| [2018] FWCFB 6711 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.156 - 4 yearly review of modern awards
4 yearly review of modern awards – Plain language re-drafting – Hospitality Industry (General) Award 2010
(AM2016/15)
JUSTICE ROSS, PRESIDENT |
MELBOURNE, 8 NOVEMBER 2018 |
4 yearly review of modern awards – Plain language re-drafting – Hospitality Industry (General) Award 2010
[1] A decision issued on 21 May 2018 1 (the May 2018 decision) determined a number of the outstanding issues in relation to the plain language redrafting of the Hospitality Industry (General) Award 2010 (the Hospitality Award) and set out the next steps for resolving the remaining outstanding items. Interested parties were invited to make submissions on those outstanding issues.
[2] A decision 2 issued on 3 August 2018 (the August 2018 decision) finalised the remaining plain language re-drafting issues, save for the wording of clause 16.5 (now clause 16.6 in the further revised PLED published on 8 August 2018). In the August 2018 decision we proposed the following amendment to what was then clause 16.5:
‘16.5 If an employee is not allowed to take an unpaid meal break in accordance with clause 16.2 during a shift of more than 6 hours, the employer must pay the employee 50% of the employee’s ordinary hourly rate extra from the end of 6 hours after starting work until either the employee is allowed to take the break or the shift ends.’
[3] Interested parties were invited to make submissions in relation to the proposed amendment.
[4] No parties opposed the proposed amendment to what was then clause 16.5. We will adopt the amended clause, the PLED will be amended accordingly.
[5] The PLED will also be amended to address the typographical errors were identified by the Australian Hotels Association. 3
[6] As noted in the August 2018 decision 4 amendments made to provisions in the plain language exposure draft of the Restaurant Industry Award 2010 (the Restaurant PLED) may affect the drafting of corresponding provisions in the Hospitality PLED. We now deal with those matters.
[7] Clause 11.2 of the Hospitality PLED was amended as a result of the decision relating to part-time and casual employment issued on 5 July 2017 5 and a determination6 which was re-drafted in plain language. In the plain language process, an amendment was made to clause 11.2 of the Restaurant PLED. For consistency between the two awards, and to more closely reflect the existing provisions, clause 11.2 of the Hospitality PLED will be amended as follows:
‘11.2 An employer must pay a casual employee for each ordinary hour worked a loading of 25% on top of in addition to the ordinary hourly rate.’
[8] Clause 11.5 of the Hospitality PLED contains a reference to Table 10—Overtime rates. In the August 2018 decision 7 we updated clause 10.13(b) to assist the reader to navigate the award and for consistency with the decision in the Restaurant Award.8 For these reasons we have decided to update the reference in clause 11.5 of the Hospitality PLED as follows:
‘11.5 An employer must pay a casual employee at the rates prescribed in clause 28.4—Overtime rate Table 10—Overtime rates for all time worked in excess of the hours prescribed in clause 11.3.’
[9] This decision finalises the plain language re-drafting of the Hospitality 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 Hospitality Award will be published shortly.
PRESIDENT
Printed by authority of the Commonwealth Government Printer
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3 See Submission from AHA, 17 August 2018
4 [2018] FWCFB 4468 at [80]
7 [2018] FWCFB 4468 at [30].
8 [2018] FWCFB 4496 at [14]-[17].