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

4 yearly review of modern awards—Plain language re-drafting—Tranche 2 awards.

Background

[1] Section 156(2)(a) of the Fair Work Act 2009 (Cth) (the Act) requires the Commission to review all modern awards every four years (the Review).

[2] This Full Bench has been constituted to oversee a number of plain language projects as part of the Review. 1 These projects include the development of Guidelines for plain language redrafting of modern awards, the selection of particular awards to be reviewed as part of the plain language project,2 a review of the National Training Wage Schedule and other Schedules3 and changes to the structure of exposure drafts developed as part of the Award Stage of the Review.

[3] On 22 September 2015, the Commission issued a Statement 4 establishing a pilot to produce a plain language draft of the Pharmacy Award. The purpose of the pilot was to create a plain language exposure draft which was simpler and easier for employees and employers to understand than the current Award.5 A report on the pilot presented results of user testing research, concluding that the overall reception to the plain language draft was positive.

[4] In a Statement of 6 May 2016, 6 the Commission proposed to prepare plain language drafts of award-specific clauses in four other modern awards:

• Clerks – Private Sector Award 2010;


• General Retail Industry Award 2010;


• Hospitality Industry (General) Award 2010; and


• Restaurant Industry Award 2010.

[5] The selection of the first tranche of modern awards to be redrafted in plain language was based on an assessment of the level of award reliance among employers and employees in the industries covered by the instruments. Particular weight was given to award reliance among small businesses (those with fewer than 20 employees) on the basis that these entities are less likely to have a dedicated internal human resources function to assist with the interpretation of awards.

[6] In a Statement 7 of 27 March 2017 (the March statement) the Commission proposed that a further 10 modern awards would be drafted in plain language. The awards proposed for inclusion the second tranche of modern awards for plain language re-drafting are:

• Aged Care Award 2010 (Aged Care Award);


• Building and Construction General On-site Award 2010 (Building On-site Award);


• Children’s Services Award 2010 (Children’s Services Award);


• Cleaning Services Award 2010 (Cleaning Award);


• Fast Food Industry Award 2010 (Fast Food Award);


• Hair and Beauty Industry Award 2010 (Hair and Beauty Award);


• Manufacturing and Associated Industries and Occupations Award 2010 (Manufacturing Award);


• Security Services Industry Award 2010 (Security Award);


• Social, Community, Home Care and Disability Services Industry Award 2010 (SCHADS Award); and


• Vehicle Manufacturing, Repair, Services and Retail Award 2010 (Vehicle Award).

[7] In selecting these modern awards we took into consideration the following factors:

• industries or subsectors identified by the Fair Work Ombudsman as having high levels of non-compliance;


• award reliance survey data regarding modern awards used by small businesses;


• the resources available to the Commission; and


• current public interest.

[8] Interested persons were invited to comment on the selection of modern awards proposed for inclusion in the second tranche of plain language re-drafting. Submissions were received from:

• Australian Council of Trade Unions (ACTU);


• Australian Industry Group (Ai Group) and Shop, Distributive and Allied Employees’ Association (SDA);


• Aged Care Employers (ACE);


• Australian Security Industry Association Limited (ASIAL);


• Australian Services Union (ASU);


• Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers Union (AMWU);


• Health Services Union (HSU);


• Housing Industry Association (HIA);


• Joint Construction submission (on behalf of Ai Group; Construction, Forestry, Mining and Energy Union (CFMEU); AMWU; Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU));


• Joint Manufacturing submission (on behalf of Metal Trades Federation of Unions (MTFU); Ai Group; The Australian Workers’ Union (AWU); CFMEU; National Union of Workers (NUW) and United Voice);


• Joint Vehicle submission (on behalf of Motor Trades Organisations (MTO); Ai Group, AMWU and SDA);


• Jobs Australia;


• Master Builders Australia (MBA); and


• United Voice.

[9] This decision finalises the second tranche of modern awards to be included in the plain language project and the sequencing of the redrafting process. Before turning to the award specific submissions we propose to deal with a general, jurisdictional, submission advanced by the ACTU.

General/Jurisdiction submission

[10] The ACTU was the only interested party to make a general submission regarding the proposed second tranche of modern awards.

[11] The ACTU contends that certain ‘threshold issues’ must be satisfied before a plain language redrafting exercise is conducted in a particular modern award. Specifically, it is submitted that it is arguable that one of two threshold requirements must be satisfied before the Commission can issue a determination to vary a modern award so as to republish it as a plain language redraft, or to vary any of its terms to reflect plain language redrafting. The two, alternate, threshold requirements posited are:

(i) a finding that the modern award does not achieve the modern awards objective; or

(ii) the identification of ambiguity, uncertainty or an error, such as to enliven the discretion to make a determination varying a modern award pursuant to s.160 of the Act.

[12] The finding at (i) is said to be a mandatory precondition – a jurisdictional fact – that must be satisfied before the Commission can exercise the power under s.156 to make a determination to vary a modern award in the course of the Review. The ACTU submits that ‘it is strongly arguable’ that in the context of the Review:

‘…the requisite finding to support any ultimate determination to vary a particular award so as to introduce plain-language redrafting is a finding at some point during the proceeding that the modern award is not simple, or not easy enough to understand, and its failings in this regard are significant enough to for it to be concluded that the award does not provide a fair and relevant safety net. This is a finding that is different in nature to a finding that award would be made more simple or made easier to understand if it were re-drafted in plain language.’ 8

[13] As to the alternate finding at (ii), the ACTU contends that the finding required to enliven the discretion to make a variation determination under s.160 is ‘not dissimilar’ to the nature of the finding required to vary an award in the course of the Review:

‘Whereas the essential question in the context of the Review is likely to be satisfied where it is concluded that the Award is likely to be misunderstood, the essential question in the context of an ambiguity or uncertainty is whether the relevant provision is capable of more than one meaning.’ 9

[14] In short, the ACTU’s position is that the Commission should abandon the plain language redrafting of modern awards as part of the Review and, after the completion of the Review, plain language redrafting could proceed pursuant to s.160, either on the Commission’s own motion or responsive to an application. So much is apparent from the following extract of the ACTU’s submission:

‘Threshold issues must be satisfied before a plain language re-drafting exercise is conducted on a particular modern award. A proper application of the threshold requirements that apply to enliven discretion to vary an award under section 156 has not yet been undertaken. Either a proper application of that threshold or the application of the threshold governing the Commission’s own motion powers under section 160 would re-focus that plain language process on making corrections rather than improvements. However, the reliance on section 160 (both on the Commission’s own motion and/or responsive to an application) would permit plain language drafting to proceed on a less condensed timetable and is preferred on that basis. A less condensed process could, for example, occur entirely after the Review and be response to the usability of the Modern Awards that have been refined through the exposure draft process undertaken in the review, rather than the Modern Awards as they are today.’ 10

[15] We reject the submission advanced on behalf of the ACTU. The argument put is misconceived, for three reasons.

[16] First, contrary to the ACTU’s submission the Act does not require the making of a finding that a ‘modern award is not simple, or not easy enough to understand, and its failings in this regard are significant enough for it to be concluded that the award does not provide a fair and relevant safety net’, before the award can be varied to introduce plain language redrafting. The submission put fails to appreciate the nature of the Commission’s task in the Review and misconstrues the modern awards objective.

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

[18] The modern awards objective is to ‘ensure that modern awards, together with the National Employment Standards, provide a fair and relevant minimum safety net of terms and conditions’, taking into account the particular considerations identified in sections 134(1)(a) to (h) (the s.134 considerations). The objective is very broadly expressed. 11 The obligation to take into account the s.134 considerations means that each of these matters, insofar as they are relevant, must be treated as a matter of significance in the decision making process.12 No particular primacy is attached to any of the s.134 considerations and not all of the matters identified will necessarily be relevant in the context of a particular proposal to vary a modern award.

[19] Further, it is not necessary to make a finding that a modern award fails to satisfy one or more of the s.134 considerations before an award may be varied in the Review. 13 Generally speaking, the s.134 considerations do not set a particular standard against which a modern award can be evaluated; many of them may be characterised as broad social objectives. As the Full Court of the Federal Court said in National Retail Association v Fair Work Commission:

‘[109] It is apparent from the terms of s 134(1) that the factors listed in (a) to (h) are broad considerations which the FWC must take into account in considering whether a modern award meets the objective set by s 134(1), that is to say, whether it provides a fair and relevant minimum safety net of terms and conditions. The listed factors do not, in themselves, however, pose any questions or set any standard against which a modern award could be evaluated. Many of them are broad social objectives. What, for example, was the finding called for in relation to the first factor (“relative living standards and the needs of the low paid”)? Furthermore, it was common ground that some of the factors were inapplicable to the SDA’s claim.

[110] The relevant finding the FWC is called upon to make is that the modern award either achieves or does not achieve the modern awards objective. The NRA’s contention that it was necessary for the FWC to have made a finding that the Retail Award failed to satisfy at least one of the s 134(1) factors must be rejected.’  14

[20] The above observation was recently cited, with approval, by the Full Court in CFMEU v Anglo American Metallurgical Coal Pty Ltd (‘Anglo American’). 15 The Commission’s task in the Review was also the subject of consideration in Anglo American. In that matter the Court held:

‘The terms of s 156(2)(a) require the Commission to review all modern awards every four years. That is the task upon which the Commission was engaged. The statutory task is, in this context, not limited to focusing upon any posited variation as necessary to achieve the modern awards objective, as it is under s 157(1)(a). Rather, it is a review of the modern award as a whole. The review is at large, to ensure that the modern awards objective is being met: that the award, together with the National Employment Standards, provides a fair and relevant minimum safety net of terms and conditions. This is to be achieved by s 138 – terms may and must be included only to the extent necessary to achieve such an objective.

Viewing the statutory task in this way reveals that it is not necessary for the Commission to conclude that the award, or a term of it as it currently stands, does not meet the modern award objective. Rather, it is necessary for the Commission to review the award and, by reference to the matters in s 134(1) and any other consideration consistent with the purpose of the objective, come to an evaluative judgment about the objective and what terms should be included only to the extent necessary to achieve the objective of a fair and relevant minimum safety net.’ 16

[21] Second, the proposition that the finding required to enliven the discretion to make a variation determination under s.160 is ‘not dissimilar’ to the nature of the finding required to vary an award in the course of the Review is incorrect. For the reasons given above, the variation of an award in the Review does not require a finding that the award is not simple or easy to understand. Further, the consideration in s.134(1)(g) is expressed in quite different terms to the jurisdictional facts required to enliven the discretion under s.160.

[22] Third, the ACTU’s submission effectively invites the Commission to ignore the terms of s 134(1)(g) and to abandon the plain language redrafting of modern awards as part of the Review. Contrary to the ACTU’s position, we are not at liberty to ignore a matter we are required to take into account in giving effect to the modern awards objective in the context of the Review.

[23] We would also note that it is unnecessary for us to reach a concluded view at this stage in respect of the general propositions advanced in support of the ACTU’s position. This decision is simply dealing with the finalisation of the second tranche of modern awards to be included in the plain language project and the sequencing of the redrafting project. Importantly, no decision has yet been taken as to whether it is necessary to vary any of the awards in the second tranche.

[24] We now turn to the submissions directed at the inclusion of particular modern awards in the second tranche of the plain language redrafting project.

Award specific submissions

[25] At the outset we note that a number of parties supported the inclusion of particular awards in the second tranche of the plain language drafting project. In particular ASIAL supports the inclusion of the Security Services Industry Award in the second tranche 17 and HIA supports the inclusion of the Building On-site Award.18 MBA also acknowledged that there was merit in considering options to make the award more user-friendly.19

[26] We also note that United Voice agreed with the proposition that if the Cleaning Award and the Security Award are to be included in the second tranche then they may be dealt with concurrently. 20

[27] However, a number of parties opposed the inclusion of particular awards in the second tranche of the plain language re-drafting project. The submissions advanced can broadly be categorised as follows:

(i) Parties are under significant strain in terms of time and resources;

(ii) Parties are participating in a number of concurrent proceedings in the award stage (technical and drafting and substantive claims) and common issues stage;

(iii) Parties are concerned there will be changes to the legal effect;

(iv) Re-drafting may not make modern awards simpler or easier to understand;

(v) No evidence of non-compliance in some of the awards affected;

(vi) Re-drafting will delay determination of awards resulting in an on-going unstable and unsustainable award system;

(vii) Awards are undergoing change and should have an opportunity to operate before further changes.

[28] As to the first two propositions, we acknowledge the resource implications of the Review on participating organisations, but that consideration cannot be determinative of the scope of the Review.

[29] Section 156 imposes an obligation on the Commission to review all modern awards and each modern award must be reviewed in its own right. The Review is conducted on the Commission’s own motion and is not dependent upon an application by an interested party. Nor is the Commission constrained by the terms of a particular application. 21 The Commission is not required to make a decision in the terms applied for22 and, in a Review, may vary a modern award in whatever terms it considers appropriate, subject to its obligation to accord interested parties procedural fairness and the proper application of the relevant statutory provisions.

[30] Further, the nature of modern awards under the Act is quite different from awards under previous legislative regimes 23 and they perform a very different function to that performed by awards of the past. As the Full Court of the Federal Court recently observed in Anglo American:

‘It is of the essence to appreciate that a modern award is not an instrument the product of agreement, or conciliation and arbitration as representing all the terms and conditions of employment of identified employees. Rather, together with the National Employment Standards its purpose is to provide a fair and relevant minimum safety net of terms and conditions…’ 24

[31] There are no named respondents to modern awards. Modern awards apply to, or cover, certain persons, organisations and entities (see ss.47 and 48), but these persons, organisations and entities are not ‘respondents’ to the modern award in the sense that there were named respondents to awards in the past. The nature of this shift is made clear by s.158 which sets out who may apply for the making of a determination to make, vary or revoke a modern award. Under previous legislative regimes the named respondents to a particular award automatically had the requisite standing to make such applications; that is no longer the case. 25

[32] A consequence of the shift in the nature and purpose of modern awards is that the weight to be given to the views of industrial organisations is, generally speaking, less now than it was previously. Further, as we have mentioned previously, 26 an award should be able to be read by an employer or employee without needing a history lesson or a paid advocate to interpret how it is to apply in the workplace.

[33] For our part we wish to acknowledge the assistance which has been provided by industrial organisations (both employer organisations and unions) during the course of the Review. We value the participation of industrial organisations in the Review process and for that reason we have had regard to the resource constraints of the interested parties in determining the sequencing of the plain language redrafting of the modern awards in tranche two. But such considerations provide no warrant for the exclusion of particular modern awards from this aspect of the Review.

[34] As to proposition (iii), the concern expressed is overstated and, in any event, can be addressed in the course of the plain language redrafting process. As we have made clear on a number of occasions the objective of the plain language project is to remove ambiguity, promote certainty and make awards simpler and easier to understand. We expect that one outcome of the plain language project will be the avoidance of future disputation by providing clarity about the rights and responsibilities of employers and employees covered by modern awards.

[35] The Commission will engage in a consultation process during the plain language project to ensure that the re-drafting process does not unintentionally alter the legal effect of any award term. In the event that a differently constituted Full Bench determines a substantive claim in relation to an award which is part of the plain language re-drafting project, then the terms of any variation will be reviewed by this Full Bench. Such a review will not revisit the merits of the substantial matter which has been determined, nor will it alter the legal effect of that determination.

[36] The concern reflected in proposition (iv) is also premature. As we have mentioned, no decision has yet been taken as to whether it is necessary to vary any of the awards in the second tranche. Whether or not the redrafting of a particular award (or a term within an award) means that it is simpler and easier to understand is a judgment that will be made at the appropriate time, after interested parties have been given an opportunity to comment on the proposed redraft.

[37] As to proposition (v) we note the submissions that the Manufacturing Award and Vehicle Award have not been identified by the FWO as having high levels of non compliance and on this basis it is argued that there is no need to include these awards in the second tranche.

[38] However, as we have mentioned, the selection of the modern awards proposed for the second tranche took into consideration a range of factors. In the manufacturing industry, in 10.4 per cent of small businesses up to half of employees were award-reliant and in 4 per cent of small businesses more than half of employees award reliant. 27

[39] As to propositions (vi) and (vii), it is submitted that the plain language redrafting of the Aged Care Award and the SCHADS Award would extend the time before final awards are determined and operational. In respect of the Building On-site Award it is submitted that undertaking a plain language redrafting process would result in a further ‘state of flux’ which would be contrary to the need to have a stable modern award system. These submissions are unpersuasive.

[40] The plain language redrafting project need not delay the implementation of other award variations arising from the Review. There is no reason why the drafting and technical variations, and any substantive variations, to the Aged Care and the SCHADS Awards cannot be implemented once finalised. Plain language drafting could then be considered in relation to the awards as varied. We return to this issue shortly.

[41] As to the submission in respect of the Building On-site Award we accept that the Review process may be said to create a ‘state of flux’ but, as we have mentioned, the Commission is required to conduct the Review, it is not an optional process.

[42] We have given consideration to the range of submissions advanced in respect of particular awards and, in particular, the resourcing constraints of the interested parties, and have reached the following conclusions:

1. The Cleaning Award and the Security Award will be included in the second tranche and will be dealt with together.

2. The Fast Food Award and the Hair and Beauty Award will be included in the second tranche, but the plain language redrafting of these awards will not commence until the substantive claims in respect of these awards have been heard and determined.

We note that there are 15 outstanding substantive issues in relation to the Fast Food Award that have not yet been referred to a Full Bench. 28 A summary of the outstanding substantive issues is at Attachment A to this decision. A mention will be listed on Monday 11 September 2017 at 11.30 am during which parties are to confirm which of the substantive issues at Attachment A are pressed. The substantive issues will then be referred to a separate Full Bench.

We also note that there are 14 outstanding substantive issues in relation to the Hair and Beauty Award that have not yet been referred to another Full Bench. 29 A summary of outstanding substantive issues is at Attachment B to this decision. A mention will be listed on Monday 11 September 2017 at 11.30 am during which parties are to confirm which of the substantive issues at Attachment B are pressed. The substantive issues will then be referred to a separate Full Bench.

3. Further consideration will be given to the inclusion of the Building On-site, Manufacturing and Vehicle Awards in the second tranche of the plain language project once the various substantive claims relating to these awards have been determined.

4. We have decided to defer consideration of inclusion of the Aged Care, SCHADS and Children’s Services Awards in tranche 2 of plain language re-drafting project until completion of the technical and drafting issues and the substantive proceedings in respect of these awards. We note that all three of these awards have been subjected to numerous conferences and significant progress has been made.

In the Aged Care award stage proceedings, a revised exposure draft was published on 10 July 2017 as a result of technical and drafting proceedings which are close to being finalised. A statement 30 summarising the interested parties’ substantive claims was issued on 26 July 2017. A further conference will be held on 29 August 2017 to discuss substantive claims.

In the SCHADS Award award stage proceedings, a report 31 was published on 17 March 2017 summarising the positions of the interested parties following conferences held in the matter. Following a conference on 6 February, the majority of technical and drafting issues have been resolved. Submissions were received from interested parties regarding the substantive issues and as a result, a revised exposure draft was published on 13 July 2017. The parties have requested a conference to discuss substantive issues. A conference will be listed to discuss substantive claims in September 2017. A coverage issue has been referred to a Full Bench for determination.

In the award stage proceedings in respect of the Children’s Services Award a series of conferences has been held and number of submissions received. A revised exposure draft was published on 19 July 2017 and a report 32 issued on 27 July 2017 summarising the position of the interested parties in relation to technical and drafting issues. One technical and drafting issue remains to be dealt with on the papers.

There are 16 outstanding substantive issues in relation to the Children’s Services Award. A summary of outstanding substantive issues is at Attachment C to this Decision. A mention will be listed on Monday 11 September 2017 at 11:30am during which parties are to confirm which of the substantive issues in Attachment C are pressed. The substantive issues will then be referred to a Full Bench.

If we proceed with the plain language redrafting of these awards, the Aged Care and SCHADS Awards will be dealt with together.

[43] A provisional timetable outlining the next steps in first and second tranche awards is at Attachment D to this decision.

Remaining exposure drafts

[44] The clauses in Group 4 exposure drafts were re-ordered in line with the structure set out at Attachment A to the Statement issued on 10 May 2016 33 (with one change to the placement of the redundancy provision). After considering comments received from interested persons regarding those awards and throughout the plain language processes we confirm that the preferred structure of awards is that set out at Attachment E to this decision.

[45] Clauses in exposure drafts for those Group 1, 2 and 3 awards which have not been included in Tranche 1 or 2 of the plain language process will be re-ordered to comply as closely as possible to the structure set out at Attachment E to this decision. These changes will be applied to the majority of modern awards by the end of 2017 in accordance with the timetable at Attachment F.

[46] Additionally, some archaic or overly technical language will be replaced in accordance with chapter 6 of the Plain language Guidelines published on 20 June 2017. Examples of archaic language that will not be used includes the following:

‘the abovementioned’, ‘the aforementioned’, ‘the aforesaid’, ‘the said’

‘herein’, ‘hereinafter’, ‘hereinbefore’,

‘hereby’, ‘hereof’, ‘hereto’, ‘herewith’

‘thereby’, ‘therefor’, ‘therefrom’

‘therein’, ‘thereof’, ‘thereon’, ‘thereto’

‘thereupon’, ‘thereunder’, ‘thereunto’, ‘therewith’

‘whatsoever’, ‘whomsoever’, ‘whosoever’.

[47] All exposure drafts will be updated to incorporate the changes outlined above and also to incorporate the changes to the standard clauses as identified in the decision [2017] FWCFB 4419.

[48] The exposure drafts will then be published for final comment before replacing the current awards in their entirety.

PRESIDENT

Attachment A—Summary of Submissions—Substantive issues—Fast Food Industry Award 2010

This table is a summary of proposed variations lodged for this award – updated 8 March 2017.

ITEM	PARTY	DOCUMENT	CLAUSE (current award)	SUMMARY OF ISSUE	THEIR REFERENCE	NOTES
S1.	AIG	Sub-2Mar15	4	Coverage Seeks a May seek variation to coverage to avoid potential overlap with other awards.	Page 6	Not being pursued, Sub-7-Oct-16
S2.	NRA	Sub-2Mar15	8.1	Consultation Vary clause to reflect historical award provisions.	Point 4
S3.	SDA	Sub-2Mar15	11	Full-time employees Seeks to include requirement for agreement in writing ‘at time of engagement on a regular pattern of work and requirements for variation of pattern of work’.	Point 4
		Sub-3-Oct-16			Paras 5-6
S4.	SDA	Sub-2Mar15	11	Full-time employees Seeks to include minimum shift of 4 hours for full-time employees. Currently no minimum shift entitlement for full-time employees. Proposes wording.	Point 5
		Sub-3-Oct-16			Paras 7-9
S5.	NRA	Sub-2Mar15	12	Part-time employees Vary clause to introduce flexibility in rostering part-time employees.	Point 4	Referred to Part-time and Casual Full Bench in AM2014/196 and AM2014/197
S6.	AIG	Sub-2Mar15	13	Casual employment Proposes that the minimum engagement period for casual employees be changed to 2 hours instead of 3 hours.	Page 6	Being dealt with by Part-time and Casual Full Bench in AM2014/196 and AM2014/197
S7.	NRA	Sub-2Mar15	13.4	Casual employment Reduce minimum shift engagement for casual employees from 3 hours to 2 hours.	Point 4	Being dealt with by Part-time and Casual Full Bench in AM2014/196 and AM2014/197
S8.	SDA	Sub-2Mar15	19	Allowances Seeks to insert new clause which will provide all fast food employees working at airports an allowance of $6.52 or with parking at the employer’s expense.	Point 19	Not being pursued, Sub-3-Oct-16
S9.	NRA	Sub-2Mar15	19.2(b)	Allowances—special clothing Vary clause to confirm its applicability to the dry cleaning of garments.	Point 4
S9A.	AIG	Sub-7-Oct-16	19.2(b)	Allowances—special clothing Proposes laundry allowance be removed.	Para 8(a)
S10.	SDA	Sub-2Mar15	22	Payment of wages Seeks to vary clause so that all wages shall be paid on a regular pay day within 4 days of the end of the pay period.	Point 6	Further submission, Sub-3-Oct-16 – being dealt with as part of common issue AM2016/8
S11.	SDA	Sub-2Mar15	22	Payment of wages Seeks to vary clause to require the employer to notify the employee in writing as to which day is the pay day and provide 4 weeks’ written notice if they wish to change the pay day.	Point 8	Further submission, Sub-3-Oct-16 – being dealt with as part of common issue AM2016/8
S12.	SDA	Sub-2Mar15	25	Hours of work Award currently contains rostering provisions in the overtime clause which are not referred to in the hours of work clause. Proposes alternative wording.	Point 12
		Sub-3-Oct-16			Paras 11-15
S13.	SDA	Sub-2Mar15	25	Hours of work Seeks to insert a maximum roster period of four weeks into Award.	Point 14
		Sub-3-Oct-16			Paras 11-15
S14.	SDA	Sub-2Mar15	25	Hours of work Seeks to insert a new provision which would ensure employees under 18 years of age are not permitted to work in a fast food establishment after 10pm on any night.	Point 28
		Sub-3-Oct-16			Paras 33-35
S15.	RCI	Sub-4Dec14	25.5	Penalty rates Party seeks the removal of late night penalties.	Point 6	Being dealt with in AM2014/305 – Penalty rates. Decision handed down 23/02/17 – [2017] FWCFB 1001
S16.	AIG	Sub-2Mar15	25.5(a)(ii)	Hours of work Party notes the ambiguity in the application of the evening penalty and proposes end time of 5 am.	Page 7	Being dealt with in AM2014/305 – Penalty rates. Decision handed down 23/02/17 – [2017] FWCFB 1001
		Sub-7-Oct-16			Para 8(b)
S17.	BSA	Sub-2Mar15	25.5(a)(ii)	Hours of work Current clause does not indicate when the 15% penalty rate ceases to apply.	Page 9	Not being pursued as a substantive amendment, may be addressed as a technical and drafting issue, Sub-29-Sep-16
S18.	FWO	Sub-2Mar15	25.5(a)(ii)	Hours of work Current clause does not indicate when the 15% penalty rate ceases to apply.	Point 11	Being dealt with in AM2014/305 – Penalty rates. Decision handed down 23/02/17 – [2017] FWCFB 1001
S19.	AIG	Sub-2Mar15	25.5(b)	Hours of work –Saturday work Reference to “span of hours” is unnecessary and confused – it should be deleted.	Page 7
		Sub-7-Oct-16			Para 8(c)
S20.	FWO	Sub-2Mar15	25.5(e) & 26	Hours of work Unclear how clauses 25.5(e) and 26 interact.	Point 12
S21.	RCI	Sub-4Dec14	26	Overtime Seeks to reduce the over-time rate for full-time, part-time and casual employees. Provides proposed percentages.	Point 7
S22.	SDA	Sub-2Mar15	26.5	Overtime Seeks to insert wording to ensure that there is no ambiguity as to the payment of overtime for all permanent and casual employees performing work outside ordinary hours.	Point 15	Being dealt with by Part-time and Casual Full Bench in AM2014/196 and AM2014/197
		Sub-3-Oct-16			Point 16
S23.	AIG	Sub-2Mar15	27.1	Breaks Proposes greater flexibility should exist to allow for the applicable 10 minute break to be taken as a 2 x 5 minute rest break.	Page 7
		Sub-7-Oct-16			Para 8(d)
S24.	SDA	Sub-2Mar15	28	Annual leave Seeks to insert new clause, Blood and Bone Marrow Donor Leave. Proposed wording in submission.	Point 20	Being dealt with as part of AM2016/36
		Sub-3-Oct-16			Paras 24-32
S25.	SDA	Sub-2Mar15	29	Personal/carer’s leave and compassionate leave Party seeks to vary compassionate leave clause. Proposed wording in submission.	Point 16
		Sub-3-Oct-16			Paras 17-19
S26.	SDA	Sub-2Mar15	30	Public holidays Seeks to have a provision which would allow an employee who works public holidays to elect to be paid 150% and receive an equivalent day or time off in lieu of the penalty rate.	Point 17
S27.	SDA	Sub-2Mar15	Schedule B	Classifications Seeks to insert wording to ensure that employees cannot be required to exhibit clothes or other fashion articles/ accessories of a revealing or indecent manner.	Point 18
		Sub-3-Oct-16			Paras 20-22

Attachment B—Summary of Submissions—Substantive issues—Hair and Beauty Industry Award 2010

This table is a summary of proposed variations lodged for this award – updated 8 March 2017.

ITEM	PARTY	DOCUMENT	CLAUSE (current award)	SUMMARY OF ISSUE	THEIR REFERENCE	NOTES
S1.	NRA & HBIA	Sub-2Mar15	8.1	Consultation regarding major workplace change Seeks to vary clause to reflect historical award provisions.	Point 6
S2.	SDA	Sub-2Mar15	11	Full-time employees Seeks to vary clause to include ‘the requirement for agreement in writing at the time of engagement on a regular pattern of work’.	Point 4
		Sub-3-Oct-16			Paras 5-6
S2A.	SDA	Sub-3-Oct-16	11	Full-time employees Seeks to include a minimum shift of 4 hours for full-time employees.	Paras 7-9
S3.	NRA & HBIA	Sub-2Mar15	12	Part-time employees Seeks to vary clause to introduce flexibility in rostering part-time employees.	Point 6	Referred to Part-time and Casual Full Bench in AM2014/196 and AM2014/197
S3A.	HABA	Sub-13-Oct-16	12.8	Rosters Seeks to delete this clause.	Draft determination Para 1
S4.	BSA	Sub-2Mar15	19.3	Minimum rates for pre-apprentices No definition of a ‘pre-apprentice’; but there are minimum rates for a pre-apprentice. Party consulting further with members, may pursue a proposal to vary.	Page 10	Suggest that this may be a technical and drafting issue Sub-29-Sep-16, para 6
S5.	HABA	Sub-2Mar15	19.5	Apprentice conditions of employment Seeks variations to the apprentice structure as it relates to pay generally, entry level pay and adult apprentices.	Para 2.9	Not being pursued, Sub-13-Oct-16
S6.	FWO	Sub-2Mar15	19.6, 19.7 & Schedule D	Apprentices and trainees No definitions for “trainee” and “graduate” – unclear how clause 19.6 interacts with the trainee provisions separately set out under Schedule D and how to identify which employees should be regarded as a “graduate” under clauses 19.6 and 19.7.	Point 22
S7.	SDA	Sub-2Mar15	21	Allowances—airport employees allowance Seeks to insert new clause which will provide all retail employees working at airports with an allowance of $6.52 per day or shift or with parking at the employer’s expense.	Point 22	Not being pursued, Sub-3-Oct-16, point 28
S8.	SDA	Sub-2Mar15	25	Payment of wages Seeks to vary clause so that all wages shall be paid on a regular pay day within 4 days of the end of the pay period.	Point 6	Further submission Sub-3-Oct-16, being dealt with as part of common issue AM2016/8
S9.	SDA	Sub-2Mar15	29	Notification of rosters Party seeks to amend this clause. Proposes wording in submission.	Point 13
		Sub-3-Oct-16			Paras 11-13
S9A.	HABA	Sub-13-Oct-16	29	Notification of rosters Seeks to delete existing clause 29.2, renumber existing clause 29.3, insert new clauses 29.3 and 29.4, renumber existing clauses 29.4 and 29.5. Proposes wording.	Draft determination Paras 3-6
S10.	SDA	Sub-2Mar15	29.4	Casual rate for evening/weekend work Seeks to vary clause so the full casual loading for casual employees working weekends as it is currently absorbed by the weekend rates.	Point 17	Sub-3-Oct-16 noted this is being dealt with by Part-time and Casuals Full Bench in AM2014/196 and AM2014/197
S11.	SDA	Sub-2Mar15	30	Rostering principles Seeks to insert a provision for employees regularly working Sundays, to ensure that those employees are entitled to have three consecutive days off each four weeks which includes a Saturday or Sunday. Proposes wording of clause.	Point 15
		Sub-3-Oct-16			Paras 14-18
S12.	NRA & HBIA	Sub-2Mar15	30	Rostering principles Seeks to vary clause to address ambiguity and uncertainty around its application.	Point 6
S13. S14.	HABA	Sub-2Mar15	30.3	Rostering principles - Consecutive days off Seeks to vary provision to allow employers and employees to mutually agree to a pattern of work in which the employee is not provided with two consecutive days each week or three consecutive days off in a two week period.	Paras 2.4 & 2.6	Items S13 and S14 in the summary of proposed variations published 24 February 2016 have been combined into one item, as they relate to the same clause.
		Sub-13-Oct-16		Rostering principles Substitute existing clauses 30.3(b) and (c). Proposed wording in submission.	Draft determination Paras 8-9
S15.	SDA	Sub-2Mar15	31	Overtime Seeks to insert wording to ensure there is no ambiguity as to the payment of overtime for all permanent and casual employees performing work beyond ordinary hours. Seeks to also vary clause so double time is paid after 2 hours worked.	Point 16
		Sub-3-Oct-16			Paras 19-20
S16.	SDA	Sub-2Mar15 Sub-3-Oct-16	33	Annual leave—blood and bone marrow donor leave Seeks to include a Blood and Bone Marrow Donor leave clause.	Point 23 Paras 29-37	Being dealt with as part of AM2016/36
S17.	SDA	Sub-2Mar15	34	Personal/carer’s leave and compassionate leave Party seeks to vary compassionate leave clause. Proposed wording in submission.	Point 19
		Sub-3-Oct-16			Paras 22-24
S19.	SDA	Sub-2Mar15	35	Public holidays Seeks to vary clause so work on a public holiday is to be at the election of the employee and the insertion of a provision which would allow an employee who works on a public holiday to elect to be paid time and a half and receive equivalent day or time off in lieu.	Point 20
S20.	SDA	Sub-2Mar15	Schedule B	Classifications Seeks to insert into the Classification structure for all employees (Retail Employee Level 1 – 8) wording to ensure that employees cannot be required to exhibit clothes or other fashion articles/accessories of a revealing or indecent manner, as this is not part of retail duties and functions.	Point 21

Attachment C—Summary of Submissions—Substantive issues—Children’s Services Award 2010

This table is a summary of proposed variations lodged for this award. This summary has been revised on 19 April 2017 to incorporate previously omitted submissions of various parties (shown in red font)

ITEM	PARTY	DOCUMENT	CLAUSE (current award)	SUMMARY OF ISSUE	THEIR REFERENCE	NOTES
S1	UV	Sub-13Nov15	15	Allowances Seek to include two allowances to reflect the change in legislation which have created new roles. A weekly allowance for an employee appointed as an educational leader and an hourly allowance for a responsible person physically present at a child care centre.	Page 1	Withdrawn see sub-6/10/16 para 9.
S2	G8E	Sub-12Nov15	14	Minimum wages Seeks to insert clause from Educational Services (Teachers) Award 2010 at 14.2. Proposes wording for clause in Corro-2/09/16.	Page 1
S3	An individual	Sub-11Nov15	Schedule B	Classifications Seeks to insert new classifications of Educational Leader as a result of the Education and Care Services National Regulations. Seek to insert qualifications for approved anaphylaxis management training.	Para 1-2
S4	An individual	Sub-11Nov15	15	Allowances Seeks to insert allowances so the Responsible Person can be appropriately remunerated for additional responsibilities and duties.	Para 3
S5	OSHC	Sub-19Nov15	Schedule B	Classifications Education and Care Services National Regulations are not new and would impose a significant cost per year, if introduced as a new classification.	Page 1-2
S6	UV	Sub-3Mar15	4.1(d)	Coverage Seeks to vary clause to include Clerk Private Sector Award 2010.	Page 2	Moved to substantive issue summary as discussed. See Transcript Transcript 7/02/17 [PN98].
S7	AFEI	Sub-5Mar15	10.4	Part-time employment Seeks to vary clause so part-time employees may work up to 10 hours per day before overtime applies. Variation will ensure award is coherent. Provides wording in sub-4/10/16.	Point 1
S7A	AFEI	Sub-4Oct16	10.4(b) (ED)	Seeks variation to make it simpler to amend rosters of part-time employees. Provides wording in submission	Para 4-5
S8	BSA	Sub-2Mar15	10.4(e) and 10.5(e)	Casual employment Seeks to clarify wording of clauses as they could cause confusion about the applicable pay requirements in relation to 23.4(e)	Page 9	Withdrawn see corro-3/04/17. Submitted this item would be better dealt with under the technical and drafting matter. See also sub-29/09/16 para 2.4.
S9	BSA	Sub-2Mar15	10.5(b)	Casual employment Clause currently only allows for casuals to be engaged if they are required for emergencies or relief purposes – party consulting further with members and may pursue a variation.	Page 8	Being dealt with by Part-time and Casuals Full Bench in AM2014/196 and AM2014/197
S10	CCSA	Sub-2Mar15	10.5(d)	Casual employment Seeks to vary clause to reduce administrative complexity in the many small-to-medium enterprises – proposed wording in submission.	Page 3	Referred to Part-time and Casuals Full Bench in AM2014/196 and AM2014/197 Withdrawn – see sub-30/09/16
S11	CCSA	Sub-2Mar15	10.5(e) and 23.2(a)	Casual employment Seeks to remove casual loading when overtime rates are payable to casual employees.	Page 3	Referred to Part-time and Casuals Full Bench in AM2014/196 and AM2014/197 Withdrawn – see sub-30/09/16
S11A	AFEI	Sub-4Oct16	11.1 (ED)	Casual employment Proposes to remove the restriction on employing casuals for temporary and relief purposes. Provides wording.	Para 6-7
S12	ACSAE	Sub-2Feb15	14	Minimum wages Party seeks the insertion of junior rates into award.	Para 3
S13	CCSA	Sub-2Mar15	14.1	Minimum wages Seeks an additional pay level for the classification of Support Worker Level 3 as a Level 3.2 and Level 3.3.	Page 4	Withdrawn – see sub-30/09/16
S14	UV	Sub-3Mar15	15	Allowances Seeks to insert new clause/allowance for training as there is no provision currently in the award for training.	Page 5
S15	CCSA	Sub-2Mar15	15	Allowances Seeks introduction of allowances for a Nominated Supervisor, Educational Leader and Certified Supervisor.	Page 4	Withdrawn – see sub-30/09/16
S16	UV	Sub-3Mar15	15	Allowances Seeks the inclusion of a ‘Programming and Administrative’ tasks allowance for Children Service Employees that are required to perform additional programming and administrative duties in addition to their rostered hours.	Page 2
S17	CCSA	Sub-2Mar15	15.1	Allowances—broken shift allowance Seeks to clarify what constitutes a broken shift.	Page 4	Withdrawn – see sub-30/09/16
S18	BSA	Sub-2Mar15	15.2(b)	Allowances—clothing and equipment allowance Seeks to vary clause to include a maximum allowance per week – suggests similar wording to the General Retail Industry and Pharmacy Award 2010.	Page 9	Withdrawn see corro-3/04/17. See also sub-29/09/16 para 2.2.
S19	UV	Sub-3Mar15	15.2(b)	Allowances—clothing and equipment allowance Seeks to insert a note below clause – suggested wording in submission.	Page 3
S20	UV	Sub-3Mar15	15.2(c)(e)	Allowances—clothing and equipment allowance Seeks to add the words ‘hat, sun protection (including sunscreen lotions)’ before the word ‘goggles’.	Page 3
S20A	G8E	Sub-12/11/15	16.2	Minimum wages Seeks to insert clause from Educational Services (Teachers) Award 2010 at 16.2 (clause 14.2 of current award).	Page 1	Raised at hearing, may be a substantive issue. To be discussed at conference. See Transcript-6/12/16 [PN570-PN571] Moved to substantive issues conference as discussed in Transcript 7/02/17 [PN154]. Confirmed in report.
S21	CCSA	Sub-2Mar15	18.1(e)	Higher duties Party proposes deleting this clause.	Page 5	Withdrawn – see sub-30/09/16
S22	CCSA	Sub-2Mar15	18.1(e)	Higher duties Party proposes deleting this clause.	Page 5	CCSA claim withdrawn – see sub-30/09/16
S23	UV	Sub-3Mar15	18.1(e)	Seeks to delete clause or delete the phrase ‘(including in-service training)’.	Page 3
S24	CCSA	Sub-2Mar15	20.5(b)	Superannuation—absence from work Seeks to delete clause as it create administrative complexity which works against the modern awards objective. It also contradicts the Superannuation Guarantee provisions.		Withdrawn – see sub-30/09/16
S25	ABL	Sub-2Mar15	21 and 10	Ordinary hours of work and rostering Seeks to vary clause to provide employers with greater flexibility to change rosters other than with 7 days’ notice.	Pg 1
S26	ABL	Sub-2Mar15	21	Ordinary hours of work and rostering Seeks to vary clause to allow ordinary hours to be worked before 6.00 am or after 6.30 pm.	Pg 1
S27	BSA	Sub-2Mar15	21.2	Ordinary hours of work and rostering Seeks to a variation of clause to remove ambiguity regarding broken shifts and ordinary hours.	Page 9	Withdrawn see corro-3/04/17. See also sub-29/09/16 para 2.3.
S29	UV	Sub-3Mar15	21.5	Ordinary hours of work and rostering—non-contact time Seeks to vary clause by extending non-contact time to 8 hours per week.	Page 3	Withdrawn see corro-30/03/17. See also sub-6/10/16 para 4.
S30	UV	Sub-3Mar15	24.4(e)	Annual leave—taking annual leave Seeks to reduce maximum amount of leave without pay for a Christmas close down of 4 weeks to 2 weeks.	Page 4-5

Attachment D—Provisional timetable for plain language re-drafting of First and Second Tranche Awards

Attachment E—Changes to structure of exposure drafts in Group 4

Extract from Statement issued on 10 May 2016 1

¹ Note this Table of contents is taken from the exposure draft proposed for the Pharmacy Industry Award 2014; not all provisions may be included in other awards

² Note this Table of contents is proposed for the plain language exposure draft for the Pharmacy Industry Award 2014; not all provisions may be included in other awards

³ The Job search entitlement provision will be incorporated in the Termination of employment and Employee leaving during redundancy notice period provisions in accordance with the Plain language – Standard clauses decision issued on 20 July 2017 2

Attachment F—Provisional timetable for completion of awards not identified for plain language re-drafting

¹ This timetable does not apply to the awards identified for plain language re-drafting at paragraphs [4], [6] and [42].

² More complex issues may need to be referred to separate Full Bench for determination

³ Awards in Group 4 have been drafted using the preferred structure

NOTE: This timetable may be affected by the outcome of Common issues matters and claims to make substantive variations to awards that have been allocated to separate Full Benches

 1   [2016] FWC 2924

 2   [2017] FWCFB 3745

 1   [2016] FWC 4756.

 2   See [2016] FWC 2837- The 4 awards are Clerks—Private Sector Award 2010 , General Retail Industry Award 2010, Hospitality Industry (General) Award 2010 and Restaurant Industry Award 2010.

 3   [2017] FWCFB 3176 and [2017] FWCFB 4174.

 4   [2015] FWC 6555.

 5   [2015] FWCFB 6555, para 11.

 6   [2016] FWC 2837.

 7   [2017] FWCFB 1638

 8   ACTU submission, 7 April 2017, page 5.

 9   Ibid.

 10   Ibid at page 6.

 11   See Shop, Distributive and Allied Employees Association v National Retail Association (No 2) (2012) 205 FCR 227 at [35] per Tracey J.

 12   Friends of Hinchinbrook Society Inc v Minister for Environment (No 3) (1997) 77 FCR 153; Australian Competition and Consumer Commission v Leelee Pty Ltd [1999] FCA 1121; Edwards v Giudice [1999] FCA 1836; National Retail Association v Fair Work Commission [2014] FCAFC 118.

 13   National Retail Association v Fair Work Commission [2014] FCAFC 118 at [105]–[106].

 14   Ibid at [109] – [110].

 15   CFMEU v Anglo American Metallurgical Coal Pty Ltd [2017] FCAFC 123 at [20].

 16   Ibid at [28] – [29].

 17   ASIAL submission, 10 April 2017.

 18   HIA submission, 7 April 2017.

 19   MBA submission, 7 April 2017.

 20   United Voice submission, 7 April 2017, para 17.

 21   4 Yearly Review of Modern Awards – Annual Leave [2016] FWCFB 3177 at [135]–[140].

 22   See s.599 of the FW Act.

 23   National Retail Association v Fair Work Commission [2014] FCAFC 118 at [18].

 24   CFMEU v Anglo American Metallurgical Coal Pty Ltd [2017] FCAFC 123 at [18].

 25   The Australian Industry Group re Manufacturing and Associated Industries and Occupations Award 2012 [2012] FWA 2556.

 26   See [2015] FWCFB 4658 at [7].

 27   The Vehicle Award also has a high proportion of award reliant small businesses.

 28   Fast Food Industry Award, summary of submissions – substantive issues, 8 March 2017.

 29   Hair and Beauty Industry Award, summary of submissions – substantive issues, 8 March 2017.

 30   [2017] FWC 3917.

 31   Report, 17 March 2017.

 32   Report to the Full Bench, 27 July 2017.

 33   [2016] FWC 2924.

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