DECISION

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

4 yearly review of modern awards – plain language re-drafting – Restaurant Industry Award 2010
(AM2016/15 and AM2014/284)

4 yearly review of modern awards – plain language re-drafting – Restaurant Industry Award 2010.

[1] A decision issued on 24 October 2017 1 (the October 2017 Decision) determined most of the issues arising from the plain language redrafting of the Restaurant Industry Award 2010. A subsequent Statement (the December 2017 Statement)2 set out the remaining two issues. These issues were the subject of our decision of 21 May 20183 (the May 2018 decision). This decision finalises these outstanding issues.

Clause 26.2 (rest period after working overtime)

[2] Business SA has advised that it does not wish to pursue its proposed amendment to clause 26.2. 4 On that basis we do not propose to amend clause 26.2 as it appears in the revised Restaurant plain language exposure draft (the Restaurant PLED) of 22 May 2018.

Clauses 10 and 11 – Part-time and casual employment determinations 5

[3] Determinations were issued arising out of the decision in respect of the part-time and casual employment common issue, varying clauses 12, 13, 24 and 33 of the current award. The determinations were subjected to plain language re-drafting and inserted into the Restaurant PLED at clauses 10, 11, 24 and 26.

[4] Amendments to clause 10 of the Restaurant PLED were updated in the same terms as those in the Hospitality PLED in order to maintain consistency between the two awards and amendments to them in accordance with the draft determinations where appropriate.

[5] Interested parties were invited to make submissions in relation to the changes at clauses 10, 11, 24 and 26.

(i) Clause 10.4(a)

[6] United Voice submits that the reference to an employer ensuring an employee is paid for their guaranteed hours has been removed. It argues that the reference is important in ensuring that an employer is aware that the guaranteed hours are the minimum number of hours that the employee will be paid each week or roster cycle. 6

[7] Clause 12.3(a) of the current award states:

‘(a) the number of hours of work which is guaranteed to be provided and paid to the employee each week or, where the employer operates a roster, the number of hours of work which is guaranteed to be provided and paid to the employee over the roster cycle (the guaranteed hours); and’

[8] Clause 10.4(a) of the Restaurant PLED states:

‘The number of hours of work guaranteed to the employee each week (or, if the employer operates a roster, over the roster cycle) (the guaranteed hours).’

[9] United Voice submits that clause 10.4(a) should be amended as follows:

‘The number of hours of work guaranteed and to be paid to the employee each week (or, if the employer operates a roster, over the roster cycle) (the guaranteed hours).’ 7

[10] Business SA submits that United Voice’s proposed change to clause 10.4(a) is unnecessary. 8 It submits that the clause relates to the employer and part-time employee agreeing on guaranteed hours and availability only – payment is required for all hours worked by the part-time employee per clause 10.13. Retaining reference to payment rates in clause 10.4 may cause readers to mistakenly believe that the employer and part-time employee may also agree on the number of hours work to be paid; introducing the possibility that this may differ from the number of guaranteed hours.9

[11] We accept United Voice’s submission that the existing clause 12.3(a) combines two elements in the agreed guarantee: an entitlement to be provided with work for the agreed number of hours, and an entitlement to be paid for the agreed number of hours. The latter entitlement is intended to subsist independently of the former. The proposed clause 10.4(a) of the Restaurant PLED does not maintain the second entitlement, it would have the effect that, if the employer failed to provide the guaranteed hours of work, the employee would nonetheless only be entitled payment for those hours actually worked. We do not agree with Business SA’s submission. The current clause 12.3(a) does not admit of the possibility that there may be differing agreements on the hours of work to be provided and to be paid for. Accordingly clause 10.4(a) of the Restaurant PLED will be altered so that it is in the same terms as the existing clause 12.(3)(a).

(ii) Clause 10.7(a)

[12] We have decided to update clause 10.7(a) to ensure consistency of terminology within clause 10, as follows:

‘10.7 However, a part-time employee:

(a) must not be rostered to work any hours outside the employee’s availability times at which they have agreed to be available; and …’

(iii) Clause 10.12

[13] We have decided delete the words ‘as altered’ from clause 10.12 to clarify the clause and reduce repetition, as follows:

‘10.12 If the employer cannot reasonably accommodate the alteration to the part-time employee’s availability as altered under clause 10.11, then (regardless of clause 10.5): …’

(iv) Clause 10.13(b)

[14] Business SA submits that clause 10.13(b) should direct the reader to the clause containing Table 5—Overtime rates, rather than only directing the reader to Table 5. It is submitted that in order to find Table 5, the reader must either refer to clause 2—Definitions or read through the entire award until they come across the table. Business SA submits that having to refer to the definitions clause adds an unnecessary step for the reader and that navigation will be improved by clause 10.13(b) directly referring to clause 26.4. It is not opposed to clause 10.13 also referring to Table 5, but submits that the clause reference gives the reader greater assistance. 10

[15] In support of its submission, Business SA also notes:

•  Clause 10.13(a) does not refer the reader to Table 2—Minimum rates, instead clause 10.13(a) refers readers to clause 18;

•  Clause 11.6 refers the reader directly to clause 26.4 when considering overtime rates for casual employees, rather than to Table 5; and

•  The determinations PR598487 and PR599064 both directly reference the overtime rates clause (clause 33.2 of the current award). 11

[16] United Voice agrees that, for the purpose of clarity, clause 10.13 should refer to clause 26.4—Overtime rate, in addition to Table 5. 12

[17] We agree and will amend clause 10.13(b) as follows:

‘(b) An employer must pay a part-time employee at the rates prescribed in Table 5—Overtime rates in clause 28.4—Overtime rate for all time worked in excess of:’

(v) Clause 11.4

[18] United Voice submits that the current clause 13.3 ensures a casual employee will be paid for a minimum of 2 hours in a situation in which they are required to attend work for a 2 hour shift, but are then requested to leave work early, at the initiative of the employer. It is contended that the proposed clause 11.4 states that the minimum daily engagement is 2 consecutive hours, but is ambiguous as how a casual employee would be paid if the employer required them to leave work early. United Voice submits that the current wording should be retained. 13

[19] Clause 13.3 of the current award states:

‘13.3 On each occasion a casual employee is required to attend work they are entitled to a minimum payment for two hours’ work.’

[20] Clause 11.4 of the Restaurant PLED states:

‘11.4 The minimum daily engagement for a casual employee is 2 consecutive hours.’

[21] No other party made submissions in relation to clause 11.4.

[22] We agree with United Voice and will amend the Restaurant PLED so that it more closely follows the current award term, as follows:

‘11.4 A casual employee must be engaged and paid for at least 2 consecutive hours of work on each occasion they are required to attend work.’

(vi) Clause 11.6

[23] Business SA noted a drafting error in clause 11.6, which states:

‘11.6 An employee must pay a casual employee at the rates prescribed in clause 26.4—Overtime rate for all time worked in excess of the hours prescribed in clause 11.3.’

[24] Business SA submits that the first reference to ‘employee’ in 11.6 should be to ‘employer’. 14 We agree and will correct this error in the next version of the Restaurant PLED.

(vii) Clause 18

[25] Interested parties were invited to make submissions in relation to the amended ‘lead in’ words at clause 18.1 and 18.3. No party made a comment on the proposed amendments. The amendments will be adopted in the terms of the revised exposure draft.

Next steps

[26] This decision finalises the plain language re-drafting issues raised in relation to the Restaurant Industry Award 2010. A further revised PLED reflecting this decision will be published on Wednesday, 8 August 2018.

[27] We note that the review of the Restaurant Industry Award 2010 will be subject to any amendments arising from the plain language review of the Hospitality Industry (General) Award 2010 (the Hospitality award). Once the plain language re-drafting is finalised in relation to the Hospitality award, we will publish a statement proposing final amendments in order to maintain consistency between the two awards. Parties will have an opportunity to comment.

PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR609575>

 1   [2017] FWCFB 5397

 2   [2017] FWC 6873

 3   [2018] FWCFB 2559

 4   Business SA submission, 30 May 2018, paragraph 18.

 5   PR598487 and PR599064

 6   United Voice submission, 30 May 2018, page 1.

 7   United Voice submission, 30 May 2018, page 2.

 8   Business SA reply submission, 13 June 2018, paragraph 12.

 9   Business SA reply submission, 13 June 2018, paragraph 113.

 10   Business SA submission, 30 May 2018, paragraphs 20 – 22.

 11   Business SA submission, 30 May 2018, paragraph 23.

 12   United Voice submission, 13 June 2018, page 1.

 13   United Voice submission, 30 May 2018, page 2.

 14   Business SA submission, 30 May 2018, paragraph 24.