[2016] FWCFB 7967

The attached document replaces the document previously issued with the above code on 4 November 2016.

Footnote 1 converted to an endnote

Endnotes 3 and 4 amended to refer to [2016] FWCFB 5621

Joanna Richardson

Associate to Justice Ross, President

Dated 4 November 2016

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

4 yearly review of modern awards – Plain language project – Clerks—Private Sector Award 2010 – Revised plain language timetable

[1] As foreshadowed in the Statement issued on 15 July 2016 1, the initial Guidelines developed by Mr Eamonn Moran QC as part of the plain language pilot are being expanded and refined. These Guidelines will be a reference for further plain language re-drafting undertaken as part of the 4 yearly review.

[2] In order to give parties the opportunity to make submissions and attend consultations on the content of the Guidelines as outlined in a Statement issued today 2, the timetable set out in Attachment A to the Statement issued on 11 August 20163 has been revised. The revised timetable for further plain language re-drafting is at Attachment A.

Clerks—Private Sector Award 2010 – outstanding technical and drafting issues

[3] Further to the Statement issued on 11 August 2016 4 and Directions issued on 17 August 2016, the Commission has considered submissions received from interested parties in relation to 13 outstanding technical and drafting issues in relation to the exposure draft based on the Clerks—Private Sector Award 2010 (Clerks exposure draft) that was first published on 18 December 2015.

[4] A further revised summary of submissions and revised exposure draft was published on 11 October 2016 to the incorporate further agreed changes.

[5] As proposed by Ai Group 5 and supported by BusinessSA, the Commission facilitated a written submissions process, prior to the commencement of plain language re-drafting, to deal with 13 items marked as “O—Outstanding” in the Revised summary of submissions that was published on 4 August 2016.

[6] The further revised exposure draft and summary of submissions published on 11 October 2016 reflect the status of technical and drafting issues at this point in time based on all written and oral submissions received by the Commission in relation to the Clerks Award exposure draft.

[7] Following the most recent round of written submissions, one further issue has been raised and 5 issues have been agreed. The five agreed issues are:

● Item 4 (revising the reference to individual employees and majority of employees in the index of facilitative provisions and amendments to clause 18.2)

● Items 8 and 39 (no support for proposal to define ‘shiftworker’)

● Item 41 (no support for clarifying the meaning of ‘special rates’)

● Item 45 (no support for clarification of annual leave loading calculation)

[8] The following items listed as Outstanding in the further revised summary of submissions are to be dealt with along with all other award-specific clauses that will be subject to plain language re-drafting:

● Items 9 and 10 (Ai Group proposes amended wording for weekly hours of work provisions)

● Items 17, 18 and 40 (clarifying the effect of provisions for altering the span of ordinary hours)

● Item 35 (rest period after working overtime)

● Item 49 (inclusion of a provision for shiftworkers in a clause that excludes shiftworkers)

● An additional Item 50 (Ai Group has made a submission in relation to the use of inconsistent terminology for shift loadings, penalties and allowances within and across awards)

[9] The following items were listed as Outstanding in the further revised summary of submissions:

(i) In Item 44 the Australian Municipal, Administrative, Clerical and Services Union (ASU) is seeking a substantive change to the definition of shiftworker. This status has been changed to S—Substantive.

(ii) In Item 2, Community Connections Solutions Australia was seeking to vary the coverage of the Clerks award. This claim was withdrawn on 30 September 2016.

[10] The remaining substantive issues are Item 31, Superannuation, and Item 47, evidence required for the taking of leave.

[11] It is our view that it would be more efficient to deal with the award-specific outstanding technical and drafting issues together with all other award-specific provisions of the Clerks Award that will be subject to plain language re-drafting as part of the Award Stage of the Review. Attachment B identifies the award-specific, common and standard clauses of the revised Clerks Award exposure draft.

[12] Clauses that are common to other modern awards will be dealt with in a separate process as outlined in the Statement issued 11 August 2016. 6

[13] The plain language re-draft will be based on the revised Clerks Award exposure draft published on 11 October 2016.

[14] Plain language re-drafting will alter the form of terms in the revised exposure draft, including terms agreed by interested parties reflected in the revised exposure draft. It is likely that plain language re-drafting will raise further technical and drafting issues.

[15] The objective of plain language re-drafting is to make the award simpler and easier to understand without changing its legal effect. However, because the intended outcome of the process is to improve precision, remove ambiguity and clearly convey how provisions are to be applied in the workplace, the process has the potential to reveal issues and generate debate about the entitlements and obligations under the award.

[16] Written and oral submissions received to date from interested parties in relation to the Clerks Award exposure draft will inform re-drafting activities. However, it may be necessary to seek further submissions in respect to the plain language re-draft to clarify the intended and actual effect of provisions of the Clerks Award.

[17] Interested parties will continue to be consulted on the plain language re-drafting of this award.

PRESIDENT

Attachment A—Updated Plain language modern awards timetable

A.1 Pharmacy Industry Award 2010

Plain language draft Pharmacy Industry Award

A.2 All awards

Plain language draft standard clauses

Plain language draft common clauses

Plain language guidelines (see [2016] FWCFB 7968)

A.3 Four modern awards selected for plain language re-drafting

Clerks—Private Sector Award 2010 (see paragraphs [13])

Hospitality Industry (General) Award 2010 and Restaurant Industry Award 2010

General Retail Industry Award 2010

w/c = week commencing

Attachment B—Award-specific, common and standard clauses in the revised Clerks Award exposure draft

 1   [2016] FWC 4756 at [36]–[38]

 2   [2016] FWCFB 7968

 3   [2016] FWCFB 5621

 4   ibid

 5   Ai Group, submission 18 July 2016

 6   [2016] FWCFB 5621

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