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 – provisional views confirmed.

[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] In a Statement published on 6 October 2022 we expressed the following provisional views:

1. Broadcasting Award

[3] 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 2 (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.

[4] We expressed the 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.

[5] It was 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 was issued with the 6 October 2022 Statement.

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

[6] At a conference before Commissioner Hampton, the relevant unions indicated that they do not consider that the following awards require review 3:

•  Cement, Lime and Quarrying Award 2020

•  Oil Refining and Manufacturing Award 2020

•  Air Pilots Award 2020

[7] 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. We expressed the provisional view that the 3 awards set out above at [27] should be excluded from the review.

[8] Further, the CFMMEU – MUA Division had earlier 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, 4 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. In the 6 October 2022 Statement we confirmed that provisional view. No further action will be taken in relation to these awards.

[9] Interested parties were invited to comment on the provisional views at [4],[5] and [7] of the 6 October 2022 Statement and the draft determination by 4pm (AEDT) on Friday 14 October 2022. We said that if we did not receive any objection to the provisional views, we would confirm them and proceed to vary the Broadcasting Award in the terms set out in the draft determination. There was no objection to our provisional views and we will proceed accordingly.

[10] 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.

[11] 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.

[12] We issued the following directions in relation to the review of the C14 rates in the remaining awards:

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.

[13] Proposals for change were received from:

•  United Workers Union

•  Rail, Tram & Bus Union

•  CFMMEU – Manufacturing Division

•  Australian Workers’ Union

•  Australasian Meat Industry Employees’ Union

[14] Submissions in response were filed from:

•  Australian Industry Group

•  Australian Manufacturing Workers’ Union

•  Drycleaning Institute of Australia

•  Australian Business Industrial and NSW Business Chamber

[15] The Commission has prepared a summary of the proposals for change and submissions in response which has been published to the Commission’s website.

[16] A Mention was held before the President on 2 November 2022. The transcript of the mention is available here.

[17] The principal employer parties – ABI and Ai Group – do not currently support any of the proposals, but are prepared to enter into discussions with the union proponents. They both sought more time to consult with their stakeholders and members in respect of the proposals for change; to be followed by a conference process before the Commission. These proposals were discussed at the Mention on 2 November 2022.

[18] Deputy President Hampton will conduct conferences in respect of the proposals for change in the week commencing 12 December 2022. Listing notices will be published in due course. In the meantime interested parties are encouraged to confer directly in respect of the proposals.

[19] No proposal was filed in respect of the Travelling Shows Award 2020. Mr Houlihan, on behalf of the Showmen’s Guild of Australasia, filed a submission on 2 November 2022 proposing that the Travelling Shows Award 2020 be excluded from the review. Any party opposing the exclusion of the Travelling Shows Award 2020 from the review is to file a submission by no later than 4:00pm on Friday 18 November 2022. 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.

[20] We will give further consideration to the inclusion of the Travelling Shows Award 2020 in the C14 review after interested parties have had an opportunity to comment on the submission filed by the Showmen’s Guild of Australasia.

PRESIDENT

Printed by authority of the Commonwealth Government Printer

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

 2   [2022] FWC 1989

 3   See Report, [20].

 4   [2022] FWC 1989.