| [2019] FWCFB 3626 |
| 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, 3 JUNE 2019 |
4 yearly review of modern awards – plain language re-drafting – General Retail Industry Award 2010.
[1] This decision deals with the outstanding issues relating to the overtime provisions in the revised plain language exposure draft (the revised PLED) of the General Retail Industry Award 2010 (the current award). The revised PLED was published on 20 November 2018. 1 The outstanding issues are:
1. amending proposed clause 24.2 to incorporate clause 24.3 and renumbering the remaining subclauses accordingly; and
2. including in proposed clause 24.4 a reference to the provisions in revised PLED relating to requests for flexible working arrangements.
[2] A decision was published on 18 January 2019 2 in which we expressed provisional views about issues concerning clause 24—Overtime, of the revised PLED. Interested parties were invited to review the proposed re-drafted clauses at [12] and [14] of the January 2019 decision and to make submissions. 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 and
• the Shop, Distributive and Allied Employees Association (the SDA). 6
[3] These issues, along with a new issue raised by NANA, were dealt with in a Statement issued on 28 February 2019 7. Proposed amendments to clause 24 were set out at [7], [14] and [26] of the statement, for the parties to consider. The SDA requested a hearing on the matter and a conference was held on 3 April 20198 to deal with the outstanding issues. The conference was attended by representatives of the SDA and ABI.
[4] At the conclusion of the conference interested parties were invited to file submissions relating to the proposed re-drafted clauses at [7], [14] and [26] of the February 2019 statement, along with matters arising out of the conference.
[5] Submissions were received from:
• ABI; 9
• NANA; 10
• the SDA; 11
[6] At [12] of the January 2019 decision we set out the proposed amended clauses 24.2 and 24.3 of the revised PLED. At [7] of the February 2019 statement we set out clause 24.2(b) as proposed by the SDA, which sought to avoid a substantive change to the application of overtime for part-time employees. At [14] of the February 2019 statement we set out clause 24.2(c) as proposed by the NRA in response to the additional issue raised by NANA and at [16] we expressed the provisional view that the amendment at [14] should be made to clause 24.2(c)(ii).
[7] The proposed clause 24.2(a), (b) and (c), including the SDA’s and the NRA’s amendment, would read 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 the table in clause 24.2(e).Table 10—Overtime rates.
(b) An employer must pay a part-time employee:
(i) 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 the table in 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 the table in clause 24.2(e). Table 10—Overtime rates.
(c) An employer must pay a casual employee at the rate specified in column 3 of the table in 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), 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.
[8] At the April 2019 conference the SDA confirmed their position that casual employees are dealt with clause 29.2(c) of the current award but, in order for the revised PLED to be consistent with the current award, the SDA proposed that clause 24.2(a) should apply to full-time, part-time and casuals or “an employee”. The SDA noted their view that clause 29.2(a) of the current award should apply to casuals, but acknowledge that there is not a consent position on that matter. 12 Should the SDA want to pursue that issue, they will need to make a separate application.
[9] ABI submit that the insertion of the words “full-time” to the proposed clause 24.2(a) may result in a substantive change to the current award.
[10] ABI submit that both the current award and the PLED contain clauses which specify that provisions of the award relevant to full-time employees will apply to part-time employees (clause 12.8 of the current award and clause 10.3 of the PLED) and the proposed change would mean that a part-time employee would not be entitled to a payment at overtime rates in the same circumstances as a full-time employee, such as where those hours fell outside the span of hours. ABI did not support the wording proposed by the SDA at clause 24.2(b), as set out at paragraph [6] of the February 2019 Statement, as that potentially introduces complexity with respect to an employee’s ordinary hours of work for the purpose of the clause. ABI submit that one solution would be to delete the words “full-time” from clause 24.2(a) and revert to the previous drafting from the revised PLED. ABI submit that if the Full Bench is minded to include the words, the provision should be re-drafted 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 the table in clause 24.2(e).Table 10—Overtime rates.
(b) An employer must pay a part-time employee for:
(i) hours worked in excess of the agreed hours in clause 10.5, or as varied under clause 10.6;
(ii) hours worked in excess of 38 hours per week;
(iii) hours worked outside the span of hours (excluding shiftwork); or
(iv) outside the roster conditions prescribed in clause 15—Ordinary hours of work;
at the overtime rate specified in column 2 of the table in clause 24.2(e). Table 10—Overtime rates.
[11] In their submission on 1 May 2019, the SDA support ABI’s proposed solution to revert to the previous PLED drafting, as published on 20 November 2018, in order to avoid a substantive change. The SDA also submit that the alternative drafting proposed by ABI should be rejected, on the basis that it is inconsistent with the current award clause 29.2(a) and may also result in a substantive change.
[12] The SDA submit that the NRA, a major employer association specifically covering the retail industry, noted in submissions 13 that they had no concerns with the previous PLED drafting.
[13] We agree that the proposed redrafting may have unintended consequences. We also agree that the drafting of the clause in the previous PLED is a better resolution to these issues and so we have decided to revert this drafting.
[14] Additionally, in relation to the issue raised by NANA in relation to clause 24.2(c), at [16] of the February 2019 statement we expressed the provisional view that the amendment as suggested by the NRA be made to clause 24.2(c)(ii).
[15] NANA agreed with the remedy proposed by the NRA to the issue that they had raised. NANA also noted that the SDA recognised the problem that they had raised and also supported the remedy of the NRA. ABI made no submissions on the provisional view, nor did the SDA. We confirm that clause 24.2(c)(ii) will be amended to include reference to clause 15.2 of the revised PLED.
[16] We propose to insert the following clause into the revised PLED in place of clauses 24.2 and 24.3 and the subsequent clauses will be renumbered accordingly:
“24.2 Payment of overtime
(a) 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.
(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 Table 10—Overtime rates.
(c) An employer must pay a casual employee at the overtime 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.
(d) Overtime is calculated on a daily basis.
(e) Overtime rate
An employer must pay an employee for overtime worked in accordance with clause 24.2 at the following rates:
Table 10—Overtime rates
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 of Pay sets out the hourly overtime rate for all employee classifications according to when overtime is worked.”
[17] Interested parties will have until 4pm Wednesday 12 June 2019 to comment on the above clause. Absent any opposition we will insert the clause into the revised PLED in place of clauses 24.2 and 24.3 and renumber subsequent clauses accordingly.
[18] At [18] of the February 2019 statement we discussed our provisional view, that clause 24.3 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). The proposed clause is the same as clause 31A of the current award.
[19] ABI opposed our provisional view and submitted that the 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 submitted that the proposed amendment to clause 24.3 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.
[20] We accepted ABI’s submission and at [26] of the February 2019 statement we proposed a solution, by amending the note in clause 24.3(g) of the revised PLED to read as follows:
‘NOTE: Clause 6A contains additional provisions to section 65 of the Act relating to requests for flexible working arrangements. 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).’
[21] At the April 2019 conference the SDA proposed retaining the original note with the addition of the new proposed note so that it would read:
‘NOTE: Clause 6A contains additional provisions to section 65 of the Act relating to requests for flexible working arrangement. 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).’
[22] ABI did not oppose the amended wording as discussed at the conference.
[23] The SDA and NANA did not make any further submissions relating to clause 24.4.
[24] The note accompanying clause 24.4(g) of the revised PLED will be amended to read as follows:
‘NOTE: Clause 6A contains additional provisions to section 65 of the Act relating to requests for flexible working arrangement. 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).’
[25] Subject to the matter raised at [17] above, this decision finalises the plain language re-drafting of the current 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. A revised PLED incorporating the changes arising from this decision and recent variations to the current award will be published with this decision.
PRESIDENT
Printed by authority of the Commonwealth Government Printer
<PR708693>
1 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.
8 Transcript, 3 April 2019.
9 ABI submission, 11 April 2019.
10 NANA submission, 17 April 2019.
11 SDA submission in reply, 1 May 2019.
12 Transcript, 3 April 2019, [41] – [48].
13 NRA submission, 22 November 2018.