[2018] FWCFB 6850

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 – General Retail Industry Award 2010
(AM2016/15)

JUSTICE ROSS, PRESIDENT
VICE PRESIDENT HATCHER
COMMISSIONER HUNT

MELBOURNE, 8 NOVEMBER 2018

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

[1] This decision finalises the plain language re-drafting of the General Retail Industry Award 2010 (the Retail Award).

[2] Conferences were held on 19 September 2017, 26 October 2017, and 21 June 2018 to discuss items raised by parties in relation to the plain language exposure draft of the Retail Award (the Retail PLED). A report was issued on 19 September 2017 1 setting out the status of items following the September 2017 conference and Statements regarding the outcomes of the subsequent conferences were issued on 27 October 20172 and 23 July 2018.3

[3] A revised Retail PLED (the revised PLED) was published on 25 July 2018. 4 Interested parties were invited to review the revised PLED and the list of outstanding issues and advise the Commission whether there were any further issues that require determination.

[4] A further conference was held on 27 September 2018 to discuss the outstanding items. The agenda for the conference was published on the Commission’s website. A statement was issued on 1 October 2018 5 setting out the outcome of the September 2018 conference. A number of items were resolved at the conference and a process was set out for finalising the outstanding items.

[5] Interested parties were invited to make further submissions about amendments proposed at paragraphs [20], [26], [30] and [48] of the October 2018 statement as well as any unintended consequences arising from amendments to the revised PLED. 6

[6] Submissions were received from the following parties:

• The Shop, Distributive and Allied Employees Association (the SDA) 7; and

• Australian Business Industrial and NSW Business Chamber (ABI). 8

[7] This decision deals with the outstanding plain language re-drafting items.

New item – clause 11.1—casual employment

[8] This item relates to casual employment. At the September 2018 conference the SDA contended that clause 11.1 of the revised PLED did not reflect the terms of the current Award. At paragraph [19] the October 2018 statement it was proposed that in order to align the revised PLED with the current Award, clause 11.1 of the revised PLED be deleted and replaced by:

‘11.1 A casual employee is an employee engaged as such.

11.2 An employee who is not covered by clause 9—Full-time employment or clause 10—Part-time employment must be paid as a casual employee.’

[9] The SDA supported 9 the proposed clause and ABI did not oppose its adoption.10

[10] The item is resolved by deleting clause 11.1 of the PLED and replacing it with the clause set out at [8].

Item 49 – Clause 15.7—Rosters (Ordinary hours of work)

[11] Item 49 concerns the drafting of entitlements relating to consecutive days off. A drafting issue that the SDA raised regarding clause 15.7 in the revised PLED was resolved in the October 2018 Statement. 11

[12] Prior to the October 2018 Statement 12 Business SA had submitted that a drafting error in clause 15.7(d)(vi) required amendment.13 SDA opposed this submission during the September 2018 conference.
[13] Business SA was invited to file further submissions in support of its proposed variation if it wished to continue to press the submission. 14 No further submissions were filed by Business SA or any other parties. We will not make the amendment as proposed by Business SA however, the clause does contain a typographical (in bold):

‘The maximum number of consecutive days on which an employee may be worked…’

[14] We will make the following amendment:

‘The maximum number of consecutive days on which an employee days on which an employee may work…’.

New item – clause 15.8—Employees regularly working Sundays

[15] This item concerns the drafting of clause 15.8 which relates to hours of work for employees regularly working Sundays. The SDA submitted that clause 15.8 should be amended to ensure consistency with clause 28.13 of the current award as well as consistency with the approach to restructuring other rostering provisions of the revised PLED and the objectives of the process.¹⁵

[16] Arising from discussions at the September 2018 conference, the October 2018 Statement 16 proposed that clause 15.8 should be varied as follows:

‘15.8 Employees regularly working Sundays

(a) The employer must roster an employee who regularly works Sundays in such a way that they have 3 consecutive days off (including Saturday and Sunday) per 4 week cycle.

(b) Paragraph (a) is subject to any agreement for different arrangements entered into by the employer and an individual employee at the written request of the employee.

(c) Different arrangements agreed under paragraph (b) must be recorded in the time and wages record.

(d) The employee may end an agreement under paragraph (b) by giving the employer 4 weeks’ notice.

(e) An employee cannot be required as a condition of employment to agree to an arrangement under paragraph (b).’

[17] The SDA supported the proposed variation. 17 No party opposed the proposal.

[18] This item is resolved by adopting the clause set out at [16].

New item – clause 17—Work organisation

[19] Clause 17 of the revised PLED states:

‘17. Work organisation

An employer may require an employee to perform duties across the different classification streams set out in Schedule A—Classification Definitions that they are competent to perform.’

[20] Prior to the October 2018 Statement 18 the SDA had submitted that clause 17 should be deleted from the PLED as there was no equivalent in the current award and that it was inconsistent with clause 16 of the PLED and clause 14 of the current award which do not contemplate an employee being required ‘to perform duties across the different classifications streams’.19

[21] During the September 2018 conference ABI sought to take this item on notice and were invited, along with any other interested parties, to file submissions regarding the proposed deletion of PLED clause 17.

[22] ABI subsequently submitted that it no longer sought to press the issue as there was no equivalent clause in the current award. 20

[23] This item is resolved by deleting clause 17 from the revised PLED.

Item 57 – Clause 18.1—Minimum rates table

[24] Item 57 concerns the minimum rates table in clause 18.1 of the revised PLED. The October 2018 Statement confirmed that this issue would be determined on the papers based on material already before the Commission. 21

[25] The SDA submits that clause 18.1 is unclear and that additional notes should be inserted to better inform the reader about all the rates that must be considered in relation to payment of wages under the award, as follows:²²

‘NOTE 4: Clause X—Overtime sets out rates of pay when overtime applies.

NOTE 5: Clause X—Penalty rates sets out rates of pay when penalties should apply.

NOTE 6: Clause X—Public holidays sets out rates of pay for work on Public holidays.’²³

[26] Business SA submits that the additional notes are unnecessary and that the three notes already in place in clause 18.1 adequately assist the reader in calculating the minimum rate payable to an employee.²⁴ ABI submit that their clients oppose the insertion of the notes proposed by the SDA.²⁵

[27] Clause 18.1 currently states:

18.1 Adult rates

An employer must pay an adult employee (other than an apprentice) the minimum hourly rate specified in column 3 (or for a full-time employee the minimum weekly rate specified in column 2) in accordance with the employee classification specified in column 1 of Table 4—Minimum rates. An employer must pay an adult employee (other than an apprentice) the minimum hourly rate specified in column 3 (or for a full-time employee the minimum weekly rate specified in column 2) in accordance with the employee classification specified in column 1 of Table 4—Minimum rates.

NOTE 1: Adult employee is defined in clause 2—Definitions.

NOTE 2: Provision for calculating rates for a junior employee is at clause 18.2.

NOTE 3: Clause 29—Rate of pay for shiftwork sets out rates of pay for shiftwork

Table 4—Minimum rates

Column 1 Employee classification	Column 2 Minimum weekly rate	Column 3 Minimum hourly rate
Retail Employee Level 1	$789.90	$20.79
Retail Employee Level 2	$808.70	$21.28
Retail Employee Level 3	$821.40	$21.62
Retail Employee Level 4	$837.40	$22.04
Retail Employee Level 5	$871.80	$22.94
Retail Employee Level 6	$884.50	$23.28
Retail Employee Level 7	$928.80	$24.44
Retail Employee Level 8	$966.50	$25.43

[28] We decline to make the changes proposed by the SDA as the notes as drafted provide sufficient detail to find additional rates of pay, are not meant to be exhaustive and are consistent with other plain language drafts.

Items PTC1, 63 and 65—Clause 25—Overtime

[29] Items PTC1, 63 and 65 relate to the overtime clause.

[30] Item 63 relates specifically to reasonable overtime, a matter being dealt with in other proceedings. A decision was issued in in relation to that item on 17 September 2018²⁶ and the model clause has been updated in the revised PLED as a result.

[31] Item 65 relates to differences between clause 25 of the revised PLED and the current award which were resolved as a result of the part-time and casual Full Bench proceedings.²⁷

[32] Item PTC1 relates to amendments made to clause 25 of the revised PLED as a result of the part-time and casual Full Bench proceedings.²⁸

[33] The October 2018 Statement noted that the SDA had reserved its position to review the PLED in its entirety 29 noting that changes may arise from the Overtime for Casuals common issue.

[34] A number of parties also sought the opportunity to review the overtime clause once the issues surrounding the rostering provisions (items 49 and 51) were resolved. As these items have now been resolved above at [13] and [17], interested parties are invited to make submissions by 22 November 2018.