| [2021] FWCFB 5123 |
| FAIR WORK COMMISSION |
STATEMENT |
Fair Work Amendment (Supporting Australia's Jobs and Economic Recovery) Act 2021
cl.48, Schedule 1 of the Fair Work Act 2009
Casual terms award review 2021
(AM2021/54)
Various industries | |
VICE PRESIDENT HATCHER |
SYDNEY, 18 AUGUST 2021 |
Fair Work Amendment (Supporting Australia’s Jobs and Economic Recovery) Act 2021 – casual amendments – review of modern awards – Stage 2, Group 3 Awards – provisional views.
[1] On 27 March 2021 the Fair Work Act 2009 (Cth) (Act) was amended by Schedule 1 to the Fair Work Amendment (Supporting Australia’s Jobs and Economic Recovery) Act 2021 (Cth) (Amending Act). The amendments included introducing a definition of ‘casual employee’ in s.15A of the Act and casual conversion arrangements in Division 4A of Part 2-2 of the Act.
[2] The Amending Act inserted additional application, savings and transitional provisions into Schedule 1 of the Act. The newly inserted cl.48 of Schedule 1 to the Act requires the Fair Work Commission (Commission) to conduct a review and vary modern awards where necessary to remove inconsistencies, difficulties or uncertainties caused by the amendments to the Act (Casual Terms Review or Review).
[3] The Commission has commenced the Casual Terms Review and it is being conducted in 2 stages. In the first stage a five-member Full Bench considered the nature and scope of the Review and reviewed ‘relevant terms’ (as defined in cl.48) in an initial group of 6 modern awards (Stage 1 awards).
[4] Interested parties were provided with the opportunity to file submissions and to respond to particular questions posed in a Discussion Paper 1 published by the Commission and a hearing was held on 24 June 2021.
[5] The five-member Full Bench issued a decision 2 in relation to Stage 1 on 16 July 2021 (July 2021 decision). The decision sets out the statutory framework for the review and provides a detailed discussion of ‘relevant’ terms in the Stage 1 priority awards and how they interact with the new definitions under the Act as amended.
[6] This Full Bench has been constituted to review the remaining modern awards which have been divided into 4 groups as part of Stage 2 of the Review. Those groups have most recently been detailed in a statement 3 issued on 3 August 2021 by this Full Bench (August 2021 statement).
[7] In the August 2021 statement and in two further statements issued on 6 August 2021 4 and 11 August 20215, this Full Bench reviewed the July 2021 decision and adopted the reasoning of the five-member Full Bench in relation to the ‘relevant terms’ that can be subject of the Review. We expressed provisional views in relation to the Groups 1 and 2 awards as set out in the attachments to those statements. We also dealt with award-specific issues, as well as general issues relating to casual conversion clauses and the categorisation of casual definition clauses which affects multiple awards.
[8] We now turn to review awards in Group 3.
[9] The awards in Group 3 are as follows:
• Banking, Finance and Insurance Award 2020;
• Business Equipment Award 2020;
• Clerks - Private Sector Award 2020;
• Coal Export Terminals Award 2020;
• Commercial Sales Award 2020;
• Contract Call Centres Award 2020;
• Dredging Industry Award 2020;
• Educational Services (Post-Secondary Education) Award 2020;
• Educational Services (Schools) General Staff Award 2020;
• Electrical Power Industry Award 2020;
• Fitness Industry Award 2020;
• Gardening and Landscaping Services Award 2020;
• Higher Education Industry-Academic Staff-Award 2020;
• Higher Education Industry-General Staff-Award 2020;
• Horticulture Award 2020;
• Labour Market Assistance Industry Award 2020;
• Legal Services Award 2020;
• Local Government Industry Award 2020;
• Marine Towage Award 2020;
• Market and Social Research Award 2020;
• Miscellaneous Award 2020;
• Nursery Award 2020;
• Port Authorities Award 2020;
• Ports, Harbours and Enclosed Water Vessels Award 2020;
• Real Estate Industry Award 2020;
• Seagoing Industry Award 2020;
• Silviculture Award 2020;
• Sporting Organisations Award 2020;
• Sugar Industry Award 2020;
• Telecommunications Services Award 2020; and
• Wine Industry Award 2020.
[10] Taking into account the reasoning and conclusions in the July 2021 decision, we have formed provisional views in relation to the Group 3 awards. These are set out in Attachment A to this Statement.
[11] There are a number of specific issues contained within the Group 3 awards which we will deal with below.
[12] A number of awards in Group 3 contain casual conversion clauses which differ from and pre-date the model conversion clause. We will discuss each below in turn.
3.1 Dredging Industry Award 2020
[13] The model casual conversion clause is contained in clause 11.5 of this award. Clause 11.1 of this award limits the engagement of any casual employee to a period of 4 weeks (as discussed further below). The casual conversion clause therefore would appear to have no work to do, since a casual employee under this award could never meet the qualifying period of service.
[14] As discussed in the July 2021 decision, the model casual conversion clause is less beneficial than the NES residual right to request casual conversion and gives rise to interaction difficulty with the Act. In respect of the awards considered in the July 2021 decision, it was concluded that the model clause should be deleted and replaced with a reference to the NES provisions. However, under this award, the NES provisions would also have no work to do because of clause 11.1. Therefore, our provisional view is that clause 11.5 should be deleted, but that no purpose would be served by replacing it with a reference to the NES provisions.
[15] The Educational Services (Post-Secondary Education) Award 2020 (the Educational Services Post-Secondary Award) contains the model casual conversion clause for non-teaching staff members and, for teaching staff members, contains the following award-specific provision:
“11.10 Right to request casual conversion (teaching staff members)
(a) Clause 11.10 applies only to teaching staff members.
(b) A person engaged by a particular employer as a regular casual employee may request that their employment be converted to full-time employment, part-time employment or sessional employment.
(c) A regular casual employee is a casual employee who has in the preceding period of 12 months worked a pattern of hours on an ongoing basis which, without significant adjustment, the employee could continue to perform as a full-time employee, part-time employee or sessional employee under the provisions of this award.
(d) A regular casual employee who has worked equivalent full-time hours over the preceding period of 12 months’ casual employment may request to have their employment converted to full-time employment or sessional employment on a full time basis.
(e) A regular casual employee who has worked less than equivalent full-time hours over the preceding period of 12 months’ casual employment may request to have their employment converted to part-time employment or sessional employment on a part time basis consistent with the pattern of hours previously worked.
(f) Any request under clause 11.10 must be in writing and provided to the employer.
(g) Where a regular casual employee seeks to convert to full-time, part-time or sessional employment, the employer may agree to or refuse the request, but the request may only be refused on reasonable grounds and after there has been consultation with the employee.
(h) Reasonable grounds for refusal include:
(i) that it would require a significant adjustment to the casual employee’s hours of work in order for the employee to be engaged as a full-time, part-time or sessional employee in accordance with the provisions of this award; that is, the casual employee is not truly a regular casual employee as defined in clause 11.10(c);
(ii) (except in the case of a request to convert to sessional employment) that it is known or reasonably foreseeable that the regular casual employee’s position will cease to exist within the next 12 months;
(iii) (except in the case of a request to convert to sessional employment) that it is known or reasonably foreseeable that the hours of work which the regular casual employee is required to perform will be significantly reduced in the next 12 months; or
(iv) it is known or reasonably foreseeable that there will be a significant change in the days and/or times at which the employee’s hours of work are required to be performed in the next 12 months which cannot be accommodated within the days and/or hours during which the employee is available to work.
(i) For any ground of refusal to be reasonable, it must be based on facts which are known or reasonably foreseeable.
(j) Where the employer refuses a regular casual employee’s request to convert, the employer must provide the casual employee with the employer’s reasons for refusal in writing within 21 days of the request being made.
(k) If the employee does not accept the employer’s refusal, this will constitute a dispute that will be dealt with under the dispute resolution procedure in clause 30—Dispute resolution. Under that procedure, the employee or the employer may refer the matter to the Fair Work Commission if the dispute cannot be resolved at the workplace level.
(l) Where it is agreed that a casual employee will have their employment converted to fulltime, part-time or sessional employment as provided for in clause 11.10, the employer and employee must discuss and record in writing:
(i) the form of employment to which the employee will convert; that is, full-time or part-time employment or sessional employment on a full time or part-time basis; and
(ii) if it is agreed that the employee will become a part-time employee, the matters referred to in clause 10.2.
(m) The conversion will take effect from the start of the next pay cycle following such agreement being reached unless otherwise agreed.
(n) Once a casual employee has converted to full-time or part-time employment, the employee may only revert to casual employment with the written agreement of the employer.
(o) A casual employee must not be engaged and re-engaged (which includes a refusal to reengage), or have their hours reduced or varied, in order to avoid any right or obligation under clause 11.10.
(p) Nothing in clause 11.10 obliges a regular casual employee to convert to full-time or part-time employment, nor permits an employer to require a regular casual employee to so convert.
(q) Nothing in clause 11.10 requires an employer to increase the hours of a regular casual employee seeking conversion to full-time or part-time employment.
(r) An employer must provide a casual employee, whether a regular casual employee or not, with a copy of the provisions of clause 11.10 within the first 12 months of the employee’s first engagement to perform work. In respect of casual employees already employed as at 9 May 2019, an employer must provide such employees with a copy of the provisions of clause 11.10 by 9 August 2019.
(s) A casual employee’s right to request to convert is not affected if the employer fails to comply with the notice requirements in clause 11.10(r).”
[16] The above provision was included in the award in 2019 in accordance with a decision of the 4 yearly review Full Bench dealing with part-time and casual employment. 6 The provision mirrors the model clause in all respects except that it contains the right for a casual employee to request to convert from casual employment to either full-time, part-time or sessional employment. Clause 11.7 provides that a sessional employee is ‘an employee engaged to work on a full-time or part-time basis for a specified period or periods of not less than 4 weeks or not more than 40 weeks in any calendar year’. Only teaching staff may be sessional employees. The provision was developed by the ACTU in consultation with other industry parties, and was adopted by the 4 yearly review Full Bench on the basis that it was consistent with the model clause but with the appropriate modification to suit the circumstances of the award.7
[17] Our provisional view is that:
(1) consistent with the July 2021 decision the current clause is less beneficial than the NES and is not consistent with the Act;
(2) the capacity under clause 11.10 to convert casual employees to sessional employment does not represent a benefit which is not provided for under the NES residual right to request conversion in the Act;
(3) as clause 11.7 makes clear and as discussed further below, sessional employment is a time-limited species of full-time or part-time employment, and there is nothing in s.66F of the Act which prevents an employee requesting conversion to full-time or part-time employment of a sessional nature or prevents an employer from granting that request; and
(4) consistent with the July 2021 decision, clause 11.10 should be deleted and replaced with a reference to the NES casual conversion entitlements in order to satisfy the requirements of cl.48(3) of Schedule 1.
[18] The Higher Education Industry—General Staff—Award 2020 (Higher Education—General Staff Award) does not contain the model conversion clause. Instead, it contains the following provision which has been included in the award since it commenced operation on 1 January 2010:
“12.4 Casual conversion
(a) General
(i) An employee must not be engaged and re-engaged nor have their hours reduced in order to avoid any obligation under this clause.
(ii) Upon appointment, the employer must advise a casual employee that, after serving qualifying periods, see clause 12.4(b), casual employees may have a right to apply for conversion and a copy of the conversion provisions of this award will be made available to such employees.
(iii) The employer must also take reasonable steps from time to time to inform casual employees of the conversion provisions of this award. (iv) An eligible casual employee may apply in writing for conversion to non-casual employment in accordance with the conversion provisions of this award.
(b) Eligibility for conversion
(i) To be eligible to apply for conversion, a casual employee must be employed on a regular and systematic basis in the same or a similar and identically classified position in the same department (or equivalent), either:
• over the immediately preceding period of 12 months and in those immediately preceding 12 months the average weekly hours worked equalled at least 50% of the ordinary weekly hours that would have been worked by an equivalent full-time employee; or
• over the immediately preceding period of at least 24 months.
(ii) For the purposes of this clause occasional and short-term work performed by the employee in another classification, job or department must not:
• affect the employee’s eligibility for conversion;
• be included in determining whether the employee meets or does not meet the eligibility requirements.
(c) Application for conversion
The employer will not unreasonably refuse an application for conversion. However, it may refuse an application on reasonable grounds. Reasonable grounds include, but are not limited to, the following:
(i) the employee is a student, or has recently been a student, other than where their status as a student is irrelevant to their engagement and the work required;
(ii) the employee is a genuine retiree;
(iii) the employee is performing work which will either cease to be required or will be performed by a non-casual employee, within 26 weeks (from the date of application);
(iv) the employee has a primary occupation with the employer or elsewhere, either as an employee or as a self-employed person;
(v) the employee does not meet the essential requirements of the position; or
(vi) the work is ad hoc, intermittent, unpredictable or involves hours that are irregular.
(d) Offer of non-casual employment
(i) The employer must determine an application for conversion either by offering conversion to non-casual employment or by rejecting the application. If the employer rejects the application, it must provide written reasons for rejecting it. If the application is accepted, the employee will be offered a non-casual position.
(ii) Conversion may be to either a continuing appointment or to a fixed-term appointment. The offer of conversion will indicate the hours and pattern of work which, subject to due consideration of the employer’s operational requirements and the desirability of offering the employee work which is as regular and continuous as is reasonably practicable, will be consistent with the employee’s casual engagement. The conversion offer will also constitute (and include such other details as are required for) an instrument of engagement under the award.
(iii) Employees converted under this clause will not have their casual service count as service for the purpose of calculating any other existing entitlements except for:
• long service leave, if, at the time of conversion, the employer provides casual employees with an entitlement to long service leave. In such a case casual service with the employing institution would count for the purposes of any qualifying period for long service leave, but would not give rise to any paid leave entitlement in respect of that casual service, except where institutions, at the time of making this award, pay long service leave to casuals in relation to their casual service; an
• any applicable unpaid parental leave.
(e) Further applications
An employee whose application for conversion is rejected will not be entitled to apply again within 12 months except where:
(i) that rejection is solely based upon the ground set out in 12.4(c)(iii); and
(ii) that ground ceased to apply.”
[19] This provision does not appear to be different to the casual conversion provisions in the Manufacturing and Associated Industries and Occupations Award 2020 (the Manufacturing Award) or the Hospitality Industry (General) Award 2020 (Hospitality Award). We consider its terms below.
[20] Casual conversion under clause 12.4 is less beneficial than that provided under the NES as it provides only for employees to make an application in writing for conversion (see clause 12.4(a)(iv)). There is no requirement under clause 12.4 for an employer to offer an employee an opportunity to convert. Under the NES, after 12 months employment, an employer must offer an eligible employee an opportunity to convert unless the employer has reasonable grounds not to make the offer. The NES requirement to offer an opportunity is clearly more beneficial than clause 12.4.
[21] Clause 12.4(b) appears less beneficial than the NES residual right because it stipulates that to be eligible for conversion, a casual employee must have either, over the preceding 12 month period, worked average weekly hours of at least 50% of the ordinary hours that would have been worked by an equivalent full-time employee; or have been employed over the immediately preceding period of at least 24 months. Under the NES residual right, an employer must make an offer to a casual employee who has been employed for a period of 12 months and during at least the last 6 months, the employee worked a regular pattern of hours on an ongoing basis which, without significant adjustment, the employee could continue to work as a full-time employee or a part-time employee (as the case may be). The NES residual right is more beneficial in this regard.
[22] Clause 12.4(c) provides that an employer will not unreasonably refuse an application and this may on balance be equivalent to the NES requirement regarding employer consideration of requests. Clause 12.4(c) sets out a number of examples of ‘reasonable grounds’ which differ to those outlined in the NES. It is unlikely that the grounds specified in clause 12.4(c)(i), (ii) or (iv) would, by themselves, constitute reasonable grounds for refusal under s.66H(1)(b) of the Act. Nor do the grounds for refusal under clause 12.4(c) need to be based on facts that are known, or reasonably foreseeable, at the time of refusing the request, unlike under s.66H(1)(c).
[23] Clause 12.4 is also less beneficial than the NES in that it provides that the employer must determine the application but does not specify any time limitation on that determination. Under the NES right, an employer must give a response to the request within 21 days after the request is given to the employer. The award clause is less beneficial in this regard.
[24] Our provisional views, for the above reasons and based on the relevant reasoning and conclusions of the July 2021 decision, are:
(1) The Higher Education—General Staff Award clause is less beneficial overall than the residual right to casual conversion under the Act.
(2) Difficulty or uncertainty arises in relation to this clause because of the significantly different prescriptions in the award and the Act about the same subject matter.
(3) Clause 12.4 should be deleted from the Higher Education—General Staff Award and replaced with a reference to the NES casual conversion entitlements in order to satisfy the requirement in cl.48(3) of Schedule 1.
[25] The Sugar Industry Award 2020 (Sugar Award) does not contain the model conversion clause. Instead, it contains the following provisions which have been included in the award since it commenced operation on 1 January 2010:
“10.6 Casual conversion to full-time or part-time employment
(a) A casual employee, other than an irregular casual employee or a casual employee of a field sector or bulk sugar terminal employer, who has been engaged by a particular employer for a sequence of periods of employment under this award during a period of 6 months, thereafter has the right to elect to have their contract of employment converted to full-time or part-time employment if the employment is to continue beyond the conversion process.
(b) An employer of such an employee must give the employee notice in writing of the provisions of clause 10.6 within 4 weeks of the employee having attained such period of 6 months. The employee retains their right of election under clause 10.6 if the employer fails to comply with clause 10.6(b).
(c) Any such casual employee who does not within 4 weeks of receiving written notice elect to convert their contract of employment to full-time or part-time employment is deemed to have elected against any such conversion.
(d) Any casual employee who has a right to elect under clause 10.6(a), on receiving notice under clause 10.6(b) or after the expiry of the time for giving such notice, may give 4 weeks’ notice in writing to the employer that they seek to elect to convert their contract of employment to full-time or part-time employment, and within 4 weeks of receiving such notice the employer must consent to or refuse the election but must not unreasonably so refuse.
(e) Once a casual employee has elected to become and been converted to a full-time or part-time employee, the employee may only revert to casual employment by written agreement with the employer.
(f) If a casual employee has elected to have their contract of employment converted to full-time or part-time employment in accordance with clause 10.6(d), the employer and employee must, subject to clause 10.6(d), discuss and agree on:
(i) which form of employment the employee will convert to, being full-time or part-time; and
(ii) if it is agreed that the employee will become a part-time employee, the number of hours and the pattern of hours that will be worked, as set out in clause 9.
(g) An employee who has worked on a full-time basis throughout the period of casual employment has the right to elect to convert their contract of employment to full-time employment and an employee who has worked on a part-time basis during the period of casual employment has the right to elect to convert their contract of employment to part-time employment, on the basis of the same number of hours and times of work as previously worked, unless other arrangements are agreed on between the employer and employee.
(h) Following such agreement being reached, the employee converts to full-time or part-time employment.
(i) Where, in accordance with clause 10.6(d), an employer refuses an election to convert, the reasons for doing so must be fully stated to and discussed with the employee concerned and a genuine attempt made to reach agreement.
(j) By agreement between the employer and the majority of the employees in the relevant workplace or a section or sections of it, or with the casual employee concerned, the employer may apply clause 10.6(a) as if the reference to 6 months is a reference to 12 months, but only in respect of a currently engaged individual employee or group of employees. Any such agreement reached must be kept by the employer as a time and wages record. Any such agreement reached with an individual employee may only be reached within the 2 months prior to the period of 6 months referred to in clause 10.6(a).
(k) For the purposes of clause 10.6, an irregular casual employee is one who has been engaged to perform work on an occasional or non-systematic or irregular basis.
10.7 An employee must not be engaged and re-engaged to avoid any obligation under this award.”
[26] In the July 2021 decision, the Full Bench considered a similar provision in the Manufacturing Award. In relation to that award, the Full Bench found that the award clause was less beneficial than the residual right to conversion now provided for in the NES, that the clause conflicted with the NES residual right to convert, and the clause should be deleted and replaced with a reference to the NES casual conversion provisions.
[27] We adopt the reasoning from the July 2021 decision in relation to the Manufacturing Award and it is our provisional view that the term should be deleted from the Sugar Award and replaced with a reference to the NES casual conversion entitlements in order to satisfy the requirements of cl.48(3) of Schedule 1.
[28] The Wine Industry Award 2020 (Wine Award) does not contain the model conversion clause. Instead, it contains the following provisions which have been included in the award since it commenced operation on 1 January 2010:
“11.4 Casual conversion to full-time or part-time employment
(a) A casual employee, other than an irregular casual employee, who has been engaged by a particular employer for a sequence of periods of employment under this award during a period of 12 months, thereafter has the right to elect to have their contract of employment converted to full-time or part-time employment if the employment is to continue beyond the conversion process.
(b) Every employer of such an employee must give the employee notice in writing of the provisions of clause 11.4 within 4 weeks of the employee having attained such period of 12 months. The employee retains their right of election under clause 11.4 if the employer fails to comply with clause 11.4(b).
(c) Any such casual employee who does not within 4 weeks of receiving written notice elect to convert their contract of employment to full-time or part-time employment is deemed to have elected against any such conversion.
(d) Any casual employee who has a right to elect under clause 11.4(a), on receiving notice under clause 11.4(b) or after the expiry of the time for giving such notice, may give 4 weeks’ notice in writing to the employer that they seek to elect to convert their contract of employment to full-time or part-time employment, and within 4 weeks of receiving such notice the employer must consent to or refuse the election but must not unreasonably so refuse.
(e) Once a casual employee has elected to become and been converted to a full-time or part-time employee, the employee may only revert to casual employment by written agreement with the employer.
(f) If a casual employee has elected to have their contract of employment converted to full-time or part-time employment in accordance with clause 11.4(d), the employer and employee must, subject to clause 11.4(d), discuss and agree on:
(i) which form of employment the employee will convert to, being full-time or part-time; and
(ii) if it is agreed that the employee will become a part-time employee, the number of hours and the pattern of hours that will be worked, as set out in clause 10—Part-time employees.
(g) An employee who has worked on a full-time basis throughout the period of casual employment has the right to elect to convert their contract of employment to full-time employment and an employee who has worked on a part-time basis during the period of casual employment has the right to elect to convert their contract of employment to part-time employment, on the basis of the same number of hours and times of work as previously worked, unless other arrangements are agreed on between the employer and employee.
(h) Following such agreement being reached, the employee converts to full-time or part-time employment.
(i) Where, in accordance with clause 11.4(d) an employer refuses an election to convert, the reasons for doing so must be fully stated to and discussed with the employee concerned and a genuine attempt made to reach agreement.
(j) For the purposes of clause 11.4, an irregular casual employee is one who has been engaged to perform work on an occasional or non-systematic or irregular basis.
11.5 An employee must not be engaged and re-engaged to avoid any obligation under this award.”
[29] The Wine Award casual conversion clause is in substantially the same form as the Manufacturing Award. We adopt the reasoning from the July 2021 decision in relation to the Manufacturing Award and it is our provisional view that the term should be deleted from the Wine Award and replaced with a reference to the NES casual conversion entitlements in order to satisfy the requirement in cl.48(3) of Schedule 1.
[30] Clause 11.1 of this award contains the following definition of casual employment:
“11.1 Casual employee means an employee who is engaged for a period of less than 4 weeks and is notified on the first day of their employment.”
[31] This definition is a relevant term which is inconsistent with the definition of casual employment in s.15A of the Act and may cause interaction difficulty with it. However, embodied in the definition in the award is a limitation on the period for which casual employees may be retained (under 4 weeks), together with a requirement that the casual employee be notified of this on the first day of employment. Similar to the approach taken with respect to the Educational Services (Teachers) Award 2020 (Teachers Award) in the July 2021 decision, we consider that the temporal limitation on the use of casual employees may be retained provided it is separated from any definition of casual employment. 8 Our provisional view is therefore that:
(1) A new definition of ‘casual employee’ should be added to clause 2-Definitions of the award as follows: ‘casual employee has the meaning given by section 15A of the Act’.
(2) Clause 11.1 should be amended to provide:
“11.1 A casual employee means an employee who is must not be engaged for a period of less more than 4 weeks and is must be notified of this on the first day of their employment”
Sessional employment
[32] The Educational Services Post-Secondary Award provides for employees under the award to be employed in one of the following categories:
• full-time;
• part-time;
• casual; or
• sessional (see clause 8.1).
[33] Sessional employment is described at clause 11.7 (within the casual employees clause). Clause 11.7 provides:
“11.7 Sessional employment
Clause 11.7 applies only to teaching staff members.
(a) A sessional employee is an employee engaged to work on a full-time or parttime basis for a specified period or periods of not less than 4 weeks or not more than 40 weeks in any calendar year.
(b) A sessional employee receives, on a pro rata basis, pay and conditions equivalent to those of a full-time or part-time teacher with the same qualifications, experience and teaching load.
(c) On termination of a sessional engagement, an employee may elect to be paid out accrued annual leave entitlements or have the employer preserve them for use during a subsequent sessional engagement. Where the accrued leave is not taken within 12 months of it accruing, or the employee is not re-engaged within 8 weeks, the entitlement will be paid out. See also clause 22—Annual leave.
(d) Subject to the employee’s satisfactory conduct and performance, where an equivalent position exists at the expiry of the employee’s period of engagement, the employer will offer a further engagement to the employee.
(e) Where practicable, notice of re-engagement will be given at least 2 weeks prior to the expiry of the current engagement and the employee will give one week’s notice of acceptance to the employer.”
[34] When the award was first made, sessional employment was set out in its own clause separate to casual employment at clause 10.5. 9 In the first exposure draft10 published as part of the four yearly review of modern awards, sessional employment remained in a clause separate from casual employment. It was not until the publication of an exposure draft11 on 14 October 2019 that sessional employment appears within the casual clause. The notation for the changes to the types of employment clauses indicate changes to structure and title clauses were made in accordance with a decision of the Full Bench in the plain language project.12 We believe this may have been a drafting error, and it is our provisional view that sessional employment is not a type of casual employment, but rather a type of fixed-term full-time or part-time employment that bears no relationship to casual employment.
[35] It is therefore our provisional view that ‘sessional employment’ described in clause 11.7 of the Educational Services Post-Secondary Award is not a relevant term for the purpose of this review.
Deemed continuous service
[36] Clause 11.8 of the Educational Services Post-Secondary Award provides for ‘continuous service’ as follows:
“11.8 Continuous service
(a) Clause 11.8 applies only to teaching staff members.
(b) For the purposes of the NES:
(i) One or more engagements of a casual or sessional employee with an employer will be deemed to be continuous unless more than 8 weeks have elapsed between those engagements. The period between engagements will not count as service.
(ii) Where an interruption in service was caused by the employer with the intention of avoiding an obligation under this award, another industrial instrument or relevant legislation, the service will be deemed to be continuous.”
[37] Our provisional view is that:
(1) Clause 11.8, insofar as it refers to casual employees, is a relevant term for the purpose of the review because it defines or describes casual employment in respect of the continuity of employment.
(2) Clause 11.8 is, in relation to casual employees, inconsistent with the Act because it purports to specify matters relevant to the eligibility for NES entitlements applicable to casual employees in a manner that is different to the Act. Specifically, in relation to parental leave, it is inconsistent with the way in which s.67(2) prescribes the prerequisite for 12 months’ service in respect of casual employees.
(3) The provision should be made consistent with the Act by deleting the words ‘casual or’ from clause 11.8(b)(i).
Additional work
[38] The Higher Education Industry—Academic Staff—Award 2020 (Higher Education—Academic Award) provides at clause 8.3 as follows:
“8.3 Nothing in this award:
(a) prevents an employee from engaging in additional work as a casual employee in work unrelated to, or identifiably separate from, the employee’s normal duties; or”
[39] This clause in its current form makes it clear that an employee is allowed to undertake normal duties and, additionally, work as a casual employee in work unrelated to, or identifiably separate from, those normal duties. It is apparent, although not expressly stated, that the secondary work may be with the same employer.
[40] In the 11 August statement, we dealt with clause 20.3 of the Alpine Resorts Award 2020, which concerns ‘multi-hiring arrangements’. This clause allows an employer to offer a secondary role to an employee, but under the condition (in clause 20.3(c)(i)) that the secondary role is undertaken and paid for on a casual basis. We expressed the provisional view in relation to clause 20.3(c)(i) that it was inconsistent with the Act because it requires the secondary employment to be casual, regardless of whether it meets the definition of casual employment in s.15A of the Act. Clause 8.3(a) is different because it does not require the secondary employment to be casual; it merely provides that the award does not prevent secondary casual employment. Nothing in the clause requires the secondary employment to be treated as casual even though it does not accord with the s.15A definition. Accordingly, our provisional view is that clause 8.3(a) is not inconsistent with the Act and that no variation is required.
Casual conversion
[41] The Higher Education—Academic Award does not contain a casual conversion clause. The NES casual conversion provisions now apply to employers and employees covered by this award. There is no relevant provision in connection with casual conversion requiring consideration under clause 48 of Schedule 1. However, our provisional view is that the award should be varied pursuant to s.157(1) of the Act by adding a provision to refer to the NES casual conversion provisions. This will assist users of the award and achieve consistency across modern awards.
[42] The Higher Education—General Staff Award contains the following provision:
“8.3 Nothing in this award:
(a) prevents an employee from engaging in additional work as a casual employee in work unrelated to, or identifiably separate from, the employee’s normal duties; or”
[43] This clause is identical to that which appears in the Higher Education—Academic Award and our reasoning above applies. Our provisional view is that the clause is not inconsistent with the Act and no variation is required.
4.5 Labour Market Assistance Industry Award 2020
[44] The Labour Market Assistance Industry Award 2020 (Labour Market Award) provides that employees under this award can be employed in one of the following four categories;
• full-time;
• part-time;
• casual; or
• sessional (see clause 8.1).
[45] Clause 12 provides, in relation to sessional employment:
12.1 An employee may be engaged on a sessional basis to provide training sessions to clients.
12.2 A sessional employee will be engaged for a minimum of 2 consecutive hours in any one day.
12.3 A sessional employee will be paid the minimum casual hourly rate equivalent to the casual hourly rate of pay for an Employment services officer grade 1 Pay point 3.
12.4 In addition, a sessional employee will be paid for preparation and associated non-teaching/training tasks. This payment can be paid by either:
(a) incorporating a loading of 33.3% of the minimum hourly rate into the hourly rate, provided that this rate is separately expressed; or
(b) paying the employee one hour’s preparation/associated non-teaching/training tasks for every 3 hours’ teaching up to a maximum of 5 additional hours per week.
12.5 An employer who employs a sessional employee under the terms of clause 12.4(a) will not be obliged to pay the preparation loading in respect of any period involving staff training or staff meetings.
12.6 Upon engagement, in addition to the requirements specified for contracts of employment provided in clauses 8.1 and 8.2 of this award, the employer will provide written advice to the employee setting out the particular arrangements for preparation and associated non-teaching/training tasks which will apply in respect of the employee.
Cancellation provisions
12.7 If a training course is cancelled and the employer no longer requires the services of a sessional employee engaged for the course, the employer will provide the sessional employee with 2 weeks’ notice of termination or payment instead of notice equivalent to 2 weeks’ pay (inclusive of preparation loading or preparation time).”
[46] There is no definition of sessional employment in the Labour Market Award. Clause B.2 of Schedule B of the award is entitled ‘Casual employees’, and the rates for casual employees and sessional employees are set out immediately thereafter.
[47] It is unclear whether sessional employment under the Labour Market Award is intended to be a species of casual employment, or alternatively a form of fixed-term full-time or part-time employment. The award provisions do not permit any ready conclusion to be reached as to whether sessional employment would, or would not, meet the definition of casual employment in s.15A. The requirement for sessional employment to be paid casual rates of pay, inclusive of the casual loading, may suggest that it is intended that sessional employees not receive NES entitlements which do not apply to casual employees. If so, that will give rise to inconsistency with the Act if sessional employees are not casual employees as defined in the Act.
[48] We do not propose to express any provisional view about this. We will invite submissions from interested parties about this issue.
4.6 Seagoing Industry Award 2020
[49] The Seagoing Industry Award 2020 (Seagoing Award) contains no reference to ‘casual’ employees or to casual employment. However, while the award does not have a ‘casual’ employment term, it does provide for ‘relief employees’. Clauses 9, 10 and 11 of the Seagoing Award provide as follows:
“9. Types of employment
9.1 Employees under this award will be employed in one of the following categories:
(a) full-time employment; or
(b) relief employment.
9.2 At the time of engagement an employer will inform each employee of the terms of their engagement and, in particular, whether they are to be a full-time or relief employee.
10. Full-time employees
A full-time employee is engaged to work at least 38 ordinary hours per week, plus reasonable additional hours.
11. Relief employees
11.1 A relief employee is specifically engaged as a relief employee.
11.2 A relief employee receives, on a pro rata basis, equivalent pay and conditions to those of full-time employees.”
[50] It is our provisional view that ‘relief employees’ described in clause 11 of the Seagoing Award are a form of fixed-term full-time or part-time employment and are not casual employees. Accordingly, our provisional view is that clauses 9.1(b) and 11 are not relevant terms for the purpose of this review.
5. Next Steps
[51] Interested parties are to provide any responses in relation to the provisional views concerning the Group 3 awards set out above and in Attachment A to this Statement by 4PM (AEST) WEDNESDAY, 25 AUGUST 2021.
[52] Interested parties are to provide submissions in relation to the issue identified above concerning the Labour Market Award about which we have not expressed any provisional view by 4PM (AEST) WEDNESDAY, 25 AUGUST 2021.
VICE PRESIDENT
Printed by authority of the Commonwealth Government Printer
<PR732960>
1 Discussion Paper, 19 April 2021.
3 [2021] FWCFB 4714, at Attachment A.
6 [2019] FWCFB 2108 at [42]-[47].
7 [2019] FWCFB 2108 at [47].
8 [2021] FWCFB 4144 at [91]-[98].
10 Exposure draft – Educational Services (Post-Secondary Education) Award 2015, 18 December 2015.
11 Exposure draft – Educational Services (Post-Secondary Education) Award 20XX, 14 October 2019.
ATTACHMENT A
Banking, Finance and Insurance Award 2020 MA000019 | |||
Clause |
Provisional view |
Action |
Notes |
11.1—definition of casual employee |
‘Engaged as a casual’ definition – not consistent – relevant uncertainty or difficulty exists (see [69]-[70] of [2021] FWCFB 4144) Replace with reference to s.15A(1) to make consistent or operate effectively (see [105], [106], [110], [111] of [2021] FWCFB 4144) |
Delete the wording ‘A casual employee is engaged and paid as a casual employee.’ in clause 11.1. Insert new definition of ‘casual employee’ in clause 2—Definitions as follows: casual employee has the meaning given by section 15A of the Act. |
|
11.1(a)—ordinary hours |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty. (see [185] of [2021] FWCFB 4144) |
11.2—casual loading |
Not inconsistent (at [176] and [178] of [2021] FWCFB 4144) |
No variation necessary |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [178] |
11.3 & 20.1—overtime for casuals |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185] |
11.4—minimum engagement/payment |
Not inconsistent (at [163] of [2021] FWCFB 4144) |
No variation necessary |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [163] |
11.5—casual conversion |
Model clause – not consistent - less beneficial than NES - replace with reference to NES provision to make award consistent and operate effectively with Act – (see [197]-[202], [211] of [2021] FWCFB 4144) Add note about casual conversion disputes so award operates effectively (see [199], [212], [215] of [2021] FWCFB 4144). |
Delete clause 11.5 Insert new clause 11.5 as follows: 11.5 Offers and requests for casual conversion Offers and requests for conversion from casual employment to full-time or part-time employment are provided for in the NES. NOTE: Disputes about offers and requests for casual conversion under the NES are to be dealt with under clause 30—Dispute resolution. |
|
13.7(c), 13.7(d)—penalty rates for casuals |
General term- not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185] |
15.2—junior rates for casuals |
General term- not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty. (see [185] of [2021] FWCFB 4144) |
20.6(b)—casuals excluded from provision re rest period after overtime |
Not a relevant term |
No variation necessary |
|
Business Equipment Award 2020 MA000021 | |||
Clause |
Provisional view |
Action |
Notes |
9.2—definition of full-time employee – residual definition |
Not a relevant term |
No variation necessary |
|
11.1—definition of casual employee |
‘Engaged as a casual’ definition – not consistent – relevant uncertainty or difficulty exists (see [69]-[70] of [2021] FWCFB 4144) Replace with reference to s.15A(1) to make consistent or operate effectively (see [105], [106], [110], [111] of [2021] FWCFB 4144) |
Delete clause 11.1 Insert new definition of ‘casual employee’ in clause 2—Definitions as follows: casual employee has the meaning given by section 15A of the Act. |
|
11.2—terminated by hour’s notice |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty. (see [185] of [2021] FWCFB 4144) |
11.3—casual loading |
Not inconsistent (at [176] and [178] of [2021] FWCFB 4144) |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [178] |
|
11.4 & 20.1(b)—overtime |
General term- not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185] |
11.5—minimum engagement |
Not inconsistent (at [163] of [2021] FWCFB 4144) |
No variation necessary |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [163] |
11.6—casual conversion |
Model clause – not consistent - less beneficial than NES - replace with reference to NES provisions to make award consistent and operate effectively with Act – (see [197]-[202], [211] of [2021] FWCFB 4144) Add note about casual conversion disputes so award operates effectively (see [199], [212], [215] of [2021] FWCFB 4144). |
Delete clause 11.6 Insert new clause 11.6 as follows: 11.6 Offers and requests for casual conversion Offers and requests for conversion from casual employment to full-time or part-time employment are provided for in the NES. NOTE: Disputes about offers and requests for casual conversion under the NES are to be dealt with under clause 31—Dispute resolution. |
|
12.7, 21 & 22—special provisions for dayworkers/shiftworkers |
General term- not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185] |
18.7—accident pay for casuals |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty. (see [185] of [2021] FWCFB 4144) |
20.6(b)—casuals excluded from provision re rest period after overtime |
Not a relevant term |
No variation necessary |
|
24.2—unpaid personal/carer’s leave for casuals |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty. (see [185] of [2021] FWCFB 4144) |
Clerks - Private Sector Award 2020 MA000002 | |||
Clause |
Provisional view |
Action |
Notes |
11.1—definition of casual employee |
‘Engaged as a casual’ definition – not consistent – relevant uncertainty or difficulty exists (see [69]-[70] of [2021] FWCFB 4144) Replace with reference to s.15A(1) to make consistent or operate effectively (see [105], [106], [110], [111] of [2021] FWCFB 4144) |
Delete clause 11.1. Insert new definition of ‘casual employee’ in clause 2—Definitions as follows: casual employee has the meaning given by section 15A of the Act. |
|
11.2 and note—casual loading |
Not inconsistent (at [176] and [178] of [2021] FWCFB 4144) |
No variation necessary |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [178] |
11.3, 21.4 and 28.1—overtime for casuals |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185] |
11.4—casual pay period |
Not inconsistent (at [163] of [2021] FWCFB 4144) |
No variation necessary. |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [163] |
11.5—minimum payment |
Not inconsistent (at [163] of [2021] FWCFB 4144) |
No variation necessary. |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [163] |
11.6—casual conversion |
Model clause – not consistent - less beneficial than NES - replace with reference to NES provisions to make award consistent and operate effectively with Act – (see [197]-[202], [211] of [2021] FWCFB 4144) Add note about casual conversion disputes so award operates effectively (see [199], [212], [215] of [2021] FWCFB 4144). |
Delete clause 11.6. Insert new clause 11.6 as follows: 11.6 Offers and requests for casual conversion Offers and requests for conversion from casual employment to full-time or part-time employment are provided for in the NES. NOTE: Disputes about offers and requests for casual conversion under the NES are to be dealt with under clause 40—Dispute resolution. |
|
19.4(d)(ii)—clothing and footwear allowance |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty. (see [185] of [2021] FWCFB 4144) |
33—unpaid leave for casuals |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty. (see [185] of [2021] FWCFB 4144) |
Coal Export Terminals Award 2020 MA000045 | |||
Clause |
Provisional view |
Action |
Notes |
2—definition of ‘casual hourly rate’ |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty. (see [185] of [2021] FWCFB 4144) |
11.1—definition of casual employee |
‘Engaged as a casual’ definition – not consistent – relevant uncertainty or difficulty exists (see [69]-[70] of [2021] FWCFB 4144) Replace with reference to s.15A(1) to make consistent or operate effectively (see [105], [106], [110], [111] of [2021] FWCFB 4144) |
Delete clause 11.1. Insert new definition of ‘casual employee’ in clause 2—Definitions as follows: casual employee has the meaning given by section 15A of the Act. |
|
11.2—ordinary hours |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty. (see [185] of [2021] FWCFB 4144) |
11.3, 11.4 and 11.5—casual loading |
Not inconsistent (at [176] and [178] of [2021] FWCFB 4144) |
No variation necessary |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [178] |
11.6 and 19.1—overtime for casuals |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185] |
11.7—minimum payment |
Not inconsistent (at [163] of [2021] FWCFB 4144) |
No variation necessary |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [163] |
11.8—casual conversion |
Model clause – not consistent - less beneficial than NES - replace with reference to NES provisions to make award consistent and operate effectively with Act – (see [197]-[202], [211] of [2021] FWCFB 4144) Add note about casual conversion disputes so award operates effectively (see [199], [212], [215] of [2021] FWCFB 4144). |
Delete clause 11.8. Insert new clause 11.8 as follows: 11.8 Offers and requests for casual conversion Offers and requests for conversion from casual employment to full-time or part-time employment are provided for in the NES. NOTE: Disputes about offers and requests for casual conversion under the NES are to be dealt with under clause 28—Dispute resolution. |
|
15.3(f)—regular and systematic employee |
Definition of ‘regular and systematic casual employee’ is a relevant term – proposed to update terms - (at [142], [147] and [149] of [2021] FWCFB 4144) |
Delete the term ‘regular and systematic casual employee’ in 15.3(f) and replace with ‘regular casual employee’ Insert new definition in clause 2: regular casual employee has the meaning given by section 12 of the Act. |
|
17.4(b)—licence reimbursement |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty. (see [185] of [2021] FWCFB 4144) |
19.5—rest period after working overtime |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty. (see [185] of [2021] FWCFB 4144) |
Commercial Sales Award 2020 MA000083 | |||
Clause |
Provisional view |
Action |
Notes |
9.2—definition of full-time employee – residual definition |
Not a relevant term |
No variation necessary |
|
11.1—definition of casual employee |
‘Engaged as a casual’ definition – not consistent – relevant uncertainty or difficulty exists (see [69]-[70] of [2021] FWCFB 4144) Replace with reference to s.15A(1) to make consistent or operate effectively (see [105], [106], [110], [111] of [2021] FWCFB 4144) |
Delete clause 11.1. Insert new definition of ‘casual employee’ in clause 2—Definitions as follows: casual employee has the meaning given by section 15A of the Act. |
|
11.2—casual loading |
Not inconsistent (at [176] and [178] of [2021] FWCFB 4144) |
No variation necessary |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [178] |
11.3 and 19.2—overtime for casuals |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185] |
11.4—minimum payment |
Not inconsistent (at [163] of [2021] FWCFB 4144) |
No variation necessary |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [163] |
11.5—casual conversion |
Model clause – not consistent - less beneficial than NES - replace with reference to NES provisions to make award consistent and operate effectively with Act – (see [197]-[202], [211] of [2021] FWCFB 4144) Add note about casual conversion disputes so award operates effectively (see [199], [212], [215] of [2021] FWCFB 4144). |
Delete clause 11.5. Insert new clause 11.5 as follows: 11.5 Offers and requests for casual conversion Offers and requests for conversion from casual employment to full-time or part-time employment are provided for in the NES. NOTE: Disputes about offers and requests for casual conversion under the NES are to be dealt with under clause 28—Dispute resolution. |
|
17.2(h)—casuals excluded from change of residence provision |
Not a relevant term |
No variation necessary |
|
20.2—casuals excluded from annual leave |
Not a relevant term |
No variation necessary |
|
Contract Call Centres Award 2020 MA000023 | |||
Clause |
Provisional view |
Action |
Notes |
9.2—definition of full-time employee – residual definition |
Not a relevant term |
No variation necessary |
|
11.1—definition of casual employee |
‘Engaged as a casual’ definition – not consistent – relevant uncertainty or difficulty exists (see [69]-[70] of [2021] FWCFB 4144) Replace with reference to s.15A(1) to make consistent or operate effectively (see [105], [106], [110], [111] of [2021] FWCFB 4144) |
Delete clause 11.1. Insert new definition of ‘casual employee’ in clause 2—Definitions as follows: casual employee has the meaning given by section 15A of the Act. |
|
11.2—termination of casual employment |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty. (see [185] of [2021] FWCFB 4144) |
11.3—minimum payment |
Not inconsistent (at [163] of [2021] FWCFB 4144) |
No variation necessary |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [163] |
11.4—re-engaging casuals |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty. (see [185] of [2021] FWCFB 4144) |
11.5—casual loading |
Not inconsistent (at [176] and [178] of [2021] FWCFB 4144) |
No variation necessary |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [178] |
11.6 and 20.1—overtime for casuals |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185] |
11.7—casual conversion |
Model clause – not consistent - less beneficial than NES - replace with reference to NES provisions to make award consistent and operate effectively with Act– (see [197]-[202], [211] of [2021] FWCFB 4144) Add note about casual conversion disputes so award operates effectively (see [199], [212], [215] of [2021] FWCFB 4144). |
Delete clause 11.7. Insert new clause 11.7 as follows: 11.7 Offers and requests for casual conversion Offers and requests for conversion from casual employment to full-time or part-time employment are provided for in the NES. NOTE: Disputes about offers and requests for casual conversion under the NES are to be dealt with under clause 30—Dispute resolution. |
Model clause – not consistent - less beneficial than NES - replace with NES provision to make awards consistent and operate effectively – (see [197]-[202], [211] of [2021] FWCFB 4144) Add note about casual conversion disputes so award operates effectively (see [199], [212], [215] of [2021] FWCFB 4144). |
Dredging Industry Award 2020 MA000085 | |||
Clause |
Provisional view |
Action |
Notes |
7.2—facilitative provisions (casual employment—payment of wages) |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty. (see [185] of [2021] FWCFB 4144) |
8.2—requirement to inform at engagement (general) |
Not inconsistent (at [120]-[121] of [2021] FWCFB 4144) |
No variation necessary |
|
11.1—definition of casual employee |
Relevant terms and may cause interaction difficulty because expressed in a definitional way. Remove definitional element but retain substantive temporal limitation on casual employment similar to the maximum term of employment in the Teachers Award and dealt with at [91]-[98] of [2021] FWCFB 4144) |
Insert new definition of ‘casual employee’ in clause 2—Definitions as follows: casual employee has the meaning given by section 15A of the Act. Amend clause 11.1 as follows: 11.1 A casual employee |
|
11.2—casual loading |
Not inconsistent (at [176] and [178] of [2021] FWCFB 4144) |
No variation necessary |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [178] |
11.3—casual pay periods |
Not inconsistent (at [163] of [2021] FWCFB 4144) |
No variation necessary |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [163] |
11.4—minimum payment |
Not inconsistent (at [163] of [2021] FWCFB 4144) |
No variation necessary |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [163] |
11.5—casual conversion |
Model clause – not consistent - less beneficial than NES – delete clause – no reference to NES provision necessary because of temporal limitation on use of casual employment in clause 11.1. |
Delete clause 11.5. |
|
19.2—casual loading not paid for overtime |
Not inconsistent (at [176] and [178] of [2021] FWCFB 4144) |
No variation necessary |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [178] |
31.2—casuals excluded from redundancy provisions |
Not a relevant term |
No variation necessary |
|
Educational Services (Post-Secondary Education) Award 2020 MA000075 | |||
Clause |
Provisional view |
Action |
Notes |
8.2—casuals excluded from letter of employment |
Not a relevant term |
No variation necessary |
|
11.1—definition of casual employee |
‘Paid by hour’ definition - not consistent (see [81]-[84] of [2021] FWCFB 4144) Replace with reference to s.15A(1) to make consistent or operate effectively (see [105], [106], [110], [111] of [2021] FWCFB 4144) |
Delete clause 11.1. Insert new definition of ‘casual employee’ in clause 2—Definitions as follows: casual employee has the meaning given by section 15A of the Act. |
|
11.2, 15.1(b), 15.1(c), 15.2(a), 15.2(b) and A.6—casual rates |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185] |
11.3, 15.2(c), 19.1(c), 19.3(a), 19.3(b) and 19.6(c)—overtime for casuals |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185] |
11.4—casual pay period |
Not inconsistent (at [163] of [2021] FWCFB 4144) |
No variation necessary. |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [163] |
11.5—teachers and tutor/instructors—minimum payment |
Not inconsistent (at [163] of [2021] FWCFB 4144) |
No variation necessary |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [163] |
11.6—general staff—minimum payment |
Not inconsistent (at [163] of [2021] FWCFB 4144) |
No variation necessary |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [163] |
11.7 (and 8.1(d) and 8.2)—sessional employment |
Not a relevant term. |
No variation necessary |
|
11.8—teaching staff—deemed continuous service |
Inconsistent with the Act. |
Amend clause 11.8(b)(i) to provide: (i) One or more engagements of a |
|
11.9—non-teaching staff—casual conversion |
Model clause – not consistent - less beneficial than NES - replace with reference to NES provisions to make award consistent and operate effectively with Act – (see [197]-[202], [211] of [2021] FWCFB 4144) Add note about casual conversion disputes so award operates effectively (see [199], [212], [215] of [2021] FWCFB 4144). |
Delete clause 11.9. Insert new clause 11.9 as follows: 11.9 Offers and requests for casual conversion Offers and requests for conversion from casual employment to full-time or part-time employment are provided for in the NES. NOTE: Disputes about offers and requests for casual conversion under the NES are to be dealt with under clause 30—Dispute resolution. |
Model clause – not consistent - less beneficial than NES - replace with NES provision to make awards consistent and operate effectively – (see [197]-[202], [211] of [2021] FWCFB 4144) Add note about casual conversion disputes so award operates effectively (see [199], [212], [215] of [2021] FWCFB 4144). |
11.10—teaching staff—casual conversion |
Less beneficial than the NES and not consistent – conversion to sessional employment may occur under NES provisions – delete provision and replace with reference to NES provisions. |
Delete clause 11.10. See above. |
|
19.3(c)—penalty rates for casuals |
General term- not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185] |
19.6(c)—rest periods after overtime |
General term- not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185] |
20.2—shiftwork for casuals |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185] |
31.2—notice of termination—casuals excluded |
Not a relevant term |
||
A.6—minimum salary—casual academic teachers |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185] |
A.7—casual academic teachers excluded from classification levels |
Not a relevant term |
No variation necessary |
|
B.2.3, B.3.2, B.3.3, B.4.2 and B.4.3—period of casual employment equivalent to full-time employment for the purpose of determining experience levels relevant to classification |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
|
Educational Services (Schools) General Staff Award 2020 MA000076 | |||
Clause |
Provisional view |
Action |
Notes |
8.2—requirement to inform at engagement (general) |
Not inconsistent (at [120]-[121] of [2021] FWCFB 4144) |
No variation necessary |
|
11.1—definition of casual employee |
‘Engaged as a casual’ definition – not consistent – relevant uncertainty or difficulty exists (see [69]-[70] of [2021] FWCFB 4144) Replace with reference to s.15A(1) to make consistent or operate effectively (see [105], [106], [110], [111] of [2021] FWCFB 4144) |
Delete clause 11.1. Insert new definition of ‘casual employee’ in clause 2—Definitions as follows: casual employee has the meaning given by section 15A of the Act. |
|
11.2—casual loading |
Not inconsistent (at [176] and [178] of [2021] FWCFB 4144) |
No variation necessary |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [178] |
11.3 and 21.2—overtime for casuals |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185] |
11.4—casual pay period |
Not inconsistent (at [163] of [2021] FWCFB 4144) |
No variation necessary |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [163] |
11.5—minimum engagement |
Not inconsistent (at [163] of [2021] FWCFB 4144) |
No variation necessary |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [163] |
11.6—casual conversion |
Model clause – not consistent - less beneficial than NES - replace with reference to NES provisions to make award consistent and operate effectively with Act – (see [197]-[202], [211] of [2021] FWCFB 4144) Add note about casual conversion disputes so award operates effectively (see [199], [212], [215] of [2021] FWCFB 4144). |
Delete clause 11.6. Insert new clause 11.6 as follows: 11.6 Offers and requests for casual conversion Offers and requests for conversion from casual employment to full-time or part-time employment are provided for in the NES. NOTE: Disputes about offers and requests for casual conversion under the NES are to be dealt with under clause 31—Dispute resolution. |
|
12.1(c)—employees who would otherwise be on LWOP during non-term weeks may be offered casual employment |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty. (see [185] of [2021] FWCFB 4144) |
14.3—ordinary hours of work for casuals |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty. (see [185] of [2021] FWCFB 4144) |
15.2(d)(ii)—casuals excluded from broken shifts |
Not a relevant term |
No variation necessary |
|
17.4(e)(ii)—regular and systematic employee |
Definition of ‘regular and systematic casual employee’ are relevant terms – proposed to update terms - (at [142], [147] and [149] of [2021] FWCFB 4144) |
Delete the term ‘regular and systematic casual employee’ in 17.4(e)(ii) and replace with ‘regular casual employee’. Insert new definition in clause 2: regular casual employee has the meaning given by section 12 of the Act. |
|
22.4—casuals excluded from broken shifts |
Not a relevant term |
No variation necessary |
|
Electrical Power Industry Award 2020 MA000088 | |||
Clause |
Provisional view |
Action |
Notes |
8.2—requirement to inform at engagement (general) |
Not inconsistent (at [120]-[121] of [2021] FWCFB 4144) |
No variation necessary |
|
10.4—definition of casual employee |
‘Residual category’ definition - possible interaction difficulties or uncertainty because of differently-expressed casual definitions (see [76]-[77] of [2021] FWCFB 4144) Replace with reference to s.15A(1) to make consistent or operate effectively (see [105], [106], [110], [111] of [2021] FWCFB 4144) |
Delete clause 10.4. Insert new definition of ‘casual employee’ in clause 2—Definitions as follows: casual employee has the meaning given by section 15A of the Act. |
|
11.1—definition of casual employee |
‘Engaged as a casual’ definition – not consistent – relevant uncertainty or difficulty exists (see [69]-[70] of [2021] FWCFB 4144) Replace with reference to s.15A(1) to make consistent or operate effectively (see [105], [106], [110], [111] of [2021] FWCFB 4144) |
Delete clause 11.1. |
|
11.2—minimum engagement |
Not inconsistent (at [163] of [2021] FWCFB 4144) |
No variation necessary |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [163] |
11.3(a), 11.3(b), 11.4 and 19.6(h)—casual loading |
Not inconsistent (at [176] and [178] of [2021] FWCFB 4144) |
No variation necessary |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [178] |
11.3(c)—allowances for casuals |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty. (see [185] of [2021] FWCFB 4144) |
11.5—penalty rates for casuals |
General term- not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185] |
11.6 and 19.4—overtime for casuals |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185] |
11.7—casual conversion |
Model clause – not consistent - less beneficial than NES - replace with reference to NES provisions to make award consistent and operate effectively with Act – (see [197]-[202], [211] of [2021] FWCFB 4144) Add note about casual conversion disputes so award operates effectively (see [199], [212], [215] of [2021] FWCFB 4144). |
Delete clause 11.7. Insert new clause 11.7 as follows: 11..7 Offers and requests for casual conversion Offers and requests for conversion from casual employment to full-time or part-time employment are provided for in the NES. NOTE: Disputes about offers and requests for casual conversion under the NES are to be dealt with under clause 29—Dispute resolution. |
|
14.7—casuals excluded from conditions applicable when employee does not receive 10 hour rest |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty. (see [185] of [2021] FWCFB 4144) |
30.9—only casuals with 6 months or more of service counted for purposes of determining number of employee representatives entitled to undertake dispute resolution training |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty. (see [185] of [2021] FWCFB 4144) |
B.2—Summary of hourly rates |
General term - not inconsistent ([179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
|
Fitness Industry Award 2020 MA000094 | |||
Clause |
Provisional view |
Action |
Notes |
11.5—definition of casual employee |
‘Residual category’ definition - possible interaction difficulties or uncertainty because of differently-expressed casual definitions (see [76]-[77] of [2021] FWCFB 4144) Replace with reference to s.15A(1) to make consistent or operate effectively (see [105], [106], [110], [111] of [2021] FWCFB 4144) |
Delete clause 11.5 Insert new definition of ‘casual employee’ in clause 2—Definitions as follows: casual employee has the meaning given by section 15A of the Act. |
|
12.1—definition of casual employee |
‘Engaged as a casual’ definition – not consistent – relevant uncertainty or difficulty exists (see [69]-[70] of [2021] FWCFB 4144) Replace with reference to s.15A(1) to make consistent or operate effectively (see [105], [106], [110], [111] of [2021] FWCFB 4144) |
Delete clause 12.1. |
|
12.2(a)—casual loading |
Not inconsistent (at [176] and [178] of [2021] FWCFB 4144) |
No variation necessary |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [178] |
12.2(b), 20.3 and 25.3(b)—penalty rates for casuals |
General term- not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185] |
12.3—overtime for casuals |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185] |
12.4—minimum engagement and payment |
Not inconsistent (at [163] of [2021] FWCFB 4144) |
No variation necessary |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [163] |
12.5—casual conversion |
Model clause – not consistent - less beneficial than NES - replace with reference to NES provisions to make award consistent and operate effectively with Act – (see [197]-[202], [211] of [2021] FWCFB 4144) Add note about casual conversion disputes so award operates effectively (see [199], [212], [215] of [2021] FWCFB 4144). |
Delete clause 12.5 Insert new clause 12.5 as follows: 12.5 Offers and requests for casual conversion Offers and requests for conversion from casual employment to full-time or part-time employment are provided for in the NES. NOTE: Disputes about offers and requests for casual conversion under the NES are to be dealt with under clause 28—Dispute resolution. |
|
14.2(b)—no paid rest break for casual working 3 hours or less per shift |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty. (see [185] of [2021] FWCFB 4144) |
B.2—Summary of hourly rates |
General term - not inconsistent ([179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
|
Gardening and Landscaping Services Award 2020 MA000101 | |||
Clause |
Provisional view |
Action |
Notes |
8.2—requirement to inform at engagement (general) |
Not inconsistent (at [120]-[121] of [2021] FWCFB 4144) |
No variation necessary |
|
11.1—definition of casual employee |
‘Engaged as a casual’ definition – not consistent – relevant uncertainty or difficulty exists (see [69]-[70] of [2021] FWCFB 4144) Replace with reference to s.15A(1) to make consistent or operate effectively (see [105], [106], [110], [111] of [2021] FWCFB 4144) |
Delete clause 11.1. Insert new definition of ‘casual employee’ in clause 2—Definitions as follows: casual employee has the meaning given by section 15A of the Act. |
|
11.2—minimum engagement |
Not inconsistent (at [163] of [2021] FWCFB 4144) |
No variation necessary |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [163] |
11.3—casual loading |
Not inconsistent (at [176] and [178] of [2021] FWCFB 4144) |
No variation necessary |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [178] |
11.4 and 19.2—overtime for casuals |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185] |
11.5—casual conversion |
Model clause – not consistent - less beneficial than NES - replace with reference to NES provisions to make award consistent and operate effectively with Act – (see [197]-[202], [211] of [2021] FWCFB 4144) Add note about casual conversion disputes so award operates effectively (see [199], [212], [215] of [2021] FWCFB 4144). |
Delete clause 11.5. Insert new clause 11.5 as follows: 11.5 Offers and requests for casual conversion Offers and requests for conversion from casual employment to full-time or part-time employment are provided for in the NES. NOTE: Disputes about offers and requests for casual conversion under the NES are to be dealt with under clause 28—Dispute resolution. |
|
15.4(b)— regular and systematic employee |
Definitions of ‘long term casual employee’ and ‘regular and systematic casual employee’ are relevant terms – proposed to update terms - (at [142], [147] and [149] of [2021] FWCFB 4144) (Delete ‘long term casual’ words if not in award) |
Delete the term ‘regular and systematic casual employee’ in XX.X and replace with ‘regular casual employee’ Insert new definition in clause 2: regular casual employee has the meaning given by section 12 of the Act. |
|
19.4(b)—casuals excluded from rest period after overtime duty |
Not a relevant term |
No variation necessary |
|
B.3, B.4.3—summary of hourly rates |
General term - not inconsistent ([179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
|
Higher Education Industry-Academic Staff-Award 2020 MA000006 | |||
Clause |
Provisional view |
Action |
Notes |
8.2(c)— requirement to inform at engagement (hours of work) |
Includes a requirement to inform at engagement of the hours of work / likely number of hours at clause 8.2(c). Such provisions not directly inconsistent but give rise to difficulty relating to interaction between award clause and casual definition in Act [124] Provisions not necessary to achieve modern awards objective (at [126] of [2021] FWCFB 4144) |
Amend clause 8.2(c): (c) for casual employees, the duties required |
|
8.3(a)—nothing prevents engaging in additional work as a casual |
Not inconsistent with Act |
No variation necessary |
|
12.1—definition of casual employee |
‘Paid by hour’ definition - not consistent (see [81]-[84] of [2021] FWCFB 4144) Replace with reference to s.15A(1) to make consistent or operate effectively (see [105], [106], [110], [111] of [2021] FWCFB 4144) |
Delete clause 12.1. Insert new definition of ‘casual employee’ in clause X—Definitions as follows: casual employee has the meaning given by section 15A of the Act. |
|
12.2—casual loading |
Not inconsistent (at [176] and [178] of [2021] FWCFB 4144) |
No variation necessary |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [178] |
12.3—minimum engagement |
Not inconsistent (at [163] of [2021] FWCFB 4144) |
No variation necessary |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [163] |
14.1—casuals excluded from minimum standards for levels of academic staff |
Not a relevant term |
No variation necessary |
|
16.4—rates of pay for casual employees |
Not inconsistent (at [163] of [2021] FWCFB 4144) |
No variation necessary |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [163] |
17.2—pay cycles for casuals |
Not inconsistent (at [163] of [2021] FWCFB 4144) |
No variation necessary |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [163] |
20.1—casuals excluded from annual leave provisions |
Not a relevant term |
No variation necessary |
|
21.3—Personal/carer’s leave and compassionate leave for casuals |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty. (see [185] of [2021] FWCFB 4144) |
Higher Education Industry-General Staff-Award 2020 MA000007 | |||
Clause |
Provisional view |
Action |
Notes |
8.2(a)—casuals excluded from the requirement to state hours, classification and salary |
Not a relevant term |
No variation necessary |
|
8.2(d)—requirement to stipulate number of hours etc |
Includes a requirement to inform at engagement of the hours of work / likely number of hours at clause 8.2(d). Such provisions not directly inconsistent but give rise to difficulty relating to interaction between award clause and casual definition in Act [124] |
Amend clause 8.2(d) as follows: (d) for casual employees, the duties required, rate of pay for each class of duty required and a statement that any additional duties required during the term will be paid for |
|
8.3— nothing prevents engaging in additional work as a casual |
Not inconsistent with Act |
No variation necessary |
|
12.1—definition of casual employee |
‘Paid by hour’ definition - not consistent (see [81]-[84] of [2021] FWCFB 4144) Replace with reference to s.15A(1) to make consistent or operate effectively (see [105], [106], [110], [111] of [2021] FWCFB 4144) |
Delete clause 12.1. Insert new definition of ‘casual employee’ in clause 2—Definitions as follows: casual employee has the meaning given by section 15A of the Act. |
|
12.2—casual loading |
Not inconsistent (at [176] and [178] of [2021] FWCFB 4144) |
No variation necessary |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [178] |
12.3—minimum period of engagement |
Not inconsistent (at [163] of [2021] FWCFB 4144) |
No variation necessary |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [163] |
12.4—casual conversion |
Less beneficial than NES provisions – gives rise to interaction difficulty - replace award clause with reference to the NES provisions |
Delete clause 12.4 Insert new clause 12.4 as follows: 12.4 Offers and requests for casual conversion Offers and requests for conversion from casual employment to full-time or part-time employment are provided for in the NES. NOTE: Disputes about offers and requests for casual conversion under the NES are to be dealt with under clause 32—Dispute resolution. |
|
22.2—casual loading not payable on overtime |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty. (see [185] of [2021] FWCFB 4144) |
24.4(iv)—seasonal stand down of residential colleges |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty. (see [185] of [2021] FWCFB 4144) |
B.2—Summary of hourly rates |
General term - not inconsistent ([179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
|
Horticulture Award 2020 MA000028 | |||
Clause |
Provisional view |
Action |
Notes |
8.2—requirement to inform at engagement (general) |
Not inconsistent (at [120]-[121] of [2021] FWCFB 4144) |
No variation necessary |
|
11.1—definition of casual employee |
‘Engaged as a casual’ definition – not consistent – relevant uncertainty or difficulty exists (see [69]-[70] of [2021] FWCFB 4144) Replace with reference to s.15A(1) to make consistent or operate effectively (see [105], [106], [110], [111] of [2021] FWCFB 4144) |
Delete clause 11.1. Insert new definition of ‘casual employee’ in clause 2—Definitions as follows: casual employee has the meaning given by section 15A of the Act. |
|
11.2 and 13.2—ordinary hours |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty. (see [185] of [2021] FWCFB 4144) |
11.3—casual loading |
Not inconsistent (at [176] and [178] of [2021] FWCFB 4144) |
No variation necessary |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [178] |
11.4—minimum payment |
Not inconsistent (at [163] of [2021] FWCFB 4144) |
No variation necessary |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [163] |
11.5—casual conversion |
Model clause – not consistent - less beneficial than NES - replace with reference to NES provisions to make award consistent and operate effectively with Act – (see [197]-[202], [211] of [2021] FWCFB 4144) Add note about casual conversion disputes so award operates effectively (see [199], [212], [215] of [2021] FWCFB 4144). |
Delete clause 11.5. Insert new clause 11.5 as follows: 11.5 Offers and requests for casual conversion Offers and requests for conversion from casual employment to full-time or part-time employment are provided for in the NES. NOTE: Disputes about offers and requests for casual conversion under the NES are to be dealt with under clause 30—Dispute resolution. |
|
15.2—pieceworker rates |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty. (see [185] of [2021] FWCFB 4144) |
17.1(a)(vi)—Annualised wage arrangements |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty. (see [185] of [2021] FWCFB 4144) |
19.8—accident pay for casuals |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty. (see [185] of [2021] FWCFB 4144) |
21.4—overtime for casuals |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185] |
22.1—casuals excluded from annual leave provisions |
Not a relevant term |
No variation necessary |
|
27.4—public holiday rates for casuals |
General term- not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185] |
B.3, B.4.3 and B.4.4—summary of hourly rates |
General term - not inconsistent ([179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
|
Labour Market Assistance Industry Award 2020 MA000099 | |||
Clause |
Provisional view |
Action |
Notes |
8.2—casuals excluded from requirement to inform at engagement |
Not a relevant term |
No variation necessary |
|
11.1—definition of casual employee |
‘Residual category’ definition - possible interaction difficulties or uncertainty because of differently-expressed casual definitions (see [76]-[77] of [2021] FWCFB 4144) ‘Paid by hour’ definition - not consistent (see [81]-[84] of [2021] FWCFB 4144) Replace with reference to s.15A(1) to make consistent or operate effectively (see [105], [106], [110], [111] of [2021] FWCFB 4144) |
Delete clause 11.1. Insert new definition of ‘casual employee’ in clause 2—Definitions as follows: casual employee has the meaning given by section 15A of the Act. |
|
11.2—minimum payment |
Not inconsistent (at [163] of [2021] FWCFB 4144) |
No variation necessary |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [163] |
11.3—casual loading |
Not inconsistent (at [176] and [178] of [2021] FWCFB 4144) |
No variation necessary |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [178] |
11.4, 21.1(d), 21.3 and 21.6—overtime for casuals |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185] |
11.5—penalty rates for casuals |
General term- not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185] |
11.6—casual conversion |
Model clause – not consistent - less beneficial than NES - replace with reference to NES provisions to make award consistent and operate effectively with Act – (see [197]-[202], [211] of [2021] FWCFB 4144) Add note about casual conversion disputes so award operates effectively (see [199], [212], [215] of [2021] FWCFB 4144). |
Delete clause 11.6. Insert new clause 11.6 as follows: 11.6 Offers and requests for casual conversion Offers and requests for conversion from casual employment to full-time or part-time employment are provided for in the NES. NOTE: Disputes about offers and requests for casual conversion under the NES are to be dealt with under clause XX—Dispute resolution. |
Model clause – not consistent - less beneficial than NES - replace with NES provision to make awards consistent and operate effectively – (see [197]-[202], [211] of [2021] FWCFB 4144) Add note about casual conversion disputes so award operates effectively (see [199], [212], [215] of [2021] FWCFB 4144). |
12.2—sessional employees |
No provisional view |
Further submissions invited. |
|
19.7—accident pay for casuals |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty. (see [185] of [2021] FWCFB 4144) |
B.2—summary of hourly rates |
General term - not inconsistent ([179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
|
Legal Services Award 2020 MA000116 | |||
Clause |
Provisional view |
Action |
Notes |
8.2—requirement to inform at engagement (general) |
Not inconsistent (at [120]-[121] of [2021] FWCFB 4144) |
No variation necessary |
|
11.1—definition of casual employee |
‘Engaged as a casual’ definition – not consistent – relevant uncertainty or difficulty exists (see [69]-[70] of [2021] FWCFB 4144) Replace with reference to s.15A(1) to make consistent or operate effectively (see [105], [106], [110], [111] of [2021] FWCFB 4144) |
Delete clause 11.1. Insert new definition of ‘casual employee’ in clause 2—Definitions as follows: casual employee has the meaning given by section 15A of the Act. |
‘Engaged as a casual’ definition – not consistent – relevant uncertainty or difficulty exists (see [69]-[70] of [2021] FWCFB 4144) Replace with reference to s.15A(1) to make consistent or operate effectively (see [105], [106], [110], [111] of [2021] FWCFB 4144) |
11.2—casual loading |
Not inconsistent (at [176] and [178] of [2021] FWCFB 4144) |
No variation necessary |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [178] |
11.3, 20.2 and 20.6(b)—overtime for casuals |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185] |
11.4—minimum payment |
Not inconsistent (at [163] of [2021] FWCFB 4144) |
No variation necessary |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [163] |
11.5—casual conversion |
Model clause – not consistent - less beneficial than NES - replace with reference to NES provision to make award consistent and operate effectively with Act – (see [197]-[202], [211] of [2021] FWCFB 4144) Add note about casual conversion disputes so award operates effectively (see [199], [212], [215] of [2021] FWCFB 4144). |
Delete clause 11.5. Insert new clause 11.5 as follows: 11.5 Offers and requests for casual conversion Offers and requests for conversion from casual employment to full-time or part-time employment are provided for in the NES. NOTE: Disputes about offers and requests for casual conversion under the NES are to be dealt with under clause 31—Dispute resolution. |
|
21.3—shiftwork for casuals |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185] |
B.2, B.3.4 and B.3.5—summary of hourly rates |
General term - not inconsistent ([179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
|
Local Government Industry Award 2020 MA000112 | |||
Clause |
Provisional view |
Action |
Notes |
8.2—requirement to inform at engagement (general) |
Not inconsistent (at [120]-[121] of [2021] FWCFB 4144) |
No variation necessary |
|
11.1—definition of casual employee |
‘Engaged as a casual’ definition – not consistent – relevant uncertainty or difficulty exists (see [69]-[70] of [2021] FWCFB 4144) Replace with reference to s.15A(1) to make consistent or operate effectively (see [105], [106], [110], [111] of [2021] FWCFB 4144) |
Delete clause 11.1. Insert new definition of ‘casual employee’ in clause 2—Definitions as follows: casual employee has the meaning given by section 15A of the Act. |
|
11.2—casual loading |
Not inconsistent (at [176] and [178] of [2021] FWCFB 4144) |
No variation necessary |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [178] |
11.3, 21.2(c) and 21.4(b)(i)—penalties and overtime for casuals |
General term- not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185] |
11.4—minimum payment |
Not inconsistent (at [163] of [2021] FWCFB 4144) |
No variation necessary |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [163] |
11.5—casual conversion |
Model clause – not consistent - less beneficial than NES - replace with reference to NES provisions to make award consistent and operate effectively with Act – (see [197]-[202], [211] of [2021] FWCFB 4144) Add note about casual conversion disputes so award operates effectively (see [199], [212], [215] of [2021] FWCFB 4144). |
Delete clause 11.5. Insert new clause 11.5 as follows: 11.5 Offers and requests for casual conversion Offers and requests for conversion from casual employment to full-time or part-time employment are provided for in the NES. NOTE: Disputes about offers and requests for casual conversion under the NES are to be dealt with under clause 31—Dispute resolution. |
|
13.1—ordinary hours |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty. (see [185] of [2021] FWCFB 4144) |
16.3(e)— regular and systematic employee |
Definition of ‘regular and systematic casual employee’ is a relevant term – proposed to update terms - (at [142], [147] and [149] of [2021] FWCFB 4144) |
Delete the term ‘regular and systematic casual employee’ in 16.3(e) and replace with ‘regular casual employee’ Insert new definition in clause 2: regular casual employee has the meaning given by section 12 of the Act. |
|
19.4(b)(i)—casuals excluded from excess travelling time provision |
Not a relevant term |
No variation necessary |
|
B.2—summary of hourly rates |
General term - not inconsistent ([179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
|
C.1—summary of monetary allowances |
General term - not inconsistent ([179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
|
Marine Towage Award 2020 MA000050 | |||
Clause |
Provisional view |
Action |
Notes |
11.1—definition of casual employee |
‘Engaged as a casual’ definition – not consistent – relevant uncertainty or difficulty exists (see [69]-[70] of [2021] FWCFB 4144) Replace with reference to s.15A(1) to make consistent or operate effectively (see [105], [106], [110], [111] of [2021] FWCFB 4144) |
Delete clause 11.1. Insert new definition of ‘casual employee’ in clause 2—Definitions as follows: casual employee has the meaning given by section 15A of the Act. |
|
11.2—casual loading |
Not inconsistent (at [176] and [178] of [2021] FWCFB 4144) |
No variation necessary |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [178] |
11.3 and 19.1(a)—overtime for casuals |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185] |
11.4, 14.3(b)(i) and 14.3(b)(vi)—rates of pay for casuals on special voyages |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty. (see [185] of [2021] FWCFB 4144) |
11.5—minimum payment |
Not inconsistent (at [163] of [2021] FWCFB 4144) |
No variation necessary |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [163] |
11.6—casual conversion |
Model clause – not consistent - less beneficial than NES - replace with reference to NES provisions to make award consistent and operate effectively with Act – (see [197]-[202], [211] of [2021] FWCFB 4144) Add note about casual conversion disputes so award operates effectively (see [199], [212], [215] of [2021] FWCFB 4144). |
Delete clause 11.6. Insert new clause 11.6 as follows: 11.6 Offers and requests for casual conversion Offers and requests for conversion from casual employment to full-time or part-time employment are provided for in the NES. NOTE: Disputes about offers and requests for casual conversion under the NES are to be dealt with under clause 28—Dispute resolution. |
|
16.3(d)(iii) and 16.3(e)(ii)—expense related allowances (Meals/victualling and accommodation in out-ports and expenses) |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty. (see [185] of [2021] FWCFB 4144) |
17.8—accident pay for casuals |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty. (see [185] of [2021] FWCFB 4144) |
29.6—termination of employment for casuals |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty. (see [185] of [2021] FWCFB 4144) |
A.2—summary of hourly rates |
General term - not inconsistent ([179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
|
Market and Social Research Award 2020 MA000030 | |||
Clause |
Provisional view |
Action |
Notes |
8.2—type of employment |
Not consistent | No variation necessary | |
11.1—definition of casual employee |
‘Engaged as a casual’ definition – not consistent – relevant uncertainty or difficulty exists (see [69]-[70] of [2021] FWCFB 4144) Replace with reference to s.15A(1) to make consistent or operate effectively (see [105], [106], [110], [111] of [2021] FWCFB 4144) |
Delete clause 11.1. Insert new definition of ‘casual employee’ in clause 2—Definitions as follows: casual employee has the meaning given by section 15A of the Act. |
|
11.2 and 13.5—ordinary hours for casuals |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty. (see [185] of [2021] FWCFB 4144) |
11.3 and 18.1(c)—casual loading |
Not inconsistent (at [176] and [178] of [2021] FWCFB 4144) |
No variation necessary |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [178] |
11.4—minimum payment |
Not inconsistent (at [163] of [2021] FWCFB 4144) |
No variation necessary |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [163] |
11.5—casual conversion |
Model clause – not consistent - less beneficial than NES - replace with reference to NES provisions to make award consistent and operate effectively with Act – (see [197]-[202], [211] of [2021] FWCFB 4144) Add note about casual conversion disputes so award operates effectively (see [199], [212], [215] of [2021] FWCFB 4144). |
Delete clause 11.5. Insert new clause 11.5 as follows: 11.5 Offers and requests for casual conversion Offers and requests for conversion from casual employment to full-time or part-time employment are provided for in the NES. NOTE: Disputes about offers and requests for casual conversion under the NES are to be dealt with under clause 28—Dispute resolution. |
|
14.5—Payment on a commission basis |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty. (see [185] of [2021] FWCFB 4144) |
20.1—casuals excluded from annual leave provisions |
Not a relevant term |
No variation necessary |
|
B.2—summary of hourly rates |
General term - not inconsistent ([179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
|
Miscellaneous Award 2020 MA000104 | |||
Clause |
Provisional view |
Action |
Notes |
11.1—definition of casual employee |
‘Engaged as a casual’ definition – not consistent – relevant uncertainty or difficulty exists (see [69]-[70] of [2021] FWCFB 4144) Replace with reference to s.15A(1) to make consistent or operate effectively (see [105], [106], [110], [111] of [2021] FWCFB 4144) |
Delete clause 11.1. Insert new definition of ‘casual employee’ in clause 2—Definitions as follows: casual employee has the meaning given by section 15A of the Act. |
|
11.2—casual loading |
Not inconsistent (at [176] and [178] of [2021] FWCFB 4144) |
No variation necessary |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [178] |
11.3—minimum payment |
Not inconsistent (at [163] of [2021] FWCFB 4144) |
No variation necessary |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [163] |
11.4—casual conversion |
Model clause – not consistent - less beneficial than NES - replace with reference to NES provisions to make award consistent and operate effectively with Act – (see [197]-[202], [211] of [2021] FWCFB 4144) Add note about casual conversion disputes so award operates effectively (see [199], [212], [215] of [2021] FWCFB 4144). |
Delete clause 11.4. Insert new clause 11.4 as follows: 11.4 Offers and requests for casual conversion Offers and requests for conversion from casual employment to full-time or part-time employment are provided for in the NES. NOTE: Disputes about offers and requests for casual conversion under the NES are to be dealt with under clause 29—Dispute resolution. |
|
13.1—ordinary hours |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty. (see [185] of [2021] FWCFB 4144) |
15.2(d)—regular and systematic employee |
Definition of ‘regular and systematic casual employee’ is relevant term – proposed to update term - (at [142], [147] and [149] of [2021] FWCFB 4144) |
Delete the term ‘regular and systematic casual employee’ in 15.2(d) and replace with ‘regular casual employee’ Insert new definition in clause 2: regular casual employee has the meaning given by section 12 of the Act. |
|
19.1(a)—overtime for casuals |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185] |
20—penalty rates for casuals |
General term- not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185] |
A.2, A.3.3—summary of hourly rates |
General term - not inconsistent ([179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
|
E.4.3(c)— National Training Wage – casual loadings disregarded |
General term- not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185] |
Nursery Award 2020 MA000033 | |||
Clause |
Provisional view |
Action |
Notes |
2—definition of casual employee |
Possible interaction difficulties or uncertainty because of differently-expressed casual definitions |
Replace ‘casual employee’ definition in clause 2 with new definition as follows: casual employee has the meaning given by section 15A of the Act. |
|
7.2—facilitative provision – casual pay period (11.6) |
Not inconsistent |
No variation necessary |
|
8.2—requirement to inform at engagement |
Not inconsistent (at [120]-[121] of [2021] FWCFB 4144) |
No variation necessary |
|
10.8—definition of casual employee |
‘Residual category’ definition - possible interaction difficulties or uncertainty because of differently-expressed casual definitions (see [76]-[77] of [2021] FWCFB 4144) |
Delete clause 10.8 |
|
11.1—definition of casual employee |
‘Engaged as a casual’ definition – not consistent – relevant uncertainty or difficulty exists (see [69]-[70] of [2021] FWCFB 4144) Replace with reference to s.15A(1) to make consistent or operate effectively (see [105], [106], [110], [111] of [2021] FWCFB 4144) |
Delete clause 11.1 Insert new definition of ‘casual employee’ in clause 2—Definitions as follows: casual employee has the meaning given by section 15A of the Act. |
|
11.2—requirement to inform at engagement |
Not inconsistent (at [120]-[121] of [2021] FWCFB 4144) |
No variation necessary |
|
11.3—casual loading |
Not inconsistent (at [176] and [178] of [2021] FWCFB 4144) |
No variation necessary |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [178] |
11.4 & 20.1—overtime for casuals |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144 |
No variation necessary |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185] |
11.5—minimum engagement/payment |
Not inconsistent (at [163] of [2021] FWCFB 4144) |
No variation necessary |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [163] |
11.6—casual pay period |
Not inconsistent (at [163] of [2021] FWCFB 4144) |
No variation necessary |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [163] |
11.7—casual conversion |
Model clause – not consistent - less beneficial than NES - replace with reference to NES provisions to make award consistent and operate effectively with Act – (see [197]-[202], [211] of [2021] FWCFB 4144) Add note about casual conversion disputes so award operates effectively (see [199], [212], [215] of [2021] FWCFB 4144). |
Delete clause 11.7 Insert new clause 11.7 as follows: 11.7 Offers and requests for casual conversion Offers and requests for conversion from casual employment to full-time or part-time employment are provided for in the NES. NOTE: Disputes about offers and requests for casual conversion under the NES are to be dealt with under clause 30—Dispute resolution. |
|
13.2(d)—ordinary hours for casuals |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty. (see [185] of [2021] FWCFB 4144) |
17.2(c)—regular and systematic casual employee |
Definition of ‘regular and systematic casual employee’ - relevant term – proposed to update term - (at [142], [147] and [149] of [2021] FWCFB 4144) |
Delete the term ‘regular and systematic casual employee’ in 17.2(c) and replace with ‘regular casual employee’ Insert new definition in clause 2: regular casual employee has the meaning given by section 12 of the Act. |
|
22.1—casuals excluded from annual leave |
Not a relevant term |
No variation necessary |
|
B.3—Summary of hourly rates |
General term - not inconsistent ([179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
|
Port Authorities Award 2020 MA000051 | |||
Clause |
Provisional view |
Action |
Notes |
2—definition of casual ordinary hourly rate |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144 |
No variation necessary |
This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty. (see [185] of [2021] FWCFB 4144) |
11.1—definition of casual employee |
‘Engaged as a casual’ definition – not consistent – relevant uncertainty or difficulty exists (see [69]-[70] of [2021] FWCFB 4144) Replace with reference to s.15A(1) to make consistent or operate effectively (see [105], [106], [110], [111] of [2021] FWCFB 4144) |
Delete clause 11.1 Insert new definition of ‘casual employee’ in clause 2—Definitions as follows: casual employee has the meaning given by section 15A of the Act. |
|
11.2 —ordinary hours |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144 |
No variation necessary |
This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty. (see [185] of [2021] FWCFB 4144) |
11.3—casual loading |
Not inconsistent (at [176] and [178] of [2021] FWCFB 4144) |
No variation necessary |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [178] |
11.4, 19.1(b), 19.3(b), 19.4(b) & 19.5(b)—overtime for casuals |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144 |
No variation necessary |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185] |
11.5—minimum engagement/payment |
Not inconsistent (at [163] of [2021] FWCFB 4144) |
No variation necessary |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [163] |
11.6—casual conversion |
Model clause – not consistent - less beneficial than NES - replace with reference to NES provisions to make award consistent and operate effectively with Act – (see [197]-[202], [211] of [2021] FWCFB 4144) Add note about casual conversion disputes so award operates effectively (see [199], [212], [215] of [2021] FWCFB 4144). |
Delete clause 11.6 Insert new clause 11.6 as follows: 11.6 Offers and requests for casual conversion Offers and requests for conversion from casual employment to full-time or part-time employment are provided for in the NES. NOTE: Disputes about offers and requests for casual conversion under the NES are to be dealt with under clause 28—Dispute resolution. |
|
15.2—junior employee rates |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144 |
This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty. (see [185] of [2021] FWCFB 4144) | |
15.3(f)—regular and systematic employee |
Definition of ‘regular and systematic casual employee’ - relevant term – proposed to update term - (at [142], [147] and [149] of [2021] FWCFB 4144) |
Delete the term ‘regular and systematic casual employee’ in 15.3(f) and replace with ‘regular casual employee’ Insert new definition in clause 2: regular casual employee has the meaning given by section 12 of the Act. |
|
B.3—Summary of hourly rates |
General term - not inconsistent ([179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
|
Ports, Harbours and Enclosed Water Vessels Award 2020 MA000052 | |||
Clause |
Provisional view |
Action |
Notes |
8.2—requirement to inform at engagement |
Not inconsistent (at [120]-[121] of [2021] FWCFB 4144) |
No variation necessary |
|
11.1—definition of casual employee (see also 11.5 below) |
‘Engaged as a casual’ definition – not consistent – relevant uncertainty or difficulty exists (see [69]-[70] of [2021] FWCFB 4144) Replace with reference to s.15A(1) to make consistent or operate effectively (see [105], [106], [110], [111] of [2021] FWCFB 4144) |
Delete clause 11.1 Insert new definition of ‘casual employee’ in clause 2—Definitions as follows: casual employee has the meaning given by section 15A of the Act. |
|
11.2—casual loading |
Not inconsistent (at [176] and [178] of [2021] FWCFB 4144) |
No variation necessary |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [178] |
11.3 & 18.2—overtime for casuals |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144 |
No variation necessary |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185] |
11.4—casual pay period |
Not inconsistent (at [163] of [2021] FWCFB 4144) |
No variation necessary |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [163] |
11.5—definition of casual employee |
‘Residual category’ definition - possible interaction difficulties or uncertainty because of differently-expressed casual definitions (see [76]-[77] of [2021] FWCFB 4144) Replace with reference to s.15A(1) to make consistent or operate effectively (see [105], [106], [110], [111] of [2021] FWCFB 4144) |
Delete clause 11.5 |
|
11.6—minimum payment |
Not inconsistent (at [163] of [2021] FWCFB 4144) |
No variation necessary |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [163] |
11.7—casual conversion |
Model clause – not consistent - less beneficial than NES - replace with reference to NES provisions to make award consistent and operate effectively with Act – (see [197]-[202], [211] of [2021] FWCFB 4144) Add note about casual conversion disputes so award operates effectively (see [199], [212], [215] of [2021] FWCFB 4144). |
Delete clause 11.7 Insert new clause 11.7 as follows: 11.7 Offers and requests for casual conversion Offers and requests for conversion from casual employment to full-time or part-time employment are provided for in the NES. NOTE: Disputes about offers and requests for casual conversion under the NES are to be dealt with under clause 28—Dispute resolution. |
|
16.2(c)(i)—casuals excluded from work at different location allowance |
Not a relevant term |
No variation necessary |
|
16.2(c)(ii)—temporary location transfer allowance |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty. (see [185] of [2021] FWCFB 4144) |
A.3—Summary of hourly rates |
General term - not inconsistent ([179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
|
Real Estate Industry Award 2020 MA000106 | |||
Clause |
Provisional view |
Action |
Notes |
2—definition of casual hourly rate |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144 |
No variation necessary |
This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty. (see [185] of [2021] FWCFB 4144) |
2—definition of junior casual hourly rate |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144 |
No variation necessary |
This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty. (see [185] of [2021] FWCFB 4144) |
8—requirement to inform at engagement |
Not inconsistent (at [120]-[121] of [2021] FWCFB 4144) |
No variation necessary |
|
11.1—definition of casual employee |
‘Engaged as a casual’ definition – not consistent – relevant uncertainty or difficulty exists (see [69]-[70] of [2021] FWCFB 4144) Replace with reference to s.15A(1) to make consistent or operate effectively (see [105], [106], [110], [111] of [2021] FWCFB 4144) |
Delete clause 11.1 Insert new definition of ‘casual employee’ in clause 2—Definitions as follows: casual employee has the meaning given by section 15A of the Act. |
|
11.2—minimum engagement |
Not inconsistent (at [163] of [2021] FWCFB 4144) |
No variation necessary |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [163] |
11.3—casual loading |
Not inconsistent (at [176] and [178] of [2021] FWCFB 4144) |
No variation necessary |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [178] |
11.4 & 19.1(a)—overtime for casuals |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144 |
No variation necessary |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185] |
11.5—excluded from commission-only employment |
‘Engaged as a casual’ definition – not consistent – relevant uncertainty or difficulty exists (see [69]-[70] of [2021] FWCFB 4144) Replace with reference to s.15A(1) to make consistent or operate effectively (see [105], [106], [110], [111] of [2021] FWCFB 4144) |
Vary clause11.5 as follows:
|
|
11.6—casual conversion |
Model clause – not consistent - less beneficial than NES - replace with reference to NES provisions to make award consistent and operate effectively with Act – (see [197]-[202], [211] of [2021] FWCFB 4144) Add note about casual conversion disputes so award operates effectively (see [199], [212], [215] of [2021] FWCFB 4144). |
Delete clause 11.6 Insert new clause 11.6 as follows: 11.6 Offers and requests for casual conversion Offers and requests for conversion from casual employment to full-time or part-time employment are provided for in the NES. NOTE: Disputes about offers and requests for casual conversion under the NES are to be dealt with under clause 28—Dispute resolution. |
|
13.3—casuals excluded from rostered time off |
Not a relevant term |
No variation necessary |
|
15.1(b)—casual pay period |
Not inconsistent (at [163] of [2021] FWCFB 4144) |
No variation necessary |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [163] |
16.7—casuals excluded from commission-only employment |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
|
17.2(c)—motor vehicle allowance |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty. (see [185] of [2021] FWCFB 4144) |
B.2, B.3.2—Summary of hourly rates |
General term - not inconsistent ([179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
|
Seagoing Industry Award 2020 MA000122 | |||
Clause |
Provisional view |
Action |
Notes |
9.1—types of employment |
Not a relevant term |
No variation required. |
|
11—Relief employees |
Not a relevant term |
No variation required. |
|
Silviculture Award 2020 MA000040 | |||
Clause |
Provisional view |
Action |
Notes |
8.2—requirement to inform at engagement |
Not inconsistent (at [120]-[121] of [2021] FWCFB 4144) |
No variation necessary |
|
11.1—definition of casual employee |
‘Engaged as a casual’ definition – not consistent – relevant uncertainty or difficulty exists (see [69]-[70] of [2021] FWCFB 4144) Replace with reference to s.15A(1) to make consistent or operate effectively (see [105], [106], [110], [111] of [2021] FWCFB 4144) |
Delete clause 11.1 Insert new definition of ‘casual employee’ in clause 2—Definitions as follows: casual employee has the meaning given by section 15A of the Act. |
|
11.2—casual loading |
Not inconsistent (at [176] and [178] of [2021] FWCFB 4144) |
No variation necessary |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [178] |
11.3, 19.2, 19.6, 19.7 & 20.9(b)—overtime for casuals |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144 |
No variation necessary |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185] |
11.4—minimum engagement |
Not inconsistent (at [163] of [2021] FWCFB 4144) |
No variation necessary |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [163] |
11.5—casual conversion |
Model clause – not consistent - less beneficial than NES - replace with reference to NES provisions to make award consistent and operate effectively with Act – (see [197]-[202], [211] of [2021] FWCFB 4144) Add note about casual conversion disputes so award operates effectively (see [199], [212], [215] of [2021] FWCFB 4144). |
Delete clause 11.5 Insert new clause 11.5 as follows: 11.5 Offers and requests for casual conversion Offers and requests for conversion from casual employment to full-time or part-time employment are provided for in the NES. NOTE: Disputes about offers and requests for casual conversion under the NES are to be dealt with under clause 30—Dispute resolution. |
|
19.4(c)—rest period after overtime |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty. (see [185] of [2021] FWCFB 4144) |
19.9—call-outs – casuals |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty. (see [185] of [2021] FWCFB 4144) |
22.1—casuals excluded from annual leave |
Not a relevant term |
No variation necessary |
|
A.3—summary of hourly rate |
General term - not inconsistent ([179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
|
Sporting Organisations Award 2020 MA000082 | |||
Clause |
Provisional view |
Action |
Notes |
8.2—requirement to inform at engagement (general) |
Not inconsistent (at [120]-[121] of [2021] FWCFB 4144) |
No variation necessary |
|
11.1—definition of casual employee |
‘Engaged as a casual’ definition – not consistent – relevant uncertainty or difficulty exists (see [69]-[70] of [2021] FWCFB 4144) Replace with reference to s.15A(1) to make consistent or operate effectively (see [105], [106], [110], [111] of [2021] FWCFB 4144) |
Delete clause 11.1 Insert new definition of ‘casual employee’ in clause 2—Definitions as follows: casual employee has the meaning given by section 15A of the Act. |
|
11.2—requirement to inform at engagement (hours of work) |
Includes a requirement to inform at engagement ‘their hours of work’ at clause 11.2. Such provisions not directly inconsistent but give rise to difficulty relating to interaction between award clause and casual definition in Act [124] Provisions not necessary to achieve modern awards objective (at [126] of [2021] FWCFB 4144) |
Amend clause 11.2 by deleting the words ‘their hours of work,’. |
|
11.3 & 11.4—casual loading |
Not inconsistent (at [176] and [178] of [2021] FWCFB 4144) |
No variation necessary |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [178] |
11.5, 19.2(c) & 19.4 – overtime for casuals |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144 |
No variation necessary |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185] |
11.6—casual payment periods |
Not inconsistent (at [163] of [2021] FWCFB 4144) |
No variation necessary |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [163] |
11.7—minimum engagement/payment |
Not inconsistent (at [163] of [2021] FWCFB 4144) |
No variation necessary |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [163] |
11.8—casual conversion |
Model clause – not consistent - less beneficial than NES - replace with reference to NES provisions to make award consistent and operate effectively with Act – (see [197]-[202], [211] of [2021] FWCFB 4144) Add note about casual conversion disputes so award operates effectively (see [199], [212], [215] of [2021] FWCFB 4144). |
Delete clause 11.8 Insert new clause 11.8 as follows: 11.8 Offers and requests for casual conversion Offers and requests for conversion from casual employment to full-time or part-time employment are provided for in the NES. NOTE: Disputes about offers and requests for casual conversion under the NES are to be dealt with under clause 28—Dispute resolution. |
|
15.1(b)(i) & 15.2(b)(i) – junior employee rates |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty. (see [185] of [2021] FWCFB 4144) |
B.2—Summary of hourly rates |
General term - not inconsistent ([179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
|
Sugar Industry Award 2020 MA000087 | |||
Clause |
Provisional view |
Action |
Notes |
7.2—facilitative provisions |
Relevant term re reference to clause 10.6(g) and 10.6(j) - delete entire reference consistent with provisional view concerning clause 10.6 (see below) |
Vary clause 7.2 to delete entire reference to clause 10.6(g) and 10.6(j) |
|
10.1—definition of casual employee |
‘Engaged as a casual’ definition – not consistent – relevant uncertainty or difficulty exists (see [69]-[70] of [2021] FWCFB 4144) Replace with reference to s.15A(1) to make consistent or operate effectively (see [105], [106], [110], [111] of [2021] FWCFB 4144) |
Delete clause 10.1 Insert new definition of ‘casual employee’ in clause 2—Definitions as follows: casual employee has the meaning given by section 15A of the Act. |
|
10.2—casual pay period |
Not inconsistent (at [163] of [2021] FWCFB 4144) |
No variation necessary |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [163] |
10.3—minimum payment |
Not inconsistent (at [163] of [2021] FWCFB 4144) |
No variation necessary |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [163] |
10.4—casual loading |
Not inconsistent (at [176] and [178] of [2021] FWCFB 4144) |
No variation necessary |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [178] |
10.5, 29.1(c), 29.2(b), 29.3 – overtime and penalty rates for casuals |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185] |
10.6 & 10.7—casual conversion |
Replace award clause with reference to the NES provisions – the new NES provisions, considered as a whole, more beneficial than the model clause (per reasoning re Manufacturing Award– see [247] of [2021] FWCFB 4144) |
Delete clauses 10.6 & 10.7 Insert new clause 10.6 as follows: 10.6 Offers and requests for casual conversion Offers and requests for conversion from casual employment to full-time or part-time employment are provided for in the NES. NOTE: Disputes about offers and requests for casual conversion under the NES are to be dealt with under clause 39—Dispute resolution. |
|
17.3(f) & 17.3(g)—casual pieceworkers |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty. (see [185] of [2021] FWCFB 4144) |
19.8(b)—‘regular and systematic casual’ |
Definitions of ‘long term casual employee’ and ‘regular and systematic casual employee’ are relevant terms – proposed to update terms - (at [142], [147] and [149] of [2021] FWCFB 4144) |
Delete the term ‘regular and systematic casual employee’ in 19.8(b) and replace with ‘regular casual employee’ Insert new definition in clause 2: regular casual employee has the meaning given by section 12 of the Act. |
|
29.4(b)—casuals excluded from provisions re rest period after overtime |
Not a relevant term |
No variation necessary |
|
30.7(b), 30.8, 30.11(b) – overtime—casual shiftworker |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty. (see [185] of [2021] FWCFB 4144) |
30.12(d), (g) and NOTE—employees recalled |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty. (see [185] of [2021] FWCFB 4144) |
D.1.4 D.1.5, D.2.6, D.2.7, D.2.8, D.3.4, D.3.5—Summary of hourly rates |
General term - not inconsistent ([179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
|
H.4.3—national training wage |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty. (see [185] of [2021] FWCFB 4144) |
Telecommunications Services Award 2020 MA000041 | |||
Clause |
Provisional view |
Action |
Notes |
11.1—definition of casual |
‘Engaged as a casual’ definition – not consistent – relevant uncertainty or difficulty exists (see [69]-[70] of [2021] FWCFB 4144) Replace with reference to s.15A(1) to make consistent or operate effectively (see [105], [106], [110], [111] of [2021] FWCFB 4144) |
Delete clause 11.1 Insert new definition of ‘casual employee’ in clause 2—Definitions as follows: casual employee has the meaning given by section 15A of the Act. |
|
11.2—casual loading |
Not inconsistent (at [176] and [178] of [2021] FWCFB 4144) |
No variation necessary |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [178] |
11.3—termination by an hour’s notice |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty. (see [185] of [2021] FWCFB 4144) |
11.4, 20.1 & 20.2(b)—overtime for casuals |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185] |
11.5—minimum engagement |
Not inconsistent (at [163] of [2021] FWCFB 4144) |
No variation necessary |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [163] |
11.6—casual conversion |
Model clause – not consistent - less beneficial than NES - replace with reference to NES provisions to make award consistent and operate effectively with Act – (see [197]-[202], [211] of [2021] FWCFB 4144) Add note about casual conversion disputes so award operates effectively (see [199], [212], [215] of [2021] FWCFB 4144). |
Delete clause 11.6 Insert new clause 11.6 as follows: 11.6 Offers and requests for casual conversion Offers and requests for conversion from casual employment to full-time or part-time employment are provided for in the NES. NOTE: Disputes about offers and requests for casual conversion under the NES are to be dealt with under clause 30—Dispute resolution. |
|
13.1—ordinary hours of work |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty. (see [185] of [2021] FWCFB 4144) |
15.2—junior employee rates |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty. (see [185] of [2021] FWCFB 4144) |
15.3(n)—regular and systematic casual |
Definitions ‘regular and systematic casual employee’ - relevant term – proposed to update term - (at [142], [147] and [149] of [2021] FWCFB 4144) |
Delete the term ‘regular and systematic casual employee’ in 15.3(n) and replace with ‘regular casual employee’ Insert new definition in clause 2: regular casual employee has the meaning given by section 12 of the Act. |
|
20.5(b)—casuals excluded from provisions re rest period after overtime |
Not a relevant term |
No variation necessary |
|
22.1—casuals excluded from annual leave |
Not a relevant term |
No variation necessary |
|
31.9 – dispute resolution training leave |
Not inconsistent |
No variation necessary |
|
Wine Industry Award 2020 MA000090 | |||
Clause |
Provisional view |
Action |
Notes |
7.2 – facilitative provision |
Relevant term re reference to clause 11.4 - delete entire reference consistent with provisional view concerning clause 11.4 (see below) |
Vary clause 7.2 to delete entire reference to clause 11.4. |
|
8.2 – requirement to inform at engagement |
Not inconsistent (at [120]-[121] of [2021] FWCFB 4144) |
No variation necessary |
|
11.1 – definition of casual employee |
‘Engaged as a casual’ definition – not consistent – relevant uncertainty or difficulty exists (see [69]-[70] of [2021] FWCFB 4144) Replace with reference to s.15A(1) to make consistent or operate effectively (see [105], [106], [110], [111] of [2021] FWCFB 4144) |
Delete clause 11.1 Insert new definition of ‘casual employee’ in clause 2—Definitions as follows: casual employee has the meaning given by section 15A of the Act. |
|
11.2—casual loading |
Not inconsistent (at [176] and [178] of [2021] FWCFB 4144) |
No variation necessary |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [178] |
11.3—minimum engagement |
Not inconsistent (at [163] of [2021] FWCFB 4144) |
No variation necessary |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [163] |
11.4 & 11.5—casual conversion |
Replace award clause with reference to the NES provisions – the new NES provisions, considered as a whole, more beneficial than the model clause (per reasoning re Manufacturing Award– see [247] of [2021] FWCFB 4144) |
Delete clauses 11.4 & 11.5 Insert new clause 11.4 as follows: 11.4 Offers and requests for casual conversion Offers and requests for conversion from casual employment to full-time or part-time employment are provided for in the NES. NOTE: Disputes about offers and requests for casual conversion under the NES are to be dealt with under clause 32—Dispute resolution. |
|
14.2(b)(i)—meal break |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty. (see [185] of [2021] FWCFB 4144) |
16.2(c)—regular and systematic employee |
Definition of ‘regular and systematic casual employee’ - relevant term – proposed to update terms - (at [142], [147] and [149] of [2021] FWCFB 4144) |
Delete the term ‘regular and systematic casual employee’ in 16.2(c) and replace with ‘regular casual employee’. Insert new definition in clause 2: regular casual employee has the meaning given by section 12 of the Act. |
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17.1—Piecework rates |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty. (see [185] of [2021] FWCFB 4144) |
20.8—accident pay for casuals |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty. (see [185] of [2021] FWCFB 4144) |
22.1(c), 22.1(d), 22.2(b) & 22.2(c)—overtime for casuals |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185] |
22.3(b)—rest period after overtime |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty. (see [185] of [2021] FWCFB 4144) |
24.1—casuals excluded from annual leave |
Not a relevant term |
No variation necessary |
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B.2—Summary of hourly rates |
General term - not inconsistent ([179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
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