DECISION

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

4 yearly review of modern awards - Annualised Wage Arrangements
(AM2016/13)

Review of annualised wage arrangement provisions in modern awards.

Introduction

[1] This decision finalises, except for one matter, the review of annualised wage arrangement provisions in modern awards. In our last decision in the review issued on 27 February 2019 1 (2019 decision) we resolved a range of issues outstanding from our substantive decision in the review issued on 20 February 20182 (2018 decision) and directed interested parties to file:

(1) any evidence and submissions concerning whether any of the modern awards listed in paragraph [53] of the 2019 decision, other than the Clerks Award, the Legal Services Award or the Contract Call Centres Award, should be moved to Category 2, or whether any of the modern awards listed in paragraph [56] of the 2019 decision, not including the Pastoral Award and the Horticultural Award, should be moved to Category 1 (first direction);

(2) any submissions concerning whether the Health Professionals and Support Services Award 2010 (Health Professionals Award) should be varied to include Model Clause 3 or whether the application of the Australian Industry Group (Ai Group) in respect of this award should be dismissed (second direction); and

(3) any submissions concerning the need for transitional provisions consequent upon the adoption of the standard annualised wage arrangement provisions (third direction).

[2] The first direction concerned our provisional identification in the 2019 decision of the modern awards which should be varied to include “Model Clause 1” set out in paragraph [130] of the 2018 decision in place of existing annualised wage arrangement provisions, and those modern awards which should be varied to include “Model Clause 3” set out in paragraph [132] of the 2018 decision in place of the existing provisions. The second direction arose from the provisional view expressed in paragraph [59] of the 2019 decision that “Model Clause 3” should be included in the Health Professionals Award but be applicable to managerial and supervisory employees only.

Further evidence and submissions

[3] A number of interested parties filed submissions and, in one case, a statement of evidence following the directions made in the 2019 decision. In some cases the submissions were not responsive to the directions but raised issues which should have been raised, or had already been raised, following the 2018 decision. Nonetheless we will give consideration to all the matters raised in the submissions.

Australian Industry Group

[4] The Ai Group proposed a number of amendments to Model Clause 1 and 3. First, it proposed that in relation to the first sentence of clause X.2(c) of both model clauses, it should be amended to read: “The employer must keep a record of the starting and finishing times of work, and any unpaid breaks taken, of each employee subject to an annualised wage arrangement for the purpose of undertaking the comparison required by clause X.2(b)” (additional proposed words in bold). It also proposed that a note be added after the end of clause X.2(b) stating: “This clause only regulates award entitlements of employees who are paid an annualised wage under the provisions of this clause.” It submitted that these changes were necessary to clarify that the time to be recorded is work time as required by the employer, not any other time an employee may choose to spend in the workplace such as interacting with colleagues before the work day starts or after it ends.

[5] Second, the Ai Group proposed that the second sentence in clause X.2(c) of both model clauses should be amended to read: “This record must be signed by provided to the employee by the employer each pay period or roster cycle” (new words in bold and deleted words in strikeout). It submitted that a requirement to physically sign a record of hours worked would be inconsistent with the electronic pay records and payroll systems that the vast majority of businesses operate, and it would be sufficient for the employer to provide a record of the hours worked to the employee, which would give the employee an opportunity to express any disagreement with the record.

[6] Third, the Ai Group proposed that a new clause X.4 be added to both model clauses which would provide:

X.4 Scope of this clause

This clause only regulates award entitlements of employees who are paid an annualised wage under the provisions of this clause.

[7] The Ai Group submitted that that provision was necessary to ensure that the model clauses do not operate to invalidate or regulate any common law contractual arrangement that parties may implement which contain a “set-off” under which the rate of pay sets off other award or legislative requirements payable to the employee.

[8] In respect of the second direction, the Ai Group submitted that Model Clause 3 should be inserted into the Health Professionals Award for managerial and supervisory employees. In respect of the third direction, the Ai Group submitted that it would take some time for businesses to adjust their existing payroll systems and processes to comply with the record-keeping requirements in Model Clause 1 and Model Clause 3, and that accordingly the variations to introduce these provisions should take effect not earlier than 12 months after the terms of the final variations are determined by the Commission.

[9] The Ai Group did not make any submissions in response to the first direction.

Australian Business Industrial and the NSW Business Chamber Ltd (ABI)

[10] In response to the third direction ABI, like the Ai Group, submitted that it would take some time for employers to take the necessary steps to prepare for the introduction of the new annualised wage arrangement provisions. It identified a number of different approaches for the transition to the new provisions, but its preferred approach was that the new provisions should not become operative until 12 months after the clauses are inserted into the modern awards.

[11] ABI additionally submitted that the requirement in the second sentence of clause X.2(c) of Model Clause 1 for employees to physically sign records of hours and breaks was not consistent with contemporary electronic timekeeping processes. It proposed that the sentence be amended to read: “This record must be signed by the employee, or acknowledged as correct in writing (including by electronic means), each pay period or roster cycle.” We presume that ABI intends that a corresponding amendment be made to the second sentence of clause X.2(c) of Model Clause 3.

[12] ABI did not make any submissions in response to the first direction in the 2019 decision. In relation to the second direction, it did not oppose the position of the Ai Group.

Australian Hotels Association, Accommodation Association of Australia and the Motor Inn and Motel Accommodation Association (Hospitality Associations) 

[13] The Hospitality Associations submitted that the existing clause 27.2 of the Hospitality Industry (General) Award (Hospitality Award) should continue to apply in its current terms in respect of employees classified as Managerial Staff (Hotels), since it was structurally identical to clause 17.3(a) of the Registered and Licensed Clubs Award (Clubs Award). In respect of the third direction, it was submitted that extensive administrative adjustments would be required to implement the proposed provisions, and it was proposed that:

(1) only new annualised wage arrangements entered into on or after 1 January 2020 (or six months after the date of variation if later) would have to comply with the new provisions; and

(2) existing annualised wage arrangements would have to comply with the new provisions from the first anniversary of such arrangement falling on or after 1 January 2020 (or six months after the date of variation if later).

[14] The Hospitality Associations also submitted that the requirement to sign time and wages records did not take into account the prevalence of electronic time recording tools. The Hospitality Associations also proposed to make further submissions concerning the range of entitlements to be included in the new provisions once draft determinations were published.

Australian Chiropractors Association (ACA)

[15] In response to the second direction, the ACA submitted that no annualised wage arrangement provisions should be included in the Health Professionals Award, and that the Ai Group’s application in respect of this award should be dismissed. The ACA submitted that the reconciliation and record-keeping requirement of Model Clause 3 were unduly burdensome (particularly for small medical practices) and were not supported by any industry party.

Law Firms

[16] The Law Firms 3 submitted that because the introduction of Model Clause 1 into the Legal Services Award 2010 would require a fundamental shift in how remuneration for professional staff must be managed, the new provision should not become operative until 1 July 2020. In support of its position it filed a witness statement made by Nick Grant, the Director of Human Resources at K&L Gates. His statement set out the results of a survey concerning the use and administration of annualised salaries under the Legal Services Award conducted amongst 19 of the Law Firms. The relevant results of the survey were, in summary:

•  a large proportion of annualised salary arrangements were well in excess of minimum rates under the Legal Services Award and primarily determined by market demand;

•  only 10.53% of employees paid an annualised salary were always paid overtime loadings in addition to the salary; 57.89% were paid overtime only when an inordinate number of overtime hours were performed in a period; and 31.58% had other arrangements with respect to overtime;

•  at no firm were all employees required to complete timesheets; at 36.84% only casual staff completed timesheets, and at 42.11% only casual staff and part-time staff who worked additional hours or days were required to complete timesheets;

•  42.11% of firms said their human resources management systems did not have the capability to capture start and finish times and unpaid breaks; another 42.11% said potentially with upgrades and system reconfigurations; while 15.79% said they did not know; and

•  47.37% estimated that 12 months or more was required to implement systems to record start and finish times, while 42.11% said that 6-12 months was required.

Australian Services Union (ASU)

[17] The ASU submitted, in response to the third direction, that a six month transitional period would be sufficient to allow employers to adjust to the new provisions, and the proposal by the Law Firms and the Ai Group for longer transitional periods reflected an unnecessary continuation of relatively unregulated annualised wage arrangements.

[18] In response to the Ai Group’s proposed amendments to Model Clause 1 and Model Clause 3, the ASU submitted:

(1) The addition of the words “of work” and the proposed note was unnecessary and pedantic, since it was clear that clause X.2(c) was concerned with the times of starting and finishing work.

(2) The removal of the signature requirement removed any engagement or form of written agreement with the employee, and placed the onus on the employee to disagree with the record rather than there being a record for further scrutiny.

(3) The proposed new provision concerning the scope of the clause was unnecessary since it was obvious that the model clauses only regulated award entitlements.

Health Services Union (HSU)

[19] The HSU submitted that the application by the Ai Group for an annualised wages provision to be added to the Health Professionals Award should simply be dismissed. In the alternative, the HSU submitted that if it was decided to vary the award to add Model Clause 3, access to it should be confined to managers classified at Health Professional Level 4 under the award.

Consideration

[20] We will deal first with the amendments to Model Clause 1 and Model Clause 3 proposed by the Ai Group and ABI. In relation to the first amendment sought by the Ai Group, we accept the ASU submission that it should be clear that the first sentence in clause X.2(c) of each model clause is concerned with working hours. However, to remove any doubt, we will add the words “at work” as proposed by the Ai Group. We will not add the proposed note because we consider it is unnecessary.

[21] In relation to the second sentence of clause X.2(c), we accept the submissions made by the Ai Group, ABI and the Hospitality Associations that it may not be compatible with electronic pay and records systems to require an employee to physically sign each record of hours. We consider that the amendment proposed by ABI is preferable to that proposed by the Ai Group, in that it addresses the identified problem while retaining the requirement for the employee to acknowledge the accuracy of the record of hours. Accordingly the last sentence of clause X.2(c) will be modified to read: “This record must be signed by the employee, or acknowledged as correct in writing (including by electronic means) by the employee, each pay period or roster cycle.” This is consistent with the approach we determined to adopt with respect to the Pastoral Award 2010 and the Horticulture Award 2010 in paragraph [43] of the 2019 decision.

[22] We do not consider that the third amendment proposed by Ai Group is necessary. As we made clear in paragraph [102] of the 2018 decision, an employer is able to pay an employee to whom an award applies an annualised salary arrangement that compensates for or “buys out” various identified award entitlements without engaging with any annualised wage arrangement clause in that award and without there needing to be an annualised wage arrangement clause in that award, in accordance with the principles stated in Australia and New Zealand Banking Group Limited v Finance Sector Union of Australia 4 and Linkhill Pty Ltd v Director, Office of the Fair Work Building Industry Inspectorate.5 The model clauses do not seek to invalidate or regulate any such contractual arrangements.

[23] Model Clause 1 will therefore provide as follows:

X. Annualised wage arrangements

X.1 Annualised wage instead of award provisions

(a) An employer may pay a full-time employee an annualised wage in satisfaction, subject to clause X.1(c), of any or all of the following provisions of the award:

(i) clause X – Minimum weekly wages;

(ii) clause X – Allowances;

(iii) clause X – Overtime penalty rates

(iv) clause X – Weekend and other penalty rates; and 

(iv) clause X – Annual leave loading

(b) Where an annualised wage is paid the employer must advise the employee in writing, and keep a record of:

(i) the annualised wage that is payable;

(ii) which of the provisions of this award will be satisfied by payment of the annualised wage;

(iii) the method by which the annualised wage has been calculated, including specification of each separate component of the annualised wage and any overtime or penalty assumptions used in the calculation; and

(iv) the outer limit number of ordinary hours which would attract the payment of a penalty rate under the award and the outer limit number of overtime hours which the employee may be required to work in a pay period or roster cycle without being entitled to an amount in excess of the annualised wage in accordance with clause X.1(c).

(c) If in a pay period or roster cycle an employee works any hours in excess of either of the outer limit amounts specified pursuant to clause X.1(b)(iv), such hours will not be covered by the annualised wage and must separately be paid for in accordance with the applicable provisions of this award.

X.2 Annualised wage not to disadvantage employees

(a) The annualised wage must be no less than the amount the employee would have received under this award for the work performed over the year for which the wage is paid (or if the employment ceases earlier over such lesser period as has been worked).

(b) The employer must each 12 months from the commencement of the annualised wage arrangement or upon the termination of employment of the employee calculate the amount of remuneration that would have been payable to the employee under the provisions of this award over the relevant period and compare it to the amount of the annualised wage actually paid to the employee. Where the latter amount is less than the former amount, the employer shall pay the employee the amount of the shortfall within 14 days.

(c) The employer must keep a record of the starting and finishing times of work, and any unpaid breaks taken, of each employee subject to an annualised wage arrangement for the purpose of undertaking the comparison required by clause X.2(b). This record must be signed by the employee, or acknowledged as correct in writing (including by electronic means) by the employee, each pay period or roster cycle.

X.3 Base rate of pay for employees on annualised wage arrangements 

For the purposes of the NES, the base rate of pay of an employee receiving an annualised wage under this clause comprises the portion of the annualised wage equivalent to the relevant rate of pay in clause X—Minimum weekly wages and excludes any incentive-based payments, bonuses, loadings, monetary allowances, overtime and penalties.

[24] Model Clause 3 will be as follows:

X. Annualised wage arrangements

X.1 Annualised wage instead of award provisions

(a) An employer and a full-time employee may enter into a written agreement for the employee to be paid an annualised wage in satisfaction, subject to clause X.1(c), of any or all of the following provisions of the award:

(i) clause X – Minimum weekly wages;

(ii) clause X – Allowances;

(iii) clause X – Overtime penalty rates

(iv) clause X – Weekend and other penalty rates; and 

(iv) clause X – Annual leave loading

(b) Where a written agreement for an annualised wage agreement is entered into, the agreement must specify:

(i) the annualised wage that is payable;

(ii) which of the provisions of this award will be satisfied by payment of the annualised wage;

(iii) the method by which the annualised wage has been calculated, including specification of each separate component of the annualised wage and any overtime or penalty assumptions used in the calculation; and

(iv) the outer limit number of ordinary hours which would attract the payment of a penalty rate under the award and the outer limit number of overtime hours which the employee may be required to work in a pay period or roster cycle without being entitled to an amount in excess of the annualised wage in accordance with clause X.1(c).

(c) If in a pay period or roster cycle an employee works any hours in excess of either of the outer limit amounts specified in the agreement pursuant to clause X.1(b)(iv), such hours will not be covered by the annualised wage and must separately be paid for in accordance with the applicable provisions of this award.

(d) The employer must give the employee a copy of the agreement and keep the agreement as a time and wages record.

(e) The agreement may be terminated:

(i) by the employer or the employee giving 12 months’ notice of termination, in writing, to the other party and the agreement ceasing to operate at the end of the notice period; or 

(ii) at any time, by written agreement between the employer and the individual employee.

X.2 Annualised wage not to disadvantage employees

(a) The annualised wage must be no less than the amount the employee would have received under this award for the work performed over the year for which the wage is paid (or if the employment ceases or the agreement terminates earlier, over such lesser period as has been worked).

(b) The employer must each 12 months from the commencement of the annualised wage arrangement or, within any 12 month period upon the termination of employment of the employee or termination of the agreement, calculate the amount of remuneration that would have been payable to the employee under the provisions of this award over the relevant period and compare it to the amount of the annualised wage actually paid to the employee. Where the latter amount is less than the former amount, the employer shall pay the employee the amount of the shortfall within 14 days.

(c) The employer must keep a record of the starting and finishing times of work, and any unpaid breaks taken, of each employee subject to an annualised wage arrangement agreement for the purpose of undertaking the comparison required by clause X.2(b). This record must be signed by the employee, or acknowledged as correct in writing (including by electronic means) by the employee, each pay period or roster cycle.

X.3 Base rate of pay for employees on annualised wage arrangements 

For the purposes of the NES, the base rate of pay of an employee receiving an annualised wage under this clause comprises the portion of the annualised wage equivalent to the relevant rate of pay in clause X—Minimum weekly wages and excludes any incentive-based payments, bonuses, loadings, monetary allowances, overtime and penalties.

[25] As noted in paragraph [61] of the 2019 decision, clause X.1(a) of each model clause will need to be modified to contain the full range of award entitlements which may currently be encompassed in an annualised wage arrangement.

[26] There were no submissions in response to the first direction. Accordingly we confirm our provisional view that the existing annualised wage arrangement provisions in the following awards should be replaced by Model Clause 1:

Banking, Finance and Insurance Award 2010

Clerks - Private Sector Award 2010

Contract Call Centres Award 2010

Hydrocarbons Industry (Upstream) Award 2010

Legal Services Award 2010

Mining Industry Award 2010

Oil Refining and Manufacturing Award 2010 (clerical employees only)

Salt Industry Award 2010

Telecommunications Services Award 2010

Water Industry Award 2010

Wool Storage, Sampling and Testing Award 2010

[27] On the same basis, we also confirm our provisional view that existing annualised wage provisions in the following awards should be replaced by Model Clause 3:

Broadcasting and Recorded Entertainment Award 2010

Local Government Industry Award 2010

Manufacturing and Associated Industries and Occupations Award 2010

Oil Refining and Manufacturing Award 2010 (non-clerical employees)

Pharmacy Industry Award 2010

Rail Industry Award 2010

[28] Model Clause 3 will also be added to the Pastoral Award 2010 and the Horticulture Award 2010.

[29] In relation to the matter the subject of the second direction, we confirm our conclusion that Model Clause 3 should be added to the Health Professionals Award on the basis that it is applicable only to supervisory and managerial staff. It may be, as the ACA submitted, that a provision of this nature may not be regarded as being of utility by some employers, particularly small medical practices. However no employer would be compelled to use it, and the Ai Group’s submission in support of the inclusion of the provision is presumably indicative that at least some employers see some advantage in it.

[30] In paragraph [142] of the 2018 decision, our provisional conclusion was that we saw “no reason in principle why managerial or supervisory-level employees should not have access to an annualised salaries provision in appropriate form”, and we invited submissions as to whether Model Clause 3 or 4 should be added to the award “in relation to the classes of employees encompassed by the Ai Group’s claim” - that is, Support Services employee Levels 8 and 9, and all levels of Health Professional. 6 In paragraph [59] of the 2019 decision we indicated our preparedness for Model Clause 3 to apply to “managerial or supervisory employees only”, but we did not identify which specific classification levels that referred to. As earlier stated, the HSU submitted that the clause should apply only to managers classified at Health Professional Level 4, but no real basis for this submission was disclosed and we do not accept it. The classification definitions in Schedule C to the Health Professionals Award specify that the classifications of Support Services employee Levels 8 and 9 encompass the performance of supervisory duties, and we therefore consider that it is appropriate that Model Clause 3 apply to these classifications as well as all Health Professional classifications. It is worth emphasising that Model Clause 3 requires the agreement of the employee to any annualised wage arrangement and contains a range of protections intended to protect against any employee disadvantage.

[31] In relation to the issue of transitional arrangements traversed by the third direction we are satisfied based on the evidence and submissions before us that the introduction of the new annualised wage arrangement provisions will require employers which currently utilise such arrangements to make reasonably significant adjustments to their recording and payment procedures in order to comply with those provisions. In all the circumstances, we consider that the most straightforward and appropriate course is for the determinations varying the relevant awards to have an operative date of 1 March 2020.

[32] We confirm the conclusion stated in paragraph [60] of the 2019 decision that Model Clause 4 will be added to the Restaurant Award, the Marine Towage Award and the Hospitality Award in respect of non-managerial staff. Model Clause 4 will be amended in the same way as Model Clauses 1 and 3, as set out earlier in this decision, so that it will provide as follows (subject to modification of clause X.1(a) in each case to contain the full range of award entitlements which may currently be encompassed in an annualised wage arrangement and to retain the currently-specified percentage uplift):

X. Annualised wage arrangements

X.1 Annualised wage instead of award provisions

(a) An employer and a full-time employee may enter into a written agreement for the employee to be paid an annualised wage of an amount that is at least X% more than the minimum weekly wage prescribed in clause X multiplied by 52 for the work being performed in satisfaction, subject to clause X.1(b), of any or all of the following provisions of the award:

(i) clause X – Minimum weekly wages;

(ii) clause X – Allowances;

(iii) clause X – Overtime penalty rates

(iv) clause X – Weekend and other penalty rates; and 

(iv) clause X – Annual leave loading

(b) The employee must not be required by the employer in any pay period or roster cycle to work in excess of:

(i) an average of X ordinary hours which would attract a penalty rate under this provisions of this award per week; or

(ii) an average of X overtime hours per week

without being entitled to an amount in excess of the annualised wage in accordance with clause X.1(c).

(c) If in a pay period or roster cycle an employee works any hours in excess of either of the outer limit amounts specified in clause X.1(b), such hours will not be covered by the annualised wage and must separately be paid for in accordance with the applicable provisions of this award.

(d) Where a written agreement for an annualised wage agreement is entered into, the agreement must specify:

(i) the annualised wage that is payable;

(ii) which of the provisions of this award will be satisfied by payment of the annualised wage;

(iii) the outer limit number of ordinary hours which would attract the payment of a penalty rate under the award and the outer limit number of overtime hours which the employee may be required to work in a pay period or roster cycle under clause X.1(b) without being entitled to an amount in excess of the annualised wage in accordance with clause X.1(c).

(e) The employer must give the employee a copy of the agreement and keep the agreement as a time and wages record.

(f) The agreement may be terminated:

(i) by the employer or the employee giving 12 months’ notice of termination, in writing, to the other party and the agreement ceasing to operate at the end of the notice period; or 

(ii) at any time, by written agreement between the employer and the individual employee.

X.2 Annualised wage not to disadvantage employees

(a) The annualised wage must be no less than the amount the employee would have received under this award for the work performed over the year for which the wage is paid (or if the employment ceases or the agreement terminates earlier over such lesser period as has been worked).

(b) The employer must each 12 months from the commencement of the annualised wage arrangement or, within any 12 month period upon the termination of employment of the employee or termination of the agreement, calculate the amount of remuneration that would have been payable to the employee under the provisions of this award over the relevant period and compare it to the amount of the annualised wage actually paid to the employee. Where the latter amount is less than the former amount, the employer shall pay the employee the amount of the shortfall within 14 days.

(c) The employer must keep a record of the starting and finishing times of work, and any unpaid breaks taken, of each employee subject to an annualised wage arrangement agreement for the purpose of undertaking the comparison required by clause X.2(b). This record must be signed by the employee, or acknowledged as correct in writing (including by electronic means) by the employee, each pay period or roster cycle.

X.3 Base rate of pay for employees on annualised wage arrangements 

For the purposes of the NES, the base rate of pay of an employee receiving an annualised wage under this clause comprises the portion of the annualised wage equivalent to the relevant rate of pay in clause X - Minimum weekly wages and excludes any incentive-based payments, bonuses, loadings, monetary allowances, overtime and penalties.

[33] However the submission of the Hospitality Associations with respect to clause 27.2, Salaries Absorption (Managerial Staff (Hotels)), of the Hospitality Award has caused us to reconsider the conclusion also expressed in paragraph [60] of the 2019 decision that Model Clause 2 will apply to employees classified as managerial staff under that award. Clause 27.2 provides:

27.2 Salaries absorption (Managerial Staff (Hotels))

This clause applies to those employees classified as Managerial Staff.

(a) Managerial Staff who are paid a wage of 25% in excess of the minimum annual wage rate of $49,025 per annum as in clause 20.2 (in receipt of a salary of at least $61,281 per annum), will not be entitled to the benefit of the terms and conditions within the following clauses:

•  clause 12—Part-time employment;

•  clause 21—Allowances;

•  clause 29—Ordinary hours of work (Full-time and part-time employees)

•  clause 31—Breaks;

•  clause 32—Penalty rates;

•  clause 33—Overtime;

•  clause 34.2—Payment for annual leave;

•  clause 37.1(b)(i)—Additional arrangements for full-time employees (on public holidays);

•  clause 39—Provision of employee accommodation and meals.

(b) An employee being paid according to clause 27.2(a) will be entitled to a minimum of eight days off per four week cycle.

(c) An employee being paid according to clause 27.2(a) who works on a public holiday will be entitled to paid time off that is of equal length to the time worked on the public holiday. This time is to be taken within 28 days of accruing it.

(d) For the purpose of calculating the weekly equivalent of the annual salary rates prescribed by this clause, the divisor of 52 will be used and the resultant amount will be taken to the nearest 10 cents. All calculations required to be made under this award for the purpose of determining hourly amounts payable to an employee will be calculated on the weekly equivalent of the annual salary.

(e) Managerial Staff will be reimbursed for all monies reasonably expended for and on behalf of the employer subject to hotel policy or approval.

[34] The Hospitality Associations are correct in submitting that this provision is structurally the same as clause 17.3(a) of the Clubs Award, which applies to employees classified as club managers under that award. Clause 17.3(a) provides:

17.3 Non-application of particular provisions of this award to employees within particular classifications receiving specified salaries

(a) Managerial classifications—levels 7–13 inclusive in clause 17.2

(i) Subject to the requirements of the NES, the provisions of clauses:

•  18.1(h)—Higher duties;

•  18.3—Broken shifts;

•  26—Ordinary hours of work and rostering (other than

•  sub clause 26.8—Special provisions for accrued rostered days off—club managers);

•  27—Recall to duty—club managers;

•  28—Overtime; and

•  29—Penalty rates (other than penalty rate provisions relating to public holidays (see clause 29));

will not apply to a club manager receiving a salary of 20% in excess of the minimum annual salary rates for the appropriate classification prescribed in Schedule C—Classification Definitions.

(ii) Subject to the requirements of the NES, the provisions of clauses:

•  18.1(a)—Meal allowance;

•  18.1(c)—Uniforms—club managers;

•  18.1(d)—Vehicle allowance;

•  18.1(h)—Higher duties;

•  18.3—Broken shifts;

•  26—Ordinary hours of work and rostering;

•  27—Recall to duty—club managers;

•  28—Overtime;

•  29—Penalty rates; and

•  34.3—Additional arrangements for full-time employees

will not apply to club managers receiving a salary in excess of 50% above the minimum annual salary rate for the appropriate classification prescribed in Schedule C—Classification Definitions.

(iii) To avoid doubt, where a club manager is not paid in accordance with either paragraph (i) or (ii) above, the club manager will be entitled to the benefits of all relevant provisions of this Award.

[35] Clause 27.2 of the Hospitality Award has been treated as an annualised wage arrangements provision for the purpose of this review, but clause 17.3(a) of the Clubs Award has not. 7 To replace the former clause with Model Clause 2 but not the latter clause would arguably amount to inconsistent treatment of highly similar award provisions. We consider that the appropriate course is to invite submissions from parties with an interest in either of these awards to make further submissions in relation to this issue. Such submissions might usefully address the following questions:

(1) Are clauses 17.3(a) of the Clubs Award and clause 27.2 of the Hospitality Award to be regarded as provisions concerned with annualised wage arrangements as contemplated by s 139(1)(f) of the Fair Work Act 2009, or are they provisions of a different nature?

(2) If they are to be treated an annualised wage arrangement provisions, should both be replaced by Model Clause 2?

[36] We will allow interested parties 28 days from the date of this decision to provide such further submissions. With respect to the other awards dealt with in this decision, draft determinations will be published in due course, and interested parties will then be given 14 days to comment upon them.

VICE PRESIDENT

<PR709640>

Printed by authority of the Commonwealth Government Printer

 1   [2019] FWCFB 1289

 2   [2018] FWCFB 154

 3   Arnold Bloch Leibler; Allen & Overy; Allens; Ashurst; Baker McKenzie; Clayton Utz; Corrs; Davies Collison Cave; DLA Piper; Gadens; Gilbert + Tobin; Hall and Wilcox; Herbert Smith Freehills; King & Wood Mallesons; Lander & Rogers; Maddocks; Minter Ellison; Norton Rose Fullbright; Piper Alderman; Russell Kennedy Lawyers.

 4   [2001] FCA 1785; 111 IR 227

 5   [2015] FCAFC 99; 240 FCR 578

 6   See paragraph [56] and [58] of the 2018 decision.

 7   See paragraph [106] of the 2018 decision.