1
Fair Work Act 2009
s.157—Variation of a modern award to achieve the modern awards objective
Application by the Restaurant and Catering Industrial
(AM2020/11)
Restaurant industry
JUSTICE ROSS, PRESIDENT
DEPUTY PRESIDENT CLANCY
COMMISSIONER BISSETT MELBOURNE, 30 MARCH 2020
Application to vary the Restaurant Industry Award 2010 to achieve the modern awards
objective – provisional views.
1. Background
[1] This statement 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 Restaurant Application).
[2] RCI, the UWU and the ACTU have been in dialogue to reach a consent position on
changes to the Restaurant Award that can mitigate against the current impacts COVID-19 is
having on employees and employers covered by the Restaurant Award. The Restaurant
Application is the product of that dialogue and is moved by consent of the parties.
[3] At the request of the parties, the Commission’s consideration of the application will be
expedited. Any party wishing to respond to the Restaurant Application and the provisional
views set out in this statement is to file a submission by 4pm on Tuesday, 31 March 2020.
Instructions for the filing these submissions are in ‘Next steps’ below.
[4] The application will be provisionally listed for hearing at 10am on Wednesday, 1
April 2020 by telephone.
[2020] FWCFB 1715
STATEMENT
E AUSTRALIA FairWork Commission
[2020] FWCFB 1715
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[5] The hearing will only take place in the event that there are any submissions filed by
4pm Tuesday, 31 March 2020 opposing the provisional views in this statement. Further
details of the process for this hearing are set out under ‘Next steps’ below.
2. COVID-19 Pandemic
[6] The application arises from the unique set of circumstances pertaining to the COVID-
19 pandemic. The Commission has published an Information Note about measures taken in
response to the COVID-19 pandemic, which can be accessed here.
[7] 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 20201 (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
decision were published on the same day.
[8] The Restaurant 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.
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.’2
3. The Application
[9] The Restaurant 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:
1 [2020] FWCFB 1574
2 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
https://www.fwc.gov.au/documents/awardsandorders/html/pr598110.htm
https://www.fwc.gov.au/documents/documents/awardmod/var010110/am20208-information-note-gvt-response-240320.pdf
[2020] FWCFB 1715
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the range of duties employees can be required to perform;
the reduction of ordinary hours of work for full time and part time employees;
employees being directed to take accrued annual leave with 24 hours’ notice, subject
to considering an employees’ personal circumstances;
employees, by agreement, taking up to twice the amount of the accrued annual leave
at half pay; and
a reduction in the notice period for a close-down.
[10] The provisions contained in the Draft Determination at Annexure A to the Restaurant
Application mirrors the provisions which we have already made in the Hospitality award and
the Clerks award. Specifically:
(a) Clause I.2.1 mirrors clause L.2.2 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 L.2.4 which was inserted into the Hospitality
Industry (General) Award 2010.
(e) Clause I.2.5 mirrors clause I.2.7 which was inserted into the Clerks - Private
Sector Award 2010.
[11] The draft award variation determination in the Restaurant Application is attached.
4. Provisional views
[12] The Commission may make a determination varying a modern award if the
Commission is satisfied that the determination is necessary to achieve the modern award
objective. 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).
[13] 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
[2020] FWCFB 1715
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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.3
[14] The Restaurant Application addressees the modern awards objective in the following
way:
‘In terms of the matters the Commission has regard to in setting the safety net the following is
now relevant:
(a) “relative living standards and the needs of the low paid”; this must now be
seen in the context of seeking to maintain employment rather than losing
employment even if this means some employees choose temporarily to
maintain employment while accepting reduced employment benefits and take-
home pay.
(b) “the need to promote social inclusion through increased workforce
participation”; this must be seen in the context of seeking to maintain
employment rather than losing employment.
(c) “the likely impact of any exercise of modern award powers on business,
including on productivity, employment costs and the regulatory burden”; this
must been seen in the context of allowing business to survive the Pandemic
and the Measures so that they can operate to sustain what employment they
can and be in an effective position to recover and maintain and then grow
employment once the Pandemic passes.
(d) “the likely impact of any exercise of modern award powers on employment
growth, inflation and the sustainability, performance and competitiveness of
the national economy”; again this must been seen in the context of allowing
business to survive the Pandemic and the Measures so that they can operate to
sustain what employment they can and be in an effective position to recover
and maintain and then grow employment once the Pandemic passes.’4
[15] We have set out at [9] above what is proposed through the Restaurant 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.
[16] Additional considerations apply to the annual leave flexibilities and reduced close
down notice in proposed clauses I.2.3 and I.2.5.
[17] Subsections 93(3) and (4) of the Act are relevant in this regard and provide as follows:
“Terms about requirements to take paid annual leave
3 See generally: Shop, Distributive and Allied Employees Association v National Retail Association (No.2) (2012) 205 FCR
227
4 Joint Application, 30 March 2020, at Annexure B at [80]
https://www.fwc.gov.au/documents/documents/awardmod/variations/2020/am202011-application-rci-300320.pdf
[2020] FWCFB 1715
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(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)
[18] 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)).5
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)).
[19] 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.
[20] The issue before us is whether these provisions are ‘reasonable’ within the meaning of
s 93(3).
[21] We note that the terms in clause I.2.3(a) are of limited duration to address an
extraordinary set of circumstances. Further, a direction to take annual leave requires the
giving of at least 24 hours’ notice and such a direction may only be made after the employer
has considered the employee’s personal circumstances. It is our provisional view that the term
proposed is a permitted term 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.
[22] In relation to clause 1.2.3(c) – twice the amount of annual leave at half pay - we note
that, the statutory notes to s.55(4) provides a relevant example. Note 1 states:
‘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.’
5 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 1715
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[23] It is our provisional view this clause 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 Restaurant Application is necessary
to achieve the modern awards objective.
5. Next steps
Submissions
[25] Any submission supporting or opposing the Restaurant Application and our
provisional views set out above must be filed by 4pm on Tuesday 31 March 2020.
Submissions should be:
sent to chambers.ross.j@fwc.gov.au and include the matter number (AM2020/11) in
the subject line.
filed in Word format.
[26] If no submissions are filed opposing the Restaurant Application and our provisional
views we will grant the application and vary the Restaurant Award accordingly.
Provisional hearing
[27] If any submissions are filed opposing the Restaurant Application and our provisional
views, then a hearing will take place at 10am on Wednesday 1 April 2020, by telephone.
[28] Any party who wishes to attend the hearing in relation to this matter should send an
email to Chambers.Ross.j@fwc.gov.au specifying a name and contact telephone number by
4pm on Tuesday, 31 March 2020.
[29] In the event that no submissions are filed opposing our provisional view then the
hearing proposed for the morning of Wednesday, 1 April 2020 will not be necessary and will
be vacated.
PRESIDENT
Printed by authority of the Commonwealth Government Printer
PR717945
mailto:Chambers.Ross.j@fwc.gov.au
mailto:chambers.ross.j@fwc.gov.au
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Fair Work Act 2009
s.157 – Application to vary a modern award to achieve the modern awards objective
Restaurant Industry Award 2010
(AM2020/11)
JUSTICE ROSS, PRESIDENT
DEPUTY PRESIDENT CLANCY
COMMISSIONER BISSETT
Application to vary the Restaurant Industry Award 2010.
Further to decision [[2020] FWCFB XXXX] issued by the Full Bench on XX March 2020,
the above award is varied as follows:
1. In the Table of Contents add a new Schedule I
2. Add the following Schedule I to the award:
Schedule I—Award Flexibility During the COVID-19 Pandemic
I.1 Schedule I operates from [_____] 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
(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, 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.
DRAFT DETERMINATION
AUSTRALIA FairWork Commission
[2020] FWCFB 1715
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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
(a) Despite clauses 35.4, 35.5 and 35.6 (Annual leave), an employer may, subject to
considering an employees’ personal circumstances, direct the employee to take annual
leave with 24 hours’ notice.
[2020] FWCFB 1715
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(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 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.
I.2.5 Close down
(a) Instead of clause 35.3 (Close-down), and subject to clause I.2.5(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 who 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 closedown.
(b) Clause I.2.5(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.2.5(a), the
period of unpaid leave will count as service for the purposes of relevant award
and NES entitlements.
