[2018] FWCFB 6849
The attached document replaces the document previously issued with the above code on
13 November 2018.
Typographical error at [16] corrected: ‘Alternation’ corrected to ‘Alteration’.
Associate to Justice Ross, President
Dated 16 November 2018
1
Fair Work Act 2009
s.156 - 4 yearly review of modern awards
4 yearly review of modern awards – plain language re-drafting – facilitative
provisions altering spread of hours
(AM2016/15)
JUSTICE ROSS, PRESIDENT
VICE PRESIDENT HATCHER
COMMISSIONER HUNT MELBOURNE, 13 NOVEMBER 2018
4 yearly review of modern awards – plain language re-drafting – spread of hours clauses –
remove ambiguity
[1] Section 156 of the Act requires the Fair Work Commission (the Commission) to
review all modern awards every four years (the Review).
[2] This statement concerns a possible ambiguity that has been identified in a facilitative
clause in a number of awards relating to the alteration to the span of ordinary hours by up to
one hour at either end of the spread (the Alteration clause).
[3] An example of the Alteration clause is clause 30.2 in the Food, Beverage and Tobacco
Manufacturing Award 2010:
‘30.2 – Ordinary hours of work – day workers
…
(c) The ordinary hours of work are to be worked continuously, except for meal breaks,
at the discretion of the employer between 6.00 am and 6.00 pm. The spread of hours
(6.00 am to 6.00 pm) may be altered by up to one hour at either end of the spread, by
agreement between an employer and the majority of employees concerned or, in
appropriate circumstances, between the employer and an individual employee.
(emphasis added)’
[4] The use of the word ‘either’ in the Alteration clause can be interpreted as allowing for
the spread of hours (6am to 6pm) to be altered in different ways, for example:
Possible interpretation Application
(example)
Total spread of
hours
Spread may be altered by 1 hour at both
ends to shift entire spread
7am to 7pm 12 hours
5am to 5pm 12 hours
[2018] FWCFB 6849
STATEMENT
E AUSTRALIA FairWork Commission
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000002/default.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000002/default.htm
[2018] FWCFB 6849
2
Possible interpretation Application
(example)
Total spread of
hours
Spread may be altered by up to 1 hour at
only one end to increase spread by 1
hour
6am to 7pm 13 hours
Spread may be altered by 1 hour at both
ends to increase spread by 2 hours
5am to 7pm 14 hours
[5] The Fair Work Ombudsman (FWO) identified the above issue in relation to the
Alteration clause in 7 awards (including Food, Beverage and Tobacco Manufacturing) in
correspondence to the Commission in March 2015. In 2016 a note was inserted into the
exposure drafts identified by FWO referring to the ambiguity in the clause and asking parties
for submissions. A summary of the submissions received is at Attachment A.
[6] During the award stage of the Review, the AMWU submitted that the span of hours
clause in the Pharmaceutical Industry Award 2010 was ambiguous as the word ‘either’ could
be interpreted as allowing the spread of hours to be altered by up to one hour at only one end
of the span, or one hour at both ends of the span. They proposed an amendment to the clause
to insert the words ‘subject to maintaining a 9.5 hours spread’, so it would read as follows:
‘Where the employer and the majority of employees in the affected plant, work section
or sections agree, subject to maintaining a 9.5 hours spread, the spread of hours may
be altered by up to one hour at either end of the spread.’
[7] The Ai Group opposed this variation and submitted that it was a substantive change.
The Ai Group submitted that this issue would arise in a number of awards. The Full Bench
decided to defer consideration of this issue until the conclusion of the award stage of the
Review.
[8] The span of hours ambiguity issue also arose in the Group 2 decision of 10 October
20161 (the October 2016 decision), in relation to the Seafood Processing Award 2010. The
Full Bench in the October 2016 decision decided to defer consideration of the issue until the
conclusion of the award stage of the review noting that:
[9] The Full Bench in the October 2016 decision noted:
‘We would simply observe at this stage that the word “either” as used in clause 8.2(c)
and 13.4 is ambiguous. According to its dictionary definition, it may mean one or both
of two possibilities, depending on the context. For example the definition in the
Macquarie on-line dictionary is as follows:
“adjective 1. one or the other of two: you may sit at either end of the table. 2.
each of the two; the one and the other: there are trees on either side of the river.
–pronoun 3. one or the other; not both: take either; either is correct.”
1 [2016] FWCFB 7254 at [177] – [190]
https://www.fwc.gov.au/documents/decisionssigned/html/2016fwcfb7254.htm
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/AM2014217andors-corr-FWO-020315.pdf
[2018] FWCFB 6849
3
Interested parties should address the issue of ambiguity when the matter arises for
final consideration at the conclusion of the Award stage of the Review.’2
[10] In the Group 3 award stage decision of 13 March 2018 in relation to the Business
Equipment Award 2010, the Full Bench determined that a separate Full Bench would be
constituted to deal with the span of hours ambiguity as it had implications for other awards.3
Further, the AWU4 and the AMWU5 submitted that the Sugar Industry Award 2010 was one
of a group of awards containing similar ambiguous phraseology in relation to the alteration of
the spread of hours which should be dealt with at the conclusion of the award stage of the
Review. The Full Bench held that the issue would be dealt with at the conclusion of the
award stage of the Review6.
Award simplification proceedings
[11] During the Award Simplification proceedings, Senior Deputy President Marsh
considered whether a variation of the Alteration Clause should be included in a new industry
award arising from a review of the Metal Industry Award 1984 and the Graphic Arts –
General – Interim Award 1995.
[12] The decision in relation to the Metal Industry Award 19847, does not assist with the
intended operation of the clause. However, the Alteration Clause was contemplated in more
detail in the Graphic Arts – General – Interim Award 19958 decision. At paragraph [147] of
that decision, Senior Deputy President Marsh found that the Alteration Clause permits an
additional hour to be worked at ordinary time without incurring the penalty or overtime rate,
suggesting a narrow interpretation of the clause should be adopted. This interpretation is
supported by submissions of employer parties in the matter.
[13] Senior Deputy President Marsh noted that she took into account the following
submissions of Mr M Brown (Assistant National Secretary PIAA—Printing Division) stated
on transcript:
‘We would ask your Honour to consider for day workers a majority agreement to extend
the spread of hours one hour at either one or the other end of a day shift – this
provides for a 12 hours spread… (emphasis added). 9
[14] Similarly, Counsel for Ai Group specifically identified the Alteration Clause as one
that permits ‘…the spread of hours over which shifts could be worked to be varied by up to 1
hour, a clearly defined range’.10
2 [2016] FWCFB 7254 at [189] – [190]
3 [2018] FWCFB 1405 at [235]
4 AWU submission dated 28 November 2017
5 AMWU submission dated 28 November 2017
6 [2018] FWCFB 1405 at [192]
7 [Print P9311], 11 March 1998.
8 [Print R7898], 5 August 1999.
9 Graphic Arts – General – Interim Award 1995 [Print R7898], 5 August 1999, para [147]; Transcript from hearing dated 20
May 1999, p. 84.
10 Transcript from hearing dated 6 May 1999, p. 370.
https://www.fwc.gov.au/documents/decisionssigned/html/r7898.htm
https://www.fwc.gov.au/documents/decisionssigned/html/r7898.htm
https://www.fwc.gov.au/documents/decisionssigned/html/p9311.htm
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/2018fwcfb1405.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014247-sub-amwu-281117.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014247-sub-awu-281117.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/2018fwcfb1405.pdf
https://www.fwc.gov.au/documents/decisionssigned/html/2016fwcfb7254.htm
[2018] FWCFB 6849
4
[15] Senior Deputy President Marsh concluded:
‘[142] The requirement to pay a morning shift penalty for an entire shift when an extra
hour’s work is required is in my view a restriction under Item 51(6)(c) because an
efficient allocation of work as access to an early start is inhibited by the obligation to
pay the penalty. The same effect results to a lesser extent from the overtime
requirement. Productivity may be restricted or hindered. In circumstances where an
employee wants to start early fairness to employees is not affected. The evidence
demonstrates that early starts do occur by information agreement.
[143] A wide cross section of awards provide for a facilitative clause under which the
spread of hours may be altered by up to one hour at either end of the shift [eg., Prints
Q6887, Q5897, R0614, R1336, Q0444, N2108, Q5149, Q5884, R1277].
[144] I have given careful consideration to the competing considerations before me
and I repeat the conclusion I reached in Metals:
"I adopt the reasoning in 6.1.1(b) in relation to the potential impact of the
additional flexibility sought by MTIA. It may well be that access to a more
flexible span of ordinary hours meets the needs of particular employees while
achieving greater workplace flexibility. The appropriate safeguards should
ensure arrangements are genuinely agreed to by an employee or the majority of
employees." [Print P9311 p50]
[145] In respect of 6.1.1(b) I stated:
"Under the MTIA provision an employer cannot direct an employee to work
ordinary hours on a Saturday or Sunday ie., it is a facilitative provision
requiring the agreement of the majority of employees or the individual
employee. Having regard to the terms of clause 6.1.1(e) and (f) which provide
for penalty rates for Saturday and Sunday I am satisfied that a proper balance
can be achieved between workplace flexibility and employee responsibilities
and priorities in a way which ensures unfairness to an employee does not
result. The provision, which will be subject to the safeguard in clause 2.2.2
(Facilitation by Individual Agreement) and clause 2.2.3 (Facilitation by
Majority Agreement), will be inserted into the award..."’ [p50]
[146] On the evidence before me in this matter I am satisfied that a case has been
made out pursuant to Item 51(6)(c) to introduce a facilitative clause to vary the span of
hours of day workers.
[147] I make it clear that the introduction of a facilitative clause as sought by the
employers falls within the scope of facilitation decided in ASD. The level of the shift
penalty and the overtime rates is not reduced - the facilitation permits an additional
hour to be worked at ordinary time without incurring the penalty or overtime rate but
only on an agreed basis.’
Next steps
[16] Alteration clauses in substantially the same terms appear in 11 modern awards (see
Attachment B).
[17] The Commission has previously said that this issue will be determined at the
conclusion of the award stage of the Review. This part of the Review is now close to
[2018] FWCFB 6849
5
finalisation. Accordingly, the President has referred this matter to the plain language Full
Bench for determination.
[18] Interested parties are invited to make submissions in relation to the span of hours issue
as well as the list of awards at Attachment B. Submissions are due by 4pm on Friday 30
November 2018.
[19] Submissions in reply must be filed by 4pm on Friday 14 December 2018.
[20] All material should be sent to amod@fwc.gov.au.
[21] This matter will be determined on the papers unless any party requests an oral hearing
by 30 November 2018.
PRESIDENT
Printed by authority of the Commonwealth Government Printer
PR702102
mailto:amod@fwc.gov.au
Attachment A
Award Clause(s)
Current
Award
Clause(s)
Exposure
Draft
Party Summary of view
Aquaculture
Industry Award
2010
20.2 13.2 AWU The AWU submit that the spread of hours can be shifted rather than extended at both ends.
The intent of the provision is for the spread of hours to be shifted e.g. it can be varied by
agreement to be 4am to 6pm or 6am to 8pm.
Business
SA
Business SA submit that the clause provides for expansion of hours ‘at either end’, which means
each end of the spread of ordinary hours can be expanded
Business
Equipment Award
2010
27.2(a) 7.2(a)(i) FWO In correspondence to the Commission, the FWO identifies the ambiguity in the award but does
not provide any substantive submissions on the issue.
Business
SA
Business SA submit that the intent of the clause is to provide flexibility in the workplace. The
phase “at either end” is not restricted. If the intent of the clause was to provide a restriction to
one end of the span, the wording of the clause would read “altered by only one hour in total, at
either end.” Without this clarification, it is Business SA’s view that the intent is for the clause to
be varied at both ends.
ABI ABI submit that the use of the words "at either end" demonstrates that the clause is intended to
allow for the span of hours to be increased at both ends (i.e. for one hour prior to 7.00 am and
one hour after 7.00 pm).
Ai Group Ai Group submit that the provision allows for the spread of hours to be altered by up to one hour
at one or both ends of the spread simultaneously.
Clerks – Private
Sector Award
2010
25.2 8.2(b) FWO In correspondence to the Commission, the FWO identifies the ambiguity in the award but does
not provide any substantive submissions on the issue.
Business
SA
Business SA submit that the intent of the clause is to provide flexibility in the workplace. The
phase “at either end” is not restricted. If the intent of the clause was to provide a restriction to
one end of the span, the wording of the clause would read “altered by only one hour in total, at
either end.” Without this clarification, it is Business SA’s view that the intent is for the clause to
be varied at both ends.
ABI ABI submit that the use of the words "at either end" demonstrates that the clause is intended to
allow for the span of hours to be increased at both ends (i.e. for one hour prior to 7.00 am and
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014217andors-sub-abi-150416.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014217andors-sub-bussa-150416.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/AM2014217andors-corr-FWO-020315.pdf
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000002/default.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000002/default.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000002/default.htm
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014217andors-sub-aig-140416.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014217andors-sub-abi-150416.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014217andors-sub-bussa-150416.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/AM2014217andors-corr-FWO-020315.pdf
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000021/default.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000021/default.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000021/default.htm
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/AM2014200andors-sub-bussSA-280115.pdf
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/AM2014200-sub-AWU-280115.pdf
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000114/default.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000114/default.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000114/default.htm
[2018] FWCFB 6849
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Award Clause(s)
Current
Award
Clause(s)
Exposure
Draft
Party Summary of view
one hour after 7.00 pm).
Contract Call
Centres Award
2010
24.8 8.7(a)(i) FWO In correspondence to the Commission, the FWO identified the ambiguity in the award but did not
provide any substantive submissions on the issue.
CPSU The CPSU submits that the alternative interpretations identified by the FWO are not entirely
accurate. In the union’s opinion, the clause should be seen to have various applications. The
provision does not allow an alteration of the spread of hours from 12 to 14 hours by altering the
spread of hours by an hour at both the beginning and end of the spread of hours. Emphasis needs
to be placed upon the limitation contained in the subclause that the alteration of the hours should
be ‘up to one hour’. Therefore, the provision allows for the spread of hours to be increased (or
decreased) by no more than one hour, or to be shifted in its entirety while retaining a 12 hour
spread. The CPSU notes that if modification of this subclause is required, it would support an
amendment which said the alteration of hours could not make the spread of hours greater than 13
hours or less than 11 hours, avoiding the possibility of the spread being increased to 14 hours.
Note: The issue has been identified in the Exposure Draft, and parties have been asked to provide
submissions on this issue by 4 April 2016, and submissions in reply by 5 May 2016.
Food, Beverage
and Tobacco
Manufacturing
Award 2010
30.2 N/A (not
yet
drafted)
FWO In correspondence to the Commission, the FWO identifies the ambiguity in the award but does
not provide any substantive submissions on the issue.
Hydrocarbons
Industry
(Upstream)
Award 2010
*The issue was
resolved by the
Full Bench in
22.2(b) 8.2(b) AMWU In transcript at PN1017, the AMWU raises concern that the wording of clause 8.2(b) in the
exposure draft does not provide an adequate framework within which the spread of hours can be
altered. In correspondence to the Commission dated 24 November 2014, the union argues that
the award may (incorrectly) be interpreted as allowing for a spread of ordinary hours greater than
the 12 ordinary hours per day specified in clause 8.2(a). It argues that the clause should be
confined to an alteration of the spread of hours while retaining the 12 hour spread, and proposes
that the ordinary hours be limited to an alteration of the spread of hours by one hour at either end.
Accordingly, the AMWU suggests the following wording be inserted into clause 8.2(b): “by one
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/AM201473and80-sub-AMWU-241114.pdf
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/181114AM201472andors.pdf
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000062/default.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000062/default.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000062/default.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000062/default.htm
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/AM2014217andors-corr-FWO-020315.pdf
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000073/default.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000073/default.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000073/default.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000073/default.htm
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/AM201422-sub-CPSU-191115.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/AM2014217andors-corr-FWO-020315.pdf
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000023/default.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000023/default.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000023/default.htm
[2018] FWCFB 6849
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Award Clause(s)
Current
Award
Clause(s)
Exposure
Draft
Party Summary of view
[2015] FWCFB
7236 . (see below
section 5 for
further detail.)
hour at either end. However, the spread of hours cannot be altered so that there would be more
than 12 ordinary hours per day”.11
On 15 May 2015, the AMWU provides detailed submissions in support of its proposed variation.
The organisation argues that the variation proposed is necessary to protect the integrity of the
afternoon and night shift penalties – in that the variation removes the potential interpretation that
the spread of hours can be altered (by agreement) up to the boundaries of where an employee
would become a shiftworker. The AMWU also argues that the variation is required to address the
identified ambiguity (multiple possible interpretations) and provide clarity regarding the
intention of the provision. The union refers to the modern award objectives in support of its
proposal.
AWU In correspondence to the Commission, the AWU confirms its support for the variation proposed
by the AMWU and reiterates their point that it is inappropriate for a modern award to provide
that the spread of day work ordinary hours can be varied without restriction on an individual
basis.
Ai Group In detailed reply submissions, the Ai Group addresses the points raised in the AMWU
submissions dated 15 May 2015. The organisation submits that the application of clause 22.2(b)
does not give rise to an anomaly. It suggests that the AMWU have confused certain concepts,
such as shiftworkers as opposed to employees working flexibly, and that the union has failed to
satisfy the relevant statutory criteria required to establish that a significant variation is necessary
to ensure the award achieves the modern award objectives. Further, the Ai Group argues that the
provision is not ambiguous. The Ai Group submits that subclause 22.2(b) is facilitative in nature,
as it enables employees and employers to reach agreement to alter the spread of hours set in
clause 22.2(a). There are no parameters set around the extent to which the spread may be varied.
The lack of temporal qualifications does not necessitate that the provision is ambiguous, and the
proposed variation is therefore not required to clarify the meaning of the subclause.
11 As amended in correspondence to the Commission dated 25 November 2014 (to correct a typographical error).
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/AM201473and80-corr-AMWU-251114.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/AM201473-replysub-AiG-260514.pdf
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/AM201473-corr-AWU-180515.pdf
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/AM201473-sub-AMWU-150515.pdf
https://www.fwc.gov.au/documents/decisionssigned/html/2015FWCFB7236.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2015FWCFB7236.htm
[2018] FWCFB 6849
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Award Clause(s)
Current
Award
Clause(s)
Exposure
Draft
Party Summary of view
Manufacturing
and Associated
Industries and
Occupations
Award 2010
36.2(c)
37.2
13,2(c)
29.2(b)
AMWU The AMWU submits that the extension of the spread of ordinary hours at either end of the spread
is not intended to provide for a 13 or 14 hour spread, but is to allow the hour at which the 12
hour ordinary spread commences or finishes be altered by up to one hour. The AMWU relies on
a decision12 of SDP Marsh during the Award Simplification proceedings to suggest the intention
of the provision was to provide flexibility in the start and finish time of the spread of hours – not
to provide for a longer spread overall. Accordingly, in its proposed variations, the AMWU
amends the spread of ordinary hours clause to be “subject to maintaining a 12 hour spread”.
ABI and
NSW
Business
Chamber
In submissions in reply, the ABI and NSW Business Chamber submit that the spread of ordinary
hours allows employees to work up to 12 ordinary hours per day.
FWO In correspondence to the Commission, the FWO identifies the ambiguity in the award but does
not provide any substantive submissions on the issue.
Pharmaceutical
Industry Award
2010
*The Full Bench
delayed
determining the
issue until the
conclusion of the
review in [2015]
FWCFB 7236
(see below
23.2(b) 8.2(c) AMWU The AMWU submits that the provision is ambiguous in that the word “either” could be
interpreted as allowing the spread of hours to be altered by up to one hour at only one end of the
spread, or one hour at both ends of the spread. The AMWU relies on a decision of SDP Marsh
during the Award Simplification proceedings to suggest the intention of the provision was to
provide flexibility in the start and finish time of the spread of hours – not to provide for a longer
spread overall. The union argues their interpretation is consistent with the role of facilitative
provisions to avoid diminishing employee entitlements and to enable agreement regarding the
implementation of entitlements within a defined scope. As such, the AMWU proposed correcting
the ambiguity by inserting the words “subject to maintaining a 9.5 hours spread”. In its
submissions about the revised exposure draft, the AMWU reiterates its claim that given the
ambiguity inherent in clause 8.2(c), the clause should be amended to ensure clarity in accordance
with modern award objectives.
12 Metal Industry Award 1984 - Part 1 [Print P9311], 11 March 1998.
https://www.fwc.gov.au/documents/decisionssigned/html/p9311.htm
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/AM201481and82-sub-AMWU-191115.pdf
https://www.fwc.gov.au/search/documents/results?query=P9311&indexes%5b0%5d=1&start=0&page=0&keys=P9311&sort=score&order=asc&filename=/documents/decisionssigned/html/P9311.htm
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/AM201481-sub-amwu-251114.pdf
https://www.fwc.gov.au/documents/decisionssigned/html/2015FWCFB7236.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2015FWCFB7236.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000069/default.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000069/default.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000069/default.htm
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/AM201465andors-sub-FWO-090514.pdf
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/AM201467andors-sub-ABINSWCB-141114.pdf
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/AM201475-corr-AMWU-190814.pdf
https://www.fwc.gov.au/search/documents/results?query=P9311&indexes%5b0%5d=1&start=0&page=0&keys=P9311&sort=score&order=asc&filename=/documents/decisionssigned/html/P9311.htm
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/AM201475-sub-AMWU-241014.pdf
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000010/default.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000010/default.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000010/default.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000010/default.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000010/default.htm
[2018] FWCFB 6849
10
Award Clause(s)
Current
Award
Clause(s)
Exposure
Draft
Party Summary of view
section 5 for
further detail).
Ai Group In transcript from a hearing on 28 November 2014, the Ai Group raises concern that in altering
the spread of hours at either end of the spread, the spread of hours could be shortened instead of
being extended (PN61). In further submissions, it contends the issue is a substantive one, and
opposes the variation sought by the AMWU. This position is reiterated in its submissions in
reply.
Seafood
processing Award
2010
23.2(c) 8.2(c)
13.4
AMWU The AMWU submits that clarification is required that while the spread of hours can be changed,
its duration cannot. The union recommends amending subclause 8.2(c) by inserting ‘but may not
be altered to increase the spread of hours beyond 12 hours a day’ immediately following ‘either
end of the spread’. The union also recommends amending clause 13.4 by inserting the following
at the end of the existing text: ‘but not both’.
In reply submissions, the AMWU considers the matter to be substantive. Given that a similar
application has been made in respect of the Hydrocarbons Industry (Upstream) Award 2010, the
union believes the issue should be re-examined once a determination has been made in the
Hydrocarbons matter.
AWU In reply submissions, the AWU agrees that the duration of the spread of hours cannot be
extended.
Ai Group In reply submissions, the Ai Group opposes the AMWU’s proposal to vary the provision. The
party argues that the proposal is tantamount to a substantive change rather than clarification of
the operation of the provision. The current terms of the award do not preclude the extension of
the spread of hours beyond 12 hours.
In further reply submissions, the Ai Group strongly opposes the variation sought. It agrees with
the AMWU that the issue is substantive and that consideration of the matter should be deferred
until the Commission issues its decision with respect to the Hydrocarbons Industry (Upstream)
Award 2010 (despite there being subtle differences between the two provisions). Nonetheless, the
Ai Group notes the following in relation to the matter:
It disagrees with the AMWU’s ‘erroneous’ suggestion that the clause prohibits a spread greater
than 12 hours. There is no such requirement, whether express or implied. The plain and ordinary
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/AM2014198andors-sub-AIG-280815.pdf
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/AM2014198andors-sub-AIG-040315.pdf
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/AM2014213-replysub-AWU-180215.pdf
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/AM2014213-sub-amwu-210715.pdf
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/AM2014213-sub-AMWU-280115.pdf
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000068/default.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000068/default.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000068/default.htm
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/AM201475andors-sub-aig-071215.pdf
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/AM201475andors-sub-aig-071215.pdf
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/AM201481-sub-AiG-151214.pdf
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/281114AM201481.pdf
[2018] FWCFB 6849
11
Award Clause(s)
Current
Award
Clause(s)
Exposure
Draft
Party Summary of view
meaning of the clause is clear, in that the spread of hours may be altered by up to one hour at
either end of the spread, enabling a variation by one hour or less, at the commencement of the
spread, the conclusion of the spread, or both. There is no requirement that the spread be 12 hours
in length. The party contends that the AMWU’s interpretation would significantly restrict a
current flexibility that is available under the award, which would disadvantage all concerned.
There is tension between the AMWU’s proposal and the operation of clause 23.5 of the award,
which deals with the arrangement of ordinary working hours. Specifically, subclause 23.5(c)
contemplates the implementation of days or shifts that are 12 ordinary hours in length subject to
various conditions, such as the provision of an additional meal break. However, an employee
cannot work a 12 ordinary hour day within a 12 hour spread if they must also take a meal break
that does not count as time worked. This suggests the clause should not be interpreted as
contemplated by the AMWU, as to do so would run contrary to the clear intention of clause
23.5(c) and would remove a flexibility that is essential to business operations in the industry.
The Commission has determined that the four yearly review is to proceed on the basis that
modern awards achieve the modern awards objectives when they were made. When this award
was made, it contained the very provision that is the source of the controversy in these
proceedings. Therefore, it is for the AMWU to establish that a departure from the current terms is
necessary to ensure that the award continues to achieve the modern award objective.
The proposed variation runs contrary to a number of modern award objectives under s.134(1),
including the need for collective bargaining; the need to promote flexible modern work practices
and the efficient and productive performance of work; the likely impact of any exercise of
modern award powers on business including on productivity, employment costs and the
regulatory burden; and the need to ensure a simple, easy to understand, stable and sustainable
modern award system for Australia that avoids unnecessary overlap of modern awards.
Business
SA
In reply submissions, Business SA opposes the AMWU’s proposal to vary the clause. Business
SA submits that the proposed insertion of the words ‘but may not be altered to increase the
spread of hours beyond 12 hours a day’ constitutes a significant change as it may prevent the
spread of hours beyond 12 hours.
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/AM2014200-subgrp2Aand2B-BSA-050315.pdf
[2018] FWCFB 6849
12
Award Clause(s)
Current
Award
Clause(s)
Exposure
Draft
Party Summary of view
ABI &
NSWBC
In reply submissions, the organisations do not support the submissions made by AMWU as they
are not consistent with the current award provisions. In further reply submissions, the
organisations agree with the AMWU’s submission of 21 July 2015 that the matter is substantive
and should therefore be dealt with after the Hydrocarbons Industry (Upstream) Award 2010
application has been determined.
Storage Services
and Wholesale
Award 2010
22.2 8.2
15.2
AWU The AWU relies on the submissions made by the AMWU in relation to the exposure draft of the
Manufacturing and Associated Industries and Occupations Award 2010 dated 29 October 2014,
and submits the word ‘either’ means ‘one or the other; not both’. To remove any ambiguity, the
AWU proposes amending the clause to state:
Subject to maintaining a 10.5 hours spread, the spread of hours may be altered by up to one
hour at either end of the spread, but agreement between an employer and the majority of
employees covered or between the employee and the employer.
In later submissions, the AWU contend that the word ‘either’ permits the expansion of the spread
of hours at one end or the other end, and not both. The union refers to the Concise Macquarie
Dictionary, which defines the word ‘either’ as ‘one or the other; not both’.
SDA The SDA submits that a narrow interpretation should be adopted in that the clause (in using the
word ‘either’ as opposed to ‘both’) provides that the spread of hours can be altered at one or the
other end but not both.
In later submissions, the SDA elaborates and argues that when read with the facilitative
provisions, it is clear there is no intent to permit an increase in the daily spread of hours. Use of
the word ‘altered’ instead of the word ‘increased’ is instructive – ‘altered’ suggests that the
spread of hours may be shifted but not necessarily increased. Further, facilitative provisions are
not mechanisms to reduce entitlements of employees. The SDA refer to the Graphic Arts
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000026/default.htm
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/AM2014214-sub-SDA-150715.pdf
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/AM2014214-sub-SDA-280115.pdf
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/AM2014214-sub-AWU-150715.pdf
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/AM2014214-sub-AWU-280115.pdf
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000084/default.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000084/default.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000084/default.htm
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/AM2014213-replysub-ABINSWBC-210815.pdf
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/AM2014203andors-sub-ABINSWBC-050315.pdf
[2018] FWCFB 6849
13
Award Clause(s)
Current
Award
Clause(s)
Exposure
Draft
Party Summary of view
Printing and Publishing Award 2010 as a point of contrast with respect to the spread of hours
provision.
NUW In its submissions, the NUW supports the submissions of the AWU that that spread can be
altered at one or the other end of spread, but not both.
Ai Group The Ai Group submits that the words of the clause do not suggest that the other end of the spread
must be shifted to maintain a spread of 10.5 hours. In other words, the clause permits expansion
of the spread of hours at either end. The Ai Group argues that clause 8.1(d) (which provides that
an employee may work up to 10 ordinary hours in a day) supports their interpretation of clause
8.2. Clause 8.1(d) enables an employer, by agreement with the employee(s), to stagger working
days of up to 10 ordinary hours in length for different employees over a possible spread of 12.5
hours. This flexibility is essential to business operations in the industry and needs to be
maintained.
The Ai Group further submits that the SDA’s submissions and the AWU’s proposal are opposed.
The award, as currently drafted, does not require the maintenance of a 10.5 hour spread. The
variation proposed by the AWU is a substantive one that would introduce a significant
inflexibility, and is therefore contrary to the modern awards objective (ss.134(2)(d) and (f) of the
Act).
AFEI The AFEI submits that it would be an unreasonable reading of the facilitative provision to restrict
its operation by adopting a narrow construction. Rather, a fair reading of the clause is one which
maximises its potential for both employers and employees, particularly given the facilitative
provisions in the award and the protection provided through the requirement that any changes to
the spread be by agreement. Accordingly, the AFEI submits that the SDA have mischaracterised
the effect of the facilitative provision as one which strips away entitlements. Therefore, it is the
AFEI’s view that the spread of hours may be extended at each end, and that no change is
required.
Like the SDA, the AFEI also relies on the Graphic Arts Printing and Publishing Award 2010 as
a point of contrast with respect to the spread of hours provision – noting that if it were the
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000026/default.htm
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/AM2014199andors-sub-AFEI-010915.pdf
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/AM2014198andors-sub-AIG-040315.pdf
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/AM2014198andors-sub-AiG-280115.pdf
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/AM2014214-sub-NUW-160215.pdf
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000026/default.htm
[2018] FWCFB 6849
14
Award Clause(s)
Current
Award
Clause(s)
Exposure
Draft
Party Summary of view
intention that the Storage Services and Wholesale Award 2010 be construed narrowly then it
would have been expressly framed as such.
Business
SA
Business SA submits that the clause refers to the expansion of hours at ‘either end’, meaning
each end of ordinary hours can be expanded. Business SA supports the Ai Group and AFEIs’
submissions on this matter.
ABI &
NSWBC
In reply submissions, the organisations note that the ambiguity results from the varied meanings
of the word ‘either’, which could be taken to mean ‘both’, or conversely, ‘one or the other’. ABI
and NSWBC do not agree with the SDA that the provisions allow the spread of hours to be
shifted by one hour at only one end of the spread without increasing/decreasing the hours. If the
number of hours in the spread of hours is to be maintained, the spread of hours must be shifted at
both ends.
The organisations submit that the word ‘either’ in this context should be interpreted to allow the
variation of the spread of hours at both ends of the spread, and make reference to the Macquarie
Concise Dictionary in support of their view. The ABI and NSWBC suggest that to adopt the
narrow interpretation suggested by the SDA and the AWU would be to introduce a significant
inflexibility affecting both employers and employees, and ignores the protection offered by
virtue of the clauses operating by agreement and only in relation to the spread of ordinary hours.
In the alternative, the organisations submit that the clause should be understood to allow the
extension of the spread of ordinary hours at the beginning or the end of the spread.
FWO In correspondence to the Commission, the FWO identifies the ambiguity in the award but does
not provide any substantive submissions on the issue.
Sugar Industry
Award 2010
29.3(c) 11.3(c) AWU Parties agreed on the following clause:
(c) Altering the spread of hours
(i) The ordinary hours of work are to be worked continuously, except for meal breaks, at the
discretion of the employer. The spread of hours may be altered by up to one hour at either end of
the spread by agreement between an employer and the majority of employees concerned or, in
appropriate circumstances, between the employer and an individual employee.
(ii) Where the spread of hours is altered in accordance with sub clause 11.3(c)(i), work outside
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000087/default.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000087/default.htm
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/AM2014198andors-corr-FWO-241114.pdf
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/AM2014214-sub-ABI-210815.pdf
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/AM2014200andors-sub-bussSA-280115.pdf
[2018] FWCFB 6849
15
Award Clause(s)
Current
Award
Clause(s)
Exposure
Draft
Party Summary of view
the hours of 6.00 am to 6.00 pm will be paid at overtime rates and will be deemed to be part of
the ordinary hours of work for the purposes of clause 11—Ordinary hours of work and
rostering—other than shiftworkers.
AWU submission dated 28 November 2017 noted that this would be dealt with at the conclusion
of the Review.
AMWU AMWU submission dated 28 November 2017 states that ‘this is one of a group of Awards
containing similar ambiguous phraseology in relation to the alteration of the spread of hours.
This Award should be considered at the conclusion of the Award stage of the Review in
accordance with the decision of the Full Bench [2015] FWCFB 7236 at [159].’
Vehicle
Manufacturing,
Repair, Services
and Retail Award
2010
53.1(c) 40.1(c) AMWU The AMWU’s view is that the intent of the provision is for the spread of hours to be shifted e.g.
it can be varied by agreement to be 4am to 6pm or 6am to 8pm. Therefore, in its draft
determination, the AMWU seek the following variation to clause 53.1(c) of the original award by
removing the words ‘either end’ and inserting ‘only one end’.
However, in later submissions dated 25 March 2015, it is noted that the proposed variation is not
being pursued by the AMWU at this time – with a caveat that the union reserves its right to
pursue the variation pending the outcome of further discussions by the parties.
MTA In submissions, the MTA notes the AMWU’s original request for a variation to clause 53.1(c),
and agrees that this is a leave reserved matter and may lead to further discussions between the
parties.
FWO In correspondence to the Commission, the FWO identifies the ambiguity in the award but does
not provide any substantive submissions on the issue.
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/AM201465andors-sub-FWO-090514.pdf
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/AM201493-sub-MTAandors-010415.pdf
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/AM201493-sub-AMWU-250315.pdf
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/AM201493-draftdets-AMWU-300514.pdf
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000089/default.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000089/default.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000089/default.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000089/default.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000089/default.htm
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014247-sub-amwu-281117.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014247-sub-awu-281117.pdf
[2018] FWCFB 6849
16
List of abbreviations
ABI & NSWBC Australian Business Industrial and the New South Wales Business Chamber Ltd.
AFEI Australian Federation of Employers and Industries
Ai Group Australian Industry Group
AMWU “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’
Union (AMWU)
ASU Australian Municipal, Administrative, Clerical and Services Union
AWU The Australian Workers’ Union
CPSU The Community and Public Sector Union
FWO Fair Work Ombudsmen
MTA Motor Traders’ Association of New South Wales, Motor Trade Association of South Australia, Motor Trade Association of West
Australia, and the Victorian Automobile Chamber of Commerce
NUW National Union of Workers
SDA Shop, Distributive & Allied Employees’ Association
17
ATTACHMENT B
List of awards containing a clause allowing for altering the span of hours.
Aquaculture Industry Award 2010
Business Equipment Award 2010
Clerks – Private Sector Award 2010
Contract Call Centres Award 2010
Food, Beverage and Tobacco Manufacturing Award 2010
Manufacturing and Associated Industries and Occupations Award 2010
Pharmaceutical Industry Award 2010
Seafood Processing Award 2010
Storage Services and Wholesale Award 2010
Sugar Industry Award 2010
Vehicle Manufacturing, Repair, Services and Retail Award 2010
https://www.fwc.gov.au/documents/modern_awards/award/MA000089/default.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000087/default.htm
https://www.fwc.gov.au/awards-and-agreements/modern-award-reviews/4-yearly-review/award-stage/award-review-documents/MA000084?m=AM2014/214
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000068/default.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000069/default.htm
https://www.fwc.gov.au/awards-and-agreements/modern-award-reviews/4-yearly-review/award-stage/award-review-documents/MA000010?m=AM2014/75
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000073/default.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000023/default.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000002/default.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000021/default.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000114/default.htm
