1
Fair Work Act 2009
s.156 - 4 yearly review of modern awards
4 yearly review of modern awards – Award stage – Group 3
(AM2014/223 and others)
JUSTICE ROSS, PRESIDENT
SENIOR DEPUTY PRESIDENT HAMBERGER
DEPUTY PRESIDENT CLANCY
COMMISSIONER JOHNS MELBOURNE, 30 OCTOBER 2017
4 yearly review of modern awards – award stage – exposure drafts – technical and drafting
issues – Group 3 awards.
CONTENTS
Page Paragraph
1. Introduction 5 [1]
2. Review of Group 3 awards 5 [4]
2.1 Clerks Private Sector Award 2010 6 [10]
2.2 Dredging Industry Award 2010 7 [15]
2.3 Educational Services (Post-Secondary Education) Award 2010 16 [84]
2.4 Educational Services (Schools) General Staff Award 2010 17 [95]
2.5 Fitness Industry Award 2010 23 [131]
2.6 Gardening and Landscaping Services Award 2010 28 [167]
2.7 Horticulture Award 2010 30 [183]
2.8 Legal Services Award 2010 39 [235]
2.9 Nursery Award 2010 45 [270]
[2017] FWCFB 5536
DECISION
E AUSTRALIA FairWork Commission
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Page Paragraph
2.10 Pastoral Award 2010 48 [283]
2.11 Silviculture Award 2010 59 [341]
2.12 Sporting Organisations Award 2010 74 [442]
2.13 Sugar Industry Award 2010 76 [452]
2.14 Wine Industry Award 2010 90 [538]
3. Other matters 96 [579]
4. Next steps 98 [593]
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ABBREVIATIONS
ABI Australian Business Industrial and New South Wales
Business Chamber (jointly ABI)
Act Fair Work Act 2009 (Cth)
AFEI Australian Federation of Employers and Industries
AHEIA Australian Higher Education Industrial Association
Ai Group Australian Industry Group
AIS Association of Independent Schools
AMWU Automotive, Food, Metals, Engineering, Printing and
Kindred Industries Union known as the Australian
Manufacturing Workers’ Union
ASMC Australian Sugar Milling Council
ASSA Australian Swim Schools Association Ltd
ASU Australian Municipal, Administrative, Clerical and
Services Union
AWU The Australian Workers’ Union
Business SA South Australian Employers’ Chamber of Commerce and
Industry Inc trading as Business SA
COAG Council of Australian Governments
Commission Fair Work Commission
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
FA Fitness Australia
FWO Fair Work Ombudsman
GA Gymnastics Australia
Go8 Group of Eight Universities
IEU Independent Education 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
July 2017 decision Full Bench decision – Award stage – exposure drafts –
Group 3 Awards – 6 July 2017 [2017] FWCFB 3433
NES National Employment Standards
NFF National Farmers’ Federation
NTEU National Tertiary Education Industry Union
NUW National Union of Workers
Review 4 yearly review of modern awards under s.156 of the Fair
Work Act 2009
https://www.fwc.gov.au/awards-and-agreements/modern-award-reviews/4-yearly-review/award-stage/award-review-documents/MA000035?m=AM2014/239
https://www.fwc.gov.au/documents/decisionssigned/html/2015FWCFB4658.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2014FWCFB9412.htm
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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
SAWIA South Australian Wine Industry Association
the Clerks Award Clerks – Private Sector Award 2010
the Dredging Award Dredging Industry Award 2010
the Post-Secondary Award Educational Services (Post-Secondary Education) Award
2010
the General Staff Award Educational Services (Schools) General Staff Award 2010
the Fitness Award Fitness Industry Award 2010
the Gardening Award Gardening and Landscaping Services Award 2010
the Horticulture Award Horticulture Award 2010
the Legal Services Award Legal Services Award 2010
the Nursery Award Nursery Award 2010
the Pastoral Award Pastoral Award 2010
the Silviculture Award Silviculture Award 2010
the Sporting Organisations
Award
Sporting Organisations Award 2010
the Sugar Award Sugar Industry Award 2010
the Wine Industry Award Wine Industry Award 2010
UV United Voice
VOH Voice of Horticulture
https://www.fwc.gov.au/documents/decisionssigned/html/2015FWCFB6656.htm
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1. Introduction
[1] Section 156 of the Fair Work Act 2009 (the Act) requires the Fair Work Commission
(the Commission) to review all modern awards every four years (the Review). In the Award
stage of the Review the 122 modern awards have been divided into 4 groups. This decision
deals with the technical and drafting issues arising out of the awards in Group 3. The 33
awards allocated to Group 3 are listed at Attachment A to this decision. This decision should
be read in conjunction with the decision issued on 6 July 2017 (the July 2017 decision) which
dealt with 19 of the awards in Group 3. This decision deals with the remaining awards within
Group 3.
[2] In addition to the July 2017 decision, this decision should be read in conjunction with
earlier decisions and statements concerning the Review, and in particular the decisions of 23
December 2014 (the December 2014 decision), 13 July 2015 (the July 2015 decision) and 30
September 2015 (the September 2015 decision), in which the Commission dealt with a
number of general drafting and technical issues common to multiple exposure drafts.
[3] The December 2014 decision, along with an additional decision issued in May 20151,
dealt with alleged inconsistencies with the National Employment Standards (NES). Further
decisions in relation to award flexibility (AM2014/300), annual leave (AM2014/47) and
transitional provisions in relation to accident pay (AM2014/190) also have application to this
group of awards.
2. Review of Group 3 awards
[4] Conferences were held on 30 March 2015 to identify the issues to be raised by
interested parties during the review of each of the Group 3 awards. The Commission
subsequently published summaries of proposed variations.
[5] The Fair Work Ombudsman (FWO) raised a number of issues identified through
interactions with employers and employees covered by Group 3 awards. 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 they were included in the
‘summaries of submissions’ published on the Award Review webpage.
[6] The Commission published exposure drafts for the Group 3 awards in two tranches,
between December 2015 and January 2016, together 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.
[7] Mentions were held on 6 and 7 June 2016 to deal with the technical and drafting issues
identified in relation to the Group 3 exposure drafts. The purpose of the mentions was to:
confirm that the published summaries of submissions were accurate and reflected
the positions of the parties;
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identify any submissions or variations that were agreed or withdrawn; and
identify any matters of a substantive nature that had not yet been referred to a
specially constituted Full Bench.
[8] After the mentions, further conferences were conducted by individual members in
respect of particular Group 3 awards. As noted above, the July 2017 decision dealt with of 19
of the awards in Group 3 and this decision deals with the remaining awards in Group 3, that
is:
Dredging Industry Award 2010;
Educational Services (Post-Secondary Education) Award 2010;
Educational Services (Schools) General Staff Award 2010;
Horticulture Award 2010;
Sugar Industry Award 2010;
Clerks Private Sector Award 2010;
Fitness Industry Award 2010;
Gardening and Landscaping Services Award 2010;
Legal Services Award 2010;
Nursery Award 2010;
Pastoral Award 2010;
Silviculture Award 2010;
Sporting Organisations Award 2010; and
Wine Industry Award 2010.
[9] We now turn to the particular awards.
2.1 Clerks Private Sector Award 2010
[10] As confirmed in the Statement issued on 15 July 2016,2 the Clerks—Private Sector
Award 20103 (Clerks Award) will be the subject of the plain language review process. In
consultations with the parties it was agreed that the outstanding technical and drafting issues
would be dealt with prior to the plain language redrafting.4
[11] Written submissions on the 13 outstanding technical issues were due by
8 September 2016 and submissions in reply by 27 September 2016. A revised exposure draft
was published by the Commission on 11 October 2016 with a plain language re-drafted
exposure draft to be published for comment.
[12] Following further written submissions and consultations a Statement was issued on
4 November 20165 setting out the items that had been resolved and noting that the outstanding
issues would be dealt with as part of the plain language re-drafting process.
[13] An initial plain language exposure draft was published on 3 February 2017 along with
a comparison document detailing the changes between the previous exposure draft and the
plain language re-draft. Subsequently there have been further written submissions and a
number of revised exposure drafts published. The plain language draft was considered at a
conference on 15 September 2017.6
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014-219-clerks-comparison-300117.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201615-219-exposure-draft-clerks-revised-030117.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/exposure-draft-clerks-revised-111016.pdf
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[14] There are currently no matters for this Full Bench to determine in relation to the
Clerks Award. The Full Bench constituted to deal with the plain language redrafting of
modern awards will continue to deal with the Clerks Award.
2.2 Dredging Industry Award 2010
[15] On 15 January 2016 the Commission published an initial exposure draft based on the
Dredging Industry Award 20107 (Dredging Award) together with a comparison document
showing the changes made to the structure and language in the award. Interested parties were
provided with an opportunity to file written submissions and submissions in reply on the
drafting and technical issues in the exposure draft.8 Submissions were received from the
MUA9 and the AWU10 and on 26 May 2016 the Commission published a summary of
submissions.
[16] The Dredging Award was listed for mention on 6 June 2016 to:
(i) confirm that the published summary of submissions was accurate and reflected
the parties’ positions;
(ii) identify any submissions or variations agreed or withdrawn; and
(iii) identify whether any matters raised in submissions were of a substantive nature
and required consideration by a specially constituted Full Bench.
[17] The Australian Institute of Marine and Power Engineers (AIMPE), the AWU, and the
MUA appeared at the 6 June 2016 mention.11
[18] Following the 6 June 2016 mention, the Commission published a revised summary of
submissions on 24 June 2016. A further conference in relation to the review of the Dredging
Award was held in Sydney on 4 August 2016 (the August conference) to discuss the issues
listed in the revised summary of submissions.12 AIMPE, the AWU and the MUA appeared at
that conference.
[19] On 7 November 2016 the Commission issued a Statement13 that attached a report
outlining the matters discussed at the August conference. That Statement included draft
directions setting out the process for dealing with the outstanding technical and drafting
matters for the Dredging Award. A revised exposure draft and a further revised summary of
submissions, reflecting the agreed position of the parties following the August conference,14
were published on 8 November 2016. Parties were given until 14 November 2016 to file any
comments on the draft directions or on the attached reports. No comments were received and
final directions were issued on 15 November 2016.
[20] On 21 November 2016 the MUA wrote to the Commission to withdraw claim 2. The
outstanding items are the subject of the 15 November 2016 Directions requiring the filing of
further material in December 2016. No further submissions were filed in respect of this
award.
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/dredging-summary-further-revised.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/dredging-summary-further-revised.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/dredging-summary-revised.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/dredging-summary-revised.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/dredging-summary.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/dredging-summary.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/dredging-summary.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/Comparison-dredging.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/Exposure-draft-dredging.pdf
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[21] Items 1, 3–4, 15–19 and 24 were agreed between the parties. Items 5 and 23 were
referred to the Part-time and Casual Employment Full Bench, but were not pursued in those
proceedings.
[22] As is apparent from the 7 November 2016 report, there are 13 issues that remain at
least partially unresolved and require determination.
Item 6 – Hours of work – span of hours
[23] The AWU submits that the exposure draft and corresponding clause in the current
award ‘allows workers to agree to work any number more hours than 12 at the ordinary rate of
pay, and without regard to the nature of the clause being about “day workers”’.15
[24] The exposure draft provision, which is based on the current Dredging award, is:
8.2 Span of hours—vessels fully operational
(a) Day workers
Hours of duty for day workers will consist of:
(i) 12 hours per day on each of seven days per week between 6.00 am and 6.00
pm; or
(ii) other starting and finishing times as may be mutually agreed.
[25] The AWU submitted that three enterprise agreements in the industry currently contain
provisions that limit the maximum number of hours to 14 hours followed by a 10 hour
break.16 The AWU submitted that a 14 hour day is standard in the dredging industry.
[26] The AWU suggested varying the clause as per the provisions in the Manufacturing
and Associated Industries and Occupations Award 201017 (Manufacturing Award). The
wording of clause 36.2(c) of the Manufacturing Award is set out below:
36.2 Ordinary hours of work—day workers
(c) The ordinary hours of work are to be worked continuously, except for meal
breaks, at the discretion of the employer between 6.00 am and 6.00 pm. The
spread of hours (6.00 am to 6.00 pm) 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.
(d) Any work performed outside the spread of hours must be paid for at overtime
rates. However, any work performed by an employee prior to the spread of
hours which is continuous with ordinary hours for the purpose, for example, of
getting the plant in a state of readiness for production work is to be regarded as
part of the 38 ordinary hours of work.
(emphasis added)
https://www.fwc.gov.au/documents/decisionssigned/html/2016fwc7768.htm
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[27] The AWU proposed the following draft variation to the Dredging Award:
(x) the spread of hours (6.00 am to 6.00 pm) 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 and covered by this award, or, in appropriate circumstances, between the
employer and an individual employee.
(x) Any work performed outside the agreed spread of hours must be paid for at overtime
rates in accordance with 13.1.
[28] It seems to us that the AWU’s proposed variation does not address the identified issue
with the existing clause, because it would not cap the number of hours on a single shift or
provide for a subsequent rest period, it only allows the span of hours to be varied, but does not
prescribe the maximum number of hours per day.
[29] In the absence of any submissions from other interested parties, the Commission has
considered the provisions about ordinary hours of work in other modern awards and the
relevant pre-modern instruments.
[30] In a number of 4 yearly review proceedings, interested parties have contended that the
presence of certain provisions in enterprise agreements is a basis for adopting those provisions
into the applicable modern award. Generally speaking, this contention has not been accepted.
For example, the Full Bench that considered the substantive variations proposed to the
Graphic Arts, Printing and Publishing Award 201018 noted that:
[59] Although the AMWU sought by general submissions to justify the variations sought, its
submissions primarily focused on an argument that the Award should be varied to reflect these
conditions because these conditions were the pre-2009 standard for the metropolitan daily
newspaper sector. In other words, the AMWU urged us to approach the matter in the same
manner as the Full Bench in the Award Modernisation Decision approached the task of
creating the Award in 2010 but having regard for the first time, to the standards in the
metropolitan newspaper sector. We consider that if we adopt this approach then it is not the
standards applying to the sector in general which must be considered but rather the standards
as reflected in the pre-2009 industrial instruments which applied to the sector. The relevant
industrial instruments in this context are the awards. Absent some broader merit based case,
we do not consider that the enterprise agreements or over award arrangements which may
have been in place in the sector to be relevant.19 (emphasis added)
[31] As noted in the AWU’s submission, the Dredging Industry (AWU) Award 1998, the
Marine Engineers (Non Propelled) Dredge Award 1998 and the Maritime Industry Dredging
Award 199820 contained similar provisions regarding hours of duty being varied by
agreement. The difference between the pre-modern instrument provisions and the modern
award provision is that the “pre-reform awards allowed for the variation of the aggregate
wage and leave entitlements to reflect the change in ordinary working hours”.21
[32] A comparable clause in the Coal Export Terminals Award 201022 is:
16.2 Employees other than shiftworkers
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(a) Employees, other than shiftworkers, may be required to work up to 10
ordinary hours per day, between the hours of 6.00 am and 6.00 pm Monday to
Sunday. If the employer and a majority of affected employees agree, up to 12
ordinary hours per day may be worked.
(b) All ordinary hours worked by an employee other than a shiftworker on the
following days will be paid for at the following rates:
[33] We agree that the modern award has not replicated the requirement to remunerate
additional hours of work undertaken subject to an agreement to vary the ‘span of hours’
provisions that appeared in the pre-reform instruments. We note that the AWU’s proposed
variation does not limit or vary the number of hours that may be worked in a single shift. This
was also noted at the conference on 4 August 2016.23 By varying the span of hours by one
hour at each end, it expands the span of time when ordinary hours may be performed; it does
not expand the number of ordinary hours that an employee may be required to work before
overtime provisions are triggered. The only other protection is that clause 8 operates subject
to clause 9.4–Maximum hours. Therefore, any remaining concerns about avoiding excessive
hours may require further consideration and additional variations.
[34] Our provisional view is that the exposure draft span of hours clause should be varied
as follows:
8.2 Span of hours—vessels fully operational
(a) Day workers
(i) Hours of duty for day workers will consist of 12 hours per day on each of
seven days per week between 6.00 am and 6.00 pm.
(ii) The ordinary hours of work are to be worked continuously, except for meal
breaks, at the discretion of the employer between 6.00 am and 6.00 pm. The
spread of hours (6.00 am to 6.00 pm) 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.
(iii) Any work performed outside the agreed spread of hours must be paid for at
overtime rates in accordance with clause 13.1.
[35] Interested parties have until 4.00pm Friday, 24 November 2017 to provide any
feedback on this provisional view. In the absence of any objection the variation will be made.
Items 7–11 – Breaks
[36] As noted in the Report, the exposure draft of 15 January 2016 included a question
from the Commission about how clauses 9.2(c), 9.2(e) and 9.3 interact. The intention of the
clauses was discussed at the conference on 4 August 2016.24
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/exposure-draft-dredging.pdf
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[37] In the revised exposure draft published on 8 November 2016, the Commission
redrafted clauses 9.1, 9.2 and 9.3.
[38] In the absence of any further feedback from the interested parties, the redrafted clauses
will now be adopted.
Item 12 – Weekly aggregated wage
[39] The FWO raised an issue about the use of the phrase ‘weekly aggregated rate’ in
clause 14.3 of the Dredging Award and whether, in the absence of a definition, it was clear
what entitlements had been aggregated.25
[40] In the initial exposure draft of the Dredging Award parties were asked to comment on
whether the award should include a definition of ‘aggregated rate’.26 It was suggested in the
exposure draft that a definition may clarify how the rate was calculated and improve
transparency when the rates were adjusted following the Annual Wage Review.
[41] Following the conference on 30 March 2016 the MUA proposed that the source of
clause 14.3 of the Dredging Award was clause 3 of Part C of Maritime Industry Dredging
Award 1998.27 They provided the following extract of clause 3.1.2 of the Maritime Industry
Dredging Award 1998:
‘ The aggregate wages prescribed in this Part are minimum rates and have been fixed on the
basis that, except where otherwise provided in the award, they take account of all aspects and
conditions of employment both general and Particular and incorporate the dredging industry
allowance.’
[42] The MUA provided a further submission proposing the introduction of a new
definition into the award in the following terms
‘ Aggregate rate means the minimum rate that has been fixed on the basis that, except where
otherwise provided in the award, it takes account of all aspects and conditions of employment
both general and particular and incorporates the dredging industry allowance.’28
[43] The AWU submitted that a definition of ‘aggregated rate’ should be inserted to clarify
how the wage is calculated. AWU also queried why there were no shiftworker rates for
‘Trailer master’ and ‘Chief engineer’ classifications.29
[44] By correspondence dated 7 October 2016 the Commission asked the parties to confirm
how the aggregated wages ought to be calculated.30 The Commission attached a submission
from the MUA from 2009 setting out how the rates were originally calculated in the pre-
reform award. The Commission noted that the relationship between the minimum and
aggregate rates has been altered due to flat dollar increases to the minimum rates. The
Commission asked the parties to confirm whether the MUA’s methodology is correct and, if
so whether the modern award rates should be adjusted accordingly. The Commission attached
a document setting out the current rates contained in the Dredging Award and the rates as they
would be if adjusted using the MUA methodology.
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/exposure-draft-dredging-revised.pdf
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[45] In reply to the Commission’s correspondence the MUA confirmed that the MUA
methodology set out by the Commission was correct and should be used to adjust the modern
award rates.31
[46] Our provisional view is that the exposure draft will be varied to adopt the MUA’s
methodology. Interested parties have until 4.00pm Friday, 24 November 2017 to provide
any feedback on this provisional view. In the absence of any objection the variation will be
made.
Item 13 – Higher duties
[47] The AWU submitted that the “higher duties” rate is payable where an employee is
required to perform the duties of a position at a higher classification level however there may
be instances where only some duties are required to be performed. The AWU cited a number
of pre-reform awards that entitled employees to the higher rate when “any duties carrying a
higher rate” were performed.32
[48] Subsequently, the Commission undertook and published research about the ‘higher
duties’ clause and its history.33
[49] Without re-producing significant excerpts from that research, we agree that AWU’s
concern may be resolved by inserting the word ‘any’ in place of the word ‘the’ as follows:
10.4 Higher duties
(a) An employee engaged to perform the any duties of a position at a higher
classification level for more than two hours during any one day will be paid
the rate applicable to that higher level for all work done on that day.
(b) An employee engaged to perform the any duties of a position at a higher
classification level for two hours or less during one day will be paid the higher
rate for the actual time worked at that higher level.
[50] Clause 10.4 of the exposure draft will be varied accordingly.
Item 14 – Dual certificate allowance
[51] The AWU submitted that the dual certificate allowance in clause 11.2(b) of the
exposure draft should be expressed as an hourly rate as well as a weekly rate.34
[52] The submission was considered at the Conference on 4 August 2016.35 The allowance
is an all purpose allowance and is therefore captured in the wage tables in Schedule A of the
exposure draft.36 No variation will be made to clause 11.2(b) the exposure draft.
Item 20 – Shiftwork penalties
[53] The AWU submitted that the wording of clause 13.3(a) of the exposure draft was
confusing.37 The AWU proposed amending the exposure draft clause and clarified its position
at the conference on 4 August 2016:38
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014223-dredging-item13-higher-duties-provision.pdf
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13.3 Shiftwork penalties
(a) A shiftwork loading of 30% of the ordinary hourly rate is payable to an
employee working shiftwork and which shift commences at or after 6.00 pm.
on any Monday to Friday inclusive.
[54] The AWU noted that ‘Shiftworkers’, as defined in clause 8.2(b), include workers
performing day shifts and night shifts. However, as it is currently drafted, clause 13.3(a) will
not clearly apply to day workers.39 The current drafting of the shiftworker penalties clause
would mean that shiftworkers performing shiftwork on weekends would not be paid the shift
loading.
[55] Under clause 20, ordinary hours may be performed on any day of the week for fully
operational vessels and on Monday to Friday for vessels that are not fully operational. This
does not assist in clarifying the intention of clause 13.3.
[56] In the absence of any submissions from other interested parties, we have considered
the provisions in the current modern award and its predecessors.
[57] The current Dredging Award provides:
22.3 Shiftwork penalties
An employee working shiftwork and which shift commences at or after 6.00 pm on
any Monday to Friday inclusive, will be paid a loading of 30% of the standard rate per
hour. If a three shift per day system is worked the additional rate of 15% will be
payable in respect of the afternoon and night shifts.
[58] Having regard to the other agreed changes, the current shift penalties clause provides
the same entitlements as the exposure draft. The exposure draft has not created any ambiguity
or uncertainty in that regard. As such, it is appropriate to consider the pre-reform award
provisions.
[59] By way of example, the Dredging Industry (AWU) Award 1998 provided the
following:
3.2.2 Employees working shift work and which shift commences at or after 6.00 p.m. on any
Monday to Friday inclusive, shall be paid for such work at the additional rate of 30%
calculated on the ordinary rates. This subclause shall apply where two shifts per day are
worked. If a three shift per day system is worked the additional rate of fifteen per cent shall be
payable in respect of the afternoon and night shifts.
[60] Similar provisions could be found in the the Marine Engineers (Non Propelled)
Dredge Award 1998 and the Maritime Industry Dredging Award 1998. On that basis any
variation to the exposure draft provisions would be a substantive variation, not a technical and
drafting amendment.
https://www.fwc.gov.au/documents/documents/modern_awards/award/ma000085/ma000085-04.htm#P118_8542
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[61] In the absence of a merit based argument, we are not satisfied that the variation
proposed by the AWU is necessary or appropriate. Clause 13.3(a) of the exposure draft will
not be varied.
Item 21– annual leave loading
[62] The AWU indicated that it would seek the insertion of an annual leave loading
provision in clause 14 of the exposure draft.40 The AWU submitted that 17.5% is a national
standard in Australia and the Dredging Award is one of only three modern awards that do not
include annual leave loading. The AWU made similar submissions about the Book Industry
Award 201041 and Alpine Resorts Award 2010.42
[63] The AWU unsuccessfully sought an identical variation to the Dredging Award as part
of the transitional review of modern awards in 2012.43 The AWU made a number of
submissions in support of that claim.
[64] At the Conference on 4 August 2017, the AWU indicated that it would rely on the
material already submitted in support of the proposed variation.44
[65] In the transitional review of modern awards, the majority of the Annual Leave Full
Bench decided not to make the variation sought by the AWU. The majority decision noted
that the claim may be “more appropriate for consideration in the four year review”.45
[66] The minority decision held that annual leave loading should be inserted into the
modern awards that were the subject of the AWU’s claim:46
‘The absence of an entitlement to annual leave loading in these awards is unexplained and in my
view unfair and unwarranted. The AWU could be criticised for not raising the matter more
specifically during the award modernisation process. It has faced up to this and provided an
explanation. But any failure on its part should not be a reason to deny its case now when merit
is demonstrated. I consider that the AWU has established that the modern awards objective is
furthered by the inclusion of an entitlement to annual leave loading in these awards and has
made out a case on the merits for its inclusion into the three awards. Turning a blind eye to the
intrinsic merit of the applications is not consistent with the obligation to conduct a review of
the awards.’
[67] On that basis, we have considered the provisions of the three pre-reform awards
mentioned previously in this decision as well as any consideration given to this issue during
the award modernisation proceedings.47
[68] The three pre-reform awards are silent on annual leave and annual leave loading.
During award modernisation, the parties’ draft award and the Commission’s exposure draft
were based on the provisions contained in the three pre-reform awards, which are more or less
identical. Annual leave was included in the modern award as per the NES but annual leave
loading was not adopted.
[69] The AWU previously submitted that the omission of annul leave loading was an
inadvertent error because most other modern awards contained annual leave loading
provisions.48 We do not agree. The inclusion of annual leave loading provisions in other
[2017] FWCFB 5536
15
modern awards does not create an automatic basis for introducing the entitlement in the
Dredging Award. Any such claim must be merit based. As noted previously, a relevant
consideration is what the industry standard was prior to 2010.
[70] The AWU submissions previously noted that modern awards covering related
industries include provisions about annual leave loading or provide a more generous leave
accrual rate.49 These include the Port Authorities Award 2010;50 the Seagoing Industry Award
2010;51 and the Maritime Offshore Oil and Gas Award 2010.52
[71] Clause 22 of the Port Authorities Award provides annual leave loading of 20% for
shiftworkers and 17.5% for other workers. Clause 19 of the Maritime Offshore Oil and Gas
Award and clause 20 of the Seagoing Award provide unique leave accrual calculations to
compensate for the hours of work and requirement to be away from home for long periods of
time.
[72] We understand that the nature of work and the disabilities associated with the
Dredging Award are comparable to the other maritime sectors. The unique element of the
Dredging industry is that it tends to be project work. There is no evidence before us about
whether these types of employment arrangements mean employees are more or less likely to
take annual leave or be paid out any accrued entitlements once the project is completed. These
industry practices need to be considered properly when developing an annual leave loading
provision or a unique annual leave accrual provision.
[73] The introduction of an annual leave loading provision would be a substantive variation
to the Dredging Award and would introduce an entitlement that does not appear to have been
a feature of past awards in respect of this sector.
[74] In terms of the modern awards objective, there is no evidence before us that the annual
leave provisions in the Dredging Award are not meeting the modern awards objective. It
could be argued that the loading would be additional remuneration for employees who work
unsociable hours and shiftwork as per s. 134(da) of the Act. However it could equally be said
that the introduction of annual leave loading would be an increased cost to employers which is
a relevant consideration under s. 134(f) of the Act.
[75] We are not persuaded that there is sufficient material before us to determine the issue,
and accordingly do not propose to make the change sought, at this time. If a party wishes to
pursue the variation they can make a separate application to that effect. For now, we will not
vary clause 14 of the exposure draft to include annual leave loading.
Item 22 – annual leave
[76] As part of the exposure draft process, the Commission asked interested parties to
consider whether the definition of ‘Shiftworker’ in Schedule E applies for the purpose of the
National Employment Standards.
[77] In response to that question, the MUA submitted that the work pattern in clause 8.2(b)
should be used for the purpose of the NES.53 The AWU agreed with the AWU’s submission.54
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16
[78] The MUA indicated that the Full Bench could determine this matter on the papers.55
[79] Based on the response from the AWU and MUA, it does not appear any variation to
the exposure draft is required because the shift pattern in clause 8.2(b) will be used as the
basis for calculating annual leave entitlements in clause 14 as per the National Employment
Standards.
Item 25 – Definitions
[80] In response to the AWU’s submission, the Commission published a revised exposure
draft that replaced the words ‘laid up’ with ‘not fully operational’.56
[81] Parties were subsequently asked to consider whether the amendment to the definition
of ‘laid up’ and replacing the words ‘laid up’ with ‘not fully operational’ throughout the
award gives rise to any practical issues.
[82] No further submissions were received from the interested parties. We will adopt the
change in terminology and invite interested parties to make further submissions by 4.00pm
Friday, 24 November 2017 if they have any concerns about the impact of the change.
[83] The summary of submissions was republished on 10 October 2017. There are no other
outstanding items regarding the Dredging Award.
2.3 Educational Services (Post-Secondary Education) Award 2010
[84] An exposure draft based on the Educational Services (Post-Secondary Education)
Award 201057 (Post-Secondary Award) was published by the Commission on 18 December
2015. Pursuant to directions, by 5 May 2016, submissions had been received from a number
of parties which identified technical and drafting issues with the exposure draft. A conference
was convened before Commissioner Johns on 10 May 2016.58 Following the conference, the
Commission published an updated summary of submissions, followed by a revised exposure
draft dated 3 June 2016 that incorporated the changes agreed at the conference. A further
updated summary of submissions was published on 10 October 2017.
[85] A mention held before Justice Ross on 7 June 2016 confirmed that most issues had
either been resolved by consent or were substantive in nature. The substantive issues in this
exposure draft have been referred to a separately constituted Full Bench in AM2015/6.59 The
parties noted that some technical and drafting issues may not be able to be resolved until the
outcome of that substantive Full Bench. At the conclusion of the mention before Justice Ross,
the parties were directed to review the revised exposure draft and write to the Commission
outlining any outstanding drafting or technical issues (those which were not subject to the
substantive matters).
[86] The NTEU submitted that all changes indicated in the revised exposure draft published
3 June 2016 properly reflected the discussions of the parties with the exception of the
following two clauses.60
https://www.fwc.gov.au/sites/awardsmodernfouryr/submissions/Exposure-draft-post-secondary-education-revised.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/education-post-secondary-summary-revised-101017.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/submissions/Exposure-draft-post-secondary-education-revised.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/submissions/Exposure-draft-post-secondary-education-revised.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/education-post-secondary-summary-010616.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/dredging-summary-further-revised-101017.pdf
[2017] FWCFB 5536
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Item 12 – Academic Teachers – casual rates
[87] The NTEU submit that the second reference in clause 10.1(b) to ‘Marking as a
supervising examiner’ should be deleted rather than the first reference in the clause. That is,
the reference to ‘marking as a supervising examiner’ that should be deleted is the one which
includes the words “(where academic holds a relevant doctoral qualification)”.61
[88] The NTEU also raised this technical and drafting issue in submissions regarding the
Higher Education Industry – Academic Staff – Award 2010 exposure draft. The Group of
Eight Universities (Go8), in correspondence received 10 June 201662 noted that it agreed with
the submissions of the NTEU in relation to this issue in the Higher Education Industry –
Academic Staff – Award 2010, however it is unclear from the submission whether the Group
of Eight Universities agrees with the NTEU position in relation to the Educational Services
(Post-Secondary Education) Award 2010 revised exposure draft.
[89] Interested parties have until 4.00pm Friday, 24 November 2017 to confirm
submissions about amended drafting.
Item 25 – Public Holiday substitution
[90] The NTEU submits that clause 20.2 of the revised exposure draft (“Substitution of
public holidays by agreement”) is inconsistent with the NES.63
[91] The NTEU also raised this technical and drafting issue in relation to the Higher
Education Industry – Academic Staff – Award 2010 and the Higher Education Industry –
General Staff Award 2010 (the Higher Education awards). In correspondence dated 10 June
201664, the Go8 submitted that (in respect of the Higher Education awards), it believes the
existing clauses can be retained. However, Go8 submitted that if the clauses were to be
addressed they should be dealt with by this Full Bench.
[92] This Full Bench in the July 2017 decision65 directed the NTEU to respond to the Go8
submission (in relation to the Higher Education awards) that public holiday substitution
should be dealt with by this Full Bench.66 In correspondence received 28 July 201767, the
NTEU agreed with the Go8 that this issue should be dealt with by this Full Bench.
[93] It appears the issue raised in relation to the Higher Education awards is substantially
the same as that raised in the Educational Services (Post-Secondary Education) Award 2010
revised exposure draft. As such, it is our provisional view that this matter will be dealt with
by this Bench. Should any party wish to make a submission regarding this provisional view
they are to do so by 4.00pm Friday, 24 November 2017.
Items 8, 10, 13–16, 19, 24, 29
[94] According to the summary of submissions published on 10 October 2017, these items
remain outstanding. Interested parties have until 4.00pm Friday, 24 November 2017 to
confirm submissions about these outstanding items.
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/education-post-secondary-summary-revised-101017.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/submissions/Exposure-draft-post-secondary-education-revised.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/submissions/Exposure-draft-post-secondary-education-revised.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/submissions/Exposure-draft-post-secondary-education-revised.pdf
[2017] FWCFB 5536
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2.4 Educational Services (Schools) General Staff Award 2010
[95] An exposure draft based on the Educational Services (Schools) General Staff Award
201068 (General Staff Award) was published on 18 December 2015. Submissions and
submissions in reply on technical and drafting issues were filed by the parties on or before 6
May 2016. A summary of submissions was published on 26 May 2016.
[96] A number of substantive issues in this award were referred to a separately constituted
Full Bench in AM2015/6 in October 2015.69
[97] The Independent Education Union of Australia (IEU) made application to vary the
General Staff Award. The application was heard on 21 December 2015 and an order to vary
the award was issued on that day.70 This order reflected the consent position of the parties.
[98] A further hearing was held before Justice Ross on 7 June 2016 to address the
outstanding technical and drafting issues. There were a number of issues agreed to or not
opposed at the hearing. The parties agreed that the remaining outstanding issues could be
determined on the material already filed.71
[99] A revised summary of submissions was published on 10 October 2017. Items 1, 3, 4,
5, 9, 13, 18, 19, 20, 22 were either agreed or not opposed. The Commission adopts the agreed
position on these issues as set out in the revised summary of submissions.
[100] Items 7, 8, 15, 16, 17, 21 were referred to the Full Bench dealing with matter
AM2015/6. These issues have been resolved by this Full Bench and are reflected in Order
PR575283 issued 21 December 2015.
[101] Items 23, 24, 25, 26 and 28 were not discussed during the hearing on 7 June 2016.
Parties are asked to indicate whether they intend to press these matters by no later than
4.00pm Friday, 24 November 2017.
[102] Item 27 was referred to the Full Bench dealing with AM2015/6 (see Directions issued
- Schedule A.2, Item 9).
[103] Items 2, 6, 10, 11, 12, 14 of the summary of submissions are outstanding issues
requiring determination. As mentioned previously, the parties have agreed that the remaining
outstanding issues could be determined on the material already filed.72 These outstanding
issues are dealt with below.
Item 2 – Part-time employees
[104] The AIS and the IEU seek the inclusion of a cross reference at clause 6.4(a)(ii) of the
exposure draft to clause 7 of the exposure draft. Clause 6.4(a)(ii) of the exposure draft deals
with part-time employees, while clause 7 deals with leave without pay during non-term
weeks. It is submitted that the cross reference should be included for clarification and to make
the award easier to understand.73
[105] In their reply submission, AFEI outlined that the proposed amendment is unnecessary
as it does not clarify the operation of the subclause.74 AFEI confirmed at the conference on 7
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/educational-general-staff-summary-revised-101017.pdf
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/educational-services-general-staff-summary.pdf
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/exposure-draft-educational-services-general.pdf
[2017] FWCFB 5536
19
June 2016 that their position is that the cross reference is unnecessary, however they outlined
they were ‘not completely opposing it’.75
[106] The change sought by the AIS and the IEU is outlined below:
‘6.4 Part-time employees
(a) A part-time employee is engaged to work:
(i) less than 38 ordinary hours per week or less than an average of 38 hours per week;
or
(ii) for less than the full school year pursuant to clause 7—Leave without pay during
non-term weeks,
and has reasonably predictable hours of work.’
[107] While AFEI submits the variation is unnecessary, there is no submission before us that
the inclusion of a new cross-reference will change the operation of the clause or create some
ambiguity.
[108] We agree that the addition of the cross-reference will clarify the operation of the
clause. The exposure draft will be updated according to the AIS and IEU’s draft.
Insertion of examples (Item 6 – calculating annual salaries and Item 10 – rostering)
[109] The AIS and the IEU seek the insertion of an example of an adjusted salary into clause
7 of the exposure draft. Clause 7 deals with leave without pay during non-term weeks. In their
submission of 14 April 2016 the AIS and the IEU included their own example of an adjusted
salary. They submit76 that ‘the example in this instance graphically presents in simple form a
typical salary calculation for an employee working term weeks only’. The example proposed
is set out below:
Example – Adjusted annual salary (full-time employee)
For example:
Brad is a full-time employee classified at Level 3.1. The annual rate of pay for a fulltime
employee working 52.18 weeks of the school year is $39,933.
Brad is required to take leave without pay during non-term weeks.
As there are 39.4 term weeks in the school year, Brad is required to work 39.4 term weeks.
The formula in clause 7.2(b) is: A = C x (working weeks + 4 weeks annual leave)
52.18
Calculating the adjusted annual salary:
Step1: (working weeks + 4 weeks annual leave) = 39.4 + 4 = 43.4
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Step 2: 43.4/52.18 = 0.8317
Step 3: $39,933 x 0.8317 = $33,212
Adjusted annual salary = $33,212.
[110] The AIS and the IEU also seek the insertion of an example at the end of clause 10 of
the exposure draft. Clause 10 deals with ordinary hours of work for shiftworkers.
[111] The example is extracted below:
Example – Broken shift (part-time employee)
Janet is a part-time employee classified at Level 3.1. Her hourly rate of pay is $20.14.
Janet starts work at 7.00 am Thursday and finishes work at 9.00 am on Thursday. She
recommences work at 2.00 pm on Thursday and works until 6.00 pm on Thursday.
Janet will:
work 6 hours of ordinary time
work a broken shift.
Calculating the ordinary time pay including the broken shift penalty:
Multiply the hourly rate of pay by the broken shift penalty and by the number of ordinary
hours worked = $20.14 x115% x 6 = ($23.16) x 6 = $138.96
Janet is paid a total of $138.96 for Thursday.
NOTE: Calculations in this example are based on the rounded hourly rates in Schedule B.
[112] The AFEI opposes the insertion of both examples outlined above, but advances no
reasons as to why they should not be included in the award.77
[113] The AFEI and other interested parties had the opportunity to respond to the AIS and
IEU’s submission to suggest alternative examples or give reasons why examples should not
be adopted. We have not received any submissions to that effect.
[114] We agree that including these examples will clarify the operation of the annual salary
clause and the broken shift provision. In the absence of any submissions opposing the
inclusion of the examples we will include them. The exposure draft will be varied to include
the examples drafted by the AIS and IEU.
Item 11 – Rostering
[115] ABI seek the reinsertion of the shiftwork definition into clause 10 of the exposure
draft. They submit the following:
‘We consider that the definitions of shiftwork, which currently appear at clause 25.2 of the
current Award, should be inserted back into clause 10 of the Exposure Draft as it deals with
ordinary hours for shiftworkers, rather than appearing at clause 15 of the Exposure Draft.
[2017] FWCFB 5536
21
Alternatively, there may be merit in having the provision appear at both clauses 10 and clause
15. In our view, it is confusing that a clause titled “Ordinary hours of work – shiftworkers” not
actually contain the ordinary hours of work for shiftworkers.’78
[116] In their reply submission of 5 May 2016, the AIS and IEU submit the proposed
amendment is not necessary.79
[117] We agree that duplicating the definition of shiftwork in two clauses is unnecessary;
however we do not want to create confusion or ambiguity through the redrafting process so
some amendment to the exposure draft is necessary.
[118] Rather than including the shiftwork definition in two clauses, we will amend clause 10
of the exposure draft to include a cross-reference to clause 15.1 as follows:
10.1 Ordinary hours for shiftwork
The definitions for shiftwork are provided in clause 15.1. The ordinary hours for
shiftwork will:
(a) be worked continuously each shift (except for broken shifts and meal breaks);
(b) not exceed 10 hours, inclusive of a meal break in any single shift; and
(c) be rostered in accordance with clause 10.2.
Item 12 – Altering the roster
[119] The AIS and the IEU submit that clause 10.2(c)(i) of the exposure draft be subject to
the provisions of clause 24.2 to indicate the existence of additional obligations in some
instances. Their proposed alteration to clause 10.2(c)(i) of the exposure draft is as follows:
‘10.2 Rostering
…
(c) Altering the roster
(i) A roster may be altered by mutual consent at any time or by amendment of the
roster by the employer on seven days’ notice subject to the provisions of clause 24.2 –
Consultation about changes to rosters or hours of work.’
[120] AFEI are opposed to the above amendment and submit ‘a change of roster by mutual
consent or with 7 days’ notice, will not invoke the consultation process in clause 24.2 of the
exposure draft. Including a reference to this clause is likely to lead to employers’
misunderstanding their obligations.’80
[121] We agree with the AFEI’s submission that varying clause 10.2(c)(i) as per the AIS and
IEU’s submission may create uncertainty or ambiguity about the consultation requirements.
We will not make the proposed variation to clause 10.2(c)(i) of the exposure draft.
[2017] FWCFB 5536
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Item 14 – Broken shifts
[122] In their written submission of 15 April 2016, AFEI submit that clause 10.2(d)(ii) of the
exposure draft (which deals with broken shifts) incorporates a substantive change from the
current award.81
[123] Clause 10.2(d)(ii) of the exposure draft (dealing with ordinary hours of work for shift
workers) is in the following terms:
‘(d) Broken shifts
(i) An employee may be rostered to work ordinary hours in a broken shift which is
defined as a shift that is rostered in two periods of duty, exclusive of breaks, per day.
(ii) Where an employee is rostered to work a broken shift, the employee will be paid
in accordance with the appropriate penalty in clause 15.4 with a minimum payment as
for two hours for each period of duty.’
[124] AFEI submit that clause 15.4 of the exposure draft (dealing with penalties and
overtime) excludes casual employees from this penalty rate and the two hour minimum
payment for each period of duty.82
[125] Clause 15.4 of the exposure draft is in the following terms:
‘15.4 Broken shifts
(a) An employee, other than a casual, rostered to work ordinary hours in a broken shift will be
paid 115% of the minimum hourly rate with a minimum payment as for two hours for each
period of duty.
(b) The maximum spread between the start of the first period of duty and the end of the second
period of duty for a broken shift is 12 hours. Any hours in excess of this 12 hour spread will
be paid for as overtime.
(c) The provisions of clause 15.4(b) do not apply to a boarding supervision services employee
who is provided with reasonable accommodation including living quarters, fuel and light, and
available to the employee for their exclusive use for 52 weeks of the year, at no cost to the
employee.’
[126] AFEI submits that ‘clause 10.2(d)(ii) of the Exposure Draft should be amended to
clarify that the penalty and minimum payment in clause 15.4 applies to employees other than
casual employees.’83
[127] In their reply submission of 5 May 2016 the AIS and IEU oppose the variation
proposed by the AFEI and submit it would change the operation of the award. They submit
that the change proposed ‘makes it clear that a casual employee is not entitled to be paid the
broken shift penalty.’84 They submit that clause 6.5(d) (i) of the exposure draft makes it clear
that a casual employee is engaged and paid for a minimum of two hours per shift. This clause
corresponds with the first sentence of cl.10.5(c) of the current award.
[2017] FWCFB 5536
23
[128] They further submit that these two clauses of the exposure draft, when read together,
replicate the employment arrangements under the current award. They say, that is, a casual
employee engaged to work a broken shift would be engaged for two engagements, each of not
less than two hours, during the ordinary spread of hours. The casual employee is entitled to be
paid the casual loading but has no entitlement to be paid the broken shift penalty.
[129] We agree with the AIS and IEU’s submission that the intention of clause 15.4(a) is to
exclude casuals from receiving the 15% loading for a broken shift because they receive the
25% casual loading under clause 6.5(b).
[130] If the AFEI’s submission is accepted, it may create ambiguity about the minimum shift
entitlements for casuals because a two hour minimum engagement applies to casuals by virtue
of clause 6.5(c). The remaining provisions of clause 15.4 apply equally to casuals as to other
employees. Accordingly, there is no need to vary the exposure draft.
2.5 Fitness Industry Award 2010
[131] On 18 December 2015 the Commission published an exposure draft based on the
Fitness Industry Award 201085 (Fitness Award), together with a comparison document
showing the changes to the structure and language of the award. Interested parties were
invited to file submissions about drafting or technical issues in the exposure draft.
Submissions were received from the AWU, ABI, Gymnastics Australia, Tennis Australia,
Fitness Australia, Aussie Aquatics, Swim Australia and Australian Swimming Coaches &
Teachers Association Ltd, Business SA and the FWO. A conference was conducted on
30 May 2016. With the exception of the FWO and Swim Australia and Australian Swimming
Coaches & Teachers Association Ltd, it was attended by representatives for each of those
organisations. AFEI also participated. Deputy President Clancy published a report to the Full
Bench on 3 June 2016 that set out a number of the proposed variations to the exposure draft
that were agreed, a number that were not agreed and a list of items from the submissions that
would be the subject of further discussions between the interested parties. The report also
noted that items 4 and 12 were withdrawn or no longer pressed.
[132] A further conference was held on 9 August 2016 to deal with the outstanding issues. It
was attended by Gymnastics Australia, Tennis Australia, Fitness Australia, the AWU, the
AFEI and Australian Swim Schools Association Ltd (ASSA). A second report to the Full
Bench was made by Deputy President Clancy on 25 August 2016. While some of the
outstanding items were resolved, some were still disputed and some required further
consideration and discussion. Directions were issued on 14 December 2016 and parties were
required to file further material in January 2017.
[133] The material filed identified a number of outstanding issues. A revised summary of
submissions was published on 17 February 2017, incorporating submissions lodged on or
before 16 February 2017. A further updated summary of submissions was published on
10 October 2017.
[134] Items 1, 2, 2B, 3, 5, 7, 8, 9A, 13, 14, 15, 16A, 16B were either agreed or not opposed.
The Commission adopts the agreed position on these issues as set out in the summary of
submissions.
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/fitness-subs-summary-revised-101017.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/fitness-subs-summary-revised170217.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/fitness-subs-summary-revised170217.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014227-report-250816.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014227-report-250816.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/AM2014227-reporttothefb-030616.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/AM2014227-reporttothefb-030616.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/Comparison-fitness.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/Exposure-draft-fitness.pdf
[2017] FWCFB 5536
24
[135] A number of items of the revised summary of submissions are outstanding and require
determination. We deal with these below.
Items 2A and 32 – Coverage and definitions
[136] Clause 3.4 of the exposure draft provides that the award does not cover an employee
who is employed by the employer to provide administrative and other operational support
outside of a fitness centre. The language is identical to that used in the coverage clause of the
Fitness Industry Award 2010.
[137] The ASSA submits that clause 3.4 of the exposure draft conflicts with the
classification definitions at levels 1, 2, 3, 6 and 7 contained within Schedule A.86 The
classification definitions relate in part to functions reasonably falling within the activity of
providing ‘administrative and other operational support’. The ASSA considers this to be a
critical issue as these classifications, and the modern award generally, are widely used in the
swim school sector to engage support and managerial staff — and clause 3.4 restricts
coverage of the award by effectively excluding organisations such as aquatic centres, indoor
sports centres, and providers of ‘aquatic services or classes’.
[138] The ASSA originally submitted that the clause should be amended to either remove
the reference to ‘outside of a fitness centre’, or alternatively, expanded to cover the full range
of activities that are listed in (b) to (k) of the definition of ‘Fitness Industry’ in clause 3.2. In
doing so, the ASSA suggested clause 3.2 would reflect industry custom and practice generally
and specifically in regards to swim school operators and their workforce. The only other party
to provide a submission on the issue (GA) notes the proposed wording may be unclear in how
it extends to providers of gymnastic services.87
[139] In later submissions dated 20 January 2017, the ASSA suggest that the award would
be enhanced by the inclusion of a definition of ‘centres’ in Schedule G – Definitions in the
following terms:
‘For the purposes of the Classification Definitions appearing in Schedule A – centres’ shall
mean locations, organisations or activities, as listed in subclause 3.2 under the definition of
fitness industry.’88
[140] The ASSA also suggest the award would be enhanced by the incorporation of a new
sub clause 3.4 in the following terms:
‘This award does not cover an employee who is employed by the employer to provide
administrative and other operational support outside of fitness centres, group fitness
organisations, weight loss/control centres, aquatic centres, indoor sports centres, golf driving
ranges, dance centres, martial arts centres, recreational camps, tennis clubs and centres.’89
[141] The ASSA submit the two proposed amendments would avoid uncertainty and
ambiguity as to the intended coverage of the award, affirming the operational arrangements
currently applying in the swim school sector.90 Further, the amendments would not
disadvantage any party, or unsettle clearly established award demarcations in other allied
[2017] FWCFB 5536
25
sectors. The ASSA submit the proposed amendments are consistent with requirements of
s.134(a), (f) and (g) of the Modern Award Objectives in that:
the need to operate under a multiplicity of awards would place a significant burden
on organisations commonly found in this sector, which would ultimately see costs
incurred flowing through to the consumer; and
the Commission, in incorporating the proposed amendments to address deficiencies
in the drafting of the award, would be applying principals articulated by Senior
Deputy President Polites in Re. Public Service (Non Executive Staff – Victoria)
(Section 170MX) Award 2000 to remedy a ‘state of not being definitely known or
perfectly clear, doubtfulness or vagueness’.91
[142] The ASSA’s proposed amendments are submitted on the basis they affirm current
operational arrangements in the swim school sector. It is unclear as to whether this is also the
case for gymnastics or any of the other activities coming within the definition of fitness
industry in clause 3.2 but we note there has been no opposition to the ASSA’s proposal
submitted to the Full Bench.
[143] Having regard to these factors and noting the duties contained within the award’s
classification definition, we are persuaded that the approach advocated by the ASSA is
appropriate. We have had particular regard to sections 134(1)(f) and 134(1(g) of the Modern
Awards Objective in coming to this conclusion and consider it desirable to avoid the
administrative burden and potential confusion that could arise from having multiple awards
applying in the fitness industry.
[144] Rather than adopt the multiple amendments proposed by the ASSA, we propose to
delete the word ‘fitness’ from clause 3.4 and insert a definition of ‘centre’ in Schedule G –
Definitions as follows:
‘centre means a venue or location at which operations in the fitness industry are conducted.’
[145] We otherwise propose to ensure that the definition of ‘fitness industry’ in both clause
3.2 and the Schedule G – Definitions is the same by amending Schedule G-Definitions.
Items 11A and 30 – Allowances for part-time employees
[146] Clause 11.1 of the exposure draft provides that employers ‘…must pay to an employee
the allowances the employee is entitled to under this clause’. There is no equivalent provision
within the current modern award. Schedule C.1 of the exposure draft is a summary of wage
related allowances, and is similar in content to the allowance sheet linked to the current
modern award.
[147] The ASSA submits that the following additional wording should be added prior to the
first full stop in clause 11.1: ‘, provided that employees engaged under sub-clause 7.3 (as part-
time), shall be paid all allowances on a pro-rate, hourly, basis’.92 To ensure consistency
between the provisions and to accommodate part-time employment, the ASSA suggest
Schedule C.1 may need redrafting to facilitate payments of less than a ‘week’ or a ‘day’.93
The ASSA claims the amendments address uncertainty about payment of allowances to part-
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time employees arising from the current form of clauses 7.3, 11.1 and Schedule C of the
exposure draft. No other submissions have been received in relation to this specific proposal.
[148] The issue of payment of allowances on a pro rata basis for other than full time
employees was considered at item 5 of the revised summary of submissions. Item 5 arose
from a submission of the ASSA that identified a conflict between clauses 7.3(a)(iii) and 11.1
of the exposure draft.94 The ASSA contend the conflict is a potential source of confusion for
employers of part-time staff in relation to the payment of allowances, as evidenced by
conflicting views provided by the FWO on the matter. The ASSA therefore submit that the
opening sentence in clause 11.1 should be amended to facilitate proportional payments of all
allowances relating ‘work/wages’ on an hourly basis for other than full time employees.
BusSA, ABI, and FA agreed with the ASSA’s submissions.95
[149] In his report to the Full Bench dated 3 June 2016, Deputy President Clancy identified
item 5 as an issue under consideration by the parties that may benefit from further
discussions. Specifically, the Deputy President wrote that the ‘proposal to enable pro rata
payment of allowances relating to work and wages on an hourly basis for other than full time
employees generally agreed, save for the First-Aid Allowance’.
[150] In the subsequent report to the Full Bench dated 25 August 2016, The Deputy
President noted that the parties had reached agreement in relation to item 5 on the following
bases:
‘As to Item 5, there was an agreement for the words “Employees engaged other than on a full-
time basis under sub-clause 7.2 shall be paid pro rata the wage related allowances detailed in
paragraph (a) Leading hands and supervisors” to be inserted after the first sentence in sub
clause 11.1. There was also agreement to amend the words in sub clause 11.2(b) to “An
employee, other than a casual engaged under sub-clause 7.4 (c ) (ii), working a rostered
broken shift must be paid per day $12.24 extra and for excess fares and expense related
allowance of $1.89 per day”.’
[151] Item 11A of the revised summary of submissions appears to be an additional
amendment proposed by the ASSA to that already agreed by the parties in relation to item 5.
[152] We have had regard to the submissions of the parties and note the agreement of the
parties reached in conference on 9 August 2016 in considering the payment of allowances to
part time employees under clause 11. We consider it is appropriate that the weekly leading
hands and supervisors allowance be payable to part time employees on a pro rata basis and
that clause 11.1 be amended in the terms agreed.
Item 14A – Payment for working on a public holiday
[153] Clause 18.3 of the exposure draft provides as follows:
‘A full-time or part-time employee must be paid at the rate of 250% of the minimum hourly rate
for all hours worked on a public holiday. An employee required to work on a public holiday
must be engaged or paid for at least four hours’ work at the rate of 250% of the minimum
hourly rate.’ (emphasis added)
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[154] Clause 26.3(c) of the current modern award adopts similar language to provide the
same entitlement.
[155] The ASSA submit that the italicised words are repetitive in nature, serve no useful
purpose, and simply replicate the intention of the first sentence.96 The ASSA therefore suggest
that clause 18.3 should be amended by inserting a full stop after ‘four hours’ work’ and
removing the second reference to ‘at the rate of 250% of the minimum hourly rate’. No other
submissions have been received in relation to this specific proposal.
[156] We agree with the submission of the ASSA. The second ‘at the rate of 250% of the
minimum hourly rate’ reference in clause 18.3 is not necessary for the clause to meet the
modern awards objective and will be omitted.
Item 14B – Job search entitlement for casual employees
[157] Clause 19.3 of the exposure draft confers an entitlement to employees for up to one
day’s time off without loss of pay for the purpose of seeking other employment in
circumstances where an employer has given notice of termination. The clause replicates
clause 14.3 of the current modern award.
[158] The ASSA submits the clause is ambiguous to the extent that it is unclear if the
entitlement applies to casual employees.97 The issue is of particular relevance to the swim
school sector, which has a history of employing long-term casuals. The ASSA suggest the
ambiguity be resolved by amending the clause to clearly specify if the entitlement
applies/does not apply to casual employees. No other submissions have been received in
relation to this specific proposal.
[159] Clause 19.3 sits within the ‘Termination of employment’ clause of the Fitness award
and it is stated that notice of termination is provided for in the NES, which in turn make it
clear that the rights and obligations in relation to notice of termination of employment do not
extend to casual employees. However, the job search entitlement in clause 19.3 is not a NES
entitlement.
[160] The ‘Termination of employment’ provisions are currently being considered as part of
the plain language re-drafting process.98 To avoid any drafting inconsistencies, this item will
be referred to the plain language Full Bench for further consideration. Interested parties
should consider the Full Bench’s decision regarding a model ‘Termination of employment’
clause99 and the Statement and Directions regarding further submissions about that draft
clause.100
Item 31 – 2016 Part-day Public Holidays
[161] Schedule F of the exposure draft and Schedule E of the modern award, entitled ‘2016
Part-day Public Holidays’, operates where the award otherwise contains provisions dealing
with public holidays that supplement the NES. The ASSA query if the provision is
redundant.101 We note this matter is being dealt with by the Public Holidays Common Issue
Full Bench in AM2014/301 and do not propose to comment further.
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Substantive issues
[162] A number of other items from the revised summary of submissions remain in dispute.
These items can be broadly categorised into two groups:
1. Entitlement of casual employees to overtime (items 6, 9, 10, 11, 11B, 11C and 29); and
2. Classification definitions for the swim industry (items 17, 18, 19, 20, 21, 22, 23, 24, 25,
26, 27, and 28).
[163] In relation to the first category, a report back by the parties dated 30 May 2016
identified this issue as an area of dispute on which it is unlikely the parties will come to an
agreement. In the Report to the Full Bench dated 25 August 2016, Deputy President Clancy
noted that the parties were committed to conducting a teleconference to discuss the issues
further and would provide a report back by close of business on 29 August 2016. The AWU
subsequently provided a report to the Commission which noted the parties remained in
dispute, and suggested the matter was a substantive one that should be subject to
comprehensive submissions by the parties if arbitrated. In accordance with Directions dated
14 December 2016, submissions have been received by interested parties on the issue.
[164] In relation to the second category of disputed items, Directions were issued on 7
February 2017 requiring parties to file further material in relation to classification descriptions
for swimming coaches. Submissions have been received from:
The Australian Workers’ Union;
Australian Swim Schools Association;
Australian Swimming Coaches and Teachers Association; and
Australian Business Industrial and the NSW Business Chamber.
[165] Pursuant to the Directions issued on 14 December 2016, outstanding matters would be
determined by the Full Bench on the basis of the material filed without an oral hearing unless
so requested. However, on 7 February 2017 the AWU requested a hearing in regards to the
two broad categories of dispute. In light of the nature of the dispute, the material received, and
the AWU’s request, we consider both categories of disputed items require determination by a
separately constituted Full Bench.
[166] There are no other outstanding matters for this Full Bench to determine in relation to
the Fitness Award.
2.6 Gardening and Landscaping Services Award 2010
[167] On 15 January 2016 the Commission published an initial exposure draft based on the
Gardening and Landscaping Services Award 2010102 (Gardening Award), together with a
comparison document showing the changes to the structure and language of the award.
Interested parties were invited to file submissions about drafting or technical issues in the
exposure draft. Submissions were received from the AWU, ABI, AFEI, and Business SA. A
conference was held on 30 May 2016 and was attended by representatives from those
organisations.
https://www.fwc.gov.au/sites/awardsmodernfouryr/Comparison-gardening.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/Exposure-draft-gardening.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014227-dir-141216.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014227-dir-070217.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014227-dir-141216.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014227-245-corr-awu-290816-amended.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014227-report-250816.pdf
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[168] Deputy President Clancy published a report to the Full Bench on 3 June 2016 that set
out a number of agreed variations to the exposure draft, a number of variations that were not
agreed and a list of items from the submissions that would be the subject of further
discussions between the interested parties. The report also noted that a number of items were
withdrawn at the conference or were being considered by a separately constituted Full Bench
of the Commission.
[169] A further conference was held on 9 August 2016 to deal with the outstanding issues.
Deputy President Clancy provided a second report to the Full Bench on 25 August 2016. It
noted that further consideration by the parties in relation to most of the outstanding items,
which include the entitlement to overtime payments for casual employees, was required.
[170] Directions were issued on 14 December 2016 and parties were required to file further
material in January and February 2017. No further submissions have been received in
response to the directions. A further updated summary of submissions was published on
10 October 2017. The Full Bench intends to determine the outstanding technical and drafting
matters on the basis of material provided to date.
[171] Items 2 and 20, regarding overtime, remain unresolved. If the parties wish to pursue a
variation to existing overtime provisions they may do so by making submissions to that effect
by 4.00pm Friday, 24 November 2017.
[172] We agree that item 4, regarding part-time employees, represents a substantive change
to the existing part-time employment clause. On that basis, we will amend the exposure draft
to re-instate the words “regular part-time employee”.
[173] Item 5, regarding part-time employees, was ultimately unopposed. The reference to
“minimum hourly rate” in clause 6.4(c) of the exposure draft will be replaced with “ordinary
hourly rate”.
[174] Item 11, regarding rest breaks, represents a substantive change to the existing award
provision. AWU’s initial submission proposed adding in the words “or shift” to the clause
however that was opposed on the grounds that the award did not include shift provisions. The
employer parties have not responded to the AWU’s alternate proposal which was:
9.3 Employees will be allowed a paid rest break of 10 minutes each morning or at an
appropriate time if water restrictions are in place.
[175] AWU’s initial submission was that some provision needed to exist for circumstances
where employees worked outside the normal span of hours due to water restrictions. Business
SA initially objected on the grounds that “shift” was an undefined term. ABI objected on the
grounds that introducing the term “shift” expanded the entitlement to a paid rest break.
[176] Given AWU’s amended proposal does not use the term “shift” and would only apply
in limited circumstances where water restrictions are in place we are minded to adopt the
amendment. Clause 9.3 of the exposure draft will be varied accordingly.
[177] Item 16 was debated between the parties. Clause 15.1 of the current modern award
(replicated in clause 11.3(a) of the exposure draft) states that the leading hand allowance is
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paid in addition to any other wage specified for the employee. The parties disagreed about
whether the leading hand allowance is an all purpose allowance. The first Group 3 Decision
identified the allowance as an all purpose allowance.103
[178] We do not intend to deviate from the view expressed in our previous decision.
[179] Parties were encouraged to have further discussions about item 19, regarding rest
periods after overtime duty. Parties have not provided an agreed position for the Full Bench to
consider. The exposure draft reflects the wording of the current modern award. In the absence
of any alternate proposal, the exposure draft will not be varied.
[180] In item 23, the AWU submitted that Schedule B of the exposure draft should provide
rates for casuals performing overtime. Generally, overtime rates for casuals have not been
provided in the schedules of hourly rates however, as the parties have indicated that it would
be of assistance, the Commission’s research area will prepare rates and add them to the
revised exposure draft for interested parties to consider. The rates will be prepared having
regard to the AWU’s draft.104
[181] To avoid any confusion, the overtime rate for casuals will be calculated by adding the
overtime loading to the casual loading. The overtime loading is not paid instead of the casual
loading. The casual overtime rates will be calculated according to the following formulas:
Monday to Sunday Public Holiday
First 2 hours After first 2 hours All overtime hours
Minimum hourly rate
+ (25% + 50%)
Minimum hourly rate
+ (25% + 100%)
Minimum hourly rate
+ (25% + 150%)
[182] There are no other outstanding matters for this Full Bench to determine in relation to
the Gardening Award.
2.7 Horticulture Award 2010
[183] On 15 January 2016 the Commission published an exposure draft based on the
Horticulture Award 2010105 (Horticulture Award), together with a comparison document
showing the changes to the structure and language of the award. Interested parties were
invited to file submissions about drafting or technical issues in the exposure draft.
Submissions were received from the AWU, ABI, AFEI, Ai Group, the NFF, the VOH and
Business SA. A conference was held on 1 June 2016. With the exception of the VOH, it was
attended by representatives for those organisations. The NUW also participated.
[184] Deputy President Clancy published a report to the Full Bench on 3 June 2016 that set
out a number of the proposed variations to the exposure draft that were agreed, a number that
were not agreed and a list of items from the submissions that would be the subject of further
discussions between the interested parties. The report also noted that a number of items were
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withdrawn at the conference and others were being considered by or suggested for referral to
separately constituted Full Benches of the Commission.
[185] A further conference was held on 8 August 2016 to deal with the outstanding issues. It
was attended by representatives of the AWU, AFEI, Ai Group, NFF, UV, South Australian
Wine Industry Association and VOH. A second report to the Full Bench was issued by
Deputy President Clancy on 25 August 2016. That report set out the proposed variations to
the exposure draft that were agreed, nine issues (some 10 items) that were not agreed and two
issues that were being considered by separately constituted Full Benches of the Commission.
Further hearings in relation to the substantive claims have been listed in mid-2017.
[186] Parties should refer to the Deputy President’s second report to the Full Bench to
identify which issues are being dealt with by a separately constituted Full Bench. We do not
propose to list them in this decision.
[187] A further updated summary of submissions was published on 10 October 2017. We
turn now to the remaining unresolved issues.
Item 53 – Definition of ‘wine industry’
[188] As noted in the Deputy President’s second report to the Full Bench Ai Group indicated
it may vary its position after having the benefit of reviewing an analysis of the definition of
‘wine industry’ as it appears in this award and in other awards. The analysis was to be
published by the Commission’s research team.
[189] A subsequent review of the definition of ‘wine industry’ reveals that it is defined in
the same terms in the Wine Industry Award 2010 and the Pastoral Award 2010, with the
Commission having previously formed the view that consistency should be maintained
between modern awards wherever possible.106 The definition of wine industry in the exposure
draft of the Horticulture Award 2016 differs from these awards in minor respects, in that it
does not include ‘the planting of wine grape vines’ and it describes ‘laboratory activities and
making or repairing barrels, vats, casks and like articles’ in marginally different terms. As to
other ‘agricultural awards’, there is no definition of ‘wine industry’ in the Aquaculture
Industry Award 2010, the Seafood Processing Award 2010, the Silviculture Award 2010 or
the Sugar Industry Award 2010.
[190] Having regard to these factors, we do not consider there would be any unintended
substantive changes to Award coverage if we were to amend the exposure draft so that the
definition of ‘wine industry’ matches the definition used in both the Wine Industry Award
2010 and the Pastoral Award 2010.
[191] We now turn to the issues that involve a consideration of whether the term ‘ordinary
hourly rate’ should be used as opposed to ‘minimum hourly rate’ and vice versa.
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Item 12 – Part-time employees
[192] Ai Group proposes replacing the words ‘ordinary hourly rate’ in clause 6.4(b) of the
exposure draft with the words ‘minimum hourly rate’. Clause 6.4(b) is in the following terms:
‘(b) For each ordinary hour worked, a part-time employee will be paid no less than the
ordinary hourly rate for the relevant classification in clause 10—Minimum wages.’
(emphasis added)
[193] Ai Group submits (with support from Business SA107 and VOH108) that the reference
in clause 6.4(b) to ‘ordinary hourly rate’ and the cross reference to clause 10 is confusing
because clause 10 does not include any ordinary hourly rates.109 Further, at the 8 August 2016
conference before Deputy President Clancy, Ai Group submitted that it had reviewed the
earlier Full Bench decision110 that was said to address the issue and was unsure that ‘the
decision resolves this particular issue’.111 The AFEI does not oppose the changes proposed by
Ai Group.112
[194] The NFF supports the Ai Group position and expresses a preference for maintaining
the status quo, that is, to return to the use of the word ‘minimum’ as opposed to ‘ordinary’.113
It submits that clause 6.4(b) should be consistent with clause 10 which deals with minimum
rates of pay not ordinary rates of pay.114
[195] The AWU is opposed to any change and submits that the exposure draft terminology is
consistent with the earlier Full Bench decision115 concerning the inclusion of ordinary hourly
rates for awards with an all purpose allowance.116 Further, the AWU submits that the purpose
of the cross reference to clause 10 is to provide employees with their applicable classification
to then work out their ordinary hourly rate.117
[196] We agree with the AWU. For awards where all purpose allowances(s) only apply to
some employees, as is the case with the Horticulture Award 2010, the use of the term
‘ordinary hourly rate’ is used to make it clear that any all purpose allowance(s) need to be
added to the minimum rate of pay before calculating any penalty rate. The July 2015 decision
determined this issue:
‘Definitions of ordinary rate of pay have been inserted in the exposure drafts that include an
allowance or loading that is payable for “all purposes” along the following lines (depending on
the application of the all purpose allowances):
All purpose provisions Ordinary hourly rate definition
Only all purpose allowance is an
industry allowance applying to
all employees
ordinary hourly rate means the hourly rate for an employee’s
classification specified in clause X.1, inclusive of the industry
allowance
All purpose allowance(s) only
applying to some employees
ordinary hourly rate means the hourly rate for the employee’s
classification specified in clause X, plus any allowances
specified as being included in the employee’s ordinary hourly
rate or payable for all purposes
Industry allowance applying to ordinary hourly rate means the hourly rate for an employee’s
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all employees for all purposes
and other all purpose
allowance(s) only applying to
some employees
classification specified in clause X, inclusive of the industry
allowance. Where an employee is entitled to an additional all
purpose allowance, this allowance forms part of that employee’s
ordinary hourly rate
The term ‘ordinary hourly rate’ has been used in contrast to ‘minimum hourly rate’ in affected
awards to make it clear that all purpose allowances must be added to the minimum rate of
pay before calculating any penalty rate.’118
[197] Further, we agree with the AWU in that the reference to clause 10 provides parties
with a signpost to their appropriate classification from which they can then determine what
their ordinary rate of pay will be. Nevertheless we appreciate Ai Group’s concern. We
propose to adopt a similar approach to that taken for the Business Equipment Award 2010 and
discussed at greater length in the July 2017 decision. The definition for ‘ordinary hourly rate’
in this award is as follows:
‘ordinary hourly rate means the hourly rate for the employee's classification specified in
clause 10.1(a) and 10.3(a), plus any allowances specified as being included in the employee’s
ordinary hourly rate or payable for all purposes’
[198] To add clarity to the wage tables at clause 10.1(a) and to alleviate Ai Group’s concern,
we propose amending each table by adding a footnote next to ‘minimum hourly rate’ in the
heading row of the rates tables which states:
‘1Consistent with the definition for ordinary hourly rate in Schedule G—Definitions all
purpose allowances need to be added to the rates in the table where they are applicable.’
[199] Parties are to provide any objections to this proposal and/or comments by 4.00pm
Friday, 24 November 2017.
Items 13 and 14 – Casual loading
[200] Ai Group submits that the casual loading is based on the minimum hourly rate before
adding any all purpose allowance(s) and that for this reason the reference to ‘ordinary hourly
rate’ should be replaced with ‘minimum hourly rate’.119 Business SA120 and VOH121 support
the Ai Group proposal. As with the issue discussed directly above under item 12, Ai Group is
not persuaded that the Full Bench decision noted in the revised summary of submissions (the
July 2015 decision) resolves this issue.122
[201] In the July 2015 decision the Full Bench expressed the following provisional view:
‘Some employer parties (e.g. Ai Group pp.12–13 re Cotton Ginning Award 2010 and more
generally, pp.17–18) have submitted that where the current modern award states that the
loading is calculated on “1/38th of the weekly award wage” or “1/38th of the minimum weekly
rate”, the casual loading should not be calculated based on the ordinary hourly rate that is they
do not consider the all purpose allowance should be added to the minimum rate before the 25%
is calculated. They submit that the casual loading is 25% of the minimum rate and added to
the minimum hourly rate, then the all purpose allowance is added after that.
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In our view it is desirable that there be a consistent rule relating to the calculation of a casual
loading which should apply across all awards. Our provisional view is that the position of
certain employer parties outlined above at paragraph is the preferred option that should be
adopted across all awards. That is, the casual loading will not be calculated based on the
ordinary hourly rate. The casual loading will be calculated as 25% of the minimum rate, with
any all purpose allowance being added after that.’123 (footnotes omitted)
[202] Following that decision, parties were given a further opportunity to make written
submissions in relation to whether the casual loading should be applied to any all purpose
allowances. The same Full Bench then determined that the approach in the provisional
decision as identified above should not be adopted. The Full Bench stated:
‘We have come to the conclusion that the approach in the provisional decision should not be
adopted. We are not satisfied on balance that there are sufficiently cogent reasons to justify a
departure from the general approach adopted in the 2008 decision. Leaving aside the dispute
concerning the interpretation of the relevant provisions of the On-Site Award for the time
being, we do not consider that there is anything before us which suggests that there has been
any practical difficulty in the operation of current modern awards provisions which are
consistent with the 2008 decision. In that circumstance, the adoption of a change which may
cause not insignificant reductions in pay to some award-dependent employees is not justified.
Additionally, and on reflection, the application of the provisional decision may add
unnecessary complexity to modern awards. Its effect would be that allowances which are
currently described as all purpose in nature would no longer operate on a truly all purpose
basis, but would apply for certain purposes only. For the sake of clarity, that would then
require those purposes to be clearly identified. As was pointed out in the submissions of the
AWU, a requirement in the case of casual employees that the casual loading be calculated on
the minimum hourly rate, but that other loadings and penalties be calculated on the ordinary
hourly rate would add difficulty to the process of calculating the correct hourly rate. This
difficulty will not be able to be overcome by the addition of detailed rate schedules specifying
the casual hourly rates payable for each ordinary time, overtime, weekend work and shift work
scenario because, particularly in those awards where there are different all purpose allowances
applying to different categories of employees, it will become impracticable to produce
comprehensive rate schedules coverings every possible scenario for every category of
employee.
The concern which underlay the provisional decision was whether it was appropriate for
certain allowances currently expressed as all purpose allowances to be paid at an increased
level for casual employees by reason of the application of the casual loading. Ultimately
however we have concluded that to deal with this concern in the manner proposed by the
provisional decision is too broad-brush an approach and involves conducting the analysis from
the wrong starting point. We consider that the preferable approach is to permit
reconsideration, on an award-by-award basis during the course of the 4-yearly review, as to
whether any existing allowance should retain its “all purpose” designation or should be
payable on some different basis.
The general approach will remain as expressed in the exposure drafts, namely that the casual
loading will be expressed as 25% of the ordinary hourly rate in the case of awards which
contain any all purpose allowances, and will be expressed as 25% of the minimum hourly rate
in awards which do not contain any such allowances.’124 (our emphasis).
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[203] The September 2015 decision addresses the issue raised by Ai Group. We do not
propose to depart from the ‘general approach’. The term ‘ordinary hourly rate’ in
clause 6.5(c)(i) of the exposure draft will remain such that any allowances described as
payable for all purposes will operate on a ‘truly all purpose basis’.
Item 23 – Meal break
[204] Ai Group submits that the use of the term ‘appropriate ordinary hourly rate’ as
opposed to the term ‘appropriate minimum wage’ constitutes a substantive change to the
award and contends that ‘appropriate minimum wage’ is ‘clearly a reference to the rates
prescribed in clause 14.1’ of the current award which do not yet incorporate all purpose
allowances.125 The NFF supports retaining the wording that is in the current award.126
[205] The AWU disagrees that there has been a substantive change with the incorporation of
the term ‘appropriate ordinary hourly rate’ and submits that the term ‘appropriate minimum
wage’ in the current award includes any all purpose allowance(s).127
[206] We disagree with the Ai Group position. It is apparent from the current award (and
now the exposure draft) which allowances apply for all purposes of the award. The use of the
term ‘appropriate’ ought to direct an employer and employee to consider what the correct rate
is, which should in turn involve a consideration of which all purpose allowances may need to
be included in the employee’s rate of pay. By using the term ‘ordinary hourly rate’ employers
and employees are put on notice that all purpose allowances may apply. Further, for the
reasons expressed above at paragraphs [202]–[203] we do not propose to adopt Ai Group’s
proposal. To do so would be to adopt an approach that is inconsistent with the Award
Modernisation Decision of 19 December 2008128 and with our September 2015 decision, as it
would mean that the all purpose allowances would apply for certain purposes only. As we
noted in our September 2015 decision to adopt such an approach would add unnecessary
complexity to the award.
Item 45 – Summary of hourly rates of pay
[207] At the 8 August 2016 conference before Deputy President Clancy it was noted that the
parties had not yet reached agreement in respect of whether the headings for the tables in
Schedule B should reference ‘ordinary hourly rate’ or ‘minimum hourly rate’. In addition, it
was noted that Ai Group would prepare a submission identifying all modern awards in respect
of which it contends this issue arises. A submission was received from Ai Group on
31 August 2016. The list of modern awards in that submission did not include the
Horticulture Award 2010. Nevertheless, in that submission, Ai Group’s concern was further
expressed as follows:
‘Often the heading for particular columns will use the term “ordinary hourly rate” when the
figures in the column are based on the minimum hourly rate. For some employees the ordinary
hourly rate will be the same as the minimum hourly rate but, for employees who are entitled to
one or more all-purpose allowances, the rates will be different.’129
[208] This issue is discussed generally at paragraphs [353] – [362] of the July 2017 decision.
For the reasons given in those paragraphs we intend to adopt the approach proposed at
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paragraph [360] – [361] of the July 2017 decision. Parties are to provide any objections to this
proposal and/or comments by 4.00pm Friday, 24 November 2017.
[209] We turn now to the five remaining items.
Items 15 and 47 – Casuals
[210] The issues in items 15 and 47 both relate to whether casual shiftworkers can be
engaged under this award. Therefore we will deal with them together.
[211] In correspondence to the Commission, the FWO advised that it has received enquiries
as to whether the shiftwork provisions in clause 22.2 of the current award apply to casual
employees.130 At a conference before Deputy President Clancy the NFF and AFEI queried
whether there can be casual shiftworkers working under this award and expressed concerns
‘about a table in the award reflecting that position’.131 Ai Group advised the Commission that
it does not have a concluded view on the matter.132 The AWU firmly stated its position in
support of wage rates tables for casual shiftworkers being included in the exposure draft:
‘…we are very clear that casual employees can be engaged as shift workers under the current
award and that should remain the case in the exposure draft, and we press the point that a rates
table for casual shift workers should be included which would have the standard shift work
rates plus the 25 per cent casual loading.’133
[212] Following the conference before the Deputy President, the NFF confirmed its position
and submitted:
‘…the NFF does not agree that casual employees can be shiftworkers under the current
Horticulture Award 2010. Our interpretation relies in part on the fact that the shiftwork
provisions in clause 22.1 of the Award are closely connected to the ordinary hours of work
provisions for full time and part time employees in clause 22.1.
The initial exposure draft for the Horticulture Award 2016 changed this by moving clause 22.2
of the current Award to a stand alone clause 14. In our view, this represents a substantive
change as to the scope of the shiftwork provisions, and the categories of employment to whom
they apply.
On that basis, the NFF does not support the separation of clauses 22.1 and 22.2 of the current
Award in connection with the exposure draft process. We seek that the two clauses remain co-
located and we suggest that this be achieved by moving clause 14 of the Exposure Draft to
clause 8.2.’134
[213] We agree with the NFF that, on the face of it at least, the recasting of clause 22.2 of
the Horticulture Award 2010 as a standalone clause 14 in the exposure draft could result in a
substantive change. Absent the provision of further material we are not in a position to
determine this issue. Parties are to advise the Commission by 4.00pm Friday, 24 November
2017 as to whether they wish to pursue this issue.
[214] The determination of whether casual shiftworkers may be engaged under this award
(item 15), will resolve the question of whether casual employees can receive shiftwork rates,
an issue which the NFF contends is also substantive.135
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Item 24 – Rest break
[215] At clause 9.2 of the exposure draft, parties were asked to respond to the following
query:
‘Parties are asked whether employees working afternoon or night shift are entitled to a paid rest
break. Clause 9.2(a) below states that the paid rest break is to be taken in the morning.’
[216] Ai Group contends that an employee working afternoon or night shift will not be
entitled to the paid rest break.136 Ai Group submits as follows:
‘…The plain and ordinary meaning of that provision is that the break it provides for is to be
allowed during the morning. An entitlement to the break does not, therefore, arise at times
other than the morning. If work performed by an employee during an afternoon or night shift
as defined by clause 14.1(b) of the Exposure Draft does not occur during the morning, the
entitlement does not arise.’137
[217] The AWU submits that ‘it would clearly be unjust for day workers to receive a paid
rest break but not shiftworkers’ and propose amending the clause to read (changes tracked):138
(a) Employees will be allowed a paid rest break of 10 minutes each morning day or shift.
[218] The NFF and AFEI support the AWU proposal.139 Ai Group submits that the AWU’s
proposal ‘would result in a substantive increase to employee entitlements and as such is not
appropriately considered as part of this process’.
[219] The question for us to determine is whether the inclusion of a term that would grant
afternoon and night shift workers a paid rest break of 10 minutes each shift is necessary for
the modern awards objective of a fair and relevant minimum safety net to be met. In relation
to the matters required to be taken into account in s.134 of the Act, we consider the inclusion
of such a term would assist in meeting the objectives and/or needs in paragraphs (a), (da), (e)
and (g), in terms of simplicity, albeit it would necessarily impose at least some level of cost
on employers (s.134(f)). While issues pertaining to the other factors in s.134 are not aroused,
we are nonetheless persuaded, on balance, that the AWU proposal should be adopted.
Item 25 – Break after ceasing work
[220] The AWU proposes amending clause 9.3(a) to read as follows (changes tracked):
(a) An employee is entitled to a break of 10 hours between finishing work on one day and
commencing work on the next day or shift.
[221] The AWU submits that its proposed variation would ‘eliminate ambiguity which could
arise when a night shift ceases and then commences again on the same calendar day’.140
Business SA141 agrees with the AWU and the NFF does not oppose.142
[222] Conversely, Ai Group submits that the circumstance referred to by the AWU is not
caught by the clause and therefore no ambiguity arises. Further, it notes that it is ‘unaware of
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any practical problem arising from the current wording of the award’.143 Ai Group opposes
the proposal and contends:
‘…the proposal appears to simply be an attempt to introduce a new requirement that there be a
10 hour break between “shifts”. The AWU proposed amendment should not be made.
However, if the Commission is concerned about a possible ambiguity, clause 9.3 could simply
be amended to clarify that it does not apply to shift workers.’144
[223] Having regard to the positions adopted by the parties and the matters required to be
taken into account in s.134 of the Act, we consider the variation as proposed by the AWU that
would provide a break of 10 hours between shifts is both desirable from a work, health and
safety perspective and necessary for the modern awards objective of a fair and relevant
minimum safety net to be met. We consider a uniform entitlement to a break of 10 hours is
warranted and would assist in meeting the objectives and/or needs in paragraphs (a), (c), (d)
and (g). There is no evidence before us suggesting it would result in additional costs for
employers or negatively impact on business efficiency and productivity (s.134(f)) or
negatively impact upon the factors in s.134(h) of the Act.
Item 27 – Pieceworkers
[224] The NFF proposes defining the full and base rate of pay for pieceworkers for the
purpose of calculating NES entitlements. The NFF submits that its approach ‘reflects the fact
that hours of work are not always recorded for pieceworkers’.145 Its proposal is as follows:
‘For the purpose of the NES, the full rate of pay for a pieceworker is calculated by dividing the
total amount earned by the employee during the 12 months immediately preceding the taking
of the NES entitlement by the total daily tally for the employee for days worked in that period,
and dividing that daily tally by 7.6.
For the purpose of the NES, the base rate of pay for a pieceworker is calculated in the same
way as the full rate of pay for a pieceworker and then reduced by 15% (for permanent
employees) or 40% (for casual employees).’ 146
[225] The AWU opposes the proposal and submits it:
‘…uses the definition from the Fair Work Regulations for base rate of pay as the definition of
full rate of pay and then adopts a lower entitlement for base rate of pay in the award, so we
don't see that whatever goes in the award should be lower than the safety net for award and
agreement free workers.’147
[226] Ai Group submits that the proposal would amount to a substantive change and for this
reason considers that the proposal should be dealt with in the process the Commission has
adopted for dealing with substantive changes sought that are contentious.148 Ai Group advised
it may seek to be heard (at the appropriate time) in relation to this proposal.149
[227] At a conference before the Deputy President, AFEI agreed to inform the Commission
of its position by 27 August 2016, however no correspondence from AFEI has been received
in respect of this issue to date.150 AFEI are asked to confirm its position by 4.00pm Friday,
24 November 2017.
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[228] In light of the nature of this dispute, the desirability of establishing clarity for
arrangements relating to pieceworkers, and the Ai Group’s request, we consider it requires
determination by a separately constituted Full Bench.
Item 9 – Facilitative Provisions
[229] The interested parties generally did not oppose the NFF’s proposal to insert sub-clause
15.2(b)(i) in the list of facilitative provisions. The AWU did not oppose the variation so long
as there is consistency in the TOIL provisions across exposure drafts.
[230] A number of outstanding award-specific matters are still being considered by the Full
Bench dealing with the award flexibility common issue. Those proceedings have not
concluded and we anticipate that there will be determinations issued in due course. In the
meantime, we see no reason not to add clause 15.2(b)(i) to the list of facilitative provisions so
the exposure draft will be varied accordingly.
Item 19 – Ordinary hours and roster cycles
[231] The AWU submits that clause 8.1(a)(iv) of the exposure draft could be improved by
adding reference to work outside the span of ordinary hours. VOH oppose the variation
because the drafting is consistent with the current award provision.
[232] We agree that the clause would be improved by clarifying when overtime applies.
Clause 8.1(a)(iv) of the exposure draft will be varied to read as follows:
(iv) All time worked by full-time and part-time employees in excess of the ordinary
hours or outside of the ordinary hours will be deemed overtime
Item 56 – Definitions
[233] We anticipate that this item will be considered as part of separate substantive
proceedings for AM2016/25. If the matter requires further consideration following the
conclusion of the substantive proceedings, interested parties may make submissions to that
effect.
[234] There are no other outstanding matters for this Full Bench to determine in relation to
the Horticulture Award.
2.8 Legal Services Award 2010
[235] On 18 December 2015 the Commission published an exposure draft of the Legal
Services Award 2015 (Legal Services Award), together with a comparison document showing
the changes to the structure and language of the award. Interested parties were invited to file
submissions about drafting or technical issues in the exposure draft. Submissions were
received from the ASU, ABI, the AFEI, the Ai Group, Business SA and a number of private
legal firms (jointly ‘the Law Firms’). A conference was held on 30 May 2016. With the
exception of the ILOE-Vic, it was attended by representatives of those organisations. Deputy
President Clancy published a report to the Full Bench on 3 June 2016 that set out a number of
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the proposed variations to the exposure draft that were agreed and a list of items from the
submissions that would be the subject of further discussions between the interested parties.
The report also noted that a number of items had been referred to separately constituted Full
Benches of the Commission and the views of the interested parties on the question of whether
the Legal Services Award should be combined with the Clerks – Private Sector Award 2010,
which was generally not supported.
[236] The same parties attended a further conference on 9 August 2016 to deal with the
outstanding issues. At its conclusion, the interested parties indicated they would report back
in relation to various matters. A second report to the Full Bench was made by Deputy
President Clancy on 25 August 2016. This indicated that the parties had reached agreement on
some of the outstanding matters, including the definition of ‘law graduate’, confirmed the
matters that were not agreed and noted the other matters still under consideration and due for
report back opposing a number of the positions of the Law Firms.
[237] Directions were issued on 14 December 2016 and parties were required to file further
material in January 2017 and reply material in February 2017. They responded as follows:
On 20 December 2016, the ASU filed comments in response to the revised Summary
of submissions published on 22 July 2016; 151
On 10 January 2017, the Law Firms filed comments in response to the revised
Summary of submissions published on 22 July 2016;
On 20 January 2017, the Law Firms filed submissions;
On 30 January 2017, the ASU filed submissions in reply to the submissions of the
Law Firms;
On 7 February 2017, the Law Firms issued submissions in reply.
[238] The Commission published a revised summary of submissions on 17 February 2017.
A further updated summary of submissions was published on 10 October 2017.
Item 2 – Definition of Law Graduate, Item 14 – daylight saving and Item 11 – Shift work on
public holidays
[239] The parties confirmed their agreement to the proposed definition of ‘law graduate’ as
outlined by Deputy President Clancy in his Report to the Full Bench on 25 August 2016. We
propose to amend the definition in the manner suggested.
[240] The Law Firms submit that the daylight saving issues arising from clause 28.1 of the
current award are remedied by clause 8.5 of the exposure draft and on the basis that this
wording is maintained, the Law Firms do not pursue any variation.
[241] Further, the parties appear to have agreed that the wording at the start of sub clause
13.4(c)(iii) of the exposure draft should be changed to ‘where shifts fall partly on a public
holiday…’. We agree and, as such, we propose to amend the definition in the manner
suggested.
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Item 8 – Changing from the term ‘shift allowances’ to ‘shift penalties’
[242] The word ‘penalties’ has been inserted into the exposure draft at clause 13.3, changing
the reference from shift work ‘allowances’ to shift work ‘penalties’. The Law Firms noted the
lack of consensus regarding this but the parties have not developed their submissions further.
[243] On the limited material before us we do not propose to change the exposure draft, at
this time.
Item 13 – Ordinary hours of work and roster cycles – day workers
[244] While Law Firms do not object to the wording of clause 8.1 of the revised exposure
draft, noting it uses slightly different language to that adopted in clause 24.1 of the current
award, their proposed variation would read as follows:
8.1 Ordinary hours and roster cycles—day workers
(a) The ordinary hours of work for day workers are to average 38 hours per week but must not
exceed 152 hours in 28 days.
(b) By agreement between an employer and an employee, the employee's ordinary hours of
work may be arranged on the basis that the weekly average of 38 ordinary hours is achieved
over a period which exceeds 28 consecutive days but does not exceed 26 weeks.
(b)(c) The ordinary hours of work may be worked on any day or all of the days of the week,
Monday to Friday.
(c)(d) Span of Hours
(i) The ordinary hours of work are to be worked continuously, except for meal breaks,
at the discretion of the employer between 7.00 am and 6.30 pm, Monday to Friday.
(ii) The spread of hours may be altered by up to one hour at either end of the spread,
by agreement between the employer and the majority of employees concerned.
(iii) Subject to clause 8.1(c)(d)(iv) any authorised work that is required or requested
by an employer to be performed outside the spread of hours is to be paid for at
overtime rates as prescribed in clause 14—Overtime.
(iv) Any work performed by an employee prior to the spread of hours which is
continuous with ordinary hours for the purpose, for example, of getting the workplace
in a state of readiness for other employees to start work is to be regarded as part of the
38 ordinary hours of work.
(d)(e) Rostered days off
(i) Arrangements for rostered days off may be reached between an employee and an
employer.
(ii) Such arrangements will outline:
the method of accruing time towards a rostered day off; and
an agreed method of accumulating and taking rostered days off.
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[245] The Law Firms submit the proposed amendments provide greater flexibility and
clarity in the arrangement of hours of work and s.63 of the Act places no limitation on the
period of time across which hours may be averaged. They suggest that it is uncontentious that
the nature of work within a law firm, and within practice areas within a law firm, fluctuates
significantly depending upon the types of matters being handled at any given time.
[246] The Law Firms contend that given that qualified and admitted lawyers are not covered
by a modern award and may have an agreement with their firm to average their ordinary hours
of work over a 26 week period (see s.64 of the Act), award covered employees who work
side-by-side with qualified and admitted lawyers should have the same opportunity to average
their hours in order that they can work fewer hours of work during quiet periods of time,
balanced against periods in which they may worker greater hours of work. The Law Firms
submit the variation would fulfil the modern awards objective at s.134 of the Act that modern
awards should promote modern workplace practices and the efficient and productive
performance of work.
[247] Regarding the proposal that overtime must be authorised, the Law Firms submit there
are a number of modern awards which already contain this requirement. It says employees
covered by the Award work in an environment in which they are highly autonomous and the
proposed variation makes it clear that employees will only be entitled to be paid for additional
work they perform outside their ordinary hours where this has been authorised. It says the
clarification provides certainty with respect to what an employee is entitled to be paid in any
pay period and also creates a disincentive against an employee performing unreasonable
additional hours that have not been authorised, which might otherwise create a risk to health
and safety. The Law Firms submit the variation is necessary to achieve the modern awards
objective of promoting efficient and productive performance of work (s.134(1)(d)) and that
the Award is simple and easy to understand (s.134(1)(g)).
[248] In reply, the ASU submit the Law Firms are seeking to go beyond the current award
provision, which it says gives some protection to employees regarding their hours of work. It
says the proposed variation makes working hours less predictable, which may be detrimental
to an employee’s working and family life, and it diminishes the current conditions of
employees. The ASU submit the Law Firms confuse s.64 of the Act with s.63 of the Act.
[249] In response to the ASU’s submissions, the Law Firms submit that as the ASU did not
make any submissions in opposition to the proposed requirement that overtime must be
authorised, the proposed variation may be adopted.
[250] We are disposed to granting the claim of the Law Firms for the insertion of a
requirement that overtime be authorised.
[251] As to the proposal for the averaging of hours for a period up to 26 weeks, in our view
the proposed is a substantive change and will be referred to a separate Full Bench for
determination.
Item 16 – Rest breaks
[252] The Law Firms propose that clause 33.2 of the current award be amended. While they
note that clause 9.2(a) of the revised exposure draft uses slightly different language to that
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adopted at clause 33.2 of the current award and they do not object to this, they propose
variations to clause 9.2(a) of the revised exposure draft as follows:
9.2 Paid rest breaks
(a) All employees will be allowed two paid rest breaks, subject to the reasonable business
needs of the practice, on each day as follows:
(i) the first of 10 minutes to be allowed between the time of starting work and the
usual meal break; and
(ii) the second of 10 minutes to be allowed between the usual meal break and the time
of finishing work for the day.
[253] The Law Firms contend they do not propose that employees covered by the current
award should not receive, or should not be paid for, rest breaks of up to 20 minutes on each
day on which they perform work, notwithstanding that a number of predecessor pre-reform
awards to the current award did not provide any entitlement to a rest break in addition to meal
breaks, paid or otherwise. The Law Firms outline pre-reform awards in various States and the
corresponding provision in their submissions. They submit that, while not objecting to a
minimum rest break entitlement, reasonable business demands such as court deadlines, may
affect demands upon the work performed by a particular employee, necessitating some
flexibility around the taking of paid rest breaks.
[254] The Law Firms submit the current award is to a large degree based upon the drafting
of the Clerks – Private Sector Award 2010. It said the nature of the work performed by
employees covered by both awards is largely of an administrative nature, save that, it submits
it can be accepted that work of employees covered by the Legal Services Award 2010 at times
may be of a higher competency level given the nature of the legal industry. However, the
Law Firms submit that unlike the current award, the Clerks – Private Sector Award 2010
provides for the taking of rest breaks in a manner that takes into account the reasonable needs
of the employer’s business.152
[255] The Law Firms conclude it is necessary to adopt the proposed variation to provide for
commensurate flexibility in the taking of rest breaks to that provided under the Clerks –
Private Sector Award 2010 and to achieve the modern award objective to promote flexible
modern work practices and the efficient and productive performance of work (s.134(1)(d)).
[256] The ASU submit under the current award, employees are entitled to two 10 minutes
paid rest breaks. It says the safety net of the Award covers moderately remunerated
employees who are award dependent, whose current entitlements should not be diminished.
The ASU queries whether employees would be denied the rest break if it does not suit the
‘reasonable business needs of the practice’?
[257] In response, the Law Firms submit that the proposed variation will not impact upon
the remuneration of the employees covered by the Award and allows employees to take their
rest breaks at times that are convenient to them and to their firm.
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[258] On the basis of the material filed, we are attracted to amending clause 9.2(a) of the
exposure draft but in a manner that more closely reflects the provision for rest breaks in the
Clerks –Private Sector Award 2010. As such, our provisional view is that clause 9.2(a) of the
exposure draft should be amended as follows:
9.2 Paid rest breaks
(a) All employees will be allowed two paid rest breaks on each day. Each rest break should be
taken at a time suitable to the employer, taking into account the reasonable business needs of
the practice. If suitable to the reasonable business needs of the practice:
(i) the first of 10 minutes to be allowed between the time of starting work and the
usual meal break; and
(ii) the second of 10 minutes to be allowed between the usual meal break and the time
of finishing work for the day.
Item 18 – Law Graduates
[259] Clause 39 of the current award provides:
39.1 A law graduate is entitled to leave of absence with pay:
(a) for study and attendance at examinations, not exceeding four days in respect of each
subject for which they present themselves for examination which is necessary to enable the
employee to qualify for admission; and
(b) to attend lectures and organised classes at a university or other course of instruction which
is required to enable the employee to qualify for admission.
[260] The Law Firms submit this clause should be deleted and replaced with:
39. Special conditions of employment—Law graduate
39.1 A law graduate is entitled to paid study leave to attend a course of instruction, and
prepare for and attend examinations, that relate to the practical legal training required for their
admission to practise as an Australian lawyer.
39.2 Paid study leave should be taken at a time agreed with the employer and may not, unless
otherwise agreed between the employer and the law graduate, exceed a total of 20 days in any
12 month period for the purposes of attending any course of instruction required to complete
practical legal training, including one day to prepare for each examination in addition to the
time reasonably required to attend the examination.
[261] The Law Firms submit the proposed variation is necessary to reflect the different
admission requirements that apply to new law graduates to those that operated at the time the
Award was made. In correspondence of 29 August 2016,153 the Law Firms summarised the
admission requirements for graduates. The Law Firms submit that the revised wording allows
graduates to access their entitlements holistically, rather than strictly tying them to certain
subjects and enables the graduates to use their leave of absence as and when they need it.
They advise there is no mandated training time that a law graduate must fulfil in order to
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complete a graduate diploma and submit that in their experience, it is appropriate that the time
allowed to be taken as a leave of absence is no more than 20 days.
[262] The Law Firms submit the proposed variation sensibly accommodates the admission
requirements of law graduates and is necessary to achieve the modern award objective that the
Award promote flexible modern work practices and the efficient and productive performance
of work (s.134(1)(d)).
[263] With respect to clause 39.1(a), the ASU submit the proposed variation is unclear and
subject to interpretation by the employer as to the practical legal training (PLT) required for
admission to practice. It says the proposal diminishes the clearly spelt out current provisions
and could lead to disputation.
[264] The ASU contend the proposed variation to current clause 39.1(b) is more concerning,
as it would make the current entitlement subject to the agreement of the employer, which is
presently not required. It also says there is currently no cap on lectures and organised classes,
whereas the variation seeks a total of 20 days in any 12 month period. The ASU submit this
proposal diminishes the current clause by placing caps on class attendance and subjecting the
leave to employer agreement which is to the disadvantage of the employee.
[265] The Law Firms reject the proposition that the proposed variation may lead to
disputation around what constitutes PLT. They say there are statutory rules which are
prescriptive as to the PLT required for a law graduate to be admitted to practise. They submit
there can be no question as to what types of study leave relate to PLT and attract an
entitlement to be released from duties without deduction of pay, and what types of study do
not.
[266] This issue will be referred to a separate Full Bench for determination.
[267] In the Directions issued on 14 December 2016, parties seeking a hearing were directed
to make a request in writing by 7 February 2017. In its submissions dated 7 February 2017,
the Law Firms advised they do not wish to be heard at an oral hearing with respect to the
outstanding variations they seek. There were no other responses either way.
[268] If any party wishes to respond to the provisional views expressed above, they should
do so by 4.00pm Friday, 24 November 2017.
[269] There are no other outstanding items for the Legal Services Award.
2.9 Nursery Award 2010
[270] On 15 January 2016 the Commission published an exposure draft based on the
Nursery Award 2010154 (Nursery Award), together with a comparison document showing the
changes to the structure and language of the award. Interested parties were invited to file
submissions about drafting or technical issues in the exposure draft. Submissions were
received from the AWU, ABI, AFEI, Business SA, and Nursery & Garden Industry Australia.
A conference was held on 30 May 2016. With the exception of Nursery & Garden Industry
Australia, it was attended by representatives of those organisations. Deputy President Clancy
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published a report to the Full Bench on 3 June 2016 that set out a number of the proposed
variations to the exposure draft that were agreed, a number that were not agreed and a list of
items from the submissions that would be the subject of further discussions between the
interested parties. The report also noted that a number of items had been referred to separately
constituted Full Benches of the Commission.
[271] A further conference was held on 9 August 2016 to deal with the outstanding issues. A
second report to the Full Bench was made by Deputy President Clancy on 25 August 2016.
This dealt with the three outstanding matters and of these, it was noted one had been agreed.
As to the other two, the interested parties suggested one ought be considered again once the
Casual and Part-time employment Common issue proceedings are completed and the other as
part of the consideration of the terms ‘ordinary hourly rate’ as opposed to ‘minimum hourly
rate’ across a range of awards. Directions were issued on 14 December 2016 and parties were
required to file further material in January 2017. No further submissions were received.
[272] A further updated summary of submissions was published on 10 October 2017.
[273] The agreed matter, Item 13, concerned the inclusion of a term that would provide for a
paid rest break of 10 minutes each day as opposed to only each morning, as is currently the
case. For the same reasoning we outlined in paragraph [218] above, we are persuaded the
AWU proposal should be adopted.
Item 5 – Part-time employment
[274] The AWU submitted that there should be a new clause inserted at clause 6.4 to clarify
the distinction between casual and part-time employment. ABI opposes the AWU’s
submission. The parties suggested this item should be re-visited after the decisions in the
Casual and Part-time employment common issue proceedings were handed down.
[275] If interested parties now seek to re-enliven item 5, they are to provide any further
submissions by 4.00pm Friday, 24 November 2017. In the absence of further submissions
the Item will be considered withdrawn.
Item 9 – Casual employees – ordinary hours of work
[276] The AWU’s proposal is for a new sub clause 6.5(f) stating “A casual employee’s
ordinary hours of work are the lesser of 38 hours per week or the hours required to be worked
by the employer” to be inserted because the exposure draft does not currently prescribe the
weekly ordinary hours of work for casual employees with sufficient clarity to satisfy s147 of
the Act. The AFEI and Business SA opposed this on the basis that it would represent a
substantive change. Therefore, the parties suggested this item should be re-visited after the
decisions in the Casual and Part-time employment common issue proceedings were handed
down.
[277] In that proceeding and decision, the Full Bench dealt with this issue with reference to
the Horticulture Award 2010, as follows:
‘…we accept the submission of the AWU that the Horticulture Award does not properly
prescribe the ordinary hours of employment for casual employees, and therefore does not
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comply with s.147. This requires rectification. Further, as a matter of general principle, for
essentially the same reasons set out in Chapter 4 in connection with the Hospitality Award, we
consider that it is necessary to achieve the modern awards objective of a fair and relevant
safety net for a modern award which prescribes overtime penalty rates for weekly employees
to also prescribe them to casual employees. In reaching that conclusion, we have similarly
taken into account the consideration specified in s.134(1), and have placed particular weight
upon s.134(1)(da)(i) and (f). The identified principle requires application to the Horticulture
Award. However, this requires considerable caution having regard to the particular
circumstances applicable to this award.’155
[278] In the Casual and Part-time employment Common issue proceedings, the Full Bench
heard evidence on the issue before concluding the position should be that the hours of casuals
are the lesser of an average of 38 hours per week or the hours required to be worked by the
employer and expressing a provisional view as to both a period for the averaging of weekly
hours and when overtime penalty rates would be payable. However, because the Full Bench
had not had the benefit of evidence and submissions relating to the issue, it called for further
submissions and, if necessary, further evidence prior to proceeding to make a final decision. It
also directed the parties to confer further. As the issue raised by the AWU will be determined
by the Casual and Part time Full Bench we do not propose to take any further steps in respect
of the issue.
Item 20 – Summary of hourly rates of pay – casual employees
[279] While the parties in attendance at the conference on 30 May 2016 conference
supported the overtime rates appearing in Table B.3.2 of Schedule B of the exposure draft of
the Nursery Award 2016, as published on 29 July 2016, the AFEI and Business SA indicated
support for a consistent approach across modern awards regarding the titles of the tables and
the use of the term “ordinary hourly rate” as opposed to “minimum hourly rate”. As such,
they appeared to suggest Table B.3.2 of Schedule B should be considered in light of any
submission filed by the Ai Group outlining its position across a range of Awards on the issue
of adopting the term “ordinary hourly rate” as opposed to “minimum hourly rate” in tables
outlining overtime rates for casual employees.
[280] The Ai Group subsequently made the submission “often the heading for particular
columns will use the term ‘ordinary hourly rate’ when the figures in the column are based on
the minimum hourly rate. For some employees the ordinary hourly rate will be the same as
the minimum hourly rate but, for employees who are entitled to one or more all-purpose
allowances, the rates will be different” before concluding that to address this “would require
substantial changes to the approach which the Commission has taken in preparing the
exposure drafts”.156 We do not understand the Ai Group to have advanced its position beyond
these submissions.
[281] Accordingly, unless we are advised by any interested party that it intends to make a
submission to the contrary, we intend to insert proposed Table B.3.2 of Schedule B into the
Nursery Award 2016. Parties are to provide any final objections to this proposal and/or
comments by 4.00pm Friday, 24 November 2017.
[282] There are no other outstanding items for this Full Bench to determine in the Nursery
Award.
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2.10 Pastoral Award 2010
[283] The technical and drafting issues in respect of the Pastoral Industry Award 2010 (the
Pastoral Award) were substantially dealt with in the July decision, but the following matters
remain outstanding:
Item 9 Part 2: meal breaks and meal allowances.
Item 26 clause 10.1(c): first aid allowance.
Item 49 clauses 27.2, 38.1 and Schedules B.2.2, B.5.2 and B.6.1: overtime and
penalty rates.
Items 101 and 103 Schedule B.4.1 – Pig Breeding and Raising – ordinary and
penalty rates.
Various provisional views expressed in the July decision.
Item 55 clause 31.1(b) and (c) – the ‘continuous work’ provisions.
Items 102 and 104 Clauses B.4.2 and B.4.5 – Pig Breeding and Raising –
shiftworker rates.
[284] We now turn to deal with each of these matters.
Item 9 Part 2 – meal breaks and allowances
[285] On 6 October 2016 the Commission’s research area published a document157
identifying potential inconsistencies between the general employment conditions and
occupation streams in the current award. One of the potential inconsistencies identified
concerned clauses 17.2 and 36.10, dealing with overtime and meal breaks for piggery
attendants.
[286] Clause 17.2(c)(ii) of the current award states:
‘17.2 Expense-related allowances
(c) Meal allowance
(i) If an employee is required to work overtime after working ordinary hours (except
where the period of overtime is fewer than one and a half hours), the employee will be
paid $12.93 for the first and any subsequent meals. Alternatively, the employer may
supply the employee with a meal.
(ii) An employee required to work overtime for more than two hours after the
employee's ordinary ceasing time without having been notified before leaving work on
the previous day that the employee will be required to work overtime, will be provided
free of cost with a suitable meal, and if the work extends into a second meal break,
another meal, provided that in the event of the meal not being supplied the employee
is entitled to a payment of $12.93 for each meal not supplied.’
[287] Clause 36.10 of the current award states:
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‘36.10 Where overtime is unplanned and not notified the day or days beforehand, a payment
will be made of $12.93 after two hours of overtime if work will continue beyond the meal
break. Alternatively the employer may supply the employee with a meal.’
[288] The Commission identified the following potential conflict in respect of clauses
17.2(c)(ii) and 36.10:
‘If a pig breeding and raising employee works overtime that he/she was not notified of the
previous day, and the overtime extends to a second meal break, is the employee entitled to a
second meal in accordance with clause 17.2(ii) or limited to one in accordance with clause
36.10?’
[289] In the July decision we made the following observations about these provisions:
‘The AWU submits that clause 36.10 is not limited to one allowance or meal. It submits that:
‘When unplanned overtime is worked, an employee receives a payment or a meal after
two hours of overtime if work will continue beyond the meal break. This applies after
each two hours of overtime if work will continue after the meal break.’158
The AWU’s submission appears to be a logical reconciliation of the two clauses and is
consistent with the terms of such provisions in other modern awards (see Attachment D).
However, it seems to us that the terms of clauses 17.2(c)(ii) and 36.10 are far from clear and in
our view should be redrafted in plain language. It is necessary to first attempt to determine
what entitlements the clauses are intended to provide.
It appears that clause 17.2(c) provides that an employee is entitled to a meal allowance in the
following circumstances:
the employee is required to work overtime after their ordinary ‘ceasing time’ on a particular
day;
the employee works ‘more than two hours’ overtime;
the employee is not ‘provided free of cost with a suitable meal’; and
the employee was not notified of the requirement to work overtime ‘before leaving work
the previous day’.
In addition, if the overtime work ‘extends into a second meal break’ then a further meal
allowance would be payable (provided that the circumstances set out above have been met).
But clause 17.2(c) is unclear in a number of respects. In particular, the meal allowance is
payable where an employee works ‘more than two hours’ overtime, which simply begs the
question, how much more? Nor is it clear when an employee is entitled to a second meal
allowance. The clause appears to provide for the payment of a further allowance in
circumstances where the overtime ‘extends into a second meal break’, but it does not specify
when overtime can be said to extend into a ‘second meal break’. Is it after a further two hours?
Or a longer period?
Clause 36.10 also lacks clarity. It appears to provide for the payment of a meal allowance in
circumstances where an employee is not notified of the request to work overtime (‘the day or
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days beforehand’) and the employer does not provide the employee with a meal. But the
amount of overtime required to be worked to qualify for payment of the meal allowance is
unclear. The clause states that the allowance is payable ‘after two hours of overtime if work
will continue beyond the meal break’. What this means is anyone’s guess. The award is silent
on when ‘the meal break’ would be required and hence one cannot determine whether the
overtime ‘will continue beyond the meal break’.
It seems to us that the meaning of the existing provisions needs to be clarified before we can
attempt to reconcile any conflict between the provisions.’159
[290] A further conference was convened in an effort to clarify the intended operation of
clauses 17.2(c)(ii) and 36.10. At the conference on 24 July 2017160 there was general
agreement that, in relation to clause 17.2(c)(ii), the initial meal allowance is payable after a
period of two hours, however the time at which the second meal allowance would be payable
was disputed.161 It was also noted that there is tension between the meal allowance provisions
contained in clauses 36.5, 36.10 and 36.11. Following that conference the parties were
directed by the Commission to file further submissions in relation to:
the intended operation of clause 17.2(c)(ii) of the Pastoral Award, in particular when
the second meal allowance is payable;
the operation of the meal allowances provisions in clause 36, in particular the
provisions contained at 36.5, 36.10 and 36.11; and
the operation of clauses 10.2(d) and 32.7 of the exposure draft.162
[291] Written submissions were filed by ABI, the AWU and the NFF. No consensus
emerges from those submissions and the parties remain in dispute regarding the intended
operation of these clauses.
[292] The operation and interaction of these clauses is ambiguous and they require review
before the Commission can be satisfied that the relevant terms achieve the modern awards
objective. The issues raised by these clauses goes well beyond what may be characterised as
technical and drafting issues. Accordingly they will be referred to a separately constituted Full
Bench for determination.
[293] We now turn to the issue in respect of the first aid allowance.
Item 26 – clause 10.1(c) – first aid allowance
[294] The AWU submits that the wording in the exposure draft of 15 January 2016 ‘conveys
that the employee would have to actually carry out first aid duties to receive the allowance’
and propose amending the clause.163 The AWU’s proposed amendments read as follows
(changes tracked):
‘An employee appointed by their employer to perform first aid duty as required in addition to
their usual duties, and holding a current recognised first aid qualification, such as one from St
John Ambulance or similar body, must be paid an allowance of $2.55 per day to carry out such
work.’
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[295] In the July decision, we expressed the provisional view that the AWU’s proposed
amendment be accepted and provided interested parties with an opportunity to make further
submissions on that provisional view, if they wished to do so.164
[296] Submissions were received from the NFF, SCAA, Business SA, and ABI.
[297] The NFF opposed the provisional view stating that the allowance ‘is deemed an all
purpose allowance in both the current award and Exposure Draft’ and that ‘there is not
evidence that the clause in its present form does not operate as intended’.165
[298] The SCAA submits that the current wording of the provision entitles an employee to
the first aid allowance only when actively engaged in performance of first aid, as opposed to
being on ‘stand by’ to perform first aid when required.166 The SCAA submits:
‘The worker is not additionally burdened with any daily tasks by being the appointed first aid
officer and therefore needs only to be paid when they are doing ‘first aid tasks’, in addition to
what their normal duties require.’167
[299] Business SA does not oppose the provisional view expressed by the Full Bench.168
Business SA agrees with the NFF that ‘there is no evidence demonstrating the clause does not
operate as intended at present’, but also submit that the wording proposed by the AWU does
not alter the operation of the provision.
[300] ABI submits that it does not necessarily agree with the AWU that the wording in
clause 10.1(c) of the exposure draft is expressed to the effect that an employee would have to
actually carry out first aid duties to receive the allowance,’169 noting that the exposure draft
makes clear that the first aid allowance is an all-purpose allowance and therefore included in
the employee’s rate of pay.170 However, ABI does not oppose the AWU’s propose
amendments.171
[301] No further submissions were made in relation to this issue.
[302] The relevant aspects of clause 10 – Allowances of the exposure draft are as follows:
‘10.1 Wage related allowances
(a) All purpose allowances
Allowances paid for all purposes are included in the rate of pay of an employee who is
entitled to the allowance, when calculating any penalties or loadings or payment while they
are on annual leave. The following allowances are paid for all purposes under this award:
…
(ii) first aid allowance (clause 10.1(b)(ii)) …
(c) First aid allowance
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An employee appointed by their employer to perform first aid in addition to their usual duties,
and holding a current recognised first aid qualification, such as one from St John Ambulance
or similar body, must be paid an allowance of $2.55 per day to carry out such work.’
[303] The comparable provisions in the current award are as follows:
‘17.4 All-purpose allowances
The following allowances apply for all purposes of this award:
…
(b) First aid allowance
An employee designated by the employer to render first aid in addition to his or her usual
duties and who is the current holder of a recognised first aid qualification, such as one from St
John Ambulance or a similar body, must be paid a daily allowance of 14% of the standard rate
to carry out such work.’
[304] It is plain from the terms of the current award that the first aid allowance is an ‘all
purpose’ allowance and it follows that, contrary to SCAA’s submission, it is not only paid
when an employee is actually performing first aid duties. It is desirable that clause 10.1(c) be
amended to clarify the operation of the term. We confirm the provisional view expressed in
the July decision and will adopt the AWU’s proposed amendment.
Item 49 – clauses 27.2, 38.1 and Clauses B.2.2, B.5.2 and B.6.1 – Overtime and penalty
rates – various
[305] Clause 27.2 of the exposure draft deals with overtime and penalty rates for broadacre
farming and livestock operations and clause 38.1 deals with overtime and penalty rates for
poultry farmers.
[306] Clause B.2.2 of the exposure draft sets out overtime rates for full-time and part-time
farm and livestock hand adult employees; Clause B.5.2 deals with ordinary and penalty rates
for full-time and part-time piggery attendant junior employees (shiftworkers) and clause B.6.1
of the exposure draft sets out ordinary and penalty rates for full-time and part-time poultry
farm worker adult employees.
[307] The NFF submits that the tables in clauses 27.2 and 38.1 of the exposure draft ‘imply
that all hours worked on weekends are overtime’172 and that employees, other than piggery
attendants, are entitled to overtime only after 152 ordinary hours have been worked in a
period of four weeks.173 The proposed amendments to these tables, and the relevant tables in
Schedule B of the exposure draft, were outlined in the July Decision.174
[308] The AWU opposes the NFF position, noting that overtime may be payable in
additional circumstances. The AWU submits that ‘the current provisions are sufficient to
determine when overtime rates are payable and the amendments sought by the NFF will
complicate rather than clarify their operation.’175
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[309] In the July decision we directed the parties to file a joint paper setting out the changes
they believed were required and setting out a short argument in support of those changes.176
The parties have filed the joint paper and have reached agreement on the changes they believe
should be made to the exposure draft.177
[310] The joint proposal of the NFF and AWU is as follows:
Clause 27.2
For overtime worked Overtime rate %
ordinary hourly rate
Monday to Saturday 150
Sunday—all hours—feeding and watering
stock
150
Sunday—all hours—other than feeding and
watering stock
200
Clause 38.1(b)
For overtime worked Overtime rate %
ordinary hourly rate
Monday to Saturday 150
Sunday—all hours—feeding and watering
stock
150
Sunday—all hours—other than feeding and
watering stock
200
Clause B.2.2 Full-time and part-time farm and livestock hand adult employees –
overtime rates
Monday to Saturday – Overtime hours Sunday – Overtime
hours
feeding & watering stock other than feeding &
watering stock
% of ordinary hourly rate1
150% 150% 200%
$ $ $
FLH1 27.44 27.44 36.58
FLH2 28.22 28.22 37.62
FLH3 28.62 28.62 38.16
FLH4 29.30 29.30 39.06
FLH5 29.82 29.82 39.76
FLH6 30.32 30.32 40.42
FLH7 31.94 31.94 42.58
FLH8 34.32 34.32 45.76
With keep – $125.13 per week is deducted where keep is provided in accordance with clause
24.3.
1Rates in table are calculated based on the minimum hourly rate, see clauses B.1.1 and B.1.2
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Clause B.6.2 Full-time and part-time poultry farm worker adult employees – overtime
rates
Ordinary
hours
Monday to
Saturday –
Overtime
hours
Sunday – Overtime hours Public
holiday
Feeding or
watering
stock
Other than
feeding or
watering
stock
% of ordinary hourly rate1
100% 150% 150% 200% 200%
$ $ $ $ $
PW1 18.29 27.44 27.44 36.58 36.58
PW2 19.08 28.62 28.62 38.16 38.16
PW3 19.88 29.82 29.82 39.76 39.76
PW4 21.29 31.94 31.94 42.58 42.58
1Rates in table are calculated based on the minimum hourly rate, see clauses B.1.1 and B.1.2
[311] The parties also submit that the table appearing at Clause B.3.2 should be amended to
reflect the changes outlined to Clause B.2.2, above.178
[312] We are satisfied that the joint proposal of the NFF and AWU appropriately clarifies
the operation of the provisions, without giving rise to further complexity or ambiguity. The
exposure draft will be amended to reflect the joint proposal of the NFF and AWU.
Items 101 and 103 – Clause B.4.1 – Pig Breeding and Raising – Piggery attendant employees
and Clause B.4.4 – Casual piggery attendant adult employees (all employees including
shiftworkers)—ordinary and penalty rates
[313] The AWU had previously expressed a view that the current award is ‘ambiguous in
terms of whether a day worker can work ordinary hours on a Sunday’.179 In the July decision,
we asked the AWU to advise the Commission as to whether it pressed its claim in relation to
these items.180
[314] In correspondence dated 26 July 2017 the AWU advised that it no longer presses these
claims.181
Provisional views
[315] A number of matters raised in the Group 3 Decision182 remain outstanding. In
particular we had expressed provisional views on a range of matters and indicated that we
would seek further submissions in relation to these issues. The provisional views expressed in
the July decision are set out below:
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(i) clauses 17 and 29: provision of a saddle
[316] At [135] to [137] of the July decision we said:
‘Our provisional view is that where a station hand is required by the employer to supply their
own saddle, and the employee does not own a saddle and must purchase one, then the
employee is to be reimbursed for the cost of purchasing the saddle (under clause 17(a)(i)). But
in such circumstances the employee is not also entitled to receive the allowance specified in
clause 29.1. It seems to us that the saddle allowance is intended to cover wear and tear and
depreciation over time. It does not seem reasonable to apply such an allowance in
circumstances where the employer has reimbursed the employee for the full cost of the saddle.
We can see no reasonable basis for the AWU’s contention that the allowance specified in
clause 29.1 is for the purpose of compensating an employee for ‘the additional task of finding
one’s own…saddle’.
We will seek further submissions in response to our provisional view and on the question of
whether an amendment is required to clause 29.1 to make clear that the allowance is not
payable if a station hand has been reimbursed by the employer for the cost of purchasing a
saddle (pursuant to clause 17(a)(i)).’
(ii) clauses 10.3 and 30.1: station cooks and part-time rates
[317] The July decision identified a potential conflict between these provisions:
‘Clause 10.3(f) provides that ‘all time worked in excess of mutually arranged hours will be
overtime’ for a part-time employee. The overtime provision at clause 31 appears to apply to
farm and livestock hand employees only. A station cook employee appears to be excluded
from the overtime provisions in clause 31. Overtime rates for station cook employees are
provided at clause 30.3 and are paid where the employee works for more than five and a half
days in one week. It is unclear what a part-time station cook would be paid.’
[318] The AWU advanced the following submission in respect of this potential conflict:
‘The AWU considers a part-time station cook would be entitled to overtime as per clause 10.3
(f) and clauses 31.1 and 31.2 of the Award.
Clause 31.1 defines overtime and indicates it applies when in excess of the ordinary hours in
clause 30.1 are worked. Station cooks are not excluded from clause 30.1 – they are only
excluded from clause 30.2.
Given a station cook is classified as a Farm and livestock hand Level 1 – they are not
prevented from accessing the overtime rates in clause 31.2. The definition of “Farm and
livestock hand” in clause 3.1 of the Award also does not exclude a station cook.’183
[319] We expressed the provisional view that the AWU’s submission be accepted.
(iii) clauses 26 and 38.3 – public holidays for piggery attendants
[320] The July decision identified a potential conflict between these provisions:
‘Clause 38.3 appears as though for an employee to accrue time off instead of payment for
working on a public holiday an agreement between the majority of employees is first required
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(‘agreement between an employer and the employees’). The same clause appears to allow the
timing of taking TOIL to be determined by the employer and individual employee (‘a mutually
agreed time’). Does clause 38 wholly supersede clause 26 insofar as it applies to piggery
attendants?’
[321] The AWU contended that there was no conflict, for these reasons:
‘Clause 26 determines when a public holiday is observed.
Clause 38 is concerned with payment for public holidays for piggery attendants.
Clause 38.3 allows a TOIL system to be applied for work on public holidays by agreement. If
the TOIL system is agreed, the individual employee can then determine whether to utilise it
and when to take the time off.’184
[322] We expressed the provisional view that the AWU’s submission be accepted as the
clauses are directed at difference subject matters.
[323] A revised exposure draft will be published shortly. The revised draft will incorporate
the changes referred to in this decision and those made in the July decision. Rather than seek
submissions on both the revised exposure draft and the provisional views set out above we
propose to amend the exposure draft in accordance with the provisionally expressed views.
This does not mean that we have reached a concluded view in respect of these matters. Parties
may make further submissions on the provisional views by reference to the proposed clause in
the revised exposure draft.
[324] Parties are directed to make submissions on the revised exposure draft by 4.00pm
Monday, 20 November 2017. Submissions in reply are to be filed by 4.00pm Monday,
4 December 2017. All submissions must be sent to amod@fwc.gov.au. We propose to
determine any disputed issues on the papers unless a party seeks an oral hearing. Any such
request should be made at the time submissions are filed.
[325] Two matters remain outstanding.
(iv) Item 55 clause 31.1(b) and (c) – the ‘continuous work’ provisions.
[326] The first matter concerns clause 31.1 of the current exposure draft.
[327] In their submission of 17 April 2016, the AWU raised concerns relating to clause 31.1
and submits that clause 31.1 of the exposure draft (‘shiftwork definitions’) no longer has the
same meaning as the corresponding clause in the current award (clause 35.3 of the current
award). It submits that by inserting a definition for ‘non-continuous work’ at clause 31.1(c),
the exposure draft has ‘conflated the concepts of non-continuous work and non-successive
shifts’.185 Clause 31.1(c) of the exposure draft is in the following terms:
‘(c) Non-continuous work means work carried [out] by a shiftworker who works on an
afternoon or night shift which does not continue:
(i) for at least five successive afternoons or nights on a five day site or six
successive afternoons or nights on a six day site; or
mailto:amod@fwc.gov.au
[2017] FWCFB 5536
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(ii) for at least the number of ordinary hours prescribed by one of the alternative
arrangements in clauses 31.1(f)(ii) or (iii) of this award;’
Note: the word ‘out’ that should appear between the words ‘means work carried’ and
‘by a shiftworker’ is missing from the most recently published exposure draft.
[328] The AWU submits:
‘“Non-continuous work” is referring to the system of shifts that operates at the enterprise. In
contrast, “non-successive shifts” is concerned with the shifts worked by an individual
employee and is specifically directed at prescribing higher rates when they perform less than a
full week of afternoon or night shift.’ 186
[329] The AWU contends that the shift allowances in clause 31.5 of the exposure draft ‘are
related to the disability an employee experiences from working different shifts during a week’
and that the allowances may apply irrespective of whether the enterprise operates
continuously.187 The AWU submits that the redrafted clauses may have the unintended effect
of removing the ‘entitlement to higher rates of pay for employees who perform less than a full
week of shifts in a continuous enterprise’. 188
[330] The NFF agrees with the AWU position189 and submits that the ‘issue arises from the
inclusion in the exposure draft of a new definition of “non-continuous work”’, a previously
undefined term.190 Although the AWU and NFF agree with respect to the issue, they each
propose different solutions.
[331] The NFF submits that the exposure draft should be changed to reflect the current
award arrangements. It proposes deleting the ‘non-continuous work’ definition (clause
31.1(c)) and replacing clause 31.5 of the exposure draft with the current award clause 35.9.191
[332] The AWU proposes replacing the term ‘non-continuous work’ in clause 31.1(c) with
‘non-successive shifts.’ The same change is consequentially proposed for the table appearing
at clause 31.5—Afternoon or night shift allowances.192 In addition, the AWU proposes
inserting a definition for ‘non-continuous work’ at clause 31.1.193 A summary of the AWU’s
proposed amendments is set out below:
(i) amending clause 31.1(c) to read (changes tracked):
‘Non-continuous work Non-successive shifts means work carried out by a shiftworker
who works on an afternoon or night shift which does not continue…’;
(ii) amending clause 31.1 by inserting a new definition for ‘non-continuous work’
which reads:
‘Non-continuous work means shift work which does not meet the definition of
“continuous work” ’; and
(iii) amending all references to ‘Non-continuous afternoon or night’ in the table at
clause 31.5 to ‘Non-successive afternoon or night’.
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[333] The AWU also submits that the exposure draft restricts the entitlement of a paid crib
break to continuous workers194 and that this is contrary to the intent of the award, as
demonstrated by the ‘fact that clause 35.6 (a) of the Award refers to non-continuous workers
performing an average of 38 hours per week ‘inclusive of crib time’.195 The AWU proposes
removing the distinction in clause 31.2(h) in respect of breaks for employees engaged in
‘continuous work’ and ‘other than continuous work’ and amending the clause as follows
(changes tracked):196
[334] The AWU submits that the distinction in clause 31.2(h) between ‘Continuous work’
and ‘Other than continuous work’ should be removed. It proposes clause 31(h) be amended as
follows:
(h) Breaks
(i) Continuous work
Shiftworkers on continuous work as defined in clause 31.1(b) will be
allowed a 20 minute crib break each shift, which will be counted as
time worked.
(ii) Other than continuous work
Shiftworkers who are not engaged in continuous work as defined in
clause 31.1(b):
will work ordinary hours continuously except for meal breaks at
the discretion of the employer; and
must not be required to work for more than five hours without a
break for a meal.
(h) Shiftworkers will be allowed a 20 minute crib break each shift, which
will be counted as time worked.
(i) Shiftworkers will work ordinary hours continuously except for crib
breaks at the discretion of the employer.
[335] ABI ‘agree generally with the other parties that clause 31.1 of the exposure draft
requires further attention’ and indicated its support for further discussion between the
parties.197 ABI made no further submissions in relation to these issues.
[336] In the July decision we said that we agreed with ABI and that the issues should be the
subject of further discussion between the parties. A conference will be convened for that
purpose, at 2.00pm Thursday, 21 December 2017.
[337] This issue also relates to Items 102 and 104, which are about the wages tables for
shiftworkers in Clause B.4.2 and B.4.5. The AWU submits that the references to ‘non-
[2017] FWCFB 5536
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continuous’ in these schedules should be amended to ‘non-successive’. Further, it submits that
footnote 2 in both tables be amended.198 The NFF does not support the changes proposed.
[338] The determination of this issue is related to the resolution of the matters concerning
clause 31.1 of the current exposure draft and will also be discussed at the conference at
2.00pm Thursday, 21 December 2017.
(v) Items 102 and 104 Clauses B.4.2 and B.4.5 – Pig Breeding and Raising –
shiftworker rates – Sunday work
[339] The second matter also concerns Items 102 and 104. In addition to the changes
outlined in [337], the AWU also submits that the footnote 3 in Clauses B.4.2 and B.4.5 should
be deleted. This footnote relates to rates of pay for shiftworkers on Sundays but limits
payments at the higher rate to “[w]here the major portion of the shift is performed on a
Sunday.”199 The NFF does not support the deletion of this note.
[340] These issues will also be discussed at the conference at 2.00pm Thursday, 21
December 2017.
2.11 Silviculture Award 2010
[341] On 15 January 2016 the Commission published an exposure draft based on the
Silviculture Award 2010200 (Silviculture Award), together with a comparison document
showing the changes to the structure and language in the award. Interested parties were
invited to file submissions about drafting or technical issues in the exposure draft.
Submissions were received from the AWU. A conference was held on 30 May 2016 attended
by representatives of the AWU and the AFEI. Deputy President Clancy published a report to
the Full Bench on 3 June 2016 in which the AWU’s response to 28 items in the exposure draft
was noted. Subsequently, a submission on the exposure draft was received from the NFF and
a further conference was held on 8 August 2016 attended by representatives of the AWU and
the NFF. Deputy President Clancy made a second report to the Full Bench on 25 August 2016
that set out the proposed variations to the exposure draft that were agreed, a number that were
not agreed and a list of items from the submissions that would be the subject of further
discussions between the interested parties. The interested parties were encouraged to
undertake further discussions. Directions were issued on 14 December 2016 and parties were
required to file further material in January 2017.
[342] Submissions were received from the NFF and the AWU. A revised summary of
submissions was published on 17 February 2017. A further updated summary of submissions
was published on 10 October 2017.
[343] A number of items listed in the second report to the Full Bench have been resolved by
the agreement of the parties. We accept the changes agreed to by the parties on the proviso
that the agreed position will not be adopted where it is inconsistent with any previous decision
of the 4 Yearly Review Full Bench as set out in paragraphs [1] and [2] of this decision. We
now turn to the outstanding items.
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/silviculture-sub-summary-revised-101017.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/silviculture-sub-summary-revised-170217.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/silviculture-sub-summary-revised-170217.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014244-report-250816.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/am2014244-report-030616.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/am2014244-report-030616.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/Comparison-silviculture.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/Exposure-draft-silviculture.pdf
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Items 6 and 8 – Definition of full-time and part-time employees
[344] Item 6 refers to clause 6.3 of the exposure draft which sets out the definition for full-
time employees. The AWU has sought to include the word ‘ordinary’ in the phrase ‘an
average of 38 ordinary hours per week’. Similarly, item 8 refers to clause 6.4(a)(i) of the
exposure draft which sets the definition for part-time employees. The AWU seeks to include
the word ‘ordinary’ in the phrase ‘less than 38 ordinary hours per week’.
[345] The NFF opposes the proposed changes. In relation to item 6 the NFF submits the
inclusion of ‘ordinary’ is unnecessary and may mean that a full-time employee who works
outside the span of hours could not be classified as full-time. The span of ordinary hours in
the current award (and exposure draft) is 5.00 am to 5.00 pm. The NFF provides an example
of a full-time employee who works from 10.00 am to 6.00 pm five days a week. The NFF
submits that this employee would fail to meet the definition of full-time employee as
proposed by the AWU as they would work only 35 ordinary hours per week.201
[346] The AWU submits that the insertion of the word ‘ordinary’ reflects the requirement in
the Act that the award provide ordinary hours of work for all classes of employees.202 The
AWU also submits that a full-time employee is guaranteed 38 hours per week. The NFF
submits that this clause is not dealing with rates of pay but is rather a clause defining a full-
time employee and the word ‘ordinary’ is not necessary.203
[347] We are not presently persuaded that the word ‘ordinary’ should be inserted into either
clause 6.3 or 6.4(i) of the exposure draft. However, we seek comment from the parties in
relation to the following possible wording that adopts the approach that appears to have been
applied in relation the same clauses in the Pastoral Award:
‘6.3 Full-time employees
(a) A full-time employee is an employee who is engaged to work an average of 38 hours
per week over a four week period.
…
6.4 Part-time employment
(a) A part-time employee is an employee who:
(i) is engaged to work less than an average of 38 hours per week over a four week
period…’
[348] Parties are to provide comment and/or advise the Commission by 4.00pm Friday, 24
November 2017 as to whether they wish to pursue this issue.
Item 12 – Delayed meal breaks
[349] Parties were asked to confirm what penalty would apply if an employee was working
during a meal break. The current award refers to ‘the rate of 200% in addition’ at clause 25.2.
The AWU proposed the following wording ‘An employee who is required to defer a meal
break prescribed by clause 9.1 must, for the duration of such deferment, be paid at a rate of
200% of the applicable rate of pay’.204 The NFF opposes the use of the phrase ‘applicable rate
of pay’ and notes that this has not been agreed in the context of other exposure drafts in the
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agriculture industry. The NFF submits that the entitlement could be worded as an allowance
and proposes the following wording:
‘An employee who is required to defer a meal break prescribed by clause 9.1 must be paid an
allowance of 100% of the ordinary hourly rate until their meal break is taken.’205
[350] The distinction between the wording provided by the parties appears to be whether the
rate whilst working on a meal break would be inclusive of any applicable penalties. The
reference rate proposed by the NFF would be exclusive of penalty rates whereas, presumably
the rate proposed by the AWU would include any penalties. The wording proposed by the
AWU has the complication that ‘applicable rate’ is not defined in the award and may create
further ambiguity. The proposal by the NFF appears to allow for a person who is in receipt of
a penalty to continue at that rate and be paid an additional allowance that is based on the
ordinary hourly rate.
[351] As mentioned in a comment in the exposure draft, the Silviculture and Afforestation
Award (the pre-modern Silviculture Award) contained a similar provision but with the
wording ‘paid at single time in addition to the appropriate rate’.206
[352] It seems to us that it would be unlikely that the wording of the pre-modern Silviculture
Award would have had an overtime rate for a shiftworker working through a break that was
based on a lower rate than what applied immediately before the break fell due. However we
do not agree with the AWU proposal to retain the wording in the current award as the phrase
‘applicable rate’ is undefined and could lead to further ambiguity.
[353] We think the appropriate course is to redraft clause 9.2 in the exposure draft to
provide:
‘An employee who is required to defer a meal break prescribed by clause 9.1 must be paid at
200% of the rate applying immediately before the meal break was due until their meal break is
taken.’
[354] We consider this drafting largely reflects the current provision and provides
appropriate compensation to an employee working through a meal break.
Item 13 – Overtime crib breaks
[355] The AWU have proposed to insert the phrase ‘applicable rate of pay’ as the rate
employees will be paid for their crib break rather than ‘ordinary hourly rate’. 207 The AWU
submits that the use of the phrase ‘ordinary hourly rate’ would mean that employees working
ordinary hours on a weekend, public holiday or shiftwork would drop to a lower rate while on
crib.
[356] The NFF submits that the clause provides a 20 minute break before starting overtime
and should be treated as ordinary time rather than overtime for payroll purposes.208 The NFF
submits that the wording could by revised as follows:
‘An employee working at least one and a half hours of overtime must be allowed a paid crib
break of 20 minutes before starting overtime after working ordinary hours (inclusive of time
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worked for accrual purposes in clause 8 – ordinary hours of work and rostering and clause
13.6). The crib break will be treated as time worked during ordinary hours.’ (their emphasis)
[357] At conference the parties appeared to indicate that they both believed the applicable
rate for the break to be paid at is the rate applying immediately before the overtime
commenced.209
[358] The NFF made a further submission indicating their position was that the rate should
remain ‘ordinary hourly rate’.210
[359] The issue at hand is whether an employee working on a shift that attracts a penalty
would be paid for the break at the loaded rate or whether they would drop back to the
‘ordinary hourly rate’. The current award states:
‘(b) An employee working at least one and a half hours of overtime must be allowed a crib
break of 20 minutes (before starting overtime after working ordinary hours, inclusive of time
worked for accrual purposes in clause 24—Ordinary hours of work and rostering and clause
26.6) which will be paid for at ordinary rates.’
[360] In the exposure draft an issue arises as the clause has been redrafted and now refers to
the ‘ordinary hourly rate’ which is a term with a defined meaning. The ordinary hourly rate
means the hourly rate for an employee’s classification inclusive of any all purpose
allowances. This rate does not include any shift penalties. The term ‘ordinary hourly rate’ is
obviously different to the term ‘ordinary rates’ used in the current award. We consider it
conceivable that the latter term has been used in order to indicate that the rate payable for the
crib break is the one applicable immediately prior to the commencement of the overtime. We
therefore propose the following wording for clause 9.3(b) of the exposure draft:
‘(b) An employee working at least one and a half hours of overtime must be allowed a crib
break of 20 minutes (before starting overtime after working ordinary hours, inclusive of time
worked for accrual purposes in clause 8—Ordinary hours of work and rostering and clause
13.6) which will be paid at the rate applying immediately before commencing overtime.’
Item 14 – calculation of the minimum weekly rate
[361] This item relates to clause 10.2 of the exposure draft. Subsequent to the publication of
the report to the Full Bench it appears the parties have agreed that this clause should be
removed altogether. We are prepared to adopt this approach.
Item 15 – Actual weekly rate
[362] At clause 10.3 of the exposure draft there is a definition of the how the ‘actual weekly
rate’ is calculated. The actual weekly rate is calculated along with the minimum weekly wage
rate and minimum hourly wage rate in the table of minimum wages in clause 10.1 of the
exposure draft. The NFF submits that the ‘actual weekly rate’ is in effect the ‘ordinary rate of
pay’ under this award. The NFF proposes that a single approach be adopted in this award with
regard to the ‘actual weekly rate’ and provide two options to give effect to this.
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[363] Either by replacing clauses 10.2 and 10.3 with the following:
‘10.2 Ordinary weekly rate
The ordinary weekly rate will be calculated by:
Adding the amounts prescribed by clauses 10.1, 11.2 and 11.3(a); then
Multiplying this amount by 52; then
Dividing this amount by 50.4, rounded to the nearest 10 cents.
10.3 Ordinary hourly rate
The ordinary hourly rate is calculated by dividing the ordinary weekly rate by 38.’
[364] Or by deleting clause 10.2 and 10.3 and including the following in the definitions
section:
‘Ordinary weekly rate is calculated by adding the minimum weekly wage rate in clause 10.1,
the special allowance in clause 11.2 and the industry allowance in clause 11.3(a), then
multiplying that amount by 52 and then dividing by 50.4, rounded to the nearest 10 cents.
Ordinary hourly rate means the ordinary weekly rate divided by 38.’211
[365] It was indicated in the hearing that the parties would have further discussions on this
point. The submissions following the hearing make no mention of this item.
[366] We have considered the suggestion by the NFF and can see the utility of changing the
terminology of the award to make it consistent with other awards. There are however potential
issues arising out of such a change. The main issue about re-naming the ‘actual weekly rate’
as the ‘ordinary weekly rate’ with the additional definition for ‘ordinary hourly rate’ is that
‘ordinary hourly rate’ is used throughout the exposure draft as a reference rate. The current
drafting of the exposure draft defines ‘ordinary hourly rate’ as the hourly rate for the
employee’s classification in clause 10.1, inclusive of any all purpose allowances. The
proposal by the NFF would seem to change the definition to clarify that penalties in the award
were based on the rate currently defined as the ‘actual weekly rate’ albeit divided by 38 to
obtain the hourly rate. The adoption of either of the proposals of the NFF appears to us to
improve the operation of the award in that it resolves a potential ambiguity created by the
insertion of the ‘ordinary hourly rate’ definition. It is our provisional view that the second of
the two options proposed by the NFF, inserting two new definitions in the ‘Definitions’ clause
is to be preferred. This is consistent with the drafting style being used in this process. We also
propose to update the heading of ‘actual weekly rate’ in the table of clause 10.1 to ‘Ordinary
weekly rate’ for consistency. Should parties wish to comment further on this issue they may
do so by 4.00pm Friday, 24 November 2017.
Item 16 – Pieceworker—written requirement—rates
[367] The AWU proposed amending clause 10.4(a) of the exposure draft to state:
‘Employees may agree in writing to work on piecework rates. The piecework agreement must
specify the applicable piecework rate which will be paid for all work performed under the
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piecework agreement. Provided that where an employee works on piecework rates, that
employee must receive at least the ordinary hourly rate per hour of work.’
[368] The clause in the exposure draft, which reflects the provision in the current award
provides:
‘Employees may work on piecework rates. Provided that where an employee works on
piecework rates, that employee must be paid at least the ordinary hourly rate.’
[369] The wording proposed by the AWU contains two additional requirements in addition
to the current award:
the piecework agreement must be in writing; and
the agreement must specify the applicable piecework rate.
[370] The NFF oppose the changes proposed by the AWU on the grounds that it represents a
substantive change to the award. The NFF propose an alternative clause which they submit
has the effect of reinserting the reference to the ‘relevant classification’.
‘Employees may work on piecework rates. Provided that where an employee works on
piecework rates, the employee must be paid at least the amount the employee would have
received for time worked at the ordinary hourly rate for the relevant classification.’
[371] This matter does appear to raise a substantive issue which is disputed by the parties.
We are unable to determine the merits of the proposals based on the limited submissions
before us. As the parties have indicated that they wish to pursue these changes they will be
referred to a separately constituted Full Bench.
Item 17 – Pieceworker leave entitlements
[372] The AWU proposed an amendment to clause 10.4(d) and (e) of the exposure draft that
the AWU submits will clarify the entitlements for paid leave for pieceworkers. Their proposal
is to insert a provision stating that:
‘during periods of paid leave a pieceworker is entitled to receive the greater of the following
amounts:
The rate of pay specified in the Exposure Draft the appropriate type of leave; or
The employee’s average piecework earnings calculated in accordance with the
definition of “base rate of pay” for award/agreement free pieceworkers contained in
Regulation 1.09 of the Fair Work Regulations 2009’212
[373] The NFF agrees that the meanings of ‘full rate of pay and ‘base rate of pay’ should be
reviewed but do not support the AWU proposal as the NFF believes that it would create new
substantive entitlements. In particular the NFF submits that the definition of ‘base rate of pay’
for a shiftworker in the current award is circular as it refers to the NES which in turn refers to
the award.213 To resolve this issue the NFF proposes alternative clauses 10.4(d) and (e) as
follows:
‘(d) For the purpose of the NES, the full rate of pay for a pieceworker is calculated by
dividing the total amount earned by the employee during the 12 months immediately
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preceding the taking of the NES entitlement by the total hours worked by the
employee in that period.
(e) For the purpose of the NES, the base rate of pay for a pieceworker is calculated in the
same way as the full rate of pay for a pieceworker, except that the total amount earned
by the employee over the preceding 12 month period must be reduced by any
incentive-based payments and bonuses, loadings, monetary allowances, overtime or
penalty rates or any other separately identifiable amounts paid in that period.’
[374] It appears to us that this issue is related to Item 16 and is a substantive issue that is in
dispute. We consider that both items will require determination by the same separately
constituted Full Bench.
Item 19 – Leading hand allowance
[375] The AWU submits that the current wording of clause 11.3(b) of the exposure draft
arguably indicates that an employee working as a leading hand may be paid their normal rate
of pay. The exposure draft provides:
‘(b) Leading hand allowance
An employee appointed as a leading hand will be paid a leading hand allowance each
week. The allowance will be whichever of the following two amounts is greater:
(i) the amount specified in the table below, in addition to the weekly
wage rate of the highest classification of the employees supervised,
In charge of $ per week
1 person 18.85
2 to 5 persons 41.90
6 to 10 persons 53.13
more than 10 persons 70.78
or;
(ii) the employee’s own rate.’
[376] The AWU propose the following amendments:
‘An employee appointed as a leading hand will be paid a leading hand allowance each week in
accordance with the following table:
INSERT CURRENT TABLE
The allowance will be paid in addition to the employee’s own rate, or the rate of the highest
classification of the employees supervised, whichever is the higher.’
[377] The AWU referred the pre-modern Silviculture Award which contained the following
provision:
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‘A person specifically appointed to be a leading hand (as defined) shall be paid at the rate of the
undermentioned amounts above the rates of the highest classification supervised, or his own
rate, whichever is the highest in accordance with the number of persons in his charge. (their
emphasis).’214
[378] The current award expresses the allowance as follows:
18.3 Leading hand allowance
An employee appointed as a leading hand will be paid a leading hand allowance each
week. The allowance will be whichever of the following two amounts is greater:
(a) the percentage of the standard rate (as per the table below) in addition
to the weekly wage rate of the highest classification of the employees
supervised,
In charge of % of standard rate per week
not more than 1 person 94
2 and not more than 5 persons 209
6 and not more than 10 persons 265
more than 10 persons 353
or;
(b) the employee’s own rate.
[379] The NFF opposes the changes proposed by the AWU. The NFF submits that the
intention of the provision is that an employee appointed as a leading hand whose rate of pay is
higher than the rate provided in clause 11.3(b)(i) would not be entitled to receive the
allowance.215 The NFF also proposes that the rate referred to in clause 11.3(b)(i) should be
either the ‘actual weekly rate’ or the ‘ordinary weekly rate’.
[380] We agree with the AWU that the drafting of the exposure draft has changed the
operation of this provision. This was unintentional and we consider it appropriate to redraft
the provision to reflect the correct operation of the current provision. The wording of this
provision in the current award could be clarified and we propose to do so.
[381] We also agree with the proposal by the NFF to change the reference rate in clause
11.3(b)(i) to ‘ordinary weekly rate’ as this will clarify the operation of the provision.
[382] Our provisional view is that the clause 11.3(b) should be re-drafted as follows:
(b) Leading hand allowance
(i) An employee appointed as a leading hand will be paid a leading hand
allowance each week in accordance with the following table:
In charge of $ per week
1 person 19.47
2 to 5 persons 43.28
https://www.fwc.gov.au/documents/documents/modern_awards/award/ma000040/ma000040-04.htm#P132_7804
https://www.fwc.gov.au/documents/documents/modern_awards/award/ma000040/ma000040-04.htm#P132_7804
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In charge of $ per week
6 to 10 persons 54.88
more than 10 persons 73.11
(ii) The allowance will be paid in addition to either the employee’s ordinary
weekly rate or the ordinary weekly rate of the highest classification of the
employees supervised, whichever amount is greater.
[383] Should parties wish to comment further on this issue, they may do so by 4.00pm
Friday, 24 November 2017.
Item 23—Fares and travelling time allowance—cross references
[384] The NFF submits that the cross references in clauses 11.4(f)(i) and (v) to clauses
11.4(f)(iii) and (iv) are incorrect and should be to clauses 11.4(d)(i) and (ii) to reflect the
current award.
[385] The equivalent provision in the current award to clause 11.4(f)(i) of the exposure draft
is clause 18.1(f). Clause 18.1(f) begins ‘Subject to clauses 18.1(d)(i) and (ii)…’.
[386] As the NFF points out the equivalent clauses in the exposure draft are to clauses
11.4(d)(i) and (ii) and we shall correct those cross references.
[387] The equivalent provision in the current award to clause 11.4(f)(v) of the exposure draft
is clause 18.1(h). The relevant sentence begins ‘Provided that clause 18.1(n)…’. The
equivalent provision of clause 18.1(n) of the current award in the exposure draft is clause
11.4(l). Clause 11.4(l) of the exposure draft deals with transport from the employer’s location
and does not appear to be relevant to clause 11.4(f).
[388] It appears to us that, having regard to the equivalent provision in the pre-modern
Silviculture Award216 that the cross references in 11.4(f)(v) of the exposure draft are correct.
It seems that there may have been an error in the award modernisation process in relation to
this cross reference. The current award will be re-drafted to be consistent with the pre-modern
Silviculture Award and the exposure draft.
Item 24 – Travelling time allowances
[389] The AWU seek to insert an additional cross reference into clause 11.4(f)(iv) of the
exposure draft to clause 11.6(d) as they submit clause 11.6(d) also prescribes a travelling time
entitlement.
[390] The NFF opposes the inclusion of this cross reference as they say that clause 11.6(d)
deals with ‘camping out’ and is not a travelling entitlement.
[391] We disagree with the AWU that clause 11.6(d) contains a travelling time entitlement.
Clause 11.6(d) does contain provisions for camping out but does not make any reference to
travelling time. We decline to make the proposed change on the limited material before us.
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Item 24A – Transfer during ordinary working hours
[392] The NFF seeks to re-insert the words “provided that” at the beginning of clause
11.4(i)(ii) to reflect , it submits, the operation of the current award in paying employees either
the reasonable cost of public transport fares or, where the employer asks them to use their
own car and they agree, a cents per kilometre rate in lieu of public transport fares. Not to do
so, the NFF submits, would leave it unclear that one allowance is paid in lieu of the other and
significantly increase reimbursement costs for travel during working hours.
[393] We consider further clarity might assist and propose to amend clause 11.4(i)(ii) in the
exposure draft by inserting the words ‘’instead of the reasonable cost of fares referred to in
clause 14(i)(i)” and the end of the sentence.
Item 26 – Living away from home allowance
[394] The NFF submits that the wording of clause 11.6(a)(i) exposure draft unintentionally
changes the operation of the current provision. The exposure draft provides as follows:
(a) Eligibility for payment
(i) An employee will be entitled to the provisions of clause 11.6 when employed
on a job such a distance from their usual place of residence that they cannot
reasonably return to that place each night, provided that:
the employee is maintaining a separate place of residence; and
on being requested by the employer, the employee informs the
employer at the time of engagement that they maintain a separate
place of residence from the address recorded on the job application.
[395] The provision in the current award is as follows:
(a) Qualification for payment
An employee will be entitled to the provisions of this clause when employed on a job
such a distance from their usual place of residence that they cannot reasonably return
to that place each night, subject to the following conditions:
(i) the employee is maintaining a separate place of residence to
which it is not reasonable to expect them to return each night; and
(ii) the employee, on being requested by the employer, informs the
employer, at the time of engagement, that they maintain a separate
place of residence from the address recorded on the job application.
[396] The NFF submits that the removal of the words ‘to which it is not reasonable to expect
them to return each night’ from the first dot point broadens the scope of the term.217
[397] The AWU propose that there only need be one dot point stating:
‘if the employee is maintaining a separate place of residence, on being requested by the
employer, the employee must inform the employer at the time of engagement that they
maintain a separate place of residence from the address recorded on the job application.’218
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[398] The NFF further submits that the exposure draft inserts a reference to ‘usual’ place of
residence in clause 11.6(a)(ii) which the NFF submits limits the scope of the rule on making
‘false statements’.
[399] We agree with the NFF that the drafting of the exposure draft has the potential to
change the operation of this provision through a broadening of the scope of clause 11.6(a)(i)
of the exposure draft and a narrowing of clause 11.6(a)(ii). This was not the intention and we
will redraft the provision to reflect its current operation. We propose to reinsert the words ‘to
which it is not reasonable to expect them to return each night’ into the first dot point of clause
11.6(a)(i) of the exposure draft and to delete the word ‘usual’ from clause 11.6(a)(ii).
Item 27– Expense related allowances—board and lodging
[400] The NFF submits that the last sentence of clause 11.6(c)(iv) of the exposure draft
duplicates the provisions of the dispute resolution clause in clause 24 of the exposure draft.
The last sentence of clause 11.6(c)(iv) is as follows:
‘In the event of disagreement, the matter may be referred to the Fair Work Commission for
determination.’
[401] The current award contains very similar wording at clause 18.4(c)(ii). The equivalent
clause of the pre-modern Silviculture Award contained identical wording to the modern
award.219 The pre-modern Silviculture Award also contained a separate dispute resolution
procedure which set out a process for resolving disputes at the workplace.220
[402] The dispute resolution clause, in clause 24 of the exposure draft sets out the process
for disputes about matters under the award. A dispute arising out of any provision of the
award may ultimately be referred to the Commission for resolution after following a process
as set out in the provision. The provision in clause 11.6(c)(iv) appears to allow disputes over
the operation of the board and lodging clause to proceed straight to the Commission without
following the dispute resolution procedure as set out in clause 24.
[403] Section 146 of the Act requires that each modern award contains a dispute settling
procedure. During award modernisation the Full Bench came up with standard wording for a
dispute resolution clause that was to be included into all modern awards. In the Full Bench
decision of 12 September 2008, the Full Bench stated that the clause, then in draft form,
would outline a process that encourages settlement of disputes at the workplace with the
Commission to be involved only with the agreement of the parties and if the dispute is unable
to be resolved in the workplace.221 They noted further that they had generally not included
reference to the dispute resolution provision in clauses dealing with particular conditions.
[404] In our view clause 11.6(c)(iv) of the exposure draft contains a process that is at odds
with the process set out in the dispute resolution clause. The process set out in clause 24 of
the exposure draft reflects the intention of the award modernisation Full Bench and that
maintaining a separate process for a particular provision within the award is unnecessary.
Accordingly the last sentence in clause 11.6(c)(iv) of the exposure draft will be deleted.
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Item 31 – Rest period after overtime
[405] The AWU suggests, and the NFF agrees, that clause 13.3(a) of the exposure draft
would be clearer if it stated:
‘Overtime will be arranged so that employees have at least 10 consecutive hours off duty after
completing the overtime.’
[406] We agree and the amendment will be made.
Item 35 – Bushfire fighting
[407] The AWU submits that the change in the reference rate in clause 15.7 of the exposure
draft to ‘the ordinary hourly rate’ from ‘the appropriate rate’ in the current award may result
in shift workers falling onto a lower rate while bushfire fighting.222
[408] The NFF submits that the provisions relating to bushfire fighting deal specifically with
bushfire conditions and that shift work provisions, along with a number of other provisions
are not relevant whilst an employee is engaged on bushfire fighting activities.223 The NFF
submits that the shiftwork provisions do not apply when an employee is fighting bushfires.
The NFF submits that the phrase ‘applicable hourly rate’ is not defined in the award and
would increase the uncertainty of the provision.224 The NFF proposes that the term ‘ordinary
hourly rate’ be used as the term is ‘well understood and will provide certainty for parties’.225
[409] Clause 27.7 of the current award is drafted to provide ‘ordinary time for the first eight
hours and at the rate of 150% of the appropriate rate for the next two hours, and at the rate of
200% after that’. The phrases ‘ordinary time’ and ‘appropriate rate’ are not currently defined
in the award. The exposure draft replaces the instances of ‘ordinary time’ and ‘appropriate
rate’ with ‘ordinary hourly rate’ which defined in the award and as the AWU points out is not
inclusive of shift penalties.
[410] The bushfire fighting provisions apply in the specific circumstance of a bushfire
burning out of control requiring emergency attendance. These provisions stand in the place of
a number of provisions contained elsewhere in the award including the hours of work, rest
breaks, meal breaks, weekend work and overtime rates. The current drafting of clause 27.1
makes it clear that the employee’s classification immediately before the outbreak of wildfire.
Clause 27.1 also makes higher duties provisions available where applicable. The clause makes
no mention of shiftwork provisions.
[411] The phrase ‘ordinary time’ appeared in the equivalent clause of the pre-modern
Silviculture Award.226 However the phrase ‘appropriate rate’ was not used and overtime
provisions were expressed as at ‘time and one half for the next two hours, and at the rate of
double time thereafter’. The rate ‘ordinary time’ given its ordinary meaning in this context
does not include shift penalties. As the phrase ‘appropriate rate’ contained in the current
award appears to give effect to the equivalent provision in the pre-modern Silviculture Award
we think that the rate being referred to is ‘ordinary time’.
[412] As such, we propose that the phrase ‘ordinary hourly rate’ be retained.
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Item 39 – Annual leave loading
[413] The NFF submits that the change of terminology in clause 16.5(b) of the exposure
draft increases the amount payable for annual leave loading.227 Clause 16.5(b) of the exposure
draft provides the following:
(b) an additional loading of 17.5% of the ordinary hourly rate. (emphasis added)
[414] The current award contains the following provision for annual leave loading at clause
29.7(b):
(b) an additional loading of 17.5% of the minimum rate prescribed in clause 14—
Minimum wages. (emphasis added)
[415] As mentioned in the July 2015 decision, the award modernisation Full Bench
determined that it was not possible to develop a single model clause for annual leave as there
were differing provisions in pre-modern instrument.228 The pre-modern Silviculture Award
made the following provision for the payment of annual leave:
(g) Leave Payment
(i) Payment for period of leave
Each employee, before going on leave, shall be paid in advance the wages
which would ordinarily accrue to him/her during the currency of the leave.
(ii) Annual leave loading
In addition to the payment prescribed in paragraph (i) hereof an employee
shall receive during a period of annual leave a loading of 17-1/2% calculated
on the rates, loadings, and allowances prescribed by Part III - Wage Rates and
Related Matters, Clause 1 - Wage Rates, Part V - Hours of Work, Penalty
Payments and Overtime, Clause 5 - Call Outs and Part VI - Leave and
Holidays With Pay, Clause 1 - Annual leave of this award if applicable,
together with any overaward payment for the ordinary hours of work per
week.
[416] It appears from the wording above that in the pre-modern Silviculture Award the
annual leave loading was calculated including the two all-purpose allowances, the special
allowance and the industry allowance, which was contained in Part III, Clause 1. The
exposure draft contains the following definitions for ‘ordinary hourly rate’ and ‘all purposes’:
ordinary hourly rate means the hourly rate for an employee’s classification specified in
clause 10.1, inclusive of any all purpose allowances
all purposes means the payment will be included in the rate of pay of an employee who is
entitled to the allowance, when calculating any penalties or loadings or payment while they
are on annual leave (see clause 11.1)
[417] In our view the correct rate to calculate the annual leave loading under this award is
the ‘ordinary hourly rate’. The wording proposed by the NFF does not reflect the provision
contained in the pre-modern Silviculture Award and nor does it account for the all purpose
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nature of the special allowance and the industry allowance in the current award. The wording
in the exposure draft reflects the all purpose nature of the allowances and clarifies the correct
approach to calculating the annual leave loading and should be retained.
Item 41– Bushfire fighting—shiftwork
[418] The AWU submits that Schedule A should contain bushfire fighting rates for
shiftworkers. The exposure draft currently provides bushfire fighting provisions for full-time
and part-time employees other than shiftworkers.229
[419] The NFF submits that the bushfire fighting provisions should be in a completely
separate table as the NFF submits that they are standalone provisions. They rely on their
submissions in relation to Item 35.
[420] We agree with the submissions of both parties and propose that the bushfire fighting
provisions be extracted from the table in clause A.2.1 and moved to a standalone clause with a
heading that makes it clear that they apply to all full-time and part-time employees working
on bushfire fighting. For consistency we will also remove the bushfire fighting provisions
from clause A.3.1 and put them in a separate table to make it clear that those provisions apply
to all casual employees working on bushfire fighting.
Items 43, 45 and 46 – Shiftworkers and casual shiftworkers—Sunday rates
[421] The NFF submits that the current award does not specify a Sunday rate for
shiftworkers. The NFF further submits that this reflects the terms of the pre-modern
Silviculture Award.
[422] The AWU submits that clause 13.5(b)(i), which sets out the penalty rates for work on
Sunday, makes no distinction between the types of employees to which it applies and is
therefore applicable to all employees.230 The AWU further submits that clause 14.10 provides
that shiftworkers ‘are paid at the rate of 115% (other than on a Saturday, Sunday or public
holiday)’ which the AWU submits is because on those days other penalties apply.
[423] The AWU proposes inserting an additional Sunday rates column in clause A.2.3 which
sets out the rates for full-time and part-time shiftworkers and clause A.3.2 for casual
shiftworkers. The AWU submits that full-time and part-time shiftworkers are paid 200% for
Sundays and casual shiftworkers are paid 225%.
[424] The current award contains provisions for shiftwork in clause 28. Clause 28.11 sets the
rate for Saturday work at 150%. Clause 28.12 sets out the following provisions for Sundays
and public holidays:
(a) Subject to this clause, the provisions of clause 32—Public holidays will apply to
shiftworkers. Where shifts commence between 11.00 pm and midnight on a Sunday or
public holiday, the time so worked before midnight will not entitle the employee to the
Sunday or public holiday rate.
(b) The time worked by an employee on a shift commencing before midnight on the day
preceding a Sunday or public holiday and extending into a Sunday or public holiday
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must be regarded as time worked on such Sunday or public holiday. Where shifts fall
partly on a Sunday or a holiday that shift the major portion of which falls on a Sunday
or a public holiday will be regarded as the Sunday or public holiday shift.
[425] Clause 32 of the current award states that public holidays are provided for in the NES.
[426] The pre-modern Silviculture Award contains a similar provision in relation to Sundays
and public holidays for shiftworkers:
Subject to this clause the provisions of Clause 37 - Public Holidays and Holiday Work, of
this award shall apply to shift workers. Where shifts commence between 11.00 p.m. and
midnight on a Sunday or holiday, the time so worked before midnight shall not entitle the
employee to the Sunday or holiday rate; provided that the time worked by an employee on a
shift commencing before midnight on the day preceding a Sunday or holiday and extending
into a Sunday or holiday shall be regarded as time worked on such Sunday or holiday. Where
shifts fall partly on a Sunday or a holiday that shift the major portion of which falls on a
Sunday or a holiday shall be regarded as the Sunday or holiday shift.231
[427] It is not entirely clear on the face of the award where the cross reference to ‘clause 37 -
Public Holidays and Holiday Work’ is intended as the award does not contain a clause 37. It
is probable that the reference is to Part IV clause 5 but it is not clear. The pre-modern
Silviculture Award was made by consent in 1999 by the Tasmanian Industrial Commission.232
It does not appear to have been restructured or re-numbered since that time so it is possible
that the error in the reference has existed since the award was made.
[428] In our view it is unlikely that the pre-modern Silviculture Award would have
intentionally contained references to ‘a Sunday or holiday rate’ without containing a Sunday
rate for shiftworkers. Indeed shiftworkers who work on bushfire fighting on Sundays would
be have been entitled to double time. Nor does it seem probable that the pre-modern
Silviculture Award would contain a provision for time and half on Saturdays for shiftworkers
only to have them drop down to ordinary time on a Sunday.
[429] Perhaps the only logical conclusion that can be drawn from the provisions of the pre-
modern Silviculture Award is that the rate for shiftworkers working on Sunday was
accidentally omitted. This omission appears to have been carried over into the current award.
[430] In our view the award should contain Sunday rates for shiftworkers. Our provisional
view is that the appropriate rate for full-time and part-time shiftworkers working on a Sunday
would be 200% of the ordinary hourly rate. Our provisional view is that casual shiftworkers
should be paid 225% of the ordinary hourly rate for Sunday work. On that basis inserting the
following additional clause to clause 14.12 of the exposure draft would be appropriate:
(b) Subject to this clause, employees working shifts on a Sunday will be paid at 200% of
the ordinary hourly rate.
[431] The current clause 14.12(b) of the exposure draft would then would be re-numbered
14.12(c) with the following deletion made:
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(c) Where shifts commence between 11.00 pm and midnight on a Sunday or public
holiday, the time worked before midnight will not entitle the employee to the Sunday
or public holiday rate in clauses 13.5(b)(i) and 13.5(c)(i).
[432] The tables contained in clauses A.2.3 and A.3.2 will be updated to include Sunday
rates for shiftworkers.
[433] Parties have until 4.00pm Friday, 24 November 2017 to comment on our provisional
view and the suggested wording.
Item 44 – Overtime rates for casual employees
[434] The AWU submits that it would be helpful to include overtime rates for casual
employees as they are a cause of confusion. The NFF seeks to be given the opportunity to
comment should overtime rates for casual employees be included.
[435] In the July 2017 Decision, the Full Bench stated that where there is a substantive
entitlement for casuals to overtime then those rates should be included in the award.233 The
current award does not explicitly state that casual employees are entitled to overtime. Clause
10.4(b) states that a casual employee will be paid an hourly rate for the class of work
performed plus a loading of 25 per cent. The overtime provision in clause 26.1 of the current
award provides the following:
‘Except as otherwise provided in this clause, all time worked by an employee in excess of or
outside the ordinary hours of work (inclusive of time worked for accrual purposes) must be
paid at a rate of 150% of the appropriate rate for the first two hours and 200% thereafter.’
[436] From these two clauses the obvious question that arises is what is the ‘appropriate
rate’ for a casual employee. In other words should the 150% or 200% overtime rate be applied
to the rate that includes the casual loading or should both the casual loading and the overtime
rate be applied to the ordinary hourly rate.
[437] The submissions from the parties are silent on this point but, as mentioned, the NFF
seeks the opportunity to comment on any inclusion of overtime rights for casuals in the table
in Clause A.3. It seems to us that it would be unlikely from the wording of the current award
that the overtime rate would be compounded on the casual loading. We are of the view that if
this were intended then the award would contain wording to that effect.
[438] Our provisional view is that casual employees are entitled to overtime and there is no
reason, based on a plain reading of the current award, to assume that casual employees
working overtime would not be entitled to the casual loading. The outcome of this would be
that the casual loading would be cumulative on the overtime rate. We will include tables
reflecting this in the summary of hourly rates schedule in the exposure draft and parties have
until 4.00pm Friday, 24 November 2017 to comment.
Additional drafting issues
[439] We make the following minor change to clause 15.7(c)(iii) to remove a redundant
phrase:
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(iii) the rate of 200% of the ordinary hourly rate after that.
[440] The AWU submits that the definition of ‘silviculture and afforestation’ is not
necessary in Schedule F. The NFF expressed a preference for the definition to remain in the
coverage clause. We will change the definition in Schedule F consistent with the July 2017
Decision.234
[441] There are no other items for this Full Bench to determine for the Silviculture Award.
2.12 Sporting Organisations Award 2010
[442] On 18 December 2015 the Commission published an exposure draft based on the
Sporting Organisations Award 2010235 (Sporting Organisations Award), together with a
comparison document showing the changes to the structure and language of the award.
Interested parties were invited to file submissions about drafting or technical issues in the
exposure draft. Submissions were received from the AWU, AFEI and Business SA. These
parties attended a conference on 30 May 2016 and reached an agreed position on a number of
items in the exposure draft. Deputy President Clancy published a report to the Full Bench on
3 June 2016 that set out the items from the submissions that had not been agreed but would be
the subject of further discussions between the interested parties.
[443] A further conference was held on 9 August 2016 to deal with the outstanding issues.
Additional interested parties participated in this conference. They were Gymnastics Australia,
Tennis Australia, Fitness Australia and ASSA. A second report to the Full Bench was made
by Deputy President Clancy on 25 August 2016. While one of the three outstanding items was
confirmed as withdrawn, the parties remained in dispute regarding the entitlement to overtime
payments for casual employees. Directions were issued on 14 December 2016 and parties
were required to file further material in January 2017 and February 2017. In response, the
following material has been filed:
On 10 January 2017, Gymnastics Australia filed comments in response to the revised
Summary of submissions published on 22 July 2016;
On 10 January 2017, Tennis Australia filed comments in response to the revised
Summary of submissions published on 22 July 2016;
On 11 January 2017, the AWU filed comments in response to the revised Summary
of submissions published on 22 July 2016
On 20 January 2017, Tennis Australia filed submissions in relation to claims it still
pursues;
On 27 January 2017, the AWU filed submissions in relation to claims it still pursues
relating to overtime and casual employment;
On 7 February 2017, Gymnastics Australia, Tennis Australia, the Australian Football
League (AFL) and AFEI issued submissions in reply;
On 13 February 2017, the AWU filed submissions in reply to the submissions of
Tennis Australia dated 20 January 2017.
[444] A further updated summary of submissions was published on 10 October 2017. It is
apparent from this material that the AWU is claiming overtime is payable to coaching staff.
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/sporting-sub-summary-revised-101017.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014245-report-250816.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/am2014245-report-030616.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/Comparison-sporting.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/Exposure-draft-sporting.pdf
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Gymnastics Australia, Tennis Australia, the Australian Football League (AFL) and AFEI
maintain this is a new claim, made in addition to the two outstanding matters, Item 3 and Item
6, and they oppose it.
Item 6 – Rates of pay for junior employees
[445] The AWU proposal is to replace the reference to “% of Grade 1 or 2” in the table in
sub clause 10.2(b)(i) with “% of the appropriate minimum wage in clause 10.2” on the basis
that junior employees should be paid according to their classification. As to the current
award’s wording, the AWU suggested it presumably reflects that junior employees are rarely
employed in higher classifications than Grade 1 or 2 in clerical and administrative roles.
[446] AFEI remains opposed to this claim and favours instead the retention of the wording
in the current version of the Sporting Organisations Award at clause 17.2(b).
[447] While we support in principle the proposition that junior employees should be paid
according to their classification, we would need to be persuaded that this is not occurring due
to the application of the formula in the current award, which has been adopted in the exposure
draft. In the absence of evidence to this effect, we are not persuaded the current formula
should be amended in the terms put by the AWU.
Item 3 – Overtime payments for casual employees and overtime payments for coaching staff
[448] It is clear the parties remain in dispute regarding Item 3 and that the AWU claim for
overtime payments for coaching staff is strongly opposed. The most significant areas of
dispute appear to be:
The AWU claim for casual employees to be engaged to work less than 38 ordinary
hours per week;
The AWU claim for the ordinary hours of work of part time and casual employee not
to exceed 11 hours on any one day;
The AWU claim for the span of ordinary hours to extend to casual employees; and
The AWU claim for coaching staff to be entitled to overtime provisions.
[449] We have noted the AWU’s request for a hearing in relation to the application of
ordinary hours for both this award and the Fitness Industry Award 2010 and that Item 3 and
these various claims will require determination. In light of the nature of the matters in dispute,
the material received to date, and the AWU’s request, we consider these various disputed
items require determination by a separately constituted Full Bench.
Items 4A and 4B – span of hours
[450] These items were considered as related items to item 3 and remain outstanding. In
light of item 3 being referred to a separately constituted Full Bench, we consider it is also
appropriate to refer items 4A and 4B to the same Full Bench.
[451] There are no other outstanding items for this Full Bench to determine for the Sporting
Organisations Award.
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2.13 Sugar Industry Award 2010
[452] The exposure draft for the Sugar Industry Award 2010 (the Sugar Award) was first
published on 15 January 2016 (the 15 January 2015 exposure draft). Deputy President Asbury
conducted conferences with interested parties on 27 April 2016, 26 May 2016, 2 June 2016
and 14 July 2016 to discuss the submissions made in response to the published draft.
[453] The outcome of those conferences (excluding 14 July 2016) was explained in a Report
to the Full Bench (the Asbury DP report) which was published by the Commission on 3 June
2016.236 The Asbury DP report sets out in detail the matters agreed between the parties, those
items which were still being considered by the parties, and those matters which were not
agreed and remain in dispute.
Proposed variations agreed in principle between the parties
[454] Revised versions of the exposure draft were published on 1 June 2016 (the 1 June
2016 exposure draft) and again on 3 June 2016 (the 3 June 2016 exposure draft) which
incorporated the changes agreed to by the parties. Some of those changes included moving
entire clauses and has resulted in numbering changes which change clause numbers between
the 15 January 2015 exposure draft and the 3 June 2016 exposure draft. For the purposes of
this decision we will refer to the clause numbers as they appear in the 3 June 2016 exposure
draft unless otherwise advised.
[455] We are content to accept the changes agreed to by the parties (outlined in Annexure A
to the Asbury DP report) with the following three exceptions.
Item 4 – National Employment Standards
[456] The NFF submitted that clause 2.3 of the 15 January 2015 exposure draft should be
amended to reflect the wording in the Sugar Award and should make provision for situations
where there is no noticeboard of internet coverage.237 The Asbury DP report advises that the
parties have agreed to amended wording, and that wording was reflected in clause 3.3 of the 3
June 2016 exposure draft.
[457] The revised wording suggested for clause 3.3 of the 3 June 2016 exposure draft would
be inconsistent with the standard clause in all other modern awards. This standard clause was
determined by the Full Bench in the Group 1 stage of the 4 yearly review.238 We are not
persuaded to adopt this variation and the exposure draft will be amended to retain the standard
clause.
Item 13 – Types of employment – seasonal employment
[458] The Asbury DP report notes that the parties have agreed that the definition of
‘seasonal employment’ in the 15 January 2015 exposure draft should be deleted from “Clause
2 – Definitions” and inserted into “Clause 7 – Types of employment” as a new employment
category (Sugar Award clauses 3 and 11). The parties have proposed to insert the following
into clause 7.6
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/exposure-draft-sugar.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/exposure-draft-sugar-030616.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/exposure-draft-sugar-030616.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/exposure-draft-sugar-030616.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/exposure-draft-sugar.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/exposure-draft-sugar-030616.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/exposure-draft-sugar-030616.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/exposure-draft-sugar.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/exposure-draft-sugar-030616.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/exposure-sugar-revised.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/exposure-sugar-revised.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/exposure-draft-sugar.pdf
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7.6 Seasonal employment
(a) A seasonal employee is an employee engaged by the employer on a full
time or part time basis, on or about the commencement of the crushing
season, for the purpose of performing duties directly and indirectly
related to crushing season operations and whose duties are completed
and employment terminated on or about the end of the mill’s crushing
season.
(b) For the purpose of a 38 hour week only, all employees not specifically
engaged as seasonal who are engaged after the first Monday of June in
any one year and before the first Monday in June in the subsequent
year, will be deemed to be seasonal until the first Monday of June in
that subsequent year
[459] This variation presents a number of possible issues. We agree that the definition of
seasonal employee from the current award contains both a definitional element but, more
problematically, an element that affects substantive entitlements which may be more
appropriately dealt with elsewhere in the award.
[460] We are not convinced, however that the solution proposed by the parties will
overcome the cross-purposes of this clause. In addition the so-called ‘deeming’ provision of
proposed clause 7.6(b) affects the entitlements of employees who are not specifically engaged
as seasonal employees so may be inappropriately placed in a clause entitled ‘Seasonal
employment’. It seems to us that this proposed change is a substantive issue and would be
better dealt with by a separately constituted Full Bench.
Item 23 – Hours of work – altering the spread of hours
[461] The Asbury DP report notes that the parties have agreed to delete clauses 11.3(c) and
(d) and inserting a new clause 11.3(c) (see 3 June 2016 exposure draft). The parties agreed
clause is as follows:
(c) Altering the spread of hours
(i) The ordinary hours of work are to be worked continuously, except for meal
breaks, at the discretion of the employer. 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.
(ii) Where the spread of hours is altered in accordance with sub clause 11.3(c)(i),
work outside the hours of 6.00 am to 6.00 pm will be paid at overtime rates
and will be deemed to be part of the ordinary hours of work for the purposes
of clause 11—Ordinary hours of work and rostering—other than shiftworkers.
[462] In our view, the agreed position of the parties alters the operation of the provision in
the current award. To our mind the ‘Altering of spread of hours’ provision is included in the
award to allow parties to agree to increase the spread of ordinary hour by up to two hours. To
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/exposure-draft-sugar-030616.pdf
[2017] FWCFB 5536
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make the change as proposed by the parties would mean that, even if parties had agreed to
alter the spread of hours, the employer would still be required to pay an employee working
during the altered spread of hours at the overtime rate.
[463] We do not consider this reflects the current award provision. The new clause 11.3(c)
contains two parts, (i) and (ii). Having considered the parties’ agreed position, it is our view
that item (ii) should not be contingent on item (i). Our provisional view is that existing
clauses 11.3(c) and (d) should be retained but that 11.3(d) should be amended to clarify when
overtime is payable as follows:
(c) Altering the spread of hours
The ordinary hours of work are to be worked continuously, except for meal breaks, at
the discretion of the employer. 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.
(d) Work done outside the hours of 6.00 am to 6.00 pm, other than in accordance
with clause 11.3(c), will be paid at overtime rates and will be deemed to be part of the
ordinary hours of work for the purposes of clause 29—Ordinary hours of work and
rostering—other than shiftworkers.
(emphasis added)
[464] Parties are invited to comment on the proposed amendment to clause 11.3(d) as per the
“Next Steps” set out below at [593] by 4.00 pm Friday, 24 November 2017.
Proposed variations not agreed between the parties
Item 6 – Coverage
[465] Parties were asked whether the terminology used to describe the various sectors of the
sugar industry in clauses 4.2(b) to (e) (the Coverage clauses) should be consistent with the
definitions of those sectors contained in the definitions clause. Clauses 4.2(b) to (e) read as
follows:
‘4.2 In this award sugar industry means the following:
…
(b) sugar milling including the following operations of the sugar miller: cane railway
construction, maintenance, repair and operation; factory maintenance, repair and
operation; raw sugar refining at a sugar mill; by-product manufacture and processing
at a sugar mill; and packaging operations performed at a sugar mill;
(c) refining raw sugar at sugar refineries and those refineries’ packaging operations;
(d) distilling sugar by-products for industrial purposes and packaging work in a
distilling operation directly linked to a sugar mill;
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(e) bulk (packed or loose) receival, storage, outloading and ship loading at the
industry’s bulk terminals, including handling incidental commodities or material;…’
[466] The relevant definitions (contained within Clause 2—Definitions) read as follows:
‘2. Definitions
In this award, unless the contrary intention appears:
…
bulk terminal operations means all handling and storage operations of the bulk sugar
terminals of sugar, its products or any other commodity the terminals may handle from
time to time
…
distillery sector means all distilling operations of sugar by-products for industrial
purposes and packaging operations in a distillery directly linked to a sugar mill
…
milling sector means the operations of transporting and processing cane including all
rail construction, maintenance and operation; factory maintenance and operation;
sugar cane by-product manufacture and processing at a sugar mill; and packaging and
storage operations performed at a sugar mill
…
refinery sector means all refining operations of raw sugar at sugar refineries and
those refineries own packaging and storage operations’
[467] The DP Asbury report advises that the parties do not accept that there is an issue with
inconsistency between the respective provisions and contend that the provisions should not be
amended.239
[468] We are concerned that the inconsistent terminology may create ambiguity and intend
for this matter to be canvassed further by the separately constituted Full Bench.
Item 10 – Coverage
[469] The NFF submitted that clauses 4.3 and 4.7 deal with the same matters and should not
both be included in the exposure draft.240
[470] Clauses 4.3 and 4.7 read as follows:
4.3 Where a sugar industry employer is also engaged in another industry not
covered by this award the employees of that employer in the other industry will be
covered by the industry award of that other industry.
…
4.7 Where an employer is covered by more than one award, an employee of that
employer is covered by the award classification which is most appropriate to the work
performed by the employee and to the environment in which the employee normally
performs the work.
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[471] In their respective submissions in reply, the AMWU241 and Ai Group242 stated that
they did not view the two provisions as being incompatible, but rather aimed at differing
circumstances. The AMWU and Ai Group support the retention of the two clauses.
[472] The AWU submitted that the wording of clause 4.3 was ambiguous and should be
deleted. It submitted that issues of overlapping award coverage would then be dealt with by
clause 4.7. It was noted by the AWU that this was the general approach adopted across other
modern awards.243
[473] We agree that clauses 4.3 and 4.7 apply in different circumstances and are not
incompatible. The existing clauses will be retained.
Item 11 – Facilitative Provisions
[474] The NFF submitted that the list of facilitative provisions at clause 6.2 should be
exhaustive and refer to all facilitative provisions in the award that “permit parties to agree on
award variations”.244 In the December 2014 Decision the Full Bench determined that it is
desirable for awards to contain an index of facilitative provisions.245
[475] The AMWU has advised the Commission that there is substantial agreement between
the parties as to the list of provisions to be included.
[476] Parties have until 4.00pm Friday, 24 November 2017 to provide an agreed list of
facilitative provisions for clause 6 for the consideration of the Full Bench.
Items 19 and 20 – Apprentices
[477] Clause 8 contains provisions relating to apprentices engaged in the sugar industry. The
NFF submitted that references to training authorities contained within the clause require
updating. It was submitted that references to ‘Manufacturing Skills Australia or its
successors’ and ‘the National Skills Standards Council or its successor’ should be amended so
that the clause refers to the ‘Ministerial Council for Tertiary Education and Employment’.246
There was no objection to this during the conferences convened by Asbury DP,247 and no
subsequent submissions were received on this issue. This issue also affects Schedule H of the
Exposure Draft. Changes to Schedule H – National Training Wage – will be dealt with by the
Full Bench dealing with the National Training Wage common issue (AM2016/17).
[478] Upon investigation by staff at the Commission, it was discovered that the Ministerial
Council for Tertiary Education and Employment was succeeded in 2011 by the Standing
Council of Tertiary Education, Skills and Employment.248 In 2014, the Standing Council
became known as the Education Council.249 While we are content to update references to
relevant education and training bodies we are conscious of the frequency with which these
bodies are reconstituted or renamed. Therefore, we intend to retain the words ‘or its
successor’ where relevant, and amend clauses 8.4 and 8.5 of the exposure draft to read as
follows:
‘8.4 An apprentice may be engaged under a training contract approved by the relevant
apprenticeship authority, provided the qualification outcome specified in the training
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contract is consistent with that established for the vocation in the relevant training
package determined from time to time by Manufacturing Skills Australia or its
successors and endorsed by the Council of Australian Governments (COAG)
Education Council Industry and Skills Council or it successor. Such apprenticeships
include but are not limited to the following trades:
(a) Engineering Tradesperson (Mechanical);
(b) Engineering Tradesperson (Fabrication);
(c) Engineering Tradesperson (Electrical/Electronic);
(d) Higher Engineering Tradesperson and Advanced Engineering Tradesperson.
8.5 An apprentice may also be engaged where the qualification outcome specified in the
training contract is consistent with the qualifications established for electrical
vocations within the relevant electrical/utilities training package and endorsed by the
COAG Industry and Skills Council or its successor.’
Item 21- Overtime and penalty rates – other than shiftworkers and Items 55, 55A and 55B –
Shiftwork
[479] The FWO in correspondence regarding the awards in Groups 3 and 4 noted that
“award users may have difficulty determining the correct Sunday rate for field sector
employees”.250 The exposure draft published 15 January 2015 asked parties to clarify the
interaction between clauses 10.2(c) and 25.2(b) of that exposure draft and queried what the
correct rate is for field sector employees working on a Sunday.
[480] The AWU agreed that the rates applicable to shift work on the weekend by field
workers is unclear.251 The AWU submitted that cl 11.2(c) of the 3 June 2016 exposure draft
states all ordinary time worked on Saturdays and Sundays by field sector employees will be
paid at 150% of the minimum hourly rate; however the heading for clause 11 suggests that the
ensuing provisions only apply to day workers (i.e. excluding shiftworkers).252
[481] The parties agreed, in principle, to a variation to clause 25.2 as follows:
‘25.2 Payment for working rostered day off, or overtime on Saturdays or Sundays
(a) An employee, other than a bulk sugar terminals employee, required to work on a
rostered day off or overtime commencing on Saturday will be paid at 150% of the
minimum hourly rate for the first three hours and 200% of the minimum hourly rate
after that for a minimum of three hours.
(b) All work done An employee required to work overtime commencing on a Sunday
must be paid at 200% of the minimum hourly rate with a minimum of three hours’
work or payment provided the employee is available for work for three hours’.’
[482] The parties advised DP Asbury that they were considering the impact the above
change would have for bulk sugar terminals employees. The Asbury DP report indicates that
the parties were considering the insertion of the following text to deal with bulk sugar
terminals employees as follows:
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‘Proposed new clause 26.X - Extra weekend payments for continuous shift work – bulk
sugar terminals
For bulk sugar terminal employees where continuous shift work is regularly performed on a
three shifts per day basis, over a period of seven days per week, all time worked up to eight
hours in any shift between midnight Friday and midnight Saturday must be paid at 150% of
the minimum hourly rate and between midnight Saturday and midnight Sunday, at the rate of
200%.’
[483] Related to these submissions is the AWU submission that the current definition of
shiftwork at clause 26.2 of the Sugar Award (which remains in the most current 3 June 2016
exposure draft) creates ambiguity with the provisions which follow because those provisions
are not confined to employees working in a 24/7 continuous operation. The AWU submitted
that the definition at cl 26.2 appears more directed at the entitlement to an additional week of
annual leave for the purposes of the NES (which is outlined at clause 27.2).253
[484] A new definition of shiftwork in clause 26.2(a) was proposed in the Asbury DP report
as follows:
‘(a) Shiftworker is an employee who can be regularly rostered to work in accordance with a
roster where more than one shift a day is worked or on Sundays and public holidays where the
employer operates shifts continuously rostered 24 hours a day seven days a week.’
[485] Interested parties provided submissions in response to the draft clause. The AWU
submitted that the penalty rates for shift workers are ambiguous in the Sugar Award and the
exposure draft.254 The AWU submitted that its position on the proposed variation was
dependent on whether the provisions in the exposure draft adequately deal with the rates
payable for ordinary hours worked on a Sunday for all classes of employees.255 The AWU
submitted that the definition of ‘shiftworker’ in clause 26.2(a) should clause 26.4be amended
as per the Report to the Full Bench (above) and suggested an amendment to deal with the
residual issues.
[486] The Australian Sugar Milling Council (ASMC) agreed that the Sugar Award is silent
on weekend penalty rates for bulk terminals.256 ASMC agrees to the amendment proposed by
the AWU so long as it does not result in two penalty rates applying to the same hours of work.
[487] The ASMC noted that Bulk Terminals should be defined separately, not captured in a
general ‘other’ category. The AWU amendment to clause 26.4 is as follows:
‘26.4 Extra weekend payments – other than field sector
(a) Sugar milling
For sugar mill employees, where continuous shiftwork is regularly performed on a
three shifts per day basis, over a period of seven days per week, all time worked up to
eight hours in any shift between midnight Friday and midnight Sunday must be paid at
150% of the minimum hourly rate. Such payments will be in addition to any
allowance payable for the working of an afternoon or night shift.
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(b) Bulk terminals
For bulk terminal employees, shift work ordinary hours performed between midnight
Friday and midnight Saturday must be paid at the rate of 150% of the minimum hourly
rate. Shift work ordinary hours performed between midnight Saturday and midnight
Sunday must be paid at the rate of 200% of the minimum hourly rate.’
[488] We acknowledge that it may be difficult to determine the correct rate for field sector
employees (both day workers and shift workers) working on a Sunday. The variation to clause
25.2, as outlined above, would clarify payments on the weekend for overtime.
[489] The variation for 25.2 set out above necessitates a change to deal with ordinary hours
worked on the weekend by field sector shift workers.
[490] Our provisional view regarding the existing definition of ‘shiftwork’ in clause 26.2(a)
is that it should not be amended. Unless the parties provide a persuasive submission as to why
the definition should be varied, the current clause will be retained.
[491] Following consideration of the parties’ submissions, our preliminary view is to
abandon the proposed clause 26.X and adopt the AWU’s proposed amendment to clause 26.4
(above); however the amendment will require further drafting. Parties are invited to comment
further on the proposed amendment to clause 26 as per the “Next Steps” set out below at
[594] by 4.00 pm Friday, 24 November 2017.
Item 31 – Meal breaks on overtime
[492] The 15 January 2015 exposure draft queried whether the award should provide an
alternative to the employer supplied overtime meal for the field sector. The 15 January 2015
exposure draft noted that as the Sugar Award is currently drafted, the milling, distillery,
refinery and maintenance and bulk sugar terminal operations sectors provide a meal
allowance as an alternative to the provision of a meal.
[493] The Asbury DP report notes that this variation is not pressed (see summary of
submissions amended).
Item 33 – Single contract hourly rate
[494] Clause 13 provides for minimum wages in the field sector. The clause provides that
field sector employees may be engaged in writing on a single contract hourly rate basis.
[495] The Asbury DP report notes that the parties have agreed to an amendment to clause
13.2(a) of the exposure draft to provide as follows;
‘13.2 Single contract hourly rate
(a) Field sector employees may be engaged in writing on a single contract hourly rate
basis and will be paid 115% of the minimum hourly rate and must be paid that rate for
each and every hour of work, instead of the provisions of clauses 11.2(c), irrespective
of the number of hours worked per day or per pay period or the days of the pay period
on which work is performed.’
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[496] The NFF and Canegrowers Mackay have subsequently advised the Commission of an
issue in relation to the table of rates contained in clause 13.1. The NFF submitted that the
inclusion of the column in the table of rates headed “Single contract hourly rate” has the
effect of changing the minimum hourly rate for employees engaged on this basis so that it
includes the 15% loading for all purposes.257 The NFF submits that this is due to the operation
of cl 13.2(b) which defines the minimum hourly rate for employees engaged.258
[497] The NFF proposes that the column in clause 13.1 headed “Single contract hourly rate”
be deleted and that the proposed change to clause 13.2(a) be amended as follows:
‘13.2 Single contract hourly rate
(a) Field sector employees may be engaged in writing on a single contact (sic) hourly rate
basis and will be paid a 15% loading above the minimum hourly rate for each hour
actually worked instead of the provisions of clauses 11.2(c), 25.1 and 25.2,
irrespective of the number of hours worked per day or per pay period or the days of
the pay period on which work is performed.’
[498] The NFF propose a new clause 13.2(d) be added as follows:
‘To avoid doubt, the 15% loading payable under clause 13.2(a) does not apply to payment for
public holiday and leave entitlements.’
[499] The AWU does not oppose an amendment to clarify that the 15% loading is not paid
in addition to public holiday penalty rates and generally accept that the 15% loading would
not currently be paid on periods of annual leave under the modern award or the NES. The
AWU note however that any amendment made to the clause should be worded in a manner
that does not purport to remove the entitlement for periods of long service leave.259
[500] We propose to amend the table of rates and insert a new clause 13.2(d). Parties are to
provide any objections to this proposal and/or comments by 4.00pm Friday, 24 November
2017.
Item 45 - Allowances
[501] The 15 January 2015 exposure draft queried whether a measurements of weight and
height—appearing at clauses 16.1(f)(ii) and 16.1(r), respectively—could be rounded to
simpler figures. The sub clauses provide as follows:
‘(f) Carting and/or handling cement
(i) Employees engaged in carting and/or handling cement must be paid an
allowance of $3.13 per day in addition to their ordinary wages whilst so
engaged.
(ii) This will not apply when quantities of less than 508 kg are carted or handled.
…
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(r) Height money
(i) Employees must be paid an allowance of $0.33 per hour when required to
perform work at a height of between 15.24 and 22.86 metres above the ground
or low water level or nearest horizontal plane.
(ii) Employees must be paid an allowance of $0.51 per hour when required to
perform work at a height of more than 22.86 metres above the ground or low
water level or nearest horizontal plane.’
[502] It appears that the figures have been converted from imperial measurements. 508 kg is
equal to 80 stone, and 15.24 and 22.86 metres equal 50 and 75 feet, respectively. Similarly,
the reference to 76.2 cm in clause 16.3(ee) appears to have been converted from 2 feet 6
inches.
[503] Whilst the parties are not opposed to the above measurements being rounded to a
simpler measurement there was no agreement about how that rounding should occur. The
Asbury DP report indicates that the union and employer parties are opposed to rounding that
would disadvantage or advantage, respectively, employees.260
[504] We agree that the literal conversion from imperial to metric measurements are very
specific and propose to round the figures, as follows: 510kg, 15 metres and 23 metres. Parties
are to provide any objections to this proposal and/or comments by 4.00pm Friday, 24
November 2017.
Item 47 - Hot work allowance
[505] Clause 16.1(t)(iv) provides that the ‘hot work’ allowance is payable ‘instead of any
other provision relating to hot work, unpleasant conditions, confined spaces repair work or
dirty work; provided that the rates for wet, hot or noxious gas fumes confined space and repair
work in this award will not be paid in addition’. The 15 January 2015 exposure draft stated
that it appeared unclear what allowances are not payable when the hot work allowance is
paid. Accordingly, parties were asked to specify which clauses they believed did not apply in
these circumstances.
[506] The Asbury DP report notes that the parties do not wish to identify the allowances that
do or not apply in addition to the hot work allowance.261
[507] We are of the view that the award should specify which allowances are and are not
payable at any time. This matter will also be referred to a separately constituted Full Bench
for further consideration.
Items 50, 62, 63, 64, 64A, 64B, 64C – Schedule D – Summary of Hourly Rates of Pay
[508] As with most exposure drafts, this exposure draft includes a schedule containing a
summary of hourly rates of pay. The Employer parties seek the deletion of, or alternatively
the simplification of, the tables. The Union parties seek to retain the schedule.
[509] If the Schedule is to be retained, there were a number of issues identified in relation to
the Schedule as follows.
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[510] The 15 January 2015 exposure draft sought clarification from the parties as to the
effect clause 17.3(b) and (c) of that draft in respect of the hourly rates set out in Schedule D.2
(which are based on a 38 hour week).
[511] The parties advised that the hourly rates prescribed in Schedule D.2 are calculated on a
38 hourly divisor and the schedule does not contemplate those employees whose pay rates are
calculated on a 36 or 40 hourly divisor (as provided for in clause 17.3(b) and (c) of the 15
January 2015 exposure draft; renumbered as 15.3(b) and (c) in the 3 June 2016 exposure
draft). It was proposed by AiGroup that a clear notation should be inserted that the Schedule
D.2 hourly rates do not necessarily apply.262
[512] The NFF submitted that the columns dealing with Saturday and Sunday overtime rates
should be deleted or alternatively, amended to make clear that the rates only apply after 152
hours in 4 weeks has been exceeded (for example those contained in Schedule D1.2).263 The
AWU in reply assert that ordinary hours have to be fixed under clause 11.2(a) and hours in
addition to these will be overtime, even if the 152 hours over a 4 week period has not been
worked.264
[513] The AWU submitted that the column containing Monday to Friday rates in Schedule
D.3.1 are incorrect and should be deleted. The AWU notes that the permanent employee rate
for ordinary hours within this period is 100% and hours outside this span would be paid at the
overtime rate of 200%.265 The AWU submitted the same error is contained in Schedule
D.3.4. The ASMC advised that it agrees with the AWU’s view that the column is incorrect.
[514] The AWU submitted that Schedule D.3.2 should be amended to include in the heading
a reference to shiftworkers, as the rates contained therein are only payable to
shiftworkers.266 The AWU submitted that the column heading “other than day shift” would be
clearer if it read “continuous afternoon/night shift or no rotation to day shift” with a footnote
to clause 26.5. The AWU submitted that this change would also be required for Schedule
D.3.5.267 The ASMC submitted that the added text for the Schedule should be “continuous
shift worker”.268
[515] The AWU submitted that the word “shiftworkers” should be deleted from Schedule
D.3.3 as the overtime rates are payable to all employees in bulk terminals.269
[516] These matters will be referred to a separately constituted Full Bench.
Item 58A – Inconsistent terminology
[517] In line with their submissions regarding a number of exposure drafts, the Ai Group
submitted that the exposure draft contains inconsistent terminology with regards to additional
rates of pay such as penalty rates and loadings.270 The Ai Group submitted that the exposure
draft contains such an inconsistency in clauses 26 and 27.271
[518] This has been addressed in the first Group 3 decision. (See [2017] FWCFB 3433 at
[367]-[377]). It is also discussed further at [526] below.
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Item 59 – Calculation of annual leave – bulk terminal operations
[519] The exposure draft published 15 January 2015 asked parties whether clause 27.6(c)
required clarification. The note in the exposure draft stated that “[t]his provision appears to
have been taken from AN140048 - Bulk Terminals Award - State 2003”.
[520] The Asbury DP report noted that clause 27.6(c) deals with the ability for employees to
convert additional travel days to superannuation contribution but noted that the current
modern award does not provide for an entitlement to the additional travel days. The Asbury
DP report noted that these additional travel days are found in enterprise agreements.
[521] The parties appeared to agree that the provision required clarification. The AWU
submitted that the provision needs to be clarified with reference to the predecessor
instrument.272 Ai Group submitted that should the AWU submission be accepted, the Ai
Group requested that the parties be given an opportunity to review and provide comments in
respect of that change.
[522] We consider it is appropriate to delete clause 27.6(c) this will be reflected in the
revised exposure draft.
Item 61 – Dispute resolution
[523] It was noted in the 15 January 2015 exposure draft that the wording of clause 35.6
differed from the standard wording for this type of clause, in that it refers to a direction that is
‘safe and legal’ for the employee to perform, instead of ‘safe and appropriate’. Parties were
asked whether the different wording should be maintained or replaced with the standard
wording. The parties indicated that the existing wording should be retained.273
[524] We have been unable to find any explanation for this unique terminology. It was not
discussed in Stage 3 of the award modernisation process, in either the statement or the
decision.274 We believe that, in order to avoid any ambiguity or uncertainty, the standard
wording should be adopted.
Proposed variations which are not agreed and are substantive in nature
Item 17 and 34 – Piecework Rate
[525] In correspondence to the Commission of 2 March 2015, the FWO noted that there was
uncertainty as to whether the casual loading applies to piecework rates and, if so, that there
was further uncertainty as to its interaction with the 20% piecework loading.275
[526] The Report to the Full Bench notes that the employer parties seek to have the matter
referred to the Casual Employment Full Bench (AM2014/197), and that the Union parties
seek to have the issue addressed by this Full Bench. As the Casual Employment common
issue is drawing to a close, with substantive hearings and deadlines for submissions having
already passed, it is not possible to refer this issue to that Full Bench at this late stage.
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[527] We agree that this matter warrants further consideration. It will be referred to a
separate Full Bench for consideration.
Item 42 – Tool allowance
[528] The AMWU, in its submission of 2 February 2015, proposed the insertion of a tool
allowance for apprentices employed under the Sugar award. The AMWU submitted that this
could be achieved by either creating a separate entitlement for apprentices, or by making the
current tool allowance—applying to tradespersons—applicable to apprentices.276
[529] The AMWU made a similar application during the 2012 Review, and pointed to a
number of other modern awards containing tool allowances for apprentices. It also submitted
that some pre-reform awards (that were forerunners to the current modern awards) provided
for apprentices to receive a tool allowance.277 This application was opposed by Ai Group.
[530] The application was refused by a Full Bench of the Commission, which commented
that:
‘Whilst we accept that the entitlement of apprentices to tool allowance was not the subject of
any substantive consideration in the making of the modern award, it would seem that it also
was not a matter of contention at the time between the parties. Although there was an
entitlement under previous awards to tool allowance for some groups of apprentices now
covered by the Sugar Award, it has not been demonstrated that the absence of such entitlement
in the modern award means that the award is not operating effectively or fails to meet the
modern awards objective. We are not persuaded on the limited material and submissions
presented that the proposed variation should be made.’278
[531] In the matter currently before us, the AMWU has noted that it anticipates the issue
being referred to a separately constituted Full Bench.279
[532] We agree that an evidentiary case would be required to determine whether a new
allowance should be inserted in the award. If the AMWU intends to pursue the claim it will be
referred to a separate Full Bench. The AMWU is asked to advise whether it will pursue the
matter as per the “Next Steps” set out below at [593].
Next steps – Sugar Award
[533] A further updated summary of submissions was published on 10 October 2017. An
amended exposure draft has been prepared and will be published following the issuing of this
decision. The following issues have been noted previously in the decision and require further
information from the interested parties before they can be finalised.
[534] As per [463] above, parties are invited to comment on the proposed amendment to
clause 11.3(d). Submissions should address the intention of each clause and the circumstances
where overtime rates are payable. Submissions are due by 4.00pm Friday, 24 November
2017.
[535] As per [490] above, parties are invited to comment on the proposed amendment to
clause 26.4. Submissions should address the following questions:
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Are there any interaction issues with clause 26.3(b), concerning ordinary hours of
work and proposed extra weekend payments for continuous shift work for work on
weekends which is within ‘ordinary hours of work’?
Would there be an extra payment for continuous shift workers working ordinary
hours between midnight Friday and midnight Sunday?
Would bulk sugar shift workers still be entitled to penalty rates for working
afternoon and night shifts on weekends as per clause 26.5?
How would ‘all time worked up to 8 hours’ interact with the ordinary hours of a shift
worker in clause 26?
Does the proposed ‘minimum hourly rate’ refer to that of a shift worker (with
loading) or that of a permanent employee?
Is there reason why bulk sugar terminals does not have equivalent entitlements to
shift workers as sugar milling?
[536] Submissions addressing these points are due by 4.00pm Friday, 24 November 2017.
[537] The AMWU is directed to advise whether it will pursue the claim to introduce a tool
allowance for apprentices, by 4.00pm Friday, 24 November 2017. If the claim is being
pursued it will be referred to a separately constituted Full Bench for consideration.
2.14 Wine Industry Award 2010
[538] On 15 January 2016 the Commission published an exposure draft based on the Wine
Industry Award 2010280 (Wine Industry Award), together with a comparison document
showing the changes to the structure and language of the award. Interested parties were
invited to file submissions about drafting or technical issues in the exposure draft.
Submissions were received from the AWU, United Voice, AFEI, the NFF, ABI, the Ai
Group, the South Australian Wine Industry Association (SAWIA) and the FWO. A
conference was held on 1 June 2016. With the exception of the FWO, it was attended by
representatives of those organisations. Business SA also participated.
[539] Deputy President Clancy published a report to the Full Bench on 3 June 2016 that set
out a number of the proposed variations to the exposure draft that were agreed, a number that
were not agreed and a list of items from the submissions that would be the subject of further
discussions between the interested parties. The report also noted that a number of items had
been referred to separately constituted Full Benches of the Commission.281
[540] A further conference was held on 8 August 2016 to deal with the outstanding issues. A
second report to the Full Bench was made by Deputy President Clancy on 25 August 2016.
This indicated that the parties had reached agreement on some of the outstanding matters,
while other matters remained outstanding. We deal with the outstanding matters below.
[541] The second report to the Full Bench outlined that the 8 August 2016 conference was
attended by representatives of:
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AFEI;
Ai Group;
NFF;
SAWIA;
AWU; and
United Voice.
[542] At the conference the parties discussed the exposure draft of the Wine Industry Award
as published on 29 July 2016 and the Summary of Submissions dated 26 July 2016 completed
by the Commission and worked through the items outlined in Attachments B and C of the
Report to the Full Bench dated 3 June 2016. A further updated summary of submissions was
published on 10 October 2017.
[543] A number of proposed variations were agreed to by the parties and are summarised in
Attachment A to the Deputy President’s first and second reports to the Full Bench. We do not
propose to deal with each and every agreed item in this decision. The 37 items that are agreed
will be incorporated into the exposure draft.
[544] Items 74 and 75 have been determined by a separately constituted Full Bench.282
[545] As to item 77, the parties expressed the view that a comparison of the definition of
“wine industry” in the Wine Industry Award and the definition of “wine industry” in others
should be undertaken by the Commission, including an assessment of any inconsistencies.
[546] The definition of ‘wine industry’ is identical in the Wine Industry Award 2010 and the
Pastoral Award 2010. We indicated in our consideration of this issue as it relates to the
Horticulture Award, that we did not consider there would be any unintended substantive
changes to Award coverage if we were to amend the relatively minor differences in the
exposure draft for the Horticulture Award so that it matches the definition of ‘wine industry’
used in both the Wine Industry Award and the Pastoral Award. Further, we noted the other
‘agricultural awards’, comprising the Aquaculture Industry Award 2010, the Seafood
Processing Award 2010, the Silviculture Award 2010 and the Sugar Industry Award 2010, do
not have a definition of ‘wine industry’.
[547] A consistent definition of ‘wine industry’ will therefore be achieved through the
amendment the exposure draft for the Horticulture Award 2016 in the manner we have
foreshadowed.
[548] A query was raised in relation to the wording of the exposure draft for the Wine
Industry Award 2015, as published on 29 July 2016 and the extent to which it reflected agreed
positions in relation to items 15 and 16.
[549] As to item 15, the parties submitted that in previous discussions wording for Clause
6.5(a) was agreed, such that the exposure draft of the Wine Industry Award 2015, as
published on 29 July 2016, should be amended to read “A casual employee is an employee
who is engaged and paid as a casual employee”.
[550] As to item 16, the parties submitted that there is agreement for the insertion of words
at the start of Clause 6.5(a), such that the exposure draft of the Wine Industry Award 2015, as
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published on 29 July 2016, should be amended to read “Except in the case of pieceworkers,
for each ordinary hour worked, a casual employee must be paid…”.
[551] The amendments to the exposure draft set out at paras [549]–[549] above (items 15
and 16) will be made to the exposure draft.
[552] The December directions requested parties to file comments on the further revised
summary of submissions document and the revised exposure draft (both published on 29 July
2016). Parties were to identify which technical and drafting clams were being pursued and
whether any party still contends that a clause in the revised exposure draft has a different legal
effect to the current modern award.
[553] The directions noted that the Full Bench would determine the matter on the basis of
the material filed without an oral hearing unless a hearing is requested by a party. No such
request was received.
[554] We deal with the outstanding issues below.
Item 31 – Daylight savings
[555] The interested parties previously indicated that they may benefit from further
discussions about the AWU’s proposal to vary clause 8.7. No further update has been
provided to the Full bench about the status of these discussions. Interested parties have until
4.00pm Friday, 24 November 2017 to confirm whether this variation is being pursued and
whether any agreement has been reached.
Item 35 – Working through meal break
[556] In the 25 August 2016 report Deputy President Clancy noted that while the wording
for Clause 9.3(a) of the exposure draft is agreed, the wording of Clause 9.4 of the exposure is
not yet agreed. The Deputy President noted at that time that the issue arising under Clause 9.4
was that the SAWIA and the Ai Group supported the wording in the exposure draft, the AWU
and NUW submitted the loading should be applied to the rate then applying to the employee
and the NFF and AFEI did not consider the loading to be a cumulative loading.
[557] In response to the December directions, United Voice filed submissions dated
20 January 2017 in support of its claim. It firstly outlined that clause 29.4 of the current award
provides:
‘An employee not given a meal break in accordance with clauses 29.1, 29.2 and 29.3 must be
paid from then on a loading of 50% until the meal break is given.’
[558] For purposes of context, United Voice also outlined:
Clause 29.1, which provides that a day worker must not be required to work more
than 5 hours without an unpaid meal break;
Clause 29.2, which provides that a shift worker must not be required to work for
more than 4 and a half hours without a paid meal break; and
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Clause 29.3, which provides that an employee required to work more than 2 hours
overtime must be given a paid meal break prior to the commencement of the
overtime and after each 4 hours of overtime worked thereafter.
[559] United Voice noted that clause 29.4 provides that if, in any of the above
circumstances, the meal break is not provided, a loading of 50% is given and submitted that
the 50% is applied to the hourly rate applying to the employee (not the minimum hourly rate).
United Voice submitted that clause 29.4 of the current award does not specify the rate by
reference to which the loading is calculated, leaving the rate to be determined by the
circumstances, depending on whether it is day work, shift work or overtime after the initial
two hours of overtime. It submits this construction is supported by the final sentence of clause
29.3, which provides that meal breaks prior to commencing and during overtime must be paid
‘at the rate then applying’ and envisages the rate will differ according to circumstances.
[560] Clause 9.4 of the exposure draft provides:
9.4 Working through meal break
An employee not given a meal break in accordance with clauses 9.1, 9.2 and 9.3 must be paid
from then on with an additional loading of 50% of the minimum hourly rate until the meal
break is given.
[561] The ‘minimum hourly rate’ for each classification is set out in clause 10.1 of the
exposure draft. United Voice submit it is clear that the minimum hourly rate is the hourly rate
for day workers performing work in the span of ordinary hours (between 6.00 am and 6.00 pm
Monday to Friday) and therefore, the legal effect of clause 9.4 is to provide an additional
loading of 50% of the day worker ordinary hourly rate. United Voice submits the effect of the
adoption of the concept of ‘minimum hourly rate’ is to reduce the payment to which the
employee will be entitled in the relevant circumstances below that to which they are currently
entitled and such a reduction is not appropriate in the absence of a substantive case.
[562] United Voice also made submissions regarding the development of these provisions
through the Award Modernisation process and contended the Commission clearly intended
that different rates would be used to calculate the 50% loading where a meal break was not
provided, according to the circumstances. For these reasons, United Voice submitted clause
9.4 of the exposure draft should be amended by deleting the words ‘of the minimum hourly
rate’ or in the alternative, these words should be replaced by ‘of the rate applying to the
employee’.
[563] As outlined in its submissions dated 3 February 2017, the Ai Group opposes United
Voice’s position in relation to Item 35. It submits the United Voice claim does not contain
any limitations as to what the applicable rate would be and it would arguably include over-
award payments as well as shift loadings, penalties and other amounts applicable under the
current award. In this regard, it cited the Full Bench decision from early in the Review:
‘[96] Modern awards provide a safety net of minimum entitlements. The modern award
prescribes the minimum rate an employer must pay an employee in given circumstances.
Overaward payments, while permissible, are not mandatory. Further, if an employer chooses to
[2017] FWCFB 5536
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pay an employee more than the minimum amount payable for ordinary hours worked, the
employer is not required to use that higher rate when calculating penalties and loadings.’283
[564] More specifically, they oppose the contention that the 50% loading given to an
employee working through a meal break under clause 29.4 of the Wine Award is calculated
by reference to the rate applicable to the employee at the time the break is not provided.284 Ai
Group contend that United Voice’s claim does not contain any limitations as to what that
applicable rate would be and arguably includes over-award payments as well as shift loadings,
penalties and other amounts applicable under the award. It submits the loading in clause 9.4 of
the exposure draft should not apply to over-award payments but only to minimum rates
prescribed by the award of the NES, disputed the United Voice interpretation of the Award
Modernisation process and contended there is no reason why it should be assumed that a
consistent approach should be adopted within clauses 29.3 and 29.4 of the current award
because they deal with different circumstances. The Ai Group also cited the conditions
prevailing in the Horticulture Award 2010 and submitted the applicable loading should be
applied to the same rate under both awards.
[565] The SAWIA and NFF both oppose the United Voice position, essentially contending
that payment based on the minimum hourly rate is sufficient to meet the modern awards
objective of a ‘fair and relevant safety net of terms and conditions’ of employment.
[566] There are no similar provisions to clauses 29.1 - 29.4 in the current award or 9.1 - 9.4
in the exposure draft in either the Horticulture Award 2010 or the Silviculture Award 2010.
We consider that clause 29.4 of the current award clearly contemplates that employees may
work through their meal break during day work, shift work or overtime and that employees
coming within the operation of clauses 29.1 – 29.3 are required to be paid the applicable day,
shift or overtime rates. As such, we are satisfied that clause 29.4 of the current award requires
the loading of 50% to be applied to the pay rate applying to the worker at the time. The
wording of clause 9.4 of the exposure draft would alter this situation and as such, we will
amend it so that it reads:
9.4 Working through meal break
An employee not given a meal break in accordance with clauses 9.1, 9.2 and 9.3 must be paid
from then on at 150% of the rate of pay applying immediately before the meal break was due
until the meal break is given.
Item 49 – Allowances – boilers and flues
[567] Clause 16.2(d) of the exposure draft provides that an employee engaged in washing
out and chipping boilers or in cleaning flues must be paid 150% of the minimum hourly rate
while they are engaged in such work.
[568] In the 25 August 2016 report, Deputy President Clancy noted that SAWIA, AFEI and
AiGroup support the wording in sub-clause 16.2(d) of the exposure draft, although the
SAWIA also advised that its members consider this sub-clause redundant because they no
longer engage in the work it provides for. The AWU submitted the loading should be applied
to the rate then applying to the employee and while the NUW supported this position, it also
indicated a belief that the work the sub-clause provides for is not very extensive. The NFF
[2017] FWCFB 5536
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does not consider the loading to be a cumulative loading but does not hold a strong view
about the sub-clause. The Ai Group again submitted the Full Bench has held in the Review
that award-derived penalties and loadings should not be applied to over-award payments.285
[569] The corresponding clause in the modern award is clause 24.6(a) which provides that
an employee engaged in the relevant work must be paid 50% extra while engaged in that
work. United Voice contends that the clear legal effect of this clause is that an employee
performing the relevant work is entitled to an additional 50% of the rate then applying to the
employee in the circumstances of the work. Therefore, where the employee is a day worker
working Saturday or Sunday, or a shift worker, or a casual employee, the employee is entitled
to an additional 50% of the rate then applying to the employee. United Voice submits clause
16.2(d) of the exposure draft would reduce the entitlement for workers other than day workers
working within the span of ordinary hours.
[570] We consider that clause 26.4(a) of the current award requires the loading of 50% to be
applied to the pay rate applying to the worker while they are engaged in washing out and
chipping boilers or in cleaning flues. The wording of clause 16.2(d) of the exposure draft
would alter this situation without a substantive case for change having been made. As such,
we will amend clause 16.2(d) of the exposure draft it so that it reads:
(d) Boilers and flues
An employee engaged in washing out and chipping boilers or in cleaning flues must be paid
150% of the hourly rate applying while they are engaged in such work.
Item 53 – Overtime claim
[571] This substantive claim regarding overtime is not agreed and the parties have
previously taken the view that resolution of it depends on the outcomes in the Casual and
Part-time employment Common issue proceedings.
[572] With the finalisation of the casual and part-time employment common issue
proceedings, parties are requested to write to the Commission by 4.00pm Friday, 24
November 2017 to indicate whether they wish to pursue this item. If so, a separately
constituted Full Bench may be allocated the matter.
Item 62 – Public holidays
[573] In respect of item 62, clause 24.3(a)(i) of the exposure draft provides that where a full
time employee's rostered day off falls on a public holiday, then the employee is entitled to 7.6
hours of pay at the minimum hourly rate. For the reasons set out above, the legal effect of this
provision is that the employee is entitled to 7.6 hours of pay at the rate for a day worker
working ordinary hours during the span of ordinary hours. The corresponding clause in the
current award is clause 34.3(a)(i). It provides that in the same circumstances, an employee is
entitled to 7.6 hours of pay at the ordinary time rate. United Voice contends that the phrase
"ordinary time rate" means the ordinary time rate for that employee. That is, where the
employee is a shift worker, the ordinary time rate is the rate inclusive of the shift penalty.
[2017] FWCFB 5536
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[574] The issue relating to this sub-clause has also arisen in the Manufacturing and
Associated Industries and Occupations Award 2010 (Manufacturing Award). The resolution
of it may depend on the outcome in the Manufacturing Award. The parties previously agreed
that further discussions may resolve the issue once the position in the Manufacturing Award
becomes clearer. The Full Bench has now delivered its decision in relation to the
Manufacturing Award286 dealing with this issue and determined in that case, the payment
option should be 7.6 hours of pay at the ordinary hourly rate, as opposed to 7.6 hours of pay at
the applicable rate of pay.287 With the finalisation of the issue in relation to the Manufacturing
Award, parties are requested to write to the Commission by 4.00pm Friday, 24 November
2017 to indicate whether they wish to pursue this item and whether they consider further
discussions may resolve the issue.
Items 71 and Item 72 – overtime for casual employees (table B.2.3)
[575] Table B.2.3 of the exposure draft outlines overtime rates for casual adult employees.
The second report to the Full Bench by Deputy President Clancy indicated that these rates
were agreed by the NUW and the NFF and were not opposed by the Ai Group, AFEI and
Business SA. The Deputy President’s report outlined that responses regarding the rates were
still required from the AWU and the SAWIA. The SAWIA wrote to Vice President Hatcher
on 8 August 2016 confirming that the table in B.2.3 of the exposure draft correctly sets out
overtime rates for casual employees.288 The AWU submit at para 2 of their submission dated
18 January 2017 that they endorse the table. 289
[576] No further action is required in respect of these items.
[577] As noted in the report to the Full Bench of 3 June 2016, items 41, 47, 48, 51, 61, 63,
64, 66, 67, 68, 69 and 76 have been referred to separately constituted Full Benches.
[578] There are no other outstanding items for this Full Bench to determine for the Wine
Industry award.
3. Other matters
Provisional views in previous decision
[579] In the July 2017 decision, we expressed provisional views in relation to a number of
matters including:
Placement of the definitions clause
Hourly rates of pay schedules
Minimum hourly rates and percentages of ordinary hourly rates in the hourly rates of
pay schedules
Occupational health and safety references
[580] A number of submissions were received about these “other matters” following the July
2017 decision. The issues concern the use of consistent expressions, and the sequencing of
clauses, across all modern awards. In our view these matters are more appropriately
[2017] FWCFB 5536
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determined by the Plain Language Full Bench and the President has referred them to that Full
Bench.
References to “allowances”, “rates”, or “loadings” as opposed to “shift penalties”
[581] Ai Group raised concerns about the various ways that penalty rates are referred within
exposure drafts.290 Ai Group’s position is that where an award provides that a shiftworker be
paid 15% extra, that rate can be referred to as a “loading” or an “allowance” but not as a
“penalty rate”. Where an award provides that a shiftworker be paid 115% of the ordinary
hourly rate, this rate may be referred to as a “penalty rate” but not a “loading or an
allowance”. We note that in most exposure drafts we have adopted the second approach
referred to by Ai Group with the majority of the exposure drafts having penalty rates
expressed a percentage of the ordinary or minimum hourly rate for example “115% of the
ordinary hourly rate”.
[582] This issue will also be referred to the Plain Language Full Bench.
Annual leave loading
[583] Ai Group contend that this terminology is particularly problematic in annual leave
clauses that provide that an employee be paid the higher of the annual leave loading or the
“shift loading”.291 Ai Group submits that the way some exposure drafts are worded could be
interpreted as an employee on annual leave is to be paid the higher of 17.5% or a shift loading
of, for example 130%. The Ai Group further submits that this could lead to some shiftworkers
being paid 230% while on annual leave.
[584] We have identified that, of the 112 modern awards that make provision for annual
leave loading, 55 awards contain a reference to an employee being paid the higher of the
annual leave loading or a shift “loading” or an “allowance”. An example of the type of
wording that may cause the issue as raised by the Ai Group is contained in the exposure draft
of the Contract Call Centres Award 2010292 (Call Centres Award):
(b) Provided that where an employee would have received loadings, in accordance with
clause 13—Penalty rates, had the employee not been on leave during the relevant
period and such loadings would have entitled the employee to a greater amount than
the loading of 17.5%, then the employee will be paid such greater amount instead of
the 17.5% loading.
[585] An extract of clause 13 of the exposure draft of the Call Centres Award is as follows:
13.2 Shiftwork penalties
(a) The shift penalties in this clause apply only to time worked on afternoon or night shift
by employees who are designated by the employer as shiftworkers, in respect of the relevant
roster period or shift.
(b) Subject to clause 13.2(a):
(i) employees on an afternoon shift will be paid 115% of the minimum hourly
rate; and
[2017] FWCFB 5536
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(ii) except as provided for in clause 13.2(c), employees on a night shift will be
paid 115% of the minimum hourly rate.
(c) Subject to clause 13.2(a), an employee who:
(i) during a period of engagement on shiftwork, works night shift only;
(ii) remains on night shift for a longer period than four consecutive weeks; or
(iii) works on a night shift which does not rotate or alternate with afternoon shift or
with day work so as to give the employee at least one third of the working
time off night shift in each shift cycle,
will be paid 130% of the minimum hourly rate for time worked on such night shift.
This penalty is in substitution for and not cumulative upon the night shift penalty
prescribed in clause 13.2(b)(ii).
[586] The exposure drafts that we have identified that may have issues with the interaction
between the penalty rates clause and annual leave loading are listed in Attachment B. In our
view, these exposure drafts may be ambiguous because the annual leave loading clause
isolates the loading component of the shiftwork provision and compares it to annual leave
loading. As the redrafted penalty rates clause no longer identifies the loading component of
the shiftwork penalty separately, the annual leave loading clause is not comparing like with
like.
[587] There are also a number of exposure drafts that make provision for employees on
annual leave to be paid at the higher of the annual leave loading or their shift loading but that
are expressed in a manner that does not appear to be problematic. We have included a list of
these exposure drafts at Attachment C.
[588] One example of an exposure draft that contains wording that does not appear to be
problematic is the Ports, Harbours and Enclosed Water Vessels Award 2010293 (Ports
Award):
14.2 Annual leave loading
A loading of 17.5% (20% for shiftworkers) is payable in addition to the payment for
the leave.
[589] The wording in the Ports Award does not appear to be problematic as it identifies the
loading component of the shiftwork provision and compares it to the annual leave loading.
[590] Another example of wording that we say is not problematic is contained in the
exposure draft of the Airline Operations-Ground Staff Award 2010 (Airline Operations
Award):
25.5 Annual leave loading
(a) Each employee before going on leave must be paid:
(i) in the case of day workers—the employee’s ordinary rate of pay for the period
of annual leave plus a holiday loading of 17.5%.
(ii) in the case of shiftworkers—the greater of:
[2017] FWCFB 5536
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the amount which the employee would have received had the employee
worked their actual roster during the period of leave, excluding overtime and
public holiday penalty payments; or
the employee’s ordinary time rate of pay for the ordinary hours the employee
would have worked on the roster plus a loading of 17.5%.
[591] As the issues identified are not confined to the Group 3 awards they will be referred to
the Plain Language Full Bench for determination.
Other references in exposure drafts
[592] We expressed a view in the July 2017 Decision that a consistent approach to the
references to shift penalties is appropriate. We believe, as a general proposition, that where an
award no longer contains separately identified shiftwork loadings, that it is desirable for
penalty rates to be referred to as “penalty rates”, “shiftwork penalties” “shift penalties” or
“shift rates”. There may, however, be instances where it is appropriate in the context of a
particular provision to refer to a separately identified penalty “loading” or “allowance”. As
this issue is not confined to the Group 3 awards it will also be referred to the Plain Language
Full Bench for determination.
4. Next steps
[593] Submissions are to be emailed to amod@fwc.gov.au by the date specified in each
section above.
PRESIDENT
Printed by authority of the Commonwealth Government Printer
Price code J, PR597094
1 [2015] FWCFB 3023
mailto:amod@fwc.gov.au
[2017] FWCFB 5536
100
2 [2016] FWC 4756
3 MA000002
4 [2016] FWCFB 5621 at para [14]
5 [2016] FWCFB 7967
6 Transcript, 15 September 2017
7 MA000085
8 See Statement [2016] FWC 1838 (attaching Amended Directions)
9 MUA, submission – exposure draft, 14 April 2016
10 AWU, submission – exposure draft, 18 April 2016
11 Transcript, 6 June 2016
12 Transcript, 4 August 2016
13 [2016] FWC 7768
14 Transcript, 4 August 2016 at PN16–329
15 AWU submission – exposure draft, 18 April 2016 at para 8
16 Dredging International Contract Dredging (Non-Propelled Dredges, AWU) Enterprise Agreement 2012 (AE898287);
Great Lakes Contract Dredging (Non-Propelled Dredges, AWU) Greenfields Agreement 2013 (AE400157); Van Oord
Australia Contract Dredging (Non- Propelled Dredges) AWU Enterprise Agreement 2011 (AE897529)
17 MA000010
18 MA000026
19 [2017] FWCFB 3135
20 AP778702; AP788027; AP787991
21 AWU submission, 18 April 2016 at para 10
22 MA000045, at clause 16
23 Transcript, 4 August 2016 at PN52–PN93
24 Transcript, 4 August 2016 at PN94–PN134
25 FWO correspondence, 2 March 2015
26 Dredging Award exposure draft, 15 January 2016
27 MUA submission, 9 April 2016, citing AP787991
28 MUA submission – exposure draft, 14 April 2016 at para 5
29 AWU, submission – exposure draft, 18 April 2016 at para 20
30 Fair Work Commission, correspondence, 7 October 2016
31 MUA, submission – aggregate wage calculation, 17 October 2016
32 AWU submission – exposure draft, 18 April 2016 at para 21
33 Research regarding item 13 of submission summary, published 8 November 2016
34 AWU, submission – exposure draft, 18 April 2016 at para 25
35 Transcript, 4 August 2016 at PN163–PN184
36 Listed in Attachment B of [2017] FWCFB 3433
37 AWU, submission – exposure draft, 18 April 2016 at para 27
38 Transcript, 4 August 2016 at PN216–PN228
39 AWU, submission – exposure draft, 18 April 2016 at para 27
40 AWU, submission – exposure draft, 18 April 2016 at para 29
41 MA000078
42 MA000092
43 AWU, Form F46 – application to vary a modern award, 8 March 2012
44 Transcript, 4 August 2016 at PN245 –PN262
45 [2013] FWCFB 6266, at para [108]
https://www.fwc.gov.au/documents/decisionssigned/html/2013fwcfb6266.htm
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/040816-am2014223andors.pdf
https://www.fwc.gov.au/documents/documents/awardmod/review/am2012167.pdf
https://www.fwc.gov.au/documents/documents/modern_awards/award/ma000092/default.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000078/default.htm
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014223-sub-awu-18042016.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014223-sub-awu-18042016.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/040816-am2014223andors.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014223-sub-awu-18042016.pdf
https://www.fwc.gov.au/documents/decisionssigned/html/2017fwcfb3433.htm
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/040816-am2014223andors.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014223-sub-awu-18042016.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014223-dredging-item13-higher-duties-provision.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014223-sub-awu-18042016.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014223-sub-mua-17102016.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014223-corr-fwc-07102016.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014223-sub-awu-18042016.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014223-sub-mua-14042016.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014223-sub-mua-090415.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/exposure-draft-dredging.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014217andors-corr-fwo-020315.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/040816-am2014223andors.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/040816-am2014223andors.pdf
https://www.fwc.gov.au/documents/documents/modern_awards/award/ma000045/default.htm
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014223-sub-awu-18042016.pdf
http://www.fwa.gov.au/consolidated_awards/ap/ap787991/asframe.html
http://www.fwa.gov.au/consolidated_awards/ap/ap788027/asframe.html
http://www.fwa.gov.au/consolidated_awards/ap/ap778702/asframe.html
https://www.fwc.gov.au/documents/decisionssigned/html/2017fwcfb3135.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000026/default.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000010/default.htm
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014223-sub-awu-18042016.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/040816-am2014223andors.pdf
https://www.fwc.gov.au/documents/decisionssigned/html/2016fwc7768.htm
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/040816-am2014223andors.pdf
https://www.fwc.gov.au/documents/documents/transcripts/20160606_am2014220.htm
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014223-sub-awu-18042016.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/AM2014223-sub-MUA-14042016.pdf
https://www.fwc.gov.au/documents/decisionssigned/html/2016fwc1838.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000085/default.htm
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/150917-am201615.htm
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/2016fwcfb7967.pdf
http://www.fwc.gov.au/documents/decisionssigned/html/2016fwcfb5621.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/ma000002/default.htm
http://www.fwc.gov.au/decisionssigned/html/2016fwc4756.htm
[2017] FWCFB 5536
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46 [2013] FWCFB 6266, at para [220]
47 AP778702; AP788027; AP787991
48 AWU submission, 15 February 2013
49 AWU submission, 15 February 2013
50 MA000051
51 MA000122
52 MA000086
53 MUA submission, 14 April 2016 at para 10
54 AWU submission in reply, 5 May 2016 at para 9
55 Transcript, 4 August 2016 at PN263 –PN266
56 AWU, submission – exposure draft, 18 April 2016 at para 22
57 MA000075
58 Transcript, 10 May 2016
59 [2015] FWC 7253
60 NTEU, submission, 8 June 2016
61 NTEU, submission, 8 June 2016
62 Go8, submission, 10 June 2016
63 NTEU, submission, 8 June 2016
64 Go8, submission, 10 June 2016
65 [2017] FWCFB 3433
66 [2017] FWCFB 3433 at PN57 and PN62
67 NTEU, submission, 28 July 2017
68 MA000076
69 [2015] FWC 7253
70 PR575283
71 Transcript, 7 June 2016 at PN137-139
72 Transcript, 7 June 2016 at PN137-139
73 AIS and IEU, submission, 14 April 2016 at para 6
74 AFEI, submission in reply, 9 May 2016 at para 28
75 Transcript, 7 June 2016 at PN81 – PN88
76 AIS and IEU, submission, 14 April 2017 at para 9
77 AFEI, submission in reply, 9 May 2016 at para 29
78 ABI and NSWBC, submission, 15 April 2016 at para 15.2
79 AIS and IEU, reply submission, 5 May 2016 at para 13
80 AFEI, submission in reply, 6 May 2016 at para 30
81 AFEI, submission – exposure draft, 15 April 2016 at para 14
82 AFEI, submission – exposure draft, 15 April 2016 at para 15
83 AFEI, submission, 15 April 2016 at paras 14-16
84 AIS and IEU, submission in reply 5 May 2016 at para 4
85 MA000094
86 ASSA, submission, 4 August 2016 at pp. 1-2; ASSA, submission, 20 January 2017 at para 8.2.4
87 GA, submission, 10 January 2017 at para 5
88 ASSA, submission, 20 January 2017 at para 4
89 ASSA, submission, 20 January 2017 at para 8.2.4
90 ASSA, submission, 20 January 2017 at para 8.2.4
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014227-sub-assa--200117.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014227-sub-assa--200117.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014227-sub-assa--200117.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014227-245-sub-ga-100117.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014227-sub-assa--200117.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014227-sub-assa-040816.pdf
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000094/default.htm
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014221andors-sub-afei-150416.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014221andors-sub-afei-150416.pdf
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/20160607-am2014224andors.pdf
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/20160607-am2014224andors.pdf
http://www.fwc.gov.au/documents/awardsandorders/html/pr575283.htm
https://www.fwc.gov.au/documents/documents/awardmod/decs/2015fwc7253.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000076/default.htm
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014229-sub-nteu-280717.pdf
https://www.fwc.gov.au/documents/decisionssigned/html/2017fwcfb3433.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2017fwcfb3433.htm
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014229-230-sub-g8u-100616.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014224andors-corr-nteu-080616.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014229-230-sub-g8u-100616.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014224andors-corr-nteu-080616.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014224andors-corr-nteu-080616.pdf
https://www.fwc.gov.au/documents/documents/awardmod/decs/2015fwc7253.htm
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/20160510_am2014229.pdf
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000075/default.htm
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014223-sub-awu-18042016.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/040816-am2014223andors.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014223-sub-awu-050516.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014223-sub-mua-14042016.pdf
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000086/default.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/ma000122/default.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/ma000051/default.htm
https://www.fwc.gov.au/documents/documents/awardmod/review/am2012151&ors_sub_awu.pdf
https://www.fwc.gov.au/documents/documents/awardmod/review/am2012151&ors_sub_awu.pdf
http://www.fwa.gov.au/consolidated_awards/ap/ap787991/asframe.html
http://www.fwa.gov.au/consolidated_awards/ap/ap788027/asframe.html
http://www.fwa.gov.au/consolidated_awards/ap/ap778702/asframe.html
https://www.fwc.gov.au/documents/decisionssigned/html/2013fwcfb6266.htm
[2017] FWCFB 5536
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91 P1748 V001 M Print T3721, 24 Nov 2000, at p.2
92 ASSA, submission, 22 December 2016 at p.2 and p.6
93 ASSA, submission, 22 December 2016 at p.5
94 ASSA, submission, 7 March 2016 at pp.1-2
95 BusSA reply submission, 6 May 2016 at para 6.1; ABI&NSWBC reply submission, 6 May 2016 at para 8.5; FA
submission, 26 May 2016 at para 2.10
96 ASSA, submission, 4 August 2016 at p.2
97 ASSA, submission, 4 August 2016 at p.2
98 AM2016/15 – Plain language re-drafting
99 [2017] FWCFB 5258
100 [2017] FWCFB 5367
101 ASSA, submission, 22 December 2016 at p.6
102 MA000101
103 [2017] FWCFB 3433, at Attachment B
104 AWU correspondence, 9 August 2016
105 MA000028
106 [2013] FWC 9543 at [66]
107 Business SA, submission in reply, 6 May 2016 at 8.3
108 VOH, submission in reply – exposure drafts, 5 May 2016 at pp 2–3
109 Ai Group, submission – exposure drafts at para 319; also see Transcript, 8 August 2016 at PN560–570
110 [2015] FWCFB 4658
111 Transcript, 8 August 2016 at PN558
112 Transcript, 8 August 2016 at PN576
113 Transcript, 8 August 2016 at PN574
114 Transcript, 8 August 2016 at PN574
115 [2015] FWCFB 4658
116 Transcript, 8 August 2016 at PN572
117 Transcript, 8 August 2016 at PN572
118 [2015] FWCFB 4658 at paras 42–43
119 Ai Group, submission – exposure drafts, at para 320–321
120 Business SA, submission in reply – exposure drafts at 8.3
121 VOH, submission in reply – exposure draft at p 3
122 Transcript, 8 August 2016 at PN577–581
123 [2015] FWCFB 4658 at paras 69–70
124 [2015] FWCFB 6656 at paras 107–110
125 Ai Group, submission – exposure drafts, 14 April 2016 at paras 327–328
126 Transcript, 8 August 2016 at PN614
127 Transcript, 8 August 2016 at PN618–620
128 [2008] AIRCFB 1000
129 Ai Group, submission – general issues arising from exposure drafts, 31 August 2016 at para 5
130 FWO, correspondence, 2 March 2015 at item 19
131 Transcript, 8 August 2016 at PN583–587
132 Transcript, 8 August 2016 at PN589
133 Transcript, 8 August 2016 at PN591
134 NFF, further submission – exposure draft, 15 August 2016
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/20160808-am2014244andors.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/20160808-am2014244andors.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/20160808-am2014244andors.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014217andors-corr-fwo-020315.pdf
http://www.airc.gov.au/awardmod/databases/general/decisions/2008aircfb1000.htm
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/20160808-am2014244andors.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/20160808-am2014244andors.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014217andors-sub-aig-140416.pdf
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/sites/awardsmodernfouryr/20160808-am2014244andors.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014231-replysub-voh-050516.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014217andors-reply-sub-busa-060516.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014217andors-sub-aig-140416.pdf
https://www.fwc.gov.au/documents/decisionssigned/html/2015fwcfb4658.htm
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/20160808-am2014244andors.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/20160808-am2014244andors.pdf
https://www.fwc.gov.au/documents/decisionssigned/html/2015fwcfb4658.htm
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/20160808-am2014244andors.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/20160808-am2014244andors.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/20160808-am2014244andors.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/20160808-am2014244andors.pdf
https://www.fwc.gov.au/documents/decisionssigned/html/2015fwcfb4658.htm
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/20160808-am2014244andors.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014217andors-sub-aig-140416.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014231-replysub-voh-050516.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014217andors-reply-sub-busa-060516.pdf
https://www.fwc.gov.au/documents/decisionssigned/html/2013fwc9543.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000028/default.htm
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014228-corr-awu-090816.pdf
https://www.fwc.gov.au/documents/decisionssigned/html/2017fwcfb3433.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000101/default.htm
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014227-sub-assa-221216.pdf
https://www.fwc.gov.au/documents/decisionssigned/html/2017fwcfb5367.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2017fwcfb5258.htm
https://www.fwc.gov.au/awards-agreements/awards/modern-award-reviews/4-yearly-review/common-issues/am201615-plain-language
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014227-sub-assa-040816.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014227-sub-assa-040816.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014227-sub-fa-260516.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014217andors-reply-sub-abi-060516.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014217andors-reply-sub-busa-060516.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014227-sub-aa-070315.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014227-sub-assa-221216.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014227-sub-assa-221216.pdf
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135 See discussion in Transcript, 8 August 2016 at PN 673–681
136 Transcript, 8 August 2016 at PN624
137 Ai Group, submission – exposure draft, 14 April 2016 at para 329
138 AWU, submission – exposure draft, 17 April 2016 at para 9
139 Transcript, 8 August 2016 at PN622–626
140 AWU, submission – exposure draft, 17 April 2016 at para 10
141 Business SA, submission in reply – exposure draft, 6 May 2016 at 8.11
142 NFF, submission in reply – exposure draft, 5 May 2016 at 21
143 Ai Group, submission in reply – exposure drafts, 8 May 2016 at para 165
144 Ai Group, submission in reply – exposure drafts, 8 May 2016 at paras 166–168
145 NFF, submission – pieceworkers, 5 August 2016
146 NFF, submission – pieceworkers, 5 August 2016
147 Transcript, 8 August 2016 at PN 638
148 Ai Group, correspondence – outstanding issues, 24 August 2016
149 Ai Group, correspondence – outstanding issues, 24 August 2016
150 Transcript, 8 August 2016 at PN 640–646
151 ASU, submission, 20 December 2016
152 Clerks – Private Sector Award 2010 - clause 26.2(a)
153 Law firms submission, 29 August 2016
154 MA000033
155 [2017] FWCFB 3541
156 Ai Group submission, 31 August 2016 at paras 5 & 6
157 Potential inconsistencies between the General Employment Conditions and streams, 6 October 2016
158 AWU, submission in reply - exposure draft, 23 November 2016, at paras 71–72
159 [2017] FWCFB 3433 at [141] – [147]
160 Notice of Listing – issued 14 July 2017
161 Statement [2017] FWC 3883 at [4]
162 Ibid
163 AWU submission – exposure draft, 17 April 2016 at 13
164 [2017] FWCFB 3433 at [178]
165 NFF submission – first aid allowance, 4 August 2017
166 SCAA submission – group 3 decision – first aid allowance, 4 August 2017 at 1(i)
167 Ibid at 1(ii)
168 Business SA submission – group 3 decision – all purpose allowances – occupational health and safety – Pastoral Award, 4
August 2017 at 2.2-2.3
169 ABI and NSWBC – submission – group 3 decision – revised exposure draft – first aid and meal allowances, 15 August
2017 at 6
170 Ibid at 7
171 Ibid at 9
172 NFF submission – outstanding claims, 26 October 2016 at para 40
173 NFF submission – outstanding claims, 26 October 2016 at para 42
174 [2017] FWCFB 3433 at [206]-[207
175 AWU submission in reply – exposure draft, 23 November 2016 at para 12
176 [2017] FWCFB 3433 at [210]
177 NFF and AWU joint paper – exposure draft – rates schedules, 31 July 2017
178 NFF and AWU joint paper – exposure draft – rates schedules, 31 July 2017 page 2
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014239-paper-awu-nff-310717.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014239-paper-awu-nff-310717.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014239-rep-sub-amwu-231116.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014239-sub-abiandnswbc-140817.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201475andors-sub-bussa-040817.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014239-sub-scaa-40817.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014239-sub-nff-40817.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014239-sub-awu-170416.pdf
https://www.fwc.gov.au/documents/decisionssigned/html/2017fwc3883.htm
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/nol-240717-239.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014239-rep-sub-amwu-231116.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014239-fwc-inconsistencies-071016.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/allawards-sub-aig-310816.pdf
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000033/default.htm
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014233-sub-kennedyandors-290816.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014233-sub-asu-201216.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/20160808-am2014244andors.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014231-sub-aig-240816.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014231-sub-aig-240816.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/20160808-am2014244andors.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014231-sub-nnf-050816.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014231-sub-nnf-050816.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014217andors-reply-sub-aig-080516.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014217andors-reply-sub-aig-080516.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014231-sub-nff-050516.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014217andors-reply-sub-busa-060516.pdf
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/AM2014231-sub-AWU-170416.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/20160808-am2014244andors.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014217andors-sub-aig-140416.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/20160808-am2014244andors.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/20160808-am2014244andors.pdf
[2017] FWCFB 5536
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179 AWU submission – exposure draft, 17 April 2016 at 48
180 [2017] FWCFB 3433 at [277]
181 AWU submission, 26 July 2017
182 [2017] FWCFB 3433
183 AWU, submission in reply - exposure draft, 23 November 2016, at paras 66–68
184 AWU, submission in reply - exposure draft, 23 November 2016, at paras 75–79
185 AWU, submission in reply - exposure draft, 23 November 2016, at para 24
186 AWU, submission - exposure draft, 17 April 2016, at para 28
187 AWU, submission in reply - exposure draft, 23 November 2016, at para 26
188 AWU, submission - exposure draft, 17 April 2016, at para 29
189 NFF, submission - outstanding claims, 26 October 2016, at para 44; and AWU, submission in reply - exposure draft,
23 November 2016, at para 23
190 NFF, submission - outstanding claims, 26 October 2016, at para 44
191 NFF, submission - outstanding claims, 26 October 2016, at para 45
192 AWU, submission - exposure draft, 17 April 2016, at para 31; and AWU, submission in reply - exposure draft, 23
November 2016, at para 27
193 AWU, submission - exposure draft, 17 April 2016, at para 31
194 AWU, submission - exposure draft, 17 April 2016, at para 30
195 AWU, submission - exposure draft, 17 April 2016, at para 30
196 AWU, submission - exposure draft, 17 April 2016, at para 31
197 ABI, submission in reply - exposure drafts, 6 May 2016, at para 19.5
198 AWU, submission - exposure draft, 17 April 2016, at paras 50 and 52
199 AWU, submission - exposure draft, 17 April 2016, at paras 50 and 52
200 MA000040
201 NFF submission, 9 June 2016, para 13
202 Transcript, 8 August 2016, PN39
203 Transcript, 8 August 2016, PN40
204 AWU submission, 18 January 2017, at para 3.3
205 NFF submission, 9 June 2017, at para 22
206
AN170096. Part V, cl 2
207 AWU submission, 17 April 2016, at para 11
208 NFF submission, 9 June 2016, at para 23
209 Transcript, 8 August 2016, PN114-PN117
210 NFF submission, 7 February 2017, at para 19
211 NFF submission, 9 June 2016, at para 24
212 AWU submission, 17 April 2016, at para 14
213 NFF submission, 20 January 2017, para 12
214 AWU submission, 9 February 2017, para 3
215 NFF submission, 9 June 2016, para 35
216 AN170096, Part IV, clause 1(f)
217 NFF submission, 20 January 2017 , at para 22
218 AWU submission, 17 April 2016, at para 18
219 AN170096, Part III clause 6(c)
220 AN170096, Part VII clause 1
221 [2008] AIRCFB 717 at para [19]
222 AWU submission, 17 April 2016, at para 22
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014244-sub-awu-170416.pdf
http://www.airc.gov.au/awardmod/databases/general/decisions/2008aircfb717.htm
https://www.fwc.gov.au/documents/consolidated_awards/an/an170096/asframe.html
https://www.fwc.gov.au/documents/consolidated_awards/an/an170096/asframe.html
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014244-sub-awu-170416.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014244-sub-nff-200117.pdf
https://www.fwc.gov.au/documents/consolidated_awards/an/an170096/asframe.html
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014244-sub-nff-090616.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014244-sub-awu-090217.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014244-sub-nff-200117.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014244-sub-awu-170416.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014244-sub-nff-090616.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014244-replysub-nff-070217.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/20160808-am2014244andors.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014244-sub-nff-090616.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014244-sub-awu-170416.pdf
https://www.fwc.gov.au/documents/consolidated_awards/an/an170096/asframe.html
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014244-sub-nff-090616.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014244-sub-awu-180117.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/20160808-am2014244andors.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/20160808-am2014244andors.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014244-sub-nff-090616.pdf
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000040/default.htm
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014239-sub-awu-170416.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014239-sub-awu-170416.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014217andors-reply-sub-abi-060516.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014239-sub-awu-170416.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014239-sub-awu-170416.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014239-sub-awu-170416.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014239-sub-awu-170416.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014239-rep-sub-amwu-231116.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014239-sub-awu-170416.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014239-rep-sub-nff-261016.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014239-rep-sub-nff-261016.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014239-rep-sub-amwu-231116.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014239-rep-sub-nff-261016.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014239-sub-awu-170416.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014239-rep-sub-amwu-231116.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014239-sub-awu-170416.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014239-rep-sub-amwu-231116.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014239-rep-sub-amwu-231116.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014239-rep-sub-amwu-231116.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014239-sub-awu-260717.pdf
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223 NFF submission, 20 January 2017 , at paras 43 - 45
224 NFF submission, 7 February 2017, at para 31
225 NFF submission, 7 February 2017, at para 31
226 AN170096, Part V clause 6(h)
227 NFF submission, 7 February 2017, at para 33
228 [2008] AIRCFB 1000, at para [95]
229 AWU submission, 17 April 2016, at para 26
230 AWU submission, 9 February 2017, para 4, subpara 1.3
231 AN170096, Part V clause 7
232 T8584
233 [2017] FWCFB 3433, at para [351]
234 [2017] FWCFB 3433, at para [339]
235 MA000082
236 Report to Full Bench, 3 June 2016
237 NFF submission, 14 April 2016, para 18
238 [2014] FWCFB 9412 at [29]
239 Report to Full Bench, 3 June 2016 at Annexure C
240 NFF Submission, 14 April 2016 at para 26
241 AMWU submission in reply, 5 May 2016 at page 3
242 Ai Group submission in reply, 5 May 2016 at paras 284–285
243 AWU submission, 21 July 2016 at paras 24–25
244 NFF submission, 14 April 2016 at paras 27–28
245 [2014] FWCFB 9412 at [37]–[43]
246 NFF submission, 14 April 2016 at paras 36–38
247 Report to Full Bench, 3 June 2016 at Annexure B
248 VOCEDplus, accessed 11 January 2017
249 Scseec, accessed 11 January 2017
250 FWO correspondence, 2 March 2015, item 36
251 AWU submissions, 21 July 2016 para 12
252 AWU submissions, 21 July 2016 para 11-13
253 AWU submission, 17 April 2016 at para 33
254 AWU submission, 21 July 2016 at para 3
255 AWU submission, 21 July 2016 at para 7
256 ASMC submission, 5 August 2016
257 NFF submission, 8 July 2016
258 NFF submission, 8 July 2016
259 AWU submissions, 21 July 2016, para 18–21
260 Report to Full Bench, 3 June 2016 at Annexure C
261 Report to Full Bench, 3 June 2016 at Annexure C
262 Ai Group submission, 14 April 2016, para 438
263 NFF Submissions, 14 April 2016, para 44-45
264 AWU submissions in reply, 6 May 2016, paras 24-25
265 AWU submissions, 21 July 2016, paras 26-29
266 AWU submissions, 21 July 2016, para 30
267 AWU submissions, 21 July 2016, para 31
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014247-sub-awu-210716.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014247-sub-awu-210716.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014247-sub-awu-210716.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014247-sub-awu-050516.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014247-sub-nff-140416.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014217andors-sub-aig-140416.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/report-030616.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/report-030616.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014247-sub-awu-210716.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014247-sub-nff-080716.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014247-sub-nff-080716.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014247-sub-asmc-050816.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014247-sub-awu-210716.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014247-sub-awu-210716.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014247-sub-awu-170416.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014247-sub-awu-210716.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014247-sub-awu-210716.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014217andors-corr-fwo-020315.pdf
http://www.scseec.edu.au/
http://www.voced.edu.au/content/glossary-term-standing-council-tertiary-education-skills-and-employment
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/report-030616.pdf
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014247-sub-nff-140416.pdf
https://www.fwc.gov.au/documents/decisionssigned/html/2014FWCFB9412.htm#P122_2360
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014247-sub-nff-140416.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014247-sub-awu-210716.pdf
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014217andors-reply-sub-aig-080516.pdf
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014247-sub-amwu-050516.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014247-sub-nff-140416.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/report-030616.pdf
https://www.fwc.gov.au/documents/decisionssigned/html/2014fwcfb9412.htm
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014247-sub-nff-140416.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/report-030616.pdf
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000082/default.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2017fwcfb3433.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2017fwcfb3433.htm
http://www.tic.tas.gov.au/decisions_issued/1999/t8584
https://www.fwc.gov.au/documents/consolidated_awards/an/an170096/asframe.html
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014244-sub-awu-090217.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014244-sub-awu-170416.pdf
http://www.airc.gov.au/awardmod/databases/general/decisions/2008aircfb1000.htm
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014244-replysub-nff-070217.pdf
https://www.fwc.gov.au/documents/consolidated_awards/an/an170096/asframe.html
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014244-replysub-nff-070217.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014244-replysub-nff-070217.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014244-sub-nff-200117.pdf
[2017] FWCFB 5536
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268 ASMC submission, 5 August 2016
269 AWU submissions, 21 July 2016, para 32
270 Ai Group submission, 31 August 2016 at para 9
271 Ai Group submission, 31 August 2016 at para 42
272 AWU submission, 17 April 2016, para 36
273 Report to Full Bench, 3 June 2016 at Annexure C
274 [2009] AIRCFB 100 and [2009] AIRCFB 826
275 FWO submission, 2 March 2015 at page 11
276 AMWU submissions, 2 March 2015 at para 3
277 [2013] FWCFB 9295 at [14]–[16]
278 [2013] FWCFB 9295 at [17]
279 AMWU submission, 22 July 2016 at para 5
280 MA000090
281 Items 41, 47, 48, 51, 61, 63, 64, 66, 67, 68, 69 and 76 have been referred to separately constituted Full Benches of the
Commission
282 [2017] FWCFB 4174
283 [2015] FWCFB 4658 at [96]
284 Ai Group submission, 3 February 2017, at para 4
285 Ai Group submission, 3 February 2017 at para 38
286 [2017] FWCFB 3177
287 Ibid at [76]-[78]
288 SAWIA submission, 5 August 2016
289 AWU submission, 18 January 2017
290 Ai Group submission, 31 August 2016
291 Ai Group submission, 31 August 2016, para 10
292 MA000023
293 MA000052
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000052/default.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000023/default.htm
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/allawards-sub-aig-310816.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/allawards-sub-aig-310816.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014249-sub-awu-180117.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014196-197-sub-sawia-050816.pdf
https://www.fwc.gov.au/documents/decisionssigned/html/2017fwcfb3177.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2015fwcfb4658.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2017fwcfb4174.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000090/default.htm
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014247-sub-amwu-220716.pdf
https://www.fwc.gov.au/documents/decisionssigned/html/2013fwcfb9295.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2013fwcfb9295.htm
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/AM2014230andors-sub-AMWU-020315.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014217andors-corr-fwo-020315.pdf
http://www.airc.gov.au/awardmod/databases/sugar/Decisions/2009aircfb826.htm
http://www.airc.gov.au/awardmod/databases/sugar/Decisions/2009aircfb100.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/report-030616.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014247-sub-awu-170416.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/allawards-sub-aig-310816.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/allawards-sub-aig-310816.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014247-sub-awu-210716.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014247-sub-asmc-050816.pdf
107
ATTACHMENT A—List of Group 3 awards by subgroup
Award code Award title Matter No.
Sub-group 3A
MA000019 Banking, Finance and Insurance Award 2010 AM2014/217
MA000021 Business Equipment Award 2010 AM2014/218
MA000002 Clerks Private Sector Award 2010 AM2014/219
MA000083 Commercial Sales Award 2010 AM2014/221
MA000023 Contract Call Centres Award 2010 AM2014/222
MA000094 Fitness Industry Award 2010 AM2014/227
MA000099 Labour Market Assistance Industry Award 2010 AM2014/232
MA000116 Legal Services Award 2010 AM2014/233
MA000030 Market and Social Research Award 2010 AM2014/236
MA000104 Miscellaneous Award 2010 AM2014/237
MA000106 Real Estate Industry 2010 AM2014/242
MA000082 Sporting Organisations Award 2010 AM2014/245
MA000041 Telecommunications Services Award 2010 AM2014/248
Sub-group 3B
MA000075 Educational Services (Post-Secondary Education) Award 2010 AM2014/224
MA000076 Educational Services (Schools) General Staff Award 2010 AM2014/225
MA000006 Higher Education—Academic Staff Award 2010 AM2014/229
MA000007 Higher Education—General Staff Award 2010 AM2014/230
MA000112 Local Government Industry Award 2010 AM2014/234
MA000121 State Government Agencies Administration Award 2010 AM2014/246
Sub-group 3C
MA000045 Coal Export Terminals Award 2010 AM2014/220
MA000085 Dredging Industry Award 2010 AM2014/223
MA000088 Electrical Power Industry Award 2010 AM2014/226
MA000050 Marine Towage Award 2010 AM2014/235
MA000051 Port Authorities Award 2010 AM2014/240
MA000052 Ports, Harbours and Enclosed Water Vessels Award 2010 AM2014/241
MA000122 Seagoing Industry Award 2010 AM2014/243
https://www.fwc.gov.au/awards-and-agreements/modern-award-reviews/4-yearly-review/award-stage/award-review-documents/MA000122?m=AM2014/243
http://www.fwc.gov.au/documents/modern_awards/award/ma000122/default.htm
https://www.fwc.gov.au/awards-and-agreements/modern-award-reviews/4-yearly-review/award-stage/award-review-documents/MA000052?m=AM2014/241
http://www.fwc.gov.au/documents/modern_awards/award/ma000052/default.htm
https://www.fwc.gov.au/awards-and-agreements/modern-award-reviews/4-yearly-review/award-stage/award-review-documents/MA000051?m=AM2014/240
http://www.fwc.gov.au/documents/modern_awards/award/ma000051/default.htm
https://www.fwc.gov.au/awards-and-agreements/modern-award-reviews/4-yearly-review/award-stage/award-review-documents/MA000050?m=AM2014/235
http://www.fwc.gov.au/documents/modern_awards/award/ma000050/default.htm
https://www.fwc.gov.au/awards-and-agreements/modern-award-reviews/4-yearly-review/award-stage/award-review-documents/MA000088?m=AM2014/226
http://www.fwc.gov.au/documents/modern_awards/award/ma000088/default.htm
https://www.fwc.gov.au/awards-and-agreements/modern-award-reviews/4-yearly-review/award-stage/award-review-documents/MA000085?m=AM2014/223
http://www.fwc.gov.au/documents/modern_awards/award/ma000085/default.htm
https://www.fwc.gov.au/awards-and-agreements/modern-award-reviews/4-yearly-review/award-stage/award-review-documents/MA000045?m=AM2014/220
http://www.fwc.gov.au/documents/modern_awards/award/ma000045/default.htm
https://www.fwc.gov.au/awards-and-agreements/modern-award-reviews/4-yearly-review/award-stage/award-review-documents/MA000121?m=AM2014/246
http://www.fwc.gov.au/documents/modern_awards/award/ma000121/default.htm
https://www.fwc.gov.au/awards-and-agreements/modern-award-reviews/4-yearly-review/award-stage/award-review-documents/MA000112?m=AM2014/234
http://www.fwc.gov.au/documents/modern_awards/award/ma000112/default.htm
https://www.fwc.gov.au/awards-and-agreements/modern-award-reviews/4-yearly-review/award-stage/award-review-documents/MA000007?m=AM2014/230
http://www.fwc.gov.au/documents/modern_awards/award/ma000007/default.htm
https://www.fwc.gov.au/awards-and-agreements/modern-award-reviews/4-yearly-review/award-stage/award-review-documents/MA000006?m=AM2014/229
http://www.fwc.gov.au/documents/modern_awards/award/ma000006/default.htm
https://www.fwc.gov.au/awards-and-agreements/modern-award-reviews/4-yearly-review/award-stage/award-review-documents/MA000076?m=AM2014/225
http://www.fwc.gov.au/documents/modern_awards/award/ma000076/default.htm
https://www.fwc.gov.au/awards-and-agreements/modern-award-reviews/4-yearly-review/award-stage/award-review-documents/MA000075?m=AM2014/224
http://www.fwc.gov.au/documents/modern_awards/award/ma000075/default.htm
https://www.fwc.gov.au/awards-and-agreements/modern-award-reviews/4-yearly-review/award-stage/award-review-documents/MA000041?m=AM2014/248
http://www.fwc.gov.au/documents/modern_awards/award/ma000041/default.htm
https://www.fwc.gov.au/awards-and-agreements/modern-award-reviews/4-yearly-review/award-stage/award-review-documents/MA000082?m=AM2014/245
http://www.fwc.gov.au/documents/modern_awards/award/ma000082/default.htm
https://www.fwc.gov.au/awards-and-agreements/modern-award-reviews/4-yearly-review/award-stage/award-review-documents/MA000106?m=AM2014/242
http://www.fwc.gov.au/documents/modern_awards/award/ma000106/default.htm
https://www.fwc.gov.au/awards-and-agreements/modern-award-reviews/4-yearly-review/award-stage/award-review-documents/MA000104?m=AM2014/237
http://www.fwc.gov.au/documents/modern_awards/award/ma000104/default.htm
https://www.fwc.gov.au/awards-and-agreements/modern-award-reviews/4-yearly-review/award-stage/award-review-documents/MA000030?m=AM2014/236
http://www.fwc.gov.au/documents/modern_awards/award/ma000030/default.htm
https://www.fwc.gov.au/awards-and-agreements/modern-award-reviews/4-yearly-review/award-stage/award-review-documents/MA000116?m=AM2014/233
http://www.fwc.gov.au/documents/modern_awards/award/ma000116/default.htm
https://www.fwc.gov.au/awards-and-agreements/modern-award-reviews/4-yearly-review/award-stage/award-review-documents/MA000099?m=AM2014/232
http://www.fwc.gov.au/documents/modern_awards/award/ma000099/default.htm
https://www.fwc.gov.au/awards-and-agreements/modern-award-reviews/4-yearly-review/award-stage/award-review-documents/MA000094?m=AM2014/227
http://www.fwc.gov.au/documents/modern_awards/award/ma000094/default.htm
https://www.fwc.gov.au/awards-and-agreements/modern-award-reviews/4-yearly-review/award-stage/award-review-documents/MA000023?m=AM2014/222
http://www.fwc.gov.au/documents/modern_awards/award/ma000023/default.htm
https://www.fwc.gov.au/awards-and-agreements/modern-award-reviews/4-yearly-review/award-stage/award-review-documents/MA000083?m=AM2014/221
http://www.fwc.gov.au/documents/modern_awards/award/ma000083/default.htm
https://www.fwc.gov.au/awards-and-agreements/modern-award-reviews/4-yearly-review/award-stage/award-review-documents/MA000002?m=AM2014/219
http://www.fwc.gov.au/documents/modern_awards/award/ma000002/default.htm
https://www.fwc.gov.au/awards-and-agreements/modern-award-reviews/4-yearly-review/award-stage/award-review-documents/MA000021?m=AM2014/218
http://www.fwc.gov.au/documents/modern_awards/award/ma000021/default.htm
https://www.fwc.gov.au/awards-and-agreements/modern-award-reviews/4-yearly-review/award-stage/award-review-documents/MA000019?m=AM2014/217
http://www.fwc.gov.au/documents/modern_awards/award/ma000019/default.htm
[2017] FWCFB 5536
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Award code Award title Matter No.
Sub-group 3D
MA000101 Gardening and Landscaping Services Award 2010 AM2014/228
MA000028 Horticulture Award 2010 AM2014/231
MA000033 Nursery Award 2010 AM2014/238
MA000035 Pastoral Award 2010 AM2014/239
MA000040 Silviculture Award 2010 AM2014/244
MA000087 Sugar Industry Award 2010 AM2014/247
MA000090 Wine Industry Award 2010 AM2014/249
https://www.fwc.gov.au/awards-and-agreements/modern-award-reviews/4-yearly-review/award-stage/award-review-documents/MA000090?m=AM2014/249
http://www.fwc.gov.au/documents/modern_awards/award/ma000090/default.htm
https://www.fwc.gov.au/awards-and-agreements/modern-award-reviews/4-yearly-review/award-stage/award-review-documents/MA000087?m=AM2014/247
http://www.fwc.gov.au/documents/modern_awards/award/ma000087/default.htm
https://www.fwc.gov.au/awards-and-agreements/modern-award-reviews/4-yearly-review/award-stage/award-review-documents/MA000040?m=AM2014/244
http://www.fwc.gov.au/documents/modern_awards/award/ma000040/default.htm
https://www.fwc.gov.au/awards-and-agreements/modern-award-reviews/4-yearly-review/award-stage/award-review-documents/MA000035?m=AM2014/239
http://www.fwc.gov.au/documents/modern_awards/award/ma000035/default.htm
https://www.fwc.gov.au/awards-and-agreements/modern-award-reviews/4-yearly-review/award-stage/award-review-documents/MA000033?m=AM2014/238
http://www.fwc.gov.au/documents/modern_awards/award/ma000033/default.htm
https://www.fwc.gov.au/awards-and-agreements/modern-award-reviews/4-yearly-review/award-stage/award-review-documents/MA000028?m=AM2014/231
http://www.fwc.gov.au/documents/modern_awards/award/ma000028/default.htm
https://www.fwc.gov.au/awards-and-agreements/modern-award-reviews/4-yearly-review/award-stage/award-review-documents/MA000101?m=AM2014/228
http://www.fwc.gov.au/documents/modern_awards/award/ma000101/default.htm
[2017] FWCFB 5536
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ATTACHMENT B
Awards that have been identified that may have an issue with the interaction between the
annual leave loading and the penalty rates provisions in the exposure draft
Aboriginal Community Controlled Health Services Award 2010
Aged Care Award 2010
Airport Employees Award 2010
Animal Care and Veterinary Services Award 2010
Asphalt Industry Award 2010
Banking, Finance and Insurance Award 2010
Black Coal Mining Industry Award 2010
Building and Construction General On-site Award 2010
Business Equipment Award 2010
Car Parking Award 2010
Cement and Lime Award 2010
Cleaning Services Award 2010
Clerks - Private Sector Award 2010
Coal Export Terminals Award 2010
Concrete Products Award 2010
Contract Call Centres Award 2010
Dry Cleaning and Laundry Industry Award 2010
Educational Services (Post-Secondary Education) Award 2010
Educational Services (Schools) General Staff Award 2010
Educational Services (Teachers) Award 2010
Electrical Power Industry Award 2010
Electrical, Electronic and Communications Contracting Award 2010
Fast Food Industry Award 2010
Food, Beverage and Tobacco Manufacturing Award 2010
Gas Industry Award 2010
General Retail Industry Award 2010
Graphic Arts, Printing and Publishing Award 2010
Hair and Beauty Industry Award 2010
Health Professionals and Support Services Award 2010
Higher Education Industry-General Staff-Award 2010
Joinery and Building Trades Award 2010
Legal Services Award 2010
Manufacturing and Associated Industries and Occupations Award 2010
Meat Industry Award 2010
Medical Practitioners Award 2010
Miscellaneous Award 2010
Mobile Crane Hiring Award 2010
Nurses Award 2010
Pastoral Award 2010
https://www.fwc.gov.au/documents/modern_awards/award/MA000035/default.htm
https://www.fwc.gov.au/documents/modern_awards/award/MA000034/default.htm
https://www.fwc.gov.au/documents/modern_awards/award/MA000032/default.htm
https://www.fwc.gov.au/documents/modern_awards/award/MA000104/default.htm
https://www.fwc.gov.au/documents/modern_awards/award/MA000031/default.htm
https://www.fwc.gov.au/documents/modern_awards/award/MA000059/default.htm
https://www.fwc.gov.au/documents/modern_awards/award/MA000010/default.htm
https://www.fwc.gov.au/documents/modern_awards/award/MA000116/default.htm
https://www.fwc.gov.au/documents/modern_awards/award/MA000029/default.htm
https://www.fwc.gov.au/documents/modern_awards/award/MA000007/default.htm
https://www.fwc.gov.au/documents/modern_awards/award/MA000027/default.htm
https://www.fwc.gov.au/documents/modern_awards/award/MA000005/default.htm
https://www.fwc.gov.au/documents/modern_awards/award/MA000026/default.htm
https://www.fwc.gov.au/documents/modern_awards/award/MA000004/default.htm
https://www.fwc.gov.au/documents/modern_awards/award/MA000061/default.htm
https://www.fwc.gov.au/documents/modern_awards/award/MA000073/default.htm
https://www.fwc.gov.au/documents/modern_awards/award/MA000025/default.htm
https://www.fwc.gov.au/documents/modern_awards/award/MA000088/default.htm
https://www.fwc.gov.au/documents/modern_awards/award/MA000077/default.htm
https://www.fwc.gov.au/documents/modern_awards/award/MA000076/default.htm
https://www.fwc.gov.au/documents/modern_awards/award/MA000075/default.htm
https://www.fwc.gov.au/documents/modern_awards/award/MA000096/default.htm
https://www.fwc.gov.au/documents/modern_awards/award/MA000023/default.htm
https://www.fwc.gov.au/documents/modern_awards/award/MA000056/default.htm
https://www.fwc.gov.au/documents/modern_awards/award/MA000045/default.htm
https://www.fwc.gov.au/documents/modern_awards/award/MA000002/default.htm
https://www.fwc.gov.au/documents/modern_awards/award/MA000022/default.htm
https://www.fwc.gov.au/documents/modern_awards/award/MA000055/default.htm
https://www.fwc.gov.au/documents/modern_awards/award/MA000095/default.htm
https://www.fwc.gov.au/documents/modern_awards/award/MA000021/default.htm
https://www.fwc.gov.au/documents/modern_awards/award/MA000020/default.htm
https://www.fwc.gov.au/documents/modern_awards/award/MA000001/default.htm
https://www.fwc.gov.au/documents/modern_awards/award/MA000019/default.htm
https://www.fwc.gov.au/documents/modern_awards/award/MA000054/default.htm
https://www.fwc.gov.au/documents/modern_awards/award/MA000118/default.htm
https://www.fwc.gov.au/documents/modern_awards/award/MA000049/default.htm
https://www.fwc.gov.au/documents/modern_awards/award/MA000018/default.htm
https://www.fwc.gov.au/documents/modern_awards/award/MA000115/default.htm
[2017] FWCFB 5536
110
Pest Control Industry Award 2010
Pharmaceutical Industry Award 2010
Pharmacy Industry Award 2010
Poultry Processing Award 2010
Premixed Concrete Award 2010
Quarrying Award 2010
Road Transport and Distribution Award 2010
Seafood Processing Award 2010
Social, Community, Home Care and Disability Services Industry Award 2010
Storage Services and Wholesale Award 2010
Sugar Industry Award 2010
Telecommunications Services Award 2010
Textile, Clothing, Footwear and Associated Industries Award 2010
Timber Industry Award 2010
Vehicle Manufacturing, Repair, Services and Retail Award 2010
Waste Management Award 2010
Wine Industry Award 2010
https://www.fwc.gov.au/documents/modern_awards/award/MA000090/default.htm
https://www.fwc.gov.au/documents/modern_awards/award/MA000043/default.htm
https://www.fwc.gov.au/documents/modern_awards/award/MA000089/default.htm
https://www.fwc.gov.au/documents/modern_awards/award/MA000071/default.htm
https://www.fwc.gov.au/documents/modern_awards/award/MA000017/default.htm
https://www.fwc.gov.au/documents/modern_awards/award/MA000041/default.htm
https://www.fwc.gov.au/documents/modern_awards/award/MA000087/default.htm
https://www.fwc.gov.au/documents/modern_awards/award/MA000084/default.htm
https://www.fwc.gov.au/documents/modern_awards/award/MA000100/default.htm
https://www.fwc.gov.au/documents/modern_awards/award/MA000068/default.htm
https://www.fwc.gov.au/documents/modern_awards/award/MA000038/default.htm
https://www.fwc.gov.au/documents/modern_awards/award/MA000037/default.htm
https://www.fwc.gov.au/documents/modern_awards/award/MA000057/default.htm
https://www.fwc.gov.au/documents/modern_awards/award/MA000074/default.htm
https://www.fwc.gov.au/documents/modern_awards/award/MA000012/default.htm
https://www.fwc.gov.au/documents/modern_awards/award/MA000069/default.htm
https://www.fwc.gov.au/documents/modern_awards/award/MA000097/default.htm
[2017] FWCFB 5536
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ATTACHMENT C
Awards identified that do not appear to have an issue with the interaction between the annual
leave loading clause and penalty rates provisions in the exposure draft
Air Pilots Award 2010
Airline Operations—Ground Staff Award 2010
Aluminium Industry Award 2010
Hydrocarbons Industry (Upstream) Award 2010
Mining Industry Award 2010
Oil Refining and Manufacturing Award 2010
Ports, Harbours and Enclosed Water Vessels Award 2010
Security Services Industry Award 2010
Transport (Cash in Transit) Award 2010
