1
Fair Work Act 2009
s.156 - 4 yearly review of modern awards
4 yearly review of modern awards—Award stage—Group 4
awards
(AM2014/250 and others)
JUSTICE ROSS, PRESIDENT
VICE PRESIDENT CATANZARITI
DEPUTY PRESIDENT GOSTENCNIK
COMMISSIONER LEE
COMMISSIONER CIRKOVIC MELBOURNE, 21 MARCH 2018
4 yearly review of modern awards – award stage – exposure drafts – Group 4 awards –
technical and drafting matters – substantive matters.
CONTENTS
Paragraph
1. Introduction [1]
1.1 Review of Group 4 awards [3]
2. Review of Group 4 awards
2.1 Aboriginal Community Controlled Health Services Award 2010 [9]
2.2 Aged Care Award 2010 [33]
2.3 Air Pilots Award 2010 [43]
2.4 Aircraft Cabin Crew Award 2010 [68]
2.5 Airline Operations–Ground Staff Award 2010 [80]
2.6 Airport Employees Award 2010 [116]
2.7 Amusement, Events and Recreation Award 2010 [168]
2.8 Architects Award 2010 [199]
[2018] FWCFB 1548 [Note: a correction has been issued to this document]
DECISION
E AUSTRALIA FairWork Commission
https://www.fwc.gov.au/documents/decisionssigned/html/2018FWCFB1548_PR601954.htm
[2018] FWCFB 1548
2
Paragraph
2.9 Book Industry Award 2010 [210]
2.10 Building and Construction General On-site Award 2010; [232]
Joinery and Building Trades Award 2010; and
Mobile Crane Hiring Award 2010
2.11 Broadcasting and Recorded Entertainment Award 2010 [234]
2.12 Car Parking Award 2010 [297]
2.13 Cemetery Industry Award 2010 [304]
2.14 Children’s Services Award 2010 [314]
2.15 Dry Cleaning and Laundry Industry Award 2010 [335]
2.16 Educational Services (Teachers) Award 2010 [375]
2.17 Electrical, Electronic and Communications Contracting Award 2010 [383]
2.18 Fast Food Industry Award 2010; [395]
General Retail Industry Award 2010;
Hair and Beauty Industry Award 2010;
Hospitality Industry (General) Award 2010; and
Restaurant Industry Award 2010
2.19 Food, Beverage and Tobacco Manufacturing Award 2010 [397]
2.20 Funeral Industry Award 2010 [422]
2.21 Hydrocarbons Field Geologists Award 2010 [503]
2.22 Journalists Published Media Award 2010 [511]
2.23 Live Performance Award 2010 [522]
2.24 Mannequins and Models Award 2010 [541]
2.25 Pest Control Industry Award 2010 [549]
2.26 Plumbing and Fire Sprinklers Award 2010 [583]
2.27 Professional Employees Award 2010 [603]
[2018] FWCFB 1548
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Paragraph
2.28 Racing Clubs Events Award 2010 [643]
2.29 Registered and Licensed Clubs Award 2010 [653]
2.30 Social, Community, Home Care and Disability Services Industry
Award 2010
[656]
2.31 Supported Employment Services Award 2010 [685]
2.32 Surveying Award 2010 [708]
2.33 Travelling Shows Award 2010 [739]
2.34 Water Industry Award 2010 [747]
3. Other matters
3.1 Facilitative provisions [756]
3.2 Annual leave loading [760]
3.3 Overtime for casuals [763]
4. Next steps [765]
Attachment A—List of Group 4 awards Attachment A
Attachment B— Dry Cleaning and Laundry Industry Award 2010 research
Attachment B
Attachment C—Travelling Shows Award 2010 research
Attachment C
[2018] FWCFB 1548
4
ABBREVIATIONS
5 July 2017 decision [2017] FWCFB 3541
6 July 2017 decision [2017] FWCFB 3433
AAAA Aerial Application Association of Australia
ABI Australian Business Industrial and New South Wales
Business Chamber
Aboriginal Community Health
Award
Aboriginal Community Controlled Health Services Award
2010
ACA Australia Childcare Alliance
ACAA Association of Consulting Architects- Australia
ACTU Australian Council of Trade Unions
ADG Australia Directors Guild
AFAP Australian Federation of Air Pilots
AFEI Australian Federation of Employers and Industries
Aged Care Award Aged Care Award 2010
Ai Group Australian Industry Group
AIRC Australian Industrial Relations Commission
Air Pilots Award Air Pilots Award 2010
Aircraft Cabin Crew Award Aircraft Cabin Crew Award 2010
Airline Operations Award Airline Operations–Ground Staff Award 2010
Airport Employees Award Airport Employees Award 2010
Amusement Award Amusement, Events and Recreation Award 2010
AMWU “Automotive, Food, Metals, Engineering, Printing and
Kindred Industries Union” known as the Australian
Manufacturing Workers’ Union
ANMF Australian Nursing and Midwifery Federation
APESMA Association of Professional Engineers, Scientists and
Managers, Australia
Architects Award Architects Award 2010
ASU Australian Services Union
ATSIHWs Aboriginal and Torres Strait Islander Health Workers
AWU Australian Workers’ Union
Book Industry Award Book Industry Award 2010
Broadcasting Award Broadcasting and Recorded Entertainment Award 2010
Business SA South Australian Employers’ Chamber of Commerce and
Industry Inc trading as Business SA
CAI Clubs Australia Industrial
Car Parking Award Car Parking Award 2010
CCSA Community Corrections Solutions Australia
Cemetery Industry Award Cemetery Industry Award 2010
https://www.fwc.gov.au/documents/decisionssigned/html/2017fwcfb3433.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2017fwcfb3541.htm
[2018] FWCFB 1548
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CEPU Communications, Electrical, Electronic, Energy,
Information, Postal, Plumbing and Allied Services Union
of Australia
CFMEU Construction, Forestry, Mining and Energy Union
Children’s Award Children’s Services Award 2010
Clerks Award Clerks—Private Sector Award 2010
Clubs Award Registered and Licensed Clubs Award 2010
Commission Fair Work Commission
CPI Consumer price index
CplusC CplusC Architectural Workshop
CPSU Community and Public Sector Union
CRA Commercial Radio Australia
DECD Department of Education & Child Development
December 2014 decision [2014] FWCFB 9412
Dry Cleaning Award Dry Cleaning and Laundry Industry Award 2010
Electrical Contracting Award Electrical, Electronic and Communications Contracting
Award 2010
Fair Work Act Fair Work Act 2009 (Cth)
Food Manufacturing Award Food, Beverage and Tobacco Manufacturing Award 2010
FPAA Fire Protection Association Australia
Funeral Award Funeral Industry Award 2010
FWO Fair Work Ombudsman
G8 Education G8 Education Ltd
Health Professional Award Health Professionals and Support Services Award 2010
HSU Health Services Union of Australia
Hydrocarbons Award Hydrocarbons Field Geologists Award 2010
IEU Independent Education Union
Journalists Award Journalists Published Media Award 2010
July 2015 decision [2015] FWCFB 4658
LPA Australian Entertainment Industry Association trading as
Live Performance Australia
Live Performance Award Live Performance Award 2010
Mannequins Award Mannequins and Models Award 2010
March decision [2018] FWCFB 1405
Market and Social Research
Award
Market and Social Research Award 2010
MEA Master Electricians Australia
MEAA Media Entertainment and Arts Alliance
MPG Master Plumbers Group
NAPSA Notional Agreement Preserving State Award
https://www.fwc.gov.au/documents/decisionssigned/html/2018fwcfb1405.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2015FWCFB4658.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2014fwcfb9412.htm
[2018] FWCFB 1548
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NATSIHWA National Aboriginal and Torres Strait Islander Health
Worker Association
NDS National Disability Services
NECA National Electrical & Communications Association
NECA–SA National Electrical & Communications Association- South
Australia
NES National Employment Standards
NFIA National Fire Industry Authority
News Ltd News Limited, Bauer Media and Pacific Magazines
October decision [2017] FWCFB 5536
Pest Control Award Pest Control Industry Award 2010
Plumbing Award Plumbing and Fire Sprinklers Award 2010
Professional Employees Award Professional Employees Award 2010
Qantas Qantas Group
Racing Clubs Award Racing Clubs Events Award 2010
Review 4 yearly review of modern awards under s. 156 of the Fair
Work Act 2009
SCHCDSI Award Social, Community, Home Care and Disability Services
Industry Award 2010
September 2015 decision [2015] FWCFB 6656
Seven Network Seven Network (Operations) Limited, Nine Network Pty
Limited and Network Ten Pty Ltd
SGA Showmen’s Guild of Australasia
Support Employment Award Supported Employment Services Award 2010
Surveying Award Surveying Award 2010
TCFUA Textile, Clothing and Footwear Union of Australia
Teachers Award Educational Services (Teachers) Award 2010
Travelling Shows Award Travelling Shows Award 2010
TWU Transport Workers’ Union of Australia
UV United Voice
Victorian Funeral Award Funeral Industry Award 2003
Water Award Water Industry Award 2010
https://www.fwc.gov.au/documents/decisionssigned/html/2015fwcfb6656.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2017fwcfb5536.htm
[2018] FWCFB 1548
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1. Introduction
[1] Section 156 of the Fair Work Act 2009 (the Fair Work Act) requires the Fair Work
Commission (the Commission) to review all modern awards every four years (the Review).
In the Award stage of the Review the 122 modern awards have been divided into 4 groups.
This decision deals with the technical and drafting issues arising out of the awards in
Group 4.1 This decision also addresses a number of substantive issues that have arisen during
the course of proceedings about the Group 4 awards. The awards allocated to Group 4 are
listed at Attachment A to this decision, and are divided into give subgroups (4A–4E).
[2] This decision should be read in conjunction with earlier decisions and statements
concerning the Review, and in particular the decisions of 23 December 20142 (December
2014 decision), 13 July 20153 (July 2015 decision) and 30 September 20154 (September 2015
decision) and the Group 3 Decisions5 in which the Commission dealt with a number of
general drafting and technical issues common to multiple exposure drafts.
1.1 Review of Group 4 awards
[3] The Commission published exposure drafts of the Group 4A–C awards between May
and June 2016 and Group 4D–E in November 2016. The exposure drafts were published
concurrently with comparison documents showing the changes made to the structure and
language in the award. Interested parties were given an opportunity to make written
submissions on the exposure drafts and to reply to the submissions of others. At the request
of the interested parties, further conferences were held to deal with a range of award-specific
matters prior to hearings before the Full Bench.
[4] A hearing was held before the Full Bench on 6 December 2016 to deal with the
technical and drafting issues which have been identified in relation to the Group 4 exposure
drafts. The purpose of the hearing was:
to confirm published summaries of submissions were accurate and reflected the
position of the interested parties;
to identify any submissions or variations which are now agreed or have been
withdrawn; and
to identify any matters which were of a substantive nature and had not yet been
referred to a specially constituted Full Bench.
[5] Further conferences were conducted by individual Members and a number of
substantive matters were referred to separately constituted Full Benches for determination.
1 See also [2015] FWC 7253; [2015] FWC 618; [2014] FWC 8985; [2014] FWC 8575
2 [2014] FWCFB 9412
3 [2015] FWCFB 4658
4 [2015] FWCFB 6656
5 [2017] FWCFB 3433; [2017] FWCFB 5536; [2018] FWCFB 1405
https://www.fwc.gov.au/documents/decisionssigned/html/2018fwcfb1405.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2017fwcfb5536.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2017fwcfb3433.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2015fwcfb6656.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2015FWCFB4658.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2014fwcfb9412.htm
https://www.fwc.gov.au/decisionssigned/html/2014FWC8575.htm
https://www.fwc.gov.au/decisionssigned/html/2014FWC8985.htm
https://www.fwc.gov.au/decisionssigned/html/2015FWC618.htm
https://www.fwc.gov.au/decisionssigned/html/2015FWC7253.htm
[2018] FWCFB 1548
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[6] A separately constituted Full Bench has considered the technical and drafting issues
and the substantive issues in the Building and Construction General On-site Award 2010,6
the Joinery and Building Trades Award 20107 and the Mobile Crane Hiring Award 20108 and
the substantive issues in the Plumbing and Fire Sprinklers Award 20109 (Construction
Group). It only remains for this Full Bench to review the technical and drafting issues in the
Plumbing and Fire Sprinklers Award 2010. These issues are dealt with at [232] and [583].
[7] The technical and drafting issues in Group 4 awards, along with a number of changes
sought by interested parties (other than substantive changes requiring extensive evidence) are
dealt with in this decision. Where interested parties have reached an agreed position, we have
generally determined in favour of the agreed position, save where it is inconsistent with
earlier Full Bench decisions, including earlier award stage decisions, common issues
decisions and established plain language drafting principles.
[8] We now turn to each award under review in turn.
2. Awards under review
2.1 Aboriginal Community Controlled Health Services Award 2010
[9] On 17 May 2016, the Commission published an initial exposure draft based on the
Aboriginal Community Controlled Health Services Award 201010 (Aboriginal Community
Health Award) together with a comparison document showing the changes made to the
structure and language in the award. Interested parties were provided with an opportunity to
file written submissions and submissions in reply on the substantive and technical and
drafting issues in the exposure draft. Submissions were received from the following parties:
Health Service Union of Australia (HSU);
United Voice (UV);
National Aboriginal and Torres Strait Islander Health Worker Association
(NATSIHWA); and
Australian Business Industrial and the New South Wales Business Chamber (ABI)
[10] A draft report was published on 20 February 2017 setting out the matters dealt with at
a conference held on 8 February 2017. A number of issues were resolved at the conference.
Updated draft reports were published on 19 April, 9 May and 21 June 2017. A revised
exposure draft along with a revised summary of submissions was published on 24 May 2017.
The draft report of 21 June 2017 called for further comments. A further revised exposure
draft and summary of submissions in relation to the substantive issues was published on
18 July 2017.
6 MA000020
7 MA000029
8 MA000032
9 MA000036
10 MA000115
https://www.fwc.gov.au/documents/documents/modern_awards/award/ma000115/default.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000036/default.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000032/default.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000029/default.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000020/default.htm
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014250-summary-substantive-issues-180717.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/exposure-draft-aboriginal-health-services-furtherrevised.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/exposure-draft-aboriginal-health-services-furtherrevised.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014250-draftreport-210617.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/aboriginal-health-summary-technical-drafting-revised-240517.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014-250-draft-report-conf-200217.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/comparison-aboriginal-health-services.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/exposure-draft-aboriginal-health-services.pdf
[2018] FWCFB 1548
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[11] A final Report to the Full Bench was published on 4 September 2017. Updated
summaries of submissions were published for the technical and drafting matters and the
substantive issues on 20 November 2017. It is apparent that a number of technical and
drafting matters and substantive issues have been resolved amongst the interested parties. We
will adopt the agreed variations set out in the Report and the exposure draft will be updated
accordingly.
[12] There are a number of matters that remained unresolved and these are set out below.
Technical and drafting matters
Item 13 – Ordinary hours of work
[13] Item 13 of the revised summary of submissions relates to the wording of clause 13.2
of the exposure draft which states:
‘13.2 No more than 10 ordinary hours of work (exclusive of meal breaks) may be worked in
any one day.’
[14] In submissions dated 30 June 2016,11 the HSU submitted that the change of words in
clause 13.2 of the exposure draft alters the existing award entitlement. It is submitted that the
clause, as it currently stands, says an employee cannot work more than ten ordinary hours in a
day. The HSU submitted that if an employee worked in excess of ten hours, it would lead to
overtime even if they are rostered for a longer shift12 and the HSU submitted that the word
‘may’ is less imperative that the expression ‘are to be’ in the current award.13 The HSU
submitted that, if the wording is required to be changed, it should read:14
‘13.2 No more than 10 ordinary hours of work (exclusive of meal breaks) can be worked in any
one day.’
(emphasis added)
[15] The Australian Federation of Employers and Industries (AFEI) did not oppose the
wording proposed by the HSU.15
[16] We have decided to make the change to the exposure draft to reflect the wording
proposed as it provides clarity as to when overtime is payable.
11 HSU, submission, 30 June 2016
12 HSU, submission, 30 June 2016
13 HSU, submission, 30 June 2016 Note: The current Award states at clause 20 2: Not more than 10 ordinary hours of work
(exclusive of meal breaks) are to be worked in any one day (emphasis added)
14 HSU, submission, 30 June 2016
15 AFEI, submission, 24 April 2017
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014250-sub-afei-210417-amended.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014250-sub-hsu-300616.pdf
https://www.fwc.gov.au/documents/documents/modern_awards/award/ma000115/ma000115-25.htm#TopOfPage
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014250-sub-hsu-300616.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014250-sub-hsu-300616.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014250-sub-hsu-300616.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/aboriginal-health-summary-technical-drafting-revised-240517.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/aboriginal-summary-substantive-issues-201117.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/aboriginal-health-summary-technical-drafting-201117.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014250-report-040917.pdf
[2018] FWCFB 1548
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[17] In submissions dated 30 June 2016, the HSU further submitted that the heading ‘Span
of hours’ should be reinstated at clause 13.3 of the exposure draft.16 The HSU submitted that
the ‘span of hours’ is referred to in clause 19.1(a)(ii) and Schedule B of the exposure draft.17
Those attending the conference on 8 February 2017 did not oppose the reinstatement of the
heading and it was confirmed at the hearing that the exposure draft will be amended to rectify
the error.18
Substantive issues
Item S2 – Education and training
[18] Item S2 of the summary of submissions relates to the education and training of
Aboriginal and Torres Strait Islander Health Workers (ATSIHWs). In submissions dated
6 March 2015, NATSIHWA submits that ATSIHWs play a vital role in the provision of
accessible and culturally relevant health services to Australia’s indigenous population and
that these employees are often not remunerated or trained at a level commensurate with the
tasks they are required to perform.19 NATSIHWA submitted that Aboriginal Community
Health Award should be amended to incentivise ATSIHWs participation in ongoing further
education and training.20 NATSIHWA submitted a re-drafted version of Schedule A.21
[19] AFEI responded to the draft and expressed concern about the phrasing proposed by
NATSIHWA because it could create uncertainty for employers.
[20] We agree that the amendments proposed by NATSIHWA would be a substantive
change to the Aboriginal Community Health Award. If NATSIHWA wishes to pursue the
proposed change as a substantive variation it may do so in accordance with the process set
out, see Next steps below.
Item S3 – Coverage
[21] Item S3 is the NATSIHWA proposal to expand the coverage of the Aboriginal
Community Health Award to include Aboriginal and Torres Strait Islander health workers.
The proposal was not opposed by the unions; but was opposed by AFEI and ABI. The
objections are based on concerns that the change may create an overlap in coverage because
health workers who are not employed by an aboriginal community health organisations may
already be covered by another modern award, for example, the Health Professionals and
Support Services Award 201022 (Health Professionals Award).
16 HSU submission, 30 June 2016
17 HSU submission, 30 June 2016
18 Transcript, 8 February 2017 at PN347–349
19 NATSIHWA submission, 6 March 2015
20 NATSIHWA submission, 6 March 2015
21 NATSIHWA draft determination, 1 December 2016
22 MA000027
https://www.fwc.gov.au/documents/documents/modern_awards/award/ma000027/default.htm
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014250-corr-natsihwa-011216.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014250-sub-natsihwa-060315.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014250-sub-natsihwa-060315.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/08022017-am2014250.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014250-sub-hsu-300616.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014250-sub-hsu-300616.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014250-summary-substantive-issues-180717.pdf
[2018] FWCFB 1548
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[22] The Commission wrote to interested parties on 8 September 2017 to seek clarification
about how the terminology change agreed to under item S1 could be adopted in light of the
objections raised to item S3.23
[23] NATSIHWA responded by confirming that the title and coverage of the Aboriginal
Community Health Award should not be varied pending the outcome of the substantive claim
to vary coverage.24 It also clarified which instances of the word ‘Aboriginal’ should be
substituted with ‘Aboriginal and/or Torres Strait Islander’.
[24] The exposure draft will be varied to substitute ‘Aboriginal’ with ‘Aboriginal and/or
Torres Strait Islander’ as per the NATSIHWA’s submission. No other variations will be made
to the title or coverage, pending determination of the substantive matter. When the exposure
draft is updated, interested parties will be invited to comment on whether the substitutions
have been incorporated accurately. Further directions about Item S3 are set out in the Next
steps below.
Item S6 – Minimum wages
[25] Item S6 is a proposed amendment to the minimum wages structure. The interested
parties have not reached an agreed position on whether to vary the wage structure and the
applicable rates for each classification. In the absence of agreement we do not intend to vary
the wage structure in the exposure draft.
Items S7, S8 and S9 – Allowances
[26] Items S7, S8 and S9 list proposed additions to the allowances clause. In Item S7 the
proposal regarding damaged clothing allowance, blood check allowance, telephone allowance
and nauseous work allowance was agreed between the interested parties. However, the
interested parties have not agreed to the proposed occasional interpreting allowance, heat
allowance or medication administration allowance. None of the allowances suggested in S8
and S9 have been agreed to.
[27] It appears that NATSIHWA has generally sought to replicate the allowances currently
appearing in the Health Professionals Award. It is not clear on what basis some allowances
have been agreed to and others have not. In the absence of agreement between the interested
parties we do not intend to include the additional allowances mentioned in items S7, S8 or
S9.
Items S17A and S18 – Ceremonial leave
[28] Items S17A and S18 concern variations to the ceremonial leave provisions. The
variations are opposed by the ABI and AFEI. The current exposure draft clause is:
23 Fair Work Commission correspondence, 8 September 2017
24 NATSIHWA correspondence, 20 September 2017
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014250-corr-natsihwa-200917.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/am2014250-corr-fwc-080917.pdf
[2018] FWCFB 1548
12
‘26. Ceremonial leave
An employee who is legitimately required by indigenous tradition to be absent from work for
Aboriginal or Torres Strait Islander ceremonial purposes will be entitled to up to 10 working
days unpaid leave in any one year, with the approval of the employer.’
[29] The variation proposed by NATSIHWA is:
‘An employee who is legitimately required by indigenous tradition to be absent from work for
Aboriginal or Torres Strait Islander ceremonial purposes, including for bereavement related
ceremonies and obligations, will be entitled to up to 10 working days unpaid leave in any one
year, with the approval of the employer.’
[30] In correspondence dated 26 April 2017, ABI advised that they did not oppose the
variation sought to the ceremonial leave provision.25 At the subsequent conference ABI’s
representative advised that ABI opposed the variation.26 The Commission wrote to interested
parties on 8 September 2017 to seek clarification about whether the variation was opposed or
supported.27 ABI subsequently confirmed that they oppose the variation.28
[31] In the absence of any agreement between the interested parties, the variation will not
be made to the exposure draft. If the variation is sought, it must be pursued as a substantive
variation, see Next steps below.
[32] There are no other outstanding issues for this Full Bench to determine with regards to
the Aboriginal Community Health Award.
2.2 Aged Care Award 2010
[33] An exposure draft based on the Aged Care Award 201029 (Aged Care Award) was
published on 19 May 2016. A summary of submissions about technical and drafting matters
was subsequently published on 30 November 2016. An initial hearing was held on
6 December 2016 to discuss the submissions received. Australian Industry Group (Ai Group),
the HSU, AFEI, Leading Aged Services Australia Limited, Aged and Community Services,
Australian Nursing and Midwifery Federation (ANMF) and South Australian Employers’
Chamber of Commerce and Industry Inc trading as Business SA (Business SA) appeared at
the Hearing.
[34] A number of matters were resolved at the initial hearing. The outstanding matters
were subject of consideration at further conferences. Commissioner Lee issued a Final Report
to the Full Bench about the Aged Care Award on 17 March 2017. A revised exposure draft
was republished on 10 July 2017.
25 ABI correspondence, 26 April 2017
26 Transcript, 1 June 2017 at PN2171
27 Fair Work Commission correspondence, 8 September 2017
28 ABI correspondence, 20 September 2017
29 MA000018
https://www.fwc.gov.au/documents/documents/modern_awards/award/ma000018/default.htm
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014250-corr-abi-200917.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/am2014250-corr-fwc-080917.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/010617-am2014250.htm
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014250-sub-abinswbc-260417.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/exposure-draft-aged-care-further-revised.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014251-finalreport-170317.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/aged-care-summary-technical-drafting.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/exposure-draft-aged-care.pdf
[2018] FWCFB 1548
13
[35] Updated summaries of submissions were published for the technical and drafting
matters and the substantive issues on 20 November 2017. A further Report about the
substantive matters was issued on 8 December 2017. We are satisfied that it is appropriate to
make the changes agreed to by the interested parties, as outlined in the Reports.
[36] There remain a number of unresolved issues for determination.
Item 21 – Sleepovers
[37] Item 21 regarding sleepovers remains unresolved. The HSU or Ai Group can make
further submissions about the wording of the clause if either wish to pursue the matter, see
the Next steps below.
Item 47 – Shiftwork
[38] Item 47 regarding shiftwork terminology has been considered in the first Group 3
decision and the exposure draft will be updated according to the Group 3 Full Bench’s view.
A number of terminology issues have also been referred to the Plain Language process for
further consideration.
Items 50–52 – Rest period after overtime
[39] Items 50–52 were discussed further at a conference on 6 February 2017. The
interested parties agreed to vary the exposure draft as by reverting back to the current award
wording subject to some drafting amendments:
‘22.4 Rest period after overtime
(a) An employee, other than a casual, who works so much overtime between the
termination of their ordinary work on any day or shift and the commencement
of their ordinary work on the next day or shift, that they have not had at least
10 consecutive hours off duty between those times, will be released after
completion of such overtime until they have had 10 consecutive hours off
duty without loss of pay for rostered ordinary hours occurring during such
absence.
(b) If on the instructions of the employer, such an employee resumes or continues
work without having had 10 consecutive hours off duty, they will be paid
200% of the ordinary hourly rate until they are released from duty for such
rest period and they will then be entitled to be absent until they have had 10
consecutive hours off duty without loss of pay for rostered ordinary hours
occurring during such absence.’
[40] The exposure draft will be varied as per the re-drafted clause 22.4 above.
[41] The substantive matters in this award will be referred to a separate Full Bench to
consider and determine.
[42] There are no other outstanding issues for this Full Bench to determine with regards to
the Aged Care Award.
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014251report-081217.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/aged-care-summary-substantive-issues-201117.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/aged-care-summary-technical-drafting-revised-201117.pdf
[2018] FWCFB 1548
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2.3 Air Pilots Award 2010
[43] On 2 June 2016 the Commission published an initial exposure draft based on the Air
Pilots Award 201030 (Air Pilots Award) together with a comparison document showing
changes made to the structure and drafting of the Award. Interested parties were invited to
file written submissions and submissions in reply on technical and drafting issues in the
exposure draft.
[44] Submissions were received from the following parties:
Aerial Application Association of Australia (AAAA);
Australian Federation of Air Pilots (AFAP);
The Australian Industry Group (Ai Group); and
Qantas Group (Qantas).
[45] A conference was held on 9 February 2017 at which the interested parties advised that
a number of technical and drafting issues had been withdrawn or agreed.31 A further
conference was held on 17 August 201732 and a further revised exposure draft was published
on 7 September 2017 incorporating changes agreed by the parties.
[46] A final report was published on 7 December 2017 summarising the status of these
issues. We are satisfied that it is appropriate to implement the changes agreed to by the
interested parties as outlined in the report.
[47] A number of technical and drafting items remain outstanding and require
determination or clarification.
Technical and drafting issues
Item 12 – Probation
[48] The Commission asked the interested parties if the last sentence of clause 8.2 of the
exposure draft should be retained:
‘8.2 At the time of engagement an employer will inform each pilot of the terms of their
engagement and in particular whether they are to be full-time, part-time or casual. The
employer will also advise the pilot about the duration of any probation period, which will
not be greater than six months.’
(emphasis added)
[49] The AFAP submitted the sentence should remain. Qantas submitted the sentence
should be deleted, but noted that it would not oppose its retention.
30 MA000046
31 Transcript, 9 February 2017
32 Transcript, 17 August 2017
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/170817_am2014252.htm
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/09022017-am2014253.pdf
https://www.fwc.gov.au/documents/documents/modern_awards/award/ma000046/default.htm
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014252-report-sums-fwc-071217.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/exposure-draft-air-pilots-revised-070917.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/comparison-air-pilots.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/exposure-draft-air-pilots.pdf
[2018] FWCFB 1548
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[50] The concept of ‘probation’ was considered in a previous Full Bench decision in
relation to the Mining Industry Award 2010.33 The Full Bench expressed the following
provisional view:
‘[139] In the Exposure Draft the Commission posed the question to the parties as to whether
there is any requirement to include a clause in relation to Probation given the current
legislative provisions. While Ai Group did not consider there was any inconsistency with the
Act in the retention of such a clause and that “Probationary periods remain an important and
relevant management tool” no party provide strong grounds for its retention. We express a
provisional view that the provision will be deleted.’34
(emphasis added)
[51] There has been no concluded view expressed about whether the inclusion of a
probationary period is in fact inconsistent with legislative entitlements and obligations. In our
view, the inclusion of probation periods may create ambiguity or uncertainty about an
employee’s eligibility to dispute a dismissal and an employer’s capacity to object to such an
application. On that basis, the exposure draft will be updated to remove the reference to a
probation period as follows:
8.2 At the time of engagement an employer will inform each pilot of the terms of their
engagement and in particular whether they are to be full-time, part-time or casual.
Item 13 – Casual employment
[52] In correspondence dated 5 September 2017, Qantas on behalf of AFAP and Ai Group
advised item 13 was agreed and no changes to the Exposure Draft were required. On that
basis, no change will be made to the exposure draft.
Item 34 – Summary of hourly rates of pay and Summary of monetary allowances
[53] AFAP submitted that the table in clause E.2.1 of the exposure draft should be varied
to include the applicable “additions to salary” for casuals.35 AFAP provided a draft table for
comment. At a conference, Qantas confirmed that it did not oppose the AFAP’s variation, 36
however it indicated in written correspondence that it does not consider it a necessary
change.37 Ai Group concurred with Qantas that the variation proposed by AFAP is not
necessary. Ai Group further submitted that “Schedule E and F are to be read in conjunction
with the substantive terms of the instrument, including Schedule A” and submitted that it was
“concerned that the insertion of numerous notes or references may result in a schedule that is
confusing and unwieldly”.38
[54] The term “addition to salary” is a defined term in the current award and exposure draft
and is defined as “a payment in addition to the pilot’s minimum salary, which is regarded as
33 MA000011
34 [2015] FWCFB 7236 at [139]
35 AFAP submission, 3 March 2017
36 Transcript, 17 August 2017 at PN46
37 Qantas Submission, 21 July 2016
38 Ai Group Submissions, 22 July 2016, at para 81
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014251-andors-replysub-aig-250716.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014252-replysub-qg-210716.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/170817_am2014252.htm
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014252-sub-afap-030317.pdf
https://www.fwc.gov.au/documents/decisionssigned/html/2015fwcfb7236.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000011/default.htm
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014252-corr-qantas-050917.pdf
[2018] FWCFB 1548
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salary for all purposes as if part of salary, other than the payment of commission for aerial
application operations.”
[55] Additions to salary are set out in the exposure draft at Schedule A (in relation to
Airlines/General Aviation employees), Schedule B (in relation to Regional Airline
employees), Schedule C (Sector Specific Conditions – Aerial Application Operations) and
Schedule D (Sector Specific Conditions – Helicopter Operations).
[56] The variation sought by the AFAP relates only to Airlines/General Aviation casual
employees, as set out in Schedule A. Casual employment is described at clause 9 of the
exposure draft. Clauses 9.2 and 9.3 of the exposure draft state that:
‘9.2 A casual pilot will be paid per flying hour at the rate of 1/800th of the annual salary
prescribed for the class of work performed (including additions to salary).
9.3 A casual pilot will be paid an amount of 25% for each hour in addition to the amount
in clause 9.2. This loading is instead of entitlements to leave and other matters from
which casuals are excluded by the terms of this award and the NES.’
[57] AFAP has not provided specific submissions in support of its proposed variation. It is
unclear why the variation is sought in relation to Schedule A only - to the exclusion of
Schedules B, C and D.
[58] The issue of additions to salary is a complex one. We agree with the submissions of
Ai Group that the insertion as sought by the AFAP may result in a schedule that is confusing
and excessively lengthy. The “additions to salary” which are prescribed in Schedule A are
also found at Schedule F expressed as per annum amounts.
[59] We have decided to refuse the variation as sought. However, while we do not agree to
the insertion of a new table at clause E.2.1, as proposed by the AFAP, we propose providing
the parties with the opportunity to consider whether the issue of hourly rates of pay for casual
employees (inclusive of any additions to salary) may be dealt with by way of an example
within the Air Pilots Award. A similar approach has been adopted in clause 7.2 of the
exposure draft for the Educational Services (Schools) General Staff Award.39
[60] The parties are invited to consider whether an example would provide clarity
regarding the calculation of hourly rates for casual employees under the award. The following
example has been prepared for consideration by the interested parties:
Example – Casual hourly rate for casual airlines/general aviation employees
Emma is a casual pilot paid an hourly rate derived from the minimum salaries in Schedule A of the
award.
The annual salary for a full-time pilot under the classification of Captain, Multi engine 3360 kg
UTBNI 5660 kg is $50,960.
39 Educational Services (Schools) General Staff Award 2015, Exposure Draft, republished 2 November 2017
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/exposure-draft-educational-services-general-021117.pdf
[2018] FWCFB 1548
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Emma is entitled to an addition to salary under clause A.1.3 of $1481.28 per annum.
The formula to calculate her hourly casual rate under clause 9.2 and 9.3 of the award is:
(Annual salary + annual applicable addition to salary) divided by 800 = hourly rate
Hourly rate x casual loading = casual hourly rate
Calculating Emma’s casual hourly rate:
Step 1: (annual salary + annual applicable addition to salary) = $52,441.28
Step 2: $52,441.28 / 800 = $65.55 per hour (hourly rate)
Step 3: $65.55 x 1.25 = $81.94 per hour (casual hourly rate)
Emma’s casual hourly rate of pay is $81.94* per hour.
*Emma’s actual rate of pay may differ based on other allowances that may be payable under the Air
Pilots Award.
[61] Comments on the example provided should be provided by 19 April 2018, see the
Next steps below.
Item 37 – Consumer price index figure
[62] In the exposure draft, the Commission raised a question about whether the applicable
consumer price index (CPI) figure in clause D.6.6(c)(i) should be included in clause F.3.1(b).
[63] AFAP did not oppose the inclusion of the CPI figure.40 Ai Group advised that it did
not seek to advance a position on this item.41
[64] In the absence of any objection, the exposure draft will be varied to include the
“Domestic holiday travel and accommodation sub-group” in the CPI table.
Substantive matters
[65] In its correspondence dated 5 September 2017, Qantas on behalf of the AFAP and
Ai Group advised item S3 was agreed and no changes to the Exposure Draft were required.
[66] Two substantive matters, items S1 and S2, remain outstanding and will require
consideration by a separate Full Bench.
[67] There are no other matters for this Full Bench to determine with regards to the Air
Pilots Award.
40 Transcript, 9 February 2017 at PN127
41 Ai Group correspondence, 20 November 2017
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014252-sub-aig-201117.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/09022017-am2014253.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014252-corr-qantas-050917.pdf
[2018] FWCFB 1548
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2.4 Aircraft Cabin Crew Award 2010
[68] An exposure draft based on the Aircraft Cabin Crew Award 201042 (Aircraft Cabin
Crew Award) was published on 1 June 2016, accompanied by a comparison document
showing the structural and drafting changes made. Submissions relating to technical and
drafting issues in the exposure draft were received from Qantas and Ai Group.
[69] An updated exposure draft was published on 5 January 2017. Conferences were held
before Deputy President Gostencnik on 9 February 2017 and 17 August 2017.43 At the
9 February conference, the interested parties advised a number of issues had been agreed or
withdrawn.
[70] At the 17 August conference, Qantas advised the only outstanding issue was item 9.
Ai Group was requested on the transcript to advise the Commission by 8 September if it had
a contrary view in relation to the status of item 9.
[71] An updated summary of submissions was published for the technical and drafting
matters on 23 August 2017. An updated summary of substantive matters was published on 13
November 2017.
[72] A final report was published on 7 December 2017 summarising the status of each
item.
[73] We agree that the technical and drafting changes agreed by the interested parties
should be made.
[74] There is one remaining technical and drafting matter item that requires determination
by this Full Bench.
Technical and drafting matter
Item 9 – Annual leave
[75] Ai Group raised concerns regarding the practical application of the annual leave
model clauses in the Aircraft Cabin Crew Award.44 Qantas confirmed its position at a
conference in August 2017 by reference to inter-party communications.45 Ai Group
subsequently confirmed its agreement with the Qantas position.46
[76] Qantas is directed to provide the Commission with a copy of its draft so that the
exposure draft can be updated according to the agreed position, see the Next steps below.
42 MA000047
43 Transcript, 9 February 2017; Transcript, 17 August 2017
44 Ai Group correspondence, 8 December 2016
45 Transcript, 17 August 2017 at PN77–82
46 Ai Group correspondence, 20 November 2017
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014253-corr-aig-201117.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/170817_am2014252.htm
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201447andors-corr-aig-081216.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/170817_am2014252.htm
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/09022017-am2014253.pdf
https://www.fwc.gov.au/documents/documents/modern_awards/award/ma000047/default.htm
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014253-report-sums-071217.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014253-cabin-crew-summary-substantive-issues-131117.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014253-summary-technical-drafting-further-revised-230817.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/exposure-draft-aircraft-cabin-revised-050117.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/comparison-aircraft-cabin.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/exposure-draft-aircraft-cabin.pdf
[2018] FWCFB 1548
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[77] The exposure draft will be updated and republished. Interested parties will have a
further opportunity to comment. The updated exposure draft will incorporate Qantas’
proposal in respect to Item 9 – Annual leave, but that should not be taken as indicating our
view in respect of this issue.
Substantive issues
[78] All of the substantive matters remain outstanding and would need to be considered by
a separate Full Bench. Interested parties are directed to advise the Commission about whether
they intend to pursue these substantive matters by 19 April 2018, see the Next steps below.
[79] There are no other outstanding issues for this Full Bench to determine with regards to
the Aircraft Cabin Crew Award.
2.5 Airline Operations—Ground Staff Award 2010
[80] An exposure draft based on the Airline Operations—Ground Staff Award 201047
(Airline Operations Award) was published on 2 June 2016, accompanied by a comparison
document showing the structural and drafting changes made. Submissions relating to
technical and drafting issues in the exposure draft were received from the following parties:
Transport Workers’ Union of Australia (TWU);
Qantas;
The Australian Workers’ Union (AWU);
The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries
Union” known as the Australian Manufacturing Workers’ Union (AMWU);
Australian Services Union (ASU); and
Ai Group.
[81] A hearing was held on 6 December 2016 in Sydney. A revised exposure draft was
published on 4 January 2017. A conference was held on 2 February 2017 in Sydney. At the
conference the parties advised a number of items had been agreed or withdrawn. Ai Group
requested further time to hold discussions with a view to resolving the outstanding issues or
narrowing the scope of any contest between the interested parties.48
[82] A draft report summarising the technical and drafting issues was published on
5 October 2017. Interested parties were invited to comment on the accuracy of the report and
advise of any outstanding items that required determination. A final report was subsequently
published on 14 November 2017. An updated summary of submissions was published on
23 November 2017.
[83] Items that were agreed between the interested parties will be adopted and the relevant
changes made to the revised exposure draft. There remain a number of outstanding items to
be determined.
47 MA000048
48 Ai Group correspondence, 13 April 2017
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014254-corr-aig-130417.pdf
https://www.fwc.gov.au/documents/documents/modern_awards/award/ma000048/default.htm
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/airline-ground-staff-summary-technical-drafting-231117.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014254-report-141117.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014254-draftreport-051017.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/exposure-draft-airline-operations-revised.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/comparison-airline-operations.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/exposure-draft-airline-operations.pdf
[2018] FWCFB 1548
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Technical and Drafting matters
Item 8 – Part-time day workers
[84] AWU submitted that cross-referencing clauses 7.4 and 15.1 in clause 10.2(b) of the
exposure draft does not accurately reflect the operation of those clauses because clause 7.4 is
only a list of facilitative provisions.49
[85] The AMWU submitted the following draft variation to clause 10.2 of the exposure
draft:50
‘10.2 Part-time day workers
(a) At the time of engagement or appointment of an employee as a day worker, the
employer and the part-time employee will agree in writing on a regular pattern of
work, specifying:
(i) the guaranteed minimum number of ordinary hours to be worked per week;
or
(ii) which days of the week the employee will work and the actual starting and
finishing times each day.
(b) Changes in hours to a written agreement made under clause 10.2(a)(i) above,
Subject to the employer’s rights in clauses 7.4 and 15.1 to change an employee’s
hours of work, changes in hours may only be made by agreement in writing
between the employer and employee, subject to the employer’s rights in clauses
7.4 and 15.1. Subject to clause 31, changes in days can be made by the employer
giving one week’s notice in advance of the changed hours.
(c) Changes in hours to a written agreement made under 10.2(a)(ii) above, may only
be made by agreement in writing between the employer and the employee,
subject to the employer’ rights in clauses 7.4 and 14.2(c).
(d) All time worked in excess of the ordinary daily hours mutually arranged will be
overtime and paid for at the appropriate overtime rate.’
[86] Ai Group and Qantas oppose the AWU and the AMWU’s submissions on the basis
that the exposure draft reflects the current award clause. The reference to clause 7.4 is said to
be relevant because it provides a summary list of the facilitative provisions which can be
utilised upon agreement between the employer and a majority of employees in the workplace
or part of it.51
[87] In the absence of any agreement between the interested parties we so no reason to
deviate from the drafting of the current modern award. No change will be made to the
exposure draft.
49 AWU submission, 30 June 2016, para 6
50 AMWU submission, 1 November 2017, at Attachment A
51 Qantas submission, 1 November 2017, para 16
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014254-sub-qg-011117.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014254-sub-amwu-011117.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014254-sub-awu-300616.pdf
[2018] FWCFB 1548
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Items 10 and 11 – Casual employment
[88] Ai Group submitted that the definition of a casual employee in the exposure draft
should be replaced by the wording in the current award.
[89] The current award states:
‘11.5 Casual employment
(a) A casual employee is an employee engaged as such.
(b) A casual employee must be paid per hour at the rate of 1/38th of the weekly rate
prescribed for the class of work performed, plus 25%. This loading is instead of
entitlements to leave and other matters from which casuals are excluded by the terms of
this award and the NES.
(c) Casual employees must be paid at the termination of each engagement, or weekly or
fortnightly in accordance with usual payment methods for full-time employees.
(d) Casual employees are entitled to a minimum payment of four hours work at the
appropriate rate.’
[90] The casual employment clause in the exposure draft is currently drafted as follows:
‘11. Casual employment
11.1 A casual employee is an employee engaged on a casual basis.
11.2 A casual employee must be paid the ordinary hourly rate prescribed for the class of
work performed, plus 25%. This loading is instead of entitlements to leave and other
matters from which casuals are excluded by the terms of this award and the NES.
(emphasis added)
11.3 Casual employees are entitled to a minimum payment of four hours’ work at the
appropriate rate. Casual employees are entitled to a minimum payment of four hours’
work at the appropriate rate on each occasion they are required to attend work.’
[91] We agree that the exposure draft has made an unnecessary drafting change to the
definition of a casual employee. It is appropriate to revert back the current definition and vary
the exposure draft as follows:
‘11.1 A casual employee is an employee engaged as such.’
[92] Ai Group further submitted that the definition of casual loading in clause 11.2 of the
exposure draft changes the entitlements established in the modern award because it is
calculated on the ordinary rate of pay inclusive of any all purpose allowance.
[2018] FWCFB 1548
22
[93] In a previous Full Bench decision regarding the calculation of the casual loading, the
Full Bench explained:52
‘[84] However, in the case of modern awards containing any allowance characterised as all
purpose in nature, the exposure draft has provided that a casual employee must be paid the
ordinary hourly rate and in addition a loading of 25% of the ordinary hourly rate. Because the
ordinary hourly rate (as distinct from the minimum hourly rate) includes any all purpose
allowance, the consequence of this is that the 25% loading is payable on any such all purpose
allowance.’
[94] We do not intend to deviate from the established principles regarding casual loadings
and all purpose allowances. The casual loading in the Airline Operations Award is accurately
described as being applied to the “ordinary hourly rate” and not the minimum. No change
will be made to clause 11.2 of the exposure draft.
Item 15 – Ordinary hours of work – day work
[95] The AMWU submitted that the ordinary hours of work clause should be varied to
include a reference to the consultation clause and the AMWU proposes the following
amendment: 53
‘14.2(c) The ordinary hours of work are to be worked continuously, except for meal breaks at
the employer’s discretion, subject to Clause 31, of the employer between 7.00am and 6.00pm.
The spread of hours may be altered by up to one hour at either end of the spread, by agreement
between an employer and the majority of employees concerned.’
[96] Ai Group did not state a position in response to the AMWU submission, but indicated
that it may seek a further opportunity to make submissions on this matter.54
[97] This issue was previously considered by the Full Bench reviewing the Group 1
awards. In relation to the Manufacturing and Associated Industries and Occupations
Award 2010,55 the Full Bench determined:56
‘[11] We are satisfied that the inclusion of a reference to clause 40.2 (renumbered 41.2) in a
clause which otherwise suggests the employer retains the sole discretion to alter hours of work
will avoid confusion. However, we do not consider the change proposed by AMWU achieves
what it sets out to do.
[12] We have decided to amend clause 13.2(d) by adding an additional sentence to the end of
the clause that reads ‘Any change to rosters or hours of work is subject to the consultative
provisions in clause 41.2.’
(emphasis added)
52 [2015] FWCFB 6656, at [84]
53 AMWU submission, 21 July 2016
54 Ai Group submission, 3 November 2017
55 MA000010
56 [2017] FWCFB 3177 at [11]–[12]
https://www.fwc.gov.au/documents/decisionssigned/html/2017fwcfb3177.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000010/default.htm
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014254-sub-aig-031117.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014254-sub-awu-220716t.pdf
https://www.fwc.gov.au/documents/decisionssigned/html/2015fwcfb6656.htm
[2018] FWCFB 1548
23
[98] Consistent with the previous Full Bench decision, we intend to make a similar change
to clause 14.2(c) of the Airline Operations Award exposure draft as follows:
‘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 6.00 pm. The spread of hours may be altered
by up to one hour at either end of the spread, by agreement between an employer and the
majority of employees concerned. Any change to rosters or hours of work is subject to the
consultative provisions in clause 31.’
[99] Interested parties have until 19 April 2018 to respond to this provisional view, see the
Next steps below.
Item 30 – Apprentice minimum weekly wages
[100] In their submission of 30 June 2016, the AWU outlined in relation to clause
18.5(b)(ii) of the exposure draft, the reference to ‘ordinary weekly wage rate’ should be
changed to ‘ordinary hourly rate’ for consistency with clause 18.5(a)(i).57
[101] Clause 18.5(b)(ii) of the exposure draft is set out as follows:
‘(ii) The minimum wage for an apprentice who commences an AQF III qualification outcome
apprenticeship on or after 1 January 2014 are as set out in the following table (except as
otherwise provided for in clause 16.3 18.5(c)—Adult apprentice minimum wages for current
employees). The percentages are of the ordinary weekly wage rate prescribed in clause 15.3
18.3 for a Tradesperson.’
[102] Clause 18.5(a)(i) of the exposure draft is set out as follows:
‘(i) For apprentices who commenced an AQF IV qualification outcome the percentages are of
the ordinary hourly rate prescribed in clause 18.3 for an Aircraft Maintenance Engineer.’
[103] The Ai Group noted at the conference held on 2 February 2017 they did not have any
difficulty with what is being proposed by the AWU, however went on to note that the words
‘clause 18.3, which is the cross reference, does not in fact prescribe ordinary hourly rates. It
only prescribes minimal hourly rates. It seems anomalous to say that the percentages are of
the ordinary hourly rates prescribed in clause 18.3 when 18.3 does not in fact prescribe those
rates.’58 Ai Group went on to suggest that the exposure draft ‘can be left as is.’59
[104] The AWU noted that it would give consideration to the option of leaving the
exposure draft as it is currently drafted.60
[105] In its written report to the Commission, following discussions among interested
parties, Ai Group advised the interested parties agree that the words ‘prescribed in clause
18.3’ should be deleted from clauses 18.5(a)(i), 18.5(a)(ii) and 18.5(b)(ii).
57 AWU submission, 20 June 2016
58 Transcript, 2 February 2017 at PN479
59 Transcript, 2 February 2017 at PN482
60 Transcript, 2 February 2017 at PN484-485
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/02022017-am2014254-255.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/02022017-am2014254-255.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/02022017-am2014254-255.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014254-sub-awu-300616.pdf
[2018] FWCFB 1548
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[106] In the Ai Group’s written report there was no reference to any agreement being
reached about whether references to ‘ordinary weekly wage rate’ in clause 18.5(b)(ii) should
be ‘ordinary hourly rate’ for consistency with clause 18.5(a)(i).
[107] We have decided to make the change agreed to by the parties, that is, to delete the
words ‘prescribed in clause 18.3’ from clauses 18.5(a)(i), 18.5(a)(ii) and 18.5(b)(ii). We have
also decided to change the reference to ‘ordinary weekly wage rate’ in clause 18.5(b)(ii) to
‘ordinary hourly rate’ for consistency with clause 18.5(a)(i).
Item 41– Overtime
[108] AWU submitted that the reference to clause 14.2(c) in clause 23.1(b) of the exposure
draft should be to clauses 14 and 15.
[109] It is unclear whether this item is in fact agreed or in dispute. The AMWU submitted
that the item was agreed.61 Ai Group submitted that the item remains outstanding.62 Qantas
agrees with the following amendment to clause 23.1(b) of the exposure draft on the basis that
overtime is not payable in circumstances where there is a change to the shift roster made in
accordance with clause 17.2:63
‘(b) For the purpose of this clause, ordinary hours means the hours worked in any
enterprise, fixed in accordance with clauses 14.2 (c), 14.3 or 15.1(a).’
[110] Our provisional view is that the variation proposed by Qantas is appropriate as it more
accurately reflects the scope of clauses to be considered when arranging hours of work.
Interested parties are invited to comment on this provisional view by 19 April 2018, see the
Next Steps below.
Item 49 – Summary of Hourly Rates of Pay
[111] The AMWU submitted that the summary of hourly rates of pay in Schedule B of the
exposure draft should include overtime for casuals. The AMWU submitted that casual
employees are not excluded from overtime and the tables should be amended to identify
overtime rates payable.64
[112] The issue of whether casual employees are entitled to overtime has been identified as
an outstanding issue in respect of a number of awards. A separate Full Bench has been
constituted to deal with the issue. On 4 December 2017, the Full Bench issued a Statement
identifying a number of other awards with similar issues.65 The Airline Operations Award is
identified on that list as it contains some ambiguity as to whether overtime is payable to
casual employees, when such overtime commences and the rate at which overtime is payable.
61 AMWU submission, 1 November 2017
62 Ai Group submission, 3 November 2017
63 Qantas submission, 1 November 2017
64 AMWU submission, 21 July 2016 at para 30
65 [2017] FWCFB 6417
https://www.fwc.gov.au/documents/decisionssigned/html/2017fwcfb6417.htm
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014254-sub-awu-220716t.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014254-sub-qg-011117.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014254-sub-aig-031117.pdf
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[113] This matter has now been referred to a separate Full Bench for further consideration.66
Substantive matters
[114] Interested parties are directed to advise the Commission about whether they intend to
pursue the outstanding substantive matters in accordance with the Next steps below. Any
outstanding matters will be referred to a separate Full Bench for consideration.
[115] There are no other matters for this Full Bench to determine with regards to the Airline
Operations Award.
2.6 Airport Employees Award 2010
[116] An exposure draft based on the Airport Employees Award 201067 (Airport Employees
Award) was published on 2 June 2016. Submissions in response to the exposure draft were
received from the AMWU, the Community and Public Sector Union (CPSU), and the
Association of Professional Engineers, Scientists and Managers, Australia (APESMA).
[117] A hearing was held on 6 December 2016 in Sydney. A revised summary of
submissions was published on 4 January 2017. A conference was held on 2 February 2017.68
No employer parties were present at the conference. The parties in attendance (the CPSU and
the AMWU) advised they did not wish to make submissions in relation to any items except
item 12.
[118] A draft report summarising the technical and drafting issues was published on
5 October 2017. Interested parties were directed to comment on the accuracy of the report
and advise any outstanding items that required determination by the Commission. The
AMWU advised the Commission the summary was accurate and none of the outstanding
issues were contested between the unions and any employer.69 The AMWU also advised
some of the outstanding items were responses to questions from the Commission, and a
number of other items would be ‘uncontroversial.’70
[119] A final report was published on 14 November 2017 and an updated summary of
submissions was published on 23 November 2017. No substantive matters have been raised
in relation to this award.
[120] A number of items require determination by this Full Bench.
66 AM2017/51, see [2017] FWCFB 6417
67 MA000049
68 Transcript, 2 February 2017
69 AMWU correspondence, 17 October 2017
70 AMWU correspondence, 17 October 2017
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014255-corr-draftreportback-amwu-171017.pdf
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https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/02022017-am2014254-255.pdf
https://www.fwc.gov.au/documents/documents/modern_awards/award/ma000049/default.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2017fwcfb6417.htm
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/airport-employees-summary-technical-drafting-231117.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/airport-employees-summary-technical-drafting-231117.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014255-report-141117.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014255-draftreport-051017.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/airport-employees-summary-technical-drafting-revised.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/airport-employees-summary-technical-drafting-revised.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/exposure-draft-airport-employees.pdf
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Items 1 and 16 – standard rate
[121] As part of the exposure draft, the Commission asked whether the definition of
‘standard rate’ in clause 2 of the exposure draft should be refined and the percentages in
clause C.1 recalibrated. The AMWU submitted that the divisor should be consistent with the
formula set out in clause 22.3(b) of the exposure draft.71
[122] Our provisional view is that the divisor should be consistent throughout the award.
[123] For completeness we intend to vary the definition in clause 2 of the exposure draft to
read as follows:
standard rate means the minimum annual rate for a Technical services officer Level 1 in
clause 19.1(a) divided by 52.1666
[124] We intend to vary the text in clause C.1 of the exposure draft to read as follows:
The wage-related allowances in this award are based on the standard rate as defined in clause
2 as the minimum annual rate for a Technical services officer Level 1 in clause 19.1(a)
divided by 52.1666 = $785.58 $783.08
[125] We note that the amount of $783.08 will need to be updated to $808.91 to reflect the
outcome of the 2016–2017 annual wage review.
Item 2 – Apprentice trades
[126] The AMWU noted that the word “shall” is used in clause 12.8 of the exposure draft,
whereas the word “will” is consistently used elsewhere.
[127] For consistency we will delete the word “shall” and insert word “will” in clause 12.8
of the exposure draft.
Item 2A – Ordinary hours of work and rostering—day workers
[128] The FWO raised a question about whether day workers can work ordinary hours on a
Saturday as clause 22.1 of the exposure draft refers to ordinary hours occurring Monday to
Saturday. It is put that this may be inconsistent with the ordinary hours of work set out in
clause 16 of the exposure draft which refers to ordinary hours of work occurring on Monday
to Friday.
[129] A Full Bench considered ordinary hours of work in this award in AM2009/100 and
decided that:
‘Ordinary hours
[9] The AMWU and CPSU submitted that cl.30.1(a) carries over an error from the
underpinning award by referring to the rate payable for work performed outside ordinary
71 AMWU submission, 30 June 2016, page 2
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hours Monday to Saturday when ordinary hours can only be worked Monday to Friday. In our
view the submission is based on a misreading of the clause. The clause deals with the rate of
overtime for work outside ordinary hours and creates a distinction between the rate for such
overtime on Monday to Saturday compared to Sunday (cl.30.1(b)). All work performed on a
Saturday or Sunday is necessarily overtime. The change sought would remove the provision
for the overtime rate for Saturday. No amendment to the clause is required.’72
[130] In our view, the previous Full Bench decision addresses the FWO’s concerns and no
amendment to the exposure draft is needed.
Item 3 – Breaks
[131] The Commission asked whether meal breaks in clause 18.1 of the exposure draft are
paid or unpaid. The AMWU and the CPSU submitted that breaks for day workers are unpaid
and breaks for shift workers are paid.
[132] In the absence of any objection we propose to accept the interpretation advanced by
the AMWU and the CPSU, but invite interested parties to comment on whether any
amendment to the exposure draft is needed to provide clarity. Submissions on this point are to
be provided by 19 April 2018, see the Next steps below.
Item 4 – Minimum wages–Professional Engineers
[133] The Commission asked how employees progress through the three pay points for
Professional engineer Level 1.
[134] In response, APESMA submitted that clause 11.4 of the Airport Employees Award
199973 set out the mechanism for progressing through the pay points as follows:
‘11.4 Incremental progression
11.4.1 The job description for each position shall identify the abilities and/or training needed
to progress to the next salary point within the specified range.
11.4.2 Progression through the incremental scale shall be subject to the employee meeting
the criteria identified for his/her position.
11.4.3 Subject to 11.4.2, progression through the incremental scale may be initiated at the
discretion of the employer or on application by the employee.
11.4.4 Such progression may occur at any time, but assessment would normally be
conducted annually.’
[135] During award modernisation, this definition was not transposed into the modern
award.
72 [2010] FWAFB 286 at [9]
73 AP768388
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[136] Our provisional view is that the definition in the pre-reform award should be
replicated in the exposure draft as a new clause 19.1(e) as follows:
‘(e) Incremental progression for Professional engineers
(i) The job description for each position will identify the abilities and/or training
needed to progress to the next salary point within the specified range.
(ii) Progression through the incremental scale will be subject to the employee meeting
the criteria identified for their position.
(iii) Subject to 19.1(e)(ii), progression through the incremental scale will be initiated
at the discretion of the employer or on application by the employee.
(iv) Such progression may occur at any time, but assessment would normally be
conducted annually.’
[137] Submissions on this provisional view are to be provided by 19 April 2018, see the
Next steps below.
Items 5 and 6 – Reimbursement of airfares
[138] AMWU noted that the word ‘dependent’ was misspelt in clause 20.3(d)(ii) of the
exposure draft.
[139] The exposure draft will be amended to use the word ‘dependant’ instead.
[140] The Commission asked whether a motor vehicle allowance should be inserted or
whether the reference to the allowance should be deleted.
[141] In response, the AMWU and the CPSU support the deletion or clarification of the
reference to a motor vehicle allowance in clause 20.3(d)(v) of the exposure draft.
[142] Clause 20.3(d)(v) of the exposure draft will be varied to delete the reference to a
motor vehicle allowance as follows:
‘…equal to the lesser of:
the cost of a return airfare reasonably incurred; or
the motor vehicle allowance; or
the cost reasonably incurred in respect of such travel.’
Items 7 and 8 – Reimbursement of air conditioning expenses
[143] The AMWU submitted that the bottom row of the table in clause 20.3(f)(ii) of the
exposure draft may be clearer if it read:
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‘where a separate meter is installed which records only electricity consumption of the air
conditioning system’74
[144] No other interested party commented on the AMWU submission.
[145] We agree that the phrasing in the table is ambiguous and propose the following
amendment to the table in clause 20.3(f)(ii):
% of total charges
1 room air conditioner 50
2 room air conditioners 65
3 room air conditioners 70
Where a separate meter that only
records electricity consumption of
the air conditioning system is
installed
85
[146] Submissions on this provisional view are to be provided by 19 April 2018, see the
Next steps below.
[147] As part of the exposure draft, the Commission asked whether ‘Option B’ in clause
20.3(f)(iii) of the exposure draft should read: “B = the number of days covered by the
acceptable account”.
[148] The CPSU does not support altering the existing provision on the basis that there is no
evidence that the clause creates difficulty in practice.75
[149] In the absence of any suggestions from interested parties, we do not intend to vary the
exposure draft.
Item 9 – Call-back
[150] Clause 22.6(f) of the exposure draft currently contains a cross-reference to ‘clause 0’.
That cross-reference will be updated to say ‘clause 22.5’, consistent with the current modern
award.
Item 10 – On call and stand-by
[151] The CPSU submitted that the term ‘ordinary hourly rate’ should be used in
clause 22.7 of the exposure draft to indicate the inclusion of any applicable allowance.76
[152] The inclusion of a defined ‘ordinary hourly rate’ and the interaction with any
‘all purpose’ allowance in exposure drafts was considered at length in the first Group 3
74 AMWU submission, 30 June 2016
75 CPSU submission, 26 July 2016, para 8
76 CPSU submission, 26 July 2016, para 12
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Decision.77 The Airport Employees Award does not contain an all purpose allowance and as
such there is no defined ‘ordinary hourly rate’.
[153] On that basis we do not intend to vary the exposure draft in the way suggested by the
CPSU.
Item 12 – Shift payment
[154] The CPSU submitted that the wording ‘must be paid for such shift’ should be
incorporated into clause 23.2 of the exposure draft to make it consistent with the terminology
used in the current modern award.78
[155] The exposure draft has changed the terminology used in the current clause. To avoid
any uncertainty or ambiguity about the operation of the clause we intend to re-instate the
current provision as follows:
‘23.2 Shift payment
(a) A shiftworker whilst on a shift, any part of which is a night shift, must be paid
for such shift 115% of the minimum hourly rate, except as specified in clause
23.2(b).’
Item 13 – Broken leave
[156] The CPSU submitted that the formatting in clause 24.3 of the exposure draft should be
amended to match the drafting of the current modern award clause 31.3.79 There was no
response from other interested parties.
[157] We agree that there is no reason to deviate from the wording and formatting of the
current modern award provision. Our provisional view is that the exposure draft should be
amended to revert back to the current modern award drafting as follows:
‘24.3 Broken leave
(a) Annual leave may be granted in such periods as are mutually agreed between
the employer and an employee. Leave entitlements taken in respect of any year
of service must include at least one period of at least one week, excluding
public holidays.
(b) The employer and the majority of employees at an airport may agree to
establish a system of single day annual leave absences, subject to clause 7.5.
(i) An employee may elect, with the consent of the employer, to take
annual leave in single day periods or part of a single day not
exceeding a total of 10 days in any calendar year at a time or times
agreed between them.
77 [2017] FWCFB 3433 at [353]–[379]
78 CPSU submission, 26 July 2016, para 11
79 CPSU submission, 26 July 2016, para 14
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(ii) A shiftworker and the employer may agree to defer payment of the
annual leave loading in respect of single day absences until at least 10
consecutive annual leave days are taken.’
[158] Submissions on this provisional view are to be provided by 19 April 2018, see the
Next steps below.
Item 14 – Annual leave loading
[159] The AMWU submitted that there is an inconsistency between the wording of clause
24.11(a) and 24.11(b)(i) that also exists in the current modern award.80 Clause 24.11(a)
requires that an employee be paid a loading during a period of annual leave which could be
taken at various times of the year. However, under clause 24.11(b)(i) the loading is to be paid
once annually in December, whether or not leave is to be taken at that time.
[160] We agree that there is an inconsistency between these clauses and our provisional
view is that it is appropriate that clause 24.11(b)(i) be re-drafted as follows:
(i) Non-shiftworkers
An annual leave loading of 17.5% of the minimum hourly rate in clause 24.9 must be
paid once annually on the first pay day in December to employees other than
shiftworkers during each period of annual leave.
[161] Submissions on this provisional view are to be provided by 19 April 2018, see the
Next steps below.
Item 15 – Rostered day off falling on public holiday
[162] The Commission asked whether payment for a public holiday is in addition to the
payment for a rostered day off.
[163] The AMWU and the CPSU submitted that an employee whose rostered day off falls
on a public holiday would receive payment for the public holiday and a separate day off.
[164] In the absence of any objection we are content to accept this interpretation. Interested
parties are asked whether they seek any variation to the exposure draft to clarify this
interpretation. For example, a new clause 27.8(d) could be inserted as follows:
(d) An employee whose rostered day off occurs on a public holiday will receive the
payment in clause 27.8(b) and an additional day off on an alternate day.
[165] Submissions on this provisional view are to be provided by 19 April 2018, see the
Next steps below.
80 AMWU submission, 30 June 2016, para 21–23
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[166] We note that no employer representatives participated in the proceedings in relation to
the Airport Employees Award. The views expressed are provisional views and interested
parties are invited to comment on by 19 April 2018, see the Next steps below. In the absence
of any objection the changes discussed will be made to the exposure draft.
[167] There are no other outstanding matters for this Full Bench to determine with regards
to the Airport Employees Award.
2.7 Amusement, Events and Recreation Award 2010
[168] On 22 November 2016, the Commission published an initial exposure draft based on
the Amusement, Events and Recreation Award 201081 (Amusement Award) together with a
comparison document showing the changes made to the structure and language in the award.
[169] A summary of submissions in relation to the technical and drafting issues and a
summary of submissions in relation to the substantive issues were published on 8 March
2017.
[170] On 20 April 2017 the Commission conducted a preliminary conference to discuss the
issues set out in the summary of submissions.82 A number of technical and drafting matters
and substantive issues were resolved amongst the interested parties.
[171] On 10 May 2017, updated summaries of submissions for technical and drafting
matters and the substantive issues were republished. This was followed by a revised exposure
draft being republished on 10 May 2017.
[172] On 10 November 2017, a Report to the Full Bench was published, which was
followed by the publication of an updated technical and drafting summary of submissions on
20 November 2017. We will adopt the agreed variations set out in the Report and the
exposure draft will be updated accordingly
[173] There are a number of items that remained unresolved and these are set out below.
Item 13 – Minimum wage – adult employees
[174] Item 13 relates to the AWU’s proposal to amend the preamble to the adult employee
minimum wage table in clause 16.1 of the exposure draft. This proposed amendment to
clause 16.1 appears as follows:
An employer must pay adult employees the following minimum wages (plus any applicable
allowances) for ordinary hours worked by the employee.83
[175] The AWU submitted that the change is necessary because the Amusement Award
contains an all purpose allowance for exhibition employees (at clause 17.2) and consistent
81 MA000080
82 Transcript, 20 April 2017
83 AWU submission, 18 January 2017, para 10
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014256-sub-awu-180117.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/200417_am2014256.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/ma000080/default.htm
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/amusement-summary-technical-drafting-201117.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014254-report-fb-101117.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/exposure-draft-amusement-revised-100517.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/exposure-draft-amusement-revised-100517.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/amusement-substantive-summary-subs.pdf
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https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/amusement-substantive-summary-subs.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/amusement-summary-technical-drafting-080317.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/comparison-amusement.pdf
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with the definition of ‘ordinary hourly rate’ at clause 2 of the exposure draft, the preamble to
the minimum wages table should explicitly reference this applicable allowance to which an
adult employee is entitled. 84
[176] In particular, the AWU raised a concern that the current wording at clause 16.1 of the
exposure draft may incorrectly give the impression that the weekly and hourly rates listed are
the minimum for all employees, including those entitled to the all purpose allowance.85 For
example, an exhibition technician is classified as a Grade 4 employee, and the minimum
amount expressed in the table at clause 16.1 is $783.30 per week. At clause 17.2(b) an
exhibition technician is entitled to an all purpose allowance at $55.61 per week in addition to
that $783.30.86 So the preamble of the table fails to mention that allowance, and in doing so,
may mislead someone, either an employer or an employee, as to what an employee is entitled
to.
[177] The AFEI do not support the proposed change, stating that the additional words are
unnecessary and unduly add to the length of that clause.87
[178] The Group 3 decision considered the calculation of rates in the hourly rates of pay
schedule in a number of modern awards which contain an all purpose allowance which apply
only to some employees.88 This award has been drafted consistently with the Group 3 Full
Bench’s view and the amendment proposed by the AWU is not necessary.
Item 14 – Wage-related allowances
[179] Item 14 concerns Live Performance Australia’s (LPA) proposal to remove the ‘$ per
hour’ column from the table in clause 17.2(b) of the exposure draft. LPA submitted that these
specific supervisory and flexible loading allowances in practice only practically apply to
employees engaged and paid by the week, and that the inclusion of such “hourly” rates makes
the clause ambiguous.89
[180] At the conference held on 20 April 2017, the AWU opposed LPA’s proposal,
preferring to preserve the status quo.90 The AWU also queried whether a part-time employee,
who works less hours, would still maintain that same weekly allowance.91 The LPA
responded that, in that circumstance, an employee’s wage is calculated by their weekly all
purpose allowances in clause 17.2(b) being added to their minimum week rate in clause 16.1
of the exposure draft, the total of which is then divided by the number of hours worked.92 The
AWU responded this would be an unnecessary exercise as the ‘per hour’ all purpose
84 AWU submission, 18 January 2017, para 10
85 Transcript, 20 April 2017 at PN70
86 Transcript, 20 April 2017 at PN70
87 Transcript, 20 April 2017 at PN69; AFEI submission, 22 February 2017, para 8
88[2017] FWCFB 3433, 6 July 2017, at PN[353]-[261]
89 LPA submission, 22 February 2017, para 5; Transcript, 20 April 2017 at PN80, PN84, PN88
90 Transcript, 20 April 2017 at PN78
91 Transcript, 20 April 2017 at PN81
92 Transcript, 20 April 2017 at PN84
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allowance could be used to arrive at the employees pay by simply adding it to the minimum
hourly rate and multiplying that total with the number of hours worked. 93
[181] In our view, the inclusion of a ‘$ per hour’ column in clause 17.2(b) of the exposure
draft does not create ambiguity or uncertainty. And in the absence of any agreement between
the interested parties we do not propose to deviate from the drafting of the exposure draft. No
change will be made.
Item 15 – Expense-related allowance – meal allowance
[182] Item 15 concerns a question raised by the Commission about whether the meal
allowance at clause 17.3(b) of the exposure draft should be restricted to “an ordinary working
day”.
[183] Business SA took the view that the meal allowance for overtime should be restricted
to when overtime is immediately after finishing one’s ordinary hours.94 It further submitted
that the purpose of the meal allowance is to ensure that employees can purchase a meal if
they have not had the opportunity to bring in their own food and where an employee is
working overtime in a standalone situation (not attached to ordinary hours), there is
opportunity for the employee to prepare and bring in their own meal.95 AFEI similarly held
the view that the meal allowance should continue to be restricted to ‘an ordinary working
day’.96 It argued that this is consistent with the current award, and any removal of the
restriction would constitute a substantive change.97
[184] The AWU noted that according to clause 13.5 of the exposure draft ordinary hours
can be worked any day from Monday to Sunday, and therefore there are no ‘ordinary working
days’.98 The AWU also noted that the words ‘ordinary working day’ does not appear
anywhere in the exposure draft other than at clause 17.3(b), hence the reference to ‘ordinary
working day’ causes unnecessary confusion and should be removed to improve the clarity of
the clause.99
[185] Both AFEI and Business SA disagreed with the AWU.100 Business SA considered that
the deletion of the phrase would amount to a substantive change to the Amusement Award.101
At the conference on 20 April 2017, the AWU submitted that the removal of the phrase from
the clause would not have any effect on employee entitlements.102 Indeed, the AWU argued
that under the current wording, the phrase ‘ordinary working day’ may be incorrectly
93 Transcript, 20 April 2017 at PN87
94 BusSA submission, 18 January 2017, para 1.3.
95 BusSA submission, 18 January 2017, para 1.3.
96 AFEI submission, 18 January 2017, para 11
97 AFEI submission, 18 January 2017, para 11
98 AWU submission, 18 January 2017, para 12
99 AWU submission, 18 January 2017, para 13
100 AFEI submission in reply, 22 February 2017, para 9; BusSA submission in reply, 22 February 2017, para 1.11
101 BusSA submission in reply, 22 February 2017, para 1.10
102 Transcript, 20 April 2017 at PN93
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https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014-256andors-sub-afei-220217.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014256-sub-awu-180117.pdf
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interpreted to deny an employee who works two or more hours of overtime on a day from
being entitled to the allowance.103
[186] We agree with the view of Business SA and AFEI that the meal allowance for
overtime should be restricted to circumstances where overtime immediately follows the
employees’ ordinary hours. It is not clear, however, what purpose the words “on an ordinary
working day” play in the context of clause 17.3(b), as it has not been defined in the exposure
draft. We agree with the AWU that the removal of the phrase would not constitute a
substantive change to employee entitlements.
[187] Clause 17.3(b) of the exposure draft will be varied as follows:
(b) Meal allowance
An employee who is required to work overtime for two or more hours immediately after
finishing their ordinary hours of work on an ordinary working day must be paid a meal
allowance of $11.10 unless the employer provides a meal.
Item 17 – Overtime
[188] Item 17 relates to the AWU’s submission that clause 19.1 of the exposure draft fails to
provide that overtime is paid to full-time and part-time employees when they work over eight
ordinary hours per day, as per clause 13.2 of the exposure draft.104
[189] Business SA and the AFEI disagreed with the AWU.105 Business SA submitted that a
part-time or full-time employee is not always entitled to payment for overtime where they
work over eight ordinary hours in one day as a consequence of clauses 13.3 and 13.4 of the
exposure draft. Clauses 13.3 and 13.4 permit, by agreement, an increase from eight to 10 or
12 ordinary working hours to be worked in a single day106 and clause 19.1 accurately reflects
this flexibility by stating overtime is payable where the employee works in excess of the
rostered working hours on any one day; be that eight, 10 or 12 hours.107
[190] At the conference held on 20 April 2017, the AWU clarified that it proposed an
amendment to replace the words ‘the rostered’ with ‘ordinary’ in clause 19.1 of the exposure
draft to allow for employees who work eight, 10 and 12 hour days to access the overtime
benefits.108
[191] Clause 19.1 of the exposure draft has been drafted in a manner which is consistent
with the current modern award provision. In our view, the clause satisfactorily accounts for
the fact that overtime may only accrue to some employees after they have worked beyond
103 Transcript, 20 April 2017 at PN94
104 AWU submission, 18 January 2017, para 14
105 AFEI submission in reply, 22 February 2017, para 9; BusSA submission in reply, 22 February 2017, para 1.11
106 BusSA submission in reply, 22 February 2017, para 1.11
107 Business SA submission in reply, 22 February 2017, para 1.11
108 Transcript, 20 April 2017 at PN101
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eight, 10 or 12 rostered hours in a single day, as provided for in clauses 13.3 and 13.4 of the
exposure draft. Therefore no amendment to the exposure draft is needed.
Item 18 – Sunday and public holiday work
[192] Item 18 concerns to the applicable rates payable to an employee working overtime on
a Sunday, as set out in clause 19.5 of the exposure draft. The FWO, in its correspondence
dated 2 March 2015, raised a concern regarding an inconsistency in relevant rates between
clauses 19.2 and 19.5(a) of the exposure draft.109
[193] Under clause 19.5(a) all time worked on a Sunday will be paid at 150% of the
ordinary hourly rate. However, under clause 19.2 all overtime worked will be payable at
150% for the first three hours and 200% thereafter. The FWO queried whether clause 19.5
should refer to “ordinary hours worked on a Sunday”.110
[194] In response to the FWO’s query, Business SA submitted that overtime worked on
Sunday should be at the rate of 150% for the first 3 hours and 200% thereafter. The penalty
of 150% for all hours on a Sunday is the penalty rate (not overtime rate) for ordinary hours
worked on a Sunday. Therefore, Business SA supports clause 19.5 of the exposure draft
referring to “Ordinary hours worked on a Sunday”.111
[195] Similarly, the AWU noted that clause 13.5 of the exposure draft outlines that ordinary
hours can be worked Monday to Sunday and therefore the rate payable for an employee who
works their ordinary hours on a Sunday is 150%, with overtime worked on a Sunday paid
pursuant to clause 19.2.112
[196] AFEI, however, did not support the AWU’s or Business SA’s submissions that clause
19.5 should state ‘Ordinary hours worked on a Sunday’. AFEI noted that this proposal is
inconsistent with the current award at clause 23.3(a).113
[197] It is our provisional view that the submissions of Business SA and the AWU be
accepted and the words ‘All time worked’ be replaced with ‘Ordinary hours’ in clause 19.5(a)
of the exposure draft. This would ensure that employees are paid at the appropriate overtime
rate on Sundays. Interested parties are invited to comment on this provisional view by 19
April 2018 see the Next steps below.
[198] There are no other outstanding matters for this Full Bench to determine with regards
to the Amusement Award. The substantive matters in this award will be referred to a separate
Full Bench to consider and determine.
109 FWO correspondence, 2 March 2015
110 FWO correspondence, 2 March 2015
111 Business SA submission, 18 January 2017, para 1.4
112 AWU submission, 18 January 2016, para 15–16
113 AFEI submission in reply, 22 February 2017, para 11
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https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014217andors-corr-fwo-020315.pdf
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2.8 Architects Award 2010
[199] An exposure draft based on the Architects Award 2010114 (Architects Award) was
published on 13 May 2016 and submissions in response to the exposure draft were received
from the Association of Consulting Architects–Australia (ACAA),115 APESMA116 and
CplusC Architectural Workshop (CplusC).117 Ai Group also made a submission in relation to
general issues arising from exposure drafts.118
[200] A summary of submissions was published on 30 November 2016. A hearing was held
on 6 December 2016. APESMA and ACAA both appeared at the hearing. Updated
summaries of submissions were published for the technical and drafting matters and the
substantive issues on 20 November 2017.
[201] Four issues in relation to technical and drafting issues were the subject of
submissions.
Item 1 – Casual employment
[202] Item 1 deals with casual employment, in clause 10 of the exposure draft. Interested
parties were asked to comment on whether the words “by the week” in clause 10.3 should be
changed to “as a full-time or part-time employee”. CplusC, ACAA and APESMA all made
submissions supporting the change of wording. The exposure draft will be updated to reflect
this change.
Item 2 – Overtime
[203] Item 2, which relates to time off instead of payment for overtime, was the subject of
discussion at the hearing and APESMA noted that this may become a substantive issue.119
Accordingly, we will not deal with the time off instead of payment for overtime issue further
in this decision. APESMA, or any other interested party, are to confirm whether this matter
will be pursued as a substantive variation, see the Next Steps below.
[204] The remaining two items were the subject of submissions in response to questions
asked by the Commission in the exposure draft.
Item 3 – Time off instead of payment
[205] Item 3 related to the overtime provisions in clause 13 of the exposure draft. Interested
parties were asked whether “in excess of normal hours” in clause 13.1 should be amended to
read “in excess of or outside the spread of ordinary hours” to make it clear that overtime is
also payable when worked outside the spread of hours. CplusC and APESMA supported the
114 MA000079
115 ACAA submission, 30 June 2016
116 APESMA submission, 2 August 2016
117 CplusC submission, 30 June 2016
118 Ai Group submission, 31 August 2016
119 Transcript, 6 December 2016 at PN426
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proposed amendment. ACAA submitted the following alternative wording “in excess of the
normal hours or outside the spread of ordinary hours”.
[206] The exposure draft will be varied as follows:
13.1 An employer must compensate an employee for all time worked in excess of or
outside the spread of ordinary hours by:
Item 4 – Minimum wages
[207] Item 4 concerns whether the table of minimum wages in clause 14 of the exposure
draft should include weekly rates. Each of the three parties agreed that the table should
include weekly rates. The exposure draft will be amended accordingly.
[208] No interested parties appeared at the further conference on 25 July 2017. The
Commission subsequently wrote to ACAA to seek clarification about whether they would
pursue the substantive variations as set out in the summary of substantive variations.120 The
ACAA advised that it would pursue the variations and requested a further hearing.121 The
substantive matters will be referred to a separately constituted Full Bench.
[209] There are no other outstanding issues for this Full Bench to determine with regards to
the Architects Award.
2.9 Book Industry Award 2010
[210] On 16 November 2016 the Commission published an initial exposure draft based on
the Book Industry Award 2010122 (Book Industry Award) and a comparison document
showing the changes made to the structure and language in the award. Interested parties were
provided with an opportunity to file written submissions and submissions in reply on the
technical and drafting issues in the exposure draft.
[211] Ai Group was the only party to file material in relation to the review of the Book
Industry Award. The submission included a response to our question regarding overtime
provisions.
[212] A summary of submissions was published by the Commission on 8 March 2017 and
the award was listed for mention on 20 April 2017, and Ai Group was the only party to
attend.123 An updated summary of technical and drafting matters was published on 20
November 2017.
[213] The issues addressed in Ai Group’s submissions are set out below, with reference to
the relevant exposure draft clauses.
120 FWC correspondence, 26 July 2017
121 ACAA correspondence in reply, 26 July 2017
122 MA000078
123 Transcript, 20 April 2017
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https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/book-summary-technical-drafting-201117.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/book-summary-technical-drafting.pdf
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Item 1 – Exclusions from coverage
[214] Ai Group proposed to insert the word ‘employees’ before the word ‘who’ at the
beginning of clause 4.4(c) of the exposure draft, so that the clause reads coherently.
[215] We agree with Ai Group; the error will be corrected in the exposure draft.
Items 2 and 3 – Facilitative provisions
[216] Ai Group proposed that the references to clauses 18.2 and 18.3 be deleted, as it does
not consider either provision to be a ‘facilitative provision’ in the sense contemplated by
exposure draft clause 7.1.
[217] The list of facilitative provisions has been raised in a number of awards and will be
dealt with below at [756].
Item 4 – Casual employment
[218] Ai Group submitted that the change to the definition of a casual employee from ‘an
employee who is engaged as such’ in the Book Industry Award to an employee ‘who is
engaged and paid as a casual employee’ in the exposure draft could be a substantial change,
and therefore should be deleted.
[219] We do not agree with Ai Group’s submission that the addition of the word ‘and paid’
constitutes a substantive change. The terminology is common to a number of modern awards
and, in our view, makes no difference to the operation of the clause or the entitlements of a
casual employee. The exposure draft will not be amended.
Item 5 – Exemptions for Senior editors Level 3 Grade 3 and Publicists Grade 6 and 7
[220] The Book Industry Award currently provides that Part 5 of that award does not apply
to employees classified as Senior editors Level 3 Grade 3 or Publicists Grade 6 or 7. The
relevant Part provides for ordinary hours of work and rostering, breaks and overtime. Ai
Group submitted that while the exposure draft provides exemptions from ordinary hours of
work and overtime provisions for Senior editors Level 3 Grade 3 and Publicists Grade 6 and
7, there is no equivalent exemption from the breaks provision in the exposure draft (clause
13). Ai Group submitted that it is unclear why this is the case, and proposed that the
exemption contained in clause 20 of the Book Industry Award be retained in clause 13 of the
exposure draft.
[221] Ai Group’s observation appears to be accurate. Our provisional view is that the
exposure draft be varied as follows:
13. Breaks
13.1 Every employee employed on a full-time basis will be allowed at least one meal
break every day of between 30 and 60 minutes. The employer will be entitled to deduct the
time spent on a meal break from the total time worked in accordance with clause 12.1.
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13.2 Exemption from breaks
Clause 13.1 will not apply to employees classified as Senior editors Level 3—Grade 3 or
Publicists Grade 6 or 7.
[222] Interested parties are invited to comment on the provisional view and also consider
whether clause 13—Breaks, should apply to all types of employees rather than being limited
only to those employed on a full-time basis, see the Next steps below.
Item 6 – Minimum wages
[223] Ai Group proposes to insert the words ‘(full-time employee)’ under the column
heading ‘minimum weekly rate’ in the table in the minimum wages clause of the exposure
draft, and submits that the change is required to avoid uncertainty as to whether the weekly
rates also apply to part-time and casual employees.
[224] This matter will be given further consideration by the Plain Language Full Bench.124
Item 7 – Overtime
[225] In publishing the exposure draft, the Commission asked interested parties whether the
award should include a definition of overtime. The current Book Industry award does not
contain such a definition. Ai Group submits that it does not see the necessity for such a
definition.
[226] In the absence of any support in response to the Commission’s questions regarding
introducing a definition of overtime, we do not propose to take any further action at this time.
Item 8 – ‘Leave Public Holiday’ Part heading
[227] Ai Group submits that the heading ‘Leave Public Holiday’ in Part 6 of the exposure
draft does not make sense, and should be amended to ‘Leave and Public Holidays’ to avoid
confusion as to what the Part is about.
[228] We agree. The part heading will be corrected in the revised exposure draft.
[229] We also express the provisional view that the following drafting variation to
paragraphs 12.1(b) and (c) of the exposure draft to bring them more into line with the drafting
of the current Book Industry Award:
(b) by employees working 19 days in a 28 day work cycle:, of 40 ordinary hours
in each of three weeks and 32 ordinary hours in one week; or
(c) by employees working 10 days in a 14 day work cycle:, of 42 ordinary hours
in one week and 34 ordinary hours in one week; or
124 [2018] FWC 1544
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[230] Interested parties are invited to comment on this provisional view by 19 April 2018,
see the Next steps below.
[231] There are no other outstanding issues for this Full Bench to determine with regards to
the Book Industry Award.
2.10 Building and Construction General On-site Award 2010; Joinery and Building
Trades Award 2010; Mobile Crane Hiring Award 2010
[232] The technical and drafting matters and the substantive matters pertaining to the
Building and Construction General On-Site Award 2010;125 the Joinery and Building Trades
Award 2010;126 and the Mobile Crane Hiring Award 2010127 were referred to a separate Full
Bench to determine.128
[233] There are no outstanding issues for this Full Bench to determine with regards to these
awards.
2.11 Broadcasting and Recorded Entertainment Award 2010
[234] On 25 November 2016 the Commission published an initial exposure draft based on
the Broadcasting and Recorded Entertainment Award 2010129 (Broadcasting Award). A
comparison document was published concurrently with the exposure draft.
[235] Updated summaries of submissions were published for the technical and drafting
matters and the substantive issues on 20 and 21 November 2017 respectively.
[236] The substantive matters in this award were referred to a separately constituted Full
Bench for determination. It remains for this Full Bench to determine the technical and
drafting matters.
[237] Following discussions between interested parties, the following items were resolved
by agreement: 2, 5, 8, 9, 10, 11, 12, 13, 14, 17, 18, 19, 20, 21, 22, 27, 28, 30, 31, 32, 34, 35,
36, 39, 41, 42, 45, 46 and 49. We will adopt the changes agreed to by the parties.
[238] Items 4, 6 and 44 were withdrawn and need not be determined.
[239] The following items remain outstanding: 1, 3, 7, 15, 23, 24, 25, 26, 29, 33, 37, 38, 40,
43, 47 and 48. We have also added item 16 to the unresolved list because it is linked to items
3 and 43. We now turn to consider each of the outstanding items.
125 MA000020
126 MA000029
127 MA000032
128 AM2016/23
129 MA000091
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https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/broadcasting-summary-technical-drafting-201117.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/comparison-broadcasting.pdf
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Item 1 – Calculation of overtime
[240] The following submissions were made by the Australian Directors’ Guild (ADG):130
‘12. The ADG notes various proposals to change the content of the award in relation to the
calculation of overtime particularly to specify that overtime is payable only at the minimum
rate of pay for a classification or at the ordinary hourly rate so defined and to introduce a
provision that overtime is payable on a daily basis. Such an approach is inconsistent with the
history and content of the Motion Picture Production Section of the existing award and the
provisions of the earlier Motion Picture Production Award.
13. The industry is unique as it operates on a standard working week of 50 hrs, well in excess
of the NES standard of 38 hours, minimum daily hours of 10, set periods of high intensity
duty and limited duration engagements which limit the effectiveness and opportunity to use
averaging of hours and for that matter accrued leave or TOIL.
14. The manner of payment and the calculation of overtime is set out in clauses 76 and 77.
Overtime is already calculated on a daily basis rounded to the nearest quarter of an hour if
more than 5 minutes is worked. The proposed variations are inconsistent with the current
provisions in clause 77.2 and they are also inconsistent with the wording in the exposure draft
at clause 81.2 which refer to overtime being payable on the employees gross agreed
remuneration. A similar provision was found in the earlier Motion Picture Award. The current
proposal would result in a significant reduction in pay.’
[241] A previous Full Bench determined the following:
‘[43] The term ‘ordinary hourly rate’ has been used in contrast to ‘minimum hourly rate’ in
affected awards to make it clear that all purpose allowances must be added to the minimum
rate of pay before calculating any penalty rate.
[44] In affected awards, penalties and loadings are expressed as a percentage of the ordinary
hourly rate, for example “overtime is paid at 150% of the ordinary hourly rate” to make it
clear that an all purpose allowance to which an employee is entitled must be added to the
minimum rate before calculating the loaded rate, that is, there is a compounding effect.’131
[242] Given this established calculation principle we believe overtime should be calculated
by reference to the ordinary hourly rate, not the minimum hourly rate. Interested parties may
wish to comment on whether any variation to the exposure draft is required to give effect to
this interpretation. Submissions can be made by 19 April 2018, see the Next steps below.
Items 3, 16 and 43 – Loaded minimum hourly rate
[243] LPA submitted that the reference in clause 13.4 of the exposure draft to the 8%
loading being payable for all purposes is incorrect as the loading is not payable for all
purposes.132
130 ADG submission, 13 February 2017
131 [2015] FWCFB 4658 at [43]–[44]
132 LPA submission, 22 February 2017, para 3a
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[244] LPA submitted that the 8% loading was introduced into the relevant pre-reform award
by consent between LPA and the Media Entertainment and Arts Alliance (MEAA), and that it
was not an all purpose allowance when it was inserted. The loading was reintroduced into the
modern award after having initially been excluded.133 LPA submitted that a Full Bench of the
Australian Industrial Relations Commission (AIRC) acknowledged its submission that the
allowance is not payable for all purposes in 2009 when the decision was made to reintroduce
the loading.134
[245] Interested parties advised that they had reached agreement that the 8% loading applies
to the minimum rate of pay for each hour worked.135
[246] The inclusion of this penalty payment was introduced as a result of a previous Full
Bench Decision. That Full Bench explained:136
‘[8] The second change is to clause 14.12. The name of the clause is changed from “Cinema
Workers” to “Employees in cinemas”. The clause itself is changed so that it reads:
“All employees in cinemas will receive an 8% penalty averaging component instead of
Sunday penalty payments and reduced Public Holiday penalties.”
[9] This change is designed to ensure that all employees in cinemas, whether they be
managerial or ‘cinema workers’ receive the 8% penalty averaging component…’
[247] The previous Full Bench did not indicate whether the 8% allowance was payable for
all purposes, nor did it indicate whether the allowance was cumulative or compounding, but
the intention does not appear to have been to create an all purpose allowance. Interested
parties have agreed to the deletion of the words “This loading is payable for all purposes”
appearing in clause 13.4 of the exposure draft and to delete the definition in clause 2 of the
exposure draft. We will adopt the parties’ agreed position.
[248] We think there is merit in seeking further clarification about how the 8% loading is
calculated. Interested parties are to provide submissions on this point by 19 April 2018, see
the Next steps below.
Item 7 – Facilitative provision – Radio Broadcasting – meal break during shift
[249] In the exposure draft published in November 2016 the Commission posed a question
to interested parties in the following terms:
‘Parties are asked to confirm whether agreement under clause 40.3 can be on an individual
basis’
[250] Submissions were received from the CPSU, AFEI and ABI. The CPSU submitted that
‘employees’ can be read as an individual or group of employees,137 whereas AFEI and ABI
133 LPA submission, 22 February 2017, para 3a
134 LPA submission, 22 February 2017, para 3a, citing [2009] AIRCFB 998 at [5]
135 Cinema Industry Employers submission, 30 June 2017
136 [2012] FWA 8761, at [8]–[9]
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submitted that agreement can only be reached between an employer and an individual
employee.138
[251] The origin of this provision can be traced to the Commercial Radio – Technical Staff
Award 1998.139 In that particular pre-reform award, the equivalent provision appeared at
clause 18.1.3 in the following terms:
‘By agreement between any employer and employee/s other arrangements about meal periods
may be made.’140
[252] The pre-reform award makes clear that the intention of the clause is to allow for
agreement to be reached between the employer and either an individual employee or group of
employees. Accordingly, we concur with the submission of the CPSU.
[253] The exposure draft will be amended to state that agreement can be reached between
and employer and an individual employee or a majority of employees. The variation will
appear as follows:
40.3 By agreement between any employer and an individual employee or a majority of
employees other arrangements about meal breaks may be made.
Item 15 – Classifications and minimum wages
[254] The MEAA submitted that the change in the way penalties and loadings are expressed
in the award, from time base formulas (such as ‘time and a half’) to percentage based
formulas (such as ‘150% of the minimum hourly rate’) may result in a reduction in the take
home pay of employees.141
[255] LPA submitted that it would support the MEAA’s position if it could be shown that
employees would be disadvantaged as a result.142 The MEAA’s position is opposed by the
Seven Network (Operations) Limited, Nine Network Pty Limited and Network Ten Pty
Ltd (Seven Network).143
[256] In a previous decision, the Commission made the following observations:
‘Modern awards provide a safety net of minimum entitlements. The modern award prescribes
the minimum rate an employer must pay an employee in given circumstances. Overaward
payments, while permissible, are not mandatory. Further, if an employer chooses to pay an
employee more than the minimum amount payable for ordinary hours worked, the employer is
not required to use that higher rate when calculating penalties or loadings. We are not
137 CPSU submission, 21 December 2016, para 3
138 AFEI submission, 18 January 2017, para 12; ABI submission, 18 January 2017, para 4.1
139 AP772216
140 AP772216, clause 18.1.3
141 MEAA submission, 21 December 2016, paras 4–6
142 LPA submission, 22 February 2017, para 4
143 Seven Network submission, 22 February 2017, paras 2–3
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014259-sub-7networkandors-220217.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014259-sub-reply-aeia-220217.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014259-sub-meaa-211216.pdf
https://www.fwc.gov.au/documents/consolidated_awards/ap/ap772216/asframe.html
https://www.fwc.gov.au/documents/consolidated_awards/ap/ap772216/asframe.html
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014-256andors-sub-abinswbc-180117.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014256andors-sub-afei-180117.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014259-sub-cpsu-211216.pdf
[2018] FWCFB 1548
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persuaded by the submissions advanced by union parties and do not propose to replace the
terms 150% and 200% with time and a half or double time, etc.’144
[257] We reaffirm this position and reject the submission by the MEAA.
Items 23 and 24 – Annual leave
[258] The Seven Network submitted that clauses 16.2 and 16.3 of the exposure draft should
be amended to more closely reflect the provisions of s. 87(1)(b) of the Act.145 The effect of
the Seven Network’s amendments would be that the notes appearing at the end of clauses
16.2 and 16.3 of the exposure draft would read as follows (underlined text to be added):
NOTE: s.87(1)(b) of the Act does not apply as employees under this clause are not defined or
described as shiftworkers for the purposes of the NES.146
[259] The CPSU neither supported, nor opposed the Seven Network’s submission. No other
interested party has commented on this item. On that basis, we will vary the exposure draft
according to the Seven Network’s suggestion at [258].
Item 25 – Annual leave loading
[260] Commercial Radio Australia (CRA) submitted that the current drafting of clause
16.9147 of the exposure draft could be read as entitling some employees to payment of both
the relevant shift loading (and potentially other amounts payable in respect of ordinary hours)
and an additional annual leave loading.148
[261] Clause 16.9 of the exposure draft appears in the following terms:
‘16.9 Annual leave loading
Before the start of the employee’s annual leave the employer must pay the employee:
(a) subject to clause 32.2(d), instead of the base rate of pay referred to in s.90(1) of the
Act, the amount the employee would have earned for working their normal hours,
exclusive of overtime had they not been on leave; and
(b) an additional loading of 17.5% of the relevant minimum wage for their classification as
set out in this award.’
[262] The CRA submitted that paragraph (a) should be amended, and a new paragraph
inserted after paragraph (b), such that they would read as follows:
144 [2015] FWCFB 4658 at [96]
145 Seven Network submission, 18 January 2017, para 3.9
146 Seven Network submission, 18 January 2017, Annexure A
147 The submissions refer to clause 16.7, however amendments to the exposure draft mean that the provision referred to is
now found at clause 16.9
148 CRA submission, 21 December 2016, para 2
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014259-sub-cra-211216.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014259-sub-7networkandors-180117.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014259-sub-7networkandors-180117.pdf
https://www.fwc.gov.au/documents/decisionssigned/html/2015fwcfb4658.htm
[2018] FWCFB 1548
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‘(a) subject to clause 32.2(d), instead of the base rate of pay referred to in s.90(a) of the
Act, the amount the employee would have earned for working their normal hours had
they not been on leave, but excluding overtime, shift rates, penalty rates, special rates
or any other payment which might have been payable to the employee as a
reimbursement for expenses incurred; and
(b) an additional loading of 17.5% of the relevant minimum wage for their classification
as set out in this award.
(c) An employee who would have worked on shiftwork had they not been on leave must
be paid a loading equal to that prescribed in clauses 16.9(a) and 16.9(b) or the shift
rates prescribed by this award, whichever is the greater, but not both.’149
[263] In support of this proposition, the CRA directs our attention to a decision of a Full
Bench of the Commission from 2016150 which the CRA submits addressed a similar issue in
three other modern awards.151
[264] AFEI agrees with the CRA, and submitted that the exposure draft should be amended
to ensure employees can only access the greater of the shift loadings or the 17.5% leave
loading, rather than permitting them to ‘double-dip’.152
[265] The Seven Network submitted that, as the provisions contained within clause 16.9 are
subject to both clauses 32.1(d) and 32.2(d), clause 16.9(a) needs to be amended to include a
reference to 31.2(d).153
[266] ABI agreed with the submissions of the CRA and the Seven Network.154
[267] The CPSU submitted that it supports the Seven Network’s proposed variation in so far
as it would vary clause 16 of the exposure draft to exclude clause 32.1(d).155
[268] We will make the variation proposed to the cross-references in clause 16.9 of the
exposure draft to be 32.1(d) instead of 32.2(d).
[269] As part of the second Group 3 Decision, the Full Bench referred a number of matters
pertaining to the expression of penalty rates to the Plain Language Full Bench for
consideration.156 The matters raised in item 25 falls within the scope of that referral so we
will not determine that matter as part of this decision.
149 CRA submission, 21 December 2016, para 4
150 [2016] FWCFB 8463 at [161]–[197]
151 CRA submission, 21 December 2016, para 3
152 AFEI submission, 22 February 2017, para 14
153 Seven Network submission, 18 January 2017, para 3.10
154 ABI submission, 22 February 2017, para 3.1
155 CPSU submission, 22 February 2017, para 7
156 [2017] FWCFB 5536, at [583]–[592]
https://www.fwc.gov.au/documents/decisionssigned/html/2017fwcfb5536.htm
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014259-sub-reply-cpsu-220217.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014-256andors-sub-abinswbc-220217.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014259-sub-7networkandors-180117.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014-256andors-sub-afei-220217.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014259-sub-cra-211216.pdf
https://www.fwc.gov.au/documents/decisionssigned/html/2016fwcfb8463.htm
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014259-sub-cra-211216.pdf
[2018] FWCFB 1548
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Item 26 – Ordinary hours of work and rostering
[270] The Seven Network submits that the references to ‘ordinary hourly rate’ appearing in
Part 7 of the exposure draft should be amended to read ‘minimum hourly rate’.157 No
explanation is given as to the reason for the proposed change.
[271] The term ‘ordinary hourly rate’ is utilised where there are all purpose allowances that
may apply to the relevant employees. The only all purpose allowances in the Broadcasting
Award are found in the Television Broadcasting stream, hence the term ‘ordinary hourly rate’
rather than ‘minimum hourly rate’ is used in Part 7 and not in the other Parts of the exposure
draft. We reject the submission of the Seven Network. Part 7 of the exposure draft will
remain as it is.
Item 29 – Overtime – Television Broadcasting
[272] The Seven Network noted that clause 29.1 of the current award has been excluded
from the exposure draft, and submits that it should be reinstated as clause 31.1 of the
exposure draft and subsequent clauses renumbered accordingly.158 The CPSU regards the
exposure draft’s current drafting as appropriate and opposes the changes sought by the Seven
Network.159
[273] Clause 29.1 of the current award is in the following terms:
‘The hourly rate for overtime purposes is to be calculated by dividing the relevant minimum
weekly wage by 38.’
[274] Both the current award and the exposure draft include tables outlining the minimum
weekly and minimum hourly rates. These tables clearly set out the hourly rate to be utilised
for the purposes of calculating overtime. As such, clause 29.1 of the current award is
unnecessary and will not be re-inserted.
Item 33 – All purpose allowances
[275] The Seven Network submits that the words ‘Except where otherwise specified’ should
be added to the beginning of clause 34.2(a) of the exposure draft and that ‘without these
words there is conflict with the overtime provisions in the Award, which expressly provide
that overtime is calculated on an employee’s minimum rate of pay.’160
[276] The CPSU opposes this submission and submits that wage-related allowances are
included in the calculation of overtime, rendering the proposed amendment unnecessary.161
157 Seven Network submission, 18 January 2017, Annexure A
158 Seven Network submission, 18 January 2017, para 3.15
159 CPSU submission, 22 February 2017, paras 10–11
160 Seven Network submission, 18 January 2017, paras 3.9–13.20; Annexure A, para 34
161 CPSU submission, 22 February 2017, paras 11, 13
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014259-sub-reply-cpsu-220217.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014259-sub-7networkandors-180117.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014259-sub-reply-cpsu-220217.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014259-sub-7networkandors-180117.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014259-sub-7networkandors-180117.pdf
[2018] FWCFB 1548
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[277] We reject the submission of the Seven Network. The allowances paid for all purposes
are to be included in overtime calculations, which is reflected in the use of the term
‘ordinary’ (as opposed to ‘minimum’) hourly rate. If the phrase ‘Except as otherwise
specified’ were to appear at the beginning of the clause it would give the impression that
there are exceptions to the all purpose nature of the specified allowances, which is incorrect.
The clause will remain unaltered.
Item 37 – Meal breaks—technical staff
[278] The CPSU submits that the references to ‘minimum hourly rate’ in clause 40.2 of the
exposure draft should be amended to read ‘ordinary rate of pay’ in order to reflect the
terminology present in clause 38.1 of the Broadcasting Award.162
[279] We reject the CPSU’s submission. The term ‘minimum hourly rate’ has been used to
denote that there are no all purpose allowances that apply to employees within this stream of
the award.
Item 38 – Overtime—Technical staff
[280] At clause 43.1 of the exposure draft, the Commission posed the following question to
the parties:
‘Parties are asked to clarify when overtime is payable consistent with clause 42.1. Is overtime
payable for time worked in excess of rostered daily hours?’
[281] The MEAA submitted ‘that the clause needs to be considered and applied in
conjunction with clause 38’,163 which concerns rosters for technical staff. ABI submit that
‘While it is not immediately apparent on the face of the Broadcasting Award, it appears that
overtime for Technical staff should be assessed with reference to clause 36—Hours of
work—Technical staff.’164
[282] In the absence of any agreed position between the interested parties we do not intend
to make any change to the exposure draft. If any interested party wishes to pursue this matter
as a substantive change they can do so in accordance with the Next steps below.
Item 40 – Hours of work
[283] The Seven Network submits that clauses 48.1 and 48.2 of the exposure draft be
combined so that the clauses better reflect the arrangement of clause 45.1 of the current
award.165 Clause 45.1 of the current award appears as follows:
162 CPSU submission, 21 December 2016, para 7
163 MEAA submission, 21 December 2016, para 11
164 ABI submission, 18 January 2017, para 4.2
165 Seven Network submission, 18 January 2017, para 3.22
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014259-sub-7networkandors-180117.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014-256andors-sub-abinswbc-180117.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014259-sub-meaa-211216.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014259-sub-cpsu-211216.pdf
[2018] FWCFB 1548
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‘45.1 The ordinary hours of work are an average of 38 hours per week to be worked on one
of the following bases by agreement between the employer and the majority of the employees
in a section or unit:
(a) five days per week;
(b) nineteen days in a 20 day work cycle comprised of three weeks of 40 hours and one
week of 32 hours;
(c) nine days in a 10 day work cycle comprised of one week of 42 hours and one week of
34 hours; or
(d) four days in a five day work cycle.
Provided that in the fortnight in which Christmas Day and Good Friday occur, the ordinary
hours will be reduced by eight.’
[284] The difference between the exposure draft and the current award is that, in the
exposure draft, the provision beginning ‘Provided that…’ sits alone as a separate sub-clause.
[285] The provision in question is in a style often described as a ‘hanging paragraph’—that
is, a paragraph that sits at the end of a clause without its own numbering or individual clause
reference. The Commission’s preferred style is to avoid the use of hanging paragraphs where
possible, as it is difficult to make specific reference to such provisions when they lack this
characteristic.
[286] We are satisfied that the version of the provision appearing in the exposure draft does
not change the effect of the provision, yet overcomes the problems associated with the use of
hanging paragraphs. The submission of the Seven Network is rejected.
Item 47 – Motion Picture Production – Overtime
[287] The ADG submits that clause 80.3 of the exposure draft should be amended so that
the references to ‘two hours’ should be deleted and replaced with references to either ‘2.4
hours’ or ‘two hours and 24 minutes’:
‘The apparent error limiting prescheduled overtime to a maximum of two hours a day in clause
76.3 or proposed exposure draft [sic] clause 80.3 could be retrospectively corrected as it
represents a provision not amended at the time of the introduction of the modern award and
the 38 hrs week. Subject to the agreement of the Commission and other parties the reference
to 2 hours would be deleted and replaced with 2.4 hours or 2 hours and 24 minutes. The
industry practice is to not apply the two hour limit and to have pre scheduled overtime up to
2.4 hrs. There does not appear to be any financial consequence.’166
[288] The provision appears in the current Broadcasting Award in the following terms:
‘76.3 Scheduled overtime may be contracted as follows:
166 ADG submission, 13 February 2017, para 17
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[2018] FWCFB 1548
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(a) where a five-day week is worked scheduled overtime up to a maximum of
two hours per day may be contracted for; or
(b) where a six-day week is worked, scheduled overtime up to a maximum of two
hours per day for each day between Monday and Friday inclusive and up to a
maximum of 10 hours on Saturday may be contracted for.’
[289] It is unclear what the ADG means when referring to the ‘apparent error’ in this
provision. The current provision is worded in identical terms to that which appears in the
exposure draft. And the exposure draft and Broadcasting Award are worded in identical terms
to the two relevant pre-reform awards: the Entertainment and Broadcasting Industry –
Motion Picture Production Award 1998167 and the Entertainment and Broadcasting Industry
– Film and Video Production (State) Award.168
[290] We are not persuaded that this is an error of a technical and drafting nature that
requires amending, nor has a merit case been advanced for any substantive change. If any
interested party wishes to pursue this matter as a substantive change they can do so, see the
Next steps below.
Item 48 – Calculations of penalties and provision of rosters
[291] In the exposure draft, the Commission posed a question to interested parties
concerning the wording of clause 81.2:
‘Parties are asked whether clause 81.2 should refer to the minimum rates in clause 13 rather
than the ‘gross agreed remuneration’ – see [2015] FWCFB 4658 at [96].’
[292] The MEAA submitted that the term ‘gross agreed remuneration’ should be retained
and pointed to its submissions on the need to retain terms such as ‘time and a half’ over
‘200% of the minimum hourly rate’, in support.169 Conversely, ABI submitted that the clause
should refer to the minimum rates in clause 13 of the exposure draft rather than the ‘gross
agreed remuneration’.170
[293] In the decision referred to in the question, the Full Bench made the following
observation:
‘Modern awards provide a safety net of minimum entitlements. The modern award prescribes
the minimum rate an employer must pay an employee in given circumstances. Overaward
payments, while permissible, are not mandatory. Further, if an employer chooses to pay an
employee more than the minimum amount payable for ordinary hours worked, the employer is
not required to use that higher rate when calculating penalties or loadings. We are not
persuaded by the submissions advanced by union parties and do not propose to replace the
terms 150% and 200% with time and a half or double time, etc.’171
167 AP780635CRA, clause 20.3
168 AN120198, clause 20.3
169 MEAA submission, 21 December 2016, para 15
170 ABI submission, 18 January 2017, para 4.6
171 [2015] FWCFB 4658 at [96]
https://www.fwc.gov.au/documents/decisionssigned/html/2015fwcfb4658.htm
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014-256andors-sub-abinswbc-180117.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014259-sub-meaa-211216.pdf
https://www.fwc.gov.au/documents/consolidated_awards/an/an120198/asframe.html
https://www.fwc.gov.au/documents/consolidated_awards/ap/ap780635/asframe.html
https://www.fwc.gov.au/documents/decisionssigned/html/2015fwcfb4658.htm
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[294] While we accept that the reference to ‘gross agreed remuneration’ is reflective of the
current award, we have decided that the reference should instead be to the minimum rates in
clause 13. We reiterate our view that modern awards provide a safety net of minimum
entitlements. The exposure draft will be updated to reflect this change as follows:
81.2 Penalty and overtime rates will be based on hourly rates calculated from the
employee’s ordinary time minimum rate in clause 13. on which the employee’s gross
agreed remuneration is based. A divisor of 38 will be used for such calculations.
[295] We note that this amendment to clause 81.2 of the exposure drat does not factor in any
all-purpose allowance payable. If interested parties think further re-drafting is necessary to
account for any other applicable allowances they are invited to provide a comment on this
point, see the Next steps below.
[296] There are no other outstanding issues for this Full Bench to determine with regards to
the Broadcasting Award.
2.12 Car Parking Award 2010
[297] On 3 November 2016 the Commission published an initial exposure draft based on the
Car Parking Award 2010172 (Car Parking Award) along with a comparison document.
[298] Submissions in reply to the exposure draft were received from UV and AFEI.
[299] Initial summaries of submissions were published for the technical and drafting matters
and the substantive issues on 8 March 2017. The Commission conducted a conference on 29
March 2017. A Report to the Full Bench was published on 24 April 2017 referring to the
updated summaries of submissions for the technical and drafting matters and the substantive
issues.
[300] An updated summary of submissions document for the technical and drafting matters
was published on 20 November 2017.
[301] The exposure draft will be updated according to the agreed technical and drafting
variations in the Deputy President’s Report. There are no outstanding technical and drafting
matters for this Full Bench to determine.
[302] If interested parties seek to pursue the outstanding substantive matter, pertaining to
ordinary hours of work and rostering, they should advise the Commission of their intention in
accordance with the Next Steps below.
[303] There are no other matters for this Full Bench to determine in relation to the Car
Parking Award.
172 MA000095
https://www.fwc.gov.au/documents/documents/modern_awards/award/ma000095/default.htm
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/carparking-summary-technical-drafting-201117.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/carparking-summary-substantive-issues.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/carparking-summary-substantive-issues.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/carparking-summary-revised-technical-drafting-revised-190417.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/am2014261-report-240417.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/carparking-summary-substantive-issues-080317.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/carparking-summary-technical-drafting.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/comparison-parking.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/exposure-draft-parking.pdf
[2018] FWCFB 1548
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2.13 Cemetery Industry Award 2010
[304] An exposure draft based on the Cemetery Industry Award 2010173 (Cemetery Industry
Award) was published on 3 November 2016 along with a comparison document setting out
the changes made to the award. Submissions in relation to the exposure draft were received
from the following parties:
ABI;
AFEI;
AWU; and
UV.
[305] ABI and AFEI made submissions in reply and a summary of submissions was
published on 8 March 2017. A conference was held on 29 March 2017 to discuss the issues
set out in the summary of submissions and a report and directions was published on 31 March
2017.
[306] An updated summary of submissions document for technical and drafting matters was
published on 20 November 2017. A number of technical and drafting matters remained
outstanding and require determination. These matters are considered below.
Item 1 – Title and commencement clause
[307] Item 1 of the summary of submissions was in relation to the wording of the Title and
commencement clause. This issue has been dealt with in the 6 July 2017 decision.174
Item 2 – Coverage
[308] Item 2 was in relation to a question posed by the Commission in the exposure draft
about whether the phrase ‘cemetery and crematorium industry’ contained in the coverage
clause should be defined. The parties filed a joint submission on 18 April 2017 stating that
the parties were agreed that the definition of the term was unnecessary.175 We consider the
matter resolved and no further action is required by this Full Bench.
Item 3 – Variations made by Fair Work Commission drafting
[309] Item 3, in relation to clause 5, has been included in all Group 4 exposure drafts in
accordance with plain language principles and will be retained.
Item 4 – Casual employment
[310] The interested parties agreed to retain the current wording and vary, as appropriate,
depending on the outcome of the casual and part-time employment common issues Full
173 MA000070
174 [2017] FWCFB 3433 at [321]–[328]
175 NSWBC and ABI submission, 18 April 2017
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014262-sub-abiandors-180417.pdf
https://www.fwc.gov.au/documents/decisionssigned/html/2017fwcfb3433.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/ma000070/default.htm
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/cemetery-industry-summary-technical-drafting-201117.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014262-report-dir-310317.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/cemetery-industry-summary-technical-drafting.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/comparison-cemetery.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/exposure-draft-cemetery.pdf
[2018] FWCFB 1548
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Bench. The recent decision does not appear to touch on the matters addressed in the re-
wording of the exposure draft.176
[311] In our view the wording of the exposure draft is an improvement and is consistent
with plain language principles. In the absence of any cogent reasons presented by the
interested parties, the exposure draft wording will be retained.
[312] The remaining items were addressed in the revised exposure draft published on
31 March 2017. There have been no further comments from interested parties in relation to
these issues so we propose that changes made in the revised exposure draft be adopted.
[313] There are no other outstanding matters for this Full Bench to determine in relation to
the Cemetery Industry Award.
2.14 Children’s Services Award 2010
[314] On 17 May 2016 the Commission published an initial exposure draft based on the
Children’s Services Award 2010177 (Children’s Award) together with a comparison document
showing the changes made to the structure and language in the award. Interested parties were
provided with an opportunity to file written submissions and submissions in reply on the
drafting and technical issues in the exposure draft. Submissions were received from the
following parties:
ABI;
Australia Childcare Alliance (ACA);
AFEI;
Ai Group;
Business SA;
Community Connections Solutions Australia (CCSA);
Department for Education and Child Development – South Australia (DECD);
G8 Education Ltd (G8 Education); and
UV.
[315] A final report was published on 27 July 2017 setting out the matters dealt with at
conferences held on 7 February, 27 March and 1 May 2017. A number of issues raised were
resolved at the conferences. A summary of submissions document was initially published on
30 November 2016. Revised exposure drafts along with a summary of submissions document
were published on 6 January 2017 and 17 February 2017. The summary of submissions
document was finalised and published on 19 April 2017. A further revised exposure draft was
published on 19 July 2017.
[316] The updated summary of technical and drafting matters and substantive matters were
published on 22 November 2017.
176 [2017] FWCFB 3541
177 MA000120
https://www.fwc.gov.au/documents/documents/modern_awards/award/ma000120/default.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2017fwcfb3541.htm
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/childrens-summary-substantive-221117.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/children-services-summary-technical-drafting-221117.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/exposure-draft-childrens-furtherrevised.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014263-finalreport-270717.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/comparison-childrens.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/exposure-draft-childrens.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/exposure-draft-cemetery-revised-310317.pdf
[2018] FWCFB 1548
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[317] We are satisfied that it is appropriate to make the changes agreed to by the interested
parties as outlined in the final report to the Full Bench of 27 July 2017.
[318] Items 7 and 9 of the summary of submissions (republished on 19 April 2017) remain
outstanding and require determination. These matters are considered below.
Technical and Drafting matters
Item 7 – Coverage
[319] UV proposed to amend clause 4.1 of the exposure draft to clarify award coverage for
staff employed in child care centres who are wholly engaged in clerical work for which the
award does not provide a classification.178 UV proposes that clause 4.1 of the exposure draft
should be amended as follows:
‘By inserting a new clause 4.1(e) as follows:
(e) Clerks Private Sector Award 2010.’179
[320] UV submitted that there is a history of industrial disputes regarding the classification
of these workers, who are often classified as support workers under the Children’s Award but
are properly classified under the Clerks—Private Sector Award 2010180 (Clerks Award) as
noted in United Voice v Cuddlepie Early Childhood Learning Centre.181
[321] AFEI182 and ABI opposed this variation.183 ABI submitted that the proposed
amendment will not have the intended effect as the primary functions of child care centres are
not covered by the Clerks Award.184
[322] Ai Group and AFEI submitted that this proposal is a substantive change to the award.
Ai Group submitted that the basis for UV’s proposed amendment is unclear and they further
drew the Commission’s attention to a claim made by CCSA to vary the Clerks Award to
exclude from its coverage employers covered by the Children’s Award.185 CCSA confirmed
at the conference on 7 February 2017 before Commissioner Cirkovic that this claim was
withdrawn on 30 September 2016.186
178 UV submission, 30 June 2016
179 UV submission, 6 October 2016
180 MA000002
181 [2015] FWC 6661
182 AFEI submission in reply, 10 May 2016
183 ABI submission in reply, 22 July 2016
184 ABI submission in reply, 22 July 2016
185 Ai Group submission, 25 July 2016
186 Transcript, 7 February 2017 at PN101–PN108
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/07022017-am2014263.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014251-andors-replysub-aig-250716.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014251-replysub-abi-220716.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014251-replysub-abi-220716.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014250andors-sub-afei-100516.pdf
https://www.fwc.gov.au/documents/decisionssigned/html/2015fwc6661.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/ma000002/default.htm
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014252-sub-uv-061016.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014250andors-sub-uv-300616.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/children-services-summary-technical-drafting-revised-190417.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014263-finalreport-270717.pdf
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[323] At the conference before Commissioner Cirkovic on 7 February 2017, UV confirmed
that this proposal should not be the subject of these proceedings and that the proposal was a
substantive issue.187
[324] UV, or any other interested party, has until 19 April 2018 to advise the Commission
about whether this substantive variation will be pursued, see the Next steps below.
Item 9 – Calculation of casual loading
[325] Ai Group submitted that the current award clause 10.5(a) does not calculate the casual
loading on an employee’s ordinary hourly rate inclusive of an all purpose allowance, but on
the hourly rate payable to a full-time employee as per the relevant classification in the
minimum wages clause. On this basis, Ai Group submitted that the current award provides
for a calculation of the casual loading on the minimum hourly rate and if the all purpose
allowance is payable to an employee, then the allowance is added to the casually loaded
rate.188 Ai Group submitted that clause 11.1 of the exposure draft is a substantive change,
departing from the current terms of the Children’s Award. Clause 10.5(a) in the Children’s
Award reads as follows:
‘(a) A casual employee is an employee engaged as such and must be paid the hourly rate
payable for a full-time employee for the relevant classification in clause 14—
Minimum plus a casual loading of 25%.’
[326] UV submitted189 that Ai Group’s reasoning is not supported by the text of the current
Children’s Award and contradicts previous decisions of the Commission, including the July
2015 Decision.190
[327] In the July 2015 Decision, the Full Bench observed that the term ‘ordinary hourly
rate’ is used in contrast to ‘minimum hourly rate’ in affected awards to make clear that all
purpose allowances must be added to the minimum rate of pay before calculating any penalty
rate. In affected awards, penalties and loadings are expressed as a percentage of the ordinary
hourly rate (for example, ‘overtime is paid at 150% of the ordinary hourly rate’), to make
clear that an all purpose allowance to which an employee is entitled must be added to the
minimum rate before calculating penalties or loadings. That is, there is a compounding
effect.191
[328] The Full Bench determined that there be a consistent rule for the calculation of casual
loading which should apply across all awards and that the general approach to casual loading
in the exposure drafts will remain, with casual loading expressed as 25% of the ordinary
hourly rate in the case of awards which contain any all purpose allowances, and as 25% of the
minimum hourly rate in awards which do not contain any such allowances.192
187 Transcript, 7 February 2017 at PN90–PN98
188 Ai Group submission, 30 June 2016
189 UV submission, 13 March 2017
190 [2015] FWCFB 4658
191 [2015] FWCFB 4658 at [42]–[44]
192 [2015] FWCFB 6656 at [110]
https://www.fwc.gov.au/documents/decisionssigned/html/2015fwcfb6656.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2015fwcfb4658.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2015fwcfb4658.htm
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014263-sub-uv-130317.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014251-sub-aig-300616.pdf
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[329] The Full Bench also noted that issues concerning whether any existing allowance
should retain its ‘all purpose’ designation or should be payable on some different basis may
be considered on an award-by-award basis during the course of the Review.193
[330] At clause 15.6 of the Children’s Award (clause 17.2(a) of the exposure draft) the
award provides an all purpose allowance:
‘15.6 Qualifications allowance
A Director or Assistant Director who holds a Graduate Certificate in Childcare Management
or equivalent will be paid an all purpose allowance, calculated at 5% of the weekly rate for an
Assistant Director (Children’s Services Employee Level 5.4).’
[331] On 24 March 2017, Ai Group submitted that it was content for this matter to be
determined on the papers.194 There is nothing before us that persuades us to depart from the
general approach adopted in the September 2015 decision. The qualifications allowance in
clause 15.6 of the Children’s Award applies for all purposes and therefore the casual loading
will be expressed as 25% of the ordinary hourly rate.
Substantive matters
[332] There were a number of proposals to vary the Children’s Award involving substantive
changes to the award. A document summarising those proposals was first published on 11
December 2015. Some of those proposals are no longer being pressed. The summary
document was further revised and republished in its final form on 19 April 2017. The
summary highlights the items that have been withdrawn and that items S2 to S7A, S9, S11A,
S12, S14, S16, S19 to S20A, S23, S25, S26 and S30 remain outstanding.
[333] If interested parties wish to pursue the outstanding substantive variations noted in the
summary of submissions published on 19 April 2017, the matters will be referred to a
specially constituted Full Bench. Interested parties are to advise the Commission about
whether these matters are being pursued by 19 April 2018, see the Next steps below.
[334] A revised exposure draft reflecting the agreed position of the interested parties will be
published shortly and parties will be provided with a further opportunity to comment.
2.15 Dry Cleaning and Laundry Industry Award 2010
[335] On 3 November 2016 the Commission published an initial exposure draft based on the
Dry Cleaning and Laundry Industry Award 2010195 (Dry Cleaning Award) together with a
comparison document showing the changes made to the structure and language in the award.
Interested parties were provided with an opportunity to file written submissions and
193 [2015] FWCFB 6656 at [109]
194 Ai Group submission, 24 March 2017
195 MA000113
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000113/default.htm
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014263-sub-aig-240317.pdf
https://www.fwc.gov.au/documents/decisionssigned/html/2015fwcfb6656.htm
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/comparison-laundry-28102016.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/exposure-draft-laundry.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/childrens-summary-substantive-issues-further-revised.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/childrens-summary-substantive-issues-further-revised.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/childrens-summary-substantive-issues-further-revised.pdf
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submissions in reply on the drafting and technical issues in the exposure draft. Submissions
were received from the following parties:
ABI;
Textile Clothing & Footwear Union of Australia (TCFUA);
AFEI;
AWU; and
UV.
[336] A draft report was published on 19 April 2017 setting out the matters dealt with at a
conference held on 27 March 2017. A number of issues raised were resolved at the
conference. Updated draft reports were published on 9 May 2017 and 21 June 2017. A
revised exposure draft along with a summary of submissions document was published on 15
May 2017. A further revised exposure draft was published on 20 July 2017. The draft report
of 21 June 2017 called for further comments about the contents of the report before it was
finalised.
[337] ABI subsequently wrote to the commission to provide updates to the draft report
following discussion amongst the interested parties.196 The AWU also provided the
Commission with a submission setting out the matters that remain outstanding.197
[338] We are satisfied that it is appropriate to make the changes agreed to by the interested
parties as outlined in the Final Report to the Full Bench of 26 September 2017 and the ABI’s
correspondence of 29 June 2017.
[339] We note that items 24–26 regarding ‘Transfer to lower paid job on redundancy’,
‘Employee leaving during redundancy notice period’ and ‘Job search entitlement’ were
subject to an agreed position between the interested parties. These clauses are subject to the
plain language re-drafting process so we do not propose to vary the exposure draft at this
time.
[340] Items 19, 21, 22 and 31 of the summary of submissions (republished on 20 November
2017) remained unresolved and require determination.
Item 19 – Recall to work overtime
[341] The AWU proposed the following change to clause 22.5 of the exposure draft:
‘22.5 Recall to work overtime
An employee recalled from home to work after having left the premises of the employer will
be paid for all time worked, with a minimum payment of four hours.’
[342] The AWU submitted that the inclusion of the words “from home” may negate an
employee’s entitlement to the four hour minimum payment if they did not return home after
196 ABI correspondence, 29 June 2017
197 AWU submission, 29 June 2017
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014264-sub-awu-290617.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am20142264-corr-abinswbc-corr-fwc-300617.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/dry-cleaning-summary-technical-drafting-201117.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014264.report-260917.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2016264-draftreport-210617.pdf
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completing work. The TCFUA supported the AWU’s amendment in principle. AFEI opposed
the amendment on the basis that it would be a substantive change.
[343] The current Dry Cleaning Award provision, clause 22.4, is in identical terms to the
exposure draft. As such, we agree that the variation proposed by the AWU would be a
substantive variation.
[344] We have considered a number of “recall to work” provisions that appear in other
modern awards and agree that the apparent requirement for an employee to be at home when
recalled to duty is neither unique nor standard.
[345] In the Cleaning Services Award 2010198 the recall to work provision does not require
an employee to return home:
‘28.8 Where an employee, following the completion of their ordinary hours leaves the
workplace and is recalled to duty at any workplace of the employer, overtime
payments will apply for a minimum of two hours. However the interval between the
completion of ordinary hours and the commencement of overtime will not be
regarded as time worked.’
(emphasis added)
[346] However, in the General Retail Industry Award 2010199, employees are entitled to an
allowance in circumstances where they are recalled to work after returning home:
‘20.10 Recall allowance
(a) Unless otherwise agreed an employee recalled to work for any reason, before or
after completing their normal roster or on a day on which they did not work, will
be paid at the appropriate rate for all hours worked with a minimum of three
hours on each occasion.
(b) The time worked will be calculated from the time the employee leaves home
until the time they return home.’
[347] Given that there is no single approach across modern awards; we do not think it is
appropriate to vary the exposure draft. If the AWU, or any other party, wish to pursue a
substantive variation to the recall provisions can do so in accordance with the Next Steps
below.
Item 21 – Time off instead of payment for work on a Saturday, Sunday or public holiday
[348] The AWU submitted that clause 23.4 of the exposure draft should be varied to include
an additional provision to guarantee payment on termination to an employee if the time off
has not been taken. The AWU suggested that the wording used in clause 22.3(h) of the
exposure draft (or 22.2(h) of the current modern award) appears suitable.
198 MA000022
199 MA000004
https://www.fwc.gov.au/documents/documents/modern_awards/award/ma000004/default.htm
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[349] The current Dry Cleaning Award provision, clause 22.5(d), is in identical terms to the
exposure draft. As such, the variation proposed by the AWU would be a substantive
variation.
[350] Our provisional view is that the variation proposed is appropriate and could be
achieved by replicating clause 22.2(h) of the Dry Cleaning Award. For example by inserting
a new clause 23.4(e) of the exposure draft:
‘(e) If, on the termination of the employee’s employment, time off for overtime worked
by the employee to which clause 23.4 applies has not been taken, the employer must
pay the employee for the overtime at the overtime rate applicable to the overtime
when worked.’
[351] Interested parties are invited to comment on our provisional view by 19 April 2018,
see the Next steps below.
Item 22 – Definitions
[352] The AWU raised concerns about clause 24.1 of the exposure draft because it does not
provide a span of hours for all shifts. The AWU proposed the following variation to the
exposure draft:200
‘24.1 Definitions
(a) Morning shift—dry cleaning means a shift commencing before 7.00 am and finishing
after midday
(b) Morning shift—laundry means a shift commencing before between 4.00 am and 6.00
am.
(c) Afternoon shift means a shift finishing after 6.00 pm and at or before midnight.
(d) Night shift—dry cleaning means a shift finishing after midnight and at or before 8.00
am.
(e) Night shift—laundry means a shift finishing after midnight and at or before 8.00 am; or a
shift commencing before 4.00 am.’
[353] The interested parties agreed that a variation was necessary but did not agree on the
form a variation should take. The Commission wrote to interested parties on 8 September
2017 to seeking comment on the following draft variation:201
‘24.1 Definitions
(a) Morning shift—dry cleaning means a shift commencing before 7.00 am and finishing
after midday.
200 AWU submission, 29 June 2017
201 FWC correspondence, 8 September 2017
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014264-corr-fwc-080917.pdf
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(b) Morning shift—laundry means a shift commencing before 6.00 am and finishing after
midday.
(c) Afternoon shift means a shift finishing after 6.00 pm and at or before midnight.
(d) Night shift means a shift finishing after midnight and at or before 8.00 am.’
[354] AFEI objected to the draft variation to the shift definitions on the basis that it would
be a substantive variation.202 The TCFUA objected to the draft variation on the basis that it
may result in some employees missing out on either a night or morning shift allowance.203
[355] The exposure draft clause 24.1 provides the same shift definitions as the current
modern award clauses 23.2–23.4. The exposure draft does, however, separate the sub-clauses
for the two employment categories with regards to morning shifts.
[356] The concern raised by the TCFUA in response to the re-drafted clause 24.1(b)
(laundry employees) applies equally to the existing terminology in clause 24.1(a) (dry
cleaning employees). It appears that this gap identified by the TCFUA has always existed in
the modern award in so far as it applies to dry cleaning employees, so it may be necessary to
consider re-drafting the entire clause. It may also be necessary to consider what shift lengths
and hours of the day are intended to be captured by each definition and whether having a
range of hours for commencing and completing a shift, as per the AWU’s draft, may clarify
the operation of the clause.
[357] In the absence of any agreement amongst the interested parties, we will not make any
change to the exposure draft. Interested parties may pursue substantive re-drafting of this
provision as set out in the Next steps below.
Item 31 – Full-time and part-time adult laundry employees
[358] The AWU raised concerns about the inclusion of rates of pay for ordinary hours
worked on a Saturday in the summary of wages tables in Schedule 3 of the exposure draft
(clauses C.2.1 and C.3.2) and submitted that the Dry Cleaning Award does not allow for
laundry employees to perform ordinary hours on a Saturday.
[359] The interested parties have not been able to come to an agreed position as to the
applicable rate for work performed on Saturdays.
[360] The current Dry Cleaning Award provision, clause 21.2(a), provides as follows:
‘(a) The ordinary hours of work will average 38 hours per week. Ordinary hours may be
worked Monday to Friday between the spread of hours of 6.00 am to 6.00 pm and
may be worked in one of the following arrangements’
(emphasis added)
[361] The exposure draft is written in similar terms:
202 AFEI correspondence, 20 September 2017
203 TCFUA correspondence, 20 September 2017
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‘14.2 Ordinary hours may be worked Monday to Friday between the spread of hours of
6.00 am to 6.00 pm and may be worked in one of the following arrangements’
(emphasis added)
[362] Our provisional view is that there is no scope for laundry workers to perform ordinary
hours of work on a Saturday. As such, the Summary of Hourly Rates of Pay tables in clause
C.2.1 and C.3.2 of the exposure draft will be updated to remove the two columns that list
Saturday rates.
[363] It appears to us that the tables in clauses C.2.2 and C.3.3 adequately capture the rates
of pay for hours worked on a Saturday. If parties disagree, they can propose any further
variations to the rates tables by 19 April 2018, see the Next steps below.
Item 9 – Ordinary hours of work—dry cleaning workplaces
[364] The AWU originally made a submission that the ordinary hours of work in exposure
draft clause 13.1 should be varied as follows:
‘13.1 The ordinary hours of work will average be 38 hours per week.’
[365] The AWU subsequently withdrew its submission; however we have considered the
history of the clause and whether it creates any ambiguity (See Attachment B).
[366] The ordinary hours of work for laundry stream employees (exposure draft clause 14.1)
also provides for an average of 38 hours per week. The subsequent clause provides a
methodology for averaging hours over a four week cycle. Conversely, there is no averaging
mechanism for dry cleaning stream employees.
[367] The AWU’s submission was opposed by AFEI who submitted that employers
commonly use the averaging mechanism for laundry workplaces to calculate the average
hours for dry cleaning workplaces. This seems, to us, to be an unintended outcome for dry
cleaning workplaces.
[368] We consider that the lack of an averaging mechanism for dry cleaning workplaces
creates an ambiguity and should be amended. We consider that there are two options for
rectifying the ambiguity: either to develop and insert an averaging cycle or to remove the
word “average”.
[369] Inserting an averaging cycle would be a substantive variation that would need to be
referred to a separate Full Bench for consideration. The outcome of such proceedings may be
to expand the application of the averaging cycle that currently applies to laundry workplaces
or may result in the development of a separate clause for dry cleaning workplaces.
[370] The commission wrote to the interested parties on 8 September 2017 to seek
clarification of their positions with regards to either option.204 The AWU205, the TCFUA206
204 FWC correspondence, 8 September 2017
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and UV207 agreed that removing the word “average” would clarify the clause. ABI208 and
AFEI209 opposed the variation on the basis that it would be a substantive variation.
[371] We do not agree that removing the word “average” would be a substantive variation
because, as it stands, without any averaging cycle or corresponding overtime provisions, the
word has no practical impact on the operation of the award. The only way the clause can
currently operate is to require 38 hours of work per week because there is no scope to average
hours over any defined period of time.
[372] The exposure draft will be varied by removing the word “average” and inserting the
word “be” as per the AWU’s draft in [364] above.
[373] If interested parties wish to pursue the outstanding substantive variations noted in the
summary of submissions published on 31 May 2017, the matters will be referred to a
separately constituted Full Bench. Interested parties are invited to advise the Commission
about whether these matters are being pursued by 19 April 2018, see the Next steps below.
[374] There are no other outstanding matters with regards to the Dry Cleaning Award.
2.16 Educational Services (Teachers) Award 2010
[375] An initial exposure draft based on the Educational Services (Teachers) Award 2010210
(Teachers Award) was published on 13 May 2016 along with a comparison document.
[376] Interested parties made submissions in response to the exposure draft and a summary
of submissions was published on 30 November 2016. Submissions were received from:
ABI;
Independent Education Union of Australia and another (jointly IEU);
UV; and
AFEI.
[377] Commissioner Cirkovic conducted a number of conferences with interested parties on
30 January 2017, 7 March 2017 and 30 March 2017. The Commissioner provided a Report to
the Full Bench on 27 July 2017. The report set out the technical and drafting matters that had
been withdrawn or resolved between the parties.
[378] An updated summary of submissions was published for the technical and drafting
matters on 21 November 2017. The outstanding item is considered below.
205 AWU correspondence, 8 September 2017
206 TCFUA correspondence, 20 September 2017
207 UV correspondence, 8 September 2017
208 ABI correspondence, 20 September 2017
209 AFEI correspondence, 20 September 2017
210 MA000077
https://www.fwc.gov.au/documents/documents/modern_awards/award/ma000077/default.htm
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014264-corr-afei-200917.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014264-corr-abinswbc-200917.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/am2014264-corr-uv-080917.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014264-corr-tcfua-200917.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014264-corr-awu-080917.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/educational-services-teachers-summary-technical-drafting-211117.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014266-finalreport-270717.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014266-finalreport-270717.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/am2014266-summary-technical-drafting.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/am2014266-summary-technical-drafting.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/comparison-educational-services-teachers.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/exposure-draft-educational-services-teachers.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/drycleaning-summary-substantive-issues.pdf
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Item 25 – Summary of Rates of Pay
[379] Item 25, concerns the summary of hourly rates of pay. IEU and AFEI agreed that
hourly rates of pay are not appropriate in the Teachers Award because the rates are not
calculated by reference to a 38 hour work week.
[380] Based on the submissions provided, we agree that it is not appropriate to provide a
schedule of hourly rates of pay for full-time and part-time employees. The entire clause B.1
will be deleted from the exposure draft. On that basis, the table in clause 17.1 of the exposure
draft will also be varied to remove hourly rates of pay.
[381] A separate Full Bench (AM2015/6) was convened to determine a number of
substantive matters in a number of education sector awards. Interested parties are to advise
the Commission if they seek to pursue any substantive matters that have not been determined
by the other Full Bench by 19 April 2018, see the Next steps below.
[382] There are no other outstanding issues for this Full Bench to determine with regards to
the Teachers Award.
2.17 Electrical, Electronic and Communications Contracting Award 2010
[383] On 23 May 2016 the Commission published an initial exposure draft based on the
Electrical, Electronic and Communications Contracting Award 2010211 (Electrical
Contracting Award) along with a comparison document.
[384] Submissions and submissions in reply were received from a number of parties
including:
CEPU – Electrical, Energy and Services Division (CEPU);
Fire Protection Association Australia (FPAA);
National Electrical and Communications Association (NECA);
Business SA;
National Electrical and Communications Association – SA (NECA-SA);
Master Electricians Australia (MEA);
Ai Group; and
ABI.
[385] Initial summaries of submissions for the technical and drafting matters and the
substantive issues were published on 30 November 2016 and 6 January 2017 respectively.
[386] Subsequently a number of conferences have been convened by the Commission.
Deputy President Lawrence prepared an initial Report to the Full Bench on 30 November
2016. Deputy President Gostencnik subsequently prepared a further Report.
[387] An updated summary of the substantive issues was published on 8 August 2017. An
updated summary of technical and drafting matters was published on 23 November 2017.
211 MA000025
https://www.fwc.gov.au/documents/documents/modern_awards/award/ma000025/default.htm
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/electrical-electronic-summary-technical-drafting-231117.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/electrical-summary-substantive-issues-revised-080817.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014265-draft-report-240417.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014265-report-to-full-bench.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/electrical-summary-substantive-issues.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/am2014265-summary-technical-drafting.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/comparison-electrical-contracting.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/exposure-draft-electrical-contracting.pdf
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[388] The interested parties agreed to a number of technical and drafting variations and the
exposure draft will be updated to reflect those agreed changes. There are a number of matters
that remained outstanding and require determination by this Full Bench.
Item 15A – Hours of work
[389] FPAA has sought a number of variations to the hours of work provisions in clause 13
of the exposure draft. The item has been re-classified as Item S6B of the substantive matters.
Item 18 – Rest Break
[390] The Commission posed a question about whether the rest break provision in clause
13.9 only applies to day workers. The interested parties did not agree on an interpretation of
the existing clause but agreed that there should be no change to the exposure draft. On that
basis, we will not amend the exposure draft.
Item 42 – Proposed new shiftwork clause
[391] Following further consultations between the interested parties, the FPAA provided a
report back.212 The correspondence sought to clarify the scope of the variations sought and
noted that, in the FPAA’s view, the variations were not substantive in nature. Ai Group and
ABI had previously raised concerns about the proposed variations and there has been no
further correspondence advising that their objections have been withdrawn.
[392] In the absence of a consent position between the interested parties, it is our
provisional view that this matter is closely aligned with item 15A mentioned above.
Accordingly it is appropriate to re-classify this item as a substantive matter to be determined
by separate Full Bench. Interested parties may advise the Commission by 19 April 2018 if
the matter can be resolved as part of the technical and drafting stage as per FPAA’s draft
determination or otherwise.213
Items 47 – 65 – various matters in Schedule B
[393] Given the overlapping nature of the submissions made in relation to Schedule B, all
proposed variations will be referred to a separately constituted Full Bench for consideration
and determination.
[394] There are no other matters for this Full Bench to determine with regards to the
Electrical Contracting Award.
212 FPAA correspondence, 3 March 2017
213 FPAA draft determination, 3 March 2017
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2.18 Fast Food Industry Award 2010; General Retail Industry Award 2010; Hair and
Beauty Industry Award 2010; Hospitality Industry (General) Award 2010; Restaurant
Industry Award 2010
[395] The technical and drafting matters in the Fast Food Industry Award 2010;214 the
General Retail Industry Award 2010;215 the Hair and Beauty Industry Award 2010;216 the
Hospitality Industry (General) Award 2010;217 and the Restaurant Industry Award 2010218
have been referred to the Plain Language Full Bench to determine as part of the re-drafting
process.
[396] Any outstanding substantive matters will be dealt with by a separate Full Bench
following the plain language process.
2.19 Food, Beverage and Tobacco Manufacturing Award 2010
[397] An initial exposure draft based on the Food, Beverage and Tobacco Manufacturing
Award 2010219 (Food Manufacturing Award) was published on 16 November 2016. A
summary of submissions was published on 8 March 2017.
[398] A final Report was provided to the Full Bench on 7 June 2017. The exposure draft
will be amended as per the changes agreed to in the Report. An updated summary of
submissions for the technical and drafting matters was republished on 20 November 2017.
[399] A number of technical and drafting amendments remain outstanding and require
determination.
Items 9 and 10 – Facilitative provisions
[400] Items 9 and 10 refer to the list of facilitative provisions in clause 7.2 of the exposure
draft.
[401] The list of facilitative provisions has been raised in a number of awards and is dealt
with at [756].
Item 18 –Full-time employment
[402] Item 18 refers to Full-time employment. The Commissioner’s Report to the Full
Bench expressed the provisional view that there was no need to include the words ‘in this
award’ but consistency with other awards would be considered.
214 MA000003
215 MA000004
216 MA000005
217 MA000009
218 MA000119
219 MA000073
https://www.fwc.gov.au/documents/documents/modern_awards/award/ma000073/default.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/ma000119/default.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/ma000009/default.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/ma000005/default.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/ma000004/default.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/ma000003/default.htm
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/food-beverage-summary-technical-drafting-201117.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014268-report-070617.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/food-beverage-tobacco-summary-technical-drafting.pdf
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[403] There is no consistent phrasing of the “types of employment” clauses across modern
awards or in the plain language re-drafting process.
[404] The equivalent clause in the current Food Manufacturing Award is phrased:
‘11. Full-time employment
Any employee not specifically engaged as a part-time or casual employee is for all purposes
of this award a full-time employee, unless otherwise specified in this award.’
[405] The wording proposed in the exposure draft of the Food Manufacturing Award is:
‘8. Full-time employment
Any employee not specifically engaged as a part-time or casual employee is for all purposes
of this award a full-time employee, unless otherwise specified.’
[406] The exposure draft titled Manufacturing and Associated Industries and Occupations
Award 2016 adopts similar terminology:
‘6.2 Full-time employment
Any employee not specifically engaged as being a part-time or casual employee is for all
purposes of this award a full-time employee, unless otherwise specified in this award.’
[407] We agree with the Commissioner’s provisional view that the phrasing in the exposure
draft is clearer and, accordingly, we do not intend to vary the exposure draft.
Item 27 – Apprentices
[408] Item 27 is the AMWU’s proposal to amend the Apprentice provisions in clause 11 of
the exposure draft to include a probation period for apprentices. The AWU and Ai Group do
not oppose the variation proposed by the AMWU.
[409] Probation periods are discussed at some length above at [50]. For those reasons, no
probation period clause will be inserted into the exposure draft.
Item 33 – Adult employee minimum wages
[410] Item 33 is Ai Group’s submission about the minimum weekly wages column in clause
14.1 of the exposure draft. Ai Group submitted that the clause could be misunderstood to
mean that all employees are entitled to the rates prescribed in the table. There was no
consensus amongst the interested parties about whether to adopt Ai Group’s proposal.
[411] Clause 14.1(b) clarifies that the minimum wages expressed in clause 14.1(a) are based
on 38 hours of work. In our view, the exposure draft has been drafted consistently with the
current award provisions and we do not intend to adopt the variations suggested by Ai Group
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at this time. This matter will be given further consideration by the Plain Language Full
Bench.220
Item 35 – Allowances and Special Rates
[412] Item 35 concerns the AMWU’s submissions about amendments to the allowances in
clause 20 of the exposure draft. We agree with Ai Group’s submission that the approach to
drafting the allowances clause is consistent with the approach taken in other exposure drafts.
We do not intend to adopt the variations suggested by the AMWU.
Item 45 – Rates for shiftworkers
[413] Item 45 is Ai Group’s submission about shiftworker rates.221 Ai Group submitted that
clauses 24.1(e) and 24.3(d) of the exposure draft represent a substantive variation to clause
31.3(d) of the current Food Manufacturing Award because it may require the payment of the
allowance for all ordinary hours worked during an engagement on permanent night shifts
including ordinary hours that do not form part of a night shift.
[414] Clause 31.3(d) of the Food Manufacturing Award currently says:
‘(d) An employee who:
(i) during a period of engagement on shift, works night shift only; or
(ii) remains on night shift for a longer period than four consecutive weeks; or
(iii) works on a night shift which does not rotate or alternate with another shift or
with day work so as to give the employee at least one third of their working
time off night shift in each shift cycle,
must, during such engagement, period or cycle, be paid 30% extra for all time worked
during ordinary working hours on such night shift.’
[415] Clause 24.1(e) of the exposure draft says:
‘(e) permanent night shift means a period of engagement on shiftwork where an
employee:
(i) works night shift only;
(ii) remains on night shift for a longer period than four consecutive weeks; or
(iii) works on a night shift which does not rotate or alternate with another shift or
with day work so as to give the employee at least one third of their working
time off night shift in each shift cycle’
[416] Clause 24.3(d) of the exposure draft has been drafted as follows:
220 [2018] FWC 1544
221 Ai Group submission, 18 January 2017, paras179–181
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014258andors-sub-aig-180117.pdf
https://www.fwc.gov.au/documents/decisionssigned/html/2018fwc1544.htm
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‘(d) An employee who works on permanent night shift must be paid 130% of the ordinary
hourly rate for all time worked during ordinary working hours on an engagement,
period or cycle on permanent night shifts.’
[417] We disagree with Ai Group’s submission that the exposure draft represents a
substantive variation to the existing Food Manufacturing Award provisions. The drafting and
introduction of clause 24.3(d) of the exposure draft is intended to clarify the definition of
permanent night shift and thereby clarify the applicable loading. We do not intend to vary the
exposure draft.
Item 47 – Annual leave loading
[418] Item 47 concerned a question raised by the FWO about how to calculate the 17.5%
annual leave loading and whether it was supposed to be calculated on a daily basis or over the
entire period of annual leave.222
[419] There was no unanimous view by the interested parties. We agree that clause 25.5 of
the exposure draft (clause 34.5 of the current Food Manufacturing Award) may be
ambiguous. We note Commissioner Lee’s comment that this issue has been identified in a
number of modern awards. As such this matter requires a consistent approach and is
discussed further below at [760]–[762].
[420] A summary of submissions about the substantive matters raised about the Food
Manufacturing Award was published on 8 March 2017. If interested parties intend to pursue
the outstanding substantive matters further submissions can be made in accordance with the
directions in the Next steps below.
[421] There are no other outstanding issues for this Full Bench to determine with regards to
the Food Manufacturing Award.
2.20 Funeral Industry Award 2010
[422] The Commission published an exposure draft based on the Funeral Industry Award
2010223 (Funeral Award) along with a comparison document on 16 November 2016.
Submissions and submissions in reply in relation to the exposure draft were received from the
following parties:
ABI;
AFEI;
AWU; and
UV.
[423] A summary of submissions relating to technical and drafting matters was published on
8 March 2017 and a revised summary of submissions was later published on 20 November
222 FWO correspondence, 2 March 2015
223 MA000105
https://www.fwc.gov.au/documents/documents/modern_awards/award/ma000105/default.htm
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014217andors-corr-fwo-020315.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/funeral-industry-summary-technical-drafting-201117.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/funeral-industry-summary-technical-drafting.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/comparison-funeral-industry.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/exposure-draft-funeral.pdf
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2017. A Report was published on 31 March 2017 following a conference held on 29 March
2017 to discuss the drafting and technical matters in relation to the review of the Funeral
Award. A revised exposure draft was published on 31 March 2017.
Item 1 – Title and commencement clause
[424] Item 1 of the summary of submissions was in relation to the wording of the Title and
commencement clause. This issue has been dealt with in the 6 July 2017 decision.224
Items 2, 4, 11, 9, 13 and 14
[425] These items were agreed by the interested parties and the changes were made to the
revised exposure draft. We are satisfied that it is appropriate to adopt the agreed changes.
Item 3 – Variations made by Fair Work Commission drafting
[426] Item 3, in relation to clause 5, has been included in all Group 4 exposure drafts in
accordance with plain language principles and will be retained.
Item 5 – Spread of ordinary hours of work
[427] Item 5 relates to the spread of hours clause and the objection by ABI to the removal of
the phrase ‘any or all days’ and the word ‘inclusion’. ABI subsequently withdrew their
objection225 and we propose retaining the wording in the exposure draft.
Item 6 – Rest after early morning work
[428] Parties confirmed that the rest break referred to in item 6 may be paid or unpaid
depending on an employee’s roster. If an employee is rostered to work ordinary hours that
were due to commence before they have had eight hours off work since finishing their
previous shift then the employee will be paid for those ordinary hours. The wording of clause
14.1 in the revised exposure draft will be retained.
Items 7 and 8 – Rest periods and meal break
[429] Parties also confirmed that the rest break referred to at item 7 was paid and the meal
break at item 8 was unpaid. The wording of clauses 14.2 and 14.3 in the revised exposure
draft will be retained.
Item 10 – Uniform allowance
[430] Item 10, in relation to clause 16.3(c) of the exposure draft, was previously considered
a technical and drafting matter and has since been reclassified as a substantive matter. If
pursued, the substantive matters in this award will be referred to a separately constituted Full
Bench for determination.
224 [2017] FWCFB 3433 at [321]–[328]
225 ABI submission, 20 April 2017
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014269-sub-abi-200417.pdf
https://www.fwc.gov.au/documents/decisionssigned/html/2017fwcfb3433.htm#P2158_181966
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/exposure-draft-funeral-revised-310317.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014269-report-dir-310317.pdf
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Item 12 – Overtime for shiftworkers
[431] Item 12 refers to a question in the exposure draft asking whether the ‘applicable rate’
contained in the overtime clause was the ‘minimum hourly rate’ or the shiftwork rate. At the
conference it was indicated that this matter would be dealt with on the papers.226
[432] AFEI submitted that the rate was the minimum hourly rate and proposed changing the
wording of the clause to ‘applicable minimum hourly rate’.227 In support of this submission,
AFEI pointed to the afternoon shift penalties in clause 18.5 of the exposure draft which refers
to the minimum hourly rate and submitted that both the current Funeral Award and the
exposure draft ‘clearly contemplate’ that overtime penalties are payable in different
circumstances than those in which shift loadings apply.228
[433] ABI also submitted that the ‘applicable rate’ referred to in the Funeral Award is the
minimum hourly rate for the reason that there is nothing in the current drafting to give rise to
an employee being paid shift loadings while working overtime.229 In support of this
submission, ABI referred to the wording of clause 18.6 of the exposure draft, which is in
similar terms to the current Funeral Award, and states that overtime rates are applicable to:
‘All time worked in excess of, or outside the ordinary working hours in clause 18.2, or on a
shift other than a rostered shift…’230
[434] ABI submitted that when an employee is working the overtime shifts referred to in
clause 18.6 they are no longer performing work within the meaning of an afternoon shift
within the meaning of clauses 18.1 and 18.2 of the exposure draft as those clauses only deal
with ordinary hours of work.231
[435] The AWU submitted that the rate referred to in the overtime clause is the shiftwork
rate and that their position reflects a plain reading of the clause.232 In support of this
submission, the AWU referred to the language of the exposure draft highlighting that the
overtime provisions for shiftworkers are “clearly drafted to ensure the rate paid to a shift
worker performing overtime will vary” according to the applicable shift penalty.233
[436] The AWU further submitted that the principle of additional remuneration in s.134 of
the Act includes consideration of the need to provide additional remuneration for distinct
categories of overtime and shiftwork. The AWU submitted that the submissions of ABI and
AFEI are inconsistent with these principles.
226 Transcript, 29 March 2017 at PN33
227 AFEI submission, 21 April 2017
228 AFEI submission, 21 April 2017, para 4
229 ABI submission, 20 April 2017
230 ABI submission, 20 April 2017, para 3.3
231 ABI submission, 20 April 2017
232 AWU submission, 9 May 2017
233 AWU submission, 9 May 2017, paras 15-16
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https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014269-sub-abi-200417.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014269-sub-afei-210417.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014269-sub-afei-210417.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/29032017-am2014269.pdf
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[437] The AWU submitted that the practical effect of the construction proposed by ABI and
AFEI is as follows:
that continuous and non-continuous shiftworkers are paid the same overtime rates as
a dayworker;
non-continuous shiftworkers are paid the same overtime rates as continuous
shiftworkers; and
non-continuous shiftworkers would be paid the same rates for the first three hours
for overtime as when performing their ordinary hours.
[438] The AWU submitted that this could not be the intended effect of the Funeral Award.
[439] In reviewing the history of the Funeral Award, the AWU submitted that the current
award was based on the Funeral Industry Award 2003 (Victorian Funeral Award)234 that
applied in Victoria.235 The AWU noted that the Victorian Funeral Award was divided into
two streams, one for funeral directors and one for coffin makers which were combined into a
single stream in the modern award. The AWU conceded that, in the funeral director stream in
the Victorian Funeral Award, overtime rates were paid in substitution for shift rates. In the
coffin making stream, however, the AWU submitted that overtime rates for continuous
shiftworkers were ‘clearly paid in excess of shift rates’ and for non-continuous shiftworkers
‘the same is arguable’.
[440] In the Victorian Funeral Award there was a 15% allowance for continuous
shiftworkers and workers on shiftwork that did not continue for five days were paid at time
and a half for the first three hours and double time after that.236 Continuous shiftworkers were
entitled to double time when working overtime whereas non-continuous shiftworkers were
entitled to time and a half for the first three hours and double time after that.237 The AWU
noted that the apparent effect of the overtime provisions for non-continuous shiftworkers
would be that they would be paid less for the first three hours of their overtime than the
majority of their shift. The AWU contended that this could not be the intended effect.
[441] The AWU submitted that, absent any submissions or specific commentary from the
Award Modernisation Full Bench, the best inference to be made is that when the current
Funeral Award rationalised the streams of the Victorian Funeral Award the effect was that the
cumulative payment of overtime and shiftwork was extended to all classifications.
[442] UV submitted that the ‘applicable rate’ referred to in the clause means ‘the rate the
employee would have earned if they worked ordinary hours at the time they were working
overtime’.238 UV submitted that this includes the relevant shift rate, penalty rates and any all
purpose allowance. UV submitted that the use of the phrase ‘applicable rate’ suggests the rate
being referred to may vary from time to time as opposed to the minimum rate which would
not vary.
234 AP825425CRV
235 AWU submission, 9 May 2017 citing Award Modernisation Full Bench statement, 25 September 2009, para 22
236 AP825425CRV, clause 7.6
237 AP825425CRV, clause 7.9
238 UV submission, 19 April 2017, para 5
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014269-sub-uv-190417.pdf
https://www.fwc.gov.au/documents/consolidated_awards/ap/ap825425/asframe.html
https://www.fwc.gov.au/documents/consolidated_awards/ap/ap825425/asframe.html
http://www.airc.gov.au/awardmod/databases/funeral/Decisions/2009aircfb865.htm
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014269-sub-awu-090517.pdf
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[443] UV further submitted that it is unlikely that the award modernisation Full Bench
intended for ‘applicable rate’ to mean minimum hourly rate as clause 19.1 of the exposure
draft, which provides overtime provisions for dayworkers, refers to the ‘ordinary rate’ which
UV submitted is a more beneficial entitlement than the minimum hourly rate. UV submitted
that is unlikely that the Commission set an overtime entitlement at a lesser rate than for
dayworkers.
[444] UV referred to clause 9.6 of Schedule A of the Victorian Funeral Award which
contains provisions for overtime worked by funeral directors engaged as shiftworkers. UV
submitted that the Victorian Funeral Award contained a definition for ‘ordinary pay’ which
included shift premiums and that a shiftworker’s ordinary pay would include shift premiums.
[445] UV noted further that the definition of ‘ordinary pay’ was excluded from the modern
award at award modernisation.
[446] We begin our consideration of this issue by noting that. contrary to the unions’
position, clause 9.6.5 of the Victorian Funeral Award explicitly states that overtime is not
cumulative on shift allowances:
‘9.6.5 The rates prescribed in 6.2 are in substitution for, and not cumulative on, the shift
premiums prescribed in 9.5 of this Schedule.’
[447] The Victorian Funeral Award refers to ‘ordinary pay’ in the body of the award in the
clauses relating to annual leave. In the modern award the annual leave clause refers to the
National Employment Standards with no mention of the phrase ‘ordinary pay’ in that clause
or anywhere else in the award. It is possible that the definition of ‘ordinary pay’ was removed
as it was no longer used in the award. It is not clear what other inferences may be drawn from
this point.
[448] The anomaly of the overtime rates for shiftworkers appears to be a longstanding issue.
The 1994 award also provided separate rates for separate streams (L8102 – Funeral Industry
Award 1994). Funeral directors that worked non-continuous shiftwork would be paid at the
rate of time and a half for all ordinary hours. Funeral directors working afternoon or night
shift were paid a 20% shift premium. The overtime provision applying to both continuous
and non-continuous shiftworkers was time and half for the first 3 hours and double time
thereafter. There is no mention of whether the shift premium was to be included in this
calculation.
[449] Coffin makers working shiftwork had a 15% premium for afternoon and night shift.
Shiftworkers working shift work that did not continue for 5 days were paid 150% for the first
3 hours and 200% after that. The overtime provisions for continuous shiftworkers was 200%
and for non-continuous shiftworkers was 150% for the first 3 hours and double time after
that. There is no mention of whether the shift premium was to be included in this calculation.
[450] On a plain reading of the text in the current Funeral Award, the use of the words
‘applicable rate’ for shiftworkers as contrasted with the words ‘ordinary rate’ for employees
other than shiftworkers, suggests that the rates applying to the two types of employment are
different. It is also clear on a plain reading of the Victorian Funeral Award that funeral
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directors working on shiftwork were not entitled to be paid the overtime rate cumulative on
their shift allowances.
[451] The Victorian Funeral Award is explicit in stating that for coffin makers who work
shiftwork on a Saturday at time and a half, the overtime loading will not be cumulative on the
shift premiums. The AWU and UV appear to draw the inference that because the overtime
provisions do not expressly state that the rates are not cumulative that they ought to be
cumulative.
[452] The purpose of the afternoon and night shift premium in the Victorian Funeral Award
and in the modern award is to remunerate employees for the inconvenience of working
unsocial hours. The overtime provisions are to compensate employees for working in excess
of or outside their ordinary hours. It appears to us that neither the Victorian Funeral Award
nor the Funeral Award intend to compound the afternoon or night shift premium and
overtime rates, nor does it seem likely that the overtime rates are in substitution for penalty
rates.
[453] It is reasonably clear that, under the Victorian Funeral Award, coffin makers working
shiftwork were entitled to their shift penalty while working overtime. This rate would have
been cumulative on the overtime rate rather than in substitution. We are, on balance,
persuaded that the Award Modernisation Full Bench, in combining the provisions for funeral
directors and coffin makers, did not intend to lower the provisions for coffin makers. Our
provisional view is that the shift penalty for employees working on an afternoon shift would
be calculated on the employees’ minimum hourly rate as would the overtime rate. The
resultant amounts would be added together. We will include words to this effect in the
exposure draft and update Schedule A.
[454] Parties will have a further opportunity to comment on this provisional view, see the
Next steps below.
Items 15 and 16 – Overtime
[455] Items 15 and 16 concern the interaction between the clauses relating to recalls (clause
19.1(b) of the exposure draft) and removals (clause 19.4 of the exposure draft) and the
clauses providing minimum periods of engagement for part-time and casual employees
(clauses 10.5 and 11.3 of the exposure draft).
[456] The minimum periods of engagement for part-time and casual employees are three
and four consecutive hours, respectively. Clause 19.1(b) of the exposure draft provides a
minimum payment of one hour’s work for recall work outside the hours of 7.00 am to
7.00 pm (if this work had not already been arranged) on each occasion the employee is
recalled. Clause 19.4(a) of the exposure draft provides that where an employee is called to
undertake removal work between the hours of 7.00 pm and midnight and that work is
completed at or before midnight, the employee will be paid a minimum payment of two hours
for any removal work performed. Clause 19.4(b) of the exposure draft provides a minimum
payment of two hours for any removal work between the hours of midnight and 7.00 am.
[457] AFEI submitted that a casual or part-time employee who is recalled to work overtime
before 7.00 am or after 7.00 pm, in accordance with clause 19.1(b), would be entitled to one
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hour’s pay instead of the three or four hour minimum period of engagement provided in
clauses 10.5 and 11.3 of the exposure draft. Similarly, AFEI submitted that clause 19.4,
which provides a minimum payment of two hours for removals, will operate instead of the
minimum periods of engagement for casual and part-time employees in clauses 10.5 and 11.3
of the exposure draft. AFEI submitted that the recall and removal overtime clauses provide
additional compensation in circumstances where an employee is required to work undesirable
hours and that paying an employee for three or four hours at 150% or 200% would mean
employees are effectively compensated twice.239
[458] ABI submitted that clauses 10.5 and 11.3 and clauses 19.1(b) and 19.4(a)–(b) of the
exposure draft do not interact. ABI’s rationale is that the clauses relating to recall and
removals are specific and override the more general provisions contained in clauses 10.5 and
11.240 ABI provided an example whereby a casual employee, who would ordinarily have a
four hour engagement period under clause 11.3, has a two hour minimum engagement when
performing removal work.
[459] The AWU submitted that the entitlement to a minimum payment of one and two hours
for recalls and removals (respectively) are applicable only to full-time employees. In
particular, the AWU submitted that the entitlement to one hour’s pay in clause 19.1(b) for
recall work and the minimum payment of two hours for removals performed in clause 19.4(a)
and (b) only have work to do because, unlike casual or part-time employees, full-time
employees do not have a minimum period of engagement elsewhere in the Funeral Award.
The AWU further submitted that where a casual or part-time employee is recalled to work
they would have a minimum engagement of three and four hours in accordance with clauses
10.5 and 11.3. AWU noted that neither clauses 19.1(b) nor 19.4(a) and (b) exclude the
operation of the general minimum engagement provisions applicable for all part-time and
casual employees.
[460] The AWU proposed the insertion of the following additional clause 19.1(c) to clarify
the interaction between the recall clause and the minimum engagement clauses for casuals
and part-time employees:
‘Work performed by part-time and casual employees as prescribed in clause 19.1(b) is paid in
accordance with the applicable minimum engagement periods prescribed at clauses 10.5 and
11.3.’241
[461] The AWU also proposed the insertion of the following additional clause 19.4(c) to
clarify the interaction of the minimum engagement clauses with the provisions for removals:
‘Work performed by part-time and casual employees as prescribed in clauses 19.4(a) and
19.4(b) is paid in accordance with the applicable minimum engagement periods prescribed at
clauses 10.5 and 11.3.’242
239 AFEI submission, 21 April 2017, para 11
240 ABI submission, 20 April 2017
241 AWU submission, 9 May 2017, para 35
242 AWU submission, 9 May 2017, para 41
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014269-sub-awu-090517.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014269-sub-awu-090517.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014269-sub-abi-200417.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014269-sub-afei-210417.pdf
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[462] UV submitted that provisions relating to recall and removals are for the benefit of
full-time employees who do not have a minimum period of engagement. UV noted that
clause 11.3 of the exposure draft provides a minimum period of engagement for casual
employees of four hours ‘each time the employee is required to attend work, including when
engaged more than once in any day.’243
Recall to work
[463] The recall to work provision is currently located within the overtime clause and
concerns the recall of employees to work; other than for pre-arranged overtime.
[464] Clause 19.1(b) of the exposure draft provides:
‘(b) Where an employee is recalled to work before 7.00 am or after 7.00 pm for other than
arranged overtime, the employee will be paid a minimum of one hour’s pay at the applicable
overtime or penalty rate specified in either clause 19.1(a) or clause 20.1 on each occasion the
employee is recalled to work overtime.’
[465] The minimum engagement for part-time employees is found at clause 10.5 of the
exposure draft, it provides that:
‘10.5 A part-time employee must be rostered for a minimum of three consecutive hours on any
shift.’
[466] The minimum engagement for casual employees is found at clause 11.3 of the
exposure draft, it provides that:
‘11.3 A casual employee must be paid for a minimum of four hours’ work each time the
employee is required to attend work, including when engaged more than once in any day.’
Recalls for part-time employees
[467] The part-time minimum engagement provision in the exposure draft has been drafted
consistently with clause 10.4(d) in the current Funeral Award.
[468] The wording of the minimum engagement clause for part-time employees is such that
the three hour minimum applies only to a part-time employee’s rostered or ordinary hours.
[469] As such, we have formed a provisional view that the minimum engagement period
provided for in clause 10.5 of the exposure draft does not apply to the recall provisions in
clause 19.1(b) for part-time employees. It is our provisional view that clause 10.5 of the
exposure draft applies to an employee’s work rostered during ordinary hours, whilst clause
19.1(b) applies to an employees work outside their fixed starting and finishing times.
[470] The exposure draft states that a part-time employee has an agreed regular pattern of
hours which specifies the hours and days worked and the starting and finishing times of each
day, as provided at clause 10.3. It is our view that the rostering of a minimum of three
243 UV submission, 19 April 2017, para 20
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014269-sub-uv-190417.pdf
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consecutive hours referred to at clause 10.5 of the exposure draft refers to this agreed regular
pattern of work. Therefore, the minimum engagement period does not apply in circumstances
where an employee is working in excess of the rostered hours.
[471] Clause 10.7 of the exposure draft provides that all time worked in excess of the hours
agreed under clause 10.3 or 10.4 will be overtime and paid for at the overtime rates at the
rates prescribed in clause 19.
[472] It is therefore our provisional view that where a full-time or part-time employee is
recalled to work overtime the employee is to be paid the minimum of one hour’s pay at the
applicable overtime or penalty rate at clause 19.1(b) of the exposure draft. We note that the
purpose of the overtime or penalty rate is to compensate employees for the disutility of
working in addition to their ordinary hours and in those circumstances part-time and full-time
employees do need the added protection of a minimum engagement.
Recalls for casual employees
[473] As with part-time employees, the casual minimum engagement clause in the exposure
draft is in similar terms to that provided for in the current Funeral Award.
[474] The casual minimum engagement provisions are, however, very different to the
provisions for part-time employees. Specifically, clause 11.3 of the exposure draft provides
that casual employees ‘must be paid for a minimum of four hours’ work each time the
employee is required to attend work, including when engaged more than once in any day.
[475] The casual minimum engagement provision has broader application and, in our
provisional view, clause 11.3 applies to any work undertaken by a casual employee,
including overtime recall work where the employee is required to attend work. The 5 July
2017 decision noted the following purpose of minimum engagement periods:
‘[399] Minimum engagement periods in awards have developed in an ad hoc fashion rather
than having any clear founding in a set of general principles. However their fundamental
rationale has essentially been to ensure that the employee receives a sufficient amount of
work, and income, for each attendance at the workplace to justify the expense and
inconvenience associated with that attendance by way of transport time and cost, work
clothing expenses, childcare expenses and the like.’244
[476] The policy behind the above reasoning applies to the four hour minimum engagement
for casual employees recalled to work overtime. Casual employees do not have the certainty
of agreed hours like full-time or part-time employees and the payment of the minimum
engagement period for each attendance at work provides some guarantee of sufficient work.
Removals
[477] Clause 19.4 of the exposure draft refers to payment of overtime penalties for removals
work outside the ordinary hours of work at clause 13. Where an employee is called to
244 [2017] FWCFB 3541, at [399]
https://www.fwc.gov.au/documents/decisionssigned/html/2017fwcfb3541.htm
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undertake removals between the hours of 7.00 pm and midnight or any portion of which
occurs between the hours of midnight and 7.00 am, there is a minimum payment of 2 hours.
Part-time employees
[478] In line with our provisional view about recalls, the minimum engagement of part-time
employees for rostered work in clause 10.5 does not apply to removals work performed
outside the ordinary hours of work. It is our provisional view that part time employees would
receive a minimum payment of 2 hours if they were called to perform removal work.
Casual employees
[479] In line with our provisional view about recall for overtime, the casual minimum
engagement period in clause 11.3 applies where a casual employee is required to undertake
removals as per clause 19.4.
[480] However, as per clause 19.4(c), if a casual employee performing removal work
commences the removal before the end of their ordinary rostered hours, the minimum
engagement in clause 19.4 would not apply.
[481] In these circumstances, we do not think that it is necessary to make any amendment to
the drafting of clause 19 of the exposure draft. Parties may comment on these provisional
views by 19 April 2018, see the Next steps below.
Items S8 – Penalty rates for work on a Saturday or Sunday
[482] Item S8 concerns the interaction between the provisions for work on Saturdays and
Sundays in clauses 20.1(a)(i) and 20.1(b) of the exposure draft and the minimum periods of
engagement for part-time and casual employees in clauses 10.5 and 11.3.
[483] Item S8 was formerly considered a technical and drafting matter and has since been
reclassified as a substantive matter, however given the consideration of items 15 and 16
above some comments may now be relevant.
[484] As stated above, the minimum periods of engagement for part-time and casual
employees are three and four hours respectively. Clause 20.1(a)(i) of the exposure draft sets
out a minimum period of two hours where an employee performs work, other than removals,
on a Saturday and a minimum period of four hours when an employee is engaged in the
carrying out a funeral on a Saturday. Clause 20.1(b) of the exposure draft sets out the
minimum period of two hours for work performed on a Sunday, other than removals. A
question was put to parties in the exposure draft about how these provisions interact.
[485] ABI submitted that the minimum engagement period of two hours for Saturday and
Sunday work provided for by clauses 20.1(a)(i) and 20.1(b) are intended to cover the field for
weekend work, including for part-time and casual employees. ABI submitted that the specific
minimum periods of engagement for weekend work will therefore override the general
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minimum engagement periods provided for by clauses 10.5 and 11.3 of the exposure draft.245
This position has been supported by AFEI in its submissions.246
[486] UV submitted that clauses 20.1(a)(i) and 20.1(b) provide for a minimum engagement
of two hours on a Saturday and Sunday which apply to full-time employees who would not
otherwise have a minimum engagement. The more beneficial minimum engagements for
part-time and casual employees still apply on a Saturday. UV noted that these are penalty rate
provisions so its purpose is to compensate the employee for the disability associated with
weekend work. UV submitted that these provisions achieve this objective by providing both a
minimum engagement for weekend work and a loading on the employee’s pay.247 This
position was supported by the AWU.248
[487] The AWU proposed the insertion of the following additional clause 20.1(d) to clarify
the interaction of the minimum engagement clauses with the provisions for work on Saturday
and Sunday work:
‘Work performed by part-time and casual employees as prescribed in clause 20.1 is subject to
the applicable minimum engagement periods prescribed at clauses 10.5 and 11.3’249
[488] Consistent with our reasoning with respect to items 15 and 16, it is our provisional
view that there is, in fact, an interplay between the clauses relating to work performed on
weekends and the clauses providing general minimum periods of engagement for part-time
and casual employees.
[489] The minimum engagement periods in clauses 10.5 and 11.3 of the exposure drafts are
intended to operate regardless of those provided for in clauses 20.1(a) and (b) such that part-
time and casual employees will have a minimum engagement period of three and four hours
respectively. As stated earlier, this interpretation ensures consistency and certainty for part-
time and casual employees with respect to their minimum engagements.
[490] We therefore support the AWU’s proposed variation and will provisionally insert a
clause 20.1(d) as follows:
(d) Work performed by part-time and casual employees, as prescribed in clauses
20.1(a)–(c), is subject to the applicable minimum engagement periods prescribed at
clauses 10.5 and 11.3.
[491] Parties may comment on this provisional proposal, see the Next steps below.
245 ABI and NSWBC submission, 18 January 2017, para 9.9; ABI and NSWBC submission, 18 January 2017, para 7.3
246 UV submission, 22 February 2017, para 12; AFEI submission, 22 February 2017, para 50
247 UV submission, 16 December 2016, para 10–14
248 AWU submission, 20 January 2017, para 13
249 AWU submission, 22 February 2017, para 11
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014269-sub-reply-awu-220217.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014269-sub-awu-200117.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014261-sub-uv-161216.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014-256andors-sub-afei-220217.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014269-sub-reply-uv-220217.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014-256andors-sub-abinswbc-220217.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014-256andors-sub-abinswbc-180117.pdf
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Item S9 – Overtime
[492] Item S9 concerns the AWU’s proposal to insert a minimum payment for time worked
on public holidays under clause 20.1(c)(i) of the exposure draft.250 Clause 20.1(c)(i) provides
that an employee will be paid 200% of the their minimum hourly rate for all work performed
(excluding removals) on a public holiday or a day substituted for a public holiday. Item S9
was formerly considered a technical and drafting matter and has since been reclassified as a
substantive matter.
[493] The AWU noted that a minimum payment is currently provided on Saturday and
Sunday, and submitted – after reviewing the pre-modern funeral awards – that the minimum
payment was excluded from clause 20.1(c)(i) as a unintended (rather than a considered)
outcome.251 The AWU noted that there is no apparent reason for the inconsistency. The
penalty rates applicable on Sundays and public holidays are the same, thus the value of
performing work on a Sunday and public holiday has been assigned the same value under the
Funeral Award. The AWU therefore submitted that the imposition or cost to an employee
attending work on a public holiday should be valued equally.252
[494] The AWU proposed the following amendment to clause 20.1(c)(i) of the exposure
draft:
‘200% of the employee’s minimum hourly rate will be paid for all work performed on a public
holiday, with a minimum payment of two hours’ pay.’253
[495] The AWU submitted that their proposal does not present a significant change. Firstly,
any additional wages cost relies on specific circumstances where less than two hours work is
required on a given public holiday.254 Secondly, the proposal is not new in the funeral
industry as the entitlement existed in a number of pre-modern instruments.255 And, finally, a
minimum payment on public holidays will ensure consistency across public holidays.256 The
AWU noted that the proposed change to clause 20.1(c)(i) of the exposure draft will have
limited impact on employers on the basis that it would only apply to full-time employees. The
AWU assumed that part-time and casual employees will be entitled to a minimum period of
engagement of three of four hours respectively for work on public holidays pursuant to
clauses 10.5 and 11.3 of the exposure draft.
[496] AFEI noted that neither the exposure draft nor the current Funeral Award provide a
specific minimum engagement for work performed on a public holiday.257 Further, AFEI
250 AWU submission, 22 Feb 2017, para 12 [incorrectly cites 20.1(c)(ii)]
251 AWU submission, 3 July 2017, para 8
252 AWU submission, 3 July 2017, para 30
253 AWU submission, 3 July 17, para 31
254 AWU submission, 3 July 17, para 32.1–32.2
255 AP815104CRA; AP827092; AN140127
256 AWU submission, 3 July 17, para 32.4
257 AFEI submission, 20 July 2017, para 5
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014269-sub-reply-afei-200717.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014269-sub-awu-030717.pdf
https://www.fwc.gov.au/documents/consolidated_awards/an/an140127/asframe.html
https://www.fwc.gov.au/documents/consolidated_awards/ap/ap827092/asframe.html
https://www.fwc.gov.au/documents/consolidated_awards/ap/ap815104/asframe.html
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014269-sub-awu-030717.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014269-sub-awu-030717.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014269-sub-awu-030717.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014269-sub-awu-030717.pdf
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submitted that if the AWU is seeking to introduce a new entitlement for employees into the
Funeral Award this should be pursued as a substantive claim.258
[497] We consider that the amendment proposed by the AWU would constitute a
substantive change to the Funeral Award as it would effectively provide a new entitlement to
employees. If the AWU wishes to pursue this matter it may do so, as a substantive change.
The AWU is to advise their intentions in this regard by 19 April 2018, see the Next steps
below.
Item 16A – Removals and shift work
[498] Item 16A concerns a query posed by Business SA as to the interaction between
clauses 18 and 19.4(a) of the exposure draft, particularly whether overtime and shiftwork
penalties apply to removal work.259 Clause 18 deals with afternoon shiftwork penalties and
overtime, while clause 19.4(a) provides for removals after 7.00 pm and before midnight and
the work is completed no later than midnight.
[499] Under the current construction of the exposure draft, clause 19.3 appears to remove
overtime for shiftworkers from the general overtime clause so that it is exclusively dealt with
by clause 18.6 of the exposure draft. Our provisional view, however, is that clause 19.4 does
not currently operate to the exclusion of clause 18.6. Comments may be made on our
provisional view by 19 April 2018.
[500] If parties wish to pursue the outstanding substantive variations noted in the summary
of submissions published on 8 March 2017, the matters will be referred to a separately
constituted Full Bench. Parties are directed to advise the Commission about whether these
matters are being pursued by 19 April 2018, see the Next steps below.
Item S7 – Uniform allowance
[501] Item S7 regarding uniform allowance remains unresolved, the interested parties can
make further submissions if they wish to pursue the matter by 19 April 2018. Further
instructions are set out in the Next steps below.
[502] There are no other matters for this Full Bench to determine with regards to the Funeral
Award.
2.21 Hydrocarbons Field Geologists Award 2010
[503] An exposure draft based on the Hydrocarbons Field Geologists Award 2010260
(Hydrocarbons Award) was published on 23 May 2016. A submission in response to the
exposure draft was received from APESMA.261
258 AFEI submission, 20 July 2017, para 5
259 Business SA submission, 29 September 2016, para 5.3
260 MA000064
261 APESMA submission, 8 August 2016
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014273-subs-apesma-080816.pdf
https://www.fwc.gov.au/documents/documents/modern_awards/award/ma000064/default.htm
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014259andors-sub-bussa-290916.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014269-sub-reply-afei-200717.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/exposure-draft-hydrocarbons-geologists.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/water-substantive-summary-subs.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/water-substantive-summary-subs.pdf
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[504] A summary of submissions was published on 30 November 2016. APESMA appeared
at the hearing on 6 December 2016 and confirmed that the summary accurately reflected their
position in relation to the technical and drafting issues.
[505] An updated summary of the technical and drafting submissions was published on
20 November 2017.
[506] The submission from APESMA was made in response to four questions raised by the
Commission in the exposure draft. The first matter related to clause 11—Minimum Wages.
The Commission asked the parties whether the basis for the payments in clause 11.2 should
be clarified. APESMA submitted that it was their understanding that following the
establishment of the initial rates the long established approach has been to increase the rates
and allowances in accordance with Annual Wage Reviews.
[507] The second question in the exposure draft was whether it would be useful to define
‘rig-up rig-down’ in clause 12.2. APESMA submitted that the term is widely understood in
the industry as referring to setting up and closing down of production and exploratory rigs.
We accept the uncontested submission of APESMA in relation to the term and accordingly,
no amendment will be made to the exposure draft.
[508] Parties were asked to review the packages listed in Clause C.7—Allocation of
Traineeship to Wage Levels to ensure that the lists are complete. APESMA submitted that,
based on available knowledge, the provision is not utilised and is therefore redundant. The
National Training Wage Schedule has been deleted from the Hydrocarbons Award as part of
the AM2016/17 proceedings.262 The exposure draft will be updated accordingly.
[509] The final outstanding matter in the Hydrocarbons Award is in relation to
Schedule B—Summary of Monetary Allowances. Parties were requested to confirm that the
daily rig and attendance allowances are adjusted in line with changes to the standard rate.
APESMA confirmed that this was their understanding.
[510] A further conference was conducted on 25 July 2017 where it was confirmed that
there were no outstanding matters to determine in this award.263
2.22 Journalists Published Media Award 2010
[511] An exposure draft based on the Journalists Published Media Award 2010264
(Journalists Award) was published on 18 November 2016. Submissions and submissions in
reply were received from MEAA,265 News Limited, Bauer Media and Pacific Magazines266
(News Ltd) and ABI.267
262 PR593847
263 Transcript, 25 July 2017 at PN83
264 MA000067
265 MEAA submission, 21 December 2016
266 News Limited, Bauer Media and Pacific Magazines submission, 21 December 2016; News Limited, Bauer Media and
Pacific Magazines submission in reply, 22 February 2017
267 ABI submission, 18 January 2017; ABI and NSWBC submission in reply, 22 February 2017
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014-256andors-sub-abinswbc-220217.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014-256andors-sub-abinswbc-180117.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014275-sub-newsltdandors-220217.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014275-sub-newsltdandors-211216.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014275-sub-meaa-211216.pdf
https://www.fwc.gov.au/documents/documents/modern_awards/award/ma000067/default.htm
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/250717_am2014257-273-287.htm
https://www.fwc.gov.au/documents/awardsandorders/html/pr593847.htm
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/exposure-draft-journalists.pdf
https://www.fwc.gov.au/awards-agreements/awards/modern-award-reviews/4-yearly-review/common-issues/am201617-national
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/hydrocarbons-field-summary-technical-drafting-201117.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014273-summary-technical-drafting.pdf
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[512] Summaries of submissions relating to technical and drafting matters and substantive
issues were published on 8 March 2017.
[513] A revised exposure draft was published on 10 May 2017. A revised summary of
submissions relating to technical and drafting matters was published on 10 May and a further
revised summary of submissions relating to technical and drafting matters was published on 1
September 2017.
[514] Conferences were conducted on 20 April 2017 and 12 May 2017.
[515] Following the conferences, a Report to the Full Bench was published on 1 September
2017. The Report noted that parties had advised all outstanding items had been resolved. An
updated summary of submissions for the substantive matters was also published on
1 December 2017.
[516] The Full Bench is minded to accept all matters agreed between parties with the
exception of item 25, as follows.
Item 25 – Public Holidays
[517] Interested parties agreed268 to amend clause 25.3 of the exposure draft to clarify that it
only applies to employees entitled to additional annual leave under clause 22.2(a).269 The
News Ltd proposed wording is:
‘25.3 Employees receiving additional annual leave
(a) Clauses 25.1, 25.2, 22.4 and 22.5 does not apply to any employee receiving
additional annual leave under clause 22.2(a).’
[518] Clause 25.1 states that ‘Public holiday entitlements are provided for in the NES.’ The
Commission is concerned that the clause 25.1 exclusion would have the appearance of
excluding the application of NES entitlements from the provisions relating to additional
annual leave in clause 25.3.
[519] We are prepared to make the other proposed changes excluding clauses 25.2, 22.4 and
22.5 from applying to clause 25.3, but not clause 25.1. On that basis, we intend to vary the
exposure draft as follows:
25.3 Employees receiving additional annual leave
(a) Clauses 22.4, 22.5 and 25.2 do not apply to any employee receiving
additional annual leave under clause 22.2(a).
[520] If interested parties intend to pursue the outstanding substantive matters they are to
advise the Commission by 19 April 2018, see the Next steps below.
268 Transcript, 12 May 2017 at PN10
269 News Limited submission, 21 December 2016, para 2.16
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014275-sub-newsltdandors-211216.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/120517_am2014275.htm
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014251-259-275-281-283-285-sub-abi-011217.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014275-report-010917.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/120517_am2014275.htm
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/200417_am2014275.htm
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/journalists-summary-technical-drafting-revised-010917.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/journalists-summary-technical-drafting-revised-010917.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/journalists-summary-technical-drafting.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/journalists-summary-technical-drafting.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/exposure-draft-journalists-100517.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/journalists-summary-substantive-issues.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/journalists-summary-substantive-issues.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/journalists-summary-technical-drafting-080317.pdf
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[521] There are no other issues for this Full Bench to determine in relation to the Journalists
Award.
2.23 Live Performance Award 2010
[522] An exposure draft based on the Live Performance Award 2010270 (Live Performance
Award) was published on 25 November 2016. Submissions in response to the exposure draft
were received from MEAA and LPA.
[523] Summaries of submissions for technical and drafting and substantive issues were
published on 8 March 2017. A conference was held before Deputy President Gostencnik on
27 March 2017. At the conference, MEAA and LPA resolved some of the technical and
drafting issues and provided an update as to the substantive issues being pursued. Parties
were directed to report back on the matters that were outstanding in the technical and drafting
list and clarify any agreement reached on the substantive issues list.
[524] An individual submission from Richard Taki (Mr Taki) was received on 3 April 2017
requesting the inclusion of Drag Queen or a Drag Performing Artist category into the Live
Performance Award. Revised summaries of submissions for technical and drafting and
substantive issues were published on 29 May 2017.
[525] A report back conference was held on 31 May 2017. At the conference, MEAA and
LPA established the outstanding substantive issues. Parties were directed to make
submissions in reply to Mr Taki.271
[526] MEAA advised that the parties reached an agreement on all matters but had not
completed preparing further draft clauses.272 A further conference was held on
17 August 2017. Mr Taki was invited but did not appear at the conference.273 MEAA and
LPA did not object to the inclusion of Drag Queens in the coverage of the Live Performance
Award.274 At the conference on 17 August, this item was referred to the substantive issues list
to be determined.275 Parties agreed to provide a marked up draft of the Live Performance
Award reflecting the agreed positions and any outstanding items by 22 September 2017.276
[527] Parties submitted an amended exposure draft containing their agreed positions. There
were no outstanding issues identified. A summary of submission for technical and drafting
was published on 24 October 2017.
270 MA000081
271 Transcript, 31 May 2017 at PN124
272 MEAA correspondence, 29 June 2017
273 Transcript, 17 August 2017 at PN11
274 Transcript, 17 August 2017 at PN12–PN16
275 Transcript, 17 August 2017 at PN19
276 Transcript, 17 August 2017 at PN151–PN176
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/170817_am2014276.htm
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/170817_am2014276.htm
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/170817_am2014276.htm
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/170817_am2014276.htm
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014276-corr-meaa-290617.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/310517-am2014276.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/ma000081/default.htm
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[528] On 1 November 2017, MEAA advised the parties’ exposure draft did not incorporate
the Annual Wage Review 2016–2017 and identified a typographical error.277 LPA agreed the
parties’ exposure draft addressed all outstanding issues subject to two errors in the parties’
exposure draft.278 The parties’ amended exposure draft, submissions and discussions at
conference indicated all technical and drafting items were resolved by consent.
[529] Updated summaries of submissions for the technical and drafting matters and the
substantive issues were published on 20 November 2017.
[530] Our preliminary view is to adopt the parties’ amendments to the exposure draft. The
amended exposure draft will be published and interested parties are invited to comment on it;
see Next steps below.
[531] Two outstanding technical and drafting items remain and are set out below.
Item 16 – Substantially whole time nature performances (Definition and Payment)
[532] As part of the exposure draft, the Commission asked the parties to clarify what is
meant by “substantially whole time nature”.
[533] LPA submitted that clause 33 of the Live Performance Award, regarding ordinary
hours of work and rostering, contains neither a rate of pay, hours of work nor the number of
performances a casual employee can undertake in a day or a week.279 LPA also highlighted
that the FWO sought clarification on payments to casual employees not engaged to perform
in a whole time performance.280
[534] In the conference on 27 March 2017, LPA explained one of their members (who does
short performances in shopping centres) was approached by the FWO.281 A short
performance may be between 10 to 15 minutes in length.282 Following a rest break, LPA
explained a performer may perform another 10 to 15 minutes in half an hours’ time
throughout their day. According to the Live Performance Award, each 10 to 15 minute
segment constitutes a performance and attracts a pay rate for an under an hour
performance.283 As a performance is three hours, each 10 to 15 minute segment would attract
a three hour payment for each performance. At conference, there did not appear to be an
agreed solution.284
[535] In our view, the inclusion of the proposed definition may create ambiguity or
uncertainty as the term remains substantially undefined and there remains no provision that
addresses the FWO’s query.
277 MEAA submission, 1 November 2017
278 LPA submission, 2 November 2017
279 LPA submission, 22 February 2017
280 AEIA submission, 22 February 2017; Transcript, 27 March 2017 at PN459–PN474
281 Transcript, 27 March 2017 at PN459
282 Transcript, 27 March 2017 at PN459
283 Transcript, 27 March 2017 at PN459
284 Transcript, 27 March 2017 at PN459–PN493
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[536] On that basis, we propose to include the following definition in clause 3 of the
exposure draft:
substantially whole time nature is a performance longer than one hour.
[537] Our proposed definition is consistent with the historical use of the provision. Parties
are to provide submissions on this proposed definition and any comments about payment for
the type of work described in [534] by 19 April 2018, see the Next steps below.
Time versus %
[538] Interested parties have agreed to adopt terminology like ‘time and a half’ and fractions
like ‘1/8th’. Previous Full Bench decisions have confirmed that rates of pay will be expressed
as a percentage of the minimum hourly rate. We do not intend to deviate from that
provisional view.285 The parties’ re-drafting will not be adopted.
[539] We invite the interested parties to confirm whether any substantive variations will be
pursued by 19 April 2018 as per the Next steps below. If pursued, the substantive items will
be referred to a separate Full Bench to consider and determine.
[540] There are no other outstanding issues for this Full Bench to determine with regards to
the Live Performance Award.
2.24 Mannequins and Models Award 2010
[541] A summary of proposed variations in Group 4 awards was published by the
Commission on 24 March 2016. No submissions were received about the Mannequins and
Models Award 2010286 (Mannequins Award).
[542] An exposure draft based on the Mannequins Award was published on 16 November
2016 along with a comparison document. Interested parties were invited to make submissions
in response to the exposure draft by 22 February 2017.287 No submissions were received.
[543] A number of questions were posed by the Commission as part of the exposure draft.
These questions were captured in a summary of submissions document published on
20 November 2017.
[544] In the interest of standardising measurements across modern awards we intend to vary
clause 16.2(k) of the exposure draft as follows:
(k) Billboards/posters—when the photograph(s) taken are used for large billboards or
posters (minimum size 6 meters by 3 meters 20 feet by 10 feet), an additional
payment of $207.70 will be paid to each model involved.
285 [2015] FWCFB 4658 at [95]–[96]
286 MA000117
287 Amended Directions, 21 December 2016
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https://www.fwc.gov.au/documents/decisionssigned/html/2015fwcfb4658.htm
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/mannequins-summary-technical-drafting-201117.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/comparison-mannequins.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/exposure-draft-mannequins.pdf
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[545] In the table in clause 16.2(b) of the exposure draft the cell for Evening showing will
be updated as follows:
Evening showing
(maximum time 2 consecutive
hours)
162.64
per showing
Introducing standard rate column
[546] As part of the exposure draft, the Commission asked interested parties to comment on
whether the table in Schedule A1in the exposure draft should be expanded to include the rates
in clauses 16.2(a)–(f) by reference to the standard rate to provide transparency when
adjusting them following an Annual Wage Review.
[547] In the absence of any comment from interested parties we will not vary the rates table
as suggested. If, in the future, interested parties find that it would be beneficial to see these
rates these tables can be drafted.
[548] As no submissions were received from interested parties in relation to the Mannequins
Award, we will provide a further opportunity to respond to our provisional views and any
other outstanding matters. Submissions are due by 19 April 2018, see the Next steps below.
2.25 Pest Control Industry Award 2010
[549] On 3 November 2016, the Commission published an exposure draft based on the Pest
Control Industry Award 2010288 (Pest Control Award) together with a comparison document
showing the changes made to the structure and language in the award.
[550] Interested parties were provided with an opportunity to file written submissions and
submissions in reply to the drafting and technical issues in the exposure draft. The
Commission received submissions from the AWU and AFEI.
[551] On 19 July 2017, a revised exposure draft was published by the Commission.
Summaries of submissions were published by the Commission on 8 March 2017, 19 April
2017, 15 May 2017 and 17 May 2017 setting out the technical and drafting issues for the Pest
Control Award. A revised summary of submissions was published on 20 November 2017.
[552] A Final Report was published on 27 July 2017 setting out the matters dealt with at
conferences held on 29 March 2017289 and 26 April 2017.290 A number of issues were
resolved at the conferences. We are satisfied that it is appropriate to make the changes agreed
to by the parties in relation to items 1, 3 and 7, as outlined in the Final Report.
288 MA000097
289 Transcript, 29 March 2017
290 Transcript, 26 April 2017
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[553] There remain a number of unresolved issues that require determination by this Full
Bench.
Item 2 – Meal allowance – country work
[554] Item 2 relates to the provision of a meal allowance for a worker who is sent to do
country work by their employer. The Commission invited parties to consider clause
17.3(c)(iv) of the exposure draft and clarify whether the $8.54 allowance for each meal is
payable where an employee is travelling to or between country work locations and how it
interacts with the allowance in clause 17.3(c)(ii) of $90.44 per night for lodging and all
meals.
[555] The relevant excerpts from clauses 17.3(a) and (c) of the exposure draft are set out
below:
‘17.3 Expense-related allowances
(a) Meal allowance
(i) The employer will either supply a meal or pay a meal allowance of
$13.81 for the first and subsequent meals to an employee where the
employee is required to work overtime for more than two hours
without being notified on the previous day or earlier that they will be
required to work.
(ii) If notice has been provided and the employee is not required to work
overtime or is required to work less than the amount advised, the
employer will pay the employee the meal allowance in clause
17.3(a)(i) for each meal the employee has provided themselves.
…
(c) Country work
(i) Country work means employment at a place which requires the
employee to live away from their usual place of residence.
(ii) An employee sent to country work will be paid an allowance of
$90.44 per night to cover the costs of lodging and all meals or
provided with board and lodging as agreed between the employer and
employee.
(iii) Time occupied in travelling to and from country work will be paid for
at ordinary rates in addition to wages otherwise earned, provided that
an employee will not be paid for more than eight hours occupied in
travelling on any one day. A day for the purposes of clause 17.3(c)
means from midnight on one day to midnight on the next day.
(iv) An employee sent from one place to another as prescribed in clause
17.3(c) will be paid a meal allowance of $8.54 for each meal. This
allowance will not be payable if the employee is otherwise entitled to
a meal allowance pursuant to clause 17.3(a).
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(v) Where transport is not provided by the employer, all employees will
be entitled to travel to and from country work on terms agreed
between the employer and the employee.’
[556] The AWU submitted that the allowance provided for in clause 17.3(c)(iv) may be
payable in addition to the allowance in clause 17.3(c)(ii), unless the employee is entitled to an
allowance pursuant to clause 17.3(a). In conference the AWU submitted that the allowance
under clause 17.3(c)(iv) constitutes ‘extra compensation’291 to that provided for in clause
17.3(c)(ii), and the allowance under 17.3(c)(iv) would not be an allowance paid in isolation.
The AWU noted that this additional allowance under clause 17.3(c)(ii) would not be payable
where an employee was required to travel from their work in the country to return their place
of residence.292
[557] In response, AFEI submitted that an employee would only be entitled to the allowance
under clause 17.3(c)(iv) under the exposure draft where that employee is not entitled to an
allowance under clauses 17.3(c)(ii) or 17.3(a).293 At the conference, AFEI submitted that
clause 17.3(c)(iv) could operate where employees are required to spend a period greater than
24 hours in the country for work (that is, where there is an extended travel time there and
back), entitling them to the clause 17.3(c)(ii) allowance (covered by the 24 hour period) as
well as a meal allowance whilst undertaking the additional hours.294 The AWU rejected
AFEI’s interpretation, submitting that those employees would be excluded from the
clause 17.3(c)(iv) allowance and would be entitled to the allowance under clause 17.3(a).295
[558] We disagree with the AWU and AFEI’s respective interpretations with respect to the
operation of clause 17.3(c)(iv). The AWU’s interpretation would enable employees to receive
double compensation for the same meal under clauses 17.3(c)(ii) and 17.3(c)(iv). AFEI’s
interpretation that clause 17.3(c)(ii) applies for a 24-hour period appears to have no basis in
the context of the current Pest Control Award and there has been no evidence presented in
support of the position.
[559] Our provisional view is that clause 17.3(c)(iv), in its current form and location, has no
practical application. Therefore, we suggest deleting clause 17.3(c)(iv) from the exposure
draft.
[560] If parties disagree with our provisional view, and are able to demonstrate a scenario
where an employee performing country work may be entitled to the meal allowance in clause
17.3(c)(iv), we will refer the matter to a separately constituted Full Bench for determination.
Submissions on this point are due by 19 April 2018 as per the Next steps below.
291 Transcript, 26 April 2017 at PN216
292 AWU submission, 20 January 2017
293 AFEI submission, 21 April 2017
294 Transcript, 26 April 2017 at PN208–210
295 Transcript, 26 April 2017 at PN213–214
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Item 4 – Shiftwork
[561] Item 4 relates to the definition of ‘shiftwork’ in clause 21 of the exposure draft. The
clause defines afternoon and night shift and prescribes the allowance for such shiftwork. The
definition of shiftwork was initially raised by the FWO in correspondence of 2 March
2015.296
[562] The FWO submitted that without the term ‘shiftworker’ being more clearly defined, it
may be unclear what entitlements apply to an employee working from 9.00 am to 7.00 pm.
Specifically, whether the employee should receive overtime pay as a dayworker or afternoon
shift rates as a shiftworker.297 This question was put to the parties in the exposure draft.
[563] The AWU responded to the FWO’s query in a submission by considering the ongoing
engagement of the employee on afternoon or night shift, that is, they are employed as a
shiftworker.298 If the employee is a day worker, and works outside the ordinary hours set out
under the Award, then overtime is paid on those hours.299
[564] The AWU proposed the addition of a further definition of ‘shiftworker’ at clause
21.1(a) of the exposure draft as follows and the subsequent clauses be renumbered
accordingly:
‘(a) A shiftworker is an employee who works ordinary hours during any shift finishing
after 6.00 pm and at or before 8.00 am. A shiftworker will be entitled to payment of
penalty rates in accordance with this clause.’300
[565] In response to the FWO’s query, AFEI noted that shift work penalties apply to shift
work, which may extend beyond the day work span of hours, and is compensated by overtime
as contemplated in clause 22.1(a) of the current award.301
[566] The current modern award provision, clause 23, is worded in a similar way to the
exposure draft. We agree that a change is necessary to ensure that an employee working, for
example, from 9.00 am to 7.00 pm has certainty as to whether they are classified as a day
worker or an afternoon shiftworker. This classification is necessary to ensure that work
performed past 6.00 pm is captured and paid at the appropriate rate for both employment
streams; that is by either receiving overtime as a day worker or afternoon shift rates as a
shiftworker.
[567] The AWU has not provided any reason why the inclusion of clause 21.1(a), as
proposed, would assist employees in making that determination. In our view, the proposed
clause does not clarify the entitlement for afternoon and night shiftwork as opposed to day
work.
296 FWO correspondence, 2 March 2015
297 FWO correspondence, 2 March 2015
298 AWU submission, 20 January 2017
299 AWU submission, 20 January 2017
300 AWU submission, 16 May 2017
301 AFEI submission, 22 February 2017
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[568] We propose the following variation to the exposure draft:
21.1 Definitions
(a) Afternoon shift means any shift finishing after 6.00 pm and at or before
midnight or where the majority of time worked is between the hours of
6.00 pm and midnight.
[569] Our proposed variation would address the FWO’s example such that an employee
working from 9.00 am to 7.00 pm could not be classified as an afternoon shiftworker and
would be entitled to overtime payment for working in excess of, or outside the span of,
ordinary hours of work. Aside from providing certainty for employers, the proposed
formulation would also ensure consistency with the drafting of clause 21.1(b) of the exposure
draft. Comments in relation to the proposed variation are to be made in accordance with the
Next steps below.
Item 5 – Annual leave – Payment and loading
[570] Item 5 related to annual leave loading under clause 22.3 of the exposure draft. Parties
were asked to provide clarification to three questions posed by the Commission.
What is the ‘industry allowance’ referred to in clause 22.3(b)?
[571] The AWU submitted that as there is no definition of ‘industry allowance’ in the Pest
Control Award or in any of the pre-modern instruments; therefore its inclusion at
clause 22.3(b) of the exposure draft was made erroneously.302
[572] The AWU further submitted that the term ‘industry allowance’ in clause 22.3(b) of
the exposure draft should be replaced with the words ‘leading hand’ as follows:303
‘(b) an additional loading of 17.5% of the employee’s minimum hourly rate
prescribed in clause 6—Minimum wages, plus industry leading hand and first
aid allowances where appropriate or, if they were a shiftworker prior to
entering leave, their shift penalty, whichever is greater.’
[573] The AWU submitted that its proposed amendment is necessary to reflect the historical
position that the leading hand allowance is payable to an employee on annual leave.304 The
AWU noted that all the pre-modern instruments relevant to the pest control industry, except
for the Pest Control Industry (Northern Territory) Award 2002,305 provide for the payment of
a leading hand allowance and stipulate that the leading hand allowance is payable to an
employee on annual leave.306
302 AWU submission, 16 May 2017
303 AWU submission, 16 May 2017
304 AWU submission, 16 May 2017
305 AP818995CRN
306 AWU submission, 16 May 2017
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[574] AFEI opposed the AWU’s proposal to change the reference from ‘industry allowance’
to the ‘leading hand allowance’ in the exposure draft.307 AFEI considered that such a
variation would amount to a substantive change.308 AFEI emphasised that the purposes of
industry allowance and leading hand allowance are different; an industry allowance is
typically payable to all employees across an industry for all hours worked to compensate for
the nature of work in the industry, whereas a leading hand allowance is payable only to those
who are undertaking work as a leading hand.309
[575] Further, AFEI was of the view that AWU had not provided sufficient reason for any
finding that the AIRC, during award modernisation, included a reference to the ‘industry
allowance’ as an error and that the reference was intended to be to the ‘leading hand
allowance’.310 AFEI noted that the AWU relied on the previous NSW Pest Control Industry
(State) Award311 which included a reference to the leading hand allowance in calculating
annual leave loading. AFEI considered that the example is unpersuasive taking into account
that the current award did not adopt that wording and actually references the first aid
allowance whereas the New South Wales award did not.312
[576] AFEI agreed that the award does not otherwise make any reference to an industry
allowance.313 AFEI submitted that it appears the phrase ‘industry allowance’ was erroneously
included in the annual leave loading clause.314 AFEI therefore submitted that the reference to
‘industry allowance’ in the exposure draft should be removed, and that it should not be
replaced with a different allowance.315
[577] We agree with the submissions that, apart from clause 22.3(b), the Pest Control
Award does not make any reference to an ‘industry allowance’. In the absence of a definition,
the term creates ambiguity and currently has no practical application. As such, our
provisional view is to remove the reference to an ‘industry allowance’ from clause 22.3(b) in
the exposure draft as follows:
(b) an additional loading of 17.5% of the employee’s minimum hourly rate prescribed in
clause 6—Minimum wages, plus industry and the first aid allowances where
appropriate or, if they were a shiftworker prior to entering leave, their shift penalty,
whichever is greater.
[578] Parties are invited to provide feedback on our provisional view. Interested parties who
oppose our provisional view may make submissions as to whether they intend to pursue a
substantive variation to the exposure draft to insert a definition of ‘industry allowance’ or
307 AFEI submission, 21 April 2017
308 Transcript, 26 April 2017 at PN288
309 AFEI submission, 21 April 2017
310 AFEI submission 21 April 2017
311 AN120413
312 AFEI submission, 21 April 2017; Transcript 26 April 2017 at PN291
313 AFEI submission, 21 April 2017
314 AFEI submission, 21 April 2017
315 AFEI submission, 21 April 2017
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substitute it with ‘leading hand allowance’ or any other allowance. Submissions are due by
19 April 2018 see the Next steps below.
Are shiftworkers entitled to first aid allowance (where applicable) while on annual
leave?
[579] The parties have not made submissions addressing this question. Our preliminary
view is that shiftworkers will have the same entitlement as non-shiftworkers under
clause 22.3(b). However, no change will be made to the exposure draft.
How is the loading under clause 22.3(b) calculated?
[580] While we accept the parties’ submissions as to the interpretation of the clause 22.3(b)
in the exposure draft, we do note our provisional view to remove the reference to ‘industry
allowance’. Consequently, the appropriate interpretation is: 17.5% of the employee’s
minimum hourly rate + the first aid allowance.
Item 6 – National Training Wage
[581] Item 6 was considered as part of a common issue and was resolved by the deletion of
Schedule D.316
[582] There are no other outstanding matters to determine for the Pest Control Award.
2.26 Plumbing and Fire Sprinklers Award 2010
[583] On 26 May 2016 the Commission published an initial exposure draft based on the
Plumbing and Fire Sprinklers Award 2010317 (Plumbing Award) together with a comparison
document. A revised exposure draft was published on 5 January 2017.
[584] Submissions were received from a number of interested parties including:
AWU;
Ai Group;
Master Plumbers Group (MPG); and
National Fire Industry Authority (NFIA).
[585] Deputy President Gostencnik conducted a conference on 17 August 2017.318 A draft
report was issued for comment from interested parties on 11 October 2017. A final report to
the Full Bench was published on 8 November 2017. An updated summary of technical and
drafting matters was republished on 23 November 2017.
[586] A number of technical and drafting matters were resolved by agreement between the
interested parties and we will adopt those agreed changes in the exposure draft. We note that
316 AM2016/17—National Training Wage
317 MA000036
318 Transcript, 17 August 2017
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https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014280-report-081117.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014280-draftreport-fwc-111017.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014280-draftreport-fwc-111017.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/exposure-draft-plumbing-revised.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/comparison-plumbing.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/comparison-plumbing.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/exposure-draft-plumbing.pdf
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item 16 is an agreed change to the payment of wages clause. Whilst we will adopt the agreed
position of the interested parties, we acknowledge that the ongoing Payment of wages
common issue may result in further amendments to that same clause.319
[587] There remain two technical and drafting matters for this Full Bench to determine.
Technical and drafting matters
Item 7 – Part-time employment
[588] The AWU submitted that clause 11.3(b) of the exposure draft should include finishing
times as well as commencement times.320 The AWU submitted that section 147 of the Act
requires the amendment. Section 147 provides:
‘147 Ordinary hours of work
A modern award must include terms specifying, or providing for the determination of, the
ordinary hours of work for each classification of employee covered by the award and each
type of employment permitted by the award.
Note: An employee’s ordinary hours of work are significant in determining the employee’s
entitlements under the National Employment Standards.’
[589] The current drafting of clause 11.3 of the exposure draft is as follows:
‘11.3 Before commencing a period of part-time employment the employee and the
employer will agree in writing:
(a) that the employee may work part-time;
(b) upon the hours to be worked by the employee, the days upon which they will
be worked and commencing times for the work;
(c) upon the classification applying to the work to be performed; and
(d) upon the period of part-time employment.’
(emphasis added)
[590] The equivalent clause in the current modern award, clause 13.3, is drafted in the same
way.
[591] MPG321 and NFIA322 do not oppose the AWU’s submission.
[592] Ai Group323 and the Master Plumbers and Mechanical Contractors Association of
NSW324 oppose the AWU’s submission. It was submitted that because a part-time
319 AM2016/8—Payment of Wages
320 AWU submission, 6 July 2016, para 7
321 MPG submission, 27 July 2017, para 6
322 NFIA submission, 27 July 2017, para 4
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014280-sub-nfia-280717.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014280-sub-mpg-270717.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014280-sub-awu-060716.pdf
https://www.fwc.gov.au/awards-agreements/awards/modern-award-reviews/4-yearly-review/common-issues/am20168-payment-wages
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employment arrangement must specify commencement times, days of work and the total
number of hours to be worked, the finishing times can be determined based on that
information.
[593] We do not agree that finishing times can be assumed or inferred based on the other
criteria set out in clause 11.3(b). For example, “a part-time employee and employer might
agree that the employee would be engaged for 20 hours a week, starting at 7 am. From that
one couldn’t calculate a finishing time.”325
[594] In the example provided, if the employee agreed to complete those 20 hours during
Monday to Wednesday each week, the options for finishing times each day could be
estimated based on an average number of hours each day but that may not be the spread of
hours adopted. The Plumbing Award does not prescribe minimum or maximum hours per day
for part-time employees. As such, the spread of hours across the agreed number of days could
vary and may change week to week.
[595] Our provisional view is that the variation proposed by the AWU should be made in
order to provide part-time employees with more certainty about their pattern of work. The
variation to clause 11.3(b) would be as follows:
(b) upon the hours to be worked by the employee, the days upon which they will
be worked and commencing and finishing times for the work;
[596] Submissions in response to this provisional view are due by 19 April 2018, see the
Next steps below.
Item 12 – Adult apprentices
[597] As part of the exposure draft, the Commission asked whether clause 13.14(d)(ii) is a
permitted term. Clause 13.14(d) is phrased as follows:
‘(d) Employment as an adult apprentice
(i) Where possible, employment as an adult apprentice should be given to an
applicant who is currently employed by the employer so as to provide for
genuine career path development.
(ii) Adult apprentices will not be employed at the expense of other apprentices.’
(emphasis added)
[598] The equivalent clause in the current modern award, clause 16.4, is drafted in the same
way.
[599] Interested parties commented that the clause may be permitted but it is unhelpful
because it provides no guidance about what “where possible” means.
323 Ai Group submission, 3 August 2016, paras 9–11
324 Transcript, 6 February 2017 at PN84
325 Transcript, 6 February 2017 at PN85
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/06022017-am2014280.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/06022017-am2014280.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014280-replysub-aig-030816.pdf
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[600] Our provisional view is that clause 13.14(d)(ii) should be deleted because it has no
work to do. Submissions in response to this provisional view are due by 19 April 2018, see
the Next steps below.
Substantive matters
[601] The majority of the substantive matters pertaining to the Plumbing Award were
referred to a separate Full Bench to determine.326 Item S23, a proposed shiftwork clause, is an
additional outstanding substantive matter that will require consideration by a separate Full
Bench.
[602] There are no other outstanding matters for this Full Bench to determine in relation to
the Plumbing Award.
2.27 Professional Employees Award 2010
[603] On November 2016 the Commission published an initial exposure draft based on the
Professional Employees Award 2010327 (Professional Employees Award) together with a
comparison document showing the changes made to the structure and language in the award.
Interested parties were provided with an opportunity to file written submissions and
submissions in reply on the drafting and technical issues in the exposure draft. Submissions
and submissions in reply were received from the following parties:
APESMA;
Ai Group;
ABI;
AFEI; and
Business SA.
[604] A draft report was published on 3 May 2017 setting out the matters dealt with at a
conference held on 7 April 2017. An updated draft report was published on 21 June 2017.
The draft report of 21 June 2017 called for further comments about the contents of the report
before it was finalised.
[605] A revised exposure draft, along with a summary of submissions, was published on
15 May 2017. A further revised exposure draft was published on 17 July 2017.
[606] Updated summaries of submissions were published for the technical and drafting
matters and the substantive issues on 20 November 2017.
[607] Following a conference and further submissions, the following items were resolved by
agreement between the parties: 10, 16, 21, 22, 28, 31-35. A final Report to the Full Bench
was published on 4 September 2017.
326 AM2016/23
327 MA000065
https://www.fwc.gov.au/documents/documents/modern_awards/award/ma000065/default.htm
https://www.fwc.gov.au/awards-and-agreements/modern-award-reviews/4-yearly-review/award-stage/award-review-documents/MA000020?m=AM2014/260
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014281-report-040917.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/professionals-summary-substantive-201117.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/professional-summary-technical-drafting-201117.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/exposure-draft-professional-further-revised.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/professional-summary-technical-drafting-revised-150517.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/exposure-draft-professional-revised-150517.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014281-draft-report-210617.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014281-draft-report-210617.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014281-draft-report-030517.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/comparison-professional.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/exposure-draft-professional.pdf
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[608] Based on previous decisions issued by other Full Benches as part of Review, we are
not satisfied that it is appropriate to make all the changes agreed to by the parties with regard
to items 17, 18, 22, 26, 29, 30 and 31-35. We will consider each item in turn below.
Items 17 and 18 – Facilitative provisions
[609] Ai Group raised concerns about clause 7.2 of the exposure draft because the following
clauses were listed as facilitative provisions:
clause 17.5 – Annual leave in advance; and
clause 17.6 – Cashing out of annual leave.
[610] Clauses 17.5 and 17.6 were included in the exposure draft following a decision of the
Annual Leave Full Bench328 to include clauses relating to the taking of annual leave in
advance and the cashing out of annual leave in modern awards.
[611] Ai Group proposed the removal of the references to clauses 17.5 and 17.6 on the basis
they were not facilitative provision in the sense contemplated by clause 7.1.329
[612] The list of facilitative provisions has been raised in a number of awards and will be
dealt with below at [756].
Item 22 – Ordinary hours of work
[613] The Professional Employees Award and Exposure Draft allow an employee, by
agreement with their employer, to average their ordinary hours of work over a regular cycle
which may include shorter or longer hours.330 In the exposure draft published on 3 November
2016, the Commission asked parties to confirm the maximum number of weeks in a cycle
that the 38 ordinary hours per week may be averaged.
[614] Initially, APESMA331 and AFEI332 submitted that any proposal to specify a maximum
number of weeks over which 38 hours may be averaged would be a substantive change.
ABI333 and Ai Group334 opposed the introduction of any maximum number of weeks over
which ordinary hours were averaged. APESMA proposed the following clause to address the
Commission’s concerns:335
‘For the purposes of this sub-clause 13.2, a cycle cannot be longer than 12 months.’
328 [2016] FWCFB 3953
329 Ai Group submission, 18 January 2017
330 Clause 18.2 Professional Employees Award; Clause 13.2 Professional Employees Exposure Draft
331 APESMA submission, 22 December 2016
332 AFEI submission, 18 January 2017
333 ABI submission, 18 January 2017
334 Ai Group submission, 22 February 2017
335 APESMA submission, 19 July 2017
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014281-refs-apesma-190717.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014258andors-sub-aig-220217.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014-256andors-sub-abinswbc-180117.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014256andors-sub-afei-180117.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014281-sub-apesma-211216.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014258andors-sub-aig-180117.pdf
https://www.fwc.gov.au/documents/decisionssigned/html/2016fwcfb3953.htm
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/exposure-draft-professional.pdf
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[615] Following the final conference, the interested parties336 confirmed that they agreed to
APESMA’s proposal that a cycle cannot be longer than 12 months.337
[616] The Commission wrote to interested parties on 8 September 2017 to seek clarification
about whether an average cycle was appropriate given the lack of overtime provisions.338 In
response, Ai Group submitted that the Professional Employees Award and its predecessors
never contained overtime and TOIL provisions because employees typically receive an
annual salary.339
[617] We agree with the initial submissions of APESMA and AFEI that the introduction of
a maximum number of weeks would constitute a substantive change.
[618] We are also concerned that the proposed averaging of ordinary hours of work over a
12 month period is not a reasonable period of time over which to average ordinary hours, and
would raise practical issues with the reconciliation of the ordinary hours and any overtime
worked including in situations where employment is terminated prior to a 12 month period.
[619] Along with any overtime entitlement that might be introduced, there would need to be
consideration of the rate at which overtime hours would be paid, for example, at the ordinary
rate of pay or a loaded rate. There would also need to be consideration given to whether time
off may be granted instead of payment for overtime.
[620] The averaging of the ordinary hours of work clause has brought to our attention the
issues of reconciling the average ordinary hours work over a cycle and the payment of
overtime entitlements for hours worked in addition to ordinary hours. We note that under the
Professional Employees Award, while there is provision that employees will be compensated
for time worked regularly in excess of ordinary hours, there is no method of calculation of
these ‘additional hours in relation to remuneration, time off in lieu or penalty rates.
[621] This matter will be referred to a separately constituted Full Bench for further
consideration and determination.
Item 26 – Schedule of casual rates of pay
[622] The parties agreed to the insertion of a Schedule of the rates of pay for casual
employees. After the final conference, Ai Group proposed that a footnote be added to the
Schedule highlighting that the rates of pay include the casual loading set out in
clause 11.1(b).340
336 Ai Group submission, 2 August 2017; ABI submission, 2 August 2017; AFEI submission, 20 July 2017
337 APESMA submission, 19 July 2017
338 FWC correspondence, 8 September 2017
339 Ai Group correspondence, 17 September 2017
340 Ai Group submission, 2 August 2017
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am20156-sub-aig-020817.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014281-sub-aig-170917.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/am2014281-corr-fwc-080917.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014281-refs-apesma-190717.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014281-sub-afei-200717.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014281-sub-abi-020817.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am20156-sub-aig-020817.pdf
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[623] We agree that Schedule B should be clarified to demonstrate that it includes the casual
loading. Our provisional view is that the table be amended in the following manner, which is
consistent with approach taken in other awards.
Employee classification Casual minimum
hourly rate
125%
[624] Submissions in response to this provisional view are due by 19 April 2018, see the
Next steps below.
Items 29 and 30 – Annual leave
[625] The Commission asked parties to comment on how clause 17.2(a) of the exposure
draft operates given annual leave accrues progressively rather than falling on a given date.
[626] Clause 17.2 of the exposure draft states:
‘17.2 An employee must be paid a loading calculated at the rate of 17.5% of their base rate
of pay, provided that:
(a) The entitlement must not exceed the ABS average weekly earnings for all
males (Australia) for the September quarter of the year preceding in which the
date of the accrual of the annual leave falls; and
(b) Where an employee receives remuneration from their employer which is
related to their annual leave loading and which is established as being of
equivalent value to or greater value than the loading provided by this clause,
no further entitlement will accrue. Where the benefit is of a lesser value than
equivalent value then the employer must make up the benefit to that value.’
[627] APESMA and Business SA agreed that the practical application of the clause
concerns when annual leave is taken and the loading cap which would apply at that time.341
[628] Ai Group submitted that the intent is that the clause applied to the average weekly
earnings for the preceding September quarter of the year preceding the year in which the date
of the accrual of the annual leave falls.342
[629] Despite having differing interpretations of clause 17.2, the interested parties did not
propose to vary clause 17.2.343 Ai Group proposed the following amendment to clause 17.2
so that it was consistent with the current Award:
‘The entitlement must not exceed the ABS average weekly earnings for all males (Australia) for
the September quarter of the year preceding the year in which the date of the accrual of the
annual leave falls’
341 APESMA submission, 21 December 2016; Business SA submission, 18 January 2017
342 Ai Group submission, 18 August 2017
343 Draft Report, 21 June 2017
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014281-draft-report-210617.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014258andors-sub-aig-180117.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014-256andors-sub-bussa-180117.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014281-sub-apesma-211216.pdf
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[630] The Ai Group proposal appears to contradict APESMA and Business SA’s
interpretation of clause 17.2(a) that the loading is calculated based on the preceding year
from when annual leave is taken rather than accrued.
[631] The Commission wrote to interested parties to confirm their views on how annual
leave loading is accrued and paid.344 Ai Group submitted that the calculation refers to the
year prior to accrual.345 ABI346 and AFEI347 support Ai Group’s submission.
[632] APESMA submitted that because annual leave accrues progressively, not on an
anniversary date, the wording could be updated to read:348
‘The entitlement must not exceed the ABS average weekly earnings for all males (Australia) for
the September quarter of the year preceding the year of the anniversary date in which the full
annual leave entitlement has accrued’
[633] In our view, the existing annual leave loading provision is unnecessarily complicated.
It places an administrative burden on award users to locate the relevant ABS data based on
the year of accrual. We consider that the clause could be re-drafted in plain English to clarify
how annual leave loading is calculated in practice.
[634] Our provisional view is that the award should specify a monetary amount and be
updated annually according to the ABS figure. This issue will be referred to the Plain
Language Full Bench for further consideration and re-drafting.
[635] Interested parties may consider raising further amendments to the annual leave
provisions as a substantive matter if they are concerned with the ongoing application of the
clause as per the Next steps below.
Items 31–35 – Annual close down
[636] Parties raised concerns that the Annual close down clause in the Exposure Draft had
substantively changed the effect in the Professional Employees Award.
[637] Parties agreed to replace the clause concerning Annual close-down with the
following:349
‘(a) An employer may close down a section or more of the enterprise for the
purpose of allowing annual leave to all or the majority of employees in the
section or sections.
344 FWC correspondence, 8 September 2017
345 Ai Group correspondence, 17 September 2017
346 ABI submission, 20 September 2017
347 AFEI submission, 20 September 2017
348 APESMA submission , 20 September 2017
349 APESMA submission, 19 July 2017
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014281-refs-apesma-190717.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014281-sub-apesma-200917.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014281-sub-afei-200917.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014281-sub-abi-200917.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014281-sub-aig-170917.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/am2014281-corr-fwc-080917.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/exposure-draft-professional-further-revised.pdf
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(b) The same conditions which apply to the other employees of the enterprise (or
sections) may also apply to employees covered by this award, provided that
the employer must give at least four weeks’ notice to the employees of the
requirement to take annual leave.’
[638] The proposed Annual close-down clause includes a new requirement that the
employer must give at least four weeks’ notice of the requirement to take annual leave.
[639] A statement was issued referring consideration of shutdown provisions in a number of
modern awards to the Full Bench presiding over the plain language re-drafting process.350
[640] The Professional Employees Award is included in that list of awards. On that basis,
we will not make any changes to the existing provisions at this time. Interested parties are
encouraged to participate in the plain language re-drafting process as it applies to the
shutdown provisions.
[641] We are satisfied that it is appropriate to make the other agreed changes outlined in the
Report to the Full Bench of 4 September 2017.
[642] We invite parties to make submissions about any further substantive issues that are to
be pursued.
2.28 Racing Clubs Events Award 2010
[643] On 18 November 2016 the Commission published an initial exposure draft based on
the Racing Clubs Events Award 2010351 (Racing Clubs Award) along with a comparison
document.
[644] Submissions in response to the exposure draft were received from interested parties
including: AFEI; ABI; and the AWU.
[645] Following a number of conferences, final summaries of technical and drafting
submissions and substantive issues were published in April and March respectively.
[646] The parties resolved the technical and drafting matters and the exposure draft will be
varied to include those agreed changes, with one exception, as set out below.
Item 11 – Casual hourly rates of pay
[647] The interested parties agreed to vary clause 11.5 to clarify casual minimum hourly
rates and minimum payments per shift. They also agreed to make consequential amendments
to clauses 12.4 and 12.5.
[648] While we agree that it is appropriate to make the consequential amendments in
clauses 12.4 and 12.5, we do not agree that amending the column heading is the appropriate
350 [2017] FWC 5861
351 MA000013
https://www.fwc.gov.au/documents/documents/modern_awards/award/ma000013/default.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2017fwc5861.htm
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/racingclubs-summary-substantive-issues.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/racing-clubs-summary-technical-drafting-revised-210417.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/racing-clubs-summary-technical-drafting-revised-210417.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/comparison-racing-clubs.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/comparison-racing-clubs.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/exposure-draft-racing-clubs.pdf
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place to insert the cross reference. Therefore, the words ‘in accordance with clause 11.5’ will
be added to the first sentence in each of the clauses as a pre-amble to the rates tables.
[649] A Report to the Full Bench was published on 24 April 2017 (April report). There are
no other outstanding technical and drafting matters. There is an outstanding substantive
matter that requires further consideration.
Item S1 – Casual employment ‘relevant minimum wage’
[650] The FWO wrote to the Commission to seek clarification about the appropriate rate to
be paid to casual employees for overtime.
[651] The April Report noted that Item S1 remained unresolved. A separate Full Bench has
been constituted to determine the matter, as per [762] below.
[652] There are no outstanding matters for this Full Bench to determine with regards to the
Racing Clubs Award.
2.29 Registered and Licensed Clubs Award 2010
[653] The Registered and Licensed Clubs Award 2010352 (Clubs Award) was recently
considered as part of the Penalty Rates case.353 The Penalty Rates Decision suggested two
options for further review of the Clubs Award as follows:354
‘Option 1: determinations could be made revoking the Clubs Award and varying the coverage
of the Hospitality Award355 so that it covers the class of employers and employees presently
covered by the Clubs Award. Such a course would obviously avoid the need for any further
Review proceedings in respect of the Clubs Award.
Option 2: CAI and any other interested party could be provided with a further opportunity to
advance a properly based merit case in support of any changes they propose in respect of
weekend penalty rates.’
[654] Option 1 is currently being pursued by Clubs Australia Industrial (CAI) and will be
considered by a separate Full Bench.356
[655] Given that proceedings for AM2017/39 are only in the initial stages, it seems
appropriate to defer consideration of the Clubs Award until after the Full Bench determines
the coverage issue.
352 MA000058
353 AM2014/305
354 [2017] FWCFB 1001 at [2044]–[2045]
355 Hospitality Industry (General) Award 2010 MA000009
356 AM2017/39
https://www.fwc.gov.au/awards-agreements/awards/modern-award-reviews/penalty-rates-case/award-specific-matters/am201739
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000009/default.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2017fwcfb1001.htm
https://www.fwc.gov.au/awards-and-agreements/modern-award-reviews/am2014305-penalty-rates-case
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000058/default.htm
https://www.fwc.gov.au/awards-agreements/awards/modern-award-reviews/penalty-rates-case/award-specific-matters/am201739
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014282-draft-report-240417.pdf
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2.30 Social, Community, Home Care and Disability Services Industry Award 2010
[656] On 13 May 2016, the Commission published an initial exposure draft based on the
Social, Community, Home Care and Disability Services Industry Award 2010 (SCHCDSI
Award). A comparison document was published concurrently with the exposure draft.
[657] Submissions relating to technical and drafting issues were received from:
HSU;
Ai Group;
United Voice;
Australian Municipal, Administrative, Clerical and Services Union;
Aged Care Employers;357
Business SA;
Jobs Australia;
ABI;
AWU;
AFEI; and
National Disability Services (NDS).
[658] A summary of submissions relating to technical and drafting issues was published on
30 November 2016; these were discussed in the Groups 4A, 4B and 4C Awards Full Bench
hearing of 6 December 2016, and at subsequent conferences before Commissioner Lee on
16 December 2016. An updated summary of submissions was published on 6 January 2017
and a further conference was conducted by Commissioner Lee on 6 February 2017.
[659] Subsequently, a further matter was transferred from the substantial matters submission
summary to the technical and drafting issues proceedings. The NDS submitted that the
language of the SCHCDSI Award is often complex to interpret and not conducive to
structuring patterns of work meaning that, in some cases, flexibility may exist but is not being
well utilised. We note that the SCHCDSI Award may soon be considered for inclusion in the
plain language process, and accordingly, a wholesale review of the language of the award
would be better dealt with in those proceedings.
[660] On 17 March 2017, Commissioner Lee issued a Report reflecting the position of the
parties following the conference. Changes agreed to by the parties will generally be adopted,
with the exception of any agreed position that contradicts a previous Full Bench decision or
an established drafting principle.
[661] A revised exposure draft was published on 13 July 2017 and a revised summary of
submissions relating to technical and drafting issues was published on 22 November 2017.
357 Aged and Community Services NSW & ACT, Leading Age Services Australia NSW-ACT, Aged and Community
Services Australia, Leading Age Services Australia, Leading Age Services Australia VIC, Aged and Community
Services Western Australia, Aged and Community Services SA & NT, Leading Age Services Australia – QLD, Leading
Age Services Australia – SA, Leading Age Services Australia – TAS, Leading Age Services Australia – WA, Aged &
Community Services Tasmania, Aged and Community Services Australia (Victoria), Aged and Community Services
Australia (QLD)
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/social-community-disability-summary-technical-drafting-221117.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014285-ed-further-revised-130717.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014285-final-report-170317.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/social-community-disability-summary-technical-drafting-revised.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/social-community-disability-summary-technical-drafting.pdf
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Items 1 and 2 – Definitions
[662] Although the parties have agreed that the appropriate location for sector definitions is
the definitions clause, rather than the coverage clause (see Items 1, 3 and 7 of the summary of
submissions and the Report), we do not propose to make this change, as it conflicts with the 6
July 2017 decision.358 The various sector definitions will remain in the coverage clause, and
references to the full definitions will be included in the definitions section.
[663] The placement of the definition of ‘sleepover’ was also a matter of contention
between the parties (Items 1 and 2 of the summary of submissions and Report). The Report
indicates that the parties agreed to include the definition in both the definitions section and
the sleepover clause; however, in the interest of consistency, the definition should only
appear in the award once. We have decided that the definition will remain in the sleepover
clause, and, in keeping with the approach adopted in relation to definitions, a reference to that
definition will be included in the definitions section.
Item 4 – Minimum hourly rate
[664] Item 4 of the summary of submissions and Report concerned whether to include a
definition of ‘minimum hourly rate’. This term replaced references to terms such as
‘appropriate rate’ and ‘ordinary rate of pay’ in the SCHCDSI Award, in accordance with the
December 2014 Decision359, which provided that where an award does not contain any
allowances or loadings payable for all purposes, the term ‘minimum weekly/hourly rate’
would be used throughout.360
[665] During the conference process, the parties agreed that inserting a definition of the
phrase ‘minimum hourly rate’ would resolve their concerns.
[666] The December 2014 decision provides that Awards containing allowances or loadings
payable for all purposes will include definitions of ‘all purposes’ and ‘ordinary hourly rate’
but did not provide for a definition of ‘minimum hourly rate’. We therefore consider that a
definition of ‘minimum hourly rate’ is not required to be included in the SCHCDSI Award,
and decline to make such variation.
[667] We note that there are a number of other references to ‘ordinary rate’ and ‘appropriate
rate’ that remain in the exposure draft. In light of the December 2014 decision, our
provisional view is that such references should all be changed to ‘minimum rate’ or
‘minimum hourly rate’, whichever is more appropriate. Parties are to advise the Commission
if they disagree with our provisional view, see the Next steps below. The clauses affected are
as follows: clause 11.3, clause 13.6(c), clause 14.1(c), clause 18.1(b)(iii), clause 18.4 and
clause 20.3(a).
358 [2017] FWCFB 3433 at [339]–[340]
359 [2014] FWCFB 9412
360 [2014] FWCFB 9412 at [44]
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Item 8 – The National Employment Standards and this award
[668] Item 8 of the Report concerns the wording of clause 3.3 of the exposure draft, which
relates to making copies of the award and the NES available. The following wording for the
relevant clause was determined in the December 2014 decision:
‘The employer must ensure that copies of the award and the NES are available to all employees
to whom they apply, either on a notice board which is conveniently located at or near the
workplace or through accessible electronic means.’361
[669] Accordingly, the above wording will be included in the SCHCDSI Award.
Item 30 – Rostering arrangements—excursions
[670] The Commission asked interested parties whether an employee is only entitled to the
allowance in clause 13.7(e) of the exposure draft, or also to the other provisions in clause
14.5; we note that the reference to clause 14.5 relates to previous numbering and should in
fact be a reference to clause 13.7. The parties were unable to agree to an answer to the
question, but through the conference process it was agreed that the parties’ concerns with the
excursions provisions are beyond the scope of the technical and drafting matters being
determined in these proceedings.362
[671] Should the parties wish to pursue these matters further, they can do so in the
SCHCDSI Award substantive matter proceedings.
[672] In the process of reviewing these provisions, we have noticed that the numbering of
the excursions clause in the exposure draft requires alteration. Clause 13.9(a) will become
introductory text for clause 13.9, clause 13.9(b) will be renumbered as clause 13.9(a) and
clause 13.9(c) will be renumbered as clause 13.9(b).
Plain language matters
[673] The March 2017 SCHCDSI Award Report indicates that there is an expectation that
the issue identified at Item 31 in the summary of submissions would be clarified in other
4 Yearly Review proceedings.
[674] We note that item 10.5 in the Plain language drafting of modern awards guidelines is
directly relevant to this issue and therefore the matter is more appropriately dealt with as part
of the Plain Language Drafting process.
[675] Item 32 of the summary of submissions concerns minimum wages provisions. The
parties have agreed to insert the words ‘(full-time employees)’ below the words ‘minimum
weekly rate’ in the second column of each of the tables in clauses 15.1–15.3 of the exposure
draft.
361 [2014] FWCFB 9412 at [29]
362 Transcript, 16 December 2016, PN738–740; Report 17 March 2017
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[676] However, this matter is also being dealt with as part of the plain language drafting
process, so we will leave this issue to be determined by the relevant Full Bench as part of that
process.
Item 32 – Minimum wages
[677] Another matter raised as part of Item 32 was the wording of the Notes at the
beginning of clauses 15.1 and 15.3 of the exposure draft. The parties agreed that these issues
could be resolved by inserting the words ‘this may require an additional payment in
accordance with the terms of the relevant Equal Remuneration Order.’ immediately after the
words ‘this modern award’ at the end of NOTE 2 in clause 15.1.
[678] The parties agreed that their concerns relating to the note in clause 15.3 would be
resolved by inserting the words ‘This may require an additional payment in accordance with
the terms of the Transitional Pay Equity Order.’ Immediately after the words ‘in items
30A(6) and (7)’ in the Note.
[679] At this stage, we are unable to confirm to which employment streams the Transitional
Pay Equity Order is relevant. Accordingly, we suggest that this matter be determined by the
substantive matters Full Bench.
Item 49 – Quantum of leave
[680] The parties agreed to change the title of clause 20.2 of the exposure draft from
‘Quantum of leave’ to ‘Definition of shiftworker for the NES’.
[681] We are of the view that this is more than a technical or drafting matter, and therefore
if the parties wish to pursue such change, they are to advise the Commission and it can be
dealt with by the substantive matters Full Bench.
Item 50 – Adjustment of expense-related allowances
[682] We note that the first entry in the column titled Applicable Consumer Price Index
figure in clause G.2.1(b) has erroneously been changed to ‘Weighted average eight capital
cities—CPI’ in the latest version of the exposure draft. This will be reverted back to ‘All
groups’ which is consistent with the agreed position in Item 50 of the Report.
Outstanding substantive matters
[683] An updated summary of substantive submissions will be published following the
issuing of this decision. Interested parties will have an opportunity to provide any comment
about the preliminary views in this decision, as well as the other outstanding substantive
matters. Interested parties can confirm their respective positions about each of the items in
accordance with the Next steps below.
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[684] Once the outstanding substantive matters are confirmed, they will be referred to a
separate Full Bench to consider and determine.363
2.31 Supported Employment Services Award 2010
[685] An exposure draft based on the Supported Employment Services Award 2010364
(Support Employment Award) was published on 17 May 2016. Submissions in response to
the exposure draft were received from:
ABI;365
HSU;366
AWU;367 and
NDS.368
[686] A summary of submissions was published on 30 November 2016. At the hearing the
HSU, Ai Group and AFEI entered appearances. Following the hearing on 6 December 2016 a
conference was held before Ross J on 15 December 2016.
[687] Following the conference, a Statement was issued on 20 December 2016,369 together
with a revised summary of submissions and a revised exposure draft incorporating the
following changes:
Issue Clause(s) Summary of change
6 4.1 Clause divided into two clauses370
12 11.3, 11.4 Order of clauses changed371
14 15.2 Cross-reference amended372
16 16.2 Obsolete assessment tools removed373
17 16.4 Clause reworded374
18 16.5 Clause reworded375
19 16.9 Transitional provisions removed376
22 24.2 Cross-reference amended377
363 See AM2016/24
364 MA000103
365 ABI submission, 1 July 2016
366 HSU submission, 30 June 2016
367 AWU submission, 6 July 2016
368 NDS submission, 18 July 2016
369 [2016] FWC 9143
370 Transcript, 15 December 2016 at PN56–PN57
371 Transcript, 15 December 2016 at PN87–PN89
372 Transcript, 15 December 2016 at PN91–PN96
373 Transcript, 15 December 2016 at PN99–PN104
374 Transcript, 15 December 2016 at PN105–PN107
375 Transcript, 15 December 2016 at PN106–PN110
376 Transcript, 15 December 2016 at PN111–PN112
377 Transcript, 15 December 2016 at PN141
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https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/151216-transcript-am2014286.pdf
https://www.fwc.gov.au/documents/decisionssigned/html/2016fwc9143.htm
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014286-sub-nds-180716.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014286-sub-awu-060716.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014286-sub-hsu-300616.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014250andors-sub-abi-010716.pdf
https://www.fwc.gov.au/documents/documents/modern_awards/award/ma000103/default.htm
https://www.fwc.gov.au/awards-and-agreements/modern-award-reviews/4-yearly-review/award-stage/award-review-documents/MA000100?m=AM2014/285
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014286-exposure-draft-revised.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014286-summary-technical-drafting-revised-201216.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/supported-employment-services-summary-technical-drafting.pdf
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Issue Clause(s) Summary of change
23 Wage and
allowance tables
$ and % signs inserted378
[688] The Statement deferred consideration of items 7 to 9 which are substantive issues,
item 15 until after the decision in AM2016/8—Payment of wages and item 21 to give the
parties the opportunity to make further submissions. Parties were given until 31 January 2017
to make further submissions in relation to the revised exposure draft.
[689] Updated summaries of the technical and drafting matters and the substantive issues
were republished on 23 November 2017.
[690] The remaining 10 technical and drafting issues are the subject of this decision. The
first matter is a submission from ABI which was made in relation to a number of exposure
drafts and seeks to remove the words “as varied” from clause 1.2. This wording was inserted
into all exposure drafts following the decision in Groups 1A and 1B379 which determined that
awards would be varied rather than superseded. ABI relied on the submissions made during
the Group 3 award stage380 that these words may cause confusion as a reader of an award
may misconstrue the commencement clause as meaning that the award as varied has
retrospective application to 1 January 2010.
Items 2 and 3 – Casual ordinary hourly rate
[691] Items 2 and 3 of the revised summary relate to the definition of ‘casual ordinary
hourly rate’. The HSU made a submission that the definition should be deleted as it is not
used in the award, however, at the conference it was noted that the term appears in Schedule
B.2.381 Accordingly, we do not propose to address that submission further.
Item 4 – Ordinary hourly rate
[692] Item 4 is a submission from the HSU proposing that the definition of ordinary hourly
rate should reference an employee’s grade as opposed to the ‘employee’s classification’ as
follows:
‘ordinary hourly rate means the hourly rate for the employee’s grade specified in clause 15.2,
plus any allowances specified as being included in the employee’s ordinary hourly rate or
payable for all purposes’.
[693] As discussed at the conference and set out in the revised summary of submissions, we
do not propose to vary the exposure draft in the manner proposed by the HSU.
378 Transcript, 15 December 2016 at PN141–PN143
379 [2014] FWCFB 4658 at [8]
380 ABI submission, 15 April 2016
381 Transcript, 15 December 2016 at PN8
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https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014217andors-sub-abi-150416.pdf
https://www.fwc.gov.au/documents/decisionssigned/html/2015fwcfb4658.htm
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/151216-transcript-am2014286.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/supported-employment-services-summary-substantive-231117.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/supported-employment-services-summary-technical-drafting-231117.pdf
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Item 5 – National Employment Standards
[694] Item 5 of the revised summary is a submission from the HSU relating to clause 3.3—
National Employment Standards and this award. The HSU submitted that the words
“whichever makes them more accessible” should be reinstated. As foreshadowed at the
conference,382 this issue has already been the subject of a Full Bench decision383 and we do
not see any reason for departing from this decision. Accordingly, the exposure draft will not
be amended.
Item 10 – Title and Commencement
[695] Item 10 is a submission from ABI relating to the new clause 5 ‘effect of variations
made by the Commission’. ABI submitted that this clause is more appropriately located as a
sub-clause of the ‘Title and Commencement’ clause after sub-clause 1.2, rather than as a
standalone clause. As noted at the conference, this change has been made to ensure
consistency with the plain language structure of modern awards, accordingly, no change will
be made to the exposure draft.
[696] The Full Bench considering the Group 3 awards issued an in-principle decision about
the standard title and commencement clause; we do not propose to deviate from the
decision.384
Item 11 – Casual employment
[697] Item 11 is a submission from the AWU in relation to the casual employment clause.
The AWU submitted that there is a conflict between clause 11.1 that states casual employees
are ‘engaged on an hourly basis’ and clause 11.6 which provides a minimum engagement
period of 3 hours for casual employees. The AWU proposed the following wording to replace
clause 11.1:
‘An employee who does not meet the definition of a part-time employee, and who is not a full-
time employee, will be employed as a casual employee, and will work a maximum of 38
ordinary hours per week.’
[698] In their reply submission dated 22 July 2016,385 ABI opposed this change on the basis
that it seeks to impose a new definition of ‘casual employee’. ABI did not believe that there is
any conflict between 11.1 and 11.6.
[699] It appears that the interested parties expected this matter was going to be addressed by
the Full Bench considering casual and part time employment.386Given that it was not
addressed by that Full Bench it may be timely for the interested parties to re-consider their
positions and advise the Commission whether a substantive variation will be pursued.
382 Transcript, 15 December 2016 at PN50–PN52
383 [2014] FWCFB 9412
384 [2017] FWCFB 3433 at [321]–[328]
385 ABI submission, 22 July 2016
386 Transcript, 15 December 2016 at PN86
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[700] Interested parties are invited to make any further submissions about item 11 by 19
April 2018 as per the Next Steps below.
Item 13 – Classifications
[701] Item 13 is a submission from the HSU to move clause 12.1 to clause 15. As set out in
the revised summary of submissions, we do not intend to make this variation to the exposure
draft.
Item 20 – Allowances
[702] Item 20 is a submission from ABI opposing a new provision relating to allowances, as
discussed at the conference, this matter has already been dealt with and we do not intend to
make any variation to the exposure draft.387
Item 21 – Employees with disabilities
[703] Parties were asked to consider whether the amount of $6.00 per week is still
appropriate.388 Interested parties indicated that they would give this matter further
consideration.
[704] In light of the amendments being made to the Supported Wage System Tool (SWS)
tool by the separate Full Bench this matter will also be referred to that Full Bench for further
consideration.
Item 24 – Casual employees
[705] Item 24 is a submission from the AWU proposing to delete the work “casual” from
row 3 of Table B.2.2 and row 2 of B.2.3 in Schedule B. As set out in the revised summary of
submissions, we do not intend to make this variation to the exposure draft.
[706] The other substantive issues about this award, including the wage assessment tools,
are being dealt with by a separate Full Bench.
[707] There are no other outstanding items for this Full Bench to determine with regards to
the Support Employment Award.
2.32 Surveying Award 2010
[708] An exposure draft based on the Surveying Award 2010389 (Surveying Award) was
published on 13 May 2016. Submissions in response to the exposure draft were received from
the AMWU390 and APESMA.391
387 Transcript, 15 December 2016 at PN113
388 [2009] AIRCFB 945 at [93]
389 MA000066
390 AMWU submission, 8 August 2016
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[709] A summary of submissions was published on 30 November 2016. The AMWU and
the Australian Federation of Employers and Industry (AFEI) appeared at the hearing on
6 December 2016. The summary of submissions included 11 separate matters raised by the
parties. An updated summary of submissions for the technical and drafting matters was
published on 20 November 2017. A revised exposure draft was published on 5 January 2017.
[710] Items 1–4 and item 9 on the summary of submissions were matters raised by the
AMWU. The remaining matters were raised by APESMA.
Item 1 – Definition of Professional surveyor
[711] Item 1 relates to clause 4.2 of the exposure draft. The AMWU submitted that the
clause was included in error as it also appears in the definitions section. The submission was
supported by AFEI.392
[712] The location and duplication of definitions in exposure drafts was considered as part
of the Group 3 6 July 2017 decision.393 On that basis, the definition of ‘Professional
surveyor’ will remain in the coverage clause and be cited in the definitions clause.
Item 2 – Facilitation by individual agreement
[713] Item 2 in the summary concerns clause 7.2(a) which contains a table of facilitative
provisions in the award which may be subject of individual agreement. The AMWU
submitted that a reference to clause 18.5(b) should be added to the table in clause 7.2(a) and
further, that the reference to clause 15.1 should be moved to the table in clause 7.3(a)
(facilitative provisions requiring majority agreement). AFEI did not oppose this submission.
[714] We agree with the submission of the AMWU, the wording in each provision clearly
indicates where the award requires individual or majority agreement. The exposure draft will
be amended accordingly.
Item 2A – Facilitation by majority agreement
[715] In item 2A, the Commission posed a question about whether the cross reference in
clause 7.3(a) to clause 7.3(b) is correct. The interested parties agreed that that the clause
reference is still relevant and should not be varied. As such, we will not vary clause 7.3 of the
exposure draft.
Item 3 – Casual employment
[716] Item 3 relates to clause 11—Casual employment. The AMWU submitted that the
exposure draft should be amended to remove the list of provisions which do not apply to
casual employees (annual leave, personal/carer’s leave, bereavement leave and public
391 APESMA submission, 4 August 2016
392 AFEI submission, 14 December 2016
393 [2017] FWCFB 3433 at [340]
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holidays). The AMWU submitted that this would be consistent with the decision in relation to
exposure drafts in Group 1A and 1B awards394 (the Group 1A and 1B decision). AFEI
opposed this submission on the basis that it does not agree that the Commission has
expressed an intention to remove a list of award provisions that do not apply to casual
employees from exposure drafts.
[717] We agree with AFEI, the Group 1A and 1B decision dealt with a new clause and an
accompanying note that were inserted into all exposure drafts by the Commission to assist
with the identification of provisions that did not apply to casual employees. This caused
significant controversy and the Full Bench determined that the new clause and the note would
not be included. The intention of the Group 1A and 1B decision was not to remove existing
provisions in awards.
[718] The AMWU made a further submission in relation to this matter on 15 December
2016.395 The AMWU submitted that existing list of which matters are compensated for by the
25% casual loading is inconsistent with the previous decisions that established the loading. It
submitted that during the award modernisation process in 2008, a Full Bench of the AIRC
confirmed the standard casual loading for modern awards as 25%, adopting the reasoning in
the Metal, Engineering and Associated Industries Award 1998 casual case.396 As noted by
the AMWU, the Full Bench in the 1998 casuals case determined that not all components for
calculating a fair loading can be specified with precision or individually valued,397 however,
the Full Bench went on to say that the possible exception to this was paid leave.
[719] The Full Bench considering the Group 3 awards issued a decision about a similar
issue in the Market and Social Research Award 2010398 (Market and Social Research
Award). The Full Bench determined the following:
‘(i) Clause 6.5(c)(ii)–Casual loading
[95] Clause 6.5(c)(ii) of the exposure draft refers to the casual loading being paid instead of
various “entitlements” of full-time or part-time employment. Ai Group submit that this is an
oversimplification of the purpose of the casual loading and that the word “attributes”, which
appears in the current award is more appropriate. We agree. The exposure draft will be
revised to read:
‘The casual loading is paid instead of annual leave, personal/carer’s leave, notice of
termination, redundancy benefits and the other entitlements attributes of full-time or
part-time employment.’399
[720] Whilst the matters raised in the Market and Social Research Award are not identical
to those raised in the Surveying Award, we acknowledge that the Group 3 Full Bench opted
to maintain the wording of the current clause.
394 [2014] FWCFB 9412 at [68]–[69]
395 AMWU submission, 15 December 2016
396 [2008] AIRCFB 1000
397 T4991 para 155
398 MA000030
399 [2017] FWCFB 3433 at [95]
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[721] At a conference on 25 July 2017, it was noted that the variation sought by the AMWU
would not make any substantive variation to entitlements but AFEI was provided with a
further opportunity to respond.400
[722] AFEI subsequently wrote to the Commission and recommended the following re-
drafting of clause 11.2 of the Surveying Award exposure draft:401
‘11.2 For each ordinary hour worked, a casual employee will be paid the minimum hourly
rate for the work performed. In addition, a casual employee will receive a 25%
loading instead of annual leave, paid personal/carer’s leave, bereavement paid
compassionate leave and payment for absence on public holidays.’
[723] AFEI has not provided any reasons why re-drafting the clause in the way sought by
the AMWU would substantively vary entitlements. Conversely, in our view, AFEI’s alternate
proposal goes beyond a technical and drafting amendment. We accept the AMWU’s
submission and will amend the Surveying Award exposure draft as follows:
11.2 For each ordinary hour worked, a casual employee will be paid the minimum hourly
rate for the work performed. In addition, a casual employee will receive a 25%
loading. instead of annual leave, personal/carer’s leave, bereavement leave and public
holidays.
Item 4 – Professional development
[724] Item 4 is a minor drafting issue. The AMWU submitted that the first comma in clause
12.2 of the exposure draft should be removed. This submission is supported by AFEI. We
will vary the exposure draft accordingly.
Item 5 – Ordinary hours of work
[725] At the hearing, the AMWU indicated that item 5 on the summary of submissions
relating to clause 14—Ordinary hours of work may be a substantive issue.402 This matter was
raised by APESMA in response to a question posed by the Commission in the exposure draft
seeking clarification of the period over which the 38 ordinary hours per week are averaged.
APESMA submitted that there were averaging provisions in NAPSAs but that their
provisions were not consistent. APESMA submitted that in the absence of clarity the default
position should be that the ordinary hours should not exceed 38 per week. AFEI opposed
APESMA’s submission. AFEI submitted that the Surveying Award currently allows for the
averaging of weekly hours and that removing this provision would be a substantive change.
[726] We agree with the AMWU and AFEI, the change proposed by APESMA would be a
substantive change and will be referred to a separately constituted Full Bench for
determination. Further information will be provided in the Next steps section below.
400 Transcript, 25 July 2017 at PN31
401 AFEI submission, 26 July 2017
402 Transcript, 6 December 2016 at PN319
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/20161206-am2014250andors.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014287-sub-afei-260717.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/250717_am2014257-273-287.htm
[2018] FWCFB 1548
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Item 6 – Breaks
[727] Item 6 was raised in response to a question from the Commission in the exposure draft
in relation to clause 16—Breaks. APESMA submitted that clauses 16.2(a) and 16.2(b) should
be read together to understand the context of the provisions. A break “without ceasing work”
can then be interpreted by reference to established custom and practice as allowing an
employee to “enjoy a beverage whilst remaining in the immediate work environment”.403
This submission was not opposed by AFEI who were in agreement that it is not necessary to
amend the exposure draft.
[728] Accordingly, we do not propose to amend the exposure draft in relation to clause 16.
Item 7 – Overtime and penalty rates
[729] In item 7, parties were asked whether the wording in clause 20.1, “in excess of normal
hours” should be amended to read “in excess of or outside the spread of ordinary hours” to
make it clear that overtime is also payable when worked outside the spread of hours.
APESMA’s submission in support of the suggested amendment is item 7 in the summary of
submissions. AFEI did not oppose APESMA’s submission.
[730] Accordingly, and consistent with our approach in the Architects Award above, we
will amend the exposure draft in the manner proposed by the Commission as follows:
20.1 An employer must pay an employee for all authorised time worked in excess of or
outside the spread of ordinary hours of duty at the rate of 150% of the minimum
hourly rate for the first three hours and 200% of the minimum hourly rate thereafter.
Item 8 – Time off instead of payment for overtime and Sundays and Public Holidays
[731] Item 8 in the summary deals with clauses 20.2 and 20.3—Time off instead of payment
for overtime. AFEI submitted that this matter is no longer relevant because the Commission’s
model time off instead of payment for overtime has been inserted into the modern award.404
We agree that clause 20.2 should be replaced by the model term and the exposure draft will
be amended to include the model term. Clause 20.3 however, does not form part of the model
term and the reference to ‘working on a Sunday’ will be retained.
Item 9 – Sundays and Public Holidays
[732] Item 9 is the final submission of the AMWU and also relates to clause 20.3(c) of the
exposure draft. This clause replicates 23.9 of the current Surveying Award. The AMWU
submitted that this provision should be moved out of clause 20.3 to a new clause 20.7 entitled
“Returning home when normal means of transport is not available”. AFEI did not oppose the
AMWU’s submission.
[733] We agree with the AMWU and the exposure draft will be amended accordingly.
403 APESMA submission, 4 August 2016
404 PR584162
https://www.fwc.gov.au/documents/awardsandorders/html/pr584162.htm
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014287-sub-apesma-040816.pdf
[2018] FWCFB 1548
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Items 10 and 10A – Public holidays
[734] Items 10 and 10A were questions posed to the parties about whether the words “is
deemed to be work in excess or outside of ordinary hours of duty and” in clause 24.2 are
necessary. If those words are deleted, the clause would simply refer back to clause 13, and
the payment would be made as either a penalty or overtime as required. APESMA submitted
that the words assist in the clarification of the entitlement and the avoidance of ambiguity.
AFEI and the AMWU405 agree with the submission of APESMA.
[735] Accordingly, we will not vary the exposure draft.
Item 11 – School-based Apprentices
[736] Item 11 deals with a question from the Commission in relation to Schedule E—School
based apprentices. The Surveying Award does not contain any apprentice provisions and
interested parties were asked whether the schedule is required. APESMA and AFEI submit
that the schedule is unnecessary and support its deletion.
[737] We agree; Schedule E will be deleted from the exposure draft.
[738] There are no other outstanding issues for this Full Bench to determine with regards to
the Surveying Award.
2.33 Travelling Shows Award 2010
[739] On the 16 November 2016 the Commission published an initial exposure draft based
on the Travelling Shows Award 2010406 (Travelling Shows Award) together with a
comparison document showing the changes made to the structure and language in the award.
[740] Interested parties were provided with an opportunity to file written submissions and
submissions in reply about the initial exposure draft. Submissions were received from the
Showmen’s Guild of Australasia (SGA) and AFEI.
[741] Deputy President Gostencnik provided a Final Report to the Full Bench on 24 April
2017 setting out which matters remain unresolved.407 Updated summary of substantive
matters and summary of technical and drafting matters were also published in April 2017.
[742] Updated summaries of submissions were published for the technical and drafting
matters and the substantive issues on 20 November 2017. There are no outstanding technical
and drafting matters, however a number of substantive submissions require determination.
[743] Items S2, S3 and S4 are about clause 22 of the exposure draft; penalty rates for
Sundays and public holidays for casuals. The Commission posed a question to interested
405 AMWU submission, 9 December 2016
406 MA000102
407 See updated Summary of submissions–substantive issues and Summary of submissions–technical and drafting
https://www.fwc.gov.au/sites/awardsmodernfouryr/travelling-shows-summary-technical-drafting-revised-190417.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/travellingshows-substantive-summary-subs-revised-210417.pdf
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000102/default.htm
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014287-sub-amwu-091216.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/travelling-summary-substantive-201117.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/travelling-shows-summary-technical-drafting-201117.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/travelling-shows-summary-technical-drafting-revised-190417.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/travellingshows-substantive-summary-subs-revised-210417.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/travellingshows-substantive-summary-subs-revised-210417.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014288-draft-report-240417.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/comparison-travelling-shows.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/exposure-draft-travelling-shows.pdf
[2018] FWCFB 1548
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parties about whether clause 22.1 could be deleted now that the nominal expiry date of the
clause has lapsed and whether clause 22.2 now applies to all employees, including casuals.
[744] The Commission’s research area has undertaken research which is set out in
Attachment C. The background information has been compiled to demonstrate the history of
the clause and the approach taken by other Full Benches considering transitional provisions
in modern awards.
[745] The research paper sets out three options for the Full Bench and interested parties to
consider. Option 1 is to combine clause 22.1 and clause 22.2. Option 2 is to develop a new
casual employment clause. Option 3 is to delete clause 22.1 entirely.
[746] Our provisional view is that Option 1 should be adopted. As per the Next steps below,
interested parties will have until 19 April 2018 to respond to the provisional view having
regard to that background research. Once any comments have been received, we will consider
whether the exposure draft can be finalised or whether a separate Full Bench will need to
review the variation as a substantive matter.
2.34 Water Industry Award 2010
[747] On 3 November 2016 the Commission published an initial exposure draft based on the
Water Industry Award 2010408 (Water Award) together with a comparison document showing
the changes made to the structure and language in the award. Interested parties were provided
with an opportunity to file written submissions and submissions in reply on the drafting and
technical issues in the exposure draft. Submissions were received from the following parties:
UV;
Ai Group;
AMWU;
AWU; and
ASU
[748] A draft report was published on 19 April 2017 setting out the matters dealt with at a
conference held on 30 March 2017. A number of issues raised were resolved at this
conference. An updated draft report was published on 9 May 2017. Revised exposure drafts
along with a summary of submissions document were published on 15 May 2017 and 30 May
2017. A further revised exposure draft was published on 20 July 2017. The draft report of 9
May 2017 called for further comments about the contents of the draft report.
[749] Ai Group wrote to the Commission on behalf of the above mentioned parties.409 The
correspondence set out the position reached on each of the outstanding issues and requested
that the conference on 30 May 2017 be cancelled because the parties had reached an impasse
on the outstanding matters.
408 MA000113
409 Ai Group correspondence, 26 May 2017
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014289-sub-aig-ors-260517.pdf
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000113/default.htm
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014289-draftreport-190417.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/comparison-water.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/exposure-draft-water.pdf
[2018] FWCFB 1548
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[750] With reference to the summary of submissions document published on 15 May 2017,
and republished on 20 November 2017, Ai Group’s correspondence explained that:
Items 4 and 5 could not be resolved through discussions between the parties
Items 10 and 11 were agreed between the parties
[751] We are satisfied that it is appropriate to make the changes agreed to by the parties, as
outlined in the Final Report to the Full Bench of 27 July 2017 and Ai Group’s
correspondence of 26 May 2017.
[752] It remains for the Full Bench to determine the outstanding items 4 and 5 which pertain
to the list of facilitative provisions in clause 7.2 of the exposure draft. This is considered in
more detail at [756] below.
[753] If interested parties wish to pursue the outstanding substantive variations noted in the
summary of submissions published on 8 March 2017, the matters will be referred to a
separately constituted Full Bench. Parties are directed to advise the Commission about
whether these matters are being pursued by 19 April 2018 as per the Next steps below.
[754] A revised exposure draft reflecting the agreed position of the parties’ will be
published shortly and interested parties will be provided with a final opportunity to comment,
see the Next Steps below.
3. Other matters
[755] There were a number of matters that arose in multiple awards and will be more
efficiently dealt with simultaneously.
3.1 Facilitative provisions
[756] The list of facilitative provisions appearing in each modern award should, as far as
possible, list a number of model provisions. This was established in a previous Full Bench
decision.410 There are some award-specific provisions that may be included as additional
facilitative provisions, however, all modern awards that contain the following provisions
should list them in the facilitative provisions clause:
Time off instead of payment for overtime;
Annual leave in advance;
Cashing out of annual leave; and
Public holidays – substitution.
[757] Ai Group made largely identical submissions about the facilitative provisions in the
Book Industry Award, the Food Manufacturing Award, the Professional Employees Award
and the Water Award.
410 [2014] FWCFB 9412 at [37]
https://www.fwc.gov.au/documents/decisionssigned/html/2014fwcfb9412.htm
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/water-substantive-summary-subs.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014289-finalreport-270717.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/water-summary-technical-drafting-201117.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/water-summary-technical-drafting-revised-150517.pdf
[2018] FWCFB 1548
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[758] Effectively, in each of these awards, Ai Group submitted that references to Annual
leave in advance and Cashing out of annual leave should be removed from the table of
facilitative provisions.411 Ai Group submits that these provisions are not facilitative in the
sense contemplated by the awards.
[759] Consistent with the previous Full Bench decision on this point, we disagree with Ai
Group’s submission and decline to remove these provisions from the facilitative provisions
list in any of these modern awards.
3.2 Annual leave loading
[760] The FWO identified an ambiguity in the phrasing of annual leave loading provisions
in a number of modern awards including the Food Manufacturing Award and the Car Parking
Award.
[761] The existing provisions give rise to inconsistent calculations of annual leave loading
depending on whether the clause is interpreted as applying on each day or across the entire
period of leave.
[762] As discussed in the Group 3 Decision,412 this matter will be referred to the Plain
language re-drafting process to develop a consistent approach.413
3.3 Overtime for casuals
[763] A separate Full Bench has been constituted to deal with matters pertaining to overtime
for casual employees.414 The Commission has identified a number of awards where it is
unclear whether casuals are entitled to overtime at all, and if so, when and at what rate.
[764] The outstanding items about overtime for casuals in the Group 4 awards will be
considered by the dedicated Full Bench.
4. Next steps
[765] There are a number of outstanding matters and provisional views set out throughout
this decision. As discussed, interested parties are being provided a further opportunity to
comment on these matters and clarify any drafting proposals.
[766] All submissions are to be forwarded to amod@fwc.gov.au by 4.00 pm on 19
April 2018.
411 Ai Group submission, 18 January 2017
412 [2017] FWCFB 5536 at [583]–[591]
413 [2018] FWC 1544
414 AM2017/51, see [2017] FWCFB 6417
https://www.fwc.gov.au/documents/decisionssigned/html/2017fwcfb6417.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2018fwc1544.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2017fwcfb5536.htm
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014258andors-sub-aig-180117.pdf
mailto:amod@fwc.gov.au
[2018] FWCFB 1548
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[767] The outstanding technical and drafting matters will be finalised in a subsequent
decision once the deadline for comment has lapsed. Any party seeking an oral hearing in
respect of any issue should provide such a request by 19 April 2018.
PRESIDENT
Appearances:
E Arrabalde, an individual
M Adler, Housing Industry Association
J Arndt, Australian Business Industrial and NSW Business Chamber
D Astley, Australian Manufacturing Workers’ Union
R Baonza, Civil Contractors Federation
K Barlow, Community and Public Sector Union
R Bhatt, Ai Group
S Bull, United Voice
S Burnley, Shop, Distributive and Allied Employees Association
M Butler, Association of Professional Engineers, Scientists and Managers, Australia
H Carayannis, Clubs Australia Industrial
M Chesher, Media Entertainment and Arts Alliance
R Clancy, Australian Chamber of Commerce and Industry
T Clarke, Australian Council of Trade Unions
DJW Clifford, Funeral Directors Association (NSW and QLD)
P Coffey, CEPU – Plumbing Division
D Colley, Australian Education Union
P Cooper, Club Managers Association
S Crawford, Australian Workers’ Union
A Crowley, Media Entertainment and Arts Alliance
P Eberhard, Master Plumbers and Mechanical Services Association of Australia
T Evans, Australian Hotels Association
B Ferguson, Ai Group
S Forster, Australian Federation of Employers and Industry
J Fox, Shop, Distributive and Allied Employees Association
M Galbray, Shop, Distributive and Allied Employees Association
L Gavin, National Aboriginal and Torres Strait Islander Health Worker Association
S Gheller, Association of Professional Engineers, Scientists and Managers, Australia
J Gherjestani, Australian Workers’ Union
J Gunn, Community Corrections Solutions Australia
D Hamilton, Australian Federation of Employers and Industry
K Jack, Australian Federation of Employers and Industry
G Jervis, National Electrical and Communications Association
A Jones-Valador, Australian Federation of Employers and Industry
S Jones, News Corp and others
S Kenna, National Tertiary Education Industry Union
J Knight, Australian Services Union
K Knopp, Association of Independent Schools
[2018] FWCFB 1548
119
R Krajewski, Fire Protection Association Australia
R Liebhaber, Health Services Union
G Liggins, Aged and Community Services Australia and Leading Aged Services Australia
S Maxwell, Construction, Forestry, Mining and Energy Union – Construction and General
Division
J Minchinton, Australian Hotels Association and others
JE Murdoch, Cinema Industry Employers
N Niven, Australian Institute of Marine and Power Engineers
G Noble, Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and
Allied Services Union of Australia
M Nguyen, Australian Manufacturing Workers’ Union
A Odgers, Independent Education Union
J O’Dwyer, Master Electricians Australia
G Parkes, Accommodation Association of Australia and Restaurant and Catering Australia
R Paina, Shop, Distributive and Allied Employees Association
V Paul, Ai Group
M Pegg, Jobs Australia
S Pole, United Voice
C Pugsley, Australian Higher Education Industrial Association
M Rizzo, Australian Services Union
N Ruskin, Association of Australian Medical Research Institutes
R Sostarko, Master Builders Australia
K Srdanovic, Qantas Group
D Strait, Master Grocers Australia
L Svendsen, Health Services Union
R Tait, Clubs Australian Industrial
P Thompson Australian Federation of Employers and Industry
K Thomson, Australian Business Industrial and NSW Business Chamber
N Tindley, Australian Retailers Association
W Townsend, Community and Public Sector Union
E Van Der Linden, South Australian Chamber of Commerce and Industry t/a Business SA
O Valaire, Master Plumbers Association of NSW
K Westwood, Cinema Industry Employers
C Young, Master Electricians Australia
A Zadel, Australian Federation of Employers and Industry
Hearing details:
Group 3 and 4 awards
18 November 2014
Melbourne
Group 3 and 4 awards
14 December 2015
Melbourne
Group 4 Awards
24 August 2016
Sydney
[2018] FWCFB 1548
120
Final written submissions:
Australian Business Industrial and NSW Business Chamber, 1 December 2017
Australian Federation of Air Pilots, 4 December 2017
Australian Federation of Employers and Industries, 20 September 2017
Australian Industry Group, 20 November 2017
Association of Professional Engineers, Scientists and Managers, Australia, 20 September
2017
Australian Workers' Union, 8 September 2017
Business SA, 24 October 2017
CEPU - Plumbing Division, 25 October 2017
Cinema Industry Employers, 27 November 2017
Fire Protection Association Australia, 17 October 2017
Live Performance Australia, 2 November 2017
Media, Entertainment and Arts Alliance, 29 January 2018
National Fire Industry Association, 25 October 2017
News Limited and others, 22 February 2017
Qantas Group, 4 December 2017
Textile, Clothing and Footwear Union of Australia, 20 September 2017
United Voice, 4 December 2017
________________________________________________________________
Printed by authority of the Commonwealth Government Printer
PR601193
[2018] FWCFB 1548
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Attachment A
List of Group 4 awards
Award code Award title Matter
number
Sub-
grouping
MA000115 Aboriginal Community Controlled Health
Services Award 2010
AM2014/250 4A
MA000018 Aged Care Award 2010 AM2014/251 4A
MA000046 Air Pilots Award 2010 AM2014/252 4B
MA000047 Aircraft Cabin Crew Award 2010 AM2014/253 4B
MA000048 Airline Operations—Ground Staff Award 2010 AM2014/254 4B
MA000049 Airport Employees Award 2010 AM2014/255 4B
MA000080 Amusement, Events and Recreation Award 2010 AM2014/256 4D
MA000079 Architects Award 2010 AM2014/257 4C
MA000078 Book Industry Award 2010 AM2014/258 4D
MA000091 Broadcasting and Recorded Entertainment
Award 2010
AM2014/259 4C
MA000020 Building and Construction General On-site
Award 2010
AM2014/260 4C
MA000095 Car Parking Award 2010 AM2014/261 4E
MA000070 Cemetery Industry Award 2010 AM2014/262 4E
MA000120 Children’s Services Award 2010 AM2014/263 4A
MA000096 Dry Cleaning and Laundry Industry Award 2010 AM2014/264 4F
MA000077 Educational Services (Teachers) Award 2010 AM2014/266 4A
MA000025 Electrical, Electronic and Communications
Contracting Award 2010
AM2014/265 4C
MA000003 Fast Food Industry Award 2010 AM2014/267 4F
MA000073 Food, Beverage and Tobacco Manufacturing
Award 2010
AM2014/268 4E
MA000105 Funeral Industry Award 2010 AM2014/269 4E
MA000004 General Retail Industry Award 2010 AM2014/270 4F
MA000005 Hair and Beauty Industry Award 2010 AM2014/271 4F
MA000009 Hospitality Industry (General) Award 2010 AM2014/272 4F
MA000064 Hydrocarbons Field Geologists Award 2010 AM2014/273 4C
MA000029 Joinery and Building Trades Award 2010 AM2014/274 4C
MA000067 Journalists Published Media Award 2010 AM2014/275 4D
MA000081 Live Performance Award 2010 AM2014/276 4D
MA000117 Mannequins and Models Award 2010 AM2014/277 4F
MA000032 Mobile Crane Hiring Award 2010 AM2014/278 4C
MA000097 Pest Control Industry Award 2010 AM2014/279 4E
MA000036 Plumbing and Fire Sprinklers Award 2010 AM2014/280 4C
https://www.fwc.gov.au/awards-and-agreements/modern-award-reviews/4-yearly-review/award-stage/award-review-documents/MA000036?m=AM2014/280
http://www.fwc.gov.au/documents/modern_awards/award/ma000036/default.htm
https://www.fwc.gov.au/awards-and-agreements/modern-award-reviews/4-yearly-review/award-stage/award-review-documents/MA000097?m=AM2014/279
https://www.fwc.gov.au/awards-and-agreements/modern-award-reviews/4-yearly-review/award-stage/award-review-documents/MA000032?m=AM2014/278
http://www.fwc.gov.au/documents/modern_awards/award/ma000032/default.htm
https://www.fwc.gov.au/awards-and-agreements/modern-award-reviews/4-yearly-review/award-stage/award-review-documents/MA000117?m=AM2014/277
https://www.fwc.gov.au/awards-and-agreements/modern-award-reviews/4-yearly-review/award-stage/award-review-documents/MA000081?m=AM2014/276
https://www.fwc.gov.au/awards-and-agreements/modern-award-reviews/4-yearly-review/award-stage/award-review-documents/MA000067?m=AM2014/275
https://www.fwc.gov.au/awards-and-agreements/modern-award-reviews/4-yearly-review/award-stage/award-review-documents/MA000029?m=AM2014/274
http://www.fwc.gov.au/documents/modern_awards/award/ma000029/default.htm
https://www.fwc.gov.au/awards-and-agreements/modern-award-reviews/4-yearly-review/award-stage/award-review-documents/MA000064?m=AM2014/273
http://www.fwc.gov.au/documents/modern_awards/award/ma000064/default.htm
https://www.fwc.gov.au/awards-and-agreements/modern-award-reviews/4-yearly-review/award-stage/award-review-documents/MA000009?m=AM2014/272
https://www.fwc.gov.au/awards-and-agreements/modern-award-reviews/4-yearly-review/award-stage/award-review-documents/MA000005?m=AM2014/271
https://www.fwc.gov.au/awards-and-agreements/modern-award-reviews/4-yearly-review/award-stage/award-review-documents/MA000004?m=AM2014/270
https://www.fwc.gov.au/awards-and-agreements/modern-award-reviews/4-yearly-review/award-stage/award-review-documents/MA000105?m=AM2014/269
https://www.fwc.gov.au/awards-and-agreements/modern-award-reviews/4-yearly-review/award-stage/award-review-documents/MA000073?m=AM2014/268
https://www.fwc.gov.au/awards-and-agreements/modern-award-reviews/4-yearly-review/award-stage/award-review-documents/MA000003?m=AM2014/267
https://www.fwc.gov.au/awards-and-agreements/modern-award-reviews/4-yearly-review/award-stage/award-review-documents/MA000025?m=AM2014/265
http://www.fwc.gov.au/documents/modern_awards/award/ma000025/default.htm
https://www.fwc.gov.au/awards-and-agreements/modern-award-reviews/4-yearly-review/award-stage/award-review-documents/MA000077?m=AM2014/266
http://www.fwc.gov.au/documents/modern_awards/award/ma000077/default.htm
https://www.fwc.gov.au/awards-and-agreements/modern-award-reviews/4-yearly-review/award-stage/award-review-documents/MA000096?m=AM2014/264
https://www.fwc.gov.au/awards-and-agreements/modern-award-reviews/4-yearly-review/award-stage/award-review-documents/MA000120?m=AM2014/263
http://www.fwc.gov.au/documents/modern_awards/award/ma000120/default.htm
https://www.fwc.gov.au/awards-and-agreements/modern-award-reviews/4-yearly-review/award-stage/award-review-documents/MA000070?m=AM2014/262
https://www.fwc.gov.au/awards-and-agreements/modern-award-reviews/4-yearly-review/award-stage/award-review-documents/MA000095?m=AM2014/261
https://www.fwc.gov.au/awards-and-agreements/modern-award-reviews/4-yearly-review/award-stage/award-review-documents/MA000020?m=AM2014/260
http://www.fwc.gov.au/documents/modern_awards/award/ma000020/default.htm
https://www.fwc.gov.au/awards-and-agreements/modern-award-reviews/4-yearly-review/award-stage/award-review-documents/MA000091?m=AM2014/259
https://www.fwc.gov.au/awards-and-agreements/modern-award-reviews/4-yearly-review/award-stage/award-review-documents/MA000078?m=AM2014/258
https://www.fwc.gov.au/awards-and-agreements/modern-award-reviews/4-yearly-review/award-stage/award-review-documents/MA000079?m=AM2014/257
http://www.fwc.gov.au/documents/modern_awards/award/ma000079/default.htm
https://www.fwc.gov.au/awards-and-agreements/modern-award-reviews/4-yearly-review/award-stage/award-review-documents/MA000080?m=AM2014/256
https://www.fwc.gov.au/awards-and-agreements/modern-award-reviews/4-yearly-review/award-stage/award-review-documents/MA000049?m=AM2014/255
http://www.fwc.gov.au/documents/modern_awards/award/ma000049/default.htm
https://www.fwc.gov.au/awards-and-agreements/modern-award-reviews/4-yearly-review/award-stage/award-review-documents/MA000048?m=AM2014/254
http://www.fwc.gov.au/documents/modern_awards/award/ma000048/default.htm
https://www.fwc.gov.au/awards-and-agreements/modern-award-reviews/4-yearly-review/award-stage/award-review-documents/MA000047?m=AM2014/253
http://www.fwc.gov.au/documents/modern_awards/award/ma000047/default.htm
https://www.fwc.gov.au/awards-and-agreements/modern-award-reviews/4-yearly-review/award-stage/award-review-documents/MA000046?m=AM2014/252
http://www.fwc.gov.au/documents/modern_awards/award/ma000046/default.htm
https://www.fwc.gov.au/awards-and-agreements/modern-award-reviews/4-yearly-review/award-stage/award-review-documents/MA000018?m=AM2014/251
http://www.fwc.gov.au/documents/modern_awards/award/ma000018/default.htm
https://www.fwc.gov.au/awards-and-agreements/modern-award-reviews/4-yearly-review/award-stage/award-review-documents/MA000115?m=AM2014/250
http://www.fwc.gov.au/documents/modern_awards/award/ma000115/default.htm
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Award code Award title Matter
number
Sub-
grouping
MA000065 Professional Employees Award 2010 AM2014/281 4E
MA000013 Racing Clubs Events Award 2010 AM2014/282 4D
MA000058 Registered and Licensed Clubs Award 2010 AM2014/283 4F
MA000119 Restaurant Industry Award 2010 AM2014/284 4F
MA000100 Social, Community, Home Care and Disability
Services Industry Award 2010
AM2014/285 4A
MA000103 Supported Employment Services Award 2010 AM2014/286 4A
MA000066 Surveying Award 2010 AM2014/287 4C
MA000102 Travelling Shows Award 2010 AM2014/288 4D
MA000113 Water Industry Award 2010 AM2014/289 4E
https://www.fwc.gov.au/awards-and-agreements/modern-award-reviews/4-yearly-review/award-stage/award-review-documents/MA000113?m=AM2014/289
https://www.fwc.gov.au/awards-and-agreements/modern-award-reviews/4-yearly-review/award-stage/award-review-documents/MA000102?m=AM2014/288
https://www.fwc.gov.au/awards-and-agreements/modern-award-reviews/4-yearly-review/award-stage/award-review-documents/MA000066?m=AM2014/287
http://www.fwc.gov.au/documents/modern_awards/award/ma000066/default.htm
https://www.fwc.gov.au/awards-and-agreements/modern-award-reviews/4-yearly-review/award-stage/award-review-documents/MA000103?m=AM2014/286
http://www.fwc.gov.au/documents/modern_awards/award/ma000103/default.htm
https://www.fwc.gov.au/awards-and-agreements/modern-award-reviews/4-yearly-review/award-stage/award-review-documents/MA000100?m=AM2014/285
http://www.fwc.gov.au/documents/modern_awards/award/ma000100/default.htm
https://www.fwc.gov.au/awards-and-agreements/modern-award-reviews/4-yearly-review/award-stage/award-review-documents/MA000119?m=AM2014/284
https://www.fwc.gov.au/awards-and-agreements/modern-award-reviews/4-yearly-review/award-stage/award-review-documents/MA000058?m=AM2014/283
https://www.fwc.gov.au/awards-and-agreements/modern-award-reviews/4-yearly-review/award-stage/award-review-documents/MA000013?m=AM2014/282
https://www.fwc.gov.au/awards-and-agreements/modern-award-reviews/4-yearly-review/award-stage/award-review-documents/MA000065?m=AM2014/281
123
Attachment B
Dry Cleaning and Laundry Industry Award 2010 research
*Research based on the revised Summary of Submissions – Technical and Drafting (15 May
2017)
Item 9
The Commission’s research area was asked to research the history of clause 13.1 of the
Exposure Draft (clause 21.1(a) of the current award).415
AWU submitted that the term “average” should be deleted because the award does not
provide a mechanism for averaging hours for dry cleaning workplaces.
Current clause
‘21.1 Ordinary hours of work—dry cleaning workplaces
(a) The ordinary hours of work will average 38 hours per week.’
Exposure draft clause
‘13.1 The ordinary hours of work for a full-time employee will average 38 hours per week.’
(deletion agreed)
Response
The use of the word ‘average’ has been a feature of the modern award since it commenced
operation in January 2010. The history of the clause has been considered in order to identify
which pre-reform awards and NAPSAs were used to develop the modern award provision.
History of the Dry Cleaning and Laundry Award 2010
The modern award replaced a number of dry cleaning and laundry industry awards in Stage 4
of the award modernisation process. The following table identifies instruments that contained
averaging of hours provisions. There does not appear to be a uniform approach to the
averaging provision in any of the instruments listed.
Instrument Jurisdiction Clause
Dry Cleaning Industry Award 2000 (AP779906) CAV Cl. 20
Laundries, Dry Cleaning and Laundromats (Northern
Territory) Award 2002 (AP819232)
CRN Cl. 24
Dry Cleaning (State) Award (AN120187) NSW Cl. 19
Dry Cleaning and Dyeing Industry Award - Southern
and Central Divisions 2004 (AN140098)
QLD Cl. 6.1
Dry Cleaners Award (AN150048) SA Cl. 6
415 MA000096
https://www.fwc.gov.au/documents/documents/modern_awards/award/ma000096/default.htm
http://www.airc.gov.au/consolidated_awards/an/an150048/asframe.html
http://www.airc.gov.au/consolidated_awards/an/an140098/asframe.html
http://www.airc.gov.au/consolidated_awards/an/an120187/asframe.html
http://www.airc.gov.au/consolidated_awards/ap/ap819232/asframe.html
http://www.airc.gov.au/consolidated_awards/ap/ap779906/asframe.html
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/dry-cleaning-summary-technical-drafting-revised-150517.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/dry-cleaning-summary-technical-drafting-revised-150517.pdf
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Dry Cleaning and Laundry Award 1979 (AN160103) WA Cl. 9
Laundry and Dry Cleaning Award (AN170054) TAS Cl. 19
In the Stage 4 Award Modernisation decision,416 the Full Bench indicated an intention to
separate the hours of work (and by default any averaging provisions) in the dry cleaning and
the laundry streams.
The following excerpt from the decision demonstrates the Full Bench’s consideration and
foreshadowed the need to revisit the matter in the future:
‘While we have decided to retain the separate dry cleaning and laundry streams for wages,
hours of work and classification structures which appeared in the exposure draft we do not
rule out the possibility that these provisions could be rationalised at some time in the future.
On the material available to us maintenance of separate structures seems the least disruptive
course.’417
The decision went on to note:
‘In relation to hours of work, we have retained the span of hours for both dry cleaning and
laundry sectors as set out in the exposure draft.’418
Given the ambiguity that the use of the term ‘average’ creates, the parties could discuss how
the clause currently operates and whether it could be clarified by either removing the word
‘average’ or developing an averaging mechanism. Parties may wish to comment on whether
it may be more appropriate for this matter to be resolved as a substantive issue.
416 [2009] AIRCFB 945
417 [2009] AIRCFB 945 at [34]
418 [2009] AIRCFB 945 at [38]
http://www.airc.gov.au/awardmod/databases/dry_cleaning/Decisions/2009aircfb945.htm#P242_18417
http://www.airc.gov.au/awardmod/databases/dry_cleaning/Decisions/2009aircfb945.htm#P242_18417
http://www.airc.gov.au/awardmod/databases/dry_cleaning/Decisions/2009aircfb945.htm#P242_18417
http://www.airc.gov.au/consolidated_awards/an/an170054/asframe.html
http://www.airc.gov.au/consolidated_awards/an/an160103/asframe.html
[2018] FWCFB 1548
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Attachment C
Travelling Shows Award 2010 research
Current modern award clause
‘23.4 Sundays and public holidays—casual employees
(a) All ordinary hours worked on Sundays or public holidays will be paid at the
base hourly rate for the classification plus the relevant casual loading, except
that all time worked on Good Friday, Royal Queensland Show Day and
Christmas Day will be paid for at the rate of double time and a half all day.
Public holiday penalties will be in substitution for any other penalty or
loading applicable under the terms of this award.
(b) Clause 23.3(a) will apply until 31 December 2014. This clause is to be
reviewed as part of the four yearly review of modern awards as provided for
in section 156 of the Act.’
(emphasis added)
Exposure draft clause
‘22.1 Sundays and public holidays—casual employees
(a) All ordinary hours worked on Sundays or public holidays will be paid at the
minimum hourly rate for the classification plus the relevant casual loading,
except that all time worked on Good Friday, Royal Queensland Show Day
and Christmas Day will be paid for at the rate of 250% of the minimum
hourly rate. Public holiday penalties will be in substitution for any other
penalty or loading applicable under the terms of this award.
(b) Clause 22.1(a) will apply until 31 December 2014. This clause is to be
reviewed as part of the four yearly review of modern awards as provided for
in section 156 of the Act.’
(emphasis added)
Travelling Shows Award
The Travelling Shows Award transitional period provided parties five years until
31 December 2014 to consider whether, and in what form, provisions relating to casual
employee loadings on weekends and public holidays should be included in the award as part
of the safety net.
Submissions in the 4 yearly review of modern awards
It is the submission of Showmen’s Guild of Australasia (SGA) that the nature of the industry
is characterised by the requirement to work on weekends and public holidays, almost to the
exclusion of weekdays.419 SGA submitted the existing award accounts for the nature of the
industry in keeping with the requirements of s. 134(1)(da) of the Act.
419 SGA submission, 2 March 2015
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014288-sub-showmensguild-020315.pdf
https://www.fwc.gov.au/documents/documents/modern_awards/award/ma000102/default.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/ma000102/default.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/ma000102/default.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/ma000102/default.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/ma000102/default.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/ma000102/default.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/ma000102/default.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/ma000102/default.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/ma000102/default.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/ma000102/default.htm
[2018] FWCFB 1548
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SGA submitted that to develop a new casual clause would offend the modern awards
objective by increasing employment costs with no offset provided to employers for the
additional remuneration payable to employees.420 By the same token, the Australian
Federation of Employers and Industries (AFEI) maintain the provisions of “the Exposure
Draft are clear that Clause 22.1 only applied until 31 December 2014”.421
Options
The Commission’s research area has considered how the existing clause could be re-drafted
and has developed a number of options for the Full Bench to consider. The four options listed
would each require further consideration as they would be substantive variations to the
existing modern award provisions.
Option 1 – Combine clause 22.1 and clause 22.2
‘22.1 Sundays and public holidays—full-time, part-time and casual employees
(a) All ordinary hours worked on a Sunday will be paid for at an employee’s
ordinary rate.
(b) All time worked on a public holiday by a full-time or part-time employee will
be paid for at 150% of the ordinary hourly rate, and the employee will be
granted an additional day off to be taken within 14 days of working on the
public holiday.
(c) All time worked on a public holiday by a casual employee will be paid for at
the ordinary hourly rate in clause 16 plus the casual loading under clause
11.2.
(d) The minimum payment for work performed by a full-time or part-time
employee on a public holiday will be as for four hours worked.
(e) The minimum payment for work performed by a casual employee on a public
holiday will be as for three hours worked.’
Option 2 – Develop a new casual clause
‘22.1 Sundays and public holidays—casual employees
All ordinary hours worked on a Sunday or public holidays will be paid for at the
ordinary hourly rate in clause 16 plus the casual loading under clause 11.2.’
Options 1 and 2 reiterate the existing position maintained in the Exposure Draft on causal
remuneration during Sundays and public holidays. There are no additional entitlements
payable to casual employees outside the scope of the existing arrangements effective since 1
January 2015.
420 SGA submission, 15 December 2016
421 AFEI submission, 18 January 2017
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014256andors-sub-afei-180117.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014288-sub-showmensguild-151216.pdf
[2018] FWCFB 1548
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In each option, there is direct reference to the payment of remuneration to casual employees,
resolving any ambiguity surrounding the effect of the sunset clause.
Option 1 eliminates a standalone provision for casual employees; however, interpretation of
the clause may be more complex because of the numerous sub-clauses.
Option 3 – Delete clause 22.1 entirely
No submissions have been received objecting to the deletion of the clause from the Exposure
Draft. Deleting clause 22.1 would remove an obsolete provision which has not operated since
1 January 2015. It may also be contended that its deletion is consistent with s. 134(g) of the
modern awards objective, that is, to ensure “a simple, easy to understand, stable and
sustainable modern award system.”
Notwithstanding the above, the deletion of the clause without any consequential amendments
would mean no alternate provision is made for casual employees within the award. Casual
entitlements may become ambiguous because it may be unclear what the applicable
remuneration is.
Option 4 – Delete clause 22.1(b) to reinstate entitlements as contained within 22.1(a)
‘22.1 Sundays and public holidays—casual employees
(a) All ordinary hours worked on Sundays or public holidays will be paid at the
minimum hourly rate for the classification plus the relevant casual loading,
except that all time worked on Good Friday, Royal Queensland Show Day
and Christmas Day will be paid for at the rate of 250% of the minimum
hourly rate. Public holiday penalties will be in substitution for any other
penalty or loading applicable under the terms of this award.
(b) Clause 22.1(a) will apply until 31 December 2014. This clause is to be
reviewed as part of the four yearly review of modern awards as provided for
in section 156 of the Act.’
The reinstatement of the entitlement will increase employment costs insofar as the proportion
of costs. However, the clause is specific to three public holidays, one of which is state-based
so those additional labour costs would be limited.
The effect of its reinstatement is unclear as there are no submissions to provide context on the
number of travelling shows operating on Good Friday, Royal Queensland Show Day and
Christmas Day and the number of causal employees that are captured by the clause, affecting
costs for employers.
This amendment would be a substantive change to the award and would require consideration
by a separately constituted Full Bench.
[2018] FWCFB 1548
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Background
Several decisions have been issued on transitional provisions relating to accident make-up
pay, district allowances, and redundancy pay that may assist in the assessment of the
transitional provisions contained in the Travelling Shows Award.
Award Modernisation
In 2008, the Award Modernisation Full Bench (2008 Full Bench) assessed transitional
provisions relating to accident pay, district allowances and redundancy pay that were inserted
into a number of modern awards and resolved the continuation of pre-modern awards and
NAPSAs should be for a limited period only.
The approaches endorsed by the 2008 Full Bench in respect of each class of pay entitlement
are outlined below.
Accident Pay
The 2008 Full Bench noted that accident pay entitlements are contained within several
awards and other industrial instruments and, notwithstanding commonalities between the
entitlements; there is diversity in the detail of provisions.422
The Full Bench noted:423
‘We anticipate that in the period prior to that date an opportunity will arise to consider the
formulation of a national standard to apply to all award covered employees. This task will be
made considerably easier if uniformity is developed in relation to workers compensation
schemes.
Where there are a variety of schemes operating, whether on a State or sectorial basis, in the
industry to be covered by a modern award we shall include a generally worded clause which
is designed to preserve the operation of each of those schemes until the end of the transition
period.’
District Allowances
On the issue of district allowances applying in Western Australia and the Northern Territory,
the 2008 Full Bench emphasised there needs to be a “consistent and fair national basis for
their fixation and adjustment,”424 related to the cost of living and relevant geographic areas.
The Full Bench decided:425
‘We do not intend to provide for any automatic adjustment at this stage…We shall provide that
the district, locality or remote area allowances, described generally as district allowances,
422 [2008] AIRCFB 1000 at [84]
423 [2008] AIRCFB 1000 at [87]–[88]
424 [2008] AIRCFB 1000 at [80]
425 [2008] AIRCFB 1000 at [81]
http://www.airc.gov.au/awardmod/databases/general/decisions/2008aircfb1000.htm
http://www.airc.gov.au/awardmod/databases/general/decisions/2008aircfb1000.htm
http://www.airc.gov.au/awardmod/databases/general/decisions/2008aircfb1000.htm
http://www.airc.gov.au/awardmod/databases/general/decisions/2008aircfb1000.htm
[2018] FWCFB 1548
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applying in Western Australia and the Northern Territory be preserved for a period of five
years in a transitional provision.’
Redundancy
In similar form, on the point of redundancy the 2008 Full Bench noted:426
‘There are a number of different redundancy pay schemes in State awards and legislation
which are reflected in NAPSAs…Provisions in this category include more generous
redundancy pay scales, redundancy pay for employees of small businesses, different
calculations for base pay and so on. It is appropriate that these interstate differentials be
taken into account in transitional provisions.’
4 yearly review of modern awards
ACTU application
The ACTU made applications to delete sunset provisions relating to accident pay and district
allowances. The Full Bench did not grant the ACTU application and in its decision (October
decision), confirmed that no substantive case had been advanced supporting the continuation
of transitional arrangements. The decision gave consideration to the decision by the 2008 Full
Bench.427 The Full Bench identified that:428
‘No substantive case has been advanced such that the allowances applying in Western
Australia and the Northern Territory should be a permanent feature of the awards
and, if so, the basis for their fixation and adjustment.’
The Full Bench noted that a national standard on accident pay, intended to apply to all award
covered employees, had not been achieved as envisioned previously.429 The Full Bench relied
on the modern awards objective and ss. 139 and 154 of the Fair Work Act in dismissing the
ACTU’s application.
Broken Hill Allowance
The October decision did not extend to the Broken Hill allowance. The modern awards that
were before the Full Bench in the proceedings included four awards that contained provision
for a Broken Hill allowance, which was set out within the district allowance clause. The Full
Bench subsequently decided that the Broken Hill allowance would be retained in the four
awards (February decision).
In its decision, the Full Bench said:430
426 [2008] AIRCFB 1000 at [61]
427 [2014] FWCFB 7767 at [5]
428 [2014] FWCFB 7767 at [6]
429 [2014] FWCFB 7767 at [6] (citing [2008] AIRCFB 1000, at [87])
430 [2015] FWCFB 644 at [62]–[63]
https://www.fwc.gov.au/documents/decisionssigned/html/2015fwcfb644.htm
http://www.airc.gov.au/awardmod/databases/general/decisions/2008aircfb1000.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2014fwcfb7767.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2014fwcfb7767.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2014fwcfb7767.htm
http://www.airc.gov.au/awardmod/databases/general/decisions/2008aircfb1000.htm
[2018] FWCFB 1548
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‘We note that the Broken Hill allowance is in different terms to the transitional
provisions relating to district allowances in Western Australia and the Northern
Territory. The entitlement to the allowance is specified in the four awards and is
expressed as a percentage figure of the standard rate under the award. It does not
require reference to any other instruments. The calculation of the allowance is
therefore straightforward and the allowance is not a term or condition of employment
determined by reference to State or Territory boundaries.
We are satisfied that the maintenance of the Broken Hill allowance in the awards is
appropriate having regard to the modern awards objective (ss.134 and 138) and other
relevant considerations. The allowance will therefore be retained in the awards.’
(emphasis added)
ACCI submitted that there is an inconsistency between the October decision and the
February decision. In its decision of 7 May 2015, the Full Bench reiterated that:431
‘It has [not] been shown that there is “any obvious error, defect or irregularity” in
relation to the February 2015 decision concerning the Broken Hill allowance which
requires correction.’
Take Home Pay
Against the background of the ACTU application to delete the transitional accident pay and
district allowance provisions in modern awards, an application was also made to the Full
Bench about interim take-home pay orders as a means to mitigate reductions in pay by virtue
of the sunset provisions.432
In response, ACCI and Ai Group made several submissions contending that interim take
home pay orders would address a potential or theoretical reduction in take home pay as
opposed to an actual loss suffered by employees. It would secure a transitional benefit for
employees effectively displacing the influence of a sunset clause.433 The employer groups
maintained that any provision for ‘class based take home pay orders’ on assessment of
modern awards is erroneous and an improper exercise of the Commission’s statutory
authority.434
The Full Bench declined to grant the ACTU claims for pre-emptive interim take home pay
orders. In its decision, the Full Bench referenced the abovementioned points and did not
consider that a sufficient evidentiary base for the orders sought was made providing the
necessary degree of clarity to enable employers to clearly understand their obligations and for
employees to be able to enforce the order.435 The Full Bench was not satisfied the witness
statements tendered assisted to bridge the evidentiary gap between the number and location
of employees who may be affected by the removal of the entitlement and the positive impact
431 [2015] FWCFB 2835 at [20]
432 [2014] FWCFB 9429 at [6]
433 [2015] FWCFB 2575 at [13]
434 [2015] FWCFB 2575 at [12] and [13]
435 [2014] FWCFB 9429 at [6]
https://www.fwc.gov.au/documents/decisionssigned/html/2014fwcfb9429.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2015fwcfb2575.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2015fwcfb2575.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2014fwcfb9429.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2015fwcfb2835.htm
[2018] FWCFB 1548
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take home pay orders may have.436 The Full Bench was also not satisfied with those matters
referred to in Transitional Regulation 13C(1), namely the Commission must not make a take-
home pay order where it considers the reduction is minor, insignificant or employees have
been compensated by other means for the reduction.437
CFMEU
CFMEU applied to delete the sunset provision in the unique accident pay provision that
appeared in the Black Coal Mining Industry Award 2010 (Black Coal Award).
Among a range of considerations, it was submitted by CFMEU that employers and
employees of the relevant industry easily understand the accident pay provision in the Black
Coal Award. It was also submitted that the provision is necessary in creating the minimum
safety net of terms and conditions for employees, and is not subject to inter-State
differentials.438
Consequently, the sunset clause in accident pay provision in the Black Coal Award was
deleted with effect from 31 December 2014. The Full Bench was satisfied a clear national
standard for the industry was achieved justifying the removal of the clause.439
Ai Group
Ai Group applied to delete the transitional provisions relating to accident pay, redundancy
and district allowances applying in Western Australia and the Northern Territory from all
applicable awards. Ai Group sought amendments to existing provisions predominantly
because “the deletion of obsolete provisions in awards has obvious merit and is consistent
with the modern awards objective in s.134, particularly the need to ensure a simple and easy
to understand award system (s.134 (1)(g)).”440
The Full Bench noted that the transitional redundancy provisions will, by their terms, cease to
operate on 31 December 2014 and that no party has opposed the removal of these provisions
from awards.
The Full Bench decided it is appropriate to remove model transitional accident pay and
district allowances provisions that ceased to operate on 31 December 2014 from modern
awards. The Full Bench reiterated the deletion from modern awards of provisions that are no
longer in operation is consistent with the modern awards objective (ss.134 and 138).441
436 [2015] FWCFB 2575 at [18]
437 [2015] FWCFB 2575 at [19]
438 [2015] FWCFB 644 at [69]
439 [2014] FWCFB 7767 at [7]
440 [2015] FWCFB 644 at [73]
441 [2015] FWCFB 644 at [76]
https://www.fwc.gov.au/documents/decisionssigned/html/2015fwcfb644.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2015fwcfb644.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2014fwcfb7767.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2015fwcfb644.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2015fwcfb2575.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2015fwcfb2575.htm
[2018] FWCFB 1548
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Key Principles
A decision was issued on 18 August 2017 on a multitude of applications to vary transitional
provisions relating to accident make-up pay across 37 modern awards.
The Full Bench grouped the awards by category, namely:442
awards where there has been a clear national standard of accident make-up pay in
the pre-reform instruments which formed the basis for the making of the awards.
awards where a significant proportion of the employees had an entitlement to
accident make-up pay under the terms of pre-reform instruments.
awards where only a limited proportion of the employees covered had an entitlement
to accident make-up pay, such as where the accident pay provision in pre-reform
instruments only applied in one State or to one part of the industry or industries now
covered by the modern award.
awards where there is no award history of accident make-up pay entitlements.
In similar form to the principles endorsed by the 2008 Full Bench, the Full Bench confirmed
the below mentioned points should be adopted in the consideration and determination of the
applications:443
The awards achieved the modern awards objective at the time they were made. At
that time most of the awards included a transitional accident pay clause.
The transitional accident pay provisions in the awards ceased to operate on 31
December 2014.
In seeking to vary the awards in the context of the 4 yearly review to include
accident pay provisions, the applicant unions must advance merit arguments in
support of the proposed variations. The extent of the merit argument required will
depend on the circumstances. Where a significant change is proposed it must be
supported by submissions addressing the relevant legislative provisions and be
accompanied by probative evidence.
The Commission will have regard to the historical context applicable to each
modern award.
The modern awards objective applies and the Commission may only include terms
in an award to the extent necessary to achieve the modern awards objective (s.138).
The characteristics and circumstances of the industries and parties covered by
modern awards vary and the application of the modern awards objective may result
in different outcomes between different awards.
In view of the above, the Full Bench decided that to achieve the modern awards objective the
awards in the first two categories be varied to include provision for accident make-up pay.
442 [2015] FWCFB 3523 at [168]–[171]
443 [2015] FWCFB 3523 at [146]
https://www.fwc.gov.au/documents/decisionssigned/html/2015fwcfb3523.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2015fwcfb3523.htm
