4 yearly review of modern awards
[2020] FWCFB 2124
•27 APRIL 2020
| [2020] FWCFB 2124 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.156 - 4 yearly review of modern awards
4 yearly review of modern awards
(AM2019/17)
JUSTICE ROSS, PRESIDENT | MELBOURNE, 27 APRIL 2020 |
4 yearly review of modern awards – finalisation of exposure drafts – tranche 3 awards.
Chapters | Paragraph | |
1 | Background | [1] |
2 | Uncontentious awards | [12] |
3 | Award specific issues | [14] |
3.1 Amusement, Events and Recreation Award 2010 | [14] | |
3.2 Black Coal Mining Industry Award 2010 | [18] | |
3.3 Broadcasting, Recorded Entertainment and Cinemas Award 2010 | [27] | |
3.4 Business Equipment Award 2010 | [62] | |
3.5 Electrical, Electronic and Communications Contracting Award 2010 | [65] | |
3.6 Fitness Industry Award 2010 | [81] | |
3.7 Food, Beverage and Tobacco Manufacturing Award 2010 | [98] | |
3.8 Funeral Industry Award 2010 | [123] | |
3.9 General Retail Industry Award 2010 | [134] | |
3.10 Graphic Arts, Printing and Publishing Award 2010 | [142] | |
3.11 Health Professionals and Support Services Award 2010 | [158] | |
3.12 Horse and Greyhound Training Award 2010 | [165] | |
3.13 Horticulture Award 2010 | [175] | |
3.14 Live Performance Award 2010 | [199] | |
3.15 The Maritime Awards | [263] | |
3.15.1 Marine Towage Award 2010 | [267] | |
3.15.2 Marine Tourism Charter Vessels Award 2010 | [273] | |
3.15.3 Ports, Harbours and Enclosed Water Vessels Award 2010 | [276] | |
3.15.4 Seagoing Industry Award 2010 | [300] | |
3.16 Miscellaneous Award 2010 | [315] | |
3.17 Nurses Award 2010 | [325] | |
3.18 Professional Employees Award 2010 | [332] | |
3.19 Racing Clubs Events Award 2010 | [340] | |
3.20 Registered and Licensed Clubs Award 2010 | [343] | |
3.21 Security Services Industry Award 2010 | [364] | |
3.22 Telecommunications Services Award 2010 | [374] | |
3.23 Textile, Clothing, Footwear and Associated Industries Award 2010 | [399] | |
3.24 Timber Industry Award 2010 | [437] | |
3.25 Wine Industry Award 2010 | [514] | |
4 | Next Steps | [557] |
Abbreviations
|
1. Background
[1] On 2 September 2019 we published a decision 1 providing an overview of the status of the 4 yearly review of modern awards and setting out the process for finalising the Exposure Drafts and the consequent variation of each award.
[2] On 29 January 2020 Exposure Drafts and draft variation determinations were published for each of the Tranche 3 modern awards. On the same day we published a decision 2 (the January 2020 Decision) in which we expressed the provisional view that the variation of the modern awards in Tranche 3 in accordance with the draft variation determinations was, in respect of each of these awards, necessary to achieve the modern awards objective.
[3] Interested parties were invited to comment on our provisional view and on the Tranche 3 Exposure Drafts and draft variation determinations.
[4] Submissions were filed by:
• Australian Business Industrial & NSW Business Chamber Limited (ABI) – Submissions re Amusement, Events and Recreation Award; Black Coal Mining Industry Award; Broadcasting, Recorded Entertainment and Cinemas Award; Building and Construction General On-Site Award; Business Equipment Award; Educational Services (Teachers) Award; Electrical, Electronic and Communications Contracting Industry Award; Fitness Industry Award; Food, Beverage and Tobacco Manufacturing Award; Funeral Industry Award; General Retail Industry Award; Graphic Arts, Printing and Publishing Award; Health Professional and Support Services Award; Horticulture Award; Joinery and Building Trades Award; Journalist Published Media Award; Miscellaneous Award; Mobile Crane Hiring Award; Nurses Award; Plumbing and Fire Sprinklers Award; Professional Employees Award; Racing Clubs Events Award; Registered and Licensed Clubs Award; Security Services Award; Sugar Industry Award; Supported Employment Services Award; Telecommunications Services Award; Textile, Clothing, Footwear and Associated Industries Award; Timber Industry Award; Wine Industry Award on 6 March 2020
• Association of Independent Schools (A.I.S) – Submissions re Educational Services (Teachers) Award on 3 March 2020
• Association of Professional Engineers, Scientists and Managers Australia (APESMA) – Collieries’ Staff and Officials Association – Submissions re the Black Coal Mining Industry Award on 4 March 2020
• Australian Federation of Employers and Industries (AFEI) – Submissions re the Ports, Harbours and Enclosed Water Vessels Award on 4 March 2020
• Australian Industry Group (Ai Group) – Submissions re Black Coal Mining Industry Award; Business Equipment Award; Electrical, Electronic and Communications Contracting Award; Food, Beverage and Tobacco Manufacturing Award; Graphic Arts, Printing and Publishing Award; Horticulture Award; Miscellaneous Award; Nurses Award; Professional Employees Award; Sugar Industry Award; Telecommunications Services Award; Textile, Clothing, Footwear and Associated Industries Award; Timber Industry Award; Wine Industry Award on 6 March 2020
• Australian Manufacturing Workers’ Union (AMWU) – Submissions re Black Coal Mining Industry Award; Food, Beverage and Tobacco Manufacturing Award; Miscellaneous Award; Sugar Industry Award; Timber Industry Award on 5 March 2020
• Australian Nursing and Midwifery Federation (ANMF) – Submissions re the Nurses Award on 4 March 2020
• Australian Security Industry Association Limited (ASIAL) – Submissions re the Security Services Industry Award on 2 March 2020
• Australian Workers’ Union (AWU) – Submissions re the Food, Beverage and Tobacco Manufacturing Award; Funeral Industry Award; Horse and Greyhound Training Award; Horticulture Award; Pest Control Industry Award; Racing Clubs Events Award; Sugar Industry Award; Wine Industry Award on 6 March 2020
• Birch Carroll & Coyle and Ors – Submissions re the Broadcasting, Recorded Entertainment and Cinemas Award on 3 March 2020
• Club Managers’ Association Australia (CMAA) – Submissions re Registered and Licensed Clubs Award on 4 March 2020
• Clubs Australia Industrial (CAI) – Submissions re Registered and Licensed Clubs Award on 4 March 2020
• Commercial Radio Australia – Submissions re the Broadcasting, Recorded Entertainment and Cinemas Award on 12 February 2020
• Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) – Submissions re the Black Coal Mining Industry Award on 5 March 2020
• Construction, Forestry, Maritime, Mining & Energy Union (CFMMEU) – Manufacturing Division – Submissions re the Textiles, Clothing, Footwear and Associated Industries Award on 6 March 2020
• Construction, Forestry, Maritime, Mining & Energy Union (CFMMEU) – Manufacturing Division – Submissions re the Timber Award on 10 March 2020
• Construction, Forestry, Maritime, Mining and Energy Union – Mining And Energy Division (CFMMEU – M & E Division) – Submissions re the Black Coal Mining Industry Award on 4 March 2020
• Independent Education Union of Australia (IEU) – Submissions re Educational Services (Teachers) Award on 4 March 2020
• Live Performance Australia (LPA) – Submissions re the Amusement, Events and Recreation Award on 19 February 2020
• Live Performance Australia (LPA) – Submissions re the Live Performance Award on 4 March 2020
• Maritime Industry Australia Limited (MIAL) – Submissions re the Seagoing Industry Award; Ports, Harbour and Enclosed Water Vessels Award; Marine Towage Award on 17 February 2020 and 4 March 2020
• Master Plumbers – Submissions re the Plumbing and Fire Sprinklers Award on 6 March 2020
• Media Entertainment and Arts Alliance (MEAA) – submissions re Journalists Published Media Award on 26 February 2020
• Private Hospital Industry Employer Associations – Submissions re Health Professionals and Support Services Award on 4 March 2020
• Professional Golfers Association (PGA) – Submissions re the Amusement, Events and Recreation Award on 21 February 2020
• Qantas Group – Submissions re Aircraft Cabin Crew Award 2010 on 11 March 2020
• South Australian Wine Industry Association – Submissions re the Wine Industry Award on 4 March 2020
• United Workers’ Union (UWU) – Submissions re the Funeral Industry Award; Miscellaneous Award; Registered and Licensed Clubs Award; Security Services Industry Award; Wine Award on 4 March 2020
[5] On 2 March 2020 we issued a Statement 3 (the Construction Awards Statement) in relation to the four of the Tranche 3 awards set out below;
• Building and Construction (General) On-Site Award 2010
• Joinery and Building Trades Award 2010
• Mobile Crane Hiring Award 2010
• Plumbing and Fire Sprinklers Award 2010
(collectively, the Construction awards)
[6] The Construction Awards Statement said that the Exposure Drafts and draft variation determinations for the Construction awards will be re-published after the Full Bench in AM2016/23 has issued final variation determinations. The final variation determinations for the Construction awards were issued on 20 March 2020. 4 A statement and directions will be issued in relation to the finalisation of the Exposure Drafts and draft variation determinations in due course.
[7] On 23 March 2020 we published a Statement 5 (the March 2020 Statement) and a Background Paper (the Tranche 3 BP) which summarised the submissions filed in respect of the remaining 34 modern awards in Tranche 3 and also:
• set out some minor drafting errors and omissions in the exposure drafts and draft variation determinations, which we proposed to correct;
• set out some provisional views in response to submissions put: and
• invited interested parties to comment on certain submissions.
[8] The March 2020 Statement also extended the time for filing reply submissions, from 27 March 2020 until 7 April 2020 and contained the following direction:
‘The reply submissions are to reply to the submissions filed and address the provisional views and other issues raised in the Background Paper, including the proposals to correct minor drafting errors and responding to invitations to comment on other submissions.’
[9] The March 2020 Statement also vacated the oral hearing previously scheduled for 6 and 7 April 2020.
[10] We granted the IEU and AIS an extension in respect of the filing of submissions in relation to the Educational Services (Teachers) Award 2010. A separate Statement will be published in due course regarding the finalisation of the draft variation determination in respect of this award.
[11] The following reply submissions were filed:
• Australian Industry Group (Ai Group) – Reply submission re the Black Coal Award; the Business Equipment Award; the Electrical Contracting Award; the FBT Award; the Graphic Arts Award; the Horticulture Award; the Miscellaneous Award; the Nurses Award; the Professionals Award; the Sugar Award; the Telecommunications Award; the TCF Award; the Timber Industry Award and the Wine Industry Award
• Ai Group – Submission re the Graphic Arts Award
• Australian Business Industrial & NSW Business Chamber Limited (ABI) – Reply submission re the Broadcasting and Recorded Entertainment and Cinemas Award, the Educational Services (Teachers) Award, the Electrical, Electronic and Communications Contracting Award, the Food, Beverage and Tobacco Manufacturing Award, the Health Professionals and Support Services Award, the Horticulture Award, the Nurses Award, the Professional Employees Award, the Racing Clubs Events Award, the Telecommunications Services Award, the Textile, Clothing, Footwear and Associated Industries Award, the Timber Industry Award and the Wine Industry Award
• Australian Manufacturing Workers’ Union (AMWU) – Reply submission re the Graphic Arts and Printing Award
• Australian Nursing and Midwifery Federation (ANMF) – Reply submission re the Nurses Award
• Australian Swim Schools Association (ASSA) – Reply submission re the Fitness Industry Award
• Australian Workers’ Union (AWU) – Reply submission re the Amusements, Events and Recreation Award; the Horse and Greyhound Training Award; the Horticulture Award and the Wine Industry Award
• Birch Carroll and Coyle and other cinema industry employers (BCC) – Reply submission re the Broadcasting, Recorded Entertainment and Cinemas Award
• Communications, Electrical and Plumbing Union of Australia (CEPU) – Reply submission re the Electrical, Electronic and Communications Contracting Award
• Construction Forestry Maritime Mining Energy Union – Manufacturing Division (CFMMEU – Manufacturing Division) – Reply submission (extension of time granted to 9 April 2020) re the Textile, Clothing, Footwear and Associated Industries Award and Timber Industry Award
• Construction Forestry Maritime Mining Energy Union (CFMMEU – MUA Division) – Reply submission re the Ports, Harbours and Enclosed Water Vessels Award
• Construction Forestry Maritime Mining Energy Union (CFMMEU – MUA Division) – Reply submission re the Seagoing Industry Award
• Club Managers’ Association Australia – Reply submission re the Registered and Licensed Clubs Award
• Community and Public Sector Union (CPSU) – Reply submission re the Telecommunications Services Award, Broadcasting, Recorded Entertainment and Cinema’s Award and Miscellaneous Award
• Housing Industry Award (HIA) – Reply submission re the Timber Industry Award
• South Australian Wine Industry Association – Reply submission re the Wine Industry Award
• United Workers’ Union (UWU) – Reply submission (extension of time granted to 9 April 2020) re the Food, Beverage and Tobacco Manufacturing Award, Miscellaneous Award, Registered and Licensed Clubs Award, Security Services Industry Award, Wine Industry Award
2. Uncontentious awards
[12] The submissions filed do not identify any issues (other than minor drafting errors 6) with the Exposure Drafts and draft variation determination in respect of the following awards.
• Aircraft Cabin Crew Award 2010 7
• Dredging Industry Award 2010
• Journalists Published Media Award 20108
• Pest Control Industry Award 20109
• Sugar Industry Award 201010
• Supported Employment Services Award 2010
[13] The variation determinations in respect of these awards will be published shortly (see Section 4: Next Steps)
3. Award specific issues
3.1 Amusement, Events and Recreation Award 2010
[14] In its initial submission, ABI submitted that until the application of the casual loading to overtime rates in the Amusement Award is determined, either:
(i) the drafting pertaining to the casual loading should be maintained in its original form (as currently appears in the Amusement Award); or
(ii) the Exposure Draft for the Amusement Award should not be determined and published in its new form.
[15] At [22] of the Tranche 3 BP we expressed the provisional view that option (i) proposed by ABI be adopted. No party opposed our provisional view. We confirm our provisional view and will adopt option (i) proposed by ABI.
[16] LPA raised an issue concerning table C.3.1 which provides as follows:
C.3.1 Casual adult employees – ordinary and penalty rates
Ordinary hours | Public holiday | |
% of ordinary hourly rate | ||
125% | 200% | |
$ | $ | |
Grade 2 (General hand) |
|
|
Grade 4 (Exhibition technician) |
|
|
Grade 5 (Supervisory exhibition technician) |
|
|
[17] Given the terms of clause 18.2(b) we expressed the provisional view (at [31] of the Tranche 3 BP) that the casual hourly rates in Table C.3.1 be amended as proposed by the LPA. No party opposed our provisional view. We confirm our provisional view and will amend the casual hurly rates in Table C.3.1 as proposed by the LPA.
3.3 Black Coal Mining Industry Award 2010
[18] On 12 March 2020 a Statement was published in relation to the Black Coal Mining Industry Award. 11 The Statement set out the issues in respect of this award and indicated that it will be the subject of a separate conferencing process.
[19] A conference in respect of the issues raised was held on Friday 20 March 2020. The transcript of the conference is available to be viewed here. A Report published on 23 March 2020 sets out the outcomes of the conference.
[20] The matters that were agreed at the conference are as follows:
1. The correction of the following errors in the Exposure Draft:
• the reference to ‘20XX’ should be replaced with ‘2020’ in the title of the award, the header and clause 1.1’
• the reference to clause 14 in clause 7.2(a) (the index to facilitative provisions) should be deleted and replaced with a reference to clause 15;
• in clause 17.4, each time ‘20XX’ appears it should be replaced with ‘2020’;
• in clause 24.9(a), 24.9(i) and 24.10, the reference to clause 24.4 should be replaced with a reference to clause 24.10;
• in clause A.1.5 Note, the reference to clause 31 should be deleted, consistent with the note following the extant A.1.5;
• in clause A.8.2 Wage related allowances and reimbursements – height money, the final column should be amended to reflect the fact that height money is payable per shift, not per hour.
2. The definition of the ‘black coal mining industry’ in clause 2 will be amended as follows:
‘black coal mining industry has the meaning given in clause 4.2 and clause 4.3’
3. The definition of ‘ordinary week’s pay’ in clause 2 will be amended as follows:
‘ordinary week’s pay means the minimum weekly wage rate in the tables of minimum rates in clauses Schedules A.4 and B.2 for the award classification rate in respect of 35 ordinary hours.’
4. Clause 25.1 – Personal carers leave and compassionate leave:
The following explanatory words be inserted into clause 25.1 of the Exposure Draft:
‘Personal/carer’s leave entitlements are provided for in the NES. This clause supplements those entitlements and deals with evidence required to be provided by an employee when taking paid personal/carer’s leave.’
5. Clause 21.3 – Six day and seven day roster employees.
Variations to clauses 21.3(a) and (b) will be made as follows:
21.3 Six day and seven day roster employees
(a) All time worked in excess of or outside ordinary hours after of an afternoon shift or a rotating night shift by a 6 day roster employee or a 7 day roster employee will be paid at 215% of the employee’s ordinary base hourly rate of pay.
(b) All time worked in excess of or outside ordinary hours after of a permanent night shift by a 6 day roster employee or a 7 day roster employee will be paid at 225% of the employee’s ordinary base hourly rate of pay.
[21] Two issues remain outstanding.
Issue 1: Shiftwork rates Schedules C and D
[22] The CFMMEU (M&E) submits that the rates in clauses C.1.2, D.1.2 and D.2.2 should be amended, as follows:
(i) for the first 4 hours on a Saturday: 165% for an afternoon and rotating night and 175% for hours worked on a permanent night shift; and
(ii) on a Saturday after the first 4 hours: 215% for an afternoon and rotating night shift and 225% for hours worked on a permanent night shift.
[23] CFMMEU (M&E) proposal is supported by the other unions and opposed by Ai Group and the Coal Mining Industry Employer Group.
Issue 2: Clause 29.4 Employee required to work on a recognised public holiday
[24] Ai Group is pressing a claim in relation to clause 29.4 (clause 18.4 of the Exposure Draft at that time).
‘18.4 Employee required to work on a recognised public holiday
(a) An employee who is required to work on a public holiday is to be paid at the rate of double time 200% of the relevant minimum hourly rate prescribed by clauses A.4 and B.2 for work performed during ordinary hours, in addition to any amount payable in respect of the relevant minimum weekly rate payment prescribed by clauses A.4 and B.2.
(b) Work performed in excess of ordinary hours on a public holiday is to be paid at the rate of 300% of the relevant minimum hourly rate prescribed by clauses A.4 and B.2. treble time.
(c) The rates prescribed by this clause are paid in substitution for, and are not cumulative upon, the penalty rates in clause 13 and the overtime rates in clause 14 of this award.’ 12
[25] The following directions were set out in the Report and continue to apply to the ‘agreed’ matters and issues 1 and 2 above:
1. All parties are to confirm their agreement to the matters set out [5] above by no later than 4pm, Wednesday 15 April 2020.
2. The CFMMEU (M&E) is to file a draft determination and a submission in support of its proposed variation by no later than 4pm, Wednesday 15 April 2020.
3. Ai Group is to file a draft determination and a submission in support of its proposed variation by no later than 4pm, Wednesday 15 April 2020.
4. Interested parties are to file any submission in reply to the submissions filed pursuant to directions 1 and 2, by no later than 4pm, Wednesday 13 May 2020.
5. Liberty to apply.
[26] A further conference will be convened after the reply submissions have been filed.
3.3 Broadcasting, Recorded Entertainment and Cinemas Award 2010
[27] ABI, Birch Carroll and Coyle Limited and other cinema industry employers (BCC) and Commercial Radio Australia (CRA) made submissions in relation to the Broadcasting Award.
[28] ABI raised four issues.
(i) Clause 45.3 - Penalty rates not cumulative
[29] Clause 45.3 states:
45.3 Penalty rates not cumulative
Extra rates prescribed in clause 45 are not cumulative so as to exceed a maximum of 300% of the minimum hourly rate.
[30] ABI submitted that the drafting of clause 45.3 is ‘somewhat unique’ and that it ‘does not appear to have any meaningful work to do and should be removed.’
[31] At [39] of the Tranche 3 BP we expressed the provisional view that clause 45.3 be deleted.
[32] No party opposed our provisional view. We confirm our provisional view and will delete clause 45.3.
(ii) Clause 62.2 (a) - Zone managers - additional allowances
[33] Clause 62.2(a) states:
(a) Zone managers—additional allowances
(i) A zone manager will, in addition to the ordinary wage, be paid the following allowance for each additional theatre supervised:
Allowance for each additional theatre supervised | Maximum allowance | |
$ per theatre | $ per week | |
Zone 1 | 46.40 | 278.50 |
Zone 2 | 32.52 | 196.05 |
(ii) Zone 1 applies to cinemas in the central city areas of the capital cities of the States of the Commonwealth and the City of Newcastle or any cinemas regularly giving 3 or more performances daily.
(iii) Zone 2 applies to drive-in theatres and all other cinemas other than those in Zone 1.
[34] ABI questioned whether the wording of clause 62.2(a)(ii) offends s.154 of the Fair Work Act 2009 on the basis that is expressed to apply to areas within capitals cities of “the States of the Commonwealth”.
[35] ABI noted that while the Federal Court has confirmed that a modern award may contain an allowance that applied to a place within a state or territory, the current wording of the clause may still offend section 154 as it expressed to apply to the capital cities of all states, not all state and territories.
[36] ABI contended that such issues might be resolved by rewording clause 62.2(a)(ii) as follows:
‘Zone 1 applies to cinemas:
A. in the central city areas of:
• Sydney;
• Melbourne;
• Brisbane;
• Perth;
• Adelaide; and
• the City of Newcastle; or
B. any cinemas regularly giving 3 or more performances daily.’
[37] At [44] of the Tranche 3 BP we invited interested parties to comment on the issue raised by ABI and the solution proposed. BCC support the amendment and reasoning advanced by ABI.
[38] We agree with ABI and will amend clause 62.2(a)(ii) as proposed.
(iii) Clause A.1.1(e) - Definitions - Captioner
[39] Clause A.1.1(e)(ii) provides as follows:
‘Captions are the transcription of speech, sound effects and other pertinent information which features as part of a soundtrack and would not otherwise be accessible to Deaf or hearing impaired viewers. Captions are either transmitted live-to-air or are prepared in advance and are timecoded to keep in synch with the soundtrack. Captions can also include colouring and positioning to help identify speakers.’
[40] ABI submitted that the word “Deaf” in clause A.1.1(e) does not need to be capitalised.
[41] At [47] of the Tranche 3 BP we agreed with ABI. No party expressed a contrary to the view. We confirm our view and will amend the Exposure Draft and draft variation determination.
(iv) Clause A.1.23(d) - Definitions - Captioner/Audio Describer and Subtitlers/Subtitling Editors
[42] Clause A.1.23(d) states:
(d) Multi-Skilled Captioner/Audio Describer Skills, competencies, duties and responsibilities held and exercised
(i) Performs the duties of the lower classification
(ii) Experienced in audio description, live or file captioning
(iii) Meets a high standard of accuracy and productivity across a range of programs and output types to the required levels
(iv) Capable of working independently without direct supervision and applies appropriate discretion and judgment in carrying out work
(v) Provides support and guidance to other Captioners/Audio Describers Duties may include specialised editing of own and others work, audio describing for movies and other longer more complex content and live output on a range of programs including sports and news and current affairs
[43] The sentence beginning with the words “Duties may include specialised editing” has been appended to subclause A.1.23(d)(v) and ABI submits that this sentence should be separated from the five subclauses (i) to (v) as in clauses A.1.23(a), (c), (e) and (h).
[44] At [50] of the Tranche 3 BP we expressed the provisional view that clause A.1.23(d)(v) be redrafted as follows:
(v) Provides support and guidance to other Captioners/Audio Describers
Duties may include specialised editing of own and others work, audio describing for movies and other longer more complex content and live output on a range of programs including sports and news and current affairs
[45] No party opposed our provisional view. We confirm our provisional view and will redraft clause A.1.23(d)(v).
[46] BCC raised three issues.
(i) Definitions
[47] At clause 2 of the Exposure Draft, there is a definition of ‘cinema’. At clause 62, at Schedule D (D.1.4(d), D.1.6, D.1.7(a) and D.1.8) and at Schedule H (H.1.1) the word ‘theatre’ is used. BCC and others submit that there is a clear intention in the award that, at these places in the Exposure Draft, these words have an identical meaning and contend that any possible ambiguity should be resolved. BCC submitted that this could be done by changing ‘theatre’, each time it appears in these places, to ‘cinema’.
[48] The word ‘theatre’ is also used in Schedule E - Actors at E.2.5. BCC does not suggest that there be any change to Schedule E.
[49] At [54] of the Tranche 3 BP we expressed the provisional view that the amendment proposed by BCC be adopted. No party opposed our provisional view. We confirm our provisional view and will make the amendments proposed by BCC.
(ii) Casual conversion
[50] BCC advanced the following submission:
‘Clause 8.2 states that Clause 11 - Casual employees will not apply to employees in cinemas. However clause 11.5(k)(ii) indicates that clauses 58.3 and 59.4, which apply to employees in cinemas, are relevant to casual conversion.
The intention of the Full Bench is noted in the Decision of 21 September 2018 as it is stated in AM2014/196 and AM2014/197:
We consider the cinema industry employers’ concern will be addressed if paragraph (j)(ii) of the casual conversion is modified to read:
“(ii) if it is agreed that the employee will become a part-time employee, the matters referred to in clauses 54.3(a), 55.1(c) and 55.2(d) in respect of cinema employees and the matters referred to in clause 10.4(c) in respect of all other employees.”
Current Award clause 54.3(a) is reflected in clause 57.3 of the Exposure Draft.
Current Award clause 55.1 (c) is reflected in clause 58.3 of the Exposure Draft.
Current Award clause 55.2(d) is reflected in clause 59.4 of the Exposure Draft.
The inconsistencies in the Exposure Draft appear to be:
● Clause 8.2 This states that clause 11.4 - Casual employees will not apply to employees in cinemas (see clause 57 - Types of employment).
● Clause 11.5(k)(ii) This states that clause 10.1 applies to employees in cinemas. However clause 8.2 states that it does not apply. Clause 57.3 - Part-time employees corresponds with clause 54.3(a) in the current award and is the provision applicable to employees in cinemas.
● Clause 11.5(k)(ii) This also refers to clauses 58.3 (55.1 (c) of the current Award) and 59.4 (55.2(d) of the current Award). No recognition is given in the Exposure Draft to the Full Bench reference to clause 57.3 (54.3(a) in the current Award).’ 13
[51] BCC proposed to advance a ‘suitable provision’ before the hearing scheduled for 6 and 7 April 2020. In its reply submission of 7 April 2020, BCC submits:
‘As noted at paragraph 5.2 of the Employers’ submission dated 3 March 2020, there is an anomaly at clauses 8.2 and 11 of the Exposure Draft in respect of casual conversion of casuals in cinemas. Clause 8.2 states that clause 11 – Casual employees does not apply to employees in cinemas. However clause 11.5(k)(ii) implies that it does. Further, in its Decision of 21 September 2018, (AM2014/196 and AM2014/197), the Full Bench ordered specific words for the BREC Award in respect of conversion from casual in cinemas.
To give effect to the Full Bench Decision of 21 September 2018, the Employers propose the following:
(i) Clause 8.2 of the Exposure Draft be amended to: Clause 9 –Full-time employees to clause 11.4 will not apply to employees in cinemas.
(ii) Clause 11.5(k)(ii), as decided by the Full Bench on 21 September 2018, be expressed as follows (adopting the clause numbers in the Exposure Draft): if it is agreed that the employee will become a part-time employee, the matters referred to in clauses 57.3, 58.3 and 59.4 in respect of employees in cinemas, and the matters referred to in clause 10.4 in respect of all other employees [Background Paper 55-56].’
[52] We propose to convene a conference to discuss this issue.
(iii) Minimum wages
[53] BCC noted that the Draft Determination attached to the Decision of 20 November 2019 (AM2018/17) has not yet been made. A decision and final variation determination were issued on 20 March 2020. 14 The Exposure Draft and variation determination will be amended to incorporate the 20 March 2020 variation.
[54] The CRA submission concerned clause 18.3(a) of the Exposure Draft, which states:
18.3 Annual leave loading
Before the start of the employee’s annual leave the employer must pay the employee:
(a) Subject to clauses 32.1(d) and 32.2(d), instead of the base rate of pay referred to in section 90(1) of the Act, the amount the employee would have earned for working their normal hours, exclusive of overtime had they not been on leave;
(b) An additional loading of 17.5% of the relevant minimum wage for their classification as set out in this award.
[55] The comparable provision in the current award is at clause 23.9(a) and (b), as follows:
23.9 Before the start of the employee’s annual leave the employer must pay the employee:
(a) subject to clause 30.8, instead of the base rate of pay referred to in s.90(1) of the Act, the amount the employee would have earned for working their normal hours, exclusive of overtime had they not been on leave; and
(b) an additional loading of 17.5% of the relevant minimum wage for their classification as set out in this award.
[56] CRA contended that clause 18.3(a) can be read as ‘inappropriately entitling some employees … to payment of both the relevant shift loading (and potentially other amounts payable in respect of ordinary hours, but now excluding overtime) and an additional annual leave loading’. CRA proposed that:
(a) clause 18.3(a) of the Exposure Draft should be deleted and replaced with the following:
‘(a) Subject to clause 32.2(d), instead of the base rate of pay referred to in s.90(1) of the Act, the amount the employee would have earned for working their normal hours had they not been on leave, but excluding overtime, shift rates, penalty rates, special rates or any other payment which might have been payable to the employee as a reimbursement for expenses incurred; and
(b) a new paragraph should be added to clause 18(c) of the Exposure Draft after clause 18.3 as follows:
‘An employee who would have worked on shiftwork had they not been on leave must be paid a loading equal to that prescribed in clauses 16.7(a) and 16.7(b) or the shift rates prescribed by this award, whichever is the greater, but not both,’
[57] At [61] of the Trance 3 BP we invited interested parties to comment on the issue raised by CRA and on the amendments proposed.
[58] ABI made the following submission in relation to the issue raised by CRA:
‘ABI and NSWBC acknowledge that the terms of the exposure draft do not depart from the existing provisions in the modern award.
Despite this, our clients consider the CRA submission to have merit.
ABI and NSWBC agree that is unusual for a modern award to entitle employees on paid annual leave to both the shift rates they would have received had they not been on leave and a 17.5% loading.
This position was expressed by the Full Bench at [184] in the Payment of Wages decision handed down on 1 December 2016.
In this decision, the Full Bench considered annual leave loading clauses in the Joinery Award 2010, the Food, Beverage and Tobacco Manufacturing Award 2010 and the Electrical, Electronic and Communications Contracting Award 2010.
These clauses could be read as entitling employees to payment of both a shift loading and an additional annual leave loading (or a double shift loading).
The Full Bench found this to be “inconsistent with the norm expressed by the Commission in the 1971 Annual Leave Case” and considered it necessary to vary these clauses in order to meet the modern awards objective.
ABI and NSWBC support the nature of the variations proposed by CRA.
Our clients question whether the proposed wording of the new clause 18.3(c) sufficiently considers the fact that the exposure draft variously expresses payment for shift work as:
(a) ‘shift duty allowances’ to be paid as separate amounts in addition to the employee’s base rate of pay (e.g. clauses 32 and 45.2); and
(b) ‘shift penalties’ to be paid as total amounts in lieu of the employee’s base rate of pay (e.g. clauses 44 and 51).’ 15
[59] Consistent with the Statement 16 published on 20 December 2019, the issue raised by CRA should be pursued by a separate application to vary the award.
[60] ABI also noted that clause 44.4(b) of the Exposure Draft contains a typographical error – the word ‘sAn’ should be ‘An’. We agree and will make the correction.
[61] We propose to republish the Exposure Draft and draft variation determination to incorporate the amendments we have decided to make. We will then convene a conference to discuss the republished documents and the BCC’s proposed provision in respect of casual conversion.
3.4 Business Equipment Award 2010
[62] In its initial submission, Ai Group proposed that the words ‘in clause 14.2’ in the definition of ‘minimum hourly rate’ in clause 2 be replaced by ‘prescribed by this award’. In support of the proposed amendment Ai Group submitted:
‘The definition is problematic as it requires the calculation of the minimum hourly rate by reference to the weekly rates contained in clause 14.2. This excludes employees who are not entitled to those weekly rates, such as employees to whom clause 14.3 applies (Supported Wage System) and clause 14.4 applies (National Training Wage).’ 17
[63] At [64] of the Tranche 3 BP we expressed the provisional view that clause 14.2 be amended as proposed by Ai Group. No party opposed our provisional view. We confirm our provisional view and will amend the variation determination accordingly.
[64] There are no remaining drafting and technical issues in respect of this award.
3.5 Electrical, Electronic and Communications Contracting Award 2010
[65] In its initial submission, ABI submitted that the current Schedule B ‘could be articulated more clearly and there are a few errors in relation to method of calculating rates, relevant percentages applied and all-purpose allowances’. ABI identified the following issues, listed in order of appearance in Schedule B:
(a) the definition for ‘ordinary hourly rate’ in clause B.1.1 is different to the definition for ‘ordinary hourly rate’ in clause 2 of the Exposure Draft;
(b) Tables B.2.1, B.4.1, B.4.5 and B.4.9 set out ‘ordinary and penalty rates’ for other than shiftworkers and include a ‘public holiday’ column. Tables B.2.2, B.4.2, B.4.6 and B.4.10 set out ‘overtime rates’ for other than shiftworkers and also include the same ‘public holiday’ column. Replication of the ‘public holiday’ column may cause confusion for users of the Electrical Award;
(c) Table B.2.4 provides for ‘overtime rates’ but also includes a ‘public holiday’ column. The comment attached to the percentage set out in this column (namely 250%) indicates that it is from clause 20.4 of the Exposure Draft, however this is the incorrect percentage for all shiftworkers. Public holiday penalties for shiftworkers are contained in clause 13.15 of the Exposure Draft. The penalty which applies on a public holiday differs depending on whether the employee is a continuous shiftworker or other than a continuous shiftworker. The applicable penalties payable on a public holiday to both categories of shiftworkers are correctly outlined in the last column of Table B.2.3;
(d) clause B.3.2 of Schedule B for ‘casual shiftworkers’ includes a ‘day’ column. This is unnecessary, as the table is for shiftworkers, and rates applicable to day workers are already provided for in Table B.3.1;
(e) reference to the calculation of apprentice hourly rates for adults and juniors underneath clause B.4 of Schedule B is somewhat confusing. The adult apprentice rates are differentiated based on whether the apprentice commenced their apprenticeship before or, on or after, 1 January 2014. The junior apprentice rates are not expressed in the same manner, despite the fact that clause 16.4(a) of the Electrical Award specifies different rates for apprentices who commenced their apprenticeship before or, on or after, 1 January 2014. There should be consistency between these clauses; and
(f) underneath Table B.4.1, footnote 1 indicates that the apprentice hourly rate includes industry allowance, tool allowance and electrician’s licence allowance. However, clause 16.4(a)(iii) for junior apprentices, clause 16.4(b)(iii) and clause 16.4(b)(vi) for adult apprentice indicates that apprentices should be paid:
(i) the full amount of:
A. tool allowance in clause 18.3(g), which is an all-purpose allowance; and
B. fares allowance in clause 18.6(d); and
(ii) the percentages set out in clause 16.4 for the applicable apprentice of:
A. travel time allowance in clause 18.6(c);
B. electrician’s licence allowance in clause 18.3(b), which is an all-purpose allowance; and
C. industry allowance in clause 18.3(a), which is an all-purpose allowance.
[66] To resolve these issues ABI submitted that:
(a) the definition for ‘ordinary hourly rate’ in B.1.1 is amended to reflect the definition provided in clause 2 of the Exposure Draft; and
(b) Tables B.2.1, B.4.1, B.4.5 and B.4.9 are amended so that they only refer to ‘ordinary rates’ for other than shiftworkers. This requires:
(i) the words ‘and penalty’ to be deleted from the heading for B.2.1, B.4.1, B.4.5 and B.4.9; and
(ii) the ‘public holiday’ column be removed from the Tables in B.2.1, B.4.1, B.4.5 and B.4.9.
(c) Tables B.2.2, B.4.2, B.4.6 and B.4.10 be amended so it is ‘overtime and penalty rates’ for other than shiftworkers; and
(d) remove the ‘public holiday’ column from Table B.2.4 as the percentage provided for in this table is incorrect, and penalty rates for public holidays is already provided for in Table B.2.3; and
(e) remove the ‘day’ column from Table B.3.2 as this is unnecessary, as Table B.3.1 already provides for a day workers rates and Table B.3.2 is for casual shiftworkers; and
(f) remove paragraph 2 and 3 underneath Schedule B.4 Apprentice rates and replace with the following “the apprentice hourly rate for adult apprentices is calculated in accordance with clause 16.4(b)” to ensure consistency with junior apprentices; and
(g) depending on the Commission’s decision in relation to the all-purpose rate for apprentices, this might involve either:
(i) amending clauses 16.4(a)(iii), 16.4(b)(iii), 16.4(b)(iv), 16.4(b)(vi) and 16.4(b)(vii) so references to fares allowance in clause 18.6(d) and travel time allowance in clause 18.6(c) are removed; or
(ii) amending the footnotes for ‘apprentice hourly rate’ in Schedule B.4 so that it includes “full amount of tool allowance and fares allowance, and the relevant percentage as set out in clause 16.4 of the travel time allowance, electrician’s licence allowance and industry allowance”; and
(iii) amending the rates in the tables in Schedule B.4 so it includes the fares allowance, and percentage of the travel time allowance.
[67] At [83] of the Tranche 3 BP we invited interested parties to comment on the amendments proposed by ABI. We also noted that in relation to [80](a), Schedule B.1.1 does not contain a definition of ‘ordinary hourly rate’ as such, but simply explains the basis for the calculation of the rates in the table.
[68] Ai Group agrees with ABI’s submissions, except as set out below:
‘Ai Group proposes that whilst there is a difference between the definition of “hourly rate” in clause B.1.1 and that contained in the definition, we do not see that this is likely to cause any conflict. The schedules appropriately reflect the inclusion of tool allowances where payable and exclude all other all-purpose allowances. An explanation is reflected in the notation under the tables.
If there is any confusion, Ai Group proposes that clause B.1.1 be amended to include the words “ as set out in this schedule” after the words “Ordinary hourly rate” so as to read “Ordinary hourly rate, as set out in this schedule, includes the industry allowance (clause 18.3(a)) and tool allowances as applicable (clause 18.3(g)) which are payable for all purposes”.’ 18
[69] The CEPU opposes ABI’s proposed amendment on the following basis:
‘The CEPU opposes the proposed amendment detailed in [paragraph 21(g)(i) above] to clauses 16.4(a)(iii), 16.4(b)(iii), 16.4(b)(iv), 16.4(b)(vi) and 16.4(b)(vii) on the basis that by deleting reference to fare allowance in clause 18.6(d) and travel allowances in clause 18.6(c), in the above mentioned clauses, may result in employers failing to pay the said allowances all together or, at the very least, cause confusion as to how the travel time allowance in clause 18.6(c) will be paid to apprentices.
Example of ABI’s Proposal to Clause 16.4(iii):
In addition to the minimum wage payments arising from clause 16.4(a), apprentices will be paid the full amount of the tool allowance in clause 18.3(g) and the fares allowances in clause 18.6(d) and the percentages shown in clause 16.4(a) of the electrician’s licence allowance in clause 18.3(b), the travel time allowance in clause 18.6(c) and the industry allowance in clause 18.3. These weekly payments in total will form the all-purpose rate to be paid to an apprentice. The weekly all-purpose rate of pay is payable for all purposes of the award and will be included as appropriate when calculating payments for overtime, all forms of paid leave, annual leave loading, public holidays and pro rata payments on termination. Any other special allowances in clauses 18.4 and 18.5 and allowances for travel and expenses in clauses 18.6 and 18.7 will be paid to apprentices on an ‘as incurred’ basis at the rate specified, subject to clause 18.2(b).
Currently, apprentices receive the percentage shown in clause 16.4(a) and 16.4(b)(ii) of the travel time allowance in clause 18.6(c). The calculation of how much of the travel time allowance an apprentice is to receive is detailed in clauses 16.4(a)(iii), 16.4(b)(iii), 16.4(b)(iv) and16.4(b)(vi) and not in clause 18.6(c). Further, no other clauses in the Electrical Contracting Award apart from clauses 16.4(a) and (b) specify that an apprentice is to receive a percentage shown in clauses 16.4(a) and 16.4(b)(ii) of the travel time allowance in clause 18.6(c).’ 19
[70] The CEPU opposes ABI’s proposal:
‘The CEPU opposes ABI’s proposal on the basis of that correctly noted by the Commission at paragraph 83 of the Background Paper, which states that ‘Schedule B.1.1 does not contain a definition of ‘ordinary hourly rate’ as such, but simply explains the basis for the calculation of the rates in the table.’
The CEPU submits that to maintain clarity and consistency with the foot notes which appear in Schedule B with respect to the basis for the calculations in the rates tables in Schedule B, the wording in Schedule B.1.1 should be amended as follows:
Ordinary hourly rate includes the industry allowance (clause 18.3(a)) and for grade 5 and higher classifications the tool allowances as appliable (clause 18.3(g)) which are payable for all purposes.’ 20
[71] In the updated Exposure Draft, the Commission asked the parties to consider whether the fares allowance in clause 18.6(d) and travel time allowance in clause 18.6(c) should be included in the all-purpose rate for apprentices.
[72] In relation to the all-purpose rate for apprentices, ABI submitted that the fares allowance and travel time allowance should not be included, because:
(a) neither allowance falls within clause 18.3 all-purpose allowances;
(b) clause 18.6(d) clearly states that fares allowance only applies where an employee is required to start and/or cease work on a job site, which may not always be applicable;
(c) clause 18.6(c) clearly outlines the circumstances in which the travel time allowance must be paid, namely each day an employee presents to work and when an employee takes an RDO;
(d) clause 18.6(g) provides that the allowances in clause 18.6, which encompasses both the fares allowance in clause 18.6(d) and travel time allowance in clause 18.6(c) are not to be taken into account when calculating overtime penalty rates, annual leave, personal/carer’s leave, long service leave or public holiday payments; and
(e) the wording of the Exposure Draft does not indicate that clauses 18.6(c) and 18.6(d) should be applied any differently in relation to apprentices, particularly when these clauses are read in conjunction with clause 18.6(g) and clause 16.4(a).
[73] In relation to the question posed in the Exposure Draft, Ai Group submitted that the fares allowance (in clause 18.6(d)) and the travel time allowance (in clause 18.6(c)) should not be included in the all purpose rate:
‘…An all-purpose rate is paid not only for time worked but also on certain forms of paid leave under the award (including annual leave and personal/carer’s leave), on public holidays not worked and where payment is made in lieu of notice upon termination.
Clause 18.6(c) clearly stipulates that the allowance is paid only on days the employee presents themselves for work and on rostered days off. It is not intended to be paid under any other circumstance. It therefore should not be included in the all-purpose rate.
Clause 18.6(d) similarly is an allowance that is payable when the employee is actually working and required to start or cease work on a job site. This allowance is not intended to be paid under any other circumstance. It therefore should not be included in the all-purpose rate.’ 21
[74] At [88] of the Tranche 3 BP we invited other interested parties to comment on the submissions of ABI and Ai Group in respect of whether the fares allowance in clause 18.6(d) and the travel time allowance in clause 18.6(c) should be included in the all-purpose rate for apprentices. We also invited ABI to propose an amendment to address the issue it has raised.
[75] ABI agrees with the Ai Group’s submission and in response to the Commission’s invitation, proposed that the issue could be addressed by removing references to ‘fares allowance’ and ‘travel time allowance’ in clauses 16.4(a)(iii), 16.4(b)(iii), 16.4(b)(iv) and 16.4(b)(vii).
[76] The CEPU proposes that rather than removing references to fares allowance and travel time allowance from clauses 16.4(a)(iii), 16.4(b)(iii), 16.4(b)(iv), 16.4(b)(vi) and 16.4(b)(vii), that clause 16.4(a)(iii) be reverted back to the wording of the current version of the Electrical Contracting Award.
‘The wording of clause 16.4(a)(iii) and 16.4(a)(iv) in the current Electrical Contracting Award accurately and clearly categorises and describes the fare and travel allowance as well as the all purpose allowances payable to apprentices and therefore should remain unchanged.
The CEPU submits clause 16.4(a)(iii) of the exposure draft should be amended as follows:
CEPU Proposed Amendment to Clause 16.4(a)(iii):
Delete clause 16.4(a)(iii) as it appears in the Exposure draft and insert the following:
(iii) In addition to the minimum wage payments arising from clause 16.4(a), apprentices will be paid the full amount of the tool allowance in clause 18.3(g) and the fares allowances in clause 18.6(d) and the percentages shown in clause 16.4(a) of the electrician’s licence allowance in clause 18.3(b), the travel time allowance in clause 18.6(c) and the industry allowance in clause 18.3. Any other special allowances in clauses 18.4 and 18.5 and allowances for travel and expenses in clauses 18.6 and 18.7 will be paid to apprentices on an ‘as incurred’ basis at the rate specified, subject to clause 18.2(b).
(iv) The all-purpose rate to be paid to an apprentice will be the sum of the minimum wage rate arising from clause 16.4(a), the full amount of the tool allowance in clause 18.3(g) and the percentages shown in clause 16.4(a) of the electrician’s licence allowance in clause 18.3(b), and the industry allowance in clause 18.3. The weekly all-purpose rate of pay is payable for all purposes of the award and will be included as appropriate when calculating payments for overtime, all forms of paid leave, annual leave loading, public holidays and pro rata payments on termination.’ 22
[77] The CEPU notes that at present clauses 16.4(b)(iii), 16.4(b)(iv), 16.4(b)(vi) and 16.4(b)(vii) of the exposure draft are consistent with the current Electrical Contracting Award. It is submitted that the current wording of clauses 16.4(b)(iii), 16.4(b)(iv), 16.4(b)(vi) and 16.4(b)(vii) should be retained.
[78] Further, should fares allowance in clause 18.6(d) and travel time allowance in clause 18.6(c) be found not to be included as all-purpose allowances for the purposes of clauses 16.4(a) and 16.4(b), then the CEPU proposes amending the footnotes for ‘apprentice hourly rates’ in Schedule B.4 as follows:
Apprentice hourly rate includes the industry allowance, tool allowance and electricians licence allowance payable to all employees for all purposes. Any additional all-purpose allowances applicable need to be added to these rates.
‘The removal of the words ‘all purpose’ from the last line of the footnotes will allow the footnote to capture all other allowances to be paid in addition to the apprentices’ hourly rate including the fare and travel time allowance.’ 23
[79] At [89] – [90] of the Tranche 3 BP, we agreed with Ai Group that the reference in the last sentence of clause 21.4(b) to clause 21.4 is an error and the correct reference is to clause 21.2. We will amend the Exposure Draft and draft variation determination accordingly.
[80] A conference will be convened shortly to discuss the disputed issues set out above.
3.6 Fitness Industry Award 2010
[81] Submissions were received from ABI 24 and the Australian Swim Schools Association (ASSA).25
[82] ABI agreed with our provisional view that the variation of the award in accordance with the draft variation determinations is necessary to achieve the modern awards objective.
[83] ASSA agreed with the submission of ABI, but raised the issues set out below.
(i) Clause 12.3
[84] Clause 12.3 of the Exposure Draft states:
12.3 Minimum engagement
(a) Subject to clauses 12.3(b) and 25.3, a casual employee must be engaged for a minimum period of 3 hours’ work at the appropriate rate or be paid per engagement for a minimum of 3 hours at the appropriate rate.
(b) Notwithstanding clause 12.3(a) and subject to clause 25.3, a casual employee who is classified as a Level 2, 3, 3A, 4, 4A or 5 instructor, trainer or tennis coach or as a student undertaking practical work involvement may be engaged for a minimum period of one hour’s work at the appropriate rate or be paid per engagement for a minimum of one hour’s work at the appropriate rate.
[85] ASSA raised two issues in relation to clause 12.3. First, they submitted that the drafting of clause 12.3 (minimum engagement), paragraphs (a) & (b) would be enhanced by deletion of the references to “clause 25.3” which appears in both. ASSA submitted that the payment (clause 12.2 (b) (ii)) and minimum engagement (clause 12.3 (b)) of casuals on public holidays is already addressed adequately.
[86] Clause 25.3 is set out below:
25.3 Payment for working on a public holiday
(a) A full-time or part-time employee must be paid at the rate of 250% of the minimum hourly rate for all hours worked on a public holiday. An employee required to work on a public holiday must be engaged or be paid for at least 4 hours’ work.
(b) Payment for a casual employee working on a public holiday is in accordance with clause 12.2(b).
[87] Clause 12.2(b) is set out below:
(b) For each ordinary hour worked on Saturday, Sunday or a public holiday, a casual employee must be paid in accordance with Schedule B—Summary of Hourly Rates of Pay (B.2—Casual employees):
(i) the minimum hourly rate; and
(ii) a loading of 30% of the minimum hourly rate, for the work being performed.
[88] We agree with ASSA that the reference to clause 25.3 is unnecessary and it is our provisional view that it should be deleted. It is also our provisional view that the words ‘notwithstanding clause 12.3(a)’ should also be deleted from clause 12.3(b) as they are unnecessary.
[89] The second issue raised by ASSA related to the words ‘as a student’ in clause 12.3(b). ASSA submitted that as a consequence of the amendments made by the substantive issues Full Bench 26, the wording of the ‘Classification Definitions’ (Schedule A) relating to levels 1 & 2 have been modified. ASSA submitted that the phrase “as a student” should be replaced by ‘as a trainee’ because the word ‘student’ does not appear in the Schedule A in the Exposure Draft, whereas ‘training’ is used at a multiplicity of points. We agree. It is our provisional view that clause 12.3(b) should be amended as suggested by ASSA.
[90] It is our provisional view that clause 12.3 be amended as followed:
12.3 Minimum engagement
(a) Subject to clauses 12.3(b) and 25.3, a casual employee must be engaged for a minimum period of 3 hours’ work at the appropriate rate or be paid per engagement for a minimum of 3 hours at the appropriate rate.
(b) Notwithstanding clause 12.3(a) and subject to clause 25.3,aA casual employee who is classified as a Level 2, 3, 3A, 4, 4A or 5 instructor, trainer or tennis coach or as a studenttrainee undertaking practical work involvement may be engaged for a minimum period of one hour’s work at the appropriate rate or be paid per engagement for a minimum of one hour’s work at the appropriate rate.
(ii) Casual loading
[91] ASSA submitted 27 that the wording of clause 7.4(b) (Casual loading), has the potential for misunderstanding and therefore misapplication. This clause was subsequently renumbered as clause 12.2 and is set out in full below:
12.2 Casual loading
(a) For each ordinary hour worked on Monday to Friday, a casual employee must be paid in accordance with Schedule B—Summary of Hourly Rates of Pay (B.2—Casual employees):
(i) the minimum hourly rate; and
(ii) a loading of 25% of the minimum hourly rate, for the work being performed.
(b) For each ordinary hour worked on Saturday, Sunday or a public holiday, a casual employee must be paid in accordance with Schedule B—Summary of Hourly Rates of Pay (B.2—Casual employees):
(i) the minimum hourly rate; and
(ii) a loading of 30% of the minimum hourly rate, for the work being performed.
[92] ASSA submitted that the reference to “….a casual employee must be paid in accordance with Schedule B (B.2) Casual employees” may, reasonably be construed as requiring additional consideration by reference to (i) and (ii): “The minimum hourly rate; and a loading of XX% of the minimum hourly rate.” They submitted that there is potential for ‘double counting’ and that the clause should be redrafted to decouple the reference to the schedule and the explanation of how the rates in the schedule have been established.
[93] It seems unlikely that the clause would be construed as requiring the payment of the both the amount in Schedule B and the amounts in the clauses themselves, however, we think the reference to Schedule B is unnecessary and it is our provisional view that the clause should be amended as follows:
12.2 Casual loading
(a) For each ordinary hour worked on Monday to Friday, a casual employee must be paid in accordance with Schedule B—Summary of Hourly Rates of Pay (B.2—Casual employees):
(i) the minimum hourly rate; and
(ii) a loading of 25% of the minimum hourly rate, for the work being performed.
(b) For each ordinary hour worked on Saturday, Sunday or a public holiday, a casual employee must be paid in accordance with Schedule B—Summary of Hourly Rates of Pay (B.2—Casual employees):
(i) the minimum hourly rate; and
(ii) a loading of 30% of the minimum hourly rate, for the work being performed.
(iii) Summary of monetary allowances
[94] The note at clause 17.1 provides
NOTE: See Schedule C—Summary of Monetary Allowances for a summary of monetary allowances and method of adjustment. Employees engaged under clause 11—Part-time employees, shall be paid all allowances on a pro rata, hourly, basis. Employees engaged other than on a full-time basis under clause 10— Full-time employees shall be paid pro rata the wage-related allowances detailed in clause 17.2(a).
[95] ASSA submitted that Schedule C – (Summary of Monetary Allowances) (C.1), should be amended by adding a further column detailing the ‘hourly’ rates applicable to the three categories of Leading hands and supervisors allowances for employees other than full-time employees. The relevant table is set out below:
Allowance | Clause | % of standard rate | $ | Payable |
Leading hands and supervisors, in charge of—1 to 5 employees | 17.2(a) | 3.00 | 24.56 | per week |
Leading hands and supervisors, in charge of—6 to 10 employees | 17.2(a) | 4.10 | 33.56 | per week |
Leading hands and supervisors, in charge of—More than 10 employees | 17.2(a) | 5.50 | 45.02 | per week |
Broken shift allowance | 17.2(b) | 1.70 | 13.91 | per day |
First aid allowance | 17.2(c) | 0.32 | 2.62 | per day |
[96] We agree. It is our provisional view that the table should be amended as follows:
Allowance | Clause | % of standard rate | $ | Payable |
Leading hands and supervisors, in charge of—1 to 5 employees—Full-time | 17.2(a) | 3.00 | 24.56 | per week |
Leading hands and supervisors, in charge of—1 to 5 employees—Other than full-time | 17.2(a) | Weekly allowance /38 | 0.65 | per hour |
Leading hands and supervisors, in charge of—6 to 10 employees—Full-time | 17.2(a) | 4.10 | 33.56 | per week |
Leading hands and supervisors, in charge of—6 to 10 employees—Other than full-time | 17.2(a) | Weekly allowance /38 | 0.88 | per hour |
Leading hands and supervisors, in charge of—More than 10 employees—Full-time | 17.2(a) | 5.50 | 45.02 | per week |
Leading hands and supervisors, in charge of—More than 10 employees—Other than full-time | 17.2(a) | Weekly allowance /38 | $1.18 | per hour |
Broken shift allowance | 17.2(b) | 1.70 | 13.91 | per day |
First aid allowance | 17.2(c) | 0.32 | 2.62 | per day |
[97] We propose to republish the Exposure Draft and draft variation determination in accordance with the provisional views we have expressed above. Interested parties will have an opportunity to comment on the revised Exposure Draft and draft variation determination.
3.7 Food, Beverage and Tobacco Manufacturing Award 2010
[98] In its initial submission the AMWU raised three issues.
(i) Annual close down
[99] Clause 25.11 of the Exposure Draft provides for an employer to close down their enterprise or a part of it in certain circumstances, as follows:
‘Notwithstanding section 88 of the Act and clause 25.5, an employer may close down an enterprise or part of it for the purpose of allowing annual leave to all or the majority of the employees in the enterprise or part concerned, provided that…’ 28
[100] The AMWU noted that the reference to clause 25.5 is an error, and the reference should instead be to clause 25.7. The AWU made the same point.
[101] At [94] of the Tranche 3 BP we said that we agreed with the AMWU and would amend the Exposure Draft and draft variation determination accordingly. Ai Group also agreed with the AMWU and the amendment proposed. We confirm that we will amend the variation determination as proposed by the AMWU.
(ii) Casual Employees
[102] Clause 10 of the Exposure Draft deals with casual employees and clauses 10.2 and 10.3 provides as follows:
10.2 A casual employee working ordinary time must be paid:
(a) the ordinary hourly rate prescribed in clause 14—Minimum wages and classifications for the work being performed; plus
(b) a casual loading of 25% of the ordinary hourly rate.
10.3 The loading constitutes part of the casual employee’s all-purpose rate. 29
[103] The AMWU raised two concerns with clause 10 as presently drafted:
(i) The clause does have an equivalent clause to clause 11.2(c) of the Manufacturing and Associated Industries and Occupations Award 2010 (Manufacturing Award) that clarifies that the rate resulting from the calculation required by 10.2 and 10.3 is the ‘casual ordinary hourly rate’.
(ii) The clause does not clarify that where employees are entitled to a penalty rate or shift loading, that penalty or loading is to be calculated as a percentage of the casual ordinary hourly rate and not the ordinary hourly rate.
[104] To address these issues, the AMWU proposed that clause 10 be amended consistent with the equivalent clause in the Exposure Draft for the Manufacturing Award, 30 as follows:
10.1 A casual employee is one engaged and paid as a casual employee.
10.2 A casual employee working ordinary time must be paid:
(a) the ordinary hourly rate prescribed in clause 14—Minimum wages and classifications for the work being performed; plus
(b) a casual loading of 25% of the ordinary hourly rate.
10.3 The loading constitutes part of the casual employee’s all-purpose rate.”
10.4 The resulting rate is the casual ordinary hourly rate.
10.5 Where this award refers to a penalty rate or shift loading as being calculated as a percentage of the ordinary hourly rate, that reference will (for a casual employee) instead be taken to be a reference to the casual ordinary hourly rate if the entitlement is applicable to a casual employee.
[105] The balance of clause 10 would be renumbered as a consequence of the proposed amendments.
[106] The AWU also raised an issue about clause 10.2 and submits that the clause should read:
‘A casual employee working ordinary time must be paid …’
[107] The AWU contended that there is no longer a dispute that the casual loading is payable on a compounding basis when overtime is worked. 31
[108] In the Tranche 3 BP we invited interested parties to comment on the amendments to clause 10 proposed by the AMWU and AWU. Ai Group did not oppose the amendments proposed.
[109] ABI did not oppose the nature of the amendments proposed by the AMWU which would essentially introduce a definition of ‘casual ordinary hourly rate’ to clause 10 (ProposedDefinition) and make it clear that penalty rates or shift loadings are be calculated on this basis. But, ABI noted that this would be inconsistent with the existing definition of ‘casual ordinary hourly rate’ in clause B.2.1 of the exposure draft (ExistingDefinition).
[110] Under the Existing Definition, all-purpose allowances do not form part of the ‘casual ordinary hourly rate’ but must be added to it prior to the calculation of penalties. Whereas, under the Proposed Definition, all purpose allowances are to be added to relevant hourly rate, prior to the calculation of the casual loading (by virtue of the interaction between clause 10.2 and the definition of ‘ordinary hourly rate’ in clause 2).
[111] ABI notes that this issue arises in part from clause 10.2 (a) which states that a casual employee is entitled to ‘the ordinary hourly rate prescribed in clause 14—Minimum wages and classifications’. Clause 14 prescribes ‘minimum hourly rates’ and not ‘ordinary hourly rates’.
[112] ABI proposes that clause 10 of the exposure draft be replaced with the following:
10.1 A casual employee is one engaged and paid as a casual employee.
10.2 A casual employee working ordinary time must be paid:
(a) the minimum hourly rate prescribed in clause 14—Minimum wages and classifications for the work being performed;
(b) a casual loading of 25% of the minimum hourly rate; and
(c) any all purpose allowances that apply to the employee under clause 20.2 – Wage-related allowances.
10.3 The loading in clause 10.2(b) and the allowances in clause 10.2(c) constitute part of the casual employee’s all-purpose rate.
10.4 The resulting rate is the casual ordinary hourly rate.
10.5 Where this award refers to a penalty rate or shift loading as being calculated as a percentage of the ordinary hourly rate, that reference will (for a casual employee) instead be taken to be a reference to the casual ordinary hourly rate if the entitlement is applicable to a casual employee.
[113] ABI does not support the AWU’s proposed amendments to clause 10.2. ABI accepts that there is no longer a dispute in relation to the calculation of overtime, but submits that the proposed changes are unnecessary, particularly, if the amount described by 10.2 becomes the definition for ‘casual ordinary hourly rate’.
(iii) Schedule B.2 Casual Adult Employees
[114] Schedule B sets out tables of rates that summarise the entitlements under the award. Clause B.2 deals with casual rates. Clause B.2.1 provides:
‘Casual ordinary hourly rate means the hourly rate for a casual employee for the employee’s classification prescribed by this award, inclusive of the casual loading which is payable for all purposes. Where an additional allowance is payable for all purposes in accordance with clause 20.2(a), this forms part of the employee’s casual ordinary hourly rate and must be added to the casual ordinary hourly rate prior to calculating penalties and overtime.
[115] The AMWU submitted that the difficulty with the above extract is that the rates in schedule B.2.1 are better described as casual minimum hourly rates, owing to the fact that the rates don’t include any all-purpose allowances other than the casual loading.
[116] The AMWU proposed that clause B.2.1 be varied consistent with the equivalent clause in the current Exposure Draft for the Manufacturing Award (clause C.3.1 in schedule C) to ensure consistency between clause 10.2 and B.2.1 and also between the Manufacturing and Food Awards.
[117] This would require an amendment to the Exposure Draft as follows:
‘Casual ordinary hourly rate means the hourly rate for a casual employee for the employee’s classification prescribed by this award, inclusive of the casual loading which is payable for all purposes. Where an additional allowance is payable for all purposes in accordance with clause 20.2(a), this forms part of the employee’s casual ordinary hourly rate and must be added to the casual ordinary hourly rate prior to calculating penalties and overtime.’
‘Casual minimum hourly rate includes the casual loading which is payable for all purposes. Where an allowance is payable for all purposes in accordance with clause 20.2(a), this forms part of an employee’s casual ordinary hourly rate and must be added to the applicable permanent minimum hourly rate in B.2. prior to the application of the 25% casual loading to form the casual employee’s ordinary hourly rate. The casual ordinary hourly rate applies for all purposes and is used to calculate penalties and overtime.’
[118] The cross reference in the parties’ submission (to clause 30.2) appears to be incorrect and the correct cross reference is to clause 20.2(a). The variation proposed would also require all the references in B.2 to ‘casual ordinary hourly rate’ to be changed to ‘casual minimum hourly rate’.
[119] The AWU submits that a casual overtime rates table can be inserted into Schedule B.2 in accordance with the agreed position concerning clause 10.2.
[120] At [109] in the Tranche 3 BP we invited interested parties to comment on the amendments proposed by the AMWU and AWU.
[121] ABI opposes the amendment sought by the AMWU on the basis that it seeks to change the method of calculating the ‘causal ordinary hourly rate’ and agrees with the AWU’s submission that a casual overtime rates table can be inserted to the award.
[122] A conference will be convened shortly to discuss the disputed issues in respect of casual employees.
3.8 Funeral Industry Award 2010
[123] The AWU notes that the headings for Part 3 – Hours of Work and Part 4 – Wages and Allowances do not appear in the body of the Exposure Draft. The Exposure Draft will be amended to correct this.
[124] In a statement on 26 November 2019 32 we outlined an outstanding issue in relation to the Funeral award, namely, the correct rates for afternoon shiftworkers working overtime. The issue arose due to an inconsistency between the rates in the Exposure Draft at clause 20.6 and the rates in the table at A.1.4 and A.1.5. The relevant clauses of the Exposure Draft are set out below:
20.5 Afternoon shift penalty rates
(a) A shiftworker whilst on afternoon shift will be paid 120% of the minimum hourly rate.
(b) A shiftworker on a non-continuing afternoon shift will be paid 150% of the minimum hourly rate for all ordinary hours worked during the shift.
20.6 Overtime for shiftworkers—Afternoon shiftworker
(a) All time worked in excess of, or outside the ordinary working hours in clause 20.2 by a shiftworker, or on a shift other than a rostered shift, will be paid at 170% of the minimum hourly rate for the first 3 hours and 220% thereafter.
(b) When less than 7 hours 36 minutes’ notice has been given to the employer by a relief employee that they will be absent from work, and the employee whom the relief employee should relieve is not relieved and is required to continue to work on the employee’s rostered day off, the unrelieved employee will be paid 220% of the minimum hourly rate.
(c) Clause 20.6 operates to the exclusion of clause 20.5.
A.1.4 Full-time and part-time shiftworkers—overtime rates
Classification | Afternoon shift | Non-continuing afternoon shift1 | Monday to Friday – first 3 hours | Monday to Friday – after 3 hours |
% of minimum hourly rate | ||||
120% | 150% | 150% | 200% | |
$ | $ | $ | $ | |
Grade 1 | 23.39 | 29.24 | 29.24 | 38.98 |
Grade 2 | 24.07 | 30.09 | 30.09 | 40.12 |
Grade 3 | 24.98 | 31.23 | 31.23 | 41.64 |
Grade 4 | 25.85 | 32.31 | 32.31 | 43.08 |
Grade 5 | 27.24 | 34.05 | 34.05 | 45.40 |
Grade 6 | 28.09 | 35.12 | 35.12 | 46.82 |
1 Non-continuing afternoon shift means any afternoon shift which does not continue for at least 5 successive afternoons or for at least the number of ordinary hours prescribed by one of the alternative arrangements in clause 20.2 (see clause 20.5(b)).
A.1.4 Full-time and part-time shiftworkers—overtime from midnight Friday until midnight Sunday
Classification | Day shift (minimum hourly rate) | Afternoon shift – | Non-continuing afternoon shift1 – Saturday and Sunday | ||
First 3 hours | After 3 hours | First 3 hours | After 3 hours | ||
% of minimum hourly rate | |||||
100% | 170% | 220% | 200% | 250% | |
$ | $ | $ | $ | $ | |
Grade 1 | 19.49 | 33.13 | 42.88 | 38.98 | 48.73 |
Grade 2 | 20.06 | 34.10 | 44.13 | 40.12 | 50.15 |
Grade 3 | 20.82 | 35.39 | 45.80 | 41.64 | 52.05 |
Grade 4 | 21.54 | 36.62 | 47.39 | 43.08 | 53.85 |
Grade 5 | 22.70 | 38.59 | 49.94 | 45.40 | 56.75 |
Grade 6 | 23.41 | 39.80 | 51.50 | 46.82 | 58.53 |
1 Non-continuing afternoon shift means any afternoon shift which does not continue for at least 5 successive afternoons or for at least the number of ordinary hours prescribed by one of the alternative arrangements in clause 20.2 (see clause 20.5(b)).
[125] Submissions were received from the AWU 33 and AFEI.34
[126] AWU submit that this issue has been previously determined in the review in the following decisions:
• [2018] FWCFB 1548–Award stage–Group 4 decision.
• [2018] FWCFB 4175–Award stage–Group 4 decision.
• [2018] FWCFB 6852–Award stage–Group 4 decision.
[127] The AWU submit that, in line with the above decisions, the correct rates appear in clause 20.6 and the tables at clause A.1.4 should be amended as follows:
A.1.4 Full-time and part-time shiftworkers – overtime
Classification | Day shift – minimum hourly rate | Afternoon shift – Monday to Sunday – first 3 hours | Afternoon shift – Monday to Sunday – after 3 hours | Afternoon shift – work on an RDO when relief employee absent |
100% | 170% | 220% | 220% |
Classification | Non-continuing afternoon shift – Monday to Sunday – first 3 hours | Non-continuing afternoon shift – Monday to Sunday – after 3 hours | Non-continuing afternoon shift – work on an RDO when relief employee absent | All shiftworkers – public holiday – all day |
200% | 250% | 250% | 200% |
An explanatory footnote referring to clause 20.6(b) can be added for the ‘work on an RDO when relief employee absent’ rates.
(ii) Schedule A.1.5: The table set out below can be deleted:
Classification | Day shift (minimum hourly rate) | Afternoon shift – | Non-continuing afternoon shift1 – Saturday and Sunday | ||
First 3 hours | After 3 hours | First 3 hours | After 3 hours | ||
% of minimum hourly rate | |||||
100% | 170% | 220% | 200% | 250% | |
$ | $ | $ | $ | $ | |
Grade 1 | 19.49 | 33.13 | 42.88 | 38.98 | 48.73 |
Grade 2 | 20.06 | 34.10 | 44.13 | 40.12 | 50.15 |
Grade 3 | 20.82 | 35.39 | 45.80 | 41.64 | 52.05 |
Grade 4 | 21.54 | 36.62 | 47.39 | 43.08 | 53.85 |
Grade 5 | 22.70 | 38.59 | 49.94 | 45.40 | 56.75 |
Grade 6 | 23.41 | 39.80 | 51.50 | 46.82 | 58.53 |
(iii) Schedule A.2.2: Amend the heading of the ordinary hours column to read “Day shift – ordinary hours”. Delete the ‘Monday – Friday – first 3 hours’ and ‘Monday – Friday – after 3 hours’ columns and insert a ‘Public holiday – all day’ column with a rate of ‘225%’.’
[128] In the 26 November 2019 statement we set out the amendments proposed by the AWU and invited interested parties to file submissions by Friday 20 December 2019 and any submissions in reply by Friday 17 January 2020. A submission was received from the AFEI. 35
[129] AFEI do not agree with the amendments proposed by the AWU and submit that clauses 20.6 and 20.7 of the Exposure Draft, and the consequent table of rates should be amended to reflect an overtime loading of 150% for 3 hours and then 200% thereafter for all shiftworkers (except when working on an RDO when a relief employee is absent).
[130] The AFEI submit that the issue has not been finally determined and that the technical and drafting Full Bench only expressed provisional views and did not finalised these views.
[131] In a decision dated 7 August 2018 36, the Group 4 Award Stage Full Bench dealt with the issue as follows:
‘[264] The two possible methods of calculations are outlined below. The first method would occur if we adopted the AWU’s submission. The second method results if we adopt our provisional view.
Compounding calculation method
[265] If the term ‘applicable rate’ were to remain in clause 18.6, a new base rate of pay would effectively be created for a shiftworker (inclusive of their shift penalty). A shiftworker would therefore calculate their entitlement to overtime using a compounding method. In that scenario, an afternoon shiftworker would be entitled to base rate of 120% of the minimum hourly rate under clause 18.5(a), as well as an overtime rate of 150% of the minimum hourly rate for the first three hours and an overtime rate of 200% thereafter under clause 18.6(a). Consequently, the shiftworker working overtime will be entitled to 150% or 200% of their base rate of pay. In practice, that would mean that the shiftworker would receive 150% or 200% of the loaded hourly rate, resulting in a higher hourly rate.
[266] For example, if a shiftworker’s minimum rate is $18.93 per hour, that shiftworker would be entitled to a loaded hourly rate of 120%, being $22.72 per hour (the ‘applicable rate’). Using this interpretation, if that shiftworker’s afternoon shift also constitutes overtime, they would be entitled to receive either 150% or 200% of that ‘applicable rate’, amounting to $34.08 or $45.44 per hour.
Cumulative calculation method
[267] Alternatively, if clauses 18.6(a) and (b) of the exposure draft were amended by substituting the word ‘applicable rate’ with ‘minimum hourly rate’, then a shiftworker’s rate would be cumulative with their overtime rate. In effect, when a shiftworker is working overtime, they will be entitled to a shift work rate and an overtime rate, both of which are added to the minimum hourly rate.
[268] For example, if a shiftworker’s minimum rate is $18.93 per hour, and they are performing overtime during an afternoon shift, they would be entitled to an hourly penalty of either 170% or 220% of $18.29 in accordance with clauses 18.5(a) and 18.6(a), amounting to $32.18 and $41.65 per hour.
[269] We consider that the cumulative calculation method is the correct approach to the calculation. Adopting the compounding method of calculation would unduly result in an increase to the minimum overtime rates for afternoon shiftworkers.
[270] In accordance with our view in the March 2018 decision we will amend clauses 18.6(a) and (b) of the exposure draft by substituting the word ‘applicable rate’ with ‘minimum hourly rate’ to ensure that the calculation of overtime for shiftworkers is clearly payable at the minimum rate of pay for the applicable classification.
….
[275] It is our provisional view that clause 18.6 of the exposure draft be drafted in the following way:
18.6 Overtime for shiftworkers—Afternoon shiftworker
(a) All time worked in excess of, or outside the ordinary working hours in clause 18.2 by a shiftworker, or on a shift other than a rostered shift, will be paid at 170% of the minimum hourly rate for the first three hours and 220% thereafter.
(b) When less than 7 hours 36 minutes’ notice has been given to the employer by a relief employee that they will be absent from work, and the employee whom the relief employee should relieve is not relieved and is required to continue to work on the employee’s rostered day off, the unrelieved employee will be paid 220% of the minimum hourly rate.
(c) This clause operates to the exclusion of clause 18.5
18.7 Overtime for shiftworkers—Non-continuing afternoon shiftworker
(a) All time worked in excess of, or outside the ordinary working hours in clause 18.2 by a shiftworker on a non-continuing afternoon shift, or on a shift other than a rostered shift, will be paid at 200% of the minimum hourly rate for the first three hours and 250% thereafter.
37.2 The main body of the award describes conditions and arrangements that are common for all sectors.
37.3 The provisions of the main body of this award, as varied, will apply to persons performing work provided for in these schedules unless such provisions are inconsistent with the provisions of this clause.
[508] Clause 37 has not been replicated in the Exposure Draft.
[509] Whilst the CFMMEU acknowledged that clause 37 may no longer be relevant (in its totality), it submitted that its complete deletion may have unintended consequences. The CFMMEU submitted further that clause 37 remains an important provision and in principle, a term to this effect should be included in the Exposure Draft for the avoidance of doubt.
[510] At [432] of the Tranche 3 BP we said:
‘In a decision issued on 23 October 2015 81 a Full Bench decided to remove clause 37 from the award and we do not propose to reinsert it into the Exposure Draft.’
[511] We confirm that view.
[512] We note that on 20 March 2020 the Overtime and Casual Employment Full Bench issued a decision 82 and variation determination83 finalising the casual conversion clause in the Timber Award. We confirm that the Exposure Draft and variation determination will be updated to incorporate the casual conversion determination.
[513] We propose to republish the Exposure Draft and draft variation determination to incorporate the amendments we have decided to make. We will provide interested parties an opportunity to comment on the revised documents. A conference will be convened to discuss any outstanding issues.
3.24 Wine Industry Award 2010
[514] Ai Group, the SA Wine Industry Association and the AWU filed initial submissions in relation to this award.
[515] Ai Group raised the following drafting errors:
• Replacing 20XX with 2020 in the title and in clauses 14.6 [15.9], 17.6(c) and (d)
• Clause 20.1(b) is a duplicate of clause 20.1(a) and should be deleted.
[516] At [440] of the Tranche 3 BP we agreed with Ai Group. No party expressed a contrary view. We confirm our view and will amend the Exposure Draft and variation determination accordingly.
[517] Ai Group raised two other issues.
(i) Clause 17.4 Piecework rates
[518] Clause 17.4 states:
17.4 The following clauses of this award do not apply to an employee on a piecework rate:
(a) clause 13—Ordinary hours of work and rostering;
(b) clause 19.3(c)—Meal allowance;
(c) clause 23.3—Shiftworkers;
(d) clause 23.1—Day workers; and
(e) clause 22—Overtime.
[519] Clause 23.4 of the current award states:
23.4The following clauses of this award do not apply to an employee on a piecework rate:
(a) clause 24.3 – Meal allowance; and
(b) clause 28 – Ordinary hours of work and rostering; and
(c) clause 30 – Overtime and penalty rates
[520] Ai Group noted that clause 17.4 omits any reference to public holiday penalty rates and as a result, the Exposure Draft deviates substantially from the current clause 23.4. Ai Group proposed that this issue be resolved by deleting clause 17.4(d) and amending clause 17.4(c) so that it reads ‘clause 23 – Penalty rates’. At [445] of the Tranche 3 BP we agreed with Ai Group. However, as noted by the AWU, our acceptance of Ai Group’s submission is inconsistent with our provisional view to accept a submission by the SA Wine Industry Association. We agree with the AWU and for the reasons which follow we accept the submission put by the SA Wine Industry Association and will not make the amendment proposed by Ai Group.
[521] The SA Wine Industry Association raised a similar issue to that raised by Ai Group and proposed that clause 17.4 be amended as follows:
17.4 The following clauses of this award do not apply to an employee on a piecework rate:
(a) clause 13—Ordinary hours of work and rostering;
(b) clause 19.3(c)—Meal allowance;
(c) clause 22 – Overtime
(d) clause 23 – Penalty Rates
(c) clause 23.3—Shiftworkers;
(d) clause 23.1—Day workers; and
(e) clause 22—Overtime.
[522] At [458] of the Tranche 3 BP we agreed with the SA Wine Industry Association. No party expressed a contrary view. We confirm our view and will amend the Exposure Draft and variation determination accordingly.
(ii) Clause 17.6(d) Piecework rate
[523] Ai Group and the SA Wine Industry Association submitted that a similar issue arises in relation to clause 17.6(d) in that the clause omits any reference to public holiday penalty rates and as a consequence deviates substantially from the current clause 23.6. Ai Group proposed that this issue be resolved by deleting clause 17.6(d)(iv) and amending clause 17.6(d)(iii) so that it reads ‘Clause 23 – Penalty rates’.
[524] At [447] of the Tranche 3 BP we agreed with Ai Group. No party expressed a contrary view. We confirm our and will amend the Exposure Draft and variation determination accordingly.
[525] The SA Wine Industry Association raised four additional matters set out below.
(i) Clause 15 Minimum rates
[526] The matter raised concerns regarding clause 15.3. To provide some context we set out clauses 15.1 to 15.3:
15.1 An employer must pay adult employees, other than those listed in clause 15.3, the following minimum wages rates for ordinary hours worked by the employee:
Employee classification | Minimum weekly (full-time employees) | Minimum hourly rate |
$ | $ | |
Grade 1 | 751.50 | 19.78 |
Grade 2 | 784.00 | 20.63 |
Grade 3 | 816.60 | 21.49 |
Grade 4 | 862.50 | 22.70 |
Grade 5 | 916.60 | 24.12 |
NOTE: See Schedule B – Summary of Hourly Rates of Pay for a summary of hourly rates of pay including overtime and penaltiespenalty rates.
See Schedule B – Summary of Hourly Rates of Pay for a summary of hourly rates of pay including overtime and penalties.
15.2 For the purpose of clause 15.1, any entitlement to a minimum wage rate expressed to be by the week means any entitlement which an employee would receive for performing 385 ordinary hours of work.
15.3 The following adult employees are not entitlement to the minimum wages rates set out in the table at clause 15.1:
(a) an adult apprentice (see clause 16 – Apprentice ratesApprentice rates); or
(b) a trainee (see clause 15.9 – National training wageSchedule E); or
(c) an employee receiving a supported wage (see Schedule E – Supported Wage System).
[527] The Association proposed that for ‘the purposes of clarity’ an additional paragraph be added to clause 15.3, as follows:
‘(d) an employee that has agreed to a piecework rate in accordance with clause 17.’
[528] Clause 17 sets out the circumstances in which an employer and employee may enter into an agreement for the employee to be paid a piecework rate. The clause also deals with the content of such an agreement. For present purposes clauses 17.3 and 17.10 are particularly relevant:
17.3 An agreed piecework rate is paid instead of the minimum rates wages specified in clause 15—Minimum ratesMinimum rates.
…
17.10 Nothing in this award guarantees an employee on a piecework rate will earn at least the minimum weekly or hourly rate in this award for the type of employment and the classification level of the employee, as the employee’s earnings are contingent on their productivity.
[529] Given the terms of clauses 17.3 and 17.10 we expressed the provisional view (at [452] of the Tranche 3 BP) that clause 15.3 be amended as proposed by the Association.
[530] Ai Group supported our provisional view and the UWU did not oppose the provisional view.
[531] We confirm our provisional view and will amend clause 15.3 as proposed by the Association.
(ii) Clause 20 Accident pay
[532] Clause 20.1 Definitions provides:
20.1 Definitions
For the purposes of this clause 20, the following definitions will apply:
(a) Accident pay means a weekly payment made to an employee by the employer that is the difference between the weekly amount of compensation paid to an employee pursuant to the applicable workers’ compensation legislation and the weekly amount that would have been received had the employee been on paid personal leave at the date of the injury (not including over award payments) provided the latter amount is greater than the former amount.
(b) Accident pay means a weekly payment made to an employee by the employer that is the difference between the weekly amount of compensation paid to an employee pursuant to the applicable workers’ compensation legislation and the weekly amount that would have been received had the employee been on paid personal leave at the date of the injury (not including over award payments) provided the latter amount is greater than the former amount.
(c) Injury will be given the same meaning and application as applying under the applicable workers’ compensation legislation covering the employer.
[533] The Association notes that clause 20.1(b) simply duplicates clause 20.1(a) and proposes that clause 20.1(b) be deleted and clause 20.1(c) be renumbered 20.1(b).
[534] At [461] of the Tranche 3 BP we agreed with the Association. No party expressed a contrary view. We confirm our view and will delete clause 20.1(b) from the Exposure Draft and variation determination.
(iii) Clause 22.1(b) Overtime for part time employees
[535] Clause 22.1(b) provides:
(b) A part-time employee must be paid overtime rates in accordance with clause 22.2—Overtime rates for all time worked:
(i) outside of the spread of ordinary hours in clause 13.6; and/or
(ii) in excess of 38 ordinary hours per week; and/or
(iii) in excess of the ordinary hours provided for in clause 13—Ordinary hours of work and rostering. (Emphasis added)
[536] Clause 13.6 states:
13.6 Ordinary hours of work—day workers
(a) Ordinary hours are worked between the hours of 6.00 am and 6.00 pm, Monday to Friday, subject to the following exceptions:
(i) ordinary hours for an employee rostered to perform work in the cellar door are to be worked between 6.00 am and 6.00 pm, Monday to Friday, and 8.00 am and 6.00 pm on Saturday and Sunday; and
(ii) ordinary hours for an employee rostered to perform work in the vineyard are to be worked between 5.00 am and 6.00 pm, Monday to Saturday, during the period of the vintage.
(b) Vineyard employees during the vintage
(i) For the purposes of clause 13.6, vintage means a period not exceeding six6 months between November and June inclusive, which starts on the date when the harvest of wine grapes begins at a particular vineyard and ends on the date the last wine grapes are harvested at that vineyard.
(ii) The employer must make and retain a record of the beginning and end of each vintage in conjunction with relevant time and wages records.
(c) The spread of hours may be varied by agreement between an employer and the majority of employees in the relevant workplace or the section or sections of it.
[537] The comparable provision in the current award is clause 12.4(a), which states:
12.4 A part-time employee must be paid overtime rates in accordance with clause 30—Overtime and penalty rates for all time worked:
(a) outside of the spread of ordinary hours; and/or
[538] The Association submitted that:
‘The wording in the exposure clause is tighter than in the existing clause, which reads that overtime would apply to any hours worked outside of day work hours. This could be incorrectly interpreted to mean that any hours, including shiftwork ordinary hours, would attract overtime rates. Remove ‘in clause 13.6.’ This would allow for shift work and associated shift penalty rates to be paid.’ 84
[539] At [466] of the Tranche 3 BP we invited interested parties to comment on the Association’s submissions and proposed amendment.
[540] Ai Group did not oppose the changes proposed by the Association. ABI supported the proposed changes noting that they would reflect the terms of the current award.
[541] We agree and will make the changes proposed.
(iv) Clause 22.1(c) Overtime for casual employees
[542] Clause 22.1(c) provides:
(c) A casual employee must be paid overtime rates in accordance with clause 22.2—Overtime rates for all time worked:
(i) outside of the spread of ordinary hours in clause 13.6; and/or
(ii) in excess of 38 ordinary hours per week; and/or
(iii) in excess of the ordinary hours provided for in clause 13—Ordinary hours of work and rostering.
[543] The comparable provision in the current award is clause 13.4(a) which states:
13.4 Overtime
(a) A casual employee must be paid overtime rates in accordance with clause 30—Overtime and penalty rates for all time worked:
(i) outside of the spread of ordinary hours; and/or
(ii) in excess of 38 ordinary hours per week; and/or
(iii) in excess of the ordinary hours provided for in clause 28—Ordinary hours of work and rostering.
[544] The Association submits:
‘The wording in the exposure clause is tighter than in the existing clause, which reads that overtime would apply to any hours worked outside of day work hours. This could be incorrectly interpreted to mean that any hours, including shiftwork ordinary hours, would attract overtime rates. Remove ‘in clause 13.6’. This would allow for shift work and associated shift penalty rates to be paid.’ 85
[545] At [470] of the Tranche 3 BP we invited interested parties to comment on the Association’s submissions and proposed amendment.
[546] Ai Group did not oppose the changes proposed by the Association. ABI supported the proposed amendment noting that it reflected the terms of the current award.
[547] The UWU submits:
‘In relation to the proposed clause 22.1(c) of the text of the exposure draft does reflect the equivalent provision in the current award at clause 13.4(a). The concern of the Association appears to relate to what is in the current text of the award an ambiguity as to whether overtime is paid when a casual employee is working shift work. The reference to clause 13.6 should not be deleted in the exposure draft as clause13.6 indicate what are ordinary hours for employees covered by this Award. The inclusion of this reference does not ‘tighten’ the clause but makes it easier to use. The reader is referred to a relevant definition of ordinary hours.
The concerns raised by the Association are not issues that we have come across in South Australia where we have many members covered by this award. The Award is complex, in part due to the seasonal nature of the work and that there are seasonal periods of unpredictable ad hoc work during vintage. It is our view that the current drafting reflects the current award and is in fact clearer and it is not appropriate to attempt to resolve a theoretical ambiguity that is not, to our knowledge, a real industrial concern, at this stage of the review.’ 86
[548] This matter will be discussed at a conference to be convened shortly.
[549] The AWU raised two issues.
(i) Clause 24.4
[550] Clause 24.4 provides:
24.4 Annual leave loading
During a period of annual leave an employee must be paid a shift penalty, in addition to their base rate of pay as referred to in section 90(1) of the Act, as follows:
(a) Day work
An employee who would have worked on day work only had they not been on leave must be paid a loading equal to 17.5% of their base rate of pay as referred to in section 90(1) of the Act or the relevant weekend penalty rates, whichever is the greater but not both.
(b) Shiftwork
An employee who would have worked on shiftwork had they not been on leave must be paid a loading equal to 17.5% of their base rate of pay as referred to in section 90(1) of the Act or the shift penalty including relevant weekend penalty rates, whichever is the greater but not both.
(c) Piecework
An employee on a piecework rate must be paid a loading equal to 20% of their base rate of pay.
[551] Clause 31.4 of the current award provides:
31.4 Annual leave loading
During a period of annual leave an employee must be paid a loading, in addition to their base rate of payas referred to in s.90(1) of the Act, as follows:
(a) Day work
An employee who would have worked on day work only had they not been on leave must be paid a loading equal to 17.5% of their base rate of payas referred to in s.90(1) of the Act or the relevant weekend penalty rates, whichever is the greater but not both.
(b) Shiftwork
An employee who would have worked on shiftwork had they not been on leave must be paid a loading equal to 17.5% of their base rate of payas referred to in s.90(1) of the Act or the shift loading including relevant weekend penalty rates, whichever is the greater but not both.
(c) Piecework
An employee on a piecework rate must be paid a loading equal to 20% of their base rate of pay.
[552] The AWU submitted that it is unclear why the leave loading has been referred to as a ‘shift penalty’ in clause 24.4 of the Exposure Draft when it is referred to as a ‘loading’ in clause 31.4 of the current award.
[553] At [475] of the Tranche 3 BP we dealt with this issue, as follows:
‘The reference to the ‘shift loading’ in clause 24.4 has been amended to ‘shift penalty’ to reflect changes in terminology throughout the exposure draft. All references to ‘shift loadings’ in the exposure draft have been changed to ‘shift penalties’ and clause 24.4 has been amended so that the terminology is used consistently. We do not propose to make any amendment to clause 24.4.’
[554] No party has expressed a contrary view. We confirm that we do not propose to amend clause 24.4.
(ii) Schedule B.2.3
[555] The AWU submits that there is ‘no dispute’ 87 that the 25% casual loading is only paid when overtime is worked on a Sunday or public holiday, as per clause 22.1(d) and on that basis the rates table that had been deleted can be re-inserted. The Association agrees that the rates can be reinserted and that ‘the 25% casual loading is only paid when overtime is worked on a Sunday or public holiday’. We agree and will reinsert the rates table.
[556] We propose to republish the Exposure Draft and draft variation determination to incorporate the amendments we have decided to make. We will provide interested parties an opportunity to comment on the revised documents. A conference will be convened to discuss any outstanding issues.
4. Next Steps
[557] We turn first to the timing of any final variation determinations.
[558] As noted in the Tranche 3 BP, Ai Group submitted that a period of not less than three months should be allowed to lapse between the issue of a final determination by the Commission varying each Tranche 3 award to reflect the final iteration of the Exposure Draft and the date upon which those variations commence operation.
[559] During the finalisation of Tranche 2 awards, we issued our decision on 24 December 2019. Final variation determinations were then issued on 14 February 2020, 7 weeks after the decision. Tranche 2 awards that were not contested will have an operative date of 13 April 2020, which is 8 weeks after the final variation determinations were issued. Awards that were contested will have an operative date of 4 May 2020 which is 11 weeks after the final variation determinations were issued.
[560] At [13] of the Tranche 3 BP we invited all interested parties to comment on the ‘timing issue’ in their reply submissions.
[561] In its reply submission, ABI recognised that there are benefits in allowing time for parties to prepare for the introduction of the updated awards, particularly given the ongoing COVID-19 pandemic and the disruption this has caused to workplaces across Australia.
[562] ABI also pointed to the fact that the end of financial year can be a busy time for employers and consider it preferable that the awards are not varied during this period. The timing of the Annual Wage Review decision was also a factor. ABI concluded that:
‘There may be merit in waiting until after any annual wage review decision has taken effect before issuing the final determinations.’ 88
[563] We agree with ABI and have taken these considerations into account.
[564] We note that since the publication of the Tranche 3 Exposure Drafts and draft variation determinations, Full Bench decisions have been published in respect of the following Tranche 3 awards:
• Amusement, Events and Recreation Award 2010 89
• Broadcasting, Recorded Entertainment and Cinemas Award 2010 90
• Health Professionals and Support Services Award 2010 91
• Horse and Greyhound Training Award 2010 92
• Journalists Published Media Award 2010 93
• Marine Towage Award 2010 94
• Miscellaneous Award 2010 95
• Ports, Harbours and Enclosed Water Vessels Award 2010 96
• Professional Employees Award 2010 97
• Seagoing Industry Award 2010 98
• Sugar Industry Award 2010 99
• Supported Employment Services Award 2010 100
• Timber Industry Award 2010 101
[565] On 8 April 2020, the Commission issued a Decision varying 99 modern awards to include a new Schedule X-Additional measures during the COVID-19 pandemic. 102 Schedule X operates until 30 June 2020 unless extended. The relevant exposure drafts in category 1 below will be updated to include the new Schedule X.
[566] The Exposure Drafts and draft variation determinations will be updated to reflect the outcome of these Full Bench decisions where final determinations have been issued and any other decisions varying a Tranche 3 award.
[567] We propose to divide the Tranche 3 awards into five categories.
Category 1
[568] The awards in this category are uncontentious or have given rise to a limited number of issues which have now been resolved. The awards in this category are:
• Aircraft Cabin Crew Award 2010
• Amusement, Events and Recreation Award 2010
• Business Equipment Award 2010
• Dredging Industry Award 2010
• Health Professionals and Support Services Award 2010
• Horse and Greyhound Training Award 2010
• Journalists Published Media Award 2010
• Marine Tourism and Charter Vessels Award 2010
• Marine Towage Award 2010
• Miscellaneous Award 2010
• Pest Control Industry Award 2010
• Ports, Harbours and Enclosed Vessels Award 2010
• Professionals Employees Award 2010
• Seagoing Industry Award 2010
• Security Services Industry Award 2010
• Sugar Industry Award 2010
• Supported Employment Services Award 2010
[569] As mentioned earlier, in the January 2020 Decision we expressed the provisional view that the variation of the Tranche 3 modern awards in accordance with the draft variation determinations set out at Attachment C of that decision was, in respect of each of these awards, necessary to achieve the modern awards objective. In reaching that conclusion, we adopted the reasons set out in the decisions at Attachment B to the January 2020 Decision, in so far as they were relevant to each of the Tranche 3 modern awards and, in particular, to the considerations in ss 134(1)(a) to (h), which are addressed in each of those decisions.
[570] No submissions contested our provisional views in respect of each of the Category 1 awards set out above. We confirm our provisional views and will issue variation determinations in respect of each of these awards in the terms published on 29 January 2020 subject to the amendments necessary:
• to give effect of this decision;
• to incorporate the variations flowing from the Full Bench decisions referred to at [564];
• the correction of minor typographical errors and omissions (see [11] above); and
• any variations necessary to give effect to any subsequent Full Bench decisions.
[571] These variation determinations will be published by 30 April 2020 and will commence operation on 18 June 2020.
Category 2
[572] The Exposure Drafts and draft variation determinations in respect of these awards require significant amendment to reflect the outcome of this decision. The awards in this category are:
• Fitness Industry Award 2010
• Funeral Industry Award 2010
• General Retail Industry Award 2010
• Live Performance Award 2010
• Racing Clubs Events Award 2010
• Registered and Licensed Clubs Award 2010
[573] We propose to publish revised Exposure Drafts and draft variation determinations in respect of the category 2 awards by 30 April 2020 and will provide 14 days for interested parties to comment. We will then issue a decision finalising the variation determinations in respect of these awards.
Category 3
[574] Some outstanding issues remain in respect of the category 3 awards. The awards in this category are as follows:
• Broadcasting, Recorded Entertainment and Cinemas Award 2010
• Electrical, Electronic and Communications Contracting Award 2010
• Food, Beverage and Tobacco Manufacturing Award 2010
• Graphic Arts, Printing and Publishing Award 2010
• Horticulture Award 2010
• Telecommunications Services Award 2010
• Textile, Clothing, Footwear and Associated Industries Award 2010
• Timber Industry Award 2010
• Wine Industry Award 2010
[575] Conferences will be convened in respect of the disputed issues in the coming weeks.
Category 4
[576] The awards in this category (collectively, the Constructions Awards) are as follows:
• Building and Construction (General) On-Site Award 2010
• Joinery and Building Trades Award 2010
• Mobile Crane Hiring Award 2010
• Plumbing and Fire Sprinklers Award 2010
[577] A Statement and directions will be issued shortly in relation to the finalisation of the Exposure Drafts and draft variation determinations in respect of the Construction Awards.
Category 5
[578] The issues in respect of the Black Coal Mining Industry Award will be determined in accordance with the directions set out in a Statement published on 12 March 2020. 103
[579] A separate Statement will be issued in relation to the finalisation of the Exposure Draft and draft variation determination in respect of the Educational Services (Teachers) Award 2010.
[580] In relation to the Nurses Award, Ai Group and the ANMF are to file a joint note by 4pm on Friday 23 May 2020 indicating the terms of the Exposure Draft and draft variation determination which are related to AM2020/1. In July 2020, a revised Exposure Draft and draft variation determination will be published. A mention will then be held to set the timetable for parties to provide comments in relation to those aspects of the revised Exposure Draft and draft variation determination which are unrelated to AM2020/1.
PRESIDENT
Printed by authority of the Commonwealth Government Printer
<PR718511>
1 [2019] FWCFB 6077
2 [2020] FWCFB 421
3 [2020] FWCFB 1079
4 Building PR715725, Joinery PR715726; Mobile Crane PR715727 and Plumbing PR715728
5 [2020] FWCFB 1539
6 We note that a number of the draft variation determinations include a reference to ‘20XX’, this will be changed to ‘2020’.
7 The Qantas Group identified two drafting errors. At clause 2 Definitions – Calendar month definition including an exception for January in the first dot point of the definition. This should be deleted. At clause 7.4 the Facilitative provisions table should be updated to include: B.2.8 Days off – regional cabin crew An individual. We note that a separate Full Bench is dealing with some substantive claims in respect of this award (AM2020/3).
8 ABI notes that the Exposure Draft and draft variation determination variously refers to payments for shiftwork as ‘shift penalty rates’ (clauses 10.5, 12.4), ‘shift penalties’ (clause 16.2); ‘shift penalty payments’ (clause 18.8; ‘penalty rates’ (clause 19) and ‘shift rates’ (clause 31.1). ABI suggests that the term “shift penalty rate” should be used throughout the award for the purposes of consistency. We agree and will amend the draft variation determination accordingly.
9 The AWU points out that in cluse 4.5 the insertion of the word ‘that’ immediately follows the word ‘the’ and one of these words should be deleted.
10 Ai Group notes that in clause 20.3(c)(i) the cross reference should be to ‘clause 20.3(c)(ii)’ and not ‘clause 20.3(b)’. Ai Group also notes that the following corrections should be made to clause H.4.1(d)(ii) of Schedule H: (AQF Certificate Level I–II IV traineeship) where it appears in the clause and the Table 4 heading. AWU notes that there is a cross referencing error in clause 31.3(b)(iii), the cross reference should be to clauses 31.3(b)(i) and (ii).
11 [2020] FWCFB 1297
12 Ai Group submission, 13 November 2015.
13 BCC and others submission 3 March 2020 at 5.2
14 See [2020] FWCFB 1511; PR717665
15 ABI reply submission 7 April 2020 at paras. 13-21
16 [2019] FWC 8582
17 Ai Group submission 6 March 2020 at para.24
18 Ai Group submission in reply 7 April 2020 at paras. 9-10
19 CEPU submission in reply 7 April 2020 at paras. 11-12
20 CEPU submission in reply 7 April 2020 at paras 7-8
21 Ai Group submission 6 March 2020 at paras. 29-31
22 CEPU submission in reply 7 April 2020 at paras. 14-15
23 CEPU submission in reply 7 April 2020 at para. 18
24 ABI submission, 6 March 2020
25 ASSA submission, 30 March 2020
26 [2018] FWCB3914, PR608870
27 ASSA submission 19 March 2019
28 Exposure Draft – Food, Beverage and Tobacco Manufacturing Award 20XX dated 29 January 2020 clause 25.11.
29 Exposure Draft – Food, Beverage and Tobacco Manufacturing Award 20XX dated 29 January 2020 clause 10.2 and 10.3.
30 Manufacturing Award Exposure Draft
31 See [1.2] of this ABI correspondence:
[6]
of this FWC Statement: at [6].
32 [2019] FWCFB 8026
33 AWU submissions 9 October 2019 and 25 October 2019
34 AFEI submission, 23 December 2019
35 AFEI submission, 23 December 2019
36 [2018] FWCFB 4175
37 Ai Group reply submission 7 April 2020 at para [15]
38 Ai Group submission 22 April 2020 at para. 3
39 PHIEA submission, 4 March 2020
40 See [1.2] of this ABI correspondence:
[6]
of this FWC Statement: at [6].
41 AWU Reply submission 7 April 2020 at paras. 18-20
42 [2018] FWCFB 1548
43 [2020] FWCFB 1450
44 [2019] FWC 8318
45 AFEI submission 5 March 2020 at paras. 5-7
46 AFEI submission, 5 March 2020
47 [2020] FWCFB 1510
48 [2018] FWCFB 129
49 MAIL submission, 12 February 2018
50 MUA submission, 14 February 2018
51 [2020] FWCFB 1514
52 PR717671
53 Sections 134(1)(f) and 134(1)(g) of the Fair Work Act 2009 (Cth)
54 MIAL submission 4 March 2020 at paras 7-10
55 CFMMEU (Maritime Division) submission 7 April 2020 at para. 2
56 CFMMEU (Maritime Division) submission 7 April 2020 at para. 3
57 MIAL submission 4 March 2020 at paras 11-13
58 [2013] FWCFB 8338
59 Ai Group, Application to vary Nurses Award 2010, (14 January 2020) (AM2020/1)
60 ANMF submission 13 June 2019
61 Exposure Draft – Nurses Award – revised 22 February 2019
62 [2019] FWCFB 1716
63 ABI Reply submission 7 April 2020 at paras 63-64
64 See [1.2] of this ABI correspondence:
[6]
of this FWC Statement: at [6].
65 ABI/NSWBC Submissions dated 18 January 2017
66 AWU Submissions dated 20 January 2017
67 [2019] FWCFB 6953
68 UWU Reply submission 9 April 2020 at paras 17-21
69 CPSU Reply submission 7 April 2020 at para. 3
70 CPSU Reply submission 7 April 2020 at para. 4
71 ABI/NSWBC submissions dated 12 November 2019
72 CFMMEU-MD submissions dated 9 December 2019
73 CFMMEU (Manufacturing Division) submission, 6 March 2020, at para 33.
74 Sch. 5, Item 6 – Transitional Review of Modern Awards – Textile, Clothing, Footwear and Associated Industries Award 2010; [2013] FWCFB 5729 (4 October 2013); Hamberger SDP; Smith DP; Lee C. and Determination (PR542901) at item 24.
75 S.156 – 4 yearly review of modern awards – Textile, Clothing, Footwear and Associated Industries Award 2010; [2015] FWCFB 2831 (11 May 2015); Watson DP; O’Callaghan DP; Cribb C and Determination (PR563434) at item 8.
76 [2013] FWCFB 5729 at [67].
77 [2015] FWCFB 2831 at [123] – [129]
78 ABI submission 7 April 2020 at paras [75]-[79]
79 CFMMEU-MD Reply submission 9 April 2020 at paras. 19-26
80 HIA Reply submission 7 April 2020
81 [2015] FWCFB 7236 at [306] – [307]
82 [2020] FWCFB 1515
83 PR717674
84 Association submission, 4 March 2020 at paragraph 4
85 Ibid, at paragraph 5
86 UWU Reply submission 7 April 2020 at paras. 26-27
87 See [1.2] of this ABI correspondence:
[6]
of this FWC Statement: at [6].
88 ABI Reply submission 7 April 2020 at para. 10
89 [2020] FWCFB 1518
90 [2020] FWCFB 1511
91 [2020] FWCFB 1901
92 [2020] FWCFB 1901
93 [2020] FWCFB 1695
94 [2020] FWCFB 1450
95 [2020] FWCFB 1589
96 [2020] FWCFB 1450
97 [2020] FWCFB 2057
98 [2020] FWCFB 1450 and [2020] FWCFB 1514
99 [2020] FWCFB 450
100 [2020] FWCFB1704
101 [2020] FWCFB1515
102 [2020] FWCFB 1837
103 [2020] FWCFB 1297
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