[2019] FWCFB 6899

The attached document replaces the document previously issued with the above code on 8 October 2019.

Footnote 53 to paragraph [56] has been replaced with “CPSU submission, 29 March 2019 at 4” to correct a typographical error.

Modern Awards Team

On behalf of the Associate to Justice Ross

Dated 12 November 2019

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

4 yearly review of modern awards–award stage
(AM2019/17)

4 yearly review of modern awards – finalisation of exposure drafts –9 October hearing.

1. Background

[1] The 4 yearly review of all modern awards has been conducted in three stages—an initial stage which dealt with some jurisdictional issues, a common issues stage where claims that affect all or a number of awards are dealt with by separate Full Benches and an award stage in which each award is reviewed in its own right. Where an issue arose in the award stage which was complex or where parties were seeking a substantive change to current entitlements, it was referred to a separate Full Bench for hearing and determination.

[2] During the award stage of the Review, modern awards were divided into 4 groups. A list of the awards allocated to each of the groups is at Attachment 1.

[3] Exposure drafts for Groups 1, 2, 3 and 4 were republished throughout February and March 2019 on the dates set out below:

Group 1: published on 13 February 2019

Group 2: published on 15 February 2019  1

Group 3: Sub-group 3A: published 1 March 2019

Sub-groups 3B, 3C, 3D published on 8 March 2019 2

Group 4: Sub-group 4A and 4B: published on 15 March 2019

Sub-group 4C and 4D: published on 22 March 2019

Sub-group 4E and 4F: published on 29 March 2019 3

[4] The revised exposure drafts contained the following updates:

•  technical and drafting decisions for each group (1–4) of the award stage;

•  common issues and plain language decisions including payment of wages on termination, standard clauses, National Training Wage, family and domestic violence leave, flexible working arrangements, part-day public holidays, casual conversion, minimum engagement and abandonment of employment; and

•  adjustments to rates and allowances resulting from the 2017-18 Annual Wage Review decision and any award variations operative since the last update.

[5] Interested parties were invited to comment on the revised exposure drafts and submissions were received throughout March and April 2019. On 2 September 2019, we issued a decision 4 (the September 2019 decision) about the finalisation of the 4 yearly review and invited interested parties to file reply submissions by 4 pm on Friday 20 September 2019.

[6] All submissions have been posted to the Commission’s website, on the relevant awards under review page. A complete list of all submissions received is at Attachment 2.

[7] A hearing has been listed for 9 October 2019 in Sydney to provide parties with an opportunity to make oral submissions in relation to the issues identified in the submissions which have been filed.

[8] This Statement deals with a number of the submissions received in response to republished exposure drafts and is intended to provide a focus for the hearing on 9 October 2019 of the contentious issues.

2. Correcting Minor Errors

[9] A number of the submissions received identify minor typographical errors or omissions within exposure drafts. Such minor errors have been identified in the following exposure drafts:

•  Aged Care Award 5

•  Aircraft Cabin Crew Award 6

•  Airport Employees Award 7

•  Building Award 8

•  Business Equipment Award 9

•  Cleaning Services Award 10

•  Fitness Award 11

•  Graphic Arts Award 12

•  Health Professionals 13

•  Higher Education – General Staff Award 14

•  Hospitality Award 15

•  Joinery Award 16

•  Labour Market Assistance Award 17

•  Local Government Award 18

•  Manufacturing Award 19

•  Maritime Offshore Oil and Gas Award 20

•  Meat Industry Award 21

•  Mobile Crane Hiring Award 22

•  Nurses Award 23

•  Pastoral Award 24

•  Poultry Processing Award 25

•  Plumbing and Fire Sprinklers Award 26

•  Real Estate Award 27

•  Road Transport (Long Distance Operations) Award 28

•  Seafood Processing Award 29

•  Textile Award 30

•  Timber Award 31

[10] Any party who contests the variation of the above exposure drafts to address the minor errors identified is invited to make a submission at the commencement of the hearing on 9 October 2019. Absent any opposition we will amend the exposure drafts to address these issues.

3. ‘Agreed’ or Uncontested Issues – Provisional views

Group 1 Awards

Black Coal Mining Industry Award 2010

[11] The Coal Mining Industry Employer Group (CMIEG) 32 submit that Schedule B.2.4 of the exposure draft, titled ‘B.2.4 Training and Development – Mines Rescue Training Officers’ does not make it clear that the provisions apply only to the employees of Mines Rescue Services. It is proposed that the Schedule be amended to include the following introductory words: ‘The following provision applies to mine rescue services employees only.’ The relevant change to the clause is as follows:

‘B.2.4 Training and Development – Mines Rescue Training Officers

The following provision applies to mines rescue service employees only. The employer will provide reasonable training and development as is required for the employee to undertake their role, or as required by the employer, so that employees:

(a) maintain competencies and a skills base in order to carry out the requirements of their role;

(b) can demonstrate the capability to undertake any reasonable tasks required by the employer;

(c) are supported to progress through the classifications set out in clause B.2.1, as agreed by the employee and employer.’

[12] CMIEG submit that it has consulted with the CFMMEU in relation to their submission and that the CFMMEU agrees with the suggested amendment. 33

[13] While the title to the clause clearly sets out to whom the clause applies it is our provisional view that the exposure draft be varied in the manner proposed by CMIEG.

Concrete Products Award 2010

[14] ABI submits that clause 13.3(e) of the exposure draft (relating to shiftwork and penalties) does not appear to have been amended in accordance with the Full Bench decision in [2018] FWCFB 3802. Paragraph [125] of that decision notes that a number of items had been resolved by agreement. Parties had previously agreed to replace clause 13.3(e) with clause 25.3(c)(ii) and (iii) of the current award, 34 this change has been made correctly to the exposure draft. Paragraphs [142] – [144] of the Full Bench decision state that the first two sentences of clause 13.3(e) should be deleted, but this amendment has not been made to the exposure draft.

[15] In accordance with ABI’s submission it is our provisional view that the exposure draft be updated as follows:

(e) The ordinary hours will be worked continuously except for meal breaks at the discretion of the employer. An employee will not be required to work for more than six hours without a meal break. Except at the regular changeover of shifts an employee will not be required to work more than one shift in each 24 hours, provided that:

(i) the rostered hours of work prescribed in this clause will not exceed 10 hours on any day;

(ii) shifts may be varied in accordance with clause 8.3(a).

(i) the ordinary hours of work prescribed in this clause will not exceed 10 hours on any day;

(ii) in any arrangement of ordinary working hours where the ordinary working hours are to exceed eight on any shift, the arrangement of hours will be subject to agreement between the employer and the majority of employees in the plant or work section or sections concerned; and

(iii) by agreement between an employer, and the majority of employees in the plant, work section or sections concerned, ordinary hours not exceeding 12 on any day may be worked subject to:

•  proper health monitoring procedures being introduced;

•  suitable roster arrangements being made;

•  proper supervision being provided;

•  adequate breaks being provided; and

•  an adequate trial or review process being implemented through the consultative process in clause 22—Consultation about major workplace change and clause 23A—Consultation about changes to rosters or hours of work.

[16] ABI further submit that clauses 13.4(c) and (d) of the exposure draft do not appear to have been deleted in accordance with the Full Bench decision [2018] FWCFB 3802. 35 Ai Group agrees with the submissions of ABI. We also agree with ABI’s submission and it is our provisional view that the entirety of clauses 13.4(c) and (d) will be deleted.

Maritime Offshore Oil and Gas Award 2010

[17] The CFMMEU seek an amendment to clause 7.2 of the exposure draft as follows (see red text):

‘7.2 Maximum working hours

In the case of rig shift, major machinery breakdown or in the case of an emergency employees may be required to work beyond 12 hours per day provided:

(a) an employee must not be required to be continuously on active duty for more than 18 hours per day;

(b) where an employee has been continuously on active duty for 18 hours per day they must not be required for further duty until they have had for the purpose of rest, a period of 10 consecutive hours off duty inclusive of meal breaks; and

(c) continuous duty for the purpose of this clause is not broken by meal times or breaks of not more than four hours per day which include a meal break.’

[18] The CFMMEU submit that the insertion of the words ‘per day’ provide greater clarity to the clause. 36

[19] We note that the term ‘per day’ is used in clause 7.1 of the exposure draft and see no reason why it should not be included in clause 7.2 and it is our provisional view that the exposure draft be updated accordingly.

Meat Industry Award 2010

[20] AMIEU submit that existing clause 33.2 and clause 16.1(b) of the exposure draft provide averaging of ordinary hours for shiftworkers and that neither clause specifies that casual employees and part-time employees are excluded from averaging arrangements. 37 They submit that with respect of non-shift workers, the exposure draft is specific about exclusions to averaging of ordinary hours. Consistent with the conditions provided to non-shiftworkers, the AMIEU suggests an amendment as follows:

16.1 (b) The ordinary hours of work for full-time shiftworkers are to be an average of 38 per week and must not exceed 152 hours in 28 consecutive days, subject to clause 16.1(b)(i) and (ii). The ordinary hours of work for a part-time or casual employee will be in accordance with clause 6—Types of employment.

[21] Ai Group do not oppose this amendment. 38

[22] It is our provisional view that clause 16.1(b) be amended as proposed by the AMIEU.

Poultry Processing Award 2010

[23] Clause 8.2(b) deals with ordinary hours of work and rostering for day workers. The final sentence of clause 8.2(b) reads as follows:

‘Any change to regular rosters or ordinary hours of work is subject to the consultative provisions in clause 21.2’

[24] AMIEU and Ai Group submit that the correct cross reference should be to clause 22A. The AMWU also submit that the cross reference is incorrect, but submits it should point to clause 21.1. We note that clause 21.1 of the exposure draft deals with redundancy.

[25] It is our provisional view that the correct cross reference is to clause 22A which deals with consultation about changes to rosters or hours of work and the exposure draft should be updated accordingly.

[26] ABI submits that the definition of the ‘poultry processing industry’ is set out in full at Schedule G to the exposure draft, which is inconsistent with the Full Bench decision [2017] FWCFB 3433 at [339] where it was determined that industry definitions in the definition schedules would simply refer readers to the relevant coverage clause, where the definition would be retained in full.

[27] The Full Bench decision issued on 6 July 2017 in relation to Group 3 Awards 39 decided that industry definitions are to be retained in full in the coverage clauses of all exposure drafts, and the definition schedule will include a definition of the industry which refers readers to the coverage clause. In that decision the bench said (in relation to the Nursery Award):

‘[338] The coverage clause exists in all awards and requires definition of the industries or occupations the award covers to give the clause substantive meaning. Additionally, the definition clause should provide a complete list of the relevant terms that require definitions within the award. The issue is summed up by Commissioner Roe in his Report to the Full Bench in relation to Real Estate Award:

‘In our view it’s consistent with the approach we’re taking in a number of awards to keep it [the definition] in two places, even though it is duplication and we try to avoid it in most cases but we think the definition of the industry is such an important thing for people to understand when they’re reading the award, we think it’s appropriate to have it up front as well as in the definitions.’ 290

[339] To resolve the concern of duplication and satisfy the above objectives we propose to follow the approach taken by parties in the Nursery Award. That is, the industry definition or definitions are to be retained in full in the coverage clause. The definition schedule will include a definition of the industry which refers readers to the coverage clause as per the following example:

3. Coverage

3.1 This industry award covers employers throughout Australia in the nursery industry and their employees in the classifications listed in Schedule A—Classification Definitions to the exclusion of any other award.

3.2 Nursery industry means:

(a) the propagation, planting, growing, cultivation, maintenance, sale, distribution or treating of plant material and associated nursery products in plant nurseries, flower, turf and tree farms or other similar enterprises;

…

(d) the despatching and distribution of plant material and associated products in connection with work under clauses 3.2(a) to (c).

Schedule H—Definitions

nursery industry has the meaning given in clause 3.2

[340] Exposure drafts in all award stages will be updated to reflect this decision. Parties are at liberty to make submissions through the award stage process.’

[28] It is our provisional view that the definition of poultry processing industry will be amended in accordance with [2017] FWCFB 3433 at [339] as follows:

poultry processing industry has the meaning given in clause 4.2. means the killing, processing, preparation, packing, wholesaling and distribution of uncooked poultry, poultry products and poultry by-products and, where the cooking is incidental to the aforementioned, cooked poultry, poultry products and poultry by-products.

[29] Clause 4.2 will contain the complete definition.

Pharmaceutical Industry Award 2010

[30] ABI notes that clause 8.2(a) of the exposure draft was amended in accordance with [2018] FWCFB at [308] to clarify that the weekly ordinary hours of work (being an average of 38) applied only to full time day workers. ABI query whether a similar amendment is required to clarify clause 8.3(a), which prescribes the weekly ordinary hours of work for shiftworkers.

[31] Clause 8.2(a) provides:

8.2 Ordinary hours—day workers

(a) The ordinary hours of work for a full time day worker are an average of 38 hours per week but not exceeding 152 hours in 28 consecutive days.

[32] Clause 8.3(a) is set out below:

8.3 Ordinary hours—shiftworkers

(a) The ordinary hours of work for shiftworkers are an average of 38 hours per week but not exceeding 152 hours in 28 consecutive days.

[33] Ai Group do not oppose the amendment proposed by ABI, but submit that additional amendments would be required to ensure that the award complies with s.147 of the Act. 40 Ai Group submits that the simplest way of dealing with this issue would be to amend clauses 8.2(a) and 8.3(a) so that they provide for full time and casual employment and to replicate clause 8.2(d) in clause 8.3.

[34] It is our provisional view that clauses 8.2(a) and 8.3(a) be amended to refer to both full time and casual employees, and that clause 8.2(d) be replicated in clause 8.3, as follows:

8.2 Ordinary hours—day workers

(a) The ordinary hours of work for a full-time and casual day workers are an average of 38 hours per week but not exceeding 152 hours in 28 consecutive days.

(b) Ordinary hours are worked continuously, except for meal breaks and rest pauses, between 7.45 am and 5.15 pm, Monday to Friday.

(c) Where the employer and the majority of employees in the affected plant, work section or sections agree, the spread of hours may be altered by up to one hour at either end of the spread.

(d) The ordinary hours of work for a part-time employee will be in accordance with clause 6 – Types of employment.

8.3 Ordinary hours—shiftworkers

(a) The ordinary hours of work for full time and casual shiftworkers are an average of 38 hours per week but not exceeding 152 hours in 28 consecutive days.

(b) Ordinary hours must not exceed 8 hours in any one day.

(c) At the discretion of the employer, ordinary hours must be worked continuously on Monday to Friday, except for meal breaks.

(d) Except at changeover of shifts, an employee must not be required to work more than one shift in each 24 hours.

(e) The ordinary hours of work for a part-time employee will be in accordance with clause 6 – Types of employment.

Security Services Industry Award 2010

[35] Clause 23.4(e) of the exposure draft reads:

‘An employee must be taken not to be on leave on any public holiday that falls during a temporary close down period. The employer is to pay the employee for the public holiday as the Award requires.’

[36] ABI do not object to the terms of clause 23.4(e), but submit that the example below the clause is inconsistent with the clause and unhelpful. The example is set out below:

Example 5—Public holiday falling during temporary close down period

An employer has arranged a temporary close down period that includes New Year’s Day.

For each employee who would normally have worked on the day that is New Year’s Day, the employee must pay them their normal rate of pay for that day as though:

•  it were not a public holiday; and

•  they had worked that day.

So if on the day that is New Year’s Day the employee would have worked 8 hours at their ordinary hourly rate and 2 hours at 150% of their ordinary hourly rate, then they are to be paid for that same number of hours at those same rates.”

[37] ABI submits that the example ‘sits inconsistently with the exposure draft’ and is unhelpful for employers and employees seeking to understand the payment obligations arising under the clause, because:

(a) It says payment is to be provided as if the day were not a public holiday, but it is not apparent why this is the case. The award provision is seeking to ensure that the public holiday is treated as a public holiday instead of a day of leave.

(b) It requires payment for non-attendance on a public holiday in excess of the payment obligations arising under the award and NES, because:

•  the award requires employees to be paid on a public holiday in accordance with the NES

•  the NES (at s.116) requires employees to be paid at their base rate of pay for their ordinary hours of work on a public holiday

•  the reference in the example to an employer paying 2 hours at 150% to an employee on a public holiday is likely to suggest payment obligations that exceed the NES entitlement

[38] It is our provisional view that the example under clause 23.4(e) be deleted.

Textile, Clothing, Footwear and Associated Industries Award 2010

[39] ABI propose that cross references be inserted to the facilitative provisions listed in clauses 5.2 to 5.4, as including the relevant clause numbers would assist both employers and employees reading the award. 41 The CFMMEU-MD oppose the change proposed by ABI on the basis that it is not necessary. Ai Group also submits that the proposed change is not necessary, but do not oppose it.42 It is our provisional view that the change proposed by ABI is not necessary and should not be made.

[40] ABI also submit that there is a cross-referencing error at F.5.8 and that the appropriate cross-reference is “clauses 29.1 and 29.2”. 43 Further, ABI submits that each of the dot points in F.5.8 should include a cross-reference. Ai Group44 agree with this submission. CFMMEU45 support the submission in relation to the cross-referencing error but oppose the insertion of cross-references at each dot point because the purpose of inserting references to clause 29.1 and 29.2 was to exclude these clauses as they relate to resolving disputes at the workplace and have no practical application to outworkers. It is our provisional view that the cross reference be updated but no other changes be made to F.5.8.

[41] In relation to clause C.3.2, ABI submits that Footnote 1 to the table is incomplete and should read: ‘Payment per shift in addition to applicable ordinary hourly rate’. CFMMEU-MD agrees with ABI’s proposal. It is our provisional view that Footnote 1 be amended as proposed by ABI.

Group 2 Awards

Health Professionals and Support Services Award 2010

[42] The HSU submits that the heading of clause 18.1, which reads ‘Weekend penalties – day worker’ requires amendment. A separately constituted Full Bench dealing with substantive claims in the Health Professionals and Nurses Award (AM2016/31) issued decisions 46 which outlined changes to clause 18.1 of the exposure draft. The HSU submits that while clause 18.1 itself has been amended according to the decisions of the Full Bench, the heading has not been updated.47

[43] We agree with the submission of the HSU and it is our provisional view that the words ‘day worker’ be removed from the heading at clause 18.1 of the exposure draft in line with the Full Bench decisions in AM2016/31.

Storage Services and Wholesale Award 2010

[44] ABI submit that the definition of ‘storage services and wholesale industry’ should be inserted into clause 3.2 (coverage) of the exposure draft in accordance with the Full Bench decision [2017] FWCFB 3433 at [339]. 48 Ai Group support ABI’s submission.49 The definition will be inserted into clause 3.2.

[45] It is our provisional view that the definition of ‘storage services and wholesale industry’ be inserted into clause 3.2.

Road Transport and Distribution Award 2010

[46] ABI submit that an existing error in the Grade 10 definition in Schedule C of the current Road Transport and Distribution Award 2010 has been replicated in clause 13.3(b)(ii) of the exposure draft and propose that the two clauses should be combined and redrafted as follows:

(ii) A Transport Worker Grade 10, when driving a multi-axle platform trailing equipment with a carrying capacity in excess of 100 tonnes will be paid:

•  for each additional 10 tonnes or part thereof in excess of 100 tonnes and up to 150 tonnes, an extra $17.23 per week; and

•  for each additional 10 tonnes or part thereof in excess of 150 tonnes and up to 200 tonnes, an extra $16.52 per week; and

•  for each additional 10 tonnes or part thereof in excess of 200 tonnes and up to 300 tonnes, an extra $16.13 per week.

These amounts are to be paid as part of the weekly wage rate for all purposes.

[47] The allowances and clause references listed in the table at clause D.1 would need to be updated accordingly. Ai Group does not oppose the proposed amendments. 50

[48] It is our provisional view that clause 13.3(b)(ii) of the exposure draft be amended as proposed by ABI and the allowances and clause references in the table at clause D.1 be updated accordingly.

[49] ABI further submit that by removing the special vehicle allowances from the definition of Transport Worker Grade 10, the definition now reads:

‘Driver of a multi-axle platform trailing equipment with a carrying capacity over 70 tonnes and up to and including 100 tonnes.’

[50] ABI submit that this suggests that the award does not cover drivers of multi-axle platform trailing equipment with a carrying capacity over 100 tonnes, despite allowances being provided for such drivers in clause 13.3(b). ABI suggest amending the Transport Worker Grade 10 definition to read:

‘Driver of a multi-axle platform trailing equipment with a carrying capacity over 70 tonnes.’

[51] Ai Group does not oppose these amendments. 51

[52] It is our provisional view that the definition of Transport Worker Grade 10 be amended as proposed by ABI.

Waste Management Award 2010

[53] ARTIO and ABI contend that the public holiday percentages have not been updated in Schedule A.2.1 of the exposure draft. 52 It is our provisional view that the exposure draft be updated as proposed by ARTIO and ABI.

Group 3 Awards

Gardening and Landscaping Award 2010

[54] Parties were asked to confirm that the definition of public holiday should be deleted from the definitions schedule. ABI did not oppose this course.

[55] It is our provisional view that the definition of public holiday be deleted from the definitions schedule.

Labour Market Assistance Industry Award 2010

[56] The CPSU submits that that there is currently no table in the Summary of Hourly Rates of Pay Schedule outlining overtime rates for casual employees. The CPSU submit that including this in the exposure draft would be consistent with a Full Bench decision issued in 2017 53 relating to Group 3 awards.

‘3.6 Casual overtime rates tables

[351] A number of parties across multiple awards seek to include casual overtime rates in the summary of hourly rates of pay schedule. At the mention on 6 June 2016, there was discussion at a general level about whether casual overtime rates should be included in the pay schedules. It was put that where there is a substantive entitlement for casuals to be paid overtime rates these rates should be included. The parties present at the mention did not oppose this position, provided there was an opportunity to review the content of the tables.

[352] There are some awards where the overtime rates of casuals are being considered by the AM2014/197 Casual Employment Full Bench. Unless parties have already agreed to include a casual overtime rate table, 298 the tables will only be put in awards, where applicable, following the outcome of the AM2014/197 Casual Employment Full Bench. Parties will be given an opportunity to review the tables.’

[57] A separately constituted Full Bench is considering the issue of overtime for casual employees and the Labour Market Award is before that Full Bench. Accordingly we do not intend to deal with the CPSU’s submission.

Local Government Industry Award 2010

[58] The WA Local Government Association, the Local Government Association of the Northern Territory and the Local Government of Tasmania (the LG Associations) made a submission directed at clause 10.5(a), Higher Duties.

[59] Clause 10.5(a) of the exposure draft reads:

‘An employee required by the employer to relieve in a higher level position where the employee is required to perform the substantive functions for more than one day will be paid the minimum hourly rate applicable to that higher level pursuant to clause 10.1.’

[60] Clause 18.1 of the current award reads:

‘18.1 An employee directed or appointed to relieve in a higher level position where the employee is required to perform the substantive functions of the role for more than one day will be paid at the higher hourly ordinary award rate pursuant to clause 14.1.’

[61] The LG Associations submit that the insertion of ‘An employee required by the employer’ in clause 10.5(a) is ‘unclear and may encourage employees to take on higher duties in circumstances where they are not directed or appointed to perform higher duties by their employer.’ They submit that clause 10.5(a) be amended to read:

‘An employee directed or appointed to relieve in a higher level position where the employee is required to perform the substantive functions for more than one day will be paid the minimum hourly rate applicable to that higher level pursuant to clause 10.1.’

[62] It is our provisional view that clause 10.5(a) be amended as proposed by the LG Associations.

Seagoing Industry Award 2010

[63] Two submissions were received relating to the Seagoing Award, both refer to the draft determination that has been issued for comment in the substantive claim matter in this award (see AM2016/5). AIMPE 54 and Sea Swift55 submit that the draft determination has not yet been inserted into the exposure draft. When this determination is issued by the Full Bench in final form it will be inserted into the exposure draft.

Sugar Industry Award 2010

[64] ABI submit that the facilitative provision in clause 26.10(d) requires agreement between an employer and the majority of employees. 56

[65] ABI does not oppose the amendment made in the exposure draft to the description in the table in Schedule E in relation to clause 16.1(v)(iii). 57

[66] Ai Group agree with both of the ABI submissions. 58

[67] It is our provisional view that the reference to the facilitative provision in clause 26.10(d) be amended as proposed by ABI.

Wine Industry Award 2010

[68] The South Australian Wine Industry Association (SAWIA) submit that the issue regarding piece rates raised by the Fair Work Ombudsman in March 2015 59 does not require any further action. The matter was dealt with during conferences before Commissioner Hampton and noted in a Report to the Full Bench published on 11 August 201560 It is our provisional view that this issue will not be dealt with further in this review.

[69] The SAWIA submit that the structure of the leading hand clause in the exposure draft (clause 16.2(a)) should be revised so that the Coopers Stream, currently at clause 16.2(a)(i) becomes clause 16.2(a)(ii). We note that the SAWIA submit that there is no issue with the drafting of the clause but that the structure of the clause should be changed to reflect the fact that cooperage is a very small subset of employees in the wine industry. Ai Group do not oppose this change. It is our provisional view that clause 16.2(a) be restructured so that allowances for ‘other leading hands’ are dealt with at (i) and the allowances for coopers stream leading hands will be at (ii).

[70] The SAWIA further submit that the tables in Schedules B.1.1 and B.2.1 should be amended to clarify the penalties payable to vineyard workers. They submit that the two tables set out rates of pay, including rates for working Saturdays and Sundays in ordinary time. Both tables include the notation “Saturday cellar door or vineyard”. SAWIA submit that whilst there is no dispute about the Saturday penalty rate being payable throughout the year in the cellar door, the reference to the vineyard in relation to Saturdays in ordinary time gives the impression that any time a vineyard employee works on a Saturday, the penalty rate in 18.1(a) is payable. They submit that is not the case as Saturdays can only be worked in ordinary time during vintage, in accordance with clause 8.6(a)(ii) and 8.6(b). The following amendment to the heading of the table is proposed:

Saturday – cellar door or vineyard (vintage only)

[71] Ai Group do not oppose this submission. No other submissions were received. It is our provisional view that the Exposure Draft should be amended as proposed by the SAWIA with the addition of the words ‘see clause 8.6(a)(ii) and (b)’ after ‘vintage only.’

Commercial Sales Award 2010

[72] ABI filed a submission relating to clause 3.1, clause 9.2 and Schedule A of the exposure draft. 61

[73] ABI submit that the definition of ‘commercial traveller’ was moved from the definition schedule to the coverage clause as a result of the Full Bench decision issued on 6 July 2017 in relation to Group 3 Awards 62 and notes that the Full Bench decision relates only to ‘industry’ definitions and the Commercial Sales Award is an occupational award. ABI do not object to the definition of ‘Commercial Traveller’ being defined in clause 3.1 but submit the definitions of ‘Merchandiser’ and ‘Advertising Sales Representative’ should also be included in clause 3.1 for completeness.63

[74] It is our provisional view that none of the definitions (i.e. commercial traveller, merchandiser or advertising sales rep) should be included in the coverage clause as they are not ‘industry definitions’ and should only appear in the definitions schedule.

[75] Clause 9.2 of the exposure draft reads as follows:

‘The following adult employees are not entitled to the minimum wages set out in the table in clause 9.

(a) an employee receiving a supported wage (refer to Schedule C— Supported Wage System); and

(b) a trainee

(i) Schedule E to the Miscellaneous Award 2010 sets out minimum wage rates and conditions for employees undertaking traineeships.

(ii) This award incorporates the terms of Schedule E to the Miscellaneous Award 2010 as at 1 July 2017. Provided that any reference to “this award” in Schedule E to the Miscellaneous Award 2010 is to be read as referring to the Commercial Sales Award 2010 and not the Miscellaneous Award 2010.’

[76] ABI submit that the reference to ‘the following adult employees’ could be interpreted as limiting the operation of the clause to adult employees and suggest the word ‘adult be removed from 9.2 of the exposure draft.’ It is our provisional view that the word ‘adult’ be deleted.

[77] ABI submit that clause 16.3 previously prescribed public holiday rates for work done by employees ‘in soliciting orders’. The clause was amended by [2018] FWCFB 1405 at [239] and now prescribes public holiday rates for work done by employees ‘other than travelling’. ABI submit that the summary tables in clauses A.1.1, A.1.2, A.2.1, A.3.1, A.3.2 and A.3.3 still divide public holiday rates into ‘soliciting orders’ and ‘travelling for work’. The heading ‘soliciting orders’ should be updated to ‘Other than travelling’. It is our provisional view that the summary tables be updated in the manner proposed by ABI.

Group 4 Awards

Aboriginal Community Controlled Health Services Award 2010

[78] The National Aboriginal and Torres Strait Islander Health Workers Association Ltd (NATSIHWA) submits that clause 2 of the revised exposure draft inserts a number of new definitions, namely:

(a) Aboriginal and/or Torres Strait Islander Health Worker;

(b) Advanced Health Worker - Care;

(c) Advanced Health Worker - Practice;

(d) Community Controlled Health Services Employees;

(e) Coordinator Care;

(f) Generalist Health Worker;

(g) Health Practitioner;

(h) Health Worker Trainee;

(i) Senior Health Care Worker - Care;

(j) Senior Health Practitioner; and

(k) Senior Health Worker - Care,

[79] NATSIHWA submits the claims for the insertion of these new definitions are currently before the separately constituted Full Bench in AM2018/12 and are yet to be determined. It submits the definitions should not be inserted into the exposure draft until determined by the Full Bench in AM2018/12. It is our provisional view that the definitions be removed from the exposure draft. The exposure draft will be updated, if necessary, once the Full Bench in AM2018/12 has determined the issues before it.

[80] NATSIHWA also submits that all references within the exposure draft to ‘Aboriginal’ should be replaced with the term ‘Aboriginal and/or Torres Strait Islander’ in accordance with the Full Bench decision in [2018] FWCFB 1548 at [24]. It is our provisional view that all relevant references within the exposure draft be updated.

Aged Care Award 2010

[81] The Aged Care Employers submit that the insertion of clause 7 – Facilitative provisions for flexible working practices has not been the subject of a Full Bench decision.

[82] Ai Group notes that clause 7 reflects a standard approach across the vast majority of exposure drafts and does not oppose the insertion of clause 7 in the Aged Care Award.

[83] We confirm that the Commission has adopted a standard approach regarding the insertion of an index to facilitative provisions. It is our provisional view that clause 7 remain in the exposure draft.

[84] The Aged Care Employers submit that the word ‘works’ should not be deleted from clause 22.2(a), as currently proposed.

[85] Ai Group opposes the submission made. The clause, if amended as proposed, would read as follows:

All time worked by a part-time or casual employee who works in excess of than 38 hours per week or 76 hours per fortnight must be paid at the following rates: …

[86] Ai Group submits that this sentence is not simple or easy to understand and that the clause should instead be amended to read as follows:

All time worked by a part-time or casual employee in excess of 38 hours per week or 76 hours per fortnight must be paid at the following rates:

[87] Ai Group submits that this change is consistent with the Commission’s earlier decision in this regard.

[88] It is our provisional view that clause 22.2(a) be amended as proposed by Ai Group.

Airport Employees Award 2010

[89] The AMWU submit that the heading of clause 18 be amended to ‘Breaks – day workers’ to more accurately reflect the decision [2018] FWCFB 4175. 64 This submission is supported by the CPSU.65 It is our provisional view that the heading be amended as proposed by the AMWU.

[90] AMWU and the CPSU submit that the wording of clause 24.11 (b) (i) of the exposure draft does not reflect that provisionally proposed by the full bench at paragraph [160] of its decision of 21st March, 2018 ([2018] FWCFB 1548), which wording had been prepared in order to correct an acknowledged inconsistency in an earlier formulation. No other submissions were received and it is our provisional view that the Exposure Draft will be amended in accordance with the earlier decision, as follows:

(i) Non-shiftworkers

An annual leave loading of 17.5% of the minimum hourly rate in clause 24.9 must be paid once annually on the first pay day in December to employees other than shiftworkers during each period of annual leave.

Broadcasting and Recorded Entertainment Award 2010

[91] The CPSU submits that the Exposure Draft does not correctly reflect the decision in [2017] FWCFB 3803 and the Determination giving effect to that decision (PR597597). In particular, the CPSU submits that items [16], [32] and [33] of the determination are not contained in the Exposure Draft. We agree and are of the provisional view that the Exposure Draft will be updated to reflect the decision.

[92] The CPSU also notes the Exposure Draft does not contain the wage schedules which are present in many other Exposure Drafts. The CPSU submit that such schedules are important and should be contained in this award. We do not propose to insert wages schedules into this award at this time.

Educational Services (Teachers) Award 2010

[93] The IEU submits that at the conference in this matter convened by the Commission on 7 March 2017 the parties reached agreement (PN408 and preceding paragraphs) concerning Item 3, specifically a note to be added to clause 6.1 of the award to ensure clarity over the applicability of particular flexibility provisions to teachers employed in differing sectors of the education industry. The IEU submits that this agreement is not reflected in the latest exposure draft.

[94] It is our provisional view that the exposure draft be amended as proposed by the IEU.

Social, Community, Home Care and Disability Services Industry Award 2010

[95] The exposure draft includes a note at clause 15.3 that refers to the transitional pay equity order. The ASU submits that this note should be deleted because the transitional pay equity order only applies to employees covered by Schedule B and C. National Disability Services agree with the ASU.

[96] It is our provisional view that the note at clause 15.3 be deleted.

Hair and Beauty Industry Award 2010

[97] Ai Group and the SDA both submit that as the Hair and Beauty Award will be subject to the plain language drafting process it is unnecessary to finalise the Exposure Draft at this stage. We agree. The plain language redrafting of the award will commence when the substantive issues in the award have been determined.

Hospitality Industry (General) Award 2010

[98] The AHA submit that a number of tables in Schedule B apply a public holiday overtime rate for full-time and part-time employees of 250% but that the correct public holiday overtime loading/rate for full-time and part-time employees is 225% (See clauses 28.4, 29.2 and 29.3 of the Hospitality Industry Exposure Draft). No submissions were received in response. It is our provisional view that the AHA submission is correct and, that the Exposure Draft be amended accordingly.

[99] The AHA further submit that Schedule B does not contain tables for overtime rates for various categories of casual employees and suggest that additional tables be inserted. The AHA is invited to provide draft tables reflecting their view.

4. CFMMEU – MUA Division submission

[100] The CFMMEU – MUA Division made separate submissions in relation to the following exposure drafts:

•  Marine Tourism and Charter Vessels Award,

•  Professional Diving (Industrial) Award 66,

•  Professional Diving (Recreational) Award 67 and

•  Stevedoring Award 68

[101] These submissions all note that the exposure draft does not address what are said to be ‘the ambiguities as to the payment of overtime for casuals’. The Union submits that given this issue is before the Full Bench in AM2017/51 (overtime for casuals common issue) the finalisation of these exposure drafts should await the determination of that Full Bench.

[102] We do not agree with the submission of the CFMMEU – MUA Division and will proceed to finalise the exposure drafts and subsequent variation of the relevant awards in accordance with the timeframe set out in our decision of 2 September 2019. 69 If the issues identified by the Union are resolved prior to the date set for finalisation of these exposure drafts, then any relevant amendment will be incorporated into the exposure draft. If the issues are still outstanding then the exposure draft will be finalised, and any amendment to the relevant clause can be made as a subsequent variation to the award.

5. The Contested Issues and the 9 October Hearing

[103] The schedule for the 9 October 2019 hearing is as follows:

Note: The following exposure drafts will not be the subject of oral submissions at the 9 October 2019 hearing:

•  Aircraft Cabin Crew Award: the issues raised will be the subject of a conference before Commissioner Bissett at a time to be determined.

•  Clerks Private Sector Award: the issues raised will be determined by the Plain Language Full Bench.

•  Fitness Industry Award: the submissions made will be referred to the Full Bench hearing matter AM2017/51.

•  Live Performance Industry Award: the issues raised will be the subject of a conference before the President at a time to be determined.

•  Pharmacy Industry Award: the issues raised will be the subject of a conference before the President at 9:30 am on Thursday 21 November 2019.

[104] We now turn to deal with the remaining issues, by Award Group.

Group 1

[105] No contested issues have been identified in the submissions in relation to the following Group 1 awards:

Subgroup 1A:

•  Ambulance and Patient Transport Industry Award 2010

•  Cleaning Services Award 2010

•  Cotton Ginning Award 2010

Subgroup 1B:

•  Aluminium Industry Award 2010

•  Cement and Lime Award 2010

•  Concrete Products Award 2010

•  Premixed Concrete Award 2010

•  Quarrying Award 2010

•  Salt Industry Award 2010

Subgroup 1C:

•  Manufacturing and Associated Industries and Occupations Award 2010

•  Pharmaceutical Industry Award 2010

•  Textile, Clothing, Footwear and Associated Industries Award 2010

•  Timber Industry Award 2010

•  Vehicle Manufacturing, Repair, Services and Retail Award 2010

•  Wool Storage, Sampling and Testing Award 2010

Subgroup 1D:

•  Black Coal Mining Industry Award 2010

•  Mining Industry Award 2010

•  Oil Refining and Manufacturing Award 2010

•  Rail Industry Award 2010

•  Stevedoring Industry Award 2010

Subgroup 1E:

•  Gas Industry Award 2010

•  Hydrocarbons Industry (Upstream) Award 2010

•  Marine Tourism and Charter Vessels Award 2010

•  Maritime Offshore Oil and Gas Award 2010

•  Professional Diving Industry (Industrial) Award 2010

•  Professional Diving Industry (Recreational) Award 2010

[106] The outstanding contentious issues relate to the:

Subgroup 1A:

•  Security Services Industry Award 2010

Subgroup 1B:

•  Asphalt Industry Award 2010

Subgroup 1C:

•  Meat Industry Award 2010

•  Poultry Processing Award 2010

[107] The issues in relation to each of these awards are summarised below.

Security Services Industry Award 2010

[108] The exposure draft contains a definition of ‘monitoring centre’ as follows:

‘monitoring centre means a facility that remotely monitors intruder alarm systems (in compliance with AS 2201.2, Intruder alarm systems, Part 2: Monitoring centres) and provides specific responses that do not require any employee working at the centre to physically attend the location of any alarm.’

[109] ABI submit that this definition differs from the current award drafting, which describes a central station/monitoring station as follows:

‘Central station (also known as “monitoring station”) means a facility that remotely monitors intruder alarm systems from sites that are not co-located with the centre and complies with AS 2201.2, which monitors intruder alarm systems and provides specific responses. Central station staff do not themselves physically attend the location of any alarms.’

[110] ABI submit it is not apparent why the definition has been changed , in particular it is not clear why the phrase “from sites that are not co-located with the centre” has been removed from the exposure draft definition. ABI submit this appears to be a substantive change and that the change should not be made absent a merit basis for the change (with the parties having had the opportunity to comment and address any such merit basis). 70

[111] ASIAL also submit that the variation made to the current ward definition is significant and changes its meaning and intent. It submits the definition was inserted into the current award in December 2013 by PR545781 and that the words ‘from sites that are not co-located with the centre’ are essential to the definition. ASIAL submit that the current award definition should be retained and the plain language definition deleted. 71

[112] United Voice will be invited to respond to the ABI and ASIAL submissions at the hearing.

[113] United Voice made a submission relating to clause 21.6(a) of the current award which contains a definition of ‘operationally impracticable’. Following the Decision dated 8 November 2018, 72 the equivalent clause (14.4) of the exposure draft has been deleted. Clause 14.3 now stands without any qualification, and United Voice submits that this gives employers greater discretion to determine that a break is ‘operationally impracticable’. It is submitted that this is a substantive change from the current award and the definition should be reinserted at clause 14.3 as follows:

14.3 An employee who works more than 5 hours in any one shift is entitled to one unpaid meal break of at least 30 minutes (unless it is operationally impracticable to have the meal break). For the purpose of this clause it will be operationally impractical to grant an unpaid meal break unless the employee is permitted to leave the client’s premises or be unavailable for work during the period of the meal break.

[114] ABI and ASIAL will be invited to respond to United Voice’s submission at the hearing.

Asphalt Industry Award 2010

[115] ABI submits that the definition of ‘casual ordinary hourly rate’ in Schedule F of the exposure draft has been amended to read:

‘casual ordinary hourly rate means the hourly rate for a casual employee for the employee’s classification specified in clause 10, plus the casual loading, industry allowance and inclement weather allowance’

[116] ABI submits this definition is different to the description (as opposed to definitions) of the ‘casual ordinary hourly rate’ at Schedule A.3.1 of the exposure draft which reads:

‘Casual ordinary hourly rate includes the casual loading, industry allowance (clause 11.1(b)) and inclement weather allowance (clause 11.1(c)) which are payable for all purposes.’

[117] ABI proposes, for consistency, to replace the Schedule F definition with “casual ordinary hourly rate has the meaning given in clause A.3.1”.

[118] Ai Group opposes the change proposed by ABI and submits that, if adopted, it would no longer be clear that the casual ordinary hourly rate includes the minimum hourly rate prescribed by clause 10, which would make the definition less clear. Ai Group further submits that the expression ‘casual ordinary hourly rate’ is used in various provision in the body of the exposure draft and the change proposed by ABI would require the reader to first turn to the definitions schedule they would then be redirected to the schedules. Ai Group submits that such a ‘two step process’ is ‘unhelpful and unnecessary’.

Meat Industry Award 2010

[119] The Commission posed the following question at clause 8.5(b), clause A.2.4 and Schedule H of the exposure draft: ‘should the words ‘and any ancillary products’ be added after the reference to ‘meat products?’. The question was put in order to ensure consistency in the wording used throughout the exposure draft.

[120] The AMIEU and ABI are not opposed to the additional words being included in the exposure draft. 73 Ai Group oppose the additional words on the basis that the addition of the expression ‘ancillary products’ is unnecessary and ‘could create uncertainties regarding the coverage of the award’.74

[121] The AMIEU submits that clause 12 of the exposure draft departs from the clause 28.1 of the current award. Clause 12 of the exposure draft states:

12. Higher duties

12.1 An employee required to perform the duties of a position at a higher classification level for two hours or longer, must be paid, for all work done on that day or shift, the rate applicable for that higher level.

12.2 If the work at the higher classification level is for less than two hours, the employee will be paid for two hours at the higher rate and the balance of their working time will be paid at the rate of the employee’s ordinary classification.

[122] Clause 28.1 of the current award is in the following terms:

28.1 Higher duties

An employee engaged for two hours or more on any day or shift on duties carrying a higher rate than their ordinary classification will be paid the higher rate for such day or shift, and if for less than two hours of the employee’s total time worked on such day or shift, the employee will be paid for two hours at the rate of the higher classification and the balance of the employee’s working time at the rate pertaining to the employee’s ordinary classification.

[123] AMIEU submit that clause 28.1 provides that a higher duties payment is payable when an employee is ‘engaged’ on duties carrying a higher minimum wage. In contrast, clause 12 of the exposure draft provides for a higher duties payment when an employee is “required by the employer to perform the duties of a position carrying a higher minimum wage”. AMIEU submits that the exposure draft appears to set a different threshold to that in the existing award.

[124] Ai Group disagrees with the point advanced by the AMIEU:

‘We do not consider that the exposure draft creates a different threshold for payment under the higher duties clause to that which applies under the current award’.

[125] Subclause 31.2(h) of the current award provides an additional 5% and 12.5% for ordinary hours worked by cleaners at certain times, as follows:

‘(h) Cleaners

(i) Where ordinary hours for an employee are commencing after 8.30 am and prior to 12.00 noon, employees must receive their ordinary hourly rate plus 5%.

(ii) Where ordinary hours for an employee are commencing at 12.00 noon or later and finish at or before midnight, employees must receive their ordinary hourly rate plus 12.5%.’

[126] The AMIEU submits that these references have been removed from the ordinary hours of work clause and that the additional amounts applicable to cleaners only appear in the penalty rates clause, at clause 17. The AMIEU suggests an amendment to sub-clause 8.2 in order to include a reference to payments in sub-clause 17.4, as follows.

Regardless of the spread of hours in clauses 8.3(a), 8.4(a) or 8.5(a), cleaners may be employed to work ordinary hours between 6.30 am and midnight in any establishment under this award. A cleaning employee may be entitled to a penalty under clause 17.4 with respect of ordinary hours worked at certain times.

[127] Ai Group do not oppose an amendment being made to refer to the amounts payable at clause 17.4 but they do not support the amendment proposed by the AMIEU 75 because it refers to ‘cleaning employees’ and not ‘cleaners’ and also because 17.4 prescribes a rate and not a penalty. Ai Group propose the following alternative amendment:

Regardless of the spread of hours in clauses 8.3(a), 8.4(a) or 8.5(a), cleaners may be employed to work ordinary hours between 6.30 am and midnight in any establishment under this award. A cleaner may be entitled to a payment under clause 17.4.

[128] Clause 33.10 of the current award states:

‘A shiftworker except when engaged on a three-shift system, may either be allowed a:

(a) meal break of not less than 30 minutes per shift; or

(b) crib time of 30 minutes after working five hours, which will be counted as time worked and to be taken at a time agreed between the employer and a majority of employees directly concerned.’

[129] The AMIEU submits that clause 33.10 lacks clarity, particularly with respect of meal breaks for shiftworkers engaged on a three-shift system and that this lack of clarity has been replicated in clause 9.4 of the exposure draft, which states:

‘An employer must provide a shiftworker, except a shiftworker engaged on a three-shift system, with either:

(a) an unpaid meal break in accordance with clause 9.1(a); or

(b) crib time of 30 minutes after working five hours, which will be counted as time worked and to be taken at a time agreed between the employer and a majority of employees directly concerned.’

[130] The AMIEU contends that it is unclear what meal break and/or crib break conditions apply to shiftworkers on a three-shift system and suggests an amendment to provide meal break conditions to shiftworkers engaged on a three-shift system, as follows.

a shiftworker engaged on a three-shift system will crib time of 30 minutes after working five hours which will be counted as time worked and to be taken at a time agreed between the employer and a majority of employees directly concerned.

[131] It is submitted that these provisions provide averaging of ordinary hours for shiftworkers and that neither clause specifies that casual employees and part-time employees are excluded from averaging arrangements. With respect of non-shift workers, the exposure draft is specific about exclusions to averaging of ordinary hours and consistent with the conditions provided to non-shift workers, the AMIEU suggests an amendment as follows.

16.1 (b) The ordinary hours of work for full-time shiftworkers are to be an average of 38 per week and must not exceed 152 hours in 28 consecutive days, subject to clause 16.1(b)(i) and (ii). The ordinary hours of work for a part-time or casual employee will be in accordance with clause 6—Types of employment.

[132] Ai Group oppose this amendment on the basis that it would introduce a paid meal break for employees on a three-shift system and that this would be a substantive change. 76

Poultry Processing Award 2010

[133] AMIEU made a submission in relation to clause 10.5 (previously 10.6) of the exposure draft for the Poultry Award, which deals with Higher Duties. The submission is in similar terms to that made in relation to the Meat Award set out above. It submits that the clause in the exposure draft appears to depart from the existing award clause (clause 21). Clause 10.5 of the exposure draft is in the following terms:

10.5 Higher duties

(a) An employee required by the employer to perform the duties of a position carrying a higher minimum wage than the employee’s ordinary classification for more than four hours during one day, must be paid the higher minimum wage for that day.

(b) An employee required by the employer to perform the duties of a position carrying a higher minimum wage than the employee’s ordinary classification for four hours, must be paid the higher rate for the actual time worked at that higher level.

[134] Clause 21 of the current award is in the following terms:

21. Higher duties

An employee engaged for more than four hours during one day on duties carrying a higher minimum wage than the employee’s ordinary classification must be paid the higher minimum wage for such day. If engaged for four hours or less during one day, the employee must be paid the higher minimum wage for the time so worked.

[135] AMIEU submit that clause 10.5 of the exposure draft departs from the existing award clause 21 in the following ways:

a. Existing award clause 21 provides higher duties payment for workers engaged on duties carrying a higher minimum wage for “four hours or less during one day”. In contrast, Exposure Draft clause 10.5 has removed the words “or less” with the effect that higher duties payment has effect only when four hours are worked.

b. Existing award clause 21 provides higher duties payment when an employee is “engaged” on duties carrying a higher minimum wage. In contrast, Exposure Draft clause 10.5 provides higher duties payment when an employee is “required by the employer to perform the duties of a position carrying a higher minimum wage”. The Exposure Draft appears to set a slightly different threshold. 77

[136] Ai Group agree that the words “four hours or less during one day” should be inserted into the Exposure Draft. 78 However, Ai Group do not agree with the AMIEU submission about the threshold for higher duties payments.79

Group 2

[137] No contested issues have been identified in the submissions in relation to the following Group 2 awards:

Subgroup 2A:

•  Alpine Resorts Award 2010

•  Aquaculture Industry Award 2010

•  Graphic Arts, Printing and Publishing Award 2010

•  Seafood Processing Award 2010

•  Storage Services and Wholesale Award 2010

Subgroup 2B:

•  Animal Care and Veterinary Services Award 2010

•  Health Professionals and Support Services Award 2010

•  Medical Practitioners Award 2010

Subgroup 2C:

•  Passenger Vehicle Transportation Award 2010

•  Transport (Cash in Transit) Award 2010

Subgroup 2D:

•  Corrections and Detention (Private Sector) Award 2010

•  Fire Fighting Industry Award 2010

•  Horse and Greyhound Training Award 2010

•  Racing Industry Ground Maintenance Award 2010

[138] The outstanding contentious issues relate to the:

Subgroup 2B:

•  Nurses Award 2010

•  Pharmacy Industry Award 2010

Subgroup 2C:

•  Road Transport (Long Distance Operations) Award 2010

•  Road Transport and Distribution Award 2010

[139] The issues in relation to each of these awards are summarised below:

Nurses Award 2010

[140] Clause 17.8 of the exposure draft states:

‘17.8 Annual leave loading

For the period of annual leave in addition to their ordinary pay:

(a) an employee, other than a shiftworker, will be paid an annual leave loading of 17.5% of their ordinary pay on a maximum of 152 hours/four weeks annual leave per annum;

(b) a shiftworker will be paid the higher of:

(i) an annual leave loading of 17.5% of ordinary pay; or

(ii) the weekend and shift penalties the employee would have received had they not been on leave during the relevant period.’

[141] The current wording of clauses 31.1 and 31.7 is as follows:

‘31.1 Quantum of annual leave

(a) In addition to the entitlements in the NES, an employee is entitled to an additional week of annual leave on the same terms and conditions.

(b) For the purpose of the additional weeks annual leave provided by the NES, a shiftworker is defined as an employee who:

(i) is regularly rostered over seven days of the week; and

(ii) regularly works on weekends.

(c) To avoid any doubt, this means that an employee who is not a shiftworker for the purposes of clause 31.1(b) above is entitled to five weeks of paid annual leave for each year of service with their employer, and an employee who is a shiftworker for the purposes of clause 31.1(b) above is entitled to six weeks of paid annual leave for each year of service with their employer.

…

31.7 Annual leave loading

(a) In addition to their ordinary pay, an employee, other than a shiftworker, will be paid an annual leave loading of 17.5% of their ordinary pay on a maximum of 152 hours/four weeks annual leave per annum.

(b) Shiftworkers, in addition to their ordinary pay, will be paid the higher of:

(i) an annual leave loading of 17.5% of ordinary pay; or

(ii) the weekend and shift penalties the employee would have received had they not been on leave during the relevant period.’

[142] The parties were asked to clarify whether the leave loading in clauses 17.8(b)(i) and 17.8(b)(ii) is based on 4, 5 or 6 weeks.

[143] PHIEA submits that the leave loading only applies to 4 weeks of annual leave, as stated in clause 17.8(a) and that clause 17.8(b) does not replace clause 17.8(a) ‘but merely clarifies how the loading, which is to apply over the 4 weeks, is to be calculated for a shift worker.’ PHIEA also submits that the words ‘ordinary pay’ (in clause 17.8(a) and (b)(i)) should be replaced with ‘their minimum pay.’

[144] ABI submits that the relevant period is 5 weeks, for the following reasons:

(a) employees other than a shiftworker receive loading in respect of the National Employment Standards’ entitlement (i.e. 4 weeks), but not in respect of the additional week of leave provided for under the Award (the ‘bonus week’);

(b) other modern awards which contain a similar entitlement to annual leave loading or penalties prescribe that shiftworkers will receive those benefits in respect of 5 weeks of their accrued annual leave (see, for example, the Manufacturing and Associated Industries and Occupations Award 2010); and

(c) it would be an inequitable outcome for shiftworkers to receive an additional monetary benefit in respect of their ‘bonus’ week, but not to extend the same entitlement to employees other than shiftworkers.

[145] The ANMF opposes the position put by PHIEA and ABI.

[146] The ANMF submits the wording of 17.8 of the Exposure Draft is not ambiguous and reflects the substantive entitlement as it is in the current Nurses Award.

[147] In the alternative, if the Commission determines that clarification is necessary, the ANMF submits the appropriate clarification is that the application of leave loading or penalties for shiftworkers is based on 6 weeks. Such clarification could be provided by way of a note to the clause.

[148] The ANMF submits that shift workers are entitled to be paid the higher of leave loading or weekend and shift penalties they would have received had they not been on leave for the 6 weeks of their annual leave entitlement.

[149] The ANMF submits the proper construction of the clause, particularly when regard is had to the current clause 31.7, is that clause 17.8 (b) is not merely a clarification of how the loading is to be calculated, but also is a distinct entitlement to that set out in 17.8(a) for employees other than shiftworkers.

[150] The ANMF does not agree with ABI’s characterisation of the entitlement to an additional week of annual leave under the Award as a ‘bonus’. Nor does it agree with the argument that shiftworkers are the beneficiaries of an inequitable outcome by virtue of receiving the higher of leave loading or penalties on the their full entitlement to annual leave.

[151] The ANMF submits that ‘it is well understood and established practice that shiftworkers receive the higher of leave loading or penalties for the entirety of their annual leave entitlement in order to ensure they are not worse off by virtue of taking annual leave than they would have been if leave were not taken.’ Non-shiftworker employees, or day workers, are not subject to the same disadvantage as shiftworkers when taking annual leave as they will receive the same ordinary pay when on leave as when working.

Pharmacy Industry Award 2010

[152] The Pharmacy Guild of Australia (PGA) has raised a number of issues regarding the Plain Language draft in submissions dated 15 March and 18 September 2019. These matters will be the subject of a conference before the President on Thursday 21 November 2019 at 9.30am and will not be the subject of submissions at the hearing on 9 October 2019.

Road Transport (Long Distance Operations) Award 2010

[153] NatRoad raise the following issues:

•  Clause 3.2 – pivotal to the coverage of this Award are the definitions of long distance operation and interstate operation but, clause 3.2 only contains the definition of long distance operation. As these definitions are in Schedule F, NatRoad submits they do not need to be in the body of the Award, alternatively if a reference to long distance operation remains in the current clause 3.2 then interstate operation should also be included.

Note: Ai Group agrees but suggests an alternate response in relation to this issue.

•  Clause 6.4(g) – the expression ‘for driving or loading and unloading work’ is used in the latter part of this subclause. NatRoad suggests changing the word ‘work’ to ‘duties’ consistent with the way the expression is used in clauses 6.5(c) and 11.6.

Note: Ai Group does not consider that the proposed change is necessary. Clause 6.4(g) deals with the ‘work’ of a part time employee and it may be confusing to include a reference to the concept of ‘duties’ in the second part of the provisions.

•  Clause 6.5(b) – in the second line the expression cents per kilometre is followed by the abbreviation (CPK) which also appears at clause 6.4(g)(i), but the abbreviation is not elsewhere used in the exposure draft. NatRoad suggests the abbreviation be deleted as the expression in full is used elsewhere in the exposure draft e.g. in 6.5(d)(i).

Note: Ai Group does not oppose the amendment but notes that ‘there may be some benefit to retaining the current wording as it is not uncommon for participants in the industry to use the abbreviation ‘cpk rates’ when discussing this form of renumeration.

•  Clause 7 – rather than merely having N/A in the description for grades 1 and 2, NatRoad suggests words that accord with the note to the table be inserted, along the following lines: ‘These grades are not used to classify employees covered by this Award.’

Note: Ai Group does not oppose either approach, as both seem appropriate.

•  Clauses 8.2 and 9.2 – clause 8.2(a) contains the expression ‘Commonwealth, State or Territory laws, relating to the control of driving and working hours of heavy vehicle operators or the management of fatigue.’ However, this expression is a defined term in Schedule F where it is defined as ‘fatigue management rules/regulation.’ That definition is used in clause 9.2. where the following appears: ‘fatigue management rules/regulations (as defined in Schedule F) as varied from time to time.’ The expression of these terms should be consistent. In addition, the expression ‘as varied from time to time’ in clause 9.2 is otiose given the terms of the definition in Schedule F.

Note: Ai Group notes that NatRoad does not propose any amendment and hence are uncertain as to precisely what change is proposed.

•  Clause 11.1(a) – having rates which are inserted and then crossed out may confuse some readers accordingly NatRoad suggests having wording inserted which is consistent with the wording proposed for Clause 7 as follows: ‘These grades are not used to classify employees covered by this Award.’

Note: Ai Group agrees

•  Clause 11.4(a) – the cents per kilometre rates shown are to two decimal places. But the rates at Schedule A are to 4 decimal places. These provisions should be consistent. We favour showing the rates at two decimal places.

Note: Ai Group agrees.

•  Clause 12.2(d)(i) and (ii) – the Codes referred to are not given their correct titles. The ‘Australian Explosives Code by Public Road’ is in fact entitled ‘Australian Code for the Transport of Explosives by Road and Rail.’ The “Australian Dangerous Goods Code” is short hand for the full title which is ‘Australian Code for the Transport of Dangerous Goods by Road & Rail.’

Note: Ai Group agrees.

•  Clause 12.3(a) – refers to a ‘weekly employee.’ The definition at Schedule F says that a weekly employee ‘means an employee on weekly hiring.’ These are the only two places in the Draft where the expression is used. The expression should be defined to mean ‘a full time or part time employee.’

Note: Ai Group agrees.

•  Clause 12.3(c) – despite the current attempt to correct the language, we suggest that the word ‘on’ in the first line remains as part of the text – this would assist clarity of language.

Note: Ai Group agrees.

[154] ARTIO ‘generally supports’ NatRoad’s submissions and makes the following additional points:

(i) ARTIO notes that ‘employee handling money’ is defined in the RTD Draft but it would be better defined as ‘handling money’ and omitting the word ‘employee’ this would make it a more clear and simple definition. Also, it is not clear as to what time period is covered by the amount of money handled- is it a day, week, month or occasion? It has been generally accepted that it is per week so it could be easily addressed by inserting the words ‘per week’ after ‘For any amount handled’ in the top left-hand box.

(ii) In clause 15.3 Shift Allowances the amount paid to shift-workers for working ‘ordinary hours’ is a defined as a percentage of the ‘ordinary hourly rate’ so the ‘ordinary hourly rate’ for shift-workers becomes confusing, especially when calculating overtime in Clause 15.5 when payment is made at 150% or 200% respectively, of the ‘ordinary hourly rate. This could be construed to mean the ‘loaded shift rate’ which would totally contradict the well-established practices in the industry- whereby the shift allowance is not included when calculating overtime payments to shift-workers.

(iii) ARTIO submits that this should be clarified by stating that the shift allowances are not included in overtime calculations.

(iv) Clause 15.4 can also create confusion around whether or not the casual loading and shift loadings are cumulative, that is, is the 25% for the casual loading calculated on top of the loaded shift rate or is the 25% obtained from the ‘minimum hourly rate’ specified in clause 12.1? It is well understood that the ‘minimum hourly rate’ approach is the accepted custom and practice in the transport industry and ARTIO submits that this should be made very clear in the wording by inserting the words ‘which is calculated from the minimum hourly rate in clause 12.1’ after the figure of ‘25%’ in clause 15.4.

Road Transport and Distribution Award 2010

[155] NatRoad submits:

•  Clause 13.3(b)(ii) – in the additional monies payable to a grade 10 worker that are currently set out in the detail of the classification structure at Schedule C of the Award, have been placed in this paragraph as a separately articulated allowance. In this transition, it appears that the current typographical error in the first line of the classification definition has caused an error in this clause. The following is the current definition which contains the error shown in bold – in short the first ‘or’ in the second line should be for:

Driver of a multi-axle platform trailing equipment with a carrying capacity in excess of 70 tonnes and up to and including 100 tonnes or each additional 10 tonnes or part thereof in excess of 100 tonnes an extra 2.18% of the standard rate (as part of the weekly wage rate for all purposes) up to 150 tonnes will be payable.

NatRoad submits that the first dot point of 13.3(b)(ii) should be deleted as there is no additional amount payable for operating a vehicle between 70-100 tonnes.

•  Clause 13.3(d) – NatRoad submits that ‘handling money’ is not defined albeit the heading says it is. NatRoad proposes the following definition: ‘handling money’ refers to the process of receiving and giving cash in an enterprise covered by this Award in a weekly period.’

Note: Ai Group submits that NatRoad appear to have overlooked the definition of the term ‘employee handling money’ contained in the exposure draft, which, Ai Group contends, should not be replaced by the definition proffered by NatRoad.

•  Clause 13.3(f) – NatRoad notes that the ‘Australian Dangerous Goods Code’ is short hand for the full title which is ‘Australian Code for the Transport of Dangerous Goods by Road & Rail.’

Note: Ai Group agrees.

•  Schedule C – NatRoad submits that the note should be deleted as it is too general a statement. Meeting the obligations under Schedule A is not equivalent to meeting all obligations under the Award.

Note: Ai Group acknowledges that the Commission has determined that the note will be included in all exposure drafts and does not object to its inclusion.

At clause 12.2 and at Schedule C there is a note that the hourly rates for oil distribution workers are to be considered by a Full Bench in AM2016/32. NatRoad submits that this matter is no longer pressed by the TWU, and there were no submissions made by the TWU on this issue in its main substantive submission in proceedings in relation to this Award.NatRoad does not believe that the ordinary hours or the hourly rates for oil distribution workers remain in contention and asks that these notes be deleted. Note: The TWU rejects the proposition that the hourly rate for oil distribution workers is not being pressed and submits that it remains a live issue.

[156] ARTIO ‘generally supports’ NatRoad’s submissions and makes the following additional points:

(i) ARTIO notes that ‘employee handling money’ is defined in the exposure draft but submits it would be better defined as ‘handling money’ and omitting the word ‘employee’ this would make it clearer and simpler. Also, it is not clear as to what time period is covered by the amount of money handled- is it a day, week, month or occasion? It has been generally accepted that it is per week so it could be easily addressed by inserting the words ‘per week’ after ‘For any amount handled’ in the top left-hand box.

Note: Ai Group would support any variation to clarify that the weekly allowance is only payable when an employee handles money in the relevant week. The variation to the table proposed by ARTIO appears to be intended to clarify this point and would be an improvement to the current wording.

An alternate way of addressing the issue would be to insert the following wording below the heading of clause 13.3(e) and above the table:

An employee handling money will be entitled to a weekly allowance in accordance with the following table, based on the highest amount of money that they are required to handle in a given week: …

ARTIO has proposed deleting the word ‘employee’ from the definition. Ai Group submits this variation seems unwarranted and potentially problematic given the current definition in the exposure draft matches the words of the clause 13.3.

(ii) In clause 15.3 Shift Allowances the amount paid to shift-workers for working ‘ordinary hours’ is a defined as a percentage of the ‘ordinary hourly rate’ so the ‘ordinary hourly rate’ for shift-workers becomes confusing, especially when calculating overtime in Clause 15.5 when payment is made at 150% or 200% respectively, of the ‘ordinary hourly rate. ARTIO submits this could be construed to mean the ‘loaded shift rate’ which would totally contradict the well-established practices in the industry- whereby the shift allowance is not included when calculating overtime payments to shift-workers. ARTIO contends that this should be clarified by stating that the shift allowances are not included in overtime calculations.

Note: Ai Group notes that ARTIO’s submissions do not appear to appreciate that the term ‘ordinary hourly rate’ is defined in the exposure draft and would not include the shift loadings.

(iii) ARTIO submits that clause 15.4 can create confusion around whether or not the casual loading and shift loadings are cumulative, that is, is the 25% for the casual loading calculated on top of the loaded shift rate or is the 25% obtained from the ‘minimum hourly rate’ specified in clause 12.1. ARTIO submits that it ‘is well understood that the ‘minimum hourly rate’ approach is the accepted custom and practice in the transport industry’ and that this should be made very clear in the wording by inserting the words ‘which is calculated from the minimum hourly rate in clause 12.1’ after the figure of ‘25%’ in clause 15.4.

Note: Ai Group submits that clause 15.4 of the exposure draft provides that the 25% casual loading is calculated ‘in addition to the shift loading specified in clause 15.3’ (emphasis added) and this arguably already addresses ARTIO’s concern.

In the interests of clarity, there may however be merit in amending clause 15.3 to include a reference to the rate upon which the 25% loading is calculated. Clause 6.5(c) of the exposure draft indicates that this would be the ‘ordinary hourly rate.’

Ai Group submits that ARTIO’s proposed variation to include a reference to ‘minimum rates’ in clause 15.4 would be inconsistent with the approach proposed in clause 6.5(c) to the application of the 25% casual loading

Group 3

[157] No contested issues have been identified in the submissions in relation to the following Group 3 awards:

Subgroup 3A:

•  Banking, Finance and Insurance Award 2010

•  Business Equipment Award 2010

•  Commercial Sales Award 2010

•  Labour Market Assistance Industry Award 2010

•  Legal Services Award 2010

•  Market and Social Research Award 2010

•  Miscellaneous Award 2010

•  Real Estate Industry 2010

•  Sporting Organisations Award 2010

•  Telecommunications Services Award 2010

Subgroup 3B:

•  Educational Services (Post-Secondary Education) Award 2010

•  Higher Education – General Staff Award 2010

•  Higher Education – Academic Staff Award 2010

•  Local Government Industry Award 2010

•  State Government Agencies Award 2010

Subgroup 3C:

•  Coal Export Terminals Award 2010

•  Dredging Industry Award 2010

•  Electrical Power Industry Award 2010

•  Marine Towage Award 2010

•  Port Authorities Award 2010

•  Ports, Harbours and Enclosed Water Vessels Award 2010

•  Seagoing Industry Award 2010

Subgroup 3D:

•  Gardening and Landscaping Services Award 2010

•  Horticulture Award 2010

•  Nursery Award 2010

•  Silviculture Award 2010

•  Sugar Industry Award 2010

•  Wine Industry Award 2010

[158] The outstanding contentious issues relate to the:

Sub group 3A:

•  Clerks Private Sector Award 2010

•  Contract Call Centres Award 2010

•  Fitness Industry Award 2010

Subgroup 3B:

•  Educational Services (Schools) General Staff Award 2010

Subgroup 3D:

•  Pastoral Award 2010

[159] The issues in relation to each of these awards are summarised below:

Clerks Private Sector Award 2010

[160] The Commission issued a Statement 80 on 30 August 2019 concerning clauses 23 and 31 of the plain language exposure draft of the Clerks Award and correspondence received by the Commission from Mr Peter Farrell of Haelius Limited pertaining to these clauses. Ai Group filed a submission in response and submits that the Commission should not amend the PLED in response to the issues raised by Mr Farrell.

[161] The 30 August 2019 Statement noted that this issue will be determined by the Plain Language Full Bench on the papers unless a request for an oral hearing was filed by 4pm on Friday 27 September 2019. No such request was received.

[162] This issue will be determined by the Plain Language Full Bench on the papers and will not be the subject of submissions at the hearing on 9 October 2019.

Contract Call Centres Award 2010

[163] In its submission the CPSU notes that Schedule B.2.3 deals with overtime for casual employees an submits ‘we believe this to be accurate’.

[164] The rates in Schedule B.2.3 apply to casual employees performing overtime. The rates are calculated on the basis that such employees are entitled to the casual loading in addition to overtime rates. Ai Group contends that the casual loading is not payable during overtime under the current award and that the rates contained in Schedule B.2.3 are the result of an administrative error.

[165] Ai Group’s submission canvasses the procedural history in relation to this matter.

[166] The CPSU will be invited to respond to Ai Group’s submission at the hearing and to identify which provision in the current award supports the basis upon which the rates are calculated in Schedule B.2.3. Absent any submission by the CPSU the exposure draft will be amended to reflect Ai Group’s view.

Fitness Industry Award 2010

[167] HMT Consulting made a number of points regarding the application, or otherwise, of the overtime provisions to casuals. These submissions will be directed to the Full Bench hearing AM2017/51 and will not be the subject of oral submissions at the hearing on 9 October 2019.

Educational Services (Schools) General Staff Award 2010

[168] Independent Schools Victoria (ISV) makes a submission in relation to the definition of a ‘night shift’ in clause 15. In short, ISV is of the view that the multiple spreads of ordinary hours in clause 9.5 of the Award and definition a ‘night shift’, in clause 15.1(c) as finishing at 6am, irrespective of the starting time of the relevant spread of ordinary hours, has created a situation where an overnight shift cannot be defined as a night shift in some circumstances.

[169] ISV proposes a variation to clause 15.1(c) as follows:

‘(c)’ night shift is a shift which is not a day shift and which finishes after midnight and at or before the commencement of the relevant spread of ordinary hours identified in clause 9.5, which may be varied by clause 9.6.’

[170] At the hearing on 9 October 2019 the IEU will be invited to outline their position in respect to the ISV’s proposed variation. If the proposal is contested it will be referred to a separate, substantive issues, Full Bench.

Pastoral Award 2010

[171] ABI and the NFF both submit that an issue in relation to the meal break allowance remains outstanding. ABI agree with the Full Bench’s provisional view expressed in [2017] FWCFB 3433 at [153]-[154]. A further decision will be issued in relation to this issue in due course.

[172] The NFF also submit that they remain of the view that the redraft of clause 30.2 of the Exposure Draft constitutes a substantive change to the award. The Award current provides, at clause 35.1, that:

If an employee works less than 38 hours in one week of any four week period then the employer will use its best endeavours to ensure that the employee is paid for 38 hours work during any such week.

[173] The equivalent ‘plain language’ redraft provides at clause 30.2 that:

If an employee works less than 38 hours in one week in a four week period, then the employer must pav the employee for 38 hours work for that week.

[174] This issue was considered in [2018] FWCFB 6368 and at [47] the Full Bench expressed the view that:

The wording of clause 30.2 of the plain language re-draft has been amended because the current clause is vague and aspirational in nature and does not provide an enforceable entitlement to an employee or an obligation on an 49.l(c) employer. In previous decisions, the Commission has declined to vary awards to insert provisions which may be characterised as ‘aspirational’ and which have little or no work to do. On this basis we have decided not to revert to the current award wording.

[175] NFF submit that this redraft goes beyond a mere technical or drafting issue and creates a right which is qualitatively and substantially different. If read literally this change has ramification for, inter alia, the payment of part-time employees. As set out above, a Full Bench has already considered this issue and we do not propose to deal with it further now.

[176] The NFF submit that the exposure draft which the Commission published on 2 November 2017 provided for a shearing shed expert to be paid a loading of:

‘2.630% of the appropriate minimum weekly hourly rate.’

[177] However, the NF submits the current exposure draft provides for a shearing shed expert to be paid a loading of ‘2.63% of the appropriate minimum weekly rate’. It is not clear which language is consistent with the decision which the Commission is said to have expressed on 06 July 2017 in [2017] FWCFB 3433 at [110]- [122]. We confirm that the appropriate rate is ‘2.63% of the appropriate minimum weekly rate’ from the Exposure Draft published in March 2019.

Group 4

[178] No contested issues have been identified in the submissions in relation to the following Group 4 awards:

Subgroup 4A:

•  Aboriginal Community Controlled Health Services Award 2010

•  Aged Care Award 2010

•  Children’s Services Award 2010

•  Supported Employment Services Award 2010

Subgroup 4B:

•  Air Pilots Award 2010

•  Airline Operations—Ground Staff Award 2010

•  Airport Employees Award 2010

Subgroup 4C:

•  Hydrocarbons Field Geologists Award 2010

•  Joinery and Building Trades Award 2010

•  Mobile Crane Hiring Award 2010

•  Plumbing and Fire Sprinklers Award 2010

•  Surveying Award 2010

Subgroup 4D:

•  Amusement, Events and Recreation Award 2010

•  Book Industry Award 2010

•  Broadcasting and Recorded Entertainment Award 2010

•  Journalists Published Media Award 2010

•  Racing Clubs Events Award 2010

•  Travelling Shows Award 2010

Subgroup 4E:

•  Car Parking Award 2010

•  Cemetery Industry Award 2010

•  Food, Beverage and Tobacco Manufacturing Award 2010

•  Funeral Industry Award 2010

•  Pest Control Industry Award 2010

•  Professional Employees Award 2010

•  Water Industry Award 2010

Subgroup 4F:

•  Dry Cleaning and Laundry Industry Award 2010

•  Fast Food Industry Award 2010

•  General Retail Industry Award 2010

•  Hair and Beauty Industry Award 2010

•  Hospitality Industry (General) Award 2010

•  Mannequins and Models Award 2010

•  Restaurant Industry Award 2010

[179] The outstanding contentious issues relate to the:

Subgroup 4A:

•  Educational Services (Teachers) Award 2010

•  Social, Community, Home Care and Disability Services Industry Award 2010

Subgroup 4B:

•  Aircraft Cabin Crew Award 2010

Subgroup 4C:

•  Architects Award 2010

•  Building and Construction General On-site Award 2010

•  Electrical, Electronic and Communications Contracting Award 2010

Subgroup 4D:

•  Live Performance Award 2010

Subgroup 4F:

•  Registered and Licensed Clubs Award 2010

[180] The issues in relation to each of these awards are summarised below:

Educational Services (Teachers) Award 2010

[181] Clause 31 redundancy of the exposure draft contains the notation that the redundancy provisions in this award will be the subject of further consideration by the Plain Language Full Bench (see [2019] FWCFB 6439).

[182] The Associations of Independent Schools (the Associations) have made a submission directed at clause 31. This submission will be referred to the Plain Language Full Bench and will not be subject of oral submissions at the hearing on 9 October 2019.

[183] After Schedule A.2.12 in the Exposure Draft, the Commission has asked the following question:

“Parties are asked whether a system of RDOs may apply to employees in services operating for less than 48 weeks per year. If so, should clause A.2.12 be moved to clause 15?”

[184] The IEU submits:

‘Clause A.2.12 provides for a system of RDO’s to apply to employees working less than 48 weeks per year. As Schedule A is clearly intended only to prescribe entitlements for employees of services operating for at least 48 weeks per year the IEU has no objection to moving clause A.2.12 to clause 15.’

[185] The Associations take a different view and contend that Schedule A.2 should not be relocated to clause 15 ‘as it has no application to the work of a teacher in a school setting.’

[186] It is appropriate for Schedule A.2 to remain in Schedule A. Relocating Schedule A.2 to clause 15 would require additional explanation to make it clear that it does not apply other than in an early childhood service operating for 48 weeks or more in a year.

Social, Community, Home Care and Disability Services Industry Award 2010

[187] The exposure draft includes two notes at Clause 15.1 referring the reader to the transitional pay equity order and an equal remuneration order [PR525485], which provide for different rates of pay for certain employees covered by classifications in Schedules B and C of the SCHDS Award.

[188] The exposure draft includes a comment that the note at 15.1 will be referred to the substantive Full Bench for consideration. The ASU submits that this comment is incorrect; the issue has already been decided by a Full Bench. (See [2018] FWCFB 4175 at [390]-[400].

[189] Further, the ASU submits that the words ‘This may require an additional payment in accordance with the terms of the transitional pay equity order’ which have been inserted at Note 2 are misleading. Both the transitional pay equity order and the equal remuneration order may require an additional payment. The ASU proposes that the new words at Note 2 should be deleted and we propose that the exposure draft should be amended to include the following new note 3:

‘3. An additional payment in accordance with the terms of the transitional pay equity order or the equal remuneration order may be required.’

[190] National Disability Services (NDS) broadly agrees with the ASU regarding the notes at clause 15.1 but propose some alternate wording.

[191] Employees covered by the classifications in Schedules B and C may be covered by an Equal Remuneration Order (ERO) [PR525485], or by a Transitional Pay Equity Order. The two instruments are separate but the NDS submits that the draft note 2 implies the terms are interchangeable.

[192] NDS proposes that Note 1 should have the following words added at the end of the note:

‘and may apply to employees in the classifications in Schedules B and C of this modern award.’

[193] It also proposes that the new words in Note 2 should be deleted and Note 2 should have the following words added at the end of the note:

‘unless a transitional pay equity order has effect.’

[194] Note 2 at Clause 15.1 refers to Schedules A and C. The NDS submits that the correct references in the current exposure draft would be Schedules B and C. If the current Schedule A is deleted as proposed in the exposure draft, then NDS anticipate that renumbering would change these to Schedules A and B.

[195] NDS agrees with the ASU that a new Note 3 should be added, but propose amendments to the ASU wording (changes underlined) to assist with clarity as follows:

‘3. An additional payment in accordance with either the applicable transitional pay equity order or the applicable equal remuneration order may be required.’

Aircraft Cabin Crew Award 2010

[196] The Flight Attendants’ Association of Australia (FAAA) make a range of submissions about the exposure draft.

[197] Ashurst, on behalf of the Qantas Group, have filed a submission in response.

[198] Given the extensive number of issues canvassed in the submissions these matters will be the subject of a separate conference before Commissioner Bissett.

[199] The issues in respect of this exposure draft will not be the subject of oral submissions at the hearing on 9 October 2019.

Architects Award 2010

[200] Platinum Employee Relations (Platinum) seeks the insertion of the following at Schedule B, Summary of Hourly rates of Pay:

B.3 Students of Architecture

Students of Architecture shall be paid the following percentage of the first year Graduate of

Architecture rate of payment:

% of Level 1 – first year rate

For Employees over 21

*For Employees under 21

B.4 Casual Employees

For Employees over 21

*For Employees under 21

[201] At the hearing on 9 October 2019 Platinum will be asked to explain the reason for the proposed change.

[202] The Architects Accreditation Council of Australia submits that as the National Standard of Competency for Architects has been updated clause 15.2 of the Award should be updated to ‘reflect aspects of the National Standard of Competency for Architects to support graduates of Architecture progress towards obtaining mandatory experience based on the Prescribed Competencies for registration.’

[203] The issues raised in this submission will be referred to the Full Bench constituted to deal with the substantive claims in relation to the Architects Award.

•  and Construction General On-site Award 2010

[204] ABI identifies two issues in relation to the exposure draft:

(i) the table in clause C.1.2 of Schedule C sets out the hourly allowance payable when engaged in swing scaffold work. The first aspect of the allowance is the amount payable for the first four (4) hours of work. The second aspect of the allowance is that amount payable for each hour in excess of the first four (4) hours. Whilst the table makes it clear the amount payable for the first four (4) hours, ABI consider the wording in the fourth column of the table for ‘additional hours’, to be less clear. In this regard, ABI submit that the following wording should be inserted into the fourth column in relation to Swing Scaffold Allowance- Each Additional Hour, ‘$X for each additional hour after the first 4 hours’; and

(ii) the table in clause C.1.2 of Schedule C sets out the allowances payable for Toxic Substances. The allowance is payable in two circumstances, namely when a person is using toxic substances and when a person is working in close proximity to employees using toxic substances. ABI consider that the current drafting of the allowance in the table is uncertain because it does not clearly distinguish between the two circumstances. In this regard, ABI submit that the rows in the table relating to toxic substances should be replaced with the following:

[205] Interested parties will be invited to comment on ABI’s proposed changes at the hearing on 9 October 2019.

Electrical, Electronic and Communications Contracting Award 2010

[206] ABI identifies a number of issues in relation to Schedule C and clause 17. Ai Group and the CEPU do not oppose ABI’s submission at paragraph 1.4.

[207] The Master Electricians Australia (MEA) makes a submission in relation to Schedule B – Summary of Hourly Rates of Pay and, in particular, the definition of ordinary hourly rate at B.2.1. MEA proposes the following amendment:

‘Ordinary hourly rate includes the industry allowance and for grade 5 and higher classifications, the tool allowance and electricians licence allowance payable to all employees for all purposes. Any additional all-purpose allowances applicable need to be added to these rates.’

[208] The CEPU does not oppose the MEA’s proposal as long as the rates provided in the table are adjusted to include the electricians licence allowance.

[209] Ai Group do not consider the changes proposed by MEA are necessary and, further, do not agree with MEA’s submission regarding apprenticeship rates.

Live Performance Award 2010

[210] An Exposure Draft for the Live Performance Award was published by the Commission on 5 April 2019. On 27 June 2019, the Media, Entertainment and Arts Alliance and Live Performance Australia filed an agreed draft award. 81

[211] A conference will be convened by the President to discuss the issues raised. The Live Performance Award will be moved to Tranche 3 of the finalisation process.

Registered and Licensed Clubs Award 2010

[212] The Exposure Draft for the Registered and Licensed Clubs Award was published on 15 April 2019. Prior to this, the Exposure Draft had not been published since 22 November 2016 as there was an application by Clubs Australia – Industrial, to revoke the Clubs Award being considered as part of the Penalty Rates case (see AM2017/39). Having regard to those proceedings, the Group 4 Full Bench decided to defer consideration of the outstanding claims in the Clubs Award until after the claims in the Penalty Rates case had been determined.

[213] In response to a question in the Exposure Draft, United Voice submit that clause 13.1 applies to both junior waiters and junior kitchen hands and that the relevant distinction is whether liquor is sold at the workplace or not. 82 They submit further that junior waiter delivering liquor to tables and/or taking payment for liquor is engaged in the service of alcohol. All states and territories require that employees serving, selling or supplying alcohol acquire and maintain specific qualifications and skills (such as a responsible service of alcohol qualification). These employees could also face significant penalties for breaching responsible service of alcohol requirements. United Voice note that a claim to exclude junior employees who were wait staff from excluding adult wages was considered and rejects in the Restaurant Award.83

[214] Clubs Australia Industrial do not agree with United Voice and submit that the adult rate referred to in clause 13.1 only applies to the employee delivering liquor to tables. The current Award clause states, ‘Junior employees employed in the bar or other places where liquor is sold must be paid at the adult rate ... ‘ CAI’s position is that this does not mean any venue that sells liquor is required to pay adult rates for all employees. Rather, employees working in a ‘bar or other place where liquor is sold’ within a venue are entitled to the adult rate. 84

[215] United Voice propose an amendment to the final sentence of clause 18.2 of the Exposure Draft to clarify the application of the first aid allowance as follows:

‘An employee’s ordinary rate of pay is inclusive of the award rate set out in this clause and the additional allowance (where applicable) for first aid set out in clause 19.2(b).’

[216] CAI agree that the first aid allowance is included in the employee’s rate of pay, where applicable. 85

[217] United Voice submits that the rate in clause 18.4 of the Exposure Draft is only inclusive of the 25% casual loading and does not include an amount in respect of penalty rates. Clause 29.1 of the current Award provides for weekend and public holiday penalty rates for employees other than maintenance and horticultural employees and clause 29.4 provides for late and early work penalties for employees other than maintenance and horticultural employees. Casual fitness instructors are not excluded from these provisions and therefore are entitled to penalty rates. They submit that the minimum hourly rate of a casual fitness instructor should be disaggregated from the casual loading and stated within the Award. This would make it easier for employees and employers to calculate penalty rates for casual fitness instructors.

[218] CAI submit that the loaded rate in clause 18.4 is an all inclusive rate. This matter was dealt with in Matter No. AM2010/221 in which Vice President Watson confirmed the position that the rate encompasses all allowances (PN61). To remove ambiguity, CAI propose the following amendment which they say is consistent with the Club Employees (State) Award:

(a) Minimum hourly rate-$47.72 inclusive of the 25% casual loading in clause 11.2. No penalty or weekend payments of any type will apply.

[219] United Voice submit that clause 19.3(c) (i) contains specific provisions for cooks and maintenance and horticultural employees in respect of tools only. Clause 19.3(c) (ix) refers to a wider range of equipment and would apply in circumstances in which clause 19.3(c)(i) is not relevant.

[220] CAI submits that subclause 19.3(c)(ix) can apply to employees other than cooks and maintenance and horticultural employees. To remove ambiguity and reduce the risk of double-dipping, CAI propose the following change to subclause 19.3(c)(ix):

(ix) Where the employer requires an employee to provide and use any towels, tools, ropes, brushes, knives, choppers, implements, utensils and materials, the employer must reimburse the employee for the cost of purchasing such equipment. The provisions of this clause do not apply where these items are supplied by the employer, or where an employee is supplying their own tools in accordance with subclause 19.3(c)(i).

[221] In response to a question from the Commission about whether the late and early work penalty in clause 24.4 applies on a pro rata basis, United Voice submit that this penalty is not paid on a pro rata basis. CAI disagree and submit that the penalties are payable on a pro-rata basis. Specifically, the inclusion of ‘for such time worked’ within subclauses 24.4(a) and (b) allows the percentage to be calculated on only the time worked, and not an entire hour.

PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR713067>

Attachment 1—List of modern awards—by sub-group

Group 1 (30 awards)

Group 2 (19 awards)

Group 3 (33 awards)

Group 4 (40 awards)

ATTACHMENT 2 – complete list of submissions

 1   The exposure drafts for Fire Fighting and Nurses were published on 22 February 2019

 2   The exposure drafts for Pastoral and Horticulture were published on 15 March 2019

 3   The exposure drafts for Mannequins, Registered and Licensed Clubs, Fast Food and General Retail were not published in line with this process. The exposure draft for Live Performance was published on 5 April 2019.

 4   [2019] FWCFB 6077

 5   Aged Care Employers submission, 15 April 2019 at paras 8-9 regarding typographical error at clause 32.1(e)

 6   FAAA submission, 23 April 2019 at para 18 regarding typographical error at Sched B.1.2(a)

 7   AMWU submission, 5 April 2019 at para 11 regarding cross referencing error at clause 29A.6(b)

 8   ABI submission, 12 April 2019 at para 3.1(a) regarding cross referencing error at Sched C.1.1

 9   ABI submission, 29 March 2019 at para 9 regarding typographical error at clause 7.8

 10   United Voice submission, 13 March 2019 at p.1 regarding typographical error at example 1 - clause 23.3

 11   Submission of HMT Consulting, levels 1 and 2 of the Classification Definitions in Schedule A are to be varied to reflect the Full Bench decision in [2018] FWCFB 3914.

 12   ABI submission, 15 March 2019 at para 7 regarding typographical error at clause 24.9(j)

 13   ABI submission, 15 March 2019 at para 9 regarding repeated words ‘or in an emergency’.

 14   Group of 8 Universities submission, 5 April 2019. The Group of Eight Universitys submission identifies typographical errors at clauses 5 and 9.2(b)(v). It also notes that the reference in clauses 15.3 and 16.5 to ‘clause 9.2(b)(ii) are incorrect and should be to ‘clause 9.2(b)(iii)’.

 15   AHA submission, 26 April 2019 at p.1 regarding typographical errors at clauses 6A.3 and 15.1(d)

 16   ABI submission, 12 April 2019 at para 4.1(a) regarding cross referencing error at Sched C.1

 17   CPSU submission, 29 March 2019 at para 3 regarding formatting error at clause 8.4(b)

 18   LGA submission, 5 April 2019 at para 9-10 regarding cross referencing error at clause 23.6

 19   ABI submission 13 March 2019 at paras 16 and 17, amending Note 2 a clause 31.7 and the two Notes t clause 31.13 to read ‘the Act’, rather than the Fair Work Act consistent with other changes that have been made to the exposure draft.

 20   CFMMEU submission, 13 March 2019 regarding typographical error at clause 7.1(c);

 21   AMIEU submission, 15 March 2019 at para 15 regarding typographical error at clause 8.3(d)

 22   ABI submission, 12 April 2019 at paras 5.1-5.2 regarding cross referencing errors at clause 27A.7(a) and Sched C.1

 23   ANMF submission, 27 March 2019 at paras 1-2 2 regarding typographical errors at clauses 3.3, 15.3(b) and (c); ABI submission, 15 March 2019 at paras 10-12 regarding a formatting error at clause 8.2(f) and typographical errors at clauses 15.5(a), 15.5(b), 15.6(a) and 15.6(b)

 24   ABI submission, 29 March 2019 at para 25 and NFF submission at p.1 regarding cross referencing error at clauses 6.7(b)(i) and 30.1(a)

 25   ABI submission, 13 March 2019 at para 27 regarding typographical error at clause 3.2

 26   ABI submission, 12 April 2019 at paras 2.1-2.2 regarding cross referencing error at clause 27A.7(a) and typographical error at Sched F.1.1

 27   REEF submission, 27 March 2019 and RESA submission 1 April 2019 regarding a number of formatting and typographical errors

 28   NatRoad submission, 4 March 2019 at paras 6, 7 14 and 15 regarding typographical and formatting errors at clauses 3.3, 6.3, 11A.1 and 11.7

 29   AMWU submission, 13 March 2019 at para 7 regarding typographical error at 12.3(c)

 30   ABI submission, 13 March 2019 at paras 50-51 regarding typographical error at Sched C.3.2 and cross referencing error at Sched F.5.8 at paras 46-49

 31   ABI submits that the numbering of clause 19 appears to be inconsistent with both the relevant determination (PR606396) and the usual numbering in modern awards generally. The CFMEU-MD agrees with ABI. Ai Group also agrees with ABI. Subclauses 19(a) and 19(b) will be renumbered 19.1 and 192.

 32   CMIEG submission, 12 March 2019 at p.1

 33   CMIEG submission, 12 March 2019 at p.1

 34   See item 20 of the summary of submissions document published 22 March 2018

 35   ABI submission, 13 March 2019 at paras 14, see also item 22 of the summary of submissions document published 22 March 2018

 36   CFMMEU – MUA Division submission, 13 March 2019 at p.1

 37   AMIEU submission, 15 March 2019 at 14.

 38   Ai Group submission, 23 September 2019 at 54.

 39   [2017] FWCFB 3433

 40   Ai Group submission, 23 September 2019 at 66.

 41   ABI submission, 13 March 2019 at paras 43-45

 42   Ai Group submission, 23 September 2019 at 122.

 43   ABI submission, 13 March 2019 at 46-48.

 44   Ai Group submission, 23 September 2019 at 124.

 45   CFMMEU (Manufacturing Division) submission. 27 September 2019 at 12.2

 46   [2018] FWCFB 7350 and [2019] FWCFB 120

 47   HSU submission, 1 April 2019 at para 4

 48   ABI submission, 15 March 2019 at paras 23-25

 49   Ai Group submission, 23 September 2019 at 112.

 50   Ai Group submission, 23 September 2019 at 99.

 51   Ai Group submission, 23 September 2019 at 100.

 52   ARTIO submission, 8 March 2019 at para 3(a)(i); ABI submission, 15 March 2019 at 26

 53   CPSU submission, 29 March 2019 at 4

 54   AIMPE submission, 12 March 2019 at p.1

 55   Sea Swift submission, 8 April 2019 at p.1

 56   ABI submission, 29 March 2019 at 28-29

 57   ABI submission, 29 March 2019 at 30-31

 58   Ai Group submission, 23 September 2019 at 113-114

 59   SAWIA submission, 5 April 2019 at p.3

 60   See Report to Full Bench, Wine Industry Award 2010 at [18]

 61   ABI submission, 29 March 2019 at paras 10-13

 62   [2017] FWCFB 3433

 63   ABI submission, 29 March 2019 at paras 10-13

 64   AMWU submission dated 5 April 2019

 65   CPSU submission, 12 April 2019 at 3

 66   CFMMEU-MUA Division submission, 13 March 2019 at p.1

 67   CFMMEU-MUA Division submission, 13 March 2019 at p.1

 68   CFMMEU-MUA Division submission, 13 March 2019 at p.1

 69   [2019] FWCFB 6067

 70   ABI submission, 13 March 2019 at paras 33-36

 71   ASIAL submission, 4 March 2019 at paras 1-7

 72   [2019] FWC 932

 73   AMIEU submission 15 March 2019 at paras 8-10 and ABI submission, 13 March 2019 at paras 18-23

 74   Ai Group submission in reply, 23 September 2019

 75   Ai Group submission, 23 September 2019 at 48.

 76   Ai Group submission, 23 September 2019 at 52.

 77   AMIEU submission, 15 March 2019 at paras 6-7

 78   Ai Group submission, 23 September 2019 at 79.

 79   Ai Group submission, 23 September 2019 at 75.

 80   [2019] FWC 6058

 81   MEAA submission, 27 June 2019

 82   United Voice submission, 10 May 2019 at 3-9

 83   [2018] FWCFB 7263

 84   Clubs Australia Industrial submission. 17 May 2019 at 6-8

 85   Clubs Australia Industrial submission. 17 May 2019 at 10