[2009] AIRCFB 923 |
|
DECISION |
Workplace Relations Act 1996
s.576H—Commission may vary modern awards
Finance Sector Union of Australia
(AM2009/9)
BANKING, FINANCE AND INSURANCE AWARD 2010
[MA000019]
JUSTICE GIUDICE, PRESIDENT |
MELBOURNE, 16 NOVEMBER 2009 |
[1] This decision concerns an application by the Finance Sector Union of Australia (FSU) to vary the Banking, Finance and Insurance Award 2010 1 by removing the exemption rate provision at cl.13.2.
[2] Clause 13.2 is in the following terms:
“13.2 Exemption rate
The following clauses will not apply to employees who are paid a salary, before overtime payments and shiftwork allowances, which is more than 15% above the Level 5 minimum weekly rate:
• clause 20.1–Span of hours;
• clause 21.1–Overtime and penalty rates other than call centres;
• clause 21.2(c)–Overtime and penalty rates call centres; and
• clause 16.2(b)(ii)–Stand-by and call-back allowances.”
[3] The application to delete the exemption provision relies on a variation to the Minister for Employment and Workplace Relations (the Minister’s) award modernisation request. The variation to the consolidated request, dated 2 May 2009, inserts paragraph 2(f). In our decision in relation to the application to delete the exemption provision in the Clerks—Private Sector Award 2010 2 we set out the submissions of the Minister in relation to this change and extracts from decisions regarding exemption provisions more generally.3 The Minister submitted that employees who are not high income employees should be protected by a complete and comprehensive modern award safety net of basic entitlements unless there is a history of exempting employees from coverage across a wide range of pre-reform awards and Notional Agreements Preserving State Awards (NAPSAs).
[4] In essence the unions with an interest in relation to this award rely on the change to the Minister’s request. The employers submit that there is a history of exempting provisions in a wide range of awards and NAPSAs.
[5] In the banking, finance and insurance industries there are a large number of enterprise awards which will not be directly affected by the making of this industry award. Of the 17 industry awards which will be replaced by this award, nine contain a partial exemption provision, in the sense that certain award provisions, sometimes only overtime, are not payable to employees paid in excess of a particular salary level. Of the 73 industry awards and enterprise awards applying across the sector, 44 have partial exemption provisions of one type or another.
[6] For the reasons contained in our decision regarding the Clerks—Private Sector Award 2010, we consider that the intent of the change to the Minister’s request is clear. We will delete the exemption provision. However, we believe that payment of an annual salary which includes compensation for certain award entitlements should continue to be available. We will insert in place of the exemption provision an annual salaries clause in the following terms:
“14. Annualised Salaries
14.1 Annual salary instead of award provisions
(a) An employer may pay an employee an annual salary in satisfaction of any or all of the following provisions of the award:
(i) clause 13—Minimum weekly wages;
(ii) clause 17—Allowances;
(iii) clause 22—Overtime and penalty rates; and
(iv) clause 23.3—Annual leave loading.
(b) Where an annual salary is paid the employer must advise the employee in writing of the annual salary that is payable and which of the provisions of this award will be satisfied by payment of the annual salary.
14.2 Annual salary not to disadvantage employees
(a) The annual salary must be no less than the amount the employee would have received under this award for the work performed over the year for which the salary is paid (or if the employment ceases earlier over such lesser period as has been worked).
(b) The annual salary of the employee must be reviewed by the employer at least annually to ensure that the compensation is appropriate having regard to the award provisions which are satisfied by the payment of the annual salary.
14.3 Base rate of pay for employees on annual salary arrangements
For the purposes of the NES, the base rate of pay of an employee receiving an annual salary under this clause comprises the portion of the annual salary equivalent to the relevant rate of pay in clause 13—Classifications and minimum wage rates and excludes any incentive-based payments, bonuses, loadings, monetary allowances, overtime and penalties.”
[7] We shall also amend the transitional provisions in the phasing schedule to ensure that exemption provisions in pre-modern award instruments will continue to apply until 30 June 2010.
BY THE COMMISSION:
PRESIDENT
1 MA000019.
2 MA000002.
Printed by authority of the Commonwealth Government Printer
<Price code A, PR990705>