DECISION

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

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

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

[1] This decision finalises the plain language review of the Restaurant Industry Award 2010 (the Restaurant Award).

[2] A decision was issued on 24 October 2017 1 (the October 2017 decision) determining most of the issues arising from the review. Decisions issued on 21 May 20182 and 3 August 20183 determined the balance of outstanding items and other matters that arose during the plain language review.

[3] As noted in the October 2017 decision, 4 issues raised in relation to provisions in the plain language exposure draft of the Hospitality Industry (General) Award 2010 (the Hospitality PLED) may affect the drafting of corresponding provisions in the Restaurant PLED; in particular the outcome of items 12, 14, 15, 17, 19, 20, 22, 32, 46, 53, 67A, 91 and 93 listed in the Hospitality PLED summary of submissions.5 This Decision deals with those items.

[4] Items 12, 14, 15 of the Hospitality PLED summary of submissions were dealt with in the Restaurant PLED decision issued on 3 August 2018. 6 Item 32 does not affect the Restaurant PLED. No changes to the Restaurant PLED arose from items 19 and 93.

Item 17 – Hospitality PLED summary of submissions

[5] Item 17 relates to entitlements covered by the casual loading, captured in the wording of the note at clause 11.2 of the Hospitality PLED. The item was dealt with in the Hospitality decision issued on 21 May 2018. 7 In that decision we decided that the note was not accurate and should not be retained. The issue was resolved by deleting the note under clause 11.2. The corresponding provisions in the Restaurant and Hospitality current awards and PLEDs are identical; therefore, we have decided to delete the note at clause 11.2 of the Restaurant PLED.

Item 20 – Hospitality PLED summary of submissions

[6] Item 20 relates to conditions of employment for apprentices and the wording at clause 12.3 of the Hospitality PLED. The item was resolved at the Hospitality conference on 20 December 2017 8 and clause 12.3 was updated to remove the reference to ‘full-time’ employees. The corresponding provisions in the Restaurant and Hospitality current awards and PLEDs are identical; therefore, we have decided to remove the reference to ‘full-time’ employees at clause 12.3 of the Restaurant PLED,:

‘12.3 This award applies to an apprentice in the same way that it applies to an full-time employee except as otherwise expressly provided by this award.’

Item 46 – Hospitality PLED summary of submissions

[7] Item 46 relates to the payment of wages and rostered days off at clause 23.5 of the Hospitality PLED. The item was dealt with in the Hospitality decision issued on 21 May 2018 9 and resolved by amending the wording at clause 23.5. The corresponding provisions in the Restaurant and Hospitality current awards and PLEDs are identical; therefore, we have decided to make the same amendment to clause 22.4 of the Restaurant PLED, as follows:

‘22.4 An employee paid by cash or cheque who has a rostered day off on a pay day is entitled, at the employee’s election, to be paid on their last day at work before their rostered day off.’

Item 53 – Hospitality PLED summary of submissions

[8] Item 53 relates to the special clothing allowance and the wording at clause 26.6(a) of the Hospitality PLED. The item was dealt with at the Hospitality conference on 20 December 2017 10 and resolved by updating clause 26.6(a) to reflect the wording of the current award. The same issue was raised by United Voice in relation to clause 24.5(a) of the Restaurant PLED; however, it was subsequently withdrawn.11 The corresponding provisions in the Restaurant and Hospitality current awards and PLEDs are identical and for consistency we have decided to make the same amendments to clause 24.5(a) of the Restaurant PLED as follows:

‘24.5 Special clothing allowance

(a) In clause 24.5 special clothing means any article item of clothing (including waterproof or other protective clothing) that the employer requires the employee to wear or that it is necessary for the employee to wear but does not include shoes, hosiery, socks and any easily obtainable black and white attire (other than a dinner suit or evening dress) clothing that is not part of a uniform or formal clothing.’

Item 67A – Hospitality PLED summary of submissions

[9] Item 67A relates to annual leave for certain shiftworkers as defined at clause 30.2(a) of the Hospitality PLED. The item was dealt with at the Hospitality conference on 12 February 2018 12 and resolved by inserting the phrase ‘7 day’ before ‘shiftworker’ in clause 30.2(a). The corresponding provisions in the Restaurant and Hospitality current awards and PLEDs are identical; therefore, we have decided to insert the phrase ‘7 day’ before ‘shiftworker’ in clause 28.2(a) of the Restaurant PLED. Clause 28.2(a) has been amended as follows:

‘28.2 Additional paid annual leave for certain shiftworkers

(a) Clause 28.2 applies to an employee who is a 7 day shiftworker regularly rostered to work on Sundays and public holidays in a business in which shifts are continuously rostered 24 hours a day for 7 days a week.’

Item 91 – Hospitality PLED summary of submissions

[10] Item 91 relates to the descriptions of training arrangements referred to in Schedule D.2 and D.6 of the Hospitality PLED. The item was dealt with in the Hospitality statement issued on 25 October and resolved by adding a definition of ‘training agreement’ at clause 2—Definitions and by replacing ‘training contract’ with ‘training agreement’ where it appears in clauses 12.6, 12.7 and 12.8. 13 The corresponding provisions in the Restaurant and Hospitality current awards and PLEDs are identical; therefore, we have decided to add a definition of ‘training agreement’ at clause 2—Definitions and replace ‘training contract’ with ‘training agreement’ where it appears in clauses 12.6, 12.7 and 12.8 of the Restaurant PLED. The definition of ‘training agreement’ at clause 2—Definitions, is as follows:

‘training agreement means the apprenticeship training arrangement, however termed, relevant to the State and Territory apprenticeship legislation entered into by an apprentice and an Employer.’

Other matters

Clause 12—Apprentices

[11] The current cross-reference in clause 12.4 (Apprentices) of the Restaurant PLED limits an apprentice to being paid in accordance with junior cooking apprentice minimum rates. As the award also covers adult apprentices we have decided to amend the cross-reference to refer to clauses 18.3 and 18.5. Clause 12.4 will be amended, as follows:

‘12.4 An employer must pay an apprentice in accordance with clauses 18.3—Junior cooking apprentice rates, 18.4—Proficiency payments and 18.5—Adult apprentices. Table 4—Junior cooking apprentice minimum rates.’

Clause 14—Classifications

[12] The note at clause 14 of the Restaurant PLED contains a reference to Table 2—Minimum rates. In accordance with the Restaurant decision of 3 August 2018 14 and for consistency with the Hospitality PLED, we have decided to update the reference to ‘clause 18—Minimum rates’. The note at clause 14 will be amended as follows:

‘NOTE: The minimum rates applicable to the classifications in this award are in clause 18—Minimum rates. Table 2—Minimum rates.’

Clause 16—Breaks

[13] Clause 16 of the Hospitality PLED was amended as a result of the issues raised in items 33, 34 and 35. 15 We have decided to amend the wording at clause 16.1 of the Restaurant PLED to reflect the plain language expert’s amendments in the Hospitality PLED. Clause 16.1 will be amended as follows:

‘Clause 16 deals with meal breaks and rest breaks and gives an employee an entitlement to them in specified circumstances meal breaks and rest breaks.’

Clause 26.1—Requirement of pay overtime rates

[14] Clause 26.1(b) of the Restaurant PLED contains a reference to clause 10.6. This was inserted in error and will be deleted. Clause 26.1(b) will be amended as follows:

‘(b) An employer must pay a part-time employee at overtime rates in the circumstances specified in clause 10.13—Payment rates, as varied under clause 10.6.’

[15] This decision finalises the plain language re-drafting of the Restaurant Award, subject to the determination of some substantive claims to vary the award and the finalisation of a number of common issues affecting all, or most, modern awards. A final PLED incorporating the changes arising from this decision and recent variations to the Restaurant Award will be published shortly.

PRESIDENT

Printed by authority of the Commonwealth Government Printer

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 1   [2017] FWCFB 5397

 2   [2018] FWCFB 2559

 3   [2018] FWCFB 4496

 4   [2017] FWCFB 5397 at [49]-[50].

 5   Hospitality Award Summary of Submissions, 22 February 2018

 6   [2018] FWCFB 4496 at [3]-[24].

 7   [2018] FWCFB 2710 at [24]–[27].

 8   20 December 2017 conference transcript, PNs 182 – 189.

 9   [2018] FWCFB 2710 at [8]–[14].

 10   Hospitality conference transcript, 20 December 2017, PNs 118 – 121.

 11   United Voice submission, 5 September 2018

 12   Hospitality conference transcript, 12 February 2018, PNs 132 – 152.

 13   [2017] FWC 5402 at [30].

 14   [2018] FWCFB 4496 at [14]-[17]

 15   [2018] FWCFB 2710 at [36]–[39].