DECISION

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

4 yearly review of modern awards – Overtime for casuals
(AM2017/51)

4 yearly review of modern awards – Hair and Beauty Industry Award 2010 – outstanding issue

[1] On 5 March 2021, we published a decision 1 (March decision) in which we addressed the need to rectify an error resulting from the previous deletion of clause 13.3 in the Hair and Beauty Industry Award 2010 (HB Award) following variations made to the HB Award on 30 October 2020,2 giving effect to two previous decisions in these proceedings issued on 18 August 20203 and 30 October 2020.4 The background to this matter and the circumstances in which this outstanding issue for determination arose is summarised in paragraph [2] of the March decision and need not be repeated here. In that decision, we expressed the provisional view that a variation to clause 31.2 of the HB Award was necessary to rectify this error. We also expressed the provisional view that a variation to clause 13.3 be made to clarify drafting uncertainties relating to the interaction of clauses 13.3, 28.2 and 31.2 of the HB Award. The terms of the variations proposed in these respects were set out in paragraphs [10]-[11] of the March decision.

[2] Interested parties were invited to make any submissions in response to the provisional views within 14 days of the March decision.

[3] Written submissions in response to these provisional views were received from the Australian Workers’ Union (AWU), the Shop Distributive and Allied Employees’ Association (SDA) and the Australian Industry Group together with Hair and Beauty Australia and the Australian Hair Council (Ai Group). The AWU supported the making of the proposed variations. The SDA supported the proposed variation to clause 31.2 and did not oppose the proposed variation to clause 13.3. The Ai Group did not express any view in respect of the proposed variations.

[4] Having regard to these submissions, we confirm the provisional views expressed in the March decision. Determinations giving effect to the variations will be published in conjunction with this decision. The variations will take effect seven days after the date of this decision.

[5] In paragraph [13] of the March decision, we also noted that clause 31 of the HB Award does not appear to prescribe a rate which applies when a full-time or part-time employee works outside the span of hours specified in clause 28.2(a) or in excess of the maximum daily hours specified in clause 28.3. We invited interested parties to address this issue in their submissions. It is not necessary to refer to the submissions made about this issue by the AWU, the SDA and the Ai Group at this stage, except to say that the submissions identify that the issue has previously arisen during the concurrent Modern Award Plain Language proceedings being conducted by a differently constituted Full Bench.

[6] The President of the Commission has now assigned the determination of this issue to this Full Bench. The presiding member will conduct a conference in relation to the issue in the week commencing Monday 9 August 2021.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR732346>

 1   [2020] FWCFB 1121

 2   PR723908

 3   [2020] FWCFB 4350

 4   [2020] FWCFB 5636