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 DECEMBER 2019
4 yearly review of modern awards – finalisation of Exposure Drafts and variation
determinations – Tranche 2.
Chapters Paragraph
1 Background [1]
2 General issues [7]
2.1 The Tranche 1 changes [7]
2.2 Operative Date [9]
2.3 Overtime for casuals [13]
2.4 Expression of numbers [15]
2.5 Coverage for Group Training Organisation [19]
3 Correcting minor errors [23]
4 The uncontentious awards [27]
5 The Transport Group of Awards [29]
5.2 Road Transport (Long Distance Operations) Award
2010
[31]
5.3 Road Transport and Distribution Award 2010 [48]
5.4 Transport (Cash in Transit) Award 2010 [87]
5.5 Waste Management Award 2010 [97]
6 Other Tranche 2 Awards – award specific issues
6.1 Airline Operations – Ground Staff Award 2010 [101]
6.2 Air Pilots Award 2010 [119]
6.3 Alpine Resorts Award 2010 [125]
6.4 Architects Award 2010 [128]
6.5 Asphalt Industry Award 2010 [132]
6.6 Cleaning Services Award 2010 [145]
6.7 Commercial Sales Award 2010 [151]
[2019] FWCFB 8569
DECISION
E AUSTRALIA FairWork Commission
[2019] FWCFB 8569
2
6.8 Concrete Products Award 2010 [154]
6.9 Contract Call Centres Award 2010 [166]
6.10 Dry Cleaning and Laundry Industry Award 2010 [171]
6.11 Educational Services (Schools) General Staff – Award
2010
[174]
6.12 Gas Industry Award 20102010 [201]
6.13 Higher Education Industry – General Staff – Award
2010
[204]
6.14 Hospitality Industry (General) Award 2010 [206]
6.15 Labour Market Assistance Industry Award [216]
6.16 Local Government Award 2010 [223]
6.17 Manufacturing and Associated Industries and
Occupations Award 2010
[244]
6.18 Meat Industry Award 2010 [309]
6.19 Pastoral Award 2010 [322]
6.20 Pharmaceutical Industry Award 2010 [363]
6.21 Poultry Processing Award 2010 [381]
6.22 Storage Services and Wholesale Award 2010 [387]
6.23 Vehicle Manufacturing, Repair, Services and Retail
Award 2010
[393]
7 Conclusion [395]
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 412 awards in Tranche 2:
Aboriginal Community Controlled Health Services Award
Airline Operations—Ground Staff Award
Air Pilots Award
Airport Employees Award
Alpine Resorts Award
Architects Award
Asphalt Industry Award
Cleaning Services Award
1 [2019] FWCFB 6077
2 Aircraft Cabin Crew Award 2010 and Live Performance Award 2010 moved to Tranche 3 (pursuant to paragraph [2] of
decision [2019] FWCFB 6861).
https://www.fwc.gov.au/documents/decisionssigned/html/2019fwcfb6861.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2019fwcfb6077.htm
[2019] FWCFB 8569
3
Clerks—Private Sector Award
Commercial Sales Award
Concrete Products Award
Contract Call Centres Award
Educational Services (Schools) General Staff Award
Educational Services (Post-Secondary Education) Award
Dry Cleaning and Laundry Industry Award
Gas Industry Award
Higher Education Industry—Academic Staff—Award
Higher Education Industry—General Staff—Award
Hospitality Industry (General) Award
Hydrocarbons Field Geologists Award
Labour Market Assistance Industry Award
Local Government Industry Award
Mannequins and Models Award
Manufacturing and Associated Industries and Occupations Award
Maritime Offshore Oil and Gas Award
Meat Industry Award
Pastoral Award
Passenger Vehicle Transportation Award
Pharmaceutical Industry Award
Poultry Processing Award
Professional Diving Industry (Industrial) Award
Professional Diving Industry (Recreational) Award
Rail Industry Award
Restaurant Industry Award
Road Transport (Long Distance Operations) Award
Road Transport and Distribution Award
Stevedoring Industry Award
Storage Services and Wholesale Award
Transport (Cash in Transit) Award
Vehicle Manufacturing, Repair, Services and Retail Award
Waste Management Award
[3] On 14 October 2019 Exposure Drafts were published for each of these awards with
amendments made in tracked changes 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 a decision issued on 14 October 20193 (the 14 October 2019 decision) we expressed
the provisional view that the variation of the modern awards in Tranche 2 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 timetable below:
3 [2019] FWCFB 6861
https://www.fwc.gov.au/documents/decisionssigned/html/2019fwcfb6861.htm
[2019] FWCFB 8569
4
Date Event
14 October 2019 Publish final Exposure Drafts and draft variation
determinations
27 November 2019 Parties to file submissions on final Exposure Drafts and
draft variation determinations
9 December 2019 Parties to file submissions in reply
17 and 18 December
20194
Full Bench Hearing
[5] Submissions have been filed by:
Association of Consulting Architects Australia (ACAA) on 27 November 2019
Association of Independent Schools (AIS) on 27 November 2019
Australian Business Industrial (ABI) on 27 November 2019 and 9 December 2019
Australian Hotels Association (AHA) on 27 November 2019 and 9 December 2019
Australian Industry Group (Ai Group) on 27 November 2019 and 9 December 2019
Australian Manufacturing Workers’ Union (AMWU) on 27 November 2019, 27
November 2019 and 9 December 2019
Australian Workers’ Union (AWU) on 27 November 2019 and 9 December 2019
Construction, Forestry, Maritime, Mining and Energy Union – Manufacturing
Division on 6 November 2019
Federation of Parents and Citizens Associations of NSW on 5 December 2019
Group of 8 Universities (Go8) on 27 November 2019
Independent Education Union of Australia (IEU) on 5 December 2019 and 9
December 2019
Local Government Associations (LGA) on 27 November 2019
Motor Trades Organisations (MTO) on 27 November 2019 and 9 December 2019
National Farmers’ Federation (NFF) on 27 November 2019
National Road Transport Association (NatRoad) on 18 November 2019, 3
December 2019 (Road Transport and Distribution Award) and 3 December 2019
(Road Transport (Long Distance Operations) Award)
Rail, Tram and Bus Union Australia (RTBU) on 27 November 2019
Transport Workers Union (TWU) in relation to the following awards:
o Passenger Vehicle Transportation Award on 21 November 2019
o Airline Operations – Ground Staff Award on 21 November 2019
o Road Transport (Long Distance Operations) Award on 21 November
2019
o Waste Management Award on 21 November 2019
o Transport (Cash in Transit) Award on 21 November 2019
o Road Transport and Distribution Award on 21 November 2019
Qantas on 26 November 2019
Community and Public Sector Union (CPSU) on 9 December 2019
United Workers’ Union (UWU) on 9 December 2019
4 The Transport Awards were heard on 17 December 2019, all other awards in Tranche 2 were heard on 18 December 2019.
https://www.fwc.gov.au/sites/awardsmodernfouryr/am201917-sub-reply-uwu-091219.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201917-sub-cpsu-091219.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/am201917-252-sub-qg-261119.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/am2014212-sub-twu-211119.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/am201917-215-sub-twu-211119.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/am2014216-sub-twu-211119.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/am201917-211-sub-twu-211119.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/am201917-211-sub-twu-211119.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/am2014254-sub-twu-211119.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/am2014208-sub-twu-211119.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/am201917-sub-rtbu-271119.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/am201917-211-sub-reply-natroad-031219.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/am201917-212-sub-reply-natroad-031219.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/am201917-212-sub-reply-natroad-031219.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201917-212-sub-natroad-181119.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014239-sub-nff-271119.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/am201917-93-sub-mto-091219.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/am201917-93-sub-mto-271119.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201917-234-sub-walga-271119.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/am201917-sub-reply-ieu-091219.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/am201917-sub-reply-ieu-091219.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201917-sub-ieu-051219.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201917-sub-g8u-271119.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201917-sub-pcf-051219.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201917-264-sub-cfmmeu-061119.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201917-254-sub-awu-091219.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/am201917-66-sub-awu-271119.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201917-sub-amwu-091219.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201917-93-sub-amwu-271119.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201917-93-sub-amwu-271119.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201917-sub-amwu-271119.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201917-sub-aig-091219.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/am201917-sub-aig-271119.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/am201917-sub-aha-091219-201615.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/201917-ors-sub-aha-271119.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201917-sub-abinswbc-101219.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/am201917-69-sub-abinswbc-271119.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/am201917-sub-ais-271119.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201917-257-sub-acaa-271119.pdf
[2019] FWCFB 8569
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[6] A Statement issued on 11 December 20195 (December 2019 Statement) summarised
the submissions made and expressed a number of provisional views in respect of some of the
points advanced. The issues raised in respect of the Tranche 2 awards were the subject of
hearings at on Tuesday 17 December 2019 and Wednesday 18 December 2019.6
2. General issues
2.1 The Tranche 1 changes
[7] During the finalisation of Exposure Drafts in Tranche 1, we issued 2 decisions – one
on 24 October 20197 (the 24 October Decision) and the other on 25 November 20198 (the 25
November Decision) – in which we determined that the following common drafting
amendments would be made to all awards in Tranche 1:
The removal of any contested overtime for casuals rates from the rates of pay
Schedules (see [12] – [18] of the 24 October Decision).
Casual conversion clauses in the 28 awards that had such clauses prior to the Casual
and Part-time Decision9 will not be redrafted during the review and the Exposure
Drafts will be amended to re-insert the current award term10.
The deletion of the ‘note’ in the Schedules of Rates (see [21] – [23] of the 24
October Decision).
The year in the title of the award will be amended to 2020.
In awards where the coverage clause refers to other modern awards, the year in the
title of those awards will be amended to either 2010 or 2020 as appropriate.
The reference to the summary of hourly rates of pay schedule in the minimum rates
clause will be converted from an information box to a Note. The reference to
‘penalties’ in this note will be corrected to ‘penalty rates’.
The reference to the Miscellaneous Award 20XX will be amended to Miscellaneous
Award 2010. This will be varied to the Miscellaneous Award 2020 when the review
of the Miscellaneous Award is finalised.
Some formatting changes will be made to the summary of hourly rates of pay
schedules to facilitate subsequent variation determinations following an Annual
Wage Review. The content of these schedules will not be changed.
5 [2019] FWCFB 8398
6 Notice of listing, 18 December 2019
7 [2019] FWCFB 7173
8 [2019] FWCFB 7854
9 [2017] FWCFB 3541
10 See [2019] FWCFB 7062
https://www.fwc.gov.au/documents/decisionssigned/html/2019fwcfb7062.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2017fwcfb3541.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2019fwcfb7854.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2019fwcfb7173.htm
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/nol-181219-am201917.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/2019fwcfb8398.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/181219-am201917.htm
https://www.fwc.gov.au/sites/awardsmodernfouryr/171219_am201917.htm
[2019] FWCFB 8569
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[8] In the December 2019 Statement we confirmed that each of these amendments would
also be made to the Tranche 2 awards. In addition to those amendments, four general issues
were raised in the submissions.
2.2 Operative Date
[9] Ai Group submit that a period of not less than 3 months should be allowed to lapse
between the issue of final determinations varying each award and the variations becoming
operative.11 In the 24 October decision we confirmed that the following approach would be
taken:
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.
2. Variation determinations for the Tranche 1 awards will be published no later than
25 November 2019 and 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.
[10] In the December 2019 Statement we expressed the provisional view that the Tranche 2
awards would follow the same process. Final variation determinations would be issued no
later than 14 February 2020 and the variation determinations would commence operation on 6
April 2020.
[11] At the hearing on 18 December 2019 Ai Group submitted that the variation
determinations should commence operation on 4 May 2020 rather than 6 April 2020, to
provide interested parties with some additional time to review the determination. Other parties
expressed the view that the uncontentious variation determinations should operate from an
earlier date (i.e. earlier than 4 May 2020).
[12] We have decided that all final variation determinations will be issued no later than 14
February 2020. In respect of the uncontentious awards (set out at [27]) the variation
determinations will commence operation on 13 April 2020. The remaining variation
determinations will commence operation on 4 May 2020.
2.3 Overtime for casuals
[13] ABI notes that multiple Tranche 2 Exposure Drafts contain summary tables setting out
overtime rates of pay for causal employees in the Schedule of Hourly Rates of Pay and that
the calculation of some of these rates is currently in dispute as part of the ‘Overtime for
Casuals’ matter.12
11 Ai Group submission, 27 November 2019 at [3].
12 ABI submission, 27 November 2019 at [7].
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201917-69-sub-abinswbc-271119.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201917-sub-aig-271119.pdf
[2019] FWCFB 8569
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[14] ABI submits that, consistent with the approach taken with the first tranche of Exposure
Drafts,13 the Commission should publish the updated Exposure Drafts without any schedules
containing overtime rates for casuals. 14 These schedules can be reinserted into the Tranche 2
awards, if appropriate, after the relevant Full Bench hands down its decision. We agree and
will adopt the approach proposed.
2.3 Expression of Numbers
[15] ABI notes that one of the recent amendments to the Exposure Drafts has been to write
numbers as figures instead of words.15 This reflects the recommendations in paragraph 8.8 of
the guidelines for plain language drafting of modern awards. 16
[16] ABI submits that the ‘voluntary employee contributions’ clause in many of the
Exposure Drafts has been overlooked in this regard17. For consistency, ABI submits that the
terms “three month’s written notice” should be expressed as “3 month’s written notice”.18
[17] In the December 2019 Statement we posed the following question to ABI: Is the
Commission’s capacity to vary the ‘voluntary employee contributions’ clause in modern
awards in the context of the 4 yearly review constrained by s 156(2)(c) (see the definition of
‘default fund term’ in s 149(2))?
[18] ABI submitted that the relevant clause was not a ‘default fund term’ as defined and on
that basis s 156(2)(c) did not constrain the Commission from dealing with the matter and,
further, such an amendment would not constitute a ‘variation’ as it did not vary the rights and
obligations arising under the clause. In response to an indication by the Commission that we
were minded to take a cautious approach to the issue ABI did not press the point. Accordingly
we need say nothing more about this issue and will not make the change proposed.
2.4 Coverage for Group Training Organisations
[19] ABI notes that many of the Exposure Drafts contain coverage clauses relating to group
training organisations. ABI submits that consequential changes made to these clauses has
highlighted a potential anomaly.19 ABI provides the Pharmaceutical Industry Award 2010 as
an example:
‘This award covers employers which provide group training services for trainees engaged in the
pharmaceutical industry and/or parts of that industry.’ (emphasis added).20
[20] ABI submits that it is unclear what is meant by “and/or parts of that industry” as any
trainee engaged in a part of the pharmaceutical industry, must also, by definition, be engaged
13 [2019] FWCFB 7173 at [17]
14 ABI submission, 27 November 2019 at [8].
15 ABI submission, 27 November 2019 at [9].
16 Plain language guidelines, 20 June 2017 at [8.8].
17 ABI submission, 27 November 2019 at [11]
18 ABI submission, 27 November 2019 at [12].
19 ABI submission, 27 November 2019 at [13]-[14].
20 ABI submission, 27 November 2019 at [15].
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201917-69-sub-abinswbc-271119.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201917-69-sub-abinswbc-271119.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201917-69-sub-abinswbc-271119.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201917-69-sub-abinswbc-271119.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201615-guidelines-200617.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201917-69-sub-abinswbc-271119.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201917-69-sub-abinswbc-271119.pdf
https://www.fwc.gov.au/documents/decisionssigned/html/2019fwcfb7173.htm
[2019] FWCFB 8569
8
in the pharmaceutical industry as a whole.21 The use of the words “and/or”, suggests that an
employee may be engaged in a part of the pharmaceutical industry, but not the pharmaceutical
industry. ABI further notes that the words “and/or parts of that industry” do not appear in
clause 4.1, the general coverage clause, or clause 4.4, the on-hire coverage clause. ABI
submits that similar clauses apply to other Exposure Drafts.22
[21] ABI questions whether different coverage provisions should apply to group training
organisations that do not apply to other employers. 23 It also submits that the use of “and/or” is
also inconsistent with paragraph 5.10 of the guidelines for plain language drafting of modern
awards. 24 ABI proposed that the words ‘and/or parts of that industry’ be deleted.
[22] At the hearing on 18 December 2019 some parties submitted that they were not aware
of the current wording creating any difficulties and expressed concern that there may be
unintended consequences flowing from the proposed change. In light of the expressed
concerns ABI did not press its proposal.
3. Correcting minor errors
[23] The December 2019 Statement noted that a number of the submissions received had
identified minor typographical errors and omissions in the exposure drafts and draft variation
determinations. The minor errors proposed to be corrected were set out at [20] of the
December 2019 Statement.
[24] At the hearing on 18 December 2019 Ai Group withdrew aspects of its submissions
directed at correcting minor errors in respect of the Airline Operations – Ground Staff Award
and the Cleaning Services Award. Further, the Local Government Associations sent an email
drawing attention to some errors in the table in schedule C.1.1 of the Local Government
Industry Award.
[25] The final list of minor typographical errors or omissions is as follows:
Airline Operations—Ground Staff Award25
Alpine Resorts Award26
Asphalt Industry Award27
21 ABI submission, 27 November 2019 at [16].
22 ABI submission, 27 November 2019 at [17]-[19].
23 ABI submission, 27 November 2019 at [20].
24 ABI submission, 27 November 2019 at [21].
25 Ai Group submission, 27 November 2019 at [7], the reference in clause 7.4(a) to clause 19 should be amended to clause
19.2; at [11], a space should be added between ‘(b)’ and ‘continuous’;
26 AWU submission 27 November 2019 at [6], in clause 21.3(e)(ii) the numeral “8” should be inserted where the word
“eight” has been deleted in the first dot point.
27 Ai Group submission, 27 November 2019 at [19], the reference in clause 7.2 to clause 16 should be amended to clause
16.1; at [20], the reference in clause 11.4(a)(i) to clause 15.1 should be amended to clause 15; at [21] the full stop should
be deleted after ‘8’ and ‘9’ in the daylight savings example, these will instead be amended ‘7.5’, ‘8.5’ and ‘9.5’ as
appropriate; at [22], in clause 14.2 the words ‘seven and a half’ have been struck out and not replaced, ‘7.5’ should be
inserted; at [23], in clause 20.1(a) the reference to ‘clause 20.1’ should be replaced with ‘clause 20’; at [24] in clause
20.2(b)(iv) the reference to clause 20.2(b) should be amended to clause 202(b)(iv); at [25], in clause 20.5(a) the words
‘employees’ and ‘of pay’ after ‘200%’ should be deleted. ABI submission, 27 November 2019 at [48], the example box
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201917-69-sub-abinswbc-271119.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201917-sub-aig-271119.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201917-66-sub-awu-271119.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201917-sub-aig-271119.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201917-69-sub-abinswbc-271119.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201917-69-sub-abinswbc-271119.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201917-69-sub-abinswbc-271119.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201917-69-sub-abinswbc-271119.pdf
[2019] FWCFB 8569
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Cleaning Services Award28
Clerks—Private Sector Award29
Commercial Sales Award30
Concrete Products Award31
Contract Call Centres Award32
Dry Cleaning Award33
Educational Services (Schools) General Staff Award34
Gas Industry Award35
Labour Market Assistance Industry Award36
Local Government Industry Award37
Manufacturing and Associated Industries and Occupations Award38
under clause 13.6 includes the numbers ‘7 ½’ and ‘8 ½’. These should be amended to ‘7.5’ and ‘8.5’; at [49], in the
second row of the table in clause B.2.1, the number ‘5 and a half’ appears - this should be amended to ‘5.5’. AWU
submission 27 November 2019 at [6], the numeral ‘7.5’ in clause 14.2(a) has not been added.
28 Ai Group submission, 27 November 2019 at [29] the note at the top of Schedule B has been retained in error and should be
deleted.
29 Ai Group submission, 27 November 2019 at [31], the reference to ‘clause 10.3 in clause 11.5(k)(ii) should be amended to
‘clause 10.2’. ABI’s 27 November 2019 at [26]-[27], the words ‘as it existed prior to that variation’ should be added at
the end of clause 1.3 for clarity and consistency with other awards.
30 Ai Group submission, 27 November 2019.
31 Ai Group submission, 27 November 2019 at [37], the reference in clause 7.2 to clause 17 should be amended to clause
17.1; at [38] the reference to clause 11.3(c) in clause 11.3(b) should be amended to 11.3(b); at [40], in clause 13.1(b) the
reference to ‘clause 13.1’ should be amended to .clause 13’. AWU submission 27 November 2019 at [14], in clause 21.7:
The word “rate” is missing at the end of the sentence.
32 Ai Group submission, 27 November at [42], the various references to “2010” may require updating; at [43], the reference
to “clause 10.3” should be replaced with “clause 10.4”, consistent with clause 26.1(a) in the current award; at [44], the
separate numbering of the provision under the heading ‘Rates not cumulative’ in clause 20.10 is not necessary and should
be deleted; at [45], ‘penalties’ should be replaced with ‘penalty rates’ in clause 20.10. . CPSU submission in reply, 9
December 2019 at [3] agrees various references to “2010” be updated; at [3] agrees reference to clause 10.3 be replaced
with clause 10.4; at [3] agrees “Rates not cumulative” should be deleted; at [3] agrees “penalties” should be replaced in
clause 20.10.
33 CFMMEU (Manufacturing) submission 6 November 2019 at [6] the cross reference in clause 11.8(i) should refer to clause
34, not clause 33; at [8]-[9]: the note appears twice in clause 20 and should only appear once.
34Ai Group submission, 27 November 2019 at [33]-[34], a backwards slash has been included in error in the daily laundry
allowance in clause C.2.1.
35 Ai Group submission, 27 November at [50], the cross reference in clause 13.1(c) to ‘clause 8—Types of employment’
should be replaced with ‘clause 10—Part-time employees”; at para 53, the end of clause 20.8(g) [sic.] should be amended
by adding “s” at the end of “week” and a full stop; at para 54, a space should be inserted after “Definitions” in clause
C.1.1.
36Ai Group submission, 27 November 2019 at [50]-[51], at clause 21.6(a) and clause D.10.1, there is a space missing between
‘4’ and ‘hours’. Also see ABI submission 27 November 2019 at [50] and [51].
37 Local Government Associations submission, 27 November 2019 at [6], the words ‘and clause 22.3’ should be added at the
end of clause 13.1(i); at [7], in clause 17.2(b), the word ‘clause’ should be inserted before ’17.2(a)’; at [8], the word
‘service’ should be amended to ‘services’ in clauses 19.2(f), 21.7(a) and 22.2(a); at [9], in clause 19.3(a)(ii) the word ‘be’
should be inserted between ‘will’ and ‘paid’; at [10.1], in clause 19.4(a)(i) the word ‘normal’ should be inserted before
‘starting’ where is first appears in the clause; at [10.2] clause 19.4(a)(ii) should be deleted as the term is already defined
in clause 2, the subsequent subclauses should then be renumbered and the cross-references within the clause amended
accordingly; at [11], in clause 20.3(c) the word ‘subclauses’ should be amended to ‘clauses at [12], in NOTE 1 to clause
23.7, a space should be inserted between ‘clause 23.7(d) and ‘may result’; at [13], in the table at C.1.1, a close
parenthesis should be inserted after 3 references to ‘19.2(c)(iii)’; at [32] – [36], in Schedule C.1.1 the adverse working
conditions allowance for level 1, 2 and 3 are paid hourly, the reference in the table to ‘per week’ should be amended to
read ‘per hour.’ The sleepover allowance is also paid hourly and the reference in the table to ‘per week’ should be
amended to read ‘per hour.’
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Meat Industry Award39
Pastoral Award40
Pharmaceutical Industry Award41
Poultry Processing Award42
Road Transport and Distribution Award43
Storage Services and Wholesale Award44
38 AMWU submission, 27 November 2019 at 25 and 26, the AMWU submit that clause 33.12 be deleted as it no longer
exists, which will result in the renumbering of the subsequent clauses; Clause 33.12 has been retained in error and should
be deleted and subsequent clauses renumbered. AWU submission 27 November 2019 at [19], the cross-reference to
clause 32.2(i) should be clause 32.2(j). Ai Group submission, 27 November at [57], the words in ‘leading boiler attendant
or fireperson—first class’, ‘leading boiler attendant or fireperson—second class’ and ‘ship repairs’ in clause 2 should be
in bold; at [58], the number “(c)” in clause 2 should be deleted before the definition of ‘radio industry’; at [59], the date
in both dot points in clause 4.8(a)(xi) and in clause 4.8(a)(xiii) should be the date when the award is varied to reflect the
terms of the exposure draft; at [60], two commas should be inserted in clause 12.8(c) as follows: “the requirements of the
relevant State/Territory apprenticeship authority and any requirements of the relevant industry committee, which is
currently the Manufacturing and Engineering Industry Reference Committee, with respect to …; at [64], “three3 hours”
appears twice as a typographical error in clause C.1.1; at para 67. an apostrophe should be placed after ‘employees’ in the
title of clause C.2 at [74] and [77], the following words in the headings for column 4 in clauses D.1.3 and D.2.1 should be
deleted because columns 5 deal with the period for payment: ‘per hour unless otherwise stated.’ During the course of the
hearing on 18 December 2019 ABI drew the Commission’s attention to the fact that the ‘footer’ on the exposure draft
refers to an incorrect award code (MA15), it should be MA10.
39 ABI submission, 27 November 2019 at.[52], there is a typographical error in the word ‘predictable’ in 21.6(a). Ai Group
submission, 27 November 2019 at [82], the reference in clause 7.4 to clause 23.1(b)(ii) should be deleted, only clause
23.1(b)(i) contemplates facilitation by majority agreement, at 83, the reference in clause 23.5 to clause 32 should instead
be a reference to clause 33; at [88] the reference in clause 23.5 to clause 32 should be a reference to clause 33.
40 ABI submission, 27 November 2019 at [46], in the table at clause 7.2, the second column in row next to clause 50.9(d)(iv))
includes both ‘rates’ and ‘wages’ in error; delete the word ‘wages’, at [47], in clause 49.5(b)(i) [] the reference to ‘5
thousand’ should be replaced with ‘5000’. AWU submission 27 November 2019 at [23] the cross reference in clause 24.3
should be to clause 44; at [24], the cross-reference in clause 37.1(b)(ii) should be to clause 37.1(a) not clause 30.1(a).
41 ABI submission, 27 November 2019 at [22]-[25], there is a formatting discrepancy with subclause 21.5. The entirety of of
subclause 21.5 is indented into a single paragraph identified as 21.5(a). There are no further paragraphs in the subclause
(i.e. there is no paragraph 21.5(b) or above). This is inconsistent with the ordinary modern award formatting; Ai Group
submission, 27 November 2019 at 94 the reference in clause 2 to clause 15.1 should be replaced with “clause 15.1(a)”.
Clause 15 deals with the minimum rates payable to, for example, juniors and trainees. Consistent with the current clause
3.1 of the award, however, the standard rate is the weekly wage payable to adult employees as prescribed by clause
15.1(a); at [100], the reference in clause C.1 to clause 15.1 should be replaced with “clause 15.1(a)” to ensure consistency
with our suggested amendments to the definition of “standard rate” in clause 2.
42 Ai Group submission, 27 November 2019 at [102]-[104] and [107]-[109], Ai Group submit that within clause 2 definitions,
the definition of standard rate making reference to clause 15 should be replaced with clause 15.1 as clause 15 deals with
minimum rates payable to employees, including juniors and trainees, whereas the standard rate payable to adult
employees is prescribed by clause 15.1; the reference made to clause 15 in the definition of standard rate at clause 2,
should be replaced with clause 15.1; at clause 7.2 facilitative provisions, the reference to clause 21.5 should be replaced
with clause 21.5(b) as subclause (b) is the only facilitative clause; at clause 7.2 facilitative provisions, the reference made
to clause 21.7 be deleted as it is not a facilitative clause; at clause 21.5(e) annual close down, the reference made to
clause 21.10 appears to be an error and therefore should be replaced with clause 21.5; at clause C.1.1 wage-related
allowances, the reference to clause 15 should be replaced with clause 15.1 to ensure consistency with the amendment to
the definition of ‘standard rate’ in clause 2; at clause C.1.1 wage-related allowances, the ‘s’ before 17.2 be deleted.
43 Ai Group submission, 27 November 2019 at [110], Ai Group submit that at clause 19.5(d)(ii) the housing allowance states
in error that the allowance is $3.10, and the allowance should be amended to $3.15 as reflected in table D.2.1
44 Ai Group submission, 27 November 2019 at [119], [121]-[122] and [126], Ai Group submit that at clause 7.3(a)(vi)
facilitation by majority employment, the semicolon and “and” should be deleted and replaced with a full stop; at clause
20.3(f) hours of work, the reference to clause 20.3(c) appears to be made in error and should be replaced with “clause
20.3(d)”; Ai Group further submit that at clause 20.3(f), the terminology used in should be amended from “shift
penalties” to “shift penalty rates” which is consistent with the changes made in clause 20.4; at clause C.1.1 wage-related
allowances, the reference to clause 17.2(a) be replaced with “clause 17.2(a)(i)” for clarity.
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Transport (Cash in Transit) Award45
Vehicle Manufacturing, Repair, Services and Retail Award46
Waste Management Award47
[26] 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 hearings on 17 and 18 December 2019. At those hearings no party opposed
the correction of the identified errors. We will amend the variation determinations
accordingly.
4. The uncontentious awards
[27] In the December 2019 Statement we noted that subject to the correction of minor
errors and the resolution of the general issues it appeared that there were no award specific
issues in relation to the following awards:
Aboriginal Community Controlled Health Services Award
Airport Employees Award
Clerks – Private Sector Award
Educational Services (Post-Secondary Education) Award
Higher Education Industry—Academic Staff—Award
Hydrocarbons Field Geologists Award
Mannequins and Models Award
Maritime Offshore Oil and Gas Award
Passenger Vehicle Transportation Award
Professional Diving Industry (Industrial) Award
Professional Diving Industry (Recreational) Award
Rail Industry Award
Restaurant Industry Award
Stevedoring Industry Award
[28] At the hearing on 18 December 2019 no party identified any award specific issues in
relation to the above awards.
45 Ai Group submission, 27 November 2019 at [128]-[129] insert ‘also’ in the definition of ordinary hourly rate; at [130]
amend clause 15.1(e) to express the penalty/loading as a rate; at [131] replace ‘allowances’ with ‘rates’ in the preamble to
clause 21.8.
46 MTO submission, 27 November 2019 at 1, the words ‘automotive parts interpreter – specialist’ should be in bold in line
with other definitions in clause 2; Ai Group submission, 27 November 2019 at [141], in clause 7.2 the reference to
‘clause 11.6’ should be amended to ‘clause 11.6(g)’; at para 142, clause 11.6(j) has been listed under clause 7.2 and
clause 7.4, it should just be listed under clause 7.4; at para 134, in the table at clause 11.4(a) the words ‘of overtime’
should be inserted in the final two rows to clarify that the rate applies to overtime; at para 144, in clause 11.4(c) the
reference to ‘clause 11.4’ should be amended to ‘clause 11.4(a)’; at para 145, in clause 11.4(c) the reference to ‘clause
16.6(b)’ should be to ‘clause 16.6(c)’
47 Ai Group submission, 27 November 2019 at [163], in clause 11.9(c) insert ’11.9(b)’ after clause at the end the provision; at
[164], the final paragraphs of clause 11.9 should be renumbered clause 11.9(h); at [165] replace ‘of’ with ‘or’ in clause
16.2(a); at [166] in clause 22.6(a) the reference to clause 22.5(a) should be replaced with a reference to clause 22.5; at
[167] in clause 22.7(d) the reference to clause 22.7(a); at [168] clause 27.5(d)(iii) to be renumbered clause 27.5(c) and
clauses 27.5(e) and (f) renumbered clauses 27.5(f) and (g) respectively; at [171] in the second sentence of clause B.2.2(a)
‘movement’ has been misspelt.
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5. The Transport Group of Awards
[29] The submissions filed in respect of these awards are as follows:
Australian Business Industrial & the NSW Business Chamber (ABI) submission on
27 November 2019
Australian Industry Group (Ai Group) submission on 27 November 2019 and 9
December 2019
Australian Manufacturing Workers’ Union (AMWU) submission on 27 November
2019
Australian Workers’ Union (AWU) submission on 27 November 2019 and 9
December 2019
National Road Transport Association (NatRoad) in relation to the following awards:
o Road Transport and Distribution Award on 14 October 2019, 18
November 2019 and 3 December 2019
o Road Transport (Long Distance Operations) Award on 3 December 2019
Transport Workers Union (TWU) in relation to the following awards:
o Passenger Vehicle Transportation Award on 21 November 2019
o Road Transport (Long Distance Operations) Award on 21 November
2019
o Waste Management Award on 21 November 2019
o Transport (Cash in Transit) Award on 21 November 2019
o Road Transport and Distribution Award on 21 November 2019
[30] No award specific issues were raised in relation to the Passenger Vehicle
Transportation award 2010.
5.1 Road Transport (Long Distance Operations) Award
[31] There are two issues in relation to this award.
(i) Clause 4.2
[32] Clause 4.2 contains the definitions that are relevant to the coverage of the Road
Transport (Long Distance Operations) Award (Long Distance Operations Award). ABI
submits that the introductory wording of clause 4.2 should be more clearly expressed.48
[33] The introductory wording to clause 4.2 is as follows:
‘In this award, the following applies to the private transport industry engaged in long
distances operations:’
48 ABI submission, 27 November 2019 at paras. 38-39.
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[34] ABI submits that the definitions apply to the Long Distance Operations Award
generally rather than applying to the “private transport industry engaged in long distance
operations”. ABI submits that the introductory wording to clause 4.2 should be replaced with
the words “In this award:” such that the clause reads:49
‘In this award:
(a) private transport industry means the transportation by road of all materials whether in a
raw or manufactured state, or of livestock, throughout Australia;
(b) long distance operation means any interstate operation, or any return journey where the
distance travelled exceeds 500 kilometres and the operation involves a vehicle moving
livestock or materials whether in a raw or manufactured state from a principal point of
commencement to a principal point of destination. An area within a radius of 32 kilometres
from the GPO of a capital city will be deemed to be the capital city;
(c) interstate operation means an operation involving a vehicle moving livestock or materials
whether in a raw or manufactured state from a principal point of commencement in one State
or Territory to a principal point of destination in another State or Territory. Provided that to be
an interstate operation the distance involved must exceed 200 kilometres, for any single
journey. An area within a radius of 32 kilometres from the GPO of a capital city will be
deemed to be the capital city.’
[35] No party opposed the proposed amendment. We agree with ABI and will amend the
draft variation determination accordingly.
(ii) Clause 25.3(b) Payment for work on a public holiday
[36] The TWU contends that clause 25.3(b) conflicts with clauses 10.8 and 11.4 and
proposes that the issue should be resolved by replacing the reference to 4 hours in clause
25.3(b) with a reference to 8 hours.
[37] Clause 25.3(b) states:
(b) An employee must be paid for a minimum of four4 hours’ work.
[38] Clauses 10.8 and clause 11.4 provide for minimum payments that generally apply
where a casual or part-time employee is engaged to work. This equates to either an 8 hour or
500km minimum payment:
10.8 A part-time employee who is paid by the cents per kilometre method of clause 16.4
must receive a minimum payment per day for 500 km. Where the employee is
engaged according to the hourly driving rate method the minimum payment per day
must be eight8 hours’ pay.
…
11.4 Minimum payment and engagement
49 ABI submission, 27 November 2019 at para. 39.
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(a) A casual employee who is paid by the cents per kilometre method of clause
16.4 must receive a minimum payment per engagement for 500 km.
(b) Where the employee is engaged according to the hourly driving rate method
the minimum engagement must be eight8 hours.
[39] The TWU submits:
‘Full time employees could not undertake a long distance operation, as defined in the Award,
within a four hours period … [and] that clause 25.3(b) should be amended by deleting ‘4
hours’ and replacing it with ‘8 hours’ to overcome the conflict.’50
[40] In reply, Ai Group submits that the TWU proposal should not be adopted and it would
introduce a new entitlement for casual and part-time employees.
[41] We note at the outset that the 4 hour minimum engagement period in clause 25.3(b) of
the exposure draft (clause 26.4 of the current award) was inserted by the Part-time and Casual
Employment Full Bench (see PR599012). The same determination also inserted the part time
clause which the TWU submits conflicts with the minimum engagement on a public holiday
term. The TWU was a participant in those proceedings but did not, at that time, raise the issue
it now raises.
[42] Clause 25.3 deals with the specific issue of payment for full-time and part-time
employees who work on a public holiday and it provides as follows:
25.3 Payment for work on a public holiday—full-time and part-time employees
(a) For all time worked by a full-time or part-time employee on a public
holiday, payment must be made at the following rates:
(i) on Good Friday and the Christmas Day holiday—30% of the
applicable minimum weekly rate specified in clause 16.1(a) plus
payment for the work performed in accordance with the designated
method of payment specified in clause 16—Minimum rates.
(ii) on any other holiday—20% of the applicable minimum weekly rate
specified in clause 16.1(a), plus payment for the work performed in
accordance with the designated method of payment specified in
clause 16—Minimum rates.
(b) An employee must be paid for a minimum of four4 hours’ work.
[43] Under the provision full time and part time employees are entitled to a payment for
either 20% or 30% (depending on the public holiday) of the relevant weekly wage plus
payment for work performed, plus payment for a minimum of 4 hours work.
50 TWU submission Road Transport (Long Distance Operations) Award 21 November 2019 at [4] – [5]
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[44] Clause 25.4 deals with the specific issue of payment for time worked by a casual
employee on a public holiday and provides as follows:
25.4 Payment for work on a public holiday—casual employees
For all time worked by a casual employee on a public holiday, payment must
be made at the following rates:
(a) on Good Friday and the Christmas Day holiday—30% of the applicable
minimum weekly rate specified in clause 16.1(a) plus payment for the
work performed in accordance with the designated method of payment
specified in clause 16—Minimum rates.
(b) on any other holiday—20% of the applicable minimum weekly rate
specified in clause 16.1(a) plus payment for the work performed in
accordance with the designated method of payment specified in clause
16—Minimum rates.
[45] Clause 25.4 requires payment for public holiday work at 20% or 30% (depending on
the public holiday) of the relevant weekly wage plus payment for work performed. The clause
does not contain a requirement for a minimum amount of work to be performed on such days;
though we note that clause 11.4(b) specifies a minimum engagement of 8 hours for casuals
engaged accordingly to the hourly driving rate method.
[46] As a matter of construction we would observe that clauses 25.3 and 25.4 regulate the
payment for work performed on a public holiday and these specific provisions should be read
to the exclusion of the general provisions contained in clauses 10.8 and 11.4, which apply on
other days. The TWU accepts this is so and did not challenge Ai Group’s submission that it
necessarily follows that the TWU accepts that this is the correct interpretation of the current
award.
[47] For the reasons set out above we are not persuaded to replace the reference to 4 hours
in clause 25.3(b) with a reference to 8 hours in the context of proceedings which are directed
at the finalisation of exposure drafts and the conversion of these documents into variation
determinations. The issue raised by the TWU can be the subject of an application to vary the
award, after the award has been varied as a result of these proceedings.
5.2 Road Transport and Distribution Award
[48] During the hearing on 9 October 201951 an issue arose in relation to the Exposure
Draft for this award. The issue concerns clause 12.2 – Minimum wage rates – oil distribution
workers and whether the divisor for the calculation of hourly wage rates for oil distribution
workers is 35 or 38.
[49] The submissions of the interested parties in response to this issue are summarised in a
Background Document dealing with this issue.
51 Transcript of Proceedings, 9 October 2019, see PN474 – PN484
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[50] Clause 23.2 of the current award provides that the ordinary hours for oil distribution
workers ‘will be 35 per week or 70 per two week period.’ Clause 15.2 of the current award
deals with minimum wages and states:
15.2 Minimum wage rates
The minimum wage rates of pay for a full-time adult employee are set out
below:
Transport worker
grade
Minimum weekly rate
$
Minimum hourly rate
$
1 784.60 20.62
2 804.30 21.17
3 814.20 21.43
4 829.20 21.82
5 839.60 22.09
6 849.20 22.35
7 861.60 22.67
8 886.60 23.33
9 901.50 23.72
10 923.80 24.31
[51] The hourly rates in clause 15.2 appear to have been derived by dividing the weekly
wage rate by 38.
[52] In the current exposure draft the minimum hourly rates for oil distribution workers are
set out in clause 17.2 as follows:
17.2 Minimum wage rates – oil distribution workers
An employer must pay adult employees the following minimum wages for
ordinary hours worked by the employee:
Employee classification Minimum weekly rate
(full-time employee)
$
Minimum hourly
rate1
$
Transport Worker Grade 1 784.60 22.42
Transport Worker Grade 2 804.30 22.98
Transport Worker Grade 3 814.20 23.26
Transport Worker Grade 4 829.20 23.69
Transport Worker Grade 5 839.60 23.99
Transport Worker Grade 6 849.20 24.26
Transport Worker Grade 7 861.60 24.62
Transport Worker Grade 8 886.60 25.33
Transport Worker Grade 9 901.50 25.75
Transport Worker Grade 10 923.80 26.39
[53] The hourly rates in clause 17.2 are derived by dividing the weekly wage rate by 35.
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[54] As we have mentioned, the appropriate divisor for calculating the hourly rates for oil
distribution workers is the issue in contention.
[55] NatRoad contends that the correct divisor for oil distribution workers is 38, not 35 and
submits that clause 23 does not establish that the 35 hour week translates to a divisor of 35 in
respect of minimum wages, and that it is silent on this matter. NatRoad also refers to clause
15.2 of the award and submits that this clause is clear in its prescription of the minimum wage
rates as it states “The minimum wage rates of pay for a full-time adult employee are set out
below.” NatRoad submits that there is no qualification to this statement. There is no cross-
reference to clause 23 or a separate reference to oil distribution workers and the manner of the
calculation of their wages.
[56] NatRoad refers to, and relies upon, the relevant Award Modernisation Full Bench
decision,52 and in particular to paragraphs 176 and 177:
‘[176] We acknowledge the fact that the rates in the Transport Workers (Oil Distribution)
Award 2001 and the Transport Workers (L.P. Gas Industry) Award 2005 are higher than rates
in the other pre-reform transport awards. We have considered the history of adjustment of the
rates in those awards. It appears that each award had, in the past, operated as a paid rates award
and it is not apparent that when the awards were simplified the rates were converted to
minimum rates. In any event the majority of rates in other pre-reform transport awards and
NAPSAs weigh heavily in favour of them being reflected in the rates in the RT&D Modern
Award. We need say little about the TWU suggestion that we introduce an 11% industry
allowance in the oil distribution and LP gas sectors. The union did not raise this proposal in
submissions filed in accordance with the published timetable. When it was raised late in the
consultation process little was said to justify it. Such an allowance would normally apply to all
employees in the sector and for all purposes and before we would consider the introduction of
such an allowance employers would need to first be alerted to the fact it was being sought and
then an opportunity, on the days set aside for Full Bench consultations, to make submissions
about it. We have decided that no such provision should be in the RT&D Modern Award. The
rates for these two sectors can be considered further in the context of transitional provisions.
[177] We next turn to the hours clause in the RT&D Modern Award and in particular cl.23
which provides for ordinary hours of work for oil distribution workers. The exposure draft
clause reflected the existing regime of hours being 35 per week or 70 per fortnight. We are
aware that these hours have operated within these sectors of the transport industry for many
decades. We considered whether, in the context of this modern award, the ordinary hours for
this sector of the industry should be less than those for the remaining sectors. In this respect
we acknowledge the submissions of the Oil Industry Industrial Committee as to why two
different hours clauses may not be appropriate. On balance however we have decided it is
appropriate to retain the two minimum ordinary hours clauses. As a consequence of doing so
we have inserted into the facilitative provisions and the provisions of cl.23 additional
flexibilities contained in existing awards. We should indicate that it is not our intention that
these minimum hours of work should extend any further than they have traditionally applied.
It may be that, at an appropriate time, consideration needs to be given to variations to the
award to ensure these constraints are reflected in it.’ (Emphasis added)
[57] NatRoad relies on the underlined sentence in the above extract and submits that this
sentence clearly indicates that minimum wages for oil distribution workers were to be
52 [2009] AIRCFB 345
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reflective of ‘the majority of rates’ in other pre-reform awards and NAPSAs. They contend
that the AIRCFB has separated its consideration of minimum rates in [176] of its decision
from the ordinary hours of work issue that is then addressed in [177] of the decision. NatRoad
submit that the current award reflects this distinction and it should not now be interpreted so
that these issues are conflated.53
[58] NatRoad contend that the Award Modernisation Full Bench considered the pre-
modern awards and that its consideration led to a separation of the issue of minimum wages
from ordinary hours of work. NatRoad submit that this accords with the omission from the
award of any clear statement of a linkage between the ordinary hours of work of oil
distribution workers and the minimum rates of pay as appeared in the federal pre-modern
award, the Transport Workers (Oil Distribution) Award 2001 as follows:
‘Ordinary-time rate means for an employee (other than a casual employee) 1/35th of the wage
rate prescribed in clause 16 - Classifications and wage rates, of this award for the classification
in which the employee is employed.’54
[59] The TWU supports a divisor of 35 and submits that this is the appropriate outcome
having regard to the modern awards objectives, the history of industrial conditions for
employees engaged in the oil distribution sector of the road transport industry and the plain
meaning of the provisions of the award.
[60] The TWU notes that clause 14.2 of the Exposure Draft clearly states that the ordinary
hours of work for oil distribution workers is either 35 hours per week or 70 hours per two
week period. They submit that that other provisions, such as clauses 14.5 and 14.6 refer to oil
distribution workers being engaged on the basis of 5 days or 7 hours per day, consistent with
the conclusion that the industry has historically operated on the basis that oil distribution
workers were engaged for 35 hours per week.55
[61] The TWU also refers to [177] of the Award Modernisation Full Bench decision in
respect of the hours clause for oil distribution workers, noting that the pre-reform regime was
35 hours per week or 70 hours per two week period and place emphasis on the following
sentence ‘…we have decided it is appropriate to retain the two minimum ordinary hours
clauses’.56
[62] TWU further submit that the appropriate divisor when determining the hourly rate for
those pre-reform awards was 1/35 of the minimum weekly rate and that this is also a relevant
distinction.57 They submit that this applied to the following instruments: Transport Industry –
Petroleum & C., Distribution (State) Award at clause 28, and Transport Workers (Oil
Distribution) Award 2001 at clause 13.2.2 pertaining to casual employees.58
53 NatRoad submission dated 18 November 2019 at para [8]
54 NatRoad submission dated 18 November 2019 at para [9]
55 TWU submission dated 21 November 2019 at para [37]
56 TWU submission dated 21 November 2019 at para [43]
57 TWU submission dated 21 November 2019 at para [44]
58 TWU submission dated 21 November 2019 at para [44]
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[63] In response to the TWU’s submission regarding the Full Bench retaining two clauses
about ordinary hours, NatRoad contend that the Full Bench made no separate determination
about two separate minimum wage rates, as was open to it.59
[64] NatRoad also submits that any determination of this matter that reversed what
NatRoad argues is the status quo could then be instituted prospectively. They submit that to
proceed otherwise might provide retrospective effect to the TWU position and therefore
create regulatory risk as shown by the FWO submission.60
[65] We begin our consideration of this issue by commenting on two aspects of NatRoad’s
submission.
[66] The first concerns the decision of the Award Modernisation Full Bench. In our view
that decision, and the passages upon which NatRoad relies, is of little assistance in the
determination of the issue in contention.
[67] The Award Modernisation Full Bench make no express reference to the divisor issue
and according to Mr Ryan (representing ARTIO) who was involved in those proceedings, the
divisor issue was neither addressed in submissions nor raised by the Full Bench.
[68] The second aspect of NatRoad’s submission upon which we wish to comment
concerns the statement made in NatRoad’s reply submission of 3 December 2019 (at [23]):
‘An argument in the alternative which we proffer without prejudice is that this matter could be
deferred with the status quo replicated (i.e. not include separate tables for oil distribution
workers) at least until the TWU brings on evidence and proper merit arguments as was earlier
foreshadowed. Any determination of this matter that reversed what NatRoad argues is the
status quo could then be instituted prospectively. To proceed otherwise might provide
retrospective effect to the TWU position and therefore create regulatory risk about a matter
that has been in doubt, as shown inter alia via the FWO submission referred to in paragraph 17
of this submission.’
[69] We wish to make it clear that we are dealing with the issue in dispute as a matter of
merit; we are not expressing a view on the proper construction of the current award. In such
circumstances we fail to see how any decision we make could be said to ‘provide
retrospective effect to the TWU position’, as contended by NatRoad.
[70] We have concluded that, as a matter of merit, the divisor should be 35. The weekly
ordinary hours of oil distribution workers are 35 and we see no persuasive reason for not
adopting that as the divisor. Indeed to adopt a divisor of 38 would have the effect of denying
oil distribution workers one of the benefits of a 35 hour week.
[71] We also note that a 35 hour divisor sits conformably with the rostered days off
provisions for oil distribution workers. Clause 14.6(a) of the exposure draft provides for a
payment of 7 hours pay (or 7 hours extra annual leave) where an oil distribution employees’
rostered day off falls on a public holiday. If a 38 divisor is adopted then such employees
59 NatRoad submission dated 3 December 2019 at para [20]
60 NatRoad submission dated 3 December 2019 at para [23]
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would receive less than one days’ pay in these circumstances. Such an outcome seems
incongruous.
[72] The variation determination will reflect a 35 divisor for oil distribution employees.
[73] The TWU raise five other issues in respect of this award.
(i) Clause 11.6 Conversion of casual employment
[74] The TWU refers to the provisional view of the Full Bench expressed at [2019]
FWCFB 6894 at [81] in respect of the drafting of the term and supports the inclusion of a
casual conversion clause in the Exposure Draft pending the resolution of issues associated
with the drafting of the term.
[75] Consistent with the views expressed in [2019] FWCFB 6898 at [81] the draft variation
determination will be amended to include the casual conversion clause in the current award.
No party opposed this course.
(ii) Clause 17.2 – Minimum rates – oil distribution workers
[76] The TWU submits that tables C.4.3 and C.4.4 should be amended to include overtime
provisions, as prescribed in clause 11.5.
[77] It does not seem to be contested that under this award casual employees are to be paid
for all overtime worked at overtime rates. The employer parties sought an opportunity to
comment on any amended tables.
[78] The TWU has filed amended C.4.3 and C.4.4 tables and these have been published on
the AMOD website. Any interested party may comment on the TWU’s proposed tables, by
4pm 17 January 2020. All comments are to be sent to amod@fwc.gov.au.
(iii) Clauses 11.5 and 23.1(b) – anomaly
[79] The TWU submits that the interaction of clauses 11.5 and 23.1(b) of the exposure draft
gives rise to an anomaly whereby casual employees who work overtime on a Sunday receive
less than if they work ordinary hours on a Sunday.
[80] The issue raised does not arise from the translation of the current award terms into the
exposure draft; the same issue arises under the current award (see clause 12.5(d) and 28.1(b)).
We do not think it appropriate to deal with this issue in proceedings directed at the finalisation
of exposure drafts and the conversion of these documents into variation determinations. The
issue raised by the TWU can be the subject of an application to vary the award, after the
award has been varied as a result of these proceedings.
(iv) Schedule C2 – Full-time and part-time employees – ordinary and penalty rates
[81] The TWU submits that the percentages in clause 23.2(a) and the footnote should be
reflected in tables C.2.1, C.2.3 and C.2.5.
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[82] There did not appear to be any opposition to the TWU’s proposal – though the
employer representatives sought an opportunity to comment on any variation to Schedule C2.
[83] The TWU has filed a document reflecting its proposed amendments to Schedule C2
which has been published on the AMOD website. Any interested party may comment on the
TWU’s proposal, by 4pm 17 January 2020. All comments are to be sent to
amod@fwc.gov.au.
(v) Schedule C – Tables C.4.1, C.4.2, C.4.3, C.4.4, C.4.5 and C.4.6
[84] The TWU submits that these tables should be amended to include provisions for the
payment of overtime to casuals with the appropriate rates payable to casuals when working
overtime on a Saturday or Sunday.
[85] As mentioned earlier, it does not seem to be contested that under this award casual
employees are to be paid for all overtime worked at overtime rates. The employer parties
sought an opportunity to comment on any amended tables.
[86] The TWU has filed amended C.4.1, C.4.2, C.4.3, C.4.4, C.4.5 and C.4.6 tables and
these have been published on the AMOD website. Any interested party may comment on the
TWU’s proposed tables, by 4pm 17 January 2020. All comments are to be sent to
amod@fwc.gov.au.
5.3 Transport (Cash in Transit) Award
[87] In addition to some minor corrections Ai Group raise two issues.
(i) Clause 21.8 Shift work rates – shiftworkers – afternoon shift
[88] The table at clause 21.8 in the Exposure Draft, prescribes the rate payable for ordinary
hours worked during an “afternoon shift (where continues for fewer than 5 consecutive
afternoons)”:
21.8 Shiftwork allowancesrates – shiftworkers
Shiftworkers must be paid the following shift allowances for all ordinary hours of shift
worked during the following periods:
Shift Shift Casual shift
% of ordinary hourly rate
Afternoon shift
Rotating afternoon shift 115 140
Permanently working afternoon shift 117.5 142.5
Afternoon shift (where continues for fewer
than five5 consecutive afternoons
-first three3 hours 150 175
-after three3 hours 200 225
Night shift
Rotating night shift 120 145
Permanently working night shift 130 155
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Night shift (where continues for fewer than
five5 consecutive nights)
-first three3 hours 150 175
-after three3 hours 200 225
Permanently working alternate night and
afternoon shift:
-when on afternoon shift 117.5 142.5
-when on night shift 130 155
[89] Clause 25.9(c) of the current award is the equivalent provision:
‘(c) Shiftworkers who work on an afternoon or night shift which does not continue for at least
five consecutive afternoons or nights will be paid at the rate of time and a half for the first
three hours and double time after that for each shift.’61
[90] Ai Group submit that the award clause, as opposed to the Exposure Draft, makes clear
that the rate is payable where the shift does not continue for at least five consecutive
afternoons and thus the entitlement to the higher rate is not contingent upon whether the
employee works on the afternoon shift for at least five consecutive shifts.62
[91] To avoid ambiguity, Ai Group propose the following amendment to the description of
the relevant afternoon shift in the Exposure Draft (noting the underlined):
Afternoon shift (where the shift continues for fewer than 5 consecutive afternoons)63
[92] A similar amendment is proposed for clause 21.9:
Night shift (where the shift continues for fewer than 5 consecutive nights)64
[93] No party opposed the proposed amendment. We agree with Ai Group and will amend
the draft variation determination accordingly.
(ii) Schedule A.1.2 Summary of hourly rates – ordinary hourly rate
[94] With respect to schedule A.1.2 summary of hourly rates – ordinary hourly rate, Ai
Group submits that the final sentence wrongly suggests that all applicable all-purpose
allowances need to be added to the rates in the tables and contradicts schedule A.1.1 and the
footnotes to the tables.65
[95] As such, Ai Group propose the final sentence be amended to (noting the underlined):
61 Ai Group submission, 27 November 2019 at [133].
62 Ai Group submission, 27 November 2019 at [134].
63 Ai Group submission, 27 November 2019 at [135]-[136].
64 Ai Group submission, 27 November 2019 at [137].
65 Ai Group submission, 27 November 2019 at [138].
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… Consistent with clause A.1.1, any additional all purpose allowances need to be added to the
rates in the table where they are applicable.66
[96] No party opposed the proposed amendment. We agree with Ai Group and will amend
the variation determination accordingly.
5.4 Waste Management Award
(i) Schedule A.2.3 Full time and part time employees: Overtime
[97] Parties were asked to advise whether the following text should be added to footnote 1
in schedule A.2.3:
‘Payment for work on public holidays is in addition to any amount payable in respect of the
weekly wage (see clause 27.5(b)).’
[98] No party supported the inclusion of the proposed text in footnote 1. We have decided
not to include the proposed text in footnote 1.
(ii) Clause 22.2 Annual leave
[99] Clause 22.2 provides:
22.2 During a period of annual leave an employee will receive a loading calculated on the
wage rate prescribed in clause 15—Minimum rates of this award. Annual leave
loading payment is payable on leave accrued and taken but it is not payable on leave
paid out on termination.
The loading is as follows:
(a) Day work
Employees who would have worked on day work only had they not been on
leave—17.5% or the relevant weekend penalty rates, whichever is the greater
but not both.
(b) Shiftwork
Employees who would have worked on shiftwork had they not been on
leave—a loading of 17.5% or the shift loading (including relevant weekend
penalty rates) whichever is the greater but not both.
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).
66 Ai Group submission, 27 November 2019 at [139].
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[100] At the hearing on 17 December 2019 it was generally agreed that the second sentence
in clause 22.2 be deleted. We agree and will delete the following sentence from clause 22.2 in
the draft variation determination:
‘Annual leave loading payment is payable on leave accrued and taken but is not payable on
leave paid out on termination.’
6. All other Tranche 2 Awards – award specific issues
6.1 Airline Operations—Ground Staff Award
[101] Ai Group, the AMWU, AWU, TWU and Qantas submit that the tables in Schedule B
that deal with overtime for shiftworkers incorrectly state that non-continuous shiftworkers
receive time and a half for work performed on a Sunday67; the affected tables are B.2.4, B.3.4,
B.4.4 and B.5.4.68
[102] It is common ground that the correct rate for work performed on a Sunday is double
time for non-continuous shiftworkers, in accordance with clause 32.1(a)(ii) of the current
Award. This subclause was recently inserted by the Full Bench in AM2018/15 as a result of
resolving the substantive issues within the Award.69
[103] The Exposure Draft currently provides within each of the tables, under ‘Shiftworkers
(except continuous shiftworkers’) the rates for the first two hours and after two hours for
‘Monday to Sunday’. The AMWU and AWU propose that ‘Monday to Sunday’ be amended
to ‘Monday to Saturday’ and a new column providing a rate of 200% for all hours worked on
a Sunday to identify the correct rates.70
[104] Ai Group proposes to amend the tables at clauses B.2.4, B.3.4, B.4.4 and B.5.4 by:
deleting the two columns under the heading ‘Shiftworkers (except continuous
shiftworkers); and
amending the heading ‘Day workers’ to read ‘Day workers and shiftworkers (except
continuous shiftworkers).71
[105] Clause 24.1(a)(i) and (ii) of the draft variation determination provides payment for
overtime, as follows:
(i) for a continuous shiftworker the rate for working overtime is 200% of the
ordinary hourly rate; and
(ii) for shiftworkers working on Sunday, the rate for working overtime is 200% of
the ordinary hourly rate.
67 AMWU submission, 27 November 2019 at [6].
68 AMWU submission, 27 November 2019 at [6] and [9], Qantas submission, 26 November 2019 at 6.
69 AMWU submission, 27 November 2019 at [7]; 4 Yearly Review of Modern Awards – Airline Operations Ground Staff
Award 2010 [2019] FWCFB 5619 at [111]; PR712352.
70 AMWU submission, 27 November 2019 at [9].
71 Ai Group submission 27 November 2019 at [12]-[16]
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[106] The variation has not been reflected in the rates of pay Schedules. The draft variation
determination will be amended to reflect the terms of clause 24.1(a)(i) and (ii), as proposed by
the parties and a new column inserted providing for 200% for all hours worked on a Sunday
as proposed by the AMWU and AWU.
[107] A marked-up version of the changes we proposed to make to the tables at B.2.4, B.3.4,
B4.4 and B.5.4 was set out at Attachment A to the December 2019 Statement. At the hearing
on 18 December 2019 no party opposed the amendment of the draft determination in
accordance with Attachment A. We will amend the variation determination accordingly.
[108] The AMWU also submit that the tables in Schedule B do not include overtime rates
for casuals.72 The AMWU continues to rely on their position that a table of overtime rates for
casuals should be inserted into the relevant Schedule B tables,73 however the AMWU notes
that this matter may be dealt with by the Full Bench in AM2017/51.74 Consistent with our
general approach, the award will be varied by the Full Bench in AM2017/51. After the award
has been varied the variation determination will be amended.
[109] Ai Group raises three other issues.
(i) Schedule C.1.1
[110] Ai Group submits that the clause numbers in Schedule C.1.1 should be amended to
improve clarity, as follows:
Disability allowance – excessive fumes, noise and dust etc: 20.3(b)(i)(A)
Disability allowance – noise and dust to a limited degree: 20.3(b)(i)(B)
[111] The AMWU and AWU agree. We agree and will make the amendment suggested by
Ai Group.
(ii) Clause 10.3(a) Part time shiftworkers
[112] Ai Group submits that the word ‘on’ should be inserted before ‘guaranteed’.
[113] In reply, the AMWU submits that the word ‘on’ should be inserted before the word
‘the’, rather than before the word ‘guaranteed’, so that the clause reads:
‘At the time of engagement or appointment of an employee as a shiftworker, the employer and
the part time employee will agree in writing on the guaranteed minimum number of ordinary
hours to be worked in a week.’
[114] The AWU and Ai Group agree with the AMWU’s proposal. We will amend clause
10.3(a) in the draft variation determination accordingly.
72 AMWU submission, 27 November 2019 at [11].
73 AMWU submission, 27 November 2019 at [12]; Transcript of proceedings 6 December 2016 at PN192
74 AMWU submission, 27 November 2019 at [14].
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(iii) Clause 17.7(b) Shift penalty rates – weekends and public holidays
[115] Ai Group submits that the word ‘premiums’ should be replaced with ‘rates and
allowances’ in order to reflect the terminology adopted in clauses 17.3 to 17.6.
[116] In reply the AMWU submits that the proposed change is not necessary and that the
current equivalent clause refers to ‘shift premiums’. The AWU agrees with the AMWU.
[117] In the December 2019 Statement, consistent with the approach taken in the Tranche 1
matters, we expressed the provisional view that Ai Group’s proposed amendment be adopted
and the draft variation determination amended accordingly. At the hearing on 18 December
2019 no party opposed our provisional view. We confirm our provisional view and will
amend the draft variation determination accordingly.
[118] The Qantas Group raise four additional issues.
(i) Clause 4.2 Airline Operations industry definition – Qantas reiterates its
understanding that although the definition of airline operations industry has
been amended, the amendments are not intended to alter the existing coverage
of the award in any way.
We confirm that Qantas’ understanding is correct. The amendments to the
definition of airline operations are not intended to alter the coverage of the
award in any way.
(ii) Clause 18.7 Higher duties – Qantas queries whether this clause is appropriately
placed within the award.
The higher duties clause in this award is placed towards the end of clause 18,
Minimum rates. The AMWU notes that this is consistent with the approach
taken in other modern awards (see clause 20.2 of the draft variation
determination in respect of the Manufacturing and Associated Industries and
Occupation Award). We do not propose to adopt a different approach in
respect of this award and we do not propose to vary the location of clause 18.7.
(iii) Clause 24.1(c) Payment for working overtime – Qantas submits that clause
24.1(c) deals with taking time off instead of payment for overtime and submits
that it can be deleted given the overlap with clause 24.6. Ai Group raises the
same point. The AMWU and AWU agree.
We agree with Qantas (and Ai Group) and will delete clause 24.1(c) (and
renumber clause 24.1(d)) in the draft variation determination.
(iv) Schedule B.5.3 Full time and part time store persons and logistics shiftworkers
- Qantas submits that the rates in Schedule B.5.3 ‘appear to be incorrect’ and
that the rates for 150%, 200% and 250% of the ordinary hourly rate (which is
based on the minimum hourly rate) should reflect those in B.5.1. Ai Group and
the AMWU submit that the rates in this table are incorrect and require
recalculation. For example, 150% of the minimum hourly rates applying to
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Level 1 should be $31.08 and 200% of the minimum hourly rate applying to
Level 1 should be $41.44. The AMWU and AWU agree.
We agree with Qantas and Ai Group and will amend the rates accordingly.
6.2. Air Pilots Award
[119] Qantas raises three issues in respect of the draft variation determinations.
(i) Table of facilitative provisions (clause 7.4)
[120] Qantas submits that clause 14.1(b) and clause 20.3(b)(iii) should be added as
additional cross-references in the table of facilitative provisions at clause 7.4.75 The clauses
are set out below:
14. Transfers
14.1 Permanent
…
(b) The pilot and the employer may mutually agree in a specific case that a shorter
period of time represents adequate notice.
20.3 Expense-related allowances
(b) Provision of transport and travel
(iii) Where an employer requires a pilot to layover the employer will provide
accommodation and travel at no cost to the pilot. The accommodation and travel will
be confirmed prior to departure from home base, or in aerial application operations, at
the earliest practicable time or as otherwise agreed between the pilot and employer.
[121] We agree with Qantas and the two clauses set out above will be added to the table of
facilitative provisions in clause 7.4; the draft variation determination will be amended
accordingly.
(ii) Schedule B.3.1
[122] Qantas further submit that the words ‘per tour of duty’ in Schedule B.3.1 should be
amended to revert to the wording in previous versions of the Exposure Draft which were ‘for
the tour of duty’. We agree and will make the change proposed.76
(iii) Schedule F.3.2
75 Qantas submission, 26 November 2019 at [3].
76 Qantas submission, 26 November 2019 at [4].
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[123] Qantas raise a question about the table in Schedule F.3.2(b) which includes a row for
‘daily travel allowance’ and submit that they are unsure what this allowance applies to and
indicated that they would confer with the other parties before the hearing. At the hearing on
18 December 2019 Qantas advised that they had discussed the issue with the AFAP and it was
agreed that the words ‘daily travel allowance’ in Schedule F.3.2(b) be replaced with ‘daily
travelling allowance.’ We agree and will amend the draft variation determination accordingly.
[124] We note that there are a number of substantive issues currently referred to another Full
Bench (AM2018/14). Clause 13 (Training – Classification) and Schedule B (Classification,
Minimum Salaries and Additions to Salaries Regional Airlines) will be the subject of further
submissions in those proceedings.
6.3 Alpine Resorts Award
[125] The AWU submits that the words “no more than 38 hours per week” in clauses 10.1(b)
and 15.3 should be amended to “less than 38 hours per week”. AWU submits that if the
variation is not made, a part-time employee can arguably work an average of 38 ordinary
hours per week. It is submitted that this change is consistent with what was substantively
agreed between the AWU and the Australian Ski Areas Association earlier in the award
review.
[126] Clauses 10.1(b) and 15.3 provide:
10.1 A part-time employee:
(b) is engaged to work an average of at least 8 and no more than 38 hours per week over a
work cycle of 4 weeks;
15.3 The ordinary hours of part-time employees will average at least 8 and no more than 38
hours per week over a maximum work cycle of 4 weeks.
[127] In the December 2019 Statement we expressed the provisional view that the draft
variation determination be amended, as proposed by the AWU. At the hearing on 18
December 2019 there was no opposition to our provisional view and the AWU indicated that
the Australian Ski Areas Association supported the proposed change.77 We confirm our
provisional view and will amend the draft determination accordingly.
6.4 Architects Award
[128] The ACAA submit that a further amendment should be made to the table at clause
13.1 as follows:78
77 Subsequently confirmed by email
78 ACAA submission, 27 November 2019 at page 1
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Classification Minimum
annual rate
(full-time
employee)
Minimum
weekly
rate
(full-time
employee)
Minimum
hourly rate
(full-time
and part-
time
employee)
[129] We agree with the addition of (full time employee) under the heading ‘Minimum
annual rate’ and will amend the draft variation determination accordingly.
[130] In the December 2019 Statement we expressed the provisional view that the other
proposed change be rejected. The minimum hourly rate column applies to full-time, part-time
and casual employees (see clause 10). At the hearing on 18 December 2019 the ACAA did
not contest our provisional view but proposed that a reference to casual employees also be
inserted in the heading dealing with the minimum hourly rate. We agree and will amend the
draft variation determination accordingly.
[131] The balance of the submissions made by the ACAA relate to the issues before the
substantive issues full bench (AM2018/16). That Full Bench issued a decision in this matter
on 12 September 2019 which attached a draft determination.79 Interested parties then had the
opportunity to file submissions. We do not propose to deal with those issues as part of the
process of finalising the Exposure Drafts. The Exposure Draft will be updated when the
AM2018/6 Full Bench issues a final variation determination.
6.5 Asphalt Industry Award
[132] The AWU raises three issues.
(i) Clause 19.2
[133] The AWU submits that an additional row should be added to the table at clause 19.2
for overtime work on a public holiday with a 250% rate and a four-hour minimum
engagement. The proposed change is said to reflect the entitlement in clause 28.3 of the
current award.
[134] The table at clause 19.2 deals with overtime rates for employees other than
shiftworkers and states:
19.2 Overtime rates for employees other than shiftworkers
Where an employee works overtime the employer must pay to the employee the overtime rates
as follows:
For overtime worked on Overtime rate
% of ordinary hourly rate
or casual ordinary hourly
rate
Minimum
payment
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For overtime worked on Overtime rate
% of ordinary hourly rate
or casual ordinary hourly
rate
Minimum
payment
Monday to Friday—first 2 hours 150 –
Monday to Friday—after 2 hours 200 –
Saturday—first 2 hours 150 4 hours
Saturday—after 2 hours 200 4 hours
Sunday all day 200 4 hours
See Schedule A – Summary of Hourly Rates of Pay for a summary of hourly rates of pay
including overtime and penalties.
See clause 20.5 for overtime rates for shiftworkers.
[135] In reply, Ai Group does not oppose the insertion of an additional row dealing with
public holiday rates but submits that the reference to a 4 hour minimum payment would
constitute a substantive change,:
‘Clause 28.3 of the award requires a 4 hour minimum for any work performed on a public
holiday, regardless of whether it constitutes ordinary hours or overtime. Moreover, an
employee is not entitled to a 4 hour minimum payment in respect of ordinary hours and an
additional 4 hour minimum payment in respect of overtime worked on a public holiday, in
circumstances where an employee works both ordinary hours and overtime on a public
holiday.
Accordingly, we suggest that in the “minimum payment” column, the following words are
inserted: “see clause 26.3”. Clause 26.3 provides the minimum payment period in the same
terms as the current clause 28.3.’80
[136] At the hearing on 18 December 2019 the AWU agreed to Ai Group’s proposal that in
the ‘minimum payment’ column of clause 19.2 the words ‘see clause 26.3’ be inserted to line
up with the addition of the public holiday provision proposed by the AWU. We agree and will
amend the draft variation determination accordingly.
(ii) Payment for work on a public holiday
[137] The AWU submits that the ‘Payment for work on a public holiday’ clauses in the
current award and the Exposure Draft are not consistent. Clause 28.3 of the current award
states:
‘Payment for work on a public holiday
If an employee works on any of the public holidays arising from this clause or any day
substituted for such public holidays the employee will be paid at the rate of double
80 Ai Group reply submission, 9 December 2019 at [13]-[15]
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time and one half of their ordinary rate of pay, with a minimum payment of four hours
at such rate.’
[138] Clause 26.2 of the Exposure Draft states:
‘Payment for working public holidays
Where a full-time or part-time employee works ordinary hours on a public holiday the
employee will be paid 250% of the ordinary hourly rate for all time worked on the
public holiday. A casual employee who works on a public holiday will be paid 250%
of the casual ordinary hourly rate.’
[139] The AWU submits that clause 28.3 in the current award does not confine the 250%
penalty rate to ordinary hours on public holidays – it applies equally to overtime81 and on that
basis that a public holiday column should be added to the table at shedule A.2.2 with a
penalty rate of 250%.82
[140] In reply, Ai Group submit that it is not clear whether the AWU is proposing a change
to clause 26.2 but note that the change it has proposed to clause 19.2 would address its
concern. Ai Group also notes that an alternate way of addressing this issue would be to simply
delete the words ‘ordinary hours’ from clause 26.2, in lieu of making any change to clause
19.2.83
[141] During the course of the hearing on 18 December 2019 the AWU and Ai Group
agreed to a resolution of this issue by amending clause 11.4(a)(i) and (ii) to delete ‘minimum
hourly rate’ and insert ‘ordinary hourly rate.’84 We agree and will amend the draft variation
determination accordingly.
(iii) Clauses A.2.3 and A.3.3
[142] The AWU submits that a Sunday penalty rate column has been omitted from the table
at clauses A.2.3 and A.3.3 and that the correct penalty rate is 200%.85
[143] In reply, Ai Group does not oppose the changes to A.2.3 and A.3.3.86ABI agrees with
the submissions of Ai Group and the AWU.
[144] We will make the changes to A.2.3 and A.3.3 proposed by the AWU and amend the
draft variation determination.
6.6 Cleaning Services Award
81 AWU submission 27 November 2019 at [9]
82 AWU submission 27 November 2019 at [10]
83 Ai Group reply submission, 9 December 2019 at [16]-[17]
84 The AWU subsequently filed a note setting out the position agreed to by the AWU and Ai Group
85 AWU submission 27 November 2019 at [11]
86 Ai Group reply submission, 9 December 2019 at [18]
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[145] In addition to correcting minor errors Ai Group raises an issue with the definition of
‘minimum hourly rate’ in clause 2.87
[146] Ai Group submit that the words ‘for a full-time employee’ should be removed from
the definition of minimum hourly rate.88 The definition is as follows:
minimum hourly rate means the minimum hourly rate for a full-time employee specified in
column 3, in accordance with the employee classification specified in column 1, of Table 2—
Minimum rates.
[147] Ai Group submits that the purpose of the words ‘for a full time employee’ is unclear
and they are potentially confusing, in particular:
it is unclear whether they have the effect of limiting the application of the term to
full time employees, which would be an unintended outcome of the definition. The
term ‘minimum hourly rate’ is used throughout the Exposure Draft in respect of
entitlements for full time, part time and casual employees;
Table 2 at clause 15 does not refer to or confine the entitlement to the hourly rate
there prescribed to full time employees.
[148] In reply the UWU opposes the deletion of the words ‘for a full time employee’ and
submits:
‘Whilst Table 2 at clause 15 includes hourly rates, those hourly rates are not applicable
to part-time or casual employees. Part time employees are entitled to a 15% allowance
in accordance with clause 10.2 and casual employees are entitled to a loading of 25%
in accordance with clause 11.3. Deleting the words ‘for a full time employee’ in the
definition of the minimum hourly rate may mislead employers and employees as to the
correct payment for part time and casual employees.’89
[149] Contrary to the UWU’s submissions, we see no difficulty with the deletion of the
words ‘for a full-time employee’ as the rates for part time and casual employees under this
award are plainly based on the minimum hourly rate. We will amend the draft variation
determination as proposed by Ai Group.
[150] During the course of the hearing on 18 December 2019 the UWU submitted that this
award is ‘replete with … confusion’.90 The appropriate means of addressing perceived
deficiencies in a modern award is by making an application to vary the award. We note that
over the course of the Review, since 2014, United Voice, one of the predecessor organisations
of the UWU, made no substantive claims to vary this award. If UWU contends that the award
is not meeting the modern awards objective it is open to it to file an application under s 158.
6.7 Commercial Sales Award
87 We note that Ai Group withdrew its earlier submission proposing an amendment to clause 4.5(d)
88 Ai Group submission, 27 November 2019 at [27]
89 UWU submission 9 December 2019 at [3]
90 Transcript of Proceedings, 18 December 2019 at PN160
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[151] Ai Group submit that the terms ‘minimum hourly rate’ and ‘applicable minimum
hourly rate set out in clause 15–Classifications and minimum rates’ have been used
inconsistently and therefore have the potential to cause confusion.
[152] In reply, ABI submits (contrary to Ai Group) that the use of both ‘minimum hourly
rate’ and ‘applicable minimum hourly rate’ is not confusing but did not oppose the references
to ‘minimum – hourly rate’ identified by Ai Group being varied to ‘applicable minimum
hourly rate’, for the sake of consistency.
[153] In the December 2019 Statement we expressed the provisional view that no
amendment is necessary. At the hearing on 18 December 2018 no party challenged our
provisional view and Ai Group did not press its submission.
6.8 Concrete Products Award
[154] The Commission posed the following question at clause 11.3 of the tracked Exposure
Draft published on 14 October 2019:
‘Parties are asked to confirm whether the cross reference in clause 11.3(b) to clause 11.3(c) is
correct’
[155] The AWU submits that the cross-reference in clause 11.3(b) to clause 11.3(c) is
incorrect and that it should be amended to ‘clause 11.3(b).91 Ai Group agrees. We will amend
the draft variation determination accordingly.
[156] The AWU raises three additional points.
(i) Clause 21.9(b)(iii) Sundays and public holidays – shiftworkers on other than
continuous shift
[157] The AWU submits that the ‘Shiftworkers on other than continuous work’ subclauses at
clause 21.9(b)(iii) of the Exposure Draft and the corresponding clause of the current award are
inconsistent.
[158] Clause 25.9(c) of the current award is drafted as follows:
‘Where shifts commence between 11.00 pm and midnight on a Sunday or a public holiday, the
time worked before midnight will not entitle the employee to the Sunday or public holiday
rate, provided that the time worked by an employee on a shift commencing before midnight on
the day preceding a Sunday or public holiday and extending into a Sunday or public holiday
will be regarded as time worked on such Sunday or public holiday.’
[159] Clause 21.9(b)(iii) of the Exposure Draft is under the heading ‘Shiftworkers on other
than continuous work’ as follows:
‘Where shifts commence between 11.00 pm and midnight on a Sunday or a public holiday, the
time worked before midnight will not entitle the employee to the Sunday or public holiday
rate, provided that the time worked by an employee on a shift commencing before midnight on
91 AWU submission 27 November 2019 at [12].
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the day preceding a Sunday or public holiday and extending into a Sunday or public holiday
will be regarded as time worked on such Sunday or public holiday.’
[160] The AWU submits the provision in the current award applies equally to continuous
and non-continuous work and to maintain this outcome, clause 21.9(b)(iii) of the Exposure
Draft should be renumbered as clause 21.9(c) and a consequential change made to the next
clause.92
[161] Ai Group agrees with the AWU. We will amend the draft variation determination
accordingly.
(ii) Schedule B.3.2
[162] The AWU submits the heading in the table in schedule B.3.2 be amended as follows:
(added words underlined):
‘Monday to Sunday and public holidays’. 93
[163] Ai Group agrees with the AWU. We will amend the draft variation determination
accordingly.
(iii) Schedule B.3.3
[164] The AWU submits that a ‘Public holiday’ column should be added to the table in
schedule B.3.3 with a rate of 200%.94
[165] Ai Group does not oppose the AWU’s submission and notes that the rates should be
the same as those set out in the column currently furthest to the right; the AWU agrees with
the latter point. We agree and will amend the draft variation determination accordingly.
6.9 Contract Call Centres Award
[166] In addition to some minor errors Ai Group raises an issue in relation to clauses B.1.1
and B.2.1.
[167] Schedule B.1.1 states:
92 AWU submission 27 November 2019 at [14].
93 AWU submission 27 November 2019 at [15].
94 AWU submission 27 November 2019 at [16].
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B.1.1 Full–time and part–time adult employees—all employees—ordinary and penalty
rates
Ordinary
hours
Monday
to Friday
Saturday Sunday Public
holiday1
Outside
spread of
ordinary
hours
7 am—
7 pm
12 am—
7 am &
7 pm—
12 am
% of minimum hourly rate
100% 125% 125% 150% 175% 250%
$ $ $ $ $ $
Customer Contact
Trainee
20.82 26.03 26.03
31.23
36.44 52.05
Clerical and
Administration Officer
Level 1
20.82 26.03 26.03 31.23 36.44 52.05
Customer Contact
Officer Level 1
21.54 26.93 26.93 32.31 37.70 53.85
Clerical and
Administration Officer
Level 2
21.54 26.93 26.93 32.31 37.70 53.85
Customer Contact
Officer Level 2
22.70 28.38 28.38 34.05 39.73 56.75
Clerical and
Administration Officer
Level 3
22.70 28.38 28.38 34.05 39.73 56.75
Principal Customer
Contact Specialist
24.14 30.18 30.18 36.21 42.25 60.35
Customer Contact
Team Leader
24.77 30.96 30.96 37.16 43.35 61.93
Clerical and
Administration Officer
Level 4
24.77 30.96 30.96 37.16 43.35 61.93
Principal Customer
Contact Leader
26.55 33.19 33.19 39.83 46.46 66.38
Clerical and
Administration Officer
Level 5
26.55 33.19 33.19 39.83 46.46 66.38
Contract Call Centre
Industry Technical
Associate
28.70 35.88 35.88 43.05 50.23 71.75
1 Does not apply to designated shiftworkers performing work during afternoon and night shifts.
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[168] Ai Group submits that the heading of the second column (“Ordinary hours”) in the
tables in clauses B.1.1 and B.2.1 be replaced with “Monday to Friday, Within spread of
ordinary hours” 95 on the basis that this more accurately reflects the circumstances in which
the rate prescribed is payable and better distinguishes those rates from the rates that appear in
the following column.
[169] At the hearing on 18 December 2019 the CPSU did not oppose the changes proposed
by Ai Group.
[170] We agree with both suggested changes and will amend the draft variation
determination accordingly.
6.10 Dry Cleaning and Laundry Industry Award
[171] The CFMMEU – Manufacturing Division submits that it may be clearer if all the
shiftwork rates for ordinary hours in clauses C.1.2 and C.1.3 are combined into a single
table. It notes that this approach has been taken for casual shiftwork rates in Schedule C.3.5
and C.3.6.96
[172] We agree with the CFMMEU – Manufacturing Division and in the December 2019
Statement we expressed the provisional view that tables C.1.2 and C.1.3 be combined as set
out below:
C.1.2 Full-time and part-time shiftworkers—ordinary and penalty rates
Ordinary
hours
Morning,
afternoon
or night
shift
Permanent
night shift
Saturday –
ordinary
hours
worked
before
midday
Saturday
–
ordinary
hours
worked
after
midday
Public
holiday
Non-successive
morning, afternoon or
night shift – dry
cleaning1
First 3
hours
After 3
hours
% of minimum hourly rate
100% 115% 130% 125% 150% 250% 150% 200%
$ $ $ $ $ $ $ $
Dry cleaning
employee
Level 1
19.49 22.41 25.34 24.36 29.24 48.73 29.24 38.98
Dry cleaning
employee
Level 2
20.06 23.07 26.08 25.08 30.09 50.15 30.09 40.12
Dry cleaning
employee
Level 3
20.34 23.39 26.44 25.43 30.51 50.85 30.51 40.68
Dry cleaning
employee
21.54 24.77 28.00 26.93 32.31 53.85 32.31 43.08
95 Ai Group submission, 27 November at [46]-[47].
96 AWU submission 27 November 2019 at [17].
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Ordinary
hours
Morning,
afternoon
or night
shift
Permanent
night shift
Saturday –
ordinary
hours
worked
before
midday
Saturday
–
ordinary
hours
worked
after
midday
Public
holiday
Non-successive
morning, afternoon or
night shift – dry
cleaning1
First 3
hours
After 3
hours
% of minimum hourly rate
100% 115% 130% 125% 150% 250% 150% 200%
$ $ $ $ $ $ $ $
Level 4
Dry cleaning
employee
Level 5
22.70 26.11 29.51 28.38 34.05 56.75 34.05 45.40
1 Non successive morning, afternoon or night shift – dry cleaning means an employee in a dry cleaning
workplace who works on any morning, afternoon or night shift which does not continue for a period of 3
successive mornings, afternoons or nights (see clause 25.6)
[173] At the hearing on 18 December 2019 there was no opposition to our provisional view.
We confirm that view and will combine table C.1.2 and C.1.3 as set out above. The insertion
of this table will require consequential numbering within C.1. The draft variation
determination will be amended accordingly.
6.11 Educational Services (Schools) General Staff Award
[174] In the 14 October 2019 decision 97 we set out an issue that had been raised by ISV as
follows:
[151] Independent Schools Victoria (ISV) makes a submission in relation to the definition of a
‘night shift’ in clause 15. In short, ISV is of the view that the multiple spreads of ordinary
hours in clause 9.5 of the Award and definition of a ‘night shift’, in clause 15.1(c) as finishing
at 6am, irrespective of the starting time of the relevant spread of ordinary hours, has created a
situation where an overnight shift cannot be defined as a night shift in some circumstances.
[152] ISV proposes a variation to clause 15.1(c) as follows:
‘(c)’ night shift is a shift which is not a day shift and which finishes after midnight and at or
before the commencement of the relevant spread of ordinary hours identified in clause 9.5,
which may be varied by clause 9.6.’
[153] The IEU has not yet responded to ISV’s submission; the Commission will write to the
IEU inviting them to do so. If the proposal is contested it will be referred to a separate,
substantive issues, Full Bench.
[175] On 5 December 2019, the IEU responded to the ISV’s submission. The IEU supported
the ISV submission and undertook to provide a draft determination giving effect to the
changes by 9 December 2019.98
97 [2019] FWCFB 6935
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[176] A draft determination was filed by the IEU on 12 December 2019. The draft
determination states, relevantly:
‘1. By replacing clause 22.1(c) with the following clause:
‘(c) night shift is a shift which is not a day shift and which finishes after midnight and
at or before the commencement of the relevant spread of ordinary hours identified in
clause 14.5.’99
[177] At the hearing on 18 December 2019 there was no opposition to varying the draft
variation determination to incorporate the change proposed in the IEU’s draft determination.
We will amend the draft variation determination accordingly.
[178] During the hearing on 18 December 2019 the IEU drew our attention to the fact that
the exposure draft and draft variation determination had not incorporated a series of
amendments made to the award by a Full Bench of the Commission on 21 December 2015.
These amendments are set out in PR575283.
[179] We advised the parties that we will issue a revised exposure draft and draft variation
determination in January 2020. Interested parties will have an opportunity to comment on the
revised documents and we will issue a Statement setting out the process for finalising the
variation determination in respect of this award.
[180] In light of the amendments to be made to the exposure draft and draft variation
determination, the Associations of Independent Schools (the Associations) withdrew their
claims in respect of the formula in clause 12.2 and the unpaid meal break provisions. Further,
at a conference before Deputy President Clancy on 18 December 2019 the parties agreed to
some amendments to the example at the end of clause 12 and ABI withdrew its other
proposed amendments to clause 12.2. The agreed variations to the example at the end of
clause 12 are as follows:
Brad works 38 hours per week during term weeks and is classified at Level 3.1. The
annual rate of pay for a full-time employee working 52.18 weeks of the school year is
$45,031.
Brad is required to take leave without pay during non-term weeks.
As there are 39.4 term weeks in the school year, Brad is required to work 39.4 term
weeks.
The formula in clause 7.2(b)12.2(b) is:
A = C x (working weeks + 4 weeks annual leave)
52.18
98 IEU submission, 5 December 2019
99 The cross references in the original draft determination were amended during the course of the hearing on 18 December
2019, see Transcript 18 December 2019 at [389]
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Calculating the adjusted annual salary:
Step 1: (working weeks + 4 weeks annual leave) = 39.4 + 4 = 43.4
Step 2: 43.4 / 52.18 = 0.8317
Step 3: $45,031 x 0.8317 = $37,452
Adjusted annual salary = $37,452
[181] There are two outstanding issues in respect of this award.
(i) Clause 21.3 Reasonable additional hours for part time employees
[182] In relation to clause 21.3 Reasonable additional hours for part-time employees, the
Associations agree that clause 21.3 of the Exposure Draft is consistent with clause 22.4 of the
current award100 but submit that clause 22.4 of the current award could be more explicit when
it comes to the maximum ordinary hours that can be worked in a week.101
[183] Clause 21.3 of the Exposure Draft currently provides:
21.3 Reasonable additional hours – part-time employees
(a) An employer may require a part-time employee to work reasonable additional hours in
accordance with clause 21.3.
(b) The employee will be paid for all additional hours at the applicable casual hourly rate for
all hours worked that:
(i) fall within the applicable daily spread of hours in clause 14.5;
(ii) do not result in the employee working more than 8 hours on that day; and
(iii) do not result in an employee whose hours are averaged, to work more than the
allowed maximum weekly ordinary hours during the averaging period.
(c) The employee will be paid for all additional hours at the applicable overtime rate in clause
21—Overtime for all hours worked that:
(i) are outside the applicable daily spread of hours in clause 14.5; and
(ii) result in the employee working more than 8 hours on that day, or
(iii) result in an employee whose hours are averaged, to work more than the allowed
maximum weekly ordinary hours during the averaging period.
(d) Where additional hours are worked on a day the employee is already attending for work,
the minimum casual engagement of 2 hours will not apply.
(e) Additional hours worked by a part-time employee in accordance with clause 21.3 do not
accrue leave entitlements under this award or the NES.
100 Associations of Independent Schools submission, 27 November 2019 at [19].
101 Associations of Independent Schools submission, 27 November 2019 at [20].
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[184] The Associations submit that in the interests of assisting employers and employees to
interpret the provision surrounding reasonable additional hours, clause 21.3(b)(iii) of the
Exposure Draft be replaced with:
cl.21.3(b)
(iii) do not result in an employee:
• working more than the allowed maximum weekly ordinary hours;
• working more than the allowed maximum weekly ordinary hours during the averaging
period, where the employee’s hours are averaged.102
[185] The IEU agrees with the Associations proposal to vary clause 21.3.
[186] In the December 2019 Statement we expressed the provisional view that the proposed
amendment be made. However, as we indicated to the parties during the course of the hearing
on 18 December 2019, we have given the matter further thought and have formed the view
that the expression ‘the allowed maximum weekly ordinary hours’ in the proposed
amendment should be replaced by ‘38 hours per week’, to provide greater clarity. Clause
21.3(b) will now read:
‘(iii) do not result in an employee:
working more than 38 ordinary hours per week; or
working more than an average of 38 ordinary hours per week during the averaging
period in which the employee’s hours are averaged.’
[187] Interested parties may comment on the proposed variation to clause 21.3(b) in the
course of responding to the revised exposure drafts and draft variation determination.
(ii) Schedule C.2.1 Expense related allowances
[188] ABI submits that the words “an amount of up to” in schedule C.2.1 should be
deleted.103
[189] The uniform/protective clothing allowance and laundry allowances payable under
clause 19.3(c) are subject to a weekly maximum of $6.00 and $1.50 respectively. The
summary table in scheduleC.2.1 describes the weekly cap for the uniform/protective clothing
allowance as:
‘Uniform/protective clothing allowance—paid with laundry allowance—Maximum per
week—an amount of up to [$6.00 per week].’
[190] Similarly, the laundry allowance (when paid in addition to the uniform/protective
clothing allowance) is described as:
102 Associations of Independent Schools submission, 27 November 2019 at [22].
103 ABI submission, 27 November 2019 at [28]-[32].
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‘Laundry allowance—additional to uniform/ protective clothing allowance—Maximum per
week—an amount of up to [$1.50 per week].’
[191] ABI submits that the allowance cap can accurately be expressed as either a “maximum
per week” or “an amount of up to”, but it cannot be both. The words “an amount of up to”
should be removed in rows containing the maximum weekly laundry and Uniform/protective
clothing allowances.104
[192] ABI also submits that the words “an amount of up to” is erroneous where it appears in
schedule C.2.1 in the row that provides a daily laundry allowance where the cost of the
uniform is reimbursed by the employer. ABI submits that the allowance is fixed at a rate of
$0.30 per day.105
[193] In reply, the IEU agrees with ABI’s submission and its proposed wording. In the
December 2019 Statement we expressed the provisional view that the amendments proposed
by ABI be adopted. At the hearing on 18 December 2019 no party opposed our provisional
view. We confirm our provisional view and will amend the draft variation determination as
proposed by ABI.
[194] In a submission received on 5 December 2019, the Federation of Parents and Citizens
Associations of NSW (Federation) seek to vary the coverage clause of the award.
[195] The Federation submits that the following amendments should:
4.1 This industry award covers employers and Parents and Citizens Association
employers in the school education industry throughout Australia and their employees
employed in the classifications contained in Schedule A—Classifications to the exclusion of
any other modern award.
[196] It is also proposed that a definition of Parents and Citizens Association employer
should then be inserted as follows:
‘Parents and citizens association employer means an incorporated or not incorporated, not-
for-profit, school-based organisation consisting of parents, teachers and interested parties,
established under the requisite State Education Act, for the purpose of supporting a school for
the benefit of the school’s students.’
[197] In reply, the IEU submits that the Federation seek a significant variation to the award
and ‘if the Commission is minded to deal with this issue it should, as a matter of fairness, be
referred to a separate Full Bench and a hearing programmed for directions’.106
[198] ABI also notes that the change in coverage proposed ‘would be substantive and fall
outside of the intended scope of the technical and drafting review of Exposure Drafts.’107
104 ABI submission, 27 November 2019 at [31].
105 ABI submission, 27 November 2019 at [35].
106 IEU reply submission 9 December 2019 at [10]
107 ABI reply submission 9 December 2019 at [19]
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[199] The Federation seek a significant variation to the award and (as noted by the IEU) it
does so more than 2 years after the Commission issued directions requiring any party seeking
a substantive change to file proposals and more than 12 months after the last of those
proposals was dealt with by the Commission.
[200] We do not propose to deal with Federation’s proposal as part of these Tranche 2
proceedings. The proposal will be referred to a separate Full Bench and the matter will be
programmed for a hearing in due course.
6.12 Gas Industry Award
[201] In addition to some minor errors Ai Group raises an issue with respect to schedule
C.1.1 Wage-related allowances – Availability duty. Ai Group suggests that after ‘$224.25’,
the Commission insert ‘(or part thereof)’ to properly reflect the bracketed element of clause
17.3(a) of the Exposure Draft. The AWU agrees.
[202] We note that the availability allowance in clause 17.3(a) is ‘$224.25 per week (or per
day on a pro rata basis where an employee is required for less than a week)’. We agree with
Ai Group and will amend C.1.1 in the draft variation determination as proposed by Ai Group.
[203] We also note that clause 14.1 Meal Breaks is the subject of separate proceedings in
AM2018/10 (see [2019] FWCFB 4559). Once the other Full Bench issues its determination
varying the award interested parties will be given an opportunity to comment on the terms in
which that change is reflected in the Exposure Draft and draft variation determination.
6.13 Higher Education Industry—General Staff—Award
[204] The Go8 rely on their submissions filed in the Overtime for Casuals matter,108 in
relation to clause 12 and 22 and the rates of pay for casual staff in Schedule B and recognise
their submissions will be considered by that Full Bench.109
[205] As noted by the Go8 the pre-existing casual conversion clauses will not be
redrafted.110
6.14 Hospitality Industry (General) Award
[206] There are two issues in respect of this award.
(i) Clause 29.3(a)
[207] Clause 29.3 of the Exposure Draft currently states:
(a) Clause 29.3 applies where more than one penalty rate would be payable for hours
worked at a particular time. The employer must pay the employee the highest of any
penalty rates applicable.
108 Group of Eight Universities submission, 28 October 2019 filed in the Overtime for Casuals matter
109 Group of Eight Universities submission, 27 November 2019 at [4].
110 Group of Eight Universities submission, 27 November 2019 at [5].
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(b) However, any penalty payable under clause 16 – Breaks is payable in addition to the
penalty rate payable in accordance with clause 29.3(a).
[208] ABI submit that that the last sentence of clause 29.3(a) is not clear and should be re-
drafted to more clearly articulate how the applicable penalty rate is to be determined.111 ABI
propose that the entirety of clause 29.3 be re-drafted as follows:
‘(a) Clause 29.3 applies where more than one penalty rate would be payable for hours
worked at a particular time.
(b) Subject to clause 29.3(c), where more than one penalty rate would be payable for
hours worked at a particular time, the employer must pay the employee the highest
applicable penalty rate, but no other applicable penalty rate is payable.
(c) However, any penalty payable under clause 16—Breaks is payable in addition to the
penalty rate payable in accordance with clause 29.3(b).’112
[209] At the hearing on 18 December 2019 the AHA proposed the following to replace
clause 29.3:
(a) Clause 29.3 applies where more than one penalty rate would be payable for
hours worked at a particular time.
(b) Subject to clause 29.3(c), where more than one penalty rate would be payable
for hours worked at a particular time, the employer must pay the employee the
highest applicable penalty rate, but no other applicable penalty rate is payable.
(c) However, any Where applicable, the penalty payable under clause 16 – Breaks
is payable in addition to the penalty rate payable in accordance with clause
29.3(b).
[210] ABI agree to the AHA’s proposal and the UWU did not oppose the proposed
variation.
[211] We agree with the AHA’s proposed variation to clause 29.3 and will amend the draft
variation determination accordingly.
(ii) Clause 16.2
[212] On 27 November 2019, the AHA made an application113 to vary clause 16.2 to clarify
the meal break entitlements. The AHA seeks to delete the heading of column 1 in Table 2 in
clause 16.2 of the Exposure Draft and the following inserted in its place: “Column 1 Ordinary
hours worked per shift”. The basis for the variation is to provide clarity and remove ambiguity
as to the interaction between the break entitlements set out in clause 16.2 and the additional
111 ABI submission, 27 November 2019 at [40].
112 ABI submission, 27 November 2019 at [41].
113 AHA application, 27 November 2019
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break entitlements set out in clause 16.7. The AHA submit that a similar amendment was
accepted by a Full Bench in the Restaurant Industry Award 2010 (see [2019] FWCFB 7035).
[213] Clause 16 of the Exposure Draft states:
16. Breaks
16.1 Clause 16 deals with meal breaks and rest breaks and gives an employee an
entitlement to them in specified circumstances.
16.2 Frequency of breaks – An employee who works the number of hours in any one shift
specified in column 1 of Table 2 – Entitlements to meal and rest break(s) is entitled to a break
or breaks as specified in column 2.
Table 2 – Entitlement to meal and rest break(s)
Column 1
Hours worked per shift
Column 2
Breaks
More than 5 hours and up to 6 Elective unpaid meal break of up to 30 minutes in
accordance with clause 16.4—Request for unpaid meal
break.
More than 6 hours and up to 8 An unpaid meal break of no less than 30 minutes (to be
taken after the first 2 hours of work and within the first
6 hours of work).
More than 8 hours and up to 10 An unpaid meal break of no less than 30 minutes (to be
taken after the first 2 hours of work and within the first
6 hours of work).
One 20 minute paid rest break (may be taken as two 10
minute paid rest breaks).
More than 10 hours An unpaid meal break of no less than 30 minutes (to be
taken after the first 2 hours of work and within the first
6 hours of work).
Two 20 minute paid rest breaks.
16.3 When the employer rosters an employee’s breaks, they must make all reasonable
efforts to ensure that breaks are spread evenly across the employee’s shift.
16.4 Request for unpaid meal break
(a) An employee working a shift of more than 5 and up to 6 hours who elects to
take an unpaid meal break must request the break in writing no later than the
start of their shift. The employer must not unreasonably refuse the employee’s
request.
(b) A request under paragraph (a)clause 16.4(a) applies to all shifts of more than 5
hours worked by that employee unless otherwise agreed between the employee
and the employer.
(c) The arrangement may be reviewed at any time.
16.5 Employer to pay higher rate if break not allowed
If, during an employee’s shift of more than 6 hours, the employer does not allow the
employee to take an unpaid meal break, then the employer must pay the employee at
the rate that applies under clause 16.6:
(a) from 6 hours after the employee started work on that shift;
(b) until either the employee is given a break or the shift ends.
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16.6 If an employee is not allowed to take an unpaid meal break in accordance with clause
16.2 during a shift of more than 6 hours, the employer must pay the employee 50% of
the employee’s ordinary hourly rate extra from the end of 6 hours after starting work
until either the employee is allowed to take the break or the shift ends.
EXAMPLE Mary is a full-time employee whose ordinary hourly rate is $20.00 an
hour. She is working an 8 hour shift. Under Table 2—Entitlements to meal and rest
break(s), she is entitled to “an unpaid meal break of no less than 30 minutes (to be
taken after the first 2 hours of work and within the first 6 hours of work)”. If she has
been working for 6 hours and has not been allowed a break, then she becomes entitled
to be paid the higher rate under clauses 16.5 and 16.6.
If the shift is a normal mid-week shift on which Mary is paid her ordinary hourly rate
of $20.00, then from when she has worked 6 hours until she is allowed to take a break
or her shift ends, the employer is to pay her:
(a) her ordinary hourly rate of $20.00;
(b) plus 50% of her ordinary hourly rate, which is $10.00.
So Mary is to be paid $30.00 an hour after she has worked for 6 hours until she is
allowed to take a break or the shift ends.
If the shift is a Sunday shift on which Mary is paid 160% of her ordinary hourly rate
of $20.00, then from when she has worked 6 hours until she is allowed to take a break
or her shift ends, the employer is to pay her:
(a) her Sunday shift rate of $32.00 (being 160% of her ordinary hourly rate of
$20.00);
(b) plus 50% of her ordinary hourly rate, which is $10.00.
So Mary is to be paid $42.00 an hour after she has worked for 6 hours until she is
allowed to take a break or the shift ends.
16.7 Additional rest break
An employer must give an employee an additional paid rest break of 20 minutes if the
employer requires the employee to work more than:
(a) 5 continuous hours after an unpaid meal break; or
(b) 2 hours’ overtime after the employee finishes their rostered hours.
[214] The UWU submits that the AHA’s application should be dealt with separately from
the Tranche 2 process.
[215] We do not propose to deal with the AHA application as part of the Tranche 2 process.
The changes proposed by the AHA are not technical and drafting matters but are substantive.
The AHA’s proposals will be referred to a separate Full Bench and the matter will be
programmed for a hearing in due course.
6.15 Labour Market Assistance Industry Award
[216] The National Employment Standards (NES) provide for a range of paid leave and
holiday entitlements, including paid annual leave (s.87), personal/carer’s leave (s.96) and
public holidays (s.116). Except in prescribed circumstances, the cashing out of annual leave
(s.93) and personal/carer’s leave (s.100) is prohibited.
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[217] Section 55(1) of the Act relevantly provides that a modern award ‘must not exclude’
the NES or any provision thereof. Section 136(1)(c) provides that a modern award may only
include terms that are permitted by s.55, and s.136(2)(b) prohibits terms that contravene s.55.
Section 56 provides a term of a modern award has no effect to the extent that it contravenes
s.55.
[218] There appears to be an NES inconsistency issue in relation to clause 10.3(d) of this
award. Clause 10.3(d) states:
‘By mutual agreement between the employer and employee, a part-time employee may be paid
a loading of 25% on their hourly rate and not have an entitlement to annual leave,
personal/carers’ leave or payment for public holidays. Such agreement will not alter the
employee’s status as part-time employee.’
[219] Commissioner McKinnon recently referred to an agreement clause in the same terms
as clause 10.3(d) of the award in the course of dealing with an application to approve the Epic
Employment Service Inc Enterprise Agreement 2018:
‘[3] In Canavan Building Pty Ltd a Full Bench of the Commission held that if an enterprise
agreement term has the effect that employees do not receive some or all of a benefit provided
by the Standards [NES], the term excludes the Standards [NES] in a way that is contrary to
section 55.
[4] Clause 10.4(b) of the Agreement provides for the payment of a 25% loading in lieu of an
entitlement to paid leave and public holidays for part-time employees as follows:
‘By mutual agreement between the Employer and Employee, a part-time employee
may be paid a loading of 25% on their hourly rate and not have an entitlement to paid
leave or payment for public holidays except for their accrued long service leave. Such
agreement will not alter the employee’s status as a part-time employee.’’
[5] The term reflects an equivalent term in clause 10.3(d) of the Labour Market Assistance
Industry Award 2010 …
[6] The effect of clause 10.4(b) of the Agreement is that part-time employees can elect to
forgo their entitlement to paid leave and paid public holidays in return for a loaded hourly rate
of pay. The value of the loading is more than the value of the leave and holiday entitlements it
is intended to displace. As it results in some or all of the benefit provided by the Standards
[NES] not being provided to relevant employees, clause 10.4 excludes each of the Standards
[NES] identified in paragraph [2] at least in part.’114
[220] In Canavan Building Pty Ltd115 the Full Bench concluded that the expression ‘paid
annual leave’ as used in Division 6 of Part 2-2 of the Act means annual leave with pay, in the
sense that the pay is provided together with the leave. In broad terms, the Agreement provided
for annual leave to be paid as a loading upon or incorporated into the hourly rate of pay, so
that annual leave would be notionally paid for in advance as a component of the payment
114 Epic Employment Service Inc. T/A Epic Assist [2019] FWC 8142. The Agreement was subsequently approved by
Commissioner McKinnon with a written undertaking that the employer undertakes that clause 10.4(b) will have no effect
and will not be applied as a term of the Agreement: [2019] FWCA 8307.
115 [2014] FWCFB 3202
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made for work performed. The Full Bench concluded that the Agreement was contrary to
s.55(1) in two interrelated respects:
(i) it excluded the entitlement to ‘paid annual leave’ in s.87(1); and
(ii) it excluded the requirement for payment in respect of annual leave in s.90(1).
[221] The Full Bench also considered that the scheme of ‘pre-payment’ of annual leave in
the Agreement constituted cashing out of annual leave in a manner inconsistent with s.93 of
the Act.
[222] In the December 2019 Statement we expressed the provisional view that clause
10.3(d) of the award is inconsistent with s.55 of the Act and that the clause should be deleted
from the award. At the hearing on 18 December 2019 no party opposed our provisional view.
We confirm our provisional view. We will amend the award to delete clause 10.3(d) and will
delete the equivalent provision (clause 10.3) in the draft variation determination.
6.16 Local Government Industry Award
[223] In addition to correcting some minor errors and omissions the Local Government
Associations raises four issues.
(i) Public holiday clauses 14.1(d) and 28
[224] The LGA submit that all provisions relating to public holidays should be contained in
one clause. Clause 14 deals with rostering arrangements, and clause 14.1(d) currently states:
(d) If an accrued rostered day off falls on a public holiday as prescribed in the NES,
the next working day will be substituted. Another day may be substituted by written
agreement.
[225] The remaining public holiday provisions are in clause 28. The LGA submit that clause
14.1(d) should be deleted and re-inserted as a new clause 28.7.
[226] We agree with the LGA’s submission and will amend the draft variation determination
accordingly.
(ii) On-call allowance – Clause 19.2(e)
[227] The LGA submit that the on-call allowance provisions have been separated in the
restructure of the Exposure Draft and that this has made the provisions more difficult to
navigate. In the Exposure Draft published on 14 October 2019, the following provision was
moved to clause 19.2–wage related allowances:
(e) On-call allowance
An employee who is on-call in accordance with clause 21.6 will be paid an on-call allowance
as follows:
(i) Monday to Friday, inclusive—$22.70 per day;
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(ii) Saturday—$34.05 per day; or
(iii) Sunday or a public holiday—$45.40 per day.
[228] Clause 21.6 contains the balance of the ‘on-call’ provisions:
(a) An employee directed by the employer to be available for duty outside of the
employee’s ordinary working hours will be on-call. An employee on-call must be able
to be contacted and immediately respond to a request to attend work.
(b) An employee who is on-call may be paid an on-call allowance in accordance with
clause 19.2(e).
(c) Call out
(i) An employee who is on-call and in receipt of an on-call allowance will be
paid at the appropriate overtime rate in clause 21 for time required to attend
work.
(ii) Actual time worked will be deemed to apply from the time the employee
leaves home.
Remote response
(i) An employee who is in receipt of an on-call allowance and available to
immediately:
• respond to phone calls or messages;
• provide advice (‘phone fixes’);
• arrange call out/rosters of other employees; and
• remotely monitor and/or address issues by remote telephone and/or computer
access, will be paid the applicable overtime rate in clause 21 for the time
actually taken in dealing with each particular matter.
[229] The LGA propose that clause 19.2(e) should be moved to clause 21.6(b) and that
19.2(e) should be as follows:
‘An employee who is on-call allowance will be paid an on-call allowance in accordance with
21.6.’
[230] This clause was moved during the restructure to ensure that all allowances appear
together in the award. We are not persuaded to move the allowance to clause 21.6(b). We note
that clause 21.6(b) directs attention to the on call allowance in clause 19.2(c).
(iii) Schedule B – Summary of hourly rates of pay
[231] The LGA submit that the current drafting of the tables in B.1.1 and B.2.1 refers to
clause 22.2 to communicate that not all work areas are paid the same weekend penalty rates.
The LGA submit that the award has a unique and complex hours clause (at clause 13 of the
Exposure Draft) that reflects the wide range of services provided by local governments and
their unique operational environments. They submit that the current drafting of the Exposure
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Draft has the potential to mislead employees and employers about the correct rate of pay for
different groups of employees at different times.
[232] In the Exposure Draft published on 14 October 2019, schedule B.1 contains two
tables:
B.1.1 Full-time and part-time adult employees—ordinary and penalty rates
Ordinary
hours
Work
outside
span of
ordinary
hours
Saturday1 Sunday1 Public holiday
% of minimum hourly rate
100% 120% 150% 175% 250%
B.1.2 Full-time and part-time adult employees—overtime rates
Monday to
Saturday – first
2 hours
Monday to
Saturday – after
2 hours
Sunday Public holiday
% of minimum hourly rate
150% 200% 200% 250%
1 See clause 22.2
[233] LGA propose the following amendments to the tables:
B.1 Full-time and part-time adult employees
B.1.1 Full-time and part-time adult employees – ordinary and penalty rates for
employees working ordinary hours of work from Monday to Friday as provided in
clause 13.1(d) and 13.1(h).
Ordinary hours
Work outside
span of ordinary
hours
Public holiday
% of minimum hourly rate
100% 120% 250%
B.1.2 Full-time and part-time adult employees – ordinary and penalty rates for
employees working ordinary hours of work from Monday to Sunday as provided in
clause 13.1(e), 13.1(f) and 13.1(g), excluding employees engaged in community services
and recreation centres.
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Ordinary hours
Work outside
span of
ordinary hours Saturday Sunday
Public holiday
% of minimum hourly rate
100% 120% 150% 175% 250%
B.1.3 Full-time and part-time adult employees – ordinary and penalty rates for
employees engaged in community services and recreation centres.
Ordinary hours
Work outside
span of
ordinary hours
Saturday
before 5am or
after 10pm
Sunday before
5am or after
10pm
Public holiday
% of minimum hourly rate
100% 120% 150% 175% 250%
B.1.4 Full-time and part-time adult employees – overtime rates
Monday to 12pm
Saturday –
first 2 hours
Monday to
Saturday – after 2
hours
After 12pm
Saturday, and
Sunday
Public holiday
150% 200% 200% 250%
[234] LGA make a similar submission in relation to Schedule B.2 which relates to the rates
for casual employees and note that these issues are currently before the Full Bench in
AM2017/51–Overtime for casuals.
[235] The proposed amendments referring to the three major groups of employees with
different ordinary hours and weekend penalty rates, are intended to provide more obvious
direction to those reading the Schedule B tables as to the correct rate of pay at the time of the
performance of the work.
[236] The LGA also note the Commission is currently considering, as a common issue,
overtime for casuals (AM2017/51) and that they have made submissions with respect to this,
most recently on 28 October 2019, and are waiting for the decision of the Full Bench.
[237] In the amendments proposed to clauses B.2.1, B.2.2 and B.2.3 set out above the LGA
have set out the casual penalty and overtime rates to reflect their submissions in the overtime
for casuals matter. Consistent with the position we have taken in respect of all other awards,
the schedules will not be varied to deal with overtime for casuals until the Part time and
Casuals Full Bench has dealt with the matters before it and issued a variation determination in
respect of this award.
[238] We agree with the LGA’s proposal and will amend the draft variation determination
accordingly. Adoption of the proposed headings for the Schedule B tables, will require
consequential amendments to populate the hourly rates of pay.
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(iv) Schedule C–Summary of monetary allowances
[239] The wage-related allowances table in C.1.1 of Schedule C do not refer to clause
10.2(c) which provides that part-time employees receive pay and conditions on a pro rata
basis, and may mislead employers to paying for example, the total weekly allowance to a part-
time employee when this is ordinarily adjusted on a pro rata basis.
[240] In support of its submission, the LGA refers to the Fair Work Ombudsman Pay Guide
for the LGIA published on 27 June 2019 (FWO Pay Guide) which contains a table of
allowances that clearly stipulates calculations for the first aid and leading hand allowances as
an hourly rate, as well as a maximum weekly rate.
[241] The FWO Pay Guide expresses the allowance rates as follows:
First aid allowance: $0.42 per hour, up to a maximum of $15.89 per week;
Leading hand allowance – Level 3 or 4 classification supervising 1-5 employees:
$0.66 per hour, up to a maximum of $24.97 per week;
Leading hand allowance – Level 3 or 4 classification supervising 6-15 employees:
$0.90 per hour, up to a maximum of $34.05 per week; and
Leading hand allowance – Level 3, 4 or 5 classification supervising more than 15
employees: $1.14 per hour, up to a maximum of $43.13 per week.
[242] The LGA submits that a new clause C.1.2 be inserted for clarity as follows:
‘The leading hand allowance in clause 19.2(a) and first aid allowance in clause 19.2(b) will be
paid to part-time and casual employees on a pro rata basis.’
[243] We agree with the LGA’s proposal and will amend the draft variation determination
accordingly.
6.17 Manufacturing and Associated Industries and Occupations Award
[244] The AMWU raises two issues.
(i) Clause 11.2
[245] Clause 11.2 states:
11.2 Casual loading
(a) For working ordinary time, a casual employee must be paid:
(i) the ordinary hourly rate for the work being performed; plus
(ii) a loading of 25% of the ordinary hourly rate.
(b) The casual loading constitutes part of the casual employee’s all-purpose rate.
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(c) The resulting rate is the casual ordinary hourly rate.
(d) The 25% casual loading in clause 11.2 does not apply to vehicle
manufacturing employees in the technical field covered by clause 4.8(a)(ix). The
casual loading for these employees is prescribed in clause 46 in Part 9 – Vehicle
manufacturing employees of this award.
[246] The AMWU raises a concern with the way clause 11.2 is expressed and organised in
the context of the way references to the calculation of penalties and loadings in other parts of
the Exposure Draft have been changed from “time and a half” and “double time” to
percentages of the ordinary hourly rate.116
[247] Specifically, the AMWU’s concern is because the Exposure Draft introduces a new
concept of casual ordinary hourly rate’ and provides that overtime and other penalties are to
be calculated as a percentage of the ‘ordinary hourly rate’, ‘may have the effect of causing
employers to mistakenly interpret the new award as meaning that the relevant overtime and
penalties are calculated on the ‘ordinary hourly rate’ and not the ‘casual ordinary hourly
rate’.117
[248] The AMWU does not cavil with having separate definitions of ‘ordinary hourly rate’
and ‘casual ordinary hourly rate’; indeed it argues that it is necessary to have separate
definitions as the ‘concepts have specific and distinct work to do for casuals’.118 The AMWU
goes on to submit:
‘The confusion arises because of the way overtime and penalty rates are expressed. For
example, clause 31.1 states:
(a) Weekend work
Where agreement is reached in accordance with clause 17.2(c):
(i) The rate to be paid to a day worker for ordinary time worked between midnight on Friday
and midnight on Saturday will be 150% of the ordinary hourly rate.
(ii) The rate to be paid to a day worker for ordinary time worked between midnight on
Saturday and midnight on Sunday will be 200% of the ordinary hourly rate.
As it can be seen from the above example there is no distinction in the relevant clause as to
how the calculation is conducted between casual and non-casual employees. For the
discerning employer, any confusion about the calculation of penalty rates for employers will
ultimately be clarified by clause C.3.1 which provides:
“The casual ordinary hourly rate applies for all purposes and is used to calculate
penalties and overtime”.119
however, the AMWU contends that there is merit in making the award simpler and easier to
understand by clarifying the distinct way of calculating penalties for casual and non-casual
employees in the body of the award.’
116 AMWU submission, 27 November 2019 at [17].
117 AMWU submission 27 November 2019 at [18]
118 Ibid at [19]
119 Exposure Draft – Manufacturing and Associated Industries and Occupations Award 20XX republished 14 October 2019
Clause C.3.1.
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[249] In a previous submission the AMWU proposed that all relevant references to the
calculation of penalties or loadings throughout the Exposure Draft be changed to X% of the
ordinary hourly rate to X% of the ordinary hourly rate/casual ordinary hourly rate.
[250] The AMWU concedes that its earlier proposed approach may be cumbersome and
submits that the same affect could be achieved by a more minimalist approach, by amending
clause 11.2 as follows (proposed changes marked up using strike through and underline):
11.2 Casual loading
(a) For working ordinary time, a casual employee must be paid:
(i) the ordinary hourly rate for the work being performed; plus
(ii) a loading of 25% of the ordinary hourly rate.
(a) The casual loading constitutes part of the casual employee’s all purpose rate.
(b) The resulting rate is the casual ordinary hourly rate.
(c) Where this award refers to a penalty rate or shift loading as being calculated as a
percentage of the ordinary hourly rate, that reference will (for a casual employee)
instead be taken to be a reference to the casual ordinary hourly rate.
(e) (d) The 25% casual loading in this clause 11.2 does not apply to vehicle manufacturing
employees in the technical field covered by clause 4.8(a)(ix). The casual loading for
these employees is prescribed in clause 46 in Part 9— Vehicle manufacturing
employees of this award.120
[251] The AMWU contends that amending the Exposure Draft in the way proposed will
ensure that the new award is simple and easy to understand. The AMWU further considers
that the proposed changes should not be controversial considering the Group 1 Full Bench has
already confirmed that in respect of the Manufacturing Award, penalties compound on the
casual loading and the relevant employer groups have confirmed they agree that that the
casual loading compounds in the Manufacturing Award as part of the AM2017/51 Overtime
for Casuals proceedings.121
[252] In reply, ABI acknowledges the apparent difficulty with the definition of ‘ordinary
hourly rates’ and agree that this needs to be resolved.122
[253] In reply, Ai Group submits that the changes proposed by the AMWU are unnecessary
and submits:
‘The issue raised by the AMWU is adequately dealt with in clause 11.2(b) of the exposure
draft. In addition, the hourly rates payable to casual employees when working shifts and
overtime are set out in Schedule C.’123
120 AMWU submission, 27 November 2019 at [23].
121 Correspondence from Australian Business Lawyers and Advisors to Fair Work Commission dated 10 October 2019
122 ABI reply submission, 9 December 2019 at [44]
123 Ai Group reply submission 9 December 2019 at [31]
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[254] At the hearing on 18 December 2019 Ai Group sought leave to file a short
supplementary submission in respect of this issue.
[255] In a further submission filed on 23 December 2019 Ai Group submits that the
amendment to clause 11.2(d) proposed by the AMWU ‘is problematic in circumstances where
a particular entitlement uses the expression ‘ordinary hourly rate’ but the entitlement does not
apply to a casual employee, eg clause 31.12(d) and (e) – the 10 hour break provision’. Ai
Group does not object to the following modified wording for paragraph (d):
(d) Where this award refers to a penalty rate or shift loading as being calculated as
a percentage of the ordinary hourly rate, that reference will (for a casual
employee) instead be taken to be a reference to the casual ordinary hourly rate
if the entitlement is applicable to a casual employee.
[256] It is our provisional view that the modified wording proposed by Ai Group be
adopted. Interested parties will have an opportunity to comment on this proposal when the
revised exposure draft and draft variation determination are published in January 2020.
(ii) Schedule C – C.1.1 Table of Rates
[257] The AMWU notes that the reference made to “Full-time and part time employees
other than afternoon and night shift workers” within Schedule C – C.1.1 Table of Rates,
appears “superfluous” as the existing heading, located five rows above, captures those
employees.124 Further, the AMWU notes that there is no existing percentage figure
corresponding to “Overtime on a public holiday” and proposes that 250% be inserted into that
column, consistent with the cross-reference and in accordance with clause 31.7(a).125 The
AWU make a similar point.126
[258] Clause 31.7(a) states:
(a) A day worker required to work overtime on a public holiday must be paid
250% of the ordinary hourly rate until the employee is relieved from duty with
a minimum payment of 3 hours.
[259] The table at schedule C.1.1 states:
Working hours % of ordinary hourly
rate/minimum casual
ordinary hourly rate
Employees other than afternoon and night shift workers
Ordinary hours 100%
Ordinary hours on a Saturday (clauses 17.2(f)(i) and 32.1(a)(i)) 150%
124 AMWU submission, 27 November 2019 at [27].
125 AMWU submission, 27 November 2019 at [28]; Clause 31.7(a) of the Exposure Draft republished on 14 October 2019, it
provides that a day worker performing work on a public holiday must be paid 250% of the ordinary hourly rate.
126 AWU submission 27 November 2019 at [20].
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Working hours % of ordinary hourly
rate/minimum casual
ordinary hourly rate
Ordinary hours on a Sunday (clauses 17.2(f)(ii) and 32.1(a)(ii)) 200%
Work on a public holiday (clauses 17.2(g) and 32.1(b)) 250%
Full-time and part-time employees other than afternoon and
night shift workers
Overtime on a public holiday (clause 31.7(a))
Overtime – first 3 hours per day Monday to Saturday (clause 31.2(a)) 150%
Overtime –after 3 hours per day Monday to Saturday (clause 31.2(b)) 200%
Overtime on a Sunday (clause 31.6) 200%
Shiftworkers other than those engaged in vehicle manufacturing
covered by clause 4.8(a)(ix)
Shiftworker – afternoon and night shift (clause 32.2(d)) 115%
Shiftworker – permanent night shift (clause 32.2(f)(iii)) 130%
Employed on continuous shift work – on a shift other than a rostered
shift (clause 32.2(g)(ii))
200%
Employed on other than continuous shift work – Work on shift other
than rostered shift - first three3 hours (clause 32.2(g)(ii))
150%
Employed on other than continuous shift work – Work on shift other
than rostered shift - after three3 hours (clause 32.2(g)(ii))
200%
Shiftworker – ordinary hours on a Saturday (clause 32.2(i)(i)) 150%
Shiftworker – ordinary hours on a Sunday (clause 32.2(j)(ii)) 200%
Continuous shiftworker – ordinary hours on a public holiday (clause
32.2(j)(i))
200%
Afternoon or night shift – non-successive shifts – first 3 hours (clause
32.2(e))
150%
Afternoon or night shift – non-successive shifts – after 3 hours
(clause 32.2(e))
200%
Other than continuous shiftworker – ordinary hours on public holiday
(clause 31.7(c))
250%
Full-time and part-time shiftworkers other than those engaged in
vehicle manufacturing covered by clause 4.8(a)(ix)
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Working hours % of ordinary hourly
rate/minimum casual
ordinary hourly rate
Continuous shiftworker – overtime on a public holiday (clause
31.7(b))
200%
Continuous shiftworker – overtime (clause 31.4) 200%
Other than continuous shiftworker – overtime – first 3 hours Monday
to Saturday (clause 31.2(a))
150%
Other than continuous shiftworker – overtime – after 3 hours Monday
to Saturday (clause 31.2(a))
200%
Other than continuous shiftworker – overtime – Sunday (clause 31.6) 200%
Other than continuous shiftworker – overtime on a public holiday
(clause 31.7(c))
250%
Shiftworkers engaged in vehicle manufacturing covered by clause
4.8(a)(ix)
Night shift only
130%
Alternating night and afternoon shifts
118%
Alternating day and night shifts—rate for the night shift
112.5%
Afternoon shift only
118%
Alternating day and afternoon shifts—rate for the afternoon shift
112.5%
Alternating day, afternoon and night shifts—rate for the afternoon
and night shift
112.5%
Continuous afternoon or night shift
112.5%
Saturday
125%
[260] In reply, Ai Group agrees with the submission made by the AMWU127 and the parties
have agreed that the sub-heading ‘Full-time and part-time employees other than afternoon
and night shift workers’ in the table at schedule C.1.1 be deleted. We agree and will amend
the table in the draft variation determination.
[261] ABI raises two issues.
(i) Clause 4.4
[262] ABI submits that the phrase “This award covers any employer which supplies labour
on an on-hire basis in the manufacturing and associated industries and occupations industry
(or industries)” in clause 4.4 of the award is unclear.128 It proposes to replace that phrase with
the following wording:
127 Ai Group reply submission 9 December 2019 at [33]
128 ABI submission, 27 November 2019 at [42].
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‘This award covers any employer which supplies labour on an on-hire basis in the
manufacturing and associated industries.’ 129
[263] At the hearing on 18 December 2019 it was generally agreed that the words ‘industry
(or industries)’ in clause 4.4 (as set out above) should be deleted. We agree and will amend
the draft variation determination accordingly.
(ii) Table C.3.2(a)
[264] ABI submits that explanation of what the ‘100%’ casual rate is in the table in schedule
C.3.2(a) is unclear. 130 Specifically, ABI submits that the text stating that the casual rates are
‘based on’ 25% casual loading is not clear. ABI proposes varying these words to provide that
casual rates are inclusive of 25% casual loading. They submit that this would decrease the
likelihood that a reader of the award may interpret this table as requiring an additional 25%
casual loading to be applied to the ‘100%’ rate. 131
[265] At the hearing on 18 December 2019 it was generally agreed that the issue raised by
ABI be addressed by amending the tables in C.3.2(a) and C.3.2(b) to delete the expression
‘based on the casual loading’ and to insert ‘inclusive of the casual loading.’ We agree and will
amend the draft variation determination accordingly.
[266] Ai Group raises 10 discrete issues.
(i) Clause 31.3 Unrelieved shiftwork on rostered day off
[267] Ai Group submits that there is some inconsistency between the ‘Unrelieved shiftwork
on rostered day off’ clauses in the Exposure Draft at clause 31.3(b) and the corresponding
clause of the current award (clause 40.2(e)). Clause 40.2(e) of the award applies only to
shiftworkers, and to avoid any ambiguity, Ai Group proposes that the following minor
amendment should be made to clause 31.3(c):
‘If an employee a shiftworker is required to work on their rostered day off because of the
absence of a relieving employee, the unrelieved shiftworker must be paid 200% of the ordinary
hourly rate for all hours worked on their rostered day off.’132
[268] At the hearing on 18 December 2019 there was general agreement to Ai Group’s
proposed amendment. We agree and will amend the draft variation determination accordingly.
(ii) Table C.1.1 Table of rates – casual minimum hourly rate
[269] The table at schedule C.1.1 is set out above (see [154]).
[270] Ai Group contends that the expression ‘minimum casual ordinary hourly rate’ in the
heading in the table at C.1.1 is likely to confuse readers of the award, given its similarity to
129 ABI submission, 27 November 2019 at [43].
130 ABI submission, 27 November 2019 at [44].
131 ABI submission, 27 November 2019 at [45].
132 Ai Group submission, 27 November 2019 at [61].
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the expression ‘casual ordinary hourly rate’ which is a defined term in the award and has a
different meaning. The expression ‘casual minimum hourly rate’ is a more appropriate term.
This term is defined in schedule C.3.1.133
[271] Ai Group submits that a similar amendment should be made to the heading of the
second column in the table in schedule C.1.2.134
[272] In reply, the AMWU agrees that the term ‘minimum casual ordinary hourly rate’ is
liable to confuse users but rather than changing the column to ‘casual minimum hourly rate’
the AMWU proposes it be changed to ‘casual ordinary hourly rate’, because the relevant
penalties in the table at C.1.1 are calculated on the ordinary hourly rate (which for a casual is
the casual ordinary hourly rate).
[273] In reply, the AWU does not agree with the proposition that the heading requires
amendment and submits:
‘The expression ‘casual minimum hourly rate’ is not more appropriate as it does not
accurately reflect the entitlements in the award. Penalties and overtime in the award are
calculated on the casual ordinary hourly rate, not on the ‘casual minimum hourly rate.’’135
[274] In a further submission filed on 23 December 2019 Ai Group submits that there are
two problems with what the AMWU has proposed:
Not all of the entitlements in table C.1.1 apply to casuals, eg clause 31.12(d) and (e) –
the 10 hour break provision; and
Not all of the entitlements in table C.1.1 are calculated on the ‘ordinary hourly rate’ or
the ‘casual ordinary hourly rate’. For example, the following entitlements for vehicle
manufacturing employees are calculated on the ‘minimum hourly rate’ and the ‘casual
minimum hourly rate’:
Night shift only (clause 54.1(b)(ii)) 130%
Alternating night and afternoon shifts (clause 54.1(b)(ii)) 118%
Alternating day and night shifts—rate for the night shift (clause
54.1(b)(ii)
112.5%
Afternoon shift only (clause 54.1(b)(ii) 118%
Alternating day and afternoon shifts—rate for the afternoon
shift (clause 54.1(b)(ii))
112.5%
Alternating day, afternoon and night shifts—rate for the
afternoon and night shift (clause 54.1(b)(ii))
112.5%
Continuous afternoon or night shift (clause 54.1(b)(iv) 112.5%
133 Ai Group submission, 27 November 2019 at [63].
134 Ai Group submission, 27 November 2019 at [66]
135 AWU reply submission, 9 December 2019 at [40]
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Saturday (clause 54.1(b)(v)) 125%
[275] Ai Group submits that an appropriate heading for the second column of table C.1.1
would be:
% of ordinary hourly rate/casual ordinary hourly rate/minimum hourly
rate/casual minimum hourly rate
[276] It is our provisional view that the heading for the second column of table C.1.1. be
amended as proposed by Ai Group. Interested parties will have an opportunity to comment on
this proposal when the revised exposure draft and draft variation determinations are published
in January 2020.
(iii) Table C.1.1 Table of Rates – additional clause references
[277] Ai Group submits that the following clause references should be added to the table in
schedule C.1.1: 136
Shiftworkers engaged in vehicle manufacturing covered by clause
4.8(a)(ix)
Night shift only (clause 54.1(b)(ii)) 130%
Alternating night and afternoon shifts (clause 54.1(b)(ii)) 118%
Alternating day and night shifts—rate for the night shift (clause
54.1(b)(ii))
112.5%
Afternoon shift only (clause 54.1(b)(ii)) 118%
Alternating day and afternoon shifts—rate for the afternoon shift (clause
54.1(b)(ii))
112.5%
Alternating day, afternoon and night shifts—rate for the afternoon and
night shift (clause 54.1(b)(ii))
112.5%
Continuous afternoon or night shift (clause 54.1(b)(iv)) 112.5%
Saturday (clause 54.1(b)(v)) 125%
[278] The AMWU agrees with Ai Group.
[279] We will amend the table of rates as proposed by Ai Group.
(iv) Schedule C.2 Full time and part time employees’ hourly rates – footnote
[280] Ai Group submits that the following amendment should be made to footnote 1 in
clauses C.2 and C.3.2(a) on the basis that these rates are only relevant to vehicle
136 Ai Group submission, 27 November 2019 at [65].
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manufacturing employees covered by clause 4.8(a)(ix), not all vehicle manufacturing
employees covered by the Award: 137
‘Rates in bold are for Vehicle Manufacturing employees covered by clause 4.8(a)(ix) only’
[281] This submission is repeated with respect to schedule C.3.2(a).
[282] In reply, the AMWU notes that the cross reference proposed by Ai Group ‘appears to
be incorrect’. Ai Group refers to clause 4.8(a)(ix), however that clause does not deal with
vehicle manufacturing at all, rather it is an ancillary part of the traditional manufacturing
award coverage. Clauses 4.8(a)(xi) and (xii) deal with vehicle manufacturing. The AWU
makes a similar submission.
[283] The AMWU notes that this raises a broader issue with the Exposure Draft and
‘many/all of the references to 4.8(a)(ix) may need to be reconsidered’.
[284] At the hearing on 18 December 2019 Ai Group submitted that the correct cross
reference was 4.8(a)(xi); all other parties agreed. We will amend footnote 1 in schedule C.2
andC.3.2(a) as proposed by Ai Group save that the cross reference will be to clause 4.8(a)(xi).
We will amend the draft variation determination accordingly.
[285] We note that clause 4.8(a)(ix) is referred to in the following clauses in the Exposure
Draft:
Clause 11.2(d)
Clause 17.3(a)
Clause 17.4(a)
Clause 17.5(b)(i)
Clause 18.1(c)
Clause 18.2(a)
Clause 18.3
Clause 20.5(b)
Clause 20.5(c)(i)
Clause 20.5(d)
Clause 20.5(d)(i)
Clause 25.1
Clause 25.2
Clause 29.1(c)(i)
Clause 29.1(d)(i)
Clause 29.2(c)(i)
Clause 29.3(k)(ii)
Clause 29.3(w)(i)
Clause 29.5(d)
Clause 31.3(a)
Clause 31.4
Clause 31.8(a)
Clause 31.11(a)
137 Ai Group submission, 27 November 2019 at [68]-[69].
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Clause 31.12(a)
Clause 31.13(a)
Clause 32.2(a)
Clause 45
Schedule A.2
Schedule B.1
Schedule C.1.1
[286] We will amend the cross references in each of these clauses in the draft variation
determination to clause 4.8(a)(xi).
(v) Schedule C.3.2(b) Casual rates based on 17.5% casual loading for certain
vehicle manufacturing employees in the technical field
[287] Ai Group submits that the heading in schedule C.3.2(b) needs to be clarified for this
table to avoid confusion because only a very small cohort of employees are entitled to a
17.5% loading. The heading should be: 138
‘Casual rates – based on a 17.5% casual loading for certain vehicle manufacturing
employees in the technical field covered by clause 4.8(a)(ix) - , in accordance with See
clause 11.2(d) and clause 46.1.’
[288] Ai Group also submits that the words ‘+17.5%’ in the second column in the table in
C.3.2(b) should be deleted to avoid confusion. The 17.5% casual loading is referred to in the
heading row above and is incorporated within the definition of ‘casual minimum hourly
rate’.139
[289] Subject to the cross reference being corrected to clause 4.8(a)(xi) all parties agree to
Ai Group’s proposed change. We also agree and will make the amendment proposed by Ai
Group, but deleting the reference to clause 4.8(a)(ix) and inserting clause 4.8(a)(xi).
(vi) Schedule D.1.2 Wage related allowances
[290] Ai Group submits that the preamble in schedule D.1.2 should be amended as
follows: 140
‘See clause 29 – Allowances and special rates for full details of wage-related allowances
payable under this award. In addition, clause 52 deals with certain additional or alternative
wage-rated allowances for vehicle manufacturing employees covered by clause 4.8(a)(ix) of
the award.’
[291] Subject to the cross reference being corrected to clause 4.8(a)(xi) all parties agree to
Ai Group’s proposed change. We also agree and will make the amendment proposed by Ai
Group, but deleting the reference to clause 4.8(a)(ix) and inserting clause 4.8(a)(xi).
138 Ai Group submission, 27 November 2019 at [70].
139 Ai Group submission, 27 November 2019 at [71].
140 Ai Group submission, 27 November 2019 at [72].
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(vii) Schedule D.1.3 Wage related allowances – Special rates
[292] Ai Group submits that the preamble in schedule D.1.3 should be amended as
follows: 141
‘See clause 29 – Allowances and special rates for full details of wage-related allowances –
special rates payable under this award. In addition, clause 52 deals with certain additional or
alternative wage-rated allowances – special rates for vehicle manufacturing employees
covered by clause 4.8(a)(ix) of the award.’
[293] Subject to the cross reference being corrected to clause 4.8(a)(xi) all parties agree to
Ai Group’s proposed change. We also agree and will make the amendment proposed by Ai
Group, but deleting the reference to clause 4.8(a)(ix) and inserting clause 4.8(a)(xi).
[294] Ai Group submits that the words ‘per hour unless otherwise stated’ should be deleted
from the heading for column 4 because column 5 deals with the period of payment. The
AMWU and AWU are not opposed to this proposal. We agree and will make the proposed
change.
[295] Ai Group also submits that the following wage-related allowances – special rates are
missing from the table in schedule D.1.3: 142
Allowances Clause $ Payable
Glass or slag wool (Vehicle Manufacturing
Employees covered by clause 4.8(a)(ix))
52.5 0.84 per hour
Handling garbage (Vehicle Manufacturing
Employees covered by clause 4.8(a)(ix))
52.6 0.65 per hour
Boiler house employees (Vehicle Manufacturing
Employees covered by clause 4.8(a)(ix))
52.7
0.65 per hour
Fork-lift or cranes allowance (Vehicle
Manufacturing Employees covered by clause
4.8(a)(ix))
52.8 2.50 per day
[296] Subject to the cross reference being corrected to clause 4.8(a)(xi) all parties agree to
Ai Group’s proposed change. We also agree and will make the amendment proposed by Ai
Group, but deleting the reference to clause 4.8(a)(ix) and inserting clause 4.8(a)(xi).
(viii) Schedule D.2.1 Expense related allowances
[297] Ai Group submits that the preamble in schedule D.2.1 should be amended as
follows: 143
141 Ai Group submission, 27 November 2019 at [73].
142 Ai Group submission, 27 November 2019 at [75].
143 Ai Group submission, 27 November at [76].
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‘See clause 29 – Allowances and special rates for full details of expense-related allowances
payable under this award. In addition, clause 52.1 and clause 55.4 deal with certain alternative
expense-rated allowances for vehicle manufacturing employees covered by clause 4.8(a)(ix) of
the award.’
[298] Subject to the cross reference being corrected to clause 4.8(a)(xi) all parties agree to
Ai Group’s proposed change. We also agree and will make the amendment proposed by Ai
Group, but deleting the reference to clause 4.8(a)(ix) and inserting clause 4.8(a)(xi).
[299] Ai Group submits that the words ‘per hour unless otherwise stated’ should be deleted
from the heading of column 4 because column 5 deals with the period of payment.
[300] In reply the AMWU states that it ‘does not follow this submission. Those words ‘per
hour unless otherwise stated’ do not appear in the table at D.2.1.’144 Similarly, the AWU notes
that the words Ai Group suggests should be deleted do not appear in this table.
[301] At the hearing on 18 December 2019 Ai Group clarified its position and stated that the
proposed change is to be made to schedule D.1.3.
[302] It is our provisional view that the words ‘per hour unless otherwise stated’ in the
heading of column 4 in schedule D.1.3 be deleted. Interested parties will have an opportunity
to comment on this amendment when the revised exposure draft and draft variation
determination are published in January 2020.
(ix) Schedule D.2.1 Expense related allowances – tool allowance
[303] Ai Group submits that the following amendments need to be made to the tool
allowance in the table at schedule D.2.1 because the table currently states that apprentices are
entitled to a $15.29 per week tool allowance which is not correct:145
Allowances Clause $ Payable
Tool allowance – tradespersons and apprentices12 29.1(c) 15.29 Per week
[304] In reply the AMWU submits that ‘it is not quite correct to say that apprentices are not
entitled to a tool allowance of $15.29. They are entitled to a percentage of the $15.29
amount.’146 The AMWU submits that this issue should be resolved by amending the table as
follows:
Allowance Clause $ Payable
Tool allowances –
tradespersons and
apprentices1
29.1(c) 15.292 Per week
1. These allowances apply for all purposes of the award.
144 AMWU reply submission, 9 December 2019 at [53]
145 Ai Group submission, 27 November at [78].
146 AMWU reply submission, 9 December 2019 at [61]
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2. Tool allowance for apprentices is calculated as a percentage of this amount. See clause 29.1(c)(v) for
calculating the tool allowance for apprentices.
[305] At the hearing on 18 December 2019 Ai Group agreed with the AMWU’s proposal.
We also agree and will amend the table in the draft variation determination as proposed by the
AMWU.
(x) Schedule D.2.1 Expense related allowances – missing allowances
[306] Ai Group submits that the following expense-related allowances are missing from the
table in schedule D.2.1, none of which apply for all-purposes of the award: 147
Allowances Clause $ Payable
Tool allowance – tradespersons (Vehicle
Manufacturing Employees covered by clause
4.8(a)(ix))
52.1(a) Per week
Tool allowance apprentices (Vehicle
Manufacturing Employees covered by clause
4.8(a)(ix))
52.1(b) Per week
Level 1 of First Year 6.48 Per week
Level 2 or Second Year 8.38 Per week
Level 3 or Third Year 11.51 Per week
Level 4 of Fourth Year 11.51 Per week
Meal allowance (Vehicle Manufacturing
Employees covered by clause 4.8(a)(ix)) 55.4 14.34 Per meal
[307] Subject to the cross reference being corrected to clause 4.8(a)(xi) all parties agree to
Ai Group’s proposed change. We also agree and will make the amendment proposed by Ai
Group, but deleting the reference to clause 4.8(a)(ix) and inserting clause 4.8(a)(xi).
[308] Given the number of amendments to be made to the exposure draft and draft variation
determination we will issue revised drafts in January 2020 and a statement setting out the
process for parties to comment on the revised drafts prior to the publication of a variation
determination by 14 February 2020.
6.18 Meat Industry Award
[309] In addition to the correction of some minor errors, Ai Group raises three issues.
(i) Clause 7.2(a)
[310] Ai Group submits that the reference in clause 7.2(a) to clause 10.2 should be deleted
as it is not a facilitative provision. Clause 10.2 simply requires that an employer and part-time
employee reach agreement at the time of engagement on the employee’s hours of work. It
does not “allow agreement between the employer and employees on how specific award
147 Ai Group submission, 27 November 2019 at [79].
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provisions are to apply at the workplace or section or sections of it” (per clause 7.1).148 We
agree and we will vary clause 7.2(a) in the draft variation determination to delete the
reference to clause 10.2.
(ii) Clause 22.1(a) Entitlement to overtime and payment
[311] Ai Group submits that there has been a substantive change to the ‘Entitlement to
overtime and payment’ clause in the exposure draft as compared to the current award.149
[312] Clause 36.1(a) of the current award says as follows:
‘All time worked outside ordinary working hours on any day as prescribed in clause 31—Hours
of work (or in the case of a shiftworker, outside the hours rostered as ordinary shiftwork hours
in accordance with clause 34—Rostering) will be deemed to be overtime and be paid for at
time and a half for the first three hours and double time thereafter.’
[313] Accordingly, day workers are entitled to payment at overtime rates for time worked
outside ordinary hours on any day as prescribed by clause 31. Clause 31 of the award has
been reproduced at clauses 14.1 – 14.6 of the Exposure Draft. However, clause 14 of the
Exposure Draft also includes:
Clause 14.7 (Rostering); and
Clause 14.8 (Make up time).
[314] Clause 22.1(a) of the Exposure Draft requires the payment of overtime rates to day
workers for all work performed outside ordinary working hours on any day as prescribed in
clause 14. This would include clauses 14.7 and 14.8. Ai Group submit that this is a
substantive change to the award and particularly problematic in respect of clause 14.7. Ai
Group further submits that, read together, clause 22.1(a) would appear to suggest that day
workers are entitled to overtime rates for all time worked outside rostered hours which is not
presently the case. Only shiftworkers are entitled to overtime rates by reference to the
rostering clause (i.e. clause 14.7 in the Exposure Draft and clause 34 in the award).150
[315] Ai Group proposes that clause 22.1(a) be amended by replacing the reference to clause
‘14’ with ‘clauses 14.1 – 14.6’.151
[316] We agree but will retain the reference to clause 14.7 for shiftworkers, which appears in
the brackets. We will amend the draft variation determination accordingly.
(iii) Clause 25.3(b) Payment for annual leave
[317] Clause 37.3(b) of the current award states:
148 Ai Group submission, 27 November 2019 at [81].
149 Ai Group submission, 27 November 2019 at [84].
150 Ai Group submission, 27 November 2019 at [86].
151 Ai Group submission, 27 November at [87].
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37.3 Payment for annual leave
(b) For the purpose of ascertaining ordinary time earnings in clause 37.3(a)(i), the
following are not included:
(i) incentive-based payments (other than those coming within clause 24 –
Payment by results);
(ii) bonuses;
(iii) loadings (other than the loading for a daily hire and part-time daily hire
employee as set out in clause 14 – Daily hire);
(iv) monetary allowances;
(v) overtime;
(vi) penalty payments (other than ordinary hour penalty rates for employees
provided for in this award and only if the employee is regularly rostered to work on
weekends); and
(vii) any other separately identifiable amounts.
[318] Clause 25.3 of the Exposure Draft states:
25.3 Payment for annual leave
(a) Before the start of an employee’s annual leave, the employer must pay the
employee for the employee’s ordinary hours of work:
(i) at the employee’s ordinary time earnings for the hours the employee
would have worked during the period; and
(ii) any annual leave loading payable under clause 25.5.
(b) For the purpose of ascertaining ordinary time earnings in clause 25.3(a)(i), the
following are not included:
(i) incentive based payments (other than those coming within clause 18 –
Payment by results);
(ii) bonuses;
(iii) loadings (other than the loading for daily hire and part-time daily hire
employees as set out in clause 11.10);
(iv) monetary allowances;
(v) overtime;
(vi) penalty payments (other than ordinary hour penalty rates for employees
provided for in this award and only if the employee is regularly rostered
to work on weekends); and
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(vii) any other separately identifiable amounts.
(c) In the event of an employee being engaged 4 weeks prior to the
commencement of leave, or termination of employment, in 2 or more
classifications entitling the employee to different rates of pay, the wages to be
paid to the employees will be the average of the weekly wage rates for the
classifications in which the employee was engaged.
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).
[319] Ai Group submits that pursuant to clause 37.3(b) of the award, shift allowances
payable pursuant to clause 33.9 do not form part of an employee’s ordinary time earnings,
clause 37.3(b)(iv) excludes monetary allowances. The Exposure Draft does not prescribe shift
allowances; it prescribes rates that are payable for shiftwork at clause 23.3. Ai Group submits
that it appears that clause 25.3(b) does not exclude additional amounts payable to an
employee for the performance of shifts. Accordingly, Ai Group contends that a new subclause
under clause 25.3(b) should be inserted, excluding “shift rates”. 152
[320] We agree and will amend the draft variation determination accordingly.
(iv) Schedule B.5 – Shiftworkers
[321] ABI supports the inclusion of new columns into the tables for non-successive shifts in
clauses B.5.1 and B.5.3, which refers the reader back to clause 23.3(d) (and 23.3(e) (for
casuals). 153 ABI notes that if proposed amendment is made, then the words “including non-
successive shifts” can be removed from the heading in Schedule B.5.2.154 Similarly, Ai Group
submits that the changes proposed by the Commission to schedule B.5 should be made. 155 We
will make the changes proposed.
6.19 Pastoral Award
[322] In addition to the correction of some minor errors the AWU raises five issues in
relation to this award.
(i) Clause 11.7
[323] Clause 11.7 of the Exposure Draft states:
11.7 Farm and livestock hand at shearing or crutching
(a) Subject to clause 11.7(b), during any time an employee engaged on a weekly basis
under Part 6—Broadacre Farming and Livestock Operations is employed in shearing
152 Ai Group submission, 27 November 2019 at [89]-[91].
153 ABI submission, 27 November 2019 at [53]’
154 ABI submission, 27 November 2019 at [53]
155 Ai Group submission, 27 November at [92].
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or crutching operations of the principal employer, Part 9—Shearing Operations will
not apply.
(b) Exception
(i) Clause 11.7(b)11.7(a) will not apply to any farm and livestock hand engaged
by the week who:
works in the employer’s shearing shed; and
who has been engaged by the employer during the period commencing one
week before the actual shearing or crutching begins; and
who is discharged during the week after the shearing or crutching actually
ends.
(ii) In the circumstances set out in clause 11.7(b)(i), the employee will be paid
station hand rates when performing work covered by Part 5 of this award and
shearing rates when performing work covered by Part 8 of this award.
[324] The corresponding provision in the current award is at clause 10.6 (with clause 10
dealing more broadly with all categories of employment):
10.6 Farm and livestock hand at shearing or crutching
Notwithstanding anything else contained in this award, Part 7—Shearing Operations
of the award will not apply to any employee engaged to work on a weekly basis under
Part 4—Broadacre Farming and Livestock Operations during any time the employee
is employed in shearing or crutching operations of the principal employer. Provided
that this clause will not apply to any Farm and livestock hand engaged by the week
who works in the employer’s shearing shed and who has been engaged by the
employer during the period commencing one week before the actual shearing or
crutching begins and who is discharged during the week after the shearing or
crutching actually ends. In such case, the employee will be paid station hand rates
when performing work covered by Part 4 of this award and shearing rates when
performing work covered by Part 7 of this award.
[325] The AWU submits that the inclusion of the ‘Farm and livestock hand at shearing or
crutching’ clause (clause 11.7) within clause 11 may cause confusion because clause 11 is
otherwise solely concerned with casual employees and this provision is directed at weekly
employees.156 The AWU proposes to remove the provision from clause 11.7 and insert it as a
new clause 8.3 in the Exposure Draft, to avoid extensive renumbering throughout the rest of
the Exposure Draft.157
[326] Clause 8 of the Exposure Draft would then read:
8. Types of employment
8.1 Employees under this award will be employed in one of the following categories:
(a) full-time;
156 AWU submission 27 November 2019 at [21].
157 AWU submission 27 November 2019 at [21].
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(b) part-time; or
(c) casual.
8.2 At the time of engagement an employee will inform each employee of the terms of
their engagement and in particular whether they are to be full-time, part-time or casual.
8.3 Farm and livestock hand at shearing or crutching
(a) Subject to clause 8.3(b), during any time an employee engaged on a weekly basis Part
6—Broadacre Farming and Livestock Operations is employed in shearing or crutching
operations of the principal employer, Part 9—Shearing Operations will not apply.
(b) Exception
(i) Clause 11.7(b)8.3(a) will not apply to any farm and livestock hand engaged
by the week who:
works in the employer’s shearing shed; and
who has been engaged by the employer during the period commencing one
week before the actual shearing or crutching begins; and
who is discharged during the week after the shearing or crutching actually
ends.
(ii) In the circumstances set out in clause 8.3(b)(i), the employee will be paid
station hand rates when performing work covered by Part 5 of this award and
shearing rates when performing work covered by Part 8 of this award.
[327] At the hearing on 18 December 2019 the NFF supported the AWU’s proposed
variation.
[328] We agree with the AWU’s proposed amendment and will amend the draft variation
determination accordingly.
(ii) Clause 19.2
[329] Clause 19.2 of the Exposure Draft states:
19.2 Conversion to hourly entitlement
An employer may reach agreement with the majority of employees concerned to convert the
annual leave entitlement in section 87 of the Act to an hourly entitlement for administrative
ease (e.g. 152 hours for a full-time employee entitled to four 4 weeks’ annual leave).
[330] The AWU also submits that the example located in brackets at the end of clause 19.2
should be deleted because it has the potential to undermine the NES for the reasons identified
by a Full Bench of the Commission in RACV158.159 In reply ABI submitted that it does not
158 RACV Road Service Pty Ltd v Australian Municipal, Administrative, Clerical and Services Union [2015] FWCFB 8554
159 AWU submission 27 November 2019 at [22].
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consider the removal of the example necessary as it merely identifies the hourly annual leave
entitlements for a 38 hour per week employee.
[331] As discussed at the hearing on 18 December 2019, we will amend the example to
clarify the source of the 152 hours, that is ‘4 weeks x 38 hours per week.’
(iii) Clause 24
[332] The AWU also submits that the cross-reference in clause 24.3 to clause 41 should be
amended to clause 44. The AWU notes that the rates appear in clause 44 and clause 41 only
refers the reader to clause 44.160 We agree that the cross reference should be to clause 44 and
will amend the draft variation determination accordingly.
(iv) Clause 38
[333] Clause 38 of the Exposure Draft states:
38. Continuous work hours – Ordinary hours and roster cycles for shiftworkers
38.1 Application of clause 3138
Clause 3138 applies to shiftworkers who work on continuous work as defined in
clause 38.2.
38.2 Definition of continuous work
Continuous work means work carried on with consecutive shifts for 24 hours on each
day for at least 6 days in a row without interruption (other than for breakdowns, for
meal breaks or due to unavoidable causes beyond the employer’s control).
38.3 Maximum hours in certain periods
(a) In any 28 day period, a shiftworker working a shift:
(i) is not to work more than 152 ordinary hours; and
(ii) is to average 38 ordinary hours a week, including crib time.
(b) However, the employer and the majority of employees concerned may agree
on a roster system that results in the weekly average of 38 ordinary hours being
achieved over a period that is longer than 28 days, but no longer than 26 weeks.
38.4 Length of shifts
(a) A shiftworker is to work a shift of up to 8 ordinary hours at the times the
employer requires.
(b) A shift may not be longer than 12 ordinary hours.
160 AWU submission 27 November 2019 at [23].
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(c) If a shift is to be longer than 8 ordinary hours, then it is to be agreed by the
employer and the majority of employees in the plant, or work section, or
sections concerned.
38.5 Frequency of shifts
An employee must not be required to work more than one shift in any 24 hours, except at
regular changeover of shifts.
38.6 Crib time for shiftworkers
A continuous hours shiftworker is allowed 20 minutes crib time on each shift, which is
counted as time worked.
[334] The AWU submits that the reference to a “continuous hours shiftworker” in clause
38.6 should be amended to a “continuous work shiftworker” because “continuous work” is the
term defined in clause 38.2.161
[335] We agree with the AWU’s proposed amendment and will amend the draft variation
determination accordingly.
(v) Schedule B
[336] The AWU notes that it has been agreed during the ‘Overtime for Casuals’ common
issue proceedings that the 25% casual loading is paid on a cumulative basis for overtime
hours under the current award. As a result, the AWU submits that the casual overtime rate
tables can be inserted into the broadacre farming and livestock operations, pig breeding and
raising and poultry farming sections of Schedule B.162 Consistent with our general approach
the award will be amended once the variation determination has been issued by the Part time
and Casual Full Bench.
[337] The NFF raises five issues.
(i) Clause 17.2
[338] The table at clause 17.2 provides as follows:
17.2 Wage-related allowances
(a) All-purpose allowances
Allowances paid for all purposes are included in the rate of pay of an employee who is
entitled to the allowance, when calculating any penalties or loadings or payment while they
are on annual leave. The following allowances are paid for all purposes under this award:
(i) leading hand allowance (clause 17.2(b)); and
161 AWU submission 27 November 2019 at [25].
162 AWU submission 27 November 2019 at [26].
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(ii) first aid allowance (clause 17.2(c)).
(b) Leading hands
(i) A leading hand in charge of two 2 or more people must be paid as follows:
In charge of $ per week
2-6 employees 23.07
7-10 employees 26.88
11-20 employees 38.31
More than 20 employees 48.14
(ii) The allowance contained in clause 17.2(b)(i) will apply to part-time
employees on a pro-rata basis.
[339] The NFF submit that the source for the figures in this table is unknown and that the
Pastoral Award 2010 presently provides for the leading hand allowance to be a percentage of
the relevant employee’s salary. Clause 17.4 of the Pastoral Award currently provides:
17.4 All-purpose allowances
The following allowances apply for all purposes of this award:
(c) Leading hands
A leading hand in charge of two or more people must be paid as follows:
In charge of % of the standard rate
2–6 employees 115% per week extra
7–10 employees 134% per week extra
11–20 employees 191% per week extra
More than 20 employees 240% per week extra
[340] The figures in the Exposure Draft are based on a percentage of the standard rate as set
out in the current award. In the December 2019 Statement we expressed the provisional view
that no amendment is necessary. At the hearing on 18 December 2019 the NFF did not contest
our provisional view and withdrew its submission in respect of clause 17.2.
(ii) Clause 37.2
[341] Clause 37 of the Exposure Draft states:
37 Ordinary hours and roster cycles for non-shiftworkers
37.1 Maximum hours in certain periods
(a) An employee’s ordinary hours of work will be up to 8 hours a day between
6.00 am and 6.00 pm Monday to Friday.
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(b) However, the employee and the employer may agree:
(i) that the employee is to work up to 12 ordinary hours in a day; and
(ii) to change the span of hours as allowed under clause 30.1(a).
(c) The employer and the majority of employees at a workplace may agree about
how the 38 hour week is implemented at that workplace.
(d) In any 4 week period, a piggery attendant is not to work more than 152 ordinary
hours.
37.2 Minimum payment for one week
If an employee works less than 38 hours in one week in a 4 week period, then the employer
must pay the employee for 38 hours work for that week.
[342] The Commission has previously expressed its decision in regard to the redraft of this
clause as follows (noting that clause 37.2 of the 14 October 2019 Exposure Draft was
previously numbered 30.2):
‘[45] The NFF also submitted that clause 30.2 of the exposure draft requires the employer to
pay an ‘employee’ for a 38 hour week, regardless of the hours actually worked by the
‘employee’, whereas clause 35.1 of the current award only requires an employer to ‘use its
best endeavours’ to pay the employee for 38 hours. The NFF submitted that the proposed
clause may have significant consequences for part-time employees, where an employee takes
unpaid leave or if an employee works more than 38 hours in one week but less than 38 in the
next week, as provided by a 4 weekly averaging system.
[46] The relevant part of clause 35.1 of the current award is italicised below:
‘35.1 Ordinary hours for Piggery attendants will not exceed 152 in any four week
period. If an employee works less than 38 hours in one week of any four week period
then the employer will use its best endeavours to ensure that the employee is paid for
38 hours work during any such week…’ (emphasis added)
[47] The wording of clause 30.2 of the plain language re-draft has been amended because the
current clause is vague and aspirational in nature and does not provide an enforceable
entitlement to an employee or an obligation on an employer. In previous decisions, the
Commission has declined to vary awards to insert provisions which may be characterised as
‘aspirational’ and which have little or no work to do. On this basis we have decided not to
revert to the current award wording.
[48] The NFF submitted that new clauses 31 – 34 are not necessary and are potentially risky
because the current provisions are not a source of debate or dispute. The NFF submitted that
given this, it is difficult to identify a strong rationale for introducing new provisions that may
promote confusion and dispute or have other unintended consequences. The NFF submitted
that the re-drafted clauses contain a number of differences to the current award provisions.’163
(footnotes omitted)
163 [2018] FWCFB 6368 at [45] to [48]
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[343] While the NFF accepts that the language is not ideal, it submits that the intent of the
current clause is clear. It obliges a piggery employer to provide 38 hours for the employee
every week, except where there is legitimately nothing for the employee to do. As such, the
NFF submit that the clause has “work to do” and is more than purely aspirational.
[344] The NFF submit further that if in its current form the clause is purely aspirational then
changing it to a clause which clearly has operative effect goes beyond the remit of the plain
English redraft.
[345] The NFF’s concern is that as redrafted, where the employer averages the work over 4
weeks, so that where the employee works only 36 hours in Week 1 — but, for example, 40 in
Week 2 — the employer will still have to pay for 38 hours in Week 1. It could also affect
part-time and possibly casual arrangements.
[346] In the December 2019 Statement we noted that it appears that the cross reference to
clause 30.1(a) in clause 37.1(b)(ii) may be incorrect and we expressed the provisional view
that the cross reference be amended to clause 37.1(a). At the hearing on 18 December 2019 no
party opposed our provisional view. We confirm our provisional view and will amend the
cross reference in the draft variation determination.
[347] In respect of the substantive issue raised by the NFF, this will be the subject of a
conference on Wednesday 22 January 2020. We note that in correspondence dated 20
December 2019 the AWU proposed the deletion of clause 37.2. This proposal can be
discussed at the conference. A notice of listing will be published in due course.
(iii) Clause 50
[348] The NFF submit that for consistency, the second column in the table at clause 50
should read “If not found employee” or the third column should read “If Found employee”.
[349] The relevant part of clause 50 states:
50. Minimum rates
50.1 The Minimum rates for Shearers will be:
Minimum rates for shearing (by machine) Not found
employee1
$
If found
employee
$
Flock sheep – wethers, ewes and lambs – rate per 100 318.62 286.27
Flock sheep – wethers, ewes and lambs – rate per day 238.04 205.69
1 These rates are calculated in accordance with clause A.1.
[350] The current Pastoral Award uses the terminology ‘If found’ and ‘If not found’ in
clause 45.1. In the December 2019 Statement we expressed our provisional view that the
second column of the table should be amended to include the word ‘If’ before the word ‘not.’
[351] At the hearing on 18 December 2019 no party opposed our provisional view. We
confirm our provisional view and will amend the draft variation determination accordingly.
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(iv) Clause 54.8
[352] Clause 49.8 of the current award reads “subject to this award, the employer will be
ready…”. The Exposure Draft has deleted “subject to this award”, a change which the NFF
submits could affect the interpretation of the award:
49.8 Provision of sheep
(a) The total number of sheep to be shorn (or crutched) at the shearing (or crutching) will
not be more than the maximum number agreed upon nor less than the minimum
number agreed upon nor will the number of Shearers employed exceed the number
agreed upon.
(b) Subject to this award, the employer will be ready to commence shearing (or crutching)
on the date appointed and will keep the Shearers (or Crutchers) fully supplied with
sheep until the completion of the shearing (or crutching). But the employer will not be
bound to furnish the agreed minimum number of sheep or to be so ready or to so keep
the employee fully supplied if prevented by any cause unavoidable by them; provided,
however, that the employer will inform the employee, as soon as is reasonably
possible, whether, and to what extent, the employee will be or is likely to be so
prevented.
Provided also that when the employer is a contractor shearing or crutching sheep
under contract with an owner or the owner’s agent, the failure of the owner or agent to
keep the contractor supplied with sheep for shearing (or crutching) will not be deemed
to be a cause unavoidable by the contractor unless the owner or agent is prevented
from supplying sheep because of any unavoidable cause.
(Emphasis added)
[353] At the hearing on 18 December 2019, the NFF was asked to explain the provisions of
the award that may have an impact on this clause and why the words ‘subject to this award’
are necessary. The NFF referred to three provisions, clauses 54.3, 54.4(b) and 54.4(c). We
will amend clause 54.8 to add the following introductory words:
‘Subject to clause 54.3 and clause 54.4(b) and (c)’
[354] In correspondence dated 20 December 2019 the AWU proposed that the introductory
words to clause 49.8 read:
‘subject to other conditions in the award concerning the provision of sheep’.
[355] This proposal will be discussed at the conference on 22 January 2020.
(v) Clause 54.4(b)
[356] At the hearing on 18 December 20196 the NFF raised a further issue, regarding clause
54.4(b) of the exposure draft, which states:
(b) The employer need not pen sheep for shearing (or crutching) which in the
honest opinion of the employee should not be shorn or crutched because they
are too wet to be short (or crutched), without responsibility for any delay.
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[357] The NFF submits that the word ‘employee’ should read ‘employer.’
[358] At the hearing we indicated that on the face of it we thought the NFF was correct. As
the issue was raised late we provided the AWU with a few days to indicate whether they
opposed the amendment of clause 54.4(b) to delete ‘employee’ and insert ‘employer.’ There
was no subsequent correspondence from the AWU.
[359] We note that clause 54.4 generally deals with employer requirements in respect of the
condition of sheep, indeed the clause heading reads ‘Conditions of sheep – employer
requirements.’ Further, clause 54.4(c) states:
(c) The employer may also withdraw sheep which have been penned for shearing
(or crutching) when, in the employer’s honest opinion, the wool is too wet for
pressing, without responsibility for any delay.
[360] Plainly, the context supports the amendment proposed by the NFF.
[361] The amendment is also supported by the terms of various pre-modernisation
instruments which informed the making of the current award, for example:
Pastoral Industry Award 1998: clause 24.3.3(b) and (c);
Pastoral Employees (State) Award (WA): clause 40 ‘Wet Sheep’;
Shearing Industry Award – State 2003 (QLD) clause 4.9(d); and
Shearing Industry Award (Tas) clause 40(a) and (b).
[362] We agree with the NFF that the word ‘employee’ in clause 54.4(b) should be
‘employer’ and we will amend the draft variation determination accordingly.
6.20 Pharmaceutical Industry Award
[363] Ai Group raises three issues.
(i) Clause 13.2 and 13.3
[364] Ai Group refer to its submissions filed on 23 October 2019 in which it proposed
various changes to clauses 13.2 and 13.3 of the Exposure Draft (at the time of the submission
the relevant clauses appeared as 8.2 and 8.3, consistent with the last published version of the
Exposure Draft) in response to an issue raised by the AWU during proceedings before the Full
Bench on 9 October 2019.
[365] In its submissions dated 23 October 2019, Ai Group proposed to vary the clauses as
follows:164
‘8.2 Ordinary hours—day workers
164 Ai Group submission, 23 October 2019 at pp. 2-3.
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(a) The ordinary hours of work for a full time day worker are an average of
38 hours per week but not exceeding 152 hours in 28 consecutive days.
(b) Ordinary hours are worked continuously, except for meal breaks and
rest pauses, between 7.45 am and 5.15 pm, Monday to Friday.
(c) Where the employer and the majority of employees in the affected
plant, work section or sections agree, the spread of hours may be
altered by up to one hour at either end of the spread.
(d) The ordinary hours of work for a part-time employee will be in
accordance with clause 10–Part-time employees.
(e) The ordinary hours of work for a casual day worker are an average of
up to 38 hours per week but not exceeding 152 hours in 28 consecutive
days.
8.3 Ordinary hours—shiftworkers
(a) The ordinary hours of work for a full-time shiftworkers are an average
of 38 hours per week but not exceeding 152 hours in 28 consecutive
days.
(b) Ordinary hours must not exceed eight hours in any one day.
(c) At the discretion of the employer, ordinary hours must be worked
continuously on Monday to Friday, except for meal breaks.
(d) Except at changeover of shifts, an employee must not be required to
work more than one shift in each 24 hours.
(e) The ordinary hours of work for a part-time employee will be in
accordance with clause 10–Part-time employees.
(f) The ordinary hours of work for a casual shiftworker are an average of
up to 38 hours per week but not exceeding 152 hours in 28 consecutive
days.’
[366] Ai Group continues to rely on that submission and submit that the changes there
proposed should be made.165 ABI supports Ai Group’s submission and the AWU agreed to
the proposed changes.
[367] We agree and will vary the draft variation determination accordingly.
(ii) Clauses 19.1 and 19.2 Overtime
[368] Clauses 19.1 and 19.2 of the Exposure Draft state:
165 Ai Group submission, 27 November at [95].
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19.1 Definition of overtime
(a) For a full-time or casual employee overtime is any time worked:
(i) outside the times of beginning and ending work in any one day;
(ii) within the times of beginning and ending work but in excess of 8 hours in any
one day;
(iii) on a Saturday, Sunday, public holiday or rostered day off.
(b) For a part-time employee, overtime is any time worked in excess of the employee’s
hours as agreed in accordance with clauses 10.2 and 10.3.
19.2 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
% of minimum hourly
rate
Minimum
payment
%
Day workers
Monday to Friday working overtime within
the times of beginning and ending work but
in excess of 8 hours in any one day:
– first 2 hours 150 –
– after 2 hours 200 –
Shiftworkers
Monday to Friday working overtime within
the times of beginning and ending work but
in excess of 8 hours in any one day:
– first 3 hours 150 –
– after 3 hours 200 –
All employees
Monday to Friday outside the times of
beginning and ending work in any one day:
– first 2 hours 150 –
– after 2 hours 200 –
Saturday – first 2 hours 150 3 hours
Saturday – after 2 hours 200 3 hours
Sunday all day 200 3 hours
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For overtime worked on: Overtime rate
% of minimum hourly
rate
Minimum
payment
%
Rostered day off 250 –
Public holiday all day 250
[369] Ai Group submits that there are a number of issues arising from clauses 19.1 and 19.2.
Firstly, clause 19.1 defines all time worked in the circumstances described at clauses
19.1(a)(i) – (iii) as overtime. Ai group submits that it is not clear that this would necessarily
be the case under the current award. By way of example, work performed on a public holiday
could, in Ai Group’s view, constitute ordinary hours under the current award. The award does
not mandate that it be treated as overtime.166
[370] Additionally, by virtue of clause 19.1(a)(iii) any work performed on a rostered day off
would be treated as overtime. Ai Group submits that this is inconsistent with clause 25.5 of
the current award which provides that where time is worked by an employee on an RDO, the
employee is entitled to be paid either 250% or given a day off at some future date. Ai Group
submits that the most common RDO arrangement involves employees working 19 x 8
ordinary hour working days and then having the 20th working day off as an RDO. For
example, an employee may work 8 ordinary hours, Monday to Friday, for three weeks, and 8
ordinary hours, Monday to Thursday, in the fourth week, with Friday deemed to be the RDO.
If the employee works on the Friday of the fourth week, this would be overtime in some, but
not all, circumstances, as follows:167
If the employee is not given an alternative RDO, the time worked on the fourth
Friday would be overtime;
If the employee is given an alternative RDO at some future date (consistent with
clause 25.5 in the current award), the time worked on the fourth Friday would not
be overtime. Often employees wish to bank RDOs or take an RDO on an alternative
date, by agreement with their employer
[371] Clause 19.2 requires the payment of the rates there described during overtime only.
Ai Group submits it is potentially a substantive change to clause 25 of the award (or elements
of clause 25) given that it is not expressly confined to the performance of overtime. 168
[372] Clause 19.2 appears to require a minimum payment of 3 hours on a Saturday at 150%
of the minimum hourly rate and another minimum 3 hour payment at 200% of the minimum
hourly rate. Ai Group submits that this is substantively different to clause 25.2 of the award,
which requires a three hour minimum payment in total on a Saturday. 169
166 Ai Group submission, 27 November at [97].
167 Ai Group submission, 27 November at [97].
168 Ai Group submission, 27 November at [97].
169 Ai Group submission, 27 November at [98].
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[373] Clause 25 of the current award states:
25 Overtime and penalty rates
The following rates, based on 1/38th of the weekly wage rate, must be paid for all work done:
25.1 Outside the times of beginning and ending work in any one day—150% for the first two
hours and 200% thereafter.
25.2 Within the times of beginning and ending work but in excess of eight hours in any one
day—150% for the first two hours and 200% thereafter for a day worker and 150% for the
first three hours and 200% thereafter for a shiftworker.
25.3 On Saturday—150% for the first two hours and 200% thereafter, with a minimum
payment as for three hours’ work.
25.4 On Sunday—200%, with a minimum payment as for three hours’ work.
25.5 On a rostered day off—250% or a day off instead at some future date.
25.6 On a public holiday—250%.
25.7 Time off instead of payment for overtime
(a) An employee and employer may agree in writing to the employee taking time
off instead of being paid for a particular amount of overtime that has been
worked by the employee.
(b) Any amount of overtime that has been worked by an employee in a particular
pay period and that is to be taken as time off instead of the employee being
paid for it must be the subject of a separate agreement under clause 25.7.
(c) An agreement must state each of the following:
(i) the number of overtime hours to which it applies and when those
hours were worked;
(ii) that the employer and employee agree that the employee may take
time off instead of being paid for the overtime;
(iii) that, if the employee requests at any time, the employer must pay the
employee, for overtime covered by the agreement but not taken as
time off, at the overtime rate applicable to the overtime when worked;
(iv) that any payment mentioned in subparagraph (iii) must be made in the
next pay period following the request.
Note: An example of the type of agreement required by this clause is set out at
Schedule H. There is no requirement to use the form of agreement set out at
Schedule H. An agreement under clause 25.7 can also be made by an exchange
of emails between the employee and employer, or by other electronic means.
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(d) The period of time off that an employee is entitled to take is the same as the number of
overtime hours worked.
EXAMPLE: By making an agreement under clause 25.7 an employee who worked 2
overtime hours is entitled to 2 hours’ time off.
(e) Time off must be taken:
(i) within the period of 6 months after the overtime is worked; and
(ii) at a time or times within that period of 6 months agreed by the
employee and employer.
(f) If the employee requests at any time, to be paid for overtime covered by an
agreement under clause 25.7 but not taken as time off, the employer must pay
the employee for the overtime, in the next pay period following the request, at
the overtime rate applicable to the overtime when worked.
(g) If time off for overtime that has been worked is not taken within the period of 6
months mentioned in paragraph (e), the employer must pay the employee for the
overtime, in the next pay period following those 6 months, at the overtime rate
applicable to the overtime when worked.
(h) The employer must keep a copy of any agreement under clause 25.7 as an
employee record.
(i) An employer must not exert undue influence or undue pressure on an employee
in relation to a decision by the employee to make, or not make, an agreement to
take time off instead of payment for overtime.
(j) An employee may, under section 65 of the Act, request to take time off, at a
time or times specified in the request or to be subsequently agreed by the
employer and the employee, instead of being paid for overtime worked by the
employee. If the employer agrees to the request then clause 25.7 will apply,
including the requirement for separate written agreements under paragraph (b)
for overtime that has been worked.
Note: If an employee makes a request under section 65 of the Act for a change
in working arrangements, the employer may only refuse that request on
reasonable business grounds (see section 65(5) of the Act).
(k) If, on the termination of the employee’s employment, time off for overtime
worked by the employee to which clause 25.7 applies has not been taken, the
employer must pay the employee for the overtime at the overtime rate
applicable to the overtime when worked.
Note: Under section 345(1) of the Act, a person must not knowingly or
recklessly make a false or misleading representation about the workplace rights
of another person under clause 25.7.
[374] In response to the issues outlined above, Ai Group proposes the following solutions:
‘(a) Amending the heading of clause 19 to read: “Overtime and Penalty Rates”.
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(b) Deleting clause 19.1(a).
(c) Relocating clause 19.1(b) to a new clause 10.5.
(d) Deleting the heading to clause 19.2.
(e) Replacing the preamble to the table with the following. Where an employee performs work
described in the table below, the employer must pay the employee the corresponding rate
prescribed: …
(f) Deleting all references to “overtime” in the table at clause 19.2.
(g) Amending the table in respect of Saturday rates as follows:
Saturday – first 2 hours
- first 2 hours
- after 2 hours
150
200
3 hours
Saturday – after 2 hours 200 3 hours’
[375] Ai Group suggests that if the changes above are made, the heading to clause 20 should
be varied to read “Shiftwork penalty rates”. 170
[376] In reply, ABI agrees that under the current award work performed on a public holiday
is not automatically considered overtime and in many cases would be ordinary hours. ABI
notes:
the heading of clause 25 in the current award is ‘Overtime and penalty rates’, yet
the rates in the clause are all defined as overtime in clause 19.1 of the exposure
draft; and
neither the award nor the exposure draft contain a definition of ‘rostered day off’.
Whether the work performed on such a day would be ordinary hours or overtime
would depend on how the employer has structured the ordinary hours of work.
[377] ABI submits that it may be appropriate to include a footnote in the tables at clauses
B.2 and B.4, drawing attention to the fact that clause 19.3 allows for a future day off in lieu of
payment at the 250% rate. As to clause 19.2 ABI agrees that the current drafting appears to
suggest that a minimum payment of three hours applies for the first two hours worked on a
Saturday, with a further minimum payment of three hours applying thereafter.
[378] ABI submits that clause 19.1 should be varied to address the issues raised – to clarify
what is considered part of an employee’s ordinary hours of work and what is overtime. ABI
submits that Ai Group’s proposed variations ‘do not provide any clarity in relation to this
[and] should not be adopted in their current form’.
[379] The AWU generally agrees with the issues identified by Ai Group but submits that the
issues raised can be resolved in a manner that is more consistent with the current award, by:
170 Ai Group submission, 27 November at [99].
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amending clause 19.1(a)(iii) to read: ‘on a Saturday, Sunday or an RDO (unless a
day off will be taken instead at a future date)’;
amend the Saturday overtime rate table in clause 19.2 in the manner proposed by Ai
Group (at [98](g)) to address the minimum engagement issue; and
amend clause 26.2 to read:
‘Where an employee works on a public holiday, they will be paid at 250% of
the minimum weekly rate.’
[380] The issues raised by Ai Group; Ai Group’s proposed solution and the AWU’s proposal
will be the subject of a conference in February 2020.
6.21 Poultry Processing Award
[381] Clause 26.1 of the current award states:
26.1 Payment for working overtime
Except as provided for in clauses 26.4 and 26.5, for all work done outside of ordinary hours,
the overtime rate is 150% for the first three hours and 200% thereafter.
[382] Ai Group submit, with respect to clause 19.1 and the definition of overtime, that the
clause potentially introduces the notion of an employee’s ordinary hours, or the hours that an
employee ordinarily works.171
[383] Clause 19.1 of the Exposure Draft defines overtime as
“…any work done outside of the employee’s ordinary hours provided by clause 13…”
[384] Ai Group submit that in accordance with clause 26.1 of the current award, overtime
rates are payable “for all work done outside ordinary hours”. As such, Ai Group propose that
clause 19.1 of the Exposure Draft be amended to better reflect the current award as follows
(noting the strikethrough):
Overtime is any work done outside of the employee’s ordinary hours as provided in
clause 13 – Ordinary hours of work.172
[385] ABI supports Ai Group’s submissions. No party opposed Ai Group’s proposal.
[386] We agree with Ai Group and will amend the draft variation determination accordingly.
6.22 Storage Services and Wholesale Award
[387] Ai Group submits that the weekly and hourly rates for ‘Wholesale employee level 4’
are incorrect and they instead reflect the ‘Storeworker grade 1 – on commencement’ rates.173
171 Ai Group submission, 27 November 2019 at [105].
172 Ai Group submission, 27 November 2019 at [106].
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[388] Ai group submit that the reference in clause 21.2 to clause 21 should be replaced with
“clauses 21 – 23”.174
[389] Ai Group notes that the definitions at clause 21.2 of the Exposure Draft appear at
clause 24.2 of the award and the definitions are expressed as applying to “this clause”, being
clause 24. 175
[390] Ai Group also notes that the defined terms are used throughout clause 24 but most
relevantly in clauses 24.5 and 24.6. Clauses 24.5 and 24.6 of the award have been redrafted at
clauses 22 and 23 of the Exposure Draft which are separate from clause 21. Consequently, the
reference made to “this clause” does not extend the definition of the relevant terms to clauses
22 and 23.176
[391] No party opposed Ai Group’s proposal.
[392] We agree with Ai Group and will amend the draft variation determination accordingly.
6.23 Vehicle Manufacturing, Repair, Services and Retail Award
[393] The following submissions have been made in relation to the Vehicle Manufacturing
Repair Services and Retail Award Exposure Draft and draft variation determination:
ABI 27 November 2019 at [54] – [55]
Ai Group 27 November 2019 at [140] – [161] and 9 December 2019 at [56]-[80]
Motor Trades Organisations 27 November 2019 and 9 December 2019
AMWU 27 November 2019
[394] The matters raised in the submissions were the subject of a conference before
Commissioner Bissett at 12:30pm on Wednesday 18 December 2019. All outstanding issues
were agreed at the conference, as set in Commissioner Bissett’s Report. We will amend the
draft variation determination to give effect to the agreement reached at the conference.
7. Conclusion
[395] As mentioned earlier, in the 14 October 2019 Decision we expressed the provisional
view that the variation of the 41 modern awards in Tranche 2 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:
Aboriginal Community Controlled Health Services Award
Airport Employees Award
Clerks – Private Sector Award
173 Ai Group submission, 27 November 2019 at [120].
174 Ai Group submission, 27 November 2019 at [123].
175 Ai Group submission, 27 November 2019 at [124].
176 Ai Group submission, 27 November 2019 at [124]-[125].
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Educational Services (Post-Secondary Education) Award
Higher Education Industry—Academic Staff—Award
Hydrocarbons Field Geologists Award
Mannequins and Models Award
Maritime Offshore Oil and Gas Award
Passenger Vehicle Transportation Award
Professional Diving Industry (Industrial) Award
Professional Diving Industry (Recreational) Award
Rail Industry Award
Restaurant Industry Award
Stevedoring Industry Award
[396] We confirm our provisional views and will issue the variation determinations in
respect of each of these awards in the terms published on 14 October 2019, subject to any
amendments necessary to give effect to our decision in respect of the general issues (see
Section 2 above) and the correction of any minor typographical errors or omissions (see [25]
above). These variation determinations will be published by no later than 14 February 2020
and will commence operation on 13 April 2020.
[397] In Sections 5 and 6 of this decision we dealt with more substantive award specific
issues in respect of 27 of the Tranche 2 modern awards.
[398] In Section 5 decisions have been made in respect of the disputed issues in the
Transport Group of Awards, that is:
Road Transport (Long Distance Operations) Award 2010
Road Transport and Distribution Award 2010
Transport (Cash in Transit) Award 2010
Waste Management Award 2010
[399] In Section 6 decisions have been made in respect of the disputed issues in the
following Tranche 2 awards:
Airline Operations – Ground Staff Award 2010
Air Pilots Award 2010
Alpine Resorts Award 2010
Architects Award 2010
Asphalt Industry Award 2010
Cleaning Services Award 2010
Commercial Sales Award 2010
Concrete Products Award 2010
Contract Call Centres Award 2010
Dry Cleaning and Laundry Industry Award 2010
Educational Services (School) General Staff Award 2010
Gas Industry Award 2010
Higher Education Industry – General Staff Award 2010
Hospitality Industry (General) Award 2010
Labour Market Assistance Industry Award
Local Government Award 2010
Manufacturing and Associated Industries and Occupations Award 2010
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Meat Industry Award 2010
Pastoral Award 2010
Pharmaceutical Industry Award 2010
Poultry Processing Award 2010
Storage Services and Wholesale Award 2010
Vehicle Manufacturing, Repair, Services and Retail Award 2010
[400] The variation determinations published on 14 October 2019 in respect of the
27 modern awards at [398] and [399] above will be amended to correct any of the errors
identified in [25] above; to remove any contested overtime for casuals and casual conversion
terms or Schedules (see [13] – [14] above); and to make the variations we have determined in
Sections 5 and 6 of this decision (the amended variation determinations). We confirm our
provisional view that the variation of the modern awards in [398] – [499], in accordance with
the amended variation determinations is, in respect of each of the awards, necessary to
achieve the modern awards objective.
[401] We note that some outstanding issues in relation to the variation of the Pastoral Award
2010 and the Pharmaceutical Industry Award 2010 are the subject of conferences in January
and February 2020.
[402] If any of the 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 14 February 2020) and when those variation determinations commence
operation (on 4 May 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
Appearances:
Mr B Ferguson and Ms R Bhatt of Australian Industry Group
Mr I MacDonald of the Australian Public Transport Industrial Association
Mr S Crawford of the Australian Workers’ Union
Mr R Kingston of Australian Business Industrial and the New South Wales Business Chamber
Mr P Boncardo with Ms T Walton of the Transport Workers’ Union
Mr R Calver of National Road Transport Association
Mr P Ryan of the Australian Road Transport Industrial Organisation
Mr R Kingston of Australian Business Industrial and the NSW Business Chamber
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Mr I MacDonald of the Australian Public Transport Industrial Association
Mr P Ryan of the Australian Hotels Association
Ms K Srdanovic – Qantas
Ms A Ambihaipahar - Communications, Electrical, Electronic, Energy, Information, Postal,
Plumbing and Allied Services Union of Australia
Ms A Devasia – Australian Manufacturing Workers’ Union
Mr K Barlow – the Community and Public Sector Union
Mr W Chesterman – Victoria Automobile Chamber of Commerce and the Motor Trades
Association of NSW, QLD and WA
Mr A Odgers – Independent Education Union
Mr C Morey with Mr M Sheehan – Motor Trades Association of SA
Ms V Wiles – Construction, Forestry, Maritime, Mining and Energy Union – Manufacturing
Division
Mr S Pill and Mr M Condello – Group of Eight Universities
Mr S Bull – United Workers’ Union
Ms E Gilmore and Ms F Nethercote – Association of Independent Schools
Ms C Pugsley – Australian Higher Education Industrial Association
M Corrigan with Mr D Wagner – Association of Consulting Architects
Ms D Hunter – Local Government Associations
Mr B Rogers – National Farmers’ Federation
Hearing details:
2019.
Sydney
17 and 18 December
Printed by authority of the Commonwealth Government Printer
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