Four yearly review of modern awards - [2016] FWCFB 7254

1

Fair Work Act 2009 
s.156 - 4 yearly review of modern awards

4 yearly review of modern awards—Group 2
(AM2014/198 and others)

JUSTICE ROSS, PRESIDENT

VICE PRESIDENT HATCHER

SENIOR DEPUTY PRESIDENT HAMBERGER

DEPUTY PRESIDENT BULL

COMMISSIONER ROE MELBOURNE, 10 OCTOBER 2016

4 yearly review of modern awards – award stage – exposure drafts – Group 2 awards.

CONTENTS

Page Paragraph

1. INTRODUCTION 5 [1]

2. Review of Group 2 Awards 5 [3]

2.1 Alpine Resorts Award 2010 6 [9]

2.2 Animal Care and Veterinary Services Award 2010 8 [18]

2.3 Aquaculture Industry Award 2010 10 [38]

2.4 Corrections and Detention (Private Sector) Award 2010 13 [52]

2.5 Fire Fighting Industry Award 2010 18 [78]

2.6 Graphic Arts Award 2010 20 [91]

2.7 Health Professionals and Support Services Award 2010 21 [97]

2.8 Horse and Greyhound Training Award 2010 23 [103]

2.9 Medical Practitioners Award 2010 25 [118]

2.10 Nurses Award 2010 26 [127]

2.11 Passenger Vehicle Transportation Award 2010 29 [141]

[2016] FWCFB 7254

DECISION


E AUSTRALIA FairWork Commission




 



[2016] FWCFB 7254 

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Page Paragraph

2.12 Pharmacy Industry Award 2010 32 [154]

2.13 Racing Industry Ground Maintenance Award 2010 33 [156]

2.14 Road Transport (Long Distance Operations) Award 2010 34 [160]

2.15 Road Transport and Distribution Award 2010 35 [164]

2.16 Seafood Processing Award 2010 37 [176]

2.17 Storage Services and Wholesale Award 2010 40 [192]

2.18 Transport (Cash in Transit) Award 2010 44 [214]

2.19 Waste Management Award 2010 45 [216]

3. Next steps 47 [224]

Attachment A— List of Group 2 awards 50








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ABBREVIATIONS

ABI Australian Business Industrial and New South Wales 
Business Chamber (jointly ABI)

ACE Aged Care Employers (Aged and Community Services 
NSW & ACT and others; jointly ACE)

AFEI Australian Federation of Employers and Industries

Ai Group Australian Industry Group

AMWU “Automotive, Food, Metals, Engineering, Printing and 
Kindred Industries Union” known as the Australian 
Manufacturing Workers’ Union (AMWU)

ANMF Australian Nursing and Midwifery Federation

APESMA The Association of Professional Engineers, Scientists and 
Managers, Australia

APTIA Australian Public Transport Industrial Association

ARTBIU Australian Rail, Tram and Bus Industry Union

ASAA Australian Ski Areas Association

ASMOF Australian Salaried Medical Officers Federation

ASU Australian Municipal, Administrative, Clerical and 
Services Union

ATA Australian Trainers’ Association 

AVA Australian Veterinary Association 

AWU The Australian Workers’ Union

Business SA South Australian Employers’ Chamber of Commerce and 
Industry Inc trading as Business SA

CFA Country Fire Authority 

Commission Fair Work Commission 

CPD Continuing professional development

December 2014 decision Full Bench decision re exposure drafts in Group 1A and 
1B – General drafting – alleged inconsistencies with NES 
– 23 December 2014 [2014] FWCFB 9412

FW Act Fair Work Act 2009 (Cth)

FWO Fair Work Ombudsman

HSU Health Services Union of Australia

July 2015 decision Full Bench decision re exposure drafts in Group 1A and 
1B – drafting and technical issues – ordinary hourly rate 
of pay – 13 July 2015 [2015] FWCFB 4658

MFB Metropolitan Fire and Emergency Services Board 

MIERG Medical Imaging Employment Relations Group






https://www.fwc.gov.au/documents/decisionssigned/html/2015FWCFB4658.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2014FWCFB9412.htm


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NES National Employment Standards

NSWFA New South Wales Farmers’ Industrial Association

NUW National Union of Workers

October 2015 decision Full Bench decision re exposure drafts in Group 1C, 1D 
and 1E – casual loading – 23 October 2015 [2015] FWCFB 
7236

PIAA Printing Industries Association of Australia

Review 4 yearly review of modern awards under s.156 of the Fair 
Work Act 2009

SDA Shop, Distributive and Allied Employees Association

September 2015 decision Full Bench decision re exposure drafts in Group 1A and 
1B – drafting and technical issues – Absorption clause –
casual loading – 30 September 2015 [2015] FWCFB 6656

TWU Transport Workers’ Union of Australia

UFUA United Firefighters’ Union of Australia

UV United Voice






https://www.fwc.gov.au/documents/decisionssigned/html/2015FWCFB6656.htm
https://www.fwc.gov.au/decisionssigned/html/2015FWCFB7236.htm
https://www.fwc.gov.au/decisionssigned/html/2015FWCFB7236.htm


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1. Introduction 

[1] This decision arises from the 4 yearly review of modern awards (the Review) and, in 
particular deals with Group 2 of the Award stage of the Review. It should be read in 
conjunction with earlier decisions and statements concerning the Review, and in particular the 
decisions of 23 December 20141 (the December 2014 decision), 13 July 20152 (the July 2015 
decision) and 30 September 20153 (the September 2015 decision) in which the Commission 
dealt with a number of general drafting and technical issues common to multiple exposure 
drafts.

[2] The December 2014 decision along with an additional decision issued in May 20154

dealt with alleged inconsistencies with the National Employment Standards (NES). Further 
decisions in relation to award flexibility (AM2014/300)5, annual leave (AM2014/47)6 and 
transitional provisions in relation to accident pay (AM2014/190)7 also have application to this 
group of awards. 

2. Review of Group 2 Awards

[3] Having divided the modern awards into four groups for the purpose of the award stage 
of the Review, the initial conference for Group 2 awards was held on 23 October 2014. The 
nineteen Group 2 awards were then further divided into sub-groups in accordance with the list 
at Attachment A and another conference was held on 2 December 2014 to identify the 
variations sought to these awards. At the conferences and in written submissions, parties 
identified a number of awards where it would be beneficial to hold award-specific 
conferences to narrow the range of issues in dispute. 

[4] In correspondence on 24 November 2014, the Fair Work Ombudsman (FWO) raised a 
number of issues identified through interactions with employers and employees covered by 
Group 2 awards.8 While the FWO did not participate in any proceedings during the Award 
stage, these issues were drawn to the attention of the parties through notes in the exposure 
drafts and included in the summaries of submissions received.

[5] The Commission published exposure drafts for the Group 2 awards in December 
20149 along with comparison documents showing the changes made to the structure and 
language in the award. Interested parties were given an opportunity to make written 
submissions on the exposure drafts and to reply to the submissions of others. At the request of 
the parties, further conferences were held to deal with a range of award-specific matters prior 
to hearings before the Full Bench. It should be noted that hearings originally scheduled for 
earlier in 2015 were postponed to October so that decisions could be issued in relation to the 
Group 1 awards prior to the Full Bench dealing with the Group 2 awards. This re-scheduling 
was supported by the parties who had also raised concerns about the workload associated with 
the Review, including the common issues matters being dealt with concurrently.10

[6] A hearing on 7 October 2015 dealt with a number of issues in this group of awards. 
Following that hearing, additional conferences were held before single members in relation to 
Group 2 awards to work through the remaining issues.

[7] The Group 2 exposure drafts were amended and republished in accordance with the 
decisions on general drafting and technical issues common to multiple exposure drafts. As 
well as the changes outlined below, some changes resolved through the conference process 






https://www.fwc.gov.au/awards-and-agreements/minimum-wages-conditions/national-employment-standards


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were also incorporated in the revised exposure drafts. The changes made in the decisions11

listed in paragraph [1] as well as the decision of 23 October 201512 (the October 2015 
decision) regarding the awards in subgroups 1C, 1D and 1E that also apply to this group of 
awards include:

(1) changes to the supersession clause 1.2 (December 2014 decision at [11])

(ii) inclusion of commencement clause (July 2015 decision at [8])

(iii) deletion of absorption clause 1.4 (September 2015 decision at [74])

(iv) reinstatement of the take home pay clause (December 2014 decision at [16])

(v) changes to NES provisions (December 2014 decision at [25] and [29])

(vi) removal of summaries of NES entitlements from clauses including various 
forms of leave, termination of employment, redundancy and proposed 
provision regarding pay slips (December 2014 decision at [35])

(vii) changes to text in facilitative provisions clause (December 2014 decision at 
[42])

(viii) changes to format of rates tables in National Training Wage schedule (where 
included) (December 2014 decision at [67])

(ix) inclusion of notes about annual leave and obligations regarding hourly rates in 
schedules (July 2015 decision at [94] and [63])

(x) standardisation of the use of the terms ‘minimum hourly rate’; ‘ordinary hourly 
rate’ and ‘all purpose allowance’ plus related definitions (July 2015 decision at 
[43], [35] and [91])

[8] The technical and drafting issues in the Group 2 awards, along with a number of 
changes sought by parties (other than substantive changes requiring extensive evidence) are 
dealt with in this decision. We now turn to each award under Review.

2.1 Alpine Resorts Award 2010 

[9] An exposure draft based on the Alpine Resorts Award 2010 (the Alpine Award) was 
published on 8 December 2014 and submissions in response to the exposure draft were 
received from Falls Creek and another13, Australian Industry Group (Ai Group)14, The 
Australian Workers’ Union (AWU)15, the Australian Ski Areas Association (ASAA)16 and the 
Mount Hotham Resort Management Board17. After the hearing on 7 October 2015, interested 
parties were invited to attend a conference the following day to discuss outstanding issues.

[10] After further submissions from the interested parties, a report to the Full Bench was
published on 7 December 2015, and a revised exposure draft was published on 8 December 
2015. The Commission requested parties file final submissions or comment by 22 January 
2016, including any further discussions held between the parties which reached a consensus 






http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/AM2014198-revisedexpdft-081215.pdf
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/AM2014198-report-071215.pdf
https://www.fwc.gov.au/documents/documents/modern_awards/award/ma000092/default.htm
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/exposure-draft-alpine.pdf


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position in relation to any outstanding issues. Following final submissions from the parties, a 
further revised exposure draft was published on 19 April 2016.

[11] Two issues have been foremost in the conduct of the review of this Award to date. The 
first concerns the current provisions (contained in clause 11 of the Award) concerning 
seasonal employment. Relevantly, the Award provides that the hourly rate of pay for seasonal 
employees includes an 8.33% loading on the applicable hourly rate instead of annual leave 
(clause 11.5). In the December 2014 decision the Full Bench determined that this provision 
was inconsistent with s.87(1) of the Fair Work Act 2009 (FW Act) because it purported to 
exclude the provision of paid annual leave in circumstances where seasonal employees were 
not casual employees.18 As a result consideration was required as to how the Award should be 
modified in order to render it consistent with the FW Act and, in particular, whether the 
8.33% loading should remain in the Alpine Award.

[12] The second issue concerns the coverage of the Alpine Award. Clause 4.1 provides that 
the Award covers employers “who operate an alpine resort” in respect of employees in the 
classifications contained in the Alpine Award. The expression “alpine resort” is defined in 
clause 3 to mean “an establishment whose business, among other things, includes alpine 
lifting”. The Mount Hotham Chamber of Commerce19, the Falls Creek Chamber of 
Commerce20, the Mount Hotham Resort Management Board21, the Thredbo Chamber of 
Commerce22, the Perisher Resorts Chamber of Commerce23 and Australian Business 
Industrial and New South Wales Business Chamber (jointly ABI)24 seek that the coverage of 
the Alpine Award be varied so that it applies to all employers operating in an alpine resort, 
not just those operating an alpine lift. The ASAA opposes this variation to coverage.25

[13] In respect of the first issue, the ASAA and the AWU have reached agreement26 on a 
package of changes which include a number of variations which are technical in nature but 
also involve the following substantive variations:

 removal of the 8.33% loading for seasonal employees;

 the inclusion of an annual leave loading for non-casual employees;

 the application of overtime penalty rate provisions to casual employees, except 
snow-sports instructors, on the basis that the penalty rates will be inclusive of the 
casual loading and will be applicable only for work in excess of 10 hours per day 
or 38 hours per week over a maximum work cycle of 4 weeks.

[14] The AWU has particularly emphasised that it has agreed to these changes on the basis 
that they are a package, and that non-approval of any change in the package might affect its 
consent to other parts of it.27 The Ai Group, being the other interested party in the Award as it 
currently stands, is not opposed to the package.28

[15] In respect of the second issue, there is a general consensus that as a significant issue in 
contest it should be referred to a separately constituted Full Bench.

[16] We consider that it would not be appropriate to approve the substantive variations in 
the package of changes agreed between the ASAA and the AWU in advance of a Full Bench 
hearing and determination of the coverage issue. That is because, in the event that the Full 
Bench determined that the coverage of the Award ought be expanded to encompass employers 
who are not currently covered, those employers would be denied an opportunity to be heard in 






https://www.legislation.gov.au/Details/C2016C00785
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/Exposure-draft-alpine-revised-190416.pdf


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relation to the substantive variations. Additionally we consider that it will be necessary for the 
ASAA and the AWU to advance cogent submissions as to why, for the purpose of s.138 of 
the FW Act, it is necessary for the agreed variations - in particular, the proposed new annual 
leave loading - to be made in order to achieve the modern awards objective in s.134.

[17] Accordingly the issues of coverage, and the three substantive variations proposed by 
the ASAA and the AWU referred to above, will be referred to a separately constituted Full 
Bench for hearing and determination. The other agreed variations proposed by the ASAA and 
the AWU, which are largely technical in nature, will be made (subject to some minor 
modifications). A further exposure draft will be issued reflecting these changes.

2.2 Animal Care and Veterinary Services Award 2010

[18] An exposure draft based on the Animal Care and Veterinary Services Award 2010 (the 
Animal Care Award) was initially published on 8 December 2014 and submissions in 
response to the exposure draft were received from the Australian Veterinary Association 
(AVA)29, the AWU30, the Ai Group31 and the Australian Federation of Employers and 
Industry (AFEI)32. Following the hearing on 7 October 2015, a conference was conducted by 
Commissioner Roe on 8 October 2015. The report to the Full Bench concerning this 
conference was published on 9 October 2015 together with a revised summary of 
submissions. In the report submissions were requested in respect to particular items. 

[19] A further report was published on 27 November 2015 and that report requested further 
submissions on two issues. A revised exposure draft was published on 7 December 2015 and 
an updated further revised exposure draft was published on 11 December 2015 together with a 
revised summary of submissions. A final report was published on 5 January 2016.

[20] We propose to adopt all of the agreed changes set out in the Commissioner’s reports 
which are reflected in the further revised exposure draft.

[21] Following consideration by the parties at the various conferences, the exposure draft 
clarifies the payment for veterinary surgeons for work on public holidays in clauses 20.3 and 
20.4. We will assume that further variations are not being pursued unless advised to the 
contrary within seven days of this decision. 

[22] There are three outstanding matters which the parties agreed at the conferences before 
Commissioner Roe should be determined by this Full Bench on the basis of written 
submissions. This was confirmed at the hearing before Vice President Hatcher on 7 July 
201633 and directions were issued for the filing of any final submissions. Further submissions 
were received from the AFEI34 and the AVA35. 

[23] The first issue concerns a note to clause 11.2(a) of the exposure draft. In the 
conferences before Commissioner Roe interested parties generally agreed that a note is 
required in clause 11.2(a)(i)—On call duty to clarify the relationship to clause 8.3(c), which 
provides for a “minimum of three full days off per fortnight” for veterinary surgeons. Parties 
generally support the note reading: “Note: An associate is not in receipt of a day off for the 
purposes of Clause 8.3(c) if they perform scheduled active on call duty on that day”. The Ai
Group36 and the AFEI37 wish to ensure that there is no implication that on-call time is to be 
considered “ordinary hours of work”. The AVA seeks to replace “perform scheduled active 
on call duty on that day” with “if they are required to be on call on that day”.38






https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/20160707_am2014199.pdf
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/AM2014199-report-050116.pdf
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/AM2014199-Exposure-Draft-further-revised-111215.pdf
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/AM2014199-Exposure-Draft-Animal-and-Veterinary-revised-071215.pdf
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/AM2014206andors-report-271115.pdf
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/ReportFB-091015-AM2014199andors.pdf
https://www.fwc.gov.au/documents/documents/modern_awards/award/ma000118/default.htm
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/Exposure-Draft-AnimalandVeterinary.pdf


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[24] The current Award and the exposure draft provide that “on call duty is not counted 
towards ordinary hours of duty or extra hours of duty”. 

[25] The AFEI in its further submission state that they do not consider a note to be 
necessary.39 However, the primary focus of their submission is to oppose the amendment to 
the proposed note sought by the AVA.40

[26] The AVA in its submission argues that the three full days off per fortnight should not 
include any period of on call. The AVA submits that the majority of employer veterinarians 
interpret the current provision in this manner, and that because on call duty is very common in 
the industry, veterinarians will be effectively denied a three day break each fortnight if on call 
duty can be required on these three days off.41

[27] We accept the AVA submission that veterinarians cannot enjoy three full days off if 
they have to be ready and available to work on those days. However, we consider that the 
current Award does not prevent veterinarians from being on call on their days off and a 
veterinarian is still on a day off even if they are on call for the purposes of the Award. If a 
veterinarian is actually required to work on a day off then they are on active on call duty and 
that day is no longer regarded as a day off for the purposes of the right to three full days off in 
a fortnight. 

[28] We do not consider that the AVA has made a sufficient case to vary the Award to 
exclude on call duty on at least three days per fortnight. We will not vary the exposure draft. 

[29] The second issue concerns paid study leave for veterinary surgeons. Clause 13.3 of the 
exposure draft provides for one week’s paid study leave for full-time veterinary surgeons for 
each completed year of service. The AVA42 with support of United Voice (UV) and the AWU 
seeks to insert a clarification that the leave is provided on a pro rata basis to part-time 
veterinary surgeons. Ai Group and the AFEI argue that the current entitlement is restricted to 
full-time employees and this should not be changed.43

[30] In respect of veterinary surgeons employed part-time the current Award relevantly 
provides as follows:

“10.4 Part-time employment
…
(b) Part-time employees are entitled on a pro rata basis to equivalent pay and 
conditions to those of full-time employees.
…

19.3 To facilitate skill acquisition and career progression, a full-time associate is 
entitled to one week’s paid study leave, at the associate’s ordinary rate of pay, for each 
completed year of service.
…”

[31] These provisions are substantially the same in the exposure draft. The AFEI argues 
that the current entitlement is restricted to full-time employees. However we do consider 
clause 19.3 excludes part-time employees from the entitlement on a pro rata basis. 








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[32] The AVA submits that at present 80% of those graduating as veterinarians are women 
and that the change in gender profile has led to an increase in part-time work. They also 
submit that all State and Territory registration boards expect registered veterinarians to 
undertake a minimum level of continuing professional development (CPD). The amount of 
CPD required is the same irrespective of whether the person is working full-time or part-time. 
The AVA submits that the requirement for professional development is legislated in New 
South Wales, Queensland and the Australian Capital Territory. All jurisdictions have agreed 
through the Australasian Veterinary Boards Council that continuing professional development 
is expected of registered veterinarians and have established a minimum annual requirement.44

[33] We are satisfied that it is appropriate for part-time veterinarians to receive pro rata 
paid study leave. We are also satisfied that it is necessary and appropriate to clarify in the 
exposure draft that the entitlement applies to both full-time and part-time employees. We will 
add “A part-time associate is entitled to such leave on a pro rata basis” to clause 13.3 of the 
exposure draft. 

[34] The third issue concerns overtime entitlements. UV45, with the support of The 
Association of Professional Engineers, Scientists and Managers, Australia (APESMA)46, the 
AWU47 and the AVA48, seeks to amend the provision in clause 16.1(c) of the exposure draft, 
which provides that when calculating overtime each day’s work will stand alone. They seek to 
include an exception so that this requirement does not apply where the overtime is continuous 
with overtime which commenced on the previous day. The variation is opposed by the AFEI49

and Ai Group50. No party has made a substantive submission as to why the variation is 
necessary. In the absence of any evidence or submission that the current provision has been 
problematic we will not make the variation sought. 

[35] The Veterinary Nurses Council of Australia seeks a variation to Schedule A.2.6 of the 
exposure draft to introduce a diploma qualified classification and also to vary Schedule A.2.5 
to vary the competencies required for Level 4 to Certificate IV in Veterinary Nursing or 
equivalent.51 This is a claim for a variation of a substantive nature and will be referred to a 
separately constituted Full Bench for hearing and determination: 

[36] APESMA in their submission of 16 July 2015 also proposed a variation to clause 16.2 
of the exposure draft to clarify overtime rates for veterinary surgeons. They consider that the 
present provision which allows for an allowance to be paid as an alternative is too vague.52

However APESMA advised in correspondence dated 26 July 2016 that it no longer wished to 
pursue this variation.53

[37] On 3 February 2016, following publication of the final report, an individual employer 
has submitted that the public holiday provisions for veterinary surgeons who worked 
irregularly on weekends are unfair.54 We have decided that this matter should be referred to 
the Public Holidays Full Bench.

2.3 Aquaculture Industry Award 2010

[38] An exposure draft based on the Aquaculture Industry Award 2010 was initially 
published on 8 December 2014 and submissions in response to the exposure draft were 
received from the Ai Group55, Business SA56, the AWU57, Austuna and others58. Conferences 
were held on 28 October 2015 and 18 November 2015 and a report to the Full Bench was 






http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/AM2014200-report-021215.pdf
https://www.fwc.gov.au/documents/documents/modern_awards/award/ma000114/default.htm
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/Exposure-draft-aquaculture.pdf


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issued on 2 December 2015 which included an updated summary of submissions from the 
parties. 

[39] A revised exposure draft and an amended report were published on 8 December 2015. 
Parties were invited to file final submissions, comments or advice regarding resolved issues 
by 22 January 2016.

[40] A conference before Deputy President Bull was held on 18 November 2015. A report 
to the Full Bench (the Report) outlining the outcome of that conference was published on 
2 December 2015. A revised exposure draft incorporating agreed changes arising from the 
conference was then published on 4 December 2015. Those agreed changes will be adopted.

[41] Following the publication of the report, on 14 December 2015, parties were invited to 
provide any comment or final submissions in relation to the two outstanding issues by 
22 January 2016.59 No further submissions or comment were received. We will therefore 
proceed to determine those issues based on the submissions of interested parties which were 
earlier provided.

[42] The first issue arose from Business SA’s response to a question in the exposure draft 
about the drafting of clause 11.3(b)(iii) (which reflects the existing clause 15.2(c) of the 
Award).60 Clause 11.3(b) of the exposure draft provides:

“(b) Meal allowance

(i) An employee required to work overtime for more than two hours will
either be supplied with a meal by the employer or paid $16.02.61

(ii) Where the employer has not advised the employee on the previous day 
or earlier of:

 the requirement to work overtime; and

 that the requirement will necessitate that the employee have a 
second or subsequent meal;

the employer will supply the employee with a second or subsequent 
meal or make a further payment of $16.02 per meal.

(iii) If an employee, pursuant to notice, has provided a meal or meals and is 
not required to work overtime or is required to work less than the 
amount advised, they will be paid $16.02 for each surplus meal 
provided.”

[43] Clause 11.3(b)(ii) involved a clarificatory redrafting of clause 15.2(b) of the award as 
it currently stands, which provides:

“(b) Unless the employer advises an employee on the previous day or earlier that the 
amount of overtime to be worked will necessitate the partaking of a second or 
subsequent meal (as the case may be) the employer will provide such second or 
subsequent meal or make payment of $16.38 per meal.”






http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/AM2014200-revisedexpdft-081215.pdf
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/AM2014200-report-021215.pdf
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/AM2014200-report-021215.pdf
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/AM2014200-report-amended-111215.pdf
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/AM2014200-revisedexpdft-081215.pdf


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[44] The question posed by the exposure draft was:

“Parties are asked whether clause 11.3(b)(iii) should clearly state that the amount payable in 
clause 11.3(b)(i) is not payable in addition to the amount in clause 11.3(b)(iii). Should the 
words ‘to work less than the amount advised’ be changed to ‘to work less than two hours’?”

[45] Business SA’s submission was confined to an expression of agreement with the 
proposition in the second sentence above. Business SA did not attend the 18 November 2015 
conference in person or by telephone, and so did not advance any further explanation of its 
position. The AWU62 and the NSW Farmers’ Industrial Association (NSWFA)63 submitted 
that the provision in the exposure draft should not be changed. NSWFA agree to leave the 
Exposure Draft as it currently stands.64 The AWU’s submission was based on the proposition 
that the meal allowances provided under clauses 11.3(b)(i), (ii) and (iii) were separate 
entitlements.65

[46] The meal allowance entitlements regarding overtime may be summarised as follows:

(a) A meal allowance is payable or a meal must be provided where more than two 
hours overtime is worked under clause 11.3(b)(i). 

(b) Where no notice has been provided on the previous day or earlier of both the 
requirement to work overtime and that the length of the overtime would make 
it necessary for the employee to have a second or subsequent meal, the 
employee is to be provided with a second or subsequent meal or paid the 
allowance per meal under clause 11.3(b)(ii). The effect of this provision is that 
where such notice is provided, the employer is not required to provide any 
meal or make any payment in addition to that required by clause 11.3(b)(i). 

(c) If an employee is given notice of a requirement to work overtime and 
consequently provides a meal or meals for himself or herself, and the employee 
is subsequently not required to work overtime at all or for less than the amount 
advised, the employee will be paid the allowance for each surplus meal 
provided under clause 11.3(b)(iii). 

[47] The amendment suggested in the exposure draft and embraced by Business SA would, 
we consider, not be workable because it fails to take into account that the surplus meal may be 
a second or subsequent meal which is not required because the overtime worked, although 
over two hours, is not of the amount advised and does not justify the provision of the second 
or subsequent meal. However, it must be observed that the operation of (ii) and (iii) is obscure 
because there is no specification of the period of overtime that is necessary to require the 
provision of a second or subsequent meal. Presumably it would have to be a number of hours 
beyond the first two hours upon which the first meal or the payment of the first meal 
allowance is required under (i), but the clause gives no certainty about this. We consider that 
the clause should be amended to rectify this. Having regard to the fact that the Award requires 
a paid break of 20 minutes immediately after finishing ordinary hours if more than one and a 
half hours overtime is to be worked, and further such breaks after every four hours of 
overtime (see cl.14.7 of the exposure draft), we propose to re-draft clause 11.3(b) to make it 
clear that the entitlement to a second or subsequent meal break aligns with the provision of 
overtime meal crib breaks. The re-drafted clause would read as follows: 








[2016] FWCFB 7254 

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(b) Meal allowance

(i) An employee required to work overtime for more than two hours will either be 
supplied with a meal by the employer or paid $16.38. 

(ii) An employee is additionally required to be supplied with a meal by the 
employer or paid $16.38 on each occasion after the first occasion the employee 
is required to be provided with an overtime crib break in accordance with 
clause 14.7(a) unless the employer has advised the employee on the previous 
day or earlier of: 

 a requirement to work overtime; and 

 that the requirement will necessitate that the employee have a second 
or subsequent meal.

(iii) If an employee, in accordance with notice provided by the employer the 
previous day or earlier of the amount of overtime to be worked, has provided a 
meal or meals, and is not required to work overtime or is required to work an 
amount of overtime that is less than two hours in the case of the first meal, or 
less than four hours in the case of the second meal, or less than an additional 
four hours in the case of a subsequent meal, they will be paid $16.38 for each 
surplus meal provided.”

[48] Any party which opposes the re-drafted clause above may file a submission in that 
respect within 14 days of this decision. We will then determine any outstanding issue on the 
papers. If no such submission is filed, the new clause will be incorporated into the exposure 
draft.

[49] The second issue is a proposal by Business SA66 to amend the drafting of clause 15.3 
Taking annual leave of the exposure draft as follows:

15.3 Taking annual leave

“Annual leave is to be taken within 18 months six months of the entitlement accruing
full four week entitlement accruing…..”

[50] Business SA submitted that the current wording in the exposure draft implies that 
annual leave is accrued on an annual basis and that no entitlement exists before 12 months.67

Under the FW Act annual leave is accrued progressively throughout the year. This puts into 
question the practical effect of this clause. 

[51] Consistent with the discussion which occurred at the Full Bench hearing of 7 October 
2015,68 this issue has been referred to the Annual Leave Full Bench.

2.4 Corrections and Detention (Private Sector) Award 2010

[52] An exposure draft based on the Corrections and Detention (Private Sector) Award 
2010 (the Corrections award) was initially published on 15 December 2014 and submissions 
in response to the exposure draft were received from Ai Group69 and the AWU70. After the 






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hearing on 7 October 2015, a further revised summary of submissions was published 
identifying those matters that had been resolved by the Full Bench decisions discussed earlier, 
those matters withdrawn by the parties and those matters that were to be referred to various 
Common issues Full Benches.

[53] An amended exposure draft and a draft report were published for discussion at a 
conference on 27 October 2015. Following the conference a further amended exposure draft
and a revised draft report were published setting out the changes to the exposure draft that the 
parties had agreed on. Parties were provided 14 days to file further written submissions on 
two outstanding issues relating to span of hours for part-time day workers and the dog 
handling allowance. Three submissions were received (AWU71, Ai Group72 and UV73) and a 
further revised exposure draft was published on 1 December 2015 for discussion at the 
conference on 11 December 2015. 

[54] Ai Group74 and the AWU75 identified typographical errors in the exposure draft in 
their submissions of 13 November 2015 relating to clauses 2.1, 20.2 and 11.3(a)(i) 
respectively. UV did not oppose the typographical errors identified by Ai Group at the 
conference on 11 December 2015,76 accordingly we propose to adopt these changes. The 
further revised exposure draft published 1 December 2015 was updated to reflect these 
changes.

[55] We propose to adopt all of the agreed changes set out at Paragraph [1] of the revised 
draft report which are reflected in the further revised exposure draft published on the 
Commission’s website on 1 December 2015.

[56] We now turn to the two outstanding issues.

[57] The first issue concerns the span of hours applicable to part-time employees. Clause 
8.2(a) of the further revised exposure draft states:

“(a) Ordinary hours of work for full-time employees other than shiftworkers are worked 
between 6.00 am and 6.00 pm any day of the week.”

[58] The parties were asked to clarify whether the span of ordinary hours in clause 8.2(a) 
also applies to part-time day workers.

[59] The AWU submits that the span of hours in clause 8.2(a) does apply to part-time day 
workers.77 In support of this submission the AWU relies on two other provisions in the 
exposure draft:

(i) clause 6.4(b)(iii) which provides that a part-time employee:

‘receives, on a pro rata basis, equivalent pay, and conditions to those of full-
time employees who do the same kind of work.’, and

(ii) clause 14.2(a) which provides, :

‘A full-time or part-time employee is paid at overtime rates for any work done 
outside the spread of hours set out in clause 8’ (emphasis added)






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[60] The provisions of the exposure draft at clause 6.4(b)(iii) and 14.2(a) are in 
substantially the same terms as clauses 10.4(b)(iii) and 22.2(a) of the current award.

[61] The AWU contends that it is evident from clause 14.2(a) that the span of hours 
specified in clause 8 applies to part-time employees.78 UV supports the AWU’s submission.79

[62] Ai Group contends that the span of hours in clause 8.2(a) does not apply to part-time 
day workers as clause 8.2(a) unambiguously states that it only applies to full-time 
employees.80 In reply to the points advanced by the AWU, Ai Group submits that:

(i) clause 6.4(b)(iii) must be read subject to the terms of the specific provision 
which gives rise to the ‘conditions’. Further, it contemplates that certain award 
terms and conditions apply on a pro rata basis. As the specification of a span of 
hours cannot be applied on a pro rata basis, the practical application of clause 
6.4(b)(iii) to clause 8.2(a) is ambiguous (if it applies at all).

(ii) clause 14.2(a) does not displace the specific terms of clause 8.2(a). It simply 
entitles a part-time employee to overtime rates for any work done outside the 
spread of ordinary hours set out in clause 8 ‘to the extent that such provisions 
apply to them’.81

[63] The revised draft report published on 30 October 2015 asked parties to consult with 
their respective members to obtain more information about the current practice of rostering 
part-time employees and the incidence of part-time work. The purpose of the consultation 
process was to provide information to enable the Commission to assess the impact, if any, of 
an award provision applying the span of hours in clause 8.2(a) to part-time day workers.

[64] Ai Group advised that they were unable to obtain information regarding current 
industry practice with respect to the rostering of part-time employees or the incidence of part-
time work. Noting that the vast majority of relevant pre-modern instruments did not stipulate 
a spread of hours, Ai Group maintained that the proposed variation sought by the AWU was a 
substantive change and should not be made.82

[65] United Voice reported that all its members in the sector, including all detention 
officers in the privately operated immigration detention system and prison officers in some 
privately operated prisons in New South Wales and Queensland, are covered by enterprise 
agreements, with a low incidence of part-time employment.83

[66] At the 11 December 2015 conference, parties were directed to consult their members 
further in an effort to obtain additional information relating to the spread of hours of part-time 
day workers.84 No further information was received and the parties were content to rely on 
their previous submissions.85

[67] We agree with the AWU’s submission. Clause 8.2(a) of the further revised exposure 
draft will be amended to make it clear that it applies to part-time day workers. 

[68] It is plainly intended that part-time employees receive equivalent pay and conditions to 
those of full-time employees. The expression ‘on a pro rata basis’, in clause 6.4(b)(ii), 
qualifies that general entitlement, but only in circumstances where the entitlement is derived 
from the number of hours worked. Further, it is apparent from clause 14.2(a) that the spread 






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of hours specified in clause 8 is intended to apply to part-time employees. Accordingly, to 
make this clear, clause 8.2(a) will be amended to read as follows:

“(a) Ordinary hours of work for full-time and part-time employees other than 
shiftworkers are worked between 6.00 am and 6.00 pm any day of the week.”

[69] The second unresolved issue concerns the scope of clause 11.2(b) of the exposure draft 
– the dog handler’s allowance. Ai Group submits that the clause in the exposure draft deviates 
substantively from clause 15.5 of the current award by expanding the application of the 
provision and imposing a new positive obligation on the employer to be responsible for the 
tasks listed in clause 15.5 of the current award, including feeding and exercising.86

[70] Clause 15.5 of the current award provides as follows:

“15.5 Dog handler’s allowance

(a) Where an employee is responsible for maintaining an animal attached to a Dog 
Handlers’ Unit and such responsibility includes feeding, exercising, home 
kennelling, transporting, and ensuring the safety and security of the animal; the 
employer will either directly provide and/or pay the costs associated with 
maintaining the animal in accordance with this clause, or the employee will be 
paid a fortnightly dog handler’s allowance calculated at 5% of the fortnightly 
rate of pay prescribed in clause 14.1 for the employee’s classification.

(b) An employee and their employer may agree to arrangements that involve part 
direct provision and/or payment of costs and part payment of the fortnightly 
dog handler’s allowance.

(c) The employer will be responsible for providing alternative kennel facilities for 
the animal during an employee’s leave.

(d) The employer will cover the cost of approved veterinary treatment provided to 
the animal.”

[71] Clause 11.2(b) of the further revised exposure draft seeks to express the existing 
provision in plain language, it states:

“(b) Dog handler’s allowance

(i) Where an employee is responsible for maintaining an animal attached 
to a dog handler’s unit an employer will directly provide the following 
services:

 feeding;

 exercising;

 home kennelling;

 transporting; and








[2016] FWCFB 7254 

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 ensuring the safety and security of the animal.

(ii) If the employer does not provide the services in clause 11.2(b)(i) they 
will:

 pay the costs associated with maintaining the animal; or

 pay the employee a weekly allowance of 5% of the employee’s 
weekly rate of pay in clause 10.1.

(iii) An employee and their employer may agree to arrangements that 
involve part direct provision and/or payment of costs and part payment 
of the weekly dog handler’s allowance.

(iv) The employer will be responsible for providing alternative kennel 
facilities for the animal during an employee’s leave.

(v) The employer will cover the cost of approved veterinary treatment 
provided to the animal.”

[72] An amended draft clause 11.2(b) was put to the parties during the conference on 
11 December 2015 in an effort to address Ai Group’s concerns. Parties were then given an 
opportunity to review the draft clause in writing and provide further submissions.87

[73] The amended draft clause provides as follows:

“11.2 Wage related allowances

(b) Dog handler’s allowance

(i) For the purpose of this subclause 11.2(b), an employee is responsible 
for maintaining an animal attached to a Dog Handers’ Unit if they are 
responsible for feeding; exercising; home kennelling; transporting and ensuring 
the safety and security of the animal.

(ii) Where an employee is responsible for maintaining an animal attached 
to a dog handler’s unit an employer will directly provide the following 
services:

 feeding;

 exercising;

 home kennelling;

 transporting; and

 ensuring the safety and security of the animal.








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(iii) If the employer does not provide the services in clause 11.2(b)(i) they 
will:

 pay the costs associated with maintaining the animal; or

 pay the employee a weekly allowance of 5% of the employee’s 
weekly rate of pay in clause 10.1.

(iv) An employee and their employer may agree to arrangements that 
involve part direct provision and/or payment of costs and part payment 
of the weekly dog handler’s allowance.

(v) The employer will be responsible for providing alternative kennel 
facilities for the animal during an employee’s leave.

(vi) The employer will cover the cost of approved veterinary treatment 
provided to the animal.”

[74] Ai Group supports clause 11.2(b)(i) but not clauses 11.2(b)(ii) and (iii), reiterating 
their concern that the draft clause deviates from the current award, and relies on their previous 
submissions in this regard.88 United Voice supports the draft clause in its entirety.89

[75] The essence of Ai Group’s submissions is the contention that subclause 11.2(b)(ii), 
‘imposes a new positive obligation on the employer to provide the identified services while 
the current award assumes that responsibility will fall to the employee, with an employer 
merely having the option of providing or paying the costs of such services’.90

[76] In our view the submission put proceeds on a false premise – in that it misconstrues 
clause 15.5 of the current award. Clause 15.5(a) clearly states that ‘the employer will either 
directly provide and/or pay the costs associated with maintaining the animal in accordance 
with this clause, or the employee will be paid a fortnightly dog handler’s allowance calculated 
at 5% of the fortnightly rate of pay’. It is apparent from a reading of the clause as a whole that 
‘maintaining the animal’ includes ‘feeding, exercising, home kennelling, transporting and 
ensuring the safety and security of the animal’. Hence, the employer must either directly 
provide those services (i.e. feeding, exercising the animal etc.) or pay the costs of doing so, or 
pay the employee allowance. While expressed differently, the amended draft clause provides 
the employer with the same options. 

[77] We propose to insert the amended draft clause into the further revised exposure draft.

2.5 Fire Fighting Industry Award 2010

[78] An exposure draft based on the Fire Fighting Industry Award 2010 (the Fire Fighting 
award) was initially published on 15 December 2014 and submissions in response were 
received from the AWU raising a range of technical and drafting issues.91 The employer 
parties did not attend the hearing on 7 October 2015, but participated in a conference on 
21 October 2015, after which a revised exposure draft was published and further directions
were issued giving parties another opportunity to file comprehensive written submissions on 
the technical and drafting issues related to the exposure draft. 






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[79] Submissions were received from the United Firefighters’ Union of Australia 
(UFUA)92, Country Fire Authority (CFA)93 and Metropolitan Fire Brigade (MFB)94. A further 
revised summary of submissions and further revised exposure draft were published prior to 
further conferences on 7 and 17 December 2015. During the 17 December conference, 
discussions were held regarding the MFB proposal to introduce flexible working 
arrangements for public sector employees. There are two limbs to the MFB proposal:

(i) to permit part-time employees to be employed in the public sector; and

(ii) the removal of the current distinction between the public sector and the private 
sector as to the types of rostering arrangements (see clauses 22 and 23 of the 
Award).

[80] Due to the complexity of these issues, the opposition of the UFUA and AWU, and the 
fact that evidence would be advanced in support of the claim, these matters were referred to a 
separately constituted Full Bench for determination.95

[81] Apart from these two substantive issues, most of the remaining issues raised during the 
Award stage have been resolved by consent and will be adopted. The issues to be determined 
by this Full Bench are:

(i) payment while on annual leave; and

(ii) payment for work on a public holiday when an additional day of leave is 
granted.96

[82] As to the first matter, clause 22 of the further revised exposure draft published on 
1 December 2015 asked parties to consider whether a provision should be inserted to clarify 
the rate of pay for an employee on annual leave.

[83] The AWU and UFUA submitted that such a provision would be desirable97 while the 
MFB considered the current wording adequate.98 The CFA submitted such a provision would 
not serve any useful purpose.99 The parties were content for the Full Bench to resolve the 
issue on the basis of the material already filed.100

[84] In paragraph 52 of the December 2014 decision we stated:

“… it is important that the rate of pay to be paid to an employee while on a period of 
paid leave is clearly identified in the relevant modern award”101.

[85] Due to the different rates of pay used for various purposes in this award (i.e. minimum 
hourly rate, ordinary hourly rate and total hourly rate) we consider it would be of assistance to 
insert a provision to clarify the rate of pay for an employee while on annual leave. However, it 
is not clear which rate of pay should be paid to an employee while on annual leave. The 
options appear to be either the ‘ordinary hourly rate’ or the ‘total hourly rate’. The answer to 
that question may depend on whether the employee is a shiftworker or not. We propose to 
provide an opportunity for the parties to comment on which rate(s) of pay is to be specified 
through written submissions. 

[86] The second issue concerns clause 21.3(a) which currently provides that:






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“(a) Not later than two weeks after a public holiday a day worker may elect to be paid at 
the rate of 50% of their ordinary hourly rate for each hour of rostered ordinary work 
performed on that day and granted one day’s leave instead of the public holiday.”

[87] The further revised exposure draft published 1 December 2015 asked parties to 
comment on whether the reference to 50% should be to 150% of the ordinary hourly rate. 

[88] MFB submit that the reference to 50% is correct on the basis that a day worker who 
elects to be paid at 50% of their ordinary hourly rate under clause 21.3(a) is also granted an 
additional one day’s leave (together, equivalent to 150%).102 The unions assert the reference 
should be to 150%.103

[89] At the 17 December 2015 conference parties’ advised that they were content for the 
Full Bench to resolve the issue on the material already filed.104

[90] There was no dispute that in accordance with clause 21.2 an employee who works a 
public holiday is entitled to a penalty of 250% of the total hourly rate where they do not take 
an additional day of leave as part compensation. To ensure that an employee who works on a 
public holiday and elects to take an additional one day’s leave is not disadvantaged when 
compared to an employee who takes their entitlement as pay, we propose to amend clause 
21.3 of the exposure draft to read:

“21.3 Public holidays – day workers

(a) Not later than two weeks after a public holiday a day worker may elect to be 
paid at the rate of 150% of their ordinary hourly rate for each hour of rostered 
ordinary work performed on that day and granted one day’s leave instead of the 
public holiday. This entitlement is instead of the rate in clause 21.1.”

2.6 Graphic Arts, Printing and Publishing Award 2010

[91] An exposure draft based on the Graphic Arts, Printing and Publishing Award 2010
(the Graphic Arts Award) was initially published on 8 December 2014 and submissions in 
response to the exposure draft were received from the Printing Industries Association of 
Australia (PIAA)105, Ai Group106, Business SA107, the AFEI108, and ABI109. After a 
conference conducted by Ross J, President, on 2 September 2015, a further revised summary 
of submissions was published identifying those issues which had been resolved and those 
which were still relevant. 

[92] An amended exposure draft was published on 30 September 2015 and further 
submissions were received in relation to it. A revised exposure draft and report were 
published on 8 December 2015 setting out the changes which the parties had agreed upon. 
Final submissions or comments were requested from the parties by 22 January 2016. 
Subsequent correspondence was received from the Ai Group110 and “Automotive, Food, 
Metals, Engineering, Printing and Kindred Industries Union” known as the Australian 
Manufacturing Workers’ Union (AMWU)111.

[93] A number of non-controversial technical and drafting issues were agreed between the 
parties including changes to reflect recent Full Bench decisions. A number of changes were 
agreed to on the basis of providing consistency and to remove ambiguity.






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[94] The agreed changes (identified in the 8 December 2015 report) will be adopted and 
will be incorporated into a further exposure draft to be published in due course.

[95] There remain four outstanding issues in relation to this Award.

(1) Training allowances: Clause 7 of the exposure draft provides that all conditions 
of the Award apply to apprentices unless otherwise stated. Clause 17.4 of 
exposure draft provides for certain training allowances. Both these provisions 
reflect the Award as it currently stands (clauses 13 and 25.4 respectively. The 
Ai Group proposes that training allowances should not apply to trainees.112

This is opposed by the AMWU.113

(2) Competencies: The AMWU seeks to amend the Schedule B—Competencies of 
the exposure draft (which reflects Schedule C of the current Award) on the 
basis that they are out of date.114 This is opposed by the Ai Group.115

(3) Payment of wages on termination: Ai Group seeks a variation to clause 18.7 of 
the exposure draft (clause 28.5 of the current Award) to provide that 
termination monies may be paid in accordance with the employer’s pay cycle 
when payment is made by electronic funds transfer.116 The current 
requirement is for employers to pay employees by the end of the next business 
day following termination. Ai Group has advanced similar claims in a number 
of other awards. This is opposed by the AMWU.117

(4) Coverage of metropolitan daily newspapers: The AMWU submits that daily 
metropolitan newspapers are not covered by the Award because its coverage is 
relevantly confined to the “production of non-daily and regional daily 
newspapers” (clause 4.9 of the current Award and clause 3.2(n) of the exposure 
draft).118 It proposes that the coverage of the Award be amended to extend to 
daily metropolitan newspapers. Fairfax Media119, West Australian 
Newspapers Limited (WAN) and ColourPress Pty Ltd submit that daily 
metropolitans are covered by the Award,120 although WAN and ColourPress 
accept there is some ambiguity in the way the coverage clause is worded.121

[96] We consider that the first three issues identified above are substantive issues which 
should be referred to a separately constituted Full Bench for hearing and determination. In 
relation to the fourth issue, we accept in principle that it should be made clear that the 
Award’s coverage extends to metropolitan daily newspapers. However that change or 
clarification of coverage may require consequential changes to various other provisions of the 
Award having regard to the terms of the pre-2009 industrial instruments which applied. A 
number of parties have adverted to the need for this wider consideration to arise. Accordingly 
we will also refer this issue to the separately constituted Full Bench for finalisation.

2.7 Health Professionals and Support Services Award 2010

[97] Following the publication of the initial exposure draft in relation to this award on 
8 December 2014 a conference was conducted by Commissioner Bissett on 3 February 2015. 
After the receipt of submissions from various interested parties, a further conference was 
conducted by Commissioner Roe on 29 October 2015. Commissioner Roe’s report to the Full 






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Bench concerning this conference was published on 30 October 2015. Following receipt of 
further submissions in respect to items identified in the report a further report to the Full 
Bench was published on 27 November 2015 together with a revised summary of submissions
on 7 December 2015 and a revised exposure draft on 4 December 2015. After some additional 
submissions were received a further report to the Full Bench was published on 5 January 2016 
and further conferences to deal specifically with the outstanding issues concerning hours of 
work and penalty issues were scheduled for 4 February 2016 and 19 February 2016. This led 
to a revised proposal in respect to the outstanding hours of work and penalty issues from the 
Health Services Union of Australia (HSU).122 The progress in respect to these matters was 
summarised in a further report to the Full Bench of 26 April 2016. 

[98] We propose to adopt all of the agreed changes set out in the Commissioner’s reports, 
which are reflected in the revised exposure draft published on the Commission’s website on 
4 December 2015.

[99] The conference process has led to the resolution of a number of the issues raised by 
various parties. We now turn to the remaining outstanding matters. 

[100] The most significant outstanding issues relate to hours of work. These issues affect 
clauses 8.1, 9.1, 18 and 19 of the exposure draft concerning meal breaks, span of hours and 
overtime and related issues of shift, weekend and public holiday penalties. The HSU package 
of proposed alternative variations in respect to these matters is attached to the report to the 
Full Bench of 26 April 2016. The HSU package has subsequently been supported (subject to 
some clarifications) by a number of employer organisations. Other employer organisations 
remain opposed to the HSU proposed package or to parts of the package. The position of the 
various parties in response to the HSU proposal is reflected in the revised summary of 
submissions published on 21 June 2016. Because these issues are substantive in nature they 
will be referred to a separate Full Bench for hearing and determination. 

[101] There are a number of other matters which will be referred to a separate Full Bench as 
they are likely to require further submissions and the hearing of evidence. They are as 
follows:

 The proposal from Medical Imaging Employment Relations Group (MIERG) for a 
Schedule J—Medical Imaging which sets out comprehensively separate pay and 
conditions for medical imaging. The revised proposal from MIERG is set out in its 
submissions of 19 May 2016.123

 An issue raised by the HSU as to whether the list of common health professionals 
in Schedules A and B (referred to in clauses 3.1(b) and 11) is exhaustive or 
indicative and whether or not the exposure draft should be varied to clarify this.124

 Variations for translators and interpreters proposed by the APESMA125. This 
includes variations proposed to clause 11.2 and Schedules A and B of the exposure 
draft. It also includes a consequential proposal to insert in Schedule I—Definitions 
a definition of NAATI; “National Accreditation Authority for Translators and 
Interpreters Ltd”.






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 The proposal by Ai Group126 and the Chiropractors Association of Australia127 to 
introduce a provision for annualised salary for health professionals and employees 
at higher classification levels in the support services stream.

 The proposal by HSU to introduce classification and pay rate for intern health 
professionals in Schedule A.128

 The proposal by the HSU to vary clause 20—Annual Leave, of the exposure draft, 
in respect to the entitlement of shiftworkers to an additional week of annual 
leave.129

 The proposal by Aged and Community Services NSW & ACT and others (jointly 
ACE) to vary clause 8.3 of the exposure draft concerning the change of rosters, so 
that rosters may be varied by mutual consent without the need to provide seven 
days’ notice.130

[102] Consistent with a directions made by Vice President Hatcher on 7 July 2016, parties 
seeking variations in relation to the matters identified above have now filed draft 
determinations specifying those variations. They will form part of the matters referred to the 
separately constituted Full Bench131.

2.8 Horse and Greyhound Training Award 2010

[103] An exposure draft based on the Horse and Greyhound Training Award 2010 (the 
Greyhound award) was initially published on 15 December 2014 and following this, 
submissions were received from Ai Group132, the AWU133, AFEI134 and the Australian 
Trainers’ Association (ATA)135. After the hearing on 7 October 2015, a further revised 
summary of submissions was published identifying those matters that had been resolved by 
the Full Bench decisions outlined in paragraph [7], those withdrawn by the parties and those 
that were to be referred to other Full Benches dealing with Common issues. 

[104] A further conference was listed for 27 October 2015 to discuss the further revised 
summary of submissions, amended exposure draft and a draft report. Following the 
conference a further amended exposure draft and a revised draft report were published and 
parties were provided 14 days to file further written submissions on these revised documents. 
The AWU136, ATA137 and Ai Group138 made submissions in response. A range of non-
contentious drafting errors raised in these submissions were corrected139 and a further revised 
exposure draft was published on 1 December 2015.

[105] We propose to adopt all of the agreed changes set out at paragraph [1] of the revised 
draft report as well as those reflected in the further revised exposure draft published on 
1 December 2015.

[106] The AWU submitted that the rates in tables A.2.2 and A.2.3 of the exposure draft 
should be amended as they are incorrect.140 It is contended that the rates fail to take into 
account casual loading, which is paid for all purposes, making the 25% loading payable on all 
hours worked, including overtime, weekends and public holidays. In accordance with 
paragraph 110 of the September 2015 decision141 and consistent with our approach in 
paragraph 59 of the October 2015 decision142, we have amended the tables in Schedule A.2 in






http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/Exposure-draft-horse-and-greyhound-further-revised-091215.pdf
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/AM2014205-revised-draft-report-301015.pdf
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/AM2014205-revised-draft-report-301015.pdf
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/AM2014205-Exposure-draft-further-revised-011215.pdf
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/AM2014205-Exposure-draft-further-revised-011215.pdf
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/AM2014205-revised-draft-report-301015.pdf
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/AM2014205-Exposure-draft-horse-and-greyhound-further-revised-301015.pdf
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/AM2014205-draft-report-FWC-211015.pdf
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/AM2014205-exposuredraft-FWC-211015.pdf
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/Horse-Greyhound-sub-summary-revised141015.pdf
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the further revised exposure draft to take into account that the casual loading is payable for all 
purposes.

[107] We now turn to the two outstanding issues.

[108] The first issue concerns the payment of public holiday penalties to casuals. The ATA 
contends that the current Greyhound award provides that casuals who work on a public 
holiday are only entitled to the 25% casual loading and do not have an entitlement to the 
public holiday loading prescribed in clause 26.3 of the current award.143

[109] The AWU submit that in its present form the clause would not meet the modern 
awards objective and note that if the clause was to remain, it would be the only modern award 
which excludes casual employees from receiving penalty rates for work on a public 
holiday.144

[110] The entitlements of a casual employee working on a public holiday will be reviewed 
following the outcome of the Casual Employment matter in AM2014/197 and any decision 
issued by that Full Bench.

[111] The second issue concerns ‘Types of employment’. Clause 6.2 of the exposure draft 
provided as follows:

“An employer will inform each employee of the terms of their engagement and their 
type of employment.”

[112] The comparable provision in the current award is clause 10.1 which provides, 
relevantly:

“It must be clearly indicated by the employer whether the employee is engaged on a 
full-time, part-time or casual basis”.

[113] The AWU submits that clause 6.2 does not specify when an employer has to inform an 
employee of the terms of their engagement and their type of employment and proposes the 
addition of the following words, at the commencement of clause 6.2: ‘Before the 
commencement of employment’.145

[114] Ai Group is opposed to the amendment proposed by the AWU and, further, submits 
that the reference to ‘terms of their engagement’ extends the current obligation to inform an 
employee of their type of employment and should be deleted.146

[115] The ATA does not oppose the AWU’s proposal nor is it opposed to the deletion of the 
words ‘terms of their engagement’ as proposed by Ai Group.147

[116] In an attempt to resolve the parties concerns the Commission inserted the following 
clause into the further amended exposure draft for the consideration of the parties:

“At the commencement of their employment the employer will inform each employee 
of their type of employment (i.e. full-time, part-time or casual).”






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[117] Parties were given an opportunity to make any comments on the proposed clause. In 
their submission of 13 November 2015, the AWU advised that they do not object to the 
wording suggested by the Commission.148 No other submissions in relation to this issue have 
been received and we will adopt the proposed clause.

2.9 Medical Practitioners Award 2010

[118] An exposure draft based on the Medical Practitioners Award 2010 (the Medical 
Practitioners Award) was initially published on 8 December 2014. Submissions in response to 
the exposure draft were received from various interested parties, and a conference was 
conducted by Commissioner Roe on 8 October 2015. The Commissioner’s report to the Full 
Bench concerning this conference was published on 9 October 2015 together with a revised 
summary of submissions. In this report submissions were requested in respect to one matter 
raised by the Australian Salaried Medical Officers Federation (ASMOF), and in response the 
ASMOF confirmed on 15 October 2015 that it no longer wished to pursue that matter.149 A 
further report was published on 27 November 2015. A revised exposure draft reflecting the 
reports were published on 4 December 2015 together with a revised summary of submissions
on 7 December 2015. A final report was published on 5 January 2016.

[119] We propose to adopt all of the agreed changes set out in the Commissioner’s reports 
which are reflected in the revised exposure draft published on the Commission’s website on 
4 December 2015.

[120] The only outstanding matter is a proposal by the HSU150 to include a provision similar 
to that included in the Nurses Award 2010 and Health Professionals and Support Services
Award 2010 for ceremonial leave. It is noted that there is a proposal to vary the provision in 
those Awards and the Aged Care Award 2010 to include Torres Strait Islander in addition to 
Aboriginal tradition. There has been no opposition to this proposal and it has been included in 
the exposure draft for the other health awards which include ceremonial leave. We consider 
that matter of the proposal to include provision for ceremonial leave in the Medical 
Practitioners Award 2010 can be determined by this Full Bench upon the basis of interested 
parties’ written submissions. The parties generally supported this approach at the conferences 
before Commissioner Roe and this was confirmed at the directions hearing before Vice 
President Hatcher on 7 July 2016. The opportunity was provided for further written 
submissions, but the HSU and Ai Group elected to rely upon their earlier submissions.

[121] The variation sought is to include a provision that “An employee who is legitimately 
required by Aboriginal or Torres Strait Islander tradition to be absent from work for 
ceremonial purposes will be entitled to up to 10 working days unpaid leave in any one year, 
with the approval of the employer.”

[122] The HSU submits that the variation meets the modern award objective, and 
particularly that aspect of the objective in s.134(1)(c) of the FW Act of promoting social 
inclusion through increased workforce participation.151 Recognition of ceremonial 
obligations, and an entitlement to leave in that event, will assist to facilitate and promote the 
participation of Aboriginal and Torres Strait Islander peoples in the workforce. The HSU 
submits that the failure to include the provision at the time of the making the Award was an 
oversight and it is anomalous to not include the provision when it is included in the awards 
for other professional employees who work alongside doctors; the Nurses Award 2010 and 
the Health Professionals and Support Services Award 2010.152






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[123]
Ai Group rejects the submissions that the failure to include the provision was an oversight or 
an anomaly. In the process leading up to the making of the Award the exposure draft did not 
include ceremonial leave, and the National Aboriginal Community Controlled Health 
Organisation filed a submission on 16 February 2016 which argued for a separate health 
award for Aboriginal and Torres Strait Islander community controlled organisations. That 
submission made reference to specific entitlements including ceremonial leave in awards 
specific to Aboriginal Health Services. Ai Group submit that the awards for the Aboriginal 
Health Services referred to either did not cover medical practitioners or where they did cover 
medical practitioners they did not include ceremonial leave.153

[124] This matter was referred to by the Full Bench when considering the content of the 
“health and welfare services awards” (which included the Nurses Award 2010, Aged Care 
Industry Award 2010, Health, Professionals and Support Services Award 2010 and Medical 
Practitioners Award 2010) as follows:

“[157] The National Aboriginal Community Controlled Health Organisation 
(NACCHO) submitted that the aboriginal and Torres Strait islander controlled health 
services deliver primary health care services and are operated by local aboriginal 
communities with elected boards of management. It argued that the services need 
separate regulation and it opposed the “mainstreaming” of staff through the award 
modernisation process which may have the affect (sic) of divorcing staff from the 
existing governance structures. It raised current award provisions dealing with self 
determination and ceremonial leave. We have included ceremonial leave provisions in 
the relevant awards. We deal with the question of separate award coverage at the end 
of this decision. [2009] AIRCFB 345 at [157].”

[125] We are not satisfied that this passage suggests that the Full Bench gave specific 
consideration to the question of whether or not it is was appropriate to include ceremonial 
leave in the Medical Practitioners Award 2010. 

[126] We are satisfied that the inclusion of a provision for ceremonial leave is consistent 
with the objective at s.134(1)(c). It has been established that the inclusion of ceremonial leave 
is necessary and appropriate in the Nurses Award 2010 and the Health, Professionals and 
Support Services Award 2010. We are not satisfied that doctors covered by the Medical 
Practitioners Award 2010, particularly those engaged in Aboriginal Health Services, are or 
should be in any different position to Aboriginal and Torres Strait Islanders covered by the 
Nurses Award 2010 and the Health, Professionals and Support Services Award 2010. We will 
make the variation sought to include ceremonial leave in the exposure draft of the Medical 
Practitioners Award. 

2.10 Nurses Award 2010

[127] Following the publication of the initial exposure draft in relation to this award on 
8 December 2014 and the receipt of submissions from various interested parties, a conference 
was conducted by Commissioner Roe on 8 October 2015. The Commissioner’s report to the 
Full Bench concerning this conference was published on 9 October 2015 together with a 
revised summary of submissions. In the report submissions were requested in respect to a 
number of matters. A further report was published on 27 November 2015. A revised exposure 
draft reflecting the reports was published on 4 December 2015 together with a revised 






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https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014207-exposure-draft-nurses-revised-041215.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014206andors-report-271115.pdf
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[2016] FWCFB 7254 

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summary of submissions on 7 December 2015. A final report was published on 5 January 
2016.

[128] We propose to adopt all of the agreed changes set out in the Commissioner’s reports 
which are reflected in the revised exposure draft published on the Commission’s website on 
4 December 2015.

[129] We will refer the following proposed variations to the Casual and Part-time 
Employment Full Bench. 

 the ACE154 and Ai Group155 proposal to vary Clause 6.4(d) of the exposure draft to 
clarify how casual employee’s entitlement for working ordinary hours on 
weekends;

 the Australian Nursing and Midwifery Federation (ANMF) proposal to vary Clause 
15.1(c) of the exposure draft to clarify entitlement to receive casual loading in 
addition to overtime penalty.156

[130] The ANMF proposes that a minimum shift length should be introduced for all 
employees, including full-time employees.157 Clause 10.4(c) of the exposure draft provides 
for a minimum two hour payment for casuals. The parties agree that this matter should be 
finalised after the Casual and Part-time Employment Full Bench has determined proposals in 
respect to a minimum shift length for part-time and casual employees. We agree with this 
approach. The ANMF proposal will be finalised by this Full Bench on the basis of written 
submissions after the outcome of the Casual and Part-time Employment Full Bench matters 
are known. 

[131] The ANMF seeks to extend the application of clause 18.4 of the exposure draft in 
respect to public holidays to at least some part-time employees.158 We will refer the proposed 
variation to the Public Holidays Full Bench. 

[132] At the conferences before Commissioner Roe and following the hearing before Vice 
President Hatcher on 7 July 2016 the parties agreed that the following three matters should be 
determined on the basis of written submissions: 

 The ANMF proposes to vary the classification definitions in Schedule A to update 
definitions and terminology to reflect current nomenclature regarding the 
regulation of the nursing profession. It also proposes to vary the definition of 
“Nursing Assistant” to remove “or enrolled” to reflect the current state of the law 
which they say does not allow enrolled nurses to supervise nursing assistants.159

 The ANMF also proposes to vary Schedule B—Summary of Hourly Rates to 
include tables dealing with situations where more than one loading potentially 
applies, for example, where casuals perform overtime.160

 The ACE proposes a variation to clause 6.4(d) of the exposure draft to clarify how 
casual employee’s entitlement for working ordinary hours on weekends.161

[133] Interested parties were provided with the opportunity to make further written 
submissions in respect to the third of these matters. Only the ANMF162 made a further 
submission. This Full Bench will determine the three matters on the basis of the parties’
written submissions.






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[134] The ANMF’s proposal to vary the classification definitions in Schedule A is supported 
by the HSU and the Private Hospital Industry Employer Associations.163 The ACE submitted 
(on 21 August 2015) no more than that the changes to the “Nursing Assistant” definition are 
substantive and they should be referred to a separately constituted Full Bench.164 No 
submissions in opposition to the merits of the changes have been received. We are satisfied 
that the variations should be made to the exposure draft. We consider that they simply update 
the definitions to reflect the current nomenclature and regulations applicable to the nursing 
profession. 

[135] The ANMF submits that the Schedule B—Summary of Hourly Rates does not include 
tables dealing with all situations - for example it does not specifically deal with the situation 
where casuals perform overtime. We do not consider that there are any other issues which it is 
necessary to consider including in the tables other than perhaps the issue of the rates for 
casual overtime. The issue of whether or not casuals receive the casual loading in addition to 
the overtime penalty in this Award is contentious and has been referred to the Casual and 
Part-time Employment Full Bench. In these circumstances we do not propose to make any 
variation to the tables in Schedule B at this time.

[136] In relation to the issue concerning clause 6.4(d) raised by the ACE, the exposure draft 
currently provides as follows:

“6.4(d) A casual employee will be paid shift allowances calculated on the minimum rate 
of pay applicable to their classification and pay point, excluding the casual loading 
with the casual loading component then added to the penalty rate of pay.”

[137] The ACE on 28 January 2015 submitted that the provision should be made more 
specific about how the rate is calculated for weekend work.165 They proposed the following: 

“6.4(d) A casual employee will be paid shift penalties and Saturday and Sunday 
penalties calculated on the minimum rate of pay excluding the casual loading with the 
casual loading component then added to the penalty rate of pay.”166

[138] The ANMF supports the clarification but proposes the following wording to take 
account of the changes made to the exposure draft since early 2015:

“6.4(d) A casual employee will be paid shift allowances and Saturday and Sunday rates 
calculated on the minimum rate of pay applicable to their classification and pay point, 
excluding the casual loading with the casual loading component then added to the 
penalty rate of pay.”167

[139] There is no opposition to the proposal by the ACE that the provision should clarify the 
rates on weekends and we consider it appropriate. We propose to adopt the drafting of the 
provision suggested by ANMF and this variation will be reflected in the exposure draft. 

[140] The following outstanding matters are likely to require the consideration of detailed 
submissions and evidence and consequently they will be referred to a separately constituted 
Full Bench: 








[2016] FWCFB 7254 

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 The ACE propose to amend clause 8.2(e) to allow for greater flexibility in rostering 
by adding the words “unless the employee otherwise agrees”.168 This would enable 
rosters to be altered with less than seven days’ notice. 

 The employer organisations seek a variation to clause 9.1 to include a facilitative 
provision to extend the period prior to a break from 5 hours to 6 hours. 

 The ANMF is seeking that clause 9.1(a) be varied to specify that meal breaks must 
be taken between the fourth and the sixth hour after beginning work unless 
otherwise agreed by the majority and to permit the employer and the employee to 
agree to forfeit the meal break where shifts are less than six hours.169

 The ANMF is seeking the insertion of a new clause 27.1(c) to provide for 
compensation while being effectively on call during a meal break.170

 The ANMF is also seeking to extend the rest break between ordinary shifts in 
clause 9.3 and to introduce a penalty for breach.171

 The ACE are seeking the insertion in clause 11.3(b) of a “remote communication 
allowance” for aged care employees where an employee provides advice or 
assistance remotely by telephone or other device.172

 The ANMF proposes the insertion in clause 11 of an in-charge allowance for 
registered nurses and a leading hand allowance for enrolled nurses and nursing 
assistants.173

 The HSU proposes a variation to clause 14.2 to ensure that shift allowances are 
payable on weekends.174

 The HSU175 and the ANMF176 seek variations to the overtime clause 15.1 to clarify 
that all work in excess of rostered hours is overtime and that each period of 
overtime stands alone. 

 The ANMF177 and the HSU178 seek a variation to clauses 15.5 and 15.6 to confirm 
that these provisions apply to situations where nurses are recalled to perform work 
remotely. 

2.11 Passenger Vehicle Transportation Award 2010

[141] On 18 December 2014 an exposure draft for the Passenger Vehicle Transportation 
Award 2010 (PVT Award) was published, and a summary of the submissions received in 
relation to it was published on 14 October 2015. A conference of interested parties was 
conducted on 28 October 2015, which was the subject of a report published on 30 November 
2015. That report set out a number of alterations to the exposure draft of a technical or 
drafting nature about which the parties agreed. It also identified five changes proposed by 
various parties which were not agreed which the parties sought to be referred to a separate 
Full Bench for determination, and the following three issues which had been referred to other 
Full Benches:






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 minimum engagement for casuals (to be dealt with by the Casual and Part-time 
Employment Full Bench); 

 payment of annual leave loading on termination (to be dealt with by the Annual 
Leave Full Bench); and

 claimed accident pay provisions (to be dealt with by the Transitional Provisions 
Full Bench).

[142] On 2 December 2015 a revised exposure draft was published incorporating the agreed 
changes referred to in the 30 November 2015 report.

[143] A further conference was conducted on 3 February 2016, and a report about this was 
published on 19 February 2016. That report recorded that the parties identified some defects 
in the 2 December 2015 exposure draft which required rectification, and that the fourth of the 
five proposed changes identified in the 30 November 2015 report (concerning the living away 
from home allowance in clause 11.3(d)(i) of the exposure draft) was now agreed. In relation 
to the four remaining issues, the Ai Group179 in correspondence dated 7 July 2016 indicated 
that it considered that one change raised by it concerning clause 8.1(a) of the exposure draft 
was a technical issue which could be dealt with by the current Full Bench, and the remaining 
three issues should be referred to a separate Full Bench. At the directions hearing in relation 
to the Group 2 awards which occurred on 7 July 2016, the Australian Public Transport 
Industrial Association (APTIA) submitted that two of those other three issues could be dealt 
with simply by way of submissions (presumably before this Full Bench), but the Transport 
Workers’ Union of Australia (TWU) indicated that it wished to call evidence about those 
matters.180

[144] A further conference was conducted on 28 July 2016, and was the subject of a report
published on 11 August 2016. That report indicated that it was agreed that an error in clause 
13.2 (concerning the casual public holiday rate) should be corrected. It also confirmed that the 
issue concerning clause 8.1(a) was a technical/drafting issue which remained in dispute.

[145] Consistent with the parties’ joint position, Ai Group’s proposed change to clause 
8.1(a) will be dealt with in this decision.181 Clause 8.1 of the exposure draft published on 
18 December 2014 provided:

“The ordinary hours of work for a full-time employee will be an average of 38 hours per 
week.”

[146] The revised exposure draft published on 2 December 2015 removed the words “for a 
full-time employee” consistent with what the parties had agreed at the 28 October 2015 
conference. Ai Group proposes that the provision should be altered further to read:

“The ordinary hours of work for a full-time employee will be an average of up to 
38 hours per week.”182

[147] Ai Group submitted that the current clause 21.1 of the PVT Award is not confined to 
full-time employees, and applies to full-time employees and casual employees. In addition to 
the agreed deletion of the reference to full-time employees, it submitted that the words “up to”
should be inserted to make it clear that casual employees were not required to work 38 hours 
per week.183






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[148] The TWU submitted in response that clause 8 of the exposure draft deals with hours of 
work and rostering for a full-time employee only, and the proposed variation was therefore 
not appropriate. It proposed that the position of casual employees be dealt with by a provision 
which stated: “The ordinary hours of work for a casual employee will be up to 38 hours per 
week”.184

[149] We consider that clauses 21.1 and 21.2 of the PVT Award as it currently stands, 
although they do not mention full-time employees, are clearly constructed in relation to full-
time employment and are not intended to have application to part-time or casual employment. 
These provisions are reflected in clause 8.1(a) to (c) of the exposure drafts. The exposure draft 
of 18 December 2014 sought to reflect the current positions but to clarify the position by 
adding an express reference to full-time employees. We consider the agreement of the parties 
to remove this reference was a mistake.

[150] Ai Group’s proposed variation should therefore not be adopted, but we consider that 
clause 8.1 should be modified to clarify the position with respect to part-time and casual 
employees. It is also necessary to ensure the PVT Award complies with s.147 of the FW Act, 
which provides:

“147 Ordinary hours of work

A modern award must include terms specifying, or providing for the determination of, 
the ordinary hours of work for each classification of employee covered by the award 
and each type of employment permitted by the award.

Note: An employee’s ordinary hours of work are significant in determining the 
employee’s entitlements under the National Employment Standards.”

[151] Accordingly we propose that clause 8.1 of the exposure draft be amended as follows:

“8.1 Ordinary hours and roster cycles

(a) The ordinary hours of work for a full-time employee will be an average of 
38 hours per week. 

(b) The ordinary hours of work for a full-time employee may be worked on any 
day of the week averaged as follows:

(i) 38 hours on up to five days within a work cycle not exceeding seven 
consecutive days; 

(ii) 76 hours on up to 10 days within a work cycle not exceeding 
14 consecutive days; 

(iii) 114 hours on up to 15 days within a work cycle not exceeding 
21 consecutive days; or 

(iv) 152 hours on up to 20 days within a work cycle not exceeding 
28 consecutive days. 








[2016] FWCFB 7254 

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(c) Ordinary hours for a full-time employee may be worked by: 

(i) providing for one accrued rostered day off (eight hours) and 19 days of 
work over a continuous four week period. Provided that, by agreement 
between employer and employee, accrued rostered days off may be 
accumulated to a maximum of 10 such days over a 40 week period; or 

(ii) in accordance with clause 8.1(b).

(d) The ordinary hours of work for a part-time employee shall be determined in 
accordance with clause 6.4(a)(i), (b), (c), (d) and (e).

(e) The ordinary hours of work for a casual employee will be up to 38 hours per 
week.

(f) Ordinary hours, exclusive of meal breaks, must not exceed 10 hours on any one 
day.”

[152] The above variation will be incorporated in a further exposure draft of the Award to be 
published in due course. Interested parties will then have the opportunity if they wish to make 
any further comment about it. 

[153] We adopt the other changes agreed to by the parties, and they will also be incorporated 
into a further exposure draft to be published in due course. The three remaining proposed 
alterations which are not agreed shall be referred to a separate Full Bench will be constituted 
to deal with all outstanding issues arising from the five road transport modern awards (Road 
Transport Awards Full Bench). The issues are as follows:

 the APTIA claim for the award flexibility clause to be modified to specify that it 
applies to ‘hours of work’ and ‘breaks’;185

 the TWU claim for a span of hours provision to be introduced;186 and

 issues concerning the provisions in the PVT Award concerning two-driver 
operations.

2.12 Pharmacy Industry Award 2010

[154] As outlined in the Statement issued on 30 September 2015187, the Pharmacy Industry 
Award 2010 (the Pharmacy Award) is being reviewed in a separate process to incorporate a 
‘Plain English modern awards pilot’. Statements issued on 22 September 2015188 and 
29 October 2015189 set out the process for that Pilot which will produce a plain language 
exposure draft based on the Pharmacy Award. The report on the plain language exposure draft 
including redrafted provisions was published on 21 April 2016 and a subsequent statement 
regarding the plain language process was issued on 11 August 2016190 which confirmed the 
timetable for dealing with the drafting issues in this award. A Statement issued on 15 July 
2016191 also outlined how the substantive claims in this award are to be dealt with. 

[155] The plain language exposure draft, along with any other issues relating to the review 
of the Pharmacy Award, are being considered by a separate Full Bench and have not been the 
subject of the general directions and proceedings for the remainder of the Group 2 awards. 






https://www.fwc.gov.au/documents/documents/modern_awards/award/ma000012/default.htm
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2.13 Racing Industry Ground Maintenance Award 2010

[156] An exposure draft based on the Racing Industry Ground Maintenance Award 2010
was initially published on 15 December 2014 and following this, submissions were received 
from Ai Group192, the AWU193 and Business SA194, primarily relating to technical and 
drafting issues. After the hearing on 7 October 2015, a revised summary of submissions was 
published identifying those matters that had been resolved by the Full Bench decisions 
discussed earlier and those withdrawn by the parties. The remaining issues were summarised 
as follows:

(i) Part-time employees – minor wording issue agreed between parties

(ii) Various issues re Casual employees

(iii) Ordinary hours – minor wording issue agreed between parties

(iv) Breaks – minor wording issue agreed between parties

(v) Late payment of wages – correction to typographical error not opposed by any
party

(vi) Loss of clothing allowance – method of adjustment

(vii) Penalty rates – wording issue agreed between parties

(viii) Overtime – wording issue agreed between parties

(ix) Summary of hourly rates – correction to error in footnote agreed between 
parties; AWU sought inclusion of additional rates in the summary

(x) Summary of allowances – correction to typographical error not opposed by any 
party

[157] During the conference on 27 October 2015, the parties discussed an amended exposure 
draft and draft report and made further progress in narrowing the issues in contention. 
Following the conference a further amended exposure draft and a revised draft report were 
published and parties were provided 14 days to file further written submissions on the revised 
draft report and an amended exposure draft that included additional schedules of rates of pay 
that were agreed by the parties. 

[158] In a submission of 9 November 2015, Ai Group suggested a change to clause 8.1 
clarifying that the hours of work are up to 38 per week.195 This change was made to the 
further revised exposure draft published on 1 December 2015. Ai Group also proposed 
changes to the column headings in schedule B to replace the term ‘ordinary hourly rate’ with 
‘minimum hourly rate’.196 As this award contains a tool allowance at clause 11.3(e) that is 
payable for all purposes, consistent with the July 2015 decision197, the term ‘ordinary hourly 
rate’ will be retained to clarify that these payments must include any all purpose allowance to 
which an employee is entitled.






http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/AM2014210-Exposure-draft-further-revised-011215.pdf
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/AM2014210-revised-draft-report-301015.pdf
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/AM2014210-Exposure-draft-racing-industry-further-revised-301015.pdf
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/AM2014210-draft-report-FWC-211015.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/racing-industry-sub-summary-revised-141015.pdf
https://www.fwc.gov.au/documents/documents/modern_awards/award/ma000014/default.htm
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[2016] FWCFB 7254 

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[159] Apart from minor typographical errors identified by Ai Group,198 the AWU199 and 
AFEI200 in their submissions, that were corrected in a further revised exposure draft, there 
were no subsequent submissions received in relation to this award and all issues have been 
resolved.

2.14 Road Transport (Long Distance Operations) Award 2010

[160] An exposure draft based on the Road Transport (Long Distance Operations) Award
2010 was initially published on 18 December 2014 and submissions in response to the 
exposure draft were received from the Australian Road Transport Industrial Organisation201, 
the Australian Workers’ Union202, Australian Business Industrial and NSW Business 
Chamber Ltd203, Business SA204, Australian Industry Group205 and the Transport Workers’
Union of Australia206. A summary of the parties’ submissions was published on 27 October 
2015. Following a conference with interested parties before Senior Deputy President 
Hamberger held on October 2015, a report to the Full Bench was published on 30 November 
2015. That report identified three substantive issues which have been referred to other Full 
Benches:

the insertion of a new subclause on part-time employment (to be dealt with by Part-time 
Employment Full Bench);

 the amendment of clause 14.2(c) to specify that leave loading is payable upon 
termination (to be dealt with by Annual Leave Full Bench); and

 the insertion of provisions on accident pay (to be dealt with by the Transitional 
Provisions Full Bench).

[161] The report also identified a number of other proposed alterations to the exposure draft 
which were supported by the parties, and nine proposed changes of a substantive nature which 
were not agreed and which the parties requested be referred to a separate Full Bench for 
determination. On 16 December 2015 a revised exposure draft prepared by the Ai Group 
which incorporated the agreed proposed changes was published.
[162]
A further conference with interested parties was conducted by Senior Deputy President 
Hamberger on 3 February 2016, and a further report was published on 19 February 2016. In 
relation to the agreed changes incorporated in the revised exposure draft published on 16 
December 2015, there were a small number of further changes agreed which are set out in the 
report. Additionally, agreement was reached in relation to two of the nine substantive 
proposed changes that remained in dispute, leaving seven substantive issues to be resolved. 
One of these issues, which involved a claim by the AWU, was subsequently withdrawn (at the 
directions hearing in relation to the Group 2 awards on 7 July 2016).207

[163] The changes agreed by the parties will be adopted and will be incorporated into a 
further exposure draft to be published. The following six substantive issues, which all involve 
claims by the TWU, will be referred to the Road Transport Awards Full Bench: 

 amend the definition of ‘long distance operation’;208

 include a provision in clause 11.5(a)(iii) stating that the fatigue management plan is 
to be provided to the employee;209






https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014208andors-reporttothefb.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014211-exposure-draft-aig-161215.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014211-report-301115.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/road-transport-ldo-sub-summary-revised-271015.pdf
https://www.fwc.gov.au/documents/documents/modern_awards/award/ma000039/default.htm
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[2016] FWCFB 7254 

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 add a provision to clause 12.1(c)(i) specifying a minimum payment, and that an 
employee is only to perform work under one award per day; 

 add a new clause allowing for payment where an employee is required to travel as a 
passenger; 

 add a new clause specifying the rates for employees engaged in ‘two up’ driving; 
and 

 add a new clause providing for payment for drivers spending excessive amounts of 
time waiting during loading or unloading.

2.15 Road Transport and Distribution Award 2010

[164] An exposure draft based on the Road Transport and Distribution Award 2010 (the 
RTD award) was published on 18 December 2014, and an amended version published on 22 
December 2014. Various submissions and correspondence were received from interested 
parties in relation to this exposure draft, and a summary of these was published on 27 October 
2015. On 30 October 2015 a conference of interested parties was conducted by Senior Deputy 
President Hamberger, and a report to the Full Bench of the outcome was published on 30 
November 2015. That report identified a large number of changes of a technical nature which 
were agreed. It also identified eleven changes which were not agreed and which the parties 
requested be referred to a separate Full Bench for determination.

[165] On 15 December 2015 a revised exposure draft prepared by the Ai Group which 
incorporated the agreed changes was published. A further conference of interested parties was 
conducted by Senior Deputy President Hamberger on 3 February 2016, and a report to the 
Full Bench concerning this conference was published on 19 February 2016. There were some 
further changes of a technical nature which were agreed arising out of the revised exposure 
draft. In relation to the previously disputed changes, one of the matters identified in the 
30 November 2015 report was no longer pressed and agreement was reached about two of 
them, but two additional substantive matters were identified as being in dispute (making a 
total of ten disputed matters).

[166] Correspondence from the Ai Group dated 7 July 2016 identified seven of the disputed 
matters as substantive in nature, and the rest as technical or drafting matters which could be 
determined by this Full Bench.210 There was a further conference of the interested parties 
concerning the technical/drafting matters on 28 July 2016, and a report concerning the 
conference was published on 11 August 2016. That report identified one of the disputed 
technical matters as no longer being pressed. That leaves two technical/drafting issues to be 
resolved by this Full Bench.

[167] The first concerns clause 8.1(a) of the amended exposure draft published on 
22 December 2014, which relevantly provides:

“8.1 The ordinary hours of work for a full-time employee are an average of 38 per week 
to be worked on one of the following bases: 
…”






https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014208andors-report-110816.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014208andors-reporttothefb.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014208andors-reporttothefb.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014212-exposure-draft-aig-151215.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014212-report-301115.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/road-transport-distibution-sub-summary-revised-271015.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/exposure-draft-road-transport-distribution-amended.pdf
https://www.fwc.gov.au/documents/documents/modern_awards/award/ma000038/default.htm
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[2016] FWCFB 7254 

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[168] The Ai Group proposes that the provision be amended to read:

“8.1 The ordinary hours of work for a full-time employee are an average of up to 38 per 
week to be worked on one of the following bases: 
…”

[169] The Ai Group submission on the point was essentially the same as that in relation to 
the hours clause in PVT Award, namely:

 the current hours clause in the award (clause 22.1) is not confined to full-time 
employees, and applies to part-time and casual employees;

 the drafting of clause 8.1 of the exposure draft potentially resulted in a breach of 
s.147, since the exposure draft did not include a term specifying or providing for 
the determination of ordinary hours of work for part-time and casual employees;

 the deletion of the reference to “a full-time employee” and the insertion of the 
words “up to” would ensure the provision’s application to part-time and casual 
employees.211

[170] In response, the TWU submitted (as with the PVT Award) that the change proposed 
should not be made because it was clear that the existing clause 22.1 only applied to full-time 
employees. It similarly proposed that the problem raised by the Ai Group be dealt with by the 
addition of a provision (in the casual employment provision in clause 6.5) stating: “The 
ordinary hours of work for a casual employee will be up to 38 hours per week”.212

[171] We do not accept that the current hours provision in clause 22.1 of the award applies 
to part-time and casual employees, since it refers to the ordinary hours of work being “an 
average of 38 per week” and provides for roster cycles over which such average hours can be 
worked. Clause 8.1 of the exposure draft clarifies rather than changes this. However it may be 
accepted that the exposure draft, like the current award, does not make clear what the ordinary 
weekly hours of work are for casual employees (although the maximum daily ordinary hours 
for all categories of employees are set out in clause 8.3 of the exposure draft. To resolve this 
issue, we propose that the following subclauses be added to clause 8.1 (with the subsequent 
subclause to be re-numbered):

“8.2 The ordinary hours of work for a part-time employee shall be determined in 
accordance with clause 6.4(a)(i), (b) and (c).

8.3 The ordinary hours of work for a casual employee will be up to 38 hours per 
week.”

[172] The above variation will be incorporated in a further exposure draft of the Award to be 
published in due course. Interested parties will then have the opportunity if they wish to make 
any further comment about it. 

[173] The second issue concerns the calculation of the minimum hourly wage rates for oil 
distribution workers contained in clause 12.2 of the exposure draft. The Ai Group submitted 
that the hourly rate for such workers are higher in the exposure draft than that currently 
provided for in clause 15.2 of the award. This issue stems from what divisor should be utilised 
when calculating the hourly rate for oil distribution workers who ordinarily work a 35 hour 








[2016] FWCFB 7254 

37

week (clause 23.2). The Ai Group argued that it should not simply be assumed that the hourly 
rate of oil distribution workers can determined by dividing the standard weekly rate by 35 and 
it suggested that application of various clauses of the award to oil distribution workers 
requires further consideration. 

[174] At the hearing on 7 July 2016, the TWU sought leave to file further written 
submissions in respect of this issue and the Vice President directed that any submissions were 
to be filed within 21 days.213 Submissions were belatedly filed by the TWU on 2 September 
2016. In those submissions the TWU contended that the current schedule of pay rates for oil 
distribution workers are correctly based on a 35-hour week.214 This therefore remains an issue 
in dispute.

[175] The changes previously agreed by the parties will be made, and a further revised 
exposure draft will be published reflecting these changes. The eight outstanding disputed 
substantive matters will be referred to the Road Transport Awards Full Bench. They are:

 the hourly wage rate rates for oil distribution workers;215

 a claim by the Ai Group for the introduction of an ‘early morning shift’ clause;216

 a claim by the Ai Group for the introduction of additional limitations on 
circumstances where the meal allowance is paid;217

 amendments to clause 12.6 proposed by the Ai Group to introduce limitations to 
the application of the higher duties provision;218

 amendments to the classification definitions sought by the TWU to recognise 
advances in heavy vehicle development and manufacturing; 

 an amendment to the definition of ‘road transport and distribution industry’
proposed by the TWU which would affect the coverage of the award;219

 a claim by the TWU for the addition of a definition of ‘driver’ which would affect 
the coverage of the award;220 and

 a claim by the Ai Group for the introduction of an additional limitation on 
circumstances in which an employee is entitled to a meal break.221

2.16 Seafood Processing Award 2010

[176] An exposure draft for this Award was published on 8 December 2014, and 
submissions were subsequently received from interested parties. A conference of interested 
parties before Deputy President Bull was held on 19 November 2015. A report to the Full 
Bench (the report) outlining the outcome of that conference was published on 8 December 
2015. A large number of variations to the exposure draft of a technical/drafting nature were 
the subject of agreement at that conference. A revised exposure draft incorporating those 
agreed arising from the conference was published on 8 December 2015. The issues remaining 
outstanding were those identified as Issues (65) and (66) in the Report.






http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/Exposure-draft-seafood-processing-revised.pdf
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/AM2014213-report-081215.pdf
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/AM2014213-report-081215.pdf
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[2016] FWCFB 7254 

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[177] On 14 December 2015, directions were issued to parties to provide an update as to the 
status of the discussions including what had been agreed and any outstanding issues. The 
following submissions were subsequently received:

(i) AMWU (28 January 2015)
(ii) AWU (18 February 2015)
(iii) Ai Group (4 March 2015)

[178] Following further discussions facilitated by the Commission there remains one 
outstanding issue in relation to the Seafood award, namely a variation proposed by the 
AMWU in relation to the ability (by agreement) to alter the specified spread of hours for day 
workers and span of hours for shiftworkers.222 The AMWU seeks to place a restriction on the 
ability of a majority of employees under the existing Award provisions to agree to alter the 
spread of hours. The AMWU’s proposed change would continue to allow the spread/span of 
hours to be changed by agreement but not the total duration of the spread or span.

[179] The AWU supports the AMWU’s variations.223 The Ai Group opposes the variations,
arguing that the variations amount to a substantive claim and is inconsistent with a number of 
aspects of the modern award objective in s.134(1) of the FW Act.224

[180] In relation to day workers, clause 8.2(a) of the exposure draft provides that the 
ordinary hours of work for a day worker are to be worked between 6.00 am and 6.00 pm 
Monday to Saturday. Under clause 8.6 the arrangement of the ordinary hours of work is 
reached via agreement with the employer and majority of employees, with ordinary hours in 
any one day being between 8 and 12 hours 

[181] Clause 8.2(c) allows for variation of the spread of hours for day workers as follows:

“The spread of hours may be altered by up to one hour at either end of the spread, by 
agreement between an employer and the majority of employees concerned or, in 
appropriate circumstances, between the employer and an individual employee.”

[182] The AMWU submits that clause 8.2(c) should be clarified to highlight that while the 
spread of hours can be changed, its duration cannot, by inserting the words “but may not be
altered to increase the spread of hours beyond 12 hours a day”.225 The clause would read:

“The spread of hours may be altered by up to one hour at either end of the spread but 
may not be altered to increase the spread of hours beyond 12 hours per day, by 
agreement between an employer and the majority of employees concerned or, in 
appropriate circumstances, between the employer and an individual employee.”
[underlining added]

[183] In relation to shiftworkers, there is no ‘spread of hours’ clause in which their ordinary 
hours are to be worked. However, clause 13.3 of the exposure draft defines the respective 
spans of hours in which afternoon and day shifts must finish. Clause 13.4 then provides that 
by agreement the employer and a majority of employees may agree to alter the span of hours 
over which shifts may be worked by up to one hour at either end of the span: 






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“13.4 By agreement between the employer and the majority of employees concerned or 
in appropriate cases an individual employee, the span of hours over which shifts may 
be worked may be altered by up to one hour at either end of the span.”

[184] The AMWU submits that clause 13.4 should be clarified to highlight that while the 
span of hours can be changed, its duration cannot, and proposes the additional wording of 
“but not both” at the end of the clause.226 The clause would read:

“By agreement between the employer and the majority of employees concerned or in 
appropriate cases an individual employee, the span of hours over which shifts may be 
worked may be altered by up to one hour at either end of the span, but not both.”
[underlining added]

[185] Ai Group opposes both variations. It submits that they are substantive variations to the 
Award rather than ones which seek to ‘clarify’ the operation of the provision, and that the 
terms of the Award as it currently stands do not preclude the extension of the span of hours at 
both ends.227

[186] Issues dealing with the spread or span of hours have been advanced by the AMWU in 
other awards under review, with Ai Group opposing the claims. 

[187] The Hydrocarbons Industry (Upstream) Award 2010 provides for a spread of hours 
between 6.00 am and 6.00 pm in which the ordinary hours of up to 12 hours can be worked. 
That award allows agreement with the employer and employees to alter the spread of hours. 
The AMWU sought to insert a restriction of one hour at each end of the span and that there be 
no more than 12 ordinary hours per day. In the October 2015 Decision, the Full Bench 
rejected the proposed change of limiting any alteration to one hour at one end only of the span 
on the basis that it would be a change from the existing award with no demonstrated necessity 
for the change. The Full Bench also held there was no need to limit a variation to the ordinary 
hours worked as the clause did not allow for a change in the ordinary hours worked, as it was 
concerned with the spread of hours only.228

[188] The Full Bench also dealt with a claim by the AMWU to relating to the 
Pharmaceutical Industry Award 2010. That award currently allows the spread of hours to be 
altered by up to one hour at either end of the spread by agreement between the employer and a 
majority of employees. The AMWU submitted that the clause was ambiguous as the word 
‘either’ can be interpreted as alteration at one end or at both ends. The AMWU proposed to 
insert the words ‘subject to maintaining a 9.5 hour spread’ which are the existing spread of 
hours. Ai Group submitted that this issue may arise in many awards and therefore have 
implications in those awards. On this basis the Full Bench stated in the October 2015 
decision:

“Given Ai Group’s submission the determination of this issue (spread of hours) may 
have implications for other awards. Accordingly we do not propose to determine this 
issue at this time. The issue will be reconsidered at the conclusion of the Award stage 
of the Review, together with any other award provisions where a similar issue has 
arisen.”229

[189] We consider that the issue raised by the AMWU’s proposal here is the same as that 
which arose in relation to the Pharmaceutical Industry Award 2010. It should therefore 








[2016] FWCFB 7254 

40

likewise be dealt with at the conclusion of the Award stage of the Review, together with the 
Pharmaceutical Industry Award 2010 and any other award provisions where a similar issue 
has arisen. This matter can be distinguished from the decision concerning the Hydrocarbons 
Industry (Upstream) Award 2010, where the existing provision did not contain the words ‘at 
either end’. 

[190] We would simply observe at this stage that the word “either” as used in clause 8.2(c) 
and 13.4 is ambiguous. According to its dictionary definition, it may mean one or both of two 
possibilities, depending on the context. For example the definition in the Macquarie on-line 
dictionary is as follows:

“adjective 1. one or the other of two: you may sit at either end of the table. 2. each of 
the two; the one and the other: there are trees on either side of the river. –pronoun 3. 
one or the other; not both: take either; either is correct.”

[191] Interested parties should address the issue of ambiguity when the matter arises for 
final consideration at the conclusion of the Award stage of the Review. 

2.17 Storage Services and Wholesale Award 2010

[192] An exposure draft based on the Storage Services and Wholesale Award was published 
by the Commission on 8 December 2014, and submissions in respect of the draft were 
received from interested parties. A summary of submissions document was subsequently 
published on 17 March 2015 and revised on 30 September 2015. At the hearing on 7 October 
2015, the Ai Group had undertaken to file in the Commission a revised exposure draft and 
summary of submissions based on discussions between the interested parties. These 
documents were received, and were published on 2 November 2015.230 These documents in 
particular incorporated the changes agreed between the Ai Group, the Shop, Distributive and 
Allied Employees Association (SDA), the AWU, the National Union of Workers (NUW), 
ABI and NSW Business Chamber, the AFEI and Business SA. 

[193] On 19 November 2015, Deputy President Bull conducted a conference in respect of 
any outstanding issues in the revised exposure draft and the outcomes of which was published 
in a report to the Full Bench on 7 December 2015. The Deputy President facilitated a further 
conference on 5 January 2016 at the request of the Ai Group, the SDA and the AWU to 
discuss consent resolutions to substantive and outstanding issues and an updated report to the 
Full Bench was subsequently published on 15 March 2016. The updated report also contained 
a direction which provided parties with a further opportunity to file written submissions in 
relation to the outstanding issues by 22 January 2016.

[194] In correspondence dated 15 March 2016, the Deputy President directed parties to 
provide a final update as to the status and outcome of the discussions initially by 22 March 
2016 but an extension was granted until 8 April 2016, in respect of the six outstanding issues: 

(1) the definition of full-time employees;

(2) the application of the higher duties allowances, 

(3) the ‘appropriate rate’ to be used for the purpose of calculating overtime and 
penalty rates for employees performing call-back work;






https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014214-dir-150316.pdf
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https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014214-report-updated-150316.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014-report-071215.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014214-sub-aig-021115.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/storage-sub-summary.pdf
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[2016] FWCFB 7254 

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(4) the definition of Wholesale employee level 4;

(5) the summary of hourly rates of pay for Saturdays and Sundays; and 

(6) the insertion of an annualised salary provision in the award. 

[195] The Ai Group on 19 March 2016 requested that in respect of issues (1), (2) and (4) of 
the outstanding issues, it be given an opportunity to file comprehensive written submissions 
and to respond to the submissions filed by the AWU on 22 January 2016.231 The Deputy 
President issued directions on 24 June 2016 for the filing of any final submissions in respect 
of the outstanding issues. The Ai Group withdrew its claim in respect of issue (6) in 
submissions dated 8 April 2016, and accordingly that is no longer a live issue.232 In relation to 
the third issue (which was raised by the AWU), this has now been resolved by agreement on 
the basis that there should be no change to the existing provisions.233

[196] A number of non-controversial technical and drafting issues were agreed between the 
parties including changes to reflect recent Full Bench decisions. A number of these changes 
were agreed to on the basis of providing consistency and to remove ambiguity. The agreed 
changes identified in the 7 December 2015 report to the Full Bench have been reflected in the 
latest exposure draft of 19 April 2016. Save for the issue below in relation to the close down 
provision, we will adopt the agreed changes between the parties as outlined in the 15 March 
2016 and an updated exposure draft incorporating these changes will be issued in due course. 

[197] While the parties agreed to replace the close down provision in the exposure draft with 
the wording in the current award, we have decided that clause 17.4(c) (which replicates clause 
26.6(c) in the current award) should be deleted. The provision provides:

“the next 12 monthly qualifying period of employment for every such employee will 
commence from the date of closing”.

[198] Such a clause is inconsistent with the NES.234 Section 87(2) of the FW Act provides 
that annual leave accrues progressively rather than on an annual basis so a provision referring 
to a ‘qualifying period’ for an annual leave entitlement is misleading and should be deleted.

[199] In relation to the fourth outstanding issue identified above, the Ai Group proposed an 
amendment to clauses A.7 and A.8 contained in Schedule A of the 19 April 2016 exposure 
draft. The proposed variations relate to Wholesale Level 3 and Level 4 employee 
classifications. The Ai Group submitted that the classifications should be reworded to clarify 
employees who are/are not covered by these classifications. The Ai Group, the Unions (SDA, 
AWU and NUW), ABI and the NSW Business Chamber have reached an agreement that the 
classification definitions for ‘Wholesale Employee Level 3’ and ‘Wholesale Employee 
Level 4’ be varied as proposed by Ai Group.235 The Ai Group variation will be adopted and 
included in the updated exposure to draft. 

[200] In relation to the first issue, in joint submissions filed by the AWU, the SDA and the 
NUW (the Unions) on 22 January 2016, it was submitted that the definition of a ‘Full-time 
employee’ contained in clause 11.2 of the current Storage Services award and replicated in the 
exposure draft at clause 6.2 is not compliant with s.147 of the FW Act as it fails to specify the 
ordinary hours of work for full-time employee.236 The AWU proposed that the current 






https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/exposure-draft-storage-services-revised-190416.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014214-dirs-240616.pdf
https://www.fwc.gov.au/awards-and-agreements/modern-award-reviews/4-yearly-review/award-stage/award-review-documents/MA000084?m=AM2014/214


[2016] FWCFB 7254 

42

definition should be amended to read ‘A full-time employee is an employee who is engaged to 
work an average of 38 ordinary hours per week’.237 At the conference of 5 January 2016 the 
Ai Group proposed that a consent position could be reached if the words ‘and paid at the 
weekly wage as per clause 10’ was to be inserted into the AWU’s proposed definition. The Ai 
Group stated that the AWU’s proposal may give rise to unintended consequences as the 
Storage Services award in its current form does not require full-time employees to work any 
particular number of hours.238 The AWU submitted that the additional words are not 
necessary.239

[201] It should also be noted that the exposure draft at clause 6.3 makes reference to the 
hours worked by a part-time employee by providing that part-time employees work less than 
full-time hours of 38 hours per week, hence ipso facto full-time employees work 38 hours a 
week. Additionally, the ordinary hours of work referred to at clause 8.1 refer to an average of 
38 hours per week averaged over 4 weeks. Accordingly, the definition of a full-time employee 
shall be amended to read ‘A full-time employee is one engaged by the week to work an 
average of 38 ordinary hours averaged over 4 weeks’. This amendment reflects the existing 
provision of the Storage Services award and thus does not require cross-referencing within the 
award to ascertain the hours a full-time employee works. 

[202] In relation to the second issue, the Award as it currently stands provides for a ‘Higher 
Duties Allowance’ at clause 19 and at clause 13 of the exposure draft which applies to 
‘weekly employees’. The Unions submitted that the higher duties allowance should apply to 
all employees, including casuals who are not employed on a weekly basis.240 This issue was 
dealt with in the Full Bench decision of 23 October 2015241 at paragraph [160] to [171] in 
respect of the Pharmaceutical Industry Award 2010. The Full Bench stated that an entitlement 
to higher duties allowance should apply to all employees carrying out duties in a higher 
classification. 

[203] The Ai Group cited that difficulties in respect of casual employees will arise if the 
reference to weekly employees is removed from the current higher duties clause as the clause 
is drafted to accommodate employees engaged on a weekly basis as opposed to a casual 
contract. The Ai Group identified that the following clauses are problematic for casual 
employees: 

 Clause 13.1(c) refers to being paid a full day’s pay at the higher rate when over 
three hours are worked in the higher classification. 

 Clause 13.1(c) refers to a full week’s wages being paid at the higher rate when 
20 hours in a week have been worked at the higher classification.

 Clause 13.2 refers to not suffering any reduction in wages during any week for 
performing work at a lower classification for part of the week.242

[204] The Ai Group proposed that the following additional casual specific subclauses should 
be inserted to more fairly address the higher duties issue for casual employees: 

“13.4 If, at the direction of their employer, a casual employee performs the work of two 
or more classifications on the same day or shift, they will be entitled to the hourly rate 
applicable for the classification relevant to the work that the employee spends the 
largest proportion of their time undertaking on the day or shift.








[2016] FWCFB 7254 

43

13.5 A casual employee will only be entitled to receive the hourly rate applicable to a 
particular classification if they have the required skills referred to in the appropriate 
classification and are utilising those skills.”243

[205] The approach undertaken by the Full Bench in the Pharmaceutical Award will be 
applied to this award, being that all employees carrying out duties in a higher classification 
should be paid the higher rate. However due to the issues identified by the Ai Group the 
entitlement for casuals to receive this benefit should be reflected in separate subclauses as the 
existing wording cannot simply be amended by removing the reference to the word “weekly’
without resulting in anomalies for casuals. On this basis, the two proposed Ai Group 
subclauses shall be inserted to provide that casual employees receive higher duties when 
working in a higher classification consistent with the earlier Full Bench decision but also 
allowing for the peculiarities of casual work.

[206] In relation to the fifth issue, the parties which attended the 5 January 2016 conference 
agreed that in Schedule B.1.3 of the exposure draft, there should be a separate column for 
‘Saturday rates’, but the parties were unable to agree on how these rates should be calculated. 
The Ai Group submitted that the Saturday rate should be calculated at 150% of the minimum 
hourly rate for all Saturday work, including overtime.244 The Unions submitted that it should 
be 150% for the first two hours and then 200% for any hours worked thereafter.245

[207] The Storage Services award as it currently stands, at clause 24.5(a)(i) provides that 
‘All time worked on a Saturday must be paid for at the rate of time and one half.’ The 
payment of overtime is prescribed at subclause 24.1 which states that ‘All time worked by an
employee in excess of or outside the ordinary hours of work prescribed by this Award will be 
paid at the rate of time and a half for the first two hours and double time after that.’

[208] The Unions submitted that the Saturday overtime entitlement should be as reflected at 
subclause 24.1, with double time being paid after the first 2 hours. The Unions’ submitted that 
the only circumstance in which time and half can be continuously paid on a Saturday is where 
there is agreement that work performed on a Saturday constitutes an employee’s ‘ordinary 
hours of work’ pursuant to clause 25.3(d).246 In support of its argument the Unions relied on 
the following factors: 

 The Payment for Overtime clause refers to double time after the first two hours 
(clause 24.1).247

 The Payment for Overtime clause refers to all time in excess of or outside ordinary 
hours (unless by agreement) which must include a Saturday as ordinary hours in 
the Award are prescribed as being between Monday and Friday (clauses 22.1 and 
25.3(c)).248

 Shiftworkers can be paid time and one half for work on a Saturday only where 
agreement is reached as per subclause 25.3(d).249

 Overtime for week day work is paid at double time after the first two hours.250

 During the Award Modernisation process both the NUW and the Ai Group agreed 
that overtime on a Saturday was to be paid at double time after the first two 
hours.251








[2016] FWCFB 7254 

44

[209] The Ai Group submitted that the payment of double time after two hours work on a 
Saturday would be a substantial change to the Storage Services Award and it was not simply a 
drafting or technical change. It argued that the specific provision under subclause 24.5 states 
that all time worked on Saturday must be paid at the rate of time and one half prevails based 
on the specific overriding the general principle. This is said to be consistent with the specific 
reference at subclause 24.5(b) which states that all time worked on Sunday is to be paid at 
double time.252

[210] In our view subclause 24.1 Payment for Overtime and subclause 24.5(a) penalty rate 
for Saturday work are intended to provide for two separate entitlements, one, where ordinary 
hours are worked on a Saturday (by agreement) and paid at time and one half, and the other, 
where overtime is worked on a Saturday and double time is paid after the first two hours. If 
this were not the case then an employee working more than 2 hours overtime on a week day 
would receive a greater penalty than when working more than 2 hours on a Saturday.

[211] This outcome is consistent with what was put by the parties in the making of the 
Storage Services 2010 Modern Award (see 22 June 2009 Transcript at PN533, PN562-3).
There was no comment from the Full Bench that it intended to provide a lesser entitlement. 
As such the Storage Services award shall be amended not to provide a superior benefit for 
Saturday overtime but to clarify the entitlement at subclause 24.5(a)(i) as applying to the 
working of ordinary hours. As such, clause 24.5(a)(i) of the exposure draft will be amended to 
read:

“All ordinary time worked on a Saturday must be paid for at the rate of time and one 
half.”

[212] The Ai Group raised the same issue concerning the payment of wages on termination 
in clause 11.3 of the exposure draft as it did in relation to the Graphic Arts, Printing and 
Publishing Award 2010. The Ai Group advised on 26 April 2016 that the same issue arises in 
respect of nine modern awards in total.253 The same conclusion will apply, namely that the 
matter has been referred to the Payment of Wages Full Bench for determination.

[213] The same issue concerning the alteration by agreement of the spread of hours by one 
hour at either end in clause 8.2 of the exposure draft has arisen as it did in relation to the 
Seafood Processing Award 2010 discussed above. The same conclusion shall apply – that is, 
it will be dealt with at the conclusion of the Award stage of the Review, together with the 
Pharmaceutical Industry Award 2010 and any other award provisions where a similar issue 
has arisen. 

2.18 Transport (Cash in Transit) Award 2010

[214] An exposure draft for this award was published on 18 December 2014, and submission 
and correspondence from interested parties were subsequently received. On 30 October 2015 
a conference of interested parties was conducted by Senior Deputy President Hamberger, and 
a report concerning the outcome of this conference was published on 30 November 2015. 
That report identified a range of proposed changes to the exposure draft which were agreed, 
and identified a further six matters raised by various parties which were not agreed. On 
2 December 2015 a further exposure draft incorporating the agreed matters was published. 






https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014215-exposure-draft-cashintransit-revised.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014215-report-301115.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/exposure-draft-cashintransit.pdf
http://www.airc.gov.au/awardmod/databases/storage/Transcripts/220609AM200825.pdf


[2016] FWCFB 7254 

45

[215] A further conference before Senior Deputy President Hamberger occurred on 
3 February 2016, with a further report being published on 19 February 2016. That report 
identified that two of the six non-agreed matters which had earlier been identified were no 
longer pressed. There was an additional conference of interested parties conducted on 28 July 
2016, with a report of that conference being published on 11 August 2016. That report 
identified that, of the four remaining disputed changes, three were no longer pressed, and the 
fourth was the subject of agreement. That agreed change will be adopted in the award to be 
made. There are no further issues of a technical/drafting nature raised by the parties which are 
outstanding. 

2.19 Waste Management Award 2010

[216] An exposure draft for this award was published on 18 December 2014, and was 
subsequently the subject of comment in submissions received from interested parties. A 
summary of those submissions was published on 14 October 2015. On 28 November 2015 a 
conference of interested parties was conducted, and a report concerning that conference was 
published on 30 November 2015. That report set out a number of changes to the exposure 
draft proposed by a number of parties which were the subject of agreement, and also 
identified eight issues of a more substantive nature which were not agreed and required 
determination. It also set out the following three issues which had already been referred to 
other Full Benches:

 the issue of casual conversion (to be dealt with by the Casual and Part-time 
Employment Full Bench);

 the inclusion of accident pay provisions (to be dealt with by the Transitional 
Provisions Full Bench); and

 the issue of part-day public holidays (to be dealt with by the Public Holidays Full 
Bench).

[217] A further exposure draft incorporating the technical/drafting alterations which were 
the subject of agreement was published on 2 December 2015.

[218] There was another conference of interested parties conducted on 3 February 2016, and 
a report about this was published on 19 February 2016. This identified that of the eight 
proposed changes which were not the subject of agreement, one was now the subject of 
agreement and one (concerning call-back) was withdrawn. Additionally, two issues not 
referred to in the 30 November 2015 report were raised, of which one was the subject of 
agreement (alterations to clause 20.5 of the exposure draft concerning payment for work on 
public holidays) and one which was not agreed (concerning payment of overtime to casuals 
under clause 6.5(h) of the exposure draft).

[219] In correspondence from Ai Group published on 7 July 2016, five of the seven 
remaining disputed issues were characterised as substantive in nature, with the remaining two 
being of a technical or drafting nature. That correspondence identified that Ai Group no 
longer opposed the TWU proposal in relation to one of the two issues in the latter category. 
That proposal was to delete from clause 16A.1 of the exposure draft published on 2 December 
2015 (which reflected clause 31.2 of the current award) the words “Subject to any custom 
now prevailing under which employees are required regularly to hold themselves in readiness 
for call-back”.254






https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014208andors-reporttothefb.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014208andors-reporttothefb.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014216-exposure-draft-waste-management-revised.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014216-report-301115.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/waste-sub-summary-revised141015.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/exposure-draft-waste-management.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014208andors-report-110816.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014208andors-reporttothefb.pdf


[2016] FWCFB 7254 

46

[220] The remaining issue in the latter category was the subject of a further conference of 
the parties on 28 July 2016. In the report of this conference published on 11 August 2016, it 
was recorded that it was agreed that clause 6.5(h) of the exposure draft should be deleted and 
replaced with the following:

“In addition to normal overtime rates, a casual employee, while working overtime or 
outside ordinary hours, shall be paid on an hourly basis one thirty-eighth of the 
relevant minimum wage prescribed by the award, plus 10% of the ordinary hourly rate 
for the work performed.”

[221] The proposed wording replicates clause 14.5 of the award as it currently stands. We do 
not accept that this agreed alteration to the exposure draft should be made. The current 
provision is defective because it appears to provide that casual employees working overtime 
or outside ordinary hours must be paid the minimum hourly rate plus 10% in addition to the 
overtime penalty rate prescribed in clause 16.1 (which are 150% of the ordinary hourly rate 
for the first two hours and 200% thereafter). It appears that the difficulty with clause 6.5(h) of 
the exposure draft which the parties seek to correct is that it appears to provide that the 10% is 
to be calculated on the loaded penalty rate and not on the ordinary hourly rate. If so, clause 
6.5(h) of the exposure draft should therefore be amended to provide:

“A casual employee working overtime or outside ordinary hours will be paid the 
overtime rate in clause 16—Overtime and an additional amount of 10% of the ordinary 
hourly rate for the work performed.”

[222] If any interested parties indicate that they disagree with this variation to the exposure 
draft, it will be referred to the Road Transport Awards Full Bench for determination. The 
other agreed changes are accepted to be appropriate and will be incorporated into a further 
exposure draft to be published.

[223] The remaining substantive issues will be referred to the Road Transport Awards Full 
Bench for determination. They are as follows:

 a claim by the TWU to insert a requirement that employers notify employees of 
their classification at the time of engagement;255

 an amendment proposed by the TWU to allow for paid meal breaks when an 
employee is working overtime;256

 a TWU claim for a new meal time provision;257

 a TWU claim for provision of a paid meal break of 20 minutes for shiftworkers;258

 clause 16.4 (clause 30.4 of the current Award) identify that employees recalled to 
work overtime must be paid at overtime rates; and

 include a new provision defining ‘shiftworker’ in a way which would result in an 
entitlement to an additional week’s annual leave.






https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014208andors-report-110816.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014208andors-report-110816.pdf


[2016] FWCFB 7254 

47

3. Next steps

[224] The outstanding issues in the Alpine Resorts Award 2010; Animal Care and 
Veterinary Services Award 2010; Fire Fighting Industry Award 2010; Graphic Arts, Printing 
and Publishing Award 2010; Health Professionals and Support Services Award 2010 and the
Nurses Award 2010; Road Transport (Long Distance Operations) Award 2010, Road 
Transport and Distribution Award 2010 and the Waste Management Award 2010 have been 
referred to various separately constituted Full Benches for determination as earlier specified.

[225] Further revised exposure drafts for each award in Group 2 incorporating the changes 
outlined in this decision and any determinations arising from the Annual leave and Award 
flexibility common issues proceedings will be published in the week commencing 17 October 
2016. 

[226] In respect of the second issue identified at paragraph [81] above in the Fire Fighting 
Industry Award 2010, we intend to determine the issue by way of written submissions only 
and any interested parties are directed to file any further written submissions by 5.00 pm on 
Friday 18 November 2016.

[227] Parties are asked to provide feedback on the revised exposure drafts by 5.00 pm on 
Friday 18 November 2016. Feedback should be submitted in writing to amod@fwc.gov.au. 

[228] The Review is an iterative process and parties will continue to be given further 
opportunities to comment on revised exposure drafts and any further proposals to vary 
provisions in modern awards. The review of each award is not considered complete until the 
final determinations are issued for that award. 

PRESIDENT

Appearances: 

M Harmer for the Australian Ski Areas Association

B Ferguson, G Vaccaro and R Bhatt for the Australian Industry Group.

S Crawford and J Gherjestani for The Australian Workers’ Union.

J Light for the Australian Federation of Employers and Industry.

J Arndt for the Thredbo Chamber of Commerce, Australian Business Industrial and the New 
South Wales Business Chamber.






mailto:amod@fwc.gov.au


[2016] FWCFB 7254 

48

D Tyler, Z McQuillan and K Scott for Australian Business Industrial and the New South 
Wales Business Chamber.

D Astley for the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries 
Union” known as the Australian Manufacturing Workers’ Union (AMWU).

G Kusuma for the New South Wales Farmers’ Association. 

S Crilly for Fairfax Media Limited and its subsidiaries.

C Delaney for the Australian Security Industry Association Ltd.

D Mujkic for the National Union of Workers.

M Galbraith for the Shop, Distributive and Allied Employees Association.

K Muddagouni for the Mount Hotham Resort Management Board.

R Hall-Boman for the Printing Industries Association of Australia.

B Pole for Western Australian Newspapers Limited.

L Svendsen for the Health Services Union of Australia. 

M Robson for United Voice.

M De Vecchis for the Australian Salaried Medical Officers Federation.

G Boyce for the Aged Care Employers.

J Bundara and L Houlihan for the Chiropractors Association of Australia.

A McCarthy for the Australian Nursing and Midwifery Federation.

M Rizzo for the Australian Municipal, Administrative, Clerical and Services Union.

M Anthony for The Association of Professional Engineers, Scientists and Managers, Australia.

E Van Der Linden for the South Australian Chamber of Commerce and Industry trading as 
Business SA.

D Neutze for the Australian Veterinary Association.

L Fisher and L Hepworth for the Private Hospital Industry Employers’ Associations.

W Carr and T Walton for the Transport Workers’ Union of Australia. 

S Maxwell for the Construction, Forestry, Mining and Energy Union.

I MacDonald for the Australian Public Transport Industrial Association.








[2016] FWCFB 7254 

49

M Dunne for the Waste Contractors & Recyclers Association of NSW.

P Ryan for the Australian Road Transport Industrial Organization.

C Gardner for Coles Supermarkets Australia Pty Ltd. 

Hearing details: 

2015. 
Melbourne: (with video links to Sydney, Adelaide, Canberra and Brisbane)
October 7 and 8.

Printed by authority of the Commonwealth Government Printer

Price code J, PR586272








50

ATTACHMENT A—LIST OF GROUP 2 AWARDS 

Extract from Attachment A to Full Bench Decision of 17 March 2014 [2014] FWCFB 1788; 
subgroups as per Attachment A of Statement on 6 May 2015 [2015] FWC 3148.

Group 2 (19 awards)

Award code Award title Subgroup

MA000092 Alpine Resorts Award 2010 2A

MA000118 Animal Care and Veterinary Services Award 2010 2B

MA000114 Aquaculture Industry Award 2010 2A

MA000110 Corrections and Detention (Private Sector) Award 2010 2D

MA000111 Fire Fighting Industry Award 2010 2D

MA000026 Graphic Arts Award 2010 2A

MA000027 Health Professionals and Support Services Award 2010 2B

MA000008 Horse and Greyhound Training Award 2010 2D

MA000031 Medical Practitioners Award 2010 2B

MA000034 Nurses Award 2010 2B

MA000063 Passenger Vehicle Transportation Award 2010 2C

MA000012 Pharmacy Industry Award 2010 2B

MA000014 Racing Industry Ground Maintenance Award 2010 2D

MA000039 Road Transport (Long Distance Operations) Award 2010 2C

MA000038 Road Transport and Distribution Award 2010 2C

MA000068 Seafood Processing Award 2010 2A

MA000084 Storage Services and Wholesale Award 2010 2A

MA000042 Transport (Cash in Transit) Award 2010 2C

MA000043 Waste Management Award 2010 2C

                                               

1 [2014] FWCFB 9412.
2 [2015] FWCFB 4658.
3 [2015] FWCFB 6656.
4 [2015] FWCFB 3023.
5 [2015] FWCFB 4466, [2015] FWCFB 6847, [2016] FWCFB 2602, [2016] FWCFB 4258 and [2016] FWCFB 4579.
6 [2015] FWCFB 3406, [2015] FWCFB 5771, [2016] FWCFB 3177 and [2016] FWCFB 3953.
7 [2015] FWCFB 2575 and [2015] FWCFB 3523.
8 Fair Work Ombudsman, Correspondence, 24 November 2014.
9 [2014] FWC 8837.
10 See for example, joint submission of 19 December 2014 and Transcript of 22 December 2014 at PN 326.






https://www.fwc.gov.au/documents/documents/transcripts/221214am2014196.htm
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/common/AM2014196and197-corr-ACTU-191214.pdf
https://www.fwc.gov.au/documents/decisionssigned/html/2014fwc8837.htm
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014198andors-corr-fwo-241114.pdf
https://www.fwc.gov.au/documents/decisionssigned/html/2015fwcfb3523.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2015fwcfb2575.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2016fwcfb3953.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2016fwcfb3177.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2015fwcfb5771.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2015fwcfb3406.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2016fwcfb4579.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2016fwcfb4258.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2016fwcfb2602.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2015fwcfb6847.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2015fwcfb4466.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2015fwcfb3023.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2015fwcfb6656.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2015FWCFB4658.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2014fwcfb9412.htm
http://www.fwc.gov.au/documents/modern_awards/award/ma000043/default.htm
http://www.fwc.gov.au/documents/modern_awards/award/ma000042/default.htm
http://www.fwc.gov.au/documents/modern_awards/award/ma000084/default.htm
http://www.fwc.gov.au/documents/modern_awards/award/ma000068/default.htm
http://www.fwc.gov.au/documents/modern_awards/award/ma000038/default.htm
http://www.fwc.gov.au/documents/modern_awards/award/ma000039/default.htm
http://www.fwc.gov.au/documents/modern_awards/award/ma000014/default.htm
http://www.fwc.gov.au/documents/modern_awards/award/ma000012/default.htm
http://www.fwc.gov.au/documents/modern_awards/award/ma000063/default.htm
http://www.fwc.gov.au/documents/modern_awards/award/ma000034/default.htm
http://www.fwc.gov.au/documents/modern_awards/award/ma000031/default.htm
http://www.fwc.gov.au/documents/modern_awards/award/ma000008/default.htm
http://www.fwc.gov.au/documents/modern_awards/award/ma000027/default.htm
http://www.fwc.gov.au/documents/modern_awards/award/ma000026/default.htm
http://www.fwc.gov.au/documents/modern_awards/award/ma000111/default.htm
http://www.fwc.gov.au/documents/modern_awards/award/ma000110/default.htm
http://www.fwc.gov.au/documents/modern_awards/award/ma000114/default.htm
http://www.fwc.gov.au/documents/modern_awards/award/MA000118/default.htm
http://www.fwc.gov.au/documents/modern_awards/award/MA000092/default.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2014fwc3148.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2014fwcfb1788.htm


[2016] FWCFB 7254 

51

                                                                                                                                                  

11 [2014] FWCFB 9412, [2015] FWCFB 4658, [2015] FWCFB 6656.
12 [2015] FWCFB 7236.
13 Falls Creek and Mount Hotham Chamber of Commerce, Submission, 28 January 2015.
14 Ai Group, Submission, 28 January 2015.
15 Australian Workers’ Union (AWU), Submission, 28 January 2015.
16 Australian Ski Areas Association (ASAA), Submission, 30 January 2015; ASAA, Submission, 4 March 2015; ASAA, 

Submission - substantive, 15 July 2015; ASAA, Submission, 15 July 2015. 
17 Mount Hotham Resort Management Board, Submission, 27 February 2015.
18 [2014] FWCFB 9412 at [84]-[85].
19 Falls Creek and Mount Hotham Chamber of Commerce, Submission, 28 January 2015 at [4] - [8], [14], [18] [26] and [29].
20 Falls Creek and Mount Hotham Chamber of Commerce, Submission, 28 January 2015 at [4] - [8], [14], [18] [26] and [29].
21 Mount Hotham Resort Management Board, Submission, 27 February 2015 at [1.7]-[1.8] and [1.11].
22 Thredbo Chamber of Commerce and the Perisher Resorts Chamber of Commerce, Submission, 10 May 2015.  See also 

New South Wales Business Chamber, Australian Business Industrial and Thredbo Chamber of Commerce, Submission, 

12 October 2015, p. 1-2.
23 Thredbo Chamber of Commerce and the Perisher Resorts Chamber of Commerce, Submission, 10 May 2015.
24 New South Wales Business Chamber, Australian Business Industrial and Thredbo Chamber of Commerce, Submission, 12 

October 2015, p. 1-2.  
25 ASAA, Submission, 30 January 2015 at [8]; ASAA, Submission, 4 March 2015 at [6]; ASSA, Submission at 21 August 

2015 [3].
26 ASSA, Submission , 21 October 2015 at [1.4]. See also ASSA, Correspondence – outstanding issues, 21 March 2016.
27 Deputy President Bull, Report to the Full Bench, 7 December 2015 at [11]. See also AWU, Correspondence - outstanding 

issues, 22 March 2016; ASSA, Correspondence – outstanding issues, 21 March 2016.
28 Ai Group, Correspondence, 19 March 2016.
29 Australian Veterinary Association (AVA), Response to Exposure Draft, 28 January 2015.
30 AWU, Submissions on Exposure Draft, 28 January 2015. 
31 Ai Group, Submission, 28 January 2015.
32 Australian Federation of Employers and Industry (AFEI), Submission, 28 January 2015.
33 Transcript of 7 July 2016 at PN 78-95.
34 AFEI, Submission, 25 July 2016.
35 AVA, Submission, 15 July 2016; AVA, Submissions – outstanding issues, 20 July 2016.
36 Ai Group, Submission, 28 January 2015 at [49] and 50].
37 AFEI, Submission, 28 January 2015 at [40]; AFEI, Submission, 25 July 2016.
38 AVA, Submissions – outstanding issues, 20 July 2016 at [1].
39 AFEI, Submission, 25 July 2016 at [2]-[4].
40 AFEI, Submission, 25 July 2016 at [5].
41 AVA, Submission, at [30]; AVA, Submissions – outstanding issues, 20 July 2016 at [1].
42 AVA, Submission, 15 July 2015 at [30].
43 Report to the Full Bench, 9 October 2015 at [19].
44 AVA, Submissions – outstanding issues, 20 July 2016 at [2].
45 UV, Submission in reply, 21 August 2015 at p. 1; see also UV, Submission, 15 July 2015 at p. 3.
46 Association of Professional Engineers, Scientists and Managers, Australia (APESMA), Submission, 16 July 2016 at [2]. 
47 AWU, Submission, 28 January 2015 at [14].
48 AVA, Submission, 15 July 2015 at [4]. See also AVA, Response to Exposure Draft, 28 January 2015at [14].
49 AFEI, Reply submission, 1 September 2015 at [9]-[12].
50 Ai Group, Submission, 28 January 2015 at [45]-[48].  See also Ai Group, Reply submission, 4 March 2015 at [32].






https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014198andors-sub-aig-040315.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014198andors-sub-aig-280115.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014199andors-sub-afei-010915.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014199-sub-ava-280115.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014199-sub-ava-150715.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014199-sub-awu-280115.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014199-sub-apesma-160715.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014199-sub-uv-150715.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014199-sub-uv-210815.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014199-sub-ava-200716.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/reportfb-091015-am2014199andors.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014199-sub-ava-150715.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014199-sub-ava-200716.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014199-sub-ava-150715.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014199-sub-afei-250716.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014199-sub-afei-250716.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014199-sub-ava-200716.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014199-sub-afei-250716.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014199-corr-afei-280115.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014198andors-sub-aig-280115.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014199-sub-ava-200716.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014199-sub-ava-150715.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014199-sub-afei-250716.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/20160707_am2014199.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014199-corr-afei-280115.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014198andors-sub-aig-280115.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014199-sub-awu-280115.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014199-sub-ava-280115.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014198-corr-aig-190316.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014198-corr-asaa-210316.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014198-corr-awu-220316.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014198-corr-awu-220316.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014198-report-071215.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014198-corr-asaa-210316.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014198-sub-asaa-211015.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014198-sub-asaa-210815.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014198-replysub-asaa-040315.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014198-sub-asaa-300115.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014198-corr-nswbcandors-121015.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014198-sub-thredboandor-100515.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014198-corr-nswbcandors-121015.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014198-sub-thredboandor-100515.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014198-subhrmb-270215.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014198-sub-fallscreekmthotham-280115.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014198-sub-fallscreekmthotham-280115.pdf
https://www.fwc.gov.au/documents/decisionssigned/html/2014fwcfb9412.htm
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014198-subhrmb-270215.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014198-sub-asaa-150715.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014198-sub-asaa-substantive-150715.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014198-replysub-asaa-040315.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014198-sub-asaa-300115.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014198-sub-awu-280115.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014198andors-sub-aig-280115.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014198-sub-fallscreekmthotham-280115.pdf
https://www.fwc.gov.au/documents/decisionssigned/html/2015fwcfb7236.htm
https://www.fwc.gov.au/decisionssigned/html/2015FWCFB6656.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2015FWCFB4658.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2014fwcfb9412.htm


[2016] FWCFB 7254 

52

                                                                                                                                                  

51 Veterinary Nurses Council of Australia, Submission, 17 August 2015; Veterinary Nurses Council of Australia, Submission 
in reply, 26 October 2015.

52 APESMA, Submission, 16 July 2015 at [2]. 
53 APESMA, Submission – clause 16.2, 26 July 2016.
54 An individual, Submission, 3 February 2016.
55 Ai Group, Submission, 28 January 2015.
56 Business SA, Submission, 28 January 2015.
57 AWU, Submission, 28 January 2015.
58 Austuna and others, Initial comments on exposure draft, 28 January 2015.
59 See FWC’s correspondence of 14 December 2015.
60 Business SA, Submission, 28 January 2015.
61 The amount has been increased to $16.38 since the exposure draft was issued.
62 AWU, Submission, 28 January 2015.
63 NSW Farmers’ Industrial Association (NSWFA), Reply submission, 17 February 2015.
64 NSWFA, Reply submission, 21 August 2015.
65 AWU, Submission, 28 January 2015 at [11].
66 Business SA, Reply submission, 28 August 2015; Business SA, Submission, 28 January 2015; Business SA, Proposed 

Variation, 25 November 2014 at p. 4.
67 Business SA, Proposed Variation, 25 November 2014 at p. 4.
68 Transcript of 7 October 2015 at PN294.
69 Ai Group, Submissions, 4 February 2015.
70 AWU, Submission, 5 February 2015.
71 AWU, Submission – revised exposure draft, 13 November 2015.
72 Ai Group, Submission –revised exposure draft, 13 November 2015.
73 UV, Submission – revised exposure draft, 13 November 2015.
74 Ai Group, Submission – revised exposure draft, 13 November 2015 at [3] and [15].
75 AWU, Outline of Submissions – Revised Exposure Draft and Draft Report, 13 November 2015 at [3].
76 Transcript 11 December 2015 at PN187–196
77 AWU, Submission, 15 July 2015 at [3]-[4]; AWU, Reply submission, 2 March 2015 at [3]; AWU, Submission, 5 February 

2015.
78 AWU, Submission, 15 July 2015 at [3]-[6].
79 UV, Submission, 19 October 2015; UV, Submission – revised exposure draft, 13 November 2014.
80 Ai Group, Correspondence 17 October 2015.
81 Ai Group, Reply Submission, 28 August 2015 at [59]-[61].
82 Ai Group, Submission – revised exposure draft 13 November 2015 at [4]-[7].
83 UV, Submission – revised exposure draft 13 November 2015 at [2]-[7].
84 Transcript 11 December 2015 PN203-206.
85 UV, Correspondence – revised exposure draft 16 December 2015.
86 Ai Group, Submission – revised exposure draft 13 November 2015 at [8]-[14].
87 Transcript 11 December 2015 PN206-237
88 Ai Group, Correspondence – revised exposure draft 16 December 2015.
89 UV, Correspondence – revised exposure draft 16 December 2015.
90 Ai Group, Submission – revised exposure draft, 13 November 2015 at [11].
91 AWU, Submission, 5 February 2015.
92 United Firefighters’ Union of Australia (UFUA), Submission – technical and drafting issues – exposure draft, 18 

November 2015.
93 Country Fire Authority (CFA), Submissions – technical and drafting issues – exposure draft, 20 November 2015.






https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014202-sub-cfa-201115.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014202-sub-ufu-181115.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014202-sub-awu-050215.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014201-sub-aig-131115.pdf
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/AM2014201-corr-UV-161215.pdf
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/AM2014201-corr-AIG-161215.pdf
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/20151211_AM2014201.pdf
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/AM2014201-sub-aig-131115.pdf
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/AM2014201-corr-UV-161215.pdf
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/20151211_AM2014201.pdf
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/AM2014201-sub-UV-131115.pdf
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/AM2014201-sub-aig-131115.pdf
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/AM2014198andors-sub-AIG-280815.pdf
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/AM2014201-corro-AIG-171015.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014201-sub-uv-131115.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014201-sub-uv-191015.pdf
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/AM2014201-sub-AWU-150715.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014201-sub-awu-050215.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014201-sub-awu-020315.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014201-sub-awu-150715.pdf
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/AM2014201and205-sub-AWU-131115.pdf
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/AM2014201-sub-aig-131115.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014201-sub-uv-131115.pdf
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/AM2014201-sub-aig-131115.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014201and205-sub-awu-131115.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014201-sub-awu-050215.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014201andors-sub-aig-040215.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/071015-am2014198andors.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014199andors-sub-bsa-251114.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014199andors-sub-bsa-251114.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014199andors-sub-bsa-251114.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014200andors-sub-busssa-280115.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014200andors-replysub-busssa-280115.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014200-sub-awu-280115.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014200-sub-nswfia-210815.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014200-sub-nswfarmers-170215.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014200-sub-awu-280115.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014200andors-sub-busssa-280115.pdf
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/AM2014200-corr-FWC-141215.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014200-sub-tassal-280115.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014200-sub-awu-280115.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014200andors-sub-busssa-280115.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014198andors-sub-aig-280115.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014199-sub-individual-030216.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014199-sub-apesma-260716.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014199-sub-apesma-160715.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014199-sub-vnca-261015.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014199-sub-vnca-261015.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014199-sub-vnca-090815.pdf


[2016] FWCFB 7254 

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94 Metropolitan Fire Brigade (MFB), Submission – technical and drafting issues – exposure draft, 20 November 2015.
95 See Transcript 17 December 2015 at PN32–34 and Directions, 24 December 2015.
96 Transcript 17 December 2015 at PN94.
97 AWU, Submission, 5 February 2015 at [12], UFUA, Submission, 18 November 2015 at [20].
98 MFB, Submission, 20 November 2015 at [29].
99 CFA, Submission, 20 November 2015 at [23].
100 Transcript 17 December 2015 at PN96.
101 [2014] FWCFB 9412 at para 52.
102 MFB, Submission, 20 November 2015 at [28].
103 AWU, Submission, 5 February 2015 at [11], UFUA, Submission, 18 November 2015 at [17].
104 Transcript 17 December 2015 at PN96.
105 Printing Industries Association of Australia (PIAA), Submission on exposure draft, 22 January 2015.
106 Ai Group, Submission, 28 January 2015.
107 Business SA, Submission, 28 January 2015.
108 AFEI, Submission, 28 January 2015.
109 ABI and NSW Business Chamber Ltd, Submission, 2 February 2015.
110 Ai Group, Correspondence – outstanding issues, 21 January 2016.
111 “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union”, known as the Australian  

Manufacturing Workers’ Union (AMWU), Submissions – outstanding issues, 22 January 2016.
112 Ai Group, Reply submission, 4 March 2015, at [39]; Ai Group, Submission, 28 January 2015 at [60].  See also Ai Group, 

AM2016/14 – submission – training costs, 17 June 2016.
113 AMWU, Submission – outstanding issues, 22 January 2016 at [2.7]-[2.11].
114 AMWU, Submission – outstanding issues, 22 January 2016 at [2.12].
115 Ai Group, Correspondence- outstanding issues, 21 January 2016.
116 Ai Group, Submission, 28 January 2015 at [114]. 
117 AMWU, Submission – outstanding issues, 22 January 2016 at [2.15].
118 AMWU, Submission – outstanding issues, 22 January 2016 at [1.2].
119 Fairfax Media, Submission – revised exposure draft, 23 October 2015.
120 West Australian Newspapers Limited (WAN) and ColourPress Pty Ltd, Submission, 11 May 2015 at [24].
121 WAN and ColourPress Pty Ltd, Submission at 11 May 2015 [17].
122 Health Services Union of Australia (HSU), Correspondence and alternate proposal, 25 April 2016.
123 Medical Imaging Employment Relations Group (MIERG), Submission – HSU proposal, 19 May 2016.
124 HSU, Reply submission, 4 March 2015 at [4]; HSU, Submission, 16 July 2015 at [10] and [23]; HSU, Submission –

Report to the Full Bench, 5 November 2015 at [3], HSU, Submission – draft determination, 5 August 2016 at [7].
125 APESMA, Outline of issues, 26 November 2014 at [3]-[4]; APESMA, Submission – draft order, 8 August 2016 at [E]; 

APESMA, Outline of submissions, 15 July 2015 at [4].
126 Ai Group, Supplementary Outline of Issues, 28 November 2014 at p. 3; Ai Group, Submission, 28 January 2015 at [121].
127 Chiropractors Association of Australia, Proposed Variation, 25 November 2014 at [1]; Chiropractors Association of 

Australia, Submission, 28 January 2015 at [14]; Chiropractors Association of Australia, Reply submission, 25 August 
2015 at [7].

128 HSU, Submission, 16 July 2015 at [116]; HSU, Submission – Report to the Full Bench, 5 November 2015 at [10]-[11]; 

HSU, Submission – draft determination, 5 August 2016 at [8].
129 HSU, Submission, 16 July 2015 at [100]-[109].
130 Aged Care Employers, Submission, 15 July 2015 at [2]-[4]. 
131 The issue regarding annualised salaries has been referred to the Full Bench dealing with other such claims in AM2016/13
132 Ai Group, Submission, 4 February 2015.
133 AWU, Submission, Reply submission, 4 March 2015.






https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014205-replysub-awu-040315.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014201andors-sub-aig-040215.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014204-sub-ace-150715.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014204-sub-hsu-160715.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014204-sub-hsu-050816.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014204-sub-hsu-051115.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014204-sub-hsu-160715.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014204-sub-caa-250815.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014204-sub-caa-280115.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014204-proposedvar-caa-251114.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014198andors-sub-aig-280115.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014204and207-sub-aig-281114.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014204-sub-apesma-150715.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014204-sub-apesma-050816.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014204-sub-apesma-261114.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014204-sub-hsu-050816.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014204-sub-hsu-051115.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014204-sub-hsu-051115.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014204-sub-hsu-160715.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014204-sub-hsu-040315.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014204-sub-miarc-190516.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014204-corr-hsu-250416.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014203-sub-wan-110215.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014203-sub-wan-110215.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014203-sub-ffm-231015.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014203-sub-amwu-220116.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014203-sub-amwu-220116.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014198andors-sub-aig-280115.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014203-corr-aig-210116.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014203-sub-amwu-220116.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014203-sub-amwu-220116.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201614-sub-aig-170616.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014198andors-sub-aig-280115.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014198andors-sub-aig-040315.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014203-sub-amwu-220116.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014203-corr-aig-210116.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014198andors-sub-abinswbc-020215.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014199-corr-afei-280115.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014200andors-sub-busssa-280115.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014198andors-sub-aig-280115.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014203-sub-piaa-220115.pdf
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/171215_AM2014202.pdf
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/AM2014202-sub-UFU-181115.pdf
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/AM2014202-sub-AWU-050215.pdf
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/AM2014202-sub-MFB-201115.pdf
https://www.fwc.gov.au/documents/decisionssigned/html/2014FWCFB9412.htm
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/171215_AM2014202.pdf
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/AM2014202-sub-CFA-201115.pdf
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/AM2014202-sub-MFB-201115.pdf
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/AM2014202-sub-UFU-181115.pdf
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/AM2014202-sub-AWU-050215.pdf
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/171215_AM2014202.pdf
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/AM2014202-dir-241215.pdf
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/171215_AM2014202.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014202-sub-mfb-201115.pdf


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134 AFEI, Submission, 6 February 2015.
135 Australian Trainers’ Association (ATA), Submission, 2 February 2015.
136 AWU, Submission – revised exposure draft, 13 November 2015. 
137 ATA, Response to revised exposure draft, 28 October 2015.
138 Ai Group, Submission – revised exposure draft, 6 November 2015.
139 AWU, Submission – revised exposure draft, 13 November 2015 at [20]-[27]; Ai Group, Submission – revised exposure 

draft, 6 November 2015 at [2]
140 AWU, Submissions – further revised exposure draft, 14 December 2015 at [15]-[16] and AWU, Submission – revised 

exposure draft, 13 November 2015 at [28].
141 [2015] FWCFB 6656 at [110]; see also July 2015 decision.
142 [2015] FWCFB 7236.
143 Transcript, 27 October 2015 at PN176-177
144 AWU, Submission – revised exposure draft, 13 November 2015 at [17]
145 AWU, Submission, 15 July 2015 at [1].  See also AWU, Submission – revised exposure draft, 13 November 2015 at [18].
146 Ai Group, Reply submission, 28 August 2015 at [257].
147 ATA, Reply submission, 20 February 2015 at [1].
148 AWU, Submission – revised exposure draft, 13 November 2015 at [19].
149 Australian Salaried Medical Officers’ Federation (ASMOF), Correspondence, 15 October 2015.
150 HSU, Outline of submissions and proposed variation, 25 November 2014 at [20]; HSU, Submission, 16 July 2015 at [6]-

[9].
151 HSU, Submission, 16 July 2015 at [8].
152 HSU, Submission, 16 July 2015 at [9].
153 Ai Group, Reply submission, 28 August 2015 at [272]-[283].
154 ACE, Submission, 28 January 2015 at [3].
155 Ai Group, Reply submission, 4 March 2015 at [91].
156 Australian Nursing and Midwifery Federation (ANMF), Reply submission, 4  March 2015.  See also ANMF, Submission, 

15 July 2015.
157 ANMF, Proposed variations, 25 November 2014 at [7]; ANMF, Submission, 15 July 2015 at [30]-[33].
158 See also ANMF, Proposed variations, 25 November 2014 at [12].
159 ANMF, Submission, 15 July 2015 at [52].
160 ANMF, Submission, 15 July 2015 at [27]-[28]. See also ANMF, Proposed variations, 25 November 2014 at [13].
161 ACE, Submission, 15 July 2015, Annexure A.
162 ANMF, Further submission, 21 July 2016.
163 HSU, Reply submission, 25 August 2015 at [11]; Private Hospital Industry Employer Associations (PHIEA), Reply 

submission, August 2015 at [5] and [9].
164 ACE, Reply submission, 21 August 2015 at [4].
165 ACE, Submission, 28 January 2015 at [6].
166 ACE, Submission, 28 January 2015 at [6].
167 ANMF, Further submission, 21 July 2016.
168 ACE, Submission, 15 July 2015 at [2].
169 ANMF, Submission, 15 July 2015 at [42].
170 ANMF, Submission, 15 July 2015 at [46]; ANMF, Submission, 23 March 2015 at [10].
171 ANMF, Submission, 15 July 2015 at [46]; ANMF, Submission, 28 January 2015.
172 ACE, Submission, 15 July 2015 at [5].
173 ANMF, Submission, 15 July 2015 at [15-19]; ANMF, Submission, 28 January 2015.
174 HSU, Submission, 16 July 2015 at [31].
175 HSU, Submission, 16 July 2015 at [12].






https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2015207-sub-hsu-160715.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2015207-sub-hsu-160715.pdf
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https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014207-sub-acs-150715.pdf
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https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014207-sub-anmf-230315.pdf
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https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014207-sub-anmf-150715.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014207-sub-acs-150715.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014207-subs-anmf-210716.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014207-sub-ace-280114.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014207-sub-ace-280114.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2015207-sub-ace-210815.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2015207-sub-phiea-190815.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2015207-sub-phiea-190815.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2015207-sub-hsu-250815.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014207-subs-anmf-210716.pdf
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https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014207-sub-anmf-150715.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014207-sub-anmf-150715.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014207-sub-anmf-251114.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014207-sub-anmf-150715.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014207-sub-anmf-251114.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014207-sub-anmf-150715.pdf
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http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/AM2014201and205-sub-AWU-131115.pdf
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http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/AM2014201and205-sub-AWU-131115.pdf
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http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/AM2014201and205-sub-AWU-131115.pdf
https://www.fwc.gov.au/documents/decisionssigned/html/2015FWCFB7236.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2015FWCFB6656.htm
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/AM2014201and205-sub-AWU-131115.pdf
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/AM2014201and205-sub-AWU-131115.pdf
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/AM2014205-sub-AWU-141215.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/AM2014205-sub-AIG-061115.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/AM2014205-sub-AIG-061115.pdf
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/AM2014201and205-sub-AWU-131115.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014205-sub-aig-061115.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014205-response-ata-281015.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014201and205-sub-awu-131115.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014205-sub-ata-020215.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014205-sub-afei-060215.pdf


[2016] FWCFB 7254 

55

                                                                                                                                                  

176 ANMF, Submission, 4 March 2015.
177 ANMF, Proposed variations, 25 November 2014 at [6].
178 HSU, Reply submission, 25 August 2015 at [11].
179 Ai Group, Correspondence, 7 July 2016.
180 Transcript 7 July 2016 PNs 204-220.
181 Ai Group, Reply submission, 28 August 2016 at [449]; Ai Group, Submission, 4 February 2015 at [6.7].
182 Ai Group, Submission, 4 February 2015 at [6.8].
183 Ai Group, Submission, 4 February 2015 at [6.7]-[6.8].
184 Transport Workers Union (TWU), AM2016/8 – Submission – report to the Full Bench, 16 August 2016 at [8]-[11].
185 Australian Public Transport Industrial Association (APTIA), Correspondence – outstanding issues, 11 July 2016; APTIA, 

Submission on exposure draft – amended, 12 May 2015, at [26]-[34]; APTIA, Draft determinations, 25 November 2014, 

page 5.
186 TWU, Submission on exposure draft, 4 February 2015 at [9]; TWU, Submission, 20 July 2015 at [18] and [19].
187 Statement re Group 2 awards [2015] FWCFB 6662 at para 6
188 Statement - [2015] FWC 6555
189 Statement - [2015] FWC 7467
190 Statement – [2016] FWCFB 5621
191 Statement – [2016] FWC 4770
192 Ai Group, Submissions, 4 February 2015.
193 AWU, Submission, 28 January 2015.
194 Business SA, Submissions, 4 February 2015.
195 Ai Group, Submission – revised exposure draft, 9 November 2015 at [6].
196 Ai Group, Reply submission, 1 November 2015.
197 [2015] FWCFB 4658  at [42].
198 Ai Group, Submission – revised exposure draft, 9 November 2015 at [3] and [4].
199 AWU Submission 11 November 2015.
200 AFEI Submission 13 November 2015.
201 Australian Road Transport Industrial Organisation (ARTIA), Submissions, 4 February 2015. 
202 AWU, Submissions, 4 February 2015.  
203 Australian Business Industrial and NSW Business Chamber Ltd, Submissions, 4 February 2015.
204 Business SA, Submissions, 4 February 2015.
205 Ai Group, Submissions, 4 February 2015.
206 TWU, Submission on exposure draft, 4 February 2015.
207 Transcript of 7 July 2016 at PN 248.
208 TWU, Correspondence, 15 May 2015.
209 TWU, Submission on exposure draft, 4 February 2015 at [3].
210 Ai Group, Correspondence, 7 July 2016.
211 Ai Group, Submission, 11 February 2015 at [61-62].
212 TWU, AM2016/8 – Submission – report to the Full Bench, 16 August 2016.
213 Transcript 7 July 2016 at PNs230-234
214 TWU, Submission, 2 September 2016.
215 Ai Group, Submission, 11 February 2015 at [82].  Ai Group, Reply submission, 28 August 2015 at [466]. See also Ai 

Group, Correspondence, 7 July 2016.
216 Ai Group, Proposed variation, 24 November 2014 at [10].  See also Ai Group, Correspondence, 7 July 2016.
217 Ai Group, Proposed variation, 24 November 2014 at [10]. See also Ai Group, Correspondence, 7 July 2016.
218 Ai Group, Correspondence, 7 July 2016.






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https://www.fwc.gov.au/documents/decisionssigned/html/2015FWCFB4658.htm
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https://www.fwc.gov.au/documents/decisionssigned/html/2016fwc4770.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2016fwcfb5621.htm
https://www.fwc.gov.au/sites/awardsmodernfouryr/2015FWC7467.pdf
https://www.fwc.gov.au/decisionssigned/html/2015FWC6555.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2015FWCFB6662.htm
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014208-sub-twu-200715.pdf
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https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014208-subamended-aptia-110515.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014208-corr-aptia-110716.pdf
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https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014201andors-sub-aig-040215.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014201andors-sub-aig-040215.pdf
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https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014207-replysub-anmf-040315.pdf


[2016] FWCFB 7254 

56

                                                                                                                                                  

219 TWU, Submission – proposed variations, 14 October 2015.
220 TWU, Submission – proposed variations, 14 October 2015.  See also TWU, Correspondence – draft report, 23 November 

2015.
221 Ai Group, Submission, 11 February 2015 at [80].  See also Ai Group, Correspondence, 7 July 2016.
222 AMWU, Submission, 28 January 2015 at [3].
223 AWU, Reply submission, 18 February 2015 at [2].
224 Ai Group, Reply submission, 4 March 2015 at [114].
225 AMWU, Submission, 28 January 2015 at [3].
226 AMWU, Submission, 28 January 2015 at [3].
227 Ai Group, Reply submission, 4 March 2015 at [114].
228 [2015] FWCFB 7236 at [37] to [50]
229 [2015] FWCFB 7236 at [154] to [159]
230 Ai Group, Summary of submissions – revised and exposure draft – revised, 2 November 2015.
231 Ai Group, Correspondence – outstanding issues – extension of time, 19 March 2016.
232 Ai Group, Submission – outstanding issues, 8 April 2016 at [22].
233 AWU, Correspondence – status of issues, 11 April 2016.
234 See also 4 yearly review of modern awards—Alleged NES Inconsistencies, [2015] FWCFB 3023 at [40]–[45]
235 Ai Group, Submission – amended, 7 July 2016, at [42]-[5].
236 AWU, SDA and National Union of Workers (NUW), Submission – outstanding issues, 22 January 2016 at [2].
237 AWU, SDA and National Union of Workers (NUW), Submission – outstanding issues, 22 January 2016 at [3].
238 Ai Group, Submission – amended, 7 July 2016, at [7].
239 AWU, SDA and National Union of Workers (NUW), Submission – outstanding issues, 22 January 2016 at [5].
240 AWU, SDA and National Union of Workers (NUW), Submission – outstanding issues, 22 January 2016 at [9].
241 [2015] FWCFB 7236
242 Ai Group, Submission – amended, 7 July 2016 at [20].
243 Ai Group, Submission – amended, 7 July 2016 at [39].
244 Ai Group, Submission – amended, 7 July 2016 at [50].
245 AWU, SDA and National Union of Workers (NUW), Submission – outstanding issues, 22 January 2016 at [25].
246 AWU, SDA and National Union of Workers (NUW), Submission – outstanding issues, 22 January 2016 at [26] and [30].
247 AWU, SDA and National Union of Workers (NUW), Submission – outstanding issues, 22 January 2016 at [27]-[28].
248 AWU, SDA and National Union of Workers (NUW), Submission – outstanding issues, 22 January 2016 at [29].
249 AWU, SDA and National Union of Workers (NUW), Submission – outstanding issues, 22 January 2016 at [30].
250 AWU, SDA and National Union of Workers (NUW), Submission – outstanding issues, 22 January 2016 at [32].
251 AWU, SDA and National Union of Workers (NUW), Submission – outstanding issues, 22 January 2016 at [34].
252 Ai Group, Submission – amended, 7 July 2016 at [52]-[60].
253 Ai Group, AM2016/8 – correspondence and draft determinations, 26 April 2016.
254 Ai Group, Correspondence, 7 July 2016.
255 TWU, Submission, 22 July 2015 at [14].
256 TWU, Submission on exposure draft, 4 February 2015 at [5]; TWU, Submission, 22 July 2015 at [18].
257 TWU, Submission, 22 July 2015 at [16].
258 TWU, Proposed variation, 25 November 2014 at [6]; TWU, Submission, 22 July 2015 at [16].






https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014216-sub-twu-220715.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014216-proposedvar-twu-251114.pdf
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https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014212-sub-twu-151015.pdf

Cases cited by this decision: