DECISION

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

4 yearly review of modern awards – Award stage – Group 2
(AM2014/198 and others)

4 yearly review of modern awards – award stage – exposure drafts – technical and drafting issues – Group 2 awards – outstanding issues.

CONTENTS

ABBREVIATIONS

1. Introduction

[1] Section 156 of the Fair Work Act 2009 (the Act) requires the Fair Work Commission (the Commission) to review all modern awards every four years (the Review). In the Award stage of the Review the 122 modern awards have been divided into 4 groups. This decision deals with a number of outstanding technical and drafting issues arising out of Group 2 of the Award stage. The 19 awards allocated to Group 2 are listed at Attachment A to this decision.

[2] This decision is the second decision dealing with the technical and drafting issues in the awards in Group 2 and should be read in conjunction with the decision issued on 10 October 2016 1 (the October 2016 decision).

[3] In addition to the October 2016 decision, this decision should be read in conjunction with earlier decisions and statements concerning the Review, in particular the decisions of 23 December 2014 2 (the December 2014 decision), 13 July 20153 (the July 2015 decision) and 30 September 20154 (the September 2015 decision), in which the Commission dealt with a number of general drafting and technical issues common to multiple exposure drafts.

2. Review of Group 2 awards

[4] An initial conference was held in relation to Group 2 awards on 23 October 2014. Parties filed submissions about the variations they sought to the Group 2 awards and a further conference was held on 2 December 2014. Exposure drafts of the Group 2 awards were published in December 2014. Due to issues arising in relation to Group 1 awards, the programming for Group 2 awards was revised in order to finalise certain issues in Group 1 prior to the Group 2 hearings. Submissions and submissions in reply were received in relation to the technical and drafting issues in Group 2 exposure drafts in July and August 2015. Hearings were held in October 2015. Following those hearings, additional conferences were held before single members to work through remaining technical and drafting issues. The Group 2 exposure drafts were republished in accordance with the decisions on general drafting and technical issues common to multiple exposure drafts and changes resolved through the conference process were also incorporated.

[5] As previously mentioned, a decision was issued in relation to Group 2 awards in October 2016. That decision dealt with a large number of technical and drafting issues relating to these awards. The exposure drafts were then republished to incorporate the changes in that decision, as well as other amendments arising out of common issues that had been determined. Interested parties were provided an opportunity to make submissions on the revised exposure drafts, and these submissions were received in November and December 2016.

[6] On 9 June 2017, the Commission issued a Statement 5 (the June 2017 Statement) identifying a number of outstanding technical and drafting issues in the Group 2 exposure drafts. Interested parties were directed to file written submissions identifying additional errors and technical and drafting issues. A number of submissions were received in response to this June 2017 Statement. This decision deals with submissions made by parties in response to the October 2016 decision and also in response to the June 2017 Statement.

[7] To assist with identifying the outstanding issues in relation to each exposure draft in Group 2, the Commission published a summary document relating to the status of the outstanding technical and drafting issues on 13 September 2018 (the summary of status document). This summary document identifies each outstanding issue by item number.

Facilitative provisions

[8] Each exposure draft contains a table of facilitative provisions. In their submission of 30 June 2017, Ai Group 6 sought to remove references to annual leave in advance and cashing out of annual leave from the table of facilitative provisions in the following Group 2 exposure drafts:

•  the Corrections and Detention (Private Sector) Award 2015 (the Corrections Award)

•  the Health Professionals and Support Services Award 2015 (Health Professionals Award)

•  the Horse and Greyhound Training Award 2010 (Horse and Greyhound Award)

•  the Nurses Award 2010 (the Nurses Award)

•  the Racing Industry Ground Maintenance Award 2010 (the Racing Industry Award)

•  the Road Transport (Long Distance Operations) Award 2010 (the Long Distance Award)

•  the Road Transport and Distribution Award 2010 (the Road Transport Award)

•  the Seafood Processing Award 2010 (the Seafood Processing Award)

•  the Storage Services and Wholesale Award 2010 (the Storage Services Award)

•  the Transport (Cash in Transit) Award 2010 (the Cash in Transit Award) and

•  the Waste Management Award 2010 (the Waste Management Award).

[9] Consistent with the previous Full Bench decision on this point, we disagree with Ai Group’s submission and decline to remove these provisions from the facilitative provisions list in any of these Group 2 exposure drafts.  7

2.1 Alpine Resorts Award 2010

[10] A revised exposure draft 8 for the Alpine Resorts Award 2010 (the Alpine Award) was republished following the June 2017 statement.9 The June 2017 Statement identified one outstanding technical and drafting issue to be resolved in relation to the Alpine Award. In response to the June 2017 Statement, (which called for parties to review any errors in the republished exposure draft and any outstanding technical and drafting issues), one submission was received from the Australian Ski Areas Association (ASAA). 10 The ASAA submitted that there was one further outstanding item which deals with the equivalency of snowsport qualifications.

[11] The two outstanding matters to be determined are listed as items 1 and 2 of the summary of status document and are dealt with below.

Item 1—Applicable hourly rate

[12] Ai Group submit that the exposure draft uses both the terms “minimum hourly rate” and “applicable hourly rate” throughout. 11 Ai Group submit that “minimum hourly rate” is intended to refer to the minimum rate prescribed by the award12 consistent with the approach taken by the Commission in other exposure drafts. Clause 13.1 and 13.2 of the exposure draft set out ‘minimum hourly rates’ for Alpine resort workers and Snowsport instructors.

[13] Ai Group submitted that the exposure draft also contains a definition of “applicable hourly rate” as follows:

‘applicable hourly rate means the relevant rate for the classification the employee is working under as set out in clause 13 – Minimum wages’

[14] Ai Group submit that the two terms are synonymous 13 and that the use of interchangeable terminology is confusing; the exposure draft should adopt consistent terminology; and that the relevant phrase should be “minimum hourly rate”.14

[15] The term ‘applicable hourly rate’ was used in the Exposure Draft due to the loading of 8.33% for seasonal employees, which formed part of a seasonal employee’s rate for the purposes of overtime and penalties. This loading was removed from the award in December 2017 15 by the Full Bench constituted to deal with the substantive issues in the Alpine Award (AM2016/30). Due to the removal of the loading, the term ‘applicable hourly rate’ no longer needs to be used. We will therefore replace the term ‘applicable hourly rate’ with ‘minimum hourly rate’ as sought by Ai Group.

Item 2—Equivalency of Snowsports Qualifications

[16] The ASAA submit that Table 5 of Schedule B (Equivalency of Snowsports Qualifications) to the exposure draft contains an error. It submits that the letters ‘IVSI’ should appear after the qualification ‘BASI (Ski & SB) Level 4 ISTD BASI (Ski Coach) Level 4 Coach’. 16 The abbreviation IVSI refers to the International Federation of Ski Instructors.

[17] Schedule B of the exposure draft contains a number of tables which outline Equivalency of Snowsports Qualifications. The ASAA sought variations to Schedule B of the exposure draft in submissions filed 15 July 2015. 17 The ASAA submit that the variations were pressed due to the recent name change of certification levels by the Australian Professional Snowsports Instructors.

[18] In his Report to the Full Bench, 18 Deputy President Bull noted that it was agreed between the parties that the draft variation for Schedule B, filed by ASAA on 15 July 2015, should be reflected in the exposure draft. The exposure draft published 19 April 201619 included the variations as proposed by ASAA, set out as agreed changes in red text.

[19] The draft provided by ASAA on 15 July 2015 does include the letters “IVSI” after the qualification ‘BASI (Ski & SB) Level 4 ISTD BASI (Ski Coach) Level 4 Coach’. The exposure draft published 19 April 2016 does not include those letters. The letters ‘IVSI’ were excluded by administrative error. These letters are an acronym of International Federation of Snowsport Instructors (when written in German). 20 The exposure draft will be updated to reflect this change.

[20] There are no outstanding technical and drafting matters for this Full Bench to determine in relation to the Alpine Award. As mentioned previously, a number of substantive issues in this award have been dealt with by a separately constituted Full Bench in AM2016/30. 21

2.2 Animal Care and Veterinary Services Award 2010

[21] A revised exposure draft 22 for the Animal Care and Veterinary Services Award 2010 (the Animal Care Award) was published following the June 2017 statement. The June 2017 Statement identified one outstanding technical and drafting issue to be resolved in relation to the Animal Care Award. The outstanding item is outlined at item 1 of the summary of status document and is dealt with below.

Item 1—Veterinary surgeons

[22] This issue relates to ‘on call duty’ for veterinary surgeons. The issue was dealt with in the October 2016 decision 23 but following this decision the AVA wrote to the Commission in relation to the issue and it was therefore included as an outstanding item in the June 2017 Statement.

[23] In the October 2016 decision, we decided to insert a note in clause 11.2(a)(i) of the exposure draft which deals with ‘on call duty’ for veterinary surgeons. Clause 11.2(a)(i) of the exposure draft currently reads:

11.2 Wage related allowances—veterinary surgeons

(a) On call duty

An associate required to be on call will receive a minimum amount of $39.63 for each period of on call duty. A new period of such duty will be deemed to commence each 24 hours if continuous on call duty is required.

(i) An associate who performs active on call duty will be paid at no less than the relevant hourly rate for the duration of active duty.

Note: An associate is not in receipt of a day off for the purposes of Clause 8.3(c) if they perform scheduled active on call duty on that day.

[24] In the October 2016 decision we dealt with this issue as follows:

‘[23] . . . In the conferences before Commissioner Roe interested parties generally agreed that a note is required in clause 11.2(a)(i)—On call duty to clarify the relationship to clause 8.3(c), which provides for a ‘minimum of three full days off per fortnight’ for veterinary surgeons. Parties generally support the note reading: “Note: An associate is not in receipt of a day off for the purposes of Clause 8.3(c) if they perform scheduled active on call duty on that day”. The Ai Group and the AFEI [Australian Federation of Employers and Industry] wish to ensure that there is no implication that on-call time is to be considered ‘ordinary hours of work’. The AVA [Australian Veterinary Association] seeks to replace “perform scheduled active on call duty on that day” with ‘if they are required to be on call on that day’.

[24] The current Award and the exposure draft provide that “on call duty is not counted towards ordinary hours of duty or extra hours of duty”.

…

[26] The AVA in its submission argues that the three full days off per fortnight should not include any period of on call. The AVA submits that the majority of employer veterinarians interpret the current provision in this manner, and that because on call duty is very common in the industry, veterinarians will be effectively denied a three day break each fortnight if on call duty can be required on these three days off.

[27] We accept the AVA submission that veterinarians cannot enjoy three full days off if they have to be ready and available to work on those days. However, we consider that the current Award does not prevent veterinarians from being on call on their days off and a veterinarian is still on a day off even if they are on call for the purposes of the Award. If a veterinarian is actually required to work on a day off then they are on active on call duty and that day is no longer regarded as a day off for the purposes of the right to three full days off in a fortnight.

[28] We do not consider that the AVA has made a sufficient case to vary the Award to exclude on call duty on at least three days per fortnight. We will not vary the exposure draft.’ 24 (footnotes omitted)

[25] On 6 December 2016 25, correspondence was received from the AVA in relation to our decision. In that correspondence, AVA submit they do not support the terms of the note and they request that the note be removed.

[26] We determined this matter in the October 2016 decision. The submission received from the AVA has not persuaded us to revisit the issue.

[27] There are no outstanding technical and drafting matters for this Full Bench to determine in relation to the Animal Care Award.

2.3 Aquaculture Award 2010

[28] A revised exposure draft for the Aquaculture Award 2010 (the Aquaculture Award) was published on 13 June 2017 26, following the June 2017 Statement. The June 2017 Statement noted that there were no outstanding issues in relation to the Aquaculture Award and no further submissions were received.

[29] There are no outstanding technical and drafting matters for this Full Bench to determine in relation to the Aquaculture Award.

2.4 Corrections and Detention (Private Sector) Award 2010

[30] An exposure draft 27 for the Corrections Award was republished on 13 June 2017, following the June 2017 statement. The June 2017 statement noted there were no outstanding matters in relation to this award. One submission was received from Ai Group28 relating to the list of facilitative provisions contained in the exposure draft for the Corrections Award. We have dealt with this issue above at paragraphs [8] and [9].

[31] There are no further outstanding items in relation to this award.

2.5 Fire Fighting Industry Award 2010

[32] A revised exposure draft 29 for the Fire Fighting Industry Award 2010 (the Fire Fighting Award) was published following the June 2017 Statement. The June 2017 Statement identified five outstanding matters in relation to this award. No further submissions relating to the outstanding items were received in response to the June 2017 Statement.

Item 1—Ordinary hours of work and rostering

[33] At clause 9 of the exposure draft, the Commission posed the following question to interested parties:

‘Parties are asked to clarify whether public sector employees can work on other than a shift roster (i.e. day work referred to in clauses 9.4(e) and 9.5(d)).’

[34] Due to renumbering affecting the clause, the clause references in the Commission query above should be to clauses 9.5(e) and 9.6(d) of the revised exposure draft.

[35] The AWU made a submission regarding this issue in 2015. They submit that public sector employees can work on an arrangement other than the 10/14 roster and referred to the following extract of the 4 December 2009 Award Modernisation Full Bench decision:

‘We acknowledge that the 10/14 roster is the standard method for arranging the work of most firefighters in the various public sector fire services in Australia. It is workable in a large fire service which operates fire stations on a 24 hours a day, seven days a week basis. However, we are not persuaded that a public sector employer covered by a modern award for the fire fighting industry should be prevented from employing firefighters except on a 10/14 roster. … In the public sector [the award] permits employment on bases other than the 10/14 roster provided that the employee receives no less than they would have received on the 10/14 roster.’  30

[36] The AWU submit that if a public sector employee is working any arrangement, including day work as referred to in clauses 9.5(e) and 9.6, they must be paid as if they were working a 10/14 roster, with no loss of shift penalty. 31

[37] The Country Fire Authority (CFA) also made a submission regarding this issue in 2015, referred to the above passage of the 4 December 2009 Award Modernisation Full Bench decision 32 and submit that it is clear that it is possible for employees to work on other than a shift roster.33

[38] Similarly, the Metropolitan Fires and Emergency Services Board (MFB) rely on the abovementioned passage of the 4 December 2009 Award Modernisation Full Bench decision 34 and submit that the 10/14 roster system is the standard method of arranging the work of most public sector firefighters. However, in the MFBs view this does not and should not prevent employing firefighters on different arrangements.35

[39] The United Firefighters’ Union of Australia (UFU) submit that as a result of the Full Bench decision in [2016] FWCFB 8025, 36 aside from work on ‘other than a shift roster’ as provided for in the award as a result of that decision, employees cannot work on other than the 10/14 roster.37

[40] A decision dealing with substantive issues in relation to this award,  38 explained that the 10/14 roster system (employees engaged on a 38 hour week, over a period of eight weeks, being two 10 hour day shifts followed by two fourteen hour night shifts) existed in predecessor awards to the Fire Fighting Award and has been the standard method for arranging the work of most firefighters in the various public sector fire services in Australia.39

[41] Despite this observation, the Full Bench determined that part time provisions should be inserted into the award to meet the modern awards objective, and a determination giving effect to that decision was issued on 15 November 2016.

[42] The determination inserts a new clause at clause 22.4 of the current modern award which states as follows:

‘22.4 Day work

Employees may be employed on day work in which they may be required to work up to 10 ordinary hours per day, between the hours of 7.00 am and 6.00 pm, Monday to Sunday. If the employer and a majority of affected employees agree, up to 12 ordinary hours per day may be worked.’

[43] It appears to be unclear what rate of pay public sector day workers are paid under the new provisions. On one view they are paid the same as the 10/14 roster, however clause 10.3(f) of the exposure draft sets out the following:

(f) A part-time employee employed under the provisions of this clause must be paid for ordinary hours worked at the rate of 1/38th of the appropriate weekly rate prescribed in clause 15 – Minimum wages—public sector.

[44] This issue will be subject of a conference before Justice Ross at 10.00am on Wednesday 7 November 2018.

Item 2—Definition of overtime – public sector

[45] At clause 20.1 of the exposure draft the Commission posed the following question to interested parties:

‘Parties are asked to comment on whether the reference to the ‘minimum weekly rate’ in clause 20.1(c) should be to the ‘total weekly wage in clause 13.

(original emphasis)

[46] In the exposure draft published on 15 December 2014, clause 20.1(c) appeared in the following terms:

‘To remove doubt, no additional payment is made to an employee in respect of the average of two hours a week of overtime incorporated in the minimum weekly rate payable to the employee.’

[47] This provision appears at clause 20.1(e) of the June 2017 exposure draft.

[48] In response to the Commission’s question, the UFU (relying on earlier submissions filed in November 2015) submit that the reference should be to the total weekly wage in clause 13. The UFU submit that, “[t]he intention of the clause is to prevent any additional payment for overtime where payment has already been provided as part of the ‘total weekly wage’. The minimum weekly wage does not provide payment for overtime.” 40

[49] The MFB 41 and the CFA42 also submit that the reference in clause 20.1(e) should be to the ‘total weekly wage’.

[50] The AWU submit that the clause should read:

‘To remove doubt, no additional payment is made to an employee in respect of the average of two hours a week of overtime already incorporated into the amount payable to the employee under Clause 13 – Minimum wages – public sector.’ 43

[51] We agree that the reference in clause 20.1(e) of the exposure draft should be to the ‘total weekly wage’ rather than the ‘minimum weekly rate’. The clause applies to shiftworkers on the 10/14 roster and refers to the two hours of overtime that the ‘total weekly wage’ provides compensation for. We will amend clause 20.1(e) as follows:

‘To remove doubt, no additional payment is made to an employee in respect of the average of two hours a week of overtime incorporated in the total weekly wage payable to the employee.’

Item 3—Definition of overtime – private sector

[52] At clause 20.2(b)(ii) of the exposure draft published on 15 December 2014 the Commission posed the following question:

‘Parties are asked to clarify when overtime for shiftworkers, other than those on 10/14 roster, is payable. Is it payable at the same rate as for shiftworkers on 10/14 roster?’

[53] This query now appears at clause 20.3(b)(ii) of the June 2017 exposure draft. Clause 20.3(b)(ii) of the June 2017 exposure draft reads:

‘(ii) For a shiftworker not working on a 10/14 roster, overtime is any time required to be worked:’

[54] Clause 20.3(b)(i) of the June 2017 exposure draft provides the definition of ‘overtime’ for shiftworkers working a 10/14 roster in the private sector and is as follows:

‘20.3 Definition of overtime—private sector

…

(b) Shiftworkers

(i) For a shiftworker working a 10/14 roster, overtime is any time required to be worked:

● in excess of a rostered shift; or

● in excess of four shifts in any one week.’

[55] In response to the Commission’s question, the UFU (relying on earlier submissions filed in November 2015) submit that “…overtime should be payable to shift workers not working a 10/14 roster on the same basis as those working a 10/14 roster. Specifically, overtime should be paid where a fire fighter works outside their rostered shifts or works more than 4 shifts in any week.” 44

[56] The AWU submit that employees in the private sector who are not on a 10/14 roster system are entitled to overtime where they work outside the ordinary hours in clause 10.2 and 10.4(b). 45 The AWU proposed the following amendment to the wording of the clause as follows:

‘For a shiftworker not working on a 10/14 roster, overtime is any time required to be worked:

● In excess of the maximum hours on any shift in Clause 10.4(b)—Shift rosters, or

● In excess of 38 hours per week, which may be averaged in accordance with Clause 10.2—Ordinary hours of work’ 46

[57] The MFB submit that it is appropriate for overtime provisions to payable on the same basis as for workers on a 10/14 roster. 47

[58] The MFB and AWU agree that shiftworkers not working on a 10/14 roster should be entitled to the same overtime provisions payable to shiftworkers working a 10/14 roster.

[59] The AWUs proposed solution provides overtime on a different basis.

[60] It appears to us that it would be inappropriate for shiftworkers not working a 10/14 roster to receive overtime for time worked in excess of four shifts per week as that provision is specific to the work arrangements under a 10/14 roster system. The proposal by the AWU however appears to have some merit in that it provides overtime for shiftworkers working in excess of either the maximum hours per shift allowed under clause 10.4(b) or for working in excess of an average of 38 hours over a cycle of up to eight weeks (as provided in clause 10.2).

[61] It is our provisional view that it is appropriate for the exposure draft to clearly set out the overtime provisions for shiftworkers not working on a 10/14 roster. It is our provisional view that the approach of the AWU is preferable as it provides a fair basis for the provision of overtime for shiftworkers not working the 10/14 roster. Parties are asked to file a written submission on our provisional view no later than 4.00 pm on Wednesday 10 October 2018. The issue will then be subject of the conference to be convened by Justice Ross at 10.00am on Wednesday 7 November 2018.

Item 4—roster employees and other public sector employees

[62] At the end of clause 22 of the exposure draft published 15 December 2014, the Commission posed the following question to interested parties:

‘Parties are asked to consider whether a provision should be inserted in clause 22 to clarify the rate of pay for an employee on annual leave.’

[63] The question was raised in relation to the following wording extracted from clause 28.3 of the current award:

‘(a) Notwithstanding clause 28.2, a full-time employee working the 10/14 roster and other full-time employees of public sector employers will be entitled to 65.06 days annual leave per annum inclusive of the NES. Part-time employees working the 10/14 roster will be entitled to annual leave on a pro rata basis of 65.06 days annual leave per annum inclusive of the NES. Such leave is to be taken on the following basis:

(i) for full-time employees subject to the 10/14 roster, such leave will be taken in periods of 28 calendar days within alternating periods of 20 weeks and 24 weeks; and

(ii) for other employees not subject to the 10/14 roster and for part-time employees, such leave will be taken within periods as reasonably prescribed by the employer. These employees will be required to take any public holiday on the date reasonably prescribed.

(b) Where an employee leaves their employment they will be entitled to pro rata payment instead of the annual leave provided in this clause for such broken periods of service calculated on the basis of 21.67% of the ordinary wage payment received by the employee during such period.’

[64] In response to the Commission’s request, the UFU (relying on earlier submissions filed in November 2015) submit that while not necessary, such a clarification would be desirable. 48 This submission is made on the assumption that the ‘clarification’ made is the note in clause 22.149 of the exposure draft that provides the following:

‘NOTE: Where an employee is receiving overaward payments such that the employee’s base rate of pay is higher than the rate specified under this award, the employee is entitled to receive the higher rate while on a period of paid annual leave (see ss.16 and 90 of the Act).’

[65] The AWU submit that a provision clarifying the rate of pay for an employee on annual leave would be desirable. 50

[66] The MFB submit that the current wording of clause 22 of the exposure draft is adequate.

[67] The CFA submit that it does not consider that any useful purpose would be served by inserting a provision concerning the rate of pay for an employee on annual leave. 51

[68] The issue that the Commission sought to clarify with its question to parties was whether the rate of pay for an employee whilst on annual leave would be at the total weekly rate (where applicable), the ordinary hourly rate (where applicable), or on some other basis.

[69] It appears that clause 28.3(b) of the current award envisages that, at least for an employee who leaves their employment, the pro rata amount would be based on the employee’s ‘ordinary wage payment’. The current award is otherwise silent about the appropriate rate of pay. The note inserted into the exposure draft at clause 22.1 clarifies the situation where an employee receives overaward payments but sheds no light on the applicable award rate while on annual leave. In the absence of the award providing a higher rate, it is likely that the NES base rate of pay would apply.

[70] In the October 2016 decision, we stated the following:

‘Due to the different rates of pay used for various purposes in this award (i.e. minimum hourly rate, ordinary hourly rate and total hourly rate) we consider it would be of assistance to insert a provision to clarify the rate of pay for an employee while on annual leave. However, it is not clear which rate of pay should be paid to an employee while on annual leave. The options appear to be either the ‘ordinary hourly rate’ or the ‘total hourly rate’. The answer to that question may depend on whether the employee is a shiftworker or not. We propose to provide an opportunity for the parties to comment on which rate(s) of pay is to be specified through written submissions.’ 52

[71] No submissions regarding the rate of pay to be specified have been received since the October 2016 decision. Parties are provided an opportunity to file a written submission in relation to this issue. Submissions should be filed no later than 4.00 pm on Wednesday 10 October 2018. The issue will then be subject of the conference to be convened by Justice Ross at 10.00am on Wednesday 7 November 2018.

Item 5—Definitions – public sector employee and private sector employee

[72] In the definitions schedule of the exposure draft the Commission asked parties to comment on whether they believed definitions of ‘public sector employee’ and ‘private sector employee’ were necessary.

[73] In response to the Commission’s query, the UFU submitted that the terms are well understood within the industry and do not require definition. 53

[74] The CFA and MFB submit that they do not consider that any useful purpose would be served by including a definition for either term. 54

[75] We agree with the UFU and accept that the terms are well understood within the firefighting industry and have decided that, in the absence of any support for the proposal, definitions of ‘public sector employee’ and ‘private sector employee’ will not be included in the exposure draft.

2.6 Graphic Arts, Printing and Publishing Award 2010

[76] An exposure draft 55 for the Graphic Arts, Printing and Publishing Award 2010 (the Graphic Arts Award) was published following the June 2017 statement. The June 2017 Statement noted four outstanding matters in relation to the award. Ai Group,56 ABI & NSWBC57 and Fairfax Media58 filed submissions in response. Ai Group,59and AMWU60 also filed submissions in relation to outstanding technical and drafting issues following the October 2016 decision. The parties’ submissions were arranged by item number in the summary of status document that was published on 12 September 2018.61 Item 6 was referred to the Plain Language Full Bench (AM2016/5).62

[77] Items A1, 1, 2, 3, 4, 5 and 5A remain outstanding.

Item A1—Casual loading – list of matters

[78] Ai Group submitted that, consistent with the Commission’s approach concerning other exposure drafts, the list of matters in lieu of which casual loading is paid should be deleted. Ai Group submitted that this list, appearing at clause 6.4(b)(iii) is unnecessary and does not ‘accurately describe the various factors that are intended to be compensated by payment of the casual loading.’ 63 Consistent with the approach outlined in the December 2014 decision64, the exposure draft published 13 June 201765 removed this list at clause 6.4(b)(iii). The matter is resolved.

Items 1 and 2—Payment of wages and Overtime, penalties and public holidays

[79] Ai Group submits that, consistent with earlier decisions of the Commission, the term ‘time and a half’ appearing in clause 18.5 should be replaced with ‘150% of the ordinary hourly rate’. Ai Group submits this ‘will make clear that the relevant penalty is to be calculated by reference to the award-prescribed rates and does not include over-award amounts.’ 66

[80] Clause 18.5 of the exposure draft appears in the following terms:

‘If an employee is paid wages by cash and wages are not paid within ordinary working hours, all non-working time during which an employee is kept waiting for payment of wages will be paid at time and a half. The penalty in clause 18.5 will not apply where the delay is beyond the employer’s control.’ (original emphasis)

[81] Ai Group raises the same issue in relation to clauses 24.2(b), 24.3(a), 24.3(b), 24.4(a), 31.3 and 31.4 67, submitting that the terms ‘time and a half’, ‘double time’, and ‘double time and a half’ should be replaced with the terms ‘150% of the ordinary hourly rate’, ‘200% of the ordinary hourly rate’, and ‘250% of the ordinary hourly rate’, respectively.

[82] This issue was raised by the Ai Group in earlier submissions in 2015. 68 The AMWU and Printing Industries Association of Australia (IPAA) sought to retain the current wording in the award.69 ABI & NSWBC were not opposed to changing the overtime amounts to percentages.70

[83] Deputy President Bull conducted a conference of interested parties on 18 November 2015 and produced a Report to the Full Bench on 8 December 2015 71 which outlined the matters discussed at the conference and the outcome reached between the parties. In relation to this issue, the Report indicates that there is to be no change to percentages “as overtime appears to be compounding on shift work rates”.72

[84] The Report to the Full Bench indicates that this matter was agreed between the parties, however it appears that Ai Group, at least, no longer agrees with keeping the provisions as they appear in the current award.

[85] In the July 2015 decision we stated the following in relation to the terms “double time” and “200%”:

‘(vii) Double time versus 200%

[95] The AMWU and TCFUA, supported by a number of other unions submitted that replacing terms such as ‘time and a half’ and ‘double time’ with ‘150% of the minimum hourly rate’ or ‘200% of the minimum hourly rate’ (or ‘200% of the ordinary hourly rate’ in awards where there is an all purpose payment) reduces an employee’s entitlements under the award. They argue that where an employee is receiving an overaward payment, it is the higher rate that should be multiplied to calculate the amount payable. 66

[96] Modern awards provide a safety net of minimum entitlements. The modern award prescribes the minimum rate an employer must pay an employee in given circumstances. Overaward payments, while permissible, are not mandatory. Further, if an employer chooses to pay an employee more than the minimum amount payable for ordinary hours worked, the employer is not required to use that higher rate when calculating penalties or loadings. We are not persuaded by the submissions advanced by union parties and do not propose to replace the terms 150% and 200% with time and a half or double time, etc.’

[86] There is some complexity in this award as to how rates of pay are to be calculated in relation to the interaction with penalty rates. Clause 31.3 of the current award, which is reflected in clause 21.3(c) of the exposure draft, is as follows:

‘(c) The shift allowance is part of the employee’s weekly wage for the purpose of calculating the overtime rate payable in accordance with this award.’

[87] This means that overtime is compounded on the penalty rate. If we were to make the overtime rates a percentage of the ‘ordinary hourly rate’ this would remove the compounding of the penalty and lower the overtime rates for shiftworkers. We do not wish to introduce a new term or reference rate into the exposure draft as this risks increasing the already complex nature of these provisions. It is not our intention to change entitlements as part of the technical and drafting stage of this process. We have decided that the references to the terms ‘time and a half’, ‘double time’, and ‘double time and a half’ in the exposure draft, which reflect the current award, will be maintained.

Item 3—Definition of ‘ordinary hourly rate’

[88] Ai Group submits that, as the exposure draft contains all-purpose allowances and uses the term ‘ordinary hourly rate’, a definition of ‘ordinary hourly rate’ should be included in the exposure draft. Ai Group submits that this would help ensure that the award is simple and easy to understand. 73

[89] The phrase ‘ordinary hourly rate’ appears in the exposure draft in two different contexts. The first is as a reference rate in relation to penalties, for example clause 20.3 provides that day workers who work ordinary hours on Saturday or Sunday will be paid at ‘200% of the ordinary hourly rate”. The expression of these rates differs from the expression in the current award of equivalent provisions which sets the rate at ‘double time’. The second is in clause 20.3(e)(ii) and relates to a one off payment for work on a Saturday which is ‘equal to four times the ordinary hourly rate of pay calculated on the award classification level rate…’. The exposure draft currently contains a definition of the phrase ‘hourly rate which is as follows:

hourly rate means the weekly wage prescribed by this award for the work performed divided by the number of hours which constitute the employee’s ordinary working week. In the event of an employee being employed on shiftwork the penalty payable for work at such hours will be part of the weekly wage of that employee

[90] The definition from the July 2015 decision of ordinary hourly rate for awards that have all purpose allowances that apply to some employees is as follows:

ordinary hourly rate means the hourly rate for the employee’s classification specified in clause X, plus any allowances specified as being included in the employee’s ordinary hourly rate or payable for all purposes

[91] There are a number of options to address this issue. There are a number of problems with retaining the exposure draft in its current form. Firstly, the exposure draft now contains a number of provisions expressed as a percentage of the ordinary hourly rate and it would be unclear how the definition for hourly rates interacts with this definition. Secondly, the ‘hourly rates’ definition does not account for the fact that the award now contains hourly rates of pay as it provides how to calculate the hourly amount from the weekly amount. This is unnecessarily complex as the award now contains minimum hourly rates that have been calculated based on the 38-hour week.

[92] One option may be to maintain the hourly rates definition, in some form, and include the standard ‘ordinary hourly rates’ definition. As the exposure draft currently refers to the ‘hourly rate’ in a number of places this would mean that those rates would also have a definition. However the two definitions overlap and this would create an ambiguity in the document.

[93] A further option would be to include the standard definition of ‘ordinary hourly rate’ as set out in the July 2015 decision and remove the definition of ‘hourly rate’. Our preliminary view is that it would be unnecessary to modify that definition to include the part of the ‘hourly rate’ definition that deals with the shift penalty as the award has preserved that distinction by maintaining the language of ‘double time’ and ‘time and a half’. All instances of the phrase ‘hourly rate’ would be changed to ‘ordinary hourly rate’. Our provisional view is that this option would clarify the operation of this award and we propose to insert the following definition:

ordinary hourly rate means the hourly rate for the employee’s classification specified in clause 8.2, plus any allowances specified as being included in the employee’s ordinary hourly rate or payable for all purposes

[94] Parties have until 4.00 pm on Wednesday 10 October 2018 to provide further comment on the proposed definition and the proposed change of any reference from ‘hourly rate’ to ‘ordinary hourly rate.

Item 4—Level 2 — facilitation by majority or individual agreement

[95] ABI and the AMWU submit that a minor error exists in clause 5.5(c) of the exposure draft. Clause 5.5(c) deals with facilitative provisions and in particular, facilitation by majority or individual agreement. Clause 5.5(c) is in the following terms:

‘(c) Where no agreement has been reached by the employer with the majority of employees in accordance with clause 5.5(b), the employer may reach agreement with individual employees in the workplace or a section or sections of the workplace. Such agreement under this clause binds the individual employee provided the agreement reached is kept by the employer as a time and wages record and provided the agreement is only with an individual employee or a number of individual employees less than the majority in the workplace or a section or sections of the workplace.’

[96] It is submitted that the phrase reading ‘Such agreement under this clause…’ should instead read ‘Such an agreement under this clause…’. 74

[97] The Report to the Full Bench indicated that this change would be made to the exposure draft 75 however it appears this change has been overlooked in the republished version of the exposure draft. The exposure draft will be updated accordingly.

Items 5 and 5A—Annual leave and deleting ‘regional’ and ‘regional daily newspaper’

[98] These items arise in respect of a Determination which varied the Graphic Arts Award (PR593788). Fairfax Media and ABI submit that a number of clauses in the exposure draft have not been updated to reflect the changes made to the corresponding clauses in the award. 76 Specifically, Fairfax submits that the word ‘regional’ should be deleted from the phrase ‘regional daily newspaper’ wherever it appears in the exposure draft. Fairfax also submits that clause 27.2 should be updated to remove the last sentence in the clause and to replace it with the following:

‘Where there is an agreement between an employer and an employee under this clause 27.2, this clause 27.2 applies instead of clause 27.4.’

[99] Consistent with the Determination we will incorporate those changes into the exposure draft. We will make the amendment to clause 27.2 sought by Fairfax, as well as removing the word regional from the following locations in the exposure draft: clauses 3.2(n), 5.6(a), 9.3, 9.4(a), 17.2(b)(i), 20.3(e)(iii) and 20.7.

Additional item—Schedule A—Classification Definitions—Level 6

[100] As a result of correspondence received by the Commission from the FWO in December 2017, our attention was drawn to a potential problem with the wording of the list of indicative tasks for Level 6 employees. Schedule B.6 of the current award (which represents Schedule A.6 of the exposure draft) includes the following in the list of indicative tasks:

‘undertaking immediate art and design to their level of training and accredited skill.’

[101] The word ‘immediate’ appears in pre-reform instruments as far back as 1995, 77 however it is suggested that this is an error, and that it should read ‘intermediate art and design’ rather than ‘immediate art and design’.

[102] This change is supported by the context. Schedule B.5 of the current award (Schedule A.5 of the exposure draft) provides that ‘undertaking basic art and design to their level of training and accredited skill’ is an indicative task of employees at Level 5. Schedule B.7 of the current award (Schedule A.7 of the exposure draft) provides that ‘undertaking complex art and design to their level of training and accredited skill’ is an indicative task of employees at Level 7.

[103] When compared to the words ‘basic’ and ‘complex’ appearing in the lists of indicative tasks for Levels 5 and 7 respectively, the term ‘immediate’ seems nonsensical, the word ‘intermediate’ appears consistent, as it would sit between ‘basic’ and ‘complex’ in terms of the level of skill required.

[104] It is clear that the inclusion of the term ‘immediate’ was an error, and that the word ‘intermediate’ was intended. As such, we will redraft the relevant indicative task in Schedule A.6 as follows:

‘undertaking intermediate art and design to their level of training and accredited skill.’

2.7 Health Professionals and Support Services Award 2010

[105] An exposure draft 78 for the Health Professionals Award was published following the June 2017 statement. Ai Group79 and ABI & NSWBC80 filed submissions in response to the June 2017 statement.

[106] Ai Group, 81 the Private Hospital Industry Employer Associations (PHIA),82 the Australian Dental Association (ADA)83 and South Australian Employers’ Chamber of Commerce and Industry (Business SA)84 also filed submissions in relation to outstanding technical and drafting issues following the October 2016 decision.

[107] The parties’ submissions were arranged by item number in a summary of status document that was published on 12 September 2018. 85 Item 3 relates to the Ai Group submission regarding the list of facilitative provisions and is dealt with above at paragraphs [8] and [9].

[108] Items A1, A2, A3 and 1 remain outstanding.

Item A1—Part-time employment

[109] Ai Group submits that the provision currently appearing at clause 6.3(a)(iii) should be deleted and replaced with a clause mirroring the terms of clause 10.3(d) of the current award. 86 The clauses relate to part-time employment.

[110] Clause 10.3(d) of the current award is in the following terms:

‘The terms of this award will apply on a pro rata basis to part-time employees on the basis that the ordinary weekly hours for full-time employees are 38.’

[111] Clause 6.3(a)(i) of the exposure draft is in the following terms:

‘(a) A part-time employee:

…

(iii) receives, on a pro-rata basis, pay and conditions equivalent to those of full-time employees who do the same kind of work.’

[112] Ai Group submits that the change represents a substantial deviation from the existing award provisions, as the clause in the exposure draft ‘purports to deal with all pay and conditions’ 87 rather than those specifically the subject of the award. Ai Group submits:

‘It is neither necessary (in the sense contemplated by s.138) nor appropriate for an award to deal with over-award terms and conditions of employment. A provision that appears to require that a part-time employee receive, on a pro rata basis, over-award terms and conditions to which a full-time employee is entitled, is not necessary to ensure a fair and relevant minimum safety net of terms and conditions. This is consistent with the Commission’s decision that penalties payable under the award are to be calculated by reference to the minimum rate prescribed by the award; the relevant provisions do not require that the penalty be calculated on a rate that includes over-award components.’ 88

[113] Furthermore, Ai Group submits that, ‘as the entitlement to pro-rata payments under the current award arise if a part-time employee has an entitlement to that amount or condition by virtue of the terms of the relevant provision that provides that term or condition’, the inclusion of the reference to full-time employees ‘who do the same kind of work’ is confusing and unnecessary. 89

[114] The redrafted provision does change the effect of the equivalent provision in the current award. However, the current provision is deficient in a number of respects. As Ai Group have pointed out in relation to a number of other instruments the statement that the “terms of this award apply on a pro-rata basis to part-time employees” is not entirely correct. Some terms such as the quantum of annual leave and personal/carer’s leave apply on a pro-rata basis but other provisions such as allowances, penalty rates and loadings may not.

[115] We refer to the Statement [2018] FWC 411 where Hatcher VP considered a clause that the Clerks—Private Sector Award 2010 applied in the same way to part-time and full-time employees. The Vice President noted that ‘on normal principles of interpretation, the award would be read as applying to everybody covered by it unless it specifically provided otherwise, and that on this basis the clause may be deleted.’ 90

[116] This issue will be determined by a separately constituted Full Bench.

Item A2—Breaks

[117] Ai Group submits that clause 9.1(a) of the exposure draft changes the equivalent provision in the current award, resulting in a substantive change. 91

[118] Clause 27.1(a) of the current award is in the following terms:

‘An employee who works in excess of five hours will be entitled to an unpaid meal break of not less than 30 minutes and not more than 60 minutes.’

[119] Clause 9.1(a) of the exposure draft reads as follows:

‘An employee who works in excess of five hours will be entitled to an unpaid meal break of between 30 minutes and 60 minutes.’

[120] Ai Group submits that the wording of clause 9.1(a), read literally, would require an employer to grant an employee an unpaid meal break of at least 31 minutes. Ai Group seeks the reinstating of the existing wording. 92

[121] We acknowledge Ai Group’s point and propose a minor amendment to address the point. We will delete the word ‘between’ from the clause and it will read as follows:

‘An employee who works in excess of five hours will be entitled to an unpaid meal break of 30 to 60 minutes.’

Item A3—Shiftwork penalties

[122] Ai Group submits that the phrase ‘their minimum hourly rate applicable to their classification and pay point’ appearing in clause 18.4 should instead read ‘the minimum hourly rate applicable to their classification and pay point’ in order to ‘make clear that provision is in fact referring to the minimum hourly rate prescribed by the award, not the minimum hourly rate payable to a specific employee, which may include over award payments.’ 93

[123] We agree and will make the proposed change.

Item 1—overtime rates

[124] Ai Group seeks to have the wording of clause 19.1 of the exposure draft, which deals with overtime payments, referred to the Full Bench specially constituted to deal with substantive issues arising out of the Health Professionals Award (AM2016/31). 94

[125] In the first exposure draft, clause 19.1 (which is now numbered clause 19.2 in the current exposure draft) was in the following terms:

‘19.1 Overtime rates

(a) An employee who works outside their ordinary hours on any day will be paid at the rate of:

(i) 150% of the minimum hourly rate for the first two hours; and

(ii) 200% of the minimum hourly rate thereafter.

(b) All overtime worked on a Sunday will be paid at the rate of 200% of the minimum hourly rate.

(c) These extra rates will be in substitution for and not cumulative upon the shift loading prescribed in clause 18.4.

(d) Part-time employees

Where agreement has been reached in accordance with clauses 6.3(b) or (c), a part-time employee who is required by the employer to work in excess of those agreed hours must be paid overtime in accordance with this clause.’

[126] A new version of clause 19 was inserted in Exposure Draft published on the 4 December 2015. 95 Following conferences with interested parties, Commissioner Roe produced a report to the Full Bench that referred to a HSU package of submissions, including a variation clause 19. 96 The proposed clause 19 stated:

‘19.1 Overtime is paid in the following circumstances:

(a) Where a full-time employee:

(i) works in excess of their ordinary hours;

(ii) works in excess of 10 hours per shift;

(b) Where a part-time employee:

(i) works in excess of their ordinary hours, except where agreement has been reached in accordance with clauses 6.3(d); and/or

(ii) works in excess of 10 hours per shift; and/or

(iii) works in excess of an average of 38 hours per week in a fortnight or four week period.

(c) Where a casual employee:

(i) works in excess of 10 hours per shift; and/or

(ii) works in excess of 38 hours per week or 76 hours in a fortnight.

(iii) where an employee is deprived of part of their break between shifts as required by clause 19.3.’

[127] In the report to the Full Bench, Commissioner Roe asked parties for submissions on clause 19 as part of the HSU package. 97 CAA98 and ABI & NSWBC99 made submissions in support of the proposed overtime clause. At a conference on 7 July 2016, the parties discussed the outstanding eight issues listed in a Notice of Listing,100 including clause 18—overtime. Vice President Hatcher stated that draft determinations were to be referred to a separately constituted Full Bench.101 The HSU submitted a draft determination in the above form.102

[128] Clause 19 of the exposure draft concerning overtime was referred to a separately constituted Full Bench, together with the other HSU proposals. 103

[129] Ai Group submits that it does not agree to this form of clause 19.1, and submits that ‘it is not clear that the provision is in fact documented as one that was agreed between the parties in Commissioner Roe’s various reports.’ 104

[130] Ai Group further submits that it represents a substantive change such as by requiring overtime payments after 10 hours of work, as opposed to after 10 ordinary hours of work as under the current award. 105

[131] Ai Group therefore submits that ‘consideration of this matter should accordingly be referred to the Full Bench constituted to deal with substantive claims to vary that award (AM2016/31).’ 106

[132] This matter was referred to a separate Full Bench for hearing and determination in [2016] FWCFB 7254. This matter was to have been dealt with by the Health awards Full Bench, but was overlooked. It does not appear that this item was an agreed item at the time the change to the exposure draft was made. The matter will be referred to the Full Bench in AM2016/31.

Item 2—overtime rates

[133] Following the publication of the Health Professionals Exposure Draft in June 2017, 107 Ai Group suggested that the words “of the minimum hourly rate” be inserted in clauses 19.2(a), (b) and (c) concerning overtime rates. In the June 2017 Exposure Draft, clause 19.2 stated:

‘19.2 An employee who works overtime shall be paid the following rates based on the minimum hourly rate for their employment classification:

(a) Monday to Saturday - 150% for the first two hours and 200% thereafter;

(b) Sunday - 200%;

(c) Public Holidays - 250%;

(d) Overtime rates under this clause will be in substitution for and not cumulative upon the penalties and loadings prescribed in clause 18 – Penalty rates and shiftwork and the casual loading in clause 6.4(e).”

[134] Subsequently, Ai Group and ABI filed submissions seeking the removal of the words ‘based on the minimum hourly rate’ from the preamble, and the insertion of the words ‘of the minimum hourly rate’ after each percentage figure. 108 Ai Group submitted that the proposal was consistent with [2015] FWCFB 4658 where the Full Bench decided ‘200% of the minimum hourly rate’109 was preferable to ‘double time.’

[135] In the November 2017 Health Professionals Exposure Draft 110, clause 19.2 had been amended in the following way:

‘19.2 An employee who works overtime shall be paid the following rates based on the minimum hourly rate for their employment classification:

(a) Monday to Saturday - 150% of the minimum hourly rate for the first two hours and 200% of the minimum hourly rate thereafter;

(b) Sunday - 200% of the minimum hourly rate;

(c) Public Holidays - 250% of the minimum hourly rate;

(d) Overtime rates under this clause will be in substitution for and not cumulative upon the penalties and loadings prescribed in clause 18 – Penalty rates and shiftwork and the casual loading in clause 6.4(e).’

[136] We agree with Ai Group’s proposal to insert reference to the minimum hourly rate. We note that the Health Professionals Award does not contain an all purposes allowance and that specifying payment of the minimum hourly rate will not impact on calculation of overtime. Further, the June 2017 Exposure Draft had already contained a reference to overtime rates based on the minimum hourly rate, and therefore is a change of style rather than substance. Consistent with our approach to this issue in other awards, 111 we are satisfied that this is an appropriate change to make.

Item 4—Summary of hourly rates

[137] A number of parties identified an error in the footnote appearing in the table contained in Schedule C.1.1. The parties correctly identified that the note reads ‘between 6.00 pm and 6.00 pm’ when it should have read ‘between 6.00 pm and 6.00 am’. 112 The exposure draft has been updated to correct this error.

2.8 Horse and Greyhound Training Award 2010

[138] A revised exposure draft 113 for the Horse and Greyhound Award was published following the June 2017 statement. Ai Group filed two submissions in relation to the Horse and Greyhound Training Award; one in response to the June 2017 statement,114 and one in response to the October 2016 decision.115 Items 1D, 1E, 1F and 2B of the summary document related to minor typographical or cross-referencing errors which have been corrected. 116 Item 1C, which relates to the classification of minimum wages, was referred to the Plain Language Full Bench (AM2016/15).117 Item 1 relates to facilitative provisions and is dealt with above at paragraphs [8] and [9].

[139] Items 1, 1A, 2 and 2A remain outstanding.

Item 1A—Part-time employment

[140] Ai Group submit that the part-time employment provision appearing at clause 6.3(a)(iii) of the exposure draft deviates substantially from those provisions appearing in the current award. Ai Group submit that clause 6.3(a)(iii) of the exposure draft should be deleted and a new provision, in the same terms as that which appears at clause 10.3 of the current award, should be inserted at clause 6.3(b) of the exposure draft. 118

[141] Clause 6.3(a)(iii) of the exposure draft is as follows:

‘(a) A part-time employee:

…

(iii) receives, on a pro-rata basis, pay and conditions equivalent to those of full-time employees who do the same kind of work.’

[142] Clause 10.3 of the current award states the following:

‘A part-time employee means an employee who works a regular pattern of hours from week to week which is less than the standard ordinary hours in any week. The terms of this award apply pro rata for part-time employees on the basis that ordinary weekly hours for full-time employees are 38.’

[143] Ai Group submit the following:

‘It is neither necessary (in the sense contemplated by s.138) nor appropriate for an award to deal with over-award terms and conditions of employment. A provision that appears to require that a part-time employee receive, on a pro rata basis, over-award terms and conditions to which a full-time employee is entitled, is not necessary to ensure a fair and relevant minimum safety net of terms and conditions. This is consistent with the Commission’s decision that penalties payable under the award are to be calculated by reference to the minimum rate prescribed by the award; the relevant provisions do not require that the penalty be calculated on a rate that includes over-award components.’ 119

[144] Similar arguments were advanced by Ai Group in relation to the Health Professionals Award which are dealt with above at paragraphs [109] – [115]. As this issue is similar to that raised in the Health Professionals Award, it will also be determined by the same separately constituted Full Bench (mentioned at [117] above).

Item 1C—Classifications and minimum wages

[145] Ai Group submit that the words ‘(full-time employee)’ should be inserted beneath the words ‘minimum weekly rate’ in the table appearing at clause 9.1 of the exposure draft. 120 Ai Group submit that clause 9.1, read literally, ‘purports to require the payment of the minimum weekly rate to all employees including part-time and casual employees.’121

[146] While Ai Group concedes that arguably clauses 6.4(b)(iii) and 6.5(e)(i) of the exposure draft ‘require only the payment of the minimum hourly rates to part-time and casual employees respectively, at the very least clause 9.1 creates a tension with those provisions.’ 122

[147] Ai Group has raised this issue in relation to a number of different exposure drafts. In respect of some of these exposure drafts the various interested parties have given their consent to this change, reflected in Reports to the Full Bench.

[148] We have decided that this issue should be resolved consistently across all awards where it arises. We have determined that it is best dealt with by the Plain Language Full Bench and the issue has been referred to that Full Bench for consideration. 123

Item 2—Definition of ‘all purpose rate’

[149] Ai Group submits that the definition of ‘all purpose rate’ appearing in the definitions schedule should be removed, as the term does not appear elsewhere in the exposure draft. 124

[150] The term ‘all-purpose rate’ is utilised at clause 6.4(e)(iii) in the context of the casual loading to clarify that the 25% loading is an all purpose loading to be used when calculating any penalties or loadings (including overtime). As the term appears elsewhere in the exposure draft it is appropriate that the definition remain.

[151] We note for completeness that overtime entitlements for casuals, including in the Horse and Greyhound Award, is being considered by a Full Bench (AM2017/51).

Item 2A—definition of ‘apprentice jockey’

[152] Ai Group submits ‘the definition of apprentice jockey is not in the same terms as that currently found in the award and this should be amended.’ 125

[153] The definition of ‘apprentice jockey’ appears in the current award at clause 3 (definitions) in the following terms:

‘apprentice jockey means a person who is employed as an apprentice jockey and is undertaking a recognised apprenticeship to acquire the skills and knowledge required to achieve a jockey licence. All employment conditions and allowances in this award apply to apprentice jockeys when they are undertaking duties described in the award. This award does not cover apprentice jockeys when they are undertaking work in accordance with a trial or race riding arrangement for which they receive payment. For example, if an apprentice jockey is engaged in race riding at a race meeting for which they receive a payment they would not be entitled to wages or allowances under the award in respect of their attendance at the race meeting and undertaking that work”

[154] In the exposure draft, the definition of ‘apprentice jockey’ appears in the following terms:

‘apprentice jockey means a person who is employed as an apprentice jockey and is undertaking a recognised apprenticeship to acquire the skills and knowledge required to achieve a jockey licence.’

[155] However, clause 3.3 of the exposure draft, appearing in the coverage clause, appears as follows:

‘This award does not cover apprentice jockeys when they are undertaking work in accordance with a trial or race riding arrangement for which they receive payment. For example, if an apprentice jockey is engaged in race riding at a race meeting for which they receive a payment they would not be entitled to wages or allowances under the award in respect of their attendance at the race meeting and undertaking that work.'

[156] The existing definition of ‘apprentice jockey’ has two effective functions. It provides a definition for the purposes of the award and it also affects coverage of the award by specifying the circumstances in which an apprentice jockey will not be covered by the award. As such, we are of the view that the existing definition is best separated out into two distinct parts. The actual definition of the term will stay in the clause containing definitions, while the section that concerns the coverage of the award will remain in the coverage clause.

2.9 Medical Practitioners Award 2010

[157] An exposure draft 126 for the Medical Practitioners Award was published following the June 2017 statement. ASMOF127 filed a submission in response to the June 2017 statement. Ai Group128 filed a submission following the October 2016 decision.

[158] Item A1 of the summary document was referred to the Plain Language Full Bench (AM2016/5). 129 Item A2 relates to the definition of all-purpose allowances and was determined by a separately constituted Full Bench.130 Item 1 related to a drafting omission which has been corrected in accordance with a Full Bench determination.131

[159] There are no other outstanding issues in relation to this award.

2.10 Nurses Award 2010

[160] An exposure draft 132 for the Nurses Award was published following the June 2017 statement. The Australian Nursing & Midwifery Federation (ANMF)133 and Ai Group134 filed submissions in response to the June 2017 statement. Ai Group,135 Aged Care Employers (ACE),136 and the ANMF137 filed submissions following the October 2016 decision. Item 1 and 7 were resolved by agreement138 while items 4A139 and 6140 have been referred to the Plain Language Full Bench (AM2016/5). The ANMF withdrew item 2 which related to classifications definitions.141 Item 3 relates to the list of facilitative provisions and is dealt with above at paragraphs [8] and [9].

[161] Items 4 and 5 remain outstanding.

Item 4—Unpaid meal breaks

[162] Ai Group submit that the redrafting of clause 9.1(a) of the exposure draft results in a substantive change. 142

[163] Clause 9.1(a) of the exposure draft reads as follows:

‘An employee who works in excess of five hours will be entitled to an unpaid meal break of between 30 minutes and 60 minutes.’

[164] The equivalent clause in the current award is clause 27.1(a) and is in the following terms:

‘An employee who works in excess of five hours will be entitled to an unpaid meal break of not less than 30 minutes and not more than 60 minutes.’

[165] Ai Group submit that the wording of clause 9.1(a), read literally, would require an employer to grant an employee an unpaid meal break of at least 31 minutes. Ai Group seeks the reinstating of the existing wording. 143

[166] Consistent with the approach we have taken with a similar provision above in relation to the Health Professionals Award, we propose the following minor amendment to rectify this point:

‘An employee who works in excess of five hours will be entitled to an unpaid meal break of 30 to 60 minutes.’

Item 5—Shift penalties

[167] Ai Group submits that the words ‘their minimum hourly rate’ appearing in clauses 14.2(a) and 14.2(b) should instead read ‘the minimum hourly rate’ in order to ‘make clear that the provision is referring to the minimum hourly rate prescribed by the award, not the minimum hourly rate payable to a specific employee, which may include over award payments.’ 144 Ai Group also raise this issue in relation to clause 16.1 and 16.2 of the exposure draft which deals with Saturday and Sunday work.

[168] The ANMF opposes Ai Group’s submission, and submit that the change should not be made. 145 The ANMF submit that the wording should be amended to reflect that which has been agreed to by the parties in other parts of the exposure draft (for example ‘minimum hourly rate applicable to their classification and pay point’).146 The ANMF submit the issue ‘was discussed at length by the parties and the wording was agreed in relation to several clauses,’ and that this was contained in the Report to the Full Bench by Commissioner Roe.147 The ANMF submission goes onto explain the outcome reflected a conference that was held by Commissioner Roe on 8 October 2015.148 The ANMF submit that clauses 14.2 and 16 were inadvertently overlooked in that conference and the relevant clauses raise exactly the same issue as those that were agreed in the conference.149

[169] We agree with the submission of the ANMF. In other exposure drafts published as part of the Review, the wording has tended to be ‘of the minimum hourly rate’ rather than of ‘their minimum hourly rate’, however the circumstance in the Nurses award differs. The parties have agreed to insert different wording in other clauses of the Nurses Exposure Draft as a result of lengthy discussions, and we agree with the ANMF that it appears it was an oversight to exclude clauses 14.2 and 16 as part of the parties agreed outcome. Accepting the change sought by Ai Group would lead to inconsistency within the terms of the Nurses exposure draft.

[170] The relevant clauses (14.2(a), 14.2(b), 16.1 and 16.2) will read ‘of their minimum hourly rate’, rather than of ‘the minimum hourly rate.’

Item 7—Rest period after overtime

[171] In a submission filed in 2015, ACE submit that the exposure draft clause 15.3(b) should be amended ‘to clarify that loss of pay is limited to rostered ordinary hours occurring during an overtime rest period.’

[172] The relevant clause in the Nurses Award currently states:

28.3 Rest period after overtime

(b) An employee, other than a casual employee, who works so much overtime between the termination of their ordinary work on one day and the commencement of their ordinary work on the next day, that they have not had at least 10 consecutive hours off duty between those times, will be released after completion of such overtime, until they have had 10 consecutive hours off duty without loss of pay for ordinary working time occurring during such absence.

[173] Clause 15.3(b) of the exposure draft was drafted in the following terms:

‘(b) An employee working overtime, other than a casual employee, is entitled to 10 consecutive hours off duty between the termination of work on one day and the commencement of work on the next day, without loss of pay for ordinary hours.’

[174] ACE submit that the clause should read:

‘An employee working overtime, other than a casual employee, is entitled to 10 consecutive hours off duty between the termination of work on one day and the commencement of work on the next day, without loss of pay for rostered ordinary hours during the absence.’

[175] The ANMF submit that the final words of proposed clause 15.3(b) should read: “without loss of pay for ordinary working time occurring during such absence.” The ANMF submit that “[t]his wording reflects the final words of the existing clause 28.3(b).” 150 Ai Group has identified no problem with the ACE proposal.151

[176] Throughout the conference process before Commissioner Roe, the parties arrived at a consent position, which appears to have made their submissions above irrelevant. The parties agree that the existing wording of the clause should be retained. The Report to the Full Bench highlights this position. It notes:

‘[47] ITEM 54 Agreed. Amend 15.3(b) and (c) by using the current award clause 28.3 (however the minimum hourly rate term should be used consistent with full bench decision).’ 152

[177] We are satisfied that this is an appropriate course of action and will give effect to the parties’ consent position. The exposure draft will be updated accordingly. We note that the term ‘double time’ appearing in the clause will be replaced with the term ‘200%’.

2.11 Passenger Vehicle Transportation Award 2010

[178] The exposure draft for the Passenger Vehicle Transportation Award 2010 (Passenger Vehicle Award) and a summary of submissions regarding outstanding issues for the exposure draft was published with the June 2017 statement. One item in relation to the casual employment clause was identified as outstanding. The item was referred to the casual employment Full Bench (AM2014/197) and has been determined.

[179] There are no outstanding issues in relation to this award.

2.12 Racing Industry Ground Maintenance Award 2010

[180] An exposure draft 153 for the Racing Industry Award was republished following the June 2017 statement. Ai Group filed a submission in response to the June 2017 statement154 and also filed a submission following the October 2016 decision.155 The submissions were arranged by item number in a summary of status document.156 Item A2 was referred to the Plain Language Full Bench (AM2016/15). Item A1 relates to the list of facilitative provisions and is dealt with above at paragraphs [8] and [9].

[181] Item 1 remains outstanding.

Item 1—Rates – Casual employees

[182] Item 1 relates to the expression of employee rates in schedule B.3–Casual employees.

[183] Ai Group submits that schedule B.3, as it currently stands, implies that “all casual employees are entitled to the rates there set out”. 157 Ai Group notes that per clause 6.5–Casual employment, morning work, evening work, Saturday, Sunday and public holiday rates and overtime rates do not apply to a casual employee engaged on night cleaning duties.

[184] Ai Group proposes inserting a footnote to show which rates apply to which casual employees under the Award. 158 However, they do not propose any drafting. There were no submissions in reply to this item.

[185] The latest exposure draft of this award (13 June 2017) incorporates a footnote next to the term ‘night cleaning’ in the table appearing at schedule B.3.1 Casual employees–ordinary hours and penalty rates that references clause 6.5 in the following terms:

‘Night cleaning means night cleaning duties (see clause 6.5(c))’

[186] Clause 6.5(c) is reproduced below.

‘6.5 Casual employment

(c) A casual employee engaged on night cleaning duties must be paid, in addition to the casual loading of 25%, a shift allowance of 30% of the ordinary hourly rate for each hour work worked. The following provisions do not apply to casual employees on night cleaning duties:

•  clause 8—Ordinary hours of work and rostering;

•  clause 13—Penalties; and

•  clause 14—Overtime.

[187] B.3.2 Casual employees–weekend and public holiday penalties and B.3.3 Casual employees–overtime do not contain such a footnote.

[188] We agree that schedule B should be clarified to make it clear that the penalty rates and casual loading in schedules B.3.2 and B.3.3 do not apply to those casual employees engaged in night cleaning duties per clause 6.5(c).

[189] In the absence of submissions from the parties, we have decided to amend the schedule in the following manner: the ‘Night cleaning’ column in B.3.1 will be removed and a separate table “Schedule B.4 Casuals engaged in night cleaning duties” will be inserted into Schedule B.

[190] We note that the Alpine Resorts Award, like the Racing Industry Ground Maintenance Award, has two casual employee rates, one which attracts penalty and overtime rates, and one which does not. Under the Alpine Resorts Award, casual employees are entitled to a public holiday and penalty rates per schedule C.1. Casual snow sports instructors, however, are paid a higher hourly rate, and are not entitled to penalty rates, their rates are set out in schedule C.2 of the Award.

[191] Interested parties will have an opportunity to comment on the accuracy of the separate table inserted into Schedule B when the exposure draft is republished.

2.13 Road Transport (Long Distance Operations) Award 2010

[192] A revised exposure draft 159 for the Road Transport (Long Distance Operations) Award 2010 (the Long Distance Award) was republished on 13 June 2017 following the June 2017 Statement. Submissions were received from the NRTA,160 ABI & NSWBC161and Ai Group.162 The NRTA,163 ARTIO,164 Ai Group165 and Business SA166 also filed submissions following the October 2016 decision. In the summary of status document items A1, A2, A5, 1, 2A, 3A, 4, 4A, 4B, 4C, 4D, 5, 6, 7, 8, 9 and 10 were either confirmed as resolved by agreement, no longer pressed, determined by a previous Full Bench decision or related to minor typographical or cross-referencing errors which have been corrected. 167 Item A3 has been referred to the plain language Full Bench (AM2016/15) for determination. Item A4 relates to the list of facilitative provisions and is dealt with above at paragraphs [8] and [9].

[193] Items 1A, 2 and 3 remain outstanding.

Item 1A—Classifications

[194] Clause 7 of the further amended exposure draft contains a redrafted classification structure, so as to align classifications contained in the Long Distance Award with those contained in the Road Transport and Distribution Award 2010 (the Road Transport Award).

[195] Grades 1 and 2 have been removed from the table of classifications in the further amended exposure draft as those grades only have application in the Road Transport Award. Therefore, the first classification grade which an employee can be classified under in exposure draft is Grade 3.

[196] Clause 7 of the further amended exposure draft provides as follows:

‘7. Classifications

Employees are to be classified in accordance with the following grades:

Grade	Description
1 and 2	N/A
3	Driver of two axle rigid vehicle up to 13.9 tonnes GVM. Capacity up to eight tonnes.
4	Driver of three axle rigid vehicle over 13.9 tonnes GVM. Capacity over eight and up to 12 tonnes.
5	Driver of four axle rigid vehicle over 13.9 tonnes GVM. Driver of rigid vehicle and heavy trailer combination with GCM of 22.4 tonnes or less. Driver of articulated vehicle with GCM of 22.4 tonnes or less. Capacity over 12 tonnes.
6	Driver of rigid vehicle and heavy trailer combination with GCM over 22.4 tonnes but not more than 42.5 tonnes. Driver of articulated vehicle with GCM over 22.4 tonnes. Driver of low loader (as defined) with GCM of 43 tonnes or less. Capacity up to 24 tonnes.
7	Driver of rigid vehicle and heavy trailer combination with GCM over 42.5 tonnes but not more than 53.4 tonnes. Driver of double articulated vehicle with GCM 53.4 tonnes or less (includes B-doubles). Driver of low loader (as defined) with GCM over 43 tonnes.
8	Driver of rigid vehicle and trailer(s) or double articulated vehicle with GCM over 53.4 tonnes (includes B-doubles). Multi-axle trailing equipment up to 70 tonnes capacity.
9	Driver of road train or triple articulated vehicle exceeding 94 tonnes GCM.
10	Multi-axle trailing equipment.

[197] NRTA proposed inserting a note at the end of the table in clause 7 to indicate the linkage between the classification structure in the Long Distance Award and the classification structure contained in the Road Transport Award. 168 NRTA referred to previous submissions169 in which an identical proposal was advanced.

[198] In making its submission, NRTA noted that in the previous exposure draft, 170 the description for grades 1 and 2 were replaced with the abbreviation ‘N/A’. Given that the abbreviation has been deleted, NRTA submitted that a note would assist those unfamiliar with the connection between the grades in the Long Distance Award and the Road Transport Award.171

[199] Ai Group submitted that there is merit in aligning the classification structures of the Long Distance Award and the Road Transport Award given that some employers utilise both instruments and submitted that in accordance with s.134(1)(g) of the Act, this approach goes toward a simple and easy to understand modern award system. 172 The Ai Group noted however, that this approach results in an anomalous outcome in that the new classification structure in the Long Distance Award does not commence until grade 3.173

[200] Ai Group submitted that it was proposed at conference that a reference to grades 1 and 2 be included in the new classification structure with a note indicating that they were “not applicable” to avoid interested persons being confused as to why the classification structure begins at grade 3. 174 Ai Group noted that this reference has been deleted from the exposure draft, and submitted they are content for the Full Bench to decide whether the references to grades 1 and 2 should be retained considering this background.175

[201] In our view it would assist in the understanding of the award if grades 1 and 2 were retained in the classification table and include N/A in the description column to explain that these grades are not applicable to this award.

[202] We also agree that a note at the conclusion of clause 7, to clarify that the Long Distance Award and the Road Transport Award share a common employee classification structure, would be helpful. The following note will be inserted into the exposure draft at the conclusion of clause 7:

‘NOTE: Grade levels in this award align with equivalent grade levels in the Road Transport and Distribution Award 2015. Grades 1 and 2 are not applicable to this award.’

Item 2—Minimum wages—Schedule A

[203] ARTIO submits that the minimum weekly rates of pay set out in the table at clause 11.1 do not reflect the current rates for the respective classifications. 176

[204] ARTIO submits that this issue also arises in relation to Schedule A to the further amended exposure draft, 177 and submits that the ‘standard rate’ contained in the definitions section of the further amended exposure draft may also be incorrect.178

[205] The NRTA submits that (in their calculation) the rates contained in the further amended exposure draft are correct up to 30 June 2017. 179

[206] We have reviewed the rates set out in clause 11.1 of the further amended exposure draft published by the Commission on 13 June 2017. It would appear that when aligning the classification grades between the two awards an administrative error resulted in the minimum weekly rate of pay for Grade 1 in the Road Transport Award being incorrectly aligned with Grade 3 of the Long Distance Award. This does not reflect the intention of the parties when seeking to align the classifications of both awards.

[207] The following table sets out the current weekly rates of pay contained in the Road Transport and the Long Distance Award.

Road Transport and Distribution Award 2010		Road Transport (Long Distance Operations) Award 2010
Transport worker grade	Minimum weekly rate $	Grade	Minimum weekly rate $
1	761.70
2	780.90
3	790.50	1	790.50
4	805.00	2	805.00
5	815.10	3	815.10
6	824.50	4	824.50
7	836.50	5	836.50
8	860.80	6	860.80
9	875.20	7	875.20
10	896.90	8	896.90

[208] We will correct the administrative error in the next version of the exposure draft for the Long Distance Award so that the table of minimum weekly rates of pay reads as follows (when compared to the current award classification structures). The wages in the tables are the current wages rates following the 2017-18 Annual Wage Review Decision:

Road Transport and Distribution Award 2010		Road Transport (Long Distance Operations) Award 2010		Road Transport (Long Distance Operations) Exposure Draft
Transport worker grade	Minimum weekly rate $	Grade	Minimum weekly rate $	Grade	Minimum weekly rate $
1	761.70
2	780.90
3	790.50	1	790.50	3	790.50
4	805.00	2	805.00	4	805.00
5	815.10	3	815.10	5	815.10
6	824.50	4	824.50	6	824.50
7	836.50	5	836.50	7	836.50
8	860.80	6	860.80	8	860.80
9	875.20	7	875.20	9	875.20
10	896.90	8	896.90	10	896.90

[209] Any required amendments to Schedule A will be also be made.

[210] With regard to the submission that the standard rate definition is incorrect, we note the further amended exposure draft contains an agreed change to the definition of “standard rate” in Schedule F so that the definition now reads “minimum weekly rate prescribed for Grade 6 in clause 11.1”. This is the correct reference. Any outstanding consequential amendments required to correct the exposure draft’s reference to the “standard rate” throughout the document will be made accordingly.

Item 3—Guaranteed minimum payment - New Provision

[211] In a report to the Full Bench 180the Commission recorded the parties’ agreement to add the following sentence to clause 11.2(a):

‘The fortnightly payment must be calculated by reference to continuous consecutive fortnightly periods.’

[212] NRTA submits that the sentence should be deleted on the basis that the reference to a fortnightly ‘period’ confounds rather than clarifies the calculation of fortnightly payments. 181 They submit that the sentence is unnecessary because fortnightly periods can be calculated by doubling the prescribed weekly rate.

[213] Ai Group claims that NRTA unintentionally misstates the proposed variation. 182 They submit that NRTA’s concern will be addressed if the following wording were adopted:

‘The fortnightly payment must be calculated by reference to consecutive fortnightly periods.’

[214] Ai Group notes that the wording contained in the exposure draft was generally agreed by the parties during the conferencing process. It submits that there appears to be no substantive difference between the current and the alternate variation to the clause. In a further submission, NRTA agreed that Ai Group’s proposed wording provided greater clarity. 183

[215] We note the wording contained in the further amended exposure draft was inserted by agreement between the parties who attended conferences before Senior Deputy President Hamberger. However, we agree that the wording proposed by Ai Group is clearer and will be adopted at clause 11.2(a).

Item 4B—Articles of clothing allowance

[216] NRTA previously submitted that the deletion of two provisions in clause 12.3(b) of the exposure draft necessitates the qualification of clause 12.3(b)(iii). 184 The revised exposure draft published on 13 June 2017 highlighted a proposed change to clause 12.3(b)(iii) to clarify the issue. Clause 12.3(b) of the revised exposure draft is extracted below:

‘(b) Articles of clothing

(i) Where the employer requires an employee to wear any special clothing such as any special uniform, cap, overall or other article, the employer must reimburse the employee for the cost of purchasing such special clothing unless the special clothing is provided by the employer.

(ii) Where an employee is required by the employer to work continuously in conditions in which, because of their nature, the clothing would otherwise become saturated, the employer must reimburse the employee for the cost of purchasing protective clothing unless the protective clothing is provided by the employer.

(iii) Clauses 12.3(b)(i) and (ii) do not apply Clause 12.3(b) does not apply to employees required to check things such as vehicles, oil, water and tyres.

(iv) Protective clothing remains the property of the employer and the employee is liable for the cost of replacing any article of protective clothing which is lost, destroyed or damaged through their own negligence.’

[217] The equivalent provision in the current award is clause 14.2(b) and is extracted below:

‘(b) Articles of clothing

(i) Where the employer requires an employee to wear any special clothing such as any special uniform, cap, overall or other article, the employer must reimburse the employee for the cost of purchasing such special clothing. The provisions of this clause do not apply where the special clothing is provided by the employer.

(ii) Where an employee is required by the employer to work continuously in conditions in which, because of their nature, the clothing would otherwise become saturated, the employer must reimburse the employee for the cost of purchasing protective clothing. The provisions of this clause do not apply where the protective clothing is provided by the employer.

(iii) Provided that this subclause must not apply to employees who are required as an adjunct to their normal duties to check such things as vehicles, oil, water and tyres.

(iv) Provided further that such protective clothing must remain the property of the employer, and that the employee must be liable for the cost of replacement of any article of protective clothing which is lost, destroyed or damaged through the negligence of the employee.’ (Emphasis added)

[218] The amendment outlined at clause 12.3(b)(iii) in the revised version of the exposure draft appears to resolve the issue that the NRTA highlighted in their submission. However, it appears to us that the rationale for clause 12.3(b)(iii) in the exposure draft (and clause 14.2(b)(iii) in the current award) is unclear. In short, if an employee is required to check vehicles, oil, water and tyres, then why are they not entitled to be reimbursed for the cost of purchasing protective clothing, or entitled to be provided with the required clothing?

[219] It is our provisional view that clause 12.3(b)(iii) be deleted from the exposure draft in its entirety. Interested parties are asked to provide a written submission relating to our provisional view by no later than 4.00 pm on Wednesday 10 October 2018.

2.14 Road Transport and Distribution Award 2010

[220] An exposure draft 185 for the Road Transport Award Industry Award was published following the June 2017 statement. Ai Group186 and NRTA187 filed submissions in response to the June 2017 statement. ARTIO,188 Ai Group189 and NRTA190 filed submissions following the October 2016 decision. Items 1A, 1D, 1G, 1H, and 5A were either confirmed as being resolved by agreement; determined by a previous Full Bench decision; or related to minor typographical or cross-referencing errors which have been corrected. 191

[221] Item 1C, which relates to the classification of minimum wages, and 1F, which concerns inconsistent rates of pay, were referred to the Plain Language Full Bench (AM2016/15). 192 Items 2 and 3, concerning hourly rates of pay for oil distribution workers, were referred to the Full Bench dealing with substantive issues in the road transport awards (AM2016/32). Item 5, concerning the placement of definitions within the award, will be determined by the plain language Full Bench.193

[222] Items A1 1, 1B, 1E, and 4 remain outstanding.

Item A1 – Facilitation by individual agreement

[223] Ai Group submits clause 5.2(a), which provides a list of facilitative provisions in the Road Transport Award, should refer to clause 8.4 of Part 3–Hours of Work and that the reference to 8.6(a) should be deleted from 5.2(a)(i) because it is not a facilitative provision. 194 Further, the reference to 8.6(b)–Hours of work–spread of hours in clause 5.2(a)(i) should be deleted because it is a duplicate of 5.2(a)(ii). Ai Group also submits that the reference to clause 18.5–Agreement to take annual leave in advance should be deleted because it is not a facilitative provision.

[224] There were no submissions in reply to this item.

[225] We agree that clause 5.2(a) should refer to clause 8.4 of Part 3—Hours of Work because it is a facilitative provision. We also agree that the reference to clause 8.6(a) should be deleted from 5.2(a) because spread of hours is not a facilitative provision and that the reference to clause 8.6(b) should be deleted from 5.2(a)(i) because it is a duplicate of 5.2(a)(ii).

[226] Consistent with the previous Full Bench decision on this point, we disagree with Ai Group’s submission that clause 18.5—Agreement to take annual leave be removed because it is a facilitative provision, and appears in a number of other exposure drafts in the list of facilitative provisions. 195

[227] We therefore propose to amend clause 5.2(a) as follows:

‘5.2 Facilitation by individual agreement

(a) The following facilitative provisions can be utilised upon agreement between an employer and an employee:

(i) clause 8.4–Hours of work–ordinary hours 8.6(a) and 8.6(b)—Hours of work—ordinary hours, days of the week;

(ii) clause 8.6(b)—Hours of work—spread of hours;

(iii) clause 8.7—Hours of work—normal rostered day off;

(iv) clause 9.6(a)—Hours of work—rostered days off;

(v) clause 15.7(a)—Shiftwork—transfer to or from shiftwork;

(vi) clause 17.5—Time off instead of payment for overtime

(vii) clause 18.5—Agreement to take annual leave in advance; and

(viii) clause 18.10—Agreement to cash out annual leave.’

Item 1—Casual loading

[228] The Australian Road Transport Industrial Organisation (ARTIO) submits that casual loading of 25% in clause 6.5(c)–Casual loading is “in addition” to any other penalty payment, and should be calculated as a dollar allowance then added to the penalty payment 196. The NRTA submits that the issue is not outstanding as it has not been pursued, therefore the current provisions of the Award should continue.197 There were no further submissions in reply from interested parties on this item.

[229] In the July 2015 Decision, the Full Bench observed that the term ‘ordinary hourly rate’ is used in contrast to ‘minimum hourly rate’ in affected awards to make clear that all purpose allowances must be added to the minimum rate of pay before calculating any penalty rate. In affected awards, penalties and loadings are expressed as a percentage of the ordinary hourly rate (for example, ‘overtime is paid at 150% of the ordinary hourly rate’), to make clear that an all purpose allowance to which an employee is entitled must be added to the minimum rate before calculating the loaded rate. That is, there is a compounding effect. 198

[230] The RTD Award is an affected award as penalties and loadings are expressed as a percentage of the ordinary hourly rate. For example:

‘17. Overtime

17.1 For all work done outside ordinary hours the rate of pay will be 150% of the ordinary hourly rate for the first two hours and 200% of the ordinary hourly rate after two hours.’

[231] In the July 2015 decision the Full Bench expressed the view that it is desirable that there be a consistent rule for the calculation of casual loading which should apply across all awards. The Bench’s provisional view was that the casual loading would be calculated as 25% of the minimum rate (not the ordinary hourly rate), with any all purpose allowance being added after that. 199

[232] This issue was revisited in the September 2015 decision, following further submissions from interested parties. The Full Bench then concluded that:

•  for a number of awards containing allowances that are all purpose in nature or stated to form part of the ordinary hourly rate, adoption of the provisional view would result in a reduction in hourly rates of pay for casual employees; 200

•  the provisional view was inconsistent with the general approach of the AIRC Full Bench Award Modernisation Decision of 19 December 2008 201 that the casual loading should be applied to the ordinary rate rather than the minimum rate;202 and

•  adoption of the provisional view was not justified where there was no evidence of practical difficulty in the operation of current award provisions which are consistent with the Award Modernisation Decision. 203

[233] The Full Bench determined that the general approach to casual loading will remain as in the exposure drafts, with casual loading expressed as 25% of the ordinary hourly rate in the case of awards which contain any all purpose allowances, and as 25% of the minimum hourly rate in awards which do not contain any such allowances. 204

[234] The RTD Award contains an all purpose allowance. 13.3(a) states that Special vehicle allowances (clause 13.3(b)) is an allowance “paid for all purposes under this award”.

[235] The Full Bench noted the concern underlying the provisional view as to whether it was appropriate for certain allowances currently expressed as all purpose to be paid at an increased level for casual employees by application of the casual loading. The preferable approach to this issue was to permit reconsideration, on an award-by-award basis during the course of the 4 yearly review, as to whether any existing allowance should retain its ‘all purpose’ designation or should be payable on some different basis. 205

[236] Parties will be invited to confirm if casual loading is in addition to the “minimum hourly rate” or “ordinary hourly rate” under this Award. The “ordinary hourly rate” is the minimum hourly rate plus any applicable all purpose allowances.

Item 1B—Meal and rest breaks

[237] The ARTIO submits that the word ‘continuous’ should be inserted in clause 11.2(e) to ensure consistency with clause 13.5(f)(i). 206 The current exposure draft indicates that the parties have agreed to the change (red and underlined), however there were no further submissions in relation to this item.

[238] We accept the ARTIO’s submission and will amend the Road Transport Award exposure draft as follows:

‘11.2 Meal and rest breaks after ordinary hours and before overtime hours

…

(e) An employee required to work overtime for two or more continuous hours will be entitled to a meal allowance in accordance with clause 13.5(f)(i).’

Item 1E—Allowances

[239] Ai Group submits that clause 13.2–Allowances provides that the allowances at clauses 13.3(c)-(g) are payable to full-time, part-time and casual employees. However, only ‘weekly employees’ are entitled to the allowance in clause13.3(g)(ii). 207 Therefore, Ai Group submits that clause 13.2 should be amended to reflect this and the ‘easiest way to achieve this may be to simply replace the reference to (g) in clause 13.2 with a reference to (g)(ii)’208. No submissions in reply were received on this item.

[240] We accept the Ai Group’s submission and will amend the Road Transport Award exposure draft as follows:

‘13.2 The allowances at clauses 13.3(c) to (f)(ii), 13.3(g) and 13.5(a) are payable to full-time, part time and casual employees. In the case of part-time and casual employees, they will be calculated as follows:

Item 4—Allowance schedule – CPI category of travelling allowance

[241] Parties were asked to consider whether the CPI groups contained in schedule D.2.1 Adjustment of expense related allowances should be changed and whether the following CPI groups would be more relevant to these allowances 209:

Allowance	Applicable Consumer Price Index figure
Travelling allowance	Domestic holiday travel and accommodation subgroup
Housing	Rents subgroup

[242] The NRTA submits that the allowance adjustment category contained in D.2.1 should not be changed. The NRTA submits ‘that following the making of the Full Bench Statement in [2009] AIRCFB 980 relating to residual variations to modern awards, PR 994481 dated 16 March 2010 was issued’ 210. Paragraph 14 of that Order inserted the relevant current subgroups for assessing changes in the value of three expense related allowances at the current CPI subgroup in schedule D.2.1, and should not be changed.211 The award should continue with its current substantive terms.212

[243] No other submissions were made in reply to the invitation to consider D.2.1.

[244] We accept the NRTA’s submission. The CPI groups in schedule D.2.1 Adjustment of expense related allowances will not be amended.

Alleged NES inconsistency – work on a public holiday

[245] The TWU filed a submission on 31 August 2018 213 in relation to clause 28.2(b) of the current Road Transport and Distribution Award which deals with work on public holidays. The clause is set out as follows:

28.2 Work on public holidays

(b) An employee who, without the consent of their employer or without reasonable cause, is absent from work on the day before or the day after a public holiday is not entitled to any payment for such public holiday.

[246] The relevant clause in the exposure draft was removed as part of the conference process during the award stage of the Review. 214

[247] The TWU submit that clause 28.2(b) of the current award should be removed as it is inconsistent with the NES. The TWU submit that the December 2014 decision 215 held that two identical clauses in the Contract Call Centres Award and the Waste Management Award were inconsistent with the NES and were removed.

[248] The December 2014 decision states the following:

‘Inconsistency with ss.114(1) and 116 – payment for absence on public holiday

[106] Under ss.114(1) and 116, an employee other than a casual employee is entitled to be absent from work on a public holiday and to receive his or her base rate of pay for ordinary hours falling on the public holiday.

[107] The following modern award provisions are inconsistent with these provisions of the NES because they impose the identified impermissible conditions on the public holiday entitlement:

(1) Contract Call Centres Award 2010, clause 30.5: removes the entitlement to payment for a public holiday where the employee is absent on the working day before or after the public holiday without reasonable excuse or the employer’s consent.

(2) Waste Management Award 2010, clause 32.2: removes the entitlement to payment for a public holiday where the employee is absent from work on the day before or after the public holiday.’

[249] We agree with the submission of the TWU. Clause 28.2(b) of the Award is in the same terms as the other two awards dealt with in the December 2014 decision and are clearly inconsistent with s.114(1) and 116 of the Act. We will adopt the reasoning of the December 2014 decision and remove clause 28.2(b) from the current award. A determination will be issued shortly.

2.15 Seafood Processing Award 2010

[250] An exposure draft 216 for the Seafood Processing Award was published following the June 2017 statement. ABI & NSWBC217 and Ai Group218 filed submissions in response to the June 2017 statement. Ai Group219 and the AMWU220 also filed submissions following the October 2016 decision. Items A1, A2, A4 and 1B are typographical errors and are confirmed in the summary document as resolved. 221 The exposure draft will be updated to correct these errors.

[251] Items 1A, 3, 4 and 7 have been referred to the Plain Language Full Bench (AM2016/15) for determination. Item A3 relates to the list of facilitative provisions and is dealt with at paragraphs [8] and [9] of this decision.

[252] Items 1, 2, 5 and 6 remain outstanding.

Items 1 and 2 – altering the span of hours

[253] Items 1 and 2 are issues that were initially raised by the AMWU which sought clarification about clauses 8.2(c) and 13.4 of the exposure draft and altering the span of hours. The issues were canvassed in the October 2016 decision where we observed that the word ‘either’ used in clauses 8.2(c) and 13.4 is ambiguous. 222

[254] This issue arises in a number of other exposure drafts and this matter will be given final consideration at the conclusion of the award stage. A Statement regarding this issue will be published shortly.

Item 5 and 6 – references to ‘minimum hourly rate’

[255] Ai Group submit that, consistent with the Commission’s earlier decision, 223 the words “of the minimum hourly rate” should be inserted after the rates appearing in clauses 14.1(a)(i)-(iii) and 14.4 which consider payment for overtime.

[256] We agree with Ai Group. The exclusion of these words in the exposure draft appears to be a drafting error. The words ‘of the minimum hourly rate’ will be inserted after the rates appearing in clauses 14.1(a)(i)-(iii) and 14.4 of the exposure draft.

[257] There are no other outstanding items relating to this award.

2.16 Storage Services and Wholesale Award 2010

[258] An exposure draft 224 for the Storage Services Award was published following the June 2017 statement. Ai Group225 and ABI & NSWBC226 filed submissions in response to the June 2017 statement. Business SA,227 Ai Group228 and SDA229 filed submissions following the October 2016 decision. In the summary of status document items A1, A2, 1, 2, 2A, 2B, 3 and 5 were either confirmed as resolved by agreement, determined by a previous Full Bench decision or related to minor typographical or cross-referencing errors which have been corrected. 230 Item 1A relates to the list of facilitative provisions and is dealt with above at paragraphs [8] and [9].

[259] Item 6 has been referred to the Plain Language Full Bench (AM2016/15) for determination.

[260] Item 4 remains outstanding.

Item 4—Summary of monetary allowances

[261] The SDA submits that the dollar figures for the first aid and the cold temperature allowances in the exposure draft are incorrect. It appears the SDA’s calculation for these allowances were incorrectly based on the 2015 standard rate (being $768.90), instead of the applicable 2016 standard rate (being $787.40). In any case, the 2018 standard rate is now $841.90. The exposure draft will be updated to reflect the increase in the standard rate.

2.17 Transport (Cash in Transit) Award 2010

[262] An exposure draft 231 for the the Cash in Transit Award was published following the June 2017 Statement. Ai Group232 filed a submission in response to the June 2017 Statement and also filed a submission following the October 2016 decision. 233 In the summary of status document item A1 has been referred to the Plain Language Full Bench (AM2016/15) for determination. Item 1 has been determined by a previous Full Bench decision and item 1A is resolved by agreement. 234 Item 4 relates to the list of facilitative provisions and is dealt with above at paragraphs [8] and [9].

[263] Items 2 and 3 remain outstanding.

Item 2—ordinary rate of pay

[264] Ai Group submit that the phrase ‘% of ordinary rate of pay’ should be replaced with the words ‘% of ordinary hourly rate’ in the table subheading in Schedule A.2.1.  235

[265] We agree with the submission of Ai Group. This is in line with previous Full Bench decisions on this point. The exposure draft will be updated accordingly.

Item 3—Definitions – ordinary hourly rate

[266] Ai Group propose that the phrase ‘specified in clause 11.1’ in the definition of ‘ordinary hourly rate’ in Schedule F be replaced with ‘prescribed by this award’ on the basis that the minimum rates of pay prescribed by clause 11.1 are payable to some but not all employees covered by the award.  236 Ai Group note, for example, that an employee undertaking a traineeship or an employee to whom the supported wage system applies may be entitled to a lower minimum rate of pay. Ai Group contends that in such circumstances, the employee’s ‘ordinary hourly rate’ must be calculated by reference to those rates of pay, in lieu of the rates prescribed by clause 11.1.

[267] We accept Ai Group’s proposal to replace the words ‘specified in clause 11.1’ with ‘prescribed by this award’ as it will correct the issue identified. We deal with this issue again in relation to the Waste Management Award below at paragraphs [275] – [279].

2.18 Waste Management Award 2010

[268] An exposure draft 237 for the Waste Management Award was republished following the June 2017 Statement. Ai Group238 and the AMWU239 filed submissions in response to the June 2017 Statement. Both parties also filed submissions following the October 2016 decision. 240 In the summary of status document241 item A3 was noted as being determined by a previous Full Bench decision and Item 5 relates to minor typographical errors that will be corrected in the exposure draft. Items A2, 1, 2 and 6 have been referred to the plain language Full Bench (AM2016/15) for determination. Item A1 relates to the list of facilitative provisions and is dealt with above at paragraphs [8] and [9] of this decision.

[269] Items 3 and 4 remain outstanding.

Item 3—Work on public holidays

[270] Ai Group submits that clause 21.5 (previously clause 20.5) of the exposure draft does not reflect the parties agreed position. The clause that was inserted into the Waste Management Exposure Draft was intended for the RTD Exposure Draft. 242

[271] In submissions dated 9 December 2016, 243 Ai Group included two annexures. The first, Annexure A, was an email dated 2 February 2016 which included a draft clause intended to replace clause 16.2 of the RTD Award exposure draft. The second, Annexure B was an email also dated 2 February 2016. This email contained a draft clause intended to replace 20.5 (now clause 21.5) of the Waste Management Award Exposure Draft.

[272] Ai Group submit there are substantive differences between the proposed clauses and that the clause that currently appears at 21.5 of the Waste Management Exposure Draft should be replaced with the provision set out at Annexure B of the 9 December 2016 submission.

[273] The proposed provision outlined at Annexure B of Ai Group’s 9 December 2016 submission that is to be inserted into the Waste Management Exposure Draft at clause 21.5 is as follows:

21.5 Payment for work on public holidays

(a) All time worked by a weekly employee on a public holiday must be paid at the following rates, with a minimum payment of four hours:

	% of the ordinary hourly rate
Good Friday and Christmas Day	200%
Any other public holiday	150%

(b) Payment for work on public holiday is in addition to any amount payable in respect of the weekly wage.

(c) Despite clause 21.5(a) an employee required to work on a public holiday during hours which, if the day were not a public holiday, would be outside the range of ordinary working time as mentioned in clause 16, will be paid for such hours at the following rates:

	% of the ordinary hourly rate
Good Friday and Christmas Day	300%
Any other public holiday	250%

(d) Where Christmas Day falls on a Saturday or Sunday and another day is observed as a public holiday in accordance with ss. 114-116 of the Act, a full-time employee who is regularly rostered to work ordinary hours on a Saturday or Sunday will be paid:

(i) a loading of 50% of the ordinary hourly rate; and

(ii) the Saturday/Sunday rate for all ordinary hours worked on 25 December with a minimum of four hours pay.

(e) An employee referred to in clause 21.5(d) will also be entitled to the substituted public holiday.

(f) Where an employee is entitled to a public holiday but the employer requires the employee to work, the employer must notify the employee on the preceding working day. Otherwise the employee is entitled to be

absent on the public holiday without deduction of pay.

(g) All time worked by a casual employee on a public holiday must be paid at the following rates, with a minimum payment of four hours:

	% of the ordinary hourly rate
Good Friday and Christmas Day	325%
Any other public holiday	275%

[274] The provision set out at clause 21.5 of the Waste Management Exposure Draft has been inserted in error. We will insert the correct provision set out at paragraph [273] above.

Item 4—Definitions – ordinary hourly rate

[275] Ai Group proposes amending the definition of ‘ordinary hourly rate’ by replacing the words ‘specified in clause 10.1’ with ‘prescribed by this award’.

[276] The definition of ‘ordinary hourly rate’ set out in Schedule F of the exposure draft reads as follows:

‘ordinary hourly rate means the hourly rate for an employee’s classification specified in clause 10.1, inclusive of the industry allowance’

[277] Ai Group submits that some employees are entitled to a rate of pay that is lower than the minimum rate set out in clause 10.1. This includes employees covered by the following clauses in the exposure draft:

•  10.2 – Junior rates

•  10.3 – Supported wage system

•  10.4 –National training wage

[278] The definition of ‘ordinary hourly rate’ was previously determined by the Full Bench as follows:

[42] Definitions of ordinary rate of pay have been inserted in the exposure drafts that include an allowance or loading that is payable for “all purposes” along the following lines (depending on the application of the all purpose allowances):

All purpose provisions	Ordinary hourly rate definition
Only all purpose allowance is an industry allowance applying to all employees	ordinary hourly rate means the hourly rate for an employee’s classification specified in clause X.1, inclusive of the industry allowance
All purpose allowance(s) only applying to some employees	ordinary hourly rate means the hourly rate for the employee’s classification specified in clause X, plus any allowances specified as being included in the employee’s ordinary hourly rate or payable for all purposes
Industry allowance applying to all employees for all purposes and other all purpose allowance(s) only applying to some employees	ordinary hourly rate means the hourly rate for an employee’s classification specified in clause X, inclusive of the industry allowance. Where an employee is entitled to an additional all purpose allowance, this allowance forms part of that employee’s ordinary hourly rate

[279] We have decided to accept Ai Group’s proposal to replace the words ‘specified in clause 10.1’ with ‘prescribed by this award’ which will correct the issue identified.

4. Next steps

Firefighting Award

[280] The outstanding issue dealt with at [33] – [44] relating to ordinary hours of work and rostering with be the subject of a conference convened by Justice Ross.

[281] Interested parties are asked to comment on the provisional view expressed at [61] regarding overtime provisions for shiftworkers not working on a 10/14 roster. Submissions are to be sent to [email protected] no later than 4.00 pm on Wednesday 10 October 2018.

[282] Interested parties are also asked to comment on the issue at [71] relating the rate of pay to be paid to an employee while on annual leave. Submissions are to be sent to [email protected] no later than 4.00 pm on Wednesday 10 October 2018.

[283] The conference relating to the three outstanding issues in the Firefighting Award will be held before Justice Ross at 10.00 am on Wednesday 7 November 2018. A notice of listing will be issued shortly.

Graphic Arts Award

[284] Interested parties are asked to file a written submission regarding the proposed definition and the proposed change of any reference from ‘hourly rate’ to ‘ordinary hourly rate which is dealt with at [88] – [94].

[285] Submissions are to be sent to [email protected] no later than 4.00 pm on Wednesday 10 2018.

Health Professionals Award and Horse and Greyhound Training Award

[286] A separately constituted Full Bench will deal with the issues at [109] – [116] and [140] – [144] relating to the drafting of the part-time provisions in the Health Professionals and Horse and Greyhound Training Award.

Road Transport (Long Distance Operations) Award 2010

[287] Interested parties are asked to file a written submission regarding our provisional view that clause 12.3(b)(iii) of the exposure draft be deleted from the exposure draft in its entirety. This provisional view is set out at paragraph [220] of this decision. Submissions are to be filed no later than 4.00 pm on Wednesday 10 October 2018.

Finalising Exposure Drafts

[288] All other outstanding matters for Group 2 awards are now resolved or are being dealt with by separately constituted Full Benches.

[289] Each exposure draft will be updated and republished. Parties will be provided with one final opportunity to comment on the technical and drafting aspects of the exposure drafts in respect of the Group 2 awards. This will not be an opportunity to reargue matters which have already been determined, but will provide interested parties with an opportunity to comment on variations made to the exposure drafts to incorporate decisions relating to common issues and any technical drafting issues determined in this decision.

[290] A Statement regarding the process for finalising the exposure drafts and concluding the award stage of the review will be issued in due course.

PRESIDENT

Attachment A—List of Group 2 awards

Group 2 (19 awards)

 1   [2016] FWCFB 7254

 2   [2014] FWCFB 9412

 3   [2015] FWCFB 4658

 4   [2015] FWCFB 6656

 5   [2017] FWC 3205

 6   Ai Group submission, 30 June 2017 at paras [6], [12], [14], [16], [19], [23], [30], [35], [39], [47], [55]

 7   [2018] FWCFB 1548 at para [756] to [759]

 8   Further revised exposure draft, Alpine Resorts Award 2016, 13 June 2017 and 27 July 2017

 9   [2017] FWC 3205

 10   ASAA submission 30 June 2017

 11   Ai Group submission, 9 December 2016 at para [10]

 12   Ai Group submission, 9 December 2016 at para [10]

 13   Ai Group submission, 9 December 2016 at para [12]

 14   Ai Group submission, 9 December 2016 at para [13]

 15   PR599077

 16   ASAA submission, 30 June 2017 at para 2.4

 17   ASAA submission, 15 July 2015

 18   Bull DP, Report to the Full Bench, 7 December 2015, p9

 19   Exposure Draft, Alpine Resorts Award, 16 April 2017

 20   https://www.ivsi.info/en/ (accessed 4 January 2018)

 21   See [2018] FWCFB 4984

 22   Exposure draft, Animal Care and Veterinary Services Award 2015, 13 June 2017

 23   [2016] FWCFB 7254 at [23]-[28]

 24   [2016] FWCFB 7254, [23] – [28]

 25   AVA, submission, 6 December 2016

 26   Exposure Draft, Aquaculture Industry Award, 13 June 2017

 27   Exposure draft, Corrections and Detention (Private Sector) Award 2015, 13 June 2017

 28  Ai Group submission, 30 June 2017 at para 6.

 29   Exposure draft, Fire Fighting Industry Award 2015, 13 June 2017

 30   [2009] AIRCFB 945 at [49]

 31   AWU submission, 5 February 2015, at para 3

 32   [2009] AIRCFB 945

 33   CFA submission, 20 November 2015, para 17.3

 34   [2009] AIRCFB 945

 35   MFB submission, 20 November 2015 at para 23

 36   [2016] FWCFB 8025

 37   UFU submission, 30 November 2016 at para 1

 38   [2016] FWCFB 8025

 39   [2016] FWCFB 8025, [82]

 40   UFU submission, 30 November 2016at para 2.

 41   Metropolitan Fire and Emergency Services Board, Submission 20 November 2015 para 26

 42   Country Fire Authority, Submission 20 November 2015 para 20

 43   AWU submission, 5 February 2015 at para 5

 44   UFU submission, 30 November 2016 at para 3.

 45   AWU submission, 5 February 2015 at para 6

 46   AWU submission, 5 February 2015 at para 6

 47   MFB submission, 20 November 2015 at para 27

 48   UFU submission, 30 November 2016, para 4

 49   Ibid

 50   AWU submission, 5 February 2016, para 12

 51   CFA submission, 20 November 2015, para 23

 52   [2016] FWCFB 7254, [85]

 53   UFU submission, 30 November 2016 at para 5

 54   CFA submission, 20 November 2015 at para 24 and MFB submission, 20 November 2015 at para 30

 55   Exposure draft, Graphics Arts, Printing and Publishing Award 2016, 13 June 2017

 56   Ai Group submission, 30 June 2017 at paras 7-9

 57   ABI & NSBC submission, 10 July 2017 at para 6

 58   Fairfax Media submission, 15 June 2017 at p.1

 59   Ai Group submission, 14 December 2016 at paras 29-46

 60   AMWU submission, 18 November 2016

 61   Summary of status – Group 2 Awards – Technical and Drafting Issues at p.4-5

 62   [2017] FWCFB 5536 at [581]

 63   Ai Group submission, 14 December 2016 at para 34.

 64   [2014] FWCFB 9412, [68] – [69]

 65   Exposure Draft, Graphic Arts, Printing and Publishing Award, 13 June 2017

 66   Ai Group submission, 14 December 2016 at para 36.

 67   Ibid at paras 37-45.

 68   Ai Group submission, 28 January 2015 at para 88 and submission 4 March 2015 at para 63

 69   PIAA submission, 22 January 2015, AMWU submission, 16 February 2015

 70   ABI and NSWBC, Submission, 2 February 2015, at para 21

 71   Bull DP, Report to the Full Bench, 8 December 2015

 72   Bull DP, Report to the Full Bench, 8 December 2015, pg 17, item 59

 73   Ai Group submission, 14 December 2016 at para 46.

 74   ABI submission, 10 July 2017 at para 7; AWMU submission, 18 November 2016

 75   Report to the Full Bench, 8 December 2015 at p.4

 76   Fairfax Media submission, 15 June 2017; Fairfax Media submission, 27 June 2017; ABI submission, 10 July 2017 at para 6

 77   Graphics Arts – General – Award 2000 [AP782505CR]; Graphics Arts - General - Interim Award 1995 [M7985]

 78   Exposure draft, Health Professionals and Support Services Award 2015, 13 June 2017

 79   Ai Group submission, 30 June 2017 at paras 10-12

 80   ABI & NSWBC submission, 10 July 2017 at paras 8-11

 81   Ai Group submission, 9 December 2016 at paras 47-64

 82   PHIA submission, 30 November 2016 at p.2

 83   ADA submission, 9 December 2016 at para 2.1

 84   Business SA submission, 9 December 2016 at para 1.2

 85   Summary of status – Group 2 Awards – Technical and Drafting Issues at p.6-7

 86   Ai Group submission, 14 December 2016 at para 57

 87   Ai Group submission, 14 December 2016 at para 54

 88   Ibid at para 55

 89   Ibid 2016 at para 56

 90   [2018] FWC 411 at [18]

 91   Ai Group submission, 30 June 2017 at para 12

 92   Ai Group submission, 30 June 2017 at para 12

 93   Ai Group submission, 14 December 2016 at para 61

 94   Ai Group submission, 14 December 2016 at para 64

 95   Exposure Draft, Health Professionals and Support Services Award, 4 December 2016

 96   Report to the Full Bench, 16 April 2016

 97   Report to the Full Bench, 16 April 2016

 98   ACA submission, 5 May 2016

 99   ABI & NSWBC submission, 4 May 2016

 100   Notice of Listing, 7 July 2016

 101   Transcript, 7 July 2016 at [140]

 102   HSU submission, 5 August 2016

 103   [2016] FWCFB 7254 at [100]

 104   Ai Group submission, 14 December 2016 at para 63

 105   Ibid

 106   Ibid at para 64

 107   Exposure Draft, Health Professionals and Support Services Award, 13 June 2017

 108   Ai Group submission, 30 June 2017 at para 11; ABI submission, 10 July 2017 at p.3

 109   [2015] FWCFB 4658 at [95]

 110   Exposure Draft, Health Professionals and Support Services Award, 10 November 2017

 111   [2015] FWCFB 4658 at [96]

 112   PHIA submission, 30 November 2016 at p.2.; Business SA submission, 9 December 2016 at para 1.2.; ADA submission, 9 December 2016 at para 2.1

 113   Exposure draft, Horse and Greyhound Training Award 2015, 13 June 2017

 114   Ai Group submission, 30 June 2017 at para 13

 115   Ai Group submission, 14 December 2016 at para 65

 116   Summary of status – Group 2 Awards – Technical and Drafting Issues at p.10-11

 117   [2018] FWC 1544 at [22]

 118   Ai Group submission, 14 December 2016 at paras 71-75

 119   Ibid at para 74

 120   Ai Group submission, 14 December 2016 at para 78

 121   Ibid at para 76

 122   Ibid at para 77

 123   [2018] FWC 1544 at [14] – [22]

 124   Ai Group submission, 30 June 2017 at para 14

 125   Ai Group submission, 14 December 2016 at para 88

 126   Exposure draft, Medical Practitioners Award 2015, 13 June 2017

 127   ASMOF submission, 30 June 2017

 128   Ai Group submission, 14 December 2014 at para 90

 129   [2018] FWC 1544 at [22]

 130   [2015] FWCFB 4658 at [91]

 131   PR583033

 132   Exposure draft, Nurses Award 2015, 13 June 2017

 133   ANMF submission 30 June 2017

 134   Ai Group submission, 30 June 2017 at para 16

 135   Ai Group submission 9 December 2016 at paras 102-116; Ai Group submission 4 March 2015 at paras 90-105

 136   ACE submission, 8 December 2016 at p.2

 137   ANMF submission, 30 November 2011; ANMF submission in reply, 4 March 2015

 138   Report to the Full Bench, 9 October 2015

 139   [2018] FWC 1544 at [22]

 140   [2017[ FWCFB 5536 at [581]

 141   ANMF submission, 17 March 2017 at para 3

 142   Ibid

 143   Ai Group submission, 30 June 2017 at para 16

 144   Ai Group submission, 14 December 2016 at paras 113-114

 145   ANMF submission, 30 June 2017 at p.1

 146   ANMF submission, 30 June 2017 at p.1-2

 147   See Report to the Full Bench, 9 October 2015 at para 40

 148   Transcript, 8 October 2015, PN17-PN64

 149   ANMF submission, 30 June 2017

 150   ANMF submission, 4 March 2015 at p.3

 151   Ai Group submission, 4 March 2015 at para 100

 152   Report to the Full Bench, 9 October 2015

 153   Exposure draft, Racing Industry Ground Maintenance Award 2015, 13 June 2017

 154   Ai Group submission, 30 June 2017 at para 19

 155   Ai Group submission, 14 December 2016 at paras 117-126

 156   Summary of status – Group 2 Awards – Technical and Drafting Issues at p.18

 157  Ai Group submission,14 December 2016 at paras 125-126

 158   Ibid

 159   Exposure draft, Road Transport (Long Distance Operations) 2015,13 June 2017

 160   NRTA submission, 28 June 2017

 161   ABI & NSWBC submission, 10 July 2017 at para 13

 162   Ai Group submission, 30 June 2017 at paras 20-23

 163   NRTA submission, 29 November 2016

 164   ARTIO submission, 23 November 2016

 165   Ai Group submission, 14 December 2016 at paras 127-137

 166   Business SA submission, 9 December 201 at para 1.4

 167   Summary of status – Group 2 Awards – Technical and Drafting Issues at p 19-22

 168  NRTA submission, 28 June 2017 at para 8

 169  NRTA submission, 29 November 2016 at para 7

 170   Exposure draft Road Transport (Long Distance Operations) 2015, 2 November 2016

 171   NRTA submission, 28 June 2017 at para 8

 172   Ai Group submissions, 30 June 2017 at para 22

 173   Ai Group submissions, 30 June 2017 at para 22

 174  Ai Group submissions, 30 June 2017 at para 22

 175   Ai Group submissions, 30 June 2017 at para 22

 176   ARTIO submissions, 23 November 2016 at para 5

 177   ARTIO submissions, 23 November 2016 at para 5(a)

 178   ARTIO submissions, 23 November 2016 at para 5(b)

 179   NRTA submission, 28 June 2017 at para 13

 180   Report to the Full Bench, 19 February 2016 at para 16

 181   NRTA submission, 29 November 2016 at para 10

 182   Ai Group submission, 14 December 2016 at para 133-136

 183   NRTA submission, 28 June 2017 at para 10

 184   NRTA submission, 29 November 2016 at para 14

 185   Exposure draft, Road Transport and Distribution Award 2015, 13 June 2017

 186   Ai Group submission, 30 June 2017 at para 25-31

 187   NRTA submission, 28 June 2017

 188   ARTIO submission, 23 November 2016 at p.3

 189   Ai Group submission, 14 December 2016 at paras 138-147

 190   NRTA submission, 29 November 2016

 191   Summary of status – Group 2 Awards – Technical and Drafting Issues at p.23-25

 192   [2017] FWCFB 5536 at [581]

 193   [2017] FWCFB 3433 at [333]

 194   See Ai Group submission, 30 June 2017 at para 26

 195   [2014] FWCFB 9412 at [37]

 196   ARTIO submission, 23 November 2016 at p.3

 197   NRTA submission, 28 June 2017 at para 9

 198   [2015] FWCFB 4658 at [42]–[44]

 199   [2015] FWCFB 4658 at [70]

 200   [2015] FWCB 6656 at [93]

 201   [2008] AIRCFB 1000 at [50]

 202   [2015] FWCFB 6656 at [102]

 203   [2015] FWCFB 6656 at [107]

 204   [2015] FWCFB 6656 at [110]

 205   [2015] FWCFB 6656 at [109]

 206   ARTIO submission, 23 November 2016 at p.3

 207   Ai Group submission, 30 June 2017 at para 29

 208   Ai Group submission, 30 June 2017 para 29. The submission contains typographical errors regarding the clause numbers. This decision contains the correct clause numbers.

 209   Exposure draft – Road Transport Distribution Award 2010, 13 June 2017 at p.61

 210   NRTA submission, 29 November 2016

 211   Ibid

 212   NRTA submission, 28 June 2017

 213   TWU submission, 31 August 2018

 214   See Attachment A of the Report to the Full Bench, 30 November 2015

 215   [2014] FWCFB 9412 at [106] – [107]

 216   Exposure draft, Seafood Processing Award 2015, 13 June 2017

 217   ABI & NSWBC submission, 10 July 2017

 218   Ai Group submission, 30 June 2017

 219   Ai Group submission, 14 December 2016; Ai Group submission, 31 August 2016

 220   AMWU submission, 18 November 2016

 221   Summary of status – Group 2 Awards – Technical and Drafting Issues at p.26-28

 222   [2016] FWCFB 7254 at para [189]

 223   [2015] FWCFB 4658 at [95]-[96]

 224   Exposure draft, Storage Services and Wholesale Award, 13 June 2017

 225   Ai Group submission, 30 June 2017

 226   ABI & NSWBC submission, 10 July 2017

 227   Business SA submission, 9 December 2016

 228   Ai Group submission, 14 December 2016

 229   SDA submission, 1 November 2016

 230   Summary of status – Group 2 Awards – Technical and Drafting Issues at p.24-26

 231   Exposure draft, Transport (Cash in Transit) Award 2015, 13 June 2017

 232   Ai Group submission, 30 June 2017 at paras 41-47

 233   Ai Group submission, 14 December 2016 at paras 171-175

 234   Summary of status – Group 2 Awards – Technical and Drafting Issues at p.32

 235   Ai Group submission, 30 June 2017 at para 44

 236   Ibid at para 45

 237   Exposure draft, Waste Management Award 2015, 13 June 2017

 238   Ai Group submission, 30 June 2017 at paras 48-56

 239   AMWU submission, 30 June 2017 at paras 7-8

 240   Ai Group submission, 14 December 2016 at paras 176 -186 and AMWU submission, 18 November 2016

 241   Summary of status – Group 2 Awards – Technical and Drafting Issues at p.33-34

 242   AMWU submission, 30 June 2017 at paras 51-52

 243   Ai Group submission, 14 December 2016 at p.45-48

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