[2020] FWCFB 1541
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
DEPUTY PRESIDENT CLANCY
COMMISSIONER BISSETT

      MELBOURNE, 23 MARCH 2020

4 yearly review of modern awards – finalisation of Exposure Drafts and variation determinations – Tranche 2.

1. Background

[1] This Full Bench has been constituted to oversee the process for finalising the exposure drafts produced during the Review and the consequent variation of each modern award. For that purpose, we had divided modern awards into 3 Tranches. The awards in each tranche were set out at Attachment B to a decision issued on 2 September 2019. 1 This decision deals with the Tranche 2 awards.

[2] The 39 2 awards in Tranche 2 are:

•  Aboriginal Community Controlled Health Services Award

•  Airline Operations—Ground Staff Award

•  Air Pilots Award

•  Airport Employees Award

•  Alpine Resorts Award

•  Architects Award

•  Asphalt Industry Award

•  Cleaning Services Award

•  Clerks—Private Sector Award

•  Commercial Sales Award

•  Concrete Products Award

•  Contract Call Centres Award

•  Dry Cleaning and Laundry Industry Award

•  Educational Services (Post-Secondary Education) Award

•  Gas Industry Award

•  Higher Education Industry—Academic Staff—Award

•  Higher Education Industry—General Staff—Award

•  Hospitality Industry (General) Award

•  Hydrocarbons Field Geologists Award

•  Labour Market Assistance Industry Award

•  Local Government Industry Award

•  Mannequins and Models Award

•  Manufacturing and Associated Industries and Occupations Award

•  Maritime Offshore Oil and Gas Award

•  Meat Industry Award

•  Pastoral Award

•  Passenger Vehicle Transportation Award

•  Poultry Processing Award

•  Professional Diving Industry (Industrial) Award

•  Professional Diving Industry (Recreational) Award

•  Rail Industry Award

•  Restaurant Industry Award

•  Road Transport (Long Distance Operations) Award

•  Road Transport and Distribution Award

•  Stevedoring Industry Award

•  Storage Services and Wholesale Award

•  Transport (Cash in Transit) Award

•  Vehicle Repair, Services and Retail Award

•  Waste Management Award.

[3] On 14 October 2019 Exposure Drafts were published for each of the Tranche 2 awards with amendments made in tracked changes 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 a decision issued on 14 October 2019 3 we expressed the provisional view that the variation of the modern awards in Tranche 2 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.

[5] Hearings were held on 17 and 18 December 2019. The transcript of the hearings is available on the Commission’s website. 4

[6] In a further decision issued on 24 December 2019 5 (the December 2019 Decision) we confirmed our provisional view that the variation of the Tranche 2 awards in accordance with the draft variation determinations was necessary to achieve the modern awards objective and that the following amendments would be made to the Tranche 2 awards:

•  The removal of any contested overtime for casuals’ rates from the rates of pay Schedules.

•  Casual conversion clauses in the 28 awards that had such clauses prior to the Casual and Part-time Decision will not be redrafted during the review and the Exposure Drafts will be amended to re-insert the current award term.

•  The deletion of the ‘note’ in the Schedules of Rates.

•  The year in the title of the award will be amended to 2020.

•  In awards where the coverage clause refers to other modern awards, the year in the title of those awards will be amended to either 2010 or 2020 as appropriate.

•  References to the summary of hourly rates of pay and the summary of monetary allowances schedules have been converted from an information box to a Note wherever appropriate. The reference to ‘penalties’ in this note will be corrected to ‘penalty rates’.

•  The reference to the Miscellaneous Award 20XX will be amended to Miscellaneous Award 2010 and has been hyperlinked to the Miscellaneous Award 2010 on the website. This will be varied to the Miscellaneous Award 2020 when the review of the Miscellaneous Award is finalised.

•  Some formatting changes will be made to the summary of hourly rates of pay schedules to facilitate subsequent variation determinations following an Annual Wage Review. The content of these schedules will not be changed. 6

[7] Each of the amendments outlined above have been reflected in the final variation determinations.

[8] The December 2019 Decision also confirmed an operative date of 13 April 2020 for the uncontested awards 7 and 4 May 2020 for contested awards.8

[9] On 14 February 2020 we issued a decision 9 (the February 2020 Decision) dealing with a number of additional amendments made to the variation determinations for Tranche 2 following the publication of the December 2019 Decision. These additional amendments fell into four categories:

•  changes arising from other Full Bench decisions;

•  the correction of minor errors;

•  terminology of rates issues; and

•  award specific issues.

[10] Final variation determinations were issued on 14 February 2020 for 31 of the 39 Tranche 2 awards. Interested parties had until 4pm Friday 28 February 2020 to file an objection to any of the amendments outlined in the February 2020 Decision.

[11] Submissions were received in relation to 5 of these 31 modern awards, as set out below.

[12] Ai Group filed a submission on 28 February 2020 and submitted that the amendment to clause 11.4(a)(i) identified at paragraph [33] of the February 2020 Decision had not properly been made and that the words ‘in clause 15’ should be deleted as clause 15 does not prescribe the ordinary hourly rate.

[13] We agree with Ai Group and will amend the variation determination accordingly.

[14] Ai Group filed a submission on 28 February 2020 and submitted that the amendment to clause A.3.2: Summary of hourly rates – junior employees identified at footnote at 23 of the February Decision has not been made to the heading of A.3.2. Footnote 23 said that the following amendment would be made:

‘At A.3.1 and A.3.2 the table headings have been amended from ‘Junior employees’ to ‘Full-time and part-time employees’.’

[15] We agree with Ai Group and will amend the variation determination accordingly.

[16] Ai Group noted that the proposed amendment to clause 4.4, Coverage, to replace the cross reference to clause 4.1 with clause 4.2, had not been made but submitted that it did not necessarily require rectification as the error did not alter the meaning of the provision.

[17] We will correct the cross referencing error.

[18] Ai Group filed a submission on 28 February 2020 and submitted that clause 26 – Breaks be amended.

[19] Clause 26 – Breaks states as follows:

‘26. Breaks

26.1 Meal and rest breaks

(a) Clause 26.1 will not apply to a person principally employed to perform vehicle sales related duties, or to employees on continuous shiftwork.

(b) Unpaid meal breaks will be not less than 30 minutes and not more than 60 minutes.

(c) Subject to the exceptions below, in clause 26.1(d), an employee will not be required to work for more than 5 hours without a meal break.

(d) The employer and the majority of employees in an establishment may agree that all employees in the establishment can be required to work up to 6 hours without a meal break.

(e) In addition to a meal break, an employer may provide to an employee either a morning or afternoon tea break not exceeding 15 minutes. Where a break is unpaid it must not exceed 15 minutes duration. Where both a morning and an afternoon tea break are provided on the same day or shift, at least one of these breaks must be paid.

(f) An employer may in appropriate circumstances reasonably require an employee to change the timing of a scheduled meal break or rest break to meet operational requirements.

26.2 Working during or without a meal break

(a) Subject to clause 26.2(b), an employee who works:

(i) beyond 5 hours without a meal break (or beyond 6 hours where agreed in accordance with clause 26.1(d)); or

(ii) during a meal break,

will be paid at 150% of the minimum hourly rate for the time worked until a meal break is allowed.

(b) Where an employer directs an employee to perform regular maintenance for the purposes of making good breakdowns of plant or upon routine maintenance of plant which can only be done while such plant is idle, the employee will be paid at the minimum hourly rate for any such work performed during a meal break.

26.3 Overtime crib breaks

(a) An employee required to work overtime for more than one and a half hours after working ordinary hours will be allowed a crib break of 20 minutes before starting such overtime. The crib break will be paid at the minimum hourly rate.

(b) An employee required to work overtime will be allowed a crib break of 20 minutes without deduction of pay after each 4 hours of overtime worked provided work continues after the crib break.

(c) Where a day worker is required to work overtime on a Saturday, the first prescribed crib break if occurring between 10.00 am and 1.00 pm will be paid at the minimum hourly rate.

(d) An employer and employee may agree to any variation of clause 26.3 to meet the circumstances of the work in hand, provided that the employer will not be required to make any payment in respect of any time allowed in excess of 20 minutes.

(e) Clause 26.3 will not apply to an employee working overtime on a Sunday or public holiday unless the employee is rostered to work any of their ordinary hours on that day.

26.4 Minimum break between shifts

(a) When overtime work, including work on a rostered day off or work on a Sunday or a public holiday is necessary, it will wherever reasonably practicable be arranged so that an employee works not more than 14 hours in any period of 24 consecutive hours and so that each employee may have at least 10 consecutive hours off duty in each such 24 consecutive hours.

(b) Subject to the exceptions referred to in clauses 24.8 and 24.9, on the completion of a period of work an employee is required to have a period of 10 consecutive hours off duty from their ordinary working time without loss of pay until recommencing work.

(c) If on the direction of the employer such an employee resumes or continues work without having had 10 consecutive hours off duty, the employee must be paid at 200% of the minimum hourly rate until released from duty. The employee will then be entitled to be absent for 10 consecutive hours off duty without loss of pay for any ordinary working time occurring during such absence.’

[20] Ai Group’s submission seeks to raise a substantive problem with the wording of the Draft Determination that has only recently come to its attention. Ai Group contends that the combined effect of certain drafting changes implemented through the exposure draft process had, arguably had a substantive effect:

‘…the application of various obligations now contained in clause 26 of the Vehicles Award 2020 (which deals with various matters related to meal breaks and breaks between shifts) have been extended so as to now apply in the context of ‘console operators’ and fuel retailing establishments in a manner that appears to be unintended by both the parties and Commission. If such an interpretation was accepted it would constitute a problematic substantive change to employer obligations.

In short, this outcome appears to be a product of the following variations:

•  The restructuring of clauses 26.1 – 26.8 of the Vehicle Award as clause 26.1(a)-(f) and clause 26.2(a)-(b) in the Vehicles Award 2020;

•  The relocation of clause 28.6 – Rest Period before Commencing Work of the Vehicle Award (to which an appropriate exclusion for fuel retailing establishments applies) to clause 26.4 of the Vehicles Award 2020 which contains no exclusion for fuel retailing establishments;

•  The removal of the exemption for ‘console operators’ from the application of clause 26.

Ai Group is concerned that the above variations may have cause the following problems:

•  Application of clause 26.2 – Working during or without a meal break to console operators;

•  Application of clause 26.4 – Minimum breaks between shifts to casual employees and persons employed as driveway attendants, roadhouse attendants and console operators working in fuel retailing establishments; and

•  Application of clauses 26.1, 26.2 and 26.4 to console operators whose hours are organised by an employer under clause 27.1(a)(ii).’ 10

[21] Ai Group is concerned that an inadvertent impact of these changes may leave open the following problematic interpretations:

•  Clauses 26.2 and 26.4 of the Vehicles Award apply to console operators once the new Award is operational; and

•  Clauses 26.1, 26.2 and 26.4 of the Vehicles Award will apply to console operators even when an employer chooses to organise their hours pursuant to clause 27.1(a)(ii).

[22] Ai Group submits that such interpretations would not be consistent with either the intent of the Commission in applying structural changes to the Award in the first exposure draft released in October 2014 or the intent of the parties in subsequently seeking the removal of the exclusion applicable to console operators in the general breaks provision in the Vehicles Award. In this context Ai Group refers to submissions filed on 25 May 2014 by the Shop, Distributive and Allied Employees Association (SDA) proposing a variation to the ‘Special Provisions’ applicable to console operators which would apply further restrictions on the discretion afforded to employers in relation to meal breaks. 11

[23] The draft provided by the SDA sought to vary proposed clause 37.1 of the 2 April 2015 Exposure Draft (equivalent to clause 27.1 of the Vehicles Award 2020) by applying the parameters governing meal breaks in proposed clause 11.1 of the 2 April 2015 exposure draft (equivalent of clause 26.1 of the Vehicles Award 2020). Clause 11.1 did not provide for the application of penalty rates where an employee works through a meal break or for minimum breaks between shifts.

[24] In order to put the matter beyond doubt and in the interests of clarity, Ai Group submits that the following variation is appropriate:

‘26. Breaks

26.1 Meal and rest breaks

(a) Except where otherwise provided in this Award, clause 26 Clause 26.1 will not apply to a person principally employed to perform vehicle sales related duties, console operators or to employees on continuous shiftwork.’

[25] Further, to avoid the inadvertent application of clause 26.4 – Minimum breaks between shifts to casual employees and to persons employed as driveway attendants, roadhouse attendants and console operators working in fuel retailing establishments, Ai Group proposes that this provision be relocated to clause 24.12 – Overtime so that the relevant exclusions contained in clause 24.1 will apply.

[26] The Motor Trades Organisations (MTO) filed a submission on 28 February 2020 directed substantially the same issue as that raised by Ai Group.

[27] The issue raised by Ai Group and the MTO is significant and we propose to convene a conference of interested parties to seek an appropriate resolution. The conference will also discuss whether it is necessary to delay the variation determinations for the Manufacturing award until the issue in the Vehicle award is resolved. A listing notice will be published shortly.

[28] The Group of Eight Universities filed a submission on 17 March 2020 noting that the Draft Determination does not presently reflect the agreed position in respect of overtime for casuals (as reflected in their 4 December 2019 and 28 October 2010 correspondence). The Group of Eight Universities understand that this is because the Overtime for Casuals Full Bench (AM 2017/51) is still to formally issue its decision/determinations, but for completeness considered it prudent to note these matters in respect of the Draft Determination given that it is intended to take effect on 4 May 2020.

[29] We acknowledge the point raised by the Group of Eight Universities and consistent with the approach taken in respect of other modern awards will amend our variation determination once the Overtime for Casuals Full Bench has finalised its deliberations.

The Remaining Tranche 2 Awards

[30] In relation to the remaining eight Tranche 2 modern awards revised draft variation, determinations for seven of these eight Tranche 2 modern awards were published on 19 February 2020. 12 These 7 awards are:

•  Clerks—Private Sector Award 2010

•  Contract Call Centres Award 2010

•  Hospitality Industry (General) Award 2010

•  Local Government Industry Award 2010

•  Manufacturing and Associated Industries and Occupations Award 2010

•  Rail Industry Award 2010

•  Restaurant Industry Award 2010.

[31] Interested parties were given until 4pm on Wednesday 4 March 2020 to comment on the revised draft in respect of each of the above 7 awards.

[32] The following submissions were received:

•  Ai Group (2 March 2020);

•  United Workers’ Union (UWU) (28 February 2020 and 13 March 2020);

•  Australian Hotels Association (AHA) (28 February 2020);

•  Western Australian Local Government Association (WALGA) (4 March 2020);

•  Australian Manufacturing Workers’ Union (AMWU) (4 March 2020); and

•  Rail, Tram and Bus Union Australia (RTBU) (4 March 2020).

[33] A different process applied in respect of the eighth of these Tranche 2 awards, the Pastoral Industry Award 2010. On 29 January 2020 another Full Bench issued a decision 13 resolving an ambiguity in relation to when an employee working overtime is entitled to a second meal break. To avoid any confusion we decided to wait until that variation determination had been made before publishing a revised draft variation determination in respect of this award. On 18 February 2020 we published a statement14 setting out the process for commenting on that revised draft variation determination.

[34] No submissions were received in relation to the revised draft determination for the Pastoral Industry Award and a decision 15 has been issued finalising that matter.

[35] We now turn to deal with each of the seven remaining Tranche 2 awards referred to above at [30].

[36] Ai Group filed a submission on 2 March 2020 and submits that:

‘clause 18.1(a) should provide for an annualised wage arrangement to encompass penalties applicable when an employee is required to work through a meal break (clause 15.4). These are appropriately considered to be ‘Overtime penalty rates’, as referred to in clause X.1(a)(iii).’

[37] On 23 December 2019, the Annualised Wage Arrangements Full Bench issued a decision 16 and draft determinations in relation to a number of awards, including the Clerks award.17 Interested parties had until 31 January 2020 to comment on the draft determinations. Ai Group made a submission on 31 January 202018 which also sought the inclusion of the penalty when an employee is required to work through a meal break.19 The Annualised Wage Arrangements Full Bench did not alter the final variation determination to include the meal break provision.20

[38] As noted above, some of these issues were raised by Ai Group in their submission to the Annualised Wage Arrangements Full Bench, but the changes sought by Ai Group were not included in the final variation determination issued by that Full Bench. In these circumstances absent consent by all relevant parties we do not propose to make any amendments to the Annualised Wage Arrangement provisions in the variation determination. A conference of the parties will be convened to discuss this issue and any other outstanding matters in respect to the variation determination of this award shortly. A listing notice will be published separately.

[39] No submissions have been received in relation to the revised draft variation determination published on 19 February 2020. We will now publish a final variation determination. It will come into effect on 4 May 2020.

[40] It is convenient to deal with these two awards together.

[41] A Full Bench was constituted to deal with substantive issues in these two awards (AM2017/59) and a decision was issued by that Full Bench on 13 December 2019. 21 Award variation determinations were published on 23 January 202022 (the 23 January determinations).

[42] On 14 February 2020 we issued a statement 23 dealing with the finalisation of the exposure draft and variation of the Restaurant Industry Award (the Restaurant Award) and the Hospitality Industry (General) Award (the Hospitality Award). The Restaurant Award and the Hospitality Award were included in Tranche 2 for the purposes of the finalisation of exposure drafts process.24

[43] The 23 January determinations affect several provisions in the variation determinations to be issued by this Full Bench. A significant number of drafting changes are required to ensure that the 23 January determinations are incorporated into the final variation determinations for the Restaurant and Hospitality Awards.

[44] Tracked versions of the draft variation determinations were published with the statement of 14 February 2020. Interested parties were given until 4pm on Friday 28 February 2020 to comment.

[45] The UWU filed a submission in relation to the Hospitality Award on 28 February 2020 and submitted that:

‘Clause 28.4 - Overtime rate

This clause provides for over time to junior employees and apprentices and their ordinary rate is described elsewhere as the ‘junior rate’ or ‘apprenticeship rate’ rather than as an ordinary rate of pay. Junior employees are employees who are classified within the general classifications of the Award but paid a lower rate by virtue of their age. Apprentices are arguably a classification. Note 2 does allude to this state of affairs but an amendment to the note may be useful:

NOTE 2: Schedule B –Summary of Hourly Rates of Pay sets out the hourly overtime rate for all employee classifications including junior employees and apprentices according to when overtime is worked.

Clause 29.2 Penalty rates

Similarly, the note here could be amended to remind the reader of the clause’s application to junior employees and apprentices.’

[46] It is our provisional view that the amendment proposed by the UWU be adopted.

[47] The AHA filed a submission on 28 February 2020 and proposed the following suggested amendments to the variation determination:

•  Clause 15.1(b): insert the word ‘ways’ after the words ‘in one of the following:’

•  Clause 23.5: insert the words ‘or accrued day off’ at the end of the clause; and

•  Clause 26.5: insert the words ‘or apprentice cook’ after the word ‘cook.’

• 

[48] We agree with the AHA and will amend the variation determination accordingly. We will now publish a final variation determination. It will come into effect on 4 May 2020.

[49] The UWU filed a submission on 28 February 2020 in relation to the Restaurant Award and submitted that similar amendments to the notes at clause 23.4, dealing with overtime, and clause 24, dealing with penalty rates, clarifying that these clauses apply to junior employees and apprentices may also be useful.

[50] It is our provisional view that the amendment proposed by the UWU be adopted.

[51] On 13 March 2020 the UWU filed an additional submission stating that:

‘This additional comment concerns the exposure draft’s treatment of an entitlement to a break within a long duration of work at clause 16.2.

On 1 January 2018, an entitlement to intra-day and intra-week overtime was inserted into the Restaurant Award for casual employees. Similar entitlements were also inserted into the Hospitality Award and the Clubs Award. The industrial treatment of the hours of work of casual employees under the Restaurant Award has been altered as casual employees now have ordinary hours. All hours worked which are overtime hours are not ordinary hours. Prior to the creation of an entitlement to overtime for casual employees, all hours worked by a casual employee were notionally ordinary hours.

The current award at clause 32.2 the Restaurant Award uses the terminology ‘ordinary hours’ in its break entitlement. This is a long standing feature of the Award. The exposure draft and plain language version of the Award initially up to 23 October 2019 used the term ‘hours.’

The current exposure draft of the Restaurant Industry Award at clause 16.2 uses the words ‘ordinary hours’ in column 1 of table 2. This wording was proposed by the Australian Hotels Association (‘AHA’) in a submission dated 30 September 2019 on the basis that it would provide clarity in the context of the break entitlement when overtime is worked. A similar amendment was not made to the Hospitality Award exposure draft and this is now the subject of an award variation by the AHA (AM2020/5 -application by the AHA to vary the Hospitality Award). On 12 March 2020, Deputy President Masson conducted a directions hearing for the AHA variation application to the Hospitality Award and this is why we are raising this matter now.

In the review of the Restaurant Award, this matter was dealt with at a hearing on 10 October 2019 (see: PN92 to PN111). The words ‘ordinary hours’ are proposed by the AHA to be reinserted in the draft so as to make the breaks clause clearer. There was concern that there was some disconnect between the general entitlement to a break for hours worked at what is now clause 16.2 and the specific entitlement for a break after the commencement of overtime (clause 16.8).

On 23 October 2019, the Commission adopts the proposal and the exposure draft is altered (see: [2019] FWCFB 7035 at [4] to [20]) . From our reading of the decision of 23 October 2019, the substitution of ‘ordinary hours’ for ‘hour’ as the measure of hours that must be worked before an employee is entitled to a break is not directly addressed (but see [19] and [20]). Having now reviewed the general consequence of using ‘ordinary hours’ as the measure in the context of AM2020/5 the altered wording has significant substantive effects which does not appear to have been considered when the wording was adopted for the Restaurant Award.

The initially proposed use of ‘hours’ is far more consistent with the modern awards objective as all employees covered by this award now have ordinary hours. Previously it could be said all hours worked by a casual employee were ordinary hours. Permanent employees have fairly rigid provisions concerning rostering and overtime which would provide them with some protection.

The problem with the use of the term ‘ordinary hours’ in the breaks clause in the Restaurant Award is that long shifts of overtime or comprising overtime can and will be worked. Once a casual employee (or a permanent employee) has worked more than 38 ordinary hours in a week (or an average of 38 hours within a 4 week roster) and exhausted their ordinary hours, the employee will being working shifts which are entirely composed of overtime hours. On the face of it, current clause 16.2 would not entitle an employee to a break when a shift comprised overtime hours or where less than 5 ordinary hours are worked and subsequent overtime is worked. The problem will most likely affect casual employees as a casual will more likely have to work unexpected shifts to cover peaks in demand.

The entitlement of an employee to a break should arise because the employee works a long continuous durations of work and not because of the industrial designation of the hours worked. With intra week overtime, an employee is more deserving of a break after a 5 hours overtime shift than an earlier similar shift of ordinary hours. A strict reading of the current exposure draft says that an employee is not entitled to no break for the later overtime shift.

This consequence does not appear to have been identified or intentional. When the word ‘ordinary’ was inserted into the exposure draft by the Commission in its decision on 23 October 2019 it seems to have been in aid of clarity and the fact that the current award uses similar language makes the use of the term understandable. As the designation of hours in this award has become more sophisticated, the initial use of the more neutral term ‘hours’ is now more appropriate.

In relation to the Award’s entitlement to an additional rest break after overtime has commenced which is at clause 16.8 of the exposure draft, any conflicts with the general break entitlement at clause 16.2 can likely be resolved by the insertion of the word ‘Provided that the employee is not entitled to a break under clause 16.2 …’ An alternative solution may be to substitute ‘ordinary hours’ for ‘rostered hours’ in clause 16.8.’

[52] The issue raised by UWU will be the subject of conference. A listing notice will be published in due course.

[53] WALGA made a submission on 4 March 2020.

•  Clause 5.13 is missing a full stop at the end of the clause;

•  Clause 19.1: the reference to clause 18 is incorrect and should be replaced by clause 19; and

•  Schedule B.1.3: the footnote reference to ‘clause 22.1’ should be to ‘clause 22.3’.

[54] WALGA also advances a submission in relation to Schedule B.2.1 regarding casual rates of pay.

[55] The WALGA notes that at paragraph [237] of the 24 December 2019 Decision 25 we adopted the position, consistent with that taken in all other awards, that the schedules will not be varied to deal with overtime for casuals until the Full Bench constituted to decide on matters relating to overtime for casuals (AM2017/51) (Casuals Full Bench) has issued a decision on the matter.

[56] The WALGA submits that clauses 11.2 and 11.3 of the Draft Determination provide that casual loading is not payable with respect to public holidays and overtime. This is supported by the Local Government Associations submission dated 28 June 2019, which is supported by the submission of the Australian Services Union (ASU) dated 2 July 2019.

[57] The heading of the final column of the table in Schedule B.2.1 is ‘public holiday’ and directly below it is a rate of ‘275%’; which is contrary to the Local Government Associations and the ASU’s interpretation of how public holiday penalty rates are to be calculated for casual employees.

[58] The WALGA submits that the entire column in subclause B.2.1 with the heading ‘public holiday’ be deleted until the Casuals Full Bench issues a decision regarding the calculation of public holiday penalty rates for casual employees under the Local Government Industry Award.

[59] We agree with the WALGA and will delete the entire column in sub clause B.2.1 with the heading ‘Public Holiday’ until this matter is finalised by the Casuals Full Bench.

[60] The final issue raised by the WALGA concerns Schedule I, regarding part-day public holidays.

[61] In Appendix B of the Part-day Public Holidays Decision 26 the Commission indicated that the Local Government Industry Award would be amended to include version 2 of the terms of the Part-day Public Holidays clause.

[62] The WALGA submits that the variation determination is missing subclause X.2 ‘An employer and employee may agree to substitute another part-day for a part-day that would otherwise be a part-day public holiday under the NES’ and that this wording should be included as subclause I.3 of Schedule I and the current subclause I.3 be renumbered I.4.

[63] We agree with the WALGA and will amend the variation determination accordingly.

[64] Ai Group filed a further submission on 2 March 2020 raising a number of issues. The first concerns the new Annualised Wage Arrangement clauses.

[65] Ai Group submits that clause 28.2(a) in the Draft Determination does not reflect the full range of provisions that could be encompassed within an annualised wage arrangement under clause 24.1(g) of the pre-1 March 2020 provision.

[66] In addition, Ai Group submits that in the negotiations with the AMWU regarding the incorporation of the vehicle manufacturing provisions from the Vehicle Award into the Manufacturing Award, it was agreed that the annualised salary clause would apply to supervisors, trainers and coordinators in the Vehicle Manufacturing sector covered by clause 4.8(a)(xi).

[67] To address the above matters, Ai Group submits that the following provisions need to be added to clause 28.2(a):

•  Clause 17.2(e) – Penalty rate for ordinary hours worked outside spread of hours – day workers;

•  Clause 17.2(f) – Weekend penalty rates for ordinary hours – day workers;

•  Clause 17.2(g) – Public holiday penalty rates for ordinary hours – day workers;

•  Clause 18.5(b) – Penalty rate for work done during meal breaks;

•  Clause 19.4 – Ship trial penalty rates;

•  Clause 26 – Extra rates not cumulative;

•  Clause 33.1 – Penalty rates for day workers;

•  Clause 40.5(a) – Compensation where a rostered day off falls on a public holiday;

•  Clause 53 – Allowances and related matters – vehicle manufacturing employees;

•  Clause 55 – Shiftwork and rates – vehicle manufacturing employees; and

•  Clause 56 – Overtime – vehicle manufacturing employees.

[68] We note that some of these issues were raised by Ai Group in their submission to the Annualised Wage Arrangements Full Bench\ but that the changes sought by Ai Group were not included in the final variation determination issued by that Full Bench. In these circumstances absent consent by all relevant parties we do not propose to make any amendments to the Annualised Wage Arrangement provisions in the variation determination. A conference of the parties will be convened to discuss this issue and any other outstanding matters in respect to the variation determination of this award shortly. A listing notice will be published separately.

[69] Clause 20 of the exposure draft is at Attachment A.

[70] As to the second question in the green box Ai Group submits that the cross-references in clause 20.1(d)(iv), should be: (iv) an employee covered by clauses 20.1(f), (g), or 28 and or 30.2(f).

[71] We agree with Ai Group and will make the amendment they proposed.

[72] Ai Group notes that the supervisors, trainers and coordinators covered by clause 28 are different supervisors, trainers and coordinators to those covered by clause 30.2(f). Clause 28 applies to Supervisor/Trainer/ Coordinator—Level I and II, whereas clause 30.2(f) applies to Supervisor/ Trainer/Coordinator—Technical, which is a different classification.

[73] It is submitted that this can be seen by the following three classifications in clause A.3.3 of Schedule A:

‘A.3.3 Supervisor/Trainer/Coordinator

Where an employee is performing supervisory responsibilities, the employee is to be classified as a:

(a) Supervisor/Trainer/Coordinator—Level I: 122% of the minimum wage rate paid to the highest technically qualified employee supervised or trained subject to clause 20.1(g)(i).

(b) Supervisor/Trainer/Coordinator—Level II: 115% of the minimum wage rate paid to the highest paid employee supervised or trained subject to clause 20.1(g)(ii).

(c) Supervisor/Trainer/Coordinator—Technical: 107% of the minimum wage rate applicable to the employee’s technical classification.’

[74] The 122% and 115% rates referred to in clause A.3.3(a) and (b) are the following rates in clause 20.1(g).

‘(g) Supervisor/Trainer/Coordinator—Levels I and II

(i) The minimum hourly rate for a Supervisor/Trainer/Coordinator—Level I is 122% of the minimum hourly rate paid to the highest technically qualified employee supervised or trained or 104.3% of the standard rate per hour, whichever is the higher.

(ii) The minimum hourly rate for a Supervisor/Trainer/Coordinator—Level II is 115% of the minimum hourly rate paid to the highest paid employee supervised or trained or 113.1% of the standard rate per hour, whichever is the higher.’

[75] The 107% rate referred to in clause A.3.3(c) is the “allowance” in clause 30.2(f):

‘(f) Supervisor/Trainer/Coordinator—Technical allowance

(i) A Supervisor/Trainer/Coordinator—Technical, who is responsible primarily for the exercise of skills in the technical field up to the level of their skill and competence and who is additionally involved in the supervision/training of other technical employees must be paid not less than 107% of the minimum wage rate applicable to the employee’s technical classification.

(ii) This allowance will be paid for all purposes of this award.’

[76] Ai Group also submits that users of the award are alerted to the above ‘allowance’ by the following provision in clause 20.1(h):

‘A Supervisor/Trainer/Coordinator—Technical is paid an allowance in accordance with clause 30.2(f).’

[77] Ai Group submits that there would be merit in the following minor amendment to reduce the scope for confusion about the minimum wage rates that are payable to supervisors, trainers and coordinators:

‘A Supervisor/Trainer/Coordinator—Technical is paid an allowance in accordance with clause 30.2(f), instead of the rates in clause 20.1(g).’

[78] We agree with Ai Group and will make the changes proposed.

[79] Ai Group notes that the previous annualised salaries clause in the Manufacturing Award only applied to Supervisor/Trainer/Coordinator – Levels I and II. It did not apply to Supervisor/Trainer/Coordinator – Technical. As clause 28 is currently drafted in the Draft Determination, it only applies to Supervisor/Trainer/Coordinator – Levels I and II. Ai Group submits:

‘Therefore, returning to the cross-references in clause 20.1(d)(iv), it makes no sense to refer to clauses “28 and 30.2(f)” because there are no employees covered by both clause 28 and clause 30.2(f), for the reasons explained above. The clause should be amended as follows:

(iv) an employee covered by clauses 20.1(f), (g), or 28 and or 30.2(f).’

[80] As set out at [71]. we agree with Ai Group and will make the amendment they proposed

[81] The final matter raised by Ai Group concerns the National Training Wage Schedule.

[82] Ai Group submits that the following amendment needs to be made to the heading of Table 3 in clause G.4.1(c)(ii) in Schedule G of the Manufacturing Award to correct an error:

‘(ii) The minimum rate for a full-time adult trainee undertaking an AQF Certificate Level IV traineeship is the weekly rate specified in column 2 or 3 of Table 3—Minimum weekly rate for full-time adult trainees (AQF Certificate Level IV traineeship) according to the year of the traineeship specified in those columns and the relevant wage level for the relevant AQF Certificate Level III traineeship specified in column 1:

Table 3—Minimum weekly rate for full-time adult trainees (AQF Certificate Level I–III IV traineeship)’

[83] We agree with Ai Group and will make the amendment proposed.

[84] The AMWU filed a submission on 4 March 2020 in which it raised four issues:

[85] Clause 4.4 of the exposure draft provides:

‘this award covers any employer which supplies labour on an in-hire basis in the manufacturing and associated industries in respect of on-hire employees in classifications covered by this award, and whose on-hire employees, while engaged in the performance of work for a business in those industries.’

[86] This clause was discussed at the hearing on 18 December 2019, as the phrasing in the exposure draft dated 14 October 2019 was as follows:

‘This award covers any employer which supplies labour on an on-hire basis in the manufacturing and associated industries and occupations industry (or industries).’

[87] The AMWU submits that the parties agreed that the clause should be amended by deleting the word “industry (or industries)”. 27 The AMWU submits that the word “occupations” has been incorrectly removed and should be retained in the clause.

[88] It is our provisional view that the coverage clause should be amended in the manner proposed by the AMWU.

[89] The February 2020 Decision, at paragraph [16] identified minor errors in the finalisation of the exposure drafts. The AMWU submits that some of the amendments are incorrect and these are listed below:

•  Clause 20.5(d)(ii) – it is proposed that the word “employer” in the clause be amended to “employee” and this amendment appears in the last published exposure draft. This is not correct, and the word “employer” should be retained;

•  Clause 29.3 – the reference to this clause is incorrect. The amendment is to clause 30.3 in the exposure draft and is not opposed;

•  Clause 52.1(a) - the reference to this clause is incorrect. The amendment is to clause 53.1 in the exposure draft and is not opposed;

•  Clause 54(1(b)(ii) – the reference to the clause is incorrect. The amendment is to clause 55.1(b)(ii) in the exposure draft and is not opposed;

•  Clause 55 – the reference to the clause is incorrect. The amendment is to clause 56 and is not opposed; and

•  C.1.1 – the insertion of the words “other than continuous work shift” is not opposed.

Clause 20.5(d)(ii)

[90] In the exposure draft published on 19 February 2020, the following change was proposed to clause 20.5(d)(ii):

‘(d) Classification of vehicle manufacturing employees covered by clause 4.8(a)(xi).

…

(ii) All adult employees (other than apprentices) must be classified according to the structure set out in Schedule B and according to the skill levels and duties required to be exercised by the employer employee in order to carry out the principal functions of the employment as determined by the employer. The skill level definitions, according to which employees are to be classified, are set out in Schedule B—Vehicle Manufacturing Employees—Skill Level Definitions—Trades, Non-trades, Post-trades, Drivers, Technicians/ Technical Officers and Supervisors/Trainers/Coordinators.’

[91] The AMWU submit that the word ‘employer’ should be retained. The equivalent clause in the current Vehicle Manufacturing, Repair, Services and Retail Award 2010 is clause 33.1 (emphasis added):

‘33.1 All adult employees (other than adult apprentices) covered by this section must be classified according to the structure set out in clause 33.4 according to the skill levels and duties required to be exercised by the employee in order to carry out the principal function of the employment as determined by the employer. The skill level definitions, according to which employees are to be classified, are set out in Schedule B—Vehicle Industry RS&R—Skill Level Definitions.’

[92] Accordingly, we do not propose to make the change proposed by the AMWU.

Clause 29.3, Clause 52.1(a), Clause 54(1(b)(ii), Clause 55 and C.1.1

[93] We agree with the AMWU’s submissions about each of these clauses. No amendment to the variation determination is required.

[94] Paragraph [17] of the February Decision, identified changes in the terminology of rates made towards pursuant to the plain language Full Bench on award by award basis.

[95] The AMWU does not oppose the change of “minimum wage” to “minimum rates” in the identified clauses. 28 The AMWU proposes that in addition to these clauses, the following amendments be made to the words “minimum wage” where they appear in the following schedules A, E, F and G.

[96] We agree with the AMWU and will make the changes proposed.

[97] The AMWU is not opposed to the inclusion of the clauses which appears as clauses 31.4, 31.5 and 35.2 in the February 2020 Decision.

[98] The AMWU submits that the clause references in the Wage related allowances table at D.1.2 are incorrect and that all the references to clause 29 should read clause 30 and with the subsequent alphabetical numbering.

[99] We agree with the AMWU and will make the changes proposed.

•  Rail Industry Award 2010

[100] The RTBU refers to AM2017/51 – Overtime for Casuals in relation to the Rail Industry Award and submits that the Decision issued on 8 October 2019 resolved the RTBU outstanding issues to overtime for casuals 29 and the RTBU submits that:

‘This amendment to clause 23.5(c) has not been reflected in the now clause 20.1(c) of the Exposure Draft of 19 February 2020. There is no opposition to this proposed change. The RTBU seeks for this to be varied in the Rail Award.’

[101] We would observe that the position is not as clear as the RTBU submits. In its decision of 8 October 2019 30 the Casuals Full Bench dealt with an amendment to the Rail Award proposed by the RTBU as follows:

‘[71] We consider that a variation to the Rail Award to clarify and render unambiguous the meaning and operation of clause 23.5(c) would be consistent with achieving the modern awards objective in s 134(1), having regard in particular to s 134(1)(g). We are not satisfied that the amendment proposed by the RTBU makes the position as clear as it might be. In particular the cross-reference simply to clause 20 is less than pellucid. We propose that clause 23.5(c) be amended to read: “For a casual employee, overtime is any time worked in excess of the employee’s weekly ordinary hours (see clause 10.3(b)) or daily ordinary hours (see clauses 20.4-20.6)”. A draft determination to this effect will be published in due course and interested parties will be given an opportunity to comment upon it.’

[102] No draft determinations have yet been published for comment. Consistent with the approach we have taken in relation to other awards we do not propose to amend the variation determination until the Casuals Full Bench has determined the issues before it and finalised variation determinations.

[103] We will now publish a final variation determination. It will come into effect on 4 May 2020.

PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR717717>

 1   [2019] FWCFB 6077

 2   Aircraft Cabin Crew Award 2010 and Live Performance Award 2010 moved to Tranche 3 (pursuant to paragraph [2] of decision [2019] FWCFB 6861). A separate statement will be issued in relation to the Educational Services (Schools) General Staff Award. A conference will be listed in relation to the Pharmaceutical Industry Award.

 3   [2019] FWCFB 6861

 4   Transcript 17 December 2019 and 18 December 2019

 5   [2019] FWCFB 8569

 6   Ibid at [7]

 7   Ibid at [395] – [396]

 8   Ibid at [398] – [402]

 9   [2020] FWCFB 690

10 Ai Group submission, 28 February 2020, paragraphs 9 – 10

 11   AM2014/93, Submission, Shop, Distributive and Allied Employees’ Association, (25 March 2015), [5].

 12   Clerks – Private Sector Award 2010; Contract Call Centres Award 2010; Hospitality Industry (General) Award 2010; Local Government Industry Award 2010; Manufacturing and Associated Industries and Occupations Award 2010; Pastoral Award 2010; Rail Industry Award 2010; Restaurant Industry Award 2010

 13   [2020] FWCFB 384

 14   [2020] FWCFB 801

 15   [2020] FWCFB 1497

 16   [2019] FWCFB 8583

 17   Clerks draft determination, 23 December 2019

 18   Ai Group submission, 31 January 2020

 19   Ibid at [15].

 20   Variation determination, 12 February 2020

 21   [2019] FWCFB 8380

 22   PR716109; PR716106

 23   [2020] FWCFB 788

 24   See [2019] FWCFB 6077

 25   [2019] FWCFB 8569

 26   [2019] FWCFB 8491

 27   Transcript PN 227-231

 28   Footnote 63 at [ 17] of February decision

 29   [2019] FWCFB 6953

 30   [2019] FWCFB 6953 at [71]

 

ATTACHMENT A – Clause 20 of the Manufacturing and Associated Industries and Occupations Award 2010 Exposure Draft

20. Minimum rates

Parties ARE INVITED TO COMMENT ON HOW CHANGES PURSUANT TO PR716600 AFFECT VEHICLE MANUFACTURING EMPLOYEES IN CLAUSE 20

20.1 Adult employee minimum rates

NOTE: See Schedule C – Summary of Hourly Rates for a summary of hourly rates of pay including overtime and penalty rates

An employee who possesses the appropriate level of academic qualifications and who otherwise meets the requirements of the relevant classification definition but who is without prior experience in the Manufacturing and Associated Industries and Occupations or other relevant work experience must be paid in accordance with the following formula:

0 (i)(h) A Supervisor/Trainer/Coordinator—Technical is paid an allowance in accordance with clause 30.2(f).

20.2 Higher duties

20.3 Supported wage system
For employees who because of the effects of a disability are eligible for a supported wage, see Schedule E – Supported Wage System.
20.4 National training wage
For employees undertaking a traineeship, see Schedule G – National Training Wage.
20.5 Classifications

The points to be assigned to the classification levels under this award are as contained in the following table: