DETERMINATION

Fair Work Act 2009
s.156—4 yearly review of modern awards

4 yearly review of modern awards
(AM2017/49)

FAST FOOD INDUSTRY AWARD 2010
[MA000003]

4 yearly review of modern awards—Fast Food Industry Award 2010—substantive issues—award varied.

A. Further to the Full Bench decisions issued by the Fair Work Commission on 4 July 2019 [[2019] FWCFB 4679] and 1 October 2019 [[2019] FWCFB 6673], the Fast Food Industry Award 2010 is varied as follows:

1. By deleting clause 12 and inserting:

12. Part-time employees

12.1 A part-time employee is an employee who:

(a) works less than 38 hours per week; and

(b) has reasonably predictable hours of work.

12.2 At the time of first being employed, the employer and the part-time employee will agree, in writing, on a regular pattern of work, specifying at least:

(a) the number of hours worked each day;

(b) which days of the week the employee will work;

(c) the actual starting and finishing times of each day;

(d) that any variation will be in writing, including by any electronic means of communication (for example, by text message);

(e) that the daily engagement is a minimum of 3 consecutive hours; and

(f) the times of taking and the duration of meal breaks.

12.3 The employer and employee may agree to vary an agreement made under clause 12.2 in relation to a particular rostered shift provided that:

(a) any agreement to vary the regular pattern of work for a particular rostered shift must be recorded at or by the end of the affected shift; and

(b) the employer must keep a copy of the agreed variation, in writing, including by any electronic means of communication and provide a copy to the employee, if requested to do so.

12.4 In the event that no record of an agreed variation to a particular rostered shift under clause 12.3 is kept by the employer the employee is to be paid at overtime rates for any hours worked in excess of their regular pattern of work.

12.5 The employer and employee may agree to vary an agreement made under clause 12.2, in respect of the regular pattern of work on an ongoing basis or for a specified period of time, provided that any such agreement is recorded in writing (including by any electronic means of communication) before the variation occurs.

12.6 The employer must keep a copy of any agreement made under clause 12.2 and any agreed variation made under clause 12.4 and provide a copy to the employee.

12.7 An employer is required to roster a part-time employee for a minimum of 3 consecutive hours on any shift.

12.8 An employee who does not meet the definition of a part-time employee and who is not a full-time employee will be paid as a casual employee in accordance with clause 13—Casual employment.

12.9 A part-time employee employed under the provisions of this clause will be paid for ordinary hours worked at the rate of 1/38th of the weekly rate prescribed for the class of work performed. All time worked in excess of the hours as agreed under clause 12.2 or varied under clause 12.3 or 12.4 will be overtime and paid for at the rates prescribed in clause 26—Overtime.

2. By deleting clause 26.2 and inserting:

26.2 A full-time or part-time employee shall be paid overtime for all work as follows:

(a) in excess of:

(i) 38 hours per week or an average of 38 hours per week averaged over a four week period; or

(ii) five days per week (or six days in one week if in the following week ordinary hours are worked on not more than four days); or

(iii) eleven hours on any one day; or

(b) before an employee’s rostered commencing time on any one day; or

(c) after an employee’s rostered ceasing time on any one day; or

(d) outside the ordinary hours of work; or

(e) hours worked by part-time employees in excess of:

(i) the agreed hours in clause 12.2; or

(ii) in excess of the agreed hours as varied under clause 12.3, 12.4 or 12.5; or

(f) any hours worked by a part-time employee in excess of their regular pattern of work in circumstances where there is no written record of an agreed variation to a particular rostered shift.

3. By deleting clause 27.1(d) and inserting:

(d) The time of taking rest and meal breaks and the duration of meal breaks form part of the roster and are subject to any agreement reached under clause 12.2 regarding a part-time employees’ regular pattern of work. An agreed variation pursuant to sub-clauses 12.3 or 12.4 may include a variation to the time of taking rest and meal breaks.

4. By updating cross-references accordingly.

B. This determination comes into operation from 11 October 2019. In accordance with s.165(3) of the Fair Work Act 2009 this determination does not take effect until the start of the first full pay period that starts on or after 11 October 2019.

PRESIDENT

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