[2020] FWCFB 1814

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, 27 APRIL 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, the modern awards were divided into 3 tranches. This decision deals with the outstanding awards in Tranche 2.

[2] The 39 Tranche 2 awards are listed at [1] of our decision issued on 14 February 2020 1 (February 2020 Decision). Final variation determinations were issued for 31 of the 39 Tranche 2 awards on that same date. The remaining 8 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

• Pastoral Award 2010

• Rail Industry Award 2010

• Restaurant Industry Award 2010

[3] Revised draft determinations were issued for 7 of the 8 remaining Tranche 2 Awards on either 14, 19 or 21 February 2020. 2 At [95] of the February 2020 decision we noted that a separate statement about the Pastoral Award will be issued in due course.

[4] In relation to the Clerks Award, we noted in a decision issued on 23 March 2020 3 (the March 2020 decision) (at [38]) that a conference will be convened shortly to discuss the issue raised by Ai Group (AIG) regarding amendments to the Annualised Wage Arrangements provisions4 and any other outstanding matters in respect to the variation determination of this award. This conference is to take place on 30 April 2020. A notice of listing will be issued separately.

[5] In relation to the Restaurant Award, we noted in the March 2020 decision at [52] that a conference will be convened in due course to discuss the issue raised by the United Workers Union (UWU) regarding the entitlement to a break within a long duration of work. 5 This conference is to take place on 30 April 2020. A notice of listing will be issued separately.

2. Remaining Tranche 2 awards

[6] This decision deals with the finalisation of the variation determinations for the awards set out below.

2.1 Contract Call Centres Award 2010

[7] As noted in the March 2020 decision, (at [39]) no submissions were received in relation to the revised draft variation determination published on 19 February 2020 and a final variation determination would be published to come into effect on 4 May 2020.

[8] The title of the award at the beginning and in the headers of the document has been changed to “Contract Call Centres Award 2020”.

[9] Minor errors in the revised draft determination have been corrected as follows:

• The reference in clause 18.1 to “clause 17” has been changed to refer to “clause 18”.

• The typographical error in clause 20.1(a) has been corrected to add the word “for” before “all work done…”.

[10] We confirm that a final variation determination will be published along with this decision and will commence operation on 29 May 2020.

2.2 Hospitality Industry (General) Award 2010

[11] The Hospitality Award draft determination was re-published on 14 February 2020 along with an award-specific Statement 6 setting out the process for finalisation of the award. The re-published draft determination incorporated the variation determination7 issued on 23 January 2020 dealing with substantive issues raised in the Award.

[12] In the February 2020 statement, at [4], we invited interested parties to comment. Submissions were received from the Australian Hotels Association 8 (AHA) and the United Workers’ Union9 (UWU) on 28 February 2020.

[13] In the March 2020 decision at [48], we agreed with the amendments sought by the AHA in relation to clauses 15.1(b), 23.5 and 26.5(a). We now confirm that the amendments will be incorporated into the final determination.

[14] As a result of incorporating the substantive amendments and the new schedule into the final determination, the title of clause 15.6 has been changed to more appropriately reflect the content of the clause. The title of clause 15.6 has been amended as follows:

“Alteration of rosters and Nnotice of days off ~~(including rostered days off)~~”

[15] As a result of the amendment made to clause 26.5(a), which was to include “or apprentice cook” after “cook”, clause C.2.1, second and third rows, will also be amended to include “or apprentice cook” after “cook”.

[16] Minor errors in the revised draft determination have been corrected as follows:

• The typographical error in clause 15.6(b) has been corrected by changing “accrued day off or accrued days off” to “accrued day or days off”.

• The typographical error in clause 19.2(b), table 10 heading, has been corrected by changing “appentices” to “apprentices”.

• The typographical error in clause C.1.1, first row of table, has been corrected by changing “fork-ift” to “fork-lift”.

• The typographical errors in clause C.2.1 first row of table, have been corrected by changing “2hours” to “2 hours” and “per occassion” to “per occasion”.

• The typographical error in clause C.4, Note 1, has been corrected by changing “accomdation” to “accommodation”.

[17] On 25 March 2020 a decision was issued 10 varying the Hospitality Award to include a new schedule relating to award flexibility during the COVID-19 Pandemic11. The Schedule has been incorporated into the final determination.

[18] A revised draft variation determination will be published along with this decision incorporating the above amendments and our provisional view that the amendments sought by the UWU to clauses 28.4 and 29.2 be adopted. 12 Interested parties will have 7 days to comment. If no comments are received we will issue a final variation determination in the same terms as the draft and this will come into operation on 29 May 2020.

2.3 Local Government Industry Award 2010

[19] The Local Government Award draft variation determination was re-published on 19 February 2020 in accordance with the February 2020 decision (at [95]) and we invited interested parties to comment. A submission was received from the Western Australian Local Government Association 13 (WALGA) on 4 March 2020.

[20] In the March 2020 decision (at [63]), we stated that we agree with the amendments sought by the WALGA in relation to clauses 5.13, 19.1, B.1.3, B.2.1 and Schedule I and that the variation determination would be amended accordingly.

[21] The title of the award at the beginning and in the headers of the document has been changed to “Local Government Industry Award 2020”.

[22] Minor errors in the revised draft determination have been corrected as follows:

• The reference in clause 16.4(b) to “(ii)” has been changed to the full clause reference of “16.4(b)(ii)”.

• The reference in clause 19.3(a)(iii) to “(ii)” has been changed to the full clause reference of “19.3(a)(ii)”.

[23] We confirm that a final variation determination will be published along with this decision and will commence operation on 29 May 2020.

2.4 Rail Industry Award 2010

[24] The Rail Award draft determination was re-published on 19 February 2020 in accordance with the February 2020 decision (at [95]) and we invited interested parties to comment. A submission was received from the Rail, Train and Bus Union Australia 14 (RTBU) on 4 March 2020.

[25] In the March 2020 decision (at [102]) we noted that clause 20.1(c) of the variation determination will not be amended until the Casuals Full Bench has determined the issues before it.

[26] The title of the award at the beginning and in the headers of the document has been changed to “Rail Industry Award 2020”.

[27] An error has been identified at clause 18.2(b)(i), relating to the on-call allowance. The amount of “$28.12” has been changed to “$28.13” as the previous was an unrounded figure. Schedule C.1.1 has also been changed to reflect the correct figure.

[28] In clause C.1.1 of Schedule C, the footnote and the footnote text at the end of the table has been deleted.

[29] We confirm that a final variation determination will be published along with this decision and will commence operation on 29 May 2020.

2.5 Manufacturing and Associated Industries and Occupations Award 2010

[30] In the March 2020 decision (at [68]) we noted that a conference would be convened shortly to discuss the issue raised by AIG regarding amendments to the Annualised Wage Arrangements provisions 15 and any other outstanding matters in respect to the variation determination of this award.

[31] The conference was convened before Commissioner Bissett on 24 March 2020. A Report was subsequently issued on 20 April 2020. The report outlines the agreements reached by the parties.

Clause 4.4-Coverage

[32] 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.’

[33] 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).’

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

[35] In the March decision we expressed the provisional view that the coverage clause should be amended in the manner proposed by the AMWU. At the conference all participants agreed that the coverage clause should be amended as proposed by the AMWU (to reinsert the words “and occupations” after “associated industries”). We confirm our provisional view.

Annualised wage arrangements

[36] In the March 2020 decision (at [65]) we set out Ai Group’s submission 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.

[37] At the conference, Ai Group and AMWU agreed that the following references should be added to the existing 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 hour s- day workers;

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

• Clause 19.4 – Ship trial penalty rates;

• Clause 33.1 – Penalty rates for day workers;

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

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

• Clause 56 – Overtime – vehicle manufacturing employees.

[38] The Ai Group and the AMWU agreed that the clause should also cover, by proper reference, employees in the vehicle manufacturing stream.

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

Clause 20

[40] Ai Group and the AMWU agree that the cross references in clause 20.1(d)(iv) should be:

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

[41] The parties also agreed that any confusion could be set aside by including the following text (underlined) in clause 20.1(h):

[42] 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).

[43] In the March 2020 decision we confirmed that both of these changes would be made.

Schedule D

[44] In the March 2020 decision, we agreed with a submission by the AMWU 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.

[45] At the conference, the parties agreed with our decision with respect to correcting the table at D.1.2 so that the references to clause 29 read clause 30 but also noted that:

• Table D.1.2 – references to clause 52 should be to clause 53;

• Table D.1.3 – references to clause 29 should be to clause 30;

• Table D.1.3 – references to clause 52 should be to clause 53;

• Table D.2.1 – references to clause 29 should be to clause 30;

• Table D.2.1 – references to clause 52 should be to clause 53;

• Table D.2.1 – references to clause 55 should be to clause 56.

[46] We agree and confirm that the above amendments will be made.

Schedule G

[47] At the conference, the parties agreed that the heading of the table at G.4.1(c)(ii) is incorrect and should read “Table 3 – Minimum weekly rate for full-time adult trainees (AQF Certificate IV traineeship)” to reflect the text at paragraph (c). We confirm that this change will be made.

[48] All outstanding technical and drafting matters in relation to the Manufacturing award have now been resolved. The operative date of the variation determination for Manufacturing must occur at the same time as the variation determination for the Vehicle Repair, Sales and Retail Award. We deal with the timing of this for both awards below.

2.6 Vehicle Manufacturing, Repair, Services and Retail Award 2010

[49] A final variation determination was issued for this award on 14 February 2020. The variation is due to commence operation on 4 May 2020.

[50] In submissions filed on 28 February 2020 Ai Group identified an unintended effect of changes made to the provisions in relation to meal breaks and minimum breaks in the exposure draft for the Vehicle Repair, Sales and Retail Award. The MTO filed a submission dealing with the same issue.

[51] In the March 2020 decision we said:

‘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.’

[52] The conference was held on 3 April 2020 before Commissioner Bissett. A Report following the conference was published on 20 April 2020. In accordance with directions issued at the conference, Ai Group, MTO and the AMWU filed a joint report on 17 April 2020.

[53] Three issues were considered at the conference.

Clause 26- Meal breaks

[54] The parties agree that the redrafting of the provisions in the exposure draft has resulted in a substantive change to the entitlements set out in the current Vehicle award. All parties to the Joint Report agree that this matter is resolved by the following (as detailed in Attachment A of the report from the parties):

1. Amending clause 26.1(a) so that it reads:

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 or console operators whose hours are organised otherwise than under clause 27.1(a)(i).

2. Amending clause 26.2 by inserting a new paragraph (a) and re-numbering clause 26.2 according:

26.2 Working during or without a meal break

(a) Clause 26.2 will not apply to a person principally employed to perform vehicle sales related duties, employees on continuous shiftwork or console operators.

[55] We agree and confirm that the final variation determination for the Vehicle Repair, Sales and Retail Award will be amended accordingly.

Clause 24- breaks

[56] The parties agree that the proposed Vehicle Repair, Sales and Retail Award has placed provisions in relation to the minimum break between shifts in Clause 26 – Breaks when it more properly sits within the Overtime provisions and not in provisions primarily concerned with meal breaks.

[57] All parties agree that clause 26.4 should be renumbered as clause 24.12.

[58] As a consequence clause 24.11 should be amended to read:

24.11 Breaks during and after overtime

An employee is entitled to overtime crib breaks in accordance with clause 26.3.

[59] We agree and confirm that the final variation determination for the Vehicle Repair, Sales and Retail Award will be amended accordingly.

Additional exclusions

[60] The Ai Group and MTO seek to add ‘driveway attendants’ and ‘roadhouse attendants’ to the exclusions at clause 26. The MTO submits that this would better reflect the intention of the Full Bench of the Australian Industrial Relations Commission at the time of making the 2010 Award. The additional exclusions are not agreed to by the AMWU.

[61] The proposed amendments are as follows:

26.1 Meal and rest breaks

(a) Clause 26.1 will not apply to a person principally employed to perform vehicle sales related duties, employees on continuous shiftwork or driveway attendants, console operators and roadhouse attendants whose hours are organised otherwise than under clause 27.1(a)(i).

26.2 Working during or without a meal break

(a) Clause 26.2 will not apply to a person principally employed to perform vehicle sales related duties, employees on continuous shiftwork or driveway attendants, console operators and roadhouse attendants.

[62] We do not propose to make the amendment sought at this stage of the Review. Ai Group and the MTO may pursue this as a separate application to vary the award.

Timing of the variation of the Manufacturing and Vehicle Awards

[63] The variation determination for the Vehicle award that was issued on 14 February 2020 will be corrected as outlined at [54] to [58] above. A final variation determination for the Manufacturing award will be issued by 30 April 2020. Both variation determinations will have an operative date of 29 May 2020.

2.7 Educational Services (Schools) General Staff Award 2010

[64] In a decision of 14 October 2019 16, we expressed the provisional view that the Educational Services (Schools) General Staff Award (the Schools Award) should be varied in accordance with the draft variation determinations published on the same day.

[65] On 14 February 2020 we issued a Statement 17 dealing with the finalisation of the exposure draft and variation of the Schools Award. The Statement outlined a number of amendments that would be made to the exposure draft and draft variation determination. These documents were published with the statement on 14 February 2020. Interested parties were invited to make submissions in response to the revised documents by 4pm on Friday 28 February 2020.

[66] No submissions were received.

[67] In the 14 February Statement we said that if no submissions were received, we would proceed to issue a final variation determination in the same terms as the revised draft. We confirm that the final variation determination will be issued by 30 April 2020 and will have an operative date of 29 May 2020.

[68] We also confirm that the final variation determination will be updated to incorporate the new Schedule J that was inserted following a decision on 24 April 2020. 18

3. Other matters

[69] On 8 April 2020, the Commission issued a Decision varying 99 modern awards to include a new Schedule X-Additional measures during the COVID-19 pandemic. 19 Schedule X operates until 30 June 2020 unless extended.

[70] In a statement issued on 7 April 2020 20 we decided that any determinations issued by other Full Benches between the date our variation determinations were issued and the operative dates will be inserted into each of the relevant awards prior to the operative dates.

PRESIDENT

Printed by authority of the Commonwealth Government Printer

1 [2020] FWCFB 690

2 14 February 2020 – Hospitality and Restaurant awards; 19 February 2020 – Contract Call Centres, Local Government, Manufacturing, Mining and Rail awards; 21 February 2020 – Clerks award