| [2019] FWCFB 1255 |
| FAIR WORK COMMISSION |
STATEMENT |
Fair Work Act 2009
s.156—4 yearly review of modern awards
4 yearly review of modern awards—plain language re-drafting—status update
(AM2016/15)
JUSTICE ROSS, PRESIDENT |
MELBOURNE, 28 FEBRUARY 2019 |
4 yearly review of modern awards – plain language re-drafting – status update.
[1] This Statement sets out the current status of matters before the Plain Language Full Bench and the next steps in the plain language project.
[2] As a part of the Award stage of the Review, the Commission conducted a Pilot to produce a plain language exposure draft based on the Pharmacy Industry Award 2010 (the Pharmacy Award). An expert was engaged to re-draft the Pharmacy Award in plain language without changing the legal effect of the clauses. User testing was conducted on the plain language draft in February and March 2016. Thirty-one employers and 30 employees covered by the Pharmacy Award participated in the testing conducted on behalf of the Commission. A Report from the Plain language modern award pilot was published on the Commission’s website on 21 April 2016.
[3] Plain language drafting Guidelines were developed as a part of the Pilot which took into account plain language drafting principles and practical insights about the needs of employers and employees generated from the user testing as part of the Pilot. The Guidelines were finalised in June 2017 after consultation with interested parties.
[4] In a Statement of 6 May 2016, the Commission proposed to prepare plain language drafts of award-specific clauses in four other modern awards:
• Clerks – Private Sector Award 2010;
• General Retail Industry Award 2010;
• Hospitality Industry (General) Award 2010; and
• Restaurant Industry Award 2010.
[5] The selection of the first tranche of modern awards to be redrafted in plain language was based on an assessment of the level of award reliance among employers and employees in the industries covered by these awards. Particular weight was given to award reliance among small businesses (those with fewer than 20 employees) on the basis that these entities are less likely to have a dedicated internal human resources management expertise to assist with the interpretation of awards.
[6] In a Statement of 27 March 2017 (the March statement) the Commission proposed that a further 10 modern awards would be drafted in plain language. The awards proposed for inclusion the second tranche of modern awards for plain language re-drafting were:
• Aged Care Award 2010 (Aged Care Award);
• Building and Construction General On-site Award 2010 (Building On-site Award);
• Children’s Services Award 2010 (Children’s Services Award);
• Cleaning Services Award 2010 (Cleaning Award);
• Fast Food Industry Award 2010 (Fast Food Award);
• Hair and Beauty Industry Award 2010 (Hair and Beauty Award);
• Manufacturing and Associated Industries and Occupations Award 2010 (Manufacturing Award);
• Security Services Industry Award 2010 (Security Award);
• Social, Community, Home Care and Disability Services Industry Award 2010 (SCHADS Award); and
• Vehicle Manufacturing, Repair, Services and Retail Award 2010 (Vehicle Award).
[7] In selecting these modern awards we took into consideration the following factors:
• industries or subsectors identified by the Fair Work Ombudsman as having high levels of non-compliance;
• award reliance survey data regarding modern awards used by small businesses;
• the resources available to the Commission; and
• current public interest.
[8] The plain language redrafting of the following awards is complete or nearing completion:
• Pharmacy Industry Award 2010; 1
• Clerks (Private Sector) Award 2010; 2
• Restaurant Industry Award 2010; 3
• Hospitality Industry General Award 2010; 4
• General Retail Industry Award 2010; 5
• Security Services Industry Award 2010; 6 and
• Cleaning Services Award 2010; 7
[9] A decision was issued on 20 February 2019 which determined the substantive issues in the Fast Food Industry Award 2010. 8 Plain language redrafting of this award will commence in the coming weeks. The substantive issues in the Hair and Beauty Industry Award 2010 remain outstanding and plain language redrafting will commence when these issues have been determined.
Other awards identified for consideration
[10] In a decision on 28 August 2017 9 we noted that further consideration would be given to inclusion of the following awards in the plain language re-drafting process after substantive claims relating to the awards have been determined:
• Aged Care Award 2010;
• Building and Construction General On-Site Award 2010;
• Children’s Services Award 2010;
• Manufacturing and Associated Industries and Occupations Award 2010;
• Social, Community, Home Care and Disability Services Industry Award 2010; and
• Vehicle Manufacturing, Repair, Services and Retail Award 2010.
[11] In a recent statement relating to substantive issues in group 4 awards, the outstanding substantive items for the Aged Care Award 2010, Children’s Services Award 2010, and Social, Community, Home Care and Disability Services Industry Award 2010 were listed in Attachment A. 10 A statement was issued on 24 December 201811 setting out a provisional timetable for dealing with the substantive issues.
[12] The plain language redrafting of the Aged Care Award 2010, Children’s Services Award 2010, and Social, Community, Home Care and Disability Services Industry Award 2010 will commence after the substantive issues have been heard and determined. A timetable for consultation on the re-drafting process will be issued in the second half of 2019.
[13] During the Review, the Vehicle Manufacturing, Repair, Services and Retail Award and the Manufacturing and Associated Industries and Occupations Award have been substantially redrafted. Substantive changes have also been made to the Building and Construction General On-site Award. Given the limited resources of the Commission, the time constraints in relation to the finalisation of the review and the substantive changes that have been made to these awards it is our provisional view that these awards not be redrafted in plain language at this time.
[14] Schedule 1 to the Fair Work Amendment (Repeal of 4 Yearly Reviews and Other Measures) Act 2018 (Cth) repealed the provision for 4 yearly reviews of modern awards in the Fair Work Act 2009 (Cth), with effect from 1 January 2018. Consequently, there will not be any further 4 yearly reviews. However, the residual framework for exercising modern awards powers includes s.157 which allows the Commission may make, vary or revoke a modern award on its own motion. In 2020, consideration will be given to the further re-drafting of awards in plain language using the residual framework in the Act. The Vehicle, Manufacturing and Building Awards will be considered for inclusion in that process.
[15] Interested parties are invited to comment on the provisional view at [93]. Submissions should be filed by 4pm on Friday 22 March 2019. If there is no opposition to the provisional view we will not redraft these awards in plain language at this time.
[16] The Commission identified five standard clauses in a statement 12 of July 2016;
• Award flexibility;
• Consultation;
• Dispute Resolution;
• Termination of Employment; and
• Redundancy.
[17] Five decisions 13 have been issued in relation to the plain language re-drafting of standard clauses. Determinations14 varying most modern awards were issued on 26 October 2018 and 13 December 2018.
[18] A small number of award specific issues remain outstanding and a statement will be issued in relation to these in April 2019.
[19] The Statement issued on 13 February 2019 15 provided a timeline for the finalisation of exposure drafts prepared for the review. The timeline includes 3 further updates to exposure drafts including the plain language ‘light touch’ process. The ‘light touch’ process will include the following:
• Changes to the structure of exposure drafts in Groups 1 to 3 in accordance with the plain language structure. This has already been completed for the awards in group 4. 16
• Definitions will be moved to clause 2 in all exposure drafts.
• Consistency with the Plain Language Guidelines and removal of archaic language.
• Annual, weekly and hourly rates in minimum wages tables.
• Cross-references in coverage clauses.
• Occupational health and safety references.
• Re-drafting some particularly complicated clauses in exposure drafts to ensure that they are simple and easy to understand.
[20] We deal with each of these matters below.
[21] A conference in relation to the scope of light touch process will be convened in April 2019. A notice of listing will be issued separately. An example of an exposure draft that has been through the light touch process will be published in advance of the conference.
Consistency with the Plain Language Guidelines
[22] Chapter 6 of the Plain Language Guidelines sets out principles for the use of language in modern awards. These principles include; avoiding unnecessary jargon; using the active voice instead of the passive voice and removing archaic language.
[23] In the August 2017 decision 17 we foreshadowed that archaic or overly technical language in modern awards would be replaced in accordance with the Plain Language Guidelines.
Annual, weekly and hourly rates in minimum wages tables
[24] A Statement 18 issued on 21 March 2018 referred an issue raised by Ai Group about whether the words “full-time employee” should be included under the minimum weekly wage in the wages table was referred to the plain language Full Bench. In a decision19 in July 2015 the Group 1 Full Bench decided to include hourly rates of pay in the body of the award (in addition to weekly rates) to ensure that awards are simple and easy to understand.
[25] Ai Group submitted that the preamble to the minimum wages table does not state that the table applies to full-time employees and consequently a literal reading appears to require the payment of the minimum weekly rate to all adult employees, including part-time and casual employees. Ai Group propose to insert the words “(full-time employees)” below the heading of the column containing minimum weekly rates in numerous awards in the technical and drafting proceedings of the award stage of the review. 20
[26] The amendment proposed by the Ai Group has already been applied to some exposure drafts in Group 4 of the award stage proceedings. For example, the Aged Care Award has been updated as follows:
17.1 Minimum wages—Aged Care Employee
Employee classification |
Minimum weekly rate (full-time employee) |
Minimum hourly rate |
Aged care employee—level 1 |
$764.70 |
$20.12 |
Aged care employee—level 2 |
$796.30 |
$20.96 |
[27] We have reached a provisional view that the approach suggested by Ai Group should be adopted across all exposure drafts.
[28] Interested parties are invited to make submissions on our provisional view by 4.00 pm, Friday 22 March 2019. If there is no opposition to the provisional view we propose to apply this change to all exposure drafts as a part of the plain language ‘light touch’.
Cross-references in coverage clauses
[29] Ai Group raised an issue regarding the cross-references to the industry in the coverage clause in the Market and Social Research Award 2010. Ai Group submitted that clauses 3.4 and 3.5 of the exposure draft incorrectly refer to the ‘industry set out in clauses 3.1 and 3.2’ because the definition of the industry is contained in 3.2 only. In some modern awards, the industry definition is included in the definitions clause, while in others it appears in the coverage clause. The issue arose because industry definitions were moved into the coverage clauses in some exposure drafts in the award stage. In the July Group 3 decision, the Full Bench also determined that an industry definition would be included in coverage clauses at 3.2 and that a signpost clause would be included in the definitions clause referring to the definition at clause 3.2. 21 The cross-referencing issue raised by Ai Group is outstanding. The Group 3 Full Bench noted that this affects all modern awards and referred to the issue to the Plain Language Full Bench.22
[30] Clauses 3.4 and 3.5 refer to the coverage of on-hire employees and group training services respectively and are included in most exposure drafts in the same way as the Market and Social Research Award 2010 as follows:
‘3. Coverage
3.1 This industry award covers employers throughout Australia who are engaged in the market and social research industry in respect of work by their employees in the classifications listed in clause 9—Minimum wages to the exclusion of any other modern award.
3.2 Market and social research industry means all market and social research including every process, trade, business or occupation on or in relation to or in connection with market and social research and all support work engaged in or in connection with market or social research, for both public and private purposes.
…
3.4 This award covers any employer which supplies labour on an on-hire basis in the industry set out in clauses 3.1 and 3.2 in respect of on-hire employees in classifications covered by this award, and those on-hire employees, while engaged in the performance of work for a business in that industry. This subclause operates subject to the exclusions from coverage in this award.
3.5 This award covers employers which provide group training services for trainees engaged in the industry and/or parts of industry set out at clauses 3.1 and 3.2 those trainees engaged by a group training service hosted by a company to perform work at a location where the activities described herein are being performed. This subclause operates subject to the exclusions from coverage in this award.’ (emphasis added)
[31] Many exposure drafts have been drafted in a similar format with clause 3.1 determining to whom the award applies, while 3.2 provides a detailed definition of the industry referred to in clause 3.1. Most current awards refer to clause 3.1 only.
[32] This issue has been dealt with in plain language exposure drafts by referring to the relevant industry instead of to a clause. An example taken from the Pharmacy Industry Award is set out below:
‘4.1 In this industry award, community pharmacy means a business to which all of the following apply:
(a) the business is established wholly or partly for compounding or dispensing prescriptions for, or selling medicines or drugs to, the general public from the premises on which the business is conducted, whether or not other goods are so sold from those premises; and
(b) if required to be registered under legislation for the regulation of pharmacies in force in the place in which the premises on which the business is conducted are located, the business is so registered; and
(c) the business is not owned by a hospital or other public institution, or operated by government.
4.2 This industry award covers, to the exclusion of any other modern award:
(a) employers in the community pharmacy industry throughout Australia; and
(b) employees (within a classification defined in Schedule A—Classification Definitions) of employers mentioned in paragraph (a).
4.3 This industry award also covers:
(a) on-hire employees working in the community pharmacy industry (within a classification defined in Schedule A—Classification Definitions) and the on hire employers of those employees; and
(b) trainees employed by a group training employer and hosted by a community pharmacy to work in the community pharmacy industry (within a classification defined in Schedule A—Classification Definitions) and the group training employers of those trainees. (emphasis added)’
[33] In order to resolve the cross referencing issue, we propose amending the clauses dealing with on-hire employees and group training services to refer to the relevant industry instead of a clause reference.
[34] In addition, any exposure drafts that do not currently have the industry definition in the coverage clause will be amended in accordance with the Group 3 decision. 23
[35] Interested parties are invited to make submissions in relation to the cross-reference(s) at clauses 3.4 (on-hire) and 3.5 (group training) and the proposal at [33] above by 4.00 pm, Friday 22 March 2019. Reply submissions are due 4.00 pm, Friday 19 April 2019.
[36] This issue will be decided on the papers unless any party requests a formal hearing by 4.00 pm, Friday 5 April 2018.
Occupational health and safety references
[37] Uniform work health and safety laws have been adopted in all states except Victoria and Western Australia. At a mention held 7 June 2016 it was proposed that the term ‘occupational health and safety’ used in the exposure drafts be amended to ‘work health and safety’. In a decision on 7 July 2017 24, the Group 3 Full Bench expressed the view that the terms can be used interchangeably and accepted that there was merit in updating exposure drafts to reflect the current terminology.
[38] The Full Bench noted that the term ‘occupational health and safety’ is used in the standard dispute resolution provisions contained in all awards. This clause was reviewed as a part of the plain language review of standard clauses and the term ‘work health and safety’ was adopted in standard clause D.9. 25 Modern awards were updated to incorporate the standard clauses from 1 November 2018.
[39] A list of references to ‘occupational health and safety’ in awards and proposed variations were listed in an Attachment 6 July 2017 decision and are at Attachment A to this decision. 26
[40] Submissions were invited on this issue and it was referred to the plain language Full Bench. 27 The following parties made submissions:
• ABI&NSWBC – 9 August 2017;
• Business SA – 4 August 2017;
• Master Builders’ Australia – 4 August 2017;
• Ai Group – 2 August 2017;
• Housing Industry Association – 31 July 2017;
• CFMEU Construction & General – 31 July 2017;
• AMWU – 31 July 2017; and
• United Voice – 27 July 2017.
[41] All parties agreed that the phrase should be amended wherever it appears in the particular awards as identified in Attachment A. Accordingly, these amendments will be made during the light touch process. Both the MBA and the CFMMEU noted that there is a substantive claim which may affect the relevant clauses in the Building Award and sought to defer the issue in that award until after the substantive issues have been determined. We confirm that the exposure draft for the Building Award will not be amended until the construction Full Bench has determined the relevant issues.
Substitution of public holidays
[42] During the review of Group 3 awards the National Tertiary Education Union (the NTEU) submitted that clauses in various higher education awards were inconsistent with the NES. The clauses in question provide for the substitution of public holidays, such as clause 20.2 of the Educational Services (Post-Secondary Education) award exposure draft:
‘20.2 Substitution of public holidays by agreement
By agreement between the employer and the majority of employees in an enterprise another day may be substituted for a public holiday.’ [Emphasis added]’
[43] The NTEU submit that the words ‘the majority of employees in an enterprise’ should be replaced with the words ‘an employee’ to ensure that the term is consistent with s.115(3) of the Fair Work Act 2009 (Cth). Section 115(3) states:
‘s.115 Meaning of public holiday
…
(3) A modern award or enterprise agreement may include terms providing for an employer and employee to agree on the substitution of a day or part-day for a day or part-day that would otherwise be a public holiday because of subsection (1) or (2)’ [Emphasis added]
[44] As noted above, s.115(3) of the Act states that a modern award may include terms providing for ‘an employer and an employee’ to agree on the substitution of a day or part-day for a day or part-day that would otherwise be a public holiday.
[45] The Australian Higher Education Industrial Association and Business SA agreed with NTEU. ABI submitted that the relevant clauses were not inconsistent with the NES.
[46] The Commission has identified 78 of 122 modern awards contain clauses which permit the substitution of public holidays by agreement with the majority of employees. A further five modern awards permit the substitution of public holidays by an employer, and one award does not specify whether agreement is with an employee or a majority of employees.
[47] This issue was referred to the Plain Language Full Bench in statement 28 in March 2018. Directions29 were issued in April inviting submissions on the identified awards and whether a term which permits public holiday substitution by agreement between an employer and a majority of employees excludes the NES, within the meaning of s.55 of the Act. Interested parties subsequently filed submissions and submissions in reply.
[48] A decision in relation to this issue will be published in April 2019.
Reasonable overtime
[49] During proceedings related to the plain language re-drafting of the Retail Award, an issue arose regarding the interaction of the ‘reasonable overtime’ clause and s.62 of the NES. A similar issue arose in the plain language re-drafting of the Pharmacy Industry Award. In statements 30 published in December 2017 and February 2018, we identified 11 modern awards which contain similar ‘reasonable overtime’ provisions to those in the Pharmacy and General Retail Industry Awards. The Full Bench invited submissions on whether the reasonable overtime clauses should be deleted and replaced with a note referring to the NES.
[50] A decision 31 that provisionally determined the ‘reasonable overtime’ issue was issued on 17 September 2018. We provided three options regarding the factors for determining reasonableness of a requirement to work overtime. A hearing was held on 27 September 2018 and a decision32 was issued on 29 October 2018 finalising a reasonable overtime model term and expressing the provisional view that the model term should be inserted into each of the relevant awards. Draft variation determinations were published on 16 November 2018. Submissions were received from a number of parties seeking award specific variations to the model term.
[51] A decision in relation to the proposed award specific variations will be issued in the coming weeks.
National Training Wage
[52] In a Statement of July 2016 33 it was proposed that the National Training Wage Schedule (NTW Schedule) be standardised and removed from all awards except the Miscellaneous Award 2010, and that the NTW be incorporated into other awards by reference to the Miscellaneous Award.
[53] In a decision in June 2017 a reference term was inserted into the 94 modern awards specified in Attachment A of that decision. A decision 34 of August 2017 finalised the plain language NTW Schedule and the Miscellaneous Award 2010 NTW Schedule was varied35 in September 2018.
[54] A Mention was held on 7 September 2018 to discuss the retention of award-specific NTW schedules in relation to eight awards and the proposal to insert a NTW Schedule into the Surveying Award 2010. Parties seeking to insert a NTW Schedule into the Surveying Award were instructed to make a substantive application to vary the award. 36 The eight awards in which a party had sought to retain an award specific NTW schedule are:
• Airline Operations—Ground Staff Award 2010 (the Ground staff Award);
• Airport Employees Award 2010 (the Airport employees Award);
• Building and Construction General On-site Award 2010 (the Building Award);
• Food, Beverage and Tobacco Manufacturing Award 2010 (the Food Manufacturing Award);
• Joinery and Building Trades Award 2010 (the Joinery Award);
• Manufacturing and Associated Industries and Occupations Award 2010 (the Manufacturing Award);
• Mobile Crane Hiring Award 2010 (the Mobile Crane Award); and
• Sugar Industry Award 2010 (the Sugar Award).
[55] At the Mention, discussions took place around the nature of submissions received in respect of award-specific schedules to be maintained. The Commission noted that submissions in support of retaining award-specific NTW Schedule in certain awards not only sought to retain the current NTW schedule, but also sought to make substantive variations to them. 37 The claim to insert a NTW into the Surveying Award 2010 was withdrawn at the Mention.
[56] Parties with an interest in the Ground Staff Award, the Airport Employees Award, the Food Manufacturing Award, the Manufacturing Award and the Sugar Award were directed to hold discussions and report back at a second mention on 27 September 2018. The AMWU wrote to the Commission on 26 October 2018 to report that an in principle agreement had been reached with Ai Group and that draft schedules would be filed as soon as practicable. Nothing has been received to date and the parties are directed to file their draft schedules by 4 pm on Friday 22 March 2019.
[57] The CFMMEU sought to retain the NTW schedule in the Building Award, the Joinery Award and the Mobile Crane Award. Consideration of the Building Award was deferred until after the Construction Group Full Bench issue a decision in relation to clause 28. 38
[58] In relation to the Joinery Award and the Mobile Crane Award, draft schedules taking in to account the submissions of the parties made to date will be issued in due course.
Terminology of Rates
[59] In a Statement 39 of March 2018, an issue raised by Ai Group regarding the terminology used to describe rates was referred to the plain language Full Bench. The issue is set out in that statement as follows:
“[4] The Ai Group submission of 31 August 2016 is as follows:
‘3. Our first concern relates to the characterisation of premiums payable pursuant to an award. Modern awards variously characterise premiums that are payable to an employee as penalties, loadings or allowances. For example, an employee may be entitled to a shift “loading” in respect of work performed during a shift at a particular time. In numerous instances, the characterisation of a particular premium payable under an award has been altered in the corresponding provision of an exposure draft. For instance, where a current award mandates the payment of a shift “allowance”, the exposure draft may instead refer to it as a shift “penalty”. A change to the terminology used to describe a particular payment in an award often has implications for the calculation of other entitlements in the award. We are also concerned that a change in terminology may have implications for the calculation of entitlements under legislation, such as workers’ compensation and long service leave statutes.
[60] In its submissions of 23 September 2016 Ai Group further submitted:
“• award provision which requires that shiftworkers be paid, say, 15% extra can legitimately be called a “loading”, but it cannot legitimately be called a “penalty rate” or a “shift rate”.
• An award provision which states that shiftworkers are to be paid, say, 115% of the ordinary time rate cannot legitimately be referred to as a “loading” or an “allowance”, but it can be referred to as a “shift rate”.
• The annual leave clause in an award cannot legitimately refer to the “shift loadings” in the shiftwork clause if the shift loadings (e.g. 15%) have been replaced with shift rates (e.g. 115%) and the loading is not separately identified.
• The annual leave clause in the award cannot provide that an employee is to receive a 17.5% loading or any higher “shift penalty”, if the former shift penalty of, say, 15% has been redrafted as 115%.’
[61] In the Group 3 decision 40, the Full Bench acknowledged that payment to compensate employees for working shiftwork had been variously described as penalties, loadings, allowances, or rates in modern awards and that ‘shift penalties’ had been used in the Exposure Drafts to make the term consistent, stating that:
‘We are satisfied that a consistent approach on shift penalties is appropriate. While Ai Group proffers a return to existing terminology, an examination of the current award provisions shows there is no consistency between or even within modern awards. The Ai Group submissions on inconsistencies within the exposure drafts of the awards are noted and we will provide provisional views as to how these may be resolved.’
[62] The Full Bench referred this issue to the Plain Language Full Bench. 41
[63] We agree with the Ai Group’s explanation of the problems with terminology set out at [60]. We propose to make amendments to the terminology on an award by award basis during the light touch process. Interested parties will be given the opportunity to make submissions about those proposed changes during that process.
[64] In relation to annual leave loading, Ai Group contended that any reference to an employee being paid the higher of annual leave loading or ‘shift loading’ in exposure drafts could be interpreted as an employee on annual leave being paid the higher of 17.5% or a shift loading of, for example 130%. Ai Group stated that this could lead to some shiftworkers being paid 230% while on annual leave. The Ai Group Submission is as follows:
‘4. Our second concern relates to the manner in which premiums are expressed in exposure drafts. Numerous exposure drafts state, for example, that a shift worker is to be paid 130% of the relevant rate, rather than a 30% loading. This has implications for the calculation of other award entitlements which still refer to loadings (e.g. annual leave payments).’’ (footnotes omitted)
[65] We accept the submission of the Ai Group that the terminology used in exposure drafts to describe various penalties is likely to cause confusion.
[66] Of the 112 modern awards that make provision for annual leave loading, 56 awards contain a reference to an employee being paid the higher of the annual leave loading or a shift “loading” or an “allowance”. These 56 awards are set out at Attachment B to this Statement. The Group 3 Full Bench has previous expressed the view that the provisions may be ambiguous because the annual leave loading clause isolates the loading component of the shiftwork provision and compares it to annual leave loading. As the redrafted penalty rates clause no longer identifies the loading component of the shiftwork penalty separately, the annual leave loading clause is not comparing like with like. 42
[67] In relation to the annual leave loading issue, we propose adopting the suggestion of Ai Group (based on the Clerks PLED):
‘(c) For an employee who would have worked on day work only had they not been on leave, the additional payment is the greater of:
(i) 17.5% of the employee’s minimum hourly rate for the employee’s ordinary hours of work in the period; or
(ii) The minimum hourly rate for the employee’s ordinary hours of work in the period inclusive of weekend penalty rates as specified in clause 21— Penalty rates (employees other than shiftworkers). For the purposes of this clause, the relevant weekend penalty does not include the minimum hourly rate for the employee’s ordinary hours of work.
(d) For an employee who would have worked on shiftwork had they not been on leave, the additional payment is the greater of:
(i) 17.5% of the employee’s minimum hourly rate for the employee’s ordinary hours of work in the period; or
(ii) The minimum hourly rate for the employee’s ordinary hours of work in the period inclusive of shift and weekend penalty rates for shiftwork as specified in clause 28—Penalty rates for shiftwork. For the purposes of this clause, the relevant penalty rates for shiftwork do not include the minimum hourly rate for the employee’s ordinary hours of work.
[68] This solution appears to be relatively straightforward in terms of drafting. However, it requires the reader to deduct the minimum wage from the penalty rates clause and then compare the remainder to the annual leave loading. This may make the award more complex and difficult for users to apply.
[69] We note that in the plain language review of the Clerks Private Sector Award 2010, Ai Group raised a related issue in exposure drafts where the public holiday penalty clause has been moved from the public holidays clause to the penalty rates clause. In those proceedings Ai Group submitted that this has created an issue in the annual leave loading clause because:
‘It requires the payment of “penalty rates as specified in clause 23”, which prescribes weekend and public holiday penalty rates. This deviates substantively from the current clause 29.3(b)(i), which contemplates only weekend penalty rates. It thereby creates an additional entitlement that is not bestowed by the Award.’ 43
[70] In a decision in September 2018 we decided to insert the word “weekend” before the words “penalty rates” in clause (c)(ii) and the words “shift and weekend” before the words “penalty rates” in clause (d)(ii) as an interim measure, as set out in [67]. We also propose to make this change to all exposure drafts set out at Attachment B.
[71] Interested parties are invited to make submissions in relation to Ai Group’s proposed re-drafting of the annual leave loading clause at [66] above by 4.00 pm, Friday 22 March 2019. Reply submissions are due 4.00 pm, Friday 19 April 2019.
[72] This issue will be decided on the papers unless any party requests a formal hearing by 4.00 pm, Friday 5 April 2018.
Take home pay and absorption clause
[73] A statement issued on 16 October 2018 44 set out two issues that had been deferred until the conclusion of the award stage of the Review. The first issue is the standard absorption clause and the second concerns the take-home pay order clause. Both appear in the Commencement and transitional clause contained in all modern awards. The 18 October 2018 Statement referred these two issues to this Full Bench.
[74] A decision finalising this issue was published on 27 February 2019.
Spread of hours
[75] A statement was issued on 13 November 2018 45 concerning a possible ambiguity identified in a facilitative clause in a number of awards relating to the alteration to the span of ordinary hours by up to one hour at either end of the spread (the Alteration clause). The statement included a list of modern awards with an ambiguous Alternation clause. Interested parties were invited to make submissions on both the ambiguity and the list of relevant awards.
[76] A decision finalising this issue will be published shortly.
Shutdown provisions
[77] During the annual leave common issue proceedings an issue arose in relation to the Black Coal Mining Award 2010 (the Black Coal Award) regarding annual leave shutdown. In a Statement 46 issued in November 2017, shutdown provisions in awards listed at Attachment A to that statement were referred to the plain language Full Bench. There is also one outstanding issue that relates to continuity of service when an employee is on annual leave shutdown.
[78] In a decision 47 issued on 22 September 2016, the Annual Leave Full Bench decided that the broad right for an employer to direct the taking of annual leave without other considerations and requirements, as was provided for in clause 25.4(c) of the Black Coal Award, was not consistent with s.93(3) of the Act.48 Therefore it was a term that could not be included in a modern award.49
[79] In the decision issued in March 2017 50, the Annual Leave Full Bench observed that a term permitting different arrangements for annual leave during a period of shutdown or close-down may be consistent with the statutory framework, depending on the terms of such a provision. The Full Bench decided to vary the Black Coal Award to delete the existing shutdown clause and expressed the provisional view that a revised shutdown provision should be inserted and invited parties to file submissions on that view.51
[80] A decision 52 issued in October 2017 dealt with the form of the revised shutdown clause. The Full Bench decided to insert the revised shutdown provision as expressed in the March decision subject to some amendments and the Black Coal Award was varied on 9 November 2017.53
[81] Attachment C sets out a list of the other 80 modern awards containing shutdown provisions.
[82] During proceedings relating to the shutdown provisions in the Black Coal Award, the Construction, Forestry, Mining and Energy Union (CFMEU) submitted that where an employee takes unpaid leave during a shutdown period that leave counts as service and provisions to that effect should be inserted. 54 The CFMEU submitted it is fair and reasonable for unpaid leave during shutdown to count as service because the leave would be taken as a result of the employer’s action and would not be taken in absence of that action.55 The CFMEU also submitted an employee therefore should not be subject to a penalty and a shutdown situation is distinct from the scenario where an employee initiates the taking of leave without pay.56
[83] The Full Bench was not satisfied that it was appropriate to deal with this issue at that time because it may have implications for the review of all shutdown terms in modern awards. 57 Accordingly, the continuity issue was referred to this Full Bench.
[84] Parties are asked to make submissions on the following:
• Whether the modern awards that currently contain shutdown provisions should be varied to include the model term at Attachment D;
• Any award specific variations that should be made; and
• Whether unpaid leave taken during a shutdown period counts as service.
[85] Submissions should be filed by 4 pm on Friday 22 March 2019. Reply submissions are due 4.00 pm, Friday 19 April 2019.
[86] This issue will be decided on the papers unless any party requests a formal hearing by 4.00 pm, Friday 5 April 2018.
Hourly rates of pay schedules – minimum hourly rate and percentage of ordinary hourly rate
[87] In the July 2017 Group 3 decision the Full Bench set out an issue related to the hourly rates of pay schedules in exposure drafts that had been raised by Ai Group. 58
[88] Ai Group made submissions that the rates in the hourly rates of pay schedule to a number of awards (generally Schedule B) contain rates which are calculated based on the minimum hourly rate, however the table in which the rates are included indicates that those rates are a “percentage of the ordinary hourly rate”. In particular, Ai Group raised the issue in relation to the exposure draft for the Business Equipment Award 2010 and the exposure draft for the Horticulture Award 2010
[89] Schedule B.1.2 of the exposure drafts provide as follows:
‘The rates in the tables below are based on the minimum hourly rates in accordance with clause 9.2. Consistent with clause B.1.1, all purpose allowances need to be added to the rates in the table where they are applicable.’
[90] However, the second row of the table at B.2.1 indicates that the rates are to be calculated as a percentage of the ordinary hourly rate. Ai Group submitted that this reference may cause confusion as readers may conclude that the rates have been calculated based on the ordinary hourly rate, which is defined to include all purpose allowances.
[91] Where an award contains an all-purpose allowance that applies to some employees, the rates in the table must be read in the context of the following (generally at clause B.1.1):
‘Ordinary hourly rate is the minimum hourly rate of pay for an employee plus any allowance payable for all purposes to which the employee is entitled. Where an allowance is payable for all purposes in accordance with clause XX, this forms part of the employee’s ordinary hourly rate and must be added to the minimum hourly rate prior to calculating penalties and overtime.’
[92] To provide further clarity, the parties proposed inserting the following to clause B.1.2 of the Business Equipment Award exposure draft:
‘Consistent with Clause B.1.1, all purpose allowances need to be added to the rates in the table where they are applicable’
[93] Ai Group noted in a conference in July 2016 that if the table at B.2.1 were read in isolation, a reader may assume that the table contains the ‘ordinary hourly rate’.
[94] The issue was subsequently identified in 40 awards containing all-purposes allowances and generally relates to Schedule B of those awards. 59
‘ [360] We accept the proposition that to include every pay rate, particularly for awards where all purpose allowances only apply to some employees, is not practical and would amount to a substantive change in approach. However, to improve the understanding of the rates table we propose that for modern awards that contain an all purpose allowance which applies to only some employees clause X.1.2 will be amended in accordance with the approach suggested in respect of the Business Equipment Award 2010 (see [357] above). Additionally a footnote will be marked next to ‘% of ordinary hourly rate’ in the heading row of the rates table, which states:
‘Rates in table are calculated based on the minimum hourly rate, see clauses X.1.1 and X.1.2.’
[361] Where an award contains an all purpose allowance that applies to all employees and that allowance has been incorporated in the rates in the hourly rates tables, this will be identified by a note along the following lines:
xOrdinary hourly rate includes the industry allowance payable to all employees for all purposes.’
[96] Interested parties were invited to comment on the Full Bench’s proposal at [95]. Submissions should be filed by 4pm on Friday 22 March 2019. If there is no opposition to the provisional view we propose to apply this change to all exposure drafts as a part of the plain language ‘light touch’.
14B Job search entitlement for casual employees in the Fitness Industry Award 2010
[97] During award stage proceedings, the Australian Swim Schools Association (ASSA) submitted that clause 14.3 of the Fitness Award is ambiguous to the extent that it is unclear if the entitlement applies to casual employees. 60 The ASSA submitted the ambiguity may be resolved by varying the clause to clearly state if the entitlement applies or does not apply to casual employees. This issue was referred to the Plain Language Full bench in a decision in October 201761. The next steps for this matter are set out in a Statement issued on 28 February 2019.62
Award code |
Award |
Proposed amendment |
Airline Operations—Ground Staff Award 2010 |
A.3 Maintenance and engineering stream A.3.1 Aircraft Worker 1 is an employee who is undertaking up to 38 hours induction training which may include information on the enterprise, conditions of employment, introduction to supervisors and fellow workers, training and career path opportunities, enterprise layout, work and documentary procedures, … | |
Airport Employees Award 2010 |
A.1 Technical services officers A.1.10 Technical services officer Level 9 (c) Example of duties undertaken: … (x) Have an understanding of personnel, A.3.6 Ground services officer level 6 Employment at this level requires an employee to be proficient in duties ranging to and including Level 6 duties as specified by local agreement. (a) Typical Level 6 duties: • Have a good working knowledge of rules, regulations pertaining to work duties (e.g. RPA’s, airport technical manual, Civil Aviation Orders (CAO’s) and | |
Amusement, Events and Recreation Award 2010 |
A.10.1 An employee appointed to this level undertakes three or more of the following duties: … (e) Responsible for all | |
Animal Care and Veterinary Services Award 2010 |
A.2.3 Level 2 A Level 2 employee will use limited discretion and initiative. Knowledge relating to the care of animals will be necessary. Level of responsibility, skills and knowledge An employee at this level will: (a) following … | |
Black Coal Mining Industry Award 2010 |
A.5.1 Open cut mines The following lists are not exhaustive, but rather are indicative of the types of competencies utilised in open cut mines. INDUCTION Induction (Generic, Minesite); Interpersonal; First Aid; Fire Fighting; A.5.2 Underground mines The following lists are not exhaustive, but rather are indicative of the types of competencies utilised in underground mines. INDUCTION Induction (Generic, Minesite); Interpersonal; First Aid; Fire Fighting; | |
Broadcasting and Recorded Entertainment Award 2010 |
61.4 All cinema employees—break between shifts (a) Employees must have at least 10 consecutive hours off duty between the end of each shift and starting ordinary work on the next day or shift. Where the employer is satisfied that A.1.16 Make-up and Hairdresser … (e) Assistant Hairdresser or Make-up Artist Skills, competencies, duties and responsibilities held and exercised (i) Assistant Hairdresser • Assists the hairdresser in the course of the hairdresser’s duties by ensuring that hairdressing devices are prepared in accordance with (ii) Assistant Make-up Artist • Assists the make-up artist in the course of the make-up artist’s duties by ensuring that make-up materials and devices are prepared in accordance with … A.1.20 Set Design … (b) Senior Set Designer Skills, competencies, duties and responsibilities held and exercised … (iii) Skilled in … A.1.22 Properties (a) Property Person/Senior Studio Hand … (x) Understands all … (c) Property Assistant/Studio Hand/Prop and Scenery Storeperson/Set Dresser Skills, competencies, duties and responsibilities held and exercised (xiv) Works under broad guidelines and | |
Building and Construction General On-site Award 2010 |
21.10 First aid allowance … (b) The first aid allowance will be paid at the following additional rates: (i) an employee who holds the minimum qualifications recognised under the relevant State or Territory … 21.10 First aid allowance (b) The first aid allowance will be paid at the following additional rates: (ii) an employee who holds a higher first aid certificate recognised under the relevant State or Territory … 22. Special rates (k) Asbestos Employees required to wear protective equipment (i.e. combination overalls and breathing equipment or similar apparatus) as part of the necessary safeguards as required by the appropriate | |
Car Parking Award 2010 |
12.5 Car Parking Officer Level 2 (c) Tasks an employee at this level may be required to perform include: … • observing basic … | |
Cement and Lime Award 2010 |
Now a part of the Cement, Lime and Quarrying Award. See Quarrying Award 2010 above. | |
Children’s Services Award 2010 |
A.1.8 Level 5 Indicative duties • Co-ordinate centre or service operations including | |
Concrete Products Award 2010 |
A.1.1 Undertaking the employer’s induction programme which may include information on the enterprise, conditions of employment, introduction to supervisors and fellow employees, training and career path opportunities, plant layout, work and documentation procedures, | |
Contract Call Centre Award 2010 |
A.2 Classification definitions A.2.1 Customer contact stream—classifications (b) Customer Contact Officer Level 1 (ii) Indicative tasks An employee at this level would normally perform the following indicative tasks: • follow … (c) Customer Contact Officer Level 2 (iii) Indicative tasks An employee at this level would normally perform the following indicative tasks: • follow … (e) Customer Contact Team Leader (iv) Indicative tasks An employee at this level would normally perform the following indicative tasks: • follow … | |
Corrections and Detention (Private Sector) Award 2010 |
A.2.4 Indicative tasks of a Correctional Officer are to: • Comply with … A.3.4 Indicative tasks of a Correctional Officer—Perimeter/Security are to: • Comply with … A.4.5 Indicative tasks of a Correctional Supervisor are to: • Comply with … A.5.3 Indicative tasks for a Court Security Officer are to: • Comply with the A.7.3 Indicative tasks for a Custody Officer are to: • Comply with | |
Cotton Ginning Award 2010 |
7. Classifications 7.2 Cotton ginning employee level 2 (CG2) Employees at this level: (a) are workers who are in charge of operating a piece of machinery (mobile plant or gin machinery) where greater | |
Educational Services (Schools) General Staff Award 2010 |
A.2.6 Level 6 An employee at this level performs work above and beyond the skills of an employee at Level 5. … (e) Typical activities (i) Preschool/childcare services grade 5 • Co-ordinating operations, | |
Food, Beverage and Tobacco Manufacturing Award 2010 |
A.2.1 Level 1 (78% relativity to the tradesperson) (b) Competencies An employee at Level 1 performs general duties essentially of a manual nature, and: … (iii) is undertaking up to 38 hours’ induction training which may include information on the enterprise, conditions of employment, introduction to supervisors and fellow workers, training and career path opportunities, plant layout, work and documentation procedures, | |
Gardening and Landscaping Services Award 2010 |
A.1.2 An employee at this level is undertaking training for a period of not more than three months which may include information on the workplace, conditions of employment, introduction to supervisors and fellow workers, training and career path opportunities, workplace layout, work and documentation procedures, work health and safety | |
Graphic Arts, Printing and Publishing Award 2010 |
23. Refreshment entitlement 23.1 A reasonable opportunity is to be provided by the employer for each employee to pause to acquire a refreshment during the first half of the day or shift, at a time specified by the employer, subject to: … (d) maintenance of high standards of … Schedule A—Classification Definitions A.2 Level 2 Employees at this level perform work above the skills of an employee at level 1 to the level of their competence, skill and training. • understanding and applying … Schedule A—Classification Definitions A.8 Level 8 Employees at this level perform work above the skills of an employee at level 7 to the level of their competence, skill and training. An employee at this level may have completed a trade certificate, AQF Certificate Level IV or equivalent training. • participating in, developing and implementing appropriate … | |
Higher Education Industry—General Staff—Award 2010 |
A.2.1 Higher Education Worker Level 1 (HEW 1) (a) Training level or qualifications Employees at the base of this level would not be required to have formal qualifications or work experience upon engagement. Employees engaged at the base of this level will be provided with structured on the job training in addition to up to 38 hours of induction which must provide information on the higher education institution, conditions of employment, training to be made available and consequent career path opportunities, physical layout of the institution/work areas, introduction to fellow workers and supervisors, work and documentation procedures, | |
Horticulture Award 2010 |
Schedule A—Classification Definitions A.1 Level 1 A.1.2 General description An employee at this level: • undertakes induction training which may include information on the enterprise, conditions of employment, introduction to supervisors and fellow workers, training and career opportunities, plant layout, work and documentation procedures, …
A.2 Level 2 employee A.2.2 General description An employee at this level: • receives training in … A.3 Level 3 employee A.3.2 General description An employee at this level: • receives training in … A.4 Level 4 employee A.4.2 General description An employee at this level: • monitors the application of …
| |
Joinery and Building Trades Award 2010 |
A.1.1 Level 1 [relativity to Level 5—78%] (a) An employee at this level will undertake up to 38 hours induction training which may include information on the company, conditions of employment, introduction to supervisors and fellow workers, training and career path opportunities, plant layout, work and documentation procedures, … | |
Live Performance Award 2010 |
A.1.1 Production and Support Staff Level 1 … (b) The induction training may include information on the enterprise or production, conditions of employment, introduction of supervisors and fellow workers, training and career path opportunities, venue/workshop/plant layout, work and documentation procedures, basic theatre terminology and etiquette, | |
Manufacturing and Associated Industries and Occupations Award 2010 |
A.3.3 Wage Group: C14 (a) Engineering/Manufacturing Employee—Level I (i) An Engineering/Manufacturing Employee—Level I is an employee who is undertaking up to 38 hours induction training which may include information on the enterprise, conditions of employment, introduction to supervisors and fellow workers, training and career path opportunities, plant layout, work and documentation procedures, … A.3.13 Wage Group: C4 (a) Engineering Associate/Laboratory Technical Officer—Level I (i) An Engineering Associate/Laboratory Technical Officer —Level I means an employee who works above and beyond a technician at the C5 level and who has completed the minimum training requirements specified in clause A.2.1 of Schedule A or equivalent and is engaged in: • making of major design drawings or graphics or performing technical duties in a specific field of engineering, laboratory or scientific practice such as research design, testing, manufacture, assembly, construction, operation, diagnostics and maintenance of equipment facilities or products, including computer software, quality processes, … A.3.15 Wage Group: C2 (b) Principal Engineering Supervisor/Trainer/Coordinator (i) A Principal Engineering Supervisor/Trainer/Coordinator means a Supervisor/Trainer/Coordinator who has completed a national advanced diploma or equivalent of which at least 50% of the competencies are in supervision/training and who when engaged at this level: • possesses a sound knowledge of | |
Nursery Award 2010 |
9.2 Ordinary hours of work (c) The ordinary hours of work will not exceed eight hours on any day, provided that by arrangement between an employer and an employee ordinary working hours greater than eight but not exceeding 10 on any day may be worked subject to: (i) the employer and employee concerned being guided by relevant … | |
Pastoral Award 2010 |
28.2 Piggery attendant level 1 (PA1) (a) A piggery attendant level 1 (PA1) is: • an employee undertaking up to 38 hours’ induction training which may include information on the enterprise, conditions of employment, introduction to supervisors and fellow workers, training and career path opportunities, farm layout, production program, work and record keeping procedures and … Parties have already agreed to following changes, these changes made been made to the latest exposure draft: 23.2 Farm and livestock hand level 2 (FLH2) An employee at this level includes: (b) Feedlot employee grade 1 with more than three months’ experience in the industry who: • carry out workplace 23.4 Farm and livestock hand level 4 (FLH4) An employee at this level includes: (a) Feedlot employee level 2 who: • carry out workplace 23.6 Farm and livestock hand level 6 (FLH6) • carry out workplace 23.7 Farm and livestock hand level 7 (FLH7) • carry out workplace | |
Plumbing and Fire Sprinklers Award 2010 |
20.6 Wage-related allowances—Conditions for payment of allowances and additional payments required … (d) Asbestos materials
A.3.1 Work levels … (g) Plumbing and mechanical services tradesperson/Sprinkler fitter tradesperson Level 2 … ● has knowledge of | |
Quarrying Award 2010 |
Please note: this exposure draft is renamed as the Cement, Lime & Quarrying award D.2 Core competencies—cement and lime industry (g) Basic Elements: (i) working safely and follow … | |
Racing Industry Ground Maintenance Award 2010 |
A.5 Trackwork and Pool Supervisor … (c) ensuring the observance of the training track rules and regulations, with particular emphasis on … A.7 Management Employee Level 2 An employee appointed to this level reports directly to the Committee of Management and undertakes three or more of the following duties: … (e) responsible for all | |
Registered and Licensed Clubs Award 2010 |
A.9.6 Maintenance and horticultural management level 2 means employee appointed to this level who reports directly to the Committee of Management and undertakes three or more of the following duties: … (e) responsible for all | |
Road Transport and Distribution Award 2010 |
A.3.1 Skills/Duties … (g) In addition to the above, may be responsible for the proper application and maintenance of appropriate | |
Social, Community, Home Care and Disability Services Industry Award 2010 |
A.5 Social and community services employee level 5 A.5.2 Responsibilities To contribute to the operational objectives of the work area, a position at this level may include some of the following: (i) monitor and interpret legislation, regulations and other agreements relating to B.3 Crisis accommodation employee level 3 B.3.2 Responsibilities To contribute to the operational objectives of the work area, a position at this level may include some of the following: … (h) monitor and interpret legislation, regulations and other agreements relating to D.5 Home care employee level 5 D.5.1 Accountability and extent of authority … (d) Employees with co-ordination responsibilities are also required to ensure that all employees under their direction are trained in safe working practices and in the safe operation of equipment and are made aware of all … D.5.4 Management skills (b) The position requires an understanding of and ability to implement basic personnel policies and practices including those related to equal employment opportunity, | |
Sugar Industry Award 2010 |
B.4.2 Wage Group: C14 (a) Engineering/production employee level I (i) An engineering/production employee level I is an employee who is undertaking up to 38 hours induction training which may include information on the enterprise, conditions of employment, introduction to supervisors and fellow workers, training and career path opportunities, plant layout, work and documentation procedures, | |
Supported Employment Services Award 2010 |
A.1.1 An employee engaged in this grade will undertake up to 38 hours induction training which may include information on the employer’s business, conditions of employment, introduction to supervisors and fellow employees, training and career path opportunities, worksite layout, work and documentation procedures, | |
Telecommunications Services Award 2010 |
A.4.2 Telecommunications Technical Employee … (c) Telecommunications Technical Employee (Customer Access Network) (ii) Indicative tasks The following tasks are indicative of those performed by an employee at this level: • follow … A.4.4 Advanced Telecommunications Technician … (c) Advanced Telecommunications Technician (Engineering) (ii) Indicative tasks The following tasks are indicative of those performed by an employee at this level: • follow … | |
Textile, Clothing, Footwear and Associated Industries Award 2010 |
A.1 Trainee Training for new entrants will be determined in accordance with the needs of the enterprise, but will involve instruction aimed at assisting trainees to achieve the range of competencies required at Skill Level 1, including: • the knowledge and skills required to apply relevant … A.6 Skill Level 5 Employees at this level exercise the skills necessary to be graded at Skill Level 4 and have a comprehensive knowledge of enterprise products and processes and are principally engaged in specialist tasks. • exercise the skills associated with Skill Level 4 and perform one or more of the following Team Leader activities: implement and monitor … | |
Timber Industry Award 2010 |
A.1 Level 1 (relativity 78%) A.1.1 General … (d) Induction training Induction training will include the following: (i) basic A.2.1 General An employee at this level performs work above and beyond the skills of a Level 1 employee and is competent to perform work within the scope of this level. … (d) General description of knowledge required in addition to that outlined in Level 1: (iv) awareness of A.5.3 Harvesting, milling and processing, Manufacturing or Merchandising employee Level 5 … (d) General description of knowledge required (vi) knowledge of B.1 Timber furniture production employee, Level 1 (relativity 78%) A Timber furniture production employee, Level 1 is an employee new to the industry who is undertaking up to three months’ induction and skill development consistent with national competency standards to prepare the employee for a productive role in the industry. The induction and skill development will include information on the enterprise, conditions of employment, introduction to supervisors, fellow employees, machinery and work processes of the enterprise, information on training and career opportunities, plant layout, work and documentation procedures, basic C.1 Indicative tasks/skills Employees engaged in the classifications contained in this Schedule will work to the level of their skills, competence and training and will perform work within the scope of their level as follows: C.1.1 Level 1 (relativity 85%) Employee undertakes induction training sufficient to allow the employee to participate in work training. Can undertake tasks under direct supervision and to the level provided in the induction training. … • … C.1.6 Level 6 (relativity 105%) … • Observes … C.1.7 Level 7 (relativity 110%) … • Carries out risk assessments, rectifies identified hazards, applies … C.1.8 Level 8 (relativity 115%) … • Applies … C.1.9 Level 9 (relativity 120%) … • Can establish safe working procedures and systems and participates in the establishment of | |
Vehicle Manufacturing, Repair, Services and Retail Award 2010 |
This award is subject to amendments as provided in Full Bench Decision [2016] FWCFB 4418 , which may impact the award in which the following changes are made. A.1 Vehicle industry RS&R—employee—Level 1 R1 (entry) An employee at Level 1 is an employee who has undertaken little or no formal or informal training. A Level 1 employee may be undertaking up to 38 hours of induction training. The induction training may include information on the enterprise, conditions of employment, introduction to supervisors and fellow workers, training and career path opportunities, plant layout, work and documentation procedures, B.1 V1—Vehicle industry/production employee Level 1 B.1.1 A Vehicle industry/production employee—Level 1 is an employee undertaking up to 38 hours’ induction training which may include information on the enterprise, conditions of employment, introduction to supervisors and fellow workers, training and career path opportunities, plant layout, work and documentation procedures, … B.11 V11—Vehicle industry engineering associate—Level I B.11.1 A Vehicle industry engineering associate—Level I means an employee who works above and beyond a technician at Level V10 and has successfully completed third year part-time (or 22 modules) of an Advanced Diploma or equivalent and is engaged in: (a) making of major design drawings or graphics or performing technical duties in a specific field of engineering, laboratory or scientific practice such as research design, testing, manufacture, assembly, construction, operation, diagnostics and maintenance or equipment facilities or products, including computer software, quality processes, … B.13 V13—Vehicle industry leading technical officer & Principal engineering trainer/supervisor/co-ordinator B.13.1 …. (a) Principal engineering trainer/supervisor/co-ordinator (i) A Vehicle industry principal trainer/supervisor/co-ordinator means a trainer/supervisor/co-ordinator who has completed an Advanced Diploma of which 15 modules are supervision/training modules or equivalent and who when engaged in this level: • possesses a sound knowledge of |
Awards that have been identified that may have an issue with the interaction between the annual leave loading and the penalty rates provisions in the exposure draft
Aboriginal Community Controlled Health Services Award 2010
Aged Care Award 2010
Airport Employees Award 2010
Animal Care and Veterinary Services Award 2010
Asphalt Industry Award 2010
Banking, Finance and Insurance Award 2010
Black Coal Mining Industry Award 2010
Building and Construction General On-site Award 2010
Business Equipment Award 2010
Car Parking Award 2010
Cement and Lime Award 2010
Cleaning Services Award 2010
Clerks - Private Sector Award 2010
Coal Export Terminals Award 2010
Concrete Products Award 2010
Contract Call Centres Award 2010
Dry Cleaning and Laundry Industry Award 2010
Educational Services (Post-Secondary Education) Award 2010
Educational Services (Schools) General Staff Award 2010
Educational Services (Teachers) Award 2010
Electrical Power Industry Award 2010
Electrical, Electronic and Communications Contracting Award 2010
Fast Food Industry Award 2010
Food, Beverage and Tobacco Manufacturing Award 2010
Gas Industry Award 2010
General Retail Industry Award 2010
Graphic Arts, Printing and Publishing Award 2010
Hair and Beauty Industry Award 2010
Health Professionals and Support Services Award 2010
Higher Education Industry-General Staff-Award 2010
Joinery and Building Trades Award 2010
Legal Services Award 2010
Manufacturing and Associated Industries and Occupations Award 2010
Meat Industry Award 2010
Medical Practitioners Award 2010
Miscellaneous Award 2010
Mobile Crane Hiring Award 2010
Nurses Award 2010
Pastoral Award 2010
Pest Control Industry Award 2010
Pharmaceutical Industry Award 2010
Pharmacy Industry Award 2010
Poultry Processing Award 2010
Premixed Concrete Award 2010
Quarrying Award 2010
Road Transport and Distribution Award 2010
Seafood Processing Award 2010
Social, Community, Home Care and Disability Services Industry Award 2010
Storage Services and Wholesale Award 2010
Sugar Industry Award 2010
Telecommunications Services Award 2010
Textile, Clothing, Footwear and Associated Industries Award 2010
Timber Industry Award 2010
Vehicle Manufacturing, Repair, Services and Retail Award 2010
Waste Management Award 2010
Wine Industry Award 2010
Attachment C– 80 modern awards containing a shutdown provision
1. Aboriginal Community Controlled Health Services Award 2010 (clause 26.3)
2. Aircraft Cabin Crew Award 2010 (clause 25.4)
3. Airline Operations–Ground Staff Award 2010 (clause 34.9)
4. Alpine Resorts Award 2010 (clause 26.3)
5. Aluminium Industry Award 2010 (clause 22.5)
6. Ambulance and Patient Transport Industry Award 2010 (clause 30.12)
7. Animal Care and Veterinary Services Award 2010 (clause 26.5)
8. Aquaculture Industry Award 2010 (clause 23.3)
9. Asphalt Industry Award 2010 (clause 25.4)
10. Banking, Finance and Insurance Award 2010 (clause 24.5)
11. Broadcasting and Recorded Entertainment Award 2010 (clause 23.4)
12. Building and Construction General On-site Award 2010 (clause 38.3)
13. Business Equipment Award 2010 (clause 31.4)
14. Car Parking Award 2010 (clause 25.4)
15. Cemetery Industry Award 2010 (clause 24.3)
16. Cement and Lime Award 2010 (clause 24.4)
17. Children’s Services Award 2010 (clause 24.4)
18. Cleaning Services Award 2010 (clause 29.6)
19. Clerks—Private Sector Award 2010 (clause 29.5)
20. Coal Export Terminals Award 2010 (clause 19.7)
21. Commercial Sales Award 2010 (clause 24.5)
22. Concrete Products Award 2010 (clause 26.4)
23. Contract Call Centres Award 2010 (clause 27.9)
24. Educational Services (Post-Secondary Education) Award 2010 (clause 25.6)
25. Electrical Power Industry Award 2010 (clause 27.8)
26. Electrical, Electronic and Communications Contracting Award 2010 (clause 28.5)
27. Food, Beverage and Tobacco Manufacturing Award 2010 (clause 34.11)
28. Gardening and Landscaping Services Award 2010 (clause 24.9)
29. Gas Industry Award 2010 (clause 25.3)
30. General Retail Industry Award 2010 (clause 32.5)
31. Graphic Arts, Printing and Publishing Award 2010 (clause 37.12)
32. Hair and Beauty Industry Award 2010 (clause 33.5)
33. Health Professionals and Support Services Award 2010 (clause 31.4)
34. Higher Education Industry—Academic Staff—Award 2010 (clause 27.2)
35. Higher Education Industry—General Staff—Award 2010 (clause 30.4)
36. Horse and Greyhound Training Award 2010 (clause 23.3)
37. Hospitality Industry (General) Award 2010 (clause 34.3)
38. Hydrocarbons Industry (Upstream) Award 2010 (clause 27.7)
39. Joinery and Building Trades Award 2010 (clause 32.9)
40. Journalists Published Media Award 2010 (clause 24.8)
41. Legal Services Award 2010 (clause 35.6)
42. Local Government Industry Award 2010 (clause 25.5)
43. Manufacturing and Associated Industries and Occupations Award 2010 (clause 41.10)
44. Meat Industry Award 2010 (clause 37.8)
45. Mining Industry Award 2010 (clause 23.6)
46. Mobile Crane Hiring Award 2010 (clause 25.5)
47. Miscellaneous Award 2010 (clause 23.4)
48. Nursery Award 2010 (clause 27.12)
49. Nurses Award 2010 (clause 31.9)
50. Oil Refining and Manufacturing Award 2010 (clause 26.6)
51. Pest Control Industry Award 2010 (clause 24.9)
52. Premixed Concrete Award 2010 (clause 24.4)
53. Pharmaceutical Industry Award 2010 (clause 26.10)
54. Plumbing and Fire Sprinklers Award 2010 (clause 34.3)
55. Poultry Processing Award 2010 (clause 27.9)
56. Premixed Concrete Award 2010 (clause 24.4)
57. Professional Employees Award 2010 (clause 19.4)
58. Quarrying Award 2010 (clause 29.4)
59. Racing Clubs Events Award 2010 (clause 30.3)
60. Racing Industry Ground Maintenance Award 2010 (clause 24.2)
61. Real Estate Industry Award 2010 (clause 25.2(c))
62. Registered and Licensed Clubs Award 2010 (clause 30.4)
63. Restaurant Industry Award 2010 (clause 35.3)
64. Road Transport (Long Distance Operations) Award 2010 (clause 23.8)
65. Road Transport and Distribution Award 2010 (clause 29.7)
66. Salt Industry Award 2010 (clause 25.6)
67. Seafood Processing Award 2010 (clause 27.11)
68. Security Services Industry Award 2010 (clause 24.9)
69. Silviculture Award 2010 (clause 29.3)
70. Storage Services and Wholesale Award 2010 (clause 26.6)
71. Sugar Industry Award 2010 (clause 33.5)
72. Supported Employment Services Award 2010 (clause 22.3)
73. Surveying Award 2010 (clause 24.3)
74. Telecommunications Services Award 2010 (clause 23.9)
75. Textile, Clothing, Footwear and Associated Industries Award 2010 (clause 41.7)
76. Timber Industry Award 2010 (clause 33.11)
77. Vehicle Manufacturing, Repair, Services and Retail Award 2010 (clause 29.12)
78. Water Industry Award 2010 (clause 27.4)
79. Wine Industry Award 2010 (clause 31.9)
80. Wool Storage, Sampling and Testing Award 2010 (clause 26.3)
Attachment D – Shutdown provision model clause
‘XX.XX Shutdown
(a) Clause XX.XX applies if an employer intends to shutdown all or part of its operation for a particular period (temporary shutdown period) and wishes to require affected employees to take leave during that period.
(b) The employer must give the affected employees 28 days’ written notice of a temporary shutdown period, or any shorter period agreed between them and the employer.
(c) The employer must give written notice of a temporary shutdown period to any employee who is engaged after the notice is given under paragraph (b) and who will be affected by that period, as soon as reasonable practicable after the employee is engaged.
(d) The following applies to any affected employee during a temporary shutdown period:
(i) the employee may elect to cover the temporary shutdown period by doing one, or a combination of 2 or more, of the following:
• taking paid annual leave if the employee has accrued an entitlement to such leave;
• taking leave without pay;
• taking annual leave in advance in accordance with an agreement under clause XX.XX;
(ii) if the employee does not make an election under subparagraph (i) that covers the whole of the temporary shutdown period, then the employer may direct the employee to take a period of paid annual leave to which the employee has accrued an entitlement.
(e) A direction by the employer under clause XX.XX(d)(ii):
(i) must be in writing; and
(ii) must be reasonable.
(f) The employee must take paid annual leave in accordance with a direction under clause XX.XX(d)(ii).
(g) In determining the amount of paid annual leave to which an employee has accrued an entitlement, any period of paid annual leave taken in advance by the employee, in accordance with an agreement under clause XX.XX, to which an entitlement has not been accrued is to be taken into account.
(h) If a temporary shutdown period includes a day or part-day that is a public holiday and would have been a working day for the employee had the employee not been on leave in accordance with clause XX.XX, the employee is taken not to be on leave on that day or part-day.
(i) Clauses XX.XX to XX.XX do not apply to a period of annual leave that an employee is required to take during a temporary shutdown period in accordance with clause XX.XX.’
1 [2017] FWCFB 344; [2017] FWCFB 1612; [2018] FWCFB 3337; [2018] FWCFB 5504; [2018] FWCFB 6803.
2 [2018] FWCFB 5553; [2018] FWCFB 6980
3 [2017] FWCFB 5397; [2018] FWCFB 2559; [2018] FWCFB 4496, [2018] FWCFB 6709
4 [2018] FWCFB 2710; [2018] FWCFB 4468; [2018] FWCFB 6711.
5 [2018] FWCFB 6850; [2019] FWCFB 276
7 [2018] FWCFB 6781 A decision finalising the remaining issues in the Cleaning award will be issued in the coming weeks
9 [2017] FWCFB 4447 at [42].
13 [2017] FWCFB 4419; [2018] FWCFB 3009; [2018] FWCFB 4177; [2018] FWCFB 4704 and [2018] FWCFB 7447.
14 Revised sschedule of draft determinations.
16 [2017] FWCFB 4447 at Attachment E
18 [2018] FWC 1544 at [14] – [22].
20 Ai Group submissions – 23 September 2016, paragraphs 34 – 35.
21 [2017 FWCFB 3433 at [339]
22 [2017 FWCFB 3433 at 341 – 344.
24 [2017 FWCFB 3433 at [380].
26 [2017 FWCFB 3433 at [381] – [382].
27 [2017 FWCFB 3433 at [381] – [382].
29 Directions – substitution of public holidays 27 April 2018.
30 [2017] FWCFB 6884; [2018] FWC 1244.
36 Transcript – 7 September 2018 – PN26.
37 Transcript – 7 September 2018 – PN48.
38 Transcript – 7 September 2018 – PN15.
39 [2018] FWC 1544 at [14] – [22].
41 [2017] FWCFB 5536 at [582], [592]
42 [2017] FWCFB 5536 at [586]
43 Ai Group submission 20 February 2018 at page 21
48 [2016] FWCFB 6836 at [83].
49 [2016] FWCFB 6836 at [83].
51 [2017] FWCFB 959 at [34].
53 [2017] FWCFB 5394 at [76]; PR597595.
54 Construction, Forestry, Mining and Energy Union (CFMEU) submission October 2017 with the support of the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) and The Association of Professional Engineers, Scientists and Managers, Australia (APESMA).
55 CFMEU submission October 2017 at [10].
56 CFMEU submission October 2017 at [10].
57 [2017] FWCFB 5394 at [63]-[67].
58 [2017 FWCFB 3433 at [353] – [362].
59 [2017 FWCFB 3433 at Attachment B
60 ASSA Submission, 4 August 2016.
Printed by authority of the Commonwealth Government Printer
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