| [2020] FWCFB 5182 |
| 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 |
MELBOURNE, 29 SEPTEMBER 2020 |
4 yearly review of modern awards – finalisation of Exposure Drafts and variation determinations – Tranche 2 – Pharmaceutical Industry 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] This decision deals with the finalisation of the variation determination for the Pharmaceutical Industry Award 2010 (the Pharmaceutical Award). The Pharmaceutical Award was included in Tranche 2 for the purpose of the finalisation of the exposure draft process.
[3] The exposure draft and draft award variation determination for the Pharmaceutical Award were published on 14 October 2019.
[4] In a decision issued on 24 December 2019 (December 2019 decision) we finalised technical and drafting matters in the Pharmaceutical Award and dealt with two outstanding issues. 2
[5] The first issue concerned clauses 13.2 and 13.3. At [367] of the December 2019 decision we agreed with Ai Group’s proposed changes and decided to vary the exposure draft accordingly. However, in order to conform with our standard drafting style and plain language drafting guidelines the clause has been restructured so that the provisions applying to each type of employee appear before the provisions applying generally. The clauses have been redrafted as follows:
“13.2 Ordinary hours—day workers
(a) The ordinary hours of work for a full-time day worker are an average of 38 hours per week but not exceeding 152 hours in 28 consecutive days.
(b) The ordinary hours of work for a part-time day worker will be in accordance with clause 10—Part-time employees.
(c) The ordinary hours of work for a casual day worker are an average of up to 38 hours per week but not exceeding 152 hours in 28 consecutive days.
(b)(d) Ordinary hours are worked continuously, except for meal breaks and rest pauses, between 7.45 am and 5.15 pm, Monday to Friday.
(c)(e) Where the employer and the majority of employees in the affected plant, work section or sections agree, the spread of hours may be altered by up to one hour at either end of the spread.
(d) The ordinary hours of work for a part-time employee will be in accordance with clause 10—Part-time employees.
13.3 Ordinary hours—shiftworkers
(a) The ordinary hours of work for a full-time shiftworkers are an average of 38 hours per week but not exceeding 152 hours in 28 consecutive days.
(b) The ordinary hours of work for a part-time shiftworker will be in accordance with clause 10—Part-time employees.
(c) The ordinary hours of work for a casual shiftworker are an average of up to 38 hours per week but not exceeding 152 hours in 28 consecutive days.
(b)(d) Ordinary hours must not exceed 8 hours in any one day.
(c)(e) At the discretion of the employer, ordinary hours must be worked continuously on Monday to Friday, except for meal breaks.
(d)(f) Except at changeover of shifts, an employee must not be required to work more than one shift in each 24 hours.”
[6] The second issue related to a contested amendment to the overtime provisions contained in clauses 19.1 and 19.2 in the exposure draft. A conference was held on 12 March 2020 3 in relation to this issue. The conference was attended by representatives of Ai Group and the Australian Worker’s Union (AWU). At the conference the parties confirmed that the that the definition of overtime in clause 19.1 of the exposure draft is inconsistent with the current award and that clause 19.2 requires payment of the rates included during overtime only. The parties submitted that the amendments potentially change the substance of clause 25 of the current award. Ai Group undertook to draft a proposal to resolve the issue and to circulate the proposal the other parties.
[7] In a statement issued on 6 May 2020 the Commission directed interestesd parties to file a Report Back to the Full Bench by 15 May 2020. 4 Ai Group subsequently advised that they had conferred with the AWU and that the parties had agreed on a proposed variation to clause 19 of the exposure draft, as follows:5
“19. Overtime and penalty rates
(a) For a full-time or casual employee overtime is any time: worked outside ordinary hours of work, as defined by clause 13—Ordinary hours of work and rostering.
(i) outside the times of beginning and ending work in any one day;
(ii) within the times of beginning and ending work but in excess of 8 hours in any one day;
(iii) on a Saturday, Sunday, public holiday or rostered day off.
(b) For a part-time employee, overtime is any time worked in excess of the employee’s hours as agreed in accordance with clauses 10.2 and 10.3.
Where an employee works overtime the employer must pay to the employee the overtime rates as follows:Where an employee performs work described in the table below, the employer must pay the employee the corresponding rate prescribed:
|
|
Minimum payment |
|
|
||
Day workers |
||
Monday to Friday working |
||
– first 2 hours |
150 |
– |
– after 2 hours |
200 |
– |
Shiftworkers |
||
Monday to Friday working |
||
– first 3 hours |
150 |
– |
– after 3 hours |
200 |
– |
All employees |
||
Monday to Friday outside the times of beginning and ending work in any one day: |
||
– first 2 hours |
150 |
– |
– after 2 hours |
200 |
– |
Saturday |
|
3 hours |
– first 2 hours |
150 |
|
– after 2 hours |
200 |
|
|
|
|
Sunday all day |
200 |
3 hours |
Rostered day off (except where the employee is provided with a day off on a future date – see clause 19.3) |
250 |
– |
Public holiday all day |
250 |
NOTE: See Schedule B—Summary of Hourly Rates of Pay for a summary of overtime and penalty rates.”
[8] We agree with the proposed amendment and the exposure draft and variation determination have been updated accordingly. As a consequence of the amendments made to clause 19, the following amendments have also been made:
• Clause 20, the clause heading has changed from “Penalty rates” to “Shift penalty rates”;
• Clause B.1, a new column has been added to display penalty rates paid for working on a RDO, along with a footnote to clarify that those are the rates paid for work performed on a RDO if the employee has not been provided with a day off on a future date;
• Clause B.2, footnote 1 has been amended to reflect the updated wording in clause 19.2 and footnote 2 has been added to clarify that those are the rates paid for work performed on a RDO if the employee has not been provided with a day off on a future date;
• Clause B.3, the heading has changed to “Full-time and part-time employees—shiftworkers—ordinary and shift penalty rates”, a new column has been added to display penalty rates paid for working on a RDO and a footnote has been added to clarify that those are the rates paid for work performed on a RDO if the employee has not been provided with a day off on a future date;
• Clause B.4, column 2 and 3 headings have been amended for clarity, footnotes 1 and 2 have been amended to reflect the updated wording in clause 19.2 and footnote 3 has been added to clarify that those are the rates paid for work performed on a RDO if the employee has not been provided with a day off on a future date.
[9] In addition to the amemdments noted at paragraphs [5], [7] and [8] above, the exposure draft and variation determination have been updated to include the finalised technical and drafting issues and the errors noted in the December 2019 decision 6 have been corrected. Further, the following minor drafting amendments have also been made:
• Clause 7.2(b), a reference to clause 14.1(b) has been added;
• Clause 11.2 has been reformatted according to the modern awards style;
• Clause 14.1(b), the reference to “ordinary hourly rates” has been changed to “minimum hourly rates”;
• Clause 15.1(b), the reference to “minimum wages” has been changed to “minimum rates” and part of the previous text has been moved to a note;
• Clause 15.1(b)(ii), the reference to “supported wages” has been changed to “supported wage”;
• Clause 16.4(b), the cross-reference to “16.4” has been changed to “16.4(a)” in line with the current award;
• Clause 17.2(a)(ii), the word “holding” has been changed to “holds”;
• Clause 17.2(d), the words “or part of an hour” have been added after the words “per hour” in line with the current award;
• Clause 17.3(a)(i), the reference to “one and a half” have been changed to “1.5”;
• Clause 19.2, the reference to “overtime rates” in the note at the end of the clause has been changed to “overtime and penalty rates”;
• Clause 19.3, the reference to “above rate” have been changed to “rate in clause 19.2”;
• Clause 20.1 has been reformatted to reflect the change to clause 20.1(c)(iv) and the modern awards style;
• Clause 20.2, the reference to “penalties” in the note at the end of othe clause has been changed to “shift penalty rates”;
• Clause 2.15(b), the cross-reference to clause “21.1” has been changed to “21.3” in line with the current award;
• Clause 21.6, a reference to clause 21.3(e) has been added;
• Clause C.1.1, the reference to “minimum hourly wage” has been changed to “minimum hourly rate”;
• Clause C.1.1, in the rows for Chlorpromazine hydrochloride and Respirator the words “per hour or part thereof” have been changed to “per hour or part of an hour”;
• Clause C.1.1, in the rows for Sterile areas and Dust mask the words “per day or part thereof” have been changed to “per day or part of a day”;
• Clause C.2.1, the reference to “allowances” has been changed to “allowance”;
• Schedule H, the title has been changed from “Part-day Public Holiday” to “Part-day Public Holidays”.
[10] The following amendments made to the current award have also been made to the exposure draft:
• The variation to Schedule E—Part-day Public Holidays ([2019] FWCFB 8491);
• The insertion of Schedule X—Additional Measures During the COVID-19 Pandemic ([2020] FWCFB 1837) and the variation to Schedule X ([2020] FWCFB 3490);
• The variation to clause 15.4—National training wage ([2020] FWCFB 3074).
[11] There are no other outstanding technical and drafting matters to be determined in relation to the Pharmaceautical 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 Pharmaceautical 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 Pharmaceautical 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.
[12] A final variation determination will be issued incorporating the amendments at paragraphs [5], [7], [8], [9] and [10] above with an operative date of 6 November 2020.
PRESIDENT
Printed by authority of the Commonwealth Government Printer
<PR723124>
2 [2019] FWCFB 8569 at [363]-[380]
3 Conference transcript, 12 March 2020
4 [2020] FWC 2384 at [4]
5 Ai Group submission, 22 May 2020
6 [2019] FWCFB 8569 at [7]-[26]