1
Fair Work Act 2009
s.156—4 yearly review of modern awards
4 yearly review of modern awards—Plain language re-drafting—General
Retail Industry Award 2010
(AM2016/15)
JUSTICE ROSS, PRESIDENT
VICE PRESIDENT HATCHER
COMMISSIONER HUNT MELBOURNE, 18 JANUARY 2019
4 yearly review of modern awards – plain language re-drafting – General Retail Industry
Award 2010.
[1] This decision finalises outstanding items in the plain language re-drafting of the
General Retail Industry Award 2010 (the Retail Award).
[2] Conferences were held on 19 September 2017, 26 October 2017, 21 June 2018 and
27 September 2018 to discuss items raised by parties in relation to the plain language
exposure draft of the Retail Award (the Retail PLED). A report was issued on 19 September
20171 setting out the status of items following the September 2017 conference and statements
regarding the outcomes of the subsequent conferences were issued on 27 October 2017,2 23
July 20183 and 1 October 2018.4
[3] A decision published on 8 November 20185 resolved the outstanding items; however,
interested parties were invited to review the overtime clause and to make further submissions.
It was also noted that the Shop, Distributive and Allied Employees Association (the SDA) has
reserved its position to review the Retail PLED in its entirety,6 considering that changes may
arise from the Overtime for Casuals common issue. A revised Retail PLED (the revised
PLED) was published on 20 November 2018.7
[4] Correspondence and submissions were received from the following parties in relation
to clause 24—Overtime:
1 Report, 19 September 2017.
2 [2017] FWC 5589.
3 [2018] FWCFB 4046.
4 [2018] FWCFB 6075.
5 [2018] FWCFB 6850.
6 [2018] FWCFB 6075 at para [61].
7 Revised Retail PLED, 20 November 2018.
[2019] FWCFB 276
DECISION
E AUSTRALIA FairWork Commission
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201615-exp-draft-retail-revised-tracked-201118.pdf
https://www.fwc.gov.au/documents/decisionssigned/html/2018fwc6075.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2018fwcfb6850.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2018fwc6075.htm
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/2018fwc4046.pdf
https://www.fwc.gov.au/documents/decisionssigned/html/2017fwc5589.htm
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201615-270-report-190917.pdf
[2019] FWCFB 276
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the National Retail Association (the NRA);8 and
Australian Business Industrial and NSW Business Chamber (ABI);9 and
the SDA.10
1. Clause 24—Overtime rate
[5] The SDA noted that it has reviewed the clause and has no issues to raise in relation to
it.
(i) Clause 24.2—Payment of overtime
[6] ABI submits that, in addition to typographical errors to be remedied in clause 24.2,
clause 24.2(a) of the revised PLED, as currently drafted, is unclear about what sort of
rostering issue will cause overtime rates to be payable to an employee.
[7] Clause 29.2(a) of the Retail Award states:
“Hours worked in excess of the ordinary hours of work, outside the span of hours
(excluding shiftwork), or roster conditions prescribed in clauses 27 and 28 are to be
paid at time and a half for the first three hours and double time thereafter.”
[8] Clause 24.2(a) of the revised PLED states:
“An employer must pay an employee for hours worked in excess of the ordinary hours
of work or outside the span of hours (excluding shiftwork) or roster conditions
prescribed in clause 15—Ordinary hours of work at the overtime rate specified in
column 2 of Table 10—Overtime rates.”
[9] The NRA submits that, apart from some grammatical errors to be corrected in clause
24.2, it has no concerns with the clause in its current form.
[10] We agree with ABI that the current clause 24.2(a) could cause confusion and that
additional wording would clarify the meaning of the clause. We propose to amend the clause
to read as follows:
“An employer must pay an employee for hours worked in excess of the ordinary hours
of work or outside the span of hours (excluding shiftwork) or outside the roster
conditions prescribed in clause 15—Ordinary hours of work at the overtime rate
specified in column 2 of Table 10—Overtime rates.”
8 NRA submission, 22 November 2018.
9 ABI submission, 28 November 2018.
10 SDA correspondence, 28 November 2018.
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201615-corr-sda-281118.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201615-sub-abi-211118.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201615-sub-nra-221118.pdf
[2019] FWCFB 276
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(ii) Clause 24.3—Overtime rate
[11] The NRA submits that clause 24.3 of the revised PLED is substantially redundant, as
clauses 24.3(a) and (b) merely echo the language of clauses 24.2(a), (b) and (c). The NRA
submits that clause 24 could be streamlined by deleting clauses 24.3(a) and (b), incorporating
Table 10 into clause 24.2 and re-numbering the remainder of clause 24 accordingly.
[12] We agree with the NRA. Clause 24.3 substantially repeats the content of clauses
24.2(a) and (b). It is our provisional view that clause 24.3 should be deleted and clause 24.2
should be amended to read as follows:
“24.2 Payment of overtime
(a) An employer must pay an full-time employee for hours worked in
excess of the ordinary hours of work or outside the span of hours
(excluding shiftwork) or outside the roster conditions prescribed in
clause 15—Ordinary hours of work at the overtime rate specified in
column 2 of clause 24.2(e).Table 10—Overtime rates.
(b) An employer must pay a part-time employee for hours worked in
excess of the agreed hours in clause 10.5, or as varied under clause
10.6, at the overtime rate specified in column 2 of clause 24.2(e). Table
10—Overtime rates.
(c) An employer must pay a casual employee at the rate specified in
column 3 of clause 24.2(e) Table 10—Overtime rates (inclusive of
the casual loading) for hours worked by the casual employee:
(i) in excess of 38 ordinary hours per week or, if the casual
employee works in accordance with a roster, in excess of
38 ordinary hours per week averaged over the course of the
roster cycle; or
(ii) outside the span of ordinary hours for each day specified in
clause 15.1 (Ordinary hours of work); or
(iii) in excess of 11 hours on one day of the week and in excess of
9 hours on any other day of the week.
(d) Overtime is calculated on daily basis.
24.3 (e) Overtime rate
An employer must pay an employee for overtime worked in accordance
with clause 24.2 at the following rates:
(a) The overtime rate mentioned in clause 0 for a full-time or part-time
employee is the relevant percentage specified in column 2 of Table
10—Overtime rates (depending on when the overtime was worked as
specified in column 1) of the employee’s minimum hourly rate of pay.
[2019] FWCFB 276
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(b) The overtime rate mentioned in clause 0 for a casual employee is the
relevant percentage specified in column 3 of Table 10—Overtime
rates (depending on when the overtime was worked as specified in
column 1) of the employee’s minimum hourly rate of pay (inclusive of
casual loading).
Table 10—Overtime rates
Column 1
For overtime worked
on
Column 2
Overtime rate
Full-time and part-
time employees
% of minimum
hourly rate of pay
Column 3
Overtime rate
Casual employees
% of minimum
hourly rate of pay
(Inclusive of casual
loading)
Monday to Saturday—
first 3 hours
150% 175%
Monday to Saturday—
after 3 hours
200% 225%
Sunday 200% 225%
Public holiday 250% 275%
NOTE: Schedule B—Summary of Hourly Rates sets out the hourly
overtime rate for all employee classifications according to when overtime
is worked.”
(iii) Clause 24.4—Time off instead of payment for overtime
[13] The NRA also raised an additional issue in relation to clause 24.4 of the revised
PLED. It proposes that clause 24.4(g) be amended to add a reference to requests for flexible
working arrangements under the relevant award provision and that a cross-reference could be
inserted after the words “section 65 of the Act”. The NRA submits that clause 24.4 replicates
clause 29.3 of the Retail Award. Clause 24.4(g) refers to requests for flexible working
arrangements under section 65 of the Fair Work Act 2009 (Cth). On 1 December 2018 a
clause relating to requests for flexible working arrangements was inserted in the Retail Award
as clause 31A11 and the clause will be inserted in the Retail PLED as clause 6A.
[14] We agree that clause 24.4(g) of the revised PLED should be amended to include a
reference to requests for flexible working arrangements made under clause 6A. It is our
provisional view that clause 24.4(g) should be amended to read as follows:
“(g) An employee may, under section 65 of the Act or clause 6A of this Award,
request to take time off, at a time or times specified in the request or to be
subsequently agreed by the employer and the employee, instead of being paid
11 See [2018] FWCFB 6863 and PR701395
https://www.fwc.gov.au/documents/awardsandorders/html/pr701395.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2018fwcfb6863.htm
http://www.legislation.gov.au/Series/C2009A00028
[2019] FWCFB 276
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for overtime worked by the employee. If the employer agrees to the request
then clause 24.4 will apply for overtime that has been worked.
NOTE: If an employee makes a request under section 65 of the Act or clause
6A of this Award for a change in working arrangements, the employer may
only refuse that request on reasonable business grounds (see section 65(5) of
the Act).”
[15] Clause 24.4 will also be renumbered as 24.3 following the amendments outlined
above.
Next steps
[16] Interested parties are invited to make submissions in relation to the provisional views
expressed at paragraphs [12] and [14] by 4.00 pm, Friday 8 February 2019.
[17] In the absence of a request for an oral hearing, any outstanding matters will be
determined on the papers. Requests for an oral hearing are to be directed to
chambers.ross.j@fwc.gov.au by no later than by 4.00 pm, Friday 8 February 2019.
[18] The process outlined above will finalise the plain language re-drafting of the Retail
Award subject to the determination of any substantive claims to vary the award and the
finalisation of a number of common issues affecting all, or most, modern awards.
[19] All material should be sent to amod@fwc.gov.au.
PRESIDENT
Printed by authority of the Commonwealth Government Printer
PR703922
mailto:amod@fwc.gov.au
mailto:chambers.ross.j@fwc.gov.au
http://www.legislation.gov.au/Series/C2009A00028
http://www.legislation.gov.au/Series/C2009A00028
