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, 13 MARCH 2018
4 yearly review of modern awards – award stage – exposure drafts – technical and drafting
issues – Group 3 awards – outstanding issues.
CONTENTS
Page Paragraph
1. Introduction 5 [1]
2. Review of Group 3 awards 5 [4]
2.1 Dredging Industry Award 2010 7 [12]
2.2 Educational Services (Post-Secondary Education) Award 2010 9 [21]
2.3 Educational Services (Schools) General Staff Award 2010 21 [85]
2.4 Gardening and Landscaping Services Award 2010 26 [105]
2.5 Horticulture Award 2010 26 [108]
2.6 Legal Services Award 2010 29 [128]
2.7 Nursery Award 2010 31 [134]
2.8 Pastoral Award 2010 32 [137]
2.9 Silviculture Award 2010 33 [151]
2.10 Sugar Industry Award 2010 40 [185]
2.11 Wine Industry Award 2010 45 [213]
[2018] FWCFB 1405
DECISION
E AUSTRALIA FairWork Commission
[2018] FWCFB 1405
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Page Paragraph
2.12 Banking, Finance and Insurance Award 2010 49 [228]
2.13 Business Equipment Award 2010 50 [232]
2.14 Commercial Sales Award 2010 51 [238]
2.15 Coal Export Terminals Award 2010 51 [240]
2.16 Contract Call Centres Award 2010 55 [253]
2.17 Electrical Power Industry Award 2010 55 [254]
2.18 Higher Education Industry – Academic Staff – Award 2010 58 [270]
2.19 Higher Education Industry – General Staff – Award 2010 60 [277]
2.20 Labour Market Assistance Industry Award 2010 61 [288]
2.21 Ports Harbours and Enclosed Water Award 2010 62 [293]
2.22 State Government Agencies Award 2010 63 [298]
3. Next Steps 64 [303]
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ABBREVIATIONS
The Law Firms 21 private law firms (jointly ‘the Law Firms’)
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
AWU The Australian Workers’ Union
Business SA South Australian Employers’ Chamber of Commerce and
Industry Inc trading as Business SA
CFMEU (M&E) Construction, Forestry, Mining and Energy Union, Mining
and Energy Division
Commission Fair Work Commission
CPSU (VIC ) CPSU, the Community and Public Sector Union Victorian
Branch
CTG Coal Terminals Group
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
ETU Electrical Trades Union of Australia
FWO Fair Work Ombudsman
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
MUA The Maritime Union of Australia
NES National Employment Standards
NFF National Farmers’ Federation
NTEU National Tertiary Education Industry Union
October 2017 decision Full Bench decision – Award stage – exposure drafts –
Group 3 awards – technical and drafting – 30 October
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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2017 [2017] FWCFB 5536
Review 4 yearly review of modern awards under s.156 of the Fair
Work Act 2009
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
the Academic Staff Award Higher Education Industry–Academic Staff–Award 2010
the Banking Award Banking, Finance and Insurance Award 2010
the Clerks Award Clerks—Private Sector Award 2010
the Coal Award Coal Export Terminals 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 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 Award Wine Industry Award 2010
https://www.fwc.gov.au/documents/decisionssigned/html/2015FWCFB6656.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2017fwcfb5536.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. The 33 awards
allocated to Group 3 are listed at Attachment A to this decision.
[2] This decision deals with a small number of outstanding technical and drafting issues
arising out of the awards in Group 3 and should be read in conjunction with the decisions
issued on 6 July 20171 (the July 2017 decision) and 30 October 20172 (the October 2017
decision), which also deal with the Group 3 awards.
[3] In addition to the July 2017 decision and the October 2017 decision, this decision
should be read in conjunction with earlier decisions and statements concerning the Review, in
particular the decisions of 23 December 2014 (the December 2014 decision), 13 July 2015
(the July 2015 decision) and the 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.
2. Background relating to the review of Group 3 awards
[4] Conferences were held on 30 March 2015 to identify the issues to be raised by
interested parties in respect 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 individual award review webpages.
[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 awards. 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;
identify any submissions or variations that were agreed or withdrawn; and
1 [2017] FWCFB 3433
2 [2017] FWCFB 5536
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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. The July 2017 decision dealt with of 19 of the awards in
Group 3 and the October 2017 decision dealt with the remaining awards in Group 3. This
decision deals with the outstanding issues in relation to 22 of the Group 3 awards, as follows:
Banking, Finance and Insurance Award 2010
Business Equipment Award 2010
Commercial Sales Award 2010
Coal Export Terminals Award 2010
Contract Call Centres Award 2010
Dredging Industry Award 2010
Electrical Power Industry Award 2010
Educational Services (Post-Secondary Education) Award 2010
Educational Services (Schools) General Staff Award 2010
Gardening and Landscaping Services Award 2010
Higher Education Industry–General Staff–Award 2010
Higher Education Industry–Academic Staff–Award 2010
Horticulture Award 2010
Legal Services Award 2010
Labour Market Assistance Industry Award 2010
Nursery Award 2010
Pastoral Award 2010
Ports, Harbours and Enclosed Water Vessels Award 2010
Silviculture Award 2010
State Government Agencies Award 2010
Sugar Industry Award 2010
Wine Industry Award 2010
[9] The issue of overtime for casuals has been identified as an outstanding issue in respect
of a number of modern awards. Following the October 2017 decision, the substantive matters
of overtime entitlements for casuals in the Sporting Organisations Award 2010 and the
Fitness Industry Award 2010 were referred to a separately constituted Full Bench for
consideration (in AM2017/51). On 4 December 2017, the Full Bench constituted to deal with
the Sporting Organisations Award 2010 and the Fitness Industry Award 2010 published a
Statement identifying a number of other awards with similar issues.
[10] The following Group 3 awards contain some ambiguity as to whether overtime is
payable to casual employees; when such overtime commences; the rate at which overtime is
payable (or some combination of the three). These awards have been referred to the Full
Bench constituted to deal with AM2017/51:
Banking, Finance and Insurance Award 2010;
Business Equipment Award 2010;
Clerks - Private Sector Award 2010;
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Commercial Sales Award 2010;
Contract Call Centres Award 2010;
Labour Market Assistance Industry Award 2010;
Legal Services Award 2010;
Market and Social Research Award 2010;
Miscellaneous Award 2010;
Real Estate Industry Award 2010;
Telecommunications Services Award 2010;
Educational Services (Post-Secondary Education) Award 2010;
Educational Services (Schools) General Staff Award 2010;
Higher Education Industry-General Staff-Award 2010;
Local Government Industry Award 2010;
State Government Agencies Award 2010;
Coal Export Terminals Award 2010;
Dredging Industry Award 2010;
Electrical Power Industry Award 2010;
Marine Towage Award 2010;
Port Authorities Award 2010;
Ports, Harbours and Enclosed Water Vessels Award 2010;
Gardening and Landscaping Services Award 2010;
Horticulture Award 2010;
Nursery Award 2010;
Pastoral Award 2010;
Sugar Industry Award 2010;
Wine Industry Award 2010.
[11] We now turn to the particular awards.
2.1 Dredging Industry Award 2010
[12] In the October 2017 decision, we formed provisional views in relation to three
outstanding issues in the Dredging Industry Award 2010 (the Dredging Award). Interested
parties were afforded a further opportunity to comment on, or object to, our provisional
views. No submissions were received.
Item 6 – Span of hours
[13] The first issue was outlined at paragraphs [23]-[35] of the October 2017 decision and
relates to item 6 of the summary of submissions document. The item deals with the hours of
work clause in the Award, in particular to the span of hours. The issue arose from a
submission of the Australian Workers’ Union (AWU). We outlined a provisional view that
clause 8.2 of the Exposure Draft should read 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.
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(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.’
[14] Parties were invited to make submissions on our provisional view. No submissions
were received. We confirm our provisional view that clause 8.2 of the exposure draft will read
as outlined at paragraph [13] above.
Item 12 – Weekly aggregated rate
[15] The second outstanding issue was in relation to item 12 of the summary of
submissions document dealing with weekly aggregated wages. This issue was outlined at
paragraphs [39]-[46] of the October 2017 decision.
[16] Parties were invited to make submissions on our provisional view. No submissions
were received.
[17] We confirm our provisional view that the exposure draft will be varied to adopt the
Maritime Union of Australia (MUA)’s methodology. The relevant extract from the October
2017 decision is set out below:
‘[44] By correspondence dated 7 October 2016 the Commission asked the parties to confirm
how the aggregated wages ought to be calculated. 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.
[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.’3
[18] We also confirm that a definition of ‘aggregate rate’ will be added to the exposure
draft, as per paragraphs [40]-[43] of the October 2017 decision. The definition will be
inserted into the definition section of the exposure draft. The definition will read as follows:
3 [2017] FWCFB 5536 at [44]-[45]
[2018] FWCFB 1405
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‘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.’
Item 25 – Definitions
[19] The third outstanding issue was in relation to item 25 of the summary of submissions
document and was outlined at paragraphs [80]-[83] of the October 2017 decision.
[20] A revised exposure draft replacing the words ‘laid up’ with ‘not fully operational’4 in
response to a submission made by the AWU was published. Parties were invited to make
submissions if they had any concerns about the impact of the change. No submissions were
received. The wording ‘not fully operational’ will permanently replace the words ‘laid up’
throughout the Exposure Draft.
2.2 Educational Services (Post-Secondary Education) Award 2010
[21] A number of outstanding items remain in relation to the Educational Services (Post-
Secondary Education) Award 2010 (the Post-Secondary Award).
Item 12 – Academic Teachers – casual rates
[22] In the October 2017 decision, we referred to an issue outlined at item 12 of the
summary of submissions relating to an incorrect reference. The National Tertiary Education
Union (NTEU) made a submission 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)”.5 The Group of
Eight Universities (Go8) agreed with the submissions of the NTEU in relation to this issue in
the Higher Education Industry – Academic Staff – Award 2010, however it was unclear from
it’s submission whether the Group of Eight Universities agrees with the NTEU position in
relation to the Post-Secondary Award revised exposure draft.6 Interested parties were
provided with a further opportunity to confirm their submissions about the amended drafting.7
[23] One submission relating to this issue was received from Australian Business Industrial
and the New South Wales Business Chamber (jointly ABI), confirming that they do not
oppose the drafting proposed by the NTEU.8 We will adopt the submission made by the
NTEU and delete the second reference in clause 10.1(b) to ‘Marking as a supervising
examiner’.
Item 25 – Public Holiday substitution
4 AWU, submission – exposure draft, 18 April 2016, at para 22.
5 October 2017 decision at [87]; NTEU, submission, 8 June 2016
6 October 2017 decision, at [88]
7 Ibid, at [89]
8 ABI, submission, 24 November 2017, at para 7
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014224-sub-abinswbc-241117.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014224andors-corr-nteu-080616.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014223-sub-awu-18042016.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/submissions/Exposure-draft-post-secondary-education-revised.pdf
[2018] FWCFB 1405
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[24] The NTEU submits that clause 20.2 of the revised exposure draft (“Substitution of
public holidays by agreement”) is inconsistent with the NES.9
[25] 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
2016,10 the Go8 submitted that (in respect of the Higher Education awards), the existing
clauses can be retained, but that if the clauses were to be addressed they should be dealt with
by this Full Bench.
[26] The July 2017 decision11 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.12 In correspondence received 28 July 2017,13 the NTEU agreed with the
Go8.
[27] It appears the issue raised in relation to the Higher Education awards is substantially
the same as that raised in the Post-Secondary Award revised exposure draft. We expressed a
provisional view in the October 2017 decision that this matter be dealt with by this Bench.
We invited submissions regarding this provisional view.
[28] ABI subsequently submitted that they are content for the matter to be dealt with by the
presently constituted Full Bench.14
[29] We propose to determine the matter.
[30] Clause 20.2 of the exposure draft is set out in the following terms:
‘20.2 Substitution of public holidays by agreement
By agreement between the employer and the majority of employees in an enterprise another
day may be substituted for a public holiday.’
[31] Clause 29.2 of the current award deals with substitution of public holidays by
agreement and is in identical terms to that of the exposure draft.
[32] In their submission of 14 April 2016 and 8 June 2016, the NTEU submits that clause
20.2 of the revised exposure draft (“Substitution of public holidays by agreement”) is
inconsistent with the NES,15 as follows:
9 NTEU, submission, 8 June 2016
10 Go8, submission, 10 June 2016
11 [2017] FWCFB 3433
12 Ibid, at [57] and [62]
13 NTEU, submission, 28 July 2017
14 ABI, submission, 24 November 2017, at para 8
15 NTEU, submission, 8 June 2016
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014224andors-corr-nteu-080616.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014224-sub-abinswbc-241117.pdf
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/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/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
[2018] FWCFB 1405
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‘Clause 20 – Public Holidays
S. 115(3) of the Fair Work Act allows for substitution arrangements to be provided for in a
modern award, but on the basis of agreement between “an employer and employee”, rather
than, as provided in subclause 20.2, by agreement between “an employer and the majority of
employees”.
20.2 therefore appears to be inconsistent with the NES.
A better approach would be to replace the words “the majority of employees in an enterprise”
with the words “an employee”. The table in clause 5.2 would need to be amended
accordingly.’
[33] Section 115(3) of the Act states the following:
‘s.115 Meaning of public holiday
. . .
(3) A modern award or enterprise agreement may include terms providing for an employer
and employee to agree on the substitution of a day or part-day for a day or part-day that would
otherwise be a public holiday because of subsection (1) or (2)’ [Emphasis added]
[34] A number of other parties made submissions on this issue. The Australian Higher
Education Industrial Association (AHEIA) agreed with the NTEU’s submission in relation to
compliance with the NES.16
[35] In their submission in reply dated 6 May 2016, the South Australian Employers’
Chamber of Commerce and Industry Inc trading as Business SA (Business SA) submit that
they ‘agree with the NTEU’s submission regarding clause 20.2 ‘as they wish to maintain NES
compliance.17 In their submission of 6 May 2016, ABI submit that they ‘agree with the
submissions of the NTEU and the AHEIA as the current wording appears to be inconsistent
with the NES.’18 In their later submission of 24 November 2017, it appears that ABI change
their position and submit that the clause is not inconsistent with the NES. They refer to
s.115(3) of the Act noting that it specifically provides for the ability to substitute public
holidays in the manner set out in the proposed clause 20.2.19
[36] We note that the issue raised by the NTEU also arises in a number of other modern
awards, including the:
General Retail Industry Award 2010;
Manufacturing and Associated Industries and Occupations Award 2010; and
Mining Industry Award 2010.
16 AHEIA, submission, 15 April 2016
17 Business SA, submission, 6 May 2016, at para 5.14
18 ABI, submission, 6 May 2016, at para 14.3
19 ABI, submission, 24 November 2017, at para 8
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014224-sub-abinswbc-241117.pdf
https://www.fwc.gov.au/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/sites/awardsmodernfouryr/AM2014224andors-sub-aheia-150416.pdf
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[37] As the determination of the issue in the context of this award may have implications
for other awards we do not propose to deal with the issue in this decision. This issue will be
the subject of a Statement by the President shortly.
[38] The October 2017 decision noted that according to the summary of submissions
published on 10 October 2017, items 8, 10, 13–16, 19, 24, 29 remain outstanding. Interested
parties were provided an opportunity to confirm submissions about these outstanding items.
We deal with these items in the following paragraphs.
Items 8 and 10 – Breaks
[39] Business SA made a submission20 in relation to clause 9.3 of the exposure draft,
proposing that the clause be moved to under the ‘all employees’ provisions at clause 9.4. They
submit the following:
‘Clause 9.3 Breaks, allows a penalty to be paid for all employees who work through their
normal meal break until they are provided a break. This provision lay under the heading ‘All
Employees’ in the current award but has been placed out of that heading and may possibly be
read as applying only to non-shift workers. Business SA proposes this clause be moved under
the All Employees provisions at 9.4 becoming the new 9.4.’21
[40] In a submission filed on 24 November 2017, ABI agreed with Business SA’s
submission and submit that the change accords with the existing provision set out at clause
22.3(c).22 It appears that no other party has commented on the issue.
[41] The relevant extract from the exposure draft is set out below:
‘9.3 If an employee is required to work through their normal meal break the employee will be
paid 200% of the minimum hourly rate for all time so worked until the meal break is given.
9.4 All employees
(a) An employee must be allowed two paid 10 minute rest breaks on each day as follows:
. . .’
[42] Clause 22.3 of the current award is set out as follows:
‘22.3 All employees
(a) An employee must be allowed two 10 minute rest breaks on each day as follows:
(i) one 10 minute break between the time of commencing work and the usual
meal break; and
20 Business SA, submission, 15 April 2016
21 Ibid, at para 5.1.2
22 ABI, submission, 24 November 2017, at para 9
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014224-sub-abinswbc-241117.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/am2014217andors-sub-bussa-150416.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/education-post-secondary-summary-revised-101017.pdf
[2018] FWCFB 1405
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(ii) a second 10 minute break between the usual meal break and the time of
ceasing work.
(b) An employee who works more than four hours overtime on a Saturday morning
must be allowed a rest break of 10 minutes between commencing and finishing work.
(c) If an employee is required to work through their normal meal break the employee
will be paid double time for all time so worked until such time as the meal break is
given.
(d) An employee working overtime will be allowed a meal break of 20 minutes
without deduction of pay after each four hours of overtime worked.’
[43] We agree with Business SA’s submission. It is clear from the current award that the
provision applies to all employees, and making the change suggested by Business SA will
ensure clarity for the parties. The exposure draft will be updated in accordance with the
submission of Business SA, that is, the current clause 9.3 of the exposure draft will appear
under the heading ‘all employees’.
Item 13 – teachers and tutor/instructors – rounding rules for annual and weekly rates
[44] The exposure draft contained a question for parties asking whether the same rounding
rule should be used for annual and weekly rates for teachers and tutor/instructors as for
academic teachers. The rounding rule for academic teachers is contained in a note at the end
of clause 14.1 of the current award and is as follows:
‘NOTE: The weekly rate of pay for an employee will be determined by dividing the annual
salary by 313, multiplying that amount by 6, and rounding to the nearest $0.10’ [Emphasis
added]
[45] Clause 14.3 of the current award provides the annual salary for teachers and
tutor/instructors and has the following note at the end of the table:
‘NOTE: The weekly rate of pay for an employee will be determined by dividing the annual
salary by 313 and multiplying that amount by 6.’
[46] Business SA did not support the inclusion of a similar rounding rule for teachers and
tutor/instructors as for academic teachers submitting that by including a rounding rule for the
weekly rate there would be a flow on effect to the hourly rate which is calculated in the
exposure draft but not in the current award.23
[47] ABI and NSW Business Chamber do not oppose the continuation of rounding rules in
the award.24 It is not clear from the submission whether they would support including a
rounding rule for teachers and tutor/instructors.
[48] AHEIA did not have a concluded view on whether a rounding rule should be included.
23 Business SA, submission, 15 April 2016, at para 5.2.3
24 ABI, submission, 15 April 2016, at para 14.1
https://www.fwc.gov.au/sites/awardsmodernfouryr/am2014217andors-sub-abi-150416.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/am2014217andors-sub-bussa-150416.pdf
[2018] FWCFB 1405
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[49] We note that in the current award the annual rates for academic teachers are rounded
to the nearest dollar whereas the annual rates for teachers and tutor/instructors are rounded to
the nearest cent. The likely reason that the annual rates are rounded differently in the current
award is that the rates were derived from separate pre-modern awards. As the tables already
appear to have divergent rounding rules for calculating annual rates we see no reason to
include a consistent rounding rule for the calculation of weekly wages at this point. Should we
decide to adopt a consistent approach across awards in relation to rounding we may revisit
this issue.
Item 14 – teacher and tutor/instructors – hourly and daily rates
[50] Item 14 relates to annotations to the table of minimum hourly and daily rates of pay
for teachers and tutors/instructors within the exposure draft. The current award expresses the
minimum pay rates for teachers and tutor/instructors in clause 14.3 as an annual salary only,
with a note as to how to calculate weekly rates of pay.
[51] The casual rates for teachers and tutor/instructors is found in the current award at
clause 14.5–Casual rates–teachers, tutor/instructors and general staff, which is reproduced
below:
‘14.5 Casual rates—teachers, tutor/instructors and general staff
(a) A teacher and a tutor/instructor will be paid a daily rate except where the
engagement is for less than five hours when payment will be at the hourly
rate. Where an hourly rate is paid, it will be payable for each hour of
attendance other than for timetabled tea breaks (in respect of which no more
than 15 minutes will be deducted) and timetabled lunch breaks.
(b) Other than as specified above, casual rates for staff will be calculated as
follows:
Category Calculation
General staff Weekly applicable rate for full-time employees divided by
38 plus 25%
Daily rate: annual salary divided by 261 plus 25%
Hourly rate: daily casual rate divided by 5
Tutor/instructors Daily rate: annual salary divided by 261 plus 25%
Hourly rate: daily casual rate divided by 5’
[52] The exposure draft expresses the rates of pay for teachers and tutor/instructors in one
table in clause 10.1(c), as produced below:
‘(c) Teachers and tutor/instructors
Employee
classification
level
Minimum
annual rate
$
Minimum
weekly
rate1
$
Minimum
hourly rate
$
Casual
daily rate2
$
Casual
hourly
rate3
$
Level 1 47,456.22 909.70 23.94 227.28 45.46
Level 2 48,089.00 921.83 24.26 230.31 46.06
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Employee
classification
level
Minimum
annual rate
$
Minimum
weekly
rate1
$
Minimum
hourly rate
$
Casual
daily rate2
$
Casual
hourly
rate3
$
Level 3 49,039.77 940.06 24.74 234.86 46.97
Level 4 50,000.09 958.47 25.22 239.46 47.89
Level 5 52,022.48 997.24 26.24 249.15 49.83
Level 6 53,370.67 1,023.08 26.92 255.61 51.12
Level 7 54,598.17 1,046.61 27.54 261.49 52.30
Level 8 55,946.45 1,072.46 28.22 267.94 53.59
Level 9 57,301.06 1,098.42 28.91 274.43 54.89
Level 10 59,049.95 1,131.95 29.79 282.81 56.56
Level 11 60,678.08 1,163.16 30.61 290.60 58.12
Level 12 62,115.33 1,190.71 31.33 297.49 59.50
1 The weekly rate of pay for an employee is determined by dividing the annual salary
by 313 and multiplying that amount by 6.
2 The daily rate is paid where the engagement is for more than five hours. As provided
in clause 10.2 the daily rate is paid where the engagement is for 5 hours or more.
3 The hourly rate is paid where the engagement is for less than five hours. As provided
in clause 10.2 the hourly rate is paid where the engagement is less than 5 hours.
[53] Business SA proposes notes 2 and 3 to clause 10.1(c) of the exposure be amended ‘to
ensure clarity’ 25 to read as follows:
2 As provided in clause 10.2 the daily rate is paid where the engagement is for 5 Hours or
more.
3 As provided in clause 10.2 the hourly rate is paid where the engagement is for less than 5
hours.
[54] Clause 10. 2 to of the exposure draft is produced below:
‘10.2 Casual rates—teachers, tutor/instructors and general staff
(a) A teacher and a tutor/instructor will be paid a daily rate except where the engagement is
for less than five hours when payment will be at the hourly rate. Where an hourly rate is
paid, it will be payable for each hour of attendance other than for timetabled tea breaks
(in respect of which no more than 15 minutes will be deducted) and timetabled lunch
breaks.
(b) Other than as specified in clause 10.1(b), casual rates have been calculated as follows:
Category Calculation
General staff Weekly applicable rate for full-time employees divided by 38
plus 25%
Teachers Daily rate: annual salary divided by 261 plus 25%
25 Business SA, submission, 15 April 2016, at para 5.1.3
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Hourly rate: daily casual rate divided by 5
Tutor/instructors Daily rate: annual salary divided by 261 plus 25%
Hourly rate: daily casual rate divided by 5
[55] There were no submissions on this issue from other interested parties.
[56] We agree with Business SA on this issue. Amending notes 2 and 3 to reference clause
10.2 provides clarity as to when a casual teacher or tutor/instructor is to be paid the casual
daily rate or the casual hourly rate, and directs employers and employees to the clause which
explains how casual daily rates and casual hourly rates are calculated.
Item 15 – minimum wages – referencing the annual wage reviews
[57] The Commission asked parties if the award should specify whether any Annual Wage
Review increase is applied to the annual or weekly rates of pay in clauses 10.1(a), (c) and
(d).26
[58] The current award annual and weekly rates of pay tables do not reference the annual
wage reviews.
[59] The NTEU supports the award stating the latest Annual Wage Review rates applied
and how submitting that this would enable parties at the workplace level to ascertain if current
wage rates are being applied.27 Australian Business Industrial and the NSW Business
Chamber do not oppose the NTEU’s submission.28 AHEIA does not object to a reference to
the Annual Wage Review within the award. Business SA submitted that they were seeking
clarification from their members29 but have not subsequently made any further submission on
the issue.
[60] We agree with the NTEU’s submission. A proposed set of words will be incorporated
in the next iteration of the exposure draft.
Item 16 – expense related allowances – meal allowance general staff
[61] Business SA submits that clause 11.2(c) of the exposure draft unintentionally entitles
employees who work overtime on a Sunday to two meal allowance payments within the first
5 hours of overtime.30
[62] The current award meal allowance clause is 15.4. It is produced below:
26 initial exposure draft, 18 December 2015
27 NTEU, submission, 22 November 2017
28 ABI, submission, 24 November 2017, para 13
29 Business SA, submission, 15 April 2016, at para 5.2.4
30 Ibid, at para 5.1.4
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https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014224-sub-abinswbc-241117.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014224-sub-nteu-140416.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/Exposure-draft-post-secondary-education.pdf
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‘15.4 Meal allowance
Clause 15.4 applies only to general staff employed under this award. An employee required to
work for more than one and a half hours of overtime, without being given 24 hours’ notice,
after the employee’s ordinary time of ending work or who works approved overtime for more
than five hours on a Saturday or Sunday, will be paid a meal allowance of $15.14 or supplied
with a meal instead. Where such overtime work exceeds four hours a further meal allowance
of $12.12 will be paid.’
[63] The meal allowance clause of the current exposure draft has been the same since the
first exposure draft of this award under this review.31 Clause 11.2(c) of the exposure draft is
as follows:
‘11. Allowances
Employers must pay to an employee the allowances the employee is entitled to under
this clause.
…
11.2 Expense related allowances
…
(c) Meal allowance—general staff
(i) A meal allowance of $15.14 will be paid to a general staff employee
who:
works more than one and a half hours of overtime after the
employee’s ordinary time of ending work without being given 24
hours’ notice; or
works approved overtime for more than five hours on a Saturday or
Sunday.
(ii) Where overtime worked exceeds four hours, a further meal allowance
of $12.12 will be paid.
(iii The allowance in clause 11.2(c) is not payable when a meal is
supplied by the employer.’
[64] Business SA proposes that the second meal allowance in 11.2(c)(ii) be paid after nine
hours for overtime worked on a Sunday.32 ABI and the NSW Business Chamber supports
Business SA’s submission.33
[65] The NTEU accepts the meal allowance clause within the current exposure draft,
however propose amending 11.2(c)(ii) as follows (additional words bolded for clarity):34
31 Exposure Draft – Educational Services (Post-Secondary Education) Award 2015, published 18 December 2015, at cl 11.2;
Comparison of exposure draft to modern award, 18 December 2015, at p 23
32 Business SA, submission, 15 April 2016, at para 5.1.4
33 ABI, submission, 24 November 2017, at para 14
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https://www.fwc.gov.au/sites/awardsmodernfouryr/Comparison-post-secondary-education.pdf
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‘11.2(c)(ii) Where overtime worked exceeds four hours, or exceeds nine hours if worked on a
Saturday or Sunday, a further meal allowance of $12.12 will be paid.’
[66] We agree with Business SA’s submission. Clause 11.2(c) in the current exposure draft
unintentionally entitles employees working on a Sunday to two meal allowances in the first 5
hours of overtime.
[67] It is our provisional view that the exposure draft be amended in the manner proposed
by the NTEU. Interested parties are invited to comment on our provisional view by
4:00pm Tuesday, 10 April 2018.
Item 19 – Penalty rates
[68] United Voice made a submission35 in relation to the penalty rates clause at clause 14
of the exposure draft. United Voice submit that the formatting of the penalty rates clause in
the exposure draft will create uncertainty about the penalty rate applicable to casual
employees on Saturdays, Sundays and Public Holidays. A summary of the applicable penalty
rates for casual employees who are not shift workers is available at Schedule D.2.1. United
Voice submit the inclusion of the table in the main body of the award will improve its utility
as a working document.
[69] United Voice propose the deletion of clauses 14.1(a), (b) and (c)(i) of the exposure
draft and replace them with the following table:36
Day Penalty Rate Casual penalty rate (inclusive of
25% loading)
% of minimum hourly rate
Saturday 125% 150%
Sunday 200% 225%
Public Holiday 250% 275%
[70] In their submission of 22 November 2017 the NTEU note that they have no objection
to the inclusion of a table format as suggested by United Voice, as this would provide clarity
for casual staff.37
[71] In their submission dated 24 November 2017 ABI and the NSW Business Chamber
oppose the submission of United Voice and submit that no confusion arises and the
amendment is unnecessary.38
34 NTEU, submission, 22 November 2017, para 10
35 United Voice, submission, 31 March 2016
36 Ibid, at para 2.
37 NTEU, submission, 22 November 2017, at para 11
38 ABI, submission, 24 November 2017, at para 15
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014224-sub-abinswbc-241117.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014224-sub-nteu-221117.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/AM2014224andors-sub-uv-310316.pdf
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[72] We agree with the submission of ABI and the NSW Business Chamber. The table
already exists, albeit in a longer form, at Schedule D to the award. There is no need to
summarise this table and then insert it in the penalty rates clause of the award.
Item 24 – Payment of annual leave
[73] Business SA made a submission39 in relation to a note in clause 16.3 of the exposure
draft, which is in the following terms:
‘NOTE: Where an employee is receiving overaward payments such that the employee’s base
rate of pay is higher than the rate specified under this award, the employee is entitled to
receive the higher rate while on a period of paid annual leave (see ss.16 and 90 of the Act).’
[74] Business SA submit:
‘The exposure draft adds an unnecessary note to this subclause, the intent of which is already
provided by s 16 and 90 of the legislation. Business SA submits this note not be added to the
revised award.’
40
[75] The NTEU agree to the removal of the note41 and ABI and the NSW Business
Chamber also support the submission of Business SA.
[76] This note was inserted into all exposure drafts as a result of the Full Bench decision in
[2015] FWCFB 4658.42 The Full Bench decision deals with a number of technical and
drafting issues including the issue of the rate of pay an employee receives when they are on
leave. The decision outlined that a note would be inserted into all modern awards explaining
that when the base rate of pay is higher than the ordinary rate in the award, the higher rate
must be paid to the employee while on leave.43
[77] The note will remain in the exposure draft.
Item 29 – Schedule I – Definitions of teacher and tutor/instructor
[78] This item relates to a query from the Commission that was inserted into the exposure
draft at Schedule I – Definitions. The query relates specifically to the definition of ‘teacher’
and ‘tutor/instructor’, as follows:
‘Parties are asked to clarify whether an employee who does not hold a teaching qualification
and is teaching a course or units which are accredited falls within the definition of a teacher or
tutor/instructor.’
[79] Schedule I of the exposure draft provides the following definitions of ‘teacher’ and
‘tutor/instructor’:
39 Business SA, submission, 15 April 2016, at para 5.1.6
40 Ibid, at para 5.1.6
41 NTEU submission, 22 November 2017 at para 12
42 [2015] FWCFB 4658, at [73] – [94]
43 Ibid, at [94]
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‘teacher means an employee engaged to teach students where a teaching qualification is
mandatory or required by the employer, and where the work required involves teaching a
course of study or units of work recognised within or pursuant to the Australian Qualifications
Framework or accredited by a relevant state or territory authority and which is neither the work
of an academic teacher nor a tutor/instructor
tutor/instructor means an employee engaged in providing tutoring/instruction to students
where the course is not accredited and where the employer may not require a teaching
qualification and which is neither the work of an academic teacher nor a teacher’
[80] The same definitions appear in the clause 3 of the current award.
[81] In their submission of 22 November 2017, the NTEU repeat their earlier submission,
as follows:
‘. . . it is a requirement for the registration of a Registered Training Provider that the employer
institution demonstrate to the regulatory authority that the staff delivering accredited courses
are teacher qualified, and therefore that this circumstance should not arise. A person without
the qualification would not be able to be employed in such work without the employing
institution jeopardising its registration.
NTEU submits that no changes are needed to the definitions to deal with a hypothetical
category of employee who cannot be employed in this industry.’44
[82] ABI and the NSW Business Chamber made a submission45 in relation to this item in
which they also repeat their earlier submission, as follows:
‘We note that this ambiguity has arisen because the definitions of teacher and tutor/instructor do
not cater for this particular situation. Therefore, in the absence of either of the above
definitions, we must turn our attention to the definition of category D teacher in clause B .3 .1
(d). A category D teacher is defined as:
“any other teacher, including a Vocational Education and Training (VET) tutor who
has the qualifications required by the accredited curriculum or training package and
who delivers and/or assesses nationally recognised competency based training which
may result in a qualification or Statement of Attainment under the Australian
Recognition Framework (ARF).”
As a minimum, to be considered a teacher for the relevant course the employee would need to
meet this definition. If they do not meet this definition in the circumstances, they would have
to be considered a tutor/instructor.’46
[83] Business SA also made a submission relating to this issue, as follows:
‘Business SA sought clarification from members as to the existence of this issue as the
definitions do not contemplate this circumstance. Our members stated that their teachers must
44 NTEU, submission, 14 April 2016, at p.17
45 ABI, submission, 24 November 2017, at para 17
46 ABI, submission, 15 April 2016, at paras 14.3 – 14.5
https://www.fwc.gov.au/sites/awardsmodernfouryr/am2014217andors-sub-abi-150416.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014224-sub-abinswbc-241117.pdf
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have qualifications either in their field or at least a Training and Assessment Certificate IV
(TAE IV) qualification. Alternatively, tutors/instructors were considered a person who does
not yet hold a TAE IV qualification or is supporting a specialist TAE IV where that tutor can
only provide a complementary level of contribution.
Members explicitly stated that there are too many under-skilled TAFE teachers earning an
income above their skill or capability level. Business SA submits that employees without
adequate teaching qualifications should be employed as a tutor/instructor.’47
[84] We have decided that the definitions should remain as they currently appear in the
award.
2.3 Educational Services (Schools) General Staff Award 2010
[85] In relation to the Educational Services (Schools) General Staff Award 2010 (General
Staff Award), items 23, 24, 25, 26 and 28 of the summary of submissions were not discussed
during the hearing on 7 June 2016. These items remain outstanding. In our October 2017
decision, parties were asked to indicate whether they intend to press these matters.
[86] The Associations of Independent Schools (AIS) and Independent Education Union of
Australia (IEU) filed a submission indicating that they continue to press the variation of the
exposure draft in the manner proposed. They note that the changes proposed in items 24, 25
and 26 are minor and technical and if the Commission is so minded, could be determined on
the material already filed.48 We will now determine these items.
Item 24 and Item 25– reasonable additional hours for part-time employees.
[87] The Association of Independent Schools (AIS) and IEU made a submission49 relating
to clause 16.3 of the exposure draft which deals with reasonable additional hours for part-time
employees. This was noted at item 24 of the summary of submissions document.
[88] The change the AIS and IEU are seeking to the exposure draft is set out below:
‘16.3 Reasonable additional hours—part-time employees
(a) An employer may require a part-time employee to work reasonable additional hours in
accordance with clause 16.3.
(a)(b) Where the employee’s hours are averaged
The employee will be paid for all additional hours at the applicable casual hourly rate
for all hours worked that:
(i) fall within the applicable daily spread of hours in clause 9.5;
(ii) do not result in the employee working more than eight hours on that day; and
47 Business SA, submission, 16 April 2016, at para 5.2.8
48 AIS and IEU, submission, 24 November 2017
49 AIS and IEU, submission, 14 April 2016, at para 19
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(iii) do not result in an employee whose hours are averaged, to working more than
the allowed maximum weekly ordinary hours during the averaging period.
(b) (c) The employee will be paid for all additional hours at the applicable overtime rate in
clause 16—Overtime for all hours worked that:
(i) Are outside the applicable daily spread of hours in clause 9.5; and
(ii) result in the employee working more than eight hours on that day, or
(iii) result in an employee whose hours are averaged, to working more than the
allowed maximum weekly ordinary hours during the averaging period.’
[89] They submit that the words ‘where the employee’s hours are averaged’ be removed
and the clause be renumbered accordingly.
[90] AFEI made the same submission,50 noting that the heading appears to limit reasonable
additional hours to part time employees whose hours are averaged. They submit this is a
substantive change as the current award does not contain this limitation.
[91] The current award states:
‘22.4 An employer may require a part-time employee to work reasonable additional hours in
accordance with the provisions of this clause.
(a) Where the employee’s hours are averaged:
(i) the employee will be paid for all such additional hours at the casual hourly
rate of pay, provided that the additional hours fall within the applicable daily
spread of hours in clause 22.3, do not result in the employee working more
than eight hours on that day, and do not result in the employee working more
than the allowed maximum weekly ordinary hours during the averaging
period; and
(ii) in all other cases the employee will be entitled to payment at the appropriate
overtime rate of pay for any additional hours worked.
(b) Where the employee’s hours are not averaged:
(i) the employee will be paid for all such additional hours at the casual hourly
rate of pay, provided that the additional hours worked fall within the
applicable daily spread of hours in clause 22.3, and do not result in the
employee working more than eight hours on that day; and
(ii) in all other cases the employee will be entitled to payment at the appropriate
overtime rate of pay for any additional hours worked.
(c) Where additional hours are worked on a day the employee is already attending for
work, the minimum casual engagement of two hours will not apply.
50 AFEI, submission, 15 April 2016, at para 17; see item 25 of the summary of submissions document
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(d) Additional hours worked by a part-time employee in accordance with this clause do
not accrue leave entitlements under this award or the NES.’
[92] The exposure draft will be amended as suggested by the parties. It appears that in
redrafting the clause, the heading ‘where the employee’s hours are averaged’ has been
incorrectly positioned.
Item 26 – payment for annual leave
[93] The AIS and the IEU submit that the percentage in clause 17.3(b)(i) (relating to annual
leave loadings and exceptions) is incorrect and has been incorrect in the award since the
award modernisation process.51 The percentage in the clause is currently 1.3426%. The AIS
and IEU submit that it should be 1.3415% as this is 17.5% of 4 weeks salary and this is
consistent with what appears in the Educational Services (Teachers) Award 2010.
[94] The relevant clause from the exposure draft is extracted below:
‘17.3 Payment for annual leave
(a) During a period of annual leave, an employee will receive a loading calculated on the
rate of wage prescribed in clause 12—Minimum wages of this award. Annual leave
loading is payable on leave accrued on the following bases:
(i) Day workers
Employees who would have worked on day work only had they not been on leave—
17.5% of their ordinary rate of pay.
(ii) Shiftworkers
Employees who would have worked on shiftwork had they not been on leave—17.5%
of their ordinary rate of pay or the applicable shift loading, whichever is the greater.
(b) Exception
An employer may, at its election, pay:
(i) annual leave loading to the employee with each salary payment throughout the
school year by increasing the annual rate of pay as at the commencement of
the school year, or as subsequently varied, by 1.3426%. Where an employer
elects to pay annual leave loading with each salary payment throughout the
school year, the employer must advise the employee in writing; or
(ii) annual leave loading in respect of the school year to the employee with the
first salary payment in December of that school year at the rate of pay
applicable on 1 December of that school year.
51 AIS and IEU, submission, 14 April 2016, at p.34
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NOTE: Where an employee is receiving overaward payments such that the employee’s base
rate of pay is higher than the rate specified under this award, the employee is entitled to
receive the higher rate while on a period of paid annual leave (see ss.16 and 90 of the Act).’
[95] The relevant clause from the current award states:
‘28.3 Annual leave loading
(a) During a period of annual leave, an employee will receive a loading calculated on the
rate of wage prescribed in clause 15—Minimum wages of this award. Annual leave
loading is payable on leave accrued on the following bases:
(i) Employees who would have worked on day work only had they not been on
leave—17.5% of their ordinary rate of pay.
(ii) Employees who would have worked on shiftwork had they not been on
leave—17.5% of their ordinary rate of pay or the applicable shift loading,
whichever is the greater.
(b) Except that an employer may, at its election, pay:
(i) annual leave loading to the employee with each salary payment throughout the
school year by increasing the annual rate of pay as at the commencement of
the school year, or as subsequently varied, by 1.3426%. Where an employer
elects to pay annual leave loading with each salary payment throughout the
school year, the employer must advise the employee in writing; or
(ii) annual leave loading in respect of the school year to the employee with the
first salary payment in December of that school year at the rate of pay
applicable on 1 December of that school year.’
[96] No other party has made a submission on this issue.
[97] Interested parties have a further opportunity to comment on the submission made by
the AIS and IEU. Such comments are to be made by no later than 4:00pm Tuesday,
27 March 2018. If no submissions are received the Commission will determine the matter.
Item 23– broken shifts and Item 28–Schedule B–summary of hourly rates of pay
[98] The AIS and IEU noted in their submission that the variations at items 23 and 28 seek
to preserve entitlements varied (possibly unintentionally) by the exposure draft. In order that
the matters are dealt with expeditiously they request that the Commission convene a
conference in respect of the items.
[99] Item 23 deals with the issue of broken shifts. The AIS and the IEU ae seeking to insert
a new clause 15.4(b) and make changes to clause 15.5 of the exposure draft to correct what
they say is a significant error which has arisen during the redrafting of the award. They submit
that ‘in condensing and amalgamating several clauses the exposure draft has applied the non-
accumulation provisions of clause 26.3 of the current award, which deals specifically with the
interrelationship between clause 26–Penalty Rates and clause 27–Overtime, to the provisions
[2018] FWCFB 1405
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of clause 25.3–Broken shifts.’ They further submit that ‘in this sector of the industry broken
shift payments are and have been paid in addition to other penalty payments.’52
[100] The change that the AIS and IEU are seeking to the exposure draft is set out below:
‘15.4 Broken shifts
(a) An employee, other than a casual employee, rostered to work ordinary hours
in a broken shift will be paid 115% of the minimum hourly rate with a
minimum payment as for of two hours for each period of duty.
(b) The broken shift penalty under clause 15.4(a) is in addition to any other
applicable penalty under clause 15.2 –Payment for shiftwork, clause 15.3 –
Saturday and Sunday work and clause 16 – Overtime.
(b)(c) 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)(d) The provisions of clause 15.4(bc) 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.
15.5 The penalty rates within this clause 15.2 – Payment for shiftwork, relating to
afternoon and evening shifts, and clause 15.3 – Saturday and Sunday work and in
clause 16—Overtime are not cumulative. Where an employee is entitled to more than
one penalty or overtime rate, the employee will be entitled to the highest single
penalty rate.’
[101] AFEI, in their reply submission of 9 May 2016 oppose the amendments proposed by
the AIS and IEU as they say it would involve a substantive change to the award. AFEI
submits that the current award does not require the broken shift penalty to be paid in addition
to other penalties.53
[102] Item 28 deals with an amendment that is being sought by the AIS and the IEU in
relation to Schedule B.1.2 of the exposure draft which deals with summary hourly rates of
pay. The AIS and IEU submit that, consistent with the changes they seek at item 23 of the
summary of submissions document (outlined above), there is a need for additional rates tables
reflecting the rates paid in event of a broken shift being worked during another shift.54
[103] No other party has commented on the above proposal by the AIS and the IEU in
respect of Item 28.
[104] As requested by the AIS and IEU a conference will be convened on Thursday, 29
March 2018 at 12:00pm before Commissioner Johns for the purposes of finalising item 23
52 Ibid, at para 18
53 AFEI, submission, 9 May 2016, at para 31
54 AIS and IEU, submission, 14 April 2016, at para 21
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and 28 of the summary of submissions document. Following this conference, a short
statement will be issued outlining the outcome of the conference and setting out the process
for finalising the technical and drafting aspects of this award.
2.4 Gardening and Landscaping Services Award 2010
[105] The October 2017 decision noted we outlined that there were two items (items 2 and
20) regarding the entitlement to overtime for part-time and casual employees, which remain
unresolved. Parties wishing to pursue the variation were requested to make submissions to
that effect.55 No submissions were received.
[106] A separate Full Bench has been constituted to look at the issue of whether casual
employees are entitled to overtime (AM2017/51), as the issue has been identified as an
outstanding item in a number of other modern awards through the award stage of the review.
A Statement56 was issued outlining a process for parties seeking a variation to any of the
modern awards identified. The Gardening and Landscaping Services Award 2010 is one of
the awards identified in the Statement.57
[107] There are no other outstanding items in relation to this award.
2.5 Horticulture Award 2010
[108] After the October 2017 decision a number of matters remained outstanding and
interested parties were granted time to provide further submissions on the issues. Submissions
were received from the National Farmers Federation (NFF), the Australian Federation of
Employers and Industries (AFEI) and the Australian Industry Group (Ai Group). We now turn
to those outstanding issues.
Item 12 – Part-time employees
[109] The October 2017 decision rejected a submission from Ai Group that the term
‘ordinary hourly rate’ appearing in clause 6.4(b) should be replaced with ‘minimum hourly
rate’.58 Clause 6.4(b) appears 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)
[110] In order to add clarity to the wages table appearing at clause 10.1(a), and to alleviate
Ai Group’s concern that clause 6.4(b) is confusing because clause 10 does not contain
ordinary hourly rates, we proposed 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.’59
55 [2017] FWCFB 5536, at [171]
56 [2017] FWCFB 6417
57 See Attachment A to [2017] FWCFB 6417
58 [2017] FWCFB 5536, at [192]-[199]
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[111] Parties were invited to comment on this proposal. One submission was received from
the NFF advising that it did not object to the proposal.60
[112] This matter will be given further consideration by the Plain Language Full Bench.
Item 45 – Summary of hourly rates of pay
[113] The October 2017 decision set out our intention to adopt the approach proposed at
paragraphs [360] – [361] of the July 2017 decision, namely where an award contains an all-
purpose allowances that applies to all employees and that allowances has been incorporated in
the rates in the hourly rates tables, identified by a note along the following lines:
‘x Ordinary hourly rate includes the industry allowance payable to all employees for all
purposes.’
[114] Parties were provided with an opportunity to comment on the proposal. The NFF, was
the only party to make a comment, and advised that they did not oppose the Commission’s
proposal.61
[115] In the absence of any views to the contrary, we will adopt the proposed course of
action and include the note as outlined above.
Items 15 and 47 – Casuals
[116] 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.62 Ai Group advised that it does not have a concluded view on the matter.63 The
AWU position is that casuals can be engaged as shiftworkers and pressed for the inclusion of
wage rates tables for casual shiftworkers 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.’64
[117] The NFF 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.
59 [2017] FWCFB 5536, at [198]
60 NFF, submission, 24 November 2017, at para 3
61 NFF, submission, 24 November 2017, at para 4
62 FWO, correspondence, 2 March 2015, at item 19
63 Transcript, 8 August 2016, at [PN589]
64 Ibid, at [PN591]
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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.’65
[118] In the October 2017 decision we indicated our support of the position of the NFF that,
on the face of it at least, the recasting of clause 22.2 of the Horticulture Award 2010
(Horticulture Award) as a standalone clause 14 in the exposure draft could result in a
substantive change.66
[119] Absent the provision of further material we were not in a position to determine the
issue at that time. Parties were directed to advise whether they wished to pursue this issue.67
[120] The only party to make any further submissions was the NFF, which ‘maintains that
casual employees cannot be engaged as shift workers under the Horticulture Award and
therefore, clause 22.2 of the current award should be co-located with clause 22.1 in the
exposure draft.’68
[121] Given our previous support for the NFF’s position, and the absence of further
submissions promoting an alternate view, we will maintain the status quo and amend the
exposure draft by moving clause 14 to appear at clause 8.2. If the AWU wish to pursue the
issue as a substantive variation they should advise us of their intent to do so by
4:00pm Tuesday, 10 April 2018.
Item 27 – Pieceworkers
[122] The NFF proposed defining the full and base rate of pay for pieceworkers for the
purpose of calculating NES entitlements and submits that its approach ‘reflects the fact that
hours of work are not always recorded for pieceworkers’.69 Ai Group submitted that the
proposal would amount to a substantive change and should be dealt with in the process the
Commission has adopted for dealing with substantive changes that are contentious. Ai Group
advised it may seek to be heard in relation to the proposal.70 The NFF’s proposal is opposed
by the AWU.71
65 NFF, further submission – exposure draft, 15 August 2016
66 [2017] FWCFB 5536, at [213]
67 Ibid at [213]
68 NFF, submission, 24 November 2017, at para 5
69 NFF, submission – pieceworkers, 5 August 2016
70 Ai Group, correspondence – outstanding issues, 24 August 2016
71 Transcript, 8 August 2016, at [PN638]
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[123] In the October 2017 decision we determined that the matter should be referred to a
separately constituted Full Bench, and requested that AFEI advise the Commission of its
position in relation to this issue.72 AFEI has advised the Commission that it ‘does not support
the proposal put forward by the National Farmers’ Federation (NFF), which is a significant
departure from the terms of the current award.’73 AFEI submits that the issue ‘is not a
technical or drafting issue and should be pursued as a substantive change.’74
[124] Given the approach of all other parties the NFF is asked to confirm whether or not it
presses the proposed variation by 4:00pm Tuesday, 10 April 2018. If the matter is pressed it
will be referred to a separately constituted Full Bench for determination as a substantive
change to the current award provisions.
Item 50 – Definition of ‘ordinary hourly rate’
[125] In submissions filed in 2016, Ai Group submitted that the definition of ‘ordinary
hourly rate’ should be amended to replace the reference to clause 10.1(a) with a reference to
clause 10, so that rates payable to junior employees (which appear at clause 10.3) were
captured.75 Parties with an interest in the Horticulture Award agreed to the clause being
amended as proposed by Ai Group.
[126] Ai Group have since made a further submission arguing that, with the agreed change
adopted, the clause fails to have regard to employees to whom the National Training Wage or
Supported Wage System applies.76 Ai Group submits that the definition of ‘ordinary hourly
rate’ should be amended as follows:
‘ordinary hourly rate means the hourly rate for the employee’s classification specified in this
award 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’77
[127] We have decided that interested parties should be given an opportunity to comment on
Ai Group’s subsequent suggestion. Interested parties will have until 4:00pm Tuesday,
10 April 2018 if they wish to comment on the issue.
2.6 Legal Services Award 2010
[128] In the October 2017 decision we expressed two provisional views in relation to the
Legal Services Award 2010 (the Legal Services Award). Interested parties were provided an
opportunity to file further submissions on these provisional views. A revised exposure draft
for the Legal Services Award was published on 2 November 2017. One submission was
received from a group of 21 private law firms (jointly ‘the Law Firms’). No submission from
72 [2017] FWCFB 5536, at [227]
73 AFEI, submission, 24 August 2017
74 Ibid
75 Ai group, submission, 14 April 2016, at para 337
76 Ai Group, submission, 24 November 2017, at para 3
77 Ibid, at para 4
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any other party was received. We deal with these two provisional views in the following
paragraphs.
Item 13 – Ordinary hours of work and roster cycles
[129] The October 2017 decision expressed a provisional view in relation to the proposed
re-drafting of clause 8.1 of the exposure draft. Clause 8.1 deals with ordinary hours of work
and roster cycles. The Law Firms proposed a variation to clause 8.1 which, in short, inserted a
requirement that overtime be authorised.78 In the October 2017 decision we noted that we
were disposed to granting the claim.79 It was also noted that ‘the ASU did not make any
submission in opposition to the proposed requirement that overtime must be authorised.’80 In
the absence of any further submission regarding this issue, we confirm our provisional view
that the requirement that overtime be authorised will be inserted into clause 8.1(d)(iii) of the
exposure draft as follows:
‘(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(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.’
Item 16 – Rest Breaks
[130] The October 2017 decision set out our provisional view that we would amend clause
9.2(a) of the exposure draft in a manner that more closely reflects the provision for rest breaks
in the Clerks –Private Sector Award 2010. 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
78 [2017] FWCFB 5536 at [244]-[251]; See specifically [247]
79 Ibid, at [250]
80 Ibid, at [249]
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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.’
[131] Parties were afforded an opportunity to comment on the provisional view. One
submission was received from the Law Firms, noting that they ‘support the proposal of the
Commission to vary clause 9.2(a)…’81 They also noted that they no longer press the previous
proposed variation to clause 9.2(a) of the exposure draft.82
[132] We confirm our provisional view and clause 9.2(a) of the exposure draft will be
amended as noted at [130] above.
[133] There are no outstanding technical and drafting matters in relation to the Legal
Services Award.
2.7 Nursery Award 2010
Item 5 – Part-time employment
[134] The parties suggested this item (dealing with casual and part-time employment) should
be re-visited after the decisions in the Casual and Part-time employment common issue
proceedings were handed down.
[135] In the October 2017 decision parties were asked to make a submission if they wished
to have the issue enlivened.83 No submissions were received. In the absence of any further
submissions we consider that this item is withdrawn.
Item 20 – Summary of hourly rates of pay – casual employees
[136] The October 2017 decision,84 indicated that we intend to insert proposed Table B.3.2
of Schedule B into the Nursery Award 2016. Parties were given a final opportunity to object
to this proposal. No submissions or objections were received. The table will be inserted into
the exposure draft.
2.8 Pastoral Award 2010
81 Submission of the Law Firms, 24 November 2017 at para 5
82 Ibid, at para 6
83 [2017] FWCFB 5536, at [274] – [275]
84 Ibid, at [279]-[281]
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[137] A Statement was issued on 20 December 201785 in relation to the Pastoral Industry
Award 2010 (the Pastoral Award) setting out the process for dealing with the outstanding
issues relating to this award.
[138] A further conference was held on 9 February 201886 and a Report87 published on the
same day.
[139] The AWU and NFF subsequently filed submissions in relation to the matters dealt
with in the Report.88 The outstanding issues are dealt with below.
1. Provision of a saddle: clauses 17.2 and 29 of the current award and clause
25.1 of the revised exposure draft.
[140] The AWU and NFF support the proposal advanced by the Commission at the
conference on 9 February 2018 to vary clause 25.1 of the revised exposure draft to read:
‘25.1 Where a station hand is required by the employer to find their own horse and/or
saddle, the employee will be paid weekly allowances of:
(a) $7.26 for the horse; and
(b) $5.80 for the saddle.
The allowance specified in clause 25.1(b) is not payable where the employer has
reimbursed the employee for the cast of the saddle.’
[141] It was also agreed that there be no variation to clause 10.2(a) of the revised exposure
draft.
[142] We endorse the position agreed to by the AWU and NFF. The revised exposure draft
will be amended accordingly.
2. Station cooks and part-time rates: clauses 10.3 and 30.1 of the current award
[143] The background to this issue, including the Full Bench’s provisional view is set out at
paragraphs [317]-[323] of the October decision (Also see [126]-[130] of the July decision).
[144] There was no objection to the adoption of the provisional view expressed in the July
decision at [130]. No amendment is required to the exposure draft.
3. Public holidays for piggery attendants: clauses 26 and 38.3 of the current
award
85 [2017] FWC 6871
86 Transcript, 9 February 2018
87 Report and directions, 9 February 2018
88 AWU, submission, 5 March 2018; NFF, submission, 6 March 2018
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[145] The background to this issue and the Full Bench’s provisional view is set out at
paragraphs [320]-[322] of the October decision (Also see [155]-[159] of the July decision).
[146] There was no objection to the adoption of the provisional view expressed in the July
decision at [159]. No amendment is required to the exposure draft.
4. Outstanding issue relating to meal breaks and allowances (clauses 17.2(c)(ii)
and 36.10 of the current award)
[147] The background to this issue is set out at paragraphs [285] – [292] of the October 2017
decision.
[148] In short, the Full Bench determined the operation and interaction of the two clauses is
ambiguous and requires review before the Commission can be satisfied that the relevant terms
achieve the modern awards objective.
[149] The interested parties submitted draft directions for the determination of the matter.
The draft directions have been confirmed and have been issued.89
5. Definition regarding non-continuous work (inserted at clause 31.1 of the
exposure draft)
6. Proposal to amend footnotes in clause B.4.2 and B.4.5 of the exposure draft
[150] In accordance with the agreement reached at the conference on 9 February 2018 the
Commission will provide a plain language draft of clause 35.9 of the current award to the
parties for their consideration.
2.9 Silviculture Award 2010
Items 6 and 8 – Definition of full-time and part-time employees
[151] The October 2017 decision dealt with an issue relating to the definition of full-time
and part-time employees. Item 6 of the revised summary of submissions refers to clause 6.3 of
the exposure draft, which sets out the definition for full-time employees. The AWU sought to
include the word ‘ordinary’ in the phrase ‘an average of 38 ordinary hours per week’.90
Similarly, item 8 of the summary of submissions document refers to clause 6.4(a)(i) of the
exposure draft which sets the definition for part-time employees. The AWU also seeks to
include the word ‘ordinary’ in the phrase ‘less than 38 ordinary hours per week’.91
[152] 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. 92The span of ordinary hours in
the current award (and exposure draft) is 5.00 am to 5.00 pm. The NFF provides an example
89 Report and directions, 9 February 2018
90 AWU, submission, 17 April 2016, at para 3
91 Ibid, at para 5
92 NFF, submission, 9 June 2016, at para 13; NFF, submission, 7 February 2018, at para 13
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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.93
[153] 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.94 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.95
[154] The October 2017 decision stated that we were not persuaded that the word ‘ordinary’
should be inserted into either clause 6.3 or 6.4(i) of the exposure draft but sought comment
from the parties in relation to the following possible wording that adopts the approach that has
been applied in relation the same clauses in the Pastoral Award exposure draft:
‘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…’
[155] Parties were provided an opportunity to comment and/or advise the Commission as to
whether they wish to pursue this issue.
[156] One submission was received by the NFF in relation to this issue. No submissions
were received from any other party. The NFF submit the following:
‘Should the AWU be minded to pursue this issue, the NFF remains opposed to the insertion of
the word ‘ordinary’ into clauses 6.3 and 6.4(i). We are not opposed to the wording proposed by
the Commission at paragraph [347] of the Decision.’96
[157] In absence of any submission from the AWU, we have decided to adopt the approach
outlined in our October 2017 decision, that is, we will adopt the same approach that has been
used in relation to the same clauses in the Pastoral Award.
Item 15 – Actual weekly rate
93 NFF, submission, 9 June 2016, at paras 13-14; NFF, submission, 7 February 2018, at para 12
94 Transcript, 8 August 2016, at [PN39]
95 Transcript, 8 August 2016, at [PN40]
96 NFF, submission, 24 November 2017, at item 6 and 8, para 1.
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[158] An outstanding issue remains in relation to item 15 of the summary of submissions
document. This was dealt with in detail in the October 2017 decision. At clause 10.3 of the
exposure draft there is a definition of 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.97
The NFF proposes that a single approach be adopted in this award with regard to the ‘actual
weekly rate’ and offer two options to give effect to this.98
[159] The NFF submits that the Commission could by replace 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.’99
[160] Alternatively, the Commission could delete clause 10.2 and 10.3 and include 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.’100
[161] 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.
[162] In the October 2017 decision we noted that 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 arising from 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 exposure draft defines ‘ordinary hourly
rate’ as the hourly rate for the employee’s classification in clause 10.1, inclusive of any all
97 NFF, submission, 9 June 2016, at para 24
98 NFF, submission, 9 June 2016, at paras 25-26; NFF, submission, 17 January 2017, at para 8
99 NFF, submission, 9 June 2016, at paras 25-26
100 Ibid, at para 27
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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 NFF’s proposals
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.
[163] We expressed a provisional view that we preferred the second of the two options
proposed by the NFF. This is consistent with the drafting style being used in this process. We
also proposed to update the heading of ‘actual weekly rate’ in the table of clause 10.1 to
‘Ordinary weekly rate’ for consistency.
[164] Parties were provided an opportunity to comment further on the issue. One submission
was received from the NFF stating that they support our provisional view101. We confirm our
provisional view, and the exposure draft will be updated as set out at para [90] of this
decision. The heading of ‘actual weekly rate’ in the table of clause 10.1 will be changed to
‘ordinary weekly rate’ for consistency.
Item 19 – Leading hand allowance
[165] In our October 2017 decision we dealt with an issue relating to the leading hand
allowance in the exposure draft. 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.102 Clause 11.3(b) of the exposure draft provided:
‘(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.’103
[166] The AWU propose the following amendments:
101 NFF, submission, 24 November 2017, at item 15 para 2.
102 AWU, submission, 17 April 2016, at para 15
103 Exposure Draft – Silviculture Award 2016, published 29 July 2016
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/exposure-draft-silviculture-revised-290716.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-241117.pdf
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‘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.’ 104
[167] The AWU referred to the pre-modern Silviculture Award which contained the
following provision:
‘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).’105
[168] The current Silviculture 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.’
[169] 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.106 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’.
[170] We agree with the AWU that the drafting of the exposure draft has resulted in an
unintentional change in the operation of this provision. It is appropriate that the provision be
104 AWU, submission, 17 April 2016, at para 15
105 AWU, submission, 9 February 2017, at para 3
106 NFF, submission, 9 June 2016, at para 35
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-awu-170416.pdf
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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redrafted to reflect the correct operation of the current provision. The wording of the current
Silviculture Award should be clarified and we propose to do so.
[171] 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.
[172] In our October 2017 decision, we expressed a provisional view that clause 11.3(b) of
the exposure draft 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
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.’107
[173] Parties were provided an opportunity to comment on our provisional view. One
submission was received from the NFF relating to the issue. The NFF state in their
submission of 24 November 2017 that they support the Commission’s provisional view that
the reference rate in clause 11.3(b)(ii) should be changed to ‘ordinary weekly rate’.108 But go
on to submit the following:
‘. . . the NFF presses its submission in relation to the calculation of the rate of pay. The NFF
submits that the intent of “leading hand allowance” is to provide an employee who supervises
other employees with an additional allowance if his/her ordinary rate of pay does not already
include a component in recognition of those supervising responsibilities. If the rate already has
such a competence “built-in” then the employee should get his/her “own rate” as currently
provided for in clause 11.3 of the exposure draft. That may be assumed where he/she is already
earning significantly more than the employees which he/she supervises. It may be observed
that the grade 5 and 6 classification apply to employees who are “in charge”: clauses 7.5 and
7.6. Indeed, the fact of being “in charge” is the essential element of that classification — if
they are not “in charge” then they fall within grades 3 or 4 — and therefore the additional
duties and responsibility which accompanies supervising other workers is clearly built into the
increase in wage. They should not also get the leading hand allowance; effectively, “double
dipping”.’
This interpretation is clearly supported by the drafting of the modern Silviculture Award 2010.
Furthermore, with respect the NFF contends that it is also the correct interpretation of clause 3
107 October 2017 decision, at para [382]
108 NFF, submission,24 November 2017
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of the pre-modern award which the Commission cites at clause [377] of the decision. In our
view the alternative pay rates under that clause were “the undermentioned amounts above the
rates of the highest classification supervised” or “his own rate”, whichever is higher. The
placement of the commas around “his own rate”, irrespective of whether it is grammatical
correct, supports this view.’109
[174] We do not agree with the submission of the NFF. We confirm our provisional view
that clause 11.3(b) of the exposure draft will be redrafted as set out above at [172].
Items 43, 45 and 46 – Shiftworkers and casual shiftworkers—Sunday rates
[175] In the October 2017 decision, we dealt with an issue relating to the absence of Sunday
rates for shiftworkers. We outlined our view that the award should contain Sunday rates for
shiftworkers and expressed a provisional view that the appropriate rate for full-time and part-
time shiftworkers working on a Sunday would be 200% of the ordinary hourly rate. We
expressed a provisional view 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.’
[176] The current clause 14.12(b) of the exposure draft would then would be re-numbered
14.12(c) with the following deletion made:
‘(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).’
[177] The tables contained in clauses A.2.3 and A.3.2 will be updated to include Sunday
rates for shiftworkers.
[178] Parties were provided an opportunity to comment on our provisional view and the
suggested wording. One submission in relation to the issue was received from the NFF,
stating that they did not oppose the Commission’s provisional view.110 We confirm our
provisional view outlined at [175]-[177] above. These changes will be made to the exposure
draft.
Item 44 – Overtime rates for casual employees
[179] In the October 2017 decision we dealt with an issue relating to whether casual
employees are entitled to overtime. 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:
109 Ibid, at 4-5
110 NFF, submission, 24 November 2017, at para 6
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‘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.’
[180] 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.
[181] The submissions from the parties were silent on this point but the NFF sought the
opportunity to comment on any inclusion of overtime rights for casuals in the table in Clause
A.3. We noted in the October 2017 decision that 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. If this were intended then the award would contain wording to that effect.
[182] We expressed a provisional view 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 included
tables reflecting this in the summary of hourly rates schedule in the exposure draft and parties
were provided a further opportunity to comment.
[183] One submission was received from the NFF, noting they accepted the Commission’s
provisional view that any casual loading would be cumulative with the overtime allowance,
but would not compound with the overtime allowance.111
[184] We confirm our provisional view outlined at [182] above. The tables in the summary
of hourly rates schedule will form part of the exposure draft.
2.10 Sugar Industry Award 2010
Item 23 – Hours of work – altering the spread of hours
[185] In our October 2017 decision, we dealt with an issue relating to altering the spread of
hours in the exposure draft. The parties agreed to delete clauses 11.3(c) and (d) and insert a
new clause 11.3(c) (see 3 June 2016 exposure draft).
[186] We noted that, in our view, the agreed position of the parties alters the operation of the
provision in the current award. Having considered the parties’ agreed position, we expressed a
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
111 Ibid, at item 44, para 1
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/exposure-draft-sugar-030616.pdf
[2018] FWCFB 1405
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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)
[187] Parties were invited to comment on the proposed amendment to clause 11.3(d). 3
submissions were received.
[188] Both the AWU and the Australian Manufacturing Workers’ Union (AMWU) note that
this is one of a group of awards containing similar ambiguous phraseology in relation to the
alteration of the spread of hours. The AMWU submit that the issue ‘should be considered at
the conclusion of the Award stage of the Review in accordance with the decision of the Full
Bench [2015] FWCFB 7236 at [159]’.112
[189] The AWU strongly oppose the proposed additional words ‘other than in accordance
with clause 11.3(c)’ as the AWU submits that it does not reflect the current provision in the
award.113 The AWU submits that the current provision makes overtime payable for work done
outside the spread of hours regardless of whether the spread has been altered by agreement.
The AWU further submits that the current provision is not ambiguous and that the change
would result in a reduction of the entitlement to overtime.
[190] The NFF makes no further submission on the issue.114
[191] We have considered the argument put by the AWU but find it unpersuasive. We see
little utility in the ability to alter the spread as provided in clause 29.3(c) if work done within
the agreed altered spread is to be paid at overtime rates. The clause enabling the spread of
hours to be altered, by agreement is intended to provide the flexibility of a longer span in
which to roster ordinary hours without having to pay overtime.
[192] We have decided to confirm our provisional view that 11.3(c) and 11.3(d) be retained
and our redrafted clause 11.3(d) will be inserted into the exposure draft. The remaining issue
of the potential ambiguity in clause 11.3 will be dealt with at the conclusion of the Award
stage of the Review.
Proposed variations not agreed between the parties
Item 11 – Facilitative Provisions
[193] In the October 2017 decision we noted that the AMWU had advised the Commission
that there is substantial agreement between the parties as to the list of provisions to be
112 AMWU, submission, 28 November 2017, at paras 4-5
113 AWU, submission, 28 November 2017, at paras 7-8
114 NFF, submission, 28 November 2017, at para 3
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014267-sub-nff-281117.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014247-sub-awu-281117.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014247-sub-amwu-281117.pdf
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included. Parties were afforded an opportunity to provide an agreed list of facilitative
provisions for clause 6 for the consideration of the Full Bench.115 In their submission dated
28 November 2017, the AMWU state that ‘the parties have been unable to confirm a written
record of the provisions consented to, due to the change in the officers with carriage of the
matters since July 2016. The AMWU propose that the list of facilitative provisions be
revisited to confirm what the respective positions of the parties are.116
[194] Clause 6 of the exposure draft contains the list of provisions that the Commission has
identified as facilitative provisions.
[195] Parties are directed to file their submissions on the facilitative provisions contained in
the exposure draft by 4:00pm Tuesday, 10 April 2018.
Item 21- Overtime and penalty rates – other than shiftworkers and Items 55, 55A and 55B –
Shiftwork
[196] In the October 2017 decision, we dealt with an issue relating to the correct Sunday rate
for field sector employees. The issue was set out at paragraphs [479] to [491] of the October
2017 decision.
[197] In that decision we expressed a provisional view that the existing definition of
‘shiftwork’ in clause 26.2(a) should not be amended. We noted that the current clause would
be retained, unless interested parties provided a persuasive submission as to why the
definition should be varied.
[198] We also set out a provisional view that we would abandon proposed clause 26.X and
adopt the AWU’s proposed amendment117 to clause 26.4 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.
(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.’
115 [2017] FWCFB 5536, at [474] – [476]
116 AMWU, submission, 28 November 2017, at para 7
117 AWU, submission, 21 July 2016, at para 10
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014247-sub-awu-210716.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014247-sub-amwu-281117.pdf
https://www.fwc.gov.au/documents/decisionssigned/html/2017fwcfb5536.htm
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/exposure-draft-sugar-revised-021117.pdf
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[199] We noted that the amendment would require further drafting. Parties were invited to
comment further on the proposed amendment to clause 26, in particular we requested that
parties submissions answer the following questions:
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 do not have equivalent entitlements to shift
workers as sugar milling?
[200] We have not received any submissions addressing the above questions. Parties are
directed to file submissions addressing the above questions by 4:00pm Tuesday,
10 April 2018.
Item 33 – Single contract hourly rate
[201] 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.
[202] The report of DP Asbury 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.’
[203] 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 submit 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
[2018] FWCFB 1405
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includes the 15% loading for all purposes,118 due to the operation of cl 13.2(b) which defines
the minimum hourly rate for employees engaged.119
[204] 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.’
[205] 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.’
[206] 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.120
[207] 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 Tuesday,
10 April 2018.
Item 45 - Allowances
[208] In our October 2017 decision we dealt with an issue relating to the rounding
associated with the conversion from imperial to metric measurements at clauses 16.1(f)(ii)
and 16.1(r) of the exposure draft. We proposed to round the figures, as follows: 510kg, 15
metres and 23 metres. Parties were provided an opportunity to comment on this proposal.
[209] The AWU submits that rounding the measurements is unnecessary as the unrounded
figures are not causing any confusion. The AWU were particularly opposed to the rounding of
the carting and/or handling allowance from 508 kilograms to 510 kilograms. The AWU
submit that 508 kilograms is already a round figure and do not see 510 kilogram as more
specific.
[210] The NFF supports the Commission’s proposed rounding figures.
118NFF, submission, 8 July 2016
119 Ibid
120 AWU, submissions, 21 July 2016, at para 18–21
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
[2018] FWCFB 1405
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[211] Upon further consideration we do not find it necessary to round the figures contained
in clauses 16.1(f)(ii) and (r) as the figures are rounded to the nearest kilogram and centimetre
and are sufficiently clear.
Item 42 – Tool allowance
[212] In our October 2017 decision we asked the AMWU to indicate whether it intended to
pursue a claim to insert a tool allowance into Sugar Industry Award 2010 (Sugar Award). In
their submission of 28 November 2017 the AMWU indicated that they would pursue the
claim,121 and in correspondence to the Commission dated 22 December 2017,122 the AMWU
requested this be referred to a separate Full Bench. The Full Bench constituted to hear the
substantive issues in the Sugar Award (AM2017/56) will hear and determine the proposed
insertion of the tool allowance.
2.11 Wine Industry Award 2010
[213] Following the October 2017 decision, a small number of issues remained outstanding
in relation to the Wine Industry Award 2010 (Wine Award), as outlined in the summary of
submissions document republished on 10 October 2017.
Items 25 and 30-32: ordinary hours of work
[214] Item 25 of the summary of submissions document deals with an issue relating to
ordinary hours of work and rostering (clauses 8.1 – 8.4 of the exposure draft). The summary
notes that a proposal relating to this item was agreed during the conferences held in relation to
the Wine Award. The exposure draft was subsequently updated and republished on 2
November 2017. Ai Group made the following submission on 24 November 2017:123
‘We are concerned that the renumbering of provisions under clause 8 has resulted in an anomaly
arising from the most recent version of the exposure draft. Specifically, it is our submission
that:
Clauses 8.2 – 8.5 apply to day workers and shiftworkers;
Clause 8.6 applies only to day workers; and
Clauses 8.7 – 8.9 apply to day workers and shiftworkers.
The text inserted at clause 8.1 does not reflect this position, which we understand to be
broadly agreed between interested parties who participated in the conferencing process before
Deputy President Clancy.’
[215] Clause 8 in the exposure draft currently states:
‘8 Ordinary hours of work and rostering
121 AMWU, submission, 28 November 2017
122 AMWU, correspondence, 22 December 2017
123 Ai Group, submission, 24 November 2017, at paras 8-9
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014231-249-sub-aig-241117.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201756-corrinreply-hsu-110118.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014247-sub-amwu-281117.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/exposure-draft-wine-revised-021117.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/wine-subs-summary-revised-101017.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/wine-subs-summary-revised-101017.pdf
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[2018] FWCFB 1405
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8.1 The following provisions in clause 8 apply to day workers and shift workers except
for clause 8.5
8.2 Maximum weekly hours and requests for flexible working arrangements are provided
for in the NES.
8.3 Subject to clause 8.7, the ordinary hours for a day worker or shiftworker are an
average of up to 38 per week.
8.4 Ordinary hours are to be worked continuously, except for meal breaks.
8.5 Ordinary hours must not exceed 10 hours on any day, except where there is agreement
between the employer and the majority of employees in the relevant workplace or section of it,
in which case the daily maximum may be extended to up to 12 hours.
8.6 Ordinary hours of work—day workers
(a) Ordinary hours are worked between the hours of 6.00 am and 6.00 pm, Monday to
Friday, subject to the following exceptions:
(i) ordinary hours for an employee rostered to perform work in the cellar
door may are to be worked between 6.00 am and 6.00 pm, Monday to
Friday, and 8.00 am and 6.00 pm on Saturday and Sunday; and
(ii) ordinary hours for an employee rostered to perform work in the
vineyard may are to be worked between 5.00 am and 6.00 pm,
Monday to Saturday, during the period of the vintage.
(b) Vineyard employees during the vintage
(i) For the purposes of this clause 8.6, vintage means a period not
exceeding six months between November and June inclusive, which
starts on the date when the harvest of wine grapes begins at a
particular vineyard and ends on the date the last wine grapes are
harvested at that vineyard.
(ii) The employer must make and retain a record of the beginning and end
of each vintage in conjunction with relevant time and wages records.
(iii) Where at the commencement of this provision an employer was
utilising the extended ordinary hours for vineyard employees under
the former clause 28.2(d) of this award, the terms of that provision
will apply until the commencement of the vintage as defined in clause
28.2(d)(ii) above.
(c) The spread of hours may be varied by agreement between an employer and the
majority of employees in the relevant workplace or the section or sections of it.
8.7 Methods of arranging ordinary working hours
The following provisions in clause 8 apply to day workers and shift workers except for clause
8.5 The method of working the 38 hour week must be agreed between the employer and the
[2018] FWCFB 1405
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majority of employees in the relevant workplace or section or sections of it and may be
worked in one of the following arrangements:
(a) 19 days of eight hours in each four week period, with either a fixed or rostered day
off;
(b) nine days of eight hours and one day of four hours in each fortnight with either a
fixed half-day off or a rostered half-day off at the beginning or end of the
working week;
(c) four days of eight hours and one day of six hours in each week, with the six hour
day being at the beginning or end of the working week; or
(d) any other arrangement agreed to by the employer and the majority of employees
directly affected.
8.8 Daylight saving
For work performed on a shift that spans the time when daylight saving begins or ends, as
prescribed by relevant state or territory legislation, an employee will be paid according to
adjusted time (i.e. the time on the clock at the beginning of work and the time on the clock at
the end of work).
8.9 Make-up time
(a) An employee may elect, with the consent of the employer, to work make-up time,
under which the employee takes times off during ordinary hours and works those
hours at a later time, during the spread of ordinary hours provided for in clause
8—Ordinary hours of work and rostering.
(b) On each occasion the employee elects to use this provision the resulting
agreement must be recorded in the time and wages records at the time when the
agreement is made.’
[216] The clause in the exposure draft that Ai Group take issue with is clause 8.1. In DP
Clancy’s Report to the Full Bench dated 25 August 2016, Attachment A outlines the
following:
‘Items 25 and 30-32. Parties agreed to the following words proposed by the AWU being
inserted at the start of Clause 8 and that these would resolve these four (4) items– “The
following provisions in clause 8 apply to day workers and shift workers except for clause
8.5”.’124
[217] These are the words that have been inserted into the exposure draft. No other party has
commented on Ai Groups submission. 125 If any other interested party agrees with Ai Group’s
submission that the wording at 8.1 of the exposure draft is not reflective of the agreed position
of the parties, they are to notify the Commission in writing no later than 27 March 2018. If
other interested parties are in agreement with Ai Group then clause 8 will be redrafted.
124 Report to the Full Bench, 25 August 2016, at p 3
125 Ai Group, submission, 24 November 2017
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014231-249-sub-aig-241117.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014249-report-250816.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014249-report-250816.pdf
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Item 31 – Daylight savings
[218] In relation to this issue, interested parties previously indicated that they may benefit
from further discussions about the AWU’s proposal to vary the clause. We noted in the
October 2017 decision that no further update had been provided to the Full bench about the
status of these discussions, and interested parties were afforded a further opportunity to
confirm whether this variation is being pursued and whether any agreement has been reached.
[219] No submission was received from the AWU regarding their proposal to vary the
clause. We do not propose to deal with their proposal further, however we note that this issue
may relate to the issue set out above concerning clause 8 of the exposure draft.
Item 53 – Overtime claim
[220] In the October 2017 decision we outlined that the substantive claim regarding
overtime is not agreed and noted that the parties have previously taken the view that
resolution of this issue depends on the outcomes in the Casual and Part-time employment
Common issue proceedings.
[221] In the October 2017 decision, we requested parties write to the Commission to
indicate whether they wish to pursue this item. No submission was received from any party
regarding this issue. We do not intend to deal with this matter further.
Item 62 – Public holidays
[222] In the October 2017 decision we stated the following in respect of this issue:126
‘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.
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 Award127 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.’128
126 [2017] FWCFB 5536, at paras [573]-[574]
127 [2017] FWCFB 3177
128 Ibid, at [76]-[78]
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[223] Interested parties were requested to write to the Commission to indicate whether they
wish to pursue this item and whether they consider further discussions may resolve the issue.
No submission was received.
[224] We will adopt the reasoning of the Full Bench in relation to the Manufacturing Award,
that is, the payment option of 7.6 hours of pay at the ordinary rate of pay.
Ai Group Submission relating to causal conversion
[225] In their 24 November 2017 submission, Ai Group note that items 17 – 24 of the
summary of submissions document remain outstanding as they were deferred pending the
outcome of the casual and part-time employment common issues proceedings.129 They note
that the relevant Full Bench has since issued its decision and has concluded that existing
casual conversion provisions will not be varied. Ai Group seek that the Commission now give
consideration to whether the current casual conversion clause has been properly redrafted
having regard to the various submissions made by interested parties.
[226] This is an issue in a number of awards currently containing a casual conversion clause.
The issue will be determined at the conclusion of the award stage.
[227] Interested parties are to advise whether there are any outstanding issues in respect of
this award by 4:00pm Tuesday, 10 April 2018.
2.12 Banking, Finance and Insurance Award 2010
[228] Following the July 2017 decision a revised version of the Banking, Finance and
Insurance Award 2010 exposure draft was published incorporating the changes that were
agreed to by the interested parties. Parties were afforded a final opportunity to comment on
the exposure draft.
[229] The only award-specific submission that was made concerning the revised exposure
draft was received from ABI.130 ABI responded to a question posed by the Commission at
clause 6.4(d) of the exposure draft, which asked parties to clarify whether the effect of the
clause is to exclude casual employees from entitlement to overtime, penalty rates and
allowances. Clause 6.4(d) of the exposure draft currently appears in the following manner:
‘The casual loading is paid instead of annual leave, personal/carer’s leave, notice of termination,
redundancy benefits and the other attributes of full-time or part-time employment.’131
[230] ABI confirmed its view that ‘the payment of the casual loading is in substitution for
overtime, penalty rates and other loadings.’132
129 Ai Group, submission, 24 November 2017
130 ABI, submission, 9 August 2017
131 Exposure Draft – Banking, Finance and Insurance Award 2015, republished 14 July 2017
132 ABI, submission, 9 August 2017 at paras 7-8
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[231] A Full Bench has been constituted in AM2017/51 to deal with this issue.
2.13 Business Equipment Award 2010
[232] Following the July 2017 decision a revised version of the Business Equipment Award
2010 exposure draft was published incorporating the changes that were agreed to by the
interested parties, as well as changes arising from our determination of outstanding issues.
Parties were then afforded a final opportunity to comment on the exposure draft. Submissions
were received from Ai Group,133 ABI134 and the Electrical Trades Union of Australia
(ETU).135
[233] Ai Group’s submission responded to a question posed by the Commission at clause
7.2(a) of the exposure draft, which asked parties to clarify whether the provision permitted the
spread of hours to only be altered at one end, or whether it permitted the spread of hours to be
altered at both ends by up to a total of two hours. The term in the exposure draft currently
reads:
‘(a) The following forms of flexibility may be implemented in respect of all employees in
a workplace or section/s thereof, subject to agreement between the employer and the
majority of the employees concerned in the workplace or relevant section/s.
Agreement in this respect may also be reached between the employer and an
individual employee:
(i) the spread of hours (i.e. 6.30 am to 6.30 pm) may be altered by up to one hour
at either end of the spread;’136
[234] Ai Group submitted that ‘the provision allows for the spread of hours to be altered by
up to one hour at one or both ends of the spread simultaneously.’137 ABI was of the same
view, and further submitted that ‘this interpretation applies where ‘either’ is also used in
respect of clause 15.2(b) in the Exposure Draft with regards to standard shift work.’138 The
ETU submitted that ‘The intention of the clause is that the spread of hours can be altered by
up to one hour total That [sic] is to say, the spread of hours cannot be 5:30am to [sic]
7:30pm.’139
[235] This is an issue that appears in a number of exposure drafts. As noted in the Full
Bench decision [2015] FWCFB 7236,140 this issue may have implications for other awards.
Accordingly we do not propose to determine this issue at this time. A separate Full Bench will
be constituted to deal with these issues.
133 Ai Group, submission, 2 August 2017
134 ABI, submission, 9 August 2017
135 ETU, submission, 28 July 2017
136 Exposure Draft – Business Equipment Award 2015, republished 17 July 2017
137 Ai Group, Submission, 2 August 2017, at para 20
138 ABI, submission, 9 August 2017, at para 9
139 ETU, submission, 28 July 2017, at para 13
140 See para [159]
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[236] Ai Group submitted that clause 7.8(b) should be deleted at it states that ‘Country
employees’ are defined in clause 17.6(a)’141, despite a definition of ‘country employees’ not
appearing anywhere in the exposure draft. AIG submitted that a definition of ‘country
employees’ is not necessary.142
[237] We agree with the submission of Ai Group. Clause 7.8(b) will be deleted from the
exposure draft.
2.14 Commercial Sales Award 2010
[238] Following the July 2017 decision a revised version of the Commercial Sales Award
2010 exposure draft was published incorporating the changes that were agreed to by the
interested parties. In response to the republished exposure draft, ABI submitted that, despite
the Commission having proposed to remove the words ‘in soliciting orders’ from clause 16.3,
the words are still present. 143 ABI submitted that following wording should appear at the
beginning of the clause:
‘All work done by an employee, other than travelling, at the request of the employer on a public
holiday…’144
[239] We agree with ABI, this is clearly an administrative error and will be rectified.
2.15 Coal Export Terminals Award 2010
[240] Following the July 2017 decision a revised version of the Coal Export Terminals
Award 2010 (Coal Award) exposure draft was published incorporating the changes that were
agreed to by the interested parties. Parties were afforded a final opportunity to comment on
the exposure draft. Submissions were subsequently received from the Coal Terminals Group
(CTG), 145 ETU146 and the Construction, Forestry, Mining and Energy Union, Mining and
Energy Division (CFMEU (M&E)).147
[241] CTG submitted that the title of the Coal Award should reflect the year in which the
award is to be made. The same submission was made in relation to the reference in clause 3.3
to the Port Authorities Award 2016.148 It appears that what CTG means by this submission is
that the awards should be titled such that the year 2017 (or 2018, as the case may be) appears
in the title of the award. The CFMEU (M&E) disagrees with the submission of CTG. The
CFMEU (M&E) submitted that, as the Commission is not going to ‘make’ new awards—and
141 Exposure Draft – Business Equipment Award 2015, republished 17 July 2017
142 Ai Group, submission, 2 August 2017, at para 21
143 ABI, submission, 9 August 2017
144 Ibid, at paras 10-11
145 CTG, submission, 28 July 2017
146 ETU, submission, 28 July 2017
147 CFMEU (M&E), submission, 25 August 2017
148 CTG, submission, 28 July 2017, at para 3(a)
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that the Commission has stated it will be varying the awards rather than superseding them—
the date in the award titles should remain as 2010.149
[242] Once the exposure draft process is finalised, the existing awards will be varied (rather
than superseded). To that extent, we agree with the submission of the CFMEU (M&E).
However, the award title will also be varied, and awards will be retitled with the year that the
variation occurs (i.e. 2018).
[243] CTG submitted that the references to clause 21.2 appearing in clauses 8.5(a)(ii),
8.5(b)(ii) and 8.5(c)(i) should be deleted. CTG submits that, as clause 21.2 deals with
consultation about changes to rosters rather than dispute resolution, its inclusion is
inappropriate.150 These submissions are supported by the CFMEU (M&E).151
[244] Clauses 8.5(a) and 8.5(b) of the exposure draft read as follows:
‘8.5 Rostering
(a) Rostering of hours and length of shifts
(i) The employer can determine the type of rosters to be worked.
(ii) The employer can determine the length of shifts to be worked up to a
maximum of 10 hours. Shifts of more than 10 ordinary hours can
only be implemented by agreement between the employer and the
majority of employees affected or, in the absence of agreement, as
resolved in accordance with clauses 21.2 and 22 of this award.
(b) Shift starting and finishing times
(i) The start and finish times of shifts up to 10 ordinary hours may be
determined by the employer.
(ii) Shifts in excess of 10 ordinary hours will be worked between the
starting and finishing times that are agreed between the employer
and the majority of employees affected or, in the absence of
agreement, as resolved in accordance with clauses 21.2 and 22 of
this award.
(c) Roster and shift changes
(i) Subject to clause 21.2, an employer may vary an employee’s days of
work or start and finish times to meet the needs of the business by
giving at least 48 hours’ notice. A shorter period can be agreed on
between the employer and individual employee.
(ii) Where an employee is performing shiftwork, the employer may
change shift rosters or require an employee to work a different shift
149 CFMEU (M&E), submission, 25 August 2017, at paras 1-3
150 CTG, submission, 28 July 2017, at para 3(b)
151CFMEU (M&E), submission, 25 August 2017, at para 10
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roster upon 48 hours’ notice. These time periods may be reduced
where agreed by the employer and the employee or at the direction
of the employer where operational circumstances require.
(iii) The employer must consult with directly affected employees about
any changes made under this clause in accordance with clause 21.2.
(iv) In the case of an emergency an employer may vary or suspend any
roster arrangement immediately, notwithstanding anything
elsewhere in clause 8.5.’ 152‘
[245] In relation to clauses 8.5(a)(ii) and b(ii) of the exposure draft, it is clear that the
reference in clause is meant to refer to the dispute resolution clause of the Coal Award only.
The exposure draft will be updated to include references to the dispute resolution clause, and
the reference to clause 21.2 will be removed.
[246] In relation to clause 8.5(c)(i) and (iii) of the exposure draft, the references to clause
21.2 do not appear to be incorrect, however they appear to be unnecessary and will therefore
be removed.
[247] CTG further submitted that, consistent with the amendment agreed to by CTG and the
CFMEU (M&E)—and reflected in the Report to the Full Bench dated 10 August 2016153—the
words ‘other than a shiftworker’ should be removed from clause 8.6(a) of the exposure
draft.154 This is supported by the CFMEU (M&E).155 This would result in the clause reading
‘All ordinary hours worked by an employee on the following days will be paid for at the
following rates:…’. We agree and will make the change proposed.
[248] The CFMEU (M&E) submitted that, consistent with the current Coal Award and the
consent position arrived at between the parties, references to ‘day workers’ appearing in
clause 8.3 should be amended to read ‘employees other than shiftworkers’.156 Clause 8.3 of
the exposure draft appears in the following terms:
‘Dayworkers may be required to work up to 10 ordinary hours per day, between 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.’157
[249] The current Coal Award differs from the exposure draft in that it refers to ‘employees,
other than shiftworkers’ and that the word ‘hours’ appears before ‘6.00 am’.158 We agree with
the CFMEU (M&E) submission and will vary the exposure draft accordingly.
152 Exposure Draft – Coal Export Terminals Award 2016, republished 14 July 2017
153 Report to the Full Bench, 10 August 2016
154 CTG, submission, 28 July 2017, at para 3(c)
155 CFMEU (M&E), submission, 25 August 2017, at para 8
156 CFMEU (M&E), submission, 25 August 2017, at paras 4-7
157 Exposure Draft – Coal Export Terminals Award 2016, republished 14 July 2017
158 Coal Export Terminals Award 2010, at cl.16.2(a)
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[250] Finally, CTG submitted that the reference in paragraph 13.3(b) of the exposure draft to
‘shiftwork rates in clause 8.4(b)’ should instead be to clause 8.4, and that the reference in
clause 14.4(b) of the exposure draft to ‘the rate in clause 8.6(a)’ should instead be to clause
8.6.159 These proposals are supported by the CFMEU (M&E).160 Clauses 8.4 and 8.6 of the
exposure draft relevantly provide:
‘8.4 Shiftwork
(a) Definitions
(i) Afternoon shift means any shift, the ordinary hours of which finish
after 7.00 pm and at or before midnight.
(ii) Night shift means any shift, the ordinary hours of which finish after
midnight and at or before 8.00 am.
(iii) Permanent night shift means a shift during a period which an
employee:
works night shift only;
stays on night shift for a longer period than four consecutive
weeks; or
works on a roster that does not give at least one third of the
employee’s working time off night shift in each roster cycle.
(b) Shiftwork rates
A shiftworker or continuous shiftworker will be paid the following
rates, on the following shifts:
% of minimum hourly rate
Afternoon shift 115
Night shift 115
Permanent night shift 125
…
8.6 Weekend and Public Holiday rates – All Employees
(a) All ordinary hours worked by an employee other than a shiftworker on the
following days will be paid for at the following rates:
Day Rate of pay
(% of minimum hourly rate)
Monday to Friday 100%
Saturday–First 4 hours 150%
Saturday–After 4 hours 200%
Sunday 200%
159 CTG, submission, 28 July 2017, at paras 3(d)-(e)
160 CFMEU (M&E), submission, 25 August 2017, at para 11
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Public Holiday 250%
(b) The rates in this clause are maximum rates, and are in substitution for and not
cumulative upon any other rate in this award (including shiftwork rates in
clause 8.4(b).’161
[251] We agree with the CTG’s proposal.
[252] In response to the question posed by the Commission at clause 10.2 of the exposure
draft (‘Parties are asked to clarify what the “applicable adult weekly wage” is for the purposes
of clause 10.2(b)’)162 both CTG and the CFMEU (M&E) refer to their previous
submissions.163 Both parties submitted that the applicable rate is ‘Maintenance Trades –
Competent Rate’.164 We agree.
2.16 Contract Call Centres Award 2010
[253] There are no outstanding issues in relation to this Contract Call Centres Award 2010.
2.17 Electrical Power Industry Award 2010
[254] Following the July 2017 decision we published a revised version of the Electrical
Power Award 2010 exposure draft, which incorporated the changes that were agreed to by the
interested parties. Those parties were then afforded a final opportunity to comment on the
exposure draft.
[255] The CFMEU (M&E) submits that, as the Commission is not making new awards, but
rather superseding existing awards, the date in the title and commencement clause should
remain ‘2010’ rather than be amended to read ‘2016’, and the commencement date should
remain 1 January 2010.165
[256] As noted at [255] above, the year the award is varied (i.e. 2018) will be the year that is
contained in the title of the awards.
[257] The Commission posed a question to interested parties, inviting them to clarify the
interaction between clauses 9.4 and 9.6 of the exposure draft. Those clauses are in the
following terms:
‘9.4 Work which is continuous with ordinary hours
(a) An employee who is required to work overtime for not less than two hours but
not more than four hours before or after working ordinary rostered hours will
receive a crib break of 20 minutes during that overtime which will count as
161 Exposure Draft – Coal Export Terminals Award 2016, republished 14 July 2017
162 Ibid
163 CTG, submission, 28 July 2017, at para 4; CFMEU (M&E), submission, 25 August 2017, at para 11
164 CFMEU (M&E), submission, 14 April 2016, at paras 18-20; CTG, submission, 19 April 2016, at paras 12-14
165 CFMEU (M&E), submission, 29 August 2017, at paras 1-2; CFMEU (M&E), submission, 25 August 2017, at paras 1-3
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time worked. A meal will be provided by the employer or a meal allowance
will be paid in accordance with clause 11.3(a).
(b) Where the overtime is to continue for more than four hours (and after each
subsequent four hours) the employee will receive a crib break of 20 minutes
which will count as time worked. A meal will be provided by the employer or
a meal allowance as per clause 9.4(a).
…
9.6 Rest breaks during overtime
(a) An employee may take a paid rest break of 20 minutes after each four hours of
overtime worked if the employee is required to continue to work after the rest
break.
(b) An employer and an employee may agree to any variation of this clause to
meet the circumstances of the workplace, provided that the employer is not
required to make any payment in excess of or less than what would otherwise
be required under this clause.
[258] The ETU submits that there is no overlap between the clauses, and that they should
therefore remain unaltered:
‘Clause 9.4 deals with paid meal breaks (‘crib break’) where employees have worked certain
number of hours. Clause 9.6 deals with employees’ entitlement to paid rest breaks for every
four hours of overtime worked.’166
[259] The position of the ETU is supported by the CFMEU (M&E) which submits that, as
clause 9.4 of the exposure draft deals with overtime that is continuous with ordinary hours
and clause 9.6 of the exposure draft deals with overtime more generally, the clauses
complement one another.167 No party made a contrary submission.
[260] We do not propose to amend the revised exposure draft.
[261] At clause 13 of the exposure draft, the Commission asked parties to clarify when
overtime is payable, and whether each day stands alone. The ETU submits that overtime is
payable when an employee works ‘beyond their ordinary hours of work’, ‘outside the agreed
number of hours’ or ‘outside the spread of ordinary hours’.168 The ETU also submits that ‘For
the purpose of calculating overtime, each day stands alone.’169 This position is supported by
the CFMEU (M&E).170
[262] We propose to vary the exposure draft to clarify that for the purpose of calculating
overtime each day stands alone.
166 ETU, submission, 28 July 2017, at paras 2-3
167 CFMEU (M&E), submission, 29 August 2017, at paras 3-4
168 ETU, submission, 28 July 2017, at para 4
169 Ibid, at para 5
170 CFMEU (M&E), submission, 29 August 2017, at para 7
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[263] The Commission posed a question to the parties, concerning the interaction of clauses
10.7(b) and 14.3(a), in the following terms:
‘Parties are asked to clarify the interaction of clauses 14.3(a) and 10.7(b). Clause 10.7(b) does
not state that the higher duties must resume after the period of leave.’
[264] Clauses 14.3(a) and 10.7(b) of the exposure draft relevantly provide as follows:
‘10.7 Higher duties
(a) An employee directed by the employer to carry out the duties of a position
classified at a higher pay level for a continuous period of not less than four
hours will be paid for the day at the minimum rate for the higher pay level.
(b) Where an employee has performed higher duties for three months
continuously prior to a period of annual leave, personal/carer’s leave or a
period attracting accident pay, the leave or accident pay will be based on the
employee’s higher duties rate.
14.3 Additional monetary entitlements
(a) An employee receiving an allowance on a continuous basis will continue to
receive the allowance on all annual leave, subject to, in the case of higher
duties allowance in clause 10.7, the employee resuming higher duties on
completion of the leave.’171
[265] The ETU submits that there is not, and should not be, a requirement for the higher
duties to be ongoing following a period of annual leave.172 This position is supported by the
CFMEU (M&E).173 No party made a contrary submission.
[266] We do not propose varying the exposure draft.
[267] At clause 14.9 of the exposure draft, the Commission asked interested parties to clarify
two aspects of the clause’s operation. Firstly, parties were asked to ‘clarify whether an
employee will only be paid out accrued annual [original emphasis] leave under clause 14.9.’
Parties were also asked to ‘clarify whether the term ‘shift allowance’ should be replaced with
‘shift penalty’ in clause 14.9 given the Full Bench comments at [363] to [379] of
[2017] FWCFB 3433.’ Clause 14.9 of the exposure draft provides the following:
‘Upon termination of employment for any reason, an employee will be paid out accrued leave at
the ordinary rate of pay applicable to the employee on the date when the employment
terminated provided that, if the employee is a shiftworker, the employee will also be paid shift
allowance and/or Saturday or Sunday penalty rates according to the employee’s roster or
projected roster.’174
171 Exposure Draft – Electrical Power Industry Award 2016, republished 14 July 2017
172 ETU, submission, 28 July 2017, at para 6
173 CFMEU (M&E), submission, 29 August 2017, at para 6
174 Exposure Draft – Electrical Power Industry Award 2016, republished 14 July 2017
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https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014218andors-sub-etu-280717.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/exposure-draft-electrical-power-revised.pdf
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[268] The ETU supports replacing the term ‘shift allowance’ with ‘shift penalty’.175 The
ETU also submits that, as employees may be entitled to other accrued forms of leave (such as
RDOs and long service leave), the term ‘annual’ should not be inserted.176 Conversely, the
CFMEU (M&E) submits the following:
‘The CFMEU understand clause 14.9 to be confined to addressing the payment of annual leave
upon termination. This is because it is part of the annual leave provision and the reference to
payment of shift/weekend penalties are relevant to the payment of annual leave for shift
workers. As such clause 14.9 does no address other forms of leave where an entitlement to
payment upon termination may exist. It is for that reason the CFMEU did not have an issue
with the term annual being included in clause 14.9, as it was essentially a term of
clarification.’177
[269] We propose to replace the term ‘shift allowance’ with ‘shift penalty.’ We propose to
insert ‘annual’ to clause 14.9, for the reasons advanced by the CFMEU (M&E).
2.19 Higher Education Industry–Academic Staff–Award 2010
[270] In the July 2017 decision, we directed the NTEU to respond to the Go8 submission
that the outstanding public holiday substitution issue should be dealt with by this Full
Bench.178 In response, the NTEU directed our attention to its submissions on this matter of
8 June 2016,179 and requested that the issue be dealt with by this Full Bench.180
[271] This issue is similar to the issue dealt with at paras [24] to [37] of this decision, in
relation to the General Staff Award.
[272] In their submission of 8 June 2016, the NTEU submit the following:
‘It is long established practice that many universities schedule teaching and related activities on
some public holidays, and treat these as ordinary working days for the purpose of setting the
academic calendar for staff and students. 20.2 reflects this practice, and the quid-pro-quo that
the parties in the industry have settled on: a substitute day which itself will be treated as a
public holiday for the purposes of matters such as the taking of leave and the payment of
penalty rates.
The question arises whether this established practice is consistent with the NES.
The NES (s. 114) commences with an employee’s entitlement to take off public holidays but
that entitlement is immediately qualified by an employer right to request that the employee
work on a public holiday, a request which can only be refused by the employee if the request
is unreasonable. Factors which are relevant to reasonableness relate not only to the operational
requirements of the employer, but to the personal circumstances and particular nature of work
performed by the employee.
175 ETU, submission, 28 July 2017, at para 7
176 Ibid, at para 9
177 CFMEU (M&E),submission, 29 August 2017, at para 25
178 [2017] FWCFB 3433 at [57]
179 NTEU, submission, 8 June 2016
180 NTEU, submission, 28 July 2017
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In the absence of clause 20.2, it is likely that the practice of universities to require staff to
work on public holidays as a matter of course would generally be considered “reasonable”.
However in order to be consistent with the NES, it seems likely that
(a) the employer would need to pay penalty rates for staff who work on those days,
rather than deferring that entitlement to another date (for example, what would be the
entitlement of a person who ceased employment before the substituted day came
around?);
(b) the employer would need to be open to reasonable requests from staff not to work
on those days, having regard to personal circumstances including family
responsibilities; and
(c) the request to work on the public holiday should be directed only to those staff
where the nature of the work they perform is relevant to the capacity of the institution
to perform its business on that day.
S. 115(3) allows for substitution arrangements to be provided for in a modern award, but on
the basis of agreement between an employer and an employee, rather than as a blanket, non-
negotiable provision. The combination of the words “subject to the provisions of this clause”
and the words of clause 20.2 therefore appear to be inconsistent with the provisions of the
NES on public holidays.
A better approach would be to delete the words “subject to the provisions of this clause” from
20.1, and to amend the first line of 20.2(a) to read “An employer and an employee may agree
to substitute…’ 181
[273] The AHEIA notes in their submission of 15 April 2016 that ‘we would be opposed to
removing the industry-specific wording that reflects the practice in the sector of substituting
public holidays, especially over the Christmas close-down period.’182
[274] We note that the issue raised by the NTEU also arises in a number of other modern
awards, including the:
General Retail Industry Award 2010;
Manufacturing and Associated Industries and Occupations Award 2010; and
Mining Industry Award 2010.
[275] As the determination of the issue in the context of Higher Education Industry–
Academic Staff–Award 2010 (Academic Staff Award) may have implications for other awards
we do not propose to deal with the issue in this decision. This issue will be the subject of a
Statement by the President shortly.
[276] There are no further award specific matters concerning the Academic Staff Award.
181 NTEU, submission, 8 June 2016, at pp 3-4
182 AHEIA, submission, 15 April 2016, at p 2
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2.19 Higher Education Industry–General Staff–Award 2010
[277] In the July 2017 decision, we directed the NTEU to respond to the Go8 submission
that the outstanding public holiday substitution issue should be dealt with by this Full
Bench.183 In response, the NTEU directed our attention to their submissions on this matter of
8 June 2016,184 and requested that the issue be dealt with by this Full Bench.185
[278] The Commission asked the parties to comment on ‘whether the penalty payable on a
public holiday should be included in clause 15 or 20 for the purposes of clause 9.2(b)(v).’ In
response, the AHEIA submitted that ‘clauses 9.2(v) and 16.1 deal adequately [sic] with
penalty rates payable on public holidays and it is not necessary to amend either Clause 15 of
Clause 20 to also refer to these rates.’186 Similarly, Go8 submitted that ‘it would be
unnecessary to include any reference to the public holiday penalty rate in either clause 15 or
clause 20 given it is already dealt with in both clause 9.2(b)(v) and clause 16.1.’187
[279] Additionally, Go8 submits that, in light of the decision in [2017] FWCFB 3433, the
term ‘shift loading’ as it appears in clause 9.2(b)(iv) of the exposure draft should be amended
to read ‘shift penalty’.188
[280] We agree with the Go8 submission and will amend clause 9.2(b)(iv) of the exposure
draft to delete ‘shift loading’ and insert ‘shift penalty’.
[281] At clause 17.5 of the exposure draft, the Commission asked the parties whether
‘Australian Statistician’s average’ should instead read ‘Australian Bureau of Statistics’
average full-time’. Go8 submitted that the phrase should be changed, in order to reflect the
biannual publication of ABS figures. Go8 also noted that the same issue arises in respect of
the Higher Education–Academic Staff–Award. No other party has commented on the
proposed change.
[282] We will amend clause 17.5 in the Exposure Draft to delete ‘Australian Statistician’s
average’ and insert ‘Australian Bureau of Statistics’ average full-time. The amendment has
also been made to the relevant clause of the Academic Staff Award Exposure Draft.
[283] At clause 20 of the exposure draft, the Commission asked parties to comment on:
whether clause 20.3 is inconsistent with the NES (taking into account the Full Bench
decision [2014] FWCFB 9412); and
whether the words ‘subject to the provisions of this clause’ appearing in clause 20.1
should be deleted.
183 [2017] FWCFB 3433, at [57]
184 NTEU, submission, 8 June 2016
185 NTEU, submission, 28 July 2017
186 AHEIA, submission, 4 August 2017
187 Go8, submission, 4 August 2017, at p 1
188 Go8, submission, 4 August 2017, p1
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https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014229-sub-nteu-280717.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/am2014224andors-corr-nteu-080616.pdf
https://www.fwc.gov.au/documents/decisionssigned/html/2017fwcfb3433.htm
http://www.fwc.gov.au/decisionssigned/html/2017fwcfb3433.htm
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[284] In respect of the former, both the AMWU and Go8 submitted that the clause is
inconsistent with the NES.189 That clause in the exposure draft currently reads as follows:
‘20.3 Effect on payment for holidays
Where an employee is absent from their employment on the working day before or the
working day after a public holiday without reasonable excuse or without the consent
of the employer, they will not be entitled to payment for the holiday.’190
[285] In respect of the latter, both the AMWU and Go8 agree that the words ‘subject to the
provisions of this clause’ in clause 20.1 of the exposure draft can be removed, so that the
clause would read ‘The entitlement to public holidays is set out in the NES.’191 We agree and
will make the necessary change.
[286] Pursuant to the Full Bench decision in [2014] FWCFB 9412 (at para [107]), we
propose to delete clause 20.3 from the exposure draft. Clause 33.3 of the current award will
also be deleted and a determination will be issued shortly.
[287] In Schedule C of the exposure draft, the Commission asked the parties whether the top
leading hand allowance should be for ‘more than 20 employees’, as per the Higher Education
Workers Victoria Award 2005 [AP844616]. The modern award currently provides differing
levels of payment for 3–10 employees, 11–20 employees, and 20 or more employees. 192 The
AMWU, Go8 and AHEIA agreed that the top leading hand allowance should be for ‘more
than 20 employees’. The exposure draft will be amended accordingly.
2.20 Labour Market Assistance Industry Award 2010
[288] Following the July 2017 decision a revised version of the Labour Market Assistance
Industry Award 2010 exposure draft was published incorporating the changes that were
agreed to by the interested parties. The parties were then afforded a final opportunity to
comment on the exposure draft. ABI was the only party to make such a submission.
[289] Clauses 11.2(a) and 14.1(b) of the exposure draft have been redrafted by staff at the
Commission in order to clarify when overtime payments apply with regard to excursions.
Parties were invited to comment on the redrafted clauses, which now appear in the following
terms:
‘11.2 Wage related allowances
…
(b) Where an employee is required to supervise clients in excursion activities
involving overnight stays away from home, the employee will be entitled to
payment of a sleepover allowances of $62.10 for every night. This allowance
189 Go8, submission, 4 August 2017, at p 2; AMWU, submission, 4 August, at para 4
190 Exposure Draft – Higher Education–General Staff– Award 2015, republished 17 July 2017
191 Go8, submission, 4 August 2017, at p 2; AMWU, submission, 4 August, at para 6; AHEIA, submission, 4 August 2017
192 Go8, submission, 4 August 2017, at p 2; AMWU, submission, 4 August, at para 3
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https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014229-230-sub-aheia-40816.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014230-sub-amwu-040817.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014229-230-sub-g8u-040817.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/exposure-draft-higher-education-general-revised.pdf
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is paid in addition to the employee’s ordinary hourly rate of pay inclusive of
any penalties or loadings.’
…
14.1 Entitlements to payment for overtime
…
(b) Full-time employees
(i) A full-time employee will be entitled to overtime where the employee
works more than 152 hours in any 28 day period or where the
employee works outside the spread of ordinary hours provided for in
clause 8.2.
(ii) A full-time employee will be entitled to overtime where they work in
excess of their prescribed hours of duty.’193
[290] ABI submitted that it agrees to the proposed redrafting of clause 14.1(b) of the
exposure draft ‘as it reflects the position of the parties contained in the Joint Report filed on
25 July 2016.’194 ABI also agree to the proposed redrafting of clause 11.2(b) of the exposure
draft, but submits that the words ‘which is’ should be inserted after the words ‘employee’s
ordinary hourly rate of pay’.195 We agree with ABI’s proposed change and will amend the
exposure draft accordingly.
[291] ABI submit that clause 20.2 of the exposure draft—which provides that ‘An employee
who works on a public holiday will be paid at 250% of the minimum hourly rate for all time
worked’— should be amended so that it instead reads as follows:
‘Payment for working on public holiday is provided for in clause 14.2(c).’196
[292] ABI submit that having the entitlement in two places will cause confusion.197
Furthermore, ABI support the Commission’s redrafting of clause 14.2(c) of the exposure
draft,198 which has been redrafted in order to clarify the applicable penalty rates for ordinary
hours and outside the span of ordinary hours, in a manner consistent with the Plain Language
Guidelines. We agree with ABI’s proposed change and will amend the exposure draft
accordingly.
2.21 Ports, Harbours and Enclosed Water Vessels Award 2010
[293] Following the July 2017 decision a revised version of the Ports, Harbours and
Enclosed Water Vessels Award 2010 exposure draft was published incorporating the changes
193 Exposure Draft – Labour Market Assistance Industry Award 2015, republished 18 July 2017
194 ABI, submission, 9 August 2017, para 13
195 Ibid, at para 13
196 Ibid, at para 15
197 Ibid
198 Ibid, at para 14
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that were agreed to by the interested parties. The parties were then afforded a final
opportunity to comment on the exposure draft. The MUA was the only party to make such a
submission.
[294] In relation to the casual conversion clause, the MUA submits that the model clause
should be adopted without change, as there are ‘no special provisions…that warrant a
departure from the model clause.’199
[295] We propose to incorporate the model clause in the revised exposure draft.
[296] In response to the Commission’s request that parties comment on whether
clause 6.5(b)(i) of the exposure draft requires amendment the MUA submitted that, as
overtime and shift allowances are not incorporated into the casual loading, amending
clause 6.5(b)(i) is unnecessary.200 No party made a contrary submission. We agree with the
MUA’s position.
[297] In response to the Commission’s request that parties comment on which rates apply to
shift work on weekends, the MUA submitted that ‘Shiftwork on weekends should be paid at
the Saturday rate.’201 We propose to convene a further conference of interested parties to
discuss the matter further.
2.22 State Government Agencies Award 2010
[298] Following the July 2017 decision a revised version of the State Government Agencies
Award 2010 exposure draft was published incorporating the changes that were agreed to by
the interested parties. The parties were afforded a final opportunity to comment on the
exposure draft.
[299] In the revised version of the Exposure Draft the Commission queried whether payment
for excess travelling time, as provided for in clause 11.3(e) of the exposure draft, is paid at the
minimum rate or the applicable penalty rate.
[300] Clause 11.3(e) of the exposure draft reads as follows:
‘(e) Excess travelling time
(i) An employee who is directed to work temporarily at a location other than their
normal place of employment may, subject to the following provisions, be
granted time off during normal hours of duty in respect of any period of
excess travelling time so incurred, or must be reimbursed at the ordinary rate
of pay (calculated to the nearest quarter hour) for time reasonably spent in
travelling to and from the place of residence and the designated place of work
outside normal working hours (in excess of the time normally spent in
travelling from the place of residence to the usual place of work and return).
199 MUA, submission, 4 August 2017, p1
200 Ibid
201 MUA, submission, 4 August 2017, at p 1
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(ii) Provided that a journey involving excess travelling time of less than 30
minutes daily must not be taken into account and it will be granted only to
employees whose salary does not exceed that prescribed for the highest
subdivision of Administrative Officer Grade 6—Level C.’202
[301] The CPSU (VIC) submitted the following:
‘The clause provides an entitlement to payment (or time in lieu) for excess travel time "outside
normal working hours". The employee must be granted "time off during normal hours of duty"
or "be reimbursed at the ordinary rate of pay". Payment is therefore not at the penalty rate but
at the employee's ordinary hourly rate.’203
[302] We accept the submission advanced by the CPSU, no change will be made to the draft.
3. Next Steps
Educational Services (Post-Secondary Education) Award 2010
[303] Parties are invited to comment on our provisional view that the exposure draft be
amended in the manner proposed by the NTEU (see [60]). Parties are directed to provide
comments by no later than 4.00pm on Tuesday, 10 April 2018.
Educational Services (Schools) General Staff Award 2010
[304] Parties are invited to further comment on the submission made by AIS and IEU that
the percentage in clause 17.3(b)(i) (relating to annual leave loadings and exceptions) be
amended (see [97]). Parties are directed to provide comments by no later than 4.00pm
Tuesday, 27 March 2018.
Horticulture Award 2010
[305] The AWU must advise by no later than 4.00pm on Tuesday, 10 April 2018 if it
wishes to pursue the issue as a substantive variation (see [121]).
[306] The NFF is asked to confirm whether or not it presses the proposed variation in
respect of defining the full and base rate of pay for pieceworkers for the purpose of
calculating NES entitlement (see [124]). Comments are due by no later than 4.00pm on
Tuesday, 10 April 2018.
[307] Interested parties are invited to comment on Ai Group’s suggestion that the definition
of ‘ordinary hourly rate’ be amended (see [127]). Comments are due by no later than 4.00pm
on Tuesday, 10 April 2018.
202 Exposure Draft – State Government Agencies Award 2015, republished 14 July 2017
203 CPSU (VIC), submission, 4 August 2017, at p 1
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Sugar Industry Award 2010
[308] Parties are directed to file their submissions on the facilitative provisions contained in
the exposure draft by no later than 4.00pm on Tuesday, 10 April 2018.
[309] In respect of the Full Bench’s proposal to amend the table of rates and insert a new
clause 13.2(d), parties are to provide any objections to this proposal by no later than 4.00pm
on Tuesday, 10 April 2018.
Wine Industry Award 2010
[310] Interested parties are to advise whether there are any outstanding issues in respect of
the Wine Award by no later than 4.00pm on Tuesday, 10 April 2018.
[311] All submissions in respect to all of the above directions are to be sent to
amod@fwc.gov.au
PRESIDENT
Appearances:
Z Duncalfe, Australian Workers Union
B Rogers, National Farmers Federation
Hearing details:
Pastoral Award 2010
9 February 2017
Sydney
Final written submissions:
David Tulloh, 29 November 2017
Australian Business Industrial and NSW Business Chamber, 24 November 2017
mailto:amod@fwc.gov.au
[2018] FWCFB 1405
66
National Tertiary Education Industry Union, 22 November 2017
Independent Education Union of Australia and Associations of Independent Schools, 24
November 2017
Australian Industry Group, 24 November 2017
National Farmers' Federation, 24 November 2017
Australian Federation of Employers and Industries, 24 November 2017
Russell Kennedy and Others, 24 November 2017
Australian Workers' Union, 6 March 2018
CFMEU - Mining and Energy Division, 29 August 2017
Printed by authority of the Commonwealth Government Printer
PR601012
[2018] FWCFB 1405
67
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
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https://www.fwc.gov.au/awards-and-agreements/modern-award-reviews/4-yearly-review/award-stage/award-review-documents/MA000052?m=AM2014/241
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https://www.fwc.gov.au/awards-and-agreements/modern-award-reviews/4-yearly-review/award-stage/award-review-documents/MA000051?m=AM2014/240
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https://www.fwc.gov.au/awards-and-agreements/modern-award-reviews/4-yearly-review/award-stage/award-review-documents/MA000050?m=AM2014/235
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https://www.fwc.gov.au/awards-and-agreements/modern-award-reviews/4-yearly-review/award-stage/award-review-documents/MA000085?m=AM2014/223
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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
[2018] FWCFB 1405
68
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
