DECISION

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

4 yearly review of modern awards
(AM2019/17)

4 yearly review of modern awards – finalisation of exposure drafts – Manufacturing and Associated Industries and Occupations Award 2020.

[1] On 30 April 2020 we issued a determination finalising the Manufacturing and Associated Industries Award 2020 (the Manufacturing Award 2020), which came into operation on 29 May 2020. 1 A correction determination was issued on 27 May 2020.2

[2] An issue concerning entitlements to Sunday and public holiday penalty rates for vehicle manufacturing employees engaged in shiftwork in the Manufacturing Award 2020 was subsequently identified. In a statement published on 2 July 2020 (the July 2020 Statement), 3 Commissioner Bissett set out the issue as follows:

“[3] Previously, in the Vehicle Manufacturing, Repair, Services and Retail Services Award 2010 (the Vehicle Award 2010), vehicle manufacturing employees engaged in shiftwork were entitled to the penalty rates for Sunday and public holiday work set out in clauses 55.5 and 55.6 of the Vehicle Award 2010.

[4] These entitlements appear to have been omitted from the Manufacturing Award 2020. The award sets out the penalty rates payable to day workers for work on Sundays and public holidays in clause 33.1. The penalty rates payable to shiftworkers for work on Sundays and public holidays are set out in clause 33.2(j), however clause 33.2(a) excludes vehicle manufacturing employees from the operation of clause 33.2 (Rates for shiftworkers). Penalty rates for these shiftworkers are prescribed in clause 55.1 of Part 9—Vehicle manufacturing employees, however clause 55.1 does not contain penalty rates for Sunday or Public Holiday work.”

[3] In the July 2020 Statement, Commissioner Bissett expressed the provisional view that there appeared to be an error in the Manufacturing Award 2020 and that the error should be corrected. A draft correction determination inserting the Sunday and public holiday penalty rates provisions from clauses 55.5 and 55.6 of the Vehicle Award 2010 into clause 55 of the Manufacturing Award 2020 was attached to the statement. Parties were asked to comment on the draft determination by 4:00 pm Wednesday, 15 July 2020.

[4] On 20 July 2020 a joint submission was received from the AMWU and the Ai Group supporting the provisional view and draft correction determination set out in the Statement. 4 No other submissions were received.

[5] In accordance with the recommendations in a Report by Commissioner Bissett to the Full Bench, 5 we have formed the provisional view that the Manufacturing Award 2020 be varied in accordance with the draft determination which has been reproduced at Attachment A of this Report.

[6] Parties opposing our provisional view are asked to make submissions by 4:00 pm Thursday, 20 August 2020. If no submissions are received a final determination will be issued varying the award.

PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR721609>

Attachment A

MA000010  PRXXXXXX

DRAFT DETERMINATION

Fair Work Act 2009

s.156—4 yearly review of modern awards

4 yearly review of modern awards

(AM2019/17)

MANUFACTURING AND ASSOCIATED INDUSTRIES AND OCCUPATIONS AWARD 2010

[MA000010]

4 yearly review of modern awards – Manufacturing and Associated Industries and Occupations Award 2010 – modern award varied – correction.

A. The determinations issued by the Full Bench on 30 April 2020 [PR718704] and 27 May 2020 [PR719473] are corrected as follows:

1. By deleting clause 33.2(a) of the attachment to the determination published on 27 May 2020 and inserting the following:

(a) Clause 33.2 does not apply to vehicle manufacturing employees covered by clause 4.8(a)(xi). The rates for shiftwork for these employees are prescribed in clause 55 of Part 9—Vehicle manufacturing employees of this award.

2. By deleting clause 40.2 of the attachment to the determination published on 27 May 2020 and inserting the following:

40.2 Where an employee works on a public holiday they will be paid in accordance with clauses 17.2(g), 33.1(b), 32.7, 33.2(j) and 55.3.

3. By inserting clause 55.2 into the attachment to the determination published on 27 May 2020 as follows:

55.2 Penalty rates for shiftworkers—Sunday shifts

(a) Where an employee works an afternoon or night shift on a Sunday, the work done will be paid for at the rate of 200% of the minimum hourly rate.

(b) A shift commencing before 10.45 pm on a Sunday will be regarded as a Sunday shift and all work done during that shift will be paid for at the rate of 200% of the minimum hourly rate.

(c) A shift commencing at 10.45 pm or between 10.45 pm and midnight on a Sunday will not be regarded as a Sunday shift and work done during that shift will not entitle an employee to the Sunday rate.

(d) A shift commencing before midnight on the day preceding a Sunday and extending into the Sunday will be regarded as Sunday shift and all work done during that shift will be paid for at the rate of 200% of the minimum hourly rate.

4. By inserting clause 55.3 into the attachment to the determination published on 27 May 2020 as follows:

55.3 Penalty rates for shiftworkers—public holiday shifts

(a) An employee who works an afternoon or night shift on a public holiday will be paid for that work at the rate of 250% of the minimum hourly rate.

(b) A shift commencing before 10.45 pm on a public holiday will be regarded as a public holiday shift and all work done during that shift will be paid for at the rate of double time and a half.

(c) Except as provided in clause 55.3(e) a shift commencing at 10.45 pm or between 10.45 pm and midnight on a public holiday will not be regarded as a public holiday shift and work done during that shift will not entitle an employee to the public holiday rate.

(d) Except as provided in clause 55.3(e) a shift commencing before midnight on the day preceding a public holiday and extending into the public holiday will be regarded as a public holiday shift and all work done during that shift will be paid for at the rate of 250% of the minimum hourly rate.

(e) Notwithstanding clauses 55.3(c) and (d) where an employee is rostered for a shift which terminates on a public holiday and a shift which commences on the same public holiday, one shift only will be regarded as the public holiday shift and such shift will be the one, the major portion of which falls on the public holiday.

(f) For the purpose of clause 55.3 public holiday means a day provided for in clause 40—Public holidays

5. By inserting the following into the table appearing at clause C.1.1 of the attachment to the determination published on 27 May 2020, underneath the final row entitled “Saturday (clause 55.1(e))”:

Sunday shifts (clause 55.2)	200%
Public holiday shifts (clause 55.3)	250%

6. By updating the table of contents and cross references accordingly.

B. This determination comes into operation from ** August 2020. In accordance with s.165(3) of the Fair Work Act 2009, this determination does not take effect in relation to a particular employee until the start of the employee’s first full pay period that starts on or after ** August 2020.

PRESIDENT

Printed by authority of the Commonwealth Government Printer

 1   PR718704.

 2   PR719473.

 3   [2020] FWC 3396.

 4   Submission, AMWU and Ai Group, 20 July 2020.

 5   Report to the Full Bench, 22 July 2020.