DECISION

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 – resolution of issues in relation to exposure drafts published February and March 2019

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 where each award is being reviewed in its own right.

[2] A decision published on 2 September 2019 1 (the September 2019 Decision) provided an overview of the status of the first 4 yearly review of modern awards and set out the process for finalising the exposure drafts and the consequent variation of each modern award. This Full Bench has been constituted to oversee this process (AM2019/17).

[3] During the award stage of the Review, modern awards were divided into 4 groups. 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  2

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

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

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 4

[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. In the September 2019 decision we 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 1.

[7] On 8 October 2019 we published a Statement 5 (the October 2019 Statement) in which we addressed some minor corrections to the February/March exposure drafts noted in the submissions and expressed some provisional views. A hearing took place on 9 October 2019 in Sydney to provide parties with an opportunity to make oral submissions in relation to the October 2019 Statement and the issues identified in the submissions.

2. Correcting Minor Errors

[8] The submissions identify some minor typographical errors or omissions in the following exposure drafts:

•  Aged Care Award 6

•  Aircraft Cabin Crew Award 7

•  Airport Employees Award 8

•  Building Award 9

•  Business Equipment Award 10

•  Cleaning Services Award 11

•  Fitness Award 12

•  Graphic Arts Award 13

•  Health Professionals 14

•  Higher Education – General Staff Award 15

•  Hospitality Award 16

•  Joinery Award 17

•  Labour Market Assistance Award 18

•  Local Government Award 19

•  Manufacturing Award 20

•  Maritime Offshore Oil and Gas Award 21

•  Meat Industry Award 22

•  Mobile Crane Hiring Award 23

•  Nurses Award 24

•  Pastoral Award 25

•  Poultry Processing Award 26

•  Plumbing and Fire Sprinklers Award 27

•  Real Estate Award 28

•  Road Transport (Long Distance Operations) Award 29

•  Seafood Processing Award 30

•  Textile Award 31

•  Timber Award 32

[9] Any party who wished to contest the variation of these exposure drafts to address the minor errors identified was invited to make a submission at the commencement of the hearing on 9 October 2019. It was made clear in the October 2019 Statement that absent any opposition we would amend the exposure drafts to address these issues.

[10] There was no opposition to the variation of these exposure drafts to address the identified errors. We will amend the exposure drafts to correct these errors.

[11] Two further minor corrections were the subject of submissions during the hearing on 9 October 2019. The first concerns the Real Estate Award. Ms O’Neil, for the Real Estate Employers’ Federation raised a minor error in clause 10.4(a). The cross references in that subclause are incorrect and they should refer to clauses 10.2 and 10.3. There was no opposition to the proposed correction.

[12] The second minor error concerns the Hospitality Award and the definition of ‘Hospitality Industry’ in clause 2. The error sought be corrected is the insertion of the word ‘in’ as follows:

‘Hospitality Industry is defined in clause 4.2’

[13] There was no opposition to the proposed correction.

[14] We will amend the relevant exposure drafts to correct these errors.

3. Confirming the Provisional views

[15] In the October 2019 Statement we expressed a number of provisional views. Interested parties were given an opportunity to contest these provisional views at the hearing on 9 October 2019. One of the provisional views, in relation to the Pharmaceutical Industry Award 2010, was contested. We return to that matter shortly. We confirm and adopt the provisional views set out at [11] – [29] and [35] – [99] of the October 2019 Statement and will amend the exposure drafts as set out below.

Group 1 Awards

Black Coal Mining Industry Award 2010

[16] The exposure draft will be varied 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.’

Concrete Products Award 2010

[17] Clause 13.3(e) of the exposure draft will 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.

[18] Further, the entirety of clauses 13.4(c) and (d) will be deleted.

Maritime Offshore Oil and Gas Award 2010

[19] Clause 7.2 of the exposure draft will be varied as follows:

‘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.’

Poultry Processing Award 2010

[20] 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’

[21] The cross reference in clause 8.2(b) will be changed from 21.2 to 22A.

[22] The definition of poultry processing industry in Schedule G 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.

[23] Clause 4.2 will contain the complete definition.

Security Services Industry Award 2010

[24] The example under clause 23.4(e) will be deleted.

Textile, Clothing, Footwear and Associated Industries Award 2010

[25] The cross reference in F.5.8 will be amended to ‘clauses 29.1 and 29.2’.

[26] Footnote 1 to the table in clause C.3.2 will be amended to read: ‘Payment per shift in addition to applicable ordinary hourly rate’.

Group 2 Awards

Health Professionals and Support Services Award 2010

[27] The words ‘day worker’ be removed from the heading at clause 18.1.

Storage Services and Wholesale Award 2010

[28] The definition of ‘storage services and wholesale industry’ will be inserted into clause 3.2 Coverage.

Road Transport and Distribution Award 2010

[29] Clause 13.3(b)(ii) will be 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.

[30] The allowances and clause references listed in the table at clause D.1 will be updated accordingly.

[31] The definition of Transport Worker Grade 10 will be amended to read:

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

Waste Management Award 2010

[32] The public holiday percentages in Schedule A.2.1 will be updated and a footnote added to the table of hourly rates at A.2.1, as follows:

‘Payment for work on a public holiday is in addition to any amount payable in respect of the weekly wage (see clause 21.5(b)).’ 33

Group 3 Awards

Gardening and Landscaping Award 2010

[33] The definition of public holiday will be deleted from the definitions schedule.

Local Government Industry Award 2010

[34] Clause 10.5(a) will 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.’

Sugar Industry Award 2010

[35] We confirm that the facilitative provision in clause 26.10(d) requires agreement between an employer and the majority of employees. We also confirm the amendment made in the exposure draft to the description in the table in Schedule E in relation to clause 16.1(v)(iii).

Wine Industry Award 2010

[36] The structure of the leading hand clause in the exposure draft (clause 16.2(a)) will 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).

[37] The heading to the tables in Schedules B.1.1 and B.2.1 will be amended as follows:

Saturday – cellar door or vineyard (vintage only see clauses 8.6(a)(ii) and (b)).

Commercial Sales Award 2010

[38] None of the definitions (i.e. commercial traveller, merchandiser or advertising sales rep) will be included in the coverage clause, as they are not ‘industry definitions’ and should only appear in the definitions schedule.

[39] Clause 9.2 will be amended to delete the word ‘adult’ from the introductory words, as shown below:

‘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.’

[40] The summary tables in clauses A.1.1, A.1.2, A.2.1, A.3.1, A.3.2 and A.3.3 will be updated to refer to ‘Other than travelling’ rather than ‘soliciting others’.

Group 4 Awards

Aboriginal Community Controlled Health Services Award 2010

[41] The following definitions will be removed from clause 2:

(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,

[42] The exposure draft will be updated, if necessary, once the Full Bench in AM2018/12 has determined the issue before it.

[43] All references to ‘Aboriginal’ will be replaced with the term ‘Aboriginal and/or Torres Strait Islander’ in accordance with the Full Bench decision in [2018] FWCFB 1548 at [24].

Aged Care Award 2010

[44] Clause 22.2(a) will be amended 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: …

Airport Employees Award 2010

[45] The heading of clause 18 will be amended to ‘Breaks – day workers’.

[46] Clause 24.11(b)(i) will be varied, 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, Recorded Entertainment and Cinemas Award 2010

[47] The exposure draft will be amended to reflect items [16], [32] and [33] of the determination (PR597597) giving effect to the decision in [2017] FWCFB 3803.

Educational Services (Teachers) Award 2010

[48] A note will be added to clause 6.1 to ensure clarity over the applicability of particular flexibility provisions to teachers employed in differing sectors of the education industry.

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

[49] The note at clause 15.3 will be deleted.

Hospitality Industry (General) Award 2010

[50] The tables in Schedule B will be amended to replace the public holiday overtime rate for full-time and part-time employees of 250% with 225%.

[51] We now turn to the contested provisional view in relation to the Pharmaceutical Industry Award.

Pharmaceutical Industry Award 2010

[52] At [34] of the October 2019 Statement we expressed the provisional view that clauses 8.2(a) and 8.3(a) be amended to refer to both full-time and casual employees and 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.

[53] As mentioned earlier, this provisional view was contested at the hearing on 9 October 2019. The AWU raised a concern about the proposed variation, namely that it appeared to require or guarantee that casual employees work at least an average of 38 hours per week. It was generally agreed that there was some substance to the concern raised and it needed to be addressed. Ai Group was granted leave to consider the issue and file a note addressing it, in consultation with the AWU and ABI. This note should be filed by 4pm on Wednesday 23 October 2019. We will determine the issue on the basis of the material filed.

4. Uncontested Exposure Drafts

[54] Other than the minor errors noted earlier no contested issues have been identified in the submissions in relation to the following awards:

Group 1

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

Group 2

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

Group 3

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

Group 4

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 34

•  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

5. The Contentious Issues

[55] There are contentious issues in relation to the following exposure drafts:

Group 1

Subgroup 1A:

•  Security Services Industry Award 2010

Subgroup 1B:

•  Asphalt Industry Award 2010

Subgroup 1C:

•  Meat Industry Award 2010

•  Poultry Processing Award 2010

Group 2

Subgroup 2B:

•  Nurses Award 2010

•  Pharmacy Industry Award 2010

Subgroup 2C:

•  Road Transport (Long Distance Operations) Award 2010

•  Road Transport and Distribution Award 2010

Group 3

Subgroup 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

Group 4

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

[56] We deal with the issues in relation to each of these awards below in Group order.

Group 1

•  Services Industry Award 2010

[57] 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.’

[58] 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.’

[59] 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). 35

[60] ASIAL also submit that the variation made to the current award 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. 36

[61] At the hearing on 9 October 2019 there was general agreement that the definition of ‘monitoring centre’ be varied as set out below:

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

[62] We confirm that this variation will be made.

[63] 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, 37 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.

[64] We are not persuaded that the amendment proposed by United Voice is necessary, or particularly helpful, and we do not propose to make it.

Asphalt Industry Award 2010

[65] ABI notes 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’

[66] 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.’

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

[68] 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 provisions in the body of the exposure draft and the change proposed by ABI would require the reader to first turn to the definitions schedule and they would then be redirected to the schedules. Ai Group submits that such a ‘two step process’ is ‘unhelpful and unnecessary’.

[69] During the course of the hearing on 9 October 2019 an alternate variation to the definition of ‘casual ordinary hourly rate’ was put by ABI, as follows:

‘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’

[70] Ai Group and the AWU did not object to the proposal. We will amend the definition of ‘casual ordinary hourly rate’ as suggested by ABI.

Meat Industry Award 2010

[71] 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.

[72] The AMIEU and ABI are not opposed to the additional words being included in the exposure draft. 38 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’.39 We do not propose to include the additional words for the reasons given by Ai Group.

[73] 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. (Emphasis added)

[74] 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. (Emphasis added)

[75] 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.

[76] 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’.

[77] We agree with Ai Group and do not propose to vary clause 12.

[78] 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%.’

[79] 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.

[80] 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 40 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.

[81] We agree with Ai Group and will amend subclause 8.2 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 cleaner may be entitled to a payment under clause 17.4.

[82] 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.’

[83] The AMIEU submits that clause 33.10 of the award 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.

[84] Clause 9.4 of the exposure draft 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.’

[85] 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 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.’

[86] 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.

[87] 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. 41

[88] The AMIEU did not attend the hearing on 9 October 2019 and the written submission filed does not engage with the concerns raised by Ai Group. In these circumstances we do not propose to make the change sought by the AMIEU. The AMIEU may pursue this issue via a separate application to vary the award.

Poultry Processing Award 2010

[89] 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.

[90] 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.

[91] 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. 42

[92] Ai Group agree that the words “four hours or less during one day” should be inserted into the exposure draft. 43 However, Ai Group do not agree with the AMIEU submission about the threshold for higher duties payments.44

[93] We agree with Ai Group regarding the higher threshold point and will amend clause 10.5 of the exposure draft as follows:

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 or less during one day, must be paid the higher rate for the actual time worked at that higher level.

Group 2

Nurses Award 2010

[94] 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.’

[95] 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.’

[96] 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.

[97] 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.’

[98] 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.

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

[100] 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.

[101] 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.

[102] 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.

[103] 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.

[104] 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 their full entitlement to annual leave.

[105] 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.

[106] During the course of the oral hearing the parties present agreed that this issue does not need to be resolved in these proceedings. We agree. Clause 17.8 of the exposure draft is not intended to change the legal effect of clause 31.7 of the current award. To the extent that there is a dispute about the meaning of clause 17.8, the same issue arises under the current award term. We express no view as to the competing interpretations of clause 17.8.

Road Transport (Long Distance Operations) Award 2010

[107] Clause 3, Coverage, includes a definition of ‘long distance operation’ but does not include a definition of ‘interstate operation’. Further, both definitions are in Schedule F. The parties generally agree that it is unnecessary to duplicate the definitions. The two definitions will be moved to Clause 3 – Coverage consistent with the Full Bench decision [2017] FWCFB 3433 at [339].

[108] Clause 6.4(g) of the exposure draft states:

‘(g) A part-time employee may agree to an employer request for them to work on days other than those agreed under clause 6.4(b) or 6.4(c). A part-time employee must be paid an additional 15% on:

(i) the cents per kilometre (CPK) rates set out in clause 11.4;

(ii) the hourly driving rates set out in clause 11.5; and

(iii) any amount payable under clause 11.6;

for driving or loading and unloading work that is undertaken in accordance with an employer request on days not agreed in accordance with clause 6.4(b) or 6.4(c).’

[109] NatRoad proposes that the word ‘work’ be changed to duties, consistent with the way the expression is used in clauses 6.5(c) and 11.6. Ai Group submits that the change proposed is not necessary. Further, it submits that 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.

[110] We agree with NatRoad and clause 6.4(g) will be amended in the manner it proposes.

[111] Clause 7, Classifications, of the exposure draft includes the description N/A in relation to Grades 1 and 2 and has a note at the end of the clause, in the following terms:

‘NOTE: Grade levels in this award align with equivalent grade levels in the Road Transport and Distribution Award 2015. Grades 1 and 2 are not applicable to this award.’

[112] During the course of the hearing on 9 October 2019 there was general agreement that the expression ‘N/A’ be deleted and the Note be moved so it appears under ‘Description’ opposite to Grades 1 and 2. We agree and will amend the exposure draft accordingly.

[113] Clause 8.2(a) and 9.2 give rise to similar issues, they state:

‘8.2 Hours of work and fatigue management

(a) Where applicable, hours of work will be in accordance with Commonwealth, State or Territory laws, relating to the control of driving and working hours of heavy vehicle operators or the management of fatigue.’

9.2 The provisions of this clause do not apply where meal breaks are taken in accordance with fatigue management rules/regulations (as defined in Schedule F) as varied from time to time.

[114] NatRoad propose that clause 8.2(a) be amended, as follows:

‘(a) Where applicable, hours of work will be in accordance with fatigue management rules/regulations, (as defined in Schedule F).’

[115] In respect of clause 9.2, NatRoad proposes that the words ‘as varied from time to time’ be deleted as they are otiose, given the terms of the definition in Schedule F.

[116] The proposals to amend clauses 8.2(a) and 9.2 are not opposed. We will make the amendments proposed by NatRoad.

[117] Clause 11.1(a) of the exposure draft states:

11.1 Minimum weekly rates of pay

(a) The minimum weekly rates of pay for ordinary hours of work are as follows:

[118] NatRoad submits that having Grades 1 and 2, the applicable minimum rates, inserted and then crossed out may confuse some readers and suggest, consistent with clause 7, that the rates not appear and be replaced with:

‘These grades are not used to classify employees covered by this Award.’

[119] We agree and will amend the exposure draft accordingly.

[120] Next, NatRoad notes that clause 11.4(a) – Rates of pay – kilometre driving method sets out minimum cents per kilometre to two decimal places, whereas the rates in Schedule A are to four decimal places. NatRoad contends that the provisions should be consistent, and provide for two decimal places. Ai Group agrees.

[121] The rates in Schedule A set out the $ per km for the kilometre driving method, whereas clause 11.4(a) sets out the cents per kilometre for the same method, thus explaining the difference in the number of decimal points. There was general agreement that the two provisions be made consistent and that the rates in Schedule A be changed to cents per kilometre. We agree and will amend the exposure draft accordingly.

[122] There was general agreement in respect of the following amendments to the exposure draft:

•  Clause 12.2(d)(i) and (ii): the titles of the Codes referred to will be corrected, to read: ‘Australian Code for the Transport of Explosives by Road and Rail’ and ‘Australian Code for the Transport of Dangerous Goods by Road and Rail’.

•  Clause 12.3(a): delete ‘weekly employee’ and insert ‘full time or part time employee’. Delete the definition of ‘weekly employee’ in Schedule F.

•  Clause 12.3(c): reinsert the word ‘means’, where it is struck out in the current version of the exposure draft.

[123] We confirm that the above agreed amendments will be made.

[124] ARTIO raises four issues in respect of the exposure draft.

[125] First, ARTIO submits that ‘CPK’ should be defined as ‘cents per kilometre’ in Schedule F. Ai Group and NatRoad submit that a definition is not necessary as ‘CPK’ is not used in isolation anywhere in the exposure draft, it only appears immediately after the words ‘cents per kilometre’. We agree with Ai Group and NatRoad, it is not necessary to include a definition of ‘CPK’.

[126] Second, ARTIO submits that clauses 6.5(c) and 11.6(c) should make it clear that the 25% loading is paid on the ‘minimum rate’. Ai Group and NatRoad oppose ARTIO’s proposal and contend that no change is necessary. We agree.

[127] Third, ARTIO contends that subclauses 8.5(b) and 8.5(d) are inconsistent in how each determines the payment rate for an RDO. The relevant subclauses state:

(b) RDOs must be taken by employees in accordance with the roster, but may be accumulated and taken consecutively in order to meet the requirements of work. Alternatively, subject to mutual agreement in writing between the employer and an individual employee, any number of accrued rostered days off may be cashed out at the time the employee accesses annual leave. Any payment for a rostered day off will be at 20% of the applicable minimum weekly rate.

(d) Employees must be paid for RDOs at the rate prescribed by clause 11.1.

[128] Ai Group agrees that the subclauses are inconsistent and proposes that subclause 8.5(d) be amended as follows:

8.5 Rostered days off (RDOs)

(d) Employees must be paid for RDOs at the 20 per cent of the applicable rate prescribed by clause 11.1.

[129] NatRoad did not oppose Ai Group’s proposed amendment. We agree and will amend clause 8.5(d) as proposed by Ai Group.

[130] The final point raised by ARTIO relates to the use of the expressions ‘long distance operation’ and ‘interstate operation’ in Schedule F and clause 3. We have dealt with this issue at clause [107] above.

Road Transport and Distribution Award 2010

•  Clause 13.3(e) provides:

(e) Employee handling money as defined

[131] Schedule H – Definitions defines ‘employee handling money’ as follows:

employee handling money means an employee who collects or pays out money, excluding non-negotiable cheques, and who is responsible for the safe custody of the amounts so collected to be paid out

[132] 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.’

[133] Ai Group propose the insertion of the following words under 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.’

[134] NatRoad agrees with the amendment proposed by Ai Group and such an amendment addresses the issue raised. We agree and will amend clause 13.3(e) of the exposure draft as proposed by Ai Group.

[135] There was general agreement that the titles of the Code referred to in clause 13.3(f) be corrected to read ‘Australian Code for the Transport of Dangerous Goods by Road & Rail’. We confirm that this change will be made to the exposure draft.

[136] We also agree with NatRoad’s submission that the ‘Note’ at Schedule C be deleted.

[137] 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. 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.

[138] We propose to delete the Note. In doing so we express no view as to whether or not the TWU has abandoned its claim. If the TWU seeks to agitate its claim before the Full Bench in AM2016/32 it will be a matter for that Full Bench to determine whether the claim has been abandoned.

[139] ARTIO ‘generally supports’ NatRoad’s submissions and raises three points. The first relates to the ‘employee handling money’ definition. We have dealt with a similar issue above and we are not persuaded any further amendments are necessary.

[140] The second matter concerns clause 15.3 Shift Allowances in which, ARTIO submits, the amount paid to shift-workers for working ‘ordinary hours’ is 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 contends that this should be clarified by stating that the shift allowances are not included in overtime calculations.

[141] 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.

[142] ARTIO was not present at the 9 October 2019 hearing and on the limited argument advanced in its written submission we are not persuaded that the amendment proposed is necessary.

[143] 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. Clause 15.4 states:

15.4 Shiftwork—casual employees

Casual employees engaged on shiftwork must be paid the casual loading of 25% in addition to the shift loading specified at clause 15.3 above.

[144] 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 that this arguably already addresses ARTIO’s concern.

[145] Ai Group further submits that in the interests of clarity, there may be merit in amending clause 15.4 to include a reference to the rate upon which the 25% loading is calculated, namely to insert the words ‘of the ordinary hourly rate’ after 25%. NatRoad agrees with Ai Group’s submission. We agree with Ai Group and will amend clause 15.4 accordingly.

Group 3

Contract Call Centres Award 2010

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

[147] 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.

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

[149] The CPSU were 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.

[150] At the hearing on Wednesday 9 October 2019, we confirmed that the overtime for casuals rates in Schedule B.2.3 will be removed from the exposure draft until the Full Bench in AM2017/51 determines this issue. In the October 2019 Statement we expressed the provisional view that generally, where the issue of overtime for casual employees was before the Full Bench in AM2017/51, we would publish the updated awards without these tables, inserting them at a later time after the relevant Full Bench hands down its decision. We confirm the provisional view in relation to the Contract Call Centres Award.

Educational Services (Schools) General Staff Award 2010

[151] 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 of 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.

[152] 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.’

[153] The IEU has not yet responded to ISV’s submission; the Commission will write to the IEU inviting them to do so. If the proposal is contested it will be referred to a separate, substantive issues, Full Bench.

Pastoral Award 2010

[154] 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.

[155] 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.’

[156] 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 pay the employee for 38 hours work for that week.’

[157] 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 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.’

[158] 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 ramifications 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.

[159] 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.’

[160] However, the NFF 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 6 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

Educational Services (Teachers) Award 2010

[161] 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 [2018] FWCFB 6439).

[162] 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.

[163] After Schedule A.2.12 in the exposure draft, the Commission 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?’

[164] 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.’

[165] 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:’

‘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.’

[166] At the hearing on Wednesday 9 October 2019, ABI made a submission agreeing with the Associations that A.2.12 should remain in the Schedule and not be moved to clause 15 as:

‘It does appear to be an entitlement under the Children's Services Award, hence it's been pulled across into what I might coin the Children's Services Schedule to the Teachers Award.’ 45

[167] We agree with the submissions advanced by the Associations and ABI and Schedule A.2.12 will not be moved.

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

[168] 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 SCHADS Award as follows:

15.1 Minimum wages—social and community services employees and crisis accommodation employees

NOTES: 1. A transitional pay equity order taken to have been made pursuant to item 30A of Schedule 3A to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) has effect in accordance with that item. Transitional pay equity orders operate in Queensland as provided for in items 30A (6) and (7).

2. An equal remuneration order [PR525485] also applies to employees in the classifications in Schedule A and Schedule C of this modern award. This may require an additional payment in accordance with the terms of the transitional pay equity order. (Emphasis added)

[169] The exposure draft also includes a comment – ‘Notes in 15.1 and 15.3 to be considered further by substantive Full Bench as per [679] of [2018] FWCFB 1548’. 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]. We agree.

[170] As to Note 2, the ASU submits that the words ‘This may require an additional payment in accordance with the terms of the transitional pay equity order’ are misleading. The ASU submits that both the transitional pay equity order and the equal remuneration order may require an additional payment. The ASU proposes that the highlighted words at Note 2 should be deleted and propose that the exposure draft 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.’

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

[172] 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.’

[173] Further, Note 2 refers to Schedules A and C and 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.

[174] 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.’

[175] We propose the following (amendments highlighted):

Note 1 – A transitional pay equity order taken to have been made pursuant to item 30A of Schedule 3A to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) has effect in accordance with that item. Transitional pay equity orders operate in Queensland as provided for in items 30A (6) and (7) and may apply to employees in the classifications in Schedules B and C of this modern award.

Note 2 – An equal remuneration order [PR525485] also applies to employees in the classifications in Schedules A and B of this modern award. This may require an additional payment in accordance with the terms of the transitional pay equity order.

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

[176] The exposure draft will be updated accordingly.

Architects Award 2010

[177] 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

[178] Platinum did not appear at the hearing on 9 October 2019 and its written submission does not explain the reason for the proposed change. Platinum withdrew this submission on 8 October 2019 46 so we do not propose to deal with this issue further.

[179] The Architects Accreditation Council of Australia (AACA) submits that as the National Standard of Competency for Architects has been updated and that clause 15.2 of the exposure draft should be amended 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’. The AACA did not appear at the hearing on 9 October 2019 and its written submission does not set out the precise variation sought. We do not propose to deal with this submission in the present proceedings. If the AACA wish to pursue this issue it may do so via a separate application to vary the award.

Building and Construction General On-site Award 2010

[180] 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:

[181] In a submission made on 8 October 2019 HIA refers to a Statement issued on 4 April 2019 47 (the April 2019 Statement) and submit that submissions in relation to this exposure draft be deferred until after the matters relating to AM2016/23 are finalised.

[182] We agree with the course proposed by HIA.

[183] The April 2019 Statement addressed, among other things, a submission by the MBA relating to the Construction group of awards that are the subject of a range of substantive claims in AM2016/23. The Construction group of awards are:

•  Building and Construction General On-site Award 2010;

•  Joinery and Building Trades Award 2010;

•  Mobile Crane Hiring Award 2010; and

•  Plumbing and Fire Sprinklers Award 2010.

[184] The MBA had requested that the due dates for submissions on the exposure drafts for the Construction group of awards be deferred until the proceedings in AM2016/23 have concluded. The Statement acknowledges the force of the point raised by the MBA and states:

‘Separate directions regarding the filing of submissions on the exposure drafts for the Construction awards will be issued when the Full Bench in AM2016/23 has been finalised.’ 48

[185] The comments raised by ABI will be taken into account in the preparation of the next iteration of the exposure draft relating to this award.

[186] The Construction group of awards will be listed for mention at 9:00am on Wednesday 4 December 2019.

Electrical, Electronic and Communications Contracting Award 2010

[187] ABI identifies a number of issues in relation to Schedule C and clause 17. At paragraph 1.4 of its submission ABI sets out the process for addressing the issues it has raised, as follows:

(a) the definition of ‘standard rate’ is amended to the following, ‘the minimum wage for an Electrical Worker Grade 5 in clause 16.2’; and

(b) the percentages in the table in clause C.1 of Schedule C for weekly allowances are updated in accordance with the percentages in the current Electrical Award. For example, the industry allowance is changed from 140.59% to 3.7%; and

(c) any references in Schedule C to ‘$22.04’ (being the hourly standard rate) are either:

(i) deleted; or

(ii) the weekly standard rate of '$837.40' is also inserted alongside each reference; and

(d) the weekly wage related allowances calculated on the weekly standard rate and the hourly wage related allowances calculated on the hourly standard rate are placed in separate tables so that users of the Electrical Award can clearly identify the basis for calculating particular allowances.

[188] Ai Group and the CEPU do not oppose ABI’s submission at paragraph 1.4. We will apply the process set out by ABI (at [187] above) and amend the exposure draft accordingly.

[189] 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.’

[190] 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.

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

[192] The MEA did not attend the hearing on 9 October 2019 and the proposed change is not the subject of sufficient elaboration in its written submission to warrant its adoption. We do not propose to make the change proposed.

Registered and Licensed Clubs Award 2010

[193] 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.

[194] 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. 49 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 rejected in the Restaurant Award.50

[195] 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. 51

[196] 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).’

[197] CAI agree that the first aid allowance is included in the employee’s rate of pay, where applicable. 52

[198] 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.

[199] 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.

[200] 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.

[201] 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).

[202] 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, CAI seeks 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.

[203] Given the range of issues raised in relation to this award the matter will be listed for a conference before Commissioner Bissett in the near future.

6. Next Steps

[204] The following steps will be taken arising from the October 2019 Statement and this decision:

1. The exposure drafts will be varied in accordance with this decision and published in two tranches (Tranche 2 and Tranche 3) according to the timetable set out in [2019] FWCFB 6077 at [36].

2. Ai Group will file a note in respect of the AWU’s submission regarding our provisional view in relation to clauses 8.2 and 8.3 of the Pharmaceutical Industry Award 2010, by 4pm on Wednesday 23 October 2019 (see [53] above).

3. The Commission will write to the IEU inviting it to comment on the ISV’s proposed variation to clause 15.1(c) of the Educational Services (Schools) General Staff Award 2010 (see [151]-[153] above).

4. The Construction group of awards will be listed for mention at 9:00am on Wednesday 4 December 2019.

5. The issues raised in respect of the awards listed below will be the subject of a conference:

•  Aircraft Cabin Crew Award 2010 – conference to be convened by Commissioner Bissett

•  Live Performance Award 2010 – conference to be convened by the President

•  Pharmacy Industry Award 2010 – conference before the President at 9.30am on Thursday 21 November 2019

•  Registered and Licensed Clubs Awards 2010 – conference to be convened by Commissioner Bissett

6. The issues raised in relation to the Clerks Private Sector Award 2010 will be determined by the Plain Language Full Bench.

7. The issues raised in respect of the Fitness Industry Award 2010 will be referred to the Full Bench hearing matter AM2017/51.

PRESIDENT

Hearing

9 October

2019

Melbourne, Sydney, Brisbane, Canberra

N. Keats for Construction, Forestry, Maritime, Mining and Energy Union (MUA division)

R. Bhatt for Australian Industry Group

M. O’Neil for Real Estate Employers’ Federation

J. Arndt and S. Whish for Australian Business Industrial and NSW Business Chamber

C. Delaney for Australian Security Industry Association

A. Ambihaipahar for Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia

G. Miller for Australian Manufacturing Workers’ Union

S. Maxwell for Construction, Forestry, Maritime, Mining and Energy Union (construction general division)

S. Crawford for The Australian Workers’ Union of Australia

L. Behata for Transport Workers’ Union of Australia

S. Bull for United Voice

M. Rizzo for Australian Municipal, Administrative, Clerical and Services Union

P. Ryan for Australian Hotels Association

V. Wiles for Construction, Forestry, Maritime, Mining and Energy Union (manufacturing division)

J. Andrews and F. Nethercote for Independent Schools Victoria

K. Wischer for Australian Nursing and Midwifery Federation

A. Nash for Community and Public Sector Union

R. Calver for National Road Transport Association

M. Ushakoff for Clubs Australia Industrial

B. Rogers for National Farmers’ Federation

Printed by authority of the Commonwealth Government Printer

<PR713115>

 1   [2019] FWCFB 6077

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

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

 4   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.

 5   [2019] FWCFB 6899

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

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

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

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

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

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

 12   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.

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

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

 15   Group of 8 Universities submission, 5 April 2019. The Group of Eight Universities 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)’.

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

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

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

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

 20   ABI submission 13 March 2019 at paras 16 and 17, amending Note 2 a clause 31.7 and the two Notes at 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.

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

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

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

 24   ANMF submission, 27 March 2019 at paras 1-2 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)

 25   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)

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

 27   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

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

 29   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

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

 31   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

 32   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.

 33   See Transcript 9 October 2019 at [98] – [111]

 34   We note that the coverage clause refers to the Petroleum (Submerged Lands) Act 1967 which was repealed in 2006. In the next iteration of the exposure drafts we will ask the parties if this should be replaced.

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

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

 37   [2018] FWCFB 6755

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

 39   Ai Group submission in reply, 23 September 2019

 40   Ai Group submission, 23 September 2019 at 48.

 41   Ai Group submission, 23 September 2019 at 52.

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

 43   Ai Group submission, 23 September 2019 at 79.

 44   Ai Group submission, 23 September 2019 at 75.

 45   Transcript PN634

 46   Platinum Employee Relations submission, 8 October 2019

 47   [2019] FWC 2271

 48   Ibid, at [14]

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

 50   [2018] FWCFB 7263

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

 52   Clubs Australia Industrial submission. 17 May 2019 at 10