| [2018] FWC 1117 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.156 - 4 yearly review of modern awards
4 yearly review of modern awards – Plain language re-drafting – Cleaning Services Award 2010
(AM2016/15, AM2014/69)
JUSTICE ROSS, PRESIDENT |
SYDNEY, 21 FEBRUARY 2018 |
4 yearly review of modern awards – plain language re-drafting – Cleaning Services Award 2010.
[1] In this Statement we set out the next steps in the plain language project in relation to re-drafting the Cleaning Services Award 2010 (the current award) following the conference held on 8 November 2017 1 (the November conference).
[2] A plain language exposure draft of the Cleaning Services Award 2010 2 was first published on 8 September 2017. Submissions and reply submissions were received by parties in relation to the initial draft and a further plain language exposure draft3 (the revised PLED) was published on 25 January 2018.
[3] A draft summary of submissions was published on 31 October 2017. 4
[4] The November conference was listed to discuss the plain language re-drafting of the Cleaning Services Award 2010. During the conference the Commission facilitated discussions with parties with the view to resolving issues outlined in the draft summary of submissions. A transcript of the conference is available on the Commission’s website. 5 United Voice, Australian Industry Group (Ai Group), Australian Security Industry Association, Australian Business Industrial and NSW Business Chamber (AB&NSWBC) and Business SA were in attendance at the conference. A number of issues raised were provisionally resolved at this conference.
[5] Following the conference, a Statement 6 was issued on 9 November 2017 (the November Statement) inviting interested parties to confirm their position in respect of the status of several items raised in the conference. Parties were also provided an opportunity to file further submissions.
[6] Further submissions were received from the following parties:
• Ai Group (17 November 2017); 7
• Business SA (17 November 2017); 8
• United Voice (17 November 2017); 9 and
• ABI&NSWBC (20 November 2017). 10
[7] A revised Summary of Submissions11 was published on 25 January 2018 to incorporate amendments arising from the November conference and the parties’ submissions in response to the November Statement.
[8] The updated status of each item in the revised Summary of Submissions is set out below.
[9] Items 11, 15, 17, 24, 29, 39 of the revised Summary of Submissions have been withdrawn.
[10] Items 1, 2, 10, 14, 16, 22, 23, 26, 27, 28A, 30, 34A, 38, 41 and 42 of the revised Summary of Submissions have been provisionally resolved.
[11] The following items of the revised Summary of Submissions have been, in part, provisionally resolved: 4, 6, 6A, 7, 7A, 7B, 8, 25.
[12] We note that in the revised PLED 12 published on 25 January 2018 some amendments were made to address items relating to part-time employment, casual employment and minimum rates.
[13] In respect of part-time employment, the issue raised at items 6, 6A and 7 of the revised Summary of Submissions was provisionally resolved in the revised Clerks—Private Sector Award 2017 exposure draft 13 (the revised Clerks PLED) by deleting clauses 10.4 and 10.5. The Commission suggested deleting the clauses as, based on normal principles of interpretation, the award should be read as applying to everybody covered by it unless it specifically provided otherwise.14 Clauses 10.4 and 10.5 of the revised PLED have been provisionally updated on this basis.
[14] In respect of casual employment, the issue raised at item 8 of the revised Summary of Submissions was resolved by provisionally updating clause 11.1 of the revised PLED to reflect the part-time and casual employment decision of 5 July 2017. 15
[15] In respect of the minimum rates, the issue has been provisionally resolved by redrafting the lead in words to Table 2 at clause 16.1 of the revised PLED 16 to reflect the parties’ concerns and to ensure consistency with the changes made to the revised Clerks PLED17 in the Statement of 19 January 2018.18
[16] Items 18, 19, 28, 31, 33, 34 and 35 of the proposed amendments listed at Attachment A of the revised Summary of Submissions have been provisionally resolved pending the parties’ views on those changes.
[17] Items 3, 5, 9, 12, 13, 20, 32 of the revised Summary of Submissions remain outstanding. Further, items 4, 6, 6A, 7, 7A, 7B and 8 of the revised Summary of Submissions remain partially outstanding.
[18] Items 21, 25 (in part), 40 of the revised Summary of Submissions remain outstanding and are to be determined by the Full Bench with regard to submissions already made.
[19] Items 36 and 37 of the revised Summary of Submissions also remain outstanding and are to be determined by the plain language Full Bench as a separate issue. 19
[20] Parties are to confirm their position in respect of the provisionally resolved and outstanding items listed in Attachment A to this Statement at a further conference to be held on Tuesday, 6 March 2018 at 9:30am in Sydney. A notice of listing for this conference will separately be issued. An agenda for the conference is at Attachment A to this Statement.
PRESIDENT
Printed by authority of the Commonwealth Government Printer
<PR600599>
Attachment A—Agenda for second conference – Tuesday, 6 March 2018 at 9:30am
1. Provisionally-resolved items – to be confirmed
(a) Proposed amendments included in PLED:
• Clause 6 – individual flexibility arrangements (item 1)
• Clause 8 – full-time employment (item 2)
• Clause 10 – part-time employment (amendment as per Clerks; also see items 4 , 6, 6A, 7, 7A and 7B at 2(b) below)
• Clause 11 – casual employment (amendment as per Clerks; also see items 8 and 9)
• Clause 12 – classifications (item 10)
• Clause 13 – ordinary hours of work and rostering (item 14)
• Clause 14 – breaks (item 16)
• Clause 16 – minimum rates (amendments as per Clerks; not assigned an item number)
• Clause 18 – payment of wages (items 22 and 23)
• Clause 21 – allowances (items 25 in part, 26, 27 and 28A)
• Clause 23 – overtime (item 30)
• Clause 25 – annual leave (item 34A)
• Clause 32 – consultation about change of contract (item 38)
• Clause 34 – dispute resolution procedure training leave (item 41)
• Clause 39 – exclusion from obligation to pay redundancy pay (item 42)
(b) Proposed amendments listed at Attachment A of the revised Summary of Submissions (not yet included in PLED):
• Clause 14 – breaks (items 18 and 19)
• Clause 21 – allowances – meal allowance (item 28)
• Clause 23 – overtime (item 31)
• Clause 25 – annual leave (item 33, 34 and 35)
2. Outstanding items for further discussion at conference:
(a) clause 9 – full-time employment (item 3)
• Inclusion of new requirement for a full-time employee to work under an ‘agreed’ hours of work arrangement
• Whether wording is repetitive and unclear and does not take into account that causal employees could work 38 hours without being deemed full-time
(b) Clause 10 – Part-time employment (items 4, 5, 6, 6A, 7, 7A and 7B)
• Whether definition deviates from current award and is a substantive change
• Whether the manner of working ordinary hours is altered
• Reference in 10.4 and 10.5 to pro-rata entitlements and proportionate payments
• The effect of 10.6 being that an employee is allowed to dictate terms
(c) Clause 11 – casual employment (items 8 and 9)
• Whether 11.1 clearly articulates the definition of casual
• Wording – ‘in addition to’ instead of ‘on top of’ in 11.3
• Insertion of additional wording in 11.3 that creates an inconsistency
(d) Clause 12 – classifications (item 12)
• Inclusion of prescriptive term
(e) Clause 13 – ordinary hours of work and rostering (item 13)
• Inclusion of an agreed hours of work arrangement
(f) Clause 15 – work organisation (item 20)
• Whether legal meaning of clause has been altered
• Whether employees may be required to perform duties across other classifications without limitation
(g) Clause 23 – overtime – call back for non-cleaning purposes (item 32)
• Whether clause should be amended to reflect existing entitlements and improve clarity
3. Outstanding items to be determined by the Full Bench with regard to submissions already made:
(a) Clause 16 – minimum rates (item 21)
(b) Clause 21 – allowances (item 25 in part)
(c) Clause 25 – annual leave – temporary close-down (items 36 and 37) – to be considered by plain language Full Bench as a separate issue
(d) Clause 32 – consultation about change of contract (item 40)
1 Transcript – Plain language re-drafting – Security Services Industry Award 2010 and Cleaning Services Award 2010 – 8 November 2017
2 Plain language exposure draft – Cleaning Services Award 2017 - published 8 September 2017
3 Revised plain language exposure draft – Cleaning Services Award 2017 - republished 25 January 2018
4 Cleaning Services Award Draft Summary of Submissions – published 31 October 2017
5 Transcript – Plain language re-drafting – Security Services Industry Award 2010 and Cleaning Services Award 2010 – 8 November 2017
6 [2017] FWC 5874 – published 9 November 2017
7 Australian Industry Group Submissions – 17 November 2017
8 Business SA Submissions – 17 November 2017
9 United Voice Submissions – 17 November 2017
10 Australian Business Industrial and NSW Business Chamber Submissions – 20 November 2017
11 Cleaning Services Award Revised Summary of Submissions – published 25 January 2018
12 Revised plain language exposure draft – Cleaning Services Award 2017 - republished 25 January 2018
13 Revised plain language exposure draft – Clerks –Private Sector Award 2017 – republished 1 December 2017
14 [2018] FWC 411 at [18] – published 19 January 2018.
15 [2017] FWCFB 3541 – published 5 July 2017
16 Revised plain language exposure draft – Cleaning Services Award 2017 - republished 25 January 2018
17 Revised plain language exposure draft – Clerks –Private Sector Award 2017 – republished 1 December 2017
18 [2018] FWC 411 at [74] – published 19 January 2018.
19 [2017] FWCFB 5861 – published 9 November 2018