1
Fair Work Act 2009
s.157 - FWC may vary etc. modern awards if necessary to achieve modern awards objective
Application to vary the Restaurant Industry Award 2010
(AM2020/11)
Restaurant industry
JUSTICE ROSS, PRESIDENT
DEPUTY PRESIDENT CLANCY
COMMISSIONER BISSETT
MELBOURNE, 31 MARCH 2020
Application by Restaurant and Catering Industrial to vary a modern award to achieve the
modern awards objective – Application supported by the United Workers’ Union, the
Australian Council of Trade Unions and the Minster for Industrial Relations – no submissions
opposing the application – application approved and variation determination made.
1. Background
[1] This decision concerns an application to vary the Restaurant Industry Award 2010
(MA000119) (the Restaurant Award) filed by the Restaurant and Catering Industrial (RCI),
with the support of the United Workers Union (UWU) and the Australian Council of Trade
Unions (ACTU) on 30 March 2020 (the Application). A revised draft determination, in
substantially the same terms, was filed on 31 March 2020 and posted on the Commission’s
website.
[2] RCI, the UWU and the ACTU have been in discussions to reach a consent position on
changes to the Restaurant Award that can mitigate against the current impacts COVID-19 on
employees and employers covered by the award. The Application is the product of that
dialogue and is moved by consent of the parties.
[3] At the request of the parties, the hearing of this matter was expedited.
[4] On 30 March 2020, we issued a statement (the 30 March Statement)1 setting out the
background to the application and expressed a number of provisional views including that:
1 [2020] FWCFB 1715
[2020] FWCFB 1741
DECISION
E AUSTRALIA FairWork Commission
https://www.fwc.gov.au/documents/decisionssigned/html/2020fwcfb1715.htm
https://www.fwc.gov.au/documents/documents/awardmod/variations/2020/am202011-draft%20determination-clean-310320.pdf
[2020] FWCFB 1741
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‘[21] … It is our provisional view that the term proposed [clause I.2.3(a)] is a
permitted term proposed and that it is ‘reasonable’ within the meaning of s.93(3). We
take the same view in relation to the term dealing with reduced notice of Close-down
…
[23] It is our provisional view this clause [clause I.2.3(c)] is an ancillary or
incidental term permitted by s.55(4).
[24] It is our provisional view, taking into account the relevant s.134
considerations, that the variation of the Restaurant Award as proposed in the
Application is necessary to achieve the modern awards objective.’2
[5] In the 30 March Statement, we invited any interested party to file a written submission
supporting or opposing the Application and the provisional views set out in the 30 March
Statement by 4pm on Tuesday 31 March 2020.
[6] The following submissions were received from:
the RCI and UWU on 31 March 2020; and
the Honourable Christian Porter MP, Minister for Industrial Relations (the Minister)
on 31 March 2020.
[7] In the 30 March Statement we said that if no submissions were filed opposing the
Application and our provisional views we would grant the application and vary the award
accordingly.3 No such submissions were received. Accordingly, for the reasons which follow,
we grant the application and will vary the award.
[8] By way of background, on 24 March 2020, we granted an application to vary the
Hospitality Industry (General) Award 2010 (the Hospitality Award). Our reasons for that
decision were published on 25 March 20204 (the Hospitality decision). On 28 March 2020, we
granted an application to vary the Clerks – Private Sector Award 2010 (the Clerks Award).
Our reasons for that decision5 were published on the same day.
[9] In the Hospitality Decision we observed that the notice provided to parties of the
hearing of that application was much shorter than the Commission’s standard practice. We
make the same observation in respect of the present matter. At [9] – [11] of the Hospitality
Decision we set out the Commission’s obligations to afford procedural fairness and noted the
content of the doctrine of procedural fairness is determined by the context, we concluded as
follows:
‘[11] Relevantly, s.577(a) and (b) provide that the Commission must perform its functions and
exercise its powers in a manner that:
2 Ibid, at [21], [23]-[24]
3 Ibid, at [26]
4 [2020] FWCFB 1574
5 [2020] FWCFB 1690
https://www.fwc.gov.au/documents/decisionssigned/html/2020fwcfb1690.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2020fwcfb1574.htm
https://www.fwc.gov.au/documents/documents/awardmod/variations/2020/am202011-sub-cmir-310320.pdf
https://www.fwc.gov.au/documents/awardmod/variations/2020/am202011-sub-rci-uwu-310320.pdf
[2020] FWCFB 1741
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‘(a) Is fair and just; and
(b) Is quick, informal, and avoids unnecessary technicalities;’.
[12] The key contextual considerations in the matter before us are:
the statutory framework;
the consent of the key interested parties;
the parties’ joint request for expedition; and
the need to respond quickly to a rapidly changing industrial environment.
[13] In this instance, the consent of the key industrial parties’ is the central
consideration.
[14] In the event that this application had been contested then, plainly, different
considerations would have been enlivened, necessitating a more protracted hearing
process than the one we have adopted in this matter.’
[10] Similar circumstances arise in the present matter. The Application was made with the
consent of the key industrial parties. As we have mentioned, a statement in relation to the
Application was published on the Commission’s website and sent to all subscribers on 30
March 2020. Any interested party was provided with an opportunity to respond to the
Application. In these circumstances we are satisfied that we have met our obligation to afford
procedural fairness to those affected by the Application.
2. COVID-19 Pandemic
[11] The application arises from the unique set of circumstances pertaining to the COVID-
19 pandemic.
[12] The Commission has published an information note on the Government responses to
the COVID-19 pandemic on its website. The information note outlines the measures taken by
both federal and state governments to put restrictions on social gatherings and non-essential
businesses, as well as the assistance provided to support businesses and households.
Impact on the Restaurant industry
[13] The Application notes (at [54] – [59] of Annexure B) the following impacts of the
COVID-19 pandemic upon the Restaurant industry:
‘The restaurant and catering industry is currently materially impacted by CoV.
Restaurants, cafes and food court outlets can no longer trade, save for the provision of
takeaway and/or delivery services.
https://www.fwc.gov.au/documents/documents/awardmod/var010110/am20208-information-note-gvt-response-250320.pdf
https://www.fwc.gov.au/documents/documents/awardmod/var010110/am20208-information-note-gvt-response-250320.pdf
[2020] FWCFB 1741
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Those still attending work are adopting new work patterns to reduce the level of exposure to
colleagues and clients.
This includes rostering a limited number of employees into work at any one time and spacing
employees out in the relevant worksite.
Some workplaces are closing to enable them to transition their business from a traditional
restaurant model to a take away delivery business. These closures will necessitate placing
employees on leave for a period, whilst the business explores transition to a new business
model.
The businesses have no choice in this matter, given the directives issued by the Federal
Government and supported by State Government public health orders.’6
3. The Application
[14] The Application seeks to add a new schedule; Schedule I—Award Flexibility during
the COVID-19 Pandemic, to the Restaurant Award. It is proposed that the new schedule
operate until 30 June 2020. Schedule I proposes flexibilities in the relation to:
(a) the range of duties an employee can be required to perform, with this scope
being limited by safety considerations and an employee’s skill and
competency, license or qualification (see I.2.1);
(b) the hours of work required to be provided to full-time and part-time
employees. Any such variation is subject to certain safeguards including a
requirement to consult and an obligation to accrue, calculate and pay leave
entitlements on the basis of the employee’s hours of work that prevailed prior
to variation (see I.2.2);
(c) flexibility in relation to the taking of leave with:
(i) employers being afforded the flexibility to direct the taking of annual
leave on 24 hours’ notice; and
(ii) employees being afforded the flexibility to take accrued leave at ‘half-
pay’ (this will double an employee’s leave entitlement); (see I.2.3); and
(d) close down provisions of the Award, increasing the ability for an employer to
require an employee to take annual or unpaid leave during a period of close-
down (see I.2.5).
[15] The provisions contained in the Draft Determination at Annexure A to the Application
mirror the provisions which we have already made in the Hospitality Award and the Clerks
Award. Specifically:
6 Joint Application, 30 March 2020, at Annexure B at [54]-[59]
https://www.fwc.gov.au/documents/documents/awardmod/variations/2020/am202011-application-rci-300320.pdf
[2020] FWCFB 1741
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(a) Clause I.2.1 mirrors clause L.2.1 which was inserted into the Hospitality
Industry (General) Award 2010.
(b) Clause I.2.2 mirrors clause L.2.2 which was inserted into the Hospitality
Industry (General) Award 2010.
(c) Clause I.2.3 mirrors clause L.2.3 which was inserted into the Hospitality
Industry (General) Award 2010.
(d) Clause I.2.4 mirrors clause I.2.7 which was inserted into the Clerks - Private
Sector Award 2010.
(e) Clause I.2.5 mirrors clause L.2.4 which was inserted into the Hospitality
Industry (General) Award 2010.
[16] RCI and the UWU filed a joint submission in support of the Application in which they
characterised the changes proposed as follows:
‘In broad terms, the Application provides employers in the Restaurant Industry with a
measured level of flexibility during a period of unprecedented crisis. This may facilitate
employers being able to offer workers paid work in circumstances where, if the Award was
not varied, they would be unable to do so. At the same time, the Application seeks to preserve
the fundamental basics of restaurant industry wage structures under the Award. The parties
submit that it is a measured and appropriate modification to deal with an extraordinary
situation facing the Restaurant Industry.’
[17] RCI and the UWU jointly submit that four aspects of the Application warrant
emphasis.
(i) The application is made by consent
[18] Both RCI and UWU advance the Application by consent and agree that the variations
sought are permissible pursuant to s 139 of the Act and necessary pursuant to s 157 to meet
the requirements of s 134. The Application is also supported by the ACTU.
(ii) The variation is temporary
[19] The proposed variations are intended to be short-term variations, justified only by the
unique and unprecedented nature of the current crisis facing the Restaurant Industry.
Accordingly, prima facie, the variations are only intended to operate until 30 June 2020. The
parties’ contemplate that the proposed variations may be extended on application.
[20] Discussions between the parties envisage that any extension of the proposed
arrangements beyond 30 June 2020 would:
(a) only be for a further temporary period;
[2020] FWCFB 1741
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(b) only be justified where adverse conditions relating to the COVID-19 pandemic
continued; and
(c) proceed with the consent of the parties.
[21] All parties reserve their rights to agree or oppose any future attempt to extend the
variations sought by the Application beyond 30 June 2020.
(iii) Requirement to consult
[22] The Application envisages that where flexible work arrangements sought by the
Application are pursued, consultation with affected employees must occur and, where
appropriate, this must also occur with the UWU.
(iv) Employees should not be disadvantaged in respect of leave entitlements
[23] The intention of the parties is to ensure that employees whose hours are varied under
new arrangements are not disadvantaged with respect to the accumulation or payment of their
leave entitlements. The Application envisages that following the cessation of the temporary
variation to the Award, employees will be in the same position in respect of leave accrual and
payment as they would have been if the variation had not been made. This means:
(a) leave entitlements will continue to accrue based on an employee’s ordinary
hours of work which existed prior to the variation;
(b) where leave occurs during the period in which a variation is in place, it will be
paid based on the employee’s ordinary hours of work which existed prior to
the variation; and
(c) entitlements based on period of service, if they arise during the period, will be
calculated based on an employee’s ordinary hours of work which existed prior
to the variation.
[24] The Minister filed a submission in support of the Application, in the following terms:
‘As with previous applications, the Minister strongly supports the granting of the application,
and notes the similarity between the agreed amendments and those previously granted by the
Full Bench in relation to other Awards.
In these circumstances, the Minister does not intend to make a formal submission at this stage,
other than to again congratulate RCI, and the UWU and the ACTU, on their preparedness to
respond collaboratively to find practical solutions to reduce the hardship suffered by
employers and employees created by this extraordinary crisis. In addition, the Minister would
like to again thank the Fair Work Commission and, in particular, the Full Bench as constituted
for its similar preparedness to respond in a practical, flexible and timely way to this situation.
[2020] FWCFB 1741
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If a submission opposing the application is received, and a hearing is required, the Minister
will immediately provide a comprehensive written submission in support of the Application.’7
4. Consideration
[25] The Commission may make a determination varying a modern award if the
Commission is satisfied the determination is necessary to achieve the modern awards
objective. The modern awards objective is in s.134 of the Fair Work Act 2009 (Cth) (the Act)
and provides as follows:
‘What is the modern awards objective?
134(1) The FWC must ensure that modern awards, together with the National Employment
Standards, provide a fair and relevant minimum safety net of terms and conditions, taking into
account:
(a) relative living standards and the needs of the low paid; and
(b) the need to encourage collective bargaining; and
(c) the need to promote social inclusion through increased workforce participation;
and
(d) the need to promote flexible modern work practices and the efficient and
productive performance of work; and
(da) the need to provide additional remuneration for:
(i) employees working overtime; or
(ii) employees working unsocial, irregular or unpredictable hours; or
(iii) employees working on weekends or public holidays; or
(iv) employees working shifts; and
(e) the principle of equal remuneration for work of equal or comparable value; and
(f) the likely impact of any exercise of modern award powers on business, including
on productivity, employment costs and the regulatory burden; and
(g) the need to ensure a simple, easy to understand, stable and sustainable modern
award system for Australia that avoids unnecessary overlap of modern awards; and
(h) the likely impact of any exercise of modern award powers on employment growth,
inflation and the sustainability, performance and competitiveness of the national
economy.’
This is the modern awards objective.
7 Minister’s submission, 31 March 2020
https://www.fwc.gov.au/documents/awardmod/variations/2020/am202011-sub-cmir-310320.pdf
[2020] FWCFB 1741
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When does the modern awards objective apply?
(2) The modern awards objective applies to the performance or exercise of the
FWC’s modern award powers, which are:
(a) the FWC’s functions or powers under this Part; and
(b) the FWC’s functions or powers under Part 2-6, so far as they relate to
modern award minimum wages.
Note: The FWC must also take into account the objects of this Act and any other applicable
provisions. For example, if the FWC is setting, varying or revoking modern award minimum
wages, the minimum wages objective also applies (see section 284).’
[26] The modern awards objective is to ‘ensure that modern awards, together with the
National Employment Standards, provide a fair and relevant minimum safety net of terms and
conditions’, taking into account the particular considerations identified in ss.134(1)(a)–(h)
(the s.134 considerations).
[27] The modern awards objective is very broadly expressed.8 It is a composite expression
which requires that modern awards, together with the National Employment Standards (NES),
provide ‘a fair and relevant minimum safety net of terms and conditions’, taking into account
the matters in ss.134(1)(a)–(h).9 Fairness in this context is to be assessed from the perspective
of the employees and employers covered by the modern award in question.10
[28] The obligation to take into account the s.134 considerations means that each of these
matters, insofar as they are relevant, must be treated as a matter of significance in the
decision-making process.11 No particular primacy is attached to any of the s.134
considerations12 and not all of the matters identified will necessarily be relevant in the context
of a particular proposal to vary a modern award.
[29] It is not necessary to make a finding that the award fails to satisfy one or more of the
s.134 considerations as a prerequisite to the variation of a modern award.13 Generally
speaking, the s.134 considerations do not set a particular standard against which a modern
award can be evaluated; many of them may be characterised as broad social objectives.14 In
giving effect to the modern awards objective the Commission is performing an evaluative
8 Shop, Distributive and Allied Employees Association v National Retail Association (No 2) (2012) 205 FCR 227 at [35]
9 (2017) 265 IR 1 at [128]; Shop, Distributive and Allied Employees Association v The Australian Industry Group [2017]
FCAFC 161 at [41]–[44]
10 [2018] FWCFB 3500 at [21]-[24]
11 Edwards v Giudice (1999) 94 FCR 561 at [5]; Australian Competition and Consumer Commission v Leelee Pty Ltd [1999]
FCA 1121 at [81]-[84]; National Retail Association v Fair Work Commission (2014) 225 FCR 154 at [56]
12 Shop, Distributive and Allied Employees Association v The Australian Industry Group [2017] FCAFC 161 at [33]
13 National Retail Association v Fair Work Commission (2014) 225 FCR 154 at [105]-[106]
14 See National Retail Association v Fair Work Commission (2014) 225 FCR 154 at [109]-[110]; albeit the Court was
considering a different statutory context, this observation is applicable to the Commission’s task in the Review
http://www.fwc.gov.au/decisionssigned/html/2018fwcfb3500.htm
[2020] FWCFB 1741
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function taking into account the matters in s.134(1)(a)–(h) and assessing the qualities of the
safety net by reference to the statutory criteria of fairness and relevance.
[30] Section 138 of the Act emphasises the importance of the modern awards objective:
‘Section 138 Achieving the modern awards objective
A modern award may include terms that it is permitted to include, and must include
terms that it is required to include, only to the extent necessary to achieve the modern
awards objective and (to the extent applicable) the minimum wages objective.’
[31] What is ‘necessary’ to achieve the modern awards objective in a particular case is a
value judgment, taking into account the s.134 considerations to the extent that they are
relevant having regard to the context, including the circumstances pertaining to the particular
modern award, the terms of any proposed variation and the submissions and evidence.15
[32] We now turn to the modern awards objective.
[33] We have set out [14] above the changes proposed by the Application. We note that
proposed Schedule I is about matters that may be included in a modern award pursuant to
ss.136(1)(a) and (c), and ss.139(1)(a), (c) and (h) of the Act.
[34] It was common ground that the consideration in s 134(b), (da), (e) and (g) were not
relevant. We deal with the other considerations below.
s. 134(1)(a): relative living standards and the needs of the low paid
[35] A threshold of two-thirds of median full-time wages provides ‘a suitable and
operational benchmark for identifying who is low paid,’16 within the meaning of s.134(1)(a).
[36] The most recent data for median earnings is for August 2019 from the ABS
Characteristics of Employment (CoE) survey. Data on median earnings are also available
from the Survey of Employee Earnings and Hours (EEH) for May 2018. On the basis of the
data from the CoE survey for August 2019, two-thirds of median weekly earnings for full-
time employees is $920.00. Data on median weekly full-time earnings are also available from
the EEH survey for May 2018, and two-thirds of median earnings is equal to $973.33.
[37] Using the two-thirds of median full-time wages as the benchmark, employees paid at
classification levels 1 to 5 in the Restaurant Award are ‘low paid’ within the meaning of
s.134(1)(a).
[38] RCI and the UWU submit that:
15 See generally: Shop, Distributive and Allied Employees Association v National Retail Association (No.2) (2012) 205 FCR
227
16 [2017] FWCFB 1001 at [166]
http://www.fwc.gov.au/decisionssigned/html/2017fwcfb1001.htm
[2020] FWCFB 1741
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‘The variations proposed by the Application will facilitate the maintenance of income-
generating work in circumstances where, in the absence of the variations, such work would be
unlikely.’17
[39] We accept that the proposed variation may result in low paid employees working less
hours and consequently receiving less pay. It is axiomatic that such a reduction in pay will
mean that they are less able to meet their needs. But, as noted in the Hospitality decision,
employers and employees face an invidious choice and the retention of as many employees as
possible in employment, albeit on reduced hours, is plainly a priority.
[40] We also note the agreed measures to mitigate the impact of reduced hours, particularly
by maintaining relevant accruals and the requirement for consultation with affected
employees and, where appropriate, with the UWU.
s. 134(1)(c) the need to promote social inclusion through increased workforce
participation
[41] This consideration is directed at obtaining employment. RCI and the UWU submit that
‘the variations will facilitate the parties shared objective of retaining as many employees in
employment as practicable in the current crisis.’
s. 134(1)(d) and (f) the need to promote flexible modern work practices and the
efficient and productive performance of work and the likely impact of any exercise of
modern award powers on business, including on productivity, employment costs and
the regulatory burden.
[42] It is convenient to deal with these considerations together. The proposed variation will
promote flexibility and the ‘efficient and productive performance of work’ and will reduce the
regulatory burden on business. This is a factor which weighs in favour of making the variation
sought.
s.134(1)(h) the likely impact of any exercise of modern award powers on employment
growth, inflation and the sustainability, performance and competitiveness of the
national economy.
[43] RCI and the UWU submit that ‘given the restaurant industry is a significant
component of the national economy, the variations sought … will have a positive impact on
the sustainability, performance and competitiveness of the national economy.’
[44] We accept the submission put. This is a factor that weighs in favour of making the
variation sought.
[45] Additional considerations apply to the proposed annual leave and close down
flexibilities.
[46] Subsections 93(3) and (4) of the Act are relevant in this regard and provide as follows:
17 RCI and UWU joint submission, 31 March 2020, at [20]
https://www.fwc.gov.au/documents/awardmod/variations/2020/am202011-sub-rci-uwu-310320.pdf
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‘Terms about requirements to take paid annual leave
(3) A modern award or enterprise agreement may include terms requiring an employee, or
allowing for an employee to be required, to take paid annual leave in particular circumstances,
but only if the requirement is reasonable.
Terms about taking paid annual leave
(4) A modern award or enterprise agreement may include terms otherwise dealing with
the taking of paid annual leave.’ (emphasis added)
[47] Section 93 is part of the NES. Modern awards and the NES interact in different ways:
A modern award may include any terms that the award is expressly permitted to
include by a provision of Part 2-2 (which deals with the NES) (ss.55(2) and
136(1)(c)).18
A modern award may include terms that:
(i) are ancillary or incidental to the operation of an entitlement of an
employee under the NES; or
(ii) terms that supplement the NES (s.55(4)).
[48] Subject to the requirement to take leave being reasonable, a modern award term which
provides that an employee can be required to take a period of annual leave is a term of the
type contemplated by s.93(3) of the Act.
[49] The issue before us is whether these provisions are ‘reasonable’ within the meaning of
s 93(3).
[50] We note that the terms in question are of limited duration to address an extraordinary
set of circumstances. A direction to take annual leave requires the giving of at least 24 hours’
notice and in issuing such a direction to take annual leave the employer is required to consider
an employees’ personal circumstances.
[51] Similarly, the proposed close down term modifies existing clause 35.3 by reducing the
notice required to ‘at least 1 weeks’ notice.’
[52] We are satisfied that the terms proposed are permitted terms and are ‘reasonable’
within the meaning of s.93(3).
[53] In relation to proposed clause I.2.3(c) – the ability to take twice as much annual leave
at a proportionally reduced rate by agreement – the statutory notes to s.55(4) provides a
relevant example. Note 1 states:
18 Section 127 provides that the Regulations may permit modern awards to include terms that would or might otherwise be
contrary to Part 2-2 or s.55, or prohibit modern awards from including terms that would or might otherwise be permitted
by Part 2-2 or s.55. No such regulations have been made
[2020] FWCFB 1741
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“Ancillary or incidental terms permitted by paragraph (a) include (for example) terms:
(a) under which, instead of taking paid annual leave at the rate of pay required by
section 90, an employee may take twice as much leave at half that rate of pay.
[54] We are satisfied that proposed clause I.2.3(c) is an ancillary or incidental term
permitted by s.55(4).
5. Conclusion
[55] As we have noted the terms in Schedule I may be included in a modern award
pursuant to ss.136(1)(a) and (c), and ss.139(1)(a), (c), (h) and (j) and s.142(1) of the Act.
[56] We are satisfied that the variation proposed is necessary to achieve the modern awards
objective (s.157) and in so deciding we have taken into account the considerations in
s.134(1)(a) to (h) insofar as they are relevant. Further, once varied the Restaurant Award will
only include terms to the extent necessary to achieve the modern awards objective (s.138).
[57] For the reasons set out above we will make the variation determination sought. The
determination will come into operation on 31 March 2020. As required by s.165(3) the
determination does not take effect in relation to a particular employee until the start of the
employee’s first full pay period that starts on or after the day the determination comes into
operation.
[58] A copy of the variation determination is at Attachment A.
PRESIDENT
Printed by authority of the Commonwealth Government Printer
PR717977
Final written submissions:
Restaurant and Catering Industrial and United Workers’ Union Joint Submission, 31 March
2020
Minister for Industrial Relations Submission, 31 March 2020
13
ATTACHMENT A
Fair Work Act 2009
s.157—FWC may vary etc. modern awards if necessary to achieve modern awards objective
Restaurant & Catering Industry Association of Australia T/A Restaurant &
Catering Australia
(AM2020/11)
RESTAURANT INDUSTRY AWARD 2010
[MA000119]
Restaurant industry
JUSTICE ROSS, PRESIDENT
DEPUTY PRESIDENT CLANCY
COMMISSIONER BISSETT MELBOURNE, 31 MARCH 2020
Application to vary the Restaurant Industry Award 2010.
A. Further to decision [[2020] FWCFB 1741] issued by the Full Bench on 31 March
2020, the above award is varied as follows:
1. By inserting Schedule I as follows:
Schedule I—Award Flexibility During the COVID-19 Pandemic
I.1 Schedule I operates from 31 March 2020 until 30 June 2020. The period of operation
can be extended on application.
I.2 During the operation of Schedule I, the following provisions apply:
I.2.1 Classifications and duties
MA000119 PR717978
DETERMINATION
https://www.fwc.gov.au/documents/decisionssigned/html/2020fwcfb1741.htm
[2020] FWCFB 1741
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(a) As directed by their employer, where necessary employees will perform any
duties that are within their skill and competency regardless of their
classification under clause 19—Classifications and Schedule B—Classification
Structure and Definitions, provided that the duties are safe and the employee is
licensed and qualified to perform them.
(b) Clause 29—Higher duties will apply to employees engaged on duties carrying
a higher rate than their ordinary classification.
I.2.2 Hours of work—full-time and part-time employees
(a) Subject to clause I.2.2(c), and despite clause 11—Full-time employment and
requirements for notice in clause 31.6 (Roster), an employer may direct a full-
time employee to work an average of between 22.8 and 38 ordinary hours per
week. The employee will be paid on a pro-rata basis. The arrangements for
working ordinary hours in clause 31—Hours of work will apply on a pro-rata
basis.
(b) Subject to clause I.2.2(c), and despite clause 12.3(a) (Part-time employment),
and the requirements for notice in clause 31.6 (Roster), an employer may direct
a part-time employee to work an average of between 60% and 100% of their
guaranteed hours per week, or an average of between 60% and 100% of the
guaranteed hours per week over the roster cycle.
(c) Prior to any employer issuing any direction under clause I.2.2(a) or (b) an
employer must:
(i) consult with the affected employee/s in accordance with clause 8A—
Consultation about changes to rosters or hours of work and provide as
much notice as practicable; and
(ii) if the affected employee/s are members of the United Workers Union,
notify the United Workers Union of its intention to implement these
arrangements.
(d) An employee given a direction under clause I.2.2(a) or (b) will continue to
accrue annual leave and personal leave, and any other applicable accruals
under this award, based on each full-time or part-time employee’s ordinary
hours of work prior to the commencement of Schedule I.
(e) If an employee given a direction under clause I.2.2(a) or (b) takes a period of
paid annual leave or personal leave, the payment for that leave will be based on
the full-time or part-time employee’s ordinary hours of work prior to the
commencement of Schedule I.
I.2.3 Annual leave
[2020] FWCFB 1741
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(a) Despite clauses 35.4, 35.5 and 35.6 (Annual leave), an employer may, subject
to considering an employee’s personal circumstances, direct the employee to
take annual leave with 24 hours’ notice.
(b) Clause I.2.3(a) does not prevent an employer and an employee agreeing to the
employee taking annual leave at any time.
(c) During the period of operation of Schedule I, instead of taking paid annual
leave at the rate of pay required by s.90 of the Fair Work Act 2009 (Cth), an
employer and an employee may agree to the employee taking twice as much
annual leave at half the rate of pay for all or part of any period of annual leave.
I.2.4 Close-down
(a) Instead of clause 35.3 (Annual leave), and subject to clause I.2.4(b), an
employer may:
(i) require an employee to take annual leave as part of a close-down of its
operations, or part of its operations, by giving at least one week’s notice,
or any shorter period of notice that may be agreed; and
(ii) where an employee has not accrued sufficient leave to cover part or all of
the close-down, the employee is to be allowed paid annual leave for the
period for which they have accrued sufficient leave and given unpaid
leave for the remainder of the close-down.
(b) Clause I.2.4(a) does not permit an employer to require an employee to take
leave for a period beyond the period of operation of Schedule I.
(c) Where an employee is placed on unpaid leave pursuant to clause I.2.4(a), the
period of unpaid leave will count as service for the purposes of relevant award
and NES entitlements.
I.2.5 Dispute resolution
Any dispute regarding the operation of Schedule I may be referred to the Fair Work
Commission in accordance with Clause 9—Dispute Resolution.
2. By updating the table of contents and cross-references accordingly.
B. This determination comes into effect on 31 March 2020. In accordance with s.165(3)
of the Fair Work Act 2009 this determination does not take effect until the start of the first full
pay period that starts on or after 31 March 2020.
PRESIDENT
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