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, 23 NOVEMBER 2018
4 yearly review of modern awards – award stage – exposure drafts – technical and drafting
issues – Group 2 awards – outstanding issues.
[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 small number of outstanding technical and drafting issues arising out of Group 2
of the Award stage.
[2] This is the third decision dealing with the technical and drafting issues in the awards in
Group 2 and should be read in conjunction with the decisions issued on 10 October 20161 (the
October 2016 decision) and 26 September 20182 (the September 2018 decision). Following
the September 2018 decision there were outstanding issues in the following awards:
Graphic Arts, Printing and Publishing Award 2010
Health Professionals and Support Services Award 2010
Road Transport (Long Distance Operations) Award 2010
Road Transport and Distribution Award 2010
Graphic Arts, Printing and Publishing Award 2010 (the Graphic Arts Award)
[3] After the September 2018 decision there was one outstanding issue remaining in
relation to the Graphic Arts Exposure Draft concerning the definition of the term ‘ordinary
hourly rate’. We dealt with this issue at paragraphs [88] – [94] of the September 2018
decision, and outlined the preliminary view that all instances of the phrase ‘hourly rate’ in the
exposure draft would be changed to ‘ordinary hourly rate’ and the following definition be
inserted into the exposure draft:
1 [2016] FWCFB 7254
2 [2018] FWCFB 5986
[2018] FWCFB 7210
DECISION
E AUSTRALIA FairWork Commission
https://www.fwc.gov.au/documents/decisionssigned/html/2018fwcfb5986.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2016fwcfb7254.htm
[2018] FWCFB 7210
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‘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’
[4] Two submissions were received in relation to the Graphic Arts Award, one from Ai
Group3 and one from ABI4. ABI does not oppose the preliminary view of the Commission to
insert the definition of ordinary hourly rate (set out in paragraph [93] of the September 2018
decision).
[5] Ai Group made a detailed submission regarding the ordinary hourly rate issue, which
also deals with an issue relating to payment of wages and overtime, penalties and public
holidays (which was determined at paragraphs [79] – [87] of the September 2018 decision.
[6] In the September 2018 decision, we decided that references to the terms ‘time and a
half’, ‘double time’, and ‘double time and a half’ in a number of clauses in the exposure draft,
which reflect the current award, would be maintained. The relevant clauses of the exposure
draft are as follows:
Clause 18.5
Clause 24.2(b)
Clause 24.3(a)
Clause 24.3(b)
Clause 24.4
Clause 31.3
Clause 31.4
[7] We adopted this course because we did not wish to introduce a new term or reference
rate as this risked increasing the already complex nature of these provisions. Nor was it our
intention to change entitlements as part of the drafting and technical stage of the Review
process.
[8] In the September 2018 decision in relation to this issue we said the following:
‘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.’
[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)
3 Ai Group submission, 12 October 2018
4 ABI submission, 15 October 2018
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/201633-sub-abinswbc-151018.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014203-sub-aig-121018.pdf
[2018] FWCFB 7210
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[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 31.4, 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. The AMWU and
Printing Industries Association of Australia (IPAA) sought to retain the current wording in the
award. ABI was not opposed to changing the overtime amounts to percentages.
[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 2015 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”.
[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 said 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 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
[2018] FWCFB 7210
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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.’
[9] In their submission of 12 October 2018, Ai Group refer to the clauses outlined at [5]
above as the ‘impugned clauses’ and submit that they are not confined in their application to
the performance of overtime by shiftworkers. In other words, they also apply to day workers.
Ai Group submit:
‘We are concerned that by maintaining the references to ‘time and a half’, ‘double time’ and
‘double time and a half’ in the Exposure Draft, the Impugned Clauses may lend themselves to
being interpreted to require the payment of an amount other than what is required by the
Award during the performance of ordinary hours and/or in relation to employees performing
daywork. This is particularly so in circumstances where the Exposure Draft uses different
terminology (i.e. the term ‘ordinary hourly rate’) in a number of other provisions.’5
[10] Ai Group further submit they are concerned that our decision ‘may inadvertently
create uncertainty about how the impugned clauses apply to specific categories of employees
or in certain circumstances and as a result, give rise to disputation as to their proper
interpretation in such circumstances.’6
[11] Ai Group then go on to submit that the definition of ordinary hourly rate which we
outlined at [93] of the September 2018 decision be amended as follows:
‘ordinary hourly rate means the hourly rate for the employee’s classification prescribed by the
award specified in clause 8.2, plus any allowances specified as being included in the
employee’s ordinary hourly rate or payable for all purposes’7
[12] Ai Group further submit that the impugned clauses should be amended such that they
required the calculation of the relevant penalty:
a) on a rate that includes the shift allowances prescribed by clause 21.3 of the
Exposure Draft; and
b) on the ‘ordinary hourly rate’ in all other circumstances.8
[13] Ai Group note that in the time frame they have not developed or proposed
amendments to each of the impugned clauses.
[14] In light of the detailed submission made by Ai Group we propose to give all interested
parties an opportunity to comment on the submission made by Ai Group. We will also
provide Ai Group a further opportunity to file a written submission outlining their proposed
amendments to each of the impugned clauses. All submissions in respect of these issues are to
be filed by no later than 4.00pm on Monday 10 December 2018.
5 Ai Group submission, 12 October 2018 at 9
6 Ai Group submission, 12 October 2018 at 13
7 Ai Group submission, 12 October 2018 at 18
8 Ai Group submission, 12 October 2018 at 22
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014203-sub-aig-121018.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014203-sub-aig-121018.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014203-sub-aig-121018.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014203-sub-aig-121018.pdf
[2018] FWCFB 7210
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[15] The issues raised by Ai Group will be the subject of a conference before the President
at 10am on 20 December 2018 in Sydney. If the issues are not resolved at the conference they
will be determined on the papers, absent any request for an oral hearing. Any such request
must be made by no later than 4pm on Thursday 20 December 2018.
Health Professionals and Support Services Award 2010 (the Health Professionals Award)
[16] In response to the summary of submissions document that was published on the
Commission’s website on 13 September 2018 a submission was received from the
Chiropractor’s Association of Australia (National) Ltd (CAA) on 26 September 2018 dealing
with a number of technical and drafting issues which the CAA say were previously referred to
in their submissions which do not appear in the summary of submissions.
[17] The CAA note that it shares the view held by the Fair Work Ombudsman that the
Health Professionals Award does not clearly identify when overtime and other penalties
apply.9 It appears that the CAA are referring to an older version of the summary of
submissions document that was published by the Commission in June 2016.
[18] The CAA also submits that there is confusion with:
the way the term “ordinary hours” is used interchangeably throughout the HPSS
Award; and
whether or not the shiftwork loading is to be applied on a shift by shift basis, or
whether it is applicable to all hours worked by the shiftworker and/or whether the
loading is paid for the entire shift.
[19] The CAA submits that the above issues should remain in the summary of technical and
drafting issues.
[20] The issues highlighted by the CAA were the subject of an extensive conference
process conducted before Commissioner Roe in 2016 and were the subject of numerous
reports issued by the Commissioner.10 The issues were then dealt with in the October 2016
decision11 and outstanding matters were subsequently referred to a separate Full Bench to hear
and determine.
[21] The recent summary document referred to in CAA’s submission was published prior
to the September 2018 decision to assist with identifying the outstanding issues in relation to
each exposure draft in Group 2. The issues referred to by the CAA were not included in the
summary document as they have already been dealt with extensively and are not considered
‘outstanding’. It was never intended that the summary document be updated by the
Commission following the September 2018 decision, rather exposure drafts will be updated
and parties would be afforded one final opportunity to comment on the variations made to the
exposure draft to incorporate the decision.
9 See Item 26 summary of submissions document dated 21 June 2016
10 See Reports dated 30 October 2015, 27 November 2015, 5 January 2016 and 26 April 2016
11 [2016] FWCFB 7254 at [97] – [102]
https://www.fwc.gov.au/documents/decisionssigned/html/2016fwcfb7254.htm
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014204-sub-summary-210616.pdf
[2018] FWCFB 7210
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[22] We do not propose to take any further action in response to CAA’s submission.
[23] In the September 2018 decision we noted there was a substantive issue relating to
overtime rates that would be referred to the Full Bench in AM2016/31. The issue relates to the
wording of clause 19.1 of the exposure draft, which deals with overtime payments. Ai Group
requested that the matter be determined by a separate Full Bench as it was substantive in
nature.
[24] The hearings in this matter have been finalised and a decision reserved, therefore it is
not practical that this bench deal with that issue. The issue will be referred to the Full Bench
that will be constituted to deal with an issue relating to the part-time employment clause in the
Health Professionals Award and the Horse and Greyhound Training Award (referred to at
paras [109] – [116] of the September 2018 decision).
Road Transport (Long Distance Operations) Award 2010 (the RT (LDO) Award)
[25] Following the September 2018 decision there was one outstanding issue in the Road
Transport (Long Distance Operations) Award 2010 relating to the articles of clothing
allowance. We outlined a provisional view in the September 2018 decision that clause
12.3(b)(iii) be deleted from the exposure draft in its entirety as it appeared that the rationale
for this clause in the exposure draft (and clause 14.2(b)(iii) in the current award) is unclear.12
Interested parties were asked to provide a written submission relating to our provisional view.
[26] One submission was received from the National Road Transport Association, noting
that they did not oppose the deletion as outlined by the Full Bench.13 No other submissions
were received. We confirm our provisional view. Clause 12.3(b)(iii) will be deleted from the
exposure draft.
Road Transport and Distribution Award 2010
[27] In a decision issued on 30 September 201514 the Commission determined the general
approach to be taken to casual loadings in all exposure drafts. In particular, in the case of
awards which contain one or more ‘all purpose’ allowances the casual loading will be
expressed as 25% of the ordinary hourly rate. The Full Bench stated that the preferable
approach to any concerns as to whether certain allowances currently expressed as ‘all
purpose’ would be at a higher rate for casual employees (due to the compounding effect of the
casual loading), was to permit reconsideration, on an award by award basis, about whether
any existing allowance should retain its ‘all purpose’ designation or be paid on a different
basis.
[28] The RTD Exposure draft contains an all purpose allowance. Clause 13.3(a) states that
special vehicle allowances is ‘paid for all purposes under this award.
[29] In the September 2018 decision we canvassed this issue (at [228]-[236]) and said (at
[236]):
12 [2018] FWCFB 5986 at [216] – [219]
13 National Road Transport Association submission, 10 October 2018
14 [2015] FWCFB 6656
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014211-sub-natroad-101018.pdf
https://www.fwc.gov.au/documents/decisionssigned/html/2018fwcfb5986.htm
[2018] FWCFB 7210
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‘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.’
[30] No further submissions relating to this issue have been received. Absent any
application to vary the all purpose designation of special vehicle allowances in the RTD
Award the casual loading in the RTD Exposure Draft will be expressed as 25% of the
ordinary hourly rate. Any application to vary this provision must be made by 4pm on
Monday 3 December 2018. Any such application will be regarded as a substantive claim and
will be referred to a separate Full Bench.
NEXT STEPS
[31] The issues raised by Ai Group in relation to the Graphic Arts Exposure Draft will be
the subject of a conference before the President at 9.30am on 20 December 2018 in Sydney.
All submissions in respect of these issues are to be filed by 4pm on Monday 10 December
2018. If the issues are not resolved at the conference they will be determined on the papers,
absent any request for an oral hearing. Any such request must be made by no later than 4pm
on 20 December 2018.
[32] Submissions should be sent to amod@fwc.gov.au.
[33] All outstanding technical and drafting issues for the remaining Group 2 awards have
now been resolved or are being dealt with by separately constituted Full Benches.
[34] 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.
[35] 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
PR702621
mailto:amod@fwc.gov.au
[2018] FWCFB 7210
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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
