1
Fair Work Act 2009
s.156 – 4 yearly review of modern awards
4 yearly review of modern awards—Common issue—Award Flexibility
(AM2014/300)
JUSTICE ROSS, PRESIDENT
DEPUTY PRESIDENT SMITH
COMMISSIONER ROBERTS
MELBOURNE, 16 JULY 2015
4 yearly review of modern awards – common issue – award flexibility – make-up time – time
off in lieu
CONTENTS
Chapters Page Paragraph
1. Introduction and background 3 [1]
2. The 1994 Family Leave Test Case decisions 7 [25]
3. Claims
3.1 Ai Group claim 15 [43]
3.2 AMWU claim 17 [49]
4. Submissions 18 [53]
5. Consideration
5.1 General 25 [92]
5.2 Preliminary jurisdictional points 26 [95]
5.3 AMWU claims—the merits 39 [145]
5.4 Ai Group’s claim—the merits 45 [184]
6. Conclusion and next steps 65 [294]
Attachment A—Awards proposed to be varied to insert the
TOIL clause
70
Attachment B—Awards proposed to be varied by deleting
existing TOIL provision and replacing with test case TOIL
clause
71
Attachment C—Awards proposed to be varied to insert make-
up time clause
72
Attachment D—Index of material 74
Attachment E—Model Flexibility Term 76
Attachment F—Modern awards with overtime provisions 78
[2015] FWCFB 4466
DECISION
E AUSTRALIA FairWork Commission
[2015] FWCFB 4466
2
ABBREVIATIONS
ACCI Australian Chamber of Commerce and Industry
Act Fair Work Act 2009
ACTU Australian Council of Trade Unions
Ai Group Australian Industry Group
AIRC Australian Industrial Relations Commission
AMWU “Automotive, Food, Metals, Engineering, Printing and Kindred
Industries Union” known as the Australian Manufacturing
Workers’ Union (AMWU)
AWRS Australian Workplace Relations Study
AWU The Australian Workers’ Union
ANMF Australian Nursing and Midwifery Federation
BOOT better off overall test
CECL Childcare and Early Childhood Learning, Inquiry Report,
Productivity Commission 2014
CFMEU (C&G) Construction, Forestry, Mining and Energy Union (Construction
and General Division)
CFMEU (M&E) Construction, Forestry, Mining and Energy Union (Mining and
Energy Division)
Commission Fair Work Commission
Family Leave Test Case Family Leave Test Case – Stage 1 – November 1994 decision –
(1994) 57 IR 121
Personal/Carer’s Leave Test Case – Stage 2 – November 1995
decision– (1995) 62 IR 48
HSU Health Services Union of Australia
IFA individual flexibility arrangement
MBA Master Builders Australia
MUA The Maritime Union of Australia
NES National Employment Standards
NFF National Farmers’ Federation
October 1995 Third Safety Net
decision
Third Safety Net Adjustment & Section 150A Review—October
1995 decision (1995) 61 IR 236
OECD Organisation for Economic Co-operation and Development
PIAA Printing Industries Association of Australia
Review 4 yearly review of modern awards
TCFUA Textile, Clothing and Footwear Union of Australia
TOIL time off in lieu
Transitional Review Transitional review of modern awards under Item 6 of Schedule
5 to the Fair Work (Transitional Provisions and Consequential
Amendments) Act 2009
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1. Introduction and background
[1] Section 156 of the Fair Work Act 2009 (the Act) requires the Fair Work Commission
(the Commission) to review all modern awards every four years. In a Statement issued on
17 March 20141 the Commission stated that the first 4 yearly review of modern awards (the
Review) would comprise of an Initial stage, dealing with jurisdictional issues, a Common
issues stage and an Award stage. In that Statement, award flexibility was listed as a common
issue to be dealt with as part of the review. Conferences were held on 17 November 2014,
12 December 2014 and 20 February 2015 to determine the scope and indicative timetable for
dealing with this matter as a common issue. Directions were then issued for the hearing and
determination of the issues.
[2] Two groups of claims are advanced in the context of the award flexibility common
issue. The Australian Industry Group (Ai Group) has made two claims in this matter. The first
claim seeks to insert a model time off in lieu (TOIL) of payment for overtime clause into a
number of modern awards and the second set of proposed variations relate to ‘make-up time’
provisions. The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries
Union” known as the Australian Manufacturing Workers’ Union (AMWU) seeks to vary the
provisions relating to TOIL in a number of awards to provide for the accrual of TOIL at the
‘time for penalty’ rate rather than on an ‘hour for hour’ basis.2
[3] Before we turn to the merits of these claims we propose to set out some of the
background to these proceedings.
[4] We begin by making some brief observations about the legislative context for the
Review. We note that these issues are canvassed in more detail in the Preliminary
Jurisdictional Issues decision of 17 March 2014.3 We adopt and apply that decision.
[5] The Act provides that the Commission must conduct a 4 yearly review of modern
awards (s.156(1)). Subsection 156(2) deals with what has to be done in a 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.”
[6] Subsections 156(3) and (4) deal with the variation of modern award minimum wages
in a Review and are not relevant for present purposes.
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[7] Subsection 156(5) provides that in a Review each modern award is reviewed in its
own right, however, this does not prevent the Commission from reviewing two or more
modern awards at the same time.
[8] The general provisions relating to the performance of the Commission’s functions
apply to the Review. Sections 577 and 578 are particularly relevant in this regard. In
conducting the Review the Commission is able to exercise its usual procedural powers,
contained in Division 3 of Part 5–1 of the Act. Importantly, the Commission may inform itself
in relation to the Review in such manner as it considers appropriate (s.590).
[9] The modern awards objective is central to the Review. The modern awards objective
applies to the performance or exercise of the Commission’s ‘modern award powers’, which
are defined to include the Commission’s functions or powers under Part 2–3 of the Act. The
Review function in s.156 is in Part 2–3 of the Act and so involves the performance or exercise
of the Commission’s ‘modern award powers’. It follows that the modern awards objective
applies to the Review.
[10] The modern awards objective is set out in s.134 of the Act, as follows:
“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.
This is the modern awards objective.
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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] The modern awards objective is directed at ensuring 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 particular considerations identified in
paragraphs 134(1)(a) to (h) (the s.134 considerations). No particular primacy is attached to
any of the s.134 considerations and not all of the matters identified will necessarily be
relevant to a particular proposal to vary a modern award.4 A matter which the Commission is
directed to ‘take into account’ is a relevant consideration in the Peko-Wallsend5 sense of
matters which the decision maker is bound to take into account and treat as a matter of
significance in the decision making process.6
[12] The modern awards objective is very broadly expressed.7 In National Retail
Association v Fair Work Commission8 a Full Court of the Federal Court made the following
observation about the modern awards objective:
“It is apparent from the terms of s 134(1) that the factors listed in (a) to (h) are broad
considerations which the FWC must take into account in considering whether a modern award
meets the objective set by s 134(1), that is to say, whether it provides a fair and relevant
minimum safety net of terms and conditions. The listed factors do not, in themselves, however,
pose any questions or set any standard against which a modern award could be evaluated.
Many of them are broad social objectives. What, for example, was the finding called for in
relation to the first factor (“relative living standards and the needs of the low paid”)? ...”9
[13] There is a degree of tension between some of the s.134 considerations. The
Commission’s task is to balance the various considerations and ensure that modern awards,
together with the NES, provide a fair and relevant minimum safety net of terms and
conditions.
[14] One of the matters the Commission is required to take into account is the need to
ensure a ‘stable’ modern award system (s.134(1)(g)). The need for a stable modern award
system supports the proposition 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
the merit argument required will depend on the variation sought. 10
[15] The Review is broader in scope than the Transitional Review of modern awards11
completed in 2013 and is the first full opportunity to consider the content of modern awards.
However, the broad scope of the Review does not obviate the need for a merit argument to be
advanced in support of a proposed variation.
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[16] 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). What is ‘necessary’ in a
particular case is a value judgment based on an assessment of the s.134 considerations having
regard to the submissions and evidence directed to those considerations.12
[17] Modern awards are dealt with in Part 2–3 of Chapter 2 of the Act. In addition to the
modern awards objective in s.134 there is another provision which is particularly relevant for
present purposes. Section 144(1) provides that each modern award must include a ‘flexibility
term’ enabling an employee and his or her employer to agree on an individual flexibility
arrangement (IFA), varying the effect of the award in relation to the employee and the
employer. The stated objective of such arrangements is ‘to meet the genuine needs of the
employee and employer’.
[18] The former Australian Industrial Relations Commission (AIRC) was required to
prepare a model flexibility clause as part of the award modernisation process governed by
Part 10A of the Workplace Relations Act 1996. On 20 June 2008 a Full Bench of the AIRC
issued a decision13 which included the determination of the model flexibility clause. The
model clause was modified in December 200814 and April 200915 to take account of
submissions from interested parties, amendments to the Ministerial Request under s.576A of
the Workplace Relations Act 1996 (Cth) and legislative change. The model term was
subsequently varied in the Transitional Review.16
[19] In the present proceedings the Australian Council of Trade Unions (the ACTU) and a
number of unions contend that Ai Group’s proposed variations are unnecessary and that the
flexibility sought can be obtained through the model flexibility term. It is also contended by
the Construction, Forestry, Mining and Energy Union (Construction and General Division)
(CFMEU (C&G)) that the flexibility term inserted into modern awards pursuant to s.144(1) is
the only permitted means of providing for any individual flexibility agreement between an
employee and an employer.17 We deal with these arguments later in our decision.
[20] In performing functions and exercising powers under a part of the Act (including Part
2–3: Modern Awards) the Commission must also take into account the object of the Act and
any particular objects of the relevant part (see s.578(a)). The object of Part 2–3 is expressed in
s.134, the modern awards objective, to which we have already referred. The object of the Act
is set out in s.3.
[21] As we have mentioned, the modern awards objective is that modern awards, together
with the NES provide a fair and relevant minimum safety net. The NES are set out in Part 2–2
of the Act.
[22] There is one aspect of the NES which is particularly relevant for present purposes –
the right to request flexible working arrangements pursuant to s.65. As we shall see, a number
of unions contend that Ai Group’s proposed model terms in relation to TOIL and make-up
time are inconsistent with s.65 and ‘detrimental’ to employees (within the meaning of
s.55(4)). On that basis it is submitted that the claimed provisions cannot be inserted into
modern awards. We deal with that argument, and the terms of s.65, later in this decision.
[23] In dealing with matters arising in the Review the Commission will have regard to the
relevant historical context and will take into account previous decisions relevant to any
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contested issue. The context in which those decisions were made will also need to be
considered, as the Full Bench observed in the Preliminary Jurisdictional Issues decision:
“ ... In conducting the Review it is appropriate that the Commission 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.” 18
[24] The above observation is particularly relevant in the present proceedings as Ai
Group’s claims are said to be based on model clauses determined by a Full Bench of the
AIRC in the 1994 Family Leave Test Case decisions (the Family Leave Test Case). We deal
first with those decisions and the particular context in which they were made first, before
turning to the claims before us.
2. The 1994 Family Leave Test Case decisions
[25] As Ai Group readily concedes, the merits of its claim rely ‘very heavily on the logic
and findings’19 of the Family Leave Test Case. Ai Group also submits that the context of the
Family Leave Test Case decisions ‘remain salient in current context and they give great force
to our claim’.20
[26] The Family Leave Test Case was determined in two stages:
Family Leave Test Case – Stage 1 – November 1994 decision (the Stage 1 decision);21
and
Personal/Carer’s Leave Test Case – Stage 2 – November 1995 decision (the Stage 2
decision).22
[27] As will become apparent, and contrary to Ai Group’s submission, the model TOIL and
make-up time terms proposed by Ai Group do not reflect the outcome of the Family Leave
Test Case. In this regard it is important to understand the sequence of decisions dealing with
the content of the model terms determined in the Family Leave Test Case. For reasons which
will become apparent we propose to focus on the model TOIL term.
[28] At the outset we would observe that the package of measures introduced by these
decisions was intended to strike an appropriate balance between a number of objectives. As
the Full Bench of the AIRC observed in the Stage 2 decision:
“The complete package of measures represents, in our view, an appropriate balance between the
following objectives:
helping workers to reconcile their employment and family responsibilities consistent
with the Commission’s obligations under s 93A of the Act to take account of the
principles embodied in the Family Responsibilities Convention;
promoting enterprise bargaining by maintaining an incentive to bargain;
introducing greater flexibility into the award system consistent with the Commission’s
statutory obligation to ensure that ‘‘awards are suited to the efficient performance of
work according to the needs of particular industries and enterprises, while employees’
interests are also properly taken into account’’ (s 88A(c));
the need to have regard to the economic impact of our decision pursuant to the
Commission’s obligations under s 90 of the Act.
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The measures we have introduced also reflect the legislative intention that the award system
needs to change in response to changed industrial needs. Such an approach is also consistent
with the views expressed by the Commission in the September 1994 Safety Net Adjustments
and Review decision (at 146; p 52).
In this regard we wish to emphasise that this test case decision will result in the variation of
the safety net of minimum wages and conditions of employment. The award safety net is
intended to underpin bargaining. As such, variations in the safety net should not, in our view,
pre-empt the outcome of bargaining. Rather such award variations should follow outcomes in
the bargaining process.
On this basis the measures we have decided to implement can be reviewed over time having
regard to prevailing industrial, economic and social circumstances.”23
[29] The issues arising from the Family Leave Test Case were dealt with in two stages. The
Stage 1 decision, which is the most relevant for present purposes, extended access to sick
leave so that employees could use their sick leave entitlement to provide care or support for
an ill member of the employee’s family and introduced a range of facilitative provisions
(including TOIL and make-up time). The form of the TOIL provision was not determined in
the Stage 1 decision and the Full Bench referred the settlement of the orders arising from its
decision to Vice President Ross, following a conference of the parties. The orders were the
subject of a decision by the Vice President on 3 February 1995,24 in which his Honour dealt
with aspects of the TOIL model clause. Of particular relevance to the present proceedings is
that part of his Honour’s decision dealing with the rate of compensation for overtime work:
“The second point in dispute concerns the rate of compensation for overtime work.
The ACTU argued that time-off in lieu should be at overtime rates, that is if the overtime rate
is time and a half then one and a half hours time-off accrues for every overtime hour worked.
In support of their submission the ACTU relied on a preliminary FATEXT search which it
was submitted showed that "of the awards which currently provide time-off in lieu the
overwhelming majority provide such time-off at overtime rates". [ACTU submission at p.7]
Further it was submitted that the awards which provide time-off in lieu of overtime at ordinary
rates could be distinguished on the following grounds:
the time-off in lieu provisions are very restrictive in their application and are
not able to be taken simply at the election of the employee;
overtime hours on weekends and public holidays accrue at overtime rates; and
time-off at overtime rates generally came about under the structural efficiency
principle.
It was also argued that in the limited number of awards which provide time-off in lieu at
ordinary time employees usually retained the right to be paid out at overtime rates.
The ACCI, ACM, MTIA and the States of NSW, Victoria and WA opposed the ACTU's
proposal and submitted that time-off in lieu should be taken at the rate of one hour for each
hour worked. In support it was argued that such a proposal would introduce greater flexibility
but with the protection that it's implementation could only be by employee election with the
consent of the employer. The ACCI submission concluded that:
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‘In these circumstances we see no need to restrict the extent of employee and employer
agreement by requiring overtime rates, something which can be done on an
overaward basis.’ [ACCI written submission at p.7]
In my view the objectives of the Test Case decision can best be met by providing that time-off
in lieu be at ordinary time. I would however add two limitations:
existing award provisions dealing with time-off in lieu of overtime should not
be amended until this matter is finally determined by the Commission after the
August 1995 proceedings; and
the order will ensure that employees retain the right to be paid out at overtime
rates.
The approach adopted will assist employees in reconciling their employment and family
responsibilities while maintaining an incentive to bargain and introducing greater flexibility
into the award system.”25
[30] The next relevant decision in the sequence is the Third Safety Net Adjustment &
Section 150A Review—October 1995 decision (the October 1995 Third Safety Net decision).26
In that decision the AIRC set out a number of general propositions in relation to the nature
and extent of facilitative provisions.27 These general propositions were subsequently adopted
in the Family Leave Test Case Stage 2 decision, as is apparent from the following extract
from that decision:
“In the course of these proceedings a range of issues has been raised in relation to the
facilitative provisions included in Stage 1 and the provisions proposed to be introduced in
Stage 2 ...
In the Third Safety Net Adjustment & Section 150A Review—October 1995 decision (1995)
61 IR 236 at 255–257; Print M5600 at pp 27–30, the Commission made five points in relation
to the nature and extent of facilitative provisions.
1. At this stage the Commission intends to adopt an approach to the insertion of
facilitative provisions into awards which reflects the fact that such clauses are self-
executing. Facilitative provisions need to be distinguished from other mechanisms
which may be used to introduce flexibility at the enterprise. Enterprise flexibility
clause agreements, certified agreements, enterprise flexibility agreements, consent
awards or consent award variations all involve an assessment by the Commission of
both the process leading to such agreements and their impact on the employees
covered by them. By contrast the use of facilitative provisions at the enterprise level is
not subject to Commission scrutiny.
2. Facilitative provisions should continue to protect employees while allowing
appropriate flexibility for individual enterprises in the way an award clause is
implemented.
3. Facilitative provisions should not be a device to avoid award obligations because
the Commission is obliged to ensure, among other things, that “employees are
protected by awards that set fair and enforceable minimum wages and conditions of
employment that are maintained at a relevant level [s 88A].” (Review of Wage Fixing
Principles—August 1994 decision (1994) 55 IR 144 at 157; Print L4700 at p 33.)
Neither should the adoption of a facilitative provision result in unfairness to the
employees covered by the award. Given the lack of Commission scrutiny in relation to
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the operation of these clauses, a proposal that a facilitative provision should not
operate to reduce ordinary time earnings is inadequate to ensure that in all cases
unfairness to employees will not occur.
In order to provide the necessary protection and prevent unfairness the Commission
will generally only insert facilitative provisions which require majority agreement at
the enterprise level before they become operative. For example:
‘The employer and the majority of employees at an enterprise may agree to
establish a system whereby the employer and individual employees may agree
to take an RDO at any time despite any award provision to the contrary.’
In essence facilitative provisions should require a majority decision to introduce a
particular form of flexibility which may then be utilised by agreement between the
employer and individual employees.
Once a majority decision has been taken its terms should, in order to provide a record
of them, be set out in the time and wages records kept in accordance with regs 131A-
131R of the Industrial Relations Regulations (Cth).
The Commission considers that these safeguards are appropriate given the self-
executing nature of facilitative provisions and the fact that facilitative provisions have
a capacity to directly or indirectly affect all employees at an enterprise.
In circumstances where the Commission has decided that it is appropriate that a
facilitative provision requires the agreement of a majority of employees at an
enterprise prior to the introduction of a particular type of flexibility, then the relevant
provisions should also provide that:
(a) unions which are both party to the relevant award and who have members
employed at the particular enterprise must be informed of the intention to
utilise the facilitative provision and be given a reasonable opportunity to
participate in negotiations regarding its use;
(b) participation by a union in this process does not mean that the consent of
the union is required prior to the introduction of the agreed flexibility
arrangements at the enterprise. Unions will not have a right to veto the
introduction of such arrangements;
(c) union involvement and the requirement for majority consent are only
required at the time a decision is made to introduce a particular form of
flexibility at the enterprise. Thereafter the only requirement is agreement
between the employer and an individual employee to access the agreed
flexibility.
The Commission may also decide to establish a monitoring process under which a
particular facilitative provision is, after a reasonable period, reviewed to consider its
impact in practice.
Such a process can be used to ensure that the practical operation of a facilitative
provision is:
not unreasonably impeding the introduction of greater flexibility at the enterprise
level; or
resulting in unfairness to employees.
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If these objectives are not being met then the provision may be amended.
4. Award parties are not required to include facilitative provisions in all award clauses.
An award-by-award process is preferable as it allows the needs and circumstances of
the enterprises and employees covered by the award to be properly taken into account
in accordance with s 88A of the Act. However all award parties must specifically
address the use of facilitative provisions as a means of making their awards more
relevant and better suited to the needs of individual enterprises. In this regard, award
parties should consider giving priority to an examination of award provisions which
affect the organisation of work or the efficiency of enterprises covered by the award.
5. Facilitative provisions should be used to promote the efficient organisation of work
at the enterprise level and be designed to avoid the prescription of matters in
unnecessary detail.
We intend to apply these guidelines to the issues before us. As the October 1995 Review
decision was handed down after the conclusion of the proceedings before us, we will provide
the parties with an opportunity to make further submissions in relation to the application of
these guidelines to the particular facilitative provisions dealt with in this decision. This can be
done during the proceedings to settle the orders arising from this decision.”28
[31] Two other aspects of the Stage 2 decision are particularly relevant for present
purposes.
[32] First, the Full Bench dealt with a general submission advanced by the ACTU in
relation to the scope of the facilitative provisions. The ACTU had submitted that the
facilitative provisions should only be available in the context of leave to care for ill family
members. The Full Bench rejected the limitation proposed in the following terms:
“In the November 1994 decision we did not intend that the facilitative provisions determined
would be restricted in the manner proposed by the ACTU. That decision states that the
package of measures decided upon were intended to represent an appropriate balance between
a number of objectives including (146; p 39):
‘ ... introducing greater flexibility into the award system consistent with the
Commission’s statutory obligation to ensure that ‘awards are suited to the efficient
performance of work according to the needs of particular industries and enterprises,
while employees interests are also properly taken into account’ [section 88A(c)].’
The November 1994 decision also envisaged that the range of facilitative measures to be
introduced would facilitate the introduction of greater flexibility at the workplace level. In
particular the Commission stated (148; pp 41-42):
‘The approach we have adopted is consistent with the submissions of ACCI that the
award system at present inhibits the capacity of employers and employees to reconcile
work and family responsibilities. ACCI submitted that awards should be amended in a
number of respects, including to provide for more flexibility in the use of annual leave
entitlements, to amend award provisions which prevent employers allowing
employees to make-up time at ordinary time rates at a time agreed between them, to
remove restrictions on part-time work, provide adequate flexibility in rostered days
off, and to introduce fully flexible working hours.
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We also note that the measures to be introduced will facilitate the introduction of
greater flexibility at the workplace level and a number of the studies we have referred
to reported that employees saw additional flexibility as the primary means of
reconciling work and family responsibilities.’
The limitation proposed by the ACTU would mean that employees would have no access to
the facilitative provisions for reasons other than the illness of a member of the employee’s
household or immediate family. If this limitation were adopted employees would not have
access to the flexibilities provided in the package of measures we have determined for the
purpose of attending, for example, school events and curriculum days. This would be contrary
to existing practice. As noted in the November 1994 decision the most common method used
by employees with dependent children to arrange time off to attend such events was flexible
work arrangements. The evidence submitted in the Stage 1 proceedings was that two out of
three employees with dependent children arranged time off for these child related activities by
using make-up time, flexitime or rostered days off (140; pp 29-30).
We reject the limitation proposed for the reasons given.”29
[33] Second, the Full Bench dealt with the form of the TOIL provision arising from the
Stage 1 decision. As we have set out above, in the decision settling the relevant orders from
the Stage 1 decision Vice President Ross stated that the rate of compensation of overtime
worked in the context of TOIL would need to be reconsidered in the Stage 2 proceedings. In
the Stage 2 proceedings the ACTU argued that TOIL should be at overtime rates, that is if the
overtime rate is time and a half then one and a half hours’ time off accrues for every overtime
hour worked. The ACTU also sought clarification in relation to the level of protection
afforded to existing award conditions prescribing TOIL of payment for overtime at overtime
rates. The Full Bench dealt with these submissions, as follows:
“We have not been persuaded to depart from the form of order determined by Vice President
Ross. In relation to the issue raised by the ACTU concerning the level of protection to be
afforded to existing award provisions we have decided that such provisions should be retained.
Accordingly where an award currently provides for time off in lieu of payment for overtime at
overtime rates then that part of the package we have determined should not be inserted into the
award in question. In this regard the approach adopted by the Commission in the variation of
the Victorian Local Authorities Interim Award 1991 (Print M2791) is appropriate.”30
[34] The TOIL provision in the draft framework order attached to the Stage 2 decision was
in the following terms:31
“5.1 An employee may elect, with the consent of the employer, to take time off in lieu of
payment for overtime at a time or times agreed with the employer.
5.2 Overtime taken as time off during ordinary time hours shall be taken at the ordinary time
rate, that is an hour for each hour worked.
5.3 An employer shall, if requested by an employee, provide payment, at the rate provided for
the payment of overtime in the award, for any overtime worked under par 5.1 of this subclause
where such time has not been taken within four weeks of accrual.”
[35] In the decision settling the orders arising from the Stage 2 decision32 Senior Deputy
President Marsh decided, in accordance with the view expressed by the Full Bench in the
Stage 2 decision, awards that had not already been varied to provide for make-up time or
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TOIL should include the general provisions relating to facilitative clauses determined in the
October 1995 Third Safety Net decision.33
[36] The application of the observations in the October 1995 Third Safety Net decision to
the model TOIL and make-up time clauses arising from the Family Leave Test Case was
complicated by the fact that some awards had been varied prior to the October 1995 Third
Safety Net decision. In the decision setting the orders arising from the Stage 2 decision Senior
Deputy President Marsh dealt with these issues in the following way:
“Turning to existing facilitative clauses, namely, annual leave, time off in lieu and make up
time. As set out above many awards had been varied for the First Stage of family leave, prior
to the Third Safety Net and Section 150A Review decision being handed down. Guidance as to
whether or not these provisions should be distributed in light of the latter decision is found in
the Third Safety Net and Section 150A Review decision which states in relation to the
guidelines as quoted above and repeated here:
‘The safeguards we have provided in relation to facilitative provisions are intended to
apply to applications to insert a facilitative provision into an award. They are not
intended to automatically apply to existing facilitative provisions. A party wishing to
vary an existing provision to incorporate any of the protections we have referred to
will bear the onus of establishing that such a protection is necessary in all the
circumstances.’
I consider that nothing has been put to justify a departure from this procedure to apply to any
existing facilitative clause including those provided for in the First Stage Family Leave
proceedings. It therefore forms part of this decision that the employers’ draft will apply to
awards which have had facilitative clauses inserted as a result of the First Stage decision. At
the time of hearing an application to vary the award for the Second Stage a party can seek to
vary the existing provisions to incorporate any of the protections provided for in the Full
Bench decision if such protections are not already provided. In doing so the party will bear an
onus of establishing that such protection is necessary given the nature and circumstances of
the matter.
Equally, a party seeking to vary an existing facilitative clause which already provides for the
protections currently provided for in the Full Bench decision, will bear an onus in establishing
that particular grounds warrant an individual member exercising his/her discretion in favour of
granting the application.
In relation to awards which have not yet been varied to provide for facilitative clauses, the
general position of the Commission as set out in the Full Bench decision and reproduced in
this decision will apply. Any party seeking a departure from the test case provisions must bear
the onus to justify that the departure is necessary in the circumstances of the matter.”34
[37] The Senior Deputy President then dealt with a number of specific proposals in relation
to the facilitative provisions arising from the Stage 2 decision (including TOIL and make-up
time). In the course of finalising the orders arising from this decision her Honour decided as
follows:
“(i) to include a majority consent provision whereby the employer and the majority of
employees at the enterprise may agree to introduce (relevantly) make up time or TOIL which
may then be utilised by agreement between the employer and individual employee;35
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(ii) to include the following provisions in (relevantly) the model TOIL and make up time
clauses:
‘(a) unions which are both party to the relevant award and who have members
employed at the particular enterprise must be informed of the intention to utilise the
facilitative provision and be given a reasonable opportunity to participate in
negotiations regarding its use;
(b) participation by a union in this process does not mean that the consent of the union
is required prior to the introduction of the agreed flexibility arrangements at the
enterprise. Unions will not have a right to veto the introduction of such arrangements;
(c) union involvement and the requirement for majority consent are only required at
the time a decision is made to introduce a particular form of flexibility at the
enterprise. Thereafter the only requirement is agreement between the employer and an
individual employee to access the agreed flexibility’36; and
(iii) make provision for recording facilitative provisions in the ‘time and wages book’ and, in
particular, the wording to be reflected in the order will be consistent with the wording of the
Stage 2 decision, that is:
‘Once a decision has been taken its terms should be set out in the time and wages record
kept in accordance with regn 131A-131R of the Industrial Relations Regulations’.”37
[38] The parties were directed to submit draft orders consistent with her Honour’s decision
and the awards before her Honour were subsequently varied to give effect to her decision.
One of the awards so varied was the Re Laundry Industry (Victoria) Interim Award 1993. The
relevant parts of that variation order which deal with TOIL are reproduced below:
“8 Time Off in Lieu of Payment
Notwithstanding provisions elsewhere in the award, the employer and the majority of
employees at an enterprise may agree to establish system of time off in lieu of overtime
provided that;
8.1 An employee may elect, with the consent of the employer, to take time off in lieu of
payment for overtime at a time or times agreed with the employer.
8.2 Overtime taken as time off during ordinary time hours shall be taken at this ordinary
time rate, that is an hour for each hour worked. (unless otherwise provided elsewhere in the
award)
8.3 An employer shall if requested by an employee, provide payment at the rate provided
for the payment of overtime as prescribed in clause 11 of this award, for any overtime worked
under this subclause where such time has not been taken within four weeks of accrual.
8.4 Paragraph 1 is subject to the employer informing the ALHMWU which is both party
to the Award and which has members employed at the particular enterprise of its intention to
introduce an enterprise system of time off in lieu of overtime flexibility, and providing a
reasonable opportunity for the union to participate in negotiations.
8.5 Once a decision has been taken to introduce an enterprise system of time off in lieu, in
accordance with this clause, its terms must be set out in the time and wages records kept
pursuant to regulations 131A - 131R of the Industrial Relations Regulations.
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8.6 An employer shall record time off in lieu arrangements in the time and wages book as
prescribed in clause 23 of this Award at each time this provision is used.”38
[39] Finally, in the subsequent Parental Leave Test Case 2005 decision39 a Full Bench of
the AIRC considered, among other things, a claim by ACCI and the National Farmers
Federation (NFF) to adopt a model TOIL clause in the following terms:
“To assist employees in balancing their work and family responsibilities, an employee may
elect, with the consent of the employer, to take time in lieu of payment for overtime at an
agreed time or times.
Overtime taken as time off shall be taken at the ordinary time rate, that is an hour for each
hour worked.”
[40] At paragraphs 278–279 of its decision the Full Bench summarised the submissions put
in relation to the above claim, as follows:
“ACCI/NFF submitted that many key awards “have not delivered the options and capacities this
clause is so clearly designed to deliver” and that in practice “many federal award provisions
differ from this model, they are complicated, and they do not actually deliver direct access to
direct toil arrangements”. Reasons given included that time off in lieu provisions in many
awards have been made subject to employee majority veto clauses, a circumstance that
ACCI/NFF submitted is inappropriate and impractical.
The ACTU opposed any variation to the existing standard, submitting that there is no evidence
of problems with it or sufficient evidence to justify removal of the safeguard entitling an
employee to elect to convert their time off back to wages if more than four weeks has elapsed
since the entitlement was earned. The ACTU also submitted that a majority of awards already
containing time off in lieu provisions provide for such time off at overtime rates (rather than
ordinary rates) and that if the ACCI/NFF proposal was granted, workers taking time off for
family reasons would be disadvantaged.” (footnotes omitted)
[41] The Full Bench rejected the ACCI/NFF claim in relation to TOIL.40
[42] It is appropriate that the Commission take into account previous decisions relevant to
any contested issue. As we have mentioned, previous Full Bench decisions should generally
be followed, in the absence of cogent reasons for not doing so.41 The particular context in
which those decisions were made will also need to be considered. We return to our
consideration of the Family Leave Test Case later in our decision. We now turn to the claims
before us.
3. Claims
3.1 Ai Group claim
[43] Ai Group has made two claims in this matter. The first seeks to insert a model TOIL
clause into a number of modern awards.42 The proposed model clause is set out below:
“Time off in lieu of payment for overtime
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(a) An employee may elect, with the consent of the employer, to take time off in lieu of
payment for overtime at a time or times agreed with the employer.
(b) Overtime taken as time off during ordinary time hours shall be taken at the ordinary
time rate, that is an hour for each hour worked.
(c) An employer shall, if requested by an employee, provide payment, at the rate provided
for the payment of overtime in the award, for any overtime worked under paragraph
(c) of this subclause where such time has not been taken within four weeks of
accrual.”
[44] During the course of the hearing on 5 May 2015 we raised a number of issues
concerning Ai Group’s proposed model clause. These issues primarily related to the payment
of untaken TOIL upon termination of employment and the need to address the potential for
the indefinite accrual of TOIL. Ai Group addressed these issues in its supplementary written
submission of 18 May 2015 and proposed the addition of the following paragraphs to its
proposed model clause:
“(d) Subject to an employee’s right under (c), where the employee and employer are
unable to reach agreement within 12 months as to when the time off in lieu will be
taken, the employer may require the employee to take time off in lieu at a time of its
choosing. This will be subject to the employer providing the employee with at least
4 weeks’ notice of the need to take such time off.
(e) If, upon termination of employment, an employee has an accrued entitlement to take
time off in lieu which the employee has not yet accessed, the employee will be paid at
the overtime rates applicable under the award for the corresponding overtime
worked.”
[45] Ai Group submitted that the additional paragraphs are necessary to ensure that the
relevant modern awards meet the modern awards objective, as contemplated by s.138. In
respect of proposed paragraph (d) Ai Group submitted that it is intended to ensure that
“employers retain some influence over the level of TOIL accruals beyond the initial decision
to agree to this flexibility” while ‘not removing the right of an employee to have his or her
accrued entitlements paid out at overtime rates’.43 It is also submitted that proposed paragraph
(d) will be likely to “ensure employees are incentivised to access TOIL in a timely manner,
rather than accruing it for an extended period or indefinitely”.44 We return to the question of
safeguards and TOIL later in this decision.
[46] Currently, 83 of the 122 modern awards provide for TOIL and of those, 59 provide
that time off for TOIL is calculated at the ordinary rate (i.e. “time for time”) rather than the
overtime rate (i.e. “time for penalty”).
[47] Ai Group propose to insert the model clause into 26 modern awards that do not
currently have a TOIL provision (Attachment A) and to delete existing TOIL provisions in 10
modern awards and replace them with the model clause (Attachment B). In each of these 10
modern awards the existing TOIL provision provides for time off to be calculated on the basis
of time for penalty.
[48] Ai Group also seeks to vary 51 of the 122 modern awards (Attachment C) to insert the
following make-up time provision:
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“Make-up time
(a) An employee may elect, with the consent of the employer, to work make up time
under which the employee takes time off during ordinary hours, and works those
hours at a later time, during the spread of ordinary hours provided in this award.
(b) An employee on shiftwork may elect, with the consent of their employer, to work
make up time under which the employee takes time off during ordinary hours and
works those hours at a later time, at the rate which would have been applicable to the
hours taken off.”
3.2 AMWU claim
[49] The AMWU seeks to vary the provisions relating to TOIL in the following awards:
Manufacturing and Associated Industries and Occupations Award 2010
Food, Beverage and Tobacco Manufacturing Award 2010
Graphic Arts, Printing and Publishing Award 2010
Sugar Industry Award 2010
Airline Operations—Ground Staff Award 2010
[50] The clause proposed by the AMWU is in the following terms:
“(d) An employee may elect, with the consent of the employer, to take time off instead of
payment for overtime at a time or times agreed with the employer, provided that:
(i) An employee accrues time off instead of payment for overtime at the overtime
penalty; and
(ii) If requested by an employee, an employer must within one week of receiving a
request pay the employee for any overtime worked. The employee must be paid at
overtime rates; and
(iii) Within four weeks of working the overtime the employee and employer must
agree on when the time off will be taken otherwise payment for the overtime must be
made to the employee; and
(iv) The amount of accrued hours of untaken Time Off Instead of Payment for
Overtime will be recorded on an employee’s payslip.”
[51] The main effect of the proposed variations is to provide for the accrual of TOIL on a
‘time for penalty rate’ basis rather than on time for time basis.
[52] The AMWU claim also seeks to vary the general award provisions relating to
facilitative provisions in the modern awards which are the subject of its claim. The effect of
these related variations is to provide that access to TOIL arrangements by individual
agreement is dependent upon an agreement between the employer and the majority of
employees in the workplace before such a facilitative provision can be utilised. Further, the
variations sought include an additional safeguard which requires that the unions which have
members employed in an enterprise covered by the award ‘must be informed by the employer
of the intention to use the facilitative provision and be given a reasonable opportunity to
participate in the negotiations regarding its use’.
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4. Submissions
[53] Written submissions in support of the various claims were filed by Ai Group, AMWU
and Master Builders Australia (MBA). The ACTU and 11 other organisations subsequently
filed submissions in reply.45 A further 10 supplementary submissions were filed following the
hearing on 5 May 2015. A list of all submissions received can be found at Attachment D.
[54] It is convenient to first summarise the submissions in relation to the AMWU claim
before turning to the Ai Group claims.
[55] As we have mentioned, the AMWU variations provide for the accrual of TOIL on a
‘time for penalty rate’ basis, rather than an ‘hour for hour’ basis and incorporate a range of
safeguards. The AMWU submitted that the safeguards contained within its proposed clause
would ensure:
(i) overtime worked is compensated for its unsocial characteristics and value by
ensuring that TOIL accrues at the overtime penalty rate;
(ii) employees have had an opportunity to discuss TOIL across the workplace and
are aware of their rights before using the provisions, by ensuring that
employers seek a majority agreement under the facilitative provisions as well
as individual agreement where it is intended that there is widespread use of
TOIL across the organisation;
(iii) access to union advice about TOIL is readily available by ensuring the
additional safeguard applies to the TOIL agreement;
(iv) employee applications for TOIL are genuinely considered by employers by
ensuring that a time for TOIL to be taken is agreed within 4 weeks of working
overtime, otherwise payment for overtime must be made to the employee; and
(v) employees can review their TOIL arrangements by ensuring that the TOIL
agreements are kept as part of the employee records which are required by the
Act and the Fair Work Regulations 2009 and are accounted for in payslips
provided to employees where there is an ongoing accrual.
[56] The AMWU submits that the proposed variations would ‘go towards achieving the
modern awards objective’, and addresses a number of the s.134(1) considerations, in
particular:
the relative living standards and the needs of the low paid (s.134(1)(a));46
the need to encourage collective bargaining (s.134(1)(b));47
the need to promote social inclusion through increased workforce participation
(s.134(1)(c));48
the need to promote flexible modern work practices and the efficient and productive
performance of work (s.134(1)(d));49
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the need to provide additional remuneration for overtime, working unsocial, irregular
or unpredictable hours etc (s.134(1)(da));50
equal remuneration for work of equal or comparable value (s.134(1)(e));51
the likely impact of any exercise of modern award powers on business, including on
productivity, employment costs and the regulatory burden (s.134(1)(f));52
a simple, easy to understand stable and sustainable modern award system
(s.134(1)(g))53; and
likely impact on employment growth etc (s.134(1)(h)).54
[57] The AMWU advances two other general points.
[58] First, it is submitted that since the Family Leave Test Case and the Parental Leave
Test Case55 there have been a number of legislative changes which are relevant to any
consideration of TOIL in modern awards, in particular:
the right to request flexible working arrangements (s.65);
every modern award must contain a flexibility term (s.144); and
the modern awards objective has been varied to insert s.134(1)(da) – the Commission
must now take into account the need to provide additional remuneration for employees
working overtime.
[59] The second point advanced is that the AMWU draws a distinction between TOIL and
make-up time. Make-up time being granted on an hour for hour basis may be justified as a
genuine family flexibility as ‘it affords time of value to the employee at the time during which
it is needed’. TOIL initiated by an employer is different – the time being sought from the
employee is time that might otherwise be spent attending to family responsibilities.
[60] The ACTU supports the AMWU’s claim.
[61] The Australian Workers’ Union (AWU) supports the AMWU’s application to vary
TOIL provisions in relation to the following awards:
Manufacturing and Associated Industries and Occupations Award 2010;
Food, Beverage and Tobacco Manufacturing Award 2010;
Sugar Industry Award 2010; and
Airline Operations–Ground Staff Award 2010.
[62] The preliminary position of the CFMEU (C&G) is that the TOIL provisions sought to
be varied by the AMWU be removed. In the alternative, should the Commission reject the
CFMEU (C&G)’s primary submission, the CFMEU (C&G) would support the AMWU’s
proposed variation with respect to the Manufacturing and Associated Industries and
Occupations Award 2010.
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[63] Ai Group opposes the variations proposed by the AMWU.56 It submits that the
proposal is at odds with the balance struck by the Full Bench in developing a TOIL clause to
best meet the objectives of the Family Leave Test Case.
[64] Ai Group submits that the AMWU seeks to depart from the test case TOIL clause by:
(i) creating disincentives for employers to agree to TOIL by requiring employers
to administer time off based on the applicable penalty rate, rather than actual
time worked;
(ii) restricting the availability of TOIL to employers and employees, in some
circumstances, based on the vote of a majority of employees;
(iii) giving unions unreasonable and unnecessary rights to interfere with TOIL
arrangements that are supported by the relevant employer and employee;
(iv) imposing a four week time restriction on the taking of TOIL; and
(v) imposing unnecessary and additional record-keeping obligations on TOIL
where existing recording keeping obligations under the Fair Work Regulations
2009 are appropriate and adequate.
[65] Ai Group also submits that the AMWU’s proposals are inconsistent with the modern
awards objective and its reply submission discusses each of the s.134 considerations.57
[66] The Printing Industries Association of Australia (PIAA) opposes the AMWU’s
application to vary the Graphic Arts, Printing and Publishing Award 201058 and supports the
retention of the award’s current TOIL provision. PIAA submits that the existing clause
provides “time for time” which is consistent with the Family Leave Test Case, and that a
change to TOIL at overtime rates would make the arrangement very unattractive to employers
leading them to refuse an employee’s request to take TOIL. As to the additional “safeguards”
sought by the AMWU, PIAA submits:
(i) the requirement for majority agreement is unnecessary in what is a matter
between an individual employee and their employer and “would add red tape,
effectively strangling and stifling an employee benefit”;59
(ii) the requirement for TOIL to be taken within four weeks is unnecessary as
clause 33.9(a) of the Graphic Arts, Printing and Publishing Award 2010
already stipulates that the employee must take the TOIL within four weeks of
working the overtime;
(iii) the requirement to keep TOIL agreements as part of the employee records
required by the Fair Work Regulations 2009 and to be recorded on payslips
would “unnecessarily increase the regulatory burden on business, and further
disincentivises the utilisation of the flexibility provisions in the workplace”.60
[67] We now turn to the submissions advanced in relation to the Ai Group claims.
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[68] Ai Group submits the model clauses replicate the facilitative provisions determined in
the Family Leave Test Case61 and provide for increased flexibility and an incentive for
employers to allow employees to better reconcile work and family commitments.
[69] Ai Group identifies a number of trends in the Australian labour market which are said
to support its claims. The trends identified are:
full-time and part-time employment – part-time work is rising and currently accounts
for 30.8% of the workforce;
participation rate – the current participation rate is drifting lower as the population
ages;
employment growth and contraction in particular industries – employment has been
growing more strongly in service sectors than in the industrial sectors for some time;
working hours patterns and trends – the weekly working hours bracket showing the
strongest growth in the past decade is the 16 to 29 hours per week bracket; and
types of employment – the number of permanent employees has been increasing over
many years and the proportion of casual employees has remained relatively stable.
[70] It is contended that the labour market trends identified support Ai Group’s contention
that the modern award system needs to be more flexible in order to achieve increased
workforce participation and to enable employees to better balance their work and family
responsibilities.
[71] Ai Group also relies on the 29 January 2015 First Findings Report from the Australian
Workplace Relations Study (AWRS) and a number of other research reports in support of its
contentions regarding flexible working practices and employee preferences.
[72] Ai Group’s submission also addresses the various considerations the Commission is
required to take into account in giving effect to the modern awards objective. We deal with
these submissions later in our decision.
[73] In its submission of 18 March 2015,62 the MBA supports and adopts Ai Group’s
submission in its entirety.
[74] In its reply submission,63 the NFF submits that while it supports the principle of make-
up time, it does not support the insertion of the proposed clause in the Horticulture Award
2010. The NFF submits the award generally contains sufficient flexibility to accommodate
arrangements of this nature.
[75] The ACTU and a number of individual unions oppose Ai Group’s claims.
[76] The ACTU64 opposes Ai Group’s claims on the following grounds:
(i) The current statutory context is significantly different to that which existed at
the time the Family Leave Test Case was decided. The ACTU details these
differences at paragraphs 80–122 of its submissions. It is submitted that the Act
[2015] FWCFB 4466
22
and modern awards are sufficient to provide the sort of flexibility Ai Group
seeks.
(ii) The proposed TOIL provisions do not include any requirements that agreements
be recorded in writing and Ai Group is seeking to avoid obligations to record
overtime hours as required by the Fair Work Regulations 2009.
(iii) Ai Group’s claims do not have the same level of safeguards as other forms of
workplace flexibility, for example, IFAs are required to be in writing and must
pass the better off overall test (BOOT).
(iv) The workplace flexibility sought by Ai Group would shift flexibility in the
employer’s favour and does nothing to assist employees to manage their working
and personal lives.
(v) The proposed provisions undermine protections for part-time employees relating
to their agreed hours and days of work. The proposed make-up time clause does
not require an agreement to be in writing in order to change an employee’s
pattern of hours and nor does it include a period of notice or a requirement that
the employee be provided with a copy of the agreement. The proposed make-up
time clause would also enable an employer to alter an employee’s roster without
complying with the relevant award obligations.
(vi) Ai Group has not brought any evidence in support of its submission that the
proposed clauses are necessary to ensure that the relevant awards meet the
modern awards objective. The ACTU addresses each of the s.134 considerations
at paragraphs 124–173 of its submissions.
[77] The AMWU—Vehicle Division opposes the Ai Group claims and, in particular, the
claim to remove the existing TOIL provision in the Vehicle Manufacturing, Repair, Services
and Retail Award 2010 (the Vehicle RS&R Award). It submits that Ai Group has failed to
demonstrate that the variations proposed are necessary to meet the modern awards objective
and that the relevant award already provides for mechanisms to assist in achieving flexibility.
[78] The Australian Nursing and Midwifery Federation (ANMF) opposes the claim made
by Ai Group. It supports the submissions of the ACTU and submits that, given the existing
award flexibility provisions, the claims are unnecessary and are a reduction of existing
entitlements.
[79] The AWU opposes the variations sought by Ai Group.65 The AWU relies on the
submissions of the ACTU and further submits Ai Group has not established a sufficient merit
case, nor advanced satisfactory evidence, in support of the proposed variations.
[80] The CFMEU (C&G)66 opposes the variations sought by Ai Group with respect to the
following awards:
Building and Construction General On-site Award 2010
Joinery and Building Trades Award 2010
Mobile Crane Hiring Award 2010.
[81] The CFMEU (C&G) submits that Ai Group has failed to advance a sufficient merit
based argument in support of the variations proposed. It also submits that the inclusion of
TOIL and make-up time provisions in the three relevant awards has been considered, and
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rejected, by predecessor bodies to the Commission. The CFMEU (C&G) deals with this
arbitral history at paragraphs 22–37 of its 23 April 2015 submission and we return to that
aspect of the submission at the end of our decision. Two additional, general, arguments are
advanced in opposing Ai Group’s claim:
(i) Ai Group’s proposed model terms require the consent of the employer and on
that basis are inconsistent with s.65, detrimental to an employee when
compared to the NES (s.55(4)) and should be rejected.
(ii) The model award flexibility provision in all modern awards already provides
for IFAs concerning hours of work, including any arrangement for TOIL and
make-up time. The model award flexibility term also includes a number of
safeguards which are not a feature of the Ai Group proposed clauses. On this
basis it is submitted that the Ai Group proposal should be dismissed: “the
variations are not only unnecessary but also a reduction in the safety net”.67 It
is also contended that the flexibility term is the only permitted means of
providing for an individual flexibility agreement between an employee and an
employer.
[82] The Construction, Forestry, Mining and Energy Union (Mining and Energy Division)
(CFMEU (M&E)) opposes Ai Group’s application to insert or amend clauses relating to
TOIL.68 The CFMEU (M&E) submits it has an interest in the following awards:
Black Coal Mining Industry Award 2010
Mining Industry Award 2010
Electrical Power Industry Award 2010
Coal Export Terminals Award 2010.
[83] The CFMEU (M&E) supports the CFMEU (C&G) submission that Ai Group’s claim
is inconsistent with the NES, and advances the following points in support of its submission
that Ai Group’s application should be rejected:
(i) Employees will be worse off under the provisions sought and they do not
provide for appropriate “workplace flexibility” – the benefit of the proposed
clauses are “heavily skewed in favour of the employer”:
“The employer makes a saving to the extent of the employee foregoing penalty
rates and the employer has the sole discretion as to if and when an employee
may utilise those provisions. This provides a strong incentive for the employer
to pressure an employee to taking such time off at a time that suits the
employer and/or to take them in lieu of payment i.e. whether the employee
wants them or not.”69
(ii) No evidence is provided about the use of the existing provisions.
(iii) The proposals will not allow workers to better meet their caring
responsibilities:
“ ... TOIL and MUT [make-up time] are ultimately subject to the control of the
employer, an employee cannot have any confidence that they will be available
(not to mention the wage reduction problem) as and when they wish to utilise.
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In such circumstances, what employees need is a degree of certainty that they
will get the time off. With TOIL, being predicated to the availability of
overtime and with few employers guaranteeing overtime, it is hardly a reliable
option for employees with child caring responsibilities. And together with the
existence of employer discretion as to if and when such time off is taken, the
notion of certainty is non existent.”70
(iv) Ai Group fails to make any connection between the material it presents about
the changing nature of the workforce and its claim.
(v) The AWRS First Findings Report only refers to the availability of provisions
such as TOIL, it does not refer to actual usage.
(vi) Only 59 of the 122 modern awards have TOIL provisions based on an ‘hour
for hour’ entitlement.
(vii) The proposals add nothing to the existing flexibility provided by the Act and
the existing model flexibility provision in modern awards:
“The presence and utility of such arrangements are addressed in the ACTU
submissions and shall not be repeated here, save to submit that given these
flexibilities, TOIL and MUT add nothing to the already existing flexibility
arrangements available to employees and employers in circumstances where
those provisions provide employees with a form of protection such as the
better off overall test that is not present in the Ai Group application.”71
(viii) Modifying the arrangements under which working hours are performed can be
accommodated through collective bargaining and enterprise agreements:
“Employers should be encouraged to engage in enterprise bargaining rather
than endeavour to achieve favourable outcomes by varying the awards.”
72
(ix) The provisions proposed by Ai Group are not necessary to meet the modern
awards objective.73
[84] The CFMEU (M&E) also submits that the provisions proposed are ‘of no or at least
problematic value’ in relation to the awards in which it has an interest.74
[85] The Health Services Union of Australia (HSU) adopts the submissions of the ACTU
and makes submissions75 concerning the following awards:
Ambulance and Patient Transport Industry Award 2010 (Ambulance Award)
Health Professionals and Support Services Award 2010 (Health Professionals Award)
Medical Practitioners Award 2010 (Medical Practitioners Award)
Nurses Award 2010 (Nurses Award).
[86] The HSU opposes Ai Group’s application in relation to the awards in which it has an
interest. In relation to TOIL, the Ambulance Award and the Nurses Award currently provide
for TOIL at the relevant overtime rate. Ai Group seeks to replace these provisions with time
for time and the HSU opposes the Ai Group claim on the basis that it is detrimental to the
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employees concerned and may provide an incentive for employers to ‘covertly apply pressure
to an employee to accept time off as opposed to payment of the worked overtime’.76
[87] In relation to the Ai Group claim to insert a make-up time clause (insofar as it applies
to the Ambulance Award, Medical Practitioners Award, Health Professionals Award and the
Nurses Award) the HSU submits that these applications are unnecessary and undermine the
entitlements and protections contained within these awards. In particular, it is submitted that
the make-up time proposals would allow employers to vary an employee’s roster but avoid
the restrictions contained in the awards. The HSU further submits that the flexibilities detailed
in the ACTU’s submission and contained within awards gives an employee the ability to work
flexibly without removing or reducing the protections afforded in modern awards. The HSU
supports the ACTU’s submissions regarding protections provided to part-time employees in
relation to agreed days and hours to be worked.
[88] The Maritime Union of Australia (MUA) adopts the ACTU’s submissions and opposes
the insertion of the proposed provisions in the following awards, submitting their inclusion
would either have little utility or would disturb the interrelationship of existing award clauses:
Dredging Industry Award 2010
Ports, Harbours and Enclosed Water Vessels Award 2010
Seagoing Industry Award 2010
Stevedoring Industry Award 2010.
[89] The MUA submits the existing award flexibility clause provides sufficient flexibility
for employers and employees to mutually agree to changes to conditions of employment,
including arrangements for when work is performed and overtime rates, with the protection of
the BOOT.
[90] The Textile, Clothing and Footwear Union of Australia (TCFUA) opposes Ai Group’s
proposals and supports the submissions of the ACTU, the CMFEU (C&G) and the AMWU.
The TCFUA submits77 that Ai Group’s proposals are neither desirable nor necessary in
ensuring that awards meet the modern awards objective. The TCFUA has an interest in the
Textile, Clothing, Footwear and Associated Industries Award 2010 and the Dry Cleaning and
Laundry Industries Award 2010.
[91] The TCFUA submits that the current statutory and award context already provides the
flexibility Ai Group seeks, albeit with appropriate safeguards and protections. The Ai Group
proposals in respect of the awards in which the TCFUA has an interest are said to undermine
and reduce current conditions and protections for employees. The TCFUA submits that Ai
Group has not advanced a merit argument and nor has it provided cogent submissions
supported by probative evidence.
5. Consideration
5.1 General
[92] The submissions advanced in respect of the Ai Group and AMWU claims deal with
both the merits of the claims and what may be regarded as preliminary jurisdictional
arguments. Two jurisdictional arguments are advanced.
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[93] The first is that Ai Group’s proposed model terms (and for that matter the terms as
sought to be varied by the AMWU) are inconsistent with s.65 and detrimental to an employee.
On that basis it is contended that s.55(4) prevents the inclusion of the proposed terms in a
modern award (the NES contention). The second jurisdictional argument is that the flexibility
term inserted into modern awards pursuant to s.144(1) is the only permitted means of
providing any individual flexibility agreement between an employee and an employer and
accordingly there is no jurisdiction to insert the provisions claimed (the IFA contention).
[94] It is convenient to deal first with the submissions which may be characterised as
preliminary jurisdictional arguments (the NES and IFA contentions), before turning to the
merit arguments.
5.2 Preliminary jurisdictional points
[95] We turn first to the CFMEU (C&G) contention that Ai Group’s claims should be
rejected as they are inconsistent with the NES. Specifically it is submitted that the TOIL and
make-up time provisions proposed by Ai Group require the consent of the employer before
the employee can access the flexibility required and as such the claimed terms are said to be
inconsistent with s.65 of the NES.
[96] Section 55 deals with the interaction between the NES and a modern award or
enterprise agreement:
“55 Interaction between the National Employment Standards and a modern award or
enterprise agreement
National Employment Standards must not be excluded
(1) A modern award or enterprise agreement must not exclude the National Employment
Standards or any provision of the National Employment Standards.
Terms expressly permitted by Part 2–2 or regulations may be included
(2) A modern award or enterprise agreement may include any terms that the award or
agreement is expressly permitted to include:
(a) by a provision of Part 2–2 (which deals with the National Employment
Standards); or
(b) by regulations made for the purposes of section 127.
Note: In determining what is permitted to be included in a modern award or enterprise
agreement by a provision referred to in paragraph (a), any regulations made for the purpose of
section 127 that expressly prohibit certain terms must be taken into account.
(3) The National Employment Standards have effect subject to terms included in a
modern award or enterprise agreement as referred to in subsection (2).
Note: See also the note to section 63 (which deals with the effect of averaging
arrangements).
Ancillary and supplementary terms may be included
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(4) A modern award or enterprise agreement may also include the following kinds of
terms:
(a) terms that are ancillary or incidental to the operation of an entitlement of an
employee under the National Employment Standards;
(b) terms that supplement the National Employment Standards;
but only to the extent that the effect of those terms is not detrimental to an employee in any
respect, when compared to the National Employment Standards.
Note 1: Ancillary or incidental terms permitted by paragraph (a) include (for example) terms:
(a) under which, instead of taking paid annual leave at the rate of pay required by
section 90, an employee may take twice as much leave at half that rate of pay; or
(b) that specify when payment under section 90 for paid annual leave must be
made.
Note 2: Supplementary terms permitted by paragraph (b) include (for example) terms:
(a) that increase the amount of paid annual leave to which an employee is entitled
beyond the number of weeks that applies under section 87; or
(b) that provide for an employee to be paid for taking a period of paid annual
leave or paid/personal carer’s leave at a rate of pay that is higher than the employee’s
base rate of pay (which is the rate required by sections 90 and 99).
Note 3: Terms that would not be permitted by paragraph (a) or (b) include (for example) terms
requiring an employee to give more notice of the taking of unpaid parental leave than is
required by section 74.
Enterprise agreements may include terms that have the same effect as provisions of the
National Employment Standards
(5) An enterprise agreement may include terms that have the same (or substantially the
same) effect as provisions of the National Employment Standards, whether or not ancillary or
supplementary terms are included as referred to in subsection (4).
Effect of terms that give an employee the same entitlement as under the National Employment
Standards
(6) To avoid doubt, if a modern award includes terms permitted by subsection (4), or an
enterprise agreement includes terms permitted by subsection (4) or (5), then, to the extent that
the terms give an employee an entitlement (the award or agreement entitlement) that is the
same as an entitlement (the NES entitlement) of the employee under the National
Employment Standards:
(a) those terms operate in parallel with the employee’s NES entitlement, but not
so as to give the employee a double benefit; and
(b) the provisions of the National Employment Standards relating to the NES
entitlement apply, as a minimum standard, to the award or agreement entitlement.
Note: For example, if the award or agreement entitlement is to 6 weeks of paid annual leave
per year, the provisions of the National Employment Standards relating to the accrual and
taking of paid annual leave will apply, as a minimum standard, to 4 weeks of that leave.
Terms permitted by subsection (4) or (5) do not contravene subsection (1)
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(7) To the extent that a term of a modern award or enterprise agreement is permitted by
subsection (4) or (5), the term does not contravene subsection (1).
Note: A term of a modern award has no effect to the extent that it contravenes this section
(see section 56). An enterprise agreement that includes a term that contravenes this section
must not be approved (see section 186) and a term of an enterprise agreement has no effect to
the extent that it contravenes this section (see section 56).”
[97] The CMFEU (C&G) advances two discrete points. First, it is said that the claimed
terms are inconsistent with s.65. Second, the CFMEU (C&G) characterises the claimed
provisions as terms that are ‘ancillary or incidental’ to the operation of an employee
entitlement under the NES or they are terms that ‘supplement’ the NES (within the meaning
of those expressions in s.55(4)). It is then submitted that the effect of the claimed terms is
‘detrimental’ to employees. If the CFMEU (C&G) is correct than the claimed provision
cannot be inserted into modern awards because of the operation of s.55(4).
[98] We turn first to the proposition that Ai Group’s claims are ‘inconsistent’ with s.65.
[99] Division 4 of Part 2–2 of the Act deals with requests for flexible working
arrangements. Section 65 is the principal provision and it provides as follows:
“65 Requests for flexible working arrangements
Employee may request change in working arrangements
(1) If:
(a) any of the circumstances referred to in subsection (1A) apply to an employee;
and
(b) the employee would like to change his or her working arrangements because
of those circumstances;
then the employee may request the employer for a change in working arrangements
relating to those circumstances.
Note: Examples of changes in working arrangements include changes in hours of work,
changes in patterns of work and changes in location of work.
(1A) The following are the circumstances:
(a) the employee is the parent, or has responsibility for the care, of a child who is
of school age or younger;
(b) the employee is a carer (within the meaning of the Carer Recognition Act
2010);
(c) the employee has a disability;
(d) the employee is 55 or older;
(e) the employee is experiencing violence from a member of the employee’s
family;
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(f) the employee provides care or support to a member of the employee’s
immediate family, or a member of the employee’s household, who requires care or
support because the member is experiencing violence from the member’s family.
(1B) To avoid doubt, and without limiting subsection (1), an employee who:
(a) is a parent, or has responsibility for the care, of a child; and
(b) is returning to work after taking leave in relation to the birth or adoption of
the child;
may request to work part-time to assist the employee to care for the child.
(2) The employee is not entitled to make the request unless:
(a) for an employee other than a casual employee—the employee has completed
at least 12 months of continuous service with the employer immediately before
making the request; or
(b) for a casual employee—the employee:
(i) is a long term casual employee of the employer immediately before
making the request; and
(ii) has a reasonable expectation of continuing employment by the
employer on a regular and systematic basis.
Formal requirements
(3) The request must:
(a) be in writing; and
(b) set out details of the change sought and of the reasons for the change.
Agreeing to the request
(4) The employer must give the employee a written response to the request within 21
days, stating whether the employer grants or refuses the request.
(5) The employer may refuse the request only on reasonable business grounds.
(5A) Without limiting what are reasonable business grounds for the purposes of
subsection (5), reasonable business grounds include the following:
(a) that the new working arrangements requested by the employee would be too
costly for the employer;
(b) that there is no capacity to change the working arrangements of other
employees to accommodate the new working arrangements requested by the
employee;
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(c) that it would be impractical to change the working arrangements of other
employees, or recruit new employees, to accommodate the new working arrangements
requested by the employee;
(d) that the new working arrangements requested by the employee would be
likely to result in a significant loss in efficiency or productivity;
(e) that the new working arrangements requested by the employee would be
likely to have a significant negative impact on customer service.
(6) If the employer refuses the request, the written response under subsection (4) must
include details of the reasons for the refusal.”
[100] Subsection 65(1) provides that if an employee would like to change his or her working
arrangements because of any of the circumstances specified in s.65(1A), then the employee is
entitled to request a change in his or her working arrangements. The terms of s.65(1) make
clear that the reason the employee would like to change their working arrangements is
because of the particular circumstances of the employee. That is, there must be a nexus
between the request and the employee’s particular circumstances.
[101] Subsection 65(1A) was inserted into the Act by the Fair Work Amendment Act 2013
and sets out the range of circumstances related to a request under s.65(1), namely, that the
employee:
is the parent, or has responsibility for the care, of a child who is of school age or
younger;
is a carer (within the meaning of the Carer Recognition Act 2010);
has a disability;
is 55 or older;
is experiencing violence from a member of the employee’s family; or
provides care or support to a member of his or her immediate family or a member of
his or her household who requires care or support because the member is experiencing
violence from the member’s family.
[102] Subsection 65(1B) explicitly provides that an employee who is a parent, or has
responsibility for the care of a child, and who is returning to work after taking leave in
connection with the birth or adoption of the child, is entitled to request to work on a part-time
basis, to assist the employee to care for the child.
[103] Subsection 65(2) limits the class of employees entitled to request a change in their
working arrangements to:
an employee (other than casuals) with at least 12 months’ continuous service with the
employer immediately before making the request; and
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a casual employee who is a long term casual employee (defined in s.12 as a casual
employee who has been employed by the employer on a regular and systematic basis
for a sequence of periods of employment during a period of at least 12 months) and
who has a reasonable expectation of continuing employment by the employer on a
regular and systematic basis.
[104] Requests for a change in working arrangements must be in writing and set out the
details of the change sought and the reasons for the change (s.65(3)).
[105] The employer must provide a written response within 21 days stating whether the
employer grants or refuses the request. If the request is refused the written response must
include details of the reasons for the refusal (s.65(4) and (6)). Subsection 65(5) provides that
the employer may only refuse a request ‘on reasonable business grounds’. A non-exhaustive
list of ‘reasonable business grounds’ is set out in s.65(5A).
[106] For reasons which will become apparent it is not necessary for us to consider the
contention that Ai Group’s make-up time claim is inconsistent with the NES. We later reject
that aspect of Ai Group’s claim, on other grounds. Accordingly, our consideration of this
jurisdictional argument focuses on the TOIL claim.
[107] For our part, we doubt that a TOIL clause can be properly characterised as ‘ancillary,
incidental or supplementary’ to the NES within the meaning of s.55(4). The NES does not
provide for compensation for overtime or for rates of pay generally, and while TOIL might be
requested for reasons relevant to the s.65 right to request, it might also be requested for other
reasons. In the absence of an award TOIL clause, it would not be possible to make a TOIL
arrangement solely under s.65, as a TOIL arrangement trades an entitlement to payment at
overtime rates for time off. Further, changes in working arrangements obtained under s.65
may commonly be expected to endure for some time (noting, for example, the 21 day time
limit for the employer response), whereas TOIL may be agreed on a case-by-case basis.
[108] Accordingly, it appears that a TOIL clause is better characterised simply as an award
term permitted under s.139(1)(b) and/or (c) and/or (d) and/or (h) of the Act. It follows that an
award TOIL clause is not subject to the prohibition in s.55(4) of a term that is ‘detrimental to
an employee in any respect, when compared to the National Employment Standards’.
However, pursuant to ss.55(1) and 56, such a clause would be of no effect to the extent that it
‘excluded’ any provision of the NES.
[109] It seems that an award TOIL clause could only potentially exclude some or all of s.65
if:
the clause applies in circumstances where s.65 also applies (that is; where an
employee is in one of the personal circumstances specified in s.65(1A) and wishes to
take TOIL because of those personal circumstances, is not excluded by s.65(2), and
makes the request in writing setting out the details required by s.65(3)); and
the clause would enable a request for TOIL in those circumstances to be refused by the
employer without the employer having reasonable business grounds for the refusal.
[110] We do not consider that an award TOIL clause could lawfully operate in this way, to
circumvent the protections in s.65 of the Act:
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If a request for TOIL was made in accordance with s.65 then an employer could not
assert that the provision for employer consent in the TOIL clause itself allowed it
freedom to decline the request as it saw fit, as this would in effect exclude s.65(5).
Therefore, to this extent, the TOIL clause would be of no effect pursuant to s.56.
If a request for TOIL was made in circumstances where s.65 applies but was not made
in accordance with that section, then a request for TOIL could always subsequently be
made in accordance with s.65, even if it had previously been refused under the terms
of the TOIL clause.
[111] However, out of an abundance of caution it is considered desirable to make the
relationship between an award TOIL clause and s.65 of the Act clear on the face of the model
TOIL term. This will avoid any uncertainty about an employer’s obligations where a request
for TOIL is made in circumstances where s.65 also applies. We return to this issue later in our
decision.
[112] We now turn to the proposition, also advanced by the CFMEU (C&G), that the
flexibility term inserted into modern awards pursuant to s.144(1) is the only permitted means
of providing for any individual flexibility agreement between an employee and an employer.
[113] The CFMEU contends that s.144 is intended to ‘cover the field’ in respect of the issues
identified as being within the scope of the flexibility terms. The following oral submission
was put in support of this contention:
“We submit that the flexibility term, and the requirements contained therein, should be the only
provision that allows for an agreement between an individual employee and his or her
employer of the matters covered the scope of the clause, as required by section 144(4) ...
The wording of section 144, however, is specific, and we submit covers the field in regard to
the issues identified in the scope of the flexibility term; that is, arrangements for when work is
performed, which in accordance with section 139(1)(c) includes hours of work, rostering,
notice periods, rest periods, and variations to working hours; and section 139(1)(d) of which
includes overtime rates.”78
[114] The argument put seems to proceed on the following basis:
1. A modern award must include a flexibility term (s.144(1)).
2. The Commission has determined the scope of the model flexibility term to
include ‘arrangements when work is performed’.
3. The expression ‘arrangements for when work is performed’ includes ‘hours of
work, rostering, notice periods, rest breaks and variations in working hours’
(see s.139(1)(c)) and overtime rates (see s.139(1)(d)).
4. Ai Group’s TOIL and make-up time model terms fall within the scope of the
model flexibility term.
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5. The model flexibility term inserted into modern awards pursuant to s.144(1) is
a ‘code’ and is the only way in which individual flexibility provisions can be
included in a modern award.
[115] Ascertaining the proper construction of a statutory provision necessarily begins with
the ordinary grammatical meaning of the words used, having regard to their context and
legislative purpose.79
[116] We turn first to the language of s.144. Subsection 144(1) provides that a modern
award must include a ‘flexibility term’ enabling an employee and his or her employer to agree
on an IFA which varies ‘the effect of the award in relation to the employee and the employer
in order to meet the genuine needs of the employee and employer’.
[117] Subsections 144(2) and (3) deal with the effect of an IFA:
“144 Flexibility terms
Effect of individual flexibility arrangements
(2) If an employee and employer agree to an individual flexibility arrangement under a
flexibility term in a modern award:
(a) the modern award has effect in relation to the employee and the employer
as if it were varied by the flexibility arrangement; and
(b) the arrangement is taken, for the purposes of this Act, to be a term of the
modern award.
(3) To avoid doubt, the individual flexibility arrangement does not change the effect
the modern award has in relation to the employer and any other employee.”
[118] Importantly, an IFA has the same legal effect as a variation to the modern award,
insofar as it concerns the direct parties to the IFA.
[119] Subsections 144(4) and (5) deal with the requirements pertaining to flexibility terms:
“Requirements for flexibility terms
(4) The flexibility term must:
(a) identify the terms of the modern award the effect of which may be varied by an
individual flexibility arrangement; and
(b) require that the employee and the employer genuinely agree to any individual
flexibility arrangement; and
(c) require the employer to ensure that any individual flexibility arrangement must
result in the employee being better off overall than the employee would have been if
no individual flexibility arrangement were agreed to; and
(d) set out how any flexibility arrangement may be terminated by the employee or the
employer; and
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(e) require the employer to ensure that any individual flexibility arrangement must be
in writing and signed:
(i) in all cases—by the employee and the employer; and
(ii) if the employee is under 18—by a parent or guardian of the employee; and
(f) require the employer to ensure that a copy of any individual flexibility arrangement
must be given to the employee.
(5) Except as required by subparagraph (4)(e)(ii), the flexibility term must not require that any
individual flexibility arrangement agreed to by an employer and employee under the term
must be approved, or consented to, by another person.”
[120] The model flexibility term in all modern awards is set out at Attachment E.
[121] Section 145 of the Act is also relevant in this context:
“145 Effect of individual flexibility arrangement that does not meet requirements of
flexibility term
Application of this section
(1) This section applies if:
(a) an employee and employer agree to an arrangement that purports to be an
individual flexibility arrangement under a flexibility term in a modern award;
and
(b) the arrangement does not meet a requirement set out in section 144.
Note: A failure to meet such a requirement may be a contravention of a provision of
Part 3-1 (which deals with general protections).
Arrangement has effect as if it were an individual flexibility arrangement
(2) The arrangement has effect as if it were an individual flexibility arrangement.
Employer contravenes flexibility term in specified circumstances
(3) If subsection 144(4) requires the employer to ensure that the arrangement meets the
requirement, the employer contravenes the flexibility term of the award.
Flexibility arrangement may be terminated by agreement or notice
(4) The flexibility term is taken to provide (in addition to any other means of termination
of the arrangement that the term provides) that the arrangement can be terminated:
(a) by either the employee, or the employer, giving written notice of not more
than 28 days; or
(b) by the employee and the employer at any time if they agree, in writing, to the
termination.”
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[122] Section 145 deals with the situation where an IFA does not meet a requirement of
s.144. In such circumstances the arrangement still has effect as if it were an IFA. However,
where an employer is required to ensure that a requirement for a flexibility term in s.144(4) is
met (such as ensuring that the employee is better off overall), failure to do so is a
contravention of the flexibility term of the award (s.145(3)).
[123] There is nothing in the plain language of ss.144 or 145 to support the proposition
advanced by CFMEU (C&G). Nor does the relevant extrinsic material provide any support for
the proposition advanced. Further, the legislative context tells against the proposition
advanced.
[124] Division 3 of Part 2–3 of the Act deals with the terms of modern awards. Subsection
136(1) provides that a modern award must only include terms that are permitted or required
by:
“(a) Subdivision B (which deals with terms that may be included in modern awards); or
(b) Subdivision C (which deals with terms that must be included in modern awards); or
(c) section 55 (which deals with interaction between the National Employment Standards and
a modern award or enterprise agreement); or
(d) Part 2-2 (which deals with the National Employment Standards).”
[125] Importantly, s.136(2) provides that a modern award must not include terms that
contravene:
“(a) Subdivision D (which deals with terms that must not be included in modern awards); or
(b) section 55 (which deals with the interaction between the National Employment Standards
and a modern award or enterprise agreement).”
[126] We have earlier dealt with the interaction between Ai Group’s proposed model clauses
and the NES (that is the issue raised by s.136(2)(b)).
[127] In determining whether the proposed model clauses can be included in a modern
award two preliminary questions must be determined:
(i) Are the model clauses terms permitted or required by Subdivisions B or C,
s.55 or Part 2–2?
(ii) Are the model clauses terms that must not be included in a modern award?
[128] Turning to the second matter first, Subdivision D of Division 3 of Part 2–3 of the Act
sets out the terms which must not be included in modern awards. A modern award must not
include:
an ‘objectionable term’ as defined in s.12 (s.150);
a term that has no effect because of s.326(1) (which deals with unreasonable payments
and deductions for the benefit of an employer) or s.326(3) (which deals with
unreasonable requirements to spend an amount) (s.151);
terms about right of entry (s.152);
discriminatory terms, within the meaning of s.153;
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terms and conditions of employment that are determined by reference to State or
Territory boundaries or are expressed to operate in one or more, but not every, State
and Territory (s.154); and
terms dealing with long service leave (s.155).
[129] The model clauses proposed by Ai Group are not excluded by any provision in
Subdivision D of Division 3 of Part 2–3, and no party contended to the contrary.
[130] We now turn to the first preliminary question. Relevantly, for present purposes,
Subdivision B of Division 3 of Part 2–3 deals with terms that may be included in modern
awards. In particular, s.139(1)(b), (c), (d) and (h) provide:
“A modern award may include terms about any of the following matters:
(b) ... and the facilitation of flexible working arrangements, particularly for employees with
family responsibilities;
(c) arrangements for when work is performed, including hours of work, rostering, notice
periods, rest breaks and variations to working hours;
(d) overtime rates; …
(h) leave, leave loadings and arrangements for taking leave ...”
[131] It seems to us that Ai Group’s proposed model clauses are plainly terms of the type
contemplated by one or more of the provisions set out above.
[132] The objects of Part 2–3, and of the Act generally, are also relevant. The modern
awards objective in s.134 (described in the Act as an ‘overarching provision’) is for practical
purposes the object of Part 2–3. It provides that the Commission ‘must ensure that modern
awards, together with the NES, provide a fair and relevant minimum safety net of terms and
conditions’ (see paragraph [10] above). The modern awards objective applies to the
performance or exercise of the Commission’s functions or powers under Part 2–3
(s.134(2)(a)) and accordingly applies to the Review. In ensuring that the modern awards
objective is met the Commission is required to take into account the s.134 considerations, one
of which is “the need to promote flexible modern work practices” (s.134(1)(d)). Such a
consideration tells against the construction argument advanced by the CFMEU (C&G).
[133] In performing functions and exercising powers under a part of the Act (including Part
2–3: Modern Awards) the Commission must take into account the object of the Act and any
particular objects of the relevant part (see s.578(a)). The object of Part 2–3 is expressed in
s.134 – the modern awards objective - to which we have already referred. The object of the
Act is set out in s.3, as follows:
“3 Object of this Act
The object of this Act is to provide a balanced framework for cooperative and productive
workplace relations that promotes national economic prosperity and social inclusion for all
Australians by:
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(a) providing workplace relations laws that are fair to working Australians, are
flexible for businesses, promote productivity and economic growth for Australia’s
future economic prosperity and take into account Australia’s international labour
obligations; and
(b) ensuring a guaranteed safety net of fair, relevant and enforceable minimum
terms and conditions through the National Employment Standards, modern awards
and national minimum wage orders; and
(c) ensuring that the guaranteed safety net of fair, relevant and enforceable
minimum wages and conditions can no longer be undermined by the making of
statutory individual employment agreements of any kind given that such agreements
can never be part of a fair workplace relations system; and
(d) assisting employees to balance their work and family responsibilities by
providing for flexible working arrangements; and
(e) enabling fairness and representation at work and the prevention of
discrimination by recognising the right to freedom of association and the right to be
represented, protecting against unfair treatment and discrimination, providing
accessible and effective procedures to resolve grievances and disputes and providing
effective compliance mechanisms; and
(f) achieving productivity and fairness through an emphasis on enterprise-level
collective bargaining underpinned by simple good faith bargaining obligations and
clear rules governing industrial action; and
(g) acknowledging the special circumstances of small and medium-sized
businesses.” (emphasis added)
[134] The object of the Act speaks, in general terms, of a legislative purpose that seeks to
balance fairness and flexibility. An interpretation of s.144(1) which limits the scope for
facilitative provisions in modern awards seems inimical to such a purpose.
[135] While not expressly put by the CFMEU (C&G), an aspect of the contextual approach
upon which it seems to rely is the general proposition that where a particular procedure is
designated to achieve something other procedures are impliedly excluded, reflected in the
maxim expressum facit cessare tacitum. As Gavan Dixon CJ and Dixon J said in Anthony
Hordern and Sons Ltd v The Amalgamated Clothing and Allied Trades Union of Australia80:
“When the Legislature explicitly gives a power by a particular provision which prescribes the
mode in which it shall be exercised and the conditions and restrictions which must be
observed, it excludes the operation of general expressions in the same instrument which might
otherwise have been relied upon for the same power.”
[136] Similarly, in R v Wallis; Ex parte Employers Association of Wool Selling Brokers81
Dixon J said: ‘[A]n enactment in affirmative words appointing a course to be followed usually
may be understood as importing a negative, namely, that the same matter is not to be done
according to some other course.’ In that case the Court held that a section of an act that
indicated the manner in which an arbitrator was to deal with a particular issue precluded the
arbitrator dealing with that matter in accordance with more general procedures provided for in
that act.
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[137] We are not persuaded that the maxim operates such that s.144(1) impliedly limits
s.139(1) so that facilitative provisions which fall within the scope of the model flexibility
term cannot be the subject of a separate award provision.
[138] It is important to appreciate that there are significant conceptual and practical
differences between the model flexibility term and facilitative provisions of the type proposed
by Ai Group. As we have mentioned, an IFA entered into pursuant to the flexibility term has
effect in relation to the employee and employer concerned as if it were a variation to the
modern award. Indeed the IFA is taken, for the purposes of the Act, to be a term of the
modern award. Facilitative provisions operate in quite a different way.
[139] A ‘facilitative provision’ was described by a Full Bench of the AIRC, in the
September 1994 Safety Net Adjustments and Review decision, as:
“ ... that part of an award clause which enables agreement at enterprise level to determine the
manner in which that clause is applied at the enterprise. A facilitative provision normally
provides that the standard approach in an award provision may be departed from by agreement
between an individual employer and an employee or the majority of employees in the
enterprise or part of the enterprise concerned. Where an award clause contains a facilitative
provision it establishes both the standard award condition and the framework within which
agreement can be reached as to how the particular clause should be applied in practice.”82
[140] The above definition was subsequently adopted in the Family Leave Test Case (Stage
1 decision),83 which introduced a number of facilitative provisions, including in respect of
make-up time and TOIL.
[141] The substantive difference between an IFA and a facilitative provision is that a
facilitative provision is an award term which prescribes the extent to which an employee and
employer may depart from the usual method of implementing an award entitlement. Hence, in
relation to overtime, a TOIL facilitative provision permits an agreement between an employee
and employer to take time off in place of the overtime payment that would otherwise have
been payable for working the overtime. An IFA, on the other hand, is not so limited. Subject
to meeting the BOOT, an IFA may vary any substantive award entitlement within the scope of
the model flexibility term.
[142] The differences between the flexibility term and facilitative provisions such as TOIL
and make-up time are such that they cannot be said to operate in the same way and
accordingly the maxim expressum facit cessare tacitum does not apply.
[143] To summarise, the plain language of ss.144 and 145 do not support the proposition
that the model flexibility term inserted into modern awards pursuant to s.144(1) is intended to
be the only way in which individual flexibility provisions can be included in a modern award.
Further, s.139(1) provides that awards may include terms about certain matters, including
terms about ‘(b) … the facilitation of flexible working arrangements’. The legislative context,
including the objects of Part 2–3 and of the Act generally, also tell against the proposition
advanced by the CFMEU (C&G).
[144] The ordinary grammatical meaning of the words of s.144, having regard to their
context and purpose, do not support the proposition that the model flexibility term inserted
into modern awards pursuant to s.144(1) is a ‘code’ and is the only way in which individual
flexibility provisions are to be included in a modern award. It follows that we reject the
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jurisdictional argument advanced by the CFMEU (C&G). We now turn to the merits of the
AMWU’s claim.
5.3 AMWU claim—the merits
[145] The stated purpose of the AMWU’s claim is ‘to ensure that employees are safeguarded
against abuse of flexibility by employers and ... that the use of ... TOIL does not disadvantage
employees’.84
[146] It is alleged that the TOIL provisions in the awards sought to be varied by the AMWU
are being abused by employers. In particular the AMWU advanced the following submission:
“Safeguards against employer abuse of the provisions is critical as there is both anecdotal and
first hand evidence of employers asking employees to take TOIL at one hour for each hour of
overtime worked instead of being paid their overtime penalty rates without informing
employees that they also have a right to choose payment for overtime over TOIL. This abuse is
compounded by employers having the ability to not agree to the time off to be taken once it
has accrued.”85
[147] In the course of its submissions the AMWU advanced the following critique of the
standard TOIL provision:
“TOIL initiated by an employer results in an agreement where the obligations of the employer
to provide TOIL are not concrete and may result in an entitlement that may never be accessed
or in the worst scenario is not kept track of by either party and is never claimed. Unclaimed
TOIL results in a financial windfall to the employer at the expense of a minimum safety net
reliant employee.”
[148] In support of its contention that the safeguards proposed were ‘critical’ because of
‘anecdotal and first hand evidence’ of employer abuse of existing TOIL provisions the
AMWU called one witness – Mr Zachary Carleton. Mr Carleton is a second year adult
apprentice employed by Crystal Printing Solutions Pty Ltd (Crystal Printing) under the terms
of the Graphic Arts, Printing and Publishing Award 2010. The PIAA called Mr Neil
Zaltsman, the State Manager of Crystal Printing and tendered an extract from the company’s
time and wages records (Exhibit PIAA 1).
[149] The gravamen of Mr Carleton’s evidence is set out at paragraphs 4–10 of his statement
(Exhibit AMWU 2).
“4. My experience of Time Off In Lieu occurred about a year ago, around March 2014. I
recall that I was asked by my supervisor words to the effect of:
“Are you able to work back?”
5. I asked, “Would it be for a couple of hours?”
6. My supervisor said, “Yes.”
7. I recalled being told that the company did not pay overtime and so I asked:
8. “What would I be paid for working the extra hours?”
9. He replied words to the effect: “You would not be paid overtime, but you would get
Time Off In Lieu.”
10. I replied words to the effect: “Sorry I can't do the extra hours”.”
[150] In the course of his oral evidence Mr Carleton referred to other occasions in the six
months or so from March–August 2014 when similar conversations took place:
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“There was half a dozen other times where he’d walked past my area and to say, ‘Are you able
to stay back matey?’ And, you know, I’d say, “Is it overtime’ and he’d just go, ‘No, time off’.
And I’d just refuse on that basis.”86
[151] There is some inconsistency in Mr Carleton’s evidence regarding the number of
occasions in which such conversations took place. Elsewhere in his evidence Mr Carleton
confirms that the incident referred to at paragraphs 4–10 of his statement was the only such
incident. The following exchanges took place during the course of Mr Carleton’s cross-
examination:
“Ms Blewett: Yes, and you’ve just had this one experience?
Mr Carleton: Yes, that’s all I could use as a basis for my time off in lieu experience, yes …87
Ms Blewett: Going back to the conversation you say you had with Mr Dwyer. It just
happened once?
Mr Carleton: Yes. That – yes, yes.
Ms Blewett: And the company has not taken any action against you because of your refusal
to work overtime on that occasion?
Mr Carleton: Well, I don’t know if there was more overtime that could have been worked in
the future. After that incident that they just didn’t ask to do, because of the fact of – that I did
not want to do overtime for time off in lieu. That’s, you know, above my head. I don’t know
anything about that.
Ms Blewett: Yes, but you haven’t …
Mr Carleton: As far as I know, I wasn’t punished or mistreated or you know, denied a break
because of that, no.”88 (emphasis added)
[152] The underlined part of Mr Carleton’s answer is inconsistent with the proposition that
he was offered overtime (on the basis of TOIL) on half a dozen occasions.
[153] At its highest, Mr Carleton’s evidence is that on about half a dozen occasions over a
period of about six months in 2014 he was offered overtime on the basis that he would get
TOIL and he declined the offers made. We accept this aspect of Mr Carleton’s evidence.
[154] As we have accepted the contested part of Mr Carleton’s evidence, it is unnecessary to
deal with the Jones v Dunkel point raised by the AMWU in relation to the failure to call Mr
Dyer.
[155] We also note that there is no evidence that any adverse action was taken against Mr
Carleton because he refused to do the overtime on the terms proffered. Indeed, Mr Carleton
confirmed as much in his evidence (see paragraph [151] above). Further, the time and wages
records provided show that he did in fact work overtime on a number of occasions in 2015
and was paid the appropriate overtime rate (see Exhibit PIAA 1).
[156] Mr Zaltsman has no knowledge of the discussions to which Mr Carleton attests at
paragraphs 4–12 of his statement and cannot explain the comment (at paragraph 7) that Mr
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Carleton had been told that Crystal Printing ‘did not pay overtime’. The gravamen of Mr
Zaltsman’s evidence is set out at paragraphs 15–17 of his statement (Exhibit PIAA 2):
“15. For a limited period during 2014, we did ask some of our employees if they’d consider
working overtime and then take TOIL, hour-off-for-hour-worked. This was during a difficult
period for Crystal Printing, and we asked employees to consider doing it to assist our business.
16. During this period, some employees elected to work overtime and take TOIL, hour-off-for-
hour worked. Other employees chose to work overtime and be paid at the GAPPA overtime
rates.
17. We subsequently stopped asking employees to consider taking TOIL (hour-off-for-hour-
worked) for overtime worked.”
[157] We accept Mr Zaltsman’s evidence. He was not challenged on his evidence that during
the limited period in 2014 to which he refers, some employees elected to work overtime and
received TOIL and others worked overtime and were paid at the appropriate overtime rates;
and the challenge to his credibility was unconvincing.89
[158] It is unnecessary for us to comment on whether the approach taken by Crystal Printing
for a limited period in 2014 was in breach of the relevant award or constituted adverse action
within the meaning of the Act. What is clear is that conduct occurred over a limited period,
some time ago.
[159] The AMWU – Vehicle Division also called a witness – Warren Leslie Butler – who
gave some evidence in relation to the use of the existing TOIL provision in the Vehicle RS&R
award. Mr Butler is the Assistant National Secretary of the AMWU – Vehicle Division and
the gravamen of his evidence on this issue is set out at paragraphs 13-14 of his statement
(Exhibit AMWU – Vehicle 1),:
“Although the Award provision clearly stipulates that TOIL may only be taken if an employee
elects to utilise this provision (and provided an employer consents), I am aware that there have
been cases reported where employers pressure employees to take time off in lieu of overtime
payment where:
a. Retail sales slows in the Retail and Repair Industry; or
b. Productions slows in the manufacturing sector.
Although this is not the purpose of the TOIL provision, employers have been using these
provisions as a cost management tool in contravention of the Award provisions.”
[160] Further, in the course of his oral evidence Mr Butler agreed with the proposition that
the union had never prosecuted any employer for an alleged contravention of the TOIL
provision and then said that ‘there have been a number of issues when contraventions have
been discussed, and those matters have been resolved at the workplace’.90 We note that no
particulars were provided of the cases referred to by Mr Butler – no details as to the number
of such cases or of the employers involved.
[161] The evidence adduced falls well short of establishing a pattern of systemic abuse of
existing TOIL provisions.
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[162] The AMWU also addresses each of the s.134 considerations in its written
submissions.91 It is submitted that granting the claim will have a ‘neutral impact’ on the
matters identified in s.134(1)(b) and (f) and a range of submissions are advanced in relation to
the other s.134 considerations. We now turn to those matters and in doing so note that they
are advanced in the context of a claim to vary an existing TOIL term. As we shall see when
considering part of the Ai Group’s claims, different considerations arisen when the claim in
question is to insert a TOIL term in a modern award which does not presently contain such a
provision.
[163] In relation to ‘relative living standards and the needs of the low paid’ (s.134(1)(a)), it
is submitted that low paid employees ‘are particularly reliant on overtime penalties and other
penalty rates and loadings to advance their relative living standards in a financial sense’ and
that ‘the ability to have an influence over the time available to attend to family and personal
responsibilities is an important contributing factor which assists low paid employees in
improving their non-financial living standards’.92 It is also submitted that where an employer
initiates a TOIL arrangement and is under no obligation to grant accrued TOIL the employee
is affected in the following ways:
“(a) The financial living standards are immediately diminished when compared to the
alternative scenario where they are paid for the overtime as they do not have the
immediate benefit of funds which they have worked for and those funds continue to
be at the disposal of the employer, earning interest or engaged in other money earning
activity the employer decides;
(b) Their non-financial living standards are immediately diminished as they must take
time away from attending to their family or personal responsibilities.”93
[164] We are not persuaded by the submission advanced. The point raised at paragraph (a)
arises in every instance where an employee agrees to a TOIL arrangement. Indeed that is the
necessary outcome of such an arrangement – the employee receives time off in lieu of the
overtime payment that would otherwise be payable. As to paragraph (b), it is not clear to us
what point is being advanced. Entering into a TOIL arrangement does not mean that the
employee must take time away from their family or personal responsibilities. A TOIL
arrangement provides the opportunity for additional time to be spent on family or other
responsibilities. We accept that working overtime necessarily reduces the time an employee
has to spend with their family or personal responsibilities but that is quite a different matter
and unrelated to the impact of a TOIL arrangement.
[165] In relation to ‘the need to promote social inclusion through increased workforce
participation’ (s.134(1)(c)), the AMWU advance two points. First, it is contended that the
variations proposed ‘will increase the proper use of TOIL as a flexibility aimed at ensuring
employees have greater influence of the time they have available for family responsibilities’.94
The second point is that providing increased flexibility to assist employees to manage their
work and family responsibilities will improve workforce participation rates.
[166] The first point is not relevant to the consideration identified in s.134(1)(c), namely the
promotion of ‘social inclusion through increased workforce participation’. The social
inclusion referred to in this context is employment. In other words, s.134(1)(c) requires the
Commission to take into account the need to promote increased employment.
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[167] The second point advanced proceeds on the assumption that the variations proposed
will increase the utilisation of TOIL. As we observe later, there is no evidentiary basis for
such an assumption.
[168] As to s.134(1)(d), it is submitted that the variation proposed will improve the ‘uptake
and use’ of TOIL provisions and thereby promote flexible work practices. It is further
contended that when ‘used effectively’ TOIL provisions ‘provide employers with an ability to
increase capacity and therefore productivity at periods where overtime is required from the
same employee’.95 These submissions are unpersuasive. There is no evidence as to the current
utilisation of TOIL in the awards sought to be varied and nor is there any evidence in support
of the proposition that the changes sought will increase the use of such provisions. The
submission advanced is simply an assertion and is contested by Ai Group. While the changes
proposed may make TOIL more attractive for employees (by providing compensatory time
off) they will necessarily reduce the incentive for employers to agree to such arrangements.
The submissions that the proposed variations will improve productivity are unsubstantiated
and unconvincing.
[169] Section 134(1)(da) refers to ‘the need to provide additional remuneration’ for, among
other things, ‘employees working overtime’. The AMWU contends that the effect of
s.134(1)(da) is that an employee must receive additional wages or monetary entitlements for
working overtime. It is contended that the variations proposed (and in particular the provision
of compensatory time) are necessary to ensure that additional remuneration is provided for
working overtime. The following submission is advanced in this regard:
“In the context of TOIL, in order to achieve additional remuneration, that is wage or other
monetary entitlement, it would be necessary for an employee to accrue the TOIL at overtime
penalty rates.
Whilst the time taken off work is not explicitly a monetary entitlement, the accrual is a
monetary entitlement in the sense that an employee may seek payment for that entitlement or
exchange the accrued TOIL entitlement for time off.
Accruing TOIL at time for time would not satisfy the need for additional remuneration for
working overtime because it would only result in a monetary entitlement which can be
exchanged only for time equivalent to ordinary time.
The use of the word ‘additional’ must be in reference to a reference point other than the
overtime in question, and should be taken to mean additional in reference to remuneration for
ordinary time.
Therefore, to allow for accrual of TOIL at time for time, would not result in a monetary
entitlement that is ‘additional’.
The other additional protections proposed by the AMWU ensure that the TOIL is in fact a
monetary entitlement, satisfying the definition of remuneration. If TOIL is not accrued and
recorded appropriately with an appropriate mechanism for an employee to call upon or
exchange the monetary entitlement to buy back other time, then it may not satisfy the
definition of remuneration.”96
[170] The ACTU adopts the above AMWU submission.97
[171] We do not find these submissions persuasive, for two reasons.
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[172] First, contrary to the submission advanced, s.134(1)(da) does not mandate the
provision of TOIL on the basis of compensatory time. As we have observed earlier, the
modern awards objective is very broadly expressed; there is a degree of tension between some
of the s.134 considerations; and no particular primacy is attached to any of the matters
specified in s.134(1)(a)–(h). The matters specified in s.134(1)(da) are to be taken into account
in ensuring that modern awards, together with the NES, provide a ‘fair and relevant minimum
safety net of terms and conditions’. But, importantly, s.134(1)(da) does not amount to a
statutory directive that modern awards must provide additional remuneration for employees
working overtime and may be distinguished from the terms in Subdivision C of Division 3 of
Part 2–3 which must be included in modern awards, including the flexibility term to which we
have referred earlier (s.144(1)).
[173] On the basis that s.134(1)(da) does not amount to a legislative direction that all
modern awards must provide additional remuneration for working overtime, it follows that
s.134(1)(da) does not mandate the provision of TOIL on the basis of compensatory time.
[174] Second, the submission advanced conflates an existing entitlement to be paid
additional remuneration for working overtime with a provision which facilitates individual
agreements to TOIL instead of receiving the additional remuneration. A TOIL provision
which facilitates agreements to take TOIL on an ‘hour for hour’ basis is not inconsistent with
s.134(1)(da). The employee retains the right to receive additional remuneration for working
overtime (at all times including after they enter into a TOIL agreement) but may, by
agreement take TOIL.
[175] As to the ‘principle of equal remuneration for work of equal or comparable value’
(s.134(1)(e), the AMWU advances the following submission:
“... women as the predominant users of the current TOIL provisions, which provide for TOIL on
an hour for hour basis, then women as a class of workers in the industry would not be
receiving equal remuneration to their male counterparts who are paid overtime at overtime
penalty rates.
In order for women to be remunerated on an equal level to their male counterparts, the
provision of TOIL should be at the overtime penalty rate.”98
[176] The argument advanced is misconceived. TOIL is a facilitative provision – the
underlying entitlement to the payment of additional remuneration for working overtime is
retained, but by individual agreement an employee may take TOIL. It is the underlying
entitlement which determines the rate of remuneration for overtime work and on that basis the
assertion that women as a class of workers would not be receiving equal remuneration
compared to their male counterparts is incorrect.99
[177] In relation to s.134(1)(g) (‘the need to ensure a simple, easy to understand, stable and
sustainable modern award system ... ’) it is submitted that the variations sought will set out
the parameters of TOIL in a way that will ensure that the provision is easier to understand.
[178] We agree with the proposition that a TOIL provision should clearly set out the rights
and obligations of the respective parties and that it should be simple and easy to understand.
We deal later with the terms of a model TOIL provision and the changes we propose are
intended to reflect the application of such a proposition. For the reasons we set out later we
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are not persuaded that the other changes proposed by the AMWU are necessary to achieve the
modern awards objective.
[179] As to s.134(1)(h) (‘employment growth, inflation and the sustainability, performance
and competitiveness of the national economy’), the AMWU contends that ‘improving
productivity increases the possibility of employment growth’, the implication being that
granting the AMWU’s claim will increase productivity. For the reasons we have given, the
asserted connection between the AMWU’s claim and improved productivity is unconvincing.
It is also submitted that the proposed variations will improve workforce participation and on
that basis have the potential to improve the ‘sustainability, performance and competiveness of
the national economy’. It is further submitted that:
“Improving the appeal of TOIL by providing accrual of TOIL at the overtime penalty rate has a
greater potential for improving workforce participation than the current time for time
arrangements.”
[180] The submission advanced proceeds on the assumption that providing TOIL at the
overtime penalty rate will increase the utilisation of the TOIL provision. For the reasons
already given we do not accept that premise. While such a variation may make the use of
TOIL more attractive for employees it is likely to make TOIL less attractive for employers.
[181] As we have mentioned, 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 the
merit argument required depends on the variation sought. The AMWU claim seeks to vary the
TOIL provisions in five modern awards by providing for the accrual of TOIL on a ‘time for
penalty rate’ basis, rather than on a ‘time for time’ basis, and by inserting a range of
safeguards. The ‘time for penalty rate’ aspect of the claim is inconsistent with the Family
Leave Test Case standard and the AMWU has not mounted a persuasive case to depart from
that standard. No evidence has been adduced to suggest that the existing ‘time for time’ basis
for calculating TOIL has provided an impediment to the utilisation of these facilitative
provisions. We are not persuaded that the variations sought are necessary to achieve the
modern awards objective.
[182] We deal later with the safeguards to be incorporated into standard TOIL clauses.
[183] We now turn to Ai Group’s claims.
5.4 Ai Group’s claim—the merits
[184] Ai Group makes two claims:
(i) to vary 36 modern awards to insert Ai Group’s model TOIL clause; and
(ii) to vary 51 modern awards to insert Ai Group’s model make-up time clause.
[185] We deal first with the proposition raised by opponents to the Ai Group claim that the
flexibility term in modern awards is sufficient to provide the sort of flexibility sought by Ai
Group.
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(i) The flexibility term argument
[186] It is common ground that TOIL and make-up time fall within the scope of the model
flexibility term in modern awards and accordingly could potentially be the subject of an IFA.
Ai Group contends that specific facilitative provisions should be inserted in the nominated
awards for, in essence, two reasons.
[187] The first is administrative convenience. In particular, Ai Group submits that the
proposed TOIL and make-up time clauses provide a ‘more appropriate’ means of achieving
the flexibility sought. In this context, Ai Group describes the model flexibility term as
‘providing a much more cumbersome route’ for achieving such flexibilities.100
[188] The second reason advanced in support of a specific facilitative provision, which is
only advanced in relation to the TOIL claim, relates to the requirement in the model flexibility
term that any agreement entered into pursuant to the model term result in the employee being
better off overall at the time the agreement is made than the employee would have been if no
individual flexibility agreement had been agreed to. Ai Group’s TOIL claim does not provide
for TOIL at the ‘time for penalty rate’, rather an employee would get an hour off for each
hour of overtime worked. If such an arrangement was entered into as an agreement under the
model flexibility term it would give rise to a question as to whether any non-monetary benefit
that may accrue to the employee (as a result of obtaining the benefit of TOIL instead of the
overtime payment) is taken into account in deciding whether the agreement would result in
the employee being ‘better off overall’ at the time the agreement was made.101
[189] It is convenient to deal with the make-up time claim first.
[190] As mentioned, Ai Group contends that a specific facilitative provision dealing with
make-up time is a more appropriate option than leaving such arrangements to be dealt with in
accordance with the model flexibility term in all modern awards. The essence of the argument
put is administrative convenience – in short, the model flexibility term provides a number of
safeguards which Ai Group contends are unnecessary. The submission advanced is
encapsulated in the following extract from the transcript:
“Now yes, the IFA provisions, if I can call that the model term, provides one avenue and we
say that there would be a power to deal with these things but it provides a much more
cumbersome route for achieving it. These test case provisions have operated in a great many
awards for a long time, we think successfully, and without any evidence of any sort of
problem or need for there to be any additional protections in the provisions…
We say that employers prefer to...utilise those sort of informal arrangements than the more
cumbersome approach contemplated under the IFA provisions.
We take your point that there would be another avenue, it’s just that this one is better, more
appropriate. It’s consistent with what is applied very widely through the award system and has
applied for a very long time, and we can’t see how it would be necessary to impose any sort of
additional protections. It should be aligned so that everyone can access these flexibilities.
Again, coming to the point that this is something that’s beneficial to employees and we think it
should be made as easy as possible for employers to enter into these kinds of arrangements.”102
[191] Four points may be made about this aspect of Ai Group’s submission.
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[192] First, it will be recalled that Ai Group submitted that make-up time provisions operate
‘very widely’ throughout the award system. Contrary to Ai Group’s submission such
provisions are not common, indeed, at present only 38 of the 122 modern awards contain such
a provision.
[193] Second, no evidence has been adduced to suggest that the procedural requirements and
safeguards in the model flexibility term are an impediment to employers and employees
entering into arrangements with respect to make-up time.
[194] Third, depending on the award context, a make-up time facilitative provision may
create some practical difficulties due to the interaction of such arrangements with other
provisions in the award – such as rostering arrangements and award safeguards in relation to
the predictability of part-time work. The potential for such interaction is a further reason for
caution. In circumstances where the utilisation of make-up time may conflict with other award
terms it is appropriate that the BOOT be applied, as required by the model flexibility term. It
would be more appropriate for such matters to be addressed in the context of an IFA pursuant
to the model flexibility term rather than by a self-executing facilitative provision.
[195] Lastly, Ai Group contends that the model term it proposes reflects the outcome of the
Family Leave Test Case and that no further safeguards are needed. We deal with this
proposition in more detail later, suffice to say now that Ai Group’s claim does not reflect the
outcome of the Family Leave Test Case proceedings. The settlement of the orders from those
decisions resulted in a number of additional safeguards being inserted into the model terms
dealing with make-up time and TOIL. These additional safeguards are not reflected in
Ai Group’s claim.
[196] Ai Group is seeking to vary 51 of the 84 modern awards which do not presently
contain a make-up time provision. As we have mentioned, 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). We are not persuaded that it is necessary to vary the 51 modern awards
which are the subject of Ai Group’s claim in order to achieve the modern awards objective.
[197] It seems to us that agreements of the type sought to be facilitated by Ai Group’s claim
can be entered into pursuant to the model flexibility term in all modern awards. We accept
that Ai Group’s proposed facilitative provision may be more administratively convenient than
the process prescribed for entering into an IFA pursuant to the model flexibility term, but the
material before us falls short of establishing that the variations proposed are necessary, within
the meaning of s.138. In particular, no evidence was adduced to the effect that the procedural
requirements in the model flexibility term created a practical barrier to employees and
employers entering into make-up time arrangements.
[198] Different considerations arise in relation to Ai Group’s TOIL claim. We accept that
the requirement in the model flexibility term that any agreement entered into pursuant to the
model term must result in the employee being ‘better off overall’ may create a practical
impediment to entering into TOIL agreements of the type contemplated in Ai Group’s claim.
If we were persuaded as to the merit of Ai Group’s claim, that is that TOIL be available on an
‘hour for hour’ basis (as opposed to TOIL at the time for penalty rate), then it would be
necessary to insert a specific facilitative provision to that effect in order to avoid the
uncertainty associated with entering into such an agreement pursuant to the model flexibility
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term. In such circumstances a facilitative provision of the type proposed would provide a
simple decision rule and greater certainty to both employees and employers. We now turn to
the merits of Ai Group’s TOIL claim.
(ii) Ai Group’s TOIL claim
[199] Currently, 83 of the 122 modern awards provide for TOIL and of those 59 provide that
time off for TOIL is calculated at the ordinary rate (i.e. ‘time for time’) rather than the
overtime rate (i.e. ‘time for penalty’). The other 24 modern awards provide that time off for
the purpose of TOIL is calculated at the overtime rate.
[200] As we have mentioned, there are two aspects to Ai Group’s TOIL claim. The first
seeks to insert Ai Group’s model TOIL clause into 26 modern awards which do not currently
contain a TOIL provision and the second seeks to delete existing TOIL provisions in 10
modern awards and replace them with Ai Group’s model TOIL clause.
[201] The first aspect of Ai Group’s claim seeks to vary 26 modern awards in order to
‘enable an employer and employee to agree to take time off in lieu of overtime’.103 This
aspect of Ai Group’s claim proceeds on the basis that the 26 modern awards sought to be
varied do not currently contain a TOIL provision. In respect of two of the 26 modern awards
sought to be varied this assumption is incorrect - the Electrical Power Industry Award 2010
and the Horse and Greyhound Training Award 2010 already have a TOIL provision.104 We
deal later with the variations we propose in respect of existing TOIL provisions in modern
awards.
[202] Two of the remaining 24 modern awards (the Air Pilots Award 2010 and the Road
Transport (Long Distance Operations) Award 2010) do not appear to contain any overtime
provisions105 and hence the utility of a TOIL provision is not immediately obvious. The
remaining 22 modern awards sought to be varied are as follows:
Aircraft Cabin Crew Award 2010
Alpine Resorts Award 2010
Aquaculture Industry Award 2010
Black Coal Mining Industry Award 2010
Building and Construction General On–site Award 2010
Business Equipment Award 2010
Coal Export Terminals Award 2010
Concrete Products Award 2010
Cotton Ginning Award 2010
Dredging Industry Award 2010
Electrical, Electronic and Communications Contracting Award 2010
Joinery and Building Trades Award 2010
Miscellaneous Award 2010
Nursery Award 2010
Pest Control Industry Award 2010
Pharmaceutical Industry Award 2010
Plumbing and Fire Sprinklers Award 2010
Poultry Processing Award 2010
Seagoing Industry Award 2010
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Security Services Industry Award 2010
Silviculture Award 2010
Stevedoring Industry Award 2010.
[203] Three broad lines of argument are advanced in support of the first aspect of Ai
Group’s claim.
[204] First, as we have mentioned, the merits of Ai Group’s claim rely ‘very heavily on the
logic and findings’106 of the Family Leave Test Case. Ai Group also submits that the context
of the Family Leave Test Case decisions ‘remain salient in the current context and they give
great force to our claim’.107 The Family Leave Test Case deals with the calculation of TOIL.
As noted above (at paragraph [33]) the Full Bench endorsed the proposition that the model
TOIL provision provide for time off on an ‘hour for hour’ basis rather than the time for
penalty rate. In this regard, the Family Leave Test Case provides support for Ai Group’s
TOIL claim.
[205] However, the difficulty with this argument is that while some aspects of Ai Group’s
claim (such as TOIL on an ‘hour for hour’ basis) are consistent with the Family Leave Test
Case, other aspects are not. As is apparent from the arbitral history set out at paragraphs [26]–
[38] above, the Ai Group claim departs from the Family Leave Test Case standard in terms of
the safeguards incorporated into the proposed model term.
[206] Later in this decision we return to deal with the appropriateness of retaining these
safeguards in the context of modern awards.
[207] In addition, as we have mentioned, Ai Group seeks to modify the model Family Leave
Test Case TOIL claim to address the payment of untaken TOIL on termination of
employment and the potential for the indefinite accrual of TOIL (see paragraph 45 above).
[208] Further, the aspect of the TOIL claim which seeks to delete existing TOIL provisions
in 10 modern awards and replace them with Ai Group’s model TOIL clause, is inconsistent
with the approach adopted in the Family Leave Test Case. We shall return to this point
shortly.
[209] The second broad line of argument is the general proposition that the modern award
system needs to be more flexible in order to increase workforce participation and enable
employees to better balance their work and family responsibilities. Ai Group relies on a
number of labour market trends and various reports, including the AWRS First Findings
Report, in support of this contention.
[210] For our part we accept that the participation rate is falling as the population ages and
that workforce participation is a key driver of economic growth. It may also be accepted, as a
general proposition, that flexible working arrangements may encourage greater workforce
participation, particularly by workers with caring responsibilities.
[211] The projected fall in the participation rate is noted in the 2015 Intergenerational
Report:
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“Over the next 40 years, the proportion of the population participating in the workforce is
expected to decline as a result of population ageing. A lower proportion of Australians
working will mean lower economic growth over the projection period.
By 2054-55, the participation rate for Australians aged 15 years and over is projected to fall to
62.4 per cent in 2054-55, compared with 64.6 per cent in 2014-15.”108
[212] Over the past 30 years or so, the workforce participation rate of Australian women
aged 25 to 54 years has grown substantially – from 50 per cent in February 1978 to 76 per
cent in September 2014. In contrast, the workforce participation rate of men aged 25 to 54
years has fallen over the same period – from 95 per cent to 90 per cent.109
[213] However, compared with the OECD, the workforce participation of Australian parents
is noticeably lower. As the Productivity Commission observes in its ‘Childcare and Early
Childhood Learning, Inquiry Report’ (the CECL Report):
“Around 62 per cent of Australian mothers with a child under 15 years undertook some form of
work in 2009. This is about the same employment rate as in New Zealand, but lower than the
OECD average of 66 per cent. The largest discrepancy between Australia and the OECD
average is in employment rates for those mothers with a child aged 3 to 5 years. For this group,
the 60 per cent employment rate of Australian mothers is below the OECD average of 64 per
cent and trails many comparable countries such as Sweden, Denmark and Canada but is similar
to New Zealand and the United States.”110
[214] Increasing the workforce participation of mothers can result in a range of benefits to
the wider community, including reduced social and economic disadvantage as well as
increased economic output and productivity.111 In the CECL Report, the Productivity
Commission examined the scope for further increases in the workforce participation of
mothers and in that context, looked at the factors determining workforce participation
decisions. The factors identified included ‘availability of family-friendly workplace
arrangements for parents – such as flexible work arrangements, paid parental leave and
carer’s leave; school hours and holidays’.112 The availability of flexible work and other
family-friendly arrangements was described by the Productivity Commission as ‘a key
positive workforce participation driver’:113
“One set of options for supporting the workforce participation of parents is the availability of
flexible work and other family friendly arrangements by employers. These arrangements can
benefit both parents and employers. They enable parents to better manage or balance their
work and family responsibilities. They also enable employers to attract skilled staff, reduce
staff turnover, reduce recruitment and training costs, lower staff absenteeism and improve
productivity.”114
[215] These observations are broadly supported by the data from the AWRS First Findings
Report.
[216] Figure 4.4 from the First Findings Report (which is reproduced below) sets out the
availability of flexible work practices at the enterprise level:
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Figure 4.4: Availability of flexible work practices to employees of the enterprise, per cent of enterprises
Source: AWRS 2014, Employee Relations survey.
Base = 3057 enterprises.
[217] Figure 4.4 shows that in 43 per cent of enterprises TOIL was available to all
employees and was available to most employees in a further 8 per cent of enterprises. TOIL
was not available to any employees in some 34 per cent of enterprises. We note that the data
presented concerns the availability of TOIL, it provides no insight into the extent to which
TOIL is actually utilised.
[218] The AWRS asked employees to rate their level of satisfaction across seven aspects of
their job. These aspects were developed through consultation and cognitive testing processes.
Employees were required to use a 7-point scale to indicate their level of satisfaction, where
one was extremely dissatisfied and seven extremely satisfied. Employees were then asked to
rate their overall job satisfaction, considering the aspects they had just rated using the same
scale.
[219] Tables 6.1 and 6.2 from the First Findings Report deal with job satisfaction. These
tables are reproduced below.
[220] The average scores presented in Table 6.1 and Table 6.2 that are closer to seven
indicate employees were satisfied with those aspects of their employment, while scores closer
to one indicate employees were dissatisfied with those aspects.
50
24
28
43
11
55
31
12
7
6
8
4
5
7
20
18
16
15
27
9
14
19
52
50
34
58
30
49
Flexible start and finish times
Job sharing for existing employees who want to change
from full-time to part-time
Other arrangements for employees to change from full-time
to part-time
Time off in lieu of overtime
Regular or formal arrangement for working from home or
teleworking from another location
Flexible leave arrangements (such as purchasing additional
leave, cash-out leave)
Banking of hours (e.g. RDOs and Accrued Days Off)
Available to all employees (%) Available to most employees (%)
Available to some employees (%) Not available to any employees (%)
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Table 6.1: Average overall job satisfaction of employees and satisfaction with aspects of current
employment by employee gender and hours worked
All employees Female Male
All
Full-
time
Part-
time All
Full-
time
Part-
time All
Full-
time
Part-
time
Overall job satisfaction 5.42 5.37 5.56 5.49 5.43 5.59 5.33 5.32 5.44
The flexibility to balance work
and non-work commitments
5.67 5.55 6.00 5.78 5.63 6.05 5.51 5.48 5.77
The freedom to decide how to do
your own work
5.66 5.64 5.75 5.72 5.68 5.79 5.59 5.59 5.56
Your say about what happens in
your job
5.27 5.26 5.33 5.31 5.27 5.37 5.23 5.24 5.12
The total pay 4.79 4.75 4.92 4.82 4.77 4.93 4.75 4.74 4.91
The job security 5.32 5.35 5.26 5.35 5.39 5.31 5.28 5.31 4.99
The work itself 5.53 5.51 5.61 5.59 5.55 5.65 5.46 5.46 5.40
The hours worked 5.32 5.27 5.48 5.45 5.37 5.58 5.16 5.18 4.98
Source: AWRS 2014, Employee survey.
Base = 7810 respondents provided a response for their overall level of satisfaction with their current employment.
Table 6.2: Average overall job satisfaction of employees by employment size
All employees
Employed in a
small enterprise
(5–19 employees)
Employed in a
medium enterprise
(20–199
employees)
Employed in a
large enterprise
(200+ employees)
Overall job satisfaction 5.42 5.54 5.39 5.32
The flexibility to balance work
and non-work commitments
5.67 5.79 5.65 5.50
The freedom to decide how
to do your own work
5.66 5.80 5.64 5.49
Your say about what happens
in your job
5.27 5.46 5.23 5.06
The total pay 4.79 4.92 4.77 4.63
The job security 5.32 5.47 5.25 5.24
The work itself 5.53 5.61 5.51 5.45
The hours worked 5.32 5.42 5.31 5.17
Source: AWRS 2014, Employee and Employer Characteristics survey.
Base = 7810 employees provided a response for their overall level of satisfaction with their current employment. Of these employees, 1763
worked in small enterprises (5–19 employees), 4665 worked in medium sized enterprises (20–199 employees) and 1382 worked in larger
enterprises (200+ employees).
[221] Overall, female employees were more satisfied across all of the measured aspects of
employment than male employees. This is reflected in a higher average overall job
satisfaction among female employees (5.49) than male employees (5.33). Employees were
most satisfied with having flexibility to balance work and non-work commitments (5.67) and
the freedom to decide how to do their work (5.66). Average satisfaction among females was
notably higher than for males in these aspects of employment.
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[222] Male employees were most satisfied with having the freedom to decide how they can
do their own work (5.59), while female employees were most satisfied with the flexibility to
balance work and non-work commitments (5.78).
[223] After employees indicated their level of satisfaction, they were asked to consider the
level of importance of the same seven aspects of their employment. Cognitive testing revealed
that ranking all seven aspects was difficult and it was much easier and valid to restrict this
assessment to the three most important aspects, ranked from one to three. A rank of one
indicated that the respondent considered that aspect to be the most important to them when
considering their overall job satisfaction.
[224] Figure 6.1 (which is reproduced below) demonstrates the proportion of employees that
selected an aspect as the most important (i.e. the highest ranked aspect). Flexibility to balance
work and non-work commitments was considered to be the most important aspect of
employment for almost one-third (32 per cent) of employees when considering their overall
satisfaction with their current job.
[225] A higher proportion of female employees (37 per cent) considered the flexibility to
balance work and non-work commitments to be the most important aspect of employment,
compared to males (26 per cent). Regardless of the industry employees worked in, the most
important aspect of determining employee satisfaction with their current job was the
flexibility to balance work and non-work commitments.115
Figure 6.1: Aspects considered the most important when determining overall job satisfaction by gender,
per cent of employees
Source: AWRS 2014, Employee survey.
Base = 7505 respondents reported their gender and also ranked the aspects of job satisfaction by importance.
Note: Respondents by gender, who indicated that a specific item was ranked ‘1’.
32
20
16
14
9
5
4
26
19
17
18
11
4
5
37
20
15
12
8
6
3
The flexibility to balance work and non-
work commitments
The work itself
The job security
The total pay
The freedom to decide how to do your
own work
The hours worked
Your say about what happens in your
job
All employees (%)
Male (%)
Female (%)
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[226] We note that the data does not provide specific evidence of a desire, by employees or
prospective employees, for a facilitative provision of the type sought to be inserted into
modern awards. Nor is there any evidence, by any party, as to the utilisation of the current
make-up time and TOIL provisions in modern awards. Instead, we are asked to draw an
inference that such flexibility is desired by employees and would be utilised if introduced.
[227] The data presented does support a general finding that the flexibility to balance work
and non-work commitments is an important determinant for employees, particularly female
employees, when considering their overall satisfaction with their current job. Such a finding
lends some support to the proposition that the increased flexibility associated with a TOIL
facilitative provision is consistent with the encouragement of greater workforce participation,
particularly by workers with caring responsibilities.
[228] We now turn to the third broad line of argument advanced by Ai Group in support of
its claims – that the variations proposed are necessary to achieve the modern awards
objective. In the course of its submissions Ai Group addresses a number of the s.134(1)
considerations; we propose to deal with each of these matters in turn.
[229] In relation to ‘relative living standards and the needs of the low paid’ (s.134(1)(a)), it
is submitted that the provisions sought are ‘consistent with maintaining living standards and
supporting the needs of the low paid’ on the basis that they are ‘voluntary mechanisms
through which employees, including the low paid, can better enhance their living standards
while protecting their ordinary time income’.116 It is also submitted that the proposed clauses
‘facilitate employee choice as to what s/he values at a particular point in time to better align
their living standards’ and that employees who rely on overtime penalties to maintain their
living standards will not be adversely affected given the voluntary nature of the facilitative
provisions and the safeguards in the proposed clause, such as the ability to ‘cash in’ banked
overtime at the applicable overtime rate.117
[230] This consideration is neutral in our assessment of the Ai Group’s claim. While a TOIL
provision has the potential to address ‘the needs of the low paid’, by providing a means
whereby a low paid employee can balance their work and family or social responsibilities,
there is no evidence of a specific demand by low paid workers for a facilitative provision of
the type proposed. Further, the submission put in relation to ‘relative living standards’ is
misconceived and unpersuasive. The assessment of relative living standards requires a
comparison of the living standards of other relevant groups (such as those covered by
enterprise agreements).118 No attempt has been made to undertake such a comparison.
[231] As to the ‘need to encourage enterprise bargaining’ (s.134(1)(b)), Ai Group submits
that granting its claim will not adversely affect the ability of employers and employees to
collectively bargain.
[232] We note that TOIL provisions have been a feature of the award safety net for 20 years
and there is no evidence to suggest that such provisions have adversely impacted on enterprise
bargaining. We also acknowledge that there is a considerable force in the argument put by Ai
Group that it is not always appropriate for collective bargaining to provide the solution for
flexibility to accommodate individual needs that vary from person to person. As Ai Group
submits:
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“It is not appropriate or fair that a majority of employees determine whether a working parent
should be able to access TOIL or make up time. The needs of individual employees for this
type of flexibility vary significantly.”119
[233] Ai Group also contends that providing TOIL on an ‘hour for hour’ basis (as opposed
to ‘time for penalty’) will encourage enterprise bargaining. We do not find this submission
persuasive. While such a provision would provide an incentive for employees and their
representatives to bargain for a higher level of TOIL compensation it may also create a
disincentive for employers to bargain.120
[234] We are not persuaded that granting Ai Group’s TOIL claim will encourage enterprise
bargaining.
[235] In relation to the need ‘to promote social inclusion through increased workforce
participation’ (s.134(1)(c)), Ai Group submits that the availability and uptake of flexible
working arrangements will support increased workforce participation. The Productivity
Commission’s CECL Report is relied on in support of this proposition.
[236] As we have mentioned, as a general proposition we accept that flexible working
arrangements, such as TOIL, may encourage greater workforce participation, particularly by
workers with caring responsibilities. The insertion of an appropriate TOIL facilitative
provision in modern awards is consistent with the objective of promoting social inclusion
through increased workforce participation.
[237] As to s.134(1)(d) (the ‘need to promote flexible modern work practices and the
efficient and productive performance of work’), Ai Group advances the following submission:
“TOIL and make up time, while offering important flexibility valued by employees,
particularly those with caring responsibilities for either a child or elderly parent, also provides
employers with the flexibility to reach agreement with employees on arrangements that allow
work to be organised in response to the fluctuations in demand for the goods and services that
the business provides. This ensures that businesses, and employees, remain efficient and
productive.
In times of a slowdown in demand, the opportunity to access flexible work practices like TOIL
and make up time would reduce any need to shed excess labour.”121
[238] We accept the proposition that inserting a TOIL provision into a modern award which
provides for overtime but does not presently contain a facilitative provision permitting TOIL,
is consistent with the promotion of flexible modern work practices.
[239] Section 134(1)(da) refers to ‘the need to provide additional remuneration’ for, among
other things, ‘employees working overtime’. Ai Group submits that this consideration is a
neutral factor in these proceedings on the basis that utilisation of the proposed TOIL
flexibility is voluntary and does not interfere with an employee’s entitlement to additional
remuneration for working overtime hours. For the reasons given above (at paragraphs [153]–
[158]) we accept this submission.
[240] As to the ‘principle of equal remuneration for work of equal or comparable value’
(s.134(1)(e)), Ai Group contends that this is a neutral consideration in these proceedings. We
agree with that assessment.
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[241] In relation to s.134(1)(f) (‘the likely impact … on business, including on productivity,
employment costs and the regulatory burden’), Ai Group advances the general submission
that providing employees with an opportunity to choose to substitute overtime payments for
TOIL ‘will assist businesses to improve productivity and to lessen the regulatory burden’. In
particular Ai Group submits that:
“Time for time TOIL is simpler and easier for employees and employers to understand and
apply than ‘time for penalty’ TOIL … the proposed variations would improve productivity as
businesses would more easily be able to respond to fluctuations in demand for their goods and
services [and] would reduce the regulatory burden imposed on employers through inflexible
award provisions.”122
[242] We accept that the flexibility provided by a TOIL term may be said to reduce
regulatory burden, but the asserted link between the proposed variations and improved
productivity was not supported by any detailed argument and on the material before us is
tenuous at best.
[243] In relation to s.134(1)(g) (‘the need to ensure a simple, easy to understand, stable and
sustainable modern award system …’), Ai Group submits that providing greater consistency
in respect of the TOIL provisions in modern awards will further the objective of making the
award system simpler and easier to understand. We accept this submission. Greater
consistency in the provisions governing TOIL will make the modern award safety net simpler
and easier to understand.
[244] As to s.134(1)(h) (‘employment growth, inflation and the sustainability, performance
and competitiveness of the national economy’), Ai Group submits that granting its claim will
have a positive impact on employment growth and on the performance and competitiveness of
the national economy through increased workforce participation and productivity growth.
[245] As we have mentioned, we accept that flexible working arrangements, such as TOIL,
may encourage greater workforce participation, particularly by workers with caring
responsibilities. We also accept that increasing workforce participation may also result in
increased economic output and productivity.
[246] It is convenient to now deal with the arguments put against Ai Group’s claim.
[247] The merits arguments directed against the Ai Group’s claims may be distilled into
seven broad lines of argument:
(i) the current statutory context is significantly different to the context at the time
the Family Leave Test Case was decided;
(ii) the variations are unnecessary as modern awards and the Act are sufficient to
provide the flexibility sought;
(iii) Ai Group has not established a sufficient merits case, nor advanced any
satisfactory evidence in support of the proposed variations;
(iv) the safeguards contained in the proposed model terms are inadequate;
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(v) the flexibility provided by the Ai Group model terms would shift flexibility in
favour of the employer and do nothing to assist employees;
(vi) the proposed variations are not necessary to ensure that the relevant awards
meet the modern awards objective; and
(vii) the variations to existing TOIL provisions will disadvantage employees.
[248] We deal with the last point in our consideration of that aspect of Ai Group’s claim
which seeks to vary the existing TOIL provisions in 10 modern awards (see paragraphs
[282]–[293] below).
[249] As to the first point, we accept that there are some similarities and some significant
differences between the current statutory context and the context at the time the Family Leave
Test Case was decided.
[250] While the objects of the then Industrial Relations Act 1988 (Cth) are expressed in
different terms to those in the current Act, there are some conceptual similarities.123
[251] We also acknowledge that compared to the position when the Family Leave Test Case
was determined ,the current statutory framework provides additional flexibilities, protections
and rights to employees and employers, for example:
the right to request flexible working arrangements (s.65)
the making of IFAs under the model flexibility term (s.144)
personal carer’s leave (ss.95–107)
greater flexibility in relation to the taking of annual leave (s.88).
[252] There are two other important differences in the comparative statutory context.
[253] The first is that the role of modern awards and the nature of the Review are quite
different from the arbitral functions performed by the AIRC (and other predecessor tribunals)
in the past. The Review is essentially a regulatory function. In the Review context, the
Commission is not creating an arbitral award in settlement of an inter partes industrial dispute
– it is reviewing a regulatory instrument.
[254] The second important contextual difference is the modern awards objective. As we
have mentioned, the modern awards objective is central to the Review and is directed at
ensuring that modern awards, together with the NES, provide a ‘fair and relevant minimum
safety net of terms and conditions’. 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.
[255] We have had regard to these contextual differences in our consideration of the Family
Leave Test Case. Despite the differences in the statutory framework we have concluded that
some aspects of the Family Leave Test Case TOIL provision retain their cogency in the
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current statutory context. In particular, we see no reason to depart from the test case standard
regarding the calculation of time for the purpose of TOIL, that is at the ordinary rate (i.e. time
for time) rather than the overtime rate (i.e. time for penalty).
[256] Further, and contrary to those who oppose Ai Group’s claim, we are satisfied that it is
necessary to vary those modern awards which do not presently contain a TOIL provision to
insert a model TOIL provision (subject to some exceptions we mention later). Such variations
are necessary to ensure that the relevant modern awards meet the modern awards objective.
We are satisfied that Ai Group has advanced a sufficient merits case in support of such
variations, though we have provisionally reached a different conclusion as to the content of a
proposed model TOIL clause.
[257] As to the nature of the flexibility provided, the ACTU submits that the proposed
provision does not provide employees with anything more than a right to request certain rights
– they are ultimately contingent on the employer’s agreement. It is submitted that award
reliant employees are less likely to be able to access any flexibility available of their own
volition and on their own terms, and that it is more likely that such employees will have
arrangements ‘foisted upon them as and when it suits their employers’.124 The ACTU relied
on a Canadian study in this regard, (Zeytinoglu et al)125 which it submits indicates that
flexible work schedules are created for business reasons rather than for the needs of individual
workers.
[258] The ACTU also submits that if Ai Group’s claim is granted, employees will never
actually able to access the provisions because an employer will ‘say no’ in cases where there
is no benefit to it, employees will lose a significant value of the time they spent at work, and
their patterns of work will be able to be disrupted.
[259] We do not find the ACTU’s submission persuasive. Three points may be made in this
regard.
[260] First, the criticism directed at Ai Group’s proposed clause – that it is simply a right to
request which is ultimately contingent upon employer agreement – can equally be made of the
AMWU claim, which the ACTU supports. It is an inherent feature of facilitative provisions
that they are dependent upon agreement between the employer and employee.
[261] Second, the Canadian study relied upon is of limited assistance in the context of the
present proceeding. The dependent variables used in the study as a proxy for flexibility
included: long work week, flex time, compressed work week, variable work week length, and
variable work week schedule. No information was provided as to the legal parameters in
relation to accessing such flexibilities and, importantly, the study did not consider a TOIL
term of the type before us.
[262] Third, the ACTU contends that employers will never actually be able to access the
provisions because an employer will ‘say no’ in cases where they derive no benefit. This
submission is simply an assertion with no evidentiary foundation. Awards have contained
TOIL clauses in similar terms to those sought by Ai Group for about 20 years, yet no
evidence has been adduced of employer intransigence in relation to the utilisation of the
provisions. Further, the safeguards in the model TOIL term we propose will provide an
incentive for employers to agree to granting TOIL at a time of the employee’s choosing.
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[263] We now turn to the question of safeguards.
[264] As we have mentioned, the Ai Group TOIL claim departs from the Family Leave Test
Case standard in terms of the safeguards provided. The test case standard includes three
safeguards which do not feature in Ai Group’s claim:
(i) no provision is made for majority agreement prior to individual access to
TOIL;
(ii) no provision is made to notify the unions, which are both party to the award
and who have members employed in the particular enterprise, of the intention
to utilise the facilitative provision and to provide those unions with an
opportunity to participate in negotiations; and
(iii) no provision is made in respect of recording the introduction of such
facilitation.
[265] The above safeguards were regarded as appropriate at the time the Family Leave Test
Case was decided. They are also features of the AMWU claim in these proceedings.
[266] We are not persuaded that safeguards (i) and (ii) are necessary to achieve the modern
awards objective. The nature of the flexibility which is the subject of a TOIL provision only
affects the employer and the individual employee concerned and the utilisation of the
provision will depend on individual preference. It may be contrasted with a facilitative
provision relating to a change to the spread of hours or an annual close down, which will
affect most or all employees. In such cases a majority agreement safeguard may be
appropriate.
[267] In support of safeguard (ii), it is submitted that access to union advice will ensure that
employees are aware of their rights before using the provisions. In our view it is more
appropriate to provide clear decision rules regulating TOIL in the award clause itself. We
propose to incorporate a number of safeguards which will provide clear rules about the taking
and recording of TOIL. The model TOIL provision we propose is set out below. It should be
noted that this is our provisional view only.
1. Time off in lieu of payment for overtime
1.1 An employee may elect with the consent of the employer to take time off in lieu of
payment for overtime at a time or times agreed with the employer, in accordance
with this clause.
1.2 The following requirements apply to an agreement to take time off in lieu of
payment for overtime:
(a) A separate written agreement must be made by the employee and employer for
each occasion on which overtime that has been worked is to be taken as time off
in lieu. Each such agreement must:
(i) state when the employee started and ceased working overtime hours;
(ii) state that if requested by the employee the employer must pay the
employee for any accrued entitlement to take time off in lieu of payment
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for overtime which the employee has not yet used. Payment must be made
at the overtime rate applying to the overtime worked and must be made in
the first pay period following the request for payment; and
(iii) be retained as an employee record.
(b) Overtime taken as time off during ordinary time hours shall be taken at the
ordinary time rate; that is, an hour for each hour worked.
(c) The employee and employer must, within four weeks of the overtime being
worked, agree on when the time off will be taken, otherwise payment for the
overtime must be made to the employee at overtime rates in the first pay period
after that four weeks.
(d) The time off in lieu of overtime must be taken within 12 weeks of the overtime
being worked, otherwise payment for the overtime must be made to the
employee at overtime rates in the first pay period after that 12 weeks.
(e) Notwithstanding subclauses (c) and (d) above, if requested by an employee, the
employer must pay the employee for any accrued entitlement to take time off in
lieu of payment for overtime which the employee has not yet used. Payment
must be made at the overtime rate applying to the overtime worked and must be
made in the first pay period following the request for payment.
(f) If, upon termination of employment, an employee has an accrued entitlement to
take time off in lieu of payment for overtime which the employee has not yet
used, the employee must be paid for the overtime at the overtime rate applying
to the overtime worked.
1.3 An employee who is entitled to request a change in working arrangements under
section 65 of the Fair Work Act 2009 may make a request under that section for time
off in lieu of payment for overtime at a time or times specified in the request or at a
time or times to be subsequently agreed with the employer. This clause will apply to
such time off in lieu. Pursuant to section 65(5) of the Fair Work Act 2009, the
employer may refuse such a request only on reasonable business grounds.
1.4 An employer must not exert undue influence or undue pressure on an employee in
relation to a decision by the employee to make, or not make, an agreement to take
time off in lieu of payment for overtime.
Note: Under s.345 of the Fair Work Act 2009, a person must not knowingly or recklessly make a false or
misleading representation about an employee’s workplace rights under this award clause.
[268] The model term facilitates agreements between an employee and their employer to
take TOIL instead of payment for overtime at a time or times agreed, subject to appropriate
safeguards. It is proposed that TOIL will generally be calculated at the ordinary time rate,
consistent with the Family Leave Test Case standard (subclause 1.2(b)). The exception will be
in relation to those modern awards which currently provide for TOIL at the overtime penalty
rate. In those awards subclause 1.2(b) will be replaced by a reference to the time for penalty
rate.
[269] Subclause 1.2(a) provides that TOIL agreements are to be in writing. This will assist in
ensuring that both parties are aware of their rights and obligations. The retention of the TOIL
agreement as an employee record is directed at minimising subsequent disputes. In this
regard, we note that during the course of oral argument Ai Group submitted that such records
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were probably already being kept in practice, thought they had no direct evidence about the
extent of such practices.126
[270] Subclause 1.2(c) and (d) provide the framework within which the employee and
employer are to agree on when the TOIL is to be taken. Such an agreement must be reached
within four weeks of the overtime being worked or the overtime must be paid out at overtime
rates (subclause 1.2(c)). Pursuant to such an agreement the TOIL must be taken within
12 weeks of the overtime being worked, or the overtime must be paid out at overtime rates
(subclause 1.2(d)).
[271] We have considered the alternate proposal advanced by Ai Group intended to address
the potential for the indefinite accrual of TOIL. It will be recalled that Ai Group proposed a
clause in the following terms:
“(d) Subject to an employee’s right under (c), where the employee and employer are
unable to reach agreement within 12 months as to when the time off in lieu will be
taken, the employer may require the employee to take time off in lieu at a time of its
choosing. This will be subject to the employer providing the employee with at least 4
weeks’ notice of the need to take such time off.”
[272] It seems to us that including a right to direct an employee to take TOIL at a time of the
employer’s choosing is inimical to the nature of the facilitative provision.
[273] The model term is intended to provide employees with a means of trading overtime
pay for time off at a time which assists them to balance their work and non-work
commitments. The TOIL is intended to provide a benefit to the employee and be taken,
subject to the agreement of their employer, at a time of their preference. The benefit to the
employer is in the calculation of TOIL (i.e. an hour for hour rather than at the relevant
overtime penalty rate).
[274] Further, we are not persuaded that TOIL should accrue for 12 months; in our view a
12 week time period is sufficient given that the employer receives the benefit of the
employee’s labour at the time the overtime is worked.
[275] Subclause 1.2(e) is an important safeguard. It provides that if requested by the
employee, the employer must pay the employee for any accrued entitlement to take TOIL
which the employee has not yet used. Payment must be made at the overtime rate applying to
the overtime worked and must be made in the first pay period following the request for
payment. Under subclause 1.2(a)(ii), this requirement must be reflected in every written
agreement to take TOIL. As well as preserving an employee’s right to access their entitlement
to be paid at the appropriate overtime rate, subclause 1.2(e) will provide employers with an
incentive to agree to granting an employee’s request to take TOIL at a particular time.
[276] Subclause 1.2(f) deals with the payment of unused TOIL upon termination of
employment and is consistent with clause (e) of Ai Group’s model term (see paragraph [44]
above).
[277] Subclause 1.3 addresses any potential inconsistency between the NES (in particular
s.65) and the model term. Pursuant to ss.55(1) and 56 of the Act, the model term would be of
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no effect to the extent that it excluded any provision of the NES (see paragraphs [97]–[111]
above).
[278] Subclause 1.4 is consistent with the protections in s.344 of the Act.
[279] Our provisional view is that the variation of modern awards to incorporate the model
term is necessary to ensure that each modern award provides a fair and relevant minimum
safety net, taking into account the s.134 considerations (insofar as they are relevant), and
would also be consistent with the object of the Act. This is so because of the various
safeguards provided within the term itself and because it facilitates the making of mutually
beneficial arrangements between an employer and employee.
[280] As mentioned earlier, we accept that flexible working arrangements, such as TOIL,
may encourage greater workforce participation, particularly by workers with caring
responsibilities. We also accept that increasing workforce participation can result in increased
economic output productivity. The available evidence also supports a general finding that
regardless of the industry employees work in, the most important aspect of determining
employee satisfaction with their current job is the flexibility to balance work and non-work
commitments.
[281] We express a provisional view only at this stage, because we are conscious that the
scope and content of the variations we propose were not fully canvassed during the
proceedings. We propose to provide interested parties with an opportunity to make further
submissions – directed at both the model term and the proposition that all modern awards
which provide for overtime be varied to insert the model term, subject to some exceptions to
which we refer to later. A list of such awards is set out at Attachment F. The process for filing
further submissions is dealt with in Chapter 6 of this decision. We will only reach a concluded
view in respect of these issues after considering all of the further submissions filed.
[282] We now turn to the remaining aspect of Ai Group’s claim.
[283] The existing TOIL clause in each of the 10 modern awards which Ai Group seeks to
vary in the second aspect of its claim provides for TOIL to be calculated at the overtime rate.
For example, clause 28.3 of the Vehicle (RS&R) Award provides as follows:
“28.3 Time off instead of payment for overtime may be provided if an employee so elects
and is agreed to by the employer.
(a) Time off instead of payment for overtime must be taken at a mutually
convenient time within four weeks of the overtime being worked. However, an
employee with the agreement of the employer may elect to bank up to eight hours of
time off instead of overtime to be taken no later than eight weeks after the overtime
was worked.
(b) Any agreement reached in accordance with this subclause should be placed in
writing and recorded with the employee’s wage records and for file. Any hours banked
and cleared in accordance with this subclause must be recorded in the employees wage
records.
(c) Time off instead of payment for overtime must equate to the overtime rate i.e.
if the employee works one hour overtime and elects to claim time off instead of
payment the time off would be equal to time and a half.
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(d) Provided that where an employee’s employment is terminated or the
employee resigns or the entitlement has not been taken, the entitlement will be paid
out at the rate at which it was accrued.
(e) Clause 28.2 will not apply when the time is worked:
(i) by arrangement between the employees themselves;
(ii) for the purpose of effecting the customary rotation of shifts; or
(iii) in accordance with clause 24.6 in this award.” (emphasis added)
[284] The above provision has an extensive history, which is canvassed in the written
submission filed by the AMWU (Vehicle Division).127 A TOIL provision was first inserted
into the pre-modernised Vehicle Industry awards in 1990,128 and the provision has been
refined over time.129 During the award simplification review of the Vehicle Industry – Repair,
Services and Retail Award 1983 pursuant to Item 51 of Schedule 5 of the Workplace
Relations and Other Legislation Amendment Act 1996, the AIRC rejected an employer
proposal to vary the TOIL provision to remove the requirement that time off be calculated by
reference to the overtime rate and replace it with an ‘hour for hour’ provision.130
[285] As we have mentioned earlier, the Family Leave Test Case deals with the approach to
be taken to existing award provisions. The Full Bench decided that where an award currently
provided for TOIL at overtime rates, then such a provision should be retained and the model
term not be inserted into the award in question.
[286] Ai Group seeks to characterise this aspect of the Family Leave Test Case decision in
the following way:
“Ai Group submits that the Full Bench’s decision to retain existing ‘time for penalty’ TOIL
clauses was not part of the reasoning behind its decision on the terms of the standard test case
clause. It was a decision to clarify how the test case standard should interact with existing
provisions when differing approaches had been taken by the AIRC to that issue. That is, it
was a decision to clarify how applications to vary awards to reflect the Family Leave Test
Case provisions under s.113 of the IR Act should proceed when awards already contained
‘time for penalty’ TOIL clauses.
Ai Group’s application to vary existing TOIL clauses providing ‘time for penalty’ is of course
not subject to s.113 of the IR Act but subject to the Commission’s modern award powers and
the modern awards objective. It is consistent with the modern awards objective for a
consistent approach to be taken across the award system.”131
[287] Ai Group contends that the decisions which inserted TOIL at the time for penalty rate
in specific awards should be given ‘less weight’ than the Family Leave Test Case decisions,
for a range of reasons, including that they were determined by single Members and in some
cases on the basis of the consent position of the parties.132 As Ai Group put it in its
Supplementary Note dated 25 May 2015:
“Our proposals are premised on the merits and objectives of the Family Leave Test Case
Decisions – Stage 1 and Stage 2 notwithstanding the earlier existence of some other decisions
determining TOIL on an award level.”133
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[288] We do not find Ai Group’s characterisation of this aspect of the Family Leave Test
Case to be persuasive. The AIRC Full Bench plainly turned its mind to the application of its
decision to existing ‘time for penalty’ TOIL clauses and, importantly, decided not to disturb
the existing clauses.
[289] Further, Ai Group submits that certain modern awards, such as the Textile, Clothing,
Footwear and Associated Industries Award 2010 and the Nurses Award 2010 presently
contain TOIL at ‘time for penalty’ as a result of relevant award modernisation decisions
relating to the making of these modern awards.134
[290] Ai Group notes that the relevant award modernisation decisions do not provide any
explicit consideration of TOIL, but acknowledges that the issue may have been the subject of
submissions by the relevant parties. For the following reasons Ai Group submits that the
relevant award modernisation decisions should be given less weight because:
no analysis or reasoning can be deduced from the decisions regarding TOIL;
award modernisation proceedings were conducted against different objectives,
primarily the rationalisation and consolidation of a large number of awards into far
fewer;
award modernisation proceedings were constrained by the terms of the Ministerial
Request under s.576A of the Workplace Relations Act 1996 (Cth); and
insofar as the decisions related to TOIL, they were confined to particular industries
and awards.135
[291] We are not persuaded that the award modernisation decisions referred to should be
accorded ‘less weight’ than the Family Leave Test Case, as contended by Ai Group. As
observed in the Preliminary Jurisdictional Issues decision of 17 March 2014, in the Review
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.136
[292] During the Part 10A process, a Full Bench of the AIRC decided to provide for TOIL at
overtime rates in the Textile, Clothing and Footwear and Associated Industries award 2010
and the Nurses Award 2010, despite submissions by employer parties that TOIL should be
provided on a “time for time” basis. The Textile, Clothing and Footwear and Associated
Industries Award 2010 was made to replace around 33 pre-reform instruments, many with
varying overtime terms. Thirty two industry-wide federal and State awards during the
Part 10A process that led to the making of the Nurses Award 2010. Of the 26 awards that
contained TOIL provisions, 17 provided for TOIL at penalty rates. As stated in the Award
modernisation decision of 2 September 2009:
“The creation of modern awards which will constitute the award elements of the safety
net necessarily involves striking a balance as to appropriate safety net terms and
conditions in light of diverse award arrangements that currently apply.”137
[293] We are not persuaded that it is appropriate to vary any of the 10 modern awards sought
to be varied by Ai Group. Each of the awards contains a TOIL provision and Ai Group has
not advanced any cogent submission in support of the variations sought. Further, Ai Group’s
application is inconsistent with the approach adopted in the Family Leave Test Case in which
existing TOIL provisions, which provided time off to be calculated at overtime rates, were
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preserved and not varied to insert the model TOIL facilitative provision. We are not
persuaded that the variations proposed are necessary to achieve the modern awards objective.
6. Conclusion and Next Steps
[294] For the reasons given we have decided to reject the following aspects of the claims
before us on the basis that the variations sought are not necessary to achieve the modern
awards objective:
(i) the AMWU’s claim to vary the existing TOIL provisions in five modern awards
(see paragraphs [145]–[182] above);
(ii) Ai Group’s claim to vary 51 modern awards to insert a make-up time provision
(see paragraphs [183]–[281] above); and
(iii) Ai Group’s claim to vary the existing TOIL provision in 10 modern awards (see
paragraphs [282]–[293]).
[295] The remaining aspect of Ai Group’s claim – to insert a model TOIL clause into
36 modern awards – has been subsumed by our consideration of a model TOIL provision.
[296] As we have mentioned, our provisional view is that the variation of the modern awards
listed in Attachment F to incorporate the model term is necessary to ensure that each of these
modern awards provides a fair and relevant minimum safety net, taking into account the s.134
considerations (insofar as they are relevant) and would also be consistent with the object of
the Act. We express a provisional view only at this stage because we are conscious that the
scope and content of the variations we propose were not fully canvassed during the
proceedings.
[297] Three further modern awards make provision for overtime but have not been included
in the list of awards in Attachment F. The three awards in question are the Building and
Construction General On-Site Award 2010, the Joinery and Building Trades Award 2010 and
the Seagoing Industry Award 2010. As outlined in the submission of the CFMEU (C&G), the
two construction awards have a particular arbitral history.138
[298] Some 55 Federal and State awards were considered during the Part 10A process that
led to the making of the Building and Construction General On-Site Award 2010 and of those
55 awards 37 did not contain a TOIL provision. Some 26 Federal and State awards were
considered in the process that led to the making of the Joinery and Building Trades Award
2010, and of those only 2 contained a TOIL provision. The CFMEU (C & G) submits that the
main pre-reform awards on which the two modern awards were based were the National
Building and Construction Industry Award and the National Joinery and Building Trades
Products Award (we refer to these as the two pre-reform awards). Neither of the two pre-
reform awards contained a TOIL provision and the arbitral history relating to attempts to
insert TOIL provisions in those awards is dealt with in the CFMEU (C & G) submissions of
23 April 2015.139 We briefly summarise this history below.
[299] In November 1997 the CFMEU filed applications to vary the two pre-reform awards
to introduce family leave provisions based on the Family Leave Test Case decisions. The
CFMEU and MBA submitted consent orders that only dealt with the personal leave
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provisions. The issues of TOIL and make up time were to be left to the subsequent award
simplification proceedings. Ai Group’s supported this consent position. Commissioner
Lawson issued orders reflecting the consent position of the parties.140
[300] The inclusion of a TOIL provision in the two pre-reform awards was subsequently
raised in the award simplification proceedings. The TOIL issue was not pressed by either the
MBA or Ai Group. The Civil Contractors Federation took a different view and sought the
inclusion of a facilitative clause which included TOIL.
[301] On 23rd July 1999 Commissioner Merriman handed down his decision141 on award
simplification for the National Building and Construction Industry Award 1990 and addressed
the issue of facilitative provisions as follows:
“[43] In conducting the review and in deciding whether a provision is appropriate, the
Commission has taken into consideration not only the submissions of the parties, but given the
wording of item 51(7)(a):
‘where appropriate it contains facilitative provisions that allow agreement at the
workplace or enterprise level, between employers and employees (including individual
employees) and how the award provisions are to apply’
the Commission must heavily rely upon its experience of the award and its operation.
The Commission has had significant experience in the operation of this award in the industry,
having been assigned to the panel in 1980 and having sat on a range of matters including Full
Benches which have dealt with major disputes in the industry over the last 19 years. In
arriving at the decision as to the appropriateness of facilitative provisions in this award, the
Commission has had regard to the type of employment, daily hire and weekly, the flexibility
of the workforce as it is required to move from work site to work site, the short term nature of
many employment contracts and the inter relationship of many different employers working
on the same site.”
[302] The award that was made from this decision, the National Building and Construction
Industry Award 2000,142 did not include TOIL and make-up time provisions.
[303] In the decision143 that made the National Joinery and Building Trades Products Award
2002 it was noted that the award simplification review of the National Joinery and Building
Trades Products Award 1993 was originally deferred to allow the review of the National
Building and Construction Industry Award 1990 and that:
“[2] Lengthy discussions between the parties to this award ensued and an agreed position has
now been reached as to the contents of a simplified version.”
[304] The award that was made144 did not contain TOIL or make-up time provisions.
[305] In 2003 the MBA made an application to vary the National Building and Construction
Industry Award 2000, which included the insertion of a TOIL provision. The MBA
application was referred to a Full Bench which was dealing with 13 other applications. In a
decision issued on 23 June 2004 the Full Bench stated:
“[26] It seems to have been accepted by the MBA that the CFMEU is in substance correct in
its submission that the remaining claims (other than the part-time claim and the casual claim)
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do not raise novel issues and might be dealt with within the principles already established by
test case decisions. Nevertheless we see no cogent reason why those claims should be
dismissed at the outset.
[27] This brings us to the MBA's submission that its application should be joined or heard
concurrently with the other applications. We have decided that in all of the circumstances it is
more appropriate not to follow either of those courses. The better course is to adjourn the
MBA application generally pending the determination of the main applications. There are
several reasons for our decision.
[28] While the part-time claim and the casual claim may be relevant to the area of work and
family balance, they also involve issues which do not arise in the main applications. In relation
to the part-time claim, the MBA application is concerned with the introduction of part-time
work in the context of daily hire employment. In relation to the casual claim, the six-week
limitation on casual employment has a particular history which will undoubtedly be relevant to
the application. Partly for these reasons, and partly because of the history of the existing award
provisions, we have no doubt that joinder or concurrent hearings would add substantially to
the time required to hear and determine the main applications. Those applications are already
scheduled for 19 days of hearing on evidence alone. Furthermore the program for filing of
submissions is well advanced.
[29] It is fair also to observe, as the CFMEU pointed out, that test case decisions have not
always been implemented in the building and construction industry. Although we should not
be taken as deciding the point, this lends some support to the view that there are particular
aspects of the industry which require special consideration.
[30] Furthermore, if the MBA application is heard after the main applications have been
determined, the decision can be addressed effectively in the building and construction industry
context at that time. In saying this we do not intend to limit the MBA's rights of intervention in
the main applications. Its evidence and submissions in those applications may deal with the
potential effects on the building and construction industry of the various claims advanced by
the parties and, subject to the bounds of relevance, any other matter.
[31] This leaves for consideration the remaining claims in the MBA application. On what we
have heard we agree with the CFMEU that all of those claims are capable of being addressed
by a single member of the Commission. It is a matter for the MBA whether it wishes the
whole of the application to be dealt with by the Full Bench. On application by the MBA we
are prepared to refer the claims other than the part-time claim and the casual claim, pursuant to
s.107(9)(a), to a member to hear and determine.”145
[306] The MBA’s TOIL claim was referred for further conciliation. It appears that no
further action was taken in respect of this aspect of the MBA’s application because of the
impact of legislative changes at that time.146
[307] Given the unusual arbitral history and the particular features of the industry covered
by the two construction awards (including the operation of daily hire) we think the most
expeditious course is to deal with any application to insert a TOIL provision in these awards
during the award stage rather than in the settlement of any orders which may arise` from our
further consideration of the provisional model term.
[308] We take the same view in relation to the Seagoing Industry Award 2010, though for
different reasons. Work under this award is predominantly performed at sea and includes an
aggregate annual salary provision. The variation of the award to include a TOIL provision is
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opposed by the MUA on the basis that such a provision would have little utility given the
manner in which work is carried out and the terms of the award. It is appropriate that any
application to vary this award to insert a TOIL provision be dealt with during the award phase
of the Review.
[309] As outlined in paragraph [279], the model term set out in paragraph [267] only reflects
our provisional view. Interested parties will be provided with an opportunity to make further
submissions directed at both the model term and the proposition that all modern awards be
varied to insert the model term. Directions will be issued in relation to the filing of further
submissions and a final oral hearing. Submissions filed in accordance with those directions
should also address the modern awards objective. We will only reach a concluded view in
respect of these issues after considering all of the further submissions.
PRESIDENT
Printed by authority of the Commonwealth Government Printer
Price code J, PR569001
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Appearances:
S Maxwell for the Construction, Forestry, Mining and Energy Union (Construction and
General Division) and Construction, Forestry, Mining and Energy Union (Mining and Energy
Division).
L Svendsen for the Health Services Union of Australia.
B Ferguson for The Australian Industry Group.
M Adler for the Housing Industry Association.
G Kusuma for the NSW Farmers’ (Industrial) Association and the National Farmers’
Federation.
S Crawford for The Australian Workers’ Union.
A McCarthy for the Australian Nursing and Midwifery Federation.
G Starr for the Australian Council of Trade Unions.
O Tran for the Textile, Clothing and Footwear Union of Australia.
M Nguyen for the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries
Union” known as the Australian Manufacturing Workers’ Union (AMWU).
A Moussa for the Australian Manufacturing Workers’ Union – Vehicle Division.
R Calver for Master Builders Australia.
M Blewett for Printing Industries Association of Australia
Hearing details:
2015.
Sydney: (with video links to Melbourne, Canberra and Perth)
May 5.
Before Commissioner Roberts:
2015.
Sydney: (with video link to Perth)
May 19.
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ATTACHMENT A—Awards proposed to be varied to insert the TOIL
clause (26 awards)A
Air Pilots Award 2010
Aircraft Cabin Crew Award 2010
Alpine Resorts Award 2010
Aquaculture Industry Award 2010
Black Coal Mining Industry Award 2010
Building and Construction General On–site Award 2010
Business Equipment Award 2010
Coal Export Terminals Award 2010
Concrete Products Award 2010
Cotton Ginning Award 2010
Dredging Industry Award 2010
Electrical, Electronic and Communications Contracting Award 2010B
Electrical Power Industry Award 2010
Horse and Greyhound Training Award 2010
Joinery and Building Trades Award 2010
Miscellaneous Award 2010
Nursery Award 2010
Pest Control Industry Award 2010
Pharmaceutical Industry Award 2010
Plumbing and Fire Sprinklers Award 2010
Poultry Processing Award 2010
Road Transport (Long Distance Operations) Award 2010
Seagoing Industry Award 2010
Security Services Industry Award 2010
Silviculture Award 2010
Stevedoring Industry Award 2010
A Ai Group Submission – 13 November 2014 at Schedule 1.
B Inserted by Ai Group Supplementary Submission – 5 December 2014 at Schedule 1.
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/common/AM2014300-sub-AiG-051214.pdf
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/common/AM2014300and301-sub-aigroup-131114.pdf
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ATTACHMENT B—Awards proposed to be varied by deleting existing
TOIL provision and replacing with test case TOIL clause (10 awards)A
Airport Employees Award 2010
Ambulance and Patient Transport Industry Award 2010
Dry Cleaning and Laundry Industry Award 2010
Fast Food Industry Award 2010
Meat Industry Award 2010
Nurses Award 2010
Road Transport and Distribution Award 2010
Textile, Clothing, Footwear and Associated Industries Award 2010
Timber Industry Award 2010
Vehicle Manufacturing, Repair, Services and Retail Award 2010
A Ai Group Supplementary Submission – 5 December 2014 at Schedule 2.
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/common/AM2014300-sub-AiG-051214.pdf
[2015] FWCFB 4466
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ATTACHMENT C—Awards proposed to be varied to insert make-up time
clause (51 awards)A
Air Pilots Award 2010
Aircraft Cabin Crew Award 2010
Airline Operations–Ground Staff Award 2010
Ambulance and Patient Transport Industry Award 2010
Asphalt Industry Award 2010
Black Coal Mining Industry Award 2010
Building and Construction General On–site Award 2010
Business Equipment Award 2010
Cement and Lime Award 2010
Cleaning Services Award 2010
Coal Export Terminals Award 2010
Commercial Sales Award 2010
Concrete Products Award 2010
Cotton Ginning Award 2010
Dredging Industry Award 2010
Dry Cleaning and Laundry Industry Award 2010
Electrical Power Industry Award 2010
Electrical, Electronic and Communications Contracting Award 2010
Fast Food Industry Award 2010
Gas Industry Award 2010
General Retail Industry Award 2010
Health Professionals and Support Services Award 2010
Horse and Greyhound Training Award 2010 B
Horticulture Award 2010 B
Joinery and Building Trades Award 2010 B
Market and Social Research Award 2010 B
Medical Practitioners Award 2010 B
Mining Industry Award 2010 B
Miscellaneous Award 2010 B
Nurses Award 2010 B
Nursery Award 2010 B
Oil Refining and Manufacturing Award 2010 B
Passenger Vehicle Transportation Award 2010 B
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Pest Control Industry Award 2010 B
Pharmaceutical Industry Award 2010 B
Plumbing and Fire Sprinklers Award 2010 B
Ports, Harbours and Enclosed Water Vessels Award 2010 B
Poultry Processing Award 2010 B
Premixed Concrete Award 2010 B
Quarrying Award 2010 B
Road Transport (Long Distance Operations) Award 2010 B
Road Transport and Distribution Award 2010 B
Salt Industry Award 2010 B
Seagoing Industry Award 2010 B
Security Services Industry Award 2010 B
Silviculture Award 2010
Stevedoring Industry Award 2010
Sugar Industry Award 2010
Textile, Clothing, Footwear and Associated Industries Award 2010
Water Industry Award 2010
Wool Storage, Sampling and Testing Award 2010
A Ai Group Submission – 13 November 2014 at Schedule 2.
B Inserted by Ai Group Supplementary Submission – 5 December 2014 at Schedule 3.
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/common/AM2014300-sub-AiG-051214.pdf
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/common/AM2014300and301-sub-aigroup-131114.pdf
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ATTACHMENT D—Index of material
SUBMISSIONS AND CORRESPONDENCE
Australian Council of Trade
Unions
Submission 22 May 2015
Correspondence 4 May 2015
Submission in reply 23 April 2015
Correspondence 13 February 2015
Submission 4 December 2014
Correspondence 2 December 2014
Australian Hotels Association Submission 13 November 2014
Australian Industry Group
Supplementary note to joint
submission
25 May 2015
Submission 18 May 2015
List of authorities and materials 1 May 2015
Submission in reply 23 April 2015
Submission 18 March 2015
Submission 5 December 2014
Submission 13 November 2014
Australian Industry Group and
AMWU
Joint submission 19 May 2015
AMWU
Submission 1 June 2015
Submission 22 March 2015
Submission 10 December 2014
Correspondence 4 December 2014
Submission 13 November 2014
AMWU – Vehicle Division
Submission in reply 1 June 2015
Submissions in reply 28 April 2015
Australian Nursing and Midwifery
Federation
Submission in reply 23 April 2015
The Australian Workers’ Union
Submission in reply 23 April 2015
Correspondence 8 December 2014
BusinessSA
Submission 2 December 2014
Submission 13 November 2014
CFMEU – Construction and
General Division
Submission in reply 22 May 2015
Submission in reply 15 May 2015
Correspondence 1 May 2015
Submission in reply 23 April 2015
CFMEU – Forestry and Furnishing
Products Division
Correspondence 8 December 2014
CFMEU – Mining and Energy
Division
Correspondence 1 May 2015
Submission in reply 22 April 2015
Correspondence 21 January 2015
Correspondence 4 December 2014
Fair Work Commission Summary of submissions 29 April 2015
Health Services Union of Australia Submission in reply 23 April 2015
Housing Industry Association Correspondence 4 May 2015
Maritime Union of Australia Submission 17 April 2015
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/common/AM2014300-sub-MUA-150415.pdf
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/common/AM2014300-corr-HIA-040515.pdf
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/common/AM2014300-sub-HSU-230415.pdf
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/common/Award%20Flexibility-Summary-of-Submissions-29Apr15.pdf
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/common/AM2014301-corr-CFMEU-041214.pdf
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/common/AM2014300-corr-CFMEU-210115.pdf
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/common/AM2014300-sub-CFMEU-230415.pdf
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/common/AM2014300-corr-CFMEUME-010515.pdf
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/common/AM2014300-corr-CFMEU-091214.pdf
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/common/AM2014300-sub-CFMEUCG-230415.pdf
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/common/AM2014300-corr-CFMEUCG-010515.pdf
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/common/AM2014300-sub-CFMEU-150515.pdf
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/common/AM2014300-sub-CFMEU-220515.pdf
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/common/AM2014300and301-sub-bussa-131114.pdf
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/common/AM2014301-sub-BusSA-011214.pdf
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/common/AM2014300-corr-AWU-081214.pdf
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/common/AM2014300-sub-AWU-230415.pdf
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/common/AM2014300-sub-ANMF-230415.pdf
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/common/AM2014300-sub-AMWU-280415.pdf
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/common/AM2014300-sub-amwu-010615.pdf
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/common/AM2014300and301-sub-AMWU-11114.pdf
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/common/AM2014301-corr-AMWU-041214.pdf
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/common/AM2014300-corr-AMWU-101214.pdf
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/AM2014300-sub-AMWU-220315.pdf
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/common/AM2014300-furthersub-amwu-010615.pdf
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/common/AM2014300-sub-AIG-190515.pdf
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/common/AM2014300and301-sub-aigroup-131114.pdf
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/common/AM2014300-sub-AiG-051214.pdf
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/common/AM2014300-sub-AiG-180315.pdf
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/common/AM2014300-sub-AiG-240415.pdf
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/common/AM2014300-sub-AiG-010515.pdf
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/common/AM2014300-sub-AiG-180515.pdf
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/common/AM2014300-sub-AiG-250515.pdf
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/common/AM2014300-sub-AiG-250515.pdf
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/common/AM2014300and301-AHASA-131114.pdf
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/common/AM2014301-corr-ACTU-021214.pdf
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/common/AM2014301-sub-ACTU-041214.pdf
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/AM2014300-corr-ACTU-130215.pdf
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/common/AM2014300-sub-ACTU-230415.pdf
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/common/AM2014300-corr-ACTU-040515.pdf
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/common/AM2014300-sub-ACTU-220515.pdf
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SUBMISSIONS AND CORRESPONDENCE
Submission 5 December 2014
Master Builders Association
Submission 15 May 2015
Correspondence 18 March 2015
National Farmers’ Federation
Submission in reply 22 April 2015
Submission 13 November 2014
Printing Industries Association of
Australia
Supplementary evidence 18 May 2015
Witness statement 12 May 2015
Submission in reply 22 April 2015
SA Unions Correspondence 13 February 2015
Textile, Clothing and Footwear
Union of Australia
Submission in reply 1 June 2015
Submission in reply 23 April 2015
Submission in reply 4 December 2014
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/AM2014301-sub-TCFUA-041214.pdf
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/common/AM2014300-sub-TCFUAG-240415.pdf
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/common/AM2014300-sub-TCFUA-010615.pdf
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/common/AM2014300and301-corr-SAU-130215.pdf
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/common/AM2014300-sub-PIAA-220415.pdf
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/common/AM2014300-witness-PIA-120515.pdf
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/common/AM2014300-sub-PIA-180515.pdf
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/common/AM2014300and301-sub-NFF-131114.pdf
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/common/AM2014300-sub-NFF-220415.pdf
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/common/AM2014300-corr-MBA--180315.pdf
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/common/AM2014300-sub-MBA-150515.pdf
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/AM2014300-sub-MUA-051214.pdf
[2015] FWCFB 4466
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ATTACHMENT E—Model Flexibility Term
‘7. Award flexibility
7.1 Notwithstanding any other provision of this award, an employer and an individual
employee may agree to vary the application of certain terms of this award to meet the
genuine individual needs of the employer and the individual employee. The terms the
employer and the individual employee may agree to vary the application of are those
concerning:
(a) arrangements for when work is performed;
(b) overtime rates;
(c) penalty rates;
(d) allowances; and
(e) leave loading.
7.2 The employer and the individual employee must have genuinely made the agreement
without coercion or duress. An agreement under this clause can only be entered into
after the individual employee has commenced employment with the employer.
7.3 The agreement between the employer and the individual employee must:
(a) be confined to a variation in the application of one or more of the terms listed
in clause 7.1; and
(b) result in the employee being better off overall at the time the agreement is
made than the employee would have been if no individual flexibility
agreement had been agreed to.
7.4 The agreement between the employer and the individual employee must also:
(a) be in writing, name the parties to the agreement and be signed by the
employer and the individual employee and, if the employee is under 18 years
of age, the employee’s parent or guardian;
(b) state each term of this award that the employer and the individual employee
have agreed to vary;
(c) detail how the application of each term has been varied by agreement between
the employer and the individual employee;
(d) detail how the agreement results in the individual employee being better off
overall in relation to the individual employee’s terms and conditions of
employment; and
(e) state the date the agreement commences to operate.
7.5 The employer must give the individual employee a copy of the agreement and keep
the agreement as a time and wages record.
[2015] FWCFB 4466
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7.6 Except as provided in clause 7.4(a) the agreement must not require the approval or
consent of a person other than the employer and the individual employee.
7.7 An employer seeking to enter into an agreement must provide a written proposal to
the employee. Where the employee’s understanding of written English is limited the
employer must take measures, including translation into an appropriate language, to
ensure the employee understands the proposal.
7.8 The agreement may be terminated:
(a) by the employer or the individual employee giving 13 weeks’ notice of
termination, in writing, to the other party and the agreement ceasing to
operate at the end of the notice period; or
(b) at any time, by written agreement between the employer and the individual
employee.
Note: If any of the requirements of s.144(4), which are reflected in the requirements of this
clause, are not met then the agreement may be terminated by either the employee or
the employer, giving written notice of not more than 28 days (see s.145 of the Fair
Work Act 2009 (Cth)).
7.9 The notice provisions in clause 7.8(a) only apply to an agreement entered into from
the first full pay period commencing on or after 4 December 2013. An agreement
entered into before that date may be terminated in accordance with clause 7.8(a),
subject to four weeks’ notice of termination.
7.10 The right to make an agreement pursuant to this clause is in addition to, and is not
intended to otherwise affect, any provision for an agreement between an employer and an
individual employee contained in any other term of this award.’147
[2015] FWCFB 4466
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ATTACHMENT F—Modern awards with overtime provisions
In accordance with paragraph [281], it is proposed that the model TOIL provision be inserted
in the following 113 modern awards:
Award code Award title
Overtime
provision
TOIL
MA000115 Aboriginal Community Controlled Health
Services Award 2010
24 24.6 ordinary rate
MA000018 Aged Care Award 2010 25 25.1(c) ordinary rate
MA000047 Aircraft Cabin Crew Award 2010 B.6, D.6 (-) (-)
MA000048 Airline Operations—Ground Staff Award
2010
32 32.1(d) ordinary rate
MA000049 Airport Employees Award 2010 30 30.8 overtime rate
MA000092 Alpine Resorts Award 2010 25 (-) (-)
MA000060 Aluminium Industry Award 2010 21 21.8 ordinary rate
MA000098 Ambulance and Patient Transport
Industry Award 2010
24 24.3 overtime rate
MA000080 Amusement, Events and Recreation
Award 2010
23 23.4(d) ordinary rate
MA000118 Animal Care and Veterinary Services
Award 2010
24 24.4 ordinary rate
MA000114 Aquaculture Industry Award 2010 22 (-) (-)
MA000079 Architects Award 2010 19 19.2(a) silent
MA000054 Asphalt Industry Award 2010 24 24.8 ordinary rate
MA000019 Banking, Finance and Insurance Award
2010
23 23.4 -
23.5
ordinary rate
MA000001 Black Coal Mining Industry Award 2010 17 (-) (-)
MA000078 Book Industry Award 2010 19 19 ordinary rate
(not for
some senior
staff)
MA000091 Broadcasting and Recorded
Entertainment Award 2010
29, 39, 40, 52,
58, 64, 71, 76
various various
MA000021 Business Equipment Award 2010 30 (-) (-)
MA000095 Car Parking Award 2010 23 (-) (-)
MA000055 Cement and Lime Award 2010 23 23.9 ordinary rate
MA000070 Cemetery Industry Award 2010 23 23.2 ordinary rate
MA000120 Children’s Services Award 2010 23 23.2(c) ordinary rate
MA000022 Cleaning Services Award 2010 28 28.9 ordinary rate
MA000002 Clerks—Private Sector Award 2010 27 27.5 ordinary rate
MA000045 Coal Export Terminals Award 2010 18 (-) (-)
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000045/ma000045-23.htm#TopOfPage
http://www.fwc.gov.au/documents/modern_awards/award/MA000045/default.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000002/ma000002-32.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000002/ma000002-32.htm#TopOfPage
http://www.fwc.gov.au/documents/modern_awards/award/MA000002/default.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000022/ma000022-33.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000022/ma000022-33.htm#TopOfPage
http://www.fwc.gov.au/documents/modern_awards/award/MA000022/default.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000120/ma000120-28.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000120/ma000120-28.htm#TopOfPage
http://www.fwc.gov.au/documents/modern_awards/award/MA000120/default.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000070/ma000070-28.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000070/ma000070-28.htm#TopOfPage
http://www.fwc.gov.au/documents/modern_awards/award/MA000070/default.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000055/ma000055-28.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000055/ma000055-28.htm#TopOfPage
http://www.fwc.gov.au/documents/modern_awards/award/MA000055/default.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000095/ma000095-28.htm#TopOfPage
http://www.fwc.gov.au/documents/modern_awards/award/MA000095/default.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000021/ma000021-35.htm#TopOfPage
http://www.fwc.gov.au/documents/modern_awards/award/MA000021/default.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000091/ma000091-88.htm#TopOfPage
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000091/ma000091-82.htm#TopOfPage
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000091/ma000091-74.htm#TopOfPage
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000091/ma000091-67.htm#TopOfPage
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000091/ma000091-60.htm#TopOfPage
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000091/ma000091-47.htm#TopOfPage
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000091/ma000091-46.htm#TopOfPage
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000091/ma000091-35.htm#TopOfPage
http://www.fwc.gov.au/documents/modern_awards/award/MA000091/default.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000078/ma000078-24.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000078/ma000078-24.htm#TopOfPage
http://www.fwc.gov.au/documents/modern_awards/award/MA000078/default.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000001/ma000001-21.htm#TopOfPage
http://www.fwc.gov.au/documents/modern_awards/award/MA000001/default.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000019/ma000019-28.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000019/ma000019-28.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000019/ma000019-28.htm#TopOfPage
http://www.fwc.gov.au/documents/modern_awards/award/MA000019/default.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000054/ma000054-29.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000054/ma000054-29.htm#TopOfPage
http://www.fwc.gov.au/documents/modern_awards/award/MA000054/default.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000079/ma000079-24.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000079/ma000079-24.htm
http://www.fwc.gov.au/documents/modern_awards/award/MA000079/default.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000114/ma000114-27.htm
http://www.fwc.gov.au/documents/modern_awards/award/MA000114/default.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000118/ma000118-29.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000118/ma000118-29.htm
http://www.fwc.gov.au/documents/modern_awards/award/MA000118/default.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000080/ma000080-28.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000080/ma000080-28.htm
http://www.fwc.gov.au/documents/modern_awards/award/MA000080/default.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000098/ma000098-29.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000098/ma000098-29.htm
http://www.fwc.gov.au/documents/modern_awards/award/MA000098/default.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000060/ma000060-26.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000060/ma000060-26.htm
http://www.fwc.gov.au/documents/modern_awards/award/MA000060/default.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000092/ma000092-30.htm
http://www.fwc.gov.au/documents/modern_awards/award/MA000092/default.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000049/ma000049-35.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000049/ma000049-35.htm
http://www.fwc.gov.au/documents/modern_awards/award/MA000049/default.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000048/ma000048-37.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000048/ma000048-37.htm
http://www.fwc.gov.au/documents/modern_awards/award/MA000048/default.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000047/ma000047-38.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000047/ma000047-36.htm
http://www.fwc.gov.au/documents/modern_awards/award/MA000047/default.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000018/ma000018-30.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000018/ma000018-30.htm
http://www.fwc.gov.au/documents/modern_awards/award/MA000018/default.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000115/ma000115-29.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000115/ma000115-29.htm
http://www.fwc.gov.au/documents/modern_awards/award/MA000115/default.htm
[2015] FWCFB 4466
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Award code Award title
Overtime
provision
TOIL
MA000083 Commercial Sales Award 2010 23 23.4 ordinary rate
MA000056 Concrete Products Award 2010 24 (-) (-)
MA000023 Contract Call Centres Award 2010 26 26.5 ordinary rate
MA000110 Corrections and Detention (Private
Sector) Award 2010
22 22.3 silent
MA000024 Cotton Ginning Award 2010 24 (-) (-)
MA000085 Dredging Industry Award 2010 22 (-) (-)
MA000096 Dry Cleaning and Laundry Industry
Award 2010
22 22.2 overtime rate
MA000075 Educational Services (Post-Secondary
Education) Award 2010
24 24.3(a),
24.4(a)
ordinary rate
MA000076 Educational Services (Schools) General
Staff Award 2010
27 27.2 (a) ordinary rate
MA000077 Educational Services (Teachers) Award
2010
B.4 Sched
B.4.2
ordinary rate
MA000088 Electrical Power Industry Award 2010 26 26.3 ordinary rate
MA000025 Electrical, Electronic and
Communications Contracting Award 2010
26 (-) (-)
MA000003 Fast Food Industry Award 2010 26 26.3 overtime rate
MA000111 Fire Fighting Industry Award 2010 26 26.2(c) ordinary rate
(Private
sector only)
MA000094 Fitness Industry Award 2010 26 26.4 ordinary rate
MA000073 Food, Beverage and Tobacco
Manufacturing Award 2010
33 33.1 (d) ordinary rate
MA000105 Funeral Industry Award 2010 24 24.5 ordinary rate
MA000101 Gardening and Landscaping Services
Award 2010
22 (-) (-)
MA000061 Gas Industry Award 2010 23 23.2 ordinary rate
MA000004 General Retail Industry Award 2010 29 29.3 overtime rate
MA000026 Graphic Arts, Printing and Publishing
Award 2010
33 33.9 ordinary rate
MA000005 Hair and Beauty Industry Award 2010 31 31.3 overtime rate
MA000027 Health Professionals and Support
Services Award 2010
28 28.3 ordinary rate
MA000007 Higher Education Industry—General
Staff—Award 2010
23 26.1 overtime rate
(except for
HEW9
above at
ordinary
rate)
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000007/ma000007-31.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000007/ma000007-28.htm#TopOfPage
http://www.fwc.gov.au/documents/modern_awards/award/MA000007/default.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000027/ma000027-33.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000027/ma000027-33.htm#TopOfPage
http://www.fwc.gov.au/documents/modern_awards/award/MA000027/default.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000005/ma000005-36.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000005/ma000005-36.htm#TopOfPage
http://www.fwc.gov.au/documents/modern_awards/award/MA000005/default.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000026/ma000026-38.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000026/ma000026-38.htm#TopOfPage
http://www.fwc.gov.au/documents/modern_awards/award/MA000026/default.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000004/ma000004-34.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000004/ma000004-34.htm#TopOfPage
http://www.fwc.gov.au/documents/modern_awards/award/MA000004/default.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000061/ma000061-28.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000061/ma000061-28.htm#TopOfPage
http://www.fwc.gov.au/documents/modern_awards/award/MA000061/default.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000101/ma000101-27.htm#TopOfPage
http://www.fwc.gov.au/documents/modern_awards/award/MA000101/default.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000105/ma000105-29.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000105/ma000105-29.htm#TopOfPage
http://www.fwc.gov.au/documents/modern_awards/award/MA000105/default.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000073/ma000073-38.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000073/ma000073-38.htm#TopOfPage
http://www.fwc.gov.au/documents/modern_awards/award/MA000073/default.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000094/ma000094-31.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000094/ma000094-31.htm#TopOfPage
http://www.fwc.gov.au/documents/modern_awards/award/MA000094/default.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000111/ma000111-31.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000111/ma000111-31.htm#TopOfPage
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[2015] FWCFB 4466
80
Award code Award title
Overtime
provision
TOIL
MA000008 Horse and Greyhound Training Award
2010
22 22.3 overtime rate
MA000028 Horticulture Award 2010 24 24.1 ordinary rate
MA000009 Hospitality Industry (General) Award
2010
33 (-) (-)
MA000062 Hydrocarbons Industry (Upstream)
Award 2010
26 26.4 ordinary rate
MA000067 Journalists Published Media Award 2010 22 22.3 ordinary rate
MA000099 Labour Market Assistance Industry Award
2010
23 23.3 overtime rate
MA000116 Legal Services Award 2010 34 34.5 ordinary rate
MA000081 Live Performance Award 2010 28, 34, 41, 47 (-) (-)
MA000112 Local Government Industry Award 2010 24 24.3 ordinary rate
MA000117 Mannequins and Models Award 2010 23 23.3(b) overtime rate
MA000010 Manufacturing and Associated Industries
and Occupations Award 2010
40 40.1(d) ordinary rate
MA000093 Marine Tourism and Charter Vessels
Award 2010
22 (-) (-)
MA000050 Marine Towage Award 2010 22 (-) (-)
MA000030 Market and Social Research Award 2010 22 22.2 ordinary rate
MA000059 Meat Industry Award 2010 36 36.2 overtime rate
MA000031 Medical Practitioners Award 2010 24 24.1(d) ordinary rate
MA000011 Mining Industry Award 2010 20 20.4 ordinary rate
MA000104 Miscellaneous Award 2010 22 (-) (-)
MA000032 Mobile Crane Hiring Award 2010 24 24.11 ordinary rate
MA000033 Nursery Award 2010 26 (-) (-)
MA000034 Nurses Award 2010 28 28.2 overtime rate
MA000072 Oil Refining and Manufacturing Award
2010
24 24.4 ordinary rate
MA000063 Passenger Vehicle Transportation Award
2010
23 23.3 ordinary rate
MA000035 Pastoral Award 2010 31 31.3 &
42.2
ordinary rate
MA000097 Pest Control Industry Award 2010 22 (-) (-)
MA000069 Pharmaceutical Industry Award 2010 25 (-) (-)
MA000012 Pharmacy Industry Award 2010 26 26.3 overtime rate
MA000036 Plumbing and Fire Sprinklers Award
2010
33 (-) (-)
MA000051 Port Authorities Award 2010 21 21.3 ordinary rate
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000051/ma000051-26.htm
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[2015] FWCFB 4466
81
Award code Award title
Overtime
provision
TOIL
MA000052 Ports, Harbours and Enclosed Water
Vessels Award 2010
20 20.2 ordinary rate
MA000074 Poultry Processing Award 2010 26 (-) (-)
MA000057 Premixed Concrete Award 2010 23 23.9 ordinary rate
MA000108 Professional Diving Industry (Industrial)
Award 2010
24 (-) (-)
MA000109 Professional Diving Industry
(Recreational) Award 2010
22 (-) (-)
MA000037 Quarrying Award 2010 28 28.9 ordinary rate
MA000013 Racing Clubs Events Award 2010 29 (-) (-)
MA000014 Racing Industry Ground Maintenance
Award 2010
23 (-) (-)
MA000015 Rail Industry Award 2010 23 23.3 ordinary rate
MA000106 Real Estate Industry Award 2010 24 24.2 ordinary rate
MA000058 Registered and Licensed Clubs Award
2010
28 28.5 overtime rate
MA000119 Restaurant Industry Award 2010 33 33.5 overtime rate
MA000038 Road Transport and Distribution Award
2010
27 27.7 overtime rate
MA000107 Salt Industry Award 2010 23 23.4 ordinary rate
MA000068 Seafood Processing Award 2010 26 26.1(d) ordinary rate
MA000016 Security Services Industry Award 2010 23 (-) (-)
MA000040 Silviculture Award 2010 26 (-) (-)
MA000100 Social, Community, Home Care and
Disability Services Industry Award 2010
28 28.2 ordinary rate
MA000082 Sporting Organisations Award 2010 24 24.3(a) time and a
half within
fortnight or
single time
within
12 months
MA000121 State Government Agencies
Administration Award 2010
23 23.4 ordinary rate
MA000053 Stevedoring Industry Award 2010 19 (-) (-)
MA000084 Storage Services and Wholesale Award
2010
24 24.3 ordinary rate
MA000087 Sugar Industry Award 2010 31 31.6 ordinary rate
MA000103 Supported Employment Services Award
2010
21 21.7 ordinary rate
(Monday –
Friday only)
MA000066 Surveying Award 2010 23 23.1(b) ordinary rate
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000066/ma000066-28.htm
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[2015] FWCFB 4466
82
Award code Award title
Overtime
provision
TOIL
MA000041 Telecommunications Services Award 2010 21 21.5 ordinary rate
MA000017 Textile, Clothing, Footwear and
Associated Industries Award 2010
39 39.5 overtime rate
MA000071 Timber Industry Award 2010 30 31.1 overtime rate
MA000042 Transport (Cash In Transit) Award 2010 28 28.2 ordinary rate
MA000102 Travelling Shows Award 2010 23 (-) (-)
MA000089 Vehicle Manufacturing, Repair, Services
and Retail Award 2010
28 28.3 overtime rate
MA000043 Waste Management Award 2010 30 30.5 ordinary rate
MA000113 Water Industry Award 2010 26 26.3 ordinary rate
MA000090 Wine Industry Award 2010 30 29.6 ordinary rate
MA000044 Wool Storage, Sampling and Testing
Award 2010
25 25.5 ordinary rate
1 [2014] FWC 1790
2 AMWU Submission, 22 March 2015
3 [2014] FWCFB 1788
4 4 Yearly Review of Modern Awards: Preliminary Jurisdictional Issues [2014] FWCFB 1788 at paragraph [32]
5 Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24
6 R v Hunt; Ex parte Sean Investments Ltd (1979) 180 CLR 322 at 329 per Mason J; R v Toohey: Ex parte Meneling Station
Pty Ltd (1982) 158 CLR 327 at 333 per Gibbs CJ; Friends of Hichinbrook Society Inc v Minister for Environment (No. 3)
(1997) 77 FCR 153; Australian Competition and Consumer Commission v Leelee Pty Ltd [1999] FCA 1121; Edwards v
Giudice [1999] FCA 1836; National Retail Association v Shop Distributive & Allied Employees Association [2014]
FCAFC 118 at paragraph 56
7 Shop, Distributive and Allied Employees Association (No. 2) (2012) 205 FCR 227 at paragraph 35 per Tracey J
8 [2014] FCAFC 118
9 [2014] FCAFC 118 at paragraph [109]
10 4 Yearly Review of Modern Awards, Preliminary Jurisdictional Issues [2014] FWCFB 1788 at paragraph [60].
11 See Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
12 [2014] FWCFB 1788 at paragraphs [35]–[36]
13 [2008] AIRCFB 550
14 [2008] AIRCFB 1000 at paragraph 38
15 [2009] AIRCFB 345 at paragraph 11
16 [2013] FWCFB 2170 and [2013] FWCFB 8859
17 Transcript, 5 May 2015 at PN 653 and 659
18 [2014] FWCFB 1788 at paragraph [27]
19 Transcript, 5 May 2015 at PN 200
20 Ibid
21 (1994) 57 IR 121
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[2015] FWCFB 4466
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22 (1995) 62 IR 48.
23 (1995) 62 IR 48 at pp. 79–80
24 Print L9048
25 Ibid at pp 9-10
26 (1995) 61 IR 236
27 Ibid at pp 255–257
28 (1995) 62 IR 48 at pp. 62–65
29 (1995) 62 IR 48 at pp. 65–66
30 Ibid at pp. 68-69
31 Ibid at p. 81
32 Personal/Carer’s Leave Test Case - Stage 2 - March 1996 (1996) 66 IR 138 at p.151
33 (1995) 61 IR 236
34 Print N0343
35 (1996) 66 IR 138 at pp. 151-152
36 Ibid at pp. 152-153
37 Ibid at pp. 153-154
38 L0125 V006 S Print N1781, Senior Deputy President Marsh - 20 May 1996
39 (2005) 143 IR 245
40 Ibid at paragraph [422]
41 Re Furnishing Industry Association of Australia (Queensland) Limited Union of Employers, Print Q9115 at paragraph [42],
27 November 1998 per Giudice J, Watson SDP, Hall DP, Bacon C and Edwards C; Cetin v Ripon Pty Ltd (T/as Parkview
Hotel) (2003) 127 IR 205 at paragraph [48]
42 Ai Group Submission, 18 March 2015 at paragraph 48
43 Ai Group supplementary submission 18 May 2015 at paragraphs 53–54
44 Ibid at paragraph 54
45 Ai Group; Printing Industries Association of Australia (PIAA); ACTU; Australian Nursing & Midwifery Federation
(ANMF); Australian Workers Union (AWU); Construction, Forestry, Mining and Energy Union (Construction & General
Division) (CFEMU (C&G)); Construction, Forestry, Mining and Energy Union (Mining & Energy Division) (CFMEU
(M&E)); Health Services Union (HSU); Maritime Union of Australia (MUA); Textile, Clothing & Footwear Union of
Australia (TCFUA); Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union - Vehicle division
(‘AMWU – Vehicle Division’)
46 AMWU Submission, 22 March 2015 at paragraphs 43–55
47 Ibid at paragraph 56
48 Ibid at paragraphs 57–58
49 Ibid at paragraphs 59–61
50 Ibid at paragraphs 62–73
51 Ibid at paragraphs 74–78
52 Ibid at paragraphs 79–86
53 Ibid at paragraphs 87–88
54 Ibid at paragraphs 89–92
55 (2005) 143 IR 245
56 Ai Group Reply Submission, 23 April 2015
57 Ibid at paragraphs 50–84
58 PIAA Reply Submission, 22 April 2015
59Ibid at paragraph 14
60 Ibid at paragraph 16
61 Ai Group Submissions in Reply, 23 April 2015 at paragraph 2
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[2015] FWCFB 4466
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62 MBA Submission, 18 March 2015
63 NFF Reply Submission, 22 April 2015
64 ACTU Reply Submission, 23 April 2015
65 AWU Reply Submission, 23 April 2015
66 CFMEU (Construction and General Division) Reply Submission, 23 April 2015
67 Ibid at paragraph 21
68 CFMEU (Mining and Energy Division) Reply Submission, 23 April 2015
69 Ibid at paragraph 7.5
70 Ibid at paragraph 10
71 Ibid at paragraph 16
72 Ibid at paragraph 17
73 Ibid at paragraph 19
74 Ibid at paragraphs 20–50
75 HSU Reply Submission, 23 April 2015
76 Ibid at paragraph 5
77 TCFUA Reply Submission, 23 April 2015
78 Transcript, 5 May 2015 at PN 653 and 659
79 See Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27 at
paragraph [47]; CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at paragraph [408]; Project Blue
Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at paragraph [69]
80 (1932) 47 CLR 1 at p.7
81 (1949) 78 CLR 529 at p.550
82 (1994) 56 IR 114 at p.136
83 (1994) 57 IR 121
84 AMWU submission, 22 March 2015 at paragraph 1
85 Ibid at paragraph 3
86 Transcript, 19 May 2015 at PN 1035, also see PN 1108
87 Ibid at PN 1028
88 Ibid at PN 1092–1094
89 Also see Transcript, 19 May 2015 at PN 1161, 1221 and 1225
90 See Transcript, 5 May 2015 at paragraphs 104-108
91 AMWU Submission, 22 March 2015 at paragraphs 41–91
92 Ibid at paragraphs 45–46
93 Ibid at paragraph 47
94 Ibid at paragraph 57
95 Ibid at paragraphs 59–60
96 Ibid at paragraphs 68-73
97 ACTU Reply Submission, 23 April 2015 at paragraph 149
98 AMWU submission, 22 March 2015 at paragraphs 76 - 77
99 Further, see Ai Group Submission in Reply, 23 April 2015 at paragraphs 71-74
100 Transcript, 5 May 2015 at PN 242 and 244.
101 See generally: Re Bupa Care Services Pty Ltd [2010] FWAFB 2762; Re MSA Security Officers Certified Agreement 2003,
PR93765 per Watson SDP, Blair DP and Lewin C, 15 September 2003; Black Crow Organics [2010] FWAA 5060;
Modern Award Review 2012 - Award Flexibility [2013] FWCFB 2170 at paragraphs [122] - [137] and [151] - [159]
102 Transcript, 5 May 2015at PN 242–244
103 Ai Group submission, 18 March 2015 at paragraph 6
104 Clauses 26.3 and 22.3 respectively
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[2015] FWCFB 4466
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105 The Road Transport (Long Distance Operations) Award 2010 has an overtime allowance incorporated in the rate per
kilometre payment method
106 Transcript, 5 May 2015 at PN 200
107 Ibid
108 2015 Intergenerational Report Australia in 2055, March 2015 at p.ix
109 See ‘Childcare and Early Childhood Learning, Inquiry Report’, Productivity Commission 2014 at p.186.
110 Ibid at p. 196
111 Ibid at pp.183-186; 2015 Intergenerational Report at pp. 16-21
112 Ibid at pp. 201-202
113 Ibid at p. 223
114 Ibid at p. 234
115 AWRS First Finding Report, Table 6.3
116 Ai Group submission, 18 March 2015 at paragraph 114
117 Ibid at paragraphs 115–116
118 Annual Wage Review 2014-15 [2015] FWCFB 3500 at paragraphs [309]-[310] and [345]-[359]
119 Ai Group submission, 18 March 2015 at paragraph 120
120 See generally the discussion in the Annual Wage Review 2014-15 [2015] FWCFB 3500 at paragraphs [455]–[473]
121 Ai Group submission, 18 March 2015 at paragraphs 130–131
122 Ibid at paragraphs 99 and 137–138
123 See the summary table at paragraph 76 of Ai Group submission, 18 March 2015
124 ACTU Reply Submission, 23 April 2015 at paragraph 52
125 Zeytinoglu I. U., G.B. Cooke and S.L. Man (2009) ‘Flexibility: Whose Choice is it Anyway?’ Industrial Relations, 64(4),
pp 555-574
126 Transcript, 5 May 2015 at PN 289
127 AMWU (Vehicle Division) Reply Submission, 28 April 2015 at paragraphs 17–31
128 See Print J1613; Print J3282; and Print J3283
129 Print K0701; Print K0703; and Print K8918
130 PR928573 at paragraphs 96–103
131 Ibid at paragraphs 104-105
132 Ai Group Supplementary Note, 25 May 2015 at paragraph 6
133 Ibid at paragraph 5
134 See Award Modernisation [2008] AIRCFB 1000 at [145]-[149] and Award Modernisation [2009] AIRCFB 345 at [145]-
[157]
135 Ai Group Supplementary Note, 25 May 2015 at paragraph 9
136 [2014] FWCFB 1788 at paragraph 24
137 [2009] AIRCFB at paragraph 5
138 The CFMEU (C&G) submission does not deal with the arbitral history of the other award said to be of particular interest
to the union: the Mobile Crane Hiring Award 2010.
139 At paragraphs 24-35
140 See Parts Q0524 and Q0523
141 Print R7494
142 http://www.fwa.gov.au/awardsandorders/S0643.doc
143 PR920659
144 PR920660
145 PR948240 at paragraphs [26]-[31]
146 Transcript, 5 May 2015 at PN 418-419 per Mr Calver
147 See [2013] FWCFB 2170 and [2013] FWCFB 8859
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