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

4 yearly review of modern awards – award stage – exposure drafts – Group 2 awards.

CONTENTS

ABBREVIATIONS

1. Introduction

[1] This decision arises from the 4 yearly review of modern awards (the Review) and, in particular deals with Group 2 of the Award stage of the Review. It should be read in conjunction with earlier decisions and statements concerning the Review, and in particular the decisions of 23 December 2014 1 (the December 2014 decision), 13 July 20152 (the July 2015 decision) and 30 September 20153 (the September 2015 decision) in which the Commission dealt with a number of general drafting and technical issues common to multiple exposure drafts.

[2] The December 2014 decision along with an additional decision issued in May 2015 4 dealt with alleged inconsistencies with the National Employment Standards (NES). Further decisions in relation to award flexibility (AM2014/300)5, annual leave (AM2014/47)6 and transitional provisions in relation to accident pay (AM2014/190)7 also have application to this group of awards.

2. Review of Group 2 Awards

[3] Having divided the modern awards into four groups for the purpose of the award stage of the Review, the initial conference for Group 2 awards was held on 23 October 2014. The nineteen Group 2 awards were then further divided into sub-groups in accordance with the list at Attachment A and another conference was held on 2 December 2014 to identify the variations sought to these awards. At the conferences and in written submissions, parties identified a number of awards where it would be beneficial to hold award-specific conferences to narrow the range of issues in dispute.

[4] In correspondence on 24 November 2014, the Fair Work Ombudsman (FWO) raised a number of issues identified through interactions with employers and employees covered by Group 2 awards. 8 While the FWO did not participate in any proceedings during the Award stage, these issues were drawn to the attention of the parties through notes in the exposure drafts and included in the summaries of submissions received.

[5] The Commission published exposure drafts for the Group 2 awards in December 2014 9 along with comparison documents showing the changes made to the structure and language in the award. Interested parties were given an opportunity to make written submissions on the exposure drafts and to reply to the submissions of others. At the request of the parties, further conferences were held to deal with a range of award-specific matters prior to hearings before the Full Bench. It should be noted that hearings originally scheduled for earlier in 2015 were postponed to October so that decisions could be issued in relation to the Group 1 awards prior to the Full Bench dealing with the Group 2 awards. This re-scheduling was supported by the parties who had also raised concerns about the workload associated with the Review, including the common issues matters being dealt with concurrently.10

[6] A hearing on 7 October 2015 dealt with a number of issues in this group of awards. Following that hearing, additional conferences were held before single members in relation to Group 2 awards to work through the remaining issues.

[7] The Group 2 exposure drafts were amended and republished in accordance with the decisions on general drafting and technical issues common to multiple exposure drafts. As well as the changes outlined below, some changes resolved through the conference process were also incorporated in the revised exposure drafts. The changes made in the decisions 11 listed in paragraph [1] as well as the decision of 23 October 201512 (the October 2015 decision) regarding the awards in subgroups 1C, 1D and 1E that also apply to this group of awards include:

(1) changes to the supersession clause 1.2 (December 2014 decision at [11])

(ii) inclusion of commencement clause (July 2015 decision at [8])

(iii) deletion of absorption clause 1.4 (September 2015 decision at [74])

(iv) reinstatement of the take home pay clause (December 2014 decision at [16])

(v) changes to NES provisions (December 2014 decision at [25] and [29])

(vi) removal of summaries of NES entitlements from clauses including various forms of leave, termination of employment, redundancy and proposed provision regarding pay slips (December 2014 decision at [35])

(vii) changes to text in facilitative provisions clause (December 2014 decision at [42])

(viii) changes to format of rates tables in National Training Wage schedule (where included) (December 2014 decision at [67])

(ix) inclusion of notes about annual leave and obligations regarding hourly rates in schedules (July 2015 decision at [94] and [63])

(x) standardisation of the use of the terms ‘minimum hourly rate’; ‘ordinary hourly rate’ and ‘all purpose allowance’ plus related definitions (July 2015 decision at [43], [35] and [91])

[8] The technical and drafting issues in the Group 2 awards, along with a number of changes sought by parties (other than substantive changes requiring extensive evidence) are dealt with in this decision. We now turn to each award under Review.

2.1 Alpine Resorts Award 2010

[9] An exposure draft based on the Alpine Resorts Award 2010 (the Alpine Award) was published on 8 December 2014 and submissions in response to the exposure draft were received from Falls Creek and another 13, Australian Industry Group (Ai Group)14, The Australian Workers’ Union (AWU)15, the Australian Ski Areas Association (ASAA)16 and the Mount Hotham Resort Management Board17. After the hearing on 7 October 2015, interested parties were invited to attend a conference the following day to discuss outstanding issues.

[10] After further submissions from the interested parties, a report to the Full Bench was published on 7 December 2015, and a revised exposure draft was published on 8 December 2015. The Commission requested parties file final submissions or comment by 22 January 2016, including any further discussions held between the parties which reached a consensus position in relation to any outstanding issues. Following final submissions from the parties, a further revised exposure draft was published on 19 April 2016.

[11] Two issues have been foremost in the conduct of the review of this Award to date. The first concerns the current provisions (contained in clause 11 of the Award) concerning seasonal employment. Relevantly, the Award provides that the hourly rate of pay for seasonal employees includes an 8.33% loading on the applicable hourly rate instead of annual leave (clause 11.5). In the December 2014 decision the Full Bench determined that this provision was inconsistent with s.87(1) of the Fair Work Act 2009 (FW Act) because it purported to exclude the provision of paid annual leave in circumstances where seasonal employees were not casual employees. 18 As a result consideration was required as to how the Award should be modified in order to render it consistent with the FW Act and, in particular, whether the 8.33% loading should remain in the Alpine Award.

[12] The second issue concerns the coverage of the Alpine Award. Clause 4.1 provides that the Award covers employers “who operate an alpine resort” in respect of employees in the classifications contained in the Alpine Award. The expression “alpine resort” is defined in clause 3 to mean “an establishment whose business, among other things, includes alpine lifting”. The Mount Hotham Chamber of Commerce 19, the Falls Creek Chamber of Commerce20, the Mount Hotham Resort Management Board21, the Thredbo Chamber of Commerce22, the Perisher Resorts Chamber of Commerce23 and Australian Business Industrial and New South Wales Business Chamber (jointly ABI)24 seek that the coverage of the Alpine Award be varied so that it applies to all employers operating in an alpine resort, not just those operating an alpine lift. The ASAA opposes this variation to coverage.25

[13] In respect of the first issue, the ASAA and the AWU have reached agreement 26 on a package of changes which include a number of variations which are technical in nature but also involve the following substantive variations:

● removal of the 8.33% loading for seasonal employees;
● the inclusion of an annual leave loading for non-casual employees;
● the application of overtime penalty rate provisions to casual employees, except snow-sports instructors, on the basis that the penalty rates will be inclusive of the casual loading and will be applicable only for work in excess of 10 hours per day or 38 hours per week over a maximum work cycle of 4 weeks.

[14] The AWU has particularly emphasised that it has agreed to these changes on the basis that they are a package, and that non-approval of any change in the package might affect its consent to other parts of it. 27 The Ai Group, being the other interested party in the Award as it currently stands, is not opposed to the package.28

[15] In respect of the second issue, there is a general consensus that as a significant issue in contest it should be referred to a separately constituted Full Bench.

[16] We consider that it would not be appropriate to approve the substantive variations in the package of changes agreed between the ASAA and the AWU in advance of a Full Bench hearing and determination of the coverage issue. That is because, in the event that the Full Bench determined that the coverage of the Award ought be expanded to encompass employers who are not currently covered, those employers would be denied an opportunity to be heard in relation to the substantive variations. Additionally we consider that it will be necessary for the ASAA and the AWU to advance cogent submissions as to why, for the purpose of s.138 of the FW Act, it is necessary for the agreed variations - in particular, the proposed new annual leave loading - to be made in order to achieve the modern awards objective in s.134.

[17] Accordingly the issues of coverage, and the three substantive variations proposed by the ASAA and the AWU referred to above, will be referred to a separately constituted Full Bench for hearing and determination. The other agreed variations proposed by the ASAA and the AWU, which are largely technical in nature, will be made (subject to some minor modifications). A further exposure draft will be issued reflecting these changes.

2.2 Animal Care and Veterinary Services Award 2010

[18] An exposure draft based on the Animal Care and Veterinary Services Award 2010 (the Animal Care Award) was initially published on 8 December 2014 and submissions in response to the exposure draft were received from the Australian Veterinary Association (AVA) 29, the AWU30, the Ai Group31 and the Australian Federation of Employers and Industry (AFEI)32. Following the hearing on 7 October 2015, a conference was conducted by Commissioner Roe on 8 October 2015. The report to the Full Bench concerning this conference was published on 9 October 2015 together with a revised summary of submissions. In the report submissions were requested in respect to particular items.

[19] A further report was published on 27 November 2015 and that report requested further submissions on two issues. A revised exposure draft was published on 7 December 2015 and an updated further revised exposure draft was published on 11 December 2015 together with a revised summary of submissions. A final report was published on 5 January 2016.

[20] We propose to adopt all of the agreed changes set out in the Commissioner’s reports which are reflected in the further revised exposure draft.

[21] Following consideration by the parties at the various conferences, the exposure draft clarifies the payment for veterinary surgeons for work on public holidays in clauses 20.3 and 20.4. We will assume that further variations are not being pursued unless advised to the contrary within seven days of this decision.

[22] There are three outstanding matters which the parties agreed at the conferences before Commissioner Roe should be determined by this Full Bench on the basis of written submissions. This was confirmed at the hearing before Vice President Hatcher on 7 July 2016 33 and directions were issued for the filing of any final submissions. Further submissions were received from the AFEI34 and the AVA35.

[23] The first issue concerns a note to clause 11.2(a) of the exposure draft. In the conferences before Commissioner Roe interested parties generally agreed that a note is required in clause 11.2(a)(i)—On call duty to clarify the relationship to clause 8.3(c), which provides for a “minimum of three full days off per fortnight” for veterinary surgeons. Parties generally support the note reading: “Note: An associate is not in receipt of a day off for the purposes of Clause 8.3(c) if they perform scheduled active on call duty on that day”. The Ai Group 36 and the AFEI37 wish to ensure that there is no implication that on-call time is to be considered “ordinary hours of work”. The AVA seeks to replace “perform scheduled active on call duty on that day” with “if they are required to be on call on that day”.38

[24] The current Award and the exposure draft provide that “on call duty is not counted towards ordinary hours of duty or extra hours of duty”.

[25] The AFEI in its further submission state that they do not consider a note to be necessary. 39 However, the primary focus of their submission is to oppose the amendment to the proposed note sought by the AVA.40

[26] The AVA in its submission argues that the three full days off per fortnight should not include any period of on call. The AVA submits that the majority of employer veterinarians interpret the current provision in this manner, and that because on call duty is very common in the industry, veterinarians will be effectively denied a three day break each fortnight if on call duty can be required on these three days off. 41

[27] We accept the AVA submission that veterinarians cannot enjoy three full days off if they have to be ready and available to work on those days. However, we consider that the current Award does not prevent veterinarians from being on call on their days off and a veterinarian is still on a day off even if they are on call for the purposes of the Award. If a veterinarian is actually required to work on a day off then they are on active on call duty and that day is no longer regarded as a day off for the purposes of the right to three full days off in a fortnight.

[28] We do not consider that the AVA has made a sufficient case to vary the Award to exclude on call duty on at least three days per fortnight. We will not vary the exposure draft.

[29] The second issue concerns paid study leave for veterinary surgeons. Clause 13.3 of the exposure draft provides for one week’s paid study leave for full-time veterinary surgeons for each completed year of service. The AVA 42 with support of United Voice (UV) and the AWU seeks to insert a clarification that the leave is provided on a pro rata basis to part-time veterinary surgeons. Ai Group and the AFEI argue that the current entitlement is restricted to full-time employees and this should not be changed.43

[30] In respect of veterinary surgeons employed part-time the current Award relevantly provides as follows:

“10.4 Part-time employment
…
(b) Part-time employees are entitled on a pro rata basis to equivalent pay and conditions to those of full-time employees.
…

19.3 To facilitate skill acquisition and career progression, a full-time associate is entitled to one week’s paid study leave, at the associate’s ordinary rate of pay, for each completed year of service.
…”

[31] These provisions are substantially the same in the exposure draft. The AFEI argues that the current entitlement is restricted to full-time employees. However we do consider clause 19.3 excludes part-time employees from the entitlement on a pro rata basis.

[32] The AVA submits that at present 80% of those graduating as veterinarians are women and that the change in gender profile has led to an increase in part-time work. They also submit that all State and Territory registration boards expect registered veterinarians to undertake a minimum level of continuing professional development (CPD). The amount of CPD required is the same irrespective of whether the person is working full-time or part-time. The AVA submits that the requirement for professional development is legislated in New South Wales, Queensland and the Australian Capital Territory. All jurisdictions have agreed through the Australasian Veterinary Boards Council that continuing professional development is expected of registered veterinarians and have established a minimum annual requirement. 44

[33] We are satisfied that it is appropriate for part-time veterinarians to receive pro rata paid study leave. We are also satisfied that it is necessary and appropriate to clarify in the exposure draft that the entitlement applies to both full-time and part-time employees. We will add “A part-time associate is entitled to such leave on a pro rata basis” to clause 13.3 of the exposure draft.

[34] The third issue concerns overtime entitlements. UV 45, with the support of The Association of Professional Engineers, Scientists and Managers, Australia (APESMA)46, the AWU47 and the AVA48, seeks to amend the provision in clause 16.1(c) of the exposure draft, which provides that when calculating overtime each day’s work will stand alone. They seek to include an exception so that this requirement does not apply where the overtime is continuous with overtime which commenced on the previous day. The variation is opposed by the AFEI49 and Ai Group50. No party has made a substantive submission as to why the variation is necessary. In the absence of any evidence or submission that the current provision has been problematic we will not make the variation sought.

[35] The Veterinary Nurses Council of Australia seeks a variation to Schedule A.2.6 of the exposure draft to introduce a diploma qualified classification and also to vary Schedule A.2.5 to vary the competencies required for Level 4 to Certificate IV in Veterinary Nursing or equivalent. 51 This is a claim for a variation of a substantive nature and will be referred to a separately constituted Full Bench for hearing and determination:

[36] APESMA in their submission of 16 July 2015 also proposed a variation to clause 16.2 of the exposure draft to clarify overtime rates for veterinary surgeons. They consider that the present provision which allows for an allowance to be paid as an alternative is too vague. 52 However APESMA advised in correspondence dated 26 July 2016 that it no longer wished to pursue this variation.53

[37] On 3 February 2016, following publication of the final report, an individual employer has submitted that the public holiday provisions for veterinary surgeons who worked irregularly on weekends are unfair. 54 We have decided that this matter should be referred to the Public Holidays Full Bench.

2.3 Aquaculture Industry Award 2010

[38] An exposure draft based on the Aquaculture Industry Award 2010 was initially published on 8 December 2014 and submissions in response to the exposure draft were received from the Ai Group 55, Business SA56, the AWU57, Austuna and others58. Conferences were held on 28 October 2015 and 18 November 2015 and a report to the Full Bench was issued on 2 December 2015 which included an updated summary of submissions from the parties.

[39] A revised exposure draft and an amended report were published on 8 December 2015. Parties were invited to file final submissions, comments or advice regarding resolved issues by 22 January 2016.

[40] A conference before Deputy President Bull was held on 18 November 2015. A report to the Full Bench (the Report) outlining the outcome of that conference was published on 2 December 2015. A revised exposure draft incorporating agreed changes arising from the conference was then published on 4 December 2015. Those agreed changes will be adopted.

[41] Following the publication of the report, on 14 December 2015, parties were invited to provide any comment or final submissions in relation to the two outstanding issues by 22 January 2016. 59 No further submissions or comment were received. We will therefore proceed to determine those issues based on the submissions of interested parties which were earlier provided.

[42] The first issue arose from Business SA’s response to a question in the exposure draft about the drafting of clause 11.3(b)(iii) (which reflects the existing clause 15.2(c) of the Award). 60 Clause 11.3(b) of the exposure draft provides:

“(b) Meal allowance

(i) An employee required to work overtime for more than two hours will either be supplied with a meal by the employer or paid $16.02. 61

(ii) Where the employer has not advised the employee on the previous day or earlier of:

● the requirement to work overtime; and

● that the requirement will necessitate that the employee have a second or subsequent meal;

the employer will supply the employee with a second or subsequent meal or make a further payment of $16.02 per meal.

(iii) If an employee, pursuant to notice, has provided a meal or meals and is not required to work overtime or is required to work less than the amount advised, they will be paid $16.02 for each surplus meal provided.”

[43] Clause 11.3(b)(ii) involved a clarificatory redrafting of clause 15.2(b) of the award as it currently stands, which provides:

“(b) Unless the employer advises an employee on the previous day or earlier that the amount of overtime to be worked will necessitate the partaking of a second or subsequent meal (as the case may be) the employer will provide such second or subsequent meal or make payment of $16.38 per meal.”

[44] The question posed by the exposure draft was:

“Parties are asked whether clause 11.3(b)(iii) should clearly state that the amount payable in clause 11.3(b)(i) is not payable in addition to the amount in clause 11.3(b)(iii). Should the words ‘to work less than the amount advised’ be changed to ‘to work less than two hours’?”

[45] Business SA’s submission was confined to an expression of agreement with the proposition in the second sentence above. Business SA did not attend the 18 November 2015 conference in person or by telephone, and so did not advance any further explanation of its position. The AWU 62 and the NSW Farmers’ Industrial Association (NSWFA)63 submitted that the provision in the exposure draft should not be changed. NSWFA agree to leave the Exposure Draft as it currently stands.64 The AWU’s submission was based on the proposition that the meal allowances provided under clauses 11.3(b)(i), (ii) and (iii) were separate entitlements.65

[46] The meal allowance entitlements regarding overtime may be summarised as follows:

(a) A meal allowance is payable or a meal must be provided where more than two hours overtime is worked under clause 11.3(b)(i).
(b) Where no notice has been provided on the previous day or earlier of both the requirement to work overtime and that the length of the overtime would make it necessary for the employee to have a second or subsequent meal, the employee is to be provided with a second or subsequent meal or paid the allowance per meal under clause 11.3(b)(ii). The effect of this provision is that where such notice is provided, the employer is not required to provide any meal or make any payment in addition to that required by clause 11.3(b)(i).
(c) If an employee is given notice of a requirement to work overtime and consequently provides a meal or meals for himself or herself, and the employee is subsequently not required to work overtime at all or for less than the amount advised, the employee will be paid the allowance for each surplus meal provided under clause 11.3(b)(iii).

[47] The amendment suggested in the exposure draft and embraced by Business SA would, we consider, not be workable because it fails to take into account that the surplus meal may be a second or subsequent meal which is not required because the overtime worked, although over two hours, is not of the amount advised and does not justify the provision of the second or subsequent meal. However, it must be observed that the operation of (ii) and (iii) is obscure because there is no specification of the period of overtime that is necessary to require the provision of a second or subsequent meal. Presumably it would have to be a number of hours beyond the first two hours upon which the first meal or the payment of the first meal allowance is required under (i), but the clause gives no certainty about this. We consider that the clause should be amended to rectify this. Having regard to the fact that the Award requires a paid break of 20 minutes immediately after finishing ordinary hours if more than one and a half hours overtime is to be worked, and further such breaks after every four hours of overtime (see cl.14.7 of the exposure draft), we propose to re-draft clause 11.3(b) to make it clear that the entitlement to a second or subsequent meal break aligns with the provision of overtime meal crib breaks. The re-drafted clause would read as follows:

(b) Meal allowance

(i) An employee required to work overtime for more than two hours will either be supplied with a meal by the employer or paid $16.38.

(ii) An employee is additionally required to be supplied with a meal by the employer or paid $16.38 on each occasion after the first occasion the employee is required to be provided with an overtime crib break in accordance with clause 14.7(a) unless the employer has advised the employee on the previous day or earlier of:

• a requirement to work overtime; and



• that the requirement will necessitate that the employee have a second or subsequent meal.

(iii) If an employee, in accordance with notice provided by the employer the previous day or earlier of the amount of overtime to be worked, has provided a meal or meals, and is not required to work overtime or is required to work an amount of overtime that is less than two hours in the case of the first meal, or less than four hours in the case of the second meal, or less than an additional four hours in the case of a subsequent meal, they will be paid $16.38 for each surplus meal provided.”

[48] Any party which opposes the re-drafted clause above may file a submission in that respect within 14 days of this decision. We will then determine any outstanding issue on the papers. If no such submission is filed, the new clause will be incorporated into the exposure draft.

[49] The second issue is a proposal by Business SA 66 to amend the drafting of clause 15.3 Taking annual leave of the exposure draft as follows:

15.3 Taking annual leave

“Annual leave is to be taken within 18 months six months of the entitlement accruing full four week entitlement accruing…..”

[50] Business SA submitted that the current wording in the exposure draft implies that annual leave is accrued on an annual basis and that no entitlement exists before 12 months. 67 Under the FW Act annual leave is accrued progressively throughout the year. This puts into question the practical effect of this clause.

[51] Consistent with the discussion which occurred at the Full Bench hearing of 7 October 2015, 68 this issue has been referred to the Annual Leave Full Bench.

2.4 Corrections and Detention (Private Sector) Award 2010

[52] An exposure draft based on the Corrections and Detention (Private Sector) Award 2010 (the Corrections award) was initially published on 15 December 2014 and submissions in response to the exposure draft were received from Ai Group 69 and the AWU70. After the hearing on 7 October 2015, a further revised summary of submissions was published identifying those matters that had been resolved by the Full Bench decisions discussed earlier, those matters withdrawn by the parties and those matters that were to be referred to various Common issues Full Benches.

[53] An amended exposure draft and a draft report were published for discussion at a conference on 27 October 2015. Following the conference a further amended exposure draft and a revised draft report were published setting out the changes to the exposure draft that the parties had agreed on. Parties were provided 14 days to file further written submissions on two outstanding issues relating to span of hours for part-time day workers and the dog handling allowance. Three submissions were received (AWU 71, Ai Group72 and UV73) and a further revised exposure draft was published on 1 December 2015 for discussion at the conference on 11 December 2015.

[54] Ai Group 74 and the AWU75 identified typographical errors in the exposure draft in their submissions of 13 November 2015 relating to clauses 2.1, 20.2 and 11.3(a)(i) respectively. UV did not oppose the typographical errors identified by Ai Group at the conference on 11 December 2015,76 accordingly we propose to adopt these changes. The further revised exposure draft published 1 December 2015 was updated to reflect these changes.

[55] We propose to adopt all of the agreed changes set out at Paragraph [1] of the revised draft report which are reflected in the further revised exposure draft published on the Commission’s website on 1 December 2015.

[56] We now turn to the two outstanding issues.

[57] The first issue concerns the span of hours applicable to part-time employees. Clause 8.2(a) of the further revised exposure draft states:

“(a) Ordinary hours of work for full-time employees other than shiftworkers are worked between 6.00 am and 6.00 pm any day of the week.”

[58] The parties were asked to clarify whether the span of ordinary hours in clause 8.2(a) also applies to part-time day workers.

[59] The AWU submits that the span of hours in clause 8.2(a) does apply to part-time day workers. 77 In support of this submission the AWU relies on two other provisions in the exposure draft:

(i) clause 6.4(b)(iii) which provides that a part-time employee:

‘receives, on a pro rata basis, equivalent pay, and conditions to those of full-time employees who do the same kind of work.’, and

(ii) clause 14.2(a) which provides, :

‘A full-time or part-time employee is paid at overtime rates for any work done outside the spread of hours set out in clause 8’ (emphasis added)

[60] The provisions of the exposure draft at clause 6.4(b)(iii) and 14.2(a) are in substantially the same terms as clauses 10.4(b)(iii) and 22.2(a) of the current award.

[61] The AWU contends that it is evident from clause 14.2(a) that the span of hours specified in clause 8 applies to part-time employees. 78 UV supports the AWU’s submission.79

[62] Ai Group contends that the span of hours in clause 8.2(a) does not apply to part-time day workers as clause 8.2(a) unambiguously states that it only applies to full-time employees. 80 In reply to the points advanced by the AWU, Ai Group submits that:

(i) clause 6.4(b)(iii) must be read subject to the terms of the specific provision which gives rise to the ‘conditions’. Further, it contemplates that certain award terms and conditions apply on a pro rata basis. As the specification of a span of hours cannot be applied on a pro rata basis, the practical application of clause 6.4(b)(iii) to clause 8.2(a) is ambiguous (if it applies at all).

(ii) clause 14.2(a) does not displace the specific terms of clause 8.2(a). It simply entitles a part-time employee to overtime rates for any work done outside the spread of ordinary hours set out in clause 8 ‘to the extent that such provisions apply to them’. 81

[63] The revised draft report published on 30 October 2015 asked parties to consult with their respective members to obtain more information about the current practice of rostering part-time employees and the incidence of part-time work. The purpose of the consultation process was to provide information to enable the Commission to assess the impact, if any, of an award provision applying the span of hours in clause 8.2(a) to part-time day workers.

[64] Ai Group advised that they were unable to obtain information regarding current industry practice with respect to the rostering of part-time employees or the incidence of part-time work. Noting that the vast majority of relevant pre-modern instruments did not stipulate a spread of hours, Ai Group maintained that the proposed variation sought by the AWU was a substantive change and should not be made. 82

[65] United Voice reported that all its members in the sector, including all detention officers in the privately operated immigration detention system and prison officers in some privately operated prisons in New South Wales and Queensland, are covered by enterprise agreements, with a low incidence of part-time employment. 83

[66] At the 11 December 2015 conference, parties were directed to consult their members further in an effort to obtain additional information relating to the spread of hours of part-time day workers. 84 No further information was received and the parties were content to rely on their previous submissions.85

[67] We agree with the AWU’s submission. Clause 8.2(a) of the further revised exposure draft will be amended to make it clear that it applies to part-time day workers.

[68] It is plainly intended that part-time employees receive equivalent pay and conditions to those of full-time employees. The expression ‘on a pro rata basis’, in clause 6.4(b)(ii), qualifies that general entitlement, but only in circumstances where the entitlement is derived from the number of hours worked. Further, it is apparent from clause 14.2(a) that the spread of hours specified in clause 8 is intended to apply to part-time employees. Accordingly, to make this clear, clause 8.2(a) will be amended to read as follows:

“(a) Ordinary hours of work for full-time and part-time employees other than shiftworkers are worked between 6.00 am and 6.00 pm any day of the week.”

[69] The second unresolved issue concerns the scope of clause 11.2(b) of the exposure draft – the dog handler’s allowance. Ai Group submits that the clause in the exposure draft deviates substantively from clause 15.5 of the current award by expanding the application of the provision and imposing a new positive obligation on the employer to be responsible for the tasks listed in clause 15.5 of the current award, including feeding and exercising. 86

[70] Clause 15.5 of the current award provides as follows:

“15.5 Dog handler’s allowance

(a) Where an employee is responsible for maintaining an animal attached to a Dog Handlers’ Unit and such responsibility includes feeding, exercising, home kennelling, transporting, and ensuring the safety and security of the animal; the employer will either directly provide and/or pay the costs associated with maintaining the animal in accordance with this clause, or the employee will be paid a fortnightly dog handler’s allowance calculated at 5% of the fortnightly rate of pay prescribed in clause 14.1 for the employee’s classification.

(b) An employee and their employer may agree to arrangements that involve part direct provision and/or payment of costs and part payment of the fortnightly dog handler’s allowance.

(c) The employer will be responsible for providing alternative kennel facilities for the animal during an employee’s leave.

(d) The employer will cover the cost of approved veterinary treatment provided to the animal.”

[71] Clause 11.2(b) of the further revised exposure draft seeks to express the existing provision in plain language, it states:

“(b) Dog handler’s allowance

(i) Where an employee is responsible for maintaining an animal attached to a dog handler’s unit an employer will directly provide the following services:

● feeding;

● exercising;

● home kennelling;

● transporting; and

● ensuring the safety and security of the animal.

(ii) If the employer does not provide the services in clause 11.2(b)(i) they will:

● pay the costs associated with maintaining the animal; or

● pay the employee a weekly allowance of 5% of the employee’s weekly rate of pay in clause 10.1.

(iii) An employee and their employer may agree to arrangements that involve part direct provision and/or payment of costs and part payment of the weekly dog handler’s allowance.

(iv) The employer will be responsible for providing alternative kennel facilities for the animal during an employee’s leave.

(v) The employer will cover the cost of approved veterinary treatment provided to the animal.”

[72] An amended draft clause 11.2(b) was put to the parties during the conference on 11 December 2015 in an effort to address Ai Group’s concerns. Parties were then given an opportunity to review the draft clause in writing and provide further submissions. 87

[73] The amended draft clause provides as follows:

“11.2 Wage related allowances

(b) Dog handler’s allowance

(i) For the purpose of this subclause 11.2(b), an employee is responsible for maintaining an animal attached to a Dog Handers’ Unit if they are responsible for feeding; exercising; home kennelling; transporting and ensuring the safety and security of the animal.

(ii) Where an employee is responsible for maintaining an animal attached to a dog handler’s unit an employer will directly provide the following services:

● feeding;

● exercising;

● home kennelling;

● transporting; and

● ensuring the safety and security of the animal.

(iii) If the employer does not provide the services in clause 11.2(b)(i) they will:

● pay the costs associated with maintaining the animal; or

● pay the employee a weekly allowance of 5% of the employee’s weekly rate of pay in clause 10.1.

(iv) An employee and their employer may agree to arrangements that involve part direct provision and/or payment of costs and part payment of the weekly dog handler’s allowance.

(v) The employer will be responsible for providing alternative kennel facilities for the animal during an employee’s leave.

(vi) The employer will cover the cost of approved veterinary treatment provided to the animal.”

[74] Ai Group supports clause 11.2(b)(i) but not clauses 11.2(b)(ii) and (iii), reiterating their concern that the draft clause deviates from the current award, and relies on their previous submissions in this regard. 88 United Voice supports the draft clause in its entirety.89

[75] The essence of Ai Group’s submissions is the contention that subclause 11.2(b)(ii), ‘imposes a new positive obligation on the employer to provide the identified services while the current award assumes that responsibility will fall to the employee, with an employer merely having the option of providing or paying the costs of such services’. 90

[76] In our view the submission put proceeds on a false premise – in that it misconstrues clause 15.5 of the current award. Clause 15.5(a) clearly states that ‘the employer will either directly provide and/or pay the costs associated with maintaining the animal in accordance with this clause, or the employee will be paid a fortnightly dog handler’s allowance calculated at 5% of the fortnightly rate of pay’. It is apparent from a reading of the clause as a whole that ‘maintaining the animal’ includes ‘feeding, exercising, home kennelling, transporting and ensuring the safety and security of the animal’. Hence, the employer must either directly provide those services (i.e. feeding, exercising the animal etc.) or pay the costs of doing so, or pay the employee allowance. While expressed differently, the amended draft clause provides the employer with the same options.

[77] We propose to insert the amended draft clause into the further revised exposure draft.

2.5 Fire Fighting Industry Award 2010

[78] An exposure draft based on the Fire Fighting Industry Award 2010 (the Fire Fighting award) was initially published on 15 December 2014 and submissions in response were received from the AWU raising a range of technical and drafting issues. 91 The employer parties did not attend the hearing on 7 October 2015, but participated in a conference on 21 October 2015, after which a revised exposure draft was published and further directions were issued giving parties another opportunity to file comprehensive written submissions on the technical and drafting issues related to the exposure draft.

[79] Submissions were received from the United Firefighters’ Union of Australia (UFUA) 92, Country Fire Authority (CFA)93 and Metropolitan Fire Brigade (MFB)94. A further revised summary of submissions and further revised exposure draft were published prior to further conferences on 7 and 17 December 2015. During the 17 December conference, discussions were held regarding the MFB proposal to introduce flexible working arrangements for public sector employees. There are two limbs to the MFB proposal:

(i) to permit part-time employees to be employed in the public sector; and

(ii) the removal of the current distinction between the public sector and the private sector as to the types of rostering arrangements (see clauses 22 and 23 of the Award).

[80] Due to the complexity of these issues, the opposition of the UFUA and AWU, and the fact that evidence would be advanced in support of the claim, these matters were referred to a separately constituted Full Bench for determination. 95

[81] Apart from these two substantive issues, most of the remaining issues raised during the Award stage have been resolved by consent and will be adopted. The issues to be determined by this Full Bench are:

(i) payment while on annual leave; and
(ii) payment for work on a public holiday when an additional day of leave is granted. 96

[82] As to the first matter, clause 22 of the further revised exposure draft published on 1 December 2015 asked parties to consider whether a provision should be inserted to clarify the rate of pay for an employee on annual leave.

[83] The AWU and UFUA submitted that such a provision would be desirable 97 while the MFB considered the current wording adequate.98 The CFA submitted such a provision would not serve any useful purpose.99 The parties were content for the Full Bench to resolve the issue on the basis of the material already filed.100

[84] In paragraph 52 of the December 2014 decision we stated:

“… 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” 101.

[85] Due to the different rates of pay used for various purposes in this award (i.e. minimum hourly rate, ordinary hourly rate and total hourly rate) we consider it would be of assistance to insert a provision to clarify the rate of pay for an employee while on annual leave. However, it is not clear which rate of pay should be paid to an employee while on annual leave. The options appear to be either the ‘ordinary hourly rate’ or the ‘total hourly rate’. The answer to that question may depend on whether the employee is a shiftworker or not. We propose to provide an opportunity for the parties to comment on which rate(s) of pay is to be specified through written submissions.

[86] The second issue concerns clause 21.3(a) which currently provides that:

“(a) Not later than two weeks after a public holiday a day worker may elect to be paid at the rate of 50% of their ordinary hourly rate for each hour of rostered ordinary work performed on that day and granted one day’s leave instead of the public holiday.”

[87] The further revised exposure draft published 1 December 2015 asked parties to comment on whether the reference to 50% should be to 150% of the ordinary hourly rate.

[88] MFB submit that the reference to 50% is correct on the basis that a day worker who elects to be paid at 50% of their ordinary hourly rate under clause 21.3(a) is also granted an additional one day’s leave (together, equivalent to 150%). 102 The unions assert the reference should be to 150%.103

[89] At the 17 December 2015 conference parties’ advised that they were content for the Full Bench to resolve the issue on the material already filed. 104

[90] There was no dispute that in accordance with clause 21.2 an employee who works a public holiday is entitled to a penalty of 250% of the total hourly rate where they do not take an additional day of leave as part compensation. To ensure that an employee who works on a public holiday and elects to take an additional one day’s leave is not disadvantaged when compared to an employee who takes their entitlement as pay, we propose to amend clause 21.3 of the exposure draft to read:

“21.3 Public holidays – day workers

(a) Not later than two weeks after a public holiday a day worker may elect to be paid at the rate of 150% of their ordinary hourly rate for each hour of rostered ordinary work performed on that day and granted one day’s leave instead of the public holiday. This entitlement is instead of the rate in clause 21.1.”

2.6 Graphic Arts, Printing and Publishing Award 2010

[91] An exposure draft based on the Graphic Arts, Printing and Publishing Award 2010 (the Graphic Arts Award) was initially published on 8 December 2014 and submissions in response to the exposure draft were received from the Printing Industries Association of Australia (PIAA) 105, Ai Group106, Business SA107, the AFEI108, and ABI109. After a conference conducted by Ross J, President, on 2 September 2015, a further revised summary of submissions was published identifying those issues which had been resolved and those which were still relevant.

[92] An amended exposure draft was published on 30 September 2015 and further submissions were received in relation to it. A revised exposure draft and report were published on 8 December 2015 setting out the changes which the parties had agreed upon. Final submissions or comments were requested from the parties by 22 January 2016. Subsequent correspondence was received from the Ai Group 110 and “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU)111.

[93] A number of non-controversial technical and drafting issues were agreed between the parties including changes to reflect recent Full Bench decisions. A number of changes were agreed to on the basis of providing consistency and to remove ambiguity.

[94] The agreed changes (identified in the 8 December 2015 report) will be adopted and will be incorporated into a further exposure draft to be published in due course.

[95] There remain four outstanding issues in relation to this Award.

(1) Training allowances: Clause 7 of the exposure draft provides that all conditions of the Award apply to apprentices unless otherwise stated. Clause 17.4 of exposure draft provides for certain training allowances. Both these provisions reflect the Award as it currently stands (clauses 13 and 25.4 respectively. The Ai Group proposes that training allowances should not apply to trainees. 112 This is opposed by the AMWU.113

(2) Competencies: The AMWU seeks to amend the Schedule B—Competencies of the exposure draft (which reflects Schedule C of the current Award) on the basis that they are out of date.¹¹⁴ This is opposed by the Ai Group.¹¹⁵

(3) Payment of wages on termination: Ai Group seeks a variation to clause 18.7 of the exposure draft (clause 28.5 of the current Award) to provide that termination monies may be paid in accordance with the employer’s pay cycle when payment is made by electronic funds transfer.¹¹⁶ The current requirement is for employers to pay employees by the end of the next business day following termination. Ai Group has advanced similar claims in a number of other awards. This is opposed by the AMWU.¹¹⁷

(4) Coverage of metropolitan daily newspapers: The AMWU submits that daily metropolitan newspapers are not covered by the Award because its coverage is relevantly confined to the “production of non-daily and regional daily newspapers” (clause 4.9 of the current Award and clause 3.2(n) of the exposure draft).¹¹⁸ It proposes that the coverage of the Award be amended to extend to daily metropolitan newspapers. Fairfax Media¹¹⁹, West Australian Newspapers Limited (WAN) and ColourPress Pty Ltd submit that daily metropolitans are covered by the Award,¹²⁰ although WAN and ColourPress accept there is some ambiguity in the way the coverage clause is worded.¹²¹

[96] We consider that the first three issues identified above are substantive issues which should be referred to a separately constituted Full Bench for hearing and determination. In relation to the fourth issue, we accept in principle that it should be made clear that the Award’s coverage extends to metropolitan daily newspapers. However that change or clarification of coverage may require consequential changes to various other provisions of the Award having regard to the terms of the pre-2009 industrial instruments which applied. A number of parties have adverted to the need for this wider consideration to arise. Accordingly we will also refer this issue to the separately constituted Full Bench for finalisation.

2.7 Health Professionals and Support Services Award 2010

[97] Following the publication of the initial exposure draft in relation to this award on 8 December 2014 a conference was conducted by Commissioner Bissett on 3 February 2015. After the receipt of submissions from various interested parties, a further conference was conducted by Commissioner Roe on 29 October 2015. Commissioner Roe’s report to the Full Bench concerning this conference was published on 30 October 2015. Following receipt of further submissions in respect to items identified in the report a further report to the Full Bench was published on 27 November 2015 together with a revised summary of submissions on 7 December 2015 and a revised exposure draft on 4 December 2015. After some additional submissions were received a further report to the Full Bench was published on 5 January 2016 and further conferences to deal specifically with the outstanding issues concerning hours of work and penalty issues were scheduled for 4 February 2016 and 19 February 2016. This led to a revised proposal in respect to the outstanding hours of work and penalty issues from the Health Services Union of Australia (HSU). 122 The progress in respect to these matters was summarised in a further report to the Full Bench of 26 April 2016.

[98] We propose to adopt all of the agreed changes set out in the Commissioner’s reports, which are reflected in the revised exposure draft published on the Commission’s website on 4 December 2015.

[99] The conference process has led to the resolution of a number of the issues raised by various parties. We now turn to the remaining outstanding matters.

[100] The most significant outstanding issues relate to hours of work. These issues affect clauses 8.1, 9.1, 18 and 19 of the exposure draft concerning meal breaks, span of hours and overtime and related issues of shift, weekend and public holiday penalties. The HSU package of proposed alternative variations in respect to these matters is attached to the report to the Full Bench of 26 April 2016. The HSU package has subsequently been supported (subject to some clarifications) by a number of employer organisations. Other employer organisations remain opposed to the HSU proposed package or to parts of the package. The position of the various parties in response to the HSU proposal is reflected in the revised summary of submissions published on 21 June 2016. Because these issues are substantive in nature they will be referred to a separate Full Bench for hearing and determination.

[101] There are a number of other matters which will be referred to a separate Full Bench as they are likely to require further submissions and the hearing of evidence. They are as follows:

● The proposal from Medical Imaging Employment Relations Group (MIERG) for a Schedule J—Medical Imaging which sets out comprehensively separate pay and conditions for medical imaging. The revised proposal from MIERG is set out in its submissions of 19 May 2016. 123

● An issue raised by the HSU as to whether the list of common health professionals in Schedules A and B (referred to in clauses 3.1(b) and 11) is exhaustive or indicative and whether or not the exposure draft should be varied to clarify this. 124

● Variations for translators and interpreters proposed by the APESMA 125. This includes variations proposed to clause 11.2 and Schedules A and B of the exposure draft. It also includes a consequential proposal to insert in Schedule I—Definitions a definition of NAATI; “National Accreditation Authority for Translators and Interpreters Ltd”.

● The proposal by Ai Group 126 and the Chiropractors Association of Australia127 to introduce a provision for annualised salary for health professionals and employees at higher classification levels in the support services stream.

● The proposal by HSU to introduce classification and pay rate for intern health professionals in Schedule A. 128

● The proposal by the HSU to vary clause 20—Annual Leave, of the exposure draft, in respect to the entitlement of shiftworkers to an additional week of annual leave. 129

● The proposal by Aged and Community Services NSW & ACT and others (jointly ACE) to vary clause 8.3 of the exposure draft concerning the change of rosters, so that rosters may be varied by mutual consent without the need to provide seven days’ notice. 130

[102] Consistent with a directions made by Vice President Hatcher on 7 July 2016, parties seeking variations in relation to the matters identified above have now filed draft determinations specifying those variations. They will form part of the matters referred to the separately constituted Full Bench 131.

2.8 Horse and Greyhound Training Award 2010

[103] An exposure draft based on the Horse and Greyhound Training Award 2010 (the Greyhound award) was initially published on 15 December 2014 and following this, submissions were received from Ai Group 132, the AWU133, AFEI134 and the Australian Trainers’ Association (ATA)135. After the hearing on 7 October 2015, a further revised summary of submissions was published identifying those matters that had been resolved by the Full Bench decisions outlined in paragraph [7], those withdrawn by the parties and those that were to be referred to other Full Benches dealing with Common issues.

[104] A further conference was listed for 27 October 2015 to discuss the further revised summary of submissions, amended exposure draft and a draft report. Following the conference a further amended exposure draft and a revised draft report were published and parties were provided 14 days to file further written submissions on these revised documents. The AWU 136, ATA137 and Ai Group138 made submissions in response. A range of non-contentious drafting errors raised in these submissions were corrected139 and a further revised exposure draft was published on 1 December 2015.

[105] We propose to adopt all of the agreed changes set out at paragraph [1] of the revised draft report as well as those reflected in the further revised exposure draft published on 1 December 2015.

[106] The AWU submitted that the rates in tables A.2.2 and A.2.3 of the exposure draft should be amended as they are incorrect. 140 It is contended that the rates fail to take into account casual loading, which is paid for all purposes, making the 25% loading payable on all hours worked, including overtime, weekends and public holidays. In accordance with paragraph 110 of the September 2015 decision141 and consistent with our approach in paragraph 59 of the October 2015 decision142, we have amended the tables in Schedule A.2 in the further revised exposure draft to take into account that the casual loading is payable for all purposes.

[107] We now turn to the two outstanding issues.

[108] The first issue concerns the payment of public holiday penalties to casuals. The ATA contends that the current Greyhound award provides that casuals who work on a public holiday are only entitled to the 25% casual loading and do not have an entitlement to the public holiday loading prescribed in clause 26.3 of the current award. 143

[109] The AWU submit that in its present form the clause would not meet the modern awards objective and note that if the clause was to remain, it would be the only modern award which excludes casual employees from receiving penalty rates for work on a public holiday. 144

[110] The entitlements of a casual employee working on a public holiday will be reviewed following the outcome of the Casual Employment matter in AM2014/197 and any decision issued by that Full Bench.

[111] The second issue concerns ‘Types of employment’. Clause 6.2 of the exposure draft provided as follows:

“An employer will inform each employee of the terms of their engagement and their type of employment.”

[112] The comparable provision in the current award is clause 10.1 which provides, relevantly:

“It must be clearly indicated by the employer whether the employee is engaged on a full-time, part-time or casual basis”.

[113] The AWU submits that clause 6.2 does not specify when an employer has to inform an employee of the terms of their engagement and their type of employment and proposes the addition of the following words, at the commencement of clause 6.2: ‘Before the commencement of employment’. 145

[114] Ai Group is opposed to the amendment proposed by the AWU and, further, submits that the reference to ‘terms of their engagement’ extends the current obligation to inform an employee of their type of employment and should be deleted. 146

[115] The ATA does not oppose the AWU’s proposal nor is it opposed to the deletion of the words ‘terms of their engagement’ as proposed by Ai Group. 147

[116] In an attempt to resolve the parties concerns the Commission inserted the following clause into the further amended exposure draft for the consideration of the parties:

“At the commencement of their employment the employer will inform each employee of their type of employment (i.e. full-time, part-time or casual).”

[117] Parties were given an opportunity to make any comments on the proposed clause. In their submission of 13 November 2015, the AWU advised that they do not object to the wording suggested by the Commission. 148 No other submissions in relation to this issue have been received and we will adopt the proposed clause.

2.9 Medical Practitioners Award 2010

[118] An exposure draft based on the Medical Practitioners Award 2010 (the Medical Practitioners Award) was initially published on 8 December 2014. Submissions in response to the exposure draft were received from various interested parties, and a conference was conducted by Commissioner Roe on 8 October 2015. The Commissioner’s report to the Full Bench concerning this conference was published on 9 October 2015 together with a revised summary of submissions. In this report submissions were requested in respect to one matter raised by the Australian Salaried Medical Officers Federation (ASMOF), and in response the ASMOF confirmed on 15 October 2015 that it no longer wished to pursue that matter. 149 A further report was published on 27 November 2015. A revised exposure draft reflecting the reports were published on 4 December 2015 together with a revised summary of submissions on 7 December 2015. A final report was published on 5 January 2016.

[119] We propose to adopt all of the agreed changes set out in the Commissioner’s reports which are reflected in the revised exposure draft published on the Commission’s website on 4 December 2015.

[120] The only outstanding matter is a proposal by the HSU 150 to include a provision similar to that included in the Nurses Award 2010 and Health Professionals and Support Services Award 2010 for ceremonial leave. It is noted that there is a proposal to vary the provision in those Awards and the Aged Care Award 2010 to include Torres Strait Islander in addition to Aboriginal tradition. There has been no opposition to this proposal and it has been included in the exposure draft for the other health awards which include ceremonial leave. We consider that matter of the proposal to include provision for ceremonial leave in the Medical Practitioners Award 2010 can be determined by this Full Bench upon the basis of interested parties’ written submissions. The parties generally supported this approach at the conferences before Commissioner Roe and this was confirmed at the directions hearing before Vice President Hatcher on 7 July 2016. The opportunity was provided for further written submissions, but the HSU and Ai Group elected to rely upon their earlier submissions.

[121] The variation sought is to include a provision that “An employee who is legitimately required by Aboriginal or Torres Strait Islander tradition to be absent from work for ceremonial purposes will be entitled to up to 10 working days unpaid leave in any one year, with the approval of the employer.”

[122] The HSU submits that the variation meets the modern award objective, and particularly that aspect of the objective in s.134(1)(c) of the FW Act of promoting social inclusion through increased workforce participation. 151 Recognition of ceremonial obligations, and an entitlement to leave in that event, will assist to facilitate and promote the participation of Aboriginal and Torres Strait Islander peoples in the workforce. The HSU submits that the failure to include the provision at the time of the making the Award was an oversight and it is anomalous to not include the provision when it is included in the awards for other professional employees who work alongside doctors; the Nurses Award 2010 and the Health Professionals and Support Services Award 2010.152

Ai Group rejects the submissions that the failure to include the provision was an oversight or an anomaly. In the process leading up to the making of the Award the exposure draft did not include ceremonial leave, and the National Aboriginal Community Controlled Health Organisation filed a submission on 16 February 2016 which argued for a separate health award for Aboriginal and Torres Strait Islander community controlled organisations. That submission made reference to specific entitlements including ceremonial leave in awards specific to Aboriginal Health Services. Ai Group submit that the awards for the Aboriginal Health Services referred to either did not cover medical practitioners or where they did cover medical practitioners they did not include ceremonial leave. 153

[123] This matter was referred to by the Full Bench when considering the content of the “health and welfare services awards” (which included the Nurses Award 2010, Aged Care Industry Award 2010, Health, Professionals and Support Services Award 2010 and Medical Practitioners Award 2010) as follows:

“[157] The National Aboriginal Community Controlled Health Organisation (NACCHO) submitted that the aboriginal and Torres Strait islander controlled health services deliver primary health care services and are operated by local aboriginal communities with elected boards of management. It argued that the services need separate regulation and it opposed the “mainstreaming” of staff through the award modernisation process which may have the affect (sic) of divorcing staff from the existing governance structures. It raised current award provisions dealing with self determination and ceremonial leave. We have included ceremonial leave provisions in the relevant awards. We deal with the question of separate award coverage at the end of this decision. [2009] AIRCFB 345 at [157].”

[124] We are not satisfied that this passage suggests that the Full Bench gave specific consideration to the question of whether or not it is was appropriate to include ceremonial leave in the Medical Practitioners Award 2010.

[125] We are satisfied that the inclusion of a provision for ceremonial leave is consistent with the objective at s.134(1)(c). It has been established that the inclusion of ceremonial leave is necessary and appropriate in the Nurses Award 2010 and the Health, Professionals and Support Services Award 2010. We are not satisfied that doctors covered by the Medical Practitioners Award 2010, particularly those engaged in Aboriginal Health Services, are or should be in any different position to Aboriginal and Torres Strait Islanders covered by the Nurses Award 2010 and the Health, Professionals and Support Services Award 2010. We will make the variation sought to include ceremonial leave in the exposure draft of the Medical Practitioners Award.

2.10 Nurses Award 2010

[126] Following the publication of the initial exposure draft in relation to this award on 8 December 2014 and the receipt of submissions from various interested parties, a conference was conducted by Commissioner Roe on 8 October 2015. The Commissioner’s report to the Full Bench concerning this conference was published on 9 October 2015 together with a revised summary of submissions. In the report submissions were requested in respect to a number of matters. A further report was published on 27 November 2015. A revised exposure draft reflecting the reports was published on 4 December 2015 together with a revised summary of submissions on 7 December 2015. A final report was published on 5 January 2016.

[127] We propose to adopt all of the agreed changes set out in the Commissioner’s reports which are reflected in the revised exposure draft published on the Commission’s website on 4 December 2015.

[128] We will refer the following proposed variations to the Casual and Part-time Employment Full Bench.

● the ACE 154 and Ai Group155 proposal to vary Clause 6.4(d) of the exposure draft to clarify how casual employee’s entitlement for working ordinary hours on weekends;
● the Australian Nursing and Midwifery Federation (ANMF) proposal to vary Clause 15.1(c) of the exposure draft to clarify entitlement to receive casual loading in addition to overtime penalty. 156

[129] The ANMF proposes that a minimum shift length should be introduced for all employees, including full-time employees. 157 Clause 10.4(c) of the exposure draft provides for a minimum two hour payment for casuals. The parties agree that this matter should be finalised after the Casual and Part-time Employment Full Bench has determined proposals in respect to a minimum shift length for part-time and casual employees. We agree with this approach. The ANMF proposal will be finalised by this Full Bench on the basis of written submissions after the outcome of the Casual and Part-time Employment Full Bench matters are known.

[130] The ANMF seeks to extend the application of clause 18.4 of the exposure draft in respect to public holidays to at least some part-time employees. 158 We will refer the proposed variation to the Public Holidays Full Bench.

[131] At the conferences before Commissioner Roe and following the hearing before Vice President Hatcher on 7 July 2016 the parties agreed that the following three matters should be determined on the basis of written submissions:

● The ANMF proposes to vary the classification definitions in Schedule A to update definitions and terminology to reflect current nomenclature regarding the regulation of the nursing profession. It also proposes to vary the definition of “Nursing Assistant” to remove “or enrolled” to reflect the current state of the law which they say does not allow enrolled nurses to supervise nursing assistants. 159
● The ANMF also proposes to vary Schedule B—Summary of Hourly Rates to include tables dealing with situations where more than one loading potentially applies, for example, where casuals perform overtime. 160
● The ACE proposes a variation to clause 6.4(d) of the exposure draft to clarify how casual employee’s entitlement for working ordinary hours on weekends. 161

[132] Interested parties were provided with the opportunity to make further written submissions in respect to the third of these matters. Only the ANMF 162 made a further submission. This Full Bench will determine the three matters on the basis of the parties’ written submissions.

[133] The ANMF’s proposal to vary the classification definitions in Schedule A is supported by the HSU and the Private Hospital Industry Employer Associations. 163 The ACE submitted (on 21 August 2015) no more than that the changes to the “Nursing Assistant” definition are substantive and they should be referred to a separately constituted Full Bench.164 No submissions in opposition to the merits of the changes have been received. We are satisfied that the variations should be made to the exposure draft. We consider that they simply update the definitions to reflect the current nomenclature and regulations applicable to the nursing profession.

[134] The ANMF submits that the Schedule B—Summary of Hourly Rates does not include tables dealing with all situations - for example it does not specifically deal with the situation where casuals perform overtime. We do not consider that there are any other issues which it is necessary to consider including in the tables other than perhaps the issue of the rates for casual overtime. The issue of whether or not casuals receive the casual loading in addition to the overtime penalty in this Award is contentious and has been referred to the Casual and Part-time Employment Full Bench. In these circumstances we do not propose to make any variation to the tables in Schedule B at this time.

[135] In relation to the issue concerning clause 6.4(d) raised by the ACE, the exposure draft currently provides as follows:

“6.4(d) A casual employee will be paid shift allowances calculated on the minimum rate of pay applicable to their classification and pay point, excluding the casual loading with the casual loading component then added to the penalty rate of pay.”

[136] The ACE on 28 January 2015 submitted that the provision should be made more specific about how the rate is calculated for weekend work. 165 They proposed the following:

“6.4(d) A casual employee will be paid shift penalties and Saturday and Sunday penalties calculated on the minimum rate of pay excluding the casual loading with the casual loading component then added to the penalty rate of pay.” 166

[137] The ANMF supports the clarification but proposes the following wording to take account of the changes made to the exposure draft since early 2015:

“6.4(d) A casual employee will be paid shift allowances and Saturday and Sunday rates calculated on the minimum rate of pay applicable to their classification and pay point, excluding the casual loading with the casual loading component then added to the penalty rate of pay.” 167

[138] There is no opposition to the proposal by the ACE that the provision should clarify the rates on weekends and we consider it appropriate. We propose to adopt the drafting of the provision suggested by ANMF and this variation will be reflected in the exposure draft.

[139] The following outstanding matters are likely to require the consideration of detailed submissions and evidence and consequently they will be referred to a separately constituted Full Bench:

● The ACE propose to amend clause 8.2(e) to allow for greater flexibility in rostering by adding the words “unless the employee otherwise agrees”. 168 This would enable rosters to be altered with less than seven days’ notice.

● The employer organisations seek a variation to clause 9.1 to include a facilitative provision to extend the period prior to a break from 5 hours to 6 hours.

● The ANMF is seeking that clause 9.1(a) be varied to specify that meal breaks must be taken between the fourth and the sixth hour after beginning work unless otherwise agreed by the majority and to permit the employer and the employee to agree to forfeit the meal break where shifts are less than six hours. 169

● The ANMF is seeking the insertion of a new clause 27.1(c) to provide for compensation while being effectively on call during a meal break. 170

● The ANMF is also seeking to extend the rest break between ordinary shifts in clause 9.3 and to introduce a penalty for breach. 171

● The ACE are seeking the insertion in clause 11.3(b) of a “remote communication allowance” for aged care employees where an employee provides advice or assistance remotely by telephone or other device. 172

● The ANMF proposes the insertion in clause 11 of an in-charge allowance for registered nurses and a leading hand allowance for enrolled nurses and nursing assistants. 173

● The HSU proposes a variation to clause 14.2 to ensure that shift allowances are payable on weekends. 174

● The HSU 175 and the ANMF176 seek variations to the overtime clause 15.1 to clarify that all work in excess of rostered hours is overtime and that each period of overtime stands alone.

● The ANMF 177 and the HSU178 seek a variation to clauses 15.5 and 15.6 to confirm that these provisions apply to situations where nurses are recalled to perform work remotely.

2.11 Passenger Vehicle Transportation Award 2010

[140] On 18 December 2014 an exposure draft for the Passenger Vehicle Transportation Award 2010 (PVT Award) was published, and a summary of the submissions received in relation to it was published on 14 October 2015. A conference of interested parties was conducted on 28 October 2015, which was the subject of a report published on 30 November 2015. That report set out a number of alterations to the exposure draft of a technical or drafting nature about which the parties agreed. It also identified five changes proposed by various parties which were not agreed which the parties sought to be referred to a separate Full Bench for determination, and the following three issues which had been referred to other Full Benches:

● minimum engagement for casuals (to be dealt with by the Casual and Part-time Employment Full Bench);
● payment of annual leave loading on termination (to be dealt with by the Annual Leave Full Bench); and
● claimed accident pay provisions (to be dealt with by the Transitional Provisions Full Bench).

[141] On 2 December 2015 a revised exposure draft was published incorporating the agreed changes referred to in the 30 November 2015 report.

[142] A further conference was conducted on 3 February 2016, and a report about this was published on 19 February 2016. That report recorded that the parties identified some defects in the 2 December 2015 exposure draft which required rectification, and that the fourth of the five proposed changes identified in the 30 November 2015 report (concerning the living away from home allowance in clause 11.3(d)(i) of the exposure draft) was now agreed. In relation to the four remaining issues, the Ai Group 179 in correspondence dated 7 July 2016 indicated that it considered that one change raised by it concerning clause 8.1(a) of the exposure draft was a technical issue which could be dealt with by the current Full Bench, and the remaining three issues should be referred to a separate Full Bench. At the directions hearing in relation to the Group 2 awards which occurred on 7 July 2016, the Australian Public Transport Industrial Association (APTIA) submitted that two of those other three issues could be dealt with simply by way of submissions (presumably before this Full Bench), but the Transport Workers’ Union of Australia (TWU) indicated that it wished to call evidence about those matters.180

[143] A further conference was conducted on 28 July 2016, and was the subject of a report published on 11 August 2016. That report indicated that it was agreed that an error in clause 13.2 (concerning the casual public holiday rate) should be corrected. It also confirmed that the issue concerning clause 8.1(a) was a technical/drafting issue which remained in dispute.

[144] Consistent with the parties’ joint position, Ai Group’s proposed change to clause 8.1(a) will be dealt with in this decision. 181 Clause 8.1 of the exposure draft published on 18 December 2014 provided:

“The ordinary hours of work for a full-time employee will be an average of 38 hours per week.”

[145] The revised exposure draft published on 2 December 2015 removed the words “for a full-time employee” consistent with what the parties had agreed at the 28 October 2015 conference. Ai Group proposes that the provision should be altered further to read:

“The ordinary hours of work for a full-time employee will be an average of up to 38 hours per week.” 182

[146] Ai Group submitted that the current clause 21.1 of the PVT Award is not confined to full-time employees, and applies to full-time employees and casual employees. In addition to the agreed deletion of the reference to full-time employees, it submitted that the words “up to” should be inserted to make it clear that casual employees were not required to work 38 hours per week. 183

[147] The TWU submitted in response that clause 8 of the exposure draft deals with hours of work and rostering for a full-time employee only, and the proposed variation was therefore not appropriate. It proposed that the position of casual employees be dealt with by a provision which stated: “The ordinary hours of work for a casual employee will be up to 38 hours per week”. 184

[148] We consider that clauses 21.1 and 21.2 of the PVT Award as it currently stands, although they do not mention full-time employees, are clearly constructed in relation to full-time employment and are not intended to have application to part-time or casual employment. These provisions are reflected in clause 8.1(a) to (c) of the exposure drafts. The exposure draft of 18 December 2014 sought to reflect the current positions but to clarify the position by adding an express reference to full-time employees. We consider the agreement of the parties to remove this reference was a mistake.

[149] Ai Group’s proposed variation should therefore not be adopted, but we consider that clause 8.1 should be modified to clarify the position with respect to part-time and casual employees. It is also necessary to ensure the PVT Award complies with s.147 of the FW Act, which provides:

“147 Ordinary hours of work

A modern award must include terms specifying, or providing for the determination of, the ordinary hours of work for each classification of employee covered by the award and each type of employment permitted by the award.

Note: An employee’s ordinary hours of work are significant in determining the employee’s entitlements under the National Employment Standards.”

[150] Accordingly we propose that clause 8.1 of the exposure draft be amended as follows:

“8.1 Ordinary hours and roster cycles

(a) The ordinary hours of work for a full-time employee will be an average of 38 hours per week.

(b) The ordinary hours of work for a full-time employee may be worked on any day of the week averaged as follows:

(i) 38 hours on up to five days within a work cycle not exceeding seven consecutive days;

(ii) 76 hours on up to 10 days within a work cycle not exceeding 14 consecutive days;

(iii) 114 hours on up to 15 days within a work cycle not exceeding 21 consecutive days; or

(iv) 152 hours on up to 20 days within a work cycle not exceeding 28 consecutive days.

(c) Ordinary hours for a full-time employee may be worked by:

(i) providing for one accrued rostered day off (eight hours) and 19 days of work over a continuous four week period. Provided that, by agreement between employer and employee, accrued rostered days off may be accumulated to a maximum of 10 such days over a 40 week period; or

(ii) in accordance with clause 8.1(b).

(d) The ordinary hours of work for a part-time employee shall be determined in accordance with clause 6.4(a)(i), (b), (c), (d) and (e).

(e) The ordinary hours of work for a casual employee will be up to 38 hours per week.

(f) Ordinary hours, exclusive of meal breaks, must not exceed 10 hours on any one day.”

[151] The above variation will be incorporated in a further exposure draft of the Award to be published in due course. Interested parties will then have the opportunity if they wish to make any further comment about it.

[152] We adopt the other changes agreed to by the parties, and they will also be incorporated into a further exposure draft to be published in due course. The three remaining proposed alterations which are not agreed shall be referred to a separate Full Bench will be constituted to deal with all outstanding issues arising from the five road transport modern awards (Road Transport Awards Full Bench). The issues are as follows:

● the APTIA claim for the award flexibility clause to be modified to specify that it applies to ‘hours of work’ and ‘breaks’; 185

●the TWU claim for a span of hours provision to be introduced; 186 and

● issues concerning the provisions in the PVT Award concerning two-driver operations.

2.12 Pharmacy Industry Award 2010

[153] As outlined in the Statement issued on 30 September 2015 187, the Pharmacy Industry Award 2010 (the Pharmacy Award) is being reviewed in a separate process to incorporate a ‘Plain English modern awards pilot’. Statements issued on 22 September 2015188 and 29 October 2015189 set out the process for that Pilot which will produce a plain language exposure draft based on the Pharmacy Award. The report on the plain language exposure draft including redrafted provisions was published on 21 April 2016 and a subsequent statement regarding the plain language process was issued on 11 August 2016190 which confirmed the timetable for dealing with the drafting issues in this award. A Statement issued on 15 July 2016191 also outlined how the substantive claims in this award are to be dealt with.

[154] The plain language exposure draft, along with any other issues relating to the review of the Pharmacy Award, are being considered by a separate Full Bench and have not been the subject of the general directions and proceedings for the remainder of the Group 2 awards.

2.13 Racing Industry Ground Maintenance Award 2010

[155] An exposure draft based on the Racing Industry Ground Maintenance Award 2010 was initially published on 15 December 2014 and following this, submissions were received from Ai Group 192, the AWU193 and Business SA194, primarily relating to technical and drafting issues. After the hearing on 7 October 2015, a revised summary of submissions was published identifying those matters that had been resolved by the Full Bench decisions discussed earlier and those withdrawn by the parties. The remaining issues were summarised as follows:

(i) Part-time employees – minor wording issue agreed between parties

(ii) Various issues re Casual employees

(iii) Ordinary hours – minor wording issue agreed between parties

(iv) Breaks – minor wording issue agreed between parties

(v) Late payment of wages – correction to typographical error not opposed by any party

(vi) Loss of clothing allowance – method of adjustment

(vii) Penalty rates – wording issue agreed between parties

(viii) Overtime – wording issue agreed between parties

(ix) Summary of hourly rates – correction to error in footnote agreed between parties; AWU sought inclusion of additional rates in the summary

(x) Summary of allowances – correction to typographical error not opposed by any party

[156] During the conference on 27 October 2015, the parties discussed an amended exposure draft and draft report and made further progress in narrowing the issues in contention. Following the conference a further amended exposure draft and a revised draft report were published and parties were provided 14 days to file further written submissions on the revised draft report and an amended exposure draft that included additional schedules of rates of pay that were agreed by the parties.

[157] In a submission of 9 November 2015, Ai Group suggested a change to clause 8.1 clarifying that the hours of work are up to 38 per week. 195 This change was made to the further revised exposure draft published on 1 December 2015. Ai Group also proposed changes to the column headings in schedule B to replace the term ‘ordinary hourly rate’ with ‘minimum hourly rate’.196 As this award contains a tool allowance at clause 11.3(e) that is payable for all purposes, consistent with the July 2015 decision197, the term ‘ordinary hourly rate’ will be retained to clarify that these payments must include any all purpose allowance to which an employee is entitled.

[158] Apart from minor typographical errors identified by Ai Group, 198 the AWU199 and AFEI200 in their submissions, that were corrected in a further revised exposure draft, there were no subsequent submissions received in relation to this award and all issues have been resolved.

2.14 Road Transport (Long Distance Operations) Award 2010

[159] An exposure draft based on the Road Transport (Long Distance Operations) Award 2010 was initially published on 18 December 2014 and submissions in response to the exposure draft were received from the Australian Road Transport Industrial Organisation 201, the Australian Workers’ Union202, Australian Business Industrial and NSW Business Chamber Ltd203, Business SA204, Australian Industry Group205 and the Transport Workers’ Union of Australia206. A summary of the parties’ submissions was published on 27 October 2015. Following a conference with interested parties before Senior Deputy President Hamberger held on October 2015, a report to the Full Bench was published on 30 November 2015. That report identified three substantive issues which have been referred to other Full Benches:

the insertion of a new subclause on part-time employment (to be dealt with by Part-time Employment Full Bench);

● the amendment of clause 14.2(c) to specify that leave loading is payable upon termination (to be dealt with by Annual Leave Full Bench); and

● the insertion of provisions on accident pay (to be dealt with by the Transitional Provisions Full Bench).

[160] The report also identified a number of other proposed alterations to the exposure draft which were supported by the parties, and nine proposed changes of a substantive nature which were not agreed and which the parties requested be referred to a separate Full Bench for determination. On 16 December 2015 a revised exposure draft prepared by the Ai Group which incorporated the agreed proposed changes was published.

[161] A further conference with interested parties was conducted by Senior Deputy President Hamberger on 3 February 2016, and a further report was published on 19 February 2016. In relation to the agreed changes incorporated in the revised exposure draft published on 16 December 2015, there were a small number of further changes agreed which are set out in the report. Additionally, agreement was reached in relation to two of the nine substantive proposed changes that remained in dispute, leaving seven substantive issues to be resolved. One of these issues, which involved a claim by the AWU, was subsequently withdrawn (at the directions hearing in relation to the Group 2 awards on 7 July 2016). 207

[162] The changes agreed by the parties will be adopted and will be incorporated into a further exposure draft to be published. The following six substantive issues, which all involve claims by the TWU, will be referred to the Road Transport Awards Full Bench:

● amend the definition of ‘long distance operation’; 208

● include a provision in clause 11.5(a)(iii) stating that the fatigue management plan is to be provided to the employee; 209

● add a provision to clause 12.1(c)(i) specifying a minimum payment, and that an employee is only to perform work under one award per day;

● add a new clause allowing for payment where an employee is required to travel as a passenger;

● add a new clause specifying the rates for employees engaged in ‘two up’ driving; and

● add a new clause providing for payment for drivers spending excessive amounts of time waiting during loading or unloading.

2.15 Road Transport and Distribution Award 2010

[163] An exposure draft based on the Road Transport and Distribution Award 2010 (the RTD award) was published on 18 December 2014, and an amended version published on 22 December 2014. Various submissions and correspondence were received from interested parties in relation to this exposure draft, and a summary of these was published on 27 October 2015. On 30 October 2015 a conference of interested parties was conducted by Senior Deputy President Hamberger, and a report to the Full Bench of the outcome was published on 30 November 2015. That report identified a large number of changes of a technical nature which were agreed. It also identified eleven changes which were not agreed and which the parties requested be referred to a separate Full Bench for determination.

[164] On 15 December 2015 a revised exposure draft prepared by the Ai Group which incorporated the agreed changes was published. A further conference of interested parties was conducted by Senior Deputy President Hamberger on 3 February 2016, and a report to the Full Bench concerning this conference was published on 19 February 2016. There were some further changes of a technical nature which were agreed arising out of the revised exposure draft. In relation to the previously disputed changes, one of the matters identified in the 30 November 2015 report was no longer pressed and agreement was reached about two of them, but two additional substantive matters were identified as being in dispute (making a total of ten disputed matters).

[165] Correspondence from the Ai Group dated 7 July 2016 identified seven of the disputed matters as substantive in nature, and the rest as technical or drafting matters which could be determined by this Full Bench. 210 There was a further conference of the interested parties concerning the technical/drafting matters on 28 July 2016, and a report concerning the conference was published on 11 August 2016. That report identified one of the disputed technical matters as no longer being pressed. That leaves two technical/drafting issues to be resolved by this Full Bench.

[166] The first concerns clause 8.1(a) of the amended exposure draft published on 22 December 2014, which relevantly provides:

“8.1 The ordinary hours of work for a full-time employee are an average of 38 per week to be worked on one of the following bases:

…”

[167] The Ai Group proposes that the provision be amended to read:

“8.1 The ordinary hours of work for a full-time employee are an average of up to 38 per week to be worked on one of the following bases:

…”

[168] The Ai Group submission on the point was essentially the same as that in relation to the hours clause in PVT Award, namely:

● the current hours clause in the award (clause 22.1) is not confined to full-time employees, and applies to part-time and casual employees;
● the drafting of clause 8.1 of the exposure draft potentially resulted in a breach of s.147, since the exposure draft did not include a term specifying or providing for the determination of ordinary hours of work for part-time and casual employees;
● the deletion of the reference to “a full-time employee” and the insertion of the words “up to” would ensure the provision’s application to part-time and casual employees. 211

[169] In response, the TWU submitted (as with the PVT Award) that the change proposed should not be made because it was clear that the existing clause 22.1 only applied to full-time employees. It similarly proposed that the problem raised by the Ai Group be dealt with by the addition of a provision (in the casual employment provision in clause 6.5) stating: “The ordinary hours of work for a casual employee will be up to 38 hours per week”. 212

[170] We do not accept that the current hours provision in clause 22.1 of the award applies to part-time and casual employees, since it refers to the ordinary hours of work being “an average of 38 per week” and provides for roster cycles over which such average hours can be worked. Clause 8.1 of the exposure draft clarifies rather than changes this. However it may be accepted that the exposure draft, like the current award, does not make clear what the ordinary weekly hours of work are for casual employees (although the maximum daily ordinary hours for all categories of employees are set out in clause 8.3 of the exposure draft. To resolve this issue, we propose that the following subclauses be added to clause 8.1 (with the subsequent subclause to be re-numbered):

“8.2 The ordinary hours of work for a part-time employee shall be determined in accordance with clause 6.4(a)(i), (b) and (c).

8.3 The ordinary hours of work for a casual employee will be up to 38 hours per week.”

[171] The above variation will be incorporated in a further exposure draft of the Award to be published in due course. Interested parties will then have the opportunity if they wish to make any further comment about it.

[172] The second issue concerns the calculation of the minimum hourly wage rates for oil distribution workers contained in clause 12.2 of the exposure draft. The Ai Group submitted that the hourly rate for such workers are higher in the exposure draft than that currently provided for in clause 15.2 of the award. This issue stems from what divisor should be utilised when calculating the hourly rate for oil distribution workers who ordinarily work a 35 hour week (clause 23.2). The Ai Group argued that it should not simply be assumed that the hourly rate of oil distribution workers can determined by dividing the standard weekly rate by 35 and it suggested that application of various clauses of the award to oil distribution workers requires further consideration.

[173] At the hearing on 7 July 2016, the TWU sought leave to file further written submissions in respect of this issue and the Vice President directed that any submissions were to be filed within 21 days. 213 Submissions were belatedly filed by the TWU on 2 September 2016. In those submissions the TWU contended that the current schedule of pay rates for oil distribution workers are correctly based on a 35-hour week.214 This therefore remains an issue in dispute.

[174] The changes previously agreed by the parties will be made, and a further revised exposure draft will be published reflecting these changes. The eight outstanding disputed substantive matters will be referred to the Road Transport Awards Full Bench. They are:

● the hourly wage rate rates for oil distribution workers; 215

● a claim by the Ai Group for the introduction of an ‘early morning shift’ clause; 216

● a claim by the Ai Group for the introduction of additional limitations on circumstances where the meal allowance is paid; 217

● amendments to clause 12.6 proposed by the Ai Group to introduce limitations to the application of the higher duties provision; 218

● amendments to the classification definitions sought by the TWU to recognise advances in heavy vehicle development and manufacturing;

● an amendment to the definition of ‘road transport and distribution industry’ proposed by the TWU which would affect the coverage of the award; 219

● a claim by the TWU for the addition of a definition of ‘driver’ which would affect the coverage of the award; 220 and

● a claim by the Ai Group for the introduction of an additional limitation on circumstances in which an employee is entitled to a meal break. 221

2.16 Seafood Processing Award 2010

[175] An exposure draft for this Award was published on 8 December 2014, and submissions were subsequently received from interested parties. A conference of interested parties before Deputy President Bull was held on 19 November 2015. A report to the Full Bench (the report) outlining the outcome of that conference was published on 8 December 2015. A large number of variations to the exposure draft of a technical/drafting nature were the subject of agreement at that conference. A revised exposure draft incorporating those agreed arising from the conference was published on 8 December 2015. The issues remaining outstanding were those identified as Issues (65) and (66) in the Report.

[176] On 14 December 2015, directions were issued to parties to provide an update as to the status of the discussions including what had been agreed and any outstanding issues. The following submissions were subsequently received:

(i) AMWU (28 January 2015)
(ii) AWU (18 February 2015)
(iii) Ai Group (4 March 2015)

[177] Following further discussions facilitated by the Commission there remains one outstanding issue in relation to the Seafood award, namely a variation proposed by the AMWU in relation to the ability (by agreement) to alter the specified spread of hours for day workers and span of hours for shiftworkers. 222 The AMWU seeks to place a restriction on the ability of a majority of employees under the existing Award provisions to agree to alter the spread of hours. The AMWU’s proposed change would continue to allow the spread/span of hours to be changed by agreement but not the total duration of the spread or span.

[178] The AWU supports the AMWU’s variations. 223 The Ai Group opposes the variations, arguing that the variations amount to a substantive claim and is inconsistent with a number of aspects of the modern award objective in s.134(1) of the FW Act.224

[179] In relation to day workers, clause 8.2(a) of the exposure draft provides that the ordinary hours of work for a day worker are to be worked between 6.00 am and 6.00 pm Monday to Saturday. Under clause 8.6 the arrangement of the ordinary hours of work is reached via agreement with the employer and majority of employees, with ordinary hours in any one day being between 8 and 12 hours

[180] Clause 8.2(c) allows for variation of the spread of hours for day workers as follows:

“The spread of hours may be altered by up to one hour at either end of the spread, by agreement between an employer and the majority of employees concerned or, in appropriate circumstances, between the employer and an individual employee.”

[181] The AMWU submits that clause 8.2(c) should be clarified to highlight that while the spread of hours can be changed, its duration cannot, by inserting the words “but may not be altered to increase the spread of hours beyond 12 hours a day”. 225 The clause would read:

“The spread of hours may be altered by up to one hour at either end of the spread but may not be altered to increase the spread of hours beyond 12 hours per day, by agreement between an employer and the majority of employees concerned or, in appropriate circumstances, between the employer and an individual employee.” [underlining added]

[182] In relation to shiftworkers, there is no ‘spread of hours’ clause in which their ordinary hours are to be worked. However, clause 13.3 of the exposure draft defines the respective spans of hours in which afternoon and day shifts must finish. Clause 13.4 then provides that by agreement the employer and a majority of employees may agree to alter the span of hours over which shifts may be worked by up to one hour at either end of the span:

“13.4 By agreement between the employer and the majority of employees concerned or in appropriate cases an individual employee, the span of hours over which shifts may be worked may be altered by up to one hour at either end of the span.”

[183] The AMWU submits that clause 13.4 should be clarified to highlight that while the span of hours can be changed, its duration cannot, and proposes the additional wording of “but not both” at the end of the clause. 226 The clause would read:

“By agreement between the employer and the majority of employees concerned or in appropriate cases an individual employee, the span of hours over which shifts may be worked may be altered by up to one hour at either end of the span, but not both.” [underlining added]

[184] Ai Group opposes both variations. It submits that they are substantive variations to the Award rather than ones which seek to ‘clarify’ the operation of the provision, and that the terms of the Award as it currently stands do not preclude the extension of the span of hours at both ends. 227

[185] Issues dealing with the spread or span of hours have been advanced by the AMWU in other awards under review, with Ai Group opposing the claims.

[186] The Hydrocarbons Industry (Upstream) Award 2010 provides for a spread of hours between 6.00 am and 6.00 pm in which the ordinary hours of up to 12 hours can be worked. That award allows agreement with the employer and employees to alter the spread of hours. The AMWU sought to insert a restriction of one hour at each end of the span and that there be no more than 12 ordinary hours per day. In the October 2015 Decision, the Full Bench rejected the proposed change of limiting any alteration to one hour at one end only of the span on the basis that it would be a change from the existing award with no demonstrated necessity for the change. The Full Bench also held there was no need to limit a variation to the ordinary hours worked as the clause did not allow for a change in the ordinary hours worked, as it was concerned with the spread of hours only. 228

[187] The Full Bench also dealt with a claim by the AMWU to relating to the Pharmaceutical Industry Award 2010. That award currently allows the spread of hours to be altered by up to one hour at either end of the spread by agreement between the employer and a majority of employees. The AMWU submitted that the clause was ambiguous as the word ‘either’ can be interpreted as alteration at one end or at both ends. The AMWU proposed to insert the words ‘subject to maintaining a 9.5 hour spread’ which are the existing spread of hours. Ai Group submitted that this issue may arise in many awards and therefore have implications in those awards. On this basis the Full Bench stated in the October 2015 decision:

“Given Ai Group’s submission the determination of this issue (spread of hours) may have implications for other awards. Accordingly we do not propose to determine this issue at this time. The issue will be reconsidered at the conclusion of the Award stage of the Review, together with any other award provisions where a similar issue has arisen.” 229

[188] We consider that the issue raised by the AMWU’s proposal here is the same as that which arose in relation to the Pharmaceutical Industry Award 2010. It should therefore likewise be dealt with at the conclusion of the Award stage of the Review, together with the Pharmaceutical Industry Award 2010 and any other award provisions where a similar issue has arisen. This matter can be distinguished from the decision concerning the Hydrocarbons Industry (Upstream) Award 2010, where the existing provision did not contain the words ‘at either end’.

[189] We would simply observe at this stage that the word “either” as used in clause 8.2(c) and 13.4 is ambiguous. According to its dictionary definition, it may mean one or both of two possibilities, depending on the context. For example the definition in the Macquarie on-line dictionary is as follows:

“adjective 1. one or the other of two: you may sit at either end of the table. 2. each of the two; the one and the other: there are trees on either side of the river. –pronoun 3. one or the other; not both: take either; either is correct.”

[190] Interested parties should address the issue of ambiguity when the matter arises for final consideration at the conclusion of the Award stage of the Review.

2.17 Storage Services and Wholesale Award 2010

[191] An exposure draft based on the Storage Services and Wholesale Award was published by the Commission on 8 December 2014, and submissions in respect of the draft were received from interested parties. A summary of submissions document was subsequently published on 17 March 2015 and revised on 30 September 2015. At the hearing on 7 October 2015, the Ai Group had undertaken to file in the Commission a revised exposure draft and summary of submissions based on discussions between the interested parties. These documents were received, and were published on 2 November 2015. 230 These documents in particular incorporated the changes agreed between the Ai Group, the Shop, Distributive and Allied Employees Association (SDA), the AWU, the National Union of Workers (NUW), ABI and NSW Business Chamber, the AFEI and Business SA.

[192] On 19 November 2015, Deputy President Bull conducted a conference in respect of any outstanding issues in the revised exposure draft and the outcomes of which was published in a report to the Full Bench on 7 December 2015. The Deputy President facilitated a further conference on 5 January 2016 at the request of the Ai Group, the SDA and the AWU to discuss consent resolutions to substantive and outstanding issues and an updated report to the Full Bench was subsequently published on 15 March 2016. The updated report also contained a direction which provided parties with a further opportunity to file written submissions in relation to the outstanding issues by 22 January 2016.

[193] In correspondence dated 15 March 2016, the Deputy President directed parties to provide a final update as to the status and outcome of the discussions initially by 22 March 2016 but an extension was granted until 8 April 2016, in respect of the six outstanding issues:

(1) the definition of full-time employees;

(2) the application of the higher duties allowances,

(3) the ‘appropriate rate’ to be used for the purpose of calculating overtime and penalty rates for employees performing call-back work;

(4) the definition of Wholesale employee level 4;

(5) the summary of hourly rates of pay for Saturdays and Sundays; and

(6) the insertion of an annualised salary provision in the award.

[194] The Ai Group on 19 March 2016 requested that in respect of issues (1), (2) and (4) of the outstanding issues, it be given an opportunity to file comprehensive written submissions and to respond to the submissions filed by the AWU on 22 January 2016. 231 The Deputy President issued directions on 24 June 2016 for the filing of any final submissions in respect of the outstanding issues. The Ai Group withdrew its claim in respect of issue (6) in submissions dated 8 April 2016, and accordingly that is no longer a live issue.232 In relation to the third issue (which was raised by the AWU), this has now been resolved by agreement on the basis that there should be no change to the existing provisions.233

[195] A number of non-controversial technical and drafting issues were agreed between the parties including changes to reflect recent Full Bench decisions. A number of these changes were agreed to on the basis of providing consistency and to remove ambiguity. The agreed changes identified in the 7 December 2015 report to the Full Bench have been reflected in the latest exposure draft of 19 April 2016. Save for the issue below in relation to the close down provision, we will adopt the agreed changes between the parties as outlined in the 15 March 2016 and an updated exposure draft incorporating these changes will be issued in due course.

[196] While the parties agreed to replace the close down provision in the exposure draft with the wording in the current award, we have decided that clause 17.4(c) (which replicates clause 26.6(c) in the current award) should be deleted. The provision provides:

“the next 12 monthly qualifying period of employment for every such employee will commence from the date of closing”.

[197] Such a clause is inconsistent with the NES. 234 Section 87(2) of the FW Act provides that annual leave accrues progressively rather than on an annual basis so a provision referring to a ‘qualifying period’ for an annual leave entitlement is misleading and should be deleted.

[198] In relation to the fourth outstanding issue identified above, the Ai Group proposed an amendment to clauses A.7 and A.8 contained in Schedule A of the 19 April 2016 exposure draft. The proposed variations relate to Wholesale Level 3 and Level 4 employee classifications. The Ai Group submitted that the classifications should be reworded to clarify employees who are/are not covered by these classifications. The Ai Group, the Unions (SDA, AWU and NUW), ABI and the NSW Business Chamber have reached an agreement that the classification definitions for ‘Wholesale Employee Level 3’ and ‘Wholesale Employee Level 4’ be varied as proposed by Ai Group. 235 The Ai Group variation will be adopted and included in the updated exposure to draft.

[199] In relation to the first issue, in joint submissions filed by the AWU, the SDA and the NUW (the Unions) on 22 January 2016, it was submitted that the definition of a ‘Full-time employee’ contained in clause 11.2 of the current Storage Services award and replicated in the exposure draft at clause 6.2 is not compliant with s.147 of the FW Act as it fails to specify the ordinary hours of work for full-time employee. 236 The AWU proposed that the current definition should be amended to read ‘A full-time employee is an employee who is engaged to work an average of 38 ordinary hours per week’.237 At the conference of 5 January 2016 the Ai Group proposed that a consent position could be reached if the words ‘and paid at the weekly wage as per clause 10’ was to be inserted into the AWU’s proposed definition. The Ai Group stated that the AWU’s proposal may give rise to unintended consequences as the Storage Services award in its current form does not require full-time employees to work any particular number of hours.238 The AWU submitted that the additional words are not necessary.239

[200] It should also be noted that the exposure draft at clause 6.3 makes reference to the hours worked by a part-time employee by providing that part-time employees work less than full-time hours of 38 hours per week, hence ipso facto full-time employees work 38 hours a week. Additionally, the ordinary hours of work referred to at clause 8.1 refer to an average of 38 hours per week averaged over 4 weeks. Accordingly, the definition of a full-time employee shall be amended to read ‘A full-time employee is one engaged by the week to work an average of 38 ordinary hours averaged over 4 weeks’. This amendment reflects the existing provision of the Storage Services award and thus does not require cross-referencing within the award to ascertain the hours a full-time employee works.

[201] In relation to the second issue, the Award as it currently stands provides for a ‘Higher Duties Allowance’ at clause 19 and at clause 13 of the exposure draft which applies to ‘weekly employees’. The Unions submitted that the higher duties allowance should apply to all employees, including casuals who are not employed on a weekly basis. 240 This issue was dealt with in the Full Bench decision of 23 October 2015241 at paragraph [160] to [171] in respect of the Pharmaceutical Industry Award 2010. The Full Bench stated that an entitlement to higher duties allowance should apply to all employees carrying out duties in a higher classification.

[202] The Ai Group cited that difficulties in respect of casual employees will arise if the reference to weekly employees is removed from the current higher duties clause as the clause is drafted to accommodate employees engaged on a weekly basis as opposed to a casual contract. The Ai Group identified that the following clauses are problematic for casual employees:

● Clause 13.1(c) refers to being paid a full day’s pay at the higher rate when over three hours are worked in the higher classification.
● Clause 13.1(c) refers to a full week’s wages being paid at the higher rate when 20 hours in a week have been worked at the higher classification.
● Clause 13.2 refers to not suffering any reduction in wages during any week for performing work at a lower classification for part of the week. 242

[203] The Ai Group proposed that the following additional casual specific subclauses should be inserted to more fairly address the higher duties issue for casual employees:

“13.4 If, at the direction of their employer, a casual employee performs the work of two or more classifications on the same day or shift, they will be entitled to the hourly rate applicable for the classification relevant to the work that the employee spends the largest proportion of their time undertaking on the day or shift.

13.5 A casual employee will only be entitled to receive the hourly rate applicable to a particular classification if they have the required skills referred to in the appropriate classification and are utilising those skills.” 243

[204] The approach undertaken by the Full Bench in the Pharmaceutical Award will be applied to this award, being that all employees carrying out duties in a higher classification should be paid the higher rate. However due to the issues identified by the Ai Group the entitlement for casuals to receive this benefit should be reflected in separate subclauses as the existing wording cannot simply be amended by removing the reference to the word “weekly’ without resulting in anomalies for casuals. On this basis, the two proposed Ai Group subclauses shall be inserted to provide that casual employees receive higher duties when working in a higher classification consistent with the earlier Full Bench decision but also allowing for the peculiarities of casual work.

[205] In relation to the fifth issue, the parties which attended the 5 January 2016 conference agreed that in Schedule B.1.3 of the exposure draft, there should be a separate column for ‘Saturday rates’, but the parties were unable to agree on how these rates should be calculated. The Ai Group submitted that the Saturday rate should be calculated at 150% of the minimum hourly rate for all Saturday work, including overtime. 244 The Unions submitted that it should be 150% for the first two hours and then 200% for any hours worked thereafter.245

[206] The Storage Services award as it currently stands, at clause 24.5(a)(i) provides that ‘All time worked on a Saturday must be paid for at the rate of time and one half.’ The payment of overtime is prescribed at subclause 24.1 which states that ‘All time worked by an employee in excess of or outside the ordinary hours of work prescribed by this Award will be paid at the rate of time and a half for the first two hours and double time after that.’

[207] The Unions submitted that the Saturday overtime entitlement should be as reflected at subclause 24.1, with double time being paid after the first 2 hours. The Unions’ submitted that the only circumstance in which time and half can be continuously paid on a Saturday is where there is agreement that work performed on a Saturday constitutes an employee’s ‘ordinary hours of work’ pursuant to clause 25.3(d). 246 In support of its argument the Unions relied on the following factors:

● The Payment for Overtime clause refers to double time after the first two hours (clause 24.1). 247

The Payment for Overtime clause refers to all time in excess of or outside ordinary hours (unless by agreement) which must include a Saturday as ordinary hours in the Award are prescribed as being between Monday and Friday (clauses 22.1 and 25.3(c)). 248

Shiftworkers can be paid time and one half for work on a Saturday only where agreement is reached as per subclause 25.3(d). 249

● Overtime for week day work is paid at double time after the first two hours. 250

● During the Award Modernisation process both the NUW and the Ai Group agreed that overtime on a Saturday was to be paid at double time after the first two hours. 251

[208] The Ai Group submitted that the payment of double time after two hours work on a Saturday would be a substantial change to the Storage Services Award and it was not simply a drafting or technical change. It argued that the specific provision under subclause 24.5 states that all time worked on Saturday must be paid at the rate of time and one half prevails based on the specific overriding the general principle. This is said to be consistent with the specific reference at subclause 24.5(b) which states that all time worked on Sunday is to be paid at double time. 252

[209] In our view subclause 24.1 Payment for Overtime and subclause 24.5(a) penalty rate for Saturday work are intended to provide for two separate entitlements, one, where ordinary hours are worked on a Saturday (by agreement) and paid at time and one half, and the other, where overtime is worked on a Saturday and double time is paid after the first two hours. If this were not the case then an employee working more than 2 hours overtime on a week day would receive a greater penalty than when working more than 2 hours on a Saturday.

[210] This outcome is consistent with what was put by the parties in the making of the Storage Services 2010 Modern Award (see 22 June 2009 Transcript at PN533, PN562-3). There was no comment from the Full Bench that it intended to provide a lesser entitlement. As such the Storage Services award shall be amended not to provide a superior benefit for Saturday overtime but to clarify the entitlement at subclause 24.5(a)(i) as applying to the working of ordinary hours. As such, clause 24.5(a)(i) of the exposure draft will be amended to read:

“All ordinary time worked on a Saturday must be paid for at the rate of time and one half.”

[211] The Ai Group raised the same issue concerning the payment of wages on termination in clause 11.3 of the exposure draft as it did in relation to the Graphic Arts, Printing and Publishing Award 2010. The Ai Group advised on 26 April 2016 that the same issue arises in respect of nine modern awards in total. 253 The same conclusion will apply, namely that the matter has been referred to the Payment of Wages Full Bench for determination.

[212] The same issue concerning the alteration by agreement of the spread of hours by one hour at either end in clause 8.2 of the exposure draft has arisen as it did in relation to the Seafood Processing Award 2010 discussed above. The same conclusion shall apply – that is, it will be dealt with at the conclusion of the Award stage of the Review, together with the Pharmaceutical Industry Award 2010 and any other award provisions where a similar issue has arisen.

2.18 Transport (Cash in Transit) Award 2010

[213] An exposure draft for this award was published on 18 December 2014, and submission and correspondence from interested parties were subsequently received. On 30 October 2015 a conference of interested parties was conducted by Senior Deputy President Hamberger, and a report concerning the outcome of this conference was published on 30 November 2015. That report identified a range of proposed changes to the exposure draft which were agreed, and identified a further six matters raised by various parties which were not agreed. On 2 December 2015 a further exposure draft incorporating the agreed matters was published.

[214] A further conference before Senior Deputy President Hamberger occurred on 3 February 2016, with a further report being published on 19 February 2016. That report identified that two of the six non-agreed matters which had earlier been identified were no longer pressed. There was an additional conference of interested parties conducted on 28 July 2016, with a report of that conference being published on 11 August 2016. That report identified that, of the four remaining disputed changes, three were no longer pressed, and the fourth was the subject of agreement. That agreed change will be adopted in the award to be made. There are no further issues of a technical/drafting nature raised by the parties which are outstanding.

2.19 Waste Management Award 2010

[215] An exposure draft for this award was published on 18 December 2014, and was subsequently the subject of comment in submissions received from interested parties. A summary of those submissions was published on 14 October 2015. On 28 November 2015 a conference of interested parties was conducted, and a report concerning that conference was published on 30 November 2015. That report set out a number of changes to the exposure draft proposed by a number of parties which were the subject of agreement, and also identified eight issues of a more substantive nature which were not agreed and required determination. It also set out the following three issues which had already been referred to other Full Benches:

● the issue of casual conversion (to be dealt with by the Casual and Part-time Employment Full Bench);
● the inclusion of accident pay provisions (to be dealt with by the Transitional Provisions Full Bench); and
● the issue of part-day public holidays (to be dealt with by the Public Holidays Full Bench).

[216] A further exposure draft incorporating the technical/drafting alterations which were the subject of agreement was published on 2 December 2015.

[217] There was another conference of interested parties conducted on 3 February 2016, and a report about this was published on 19 February 2016. This identified that of the eight proposed changes which were not the subject of agreement, one was now the subject of agreement and one (concerning call-back) was withdrawn. Additionally, two issues not referred to in the 30 November 2015 report were raised, of which one was the subject of agreement (alterations to clause 20.5 of the exposure draft concerning payment for work on public holidays) and one which was not agreed (concerning payment of overtime to casuals under clause 6.5(h) of the exposure draft).

[218] In correspondence from Ai Group published on 7 July 2016, five of the seven remaining disputed issues were characterised as substantive in nature, with the remaining two being of a technical or drafting nature. That correspondence identified that Ai Group no longer opposed the TWU proposal in relation to one of the two issues in the latter category. That proposal was to delete from clause 16A.1 of the exposure draft published on 2 December 2015 (which reflected clause 31.2 of the current award) the words “Subject to any custom now prevailing under which employees are required regularly to hold themselves in readiness for call-back”. 254

[219] The remaining issue in the latter category was the subject of a further conference of the parties on 28 July 2016. In the report of this conference published on 11 August 2016, it was recorded that it was agreed that clause 6.5(h) of the exposure draft should be deleted and replaced with the following:

“In addition to normal overtime rates, a casual employee, while working overtime or outside ordinary hours, shall be paid on an hourly basis one thirty-eighth of the relevant minimum wage prescribed by the award, plus 10% of the ordinary hourly rate for the work performed.”

[220] The proposed wording replicates clause 14.5 of the award as it currently stands. We do not accept that this agreed alteration to the exposure draft should be made. The current provision is defective because it appears to provide that casual employees working overtime or outside ordinary hours must be paid the minimum hourly rate plus 10% in addition to the overtime penalty rate prescribed in clause 16.1 (which are 150% of the ordinary hourly rate for the first two hours and 200% thereafter). It appears that the difficulty with clause 6.5(h) of the exposure draft which the parties seek to correct is that it appears to provide that the 10% is to be calculated on the loaded penalty rate and not on the ordinary hourly rate. If so, clause 6.5(h) of the exposure draft should therefore be amended to provide:

“A casual employee working overtime or outside ordinary hours will be paid the overtime rate in clause 16—Overtime and an additional amount of 10% of the ordinary hourly rate for the work performed.”

[221] If any interested parties indicate that they disagree with this variation to the exposure draft, it will be referred to the Road Transport Awards Full Bench for determination. The other agreed changes are accepted to be appropriate and will be incorporated into a further exposure draft to be published.

[222] The remaining substantive issues will be referred to the Road Transport Awards Full Bench for determination. They are as follows:

● a claim by the TWU to insert a requirement that employers notify employees of their classification at the time of engagement; 255

● an amendment proposed by the TWU to allow for paid meal breaks when an employee is working overtime; 256

● a TWU claim for a new meal time provision; 257

● a TWU claim for provision of a paid meal break of 20 minutes for shiftworkers; 258

● clause 16.4 (clause 30.4 of the current Award) identify that employees recalled to work overtime must be paid at overtime rates; and

● include a new provision defining ‘shiftworker’ in a way which would result in an entitlement to an additional week’s annual leave.

3. Next steps

[223] The outstanding issues in the Alpine Resorts Award 2010; Animal Care and Veterinary Services Award 2010; Fire Fighting Industry Award 2010; Graphic Arts, Printing and Publishing Award 2010; Health Professionals and Support Services Award 2010 and the Nurses Award 2010; Road Transport (Long Distance Operations) Award 2010, Road Transport and Distribution Award 2010 and the Waste Management Award 2010 have been referred to various separately constituted Full Benches for determination as earlier specified.

[224] Further revised exposure drafts for each award in Group 2 incorporating the changes outlined in this decision and any determinations arising from the Annual leave and Award flexibility common issues proceedings will be published in the week commencing 17 October 2016.

[225] In respect of the second issue identified at paragraph [81] above in the Fire Fighting Industry Award 2010, we intend to determine the issue by way of written submissions only and any interested parties are directed to file any further written submissions by 5.00 pm on Friday 18 November 2016.

[226] Parties are asked to provide feedback on the revised exposure drafts by 5.00 pm on Friday 18 November 2016. Feedback should be submitted in writing to [email protected].

[227] The Review is an iterative process and parties will continue to be given further opportunities to comment on revised exposure drafts and any further proposals to vary provisions in modern awards. The review of each award is not considered complete until the final determinations are issued for that award.

PRESIDENT

Appearances:

M Harmer for the Australian Ski Areas Association

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

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

J Light for the Australian Federation of Employers and Industry.

J Arndt for the Thredbo Chamber of Commerce, Australian Business Industrial and the New South Wales Business Chamber.

D Tyler, Z McQuillan and K Scott for Australian Business Industrial and the New South Wales Business Chamber.

D Astley for the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU).

G Kusuma for the New South Wales Farmers’ Association.

S Crilly for Fairfax Media Limited and its subsidiaries.

C Delaney for the Australian Security Industry Association Ltd.

D Mujkic for the National Union of Workers.

M Galbraith for the Shop, Distributive and Allied Employees Association.

K Muddagouni for the Mount Hotham Resort Management Board.

R Hall-Boman for the Printing Industries Association of Australia.

B Pole for Western Australian Newspapers Limited.

L Svendsen for the Health Services Union of Australia.

M Robson for United Voice.

M De Vecchis for the Australian Salaried Medical Officers Federation.

G Boyce for the Aged Care Employers.

J Bundara and L Houlihan for the Chiropractors Association of Australia.

A McCarthy for the Australian Nursing and Midwifery Federation.

M Rizzo for the Australian Municipal, Administrative, Clerical and Services Union.

M Anthony for The Association of Professional Engineers, Scientists and Managers, Australia.

E Van Der Linden for the South Australian Chamber of Commerce and Industry trading as Business SA.

D Neutze for the Australian Veterinary Association.

L Fisher and L Hepworth for the Private Hospital Industry Employers’ Associations.

W Carr and T Walton for the Transport Workers’ Union of Australia.

S Maxwell for the Construction, Forestry, Mining and Energy Union.

I MacDonald for the Australian Public Transport Industrial Association.

M Dunne for the Waste Contractors & Recyclers Association of NSW.

P Ryan for the Australian Road Transport Industrial Organization.

C Gardner for Coles Supermarkets Australia Pty Ltd.

Hearing details:

2015.

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

October 7 and 8.

ATTACHMENT A—LIST OF GROUP 2 AWARDS

Extract from Attachment A to Full Bench Decision of 17 March 2014 [2014] FWCFB 1788; subgroups as per Attachment A of Statement on 6 May 2015 [2015] FWC 3148.

Group 2 (19 awards)

 1   [2014] FWCFB 9412.

 2   [2015] FWCFB 4658.

 3   [2015] FWCFB 6656.

 4   [2015] FWCFB 3023.

 5   [2015] FWCFB 4466, [2015] FWCFB 6847, [2016] FWCFB 2602, [2016] FWCFB 4258 and [2016] FWCFB 4579.

 6   [2015] FWCFB 3406, [2015] FWCFB 5771, [2016] FWCFB 3177 and [2016] FWCFB 3953.

 7   [2015] FWCFB 2575 and [2015] FWCFB 3523.

 8   Fair Work Ombudsman, Correspondence, 24 November 2014.

 9   [2014] FWC 8837.

 10   See for example, joint submission of 19 December 2014 and Transcript of 22 December 2014 at PN 326.

 11   [2014] FWCFB 9412, [2015] FWCFB 4658, [2015] FWCFB 6656.

 12   [2015] FWCFB 7236.

 13   Falls Creek and Mount Hotham Chamber of Commerce, Submission, 28 January 2015.

 14   Ai Group, Submission, 28 January 2015.

 15   Australian Workers’ Union (AWU), Submission, 28 January 2015.

 16   Australian Ski Areas Association (ASAA), Submission, 30 January 2015; ASAA, Submission, 4 March 2015; ASAA, Submission - substantive, 15 July 2015; ASAA, Submission, 15 July 2015.

 17   Mount Hotham Resort Management Board, Submission, 27 February 2015.

 18   [2014] FWCFB 9412 at [84]-[85].

 19   Falls Creek and Mount Hotham Chamber of Commerce, Submission, 28 January 2015 at [4] - [8], [14], [18] [26] and [29].

 20   Falls Creek and Mount Hotham Chamber of Commerce, Submission, 28 January 2015 at [4] - [8], [14], [18] [26] and [29].

 21   Mount Hotham Resort Management Board, Submission, 27 February 2015 at [1.7]-[1.8] and [1.11].

 22   Thredbo Chamber of Commerce and the Perisher Resorts Chamber of Commerce, Submission, 10 May 2015. See also New South Wales Business Chamber, Australian Business Industrial and Thredbo Chamber of Commerce, Submission, 12 October 2015, p. 1-2.

 23   Thredbo Chamber of Commerce and the Perisher Resorts Chamber of Commerce, Submission, 10 May 2015.

 24   New South Wales Business Chamber, Australian Business Industrial and Thredbo Chamber of Commerce, Submission, 12 October 2015, p. 1-2.

 25   ASAA, Submission, 30 January 2015 at [8]; ASAA, Submission, 4 March 2015 at [6]; ASSA, Submission at 21 August 2015 [3].

 26   ASSA, Submission , 21 October 2015 at [1.4]. See also ASSA, Correspondence – outstanding issues, 21 March 2016.

 27   Deputy President Bull, Report to the Full Bench, 7 December 2015 at [11]. See also AWU, Correspondence - outstanding issues, 22 March 2016; ASSA, Correspondence – outstanding issues, 21 March 2016.

 28   Ai Group, Correspondence, 19 March 2016.

 29   Australian Veterinary Association (AVA), Response to Exposure Draft, 28 January 2015.

 30   AWU, Submissions on Exposure Draft, 28 January 2015.

 31   Ai Group, Submission, 28 January 2015.

 32   Australian Federation of Employers and Industry (AFEI), Submission, 28 January 2015.

 33   Transcript of 7 July 2016 at PN 78-95.

 34   AFEI, Submission, 25 July 2016.

 35   AVA, Submission, 15 July 2016; AVA, Submissions – outstanding issues, 20 July 2016.

 36   Ai Group, Submission, 28 January 2015 at [49] and 50].

 37   AFEI, Submission, 28 January 2015 at [40]; AFEI, Submission, 25 July 2016.

 38   AVA, Submissions – outstanding issues, 20 July 2016 at [1].

 39   AFEI, Submission, 25 July 2016 at [2]-[4].

 40   AFEI, Submission, 25 July 2016 at [5].

 41   AVA, Submission, at [30]; AVA, Submissions – outstanding issues, 20 July 2016 at [1].

 42   AVA, Submission, 15 July 2015 at [30].

 43   Report to the Full Bench, 9 October 2015 at [19].

 44   AVA, Submissions – outstanding issues, 20 July 2016 at [2].

 45   UV, Submission in reply, 21 August 2015 at p. 1; see also UV, Submission, 15 July 2015 at p. 3.

 46   Association of Professional Engineers, Scientists and Managers, Australia (APESMA), Submission, 16 July 2016 at [2].

 47   AWU, Submission, 28 January 2015 at [14].

 48   AVA, Submission, 15 July 2015 at [4]. See also AVA, Response to Exposure Draft, 28 January 2015at [14].

 49   AFEI, Reply submission, 1 September 2015 at [9]-[12].

 50   Ai Group, Submission, 28 January 2015 at [45]-[48]. See also Ai Group, Reply submission, 4 March 2015 at [32].

 51   Veterinary Nurses Council of Australia, Submission, 17 August 2015; Veterinary Nurses Council of Australia, Submission in reply, 26 October 2015.

 52   APESMA, Submission, 16 July 2015 at [2].

 53   APESMA, Submission – clause 16.2, 26 July 2016.

 54   An individual, Submission, 3 February 2016.

 55   Ai Group, Submission, 28 January 2015.

 56   Business SA, Submission, 28 January 2015.

 57   AWU, Submission, 28 January 2015.

 58   Austuna and others, Initial comments on exposure draft, 28 January 2015.

 59   See FWC’s correspondence of 14 December 2015.

 60   Business SA, Submission, 28 January 2015.

 61   The amount has been increased to $16.38 since the exposure draft was issued.

 62   AWU, Submission, 28 January 2015.

 63   NSW Farmers’ Industrial Association (NSWFA), Reply submission, 17 February 2015.

 64   NSWFA, Reply submission, 21 August 2015.

 65   AWU, Submission, 28 January 2015 at [11].

 66   Business SA, Reply submission, 28 August 2015; Business SA, Submission, 28 January 2015; Business SA, Proposed Variation, 25 November 2014 at p. 4.

 67   Business SA, Proposed Variation, 25 November 2014 at p. 4.

 68   Transcript of 7 October 2015 at PN294.

 69   Ai Group, Submissions, 4 February 2015.

 70   AWU, Submission, 5 February 2015.

 71   AWU, Submission – revised exposure draft, 13 November 2015.

 72   Ai Group, Submission –revised exposure draft, 13 November 2015.

 73   UV, Submission – revised exposure draft, 13 November 2015.

 74   Ai Group, Submission – revised exposure draft, 13 November 2015 at [3] and [15].

 75   AWU, Outline of Submissions – Revised Exposure Draft and Draft Report, 13 November 2015 at [3].

 76   Transcript 11 December 2015 at PN187–196

 77   AWU, Submission, 15 July 2015 at [3]-[4]; AWU, Reply submission, 2 March 2015 at [3]; AWU, Submission, 5 February 2015.

 78   AWU, Submission, 15 July 2015 at [3]-[6].

 79   UV, Submission, 19 October 2015; UV, Submission – revised exposure draft, 13 November 2014.

 80   Ai Group, Correspondence 17 October 2015.

 81   Ai Group, Reply Submission, 28 August 2015 at [59]-[61].

 82   Ai Group, Submission – revised exposure draft 13 November 2015 at [4]-[7].

 83   UV, Submission – revised exposure draft 13 November 2015 at [2]-[7].

 84   Transcript 11 December 2015 PN203-206.

 85   UV, Correspondence – revised exposure draft 16 December 2015.

 86   Ai Group, Submission – revised exposure draft 13 November 2015 at [8]-[14].

 87   Transcript 11 December 2015 PN206-237

 88   Ai Group, Correspondence – revised exposure draft 16 December 2015.

 89   UV, Correspondence – revised exposure draft 16 December 2015.

 90   Ai Group, Submission – revised exposure draft, 13 November 2015 at [11].

 91   AWU, Submission, 5 February 2015.

 92   United Firefighters’ Union of Australia (UFUA), Submission – technical and drafting issues – exposure draft, 18 November 2015.

 93   Country Fire Authority (CFA), Submissions – technical and drafting issues – exposure draft, 20 November 2015.

 94   Metropolitan Fire Brigade (MFB), Submission – technical and drafting issues – exposure draft, 20 November 2015.

 95   See Transcript 17 December 2015 at PN32–34 and Directions, 24 December 2015.

 96   Transcript 17 December 2015 at PN94.

 97   AWU, Submission, 5 February 2015 at [12], UFUA, Submission, 18 November 2015 at [20].

 98   MFB, Submission, 20 November 2015 at [29].

 99   CFA, Submission, 20 November 2015 at [23].

 100   Transcript 17 December 2015 at PN96.

 101   [2014] FWCFB 9412 at para 52.

 102   MFB, Submission, 20 November 2015 at [28].

 103   AWU, Submission, 5 February 2015 at [11], UFUA, Submission, 18 November 2015 at [17].

 104   Transcript 17 December 2015 at PN96.

 105   Printing Industries Association of Australia (PIAA), Submission on exposure draft, 22 January 2015.

 106   Ai Group, Submission, 28 January 2015.

 107   Business SA, Submission, 28 January 2015.

 108   AFEI, Submission, 28 January 2015.

 109   ABI and NSW Business Chamber Ltd, Submission, 2 February 2015.

 110   Ai Group, Correspondence – outstanding issues, 21 January 2016.

 111   “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union”, known as the Australian Manufacturing Workers’ Union (AMWU), Submissions – outstanding issues, 22 January 2016.

 112   Ai Group, Reply submission, 4 March 2015, at [39]; Ai Group, Submission, 28 January 2015 at [60]. See also Ai Group, AM2016/14 – submission – training costs, 17 June 2016.

 113   AMWU, Submission – outstanding issues, 22 January 2016 at [2.7]-[2.11].

¹¹⁴ AMWU, Submission – outstanding issues, 22 January 2016 at [2.12].

¹¹⁵ Ai Group, Correspondence- outstanding issues, 21 January 2016.

¹¹⁶ Ai Group, Submission, 28 January 2015 at [114].

¹¹⁷ AMWU, Submission – outstanding issues, 22 January 2016 at [2.15].

¹¹⁸ AMWU, Submission – outstanding issues, 22 January 2016 at [1.2].

¹¹⁹ Fairfax Media, Submission – revised exposure draft, 23 October 2015.

¹²⁰ West Australian Newspapers Limited (WAN) and ColourPress Pty Ltd, Submission, 11 May 2015 at [24].

¹²¹ WAN and ColourPress Pty Ltd, Submission at 11 May 2015 [17].

 122   Health Services Union of Australia (HSU), Correspondence and alternate proposal, 25 April 2016.

 123   Medical Imaging Employment Relations Group (MIERG), Submission – HSU proposal, 19 May 2016.

 124   HSU, Reply submission, 4 March 2015 at [4]; HSU, Submission, 16 July 2015 at [10] and [23]; HSU, Submission – Report to the Full Bench, 5 November 2015 at [3], HSU, Submission – draft determination, 5 August 2016 at [7].

 125   APESMA, Outline of issues, 26 November 2014 at [3]-[4]; APESMA, Submission – draft order, 8 August 2016 at [E]; APESMA, Outline of submissions, 15 July 2015 at [4].

 126   Ai Group, Supplementary Outline of Issues, 28 November 2014 at p. 3; Ai Group, Submission, 28 January 2015 at [121].

 127   Chiropractors Association of Australia, Proposed Variation, 25 November 2014 at [1]; Chiropractors Association of Australia, Submission, 28 January 2015 at [14]; Chiropractors Association of Australia, Reply submission, 25 August 2015 at [7].

 128   HSU, Submission, 16 July 2015 at [116]; HSU, Submission – Report to the Full Bench, 5 November 2015 at [10]-[11]; HSU, Submission – draft determination, 5 August 2016 at [8].

 129   HSU, Submission, 16 July 2015 at [100]-[109].

 130   Aged Care Employers, Submission, 15 July 2015 at [2]-[4].

 131   The issue regarding annualised salaries has been referred to the Full Bench dealing with other such claims in AM2016/13

 132   Ai Group, Submission, 4 February 2015.

 133   AWU, Submission, Reply submission, 4 March 2015.

 134   AFEI, Submission, 6 February 2015.

 135   Australian Trainers’ Association (ATA), Submission, 2 February 2015.

 136   AWU, Submission – revised exposure draft, 13 November 2015.

 137   ATA, Response to revised exposure draft, 28 October 2015.

 138   Ai Group, Submission – revised exposure draft, 6 November 2015.

 139   AWU, Submission – revised exposure draft, 13 November 2015 at [20]-[27]; Ai Group, Submission – revised exposure draft, 6 November 2015 at [2]

 140   AWU, Submissions – further revised exposure draft, 14 December 2015 at [15]-[16] and AWU, Submission – revised exposure draft, 13 November 2015 at [28].

 141   [2015] FWCFB 6656 at [110]; see also July 2015 decision.

 142   [2015] FWCFB 7236.

 143   Transcript, 27 October 2015 at PN176-177

 144   AWU, Submission – revised exposure draft, 13 November 2015 at [17]

 145   AWU, Submission, 15 July 2015 at [1]. See also AWU, Submission – revised exposure draft, 13 November 2015 at [18].

 146   Ai Group, Reply submission, 28 August 2015 at [257].

 147   ATA, Reply submission, 20 February 2015 at [1].

 148   AWU, Submission – revised exposure draft, 13 November 2015 at [19].

 149   Australian Salaried Medical Officers’ Federation (ASMOF), Correspondence, 15 October 2015.

 150   HSU, Outline of submissions and proposed variation, 25 November 2014 at [20]; HSU, Submission, 16 July 2015 at [6]-[9].

 151   HSU, Submission, 16 July 2015 at [8].

 152   HSU, Submission, 16 July 2015 at [9].

 153   Ai Group, Reply submission, 28 August 2015 at [272]-[283].

 154   ACE, Submission, 28 January 2015 at [3].

 155   Ai Group, Reply submission, 4 March 2015 at [91].

 156   Australian Nursing and Midwifery Federation (ANMF), Reply submission, 4 March 2015. See also ANMF, Submission, 15 July 2015.

 157   ANMF, Proposed variations, 25 November 2014 at [7]; ANMF, Submission, 15 July 2015 at [30]-[33].

 158   See also ANMF, Proposed variations, 25 November 2014 at [12].

 159   ANMF, Submission, 15 July 2015 at [52].

 160   ANMF, Submission, 15 July 2015 at [27]-[28]. See also ANMF, Proposed variations, 25 November 2014 at [13].

 161   ACE, Submission, 15 July 2015, Annexure A.

 162   ANMF, Further submission, 21 July 2016.

 163   HSU, Reply submission, 25 August 2015 at [11]; Private Hospital Industry Employer Associations (PHIEA), Reply submission, August 2015 at [5] and [9].

 164   ACE, Reply submission, 21 August 2015 at [4].

 165   ACE, Submission, 28 January 2015 at [6].

 166   ACE, Submission, 28 January 2015 at [6].

 167   ANMF, Further submission, 21 July 2016.

 168   ACE, Submission, 15 July 2015 at [2].

 169   ANMF, Submission, 15 July 2015 at [42].

 170   ANMF, Submission, 15 July 2015 at [46]; ANMF, Submission, 23 March 2015 at [10].

 171   ANMF, Submission, 15 July 2015 at [46]; ANMF, Submission, 28 January 2015.

 172   ACE, Submission, 15 July 2015 at [5].

 173   ANMF, Submission, 15 July 2015 at [15-19]; ANMF, Submission, 28 January 2015.

 174   HSU, Submission, 16 July 2015 at [31].

 175   HSU, Submission, 16 July 2015 at [12].

 176   ANMF, Submission, 4 March 2015.

 177   ANMF, Proposed variations, 25 November 2014 at [6].

 178   HSU, Reply submission, 25 August 2015 at [11].

 179   Ai Group, Correspondence, 7 July 2016.

 180   Transcript 7 July 2016 PNs 204-220.

 181   Ai Group, Reply submission, 28 August 2016 at [449]; Ai Group, Submission, 4 February 2015 at [6.7].

 182   Ai Group, Submission, 4 February 2015 at [6.8].

 183   Ai Group, Submission, 4 February 2015 at [6.7]-[6.8].

 184   Transport Workers Union (TWU), AM2016/8 – Submission – report to the Full Bench, 16 August 2016 at [8]-[11].

 185   Australian Public Transport Industrial Association (APTIA), Correspondence – outstanding issues, 11 July 2016; APTIA, Submission on exposure draft – amended, 12 May 2015, at [26]-[34]; APTIA, Draft determinations, 25 November 2014, page 5.

 186   TWU, Submission on exposure draft, 4 February 2015 at [9]; TWU, Submission, 20 July 2015 at [18] and [19].

 187   Statement re Group 2 awards [2015] FWCFB 6662 at para 6

 188   Statement - [2015] FWC 6555

 189   Statement - [2015] FWC 7467

 190   Statement – [2016] FWCFB 5621

 191   Statement – [2016] FWC 4770

 192   Ai Group, Submissions, 4 February 2015.

 193   AWU, Submission, 28 January 2015.

 194   Business SA, Submissions, 4 February 2015.

 195   Ai Group, Submission – revised exposure draft, 9 November 2015 at [6].

 196   Ai Group, Reply submission, 1 November 2015.

 197   [2015] FWCFB 4658 at [42].

 198   Ai Group, Submission – revised exposure draft, 9 November 2015 at [3] and [4].

 199   AWU Submission 11 November 2015.

 200   AFEI Submission 13 November 2015.

 201   Australian Road Transport Industrial Organisation (ARTIA), Submissions, 4 February 2015.

 202   AWU, Submissions, 4 February 2015.

 203   Australian Business Industrial and NSW Business Chamber Ltd, Submissions, 4 February 2015.

 204   Business SA, Submissions, 4 February 2015.

 205   Ai Group, Submissions, 4 February 2015.

 206   TWU, Submission on exposure draft, 4 February 2015.

 207   Transcript of 7 July 2016 at PN 248.

 208   TWU, Correspondence, 15 May 2015.

 209   TWU, Submission on exposure draft, 4 February 2015 at [3].

 210   Ai Group, Correspondence, 7 July 2016.

 211   Ai Group, Submission, 11 February 2015 at [61-62].

 212   TWU, AM2016/8 – Submission – report to the Full Bench, 16 August 2016.

 213   Transcript 7 July 2016 at PNs230-234

 214   TWU, Submission, 2 September 2016.

 215   Ai Group, Submission, 11 February 2015 at [82]. Ai Group, Reply submission, 28 August 2015 at [466]. See also Ai Group, Correspondence, 7 July 2016.

 216   Ai Group, Proposed variation, 24 November 2014 at [10]. See also Ai Group, Correspondence, 7 July 2016.

 217   Ai Group, Proposed variation, 24 November 2014 at [10]. See also Ai Group, Correspondence, 7 July 2016.

 218   Ai Group, Correspondence, 7 July 2016.

 219   TWU, Submission – proposed variations, 14 October 2015.

 220   TWU, Submission – proposed variations, 14 October 2015. See also TWU, Correspondence – draft report, 23 November 2015.

 221   Ai Group, Submission, 11 February 2015 at [80]. See also Ai Group, Correspondence, 7 July 2016.

 222   AMWU, Submission, 28 January 2015 at [3].

 223   AWU, Reply submission, 18 February 2015 at [2].

 224   Ai Group, Reply submission, 4 March 2015 at [114].

 225   AMWU, Submission, 28 January 2015 at [3].

 226   AMWU, Submission, 28 January 2015 at [3].

 227   Ai Group, Reply submission, 4 March 2015 at [114].

 228   [2015] FWCFB 7236 at [37] to [50]

 229   [2015] FWCFB 7236 at [154] to [159]

 230   Ai Group, Summary of submissions – revised and exposure draft – revised, 2 November 2015.

 231   Ai Group, Correspondence – outstanding issues – extension of time, 19 March 2016.

 232   Ai Group, Submission – outstanding issues, 8 April 2016 at [22].

 233   AWU, Correspondence – status of issues, 11 April 2016.

 234   See also 4 yearly review of modern awards—Alleged NES Inconsistencies, [2015] FWCFB 3023 at [40]–[45]

 235   Ai Group, Submission – amended, 7 July 2016, at [42]-[5].

 236   AWU, SDA and National Union of Workers (NUW), Submission – outstanding issues, 22 January 2016 at [2].

 237   AWU, SDA and National Union of Workers (NUW), Submission – outstanding issues, 22 January 2016 at [3].

 238   Ai Group, Submission – amended, 7 July 2016, at [7].

 239   AWU, SDA and National Union of Workers (NUW), Submission – outstanding issues, 22 January 2016 at [5].

 240   AWU, SDA and National Union of Workers (NUW), Submission – outstanding issues, 22 January 2016 at [9].

 241   [2015] FWCFB 7236

 242   Ai Group, Submission – amended, 7 July 2016 at [20].

 243   Ai Group, Submission – amended, 7 July 2016 at [39].

 244   Ai Group, Submission – amended, 7 July 2016 at [50].

 245   AWU, SDA and National Union of Workers (NUW), Submission – outstanding issues, 22 January 2016 at [25].

 246   AWU, SDA and National Union of Workers (NUW), Submission – outstanding issues, 22 January 2016 at [26] and [30].

 247   AWU, SDA and National Union of Workers (NUW), Submission – outstanding issues, 22 January 2016 at [27]-[28].

 248   AWU, SDA and National Union of Workers (NUW), Submission – outstanding issues, 22 January 2016 at [29].

 249   AWU, SDA and National Union of Workers (NUW), Submission – outstanding issues, 22 January 2016 at [30].

 250   AWU, SDA and National Union of Workers (NUW), Submission – outstanding issues, 22 January 2016 at [32].

 251   AWU, SDA and National Union of Workers (NUW), Submission – outstanding issues, 22 January 2016 at [34].

 252   Ai Group, Submission – amended, 7 July 2016 at [52]-[60].

 253   Ai Group, AM2016/8 – correspondence and draft determinations, 26 April 2016.

 254   Ai Group, Correspondence, 7 July 2016.

 255   TWU, Submission, 22 July 2015 at [14].

 256   TWU, Submission on exposure draft, 4 February 2015 at [5]; TWU, Submission, 22 July 2015 at [18].

 257   TWU, Submission, 22 July 2015 at [16].

 258   TWU, Proposed variation, 25 November 2014 at [6]; TWU, Submission, 22 July 2015 at [16].

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