Four yearly review of modern awards - [2018] FWCFB 5986

1

Fair Work Act 2009 
s.156 - 4 yearly review of modern awards

4 yearly review of modern awards – Award stage – Group 2
(AM2014/198 and others)

JUSTICE ROSS, PRESIDENT
VICE PRESIDENT HATCHER
SENIOR DEPUTY PRESIDENT HAMBERGER
DEPUTY PRESIDENT BULL MELBOURNE, 26 SEPTEMBER 2018

4 yearly review of modern awards – award stage – exposure drafts – technical and drafting 
issues – Group 2 awards – outstanding issues.

CONTENTS

[2018] FWCFB 5986

DECISION

Paragraph
1. Introduction [1]

2. Review of Group 2 awards [4]
2.1 Alpine Resorts Award 2010 [10]
2.2 Animal Care and Veterinary Services Award 2010 [21]
2.3 Aquaculture Industry Award 2010 [28]
2.4 Corrections and Detention (Private Sector) Award 2010 [30]
2.5 Fire Fighting Industry Award 2010 [32]
2.6 Graphic Arts, Printing and Publishing Award 2010 [76]
2.7 Health Professionals and Support Services Award 2010 [105]
2.8 Horse and Greyhound Training Award 2010 [138]
2.9 Medical Practitioners Award 2010 [157]
2.10 Nurses Award 2010 [160]
2.11 Passenger Vehicle Transportation Award 2010 [178]
2.12 Racing Industry Ground Maintenance Award 2010 [180]
2.13 Road Transport (Long Distance Operations) Award 2010 [192]
2.14 Road Transport and Distribution Award 2010 [220]
2.15 Seafood Processing Award 2010 [250]
2.16 Storage Services and Wholesale Award 2010 [258]
2.17 Transport (Cash in Transit) Award 2010 [262]
2.18 Waste Management Award 2010 [268]

3. Next steps [288]


E AUSTRALIA FairWork Commission




 



[2018] FWCFB 5986

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ABBREVIATIONS

ABI & NSWBC Australian Business Industrial and New South Wales 
Business Chamber 

ACE Aged Care Employers
Act Fair Work Act 2009 (Cth)
ADA Australian Dental Association 
Ai Group Australian Industry Group
AMWU Automotive, Food, Metals, Engineering, Printing and 

Kindred Industries Union known as the Australian 
Manufacturing Workers’ Union 

ANMF Australian Nursing & Midwifery Federation
ARTIO Australian Road Transport Industrial Organisation
ASAA Australian Ski Areas Association 
ASMOF Australian Salaried Medical Officers’ Federation
AVA Australian Veterinary Association Limited 
AWU The Australian Workers’ Union
Business SA South Australian Employers’ Chamber of Commerce and 

Industry Inc trading as Business SA
Commission Fair Work Commission 
December 2014 decision Full Bench decision re exposure drafts in Group 1A and 

1B – General drafting – alleged inconsistencies with NES 
– 23 December 2014 [2014] FWCFB 9412

Fairfax Media Fairfax Media Limited 
June 2017 statement Statement re exposure drafts in Group 2 – parties directed 

to identify errors and outstanding technical and drafting 
issues – 9 June 2017 [2017] FWC 3205

July 2015 decision Full Bench decision re exposure drafts in Group 1A and 
1B – drafting and technical issues – ordinary hourly rate 
of pay – 13 July 2015 [2015] FWCFB 4658

PHIA Private Hospital Industry Employer Associations 
October 2016 decision Full Bench decision re exposure drafts in Group 2 awards 

– technical and drafting issues – award stage [2016] 
FWCFB 7254

NES National Employment Standards
NRTA National Road Transport Association 
Review 4 yearly review of modern awards under s.156 of the Fair 

Work Act 2009
SDA Shop, Distributive and Allied Employees Association 
September 2015 decision Full Bench decision re exposure drafts in Group 1A and 

1B – drafting and technical issues – Absorption clause –
casual loading – 30 September 2015 [2015] FWCFB 6656

the Alpine Award Alpine Resorts Award 2010
the Animal Care Award Animal Care and Veterinary Services Award 2010
the Aquaculture Award Aquaculture Industry Award 2010
the Corrections Award Corrections and Detention (Private Sector) Award 2010
the Fire Fighting Award Fire Fighting Industry Award 2010
the Graphic Arts Award Graphic Arts, Printing and Publishing Award 2010
the Health Professionals Award Health Professionals and Support Services Award 2010






https://www.fwc.gov.au/documents/decisionssigned/html/2015FWCFB6656.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2016fwcfb7254.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2016fwcfb7254.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2015FWCFB4658.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2017fwc3205.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2014FWCFB9412.htm


[2018] FWCFB 5986

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the Horse and Greyhound Award Horse and Greyhound Training Award 2010
the Medical Practitioners Award Medical Practitioners Award 2010
the Nurses Award Nurses Award 2010
the Passenger Vehicle Award Passenger Vehicle Transportation Award 2010
the Pharmacy Award Pharmacy Industry Award 2010
the Racing Industry Award Racing Industry Ground Maintenance Award 2010
the Long Distance Award Road Transport (Long Distance Operations) Award 2010
the Road Transport Award Road Transport and Distribution Award 2010
the Seafood Award Seafood Processing Award 2010
the Storage Services Award Storage Services and Wholesale Award 2010
the Cash in Transit Award Transport (Cash in Transit) Award 2010
the Waste Management Award Waste Management Award 2010
UFU United Firefighters Union of Australia 








[2018] FWCFB 5986

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1. Introduction

[1] Section 156 of the Fair Work Act 2009 (the Act) requires the Fair Work Commission 
(the Commission) to review all modern awards every four years (the Review). In the Award 
stage of the Review the 122 modern awards have been divided into 4 groups. This decision 
deals with a number of outstanding technical and drafting issues arising out of Group 2 of the 
Award stage. The 19 awards allocated to Group 2 are listed at Attachment A to this decision.

[2] This decision is the second decision dealing with the technical and drafting issues in 
the awards in Group 2 and should be read in conjunction with the decision issued on 
10 October 20161 (the October 2016 decision).

[3] In addition to the October 2016 decision, this decision should be read in conjunction 
with earlier decisions and statements concerning the Review, in particular the decisions of 23 
December 20142 (the December 2014 decision), 13 July 20153 (the July 2015 decision) and 
30 September 20154 (the September 2015 decision), in which the Commission dealt with a 
number of general drafting and technical issues common to multiple exposure drafts.

2. Review of Group 2 awards

[4] An initial conference was held in relation to Group 2 awards on 23 October 
2014. Parties filed submissions about the variations they sought to the Group 2 awards and a 
further conference was held on 2 December 2014. Exposure drafts of the Group 2 awards 
were published in December 2014. Due to issues arising in relation to Group 1 awards, the 
programming for Group 2 awards was revised in order to finalise certain issues in Group 1 
prior to the Group 2 hearings. Submissions and submissions in reply were received in relation 
to the technical and drafting issues in Group 2 exposure drafts in July and August 
2015. Hearings were held in October 2015. Following those hearings, additional conferences 
were held before single members to work through remaining technical and drafting issues. 
The Group 2 exposure drafts were republished in accordance with the decisions on general 
drafting and technical issues common to multiple exposure drafts and changes resolved 
through the conference process were also incorporated. 

[5] As previously mentioned, a decision was issued in relation to Group 2 awards in 
October 2016. That decision dealt with a large number of technical and drafting issues 
relating to these awards. The exposure drafts were then republished to incorporate the changes 
in that decision, as well as other amendments arising out of common issues that had been 
determined. Interested parties were provided an opportunity to make submissions on the 
revised exposure drafts, and these submissions were received in November and December 
2016.

[6] On 9 June 2017, the Commission issued a Statement5 (the June 2017 Statement) 
identifying a number of outstanding technical and drafting issues in the Group 2 exposure 

                                               
1 [2016] FWCFB 7254
2 [2014] FWCFB 9412
3 [2015] FWCFB 4658
4 [2015] FWCFB 6656
5 [2017] FWC 3205






https://www.fwc.gov.au/documents/decisionssigned/html/2017fwc3205.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/documents/decisionssigned/html/2016fwcfb7254.htm


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drafts. Interested parties were directed to file written submissions identifying additional errors 
and technical and drafting issues. A number of submissions were received in response to this 
June 2017 Statement. This decision deals with submissions made by parties in response to the 
October 2016 decision and also in response to the June 2017 Statement. 

[7] To assist with identifying the outstanding issues in relation to each exposure draft in 
Group 2, the Commission published a summary document relating to the status of the 
outstanding technical and drafting issues on 13 September 2018 (the summary of status 
document). This summary document identifies each outstanding issue by item number. 

Facilitative provisions

[8] Each exposure draft contains a table of facilitative provisions. In their submission of 
30 June 2017, Ai Group6 sought to remove references to annual leave in advance and cashing 
out of annual leave from the table of facilitative provisions in the following Group 2 exposure 
drafts:

 the Corrections and Detention (Private Sector) Award 2015 (the Corrections 
Award)

 the Health Professionals and Support Services Award 2015 (Health Professionals 
Award)

 the Horse and Greyhound Training Award 2010 (Horse and Greyhound Award)

 the Nurses Award 2010 (the Nurses Award)

 the Racing Industry Ground Maintenance Award 2010 (the Racing Industry 
Award)

 the Road Transport (Long Distance Operations) Award 2010 (the Long Distance 
Award)

 the Road Transport and Distribution Award 2010 (the Road Transport Award)

 the Seafood Processing Award 2010 (the Seafood Processing Award)

 the Storage Services and Wholesale Award 2010 (the Storage Services Award)

 the Transport (Cash in Transit) Award 2010 (the Cash in Transit Award) and 

 the Waste Management Award 2010 (the Waste Management Award).

[9] 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 Group 2 exposure drafts. 7

2.1 Alpine Resorts Award 2010

[10] A revised exposure draft8 for the Alpine Resorts Award 2010 (the Alpine Award) was 
republished following the June 2017 statement.9 The June 2017 Statement identified one 
outstanding technical and drafting issue to be resolved in relation to the Alpine Award. In 
response to the June 2017 Statement, (which called for parties to review any errors in the 
                                               
6 Ai Group submission, 30 June 2017 at paras [6], [12], [14], [16], [19], [23], [30], [35], [39], [47], [55]
7 [2018] FWCFB 1548 at para [756] to [759]
8 Further revised exposure draft, Alpine Resorts Award 2016, 13 June 2017 and 27 July 2017 
9 [2017] FWC 3205






https://www.fwc.gov.au/documents/decisionssigned/html/2017fwc3205.htm
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/exposure-draft-alpine-revised-130617.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/exposure-draft-alpine-revised-130617.pdf
https://www.fwc.gov.au/documents/decisionssigned/html/2018fwcfb1548.htm#P3372_274842
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2016209andors-sub-aig-300617.pdf


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republished exposure draft and any outstanding technical and drafting issues), one submission 
was received from the Australian Ski Areas Association (ASAA). 10 The ASAA submitted 
that there was one further outstanding item which deals with the equivalency of snowsport 
qualifications. 

[11] The two outstanding matters to be determined are listed as items 1 and 2 of the 
summary of status document and are dealt with below. 

Item 1—Applicable hourly rate

[12] Ai Group submit that the exposure draft uses both the terms “minimum hourly rate” 
and “applicable hourly rate” throughout.11 Ai Group submit that “minimum hourly rate” is 
intended to refer to the minimum rate prescribed by the award12 consistent with the approach
taken by the Commission in other exposure drafts. Clause 13.1 and 13.2 of the exposure draft 
set out ‘minimum hourly rates’ for Alpine resort workers and Snowsport instructors. 

[13] Ai Group submitted that the exposure draft also contains a definition of “applicable 
hourly rate” as follows:

‘applicable hourly rate means the relevant rate for the classification the employee is working 
under as set out in clause 13 – Minimum wages’

[14] Ai Group submit that the two terms are synonymous13 and that the use of 
interchangeable terminology is confusing; the exposure draft should adopt consistent 
terminology; and that the relevant phrase should be “minimum hourly rate”.14

[15] The term ‘applicable hourly rate’ was used in the Exposure Draft due to the loading of 
8.33% for seasonal employees, which formed part of a seasonal employee’s rate for the 
purposes of overtime and penalties. This loading was removed from the award in December 
201715 by the Full Bench constituted to deal with the substantive issues in the Alpine Award 
(AM2016/30). Due to the removal of the loading, the term ‘applicable hourly rate’ no longer 
needs to be used. We will therefore replace the term ‘applicable hourly rate’ with ‘minimum 
hourly rate’ as sought by Ai Group.

Item 2—Equivalency of Snowsports Qualifications 

[16] The ASAA submit that Table 5 of Schedule B (Equivalency of Snowsports 
Qualifications) to the exposure draft contains an error. It submits that the letters ‘IVSI’ should 
appear after the qualification ‘BASI (Ski & SB) Level 4 ISTD BASI (Ski Coach) Level 4 
Coach’.16 The abbreviation IVSI refers to the International Federation of Ski Instructors. 

                                               
10 ASAA submission 30 June 2017
11 Ai Group submission, 9 December 2016 at para [10]
12 Ai Group submission, 9 December 2016 at para [10]
13 Ai Group submission, 9 December 2016 at para [12]
14 Ai Group submission, 9 December 2016 at para [13]
15 PR599077
16 ASAA submission, 30 June 2017 at para 2.4






https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014198-sub-asaa-300617.pdf
https://www.fwc.gov.au/documents/awardsandorders/html/pr599077.htm
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014198andors-sub-aig-141216.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014198andors-sub-aig-141216.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014198andors-sub-aig-141216.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014198andors-sub-aig-141216.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014198-sub-asaa-300617.pdf


[2018] FWCFB 5986

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[17] Schedule B of the exposure draft contains a number of tables which outline 
Equivalency of Snowsports Qualifications. The ASAA sought variations to Schedule B of the 
exposure draft in submissions filed 15 July 2015.17 The ASAA submit that the variations were
pressed due to the recent name change of certification levels by the Australian Professional 
Snowsports Instructors. 

[18] In his Report to the Full Bench,18 Deputy President Bull noted that it was agreed 
between the parties that the draft variation for Schedule B, filed by ASAA on 15 July 2015, 
should be reflected in the exposure draft. The exposure draft published 19 April 201619

included the variations as proposed by ASAA, set out as agreed changes in red text.

[19] The draft provided by ASAA on 15 July 2015 does include the letters “IVSI” after the 
qualification ‘BASI (Ski & SB) Level 4 ISTD BASI (Ski Coach) Level 4 Coach’. The 
exposure draft published 19 April 2016 does not include those letters. The letters ‘IVSI’ were 
excluded by administrative error. These letters are an acronym of International Federation of 
Snowsport Instructors (when written in German).20 The exposure draft will be updated to 
reflect this change.

[20] There are no outstanding technical and drafting matters for this Full Bench to 
determine in relation to the Alpine Award. As mentioned previously, a number of substantive 
issues in this award have been dealt with by a separately constituted Full Bench in 
AM2016/30.21

2.2 Animal Care and Veterinary Services Award 2010

[21] A revised exposure draft22 for the Animal Care and Veterinary Services Award 2010
(the Animal Care Award) was published following the June 2017 statement. The June 2017 
Statement identified one outstanding technical and drafting issue to be resolved in relation to 
the Animal Care Award. The outstanding item is outlined at item 1 of the summary of status 
document and is dealt with below.

Item 1—Veterinary surgeons 

[22] This issue relates to ‘on call duty’ for veterinary surgeons. The issue was dealt with in 
the October 2016 decision23 but following this decision the AVA wrote to the Commission in 
relation to the issue and it was therefore included as an outstanding item in the June 2017 
Statement. 

[23] In the October 2016 decision, we decided to insert a note in clause 11.2(a)(i) of the 

exposure draft which deals with ‘on call duty’ for veterinary surgeons. Clause 11.2(a)(i) of the 

exposure draft currently reads:

                                               
17 ASAA submission, 15 July 2015
18 Bull DP, Report to the Full Bench, 7 December 2015, p9
19 Exposure Draft, Alpine Resorts Award, 16 April 2017
20 https://www.ivsi.info/en/ (accessed 4 January 2018)
21 See [2018] FWCFB 4984
22 Exposure draft, Animal Care and Veterinary Services Award 2015, 13 June 2017
23 [2016] FWCFB 7254 at [23]-[28]






https://www.fwc.gov.au/documents/decisionssigned/html/2016fwcfb7254.htm#P273_16374
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/exposure-draft-animal-and-veterinary-revised-130617.pdf
https://www.fwc.gov.au/documents/decisionssigned/html/2018fwc4984.htm
https://www.ivsi.info/en/
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/exposure-draft-alpine-revised-190416.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014198-report-071215.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014198-sub-asaa-substantive-150715.pdf


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11.2 Wage related allowances—veterinary surgeons 

(a) On call duty 

An associate required to be on call will receive a minimum amount of $39.63 
for each period of on call duty. A new period of such duty will be deemed to 
commence each 24 hours if continuous on call duty is required. 

(i) An associate who performs active on call duty will be paid at no less 
than the relevant hourly rate for the duration of active duty. 

Note: An associate is not in receipt of a day off for the purposes of 
Clause 8.3(c) if they perform scheduled active on call duty on that day.

[24] In the October 2016 decision we dealt with this issue as follows:

‘[23] . . . In the conferences before Commissioner Roe interested parties generally agreed that 
a note is required in clause 11.2(a)(i)—On call duty to clarify the relationship to clause 8.3(c), 
which provides for a ‘minimum of three full days off per fortnight’ for veterinary surgeons. 
Parties generally support the note reading: “Note: An associate is not in receipt of a day off for 
the purposes of Clause 8.3(c) if they perform scheduled active on call duty on that day”. The 
Ai Group and the AFEI [Australian Federation of Employers and Industry] wish to ensure that 
there is no implication that on-call time is to be considered ‘ordinary hours of work’. The 
AVA [Australian Veterinary Association] seeks to replace “perform scheduled active on call 
duty on that day” with ‘if they are required to be on call on that day’.

[24] The current Award and the exposure draft provide that “on call duty is not counted 
towards ordinary hours of duty or extra hours of duty”. 

…

[26] The AVA in its submission argues that the three full days off per fortnight should not 
include any period of on call. The AVA submits that the majority of employer veterinarians 
interpret the current provision in this manner, and that because on call duty is very common in 
the industry, veterinarians will be effectively denied a three day break each fortnight if on call 
duty can be required on these three days off.  

[27] We accept the AVA submission that veterinarians cannot enjoy three full days off if they 
have to be ready and available to work on those days. However, we consider that the current 
Award does not prevent veterinarians from being on call on their days off and a veterinarian is 
still on a day off even if they are on call for the purposes of the Award. If a veterinarian is 
actually required to work on a day off then they are on active on call duty and that day is no 
longer regarded as a day off for the purposes of the right to three full days off in a fortnight. 

[28] We do not consider that the AVA has made a sufficient case to vary the Award to exclude 
on call duty on at least three days per fortnight. We will not vary the exposure draft.’24

(footnotes omitted)

                                               
24 [2016] FWCFB 7254, [23] – [28]






https://www.fwc.gov.au/documents/decisionssigned/html/2016fwcfb7254.htm#P273_16374


[2018] FWCFB 5986

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[25] On 6 December 201625, correspondence was received from the AVA in relation to our 
decision. In that correspondence, AVA submit they do not support the terms of the note and
they request that the note be removed. 

[26] We determined this matter in the October 2016 decision. The submission received 
from the AVA has not persuaded us to revisit the issue. 

[27] There are no outstanding technical and drafting matters for this Full Bench to 
determine in relation to the Animal Care Award. 

2.3 Aquaculture Award 2010

[28] A revised exposure draft for the Aquaculture Award 2010 (the Aquaculture Award) 
was published on 13 June 201726, following the June 2017 Statement. The June 2017 
Statement noted that there were no outstanding issues in relation to the Aquaculture Award 
and no further submissions were received. 

[29] There are no outstanding technical and drafting matters for this Full Bench to 
determine in relation to the Aquaculture Award. 

2.4 Corrections and Detention (Private Sector) Award 2010

[30] An exposure draft27 for the Corrections Award was republished on 13 June 2017, 
following the June 2017 statement. The June 2017 statement noted there were no outstanding 
matters in relation to this award. One submission was received from Ai Group28 relating to the 
list of facilitative provisions contained in the exposure draft for the Corrections Award. We 
have dealt with this issue above at paragraphs [8] and [9].

[31] There are no further outstanding items in relation to this award.

2.5 Fire Fighting Industry Award 2010

[32] A revised exposure draft29 for the Fire Fighting Industry Award 2010 (the Fire 
Fighting Award) was published following the June 2017 Statement. The June 2017 Statement 
identified five outstanding matters in relation to this award. No further submissions relating to 
the outstanding items were received in response to the June 2017 Statement.

Item 1—Ordinary hours of work and rostering

[33] At clause 9 of the exposure draft, the Commission posed the following question to 
interested parties:

                                               
25 AVA, submission, 6 December 2016
26 Exposure Draft, Aquaculture Industry Award, 13 June 2017
27 Exposure draft, Corrections and Detention (Private Sector) Award 2015, 13 June 2017
28Ai Group submission, 30 June 2017 at para 6. 
29 Exposure draft, Fire Fighting Industry Award 2015, 13 June 2017






https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/exposure-draft-fire-fighting-revised-130617.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2016209andors-sub-aig-300617.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/exposure-draft-corrections-further-revised-130617.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/exposure-draft-aquaculture-revised-130617.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014199-sub-ava-061216.pdf


[2018] FWCFB 5986

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‘Parties are asked to clarify whether public sector employees can work on other than a shift 
roster (i.e. day work referred to in clauses 9.4(e) and 9.5(d)).’

[34] Due to renumbering affecting the clause, the clause references in the Commission 
query above should be to clauses 9.5(e) and 9.6(d) of the revised exposure draft.

[35] The AWU made a submission regarding this issue in 2015. They submit that public 
sector employees can work on an arrangement other than the 10/14 roster and referred to the 
following extract of the 4 December 2009 Award Modernisation Full Bench decision:

‘We acknowledge that the 10/14 roster is the standard method for arranging the work of most 
firefighters in the various public sector fire services in Australia. It is workable in a large fire 
service which operates fire stations on a 24 hours a day, seven days a week basis. However, 
we are not persuaded that a public sector employer covered by a modern award for the fire 
fighting industry should be prevented from employing firefighters except on a 10/14 roster. … 
In the public sector [the award] permits employment on bases other than the 10/14 roster 
provided that the employee receives no less than they would have received on the 10/14 
roster.’ 30

[36] The AWU submit that if a public sector employee is working any arrangement, 
including day work as referred to in clauses 9.5(e) and 9.6, they must be paid as if they were 
working a 10/14 roster, with no loss of shift penalty.31

[37] The Country Fire Authority (CFA) also made a submission regarding this issue in 
2015, referred to the above passage of the 4 December 2009 Award Modernisation Full Bench 
decision32 and submit that it is clear that it is possible for employees to work on other than a 
shift roster.33

[38] Similarly, the Metropolitan Fires and Emergency Services Board (MFB) rely on the 
abovementioned passage of the 4 December 2009 Award Modernisation Full Bench 
decision34 and submit that the 10/14 roster system is the standard method of arranging the 
work of most public sector firefighters. However, in the MFBs view this does not and should 
not prevent employing firefighters on different arrangements.35

[39] The United Firefighters’ Union of Australia (UFU)  submit that as a result of the Full 
Bench decision in [2016] FWCFB 8025,36 aside from work on ‘other than a shift roster’ as 
provided for in the award as a result of that decision, employees cannot work on other than 
the 10/14 roster.37

                                               
30 [2009] AIRCFB 945 at [49]
31 AWU submission, 5 February 2015, at para 3
32 [2009] AIRCFB 945
33 CFA submission, 20 November 2015, para 17.3
34 [2009] AIRCFB 945
35 MFB submission, 20 November 2015 at para 23
36 [2016] FWCFB 8025
37 UFU submission, 30 November 2016 at para 1






https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014202-sub-ufu-011216.pdf
https://www.fwc.gov.au/documents/decisionssigned/html/2016fwcfb8025.htm
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014202-sub-mfb-201115.pdf
https://www.fwc.gov.au/documents/decisionssigned/html/2009aircfb945.htm
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014202-sub-cfa-201115.pdf
https://www.fwc.gov.au/documents/decisionssigned/html/2009aircfb945.htm
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014202-sub-awu-050215.pdf
https://www.fwc.gov.au/documents/decisionssigned/html/2009aircfb945.htm


[2018] FWCFB 5986

11

[40] A decision dealing with substantive issues in relation to this award, 38 explained that 
the 10/14 roster system (employees engaged on a 38 hour week, over a period of eight weeks, 
being two 10 hour day shifts followed by two fourteen hour night shifts) existed in 
predecessor awards to the Fire Fighting Award and has been the standard method for 
arranging the work of most firefighters in the various public sector fire services in Australia.39

[41] Despite this observation, the Full Bench determined that part time provisions should 
be inserted into the award to meet the modern awards objective, and a determination giving 
effect to that decision was issued on 15 November 2016.

[42] The determination inserts a new clause at clause 22.4 of the current modern award 
which states as follows:

‘22.4 Day work

Employees may be employed on day work in which they may be required to work up to 
10 ordinary hours per day, between the hours of 7.00 am and 6.00 pm, Monday to Sunday. If 
the employer and a majority of affected employees agree, up to 12 ordinary hours per day may 
be worked.’

[43] It appears to be unclear what rate of pay public sector day workers are paid under the 
new provisions. On one view they are paid the same as the 10/14 roster, however clause 
10.3(f) of the exposure draft sets out the following:

(f) A part-time employee employed under the provisions of this clause must be paid for 
ordinary hours worked at the rate of 1/38th of the appropriate weekly rate prescribed in clause 
15 – Minimum wages—public sector.

[44] This issue will be subject of a conference before Justice Ross at 10.00am on 
Wednesday 7 November 2018.

Item 2—Definition of overtime – public sector

[45] At clause 20.1 of the exposure draft the Commission posed the following question to 
interested parties:

‘Parties are asked to comment on whether the reference to the ‘minimum weekly rate’ in clause 
20.1(c) should be to the ‘total weekly wage in clause 13.

(original emphasis)

[46] In the exposure draft published on 15 December 2014, clause 20.1(c) appeared in the 
following terms:

‘To remove doubt, no additional payment is made to an employee in respect of the average of 
two hours a week of overtime incorporated in the minimum weekly rate payable to the 
employee.’

[47] This provision appears at clause 20.1(e) of the June 2017 exposure draft.

                                               
38 [2016] FWCFB 8025
39 [2016] FWCFB 8025, [82]






https://www.fwc.gov.au/documents/decisionssigned/html/2016fwcfb8025.htm
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[48] In response to the Commission’s question, the UFU (relying on earlier submissions 
filed in November 2015) submit that the reference should be to the total weekly wage in 
clause 13. The UFU submit that, “[t]he intention of the clause is to prevent any additional 
payment for overtime where payment has already been provided as part of the ‘total weekly 
wage’. The minimum weekly wage does not provide payment for overtime.”40

[49] The MFB41 and the CFA42 also submit that the reference in clause 20.1(e) should be to 
the ‘total weekly wage’.

[50] The AWU submit that the clause should read:

‘To remove doubt, no additional payment is made to an employee in respect of the average of 
two hours a week of overtime already incorporated into the amount payable to the employee 
under Clause 13 – Minimum wages – public sector.’43

[51] We agree that the reference in clause 20.1(e) of the exposure draft should be to the 
‘total weekly wage’ rather than the ‘minimum weekly rate’. The clause applies to 
shiftworkers on the 10/14 roster and refers to the two hours of overtime that the ‘total weekly 
wage’ provides compensation for. We will amend clause 20.1(e) as follows:

‘To remove doubt, no additional payment is made to an employee in respect of the average of 
two hours a week of overtime incorporated in the total weekly wage payable to the employee.’

Item 3—Definition of overtime – private sector

[52] At clause 20.2(b)(ii) of the exposure draft published on 15 December 2014 the 
Commission posed the following question:

‘Parties are asked to clarify when overtime for shiftworkers, other than those on 10/14 roster, 
is payable. Is it payable at the same rate as for shiftworkers on 10/14 roster?’

[53] This query now appears at clause 20.3(b)(ii) of the June 2017 exposure draft. Clause 
20.3(b)(ii) of the June 2017 exposure draft reads:

‘(ii) For a shiftworker not working on a 10/14 roster, overtime is any time required to be 
worked:’

[54] Clause 20.3(b)(i) of the June 2017 exposure draft provides the definition of ‘overtime’ 
for shiftworkers working a 10/14 roster in the private sector and is as follows:

‘20.3 Definition of overtime—private sector
…

(b) Shiftworkers

                                               
40 UFU submission, 30 November 2016at para 2.
41 Metropolitan Fire and Emergency Services Board, Submission 20 November 2015 para 26
42 Country Fire Authority, Submission 20 November 2015 para 20
43 AWU submission, 5 February 2015 at para 5






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(i) For a shiftworker working a 10/14 roster, overtime is any time 
required to be worked:

 in excess of a rostered shift; or

 in excess of four shifts in any one week.’

[55] In response to the Commission’s question, the UFU (relying on earlier submissions 
filed in November 2015) submit that “…overtime should be payable to shift workers not 
working a 10/14 roster on the same basis as those working a 10/14 roster. Specifically, 
overtime should be paid where a fire fighter works outside their rostered shifts or works more 
than 4 shifts in any week.”44

[56] The AWU submit that employees in the private sector who are not on a 10/14 roster 
system are entitled to overtime where they work outside the ordinary hours in clause 10.2 and 
10.4(b).45 The AWU proposed the following amendment to the wording of the clause as 
follows:

‘For a shiftworker not working on a 10/14 roster, overtime is any time required to be worked:

 In excess of the maximum hours on any shift in Clause 10.4(b)—Shift rosters, or

 In excess of 38 hours per week, which may be averaged in accordance with Clause 10.2—
Ordinary hours of work’46

[57] The MFB submit that it is appropriate for overtime provisions to payable on the same 
basis as for workers on a 10/14 roster.47

[58] The MFB and AWU agree that shiftworkers not working on a 10/14 roster should be 
entitled to the same overtime provisions payable to shiftworkers working a 10/14 roster.

[59] The AWUs proposed solution provides overtime on a different basis.

[60] It appears to us that it would be inappropriate for shiftworkers not working a 10/14 
roster to receive overtime for time worked in excess of four shifts per week as that provision 
is specific to the work arrangements under a 10/14 roster system. The proposal by the AWU 
however appears to have some merit in that it provides overtime for shiftworkers working in 
excess of either the maximum hours per shift allowed under clause 10.4(b) or for working in 
excess of an average of 38 hours over a cycle of up to eight weeks (as provided in clause 
10.2). 

[61] It is our provisional view that it is appropriate for the exposure draft to clearly set out 
the overtime provisions for shiftworkers not working on a 10/14 roster. It is our provisional
view that the approach of the AWU is preferable as it provides a fair basis for the provision of 
overtime for shiftworkers not working the 10/14 roster. Parties are asked to file a written 
submission on our provisional view no later than 4.00 pm on Wednesday 10 October 2018. 

                                               
44 UFU submission, 30 November 2016 at para 3.
45 AWU submission, 5 February 2015 at para 6
46 AWU submission, 5 February 2015 at para 6
47 MFB submission, 20 November 2015 at para 27






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The issue will then be subject of the conference to be convened by Justice Ross at 10.00am 
on Wednesday 7 November 2018.  

Item 4—roster employees and other public sector employees

[62] At the end of clause 22 of the exposure draft published 15 December 2014, the 
Commission posed the following question to interested parties:

‘Parties are asked to consider whether a provision should be inserted in clause 22 to clarify the 
rate of pay for an employee on annual leave.’

[63] The question was raised in relation to the following wording extracted from clause 
28.3 of the current award:

‘(a) Notwithstanding clause 28.2, a full-time employee working the 10/14 roster and other 
full-time employees of public sector employers will be entitled to 65.06 days annual leave per 
annum inclusive of the NES. Part-time employees working the 10/14 roster will be entitled to 
annual leave on a pro rata basis of 65.06 days annual leave per annum inclusive of the NES. 
Such leave is to be taken on the following basis:

(i) for full-time employees subject to the 10/14 roster, such leave will be taken in 
periods of 28 calendar days within alternating periods of 20 weeks and 24 weeks; and

(ii) for other employees not subject to the 10/14 roster and for part-time 
employees, such leave will be taken within periods as reasonably prescribed by the 
employer. These employees will be required to take any public holiday on the date 
reasonably prescribed.

(b) Where an employee leaves their employment they will be entitled to pro rata payment 
instead of the annual leave provided in this clause for such broken periods of service 
calculated on the basis of 21.67% of the ordinary wage payment received by the employee 
during such period.’

[64] In response to the Commission’s request, the UFU (relying on earlier submissions 
filed in November 2015) submit that while not necessary, such a clarification would be 
desirable.48 This submission is made on the assumption that the ‘clarification’ made is the 
note in clause 22.149 of the exposure draft that provides the following:

‘NOTE: Where an employee is receiving overaward payments such that the employee’s base 
rate of pay is higher than the rate specified under this award, the employee is entitled to 
receive the higher rate while on a period of paid annual leave (see ss.16 and 90 of the Act).’

[65] The AWU submit that a provision clarifying the rate of pay for an employee on annual 
leave would be desirable.50

[66] The MFB submit that the current wording of clause 22 of the exposure draft is 
adequate.

                                               
48 UFU submission, 30 November 2016, para 4
49 Ibid
50 AWU submission, 5 February 2016, para 12






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[67] The CFA submit that it does not consider that any useful purpose would be served by 
inserting a provision concerning the rate of pay for an employee on annual leave.51

[68] The issue that the Commission sought to clarify with its question to parties was 
whether the rate of pay for an employee whilst on annual leave would be at the total weekly 
rate (where applicable), the ordinary hourly rate (where applicable), or on some other basis. 

[69] It appears that clause 28.3(b) of the current award envisages that, at least for an 
employee who leaves their employment, the pro rata amount would be based on the 
employee’s ‘ordinary wage payment’. The current award is otherwise silent about the 
appropriate rate of pay. The note inserted into the exposure draft at clause 22.1 clarifies the 
situation where an employee receives overaward payments but sheds no light on the 
applicable award rate while on annual leave. In the absence of the award providing a higher 
rate, it is likely that the NES base rate of pay would apply.

[70] In the October 2016 decision, we stated the following:

‘Due to the different rates of pay used for various purposes in this award (i.e. minimum hourly 
rate, ordinary hourly rate and total hourly rate) we consider it would be of assistance to insert a 
provision to clarify the rate of pay for an employee while on annual leave. However, it is not 
clear which rate of pay should be paid to an employee while on annual leave. The options 
appear to be either the ‘ordinary hourly rate’ or the ‘total hourly rate’. The answer to that 
question may depend on whether the employee is a shiftworker or not. We propose to provide 
an opportunity for the parties to comment on which rate(s) of pay is to be specified through 
written submissions.’52

[71] No submissions regarding the rate of pay to be specified have been received since the 
October 2016 decision. Parties are provided an opportunity to file a written submission in 
relation to this issue. Submissions should be filed no later than 4.00 pm on Wednesday 10
October 2018. The issue will then be subject of the conference to be convened by Justice 
Ross at 10.00am on Wednesday 7 November 2018.  

Item 5—Definitions – public sector employee and private sector employee

[72] In the definitions schedule of the exposure draft the Commission asked parties to 
comment on whether they believed definitions of ‘public sector employee’ and ‘private sector 
employee’ were necessary.

[73] In response to the Commission’s query, the UFU submitted that the terms are well 
understood within the industry and do not require definition.53

[74] The CFA and MFB submit that they do not consider that any useful purpose would be 
served by including a definition for either term.54

                                               
51 CFA submission, 20 November 2015, para 23
52 [2016] FWCFB 7254, [85]
53 UFU submission, 30 November 2016 at para 5
54 CFA submission, 20 November 2015 at para 24 and MFB submission, 20 November 2015 at para 30






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https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014202-sub-ufu-011216.pdf
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[75] We agree with the UFU and accept that the terms are well understood within the 
firefighting industry and have decided that, in the absence of any support for the proposal, 
definitions of ‘public sector employee’ and ‘private sector employee’ will not be included in 
the exposure draft.

2.6 Graphic Arts, Printing and Publishing Award 2010

[76] An exposure draft55 for the Graphic Arts, Printing and Publishing Award 2010 (the 
Graphic Arts Award) was published following the June 2017 statement. The June 2017 
Statement noted four outstanding matters in relation to the award. Ai Group,56 ABI & 
NSWBC57 and Fairfax Media58 filed submissions in response. Ai Group,59and AMWU60 also 
filed submissions in relation to outstanding technical and drafting issues following the 
October 2016 decision. The parties’ submissions were arranged by item number in the
summary of status document that was published on 12 September 2018.61 Item 6 was referred 
to the Plain Language Full Bench (AM2016/5).62

[77] Items A1, 1, 2, 3, 4, 5 and 5A remain outstanding. 

Item A1—Casual loading – list of matters 

[78] Ai Group submitted that, consistent with the Commission’s approach concerning other 
exposure drafts, the list of matters in lieu of which casual loading is paid should be deleted. 
Ai Group submitted that this list, appearing at clause 6.4(b)(iii) is unnecessary and does not 
‘accurately describe the various factors that are intended to be compensated by payment of the 
casual loading.’63 Consistent with the approach outlined in the December 2014 decision64, the 
exposure draft published 13 June 201765 removed this list at clause 6.4(b)(iii). The matter is 
resolved. 

Items 1 and 2—Payment of wages and Overtime, penalties and public holidays

[79] Ai Group submits that, consistent with earlier decisions of the Commission, the term 
‘time and a half’ appearing in clause 18.5 should be replaced with ‘150% of the ordinary 
hourly rate’. Ai Group submits this ‘will make clear that the relevant penalty is to be 
calculated by reference to the award-prescribed rates and does not include over-award 
amounts.’66

                                               
55 Exposure draft, Graphics Arts, Printing and Publishing Award 2016, 13 June 2017
56 Ai Group submission, 30 June 2017 at paras 7-9
57 ABI & NSBC submission, 10 July 2017 at para 6
58 Fairfax Media submission, 15 June 2017 at p.1
59 Ai Group submission, 14 December 2016 at paras 29-46
60 AMWU submission, 18 November 2016
61 Summary of status – Group 2 Awards – Technical and Drafting Issues at p.4-5
62 [2017] FWCFB 5536 at [581]
63 Ai Group submission, 14 December 2016 at para 34.
64 [2014] FWCFB 9412, [68] – [69]
65 Exposure Draft, Graphic Arts, Printing and Publishing Award, 13 June 2017
66 Ai Group submission, 14 December 2016 at para 36.






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https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014198andors-sub-aig-141216.pdf
https://www.fwc.gov.au/documents/decisionssigned/html/2017fwcfb5536.htm
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014198-andors-technical-drafting-summary-130918.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014203-sub-amwu-181116.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014198andors-sub-aig-141216.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201633-corr-fml-150617.pdf
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[80] Clause 18.5 of the exposure draft appears in the following terms:

‘If an employee is paid wages by cash and wages are not paid within ordinary working hours, 
all non-working time during which an employee is kept waiting for payment of wages will be 
paid at time and a half. The penalty in clause 18.5 will not apply where the delay is beyond 
the employer’s control.’ (original emphasis)

[81] Ai Group raises the same issue in relation to clauses 24.2(b), 24.3(a), 24.3(b), 24.4(a), 
31.3 and 31.467, submitting that the terms ‘time and a half’, ‘double time’, and ‘double time 
and a half’ should be replaced with the terms ‘150% of the ordinary hourly rate’, ‘200% of the 
ordinary hourly rate’, and ‘250% of the ordinary hourly rate’, respectively. 

[82] This issue was raised by the Ai Group in earlier submissions in 2015.68 The AMWU 
and Printing Industries Association of Australia (IPAA) sought to retain the current wording 
in the award.69 ABI & NSWBC were not opposed to changing the overtime amounts to 
percentages.70

[83] Deputy President Bull conducted a conference of interested parties on 18 November 
2015 and produced a Report to the Full Bench on 8 December 201571 which outlined the 
matters discussed at the conference and the outcome reached between the parties. In relation 
to this issue, the Report indicates that there is to be no change to percentages “as overtime 
appears to be compounding on shift work rates”.72

[84] The Report to the Full Bench indicates that this matter was agreed between the parties, 
however it appears that Ai Group, at least, no longer agrees with keeping the provisions as 
they appear in the current award. 

[85] In the July 2015 decision we stated the following in relation to the terms “double 
time” and “200%”:

‘(vii) Double time versus 200%

[95] The AMWU and TCFUA, supported by a number of other unions submitted that 
replacing terms such as ‘time and a half’ and ‘double time’ with ‘150% of the minimum 
hourly rate’ or ‘200% of the minimum hourly rate’ (or ‘200% of the ordinary hourly rate’ in 
awards where there is an all purpose payment) reduces an employee’s entitlements under the 
award. They argue that where an employee is receiving an overaward payment, it is the higher 
rate that should be multiplied to calculate the amount payable. 66 

[96] Modern awards provide a safety net of minimum entitlements. The modern award 
prescribes the minimum rate an employer must pay an employee in given circumstances. 
Overaward payments, while permissible, are not mandatory. Further, if an employer chooses
to 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 

                                               
67 Ibid at paras 37-45.
68 Ai Group submission, 28 January 2015 at para 88 and submission 4 March 2015 at para 63
69 PIAA submission, 22 January 2015, AMWU submission, 16 February 2015
70 ABI and NSWBC, Submission, 2 February 2015,  at para 21
71 Bull DP, Report to the Full Bench, 8 December 2015
72 Bull DP, Report to the Full Bench, 8 December 2015, pg 17, item 59






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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.’

[86] There is some complexity in this award as to how rates of pay are to be calculated in 
relation to the interaction with penalty rates. Clause 31.3 of the current award, which is 
reflected in clause 21.3(c) of the exposure draft, is as follows:

‘(c) The shift allowance is part of the employee’s weekly wage for the purpose of 
calculating the overtime rate payable in accordance with this award.’

[87] This means that overtime is compounded on the penalty rate. If we were to make the 
overtime rates a percentage of the ‘ordinary hourly rate’ this would remove the compounding 
of the penalty and lower the overtime rates for shiftworkers. We do not wish to introduce a 
new term or reference rate into the exposure draft as this risks increasing the already complex
nature of these provisions. It is not our intention to change entitlements as part of the technical 
and drafting stage of this process. We have decided that the references to the terms ‘time and 
a half’, ‘double time’, and ‘double time and a half’ in the exposure draft, which reflect the 
current award, will be maintained.

Item 3—Definition of ‘ordinary hourly rate’

[88] Ai Group submits that, as the exposure draft contains all-purpose allowances and uses 
the term ‘ordinary hourly rate’, a definition of ‘ordinary hourly rate’ should be included in the 
exposure draft. Ai Group submits that this would help ensure that the award is simple and 
easy to understand.73

[89] The phrase ‘ordinary hourly rate’ appears in the exposure draft in two different 
contexts. The first is as a reference rate in relation to penalties, for example clause 20.3 
provides that day workers who work ordinary hours on Saturday or Sunday will be paid at 
‘200% of the ordinary hourly rate”. The expression of these rates differs from the expression 
in the current award of equivalent provisions which sets the rate at ‘double time’. The second 
is in clause 20.3(e)(ii) and relates to a one off payment for work on a Saturday which is ‘equal 
to four times the ordinary hourly rate of pay calculated on the award classification level 
rate…’. The exposure draft currently contains a definition of the phrase ‘hourly rate which is 
as follows:

hourly rate means the weekly wage prescribed by this award for the work performed divided 
by the number of hours which constitute the employee’s ordinary working week. In the event 
of an employee being employed on shiftwork the penalty payable for work at such hours will 
be part of the weekly wage of that employee

[90] The definition from the July 2015 decision of ordinary hourly rate for awards that have 
all purpose allowances that apply to some employees is as follows:

ordinary hourly rate means the hourly rate for the employee’s classification specified in 
clause X, plus any allowances specified as being included in the employee’s ordinary hourly 
rate or payable for all purposes

                                               
73 Ai Group submission, 14 December 2016 at para 46.






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[91] There are a number of options to address this issue. There are a number of problems 
with retaining the exposure draft in its current form. Firstly, the exposure draft now contains a 
number of provisions expressed as a percentage of the ordinary hourly rate and it would be 
unclear how the definition for hourly rates interacts with this definition. Secondly, the ‘hourly 
rates’ definition does not account for the fact that the award now contains hourly rates of pay 
as it provides how to calculate the hourly amount from the weekly amount. This is 
unnecessarily complex as the award now contains minimum hourly rates that have been 
calculated based on the 38-hour week.

[92] One option may be to maintain the hourly rates definition, in some form, and include 
the standard ‘ordinary hourly rates’ definition. As the exposure draft currently refers to the 
‘hourly rate’ in a number of places this would mean that those rates would also have a 
definition. However the two definitions overlap and this would create an ambiguity in the 
document.

[93] A further option would be to include the standard definition of ‘ordinary hourly rate’ 
as set out in the July 2015 decision and remove the definition of ‘hourly rate’. Our 
preliminary view is that it would be unnecessary to modify that definition to include the part 
of the ‘hourly rate’ definition that deals with the shift penalty as the award has preserved that 
distinction by maintaining the language of ‘double time’ and ‘time and a half’. All instances 
of the phrase ‘hourly rate’ would be changed to ‘ordinary hourly rate’. Our provisional view 
is that this option would clarify the operation of this award and we propose to insert the 
following definition:

ordinary hourly rate means the hourly rate for the employee’s classification specified in 
clause 8.2, plus any allowances specified as being included in the employee’s ordinary hourly 
rate or payable for all purposes

[94] Parties have until 4.00 pm on Wednesday 10 October 2018 to provide further 
comment on the proposed definition and the proposed change of any reference from ‘hourly 
rate’ to ‘ordinary hourly rate.

Item 4—Level 2 — facilitation by majority or individual agreement

[95] ABI and the AMWU submit that a minor error exists in clause 5.5(c) of the exposure 
draft. Clause 5.5(c) deals with facilitative provisions and in particular, facilitation by majority 
or individual agreement. Clause 5.5(c) is in the following terms:

‘(c) Where no agreement has been reached by the employer with the majority of employees in 
accordance with clause 5.5(b), the employer may reach agreement with individual employees 
in the workplace or a section or sections of the workplace. Such agreement under this clause 
binds the individual employee provided the agreement reached is kept by the employer as a 
time and wages record and provided the agreement is only with an individual employee or a 
number of individual employees less than the majority in the workplace or a section or 
sections of the workplace.’

[96] It is submitted that the phrase reading ‘Such agreement under this clause…’ should 
instead read ‘Such an agreement under this clause…’.74

                                               
74 ABI submission, 10 July 2017 at para 7; AWMU submission, 18 November 2016






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[97] The Report to the Full Bench indicated that this change would be made to the 
exposure draft75 however it appears this change has been overlooked in the republished 
version of the exposure draft. The exposure draft will be updated accordingly. 

Items 5 and 5A—Annual leave and deleting ‘regional’ and ‘regional daily newspaper’

[98] These items arise in respect of a Determination which varied the Graphic Arts Award 
(PR593788). Fairfax Media and ABI submit that a number of clauses in the exposure draft 
have not been updated to reflect the changes made to the corresponding clauses in the 
award.76 Specifically, Fairfax submits that the word ‘regional’ should be deleted from the 
phrase ‘regional daily newspaper’ wherever it appears in the exposure draft. Fairfax also 
submits that clause 27.2 should be updated to remove the last sentence in the clause and to 
replace it with the following:

‘Where there is an agreement between an employer and an employee under this clause 27.2, 
this clause 27.2 applies instead of clause 27.4.’

[99] Consistent with the Determination we will incorporate those changes into the exposure 
draft. We will make the amendment to clause 27.2 sought by Fairfax, as well as removing the 
word regional from the following locations in the exposure draft: clauses 3.2(n), 5.6(a), 9.3,
9.4(a), 17.2(b)(i), 20.3(e)(iii) and 20.7.

Additional item—Schedule A—Classification Definitions—Level 6

[100] As a result of correspondence received by the Commission from the FWO in 
December 2017, our attention was drawn to a potential problem with the wording of the list of 
indicative tasks for Level 6 employees. Schedule B.6 of the current award (which represents 
Schedule A.6 of the exposure draft) includes the following in the list of indicative tasks:

‘undertaking immediate art and design to their level of training and accredited skill.’

[101] The word ‘immediate’ appears in pre-reform instruments as far back as 1995,77

however it is suggested that this is an error, and that it should read ‘intermediate art and 
design’ rather than ‘immediate art and design’. 

[102] This change is supported by the context. Schedule B.5 of the current award (Schedule 
A.5 of the exposure draft) provides that ‘undertaking basic art and design to their level of 
training and accredited skill’ is an indicative task of employees at Level 5. Schedule B.7 of 
the current award (Schedule A.7 of the exposure draft) provides that ‘undertaking complex art 
and design to their level of training and accredited skill’ is an indicative task of employees at 
Level 7.

[103] When compared to the words ‘basic’ and ‘complex’ appearing in the lists of indicative 
tasks for Levels 5 and 7 respectively, the term ‘immediate’ seems nonsensical, the word 

                                               
75 Report to the Full Bench, 8 December 2015 at p.4
76 Fairfax Media submission, 15 June 2017; Fairfax Media submission, 27 June 2017; ABI submission, 10 July 2017 at para 6
77 Graphics Arts – General – Award 2000 [AP782505CR]; Graphics Arts - General - Interim Award 1995 [M7985]






https://www.fwc.gov.au/documents/consolidated_awards/ap/ap782505/asframe.html
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2016203andors-sub-abi-100717.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2016203-sub-fml-270617.pdf
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‘intermediate’ appears consistent, as it would sit between ‘basic’ and ‘complex’ in terms of 
the level of skill required.

[104] It is clear that the inclusion of the term ‘immediate’ was an error, and that the word 
‘intermediate’ was intended. As such, we will redraft the relevant indicative task in Schedule 
A.6 as follows:

‘undertaking intermediate art and design to their level of training and accredited skill.’

2.7 Health Professionals and Support Services Award 2010

[105] An exposure draft78 for the Health Professionals Award was published following the
June 2017 statement. Ai Group79 and ABI & NSWBC80 filed submissions in response to the 
June 2017 statement. 

[106] Ai Group,81 the Private Hospital Industry Employer Associations (PHIA),82 the 
Australian Dental Association (ADA)83 and South Australian Employers’ Chamber of 
Commerce and Industry (Business SA)84 also filed submissions in relation to outstanding 
technical and drafting issues following the October 2016 decision.

[107] The parties’ submissions were arranged by item number in a summary of status 
document that was published on 12 September 2018.85 Item 3 relates to the Ai Group 
submission regarding the list of facilitative provisions and is dealt with above at paragraphs 
[8] and [9].

[108] Items A1, A2, A3 and 1 remain outstanding. 

Item A1—Part-time employment

[109] Ai Group submits that the provision currently appearing at clause 6.3(a)(iii) should be 
deleted and replaced with a clause mirroring the terms of clause 10.3(d) of the current 
award.86 The clauses relate to part-time employment. 

[110] Clause 10.3(d) of the current award is in the following terms:

‘The terms of this award will apply on a pro rata basis to part-time employees on the basis that 
the ordinary weekly hours for full-time employees are 38.’

[111] Clause 6.3(a)(i) of the exposure draft is in the following terms:

                                               
78 Exposure draft, Health Professionals and Support Services Award 2015, 13 June 2017
79 Ai Group submission, 30 June 2017 at paras 10-12
80 ABI & NSWBC submission, 10 July 2017 at paras 8-11
81 Ai Group submission, 9 December 2016 at paras 47-64
82 PHIA submission, 30 November 2016 at p.2
83 ADA submission, 9 December 2016 at para 2.1
84 Business SA submission, 9 December 2016 at para 1.2
85 Summary of status – Group 2 Awards – Technical and Drafting Issues at p.6-7
86 Ai Group submission, 14 December 2016 at para 57






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‘(a) A part-time employee:
…

(iii) receives, on a pro-rata basis, pay and conditions equivalent to those of full-
time employees who do the same kind of work.’

[112] Ai Group submits that the change represents a substantial deviation from the existing 
award provisions, as the clause in the exposure draft ‘purports to deal with all pay and 
conditions’87 rather than those specifically the subject of the award. Ai Group submits:

‘It is neither necessary (in the sense contemplated by s.138) nor appropriate for an award to 
deal with over-award terms and conditions of employment. A provision that appears to require 
that a part-time employee receive, on a pro rata basis, over-award terms and conditions to 
which a full-time employee is entitled, is not necessary to ensure a fair and relevant minimum 
safety net of terms and conditions. This is consistent with the Commission’s decision that 
penalties payable under the award are to be calculated by reference to the minimum rate 
prescribed by the award; the relevant provisions do not require that the penalty be calculated 
on a rate that includes over-award components.’88

[113] Furthermore, Ai Group submits that, ‘as the entitlement to pro-rata payments under the 
current award arise if a part-time employee has an entitlement to that amount or condition by 
virtue of the terms of the relevant provision that provides that term or condition’, the inclusion 
of the reference to full-time employees ‘who do the same kind of work’ is confusing and 
unnecessary.89

[114] The redrafted provision does change the effect of the equivalent provision in the 
current award. However, the current provision is deficient in a number of respects. As Ai 
Group have pointed out in relation to a number of other instruments the statement that the 
“terms of this award apply on a pro-rata basis to part-time employees” is not entirely correct. 
Some terms such as the quantum of annual leave and personal/carer’s leave apply on a pro-
rata basis but other provisions such as allowances, penalty rates and loadings may not. 

[115] We refer to the Statement [2018] FWC 411 where Hatcher VP considered a clause that 
the Clerks—Private Sector Award 2010 applied in the same way to part-time and full-time 
employees. The Vice President noted that ‘on normal principles of interpretation, the award 
would be read as applying to everybody covered by it unless it specifically provided 
otherwise, and that on this basis the clause may be deleted.’90

[116] This issue will be determined by a separately constituted Full Bench. 

Item A2—Breaks 

[117] Ai Group submits that clause 9.1(a) of the exposure draft changes the equivalent 
provision in the current award, resulting in a substantive change.91

                                               
87 Ai Group submission, 14 December 2016 at para 54
88 Ibid at para 55
89 Ibid 2016 at para 56
90 [2018] FWC 411 at [18]
91 Ai Group submission, 30 June 2017 at para 12






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[118] Clause 27.1(a) of the current award is in the following terms:

‘An employee who works in excess of five hours will be entitled to an unpaid meal break of 
not less than 30 minutes and not more than 60 minutes.’

[119] Clause 9.1(a) of the exposure draft reads as follows:

‘An employee who works in excess of five hours will be entitled to an unpaid meal break of 
between 30 minutes and 60 minutes.’

[120] Ai Group submits that the wording of clause 9.1(a), read literally, would require an 
employer to grant an employee an unpaid meal break of at least 31 minutes. Ai Group seeks 
the reinstating of the existing wording.92

[121] We acknowledge Ai Group’s point and propose a minor amendment to address the
point. We will delete the word ‘between’ from the clause and it will read as follows: 

‘An employee who works in excess of five hours will be entitled to an unpaid meal break of 
30 to 60 minutes.’

Item A3—Shiftwork penalties

[122] Ai Group submits that the phrase ‘their minimum hourly rate applicable to their 
classification and pay point’ appearing in clause 18.4 should instead read ‘the minimum 
hourly rate applicable to their classification and pay point’ in order to ‘make clear that 
provision is in fact referring to the minimum hourly rate prescribed by the award, not the 
minimum hourly rate payable to a specific employee, which may include over award 
payments.’93

[123] We agree and will make the proposed change.

Item 1—overtime rates

[124] Ai Group seeks to have the wording of clause 19.1 of the exposure draft, which deals 
with overtime payments, referred to the Full Bench specially constituted to deal with 
substantive issues arising out of the Health Professionals Award (AM2016/31).94

[125] In the first exposure draft, clause 19.1 (which is now numbered clause 19.2 in the 
current exposure draft) was in the following terms:

‘19.1 Overtime rates

(a) An employee who works outside their ordinary hours on any day will be paid 
at the rate of: 

                                               
92 Ai Group submission, 30 June 2017 at para 12
93 Ai Group submission, 14 December 2016 at para 61
94 Ai Group submission, 14 December 2016 at para 64






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(i) 150% of the minimum hourly rate for the first two hours; and 

(ii) 200% of the minimum hourly rate thereafter. 

(b) All overtime worked on a Sunday will be paid at the rate of 200% of the 
minimum hourly rate.

(c) These extra rates will be in substitution for and not cumulative upon the shift 
loading prescribed in clause 18.4.

(d) Part-time employees

Where agreement has been reached in accordance with clauses 6.3(b) or (c), a 
part-time employee who is required by the employer to work in excess of those 
agreed hours must be paid overtime in accordance with this clause.’

[126] A new version of clause 19 was inserted in Exposure Draft published on the 
4 December 2015.95 Following conferences with interested parties, Commissioner Roe 
produced a report to the Full Bench that referred to a HSU package of submissions, including 
a variation clause 19. 96 The proposed clause 19 stated:

‘19.1 Overtime is paid in the following circumstances:

(a) Where a full-time employee:

(i) works in excess of their ordinary hours;

(ii) works in excess of 10 hours per shift; 

(b) Where a part-time employee:

(i) works in excess of their ordinary hours, except where agreement has been 
reached in accordance with clauses 6.3(d); and/or 

(ii) works in excess of 10 hours per shift; and/or 

(iii) works in excess of an average of 38 hours per week in a fortnight or four 
week period. 

(c) Where a casual employee: 

(i) works in excess of 10 hours per shift; and/or

(ii) works in excess of 38 hours per week or 76 hours in a fortnight.

(iii) where an employee is deprived of part of their break between shifts as 
required by clause 19.3.’

[127] In the report to the Full Bench, Commissioner Roe asked parties for submissions on 
clause 19 as part of the HSU package.97 CAA98 and ABI & NSWBC99 made submissions in 
support of the proposed overtime clause. At a conference on 7 July 2016, the parties discussed 

                                               
95 Exposure Draft, Health Professionals and Support Services Award, 4 December 2016
96 Report to the Full Bench, 16 April 2016
97 Report to the Full Bench, 16 April 2016
98 ACA submission, 5 May 2016
99 ABI & NSWBC submission, 4 May 2016






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the outstanding eight issues listed in a Notice of Listing,100 including clause 18—overtime. 
Vice President Hatcher stated that draft determinations were to be referred to a separately 
constituted Full Bench.101 The HSU submitted a draft determination in the above form.102

[128] Clause 19 of the exposure draft concerning overtime was referred to a separately 
constituted Full Bench, together with the other HSU proposals.103

[129] Ai Group submits that it does not agree to this form of clause 19.1, and submits that ‘it 
is not clear that the provision is in fact documented as one that was agreed between the parties 
in Commissioner Roe’s various reports.’104

[130] Ai Group further submits that it represents a substantive change such as by requiring 
overtime payments after 10 hours of work, as opposed to after 10 ordinary hours of work as 
under the current award.105

[131] Ai Group therefore submits that ‘consideration of this matter should accordingly be 
referred to the Full Bench constituted to deal with substantive claims to vary that award 
(AM2016/31).’106

[132] This matter was referred to a separate Full Bench for hearing and determination in 
[2016] FWCFB 7254.  This matter was to have been dealt with by the Health awards Full 
Bench, but was overlooked. It does not appear that this item was an agreed item at the time 
the change to the exposure draft was made. The matter will be referred to the Full Bench in 
AM2016/31. 

Item 2—overtime rates

[133] Following the publication of the Health Professionals Exposure Draft in June 2017,107

Ai Group suggested that the words “of the minimum hourly rate” be inserted in clauses 
19.2(a), (b) and (c) concerning overtime rates. In the June 2017 Exposure Draft, clause 19.2 
stated: 

‘19.2 An employee who works overtime shall be paid the following rates based on the 
minimum hourly rate for their employment classification: 

(a) Monday to Saturday - 150% for the first two hours and 200% thereafter;

(b) Sunday - 200%; 

(c) Public Holidays - 250%;

                                               
100 Notice of Listing, 7 July 2016
101 Transcript, 7 July 2016 at [140]
102 HSU submission, 5 August 2016
103 [2016] FWCFB 7254 at [100]
104 Ai Group submission, 14 December 2016 at para 63
105 Ibid
106 Ibid at para 64
107 Exposure Draft, Health Professionals and Support Services Award, 13 June 2017






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(d) Overtime rates under this clause will be in substitution for and not cumulative upon 
the penalties and loadings prescribed in clause 18 – Penalty rates and shiftwork and 
the casual loading in clause 6.4(e).”

[134] Subsequently, Ai Group and ABI filed submissions seeking the removal of the words 
‘based on the minimum hourly rate’ from the preamble, and the insertion of the words ‘of the 
minimum hourly rate’ after each percentage figure.108 Ai Group submitted that the proposal 
was consistent with [2015] FWCFB 4658 where the Full Bench decided ‘200% of the 
minimum hourly rate’109 was preferable to ‘double time.’

[135] In the November 2017 Health Professionals Exposure Draft110, clause 19.2 had been 
amended in the following way: 

‘19.2 An employee who works overtime shall be paid the following rates based on the 
minimum hourly rate for their employment classification: 

(a) Monday to Saturday - 150% of the minimum hourly rate for the first 
two hours and 200% of the minimum hourly rate thereafter;

(b) Sunday - 200% of the minimum hourly rate;

(c) Public Holidays - 250% of the minimum hourly rate;

(d) Overtime rates under this clause will be in substitution for and not 
cumulative upon the penalties and loadings prescribed in clause 18 –
Penalty rates and shiftwork and the casual loading in clause 6.4(e).’

[136] We agree with Ai Group’s proposal to insert reference to the minimum hourly rate. 
We note that the Health Professionals Award does not contain an all purposes allowance and 
that specifying payment of the minimum hourly rate will not impact on calculation of 
overtime. Further, the June 2017 Exposure Draft had already contained a reference to 
overtime rates based on the minimum hourly rate, and therefore is a change of style rather 
than substance. Consistent with our approach to this issue in other awards,111 we are satisfied 
that this is an appropriate change to make. 

Item 4—Summary of hourly rates

[137] A number of parties identified an error in the footnote appearing in the table contained 
in Schedule C.1.1. The parties correctly identified that the note reads ‘between 6.00 pm and 
6.00 pm’ when it should have read ‘between 6.00 pm and 6.00 am’.112 The exposure draft has 
been updated to correct this error.

                                               
108 Ai Group submission, 30 June 2017 at para 11; ABI submission, 10 July 2017 at p.3
109 [2015] FWCFB 4658 at [95]
110 Exposure Draft, Health Professionals and Support Services Award, 10 November 2017
111 [2015] FWCFB 4658 at [96]
112 PHIA submission, 30 November 2016 at p.2.; Business SA submission, 9 December 2016 at para 1.2.; ADA submission, 9 

December 2016 at para 2.1






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2.8 Horse and Greyhound Training Award 2010

[138] A revised exposure draft113 for the Horse and Greyhound Award was published 
following the June 2017 statement. Ai Group filed two submissions in relation to the Horse 
and Greyhound Training Award; one in response to the June 2017 statement,114 and one in 
response to the October 2016 decision.115 Items 1D, 1E, 1F and 2B of the summary document 
related to minor typographical or cross-referencing errors which have been corrected. 116 Item 
1C, which relates to the classification of minimum wages, was referred to the Plain Language 
Full Bench (AM2016/15).117 Item 1 relates to facilitative provisions and is dealt with above at 
paragraphs [8] and [9]. 

[139] Items 1, 1A, 2 and 2A remain outstanding. 

Item 1A—Part-time employment 

[140] Ai Group submit that the part-time employment provision appearing at 
clause 6.3(a)(iii) of the exposure draft deviates substantially from those provisions appearing 
in the current award. Ai Group submit that clause 6.3(a)(iii) of the exposure draft should be 
deleted and a new provision, in the same terms as that which appears at clause 10.3 of the 
current award, should be inserted at clause 6.3(b) of the exposure draft.118

[141] Clause 6.3(a)(iii) of the exposure draft is as follows:

‘(a) A part-time employee:
…

(iii) receives, on a pro-rata basis, pay and conditions equivalent to those of 
full-time employees who do the same kind of work.’

[142] Clause 10.3 of the current award states the following:

‘A part-time employee means an employee who works a regular pattern of hours from week to 
week which is less than the standard ordinary hours in any week. The terms of this award 
apply pro rata for part-time employees on the basis that ordinary weekly hours for full-time 
employees are 38.’

[143] Ai Group submit the following:

‘It is neither necessary (in the sense contemplated by s.138) nor appropriate for an award to 
deal with over-award terms and conditions of employment. A provision that appears to require 
that a part-time employee receive, on a pro rata basis, over-award terms and conditions to 
which a full-time employee is entitled, is not necessary to ensure a fair and relevant minimum 
safety net of terms and conditions. This is consistent with the Commission’s decision that 
penalties payable under the award are to be calculated by reference to the minimum rate 

                                               
113 Exposure draft, Horse and Greyhound Training Award 2015, 13 June 2017
114 Ai Group submission, 30 June 2017 at para 13
115 Ai Group submission, 14 December 2016 at para 65
116 Summary of status – Group 2 Awards – Technical and Drafting Issues at p.10-11
117 [2018] FWC 1544 at [22]
118 Ai Group submission, 14 December 2016 at paras 71-75






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prescribed by the award; the relevant provisions do not require that the penalty be calculated 
on a rate that includes over-award components.’119

[144] Similar arguments were advanced by Ai Group in relation to the Health Professionals 
Award which are dealt with above at paragraphs [109] – [115]. As this issue is similar to that 
raised in the Health Professionals Award, it will also be determined by the same separately 
constituted Full Bench (mentioned at [117] above).  

Item 1C—Classifications and minimum wages

[145] Ai Group submit that the words ‘(full-time employee)’ should be inserted beneath the 
words ‘minimum weekly rate’ in the table appearing at clause 9.1 of the exposure draft.120 Ai 
Group submit that clause 9.1, read literally, ‘purports to require the payment of the minimum 
weekly rate to all employees including part-time and casual employees.’121

[146] While Ai Group concedes that arguably clauses 6.4(b)(iii) and 6.5(e)(i) of the 
exposure draft ‘require only the payment of the minimum hourly rates to part-time and casual 
employees respectively, at the very least clause 9.1 creates a tension with those provisions.’122

[147] Ai Group has raised this issue in relation to a number of different exposure drafts. In 
respect of some of these exposure drafts the various interested parties have given their consent 
to this change, reflected in Reports to the Full Bench.

[148] We have decided that this issue should be resolved consistently across all awards 
where it arises. We have determined that it is best dealt with by the Plain Language Full 
Bench and the issue has been referred to that Full Bench for consideration.123

Item 2—Definition of ‘all purpose rate’

[149] Ai Group submits that the definition of ‘all purpose rate’ appearing in the definitions 
schedule should be removed, as the term does not appear elsewhere in the exposure draft.124

[150] The term ‘all-purpose rate’ is utilised at clause 6.4(e)(iii) in the context of the casual 
loading to clarify that the 25% loading is an all purpose loading to be used when calculating 
any penalties or loadings (including overtime). As the term appears elsewhere in the exposure 
draft it is appropriate that the definition remain. 

[151] We note for completeness that overtime entitlements for casuals, including in the 
Horse and Greyhound Award, is being considered by a Full Bench (AM2017/51).  

Item 2A—definition of ‘apprentice jockey’

                                               
119 Ibid at para 74
120 Ai Group submission, 14 December 2016 at para 78
121 Ibid at para 76
122 Ibid at para 77
123 [2018] FWC 1544 at [14] – [22]
124 Ai Group submission, 30 June 2017 at para 14






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[152] Ai Group submits ‘the definition of apprentice jockey is not in the same terms as that 
currently found in the award and this should be amended.’125

[153] The definition of ‘apprentice jockey’ appears in the current award at clause 3 
(definitions) in the following terms:

‘apprentice jockey means a person who is employed as an apprentice jockey and is 
undertaking a recognised apprenticeship to acquire the skills and knowledge required to 
achieve a jockey licence. All employment conditions and allowances in this award apply to 
apprentice jockeys when they are undertaking duties described in the award. This award does 
not cover apprentice jockeys when they are undertaking work in accordance with a trial or 
race riding arrangement for which they receive payment. For example, if an apprentice jockey 
is engaged in race riding at a race meeting for which they receive a payment they would not be 
entitled to wages or allowances under the award in respect of their attendance at the race 
meeting and undertaking that work”

[154] In the exposure draft, the definition of ‘apprentice jockey’ appears in the following 
terms:

‘apprentice jockey means a person who is employed as an apprentice jockey and is 
undertaking a recognised apprenticeship to acquire the skills and knowledge required to 
achieve a jockey licence.’

[155] However, clause 3.3 of the exposure draft, appearing in the coverage clause, appears 
as follows:

‘This award does not cover apprentice jockeys when they are undertaking work in accordance 
with a trial or race riding arrangement for which they receive payment. For example, if an 
apprentice jockey is engaged in race riding at a race meeting for which they receive a payment 
they would not be entitled to wages or allowances under the award in respect of their 
attendance at the race meeting and undertaking that work.'

[156] The existing definition of ‘apprentice jockey’ has two effective functions. It provides a
definition for the purposes of the award and it also affects coverage of the award by 
specifying the circumstances in which an apprentice jockey will not be covered by the award. 
As such, we are of the view that the existing definition is best separated out into two distinct 
parts. The actual definition of the term will stay in the clause containing definitions, while the 
section that concerns the coverage of the award will remain in the coverage clause. 

2.9 Medical Practitioners Award 2010

[157] An exposure draft126 for the Medical Practitioners Award was published following the
June 2017 statement. ASMOF127 filed a submission in response to the June 2017 statement. 
Ai Group128 filed a submission following the October 2016 decision.

                                               
125 Ai Group submission, 14 December 2016 at para 88
126 Exposure draft, Medical Practitioners Award 2015, 13 June 2017 
127 ASMOF submission, 30 June 2017 
128 Ai Group submission, 14 December 2014 at para 90






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[158] Item A1 of the summary document was referred to the Plain Language Full Bench 
(AM2016/5).129 Item A2 relates to the definition of all-purpose allowances and was 
determined by a separately constituted Full Bench.130 Item 1 related to a drafting omission 
which has been corrected in accordance with a Full Bench determination.131

[159] There are no other outstanding issues in relation to this award.

2.10 Nurses Award 2010

[160] An exposure draft132 for the Nurses Award was published following the June 2017 
statement. The Australian Nursing & Midwifery Federation (ANMF)133 and Ai Group134 filed 
submissions in response to the June 2017 statement. Ai Group,135 Aged Care Employers 
(ACE),136 and the ANMF137 filed submissions following the October 2016 decision. Item 1
and 7 were resolved by agreement138 while items 4A139 and 6140 have been referred to the 
Plain Language Full Bench (AM2016/5). The ANMF withdrew item 2 which related to 
classifications definitions.141 Item 3 relates to the list of facilitative provisions and is dealt 
with above at paragraphs [8] and [9].

[161] Items 4 and 5 remain outstanding. 

Item 4—Unpaid meal breaks

[162] Ai Group submit that the redrafting of clause 9.1(a) of the exposure draft results in a 
substantive change.142

[163] Clause 9.1(a) of the exposure draft reads as follows:

‘An employee who works in excess of five hours will be entitled to an unpaid meal break of 
between 30 minutes and 60 minutes.’

                                               
129 [2018] FWC 1544 at [22]
130 [2015] FWCFB 4658 at [91]
131 PR583033
132 Exposure draft, Nurses Award 2015, 13 June 2017 
133 ANMF submission 30 June 2017
134 Ai Group submission, 30 June 2017 at para 16
135 Ai Group submission 9 December 2016 at paras 102-116; Ai Group submission 4 March 2015 at paras 90-105
136 ACE submission, 8 December 2016 at p.2
137 ANMF submission, 30 November 2011; ANMF submission in reply, 4 March 2015
138 Report to the Full Bench, 9 October 2015
139 [2018] FWC 1544 at [22]
140 [2017[ FWCFB 5536 at [581]
141 ANMF submission, 17 March 2017 at para 3
142 Ibid






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https://www.fwc.gov.au/documents/decisionssigned/html/2017fwcfb5536.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2018fwc1544.htm
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/reportfb-091015-am2014199andors.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014207-replysub-anmf-040315.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014207-sub-anmf-301116.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014204andanor-sub-ace-081216.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014198andors-sub-aig-040315.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014198andors-sub-aig-141216.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2016209andors-sub-aig-300617.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am21014207-sub-anmf-300617.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/exposure-draft-nurses-revised-130617.pdf
https://www.fwc.gov.au/documents/awardsandorders/html/pr583033.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2015fwcfb4658.htm
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[164] The equivalent clause in the current award is clause 27.1(a) and is in the following 
terms:

‘An employee who works in excess of five hours will be entitled to an unpaid meal break of 
not less than 30 minutes and not more than 60 minutes.’

[165] Ai Group submit that the wording of clause 9.1(a), read literally, would require an 
employer to grant an employee an unpaid meal break of at least 31 minutes. Ai Group seeks 
the reinstating of the existing wording.143

[166] Consistent with the approach we have taken with a similar provision above in relation 
to the Health Professionals Award, we propose the following minor amendment to rectify this 
point:

‘An employee who works in excess of five hours will be entitled to an unpaid meal break of 
30 to 60 minutes.’

Item 5—Shift penalties 

[167] Ai Group submits that the words ‘their minimum hourly rate’ appearing in clauses 
14.2(a) and 14.2(b) should instead read ‘the minimum hourly rate’ in order to ‘make clear that 
the provision is referring to the minimum hourly rate prescribed by the award, not the 
minimum hourly rate payable to a specific employee, which may include over award 
payments.’144 Ai Group also raise this issue in relation to clause 16.1 and 16.2 of the exposure 
draft which deals with Saturday and Sunday work. 

[168] The ANMF opposes Ai Group’s submission, and submit that the change should not be 
made.145 The ANMF submit that the wording should be amended to reflect that which has 
been agreed to by the parties in other parts of the exposure draft (for example ‘minimum 
hourly rate applicable to their classification and pay point’).146 The ANMF submit the issue 
‘was discussed at length by the parties and the wording was agreed in relation to several 
clauses,’ and that this was contained in the Report to the Full Bench by Commissioner Roe.147

The ANMF submission goes onto explain the outcome reflected a conference that was held by 
Commissioner Roe on 8 October 2015.148 The ANMF submit that clauses 14.2 and 16 were 
inadvertently overlooked in that conference and the relevant clauses raise exactly the same 
issue as those that were agreed in the conference.149     

[169] We agree with the submission of the ANMF. In other exposure drafts published as part 
of the Review, the wording has tended to be ‘of the minimum hourly rate’ rather than of ‘their 
minimum hourly rate’, however the circumstance in the Nurses award differs. The parties 
have agreed to insert different wording in other clauses of the Nurses Exposure Draft as a 

                                               
143 Ai Group submission, 30 June 2017 at para 16
144 Ai Group submission, 14 December 2016 at paras 113-114
145 ANMF submission, 30 June 2017 at p.1
146 ANMF submission, 30 June 2017 at p.1-2
147 See Report to the Full Bench, 9 October 2015 at para 40
148 Transcript, 8 October 2015, PN17-PN64
149 ANMF submission, 30 June 2017






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https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/reportfb-091015-am2014199andors.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am21014207-sub-anmf-300617.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am21014207-sub-anmf-300617.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014198andors-sub-aig-141216.pdf
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result of lengthy discussions, and we agree with the ANMF that it appears it was an oversight 
to exclude clauses 14.2 and 16 as part of the parties agreed outcome. Accepting the change 
sought by Ai Group would lead to inconsistency within the terms of the Nurses exposure 
draft. 

[170] The relevant clauses (14.2(a), 14.2(b), 16.1 and 16.2) will read ‘of their minimum 
hourly rate’, rather than of ‘the minimum hourly rate.’

Item 7—Rest period after overtime

[171] In a submission filed in 2015, ACE submit that the exposure draft clause 15.3(b) 
should be amended ‘to clarify that loss of pay is limited to rostered ordinary hours occurring 
during an overtime rest period.’ 

[172] The relevant clause in the Nurses Award currently states: 

28.3 Rest period after overtime

(b) An employee, other than a casual employee, who works so much overtime 
between the termination of their ordinary work on one day and the 
commencement of their ordinary work on the next day, 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 ordinary working time occurring during such 
absence.

[173] Clause 15.3(b) of the exposure draft was drafted in the following terms:

‘(b) An employee working overtime, other than a casual employee, is entitled to 10 
consecutive hours off duty between the termination of work on one day and the 
commencement of work on the next day, without loss of pay for ordinary hours.’

[174] ACE submit that the clause should read:

‘An employee working overtime, other than a casual employee, is entitled to 10 consecutive 
hours off duty between the termination of work on one day and the commencement of work on 
the next day, without loss of pay for rostered ordinary hours during the absence.’

[175] The ANMF submit that the final words of proposed clause 15.3(b) should read: “without 
loss of pay for ordinary working time occurring during such absence.” The ANMF submit that 
“[t]his wording reflects the final words of the existing clause 28.3(b).”150 Ai Group has identified 
no problem with the ACE proposal.151

                                               
150 ANMF submission, 4 March 2015 at p.3
151 Ai Group submission, 4 March 2015 at para 100






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[176] Throughout the conference process before Commissioner Roe, the parties arrived at a 
consent position, which appears to have made their submissions above irrelevant. The parties 
agree that the existing wording of the clause should be retained. The Report to the Full Bench 
highlights this position. It notes:

‘[47] ITEM 54 Agreed. Amend 15.3(b) and (c) by using the current award clause 28.3 
(however the minimum hourly rate term should be used consistent with full bench 
decision).’152

[177] We are satisfied that this is an appropriate course of action and will give effect to the 
parties’ consent position. The exposure draft will be updated accordingly. We note that the 
term ‘double time’ appearing in the clause will be replaced with the term ‘200%’.

2.11 Passenger Vehicle Transportation Award 2010

[178] The exposure draft for the Passenger Vehicle Transportation Award 2010 (Passenger 
Vehicle Award) and a summary of submissions regarding outstanding issues for the exposure 
draft was published with the June 2017 statement. One item in relation to the casual 
employment clause was identified as outstanding. The item was referred to the casual 
employment Full Bench (AM2014/197) and has been determined. 

[179] There are no outstanding issues in relation to this award.

2.12 Racing Industry Ground Maintenance Award 2010

[180] An exposure draft153 for the Racing Industry Award was republished following the
June 2017 statement. Ai Group filed a submission in response to the June 2017 statement154

and also filed a submission following the October 2016 decision.155 The submissions were 
arranged by item number in a summary of status document.156 Item A2 was referred to the 
Plain Language Full Bench (AM2016/15). Item A1 relates to the list of facilitative provisions 
and is dealt with above at paragraphs [8] and [9].

[181] Item 1 remains outstanding. 

Item 1—Rates – Casual employees 

[182] Item 1 relates to the expression of employee rates in schedule B.3–Casual employees.

[183] Ai Group submits that schedule B.3, as it currently stands, implies that “all casual 
employees are entitled to the rates there set out”.157 Ai Group notes that per clause 6.5–Casual 

                                               
152 Report to the Full Bench, 9 October 2015
153 Exposure draft, Racing Industry Ground Maintenance Award 2015, 13 June 2017 
154 Ai Group submission, 30 June 2017 at para 19
155 Ai Group submission, 14 December 2016 at paras 117-126
156 Summary of status – Group 2 Awards – Technical and Drafting Issues at p.18
157Ai Group submission,14 December 2016 at paras 125-126 






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https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014198andors-sub-aig-141216.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2016209andors-sub-aig-300617.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/exposure-draft-racing-industry-further-revised-130617.pdf
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employment, morning work, evening work, Saturday, Sunday and public holiday rates and 
overtime rates do not apply to a casual employee engaged on night cleaning duties. 

[184] Ai Group proposes inserting a footnote to show which rates apply to which casual 
employees under the Award.158 However, they do not propose any drafting. There were no 
submissions in reply to this item.

[185] The latest exposure draft of this award (13 June 2017) incorporates a footnote next to 
the term ‘night cleaning’ in the table appearing at schedule B.3.1 Casual employees–ordinary 
hours and penalty rates that references clause 6.5 in the following terms:

‘Night cleaning means night cleaning duties (see clause 6.5(c))’

[186] Clause 6.5(c) is reproduced below. 

‘6.5 Casual employment

(c) A casual employee engaged on night cleaning duties must be paid, in addition 
to the casual loading of 25%, a shift allowance of 30% of the ordinary hourly 
rate for each hour work worked. The following provisions do not apply to 
casual employees on night cleaning duties:

 clause 8—Ordinary hours of work and rostering; 
 clause 13—Penalties; and
 clause 14—Overtime.

[187] B.3.2 Casual employees–weekend and public holiday penalties and B.3.3 Casual 
employees–overtime do not contain such a footnote. 

[188] We agree that schedule B should be clarified to make it clear that the penalty rates and 
casual loading in schedules B.3.2 and B.3.3 do not apply to those casual employees engaged 
in night cleaning duties per clause 6.5(c).

[189] In the absence of submissions from the parties, we have decided to amend the 
schedule in the following manner: the ‘Night cleaning’ column in B.3.1 will be removed and 
a separate table “Schedule B.4 Casuals engaged in night cleaning duties” will be inserted into 
Schedule B.

[190] We note that the Alpine Resorts Award, like the Racing Industry Ground Maintenance 
Award, has two casual employee rates, one which attracts penalty and overtime rates, and one 
which does not. Under the Alpine Resorts Award, casual employees are entitled to a public 
holiday and penalty rates per schedule C.1. Casual snow sports instructors, however, are paid 
a higher hourly rate, and are not entitled to penalty rates, their rates are set out in schedule C.2 
of the Award.

[191] Interested parties will have an opportunity to comment on the accuracy of the separate 
table inserted into Schedule B when the exposure draft is republished. 

                                               
158 Ibid






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2.13 Road Transport (Long Distance Operations) Award 2010

[192] A revised exposure draft159 for the Road Transport (Long Distance Operations) Award 
2010 (the Long Distance Award) was republished on 13 June 2017 following the June 2017 
Statement. Submissions were received from the NRTA,160 ABI & NSWBC161and Ai Group.162

The NRTA,163 ARTIO,164 Ai Group165 and Business SA166 also filed submissions following 
the October 2016 decision. In the summary of status document items A1, A2, A5, 1, 2A, 3A, 
4, 4A, 4B, 4C, 4D, 5, 6, 7, 8, 9 and 10 were either confirmed as resolved by agreement, no 
longer pressed, determined by a previous Full Bench decision or related to minor 
typographical or cross-referencing errors which have been corrected. 167 Item A3 has been 
referred to the plain language Full Bench (AM2016/15) for determination. Item A4 relates to 
the list of facilitative provisions and is dealt with above at paragraphs [8] and [9].

[193] Items 1A, 2 and 3 remain outstanding.

Item 1A—Classifications

[194] Clause 7 of the further amended exposure draft contains a redrafted classification 
structure, so as to align classifications contained in the Long Distance Award with those 
contained in the Road Transport and Distribution Award 2010 (the Road Transport Award).

[195] Grades 1 and 2 have been removed from the table of classifications in the further 
amended exposure draft as those grades only have application in the Road Transport 
Award. Therefore, the first classification grade which an employee can be classified under in 
exposure draft is Grade 3. 

[196] Clause 7 of the further amended exposure draft provides as follows: 

‘7. Classifications

Employees are to be classified in accordance with the following grades: 

                                               
159 Exposure draft, Road Transport (Long Distance Operations) 2015,13 June 2017 
160 NRTA submission, 28 June 2017 
161 ABI & NSWBC submission, 10 July 2017 at para 13
162 Ai Group submission, 30 June 2017 at paras 20-23
163 NRTA submission, 29 November 2016 
164 ARTIO submission, 23 November 2016 
165 Ai Group submission, 14 December 2016 at paras 127-137
166 Business SA submission, 9 December 201 at para 1.4
167 Summary of status – Group 2 Awards – Technical and Drafting Issues at p 19-22






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https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014198andors-sub-aig-141216.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014211and212-sub-artio-231116.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014211-sub-natroad-280617.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2016209andors-sub-aig-300617.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2016203andors-sub-abi-100717.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014211-sub-natroad-280617.pdf
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[197] NRTA proposed inserting a note at the end of the table in clause 7 to indicate the 
linkage between the classification structure in the Long Distance Award and the classification 

Grade Description

1 and 2 N/A

3 Driver of two axle rigid vehicle up to 13.9 tonnes GVM. Capacity up 
to eight tonnes.

4 Driver of three axle rigid vehicle over 13.9 tonnes GVM. Capacity 
over eight and up to 12 tonnes.

5 Driver of four axle rigid vehicle over 13.9 tonnes GVM.

Driver of rigid vehicle and heavy trailer combination with GCM of 
22.4 tonnes or less.

Driver of articulated vehicle with GCM of 22.4 tonnes or less.

Capacity over 12 tonnes.

6 Driver of rigid vehicle and heavy trailer combination with GCM over 
22.4 tonnes but not more than 42.5 tonnes.

Driver of articulated vehicle with GCM over 22.4 tonnes.

Driver of low loader (as defined) with GCM of 43 tonnes or less. 

Capacity up to 24 tonnes.

7 Driver of rigid vehicle and heavy trailer combination with GCM over 
42.5 tonnes but not more than 53.4 tonnes.

Driver of double articulated vehicle with GCM 53.4 tonnes or less 
(includes B-doubles).

Driver of low loader (as defined) with GCM over 43 tonnes.

8 Driver of rigid vehicle and trailer(s) or double articulated vehicle 
with GCM over 53.4 tonnes (includes B-doubles).

Multi-axle trailing equipment up to 70 tonnes capacity.

9 Driver of road train or triple articulated vehicle exceeding 94 tonnes 
GCM.

10 Multi-axle trailing equipment.








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structure contained in the Road Transport Award.168 NRTA referred to previous 
submissions169 in which an identical proposal was advanced. 

[198] In making its submission, NRTA noted that in the previous exposure draft,170 the 
description for grades 1 and 2 were replaced with the abbreviation ‘N/A’. Given that the 
abbreviation has been deleted, NRTA submitted that a note would assist those unfamiliar with 
the connection between the grades in the Long Distance Award and the Road Transport 
Award.171

[199] Ai Group submitted that there is merit in aligning the classification structures of the 
Long Distance Award and the Road Transport Award given that some employers utilise both 
instruments and submitted that in accordance with s.134(1)(g) of the Act, this approach goes 
toward a simple and easy to understand modern award system.172 The Ai Group noted 
however, that this approach results in an anomalous outcome in that the new classification 
structure in the Long Distance Award does not commence until grade 3.173

[200] Ai Group submitted that it was proposed at conference that a reference to grades 1 and 
2 be included in the new classification structure with a note indicating that they were “not 
applicable” to avoid interested persons being confused as to why the classification structure 
begins at grade 3.174 Ai Group noted that this reference has been deleted from the exposure 
draft, and submitted they are content for the Full Bench to decide whether the references to 
grades 1 and 2 should be retained considering this background.175

[201] In our view it would assist in the understanding of the award if grades 1 and 2 were 
retained in the classification table and include N/A in the description column to explain that 
these grades are not applicable to this award. 

[202] We also agree that a note at the conclusion of clause 7, to clarify that the Long 
Distance Award and the Road Transport Award share a common employee classification 
structure, would be helpful. The following note will be inserted into the exposure draft at the 
conclusion of clause 7:

‘NOTE: Grade levels in this award align with equivalent grade levels in the Road Transport 
and Distribution Award 2015. Grades 1 and 2 are not applicable to this award.’

Item 2—Minimum wages—Schedule A

[203] ARTIO submits that the minimum weekly rates of pay set out in the table at clause 
11.1 do not reflect the current rates for the respective classifications.176

                                               
168NRTA submission, 28 June 2017 at para 8
169NRTA submission, 29 November 2016 at para 7
170 Exposure draft Road Transport (Long Distance Operations) 2015, 2 November 2016
171 NRTA submission, 28 June 2017 at para 8
172 Ai Group submissions, 30 June 2017 at para 22
173 Ai Group submissions, 30 June 2017 at para 22
174Ai Group submissions, 30 June 2017 at para 22
175 Ai Group submissions, 30 June 2017 at para 22
176 ARTIO submissions, 23 November 2016 at para 5






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[204] ARTIO submits that this issue also arises in relation to Schedule A to the further 
amended exposure draft,177 and submits that the ‘standard rate’ contained in the definitions 
section of the further amended exposure draft may also be incorrect.178

[205] The NRTA submits that (in their calculation) the rates contained in the further 
amended exposure draft are correct up to 30 June 2017.179

[206] We have reviewed the rates set out in clause 11.1 of the further amended exposure 
draft published by the Commission on 13 June 2017. It would appear that when aligning the 
classification grades between the two awards an administrative error resulted in the minimum 
weekly rate of pay for Grade 1 in the Road Transport Award being incorrectly aligned with 
Grade 3 of the Long Distance Award. This does not reflect the intention of the parties when 
seeking to align the classifications of both awards. 

[207] The following table sets out the current weekly rates of pay contained in the Road 
Transport and the Long Distance Award. 

Road Transport and 
Distribution Award 2010

Road Transport (Long 
Distance Operations) 

Award 2010

Transport 
worker 
grade

Minimum 
weekly rate

$

Grade Minimum weekly 
rate

$

1 761.70

2 780.90

3 790.50 1 790.50

4 805.00 2 805.00

5 815.10 3 815.10

6 824.50 4 824.50

7 836.50 5 836.50

8 860.80 6 860.80

9 875.20 7 875.20

10 896.90 8 896.90

[208] We will correct the administrative error in the next version of the exposure draft for 
the Long Distance Award so that the table of minimum weekly rates of pay reads as follows 
(when compared to the current award classification structures). The wages in the tables are the 
current wages rates following the 2017-18 Annual Wage Review Decision:

                                               
177 ARTIO submissions, 23 November 2016 at para 5(a)
178 ARTIO submissions, 23 November 2016 at para 5(b)
179 NRTA submission, 28 June 2017 at para 13






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Road Transport and 
Distribution Award 2010

Road Transport 
(Long Distance 

Operations) Award 
2010

Road Transport (Long 
Distance Operations) 

Exposure Draft

Transport 
worker 
grade

Minimum 
weekly rate

$

Grade Minimum 
weekly rate

$

Grade Minimum 
weekly rate

$

1 761.70

2 780.90

3 790.50 1 790.50 3 790.50

4 805.00 2 805.00 4 805.00

5 815.10 3 815.10 5 815.10

6 824.50 4 824.50 6 824.50

7 836.50 5 836.50 7 836.50

8 860.80 6 860.80 8 860.80

9 875.20 7 875.20 9 875.20

10 896.90 8 896.90 10 896.90

[209] Any required amendments to Schedule A will be also be made.

[210] With regard to the submission that the standard rate definition is incorrect, we note the 
further amended exposure draft contains an agreed change to the definition of “standard rate” 
in Schedule F so that the definition now reads “minimum weekly rate prescribed for Grade 6 
in clause 11.1”. This is the correct reference. Any outstanding consequential amendments 
required to correct the exposure draft’s reference to the “standard rate” throughout the 
document will be made accordingly.  

Item 3—Guaranteed minimum payment - New Provision 

[211] In a report to the Full Bench180the Commission recorded the parties’ agreement to add 
the following sentence to clause 11.2(a):

‘The fortnightly payment must be calculated by reference to continuous consecutive 
fortnightly periods.’

[212] NRTA submits that the sentence should be deleted on the basis that the reference to a 
fortnightly ‘period’ confounds rather than clarifies the calculation of fortnightly payments.181

They submit that the sentence is unnecessary because fortnightly periods can be calculated by 
doubling the prescribed weekly rate.

                                               
180 Report to the Full Bench, 19 February 2016 at para 16
181 NRTA submission, 29 November 2016 at para 10






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[213] Ai Group claims that NRTA unintentionally misstates the proposed variation.182 They 
submit that NRTA’s concern will be addressed if the following wording were adopted:

‘The fortnightly payment must be calculated by reference to consecutive fortnightly periods.’

[214] Ai Group notes that the wording contained in the exposure draft was generally agreed 
by the parties during the conferencing process. It submits that there appears to be no 
substantive difference between the current and the alternate variation to the clause. In a 
further submission, NRTA agreed that Ai Group’s proposed wording provided greater 
clarity.183

[215] We note the wording contained in the further amended exposure draft was inserted by 
agreement between the parties who attended conferences before Senior Deputy President 
Hamberger. However, we agree that the wording proposed by Ai Group is clearer and will be 
adopted at clause 11.2(a).

Item 4B—Articles of clothing allowance

[216] NRTA previously submitted that the deletion of two provisions in clause 12.3(b) of the 
exposure draft necessitates the qualification of clause 12.3(b)(iii).184 The revised exposure 
draft published on 13 June 2017 highlighted a proposed change to clause 12.3(b)(iii) to clarify 
the issue. Clause 12.3(b) of the revised exposure draft is extracted below:

‘(b) Articles of clothing

(i) Where the employer requires an employee to wear any special clothing such 
as any special uniform, cap, overall or other article, the employer must 
reimburse the employee for the cost of purchasing such special clothing 
unless the special clothing is provided by the employer.

(ii) Where an employee is required by the employer to work continuously in 
conditions in which, because of their nature, the clothing would otherwise 
become saturated, the employer must reimburse the employee for the cost of 
purchasing protective clothing unless the protective clothing is provided by 
the employer.

(iii) Clauses 12.3(b)(i) and (ii) do not apply Clause 12.3(b) does not apply to 
employees required to check things such as vehicles, oil, water and tyres. 

(iv) Protective clothing remains the property of the employer and the employee is 
liable for the cost of replacing any article of protective clothing which is lost, 
destroyed or damaged through their own negligence.’

[217] The equivalent provision in the current award is clause 14.2(b) and is extracted below:

‘(b) Articles of clothing

                                               
182 Ai Group submission, 14 December 2016 at para 133-136
183 NRTA submission, 28 June 2017 at para 10
184 NRTA submission, 29 November 2016 at para 14






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(i) Where the employer requires an employee to wear any special clothing such 
as any special uniform, cap, overall or other article, the employer must 
reimburse the employee for the cost of purchasing such special clothing. The 
provisions of this clause do not apply where the special clothing is provided 
by the employer.

(ii) Where an employee is required by the employer to work continuously in 
conditions in which, because of their nature, the clothing would otherwise 
become saturated, the employer must reimburse the employee for the cost of 
purchasing protective clothing. The provisions of this clause do not apply 
where the protective clothing is provided by the employer.

(iii) Provided that this subclause must not apply to employees who are required 
as an adjunct to their normal duties to check such things as vehicles, oil, water 
and tyres.

(iv) Provided further that such protective clothing must remain the property of 
the employer, and that the employee must be liable for the cost of replacement 
of any article of protective clothing which is lost, destroyed or damaged 
through the negligence of the employee.’ (Emphasis added)

[218] The amendment outlined at clause 12.3(b)(iii) in the revised version of the exposure 
draft appears to resolve the issue that the NRTA highlighted in their submission. However, it 
appears to us that the rationale for clause 12.3(b)(iii) in the exposure draft (and clause 
14.2(b)(iii) in the current award) is unclear. In short, if an employee is required to check 
vehicles, oil, water and tyres, then why are they not entitled to be reimbursed for the cost of 
purchasing protective clothing, or entitled to be provided with the required clothing?

[219] It is our provisional view that clause 12.3(b)(iii) be deleted from the exposure draft in 
its entirety. Interested parties are asked to provide a written submission relating to our 
provisional view by no later than 4.00 pm on Wednesday 10 October 2018. 

2.14 Road Transport and Distribution Award 2010 

[220] An exposure draft185 for the Road Transport Award Industry Award was published 
following the June 2017 statement. Ai Group186 and NRTA187 filed submissions in response 
to the June 2017 statement. ARTIO,188 Ai Group189 and NRTA190 filed submissions following 
the October 2016 decision. Items 1A, 1D, 1G, 1H, and 5A were either confirmed as being 
resolved by agreement; determined by a previous Full Bench decision; or related to minor 
typographical or cross-referencing errors which have been corrected. 191

                                               
185 Exposure draft, Road Transport and Distribution Award 2015, 13 June 2017
186 Ai Group submission, 30 June 2017 at para 25-31
187 NRTA submission, 28 June 2017 
188 ARTIO submission, 23 November 2016 at p.3
189 Ai Group submission, 14 December 2016 at paras 138-147
190 NRTA submission, 29 November 2016 
191 Summary of status – Group 2 Awards – Technical and Drafting Issues at p.23-25






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[221] Item 1C, which relates to the classification of minimum wages, and 1F, which 
concerns inconsistent rates of pay, were referred to the Plain Language Full Bench 
(AM2016/15).192 Items 2 and 3, concerning hourly rates of pay for oil distribution workers, 
were referred to the Full Bench dealing with substantive issues in the road transport awards 
(AM2016/32). Item 5, concerning the placement of definitions within the award, will be 
determined by the plain language Full Bench.193

[222] Items A1 1, 1B, 1E, and 4 remain outstanding. 

Item A1 – Facilitation by individual agreement

[223] Ai Group submits clause 5.2(a), which provides a list of facilitative provisions in the 
Road Transport Award, should refer to clause 8.4 of Part 3–Hours of Work and that the 
reference to 8.6(a) should be deleted from 5.2(a)(i) because it is not a facilitative provision.194

Further, the reference to 8.6(b)–Hours of work–spread of hours in clause 5.2(a)(i) should be 
deleted because it is a duplicate of 5.2(a)(ii). Ai Group also submits that the reference to 
clause 18.5–Agreement to take annual leave in advance should be deleted because it is not a 
facilitative provision. 

[224] There were no submissions in reply to this item.

[225] We agree that clause 5.2(a) should refer to clause 8.4 of Part 3—Hours of Work
because it is a facilitative provision. We also agree that the reference to clause 8.6(a) should 
be deleted from 5.2(a) because spread of hours is not a facilitative provision and that the 
reference to clause 8.6(b) should be deleted from 5.2(a)(i) because it is a duplicate of 
5.2(a)(ii).

[226] Consistent with the previous Full Bench decision on this point, we disagree with 
Ai Group’s submission that clause 18.5—Agreement to take annual leave be removed because 
it is a facilitative provision, and appears in a number of other exposure drafts in the list of 
facilitative provisions.195

[227] We therefore propose to amend clause 5.2(a) as follows:

‘5.2 Facilitation by individual agreement

(a) The following facilitative provisions can be utilised upon agreement between an 
employer and an employee:

(i) clause 8.4–Hours of work–ordinary hours 8.6(a) and 8.6(b)—Hours 
of work—ordinary hours, days of the week;

(ii) clause 8.6(b)—Hours of work—spread of hours; 

(iii) clause 8.7—Hours of work—normal rostered day off;

(iv) clause 9.6(a)—Hours of work—rostered days off; 

                                               
192 [2017] FWCFB 5536 at [581]
193 [2017] FWCFB 3433 at [333]
194 See Ai Group submission, 30 June 2017 at para 26
195 [2014] FWCFB 9412 at [37]






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(v) clause 15.7(a)—Shiftwork—transfer to or from shiftwork;

(vi) clause 17.5—Time off instead of payment for overtime

(vii) clause 18.5—Agreement to take annual leave in advance; and 

(viii) clause 18.10—Agreement to cash out annual leave.’

Item 1—Casual loading 

[228] The Australian Road Transport Industrial Organisation (ARTIO) submits that casual 
loading of 25% in clause 6.5(c)–Casual loading is “in addition” to any other penalty payment, 
and should be calculated as a dollar allowance then added to the penalty payment196. The 
NRTA submits that the issue is not outstanding as it has not been pursued, therefore the 
current provisions of the Award should continue.197 There were no further submissions in 
reply from interested parties on this item.

[229] 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 the loaded rate. That is, there is a compounding effect.198

[230] The RTD Award is an affected award as penalties and loadings are expressed as a 
percentage of the ordinary hourly rate. For example:

‘17. Overtime

17.1 For all work done outside ordinary hours the rate of pay will be 150% of the 
ordinary hourly rate for the first two hours and 200% of the ordinary hourly 
rate after two hours.’

[231] In the July 2015 decision the Full Bench expressed the view that it is desirable that 
there be a consistent rule for the calculation of casual loading which should apply across all 
awards. The Bench’s provisional view was that the casual loading would be calculated as 
25% of the minimum rate (not the ordinary hourly rate), with any all purpose allowance being 
added after that.199

[232] This issue was revisited in the September 2015 decision, following further submissions 
from interested parties. The Full Bench then concluded that: 

 for a number of awards containing allowances that are all purpose in nature or 
stated to form part of the ordinary hourly rate, adoption of the provisional view 
would result in a reduction in hourly rates of pay for casual employees;200

                                               
196 ARTIO submission, 23 November 2016 at p.3
197 NRTA submission, 28 June 2017 at para 9
198 [2015] FWCFB 4658 at [42]–[44]
199 [2015] FWCFB 4658 at [70]
200 [2015] FWCB 6656 at [93]






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 the provisional view was inconsistent with the general approach of the AIRC Full 
Bench Award Modernisation Decision of 19 December 2008201 that the casual 
loading should be applied to the ordinary rate rather than the minimum rate;202 and

 adoption of the provisional view was not justified where there was no evidence of 
practical difficulty in the operation of current award provisions which are consistent 
with the Award Modernisation Decision.203

[233] The Full Bench determined that the general approach to casual loading will remain as 
in the exposure drafts, 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.204

[234] The RTD Award contains an all purpose allowance. 13.3(a) states that Special vehicle 
allowances (clause 13.3(b)) is an allowance “paid for all purposes under this award”.

[235] The Full Bench noted the concern underlying the provisional view as to whether it was 
appropriate for certain allowances currently expressed as all purpose to be paid at an 
increased level for casual employees by application of the casual loading. The preferable 
approach to this issue was to permit reconsideration, on an award-by-award basis during the 
course of the 4 yearly review, as to whether any existing allowance should retain its ‘all 
purpose’ designation or should be payable on some different basis.205

[236] Parties will be invited to confirm if casual loading is in addition to the “minimum 
hourly rate” or “ordinary hourly rate” under this Award. The “ordinary hourly rate” is the 
minimum hourly rate plus any applicable all purpose allowances.

Item 1B—Meal and rest breaks 

[237] The ARTIO submits that the word ‘continuous’ should be inserted in clause 11.2(e) to 
ensure consistency with clause 13.5(f)(i).206 The current exposure draft indicates that the 
parties have agreed to the change (red and underlined), however there were no further 
submissions in relation to this item. 

[238] We accept the ARTIO’s submission and will amend the Road Transport Award 
exposure draft as follows:

‘11.2 Meal and rest breaks after ordinary hours and before overtime hours
…

(e) An employee required to work overtime for two or more continuous hours will be 
entitled to a meal allowance in accordance with clause 13.5(f)(i).’

                                               
201 [2008] AIRCFB 1000 at [50]
202 [2015] FWCFB 6656 at [102]
203 [2015] FWCFB 6656 at [107]
204 [2015] FWCFB 6656 at [110]
205 [2015] FWCFB 6656 at [109]
206 ARTIO submission, 23 November 2016 at p.3






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Item 1E—Allowances

[239] Ai Group submits that clause 13.2–Allowances provides that the allowances at clauses 
13.3(c)-(g) are payable to full-time, part-time and casual employees. However, only ‘weekly 
employees’ are entitled to the allowance in clause13.3(g)(ii).207 Therefore, Ai Group submits 
that clause 13.2 should be amended to reflect this and the ‘easiest way to achieve this may be 
to simply replace the reference to (g) in clause 13.2 with a reference to (g)(ii)’208. No 
submissions in reply were received on this item.

[240] We accept the Ai Group’s submission and will amend the Road Transport Award 
exposure draft as follows:

‘13.2 The allowances at clauses 13.3(c) to (f)(ii), 13.3(g) and 13.5(a) are payable to full-
time, part time and casual employees. In the case of part-time and casual employees, 
they will be calculated as follows:

Item 4—Allowance schedule – CPI category of travelling allowance 

[241] Parties were asked to consider whether the CPI groups contained in schedule D.2.1 
Adjustment of expense related allowances should be changed and whether the following CPI 
groups would be more relevant to these allowances209: 

Allowance Applicable Consumer Price Index figure
Travelling allowance Domestic holiday travel and accommodation 

subgroup
Housing Rents subgroup

[242] The NRTA submits that the allowance adjustment category contained in D.2.1 should 
not be changed. The NRTA submits ‘that following the making of the Full Bench Statement 
in [2009] AIRCFB 980 relating to residual variations to modern awards, PR 994481 dated 16 
March 2010 was issued’210. Paragraph 14 of that Order inserted the relevant current subgroups 
for assessing changes in the value of three expense related allowances at the current CPI 
subgroup in schedule D.2.1, and should not be changed.211 The award should continue with its 
current substantive terms.212

[243] No other submissions were made in reply to the invitation to consider D.2.1. 

[244] We accept the NRTA’s submission. The CPI groups in schedule D.2.1 Adjustment of 
expense related allowances will not be amended.

                                               
207 Ai Group submission, 30 June 2017 at para 29
208 Ai Group submission, 30 June 2017 para 29. The submission contains typographical errors regarding the clause numbers. 

This decision contains the correct clause numbers.
209 Exposure draft – Road Transport Distribution Award 2010, 13 June 2017 at p.61
210 NRTA submission, 29 November 2016
211 Ibid
212 NRTA submission, 28 June 2017






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Alleged NES inconsistency – work on a public holiday

[245] The TWU filed a submission on 31 August 2018213 in relation to clause 28.2(b) of the 
current Road Transport and Distribution Award which deals with work on public holidays. 
The clause is set out as follows:

28.2 Work on public holidays

(b) An employee who, without the consent of their employer or without reasonable 
cause, is absent from work on the day before or the day after a public holiday is not 
entitled to any payment for such public holiday.

[246] The relevant clause in the exposure draft was removed as part of the conference 
process during the award stage of the Review.214

[247] The TWU submit that clause 28.2(b) of the current award should be removed as it is 
inconsistent with the NES.  The TWU submit that the December 2014 decision215 held that 
two identical clauses in the Contract Call Centres Award and the Waste Management Award 
were inconsistent with the NES and were removed. 

[248] The December 2014 decision states the following:

‘Inconsistency with ss.114(1) and 116 – payment for absence on public holiday

[106] Under ss.114(1) and 116, an employee other than a casual employee is entitled to be 
absent from work on a public holiday and to receive his or her base rate of pay for ordinary 
hours falling on the public holiday.

[107] The following modern award provisions are inconsistent with these provisions of the 
NES because they impose the identified impermissible conditions on the public holiday 
entitlement:

(1) Contract Call Centres Award 2010, clause 30.5: removes the entitlement to 
payment for a public holiday where the employee is absent on the working day before 
or after the public holiday without reasonable excuse or the employer’s consent.
(2) Waste Management Award 2010, clause 32.2: removes the entitlement to payment 
for a public holiday where the employee is absent from work on the day before or after 
the public holiday.’

[249] We agree with the submission of the TWU. Clause 28.2(b) of the Award is in the same 
terms as the other two awards dealt with in the December 2014 decision and are clearly 
inconsistent with s.114(1) and 116 of the Act. We will adopt the reasoning of the December 
2014 decision and remove clause 28.2(b) from the current award. A determination will be 
issued shortly. 

2.15 Seafood Processing Award 2010

                                               
213 TWU submission, 31 August 2018
214 See Attachment A of the Report to the Full Bench, 30 November 2015  
215 [2014] FWCFB 9412 at [106] – [107]






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[250] An exposure draft216 for the Seafood Processing Award was published following the
June 2017 statement. ABI & NSWBC217 and Ai Group218 filed submissions in response to the 
June 2017 statement. Ai Group219 and the AMWU220 also filed submissions following the 
October 2016 decision. Items A1, A2, A4 and 1B are typographical errors and are confirmed 
in the summary document as resolved. 221 The exposure draft will be updated to correct these 
errors. 

[251] Items 1A, 3, 4 and 7 have been referred to the Plain Language Full Bench 
(AM2016/15) for determination. Item A3 relates to the list of facilitative provisions and is 
dealt with at paragraphs [8] and [9] of this decision.

[252] Items 1, 2, 5 and 6 remain outstanding. 

Items 1 and 2 – altering the span of hours

[253] Items 1 and 2 are issues that were initially raised by the AMWU which sought 
clarification about clauses 8.2(c) and 13.4 of the exposure draft and altering the span of hours. 
The issues were canvassed in the October 2016 decision where we observed that the word 
‘either’ used in clauses 8.2(c) and 13.4 is ambiguous.222

[254] This issue arises in a number of other exposure drafts and this matter will be given 
final consideration at the conclusion of the award stage. A Statement regarding this issue will 
be published shortly.  

Item 5 and 6 – references to ‘minimum hourly rate’

[255] Ai Group submit that, consistent with the Commission’s earlier decision,223 the words 
“of the minimum hourly rate” should be inserted after the rates appearing in clauses 
14.1(a)(i)-(iii) and 14.4 which consider payment for overtime. 

[256] We agree with Ai Group. The exclusion of these words in the exposure draft appears 
to be a drafting error. The words ‘of the minimum hourly rate’ will be inserted after the rates 
appearing in clauses 14.1(a)(i)-(iii) and 14.4 of the exposure draft. 

[257] There are no other outstanding items relating to this award. 

2.16 Storage Services and Wholesale Award 2010

[258] An exposure draft224 for the Storage Services Award was published following the June 
2017 statement. Ai Group225 and ABI & NSWBC226 filed submissions in response to the June 

                                               
216 Exposure draft, Seafood Processing Award 2015, 13 June 2017
217 ABI & NSWBC submission, 10 July 2017 
218 Ai Group submission, 30 June 2017 
219 Ai Group submission, 14 December 2016; Ai Group submission, 31 August 2016 
220 AMWU submission, 18 November 2016
221 Summary of status – Group 2 Awards – Technical and Drafting Issues at p.26-28
222 [2016] FWCFB 7254 at para [189]
223 [2015] FWCFB 4658 at [95]-[96]






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2017 statement. Business SA,227 Ai Group228 and SDA229 filed submissions following the 
October 2016 decision. In the summary of status document items A1, A2, 1, 2, 2A, 2B, 3 and 
5 were either confirmed as resolved by agreement, determined by a previous Full Bench 
decision or related to minor typographical or cross-referencing errors which have been 
corrected. 230 Item 1A relates to the list of facilitative provisions and is dealt with above at 
paragraphs [8] and [9].

[259] Item 6 has been referred to the Plain Language Full Bench (AM2016/15) for 
determination.

[260] Item 4 remains outstanding. 

Item 4—Summary of monetary allowances

[261] The SDA submits that the dollar figures for the first aid and the cold temperature 
allowances in the exposure draft are incorrect. It appears the SDA’s calculation for these 
allowances were incorrectly based on the 2015 standard rate (being $768.90), instead of the 
applicable 2016 standard rate (being $787.40). In any case, the 2018 standard rate is now 
$841.90. The exposure draft will be updated to reflect the increase in the standard rate. 

2.17 Transport (Cash in Transit) Award 2010

[262] An exposure draft231 for the the Cash in Transit Award was published following the
June 2017 Statement. Ai Group232 filed a submission in response to the June 2017 Statement 
and also filed a submission following the October 2016 decision. 233 In the summary of status 
document item A1 has been referred to the Plain Language Full Bench (AM2016/15) for 
determination. Item 1 has been determined by a previous Full Bench decision and item 1A is
resolved by agreement. 234 Item 4 relates to the list of facilitative provisions and is dealt with 
above at paragraphs [8] and [9].

[263] Items 2 and 3 remain outstanding. 

Item 2—ordinary rate of pay

[264] Ai Group submit that the phrase ‘% of ordinary rate of pay’ should be replaced with 
the words ‘% of ordinary hourly rate’ in the table subheading in Schedule A.2.1. 235

                                                                                                                                                  
224 Exposure draft, Storage Services and Wholesale Award, 13 June 2017 
225 Ai Group submission, 30 June 2017 
226 ABI & NSWBC submission, 10 July 2017 
227 Business SA submission, 9 December 2016
228 Ai Group submission, 14 December 2016 
229 SDA submission, 1 November 2016
230 Summary of status – Group 2 Awards – Technical and Drafting Issues at p.24-26
231 Exposure draft, Transport (Cash in Transit) Award 2015, 13 June 2017 
232 Ai Group submission, 30 June 2017 at paras 41-47
233 Ai Group submission, 14 December 2016 at paras 171-175
234 Summary of status – Group 2 Awards – Technical and Drafting Issues at p.32
235 Ai Group submission, 30 June 2017 at para 44






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[265] We agree with the submission of Ai Group. This is in line with previous Full Bench 
decisions on this point. The exposure draft will be updated accordingly. 

Item 3—Definitions – ordinary hourly rate

[266] Ai Group propose that the phrase ‘specified in clause 11.1’ in the definition of 
‘ordinary hourly rate’ in Schedule F be replaced with ‘prescribed by this award’ on the basis 
that the minimum rates of pay prescribed by clause 11.1 are payable to some but not all 
employees covered by the award. 236 Ai Group note, for example, that an employee 
undertaking a traineeship or an employee to whom the supported wage system applies may be 
entitled to a lower minimum rate of pay. Ai Group contends that in such circumstances, the 
employee’s ‘ordinary hourly rate’ must be calculated by reference to those rates of pay, in lieu 
of the rates prescribed by clause 11.1.

[267] We accept Ai Group’s proposal to replace the words ‘specified in clause 11.1’ with 
‘prescribed by this award’ as it will correct the issue identified. We deal with this issue again 
in relation to the Waste Management Award below at paragraphs [275] – [279]. 

2.18 Waste Management Award 2010

[268] An exposure draft237 for the Waste Management Award was republished following the 
June 2017 Statement. Ai Group238 and the AMWU239 filed submissions in response to the 
June 2017 Statement. Both parties also filed submissions following the October 2016 
decision. 240 In the summary of status document241 item A3 was noted as being determined by 
a previous Full Bench decision and Item 5 relates to minor typographical errors that will be 
corrected in the exposure draft. Items A2, 1, 2 and 6 have been referred to the plain language 
Full Bench (AM2016/15) for determination. Item A1 relates to the list of facilitative 
provisions and is dealt with above at paragraphs [8] and [9] of this decision.

[269] Items 3 and 4 remain outstanding. 

Item 3—Work on public holidays

[270] Ai Group submits that clause 21.5 (previously clause 20.5) of the exposure draft does 
not reflect the parties agreed position. The clause that was inserted into the Waste 
Management Exposure Draft was intended for the RTD Exposure Draft.242

[271] In submissions dated 9 December 2016,243 Ai Group included two annexures. The 
first, Annexure A, was an email dated 2 February 2016 which included a draft clause intended 

                                               
236 Ibid at para 45
237 Exposure draft, Waste Management Award 2015, 13 June 2017 
238 Ai Group submission, 30 June 2017 at paras 48-56
239 AMWU submission, 30 June 2017 at paras 7-8
240 Ai Group submission, 14 December 2016 at paras 176 -186 and AMWU submission, 18 November 2016
241 Summary of status – Group 2 Awards – Technical and Drafting Issues at p.33-34
242 AMWU submission, 30 June 2017 at paras 51-52
243 Ai Group submission, 14 December 2016 at p.45-48






https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014198andors-sub-aig-141216.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014213and216-subs-amwu-300617.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014216-sub-amwu-181116.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014198andors-sub-aig-141216.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014213and216-subs-amwu-300617.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2016209andors-sub-aig-300617.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/exposure-draft-waste-management-revised-130617.pdf


[2018] FWCFB 5986

50

to replace clause 16.2 of the RTD Award exposure draft. The second, Annexure B was an 
email also dated 2 February 2016. This email contained a draft clause intended to replace 20.5 
(now clause 21.5) of the Waste Management Award Exposure Draft.

[272] Ai Group submit there are substantive differences between the proposed clauses and 
that the clause that currently appears at 21.5 of the Waste Management Exposure Draft should 
be replaced with the provision set out at Annexure B of the 9 December 2016 submission. 

[273] The proposed provision outlined at Annexure B of Ai Group’s 9 December 2016 
submission that is to be inserted into the Waste Management Exposure Draft at clause 21.5 is 
as follows:

21.5 Payment for work on public holidays

(a) All time worked by a weekly employee on a public holiday must be paid at 
the following rates, with a minimum payment of four hours:

% of the ordinary hourly rate

Good Friday and Christmas Day 200%

Any other public holiday 150%

(b) Payment for work on public holiday is in addition to any amount payable in 
respect of the weekly wage.

(c) Despite clause 21.5(a) an employee required to work on a public holiday 
during hours which, if the day were not a public holiday, would be outside 
the range of ordinary working time as mentioned in clause 16, will be paid 
for such hours at the following rates:

% of the ordinary hourly rate

Good Friday and Christmas Day 300%

Any other public holiday 250%

(d) Where Christmas Day falls on a Saturday or Sunday and another day is 
observed as a public holiday in accordance with ss. 114-116 of the Act, a 
full-time employee who is regularly rostered to work ordinary hours on a 
Saturday or Sunday will be paid: 

(i) a loading of 50% of the ordinary hourly rate; and

(ii) the Saturday/Sunday rate for all ordinary hours worked on 25 
December with a minimum of four hours pay.








[2018] FWCFB 5986

51

(e) An employee referred to in clause 21.5(d) will also be entitled to the 
substituted public holiday.

(f) Where an employee is entitled to a public holiday but the employer 
requires the employee to work, the employer must notify the employee 
on the preceding working day. Otherwise the employee is entitled to be
absent on the public holiday without deduction of pay.

(g) All time worked by a casual employee on a public holiday must be paid 
at the following rates, with a minimum payment of four hours:

% of the ordinary hourly rate

Good Friday and Christmas Day 325%

Any other public holiday 275%

[274] The provision set out at clause 21.5 of the Waste Management Exposure Draft has 
been inserted in error. We will insert the correct provision set out at paragraph [273] above. 

Item 4—Definitions – ordinary hourly rate

[275] Ai Group proposes amending the definition of ‘ordinary hourly rate’ by replacing the 
words ‘specified in clause 10.1’ with ‘prescribed by this award’.

[276] The definition of ‘ordinary hourly rate’ set out in Schedule F of the exposure draft 
reads as follows:

‘ordinary hourly rate means the hourly rate for an employee’s classification specified in 
clause 10.1, inclusive of the industry allowance’

[277] Ai Group submits that some employees are entitled to a rate of pay that is lower than 
the minimum rate set out in clause 10.1. This includes employees covered by the following 
clauses in the exposure draft:

 10.2 – Junior rates 

 10.3 – Supported wage system

 10.4 –National training wage

[278] The definition of ‘ordinary hourly rate’ was previously determined by the Full Bench 
as follows:

[42] Definitions of ordinary rate of pay have been inserted in the exposure drafts that 
include an allowance or loading that is payable for “all purposes” along the following 
lines (depending on the application of the all purpose allowances):








[2018] FWCFB 5986

52

All purpose provisions Ordinary hourly rate definition

Only all purpose allowance 
is an industry allowance 
applying to all employees

ordinary hourly rate means the hourly rate for 
an employee’s classification specified in 
clause X.1, inclusive of the industry allowance

All purpose allowance(s) 
only applying to some 
employees

ordinary hourly rate means the hourly rate for 
the employee’s classification specified in clause 
X, plus any allowances specified as being 
included in the employee’s ordinary hourly rate 
or payable for all purposes

Industry allowance applying 
to all employees for all 
purposes and other all 
purpose allowance(s) only 
applying to some employees 

ordinary hourly rate means the hourly rate for 
an employee’s classification specified in clause 
X, inclusive of the industry allowance. Where an 
employee is entitled to an additional all purpose 
allowance, this allowance forms part of that 
employee’s ordinary hourly rate

[279] We have decided to accept Ai Group’s proposal to replace the words ‘specified in 
clause 10.1’ with ‘prescribed by this award’ which will correct the issue identified. 

4. Next steps 

Firefighting Award

[280] The outstanding issue dealt with at [33] – [44] relating to ordinary hours of work and 
rostering with be the subject of a conference convened by Justice Ross. 

[281] Interested parties are asked to comment on the provisional view expressed at [61]
regarding overtime provisions for shiftworkers not working on a 10/14 roster. Submissions 
are to be sent to amod@fwc.gov.au no later than 4.00 pm on Wednesday 10 October 2018.

[282] Interested parties are also asked to comment on the issue at [71] relating the rate of 
pay to be paid to an employee while on annual leave. Submissions are to be sent to 
amod@fwc.gov.au no later than 4.00 pm on Wednesday 10 October 2018.

[283] The conference relating to the three outstanding issues in the Firefighting Award will 
be held before Justice Ross at 10.00 am on Wednesday 7 November 2018. A notice of 
listing will be issued shortly. 

Graphic Arts Award

[284] Interested parties are asked to file a written submission regarding the proposed 
definition and the proposed change of any reference from ‘hourly rate’ to ‘ordinary hourly 
rate which is dealt with at [88] – [94].






mailto:amod@fwc.gov.au
mailto:amod@fwc.gov.au


[2018] FWCFB 5986

53

[285] Submissions are to be sent to amod@fwc.gov.au no later than 4.00 pm on 
Wednesday 10 2018.

Health Professionals Award and Horse and Greyhound Training Award

[286] A separately constituted Full Bench will deal with the issues at [109] – [116] and 
[140] – [144] relating to the drafting of the part-time provisions in the Health Professionals 
and Horse and Greyhound Training Award. 

Road Transport (Long Distance Operations) Award 2010 

[287] Interested parties are asked to file a written submission regarding our provisional view 
that clause 12.3(b)(iii) of the exposure draft be deleted from the exposure draft in its entirety. 
This provisional view is set out at paragraph [220] of this decision. Submissions are to be 
filed no later than 4.00 pm on Wednesday 10 October 2018. 

Finalising Exposure Drafts 

[288] All other outstanding matters for Group 2 awards are now resolved or are being dealt 
with by separately constituted Full Benches. 

[289] Each exposure draft will be updated and republished. Parties will be provided with one 
final opportunity to comment on the technical and drafting aspects of the exposure drafts in 
respect of the Group 2 awards. This will not be an opportunity to reargue matters which have 
already been determined, but will provide interested parties with an opportunity to comment 
on variations made to the exposure drafts to incorporate decisions relating to common issues 
and any technical drafting issues determined in this decision. 

[290] A Statement regarding the process for finalising the exposure drafts and concluding 
the award stage of the review will be issued in due course. 

PRESIDENT

Printed by authority of the Commonwealth Government Printer

PR700795






mailto:amod@fwc.gov.au


54

Attachment A—List of Group 2 awards 

Group 2 (19 awards)

Award code Award title Subgroup

MA000092 Alpine Resorts Award 2010 2A

MA000118 Animal Care and Veterinary Services Award 2010 2B

MA000114 Aquaculture Industry Award 2010 2A

MA000110 Corrections and Detention (Private Sector) Award 2010 2D

MA000111 Fire Fighting Industry Award 2010 2D

MA000026 Graphic Arts Award 2010 2A

MA000027 Health Professionals and Support Services Award 2010 2B

MA000008 Horse and Greyhound Training Award 2010 2D

MA000031 Medical Practitioners Award 2010 2B

MA000034 Nurses Award 2010 2B

MA000063 Passenger Vehicle Transportation Award 2010 2C

MA000012 Pharmacy Industry Award 2010 2B

MA000014 Racing Industry Ground Maintenance Award 2010 2D

MA000039 Road Transport (Long Distance Operations) Award 2010 2C

MA000038 Road Transport and Distribution Award 2010 2C

MA000068 Seafood Processing Award 2010 2A

MA000084 Storage Services and Wholesale Award 2010 2A

MA000042 Transport (Cash in Transit) Award 2010 2C

MA000043 Waste Management Award 2010 2C






http://www.fwc.gov.au/documents/modern_awards/award/ma000043/default.htm
http://www.fwc.gov.au/documents/modern_awards/award/ma000042/default.htm
http://www.fwc.gov.au/documents/modern_awards/award/ma000084/default.htm
http://www.fwc.gov.au/documents/modern_awards/award/ma000068/default.htm
http://www.fwc.gov.au/documents/modern_awards/award/ma000038/default.htm
http://www.fwc.gov.au/documents/modern_awards/award/ma000039/default.htm
http://www.fwc.gov.au/documents/modern_awards/award/ma000014/default.htm
http://www.fwc.gov.au/documents/modern_awards/award/ma000012/default.htm
http://www.fwc.gov.au/documents/modern_awards/award/ma000063/default.htm
http://www.fwc.gov.au/documents/modern_awards/award/ma000034/default.htm
http://www.fwc.gov.au/documents/modern_awards/award/ma000031/default.htm
http://www.fwc.gov.au/documents/modern_awards/award/ma000008/default.htm
http://www.fwc.gov.au/documents/modern_awards/award/ma000027/default.htm
http://www.fwc.gov.au/documents/modern_awards/award/ma000026/default.htm
http://www.fwc.gov.au/documents/modern_awards/award/ma000111/default.htm
http://www.fwc.gov.au/documents/modern_awards/award/ma000110/default.htm
http://www.fwc.gov.au/documents/modern_awards/award/ma000114/default.htm
http://www.fwc.gov.au/documents/modern_awards/award/MA000118/default.htm
http://www.fwc.gov.au/documents/modern_awards/award/MA000092/default.htm

Cases cited by this decision: