[2019] FWCFB 7173
The attached document replaces the document previously issued with the above code on
24 October 2019.
At paragraph [216], the number “33” has been deleted and replaced with “32”.
Modern Awards Team
On behalf of the Associate to President Ross
25 October 2019
1
Fair Work Act 2009
s.156—4 yearly review of modern awards
4 yearly review of modern awards
(AM2019/17)
JUSTICE ROSS, PRESIDENT
DEPUTY PRESIDENT CLANCY
COMMISSIONER BISSETT MELBOURNE, 24 OCTOBER 2019
4 yearly review of modern awards – finalisation of Exposure Drafts and variation
determinations – Tranche 1.
1. Background
[1] A decision issued on 2 September 20191 (the September 2019 Decision) outlined the
process for finalising the Exposure Drafts produced in the 4 yearly review of modern awards
(the Review) and the consequent variation of each modern award. This Full Bench
(AM2019/17) has been constituted to oversee this process and for that purpose we have
divided modern awards into 3 tranches. The awards in each tranche were set out at
Attachment B to the September 2019 Decision.
[2] This decision deals with the 37 awards2 in Tranche 1, that is:
Aluminium Industry Award 2010
Ambulance and Patient Transport Industry Award 2010
Animal Care and Veterinary Services Award 2010
Aquaculture Industry Award 2010
Banking, Finance and Insurance Award 2010
Book Industry Award 2010
Car Parking Award 2010
Cement, Lime and Quarrying Award 2010
Cemetery Industry Award 2010
Coal Export Terminals Award 2010
Corrections and Detention (Private Sector) Award 2010
Cotton Ginning Award 2010
1 [2019] FWCFB 6077.
2 The Business Equipment Award 2010, Graphic Arts, Printing and Publishing Award 2010 and Telecommunications
Services Award 2010 were initially included in Tranche 1 but have been moved to Tranche 3 in accordance with a
request from the Australian Industry Group (Ai Group); see [2019] FWCFB 6562.
[2019] FWCFB 7173
DECISION
E AUSTRALIA FairWork Commission
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Electrical Power Industry Award 2010
Fire Fighting Industry Award 2010
Funeral Industry Award 2010
Gardening and Landscaping Services Award 2010
Hydrocarbons Industry (Upstream) Award 2010
Legal Services Award 2010
Market and Social Research Award 2010
Medical Practitioners Award 2010
Mining Industry Award 2010
Nursery Award 2010
Oil Refining and Manufacturing Award 2010
Pharmacy Industry Award 2010
Port Authorities Award 2010
Premixed Concrete Award 2010
Racing Industry Ground Maintenance Award 2010
Real Estate Industry Award 2010
Salt Industry Award 2010
Seafood Processing Award 2010
Silviculture Award 2010
Sporting Organisations Award 2010
State Government Agencies Award 2010
Surveying Award 2010
Travelling Shows Award 2010
Water Industry Award 2010
Wool Storage, Sampling and Testing Award 2010
[3] On 2 September 2019 Exposure Drafts were published for each of these awards with
amendments made in tracked change to show the changes made since the Exposure Draft was
last published. Draft variation determinations in respect of each award were also published.
[4] In the September 2019 decision we expressed the provisional view that the variation
of the modern awards in Tranche 1 in accordance with the draft variation determinations was,
in respect of each of these awards, necessary to achieve the modern awards objective.
Interested parties were invited to comment on the provisional view in accordance with the
timetable3 below:
Date Event
2 September 2019 Publish final Exposure Drafts and draft variation
determinations
27 September 2019 Parties to file submissions on final Exposure Drafts and
draft variation determinations
8 October 2019 Parties to file submissions in reply
11 October 2019 Full Bench Hearing (if required)
3 As amended by [2019] FWCFB 6562.
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[5] Submissions have been filed by:
Australian Manufacturing Workers’ Union (AMWU) on 30 September 2019 and 8
October 2019;
Australian Business Industrial and NSW Business Chamber (ABI) on 27 September
2019;
Australian Industry Group (Ai Group) on 20 September 2019, 8 October 2019 and
23 October 2019;
Professionals Australia on 20 September 2019;
United Voice on 20 September 2019; and
Australian Workers’ Union (AWU) on 9 October 2019.
[6] Issues raised in respect of the Tranche 1 awards were the subject of a hearing on
Friday 11 October 2019. A statement issued on 10 October 20194 (the October 2019
Statement) expressed a number of provisional views in respect of some of the points
previously advanced.
2. General Issues
[7] Four general issues are raised in the submissions.
2.1 Operative Date
[8] Ai Group notes that the draft variation determinations in respect of the Tranche 1
awards do not propose a date upon which the determinations would come into operation. Ai
Group submits that the variations should commence operation ‘not less than three months
after the final determination is issued’.5 The AMWU is not opposed to a ‘three month lead in
time’ for the operation of the varied awards.6
[9] In the October 2019 Statement we accepted that some lead in time would be
appropriate and expressed the provisional view that the variation determinations be published
in October 2019 and come into operation on 3 February 2020.
[10] This issue was the subject of further discussion during the course of the hearing on
11 October 2019.7 Arising from that exchange the Fair Work Commission (Commission)
proposed the following course:
1. The Full Bench will issue a decision dealing with the issues arising in respect
of the Tranche 1 Exposure Drafts and associated draft variation
determinations.
4 [2019] FWCFB 6894.
5 Ai Group submission, 20 September 2019, at para 3.
6 AMWU submission, 8 October 2019, at para 14.
7 Transcript, 11 October 2019.
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2. Variation determinations for the Tranche 1 awards will be published no later
than 25 November 2019 (subject to our later comments in respect of three of
the Tranche 1 awards, see [18] below). The variation determinations will
commence operation on 4 February 2020.
3. If a Tranche 1 award is the subject of another variation determination between
the publication of the variation determination arising from this decision (25
November 2019) and when those variation determinations commence
operation (on 4 February 2020) a conference will be convened to provide all
parties interested in the affected award with an opportunity to be heard in
relation to the appropriate course of action.
[11] No party opposed the course proposed. We will adopt the course set out at [10]
above.
2.2 Overtime for casuals
[12] ABI notes that in the September 2019 Decision we acknowledge that various common
issue matters are yet to be finally determined, including the ‘Overtime for Casuals’ matter.8
[13] A number of the Tranche 1 Exposure Drafts published on 2 September 2019 contain
summary tables setting out the overtime rates for casual employees (in dollar terms). The
calculation of some of these rates is currently in dispute as part of the ‘Overtime for Casuals’
matter. The tables in the relevant Exposure Drafts contain the following disclaimer:
‘A Full Bench has been constituted in AM2017/51 to deal with the issue of overtime for
casuals. The rates in the tables below dealing with overtime for casuals will not become
operative until a decision is made in that matter and only to the extent that they are consistent
with the decision.’
[14] ABI agrees that the summary tables should not be given effect until the relevant
decision is handed down, but submits that it is not clear whether the Commission intends to:
(i) publish the updated awards without these tables, inserting them at a later time after the
relevant Full Bench hands down its decision; or
(ii) publish the updated awards with the tables as currently set out in the Exposure Drafts,
along with a disclaimer that the rates are not yet operational and are subject to a further
decision of the Commission.9
[15] ABI submits that the first option is the most appropriate and, further, if the relevant
Full Bench has not yet handed down its decision, a similar process should be undertaken in
relation to updated Exposure Drafts in Tranches 2 and 3.10
[16] In its reply submissions the AMWU advises that it is not opposed to the course of
action proposed by ABI.11
8 ABI submission, 27 September 2019, at para 9.
9 ABI submission, 27 September 2019, at para 11.
10 ABI submission, 27 September 2019, at paras 12-13.
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[17] In the October 2019 Statement we expressed the provisional view that the first option
set out above was the appropriate course. At the hearing on 11 October 2019 there was no
opposition to our provisional view. We confirm that the variation determinations arising
from this decision will not include any schedules containing overtime rates for casuals where
that issue is contested. These schedules can be inserted into the Tranche 1 awards, if
appropriate, after the Part-time and Casuals Full Bench has determined the contested issues.
2.3 Casual conversion clauses
[18] This issue affects three Tranche 1 awards: Cement, Lime and Quarrying Award 2010
(at clause 11.4); Cotton Ginning Award (2010) (at clause 11.5); and the Premixed Concrete
Award 2010 (at clause 11.3). The casual conversion clauses in the Exposure Drafts and
variation determinations in respect of each of these awards are in substantially different terms
to the casual conversion clauses in the current awards. The variation determinations in
respect of each of these awards will be amended to reflect the terms of the casual conversion
clauses in the current awards.
2.4 Reference to National Training Wage
[19] Ai Group submits that the reference to the ‘Miscellaneous Award 2010’ in the
National Training Wage clauses in the Exposure Drafts ‘may require updating.’12 The
AMWU agrees.13
[20] The references to the ‘Miscellaneous Award 2010’ will be updated when the title of
that award is varied.
2.5 The ‘note’ in Schedules of Rates
[21] A note in the following terms has been deleted from the Schedules of Rates in the
Exposure Drafts and variation determinations:
‘NOTE: Employers who meet their obligations under this schedule are meeting their
obligations under the award.’
[22] Ai Group submit that absent a decision by the Commission to remove the note, it
should be reinserted.14 The AMWU supports the deletion of the note.15
[23] In the October 2019 Statement we expressed the provisional view that the note be
deleted on the basis that it may give rise to a mistaken belief that compliance with the rates in
the Schedule means that all award obligations are met, including, for example, conditions
such as leave provisions and meal breaks. At the hearing on 11 October no party contested
11 AMWU reply submission, 9 October 2019, at para 9.
12 Ai Group submission, 20 September 2019, at para 28.
13 AMWU reply submission, 8 October 2019, at para 16.
14 Ai Group submission, 20 September 2019, at para 23.
15 AMWU reply submission, 8 October 2019, at para 18.
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our provisional view. We confirm our provisional view and the note set out at [21] above
will be deleted from the variation determinations.
3. Correcting Minor Errors
[24] A number of the submissions received identify minor typographical errors or other
errors within Exposure Drafts. Such minor errors have been identified in the following
Exposure Drafts:
Aquaculture Industry Award 2010;16
Aluminium Industry Award 2010;17
Ambulance and Patient Transport Industry Award 2010;18
Banking, Finance and Insurance Award 2010;19
Cement, Lime and Quarrying Award 2010;20
Cotton Ginning Award 2010;21
Electrical Power Award 2010;22
Premixed Concrete Award 2010;23
Real Estate Industry Award 2010;24
Salt Industry Award 2010;25
Seafood Processing Award 2010;26
Silviculture Award 2010;27
Water Industry Award 2010;28 and
16 AWU submission 9 October 2019 at para 9, cross reference error in clause 20.1(a)(i); para 11 cross references error in
clause 27.
17 Ai Group submission, 20 September 2019 at para 11, the word ‘the’ should be inserted before ‘work’ in clause 2; at para
15, the reference to clause 17 in clause 7.2 should be to clause 17.1; at para 18, the reference to ‘shift penalties’ in clause
20.3(b) should be changed to ‘shift loadings’; at para 22, note 1 in clause 22.7 should be amended to refer to ‘clause
22.7(d)’ instead of ‘clause 22.7(b). AWU submission 9 October 2019 para 5, formatting issue at the end of clause
17.5(a); para 7: missing full stop in clause 22.5(a).
18 United Voice submission, 20 September 2019 at para 6, regarding typographical error at clause 16.1(b).
19 Ai Group submission, 20 September 2019 at para 25, the reference to clause 16 in clause 7.2 should be to clause 16.1; at
para 29 the word ‘rates’ should be inserted after ‘minimum’ in clause 17.1(a)(i); at para 30 the cross reference in clause
27.2 should be to clause 27.4, not clause 27.2.
20 Ai Group submission, 20 September 2019 at para 34, regarding cross referencing error in clause 4.1; para 36, the reference
to clause 17 in clause 7.2 should be to clause 17.1(b). See also ABI and NSWBC submission, 27 September 2019 at para
11 regarding typographical error in clause 14.5.
21 Ai Group submission, 20 September 2019 at para 43, regarding typographical errors in clause 2; para 50, the reference to
clause 18 in clause 7.2 should be to clause 18.1.
22 Ai Group submission 20 September 2019 at para 58, delete the subheadings ‘penalty rates’ in clause 20.1.
23 Ai Group submission, at paras 81, 82 and 83 regarding cross reference errors in clauses 4.4 and 7.2; at para 83 the words
’13. Ordinary hours of work’ in clause 9 should be deleted; at para 86, replace ‘Minimum rates’ with ‘Overtime’ in
clause 15.6; para 88, the semi colon at the end of clause 22.2 should be replaced with a full stop.
24 ABI and NSWBC submission, 27 September 2019 at paras 21-22 regarding cross referencing error in clause 17.4(a).
25 Ai Group submission, 20 September 2019 at para 91, the reference to (b) before 4.2 should be deleted; at para 96, the
reference to ‘clause 23.6’ in clause 23.5 should be deleted and replaced with a reference to ‘clause 23.3’.
26 AWU submission 9 October 2019 at para 36, the cross reference in clauses 20.6 and 20.7(f) should be to clause 20.5.
27 AWU submission 9 October 2019 at para 38, in clause 13.2 the reference to clause 8.3 should be to clause 13.3.
28 AMWU submission, 30 September 2019 at paras 21-24, the cross reference to ‘4.2’ should be deleted, see also Ai Group
submission, 20 September 2019 at para 102 regarding the same issue; Ai Group submission, 20 September 2019, at para
105 the reference to ‘clause 17.4’ in clause 17.4 should be changed to ‘clause 17’; at paras 107 and 109 regarding cross
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Wool Storage, Sampling and Testing Award 2010.29
[25] Any party who wished to contest the variation of these Exposure Drafts (and the
related variation determinations) to address the minor errors identified was invited to make a
submission at the commencement of the hearing on 11 October 2019. It was made clear in the
October 2019 Statement that absent any opposition we would amend the Exposure Drafts and
the associated variation determination to address the issues set out in the footnotes to [24]
above.
[26] At the hearing on 11 October 2019 no party opposed the correction of the identified
errors. We will amend the variation determinations accordingly.
[27] A number of minor errors have been identified in the Schedule of Hourly Rates tables
in some Tranche 1 variation determinations (see footnotes 118 and 119). These will also be
corrected.
4. Award specific issues
4.1 Aluminium Industry Award 2010
(i) Definition and use of the terms ‘ordinary hourly rate of pay’ and ‘ordinary
hourly rate’
[28] The Exposure Draft defines ‘ordinary hourly rate of pay’ at clause 2 as follows:
‘ordinary hourly rate of pay means the hourly rate for an employee’s classification specified
in clause 16—Minimum rates inclusive of work conditions and disability allowance’
[29] The Exposure Draft variously uses the terms ‘ordinary hourly rate of pay’ and
‘ordinary hourly rate’. Ai Group suggests that the Exposure Draft be varied to consistently
use the term ‘ordinary hourly rate’.30 No party opposed this suggestion.
[30] We agree with Ai Group and the variation determination be amended to replace the
expression ‘ordinary hourly rate of pay’ with ‘ordinary hourly rate’.
(ii) Definition of ‘roster’
[31] Clause 2 of the Exposure Draft defines ‘roster’ as follows:
‘roster means a calendar identifying the days/shifts on which an employee is required to
work’
[32] The current award defines roster as follows:
referencing issue in clause 21.5 (reference to ‘clause 18.5’ should be replaced with ‘clause 21.5’ and C.1.1 (the reference
to clause ‘18.3(c)(iv)’ should be replaced with ‘18.3’(c)(v).
29 Ai Group submission, 20 September 2019 at para 111, the cross reference to clause 29 in clause 14.1(b)(v) should be
replaced with a reference to ‘clause 30 – Consultation about changes to rosters or hours of work’; at para 113, regarding
cross referencing error in clause 18.5.
30 Ai Group submission, 20 September 2019, at para 10.
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‘roster means a calendar of days identifying the days/shifts on which an employee is (or
employees are) required to work’
[33] Ai Group submits that the definition in the Exposure Draft should be replaced by the
current definition in the award and says:
‘We are concerned that a calendar identifying the days/shifts on which multiple employees are
required to work would not meet the definition of ‘roster’ at clause 2. This may have
substantive implications, for example, for the operation of clause 14.4 – 14.6 of the
instrument.’31
[34] In the October 2019 Statement we expressed the provisional view that the definition
of ‘roster’ in clause 2 be amended as follows:
‘roster means a calendar of days identifying the days/shifts on which employees are required
to work.’
[35] At the hearing on 11 October 2019 there was no opposition to our provisional view.
We confirm that the variation determinations will be amended as proposed at [34] above.
(iii) Clauses 14.1(f) Ordinary hours of work
[36] Clauses 14.1(e) and (f) state:
‘(e) An employer may agree with an employee or with a majority of affected employees, to
alter the span of hours to suit operational and employee needs.
(f) Any time worked outside the ordinary hours of any shift or outside the span of hours in
clause 14.1(d) is overtime. An employee will be advised in writing of which hours in the
roster cycle are ordinary hours and which hours are overtime.’
[37] Ai Group submits that clause 14.1(f) ‘neglects to contemplate the operation of clause
14.1(e), which provides that an employer may agree with an employee or with the majority of
affected employees, to alter the span of hours’32 and submits that this issue could be
addressed by amending clause 14.1(f), as follows:
‘Any time worked outside the ordinary hours of any shift or outside the span of hours in
clause 14.1(d) (or as agreed in accordance with clause 14.1(e)) is overtime. An employee will
be advised in writing if which hours in the roster cycle are ordinary hours and which hours are
overtime.” (underline is proposed insertion)’33
[38] There was no opposition to Ai Group’s proposal. The amendment proposed by Ai
Group will be adopted and the variation determination amended accordingly.
(iv) Clause 20.8 Make up time
31 Ai Group submission, 20 September 2019, at para 12.
32 Ai Group submission, 20 September 2019, at para 16.
33 Ai Group submission, 20 September 2019, at para 17.
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[39] Ai Group submits that clause 20.8 ‘appears to unnecessarily repeat the substance of
clause 14.9’ and that make-up time is more appropriately dealt with alongside other
provisions dealing with ordinary hours. On this basis it is submitted that clause 20.8 should
be deleted and clause 14.9 retained.34
[40] In the October 2019 Statement we expressed the provisional view that clause 20.8 be
deleted and clause 14.9 be amended to read:
‘An employee may elect, with the consent of the employer, to work make-up time under
which the employee does not work ordinary hours in accordance with the employee’s roster
but works those hours at a later time within the same roster cycle.’
[41] At the hearing on 11 October 2019 there was no opposition to our provisional view.
We confirm that clause 20.8 will be deleted and clause 14.9 amended as set out above.
(v) Clause 22.1(b) Annual Leave
[42] Clause 22.1(b) states:
‘22.1 Annual leave
…
(b) an employer may convert the annual leave entitlement in the NES to an equivalent
ordinary hour entitlement for administrative ease (for example 152 hours for a full-time
employee entitled to four 4 weeks’ of annual leave and190 hours for a continuous
shiftworker).’
[43] The AWU submits that:
‘Consideration should be given to deleting the entire subclause or at least the bracketed
example because the content is arguably inconsistent with the National Employment
Standards (“NES”) based on the Full Bench decision in RACV35 i.e. accruing the specified
hours may not be sufficient to enable an employee to access their full NES entitlement.’36
[44] Given that the AWU submission was filed late all interested parties were given an
opportunity to file a submission in response, by 4pm Wednesday 16 October.
[45] Ai Group filed a submission on 23 October 201937 in which it did not oppose the
deletion of the example in order to address the AWU’s concern. The AWU considers the
matter it has raised to have been resolved if the bracketed example is deleted. ABI does not
34 Ai Group submission, 20 September 2019, at paras 19-20.
35 RACV Road Service Pty Ltd v Australian Municipal, Administrative, Clerical and Services Union [2015] FWCFB
8554.
36 AWU submission 9 October 2019, at para 6.
37 Ai Group submission, 23 October 2019, at [3]-[7].
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oppose the deletion of the example. We will delete the bracketed example from clause
22.1(b).
(vi) Clause 27.2 holiday pay
[46] Clause 27.2 states:
‘27.2 Where an employee works on a public holiday they will be paid in accordance with
clause 21.3.’
[47] The AWU submit that clause 27.2 be amended to read:
‘Where an employee works on a public holiday they will be paid in accordance with clause
21.3 or 29.1(a)(ii).’38
[48] It is submitted that this change ‘captures the rate of pay for ordinary hours and
overtime worked on a public holiday’.39
[49] During the course of the hearing on 11 October 2019 it was generally agreed that
clause 27.2 should be amended, as follows:
27.2 Where an employee works on a public holiday they will be paid in accordance with
clauses 21.3, 20.1(a)(iii) and 20.2.
[50] We agree and will amend the variation determination accordingly.
4.2 Ambulance and Patient Transport Industry Award 2010
[51] Clause 22.3 of the Exposure Draft states:
‘22.3 Payment for annual leave
(a) Before going on annual leave, an employee will be paid the amount of wages they
would have received for ordinary time worked had they not been on leave during that
period. This includes any allowances, loading, shift allowance penalties or over-award
payments which would have been received had the employee not been on leave.
(b) In addition, the employer must pay the employee a loading of 17.5% of the
employee’s ordinary pay for ordinary hours the employee would have worked had
they not been on leave during that period.
(c) Electronic funds transfer (EFT) payment of annual leave
Despite anything else in clause 17, an employee paid by electronic funds transfer
(EFT) may be paid in accordance with their usual pay cycle while on paid annual
leave.
38 AWU submission 9 October 2019, at para 8.
39 AWU submission 9 October 2019, at para 8.
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NOTE: Where an employee is receiving over award 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 sections 16 and 90 of the
Act).’
[52] Clause 30.4 of the current award states:
‘Before going on annual leave, an employee will be paid the amount of wages they would
have received for ordinary time worked had they not been on leave during that period. This
includes any allowances, loading, shift penalties or overaward payments which would have
been received had the employee not been on leave.’
[53] United Voice submit that the current award at clause 30.4 expressly includes shift
penalties and states that payment for annual leave will include ordinary time wages including
‘any allowances, loading, shift penalties or over award payments which would have been
received had the employee not been on leave’. They submit that in the Exposure Draft at
clause 22.3(a), ‘penalties’ has been crossed out and replaced with ‘allowances’. United Voice
submit that the award contains both shift allowances (clause 18.2(g)) and shift penalties
(clause 21.1), and the exclusion of shift penalties would be a substantive change and could
result in a reduction in employees’ annual leave entitlements.40 They submit that clause
22.3(a) of the Exposure Draft should be amended as follows:
‘…This includes any allowances, loading, shift allowances, penalties or over-award payments
which would have been received had the employee not been on leave.’
[54] There was no opposition to the amendment proposed by United Voice. We agree with
the submission put and will vary clause 22.3(a) in the variation determination as proposed by
United Voice.
4.3 Animal Care and Veterinary Services Award 2010
[55] Two issues arise in respect of this award. The first concerns clause 31 which states:
‘31. Termination of employment
NOTE: The NES sets out requirements for notice of termination by an employer. See sections
117 and 123 of the Act.
31.1 Notice of termination by an employee
(a) Clause 31.1 applies to all employees except those identified in sections 123(1) and 123(3)
of the Act.
(b) An employee must give the employer notice of termination in accordance with Table 1—
Period of notice of at least the period specified in column 2 according to the period of
continuous service of the employee specified in column 1.’
Table 1—Period of notice Column 1
Employee’s period of continuous service with the
Column 2
Period of notice
40 United Voice submission, 20 September 2019, at para 7.
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employer at the end of the day the notice is given
Not more than 1 year 1 week
More than 1 year but not more than 3 years 2 weeks
More than 3 years but not more than 5 years 3 weeks
More than 5 years 4 weeks
(c) In clause 31.1(b) continuous service has the same meaning as in section 117 of the Act.
(d) If an employee who is at least 18 years old does not give the period of notice required
under clause 31.1(b), then the employer may deduct from wages due to the employee under
this award an amount that is no more than one week’s wages for the employee.
(e) If the employer has agreed to a shorter period of notice than that required under clause
31.1(b), then no deduction can be made under clause 31.1(d).
(f) Any deduction made under clause 31.1(d) must not be unreasonable in the circumstances.
31.2 Job search entitlement
(a) Where an employer has given notice of termination to an employee, the employee must be
allowed time off without loss of pay of up to one day for the purpose of seeking other
employment.
(b) The time off under clause 31.1(c) is to be taken at times that are convenient to the
employee after consultation with the employer.’
[56] United Voice submit that the notice of termination period has been amended in clause
11.1(b) of the current award but it is not reflected in clause 31 of the Exposure Draft.41 It
submits that the Exposure Draft should be amended to take account of decision
[2019] FWCFB 5409 at [56]. In the October 2019 Statement we indicated our agreement with
the submission put and expressed the provisional view that clause 31 be varied to reflect
determination PR711488. There was no opposition to our provisional view at the hearing on
11 October 2019 and we confirm that the variation determination will be amended to reflect
determination PR711488.
[57] The second issue concerns the higher duties at clause 15.7(a)(ii) of the Exposure Draft
which states:
‘(ii) Any employee who is required to perform work for which a lower rate is paid must not
suffer any reduction in wages; provided the duration of the work is less than one week.’
[58] United Voice submit that clause 15.7(a)(ii) does not accurately reflect the current
clause 16.2(c)(ii). Clause 16.2(c)(ii) of the current award states:
‘(ii) Any employee who is required to perform work temporarily for which a lower rate is
paid must not suffer any reduction in wages whilst so employed; provided that any work of
less than one week’s duration will be deemed to be temporary.’
41 United Voice submission, 20 September 2019, at para 9.
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[59] United Voice submits that the current clause places a limitation on the maximum
period of time an employee (who is not a veterinary surgeon) can be required to temporarily
perform work at a lower classification (one week) and stipulates that an employee must not
suffer any reduction in wages over that period.42 United Voice contends that clause 15.7(a)(ii)
of the Exposure Draft suggests that if an employee was required to work at a lower
classification for a period of over one week, the employer may be able to pay the employee a
lower wage rate43 and contends that this deviates from the current clause and is detrimental to
employees. United Voice propose clause 15.7(a)(ii) of the Exposure Draft be re-worded as
follows:
‘Any employee who is required to temporarily perform work for which a lower rate is paid for
must not suffer any reduction in wages. An employee may be required to temporarily perform
work at a lower classification for a period of less than one week.’
[60] In the October 2019 Statement we indicated our agreement with the submission put
and expressed the provisional view that clause 15.7(a)(ii) be amended as proposed by United
Voice. There was no opposition to our provisional view at the hearing on 11 October 2019
and we confirm that clause 15.7(a)(ii) in the variation determination will be amended, as
proposed by United Voice.
4.4 Aquaculture Industry Award 2010
[61] Two issues arise in relation to this award:
(i) Clause 20.8(b)
[62] Clause 20.8(b) of the Exposure Draft states:
‘20.8 Breaks during overtime
…
(b) Where overtime is to be worked immediately after the completion of ordinary hours and
the period of overtime is to be more than one and a half hours, an employee, before starting
the overtime will be allowed a meal break of 20 minutes, to be paid at the employee’s
minimum hourly rate.’
[63] Clause 21.3(b) of the current award states:
‘21.3 Crib breaks
…
(b) Where the period of overtime is to be for more than one and a half hours, an employee
will be allowed a meal break of 20 minutes after ordinary hours before commencing overtime.
This break will be paid for at ordinary rates.’
[64] The AWU submits:
42 United Voice submission, 20 September 2019, at para 10.
43 United Voice submission, 20 September 2019, at para 13.
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‘The exposure draft refers to payment at the “minimum hourly rate” for twenty minutes where
more than 1 ½ hours of overtime is to be worked after ordinary hours. Clause 21.3(b) of the
current award refers to payment at “ordinary rates”. The term “ordinary rates” would include
shift loadings and weekend penalty rates but the term “minimum hourly rate” does not. This
means the exposure draft reduces the current condition and creates an anomalous outcome
whereby an employee may fall onto a lower rate.’44
[65] There was no opposition to the change proposed by the AWU. We agree with the
submission put and will amend the variation determination accordingly.
(ii) Clause 27.3
[66] The second issue concerns clause 27.3, which states:
‘27. Public holidays
…
27.3 Where an employee works on a public holiday or another day substituted in accordance
with clause 27.2 they will be paid in accordance with clauses 21.3 or 20.6.’
[67] The AWU submits:
‘This should be amended to read: “Where an employee works on a public holiday or another
day substituted in accordance with clause 27.2 they will be paid in accordance with clauses
20.6, 21.3 or 21.5(c).” The rate for ordinary time worked by day workers on a public holiday
is contained in clause 21.5(c).’45
[68] There was no opposition to the change proposed by the AWU. We agree with the
submission put and will amend the variation determination accordingly.
4.5 Banking, Finance and Insurance Award 2010
[69] Clause 13.7(d) of the Exposure Draft states:
‘(d) Shiftwork penalties
The following loadings shiftwork penalties will apply in relation to the working of shiftwork
on Monday to Friday and on Saturday between 8.00 am and 12.00 pm:
% of minimum hourly rate
Early morning shift 112.5
Afternoon shift 120
Night shift 125
Employees who permanently work afternoon or night shift or a combination thereof will
be paid an additional 5% loading
44 AWU submission, 9 October 2019, at para 10.
45 AWU submission, 9 October 2019, at para 11.
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[70] Ai Group submit that the amendments made to clause 13.7(d) do not adequately
address the concerns they previously raised about the characterisation of shift
loadings/penalties. They submit that the clause purportedly requires the payment of a penalty,
but in fact the clause however prescribes a rate that is payable for such time worked; the
amount prescribed is not a penalty that is payable in addition to the base rate of pay.46
[71] Ai Group propose the following rewording to clause 13.7(d) and note that this clause
may require further consideration once the decision in relation to annual leave loading
clauses has been issued by the Commission:
‘(d) Shiftwork penalties penalty rates
The following shiftwork penaltyies rates will apply in relation to the working of
shiftwork on Monday to Friday and on Saturday between 8:00am and 12:00pm:…’
[72] In the October 2019 Statement we expressed the provisional view that clause 13.7(d)
be varied as proposed by Ai Group. There was no opposition to our provisional view at the
hearing on 11 October 2019 and we confirm that clause 13.7(d) will be varied as proposed by
Ai Group and the variation determination will be amended accordingly.
4.6 Cement, Lime and Quarrying Award 2010
[73] Three issues arise in relation to this award.
(i) Definition of ‘ordinary hourly rate’
[74] Clause 2 of the Exposure Draft defines ‘ordinary hourly rate’ as follows:
‘ordinary hourly rate means the hourly rate for an employee’s classification specified in
clause 16—Minimum ratesMinimum rates, inclusive of the industry allowance. Where an
employee is entitled to an additional all-purpose allowance, this allowance forms part of the
employee’s ordinary hourly rate.’
[75] Ai Group propose that the definition be amended to make clear that where an
employee is entitled to all-purpose allowances in addition to the industry allowance, they are
to be included in the employee’s ordinary hourly rate. Ai Group submit that the current
definition may be read to suggest that such allowances are to be included in lieu of the
industry allowance.47 During the course of the hearing on 11 October 2019 there was general
agreement that the last sentence of the definition be amended to read:
‘Where an employee is entitled to an additional all-purpose allowance, this allowance also
forms part of the employee’s ordinary hourly rate.’48
[76] We agree and will amend the variation determination accordingly.
46 Ai Group submission, 20 September 2019, at para 26.
47 Ai Group submission, 20 September 2019, at para 33.
48 Transcript, 11 October 2019 at PN145-PN149.
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(ii) Clauses 4.4 and 4.5
[77] ABI contend that the references to ‘cement and lime and quarrying industry’ in
clauses 4.4 and 4.5 are problematic. The industries are separately defined but there is no
definition of the ‘cement and lime and quarrying industry’ and retention of this phrase may
be interpreted as requiring membership of both industries. ABI submits that ‘cement and lime
industry’ and ‘quarrying industry’ should be used.49
[78] In the October 2019 Statement we indicated our agreement with the submission put
and expressed the provisional view that the Exposure Draft and variation determination be
varied such that the reference to ‘cement and lime and quarrying industry’ in clauses 4.4 and
4.5 are deleted and that the words ‘cement and lime industry and quarrying industry’ be
inserted instead. There was no opposition to our provisional view at the hearing on 11
October 2019. We confirm our view and will amend the variation determination accordingly.
(iii) Clause 27.2
[79] Clause 27.2 states:
‘27. Public holidays
...
27.2 Where an employee works on a public holiday they will be paid in accordance with
clause 21.6.’
[80] Clause 21 states:
‘21. Penalty Rates
21.1 Afternoon shifts
Afternoon shift means any shift finishing after 6.00 pm and at or before midnight. If the
employee is rostered to work an afternoon shift, the employee must be paid at 115% of the
ordinary hourly rate for such shift. A casual employee will be paid at 140% of the ordinary
hourly rate.
21.2 Night shift
(a) Night shift means any shift finishing after midnight and at or before 8.00 am. If the
employee is rostered to work a night shift, the employee must be paid at 115% of the ordinary
hourly rate for such shift. A casual employee will be paid at 140% of the ordinary hourly rate.
An employee working permanent night shifts will be paid at 130% of the ordinary hourly rate.
A casual employee will be paid at 155% of the ordinary hourly rate.
(b) Permanent night shift means when an employee who:
(i) during a period of engagement on shiftwork, works night shift only; or
49 ABI and NSWBC submission, 27 September 2019, at paras 18-20.
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(ii) remains on night shift for a longer period than 4 consecutive weeks; or
(iii) works on a night shift which does not rotate or alternate with another shift or
with day work so as to give him or her at least 1/3rd of his or her working time off
night shift in each shift cycle.
21.3 Saturday shifts—cement and lime industry
If an employee works a shift, part of which is on a Saturday, the employee must be paid at
150% of the ordinary hourly rate and a casual employee must be paid at 175% of the ordinary
hourly rate. This extra rate will be in substitution for and not cumulative upon the shift
penalties in clauses 21.1 and 21.2.
21.4 Saturday shifts—quarrying industry
If an employee works a shift, part of which is on a Saturday, the employee must be paid at
150% of the ordinary hourly rate for the first 2 hours and 200% of the ordinary hourly rate
after that. A casual employee must be paid at 175% of the ordinary hourly rate for the first 2
hours and 225% of the ordinary hourly rate after that. This extra rate will be in substitution for
and not cumulative upon the shift penalties in clauses 21.1 and 21.2.
21.5 Sunday shifts
If an employee works a shift, part of which is on a Sunday, the employee must be paid at
200% of the ordinary hourly rate and a casual employee must be paid at 225% of the ordinary
hourly rate. This extra rate will be in substitution for and not cumulative upon the shift
penalties in clauses 21.1 and 21.2.
21.6 Public holiday shifts
If an employee works a shift, part of which is on a public holiday, the employee must be paid
at 250% of the ordinary hourly rate and a casual employee must be paid at 275% of the
ordinary hourly rate. This extra rate will be in substitution for and not cumulative upon the
shift penalties in clauses 21.1 and 21.2.
[81] The AWU submits that clause 27.2 be amended to read:
‘Where an employee works on a public holiday they will be paid at the rate of 250% of the
ordinary hourly rate and a casual employee must be paid at 275% of the ordinary hourly rate.’
[82] The AWU contends that the proposed amendment ‘clarifies the entitlement for day
workers and for overtime given clause 21.6 of the Exposure Draft is arguably confined to
ordinary time worked by shift workers’.50
[83] Ai Group opposes the proposed amendment, contending that it is not necessary as
clause 21.6 provides an entitlement to day workers.51
50 AWU submission, 9 October 2019, at para 13.
51 Transcript, 11 October 2019 at PN156.
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[84] There is no dispute between the parties as to a day workers entitlements in respect of
public holiday work. The issue is confined to how that entitlement should be expressed in the
award. Ai Group is content with the way the Exposure Draft is currently expressed and the
AWU seeks to clarify the entitlement.
[85] We agree with the AWU. While clause 21.6 may well encompass day workers, as
submitted by Ai Group, the context creates a degree of ambiguity. The earlier subclauses in
clause 21 speak of ‘Afternoon shifts’ (clause 21.1) and Night shifts (clause 21.2) or shifts in
particular industry sectors (clause 21.3 and 21.4). In our view, it is appropriate that clause
27.2 be amended to put this issue beyond doubt. We will amend clause 27.2 as proposed by
the AWU.
4.7 Cemetery Industry Award 2010
[86] Two issues arise in relation to this award.
(i) Clause 10.2
[87] Clause 10.2 reads:
‘10.2 A casual employee must be paid per ordinary hour worked:
(a) the ordinary hourly rate appropriate to the employee’s classification; and
(b) a loading of 25% of the ordinary hourly rate.’
[88] The AWU submits:
‘This should be amended to read: “A casual employee must be paid per ordinary hour
worked…” The word “ordinary” does not appear in clause 10.3(b) of the current award. The
wording in the exposure draft may constitute a significant substantive change. The issue is
before the Casual Overtime Full Bench and the wording from the current award should be
maintained until the issue is resolved in those proceedings.’52
[89] There was no opposition to the AWU’s proposed amendment to clause 10.2 at the
hearing on 11 October 2019. We agree with the submission put and will amend clause 10.2
in the variation determination accordingly.
(ii) Schedule B.2.2
[90] The AWU submits that the ‘ordinary hours’ column in Schedule B.2.2 be deleted.
There was no opposition to the AWU submission at the hearing on 11 October 2019.53 We
agree with the submission put and will delete Schedule B.2.2 from the variation
determination.
4.8 Cotton Ginning Award 2010
52 AWU submission, 9 October 2019, at para 13.
53 AWU submission, 9 October 2019, at para 16.
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[91] Three issues arise in relation to the Exposure Draft.
(i) Definition of ‘ordinary hourly rate’
[92] Clause 2 of the Exposure Draft defines ‘ordinary hourly rate’ as follows:
‘ordinary hourly rate means the hourly rate for the employee’s classification specified in
clause 17—Minimum rates, 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’
[93] Ai Group submit that the reference to the ‘industry allowance’ should be replaced
with ‘disability allowance’ as neither the current award nor the Exposure Draft prescribe an
industry allowance.54 Ai Group also suggests that the definition be amended to make clear
that where an employee is entitled to all-purpose allowances in addition to the disability
allowance, they are to be included in the employees’ ordinary hourly rate in addition to the
disability allowance, consistent with the current award. Ai Group contend that the current
definition could be read to suggest that such allowances are to be so included in lieu of the
disability allowance.55
[94] There was no opposition to Ai Group’s proposal at the hearing on 11 October 2019.
We agree with Ai Group. Consistent with our decision in relation to the Cement, Lime and
Quarrying Award (at [75] – [76] above) we will insert the word ‘also’ in the definition. The
amended definition will read:
‘Ordinary hourly rate means the hourly rate for the employee’s classification specified in
clause 17—Minimum rates, inclusive of the disabilities allowance. Where an employee is
entitled to an additional all-purpose allowance, this allowance also forms part of that
employee’s ordinary hourly rate’
[95] The variation determination will be amended accordingly.
(ii) Clauses 4.2 and 4.3
[96] Clause 4.2 of the Exposure Draft states:
‘This award covers any employer which supplies labour on an on-hire basis in the cotton
ginning industry set out in clause 4.1 in respect of on-hire employees in classifications
covered by this award, and those on-hire employees, while engaged in the performance of
work for a business in that industry. This subclauseClause 4.2 operates subject to the
exclusions from coverage in this award.’
[97] Clause 4.3 of the Exposure Draft states:
‘This award covers employers which provide group training services for trainees engaged in
the cotton ginning industry and/or parts of the cotton ginning industry set out in clause 4.1 and
those trainees engaged by a group training service hosted by a company to perform work at a
54 Ai Group submission, 20 September 2019, at para 44.
55 Ai Group submission, 20 September 2019, at para 45.
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location where the activities described in clause 4.1 are being performed. This
subclauseClause 4.3 operates subject to the exclusions from coverage in this award.’
[98] Ai Group submits that the references to the ‘cotton ginning industry’ are potentially
confusing and ambiguous because:
‘Unlike most industry awards, the coverage of the Cotton Ginning Award is not expressed by
reference to an industry, the scope of which is defined by the award. Rather, the award is
simply expressed to apply to employers operating cotton ginneries and their employees in the
classification structure of the award.’56
[99] For these reasons Ai Group submits that the changes proposed to the first sentences of
clauses 4.2 and 4.3 should not be made.
[100] In its written submission the AWU stated that it did not agree with the concerns raised
by Ai Group about references to the industry coverage of the award.57 At the hearing on
11 October 2019 the AWU sought some clarification as to the amendment proposed by Ai
Group.58 Ai Group replied that they sought to amend clauses 4.2 so that the first sentence
reads:
‘This award covers any employer which supplies labour on an on-hire basis in the industries
set out in clause 4.1 in respect of on-hire employees in classifications covered by this award,
and those on-hire employees, while engaged in the performance of work for a business in that
industry.’
[101] In relation to clause 4.3 it is proposed that the first sentence be amended to read:
‘This award covers employers which provide group training services for trainees engaged in
the industry and/or parts of the industry set out in clause 4.1 and those trainees engaged by a
group training service hosted by a company to perform work at a location where the activities
described in clause 4.1 are being performed.’
[102] The AWU did not oppose the changes sought.59
[103] We agree with Ai Group and will amend the first sentences in clauses 4.2 and 4.3 in
the variation determination accordingly.
(iii) Schedule A: Summary of hourly rates of pay
[104] Ai Group submit that the footnotes in Schedule A refer to an industry allowance and
should be amended to instead refer to the disability allowance.60 We agree that the footnotes
should refer to the disabilities allowance; the amendment proposed is related to item (i)
above. We will amend the variation determination accordingly.
56 Ai Group submission, 20 September 2019, at para 46.
57 AWU submission, 9 October 2019, at para 17.
58 Transcript, 11 October 2019, at PN181 – PN187.
59 Transcript, 11 October 2019, at PN174 – PN187.
60 Ai Group submission, 20 September 2019, at para 55.
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4.9 Funeral Industry Award 2010
[105] The AWU raise three issues in relation to the Exposure Draft.
(i) Clause 11.2
[106] Clause 11.2 states:
‘11.2 For each ordinary hour worked a casual employee must be paid:
(a) the minimum hourly rate for the appropriate classification; and
(b) a loading of 25% of the minimum hourly rate.’
[107] The AWU submits:
‘This should be amended to read: “For each ordinary hour worked a casual employee must be
paid…” The word “ordinary” does not appear in clause 10.5(b) of the current award. The
wording in the exposure draft may constitute a significant substantive change. The issue is
before the Casual Overtime Full Bench and the wording from the current award should be
maintained until the issue is resolved in those proceedings.’61
[108] There was no opposition to the AWU’s proposal at the hearing on 11 October 2019.
We agree with the AWU’s submission and will delete the word ‘ordinary’ from clause 11.2 in
the Exposure Draft and amend the draft determination accordingly.
(ii) Schedule A.1.4
[109] The AWU submits that the overtime rate for afternoon shift is not 120% as stated in
the first column and the correct rates appear in clause 20.6.62
[110] Clause 20.6 states:
‘20.6 Overtime for shiftworkers—Afternoon shiftworker
(a) All time worked in excess of, or outside the ordinary working hours in clause 18.2
20.2 by a shiftworker, or on a shift other than a rostered shift, will be paid at 170% of
the minimum hourly rate for the first three3 hours and 220% thereafter.
(b) When less than 7 hours 36 minutes’ notice has been given to the employer by a relief
employee that they will be absent from work, and the employee whom the relief
employee should relieve is not relieved and is required to continue to work on the
employee’s rostered day off, the unrelieved employee will be paid 220% of the
minimum hourly rate.
(c) This cClause 20.6 operates to the exclusion of clause 18.520.5.’
61 AWU submission, 9 October 2019, at para 18.
62 AWU submission, 9 October 2019, at para 19.
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[111] The issue raised has a degree of complexity and turns on how the rates are calculated,
which depends on the construction of clauses 22.3 and 22.6. We propose to seek further
submissions in respect of this issue and will seek the views of the Fair Work Ombudsman.
(iii) Schedule A.1.5
[112] The AWU submits that it is unclear why a 100% ‘Day shift’ column has been
included in an overtime rates table.63 A 100% ‘Day Shift’ column has been included for
transparency reasons; it is the base upon which the other rates in the schedule are calculated.
4.10 Hydrocarbons Industry (Upstream) Award 2010
[113] There are two issues in relation to this award.
(i) Clause 11.4
[114] Clause 11.4 states:
‘11.4 For each ordinary hour worked, a casual employee must be paid no less than:
(a) the ordinary hourly rate; and
(b) a loading of 25% of the ordinary hourly rate,
for the classification in which they are employed.’
[115] The AWU submits:
‘This should be amended to read: “For each ordinary hour worked, a casual employee must be
paid no less than…” The word “ordinary” does not appear in clause 10.4(b) of the current
award. The wording in the exposure draft may constitute a significant substantive change. The
issue is before the Casual Overtime Full Bench and the wording from the current award
should be maintained until the issue is resolved in those proceedings.’64
[116] There was no opposition to the AWU’s proposal at the hearing on 11 October 2019.
We agree with the AWU’s submission and will delete the word ‘ordinary’ from the first line
in clause 11.4 from the Exposure Draft and amend the variation determination accordingly.
(iii) Clauses 22.1(b) and (c)
[117] The second issue concerns clauses 22.1(b) and (c), which state:
‘22.1 Definition of overtime
…
(b) For a part-time employee, overtime is any time worked in excess of the part-time
employee’s ordinary hours of work in clause 10—Part-time employees.
63 AWU submission, 9 October 2019, at para 20.
64 AWU submission, 9 October 2019, at para 21.
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(c) For a casual employee overtime is any time worked in excess of the ordinary hours
prescribed for casual employees in clause 11—Casual employees.’
[118] The AWU submits that ‘[r]eference should be added to clause 13 – Ordinary hours of
work because the span of ordinary hours for all employees appears in this clause’.65
[119] There was no opposition to the AWU’s proposal at the hearing on 11 October 2019.
We agree with the AWU’s submission and will amend the variation determination to add a
cross reference to clause 13, in clauses 22.1(b) and (c).
4.11 Mining Industry Award 2010
[120] Clause 2 of the Exposure Draft defines ‘casual ordinary hourly rate’ as follows:
‘casual ordinary hourly rate means the hourly rate for a casual employee for the employee’s
classification specified in clause 15—Minimum rates and classifications plus the casual
loading and 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.’
[121] Ai Group submit that the definition of ‘casual ordinary hourly rate’ in clause 2 of the
Exposure Draft be amended to make clear that where an employee is entitled to all-purpose
allowances in addition to the industry allowance, they are to be included in the casual
ordinary hourly rate in addition to the industry allowance. Ai Group submits that the current
definition may be read to suggest that such allowances are to be so included in lieu of the
industry allowance.66
[122] Ai Group make a similar submission in relation to the definition of ‘ordinary hourly
rate’ and submit that this definition should also be amended to make clear that where an
employee is entitled to all-purpose allowances in addition to the industry allowance, they are
to be included in the ordinary hourly rate in addition to the industry allowance.67
[123] The AWU has no issue with the changes proposed by Ai Group.68
[124] The AMWU does not agree that either the definition of ‘casual ordinary hourly rate’
or the ‘ordinary hourly rate’ are capable of being misconstrued in the manner suggested by Ai
Group.69 If the Commission is of the view that the definitions require amendments then the
AMWU submits that the following form of words would be appropriate:70
‘casual ordinary hourly rate means the hourly rate for a casual employee for the employee’s
classification specified in clause 15 – Minimum rates and classifications plus the casual
loading and the industry allowance. Where an employee is entitled to an additional all-
purpose allowance, this allowance also forms part of that employee’s ordinary hourly rate.
65 AWU submission, 9 October 2019, at para 22.
66 Ai Group submission, 20 September 2019, at para 64.
67 Ai Group submission, 20 September 2019, at para 65.
68 AWU submission, 9 October 2019, at para 23.
69 AMWU reply submission, 9 October 2019, at para 26.
70 AMWU reply submission, 9 October 2019, at para 27.
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ordinary hourly rate means the hourly rate for an employee’s classification specified in
clause 15 – Minimum rates and classifications plus the industry allowance. Where an
employee is entitled to an additional all-purpose allowance, this allowance also forms part of
that employee’s ordinary hourly rate.’
[125] Ai Group agreed that the issue it had raised could be resolved by the insertion of the
word ‘also’, consistent with the approach taken in the Cement, Lime and Quarrying Award
and the Cotton Ginning Award 2010.71 We agree and will amend the definitions of ‘casual
ordinary hourly rate’ and ‘ordinary hourly rate’ in clause 2. The variation determination will
be amended accordingly.
[126] During the course of the hearing on 11 October 2019 it emerged that the issue of
casual overtime rates is contested in this award.72 We will hold a conference of interested
parties in respect of this award to discuss how to proceed. We will not issue a variation
determination in respect of this award at this time.
4.12 Nursery Award 2010
[127] The AWU raises an issue in relation to clause 13.2 of the Exposure Draft. Clause 13.2
states:
‘13.2 Ordinary hours of work
(a) The ordinary hours of work for full-time employees are an average of 38 per week but
not exceeding 152 hours in 28 days.
(b) The ordinary hours of work may be worked between the hours of 6.00 am and 6.00
pm on any 5 out of 7 days. Provided that the ordinary hours of work may be worked
between 6.00 am and 9.00 pm on one day per week between Monday and Friday.
(c) The ordinary hours of work will not exceed 8 hours on any day, provided that by
arrangement between an employer and an employee ordinary working hours greater
than 8 but not exceeding 10 on any day may be worked subject to:
(i) the employer and employee concerned being guided by relevant work health
and safety provisions;
(ii) suitable roster arrangements being made; and
(iii) proper supervision being provided.’
[128] The AWU submits that ‘[t]o ensure compliance with s 147 a new subclause should be
inserted’, as follows:
‘The ordinary hours of work for casual employees are the lesser of:
(i) an average of 38 per week but not exceeding 152 hours in 28 days; or
71 Transcript, 11 October 2019, at PN197 – PN199.
72 Transcript, 11 October 2019, at PN202 – PN203.
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(ii) the hours required to be worked by the employer.’73
[129] There was no opposition to the AWU’s proposal at the hearing on 11 October 2019.
We agree with the submission put and will insert the proposed new subclause into clause
13.2. We will amend the variation determination accordingly.
4.13 Oil Refining and Manufacturing Award 2010
[130] Six issues arise in respect of this award.
(i) Clause 11.3(a)
[131] Clause 11.3(a) states:
‘11.3 Casual loading
(a) For each ordinary hour worked, a casual employee must be paid:
(i) the ordinary hourly rate; and
(ii) a loading of 25% of the ordinary hourly rate,
for the classification in which they are employed.’
[132] The AWU submits:
‘This should be amended to read: “For each ordinary hour worked, a casual employee must be
paid…” The word “ordinary” does not appear in clause 10.3(b) of the current award. The
wording in the exposure draft may constitute a significant substantive change. The issue is
before the Casual Overtime Full Bench and the wording from the current award should be
maintained until the issue is resolved in those proceedings.’74
[133] There was no opposition to the AWU’s proposed amendment to clause 11.3(a) at the
hearing on 11 October 2019. We agree with the submission put and will amend the variation
determination accordingly. During the course of the hearing on 11 October 2019, Ai Group
raised a related issue, namely that the cross reference to ‘clause 22.5’ in clause 22.5(b) of the
Exposure Draft should be amended to ‘clause 22’.75 There was no opposition to Ai Group’s
proposed amendment and we will amend the variation determination accordingly.
(ii) Schedule C.2.1
[134] Schedule C.2.1 of the Exposure Draft provides as follows:
‘The following expense-related allowances will be payable to employees in accordance
with clause 19.3:
73 AWU submission, 9 October 2019, at para 24.
74 AWU submission, 9 October 2019, at para 25.
75 Transcript, 11 October 2019, at PN206 – PN223.
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Allowance Clause $ Payable
Meal allowance—
overtime
19.3(a) 14.70 per meal per meal
…’
[135] Clause 19.3(a)(i) states as follows:
‘An employee will be paid a meal allowance of $14.70 on each occasion that the
employee is entitled to a rest break during overtime work in accordance with clause
22—Overtime.’
[136] The AMWU submit that the term ‘per meal’ in the payable column should be changed
to ‘per rest break’, to better reflect the frequency with which the allowance is payable in
accordance with clause 19.3(a)(i).76
[137] Ai Group also raise an issue in relation to the table and submit that, consistent with
clause 19.3(a), the reference to ‘per meal’ should be replaced with ‘per occasion’.77
[138] In the October 2019 Statement we expressed the provisional view that the table in
Schedule C.2.1 be amended as proposed by Ai Group. At the hearing on 11 October 2019
there was no opposition to our provisional view. We confirm that the table in Schedule C.2.1
will be amended as proposed by Ai Group.
(iii) Clauses 23.2 and 23.7(b)
[139] Clauses 23.2 and 23.7(b) state:
‘23.2 Calculation of penalties
Any payments under this clause 23 are in substitution of any other loadings or penalty rates.
…
23.7 Method of calculation
…
(b) Any payments under this clause 23 are in substitution of any other loadings or penalty
rates.’
[140] The AWU submit that the content in these two provisions is repeated.78 In the October
2019 Statement we indicated our agreement with the submission put and expressed the
provisional view that clause 23.2 be deleted. There was no opposition to our provisional view
at the hearing on 11 October 2019. We confirm that clause 23.2 will be deleted and the
variation determination will be amended accordingly.
76 AMWU submission, 30 September 2019, at paras 9-12.
77 Ai Group submission, 20 September 2019, at para 77.
78 AWU submission, 9 October 2019, at para 26.
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(iv) Clause 23.3
[141] Clause 23.3 of the Exposure Draft states:
‘23.3 Shiftwork penalties
(a) A shiftworker or continuous shiftworker must be paid 115% of the ordinary hourly
rate for each ordinary hour worked on afternoon shift or night shift.
(b) A shiftworker must be paid 120% of the ordinary hourly rate for each ordinary hour
worked on permanent afternoon shift.
(c) A shiftworker or continuous shiftworker must be paid 130% of the ordinary hourly
rate for each ordinary hour worked on permanent night shift.’
[142] In relation to 23.3—shiftwork penalties, Ai Group submit that clause 23.3 does not
properly characterise the amounts payable under that clause and that the heading of the clause
suggests that the clause requires the payment of a penalty whereas the clause prescribes a rate
that is payable for such time worked; the amount prescribed is not a penalty that is payable in
addition to the base rate of pay.79 Ai Group submit that the title to clause 23.3 be amended,
from ‘Shiftwork penalties’ to ‘Shiftwork penalty rates’.
[143] The AMWU accepts the central premise of Ai Group’s contention but does not agree
that any amendment to the clause or the heading is necessary as the substantive content of
clause 23.3 leaves the reader in no doubt as to what is required to be paid.80
[144] In the October 2019 Statement we expressed the provisional view that the title to
clause 23.3 be amended as proposed by Ai Group. There was no opposition to our
provisional view at the 11 October 2019 hearing. We confirm that the title to clause 23.3 will
be amended as proposed by Ai Group.
(v) Clauses 18.1(a)(i) and 18.2(b)(i)
[145] Ai Group submit that the purpose and effect of the words “(other than clause 18.1)” in
clause 18.1(a)(i), and “(other than clause 18.2)” in clause 18.2(b)(i) is unclear and the words
should be deleted.81 The AMWU82 and AWU83 agree with Ai Group.
[146] In the October 2019 Statement we indicated our agreement with the submission put
and expressed the provisional view that the bracketed words be deleted.84 There was no
opposition to our provisional view at the 11 October 2019 hearing. We confirm that the
bracketed words in clauses 18.1(a)(i) and 18.2(b)(i) will be deleted.
79 Ai Group submission, 20 September 2019, at para 72.
80 AMWU reply submission, 9 October 2019, at paras 31-32.
81 Ai Group submission, 20 September 2019, at paras 70-71.
82 AMWU reply submission, 9 October 2019, at para 29.
83 AWU submission, 9 October 2019, at para 26.
84 Ai Group submission, 20 September 2019, at paras 70-71.
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(vi) Schedule B3 rates
[147] Ai Group state that it is their understanding that there is a disagreement between the
interested parties regarding the proper approach to calculating various rates contained at
Schedule B.3 of the Exposure Draft, including public holiday rates, shiftwork rates and
weekend penalty rates.85 Ai Group submit that by virtue of clause 24.3(b) of the award,
casual employees are not entitled to the casual loading where overtime rates, shiftwork
penalties, weekend penalties or public holiday penalties are payable.86 They submit that the
award should not be varied to include B.3 until the Full Bench in AM2017/51 (Overtime for
causals) has finalised these matters.
[148] The AMWU disputes Ai Group’s construction of the award but is not opposed to the
table of rates being inserted after AM2017/51 is finalised. The AMWU also notes that there
are no casual overtime rates in clause B.3 and depending on the outcome of the proceedings
in AM2017/51 parties should be entitled to request that such rates be included in the tables in
B.3.87
[149] In the October 2019 Statement we expressed the provisional view that the contested
tables not be included in the variation determination until these matters have been finalised in
AM2017/51. There was no opposition to our provisional view at the 11 October 2019
hearing. We will delete the relevant tables from the variation determination.
4.14 Pharmacy Industry Award 2010
[150] The Association of Professional Engineers, Scientists and Managers Australia
(Professionals Australia) notes that the decision [2019] FWCFB 3949 and determination
PR709577 varying clauses 17 and 19 of the Pharmacy Award contain an operative date of
1 October 2019, and that these variations should also be included in the Exposure Draft to
ensure that it contains all relevant provisions applying at the time it is published.88
[151] In the October 2019 Statement we indicated our agreement with the submission put
and expressed the provisional view that the Exposure Draft and variation determination be
amended to reflect determination PR709577. There was no opposition to our provisional
view at the hearing on 11 October 2019. We confirm our view and will amend the variation
determination accordingly.
[152] The Pharmacy Guild of Australia has raised a number of issues regarding the Plain
Language draft in submissions dated 15 March and 18 September 2019. As set out in a
Statement89 these matters will be the subject of a conference before the President on
Tuesday, 26 November 2019 at 9.30 am.
85 Ai Group submission, 20 September 2019, at para 74.
86 Ai Group submission, 20 September 2019, at paras 74-76.
87 AMWU reply submission, 9 October 2019, at paras 34-35.
88 APESMA submission/Professionals Australia Submission, 20 September 2019.
89 [2019] FWCFB 6899 at [152]. NB an amended notice of listing will be issued.
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4.15 Premixed Concrete Award 2010
[153] Four issues arise in respect of this award.
(i) Definition of ‘ordinary hourly rate’
[154] Clause 2 of the Exposure Draft defines ‘ordinary hourly rate’ as follows:
ordinary hourly rate means the hourly rate for an employee’s classification specified in
clause 16—Minimum rates, 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.
[155] Ai Group submit that the definition of ‘ordinary hourly rate’ in clause 2 of the
Exposure Draft be amended to make clear that where an employee is entitled to all-purpose
allowances in addition to the industry allowance, they are to be included in the ordinary
hourly rate in addition to the industry allowance. Ai Group is concerned that the current
definition may be read to suggest that such allowances are to be so included in lieu of the
industry allowance.90
[156] At the hearing on 11 October 2019, Ai Group agreed that the issue it had raised could
be resolved by the insertion of the word ‘also’ consistent with the approach taken in the
Cement, Lime and Quarrying Award, the Cotton Ginning Award and the Mining Award.91
We agree and will amend the definition of ‘ordinary hourly rate’ in clause 2. The variation
determination will be varied accordingly.
(ii) Clause 11.2(a)
[157] Clause 11.2(a) states:
‘11.2 Casual loading
(a) For each ordinary hour worked, a casual employee must be paid:
(i) the ordinary hourly rate for the classification in which they are employed;
and
(ii) a loading of 25% of the ordinary hourly rate for the classification in which
they are employed.’
[158] The AWU submits:
‘This should be amended to read: “For each ordinary hour worked, a casual employee must be
paid…” The word “ordinary” does not appear in clause 10.5(b) of the current award. The
wording in the exposure draft may constitute a significant substantive change. The issue is
90 Ai Group submission, 20 September 2019, at para 80.
91 Transcript, 11 October 2019, at PN234 – PN236.
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before the Casual Overtime Full Bench and the wording from the current award should be
maintained until the issue is resolved in those proceedings.’92
[159] There was no opposition to the AWU’s proposed amendment at the 11 October 2019
hearing. We agree with the submission put and will amend clause 11.2(a) and the variation
determination accordingly.
(iii) Clause 20.2
[160] Clause 20.2 states:
‘20.2 Overtime rates
Where an employee works overtime the employer must pay to the employee the
overtime rates as follows:
For overtime worked
on
Overtime rate Casual overtime rate
(includes casual
loading)
Minimum
payment
% of ordinary hourly rate
Monday to Friday –
first 2 hours
150% 175% -
Monday to Friday –
after 2 hours
200% 225% -
Saturday – first 2 hours 150% 175% 4 hours
Saturday – after 2 hours 200% 225% 4 hours
Sunday all day 200% 225% 4 hours
…’
[161] The AWU submits:
‘A row for overtime on public holidays should be inserted with 250% and 275% for casual
employees and clause 20.2 should then be cross-referenced in clause 27.2. Otherwise, the
exposure draft only prescribes a penalty rate for ordinary hours on public holidays in clause
21.1. Clause 27.3 of the current award prescribes a double time and a half rate for all work on
public holidays.’93
[162] There was no opposition to the AWU’s proposed amendment at the 11 October 2019
hearing. We agree with the submission put and will amend the table at clause 20.2 and the
variation determination accordingly. Further, as Ai Group pointed out94 the table also deals
with minimum payments and there is no minimum payment required for work on a public
holiday. Accordingly the table will not prescribe a minimum payment for public holidays.
92 AWU submission, 9 October 2019, at para 28.
93 AWU submission, 9 October 2019, at para 29.
94 Transcript, 11 October 2019, at PN237 – PN243; Ai Group submission, 23 October 2019 at [10]-[11].
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4.16 Real Estate Industry Award 2010
[163] Schedule B—Summary of Hourly Rates of Pay, at table B.2.2 sets out rates of pay for
Adult casual employees for “overtime on rostered day off” and clause 13.3(a) of the
Exposure Draft reads:
‘13.3 Rostered time off
(a) An employee, other than a casual, will be allowed either one and a half or
rostered days free of duty each week.’
[164] Given casuals appear to be excluded from the operation of clause 13.3, the rates
included in the table at B.2.2 appear to be in error. We propose to delete these rates from the
variation determination. Should any party oppose this course of action, they are to advise the
Commission by no later than 4pm on Friday, 8 November 2019. If no opposition is
received, the amendment will be made and a variation determination will be issued.
4.17 Salt Industry Award 2010
[165] Five issues arise in respect of the Exposure Draft.
(i) Clause 4.4
[166] Clause 4.4 reads:
‘This award covers employers which provide group training services for apprentices and/or
trainees engaged in the industry and/or parts of industry set out at clause 4.1 and those
apprentices and/or trainees engaged by a group training service hosted by a company to
perform work at a location where the activities described in clause 4.2 are being performed.
This subclause Clause 4.4 operates subject to the exclusions from coverage in this award.’
[167] Ai Group submit that consistent with the approach adopted in other Exposure Drafts,
the word ‘salt’ should be inserted before ‘industry’ the first time it appears in the second line
at clause 4.4.95 There was no opposition to Ai Group’s proposed amendment to clause 4.4 at
the hearing on 11 October 2019. We agree with the submission put and will amend clause 4.4
to insert the word ‘salt’ before the word industry. The variation determination will be
amended accordingly.
(ii) Clause 22.1
[168] Clause 22.1 of the Exposure Draft states:
‘22.1 Shiftwork penalties
(a) A shiftworker whilst on afternoon or night shift must be paid 115% of the ordinary
hourly rate.
95 Ai Group submission, 20 September 2019, at para 92.
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(b) A shiftworker on permanent night shift must be paid 130% of the ordinary hourly
base rate of pay.’
[169] Ai Group contend that the ‘shiftwork penalties’ at clause 22.1 are inappropriately
characterised. They state that the heading of the clause suggests that the provision requires
the payment of a penalty, however the clause prescribes a rate that is payable for such time
worked; the amount prescribed is not a penalty that is payable in addition to the base rate of
pay.96 Ai Group propose an amendment to the heading to address this issue as follows:
‘22.1 Shiftwork penaltyies rates’
[170] In the October 2019 Statement we expressed the provisional view that the heading to
clause 22.1 be amended as proposed by Ai Group. There was no opposition to our
provisional view at the 11 October 2019 hearing. We confirm our view and will amend the
variation determination accordingly.
(iii) Clause 11.3(a)
[171] Clause 11.3(a) reads:
‘11.3 Casual loading
(a) For each ordinary hour worked, a casual employee must be paid:
(i) the ordinary hourly rate for their classification; and
(ii) a loading of 25% of the ordinary hourly rate.
(b) The loading constitutes part of the casual employee’s rate of pay for all
purposes.
(c) The casual loading is paid instead of annual leave, paid personal/carer’s leave,
notice of termination, redundancy benefits and the other conditions of full-time
or part-time employment.’
[172] The AWU submits:
‘This should be amended to read: “For each ordinary hour worked, a casual employee must be
paid…” The word “ordinary” does not appear in clause 10.3(b) of the current award. The
casual loading is paid for all purposes so there should be no dispute about it being paid on
overtime.’97
[173] During the course of the hearing on 11 October 2019 it emerged that the issue of
casual overtime rates is contested in this award.98 We propose to hold a conference of
interested parties in respect of this award to discuss how to proceed. We will not issue a
variation determination in respect of this award at this time.
96 Ai Group submission, 20 September 2019, at paras 94-95.
97 AWU submission, 9 October 2019, at para 32.
98 Transcript, 11 October 2019, at PN258 – PN263.
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(iv) Clause 21.1
[174] Clause 21.1 reads:
‘21.1 Definition of overtime
(a) For a full-time employee (including a shiftworker), overtime is any time
worked in excess of an average of 38 hours per week.
(b) For a part-time employee (including a shiftworker), hours worked in excess of
the employee’s ordinary hours (determined in accordance with clause 10.3)
will be paid at the appropriate overtime rate.
(c) For a casual employee (including a shiftworker), overtime is anytime worked
in excess of an average of 38 hours per week.’
[175] The AWU submits:
‘These provisions are misleading because they indicate overtime is only payable when an
employee works in excess of their maximum weekly ordinary hours. However, overtime is
also payable for hours outside those specified in clause 13-Ordinary hours of work. Reference
to “or outside the ordinary hours specified in clause 13-Ordinary hours of work” should be
added into clause 21.1(a),(b) and (c).’99
[176] The proposed change is contested by Ai Group. At the hearing on 11 October 2019
the AWU indicated that it would give further consideration to this issue and would discuss it
further with Ai Group and ABI.100 In its submission of 23 October 2019 Ai Group submitted
that:
‘12. Ai Group, ABI and the AWU agree that in order to address the concern raised by the
AWU about clause 21.1 of the exposure draft, it should be deleted.’101
[177] In accordance with the views of the interested parties we will delete clause 21.1.
(v) Schedule B.1.1
[178] The AWU submits:
‘It isn’t clear whether a day worker can work ordinary hours on a public holiday under this
award. The 200% rate appears directed at shiftworkers.’102
[179] In its submission of 23 October 2019, Ai Group advised that the AWU no longer
presses its submission in respect of Schedule B.1.1.103
99 AWU submission, 9 October 2019, at para 33.
100 Transcript, 11 October 2019, at PN268 – PN276..
101 Ai Group submission, 23 October 2019 at [12].
102 AWU submission, 9 October 2019, at para 34.
103 Ai Group submission, 23 October 2019 at [14].
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4.18 Seafood Processing Award 2010
[180] The AWU raises two issues in relation to the Exposure Draft. The first relates to
clause 11.2(a), which states:
‘11.2 Casual loading
(a) For each ordinary hour worked, a casual employee must be paid:
(i) the minimum hourly rate; and
(ii) a loading of 25% of the minimum hourly rate,
for the classification in which they are employed.
(b) The loading constitutes part of the casual employee’s all-purpose rate.’
[181] The AWU submits:
‘This should be amended to read: “For each ordinary hour worked, a casual employee must be
paid…” The casual loading is paid for all purposes so there should be no dispute about it
being paid on overtime.’104
[182] The second issue concerns Schedules A.2.4 and A.2.5. The AWU submits that the
reference to ‘% of minimum hourly rate’ should be ‘% of casual ordinary hourly rate.’105
[183] There was no opposition to the AWU’s proposed amendments at the 11 October 2019
hearing. We agree with the submissions put and will amend clause 11.2(a) and Schedules
A.2.4 and A.2.5, and the variation determination, accordingly.
4.19 Silviculture Award 2010
[184] The AWU raises two issues in relation to this Exposure Draft. The first concerns
clause 15.1, which states:
‘15.1 Minimum rates
15.1 Employees are entitled to the following minimum wages for the classification in
which they are employed:
104 AWU submission, 9 October 2019, at para 35.
105 AWU submission, 9 October 2019, at para 37.
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Classification Minimum
weekly wage
rate
$
(full time
employee)
Minimum
hourly
wage rate
$
Ordinary
weekly rate
$
(full time
employee)
Silviculture and afforestation worker
grade 1
792.80 20.86 859.40
Silviculture and afforestation worker
grade 2
823.80 21.68 891.40
Silviculture and afforestation worker
grade 3
838.80 22.07 906.80
Silviculture and afforestation worker
grade 4
859.20 22.61 927.90
Silviculture and afforestation worker
grade 5
875.00 23.03 944.20
Silviculture and afforestation worker
grade 6
882.30 23.22 951.70
[185] The AWU submits that the inclusion of an ‘Ordinary weekly rate’ column ‘appears
inconsistent with other exposure drafts.’106 At the hearing on 11 October 2019 the reason for
the inclusion of the ‘Ordinary weekly rate’ column was explained and the AWU did not press
the point.107
[186] The second issue concerns clause 20.12(a), which states:
‘20.12 Sundays and public holidays
…
(a) Subject to this clause 20.12, the provisions of clause 27—Public holidays will apply
to shiftworkers.’
[187] The AWU submits that ‘it appears the public holiday rate of 250% of the ordinary
hourly rate should be inserted here or the references are circular.’108
[188] There was no opposition to the AWU’s submission at the hearing on 11 October 2019.
We agree with the submission put that clause 20.12(a) should be amended to provide greater
clarity. We will amend the variation determination accordingly.
4.20 Surveying Award 2010
[189] Clause 11.2 of the Exposure Draft states:
‘For each ordinary hour worked, a casual employee will be paid the minimum hourly
rate for the work performed. In addition, a casual employee will receive a 25%
loading.’
106 AWU submission, 9 October 2019, at para 39.
107 Transcript, 11 October 2019, at PN287 – PN289.
108 AWU submission, 9 October 2019, at para 40.
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[190] Clause 11.2(b) of the current award states:
‘11.2 Casual employment
…
(b) A casual employee will be paid per hour 1/38th of the weekly rate prescribed in this
award for the work performed. In addition, a casual employee will receive a 25%
loading instead of annual leave, personal/carer’s leave, bereavement leave and public
holidays.’
[191] The AMWU submits that the change in the language between clause 11.2 of the
Exposure Draft and clause 11.2(b) of the current award may constitute a substantive change.
The AMWU acknowledges that the drafting of clause 11.2 has been the same as previous
iterations of the Exposure Draft, however it has only just identified this issue in this round of
publication. It proposes the following amendment to clause 11.2 of the Exposure Draft:
‘For each ordinary hour worked, a casual employee will be paid the minimum hourly rate for
the work being performed. In addition, a casual employee will receive a 25% loading.’109
[192] There was no opposition to the AMWU’s proposed amendment to clause 11.2 at the
hearing on 11 October 2019. We agree with the submission put and will vary clause 11.2 in
the variation determination accordingly.
4.21 Water Industry Award 2010
[193] In relation to the note under the heading in clauses 15.4—Higher duties, and
18.3(c)—Transfers, travelling and working away from normal starting point, Ai Group
submit that there are no substantive matters before the Commission. It refers to
correspondence from United Voice withdrawing its claim.110
[194] In the October 2019 Statement we indicated our agreement with Ai Group’s
submission and expressed the provisional view that the note be deleted. There was no
opposition to our provisional view at the hearing on 11 October 2019 and we confirm that the
note will be deleted and the variation determination amended accordingly.
4.22 Wool Storage, Sampling and Testing Award 2010
[195] Four issues arise in relation to the Exposure Draft.
(i) Clause 11.3(a)
[196] Clause 11.3(a) reads:
109 AMWU submission, 30 September 2019, at paras 14-19. Reference has been made to 24% loading, not 25% loading.
110 Ai Group submission, 20 September 2019, at paras 103 and 106.
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‘11.3 Casual loading
(a) For each ordinary hour worked, a casual employee must be paid:
(i) the minimum hourly rate in clause 16.1; and
(ii) a loading of 25% of the minimum hourly rate.’
[197] The AWU submits:
‘This should be amended to read: “For each ordinary hour worked, a casual employee must be
paid…” The word “ordinary” does not appear in clause 10.3(b) of the current award. The
wording in the exposure draft may constitute a significant substantive change. The issue is
before the Casual Overtime Full Bench and the wording from the current award should be
maintained until the issue is resolved in those proceedings.’111
[198] The proposed amendment is opposed by ABI and Ai Group. The issue of casual
overtime rates is contested. We propose to hold a conference of interested parties in respect
of this award to discuss how to proceed. We will not issue a variation determination in
respect of this award at this time.112
(ii) Clause 22.2
[199] Clause 22.2 of the Exposure Draft states:
‘22.2 Shiftwork penalties
(a) A shiftworker or continuous shiftworker whilst on afternoon shift or night shift must
be paid 115% of the minimum hourly rate.
(b) A shiftworker or continuous shiftworker whilst on permanent night shift must be paid
130% of the minimum hourly rate.’
[200] Ai Group is concerned that the shiftwork penalties in clause 22.2 are inappropriately
classified. They submit that the clause purportedly requires the payment of a penalty. The
clause however prescribes a rate that is payable for such time worked; the amount prescribed
is not a penalty that is payable in addition to the base rate of pay.113 Ai Group propose that
the heading of the clause be changed to ‘Shiftwork penalty rates’. In the October 2019
Statement we expressed the provisional view that the title to clause 22.2 be amended as
proposed by Ai Group. There was no opposition to our provisional view at the hearing on 11
October 2019 and we confirm that the title of clause 22.2 will be amended as proposed by Ai
Group. The variation determination will be amended accordingly.
(iii) Schedule B.1
[201] The AWU submits:
111 AWU submission, 9 October 2019, at para 41.
112 Transcript, 11 October 2019, at PN292 – PN299.
113 Ai Group submission, 20 September 2019, at para 114.
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‘The rates tables do not appear correct. The tables indicate day workers can work ordinary
hours on the weekend and shiftworkers cannot – whereas the opposite is correct. The weekend
and public holiday penalty rates should be moved from the day work table to the shiftwork
tables for permanent and casual employees.’114
[202] Ai Group opposed the AWU’s interpretation of the relevant award provisions. The
issues in contention were the subject of further discussions between ABI, Ai Group and the
AWU. In its submission of 23 October 2019, Ai Group reported the parties’ agreement to the
following changes being made to the Exposure Draft:
‘(a) The deletion of the ‘Saturday’ and ‘Sunday’ column from B.1.1.
(b) The insertion of the following columns at B.1.2:
(i) Saturday, first 2 hours: 150% of the minimum hourly rate;
(ii) Saturday, after 2 hours: 200% of the minimum hourly rate;
(iii) Sunday: 200% of the minimum hourly rate; and
(iv) Public holidays: 250% of the minimum hourly rate.’115
[203] We will make the proposed changes to the Exposure Draft and will amend the draft
variation determination accordingly.116
(iv) Schedule C.1.1
[204] Ai Group lastly note that the standard rate prescribed in Schedule C.1.1 has not been
updated to reflect the outcome of the previous Annual Wage Review decision. They also note
that the allowances in the table at C.1.1 are incorrect.117 In the October 2019 Statement we
expressed the provisional view that the standard rate in Schedule C.1.1 and the allowances in
the table at C.1.1 be corrected as proposed by Ai Group. There was no opposition to our
provisional view at the hearing on 11 October 2019. We confirm our view. The standard rate
in Schedule C.1.1 and the allowances in the table in C.1.1 will be corrected as proposed by Ai
Group. We will amend the variation determination accordingly.
5. Next Steps
[205] As mentioned earlier, in the September 2019 Decision we expressed the provisional
view that the variation of the 37 modern awards in Tranche 1 in accordance with the draft
variation determinations was, in respect of each of the awards, necessary to achieve the
modern awards objective. No submissions were made contesting our provisional view in
respect of the following 14 awards:
114 AWU submission, 9 October 2019, at para 42.
115 Ai Group submission, 23 October 2019 at [15].
116 In the last published Exposure Draft B.1.2 was incorrectly identified as B.1.1(a).
117 Ai Group submission, 20 September 2019, at paras 121-122.
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Book Industry Award 2010
Car Parking Award 2010
Coal Export Terminals Award 2010
Corrections and Detentions (Private Sector) Award 2010
Fire Fighting Industry Award 2010
Gardening and Landscaping Services Award 2010
Legal Services Award 2010
Market and Social Research Award 2010
Medical Practitioners Award 2010
Port Authorities Award 2010
Racing Industry Ground Maintenance Award 2010
Sporting Organisations Award 2010
State Government Agencies Award 2010
Travelling Shows Award 2010
[206] We confirm our provisional views and will issue the variation determinations in
respect of each of these awards in the terms published on 2 September 2019, subject to an
amendment to delete the note in the Schedule of Rates (see [21] – [23] above).118 These
variation determinations will be published by no later than 25 November 2019 and will
commence operation on 4 February 2020.
[207] Minor typographical or other errors have been identified in the Exposure Drafts
relating to the 14 awards listed in [24] above. As noted at [26] above we propose to correct
all of the errors identified in the footnotes to [24] and will amend the variation determinations
accordingly. In 13 of these 14 awards other, more substantive, award related issues were
raised. In the other award with minor errors - the Electrical Power Industry Award 2010 - no
other issues were raised.
[208] Subject to the correction of the identified errors there was no opposition to our
provisional view that the variation of the Electrical Power Industry Award 2010 in
accordance with the draft variation determination is necessary to achieve the modern awards
objective. We confirm our provisional view and will issue a variation determination in
respect of this award in the terms published on 2 September 2019, subject to amendments to
correct the errors identified in the footnotes to [24]; to remove any contested overtime for
casuals and casual conversion terms or schedules (see [12] – [18]); and to delete the note in
the Schedule of Rates (see [21] – [23]).
[209] In Section 4 of this decision we dealt with more substantive award specific issues in
respect of 21 of the Tranche 1 modern awards. In three of those 21 modern awards casual
overtime rates are contested. These three awards are:
Mining Industry Award 2010
Salt Industry Award 2010
Wool Storage, Sampling and Testing Award 2010
118 Administrative changes will be made to correct the rounding of the junior weekly rates contained in Schedule B to the
Gardening and Landscaping Services Award 2010 (including a change to the preamble). One administrative change will
be made to correct an error in the Racing Industry Ground Maintenance Award 2010 to clarify that the ‘morning work’
hourly rate does not apply to the ‘Tradesperson’ classification. Administrative changes will be made to correct rounding
of rates in Schedule A of the Fire Fighting Industry Award 2010.
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[210] Conferences of interested parties will be convened by the Commission in respect of
each of these awards to discuss how to proceed. We will not issue variation determinations in
respect of these three awards at this time. Conferences will be listed on the following dates:
Salt Industry Award 2010 – 11:30am on Tuesday 26 November 2019;
Mining Industry Award 2010 – 12:30pm on Tuesday 26 November 2019; and
Wool Storage, Sampling and Testing Award 2010 – 11am on Friday 29 November
2019.
[211] A Notice of Listing will be published shortly in respect of each conference.
[212] In one of these 21 awards – the Funeral Industry Award 2010 – one of the issues
raised has a degree of complexity and turns on how the rates are calculated, which depends
on the construction of clauses 22.3 and 22.6. We propose to seek further submissions in
respect of this issue and will seek the views of the Fair Work Ombudsman. We will not issue
a variation determination in respect of this award at this time.
[213] In another modern award, the Real Estate Industry Award 2010, we proposed to delete
rates of pay in Schedule B relating to Adult Casual employees. Parties have until 4pm on
Friday, 8 November 2019 to advise if they oppose the proposed deletion. Should there be no
opposition received, the variation determination will be issued.
[214] Decisions have been made in respect of the disputed issues in the remaining 17 of the
awards in Section 4, namely:
Aluminium Industry Award 2010
Ambulance and Patient Transport Industry Award 2010
Animal Care and Veterinary Services Award 2010
Aquaculture Industry Award 2010
Banking, Finance and Insurance Award 2010
Cement, Lime and Quarrying Award 2010
Cemetery Industry Award 2010
Cotton Ginning Award 2010
Hydrocarbons Industry (Upstream) Award 2010
Nursery Award 2010
Oil Refining and Manufacturing Award 2010
Pharmacy Industry Award 2010
Premixed Concrete Award 2010
Seafood Processing Award 2010
Silviculture Award 2010
Surveying Award 2010
Water Industry Award 2010.
[215] The variation determinations published on 2 September 2019 in respect of the
17 modern awards at [214] above will be amended to correct any of the errors identified in
[24] above; to remove any contested overtime for casuals and casual conversion terms or
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Schedules (see [12] – [18] above); to delete the note in the Schedule of Rates (see [21] – [23]
above); and to make the variations we have determined in Section 4 of this decision (the
amended variation determinations).119 We confirm our provisional view that, with the
exception of the Pharmacy Industry Award 2010,120 the variation of the modern awards in
[214], in accordance with the amended variation determinations is, in respect of each of the
awards, necessary to achieve the modern awards objective.
[216] If any of the 32 modern awards which we propose to vary is the subject of another
variation determination between the publication of the variation determinations arising from
this decision (on 25 November 2019) and when those variation determinations commence
operation (on 4 February 2020), a conference will be convened to provide all parties
interested in the affected award with an opportunity to be heard in relation to the appropriate
course of action.
PRESIDENT
Printed by authority of the Commonwealth Government Printer
PR713430
Appearance list
R. Bhatt for the Australian Industry Group
N. Dabarera for United Voice
G. Miller with J. Rabaud for the AMWU
L. Izzo with H. Hamberger for ABI and NSWBC
E. Silus for CFMMEU-Mining Managing Division
S. Crawford for the Australian Workers Union
119 Administrative changes will be made to correct rounding of rates contained in Schedule B of the Oil Refining and
Manufacturing Award 2010 and Schedule B of the Surveying Award 2010.
120 The outstanding issues in the Pharmacy Industry Award 2010 are being dealt with separately as part of the Plain
Language Project. See also [152].
