STATEMENT

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)

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

[1] This Statement concerns the outstanding items in the plain language re-drafting of the General Retail Industry Award 2010 (the current award).

[2] A decision was published on 18 January 2019 1 (the January decision) expressing provisional views about the two outstanding issues relating to the overtime provisions in the revised plain language exposure draft (the revised PLED) and interested parties were invited to review the proposed re-drafted clauses at paragraphs [12] and [14] of the January decision and to make submissions. The revised PLED was published on 20 November 2018.2

[3] Submissions were received from:

•  Australian Business Industrial and NSW Business Chamber (ABI); 3

•  the National Retail Association (the NRA); 4

•  the Newsagents Association of NSW and ACT (NANA); 5

•  the Shop, Distributive and Allied Employees Association (the SDA). 6

[4] The SDA requested an oral hearing rather than determining the matter on the papers. We propose to grant that request and an oral hearing will be held on 3 April 2019 at 4pm. A notice of listing will be issued shortly. To facilitate that hearing we propose to briefly summarise the outstanding issues and the parties’ submissions.

1. Amendments to proposed clauses 24.2 and 24.3

[5] In the January decision we expressed the provisional view that clauses 24.2 and 24.3 of the revised PLED should be amended and set out the proposed amended clauses at paragraph [12], as follows:

“24.2 Payment of overtime

(a) An employer must pay an full-time employee for hours worked in excess of the ordinary hours of work or outside the span of hours (excluding shiftwork) or outside the roster conditions prescribed in clause 15—Ordinary hours of work at the overtime rate specified in column 2 of clause 24.2(e).Table 10—Overtime rates.

(b) An employer must pay a part-time employee for hours worked in excess of the agreed hours in clause 10.5, or as varied under clause 10.6, at the overtime rate specified in column 2 of clause 24.2(e). Table 10—Overtime rates.

(c) An employer must pay a casual employee at the rate specified in column 3 of clause 24.2(e) Table 10—Overtime rates (inclusive of the casual loading) for hours worked by the casual employee:

(i) in excess of 38 ordinary hours per week or, if the casual employee works in accordance with a roster, in excess of 38 ordinary hours per week averaged over the course of the roster cycle; or

(ii) outside the span of ordinary hours for each day specified in clause 15.1 (Ordinary hours of work); or

(iii) in excess of 11 hours on one day of the week and in excess of 9 hours on any other day of the week.

(d) Overtime is calculated on daily basis.

24.3 (e) Overtime rate

An employer must pay an employee for overtime worked in accordance with clause 24.2 at the following rates:

(a) The overtime rate mentioned in clause 0 for a full-time or part-time employee is the relevant percentage specified in column 2 of Table 10—Overtime rates (depending on when the overtime was worked as specified in column 1) of the employee’s minimum hourly rate of pay.

(b) The overtime rate mentioned in clause 0 for a casual employee is the relevant percentage specified in column 3 of Table 10—Overtime rates (depending on when the overtime was worked as specified in column 1) of the employee’s minimum hourly rate of pay (inclusive of casual loading).

Table 10—Overtime rates

NOTE: Schedule B—Summary of Hourly Rates sets out the hourly overtime rate for all employee classifications according to when overtime is worked.”

[6] The SDA submits that the proposed drafting change to clause 24.2(a) has unintended consequences that would result in a substantive change to the application of overtime to part-time employees under the current award. In particular, the SDA submits that before the proposed drafting change, clause 24.2(a) of the revised PLED applied to “an employee” and that this includes both full-time and part-time employees. The SDA submits that both clause 12.9 of the current award and clause 10.3 of the revised PLED make it clear that all provisions of the award relevant to full-time employees also apply to part-time employees, including hours worked in excess of the ordinary hours of work, outside the span of hours (excluding shiftwork), or outside roster conditions.

[7] The SDA further submits that clause 29.2(a) of the current award does not distinguish between full-time and part-time employees in order to determine when overtime must be paid in relation to ordinary hours of work, the span of hours (excluding shiftwork), or roster conditions. In order to avoid a substantive change to the application of overtime for part-time employees the SDA proposes the following amendment to proposed clause 24.2(b):

“(b) An employer must pay a part-time employee:

(i) hours worked in excess of the ordinary hours of work or outside the span of hours (excluding shiftwork) or outside the roster conditions prescribed in clause 15—Ordinary hours of work at the overtime rate specified in column 2 of clause 24.2(e).

(ii) for hours worked in excess of the agreed hours in clause 10.5, or as varied under clause 10.6, at the overtime rate specified in column 2 of clause 24.2(e).”

[8] Interested parties can make submissions about the matters raised by the SDA at the hearing on 3 April 2019.

[9] A new issue relating to clause 24.2(c) was raised by NANA. NANA submits that the clause 24.2(c) of the revised PLED fails to adequately mention the extension to the spread of ordinary hours that applies to newsagencies. Clause 24.2(c) states:

(c) An employer must pay a casual employee at the rate specified in column 3 of the table in clause 24.2(e) (inclusive of the casual loading) for hours worked by the casual employee:

(i) in excess of 38 ordinary hours per week or, if the casual employee works in accordance with a roster, in excess of 38 ordinary hours per week averaged over the course of the roster cycle; or

(ii) outside the span of ordinary hours for each day specified in clause 15.1 (Ordinary hours of work) subject to clause 15.2; or

(iii) in excess of 11 hours on one day of the week and in excess of 9 hours on any other day of the week.

[10] NANA submits that current award provisions relating to hours of work are set out in clause 27.2 and particular provisions relating to hours of work for newsagencies are set out in clause 27.2(b)(i). NANA submits that the revised PLED provisions relating to hours of work are set out in clause 15.1 and particular provisions relating to hours of work for newsagencies are set out in clause 15.2.

[11] NANA contends that the practical impact of the application of clause 24.2(c), as currently drafted in the revised PLED, is that employers will be required to pay overtime to casual employees for time worked between 5.00 am and 7.00 am in newagencies at 175% of the ordinary rate instead of 140%, as currently provided.

[12] NANA submits that clause 24.2(c)(ii) of the revised PLED should be amended to include a reference to clause 15.2 as well as a reference to clause 15.1.

[13] The NRA agrees with NANA’s submission and notes that the corresponding provision to revised PLED clause 24.2(c)(ii) in the current award is clause 29.2(c)(ii). The NRA submits that clause 29.2(c)(ii) of the current award refers to the “span of ordinary hours for each day specified in clause 27.2” and that clause 27.2 of the current award captures both the span of hours for each day and the exceptions.

[14] The NRA notes that the omission of a reference to clause 15.2 of the revised PLED affects not only newsagencies but also video stores and retailers falling within the general exception in clause 15.2(c). The NRA proposes that the final form of clause 24.2(c)(ii) of the revised PLED should be:

“(ii) outside the span of ordinary hours for each day specified in clause 15.1 (Ordinary hours of work) subject to clause 15.2;”

[15] The SDA also agrees with NANA’s submission that clause 24.2(c) contains no reference to clause 15.2 of the revised PLED. The SDA supports the remedy proposed by the NRA and agrees that it would clarify the application of the overtime provision.

[16] We agree that clause 24.2(c) of the revised PLED fails to mention the extension to the spread of ordinary hours that applies to newsagencies, video stores and retailers falling within the general exception of clause 15.2(c). It is our provisional view that the amendment set out in [14] above be made to clause 24.2(c)(ii).

[17] Interested parties will be invited to comment on the provisional view expressed above at the hearing on 3 April 2019.

2. Amendment to proposed clause 24.4

[18] At paragraph [14] of the January decision we expressed the provisional view that clause 24.4 of the revised PLED should be amended to include a reference to clause 6A of the revised PLED in addition to a reference to section 65 of the Fair Work Act 2009 (the Act).

[19] ABI opposes the provisional view on the basis that confusion may arise regarding the source of power to make a request for flexible working arrangements. ABI submits that s.65 of the Act is the source of an employee’s entitlement to make a request for flexible working arrangement and proposed clause 6A is a term about the facilitation of flexible working arrangements within the meaning of section 139(1)(b) of the Act.

[20] ABI submits that proposed clause 6A of the revised PLED imposes obligations on the employer in responding to a request which has been made under s.65 of the Act. ABI submits that the proposed amendment to clause 24.4 may create the impression that a request may be made under clause 6A as an alternative or in addition to a request made under s.65 of the Act.

[21] The SDA does not oppose the provisional view of the Commission to amended clause 24.4(g) of the revised PLED to include a reference to requests for flexible working arrangements under proposed clause 6A.

[22] In the decision issued on 25 September 2018 7 relating to requests for flexible working arrangements the Full Bench stated that “the model term is a term about ‘the facilitation of flexible working arrangements’. The model term facilitates access to those arrangements by setting out an employer’s obligations where an employee has made a request for a change in working arrangements under s.65 of the Act.

[23] Proposed clause 6A of the revised PLED is in the same terms as clause 31A of the current award and must be read in conjunction with section 65 of the Act. Clause 31A.1 of the current award sets out the application of the clause:

“31A.1 Employee may request change in working arrangements

Clause 31A applies where an employee has made a request for a change in working arrangements under s.65 of the Act.

Note 1: Section 65 of the Act provides for certain employees to request a change in their working arrangements because of their circumstances, as set out in s.65(1A).

Note 2: An employer may only refuse a s.65 request for a change in working arrangements on ‘reasonable business grounds’ (see s.65(5) and (5A)).

Note 3: Clause 31A is an addition to s.65.”

[24] We accept ABI’s submission regarding the proposed amendment to clause 24.4(g) of the revised PLED; however, where a section of the Act is mentioned, it is prudent to provide a cross-reference to any related award clause.

[25] We note that proposed clause 6A facilitates access to flexible working arrangements by setting out the employer’s obligations in relation to considering, accepting or refusing a request. The information in the current note below clause 24.4(g) of the revised PLED is encompassed by proposed clause 6A.1 and would not be necessary if the clause were to include a cross-reference to the clause in the award.

[26] One possible solution to the issue raised by ABI would be to amend the note to include a cross-reference to clause 6A as follows:

“(g) An employee may, under section 65 of the Act, request to take time off, at a time or times specified in the request or to be subsequently agreed by the employer and the employee, instead of being paid for overtime worked by the employee. If the employer agrees to the request then clause 24.4 will apply for overtime that has been worked.

NOTE: Clause 6A contains additional provisions to section 65 of the Act relating to requests for flexible working arrangements.

NOTE: If an employee makes a request under section 65 of the Act for a change in working arrangements, the employer may only refuse that request on reasonable business grounds (see section 65(5) of the Act).”

[27] Interested parties will be invited to comment on the above proposal at the hearing on 3 April 2019.

PRESIDENT

Printed by authority of the Commonwealth Government Printer

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 1   [2019] FWCFB 276.

 2   Revised Retail PLED, 20 November 2018.

 3   ABI submission, 8 February 2019.

 4   NRA submission, 29 January 2019.

 5   NANA submission, 22 January 2019.

 6   SDA submission. 8 February 2019.

 7   [2018] FWCFB 5753.