1
Fair Work Act 2009
s.156—4 yearly review of modern awards
4 yearly review of modern awards – Overtime for casuals
(AM2017/51)
VICE PRESIDENT HATCHER
VICE PRESIDENT CATANZARITI
DEPUTY PRESIDENT BULL SYDNEY, 30 OCTOBER 2020
4 yearly review of modern awards – common issue – overtime for casuals – final
determinations.
Introduction
[1] We have published two decisions concerning the common issue of the overtime
entitlements of casual employees as part of the conduct of the 4 yearly review. On 8 October
2019 we published a decision1 (October decision) which dealt with the overtime provisions
applicable to casual employees in 13 awards, and on 18 August 2020 we published a decision2
(August decision) in this matter concerning such provisions in a further 96 modern awards.
On 18 August 2020, draft determinations for variations to 97 awards dealt with in the October
decision and the August decision were published. Interested parties were then afforded a
period of time in which to file written submissions in response to a number of conclusions
characterised as provisional in nature in the October decision and the August decision and in
response to the terms of the draft determinations. This decision will finalise the matters
outstanding from the October decision and the August decision and in doing so will deal with
the matters raised in the parties’ submissions. It will not be necessary for us to refer to
submissions which simply expressed support or a lack of opposition to the draft
determinations.
Australian Industry Group – various awards
[2] The Australian Industry Group (Ai Group) has made submissions about a number of
awards. In respect of three awards - the Aged Care Award 2010, the Health Professionals and
Support Services Award 2020 and the Electrical, Electronic, Communications and
Contracting Award 2010 - the Ai Group seeks reconsideration of substantive provisional or
final conclusions stated in the August decision. We deal with the Ai Group’s submissions
concerning the first two awards immediately below. The third award is dealt with separately
1 [2019] FWCFB 6953
2 [2020] FWCFB 4350
[2020] FWCFB 5636
DECISION
E AUSTRALIA FairWork Commission
[2020] FWCFB 5636
2
later in this decision since the Ai Group’s submissions overlap with submissions made by
other employer organisations in relation to that award.
Aged Care Award 2010
[3] In relation to this award, we determined in the August decision to reject variations
sought by the Health Services Union (HSU) on the basis that the current provisions were
sufficiently clear. In doing so, we expressed the conclusion that the overtime penalty rates
prescribed in clause 25.1(b) were, in the case of casual employees, to be applied to the casual
rate inclusive of the casual loading (i.e. the compounding approach). We took this approach
because the entitlement to overtime in clause 25.1(b) was prescribed by use of the expressions
“time and a half”, “double time” and “double time and a half”. On the basis of the Full Bench
decisions in AMWU v Energy Australia Yallourn Pty Ltd3 and ANMF v Domain Aged Care
(QLD) Pty Ltd,4 we said:
“These are traditional industrial expressions which have a traditional meaning. The
“time” referred to is the rate of pay that would be payable to the employee for ordinary
hours. In the case of casual employees, the ordinary time rate is inclusive of the casual
loading. Therefore, the overtime rate is calculated by reference to the ordinary time
rate inclusive of that loading, unless there is some provision which expressly indicates
otherwise. That means that the casual loading is included in the overtime rate on a
compounding basis.”5
[4] The above approach (the Yallourn/Domain approach) was applied consistently in the
August decision.
[5] The Ai Group contends in its submissions that the conclusion expressed concerning
the Aged Care Award involved a denial of procedural fairness, in that the HSU did not
contend that the compounding approach should be applied to the calculation of overtime rates
in the award and, consequently, the Ai Group had not addressed this issue in its submissions
in reply. Nor, it is contended, had the Commission put the parties on notice that it intended to
determine the issue of the rate at which casual employees were to be paid. Accordingly, Ai
Group contends, the issue should be revisited, and in that connection submits that:
there was no evidence, submission or material before the Commission that the
expressions “time and a half”, “double time” and “double time and a half” have a
traditional meaning, and this proposition is opposed by the Ai Group;
the proposition is in direct contradiction with the “widely accepted” proposition
that, in general terms, a penalty rate is not to be applied on another such rate or
premium;
the decision in Re Aged Care Association Australia Ltd & Others6 is expressive of
this proposition, as are the decisions in Australian Manufacturing Workers’ Union
3 [2017] FWCFB 381, 262 IR 300
4 [2019] FWCFB 1716
5 [2020] FWCFB 4350 at [25]-[27]
6 [2012] FWA 9420
[2020] FWCFB 5636
3
(AMWU) v UGL Pty Ltd T/A UGL Limited7 and Transport Workers’ Union of
Australia v SCT Logistics8;
in its experience, the Ai Group had in its dealings with other employer organisations
and unions during the 4 yearly review not encountered any assertion of the
proposition described in paragraph [25] of the August decision;
the advice given by Fair Work Ombudsman (FWO) has not been consistent with the
approach taken in the August decision;
the Domain Aged Care decision did not state any overarching industrial principle or
establish any traditional meaning, and paragraphs [16]-[21] of the decision made
clear that the Full Bench’s conclusion in that decision was based on detailed
analysis of various other provisions in the award under consideration (the Nurses
Award 2010);
the provisions of the Aged Care Award are distinguishable from the Nurses Award,
in that clause 10.4(b) of the former award makes very clear that the casual loading
is a separate and distinct amount payable to a casual employee and thus does not
form part of the ordinary rate, and the Aged Care Award does not contain
provisions comparable to clause 10.4(d) or clause 28.1(c) of the Nurses Award;
the Ai Group had, since the Domain Aged Care decision, filed an application to
vary the award to reverse its effect and, in relation to that application it had filed
submissions contending, amongst other things, that Domain Aged Care decision had
been wrongly decided;
in light of that development, this Full Bench should not rest its decision on the basis
of Domain Aged Care and, if it intends to do so, interested parties should be put on
notice of thus such that they may make further submissions about that decision;
the Yallourn decision likewise did not establish the traditional meaning referred to
in the August decision or state any proposition of general principle, but was
concerned with the proper interpretation of the enterprise agreement before it based
on the language used in the relevant clauses;
accordingly, the Commission should now reconsider the August decision in relation
to the Aged Care Award, conclude that the expressions “time and a half” and
“double time” do not have the traditional meanings referred to in paragraph [25] of
the August decision and determine the matter without reference to the Domain Aged
Care decision or the Yallourn decision;
alternatively, if the Full Bench intends to rely on Domain Aged Care, it should
afford parties the opportunity to make submissions about why the decision was
incorrect, and call for submissions about the proper interpretation of the Aged Care
Award;
7 [2020] FWC 889
8 [2013] FWC 1186
[2020] FWCFB 5636
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in respect of the Aged Care Award, the Australian Industrial Relations Commission
(AIRC) award modernisation Full Bench had determined in a decision issued on 3
April 20099 that the cumulative method (involving the separate calculation of
overtime on the ordinary rate and calculation of the casual loading also on the
ordinary rate) should be applied, including to the Aged Care Award and the Nurses
Award, and this should inform the interpretation of the Aged Care Award
provisions;
if the Aged Care Award provisions were not consistent with the intention of the
AIRC award modernisation Full Bench, the parties should be given the opportunity
to make an application pursuant to s 160 of the Fair Work Act 2009 (FW Act) to
correct the text of the award on the basis that it was a mistake;
if the Full Bench proceeds to vary the Aged Care Award to implement the
compounding approach, this may extinguish the capacity of parties to bring a s 160
application, so that before this happens the interested parties should be given the
opportunity to “properly ventilate the relevant issues”;
a variation to the award requiring the compounding method would amount to a
significant change to the rate payable to casual employees and impose markedly
increased employment costs on overtime, and would be inconsistent with the
manner the award has been applied for many years (having regard to the FWO
advice); and
the variation would require a finding that the proposed change was necessary to
meet the modern awards objective, and in that respect the proposition that casual
employees should receive a higher level of overtime than other employees is
absurd, lacking in industrial merit and not fair to employees or employers.
[6] We propose to deal with the substance of the Ai Group’s submissions about the
relevant provisions of the Aged Care Award, but we reject the submission that there had been
any denial of procedural fairness to date in our consideration of this award or that the process
by which we gave parties the opportunity to respond to the draft determination for this award
should merely be the precursor to further rounds of submissions and hearings. We do so for
the following five reasons.
[7] First, there is no basis for the proposition that interested parties had a legitimate
expectation that the Commission would, in its consideration of the casual overtime provisions
of the Aged Care Award as part of the conduct of the 4 yearly review, be constrained to a
consideration of the specific variation proposal advanced by the HSU. As was stated in 4
yearly review of modern awards – Fire Fighting Industry Award 201010 in 2016 in relation to
the conduct of the 4 yearly review (footnote omitted):
9 [2009] AIRCFB 345
10 [2016] FWCFB 8025
[2020] FWCFB 5636
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“[21] The Review is to be distinguished from inter partes proceedings. Section
156 imposes an obligation on the Commission to review all modern awards and each
modern award must be reviewed in its own right. The Review is conducted on the
Commission’s own motion and is not dependent upon an application by an interested
party. Nor is the Commission constrained by the terms of a particular application. The
Commission is not required to make a decision in the terms applied for (s.599) and, in
a Review, may vary a modern award in whatever terms it considers appropriate,
subject to its obligation to accord interested parties procedural fairness and the
application of relevant statutory provisions, such as ss.134, 138 and 578.”
[8] Second, the “Overtime for Casuals” aspect of the 4 yearly review was initiated by a
Statement issued by the Full Bench (as then constituted) on 4 December 201711 which, by
way of a table attached to the Statement, identified modern awards in which it was considered
there was ambiguity as to the overtime entitlements of casual employees. This table identified,
in relation to the Aged Care Award, that it was “Unclear at what rate overtime is payable”.
The Statement also referred to (and hyperlinked) a research paper issued by the FWO in 2014
which identified modern awards in which it was considered that casual employees’
entitlement to overtime and the interaction between the casual loading and overtime rates
either were or were not clearly stated. That report (at p.51) identified that the FWO considered
that the interaction between the casual loading and overtime was not clearly stated in the Aged
Care Award. Accordingly, all interested parties were on notice at the outset that this was an
issue which the Commission intended to resolve.
[9] Interested parties were afforded multiple opportunities to file submissions in relation
to the awards and issues the subject of the proceedings. Submissions filed by Australian
Business Industrial and NSW Business Chamber (ABI) on 19 January 2018 and the HSU on
23 January 2018 made submissions about whether the overtime provisions of the Aged Care
Award are ambiguous with respect to the calculation of the rate of overtime for casual
employees, although it is not clear whether they agreed as to what the calculation method was.
The HSU’s submissions appeared to indicate that the cumulative approach was applicable, but
in further submissions filed on 3 May 2019, shortly after the Domain Aged Care decision was
delivered, it stated that this decision was applicable to the Nurses Award and “may also be
relevant to the interpretation of other awards that contain similar provisions in relation to
casual employees and overtime penalties”. The Ai Group did not, prior to the August
decision, file any submissions relating to the calculation of the overtime rate for casual
employees under the Aged Care Award, nor did it respond to the HSU submissions of 3 May
2019.
[10] Third, the current proceeding was identified at the outset as a “common issue”
proceeding in the 4 yearly review – that is, one in which an issue or issues common to a
number of awards required determination. This meant that submissions raised by interested
parties with respect to particular awards necessarily had implications for other awards. It is
clear that there was a live issue about the applicability of the Yallourn and Domain Aged Care
decisions. For example, one or both of these decisions were relied on by relevant unions to
support the application of the compounding approach in relation to the Black Coal Mining
Industry Award 2010, the Contract Call Centres Award 201012 and the Textile, Clothing,
11 [2017] FWCFB 6417
12 Now the Contract Call Centres Award 2020
[2020] FWCFB 5636
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Footwear and Associated Industry Award 2010. In submissions filed on 24 December 2019,
the Ai Group responded in detail to this and made submissions to the effect that Yallourn was
not a relevant authority and should not be followed, and that Domain Aged Care was wrongly
decided and “the Full Bench as presently constituted should not … appropriate any weight or
rely on Domain Aged Care in these proceedings” (underlining added). In the context of this
“common issue” proceeding, it could not legitimately be expected that the issue of the
applicability of the Yallourn and Domain Aged Care decisions would not arise with respect to
other awards, such as the Aged Care Award, in which the same or similar expressions were
used. The Ai Group’s submissions of 24 December 2019 demonstrate that it understood the
potential for the broader applicability of the Yallourn and Domain Aged Care decisions.
[11] Fourth, the August decision afforded all parties an opportunity to file, within 21 days,
further submissions in response to the draft determinations that were published, including in
relation to the Aged Care Award. Consistent with the standard practice adopted by the
Commission throughout the course of the 4 yearly review, this was intended to ensure that
interested parties had a final opportunity to be heard before the ultimate step of varying any
award was taken. The Ai Group sought an extension of time until 29 September 2020 (i.e. a
further 21 days) to file its submissions, and this was granted. It then sought a further
extension, until 2 October 2020, and this was granted (albeit until midday that day rather than
at close of business, as had been sought). It has thus been given the opportunity to make
whatever further submissions it wishes in relation to the Aged Care Award. It has taken
substantial and appropriate advantage of that opportunity. However, there is no legitimate
basis for an expectation that this opportunity could be used to request the right to make further
submissions and advance a more developed case at some unspecified time down the track.
[12] Fifth, there is no basis to consider that the whole matter should be re-opened to receive
submissions from other interested parties. No other party has filed any submission in response
to the draft determination for the Aged Care Award, including parties which (with respect to
the Ai Group) have historically demonstrated a greater level of involvement and interest in
this award. Consequently there is no reason to think that any other party wishes to be heard
further in relation to this award.
[13] We turn now to the substantive matters raised in the Ai Group’s submissions. We
reject the submissions that no general proposition concerning the meaning of the expressions
“time and a half”, “double time” and “double time and a half” can be derived from the
Yallourn and Domain Aged Care decisions. Both decisions proceeded on the basis that the
“time” referred to in these expressions, on their ordinary meaning, is the employee’s ordinary
time rate of pay. The Ai Group’s submissions did not identify that these expressions had any
different ordinary meaning. Both decisions also proceeded on the basis that, in the absence of
any textual contra-indicator, the ordinary rate of pay for a casual employee includes the casual
loading.
[14] There are examples of awards where, despite the use of the expressions “time and a
half”, “double time” and “double time and a half” to describe the prescribed rate of overtime,
the award is not to be construed as requiring the compounding approach because other
provisions express an intention that the casual loading not form part of the ordinary rate for
the purpose of the calculation of the overtime rate. A number of awards falling into this
category were identified in the August decision; for example, in the Local Government
[2020] FWCFB 5636
7
Industry Award 201013, clause 10.5(c) expressly provided that overtime penalties for casual
employees would be calculated exclusive of the casual loading, and clause 25.2(c) provided
that overtime penalties were to be calculated on the employee’s “hourly ordinary time rate”,
which expression was defined in clause 3.1 in a way that clearly did not include the casual
loading.
[15] Contrary to the Ai Group’s submissions however, clause 10.4(b) of the Aged Care
Award does not provide the requisite textual contra-indicator or serve to distinguish this
award from the Nurses Award considered in Domain Aged Care. Clause 10.4 of the Aged
Care Award provides:
10.4 Casual employees
(a) A casual employee is an employee engaged as such on an hourly basis, other than
as a part-time, full-time or fixed term employee, to work up to and including 38
ordinary hours per week.
(b) A casual employee will be paid per hour worked at the rate of 1/38th of the weekly
rate appropriate to the employee’s classification. In addition, a loading of 25% of that
rate will be paid instead of the paid leave entitlements accrued by full-time employees.
[16] We do not agree that clause 10.4(b) in some fashion separates the casual loading
described in the second sentence from the hourly rate upon which it operates referred to in the
first sentence such as to remove it from the conception of the ordinary time rate. Clause
10.4(a) defines what a casual employee is for the purpose of the award, and part of the
conception of a casual employee which the clause describes is that such an employee is
engaged to work up and including 38 ordinary hours per week. In that context, clause 10.4(b)
in logical sequence prescribes how the employee is to be paid during those ordinary hours.
That ordinary time rate is described as consisting of two elements in clause 10.4(b). That the
two elements are set out in separate sentences is of no moment; the clause could just have
easily been expressed as one sentence, as it is in clause 10.4(b) of the Nurses Award (“(b) A
casual employee will be paid an hourly rate equal to 1/38th of the weekly rate appropriate to
the employee’s classification plus a casual loading of 25%”). The award does not contain any
general definition of the ordinary time rate which excludes the casual loading in the case of
casual employees.
[17] Nor do we agree with the Ai Group’s submission that clauses 10.4(d) and 28.1(c) of
the Nurses Award render the conclusion reached in Domain Aged Care inapplicable to the
Aged Care Award (or other awards generally). Clause 10.4(d) of the Nurses Award provides:
(d) A casual employee will be paid shift allowances calculated on the ordinary rate of
pay excluding the casual loading with the casual loading component then added to the
penalty rate of pay.
[18] This exclusionary provision specific to shift work was taken by the Full Bench in
Domain Aged Care as confirming that, in the absence of any such exclusion, the ordinary rate
13 Now the Local Government Award 2020
[2020] FWCFB 5636
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included the casual loading.14 The Aged Care Award contains an equivalent provision. Shift
work is dealt with in clause 26 of the Aged Care Award, and clause 26.1 prescribed shift
loadings which are expressed as percentages of the “ordinary hourly rate”. Clause 26.3
provides:
26.3 For the purposes of clause 26.1, “ordinary hourly rate” means the appropriate
weekly rate divided by 38.
[19] This definition, which is expressed as applicable only to clause 26.1, plainly excludes
the casual loading. It gives rise to the same inference as that drawn from clause 10.4(d) of the
Nurses Award by the Full Bench in Domain Aged Care, namely that in the absence of such a
special definition the ordinary hourly rate for casual employees under the Aged Care Award
includes the casual loading. It may be accepted that there is no provision in the Aged Care
Award directly equivalent to clause 28.1(c) of the Nurses Award, which provides that
overtime rates are in substitution for and not cumulative upon the shift and weekend
premiums prescribed in clauses 26 and 29 respectively. The Full Bench in Domain Aged Care
placed some reliance on this provision in reaching its conclusion on the basis that it dealt with
the interaction of different penalties and said nothing about confining the application of the
casual loading.15 However the absence of such a provision applicable to casual employees in
the Aged Care Award is, we consider, of little weight given that clause 26.3 of that award
already deals with the interaction of shift penalties and the casual loading, as already
discussed, and in addition clauses 23.2 and 23.3 provides for weekend ordinary-time penalty
rates for casual employees which are payable in substitution for the casual loading.
[20] The issue of what the AIRC award modernisation Full Bench said in its decision of 3
April 2009 was dealt with in the Domain Aged Care decision as follows (footnotes omitted):
“[20] In arguing against the construction above, Opal sought to rely on the Award
Modernisation decision of 2009, in which a Full Bench of the Australian Industrial
Relations Commission stated that it considered the correct approach to the calculation
of overtime for casual employees was to ‘separate the calculations and then add the
results together... rather than compounding the effect of the loadings’. The passage is
referable to four modern awards that the Commission was publishing in that decision
including the Nurses Award 2010. However, the explanation of the Commission for its
decision to make an award in particular terms cannot properly be used to defeat the
plain meaning of the instrument that it ultimately made. Section 160 of the Act
establishes a process whereby application can be made to the Commission to vary a
modern award to remove ambiguity or uncertainty or to correct an error. If a person
considers that the text of a modern award contains an error, an application can be made
under this provision to correct it.”
[21] We agree with that conclusion. Further, there is a point of more general application to
be made about what the AIRC award modernisation Full Bench said. As we observed at the
outset of the August decision,16 the AIRC award modernisation Full Bench had said in an
earlier decision issued on 19 December 2008 that “…as a general rule, where penalties apply
14 [2019] FWCFB 1716 at [18]
15 Ibid at [19]
16 [2020] FWCFB 4350 at [5]
[2020] FWCFB 5636
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the penalties and the casual loading are both to be calculated on the ordinary time rate”.17
What was said in the 3 April 2009 decision was essentially a reiteration of this statement.
However, it is clear that this “general rule”, which is an expression of the cumulative
approach, was not actually applied in any general way to the awards made by the AIRC award
modernisation Full Bench. As set out in our August decision, there are many modern awards
in which the casual loading does not apply at all where overtime penalty rates apply,
notwithstanding this “general rule”. On the other end of the spectrum, there are many awards
where it is beyond doubt that the casual loading is payable on overtime on a compounding
basis. This includes awards where the casual loading is described as part of the casual
employee’s all-purpose rate (such as the Port Authorities Award 201018 and the Coal Export
Terminals Award 201019). Our August decision also noted that in respect of a number of
awards, all interested parties agreed that the compounding approach applied.20 This list of
awards in this category includes awards in which the Ai Group is a major interested party
(most notably the Manufacturing and Associated Industries and Occupations Award 2020).
We consider therefore that the AIRC award modernisation Full Bench never actually applied
any “general rule” to the interaction between the casual loading and overtime penalty rates in
the modern awards that it made.
[22] One course that might have been taken in this matter is for all modern awards to have
been varied in a consistent manner to apply the cumulative approach to the application of the
casual loading to overtime. However no interested party advocated for this approach, which is
not surprising since it would have resulted in “winners” and “losers” amongst both employers
and employees due to the historical inconsistency of the current position amongst awards.
Instead, we have taken the approach of arriving at a construction of the current position in
each award in which potential ambiguity has been identified and then varying the award in a
manner which puts the position beyond doubt. In the case of the Aged Care Award, that
process has resulted in the conclusion that the compounding approach applies.
[23] We do not accept that the authorities referred to by the Ai Group support the
proposition that it has been “widely accepted” that a penalty rate is not to be applied on
“another such rate or premium”, at least in the context of overtime penalty rates. The decision
of a single member in Re Aged Care Association Australia Ltd & Others21 relevantly
concerned an application to vary the Nurses Award to provide that the penalty rates for
weekend work in clause 26 of the award were payable in substitution for the casual loading.
In rejecting the application, the member made reference to the “…normal notion that multiple
penalties are to be applied, but that penalties are not applied on penalties”. That may be
accepted as a “normal”, but certainly not a universally-applied, proposition. However the
casual loading has not traditionally been characterised as a “penalty rate”. That position is
maintained in the structure of the FW Act, which sets out in s 139(1) the matters which may
be the subject of modern award terms and categorises separately “minimum wages” (which,
under s 284(3), includes casual loadings) in paragraph (a) and “penalty rates” (which includes
for working unsocial, irregular or unpredictable hours and for working on weekends or public
holidays or on shifts) in paragraph (e). Accordingly, the “normal notion” referred to in the
17 [2008] AIRCFB 1000 at [50]
18 Now the Port Authorities Award 2020
19 See [2020] FWCFB 4350 at [195]-[200] and [307]-[308] respectively. Now the Coal Export Terminals Award 2020
20 Ibid at [302]
21 [2012] FWA 9420
[2020] FWCFB 5636
10
decision is not relevant to how a penalty rate is to be applied to a minimum ordinary-time
award rate of pay that includes the casual loading.
[24] The Ai Group’s reliance on the single-member decisions in Transport Workers’ Union
of Australia v SCT Logistics22 and Australian Manufacturing Workers’ Union (AMWU) v
UGL Pty Ltd T/A UGL Limited23 is misplaced for similar reasons. In the former decision, the
member said, in the course of considering whether an enterprise agreement provided for shift
loadings to compound upon the casual loading, that “in terms of general principles it is well
established that it is not usual that an industrial instrument will provide for the payment of a
penalty on a penalty”.24 We do not consider, as already stated, that this proposition is relevant
to the casual loading because it is not a penalty rate. In any event, the member went on to say
that the matter was to be determined on the basis of a consideration of the terms of the
instrument applying the well-understood principles of construction.25 The latter decision also
involved the question of whether an enterprise agreement provided for shift loadings to
compound upon the casual loading. The member said (footnotes omitted):
“[54] I accept that casual loadings and shift loadings are separate and distinct, but
whether and how they interact depends on the terms of the relevant industrial
instrument. In SCT Logistics, the enterprise agreement in question required the
payment of an afternoon or night shift loading “on the Ordinary Hourly Rate”, which
was clearly indicated in the enterprise agreement to be a rate of pay that did not
include the casual loading. It was therefore held by Commissioner Williams that the
shift loading was not to be applied to the casual loading.
[55] I also accept that it is not usual for an industrial instrument to provide for the
payment of a penalty on a penalty. This general approach may be of assistance in some
cases of ambiguity and I have had regard to it in determining the present Dispute. The
question of whether the usual position is adopted in a particular case will always
depend on the language used in the instrument. The task is always one of interpreting
the agreement produced by parties. For example, in Domain Aged Care, the majority
of the Full Bench decided that the Nurses Award 2010 requires casual employees who
work on a weekend and public holiday to receive the applicable weekend and public
holiday penalty calculated on the loaded casual rate of pay.”
[25] The member went on to conclude, based on his analysis of the agreement’s provisions,
that the shift loading was payable on the casual rate, including the casual loading, on a
compounding basis.26 We cannot identify any inconsistency between this decision and the
proposition we derived from the Yallourn and Domain Aged Care decisions.
[26] We respond briefly to other propositions raised by the Ai Group as follows:
the assertion that the Ai Group had not encountered in its dealing with other
organisations any articulation of the proposition contained in paragraph [25] of the
22 [2013] FWC 1186
23 [2020] FWC 889
24 [2013] FWC 1186 at [16]
25 Ibid at [18]-[21]
26 [2020] FWC 889 at [56]-[57]
[2020] FWCFB 5636
11
August decision cannot reasonably be assigned any probative weight and is
irrelevant to the proper construction of the Aged Care Award;
there is no evidence before us as to the manner in which employers covered by the
Aged Care Award pay overtime to their casual employees (apart from a weak
inference which could arguably be drawn from the FWO advice) or the extent to
which casual employees are used to perform overtime work, and therefore there is
no sound basis to conclude that the variation of the award in accordance with the
draft determination would “impose markedly increased employment costs on
employers”;
there is no merit in the proposition that our finalisation of this aspect of the 4 yearly
review in relation to the Aged Care Award should be deferred on the basis that the
Ai Group has filed an application to vary casual overtime provisions of the Nurses
Award; and
there is likewise no basis to defer finalising this matter on the basis that the Ai
Group or some other party might file an application to vary the Aged Care Award
pursuant to s 160 of the FW Act at some time in the future.
[27] We confirm the conclusion reached in relation to the Aged Care Award in the August
decision. We consider that it is necessary to make the variation set out in the draft
determination published for this award in order to achieve the modern awards objective in s
134(1) of the FW Act. In reaching that conclusion, we have placed determinative weight on
the consideration contained in s 134(1)(g) – that is, relevantly, the need to ensure that the
casual overtime provisions in the award are clarified and rendered unambiguous so that they
are “simple, easy to understand [and] stable”. In relation to s 134(1)(a), some employees
covered by the Aged Care Award are low paid, but the purpose of the variation is not to
increase the remuneration of employees per se, so we regard this to be a relevant neutral
consideration. For the same reason, we consider s 134(1)(da)(i) (“the need to provide
additional remuneration for … employees working overtime”) to be a relevant but neutral
consideration. In relation to s 134(1)(f), there is no basis for it to be concluded that the making
of the variation would have any impact of significance on productivity and employment costs,
and the regulatory burden will be eased marginally if the relevant award obligations are
expressed in a clearer and more comprehensible way. We do not consider that the other
matters required to be taken into account under s 134(1) are relevant.
[28] We note that the current COVID-19 pandemic has had disproportionate effects upon
the aged care sector, particularly in Victoria, although this appears to be easing. Because this
may have affected the capacity of employers in the sector to make any necessary adjustments
in response to award variations, will have decided that 1 March 2021 will be the operative
date of the variation.
Health Professionals and Support Services Award 2020
[29] In the August decision, we determined that, properly construed, the Health
Professionals and Support Services Award 201027 provided for the compounding approach to
27 Now the Health Professionals and Support Services Award 2020
[2020] FWCFB 5636
12
be applied and, because relevant provisions of the Health Professionals and Support Services
Award 2020 which came into effect on 18 June 2020 altered that pre-existing position, it
should be varied to unambiguously provide for the compounding approach to be applied.28 A
draft determination was published to that effect.
[30] In response, the Ai Group submits that:
the HSU did not submit that the compounding approach should be applied, and did
not rely on the Domain Aged Care decision for that purpose, contrary to paragraph
[113] of the August decision;
it was therefore not apparent that the question of whether the compounding
approach was to apply to this award was a matter under consideration by the
Commission;
submissions in reply to the HSU submissions were filed by ABI, the Australian
Federation of Employers and Industries (AFEI) and the Private Hospital Industry
Employer Associations (PHIEA), which argued that it had previously been agreed
that the casual loading was not payable on overtime and the HSU should not be
permitted to re-agitate the matter;
no submissions had been made in relation to the application of the compounding
approach;
the August decision in relation to this award was made squarely on the basis of the
Yallourn/Domain approach; and
the position in relation to this award is analogous to that of the Aged Care Award
and, accordingly, the same course should be followed.
[31] We reject this submission, for the reasons set out in relation to the Aged Care Award
above. We also note the following chronology in relation to our consideration of this award:
(1) The Health Professionals and Support Services Award 2010 was an award
identified in the Statement of 4 December 2017 in which it was unclear at what
rate overtime was payable to casual employees.
(2) As noted in the August decision, the interested parties initially reached an
agreement that the casual loading was not payable on overtime at all, but in
submission dated 23 January 2018, the HSU submitted that this was an error
and that it did not agree that overtime penalty rates were payable in
substitution for the casual loading.29
(3) In submissions filed on 3 May 2019, the HSU submitted (in reply to
submissions made by the PHIEA) that under the Health Professionals and
Support Services Award 2010 casual employees had an entitlement “to
28 [2020] FWCFB 4350 at [114]-[115]
29 [2020] FWCFB 4350 at [110]
[2020] FWCFB 5636
13
overtime in addition to casual loading” and, more generally, noted the decision
in Domain Aged Care and submitted that it “may also be relevant to the
interpretation of other awards that contain similar provisions in relation to
casual employees and overtime penalties”. Beyond this, the HSU did not
specify a view in favour of the cumulative or the compounding approach.
(4) Consequently, in a Statement issued by the presiding member on 6 December
2019, the Health Professionals and Support Services Award 2010 was
identified as one of six awards in relation to which there was no dispute that
there were outstanding issues requiring resolution, and directions were made
for the filing of evidence and submissions.30
(5) Pursuant to these directions, the PHIEA filed submissions on 15 January 2020.
In these submissions, it noted the reference in the HSU’s submissions to the
Domain Aged Care decision and said in response that it concurred with the
submissions of the Ai Group of 24 December 2019 (to which we have referred
in paragraph [10] above) that the approach taken in the Domain Aged Care
decision should not be followed in this proceeding. The PHEIA submissions
also engaged in an analysis of the specific provisions of the award to support
its position that the casual loading was not payable on overtime.
(6) Submissions were also filed by the AFEI (on 17 January 2020) and ABI (on 20
January 2020). The Ai Group did not file any submissions pursuant to the
directions contained in the 6 December 2019 Statement in respect of the
Health Professionals and Support Services Award 2010, nor had it earlier done
so in response to the HSU submissions of 23 January 2018 and 3 May 2019 or
at all.
[32] This chronology demonstrates a number of propositions. First, ambiguity as to the rate
of overtime payable to employees under the Health Professionals and Support Services
Award 2010 was identified as being, from the Commission’s perspective, an issue requiring
resolution from the outset of the proceedings. Second, at least from 3 May 2019, the HSU
placed at least some reliance on the Domain Aged Care decision in relation to the awards in
which it had an interest, including this award. Third, the Ai Group had numerous
opportunities to make submissions about this award and to respond to the HSU’s submissions,
most recently pursuant to the directions in the 6 December 2019 Statement, and declined to
take advantage of these opportunities. We do not accept that in these circumstances that the
Ai Group could reasonably not have understood that the Yallourn and Domain Aged Care
might potentially have been regarded as applicable to this award, or that in some way the Ai
Group was denied procedural fairness.
[33] In any event, parties have been given the opportunity to respond to our conclusions
concerning the Health Professionals and Support Services Award 2010 in the August
decision. We have dealt with the Ai Group’s general submissions concerning the Yallourn and
Domain Aged Care decisions in connection with the Aged Care Award. The Ai Group has not
identified in its submissions any specific textual considerations which would displace the
application of the Yallourn and Domain Aged Care decisions in respect of this award.
30 [2019] FWC 8318 at [12]-[13]
[2020] FWCFB 5636
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Accordingly we confirm that conclusion. We consider that it is necessary to make the
variation set out in the draft determination published for this award in order to achieve the
modern awards objective in s 134(1) of the FW Act. As with the Aged Care Award, we have
placed the most weight on the consideration contained in s 134(1)(g) – that is, the need to
ensure that the casual overtime provisions in the award are clarified and rendered
unambiguous so that they are “simple, easy to understand [and] stable”. For the same reasons
given in relation to the Aged Care Award, the matters in s 134(1)(a) and s 134(1)(da)(i) are
relevant but neutral consideration. In relation to s 134(1)(f), there is no basis for it to be
concluded that the making of the variation would have any impact of significance on
productivity and employment costs, and the regulatory burden will be will be eased
marginally if the relevant award obligations are expressed in a clearer and more
comprehensible way. We do not consider that the other matters required to be taken into
account under s 134(1) are relevant.
Other awards
[34] The Ai Group submitted that we should consider not varying other awards where we
relied upon the Yallourn/Domain approach in the August decision until we have considered
its submissions about that approach in respect of the Aged Care Award, the Health
Professionals and Support Services Award and the Electrical, Electronic, Communications
and Contracting Award. Given the conclusion we have expressed concerning the first two
awards above, and the conclusion we express in relation to the third award later in this
decision, we do not consider that there is any proper basis to defer the variation of the other
awards in relation to which reliance was placed upon the Yallourn/Domain approach.
[35] The Ai Group has identified what it contends are drafting deficiencies in a number of
awards. In respect of the Ai Group’s submissions concerning the following awards, we accept
the submissions to the extent identified:
Asphalt Industry Award 2020
Black Coal Mining Industry Award 201031
Building and Construction General On-Site Award 2010
Business Equipment Award 2020
Clerks – Private Sector Award 2020
Commercial Sales Award 2020
Contract Call Centres Award 2020
Food, Beverage and Tobacco Manufacturing Award 2010
Gas Industry Award 2020 (in relation to clause 11.3)
General Retail Industry Award 2020
31 This is without prejudice to the position of any party with respect to the finalisation of the 2020 version of this award.
[2020] FWCFB 5636
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Graphic Arts, Printing and Publishing Award 2010 (in relation to the typographical
error in clause 33.7)
Joinery and Building Trades Award 2010 (as to the proposed amendment to the
note to clause 12.6 and to clauses 30.2(d), 30.6(f) and 30.7(b))
Oil Refining and Manufacturing Award 2020
Plumbing and Fire Sprinklers Award 2010
Premixed Concrete Award 2020 (in relation to Note 1 below clause 20.2)
Seafood Processing Award 2020
Telecommunications Services Award 2010
[36] The draft determinations for those awards in which a 2020 version has commenced
operation will be amended accordingly. Where, in respect of the remaining 2010 awards, the
Ai Group’s submissions relate to incompatibility with the drafting of the exposure draft for
the 2020 version of the award, the necessary adjustments will be made to 2020 version when
they are published.
[37] We deal with the other matters raised in the Ai Group’s submissions below.
Airline Operations – Ground Staff Award 2020
[38] The draft determination for this award includes a proposed variation to clause 24.2(b)
of this award, which sets a penalty rate of 200% where an employee is required by the
employer to resume or continue work without having a break of 10 consecutive hours until
the employee is released from duty. The variation would provide a separate penalty rate of
225% for casual employees inclusive of the casual loading. The Ai Group contends that this
aspect of the variation should not be made because the clause is not applicable to casual
employees. It submits in this respect that the clause cannot conceptually apply to a casual
employee because such an employee is not compelled to perform work offered by their
employer, and points to equivalent provisions in other awards where casual employees are
expressly excluded from their operation.
[39] We do not accept the submission. Casual employees are not excluded from the
operation of clause 24.2(b), so a comparison with award provisions where they are excluded
is beside the point. The nature of contractual arrangements for employees who, under an
award (irrespective of the position at law) are categorised as casual employees, are diverse,
and may include employees who work in accordance with a roster.32 We therefore consider
that clause 24.2(b) may in some circumstances have application to casual employees, and the
clause will be varied as per the draft determination.
Gas Industry Award 2020
[40] The draft determination for this award prescribes the casual rate, calculated on a
cumulative basis, for clause 19.6(c), which prescribes a penalty rate for employees who have
32 See e.g. TWU v Swissport Australia Pty [2020] FWCFB 4232
[2020] FWCFB 5636
16
worked overtime and then directed to resume work before a 10 hour break is taken. The Ai
Group submits that clause 19.6(c) should not be varied as proposed because the provision
should not be construed as applicable to casual employees. The submission is advanced on the
same basis as for the Airline Operations - Ground Staff Award 2020, and is rejected for the
same reasons we gave above in respect of that award.
Graphic Arts, Printing and Publishing Award 2010
[41] Similar to the previous two awards, the draft determination for this award amends
clause 33.7, which provides that a penalty rate is payable for employees who work overtime
and are then required to work before they have had a break of 10 hours, by prescribing the
penalty rate payable to casual employees (on a compounding basis). The Ai Group again
submits that clause 33.7 is not applicable to casual employees and therefore the variation
should not be made. We reject the submission for the same reasons we gave in relation to the
Airline Operations - Ground Staff Award 2020.
[42] The draft determination also amends clause 33.8, which provides for a penalty rate to
be paid for an employee who works 6 consecutive days or shifts and then is required to work
without having had a 36 hour break, to prescribe the penalty rate amount payable to a casual
employee in that situation. The Ai Group contends that the variation should not be made
because the provision, properly construed, is not applicable to casual employees. We accept
this submission. Clause 33.8(a) is expressed to operate by reference any employee who is
either a “day work employee” or a “shiftwork employee”. These terms are not expressly
defined, but their use in clause 30, Ordinary hours of work and rostering, suggest that they
are referable to employees working an average of 38 hours per week – that is, full-time
employees. Clause 33.8(a) confirms this in that, as the Ai Group points out, it refers to there
being no reduction in the “weekly wage” of the employee. Because we consider that clause
33.8 does not apply to casual employees, the variation proposed to that provision in the draft
determination will not be made.
[43] The Ai Group also submitted that the draft determination’s use of the term “hourly
rate” is unclear since it is not defined in the award. This is incorrect; the term is defined in
clause 3.1. We reject the other contentions made by the Ai Group concerning the draft
determination.
Health Professionals and Support Services Award 2020
[44] In addition to the substantive issue concerning this award which we have earlier dealt
with, the Ai Group has raised a concern about the terms of the draft determination.
Specifically, the draft determination proposes to amend clause 24.3(b) (renumbered as
24.4(b)), which sets a penalty rate to apply if an employee works overtime and is instructed to
commence work by the employer without having had a 10 hour break, by prescribing the
penalty rate for a casual employee (inclusive of the casual loading, calculated on a
compounding basis). The Ai Group submits that the provision is not applicable to casual
employees and accordingly that the variation should not be made. This submission is
advanced on substantially the same basis as for the Airline Operations - Ground Staff Award
2020, and we reject the submission for the same reasons as we gave in respect of that award.
Premixed Concrete Award 2020
[2020] FWCFB 5636
17
[45] In relation to this award, the Ai Group opposes the variation proposed in the draft
determination to clause 20.4(c), which concerns the penalty rate payable when an employee
who works overtime does not have a 10 hour break before being directed to resume work. The
submission is again advanced on substantially the same basis as for the Airline Operations -
Ground Staff Award 2020, and we reject the submission for the same reasons as we gave in
respect of that award.
Security Services Industry Award 2020
[46] The draft determination for this award would establish a new clause 11.3 to give effect
to the conclusion in the October decision that it should be made clear that casual employees
are entitled to overtime penalty rates when they work in excess of 10 hours in a shift, or 12
hours by agreement, or where they work in excess of 38 hours per week or an average of 38
hours per week across the period of a roster cycle. The Ai Group submits that, insofar as the
proposed variation makes reference to “…a roster established pursuant to clause 13.1…”, it
is defective because clause 13.1 applies only to full-time employees. It proposed an alternate
draft of the provision which would replicate the rostering options permitted under clause 13.1.
[47] We accept that there is a drafting difficulty in the draft determination, as the Ai Group
submits. However, we think that a better solution would for the variation to add a new
paragraph (c) to clause 19.2 as follows:
(c) An employer must pay a casual employee at the overtime rate for any time
worked in excess of:
(i) 10 hours per shift or, if there is an agreement under clause 13.3(c), 12
hours per shift; or
(ii) any time worked in excess of 38 hours per week or, where the casual
employee works in accordance with a roster that operates across a
period not exceeding 8 weeks, in excess of an average of 38 hours per
week across the period of the roster cycle.
Storage Services and Wholesale Award 2020
[48] The Ai Group opposes the variation proposed in the draft determination for this award
to clause 21.4(c), which concerns the penalty rate payable when an employee who works
overtime does not have a 10 hour break before being directed to resume or continue work.
The submission is again advanced on substantially the same basis as for the Airline
Operations - Ground Staff Award 2020, and we reject the submission for the same reasons as
we gave in respect of that award.
Sugar Industry Award 2020
[49] The Ai Group has raised two objections to the draft determination for this award. First,
it objects to the proposed variation to clause 29.4(b)(i), which prescribes a penalty rate for
employees who work overtime and are then instructed to resume or continue work without
having completed a 10 hour break, by adding the rate applicable to casual employees. On the
same basis as that advanced in relation to the Airline Operations - Ground Staff Award 2020,
the Ai Group contends that the provision is not applicable to casual employees and,
[2020] FWCFB 5636
18
accordingly, that the variation should not be made. We reject the submission for the reasons
which we earlier gave in relation to the Airline Operations - Ground Staff Award 2020.
[50] Second, the Ai Group objects for similar reasons to a variation proposed in the draft
determination to clause 30.12(d), which provides:
(d) Where an employee has been employed for 16 hours or more continuously before
the ordinary starting time at the commencement of any week, unless the employee
receives 8 consecutive hours off duty prior to commencing work on their ordinary
shift, the employee will be paid at 200% of the minimum hourly rate for time worked
during the ordinary shift and until the employee is given 8 consecutive hours off duty.
If time off is given, that portion of the employee’s ordinary shift which falls within
such 8 consecutive hours off duty will be paid for at ordinary rates.
[51] The variation proposed is to specify the percentage penalty rate for casual employees
under the clause inclusive of the casual loading (calculated on a compounding basis). The Ai
Group submits that clause 30.12(d) does not apply to casual employees because a casual
employee cannot be required to perform work in the circumstances described by the clause,
that a casual employee is at liberty to refuse to perform such work if they choose, and that
casual employees do not have an “ordinary shift” as the clause contemplates.
[52] We do not accept the Ai Group’s submission. Clause 30 of the award concerns
shiftwork, and it is not suggested by the Ai Group that a casual employee may not perform
shiftwork pursuant to that clause and, indeed, the Ai Group does not oppose the variations in
the draft determination to clauses 30.7(b), 30.8 and 30.11(b), which make reference to “casual
shiftworkers”. Clause 30.12 as a whole concerns recalls to work, and the Ai Group does not
suggest that a casual shiftworker could not be the subject of a recall to work. We consider that
clause 30.12(d) is capable of application to a casual shiftworker, in that such an employee
may be recalled to work and as a result not have 8 hours off work before commencing work
“on their ordinary shift” – that is, a shift for which the casual shiftworker is rostered to work.
Transport (Cash in Transit) Award 2020
[53] Clause 20.3(c) of this award provides for a penalty rate to apply if an employee who
has worked overtime is instructed by the employer to resume or continue work without having
had 8 hours off duty. The draft determination proposed to vary clause 20.3(c) to specify the
penalty rate for a casual employee, inclusive of the casual loading (calculated on a
compounding basis). The Ai Group opposes this variation on the ground that the provision is
not applicable to casual employees. This submission is advanced essentially on the same basis
as for the Ai Group’s submission in relation to the Airline Operations - Ground Staff Award
2020. We reject the submissions for the reasons earlier given in relation to that award.
Wine Industry Award 201033
[54] The Ai Group opposes the variation proposed in the draft determination for this award
to clause 30.4(b), which concerns the penalty rate payable when an employee who works
overtime does not have a 10 hour break before being instructed by the employer to resume or
33 This award will become the Wine Industry Award 2020 from 13 November 2020
[2020] FWCFB 5636
19
continue work. The submission is again advanced on substantially the same basis as for the
Airline Operations - Ground Staff Award 2020, and we reject the submission for the same
reasons as we gave in respect of that award.
Australian Manufacturing Workers’ Union - Food, Beverage and Tobacco
Manufacturing Award 2010 and Graphic Arts, Printing and Publishing Award 2010
[55] The AMWU did not raise any matter of substance in respect of the draft
determinations for these awards, but pointed out that the casual employment provisions the
subject of the proposed variations were also likely to be separately varied by the Finalisation
of Exposure Drafts Full Bench arising out of the Statements made by that Full Bench on 4
June 202034 and 15 June 2020.35 The AMWU raised concerns about the sequencing of this
process.
[56] We consider that the appropriate course is to proceed with making the variation
determinations for these awards. The further consideration of the variations to be made by the
Finalisation of Exposure Drafts Full Bench can then proceed on the basis of the provisions as
varied in this matter.
Community and Public Sector Union – various awards
[57] In relation to the Broadcasting, Recorded Entertainment and Cinemas Award 2010,36
the Contract Call Centres Award 2020, the Telecommunications Services Award 2010,37 the
Labour Market Assistance Industry Award 2020 and the Miscellaneous Award 2020, the
Community and Public Sector Union (CPSU) submitted that the use of the expression “for
each overtime hour worked” in the draft determinations in connection with the prescription of
the overtime rate for casual employees may unintentionally cause confusion as to whether a
full hour needs to be worked in order to attract payment. It may be noted that the same
expression appears in most of the draft determinations published on 18 August 2020. The
Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) has raised the same
point in relation to the draft determination for the Textile, Clothing, Footwear and Associated
Industries Award 2010.
[58] We doubt that the draft determinations are capable of being read the way suggested by
the CPSU. Expressions of this nature have long been used in awards, including modern
awards. For example, clause 11.5 of the Contract Call Centres Award 2020 says “For each
ordinary hour worked...” in prescribing the payment method for casual employees. We are not
aware that such expressions have ever been understood as requiring the working of whole
hours. However, to avoid any doubt, we will alter the drafting of the overtime provisions in
all the draft determinations that use this terminology so that, as an example, the new clause
11.6 of the Contract Call Centres Award 2020 shall read:
11.6 Payment for working overtime
34 [2020] FWCFB 2907
35 [2020] FWCFB 3094
36 This award will become the Broadcasting, Recorded Entertainment and Cinemas Award 2020 from 13 November 2020
37 This award will become the Telecommunications Services Award 2020 from 13 November 2020
[2020] FWCFB 5636
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When a casual employee works overtime, they must be paid the overtime rates
in clause 20.1.
[59] The CPSU also submitted that the draft determination to vary the Miscellaneous
Award 2020 to make clear the casual employees under that award have an entitlement to
overtime did not deal with the issue of the interaction between the casual loading and the
overtime rate. We disagree. The draft determination specifies (as did the October decision at
[52]) that the overtime rate for casual employees is 150% of the relevant minimum rate for the
first 3 hours and 200% thereafter. This is intended to specify that the casual loading is not
payable on overtime. To put this beyond doubt, we will vary clause 11.2 of the Miscellaneous
Award 2020 to provide as follows:
11.2 Casual loading
(a) For each ordinary hour worked, a casual employee must be paid:
(i) the minimum hourly rate in clause 15 – Minimum rates for the
classification in which they are employed; and
(ii) a loading of 25% of the minimum hourly rate.
(b) The casual loading will not be paid for overtime hours worked.
[60] The CPSU has also identified a cross-referencing error in the draft determination for
the Broadcasting, Recorded Entertainment and Cinemas Award 2010. This will be corrected.
CFMMEU - Textile, Clothing, Footwear and Associated Industries Award 2010
[61] In addition to the drafting issue referred to above, the CFMMEU objected to the
removal of the words “prescribed for the relevant classification” in clause 14.3 in the draft
determination for this award, which appear in the current clause 14.3. They will be re-
inserted, so that the new clause 14.3 will read:
14.3 Casual loading
For each ordinary hour worked, a casual employee must be paid:
(a) the ordinary hourly rate prescribed for the relevant classification; and
(b) a loading of 25% of the hourly rate.
[62] The CFMMEU also submitted that while clause 14.3 in the draft determination
correctly used the expression “ordinary hourly rate”, clauses 39.3 and 39.4 used the
expression “ordinary rate”. It submitted that the latter provisions should be altered to use the
expression “ordinary hourly rate” for the sake of consistency. We consider that the
expression means the same thing, but the proposed alteration will be made.
[2020] FWCFB 5636
21
Electrical, Electronic and Communications Contracting Award 201038
[63] In the August decision, we expressed a provisional view that the overtime penalty
rates prescribed in clauses 26.1(a) and 26.4 of this award were, in the case of casual
employees, to be applied to the casual rate inclusive of the casual loading (i.e. the
compounding approach). Our reasons for this provisional conclusion were distilled in
paragraph [318] of the October decision as follows:
“[318] The use of the expressions “time and a half”, “double time” and “double time
and a half” in clauses 26.1(a) and 26.4, on the Yallourn/Domain approach, suggest that
the overtime rate of a casual employee is to be calculated on the ordinary time rate,
inclusive of the casual loading. Clause 10.3(d), which specifically applies clause 26 to
casual employees, likewise suggests that the penalty rates provided for in clause 26 are
to be applied to the casual rate established by clause 10.3. We cannot identify any
textual contra-indicator which would displace the Yallourn/Domain approach.”
[64] A draft determination which would give effect to this provisional view was published
in conjunction with the August decision.
[65] The National Electrical and Communications Association (NECA), Master
Electricians Australia (MEA) and the Ai Group have lodged submissions which oppose the
final adoption of this provisional view. The NECA submits that:
the adoption of the compounding approach would be an unreasonable and unnatural
construction when read in the context of the award as a whole;
the casual loading is not identified as forming part of the “all purpose rate” used to
calculate overtime penalties and shift loadings;
the requirement in the award to pay the casual loading “for all hours worked”, so
that an employer who pays a casual loading plus the award base hourly rate times
1.5, 2 or 2.5 (as the case may be) when a casual employee works overtime is not in
breach of the award;
the scheme of the award provides that the casual loading is paid in lieu of annual
leave, paid personal/carers leave, notice of termination, redundancy benefits and
other attributes of full-time or part-time employment, and none of those attributes
are increased when an employee works overtime; and
use of the expressions “time and a half”, “double time” and “double time and a
half” do not suggest that overtime payments made to casuals under the award are to
be calculated on the ordinary time rate of pay inclusive of the casual loading.
[66] The NECA further submitted that the Yallourn/Domain approach was inapplicable
here; it said that the Yallourn decision39 concerned an enterprise agreement and not an award,
38 This award will become the Electrical, Electronic and Communications Contracting Award 2020 from 13 November 2020
39 AMWU v Energy Australia Yallourn Pty Ltd [2017] FWCFB 381, 262 IR 300
[2020] FWCFB 5636
22
while the Domain decision40 concerned the Nurses Award 2010 which did not provide that a
casual employee will be paid the casual loading “for each hour worked”. The NECA also
pointed to the difference between the modern award and the previous Electrical, Electronic
and Communications Contracting Industry (State) Award, an award of the NSW Industrial
Relations Commission, which provided that the casual loading was to be paid for all purposes
of the award. The NECA also pointed to the National Electrical, Electronic and
Communications Industry Award 1998 which previously operated in Victoria, South
Australia, Tasmania and the ACT, which did not describe the casual loading as being payable
for all purposes.
[67] MEA submitted that:
the draft determination had not taken into account the “long and well understood
position” of the FWO, the CEPU, MEA, the NECA and the modern award process
conducted by the AIRC in 2007-2009;
no ambiguity or issue was raised during the 2 yearly or 4 yearly reviews by any
party;
account had not been taken of the fact that during the transition period, there had
been no applications for or decisions making take home pay orders; and
in all pre-reform awards except that in South Australia (Electrical Contracting
Industry (SA) Award), the calculation of overtime was not compounding on the
casual hourly rate.
[68] In relation to this award, the Ai Group repeated its general submissions concerning the
Yallourn/Domain approach. Specifically in relation to this award, it submitted that the
cumulative method of calculation was required because:
clause 10.3(b) of the award provided for the payment of two separate and distinct
amounts, namely 1/38th of the minimum weekly wage and, in addition, a casual
loading of 25%;
nothing in the clause states or indicates that these two amounts are to be added to
derive a rate that is payable to casual employees for the purposes of the award;
this approach is supported by clause 10.3(c), which states that the loading is paid
instead of various entitlements and other attributes of full-time or part-time
employment;
this approach is also consistent with the general scheme of the FW Act, which in s
139(1) assumes a distinction between wages payable for ordinary hours of work and
separately identifiable payments such as casual loadings and in s 206(1) assumes
that an award-covered employee will have a base rate of pay which (by virtue of s
16) does not include any separate loading;
40 ANMF v Domain Aged Care (QLD) Pty Ltd [2019] FWCFB 1716
[2020] FWCFB 5636
23
the proposition that minimum wages and casual loadings are intended to be separate
entitlements is reinforced by a consideration of the provisions of the FW Act
dealing with Annual Wage Reviews and National Minimum Wage Orders;
the casual loading is not described by the award as an all-purpose loading, which is
typical of cases where the parties have agreed that the compounding method is to
apply;
clause 10.3(d) does no more than to clarify that overtime rates and the relevant shift
allowances are payable to casual employees, and says nothing about how those
amounts are to apply to casual employees;
clause 26.1 requires the calculation of the relevant rates on the minimum rates
prescribed by the award, but cannot logically be said to apply to any additional
amounts in the absence of any other provisions of the award requiring that such
amounts be included in the calculation of overtime;
the provisional view would result in the absurd outcome whereby other allowances
might be included in the calculation of overtime rates even if they are not described
as all-purpose allowances;
the compounding approach lacks industrial merit, in that there is no justification for
requiring that the casual loading be multiplied during the performance of overtime,
and it is not consistent with the maintenance of a fair safety net for one cohort of
employees to receive a windfall gain from the compounding method; and
a variation to require the compounding method would amount to a substantive
change which would require consideration of whether the proposed change is
necessary to achieve the modern awards objective.
[69] We are not persuaded by the submissions of the NECA, MEA or the Ai Group that we
should depart from the provisional view we expressed in the August decision. The
fundamental issue is that the overtime rates in the Electrical, Electronic and Communications
Contracting Award are prescribed by use of the expressions “time and a half”, “double time”
and “double time and a half”. As earlier explained, these expressions were determined in the
Yallourn decision and the Domain Aged Care decision to have an established industrial
meaning whereby they operated as multipliers of the rate of pay applicable to the employee in
ordinary time which, in the case of casual employees, includes the casual loading. Neither the
NECA nor MEA contended that these Full Bench decisions were wrongly decided. We have
earlier dealt with the submissions of the Ai Group concerning these decisions, and we are not
persuaded that we should depart from the Yallourn/Domain approach where applicable.
[70] As stated in the August decision, the Yallourn and Domain Aged Care decisions
establish a default position whereby the use of the expressions “time and a half”, “double
time” and “double time and a half” indicate that the compounding approach is to be taken
unless there is some textual contra-indicator supportive of a different approach. We reject the
NECA’s submission that the use of the expression “for all hours worked” indicates that a
contrary approach should be taken; it is not a question of whether the casual loading is
payable for all hours worked (which is not in dispute), but rather of the extent of the penalty
rate for working overtime imposed by the use of the expressions “time and a half”, “double
[2020] FWCFB 5636
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time” and “double time and a half”. For the same reason we reject the submission of the
NECA that because the value of the entitlements to paid leave, redundancy and the like for
which the casual loading is intended to compensate do not increase in overtime, the casual
loading should not increase on overtime. While the premise of the submission is correct, it is
not a case of the casual loading increasing, but rather of the overtime penalty rate.
[71] MEA’s submission that no ambiguity has previously been raised about the meaning of
the relevant award provisions and there has been a consensus about this issue is belied by the
fact that, as explained in paragraph [314] of the August decision, our consideration of the
issue was initiated by a submission made by the CEPU that the award required a
compounding approach and a submission to the contrary effect made by the Ai Group.
MEA’s submission concerning the lack of take home pay orders under this award is, with
respect, obscure. The position under the pre-reform awards does not assist the position
advanced by the NECA and MEA: they all used the expressions “time and a half”, “double
time” and “double time and a half” to prescribe the rate of overtime, and two of the awards,
the NSW Electrical, Electronic and Communications Contracting Industry (State) Award and
the Electrical Contracting Industry (SA) Award expressly provided that the casual loading
formed part of the all-purpose rate.
[72] Ai Group’s submission that, under clause 10.3(b), the minimum hourly rate and the
casual loading are separate and distinct amounts is the essentially the same as the textual
submission which Ai Group advanced in relation to the Aged Care Award, and is rejected for
essentially the same reasons. Read with clause 10.3(a), clause 10.3(b) of the award establishes
a casual ordinary-time rate for casual employees which consists of the two elements of the
hourly rate derived from the weekly rates for each classification established by clause 16 and
in addition to the casual loading. Under the Yallourn/Domain approach, the expressions “time
and a half”, “double time” and “double time and a half” operate on the casual ordinary time
rate established by these two elements. There is no textual contra-indicator that suggests that
this approach should not be followed. Further we do not consider that the FW Act necessarily
makes a distinction between wages payable for ordinary hours of work and the casual loading,
as the Ai Group asserts. The definition of “base rate of pay” in s 16(1), which excludes
loadings (including, presumably, the casual loading), only has operation in relation to s 206,
which is confined in its operation to establishing pay rate minima for enterprise agreements
and is not concerned with the power to make or vary awards. As discussed earlier, s 139(1),
which sets out the matters permitted to be the subject of award terms, does not specify the
casual loading as a matter separate from minimum wages (unlike overtime rates and other
penalty rates), and s 284(3)(b) includes the casual loading as an element of minimum award
wages.
[73] For the reasons given in the August decision, we consider that this award currently
provides for the compounding method for the calculation of the overtime rate for casual
employees. The variation proposed in the draft determination would therefore not effect a
substantive variation to the award but is intended to confirm the existing position. The Ai
Group’s submission that the compounding approach lacks industrial merit is not a submission
specifically applicable to this award, but would apply to any award in which we have
determined that the compounding method applies, including awards where the Ai Group
agrees that it applies. As earlier stated, no interested party sought a uniform approach to the
calculation of overtime rates for casual employees based upon any common industrial
principle; rather parties generally sought the continuation and confirmation of what they
considered to be the status quo, and we have determined the matter on that basis.
[2020] FWCFB 5636
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[74] We confirm the provisional view. We consider that the variation in the draft
determination is necessary to achieve the modern awards objective in s 134(1). As with the
Aged Care Award and the Health Professionals and Support Services Award, the need to
ensure that the casual overtime provisions in the award are clarified and rendered
unambiguous means that we have placed the most weight on the consideration contained in s
134(1)(g) – to make the relevant provision “simple, easy to understand [and] stable”.
Similarly, the matters in s 134(1)(a) and s 134(1)(da)(i) are relevant but neutral
considerations. In relation to s 134(1)(f), there is no basis for it to be concluded that the
making of the variation would have any impact of significance on productivity and
employment costs, and the regulatory burden will be will be eased marginally if the relevant
award obligations are expressed in a clearer and more comprehensible way. We do not
consider that the other matters required to be taken into account under s 134(1) are relevant.
The award shall be varied in the terms of the draft determination.
Higher Education Industry - General Staff - Award 2020
[75] In the August decision, we noted (at [299]) that there was a consensus that, under this
award, overtime penalty rates are payable in substitution for the casual loading. The draft
determination published for this award reflected this position. The Group of Eight universities
has submitted that we did not resolve an additional issue which had been raised earlier in the
proceedings, namely an ambiguity in the award as to the circumstances in which overtime is
payable to casual employees. The Group of Eight proposed that a provision be added to the
award to the following effect:
“A casual employee will be paid overtime only in respect of work in excess of 20 per
cent of the ordinary weekly hours of an equivalent full time employee, on one day.”
[76] The Group of Eight submitted that a provision of this nature was contained in the pre-
reform awards applying to university staff and was inadvertently omitted when the modern
award was made in the award modernisation process. A provision of this nature was necessary
because, it was submitted, there were under the current award different ordinary hours for
different groups of staff so that, for example, some had 38 hours and some had 36.75 hours.
[77] The National Tertiary Education Industry Union (NTEU) filed a submission opposing
the Group of Eight’s proposal. It submitted that:
currently, all casual employees are entitled by clause 22.1 to be paid at overtime
rates for work performed in excess of or outside of the span of ordinary hours as set
out in the table in clause 15.1(a);
in that respect, the entitlement to overtime hours for casual employees arose in the
same circumstances as for a non-casual employee; and
the Group of Eight’s proposal would introduce an unjustified discrimination against
casual employees, had no basis in principle, and was beyond the proper scope of the
proceedings.
[2020] FWCFB 5636
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[78] The NTEU acknowledged that an ambiguity could arise as to the point at which a
casual employee is working beyond their ordinary hours, and proposed that the award be
varied to include a provision to the following effect:
“A casual employee will be paid overtime in respect of work which is either in excess of
20 per cent of the ordinary weekly hours of an equivalent full time employee, on one
day, or performed outside the ordinary hours specified in the Table shown in sub-
clause 15.1 (a).”
[79] The Group of Eight universities objected to the NTEU’s submission on the basis that,
as stated in its correspondence to the Commission dated 8 December 2017, the NTEU had
previously agreed to the Group of Eight’s proposed variation. The Australian Higher
Education Industrial Association (AHEIA) supported the Group of Eight’s position. The
NTEU accepted that it had agreed to the Group of Eight’s proposal in 2017, but said that this
was a mistake on its part and that it had not intended to consent to a variation of the award
which would result in a deprivation of existing overtime entitlements for casual employees.
[80] Currently, clause 22.1 of the award provides:
22.1 An employee will be paid overtime for all authorised work performed outside of,
or in excess of, the ordinary or rostered hours as follows:
For overtime worked on Overtime rate
% of minimum hourly
rate
Monday to Saturday—first 2 hours (first
3 hours for PACCT staff)
150
Monday to Saturday—after 2 hours (after
3 hours for PACCT staff)
200
Sunday 200
Public holidays 250
NOTE: See Schedule B—Summary of Hourly Rates of Pay for a summary of hourly
rates of pay including overtime and penalty rates.
[81] There is no reason to read clause 22.1 as being inapplicable to casual employees, and
no party submits that casual employees do not currently have an entitlement to overtime under
the clause. Ordinary hours are defined in clause 15.1(a) as follows:
15.1 Ordinary hours—employees other than shiftworkers
(a) Ordinary hours may be worked in a manner agreed over a 4 week cycle as follows:
Category of staff employees Ordinary
hours
Spread of hours
Building services staff 38 6.00 am–6.00 pm
Monday–Friday
Catering and retail staff 38 6.00 am–7.30 pm
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Monday–Sunday
Security staff 38 6.00 am–6.00 pm
Monday–Sunday
Children’s services staff 38 6.30 am–6.30 pm
Monday–Friday
Storage services staff 38 7.00 am–5.30 pm
Monday–Friday
Building and maintenance staff 38 6.00 am–6.00 pm
Monday–Friday
Trades staff, including plumbers 38 6.00 am–6.00 pm
Monday–Friday
Professional, administrative, clerical,
computing and technical (PACCT)
staff
36.75 8.00 am–6.00 pm
Monday–Friday
[82] Clause 15.2 deals with ordinary hours and rostering for shift workers and, in clause
15.2(a)(ii), provides for a maximum ordinary shift length of 10 hours inclusive of a meal
break.
[83] Although clause 22.1 does not provide a clear clause cross-reference to the ordinary
hours provision in clause 15.1 or the shiftwork rostering provisions in clause 15.2, we
consider that the reference in clause 22.1 to work performed outside of or in excess of “the
ordinary or rostered hours” can only be read as a reference to the ordinary and rostered hours
provided for in clause 15. There is no other relevant provision of the award to which clause
22.1 may be read as referring. Overtime is payable for authorised work “outside of, or in
excess of” ordinary hours, and we consider that means hours worked in excess of 38 hours per
week (which may be averaged over an agreed roster cycle or hours worked outside of the
specified span of ordinary hours for each category of employee) are overtime. There is no day
maximum limit of ordinary hours save that established by the span of hours (which range
from a 10½ to a 13½ hours span) and the 10-hour daily limit for shift workers pursuant to an
established shift roster.
[84] We reject the proposition advanced by the Group of Eight universities that the pre-
reform award provisions concerning overtime for casual employees were “inadvertently
omitted” from the modern award made by the AIRC award modernisation Full Bench. The
relevant chronology is as follows. The main pre-reform awards (the Higher Education
Workers Victoria Award 2005 and the Higher Education General and Salaried Staff (Interim)
Award 1989) contained the following provision:
OVERTIME FOR GENERAL STAFF
Overtime is only payable to casual general staff in respect of work in excess of 20 per
cent of the ordinary weekly hours of an equivalent full time employee, on one day. In
respect of such excess, the employee shall receive the greater of the overtime rate that
would apply to overtime worked on that day by an equivalent full time employee or
the casual loading, but not both.
[2020] FWCFB 5636
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[85] Higher Education was treated as a priority industry in the award modernisation process
conducted by the AIRC. On 1 August 2008, the Group of Eight universities and the AHEIA
filed their proposed draft of a modern award for general staff in the sector which, in clause 17,
dealt with overtime. The proposed clause 17.2.5 in their draft provided:
17.2.5 For the purposes of this clause, overtime payments are only payable to casual
staff in respect of work in excess of 20% of the ordinary weekly hours of an equivalent
full-time staff member, on one day. In respect of such excess, the staff member shall
receive the greater of the overtime rate that would apply to overtime worked on that
day by an equivalent full-time staff member or the casual loading, but not both.
[86] On 12 September 2008, the AIRC published its exposure draft for Higher Education –
General Staff – Award 2010. In respect of overtime, this exposure draft did not in its terms
deal with the circumstances in which overtime was payable. It simply provided for the span of
hours in clause 19 for the various categories of general staff (in terms effectively the same as
the current clause 15.1), and prescribed the rates of overtime in clause 21 as follows:
21. Overtime
Time Worked Overtime Rate
Monday – Saturday 150% of the ordinary rate of pay for the first two
hours; and
200% of the ordinary rate of pay thereafter.
Sunday 200% of the ordinary rate of pay
Public Holidays 250% of the ordinary rate of pay
[87] The AHEIA in response filed a submission in response to this exposure draft on 10
October 2008 in which, relevantly, it submitted that:
there should be a span of 12 hours for professional, administrative, clerical,
computing and technical staff (PACCT staff) (not 10 hours as in clause 19 of the
exposure draft);
the rate of overtime for PACCT staff should be 150% for the first three hours
(rather than 2 hours as in clause 21 of the exposure draft); and
the award should provide for overtime and time in lieu as provided for in clause
17.2 of the employers’ draft award of 1 August 2008 (which included cause 17.2.5
set out above).
[88] The Group of Eight universities also filed a submission in response on 10 October
2008 in which it submitted that:
the span of hours for PACCT staff should be 12 hours (7.30am – 7.30pm), or at
least 11 hours (8.00am – 7.00pm); and
the rate of overtime should be 150% for the first 3 hours for PACCT staff; and
[2020] FWCFB 5636
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the provisions entitling payment of overtime and time off in lieu should reflect
existing award provisions (although the submissions focused on the entitlement in
respect of higher classifications).
[89] In respect of the first point, the Group of Eight submitted (in paragraph 13.4 of its
submissions) that:
“A span of only 8am-6pm for such staff would, if the award were applied, result in
significant increases to access to overtime or shift penalties for staff who work until
7pm in the evening as part of their normal working hours.”
[90] This submission indicates an understanding that, under the exposure draft, work
outside the span of hours would attract overtime penalty rates.
[91] On 19 December 2008 the AIRC made the Higher Education Industry – General Staff
– Award 2010. Notwithstanding the submissions of the AHEIA and the Group of Eight
universities, clause 21 of the award retained the same span of hours as in the exposure draft
for each category of employees. Clause 23, Overtime of the award as made provided:
23. Overtime
23.1 An employee will be paid overtime for all authorised work performed outside of,
or in excess of, the ordinary or rostered hours as follows:
Time worked Overtime rate
Monday – Saturday 150% of the ordinary rate of pay for the first two
hours (first three hours for PACCT staff); and 200%
of the ordinary rate of pay thereafter.
Sunday 200% of the ordinary rate of pay
Public holidays 250% of the ordinary rate of pay
[92] It is apparent that the AIRC award modernisation Full Bench was cognisant of the
submissions of the AHEIA and the Group of Eight, since it acceded to their request to alter
the overtime rate for PACCT staff. However, it did not accept AHEIA’s submission that
clause 17.2 of the employers’ draft award (including clause 17.2.5) be added to the award to
be made; instead, it added the chapeau to the provision which made explicit the link between
the overtime entitlement and the prescription of ordinary hours (including the span of hours)
in clause 21. We infer from this that there was a deliberate rejection of the proposed clause
17.2.5, and that the AIRC award modernisation Full Bench intended that overtime be payable
for any work performed outside the ordinary hours provided for in clause 21, including in
respect of casual employees. This historical context supports the conclusion we have reached
about the proper construction of the current provision.
[93] The Group of Eight’s proposed variation to clause 22 of the award clearly amounts to
a substantive change to a provision which has now been in operation for well over a decade.
There is no arguable basis to consider that its proposed new provision represents a mere
clarification of the status quo. The same may be said of the NTEU’s counter proposal. In the
circumstances, we consider that the appropriate course is to vary clause 22.1 to place beyond
doubt what we consider to be its current meaning. Accordingly, clause 22.1 will be varied so
[2020] FWCFB 5636
30
that its chapeau reads: “22.1 An employee will be paid overtime for all authorised work
performed outside of, or in excess of, the employee’s ordinary or rostered hours under clause
15 as follows:…”.
[94] If the Group of Eight universities, the NTEU or any other party wishes to pursue a
substantive variation to clause 22, it will be necessary for an award variation application to be
made pursuant to s 158(1) of the FW Act. If such an application is made, it will be necessary
for the applicant to demonstrate in its evidence and submissions that the current provision is
not meeting the modern awards objective.
Local Government Associations - Local Government Industry Award 2020
[95] The Local Government Associations41 have raised an issue concerning the penalty rate
payable to casuals when working ordinary time on public holidays under this award. They
seek an amendment to the award to make it clear that the casual loading is not payable in
addition to the public holiday penalty rate of 250% provided for in the award.
[96] This is an issue beyond the purview of the current proceedings, which is not concerned
with public holiday penalty rates. The Local Government Associations should make an
application to vary the award if they hold a concern that there is a lack of clarity about this
issue.
Master Builders Australia – Building and Construction General On-site Award 2010 and
Joinery and Building Trades Award 2010
[97] In relation to these awards, we noted in the August decision at paragraph [300] that
there was consensus that the cumulative approach was applicable in respect of these awards.
In its submissions, the Master Builders Association (MBA) does not take issue with this, but
advances the primary position that no variations to the awards are necessary to clarify the
awards because there is no uncertainty amongst award users about the interpretation of the
relevant provisions of the awards. We reject this for the reasons stated in paragraph [304] of
the August decision.
[98] The draft determination for the Building and Construction General On-site Award
2010 proposes that a note be added to clause 14.6 as follows:
“NOTE: The overtime and weekend work rates for casual employees have been
calculated by adding the casual loading prescribed by clause 14.5 to the overtime and
weekend work rates prescribed by clauses 36.2 and 37—Penalty rates.”
[99] The MBA submits in the alternative that the proposed note in the draft determination
should be replaced with a note in the following form:
“NOTE: The percentages prescribed in clauses 14.6(a), 14.6(b) and 14.7 are inclusive of
the 25% casual loading.”
41 The Local Government Associations are comprised of the Municipal Association of Victoria, Local Government
Association of Tasmania, Local Government Association of South Australia, Local Government Association of
Queensland, Local Government Association of the Northern Territory, Local Government and Shires Association of New
South Wales and Western Australian Local Government Association.
[2020] FWCFB 5636
31
[100] We consider that the note proposed in the draft determination properly explains how
the overtime and weekend work rates prescribed in clause 14.6 have been calculated. The
MBA’s proposed note does not do that and will not therefore be adopted.
[101] The MBA also submitted that the nomenclature “overtime and weekend work rates”
used in the proposed note is inconsistent with the current use of the term “penalty rates” in
the award. We will change the note to read:
“NOTE: The overtime and weekend work penalty rates for casual employees have been
calculated by adding the casual loading prescribed by clause 14.5 to the overtime and
weekend work penalty rates prescribed by clauses 36.2 and 37—Penalty rates.”
Passenger Vehicle Transportation Award 2020
[102] In paragraphs [322] and [333] of the August decision, we expressed concern as to
whether the agreed position conveyed to us about this award by the Australian Public
Transport Industrial Association (APTIA) had in fact been agreed to by the Transport
Workers’ Union (TWU). We invited the TWU to provide advice within 21 days as to whether
it confirmed or contested the advice given by the APTIA. No advice has been forthcoming
from the TWU pursuant to this invitation. In the circumstances, we do not propose to pursue
this matter any further. The award has already been varied in terms consistent with the
position conveyed by the APTIA, so no further action is required in relation to this award.
Pastoral Award 2020
[103] In paragraph [302] of the August decision, we included the Pastoral Award 2010 in
the list of awards in relation to which there was a consensus that the overtime penalty rate is
applied to an ordinary hourly rate consisting of the minimum hourly rate and the casual
loading (i.e. the compounding approach). A draft determination was published to vary the
award consistent with this approach.
[104] However, as was pointed out in submissions filed by the National Farmers Federation
on 25 August 2020, this was an error. We had intended to include the Pastoral Award 2010 in
the list of awards contained in paragraph [300] in relation to which the consensus was that the
casual loading and the overtime penalty rate are added separately to the minimum hourly rate
(i.e. the cumulative approach). On 30 September 2020 we published a statement42 identifying
the error and attaching a new draft determination which was consistent with the cumulative
approach. No party has taken issue with the new draft determination, and accordingly the
award will be varied consistent with this. However the variation will be made to the Pastoral
Award 2020 which takes effect from 6 November 2020.
Tennis Australia – Sporting Organisations Award 2020
[105] In the August decision, we dealt with a claim advanced by the Australian Workers’
Union (AWU) that this award should be varied to make it clear that ordinary hours of work
for a casual employee are no more than 11 hours per day or 38 per week so that the
42 [2020] FWCFB 5250
[2020] FWCFB 5636
32
entitlement to overtime penalty rates for work in excess of ordinary hours is clarified. Tennis
Australia and Gymnastics Australia opposed this, submitting that casual clerical and
administrative employees under the award are not currently entitled to overtime and that no
change was required. We concluded that although the drafting of the applicable award
provisions was obscure, the historical context made it clear that it was intended that casual
and administrative employees be entitled to overtime when working in excess of ordinary
hours. However, we also concluded that the award was drafted defectively because it did not
define when overtime was payable to such employees. We expressed the provisional view that
casual employees should be entitled to overtime for work performed in excess of 38 hours per
week, averaged over 4 weeks, or in excess of 11 hours in a single day, or outside the span of
hours of 6.00am to 6.00pm.43 We also concluded that the casual loading was not payable on
overtime.
[106] In response to the provisional view we expressed in the August decision, Tennis
Australia filed submissions in which it expressed opposition to casual employees becoming
entitled to overtime when working outside the span of hours of 6.00am to 6.00pm. It did not
oppose overtime entitlements being payable for work in excess of 38 hours per week,
averaged over 4 weeks, or in excess of 11 hours in a day. In summary, Tennis Australia
submitted that:
it was a not-for profit sporting organisation covered by the award in respect of its
clerical and administrative and coaching staff, and would be affected by the
proposed changes;
to the extent that it engages casual employees, a significant proportion of the
working hours of such employees (approximately 21% in tennis facilities and 26%
at sporting events) occurs after 6.00pm;
it provides tennis facilities and runs sporting events for the benefit of the
community, and a significant proportion of the community accesses these facilities
in the evening after 6.00pm;
the proposed variation would impose an additional wage burden which would affect
its operations;
the COVID-19 pandemic had detrimentally affected its operations in a significant
way in terms of participation levels and revenue;
the introduction of a span of hours for casual employees was not necessary to meet
the modern awards objective and had not been sought by the AWU, and there were
examples of other awards in which the ordinary hours of casual employees had not
been aligned with those of full-time employees; and
the operation of the variation should be deferred until 1 July 2021.
43 The August decision at [243] referred to the span of hours incorrectly as being 6.00am to 6.00pm, Monday to Friday when
in fact the award in clause 13.1(a) provides for a span of hours of 6.00am to 6.00pm Monday to Sunday for clerical and
administrative staff. However this error was not reflected in the draft determination.
[2020] FWCFB 5636
33
[107] We are satisfied, having regard to the submissions of Tennis Australia, that the
imposition of a span of hours of 6.00am to 6.00pm for casual employees performing clerical
and administrative duties may detrimentally affect the capacity of sporting organisations to
conduct evening sports activities for persons who can only participate after working hours.
However we do not consider that there should be no span of hours for such casual employees,
since it would be unfair that such employees could be required to work any hours at night and
in the early morning without any form of additional compensation, whereas permanent
employees receive overtime penalty rates under the award to compensate them for the social
and physical disabilities associated with such work. With think an appropriate balance would
be to extend the span of ordinary hours for casual and administrative employees to 6.00am to
9.00pm. We consider such a variation is necessary to give effect to the modern awards
objective in s 134(1) of the FW Act, and in that respect we have considered all the matters
required to be taken into account under that provision and have placed particular weight on
the matters in paragraphs (d), (da)(i) and (ii), and (f).
[108] We do not consider that the operative date of the variation should be 1 July 2021, as
proposed by Tennis Australia, since we have modified the form of the variation as discussed
above and because employers have the capacity to adjust their use of casual employees if
necessary to avoid the occurrence and cost of overtime. The operative date will be in
accordance with the standard approach discussed at the end of this decision.
Victorian Ambulance Union Incorporated – Ambulance and Patient Transport Industry
Award 2020
[109] In the October decision, we dealt with an issue agitated by the United Workers’ Union
(then United Voice) concerning the circumstances in which overtime was payable to casual
employees under Ambulance and Patient Transport Industry Award 2010 (as the award then
was). We then dealt with an issue raised in submissions made by the Health Services Union to
the effect that the award should be varied to clearly provide that the casual loading was
payable in addition to overtime penalty rates for casual employees. We expressed the
provisional view that the casual loading was not payable on overtime as follows:
“[30] Clause 10.5(c) does not provide for a single 25% casual loading payable in all
circumstances, but different casual loadings payable on different days which (for
Saturdays, Sundays and public holidays) are in substitution for weekend and public
holiday loadings, as clause 10.5(d) makes clear. We do not consider that clause 10.5(c)
is to be read as applicable to overtime as well as ordinary hours, since that would lead
to weekend overtime attracting a casual loading of 75% in addition to an overtime
penalty of 100% (see clause 24.1(b)). It is more likely that clause 10.5(c) is to be read
as applicable to ordinary hours only, with clause 24.1 setting the overtime penalties
and making no provision for the additional payment of the casual loading. However,
given that this issue has not been the subject of any debate before us, we will not
express any definitive view about it. If the HSU or any other party wishes to pursue the
matter further, they may file submissions addressing the position described above
within 21 days.”
[2020] FWCFB 5636
34
[110] No interested party made any submissions within the 21-day period taking issue with
the provisional view which we expressed. Accordingly, in a statement issued by the presiding
member in this matter on 6 December 2019,44 the following was stated (footnotes omitted):
“[23] Finally, in the Full Bench’s decision of 8 October 2019, the Full Bench expressed
a provisional view about a submission lodged by the HSU on 23 January 2019
concerning the Ambulance and Patient Transport Industry Award 2010, and invited
further submissions from the HSU and any other party if they wished to pursue the
matter further. Submissions were to be filed by 29 October 2019. No submissions were
received. Accordingly the HSU’s submission will be taken to have been resolved by
the view expressed by the Full Bench, and no further step needs to be taken in relation
to the Ambulance and Patient Transport Industry Award in this proceeding.”
[111] On the basis of the above history, we stated in the August decision (at [299]) that this
award was one in relation to which there was a consensus that the casual loading was not
payable on overtime, and a draft determination to vary the award consistent with this position
was published. As should have been clear from paragraph [304] of the August decision, the
publication of this draft determination was for the purpose of allowing interested parties to
comment upon the form of the variation.
[112] However the Victorian Ambulance Union Incorporated (VAUI) has now filed a
submission seeking to re-agitate the substantive issue of whether the casual loading is payable
on overtime – an issue which, as outlined above, was settled in 2019. It has not explained why
a submission of this nature was not filed in the 21-day period following the publication of the
October decision beyond asserting that it was “not a party to the matter at that time”. That
proposition has no merit and is rejected. As was made clear in the 2018 Full Bench decision
in 4 yearly review of modern awards – Fast Food Industry Award 2010,45 award review
proceedings are not inter partes proceedings and do not have “parties principal”. The 4 yearly
review has proceeded on the basis that “interested parties” - that is, parties with a sufficient
interest in relation to an award on the basis that they are covered by it, represent persons
covered by it, or are otherwise affected - have a right to be heard. However, where an
interested party through inaction fails to take advantage of an opportunity to be heard that is
afforded by the Commission, it cannot assume that it will be given a further opportunity at a
time of its own choosing to re-agitate a matter which has been resolved.
[113] In any event, we do not consider that VAUI’s submissions have substantive merit. The
submission reviews the industrial history and traces the origin of the modern award
provisions, but this is said only to support the proposition that there was “no historical
prohibition against payment of both casual loadings and overtime rates”. The submissions
identify, we consider correctly, that the modern award provisions were largely sourced from
the Ambulance Services and Patient Transport Employees Award Victoria 2002. However,
clause 16.13.1 of that award defined a casual employee as “a person who is employed during
any one week for not more than twenty hours”. That means that, by definition, a casual
employee under that award could never work overtime, and that the casual loadings
prescribed in clause 16.13.1(a)-(c) (which were reproduced in the modern award) were never
intended to have any application to overtime. For that reason, the award history is of no
44 [2019] FWC 8318
45 [2018] FWCFB 2797
[2020] FWCFB 5636
35
assistance to VAUI’s position. If anything, it indicates that, in the absence of any indication
by the AIRC award modernisation Full Bench to the contrary, that it was likewise intended
that the casual loadings not be applicable to overtime.
[114] VAUI’s submissions do not otherwise grapple with the fundamental problem
identified in the 2019 decision (beyond dismissing it as irrelevant) that there is no single
casual loading provided for in the modern award but rather different loadings applicable at
different times, which cannot be reconciled with the proposition that it is implicit that the
casual loading is payable on overtime. We reject VAUI’s submissions and affirm the
provisional view stated in the October decision. No alteration to the draft determination is
required.
Further amendments to determinations
[115] In addition to those outlined above, other minor errors have been identified in the draft
determinations published on 18 August 2020 and have been corrected in the determinations
for the following awards:
Legal Services Award 2020
Port Authorities Award 2020
Real Estate Industry Award 2020
Operative date
[116] The awards the subject of a draft determination published on 18 August 2020 will be
varied in the terms of the applicable draft determination, subject to any modifications
determined in this decision. Such variations shall take effect on 20 November 2020 (except in
relation to the Aged Care Award, where the variation will take effect on 1 March 2021 as
discussed above). In respect of awards which will be converted to 2020 awards on 13
November 2020, the variations issued will be to the 2020 awards rather than the 2010 awards.
Overtime rates tables
[117] The insertion of overtime rates tables for casual employees into those awards which
contain hourly rates of pay schedules will be dealt with in due course.
VICE PRESIDENT
Printed by authority of the Commonwealth Government Printer
PR723769
THE FAIR WORK THE ISSION THE
