| [2019] FWCFB 6595 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.156—4 yearly review of modern awards
4 yearly review of modern awards—Plain language project
(AM2016/15)
JUSTICE ROSS, PRESIDENT |
MELBOURNE, 25 SEPTEMBER 2019 |
4 yearly review of modern awards – plain language project – determination of various issues
[1] On 20 August 2019 we issued a Decision 1 (the August 2019 Decision) which dealt with various issues before the Plain Language Full Bench and expressed provisional views in respect of some of those issues.
[2] This decision deals with two of the issues from the August 2019 Decision; namely ‘Reasonable overtime’ and the ‘National Training Wage’.
[3] In the August 2019 Decision we noted that no submissions were received concerning the draft determinations for the Fast Food Industry Award 2010, the General Retail Industry Award 2010, the Hair and Beauty Industry Award 2010 and the Pharmacy Industry Award 2010. We went on to observe that in [2018] FWCFB 6680 at [21] we referred to a submission by the National Retail Association which noted that the Fast Food, Retail and Hair and Beauty Awards were varied by the Part-time and Casuals Full Bench to remove the words ‘other than a casual’ from the reasonable overtime term. These variations came into effect on 1 January 2018 and on that basis we expressed the provisional view that the reference to ‘other than a casual’ should be deleted in the draft variation determinations in respect of these three awards.
[4] We also noted that the draft variation determination in the Pharmacy Award includes the words ‘other than a casual’ in circumstances where they do not appear in the current award and, further, the overtime provisions in the current award appear to apply to ‘all employee’ (see clause 26.1(a)). In those circumstances we expressed the provisional view that these words be deleted.
[5] Revised draft variation determinations in respect of these four awards were published on 20 August 2019 and interested parties were given 14 days to comment.
[6] No submissions have been filed. We confirm our provisional views and variation determinations will be issued shortly.
[7] In a Statement of July 2016 2 it was proposed that the National Training Wage Schedule (NTW Schedule) be standardised and removed from all awards except the Miscellaneous Award 2010 (the Miscellaneous Award) and that the NTW be incorporated into other awards by reference to the Miscellaneous Award.
[8] In a decision in June 2017 3 a reference term was inserted into the 94 modern awards specified in Attachment A of that decision. A decision4 of August 2017 finalised the plain language NTW Schedule and the Miscellaneous Award NTW Schedule was varied5 in September 2018.
[9] There were eight awards in which a party had sought to retain an award specific NTW schedule:
• Airline Operations—Ground Staff Award 2010 (the Airline Ground Staff Award);
• Airport Employees Award 2010 (the Airport Employees Award);
• Building and Construction General On-site Award 2010 (the Building On site 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 Industry Award).
[10] In the August 2019 Decision we noted that the AMWU and Ai Group had come to an agreement on the NTW schedules to be included in the following awards:
• Airport Employees Award;
• Food Manufacturing Award;
• Manufacturing Award; and
• Sugar Industry Award.
[11] Draft variation determinations reflecting the AMWU/Ai Group agreement were published with the August 2019 Decision and interested parties given 14 days to comment.
[12] On 23 August 2019 the AMWU filed a draft NTW schedule for the Airline Ground Staff Award. This draft was also the result of an agreement with Ai Group. A Statement 6 and draft variation determination was then published on 28 August 2019 and interested parties were given 14 days to comment.
[13] In a submission filed on 11 September 2019 the AMWU proposed some changes to the draft variation determinations in relation to the Food Manufacturing Award and the Manufacturing Award.
[14] In respect of the Food Manufacturing Award a series of cross-referencing changes were proposed on the basis that paragraph (f) is the appropriate cross-reference as it is the subparagraph that prescribes how to calculate ‘the actual minimum wage’. The changes proposed are as follows:
1. With respect to D.4.2(a), the “NOTE” directly beneath Table 5 on page 6 should be changed from:
“NOTE: See paragraph (d) for calculating the actual minimum wage. See also clause D.4.3 for other minimum wage provisions that affect this paragraph”
to:
“NOTE: See paragraph (f) for calculating the actual minimum wage. See also clause D.4.3 for other minimum wage provisions that affect this paragraph”.
2. With respect to D.4.2(b), the “NOTE” directly beneath Table 6 on page 7 should be changed from:
“NOTE: See paragraph (e) for calculating the actual minimum wage. See also clause D.4.3 for other minimum wage provisions that affect this paragraph”
to:
“NOTE: See paragraph (f) for calculating the actual minimum wage. See also clause D.4.3 for other minimum wage provisions that affect this paragraph”.
3. With respect to D.4.2(c), the “NOTE” directly beneath Table 7 on page 8 should be changed from:
“NOTE: See paragraph (e) for calculating the actual minimum wage. See also clause D.4.3 for other minimum wage provisions that affect this paragraph”
to:
“NOTE: See paragraph (f) for calculating the actual minimum wage. See also clause D.4.3 for other minimum wage provisions that affect this paragraph”.
4. With respect to D.4.2(d), the “NOTE” directly beneath Table 8 on page 8 should be changed from:
“NOTE: See paragraph (d) for calculating the actual minimum wage. See also clause D.4.3 for other minimum wage provisions that affect this paragraph”
to:
“NOTE: See paragraph (f) for calculating the actual minimum wage. See also clause D.4.3 for other minimum wage provisions that affect this paragraph”.
5. With respect to D.4.2(e), the “NOTE” directly beneath Table 9 on page 9 should be changed from:
“NOTE: See paragraph (e) for calculating the actual minimum wage. See also clause D.4.3 for other minimum wage provisions that affect this paragraph”
to:
“NOTE: See paragraph (f) for calculating the actual minimum wage. See also clause D.4.3 for other minimum wage provisions that affect this paragraph”.
[15] In relation to the Manufacturing Award the AMWU notes that the definition of ‘training package’ has been changed in the draft determination to reinsert the words:
‘and placed on the National Training Information Service with the approval of the relevant Ministers and includes any relevant replacement training package.’ 7
[16] In respect of this change the AMWU submits:
‘This sentence was left out of the AMWU’s draft schedules (and similarly the definition of ‘relevant ministers’ deleted) with agreement from Ai Group to reflect the new arrangements as the body with the task of endorsing training packages is now the COAG Industry and Skills Council (CISC).’ 8
[17] The changes proposed by the AMWU in respect of these two awards appear uncontroversial and accordingly it is our provisional view that the variation determinations be amended in the manner proposed. Any interested party opposing our provisional view is to file a submission setting out their position by no later than 4pm on 1 October 2019. If there is no opposition to our provisional view we will issue final variation determinations incorporating the changes proposed by the AMWU.
[18] No submissions were filed opposing the draft variation determinations in respect of the following awards:
• Airline Operations – Ground Staff Award 2010
• Airport Employees Award 2010
• Sugar Industry Award 2010
[19] We will now issue variation determinations in respect of each of these awards in the same terms as the draft determinations.
Printed by authority of the Commonwealth Government Printer
<PR712664>
PRESIDENT
7 AMWU submission 11 September 2019, at paragraph [21]
8 Ibid at paragraph [22]. See also the following link: https://docs.education.gov.au/system/files/doc/other/training_package_development_and_endorsement_process_policy.pdf