[2019] FWCFB 7173
The attached document replaces the document previously issued with the above code on 24 October 2019.
At paragraph [216], the number “33” has been deleted and replaced with “32”.
Modern Awards Team
On behalf of the Associate to President Ross
25 October 2019
| [2019] FWCFB 7173 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.156—4 yearly review of modern awards
4 yearly review of modern awards
(AM2019/17)
JUSTICE ROSS, PRESIDENT |
MELBOURNE, 24 OCTOBER 2019 |
4 yearly review of modern awards – finalisation of Exposure Drafts and variation determinations – Tranche 1.
[1] A decision issued on 2 September 2019 1 (the September 2019 Decision) outlined the process for finalising the Exposure Drafts produced in the 4 yearly review of modern awards (the Review) and the consequent variation of each modern award. This Full Bench (AM2019/17) has been constituted to oversee this process and for that purpose we have divided modern awards into 3 tranches. The awards in each tranche were set out at Attachment B to the September 2019 Decision.
[2] This decision deals with the 37 awards 2 in Tranche 1, that is:
• Aluminium Industry Award 2010
• Ambulance and Patient Transport Industry Award 2010
• Animal Care and Veterinary Services Award 2010
• Aquaculture Industry Award 2010
• Banking, Finance and Insurance Award 2010
• Book Industry Award 2010
• Car Parking Award 2010
• Cement, Lime and Quarrying Award 2010
• Cemetery Industry Award 2010
• Coal Export Terminals Award 2010
• Corrections and Detention (Private Sector) Award 2010
• Cotton Ginning Award 2010
• Electrical Power Industry Award 2010
• Fire Fighting Industry Award 2010
• Funeral Industry Award 2010
• Gardening and Landscaping Services Award 2010
• Hydrocarbons Industry (Upstream) Award 2010
• Legal Services Award 2010
• Market and Social Research Award 2010
• Medical Practitioners Award 2010
• Mining Industry Award 2010
• Nursery Award 2010
• Oil Refining and Manufacturing Award 2010
• Pharmacy Industry Award 2010
• Port Authorities Award 2010
• Premixed Concrete Award 2010
• Racing Industry Ground Maintenance Award 2010
• Real Estate Industry Award 2010
• Salt Industry Award 2010
• Seafood Processing Award 2010
• Silviculture Award 2010
• Sporting Organisations Award 2010
• State Government Agencies Award 2010
• Surveying Award 2010
• Travelling Shows Award 2010
• Water Industry Award 2010
• Wool Storage, Sampling and Testing Award 2010
[3] On 2 September 2019 Exposure Drafts were published for each of these awards with amendments made in tracked change to show the changes made since the Exposure Draft was last published. Draft variation determinations in respect of each award were also published.
[4] In the September 2019 decision we expressed the provisional view that the variation of the modern awards in Tranche 1 in accordance with the draft variation determinations was, in respect of each of these awards, necessary to achieve the modern awards objective. Interested parties were invited to comment on the provisional view in accordance with the timetable 3 below:
Date |
Event |
2 September 2019 |
Publish final Exposure Drafts and draft variation determinations |
27 September 2019 |
Parties to file submissions on final Exposure Drafts and draft variation determinations |
8 October 2019 |
Parties to file submissions in reply |
11 October 2019 |
Full Bench Hearing (if required) |
[5] Submissions have been filed by:
• Australian Manufacturing Workers’ Union (AMWU) on 30 September 2019 and 8 October 2019;
• Australian Business Industrial and NSW Business Chamber (ABI) on 27 September 2019;
• Australian Industry Group (Ai Group) on 20 September 2019, 8 October 2019 and 23 October 2019;
• Professionals Australia on 20 September 2019;
• United Voice on 20 September 2019; and
• Australian Workers’ Union (AWU) on 9 October 2019.
[6] Issues raised in respect of the Tranche 1 awards were the subject of a hearing on Friday 11 October 2019. A statement issued on 10 October 2019 4 (the October 2019 Statement) expressed a number of provisional views in respect of some of the points previously advanced.
[7] Four general issues are raised in the submissions.
2.1 Operative Date
[8] Ai Group notes that the draft variation determinations in respect of the Tranche 1 awards do not propose a date upon which the determinations would come into operation. Ai Group submits that the variations should commence operation ‘not less than three months after the final determination is issued’. 5 The AMWU is not opposed to a ‘three month lead in time’ for the operation of the varied awards.6
[9] In the October 2019 Statement we accepted that some lead in time would be appropriate and expressed the provisional view that the variation determinations be published in October 2019 and come into operation on 3 February 2020.
[10] This issue was the subject of further discussion during the course of the hearing on 11 October 2019. 7 Arising from that exchange the Fair Work Commission (Commission) proposed the following course:
1. The Full Bench will issue a decision dealing with the issues arising in respect of the Tranche 1 Exposure Drafts and associated draft variation determinations.
2. Variation determinations for the Tranche 1 awards will be published no later than 25 November 2019 (subject to our later comments in respect of three of the Tranche 1 awards, see [18] below). The variation determinations will commence operation on 4 February 2020.
3. If a Tranche 1 award is the subject of another variation determination between the publication of the variation determination arising from this decision (25 November 2019) and when those variation determinations commence operation (on 4 February 2020) a conference will be convened to provide all parties interested in the affected award with an opportunity to be heard in relation to the appropriate course of action.
[11] No party opposed the course proposed. We will adopt the course set out at [10] above.
2.2 Overtime for casuals
[12] ABI notes that in the September 2019 Decision we acknowledge that various common issue matters are yet to be finally determined, including the ‘Overtime for Casuals’ matter. 8
[13] A number of the Tranche 1 Exposure Drafts published on 2 September 2019 contain summary tables setting out the overtime rates for casual employees (in dollar terms). The calculation of some of these rates is currently in dispute as part of the ‘Overtime for Casuals’ matter. The tables in the relevant Exposure Drafts contain the following disclaimer:
‘A Full Bench has been constituted in AM2017/51 to deal with the issue of overtime for casuals. The rates in the tables below dealing with overtime for casuals will not become operative until a decision is made in that matter and only to the extent that they are consistent with the decision.’
[14] ABI agrees that the summary tables should not be given effect until the relevant decision is handed down, but submits that it is not clear whether the Commission intends to:
(i) publish the updated awards without these tables, inserting them at a later time after the relevant Full Bench hands down its decision; or
(ii) publish the updated awards with the tables as currently set out in the Exposure Drafts, along with a disclaimer that the rates are not yet operational and are subject to a further decision of the Commission. 9
[15] ABI submits that the first option is the most appropriate and, further, if the relevant Full Bench has not yet handed down its decision, a similar process should be undertaken in relation to updated Exposure Drafts in Tranches 2 and 3. 10
[16] In its reply submissions the AMWU advises that it is not opposed to the course of action proposed by ABI. 11
[17] In the October 2019 Statement we expressed the provisional view that the first option set out above was the appropriate course. At the hearing on 11 October 2019 there was no opposition to our provisional view. We confirm that the variation determinations arising from this decision will not include any schedules containing overtime rates for casuals where that issue is contested. These schedules can be inserted into the Tranche 1 awards, if appropriate, after the Part-time and Casuals Full Bench has determined the contested issues.
2.3 Casual conversion clauses
[18] This issue affects three Tranche 1 awards: Cement, Lime and Quarrying Award 2010 (at clause 11.4); Cotton Ginning Award (2010) (at clause 11.5); and the Premixed Concrete Award 2010 (at clause 11.3). The casual conversion clauses in the Exposure Drafts and variation determinations in respect of each of these awards are in substantially different terms to the casual conversion clauses in the current awards. The variation determinations in respect of each of these awards will be amended to reflect the terms of the casual conversion clauses in the current awards.
2.4 Reference to National Training Wage
[19] Ai Group submits that the reference to the ‘Miscellaneous Award 2010’ in the National Training Wage clauses in the Exposure Drafts ‘may require updating.’ 12 The AMWU agrees.13
[20] The references to the ‘Miscellaneous Award 2010’ will be updated when the title of that award is varied.
2.5 The ‘note’ in Schedules of Rates
[21] A note in the following terms has been deleted from the Schedules of Rates in the Exposure Drafts and variation determinations:
‘NOTE: Employers who meet their obligations under this schedule are meeting their obligations under the award.’
[22] Ai Group submit that absent a decision by the Commission to remove the note, it should be reinserted. 14 The AMWU supports the deletion of the note.15
[23] In the October 2019 Statement we expressed the provisional view that the note be deleted on the basis that it may give rise to a mistaken belief that compliance with the rates in the Schedule means that all award obligations are met, including, for example, conditions such as leave provisions and meal breaks. At the hearing on 11 October no party contested our provisional view. We confirm our provisional view and the note set out at [21] above will be deleted from the variation determinations.
[24] A number of the submissions received identify minor typographical errors or other errors within Exposure Drafts. Such minor errors have been identified in the following Exposure Drafts:
• Aquaculture Industry Award 2010; 16
• Aluminium Industry Award 2010; 17
• Ambulance and Patient Transport Industry Award 2010; 18
• Banking, Finance and Insurance Award 2010; 19
• Cement, Lime and Quarrying Award 2010; 20
• Cotton Ginning Award 2010; 21
• Electrical Power Award 2010; 22
• Premixed Concrete Award 2010; 23
• Real Estate Industry Award 2010; 24
• Salt Industry Award 2010; 25
• Seafood Processing Award 2010; 26
• Silviculture Award 2010; 27
• Water Industry Award 2010; 28 and
• Wool Storage, Sampling and Testing Award 2010. 29
[25] Any party who wished to contest the variation of these Exposure Drafts (and the related variation determinations) to address the minor errors identified was invited to make a submission at the commencement of the hearing on 11 October 2019. It was made clear in the October 2019 Statement that absent any opposition we would amend the Exposure Drafts and the associated variation determination to address the issues set out in the footnotes to [24] above.
[26] At the hearing on 11 October 2019 no party opposed the correction of the identified errors. We will amend the variation determinations accordingly.
[27] A number of minor errors have been identified in the Schedule of Hourly Rates tables in some Tranche 1 variation determinations (see footnotes 118 and 119). These will also be corrected.
4.1 Aluminium Industry Award 2010
(i) Definition and use of the terms ‘ordinary hourly rate of pay’ and ‘ordinary hourly rate’
[28] The Exposure Draft defines ‘ordinary hourly rate of pay’ at clause 2 as follows:
‘ordinary hourly rate of pay means the hourly rate for an employee’s classification specified in clause 16—Minimum rates inclusive of work conditions and disability allowance’
[29] The Exposure Draft variously uses the terms ‘ordinary hourly rate of pay’ and ‘ordinary hourly rate’. Ai Group suggests that the Exposure Draft be varied to consistently use the term ‘ordinary hourly rate’. 30 No party opposed this suggestion.
[30] We agree with Ai Group and the variation determination be amended to replace the expression ‘ordinary hourly rate of pay’ with ‘ordinary hourly rate’.
(ii) Definition of ‘roster’
[31] Clause 2 of the Exposure Draft defines ‘roster’ as follows:
‘roster means a calendar identifying the days/shifts on which an employee is required to work’
[32] The current award defines roster as follows:
‘roster means a calendar of days identifying the days/shifts on which an employee is (or employees are) required to work’
[33] Ai Group submits that the definition in the Exposure Draft should be replaced by the current definition in the award and says:
‘We are concerned that a calendar identifying the days/shifts on which multiple employees are required to work would not meet the definition of ‘roster’ at clause 2. This may have substantive implications, for example, for the operation of clause 14.4 – 14.6 of the instrument.’ 31
[34] In the October 2019 Statement we expressed the provisional view that the definition of ‘roster’ in clause 2 be amended as follows:
‘roster means a calendar of days identifying the days/shifts on which employees are required to work.’
[35] At the hearing on 11 October 2019 there was no opposition to our provisional view. We confirm that the variation determinations will be amended as proposed at [34] above.
(iii) Clauses 14.1(f) Ordinary hours of work
[36] Clauses 14.1(e) and (f) state:
‘(e) An employer may agree with an employee or with a majority of affected employees, to alter the span of hours to suit operational and employee needs.
(f) Any time worked outside the ordinary hours of any shift or outside the span of hours in clause 14.1(d) is overtime. An employee will be advised in writing of which hours in the roster cycle are ordinary hours and which hours are overtime.’
[37] Ai Group submits that clause 14.1(f) ‘neglects to contemplate the operation of clause 14.1(e), which provides that an employer may agree with an employee or with the majority of affected employees, to alter the span of hours’ 32 and submits that this issue could be addressed by amending clause 14.1(f), as follows:
‘Any time worked outside the ordinary hours of any shift or outside the span of hours in clause 14.1(d) (or as agreed in accordance with clause 14.1(e)) is overtime. An employee will be advised in writing if which hours in the roster cycle are ordinary hours and which hours are overtime.” (underline is proposed insertion)’ 33
[38] There was no opposition to Ai Group’s proposal. The amendment proposed by Ai Group will be adopted and the variation determination amended accordingly.
(iv) Clause 20.8 Make up time
[39] Ai Group submits that clause 20.8 ‘appears to unnecessarily repeat the substance of clause 14.9’ and that make-up time is more appropriately dealt with alongside other provisions dealing with ordinary hours. On this basis it is submitted that clause 20.8 should be deleted and clause 14.9 retained. 34
[40] In the October 2019 Statement we expressed the provisional view that clause 20.8 be deleted and clause 14.9 be amended to read:
‘An employee may elect, with the consent of the employer, to work make-up time under which the employee does not work ordinary hours in accordance with the employee’s roster but works those hours at a later time within the same roster cycle.’
[41] At the hearing on 11 October 2019 there was no opposition to our provisional view. We confirm that clause 20.8 will be deleted and clause 14.9 amended as set out above.
(v) Clause 22.1(b) Annual Leave
[42] Clause 22.1(b) states:
‘22.1 Annual leave
…
(b) an employer may convert the annual leave entitlement in the NES to an equivalent ordinary hour entitlement for administrative ease (for example 152 hours for a full-time employee entitled to four 4 weeks’ of annual leave and190 hours for a continuous shiftworker).’
[43] The AWU submits that:
‘Consideration should be given to deleting the entire subclause or at least the bracketed example because the content is arguably inconsistent with the National Employment Standards (“NES”) based on the Full Bench decision in RACV 35 i.e. accruing the specified hours may not be sufficient to enable an employee to access their full NES entitlement.’36
[44] Given that the AWU submission was filed late all interested parties were given an opportunity to file a submission in response, by 4pm Wednesday 16 October.
[45] Ai Group filed a submission on 23 October 2019 37 in which it did not oppose the deletion of the example in order to address the AWU’s concern. The AWU considers the matter it has raised to have been resolved if the bracketed example is deleted. ABI does not oppose the deletion of the example. We will delete the bracketed example from clause 22.1(b).
(vi) Clause 27.2 holiday pay
[46] Clause 27.2 states:
‘27.2 Where an employee works on a public holiday they will be paid in accordance with clause 21.3.’
[47] The AWU submit that clause 27.2 be amended to read:
‘Where an employee works on a public holiday they will be paid in accordance with clause 21.3 or 29.1(a)(ii).’ 38
[48] It is submitted that this change ‘captures the rate of pay for ordinary hours and overtime worked on a public holiday’. 39
[49] During the course of the hearing on 11 October 2019 it was generally agreed that clause 27.2 should be amended, as follows:
27.2 Where an employee works on a public holiday they will be paid in accordance with clauses 21.3, 20.1(a)(iii) and 20.2.
[50] We agree and will amend the variation determination accordingly.
4.2 Ambulance and Patient Transport Industry Award 2010
[51] Clause 22.3 of the Exposure Draft states:
‘22.3 Payment for annual leave
(a) Before going on annual leave, an employee will be paid the amount of wages they would have received for ordinary time worked had they not been on leave during that period. This includes any allowances, loading, shift allowance penalties or over-award payments which would have been received had the employee not been on leave.
(b) In addition, the employer must pay the employee a loading of 17.5% of the employee’s ordinary pay for ordinary hours the employee would have worked had they not been on leave during that period.
(c) Electronic funds transfer (EFT) payment of annual leave
Despite anything else in clause 17, an employee paid by electronic funds transfer (EFT) may be paid in accordance with their usual pay cycle while on paid annual leave.
NOTE: Where an employee is receiving over award payments such that the employee’s base rate of pay is higher than the rate specified under this award, the employee is entitled to receive the higher rate while on a period of paid annual leave (see sections 16 and 90 of the Act).’
[52] Clause 30.4 of the current award states:
‘Before going on annual leave, an employee will be paid the amount of wages they would have received for ordinary time worked had they not been on leave during that period. This includes any allowances, loading, shift penalties or overaward payments which would have been received had the employee not been on leave.’
[53] United Voice submit that the current award at clause 30.4 expressly includes shift penalties and states that payment for annual leave will include ordinary time wages including ‘any allowances, loading, shift penalties or over award payments which would have been received had the employee not been on leave’. They submit that in the Exposure Draft at clause 22.3(a), ‘penalties’ has been crossed out and replaced with ‘allowances’. United Voice submit that the award contains both shift allowances (clause 18.2(g)) and shift penalties (clause 21.1), and the exclusion of shift penalties would be a substantive change and could result in a reduction in employees’ annual leave entitlements. 40 They submit that clause 22.3(a) of the Exposure Draft should be amended as follows:
‘…This includes any allowances, loading, shift allowances, penalties or over-award payments which would have been received had the employee not been on leave.’
[54] There was no opposition to the amendment proposed by United Voice. We agree with the submission put and will vary clause 22.3(a) in the variation determination as proposed by United Voice.
4.3 Animal Care and Veterinary Services Award 2010
[55] Two issues arise in respect of this award. The first concerns clause 31 which states:
‘31. Termination of employment
NOTE: The NES sets out requirements for notice of termination by an employer. See sections 117 and 123 of the Act.
31.1 Notice of termination by an employee
(a) Clause 31.1 applies to all employees except those identified in sections 123(1) and 123(3) of the Act.
(b) An employee must give the employer notice of termination in accordance with Table 1—Period of notice of at least the period specified in column 2 according to the period of continuous service of the employee specified in column 1.’
Table 1—Period of notice Column 1
|
Column 2
|
Not more than 1 year |
1 week |
More than 1 year but not more than 3 years |
2 weeks |
More than 3 years but not more than 5 years |
3 weeks |
More than 5 years |
4 weeks |
(c) In clause 31.1(b) continuous service has the same meaning as in section 117 of the Act.
(d) If an employee who is at least 18 years old does not give the period of notice required under clause 31.1(b), then the employer may deduct from wages due to the employee under this award an amount that is no more than one week’s wages for the employee.
(e) If the employer has agreed to a shorter period of notice than that required under clause 31.1(b), then no deduction can be made under clause 31.1(d).
(f) Any deduction made under clause 31.1(d) must not be unreasonable in the circumstances.
31.2 Job search entitlement
(a) Where an employer has given notice of termination to an employee, the employee must be allowed time off without loss of pay of up to one day for the purpose of seeking other employment.
(b) The time off under clause 31.1(c) is to be taken at times that are convenient to the employee after consultation with the employer.’
[56] United Voice submit that the notice of termination period has been amended in clause 11.1(b) of the current award but it is not reflected in clause 31 of the Exposure Draft. 41 It submits that the Exposure Draft should be amended to take account of decision [2019] FWCFB 5409 at [56]. In the October 2019 Statement we indicated our agreement with the submission put and expressed the provisional view that clause 31 be varied to reflect determination PR711488. There was no opposition to our provisional view at the hearing on 11 October 2019 and we confirm that the variation determination will be amended to reflect determination PR711488.
[57] The second issue concerns the higher duties at clause 15.7(a)(ii) of the Exposure Draft which states:
‘(ii) Any employee who is required to perform work for which a lower rate is paid must not suffer any reduction in wages; provided the duration of the work is less than one week.’
[58] United Voice submit that clause 15.7(a)(ii) does not accurately reflect the current clause 16.2(c)(ii). Clause 16.2(c)(ii) of the current award states:
‘(ii) Any employee who is required to perform work temporarily for which a lower rate is paid must not suffer any reduction in wages whilst so employed; provided that any work of less than one week’s duration will be deemed to be temporary.’
[59] United Voice submits that the current clause places a limitation on the maximum period of time an employee (who is not a veterinary surgeon) can be required to temporarily perform work at a lower classification (one week) and stipulates that an employee must not suffer any reduction in wages over that period. 42 United Voice contends that clause 15.7(a)(ii) of the Exposure Draft suggests that if an employee was required to work at a lower classification for a period of over one week, the employer may be able to pay the employee a lower wage rate43 and contends that this deviates from the current clause and is detrimental to employees. United Voice propose clause 15.7(a)(ii) of the Exposure Draft be re-worded as follows:
‘Any employee who is required to temporarily perform work for which a lower rate is paid for must not suffer any reduction in wages. An employee may be required to temporarily perform work at a lower classification for a period of less than one week.’
[60] In the October 2019 Statement we indicated our agreement with the submission put and expressed the provisional view that clause 15.7(a)(ii) be amended as proposed by United Voice. There was no opposition to our provisional view at the hearing on 11 October 2019 and we confirm that clause 15.7(a)(ii) in the variation determination will be amended, as proposed by United Voice.
4.4 Aquaculture Industry Award 2010
[61] Two issues arise in relation to this award:
(i) Clause 20.8(b)
[62] Clause 20.8(b) of the Exposure Draft states:
‘20.8 Breaks during overtime
…
(b) Where overtime is to be worked immediately after the completion of ordinary hours and the period of overtime is to be more than one and a half hours, an employee, before starting the overtime will be allowed a meal break of 20 minutes, to be paid at the employee’s minimum hourly rate.’
[63] Clause 21.3(b) of the current award states:
…
(b) Where the period of overtime is to be for more than one and a half hours, an employee will be allowed a meal break of 20 minutes after ordinary hours before commencing overtime. This break will be paid for at ordinary rates.’
[64] The AWU submits:
‘The exposure draft refers to payment at the “minimum hourly rate” for twenty minutes where more than 1 � hours of overtime is to be worked after ordinary hours. Clause 21.3(b) of the current award refers to payment at “ordinary rates”. The term “ordinary rates” would include shift loadings and weekend penalty rates but the term “minimum hourly rate” does not. This means the exposure draft reduces the current condition and creates an anomalous outcome whereby an employee may fall onto a lower rate.’ 44
[65] There was no opposition to the change proposed by the AWU. We agree with the submission put and will amend the variation determination accordingly.
(ii) Clause 27.3
[66] The second issue concerns clause 27.3, which states:
‘27. Public holidays
…
27.3 Where an employee works on a public holiday or another day substituted in accordance with clause 27.2 they will be paid in accordance with clauses 21.3 or 20.6.’
[67] The AWU submits:
‘This should be amended to read: “Where an employee works on a public holiday or another day substituted in accordance with clause 27.2 they will be paid in accordance with clauses 20.6, 21.3 or 21.5(c).” The rate for ordinary time worked by day workers on a public holiday is contained in clause 21.5(c).’ 45
[68] There was no opposition to the change proposed by the AWU. We agree with the submission put and will amend the variation determination accordingly.
4.5 Banking, Finance and Insurance Award 2010
[69] Clause 13.7(d) of the Exposure Draft states:
‘(d) Shiftwork penalties
The following loadings shiftwork penalties will apply in relation to the working of shiftwork on Monday to Friday and on Saturday between 8.00 am and 12.00 pm:
% of minimum hourly rate | |
Early morning shift |
112.5 |
Afternoon shift |
120 |
Night shift |
125 |
Employees who permanently work afternoon or night shift or a combination thereof will be paid an additional 5% loading | |
[70] Ai Group submit that the amendments made to clause 13.7(d) do not adequately address the concerns they previously raised about the characterisation of shift loadings/penalties. They submit that the clause purportedly requires the payment of a penalty, but in fact the clause however prescribes a rate that is payable for such time worked; the amount prescribed is not a penalty that is payable in addition to the base rate of pay. 46
[71] Ai Group propose the following rewording to clause 13.7(d) and note that this clause may require further consideration once the decision in relation to annual leave loading clauses has been issued by the Commission:
‘(d) Shiftwork penalties penalty rates
The following shiftwork penaltyies rates will apply in relation to the working of shiftwork on Monday to Friday and on Saturday between 8:00am and 12:00pm:…’
[72] In the October 2019 Statement we expressed the provisional view that clause 13.7(d) be varied as proposed by Ai Group. There was no opposition to our provisional view at the hearing on 11 October 2019 and we confirm that clause 13.7(d) will be varied as proposed by Ai Group and the variation determination will be amended accordingly.
4.6 Cement, Lime and Quarrying Award 2010
[73] Three issues arise in relation to this award.
(i) Definition of ‘ordinary hourly rate’
[74] Clause 2 of the Exposure Draft defines ‘ordinary hourly rate’ as follows:
‘ordinary hourly rate means the hourly rate for an employee’s classification specified in clause 16—Minimum ratesMinimum rates, inclusive of the industry allowance. Where an employee is entitled to an additional all-purpose allowance, this allowance forms part of the employee’s ordinary hourly rate.’
[75] Ai Group propose that the definition be amended to make clear that where an employee is entitled to all-purpose allowances in addition to the industry allowance, they are to be included in the employee’s ordinary hourly rate. Ai Group submit that the current definition may be read to suggest that such allowances are to be included in lieu of the industry allowance. 47 During the course of the hearing on 11 October 2019 there was general agreement that the last sentence of the definition be amended to read:
‘Where an employee is entitled to an additional all-purpose allowance, this allowance also forms part of the employee’s ordinary hourly rate.’ 48
[76] We agree and will amend the variation determination accordingly.
(ii) Clauses 4.4 and 4.5
[77] ABI contend that the references to ‘cement and lime and quarrying industry’ in clauses 4.4 and 4.5 are problematic. The industries are separately defined but there is no definition of the ‘cement and lime and quarrying industry’ and retention of this phrase may be interpreted as requiring membership of both industries. ABI submits that ‘cement and lime industry’ and ‘quarrying industry’ should be used. 49
[78] In the October 2019 Statement we indicated our agreement with the submission put and expressed the provisional view that the Exposure Draft and variation determination be varied such that the reference to ‘cement and lime and quarrying industry’ in clauses 4.4 and 4.5 are deleted and that the words ‘cement and lime industry and quarrying industry’ be inserted instead. There was no opposition to our provisional view at the hearing on 11 October 2019. We confirm our view and will amend the variation determination accordingly.
(iii) Clause 27.2
[79] Clause 27.2 states:
‘27. Public holidays
...
27.2 Where an employee works on a public holiday they will be paid in accordance with clause 21.6.’
[80] Clause 21 states:
‘21. Penalty Rates
21.1 Afternoon shifts
Afternoon shift means any shift finishing after 6.00 pm and at or before midnight. If the employee is rostered to work an afternoon shift, the employee must be paid at 115% of the ordinary hourly rate for such shift. A casual employee will be paid at 140% of the ordinary hourly rate.
21.2 Night shift
(a) Night shift means any shift finishing after midnight and at or before 8.00 am. If the employee is rostered to work a night shift, the employee must be paid at 115% of the ordinary hourly rate for such shift. A casual employee will be paid at 140% of the ordinary hourly rate. An employee working permanent night shifts will be paid at 130% of the ordinary hourly rate. A casual employee will be paid at 155% of the ordinary hourly rate.
(b) Permanent night shift means when an employee who:
(i) during a period of engagement on shiftwork, works night shift only; or
(ii) remains on night shift for a longer period than 4 consecutive weeks; or
(iii) works on a night shift which does not rotate or alternate with another shift or with day work so as to give him or her at least 1/3rd of his or her working time off night shift in each shift cycle.
21.3 Saturday shifts—cement and lime industry
If an employee works a shift, part of which is on a Saturday, the employee must be paid at 150% of the ordinary hourly rate and a casual employee must be paid at 175% of the ordinary hourly rate. This extra rate will be in substitution for and not cumulative upon the shift penalties in clauses 21.1 and 21.2.
21.4 Saturday shifts—quarrying industry
If an employee works a shift, part of which is on a Saturday, the employee must be paid at 150% of the ordinary hourly rate for the first 2 hours and 200% of the ordinary hourly rate after that. A casual employee must be paid at 175% of the ordinary hourly rate for the first 2 hours and 225% of the ordinary hourly rate after that. This extra rate will be in substitution for and not cumulative upon the shift penalties in clauses 21.1 and 21.2.
21.5 Sunday shifts
If an employee works a shift, part of which is on a Sunday, the employee must be paid at 200% of the ordinary hourly rate and a casual employee must be paid at 225% of the ordinary hourly rate. This extra rate will be in substitution for and not cumulative upon the shift penalties in clauses 21.1 and 21.2.
21.6 Public holiday shifts
If an employee works a shift, part of which is on a public holiday, the employee must be paid at 250% of the ordinary hourly rate and a casual employee must be paid at 275% of the ordinary hourly rate. This extra rate will be in substitution for and not cumulative upon the shift penalties in clauses 21.1 and 21.2.
[81] The AWU submits that clause 27.2 be amended to read:
‘Where an employee works on a public holiday they will be paid at the rate of 250% of the ordinary hourly rate and a casual employee must be paid at 275% of the ordinary hourly rate.’
[82] The AWU contends that the proposed amendment ‘clarifies the entitlement for day workers and for overtime given clause 21.6 of the Exposure Draft is arguably confined to ordinary time worked by shift workers’. 50
[83] Ai Group opposes the proposed amendment, contending that it is not necessary as clause 21.6 provides an entitlement to day workers. 51
[84] There is no dispute between the parties as to a day workers entitlements in respect of public holiday work. The issue is confined to how that entitlement should be expressed in the award. Ai Group is content with the way the Exposure Draft is currently expressed and the AWU seeks to clarify the entitlement.
[85] We agree with the AWU. While clause 21.6 may well encompass day workers, as submitted by Ai Group, the context creates a degree of ambiguity. The earlier subclauses in clause 21 speak of ‘Afternoon shifts’ (clause 21.1) and Night shifts (clause 21.2) or shifts in particular industry sectors (clause 21.3 and 21.4). In our view, it is appropriate that clause 27.2 be amended to put this issue beyond doubt. We will amend clause 27.2 as proposed by the AWU.
4.7 Cemetery Industry Award 2010
[86] Two issues arise in relation to this award.
(i) Clause 10.2
[87] Clause 10.2 reads:
‘10.2 A casual employee must be paid per ordinary hour worked:
(a) the ordinary hourly rate appropriate to the employee’s classification; and
(b) a loading of 25% of the ordinary hourly rate.’
[88] The AWU submits:
‘This should be amended to read: “A casual employee must be paid per ordinary hour worked…” The word “ordinary” does not appear in clause 10.3(b) of the current award. The wording in the exposure draft may constitute a significant substantive change. The issue is before the Casual Overtime Full Bench and the wording from the current award should be maintained until the issue is resolved in those proceedings.’ 52
[89] There was no opposition to the AWU’s proposed amendment to clause 10.2 at the hearing on 11 October 2019. We agree with the submission put and will amend clause 10.2 in the variation determination accordingly.
(ii) Schedule B.2.2
[90] The AWU submits that the ‘ordinary hours’ column in Schedule B.2.2 be deleted. There was no opposition to the AWU submission at the hearing on 11 October 2019. 53 We agree with the submission put and will delete Schedule B.2.2 from the variation determination.
4.8 Cotton Ginning Award 2010
[91] Three issues arise in relation to the Exposure Draft.
(i) Definition of ‘ordinary hourly rate’
[92] Clause 2 of the Exposure Draft defines ‘ordinary hourly rate’ as follows:
‘ordinary hourly rate means the hourly rate for the employee’s classification specified in clause 17—Minimum rates, inclusive of the industry allowance. Where an employee is entitled to an additional all purpose allowance, this allowance forms part of that employee’s ordinary hourly rate’
[93] Ai Group submit that the reference to the ‘industry allowance’ should be replaced with ‘disability allowance’ as neither the current award nor the Exposure Draft prescribe an industry allowance. 54 Ai Group also suggests that the definition be amended to make clear that where an employee is entitled to all-purpose allowances in addition to the disability allowance, they are to be included in the employees’ ordinary hourly rate in addition to the disability allowance, consistent with the current award. Ai Group contend that the current definition could be read to suggest that such allowances are to be so included in lieu of the disability allowance.55
[94] There was no opposition to Ai Group’s proposal at the hearing on 11 October 2019. We agree with Ai Group. Consistent with our decision in relation to the Cement, Lime and Quarrying Award (at [75] – [76] above) we will insert the word ‘also’ in the definition. The amended definition will read:
‘Ordinary hourly rate means the hourly rate for the employee’s classification specified in clause 17—Minimum rates, inclusive of the disabilities allowance. Where an employee is entitled to an additional all-purpose allowance, this allowance also forms part of that employee’s ordinary hourly rate’
[95] The variation determination will be amended accordingly.
(ii) Clauses 4.2 and 4.3
[96] Clause 4.2 of the Exposure Draft states:
‘This award covers any employer which supplies labour on an on-hire basis in the cotton ginning industry set out in clause 4.1 in respect of on-hire employees in classifications covered by this award, and those on-hire employees, while engaged in the performance of work for a business in that industry. This subclauseClause 4.2 operates subject to the exclusions from coverage in this award.’
[97] Clause 4.3 of the Exposure Draft states:
‘This award covers employers which provide group training services for trainees engaged in the cotton ginning industry and/or parts of the cotton ginning industry set out in clause 4.1 and those trainees engaged by a group training service hosted by a company to perform work at a location where the activities described in clause 4.1 are being performed. This subclauseClause 4.3 operates subject to the exclusions from coverage in this award.’
[98] Ai Group submits that the references to the ‘cotton ginning industry’ are potentially confusing and ambiguous because:
‘Unlike most industry awards, the coverage of the Cotton Ginning Award is not expressed by reference to an industry, the scope of which is defined by the award. Rather, the award is simply expressed to apply to employers operating cotton ginneries and their employees in the classification structure of the award.’ 56
[99] For these reasons Ai Group submits that the changes proposed to the first sentences of clauses 4.2 and 4.3 should not be made.
[100] In its written submission the AWU stated that it did not agree with the concerns raised by Ai Group about references to the industry coverage of the award. 57 At the hearing on 11 October 2019 the AWU sought some clarification as to the amendment proposed by Ai Group.58 Ai Group replied that they sought to amend clauses 4.2 so that the first sentence reads:
‘This award covers any employer which supplies labour on an on-hire basis in the industries set out in clause 4.1 in respect of on-hire employees in classifications covered by this award, and those on-hire employees, while engaged in the performance of work for a business in that industry.’
[101] In relation to clause 4.3 it is proposed that the first sentence be amended to read:
‘This award covers employers which provide group training services for trainees engaged in the industry and/or parts of the industry set out in clause 4.1 and those trainees engaged by a group training service hosted by a company to perform work at a location where the activities described in clause 4.1 are being performed.’
[102] The AWU did not oppose the changes sought. 59
[103] We agree with Ai Group and will amend the first sentences in clauses 4.2 and 4.3 in the variation determination accordingly.
(iii) Schedule A: Summary of hourly rates of pay
[104] Ai Group submit that the footnotes in Schedule A refer to an industry allowance and should be amended to instead refer to the disability allowance. 60 We agree that the footnotes should refer to the disabilities allowance; the amendment proposed is related to item (i) above. We will amend the variation determination accordingly.
4.9 Funeral Industry Award 2010
[105] The AWU raise three issues in relation to the Exposure Draft.
(i) Clause 11.2
[106] Clause 11.2 states:
‘11.2 For each ordinary hour worked a casual employee must be paid:
(a) the minimum hourly rate for the appropriate classification; and
(b) a loading of 25% of the minimum hourly rate.’
[107] The AWU submits:
‘This should be amended to read: “For each ordinary hour worked a casual employee must be paid…” The word “ordinary” does not appear in clause 10.5(b) of the current award. The wording in the exposure draft may constitute a significant substantive change. The issue is before the Casual Overtime Full Bench and the wording from the current award should be maintained until the issue is resolved in those proceedings.’ 61
[108] There was no opposition to the AWU’s proposal at the hearing on 11 October 2019. We agree with the AWU’s submission and will delete the word ‘ordinary’ from clause 11.2 in the Exposure Draft and amend the draft determination accordingly.
(ii) Schedule A.1.4
[109] The AWU submits that the overtime rate for afternoon shift is not 120% as stated in the first column and the correct rates appear in clause 20.6. 62
[110] Clause 20.6 states:
‘20.6 Overtime for shiftworkers—Afternoon shiftworker
(a) All time worked in excess of, or outside the ordinary working hours in clause 18.2 20.2 by a shiftworker, or on a shift other than a rostered shift, will be paid at 170% of the minimum hourly rate for the first three3 hours and 220% thereafter.
(b) When less than 7 hours 36 minutes’ notice has been given to the employer by a relief employee that they will be absent from work, and the employee whom the relief employee should relieve is not relieved and is required to continue to work on the employee’s rostered day off, the unrelieved employee will be paid 220% of the minimum hourly rate.
(c) This cClause 20.6 operates to the exclusion of clause 18.520.5.’
[111] The issue raised has a degree of complexity and turns on how the rates are calculated, which depends on the construction of clauses 22.3 and 22.6. We propose to seek further submissions in respect of this issue and will seek the views of the Fair Work Ombudsman.
(iii) Schedule A.1.5
[112] The AWU submits that it is unclear why a 100% ‘Day shift’ column has been included in an overtime rates table. 63 A 100% ‘Day Shift’ column has been included for transparency reasons; it is the base upon which the other rates in the schedule are calculated.
4.10 Hydrocarbons Industry (Upstream) Award 2010
[113] There are two issues in relation to this award.
(i) Clause 11.4
[114] Clause 11.4 states:
‘11.4 For each ordinary hour worked, a casual employee must be paid no less than:
(a) the ordinary hourly rate; and
(b) a loading of 25% of the ordinary hourly rate,
for the classification in which they are employed.’
[115] The AWU submits:
‘This should be amended to read: “For each ordinary hour worked, a casual employee must be paid no less than…” The word “ordinary” does not appear in clause 10.4(b) of the current award. The wording in the exposure draft may constitute a significant substantive change. The issue is before the Casual Overtime Full Bench and the wording from the current award should be maintained until the issue is resolved in those proceedings.’ 64
[116] There was no opposition to the AWU’s proposal at the hearing on 11 October 2019. We agree with the AWU’s submission and will delete the word ‘ordinary’ from the first line in clause 11.4 from the Exposure Draft and amend the variation determination accordingly.
(iii) Clauses 22.1(b) and (c)
[117] The second issue concerns clauses 22.1(b) and (c), which state:
‘22.1 Definition of overtime
…
(b) For a part-time employee, overtime is any time worked in excess of the part-time employee’s ordinary hours of work in clause 10—Part-time employees.
(c) For a casual employee overtime is any time worked in excess of the ordinary hours prescribed for casual employees in clause 11—Casual employees.’
[118] The AWU submits that ‘[r]eference should be added to clause 13 – Ordinary hours of work because the span of ordinary hours for all employees appears in this clause’. 65
[119] There was no opposition to the AWU’s proposal at the hearing on 11 October 2019. We agree with the AWU’s submission and will amend the variation determination to add a cross reference to clause 13, in clauses 22.1(b) and (c).
4.11 Mining Industry Award 2010
[120] Clause 2 of the Exposure Draft defines ‘casual ordinary hourly rate’ as follows:
‘casual ordinary hourly rate means the hourly rate for a casual employee for the employee’s classification specified in clause 15—Minimum rates and classifications plus the casual loading and the industry allowance. Where an employee is entitled to an additional all-purpose allowance, this allowance forms part of that employee’s ordinary hourly rate.’
[121] Ai Group submit that the definition of ‘casual ordinary hourly rate’ in clause 2 of the Exposure Draft be amended to make clear that where an employee is entitled to all-purpose allowances in addition to the industry allowance, they are to be included in the casual ordinary hourly rate in addition to the industry allowance. Ai Group submits that the current definition may be read to suggest that such allowances are to be so included in lieu of the industry allowance. 66
[122] Ai Group make a similar submission in relation to the definition of ‘ordinary hourly rate’ and submit that this definition should also be amended to make clear that where an employee is entitled to all-purpose allowances in addition to the industry allowance, they are to be included in the ordinary hourly rate in addition to the industry allowance. 67
[123] The AWU has no issue with the changes proposed by Ai Group. 68
[124] The AMWU does not agree that either the definition of ‘casual ordinary hourly rate’ or the ‘ordinary hourly rate’ are capable of being misconstrued in the manner suggested by Ai Group. 69 If the Commission is of the view that the definitions require amendments then the AMWU submits that the following form of words would be appropriate:70
‘casual ordinary hourly rate means the hourly rate for a casual employee for the employee’s classification specified in clause 15 – Minimum rates and classifications plus the casual loading and the industry allowance. Where an employee is entitled to an additional all-purpose allowance, this allowance also forms part of that employee’s ordinary hourly rate.
ordinary hourly rate means the hourly rate for an employee’s classification specified in clause 15 – Minimum rates and classifications plus the industry allowance. Where an employee is entitled to an additional all-purpose allowance, this allowance also forms part of that employee’s ordinary hourly rate.’
[125] Ai Group agreed that the issue it had raised could be resolved by the insertion of the word ‘also’, consistent with the approach taken in the Cement, Lime and Quarrying Award and the Cotton Ginning Award 2010. 71 We agree and will amend the definitions of ‘casual ordinary hourly rate’ and ‘ordinary hourly rate’ in clause 2. The variation determination will be amended accordingly.
[126] During the course of the hearing on 11 October 2019 it emerged that the issue of casual overtime rates is contested in this award. 72 We will hold a conference of interested parties in respect of this award to discuss how to proceed. We will not issue a variation determination in respect of this award at this time.
4.12 Nursery Award 2010
[127] The AWU raises an issue in relation to clause 13.2 of the Exposure Draft. Clause 13.2 states:
‘13.2 Ordinary hours of work
(a) The ordinary hours of work for full-time employees are an average of 38 per week but not exceeding 152 hours in 28 days.
(b) The ordinary hours of work may be worked between the hours of 6.00 am and 6.00 pm on any 5 out of 7 days. Provided that the ordinary hours of work may be worked between 6.00 am and 9.00 pm on one day per week between Monday and Friday.
(c) The ordinary hours of work will not exceed 8 hours on any day, provided that by arrangement between an employer and an employee ordinary working hours greater than 8 but not exceeding 10 on any day may be worked subject to:
(i) the employer and employee concerned being guided by relevant work health and safety provisions;
(ii) suitable roster arrangements being made; and
(iii) proper supervision being provided.’
[128] The AWU submits that ‘[t]o ensure compliance with s 147 a new subclause should be inserted’, as follows:
‘The ordinary hours of work for casual employees are the lesser of:
(i) an average of 38 per week but not exceeding 152 hours in 28 days; or
(ii) the hours required to be worked by the employer.’ 73
[129] There was no opposition to the AWU’s proposal at the hearing on 11 October 2019. We agree with the submission put and will insert the proposed new subclause into clause 13.2. We will amend the variation determination accordingly.
4.13 Oil Refining and Manufacturing Award 2010
[130] Six issues arise in respect of this award.
(i) Clause 11.3(a)
[131] Clause 11.3(a) states:
‘11.3 Casual loading
(a) For each ordinary hour worked, a casual employee must be paid:
(i) the ordinary hourly rate; and
(ii) a loading of 25% of the ordinary hourly rate,
for the classification in which they are employed.’
[132] The AWU submits:
‘This should be amended to read: “For each ordinary hour worked, a casual employee must be paid…” The word “ordinary” does not appear in clause 10.3(b) of the current award. The wording in the exposure draft may constitute a significant substantive change. The issue is before the Casual Overtime Full Bench and the wording from the current award should be maintained until the issue is resolved in those proceedings.’ 74
[133] There was no opposition to the AWU’s proposed amendment to clause 11.3(a) at the hearing on 11 October 2019. We agree with the submission put and will amend the variation determination accordingly. During the course of the hearing on 11 October 2019, Ai Group raised a related issue, namely that the cross reference to ‘clause 22.5’ in clause 22.5(b) of the Exposure Draft should be amended to ‘clause 22’. 75 There was no opposition to Ai Group’s proposed amendment and we will amend the variation determination accordingly.
(ii) Schedule C.2.1
[134] Schedule C.2.1 of the Exposure Draft provides as follows:
‘The following expense-related allowances will be payable to employees in accordance with clause 19.3:
Allowance |
Clause |
$ |
Payable |
Meal allowance—overtime |
19.3(a) |
14.70
|
per meal |
…’
[135] Clause 19.3(a)(i) states as follows:
‘An employee will be paid a meal allowance of $14.70 on each occasion that the employee is entitled to a rest break during overtime work in accordance with clause 22—Overtime.’
[136] The AMWU submit that the term ‘per meal’ in the payable column should be changed to ‘per rest break’, to better reflect the frequency with which the allowance is payable in accordance with clause 19.3(a)(i). 76
[137] Ai Group also raise an issue in relation to the table and submit that, consistent with clause 19.3(a), the reference to ‘per meal’ should be replaced with ‘per occasion’. 77
[138] In the October 2019 Statement we expressed the provisional view that the table in Schedule C.2.1 be amended as proposed by Ai Group. At the hearing on 11 October 2019 there was no opposition to our provisional view. We confirm that the table in Schedule C.2.1 will be amended as proposed by Ai Group.
(iii) Clauses 23.2 and 23.7(b)
[139] Clauses 23.2 and 23.7(b) state:
‘23.2 Calculation of penalties
Any payments under this clause 23 are in substitution of any other loadings or penalty rates.
…
23.7 Method of calculation
…
(b) Any payments under this clause 23 are in substitution of any other loadings or penalty rates.’
[140] The AWU submit that the content in these two provisions is repeated. 78 In the October 2019 Statement we indicated our agreement with the submission put and expressed the provisional view that clause 23.2 be deleted. There was no opposition to our provisional view at the hearing on 11 October 2019. We confirm that clause 23.2 will be deleted and the variation determination will be amended accordingly.
(iv) Clause 23.3
[141] Clause 23.3 of the Exposure Draft states:
‘23.3 Shiftwork penalties
(a) A shiftworker or continuous shiftworker must be paid 115% of the ordinary hourly rate for each ordinary hour worked on afternoon shift or night shift.
(b) A shiftworker must be paid 120% of the ordinary hourly rate for each ordinary hour worked on permanent afternoon shift.
(c) A shiftworker or continuous shiftworker must be paid 130% of the ordinary hourly rate for each ordinary hour worked on permanent night shift.’
[142] In relation to 23.3—shiftwork penalties, Ai Group submit that clause 23.3 does not properly characterise the amounts payable under that clause and that the heading of the clause suggests that the clause requires the payment of a penalty whereas the clause prescribes a rate that is payable for such time worked; the amount prescribed is not a penalty that is payable in addition to the base rate of pay. 79 Ai Group submit that the title to clause 23.3 be amended, from ‘Shiftwork penalties’ to ‘Shiftwork penalty rates’.
[143] The AMWU accepts the central premise of Ai Group’s contention but does not agree that any amendment to the clause or the heading is necessary as the substantive content of clause 23.3 leaves the reader in no doubt as to what is required to be paid. 80
[144] In the October 2019 Statement we expressed the provisional view that the title to clause 23.3 be amended as proposed by Ai Group. There was no opposition to our provisional view at the 11 October 2019 hearing. We confirm that the title to clause 23.3 will be amended as proposed by Ai Group.
(v) Clauses 18.1(a)(i) and 18.2(b)(i)
[145] Ai Group submit that the purpose and effect of the words “(other than clause 18.1)” in clause 18.1(a)(i), and “(other than clause 18.2)” in clause 18.2(b)(i) is unclear and the words should be deleted. 81 The AMWU82 and AWU83 agree with Ai Group.
[146] In the October 2019 Statement we indicated our agreement with the submission put and expressed the provisional view that the bracketed words be deleted. 84 There was no opposition to our provisional view at the 11 October 2019 hearing. We confirm that the bracketed words in clauses 18.1(a)(i) and 18.2(b)(i) will be deleted.
(vi) Schedule B3 rates
[147] Ai Group state that it is their understanding that there is a disagreement between the interested parties regarding the proper approach to calculating various rates contained at Schedule B.3 of the Exposure Draft, including public holiday rates, shiftwork rates and weekend penalty rates. 85 Ai Group submit that by virtue of clause 24.3(b) of the award, casual employees are not entitled to the casual loading where overtime rates, shiftwork penalties, weekend penalties or public holiday penalties are payable.86 They submit that the award should not be varied to include B.3 until the Full Bench in AM2017/51 (Overtime for causals) has finalised these matters.
[148] The AMWU disputes Ai Group’s construction of the award but is not opposed to the table of rates being inserted after AM2017/51 is finalised. The AMWU also notes that there are no casual overtime rates in clause B.3 and depending on the outcome of the proceedings in AM2017/51 parties should be entitled to request that such rates be included in the tables in B.3. 87
[149] In the October 2019 Statement we expressed the provisional view that the contested tables not be included in the variation determination until these matters have been finalised in AM2017/51. There was no opposition to our provisional view at the 11 October 2019 hearing. We will delete the relevant tables from the variation determination.
4.14 Pharmacy Industry Award 2010
[150] The Association of Professional Engineers, Scientists and Managers Australia (Professionals Australia) notes that the decision [2019] FWCFB 3949 and determination PR709577 varying clauses 17 and 19 of the Pharmacy Award contain an operative date of 1 October 2019, and that these variations should also be included in the Exposure Draft to ensure that it contains all relevant provisions applying at the time it is published. 88
[151] In the October 2019 Statement we indicated our agreement with the submission put and expressed the provisional view that the Exposure Draft and variation determination be amended to reflect determination PR709577. There was no opposition to our provisional view at the hearing on 11 October 2019. We confirm our view and will amend the variation determination accordingly.
[152] The Pharmacy Guild of Australia has raised a number of issues regarding the Plain Language draft in submissions dated 15 March and 18 September 2019. As set out in a Statement 89 these matters will be the subject of a conference before the President on Tuesday, 26 November 2019 at 9.30 am.
4.15 Premixed Concrete Award 2010
[153] Four issues arise in respect of this award.
(i) Definition of ‘ordinary hourly rate’
[154] Clause 2 of the Exposure Draft defines ‘ordinary hourly rate’ as follows:
ordinary hourly rate means the hourly rate for an employee’s classification specified in clause 16—Minimum rates, inclusive of the industry allowance. Where an employee is entitled to an additional all-purpose allowance, this allowance forms part of that employee’s ordinary hourly rate.
[155] Ai Group submit that the definition of ‘ordinary hourly rate’ in clause 2 of the Exposure Draft be amended to make clear that where an employee is entitled to all-purpose allowances in addition to the industry allowance, they are to be included in the ordinary hourly rate in addition to the industry allowance. Ai Group is concerned that the current definition may be read to suggest that such allowances are to be so included in lieu of the industry allowance. 90
[156] At the hearing on 11 October 2019, Ai Group agreed that the issue it had raised could be resolved by the insertion of the word ‘also’ consistent with the approach taken in the Cement, Lime and Quarrying Award, the Cotton Ginning Award and the Mining Award. 91 We agree and will amend the definition of ‘ordinary hourly rate’ in clause 2. The variation determination will be varied accordingly.
(ii) Clause 11.2(a)
[157] Clause 11.2(a) states:
‘11.2 Casual loading
(a) For each ordinary hour worked, a casual employee must be paid:
(i) the ordinary hourly rate for the classification in which they are employed; and
(ii) a loading of 25% of the ordinary hourly rate for the classification in which they are employed.’
[158] The AWU submits:
‘This should be amended to read: “For each ordinary hour worked, a casual employee must be paid…” The word “ordinary” does not appear in clause 10.5(b) of the current award. The wording in the exposure draft may constitute a significant substantive change. The issue is before the Casual Overtime Full Bench and the wording from the current award should be maintained until the issue is resolved in those proceedings.’ 92
[159] There was no opposition to the AWU’s proposed amendment at the 11 October 2019 hearing. We agree with the submission put and will amend clause 11.2(a) and the variation determination accordingly.
(iii) Clause 20.2
[160] Clause 20.2 states:
‘20.2 Overtime rates
Where an employee works overtime the employer must pay to the employee the overtime rates as follows:
For overtime worked on |
Overtime rate |
Casual overtime rate |
Minimum payment |
% of ordinary hourly rate |
|||
Monday to Friday – first 2 hours |
150% |
175% |
- |
Monday to Friday – after 2 hours |
200% |
225% |
- |
Saturday – first 2 hours |
150% |
175% |
4 hours |
Saturday – after 2 hours |
200% |
225% |
4 hours |
Sunday all day |
200% |
225% |
4 hours |
…’
[161] The AWU submits:
‘A row for overtime on public holidays should be inserted with 250% and 275% for casual employees and clause 20.2 should then be cross-referenced in clause 27.2. Otherwise, the exposure draft only prescribes a penalty rate for ordinary hours on public holidays in clause 21.1. Clause 27.3 of the current award prescribes a double time and a half rate for all work on public holidays.’ 93
[162] There was no opposition to the AWU’s proposed amendment at the 11 October 2019 hearing. We agree with the submission put and will amend the table at clause 20.2 and the variation determination accordingly. Further, as Ai Group pointed out 94 the table also deals with minimum payments and there is no minimum payment required for work on a public holiday. Accordingly the table will not prescribe a minimum payment for public holidays.
4.16 Real Estate Industry Award 2010
[163] Schedule B—Summary of Hourly Rates of Pay, at table B.2.2 sets out rates of pay for Adult casual employees for “overtime on rostered day off” and clause 13.3(a) of the Exposure Draft reads:
‘13.3 Rostered time off
(a) An employee, other than a casual, will be allowed either one and a half or rostered days free of duty each week.’
[164] Given casuals appear to be excluded from the operation of clause 13.3, the rates included in the table at B.2.2 appear to be in error. We propose to delete these rates from the variation determination. Should any party oppose this course of action, they are to advise the Commission by no later than 4pm on Friday, 8 November 2019. If no opposition is received, the amendment will be made and a variation determination will be issued.
4.17 Salt Industry Award 2010
[165] Five issues arise in respect of the Exposure Draft.
(i) Clause 4.4
[166] Clause 4.4 reads:
‘This award covers employers which provide group training services for apprentices and/or trainees engaged in the industry and/or parts of industry set out at clause 4.1 and those apprentices and/or trainees engaged by a group training service hosted by a company to perform work at a location where the activities described in clause 4.2 are being performed. This subclause Clause 4.4 operates subject to the exclusions from coverage in this award.’
[167] Ai Group submit that consistent with the approach adopted in other Exposure Drafts, the word ‘salt’ should be inserted before ‘industry’ the first time it appears in the second line at clause 4.4. 95 There was no opposition to Ai Group’s proposed amendment to clause 4.4 at the hearing on 11 October 2019. We agree with the submission put and will amend clause 4.4 to insert the word ‘salt’ before the word industry. The variation determination will be amended accordingly.
(ii) Clause 22.1
[168] Clause 22.1 of the Exposure Draft states:
‘22.1 Shiftwork penalties
(a) A shiftworker whilst on afternoon or night shift must be paid 115% of the ordinary hourly rate.
(b) A shiftworker on permanent night shift must be paid 130% of the ordinary hourly base rate of pay.’
[169] Ai Group contend that the ‘shiftwork penalties’ at clause 22.1 are inappropriately characterised. They state that the heading of the clause suggests that the provision requires the payment of a penalty, however the clause prescribes a rate that is payable for such time worked; the amount prescribed is not a penalty that is payable in addition to the base rate of pay. 96 Ai Group propose an amendment to the heading to address this issue as follows:
‘22.1 Shiftwork penaltyies rates’
[170] In the October 2019 Statement we expressed the provisional view that the heading to clause 22.1 be amended as proposed by Ai Group. There was no opposition to our provisional view at the 11 October 2019 hearing. We confirm our view and will amend the variation determination accordingly.
(iii) Clause 11.3(a)
[171] Clause 11.3(a) reads:
‘11.3 Casual loading
(a) For each ordinary hour worked, a casual employee must be paid:
(i) the ordinary hourly rate for their classification; and
(ii) a loading of 25% of the ordinary hourly rate.
(b) The loading constitutes part of the casual employee’s rate of pay for all purposes.
(c) The casual loading is paid instead of annual leave, paid personal/carer’s leave, notice of termination, redundancy benefits and the other conditions of full-time or part-time employment.’
[172] The AWU submits:
‘This should be amended to read: “For each ordinary hour worked, a casual employee must be paid…” The word “ordinary” does not appear in clause 10.3(b) of the current award. The casual loading is paid for all purposes so there should be no dispute about it being paid on overtime.’ 97
[173] During the course of the hearing on 11 October 2019 it emerged that the issue of casual overtime rates is contested in this award. 98 We propose to hold a conference of interested parties in respect of this award to discuss how to proceed. We will not issue a variation determination in respect of this award at this time.
(iv) Clause 21.1
[174] Clause 21.1 reads:
‘21.1 Definition of overtime
(a) For a full-time employee (including a shiftworker), overtime is any time worked in excess of an average of 38 hours per week.
(b) For a part-time employee (including a shiftworker), hours worked in excess of the employee’s ordinary hours (determined in accordance with clause 10.3) will be paid at the appropriate overtime rate.
(c) For a casual employee (including a shiftworker), overtime is anytime worked in excess of an average of 38 hours per week.’
[175] The AWU submits:
‘These provisions are misleading because they indicate overtime is only payable when an employee works in excess of their maximum weekly ordinary hours. However, overtime is also payable for hours outside those specified in clause 13-Ordinary hours of work. Reference to “or outside the ordinary hours specified in clause 13-Ordinary hours of work” should be added into clause 21.1(a),(b) and (c).’ 99
[176] The proposed change is contested by Ai Group. At the hearing on 11 October 2019 the AWU indicated that it would give further consideration to this issue and would discuss it further with Ai Group and ABI. 100 In its submission of 23 October 2019 Ai Group submitted that:
‘12. Ai Group, ABI and the AWU agree that in order to address the concern raised by the AWU about clause 21.1 of the exposure draft, it should be deleted.’ 101
[177] In accordance with the views of the interested parties we will delete clause 21.1.
(v) Schedule B.1.1
[178] The AWU submits:
‘It isn’t clear whether a day worker can work ordinary hours on a public holiday under this award. The 200% rate appears directed at shiftworkers.’ 102
[179] In its submission of 23 October 2019, Ai Group advised that the AWU no longer presses its submission in respect of Schedule B.1.1. 103
4.18 Seafood Processing Award 2010
[180] The AWU raises two issues in relation to the Exposure Draft. The first relates to clause 11.2(a), which states:
‘11.2 Casual loading
(a) For each ordinary hour worked, a casual employee must be paid:
(i) the minimum hourly rate; and
(ii) a loading of 25% of the minimum hourly rate,
for the classification in which they are employed.
(b) The loading constitutes part of the casual employee’s all-purpose rate.’
[181] The AWU submits:
‘This should be amended to read: “For each ordinary hour worked, a casual employee must be paid…” The casual loading is paid for all purposes so there should be no dispute about it being paid on overtime.’ 104
[182] The second issue concerns Schedules A.2.4 and A.2.5. The AWU submits that the reference to ‘% of minimum hourly rate’ should be ‘% of casual ordinary hourly rate.’ 105
[183] There was no opposition to the AWU’s proposed amendments at the 11 October 2019 hearing. We agree with the submissions put and will amend clause 11.2(a) and Schedules A.2.4 and A.2.5, and the variation determination, accordingly.
4.19 Silviculture Award 2010
[184] The AWU raises two issues in relation to this Exposure Draft. The first concerns clause 15.1, which states:
‘15.1 Minimum rates
15.1 Employees are entitled to the following minimum wages for the classification in which they are employed:
Classification |
Minimum weekly
|
Minimum hourly
|
Ordinary weekly rate |
Silviculture and afforestation worker grade 1 |
792.80 |
20.86 |
859.40 |
Silviculture and afforestation worker grade 2 |
823.80 |
21.68 |
891.40 |
Silviculture and afforestation worker grade 3 |
838.80 |
22.07 |
906.80 |
Silviculture and afforestation worker grade 4 |
859.20 |
22.61 |
927.90 |
Silviculture and afforestation worker grade 5 |
875.00 |
23.03 |
944.20 |
Silviculture and afforestation worker grade 6 |
882.30 |
23.22 |
951.70 |
[185] The AWU submits that the inclusion of an ‘Ordinary weekly rate’ column ‘appears inconsistent with other exposure drafts.’ 106 At the hearing on 11 October 2019 the reason for the inclusion of the ‘Ordinary weekly rate’ column was explained and the AWU did not press the point.107
[186] The second issue concerns clause 20.12(a), which states:
‘20.12 Sundays and public holidays
…
(a) Subject to this clause 20.12, the provisions of clause 27—Public holidays will apply to shiftworkers.’
[187] The AWU submits that ‘it appears the public holiday rate of 250% of the ordinary hourly rate should be inserted here or the references are circular.’ 108
[188] There was no opposition to the AWU’s submission at the hearing on 11 October 2019. We agree with the submission put that clause 20.12(a) should be amended to provide greater clarity. We will amend the variation determination accordingly.
4.20 Surveying Award 2010
[189] Clause 11.2 of the Exposure Draft states:
‘For each ordinary hour worked, a casual employee will be paid the minimum hourly rate for the work performed. In addition, a casual employee will receive a 25% loading.’
[190] Clause 11.2(b) of the current award states:
‘11.2 Casual employment
…
(b) A casual employee will be paid per hour 1/38th of the weekly rate prescribed in this award for the work performed. In addition, a casual employee will receive a 25% loading instead of annual leave, personal/carer’s leave, bereavement leave and public holidays.’
[191] The AMWU submits that the change in the language between clause 11.2 of the Exposure Draft and clause 11.2(b) of the current award may constitute a substantive change. The AMWU acknowledges that the drafting of clause 11.2 has been the same as previous iterations of the Exposure Draft, however it has only just identified this issue in this round of publication. It proposes the following amendment to clause 11.2 of the Exposure Draft:
‘For each ordinary hour worked, a casual employee will be paid the minimum hourly rate for the work being performed. In addition, a casual employee will receive a 25% loading.’ 109
[192] There was no opposition to the AMWU’s proposed amendment to clause 11.2 at the hearing on 11 October 2019. We agree with the submission put and will vary clause 11.2 in the variation determination accordingly.
4.21 Water Industry Award 2010
[193] In relation to the note under the heading in clauses 15.4—Higher duties, and 18.3(c)—Transfers, travelling and working away from normal starting point, Ai Group submit that there are no substantive matters before the Commission. It refers to correspondence from United Voice withdrawing its claim. 110
[194] In the October 2019 Statement we indicated our agreement with Ai Group’s submission and expressed the provisional view that the note be deleted. There was no opposition to our provisional view at the hearing on 11 October 2019 and we confirm that the note will be deleted and the variation determination amended accordingly.
4.22 Wool Storage, Sampling and Testing Award 2010
[195] Four issues arise in relation to the Exposure Draft.
(i) Clause 11.3(a)
[196] Clause 11.3(a) reads:
‘11.3 Casual loading
(a) For each ordinary hour worked, a casual employee must be paid:
(i) the minimum hourly rate in clause 16.1; and
(ii) a loading of 25% of the minimum hourly rate.’
[197] The AWU submits:
‘This should be amended to read: “For each ordinary hour worked, a casual employee must be paid…” The word “ordinary” does not appear in clause 10.3(b) of the current award. The wording in the exposure draft may constitute a significant substantive change. The issue is before the Casual Overtime Full Bench and the wording from the current award should be maintained until the issue is resolved in those proceedings.’ 111
[198] The proposed amendment is opposed by ABI and Ai Group. The issue of casual overtime rates is contested. We propose to hold a conference of interested parties in respect of this award to discuss how to proceed. We will not issue a variation determination in respect of this award at this time. 112
(ii) Clause 22.2
[199] Clause 22.2 of the Exposure Draft states:
‘22.2 Shiftwork penalties
(a) A shiftworker or continuous shiftworker whilst on afternoon shift or night shift must be paid 115% of the minimum hourly rate.
(b) A shiftworker or continuous shiftworker whilst on permanent night shift must be paid 130% of the minimum hourly rate.’
[200] Ai Group is concerned that the shiftwork penalties in clause 22.2 are inappropriately classified. They submit that the clause purportedly requires the payment of a penalty. The clause however prescribes a rate that is payable for such time worked; the amount prescribed is not a penalty that is payable in addition to the base rate of pay. 113 Ai Group propose that the heading of the clause be changed to ‘Shiftwork penalty rates’. In the October 2019 Statement we expressed the provisional view that the title to clause 22.2 be amended as proposed by Ai Group. There was no opposition to our provisional view at the hearing on 11 October 2019 and we confirm that the title of clause 22.2 will be amended as proposed by Ai Group. The variation determination will be amended accordingly.
(iii) Schedule B.1
[201] The AWU submits:
‘The rates tables do not appear correct. The tables indicate day workers can work ordinary hours on the weekend and shiftworkers cannot – whereas the opposite is correct. The weekend and public holiday penalty rates should be moved from the day work table to the shiftwork tables for permanent and casual employees.’ 114
[202] Ai Group opposed the AWU’s interpretation of the relevant award provisions. The issues in contention were the subject of further discussions between ABI, Ai Group and the AWU. In its submission of 23 October 2019, Ai Group reported the parties’ agreement to the following changes being made to the Exposure Draft:
‘(a) The deletion of the ‘Saturday’ and ‘Sunday’ column from B.1.1.
(b) The insertion of the following columns at B.1.2:
(i) Saturday, first 2 hours: 150% of the minimum hourly rate;
(ii) Saturday, after 2 hours: 200% of the minimum hourly rate;
(iii) Sunday: 200% of the minimum hourly rate; and
(iv) Public holidays: 250% of the minimum hourly rate.’ 115
[203] We will make the proposed changes to the Exposure Draft and will amend the draft variation determination accordingly. 116
(iv) Schedule C.1.1
[204] Ai Group lastly note that the standard rate prescribed in Schedule C.1.1 has not been updated to reflect the outcome of the previous Annual Wage Review decision. They also note that the allowances in the table at C.1.1 are incorrect. 117 In the October 2019 Statement we expressed the provisional view that the standard rate in Schedule C.1.1 and the allowances in the table at C.1.1 be corrected as proposed by Ai Group. There was no opposition to our provisional view at the hearing on 11 October 2019. We confirm our view. The standard rate in Schedule C.1.1 and the allowances in the table in C.1.1 will be corrected as proposed by Ai Group. We will amend the variation determination accordingly.
[205] As mentioned earlier, in the September 2019 Decision we expressed the provisional view that the variation of the 37 modern awards in Tranche 1 in accordance with the draft variation determinations was, in respect of each of the awards, necessary to achieve the modern awards objective. No submissions were made contesting our provisional view in respect of the following 14 awards:
• Book Industry Award 2010
• Car Parking Award 2010
• Coal Export Terminals Award 2010
• Corrections and Detentions (Private Sector) Award 2010
• Fire Fighting Industry Award 2010
• Gardening and Landscaping Services Award 2010
• Legal Services Award 2010
• Market and Social Research Award 2010
• Medical Practitioners Award 2010
• Port Authorities Award 2010
• Racing Industry Ground Maintenance Award 2010
• Sporting Organisations Award 2010
• State Government Agencies Award 2010
• Travelling Shows Award 2010
[206] We confirm our provisional views and will issue the variation determinations in respect of each of these awards in the terms published on 2 September 2019, subject to an amendment to delete the note in the Schedule of Rates (see [21] – [23] above). 118 These variation determinations will be published by no later than 25 November 2019 and will commence operation on 4 February 2020.
[207] Minor typographical or other errors have been identified in the Exposure Drafts relating to the 14 awards listed in [24] above. As noted at [26] above we propose to correct all of the errors identified in the footnotes to [24] and will amend the variation determinations accordingly. In 13 of these 14 awards other, more substantive, award related issues were raised. In the other award with minor errors - the Electrical Power Industry Award 2010 - no other issues were raised.
[208] Subject to the correction of the identified errors there was no opposition to our provisional view that the variation of the Electrical Power Industry Award 2010 in accordance with the draft variation determination is necessary to achieve the modern awards objective. We confirm our provisional view and will issue a variation determination in respect of this award in the terms published on 2 September 2019, subject to amendments to correct the errors identified in the footnotes to [24]; to remove any contested overtime for casuals and casual conversion terms or schedules (see [12] – [18]); and to delete the note in the Schedule of Rates (see [21] – [23]).
[209] In Section 4 of this decision we dealt with more substantive award specific issues in respect of 21 of the Tranche 1 modern awards. In three of those 21 modern awards casual overtime rates are contested. These three awards are:
• Mining Industry Award 2010
• Salt Industry Award 2010
• Wool Storage, Sampling and Testing Award 2010
[210] Conferences of interested parties will be convened by the Commission in respect of each of these awards to discuss how to proceed. We will not issue variation determinations in respect of these three awards at this time. Conferences will be listed on the following dates:
• Salt Industry Award 2010 – 11:30am on Tuesday 26 November 2019;
• Mining Industry Award 2010 – 12:30pm on Tuesday 26 November 2019; and
• Wool Storage, Sampling and Testing Award 2010 – 11am on Friday 29 November 2019.
[211] A Notice of Listing will be published shortly in respect of each conference.
[212] In one of these 21 awards – the Funeral Industry Award 2010 – one of the issues raised has a degree of complexity and turns on how the rates are calculated, which depends on the construction of clauses 22.3 and 22.6. We propose to seek further submissions in respect of this issue and will seek the views of the Fair Work Ombudsman. We will not issue a variation determination in respect of this award at this time.
[213] In another modern award, the Real Estate Industry Award 2010, we proposed to delete rates of pay in Schedule B relating to Adult Casual employees. Parties have until 4pm on Friday, 8 November 2019 to advise if they oppose the proposed deletion. Should there be no opposition received, the variation determination will be issued.
[214] Decisions have been made in respect of the disputed issues in the remaining 17 of the awards in Section 4, namely:
• Aluminium Industry Award 2010
• Ambulance and Patient Transport Industry Award 2010
• Animal Care and Veterinary Services Award 2010
• Aquaculture Industry Award 2010
• Banking, Finance and Insurance Award 2010
• Cement, Lime and Quarrying Award 2010
• Cemetery Industry Award 2010
• Cotton Ginning Award 2010
• Hydrocarbons Industry (Upstream) Award 2010
• Nursery Award 2010
• Oil Refining and Manufacturing Award 2010
• Pharmacy Industry Award 2010
• Premixed Concrete Award 2010
• Seafood Processing Award 2010
• Silviculture Award 2010
• Surveying Award 2010
• Water Industry Award 2010.
[215] The variation determinations published on 2 September 2019 in respect of the 17 modern awards at [214] above will be amended to correct any of the errors identified in [24] above; to remove any contested overtime for casuals and casual conversion terms or Schedules (see [12] – [18] above); to delete the note in the Schedule of Rates (see [21] – [23] above); and to make the variations we have determined in Section 4 of this decision (the amended variation determinations). 119 We confirm our provisional view that, with the exception of the Pharmacy Industry Award 2010,120 the variation of the modern awards in [214], in accordance with the amended variation determinations is, in respect of each of the awards, necessary to achieve the modern awards objective.
[216] If any of the 32 modern awards which we propose to vary is the subject of another variation determination between the publication of the variation determinations arising from this decision (on 25 November 2019) and when those variation determinations commence operation (on 4 February 2020), a conference will be convened to provide all parties interested in the affected award with an opportunity to be heard in relation to the appropriate course of action.
PRESIDENT
Printed by authority of the Commonwealth Government Printer
<PR713430>
Appearance list
R. Bhatt for the Australian Industry Group
N. Dabarera for United Voice
G. Miller with J. Rabaud for the AMWU
L. Izzo with H. Hamberger for ABI and NSWBC
E. Silus for CFMMEU-Mining Managing Division
S. Crawford for the Australian Workers Union
2 The Business Equipment Award 2010, Graphic Arts, Printing and Publishing Award 2010 and Telecommunications Services Award 2010 were initially included in Tranche 1 but have been moved to Tranche 3 in accordance with a request from the Australian Industry Group (Ai Group); see [2019] FWCFB 6562.
3 As amended by [2019] FWCFB 6562.
5 Ai Group submission, 20 September 2019, at para 3.
6 AMWU submission, 8 October 2019, at para 14.
7 Transcript, 11 October 2019.
8 ABI submission, 27 September 2019, at para 9.
9 ABI submission, 27 September 2019, at para 11.
10 ABI submission, 27 September 2019, at paras 12-13.
11 AMWU reply submission, 9 October 2019, at para 9.
12 Ai Group submission, 20 September 2019, at para 28.
13 AMWU reply submission, 8 October 2019, at para 16.
14 Ai Group submission, 20 September 2019, at para 23.
15 AMWU reply submission, 8 October 2019, at para 18.
16 AWU submission 9 October 2019 at para 9, cross reference error in clause 20.1(a)(i); para 11 cross references error in clause 27.
17 Ai Group submission, 20 September 2019 at para 11, the word ‘the’ should be inserted before ‘work’ in clause 2; at para 15, the reference to clause 17 in clause 7.2 should be to clause 17.1; at para 18, the reference to ‘shift penalties’ in clause 20.3(b) should be changed to ‘shift loadings’; at para 22, note 1 in clause 22.7 should be amended to refer to ‘clause 22.7(d)’ instead of ‘clause 22.7(b). AWU submission 9 October 2019 para 5, formatting issue at the end of clause 17.5(a); para 7: missing full stop in clause 22.5(a).
18 United Voice submission, 20 September 2019 at para 6, regarding typographical error at clause 16.1(b).
19 Ai Group submission, 20 September 2019 at para 25, the reference to clause 16 in clause 7.2 should be to clause 16.1; at para 29 the word ‘rates’ should be inserted after ‘minimum’ in clause 17.1(a)(i); at para 30 the cross reference in clause 27.2 should be to clause 27.4, not clause 27.2.
20 Ai Group submission, 20 September 2019 at para 34, regarding cross referencing error in clause 4.1; para 36, the reference to clause 17 in clause 7.2 should be to clause 17.1(b). See also ABI and NSWBC submission, 27 September 2019 at para 11 regarding typographical error in clause 14.5.
21 Ai Group submission, 20 September 2019 at para 43, regarding typographical errors in clause 2; para 50, the reference to clause 18 in clause 7.2 should be to clause 18.1.
22 Ai Group submission 20 September 2019 at para 58, delete the subheadings ‘penalty rates’ in clause 20.1.
23 Ai Group submission, at paras 81, 82 and 83 regarding cross reference errors in clauses 4.4 and 7.2; at para 83 the words ’13. Ordinary hours of work’ in clause 9 should be deleted; at para 86, replace ‘Minimum rates’ with ‘Overtime’ in clause 15.6; para 88, the semi colon at the end of clause 22.2 should be replaced with a full stop.
24 ABI and NSWBC submission, 27 September 2019 at paras 21-22 regarding cross referencing error in clause 17.4(a).
25 Ai Group submission, 20 September 2019 at para 91, the reference to (b) before 4.2 should be deleted; at para 96, the reference to ‘clause 23.6’ in clause 23.5 should be deleted and replaced with a reference to ‘clause 23.3’.
26 AWU submission 9 October 2019 at para 36, the cross reference in clauses 20.6 and 20.7(f) should be to clause 20.5.
27 AWU submission 9 October 2019 at para 38, in clause 13.2 the reference to clause 8.3 should be to clause 13.3.
28 AMWU submission, 30 September 2019 at paras 21-24, the cross reference to ‘4.2’ should be deleted, see also Ai Group submission, 20 September 2019 at para 102 regarding the same issue; Ai Group submission, 20 September 2019, at para 105 the reference to ‘clause 17.4’ in clause 17.4 should be changed to ‘clause 17’; at paras 107 and 109 regarding cross referencing issue in clause 21.5 (reference to ‘clause 18.5’ should be replaced with ‘clause 21.5’ and C.1.1 (the reference to clause ‘18.3(c)(iv)’ should be replaced with ‘18.3’(c)(v).
29 Ai Group submission, 20 September 2019 at para 111, the cross reference to clause 29 in clause 14.1(b)(v) should be replaced with a reference to ‘clause 30 – Consultation about changes to rosters or hours of work’; at para 113, regarding cross referencing error in clause 18.5.
30 Ai Group submission, 20 September 2019, at para 10.
31 Ai Group submission, 20 September 2019, at para 12.
32 Ai Group submission, 20 September 2019, at para 16.
33 Ai Group submission, 20 September 2019, at para 17.
34 Ai Group submission, 20 September 2019, at paras 19-20.
35 RACV Road Service Pty Ltd v Australian Municipal, Administrative, Clerical and Services Union [2015] FWCFB
8554.
36 AWU submission 9 October 2019, at para 6.
37 Ai Group submission, 23 October 2019, at [3]-[7].
38 AWU submission 9 October 2019, at para 8.
39 AWU submission 9 October 2019, at para 8.
40 United Voice submission, 20 September 2019, at para 7.
41 United Voice submission, 20 September 2019, at para 9.
42 United Voice submission, 20 September 2019, at para 10.
43 United Voice submission, 20 September 2019, at para 13.
44 AWU submission, 9 October 2019, at para 10.
45 AWU submission, 9 October 2019, at para 11.
46 Ai Group submission, 20 September 2019, at para 26.
47 Ai Group submission, 20 September 2019, at para 33.
48 Transcript, 11 October 2019 at PN145-PN149.
49 ABI and NSWBC submission, 27 September 2019, at paras 18-20.
50 AWU submission, 9 October 2019, at para 13.
51 Transcript, 11 October 2019 at PN156.
52 AWU submission, 9 October 2019, at para 13.
53 AWU submission, 9 October 2019, at para 16.
54 Ai Group submission, 20 September 2019, at para 44.
55 Ai Group submission, 20 September 2019, at para 45.
56 Ai Group submission, 20 September 2019, at para 46.
57 AWU submission, 9 October 2019, at para 17.
58 Transcript, 11 October 2019, at PN181 – PN187.
59 Transcript, 11 October 2019, at PN174 – PN187.
60 Ai Group submission, 20 September 2019, at para 55.
61 AWU submission, 9 October 2019, at para 18.
62 AWU submission, 9 October 2019, at para 19.
63 AWU submission, 9 October 2019, at para 20.
64 AWU submission, 9 October 2019, at para 21.
65 AWU submission, 9 October 2019, at para 22.
66 Ai Group submission, 20 September 2019, at para 64.
67 Ai Group submission, 20 September 2019, at para 65.
68 AWU submission, 9 October 2019, at para 23.
69 AMWU reply submission, 9 October 2019, at para 26.
70 AMWU reply submission, 9 October 2019, at para 27.
71 Transcript, 11 October 2019, at PN197 – PN199.
72 Transcript, 11 October 2019, at PN202 – PN203.
73 AWU submission, 9 October 2019, at para 24.
74 AWU submission, 9 October 2019, at para 25.
75 Transcript, 11 October 2019, at PN206 – PN223.
76 AMWU submission, 30 September 2019, at paras 9-12.
77 Ai Group submission, 20 September 2019, at para 77.
78 AWU submission, 9 October 2019, at para 26.
79 Ai Group submission, 20 September 2019, at para 72.
80 AMWU reply submission, 9 October 2019, at paras 31-32.
81 Ai Group submission, 20 September 2019, at paras 70-71.
82 AMWU reply submission, 9 October 2019, at para 29.
83 AWU submission, 9 October 2019, at para 26.
84 Ai Group submission, 20 September 2019, at paras 70-71.
85 Ai Group submission, 20 September 2019, at para 74.
86 Ai Group submission, 20 September 2019, at paras 74-76.
87 AMWU reply submission, 9 October 2019, at paras 34-35.
88 APESMA submission/Professionals Australia Submission, 20 September 2019.
89 [2019] FWCFB 6899 at [152]. NB an amended notice of listing will be issued.
90 Ai Group submission, 20 September 2019, at para 80.
91 Transcript, 11 October 2019, at PN234 – PN236.
92 AWU submission, 9 October 2019, at para 28.
93 AWU submission, 9 October 2019, at para 29.
94 Transcript, 11 October 2019, at PN237 – PN243; Ai Group submission, 23 October 2019 at [10]-[11].
95 Ai Group submission, 20 September 2019, at para 92.
96 Ai Group submission, 20 September 2019, at paras 94-95.
97 AWU submission, 9 October 2019, at para 32.
98 Transcript, 11 October 2019, at PN258 – PN263.
99 AWU submission, 9 October 2019, at para 33.
100 Transcript, 11 October 2019, at PN268 – PN276..
101 Ai Group submission, 23 October 2019 at [12].
102 AWU submission, 9 October 2019, at para 34.
103 Ai Group submission, 23 October 2019 at [14].
104 AWU submission, 9 October 2019, at para 35.
105 AWU submission, 9 October 2019, at para 37.
106 AWU submission, 9 October 2019, at para 39.
107 Transcript, 11 October 2019, at PN287 – PN289.
108 AWU submission, 9 October 2019, at para 40.
109 AMWU submission, 30 September 2019, at paras 14-19. Reference has been made to 24% loading, not 25% loading.
110 Ai Group submission, 20 September 2019, at paras 103 and 106.
111 AWU submission, 9 October 2019, at para 41.
112 Transcript, 11 October 2019, at PN292 – PN299.
113 Ai Group submission, 20 September 2019, at para 114.
114 AWU submission, 9 October 2019, at para 42.
115 Ai Group submission, 23 October 2019 at [15].
116 In the last published Exposure Draft B.1.2 was incorrectly identified as B.1.1(a).
117 Ai Group submission, 20 September 2019, at paras 121-122.
118 Administrative changes will be made to correct the rounding of the junior weekly rates contained in Schedule B to the Gardening and Landscaping Services Award 2010 (including a change to the preamble). One administrative change will be made to correct an error in the Racing Industry Ground Maintenance Award 2010 to clarify that the ‘morning work’ hourly rate does not apply to the ‘Tradesperson’ classification. Administrative changes will be made to correct rounding of rates in Schedule A of the Fire Fighting Industry Award 2010.
119 Administrative changes will be made to correct rounding of rates contained in Schedule B of the Oil Refining and Manufacturing Award 2010 and Schedule B of the Surveying Award 2010.
120 The outstanding issues in the Pharmacy Industry Award 2010 are being dealt with separately as part of the Plain Language Project. See also [152].