| [2020] FWCFB 5181 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.156—4 yearly review of modern awards
4 yearly review of modern awards—Pastoral Award 2010
(AM2019/17)
JUSTICE ROSS, PRESIDENT |
MELBOURNE, 29 SEPTEMBER 2020 |
4 yearly review of modern awards – finalisation of Exposure Drafts and variation determinations – Tranche 2 – Pastoral Award 2010.
[1] This Full Bench has been constituted to oversee the process for finalising the exposure drafts produced during the 4 yearly review of modern awards (the Review) and the consequent variation of each modern award. For that purpose, the modern awards were divided into 3 Tranches. In a decision published on 2 September 2019, 1 we outlined the process for finalising the exposure drafts and consequent variations of each award.
[2] The Pastoral Award 2010 (the Pastoral Award) was a Tranche 2 award for the purpose of the finalisation of the exposure draft process. This decision deals with the finalisation of the variation determination for the Pastoral Award 2010.
[3] In a Statement issued on 9 June 2020 (the June 2020 Statement), 2 we provided an update on the finalisation of the exposure draft for the Pastoral Award. The statement confirmed a number of amendments and a revised exposure draft and draft award variation determination were published in conjunction with the Statement. Interested parties were invited to provide comments by 30 June 2020 and we said that any outstanding issues would be resolved on the papers. One submission was received, from the National Farmers’ Federation (NFF).3
[4] The NFF sought the following amendments to the revised exposure draft and draft award variation determination 4:
• references to the Horticulture Award 2010 and the Wine Industry Award 2010 in clauses 4.3(b) and (f) be amended to the Horticulture Award 2020 and the Wine Industry Award 2020;
• the paragraph titled ‘Reimbursement of expenses’ located between clauses 18.3(d) and (e) requires formatting to become a new clause 18.3(e) and any subsequent clauses renumbered accordingly; and
• the wording in clause 50.5(b)(iii) of the exposure draft revert back to the wording appearing in clause 44.4(b)(iii) in the current award.
[5] In relation to the last matter, the NFF submit that the wording in the current award uses much clearer and preferable language. The amendment sought by the NFF is as follows:
“(iii) It will be obligatory upon such learner to The learner must produce to their employer or intended employer a certificate, log book or equivalent in the following form showing the number of sheep they have shorn”
[6] We agree with the submissions of the NFF. All three amendments set out at paragraphs [4]–[6] above will be incorporated into the exposure draft and award variation determination.
[7] In addition to the amendments proposed by the NFF, the exposure draft has been updated with further amendments, as set out below.
Clause 51.9(f)
[8] The heading and wording of clause 51.9(f) has been amended to reflect the fact that the allowances are now calculated for the reader and are no longer expressed as a formula. Clause 51.9(f) has been redrafted as follows:
‘(f) Woolclassers allowances formula
Allowances included in the Woolclassers’ weekly rate are calculated in accordance with the following formula as follows:
…’
Clauses A.3.1 and A.3.2
[9] The wording for the shed hands formula for adult employees with 65 or more work days’ experience appearing in the table in clause A.3.1 has been amended from “With more than 65 work days’ experience in the industry” to “With 65 or more work days’ experience in the industry”. This wording more accurately reflects the drafting in the Annual Wage Review determination. 5 The same amendment has also been made for junior employees with 65 or more work days’ experience appearing in the table in clause A.3.2.
Clauses B.3.1, B.5.1, B.5.4 and B.7.3
[10] The column heading “Junior hourly rate—Ordinary hours” has been amended to read “Ordinary hours” in clauses B.3.1, B.5.1 and B.5.4 to maintain consistent referencing throughout Schedule B.
[11] Similarly, the column heading “Casual hourly rate” contained in clause B.7.3 has been amended to “Ordinary hours” to maintain consistent referencing throughout Schedule B.
Clauses B.3.4 and B.7.3
[12] The column headed ‘Junior weekly rate’ has been removed from the table of ordinary and penalty rates for casual farm and livestock hand junior employees appearing in clause B.3.4, consistent with other tables in Schedule B. The base rate for a casual employee is 125% of the ordinary hourly rate.
[13] The column headed ‘Junior hourly rate’ has also been removed for these reasons from the table of ordinary and penalty rates for casual junior poultry farm worker employees appearing in clause B.7.3.
[14] Schedule X—Additional Measures During the COVID-19 Pandemic has been inserted (see [2020] FWCFB 1837) and the subsequent variation to Schedule X ([2020] FWCFB 5137).
Annual Wage Review 2019-2020
[15] Rates have been updated in line with the adjustment provided for in the 2019-2020 Annual Wage Review (AWR) decision. 6 The Pastoral Award is categorised as a Group 2 Award for the purposes of the implementation of the AWR decision and as such adjusted rates operative from the start of the first full pay period on or after 1 November 2020.
[16] In addition to the amendments noted at paragraphs [9] to [16] above, the following minor drafting amendments have also been made:
• Clause 2, the definition of a casual pieceworker has been amended by replacing the reference to “prescribed by this award” to “in accordance with Part 9—Shearing Operations”;
• Clause 7.2, the word “of” has been replaced with “off” so the 9th row in the table reads “Broadacre Farming and Livestock Operations—Time off instead of payment for overtime”;
• Clause 8.3(b)(ii), the cross-references to “Part 5” and “Part 8” have been amended to “Part 6—Broadacre Farming and Livestock Operations” and “Part 9—Shearing Operations”, respectively;
• Clauses 32.2, 37.2 and 47.2, the word “at’ has been removed wherever it appears in the tables;
• Clauses 32.3, 37.2 and 47.2, reference to the word “Schedule” in the Note below each clause has been amended to “clause” or “clauses”, as appropriate;
• Clause 34.3, the reference to “5 and a half” has been amended to “5.5”;
• Clause 55.3, has been reformatted according to the modern awards style;
• Clause 56.2, the word “a” has been inserted before “Woolpresser-shed hand”;
• Clauses B.4.2, B.4.5, B.5.2, B.5.5, reference to “clauses 42.1(a), (b), (d)” has been changed to refer to “clauses 42.1(a), 42.1(b) and 42.1(d)”.
[17] There are no other outstanding technical and drafting matters in relation to the Pastoral Award. In our 14 October 2019 Decision 7, we expressed the provisional view that the variation of the modern awards in Tranche 2 in accordance with the draft variation determinations set out at Attachment C of that decision (which included the Pastoral Award) is necessary to achieve the modern awards objective. In reaching that conclusion we adopted the reasons set out in the decisions at Attachment B of the 14 October 2019 Decision insofar as they are relevant to the Pastoral Award and, in particular, to the considerations in ss.134(1)(a) to (h), which are addressed in each of those decisions. Subject to the amendments we have detailed in this decision, we confirm our provisional view.
[18] A final variation determination will be issued incorporating the amendments at paragraphs [5] to [16] above with an operative date of 6 November 2020.
PRESIDENT
Printed by authority of the Commonwealth Government Printer
<PR723123>
3 National Farmers Federation submission, 30 June 2020.
4 Ibid, at paras 1-3.
6 [2020] FWCFB 3500 at [178].