[2009] AIRCFB 826

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AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

DECISION

Workplace Relations Act 1996
s.576E—Procedure for carrying out award modernisation process
Request from the Minister for Employment and Workplace Relations—28 March 2008

Award Modernisation
(AM2008/25-63)

JUSTICE GIUDICE, PRESIDENT
VICE PRESIDENT LAWLER
VICE PRESIDENT WATSON
SENIOR DEPUTY PRESIDENT WATSON
SENIOR DEPUTY PRESIDENT HARRISON
SENIOR DEPUTY PRESIDENT ACTON
COMMISSIONER SMITH







MELBOURNE, 4 SEPTEMBER 2009

CONTENTS

 

Paragraph

   

Introduction

[1]

   

Stage 3 industries/occupations

[7]

   

[8]

[17]

[19]

[39]

[52]

[54]

[56]

[63]

[90]

[100]

[106]

[107]

[117]

[147]

[151]

[163]

[167]

[169]

[209]

[210]

[211]

[212]

[213]

[224]

[226]

[230]

[232]

[237]

[240]

[249]

[255]

[263]

[270]

[275]

   

Other Matters

[277]

   

Conclusion

[285]

   

Attachment A—List of Stage 3 modern awards

  

INTRODUCTION

[1] This decision deals with the award modernisation process and in particular the Stage 3 modern awards. The decision should be read in conjunction with earlier decisions concerning award modernisation. The process is being carried out pursuant to statutory provisions and a request made by the Minister for Employment and Workplace Relations (the consolidated request). To avoid repetition, we do not intend to set out the relevant statutory provisions again. They are, in brief, the provisions of the Workplace Relations Act 1996, (the WR Act) in particular those found in Part 10A, and the provisions of Schedule 5 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Transitional Act), in particular item 2(5). It is necessary to make some brief comment concerning the consolidated request.

[2] The consolidated request, originally made on 28 March 2008, has been varied on a number of occasions, most recently on 26 August 2009. That variation to the request deals principally with modern awards made in the priority stage and Stage 2 of award modernisation and transitional provisions. Although there has not been an opportunity for us to consider any views about the significance of the variation for the making of Stage 3 awards, we have proceeded on the basis that the variation has no direct relevance to the matters dealt with in this decision.

[3] In its decision making the Stage 2 modern awards the Commission referred to and set out some of the statutory and other provisions which guide the Commission in the modernisation process. 1 To these should now be added the terms of item 2(5) of Schedule 5 to the Transitional Act mentioned above. We emphasise that in all cases we have attempted to produce a modern award which properly takes all of the relevant criteria, objectives and other matters into account. In this context we repeat what the Commission said in its decision concerning transitional provisions on 2 September 2009:

[4] This passage reflects our approach to modernisation and also indicates the importance of transitional provisions in cushioning the impact of changes. We have taken into account all of the submissions as to cost and disadvantage, including those based on item 2(5) of Schedule 5 to the Transitional Act. Any economic impact on an industry flowing from a modern award must be assessed against the totality of the provisions in the award, including the transitional provisions. We shall announce a process in due course for the inclusion of the model transitional provisions in the Stage 3 modern awards and any additional provisions which may be required, consistent with the Commission’s 2 September 2009 decision.

[5] One proposal was received, dated 20 August 2009, requesting the Commission to provide an opportunity for parties to modern awards made in the priority stage and Stages 2 and 3 to make further submissions on the significance of the variation to the consolidated request made on 2 May 2009 and item 2(5) of Schedule 5 to the Transitional Act. The proposal listed a number of areas for specific consideration. In view of the timing of this proposal and its potentially broad scope we do not intend to adopt it. It would also require us to seriously compromise the program for the completion of award modernisation. All of the matters raised can be dealt with by one or more applications to vary modern awards. We emphasise, however, that parties have not been restricted in the material to which they can refer in the proceedings to date and all of the submissions, proposals and material which have been advanced as to the contents of modern awards have been taken into account. As we indicated in our statement of 26 June 2009, review or variation of the substantive terms of modern awards should be dealt with by an application to vary. 3

[6] Previous statements and decisions have used the statutory language appearing in the WR Act. In particular, pre-modern award instruments have been referred to as pre-reform awards, Notional Agreements Preserving State Awards (NAPSAs) and so on. The Transitional Act employs a range of replacement terms such as award-based transitional instrument. In the part of the decision which follows we have generally used the earlier terminology, reflecting the language used in the submissions and proposals under consideration.

STAGE 3 INDUSTRIES/OCCUPATIONS

[7] We now make the Stage 3 modern awards as identified and described below. We shall deal with each award by reference to its industry classification, following the order in which the exposure drafts were dealt with in our statement of 22 May 2009. 4

Airline operations

Air Pilots Award 2010

[8] The parties have requested that a number of agreed provisions which were omitted from the exposure draft should be reinserted. The provisions include highly prescriptive clauses which we would expect belong more in enterprise agreements rather than a minimum safety net award. Nevertheless we have decided to include agreed provisions regarding additions to salary, Civil Aviation Safety Authority (CASA) drug testing, suspension of employees, commission payments on termination of employment, splitting of meals and accommodation provisions, pilot indemnity and some other corrections and minor variations sought by the parties.

[9] Given the strong opposition by the Australian Federation of Air Pilots (AFAP) we have decided not to amend the definition of ‘home base and ‘permanent base.’ In our view such matters cannot be fully considered without an opportunity for all those affected to present a comprehensive case.

[10] We have decided not to deal in the award with the interaction between award provisions and CASA approval and exemption for rostering arrangements. The parties had divergent views about the legal effect of such provisions and they have not been a feature of existing awards.

[11] We have also rejected submissions to reduce the minimum classification rate as this would take the rate below the federal minimum wage.

Aircraft Cabin Crew Award 2010

[12] The parties agreed on a number of variations which we have reflected in the final award. A large number of variations sought were justified by reference to an award which only applied to one employer – either Qantas or an airline which has since gone out of existence, Ansett Airlines. In general we have not had particular regard to the contents of enterprise awards.

[13] On the question of hours of work for domestic and international flying there was considerable debate as to the appropriate number of weekly hours. The employers submitted that the annual equivalent of a 38 hour week (1976 hours) is appropriate and is currently the limit applying to low cost airlines established in recent years. It appears however that practices do not reflect this level of working hours although they could if traffic increases. We have decided that a lesser figure of 1872 hours (a 36 hour week) is more reflective of current practices and award provisions in this area of employment.

[14] A number of increased entitlements were sought by the Flight Attendants’ Association of Australia (FAAA). We do not consider that a sufficient case has been made out for their inclusion.

Airline Operations – Ground Staff Award 2010

[15] Various modifications have been made to the exposure draft as a result of the submissions of the parties. The clauses affected relate to the definition of the airline industry the exclusion of planning, drafting and technical officer classifications, the insertion of stores classification definitions, the limitation of indemnity provisions to maintenance engineering classifications, grouping of allowances along classification lines, allowing 12 hour shifts by agreement and various other simplifications and corrections.

[16] We have decided not to amend the classification structure to reflect the structure of the Manufacturing and Associated Industries and Occupations Award 2010 (Manufacturing Modern Award). 5 The structure in the modern award is consistent with existing airline industry structures.

Airport operations (other than Retail)

Airport Employees Award 2010

[17] We have made changes to the superannuation provisions, classification structure and scope clause in this award together with some more minor corrections. Other changes sought which are not consistent with standard modern provisions have not been made.

[18] The award largely reflects the terms of an existing federal award modified by limited agreed items and our standard approach to certain award matters. The parties generally did not seek changes to the existing provisions. We remain of the view that due to its history the award is overly prescriptive and could be simplified much further. This should be considered in future reviews of modern awards.

Aluminium industry

Aluminium Industry Award 2010

[19] The aluminium industry is characterised by enterprise awards and NAPSAs: there are no awards or NAPSAs that apply to multiple employers. All aluminium industry employers were represented by a single firm of solicitors and styled themselves “Aluminium Industry Parties”. We will refer to them as the “employer group”. The Australian Workers Union (AWU) was the lead union for the aluminium industry albeit that a number of other unions made submissions.

[20] A number of proposed changes to the definitions in the exposure draft were agreed. Others were not agreed. We have added words to the definition of “afternoon shift” to exclude 12 hour shiftworkers, as sought by the employer group, to allow for reasonable flexibility in the commencement of 12 hour shifts. In particular, we think it a reasonable flexibility that an employer be able to start the day shift in a 12 hour shift roster at 7am without attracting afternoon shift penalties. There is some substance in the employer group criticisms of the definition of roster cycle. We have decided to omit the definition altogether. The concept of a roster cycle is well understood and does not need to be defined. In a similar vein, the definition of “shift work” is unnecessary and has been omitted. We are not persuaded that there is any need for a change to the definition of “shiftworker”. We have not added a definition for “work cycle”. That expression is used in only one clause and its meaning is clear from the words of that clause.

[21] The word “melting” was added to cl.4.2(b) with the agreement or non-opposition of all industry parties.

[22] One of the most contentious issues was where the line should be drawn between the aluminium industry and the electrical power industry and the proper form of words to effect that demarcation. In particular, there was considerable debate over the extent to which the generation of power for use in aluminium smelters and other aluminium industry establishments should be regarded as being within the aluminium industry.

[23] We have varied the wording of cl.4.2(c)(i) of the exposure draft but have not adopted the form of words suggested by either the employer group or the combined unions. We note the extensive submissions of the Construction, Forestry, Mining and Energy Union, Mining and Energy Division (CFMEU(M&E)) in relation to co-generation within Australia and within the aluminium industry in particular. Although we accept the general thrust of the CFMEU(M&E) submissions that would see large stand-alone power stations as properly being within the electrical power industry, we are concerned that the form of words proposed by the combined unions may have unintended consequences of the sort identified by counsel for Australian Federation of Employers and Industries (AFEI) during the oral consultations. We have modified the form of words used in the exposure draft and included that same modified form of words in the Sugar Industry Award 2010 where identical issues arise. When cl.4.2(c)(i) comes to be construed, proper emphasis needs to be placed on what is “ancillary” or “incidental” to the “employer’s activities in cll.4.2(a) or (b)”. It is unlikely that the generation of power in a stand-alone power station that ordinarily supplies a significant portion of its output into the grid would come within the inclusion in cl.4.2(c)(i). If such a power station was operated by an employer who also operated an aluminium smelter the employer would prima facie be in the electrical power industry so far as the power station was concerned. Of course, each case will turn on its own facts.

[24] On balance, we have decided to maintain the inclusion of embedded contractors in cl.4.2(d). That inclusion is quite limited because it only applies to a contractor in relation to employees engaged in the specified activities and “principally employed to perform work on an ongoing basis” at an aluminium industry establishment. Clause 4.2(d) is not intended to cover contractors who place employees at an aluminium industry establishment during the period of a maintenance shutdown. However, to remove any scope for argument on this point we have added a note to cl.4.2 to make it clear the inclusion in cl.4.2(d) does not extend to such contractors and their employees. We were not persuaded by submissions that sought the incorporation of classifications from the Manufacturing and Associated Industries and Occupations Award 2010 (Manufacturing Modern Award) or the Electrical, Electronic and Communications Contracting Award 2010 6 for contractor employees included within coverage by cl.4.2(d).

[25] We have accepted the proposal of the employer group (with some minor modification) in relation to a separate subclause for exclusions, now cl.4.3. We note that that proposal was supported or not actively opposed by the relevant unions. We also note that some employees excluded by cll.4.3(d) and (e) will be covered by the occupational operation of the Manufacturing Modern Award. We note also that we modified the exclusion in what is now cl.4.3(d) to exclude only “senior” supervisors on the basis that some employees who could be described as “supervisors”, for example, leading hands, will be covered by the Aluminium Industry Award 2010.

[26] The coverage exclusion in cl.4.3(a) requires some comment. That exclusion is in the following terms:

[27] The Australian Industry Group (AiGroup) proposed an amendment to the Manufacturing Modern Award coverage clause to effect an inclusion for what was described in the exposure draft as “downstream” manufacturing involving aluminium. The form of words proposed by AiGroup would have created its own problems including, in particular, circularity of exclusions as between the two awards and, on one view, the exclusion of technical employees in the aluminium industry from award coverage altogether – a result that is not intended by any of the aluminium industry parties.

[28] We do not think that any amendment to the Manufacturing Modern Award is required. Certain activities and employees are excluded from the coverage of the Aluminium Industry Award 2010. The broad definition of what constitutes manufacturing in the Manufacturing Modern Award will pick up all “downstream” aluminium manufacturing not covered by the Aluminium Industry Award 2010 because the exclusion in cl.4.3(a) is expressed by reference to the operation of the Manufacturing Modern Award in relation to “other manufacturing operations and activities of employers” covered by that award. The occupational coverage of the Modern Manufacturing Award will operate in relation to excluded employees whom it is agreed by the industry parties ought be covered by it.

[29] We do not propose to comment on every change made to the exposure draft. There was merit in many of the suggestions made by the employer group (a number of which were not opposed by the unions) and we have adopted many of those suggestions for the reasons advanced by the employer group. We have rejected some of the employer group suggestions for the reasons advanced by the unions or because we are unpersuaded that the change proposed is appropriate. A number of suggestions proposed by the unions have also been adopted.

[30] In relation to casual employment, apart from some non-contentious changes to cl.10.4(a) we are not persuaded that the changes sought by the employer group should be made. We have included provision for juniors notwithstanding the opposition of the AWU. We have inserted the clause proposed by the employer group.

[31] We have included the standard superannuation clause and named Westscheme Pty Ltd (Westscheme) as a default fund. As noted, the aluminium industry is characterised by enterprise awards and NAPSAs. Westscheme is apparently the only fund named in any of the awards and NAPSAs in this industry.

[32] In relation to hours of work, we have adopted the employer group suggestion for changes to cl.18.2(d) of the exposure draft, to which there was no opposition from the unions, but have varied the wording of the proposed change to prevent an inconsistency between the terms of the clause as varied and the entitlement of a non-shiftworker to an unpaid meal break of 30 minutes every five hours. We have not made the changes sought by the employer group to cl.18.3 of the exposure draft. We have, however, made the maximum hours limitation in that clause subject to the right of the employer to require reasonable handover work.

[33] In relation to rostering, we have omitted cl.18.4 of the exposure draft on the basis the clause limited flexibility in circumstances where adequate protection is provided by the provisions dealing with breaks between shifts. However, we have rejected the employer group’s suggestions for changes to cll.18.5 and 18.6 of the exposure draft. The rejection of those suggestions should not be interpreted as an indication that continuous rostering is not available under the award. The award is intended to encompass operations being carried out 24 hours per day, seven days per week.

[34] We note that cl.19.4 has been included by consent between the industry parties.

[35] We are not persuaded by the employer group arguments in relation to the clause dealing with rest period after overtime, now cl.21.4. However, we have added paragraph (d) to that clause allowing for a break between shifts of eight hours rather than 10 hours by agreement with an individual employee.

[36] We accept the union submission that a critical mass exists in the underlying awards and NAPSAs for an annual leave loading of 20% rather than 17.5% and have amended the annual leave clause accordingly. However, we are disinclined to supplement the National Employment Standards (NES) entitlement to compassionate leave notwithstanding that most of the underlying awards contain an entitlement to compassionate leave that is greater than the NES standard.

[37] While we have accepted the employer group proposal to vary the subclause relating to an employer’s entitlement to require an employee to take excessive leave, now cl.22.6, we have inserted words that ensure an appropriate leave balance is retained.

[38] In relation to the classification descriptions in Schedule A, we note that there was agreement between the employer group and the unions in relation to the descriptions for levels 1 to 5 but no agreement on the descriptions for levels 6 to 8. We have adopted the classification descriptions proposed by the employers. We note the absence of any detailed post-exposure draft submissions from any of the relevant unions in relation to the classification descriptions for levels 6 to 8. The CFMEU (M&E) has proposed a review of the classifications on a work value basis at some appropriate point. We think that would be desirable.

Cement and concrete products (including asphalt and bitumen industry)

Asphalt Industry Award 2010

[39] We have retained roadmaking within the coverage clause of the award. Roadmaking, in this context, is intended to comprehend those elements of roadmaking associated with the asphalt industry and undertaken by employers within the industry as defined. Other roadmaking activity, undertaken by employers within the civil construction sector of the building, engineering and civil construction industry, will fall within the coverage of the Building, Engineering and Civil Construction Industry General On-site Award 2010. 7

[40] The only major change made to the exposure draft reflects our acceptance of the skills based classification structure jointly proposed by Boral and the AWU from the Asphalt and Bitumen Industry (Southern States) Award 1999 8 in place of the classification structure in the exposure draft. The “in charge of plant” allowance, which is now comprehended in skill level 5 in the classification structure, has been deleted as a separate allowance from the exposure draft.

[41] Minor amendments have been made to the rostered day off provision in cl.20.2(c) and the close down provision in cl.24.4, in accordance with the joint position of Boral and the AWU.

Cement and Lime Award 2010

[42] In our statement of 22 May 2009, 9 accompanying the publication of the exposure draft, we invited comment on the appropriateness or otherwise of the incorporation of the cement and lime industry within the Quarrying Award 2010.10 There was no support in the post-exposure draft consultations for such an outcome. Boral and the AWU continued to support the making of a separate modern award for the cement and lime industry. We accept that position and will make a separate cement and lime industry modern award.

[43] We have made several amendments to the exposure draft, each of which was jointly supported by Boral and the AWU.

[44] First, we have removed blast furnace slag from the definition of the industry in cl.3.1 to meet the concern expressed about an unintended incursion into the activities of the steel manufacturing industry.

[45] Second, we have included a casual conversion provision in similar terms to that contained in other modern awards in the asphalt, concrete and cement industries.

[46] Third, we have included the minimum rates jointly proposed by Boral and the AWU in cl.14. The rates proposed, which have been reduced at the lower classification levels and increased at the higher classification levels, better reflect the classification descriptors and properly reflect minimum rates within other modern awards.

[47] Fourth, we have made minor modification to the level of the leading hand and first aid allowances as a percentage of the standard rate, with reduced percentages offsetting the slightly higher standard rate now contained in the modern award.

[48] Fifth, we have included an allowance compensating for work in wet weather.

[49] Finally, we have added Westscheme as a named default fund in the superannuation clause, in light of the naming of that fund in the Cockburn Cement Limited Award 1991 (WA) 11.

Concrete Products Award 2010

[50] Boral and the AWU supported the terms of the exposure draft. The only change we have made to the exposure draft is to slightly amend cl.16.3 to clarify the operation of the payment to be made in circumstances where an employee is unable to return home and is not provided with board and lodging by the employer. We have also added Westscheme as a named default fund in the superannuation clause for the reason indicated in respect of the Cement and Lime Award 2010.

Premixed Concrete Award 2010

[51] Boral and the AWU supported the terms of the exposure draft, save for a correction of an error in the exposure draft sought by them in respect of the specification of the standard rate for the purpose of work related allowances. We have made that correction. We have also added Westscheme as a named default fund in the superannuation clause for the reason indicated in respect of the Cement and Lime Award 2010.

Cemetery operations

Cemetery Industry Award 2010

[52] The Cemetery Industry Award 2010 is generally in the same terms as the exposure draft but with some changes.

[53] The hours of work clause has been amended to reflect the prevailing standard that ordinary hours are worked between Monday and Friday. The Leading Hand Allowance has been amended to exclude employees at levels 5 and 6. The definitions of Cemetery Employee Class 5 and 6 have been amended to reflect in part, the provisions of the Cemetery and Crematorium Employees’ Award – State – 2005. 12 The new definitions link the higher classifications to skills and training.

Coal treatment industry

[54] In our statement of 22 May 2009 13 we noted, in summary, that there is no coke works or other existing coal treatment operation in Australia that would be covered by a modern award for the coal treatment industry and that such an award would cover new entrants only. We indicated an inclination to amend the scope of the Manufacturing Modern Award to include coal treatment not covered by another modern award.

[55] Following the publication of our statement of 22 May 2009 we received no submission urging the Commission to make an award for the coal treatment industry or challenging the appropriateness of placing the production of coke within the scope of the Manufacturing Modern Award. The CFMEU(M&E) objected to the production of ‘Syngas’ being placed within the scope of that award. Syngas is a term that refers to a gas produced from coal processed on site through a number of technologies. It appears that those technologies remain experimental and that no commercial Syngas enterprise has yet been established (albeit that the CFMEU(M&E) has pointed to material suggesting that a commercial Syngas operation will be developed in the near future). The fact remains that we have almost no information on how commercial production will be undertaken or the nature of the work that will be performed by employees in the commercial production process. We are not inclined at this stage to apply black coal mining industry conditions to any Syngas industry that may emerge in the future. Nor are we persuaded that the production of Syngas should necessarily find a permanent home in the Manufacturing Modern Award. Rather, we think that this matter should be revisited if and when a commercial Syngas industry has been established. Parties can make appropriate application(s) if and when that circumstance comes to pass.

Educational services (other than Higher education)

Educational Services (Teachers) Award 2010

[56] The main changes relate to part-time employment where some conditions have been placed on the capacity of the employer to vary the days and hours of duty. Part-time employees will also now accrue experience for the purpose of determining prior service on a pro rata basis.

[57] In recognition that prior service is a factor in determining starting salary we have also made provision for a statement of service to be provided to an employee on termination of their employment.

[58] A new schedule has also been inserted to deal with hours of work of teachers employed in an early childhood service, operated by a school, which operates for more than 48 weeks per year, rather than in accordance with school terms.

Educational Services (Schools) General Staff Award 2010

[59] The most significant changes in the exposure draft are in the hours of work provisions. In response to concerns about the hours of boarding supervision services employees, where the current award coverage tends not to prescribe hours of work, we have made provision for the hours of work of these employees to be averaged over 12 months. There are also changes to the penalty provisions which would apply to these staff where hours are not averaged.

Educational Services (Post Secondary Education) Award 2010

[60] Changes have been made in the exposure draft to clarify coverage and to deal with the wages applicable to casual staff. In particular the range of duties and rates for casual academic teachers have been expanded, the rates payable to casual teachers and tutor/instructors have been corrected and the basis for calculating the hours of work of these employees has been adjusted.

[61] Other variations have been made to more closely align the provisions in relation to higher duties and overtime with awards applying in higher education. The rights of those staff who currently have an award entitlement to paid parental leave have been preserved.

[62] Provisions requiring casual teaching staff to be given notice of termination have been deleted. Where current awards contain such provisions parties may seek special transitional arrangements if thought necessary.

Electrical power industry

Electrical Power Industry Award 2010

[63] The fact that electrical power generation was once exclusively a public sector activity in each of the States and the Northern Territory, together with the trend to privatisation of power generation in recent decades, has led to a somewhat unusual situation in relation to state and federal awards. In particular, many if not most of the major employers in the industry are covered by enterprise awards or NAPSAs. There is no federal award that has application outside a single state or territory. There are only two federal awards, both in Victoria, that apply to more than one employer (albeit that all such employers are successors of the state electricity generator). There are industry NAPSAs in South Australia and Queensland. New South Wales is characterised by state enterprise NAPSAs (or, more accurately given the effect of state legislation passed in response to the WorkChoices legislation, preserved state agreements) although the number is small and, again, each of the main generators in New South Wales are successors of the state-owned generator. The particular history to which we have adverted has resulted in awards and NAPSAs with disparate terms and conditions. Although we have relied upon the non-enterprise Victorian awards, particularly the Power and Energy Industry Electrical, Electronic & Engineering Employees Award 1998 14 (QuadE Award), this is an industry where the particular circumstances make it appropriate to also have regard to the terms of enterprise awards and NAPSAs.

[64] We have already discussed, in the context of the aluminium industry, the contentious issue of the dividing line between the electrical power industry and other industries, including the aluminium and sugar industries, where employers often generate electrical power for the purposes of their activities that other industry and the form of words adopted to identify that dividing line. An equivalent form of words has been adopted to describe the generation and transmission of power and steam that is excluded from the electrical power industry.

[65] We have maintained the inclusion of embedded contractors within the coverage of the award. As noted in relation to the Aluminium Industry Award 2010, that inclusion is in truth quite narrow because it only applies to employees placed at an electrical power industry facility on an “ongoing” basis.

[66] The employer group objected to the inclusion of a casual conversion clause in the exposure draft. We agree with the employer group that such a provision is not a common feature of the underlying awards and it has been omitted.

[67] The employer group and combined unions engaged in constructive negotiations with a view to reaching agreement on minimum wages and an appropriate classification structure. Agreement was achieved and we have adopted the agreed provisions.

[68] We have adopted union proposals for an expanded clause in relation to apprentices and trainees. Those proposals were reasonable.

[69] The particular history of award regulation in the electrical power industry has resulted in a situation where there is little consistency in allowances. There was a measure of agreement between the employer group and the unions in relation to allowances but significant differences remained. We have not accepted union proposals for the creation of sector allowances covering the whole of the industry. In particular we are not persuaded that there should be a residual “industry” allowance for employees not in receipt of one of the other sector allowances. Such an allowance would cover employees who do not suffer any of the disabilities to which the other sector allowances are directed. We have generally maintained the categories of allowance provided for in the exposure draft albeit that we have adjusted the rate of several of those allowances in line with union suggestions, the unions having made good the proposition that the rates in the exposure draft were lower than the rates generally prevailing the in underlying awards and NAPSAs. To the extent that there are classes of employees in the industry who suffer disabilities that do not attract a relevant allowance, this is a matter that can be addressed in the first review of the award. In this context we note that collective agreements are ubiquitous in the electrical power industry and that the modern award will have little or no application before the time of that review.

[70] We have included a coal handling allowance for employees not entitled to either the open cut brown coal mine or briquette factory allowances on the basis that there are significant disabilities associated with handling coal and there are employees in South Australia and Western Australia who may not qualify for either of those allowances but who will still suffer the disabilities associated with handling coal.

[71] We have included a tool allowance although at a rate less than that sought by the unions. We have rejected a union suggestion for an electrical license allowance on the basis that such an allowance is not a common feature of the underlying awards and NAPSAs.

[72] The unions sought the inclusion of a travel allowance. The employer group did not oppose this in principle. There was a difference between the parties as to whether this should be on the basis of prepayment with acquittal or reimbursement upon production of receipts and invoices. We have adopted a partial prepayment model.

[73] We have not varied the period that must be worked in a higher classification before the employee becomes entitled to pay at the rate for that higher classification. The unions sought a shorter period and the employer group a longer period. We think the period in the exposure draft is adequate. We agree in principle with a union suggestion that employees working for an extended period on higher duties should be paid for leave at that higher rate. We think that three months at the higher classification is an appropriate qualifying period.

[74] We are not prepared to make provision for monthly pays as sought by the employer group. There is no such provision in any of the awards or NAPSA in this industry. This is something that should be bargained for.

[75] In relation to superannuation we have named all superannuation funds nominated for inclusion by both the combined unions and the employer group. 15

[76] We were not persuaded that there is any basis founded on the terms of industry awards and NAPSAs to increase the span of hours as sought by the employer group and we have not done so. The employer group is correct to point to the desirability of early starts in hot weather. We think that the appropriate way of providing flexibility to address that circumstance is to allow for a change to the span of hours by agreement with a majority of affected employees. The clause has been amended accordingly. A similar position obtains in relation to the maximum duration of roster cycles.

[77] We were not persuaded by the arguments of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) for a lower daily maximum of ordinary hours for dayworkers and shiftworkers other than 12 hour shiftworkers.

[78] We have largely adopted the CEPU’s suggestions for changes to the clauses in the exposure draft relating to availability duty and duty officers.

[79] There is little consistency between the various awards and NAPSAs in the electrical power industry in relation to breaks. We are not persuaded that it is appropriate to vary the incidence and duration of morning and afternoon tea breaks as sought by the employer group. Other changes to the relevant clause go some way to addressing other employer group concerns.

[80] We have made changes to reflect the largely agreed position of the industry parties in relation to working without a meal or crib break.

[81] In relation to breaks between shifts both the CEPU and the employer group sought amendments to the exposure draft that would, in certain circumstances, have reduced the minimum 10 hour break specified in the exposure draft although that they proposed different circumstances when this should occur. We have provided for a reduction in the minimum break between shifts in particular circumstances but we have not accepted fully the proposals of either side.

[82] In relation to overtime we agree with the suggestion by the employer group that there should be a distinction drawn between continuous and non-continuous shiftworkers for the purposes of overtime rates and that immediate double time should only be available to continuous shiftworkers. There was substantial agreement between the parties on the need to include a minimum payment clause.

[83] In relation to penalty rates, it will be evident that we have accepted some and rejected other proposals made by the employer group and the unions. The penalty rate for Saturday in the exposure draft was an error. The underlying awards and NAPSAs almost uniformly provide for a rate of 150%. We agree with the employer group that a distinction should be drawn between night shift and permanent night shift and that a penalty rate of 30% should only apply to permanent night shift.

[84] We have not accepted a union proposal for a penalty shifts clause where less than the required notice is given for a change of roster. Such a provision does not appear in a sufficient number of the underlying awards. The unions had previously sought a minimum of 72 hours notice for roster changes. In the exposure draft we accepted the employer proposal for a shorter period of 48 hours notice. Employers will be obliged to give 48 hours notice.

[85] We have included a time off instead of overtime provision at the suggestion of the CEPU and CFMEU on the basis that it is a relatively common feature in the underlying awards and NAPSAs. We have based the wording on the clause in the QuadE award.

[86] We have accepted an employer group proposal to remove cl.27.3 of the exposure draft on the basis that the additional supplementation of annual leave for continuous shiftworkers contained in that clause is only to be found in the QuadE award. We have accepted as reasonable a proposal by the CEPU to increase the amount of notice required for an employee to be directed to take excessive accrued annual leave.

[87] We are not persuaded by union suggestions that the additional personal leave entitlement provided for in the exposure draft should be further increased.

[88] The specification of a day as a public holiday is a matter for government. We are not prepared to increase the number of public holidays by a variation to the exposure draft as suggested by the unions.

[89] We have accepted union proposals for the inclusion of dispute resolution procedure training leave on the basis that a significant proportion of employees in the industry presently have access to such leave.

Entertainment and broadcasting industry (other than racing)

Sporting Organisations Award 2010

[90] We have noted the concerns of the Australian Municipal, Administrative, Clerical and Services Union (ASU) as to the classification descriptors and wage levels for clerical staff but have decided to largely retain the provisions of the existing federal award. In this regard we note that there is a two year review period for the award and any real concerns can be dealt with in a considered manner at that time. The award is in very similar terms to the exposure draft.

Amusement, Events and Recreation Award 2010

[91] We have not included any provisions concerning the interaction of this award with local government or State bodies. These are matters that will be dealt with at a later stage.

[92] A number of employers raised concerns about the penalty rates applicable under the exposure draft. These have been altered to a degree to better reflect the provisions of the AWU Theme Park and Amusement Award 2001 16 upon which the modern award is largely based. A number of the employers who raised concerns about the penalty rates are currently party to enterprise awards. These issues can be revisited at the time those awards are modernised.

[93] We have decided not to include the coverage of the Theatrical Employees (Showmen’s Guild) Award 2002 17 in the modern award. The current conditions under that award are sufficiently different to warrant a separate award. A modern award, which we shall tentatively title the Travelling Shows Award 2010, will be considered as part of Stage 4.

Live Performance Award 2010

[94] The award contains a number of provisions that were not in the exposure draft. These were largely agreed between the parties who contributed to the modernisation process. While we still hold concerns that a number of those provisions are not suitable for inclusion in a modern award, in light of the agreement between the employers and employee representatives we have decided to give effect to their views.

Broadcasting and Recorded Entertainment Award 2010

[95] We have included a number of provisions in this award relating to actors and motion picture production staff which were not in the exposure draft. The Media, Entertainment and Arts Alliance (MEAA) put strong submissions for the retention of provisions of the current awards which, to us, appear out of place in a modern award. However, as no other parties made any representations to exclude them, we have decided to include many of the provisions sought by the MEAA.

[96] We have deleted from the exposure draft provisions dealing with film and television distribution. It was put that this area could more adequately be dealt with through the clerical and administrative and warehousing and storage industries. If there is a case to be made for retention of specialised film and television distribution provisions a variation application could be made.

[97] As with the exposure draft, the modern award does not contain any provisions for motion picture laboratories. It was put that the modern award should contain such provisions as there is a current federal award for the area. 18 An examination of that award raises a number of questions. The classifications, for which there are no descriptors, were inserted when the award was made in 1978 and appear, on the face of it, archaic. The MEAA, who sought the inclusion of the provisions, did not indicate where in the modern award those classifications would properly be situated. Again, if there is a case to be made for the inclusions of these provisions, the variation process is available.

[98] Although we have taken into account the position put on behalf of commercial radio we are not convinced that there is a valid case for differentiating between the rates of pay of radio station employees on the basis of the audience population. Any significant increases in pay rates can be dealt with as part of the transitional process.

[99] As sought by the MEAA and the representative of the television networks, we have decided that the journalists’ salary scale should be based on the scale currently found in the television journalists award 19 and not, as was the case in the exposure draft, the radio journalists award.20 The television scale is very similar to the scale found in the Journalists Published Media Award 2010 and is, in our view, the more appropriate scale. We have retained the band classifications as currently found in the radio award and are confident that a transitional arrangement can be arrived at which will allay the concerns of the commercial radio employers about any wage increases that may result from the translation. Some adjustment to the wording contained in the description of the bands may be required.

Food, beverages and tobacco industry (manufacturing)

Food, Beverage and Tobacco Manufacturing Award 2010

[100] The definition of food, beverage and tobacco manufacturing in the exposure draft of the Food, Beverage and Tobacco Manufacturing Award 2010 (Food Modern Award) has been varied to include distilling and stock feed. It has been decided not to create a separate milling industry award given that there would be a large overlap in coverage between such an award and the Food Modern Award.

[101] A specific facilitative provision has been included in the award at the request of a number of parties and the proposed Level 7 in the classification structure has been deleted given the existence of leading hand allowances. The heavy vehicle driving allowance has been converted to an hourly rate. With respect to hours, an early morning shift with an appropriate penalty rate has been added to the modern award in recognition of the early start times required by some covered by it. The penalty rate has been set having regard to the underlying awards and NAPSAs. The existing annual bonus or Christmas allowance for some brewery and related employees has been included until the end of 2014 as has the existing annual leave bonus for such employees. Some changes have been made to the classification definitions to reflect the historical relativities and to update qualifications. No other changes have been made to the classification definitions bearing in mind discussions between the parties on the translation of existing classifications to the modern award structure.

[102] We have decided not to provide for other types of employment. Seasonal and other fixed term employment is not precluded by the types of employment in the modern award. In light of the underlying awards and NAPSAs, the casual conversion clause remains as it was in the exposure draft, as do the meal and rest breaks clauses. For similar reasons, we have not included dispute resolution training leave in the award. The reimbursement allowances sought have not been included as they are compensated through the classification structure.

[103] Other changes in terms and conditions arising from the making of this award may be dealt with through the transitional provisions for this award.

Seafood Processing Award 2010

[104] The exposure draft of the Seafood Processing Award 2010 has been amended to specifically exclude employees employed on oyster farms and those covered by the Fast Food Industry Award 2010 21, the General Retail Industry Award 201022 and the Hospitality Industry (General) Award 2010.23 Some minor changes to the classification structure definitions have also been made. These changes are designed to clarify the modern award’s operation. Further, a number of superannuation funds have been added to the superannuation clause. Other changes, which were sought by some parties, have not been adopted. The hours and penalty rates in the underlying awards and NAPSAs vary. Those in the modern award reflect an appropriate safety net. The application of the casual loading in the modern award reflects that in many of the pre-reform awards and NAPSAs. A facilitative clause has not been included in the modern award. Such a clause had the potential to introduce unnecessary complexity into the operation of the award’s facilitative provisions.

Poultry Processing Award 2010

[105] The definition of the poultry processing industry in the exposure draft has been amended to clarify that the modern award covers employers involved in the processing of uncooked poultry and those involved in the processing of cooked poultry where the cooking is incidental to the processing of uncooked poultry. Further, the modern award provides for ordinary hours to be worked up to 12 hours per day by majority agreement consistent with provisions in the underlying award and NAPSAs. Additional allowances beyond those in the exposure draft have not been included in the award having regard to the classification definitions and the allowances already provided.

Grocery products manufacture

[106] The manufacturing of food will mainly be covered by one of the three modern awards dealt with in food, beverages and tobacco industry (manufacturing). Any remaining area will be covered by the Manufacturing Modern Award.

Journalism

Journalists Published Media Award 2010

[107] The exposure draft has been modified having regard to the written and oral submissions made by the parties. Substantive submissions were received in relation to the exposure draft from News Limited, ACP Magazines, Pacific Magazines and Text Pacific (the employers), Country Press Australia (CPA) and MEAA. We refer only to the changes which appear to be significant.

[108] Certain editorial positions have been exempted from coverage. The exemptions were generally supported by all parties. The only exception was that MEAA did not expressly support the exemption for senior positions in on-line publications. Given that such publications are not currently covered by an award it is appropriate to exclude them also.

[109] All three parties pointed out that the published media industry has a long history of exempting certain editorial positions from award coverage. This is reflected in a wide range of pre-reform awards and NAPSAs. Specific reference was made to a decision of a Full Bench of the Commission in 1984 24 which maintained the exemptions at the time, noting the long history of journalists’ awards having exemptions for senior editorial positions from the application of those awards. The Commission at the time confirmed that it was appropriate for senior editorial staff who had managerial or executive functions to be exempt from award coverage. The manner in which this principle has been implemented has been generally consistent across the various sectors of the industry, reflecting the agreed position between publishers and the MEAA regarding the types and number of positions appropriate to be exempted in a particular sector or market.

[110] The employers pointed out that there is an apparent inconsistency between the way full-time employees employed on on-line publications are treated with regard to the application of the hours provisions in Part 5 of the modern award, and the way part-time and casual employees are treated. This was unintentional and a provision along the lines proposed by the employers has been inserted to clarify, in relation to on-line publications, that part-time and casual employees are treated the same as full time employees with regard to hours of work.

[111] MEEA submitted that cl.4.6(b), which exempts employees on specialist publications from Part 5 of the modern award dealing with hours of work be deleted on the grounds that such employees currently have such entitlements. In our view Part 5 is much more prescriptive than the current hours provisions for employees on specialist publications and should not apply to those employees. Instead we have included a special hours provision for employees in specialist publications, based on the current arrangements for such employees.

[112] The employers and the CPA have pointed out that the exposure draft was worded in such a way as to remove the grading ‘cap’ for new employees employed on country non-daily newspapers etc. This was a drafting oversight and has now been corrected by the insertion of a provision along the lines proposed by the employers.

[113] CPA pointed out that the exposure draft increases the maximum time allowed for a paid meal break for country non-daily newspapers and regional daily newspapers to “less than one hour” – as opposed to the current 30 minutes. We have made an appropriate variation to cl.20 to accommodate the existing position.

[114] The employers have submitted that the higher duties allowance included at cl.16 of the exposure draft should be removed as such higher duties allowances are not generally contained in existing federal awards and NAPSAs. Those that do contain such allowances are not consistent and usually require an employee to be undertaking the higher duties for an extended period of time, longer than one week. In addition, awards have always included flexible classification structures, allowing journalists to deal with news stories at short notice and gain additional experience. In light of these submissions we have altered the provisions. The higher duties allowance provided for in the exposure draft only applied where an employee was called upon to do the work of another for more than a week. The provision has been altered so that it only applies when higher duties are performed for more than a fortnight.

[115] MEAA submitted that “wire service” should be added to the list of areas where an employee is entitled to the 17.5% shift penalty for working between 8:30 pm and 6:00 am. We have made an appropriate amendment.

[116] The employers requested that a provision allowing for the cashing out of annual leave be included in the modern award, reflecting the same arrangement as provided for in the Fair Work Act 2009 (Fair Work Act). Journalists receive more than the standard amount of annual leave and tend to accrue large amounts. The cashing out of annual leave is apparently a common request by employees. Nevertheless we have decided not to include a provision for cashing out of annual leave, consistent with our earlier decisions.

Licensed and registered clubs

Registered and Licensed Clubs Award 2010

[117] There are a significant number of changes resulting from submissions and proposals made in relation to the exposure draft. We have decided to adopt the integrated minimum rates provision suggested by Clubs Australia, incorporating the maintenance and horticultural employees, both non-managerial and managerial, into the existing structure at the levels they proposed. We have applied the rates for managerial classifications from the Liquor and Accommodation Industry - Licensed Clubs - Managers and Secretaries – Award 2002, 25 updated since 2005. They vary marginally from those proposed by Clubs Australia, as a result of differences in the method of calculating annual salaries. The rates for managerial classifications replace those in the exposure draft, drawn from the parties’ drafts which appear to have been drawn from the Liquor and Accommodation Industry - Licensed Clubs - Managers and Secretaries (A.C.T) Award 2003 (ACT club managers award).26

[118] We have applied the exemption provisions within the exposure draft to all managerial positions, including the maintenance and horticultural managerial classifications, reflecting a two level exemption process. We have applied 20% at the first exemption level, reflecting the terms of the major federal award for club managers. 27 We have also included an exemption provision for maintenance and horticultural managerial classifications in the terms of the New South Wales Bowling and Golf Clubs Employees (State) Award.28

[119] We have amended the coverage clause to exclude golf professionals, in the compromise terms agreed between the Liquor, Hospitality and Miscellaneous Union (LHMU) and the Professional Golfers’ Association (PGA). We have also excluded from coverage of the award thoroughbred, harness, trotting and greyhound racing clubs and their employees in relation to operations covered by the Racing Clubs Events Award 2010 29 and employers and their employees covered by the Racing Industry Ground Maintenance Award 2010.30

[120] The Australian Golf Course Superintendents’ Association filed a submission on 6 July 2009, addressing possible overlap between this award and any modern award which might arise from the Stage 4 consideration of gardening services and the adequacy of coverage, in either case, of golf course superintendents. We have decided that these issues should be considered in the context of the gardening services industry, with any amendment to the licensed clubs award, if necessary, being undertaken at that time.

[121] We have amended the exposure draft to incorporate changes agreed between the AWU and Clubs Australia in relation to maintenance and horticultural employees in relation to:

[122] We have not included the provision in respect of blood tests for horticultural employees proposed by the AWU and drawn from a New South Wales NAPSA. It is not a common provision within existing awards and NAPSAs.

[123] In relation to superannuation the exposure draft provides for a threshold of $350 income before superannuation is payable, which is more beneficial than the $450 threshold in the superannuation legislation. The $350 threshold appears in the Licensed Clubs (Victoria) Award 1998 (Victorian clubs award) 31, the Liquor Industries Hotels, Hostels, Clubs and Boarding Establishments etc. (Australian Capital Territory) Award, 199832 (the ACT clubs award) and a lesser threshold, $250, appears in the Hotels, Clubs, Etc., Award (SA).33 Elsewhere the legislated threshold of $450 applies. The weight of existing regulation clearly supports the deletion of cl.23.2(b) of the exposure draft.

[124] We have retained sub-cl.23.5 of the superannuation provision, dealing with payment during absences on injury, reflecting the common position between the major employer and employee representatives.

[125] An issue arose between the LHMU and Clubs Australia in relation to cll.10.5(d) and 17.4 of the exposure draft, which identified and prescribed specific wage rates for casual employment at sports grounds in Victoria. That provision in the exposure draft came from the Victorian clubs award. Clubs Australia submitted that the provision should be retained only as a transitional provision in respect of Victoria and modified to provide clarity that it does not cover employees of clubs situated on or near a sportsground who are not performing duties relating to a sporting event.

[126] A similar provision is found in the Liquor Industries - Racecourses Showgrounds etc. - Casuals Award 1998, 34 an award which operates in Victoria, Tasmania, Queensland and New South Wales in respect of the industry of persons employed as casual bar attendants, cashiers and other casual employees in the classifications prescribed on racecourses, recreation grounds, sports grounds, showgrounds, picnic grounds and any other ground where liquor is permitted to be sold under the licensing laws of any state. The respondents are a large number of racing clubs, a lesser number of football (of various codes) and cricket clubs, a limited number of agricultural societies and some labour hire companies.

[127] The relevant provision currently applies, through those two awards, to the employment of casuals in events, involving the service of liquor, staged in racecourses, recreation grounds, sports grounds, showgrounds and picnic grounds and not to the normal operation of licensed clubs. Casual bar attendants employed by race clubs, the major group of employers respondent to the Liquor Industries - Racecourses Showgrounds etc. - Casuals Award 1998 are included in the coverage of the Racing Clubs Events Award 2010. In those circumstances, we have decided against the inclusion of special provisions for casual bar attendants at racecourses and showgrounds in this award. In our view the general classification structure and wage rates, and related additional entitlements, in the modern award provide an appropriate safety net in relation to any residual employees of licensed clubs who might fall within the scope of cll.10.5(d) and 17.4 of the exposure draft.

[128] We have maintained the exposure draft definition of “shiftworker” for the purposes of annual leave under the NES to apply to all employees to whom the modern award applies.

[129] We have included in the modern award a maintenance and horticultural employees training allowance, reflecting the provision in the Club Employees (State) Award (NSW) 35 (the NSW clubs award) but modified to create an obligation only when the relevant training is required by the employer. Although no similar provision is found in the Victorian award, similar provisions apply, more generally, in Queensland NAPSAs.36

[130] We have not included the amenities provision suggested by the AWU in the modern award. It is a very prescriptive provision not suitable for a modern award.

[131] We have retained provisions for Sunday overtime and time off instead for work on public holidays in the exposure draft for application to all employees to whom the modern award applies. We are not persuaded that different provisions in relation to these matters should apply to maintenance and horticultural employees in the licensed clubs industry.

[132] The major issue which arose in the post-exposure draft consultations related to part-time provisions. Both prior to the publication of the exposure draft and in subsequent consultations, the LHMU supported the inclusion of the part-time employment provision in Victorian clubs award. That provision is in the same terms as part-time provisions contained in most modern awards.

[133] The LHMU submitted that the New South Wales provision undermines the character of part-time employment, removing essential protections for employees that the part-time provisions were designed to provide and that alternate arrangements can be made by enterprise agreement, subject to the better off overall test.

[134] Clubs Australia and other employer organisations proposed a provision in the terms of cl.10 of the NSW clubs award. Clubs Australia submitted that the exposure draft entails, for New South Wales, a loss of flexibility through preventing additional hours other than as overtime and an administrative burden associated with written consent for a change in rostered hours. It submitted that the provision was introduced by consent, has prevented disputes about hours and has led to a significant conversion form casual to part-time employment. It relied on several statements from clubs, which addressed the impact of the exposure draft provision on current arrangements.

[135] In assessing the competing positions in relation to what are very different provisions, it is necessary to more closely consider the current regulation of part-time work against the full range of existing federal awards and NAPSAs, the weight of that regulation and the substantive terms of the competing provisions.

[136] The current pre-reform awards – the Victorian clubs award, the ACT club managers award, the Liquor and Accommodation Industry – Licensed Clubs - Managers and Secretaries – Award 2002, 37 the ACT clubs award and the Queensland NAPSA, the Clerks’ Award – Hotels and Registered Clubs – State 200338 – all contain a regular part-time employment provision in the terms found in the exposure draft and generally contained in modern awards already made. As the LHMU noted, the provision was crafted as a safety net provision in respect of part-time employment by a Full Bench in the award simplification decision in 1998,39 after hearing evidence from employees in the hospitality industry and on submissions from relevant parties. The provision characterises a regular part-time employee as an employee who works less than full-time hours of 38 per week, has reasonably predictable hours of work and receives, on a pro rata basis, equivalent pay and conditions to those of full-time employees who do the same kind of work. It requires a written agreement on a regular pattern of work, specifying at least the hours worked each day, which days of the week the employee will work and the actual starting and finishing times each day, with variation in writing being permissible. All time worked in excess of mutually arranged hours is overtime.

[137] The NSW clubs award prescribes two sets of conditions for part-time employees. The first applies to employees employed as at 2 July 1999. The Restaurant and Catering Australia submitted that this provision has little, if any, continuing relevance, a proposition which was not disputed during the consultations. It provided for a loading of 15% in addition to the ordinary hourly rate of pay for all ordinary hours worked on Mondays to Fridays, in addition to an entitlement to annual leave, bereavement leave, blood donors leave, make up pay in respect of jury service, family care leave, repatriation leave, sick leave and unpaid parental leave.

[138] The second, and presently operative, set of conditions is in the terms Clubs Australia proposes for the modern award. It prescribes a minimum of 32 hours and a maximum of 148 hours in any four week period, to be worked over no more than 20 days in a four week period, together with a minimum three hours (other than for clubs who employ fewer than 10 employees) and maximum 10 hours per shift. It provides for a roster showing starting and ceasing times for ordinary hours of duty together with meal periods for part-time employees, to be posted two weeks in advance and not be changed except by mutual consent. When such a change is necessary because of absences or shortages of staff 12 hours notice is required. Change for any other reason requires seven days notice. There is a limitation of three part-time employees for each full-time employee, other than for clubs who employ fewer than 10 employees.

[139] Several NAPSAs provide flexible part-time provisions. The Club Managers' (State) Award 2006 (NSW) 40 provides for minimum (three) and maximum (37) weekly hours, to be worked as rostered, with at least 7 days notice. The Clerks (Clubs, Hotels and Motels) Award (SA)41 has limited part-time provisions, prescribing only the basis of payment, pro-rata access to personal and annual leave and a three hour daily minimum engagement.

[140] A number of other NAPSAs provide for two classes of part-time employees: those who work specified hours and those who do not. 42 We note in particular that the Club Employees' Award - State (Excluding South-East Queensland) 200343 provides daily and weekly minimum and maximum hours and a limitation to working on five days of each week. A loading of 10% applies and is applied for the payment of annual leave, sick leave, long service leave, overtime and public holidays. It should be noted that the New South Wales NAPSA provided a loaded rate for part-time employees before 1999, and the provision continues to apply to employees engaged before 1999.

[141] The Western Australian NAPSAs contain a concept of regular work for part-time employees. 44

[142] A review of current federal awards and NAPSAs discloses three types of provision. First there is the provision in the Victorian clubs award, common to most modern awards, providing a high degree of certainty and regularity of working patterns for part-time employees and payment at overtime rates for work beyond agreed regular hours. 45 Secondly there is the New South Wales provision which does not provide certainty and regularity of working patterns, although the statements provided by Clubs Australia suggest a proportion of employees are provided with regular times. Third, a number of NAPSAs applying in other states which provide for two types of part-time employees, those with specified hours and those without. A loading is paid to those without specific hours to compensate for the absence of regularity and certainty of work. In one case there is a single category of part-time employee with flexible hours and a loading.

[143] In terms of the significance of those diverse forms of regulation of part-time employment, Clubs Australia submitted that the majority of clubs are in New South Wales, as is the majority of employment by clubs. This point was conceded by the LHMU and is supported by Australian Bureau of Statistics data, 46 which shows:

[144] The weight of current regulation supports the adoption of the New South Wales NAPSA provision. However, that provision removes the essential characteristics of part-time employment of some degree of regularity and certainty of employment. It does not reflect a conventional concept of part-time employment as was conceded by Clubs Australia in submitting that “it is perhaps time to look at part-time in a different light and not with the conventional outlook of what is part-time.” The New South Wales provisions for part-time employees provide a bare guaranteed minimum of 32 hours over a four week period, no certainty beyond the roster as to when work is to be done and a capacity to alter the roster with 12 hours notice in cases of absences or shortages of staff. These part-time provisions give little predictability to part-time employees and do not appear to be consistent with “the essential integrity of part-time employment which should be akin to full time employment in all respects except that the average weekly ordinary hours are fewer than 38.” 47 The concerns we expressed about variation of hours by consent in relation to the awards in the health and welfare services industry48 apply equally in this context.

[145] Having regard to the significant departure from the conventional characteristics of part-time employment in the New South Wales provision and the diversity of current prescriptions, we are not prepared to apply the New South Wales provision across the licensed clubs industry, notwithstanding the predominance of club employment under the New South Wales NAPSA, without a fuller consideration of the issues raised through a more traditional arbitration, in advance of or as part of the two year review of modern awards, required by the Transitional Act.

[146] We have decided to maintain the part-time provision in the exposure draft, subject to the inclusion of a transitional provision for New South Wales, Queensland, South Australia, Western Australia and Tasmania, which will maintain the current arrangements for three years into the transitional period. This should accommodate the completion of the two year review. The transitional provision is in the following terms:

Liquor and accommodation industry (manufacturing)

[147] The brewing sector of the liquor and accommodation industry is covered by the Food Modern Award.

Wine Industry Award 2010

[148] We have made a number of changes to the exposure draft of the Wine Industry Award 2010. The award now provides that the casual loading is not payable during overtime except on Sundays and public holidays. This avoids a situation in which the overtime rate would be less than the ordinary time rate. The casual conversion clause has been altered to provide for casual conversion after 12 months’ engagement because of the seasonal nature of the industry. Piecework rates similar to those agreed by the parties have been included in the modern award and the operation of some disability allowances has been clarified. Additional default funds have been added to the superannuation clause where they were named in relevant pre-reform awards or NAPSAs. The ordinary hours of work have been extended for employees rostered to perform work in the vineyard between November and April and shift definitions have been altered as requested by major employer groups to overcome potential anomalies. The rates for paid meal breaks have also been detailed.

[149] With respect to the classification structure, it has been clarified that progression between Grade 1 and Grade 2 is automatic on passing the accredited assessment. Progression between Grade 2 and Grade 3 is also dependent on passing an accredited assessment. It has not been considered necessary to specify that other promotion is dependent on a position being available. If an employee has met the entry requirements for a grade and is performing the duties of the grade, they are entitled to the wage rate for that grade.

[150] Some other changes sought by parties have not been adopted having regard to the prevalent provisions of the relevant pre-reform awards and NAPSAs or the existence of a contrary agreement between the major representatives of employers and employees to be covered by the modern award.

Maritime industry

Dredging Industry Award 2010

[151] AiGroup sought to exclude employers covered by the Manufacturing Modern Award from this award. We have acceded to that proposal in part and the award will exclude maintenance contractors covered by the Manufacturing Modern Award.

[152] To provide clarity we have inserted definitions of remote areas and ports for the purposes of the shipkeeping allowances.

[153] The unions sought the deletion of the national training wage provision on the basis that specific industry arrangements already apply and are better suited. However, no details of these arrangements were provided and we therefore propose to retain the national training wage. Should a party wish to have a more industry specific provision apply this could be the subject of a further application.

[154] At the request of all parties we have decided to delete the classification definitions found in Schedule A of the exposure draft. We have done so on the basis that it is not practical to define classifications by reference to Maritime Orders as this provides insufficient differentiation. We are satisfied that the classifications set out in cl.14 are in terms which are well understood in the industry and there is no need for further definition.

[155] Finally, we have reconsidered our earlier decision not to insert an aggregate wage for fully operational vessels. The unions have provided further material to support such and we are now aware of a decision of a Full Bench of the Commission which endorsed the aggregate wage in this industry. We have therefore inserted relevant provisions which reflect those in the current award.

Maritime Offshore Oil and Gas Industry Award 2010

[156] A number of alterations have been made to the exposure draft. At the request of the parties we have included a definition of “day” to accommodate the nature of maritime work which may extend over several time zones. We were urged by the unions to insert the existing award provisions as to termination of employment. In our view, at least in respect of an officer with more than five years service and who is over 45 years of age, the award provisions could operate to an employee’s detriment by comparison with the terms of the NES. We have decided to retain the standard provision, which was in the exposure draft.

[157] The unions sought the deletion of the national training wage provision on the basis that specific industry arrangements already apply and are better suited. However, no details of these arrangements were provided and we therefore propose to retain the national training wage. Any proposal for an industry specific provision could be the subject of an application to vary the award

[158] We have decided to accept the submissions of the Australian Mines and Metal Association and the Australian Ship Owners Association (AMMA/ASOA) and to delete the definitions of chief integrated rating and integrated rating. Those definitions seemed to equate those classifications with others which, while still used, are increasingly obsolete. We are aware that the chief integrated rating and integrated rating are classifications that have been developed in more recent times to encompass greater multi-skilling.

[159] Although AMMA/ASOA urged us to include part-time employment provisions in the award, we note that such an employment type is not a feature of the existing awards nor is it a feature of the industry more generally. In the circumstances we are not persuaded to insert such provisions at this time.

[160] AMMA/ASOA pressed for the insertion of the current award provisions which restrict the ability of an employee who has undergone paid study leave to resign in the twelve months following such leave. We do not consider that the modern award should regulate the manner in which an employee may or may not resign. We have decided to include existing award provisions for personal accident and illness insurance.

[161] Finally, at the request of all parties, we have decided to delete the classification definitions found in Schedule A of the exposure draft. We have done so on the basis that it is not practical to define classifications by reference to Maritime Orders as this provides insufficient differentiation between the classifications. We are satisfied that the classifications named in cl.13 are well understood in the industry and do not need further definition.

Seagoing Industry Award 2010

[162] Further consideration of this exposure draft has been postponed due to legislative changes and the variation to the consolidated request made on 17 August 2009. We intend to publish a further exposure draft along with the exposure drafts for Stage 4 industries and occupations. The situation is explained more fully in the Full Bench statement of 19 August 2009. 49

Meat industry

Meat Industry Award 2010

[163] Since the publication of the exposure draft there have been a number of changes agreed between Australian Meat Industry Council (AMIC) and the Australasian Meat Industry Employees Union (AMIEU). We have incorporated those changes in the modern award. Other changes were suggested to add greater clarity to the operation of the award. These too have been adopted.

[164] The most significant area of controversy between AMIC and the AMIEU relates to the definitions of the various sectors of the industry. The issues arise from the decision of the Full Court of the Federal Court of Australia in Meatpak Pty Ltd t/a Holco Rine Meat Supplies v Moran. 50 That decision dealt with issues of possible overlap between awards covering different sections of the industry. The Full Court resolved the matter by adopting a “dominant nature of the establishment” test. The exposure draft adopted the wording proposed by AMIC which used the phrase “the sole or predominant business”. It was submitted by AMIC that this best reflected the decision of the Court.

[165] The AMIEU submitted that there may be circumstances where there is no dominant nature of the establishment and that the use by AMIC of business may not cater for circumstances where an employer who may operate a single business has a number of establishments. The AMIEU suggested reference to the activity or purpose of the establishment would be more appropriate.

[166] We have decided to adopt a formulation which refers to an establishment wholly or predominantly concerned with a particular sector of the industry.

Offshore island resorts

[167] Island resorts respondent to the Queensland NAPSA – the Off-Shore Island Resorts Award – State 2005 51 – again pressed for the creation of a separate offshore islands resort award.

[168] We have considered the further submissions but remain of the view that such an award would be inappropriate for the reasons expressed in our 22 May 2009 statement. 52 Accordingly, we will vary the Hospitality Industry (General) Award 2010 to delete cl.4.1(h), which exempted offshore island resorts from coverage by the award. We understand that appropriate transitional provisions will be required given the incorporation of the offshore island resorts currently subject to the Queensland NAPSA into the Hospitality Industry (General) Award 2010. We will consider such transitional arrangements when we consider transitional provisions for the Hospitality Industry (General) Award 2010.

Oil and gas industry

Hydrocarbons Industry (Upstream) Award 2010

[169] A number of changes were sought to the coverage in the exposure draft. The Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (AMWU) raised concerns about cl.4.2(b) in its reference to “preparatory work” and submitted that the modern award should not cover any construction performed prior to any start-up of a facility. AMMA and AWU say this wording simply reflects current coverage in the Hydrocarbons and Gas (Production and Processing Employees) Award 2002 and other relevant awards. 53 We agree with this submission and have made no change to the clause.

[170] Clause 4.2(e) was addressed by National Electrical & Communications Association (NECA), CEPU and CFMEU each being concerned about embedded employees of electrical and maintenance contractors. They submitted that these employers should be excluded and a specific exclusion of the Electrical, Electronic and Communications Contracting Award 2010 54 should be put in this award. The CEPU submitted that major contractors to companies like Woodside Energy Ltd had used state electrical contracting awards to underpin their enterprise agreements. The CFMEU was concerned the clause would take coverage beyond embedded employees and apply to employees and employers engaged in construction work traditionally covered by building and construction awards with superior conditions. The AMWU submitted that the reference to “commissioning” in the clause could be interpreted as construction of a new facility and if so it should be the Building and Construction General On-site Award 2010. There was a disagreement between AMWU on the one hand and AMMA and the AWU on the other as to whether there is an existing industry award for directly employed maintenance employees. AMMA pointed to clear words in the relevant industry awards showing that commissioning and maintenance has always been covered. The AWU agreed maintenance and modification work has always been in these awards. We accept that appears to be so. We note AMMA’s submission that it is not intended that major construction work will be covered by the award and its coverage is not intended to extend to major contractors doing work as identified by the CFMEU. The coverage in this award draws a line consistent with the current line between the various awards referred to. We do not propose to vary any part of this clause.

[171] An issue arose concerning laboratory technicians in the modern award classified above the equivalent of a C8 level in the Manufacturing Modern Award. It appears, however, there is no real disagreement between the parties with AMMA indicating that coverage only extends to these employees engaged up to level 4 of the award with all employees at a C8 level and professional engineers and scientists are specifically excluded from this award.

[172] The AWU raised a question as to whether the Longford Gas Plant may be covered by this award. It said further discussion about this was needed but we received no other submission. In those circumstances we accept the submission of AMMA that the employer and its employees come within the coverage of this modern award.

[173] The AWU submitted that the rates in cl.10 for casual employees doing work which had traditionally been covered by offshore mobile and offshore platform awards should be higher and, at the very least, there should be a minimum engagement of one day. We are not inclined to increase the percentage payable to a casual employee but this matter should be considered in any transitional provisions that are to be placed in the award. Given the engagement provisions in the relevant industry awards we agree that a minimum engagement is justified. Clause 10.4(b) now provides that it will be one day.

[174] A number of variations have been made to the allowances clause. The AWU sought an increase in the living away from home allowance. We have considered its submission and reviewed the relevant industry awards. We have increased the allowance to 6% of the standard rate.

[175] We have also considered the AWU’s submission about cl.15.8 and the reference therein to the minimum wage rates including compensation for four hours travelling time. The AWU submitted they did not. We have not been able to research this issue adequately in the time available. A review, at least of the award simplification proceedings, would be necessary. We have not varied the clause but at a subsequent review of the award the parties may wish to revisit this issue.

[176] In our statement of 22 May 2009 55 we referred to an allowance that had been sought by AMMA which was titled “Recovery of initial travel cost from outside capital city metro area.” We had not included that allowance in the exposure draft but invited submissions from any employers who pressed for the allowance and the identification of any existing awards containing a similar allowance. AMMA identified clauses in similar terms in some of the relevant industry awards. It submitted that the allowance was an appropriate balance of the circumstances in which an employer or an employee should bear the cost of initial transport. We are not persuaded to put this allowance into the award. Without deciding if it would be permissible under the terms of s.326 of the Fair Work Act, we do not think it is necessary or warranted in this award. A new stand-by allowance is now in cl.15.5(c) which also reflects the qualification that it is payable when the employer has required the employee to be available on stand by. A new storms and cyclones allowance is at cl.19.

[177] The AWU and AMWU opposed the annualised salary clause and submitted it should be the subject of enterprise bargaining. We accept the AMMA submission that all of the employer evidence, none of which was challenged, indicates that annualised salaries are prevalent in the industry. We have not varied the clause.

[178] We next turn to issues concerning hours and rostering. We have not varied any of these clauses. In this respect the variation to the consolidated request dated 2 May 2009 to add paragraph 33AA is relevant. That provides that in a modern award which covers work performed in remote locations (and this is such an award) “… the Commission should include terms that permit the roster arrangements and working hours presently operating in practice in those locations to continue after the making of the modern award.” Accordingly the enquiry is into what roster arrangements and working hours presently operate in practice in remote locations. All the employer evidence supported the existing clauses as reflecting those arrangements. No evidence to the contrary was before us.

[179] We have considered the AWU and AMWU submissions about the time off instead of payment for overtime clause but are not persuaded it will operate in the manner contended for by those unions. As we read the award it does not allow employers full discretion about whether to pay an employee overtime or require the employee to take time off instead. We have not varied the clause. If in practice this proves to be wrong a variation of the modern award may be considered.

[180] Some minor amendments have been made to Schedule A in terms proposed by AMMA and foreshadowed at the Full Bench consultations. Specific reference is now made to employees with supervisory functions.

Oil Refining and Manufacturing Award 2010

[181] We have made a number of changes to the coverage clause. We have amended cl.4.2(c) to extend coverage to facilities which are attached by pipeline to an oil refinery and the terms of that amendment are those which were agreed between Oil Industry Industrial Committee (OIIC), AWU, CFMEU and National Union of Workers (NUW).

[182] We have added a new cl.4.2(d) which in part adopts terms proposed by Terminals Pty Ltd (Terminals) and agreed to by the NUW. The coverage of the award will now extend to the reception, handling, storage, preparation, distribution, bottling and packing of bulk liquid at a bulk liquid terminal. The terms bulk liquid and bulk liquid terminal are defined but not as broadly as Terminals and the NUW proposed. Also we have not extended coverage to transportation. These activities are expressly covered by the Road Transport and Distribution Award 2010 56 (RT&D Modern Award). Prior to the Full Bench consultations Terminals had submitted that its operations may be accommodated by variations to one or other of two modern awards: namely, the Hydrocarbons Industry (Upstream) Award 2010 or the Storage Services and Wholesale Award 2010. The proposal to be covered by this modern award was announced on the day of the consultations and the terms of the agreed wording were provided subsequently. We were concerned that the breadth of the coverage as proposed would extend conditions in this award (particularly the 35 hour week) to employers not previously covered by oil industry awards with comparable conditions. In this respect we note for example the provisions of the Oil Stores Employees’ Award - Southern Division (Eastern District) 2003,57 a Queensland NAPSA, which provides for 40 ordinary hours per week. We also note the small number of employers respondent to existing pre-reform bulk liquid storage awards within the oil refining and manufacturing industry defined coverage of this award. We do not intend to extend coverage beyond those employers. Accordingly, clause 4.2(d) will be limited to those employers who were in this industry as at 1 January 2010 and were bound by the Oil and Gas Industry Bulk Liquids Terminals Award 200258. We have made some consequential amendments to the definitions clause and to the Head Operator classification in Schedule A to accommodate coverage of Terminals and its employees.

[183] The unions proposed that the modern award should cover the manufacture of polyolefins. This was opposed by OIIC, Qenos Pty Ltd and LyondellBasell Australia Pty Ltd, the latter two companies describing themselves as being in the plastics and chemicals industry. They submitted they were not in the industry as defined in this modern award, the only connection being their use of refined oil products as the feed stock in a manufacturing process undertaken by them. We accept the submissions made by these companies and have decided they should be covered by the Manufacturing Modern Award. A variation to that award will be made to delete cl.4.4(j) with the intention being that the activities of these companies will then come within the coverage described in cl.4.3(v).

[184] We have not included cl.4.2(b)(ix) as was proposed by the CFMEU which would specifically identify Syngas as being within the coverage of this award. We have referred to Syngas earlier in comments regarding the coal treatment industry. The CFMEU proposal was opposed by the OIIC on the ground it is not an activity currently conducted in oil refineries or lubrication plants, not contemplated in the development of the classification structure of this award and, in any event, would not belong in this award. We accept these submissions; Syngas will not be referred to.

[185] One significant change we have made is to now include clerical classifications in the coverage of the award. This was sought by the ASU relying on the fact that clerks have been regulated by oil industry awards in particular the Clerks’ (Oil Companies) Award 2002 (Clerks Oil Companies award) 59 and the Standard Hours (Oil Companies)Award 200360 for decades. We comment further about this in that part of this decision dealing with the minimum wages and classifications clauses.

[186] The AMWU and AWU submitted that certain laboratory employees without professional qualifications, described as technicians, were exempted in the exposure draft (along with professional scientists, etc.) but the parties now agree this award should cover them. We have amended cl.4.3(f) in the manner suggested by the AMWU.

[187] OIIC sought changes to the award flexibility clause. We have not been persuaded to make these changes to the model flexibility clause. In any event an employer probably has the right, consistent with the NES and other provisions of the award, to require leave to be taken in accordance with roster arrangements and for the substitution of public holidays with other days.

[188] The unions sought an additional provision to the effect that redundancy was “to be dealt with by applicable company policy but will be no less favourable than the NES”. We have not included this clause. Current awards do not have a similar provision and it is not an appropriate clause for a minimum safety net award. A matter like this may be more suited to an enterprise agreement.

[189] OIIC filed a new draft award following consultation with unions. It contained an amended wages and classifications structure largely agreed to by the relevant unions. We have incorporated it into the award although, as we have earlier indicated, it will now also contain clerical classifications. The ASU submitted that contrary to its usual submission about the suitability of the Clerk—Private Sector Award 2010 (Clerks Modern Award) 61 applying to all clerks on an occupational basis, this industry is an exception particularly because of the 35 hour week. It submitted that the award should include the wage rates and classification structure from the Clerks Modern Award. We have included classification levels from that award in cl.14.1. We have not included call centre classifications. We have taken into account the submission of the OIIC about the need for clerical employees to be able to have access to an annualised salary similar to that contained in the Clerks Oil Companies award and that any clerical structure should not extend beyond a level comparable with the top level in that award. Both of these considerations are, we believe, accommodated by the provisions of this modern award.

[190] There are a number of other matters that arise from our including clerical classifications in the modern award. The parties should consider these and may seek to vary the award to reflect any agreed changes. Those matters include whether the preamble to the clerical classification structure and the indicative tasks at the various levels reflecting the skills and requirements of clerks are appropriate for this industry. Also the award currently excludes clerical employees from receiving the industry allowance. We have done this as the allowance was agreed to by the OIIC at a time when it was assumed clerks would not be covered by this award.

[191] Clause 15.3 contains the industry allowance of 4% of the standard rate which has been agreed to by the parties. Numerous other agreed allowances have also been put into the award which we identify below. The unions sought a 20% loading for shiftworkers on permanent afternoon shift. We have included this provision, being of the view that it is contained in a significant number of existing awards in the industry.

[192] Several other amendments about which the parties agreed have been made to the award. These include changes to cll.10.2(a) part-time employment, 10.3 casual employment, 14.2 junior rates, 15.4(c) protective clothing and equipment allowance, 15.4(d) kilometre allowance, 15.4(e) reimbursement for certain travel related expenses, 19 payment of wages and 26.7 a direction to take excess annual leave.

Gas Industry Award 2010

[193] We refer to the coverage provisions first. Clause 4.3(a) is in the terms agreed by the parties and is intended to correspond with coverage provision in cl.4.2(c) of the Electrical Power Industry Award 2010. We note that the terms, whilst similar, are not identical. As the terms of cl.4.3(a) in this award were agreed we have not varied them to bring them into line with cl.4.2(c) but if that is necessary a variation application may be made.

[194] BOC Limited, Coregas Pty Ltd and Air Liquide WA Pty Limited, which we will refer to as the Industrial Gases Employers, sought an exclusion from the award. They operate businesses in the industrial, medical and special gases industry. There was no opposition to the terms of the exclusion proposed by them. It is now in cl.4.3(b).

[195] Elgas Limited and Kleenheat Gas Pty Ltd, which we will refer to as the LP Gas Employers, sought to be excluded from the award. Historically their award coverage has been by LP Gas specific awards which have had no connection with gas utilities awards. Also many of the employers in this sector are bound by enterprise awards and therefore will be exempt from this modern award. The AWU opposed the exclusion sought by the LP Gas Employers although it did acknowledge that generally LP gas companies have been covered by enterprise specific awards.

[196] We have decided to exclude the activities of these employers from this award. The exclusion is in cl.4.3(c). They can be covered by other modern awards which largely align with existing regulation. For example the transport functions will be covered by the RT&D Modern Award. Additionally these employers have had no real opportunity to consider any draft award proposed by the AWU or AiGroup who appeared for Jemena, SP Ausnet and Westnet Infrastructure Group (the Gas Industry Employers). We refer later to the several wages and classification proposals put by the AWU and Gas Industry Employers.

[197] The CFMEU sought an exclusion in these terms;

[198] We have included an exclusion of the Electrical Power Industry Award 2010. We have decided that it is not necessary to place any other terms of the CFMEU exclusion in this award. None of the employers or activities in the proposal come within the coverage of this award which is confined to the gas industry as defined.

[199] Clerical and administrative employees will be covered by this award but there will be no transport classifications. The relevant employees are already covered by the RT&D Modern Award.

[200] We next refer to cll.13 and 14 which deal with classifications and minimum wages and Schedule A which is the classification structure. When we published the exposure draft of this award 62 we expressed concerns about the draft filed by the AWU which was based on the Energy (Gas) Industry Award 199963 and the Gas Industry Award – State 2003, a Queensland NAPSA64 (the Queensland Gas award). At that stage no employer had filed any draft award and the only employers who did appear were those submitting that they should be excluded from any proposed award.

[201] Shortly prior to the Full Bench consultations on the exposure draft the Gas Industry Employers filed submissions and a draft award. The AWU also filed a new wages and classification structure. Both drafts were said to be largely based on provisions contained in an attachment the Queensland Gas award which is described as providing guidelines for the classification of positions in that award. The rates in the AWU draft partially adopted some in the exposure draft and in other cases did not and the reasons are unclear. All that was said in support was that the wage rates in the exposure draft had been modified and the trades equivalent rate was now placed at level 4. The wage rates in the case of the Gas Industry Employers draft were the same as in the Manufacturing Modern Award.

[202] Both drafts at that stage covered driving classifications and the employers draft excluded clerical and administrative employees. The Gas Industry Employers and AWU indicated at the Full Bench consultations that they would have further discussions in relation to wages and the classification structure. Subsequently, on 14 August 2009, the AWU filed brief submissions and a new wages and classification structure. It indicated that it had undertaken further enquiries and consultations and had decided that the structure that applied to the electrical power industry should be adopted. It submitted that the Queensland Gas award structure was not suitable. We note that the latest structure and the rates are in very similar terms to those reflected in the agreed classifications and wages structure for proposed Electrical Power Industry Award 2010. They bear little similarity to earlier proposals by the AWU or the existing gas industry awards. As well, the AWU proposal contains additional wage levels to cover employees involved in handling, storage and transportation of LP gas together with an allowance of 4% of the standard rate per week for those employees. Although the AWU draft is said to be based on the electrical power agreed structure we note, for example, that an employee within the technical stream of that draft at Grade 3 includes one with Certificate III qualifications and the AWU equivalent descriptor referred to an employee with Certificate II qualifications. No explanation was given for this difference.

[203] On 19 August 2009 the Gas Industry Employers filed a revised wages and classification structure. The wages structure adopted the levels and rates that had previously been sought by the AWU and the classifications reflected modifications and variations to the structure previously proposed by these employers. They indicated that in light of the development of the classifications in the RT&D Modern Award the draft did not contain transport classifications nor did it extend to managerial or professional employees. The draft included clerical and administrative classifications.

[204] Given the late filing of the parties final drafts little opportunity has been provided for the Full Bench to raise concerns we have about both of those drafts and no real opportunity has been given to any other interested persons to respond. Nonetheless the modern award must be made despite our having several questions about how some of the rates proposed by the parties are said to be appropriate for a minimum safety net award. We also have concerns about several references in the employers’ classification structure. For example, the references to “junior high school” may not be suitable for an award with coverage throughout Australia and the references to grades in the indicative positions in several levels are unclear. Presumably they are existing grades known to the parties but are confusing when placed in the eight Gas Industry Employee levels.

[205] We have no basis to be satisfied that the AWU rates and classification structure are suitable for this industry. We do not propose to adopt them. The proposal involves a significant departure from any earlier filed. Despite concerns we have with Gas Industry Employers’ draft we have, in large part, adopted it. However, it is likely the issues we have raised will need to be again considered in any forthcoming review of this award. We have set a wage rate structure reflecting the range of classifications now to be in this award taking into account existing industry awards and rates for relevant comparable classifications in other modern awards. The classification levels do not extend to any managerial or professional employee.

[206] We have made a number of changes to the allowances clause which was in the exposure draft. In cl.15.1 we have deleted three allowances which related to certain installation licences held by services persons and an allowance for “contending with high pressure gas”. They only appear to be in the Queensland Gas Award and in respect of the first two allowances the current classification structure does not contain comparable classifications. We suspect, however, that such licences are required to be held and invite the parties to consider at any review of this award a variation to make clear the name of the relevant licences held within the industry and persons within the classification structure that may be required to hold them and for whom an allowance may be justified. Similarly if the high pressure gas allowance and any availability allowance are considered appropriate for this award they too may be dealt with in the same way. A first aid allowance has been added and is now cl.15.1(a).

[207] We have deleted cl.20.5 of the exposure draft. It is only the Queensland Gas award which provides for a 3% contribution when an employee is absent on workers compensation. No other relevant award had any similar provisions and the clause was opposed by the Gas Industry Employers as introducing a new cost.

[208] We have altered the period of the meal break in cl.22 to be at least 30 minutes and allowed within five hours of the start of a shift. That entitlement appears to reflect the majority of existing relevant industry awards. Finally, we agree with the submission of the Gas Industry Employers that the annual leave loading as it was expressed in the exposure draft could give rise to “double dipping” and have now adopted their suggested wording for the clause.

Paper products industry

[209] The paper products industry is dealt with below in conjunction with the timber industry.

Pet food manufacturing

[210] Pet food manufacturing is dealt with in the Food Modern Award.

Pharmaceutical industry

Pharmaceutical Industry Award 2010

[211] The exposure draft of the Pharmaceutical Industry Award 2010 has been altered to clarify that its coverage extends to the wholesaling of prescription pharmaceuticals or of both prescription and non-prescription pharmaceuticals and that it does not cover those covered by the Food Modern Award or the Manufacturing Modern Award. Further, the organic phosphorus pesticide allowance has been removed, the minimum engagement on Saturdays and Sundays has been reduced to three hours and an additional week of annual leave for seven day shift workers has been provided for having regard to the underlying awards and NAPSAs. A minimum four hour engagement for casuals and the payment of annual leave at the base rate have not been adopted having regard to the current awards and NAPSAs.

Photographic industry

[212] We will expand the coverage of the Manufacturing Modern Award to cover printing and processing of photographic film. No one opposed this course and AiGroup supported it. We will adopt their draft amendment.

Port and harbour services

Coal Export Terminals Award 2010

[213] The scope clause of this award was subject to considerable debate. The unions strongly pressed for the inclusion of the Port of Gladstone within this award given its significant export coal operations. That position was opposed by employers. The port of Gladstone is operated by a port authority. Its activities are diverse and the products it handles are wide ranging. We consider that it is more appropriately regulated by the Port Authorities Award 2010 which will generally cover the operations of all other port authorities around the Australian coastline.

[214] We have made changes relating to payment of wages, adult apprentices, termination of employment, meal breaks, hours of work and annual leave. Other changes sought by the unions were based on provisions of a small proportion of relevant enterprise awards and an industry award covering stevedoring which currently has no application. The changes are not therefore representative of existing award provisions and have not been adopted for this reason.

Marine Towage Award 2010

[215] We have made amendments to the scope clause of this award to permit the application of the award to towage operations conducted by port authorities and exclude its application to maintenance contractors covered by the Manufacturing Modern Award. We have deleted the classification definitions at the request of the unions. We agree that the classifications are capable of ready application without the definitions in the exposure draft or those initially proposed by the parties.

[216] Other changes relating to allowances and superannuation have also been made consistent with the submissions of the parties.

Port Authorities Award 2010

[217] We have inserted professional engineers classifications into this award and excluded maintenance contractors. We have not varied the scope of the award in other respects. We have retained dredging classifications because the employers supported the application of consistent terms and conditions to the small number of dredging employees who would be employed by a port authority. We confirm the inclusion of marine pilots classifications which apply to any pilots employed by a port authority. We have not excluded any particular port. By virtue of the standard general exclusion, ports covered by enterprise awards will of course not be covered but there is no need to make specific reference to them.

[218] Other changes to the award are minor corrections.

Ports, Harbours and Enclosed Vessels Award 2010

[219] The Maritime Union of Australia (MUA) and The Australian Institute of Marine and Power Engineers (AIMPE) sought to retitle the award as the Maritime Industry General Award to reflect a desire that the award apply to vessels which venture beyond ports and harbours. The current scope clause is not so confined but we have decided to make this clearer by adding additional words to the definition of the industry. We decide below to confirm the Marine Tourism and Charter Vessels Award 2010. Employers and employees covered by that award will be excluded from the provisions of this award. It is unnecessary to maintain an exclusion with respect to the Sugar Industry Award 2010. Exclusion of employees of local governments and maintenance contractors have been inserted. We consider that the existing title of the award is preferable to the alternative suggested.  

[220] We have deleted the definitions for classifications as submitted by the MUA and AIMPE and the definitions were unnecessary in the circumstances of this employment. Other minor changes have been made.

[221] We recognise the impact of the wage rates we have established for this award on employers covered by the Motor Ferries State Award 65 and Wire Drawn Ferries (State) Award.66 However a consideration of the wage rates for all current awards has led us to the conclusion that the rates we have adopted are more representative of rates in existing minimum rates prescriptions. Transitional arrangements will ameliorate the impact to some extent.

Stevedoring Industry Award 2010

[222] Parties covered by this award did not raise significant areas of concern. Some minor changes have been made to the scope clause of this award such as inserting a definition of cargo and confining the list of vessels to “ship” as this term is defined broadly in the Fair Work Act. We have also excluded maintenance contractors. We have reduced the list of awards which prevail over this award to those of likely relevance.

[223] Changes sought by employers to reflect the nature of Guaranteed Wage employment have been made. An electrician’s licence allowance has been inserted. Some other minor corrections have been made.

Postal services (other than Australia Post)

[224] In our statement of 22 May 2009 we noted that there is one pre-reform award or NAPSA, the Postal Services Industry Award 2003 (Postal Services Award), 67 applying in this industry and that it binds all or almost all the operators of licensed or franchised post offices. We expressed a provisional view that the licenses under which licensed post offices operate have the attributes of a franchise and are to be treated as franchises for the purposes of cl.2A of the consolidated request. We noted that if this view is correct then the terms of the consolidated request require us to exclude the Postal Services Award from the current award modernisation process and, accordingly there is no need to make a modern award for the postal services industry.68

[225] We received no subsequent submissions in opposition to that course and no party appeared at the oral consultations listed for 26 June 2009. We proceed on the basis indicated in our earlier statement. We will make no modern award for the postal services industry. In the event that a relevant court gives a judgment contrary to our view, that licences under which licensed post offices operate have the attributes of a franchise and are to be treated as franchises for the purposes of cl.2A, an application for the making of a modern award for the postal services industry will be considered.

Private transport industry (remaining sectors)

Public transport (other than rail)

Passenger Vehicle Transportation Award 2010

[226] In the statement which accompanied the publication of the exposure draft of this award we indicated that we had decided to publish one award only to cover the two sectors of the industry. We noted that in the past they had been considered to be separate as had been the award coverage. They were described as public passenger transport on the one hand and private sector passenger transport on the other. 69 We have considered the submissions concerning the coverage of both sectors by the one modern award. We have not been persuaded to depart from our provisional view nor the reasons we then gave for deciding to not make any additional modern awards for these industries. Nor have we excised from the coverage of this award the transport of passengers by tram, light rail or monorail. No current modern award is appropriate to cover these operations and we accept the submission of the Australian Rail, Tram and Bus Industry Union that the Rail Industry Award 201070 is not a suitable modern award to incorporate them.

[227] The terms of this modern award are largely the same as the exposure draft. Some changes have been made which we refer to later. Before doing so however we should refer to submissions concerning taxi drivers and whether the award should contain a specific classification for them. This matter was referred to by us in our statement of 22 May 2009. We there noted the submissions made by the New South Wales Taxi Council Limited and Victorian Taxi Association that no taxi driver in Australia was an employee nor in an employment relationship with the owner or operator of the taxi vehicle which was driven. Again in the post exposure draft submissions the contest between these industry representatives and those representing taxi drivers continued. Submissions were made by the Australian Taxi Drivers Association, Taxi Drivers Association of Victoria, NSW Taxi Drivers Association and a Mr Ahmed. They sought the inclusion of a specific reference to a taxi in the definition of motor vehicle and to a taxi driver in the classifications schedule.

[228] Although we acknowledge the conviction with which these submissions were made we have not been persuaded to accommodate the amendments sought. This modern award will only apply to an employee as defined under the Fair Work Act. Merely by identifying the classification of a taxi driver in the modern award will not of itself impact on the contractual arrangements between that taxi driver and the owner or operator of the taxi driven by them. If we were to include a specific reference to a taxi driver that may give rise to an expectation that we had, in the context of award modernisation, considered and ruled upon the status of the relationship between these persons. All we can properly do is to repeat what we said in our earlier statement that if a taxi driver is an employee then, assuming the employer is in the industry as defined in this modern award, that employee would come within the Grade 2 classification which includes “a driver of a motor vehicle, limousine or hire car”.

[229] Several amendments were sought by parties with an interest in this award. We have considered the submissions in support of each amendment and the comparable provisions in the relevant pre-reform awards and NAPSAs. We have not amended the wage rates and confirm the comments about these rates made by us in our earlier statement. In other cases we have not made the amendments sought as the matter is dealt with in the NES, for example, an employer’s right to require an employee to work reasonable additional hours. The amendments that have been made include inserting a definition of passenger vehicle and an alteration to the definition of scheduled route service to specified route service. We have amended the part-time provisions in cl.10.4 to accommodate, in part, the submissions of the Bus Industry Confederation. In the case of casual employees we have retained a three hour minimum for each shift but where the transportation of school children is undertaken then we have provided for a two hour minimum for each engagement. A new allowance of $10 per shift has been included where an employee is required to drive an articulated bus. Schedule A has also been varied to refer in Grade 3 to a carrying capacity of a vehicle so as to make it consistent with other descriptors in the schedule.

Publishing industry

Book Industry Award 2010

[230] The only substantive submission received in relation to the exposure draft was from MEAA. The major change it sought was the inclusion of classifications and rates of pay for publicists. We have acceded to that submission. Definitions and minimum wages are based on those in the Public Relations Industry Award 2003. 71 The classification definitions are somewhat generic and it may be that some modification will be required in due course.

[231] There have also been minor changes made to the terms of the exposure draft dealing with superannuation and meal breaks.

Scientific services (including Professional Engineers and Scientists)

Professional Employees Award 2010

[232] There have been a number of variations to the exposure draft. To begin, we have now included quality auditors in the scope and coverage of the modern award. At the exposure draft stage we were of the view that there was not sufficient coverage of these persons to warrant a separate award. APESMA agreed and submitted that they could be incorporated into the Professional Employees Award 2010.

[233] We have also decided to leave the name of the award as it was in the exposure draft. AiGroup expressed concern it could be misunderstood as applying to all professional employees. There is some force to this submission. But the alternative would be to adopt a title which would be too cumbersome and might require further alteration in the future.

[234] The Association of Consulting Engineers Australia (ACEA) suggested some changes to the definition of professional employees. APESMA was unable to asses the impact of those changes in the time available. We have not made the changes proposed as it would disturb longstanding definitions. However, this does not mean that the parties cannot examine these matters and make application to update the definitions in the future.

[235] The ACEA submitted changes to a number of standard clauses. We have decided to maintain consistency with other modern awards. However, there were other changes sought by AiGroup and ACEA which have been included.

[236] An important change sought by AiGroup related to the way in which employers would consider a total remuneration package for employees having regard to patterns of work. We have retained the provision contained in the exposure draft. In our view this is not prescriptive but nonetheless alerts employers to the need to take into consideration the demands placed upon professional employees when fixing remuneration.

Storage services

Storage Services and Wholesale Award 2010

[237] There have been a number of changes to the terms of the exposure draft. In relation to coverage, we have specifically excluded employees covered by the RT&D Modern Award. We have also included provisions for early morning shifts to cater for work performed at wholesale markets and the like. We have also amended the annual leave provision to clarify the operation of the NES in relation to shiftworkers and amended the public holidays provisions in relation to substitution of days.

[238] We have not included special provisions for retail warehouse employees as sought by the NUW. Nor have we included higher duties and shift arrangements proposed by the NUW. Those provisions have limited application beyond Victoria.

[239] In our statement of 22 May 2009 we indicated that the wage rates in the exposure draft had been taken from the RT&D Modern Award. That statement was wrong. Nevertheless we have retained the rates in the draft as they adequately reflect relevant rates in the area to be covered by the award.

Sugar industry

Sugar Industry Award 2010

[240] This award covers the field, factory and bulk sugar terminal operations in the industry. For the most part it is in the same terms as the exposure draft, although there are a number of changes which should be mentioned.

[241] The parties have had a common goal of achieving one modern award to cover all of the sectors of the sugar industry, in field, milling, refinery, distillery, sugar research, bulk sugar handling and terminal operations. The task of producing the sugar industry award has required the accommodation of 12 NAPSAs and pre-reform awards.

[242] Section 576J of the WR Act and the consolidated request require that a modern award deal with a minimum safety net of wages. A number of the underlying NAPSAs did not contain appropriately adjusted minimum wages. An examination of the history of wage setting in the industry indicates that in the predominant NAPSAs wages have been fixed by reference to industrial disputation and economic conditions prevailing from time to time in the industry with little reference to accepted principles of minimum wage fixation.

[243] In making the modern award the Commission is required to establish a fair minimum safety net. That requires some consistency between award rates for similar classifications covered by the various modern awards. In implementing the approach in this award it has been necessary to reduce the rates proposed by the parties because those rates reflect, to a large extent, the rates drawn from the relevant NAPSAs. We have adopted three sets of rates which have been fixed having regard to comparisons with relevant minimum rates applying in other modern awards.

[244] While the bulk sugar terminals sector has indicated it wishes to be included in the modern award, it is clear that the rates applicable to the bulk terminals are paid rates and currently may only be applicable to a single operating business. Accordingly it has been necessary to fix rates for bulk terminals which are of a safety net character. This outcome is in accordance with the consolidated request which provides that although “the creation of modern awards is not intended to... result in the modification of enterprise awards … this does not preclude the creation of a modern award for an industry … in which enterprise awards or NAPSAs that are derived from state enterprise awards operate.”

[245] In our statement of 22 May 2009 we requested the parties to review the large number of allowances. The parties have been reluctant to further rationalise the allowances. We have, however, reviewed the allowances and grouped them according to their application to the relevant industry sector. Some allowances submitted by the parties have not been included in the modern award because they are not consistent with the requirements for a modern award or are State-based.

[246] The impact of differences in wage rates and allowances resulting from the operation of the modern award can be taken into account when the transitional provisions are being considered for the Stage 3 awards.

[247] We have declined a number of further proposed changes to the exposure draft as follows:

[248] We have adopted a number of changes to the exposure draft as follows:

Technical services

Hydrocarbons Field Geologists Award 2010

[249] Following the publication of the exposure draft no persons has submitted that there should be any significant change. Accordingly it is now made, with only minor amendments, in the terms of the exposure draft.

Architects Award 2010

[250] APESMA and the Association of Consulting Architects of Australia agreed on a number of changes which have now been incorporated. There were four areas where agreement was not reached. They are: notice of termination, professional development, leave and public holidays.

[251] In relation to termination of employment, APESMA sought the notice period for termination to be one month on either side. We will include such a provision as it is a feature of this area of employment and contained in awards which will be superseded by this modern award. We have not included a provision in relation to professional development as, in our view it was aspirational rather than imposing any obligations. However we have altered the provisions in relation to annual leave but not public holidays.

Surveying Award 2010

[252] A number of changes have been made to the exposure draft taking into consideration the submissions of the participants. Mostly these are minor matters which maintain consistency with other professional awards and properly balance the matters derived from the various awards.

[253] Two matters remain outstanding and are of particular importance. The first relates to flexibility in working patterns for surveyors that might operate in remote areas. Our attention was drawn to the provisions of the Queensland NAPSA 72 in this regard. We have given careful attention to this issue and have reached the conclusion that the particular circumstances described can be accommodated using the award flexibility clause in the award. That clause permits agreements to be reached on hours of work, overtime and penalty rates.

[254] The final matter relates to classification descriptions and wage rates. As to wage rates, the Spatial Industries Business Association proposed higher rates than those currently in the exposure draft. Whilst we appreciate the reasons for the proposal, we prefer the assessment we have made in relation to properly fixed minimum wages. Turning to the classification structure, there is a difference of view as to the role qualifications should play in the structure. It appears to us that there is a genuine desire to review the classification definitions but this will require more time. Accordingly we have retained the structure in the exposure draft as it has been drawn from existing instruments. If at some time in the future the discussion between interested parties results in new definitions an appropriate application can be made.

Timber industry

Timber Industry Award 2010

[255] The exposure draft incorporated the scope of a number of industry sectors covering harvesting, milling, panel products, manufacturing including timber furniture, merchandising and retailing and the pulp and paper sectors. We have adopted the CFMEU proposal of a multi stream and the Minimum wages clause sets out separate rates for each stream.

[256] We have not acceded to a submission by the CFMEU to retain majority facilitation clauses contained in the Timber and Allied Industries Award 1999. 73 The standard flexibility clause with its inherent protections is adequate and less prescriptive.

[257] A number of submissions were made dealing with the consequences of adopting provisions from the Manufacturing Modern Award and their relevance to the timber industry. As a result we have amended a number of provisions in the exposure draft particularly the clauses dealing with hours of work and related matters.

[258] The Timber Industry Alliance (TIA) submitted that a number of definitions in the exposure draft were irrelevant or outdated. We have deleted the following definitions from the exposure draft: assembler A class, assembler B class, attendant, boiler attendant or fireman, bush sawmills, carpenter bush, carpenter making stock work, kiln attendant, kiln operator, kiln supervisor, orderperson, orderperson class 1 and 2, order/salesperson, responsible person at docking saw, shiploader, tallyperson and timber grader.

[259] A number of parties supported a redrafted dispute resolution clause which we have inserted. The CFMEU, with the support of a number of employer associations, submitted that the award should contain an abandonment of employment clause. We do not think such a clause is necessary and note such provisions are not a feature of other modern awards.

[260] The exposure draft contained provisions for training and skill development derived from the Manufacturing Modern Award. The CFMEU submitted the provisions diminished prevailing standards. The TIA provided an alternative clause which we have adopted.

[261] Consistent with our statement of 22 May 2009 a number of allowances which were included in the exposure draft have now been deleted. They are: submerged timber, hard surfacing, collecting monies, insulation & slag wool, cleaning lavatories and shifting or erecting camp.

[262] We have also included a schedule of rates for piecework in regions of Tasmania.

Tourism industry

Alpine Resorts Award 2010

[263] We have made a number of alterations to the exposure draft. The provisions represent an amalgam of the disparate conditions found in the pre-reform awards or NAPSAs which apply to the alpine resorts industry. The seasonal nature of the operations covered by the award has been taken into account in relation to the types of employment permitted and the conditions which apply to them, including the pay arrangements. The resulting provisions are intended to accommodate the summer as well as the winter seasons. A number of the changes which were sought involved alterations in standard provisions in modern awards. Generally we have not altered standard provisions.

[264] The minimum wages applying at various levels have been altered in some respects so as to be better aligned with other relevant awards, particularly those applying in the hospitality industry. We have also altered the levels of a limited number of hospitality classifications. There have been some alterations to the allowances relating to clothing and travel which are largely agreed but in other respects bring the provisions into line with the award arrangements which already apply. There are a number of other minor changes.

[265] The AWU has agreed on a provision that would exclude casual employees from public holiday penalty rates among other things. We note that the Alpine Resorts (The Australian Workers’ Union) Award 2001 74 does not provide for such an exclusion. We have decided not to include the agreed exclusion. Casuals will be entitled to public holiday penalties under the award. If we have misunderstood the position or the intention of the penalties an application can be made to vary the award.

Marine Tourism and Charter Vessels Award 2010

[266] This modern award brings together a number of different types of award provisions applying to the marine tourism industry. That industry includes day charters for both onshore and offshore tourism and overnight charters for offshore tourism. In order to accommodate the two types of charter operations we have developed two sets of hours and wages provisions. New definitions have been included of overnight charter employee and non-overnight charter employee. The various wage arrangements and entitlements that apply to each type of employee can be readily differentiated.

[267] The award contains flexible working hours arrangements which are consistent with the NES and reflect the span of hours that has customarily applied in the various sections of the industry. Penalties apply in certain circumstances, depending upon the nature of the operation and the type of engagement.

[268] Daily wage rates for overnight charter employees have been adjusted to reflect the incorporation of penalties for work on weekends and public holidays. The payment schedule for charters of particular duration has also been amended.

[269] Because the award brings together diverse forms of regulation in NAPSAs operating in New South Wales and Queensland it involves some significant changes for some employers and employees. It may be that further variation is required. Perhaps more importantly, there may be employees covered by the modern award, particularly employees in States or Territories other than New South Wales and Queensland, who have not participated in the consultations, and whose working arrangements may not have been adequately considered. While conscious of this possibility there is little we can do about the matter at this stage.

Vehicle industry (repair, service and retail)

Vehicle manufacturing industry

Vehicle Manufacturing, Repair, Services and Retail Award 2010

[270] There has been widespread support for an integrated vehicle industry award to apply as reflected in the exposure draft – the Vehicle Manufacturing, Repair, Services and Retail Award 2010 (the Modern Vehicle Award). In adopting that course we have accepted a number of changes in the exposure draft arising from the parties’ submissions, so that the modern award generally accords with the structure and content of the antecedent awards.

[271] Consistent with unification of the vehicle awards, and notwithstanding the representations of the Shop, Distributive and Allied Employees Association, we have preserved the existing classification structures, including provisions as to the retailing of fuel and other commodities through the console operations which characterise modern service/petrol stations and which have been the subject of review in several earlier Commission proceedings. Similarly, we have accepted the need, given the specialised functions of the award requiring driving, for the retention of the current driving classifications. An appropriate exclusion will appear in the RT&D Modern award.

[272] As to coverage it is important that the making of the new award not unsettle the relationship which has existed satisfactorily for many years between the awards of the vehicle industry and the award regulating manufacturing. The fact of complementary exclusion provisions in the Modern Vehicle and the Manufacturing Modern awards is intended to have this effect. Where claims have been made for additions to the scope of coverage of the Modern Vehicle Award, to include, for example, boats and bicycles, our approach has been to maintain the status quo.

[273] Further submissions were made as to the existing record keeper classifications and as to the specialised skills and industry specific functions required of employees so classified. As it remains our view that such employment comes within the scope of the Clerks Modern Award these classifications have been removed from the award.

[274] We have been assisted by the parties’ further submissions as to apprenticeships and the obsolescence of several provisions. The parties have also advised that it is their intention, after the Modern Vehicle Award comes into operation, to seek the assistance of Fair Work Australia in dealing with a number of outstanding issues, including finalising levels 7 and 8 of the repair, services and retail classification structure.

Wholesale and retail trade (wholesale) and commercial travellers

Commercial Sales Award 2010

[275] There have been few alterations to the exposure draft. We have amended the coverage to make it clear that the award does not cover employers and employees covered by the Clerks Modern Award, the Contract Call Centres Award 2010, 75 or the Graphic Arts, Printing and Publishing Award 2010.76 More flexibility was sought by employers in New South Wales in relation to part-time hours of work. The provision upon which we have decided is consistent with the existing regulation of part-time hours in Victoria and Queensland. Although the relevant award in New South Wales has more liberal hours provisions, it also contains a limitation on the number of part-time employees that may be employed.

[276] The Commercial Radio Association sought a provision for the cashing-out of annual leave. This position was supported by the media interests. There is no such provision in the current awards or NAPSAs and we have decided not to provide for it. We note that we have adopted the standard motor vehicle allowance in lieu of the rather complicated formula in the exposure draft. Should this give rise to unforeseen difficulties the issue can be reconsidered at a later stage.

OTHER MATTERS

Air freight forwarders and customs clearance

[277] This part of our decision deals with a submission made on behalf of the Customs Brokers and Forwarders Council of Australia Inc (CBFCA) that we should identify an industry, most recently described as the “International Trade Logistics and Border Clearance Industry”, for “stand-alone” consideration and make a modern award covering employers and employees in that industry. Mr Rochfort, representing the CBFCA, has filed written submissions in proceedings which dealt with the clerical and private transport industries. In short, it was then submitted that the activities of employers who are members of the CBFCA and their employees could not be appropriately accommodated within any modern award that might be made covering employers and employees in those industries or any sectors of them.

[278] Although we do not know the names of the employers who are members of CBFCA it seems they, and their employees, have been regulated by two pre-reform awards. They are the Transport Workers (Air Freight Forwarders and Customs Clearance) Award 2000 77 (the Transport Freight Forwarding Award) and the Clerical and Administrative Staff – International Freight Forwarding and Customs Clearance Industry Award 200378 (the Clerical Freight Forwarding Award).

[279] We refer first to the transport functions undertaken by employees of CBFCA members. It should have been clear these were considered in the context of the private transport industry in Stage 2. In our decision of 23 January 2009 79 we published the exposure draft of the RT&D Modern Award and noted that the coverage incorporated many pre-reform awards and NAPSAs. One which was specifically identified was freight forwarding80. The coverage of the modern award which was subsequently made incorporates the activities previously regulated by the Transport Freight Forwarding Award. The vehicles driven by employees at various levels in that award are comparable to those contained in the RT&D Modern Award and there is no significant difference in the rates payable to employees at the respective levels. It was not said that any flexibilities which may have been in the Transport Freight Forwarding Award were not available in the RT&D Modern Award and it was conceded that there was very little direct engagement of transport workers by any members of the CBFCA. We do not intend to revisit the coverage of the RT&D Modern Award.

[280] During Full Bench consultations in relation to the Stage 3 exposure drafts, and in particular the private transport industry (remaining sectors) consultations, Mr Rochfort submitted that CBFCA members should be excluded from any transport modern award but his real concern was about employees whom he asserted had wrongly been referred to as clerks. We note this is at odds with what has always been the title of the relevant award ie the Clerical Freight Forwarding Award. Nonetheless, it was submitted that these employees could not be described as “clerks in the strict sense”. Some tasks done by these employees and the means by which they were undertaken were addressed by Mr Rochfort. We do not reproduce those submissions but we have taken all of them into account. 81 We invited him to provide any additional submissions relating to why the relevant employees could not properly be said to be in engaged in clerical work. We subsequently received written submissions on 8 July 2009 and have considered those submissions.

[281] The first observation we should make is that consistent with the title of the Clerical Freight Forwarding Award the incidence clause describes it as covering clerical and administrative work in or in connection with freight forwarding and customs clearance. The classifications in the award, with the exception of the two highest levels, are described as “Administration Clerical Officer”. Throughout the descriptors for the classification levels are references to clerical and administrative tasks and duties carried out in and about an office or other facility operated by a freight forwarding/customs broking establishment. Accordingly the award which has traditionally regulated the work of these employees is replete with references to clerical and administrative functions and classifications.

[282] The CBFCA submissions emphasise that the range of skills required are above and beyond the routine tasks required of a clerk. In this respect the submission stresses the need for employees to be able to interpret documents which may come from, or go to, all parts of the world and to monitor movements, consignments and transport of goods in accordance with customer requirements. All of that may be so however it seems to us that the tasks undertaken and the means by which they are undertaken are all consistent with what is generally accepted to undertaken by a clerical and/or administrative employee.

[283] The submission points to requirements placed on the industry by legislation and government regulatory bodies. Accordingly employees within the industry undertake training and, in order to progress to higher classification grades, certain accreditation indicating their knowledge of those requirements is necessary. This does not distinguish these employees however from others covered by the Clerks Modern Award. Clerks in every industry need some specialised knowledge of the legislative and regulatory framework in which their employer operates. Nonetheless, they remain principally engaged in clerical and administrative duties. That these employees perform their duties and tasks in a manner that ensures any obligations placed upon their employer and assumed by them comply with statutory requirements and regulatory controls does not identify these occupations as being other than clerical and/or administrative.

[284] We acknowledge that the most senior employees of CBFCA members may be required to possess a customs broker’s license and to undertake a National Customs Brokers Course giving accreditation at AQF Certificate IV level. It may well be that this higher level would not be an employee who is wholly or principally engaged in clerical work and accordingly not covered by the Clerks Modern Award. Similarly any managerial or professional employee would be excluded. Otherwise we are not persuaded to identify any industry as sought by CBFCA nor publish any additional exposure draft.

CONCLUSION

[285] We now publish each of the Stage 3 awards. A complete list is in Attachment A to this decision.

[286] Once again we express our gratitude to those who have participated in the consultations for their assistance and to the Modern Awards Team for the research and administrative support they continue to provide.

BY THE COMMISSION:

PRESIDENT


 1   [2009] AIRCFB 345, also see ss.576A(2) and 576B(2) of the Workplace Relations Act 1996, and cls.1 and 2 of the consolidated request.

 2   [2009] AIRCFB 800.

 3   [2009] AIRCFB 645.

 4   [2009] AIRCFB 450.

 5   MA000010.

 6   MA000025.

 7   MA000020.

 8   AP766012CRV.

 9   [2009] AIRCFB 450.

 10   MA000037.

 11   AN160083.

 12   AN140059.

 13   [2009] AIRCFB 450 at [50].

 14   AP793302.

 15   See [2009] AIRCFB 800 at [67].

 16   AP817297.

 17   AP816117.

 18   Theatrical Employees (Motion Picture Laboratories) Award 2001, AP806122.

 19   Journalists (Television) Award 1998, AP785611.

 20   Commercial Radio – Journalists Award 1999, AP776547.

 21   MA000003.

 22   MA000004.

 23   MA000009.

 24   [1984] 293 CAR 69.

 25   AP817963.

 26   AP824122.

 27   AP824122.

 28   AN120079.

 29   MA000013.

 30   MA000014.

 31   AP787060.

 32   AP787017.

 33   AN150066.

 34   AP787006

 35   AN120136.

 36   AN140072, AN140073 and AN140137.

 37   AP817963.

 38   AN140068.

 39   Print P7500.

 40  AN120138.

 41   AN150037

 42   Clerical Award – Registered and Licensed Clubs – State 2003, AN140066; Clubs Etc. Employees’ Award – South East Queensland 2003, AN140073; Hotels, Clubs, Etc., Award, AN150066; Licensed Clubs Award, AN170057.

 43   AN140072.

 44   Clerks’ (Hotels, Motels and Clubs) Award 1979, AN160075 and Club Workers’ Award, 1976, AN160082.

 45   [2008]AIRCFB 1000, at paragraphs 202 and 250.

 46   Clubs, Pubs, Taverns and Bars. Cat No. 8687.0, July 2006.

 47   [2008]AIRCFB 1000, at para. 291.

 48   [2009] AIRCFB 345, at para 148.

 49   [2009] AIRCFB 765 at paras 3 – 6.

 50   [2005] FCAFC 111.

 51   AN140196.

 52   [2009] AIRCFB 450, at paras 139-142.

 53   AP820493. AP812665,AP769637, AP812663, AP791878.

 54   MA000025.

 55   [2009] AIRCFB 450 at para 146.

 56   MA000038.

 57   AN140197.

 58   AP822096CRV.

 59   AP820387.

 60   AP825355.

 61   MA000002.

 62   [2009] AIRCFB 450 paras 153 – 160.

 63   AP780799CRV.

 64   AN140130.

 65   AN120351.

 66   AN120650.

 67   AP830245

 68   [2009] AIRCFB 450 at para 176.

 69   [2009] AIRCFB 450 at paras 179-180.

 70   MA000015.

 71   AT825430.

 72   Surveying (Private Practice) Award 2002, AN140287.

 73   AP800937CRV.

 74   AP805713.

 75   MA000023.

 76   MA000026.

 77   AP801394.

 78   AP826032.

 79   [2009] AIRCFB 50.

 80   [2009] AIRCFB 50 at para 98.

 81   PN 4990-5025.


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Attachment A to the Full Bench decision of 4 September 2009

Stage 3 modern awards

Air Pilots Award 2010

Aircraft Cabin Crew Award 2010

Airline Operations—Ground Staff Award 2010

Airport Employees Award 2010

Alpine Resorts Award 2010

Aluminium Industry Award 2010

Amusement, Events and Recreation Award 2010

Architects Award 2010

Asphalt Industry Award 2010

Book Industry Award 2010

Broadcasting and Recorded Entertainment Award 2010

Cement and Lime Award 2010

Cemetery Industry Award 2010

Coal Export Terminals Award 2010

Commercial Sales Award 2010

Concrete Products Award 2010

Dredging Industry Award 2010

Educational Services (Post-Secondary Education) Award 2010

Educational Services (Schools) General Staff Award 2010

Educational Services (Teachers) Award 2010

Electrical Power Industry Award 2010

Food, Beverage and Tobacco Manufacturing Award 2010

Gas Industry Award 2010

Hydrocarbons Field Geologists Award 2010

Hydrocarbons Industry (Upstream) Award 2010

Journalists Published Media Award 2010

Live Performance Award 2010

Marine Tourism and Charter Vessels Award 2010

Marine Towage Award 2010

Maritime Offshore Oil and Gas Award 2010

Meat Industry Award 2010

Oil Refining and Manufacturing Award 2010

Passenger Vehicle Transportation Award 2010

Pharmaceutical Industry Award 2010

Port Authorities Award 2010

Ports, Harbours and Enclosed Water Vessels Award 2010

Poultry Processing Award 2010

Premixed Concrete Award 2010

Professional Employees Award 2010

Registered and Licensed Clubs Award 2010

Seafood Processing Award 2010

Sporting Organisations Award 2010

Stevedoring Industry Award 2010

Storage Services and Wholesale Award 2010

Sugar Industry Award 2010

Surveying Award 2010

Timber Industry Award 2010

Vehicle Manufacturing, Repair, Services and Retail Award 2010

Wine Industry Award 2010