[2016] FWCFB 7967
The attached document replaces the document previously issued with the above code on 4
November 2016.
Footnote 1 converted to an endnote
Endnotes 3 and 4 amended to refer to [2016] FWCFB 5621
Joanna Richardson
Associate to Justice Ross, President
Dated 4 November 2016
1
Fair Work Act 2009
s.156 - 4 yearly review of modern awards
4 yearly review of modern awards – Plain language re-drafting
(AM2016/15)
JUSTICE ROSS, PRESIDENT
VICE PRESIDENT HATCHER
COMMISSIONER HUNT
MELBOURNE, 4 NOVEMBER 2016
4 yearly review of modern awards – Plain language project – Clerks—Private Sector Award
2010 – Revised plain language timetable
[1] As foreshadowed in the Statement issued on 15 July 20161, the initial Guidelines
developed by Mr Eamonn Moran QC as part of the plain language pilot are being expanded
and refined. These Guidelines will be a reference for further plain language re-drafting
undertaken as part of the 4 yearly review.
[2] In order to give parties the opportunity to make submissions and attend consultations
on the content of the Guidelines as outlined in a Statement issued today2, the timetable set out
in Attachment A to the Statement issued on 11 August 20163 has been revised. The revised
timetable for further plain language re-drafting is at Attachment A.
Clerks—Private Sector Award 2010 – outstanding technical and drafting issues
[3] Further to the Statement issued on 11 August 20164 and Directions issued on
17 August 2016, the Commission has considered submissions received from interested parties
in relation to 13 outstanding technical and drafting issues in relation to the exposure draft
based on the Clerks—Private Sector Award 2010 (Clerks exposure draft) that was first
published on 18 December 2015.
[4] A further revised summary of submissions and revised exposure draft was published
on 11 October 2016 to the incorporate further agreed changes.
[5] As proposed by Ai Group5 and supported by BusinessSA, the Commission facilitated
a written submissions process, prior to the commencement of plain language re-drafting, to
deal with 13 items marked as “O—Outstanding” in the Revised summary of submissions that
was published on 4 August 2016.
[6] The further revised exposure draft and summary of submissions published on
11 October 2016 reflect the status of technical and drafting issues at this point in time based
[2016] FWCFB 7967
STATEMENT
AUSTRALIA FairWork Commission
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/clerks-subs-summary-030616.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014219-am201615-directions-170816.pdf
https://www.fwc.gov.au/documents/decisionssigned/html/2016fwcfb5621.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2016fwc4756.htm
[2016] FWCFB 7967
2
on all written and oral submissions received by the Commission in relation to the Clerks
Award exposure draft.
[7] Following the most recent round of written submissions, one further issue has been
raised and 5 issues have been agreed. The five agreed issues are:
Item 4 (revising the reference to individual employees and majority of employees in
the index of facilitative provisions and amendments to clause 18.2)
Items 8 and 39 (no support for proposal to define ‘shiftworker’)
Item 41 (no support for clarifying the meaning of ‘special rates’)
Item 45 (no support for clarification of annual leave loading calculation)
[8] The following items listed as Outstanding in the further revised summary of
submissions are to be dealt with along with all other award-specific clauses that will be
subject to plain language re-drafting:
Items 9 and 10 (Ai Group proposes amended wording for weekly hours of work
provisions)
Items 17, 18 and 40 (clarifying the effect of provisions for altering the span of
ordinary hours)
Item 35 (rest period after working overtime)
Item 49 (inclusion of a provision for shiftworkers in a clause that excludes
shiftworkers)
An additional Item 50 (Ai Group has made a submission in relation to the use of
inconsistent terminology for shift loadings, penalties and allowances within and across
awards)
[9] The following items were listed as Outstanding in the further revised summary of
submissions:
(i) In Item 44 the Australian Municipal, Administrative, Clerical and Services Union (ASU)
is seeking a substantive change to the definition of shiftworker. This status has been
changed to S—Substantive.
(ii) In Item 2, Community Connections Solutions Australia was seeking to vary the coverage
of the Clerks award. This claim was withdrawn on 30 September 2016.
[10] The remaining substantive issues are Item 31, Superannuation, and Item 47, evidence
required for the taking of leave.
[11] It is our view that it would be more efficient to deal with the award-specific
outstanding technical and drafting issues together with all other award-specific provisions of
the Clerks Award that will be subject to plain language re-drafting as part of the Award Stage
of the Review. Attachment B identifies the award-specific, common and standard clauses of
the revised Clerks Award exposure draft.
[12] Clauses that are common to other modern awards will be dealt with in a separate
process as outlined in the Statement issued 11 August 2016.6
[13] The plain language re-draft will be based on the revised Clerks Award exposure draft
published on 11 October 2016.
[2016] FWCFB 7967
3
[14] Plain language re-drafting will alter the form of terms in the revised exposure draft,
including terms agreed by interested parties reflected in the revised exposure draft. It is likely
that plain language re-drafting will raise further technical and drafting issues.
[15] The objective of plain language re-drafting is to make the award simpler and easier to
understand without changing its legal effect. However, because the intended outcome of the
process is to improve precision, remove ambiguity and clearly convey how provisions are to
be applied in the workplace, the process has the potential to reveal issues and generate debate
about the entitlements and obligations under the award.
[16] Written and oral submissions received to date from interested parties in relation to the
Clerks Award exposure draft will inform re-drafting activities. However, it may be necessary
to seek further submissions in respect to the plain language re-draft to clarify the intended and
actual effect of provisions of the Clerks Award.
[17] Interested parties will continue to be consulted on the plain language re-drafting of this
award.
PRESIDENT
Printed by authority of the Commonwealth Government Printer
Price code A, PR587216
[2016] FWCFB 7967
4
Attachment A—Updated Plain language modern awards timetable
A.1 Pharmacy Industry Award 2010
Plain language draft Pharmacy Industry Award
Date
Revised exposure draft (with plain language award-specific
clauses) published
22 July 2016
Conference 26 September 2016
Deadline for written submissions 7 November 2016
Deadline for reply written submissions 21 November 2016
Submissions and reply submissions summarised and published w/c 28 November 2016
Hearing 15 December 2016
A.2 All awards
Plain language draft standard clauses
Date
Plain language draft standard clauses published for comment 11 August 2016
Deadline for written submissions 29 September 2016
Submissions summarised and published w/c 3 October 2016
Deadline for reply written submissions w/c 27 October 2016
Reply submissions summarised and published w/c 31 October 2016
Conference 23 November 2016
Plain language draft common clauses
Date
Plain language draft common clauses published for comment Not before March 2017
Deadline for written submissions TBC
Submissions summarised and published TBC
Deadline for reply written submissions TBC
Reply written submissions summarised and published TBC
Conference TBC
Plain language guidelines (see [2016] FWCFB 7968)
Date
Plain language draft guidelines published for comment 4 November 2016
Deadline for written submissions 17 November 2016
Submissions summarised and published 21 November 2016
Conference 23 November 2016
[2016] FWCFB 7967
5
A.3 Four modern awards selected for plain language re-drafting
Clerks—Private Sector Award 2010 (see paragraphs [13])
Date
Revised Clerks—Private Sector Award 2010 exposure draft and
summary of submissions published
w/c 11 October 2016
Plain language re-draft of award-specific clauses published for
comment
w/c 26 September 2016
w/c 12 December 2016
Deadline for written submissions
11 November 2016
17 February 2017
Submissions on award-specific clauses summarised and published
w/c 14 November 2016
w/c 20 February 2017
Deadline for reply written submissions
9 December 2016
24 March 2017
Submissions in reply summarised and published
w/c 12 December 2016
w/c 27 March 2017
Conference
w/c 21 November 2016
w/c 3 April 2017
Hospitality Industry (General) Award 2010 and Restaurant Industry Award 2010
Date
Exposure drafts (including plain language award-specific clauses)
published for comment
w/c 9 January 2017
w/c 16 January 2017
Deadline for written submissions
24 February 2017
20 April 2017
Submissions summarised and published
w/c 27 February 2017
w/c 24 April 2017
Deadline for reply written submissions
24 March 2017
1 June 2017
Submissions in reply summarised and published
w/c 27 March 2017
w/c 5 June 2017
Conference
w/c 3 April 2017
Late June 2017
[2016] FWCFB 7967
6
General Retail Industry Award 2010
Date
Exposure draft (including plain language award-specific clauses)
published for comment
w/c 10 April 2017
w/c 22 May 2017
Deadline for written submissions
26 May 2017
20 July 2017
Submissions summarised and published
w/c 29 May 2017
w/c 27 July 2017
Deadline for reply written submissions
23 June 2017
1 September 2017
Submissions summarised and published
w/c 26 June 2017
w/c 4 September 2017
Conference
w/c 3 July 2017
Late September 2017
w/c = week commencing
[2016] FWCFB 7967
7
Attachment B—Award-specific, common and standard clauses in the
revised Clerks Award exposure draft
Revised Clerks Award exposure draft (11 October 2016) Clause type
Part 1—Application and Operation
1. Title and commencement
2. The National Employment Standards and this award
3. Coverage
4. Award flexibility
5. Facilitative provisions
Part 2—Types of Employment and Classifications
6. Types of employment
7. Classifications
Part 3— Hours of Work
8. Ordinary hours of work (other than shiftworkers)
9. Breaks
Part 4—Wages and Allowances
10. Minimum wages
11. Allowances
12. Superannuation
Part 5—Penalties and Overtime
13. Overtime rates and penalties (other than shiftworkers)
14. Shiftwork
Part 6—Leave, Public Holidays and Other NES
Entitlements
15. Annual leave
16. Personal/carer’s leave and compassionate leave
17. Parental leave and related entitlements
18. Public holidays
19. Community service leave
20. Termination of employment
21. Redundancy
Part 7—Consultation and Dispute Resolution
22. Consultation
23. Dispute resolution
Schedule A—Classification Structure and Definitions
Schedule B—Summary of Hourly Rates of Pay
Award-specific (except clause 1.3)
Common
Award-specific
Standard
Common
Award-specific
Award-specific
Award-specific
Award-specific
Award-specific
Award-specific
Standard
Award-specific
Award-specific
Common
Common
Common
Common
Common
Standard
Standard
Standard
Standard
Award-specific
Common
[2016] FWCFB 7967
8
Schedule C—Summary of Monetary Allowances
Schedule D—Supported Wage System
Schedule E—National Training Wage
Schedule F—2015 Part-day Public Holidays
Schedule G—Agreement To Take Annual Leave In Advance
Schedule H—Agreement To Cash Out Annual Leave
Schedule I—Definitions
Common
Common
Common
Common
Plain language – no further change
Plain language – no further change
Award-specific
1 [2016] FWC 4756 at [36]–[38]
2 [2016] FWCFB 7968
3 [2016] FWCFB 5621
4 ibid
5 Ai Group, submission 18 July 2016
6 [2016] FWCFB 5621
https://www.fwc.gov.au/documents/decisionssigned/html/2016fwcfb5621.htm
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201615-corr-aig-180716.pdf
https://www.fwc.gov.au/documents/decisionssigned/html/2016fwcfb5621.htm
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/2016fwcfb7968.pdf
https://www.fwc.gov.au/documents/decisionssigned/html/2016fwc4756.htm
