[2016] FWCFB 8915

FAIR WORK COMMISSION

STATEMENT

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

4 yearly review of modern awards – Plain language re-drafting – General
(AM2016/15)

JUSTICE ROSS, PRESIDENT
VICE PRESIDENT HATCHER
COMMISSIONER HUNT

MELBOURNE, 13 DECEMBER 2016

Four yearly review of modern awards – Plain language project.

[1] This Statement addresses concerns raised in correspondence from the Australian Council of Trade Unions (ACTU) dated 7 December 2016. In their correspondence, the ACTU outlined their concerns regarding the process of Plain language re-drafting of modern awards. In correspondence of 12 December 2016, Ai Group shared some of the concerns raised by the ACTU, in particular in relation to resource demands of the Review.

[2] As outlined in the Statement issued on 15 July 2016 1 (the ‘15 July Statement’), and confirmed in the later Statement on 11 August 2016,2 the Plain language re-drafting process comprises of several elements – the review of the standard and common clauses generally and the review of award-specific issues in the awards that have been selected for the plain language process.

1. Standard and common clauses

[3] The 15 July Statement provides that ‘the Commission has been mindful of the need to treat award-specific terms in a different way to general terms which have broader application across modern awards’. Accordingly, persons with an interest in all awards, not just those selected for plain language review, have been invited to and have made submissions and attended conferences regarding the standard clauses.

[4] A Statement of 30 October 2015 3 in relation to the re-drafting of the Pharmacy Industry Award 2010 (the Pharmacy Award) specified the clauses of the Pharmacy Award that were treated as award-specific (referred to as Part A provisions) and those of general application (referred to as Part B provisions). The Part B provisions were further categorised in the 15 July Statement:4

‘ Common provisions are a range of clauses and notes that have been generated during the Review and inserted into most exposure drafts such as machinery type provisions and simple leave provisions. Examples of common provisions include but are not limited to:

the National Employment Standards and this award;

the Facilitative provisions framework; and

Personal/carer’s leave and compassionate leave (where such a clause does not have any award-specific content).

Standard provisions that have arisen from previous test cases and are generally replicated in the same form across most awards. The standard provisions are:

Award flexibility;

Consultation;

Dispute resolution;

Termination of employment; and

Redundancy.’ [emphasis added]

[5] In the ACTU correspondence they observe that the number of clauses identified in the Statements of 15 July and 1 December 2016 has changed. Paragraph [5] of the 15 July Statement provides ‘examples of common provisions’ and was not intended to be an exhaustive list.

[6] In relation to the comment that standard clauses have been slightly altered, the Statement of 30 October 2015, 5 to which the ACTU refers, states that these clauses ‘will be the same or similar to what appears in the current award’.6 The changes made have been limited to inserting new headings, disaggregating the termination of employment and redundancy provisions and updating cross-references.

[7] The standard and common clauses are listed in Attachment A to this Statement. While the clause numbers identified in Attachment A are in accordance with the exposure draft based on the Clerks—Private Sector Award 2010, the content of these clauses is consistent across most awards.

[8] In accordance with the Statement issued on 13 December 2016, 7 and consistent with our earlier statements, the standard clauses will be dealt with by conferences before Commissioner Hunt, and if required, at a hearing before the Full Bench. The common clauses will be dealt with in a similar process in 2017. There will be further consultation in March 2017 to identify the provisions which are to be regarded as ‘common clauses’ for this purpose. Any interested persons may participate in that consultation process.

[9] While consistency across awards is desirable, in all matters being considered as part of the Review parties have been given an opportunity to make submissions where they consider a particular provision should be tailored to meet the needs of their industry. 8 If changes are made to any standard or common clauses currently appearing in modern awards, parties will be given such an opportunity. Section 156(5) of the Fair Work Act 2009 provides that each modern award must be ‘reviewed in its own right’ as part of the 4 yearly review.

[10] In relation to the concern that some parties may not be aware of the impact of the plain language process, the Commission will publish this Statement on all award pages on the Review section of the website. It should be noted that to date, subscribers to all modern awards have been notified of plain language events in relation to standard and common clauses.

2. Award specific processes

[11] On 2 September 2015, a conference was held with interested parties to the Pharmacy Award in which the Commission stated that a plain language Pilot would include re-drafting the Pharmacy Award.

[12] Following completion of the Pilot, four additional modern awards were selected for plain language re-drafting:

Clerks—Private Sector Award 2010;

General Retail Industry Award 2010;

Hospitality Industry (General) Award 2010; and

Restaurant Industry Award 2010.

[13] These modern awards have been selected for plain language re-drafting based on an assessment of the level of award reliance among employers and employees in these industries. The organisations in these industries are less likely to have a dedicated internal human resources function to assist with the interpretation of awards. Additional awards may be the subject of plain language re-drafting as resources permit. The selection of any additional awards will only occur after further consultation.

[14] The plain language process has involved extensive consultation as outlined in Attachment B.

[15] The hearing listed on Thursday 15 December 2016 will consider the award-specific provisions in the Pharmacy Award only.

3. Plain language guidelines

[16] Draft Guidelines for plain language drafting of modern awards were published on 9 November 2016 and were the subject of a conference held on 23 November 2016 before Commissioner Hunt. The Guidelines are the subject of a separate statement to be issued today. 9

PRESIDENT

ATTACHMENT A—Award-specific, common and standard clauses in the revised Clerks Award exposure draft

(extract from Statement of 4 November 2016 [2016] FWCFB 7967)

Revised Clerks Award exposure draft (11 October 2016)

Clause type

Part 1— Application and Operation
1. Title and commencement
2. The National Employment Standards and this award
3. Coverage
4. Award flexibility
5. Facilitative provisions
Part 2— Types of Employment and Classifications
6. Types of employment
7. Classifications
Part 3— Hours of Work
8. Ordinary hours of work (other than shiftworkers)
9. Breaks
Part 4— Wages and Allowances
10. Minimum wages
11. Allowances
12. Superannuation
Part 5— Penalties and Overtime
13. Overtime rates and penalties (other than shiftworkers)
14. Shiftwork
Part 6— Leave, Public Holidays and Other NES Entitlements
15. Annual leave
16. Personal/carer’s leave and compassionate leave
17. Parental leave and related entitlements
18. Public holidays
19. Community service leave
20. Termination of employment
21. Redundancy
Part 7— Consultation and Dispute Resolution
22. Consultation
23. Dispute resolution
Schedule A—Classification Structure and Definitions
Schedule B—Summary of Hourly Rates of Pay
Schedule C—Summary of Monetary Allowances
Schedule D— Supported Wage System
Schedule E—National Training Wage
Schedule F—2015 Part-day Public Holidays
Schedule G—Agreement To Take Annual Leave In Advance

Schedule H—Agreement To Cash Out Annual Leave

Schedule I—Definitions

Award-specific (except clause 1.3)
Common
Award-specific
Standard
Common

Award-specific
Award-specific

Award-specific
Award-specific
Standard

Award-specific
Award-specific

Common
Common
Common
Common
Common
Standard
Standard

Standard

Award-specific

Common
Common
Common
Common
Common
Plain language – no further change
Plain language – no further change
Award-specific

ATTACHMENT B – Timeline of Plain language re-drafting process

Date	Event
28 August 2015	Correspondence from Justice Ross explaining the purpose of the plain language pilot in the Pharmacy Industry Award 2010.
2 September 2015	Conference held to discuss how parties wish to engage in the Pilot.
22 September 2015	Statement [2015] FWC 6555 established the Pilot to produce a plain language exposure draft based on the Pharmacy Industry Award 2010. Outlined the scope, background and process of the Pilot.
25 September 2015	Further revised summary of submissions document published
29 October 2015	Statement [2015] FWC 7467 attaches a timetable for the Pilot. Based on parties’ comments, revised instructions for the Plain language drafting services and User testing services attached. The Statement defined ‘Part A’ clauses as award specific clauses to the Pharmacy Award and ‘Part B’ clauses as standard clauses.
27 November 2015	Plain language draft – Pharmacy Award. Parties were invited to comment on draft plain language award-specific clauses by 10 December 2015.
15 December 2015	Summary of submissions document published in respect of the plain language exposure draft of the Pharmacy Award.
17 December 2015	Conference held to discuss draft plain language award-specific clauses
21 April 2016	Report published by the Commission included: ● background information to describe the genesis, scope and the findings from the Pilot; ● the plain language exposure draft of the Pharmacy Award; ● a list of clauses of the Pharmacy Award that are common to other awards; and ● draft Guidelines for plain language drafting of modern awards were also included.
21 April 2016	Report from user testing - plain language Pilot published.
27 April 2016	Conference held to discuss the next steps for the plain language exposure draft.
27 April 2016	Directions issued providing interested parties with an opportunity to file submissions on the revised plain language exposure draft published 21 April 2016.
6 May 2016	Statement [2016] FWC 2837 outlined further awards that will be subject to plain language drafts: Group 3 Clerks–Private Sector Award 2010 Group 4 General Retail Industry Award 2010 Hospitality Industry (General) Award 2010 Restaurant Industry Award 2010 Interested parties were invited to comment on the awards selected for redrafting and were to provide supporting evidence if further awards were proposed to be selected by 20 May 2016.
7 May 2016	Supplementary information to the report on user testing published at the request of parties at the 27 April 2016 conference.
10 May 2016	Statement [2016] FWC 2924
16 May 2016	Amended Directions issued further to the Directions of 27 April 2016 revising dates for parties to file submissions regarding the Pharmacy Award plain language draft.
2 June 2016	Revised summary of submissions document regarding Pharmacy Award plain language exposure draft published.
8 June 2016	Conference held to consider the process for finalising the plain language exposure draft of the Pharmacy Award.
6 July 2016	Statement [2016] FWC 4495 indicated that the National Training Wage Schedule may be the subject of plain language re-drafting.
15 July 2016	Statement - [2016] FWC 4756 outlined the proposed process in respect of the plain language pilot and the different components of the Plain language modern awards project. Interested parties were invited to comment on the process. A timetable for the project was attached.
22 July 2016	Revised exposure draft of the Pharmacy Award published.
22 July 2016	Comparison document of award-specific clauses in the revised exposure draft and Pharmacy Award, includes drafter comments.
9 August 2016	Comparison document of draft standard clauses in the revised exposure draft and Pharmacy Award, includes drafter comments. The document identifies modern awards that contain the standard clauses and those that differ.
11 August 2016	Statement [2016] FWCFB 5621 confirmed the process and timetable for further plain language re-drafting of the four modern awards selected for plain language re-drafting.
11 August 2016	Draft Directions issued providing interested parties with an opportunity to comment on the revised exposure draft of the Pharmacy Award published 22 July 2016.
17 August 2016	Final Directions issued following draft Directions of 11 August 2016.
7 September 2016	Clerks Award revised exposure draft published.
16 September 2016	Pharmacy Award summary of submissions document published – plain language award-specific clauses.
26 September 2016	Conference held to discuss matters raised in submissions on the Pharmacy Award revised exposure draft.
27 September 2016	Statement [2016] FWCFB 6916 issued with draft directions providing an opportunity for interested parties to comment on the directions.
12 October 2016	Final Directions issued directing interested parties to file submissions on any technical and drafting issues in respect of the Pharmacy Award revised exposure draft.
18 October 2016	Summary of submissions document published – Pharmacy Award plain language draft standard clauses submissions received to 17 October 2016.
4 November 2016	Statement [2016] FWCFB 7968 issued providing background to the plain language draft guidelines to be published.
4 November 2016	Statement [2016] FWCFB 7967 issued regarding technical and drafting issues in the Clerks Award. Updated plain language modern awards timetable attached.
8 November 2016	Pharmacy award document published – updated summary of submissions and submissions in reply on the plain language draft standard clauses received to 4 November 2016.
9 November 2016	Amended Directions issued – further to Directions of 12 October 2016 providing parties with an opportunity to file submissions on the Pharmacy Award revised plain language draft.
9 November 2016	Plain language draft guidelines published. The Guidelines are intended to achieve consistency in language and structure across modern awards.
10 November 2016	Pharmacy award summary of submissions document published - plain language award minor technical matters.
10 November 2016	Pharmacy Award – revised Exposure Draft published.
21 November 2016	Plain language draft guidelines - summary of submissions document published.
23 November 2016	Conference held to discuss draft guidelines and standard clauses.
1 December 2016	Pharmacy Award – summary document published – submissions on revised exposure draft to 10 November 2016.

1 [2016] FWC 4756 .

2 [2016] FWCFB 5621 .

3 [2015] FWC 7467.

4 [2016] FWC 4756.

5 [2015] FWC 7467.

6 Ibid at Appendix to Attachment C.

7 [2016] FWCFB 8392.

8 See for example: [2016] FWCFB 2602 at paragraph [44]; [2015] FWCFB 5771 at paragraph [213].

9 [2016] FWCFB 8392.

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