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Fair Work Act 2009
s.156 - 4 yearly review of modern awards
4 yearly review of modern awards – reasonable overtime and the national
employment standards – Hospitality Industry (General) Award 2010 and
others
(AM2016/15 & AM2014/272)
JUSTICE ROSS, PRESIDENT MELBOURNE, 28 FEBRUARY 2018
4 yearly review of modern awards – plain language re-drafting – reasonable overtime –
Hospitality Industry (General) Award 2010.
[1] During proceedings related to the plain language re-drafting of the General Retail
Industry Award 2010 (Retail Award) an issue arose regarding the interaction between
‘reasonable overtime’ provisions in clause 29.1 and s.62 of the Fair Work Act (the Act).
Clause 29.1 sets out factors to be taken into account in determining whether overtime is
reasonable and is in the same terms as s.62 of the NES.
[2] Clause 29.1 of the Retail Award is as follows:
‘29.1 Reasonable overtime
(a) Subject to clause 29.1(b) an employer may require an employee other than a casual to work
reasonable overtime at overtime rates in accordance with the provisions of this clause.
(b) An employee may refuse to work overtime in circumstances where the working of such
overtime would result in the employee working hours which are unreasonable having regard
to:
(i) any risk to employee health and safety;
(ii) the employee’s personal circumstances including any family responsibilities;
(iii) the needs of the workplace or enterprise;
(iv) the notice (if any) given by the employer of the overtime and by the employee of
their intention to refuse it; and
(v) any other relevant matter.’
[2018] FWC 1244
STATEMENT
E AUSTRALIA FairWork Commission
[2018] FWC 1244
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[3] A similar issue arose in the relation to the Pharmacy Industry Award 2010 (the
Pharmacy award). The Plain Language Full Bench decided to vary the Pharmacy award by
deleting the reasonable overtime clause and inserting the following note at the beginning of
the overtime clause:
‘NOTE: Under the NES (see section 62 of the Act) an employee may refuse to work additional
hours if they are unreasonable. Section 62 sets out factors to be taken into account in
determining whether the additional hours are reasonable or unreasonable.’1
[4] In a Statement2 issued on 22 December 2017 (December Statement) the Plain
Language Full Bench indicated a provisional view to insert the above note in all modern
awards with clauses in the same terms as the Pharmacy Industry Award 2010 and to remove
the reasonable overtime clauses that replicate s.62 of the NES.
[5] Ten additional awards that contained a clause in the same terms as the Pharmacy
award were identified in an attachment to the December Statement. The Hospitality Industry
(General) Award 2010 (the Hospitality Award) contains a reasonable overtime clause in the
same terms but was not listed in the attachment.
[6] The Hospitality award will be referred to the Plain Language Full Bench so that it can
be considered along with the other modern awards with reasonable overtime provisions.
[7] In the December Statement interested parties who opposed the provisional view
expressed in that Statement were directed to file written submissions in support of their
opposition. The Australian Industry Group (Ai Group) filed a submission opposing the
provisional view and proposed that the following provision be included in each of awards
identified:
‘XX. Subject to section 65 of the Act, an employer may require an employee to work
reasonable overtime at overtime rates.
NOTE: Under section 62 of the Act an employee may refuse to work additional hours
if they are unreasonable. Section 62 sets out factors to be taken into account in
determining whether the additional hours are reasonable or unreasonable.’
[8] Any party with an interest in the Hospitality award who oppose the provisional view
expressed at [4] are directed to file a written submission by Friday, 9 March 2018.
[9] In correspondence of 28 February 2018 the Australian Manufacturing Workers’ Union
noted the Ai Group submission and sought an opportunity to respond to it.
[10] Interested parties are directed to file any reply submissions by Friday, 16
March 2018.
[11] In the December Statement we proposed to determine the reasonable overtime issue on
the papers unless any party sought an oral hearing.
[2018] FWC 1244
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[12] Any parties with an interest in the Hospitality award are invited to request an oral
hearing by Friday, 9 March 2018.
[13] Liberty to apply.
PRESIDENT
Printed by authority of the Commonwealth Government Printer
PR600768
1 [2017] FWC 344.
2 [2017] FWCFB 6884
https://www.fwc.gov.au/documents/decisionssigned/html/2017fwcfb6884.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2017fwcfb344.htm#P311_30525
