1
Fair Work Act 2009
s.157–Application to vary or revoke a modern award
Restaurant & Catering Industrial
(AM2021/58)
Restaurants
JUSTICE ROSS, PRESIDENT
DEPUTY PRESIDENT CLANCY
COMMISSIONER BISSETT MELBOURNE, 14 JULY 2021
Restaurant Industry Award 2020 – application to vary a modern award – award flexibility –
exemption rate – simplified classification structure – substitute allowance – provisional views
confirmed – draft determinations issued.
1. Background
[1] This decision concerns an application by Restaurant and Catering Industrial (RCI) (the
Application) to vary the Restaurant Industry Award 2020 (the Restaurant Award). The
background to the Application is set out in a Statement published on 3 June 2021.
[2] For present purposes, we need only note that the Application arose out of a process
which was initiated by correspondence from the Minister for Industrial Relations in which the
Minister expressed the Government’s view that ‘… in the extraordinary circumstances that
have been caused by the COVID pandemic … it would be in Australia’s economic best
interest for the Fair Work Commission to use its powers under s.157(3)(a) … to undertake a
process to ensure several priority modern awards in sectors hardest hit by the pandemic be
amended.’1 The Restaurant Award was among the awards identified by the Minister as
priority awards.
[3] The Application seeks to vary the Restaurant Award by including 2 new schedules,
Schedule R and Schedule AA, in order to assist employers and employees recover from the
COVID-19 pandemic. Proposed Schedule R includes:
access to a simplified classification structure (which is set out in Schedule AA)
a ‘substitute’ allowance in substitution for certain work and expense related
allowances, and
1 Letter from Minister for Industrial Relations, 9 December 2020.
[2021] FWCFB 4149
DECISION
E AUSTRALIA FairWork Commission
https://www.fwc.gov.au/documents/sites/award-flexibility-hospitality-retail/correspondence/am2020-103-correspondence-ag-to-justice-ross-2020-12-09.pdf
https://www.fwc.gov.au/documents/decisionssigned/html/2021fwcfb3222.htm
https://www.fwc.gov.au/documents/sites/award-flexibility-hospitality-retail/applications/am2021-58-application-rci.pdf
[2021] FWCFB 4149
2
exemption rates.
[4] The proposed Schedule R incorporates a number of safeguards, which we set out later.
[5] Following a number of private conferences, an amended draft determination was filed
on 31 May 2021. RCI also filed a submission in support of the Application and a number of
witness statements.
[6] On 3 June 2021 we issued a Statement2 (June Statement) setting out our provisional
view that the Restaurant Award be varied in the terms set out in the draft determination at
Attachment A to that Statement. Interested parties were directed to file submissions and
evidence in response to our provisional view.
[7] In accordance with the directions, we received the following:
correspondence from NSW Business Chamber and Australian Business Industrial
Submission from the United Workers Union (UWU), attaching the witness
statement of Ms Angela Knox, and
Submission in reply from RCI.
[8] In its correspondence, NSW Business Chamber and Australian Business Industrial
confirmed that it endorsed the proposal to vary the Restaurant Award as set out in Attachment
A to the June Statement.
[9] In a Statement3 issued on 5 July 2021 (July Statement), we informed the parties that
updated information notes regarding the COVID-19 situation had been published, and that an
updated note regarding the Accommodation and food services industries would be published
concurrently with the Statement:
Information note – COVID-19 situation update
Information note – Government responses to COVID-19 pandemic
Information note – Accommodation and food services
[10] Any party who wished to provide comments on the updated information notes was
directed to file a short written submission by 4.00pm on 7 July 2021. Submissions were
received from:
UWU
RCI
[11] The UWU submits that the updated information notes ‘describe a situation broadly
consistent with that depicted in the submissions filed by the UWU in this matter’.
2 [2021] FWCFB 3222.
3 [2021] FWCFB 3876.
https://www.fwc.gov.au/documents/decisionssigned/html/pdf/2021fwcfb3876.pdf
https://www.fwc.gov.au/documents/decisionssigned/html/2021fwcfb3222.htm
https://www.fwc.gov.au/documents/sites/award-flexibility-hospitality-retail/submissions/am202158-sub-rci-070621.pdf
https://www.fwc.gov.au/documents/sites/award-flexibility-hospitality-retail/submissions/am202158-sub-uwu-070621.pdf
https://www.fwc.gov.au/documents/sites/award-flexibility-hospitality-retail/background/am2020103-infonote-accom-food-services-2-050721.pdf
https://www.fwc.gov.au/documents/documents/resources/covid-19-information/information-note-government-responses-covid-19-2021-07-02.pdf
https://www.fwc.gov.au/documents/documents/resources/covid-19-information/information-note-covid-19-situation-update-2021-07-02.pdf
https://www.fwc.gov.au/documents/sites/award-flexibility-hospitality-retail/submissions/am202158-sub-inreply-rci-020721.pdf
https://www.fwc.gov.au/documents/sites/award-flexibility-hospitality-retail/submissions/am202158-outline-submissions-290621.pdf
https://www.fwc.gov.au/documents/sites/award-flexibility-hospitality-retail/submissions/am202158-sub-abinswbc-290621.pdf
https://www.fwc.gov.au/documents/decisionssigned/html/2021fwcfb3222.htm
https://www.fwc.gov.au/sites/award-flexibility-hospitality-retail/applications/am202158-appendix-ws-rci-310521.pdf
https://www.fwc.gov.au/sites/award-flexibility-hospitality-retail/applications/am202158-sub-amended-app-rci-310521.pdf
https://www.fwc.gov.au/sites/award-flexibility-hospitality-retail/applications/am202158-amended-draft-det-rci-310521.pdf
[2021] FWCFB 4149
3
[12] In response to the updated information notes RCI submits:
‘The updated information note also provided recent data which demonstrated that from
December 2020 to June 2021, the accommodation and food services when compared to all
industries were disproportionately affected in their change of revenue. In addition, the changes
in operating hours due to COVID-19 reaffirmed the disproportionate impact of COVID-19
with fewer than 10% of businesses in Accommodation and food services were ‘operating as
normal’ between mid-June and mid-September 2020.
The correlation between the economic recovery with the easing of restrictions is highlighted in
the updated information note which also found that during the second wave of new cases in
Victoria, the turnover recovery stalled with ongoing restrictions from the subsequent waves of
community transmission.
In June 2021, the information note stated that a higher proportion of businesses in
Accommodation and food service would be in a difficult or very difficult to meet financial
commitments over the next 3 months at 25% which compared with 16% for all industries.
There is also a lower proportion who indicated that it would be “easy” or “very easy” to meet
financial commitments over the next 3 months with 28% for accommodation and food
services when compared to 41% for all industries.
The latest data in accordance with the updated information note recognised that up until the
week ending 5 June 2021, the number of jobs across all industries was 2.3% higher than mid-
March 2020 levels which is contrasted with Accommodation and food services where it was
still 12.3% below the mid-March levels.
Overall, the updated information note reiterates the views of RCI that the accommodation and
food services industry continue to be disproportionately affected by the pandemic. The
ongoing variants of COVID-19 resulting in further government lockdowns and restrictions
continues to impede the economic recovery and exacerbate the two-speed economy that is
occurring in Australia. As new variants of COVID-19 spread in the community, the
Accommodation and food services sector continue to be the severely affected.’
[13] We deal later with the impact of the COVID-19 pandemic on the restaurant sector.
[14] In the June Statement, we indicated that absent a specific request for an oral hearing
the matter would be determined on the papers. No party requested an oral hearing and nor did
any party express a desire to cross-examine any of the witnesses. Accordingly, we will
proceed to determine the matter on the papers.
2. The Context
[15] As noted in the 2020-21 Annual Wage Review decision (the AWR decision), the
COVID-19 pandemic cast a large shadow over 2020. While predominantly a public health
issue, federal and state government-imposed restrictions to contain the spread of the virus had
a profound economic impact.4 The restrictions included travel restrictions (both international
and domestic) and social distancing rules. The social and economic consequences of these
measures were unprecedented and led to business closures and job losses. All but ‘essential
4 See Fair Work Commission (2020), Information note―Government responses to COVID-19 pandemic, 16 June.
https://www.fwc.gov.au/documents/documents/resources/covid-19-information/information-note-government-responses-covid-19-2020-06-16.pdf
[2021] FWCFB 4149
4
workers’ were forced to stop work or modify their work arrangements. These actions
significantly reduced domestic activity and resulted in ‘a large and near-simultaneous
contraction across the global economy.’5
[16] The Restaurant Award has been varied a number of times during the course of the
pandemic to provide a range of flexibilities designed to assist employees covered by the
Award to retain staff and remain in business. The last COVID-19 schedule expired on 27
September 2020. A list of relevant variations is set out below:
COVID-19 Award Flexibility Schedule [2021] FWCFB 1621; Applications to vary
Schedule X PR728081
COVID-19 Award Flexibility Schedules [2020] FWCFB 5137; PR723052
Applications to vary Schedule X [2020] FWCFB 3444; [2020] FWCFB 3490;
PR720774
Application to vary the Restaurant Industry Award 2020 [2020] FWCFB 3401;
Restaurant and Catering Industry Association T/A Restaurant and Catering
Industry Association PR720589
Variation of awards on the initiative of the Commission [2020] FWCFB 1837;
PR718143
Application to vary the Restaurant Industry Award 2010 [2020] FWCFB 1741;
PR717978
[17] The Australian economy has recovered to a greater extent and more quickly than
anticipated.
[18] The Minutes of the Monetary Policy Meeting of the Reserve Bank Board on 4 May
2021 summarise how well the domestic economy has improved recently:
‘… the Australian economy was transitioning from recovery to expansion earlier and with more
momentum than previously anticipated. The unique features of the pandemic and the policy
response had seen the economy rebound much faster than in previous downturns. GDP was
expected to have returned to its pre-pandemic level in the March quarter and there were more
people employed in March than before the onset of the pandemic.’6
[19] The RBA’s Statement on Monetary Policy for May 2021 commented that ‘GDP
growth in the December quarter 2020 was stronger than expected and the recovery in activity
and the labour market again exceeded expectations in the March quarter’.7
[20] However, the pandemic is not over and risks remain. As noted in the AWR decision:
‘While the economic recovery is well underway and the overall outlook is much more positive
than it was last year, we acknowledge the risk of domestic outbreaks and on-going disruptions
to other major economies. COVID-19 outbreaks necessitating further containment measures
remain a significant risk and, as the Commonwealth submits ‘even localised outbreaks could
5 [2020] FWCFB 3500 at [24]; RBA (2020), Statement on Monetary Policy, May, p. 1.
6 RBA (2021), Minutes of the Monetary Policy Meeting of the Reserve Bank Board, 4 May.
7 RBA (2021), Statement on Monetary Policy, May, p. 71.
https://www.fwc.gov.au/documents/awardsandorders/html/pr717978.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2020fwcfb1741.htm
https://www.fwc.gov.au/documents/awardsandorders/html/pr718143.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2020fwcfb1837.htm
https://www.fwc.gov.au/documents/awardsandorders/html/pr720589.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2020fwcfb3401.htm
https://www.fwc.gov.au/documents/awardsandorders/html/pr720774.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2020fwcfb3490.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2020fwcfb3444.htm
https://www.fwc.gov.au/documents/awardsandorders/html/pr723052.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2020fwcfb5137.htm
https://www.fwc.gov.au/documents/awardsandorders/html/pr728081.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2021fwcfb1621.htm
[2021] FWCFB 4149
5
have an impact on consumer and business confidence weighing on consumption and
investment’.8
[21] The AWR decision also observed that the pattern in 2021 in respect to further cases of
community transmission has seen comparatively brief lockdown periods comprised of stay-at-
home orders generally localised to particular regions that have limited the reasons for people
to leave their homes. Broadly, it has meant that only work deemed ‘essential’ has been
allowed to operate during these periods. These restrictions imposed in each state and territory,
and nationally, have been documented in the Commission’s information note throughout the
pandemic.9 Chart 1 shows the length of lockdown since Victoria’s second wave of COVID-19
from the middle of 2020.
Chart 1: State and Territory Government lockdowns by severity, 1 July 2020 to 5 July
2021, duration in days
Source: Fair Work Commission (2021), Information note - government responses to COVID-19 pandemic, updated 2 July.
Note: Lockdown duration commences from when restrictions were first increased. High severity means very limited reasons
to leave home. Medium severity involves some easing of restrictions with the ability to gather in limited numbers in homes,
public or venues. Low severity involves relatively little restrictions but still more than before the lockdown commenced. A
lockdown is considered to be finished when restrictions return to the same level or are comparable to pre-lockdown levels.
Lockdowns are defined as those with restrictions that are considered high severity.
The second Victorian lockdown started on 20 June 2020, but only data from 1 July 2020 are shown. However, the duration
includes the days prior to 1 July 2020.
[22] Chart 1 shows the length of lockdowns since Victoria’s second wave of COVID-19
from the middle of 2020. The lockdowns have been temporary and have included:10
8 Australian Government submission, 26 March 2021 at paras 4, 53.
9 Fair Work Commission (2021), Information note – government responses to COVID-19 pandemic, updated 11 June.
10 Fair Work Commission (2021), Information note – government responses to COVID-19 pandemic, updated 12 July: Fair
Work Commission (2021), Information note – COVID-19 situation update, updated 12 July.
VIC lockdown 2 (VIC) 169 SA lockdown (SA) 27 Northern beaches (NSW) 95 Greater Brisbane 1 (QLD) 13 Perth and Peel Region 1 (WA) 14
VIC lockdown 3 (VIC) 39 Greater Brisbane 2 (QLD) 17 Perth and Peel Region 2 (WA) 21 VIC lockdown 4 (VIC) 41 Sydney lockdown 2 (NSW) 12 Perth and Peel Region 3 (WA) 8 Darwin and Palmerston (NT) 8
South East Queensland (QLD) Alice Springs (NT) 01-Jul-20 29-Jul-20 26-Aug-20 Low 23-Sep-20 21-Oct-20 18-Nov-20 16-Dec-20 Medium 13-Jan-21 10-Feb-21 10-Mar-21 High 07-Apr-21 05-May-21 02-Jun-21 6 5 30-Jun-21
https://www.fwc.gov.au/documents/documents/resources/covid-19-information/information-note-covid-19-situation-update-2021-07-12.pdf
https://www.fwc.gov.au/documents/documents/resources/covid-19-information/information-note-government-responses-covid-19-2021-07-12.pdf
https://www.fwc.gov.au/documents/documents/resources/covid-19-information/information-note-government-responses-covid-19-2021-06-11.pdf
[2021] FWCFB 4149
6
Adelaide in mid-November 2020 (3 days);
Sydney’s Northern Beaches in late December 2020, with fewer restrictions for the
rest of Greater Sydney (including Wollongong, Central Coast, and Blue Mountains)
that lasted for several weeks, and in May 2021 (4 days) and in late June/early July
2021 (19 days and ongoing);
Brisbane in January and late March/early April 2021 (both for 3 days) and South
East Queensland in late June/early July 2021 (4 days);
Perth and surrounding regions in late January/early February (5 days) late April
2021 (3 days) and late June/early July 2021 (4 days);
Victoria in mid-February 2021 (5 days) and in late May/early June 2021 (14 days),
with restrictions easing in regional Victoria after 1 week; and
Darwin, Palmerston and certain rural regions in the Northern Territory in late
June/early July 2021 (6 days) and Alice Springs in late June/early July 2021 (3
days).
[23] States and territories have also re-imposed border restrictions during these times.
[24] Based on the broadly consistent pattern following Victoria’s second wave, the AWR
decision concluded that ‘future lockdowns are likely to be of limited duration and localised,
with most states locking down regions rather than the whole state’.11
[25] These lockdowns were expected to adversely impact a number of industries, including
hospitality (other than those providing take away food services).12 The increase awarded from
the 2020–21 Annual Wage Review was delayed until 1 November 2021 for modern awards
mapped to the Accommodation and food services industries including the Restaurant
Award.13
[26] In 2021, restrictions have since been re-imposed at different times during city or state-
wide lockdowns. At the beginning of July 2021, restrictions were in place across most states
and territories. For example, lockdowns in Greater Sydney and surrounds, as well as parts of
Queensland, Western Australia and the Northern Territory mean that hospitality venues are
closed except for providing takeaway services, while across Victoria and South Australia
there were density and capacity limits.
[27] Despite the easing of restrictions, the number of employee jobs in the Accommodation
and food services sector has not yet returned to the level recorded before the onset of the
pandemic. This can be measured using the data released by the ABS that provide weekly
statistics on employee jobs and wages using payroll data from the Australian Taxation Office.
[28] Employee jobs in Accommodation and food services fell 35 per cent in only 4 weeks
(between 14 March and 11 April 2020), a larger fall than any other industry. While the
11 Annual Wage Review 2020-21 [2021] FWCFB 3500 at [52].
12 [2021] FWCFB 3500 at [247]
13 [2021] FWCFB 3500 at [288]
[2021] FWCFB 4149
7
ensuing rebound was longer than the initial fall, more than half of the number of employee
jobs lost in those 4 weeks had returned by early July 2020. However, this was interrupted by
restrictions being re-imposed in Victoria. Between early July and mid-November 2020, the
number of employee jobs was relatively steady in the industry. With the re-opening of
hospitality in Victoria in the last week of October, this increased up to mid-December 2020.14
[29] The latest data, to the week ending 5 June 2021, show that the number of jobs across
all industries is 2.3 per cent higher than that reported in mid-March 2020. However, for
Accommodation and food services, it is 12.3 per cent below the level at 14 March 2020 and
12.0 per cent below for Food and beverage services.
[30] Total wages had also declined in Accommodation and food services by a relatively
large percentage (–10.9 per cent) compared with an overall increase of 2.1 per cent across all
industries (as shown in Chart 2).
Chart 2: Change in employee jobs and total wages between 14 March and 5 June 2021
Source: ABS, Weekly Payroll Jobs and Wages in Australia, Week ending 5 June 2021.
[31] In June 2021, a higher proportion of businesses in Accommodation and food services
indicated that it would be difficult or very difficult to meet financial commitments over the
next 3 months (25 per cent) compared with the average across all industries (16 per cent), and
a lower proportion indicated that it would be easy, or very easy to meet financial
commitments over the next 3 months (28 per cent compared with 41 per cent) (Chart 3).
14 ABS, Weekly Payroll Jobs and Wages in Australia, Week ending 8 May 2021.
60
70
80
90
100
110
Index (14 March 2020 = 100)
Accommodation & food services Food and Beverage Services All industries
[2021] FWCFB 4149
8
Chart 3: Business ability to meet financial commitments over the next three months,
Accommodation and food services and all industries, June 2021
Note: These proportions exclude responses that did not know their change in operating expenses. The reference week is 9–16
June. Source: ABS, Business Indicators, Business Impacts of COVID-19, June 2021.
[32] The UWU acknowledges that the impact of the pandemic on the sector of the
hospitality industry covered by the Restaurant Award ‘was significant’ but submits that ‘the
industry is recovering’. The UWU relies on aspects of the AWR decision15 and the fact that
the Annual Wage Review increase in respect of the Restaurant Award was delayed by 6
months in 2020 and by 3 months in 2021.
[33] The UWU submitted a statement made by Associate Professor Angela Knox from the
University of Sydney Business School containing a report prepared by Professor Knox in
relation the hospitality industry (the Knox Report). The Knox Report was commissioned by
the UWU in relation to the priority modern awards and Commission review process generally,
and not specifically in relation to this Application.
[34] The UWU submits that the Commission ‘can and should take general regard of the
report, taking into account the fact that it was not prepared specifically in relation to this
application.’16
[35] The UWU notes that the Knox Report states:
‘While the onset of the COVID crisis and its effects have been significant, both here and abroad,
Australia’s economy appears to be bouncing back at aggregate level (Borland 2021). Within
Australia’s hospitality industry, similar trends are apparent, although slightly more tempered.’
15 [2021] FWCFB 3500.
16 UWU submissions, 19 June 2021 at [20].
0
5
10
15
20
25
30
35
40
Very difficult Difficult Neither
difficult nor
easy
Easy Very easy No financial
commitments
over the next
three months
0
5
10
15
20
25
30
35
40
Very difficult Difficult Neither
difficult nor
easy
Easy Very easy No financial
commitments
over the next
three months
All Industries
Accommodation and food services
[2021] FWCFB 4149
9
[36] The UWU submits that on this basis, the Commission should take the view that:17
the circumstances facing the sector of the industry covered by the Restaurant Award
are different than they were at the time of the Minister’s Letter and at the time the
Commission commenced the process to review the Restaurant Award
the hospitality industry is not facing as acute an economic crisis as may have
appeared to exist at the time of the Minister’s Letter and at the time the Commission
commenced the process to review the Restaurant Award, and
while the speed and circumstances of the economic recovery in the hospitality
industry is inferior to that of some other industries (and was categorized by
Professor Borland as ‘lagging’), the hospitality industry is recovering from the
economic effects of the pandemic.
[37] The UWU also drew our attention to the following passage from the Knox Report:
‘Further degradation of wages and/or career progression opportunities is likely to heighten
recruitment and retention problems and exacerbate labour shortages, proving
counterproductive for hospitality businesses. Instead, evidence indicates that efforts should be
directed towards increasing the quality of hospitality jobs, including pay and professional
opportunities, to increase productivity, stimulate economic growth and spur
competitiveness.’18
[38] The UWU submits that the proper approach to be taken to the Application is a
‘cautious one’ and that in respect of the COVID pandemic, the relevant environment is no
longer ‘extreme’; the Commission should not approach the Application as though there are
‘unique’ circumstances.19
[39] It is convenient to deal with the Knox Report here.
[40] As noted by the UWU, the Knox Report was not specifically commissioned in
response to the Application and it does not address the terms of the Application. This is a
significant limitation and impacts the relevance of the report to the matter before us. The
summary of the Knox Report states:
‘A review of academic research was undertaken in response to the ‘Distressed’ Industries
Award Reviews, specifically in relation to the hospitality industry. The evidence highlights the
predominance of ‘bad jobs’ in Australia’s hospitality industry, marked by low pay, limited
career progression opportunities, long working hours and lack of job security. Typically, these
characteristics contribute to the recruitment and retention problems that blight the industry.
Although the onset of COVID-19 lockdowns had a severe impact on employment in the
hospitality industry, the subsequent recovery has reignited job vacancies; with labour shortages
intensified by COVID-related disruptions to labour supply. Any proposed changes to
hospitality awards would need to be assessed in this context. An intensification of ‘bad jobs’
would compound labour shortages and recruitment and retention problems.
17 UWU submissions, 19 June 2021 at [22].
18 UWU submissions, 29 June 2021 at [24], citing Knox Report, p 2.
19 UWU submission, 29 June 2021 at [25]-[28]].
[2021] FWCFB 4149
10
Research evidence indicates that a reduction in penalty rates, including via ‘loaded rates’, is
likely to compound the industry’s poor-quality jobs by reducing wages among some of the
countries lowest paid workers. There is no evidence to suggest that the costs borne by workers
would be offset by increased rates of employment. Rate reductions have also been linked to a
reduced willingness to work during non-standard times and increased turnover among
hospitality workers. Although simplification of penalty rates has been put forward as a means
of solving the industry’s compliance problems, existing evidence indicates that simplification
has not only failed to improve compliance it has contributed to labour shortages. Additionally,
research examining broad-banding highlights the importance of providing workers with
additional pay to compensate for resultant increases in task, skill and workload demands, and
its effect on progression opportunities.
Further degradation of wages and/or career progression opportunities is likely to heighten
recruitment and retention problems and exacerbate labour shortages, proving
counterproductive for hospitality businesses. Instead, evidence indicates that efforts should be
directed towards increasing the quality of hospitality jobs, including pay and progression
opportunities, to increase productivity, stimulate economic growth and spur competitiveness.
Nations within the developed world, including the US and UK, are now turning their attention
to improving job quality to fuel the job creation that will drive economic recovery from the
COVID crisis.’20
[41] While the conclusions advanced by the Knox Report may well be soundly based, they
do not assist our consideration of this Application.
[42] Two points may be made in this regard:
1. The proposition that:
‘a reduction in penalty rates, including via ‘loaded rates’, is likely to compound the
industry’s poor-quality jobs by reducing wages among some of the countries lowest
paid workers’,
is not relevant to the present Application given the nature of the exemption rates
proposal and the range of safeguards provided. In particular, disputes about the
operation of Schedule R can be dealt with by the Commission by arbitration. In
arbitration the Commission can, among other things, require an employer to pay an
employee the difference between what they were paid under Schedule R and what
they would otherwise have received under the Award if the Commission determines
that any agreement entered into was unfair for an employee.
2. The proposition that:
‘research examining broad-banding highlights the importance of providing workers
with additional pay to compensate for resultant increases in task, skill and workload
demands, and its effect on progression opportunities. Further degradation of wages
and/or career progression opportunities is likely to heighten recruitment and retention
20 Knox Report, p 2.
[2021] FWCFB 4149
11
problems and exacerbate labour shortages, proving counterproductive for hospitality
businesses’,21
does not address the broad banding proposal before us. As we mention later, it is
common ground that the proposed broad banding:
would not result in a reduction in take home pay for any employee provided
employees are classified correctly, in accordance with the new classification
structure in Schedule AA, and
would result in an increase in take home pay for some workers who are
classified in accordance with the new structure.
[43] As mentioned earlier, the Knox Report also deals with the impact of the pandemic on
the hospitality sector, expressing the view that Australia’s economy recovery ‘appears to be
bouncing back at the aggregate level’ and that similar trends are apparent in the hospitality
sector ‘although slightly more tempered’.
[44] In our view, the most recent data does not support Dr Knox’s opinion regarding the
extent of the ongoing impact of the pandemic on the hospitality sector. We agree with RCI
that the Accommodation and food services sector continues to be disproportionately affected
by the pandemic. Further, the likely future pattern of lockdowns will substantially affect the
sector in those areas subject to lockdown.
3. Consideration
[45] We now turn to consider the merits of the Application.
[46] It is convenient to first deal with some general submissions advanced by the UWU. As
mentioned earlier, the UWU submits that the Commission should take a ‘cautious’ approach
to the Application and that the Commission should adopt an approach which ensures no
reduction in take-home pay:
‘Reductions in take home pay would not assist this industry to continue to recover from the
economic effect of the pandemic – in fact, any such measure would be counter-productive, and
contribute to the specific challenge facing the industry at present – attracting and retaining
staff.’22
[47] We agree that a cautious approach is warranted. The changes proposed in the
Application are, in the context of this Award, somewhat novel. We also accept that reductions
in take home pay would serve to exacerbate the current challenges facing the hospitality
sector in relation to the attraction and retention of staff.
[48] The UWU also contends that the context in which the Application is made is ‘no
longer extreme or unusual’ and:
21 Knox Report, p 2.
22 UWU submission, 29 June 2021 at [27].
[2021] FWCFB 4149
12
‘… to the extent FWC has in the past eighteen months approached applications to vary modern
awards having regard to the “unique” circumstances of the pandemic, it should not take that
approach in this matter.’23 [Footnotes omitted]
[49] As mentioned earlier, we acknowledge that the Australian economy has recovered to a
greater extent and more quickly than anticipated; but the pandemic is not over and risks
remain. Future lockdowns are likely albeit of limited duration compared to 2020 and
localised, with most states locking down regions rather than the whole state. NSW is presently
battling a significant outbreak of the delta COVID-19 variant.
[50] The lockdowns likely to be imposed to contain the spread of the virus are likely to
adversely impact a number of industries including that part of the hospitality sector covered
by the Restaurant Award.
[51] We accept that the circumstances presently facing the Restaurant sector are not as dire
as in the earlier stages of the pandemic; but the sector continues to face real challenges. Such
circumstances weigh in favour of award variations which promote flexible modern work
practices.
[52] Managed flexibility is an appropriate response in the current circumstances – the
introduction of flexibilities within a framework of safeguards directed at ensuring employees
do not suffer a reduction in their take home pay.
[53] Before turning to 3 three key elements of the proposed Schedule R, we note that a
number of safeguards apply to each element. In summary the safeguards are as follows:
The proposed Schedule R is expressed to operate for a limited period (clause R.1).
The exemption rate can only be accessed by agreement between an employer and an
individual employee and any such agreement must be recorded in writing.
The substitute allowance can only be accessed by agreement between an individual
employee and an employer; or by agreement with 75% of affected employees.
These agreements must also be recorded in writing.
An agreement can be terminated by giving 4 weeks’ notice in writing.
An employer must consult with affected employees and their representatives (if
any) prior to initiating any of the provisions in proposed Schedule R.
Disputes about the operation of Schedule R can be dealt with by the Commission by
arbitration. In arbitrating a dispute the Commission may:
o terminate an agreement made under Schedule R if it determines that it
was not entered into genuinely
23 UWU submission, 29 June 2021 at [26].
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13
o terminate an agreement made under Schedule R if it determines that the
employer failed to consult as required
o require an employer to pay an employee the difference between what
they were paid under the Schedule and what they would otherwise have
received under the Award if the Commission determines that any
agreement entered into was unfair for an employee, and
o terminate an agreement for an employee if the Commission determines
that any agreement entered into was unfair for that employee.
[54] We now turn to the key elements of proposed schedules.
3.1 The Simplified Classification Structure
[55] The simplified classification structure and classification definitions are set out in
proposed Schedule AA. Pursuant to clause R.4, an employer can elect to classify all relevant
employees in accordance with the Schedule AA.
[56] The essence of the proposed simplified classification structure is to ‘broadband’ part
of the classification structure, namely certain grades in the food and beverage stream and in
the kitchen stream.. It is common ground that the proposed variation would:
not result in a reduction of take home pay for any employee provided employees are
classified correctly, in accordance with the new classification structure, and
result in an increase in take home pay for some workers who are classified in
accordance with the new structure.
[57] RCI submits that the proposal operates to broad band certain work tasks that are
currently classified into separate classifications and streams:
‘this broad banding seeks to reflect the practical way employees often work especially in cafes
and in smaller businesses covered by the Restaurant Award’24
[58] RCI also submits that the simplified classification structure will assist employers
during the recovery from the pandemic because:
‘(a) It removes the complexity to classify employees by reducing 6 arbitrary and overlapping
levels to 3 easy-to-understand tiers.
(b) It consolidates the restaurant/café worker by combining the Kitchen Stream and Food and
Beverage Attendant Stream, providing confidence and assurance that employees are being
classified correctly even when they are required to help out with broader general duties; which
is an increasingly common feature of the industry through the Pandemic and the recovery.
(c) Promotes multi-skilling and training of employees to be able to execute a broader range of
tasks that are currently found in other streams.
24 RCI submission, 31 May 2021 at [29].
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(d) Provides flexibility for employers and increases productivity levels by employees who are
multi-skilled.
(e) It reflects the manner in which many smaller businesses in the industry work in practice.’
[59] The UWU identified 2 concerns with the proposal:25
the combination of multiple classifications results in a requirement that employees
‘multi-skill’ in order to perform those roles; the effect of multi-skilling may be such
that the combination and variation of multiple skill sets results in an increase in the
work-value associated with the work, and
the increase of the level 4 rate to the level 5 rate might operate as a disincentive to
promote employees from level 3.
[60] The first point advanced is merely speculative and in the event that there is an increase
in work value as suggested by the UWU, it may make an application to increase the relevant
minimum wages, having regard to the terms of ss.157(2) and (2A).
[61] In relation to the second point, Note 1 under the definition of ‘appropriate level of
training’ in the Restaurant Award currently stipulates that:
‘The minimum classification level for an employee who has completed AQF Certificate III or
higher qualifications relevant to the classification in which they are employed and who makes
use of skills and knowledge derived from Certificate III competencies relevant to the work
undertaken is Level 4.’
[62] In short, the Award already provides that for promotion to Level 4 when an employee
has completed an AQF Certificate III or higher qualification and makes use of those skills and
knowledge. Any dispute about whether an employee has been correctly classified can be dealt
under the dispute resolution procedure in clause 34 of the Restaurant Award.
[63] In response to Commission’s provisional view to grant the variation, the UWU
submitted the following further protective measures should be adopted:26
‘A committee should be formed to monitor the operation of this and any other variation FWC is
minded to make in relation to this application. The committee should comprise at least two
representatives nominated by RCI, and two nominated by UWU (and such additional
representatives as these two parties may agree to). The Committee should meet bi-monthly and
consider matters relevant to whether this proposal (and others contemplated by this
application) are working fairly, efficiently and appropriately. The formation of this committee
need not be a clause of the award, but FWC should recommend that it be constituted and
function along the lines suggested in any decision it makes about this matter.
The review in relation to the operation of this variation to the Award (and others, if any)
should commence no later than nine months after the commencement of its operation. The
25 UWU submission, 29 June 2021 at [31].
26 UWU submission, 29 June 2021 at [34].
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review should consider, among other things, whether the concerns identified by UWU
members and outlined at [31] of this Outline of Submissions have come to fruition.’
[64] In its reply submission RCI consents to the ‘further protective measures’ proposed by
the UWU:
‘Subject to drafting that the Fair Work Commission is satisfied with, this represents a practical
proposal and will provide a new plenary safeguard that should materially assuage any concerns
about “caution” or any mis-use of the proposed Schedule R.
The clause can be considered as permissible pursuant to section 139 (1) (j).
RCI consents to such a clause being including in Schedule R is willing and able to engage in
the committee and review process as noted in paragraph [34] of the submission by the
UWU.’27
[65] We deal with the UWU’s proposed monitoring committee and the review in Section 4,
Next Steps.
3.2 The Substitute Allowance Proposal
[66] The substitute allowance proposal is set out at clause R.5 of proposed Schedule R as
follows:
R.5 Substitute Allowance
Subject to this clause:
R.5.1 an employer and an employee may enter into an agreement to pay the employee a
substitute allowance below (the Substitute Allowance):
Column 1
Employee level
Column 2
Allowance per hour ($)
$
Introductory 1.60
Level 1 1.60
Level 2 1.02
Level 3 0.98
Level 4 0.90
Level 5 1.01
Level 6 1.08
27 RCI submission, 2 July 2021 at [17]-[19].
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R.5.2 an employer and at least 75% of the employees in the workplace concerned may agree
to pay all of the employees in the workplace a Substitute Allowance below:
Column 1
Employee level
Column 2
Allowance per hour ($)
$
Introductory 1.60
Level 1 1.60
Level 2 1.02
Level 3 0.98
Level 4 0.90
Level 5 1.01
Level 6 1.08
R.5.3 Where an agreement to pay the Substitute Allowance has been made in accordance
with clause R.5, the following clauses of this award shall not apply:
(a) clauses 16.5 and 16.6 (meal break);
(b) clause 21.2 (meal allowance);
(c) clause 21.3 (split shift allowance);
(d) clause 21.4 (tool and equipment allowance);
(e) clause 21.5 (special clothing allowance); and
(f) clause 21.6 (distance work allowance).
R.5.4 The Substitute Allowance shall be paid for all purposes of this award.
R.5.5 The Substitute Allowance is adjusted in accordance with increases to wages.
[67] The proposed substitute allowance provides for the payment of a single all-purpose
payment per hour worked in substitution for several work and expense related allowances
(specified in clause R 5.3). The proposal has the following features:
it operates by agreement with an individual employee or to all the employees in the
workplace as a whole on a 75% vote of employees
any such agreement must be reduced to writing
any such agreement can be unilaterally terminated by and employer or an employee
on 4 weeks’ notice with an individual, or where the agreement applies to all the
employees in a workplace by a 50% plus one vote of employees
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while subject to an agreement, the employee must be paid the substitute allowance
for each hour worked and the substitute allowance is paid for all purposes, and
the quantum of the substitute allowance is different for different classifications
based on the modelling used by RCI and the higher prevalence of paying the
allowances that are substituted at the lower classification levels in the industry.
[68] The term ‘all purposes’ is not a defined term in the Restaurant Award. However, the
following definition was inserted into relevant modern awards during the 4 yearly review of
modern awards28 and this applies to Schedule R:
‘all purposes means the payment will be included in the rate of pay of an employee who is
entitled to the allowance, when calculating any penalties or loadings or payment while they
are on leave’
[69] In relation to the differences in the quantum of the substitute allowance at different
classification levels, RCI filed a further submission (on 2 June 2021) outlining the rationale
for the calculation of the substitute allowance. In that submission RCI states:
‘… that some 408,873 hours of rostered work were examined.
This data set was broken down by employment status and classification level.
While potentially counter intuitive at first glance the data set when broken down showed that
employees at the lower levels of the classification structure had a higher incidence of receiving
the allowances being substituted than employees at the higher classification levels.
This was in part due to the fact that employees on lower classification levels triggered the
payment of more allowances than employees on higher classification levels. Also, the
prevalence of casual employees as a proportion of the hours examined also impacted the
calculation of the rate. As there are far more casual employees on levels 1 & 2, their allowance
rate was found to be higher.
This trend reversed when coming to levels 5 and 6 of the classification structure which might
have been more expected.
Accordingly, to create an outcome where employees were not worse off the substitute
allowance needed to be higher for level 1 descending to level 4 and then ascending for level 5
and 6.’29
[70] This issue is also canvassed in the witness statement of Mr Tom Green dated 31 May
2021.
[71] In their submission dated 31 May 2021, RCI submits that the substitute allowance will
assist employers in the industry during the recovery from the pandemic because:
28 [2015] FWCFB 4658
29 RCI submission, 2 June 2021 at [9]-[14].
[2021] FWCFB 4149
18
it encourages employment with a higher headline rate of pay to attract labour during
the recruitment process when the industry is dealing with both demand and supply
side challenges during the recovery
it reduces the compliance costs and administrative burden borne by employers from
calculating each allowance separately for each employee
it allows for a more consistent and better estimation about the cost of wages for
cashflow purposes rather than ad hoc allowances that may or may not apply in a
given week
it promotes compliance by allowing for a single reference point as a substitute
allowance, thereby reducing the costs of compliance for employers who already
face increasing compliance measures from Pandemic related government directives
and restrictions, and
it increases ease of employment by providing peace of mind and assurance for
compliance purposes, allowing employers to focus on other functions in the
business.
[72] We note that s.149 of the Fair Work Act 2009 (Cth) (the Act) provides for the
automatic variation of allowances to coincide with a variation in modern award wages:
‘If a modern award includes allowances that the FWC considers are of a kind that should be
varied when wage rates in the award are varied, the award must include terms providing for the
automatic variation of those allowances when wage rates in the award are varied.’
[73] In the RCI submission dated 2 June 2021, RCI notes that the substitute allowance
should be ‘adjusted to reflect the change in minimum award rates set down by the
Commission for the 2021/22 financial year’. A term providing for the adjustment of the
substitute allowance was included in the draft determination attached to the June Statement.
We address this issue later in Section 4, Next Steps.
[74] The UWU acknowledges that for some employees the adoption of the substitute
allowance proposal would result in a pay increase ‘because it would be paid for all purposes
and in all circumstances, including in circumstances where under the award, allowances in
lieu of which it is paid might not have applied to a particular employee.’30
[75] While the extent to which an employee receiving the allowance is better off is difficult
to predict, the UWU notes that the value of the allowance could be as much as $60.80 per
week (or more if overtime hours are worked).
[76] Despite the various safeguards attached to this proposal, the UWU submits that its
members have identified the follows concerns with this proposal:
‘a. Much of the case in favor of this provision made by RCI is that it will improve compliance
with the award. Enhanced compliance with the award may well be a factor in favor of its
30 UWU submission, 29 June 2021 at [36].
[2021] FWCFB 4149
19
adoption, in the context of the modern awards objective. However, a case in favor of a
proposed award variation based solely on improving compliance with the award may not be
enough. UWU does not concede that the frequent non-compliance with this award justifies its
amendment solely on that basis. FWC should not make this variation to the award unless it is
persuaded that it is consistent with the modern awards objective for reasons in addition to the
reason that it might improve compliance.
b. It is important that an employee who enters into an agreement that will aggregate
allowances in the manner contemplated by this provision can withdraw from that agreement
for any reason, including when they discover they would be better off receiving individual
allowances under the award. It is therefore appropriate that this measure include a provision
allowing parties to withdraw from any agreement by providing at least four weeks notice (as is
proposed). However, the hospitality industry is afflicted by significant level of award non-
compliance. It is therefore crucial that employees are informed of their right to withdraw from
an agreement to aggregate allowances and their right to do is respected.
c. Item R.11 of the amended draft determination provides that FWC may arbitrate a dispute
which arises under this (and other) proposals, and in arbitrating such as dispute, may, among
other things, “require an employer to pay an employee the difference between what they were
paid under this Schedule and what they would otherwise have received under this award if the
Fair Work Commission determines that any agreement entered into under this Schedule was
an unfair for an employee”. In other words, the proposed clause appears to be intended to
empower the FWC to order an employer to rectify any financial disadvantage that may arise
for an employee who is paid the substitute allowance, who can show they would have been
better off not receiving the substitute allowance, and instead receiving individual allowances
under the award. This should be clear – that is – the power of FWC to require payment of a
financial disadvantage suffered as a result of the adoption of the substitute allowance should
be clarified.’31
[77] The UWU submits that the concerns it has identified justify the adoption of further
protective measures, and if the award variation is made:
Proposed clause R.7 should be amended as follows:
R.7 … Agreement must be in writing, and specify in writing that either party can
withdraw from the agreement by providing notice of four weeks. An agreement that
does not contain this is not valid.
Proposed clause R.11(b)(iii) should be amended as follows:
R.11 (b) (iii) … require an employer to pay an employee the difference between what
they were paid under this Schedule and what they would otherwise have received
under this award if the Fair Work Commission determines that any agreement entered
into under this Schedule was unfair for an employee (including in circumstances
where it is shown that an employee would have earned more if an agreement to be
paid the substitute allowance did not exist and the employee had been paid individual
allowances under the award).
31 UWU submission, 29 June 2021 at [38].
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20
[78] As to the concerns raised by the UWU, we would note that non-compliance is a
significant issue in the hospitality sector. An investigation by the Fair Work Ombudsman
between December 2018 and March 2020 in two popular food precincts (Brisbane’s West End
and Melbourne Laneways)32 found that 86% of the 93 businesses investigated were non-
compliant with workplace laws.
[79] The UWU submits that ‘a case in favour of the proposed award variation based solely
on improving compliance with the award may not be enough’.
[80] We note further that the case advanced in support of the Application is not based
solely on improving compliance with the Award. Further, if a proposed variation makes an
award simpler and easier to understand and hence enhances compliance; and does not
disadvantage the employees covered by the award, then prima facie that would provide a
strong merit argument in favour of such a variation.
[81] In reply, RCI consents to the UWU’s proposal that employees be informed of their
right to withdraw from a substitute allowance proposal and does not object to an amendment
which clearly stipulates the Commission’s authority to require payment to the employee if
they would have been paid more under the previous arrangement ‘should the Commission see
it as desirable’.
[82] For the reasons indicated above, we propose to make both of the amendments
proposed by the UWU, namely:
a variation to clause R.733 as follows:
… Agreement must be in writing, and specify in writing that either party can
withdraw from the agreement by providing notice of four weeks. An agreement
that does not contain this is not valid.
a variation to clause R.11(b)(iii)34 as follows:
… require an employer to pay an employee the difference between what they
were paid under this Schedule and what they would otherwise have received
under this award if the Fair Work Commission determines that any agreement
entered into under this Schedule was unfair for an employee (including in
circumstances where it is shown that an employee would have earned more if
an agreement to be paid the substitute allowance did not exist and the
employee had been paid individual allowances under the award)
3.3 The Exemption Rate Proposal
[83] Exemption rate clauses operate to exclude certain employees from some or all of the
terms of an award.35
32 Fair Work Ombudsman, ‘Food Precincts’.
33 This is clause R.7.1(b) in the attached draft determination.
34This is clause R.10.2(c) in the attached draft determination.
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[84] Historically, a number of pre-reform awards and Notional Agreements Preserving
State Awards (NAPSAs) included exemption rate clauses.36 These are a feature of a relatively
small number of modern awards;37 most commonly providing that employees at or above a
certain classification are exempt from provisions concerning overtime payments, penalty rates
and some allowances.38
[85] Part 10A of the Workplace Relations Act 1996 (WR Act) established a process for the
Australian Industrial Relations Commission (AIRC) to make modern awards. The AIRC had
to carry out the process in accordance with an ‘award modernisation request’ from the
Minister to the President of the AIRC.39 An award modernisation request could, inter alia,
give directions about how, or whether, the AIRC was to deal with particular matters about
which terms could be included in a modern award.40 Any terms the AIRC did include in a
modern award had to be consistent with such directions.41
[86] Paragraph 2(f) of the Minister’s Award Modernisation Request relevantly provided:
‘2. The creation of modern awards is not intended to: …
(f) exempt or have the effect of exempting employees who are not high income employees,
from modern award coverage or application, unless there is a history of exempting employees
from coverage across a wide range of pre-reform awards and NAPSAs in the relevant industry
or occupation;’
[87] Paragraph 2(f) was added to the Minister’s Award Modernisation Request on 2 May
2009. In Clerks – Private Sector Award 201042 (Clerks), the Full Bench considered paragraph
2(f) in dealing with an application to delete an exemption rate clause in the Clerks – Private
Sector Award 2010. The Full Bench had previously decided to include such a clause in the
award but reconsidered this in light of the variation to the Minister’s Award Modernisation
Request on 2 May 2009. The Full Bench also considered the Minister’s covering letter to the
President of the AIRC regarding paragraph 2(f), which said:
‘… The request now reflects more clearly the Government’s intention that the creation of
modern awards should not exempt, or have the effect of exempting from the safety net
provided by modern awards, employees other than those expressly listed in the request.
Employees who are not high income employees should be protected by a complete and
comprehensive modern award safety net of basic entitlements unless there is a history of
exempting employees from coverage across a wide range of pre-reform awards and NAPSAs
in the relevant industry or occupation …’
35 Clerks (Breweries) Consolidated Award case, Print S6443, 26 May 2000, at [3].
36 Clerks – Private Sector Award 2010 [2009] AIRCFB 922 at [14].
37 For example clause 18.4 of the Registered and Licensed Clubs Award 2020¸ clause 16 of the Business Equipment Award
2020 and clause 25 of the Hospitality Industry (General) Award 2020.
38 For example clause 23.4 of the Airport Employees Award 2020.
39 WR Act, s.576C(1).
40 WR Act, s.576C(3)(d).
41 WR Act, s.576N(2).
42 [2009] AIRCFB 922.
https://www.fwc.gov.au/documents/decisionssigned/html/2009aircfb922.htm
http://www.airc.gov.au/my_html/S6443.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2009aircfb922.htm
https://www.fwc.gov.au/documents/documents/awardmod/request_cons_121109.pdf
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[88] The Full Bench decided to remove the exemption rate clause, stating at [24]:
‘We also note the clear intent of the change to the Minister’s request and the submission made
in her letter to the Commission regarding her view of the test to be applied and the incidence
of exemption provisions in current instruments. In this connection we also consider that it is
relevant that, for the first time, the legislation determines that an award will not apply to
persons who reach a certain level of income.’
[89] Following the reasoning in Clerks, the Full Bench subsequently also removed an
exemption rate clause from the Banking, Finance and Insurance Award 2010.43 In both
awards, an annualised salary clause was inserted instead, which allowed an employer to pay
an employee an annual salary in satisfaction of provisions in the award regarding minimum
weekly wages, allowances, overtime and penalty rates, and annual leave loading.
[90] During the award modernisation process, an exemption rate clause (clause 17.3) was
included in the Registered and Licensed Clubs Award 2010, however that industry had a
history of exempting employees from the full range of award coverage. The AIRC Full Bench
noted that the clause reflected the terms of the major federal award for club managers and the
New South Wales Bowling and Golf Clubs Employees (State) Award.44 The clause is two-
tiered and applies to club managers receiving a salary in excess of 20 per cent, or in excess of
50 per cent, of the minimum annual salary rates for their classification. The clause also allows
Maintenance and horticultural Levels 1–4 to freely agree in writing to payment of a salary of
not less than 33 per cent in excess of the minimum weekly rate of pay for level 4
(Maintenance and horticultural Level 3–tradesperson) instead of various provisions of the
award.
[91] In our view, the constraints that the Minister’s Award Modernisation Request placed
on the AIRC as to the terms it could include in modern awards do not apply to variations to
modern awards under the Act. The Commission can include exemption rate clauses in modern
awards provided that:
it is satisfied that they are necessary to achieve the modern awards objective in s.134
of the Act45
they are about matters set out in s.139 of the Act46
they are not terms that must not be included in a modern award,47 and
they do not have the effect that employees earning above a certain rate stop being
covered by the award altogether (unless the Commission is satisfied that those
43 Banking, Finance and Insurance Award 2010 [2009] AIRCFB 923.
44 Award Modernisation [2009] AIRCFB 826 at [118].
45 FW Act, s.157(1).
46 FW Act, s.136(1)(a).
47 Terms that may not be included are set out in Subdivision D of Division 3 of Part 2-3 of the FW Act. None are clearly
relevant here.
http://www.airc.gov.au/awardmod/databases/clubs/Decisions/2009aircfb826.htm#P465_60961
https://www.fwc.gov.au/documents/decisionssigned/html/2009aircfb923.htm
[2021] FWCFB 4149
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employees would instead be covered by another modern award (other than the
Miscellaneous Award) that is appropriate for them).48
[92] As a general proposition, we accept that an exemption rate clause could reduce award
complexity and the regulatory burden on business and may encourage collective bargaining.
Whether this potential is realised will depend on the terms of the clause itself, and how it will
operate in the relevant industry. In particular the Commission needs to consider whether the
exemption rate has been set at a sufficiently high level so that it does not disadvantage
employees and whether it is consistent with the need to provide additional remuneration for
employees as set out in s.134(1)(da). Further, the factors the Full Bench considered in Clerks
in deciding to remove the exemption rate clause may also be relevant to whether an
exemption rate clause provides a fair and relevant minimum safety net. These factors include
that the Act already provides a level at which high income employees do not receive award
entitlements, with s.47(2) providing that modern awards do not apply to employees at a time
they are high income employees 49(currently those earning above $158,500).
[93] An exemption rate can be expressed as a specified amount (e.g. an annual salary in
excess of $80,000), or as a percentage of the rate of pay specified in the award (e.g. in excess
of 25% above the prescribed rate).
[94] Staff of the Commission have conducted an audit of modern awards and have
identified exemption rate clauses in the following 6 modern awards:
Business Equipment Award 2020
Hospitality Industry (General) Award 2020
Market and Social Research Award 2020
Racing Industry Ground Maintenance Award 2020
Registered and Licensed Clubs Award 2010, and
Sugar Industry Award 2020
[95] In most of the relevant clauses, the exemption rate is expressed as a percentage above
the minimum rate that would otherwise apply. The percentages range from 10 per cent for
employees in the clerical stream of the Business Equipment Award to 50 per cent for club
managers in the Registered and Licensed Clubs Award. The only rate that is not expressed as
a percentage is the exemption rate for employees in the technical stream of the Business
Equipment Award which is currently $64,653 (compared to the highest rate in the minimum
rates clause of $ 52,426).
[96] Each of the relevant exemption rate clauses is set out at Attachment A.
[97] An exemption rate clause can be drafted to operate by inclusion or exclusion, by
providing that:
48 Act, s.163(1).
49 High income employee is defined in the Act at s.329.
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the award will not apply to employees earning in excess of a specified
amount/percentage of the minimum annual salary payable under the award, other
than specified clauses;50 or
the award will apply to employees earning in excess of a specified
amount/percentage of the minimum annual salary payable under the award, save for
specified clauses.51
[98] Of the exemption rate clauses currently in modern awards, commonly excluded terms
are those dealing with:
penalty rates52
overtime53
higher duties54
ordinary hours of work and rostering,55 and
allowances e.g. uniform allowances,56 vehicle allowances57 and living away from
home allowances.58
[99] As mentioned earlier, exemption rate clauses are a feature of a relatively small number
of modern awards which had a history of such provisions. It is appropriate to adopt a cautious
approach to the insertion of such provisions in modern awards. They should generally be
confined to the higher classification levels in the award and should include safeguards aimed
at ensuring that employees are not disadvantaged.
[100] Evidence about common work patterns and allowances received by employees earning
more than the proposed exemption rate will assist the Commission in determining which
clause exclusions are necessary for the clause to meet the modern awards objective.
[101] The range of excluded terms cannot be so broad that, in effect, the exemption rate
clause provides that the award ceases to apply to employees who are paid the exemption rate.
.
[102] The exemption rate proposal is set out in clause R.3 of proposed Schedule R, as
follows:
50 For example, the draft exemption clause in Clerks at [3].
51 For example, clause 17.3 of the Clubs Award.
52 For example: Clubs Award, clauses 17.3(a)(i) and 17.3(a)(ii); Hospitality Industry (General) Award 2020 (Hospitality
Award), clause 25.2(f).
53 For example: Clubs Award, clauses 17.3(a)(i) and 17.3(a)(ii); Hospitality Award, clause 25.2(e); Business Equipment
Award 2020 (BE Award) clauses 16.1(h) and 16.3(d).
54 For example: Clubs Award, clauses 17.3(a)(i) and 17.3(a)(ii); BE Award, clauses 16.1(c) and 16.3(c).
55 For example: Clubs Award, clauses 17.3(a)(i) and 17.3(a)(ii); Hospitality Award, clause 25.2(b); BE Award, clauses
16.1(a) and 16.3(a).
56 For example: Clubs Award, clause 17.3(a)(ii).
57 For example: Clubs Award, clause 17.3(a)(ii).
58 For example: BE Award, clause 16.3(e).
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R.3 Exemption Rate
R.3.1 An employer and a full time employee (paid at the Level 5 or Level 6 rate of pay) may
enter into an agreement to pay the employee no less than 170% of their relevant Level rate of
pay each week as set out in clause 18 Minimum Rates of this award (the Exemption Rate).
R.3.2 Where an agreement to pay the Exemption Rate has been made, the following clauses of
this award shall not apply:
(a) clauses 16.5 and 16.6 (meal break);
(b) clause 21 (allowances);
(c) clause 23 (overtime rates) but not clause 23.2; and
(d) clause 24 (penalty rates).
R.3.3 Where an agreement has been made to pay an employee the Exemption Rate the
employee must be paid the Exemption Rate for each hour worked up to and including 57 hours
in a week and for hours worked in excess of 57 in a week the employee must be paid:
(a) 150% of the Exemption Rate for the first two hours in excess of 57 in the week;
and then
(b) 200% of the Exemption Rate thereafter in the week.
R.3.4 The Exemption Rate shall be the rate for the purposes of calculating:
(a) personal leave; and
(b) annual leave.
R.3.5 Clause R3 does not apply to employees classified under the administrative and general
stream (Schedule A.4).
NOTE: Under the NES (see section 62 of the Act) an employee may refuse to work additional
hours if they are unreasonable. Section 62 sets out factors to be taken into account in
determining whether the additional hours are reasonable or unreasonable.
[103] The central features of the exemption rate proposal are as follows:
It only applies to persons otherwise paid at the level 5 or 6 rate in the Restaurant
Award, which effectively limits the application of the exemption rate to senior or
specialist roles in the industry.
It operates by agreement with an individual employee and such agreement must be
reduced to writing.
Any such agreement can be unilaterally terminated on 4 weeks’ notice.
[2021] FWCFB 4149
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While subject to an agreement, the employee must be paid for each hour worked at
the rate of 170% of their ordinary hourly rate (the exemption rate).
The exemption rate is paid for the first 57 hours worked in a week and after 57
hours the employee is paid at overtime rates based on the Exemption rate (which is
170% of the hourly rate).
The employee receives the 170% exemption rate for the purposes of annual leave
and personal leave.
An exemption rate agreement means that the following clauses of the Award do not
apply:
o 16.5 and 16.6 (meal break)
o 21 (allowances)
o 23 (overtime rates) but not clause 23.2, and
o 24 (penalty rates).
All other provisions of the Award and the NES continue to apply, such as hours of
work.
[104] The RCI submission advances the following arguments in favour of the proposed
exemption rate:
‘(a) It removes excessive administration required from employers who already face increasing
compliance measures from Pandemic related government directives and restrictions.
(b) Provides for a minimum guaranteed rate of pay for employees which can be utilised to
incentivise staff and applicants during the recruitment process.
(c) It is attractive for potential applicants and existing employees because it provides a realistic
and tangible cap of 57 hours instead of relying on “reasonable overtime” for an annualised
salary arrangement which was ambiguous, uncertain and reconciled in arrears.
(d) Promotes business confidence and encourages employment with assurance of hours and
expectations of pay while reducing the administrative burden and compliance costs required
from employers and employees.’
[105] The UWU submits that the proper role of exemption rate clauses in awards is limited
only to those employees covered by an award who might be described as ‘high income’. The
UWU referred to the decision of the Full Bench of the AIRC in Clerks59 which, as set out at
[87] above, in considering the then Minister’s Award Modernisation Request provided:
‘The request now reflects more clearly the Government’s intention that the creation of modern
awards should not exempt, or have the effect of exempting from the safety net provided by
modern awards, employees other than those expressly listed in the request. Employees who are
not high income employees should be protected by a complete and comprehensive modern
award safety net of basic entitlements unless there is a history of exempting employees from
59 [2009] AIRCFB 922.
[2021] FWCFB 4149
27
coverage across a wide range of prereform awards and NAPSAs in the relevant industry or
occupation …’
[106] The UWU also referred to the following statement from Munro J in Alcoa of Australia
Ltd v Federated Clerks Union of Australia60:
‘The notion of an exemption rate as the point of demarcation between a subordinate employee
and a staff or managerial level employee seems most compatible with the evidence and history
of the provision in the awards and their antecedents. Moreover, such an approach is also
consistent with the rationale of some exemption clauses which have been the subject of arbitral
discussion in this Commission. That rationale is consistent also with the exemption rate being
treated as the practical boundary to FCU negotiations for overaward payments.’
[107] The UWU submits that the proposed exemption rate may go further in its application
than ‘high income’ employees or ‘managers’ as it applies to both the highest grade within the
food and beverage stream of the Award, the highest grade within the Kitchen stream and the
second highest grade within the Kitchen stream, none of which are described as ‘managers’.61
[108] The UWU raises the following concerns:62
The proposal may extend the operation of the exemption rate concept beyond its
proper confines, in a manner inconsistent with the traditional approach taken by the
FWC and its predecessors to limit the application of exemption rates only to
managers, or high income employees, or where a historical tradition of exemption
applies.
Employers who attempt to activate this proposal will have to be careful to honor
contractual obligations they have in place with employees – for example – in
relation to extant “over-award” entitlements. For example, in a Statement filed by
RCI in support of the application, Jeremy Courmadias from Fink Restaurant says:
“We employ a range of senior staff, both in back and front of hours positions
whose salary puts them well above the current award rates. We would
immediately seek to introduce exemption rates into our business for roughly 30
employees.” (Courmadias Statement at [9]),
UWU does not suggest Courmadias has indicated or intends that his business may
dishonor the above award arrangements he refers to. But his evidence demonstrates
circumstances in which employers may seek to implement the exemption rate
proposal – where extant above award contractual entitlements already apply. And
UWU submits employers should be cautioned by FWC to ensure any such conduct
occurs in a manner which is consistent with those contractual obligations.
While the proposal is apparently designed to promote compliance, it might
inadvertently encourage non-compliance:
60 [1990] AIRC 163 (28 February 1990).
61 UWU submission, 29 June 2021 at [49].
62 UWU submission, 29 June 2020 at [50].
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o A common cause of non-compliance is the failure to properly pay each
individual entitlement in the Award; to instead pay an aggregate rate (in
breach of the Award) or an annualized salary, but fail to adhere to its
requirements.
o This proposal expands the circumstances in which an employer is
permitted to pay an employee an aggregate rate of pay, instead of the
complete safety net of basic modern award entitlements.
o By introducing such an exemption, there may be a danger some
employers may believe, incorrectly, that the circumstances in which they
are entitled to pay an aggregate rate, expand beyond the Level 4 and into
more junior levels in the classification structure.
The proposal embodies a scenario in which employees might work more than 57
hours in a week. While RCI submits that this scenario is “rare” the very reference to
a scenario in which an employee might work more than 57 hours in a week, or
indeed the possibility that such a scenario might somehow be legitimized by a
specific provision in an award, is cause for some concern.’
[109] As to the UWU’s concerns, we do not accept that the proposal extends the ‘operation
of the exemption rate concept beyond its proper confines’. Nor do we accept that the proposal
‘might inadvertently encourage’ non-compliance.
[110] Non-compliance is an issue in the hospitality sector and the most common breaches
relate to under/non-payment of penalty rates. The reasons given for non-compliance by
employers include paying flat hourly rates to save on administration costs but failing to
adequately compensate employees for their full entitlement. We would expect that the
inclusion of an exemption rate proposal would promote compliance – by specifying the rate
which must be paid to ‘exempt’ an employee from the specified award entitlements; rather
than leaving it to employers to ‘guess’ at an appropriate loaded hourly rate. As to the concern
that employers may incorrectly apply the exemption rate to more junior classification levels,
the proposal only applies to level 5 and 6 employees – as is apparent from clause R 3.1. To
put the matter beyond doubt we will insert a note, as follows:
‘NOTE: Exemption rate agreements under clause R.3 only apply to full time employees paid at
Level 5 or 6 rates of pay. This clause does not apply to Level 1 – 4 employees.’
[111] Finally, as to the UWU’s concern that employees might work more than 57 hours per
week, in the June Statement we proposed including a note referencing s.62 of the Act and
suggested that the following wording from the note at clause 23 of the Restaurant Award
might be appropriate:
‘NOTE: Under the NES (see section 62 of the Act) an employee may refuse to work additional
hours if they are unreasonable. Section 62 sets out factors to be taken into account in
determining whether the additional hours are reasonable or unreasonable.’
[2021] FWCFB 4149
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[112] The UWU submitted that the inclusion of this note would be appropriate. The note
will be included in the draft determination attached to this decision.
[113] In response to the Commission’s provisional view that the variation be granted, the
UWU submitted the following:63
the draft determination be amended to prevent the making of an exemption rate
agreement in relation to the Grade 4 Cook such that the provision is limited only to
the two highest classifications in the Kitchen and Food and beverage streams
respectively
clause R.11 be amended as follows:64
‘R.11 (b) (iii) … require an employer to pay an employee the difference
between what they were paid under this Schedule and what they would
otherwise have received under this award if the Fair Work Commission
determines that any agreement entered into under this Schedule was [an] unfair
for an employee (including in circumstances where it is shown that an
employee would have earned more if an agreement to be paid the substitute
allowance did not exist and the employee had been paid individual allowances
under the award)’
the Note appearing beneath clause 2365 of the Restaurant Award should be repeated
below clause R.3(c).
[114] In response to the proposal that the Grade 4 Cook be excluded from the exemption
rates proposal, RCI submits that:
‘there is no probative basis advanced by the UWU for the Fair Work Commission to depart
from its preliminary view as expressed in its Statement.
No criticism has been made of the method of calculating the exemption rate for this Grade
Cook nor any special circumstances advanced to disentitle them.
All Level 5 and Level 6 employees should be entitled to enter into a voluntary exemption rate
arrangement under this Award if they wish to at the rate of 170% which is acknowledged by
the UWU as a higher rate than exists in any other modern award it has an interest in.
RCI reinforces that the exemption rate proposal should be aligned with the Level 5 and Level
6 pay grades and not the Classification Levels for consistency.
A Food and Beverage Supervisor who is a Level 5 and a Cook Grade 4 who is also being paid
a Level 5 have the same pay levels. Therefore, they should both be entitled to the voluntary
63 UWU submission, 29 June 2021 at [52].
64 We note that the cross-referencing at [52] of the UWU submissions of 29 June 2021 is incorrect. The UWU confirmed that
the references at paragraphs 52(b) and (c) were intended to be to paragraphs 40(a) and (c) of the submissions
respectively.
65 The UWU submission of 29 June 2021 refers to the note under clause 30. The UWU confirmed that the reference was
intended to be to the note under clause 23.
[2021] FWCFB 4149
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exemption rate proposal and demonstrates that the criteria for eligibility should be based on
pay grade levels.’66
[115] We agree with RCI, there is no logical reason for excluding a Grade 4 Cook from the
proposal. A Grade 4 Cook is a classification Level 5 employee and the proposal includes
Level 5 Food and beverage supervisors. In these circumstances we see no reason to exclude
Grade 4 Cooks.
[116] We have already accepted the other amendments proposed by the UWU.
[117] As amended in the terms set out above, the proposed variation has merit.
[118] We now turn to consider the modern awards objective.
3.4 The Modern Awards Objective
[119] The Commission may make a determination varying a modern award if the
Commission is satisfied the determination is necessary to achieve the modern awards
objective. The modern awards objective is in s.134 of the the Act and provides as follows:
‘What is the modern awards objective?
134(1) The FWC must ensure that modern awards, together with the National Employment
Standards, provide a fair and relevant minimum safety net of terms and conditions, taking into
account:
(a) relative living standards and the needs of the low paid; and
(b) the need to encourage collective bargaining; and
(c) the need to promote social inclusion through increased workforce participation;
and
(d) the need to promote flexible modern work practices and the efficient and
productive performance of work; and
(da) the need to provide additional remuneration for:
(i) employees working overtime; or
(ii) employees working unsocial, irregular or unpredictable hours; or
(iii) employees working on weekends or public holidays; or
(iv) employees working shifts; and
(e) the principle of equal remuneration for work of equal or comparable value; and
66 RCI submission, 2 July 2021 at [29]-[33].
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(f) the likely impact of any exercise of modern award powers on business, including
on productivity, employment costs and the regulatory burden; and
(g) the need to ensure a simple, easy to understand, stable and sustainable modern
award system for Australia that avoids unnecessary overlap of modern awards; and
(h) the likely impact of any exercise of modern award powers on employment growth,
inflation and the sustainability, performance and competitiveness of the national
economy.’
This is the modern awards objective.
When does the modern awards objective apply?
(2) The modern awards objective applies to the performance or exercise of the
FWC’s modern award powers, which are:
(a) the FWC’s functions or powers under this Part; and
(b) the FWC’s functions or powers under Part 2-6, so far as they relate to
modern award minimum wages.
Note: The FWC must also take into account the objects of this Act and any other applicable
provisions. For example, if the FWC is setting, varying or revoking modern award minimum
wages, the minimum wages objective also applies (see section 284).’
[120] The modern awards objective is very broadly expressed.67 It is a composite expression
which requires that modern awards, together with the National Employment Standards (NES,
provide ‘a fair and relevant minimum safety net of terms and conditions’, taking into account
the matters in ss.134(1)(a)–(h) (the s.134 considerations).68 Fairness in this context is to be
assessed from the perspective of the employees and employers covered by the modern award
in question.69
[121] The obligation to take into account the s.134 considerations means that each of these
matters, insofar as they are relevant, must be treated as a matter of significance in the
decision-making process.70 No particular primacy is attached to any of the s.134
considerations71 and not all of the matters identified will necessarily be relevant in the context
of a particular proposal to vary a modern award.
[122] It is not necessary to make a finding that the award fails to satisfy one or more of the
s.134 considerations as a prerequisite to the variation of a modern award.72 Generally
67 Shop, Distributive and Allied Employees Association v National Retail Association (No 2) (2012) 205 FCR 227 at [35]
68 (2017) 265 IR 1 at [128]; Shop, Distributive and Allied Employees Association v The Australian Industry Group [2017]
FCAFC 161 at [41]–[44]
69 [2018] FWCFB 3500 at [21]-[24]
70 Edwards v Giudice (1999) 94 FCR 561 at [5]; Australian Competition and Consumer Commission v Leelee Pty Ltd [1999]
FCA 1121 at [81]-[84]; National Retail Association v Fair Work Commission (2014) 225 FCR 154 at [56]
71 Shop, Distributive and Allied Employees Association v The Australian Industry Group [2017] FCAFC 161 at [33]
72 National Retail Association v Fair Work Commission (2014) 225 FCR 154 at [105]-[106]
http://www.fwc.gov.au/decisionssigned/html/2018fwcfb3500.htm
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speaking, the s.134 considerations do not set a particular standard against which a modern
award can be evaluated; many of them may be characterised as broad social objectives.73 In
giving effect to the modern awards objective the Commission is performing an evaluative
function taking into account the matters in s.134(1)(a)–(h) and assessing the qualities of the
safety net by reference to the statutory criteria of fairness and relevance.
[123] Section 138 of the Act emphasises the importance of the modern awards objective:
‘Section 138 Achieving the modern awards objective
A modern award may include terms that it is permitted to include, and must include terms that
it is required to include, only to the extent necessary to achieve the modern awards objective
and (to the extent applicable) the minimum wages objective.’
[124] What is ‘necessary’ to achieve the modern awards objective in a particular case is a
value judgment, taking into account the s.134 considerations to the extent that they are
relevant having regard to the context, including the circumstances pertaining to the particular
modern award, the terms of any proposed variation and the submissions and evidence.74
[125] We now turn to the s.134 considerations.
s. 134(1)(a): relative living standards and the needs of the low paid
[126] A threshold of two-thirds of median full-time wages provides ‘a suitable and
operational benchmark for identifying who is low paid,’75 within the meaning of s.134(1)(a).
Using this benchmark, employees paid at classification levels 1 to 5 in the Restaurant Award
are ‘low paid’ within the meaning of s.134(1)(a).
[127] The various elements of the proposed Schedules have the potential to increase the
wages of the low paid and thus assist them to better meet their needs, in particular:
the exemption rate option (available to level 5 and 6 employees) will provide a
guaranteed 170% of the relevant weekly rate of pay and is set at a level well above
comparable provisions in other awards
the classification broad banding provides an opportunity for the relevant employees
to increase their minimum rate of pay by performing a broader range of tasks for
which they have the requisite skills, and
the substitute allowance will increase the minimum rate of pay on an ‘all purposes’
basis in substitution for a number of allowances paid on a per occasion or
contingent basis.
73 See National Retail Association v Fair Work Commission (2014) 225 FCR 154 at [109]-[110]; albeit the Court was
considering a different statutory context, this observation is applicable to the Commission’s task in the Review
74 See generally: Shop, Distributive and Allied Employees Association v National Retail Association (No.2) (2012) 205 FCR
227
75 [2017] FWCFB 1001 at [166]
http://www.fwc.gov.au/decisionssigned/html/2017fwcfb1001.htm
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[128] The extent to which these proposals result in an increase in wages will depend on the
circumstances and is difficult to estimate with any precision; but the likelihood is that some
low paid employees will be better off.
[129] The UWU submits that a variation which has the effect of reducing take home pay is
not consistent with the need to take into account ‘relative living standards and the needs of the
low paid’. As a general proposition we agree with the UWU; but the proposed variation
contains a range of safeguards and the exemption rate and substitute allowance rates have
been set at levels intended to prevent such an outcome.
[130] In our view – taking account of the matters mentioned – this consideration weighs in
favour of the proposed variation.
s. 134(1)(b) the need to encourage collective bargaining
[131] RCI submits that the industry has ‘limited experience of bargaining and is mainly
award reliant.’ It contends that s.134(b) is a neutral consideration.
[132] The proposed variation may be said to decrease the incentive for employers to bargain;
but it is also likely that employee and employer decision making about whether or not to
bargain is influenced by a complex mix of factors. Section 134(1)(b) speaks of ‘the need to
encourage collective bargaining’. We are not persuaded that the proposed variation would
‘encourage collective bargaining’. It follows that this consideration weighs against the
variation proposed.
s. 134(1)(c) the need to promote social inclusion through increased workforce
participation
[133] This consideration is directed at obtaining employment. RCI submits that the measures
in the proposed variation are designed to promote business confidence and flexibility during
the Pandemic recovery phase and which ‘will have an ambient benefit to increased workforce
participation’76 and further:
‘The operation of the proposed classification structure will assist an employer in the supply side
challenge that the Pandemic has created in the industry allowing an employer to provide
increased minimum wages in return for greater working flexibility which will likely make
working in the industry more attractive for some prospective employees.’77
[134] In our view s.134(c) is a neutral consideration. The asserted benefits for workforce
participation are largely speculative. We accept that increasing wages would make the
industry more attractive to prospective employees, but employers can chose to increase wages
without the need for a variation.
s. 134(1)(d) the need to promote flexible modern work practices and the efficient and
productive performance of work
76RCI submission, 31 May 2021 at [27(c)(i)].
77 RCI submission, 31 May 2021 at [38(c)(iii)].
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[135] The exemption rate and substitute allowance proposals will not in themselves change
work practices and on that basis s.134(1)(d) is a neutral consideration (in respect of those
elements of the proposed variation). The RCI accepts that proposition.
[136] As to the proposed broad banding classification structure, RCI submits that it:
‘promotes an employee to undertake a broader set of tasks reflecting the ordinary and practical
operation of many businesses in the industry which will promote flexible modern work
practices and the efficient and productive performance of work.’78
[137] We accept that the broad banding aspect of the proposed variation will promote
flexible modern work practices. This consideration weighs in favour of the proposed
variation.
s. 134(1)(da) the need to provide additional remuneration
[138] The level of the exemption rate (170%) is intended to effectively offset the substituted
award benefits such as overtime and is at a level well above comparable provisions in other
modern awards. This consideration is neutral.
s. 134(1)(e) the principle of equal remuneration for work of equal or comparable
value
[139] This consideration is neutral; no party contended to the contrary.
s. 134(1)(f) the likely impact of any exercise of modern award powers on business,
including on productivity, employment costs and the regulatory burden
[140] We accept the submission of RCI that the exemption rate and substitute allowance proposals
will reduce the regulatory burden on employers. We also accept that the broad banding proposal has
the potential to promote the more ‘effective and efficient performance of work’. . These are matters
which weigh in favour of making the variation sought.
s. 134(1)(g) the need to ensure a simple, easy to understand, stable and sustainable
modern award system for Australia that avoids unnecessary overlap of modern
awards
[141] Each element in the proposed schedules is simple and easy to understand. In respect of
the exemption rate element RCI submits:
‘as some of the evidence suggests the exemption rate may also draw more employers back to
operating fully under the Award rather than working on the basis of common law set off
provisions which reinforces the sustainability of the Award and its part in the modern award
system.’79
[142] The consideration weighs in favour of the proposed variation.
78 RCI submission, 31 May 2021 at [38(d)(ii)].
79 RCI submission, 31 May 2021 at [27(g)(iii)].
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s.134(1)(h) the likely impact of any exercise of modern award powers on employment
growth, inflation and the sustainability, performance and competitiveness of the
national economy
[143] We accept that the variation sought will have some, albeit limited, positive impact on
the sustainability, performance and competitiveness of the national economy and that this is a
factor which weighs in favour of the proposed variation.
[144] Taking into account the s.134(1) considerations we are satisfied that the variation of
the Restaurant Award in the terms of the amended draft determination is necessary to achieve
the modern awards objective.
4 Next Steps
[145] We propose to vary the Restaurant Award in the terms set out in the attached draft
variation determination. As to the operative date of the variation, RCI submits:
‘This requires some sensitivity. Schedule R is needed now. This said and consistent with the
UWU seeking caution, a prospective operative date would allow the RCI and the UWU to
properly prepare its members to understand and utilise Schedule R most effectively.
This requires a real balance of competing considerations and accordingly, the RCI submits that
the Determination should come into operation four weeks from the date of final decision.’80
[146] We agree and the variation determination will come into operation on 11 August 2021.
In accordance with s.165(3) of the Act, the determination does not take effect in relation to a
particular employee until the start of the employee’s first full pay period that starts on or after
11 August 2021. We confirm the provisional view set out in the June Statement that the
Schedule R should operate for an initial period of 12 months. We confirm that Schedule AA
will operate for the same period. The Schedules will operate until 10 August 2022.
[147] Since the draft determination was published on 3 June 2021, the Expert Panel has
handed down the AWR decision.81 The Expert Panel determined that modern award minimum
wages would be increased by 2.5% and was satisfied that there were exceptional
circumstances justifying the variation determinations in respect of the Accommodation and
food services sector (which includes the Restaurant Award) coming into operation on 1
November 2021.82 A determination varying the wages in the Restaurant Award was issued on
25 June 2021 and comes into operation on 1 November 2021.83
[148] The determination inserting Schedules AA and R into the Restaurant Award will come
into operation on 11 August 2021. In order to ensure that the rates in Schedule R are increased
in line with the AWR decision, we will issue a second determination in this matter which will
80 RCI submission, 2 July 2021 at [39]-[40].
81 [2021] FWCFB 3500.
82 [2021] FWCFB 3500 at [256].
83 PR729382.
mailto:https://www.fwc.gov.au/documents/awardsandorders/html/pr729382.htm
[2021] FWCFB 4149
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vary both the wage rates and the substitute allowance and will come into operation on 1
November 2021.
[149] Draft determinations are attached to this decision. Interested parties have 7 days to
comment on the draft determinations. Comments should be emailed to
chambers.ross.j@fwc.gov.au by no later than 4pm on Wednesday, 21 July 2021.
[150] As mentioned earlier, the UWU proposes that a monitoring committee be established
to monitor the operation of any variation made by the Commission and that a review of the
operation of the variation commence no later than 9 months after its commencement.
[151] We endorse the UWU’s proposed monitoring committee; but as RCI consents to the
proposal and has agreed to engage in the committee we do not think it necessary to include
the proposal in the variation determination arising from this decision. In the event that the
implementation of the monitoring committee encounters any practical difficulties the matter
can be revisited.
[152] We also agree with the UWU proposal that a review commence 9 months after the
variation determination comes into operation. The matter will be called on at that time for a
conference to consider the scope of the review.
[153] The review will consider, among other things, whether the various concerns expressed
by UWU members about the proposed variations have come to pass and the extent of
utilisation of the various elements of the new Schedules. In relation to the last point, we
would expect RCI to file evidence from the witnesses who have given evidence on behalf of
RCI in these proceedings as to their utilisation of various elements of the new Schedules.
[154] It seems to us that the measures encompassed in the proposed variation strike an
appropriate balance between the provision of additional flexibilities for employers and
treating affected employees fairly. We commend the parties on their commitment to working
together to address the difficult circumstances in which the industry and its employees find
themselves. As demonstrated by the actions of RCI and the UWU, this is a time for co-
operation, not conflict.
PRESIDENT
Printed by authority of the Commonwealth Government Printer
PR731700
mailto:chambers.ross.j@fwc.gov.au
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Attachment A—Relevant exemption clause
Award title Exemption clause
Business Equipment Award
2020
16.1 Exemptions for employees in the technical stream
The following award provisions will not apply to an employee in the
technical stream in receipt of a salary of $63,076 or higher:
(a) clause 12—Ordinary hours of work and rostering;
(b) clause 13—Meal breaks;
(c) clause 14.4—Higher duties;
(d) clause 17.2(c)—First aid allowance;
(e) clause 17.2(d)—Representation allowance;
(f) clause 17.3(d)—Area allowance;
(g) clause 17.3(e)—Living away from home allowance;
(h) clause 20—Overtime;
(i) clause 21—Special provisions for dayworkers;
(j) clause 22—Special provisions for shiftworkers; and
(k) clause 28.4—Payment for time worked on a public holiday.
16.2 Exemptions for employees in the clerical stream
Except as to:
(a) clause 1—Title and commencement;
(b) clause 3—The National Employment Standards and this award;
(c) I clause 4—Coverage;
(d) clause 5—Individual flexibility arrangements;
(e) I clause 23—Annual leave;
(f) clause 24—Personal/carer’s leave and compassionate leave;
(g) clause 26—Community service leave;
(h) clause 28—Public holidays;
(i) clause 30—Consultation about changes to rosters or hours of
work;
(j) clause 31—Dispute resolution; and
(k) clause 32—Termination of employment (not including clause
32.2).
the terms of this award will not apply to any employee in the clerical stream
in receipt of a salary which exceeds the appropriate rate prescribed in clause
14.2 in which they are employed by 10%.
16.3 Exemptions for employees in the commercial travellers stream
The following award provisions will not apply to employees in the
commercial travellers stream:
(a) clause 12—Ordinary hours of work and rostering;
(b) clause 13—Meal breaks;
(c) clause 14.4—Higher duties;
(d) clause 20—Overtime;
(e) clause 21—Special provisions for dayworkers;
(f) clause 22—Special provisions for shiftworkers;
[2021] FWCFB 4149
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Award title Exemption clause
(g) clause 23—Annual leave;
(h) clause 24—Personal/carer’s leave and compassionate leave;
(i) clause 26—Community service leave; and
(j) clause 28—Public holidays.
Hospitality Industry (General)
Award 2020
25. Salaries absorption (Managerial Staff (Hotels))
25.1 Clause 25 applies to all employees within the Managerial Staff (Hotels)
classification level as defined by Schedule A—Classification Structure and
Definitions who are paid a salary that is at least 125% of the minimum
annual salary in clause 18.2—Managerial staff (Hotels).
25.2 An employee is not entitled to the benefit of the terms and conditions
within the following clauses:
(a) Clause 10—Part-time employees;
(b) Clause 15—Ordinary hours of work and rostering arrangements
(c) Clause 16—Breaks;
(d) Clause 26—Allowances;
(e) Clause 28—Overtime;
(f) Clause 29—Penalty rates;
(g) Clause 30.3—Payment for annual leave loading;
(h) Clause 35.3—Additional public holiday arrangements for full-
time employees;
(i) Clause 37—Deductions for provision of employee
accommodation and meals.
25.3 An employee must be rostered to have a minimum of 8 days off duty
during each 4 week cycle of work.
25.4 An employee who is required to work on a public holiday is entitled to
paid time off of equal length to the time worked on the public holiday.
25.5 The paid time off mentioned in clause 25.4 must be taken within 28
days after the entitlement is accrued.
25.6 Despite the requirement to take time off within 28 days of accruing it in
clause 25.5 an employee and an employer may agree to extend the period for
taking the accrued time off to within 6 months of its accrual subject to the
following:
(a) The agreement is recorded in writing and retained as an
employee record;
(b) The accrued time off is taken at a time or times within the period
of 6 months agreed by the employee and the employer;
(c) If the accrued time off is not taken within the period of 6 months,
the employer must pay the employee for the accrued time off in the
next pay period following those 6 months; and
(d) If, on the termination of the employee’s employment, accrued
time off for working on a public holiday has not been taken, the
employer must pay the employee for the accrued time off.
25.7 Any calculation required to be made under this award to determine
hourly amounts payable to an employee must be made by reference to the
weekly equivalent of the annual salary of the employee. The weekly
equivalent is determined by dividing the annual salary by 52 and rounding
the result to the nearest $0.10.
25.8 Subject to compliance with any reimbursement policy approved by the
[2021] FWCFB 4149
39
Award title Exemption clause
employer, the employer must reimburse an employee for any money
reasonably spent by the employee for and on behalf of the employer.
Market and Social Research
Award 2020
14.4 Payment on a total wage basis
An employer may pay a full-time or part-time employee on a total wage basis
instead of the wages and penalty payments set out in clauses 14—Minimum
rates, 16—Allowances, 18—Overtime, 19—Penalty rates and 20.2, provided
that the total wage is not less than the total minimum wages set out in clause
14.1, plus 25%.
Racing Industry Ground
Maintenance Award 2020
11.4 A casual employee engaged on night cleaning duties must be paid, in
addition to the casual loading of 25%, a shift allowance of 30% of the
ordinary hourly rate for each hour work worked. The following provisions do
not apply to casual employees on night cleaning duties:
clause 13—Ordinary hours of work and rostering;
clause 19—Overtime; and
clause 20—Penalty rates.
Registered and Licensed Clubs
Award 2010
17.3 Non-application of particular provisions of this awards to
employees within particular classifications receiving specified salaries
(a) Managerial classifications—levels 7–13 inclusive in clause 17.2
(i) Subject to the requirements of the NES, the provisions of clauses:
18.1(h)—Higher duties;
18.3—Broken shifts;
26—Ordinary hours of work and rostering (other than
sub clause 26.8—Special provisions for accrued
rostered days off—club managers);
27—Recall to duty—club managers;
28—Overtime; and
29—Penalty rates (other than penalty rate provisions
relating to public holidays (see clause 29));
will not apply to a club manager receiving a salary of 20% in excess
of the minimum annual salary rates for the appropriate classification
prescribed in Schedule C—Classifications Definitions.
(ii) Subject to the requirements of the NES, the provisions of
clauses:
18.1(a)—Meal allowance;
18.1(c)—Uniforms—club managers;
18.1(d)—Vehicle allowance;
18.1(h)—Higher duties;
18.3—Broken shifts;
26—Ordinary hours of work and rostering;
27—Recall to duty—club managers;
28—Overtime;
29—Penalty rates; and
34.4—Additional arrangements for full-time employees
will not apply to club managers receiving a salary in excess of 50%
[2021] FWCFB 4149
40
Award title Exemption clause
above the minimum annual salary rate for the appropriate
classification prescribed in Schedule C—Classification Definitions.
(iii) To avoid doubt, where a club manager is not paid in accordance
with either paragraph (i) or (ii) above, the club manager will be
entitled to the benefits of all relevant provisions of this Award.
(b) Maintenance and horticultural levels 1–4
An employee classified at Maintenance and horticultural levels 1–4 (as
defined) may freely agree in writing to payment of a salary of not less than
33% in excess of the minimum weekly rate of pay for level 4 (Maintenance
and horticultural level 3—tradesperson) instead of the following provisions
of the award—clause 18.1(a)—Meal allowance; clause 24—Meal breaks;
clause 26—Ordinary hours of work and rostering; clause 28—Overtime; and
clause 34—Public holidays, provided that no employee on such a salary
arrangement will be required to work in excess of 38 ordinary hours per
week, averaged over a 52 week period. An agreement made pursuant to this
subclause may be terminated by either party after 12 months by giving 28
days’ written notice or such lesser period as is agreed.
Sugar Industry Award 2020 17.2 Single contract hourly rate
(a) Field sector employees may be engaged in writing on a single contract
hourly rate basis and will be paid 115% of the minimum hourly rate and must
be paid that rate for each and every hour of work, instead of the provisions of
clauses 15.2(c), 29.1 and 29.2 irrespective of the number of hours worked per
day or per pay period or the days of the pay period on which work is
performed.
(b) The minimum hourly rate, for the purposes of clause 17, is the minimum
hourly rate for the employee’s classification in clause 17.1.
(c) Employees employed on this basis will be entitled to all other
entitlements contained in this award.
[2021] FWCFB 4149
41
Fair Work Act 2009
s.157—Application to vary a modern award to achieve the modern awards objective
Restaurant & Catering Industrial
(AM2021/58)
RESTAURANT INDUSTRY AWARD 2020
[MA000119]
Restaurants
JUSTICE ROSS, PRESIDENT
DEPUTY PRESIDENT CLANCY
COMMISSIONER BISSETT MELBOURNE, 21 JULY 2021
Restaurant Industry Award 2020 – Renaming of certain classification titles and COVID-19
Pandemic Recovery.
A. Further to the decision [[2021] FWCFB XXXX] issued by the Fair Work Commission
on 14 July 2021, the above award is varied as follows:
1. By inserting Schedule AA as follows:
Schedule AA—Classification Structure and Definitions
Note: To avoid any doubt, for any employee at the introductory level, their duties as stipulated
under the current award in Schedule A – Classification Structure and Definition will remain
unchanged.
AA.1 Schedule AA operates from 11 August 2021 until 10 August 2022. The period of
operation can be extended on application to the Fair Work Commission.
AA.2 Restaurant/Café Worker Grade 1
AA.2.1 Means an employee who is engaged in any of the following:
MA000119 PRXXXXXX
DRAFT DETERMINATION
[2021] FWCFB 4149
42
(a) picking up glasses; or
(b) providing general assistance to food and beverage attendants of a higher classification
not including service to customers; or
(c) removing food plates; or
(d) setting or wiping down tables; or
(e) cleaning and tidying associated areas; or
(f) receiving money; or
(g) cooking breakfasts and snacks, baking, pastry cooking or butchering; or
(h) general cleaning duties within a kitchen or food preparation area and scullery,
including cleaning cooking and general utensils used in a kitchen and restaurant; or
(i) assisting employees who are cooking; or
(j) assembling and preparing ingredients for cooking; or
(k) general pantry duties.
AA.2.2 In addition to the duties set out in AA.2.1, means an employee who has not achieved
the appropriate level of training and who is engaged in any of the following:
(a) supplying, dispensing or mixing liquor; or
(b) assisting in the cellar; or
(c) undertaking general waiting duties for food or beverages, including cleaning tables; or
(d) receiving money; or
(e) attending a snack bar; or
(f) performing delivery duties; or
(g) taking reservations and greeting and seating guests.
AA.2.3 In addition to the duties set out in AA.2.1 and AA.2.2, means an employee who has
the appropriate level of training, and who is engaged in specialised non-cooking duties
in a kitchen or food preparation area.
AA.3 Restaurant/Café Worker Grade 2
AA.3.1 Means an employee who has the appropriate level of training and is engaged in any of
the following:
[2021] FWCFB 4149
43
(a) supplying, dispensing or mixing liquor; or
(b) assisting in the cellar; or
(c) undertaking general waiting duties for both food and liquor, including cleaning tables;
or
(d) receiving money; or
(e) assisting in the training and supervision of food and beverage attendants of a lower
classification; or
(f) delivery duties; or
(g) taking reservations and greeting and seating guests; or
(h) cooking duties such as baking, pastry cooking or butchering.
AA.3.2 In addition to the duties set out in AA.3.1, means an employee who has the appropriate
level of training, which may include a supervisory course, and who has responsibility
for the supervision, training and co-ordination of kitchen attendants of a lower
classification.
AA.4 Restaurant/Café Worker Grade 3
AA.4.1 Means an employee who has the appropriate level of training, which can include a
supervisory course, who:
(a) carries out specialised skilled duties in a fine dining room or a restaurant; or
(b) has responsibility for the supervision, training and co-ordination of food and beverage
staff or for stock control for one or more bars.
NOTE: To avoid any doubt, an employee classified in one of the classifications set out in this
Schedule shall perform all the duties of the classification as required by the employer.
AA.5 Chef stream
AA.5.1 Chef grade 1 (tradesperson) means a commi chef or equivalent who has completed an
apprenticeship or passed the appropriate trade test or who has the appropriate level of
training, and who is engaged in cooking, baking, pastry cooking or butchering duties.
AA.5.2 Chef grade 2 (tradesperson) means a demi chef or equivalent who has completed an
apprenticeship or passed the appropriate trade test or who has the appropriate level of
training and who is engaged to perform general or specialised cooking, butchering,
baking or pastry cooking duties or supervises and trains other cooks and kitchen
employees.
AA.5.3 Chef grade 3 (tradesperson) means a chef de partie or equivalent who has completed
an apprenticeship or passed the appropriate trade test or who has the appropriate
[2021] FWCFB 4149
44
level of training in cooking, butchering or pastry cooking and who performs any of
the following:
(a) general and specialised duties, including supervision or training of kitchen employees;
or
(b) ordering and stock control; or
(c) supervising other cooks and kitchen employees in a single kitchen establishment.
2. By inserting Schedule R as follows:
Schedule R - Award flexibility for COVID-19 Pandemic Recovery
R.1 The provisions of Schedule R are aimed at preserving the ongoing viability of
businesses and preserving jobs during the COVID-19 pandemic and do not set any
precedent in relation to award entitlements after its expiry date. Schedule R operates
from 11 August 2021 until 10 August 2022. The period of operation can be extended
on application to the Fair Work Commission.
R.2 During the operation of Schedule R, the following provisions apply:
R.3 Exemption Rate
NOTE 1: Exemption rate agreements under clause R.3 only apply to full time employees paid
at Level 5 or 6 rates of pay. This clause does not apply to Level 1 to 4 employees.
NOTE 2: Under the NES (see section 62 of the Act) an employee may refuse to work
additional hours if they are unreasonable. Section 62 sets out factors to be taken into account
in determining whether the additional hours are reasonable or unreasonable.
R.3.1 An employer and a full time employee (paid at the Level 5 or Level 6 rate of pay) may
enter into an agreement to pay the employee no less than 170% of their relevant Level
rate of pay each week as set out in clause 18—Minimum Rates of this award (the
Exemption Rate).
R.3.2 Where an agreement to pay the Exemption Rate has been made, the following clauses
of this award shall not apply:
(a) clauses 16.5 and 16.6 (meal break);
(b) clause 21 (allowances);
(c) clause 23 (overtime rates) but not clause 23.2; and
(d) clause 24 (penalty rates).
R.3.3 Where an agreement has been made to pay an employee the Exemption Rate the
employee must be paid the Exemption Rate for each hour worked up to and including
[2021] FWCFB 4149
45
57 hours in a week and for hours worked in excess of 57 hours in a week the employee
must be paid:
(a) 150% of the Exemption Rate for the first two hours in excess of 57 hours in the week;
and then
(b) 200% of the Exemption Rate thereafter in the week.
R.3.4 The Exemption Rate shall be the rate for the purposes of calculating:
(a) personal leave; and
(b) annual leave.
R.3.5 Clause R.3 does not apply to employees classified under the administrative and
general stream (Schedule A.4).
R.4 Classification Structure and Definitions
R.4.1 Subject to clause R.4.2 an employer may elect to classify all relevant employees in
accordance with the classifications set out in Schedule AA in substitution for
classifying the employee in accordance with Schedule A.
R.4.2 An employee who is classified in accordance with Schedule AA shall be paid the
minimum rate for the relevant classification in Schedule AA as set out in the table
below in substitution for the minimum rates set out in clause 18—Minimum Rates of
the award that would otherwise apply:
Column 1
Employee Classification
Column 2
Employee stream and
grade
Column 3
Minimum weekly
rate
(full-time
employee)
Column 4
Minimum hourly
rate
$ $
Restaurant/Café Stream
Level 2 Grade 1 - Restaurant/Café
Worker
805.10 21.19
Level 3 Grade 2 - Restaurant/Café
Worker
832.80 21.92
Level 5 Grade 3 - Restaurant/Café
Worker
932.60 24.54
Chef stream
Level 4 Grade 1 - Chef 877.60 23.09
Level 5 Grade 2 - Chef 932.60 24.54
Level 6 Grade 3 - Chef 957.60 25.20
[2021] FWCFB 4149
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R.5 Substitute Allowance
Subject to this clause:
R.5.1 an employer and an employee may enter into an agreement to pay the employee a
substitute allowance as below (the Substitute Allowance):
Column 1
Employee level
Column 2
Allowance per hour ($)
$
Introductory 1.60
Level 1 1.60
Level 2 1.02
Level 3 0.98
Level 4 0.90
Level 5 1.01
Level 6 1.08
R.5.2 an employer and at least 75% of the employees in the workplace concerned may agree
to pay all of the employees in the workplace a Substitute Allowance as below:
Column 1
Employee level
Column 2
Allowance per hour ($)
$
Introductory 1.60
Level 1 1.60
Level 2 1.02
Level 3 0.98
Level 4 0.90
Level 5 1.01
Level 6 1.08
R.5.3 Where an agreement to pay the Substitute Allowance has been made in accordance
with clause R.5, the following clauses of this award shall not apply:
(a) clauses 16.5 and 16.6 (meal break);
(b) clause 21.2 (meal allowance);
[2021] FWCFB 4149
47
(c) clause 21.3 (split shift allowance);
(d) clause 21.4 (tool and equipment allowance);
(e) clause 21.5 (special clothing allowance); and
(f) clause 21.6 (distance work allowance).
R.5.4 The Substitute Allowance shall be paid for all purposes of this award.
R.5.5 The Substitute Allowance is adjusted in accordance with increases to wages.
R.6 Manner of Application
R.6.1 To avoid any doubt, clauses R.3 to R.5 inclusive operate on the following basis:
(a) Exemption Rate (R.3): individual employer and full time employee agreement;
(b) Classification Structure and Definitions (R.4): employer election to apply to all
relevant employees in the workplace; and
(c) Substitute Allowance (R.5): individual employer and employee agreement or all
employees in the workplace collectively, if at least 75% of the employees agree.
R.7. Agreement to be recorded in writing
R.7.1 Individual agreements
Where an employer and employee enter into an agreement under clause Schedule R.3 or R.5 it
must:
(a) be in writing;
(b) specify, in writing, that either party may withdraw from the agreement by giving 4
weeks’ notice;
(c) be signed by the employer and the employee; and
(d) state the date the agreement commences operation.
R.7.2 Agreements with at least 75 per cent of employees
Where an employer and 75% of their employees enter into an agreement under clause R.5.2 it
must:
(a) be in writing;
(b) be signed by at least one of the employees; and
[2021] FWCFB 4149
48
(c) state the date the agreement commences operation.
R.8 Termination of Agreement
R.8.1 Where an employer and individual employee enter into an agreement under clause
R.3, either party may terminate that agreement by giving the other party no less than 4
weeks’ notice in writing.
R.8.2 Where an employer and individual employee enter into an agreement under clause
R.5.1 either party may terminate that agreement by giving the other party no less than
4 weeks’ notice in writing.
R.8.3 Agreements made under clause R.5.2 can be terminated by 50% plus one of the
employees being covered by the agreement serving 4 weeks’ notice on the employer in
writing.
R.9 Consultation
R.9.1 Prior to initiating any of the provisions in clauses R.3 to R.5, the employer must
consult with all employees affected by the proposed change and their representatives
(if any).
R.9.2 For the purpose of the consultation, the employer must:
(a) Provide to the employees and their representatives (if any) information about the
proposed change (for example, information about the nature of the change and when it
is to begin); and
(b) Invite the employees to give their views about the impact of the proposed change on
them (including any impact on their family or caring responsibilities) and also their
representative (if any) to give their views about that impact.
R.9.3 The employer must consider any views given under clause R.9.2(b).
R.10 Consent Arbitration
R.10.1 An employer who enters into an agreement under the provisions of Schedule R
provides consent to a dispute being settled by the Fair Work Commission through
arbitration in accordance with clause 34—Dispute resolution and section 739(4) of the
Act.
R.10.2 In arbitrating a dispute, the Fair Work Commission may:
(a) terminate an agreement made under Schedule R if it determines that it was not entered
into genuinely;
(b) terminate an agreement made under Schedule R if it determines that the employer
failed to consult as required by clause R.9;
[2021] FWCFB 4149
49
(c) require an employer to pay an employee the difference between what they were paid
under this Schedule and what they would otherwise have received under this award if
the Fair Work Commission determines that any agreement entered into under this
Schedule was unfair for an employee (including in circumstances where it is shown
that an employee would have earned more if an agreement under this Schedule had
not been entered into and the employee had been paid in accordance with the terms of
the award); and
(d) terminate an agreement made under Schedule R if the Fair Work Commission
determines that any agreement entered into under this Schedule was unfair for the
employee.
3. By updating the table of contents in the award accordingly.
B. This determination comes into operation on 11 August 2021. In accordance with
s.165(3) of the Fair Work Act 2009, this determination does not take effect in relation to a
particular employee until the start of the employee’s first full pay period that starts on or after
11 August 2021.
PRESIDENT
[2021] FWCFB 4149
50
Fair Work Act 2009
s.157—Application to vary a modern award to achieve the modern awards objective
Restaurant & Catering Industrial
(AM2021/58)
RESTAURANT INDUSTRY AWARD 2020
[MA000119]
Restaurants
JUSTICE ROSS, PRESIDENT
DEPUTY PRESIDENT CLANCY
COMMISSIONER BISSETT MELBOURNE, 21 JULY 2021
Restaurant Industry Award 2020 – Award flexibility for COVID-19 pandemic recovery –
Schedule R rate update resulting from the Annual Wage Review 2020–21.
A. Further to the decision [[2021] FWCFB XXXX] issued by the Fair Work Commission
on 14 July 2021, the above award is varied as follows:
1. By deleting the table appearing in clause R.4.2 and inserting the following:
Column 1
Employee
classification
Column 2
Employee stream and grade
Column 3
Minimum
weekly rate
(full-time
employee)
Column 4
Minimum
hourly rate
$ $
Restaurant/Café Stream
Level 2 Grade 1 - Restaurant/Café
Worker
825.20 21.72
Level 3 Grade 2 - Restaurant/Café
Worker
853.60 22.46
MA000119 PRXXXXXX
DRAFT DETERMINATION
[2021] FWCFB 4149
51
Column 1
Employee
classification
Column 2
Employee stream and grade
Column 3
Minimum
weekly rate
(full-time
employee)
Column 4
Minimum
hourly rate
$ $
Level 5 Grade 3 - Restaurant/Café
Worker
955.90 25.16
Chef Stream
Level 4 Grade 1 - Chef 899.50 23.67
Level 5 Grade 2 - Chef 955.90 25.16
Level 6 Grade 3 - Chef 981.50 25.83
2. By deleting the table appearing in clause R.5.1 and inserting the following:
Column 1
Employee level
Column 2
Allowance per hour ($)
(full-time employee)
$
Introductory 1.64
Level 1 1.64
Level 2 1.05
Level 3 1.00
Level 4 0.92
Level 5 1.04
Level 6 1.11
3. By deleting the table appearing in clause R.5.2 and inserting the following:
Column 1
Employee level
Column 2
Allowance per hour ($)
(full-time employee)
$
Introductory 1.64
Level 1 1.64
Level 2 1.05
Level 3 1.00
Level 4 0.92
[2021] FWCFB 4149
52
Column 1
Employee level
Column 2
Allowance per hour ($)
(full-time employee)
Level 5 1.04
Level 6 1.11
B. This determination comes into operation on 1 November 2021. In accordance with
s.165(3) of the Fair Work Act 2009, this determination does not take effect in relation to a
particular employee until the start of the employee’s first full pay period that starts on or after
1 November 2021.
PRESIDENT
