STATEMENT

Fair Work Act 2009
s.157 - FWC may vary etc. modern awards if necessary to achieve modern awards objective

Review of certain C14 rates in modern awards
(C2019/5259)

Review of the classification rates at the C14 rate in modern awards – introductory rates – Report to the Full Bench published – further directions issued.

[1] The Commission has initiated a review of certain modern awards which have classification rates at the C14 rate which are either not transitional rates or where the transition period is not specified (the Review). The C14 rate is equivalent to the National Minimum Wage (NMW). The Background to this matter is set out in 3 earlier Statements issued by the President. 1

[2] The relevant awards as originally classified are set out below:

Awards in which the C14 classification appears to be transitional, but no particular transition period is specified:

•  Cement, Lime and Quarrying Award 2020

•  Concrete Products Award 2020

•  Meat Industry Award 2020

•  Oil Refining and Manufacturing Award 2020

•  Port Authorities Award 2020

•  Rail Industry Award 2020

•  Stevedoring Industry Award 2020

Awards in which the C14 classification level is not a transitional level:

•  Air Pilots Award 2020

•  Broadcasting, Recorded Entertainment and Cinemas Award 2020

•  Dry Cleaning and Laundry Industry Award 2020

•  Funeral Industry Award 2020

•  Sugar Industry Award 2020

•  Travelling Shows Award 2020.

[3] Commissioner Hampton conducted a conference with interested parties and subsequently provided a Report to a Full Bench (the Report) which is available here.

[4] Paragraph 31 of the Report set out a proposed approach as follows:

‘[31] As a result, the following approach may be considered by the Commission/Full Bench:

1. Publish this Report and invite further submissions on the issues and the proposed approach. Parties should specifically identify which modern awards they have an interest in.

2. Explore with the ABS whether the ACTU’s revised proposal to use the more recent EEH data can be accommodated and publish the response/results.

3. Publish a background paper on the history of the relevant modern award provisions and set out the issues that might arise for determination by the Full Bench.

4. Invite proposals from parties concerning the relevant awards being reviewed and encourage those with an interest to discuss their respective positions with a view to narrowing or clarifying the issues. The Commission could assist by convening one or more conferences if sought by the parties.

5. Conduct an initial Full Bench hearing in October 2022 to:

•  Consider submissions made in response to the background paper and any proposals advanced by interested parties.

•  Determine the final scope of the Review and finalise those modern awards where there is a consensus as to whether the award should/should not be varied and the form of any agreed variations.

•  Consider and issue directions for the provision of evidence and submissions from parties to enable the Review to be completed in respect of the remaining relevant modern awards.’

[5] Following the publication of the Report, we issued a Statement (September Statement) on 6 September 2022. 2

[6] The September Statement included a direction to the parties that ‘[A]ny submissions on the content, issues and proposed approach set out in the Report are to be provided by Monday 12 September 2022.’

Submissions

[7] Submissions and correspondence were received from the following parties:

•  Australian Council of Trade Unions (ACTU), 12 September 2022

•  Australian Industry Group (Ai Group), 12 September 2022

•  Drycleaning Institute of Australia (DIA), 12 September 2022

•  Showmen’s Guild of Australasia, 12 September 2022

[8] The ACTU supports the approach outlined at paragraph [31] of the Report but is ‘not in a position to add to, or narrow, the issues ventilated in the Report’. The ACTU notes that it does not have a direct interest in any of the awards the subject of the Review however intends to participate insofar as it is of assistance to its interested affiliates and the Commission.

[9] First IR Law, on behalf of the Showmen’s Guild of Australasia, states that its client has an interest in the Travelling Shows Award 2020 and agrees with the approach outlined in the Report. The Showmen’s Guild of Australasia states that it will be making submissions in relation to this award at the relevant time, which it understands will be after the proposed background paper is published.

[10] DIA submits that it has an interest in the Dry Cleaning and Laundry Industry Award 2020 and intends to participate in the Review. DIA does not have any concerns with the approach proposed at paragraph [31] of the Report.

[11] Ai Group submits that of the awards listed at paragraph [5] of the Report, it has an interest in the following:

•  Air Pilots Award 2020;

•  Cement, Lime and Quarrying Award 2020;

•  Concrete Products Award 2020;

•  Meat Industry Award 2020;

•  Oil Refining and Manufacturing Award 2020;

•  Rail Industry Award 2020;

•  Stevedoring Industry Award 2020; and

•  Sugar Industry Award 2020.

[12] Ai Group submits that it supports the view expressed at paragraph [19] of the Report in relation to the Stevedoring Industry Award 2020. Paragraphs [17] to [19] of the Report provide as follows:

‘[17] The second provisional view in the July 2022 Statement was as follows:

“[9] The CFMMEU – MUA Division indicated that it would not be seeking to vary the Port Authorities Award 2010 or the Stevedoring Industry Award 2010 on the basis that the awards were ‘in sufficient terms.’ It is my provisional view that these 2 awards will not be reviewed further as part of this matter.”

[18] The CFMMEU – MUA Division confirmed the above during the Conference and indicated that it was not seeking that the 2 awards concerned be reviewed on this aspect. No party participating in the Conference indicated a different view.

[19] It appears that the Port Authorities Award 2020 or the Stevedoring Industry Award 2020 operate, in effect, as introductory classifications and can be excluded from the review as proposed.’

[13] Ai Group agrees that the awards identified at paragraph [20] of the Report do not require review and should be excluded from these proceedings. Paragraphs [20] to [23] of the Report provide as follows:

‘[20] During the Conference, the relevant unions indicated, in effect, that they did not consider that the following modern awards were problematic and did not require review as part of the present exercise:

•  Cement, Lime and Quarrying Award 2020 – AWU

•  Oil Refining and Manufacturing Award 2020 – AWU and UWU

•  Air Pilots Award 2020 – AFAP [Footnotes omitted]

[21] No other party participating the Conference contended otherwise.

[22] Subject to the Full Bench being satisfied that the terms of the relevant classification are appropriately expressed, the above awards could be confirmed at an early stage in the Review.’

[14] Ai Group submits that in relation to the programming of the Review, it continues to rely on submissions previously made 3 and as summarised at paragraph [24] of the Report. Paragraph [24] of the Report provides as follows:

‘[24] The Australian Industry Group (AiG) proposed that:

•  The review should potentially proceed on an award-by award basis;

•  Interested parties should be required to file draft determinations, or some other process adopted to ensure that proposed variations were understood, prior to requiring the filing of materials; and

•  It would be useful for some discussions between the parties to take place as proposed by the ACTU (below) to focus the issues in dispute.’

[15] In relation to timetabling, Ai Group submits that parties should be afforded ‘an adequate opportunity to engage with their members about the practical application and operation of the C14 classification descriptions in the relevant awards, as well as the potential consequences of any proposed changes’.

[16] Ai Group submits that parties should be given an opportunity to consider and make submissions about:

•  any data released by the ABS in response to the request prepared by the ACTU; and

•  any background papers published by the Commission

[17] Ai Group agrees that parties should be given an opportunity to discuss their positions regarding the various awards, with a view to narrowing/clarifying the issues.

[18] Ai Group submits that a hearing in October may be premature because:

•  Parties have not yet been invited to file their proposals (as contemplated by the Report);

•  The Commission has not yet published any background papers; and

•  The intervening period may not be sufficient for interested parties to consult their members about any proposed variations and to engage in meaningful discussions with other interested parties

[19] Ai Group submits that parties should be given an opportunity to be heard before the

Commission issues directions for the filing of submissions and/or evidence about the substantive matters in these proceedings.

ABS Data

[20] The September Statement set out that the Commission would publish any response from the ABS in relation to the second request from the ACTU referenced in the Report as soon as it is provided.

[21] Correspondence was received from the ABS on 13 September 2022 and published on the Commission’s website. The ABS concluded that the estimates ‘are not reliable or of requisite quality’ mainly due to the reduced sample scope which only covers employees at or below the C14 rate of each of the modern awards listed. Accordingly, ABS do not consider these data suitable for release.

Provisional views

1. Broadcasting Award

[22] The MEAA previously indicated that it would not be seeking to vary the Broadcasting, Recorded Entertainment and Cinemas Award 2020 (Broadcasting Award) on the basis that the award did not have employee classifications at the Grade 1 (C14) level. In a statement issued on 27 July 2022 4 (July Statement), the President expressed the provisional view that that the references to the Grade 1 classification in the Broadcasting, Recorded Entertainment and Cinemas Award 2020 are obsolete and should be deleted.

[23] The Report noted that:

‘… although there are no classifications allocated to Grade 1 in the salary structure of clause 13.2(a) of the Broadcasting Award, the Grade 1 rate is used as the applicable minimum rate for 1st year and 2nd year Adult Cadets in Journalism at clause 13.7. As a result, the removal of the Grade 1 rate could have unintended consequences.’ 5

[24] Commissioner Hampton went on to observe that in these circumstances ‘a light touch approach would be to retain the Grade 1 only for the limited purpose stated above with a note to that end.’ We agree. It is our provisional view that the Broadcasting Award should be varied as follows:

13.2 (a) Grade 1 entertainment employee includes the following classifications:

No classifications. The minimum rate for a Grade 1 entertainment employee is used for the purposes of calculating the adult cadet rates in clause 13.7 only.

13.3 Adult rates

An employer must pay adult entertainment employees in the classifications in clause 13.2 the following minimum rates for ordinary hours worked by the employee (subject to the provisions of clause 13.8):

1 The minimum rate for a Grade 1 entertainment employee is used for the purposes of calculating the adult cadet rates in clause 13.7 only.

[25] It is our provisional view that such a variation would remove an ambiguity or uncertainty in the Broadcasting Award about the application and purpose of the grade 1 rate appearing in cl.13.3. In our view, the proposed variation would clarify that the grade 1 rate is included only for the purpose of calculating the adult cadet rates and should not be used for any other purpose. A draft determination giving effect to this provisional view will be issued with this statement.

2. Port Authorities Award 2020 and Stevedoring Industry Award 2020

[26] The CFMMEU – MUA Division indicated that it would not be seeking to vary the Port Authorities Award 2020 or the Stevedoring Industry Award 2020 on the basis that the awards were ‘in sufficient terms.’ In the July Statement, the President expressed the provisional view that these 2 awards would not be reviewed further as part of this matter. No party objected to the provisional view either in submissions or at the conference before Commissioner Hampton. Accordingly, we confirm the provisional view, no further action will be taken in relation to these awards.

3. Cement, Lime and Quarrying Award 2020, Oil Refining and Manufacturing Award 2020 and Air Pilots Award 2020

[27] At the conference before Commissioner Hampton, the relevant unions indicated that they do not consider that the following awards require review 6:

•  Cement, Lime and Quarrying Award 2020

•  Oil Refining and Manufacturing Award 2020

•  Air Pilots Award 2020

[28] No other party participating at the conference objected to the views of the unions. As set out above, Ai Group supported this position in their submissions dated 12 September 2022. Accordingly, it is our provisional view that the 3 awards set out above at [27] should be excluded from the review.

Next steps

[29] Interested parties are invited to comment on the provisional views at [24],[25] and [28] and the draft determination by 4pm (AEDT) on Friday 14 October 2022. If we do not receive any objection to the provisional views, we will confirm them and will proceed to vary the Broadcasting Award in the terms set out in the draft determination.

[30] Subject to the confirmation of the provisional views at [24], [25] and [28], the following awards remain to be considered as part of the review:

Awards in which the C14 classification appears to be transitional, but no particular transition period is specified:

•  Concrete Products Award 2020

•  Meat Industry Award 2020

•  Rail Industry Award 2020

Awards in which the C14 classification level is not a transitional level:

•  Dry Cleaning and Laundry Industry Award 2020

•  Funeral Industry Award 2020

•  Sugar Industry Award 2020

•  Travelling Shows Award 2020.

[31] A Background Paper prepared by Commission staff and setting out the history of the relevant modern award provisions has been published to the Commission website.

[32] A table setting out the interested parties for each award and their submissions filed to date is at Attachment A.

[33] The following directions are made in relation to the remaining awards at [30]:

1. Those parties seeking a change to one or more of the relevant modern awards should file details of the proposal with the Commission by 4pm (AEDT) on 19 October 2022.

2. Any submissions in response to the proposals filed in accordance with direction 1 and the Background Paper (including any corrections to the Background paper) should be filed by 4pm (AEST) on 26 October 2022. 

3. Any submissions in response, or corrections to the Background Paper should be filed by 4pm (AEDT) on 26 October 2022.

4. Submissions should be filed in Word format and sent to [email protected]. Any material received will be published on the relevant page on the Commission’s website.

5. The matter will be listed for Mention at 9:30am (AEDT) on Thursday 27 October 2022.

PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR746533>

ATTACHMENT A

C14 matter – remaining awards

ABI have an interest in some, but not all of the awards being considered – see Transcript 23/08/22 PN278

 1   [2022] FWC 1989; [2020] FWC 6647 and [2019] FWC 8159

 2   [2022] FWCFB 170

 3   In particular its written submission of 18 August 2022 and transcript of proceedings on 22 August 2022 at PN216-220.

 4   [2022] FWC 1989

 5   Report, [14].

 6   See Report, [20].