STATEMENT

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

4 yearly review of modern awards—Mannequins and Models Award 2010
(AM2014/277)

4 Yearly Review of Modern Review - Technical and drafting issues – Mannequins and Models Award 2010.

[1] As noted in a Statement issued on 13 February 2019 1, a number of technical and drafting issues in respect of the Mannequins and Models Award 2010 (Mannequins Award) remain outstanding.

[2] A decision relating to the exposure drafts for Group 4 awards published on 13 November 2018 2 determined a number of technical and drafting issues relating to the exposure draft for the Mannequins Award and advised that an updated exposure draft would be published. The updated exposure draft is published concurrently with this Statement.

[3] The November 2018 decision highlighted two outstanding issues in the exposure draft that would be referred to a conference. Those two issues relate to clause 11, which deals with minimum engagement for casual employees, and clause 17.3(c) which deals with meal allowances. The relevant paragraphs from the November 2018 decision 3 are extracted below:

‘Clause 11

[64] Clause 11 of the exposure draft deals with casual employees. The SDA submits that casual employment and rates are governed by clause 16.2 of the Exposure Draft. The SDA further submitted that various engagements, such as parades, paradettes and rehearsals, have maximum hours built in. The SDA advised that these engagements can be any minimum (such as 10 minutes) but cannot exceed the maximum; this is because the engagement has a set rate.

[65] In the AM2014/197 Casual employment common issue matter, the Full Bench determined that there was to be a 2 hour minimum engagement for casual employees in awards that do not contain daily minimum engagement. A determination relating to the Mannequins Award has not been issued and the following extract was made in relation to the award by that Full Bench in their decision of 21 September 2018:

‘[14] The SDAEA also submitted that we should defer making any determination to vary the Mannequins and Models Award 2010 to provide for a 2-hour minimum engagement because the structure of the draft determination did not accord with the current provisions of the award. In this respect the SDAEA submitted:

“4. Currently casuals can have shorter engagements but are guaranteed a rate for the engagement. This was explained in the SDA submission to the Award Review on the 1st July 2018 regarding the exposure draft in matter AM 2014/277.

5. The SDA in that submission made the following comment:

Clause 11

Casual employment and rates are governed by the draft clause 16.2. The various ‘engagements’ ie parades, paradettes, rehearsals etc have maximum hours built in. The engagement for these can be any minimum ie 30mins but cannot exceed the maximum hours. The engagement has a set rate regardless if the period is 10mins up to the maximum set for the type of engagement ie ‘single parade’ has a max of 2 hours.

(Clause 11 refers to the current Clause 10 provisions of the Award.)

6. The draft determination would mean models would need to attend for a period longer than is currently required, without any increase in pay. This is not the intent of inserting minimum engagement for casuals. This would be an unintended consequence due to the structure of payments to casual employees under the award.

7. The SDA believes that it is an issue that is now best suited to be referred to the Award Review stage of the Mannequins and Models Award given the unique structure of the award. This will enable the parties and the Commission to ensure that the intent of the minimum engagement for casuals is provided for if and where necessary, but does not cause unintended consequences.”

[15] We accept the SDAEA’s submission that the draft determination is not adapted for the peculiar casual employment provisions of this award, and that the issue of a casual minimum engagement period requires further award-specific consideration. Accordingly no final determination will be made and the issue will be deferred for consideration as part of the specific review of the Mannequins and Models Award.’

[66] A conference will be convened shortly in an effort to resolve this issue.’

. . .

‘Item 8 – Clause 17.3(c) – meal allowances

[92] Clause 17.3(c) deals with meal allowances for full-time and part-time employees, as follows:

(c) Meal allowances

(i) Overtime—an employee required to work at least one hour of overtime (Monday to Saturday inclusive) after their ordinary time of ending work will be paid a meal allowance of $12.94. Provided that where such overtime work exceeds four hours a further meal allowance of $11.60 will be paid.

(ii) Late night—any employee entitled pursuant to clause 17.3(c)(i) of this award to a second meal break on a weekday will be paid a meal allowance of $12.94.

(iii) Overtime on Sunday—an employee required to work more than four hours overtime on a Sunday will be paid a meal allowance of $12.94 and a further $11.60 when required to work more than eight hours on such day.

(iv) Meal provided—the above allowances will not be payable where the employer has their own cooking and dining facilities and by agreement with the employee supplies a substantial meal which will consist of food comprising soup, entree or joint, vegetables and sweets.

(v) Payment—meal money must be paid on the same day as the overtime is worked or in the weekly or fortnightly pay.

[93] The following question was posed at 17.3(c)(ii) of the exposure draft:

‘Parties are asked to clarify the interaction between clauses 17.3(c)(i) and (ii) – does clause 17.3(c)(ii) mean a second meal allowance on a Monday – Friday is $12.80 (now $12.94) rather than $11.47 (now $11.60).’

[94] The SDA submits that the reference in clause 17.3(c)(ii) to clause 17.3(c)(i) should be a reference to clause 14.2 instead. Clause 14.2 deals with meal breaks. The SDA submits that ‘the entitlement to this meal allowance for late night was not for working overtime but if you were due a second meal break for the day.’ The SDA referred to an attachment to an extract from clauses 31 and 32 of the relevant pre-modern federal award. The submission does not include the attachment and Commission staff have been unable to locate a relevant reference to clauses 31 and 32 of a premodern award. It appears this may be a reference to clauses 21 and 22 of the Mannequins and Models Award 2000. A further difficulty with the SDA submission is that clause 14.2 does not explain when an employee is entitled to a second meal break. The interaction between clauses 17.3(c)(i) and (ii) remains problematic.

[95] A conference will be convened shortly in an effort to resolve this issue.’

[4] A conference to deal with these two issues will be held at 3.00 pm on Friday 23 August 2019 in Sydney. A notice of listing will be issued shortly.

PRESIDENT

Printed by authority of the Commonwealth Government Printer

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 1   [2019] FWC 932

 2   [2019] FWCFB 6852 see [61] – [121]

 3   [2019] FWCFB 6852 see [64] – [66] and [92]-[95]