[2020] FWCFB 1602

The attached document replaces the document previously issued with the above code on 27 March 2020.

Insert Title to read: ‘4 Yearly Review of Modern Awards: Gas Industry Award 2010’

Associate to Deputy President Sams

Dated 14 May 2020

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

4 Yearly Review of Modern Awards: Gas Industry Award 2010
(AM2018/10)

Four yearly review of modern awards – Gas Industry Award 2010 – substantive issues – meal break – Award to be varied.

[1] In a decision issued by this Full Bench on 12 July 2019 ([2019] FWCFB 4559) we considered the submissions of parties on the preliminary views of the Full Bench in a decision of 12 September 2018 ([2018] FWCFB 5602) as to outstanding issues in relation to this award, most notably in respect to meal breaks and the additional payments applicable thereto.

[2] In our consideration at that time we said at paragraphs [28] to [30]:

‘[28] The task given to this Full Bench was to give further consideration to the matter covered in paragraphs [45] – [61] of the September 2018 Decision. That is, we are to give consideration to the review of clause 22 of the Gas Industry Award 2010. In doing so, we see no need to demur from the Full Bench view as to the objective of the current Award term. For the reasons we have given above, we accept that the purpose of the current Award term is to provide a disincentive for employers to delay or interrupt an employee’s meal break. If it is not this, then it surely is a payment to the employee for the loss of an entitlement (a meal break of 30 minutes). Further, we are satisfied that in reaching this view the Full Bench had regard to the views expressed by Ai Group as to the operation of the clause.

[29] Clause 22 of the Gas Industry Award 2010 reads as follows:

22. Meal breaks

22.1 A meal break of at least 30 minutes must be allowed to employees within five hours of the start of their shift.

22.2 Employees required to work for more than five hours without a suitable interval for a meal as provided for in clause 22.1 must, for all time worked in excess of the five hours before being allowed such interval, be paid at double time.

22.3 Employees required to continue or resume work during the meal break, must for the time of continuance or resumption until the full meal break is given, be paid at time and a half.”

[30] The matter for us to consider is how we should treat the requirement to pay at “double time” and “time and a half”.”

[3] In dealing with the last substantive issue, as it originally appeared in the Exposure Draft, we said at [33]:

‘The current Gas Industry Award 2010 contains a variety of penalties and loadings payable to employees. It establishes the rate of pay to be paid to employees for working ordinary hours of work which, of itself, contains a number of penalties:

•  Day work on Monday to Friday attracts a payment of 100% of the ordinary rate of pay.

•  Afternoon shift worked Monday to Friday is paid at 115% of the ordinary hourly rate.

•  Night shift worked on Monday to Friday is paid at the rate of 130% of the ordinary hourly rate.

•  Saturday ordinary hours are paid at the rate of time and a half.

•  Sunday ordinary hours are paid at double time.

•  Public Holidays ordinary hours are paid at double time and a half.’

and at [41]-[44]:

‘[41] The existing clause in the Gas Industry Award 2010 provides that an additional payment of 100% or 50% is to be made for working through, or an interrupted meal break. For the reasons given above, we accept that there should be a penalty in addition to whatever rate is being paid for ordinary hours, such that the disincentive or compensation for loss of the meal break, remains.

[42] It is our view that the matter is resolved by recognising that a penalty of 100% of the minimum hourly rate for the employee’s classification as set out in clause 10.1 (of the Exposure Draft) is payable if an employee is required to work through their meal break until such time as the meal break is given and that a penalty of 50% of the minimum hourly rate for the employee’s classification as set out in clause 10.1 (of the Exposure Draft) is payable when an employee is required to continue or resume work until the full meal break is given. We are satisfied that this decision gives effect to the clause in the Gas Industry Award 2010 which, in effect, provides for a penalty payment of 100% or 50% of the ordinary rate of pay where a meal break is not given, or is interrupted.

[43] Such penalties should be in addition to (and not in substitution of) the penalties payable for ordinary hours worked at the particular time.

[44] Such a construction of the clause stops the excessive accumulation of penalties which is of concern to the Ai Group, but continues to recognise the importance of a meal break and impose a penalty should the break not be given, or be interrupted.”

[4] In the result, we proposed the following draft clause to give effect to our decision:

‘9.1 Meal breaks

(a) A meal break of at least 30 minutes must be allowed to employees within five hours of the start of their shift.

(b) Employees required to work for more than five hours without a meal break as provided for in clause 9.1(a) must, for all time worked in excess of the five hours before being allowed a meal break, be paid:

(i) the hourly rate applying to the employee immediately before the meal break provided for in clause 9.1(a); and

(ii) 100% of the minimum hourly rate in clause 10.1 for their classification.

(c) Employees required to continue work during their meal break provided for in 9.1(a) must, for all time worked from the beginning of the scheduled meal break until the full meal break is given, be paid:

(i) the hourly rate applying to the employee immediately before the meal break provided for in clause 9.1(a); and

(ii) 50% of the minimum hourly rate in clause 10.1 for their classification.

(d) Employees required to resume work during their meal break provided for in 9.1(a) must, for all time worked from resuming work until the full meal break is given, be paid:

(i) the hourly rate applying to the employee immediately before the meal break provided for in clause 9.1(a); and

(ii) 50% of the minimum hourly rate in clause 10.1 for their classification.’

[5] The views of the parties as to the draft clause were sought and a timetable issued for them to do so. No submissions were received. We are satisfied the draft clause meets the modern awards objective and the Award should be varied accordingly.

[6] We determine that the Gas Industry Award 2010 should be varied in terms of the proposed draft clause at [4] above. The variation will operate from 1 May 2020. We refer our decision to the Finalisation Full Bench dealing with the Tranche 2 Awards.

DEPUTY PRESIDENT

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