| [2019] FWCFB 276 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.156—4 yearly review of modern awards
4 yearly review of modern awards—Plain language re-drafting—General Retail Industry Award 2010
(AM2016/15)
JUSTICE ROSS, PRESIDENT |
MELBOURNE, 18 JANUARY 2019 |
4 yearly review of modern awards – plain language re-drafting – General Retail Industry Award 2010.
[1] This decision finalises outstanding items in the plain language re-drafting of the General Retail Industry Award 2010 (the Retail Award).
[2] Conferences were held on 19 September 2017, 26 October 2017, 21 June 2018 and 27 September 2018 to discuss items raised by parties in relation to the plain language exposure draft of the Retail Award (the Retail PLED). A report was issued on 19 September 2017 1 setting out the status of items following the September 2017 conference and statements regarding the outcomes of the subsequent conferences were issued on 27 October 2017,2 23 July 20183 and 1 October 2018.4
[3] A decision published on 8 November 2018 5 resolved the outstanding items; however, interested parties were invited to review the overtime clause and to make further submissions. It was also noted that the Shop, Distributive and Allied Employees Association (the SDA) has reserved its position to review the Retail PLED in its entirety,6 considering that changes may arise from the Overtime for Casuals common issue. A revised Retail PLED (the revised PLED) was published on 20 November 2018.7
[4] Correspondence and submissions were received from the following parties in relation to clause 24—Overtime:
• the National Retail Association (the NRA); 8 and
• Australian Business Industrial and NSW Business Chamber (ABI); 9 and
• the SDA. 10
1. Clause 24—Overtime rate
[5] The SDA noted that it has reviewed the clause and has no issues to raise in relation to it.
(i) Clause 24.2—Payment of overtime
[6] ABI submits that, in addition to typographical errors to be remedied in clause 24.2, clause 24.2(a) of the revised PLED, as currently drafted, is unclear about what sort of rostering issue will cause overtime rates to be payable to an employee.
[7] Clause 29.2(a) of the Retail Award states:
“Hours worked in excess of the ordinary hours of work, outside the span of hours (excluding shiftwork), or roster conditions prescribed in clauses 27 and 28 are to be paid at time and a half for the first three hours and double time thereafter.”
[8] Clause 24.2(a) of the revised PLED states:
“An employer must pay an employee for hours worked in excess of the ordinary hours of work or outside the span of hours (excluding shiftwork) or roster conditions prescribed in clause 15—Ordinary hours of work at the overtime rate specified in column 2 of Table 10—Overtime rates.”
[9] The NRA submits that, apart from some grammatical errors to be corrected in clause 24.2, it has no concerns with the clause in its current form.
[10] We agree with ABI that the current clause 24.2(a) could cause confusion and that additional wording would clarify the meaning of the clause. We propose to amend the clause to read as follows:
“An employer must pay an 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 Table 10—Overtime rates.”
(ii) Clause 24.3—Overtime rate
[11] The NRA submits that clause 24.3 of the revised PLED is substantially redundant, as clauses 24.3(a) and (b) merely echo the language of clauses 24.2(a), (b) and (c). The NRA submits that clause 24 could be streamlined by deleting clauses 24.3(a) and (b), incorporating Table 10 into clause 24.2 and re-numbering the remainder of clause 24 accordingly.
[12] We agree with the NRA. Clause 24.3 substantially repeats the content of clauses 24.2(a) and (b). It is our provisional view that clause 24.3 should be deleted and clause 24.2 should be amended to read as follows:
(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.
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).
Column 1
|
Column 2
|
Column 3
|
Monday to Saturday—first 3 hours |
150% |
175% |
Monday to Saturday—after 3 hours |
200% |
225% |
Sunday |
200% |
225% |
Public holiday |
250% |
275% |
NOTE: Schedule B—Summary of Hourly Rates sets out the hourly overtime rate for all employee classifications according to when overtime is worked.”
(iii) Clause 24.4—Time off instead of payment for overtime
[13] The NRA also raised an additional issue in relation to clause 24.4 of the revised PLED. It proposes that clause 24.4(g) be amended to add a reference to requests for flexible working arrangements under the relevant award provision and that a cross-reference could be inserted after the words “section 65 of the Act”. The NRA submits that clause 24.4 replicates clause 29.3 of the Retail Award. Clause 24.4(g) refers to requests for flexible working arrangements under section 65 of the Fair Work Act 2009 (Cth). On 1 December 2018 a clause relating to requests for flexible working arrangements was inserted in the Retail Award as clause 31A 11 and the clause will be inserted in the Retail PLED as clause 6A.
[14] We agree that clause 24.4(g) of the revised PLED should be amended to include a reference to requests for flexible working arrangements made under clause 6A. It is our provisional view that clause 24.4(g) should be amended to read as follows:
“(g) An employee may, under section 65 of the Act or clause 6A of this Award, 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: If an employee makes a request under section 65 of the Act or clause 6A of this Award for a change in working arrangements, the employer may only refuse that request on reasonable business grounds (see section 65(5) of the Act).”
[15] Clause 24.4 will also be renumbered as 24.3 following the amendments outlined above.
Next steps
[16] Interested parties are invited to make submissions in relation to the provisional views expressed at paragraphs [12] and [14] by 4.00 pm, Friday 8 February 2019.
[17] In the absence of a request for an oral hearing, any outstanding matters will be determined on the papers. Requests for an oral hearing are to be directed to [email protected] by no later than by 4.00 pm, Friday 8 February 2019.
[18] The process outlined above will finalise the plain language re-drafting of the Retail Award subject to the determination of any substantive claims to vary the award and the finalisation of a number of common issues affecting all, or most, modern awards.
[19] All material should be sent to [email protected].
PRESIDENT
Printed by authority of the Commonwealth Government Printer
<PR703922>
6 [2018] FWCFB 6075 at para [61].
7 Revised Retail PLED, 20 November 2018.
8 NRA submission, 22 November 2018.
9 ABI submission, 28 November 2018.
10 SDA correspondence, 28 November 2018.
11 See [2018] FWCFB 6863 and PR701395