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

4 yearly review of modern awards – award stage – exposure drafts – Group 1A and 1B awards – general drafting and technical issues common to multiple exposure drafts – transitional issues – Building and Construction General On-site Award 2010 – Real Estate Industry Award 2010 – alleged inconsistencies with NES.

CONTENTS

1. Introduction

[1] Under s.156 of the Fair Work Act 2009 (the FW Act) the Fair Work Commission (the Commission) is required to review all modern awards every four years. In a statement issued on 17 March 2014 1 the Commission stated that the first 4 yearly review of modern awards (the Review) would comprise an Initial stage, dealing with jurisdictional issues2, a Common issues stage and an Award stage. This decision deals with a number of issues which have arisen in the Award stage of the Review.

[2] On 17 April 2014 a Draft Guide to the Award Stage was published on the Commission’s website outlining the process the Commission intends to follow in the Award stage. An exemplar award prepared by staff of the Commission based on the Security Services Industry Award 2010 was published at the same time as the draft guide. Following feedback, the guide and exemplar award were republished on 17 June 2014 in final form.

[3] The Award stage of the Review is being undertaken in stages. The 122 modern awards have been divided into four groups. An initial conference for Group 1 awards was held on 13 May 2014. This was followed by a conference for each award before a single member to identify the issues and determine any areas of agreement. Following reports to the Full Bench from the conference process, exposure drafts for each of the awards in Group 1 were published by the Commission. Group 1 awards were divided into sub-groups and interested parties were provided the opportunity to make written submissions and submissions in reply on each of the exposure drafts. Full Bench hearings for Group 1 awards were held on 23 and 24 October 2014 and 17, 18, and 19 November 2014.

[4] This decision deals with four matters:

(i) a range of general drafting and technical issues common to multiple exposure drafts;

(ii) certain alleged inconsistencies between provisions in certain modern awards with NES provisions;

(iii) transitional issues raised in the Building and Construction General On-site Award 2010 and the Real Estate Industry Award 2010; and

(iv) the review of the modern awards in Groups 1A and 1B.

2. General drafting and technical issues common to multiple exposure drafts

[5] A number of general drafting and technical issues have arisen during the course of the review of the Group 1 awards and it is convenient to deal with them at the outset.

2.1 Supersession clause

[6] The exposure drafts incorporated a number of changes in relation to the commencement and transitional clause currently appearing in modern awards. The key changes include removal of references to transitional arrangements, and replacing the commencement clause 3 with a supersession clause. The current commencement clause reads ‘This award commences on 1 January 2010’, and the supersession clause proposed in the exposure drafts reads as follows:

‘This award supersedes the [Award Name] but this does not affect any right, privilege, obligation or liability that a person acquired, accrued or incurred under the superseded award.’

[7] A number of parties submitted that the supersession clause proposed indicated an intention to make a new modern award to ‘supersede’ the existing 2010 modern award.

[8] The Australian Industry Group (Ai Group) and the Australian Council of Trade Unions (ACTU) submitted that modern awards should be varied during the Review rather than replaced by new modern awards. Ai Group submitted that such a course would avoid unnecessary complications associated with the operation of ss.163 and 164 of the FW Act.

[9] We propose to adopt the course of making variations to existing modern awards during the Review, rather than ‘superseding’ awards. The proposed supersession clause contained in exposure drafts for Group 1 will be removed. We agree with the view that when varying modern awards, there is no requirement for a supersession clause.

[10] On the basis that in the ordinary course awards would be varied through the Review process rather than superseded, the ACTU submitted that a clause in the following terms be inserted as part of each variation determination:

‘A variation to this award does not affect any right, privilege, obligation or liability that a person acquired, accrued or incurred under the award as it existed prior to that variation.’ 4

[11] In our view the clause proposed reflects the position at common law and the inclusion of such a clause will make modern awards simpler and easier to understand. We will include the clause in the form proposed.

[12] The ACTU also expressed the view that removal of the references to transitional arrangements may leave some workers worse off, and submits that the take home pay order provisions and the transitional provisions upon which they operate should be retained. 5

[13] Clause 2.4 in the majority of the current modern awards provides as follows:

‘Neither the making of this award nor the operation of any transitional arrangements is intended to result in a reduction in the take-home pay of employees covered by the award. On application by or on behalf of an employee who suffers a reduction in take-home pay as a result of the making of this award or the operation of any transitional arrangements, the Fair Work Commission may make any order it considers appropriate to remedy the situation.’

[14] The ACTU submitted that orders authorised by such clauses differ to those of statutory origin in the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 and the Fair Work (Transitional Provisions and Consequential Amendments) Regulations 2009; most notably, for present purposes, in that the orders authorised by the award provision are not restricted to ‘modernisation-related’ reductions in take-home pay. 6

[15] The Ai Group initially submitted that the clause should be deleted, arguing that the clause will be obsolete when the transitional provisions end on 31 December 2014, 7 but in a later submission did not object to the retention of the clause for the time being.8 Australian Business Industrial (ABI) and the NSW Business Chamber submitted that leaving the current clause 2.4 in the exposure drafts would be an appropriate solution.

[16] The current take home pay clause (see paragraph [13] above) will remain in all modern awards. Our intention is that the clause will be removed in the next four yearly review.

[17] The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) sought a specific award provision to make it clear that the Commission’s proactive proposals to make modern awards more user friendly ‘are not intended to alter the effect of entitlements and responsibilities and that intent should remain clearly expressed within the award’. 9

[18] The AMWU proposed to add an additional element to the clause proposed by the ACTU as follows:

‘The variation of this award in AM2014/XX (the review case number) is not of itself intended to result in a reduction in the take-home pay of employees covered by the award. On application by or on behalf of an employee who suffers a reduction in take-home pay or conditions as a result of a variation during the 2014 Award review, the Fair Work Commission may make any order it considers appropriate to remedy the situation.’ 10

[19] The AMWU submitted that the power of the Commission to review such applications would be limited to its existing powers under the FW Act.

[20] We do not propose to adopt the proposition put by the AMWU, as we are not persuaded it is necessary. We note that once the Review is complete and modern awards have been varied there will be scope for individual parties and organisations to utilise alternative avenues in the FW Act to correct ambiguity or errors in awards, for example s.160.

2.2 Relationship between award and NES

[21] The exposure drafts include the following clause:

‘2. The National Employment Standards and this award

2.1 The National Employment Standards (NES) and entitlements in this award contain the minimum conditions of employment for employees covered by this award.

2.2 The employer must ensure that copies of this award and the NES are available to all employees to whom they apply.

2.3 Where this award refers to a condition of employment provided for in the NES, the NES definition applies.’ (emphasis added)

[22] Ai Group submitted that a minor change has been made to the award clause that states that the National Employment Standards (NES) and award, together, contain the minimum conditions of employment.

[23] Ai Group prefers the existing clause which states:

‘The NES and this award contain the minimum conditions of employment for employees covered by this award.’

[24] Ai Group submitted that awards and the NES contain rights for employees and employers, and obligations upon employees and employers and that this role of awards is captured more adequately in the current clause than in the proposed new clause. 11

[25] We agree with the Ai Group’s submission and the existing clause will be retained.

[26] The clause in the exposure drafts relating to access to the awards and the NES has also been the subject of a number of submissions. The existing wording in modern awards provides:

‘The employer must ensure that copies of the award and the NES are available to all employees to whom they apply, either on a notice board which is conveniently located at or near the workplace or through electronic means, whichever makes them more accessible.’

[27] The exposure drafts in the Group 1 awards state generally at 2-2:

‘The employer must ensure that copies of this award and the NES are available to all employees to whom they apply.’

[28] The AMWU submitted that the current clause establishes that the award has to be provided broadly to employees, and the proposed clause actually doesn’t have that breadth related to it. The Construction, Forestry, Mining and Energy Union (CFMEU) proposed that the clause may be improved by including a reference to being more accessible to the employees. This was supported by the AMWU. 12

[29] We agree with the submissions of the AMWU and the existing clause will be retained. Further we propose to delete the words ‘whichever makes them more accessible’ from the current formulation. It seems to us that these words give rise to an obligation which would be difficult to meet in practice and that the primary obligation under the clause is clear, that is: ‘The employer must ensure that copies of the award and the NES are available to all employees to whom they apply...’. We will also add the word ‘accessible’ before ‘electronic means’ in the current clause to make it clear that if the award and the NES are provided by electronic means then the means provided must be accessible to all employees. The amended clause will be as follows:

‘The employer must ensure that copies of the award and the NES are available to all employees to whom they apply, either on a notice board which is conveniently located at or near the workplace or through accessible electronic means.’

2.3 Inclusion of NES summaries and a pay slips provision

[30] The exposure drafts have incorporated extracts and summaries of NES entitlements as well as notes to draw the reader’s attention to entitlements relating to annual leave, personal/carer’s leave, parental leave, community service leave, public holidays and redundancy. This was done to assist parties in understanding the interaction between the relevant award and NES in a single document. For example, the exposure draft for the Black Coal Mining Industry Award 2010 summarises the NES entitlements for public holidays:

‘18.1 Public holiday entitlements are provided for in the NES. The NES provides a paid day off on each public holiday, except where reasonably requested to work. For the full NES public holiday entitlement see ss.114-116 of the Act.’

[31] The exposure drafts also included the following new provision in relation to pay slips:

‘Section 536 of the Act requires the employer to give a pay slip to an employee within one working day of paying an amount to the employee in relation to the performance of work. The Fair Work Regulations 2009 specify the information that must be included in a pay slip.’

[32] A common concern, particularly amongst employer organisations, was the inclusion of notes and references to the NES and other legislative provisions in the modern award, which is a legal instrument. The Ai Group raised concerns regarding the potential for summaries and notes to mislead the reader. The Housing Industry Association (HIA), Australian Federation of Employers and Industries (AFEI) and the Master Builders Association (MBA) all supported the removal of notes from the legal instrument in their oral submissions.

[33] Some unions also expressed concerns about notes in specific awards including the ACTU and the Textile, Clothing and Footwear Union of Australia (TCFUA).

[34] As to the inclusion of the pay slip requirements, Ai Group submitted that it is not the role of the modern awards to summarise legislative entitlements and attempting to summarise some entitlements and not others has the potential to cause confusion. They also submitted that including the requirement in modern awards had the potential to triple the penalty for employers in breach of s.536.  

[35] At the hearing on 18 November 2014 the Commission foreshadowed an approach whereby it would publish two documents – the legal instrument, being the modern award as reviewed, and an annotated version of each modern award. The legal instrument would not contain summaries of NES entitlements or links to various legislation, such as the proposal in relation to pay slips. The second document will be an annotated version of each award, published by the administrative arm of the Commission and will contain summaries of NES entitlements and links to various legislative provisions. Interested parties will be consulted as to the terms of annotated awards to be published by the Commission.

[36] There was general agreement in relation to the proposal to publish an annotated version of each modern award and all parties sought to be included in the consultation process. We propose to adopt the course foreshadowed at the hearing on 18 November 2014.

2.4 Inclusion of index of facilitative provisions

[37] Some modern awards currently include facilitative provisions. The exposure drafts included definition of what a facilitative provision is and an index detailing where the clauses could be found in each award. An example from the Ambulance and Patient Transport Industry Award 2010 exposure draft is set out below.

‘5. Facilitative provisions

5.1 A facilitative provision provides that the standard approach in an award provision may be departed from by agreement between an employer and an individual employee, or the majority of employees in the enterprise or part of the enterprise concerned. Facilitative provisions are not to be used as a device to avoid award obligations nor should they result in unfairness to an employee or employees covered by this award.

5.2 Facilitative provisions in this award are contained in the following clauses:

(a) clause 8—Ordinary hours of work and rostering;
(b) clause 9.2—Paid crib time;
(c) clause 10.9—Relieving duties;
(d) clause 14.4—Time off instead of payment for overtime; and
(e) clause 18.4—Substitution of public holidays.’

[38] In their submission dated 15 October 2014 the ACTU stated that it had no objection to the inclusion of a new clause identify existing facilitative provisions in modern awards. The ACTU did suggest an amendment to the first sentence of the definition to clarify that the relevant provision may not always be accessed individually or by majority agreement, but that this would depend on the particular award.  The suggested amended clause is:

‘5.1 Agreement to vary award provisions

(a) This award also contains facilitative provisions which allow agreement between an employer and employees on how specific award provisions are to apply at the workplace or section or sections of it. The facilitative provisions are identified in clauses and 5.2, 5.3 and 5.4.

(b) The specific award provisions establish both the standard award condition and the framework within which agreement can be reached as to how the particular provisions should be applied in practice. Facilitative provisions are not to be used as a device to avoid award obligations nor should they result in unfairness to an employee or employees covered by this award.’

[39] Ai Group submitted that if the Commission decided to insert the clause into modern awards it should go no further than listing the facilitative provisions in the relevant award and that the explanatory part of the clause should be omitted as it is vague and inconsistent with the need for awards to be simple and easy to understand. ABI made submissions to similar effect and AFEI objected to the inclusion of an index of facilitative provision on the basis that there was no identified need for such an index.

[40] The major concern from employer parties in relation to the proposed provisions is that the sentence “facilitative provisions are not to be used as a device to avoid award obligations nor should they result in unfairness to an employee or employees covered by this award” may create an additional obligation which previously did not exist within the facilitative provisions.

[41] The definition and index are based on provisions that already exist in the Business Equipment Award 2010 and the sentence ‘facilitative provisions are not to be used as a device to avoid award obligations nor should they result in unfairness to an employee or employees covered by this award’ is derived from the Full Bench decision—Safety Net Adjustment and Review September 1994 13 which states:

‘. . . facilitative provisions should not be a device to avoid award obligations because the Commission is obliged to ensure, among other things, that ‘employees are protected by awards that set fair and enforceable minimum wages and conditions of employment that are maintained at a relevant level’ [s.88A(2); April 1991 National Wage Case decision, Print J7400, p.44; August decision, Print L4700, pp.33-34].

Neither should the adoption of a facilitative provision result in unfairness to the employees covered by the award. . .’

[42] We acknowledge that the last sentence in the exposure draft clause may have unintended consequences and may give rise to an additional legal obligation. Further, fairness issues are more appropriately addressed in the context of the particular facilitative provisions, which specify the extent of facilitation and the manner in which it is accessed. For these reasons we will delete the sentence: ‘Facilitative provisions are not to be used as a device to avoid award obligations nor should they result in unfairness to an employee or employees covered by the award’.

[43] However we do see merit in inserting an index to facilitative provisions. Such an index will make the awards easier to understand and will support the objective of promoting flexible working practices, by clearly identifying the facilitative provisions in a particular award. It may be that the introductory words to the index may require some amendment to accommodate the nature of the facilitative provisions in a particular award, as suggested by the ACTU, but this can be done on an award by award basis in response to proposals by interested parties, rather than on a general basis across all modern awards.

2.5 Inclusion of ‘ordinary hourly rates’ for awards with an all purpose allowance

[44] The exposure drafts have been prepared using the following principles:

• Where an award does not contain any allowances or loadings payable for all purposes, the term ‘minimum weekly/hourly rate’ has been used throughout (e.g. draft Wool Storage, Sampling and Testing Award 2014)



• Where an award contains an allowance or loading that is payable for all purposes, the term ‘ordinary hourly rate’ has been used to express penalties and loadings (e.g. “overtime is payable at 200% of the ordinary hourly rate” in draft Premixed Concrete Award 2014)



• A definition of all purposes and ordinary hourly rate has been included in the relevant awards along the following lines:




○ all purposes means the payment will be included in the rate of pay of an employee who is entitled to the allowance, when calculating any penalties or loadings or payment while they are on leave (see clause 12.2(a))
○ ordinary hourly rate means the hourly rate for an employee’s classification specified in clause 11.1, inclusive of the industry allowance.

[45] The use of the term ‘ordinary hourly rate’ has been used in affected awards to clarify that all purpose allowances must be added to the minimum rate of pay before calculating any penalty rate. When an all purpose allowance is payable to all employees in all circumstances, that amount has been added to the minimum rate in the wage rates clause and expressed as the ordinary hourly rate (see for example the industry allowance payable to all employees in the draft Salt Industry Award 2014). However many all purpose allowances are only payable to certain employees in certain qualifying circumstances so the amount cannot be included as a ‘universal’ ordinary hourly rate. In these exposure drafts, a note has been inserted to the effect that the “Ordinary hourly rate is the minimum hourly rate of pay for an employee plus any allowance payable for all purposes to which the employee is entitled” (see for example the leading hand allowance payable to certain employees in the draft Poultry Industry Award 2014).

[46] Examples of issues that parties have identified in relation to all purpose provisions or issues concerning ordinary rates of pay that relate to all purpose allowances include:

• The definition of ‘ordinary rate’ (or lack thereof) and/or which allowances have been included in the ordinary rate



• The definition of ‘all purposes’



• Which allowances have been deemed to be for ‘all purposes’



• Whether ordinary rate or minimum rate should be used when calculating certain allowances, loaded rates, penalties, apprentice, and junior rates



• Whether loadings (e.g. casual loading) should be included ‘for all purposes’ of the award

[47] Award-specific submissions concerning the above matters have been identified in the following awards:

[48] Ai Group submitted that historically, ‘all purposes’ has been commonly interpreted to mean ‘for all purposes of the award’ except where a particular clause states otherwise. Ai Group submitted that the proposed definition goes beyond ‘for all purposes of the award’ to include payments made to an employee, under the NES 14 and that the proposed definition would expand the entitlements of employees, and increase costs for employers, in numerous areas including requiring that all purpose allowances be paid in respect of:

• Annual leave (s.90(1));



• Payments in lieu of annual leave on termination (s.90(2));



• Personal/carers leave (s.99);



• Compassionate leave (s.106);



• Leave for the purposes of attending jury service (s.111(2));



• Public holidays (s.116); and



• Paid no safe job leave (s.81A(2)). 15

[49] Ai Group proposed an alternative definition of ‘all purposes’:

‘all purposes means the payment will be included in the rate of pay of an employee who is entitled to the allowance when calculating any payments under this award, unless otherwise stated in a particular clause’.

[50] The ACTU submitted that all purpose allowances have historically been paid to employees for all purposes of the award. Prior to the implementation of the FW Act, leave entitlements were prescribed by awards. Consequently, all purpose allowances were generally paid in respect of annual leave, personal/carers leave, bereavement leave, leave for the purpose of attending jury service and public holidays. 16

[51] The ACTU highlighted in their submission that the NES currently provides that leave entitlements are payable at the base rate. A number of modern awards supplement the base rate by providing that all purpose allowances are payable while an employee is on annual leave. The ACTU submitted that it is appropriate for modern awards to supplement the base rate with respect to leave entitlements, including but not limited to annual leave, to take into account all purpose allowances. The ACTU submitted that this is necessary to provide a fair and relevant safety net. 17

[52] In our view these issues require further consideration. We acknowledge that the adoption of a general definition of ‘all purposes’ may not be appropriate as it may give rise to unintended consequences. However, it is important that the rate of pay to be paid to an employee while on a period of paid leave is clearly identified in the relevant modern award. While the definition of ‘base rate of pay’ included at s.16 of the FW Act excludes monetary allowances, a modern award may supplement the NES by, for example, providing that the rate payable to an employee while on annual leave or paid personal/carer’s leave is higher than the employee’s base rate of pay (see s.55(4)). We propose to provide parties with a further opportunity to make submissions in relation to these issues in response to the revised exposure drafts.

[53] Revised exposure drafts will be issued by the end of January 2015. Interested parties will have until 4.00 pm on 6 March 2015 to comment on the revised drafts (including the rate of pay to be paid to an employee while on a period of paid leave) and oral hearings will be held on 24 and 25 March 2015.

2.6 Inclusion of summary wages tables

[54] In its submission on Sub-group 1A and 1B Award exposure drafts, the Ai Group submitted that inclusion of the proposed summary of hourly award rates of pay schedule is not necessary to achieve the modern awards objective. Ai Group is also concerned that the timeframe of the 4 yearly review does not allow parties enough time to check the rates of pay proposed and to understand the award interpretations that underpin the rates in the schedule. 18 If the schedule is to be included it is submitted that it should clearly specify the formulas used to calculate the rates and identify what rounding rules have been used.19

[55] The ACTU did not oppose inclusion of tables of rates in wages provisions or separate schedules summarising monetary allowances and hourly rates of pay, provided the information accurately reflects existing entitlements. 20

[56] The ACTU noted, however, that there is a range of views on this issue among its affiliates, and that it supported a proposal put by the TCFUA to include a note ‘which makes it clear that award rates are minimum wage rates only and that an employee may be entitled to higher rates of pay as part of their contract of employment’. 21

[57] We are not persuaded that the note proposed by the TCFUA is necessary to achieve the modern awards objective.

[58] The summary tables will make modern awards easier to understand and for that reason they will be retained. Additional time will be provided to allow parties to check the rates in each summary table and further comments can be made in the context of submissions on the revised exposure drafts.

2.7 Inclusion of examples that clarify the operation of provisions

[59] The exposure drafts have incorporated the use of a select number of examples to provide additional guidance to employers and employees as to the operation and interpretation of award provisions.

[60] A number of parties opposed to the inclusion of examples in the exposure drafts. Business SA and the AFEI submitted that the use of a select number of examples did not advance the objective of modern awards to be ‘simple and easy to understand’ 22 and that by extending the length of the award with examples, the modern award objective would be undermined. ABI and New South Wales Business Chamber Ltd submitted that a solution to this issue would be to insert a hyperlink to the example as opposed to being in the body of the instrument itself.

[61] Some parties also submitted it was not clear which examples would be included, how many and whether they would be regarded as terms of an award. 23 Business SA asserted the inclusion of examples in a modern award as a legal instrument would have a binding effect and that managing and updating such examples would be an inefficient use of the Commission’s limited time and resources.24 Similarly, the Horticulture Taskforce noted examples did not reflect existing practice and past examples had not been reintroduced as part of the Part 10A award modernisation process in 2012.25

[62] Conversely, the Ai Group did not oppose the inclusion of examples within the awards, provided the examples were relevant and accurate. 26

[63] In our view the inclusion of relevant and accurate examples will make modern awards easier to understand and for that reason will be included where appropriate.

2.8 National Training Wage Schedule

[64] The exposure drafts for Group 1 awards proposed changes to the National Training Wage Schedule. The proposed amendments combined rates for part-time and full-time traineeships in the same table and make subsequent changes to wording and cross references consistent with that change.

[65] It was submitted by the ACTU that the proposed amendments fail to take into account the fact that there are important differences in the minimum wage provisions governing part-time and full-time apprenticeships under the current National Training Wage Schedule. 27

[66] At the hearing on 17 November 2014 it was proposed that the National Training Wage Schedule should remain as it currently stands in modern awards. There was general agreement to this course. In correspondence dated 19 November 2014 the ACTU said that the consensus among industrial parties is that it is not necessary to alter the existing provisions in order to achieve the modern award objective nor is it desirable to do so as the proposed amendments would have unintended consequences for employees paid in accordance with the Schedule.

[67] Given the view of the major parties, the National Training Wage Schedule will not be altered and will remain in its current form.

2.9 Casual employment

[68] An issue that has arisen that is common to all awards in group 1, relates to a note that was inserted by the Commission into all exposure drafts in relation to casual employees. Parties were asked to identify provisions in the award that do not apply to casuals. The current clause in the exposure draft and the note are set out as follows:

The following provisions of this award do not apply to casual employees:

Parties are asked to provide a list of provisions that do not apply to casual employees.

[69] This proposal generated significant controversy among interested parties to many of the Group 1 modern awards. We have decided that the above sub-clause and note will be removed from all the exposure drafts. If any party wishes to pursue the insertion of this provision into a particular award, then this can be raised by parties at the award stage.

3. Alleged NES Inconsistencies

[70] The Commission has received submissions from the Fair Work Ombudsman (FWO) identifying a number of provisions in modern awards which, it is contended, are inconsistent with the provisions of the NES. A number of other parties have also made submissions identifying alleged inconsistencies with the NES in certain modern awards.

[71] We propose to consider and, if necessary, remedy the alleged inconsistencies with the NES identified by the FWO as well as by other parties. That consideration will extend to all 122 modern awards (that is, not just the awards identified in Group 1).

[72] In a Statement issued on 31 October 2014 28 the identified inconsistencies were allocated into one of the following five categories:

(1) Provisions which are concerned with restrictions on the payment of annual leave loading upon termination of employment.
(2) Textile, Clothing, Footwear and Associated Industries Award 2010 provisions.
(3) Provisions about which there appears to be agreement as to both the existence of an inconsistency with the NES and the award variation appropriate to remedy that inconsistency.
(4) Provisions about which there appears to be agreement as to the existence of an inconsistency with the NES, but no agreement as yet concerning the appropriate remedial award variation.
(5) Provisions about which there is, as yet, no agreement as to the existence of an inconsistency with the NES.

[73] A schedule to the 31 October 2014 Statement set out which category each modern award provision identified by the FWO and other parties falls.

[74] The matters in category 1 will be referred to the Annual Leave Full Bench for hearing and determination. The matter in category 2 will be dealt with as part of the broader process established for the conduct of the review of the Textile, Clothing, Footwear and Associated Industries Award 2010. The matters in the remaining categories (3, 4 and 5) will be dealt with by this Full Bench.

[75] In respect of matters in category 5, parties will be given the opportunity to file further submissions as to whether an inconsistency exists in accordance with the timetable set out in the 31 October 2014 Statement. A further Full Bench hearing as to category 5 will occur on Thursday 26 February 2015.

[76] This decision deals with the matters falling in categories 3 and 4. In circumstances where we have determined that there is an inconsistency we will publish a draft determination setting out a variation to remedy the inconsistency. Interested parties will be given an opportunity to comment on the draft determination.

[77] Additionally, since the 31 October 2014 Statement was issued, the Commission has received further submissions from interested parties which make it necessary to modify or supplement the categories of modern award provisions identified in the Statement. The CFMEU in a submission dated 21 November 2014 has submitted that clause 34.4 of the Timber Industry Award 2010, which was placed in category 5, should have been placed in category 3 since it agreed with Ai Group that it was inconsistent with the NES. Accordingly that provision shall be removed from category 5 and dealt with in this decision.

[78] In a submission dated 21 November 2014, the Transport Workers’ Union of Australia (TWU) submitted that it agreed with the FWO that clause 34.2 of the Airline Operations—Ground Staff Award 2010 was inconsistent with the NES. However because the question of inconsistency in respect of this provision remains contested (in that Ai Group and ABI disagree that there is an inconsistency), it will remain in category 5.

[79] The TWU also identified the following provisions which restricted the payment of annual leave loading upon termination, which will be added to category 1 and dealt with by the Annual Leave Full Bench:

Award	Clause
Airline Operations—Ground Staff Award 2010	34.5(b)
Passenger Vehicle Transportation Award 2010	24.3
Waste Management Award 2010	33.2

[80] The TWU additionally submitted that the following provisions were inconsistent with NES redundancy provisions:

Award	Clause
Airline Operations - Ground Staff Award 2010	13.2
Passenger Vehicle Transportation Award 2010	12.2
Road Transport and Distribution Award 2010	14.2
Road Transport (Long Distance Operations) Award 2010	12.2
Transport (Cash in Transit) Award 2010	13.2
Waste Management Award 2010	17.2 and 23.2

[81] Because no other interested party has had an opportunity to respond to the TWU’s submission in this respect, they will be added to category 5.

[82] In a submission also dated 21 November 2014, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) has referred to three provisions in category 5 (clause 25.9 of the Horticulture Award 2010, clause 23.7(a) of the Pastoral Award 2010 and clause 30.9 of the Wine Industry Award 2010), and has identified the following modern award provisions as raising the same issue of potential inconsistency with s.91 of the FW Act:

Award	Clause
Building and Construction General On-site Award 2010	17.7
Manufacturing and Associated Industries and Occupations Award 2010	41.9
Plumbing and Fire Sprinklers Award 2010	18.6

[83] These award provisions will be added to category 5 (noting that the CEPU does not agree that there is any inconsistency with s.91).

Inconsistency with s.87(1) – annual leave entitlement

[84] Section 87(1) provides employees, other than casual employees, with an entitlement to four weeks’ annual leave, or five weeks’ paid annual leave for (in the case of employees covered by a modern award) shiftworkers who are defined or described as such for the purposes of the NES. It was determined by a Full Bench of the Commission in Canavan Building Pty Ltd 29 that “paid annual leave” in s.87(1) means, except on termination, the provision of actual leave accompanied by pay at the time it is taken, and that payment of annual leave by way of a loading on pay was inconsistent with the NES because it did not involve the provision of “paid annual leave” as properly understood.

[85] Clause 11.5 of the Alpine Resorts Award 2010 provides that “The hourly rate of seasonal employees will include an 8.33% loading of the applicable hourly rate instead of annual leave”. Seasonal employees under this award are not casual employees. The clause is therefore inconsistent with s.87(1).

Inconsistency with s.87(2) – accrual of annual leave

[86] Section 87(2) deals with the accrual of annual leave under the NES as follows:

Accrual of leave

(2) An employee’s entitlement to paid annual leave accrues progressively during a year of service according to the employee’s ordinary hours of work, and accumulates from year to year.

Note: If an employee’s employment ends during what would otherwise have been a year of service, the employee accrues paid annual leave up to when the employment ends.

[87] The critical feature of s.87(2) is that, unlike the annual leave regimes found in many pre-modern awards and State legislation, there is no minimum qualifying period of service before an employee accrues a period of annual leave accessible by the employee.

[88] We consider the following modern award provisions to be inconsistent with s.87(2) because, in respect of the entitlement conferred by s.87(1)(b)(i) to an additional week’s annual leave for employees covered by a modern award who are defined or described as shiftworkers, each of them:

(1) requires a minimum of 12 months’ service before the additional entitlement applies; and

(2) provides that the additional entitlement accrues on a monthly and not a daily basis.

Award	Clause
Ambulance and Patient Transport Industry Award 2010	30.2(b)
Aquaculture Industry Award 2010	23.6(b)
Business Equipment Award 2010	31.5(b)
Car Parking Award 2010	25.2(b)
Concrete Products Award 2010	26.2(b)
Corrections and Detention (Private Sector) Award 2010	24.2(b)
Dry Cleaning and Laundry Industry Award 2010	25.3(b)
Electrical, Electronic and Communications Contracting Award 2010	28.1(b)
Fire Fighting Industry Award 2010	28.2(b)
Food, Beverage and Tobacco Manufacturing Award 2010	34.3(b)
Graphic Arts, Printing and Publishing Award 2010	37.4(b)
Local Government Industry Award 2010	25.2(b)
Manufacturing and Associated Industries and Occupations Award 2010	41.3(b)
Miscellaneous Award 2010	23.2
Oil Refining and Manufacturing Award 2010	26.4
Pest Control Industry Award 2010	24.2(b)
Pharmaceutical Industry Award 2010	26.2(b)
Poultry Processing Award 2010	27.2(b)
Professional Employees Award 2010	19.3(b)
Road Transport and Distribution Award 2010	29.1(b)
Seafood Processing Award 2010	27.3(b)
Security Services Industry Award 2010	24.2(b)
Storage Services and Wholesale Award 2010	26.3(b)
Timber Industry Award 2010	33.3(b)
Transport (Cash in Transit) Award 2010	29.2(b)
Vehicle Manufacturing, Repair, Services and Retail Award 2010	29.5(b)
Water Industry Award 2010	27.2(b)
Wine Industry Award 2010	30.2(b)

[89] In addition, clause 28.3(b) of the Fire Fighting Industry Award 2010 provides, in respect of employees on a “10/14 roster”:

‘(b) Where an employee leaves their employment before the completion of the full 12 month qualifying period for annual leave in any year of service, they will be entitled to pro rata payment instead of the annual leave provided in this clause for such broken periods of service calculated on the basis of 21.67% of the ordinary wage payment received by the employee during such period.’

[90] Although the entitlement provided for by this clause is not directly inconsistent with the NES, that part of the provision which refers to there being a 12 month qualifying period for annual leave is inconsistent with s.87(2).

Inconsistency with s.89(2) – interaction between personal/carer’s leave and annual leave

[91] Section 89(2) provides:

Other periods of leave

(2) If the period during which an employee takes paid annual leave includes a period of any other leave (other than unpaid parental leave) under this Part, or a period of absence from employment under Division 8 (which deals with community service leave), the employee is taken not to be on paid annual leave for the period of that other leave or absence.

[92] The effect of s.89(2) in respect of personal/carer’s leave, is if during a period when an employee is taking paid annual leave, it becomes necessary for the employee to access a period of personal carer’s leave, then the employee is taken not to be on paid annual leave whilst accessing personal/carer’s leave.

[93] The following modern award provisions are inconsistent with s.89(2) in that they place the identified impermissible conditions upon the circumstances in which a period of personal/carer’s leave accessed during paid annual leave will be taken not to be annual leave:

(1) Air Pilots Award 2010, clause 27.8(a): requires the employee to be “seriously ill” and the period of personal/carer’s leave to be of at least seven days’ duration.

(2) Aircraft Cabin Crew Award 2010, clause 25.9: requires the personal/carer’s leave to be of at least one working day’s duration.

(3) Labour Market Assistance Industry Award 2010, clause 25.3: requires the period of sickness or injury to be at least five working days’ duration, and purports to re-credit the employee with the equivalent period of annual leave to “be granted at a time convenient to the employer”.

Inconsistency with s.90(2) – payment for annual leave upon termination of employment

[94] Section 90(2) provides:

(2) If, when the employment of an employee ends, the employee has a period of untaken paid annual leave, the employer must pay the employee the amount that would have been payable to the employee had the employee taken that period of leave.

[95] There is no condition or restriction in s.90(2) upon the requirement to pay out any untaken period of annual leave upon termination of employment. Payment of untaken annual leave is not dependent upon the length of the employee’s employment or the circumstances in which the employment is terminated.

[96] The following modern award provisions are inconsistent with s.90(2) because they impose the identified impermissible conditions on the payment of untaken annual leave on termination of employment:

(1) Airport Employees Award 2010, clause 31.9: untaken annual leave is only payable to an employee terminated in the first 12 months of employment if the employment has been terminated through no fault of the employee.

(2) Business Equipment Award 2010, clause 31.8(a): untaken annual leave is only payable on termination if the employee has one or more weeks’ service and the employment has terminated for any reason other than serious and wilful misconduct.

Inconsistency with s.96(1) – entitlement to personal/carer’s leave

[97] Section 96(1) establishes an entitlement to ten days of paid personal/carer’s leave for each year of service with an employer.

[98] Clause 32.6 of the Airport Employees Award 2010 is inconsistent with s.96(1) because it limits the amount of personal/carer’s leave which can be used to provide care and support for members of the employee’s immediate family or household to five days per year.

Inconsistency with s.101 – cashing out paid personal/carer’s leave

[99] Section 101 permits modern awards and enterprise agreements to include terms providing for the cashing out of paid personal/carer’s leave by an employee, subject to certain specified conditions. One of those conditions, in s.101(2)(b), is that each cashing out must be by a separate agreement in writing between the employer and the employee.

[100] Clause 34.4(a) of the Timber Industry Award 2010 allows certain categories of employees to “elect in writing” to cash out personal/carer’s leave subject to a number of specified conditions. A written election by the employee does not necessitate the agreement of the employer, as required by s.101(2)(b). Nor does the clause require a separate agreement for each cashing out, as also required by s.101(2)(b). The clause is therefore inconsistent with s.101(b).

Inconsistency with s.104 – entitlement to compassionate leave

[101] Section 104 establishes an entitlement to two days of compassionate leave for each occasion when a member of the employee’s immediate family or household contracts or develops a personal illness or sustains a personal injury that poses a serious threat to his or her life, or dies.

[102] Clause 25.3(a)(ii) of the Higher Education Industry—Academic Staff—Award 2010 provides, in relation to compassionate leave for casual employees:

‘(a) Subject to the evidentiary and notice requirements as provided for in the NES, casual employees are entitled to not be available to attend work or to leave work:

...

(ii) upon the death in Australia of an immediate family or household member.’

[103] The above provision is inconsistent with s.104 insofar as it requires as a condition for taking compassionate leave that the death of the immediate family or household member must have occurred in Australia.

Inconsistency with ss.113 and 155 – long service leave

[104] Section 113 provides that employees, including casual employees, may be entitled to long service leave in accordance with award-derived long service leave terms and agreement-derived long service leave terms. Employees, including casual employees, may otherwise derive long service leave entitlements from State or Territory legislation, the operation of which is not excluded by the FW Act (see.s.27(2)(g)). Section 155 (which is not itself part of the NES) provides that a modern award must not include terms dealing with long service leave.

[105] The following modern awards provisions deal with long service leave contrary to s.155, and do so in a way which may diminish the entitlements of employees under s.113 or under applicable State or Territory legislation:

(1) Racing Industry Ground Maintenance Award 2010, clause 10.3(d): provides that the casual loading is paid instead of long service leave.

(2) Silviculture Award 2010, clause 10.4(c): provides that the casual loading is paid instead of long service leave.

(3) Sugar Industry Award 2010, clause 16.5(f): provides for certain benefits payable upon redundancy instead of long service leave.

Inconsistency with ss.114(1) and 116 – payment for absence on public holiday

[106] Under ss.114(1) and 116, an employee other than a casual employee is entitled to be absent from work on a public holiday and to receive his or her base rate of pay for ordinary hours falling on the public holiday.

[107] The following modern award provisions are inconsistent with these provisions of the NES because they impose the identified impermissible conditions on the public holiday entitlement:

(1) Contract Call Centres Award 2010, clause 30.5: removes the entitlement to payment for a public holiday where the employee is absent on the working day before or after the public holiday without reasonable excuse or the employer’s consent.

(2) Waste Management Award 2010, clause 32.2: removes the entitlement to payment for a public holiday where the employee is absent from work on the day before or after the public holiday.

Inconsistency with s.117 – notice of termination

[108] Section 117(2) requires that an employee not be terminated by an employer unless the minimum amounts of notice or payments in lieu of notice prescribed by s.117(3) are provided. Section 123(1)(b) provides, relevantly, that s.117 does not apply to an employee whose employment is terminated because of serious misconduct.

[109] The following modern award provisions are inconsistent with s.117 because they prescribe the identified lesser standards of notice:

(1) Horse and Greyhound Training Award 2010, clause 10.2: prescribes periods of notice for probationary employees that are shorter than those prescribed by s.117(3).

(2) Marine Towage Award 2010, clause 11.5: allows an employer to terminate an employee’s employment without notice or payment in lieu of notice for “misconduct” - that is, serious misconduct is not required.

Conclusion

[110] Draft determinations in respect of the identified modern award provisions rectifying the inconsistencies with the NES we have found to exist will be published in January 2015. Parties will have an opportunity to file submissions about these draft determinations by 13 February 2015. There will be an opportunity to make short oral submissions about the draft determination at the hearing on 26 February 2015 dealing with the remaining categories of NES issues. As noted at paragraphs [75] and [76] of this decision the matters in category 1 will be referred to the Annual Leave Full Bench, the matter in category 2 will be dealt with as part of the broader process established for the conduct of the review of the Textile, Clothing, Footwear and Associated Industries Award 2010. In respect of category 5, parties will be given the opportunity to file further submissions as to whether an inconsistency exists. A timeline outlining this process is set out at Attachment A to this decision.

4. Transitional Issues:

4.1 Building and Construction General On-site Award 2010

Background

[111] Clause 19.7 of the Building and Construction General On-site Award 2010 (BCG Award) prescribes pay rates for apprentices. Clause 19.7(d) is a transitional provision which is applicable in Western Australia only. It provides:

‘(d) Transitional provisions—Two year residential apprenticeships in Western Australia commence prior to 1st January 2014

(i) An apprenticed employee undertaking a two year residential apprenticeship in Western Australia will be paid the percentage of the standard rate, as follows:

Nominated residential apprenticeships in Western Australia
Year of apprenticeship	% of the standard rate
1st year	55
2nd year	75

(ii) Clause 19.7(d) ceases to operate on 31 December 2014.’

[112] The basis upon which clause 19.7(d) was included in the BCG Award was explained in a Full Bench decision issued on 31 December 2009 in the course of the award modernisation process concerning the BCG Award 30 as follows:

‘[19] In respect of nominated residential apprenticeships in Western Australia, the MBA submitted that cl.19.7(b) does not contain rates of pay for the permitted two year term of nominated residential apprenticeships available in Western Australia and the subclause should be modified so that the 55% and then the 75% rate may continue to apply to ensure continuity of engagement for the relevant apprentices.

[20] We will include a new transitional provision, as follows, to regulate wages for those apprentices undertaking two year residential apprenticeships in Western Australia. We will make the variation as a transitional provision, to allow application to be made to vary the award substantively, in the context of the setting aside of the Western Australian NAPSA or some later time, if there exists a continuing need to accommodate such apprenticeships in the award.’

[113] In the BCG Award as originally made, the heading of clause 19.7(d) was “Transitional Provisions—Two year residential apprenticeships in Western Australia”. The heading was changed to its current form in a variation made on 12 December 2013 31 arising from the Full Bench decision in Modern Awards Review 2012—Apprentices, Trainees and Juniors32 which introduced competency based wages progression into a number of modern awards including the BCG Award. The expiry date of 31 December 2014 which had appeared in the provision since the BCG Award first took effect from 1 January 2010 was necessary because any continuation of the provision in its current form as applicable to Western Australia only beyond that date would contravene s.154 of the FW Act.

Housing Industry Association’s application

[114] The HIA has applied for a new provision with Australia-wide effect to replace clause 19.7(d). The new provision it proposes is as follows:

‘19.7(d) An apprenticed employee undertaking a two year residential apprenticeship will be paid the percentage of the standard rate as follows:

Nominated residential apprenticeships
Year of Apprenticeship	% of the standard rate
1st year	55%
2nd year	75%’

[115] The HIA adduced evidence from Dale Alcock, the Managing Director of Dale Alcock Homes and the ABN Group, which builds homes in Western Australia and Victoria. The HIA submitted that:

● two-year residential apprenticeships were developed in Western Australia in 2005 in conjunction with the then State government to assist in addressing a skills shortage;

● such apprenticeships were attractive to mature age workers and persons with learning difficulties;

● the apprenticeships were necessary to allow a supply of qualified individuals to meet anticipated growth in the housing sector building activity;

● if the BCG Award did not provide rates of pay for two-year residential apprenticeships there would be no mechanism within which to engage a person on such an apprenticeship;

● no detriment attached to the creation of a provision with Australia-wide application, even if no two-year residential apprenticeships were ever taken up outside of Western Australia because of the lack of any such apprenticeship arrangements elsewhere; and

● the lack of any engagement of two-year apprentices in recent times was due to a cyclical downturn in the Western Australian home building industry.

[116] Master Builders Australia supported the HIA’s position and made submissions to similar effect.

Opposition to the application

[117] The CFMEU opposed the application. It made the following submissions:

● the HIA’s proposed provision would offend s.154 in that it was incapable of practical operation outside of Western Australia because of the lack of any two-year residential apprenticeships outside that State;

● the apprenticeships are not currently being used, with statistics on the Western Australian Department of Training and Workforce Development indicating that none were taken up in 2012-13 and 2013-14 and with Mr Alcock’s own business currently having no two-year residential apprenticeships amongst its 300 directly indentured apprentices;

● the proposed provision was contrary to the Modern Awards Review 2012—Apprentices, Trainees and Juniors decision in that it did not provide for competency-based wage progression; and

● its effect, by introducing new rates in States and Territories apart from Western Australia, was to vary minimum wage rates, and because it was not sought to be justified on work value grounds, it was not open to the Commission under s.156(3) to make a determination varying the BCG Award as proposed.

Consideration

[118] We consider that it is clear that the variation proposed by HIA would be contrary to the Full Bench’s Modern Awards Review 2012—Apprentices, Trainees and Juniors decision. 33 That decision introduced competency-based wages progression for apprentices into clause 19.7 of the BCG Award. The variations made to clause 19.7(b) of the BCG Award as a result of the Full Bench’s decision make it clear that competency-based wages progression was to apply to apprenticeships entered into from 1 January 2014. The variation to the heading in clause 19.7(d) further made it clear that the Western Australian two-year residential apprenticeship provisions were only to apply to apprenticeships commenced prior to 1 January 2014. That is, independent of the fact that clause 19.7(d) was to cease operation on 31 December 2014, clause 19.7(d) was not to apply to any apprenticeships entered into after 31 December 2013 because it did not provide for competency-based wage progression (CBWP). We note in this connection that the Full Bench’s decision records that the Western Australian Government supported “the inclusion of competency based training arrangements and the inclusion of provisions in modern awards to facilitate such arrangements”.34

[119] The Full Bench in the Modern Awards Review 2012—Apprentices, Trainees and Juniors decision dealt comprehensively with the issue of minimum wages rates for apprentices. Significantly the Full Bench stated the following conclusion in respect of competency-based wage progression:

‘[295] We are satisfied that it is consistent with the modern awards objective for the Commission to facilitate the introduction of CBWP for apprentices in awards where it is not already provided for. We agree with the submission of the Commonwealth that the adoption of CBWP in awards supports the modern awards objective of promoting flexible modern work practices and the efficient performance of work (s.134(1)(d) of the Act). We are also satisfied that such a provision will promote productivity in that it will facilitate a more skilled workforce (s.134(1)(f)).’

[120] No party contended that we should revisit that conclusion. In that circumstance we do not consider that there is a proper basis to conclude that the establishment of new provisions for the payment of apprentices which are not competency-based as proposed by HIA would be consistent with the modern awards objective in s.134 of the FW Act. Nor do we consider, having regard to the absence of two-year apprenticeships outside of Western Australia and their lack of utilisation within Western Australia, that the inclusion of the provisions is necessary to achieve the modern awards objective or the minimum wages objective as required by s.138.

[121] The HIA’s proposed new provision is rejected.

4.2 Real Estate Industry Award 2010

Background

[122] The Real Estate Industry Award 2010 (REI Award) currently contains provisions facilitating agreements between employers and individual employees concerning incentive-based payment arrangements. Clause 15 deals with such payments, where agreed, to be made in addition to the minimum weekly wage rates prescribed by the REI Award as follows:

‘15. Payment by wages with commission, bonus or incentive payments

15.1 Where the employer and the employee agree that, in addition to the minimum weekly wage, the employee will be entitled to a portion of the commission paid to the employer, then any method of calculation or any formula for calculating the amount of commission that will be payable to the employee must be evidenced in a written agreement between the employer and the employee.

15.2 Where it has been agreed between the employer and the employee that the employee will be entitled to a bonus or an incentive payment (as opposed to commission under clause 15.1) particulars of the bonus or incentive payment entitlement must be evidenced in a written agreement between the employer and the employee.’

[123] Clause 16 concerns agreements for payment of employees engaged in property sales by commission only:

‘16. Commission-only employment

16.1 Subject to clause 16.2, an employee engaged in a property sales classification may agree with the employer to be paid on a commission-only basis. Such an employee is considered a pieceworker, and is referred to in this award (and within the real estate industry) as a commission-only employee.

16.2 Minimum requirements for commission-only employment
A person may only be a commission-only employee when all of the following conditions have been satisfied:

(a) the employee has agreed in writing with the employer to be remunerated on a commission-only basis and has entered into a written agreement (commission-only agreement) with the employer that sets out the basis upon which the entitlement to commission will be calculated;

(b) the employee has been issued with a real estate agent’s licence or is registered or permitted to perform the duties of a real estate salesperson under real estate law;

(c) the employee has been engaged as a real estate salesperson (with any licensed real estate agent) or was an active licensed real estate agent for an aggregate period of at least 12 months in the five years immediately prior to entering into the commission-only agreement;

(d) the employee is at least 21 years of age;

(e) the employee is not engaged as a casual, a junior, a property sales associate or a trainee; and

(f) the employee can demonstrate (with the present or any past employer) that they had achieved the minimum income threshold in clause 16.3. Provided that the minimum income threshold will not need to have been achieved if the employee has operated their own real estate business within the last five years.

16.3 Minimum income threshold

(a) The minimum income threshold has been achieved if (and only if) the employee can establish that, if the lowest rate of commission to be applied under the commission-only agreement had been applied to the employee’s real estate sales or commercial leasing transactions in any single 12 month period in the five years immediately prior to entering into the commission-only agreement, the employee would have been entitled to be paid the following amount:

(i) if the employee was not required to incur the costs of supplying and running a motor vehicle and/or the costs of supplying and using a mobile telephone, an amount at least equal to the employee’s wage specified in clause 14Minimum weekly wages, calculated as an annual amount, based on the minimum weekly wage for the employee’s classification; or

(ii) if the employee was required to incur the costs of supplying and running a motor vehicle and/or the costs of supplying and using a mobile telephone, an amount at least equal to 110% of the employee’s wage specified in clause 14Minimum weekly wages, calculated as an annual amount, based on the minimum weekly wage for the employee’s classification.

(b) The employer is entitled to rely on any data supplied by the employee from any past employer for the purpose of determining if the minimum income threshold has been achieved, provided that the employee provides the employer with a statutory declaration about the accuracy of such data.

16.4 The following clauses of this award do not apply to a commission-only employee:

(a) clause 10.3(b) - Payment for part-time employment;

(b) clause 14.1 - Minimum weekly wages;

(c) clause 15 - Payment by wages with commission, bonus or incentive payments;

(d) clause 18 - Allowance; and

(e) clause 24 - Overtime.

16.5 Minimum commission-only rate

(a) The minimum commission-only rate is calculated as 35% of the employer’s net commission.

(b) Subject to clauses 16.5(c) and (d), a commission-only employee is always entitled to at least the minimum commission-only rate for each sales or commercial leasing transaction for which the employee was responsible.

(c) In the situation where:

(i) two or more employees are separately responsible for different components of a sales or commercial leasing transaction; and

(ii) the employee portion of the employer’s net commission is to be split amongst the employees according to the component(s) for which the particular employee was responsible,

any commission-only employee responsible for one or more component(s) is entitled to at least the minimum commission-only rate proportionate to the value of each component.

(d) With respect to clause 16.5(c):

(i) component(s) may include, but are not limited to:

● commercial leasing of a property;
● listing a property or business;
● managing the listing of a property or business;
● selling a property or business; and/or
● nurturing a legally-enforceable contract to completion,

(ii) the proportionate value of each component will be as agreed in writing between the employer and the employee.

16.6 Where it is agreed that an employee will also be entitled to a portion of the commission paid to the employer greater than the minimum commission-only rate prescribed in clause 16.5 then any method of calculation, or any formula for calculating what amount of commission will be payable to the employee in excess of the minimum commission-only rate, must be evidenced in a written agreement between the employer and the employee.’

[124] Schedule E of the REI Award contains transitional provisions concerning the registration of agreements between employers and employees entered into in New South Wales, Queensland and South Australia pursuant to clauses 15.1 or 16.2(a). These transitional provisions have their origin in State awards which previously applied in those states. Schedule E provides:

‘Schedule E—Transitional Provisions for Written Agreements
E.1 Application of Schedule E
E.1.1 This Schedule applies to:

(a) employers in New South Wales and Queensland and those of their employees who are employed under a Property or Strata Management classification or a Property Sales classification; and

(b) employers in South Australia and those of their employees who are employed under a Property Sales classification.

E.2 Explanation of Schedule E
E.2.1 The State awards for property management employees and property salespeople in New South Wales and Queensland, and for property salespeople in South Australia contain provisions for the registration of employment agreements or letters of appointment.
E.2.2 The intent of these provisions will continue under the Federal award until 31 December 2014, but in an amended form to suit the purposes of this award.
E.3 Registration of written agreements
E.3.1 The following will be registered as set out in clauses E.3.3 to E.3.6 (inclusive):

(a) a written agreement that is required to be made by clauses 15.1 or 16.2(a); or

(b) if no written agreement is required to be made by clauses 15.1 or 16.2(a) a written agreement specifying that the employee is not entitled to any form of bonus, commission or incentive payment.

E.3.2 Variations to any written agreement must also be registered in the same manner as set out in clause E.3.1, but only if the variation applies to commission, incentive payment or bonus arrangements.
E.3.3 New South Wales

(a) An employer cited in clause E.1.1(a) will, for each employee cited in clause E.1.1(a), send two signed copies of a written agreement to the Real Estate Employers’ Federation of New South Wales, Level 6, 99 Bathurst Street, Sydney NSW 2000.

(b) An administration fee as specified in clause E.3.6(a) is payable as follows:

(i) one half to Real Estate Employers’ Federation of New South Wales (REEF); and

(ii) one half to Real Estate Association of New South Wales (REA NSW). This fee may be recovered by the employer from the employee’s commission, incentive payment or bonus.

(c) In New South Wales, clause E.3.6(a) does not apply to a written agreement registered under clause E.3.2.

E.3.4 Queensland

(a) An employer cited in clause E.1.1(a) will, for each employee cited in clause E.1.1(a), send one copy of the written agreement to the Queensland Property Industry Registry (QPIR), PO Box 274, Rochedale South QLD 4123.

(b) QPIR is jointly administered by the Property Sales Association of Queensland and the Queensland Real Estate Industrial Organisation of Employers.

(c) An administration fee as specified in clause E.3.6(a) is payable to QPIR.

(d) One half of the above administration fee may be recovered by the employer from the employee’s commission, incentive payment or bonus.

(e) Until a written agreement is registered with QPIR:

(i) a person may not be a commission-only employee; and

(ii) the employer must pay on a weekly basis, in addition to any payment of commission, bonus or other incentive payments, not less than the minimum weekly wage specified in clause 14.1.

(f) Despite paragraph (e) hereof, where the employer and employee genuinely agree that the written agreement is to operate from a date earlier than the date of registration then upon registration by the QPIR the written agreement will have effect for all purposes of this Award as and from that earlier nominated date. Any such date cannot be earlier than 1 January 2010.

E.3.5 South Australia

(a) An employer cited in clause E.1.1(b) will, for each employee cited in clause E.1.1(b), send one copy of the written agreement to the Real Estate Employers’ Federation of South Australia and the Northern Territory, REI House, 249 Greenhill Road, Dulwich SA 5065, and one copy of the same agreement to the Real Estate Salespersons’ Association, PO Box 678, St Agnes SA 5097.

(b) An administration fee as specified in clause E.3.6(a) is payable as follows:

(i) one half to Real Estate Employers’ Federation of South Australia and the Northern Territory (REEF SA/NT); and

(ii) one half to Real Estate Salespersons’ Association (RESA). This fee may be recovered by the employer from the employee’s commission, incentive payment or bonus.

E.3.6 Administration

(a) Each written agreement submitted for registration in accordance with clause E.3.1 is to be accompanied by an administration fee, as set by the entity(s) with which the written agreement is to be registered.

(b) The administration fee payable under clause E.3.6(a) may not exceed $150.00 (as adjusted annually from the index figure published by the Australian Bureau of Statistics for the All Groups Consumer Price Index (Cat No. 6401.0)) per agreement.

(c) The entity(s) with which the written agreement is to be registered may:

(i) agree to a lesser administration fee than that specified in clause E.3.6(b); and

(ii) create and provide an Application to Register Written Agreement pro-forma, to facilitate the agreement registration process.

E.4 Cease to operate
Schedule E ceases to operate on 31 December 2014.’

[125] Schedule E was included in the REI Award by agreement between the parties during the course of the award modernisation process conducted in 2009. As can be seen, Schedule E will cease to operate on 31 December 2014. That is because any further operation of the Schedule beyond that date would contravene s.154, which prohibits State-based difference terms in any modern award beyond a period of five years after the modern award came into operation (noting that the REI Award came into effect on 1 January 2010).

Australian Property Services Association’s application

[126] The Australian Property Services Association (APSA) is an organisation registered under the Fair Work (Registered Organisations) Act 2009. It proposed that Schedule E be replaced with a new set of provisions concerning the registration of written agreements for commission-only payment arrangements as follows:

‘Schedule E—Registration of Written Agreements for Commission-only Employees
E.1 Application of Schedule E
E.1.1 This Schedule applies to all employers and those employees who are employed under a “Commission-only” arrangement that has been entered into on or after the date of commencement of this Schedule.
E.2 Requirement to register written agreements
E.2.1 If a written agreement is required to be made between an employer and employee under Clause 16(2)(a) of this Award, that agreement must be registered in accordance with this Schedule.
E.2.2 If there is a variation to such a written agreement required under Clause 16(2)(a) and the variation applies to the calculation or payment of commission then that variation must be registered in accordance with this Schedule.
E.3 Registration Process
E.3.1 The Australian Property Sector Registry will be used to facilitate the registration of written agreements. The Registry will be operated by the Australian Property Services Association (“APSA”).
E.3.2 The employer will, for each employee, lodge one copy of the original written agreement with the APSA for registration.
E.3.3 Each written agreement or variation to a written agreement submitted for registration is to be accompanied by an administration fee. Registration can only occur after the administration fee has been paid.
E.3.4 The administration fee payable:

(a) may not exceed $77 per agreement to be registered (as adjusted annually from the index figure published by the Australian Bureau of Statistics for the All Groups Consumer Price Index (Cat No. 6401.0))

(b) may not exceed $20 for the registration of variations to any agreement that has been registered in accordance with Clause E.2.2 (as adjusted annually from the index figure published by the Australian Bureau of Statistics for the All Groups Consumer Price Index (Cat No. 6401.0))

E.3.5 A written agreement made in accordance with this Award:

(a) may only operate once it has been registered, except as provided for under Clause E3.5(b); or

(b) once registered, may be deemed to have operated from a date prior to its registration with APSA, provided that the earlier operative date is

(i) included in the written agreement; and

(ii) the employee is still employed by the employer at the time of registration or, in the event that the employee’s employment with the employer ceased prior to the time of registration, that it ceased no more than 2 months prior to the time of registration

E.3.6 Except as provided by Clause E3.5(b), until a written agreement is registered:

(a) A person cannot be a commission-only employee; and

(b) The employer must pay, on a weekly basis, in addition to any commission, bonus or incentive payment earned, not less than the minimum weekly wage as set out in this Award.

E.3.7 Any written agreement that had been registered in accordance with the provisions contained in this Award prior to 31 December 2014 is deemed to be registered in accordance with this Award,
E.3.8 The APSA may create, provide and require the employer and employee to use Application to Register Written Agreement pro forma(s), to facilitate the agreement registration process.
E.3.9 Parties to any registered written agreement may obtain a copy of that agreement on application to APSA.
E.3.10 Further information about agreement registration will be as published on the APSA web site.’

[127] APSA’s application was supported by the Real Estate Salespersons’ Association, the Queensland Real Estate Industrial Organisation of Employers, and the Real Estate Employers’ Federation.

[128] APSA adduced evidence from Mr Thomas Clark French, the Vice-President of the Queensland Branch of APSA, Ms Virginia Germain, the Senior Registry Officer of the Queensland Property Industry Registry, and Mr Henry Lewocki, Senior Industrial Officer of APSA in support of the application.

[129] APSA submitted that:

• there was jurisdiction to make the award variation proposed, either under s.139(1)(a) of the Act as a provision about minimum wages or under s.142 as a provision incidental to clauses 15 and 16 of the Award and essential for the purpose of making those clauses operate in a practical way or as a machinery term;



• the unique nature of the real estate industry, in which the majority of employees were paid by commission, justified the retention of an agreement registration system;



• the proposed new Schedule E built upon a considerable industrial history of the registration of written agreements and reflected requirements which covered a majority of employees in the Australian real estate industry;



• the proposed system would provide assistance to both employers and employees in that it provided for scrutiny of commission payment agreements prior to registration so that errors and anomalies could be identified and rectified;



• the proposed system would also provide employers and employees with convenient access to agreements which had been lost or mislaid; and



• registration of agreements reduced complaints of non-compliance with the REI Award.

Opposition to the application

[130] APSA’s application was opposed by the Real Estate Institute of Victoria, the Real Estate Employers’ Federation of Western Australia (REEFWA) and the Real Estate Employers’ Federation of South Australia and the Northern Territory (REEFSANT). Evidence was adduced in opposition to the application from Mr Hayden Groves, the President of the REEFWA, Donovan Tepper, CEO of the REEFSANT, and Ms Sascha Cook, the Principal Advisor of the Service Industry Advisory Group Pty Ltd.

[131] The organisations opposing APSA’s application submitted that:

● the Commission does not have jurisdiction to make the award term proposed because it is not about a matter listed in s.139 of the Act, it is not essential for the purpose of making a particular term operate in a particular way under s.142(1)(b), and it is not a machinery term under s.142(2);

● the proposed term is not one that may be included in a modern award under s.138 because it is not necessary to achieve the modern awards objective or the minimum wage objective;

● the proposed variation would constitute a significant change to the REI Award because it would apply for the first time in three States and two Territories a registration and fee payment system which had never previously existed in any form in those jurisdictions, with concomitant administrative and financial burdens and exposure in the case of breach to pecuniary penalties;

● because it constituted a significant change, APSA bore the onus to demonstrate by probative evidence that the proposed provision was necessary, and it had not done so; and

● there was no evidence that in the States and Territories which had not previously been subject to an agreement registration system there was any history of widespread disputes, problems or litigation such as to make the imposition of such a system necessary.

Consideration

[132] We are not satisfied that the inclusion of the provision proposed by APSA is necessary in order to achieve either the modern awards objective in s.134 or the minimum wages objective in s.284.

[133] APSA has not, in its evidentiary case, succeeded in demonstrating that an Australia-wide regime of agreement registration must be established in order to “provide a fair and relevant minimum safety net of terms and conditions” (s.134(1)) or to provide “a safety net of fair minimum wages” (s.284(1)).

[134] The REI Award operates on the basis that, in terms of remuneration, the safety net may consist of prescribed minimum wage rates, the same prescribed minimum wage rates plus incentive payments, or commission-only payment systems, provided that in respect of the latter two alternatives there must be written agreements complying with the requirements of clauses 15 and 16 respectively.

[135] The lack of any evidence demonstrating a failure by the REI Award to provide a proper and fair remuneration safety net in those States and Territories which have never had any agreement registration scheme makes it impossible, we consider, to conclude that APSA’s proposed provision is necessary to achieve the modern awards objective or the minimum wages objective. In addition, we consider that the extension of the existing consensual scheme to non-consenting parties, the burden of the obligations involved, the proposed monopoly provider of the registration service and the proposed amount of the registration fee are likely to be contrary to the modern awards objective taking into account the matters identified in paragraphs (d), (f) and (g) of s.134(1). That means that the provision proposed by APSA may not be included in the REI Award. Having reached that conclusion, it is unnecessary for us to consider the arguments concerning ss.139 and 142 of the FW Act.

[136] Our conclusion does not of course mean that the current registration arrangements in New South Wales, Queensland and South Australia may not continue on a private and consensual basis. However after 31 December 2014 they will no longer operate by force of the REI Award.

[137] We note that in the course of the hearing of this matter, some issues were raised concerning the question of the enforceability of written agreements entered into pursuant to clauses 15 or 16 of the REI Award - in particular whether any failure to comply with such agreements constitutes a breach of the REI Award. On one view, clause 21.1(c) requires an employer to pay any amounts payable to an employee under an agreement entered into pursuant to clauses 15 or 16 within 14 days (subject to the stated condition concerning clearance of funds), such that any failure to pay within this time period might make the employer liable to the imposition of a pecuniary penalty under Part 4-1 of the FW Act. However we make that tentative observation not having yet received proper submissions on the issue. We expect that this issue will require further attention when the REI Award is fully reviewed in Stage 3 of the Review.

5. Review of Group 1A and 1B Awards

[138] The Award stage deals with the review of award specific issues in the 122 modern awards. 35 On 16 June 2014 a Guide to the Award Stage was published on the Commission website outlining the process and an ‘Exemplar award’, based on the Security Services Industry Award 2010 was also published in final form. This exemplar award seeks to address some of the structural issues identified in modern awards and the proposed format is intended to make modern awards simpler and easier to understand.

[139] The modern awards have been divided into four groups 36 and proceedings in relation to the first group of awards commenced with an initial conference on 13 May 2014. The Group 1 awards were further divided into five sub-groups which were dealt with in two tranches – Groups 1A and 1B; and Groups 1C, 1D and 1E. This decision deals with the Group 1A and 1B awards (see Attachment B for a list of the modern awards in Group 1, by sub-group).

[140] The Commission has published exposure drafts for each of the Group 1 awards. These exposure drafts incorporate any technical and drafting changes proposed by the Commission and identify provisions that may need further review. The exposure drafts are not intended to incorporate any substantive changes and do not represent the concluded view of the Commission on any issue. A comparison document was published with each exposure draft, providing a direct comparison of each clause in the current modern award with the corresponding clause in the exposure draft. Interested parties have been given an opportunity to make written submissions and submissions in reply in relation to the exposure drafts and proposals for variation in respect of each of the modern awards in Group 1. Hearings in respect of the Group 1A and 1B awards were held on 23 and 24 October 2014.

[141] A number of conferences were held in November and December before single members of the Full Bench to deal with award-specific matters after which the Members reported back to the Full Bench. During the process a number of issues were resolved or withdrawn and a relatively limited number of claims were pressed.

[142] Due to the complexity of issues identified in respect of some of the awards, it was decided that the substantive issues in seven awards would be dealt with by separate Full Benches. The details in respect of these matters are set out in a Statement issued on 13 August 2014 37 and directions issued on 18 November 2014.

[143] Before turning to deal with each of the awards in Group 1A and 1B we propose to make some brief observations about the legislative context for the Review. We note that these issues are canvassed in more detail in the Preliminary Jurisdictional Issues decision of 17 March 2014. 38

[144] Subsection 156(2) deals with what has to be done in a Review.

[145] The FW Act provides that the Commission must conduct a 4 yearly review of modern awards (s.156(1)). Sub-section 156(2) deals with what has to be done in a Review:

‘(2) In a 4 yearly review of modern awards, the FWC:

(a) must review all modern awards; and
(b) may make:

(i) one or more determinations varying modern awards; and
(ii) one or more modern awards; and
(iii) one or more determinations revoking modern awards.

(c) must not review, or make a determination to vary, a default fund term of a modern award.

Note 1: Special criteria apply to changing coverage of modern awards or revoking modern awards (see sections 163 and 164).
Note 2: For reviews of default fund terms of modern awards, see Division 4A.’

[146] Sub-sections 156(3) and (4) deal with the variation of modern award minimum wages in a Review:

‘(3) In a 4 yearly review of modern awards, the FWC may make a determination varying modern award minimum wages only if the FWC is satisfied that the variation of modern award minimum wages is justified by work value reasons.
(4) Work value reasons are reasons justifying the amount that employees should be paid for doing a particular kind of work, being reasons related to any of the following:

(a) the nature of the work;
(b) the level of skill or responsibility involved in doing the work;
(c) the conditions under which the work is done.’

[147] Sub-section 156(5) provides that in a Review each modern award is reviewed in its own right, however, this does not prevent the Commission from reviewing 2 or more modern awards at the same time.

[148] The modern awards objective is set out in s.134 of the FW Act. It states:

‘134 The modern awards objective
What is the modern awards objective?
(1) The FWC must ensure that modern awards, together with the National Employment Standards, provide a fair and relevant minimum safety net of terms and conditions, taking into account:

(a) relative living standards and the needs of the low paid; and
(b) the need to encourage collective bargaining; and
(c) the need to promote social inclusion through increased workforce participation; and
(d) the need to promote flexible modern work practices and the efficient and productive performance of work; and
(da) the need to provide additional remuneration for:

(i) employees working overtime; or
(ii) employees working unsocial, irregular or unpredictable hours; or
(iii) employees working on weekends or public holidays; or
(iv) employees working shifts; and

(e) the principle of equal remuneration for work of equal or comparable value; and
(f) the likely impact of any exercise of modern award powers on business, including on productivity, employment costs and the regulatory burden; and
(g) the need to ensure a simple, easy to understand, stable and sustainable modern award system for Australia that avoids unnecessary overlap of modern awards; and
(h) the likely impact of any exercise of modern award powers on employment growth, inflation and the sustainability, performance and competitiveness of the national economy.

This is the modern awards objective.

When does the modern awards objective apply?

(2) The modern awards objective applies to the performance or exercise of the FWC’s modern award powers, which are:

(a) the FWC’s functions or powers under this Part; and
(b) the FWC’s functions or powers under Part 2-6, so far as they relate to modern award minimum wages.

Note: The FWC must also take into account the objects of this Act and any other applicable provisions. For example, if the FWC is setting, varying or revoking modern award minimum wages, the minimum wages objective also applies (see section 284).’

[149] The modern awards objective applies to the performance or exercise of the Commission’s ‘modern award powers’, which are defined to include the Commission’s functions or powers under Part 2-3 of the FW Act. The Review function in s.156 is in Part 2-3 of the FW Act and so will involve the performance or exercise of the Commission’s ‘modern award powers’. It follows that the modern awards objective applies to the Review.

[150] No particular primacy is attached to any of the s.134 considerations and not all of the matters identified will necessarily be relevant in the context of a particular proposal to vary a modern award.

[151] The Commission is obliged to ensure that modern awards, together with the NES, provide a fair and relevant minimum safety net taking into account, among other things, the need to ensure a ‘stable’ modern award system (s.134(1)(g)). The need for a ‘stable’ modern award system suggests that a party seeking to vary a modern award in the context of the Review must advance a merit argument in support of the proposed variation. The extent of such an argument will depend on the circumstances. Some proposed changes may be self evident and can be determined with little formality. However, where a significant change is proposed it must be supported by a submission which addresses the relevant legislative provisions and be accompanied by probative evidence properly directed to demonstrating the facts supporting the proposed variation.

[152] We now turn to deal with each of the awards in Groups 1A and 1B.

5.1 Aluminium Industry Award 2010 (AM2014/64)

[153] A revised exposure draft was published on 11 September 2014, and republished 9 October 2014, to remove some identified errors.

[154] A conference of interested parties was held on 11 November 2014, before a single member to identify areas of agreement/disagreement between the parties. A number of minor technical clarifications were agreed in respect of clauses 8.4(a)(iv) and 9.4(d). These changes assist in clarifying the respective provisions and will be included in a further revised exposure draft.

[155] The exposure draft posed the question whether the flat dollar shift penalty loading calculated on the Aluminium Worker Grade 4 minimum wage should be converted to a penalty based on an employee’s ordinary wage. The continued use of a flat dollar allowance rather than a conversion to a penalty based on an employee’s ordinary hourly rate is supported by the Ai Group. The Australian Workers’ Union (AWU) submits that the rates must be converted to penalties based on an employee’s ordinary hourly wage. The employer submission is that such a conversion would most likely increase costs for employers, if not immediately, then over time. We are not persuaded that a cogent argument has been made to change the existing provision and accordingly no change will be made.

[156] In respect of the casual loading, the exposure draft states that casuals are to receive a loading of 25% “of the ordinary hourly rate” whereas the current award refers to the loading being calculated on the basis of “1/38th of the relevant minimum weekly wage”. There was no agreement in respect of this issue and it will be referred to the Casual and Part-time Employment Full Bench for determination.

5.2 Ambulance and Patient Transport Industry Award 2010 (AM2014/65)

[157] A revised exposure draft was published on 6 November 2014 and interested parties were given an opportunity to make submissions. The Commission convened a conference of interested parties on 13 November 2014. Transcript of the conference is available on the Commission’s website. A number of minor technical amendments were addressed during the course of the conference. Three substantive issues require determination:

• whether overtime performed on each day stands alone;



• whether a training plan provision should be included in the award; and



• whether a number of additional occupations should be included in clause 10.2, Operational classification of the exposure draft.

[158] As to the first matter there was general agreement that the exposure draft be varied to clarify that overtime performed on each day should stand alone. The variation proposed is consistent with principle and with the provisions of the relevant predecessor awards. We will make the variation proposed.

[159] The second matter is a proposal by the Health Services Union (the HSU) to include a ‘training plan’ provision in the award, in the following terms:

‘(a) After six months of engagement with an employer, or on an annual basis, the employee may request that a training plan be devised. The training plan must address areas in which the employee’s skills can be maintained and developed.

(b) The training plan will be developed within sixty days of the employee’s request in consultation with the employee. The training plan will:

(i) identify realistic training opportunities to maintain the employee’s skills
(ii) identify training opportunities to enhance the employee’s work related skills
(iii) identify training opportunities to enhance multiskilling
(iv) relate to the nature of the employer’s business
(v) relate to the ongoing registration requirements of employees
(vi) identify specific skill sets and training needed by the employee to attain qualifications relevant to promotion within the classification structure of this Award

(c) The training plan will, where appropriate, provide for nationally recognised training that is drawn from Industry Skills Council Training Packages or a higher education institution.
(d) Training, for the purposes of this clause, will be delivered by accredited training providers.

(e) Once a training plan has been devised, an employee can request, annually, that the training plan be revised and updated.

(f) In this clause:

(i) a skill set is either a single unit of competence or a combination of units of competence which link to a license or regulatory requirement, or defined industry need. Skill sets complement full qualifications within the Australian Qualifications Framework (AQF);
(ii) skill sets provide formal recognition of training for a discrete part of a qualification linked to a function or role within an occupation.
(iii) Training Packages provide rules when a skill set can be gained and used within industry; and
(iv) for the purposes of this Award, the term ‘skill set’ refers exclusively to those contained in Industry Skills Council Training Packages and delivered by an accredited training provider.’

[160] The HSU contends that the omission of such a provision when the award was made was an error and that the provision of training and training plans were a feature of a number of pre-reform awards.

[161] This proposal 39 was strongly opposed by St John Ambulance WA and Ai Group. St John made detailed submissions and provided a witness statement outlining the administrative burden that would result from such a change.

[162] We are not persuaded that a cogent argument has been made for the inclusion of the provision sought and do not propose to vary the award in the manner proposed.

[163] The final matter concerns a proposal by St John Ambulance NT for the inclusion of a number of additional employee classifications in the award, namely:

(a) Intensive Care Paramedic
(b) Clinical Support Officer
(c) Duty Team Manager
(d) Communications Officer
(e) Communications Dispatcher
(f) Graduate Intern Paramedic

[164] In a Review the Commission may only make a determination varying modern award minimum wages if it is satisfied that the variation is justified by work value reasons (s.156(3)). Any proposed variation of modern award minimum wages must be accompanied by submissions and evidence establishing the work value reasons justifying the variation.

[165] Very little detail accompanied the proposal. No classification definitions or rates of pay were proposed. In these circumstances we are not persuaded to vary the award in the manner proposed.

5.3 Asphalt Industry Award 2010 (AM2014/66)

[166] On 9 October 2014, a revised exposure draft of the Asphalt Industry Award 2014 was published. On 11 November 2014, interested parties attended a Commission convened conference to discuss further the position of each respective party. It was agreed that the reference to “duties” in clause 10.3—Higher duties will be replaced with the word “work” to make clear that not all the duties of a higher classification level, but rather the work of higher level must be undertaken. The clause will read:

‘An employee required by the employer to perform the work of a position at a higher classification level must be paid at the rate applicable for that higher level for all work done on that day/shift.’

[167] In respect of overtime, the exposure draft will be varied to reflect the agreed position reached between the parties. The wording contained in the Commission’s Draft Determination of 17 July 2014 40 will be inserted in the exposure draft.

[168] The parties also agreed to a number of other changes to the exposure draft - these will all be incorporated into a revised exposure draft.

[169] There was disagreement between the parties as to whether the minimum hourly rate for casuals includes the industry allowance. The AWU submitted as a general proposition the casual loading is calculated on the “ordinary hourly rate” which includes the industry allowance which is “payable for all purposes” as per clause 11.1(b). The employers submitted that the exposure draft provision should remain unaltered where the casual loading is calculated on the minimum hourly rate. This issue will be referred to the Casual and Part-time Employment Full Bench for determination.

[170] The Asphalt Industry Award 2010 contains a Casual Conversion clause which states that disputes about the arrangements applying to conversion from casual to full- or part-time employment will be processed through the dispute resolution procedure. The exposure draft inserts the words “or the availability of a position” as also being subject to the dispute resolution procedure. The employer position is that this insertion expands the subject matter that the disputes procedure can deal with. The AWU submits that the dispute resolution provision already enables a dispute over the availability to be dealt with under the procedure. The wording of clause 23—Dispute resolution refers to “a dispute about a matter under this award” and “a matter arising under this award”. In our view a dispute concerning the “the availability of a position” is currently able to be dealt with under the existing dispute resolution clause and the insertion of the additional words are for clarification purposes only and do not extend the matters capable of being dealt with under the dispute resolution clause.

[171] All parties agree that clause 14.5—Rest Period after overtime in the exposure draft could be read not to apply to day workers due to use of the word “shift” in the provision. However, there is disagreement on how the clause should be rewritten. The AWU submitted that the employer wording contains a conflict with the use of “must” have 10 consecutive hours off duty while specifying a penalty rate when this does not occur. We will adopt the AWU proposal which includes the words “subject to this subclause” . These words are contained in the existing award.

5.4 Cement and Lime Award 2010 (AM2014/68) and Quarrying Award 2010 (AM2014/86)

[172] A revised exposure draft which amalgamated these two awards into a single Cement, Lime and Quarrying Award 2014 was published on 9 October 2014. Interested parties had previously filed submissions concerning earlier exposure drafts for the proposed amalgamated award, and were given the opportunity to make further submissions concerning the revised exposure draft. These submissions raised a range of issues which were primarily of a technical or drafting nature.

[173] The Commission convened a conference of interested parties on 4 December 2014. The technical and drafting issues were addressed at that conference, and necessary amendments will be reflected in a further revised exposure draft to be published.

[174] There were two substantive issues concerning casual employees which were raised in the submissions. The first concerned the identification of award entitlements to which casual employees are not entitled and in substitution for which the casual loading is payable. We have already dealt with this issue on a general basis at paragraph [71] of this decision. The second concerned whether the casual loading is payable in addition to overtime penalty rates when a casual employee performs overtime work and whether the overtime rates schedules in the award should contain a separate column for casual employees which included the casual loading. The second matter will be referred to the Casual and Part-time Employment Full Bench. 41

[175] In relation to clause 9.7(c) of the exposure draft, which provides for a penalty rate to be paid when an employee is instructed to resume work within ten hours after working overtime, the AWU expressed a concern that the provision did not make it clear that the employee remained entitled to have a ten hour break after the completion of the resumed work without loss of ordinary pay for ordinary working time occurring during such absence. The AWU submitted that in this respect the provision was different to the equivalent provisions in the existing Cement and Lime Award 2010 and the Quarrying Award 2010. We accept this submission, and clause 9.7(c) of the exposure draft will be amended appropriately.

[176] Ai Group submitted that clause 11.3(n) of the exposure draft, which provides for rates of pay for travelling time, incorrectly refers to “ordinary rates”, when it should refer to “minimum rates of pay”. We reject this submission. The ordinary rates set out in Schedule A include the all purpose industry disability allowances. That is the applicable rate for travelling time purposes.

[177] ABI and the NSW Business Chamber raised an issue concerning a leading hand allowance in clause 11.2(c) of the exposure draft and an associated definition in Schedule I. Clause 11.2(c) provides (with relevant words italicised):

(c) Leading hand allowance
A leading hand allowance is payable to an employee performing work as a leading hand (as defined) or who is in charge of the plant and is paid for all purposes:

Industry	In charge of	$ per week
Cement and lime industry	1 to 5 employees	28.99
	6 to 16 employees	41.67
	17 or more employees	54.35
Quarrying industry	1 or 2 employees	15.79
	3 to 6 employees	22.02
	6 to 10 employees	27.38
	More than 10 employees	43.46
	Plant	15.79

[178] Schedule I—Definitions of the exposure draft then contains a definition of “employee in charge of plant” as follows:

‘employee in charge of plant means:

(a) when two or more employees are employed on a unit of the plant at one time, the employee who is entrusted with supervision and responsibility; or

(b) an employee entrusted with supervision and responsibility; or

(c) when the employee is the only person of the employee’s class employed on the plant who does the general repair work of the plant in addition to the work of operating, but not when the employee merely assists a fitter or engineer to do the work.’

[179] Australian Business Industrial (ABI) and the NSW Business Chamber contrasted these proposed provisions in the exposure draft to the equivalent definition in clause 3 of the current Quarrying Award 2010 which provides:

‘employee in charge of processing plant means:

(a) when two or more employees are employed at the plant at one time, the employee who is invested with the superintendence and responsibility; or

(b) an employee vested with superintendence and responsibility; or

(c) when the employee is the only person of the employee’s class employed on the plant, the employee who does the general repair work of the plant in addition to the work of operating, but not merely assists a fitter or engineer to do the work.’

[180] They submitted that the omission of the word “processing” in the definition in Schedule I of the exposure draft had the effect of expanding the operation of the leading hand allowance to a person in charge of any item of plant, whereas the existing allowance applied only to a person in charge of the processing plant.

[181] We accept this submission. We consider that the existing definition, and the use of the expression “the plant” in the leading hand allowance provision, make it clear that the allowance was only ever intended to apply to a leading hand in charge of the processing plant. The exposure draft will be amended to restore the existing definition in Schedule I, and to make it clear in clause 11.2(c) that the plant being referred to is the processing plant.

[182] Clause 13.2(b) of the exposure draft had added a definition of “permanent night shift” to aid clarity to the provisions concerning shift penalty rates. Although the current awards provide a penalty rate for permanent night shifts, what constituted a permanent night shift was not defined. Some parties expressed reservations about the inclusion of this definition, but no party was able to identify any actual change that the new definition would effect in a practical sense to the existing basis upon which employers pay the permanent night shift penalty. ABI made a late and brief submission in which it asserted that the definition “does not necessarily accord” with current employer practice, but that submission does not take the matter any further. The proposed definition will remain in the exposure draft.

[183] Clause 14.1 of the exposure draft concerns overtime entitlements. It does not make any specific provision in respect of casual employees. No party suggested that casual employees were not entitled to overtime. The AWU proposed provisions which specifically deal with casual employees’ entitlement to overtime. ABI and the NSW Business Chamber agreed with these proposed provision. The Ai Group opposed them on the basis that they did not take into account that a casual employee may work on a system of hours which averages 38 per week in accordance with clause 8. The AWU’s provisions will be included in the revised exposure draft but with an amendment to take into account Ai Group’s point.

[184] The AWU submitted that clause 15.2(b) of the exposure draft, which concerns the annual leave entitlements for employees who work part of a year as a shiftworker (as defined), is inconsistent with the NES. We agree. The provision shall be redrafted to reflect the drafting of the equivalent provisions in the current awards.

[185] The AWU further submitted that clause 15.4 of the exposure draft, which concerns annual leave during close-downs, was differently drafted to the equivalent provisions in the existing awards and had potentially changed their effect. The provision will be re-drafted to reflect the existing provisions, except the words “amongst others” will be deleted because they are unnecessary.

5.5 Cleaning Services Award 2010 (AM2014/69)

[186] A revised exposure draft was published on 9 October 2014 and further submissions invited from interested parties. A conference was held before Commissioner Bissett on 6 November 2014.

[187] The Building Service Contractors Association of Australia (BSCCA) has proposed that clause 8.3(b) of the award, which deals with rostering, be modified to provide the following:

‘Subject to Clause 22.2 the roster will not be altered without giving one week’s notice except in the case of emergency or by agreement between the employer and employee. Should either contingency occur, the agreement will be recorded in the employee’s time and wages time and wages records and the conditions of Clause 14.1 will apply.’

[188] This proposal reflects that part-time employees under the award already receive a 15 per cent loading. According to the BSCCA:

‘The justification of the 15% part time allowance is to allow employees to be rostered up to 7.6hrs/day or 38hrs/week. In practical terms no employer would do so as it is too expensive so the sticking point is the overtime requirement for additional hours outside the roster which amount to a penalty on a penalty. In almost every case, the request for a part time employee to work additional hours occurs to cover the incidental absence of someone on site on a particular shift.’ 42

[189] United Voice has indicated that it agrees to the proposed change, which generally reflects the status quo. We will make the change to the exposure draft as proposed by BSCAA.

[190] A number of issues remain outstanding in relation to this award. The parties have asked that a further conciliation process occur before Commissioner Cribb to see if agreement can be reached in relation to these issues and we agree with that course.

5.6 Concrete Products Award 2010 (AM2014/70)

[191] A republished exposure draft was issued on 9 October 2014. A number of interested parties attended a Commission convened conference on 11 November 2014.

[192] The AWU proposed that clause 13.2(d) of the exposure draft be varied as follows “Subject to compliance with clause 8.3(a), a shift will consist of not more than 10 hours inclusive of crib breaks”. There was no opposition to this proposal and we will make the change sought.

[193] The exposure draft defines casual employees amongst other criteria as an employee “whose employment is to continue beyond the period of six months”. Ai Group submit that this wording expands the definition of a casual employee and request that the current award wording be retained. The current award wording will be reinserted in the exposure draft to avoid any potential variation to the definition of a casual employee. The third dot point in clause 6.6(a)(i) will read “whose employment is to continue beyond the conversion process”.

[194] The AWU have submitted that the Paid rest break clause in the exposure draft does not reflect the entitlement to an initial 7.5 minute rest break in the current award, we agree. The exposure draft limits the initial rest break to where an employee is required to work more than six hours per day. The exposure draft will be amended to place the six hour working requirement on the second 7.5 minute rest break only.

[195] The parties were in disagreement in respect of payment for non-continuous shiftworkers who work on Sundays and Public Holidays. The employers’ position was that non-continuous shiftworkers receive their ordinary rates for working Sundays and Public Holidays. This issue was referred to a Full Bench in the President’s amended directions of 18 November 2014.

5.7 Cotton Ginning Award 2010 (AM2014/71)

[196] A revised exposure draft was published on 9 October 2014 and interested parties were invited to make submissions. A conference of interested parties was convened by the Commission on 6 November 2014 and a number of proposed variations to the exposure draft were discussed and agreed between the parties. These are essentially technical amendments designed to clarify the operation of the award. We will make the variations proposed.

[197] Three issues remain in dispute and require determination:

(i) The application of the all purpose allowance;
(ii) Payment to casual employees working on a public holiday; and
(iii) Special contingency payments.

[198] As to the application of all purpose allowances we have already dealt with this issue on a general basis. Interested parties will have an opportunity to make submissions regarding what constitutes the base rate of pay in this award, for the purpose of the NES.

[199] With regard to payment of casuals the AWU contends that the current provision in the award whereby public holiday penalty rates do not apply to casuals is an error that does not properly reflect the antecedent Notional Agreement Preserving State Award (NAPSA). This issue will be the subject of further consideration at the hearing on 24 and 25 March 2015. Any submissions in relation to this issue should be filed by no later than 4pm on 13 February 2015.

[200] Finally the parties are in dispute as to whether casual employees are entitled to the special contingency payment (district/remote allowance) under the award.

[201] The issue of district allowances is currently being considered by the Full Bench considering transitional provisions (AM2014/190). We will refer this issue of whether the award should continue to provide for special contingency payments, and if so, how they should operate, to that Full Bench, for determination.

5.8 Premixed Concrete Award 2010 (AM2014/83)

[202] A republished exposure draft was issued on 9 October 2014. A Commission convened conference was held on 11 November for interested parties. A number of technical amendments were agreed at the conference and will be incorporated into the revised exposure draft. 43

[203] The parties also agreed that for the purposes of the additional week’s annual leave the words used in clause 24.2 of the current award should continue to be used. Clause 15.2—Additional leave for shiftworkers will be amended to replace the word “employee” with “shiftworker” to avoid the potential of expanding the entitlement.

[204] The AWU proposed that the words “recalled to stand by” should read “required to stand by” as recall and stand-by are separate concepts and clause 23.5(a) of the current award separates the two concepts. We agree and will make the change sought.

[205] While the intent of clause 6.4(e) is accepted by all parties, the actual wording remained in dispute. We are of the view that the reference to “shift” should be amended to read “rostered day/shift”, as proposed by the employers.

[206] ABI noted that clause 9—Breaks of the exposure draft has conflated meal breaks and rest breaks whereas they appear as separate clauses in the current award. While a consolidated clause relating to rest and meal breaks is contained in a number of exposure drafts, ABI notes that this hasn’t occurred in the Concrete Products Award 2014 exposure draft. Maintaining two separate clauses produces some unnecessary duplication. ABI stated that having two separate clauses provides greater clarity but did not point to any confusion emanating from the exposure draft. We do not propose to vary the exposure draft. Any further submissions in respect of this issue may be made in the context of submissions filed in response to the revised exposure draft to be released in January 2015.

[207] ABI submitted the current wording in the exposure draft at clause 14.4—Minimum break between shifts—employees other than shiftworkers, suggests that an employee must have a 10 hour break after the completion of ordinary hours whereas the current award only applies this obligation where overtime is worked. We will reinsert the reference to overtime as expressed in the current award as the exposure draft.

5.9 Salt Industry Award 2010 (AM2014/88)

[208] The exposure draft published on 11 September 2014 was republished on 9 October 2014 with some corrections.

[209] The Commission convened a conference of interested parties on 11 November 2014.

[210] A number of minor, technical amendments will be made to the exposure draft:

(i) Clause 10.5(a)(iv) will be amended to read “Clause 15.8—Annual leave loading” which is wording consistent with the current award. All parties agreed to this change.
(ii) As all employees are entitled to the all purpose industry allowance the words “who is entitled to the allowance” will be removed from clause 11.3(a)—All purpose allowances, as all employees are entitled to the industry allowance.
(iii) The current Salt Industry Award 2010 at clause 25.3—Payment for annual leave provides that employees are to receive allowances paid for all purposes when proceeding on annual leave. The exposure draft will be amended to restrict allowances paid on annual leave to all purpose allowances only.
(iv) Clause 18.3 will be amended to also include reference to clause 13.3—Public holidays and read “Where an employee works on a public holiday they will be paid in accordance with clause 13.3 – Public Holidays and clause 14 – Overtime.”
(v) Clause 18.4—Substitution of public holidays by agreement will be varied to also allow for substitution of a half day which is provided for at clause 28.2 of the current award.
(vi) The typographical error in the definition of “all purposes” in Schedule H—Definitions will be corrected by inserting the word “are” after the word “they”.

[211] The employers submitted that the exposure draft provision should state that the casual loading is calculated on the minimum hourly rate as contained in the current award at clause 10.3(b). The AWU submitted as a general proposition that the casual loading is calculated on the “ordinary hourly rate” as reflected in the exposure draft. This Bench has already determined this issue and will apply the outcome consistently across modern awards. This issue is to be referred to the Casual and Part-time Employment Full Bench.

[212] The exposure draft at clause 13—Penalty rates and clause 14—Overtime provide that penalty rates and overtime are to be calculated on the “ordinary hourly rate of pay”. The existing award refers to the “ordinary hourly base rate of pay”. The employers submitted that this wording change will increase the amount payable under these clauses. As there is no intention to alter the penalty or overtime rate calculations in the current award, the exposure draft will be amended to refer to the ordinary hourly base rate of pay when calculating the rates payable. On this basis the rates in Schedule B will also need to be amended.

[213] The exposure draft raises as a question whether overtime payments should continue to state they are in substitution for any other loadings. As no agreement could be reached on this question the exposure draft will reflect the existing award provision at clause 23.3 which states that overtime is in substitution of other loadings or penalty rates.

5.10 Security Services Industry Award 2010 (AM2014/89)

[214] A revised exposure draft was published on 9 October 2014, and interested parties were given an opportunity to make submissions concerning it. A conference in relation to this award was convened on 5 December 2014. A number of technical and drafting issues were addressed during this conference, and amendments concerning these issues will appear in a further exposure draft to be published.

[215] A number of contested substantive issues in relation to this award, including a proposal advanced by MSS Security to expand the award’s coverage, have already been referred to a separate Full Bench. 44 Some further issues of a substantive nature concerning the coverage of this award have been raised in the submissions of the interested parties as follows:

(i) The Ai Group seeks the restoration of clause 4.3 of the existing award, which was omitted from the exposure draft and provides as follows:

‘To avoid doubt, this award does not apply to an employer merely because that employer, as an incidental part of a business that is covered by another modern award, has employees who perform functions referred to in clause 4.2.’

The Ai Group submitted that clause 3.3 of the exposure draft, which replaced clause 4.3, had a different effect, and that the omission of clause 4.3 potentially widened the scope of the award. United Voice opposed the retention of clause 4.3.

(ii) United Voice has proposed a variation to the coverage clause which would have the effect of extending the coverage of the award to any employee who performs work covered by any of the award classifications, whether or not the employee’s employer falls within the security services industry or not, provided that the employee is not covered by another modern award containing a classification which is more appropriate to the work performed by the employee. This variation is intended to bring within the award security guards and other employees performing security work who are currently award-free. The variation is opposed by the Ai Group, ABI and the NSW Business Chamber.

(iii) The Australian Security Industry Association Ltd (ASIAL) has proposed that the coverage clause be varied to expand the award’s coverage to include the “facilities management services industry”.

[216] These proposed changes interrelate with MSS Security’s proposed change to coverage. Additionally, in order to properly be considered, these proposed changes may need to be the subject of evidence. In those circumstances, the appropriate course is to refer them for determination to the Full Bench, dealing with the substantial issues, consisting of Vice President Watson, Deputy President Kovacic and Commissioner Roe.

[217] There was an issue about clause 14.4 of the exposure draft. Clause 14 of the exposure draft concerns overtime, and clause 14.3 provides that overtime on Monday–Saturday is to be paid at the rate of 150% for the first two hours and 200% thereafter; overtime on Sunday is to be paid at the rate of 200% and overtime on public holidays is to be paid at 250%. Clause 14.4 then provides:

‘14.4 When calculating overtime each day’s work will stand alone, except where the overtime is continuous with overtime commenced on the previous day.’

[218] This provision is proposed to replace clause 23.4 of the current award, which provides:

‘23.4 Where a period of overtime commences on one day and continues into the following day, the portion of the period worked on each day attracts the loading applicable to that day.’

[219] It was submitted by Ai Group, ABI and the NSW Business Chamber, and we accept, that clause 14.4 of the exposure draft has a different effect to the current clause 23.4 in that, for a period of overtime which commences before midnight on one day and finishes after midnight on the next day, the overtime on the second day is to be remunerated as if part of the overtime for the previous day rather than being calculated afresh. This would mean, for example, that if an eight-hour overtime shift commences at 8.0 pm on Tuesday and finishes at 4.00 pm Wednesday, under clause 14.4 of the exposure draft the entire shift would be payable at the rate of 150% for the first two hours and at 200% for all the remaining hours of the shift, whereas under the award as it currently stands, the four hours on the Wednesday are payable at 150% for the first two hours and 200% for the second two hours.

[220] Ai Group, ABI and the NSW Business Chamber opposed the proposed clause 14.4 and urged the retention of the existing clause 23.4 because it had the effect explained above. However United Voice and ASIAL supported the proposed clause 14.4.

[221] We have decided that clause 14.4 of the exposure draft should be the provision to be included in the reviewed Security Services Industry Award. The current clause 23.4 produces a result whereby an overtime shift that is performed entirely on one day in the Monday–Saturday period is paid more than an overtime shift of the same length which stretches over two days of the same period. That result is anomalous and without an identifiable justification. It should be noted that under the new clause 14.4 if a second overtime shift commences later on the day that a first overtime shift that commenced the previous day was completed, the penalty rate for the first two hours of that second overtime shift will be 150%, whereas under the current clause 23.4 it would be 200%.

6. Finalising determinations

[222] New exposure drafts for each award in Group 1A and 1B will be published in January 2015. Parties are asked to provide feedback on the revised exposure drafts by 6 March 2015. Feedback should be submitted in writing to [email protected]. Oral hearings will be held on 24 and 25 March 2015.

PRESIDENT

Appearances:

J Dolan and T Clarke for the Australian Council of Trade Unions.

J Dolan for the United Firefighters Union, The Association of Professional Engineers, Scientists and Managers, Australia and the National Tertiary Education Union.

L Svendsen and M McClay for the Health Services Union of Australia.

B Ferguson, R Bhatt and G Vaccaro for the Australian Industry Group.

S Crawford and J Gherjestani for The Australian Workers’ Union.

S Taylor, A Moussa and J Moriarty for the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU).

S Maxwell, R Reid, A Borg and A Thomas for the Construction, Forestry, Mining and Energy Union.

E Cregan and K Scott for Australian Business Industrial and the New South Wales Business Chamber.

K Scott for the Australian Chamber of Commerce and Industry and Master Builders Australia Sydney.

S Forster for the Australian Federation of Employers and Industry.

D Harris and K Van Gogh for the South Australian Chamber of Commerce and Industry.

K Reid and B Pole for St John Ambulance Western Australia Ltd.

G Sealy for the Building Services Contractors Association of Australia.

M Vance, N Swancott and S Ball for United Voice.

M Travis for MSS Security.

C Delaney for the Australian Securities Association Ltd.

K Watson of counsel for the Australian Property Services Association.

R Dalton of counsel for the Real Estate Industry of Victoria.

T MacDonald for the Real Estate Employers Federation.

S Farrell for the Chamber of Commerce and Industry Western Australia and the Real Estate Employers Federation of Western Australia.

B Siebenhausen and R Milton for the Queensland Real Estate Industrial Organisation of Employers.

M Hart for the Concrete Masonry Association of Australia and Brickworks Limited.

V Wiles for the Textile Clothing and Footwear Union of Australia.

S McKinnon for the National Farmers Federation.

M Adler for the Housing Industry Association.

Hearing details:

2014.

Melbourne: (with video links to Sydney, Adelaide, Canberra, Perth and Brisbane)

October 23, 24.

November 17, 18, 19.

ATTACHMENT A—TIMETABLE

PART A—ALLEGED INCONSISTENCIES WITH NES

Categories as per Statement issued on 31 October 2014 [2014] FWCFB 7727

PART B—REVISED EXPOSURE DRAFTS FOR GROUP 1A AND 1B

ATTACHMENT B—LIST OF AWARDS BY GROUP

Attachment A to Full Bench Decision of 17 March 2014 [2014] FWCFB 1788

Group 1 (30 awards)

Group 2 (19 awards)

Group 3 (33 awards)

Group 4 (40 awards)

 1   [2014] FWC 1790.

 2   Decision of 17 March 2014 [2014] FWCFB 1788 determined the jurisdictional issues and defined the scope of the Review.

 3   For example, clause 2.1 in the Manufacturing and Associated Industries and Occupations Award 2010.

 4   Ibid, item 13.

 5   Ibid, item 2.

 6   ACTU, Further submissions of the ACTU: Stage 1 Exposure Drafts, 31 October 2014, item 6.

 7   Ai Group, Supplementary submission, 13 November 2014, items 13-16.

 8   Correspondence from Ai Group dated 24 November 2014.

 9   AMWU, Submission on Supersession Clause in Stage 1 Exposure Drafts, 31 October 2014, item 6.

 10   AMWU Submissions, 31 October 2014 at para. 9.

 11   Ai Group submission, 26 September 2014, at paras 26-28.

 12   Transcript, 23 October 2014, PN 238 - 248.

 13   Dec 2120/95 M Print M5600.

 14   Ai Group submission of 26 September 2014 at paras 9–11.

 15   Ai Group submission, 26 September 2014 at para 12.

 16   ACTU submission, 15 October 2014 at para. 22.

 17   ACTU submission, 15 October 2014 at paras 23–24.

 18   Ai Group submission, 26 September 2014, paras 43–44.

 19   Ibid, para. 45.

 20   ACTU submission, 15 October 2014, para 29.

 21   ACTU submission, 15 October 2014, para 30.

 22   Business SA submission, 26 September 2014, Page 7 and AFEI submission, 26 September 2014, para. 11.

 23   AFEI submission, 26 September 2014, para. 11.

 24   Business SA submission, 26 September 2014, p. 7.

 25   Horticulture Taskforce submission, 26 September 2014, para. 10.

 26   Ai Group submission, 26 September 2014, para. 47.

 27   See document attached to ACTU correspondence dated 19 November 2014.

 28   [2014] FWCFB 7727.

 29   [2014] FWCFB 3202.

 30   [2009] AIRCFB 989.

 31   MA000020, PR545521.

 32   [2013] FWCFB 5411.

 33   Ibid.

 34   Ibid at [279].

 35   [2014] FWCFB 3718.

 36   [2014] FWCFB 1788.

 37   [2014] FWCFB 5537 at para. [8].

 38   [2014] FWCFB 1788.

 39   United Voice and others, Parties’ draft determination, 3 July 2014 at p. 2.

 40   Report to Full Bench, 17 July 2014.

 41   See [2014] FWC 8583.

 42   BSCAA reply submission, 16 October 2014.

 43   cl 8.1(c) insert the words ‘an average of’ before the words ’38 hours per week’; cl 8.1(d) remove reference to casual employees and will read: ‘The ordinary hours of work for part time employees will be in accordance with clause 6 - Types of employment and 8.1(a) above’; cl 9.1 delete ‘five hours’ and insert ‘five ordinary hours’; cl 10.3 delete duties of a position’ and insert ‘work’; cl 14.2 and Table A.2.3: delete 200% and insert 225%; cl 14.3 amended to reflect the words in cl 23.3 of the Premixed Concrete Award 2010; cl 14.4 remove ‘employees other than shift workers’ from the heading; cl 14.6 delete ‘appropriate rate’ and insert ‘appropriate overtime rate’

 44   See the Amended Directions issued on 18 November 2014.

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