard is had to their family circumstances.
[119] Consistent with the past recognition of the English language skills of a proportion of
the TCF workforce by the Commission, the fact that there is a substantial group of TCF
workers who have very limited or no spoken English language skills, and the evidence of
Ms O’Neil of instances of a lack of understanding of decisions conveyed to employees in
English affecting their employment, we are persuaded that some augmentation of the
consultation provision in relation to changes to regular rosters and ordinary hours of work in
the TCF Award is necessary to ensure that the purpose of the clause reflected in s.145A is
effectively achieved. We will insert a new clause 9.2(c) in the following terms:
“(c) Information must be provided to affected employees and their representatives,
if any, in accordance with clause 9.2(b)(i) in a manner which facilitates
employee understanding of the proposed changes, having regard to their
English language skills. This may include the translation of the information
into an appropriate language.”
[2015] FWCFB 2831
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[120] We are not satisfied that the TCFUA has established a case for the third element of its
proposed variation, but we are persuaded to vary the award in the manner indicated above.
[121] The additional provision would not create a burden on employers beyond that
necessary to ensure that they undertake consultation about changes in regular rosters and
ordinary hours of work in a manner which ensures that genuine consultation occurs in the
sense set out by the Consultation Full Bench.64
[122] To the extent that the variation of clause 9.2, as we have decided, goes beyond the
express terms of s.145A, we are satisfied that the variation is essential for the purpose of
making that term operate in a practical way in the TCF industry, within the scope of s.142(1)
of the Act and is necessary to achieve the modern awards objective (s.138 of the Act).
Consent variations proposed
[123] Schedule E to the President’s Amended Directions of 18 November 2014 also
contained a series of variations to which parties with an interest in the TCF Award consented.
[124] On 27 October 2014, the TCFUA filed a draft determination provided by the parties in
relation to the TCF Award, referencing clause numbers of the TCF Award, reflecting
Agreement in relation to:
Technical/drafting matters
Clause 15 (Juniors)
Clause 23.7 (Alteration of time standards – Payment by results (PBR))
Clause 38.1(b) (Meal break – Breaks)
Clause 38.2(a) (Meal breaks and shift workers (textile industry) – Breaks)
Clause 43.5 (Rostered day falling on public holiday – Public holidays)
Schedule B (Classifications/Skill levels)
Schedule C:7 (Apprentices)
Schedule F:8.2(f) (Extended liability of principal – Outwork and related
provisions)
Schedule G (Definitions)
TCFUA & ABI, AIG merit claims
Clause 13.9 (Part-time employment) – FWO NES inconsistency issue
Clause 13.11 (Part-time employment) – TCFUA claim
Clause 40.1(a) (Meal Breaks – Breaks, rests and meal allowance during
overtime) – Ai Group claim
Clause 41.4 (Requirement to take annual leave – Annual leave) – TCFUA
claim.
[125] These consent variations relate to each of the consent matters identified in Schedule E
to the President’s Amended Directions of 18 November 2014. The draft determination is
attached to this decision as Attachment A. The draft determination attached reflects the
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correction, in respect of clause 13.11 drawn to our attention in the 18 December 2014 written
submission of the TCFUA.65
[126] The consent variations proposed, and reflected in the draft determination in
Attachment A, are in our view of the nature of variations described in the Preliminary Issues
Decision about the Review66 as variations which can be determined with little formality,
albeit subject to the obligation upon the Commission to ensure that “modern awards, together
with the NES, provide a fair and relevant minimum safety net taking into account, among
other things, the need to ensure a ‘stable’ modern award system (s.134(1)(g))”.67
[127] We accept that the consent variations described as technical/drafting matters fall into
the category of being “self-evidently necessary” to cure “typographical errors or other
anomalies” as outlined in the Preliminary Issues Decision. They rectify, variously, referencing
errors, formatting errors, grammatical deficiencies to provide better clarity, anomalies or
errors, more logical sequencing and typographical errors.
[128] We are satisfied that the variations proposed as technical/drafting matters comply with
the requirements of the Act which relate to the content of modern awards and are necessary to
advance the modern awards objective in relation to the need to ensure a simple, easy to
understand, stable and sustainable modern award system (s.134(1)(g) of the Act). Since the
proposed variations do not alter the substance of the provisions, other elements of the modern
awards objective are not in issue or do not arise.
[129] We turn now to the consent variations proposed in relation to the TCFUA, ABI and
AIG merit claims.
1. Clause 13.11 (Part-time employment)
[130] Here the variation proposes to amend clause 13.11—Part-time employment by
inserting at the end of 13.11 the words “Following transfer to full-time employment accrual
will occur in accordance with the provisions relevant to full-time employment. At the request
of the employee, the employer must provide to the employee written confirmation of the
quantum of the employee’s leave entitlements as at the date of the conversion” and inserting a
Note separated from the clause which states, “Note: The Fair Work Regulations 2009 contain
obligations in relation to the making and retention of employee records”, so that the clause
reads as follows:
“13.11 Where an employee and their employer agree in writing, part-time employment
may be converted to full-time and vice-versa. If such an employee transfers
from full-time to part-time (or vice-versa), all accrued award and legislative
entitlements will be maintained. Following transfer to part-time employment
accrual will occur in accordance with the provisions relevant to part-time
employment. Following transfer to full-time employment accrual will occur in
accordance with the provisions relevant to full-time employment. At the
request of the employee, the employer must provide to the employee written
confirmation of the quantum of the employee’s leave entitlements as at the date
of the conversion.
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[Note: The Fair Work Regulations 2009 contain obligations in relation to the making
and retention of employee records.]”
[131] The proposed variation was supported in the submissions by the TCFUA, the AWU
and the Ai Group and was not opposed by any interested party.
[132] We are satisfied that the proposed variation complies with the requirements of the Act
which relate to the content of modern awards. Clause 13.11 of the TCF Award is part of a
term about a type of employment.
[133] The first element of the variation provides clarity by reflecting in clause 13.11 the
position in relation to accrual of leave entitlements following transfer to full-time
employment, mirroring terms of the current clause relating to transfer to part-time
employment.
[134] The second element, concerning an obligation upon the employer to provide to the
employee written confirmation of the quantum of the employee’s leave entitlements as at the
date of the conversion if requested by the employee. It is directed to addressing a source of
disputation concerning the quantum of accrued leave entitlements, asserted by the TCFUA
and not challenged. The third element, the inclusion of a Note alerting readers of the TCF
Award to obligations in relation to the making and retention of employee records within the
Fair Work Regulations 2009 (the Regulations) which is related to the second element.
[135] We are satisfied that taking into account the considerations in s.134(1)(a)–(h) of the
Act, the variation provides clarity and does not add to the regulatory burden of the employer
in that it goes no further than to require the employer to provide information, required to be
kept by the employer’s obligations under the Regulations, to an employee if requested to do
so by them.
[136] We will make the variation in the form agreed between the interested parties.
2. Clause 40.1(a) (Meal Breaks)
[137] The proposed variation to clause 40.1(a) of the TCF Award is to include the additional
words “The provision of a meal allowance does not apply if the employer provides an
adequate meal” at the end of the clause so that the clause would read as follows:
“40.1 Meal Breaks
(a) An employee required to work in excess of one and half hours overtime will be
allowed a meal break of at least 30 minutes and will in addition to any
overtime payable be paid a meal allowance. The provision of a meal allowance
does not apply if the employer provides an adequate meal.”
[138] The proposed variation is intended to provide additional clarity to the TCF Award in
respect of the interaction between clause 40.1(a) (Meal breaks) and clause 24.5 (Meal
allowance), and ensuring that the respective provisions are read consistently in relation to the
[2015] FWCFB 2831
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other. To the extent that there is potential for confusion between the two provisions, the
proposed variation addresses that possibility in a confined way.
[139] The proposed variation was supported and not opposed by interested parties. It
complies with the modern awards content requirements of the Act. In our view, it provides
clarity about the interaction between the two clauses, so as to provide simpler and easier to
understand provisions. To that extent, the variation is necessary to achieve the modern awards
objective. It does not alter the substance of the provisions and in that respect is of no material
effect in relation to other elements of the modern awards objective.
3. Clause 41.4 (Requirement to take annual leave)
[140] Clause 41 of the TCF Award deals with the subject matter of annual leave. Clause
41.4 currently provides as follows:
“41.4 Requirement to take annual leave
Annual leave must be taken within 18 months of the entitlement accruing. For
the purpose of ensuring accrued annual leave is taken within that period, and in
the absence of agreement as provided for in s.88 of the Act, an employer may
require an employee to take a period of annual leave from a particular date
provided the employee is given at least 28 days notice.”
[141] The proposed variation is to replace the provision as follows:
“41.4 Requirement to take annual leave
Once an employee has accrued 6 weeks annual leave, for the purpose of
ensuring accrued annual leave is taken, and in the absence of agreement as
provided for in s88 of the Act, an employer may direct an employee to take a
period of annual leave, subject to the following:
(a) The employer must provide the employee with no less than 28 days’
notice of the requirement to take annual leave;
(b) Where after an employer has issued a direction to take annual leave
pursuant to this clause, the relevant employee requests to take annual
leave at an alternate time (but within 6 months of the date of the
direction), the employer must not unreasonably refuse to agree to that
request; and
(c) The employee must retain at least four (4) weeks of accrued annual
leave after the direction is given by the employer.”
[142] The proposed variation alters the current clause 41.4 as follows:
[2015] FWCFB 2831
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Changing the wording of the “trigger” for the employer’s right to direct an
employee to take annual leave (i.e. change from “within 18 months of entitlement
accruing” to “accrued 6 weeks annual leave”);
Introducing an expanded formulation regarding the rights of employees subject to a
direction from their employer to take annual leave;
Introducing a new term (41.4(c)) which guarantees that after a direction to take
annual leave, the affected employee must retain a minimum of four weeks accrual
of annual leave.
[143] The proposed variation was supported in the submissions by the TCFUA, the AWU
and not opposed by any interested party.
[144] Section 93(3) of the Act provides:
“Terms about requirements to take paid annual leave
(3) A modern award or enterprise agreement may include terms requiring an
employee, or allowing for an employee to be required, to take paid annual leave in
particular circumstances, but only if the requirement is reasonable.”
[145] Clause 41.4 of the TCF Award is such a term.
[146] The TCFUA supported the proposed variation on the basis of providing additional
safeguards for employees in circumstances where an employer is entitled under clause 41.4 of
the TCF Award to direct an employee to take excess accrued leave, in order to protect the
beneficial nature of the annual leave entitlement and to meet the reasonableness requirement
in s.93(3) of the Act.
[147] We are satisfied that the variation proposed complies with the modern awards content
requirements of the Act, being part of a term about arrangements for taking leave (s.139(h) of
the Act).
[148] The addition of safeguards in relation to the right of an employer to direct the taking of
excessive accrued annual leave arising from the variation, involves the maintenance of a
minimum of four weeks accrual and a right to an employee to suggest an alternate basis of
taking the period of annual leave directed (subject to a capacity of the employer to refuse,
unless the refusal is unreasonable). The safeguards better protect the benefit of the leave to
employees and have regard to the needs of the employees, better accommodate employees
taking accrued annual leave at a time that suits their personal circumstances, including family
commitments and better promotes the purpose of recovery, rest and recreation and are
consistent with those parts of the modern awards objective in ss.134(1)(a) and (c) of the Act
and may enhance the productivity of employees when they return to work from leave. Whilst
the variations introduce some safeguards which may raise issues in respect of s.134(1)(f) of
the Act, the safeguards are not unreasonable and employers remain able to manage excessive
accrual of annual leave. Overall, we are satisfied that the variation is necessary to achieve the
[2015] FWCFB 2831
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modern awards objective, having regard to the reasonableness requirement within s.93(3) of
the Act.
4. Clause 13.9 (Part-time employment)
[149] The proposed variation in respect of clause 13.9 of the TCF Award arose from a
consideration by the parties of an alleged inconstancy between the clause and the NES raised
by the FWO in its document filed with the Commission on 4 April 2014. The inconsistency
was said to relate to the method of accrual of annual leave and personal/carers’ leave for part-time
employees on the basis of the averaging element of clause 13.9, which the FWO contended was
unclear whether a particular employee would be better or worse off under clause 13.9 of the TCF
Award.
[150] Clause 13.9 of the TCF Award provides:
“13.9 When calculating an employee’s pro rata entitlement to annual leave and
personal/carer’s leave, they must be paid in proportion to the average number
of hours worked in the previous 12 months. If there is not a 12 month period of
employment then the calculation will be based on the average number of hours
worked in each week for the actual period of employment.”
[151] The consent variation proposed in relation to clause 13.9 includes the addition of the
word “ordinary” before the word “hours” wherever it appears in clause 13.9 so that the clause
reads as follows:
“13.9 When calculating an employee’s pro rata entitlement to annual leave and
personal/carer’s leave, they must be paid in proportion to the average number
of ordinary hours worked in the previous 12 months. If there is not a 12 month
period of employment then the calculation will be based on the average number
of ordinary hours worked in each week for the actual period of employment.”
[Proposed variation underlined]
[152] The consent variation proposed addresses and effectively removes an apparent
inconsistency between clause 13.9 of the TCF Award and the NES (ss.87(2) and 96(2) of the
Act), to the extent that they stipulate how annual leave and personal/carer’s leave are to
accrue, which was identified by the FWO.
[153] We will make the variation to provide clarity and remove any inconsistency between
the TCF Award and the NES and to ensure that the award is simple and easy to understand
(s.134(1)(g) of the Act).
Conclusion
[154] We will give effect to each of the consent variations proposed, in the terms reflected in
the consent draft determination in Attachment A,68 amended as required to reflect drafting
style and/or any variations to the TCF Award arising from other Review outcomes since the
consent draft determination was prepared by the parties.
[155] We decline to vary clause 9.2 of the TCF Award as sought by the TCFUA.
[2015] FWCFB 2831
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[156] We will, however, add a new clause 9.2(c) in the following terms:
“(c) Information must be provided to affected employees and their representatives,
if any, in accordance with clause 9.2(b)(i) in a manner which facilitates
employee understanding of the proposed changes, having regard to their
English language skills. This may include the translation of the information
into an appropriate language.”
SENIOR DEPUTY PRESIDENT
Appearances:
V Wiles with M O’Neil and R Liebhaber for the Textile, Clothing and Footwear Union of
Australia.
M Mead for The Australian Industry Group.
K Scott for Australian Business Industrial and The New South Wales Business Chamber Ltd.
J Gherjestani for The Australian Workers’ Union.
Hearing details:
2015.
Melbourne and Sydney (via video):
March 13 and 19.
Printed by authority of the Commonwealth Government Printer
Price code G, MA000017 PR563427
[2015] FWCFB 2831
37
Attachment A
File No Print No
FAIR WORK COMMISSION
DRAFT DETERMINATION
Fair Work Act 2009
Part 2-3, Div 4 – 4 Yearly review of modern awards
Textile, Clothing, Footwear and Associated Industries Award 2010
AM2014/91 [MA000017]
Textile, clothing and footwear and associated industries
PRESIDENT ROSS MELBOURNE, XX XX 2014
A. Further to the Decision and Reasons for Decision of XX XX 2014, it is
determined pursuant to section 156(2)(b)(i) of the Fair Work Act 2009, that the
Textile, Clothing, Footwear and Associated Industries Award 2010 be varied as
follows:
1. By amending clause 13.9 “Part-time employment” by including the word
“ordinary” before the word “hours” where-ever it appears in the clause, so
that the clause reads as follows:
“13.9 When calculating an employee’s pro rata entitlement to annual
leave and personal/carer’s leave, they must be paid in proportion to the
average number of ordinary hours worked in the previous 12 months. If
there is not a 12 month period of employment then the calculation will
be based on the average number of ordinary hours worked each week
for the actual period of employment.’
2. By amending clause 13.11 “Part-time employment” by inserting at the end
of 13.11 the words “Following transfer to full-time employment accrual will
occur in accordance with the provisions relevant to full-time employment.
At the request of the employee, the employer must provide to the employee
written confirmation of the quantum of the employee’s leave entitlements as
at the date of the conversion” and inserting a Note separated from the clause
which states, “Note: The Fair Work Regulations 2009 contain obligations in
relation to the making and retention of employee records”, so that the clause
reads as follows:
[2015] FWCFB 2831
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“13.11 Where an employee and their employer agree in writing, part-
time employment may be converted to full-time and vice-versa. If such
an employee transfers from full-time to part-time (or vice-versa), all
accrued award and legislative entitlements will be maintained.
Following transfer to part-time employment accrual will occur in
accordance with the provisions relevant to part-time employment.
Following transfer to full-time employment accrual will occur in
accordance with the provisions relevant to full-time employment. At the
request of the employee, the employer must provide to the employee
written confirmation of the quantum of the employee’s leave
entitlements as at the date of conversion.
[Note: The Fair Work Regulations 2009 contain obligations in relation
to the making and retention of employee records]” [insert hyperlink]
3. By amending clause 15 “Juniors” by replacing reference to “clause 20.9”
with reference to “clause 20.10” so that the clause reads as follows:
“An employer may employ junior employees and must pay juniors in
accordance with clause 20.10”
4. By amending clause 23.7 “Alteration of Time Standards” to correct
formatting and insert the word “and” after “employer” and before “the” in
the reformatted 5th bullet point, so that the clause reads as follows:
“Once a time standard has been fixed under this clause, it must not be altered
except where any of the following circumstances occur:
There is a change in the manufacturing methods;
There is a change in the materials used;
There is a change in the machines or equipment used;
To correct an agreed error in the existing time standard; or
By agreement between the employer and the PBR employees, in
accordance with clause 8.3. Any proposal which is put to employees
must be reduced to a written form for their consideration prior to the
taking of a vote.”
5. By amending clause 38.1(b) “Meal break” to insert the clause number
“clause 39” after the phrase “overtime rates”, so that the clause reads as
follows:
“(b) If the employer requires an employee (other than a maintenance
employee who is required to work through a meal break to rectify a
mechanical breakdown) to work through a meal break, the employee must
be paid at overtime rates (clause 39) until the break is taken.”
[2015] FWCFB 2831
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6. By amending clause 38.2(a) “Meal breaks and shift workers (textile
industry)” to insert the words “hour” and “eight”, so that the clause reads as
follows:
“(a) Where two eight hour or three eight hour shifts are worked, in lieu of
the meal break provided in sub-clause 38.1(a), the employer has the
discretion to, as opportunity offers, provide the shift worker a 20 minute
paid crib break per shift which shall be counted as time worked.”
7. By amending clause 40.1(a) “Meal Breaks” by inserting at the end of clause
40.1(a) the words “The provision of a meal allowance does not apply if the
employer provides an adequate meal” so that the clause reads as follows:
“40.1(a) An employee required to work in excess of one and a half hours
overtime will be allowed a meal break of at least 30 minutes and will in
addition to any overtime payable be paid a meal allowance. The provision of
a meal allowance does not apply if the employer provides an adequate
meal.”
8. By deleting clause 41.4 “Requirement to take annual leave” in its entirety,
and inserting the following new clause 41.4 in lieu thereof:
“41.4 Requirement to take annual leave
Once an employee has accrued 6 weeks annual leave, for the purpose of
ensuring accrued annual leave is taken, and in the absence of agreement as
provided for in s88 of the Act, an employer may direct an employee to take
a period of annual leave, subject to the following:
(a) The employer must provide the employee with no less than 28 days’
notice of the requirement to take annual leave;
(b) Where after an employer has issued a direction to take annual leave
pursuant to this clause, the relevant employee requests to take annual
leave at an alternate time (but within 6 months of the date of the
direction), the employer must not unreasonably refuse to agree to that
request; and
(c) The employee must retain at least four (4) weeks of accrued annual
leave after the direction is given by the employer.
9. By amending clause 43.5 “rostered day off falling on public holiday” to
insert the word “Except” at the commencement of the clause, so that the
clause reads as follows:
“Except where the rostered day off falls on a Saturday or a Sunday, where a
full-time employee’s ordinary hours of work are structured to include a day
off and such day off falls on a public holiday, the employee is entitled, at the
discretion of the employer, to either:
[2015] FWCFB 2831
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(a) 7.6 hours of pay at the ordinary time rate; or
(b) 7.6 hours of extra annual leave; or
(c) A substitute day off on an alternative week day.
10. By amending Schedule B “Classifications/Skill Levels” to include the
following phrase at the commencement of Schedule B and to delete it’s
corresponding appearance at the end of the definition of “Storeworker
Grade 4”
“These skill levels are to be read in conjunction with an explanation of the
terms contained in Schedule C”
11. By amending clause C.7 in Schedule C “Apprentices” by changing the term
‘contracts of apprenticeship’ to ‘contract of apprenticeship’ so that the
clause reads as follows:
“The probationary period of an apprentice must be as set out in the training
agreement or contract of apprenticeship consistent with the requirements of
the Apprenticeship Authority and with State legislation but must not exceed
three months.”
12. By moving Schedule C “Apprentices” so that it directly follows Schedule F
“Outwork and Related Provisions”, and renumbering Schedule C
accordingly “Schedule G”
13. By updating the references to Schedule C in the Award so that they now
read “Schedule G”. This variation affects the following clauses:
a. Clause 16;
14. By amending sub-clause F.8.2(f) of Schedule F to include a full-stop at the
end of the sub-clause.
15. By moving Schedule G “Definitions” so that it directly follows Schedule B,
and renumbering Schedule G accordingly “Schedule C”.
B. This determination comes into operation on the first full pay period commencing
on and from XX XX 2014.
PRESIDENT
[2015] FWCFB 2831
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1 [2014] FWCFB 5537.
2 MA000017.
3 [2014] FWCFB 5537, at para 8.
4 [2014] FWCFB 1788.
5 [2014] FWCFB 1788.
6 [2014] FWCFB 1788, at paras 31–33.
7 [2014] FWCFB 1788, at para 60.
8 See [2015] FWCFB 616, at paras 5–7.
9 [2015] FWCFB 620.
10 Concerning dispute resolution training leave, part-time employment, annual leave and special unpaid leave.
11 TCFUA submission, 18 December 2014, at para 56.
12 [2013] FWCFB 10165.
13 [2013] FWCFB 10165, at para 107.
14 [2013] FWCFB 10165, at para 53.
15 [2013] FWCFB 10165, at paras 54–55.
16 [2013] FWCFB 10165, at paras 75–83.
17 [2013] FWCFB 10165, at para 83.
18 [2013] FWCFB 10165, at para 84.
19 [2014] FWCFB 1788, at para 60.3.
20 [2014] FWCFB 1788, at para 24.
21 [2014] FWCFB 1788, at para 60.5.
22 [2014] FWCFB 1788, at paras 36 and 60.5.
23 TCFUA submissions, 18 December 2014, at p.17.
24 [2014] FWCFB 1788, at paras 33–34.
25 [2013] FWCFB 10165, at paras 34–37.
26 [2014] FWCFB 1788.
27 Ai Group submissions, 30 January 2015, at pp. 9–10.
28 ibid., at pp. 10–14.
29 [2013] FWCFB 10165, the first element (“proposed”) at paras 33–34 and 63; the second element (‘in writing”) and the
third element (“translation”) at paras 75–84.
30 ABI submission, 2 February 2015, at paras 61–62.
31 Witness statement, Ms Nguyen, at paras 16–17.
32 Transcript, at paras 736–740 and 758.
33 Transcript, at para 738.
34 Correspondence of ABI, 23 January 2015 (posted to web-site on 27 January 2015).
35 Witness statement, Ms Nguyen, at para 15.
36 Witness statement of Ms Nguyen in relation to non-English speaking background and limited English language and
literacy (at para 5), women in the industry (at para 5) and dependence on the minimum wage (at para 5); business size
and absence of union structures (at para 8) and experience in translating (at para 11) and witness statement, Ms O’Neil, in
relation to limited spoken English and written skills (at paras 15–16).
[2015] FWCFB 2831
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37 Witness statement, Ms O’Neil, at paras 10, 23 and 31.
38 Witness statement, Ms Nguyen, at para 5.
39 Witness statement, Ms Nguyen, at para 6.
40 Witness statement, Ms O’Neil, at para 11.
41 Transcript, at paras 1646–1649.
42 Transcript, at para 1766.
43 Table 3.3 of 9 September 1997 of the Industry Commission, Report No. 59 – Labour Market and Microeconomic Reform.
44 Witness statement, Mr Jones, Attachment A, at pp. 121–122.
45 Witness statement, Mr Jones, Attachment A, at p. 121.
46 TCFUA submission, 8 April 2015, at paras 5.4–5.5.
47 TCFUA submission, 8 April 2015, at paras 5.14–5.16.
48 TCFUA submission, 8 April 2015, at para 5.5.
49 TCFUA submission, 8 April 2015, at paras 5.7–5.8.
50 Clause 7.8 of the Textile, Clothing, Footwear and Associated Industries Award 2010 [MA000017] is in the same terms as
clause 7.8 of the Manufacturing and Associated Industries and Occupations Award 2010 [MA000010]. See the
explanation in relation to the award flexibility by the 4 Yearly Review of Modern Awards: Preliminary Jurisdictional
Issues Full Bench, [2013] FWCFB 10165, at para 77.
51 [2008] AIRCFB 550, at paras 94–95, [2008] AIRCFB 717, at paras 100 and 103 and [2008] AIRCFB 1000, at paras 147,
150 and 152.
52 TCFUA submission, 18 December 2014, at paras 48 and 106 and witness statement, Ms O’Neil, at para 25.
53 TCFUA submission, 18 December 2014, at para 62 and witness statement, Ms O’Neil, at paras 25 and 31.
54 Transcript, at para 496.
55 [2013] FWCFB 10165, at para 35.
56 TCFUA submission, 8 April 2015, at paras 6.4, 6.5, 6.9, 6.10 and 6.11 and Transcript, at paras 736–740.
57 See, for example evidence in relation to consultation under clause 9.2 in Transcript, at paras 736–740.
58 [2013] FWCFB 10165, at para 83.
59 [2013] FWCFB 10165, at para 32.
60 Transcript, at paras 650 and 662.
61 Witness statement, Ms Nguyen, at para 15.
62 [2013] FWCFB 10165, at para 31.
63 Transcript, at paras 583–584.
64 [2013] FWCFB 10165, at paras 31–32.
65 TCFUA submission, 18 December 2014, at para 160.
66 [2014] FWCFB 1788.
67 ibid., at para 23.
68 The draft determination reflects the correction, in respect of clause 13.11, drawn to our attention in the TCFUA
submission, 18 December 2014, at para 160.
