[2009] AIRCFB 945 |
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
(AM2008/24, 35, 41, 64-92 and AM2009/10)
JUSTICE GIUDICE, PRESIDENT |
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CONTENTS | |
Paragraph | |
Attachment D—Labour hire/on-hire provision – application to modern awards | |
Attachment E—Group training organisations – application to modern award | |
[1] This decision deals with the award modernisation process and in particular the Stage 4 modern awards. The decision should be read in conjunction with earlier decisions concerning award modernisation and in particular our statement of 25 September 2009 accompanying the publication of the exposure drafts for the Stage 4 modern awards.1 The process is being carried out pursuant to statutory provisions and a request made by the Minister for Employment and Workplace Relations (the Minister) (the consolidated request). We note that the consolidated request has been varied on a number of occasions, most recently on 9 November 2009. 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).
[2] We have dealt with the statutory context governing award modernisation in a number of decisions over the past year or so. We refer in particular to the Commission’s decisions concerning the priority modern awards and the Stage 2 and 3 modern awards.2 We also refer to the decisions concerning the model transitional provisions.3 Some of the submissions received following the publication of the exposure drafts raised issues of general significance and it is appropriate to make some brief comments in relation to them.
[3] The Australian Council of Trade Unions (ACTU) raised the question of the adjustment of expense-related allowances. It submitted that such allowances should be adjusted in all modern awards by 1 January 2010 to take into account any movement in the relevant CPI group or sub-group up until September 2009. It also proposed that any adjustments in allowances in award-based transitional instruments should be reflected in modern awards also.
[4] There was insufficient exchange of views on these proposals to enable us to reach a fair conclusion. They raise a number of further questions about the manner and timing of the adjustment of expense-related allowances in modern awards. We suggest that the major industrial parties have discussions with a view to developing an agreed approach.
[5] In a submission directed to economic considerations, the Australian Chamber of Commerce and Industry (ACCI) referred to item 2(5) of Schedule 5 to the Transitional Act and continued:
“81. Consistent with ACCI’s previous submissions, we reiterate the following general recommendations for the final Stage IV process:
a. The Commission should provide detailed reasons for its decision in a statement to the modern awards addressing item 2(5) (in addition to considerations in the request and Part 10A that the Commission must take into account).
b. Where evidence is provided that indicates a modern award may increase labour costs, increase the regulatory burden on business or negatively impact upon jobs or productivity, these matters must be addressed by moderating provisions in the modern award as appropriate. ACCI notes that the Full Bench can vary a modern award on its own motion or deal with matters upon receiving an application to vary under s.576H.
c. When considering transitional provisions, these matters must also be taken into account.”
[6] ACCI advanced similar submissions in the consultations preceding the Commission’s decision on model transitional provisions. In that decision we dealt at some length with those submissions.4 We add the following observations. Where we have been presented with economic material relating to costs, the regulatory burden or employment, we have taken it into account. Material of that kind has not been frequently provided and the material that has been provided has sometimes been incomplete. For example, the material might not deal with actual costs or might focus on provisions which increase costs without any allowance for provisions which reduce costs. This is not a criticism of those concerned, but may help to explain why particular submissions have not been acted on. At the general level, however, our decision, has been made with all of the statutory requirements firmly in mind and the evidence and other material presented to us has been examined in that context.
[7] We deal now with the Stage 4 awards.
STAGE 4 INDUSTRIES/OCCUPATIONS
[8] We now make the Stage 4 modern awards as identified and described below. A list of the awards is Attachment A. 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 25 September 2009.5
[9] We indicated in our statement of 25 September 2009 that we did not consider a modern award should be made for accountancy practices. We said in addition:
“[15] Two matters arise for consideration, however. The first is that it would appear that the Miscellaneous Award 2010 will cover the businesses of accountants as this is not an industry covered by a modern award. The second and related consideration is the treatment of transitional provisions where regulation currently exists for accountants.”6
[10] As we indicate later in this decision, we have made alterations to the coverage of the Miscellaneous Award 2010. As a result accountancy practices will not be covered by a modern award. The position in relation to accountancy practices covered by award-based transitional instruments will be considered when those instruments are reviewed as envisaged by item 3 of Schedule 5 to the Transitional Act.
Animal care and veterinary services
Animal Care and Veterinary Services Award 2010
[11] When the exposure draft was issued the scope of the draft was restricted to private veterinary clinics and hospitals. Since that time, significant submissions have been received from the Royal Society for the Prevention of Cruelty to Animals (RSPCA) who advanced the proposition that the draft should be expanded to include the animal care industry. In addition, the Association of Professional Engineers, Scientists and Managers, Australia (APESMA) continued to press for occupational coverage for veterinarians.
[12] Other submissions from interested parties who made comments leading up to the exposure draft stage focussed upon changes which they believed would be appropriate having regard to the draft and the position they took.
[13] As a result of the participation of the RSPCA we have been able to consider more fully the existing award coverage together with the submission now made. Against that background we have decided to expand the coverage of the proposed award to cover the RSPCA and like institutions. We have defined the animal care industry to include the work and activities of the RSPCA and like bodies. We have decided not to make the award an occupational award as the potential coverage of such an award, beyond the areas we now propose to deal with, is unclear.
[14] We have altered the classification descriptors to make them more generic, covering all employees of private veterinary practices and animal care establishments. We have also included an inspector classification to cover RSPCA inspectors. Because of the nature of the work of inspectors, and the authorities they hold, we have used the veterinarian’s rates to strike a relativity.
[15] In our statement of 25 September 2009 we also invited parties to comment on the correct relativity for a veterinary nurse. At the entry level veterinary nurses require a certificate IV. No justification was advanced to classify them at the certificate III level of $637.60. We are satisfied that the correct approach is to classify them at the level above $637.60.
[16] A number of other changes have been made to the exposure draft as a result of the submissions which it is not necessary to comment on.
Aquaculture Industry Award 2010
[17] We have decided to make an award which is in similar terms to the exposure draft. We have made some significant alterations in response to the submissions of the National Aquaculture Industry Council (AIC). We have altered the coverage provisions to exclude hatchery work and have therefore removed the corresponding classifications, descriptors and wage rates which were contained in the exposure draft. We have also added to the coverage provisions work performed by employees within the remaining classifications which is done for the initial preparation of aquaculture products for market.
[18] We have reformatted the classification structure and adopted the wage rates and wages structure proposed by the AIC. With the exception of the deletion of the hatchery classifications referred to above, the resulting classifications descriptors and wage rates have substantial similarity with those proposed by the Australian Workers’ Union (AWU) which we included, albeit in a different format, in the exposure draft. The hours provisions of the award now provide that ordinary hours may be averaged over a period of 12 weeks.
[19] We also note that the alterations to the coverage of the Miscellaneous Award 2010 should ensure that that award will not cover those parts of the aquaculture and fishing industries which have not previously been covered by awards and which are not covered by the Aquaculture Award 2010.
Car Parking Award 2010
[20] There are a number of changes to the terms of the exposure draft. In particular, modifications have been made to provisions dealing with payment of wages and rostering, changes have been made to the first aid and laundry allowances whereby part-time and casual employees receive pro rata payments or payments for each shift worked and a new clause has been included relating to employee transfer for operational reasons. There has been no change to the rates of pay, span of hours, or meal and rest break provisions in the exposure draft.
[21] We have not included transitional provisions relating to hours of work in Queensland. We are not convinced that there is sufficient reason to depart from our decision of 2 September 2009 which limited the matters to be dealt with in transitional provisions.
[22] There is one change in the classification descriptors, being the addition of a further indicative task for a Car Parking Officer Level 2.
Pest Control Industry Award 2010
[23] A number of changes have been made to the exposure draft. The definition of pest control industry has been varied to reflect the more detailed and practical description provided by the Australian Environmental Pest Managers Association (AEPMA) and the Manufacturing and Associated Industries and Occupations Award 20107 (Manufacturing Modern Award) has been inserted in the list of excluded awards.
[24] We have decided not to include a supervisory classification but note that the award provides for a leading hand allowance. A Level 5 inspector classification has been included.
[25] The home telephone allowance and the provision for the reimbursement of licence fees have been deleted however the allowances relating to work in a fumigation depot and treatment of verminous or decomposed human bodies have been retained.
[26] We have altered the clause relating to the payment of wages as sought by the Australian Federation of Employers and Industries (AFEI) but there has been no change to the span of hours, rest breaks and penalty rates provisions in the exposure draft except for a minor clarification in relation to the interaction of shift penalties with other penalties.
[27] A clause relating to annual close-down sought by AFEI has been included in an amended form. We have not included transitional provisions relating to hours of work in South Australia and Queensland. We are not convinced that there is sufficient reason to depart from our decision of 2 September 2009 which limited the matters to be dealt with in transitional provisions.
Christmas Island and Cocos (Keeling) Islands
[28] In our statement of 25 September 2009 we said that we intended to defer consideration of the modernisation of the Christmas Island Resort and Christmas Island Laundry Redundancy Award 19988 and the Christmas Island Severance Pay Award 2002.9 Nothing has occurred in the consultations to lead us to depart from that course. In relation to the UCIW Christmas Island Building and Construction Award 2004,10 we indicated that its coverage would be subsumed in the coverage of a number of modern awards applying in the construction sector. As we said in our statement, those awards will need to be amended to include some provisions which deal with the particular circumstances of Christmas Island. Those provisions deal mainly with fares to the mainland and district allowances.
Corrections and Detention (Private Sector) Award 2010
[29] As we understand it none of the public sector correctional services in Australia is amenable to coverage by a modern award made under Part 10A of the WR Act. There are only three private sector employers in the corrections and detentions industry as we have defined it. Following the publication of the exposure draft for this industry, those three employers and the relevant unions reached complete agreement on the terms of a modern award. We have adopted that agreed draft albeit with some drafting changes that do not alter the substance of the agreed draft. We have changed the wording of cl.20.1(a) to remove a possible tension between cl.20.1(a) and cl.20.2. That change is intended to improve the clarity of the document without changing its effect. This industry operates 24 hours a day, seven days a week and it is a feature of relevant awards that ordinary hours can be worked at any time. Subject to the usual types of restrictions relating to maximum shift lengths and the like, shiftworkers can be required to work their ordinary hours at any time. There is also provision for daywork within the hours specified in cl.20.2, but dayworkers can be required to move to shiftwork to meet operational requirements.
Professional Diving Industry (Recreational) Award 2010
Professional Diving Industry (Industrial) Award 2010
[30] The awards to apply in the diving industry can be dealt with together. In relation to the recreational award, while there have been a number of minor or technical changes in the terms of the exposure draft, there are also some matters which should be specifically mentioned. We have rejected a proposal for a general clause permitting commission payments to be offset against or absorbed into penalty payments and various proposals to reduce protections for employees in the hours of work provisions. We have provided for a minimum payment of four hours for part-time employees on boat trips. There was no sound basis advanced for the other proposals. On the other hand we have included a provision for a loading for travelling to and from distant work which appears in the relevant award and was inadvertently omitted from the exposure draft. We have decided not to remove a reference to AS2299.3 from the classifications provision. While it was claimed to be irrelevant or confusing or both it appears in the relevant award and its removal from the draft was opposed. This is a matter which could be addressed in due course if the reference to the standard gives rise to problems.
[31] In relation to the industrial award, there have been no changes of significance in the terms of the exposure draft. We have decided not to retain the casual loading of 27.5%. To do so would depart from our general approach without justification. The loading will be fixed at the standard rate of 25%. We have also declined to include provisions from the relevant award which place limitations on the employment of casuals and other employees during short term projects. No objective justification was advanced for provisions which appear to us to be unduly restrictive.
Dry cleaning and laundry services
Dry Cleaning and Laundry Industry Award 2010
[32] Despite submissions we should do so we have not made any change to the award coverage provisions. It appears to us that the industry definition and coverage clause in the draft are adequate.
[33] Some changes have been made to the part-time and casual employment provisions. We have not included any specific provision relating to Victorian part-time employees who were employed prior to August 1998. The special loading which applies to these employees will apply subject to the operation of the model transitional provisions in Schedule A to the award.
[34] While we have decided to retain the separate dry cleaning and laundry streams for wages, hours of work and classification structures which appeared in the exposure draft we do not rule out the possibility that these provisions could be rationalised at some time in the future. On the material available to us maintenance of separate structures seems the least disruptive course.
[35] The restriction on the proportion of junior employees who may be engaged in the laundry sector of the industry has been deleted. The limitation on juniors working shiftwork has been reduced to those who are under 18 years of age. The apprentice wage rates have been extended to non school-based apprentices.
[36] At the request of the unions and with the support of the Textile Rental and Laundry Associations of Australia we have decided not to include any piecework provisions in the award. Should such provisions be warranted this issue can be reconsidered.
[37] In relation to allowances, minor adjustments have been made to the provisions relating to first aid and meal allowances and we have retained the tool and uniform allowances consistent with the exposure draft. A definition of “foul laundry” has been included to clarify the circumstances in which the disability allowance should be paid. If there is later agreement on an amended form of the definition an application to vary the award may be made.
[38] In relation to hours of work, we have retained the span of hours for both dry cleaning and laundry sectors as set out in the exposure draft. The penalty rates have also been retained. However a morning shift provision has been introduced at the request of various employer parties and the maximum shift length in the laundry sector has been increased to ten hours. We have decided to retain a paid meal break for employees working more than 1½ hours overtime but have reduced the length of the break to 20 minutes. The provision for washing time has been deleted.
[39] We have not included transitional provisions for the reduction of the 40 hour week in Queensland. We are not convinced that there is sufficient reason to depart from our decision of 2 September 2009 which limited the matters to be dealt with in transitional provisions.
Educational services – preschool teachers
Educational Services (Teachers) Award 2010
[40] This award has been varied to include pre-school and early childhood teachers employed in children’s services. There are only minor changes to the draft variation following consultation. Most of the changes are to achieve consistency with respect to matters such as span of hours for teachers and other workers employed in the same children’s service. The provisions in relation to notice periods for varying the hours of part-time employees and the maximum period of employment for casual teachers have also been varied to reflect current differences between teachers in schools and those employed in children’s services.
Entertainment and broadcasting industry (other than racing) – Travelling shows
Travelling Shows Award 2010
[41] In relation to the Travelling Shows Award 2010 we have noted concerns about the coverage of this award and have amended the coverage clause to clearly indicate that the award is restricted to employees of itinerant employers. We have determined that this modern award should not cover any other employers. We have retained the current award exemption for immediate family members but are not persuaded to retain any wider exemption.
[42] Other changes sought to the exposure draft have generally not been adopted. We are satisfied that the positions are classified at appropriate levels and that the correct standard rate for the calculation of allowances is the Grade 2 level. While we are not convinced that the salary averaging provision contained in the current award is appropriate for inclusion in a modern award, we have included a provision for the averaging of hours over a four week period which should assist in dealing with uneven workload demands. Finally, although it is not a feature of the current award, we are satisfied that the modern award should provide for the payment of overtime penalties for full-time and part-time employees.
Fire Fighting Industry Award 2010
[43] A key issue canvassed in submissions was the status of the Victorian Firefighting Industry Employees Interim Award 200011 (Victorian Firefighting Award) and whether a modern award made as part of the current process under Part 10A of the WR Act is capable of covering the Metropolitan Fire and Emergency Services Board (MFESB).
[44] For reasons that we have already given, we have proceeded on the basis that the MFESB is a constitutional corporation.12 In submissions made shortly after the publication of the exposure draft, the United Firefighters’ Union of Australia (UFUA) argued that the MFESB was part of the “State reference public sector transitional award modernisation process” provided for in Schedule 6A of the Transitional Act and, consequently, not part of the current award modernisation process under Part 10A of the WR Act. We disagree. Relevantly, the State reference public sector transitional award modernisation process only applies to a “State reference public sector employer”. That expression is defined in item 2(3) of Schedule 6A of the Transitional Act as “a State reference employer that is a State public sector employer as defined in section 30A of the FW Act”. A “State reference employer” is defined in item 2 of Schedule 2 and item 2A(4) of Schedule 3 to the Transitional Act to mean “an employer that is a national system employer only because of s.30D of the Fair Work Act.” Assuming the MFESB is a constitutional corporation, it is a “national system employer” by virtue of that fact13 and therefore cannot be a “State reference employer” because it is not a national system employer “only” because of s.30C of the Fair Work Act 2009 (Fair Work Act).
[45] In a later submission the UFUA advanced a different argument, namely, that the Victorian Firefighting Award, as a pre-reform award, is an enterprise award that applies only to the MFESB and, as such, it is not part of the current award modernisation process under Part 10A of the WR Act. The MFESB responded with a submission to the effect that the Victorian Firefighting Award, as a pre-reform award, applies not only to the MFESB but also to private sector employers by virtue of a common rule declaration in relation to the firefighting industry in Victoria. The UFUA’s argument was supported and elaborated upon by the Australian Government in a late submission. In particular, the Government argued that the true effect of item 4 of Schedule 4 to the Workplace Relations Amendment (Work Choices) Act 2005 and the common rule declaration made in relation to the fire fighting industry in Victoria is that only the MFESB is bound by the Victorian Firefighting Award and that private sector employers covered by the common rule declaration are not properly to be regarded as bound by the Victorian Firefighting Award. We note that both the MFESB and the Government have relied upon the decision of the Full Federal Court in Poulos v Waltons Stores (Interstate) Ltd14 as supportive of their ultimate and opposing contentions.
[46] The legal position is not clear cut. Resolution of it would need to deal with the argument advanced by the MFESB based on the definition of “enterprise award” in s.576U of the WR Act and the submission that notwithstanding the extended definition of “single business’ in s.322 of the WR Act, the Victorian Firefighting Award is not an award “that regulates the terms and conditions of employment in a single business only (being the single business specified in the award)”.
[47] It is not necessary to decide this question. Our task is to make a modern award for the fire fighting industry. We do so on the basis that it contains an appropriate safety net. We are not persuaded that we should refrain from making any modern award for the fire fighting industry. As required by s.576V(3) of the WR Act, the modern award we have made is expressed not to cover an employer who is bound by an enterprise award. If the contentions of the UFUA and the Australian Government are correct then the modern award we have made will not cover the MFESB. If the contentions of the MFESB are correct then the MFESB will be covered. Of course, only a court can make a binding determination in that regard. Given that the contentions of the MFESB may ultimately be held by a court to be correct it is appropriate that the modern award for this industry be crafted with that in mind. We should note that we do not think it appropriate to make a separate modern award for the public sector that will be, in effect, an enterprise award or have no application at all. However, we have made separate provision for the private and public sectors in relation to some conditions.
[48] The Victorian Firefighting Award, in so far as it applies to the MFESB and putting aside the fire service communications controllers, appears only to permit engagement of employees on a full-time basis on a “10/14 roster”. That is a roster whereby an employee works a predefined pattern of 10 hour day shifts and 14 hour night shifts such that the employee works an average of 42 hours a week over an eight week cycle with those average weekly hours made up of 38 ordinary hours and two hours of overtime with the remaining two hours accumulating to be taken as accrued leave. The UFUA opposed the exposure draft to the extent that it permitted firefighters to work on a basis other than the 10/14 roster.
[49] We acknowledge that the 10/14 roster is the standard method for arranging the work of most firefighters in the various public sector fire services in Australia. It is workable in a large fire service which operates fire stations on a 24 hours a day, seven days a week basis. However, we are not persuaded that a public sector employer covered by a modern award for the fire fighting industry should be prevented from employing firefighters except on a 10/14 roster. So far as the private sector is concerned, we note the submissions of Transfield which raise the realistic possibility that its key client may require day shift only fire and rescue services. The modern award makes provision for that possibility in the private sector and allows a greater degree of flexibility in hours of work and rostering in that sector. In the public sector it permits employment on bases other than the 10/14 roster provided that the employee receives no less than they would have received on the 10/14 roster. We have also included “special roster” provisions adapted from the part of the Victorian Firefighting Award that applies to the Country Fire Authority (CFA) on the basis that this was one way in which this can be achieved. It may be that the hours of work and rostering provisions in the modern award should be revisited at a time when it is practicable to canvass more extensive argument on these issues.
[50] The UFUA made strong submissions against the inclusion of the model award flexibility clause. We are required to include a flexibility clause. The model which has been developed pursuant to the consolidated request applies almost without exception in modern awards.15 None of the arguments raised by the UFUA warrants a departure from the model clause in this award although they may be relevant in the foreshadowed review of the clause.
[51] The exposure draft made provision for part-time employment. The UFUA made strong submissions against that position and contended that the Commission has already made a “determination” that part-time employment is not appropriate in this industry. That contention appears to be based on the award simplification decision by Commissioner Hingley in relation to the Victorian Firefighting Award.16 As appears from the UFUA’s own submissions, part-time employment had not been part of that award and the CFA made application for the inclusion of part-time employment as part of the award simplification proceedings for that award. The UFUA filed evidence arguing against the CFA’s application. However, ultimately, the CFA abandoned its claim so that there was a consent submission against the inclusion of part-time employment. Commissioner Hingley’s decision makes no mention of part-time employment. In those circumstances, we do not see that decision as constraining us from considering for ourselves whether part-time employment is appropriate in this industry and we are far from persuaded that part-time employment should not be available. We note that while it is not provided for in Victoria it is provided for in several other States. Nevertheless, in the award we have made we have limited the availability of part-time employment to the private sector reserving for further consideration the issue of whether part time employment should also be available in the public sector.
[52] In relation to classifications we note that no party supported the inclusion of classifications for administrative and technical employees and several parties opposed the inclusion of those classifications. They have been removed. For private sector employers such employees will be covered by occupational awards, namely the Clerks—Private Sector Award 2010 (Clerks Modern Award) and the Professional Employees Award 201017 (Professional Employees Award). So far as the MFESB is concerned we note that there is an enterprise award covering those classes of employees.
[53] We were persuaded by the submissions of the MFESB that the classifications of qualified firefighter (with leading firefighter qualification) and senior firefighter have a particular history that makes them inappropriate for inclusion in a modern award for this industry. Those classifications have been omitted. The classification of commander has also been omitted. We note that commanders in the MFESB are covered by an enterprise award and their position can be dealt with as part of the enterprise award modernisation process.
[54] In relation to personal/carer’s leave and parental leave, consistent with our approach generally, we have decided not to supplement the National Employment Standards (NES). We are not persuaded that the pressing necessity leave, special leave and study leave provisions in the Victorian Firefighting Award are appropriate for inclusion in a modern award that is intended to be a safety net.
[55] The UFUA objected to a number of clauses in the exposure draft in a summary way. We comment on some of those objections. We did not replicate the limitation in cl.4.2 of the Victorian Firefighting Award because we regard it as a restrictive work practice that is inappropriate for inclusion in a modern award. It is not appropriate to make uniforms subject to agreement with a union. The watch room allowance in the Victorian Firefighting Award is enterprise specific applying to one fire station only. The emergency medical services (EMS) allowance in the Victorian Firefighting Award, on its face, relates to a trial that has long since past. The change of residence provision in the Victorian Firefighting Award contain elements that are specific to Victoria and therefore inappropriate for inclusion in a modern award. We are satisfied that adequate provision has been made for reimbursement of such expenses in the award we have made. Consistent with the approach we have adopted in other modern awards, accident pay is provided for by way of a standard transitional clause.
[56] We note that in its submissions of 16 October 2009 the UFUA proposed that if we were intending to make an award with terms contrary to particular submissions it had made then it applied to put substantial material before us, including calling evidence. The procedure for the making of modern awards was established many months ago and is referred to in many of the Commission’s decisions.18 The process provided an adequate opportunity to the UFUA to put whatever material it wished before the Commission both before and after the publication of the exposure draft.
Funeral Industry Award 2010
[57] The Funeral Industry Award 2010 contains a number of changes resulting from submissions following the release of the exposure draft. In relation to classifications, we have included some additional descriptors in the definitions clause and made other changes to provide clarity in the application of the grading structure. Clauses 12.3 and 15.8 have been redrafted. We have also included an additional grade to cover the qualified embalmer.
[58] We have not acceded to a submission by the Liquor, Hospitality and Miscellaneous Union (LHMU) to include an industry allowance. We think that the existing specific allowances are adequate compensation for disabilities.
[59] A number of employer parties pressed for a wider spread of ordinary hours than was included in the exposure draft. We are satisfied the prevailing industry standard which provides for averaging of hours over a period of up to four weeks is sufficiently flexible.
[60] We have deleted cl.24.2 of the exposure draft which referred to removals on weekends and public holidays. It is not an industry standard and was opposed by the employers. The overtime and penalty provisions sufficiently cover this aspect of work.
Gardening services (remainder)
Gardening and Landscape Services Award 2010
[61] A preliminary question arose concerning landscaping works on building sites. A number of representatives of landscape gardening employers submitted that it will be difficult to determine whether the Building and Construction General On-site Award 201019 (Building and Construction Award) or the Gardening and Landscape Services Award 2010 applies at particular times. They also submitted that the coverage clause in the Building and Construction Award should be amended to exclude landscaping works on commercial building projects. This position was based primarily on concerns that the Building and Construction Award is designed to cover project-based work and not ongoing employment and that a number of its provisions should not be applied to landscape gardening employers and their employees. Examples were given of the redundancy payments and apprentice payments. The AWU and the Construction, Forestry, Mining and Energy Union (CFMEU) opposed the amendment.
[62] It should be made clear that the Building and Construction Award is not intended to cover employers engaged in landscaping which is not part of a building project. This is so even where the work is carried out at a location which is, or has recently been, a commercial building site. The relevant terms of the Building and Construction Award are cll.4.7(a)(i) and 4.7(b)(viii). We note that these provisions require, among other things, a clear connection between the landscape gardening works and the activities of an employer in the construction industry. While we acknowledge that there may be cases in which it will be difficult to draw the line between the coverage of the two awards, the solution proposed may lead to even greater problems. In the circumstances we do not consider it is desirable to disturb existing arrangements.
[63] In relation to the coverage of the modern award itself, the award is expressed not to cover employers or employees covered by a number of specified modern awards. We have added three awards to the list. We have decided not to include a provision for conversion of casual employees on the basis that such provisions have only a limited application in the industry. We have given consideration to concerns expressed by employers in South Australia about the increase in minimum wages for some classifications. While we note the concerns the effect of the transition will be ameliorated by the model phasing schedule and we do not think any other action is warranted.
[64] We have made some alterations to allowances, including the deletion from the exposure draft of the carpenter’s allowance and the curator’s allowance, and we have added three funds to the list of default funds in the superannuation provision.
[65] We noted in our statement of 25 September 2009 that we did not intend to make an award for this industry.20 We confirm that position.
Health and welfare services (remainder) – Ambulance services
Ambulance and Patient Transport Industry Award 2010
[66] A number of amendments were suggested which were designed to delineate those provisions which would apply only to the non-emergency patient transport sector. We have not been persuaded to adopt this approach. The pre-reform award in Victoria has applied to both sectors in this industry since 2002 and it generally does not contain the differentiation sought.21
[67] The wage rates were not greatly contested and largely reflect the rates in the pre-reform award applying in Victoria. The classification definitions have been altered to provide for some updated education requirements. The rest period after overtime has been amended to eight hours throughout the clause. We have included provision for alternative penalty options for working on a public holiday.
[68] We did not include the Royal Flying Doctor Service’s communication employees in the exposure draft for the reasons outlined in our statement of 25 September 2009.22 Our view has not altered and the award will not include them.
Health and welfare services (remainder) – Children’s services
Children’s Services Award 2010
[69] Following submissions and consultations on the exposure draft changes have been made to this award to reflect the consensus of the major parties on span of hours, minimum shift lengths, overtime for part-time employees and junior rates. We have also rectified an error in the classification structure concerning the level for employees classified as ‘E’ workers under the Western Australian transitional award-based instrument and limited the application of non-contact time to employees with programming responsibilities. There are also some minor changes to allowances.
[70] We have taken into account the views of the parties with respect to the transitional provisions. This has resulted in some modification of the model clause. We have also taken into account the position of non-teaching staff in pre-schools who currently work according to the same provisions, with respect to school vacations, as teachers. The exposure draft has been altered in some other respects to make the conditions of teachers and children’s services employees in the same workplace more consistent.
Health and welfare services (remainder) – Fitness, lifestyle and leisure services
Fitness Industry Award 2010
[71] The coverage clause of the exposure draft of the Fitness Industry Award 2010 has been amended to include recreational camps. While YMCA Australia sought the inclusion of recreation services and centres, leisure services and centres and unlicensed child care facilities in the coverage clause, we consider these are already covered by the terms of the clause or by the modern Amusement, Events and Recreation Award 2010,23 (Amusement, Events and Recreation Award) as are contractors to local government running leisure and fitness centres. Further, we consider the classification structure sufficiently indicates the employees covered by the award. The award excludes employers or employees covered by the Amusement, Events and Recreation Award from its coverage. It may be appropriate to include a reciprocal exclusion in the Amusement, Events and Recreation Award.
[72] The types of employment largely remain as in the exposure draft and are capable of embracing seasonal and temporary employment. However, we have clarified the operation of the broken shift provisions of the award and also provided for Level 2 instructors to be engaged in casual employment for one hour. We are not persuaded the other changes sought in respect of the types of employment are warranted having regard to the prevailing underlying conditions in the relevant awards and NAPSAs.
[73] The LHMU sought higher minimum wages than those in the exposure draft in anticipation of developments expected to occur in relevant training packages in 2010. We are not prepared to anticipate those developments, so the minimum wages reflect those prevailing in the underlying awards and NAPSAs. Nonetheless, we have adjusted the Level 3 rate to overcome an anomaly with the National Training Wage rates. That adjustment has necessitated some minor adjustments to the allowances which are based on the Level 3 minimum wage.
[74] We have also limited the leading hand/supervisor allowance to those employees at Level 4 or below, as above that level we consider the minimum rates embrace such duties. A sleepover allowance has been included in the award in light of it now covering recreational camps. First State Super has also been added to the superannuation clause.
[75] While YMCA Australia sought changes to the classification definitions, these were not embraced by others and we have retained the classification definitions largely as they were in the exposure draft.
[76] We have not been persuaded to make any of the other changes sought to the exposure draft given the prevailing terms of the relevant awards and NAPSAs and the availability of the award flexibility clause. The name of the award will remain as in the exposure draft to avoid confusion with other modern awards.
Health and welfare services (remainder) – Social and community services
Social, Community, Home Care and Disability Services Industry Award 2010
Labour Market Assistance Industry Award 2010
[77] We have been persuaded by the submissions of various parties not to make an award to cover the group training sector. Group training apprentices will be covered by the applicable award of the host employer consistent with our conclusions in the part of this decision dealing with labour hire. We have also decided that home care employees will be solely covered by the Social, Community, Home Care and Disability Services Industry Award 2010. Clauses 3.1, 4.1 and 22.7(b) of the Aged Care Award 201024 will be amended accordingly and cll.22.6(b) and 22.7(c) of the award deleted. Both this award and the Labour Market Assistance Industry Award 2010 contain a salary packaging provision.
[78] We have also decided to include provisions relating to salary sacrifice in both awards. We maintain the concern we expressed when we published the exposure draft, however all parties, including the Australian Government, asked that we make provision for salary sacrifice. During any proceedings which may result from the Heads of Agreement between the Australian Municipal, Administrative, Clerical and Services Union (ASU) and the Australian Government, which we refer to in the next paragraph, the interaction between a safety net approach, attraction and retention, award reliance and bargaining may need consideration.
Social, Community, Home Care and Disability Services Industry Award 2010
[79] At the outset it is necessary to deal with proposals advanced by the ASU to defer the operation of parts of the modern award to permit it to pursue an application to establish new wage rates based on pay equity or work value grounds. The ASU and the Australian Government are parties to Heads of Agreement which provide for the adoption of pre-modern award rates in the modern award on an interim basis pending the outcome of the foreshadowed claim. The ASU proposed that we include a schedule of transitional provisions incorporating conditions from some 32 awards and NAPSAs and that any provisions of the modern award affecting pay or pay-related conditions should not come into operation. A number of other interested parties, including some state governments, supported the ASU position. The proposal was opposed to varying degrees by a number of representatives of employers.
[80] We have decided to make a modern award based on the terms of the exposure draft but with a number of alterations some of which we deal with below. The award will include the classifications and minimum wages which appear to us, on the material available at this time, to be appropriate for a modern award in this industry. We accept the force of the submissions made that in the circumstances it would be inconvenient to say the least to introduce new classifications and minimum wages for the industry covered by the award when a significant case is contemplated before Fair Work Australia next year. We have decided that the operative date for the implementation of the new classifications and wages should be delayed until 1 July 2011.
[81] In relation to transitional provisions, we do not intend to adopt the detailed schedule proposed by the ASU for reasons which we set out in our decision of 2 September concerning model transitional provisions. Furthermore, to the extent that the Heads of Agreement are relied upon, it is tolerably clear that the Heads of Agreement are primarily concerned with rates of pay and there is no warrant to delay the implementation of other conditions, whether pay-related or not. The model transitional provisions will be included in the modern award, but cl.2.3 of the phasing schedule will be modified to substitute 2011 for 2010.
[82] We mention some of the significant changes from the terms of the exposure draft. The definition of the social and community services sector has been amended to include organisations engaged in policy, advocacy or representation work in this sector.
[83] The minimum period of engagement for casuals has been altered to take into account the different sectors of this industry. We have altered the span of hours to provide for work in ordinary hours between 6.00am and 8.00pm Monday to Sunday reflecting what we take to be the critical mass of provisions in the relevant instruments.
[84] For social and community and crisis accommodation employees the overtime rate has been amended to provide for payment of time and a half for the first three hours. The minimum payment for an employee recalled to work overtime has been altered to two hours. The penalty rate for working ordinary hours on a Sunday has been amended to double time.
[85] We have declined to supplement the NES for the additional personal/carers’ leave currently provided for in the Social and Community Services – Victoria – Award 2000.25 Supplementation in this area has been rare in modern awards and no sufficient case has been made out for it in this award.
Labour Market Assistance Industry Award 2010
[86] We published an exposure draft called the Employment Services Industry Award 2010 which covered the group training sector as well as the labour market assistance sector. As we have indicated above, we have decided not to make an award for the group training sector. The award is based on the exposure draft but without the provisions referable to the group training sector. The award is called the Labour Market Assistance Industry Award 2010.
[87] The relevant classification definitions in the draft have not been altered. Although there was consensus between the key parties in this industry that the classification structure was partially outdated and difficult to apply, there was no agreement as to what would replace it. It may be useful for the parties to review the classification definitions in the future.
[88] Included in the modern award is an additional week’s annual leave arising out of the current remote localities benefit as it applied to particular employees on 31 December 2009.
[89] The modern award includes provisions for sessional employees and for flexible working hours none of which were in the exposure draft.
Health and welfare services (remainder) – Supported employment services
Supported Employment Services Award 2010
[90] With several minor exceptions the modern award reflects the terms of the exposure draft which had been developed with the assistance of the parties.
[91] We have decided to provide that those organisations previously permitted to apply an otherwise restricted Wage Assessment Tool (WAT), on or before 27 June 2005, might continue to do so. To do otherwise is likely to create instability for those services involved, although it is not our view that in the future service specific WATs should be taken as appropriate to another service without it being evident that there are circumstances justifying such an approach.
[92] The Payment of Wages – Waiting Time provision has been amended to provide that no penalty accrues to an employer where the delay occasioning waiting is for a reason beyond the direct control of the employer.
[93] In relation to superannuation, we have decided not to alter the provision, not adjusted for many years, whereby an employee with a disability being paid less than 80% of the full award wage has a superannuation contribution made of either 3% of ordinary time earnings or $6.00 per week, whichever is the greater. This payment has relevance in this sector because significant numbers of employees with a disability earn less than $450 per month. Mindful that many employers not currently bound by the award do make provision at varying levels for superannuation contributions for employees with a disability, we have concluded that the current provision should be included in the modern award. We have also noted the National Disability Services 16 October 2009 written submission, “…that the contribution level should not be adjusted at this stage” and the Parliamentary Secretary for Disabilities and Children’s Services 30 November 2009 correspondence to the Commission, indicating that it was the Australian Government’s intention to consult relevantly with stakeholders early in 2010. Should an application be made in the future for review of this provision it will be dealt with in the normal way.
[94] Submissions have been received over the last few days indicating that agreement has been reached between the ACTU, the LHMU and Australian Business Industrial as to a new allowance and a wide range of detailed classification and progression matters. Although the level of agreement is very encouraging, the late filing of these submissions has not permitted comment from any other industry organisation. Consequently we are unable to give effect to these proposals. Fair Work Australia is of course available in the New Year to assist in ensuring industry wide discussions, and any application to vary, are brought to finality.
Indigenous organisations and services
Aboriginal Community Controlled Health Services Award 2010
[95] The National Aboriginal Community Controlled Health Organisation (NACCHO) pressed for the inclusion of an additional clause dealing with the recognition of aboriginal self-determination and its application to the resolution of any disputes.
[96] We acknowledge the importance of the right to self-determination for indigenous Australians. We note the particular significance of the United Nations in that regard. We have generally not, in this award modernisation process, inserted provisions that go to an aspiration or declaration. We also note that the provisions suggested by NACCHO are opposed by a number of unions. We have decided not to insert such a provision.
[97] We were urged by some parties to revise provisions set out in the exposure draft that went to part-time and casual employment, higher duties, travelling and fares. We do not consider that there is sufficient reason to alter the provisions that were set out in the exposure draft. They have been included in the modern award.
[98] The Health Services Union drew attention to the rates for dental assistants which it said were less than those applying to dental assistants in the Health Professionals and Support Services Award 201026 (HPSS Award). In our statement of 25 September 2009 we explained that the services provided by aboriginal community controlled health organisations are notably different from what might be called mainstream health services, including as to the work that is performed by its employees. A ready comparison with the HPSS Award is not easily made. However, on closer examination of the definitions, we have decided to adjust the higher grades (4 and 5) so that the rates accord with those found in the HPSS Award.
[99] A number of matters arose relating to allowances. We were asked to better define certain provisions in the bilingual qualification allowance and we have done so. The ACTU sought a provision for the payment of a meal allowance in circumstances where some overtime is worked. We agree. We have decided to include the relevant provision from the HPSS Award. The LHMU asked us to include an allowance going to relocation and removal. We consider that the provisions suggested largely go to recruitment. In the absence of more information, we do not consider that this should be regulated by this award.
[100] We have accepted the submissions of the Chamber of Commerce and Industry WA and inserted Westscheme as a nominated superannuation fund. We have also confirmed that time off in lieu of payment for overtime is on the basis of an hour off for each hour worked.
[101] NACCHO pressed for the provision of National Aboriginal and Torres Strait Islanders Observance Day (NATSIO Day) as an additional public holiday. Some other employers were opposed to this. We recognise that NATSIO Day is an important symbolic and cultural event. We have not, however, inserted additional public holidays in modern awards in recognition of the Parliament’s determination to regulate the number of public holidays through the NES. Consequently, we have decided not to insert NATSIO Day as an additional public holiday. The provisions as to substitution (now slightly varied) might in any case be of assistance.
[102] There was some difference between the unions and NACCHO concerning the definition of aboriginal health worker. On the basis of those submissions we have revised the definitions to incorporate the draft of NACCHO as well as the suggestions of the LHMU. In particular we have limited Grade 1 to the first year (and not up to the third year) of employment. We have incorporated the emerging occupations of aboriginal community health worker (albeit limiting it to Grades 1 and 2 for now) and finally, have made it clear that Grade 2 is applicable to employees with Certificate III training while Certificate IV trained persons would be classified at Grade 3.
[103] There was disagreement as to how aboriginal knowledge and cultural skills (Levels 1, 2 and 3) would apply to the classifications and concern that they might unfairly impact on progression. We have decided to apply the relevant skill to each but as a desirable rather than a necessary skill.
[104] Finally, we confirm our earlier decision not to include dentists in this award. We have also rejected the LHMU’s submissions that a more comprehensive cleaning structure be inserted. We consider that its proposal is more appropriate to establishments employing large numbers of cleaners or contract cleaning companies.
[105] In our statement of 17 November 2009,27 we set out, for comment, draft model provisions for insertion into each modern award, where relevant, in relation to employees of labour hire (on-hire) companies and employees of group training organisations. In each case variations of the model clause were published and an indication given as to which model clauses would be inserted into each modern award (including the Stage 4 awards then in exposure draft form). We also noted that some modern awards already contain relevant provisions with respect to on-hire employees and may not require a model clause. This decision should be read in conjunction with our statement of 17 November 2009. We now deal with a number of issues which have arisen from the comments we have received. We indicate at this point that the final version of the model provisions is Attachment B to this decision.
[106] Dealing first with the terms of the draft model provisions, AiGroup and Recruitment and Consulting Services Association (RCSA) and others submitted that it was necessary to include the words “This sub-clause operates subject to the exclusions from coverage in this award” in each of the model provisions, in respect of both on-hire and group training employers, to ensure that the coverage of the award in respect to such employers, and their employees, does not extend beyond the general coverage of an award. We agree and have amended the model clauses accordingly.
[107] AiGroup and RCSA suggested two further changes to the 17 November 2009 model provisions in relation to group training organisations:
● the use of the term “temporary employment” is inappropriate and will lead to confusion, uncertainty and potentially negative consequences for employers and employees and should be deleted;
● the model clauses appear to permit references to apprentices and trainees to be deleted from the model clause/s inserted into a particular award in appropriate circumstances. The “and/” in respect of the deletion of “apprentices and/or trainees if not relevant to the award” should be removed.
[108] We agree with both propositions. The model clause is intended to operate with respect to group training organisations and if the additional words have the potential to suggest otherwise, they should be removed. In relation to the second matter, it was not intended that the model provisions be inserted into a modern award without reference to either apprentices or trainees. There are, however, some awards to which the model clause is not relevant and the model group training clause will not be inserted at all in those awards.
[109] The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU), supported by The National Electrical Contractors Association (NECA) submitted that the definition of on-hire in the draft model labour hire provisions should be amended. The definition in the draft reads:
“on-hire means the on-hire of employees by their employer to a client, where such employees work under the general guidance and instruction of the client or a representative of the client.”
[110] The CEPU, supported by NECA proposed that the words “general guidance and instruction” be replaced with “direction and control”. All other submissions supported the definition of “on-hire” in the draft model provisions. We will retain that definition. It appropriately distinguishes between an employee of a contractor and a labour hire employee. It distinguishes, for example, in the context of the Electrical, Electronic and Communications Contracting Award 2010,28 (Electrical Modern Award) between the situation of an employee of a contractor providing labour as part of a contract to provide electrical services and an employee of a labour hire firm supplied to a client to undertake work under the general direction of the client.
[111] Turning to the application of the model provisions to modern awards, in our statement of 17 November 2009,29 we noted that some modern awards and one exposure draft already contain relevant provisions in relation to labour hire employees, and that we would not change those provisions unless requested to do so. Those awards are the Aluminium Industry Award 2010; the Black Coal Mining Industry Award 2010; the Contract Call Centres Award 2010; the Electrical Power Industry Award 2010; Hydrocarbons Industry (Upstream) Award 2010 the Mining Industry Award 2010, Salt Industry Award 2010 and the Telecommunications Services Award 2010. We were not requested to change relevant provisions in any of those awards. Indeed submissions made after the publication of our statement of 17 November 2009 by parties with an interest in many of those awards urged us not to make any variation to the award concerned. We will not vary any of those awards in respect of their provisions concerning labour hire employees.
[112] The UFUA submitted that neither the model provision for labour hire nor for group training is required in the Fire Fighting Industry Award 2010. It submitted that labour hire employees are not utilised in the fire industry and the award does not provide for group training. Given the award is limited in its coverage to operational employees and there is no suggestion that either apprentices or trainees or labour hire employees are utilised in the industry, we will not include either model provision in the award. If circumstances change and a need for either provision arises, application may be made to vary the award.
[113] The AiGroup and RCSA (supported by the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU)) sought modification to the model provision for two awards with both occupational and industry coverage:
● where the occupational coverage was restricted to particular occupations identified in the coverage clause, in respect of the Manufacturing Modern Award; and
● to reflect a restriction of “principally engaged” consistent with sub-cl.4.2 of the coverage clause of the Professional Employees Award.
[114] In a related submission, the Construction, Forestry, Mining and Energy Union (CFMEU) sought that the reference to “classifications” in the occupational element of the model clause be amended to “occupations” in awards with both an industry and occupational coverage, particularly in the Manufacturing Modern Award and the Joinery and Building Trades Award 201030 (Joinery Modern Award).
[115] We think there is some point to the CFMEU’s submission. The two awards referred to identify particular occupations covered by the award on an occupational basis, subject in each case to the requirement that the employee be in a classification contained in the award. We think some minor amendment should be made to the model clause in each case to add reference to the occupations covered by classifications in the award. The provision supported by the AiGroup, RCSA and AMWU, on the other hand, seems to have the same effect as the model clause, save that it identifies with particularity the sub-clause references to be inserted into the model clause. We are not persuaded that any further amendment is required. The labour hire clauses to be inserted into the Manufacturing Modern Award and the Joinery Modern Award are set out in Attachment C to this decision.
[116] We are not persuaded that the special labour hire provision proposed by the AiGroup and the RCSA in respect of the Professional Employees Award is required. The provision proposed by the AiGroup and the RCSA seems to draw upon the coverage in cl.4.2 of the award by expressly repeating the terms of cl.4.2, rather than doing so by reference to the clause. Whilst we understand the intent of the provision sought is to reflect the qualification of “principally engaged” within sub-cl.4.2 of the coverage clause of the award, we think that the model provision will achieve this intention by reference to sub-cl.4.2 in respect of the industry coverage and sub-cl.4.1 in respect of the occupational coverage.
[117] The CPSU, the Community and Public Sector Union (CPSU) submitted that the model provisions in respect of both on-hire and group training should be amended in respect of the Airport Employees Award 201031 to refer to employers “that operate airports within the coverage of this award”. Given the award currently applies to “employers throughout Australia that operate airports and their employees” the amendment proposed is unnecessary.
[118] The Coal Terminals Group put a similar position in respect of the Coal Export Terminals Award 201032 seeking to amend the model provisions to refer to an employer “who operates a coal terminal”. This is unnecessary given the terms of the current coverage clause of the award.
[119] In a joint submission the RCSA and Recruitmentsuper sought to amend the superannuation clause in all modern awards into which the model group training provisions are inserted. The effect of the proposed amendment is to authorise a new group training organisation covered by the relevant award to make contributions to any superannuation fund (which may include RecruitmentSuper), provided the superannuation fund is an eligible choice fund in circumstances, where an employee has not exercised a choice of fund. We see no basis to treat a new group training organisation differently, with respect to superannuation, from any other new employer covered by the relevant award.
[120] The AiGroup and the RCSA submitted that the model group training provision is required in the Business Equipment Industry Award 201033 in respect of apprentices as well as trainees because they exist in the industry. We will apply the group training model provision to this award in respect of apprentices and trainees. They also submitted that the model group training provision is required in the Airline Operations – Ground Staff Award 201034 and the Textile, Clothing, Footwear and Associated Industries Award 2010,35 given that traineeships relevant to each award appear in the National Training Wage Schedule. We will apply the group training model provision to this award in respect of apprentices and trainees in both cases.
[121] The CEPU also sought that the model group training clause proposed for the Electrical Modern Award be replaced with an alternate clause adding to the coverage of the award “the placement on a group training, or similar basis, of apprentices undertaking an apprenticeship described in cl.12.2(c) and who undertakes activities set out in cll.4.5(a) and 4.5(b)” (Clause 12.2(c) refers to an apprentice indentured in electrical, instrumentation, electronic/communications, refrigeration air-conditioning or power lines work and cable jointing trades. Clauses 4.5(a) and 4.5(b) define “electrical services”.)
[122] The group training provision sought by the CEPU would extend the application of the Electrical Modern Award to group training organisations and their employees in respect to placement in employment beyond the general coverage of the award to placement with employers who are not electrical, electronics and communications contractors. This outcome is inconsistent with the general view, noted in our statement of 17 November 2009, that group training organisations, which employ apprentices and trainees and place them with host employers, and the employees, should be covered by the award covering the host employer. We will insert the model group training provision in the Electrical Modern Award.
[123] The CEPU, supported by the NECA, also sought that the Electrical Modern Award be varied to include a form of labour hire provision different from that in the model clause. On 6 November 2009, it made application to vary the award to that effect, seeking an additional coverage provision stating:
“4.5(c) for the avoidance of doubt, the supply of labour to a business on an on-hire basis in respect of on-hire employees in classifications covered by this award where such employees are engaged in the activities described in clauses 4.5(a) and 4.5(b). This subclause (cl4.5(c)) operates subject to the exclusions from coverage in this award.”
[124] The application was loaded onto the Stage 4 labour hire section of the award modernisation website on 9 November 2009. We have decided to deal with the application as part of our Stage 4 labour hire deliberations.
[125] We are not persuaded to vary the Electrical Modern Award in the manner sought by the CEPU. As we have already indicated, the award will be varied to reflect the model labour hire provision. Whilst the Electrical Modern Award covers employers who provide electrical services on a contract basis, which includes the provision of relevantly qualified employees, it does not cover labour hire employers who provide relevantly qualified employees to host employers to undertake work at the direction of host employer. The clause proposed by the CEPU does not distinguish between an employee of a contractor who supplies labour as part of a contract to provide electrical services and a labour hire employee supplied to a client to undertake work under the general direction of the client. The CEPU proposal would extend the application of the Electrical Modern Award beyond the provision of labour as part of a contract to provide electrical services. It would be inconsistent with the general view, which we accept, that labour hire or on-hire employers and their employees should be covered by the award covering the host employer to whom the employees are on-hired and that most modern awards should have a provision in the coverage clause to that effect.
[126] The orders to give effect to this decision in relation to labour hire and group training organisations will be issued in due course. The application of the labour hire/on-hire model provisions to modern awards is contained in Attachment D. The application of the group training model provisions to modern awards is contained in Attachment E.
Legal Services Award 2010
[127] Since the exposure draft was published there have been significant submissions on four main issues. The issues are:
● the extent of the coverage of the proposed award: in this connection submissions were made on the need or otherwise to cover solicitors admitted to practice as well as law graduates who are undertaking a period of training;
● the classification structure and rates;
● an exemption rate for clerical and administrative employees together with a more flexible hours regime for law graduates if they are to be included; and
● hours of work.
[128] There were other ancillary matters to which we have also given our attention. Turning to the first matter, we have decided to include law graduates but not solicitors admitted to practice. Consistent with our earlier views we have not found that there is widespread coverage of solicitors but there is of law graduates. Those seeking coverage appear to be concerned about wage rates and hours of work. Wage rates will be influenced by our decision in relation to coverage of law graduates and the NES deals with maximum weekly hours of work and provides for additional hours provided they are reasonable.
[129] As to the classification structure, we have simplified the structure in the exposure draft and removed the previously proposed highest rate. However we have retained the position of law clerk as we see that it may have some work to do in the manner described in the classification definitions. The extent of its use will be determined by how the employer seeks to manage the work. We have not made any other changes in the classification structure or minimum wages.
[130] Some submissions sought greater flexibility in working patterns for clerical and administrative employees and law graduates. Submissions were put that there should be an exemption rate for clerical and administrative employees and that the approach adopted in relation to ordinary hours of work in the Professional Employees Award should be adopted in this award. Following our decision to vary the Clerks Modern Award we have decided to insert an annualised salaries clause for both clerical and administrative employees and law graduates.
[131] Finally, we turn to hours of work. We have again examined the various relevant awards and have decided to retain the terms of the exposure draft.
Local government administration
Local Government Industry Award 2010
[132] We have proceeded on the basis that the legislative scheme and Constitutional considerations mean that the coverage of the Local Government Industry Award 2010 (Local Government Award) be limited to the following:
● local government in the Northern Territory;
● local government entities that are constitutional (trading) corporations; and
● constitutional (trading) corporations that are controlled by one or more local government entities.
[133] We note that local government entities are “national system employers” in the Northern Territory through the Fair Work Act’s reliance on the Territories power in s.122 of the Constitution36 and, moreover, that the relevant pre-reform awards covering local government in the Northern Territory are not enterprise awards. Employers in the other two categories are “national system employers” by virtue of their status as constitutional corporations.
We have previously expressed the view, by reference to the decision of Spender J in Australian Workers’ Union of Employees, Queensland and Others v Etheridge Shire Council and Another37 (Etheridge Shire Council), that a “typical” local council is unlikely to be a constitutional corporation such that only a limited number of local government entities will fall into the second of the three categories identified above. We received submissions suggesting that the council the subject of Spender J’s decision was not a ‘typical’ local council. That may be so, however, our view was based on the proposition that if the reasoning in Etheridge Shire Council is correct then such reasoning will mean that a “typical” local council is not a constitutional corporation. It is possible that some of the uncertainty may be removed by legislative means or further judicial decisions.
[134] We note further that where a State refers power to the Australian Government for the purpose of participating in the national system, the referring State can choose not to refer power in relation to local government. More importantly for present purposes, if power in relation to local government is referred, it would seem that local government entities in the State concerned that are not constitutional corporations will, to the extent that they are already covered by a federal award, be covered by the State reference public sector transitional award modernisation process in Schedule 6A of the Transitional Act rather than the current process under Part 10A of the WR Act. This would seem to be so in relation to local government entities in Victoria.
[135] On the other hand, the major parties appear to accept that, over time, the practical effect of the making of a modern award for local government will be that the terms of that modern award will come to determine the award safety net in a growing proportion of the local government industry as we have defined it.
[136] A number of submissions were received in relation to the coverage clause, cl.4.2 and, in particular, in relation to the inclusions of corporations “owned or controlled” by one or more local government entities. We have come to the view that ownership is an unnecessary criterion because, in a practical sense, it adds nothing useful to the criterion of control. We have adjusted cl.4.2 to extend the coverage of the modern award to corporations that are “controlled” by one or more local government entities. The Local Government Associations (LGAs) proposed an amendment that would have defined ‘control’ by reference to s.50AA of the Corporations Act 2001. Not all of the criteria in s.50AA are necessary or appropriate to the notion of control in the context of the coverage clause in this modern award. Therefore we have included a definition of control that adopts the key criterion in s.50AA.
[137] We understand that as a consequence of the approach we have taken to cl.4.2 the Tasmanian water authorities will not be covered by the Local Government Award but rather will be covered by the Water Industry Award 2010. It was submitted on their behalf that each of those water authorities is owned by a number of local government entities but, by virtue of peculiar arrangements, not controlled by those local government entities in the relevant sense.
[138] The LGAs and the ASU reached agreement in relation to a substantial number of changes to the exposure draft and we have generally adopted those agreed changes. We have not included an agreed clause in relation to abandonment of employment because we are inclined to think that there is no power to include a clause on that matter and modern awards generally do not deal with that issue.
[139] In a late submission, the ASU expressed support for coverage of “local government fitness industry contractors” under the proposed Fitness Industry Award 2010 and suggested that an appropriate exclusion be included in the list of exclusions in cl.4.3 of this award. There was insufficient material or argument in relation to that proposal and we are not inclined to accede to it at this stage. Moreover, we note that contractors that are not controlled by one or more local government entities will not be covered by the Local Government Award in any event: a contractor will not be covered by this award merely because it is performing work under a contract with a local government entity.
[140] In relation to classifications, several parties, including the ASU, made submissions seeking the inclusion of service increments within particular classification bands. There is a tension between increments based exclusively on length of service and the concept of a modern award safety net and, generally speaking, such increments are not appropriate for inclusion in a modern award that must be a safety net. We are not persuaded that we should alter the classification structure in the exposure draft by the addition of service increments or by the addition of increments that are in substance new and additional classifications. We have changed the classification titles from “Bands” to “Levels”.
[141] We again note that the classification definitions and wage rates included in the exposure draft were agreed by the LGAs and the ASU. The ASU subsequently made submissions to the effect that the classification descriptions introduced managerial and supervisory responsibilities at too low a level and were excessive at subsequent levels. The ASU and APESMA also submitted that the classification descriptions in so far as they applied to professional employees introduced managerial functions at too low a level and otherwise needed adjustment to bring them into line with the responsibilities and rates in the Professional Employees Award. We have decided not to vary the classification definitions in the lower bands as sought by the ASU. We have, however, introduced a leading hand allowance that is applicable to employees in Levels 3, 4 and 5. We note that Level 4 is the entry level rate for a tradesperson and that tradespersons entering at this level should receive the C10 rate (the minimum rate for Level 4) in the absence of any supervisory responsibility. If such employees are given supervisory responsibilities it is appropriate that they receive a leading hand allowance. We think it appropriate that such an allowance also apply to Level 3 employees and also to Level 5 employees (who “may” lead large groups of employees at the ‘work face’). Above Level 5, supervisory functions are comprehended by the minimum wages for those classifications.
[142] In relation to allowances, the main area of contention concerned the adverse working conditions allowance and, in particular, the rates and eligibility criteria for the three levels of that allowance. (We note that the rate in the exposure draft for Level 3 working conditions was an error.) The LGAs support a rate of 50% for Level 3 working conditions and the ASU seeks a rate of 100%. The rate for Level 3 is much greater than the rates for Level 1 and Level 2 working conditions because the working conditions covered by Level 3 are extremely obnoxious and involve working in sewerage. We agree with the ASU submission that most of the main awards and NAPSAs contain an allowance at a rate of 100% for working in such conditions. We have adopted that rate. We were also persuaded by the ASU submissions that the rates for Level 1 and Level 2 working conditions were too low. Rather than introduce an additional industry allowance as proposed by the ASU, we have increased the rates for Level 1 and Level 2 adverse working conditions to a level that we regard as appropriate.
[143] Hours of work and rostering is the area that caused us greatest difficulty. The exposure draft contained a set of provisions based on a draft award proposed by the LGAs. Those provisions are unusual in a number of respects. We note in particular a continuing reservation about the extent of the areas in which ordinary hours can be worked Monday to Sunday. The ASU sought the replacement of that entire section with a more conventional set of clauses. Not without some hesitation, we have decided to retain the approach in the exposure draft. The industry of local government, as we have defined it, covers a vast array of activities. It is apparent that the LGAs worked hard to craft a set of clauses that would provide the flexibility reasonably required in an area such as local government. There is no suggestion that the LGAs’ intent was to prejudice employees. On the contrary, it is apparent that the LGAs have made a genuine attempt to propose a reasonable solution to a very difficult problem. Generally speaking, the ASU has not detailed how particular groups or classes of employees will be prejudiced by the approach in the exposure draft. On the other hand, we have very little information on how the clauses proposed by the ASU would impact on employees in different parts of Australia. The great variation in terms and conditions in the relevant awards and NAPSAs makes that assessment exceptionally difficult without the assistance of industry parties. Nothing we have said should be taken as a criticism of the ASU. We appreciate that the ASU, like other parties with an interest in a number of industries in the current process, has had its resources stretched in endeavouring to make extensive submissions in those industries. This aspect of the modern award can be revisited at a suitable time, perhaps in the context of an application to vary the award. The position of employees is largely protected for the time being by the standard transitional provisions.
[144] In relation to personal/carer’s leave and community service leave we have not accepted some of the agreed changes to those clauses. For reasons that we have explained elsewhere we now do not regard it as appropriate to supplement personal/carer’s leave or to provide for entitlements in relation to jury service that exceed those in the NES unless there are special circumstances.
Mannequins and modelling industry
Mannequins and Models Award 2010
[145] Since the publication of the exposure draft the only submissions received have been from the LHMU. It drew our attention to a number of alterations which did not change the meaning of the proposed award but better expressed the terms. However there was one proposed change which we have not adopted. In two areas it was proposed that the word “casual” be deleted without any corresponding submission as to the impact of the proposed change on minimum wages rates. We are not inclined to take this step without a full examination of its impact in relation to the minimum wages contained in the award.
Miscellaneous Award 2010
[146] The principal issue in relation to the Miscellaneous Award 2010 (Miscellaneous Award) is its coverage. The relevant paragraph of the consolidated request reads:
“4A. The Commission is to create a modern award to cover employees who are not covered by another modern award and who perform work of a similar nature to that which has historically been regulated by awards (including State awards). The Commission is to identify this award as such. This modern award is not to cover those classes of employees, such as managerial employees, who, because of the nature or seniority of their role, have not traditionally been covered by awards. The modern award may deal with the full range of matters able to be dealt with by any modern award however the Commission must ensure that the award deals with minimum wages and meal breaks and any necessary ancillary or incidental provisions about NES entitlements.”
[147] Paragraph 2 of the consolidated request contains a number of principles or guidelines which are relevant. We note in particular paragraph 2(a):
“2. The creation of modern awards is not intended to:
(a) extend award coverage to those classes of employees, such as managerial employees, who, because of the nature or seniority of their role, have traditionally been award free. This does not preclude the extension of modern award coverage to new industries or new occupations where the work performed by employees in those industries or occupations is of a similar nature to work that has historically been regulated by awards (including State awards) in Australia;
… ….”
[148] Several parties also drew our attention to s.143(7) of the Fair Work Act:
Employees not traditionally covered by awards etc.
… …
(7) A modern award must not be expressed to cover classes of employees:
(a) who, because of the nature or seniority of their role, have traditionally not been covered by awards (whether made under laws of the Commonwealth or the States); or
(b) who perform work that is not of a similar nature to work that has traditionally been regulated by such awards.”
[149] Although s.143(7) does not come into operation until 1 January 2010 it is clearly relevant to the coverage of modern awards generally and the coverage of the Miscellaneous Award in particular. Common to all of the provisions we have set out is the requirement that awards should not cover employees who because of the nature or seniority of their roles have traditionally not been covered by awards. Many different approaches and drafting techniques were proposed to encapsulate that requirement. We note also the implication in paragraph 4A of the consolidated request that an award should be created to cover employees not covered by another modern award and who perform work of a similar nature to that which has historically been regulated by awards.
[150] A number of submissions canvassed the purpose or function of the award. The ACTU, for example, submitted that the functions of the award should be twofold. The first is to fill gaps in modern award coverage which became apparent during the process of setting aside award-based transitional instruments as required by the Transitional Act.38 The second function is to provide interim coverage for emerging industries pending the making of a new modern industry award or an appropriate extension to the coverage of an existing modern award. The Australian Government took a very similar approach, while stressing the importance to the economy of ensuring that employees who have not traditionally been covered by awards remain free from modern award coverage as well. In an earlier stage in the consultations ACCI proposed that the coverage of the award should not be settled until after an audit of modern award coverage to ascertain what if any gaps there are by comparison with the existing pattern of federal and state award coverage. AiGroup and ACCI both suggested that the award be limited to employees covered by a federal or state award or a Notional Agreement Preserving a State Award (NAPSA). AiGroup proposed in addition that industries and employers could be specified in a list attached to the award to permit new industries and employers to be added as necessary.
[151] Almost without exception employer representatives criticised the breadth of coverage in the exposure draft. They suggested that employees who have traditionally been excluded from award coverage, particularly professional and managerial employees, would be covered, including those deliberately excluded from modern award coverage in earlier stages of the modernisation process.
[152] We have considered all of the submissions and decided to include an additional paragraph in the coverage clause which more closely reflects the terms of the consolidated request and the Fair Work Act. The paragraph also contains some greater definition of the types of employees excluded. It reads:
“4.2 The award does not cover those classes of employees who, because of the nature or seniority of their role, have not traditionally been covered by awards including managerial employees and professional employees such as accountants and finance, marketing, legal, human resources, public relations and information technology specialists.”
[153] We deal now with conditions of employment. Our approach to conditions of employment is influenced by the nature of the award’s coverage. We agree with those who have suggested that the coverage of the award is very narrow and likely to be limited in time where emerging industries are concerned or where the expansion of coverage of a modern award is involved. Accordingly we do not think the award should contain a comprehensive safety net designed for any particular occupation or industry. Rather it should contain basic conditions only, leaving room for the application of an appropriate safety net in another modern award in due course. That said, there is still room for the exercise of considerable discretion in formulating appropriate wages and conditions.
[154] We have decided not to make any alteration in the part-time provisions or casual loadings, despite suggestions from employers we should do so. The part-time provision permits alteration in agreed hours by consent or by the employer on notice while maintaining the essential characteristics of part-time employment. We do not think it is appropriate to exempt casual employees from weekend and other penalties applicable to full-time employees.
[155] We have made some alterations to the classification structure. Consistent with the intent of alterations in the coverage clause we have deleted the graduate level and replaced it with an advanced trades/sub-professional classification at a lower minimum wage level. We have decided not to delete the leading hand allowance. It is appropriate that leading hands, who have traditionally been covered by awards, should receive an appropriate allowance. We have included a new reimbursement allowance. The model superannuation provision has been cut down significantly in recognition of the nature of the award.
[156] There were suggestions by representatives of employees and employers that we should alter the hours of work provisions in the exposure draft in a variety of ways. In the end we have decided not to make any change. The hours of work in the exposure draft properly balance the need for some basic protections for employees with a great deal of flexibility for employers.
[157] In relation to the annual leave loading, we have decided to include provision for an employee to receive the pay they would have received for the period of leave if that amount is greater than the loading. We have not accepted various other proposals in relation to annual leave.
[158] The Australian Government submitted that the award should include the model part-time apprentice clause resulting from the Full Bench decision in 2000.39 We have examined the model clause. Its substantive provisions do not significantly alter the part-time provisions in the award or the model school-based apprentices provisions in Schedule D to the award. Since any other matter dealt with in the clause will be regulated by the relevant training contract, we do not think it is necessary to include the model part-time apprentice clause. Should some unforeseen issues arise the matter can be revisited by application.
Seagoing Industry Award 2010
[159] An award for the seagoing industry was originally a matter to be dealt with in Stage 3 of the award modernisation process. In June 2009, the Minister advised that new regulations were to be made extending the application of the Fair Work Act to ships which had been granted a permit under the Navigation Act 1912. Those regulations were made in August 2009. On 17 August 2009 the Minister varied the consolidated request to include the following:
“Maritime Industry
47. When creating a modern award covering the maritime industry, the Commission should ensure that the modern award covers employers on licensed, permit or majority Australian crewed shops (as defined in item 1 of Schedule 2 to the Fair Work Amendment Regulations 2009 (No.1)) and their employees.
48. The Commission should give consideration to the circumstances and needs of the employers and employees in the areas described in these regulations.
49. As well as giving consideration to the modern awards objective in s576A of Part 10A of the Workplace Relations Act 1996, the other terms of this award modernisation request and the NES, the Commission should consider whether it is appropriate to establish award provisions for employers of the crews of permit ships and their employees relating to accrued entitlements and associated arrangements. In considering this matter, the Commission should have regard to the needs of those employers and employees who may be in Australia for relatively short period or who are regularly moving in and out of the Australian jurisdiction.”
[160] In light of these developments the Commission considered it appropriate to provide interested parties with an opportunity for further consultation and that the modern award for the seagoing industry would be considered in Stage 4 of the award modernisation process, rather than in Stage 3 as originally planned. We were subsequently informed that on 26 October 2009 the Minister indicated that relevant amendments were to be made to the Fair Work Regulations 2009. Those regulations, we were told, would deal with the circumstances in which a vessel which has been granted a permit, whether a single voyage or continuing one, would come within the scope of the Fair Work Act.
[161] With our statement of 25 September 2009 we published an exposure draft of a seagoing award. We addressed the issue of award coverage of permit ships and made a provisional decision to deal with such ships in Part B of the modern award. Our decision included the following:
“[155] Conscious of the variation to the consolidated request we have decided to divide the award into Part A and Part B. We have tentatively described Part A as applying to non-permit vessels, which are essentially the respondents to the existing award. Part B will apply to permit vessels.
[156] The specific provisions applicable to Part B vessels will also require substantial consideration. While we will be better informed by the further submissions of interested parties, including in the public consultations in October 2009, our preliminary view is that Part B conditions will need to pay due regard to conditions applying internationally, including what has been referred to as the ITF agreement. We also note that cll.28 to 35 of the consolidated request govern the manner in which modern award provisions can interact with the NES. Proposals which relate to the effect of the NES on crew covered by Part B of the modern award will need to be framed with those provisions in mind.”
[162] The lack of certainty as to the applicable legislation has resulted in some difficulties for the parties in putting submissions to us. Indeed, some parties pressed us not make any award until the intention of the Parliament is clear.
[163] Several employer groups have submitted that conditions of employment for some or all permit ships should reflect those found in what are termed ITF (International Transport Federation) agreements. We understand that there is no single ITF agreement. There is a range of different standard instruments, which are adopted or modified in agreements applying to a particular enterprise. It was said that there are currently 6500 agreements based on ITF instruments. Not surprisingly, given the fluidity of the legislative environment in which they found themselves, no party provided a specific set of conditions that could apply as Part B.
[164] We have also noted that the unions oppose any differentiation of provision between vessels. Their position is said to be strengthened by the proposed regulations which, if made, will point to the Parliaments’ intention that certain types of permit vessels should have the same conditions applied to them as apply to licensed and majority Australian-crewed ships.
[165] We have decided, for now, to maintain two parts to the award. Part A will apply to all ships other than those operating under a permit and remains unchanged from the exposure draft. Part B will apply to ships operating under the permit system. In all of the circumstances we are not able to make an award that would establish a final set of appropriate conditions for foreign ships operating under the permit system. Notwithstanding the limitations in the material before us we have decided to include some basic conditions in Part B which we consider are consistent with some accepted standards in ITF agreements and which are capable of ready application to permit ships.
[166] In respect of minimum wages we have set them out as weekly rates and utilised the broad methodology which was used in the award simplification process. We regard the integrated rating as the key classification and we have then maintained established relativities.
[167] We are conscious that the provisions in Part B have been formulated while the legislative arrangements in relation to permit vessels have not been finalised and, as described earlier, for various reasons there has not been comprehensive consultation or debate on critical issues. For these reasons we have decided that while the modern award will commence on 1 January 2010, Part B will not come into operation until 1 January 2011.
[168] An additional reason for caution is that permit ships have hitherto never been subject to Australian industrial regulation.
[169] Finally, we observe that Fair Work Australia will have the power to vary the award to achieve the modern awards objective. The delayed operative date in relation to permit vessels will provide an opportunity for interested parties to better inform Fair Work Australia in this regard. In relation to Part A of the modern award, it must be said that the circumstances attending the making of the award have not been ideal and it is likely that in due course the terms of Part A will also require review.
Real Estate Industry Award 2010
[170] In the statement which accompanied the exposure draft of this industry award we indicated that our provisional view was that the coverage of the award should not extend to clerks and that those employees should be covered by the Clerks Modern Award. We referred to the current award regulation around Australia of clerks employed in this industry and noted that it was only in New South Wales and Tasmania where there was any real estate specific awards covering clerks. We now confirm our provisional view there being no submissions made which persuade us that clerical classifications should be contained in this award. The issue which was addressed in some detail in submissions, particularly those made by organisations representing New South Wales employers, concerned whether there should be any special provision for them in the Clerks Modern Award. The ASU opposes any special accommodation being provided and submits the model transitional provisions in the Clerks Modern Award are adequate.
[171] We have considered the lesser penalties payable in the two relevant NAPSAs covering clerks in real estate offices and the comparable rates in the Clerks Modern Award. We have also considered the flexibility provisions in the latter award which would be capable of accommodating the need for weekend work to be performed. We have not been persuaded to make any of the variations to the Clerks Modern Award sought by the employers. In our opinion the model transitional provisions and the flexibilities that are contained in that award provide the minimum safety net entitlements of these employees. It would not be fair to allow further reductions in those entitlements on either a permanent or a transitional basis.
[172] We have decided that strata and community title management (however that activity is described around Australia) should be covered by this award and those activities are contained in the definition of “real estate industry”. As a consequence we have amended the provisions of cl.14 and Schedule B to provide for strata/community title employees.
[173] In our statement of 25 September 2009 we raised concerns about the wage rate for property sales associates.40 The rates for that classification now have 2 levels. They are referable to the first six months of employment in the classification and thereafter.
[174] We now turn to cl.16.2 which deals with commission only employment. The employers want casual employees to be able to be paid on a commission only basis. Casual employees were excluded from the relevant Australian Fair Pay Commission pay scale and nothing that was submitted persuades us to include them in this method of remuneration. This is a matter which may be revisited in any forthcoming review of this award.
[175] We have adopted the parties agreed definition of full rate of pay and it is now contained in cl.17.5(d). We turn to the model transitional provisions. As the exposure draft reflected numerous transitional provisions in the body of the award which the parties had agreed we asked if they also wanted the model phasing provisions. We were advised that they do; they are now in Schedule A to the award.
[176] We received a late submission from Real Estate Employers Federation of South Australia asking us to again consider the inclusion of an annualised salary provision in this award. Reliance was placed on the recent decision in respect of the Clerks Modern Award and the annualised salary provision that is to be inserted into that award. The provisions of existing awards in that occupational calling and the specific paragraph of the consolidated request there considered are not applicable to this industry award. We do not propose to revisit this matter at this stage. In the statement which accompanied the exposure draft of this award we observed that this award contained few, if any, overtime and penalty provisions that are commonly compensated for by an annualised salary. This matter can be considered again at the two yearly review of this award when submissions and evidence about the need for such a clause may be addressed.41
Restaurant and Catering industry
Restaurant Industry Award 2010
[177] For the purposes of this section of our decision, we have referred to existing instruments in the abbreviated form recorded in our statement of 25 September 2009.42
[178] The submissions put following the publication of the exposure draft to a significant degree reflected positions advanced in the pre-exposure draft consultations, which we considered in formulating the exposure draft and addressed in our statement of 25 September 2009. We have closely considered the further submissions put to us since the publication of the exposure draft but have not been persuaded to depart from the position reflected in the exposure draft and the reasons given in our statement, except as indicated below.
[179] A major issue which arose in the post-exposure draft consultations concerned the coverage of the catering industry. Restaurant and Catering Australia (RCA) and AFEI argued that the catering industry generally should form part of the restaurant award, rather then the Hospitality Industry (General) Award 201043 (Hospitality Award), although the AFEI submission was directed to function caterers. We are not persuaded to alter the scope of the two awards, in respect of the catering industry, for the reasons given in our statement of 25 September 2009.44 We remain of the view that the coverage in the exposure draft gives proper effect to the 28 May 2009 variation to the consolidated request.
[180] Several narrow coverage issues arose in respect of the definition of restaurants in cl.2 of the exposure draft:
1. Business SA sought the deletion of “licensed” before both “café” and “roadhouses.” The terms “licensed café” and “licensed roadhouses” appear to have been imported from the SA Restaurant Award. No distinction based on licensing seems to appear in any other current instrument. Both the Queensland non-SEQ Restaurant Award and Tasmanian Restaurant Award refer to drink and/or food. The NSW Restaurant Award and the WA Restaurant Award contain no reference at all to liquor in their application clauses. The SEQ Restaurant Award explicitly covers licensed or unlicensed establishments. The Victorian Restaurant Award sheds no light on the issue. We will delete “licensed” before both “café” and “roadhouses”.
2. Business SA sought the deletion of “tea shop” and “fish or oyster shop” which they say should fall under General Retail Industry Award 2010 and “tent, vehicle etc selling sandwiches, hotdogs, meals” which they say should be covered by the Fast Food Industry Award 2010, the General Retail Industry Award 2010 or “mobile food vending” in the Road Transport and Distribution Award 2010.45 In our view, a shop selling uncooked fish would fall within the retail industry and the sale of cooked fish consumed other than at a restaurant, or food sold from a vehicle of a take-away nature would fall within the fast food industry. We will remove “fish or oyster shop” and “food sold from a vehicle” from the definition of restaurant. A tea shop retailing tea would also fall within the retail industry. We have amended the terminology in the restaurant definition to refer to a tea room.
3. The AHA argued that a “liquor booth” properly falls within the Hospitality Award, having no association with food or restaurants. We agree. We have deleted ‘liquor booth’ from the definition of restaurant.
4. Business SA and AHA argued that nightclubs were more appropriately covered by the Hospitality Award and should be removed from the definition of restaurants. Nightclubs fall within the scope clause of the Victorian Restaurant Award. They fall within the NSW Restaurant Award if they serve food. They fall within the description of “commercial dance halls, discotheques and cabarets, entertainment lounges, and/or other places of entertainment” in the Queensland non-SEQ Restaurant Award and the description of “providing live or recorded entertainment at licensed or unlicensed venues” in the SEQ Restaurant Award. The situation in the other States is less clear. In our view, the coverage of nightclubs by the Restaurant Industry Award is consistent with current instrument coverage.
5. The AHA also raised the issue of bars, submitting that bars are more appropriately covered by the Hospitality Award. The term “bar” does not appear in the definition of restaurant in either the exposure draft or the Hospitality Award. That will be the case in the Restaurant Industry Award, with bars operated as part of a restaurant business falling within the coverage of that award and other bars being covered by the Hospitality Award.
[181] The changes in the definition of restaurant will be reflected in the Hospitality Award in which the definition also appears.
[182] The RCA submitted that the part-time provisions in cl.12 of the exposure draft were inflexible and should be amended to allow part-time employees to work additional ordinary hours if they choose. The part-time provisions in cl.12 resulted from modifications made to the part-time provision in the Federal Victorian Restaurants Award. Those modifications make it clear that part-time employees may agree to work additional ordinary hours. The part-time clause modified to that effect provides appropriate flexibility and will remain in the modern restaurant award for the reasons explained in our statement of 25 September 2009.46
[183] The RCA and AFEI proposed that the classification structure in the exposure draft, which was drawn from the Victorian Restaurant Award, should be replaced with the structure in the NSW Restaurant Award. They argued that this structure suits the industry better and that the structure in the exposure draft, coupled with the definition of “appropriate level of training” in cl.3, does not suit the operational requirements of the industry. An element of their submission was based on the rejection of a linkage between classification levels and qualifications on the basis that some qualifications may not be relevant to the work required in a restaurant. We are satisfied that the classification structure in the exposure draft should be maintained. As noted in our statement of 25 September 2009,47 it provides a broader range of classifications relevant to the industry. We have addressed the RCA’s concern about the linkage between classification levels and qualifications by altering the definition of “appropriate level of training” to refer to qualifications relevant to the classification in which an employee is employed, as proposed by the ACTU.
[184] Business SA pointed to an error in relation to the split shift allowance in cl.24.2 of the exposure draft. The allowance is expressed as a percentage of the weekly, rather than hourly rate in the exposure draft. It is an error and the clause has been amended to refer to the hourly standard rate.
[185] The Westscheme Superannuation Fund sought to be added to the list of default funds in cl.30. 4. It has been added.
[186] The RCA sought to amend cl.31.2 to remove the obligation to provide a minimum shift of six hours in the case of part-time employees. Such an amendment is unnecessary. Clause 12.5 provides a minimum engagement for part-time employees of three consecutive hours on any shift. The RCA also sought provision for an average of 38 ordinary hours per week to be worked over six or 12 months. There is no precedent for such a long period of averaging in any relevant instrument, except in relation to seasonal employees, by agreement, under the NSW Restaurant Award. We reject the proposal.
[187] The RCA reargued the position in relation to penalty rates which it had put in the pre-exposure draft consultations. That position is set out in the table at paragraph 229 of our statement of 25 September 2009. The LHMU was more particular in its approach. It sought to amend penalty payments for casual employees working on public holidays, from 150% to 175%, and to have the penalty which applies to work between 10pm and midnight commence at 8pm instead.
[188] The penalty provisions generally and the two particular penalties raised by the LHMU were subject to considerable attention by us in preparing the exposure draft. As noted in our statement of 25 September 200948, these issues raise matters requiring fine judgement to be exercised in the context of a diverse range of provisions in the relevant instruments and the terms of cl.27A of the consolidated request. Nothing was put to us which indicates that we should depart from the penalty provisions in the exposure draft and we are of the view that those provisions, including the particular penalties addressed by the LHMU, should be included in the modern award. We adhere to the reasons contained in our statement of 25 September 2009.
[189] The AWU continued to seek the inclusion in the modern award of provisions derived from the Queensland non-SEQ Restaurant award. Those provisions relate to Saturday penalty rates, penalty payments for working during rest breaks and the minimum period of engagement for casual employees. We have reviewed the relevant provisions and compared them with those in the exposure draft. We are satisfied that the provisions of the exposure draft are appropriate. In the circumstances provisions which are found in only one existing instrument do not provide a sound basis for altering provisions which are to apply nationally.
Salt Industry Award 2010
[190] We have amended cl.4.2(b) in the coverage clause to reflect the wording proposed by the Australian Mines and Metals Association (AMMA) and AiGroup. We have also introduced a new clause, which will be cl.11.3, to provide a job search entitlement where the employer has given notice of termination to an employee. It is in the same terms as cl.11.3 of the Mining Industry Award 2010.49
[191] We have not altered the provisions of cl.14.4 which deal with the rates to be paid to apprentices. The percentages to be paid by reference to the applicable adult weekly rate are similar to those in the Mining Industry Award and the Manufacturing Modern Award.50 The higher percentages in the Dampier Salt Award 200451, an enterprise NAPSA, do not justify an increase in this industry award.
[192] In the statement we published with the exposure drafts we said there may be a case for an industry allowance and asked the parties to have discussions about this. No agreement was reached as to the quantum of such an allowance although it seems it is generally accepted that an industry allowance is appropriate. We have considered the parties’ submissions, the industry allowances in existing awards as well as the various allowances payable for disabilities associated with work in this industry. We have decided that an allowance of 2.5% of the standard rate should be in the award.
[193] We have reconsidered the existing provisions in awards which deal with the payment of overtime. Clause 23.1(a)(i) of the exposure draft provided for overtime at the rate of 50% to be paid for the first three hours worked. The unions submitted it should be for the first two hours. Examples of both thresholds are in existing awards but on balance we think the weight is in favour of two hours and that is now contained in the overtime clause in the award.
[194] There was an omission in cl.23.5 of the exposure draft for the penalty that would be payable to a non permanent night shift worker. The clause now provides for a penalty of 15%.
[195] We next turn to the contentious issue of annualised salaries. We did not put such a clause in the exposure draft but asked the parties to have further discussions about this issue. AMMA continued to press for such a clause and submitted that annualised salaries are wide-spread in this industry and have been since the early to mid 1990s. It addressed the various advantages for employers and employees of this method of remuneration and noted that there is no evidence of any disadvantage to employees despite the many years during which this method of payment has operated. It submitted that annualised salaries are also justified by cl.33AA of the Minister’s consolidated request noting the types of rosters worked by employees in the industry.
[196] We accept the submissions of AMMA and, in this respect, note the unions did not identify any disadvantage to employees but submitted that as the current awards do not have annualised salaries provisions in them neither should this modern award. The patterns of work in this industry are such as to persuade us that a modern award should allow for an employee to be paid by way of an annualised salary.
[197] Such a method of remuneration compliments the requirements of cl.33AA which applies to work performed in remote locations which is the case for work covered by this award. The clause we have put into the award is in the same terms as that which we have recently inserted into the Clerks Modern Award.52 It contains a provision to safeguard against an employee being paid less that they would otherwise be entitled to be paid had they not been on annualised salary.
State and Territory government administration
State Government Agencies Administration Award 2010
[198] On 9 November 2009 we published an exposure draft of a state government agencies administration award derived from a document largely agreed between Workforce Victoria and the CPSU. Since that time submissions have been received from Workforce Victoria, the CPSU, APESMA and the AMWU.
[199] We have decided to make a modern award, for the most part, in the same terms as the exposure draft. A number of matters are uncontroversial. We have not been persuaded to include other proposals which did not form part of the original joint document. However, the main issue raised related to redundancy provisions.
[200] Workforce Victoria argued that the modern award should not include reference to the NES for redundancy pay because of the decision of the High Court of Australia in Re Australian Education Union; Ex parte Victoria53 (Re: AEU). It also submitted that, for the same reasons, the transitional provision relating to redundancy pay should also be excluded. The CPSU rejected the submission of Workforce Victoria and submitted that the capacity of the Australian Government to regulate state agencies through the proposed award can only be determined on a case by case basis, having regard to how central its operation was to the administration functions of the state government concerned.
[201] We agree with the CPSU’s submission. In any proceedings to interpret or enforce the award the decision in Re: AEU would be given full effect. We do not think that on the material before us we are able to formulate a satisfactory test for determining which, if any, corporation would fall within the exemption contemplated by the decision in Re: AEU.
Water, sewerage and drainage services
Water Industry Award 2010
[202] AFEI made a submission that there should be no award for the water industry. We disagree. This industry has a history of award regulation, including in the area of local government which historically was responsible for provision of water, sewerage and drainage services in many areas of Australia.
[203] As with the exposure draft for local government, the exposure draft for the water industry was substantially based on a draft proposed by the LGAs. The LGAs noted that local government is still a significant provider of water, sewerage and drainage services and the LGAs’ interest arose because they could not be sure that the Full Bench would accede to submissions that all activities of local government, including the provision of such services, would be placed within the coverage of a modern award for local government.
[204] We have already addressed one aspect of coverage in this industry in our comments on the Local Government Award. Other comments we made in relation to that modern award are equally applicable to the modern award we have made for this industry, including in relation to classifications and allowances. Those comments need not be repeated here. In relation to classifications, given that this industry has gradually moved away from its local government roots, we have removed Level 11 on the basis that senior executives should not be subject to award regulation in this industry. Given the history of award coverage in this industry, we have not accepted submissions from AFEI and Veolia suggesting other limitations on coverage.
[205] Local Government Water Services (LGWS) sought a minimum shift length of one hour for part-time employees. A good case for this change was made out in relation to local government. We are not so persuaded in relation to this industry. We note that the two multiple-employer pre-reform awards in Victoria have a minimum shift length of three hours. We note that cl.10.4 as it appears in the modern award will permit part-time employees to work additional ordinary hours (to a maximum of 38 hours per week) by agreement.
[206] In relation to cl.19.4(a)(iv), a change suggested by Veolia, is unnecessary because the use of the word “may” confers a discretion on the employer.
[207] In relation to hours of work and rostering, we have accepted an ASU submission for wholesale change of those clauses. The circumstances that justified the retention of the LGAs’ approach in local government, including the extreme diversity of activities and roles, do not exist in the water industry. We have based the new clauses on the draft proposed by the ASU but with some significant changes. The clauses we have included broadly reflect common standards in relation to hours of work and rostering and ought accommodate Veolia’s concerns about the 24 hours a day, seven days a week nature of operations in this industry. In the event that an interested party is concerned that these clauses will substantially disadvantage either employers or employees, that issue can be addressed by way of a variation application.
[208] There is no basis in the relevant awards and NAPSAs for the cashing out of annual leave as suggested by Veolia. We consider changes suggested by LGWS on account of the Public and Bank Holidays Act 1972 (WA) to be unnecessary given the way in which the NES operates.
[209] The exposure draft of the National Training Wage Schedule has been amended to clarify its coverage.
[210] Further, the employment conditions in the schedule have been amended to make it clear that time spent by a trainee, other than a trainee undertaking a school-based traineeship, in attending any training and assessment specified in, or associated with, the training contract is to be regarded as time worked for the purposes of calculating their wages and determining their conditions of employment. The appendix to the schedule which allocates traineeships to wage levels has also been updated. Two of the traineeships are only relevant in Western Australia. State based provisions of the schedule will only apply to 31 December 2014 or further order of Fair Work Australia, whichever is the earlier, due to the operation of statute.
[211] We have retained a default wage rate in the schedule as we are not persuaded the application of the schedule to replacement training packages covers all those whose training package and AQF certificate level have not been allocated to a wage level by the appendix to the schedule. In the absence of a default wage rate the other minimum wages in the award would apply to such trainees. We consider the middle ranking Wage Level B in the schedule should apply as the default wage rate. We have also retained the option of a 25% loading for trainees on a school-based traineeship instead of them being provided certain paid leave having regard to the level of the casual loading and the purpose of it in modern awards.
[212] We have not included the competency based wage progression provisions of the Queensland Industrial Relations Commission Order–Apprentices’ and Trainees’ Wages and Conditions (Excluding Certain Queensland Government Entities) 2003 in the schedule.54 The model transitional provisions will apply.
[213] This decision deals with the Stage 4 modern awards, the final group of awards to be made under Part 10A of the WR Act. The total number of modern awards is 122. Those awards will replace approximately 1560 federal and state awards. The process commenced on 28 March 2008 when the Minister signed a request to the President under s.576C(1) of the WR Act. A Full Bench was constituted in May 2008. The process has been conducted by the Full Bench with assistance from many other members of the Commission. There has been a total of around 120 days of consultations with interested parties including the consultations on the initial priority issues and transitional arrangements, pre-drafting consultations and consultations on the exposure drafts.
[214] We acknowledge the contributions made by scores of people who have participated in the consultations, either in writing or personally, by formulating and advancing proposals, draft awards and submissions. The timetable has placed significant demands on the resources of many, particularly those unions and employer representatives with interests across a number of industries. Overall the level of cooperation and assistance we have received has been of the highest order.
[215] The Commission has been very well supported in relation to the research, technical and administrative aspects of the task by the staff of the Australian Industrial Registry and Fair Work Australia. The award modernisation website has played a critical role and has been the primary means of transferring and publishing information. There are over 800 separate pages on the site, including separate sections for each of the 93 industries and occupations being considered. There are currently approximately 3,500 submissions available and many other documents, including 4,700 comparative schedules of award conditions. We thank all those involved for the skill and effort they have brought to the task, in particular the Modern Awards Team and the members’ associates.
BY THE COMMISSION:
PRESIDENT
2 [2008] AIRCFB1000, [2009] AIRCFB 345 and [2009] AIRCFB 826.
3 [2009] AIRCFB 800 particularly at paras 2 to 5 and [2009] AIRCFB 943.
4 [2009] AIRCFB 800 particularly at paras 9 to 11 and 56 to 61.
6 ibid.
7 MA000010.
8 AP774892.
9 AP819154.
10 AP834773CRC.
11 AP801881CRV.
12 [2009] AIRCFB 865 at para 67.
13 see s.14(a) of the Fair Work Act.
14 (1986) 72 ALR 136.
15 [2008] AIRCFB 550 at paras 155 to 192.
16 Re Victorian Firefighting Industry Employees Interim Award 1993, Print S3127, 1 March 2000.
17 MA000065.
18 See: [2008] AIRCFB 550 at paras193 to 196, [2009] AIRCFB 641 and [2009]AIRCFB 865 at paras 1 to 3.
19 MA000020.
20 [2009] AIRCFB 865 at para 89.
21 Ambulance Services and Patient Transport Employees Award, Victoria 2002, AP817765CRV.
22 [2009] AIRCFB 865 at para 92.
23 MA000080.
24 MA000018.
25 AP796561CRV.
26 MA000027.
28 MA000025.
29 [2009] AIRCFB 925 at para 8.
30 MA000029.
31 MA000049.
32 MA000045.
33 MA000021.
34 MA000048.
35 MA000017.
36 It may be noted that there is no system of local government in the ACT.
37 (2008) 171 FCR 102.
38 See :Schedule 5, item.3 of the Transitional Act.
39 Re Victorian Shops Interim Award 1994, 6 March 2000, Print S3850.
40 [2009] AIRCFB 865 at para 174.
41 [2009] AIRCFB 865 at para 177.
42 [2009] AIRCFB 865 at para 181.
43 MA000009.
44 [2009] AIRCFB 865 at paras 188 to 192.
45 MA000038.
46 [2009] AIRCFB 865 at para 198.
47 [2009] AIRCFB 865at para 209.
48 [2009] AIRCFB 865, at paras 234 to 236.
49 MA000011.
50 MA000010.
51 AN160096.
53 (1995) 184 CLR 188.
54 QGIG, 11 July 2003, Vol.173, No.11, pp.878 to 927.
Attachment A to Full Bench Decision of 4 December 2009
List of Stage 4 Modern Awards
Aboriginal Community Controlled Health Services Award 2010
Ambulance and Patient Transport Industry Award 2010
Animal Care and Veterinary Services Award 2010
Aquaculture Industry Award 2010
Children’s Services Award 2010
Corrections and Detention (Private Sector) Award 2010
Dry Cleaning and Laundry Industry Award 2010
Educational Services (Teachers) Award 2010 – variation only
Fire Fighting Industry Award 2010
Gardening and Landscaping Services Award 2010
Labour Market Assistance Industry Award 2010
Local Government Industry Award 2010
Mannequins and Models Award 2010
Pest Control Industry Award 2010
Professional Diving Industry (Industrial) Award 2010
Professional Diving Industry (Recreational) Award 2010
Real Estate Industry Award 2010
Restaurant Industry Award 2010
Social, Community, Home Care and Disability Services Industry Award 2010
State Government Agencies Administration Award 2010
Supported Employment Services Award 2010
National Training Wage Schedule
Attachment B to Full Bench Decision of 4 December 2009
Model Provisions
1. Labour hire/on-hire
Industry awards |
Insert in definitions clause: “on-hire means the on-hire of an employee by their employer to a client, where such employee works under the general guidance and instruction of the client or a representative of the client.” Insert in coverage clause: “This award covers any employer who supplies labour on an on-hire basis in the industry (or industries) set out in clause (clauses) xxx in respect of on-hire employees in classifications covered by this award, and those on-hire employees, while engaged in the performance of work for a business in that industry (those industries). This sub-clause operates subject to the exclusions from coverage in this award.” |
Occupational awards |
Insert in definitions clause: “on-hire means the on-hire of an employee by their employer to a client, where such employee works under the general guidance and instruction of the client or a representative of the client.” Insert in coverage clause: “This award covers any employer who supplies on-hire employees in classifications set out in clause (clauses) xxx and those on-hire employees, if the employer is not covered by another modern award containing a classification which is more appropriate to the work performed by the employee. This sub-clause operates subject to the exclusions from coverage in this award.” |
Industry and occupational awards |
Insert in definitions clause: “on-hire means the on-hire of an employee by their employer to a client, where such employee works under the general guidance and instruction of the client or a representative of the client.” Insert in coverage clause: “(a) This award covers any employer who supplies labour on an on-hire basis in the industry (or industries) set out in clause (clauses) xxx in respect of on-hire employees in classifications covered by this award, and those on-hire employees, while engaged in the performance of work for a business in that industry (those industries).” This sub-clause operates subject to the exclusions from coverage in this award.” (b) This award covers any employer who supplies on-hire employees in classifications set out in clause (clauses) xxx and those on-hire employees, if the employer is not covered by another modern award containing a classification which is more appropriate to the work performed by the employee. This sub-clause operates subject to the exclusions from coverage in this award.” |
2. Group training employers
Industry awards |
Insert in coverage clause: “This award covers employers which provide group training or related temporary employment services for apprentices and/or trainees [delete apprentices and/or trainees if not relevant to the award] engaged in the industry (or industries) and/or parts of industry set out at clause/s xx and those apprentices and/or trainees [delete apprentices and/or trainees if not relevant to the award] engaged by a group training or related temporary employment service hosted by a company to perform work at a location where the activities described herein are being performed. This sub-clause operates subject to the exclusions from coverage in this award.” |
Occupational awards |
Insert in coverage clause: “This award covers employers which provide group training or related temporary employment services for apprentices and/or trainees [delete apprentices and/or trainees if not relevant to the award] engaged in any of the occupations set out at clause/s xx and those apprentices and/or trainees [delete apprentices and/or trainees if not relevant to the award] engaged by a group training or related temporary employment service hosted by a company to perform work at a location where the activities described herein are being performed. This sub-clause operates subject to the exclusions from coverage in this award.” |
Industry and occupational awards |
Insert in coverage clause: “This award covers employers which provide group training services for apprentices and/or trainees [delete apprentices and/or trainees if not relevant to the award] engaged in the industry (or industries), parts of industry and/or occupations set out at clause/s xx and those apprentices and/or trainees [delete apprentices and/or trainees if not relevant to the award] engaged by a group training service hosted by a company to perform work at a location where the activities described herein are being performed. This sub-clause operates subject to the exclusions from coverage in this award.” |
Attachment C to Full Bench Decision of 4 December 2009
Particular Provisions
Manufacturing and Associated Industries and Occupations Award 2010
Insert in definitions clause: “on-hire means the on-hire of an employee by their employer to a client, where such employee works under the general guidance and instruction of the client or a representative of the client.” Insert in coverage clause: (a) This award covers any employer which supplies labour on an on-hire basis in the industry (or industries) set out in sub- clause 4.2(a) or (b) in respect of on-hire employees in classifications covered by this award, and those on-hire employees, while engaged in the performance of work for a business in that industry (those industries).” (b) This award covers any employer which supplies on-hire employees in occupations set out in sub-clause 4.2(c) covered by classifications in this award and those on-hire employees, if the employer is not covered by another modern award containing a classification which is more appropriate to the work performed by the employee. (c) This sub-clause operates subject to the exclusions from coverage in this award. |
Joinery and Building Trades Award 2010
Insert in definitions clause: “on-hire means the on-hire of an employee by their employer to a client, where such employee works under the general guidance and instruction of the client or a representative of the client.” Insert in coverage clause: (a) This award covers any employer which supplies labour on an on-hire basis in the industry (or industries) set out in sub- clause 4.2(a) in respect of on-hire employees in classifications covered by this award, and those on-hire employees, while engaged in the performance of work for a business in that industry (those industries).” (b) This award covers any employer which supplies on-hire employees in occupations set out in sub-clause 4.2(b)covered by classifications in this award and those on-hire employees, if the employer is not covered by another modern award containing a classification which is more appropriate to the work performed by the employee. (c) This sub-clause operates subject to the exclusions from coverage in this award. |
Attachment D to Full Bench Decision of 4 December 2009
Labour hire/on-hire provision – application to modern awards
Modern Awards which do not require any variation
● Aluminium Industry Award 2010
● Black Coal Mining Industry Award 2010
● Contract Call Centres Award 2010
● Electrical Power Industry Award 2010
● Fire Fighting Industry Award 2010
Occupational awards
● Aircraft Cabin Crew Award 2010
● Clerks – Private Sector Award 2010
● Hydrocarbon Field Geologists Award 2010
● Mannequins and Models Award 2010
Industry awards
● Aboriginal Community Controlled Health Services Award 2010
● Airline Operations Ground Staff Award 2010
● Airport Employees Award 2010
● Ambulance and Patient Transport Industry Award 2010
● Amusement, Events and Recreation Award 2010
● Animal Care and Veterinary Services Award 2010
● Aquaculture Industry Award 2010
● Banking, Finance and Insurance Award 2010
● Broadcasting and Recorded Entertainment Award 2010
● Building and Construction General On-site Award 2010
● Business Equipment Industry Award 2010
● Cemetery Industry Award 2010
● Children’s Services Award 2010
● Cleaning Services Industry Award 2010
● Coal Export Terminals Award 2010
● Concrete Products Award 2010
● Corrections and Detention (Private Sector) Award 2010
● Dredging Industry Award 2010
● Dry Cleaning and Laundry Industry Award 2010
● Educational Services (Post-Secondary Education) Award 2010
● Educational Services (Schools) General Staff Award 2010
● Educational Services (Teachers) Award 2010
● Electrical, Electronic and Communications Contracting Award 2010
● Fast Food Industry Award 2010
● Food, Beverage and Tobacco Manufacturing Award 2010
● Gardening and Landscaping Services Award 2010
● General Retail Industry Award 2010
● Hair and Beauty Industry Award 2010
● Higher Education Industry – Academic Staff – Award 2010
● Higher Education Industry – General Staff – Award 2010
● Horse and Greyhound Training Award 2010
● Hospitality Industry (General) Award 2010
● Journalists Published Media Award 2010
● Labour Market Assistance Industry Award 2010
● Local Government Industry Award 2010
● Market and Social Research Award 2010
● Marine Tourism and Charter Vessels Award 2010
● Maritime Offshore Oil and Gas Award 2010
● Mobile Crane Hiring Award 2010
● Oil Refining and Manufacturing Award 2010
● Passenger Vehicle Transportation Award 2010
● Pest Control Industry Award 2010
● Pharmaceutical Industry Award 2010
● Pharmacy Industry Award 2010
● Ports, Harbours and Enclosed Water Vessels Award 2010
● Poultry Processing Award 2010
● Premixed Concrete Award 2010
● Professional Diving Industry (Industrial) Award 2010
● Professional Diving Industry (Recreational) Award 2010
● Racing Clubs Events Award 2010
● Racing Industry Ground Maintenance Award 2010
● Real Estate Industry Award 2010
● Registered and Licensed Clubs Award 2010
● Restaurant Industry Award 2010
● Road Transport and Distribution Award 2010
● Road Transport (Long Distance Operations) Award 2010
● Seafood Processing Award 2010
● Seagoing Industry Award 2010
● Security Services Industry Award 2010
● Social, Community, Home Care and Disability Services Industry Award 2010
● Sporting Organisations Award 2010
● State Government Agencies Administration Award 2010
● Stevedoring Industry Award 2010
● Storage Services and Wholesale Award 2010
● Supported Employment Services Award 2010
● Textile, Clothing, Footwear and Associated Industries Award 2010
● Transport (Cash in Transit) Award 2010
● Vehicle Manufacturing, Repair, Services and Retail Award 2010
Occupational and Industry Coverage
● Graphic Arts, Printing and Publishing Award 2010
● Health Professionals and Support Services Award 2010
Attachment E to Full Bench Decision of 4 December 2009
Group training organisations – application to modern awards
1. Modern awards to contain the model group training provision:
● Airline Operations—Ground Staff Award 2010
● Airport Employees Award 2010
● Aluminium Industry Award 2010
● Amusement, Events and Recreation Award 2010
● Black Coal Mining Industry Award 2010
● Building and Construction General On-site Award 2010
● Business Equipment Award 2010
● Cemetery Industry Award 2010
● Children’s Services Award 2010
● Coal Export Terminals Award 2010
● Contract Call Centres Award 2010
● Dry Cleaning and Laundry Industry Award 2010
● Educational Services (Schools) General Staff Award 2010
● Electrical, Electronic and Communications Contracting Award 2010
● Electrical Power Industry Award 2010
● Food, Beverage and Tobacco Manufacturing Award 2010
● Gardening and Landscaping Services Award 2010
● General Retail Industry Award 2010
● Graphic Arts, Printing and Publishing Award 2010
● Hair and Beauty Industry Award 2010
● Hospitality Industry (General) Award 2010
● Hydrocarbons Industry (Upstream) Award 2010
● Joinery and Building Trades Award 2010
● Local Government Industry Award 2010
● Manufacturing and Associated Industries and Occupations Award 2010
● Oil Refining and Manufacturing Award 2010
● Plumbing and Fire Sprinklers Award 2010
● Racing Industry Ground Maintenance Award 2010
● Registered and Licensed Clubs Award 2010
● Restaurant Industry Award 2010
● Stevedoring Industry Award 2010
● Telecommunications Services Award 2010
● Textile, Clothing, Footwear and Associated Industries Award 2010
● Vehicle Manufacturing, Repair, Services and Retail Award 2010
2. Modern awards to contain the model group training provision without the reference to trainees:
Nil
3. Modern awards to contain the model group training provision without the reference to apprentices:
● Aboriginal Community Controlled Health Services Award 2010
● Animal Care and Veterinary Services Award 2010
● Aquaculture Industry Award 2010
● Banking, Finance and Insurance Award 2010
● Broadcasting and Recorded Entertainment Award 2010
● Cleaning Services Award 2010
● Clerks—Private Sector Award 2010
● Concrete Products Award 2010
● Corrections and Detention (Private Sector) Award 2010
● Dredging Industry Award 2010
● Educational Services (Post-Secondary Education) Award 2010
● Fast Food Industry Award 2010
● Health Professionals and Support Services Award 2010
● Horse and Greyhound Training Award 2010
● Market and Social Research Award 2010
● Marine Tourism and Charter Vessels Award 2010
● Maritime Offshore Oil and Gas Award 2010
● Mobile Crane Hiring Award 2010
● Passenger Vehicle Transportation Award 2010
● Pest Control Industry Award 2010
● Pharmaceutical Industry Award 2010
● Pharmacy Industry Award 2010
● Poultry Processing Award 2010
● Premixed Concrete Award 2010
● Racing Clubs Events Award 2010
● Real Estate Industry Award 2010
● Road Transport and Distribution Award 2010
● Road Transport (Long Distance Operations) Award 2010
● Seafood Processing Award 2010
● Seagoing Industry Award 2010
● Sporting Organisations Award 2010
● State Government Agencies Administration Award 2010
● Storage Services and Wholesale Award 2010
4. Modern awards in which no group training provision is required:
● Aircraft Cabin Crew Award 2010
● Ambulance and Patient Transport Industry Award 2010
● Educational Services (Teachers) Award 2010
● Labour Market Assistance Industry Award 2010
● Fire Fighting Industry Award 2010
● Higher Education Industry—Academic Staff—Award 2010
● Higher Education Industry—General Staff—Award 2010
● Hydrocarbons Field Geologists Award 2010
● Journalists Published Media Award 2010
● Medical Practitioners Award 2010
● Mannequins and Models Award 2010
● Ports, Harbours and Enclosed Water Vessels Award 2010
● Professional Diving Industry (Industrial) Award 2010
● Professional Diving Industry (Recreational) Award 2010
● Professional Employees Award 2010
● Security Services Industry Award 2010
● Social, Community, Home Care and Disability Services Industry Award 2010
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