[2019] FWCFB 8569

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
DEPUTY PRESIDENT CLANCY
COMMISSIONER BISSETT

MELBOURNE, 24 DECEMBER 2019

4 yearly review of modern awards – finalisation of Exposure Drafts and variation determinations – Tranche 2.

Chapters		Paragraph
1	Background	[1]
2	General issues	[7]
2.1 The Tranche 1 changes	[7]
2.2 Operative Date	[9]
2.3 Overtime for casuals	[13]
2.4 Expression of numbers	[15]
2.5 Coverage for Group Training Organisation	[19]
3	Correcting minor errors	[23]
4	The uncontentious awards	[27]
5	The Transport Group of Awards	[29]
5.2 Road Transport (Long Distance Operations) Award 2010	[31]
5.3 Road Transport and Distribution Award 2010	[48]
5.4 Transport (Cash in Transit) Award 2010	[87]
5.5 Waste Management Award 2010	[97]
6	Other Tranche 2 Awards – award specific issues
6.1 Airline Operations – Ground Staff Award 2010	[101]
6.2 Air Pilots Award 2010	[119]
6.3 Alpine Resorts Award 2010	[125]
6.4 Architects Award 2010	[128]
6.5 Asphalt Industry Award 2010	[132]
6.6 Cleaning Services Award 2010	[145]
6.7 Commercial Sales Award 2010	[151]
6.8 Concrete Products Award 2010	[154]
6.9 Contract Call Centres Award 2010	[166]
6.10 Dry Cleaning and Laundry Industry Award 2010	[171]
6.11 Educational Services (Schools) General Staff – Award 2010	[174]
6.12 Gas Industry Award 20102010	[201]
6.13 Higher Education Industry – General Staff – Award 2010	[204]
6.14 Hospitality Industry (General) Award 2010	[206]
6.15 Labour Market Assistance Industry Award	[216]
6.16 Local Government Award 2010	[223]
6.17 Manufacturing and Associated Industries and Occupations Award 2010	[244]
6.18 Meat Industry Award 2010	[309]
6.19 Pastoral Award 2010	[322]
6.20 Pharmaceutical Industry Award 2010	[363]
6.21 Poultry Processing Award 2010	[381]
6.22 Storage Services and Wholesale Award 2010	[387]
6.23 Vehicle Manufacturing, Repair, Services and Retail Award 2010	[393]
7	Conclusion	[395]

1. Background

[1] A decision issued on 2 September 2019 1 (the September 2019 Decision) outlined the process for finalising the Exposure Drafts produced in the 4 yearly review of modern awards (the Review) and the consequent variation of each modern award. This Full Bench (AM2019/17) has been constituted to oversee this process and for that purpose we have divided modern awards into 3 tranches. The awards in each tranche were set out at Attachment B to the September 2019 Decision.

[2] This Decision deals with the 41 2 awards in Tranche 2:

• Aboriginal Community Controlled Health Services Award

• Airline Operations—Ground Staff Award

• Air Pilots Award

• Airport Employees Award

• Alpine Resorts Award

• Architects Award

• Asphalt Industry Award

• Cleaning Services Award

• Clerks—Private Sector Award

• Commercial Sales Award

• Concrete Products Award

• Contract Call Centres Award

• Educational Services (Schools) General Staff Award

• Educational Services (Post-Secondary Education) Award

• Dry Cleaning and Laundry Industry Award

• Gas Industry Award

• Higher Education Industry—Academic Staff—Award

• Higher Education Industry—General Staff—Award

• Hospitality Industry (General) Award

• Hydrocarbons Field Geologists Award

• Labour Market Assistance Industry Award

• Local Government Industry Award

• Mannequins and Models Award

• Manufacturing and Associated Industries and Occupations Award

• Maritime Offshore Oil and Gas Award

• Meat Industry Award

• Pastoral Award

• Passenger Vehicle Transportation Award

• Pharmaceutical Industry Award

• Poultry Processing Award

• Professional Diving Industry (Industrial) Award

• Professional Diving Industry (Recreational) Award

• Rail Industry Award

• Restaurant Industry Award

• Road Transport (Long Distance Operations) Award

• Road Transport and Distribution Award

• Stevedoring Industry Award

• Storage Services and Wholesale Award

• Transport (Cash in Transit) Award

• Vehicle Manufacturing, Repair, Services and Retail Award

• Waste Management Award

[3] On 14 October 2019 Exposure Drafts were published for each of these awards with amendments made in tracked changes to show the changes made since the Exposure Draft was last published. Draft variation determinations in respect of each award were also published.

[4] In a decision issued on 14 October 2019 3 (the 14 October 2019 decision) we expressed the provisional view that the variation of the modern awards in Tranche 2 in accordance with the draft variation determinations was, in respect of each of these awards, necessary to achieve the modern awards objective. Interested parties were invited to comment on the provisional view in accordance with the timetable below:

Date	Event
14 October 2019	Publish final Exposure Drafts and draft variation determinations
27 November 2019	Parties to file submissions on final Exposure Drafts and draft variation determinations
9 December 2019	Parties to file submissions in reply
17 and 18 December 2019 4	Full Bench Hearing

[5] Submissions have been filed by:

• Association of Consulting Architects Australia (ACAA) on 27 November 2019

• Association of Independent Schools (AIS) on 27 November 2019

• Australian Business Industrial (ABI) on 27 November 2019 and 9 December 2019

• Australian Hotels Association (AHA) on 27 November 2019 and 9 December 2019

• Australian Industry Group (Ai Group) on 27 November 2019 and 9 December 2019

• Australian Manufacturing Workers’ Union (AMWU) on 27 November 2019, 27 November 2019 and 9 December 2019

• Australian Workers’ Union (AWU) on 27 November 2019 and 9 December 2019

• Construction, Forestry, Maritime, Mining and Energy Union – Manufacturing Division on 6 November 2019

• Federation of Parents and Citizens Associations of NSW on 5 December 2019

• Group of 8 Universities (Go8) on 27 November 2019

• Independent Education Union of Australia (IEU) on 5 December 2019 and 9 December 2019

• Local Government Associations (LGA) on 27 November 2019

• Motor Trades Organisations (MTO) on 27 November 2019 and 9 December 2019

• National Farmers’ Federation (NFF) on 27 November 2019

• National Road Transport Association (NatRoad) on 18 November 2019, 3 December 2019 (Road Transport and Distribution Award) and 3 December 2019 (Road Transport (Long Distance Operations) Award)

• Rail, Tram and Bus Union Australia (RTBU) on 27 November 2019

• Transport Workers Union (TWU) in relation to the following awards:

• Passenger Vehicle Transportation Award on 21 November 2019

• Airline Operations – Ground Staff Award on 21 November 2019

• Road Transport (Long Distance Operations) Award on 21 November 2019

• Waste Management Award on 21 November 2019

• Transport (Cash in Transit) Award on 21 November 2019

• Road Transport and Distribution Award on 21 November 2019

• Qantas on 26 November 2019

• Community and Public Sector Union (CPSU) on 9 December 2019

• United Workers’ Union (UWU) on 9 December 2019

[6] A Statement issued on 11 December 2019 5 (December 2019 Statement) summarised the submissions made and expressed a number of provisional views in respect of some of the points advanced. The issues raised in respect of the Tranche 2 awards were the subject of hearings at on Tuesday 17 December 2019 and Wednesday 18 December 2019.6

2. General issues

2.1 The Tranche 1 changes

[7] During the finalisation of Exposure Drafts in Tranche 1, we issued 2 decisions – one on 24 October 2019 7 (the 24 October Decision) and the other on 25 November 20198 (the 25 November Decision) – in which we determined that the following common drafting amendments would be made to all awards in Tranche 1:

• The removal of any contested overtime for casuals rates from the rates of pay Schedules (see [12] – [18] of the 24 October Decision).

• Casual conversion clauses in the 28 awards that had such clauses prior to the Casual and Part-time Decision 9 will not be redrafted during the review and the Exposure Drafts will be amended to re-insert the current award term10.

• The deletion of the ‘note’ in the Schedules of Rates (see [21] – [23] of the 24 October Decision).

• The year in the title of the award will be amended to 2020.

• In awards where the coverage clause refers to other modern awards, the year in the title of those awards will be amended to either 2010 or 2020 as appropriate.

• The reference to the summary of hourly rates of pay schedule in the minimum rates clause will be converted from an information box to a Note. The reference to ‘penalties’ in this note will be corrected to ‘penalty rates’.

• The reference to the Miscellaneous Award 20XX will be amended to Miscellaneous Award 2010. This will be varied to the Miscellaneous Award 2020 when the review of the Miscellaneous Award is finalised.

• Some formatting changes will be made to the summary of hourly rates of pay schedules to facilitate subsequent variation determinations following an Annual Wage Review. The content of these schedules will not be changed.

[8] In the December 2019 Statement we confirmed that each of these amendments would also be made to the Tranche 2 awards. In addition to those amendments, four general issues were raised in the submissions.

2.2 Operative Date

[9] Ai Group submit that a period of not less than 3 months should be allowed to lapse between the issue of final determinations varying each award and the variations becoming operative. 11 In the 24 October decision we confirmed that the following approach would be taken:

1. The Full Bench will issue a decision dealing with the issues arising in respect of the Tranche 1 Exposure Drafts and associated draft variation determinations.

2. Variation determinations for the Tranche 1 awards will be published no later than 25 November 2019 and will commence operation on 4 February 2020.

3. If a Tranche 1 award is the subject of another variation determination between the publication of the variation determination arising from this decision (25 November 2019) and when those variation determinations commence operation (on 4 February 2020) a conference will be convened to provide all parties interested in the affected award with an opportunity to be heard in relation to the appropriate course of action.

[10] In the December 2019 Statement we expressed the provisional view that the Tranche 2 awards would follow the same process. Final variation determinations would be issued no later than 14 February 2020 and the variation determinations would commence operation on 6 April 2020.

[11] At the hearing on 18 December 2019 Ai Group submitted that the variation determinations should commence operation on 4 May 2020 rather than 6 April 2020, to provide interested parties with some additional time to review the determination. Other parties expressed the view that the uncontentious variation determinations should operate from an earlier date (i.e. earlier than 4 May 2020).

[12] We have decided that all final variation determinations will be issued no later than 14 February 2020. In respect of the uncontentious awards (set out at [27]) the variation determinations will commence operation on 13 April 2020. The remaining variation determinations will commence operation on 4 May 2020.

2.3 Overtime for casuals

[13] ABI notes that multiple Tranche 2 Exposure Drafts contain summary tables setting out overtime rates of pay for causal employees in the Schedule of Hourly Rates of Pay and that the calculation of some of these rates is currently in dispute as part of the ‘Overtime for Casuals’ matter. 12

[14] ABI submits that, consistent with the approach taken with the first tranche of Exposure Drafts, 13 the Commission should publish the updated Exposure Drafts without any schedules containing overtime rates for casuals. 14 These schedules can be reinserted into the Tranche 2 awards, if appropriate, after the relevant Full Bench hands down its decision. We agree and will adopt the approach proposed.

2.3 Expression of Numbers

[15] ABI notes that one of the recent amendments to the Exposure Drafts has been to write numbers as figures instead of words. 15 This reflects the recommendations in paragraph 8.8 of the guidelines for plain language drafting of modern awards. 16

[16] ABI submits that the ‘voluntary employee contributions’ clause in many of the Exposure Drafts has been overlooked in this regard 17. For consistency, ABI submits that the terms “three month’s written notice” should be expressed as “3 month’s written notice”.18

[17] In the December 2019 Statement we posed the following question to ABI: Is the Commission’s capacity to vary the ‘voluntary employee contributions’ clause in modern awards in the context of the 4 yearly review constrained by s 156(2)(c) (see the definition of ‘default fund term’ in s 149(2))?

[18] ABI submitted that the relevant clause was not a ‘default fund term’ as defined and on that basis s 156(2)(c) did not constrain the Commission from dealing with the matter and, further, such an amendment would not constitute a ‘variation’ as it did not vary the rights and obligations arising under the clause. In response to an indication by the Commission that we were minded to take a cautious approach to the issue ABI did not press the point. Accordingly we need say nothing more about this issue and will not make the change proposed.

2.4 Coverage for Group Training Organisations

[19] ABI notes that many of the Exposure Drafts contain coverage clauses relating to group training organisations. ABI submits that consequential changes made to these clauses has highlighted a potential anomaly. 19 ABI provides the Pharmaceutical Industry Award 2010 as an example:

‘This award covers employers which provide group training services for trainees engaged in the pharmaceutical industry and/or parts of that industry.’ (emphasis added). 20

[20] ABI submits that it is unclear what is meant by “and/or parts of that industry” as any trainee engaged in a part of the pharmaceutical industry, must also, by definition, be engaged in the pharmaceutical industry as a whole. 21 The use of the words “and/or”, suggests that an employee may be engaged in a part of the pharmaceutical industry, but not the pharmaceutical industry. ABI further notes that the words “and/or parts of that industry” do not appear in clause 4.1, the general coverage clause, or clause 4.4, the on-hire coverage clause. ABI submits that similar clauses apply to other Exposure Drafts.22

[21] ABI questions whether different coverage provisions should apply to group training organisations that do not apply to other employers. 23 It also submits that the use of “and/or” is also inconsistent with paragraph 5.10 of the guidelines for plain language drafting of modern awards. 24 ABI proposed that the words ‘and/or parts of that industry’ be deleted.

[22] At the hearing on 18 December 2019 some parties submitted that they were not aware of the current wording creating any difficulties and expressed concern that there may be unintended consequences flowing from the proposed change. In light of the expressed concerns ABI did not press its proposal.

3. Correcting minor errors

[23] The December 2019 Statement noted that a number of the submissions received had identified minor typographical errors and omissions in the exposure drafts and draft variation determinations. The minor errors proposed to be corrected were set out at [20] of the December 2019 Statement.

[24] At the hearing on 18 December 2019 Ai Group withdrew aspects of its submissions directed at correcting minor errors in respect of the Airline Operations – Ground Staff Award and the Cleaning Services Award. Further, the Local Government Associations sent an email drawing attention to some errors in the table in schedule C.1.1 of the Local Government Industry Award.

[25] The final list of minor typographical errors or omissions is as follows:

• Airline Operations—Ground Staff Award 25

• Alpine Resorts Award 26

• Asphalt Industry Award 27

• Cleaning Services Award 28

• Clerks—Private Sector Award 29

• Commercial Sales Award 30

• Concrete Products Award 31

• Contract Call Centres Award 32

• Dry Cleaning Award 33

• Educational Services (Schools) General Staff Award 34

• Gas Industry Award 35

• Labour Market Assistance Industry Award 36

• Local Government Industry Award 37

• Manufacturing and Associated Industries and Occupations Award 38

• Meat Industry Award 39

• Pastoral Award 40

• Pharmaceutical Industry Award 41

• Poultry Processing Award 42

• Road Transport and Distribution Award 43

• Storage Services and Wholesale Award 44

• Transport (Cash in Transit) Award 45

• Vehicle Manufacturing, Repair, Services and Retail Award 46

• Waste Management Award 47

[26] Any party who wished to contest the variation of these Exposure Drafts (and the related variation determinations) to address the minor errors identified was invited to make a submission at the hearings on 17 and 18 December 2019. At those hearings no party opposed the correction of the identified errors. We will amend the variation determinations accordingly.

4. The uncontentious awards

[27] In the December 2019 Statement we noted that subject to the correction of minor errors and the resolution of the general issues it appeared that there were no award specific issues in relation to the following awards:

• Aboriginal Community Controlled Health Services Award

• Airport Employees Award

• Clerks – Private Sector Award

• Educational Services (Post-Secondary Education) Award

• Higher Education Industry—Academic Staff—Award

• Hydrocarbons Field Geologists Award

• Mannequins and Models Award

• Maritime Offshore Oil and Gas Award

• Passenger Vehicle Transportation Award

• Professional Diving Industry (Industrial) Award

• Professional Diving Industry (Recreational) Award

• Rail Industry Award

• Restaurant Industry Award

• Stevedoring Industry Award

[28] At the hearing on 18 December 2019 no party identified any award specific issues in relation to the above awards.

5. The Transport Group of Awards

[29] The submissions filed in respect of these awards are as follows:

• Australian Business Industrial & the NSW Business Chamber (ABI) submission on 27 November 2019

• Australian Industry Group (Ai Group) submission on 27 November 2019 and 9 December 2019

• Australian Manufacturing Workers’ Union (AMWU) submission on 27 November 2019

• Australian Workers’ Union (AWU) submission on 27 November 2019 and 9 December 2019

• National Road Transport Association (NatRoad) in relation to the following awards:

• Road Transport and Distribution Award on 14 October 2019, 18 November 2019 and 3 December 2019

• Road Transport (Long Distance Operations) Award on 3 December 2019

• Transport Workers Union (TWU) in relation to the following awards:

• Passenger Vehicle Transportation Award on 21 November 2019

• Road Transport (Long Distance Operations) Award on 21 November 2019

• Waste Management Award on 21 November 2019

• Transport (Cash in Transit) Award on 21 November 2019

• Road Transport and Distribution Award on 21 November 2019

[30] No award specific issues were raised in relation to the Passenger Vehicle Transportation award 2010.

5.1 Road Transport (Long Distance Operations) Award

[31] There are two issues in relation to this award.

(i) Clause 4.2

[32] Clause 4.2 contains the definitions that are relevant to the coverage of the Road Transport (Long Distance Operations) Award (Long Distance Operations Award). ABI submits that the introductory wording of clause 4.2 should be more clearly expressed. 48

[33] The introductory wording to clause 4.2 is as follows:

‘In this award, the following applies to the private transport industry engaged in long distances operations:’

[34] ABI submits that the definitions apply to the Long Distance Operations Award generally rather than applying to the “private transport industry engaged in long distance operations”. ABI submits that the introductory wording to clause 4.2 should be replaced with the words “In this award:” such that the clause reads: 49

‘In this award:

(a) private transport industry means the transportation by road of all materials whether in a raw or manufactured state, or of livestock, throughout Australia;

(b) long distance operation means any interstate operation, or any return journey where the distance travelled exceeds 500 kilometres and the operation involves a vehicle moving livestock or materials whether in a raw or manufactured state from a principal point of commencement to a principal point of destination. An area within a radius of 32 kilometres from the GPO of a capital city will be deemed to be the capital city;

(c) interstate operation means an operation involving a vehicle moving livestock or materials whether in a raw or manufactured state from a principal point of commencement in one State or Territory to a principal point of destination in another State or Territory. Provided that to be an interstate operation the distance involved must exceed 200 kilometres, for any single journey. An area within a radius of 32 kilometres from the GPO of a capital city will be deemed to be the capital city.’

[35] No party opposed the proposed amendment. We agree with ABI and will amend the draft variation determination accordingly.

(ii) Clause 25.3(b) Payment for work on a public holiday

[36] The TWU contends that clause 25.3(b) conflicts with clauses 10.8 and 11.4 and proposes that the issue should be resolved by replacing the reference to 4 hours in clause 25.3(b) with a reference to 8 hours.

[37] Clause 25.3(b) states:

(b) An employee must be paid for a minimum of ~~four~~4 hours’ work.

[38] Clauses 10.8 and clause 11.4 provide for minimum payments that generally apply where a casual or part-time employee is engaged to work. This equates to either an 8 hour or 500km minimum payment:

10.8 A part-time employee who is paid by the cents per kilometre method of clause 16.4 must receive a minimum payment per day for 500 km. Where the employee is engaged according to the hourly driving rate method the minimum payment per day must be ~~eight~~8 hours’ pay.

…

11.4 Minimum payment and engagement

(a) A casual employee who is paid by the cents per kilometre method of clause 16.4 must receive a minimum payment per engagement for 500 km.

(b) Where the employee is engaged according to the hourly driving rate method the minimum engagement must be ~~eight~~8 hours.

[39] The TWU submits:

‘Full time employees could not undertake a long distance operation, as defined in the Award, within a four hours period … [and] that clause 25.3(b) should be amended by deleting ‘4 hours’ and replacing it with ‘8 hours’ to overcome the conflict.’ 50

[40] In reply, Ai Group submits that the TWU proposal should not be adopted and it would introduce a new entitlement for casual and part-time employees.

[41] We note at the outset that the 4 hour minimum engagement period in clause 25.3(b) of the exposure draft (clause 26.4 of the current award) was inserted by the Part-time and Casual Employment Full Bench (see PR599012). The same determination also inserted the part time clause which the TWU submits conflicts with the minimum engagement on a public holiday term. The TWU was a participant in those proceedings but did not, at that time, raise the issue it now raises.

[42] Clause 25.3 deals with the specific issue of payment for full-time and part-time employees who work on a public holiday and it provides as follows:

25.3 Payment for work on a public holiday—full-time and part-time employees

(a) For all time worked by a full-time or part-time employee on a public holiday, payment must be made at the following rates:

(i) on Good Friday and the Christmas Day holiday—30% of the applicable minimum weekly rate specified in clause 16.1(a) plus payment for the work performed in accordance with the designated method of payment specified in clause 16—Minimum rates.

(ii) on any other holiday—20% of the applicable minimum weekly rate specified in clause 16.1(a), plus payment for the work performed in accordance with the designated method of payment specified in clause 16—Minimum rates.

(b) An employee must be paid for a minimum of ~~four~~4 hours’ work.

[43] Under the provision full time and part time employees are entitled to a payment for either 20% or 30% (depending on the public holiday) of the relevant weekly wage plus payment for work performed, plus payment for a minimum of 4 hours work.

[44] Clause 25.4 deals with the specific issue of payment for time worked by a casual employee on a public holiday and provides as follows:

25.4 Payment for work on a public holiday—casual employees

For all time worked by a casual employee on a public holiday, payment must be made at the following rates:

(a) on Good Friday and the Christmas Day holiday—30% of the applicable minimum weekly rate specified in clause 16.1(a) plus payment for the work performed in accordance with the designated method of payment specified in clause 16—Minimum rates.

(b) on any other holiday—20% of the applicable minimum weekly rate specified in clause 16.1(a) plus payment for the work performed in accordance with the designated method of payment specified in clause 16—Minimum rates.

[45] Clause 25.4 requires payment for public holiday work at 20% or 30% (depending on the public holiday) of the relevant weekly wage plus payment for work performed. The clause does not contain a requirement for a minimum amount of work to be performed on such days; though we note that clause 11.4(b) specifies a minimum engagement of 8 hours for casuals engaged accordingly to the hourly driving rate method.

[46] As a matter of construction we would observe that clauses 25.3 and 25.4 regulate the payment for work performed on a public holiday and these specific provisions should be read to the exclusion of the general provisions contained in clauses 10.8 and 11.4, which apply on other days. The TWU accepts this is so and did not challenge Ai Group’s submission that it necessarily follows that the TWU accepts that this is the correct interpretation of the current award.

[47] For the reasons set out above we are not persuaded to replace the reference to 4 hours in clause 25.3(b) with a reference to 8 hours in the context of proceedings which are directed at the finalisation of exposure drafts and the conversion of these documents into variation determinations. The issue raised by the TWU can be the subject of an application to vary the award, after the award has been varied as a result of these proceedings.

5.2 Road Transport and Distribution Award

[48] During the hearing on 9 October 2019 51 an issue arose in relation to the Exposure Draft for this award. The issue concerns clause 12.2 – Minimum wage rates – oil distribution workers and whether the divisor for the calculation of hourly wage rates for oil distribution workers is 35 or 38.

[49] The submissions of the interested parties in response to this issue are summarised in a Background Document dealing with this issue.

[50] Clause 23.2 of the current award provides that the ordinary hours for oil distribution workers ‘will be 35 per week or 70 per two week period.’ Clause 15.2 of the current award deals with minimum wages and states:

15.2 Minimum wage rates

The minimum wage rates of pay for a full-time adult employee are set out below:

Transport worker grade	Minimum weekly rate $	Minimum hourly rate $
1	784.60	20.62
2	804.30	21.17
3	814.20	21.43
4	829.20	21.82
5	839.60	22.09
6	849.20	22.35
7	861.60	22.67
8	886.60	23.33
9	901.50	23.72
10	923.80	24.31

[51] The hourly rates in clause 15.2 appear to have been derived by dividing the weekly wage rate by 38.

[52] In the current exposure draft the minimum hourly rates for oil distribution workers are set out in clause 17.2 as follows:

17.2 Minimum ~~wage~~ rates – oil distribution workers

An employer must pay adult employees the following minimum wages for ordinary hours worked by the employee:

Employee classification	Minimum weekly rate (full-time employee) $	Minimum hourly rate1 $
Transport Worker Grade 1	784.60	22.42
Transport Worker Grade 2	804.30	22.98
Transport Worker Grade 3	814.20	23.26
Transport Worker Grade 4	829.20	23.69
Transport Worker Grade 5	839.60	23.99
Transport Worker Grade 6	849.20	24.26
Transport Worker Grade 7	861.60	24.62
Transport Worker Grade 8	886.60	25.33
Transport Worker Grade 9	901.50	25.75
Transport Worker Grade 10	923.80	26.39

[53] The hourly rates in clause 17.2 are derived by dividing the weekly wage rate by 35.

[54] As we have mentioned, the appropriate divisor for calculating the hourly rates for oil distribution workers is the issue in contention.

[55] NatRoad contends that the correct divisor for oil distribution workers is 38, not 35 and submits that clause 23 does not establish that the 35 hour week translates to a divisor of 35 in respect of minimum wages, and that it is silent on this matter. NatRoad also refers to clause 15.2 of the award and submits that this clause is clear in its prescription of the minimum wage rates as it states “The minimum wage rates of pay for a full-time adult employee are set out below.” NatRoad submits that there is no qualification to this statement. There is no cross-reference to clause 23 or a separate reference to oil distribution workers and the manner of the calculation of their wages.

[56] NatRoad refers to, and relies upon, the relevant Award Modernisation Full Bench decision, 52 and in particular to paragraphs 176 and 177:

‘[176] We acknowledge the fact that the rates in the Transport Workers (Oil Distribution) Award 2001 and the Transport Workers (L.P. Gas Industry) Award 2005 are higher than rates in the other pre-reform transport awards. We have considered the history of adjustment of the rates in those awards. It appears that each award had, in the past, operated as a paid rates award and it is not apparent that when the awards were simplified the rates were converted to minimum rates. In any event the majority of rates in other pre-reform transport awards and NAPSAs weigh heavily in favour of them being reflected in the rates in the RT&D Modern Award. We need say little about the TWU suggestion that we introduce an 11% industry allowance in the oil distribution and LP gas sectors. The union did not raise this proposal in submissions filed in accordance with the published timetable. When it was raised late in the consultation process little was said to justify it. Such an allowance would normally apply to all employees in the sector and for all purposes and before we would consider the introduction of such an allowance employers would need to first be alerted to the fact it was being sought and then an opportunity, on the days set aside for Full Bench consultations, to make submissions about it. We have decided that no such provision should be in the RT&D Modern Award. The rates for these two sectors can be considered further in the context of transitional provisions.

[177] We next turn to the hours clause in the RT&D Modern Award and in particular cl.23 which provides for ordinary hours of work for oil distribution workers. The exposure draft clause reflected the existing regime of hours being 35 per week or 70 per fortnight. We are aware that these hours have operated within these sectors of the transport industry for many decades. We considered whether, in the context of this modern award, the ordinary hours for this sector of the industry should be less than those for the remaining sectors. In this respect we acknowledge the submissions of the Oil Industry Industrial Committee as to why two different hours clauses may not be appropriate. On balance however we have decided it is appropriate to retain the two minimum ordinary hours clauses. As a consequence of doing so we have inserted into the facilitative provisions and the provisions of cl.23 additional flexibilities contained in existing awards. We should indicate that it is not our intention that these minimum hours of work should extend any further than they have traditionally applied. It may be that, at an appropriate time, consideration needs to be given to variations to the award to ensure these constraints are reflected in it.’ (Emphasis added)

[57] NatRoad relies on the underlined sentence in the above extract and submits that this sentence clearly indicates that minimum wages for oil distribution workers were to be reflective of ‘the majority of rates’ in other pre-reform awards and NAPSAs. They contend that the AIRCFB has separated its consideration of minimum rates in [176] of its decision from the ordinary hours of work issue that is then addressed in [177] of the decision. NatRoad submit that the current award reflects this distinction and it should not now be interpreted so that these issues are conflated. 53

[58] NatRoad contend that the Award Modernisation Full Bench considered the pre-modern awards and that its consideration led to a separation of the issue of minimum wages from ordinary hours of work. NatRoad submit that this accords with the omission from the award of any clear statement of a linkage between the ordinary hours of work of oil distribution workers and the minimum rates of pay as appeared in the federal pre-modern award, the Transport Workers (Oil Distribution) Award 2001 as follows:

‘Ordinary-time rate means for an employee (other than a casual employee) 1/35th of the wage rate prescribed in clause 16 - Classifications and wage rates, of this award for the classification in which the employee is employed.’ 54

[59] The TWU supports a divisor of 35 and submits that this is the appropriate outcome having regard to the modern awards objectives, the history of industrial conditions for employees engaged in the oil distribution sector of the road transport industry and the plain meaning of the provisions of the award.

[60] The TWU notes that clause 14.2 of the Exposure Draft clearly states that the ordinary hours of work for oil distribution workers is either 35 hours per week or 70 hours per two week period. They submit that that other provisions, such as clauses 14.5 and 14.6 refer to oil distribution workers being engaged on the basis of 5 days or 7 hours per day, consistent with the conclusion that the industry has historically operated on the basis that oil distribution workers were engaged for 35 hours per week. 55

[61] The TWU also refers to [177] of the Award Modernisation Full Bench decision in respect of the hours clause for oil distribution workers, noting that the pre-reform regime was 35 hours per week or 70 hours per two week period and place emphasis on the following sentence ‘…we have decided it is appropriate to retain the two minimum ordinary hours clauses’. 56

[62] TWU further submit that the appropriate divisor when determining the hourly rate for those pre-reform awards was 1/35 of the minimum weekly rate and that this is also a relevant distinction. 57 They submit that this applied to the following instruments: Transport Industry – Petroleum & C., Distribution (State) Award at clause 28, and Transport Workers (Oil Distribution) Award 2001 at clause 13.2.2 pertaining to casual employees.58

[63] In response to the TWU’s submission regarding the Full Bench retaining two clauses about ordinary hours, NatRoad contend that the Full Bench made no separate determination about two separate minimum wage rates, as was open to it. 59

[64] NatRoad also submits that any determination of this matter that reversed what NatRoad argues is the status quo could then be instituted prospectively. They submit that to proceed otherwise might provide retrospective effect to the TWU position and therefore create regulatory risk as shown by the FWO submission. 60

[65] We begin our consideration of this issue by commenting on two aspects of NatRoad’s submission.

[66] The first concerns the decision of the Award Modernisation Full Bench. In our view that decision, and the passages upon which NatRoad relies, is of little assistance in the determination of the issue in contention.

[67] The Award Modernisation Full Bench make no express reference to the divisor issue and according to Mr Ryan (representing ARTIO) who was involved in those proceedings, the divisor issue was neither addressed in submissions nor raised by the Full Bench.

[68] The second aspect of NatRoad’s submission upon which we wish to comment concerns the statement made in NatRoad’s reply submission of 3 December 2019 (at [23]):

‘An argument in the alternative which we proffer without prejudice is that this matter could be deferred with the status quo replicated (i.e. not include separate tables for oil distribution workers) at least until the TWU brings on evidence and proper merit arguments as was earlier foreshadowed. Any determination of this matter that reversed what NatRoad argues is the status quo could then be instituted prospectively. To proceed otherwise might provide retrospective effect to the TWU position and therefore create regulatory risk about a matter that has been in doubt, as shown inter alia via the FWO submission referred to in paragraph 17 of this submission.’

[69] We wish to make it clear that we are dealing with the issue in dispute as a matter of merit; we are not expressing a view on the proper construction of the current award. In such circumstances we fail to see how any decision we make could be said to ‘provide retrospective effect to the TWU position’, as contended by NatRoad.

[70] We have concluded that, as a matter of merit, the divisor should be 35. The weekly ordinary hours of oil distribution workers are 35 and we see no persuasive reason for not adopting that as the divisor. Indeed to adopt a divisor of 38 would have the effect of denying oil distribution workers one of the benefits of a 35 hour week.

[71] We also note that a 35 hour divisor sits conformably with the rostered days off provisions for oil distribution workers. Clause 14.6(a) of the exposure draft provides for a payment of 7 hours pay (or 7 hours extra annual leave) where an oil distribution employees’ rostered day off falls on a public holiday. If a 38 divisor is adopted then such employees would receive less than one days’ pay in these circumstances. Such an outcome seems incongruous.

[72] The variation determination will reflect a 35 divisor for oil distribution employees.

[73] The TWU raise five other issues in respect of this award.

(i) Clause 11.6 Conversion of casual employment

[74] The TWU refers to the provisional view of the Full Bench expressed at [2019] FWCFB 6894 at [81] in respect of the drafting of the term and supports the inclusion of a casual conversion clause in the Exposure Draft pending the resolution of issues associated with the drafting of the term.

[75] Consistent with the views expressed in [2019] FWCFB 6898 at [81] the draft variation determination will be amended to include the casual conversion clause in the current award. No party opposed this course.

(ii) Clause 17.2 – Minimum rates – oil distribution workers

[76] The TWU submits that tables C.4.3 and C.4.4 should be amended to include overtime provisions, as prescribed in clause 11.5.

[77] It does not seem to be contested that under this award casual employees are to be paid for all overtime worked at overtime rates. The employer parties sought an opportunity to comment on any amended tables.

[78] The TWU has filed amended C.4.3 and C.4.4 tables and these have been published on the AMOD website. Any interested party may comment on the TWU’s proposed tables, by 4pm 17 January 2020. All comments are to be sent to [email protected].

(iii) Clauses 11.5 and 23.1(b) – anomaly

[79] The TWU submits that the interaction of clauses 11.5 and 23.1(b) of the exposure draft gives rise to an anomaly whereby casual employees who work overtime on a Sunday receive less than if they work ordinary hours on a Sunday.

[80] The issue raised does not arise from the translation of the current award terms into the exposure draft; the same issue arises under the current award (see clause 12.5(d) and 28.1(b)). We do not think it appropriate to deal with this issue in proceedings directed at the finalisation of exposure drafts and the conversion of these documents into variation determinations. The issue raised by the TWU can be the subject of an application to vary the award, after the award has been varied as a result of these proceedings.

(iv) Schedule C2 – Full-time and part-time employees – ordinary and penalty rates

[81] The TWU submits that the percentages in clause 23.2(a) and the footnote should be reflected in tables C.2.1, C.2.3 and C.2.5.

[82] There did not appear to be any opposition to the TWU’s proposal – though the employer representatives sought an opportunity to comment on any variation to Schedule C2.

[83] The TWU has filed a document reflecting its proposed amendments to Schedule C2 which has been published on the AMOD website. Any interested party may comment on the TWU’s proposal, by 4pm 17 January 2020. All comments are to be sent to [email protected].

(v) Schedule C – Tables C.4.1, C.4.2, C.4.3, C.4.4, C.4.5 and C.4.6

[84] The TWU submits that these tables should be amended to include provisions for the payment of overtime to casuals with the appropriate rates payable to casuals when working overtime on a Saturday or Sunday.

[85] As mentioned earlier, it does not seem to be contested that under this award casual employees are to be paid for all overtime worked at overtime rates. The employer parties sought an opportunity to comment on any amended tables.

[86] The TWU has filed amended C.4.1, C.4.2, C.4.3, C.4.4, C.4.5 and C.4.6 tables and these have been published on the AMOD website. Any interested party may comment on the TWU’s proposed tables, by 4pm 17 January 2020. All comments are to be sent to [email protected].

5.3 Transport (Cash in Transit) Award

[87] In addition to some minor corrections Ai Group raise two issues.

(i) Clause 21.8 Shift work rates – shiftworkers – afternoon shift

[88] The table at clause 21.8 in the Exposure Draft, prescribes the rate payable for ordinary hours worked during an “afternoon shift (where continues for fewer than 5 consecutive afternoons)”:

21.8 Shiftwork~~allowances~~rates – shiftworkers

Shiftworkers must be paid the following shift allowances for all ordinary hours of shift worked during the following periods:

Shift	Shift	Casual shift
% of ordinary hourly rate
Afternoon shift
Rotating afternoon shift	115	140
Permanently working afternoon shift	117.5	142.5
Afternoon shift (where continues for fewer than ~~five~~5 consecutive afternoons
-first ~~three~~3 hours	150	175
-after ~~three~~3 hours	200	225
Night shift
Rotating night shift	120	145
Permanently working night shift	130	155
Night shift (where continues for fewer than ~~five~~5 consecutive nights)
-first ~~three~~3 hours	150	175
-after ~~three~~3 hours	200	225
Permanently working alternate night and afternoon shift:
-when on afternoon shift	117.5	142.5
-when on night shift	130	155

[89] Clause 25.9(c) of the current award is the equivalent provision:

‘(c) Shiftworkers who work on an afternoon or night shift which does not continue for at least five consecutive afternoons or nights will be paid at the rate of time and a half for the first three hours and double time after that for each shift.’ 61

[90] Ai Group submit that the award clause, as opposed to the Exposure Draft, makes clear that the rate is payable where the shift does not continue for at least five consecutive afternoons and thus the entitlement to the higher rate is not contingent upon whether the employee works on the afternoon shift for at least five consecutive shifts. 62

[91] To avoid ambiguity, Ai Group propose the following amendment to the description of the relevant afternoon shift in the Exposure Draft (noting the underlined):

Afternoon shift (where the shift continues for fewer than 5 consecutive afternoons) 63

[92] A similar amendment is proposed for clause 21.9:

Night shift (where the shift continues for fewer than 5 consecutive nights) 64

[93] No party opposed the proposed amendment. We agree with Ai Group and will amend the draft variation determination accordingly.

(ii) Schedule A.1.2 Summary of hourly rates – ordinary hourly rate

[94] With respect to schedule A.1.2 summary of hourly rates – ordinary hourly rate, Ai Group submits that the final sentence wrongly suggests that all applicable all-purpose allowances need to be added to the rates in the tables and contradicts schedule A.1.1 and the footnotes to the tables. 65

[95] As such, Ai Group propose the final sentence be amended to (noting the underlined):

… Consistent with clause A.1.1, any additional all purpose allowances need to be added to the rates in the table where they are applicable. 66

[96] No party opposed the proposed amendment. We agree with Ai Group and will amend the variation determination accordingly.

5.4 Waste Management Award

(i) Schedule A.2.3 Full time and part time employees: Overtime

[97] Parties were asked to advise whether the following text should be added to footnote 1 in schedule A.2.3:

‘Payment for work on public holidays is in addition to any amount payable in respect of the weekly wage (see clause 27.5(b)).’

[98] No party supported the inclusion of the proposed text in footnote 1. We have decided not to include the proposed text in footnote 1.

(ii) Clause 22.2 Annual leave

[99] Clause 22.2 provides:

22.2 During a period of annual leave an employee will receive a loading calculated on the wage rate prescribed in clause 15—Minimum rates of this award. Annual leave loading payment is payable on leave accrued and taken but it is not payable on leave paid out on termination.

The loading is as follows:

(a) Day work

Employees who would have worked on day work only had they not been on leave—17.5% or the relevant weekend penalty rates, whichever is the greater but not both.

(b) Shiftwork

Employees who would have worked on shiftwork had they not been on leave—a loading of 17.5% or the shift loading (including relevant weekend penalty rates) whichever is the greater but not both.

NOTE: Where an employee is receiving over-award payments such that the employee’s base rate of pay is higher than the rate specified under this award, the employee is entitled to receive the higher rate while on a period of paid annual leave (see sections 16 and 90 of the Act).

[100] At the hearing on 17 December 2019 it was generally agreed that the second sentence in clause 22.2 be deleted. We agree and will delete the following sentence from clause 22.2 in the draft variation determination:

‘Annual leave loading payment is payable on leave accrued and taken but is not payable on leave paid out on termination.’

6. All other Tranche 2 Awards – award specific issues

6.1 Airline Operations—Ground Staff Award

[101] Ai Group, the AMWU, AWU, TWU and Qantas submit that the tables in Schedule B that deal with overtime for shiftworkers incorrectly state that non-continuous shiftworkers receive time and a half for work performed on a Sunday 67; the affected tables are B.2.4, B.3.4, B.4.4 and B.5.4.68

[102] It is common ground that the correct rate for work performed on a Sunday is double time for non-continuous shiftworkers, in accordance with clause 32.1(a)(ii) of the current Award. This subclause was recently inserted by the Full Bench in AM2018/15 as a result of resolving the substantive issues within the Award. 69

[103] The Exposure Draft currently provides within each of the tables, under ‘Shiftworkers (except continuous shiftworkers’) the rates for the first two hours and after two hours for ‘Monday to Sunday’. The AMWU and AWU propose that ‘Monday to Sunday’ be amended to ‘Monday to Saturday’ and a new column providing a rate of 200% for all hours worked on a Sunday to identify the correct rates. 70

[104] Ai Group proposes to amend the tables at clauses B.2.4, B.3.4, B.4.4 and B.5.4 by:

• deleting the two columns under the heading ‘Shiftworkers (except continuous shiftworkers); and

• amending the heading ‘Day workers’ to read ‘Day workers and shiftworkers (except continuous shiftworkers). 71

[105] Clause 24.1(a)(i) and (ii) of the draft variation determination provides payment for overtime, as follows:

(i) for a continuous shiftworker the rate for working overtime is 200% of the ordinary hourly rate; and

(ii) for shiftworkers working on Sunday, the rate for working overtime is 200% of the ordinary hourly rate.

[106] The variation has not been reflected in the rates of pay Schedules. The draft variation determination will be amended to reflect the terms of clause 24.1(a)(i) and (ii), as proposed by the parties and a new column inserted providing for 200% for all hours worked on a Sunday as proposed by the AMWU and AWU.

[107] A marked-up version of the changes we proposed to make to the tables at B.2.4, B.3.4, B4.4 and B.5.4 was set out at Attachment Ato the December 2019 Statement. At the hearing on 18 December 2019 no party opposed the amendment of the draft determination in accordance with Attachment A. We will amend the variation determination accordingly.

[108] The AMWU also submit that the tables in Schedule B do not include overtime rates for casuals. 72 The AMWU continues to rely on their position that a table of overtime rates for casuals should be inserted into the relevant Schedule B tables,73 however the AMWU notes that this matter may be dealt with by the Full Bench in AM2017/51.74 Consistent with our general approach, the award will be varied by the Full Bench in AM2017/51. After the award has been varied the variation determination will be amended.

[109] Ai Group raises three other issues.

(i) Schedule C.1.1

[110] Ai Group submits that the clause numbers in Schedule C.1.1 should be amended to improve clarity, as follows:

• Disability allowance – excessive fumes, noise and dust etc: 20.3(b)(i)(A)

• Disability allowance – noise and dust to a limited degree: 20.3(b)(i)(B)

[111] The AMWU and AWU agree. We agree and will make the amendment suggested by Ai Group.

(ii) Clause 10.3(a) Part time shiftworkers

[112] Ai Group submits that the word ‘on’ should be inserted before ‘guaranteed’.

[113] In reply, the AMWU submits that the word ‘on’ should be inserted before the word ‘the’, rather than before the word ‘guaranteed’, so that the clause reads:

‘At the time of engagement or appointment of an employee as a shiftworker, the employer and the part time employee will agree in writing on the guaranteed minimum number of ordinary hours to be worked in a week.’

[114] The AWU and Ai Group agree with the AMWU’s proposal. We will amend clause 10.3(a) in the draft variation determination accordingly.

(iii) Clause 17.7(b) Shift penalty rates – weekends and public holidays

[115] Ai Group submits that the word ‘premiums’ should be replaced with ‘rates and allowances’ in order to reflect the terminology adopted in clauses 17.3 to 17.6.

[116] In reply the AMWU submits that the proposed change is not necessary and that the current equivalent clause refers to ‘shift premiums’. The AWU agrees with the AMWU.

[117] In the December 2019 Statement, consistent with the approach taken in the Tranche 1 matters, we expressed the provisional view that Ai Group’s proposed amendment be adopted and the draft variation determination amended accordingly. At the hearing on 18 December 2019 no party opposed our provisional view. We confirm our provisional view and will amend the draft variation determination accordingly.

[118] The Qantas Group raise four additional issues.

(i) Clause 4.2 Airline Operations industry definition – Qantas reiterates its understanding that although the definition of airline operations industry has been amended, the amendments are not intended to alter the existing coverage of the award in any way.

We confirm that Qantas’ understanding is correct. The amendments to the definition of airline operations are not intended to alter the coverage of the award in any way.

(ii) Clause 18.7 Higher duties – Qantas queries whether this clause is appropriately placed within the award.

The higher duties clause in this award is placed towards the end of clause 18, Minimum rates. The AMWU notes that this is consistent with the approach taken in other modern awards (see clause 20.2 of the draft variation determination in respect of the Manufacturing and Associated Industries and Occupation Award). We do not propose to adopt a different approach in respect of this award and we do not propose to vary the location of clause 18.7.

(iii) Clause 24.1(c) Payment for working overtime – Qantas submits that clause 24.1(c) deals with taking time off instead of payment for overtime and submits that it can be deleted given the overlap with clause 24.6. Ai Group raises the same point. The AMWU and AWU agree.

We agree with Qantas (and Ai Group) and will delete clause 24.1(c) (and renumber clause 24.1(d)) in the draft variation determination.

(iv) Schedule B.5.3 Full time and part time store persons and logistics shiftworkers - Qantas submits that the rates in Schedule B.5.3 ‘appear to be incorrect’ and that the rates for 150%, 200% and 250% of the ordinary hourly rate (which is based on the minimum hourly rate) should reflect those in B.5.1. Ai Group and the AMWU submit that the rates in this table are incorrect and require recalculation. For example, 150% of the minimum hourly rates applying to Level 1 should be $31.08 and 200% of the minimum hourly rate applying to Level 1 should be $41.44. The AMWU and AWU agree.

We agree with Qantas and Ai Group and will amend the rates accordingly.

6.2. Air Pilots Award

[119] Qantas raises three issues in respect of the draft variation determinations.

(i) Table of facilitative provisions (clause 7.4)

[120] Qantas submits that clause 14.1(b) and clause 20.3(b)(iii) should be added as additional cross-references in the table of facilitative provisions at clause 7.4. 75 The clauses are set out below:

14. Transfers

14.1 Permanent

…

(b) The pilot and the employer may mutually agree in a specific case that a shorter period of time represents adequate notice.

20.3 Expense-related allowances

(b) Provision of transport and travel

(iii) Where an employer requires a pilot to layover the employer will provide accommodation and travel at no cost to the pilot. The accommodation and travel will be confirmed prior to departure from home base, or in aerial application operations, at the earliest practicable time or as otherwise agreed between the pilot and employer.

[121] We agree with Qantas and the two clauses set out above will be added to the table of facilitative provisions in clause 7.4; the draft variation determination will be amended accordingly.

(ii) Schedule B.3.1

[122] Qantas further submit that the words ‘per tour of duty’ in Schedule B.3.1 should be amended to revert to the wording in previous versions of the Exposure Draft which were ‘for the tour of duty’. We agree and will make the change proposed. 76

(iii) Schedule F.3.2

[123] Qantas raise a question about the table in Schedule F.3.2(b) which includes a row for ‘daily travel allowance’ and submit that they are unsure what this allowance applies to and indicated that they would confer with the other parties before the hearing. At the hearing on 18 December 2019 Qantas advised that they had discussed the issue with the AFAP and it was agreed that the words ‘daily travel allowance’ in Schedule F.3.2(b) be replaced with ‘daily travelling allowance.’ We agree and will amend the draft variation determination accordingly.

[124] We note that there are a number of substantive issues currently referred to another Full Bench (AM2018/14). Clause 13 (Training – Classification) and Schedule B (Classification, Minimum Salaries and Additions to Salaries Regional Airlines) will be the subject of further submissions in those proceedings.

6.3 Alpine Resorts Award

[125] The AWU submits that the words “no more than 38 hours per week” in clauses 10.1(b) and 15.3 should be amended to “less than 38 hours per week”. AWU submits that if the variation is not made, a part-time employee can arguably work an average of 38 ordinary hours per week. It is submitted that this change is consistent with what was substantively agreed between the AWU and the Australian Ski Areas Association earlier in the award review.

[126] Clauses 10.1(b) and 15.3 provide:

10.1 A part-time employee:

(b) is engaged to work an average of at least 8 and no more than 38 hours per week over a work cycle of 4 weeks;

15.3 The ordinary hours of part-time employees will average at least 8 and no more than 38 hours per week over a maximum work cycle of 4 weeks.

[127] In the December 2019 Statement we expressed the provisional view that the draft variation determination be amended, as proposed by the AWU. At the hearing on 18 December 2019 there was no opposition to our provisional view and the AWU indicated that the Australian Ski Areas Association supported the proposed change. 77 We confirm our provisional view and will amend the draft determination accordingly.

6.4 Architects Award

[128] The ACAA submit that a further amendment should be made to the table at clause 13.1 as follows: 78

Classification

Minimum annual rate(full-time employee)

Minimum weekly rate
(full-time employee)

Minimum hourly rate
(full-time and part-time employee)

[129] We agree with the addition of (full time employee) under the heading ‘Minimum annual rate’ and will amend the draft variation determination accordingly.

[130] In the December 2019 Statement we expressed the provisional view that the other proposed change be rejected. The minimum hourly rate column applies to full-time, part-time and casual employees (see clause 10). At the hearing on 18 December 2019 the ACAA did not contest our provisional view but proposed that a reference to casual employees also be inserted in the heading dealing with the minimum hourly rate. We agree and will amend the draft variation determination accordingly.

[131] The balance of the submissions made by the ACAA relate to the issues before the substantive issues full bench (AM2018/16). That Full Bench issued a decision in this matter on 12 September 2019 which attached a draft determination. 79 Interested parties then had the opportunity to file submissions. We do not propose to deal with those issues as part of the process of finalising the Exposure Drafts. The Exposure Draft will be updated when the AM2018/6 Full Bench issues a final variation determination.

6.5 Asphalt Industry Award

[132] The AWU raises three issues.

(i) Clause 19.2

[133] The AWU submits that an additional row should be added to the table at clause 19.2 for overtime work on a public holiday with a 250% rate and a four-hour minimum engagement. The proposed change is said to reflect the entitlement in clause 28.3 of the current award.

[134] The table at clause 19.2 deals with overtime rates for employees other than shiftworkers and states:

19.2 Overtime rates for employees other than shiftworkers

Where an employee works overtime the employer must pay to the employee the overtime rates as follows:

For overtime worked on	Overtime rate % of ordinary hourly rate or casual ordinary hourly rate	Minimum payment
Monday to Friday—first 2 hours	150	–
Monday to Friday—after 2 hours	200	–
Saturday—first 2 hours	150	4 hours
Saturday—after 2 hours	200	4 hours
Sunday all day	200	4 hours

See Schedule A – Summary of Hourly Rates of Pay for a summary of hourly rates of pay including overtime and penalties.

See clause 20.5 for overtime rates for shiftworkers.

[135] In reply, Ai Group does not oppose the insertion of an additional row dealing with public holiday rates but submits that the reference to a 4 hour minimum payment would constitute a substantive change,:

‘Clause 28.3 of the award requires a 4 hour minimum for any work performed on a public holiday, regardless of whether it constitutes ordinary hours or overtime. Moreover, an employee is not entitled to a 4 hour minimum payment in respect of ordinary hours and an additional 4 hour minimum payment in respect of overtime worked on a public holiday, in circumstances where an employee works both ordinary hours and overtime on a public holiday.

Accordingly, we suggest that in the “minimum payment” column, the following words are inserted: “see clause 26.3”. Clause 26.3 provides the minimum payment period in the same terms as the current clause 28.3.’ 80

[136] At the hearing on 18 December 2019 the AWU agreed to Ai Group’s proposal that in the ‘minimum payment’ column of clause 19.2 the words ‘see clause 26.3’ be inserted to line up with the addition of the public holiday provision proposed by the AWU. We agree and will amend the draft variation determination accordingly.

(ii) Payment for work on a public holiday

[137] The AWU submits that the ‘Payment for work on a public holiday’ clauses in the current award and the Exposure Draft are not consistent. Clause 28.3 of the current award states:

‘Payment for work on a public holiday

If an employee works on any of the public holidays arising from this clause or any day substituted for such public holidays the employee will be paid at the rate of double time and one half of their ordinary rate of pay, with a minimum payment of four hours at such rate.’

[138] Clause 26.2 of the Exposure Draft states:

‘Payment for working public holidays

Where a full-time or part-time employee works ordinary hours on a public holiday the employee will be paid 250% of the ordinary hourly rate for all time worked on the public holiday. A casual employee who works on a public holiday will be paid 250% of the casual ordinary hourly rate.’

[139] The AWU submits that clause 28.3 in the current award does not confine the 250% penalty rate to ordinary hours on public holidays – it applies equally to overtime 81 and on that basis that a public holiday column should be added to the table at shedule A.2.2 with a penalty rate of 250%.82

[140] In reply, Ai Group submit that it is not clear whether the AWU is proposing a change to clause 26.2 but note that the change it has proposed to clause 19.2 would address its concern. Ai Group also notes that an alternate way of addressing this issue would be to simply delete the words ‘ordinary hours’ from clause 26.2, in lieu of making any change to clause 19.2. 83

[141] During the course of the hearing on 18 December 2019 the AWU and Ai Group agreed to a resolution of this issue by amending clause 11.4(a)(i) and (ii) to delete ‘minimum hourly rate’ and insert ‘ordinary hourly rate.’ 84 We agree and will amend the draft variation determination accordingly.

(iii) Clauses A.2.3 and A.3.3

[142] The AWU submits that a Sunday penalty rate column has been omitted from the table at clauses A.2.3 and A.3.3 and that the correct penalty rate is 200%. 85

[143] In reply, Ai Group does not oppose the changes to A.2.3 and A.3.3. 86ABI agrees with the submissions of Ai Group and the AWU.

[144] We will make the changes to A.2.3 and A.3.3 proposed by the AWU and amend the draft variation determination.

6.6 Cleaning Services Award

[145] In addition to correcting minor errors Ai Group raises an issue with the definition of ‘minimum hourly rate’ in clause 2. 87

[146] Ai Group submit that the words ‘for a full-time employee’ should be removed from the definition of minimum hourly rate. 88 The definition is as follows:

minimum hourly rate means the minimum hourly rate for a full-time employee specified in column 3, in accordance with the employee classification specified in column 1, of Table 2—Minimum rates.

[147] Ai Group submits that the purpose of the words ‘for a full time employee’ is unclear and they are potentially confusing, in particular:

• it is unclear whether they have the effect of limiting the application of the term to full time employees, which would be an unintended outcome of the definition. The term ‘minimum hourly rate’ is used throughout the Exposure Draft in respect of entitlements for full time, part time and casual employees;

• Table 2 at clause 15 does not refer to or confine the entitlement to the hourly rate there prescribed to full time employees.

[148] In reply the UWU opposes the deletion of the words ‘for a full time employee’ and submits:

‘Whilst Table 2 at clause 15 includes hourly rates, those hourly rates are not applicable to part-time or casual employees. Part time employees are entitled to a 15% allowance in accordance with clause 10.2 and casual employees are entitled to a loading of 25% in accordance with clause 11.3. Deleting the words ‘for a full time employee’ in the definition of the minimum hourly rate may mislead employers and employees as to the correct payment for part time and casual employees.’ 89

[149] Contrary to the UWU’s submissions, we see no difficulty with the deletion of the words ‘for a full-time employee’ as the rates for part time and casual employees under this award are plainly based on the minimum hourly rate. We will amend the draft variation determination as proposed by Ai Group.

[150] During the course of the hearing on 18 December 2019 the UWU submitted that this award is ‘replete with … confusion’. 90 The appropriate means of addressing perceived deficiencies in a modern award is by making an application to vary the award. We note that over the course of the Review, since 2014, United Voice, one of the predecessor organisations of the UWU, made no substantive claims to vary this award. If UWU contends that the award is not meeting the modern awards objective it is open to it to file an application under s 158.

6.7 Commercial Sales Award

[151] Ai Group submit that the terms ‘minimum hourly rate’ and ‘applicable minimum hourly rate set out in clause 15–Classifications and minimum rates’ have been used inconsistently and therefore have the potential to cause confusion.

[152] In reply, ABI submits (contrary to Ai Group) that the use of both ‘minimum hourly rate’ and ‘applicable minimum hourly rate’ is not confusing but did not oppose the references to ‘minimum – hourly rate’ identified by Ai Group being varied to ‘applicable minimum hourly rate’, for the sake of consistency.

[153] In the December 2019 Statement we expressed the provisional view that no amendment is necessary. At the hearing on 18 December 2018 no party challenged our provisional view and Ai Group did not press its submission.

6.8 Concrete Products Award

[154] The Commission posed the following question at clause 11.3 of the tracked Exposure Draft published on 14 October 2019:

‘Parties are asked to confirm whether the cross reference in clause 11.3(b) to clause 11.3(c) is correct’

[155] The AWU submits that the cross-reference in clause 11.3(b) to clause 11.3(c) is incorrect and that it should be amended to ‘clause 11.3(b). 91 Ai Group agrees. We will amend the draft variation determination accordingly.

[156] The AWU raises three additional points.

(i) Clause 21.9(b)(iii) Sundays and public holidays – shiftworkers on other than continuous shift

[157] The AWU submits that the ‘Shiftworkers on other than continuous work’ subclauses at clause 21.9(b)(iii) of the Exposure Draft and the corresponding clause of the current award are inconsistent.

[158] Clause 25.9(c) of the current award is drafted as follows:

‘Where shifts commence between 11.00 pm and midnight on a Sunday or a public holiday, the time worked before midnight will not entitle the employee to the Sunday or public holiday rate, provided that the time worked by an employee on a shift commencing before midnight on the day preceding a Sunday or public holiday and extending into a Sunday or public holiday will be regarded as time worked on such Sunday or public holiday.’

[159] Clause 21.9(b)(iii) of the Exposure Draft is under the heading ‘Shiftworkers on other than continuous work’ as follows:

[160] The AWU submits the provision in the current award applies equally to continuous and non-continuous work and to maintain this outcome, clause 21.9(b)(iii) of the Exposure Draft should be renumbered as clause 21.9(c) and a consequential change made to the next clause. 92

[161] Ai Group agrees with the AWU. We will amend the draft variation determination accordingly.

(ii) Schedule B.3.2

[162] The AWU submits the heading in the table in schedule B.3.2 be amended as follows: (added words underlined):

‘Monday to Sunday and public holidays’. 93

[163] Ai Group agrees with the AWU. We will amend the draft variation determination accordingly.

(iii) Schedule B.3.3

[164] The AWU submits that a ‘Public holiday’ column should be added to the table in schedule B.3.3 with a rate of 200%. 94

[165] Ai Group does not oppose the AWU’s submission and notes that the rates should be the same as those set out in the column currently furthest to the right; the AWU agrees with the latter point. We agree and will amend the draft variation determination accordingly.

6.9 Contract Call Centres Award

[166] In addition to some minor errors Ai Group raises an issue in relation to clauses B.1.1 and B.2.1.

[167] Schedule B.1.1 states:

B.1.1 Full–time and part–time adult employees—all employees—ordinary and penalty rates

Ordinary hours	Monday to Friday	Saturday	Sunday		Public holiday¹
Ordinary hours	Outside spread of ordinary hours	Saturday	7 am—7 pm	12 am—7 am & 7 pm—12 am	Public holiday¹
% of minimum hourly rate
100%	125%	125%	150%	175%	250%
$	$	$	$	$	$
Customer Contact Trainee	20.82	26.03	26.03	31.23	36.44	52.05
Clerical and Administration Officer Level 1	20.82	26.03	26.03	31.23	36.44	52.05
Customer Contact Officer Level 1	21.54	26.93	26.93	32.31	37.70	53.85
Clerical and Administration Officer Level 2	21.54	26.93	26.93	32.31	37.70	53.85
Customer Contact Officer Level 2	22.70	28.38	28.38	34.05	39.73	56.75
Clerical and Administration Officer Level 3	22.70	28.38	28.38	34.05	39.73	56.75
Principal Customer Contact Specialist	24.14	30.18	30.18	36.21	42.25	60.35
Customer Contact Team Leader	24.77	30.96	30.96	37.16	43.35	61.93
Clerical and Administration Officer Level 4	24.77	30.96	30.96	37.16	43.35	61.93
Principal Customer Contact Leader	26.55	33.19	33.19	39.83	46.46	66.38
Clerical and Administration Officer Level 5	26.55	33.19	33.19	39.83	46.46	66.38
Contract Call Centre Industry Technical Associate	28.70	35.88	35.88	43.05	50.23	71.75

¹Does not apply to designated shiftworkers performing work during afternoon and night shifts.

[168] Ai Group submits that the heading of the second column (“Ordinary hours”) in the tables in clauses B.1.1 and B.2.1 be replaced with “Monday to Friday, Within spread of ordinary hours” 95 on the basis that this more accurately reflects the circumstances in which the rate prescribed is payable and better distinguishes those rates from the rates that appear in the following column.

[169] At the hearing on 18 December 2019 the CPSU did not oppose the changes proposed by Ai Group.

[170] We agree with both suggested changes and will amend the draft variation determination accordingly.

6.10 Dry Cleaning and Laundry Industry Award

[171] The CFMMEU – Manufacturing Division submits that it may be clearer if all the shiftwork rates for ordinary hours in clauses C.1.2 and C.1.3 are combined into a single table. It notes that this approach has been taken for casual shiftwork rates in Schedule C.3.5 and C.3.6. 96

[172] We agree with the CFMMEU – Manufacturing Division and in the December 2019 Statement we expressed the provisional view that tables C.1.2 and C.1.3 be combined as set out below:

C.1.2 Full-time and part-time shiftworkers—ordinary and penalty rates

Ordinary hours	Morning, afternoon or night shift	Permanent night shift	Saturday –ordinary hours worked before midday	Saturday –ordinary hours worked after midday	Public holiday	Non-successive morning, afternoon or night shift – dry cleaning¹
Ordinary hours	Morning, afternoon or night shift	Permanent night shift	Saturday –ordinary hours worked before midday	Saturday –ordinary hours worked after midday	Public holiday	First 3 hours	After 3 hours
% of minimum hourly rate
100%	115%	130%	125%	150%	250%	150%	200%
$	$	$	$	$	$	$	$
Dry cleaning employee Level 1	19.49	22.41	25.34	24.36	29.24	48.73	29.24	38.98
Dry cleaning employee Level 2	20.06	23.07	26.08	25.08	30.09	50.15	30.09	40.12
Dry cleaning employee Level 3	20.34	23.39	26.44	25.43	30.51	50.85	30.51	40.68
Dry cleaning employee Level 4	21.54	24.77	28.00	26.93	32.31	53.85	32.31	43.08
Dry cleaning employee Level 5	22.70	26.11	29.51	28.38	34.05	56.75	34.05	45.40

¹Non successive morning, afternoon or night shift – dry cleaning means an employee in a dry cleaning workplace who works on any morning, afternoon or night shift which does not continue for a period of 3 successive mornings, afternoons or nights (see clause 25.6)

[173] At the hearing on 18 December 2019 there was no opposition to our provisional view. We confirm that view and will combine table C.1.2 and C.1.3 as set out above. The insertion of this table will require consequential numbering within C.1. The draft variation determination will be amended accordingly.

6.11 Educational Services (Schools) General Staff Award

[174] In the 14 October 2019 decision 97 we set out an issue that had been raised by ISV as follows:

[151] Independent Schools Victoria (ISV) makes a submission in relation to the definition of a ‘night shift’ in clause 15. In short, ISV is of the view that the multiple spreads of ordinary hours in clause 9.5 of the Award and definition of a ‘night shift’, in clause 15.1(c) as finishing at 6am, irrespective of the starting time of the relevant spread of ordinary hours, has created a situation where an overnight shift cannot be defined as a night shift in some circumstances.

[152] ISV proposes a variation to clause 15.1(c) as follows:

‘(c)’ night shift is a shift which is not a day shift and which finishes after midnight and at or before the commencement of the relevant spread of ordinary hours identified in clause 9.5, which may be varied by clause 9.6.’

[153] The IEU has not yet responded to ISV’s submission; the Commission will write to the IEU inviting them to do so. If the proposal is contested it will be referred to a separate, substantive issues, Full Bench.

[175] On 5 December 2019, the IEU responded to the ISV’s submission. The IEU supported the ISV submission and undertook to provide a draft determination giving effect to the changes by 9 December 2019. 98

[176] A draft determination was filed by the IEU on 12 December 2019. The draft determination states, relevantly:

‘1. By replacing clause 22.1(c) with the following clause:

‘(c) night shift is a shift which is not a day shift and which finishes after midnight and at or before the commencement of the relevant spread of ordinary hours identified in clause 14.5.’ 99

[177] At the hearing on 18 December 2019 there was no opposition to varying the draft variation determination to incorporate the change proposed in the IEU’s draft determination. We will amend the draft variation determination accordingly.

[178] During the hearing on 18 December 2019 the IEU drew our attention to the fact that the exposure draft and draft variation determination had not incorporated a series of amendments made to the award by a Full Bench of the Commission on 21 December 2015. These amendments are set out in PR575283.

[179] We advised the parties that we will issue a revised exposure draft and draft variation determination in January 2020. Interested parties will have an opportunity to comment on the revised documents and we will issue a Statement setting out the process for finalising the variation determination in respect of this award.

[180] In light of the amendments to be made to the exposure draft and draft variation determination, the Associations of Independent Schools (the Associations) withdrew their claims in respect of the formula in clause 12.2 and the unpaid meal break provisions. Further, at a conference before Deputy President Clancy on 18 December 2019 the parties agreed to some amendments to the example at the end of clause 12 and ABI withdrew its other proposed amendments to clause 12.2. The agreed variations to the example at the end of clause 12 are as follows:

Brad works 38 hours per week during term weeksand is classified at Level 3.1. The annual rate of pay for a full-time employee working 52.18 weeks of the school year is $45,031.

Brad is required to take leave without pay during non-term weeks.

As there are 39.4 term weeks in the school year, Brad is required to work 39.4 term weeks.

The formula in clause ~~7.2(b)~~12.2(b) is:

A = C x (working weeks + 4 weeks annual leave)

52.18

Calculating the adjusted annual salary:

Step 1: (working weeks + 4 weeks annual leave) = 39.4 + 4 = 43.4

Step 2: 43.4 / 52.18 = 0.8317

Step 3: $45,031 x 0.8317 = $37,452

Adjusted annual salary = $37,452

[181] There are two outstanding issues in respect of this award.

(i) Clause 21.3 Reasonable additional hours for part time employees

[182] In relation to clause 21.3 Reasonable additional hours for part-time employees, the Associations agree that clause 21.3 of the Exposure Draft is consistent with clause 22.4 of the current award 100 but submit that clause 22.4 of the current award could be more explicit when it comes to the maximum ordinary hours that can be worked in a week.101

[183] Clause 21.3 of the Exposure Draft currently provides:

21.3 Reasonable additional hours – part-time employees

(a) An employer may require a part-time employee to work reasonable additional hours in accordance with clause 21.3.

(b) The employee will be paid for all additional hours at the applicable casual hourly rate for all hours worked that:

(i) fall within the applicable daily spread of hours in clause 14.5;

(ii) do not result in the employee working more than 8 hours on that day; and

(iii) do not result in an employee whose hours are averaged, to work more than the allowed maximum weekly ordinary hours during the averaging period.

(c) The employee will be paid for all additional hours at the applicable overtime rate in clause 21—Overtime for all hours worked that:

(i) are outside the applicable daily spread of hours in clause 14.5; and

(ii) result in the employee working more than 8 hours on that day, or

(iii) result in an employee whose hours are averaged, to work more than the allowed maximum weekly ordinary hours during the averaging period.

(d) Where additional hours are worked on a day the employee is already attending for work, the minimum casual engagement of 2 hours will not apply.

(e) Additional hours worked by a part-time employee in accordance with clause 21.3 do not accrue leave entitlements under this award or the NES.

[184] The Associations submit that in the interests of assisting employers and employees to interpret the provision surrounding reasonable additional hours, clause 21.3(b)(iii) of the Exposure Draft be replaced with:

cl.21.3(b)

(iii) do not result in an employee:

• working more than the allowed maximum weekly ordinary hours;

• working more than the allowed maximum weekly ordinary hours during the averaging period, where the employee’s hours are averaged. 102

[185] The IEU agrees with the Associations proposal to vary clause 21.3.

[186] In the December 2019 Statement we expressed the provisional view that the proposed amendment be made. However, as we indicated to the parties during the course of the hearing on 18 December 2019, we have given the matter further thought and have formed the view that the expression ‘the allowed maximum weekly ordinary hours’ in the proposed amendment should be replaced by ‘38 hours per week’, to provide greater clarity. Clause 21.3(b) will now read:

‘(iii) do not result in an employee:

• working more than 38 ordinary hours per week; or

• working more than an average of 38 ordinary hours per week during the averaging period in which the employee’s hours are averaged.’

[187] Interested parties may comment on the proposed variation to clause 21.3(b) in the course of responding to the revised exposure drafts and draft variation determination.

(ii) Schedule C.2.1 Expense related allowances

[188] ABI submits that the words “an amount of up to” in schedule C.2.1 should be deleted. 103

[189] The uniform/protective clothing allowance and laundry allowances payable under clause 19.3(c) are subject to a weekly maximum of $6.00 and $1.50 respectively. The summary table in scheduleC.2.1 describes the weekly cap for the uniform/protective clothing allowance as:

‘Uniform/protective clothing allowance—paid with laundry allowance—Maximum per week—an amount of up to [$6.00 per week].’

[190] Similarly, the laundry allowance (when paid in addition to the uniform/protective clothing allowance) is described as:

‘Laundry allowance—additional to uniform/ protective clothing allowance—Maximum per week—an amount of up to [$1.50 per week].’

24 ABI submission, 27 November 2019 at [21].

25 Ai Group submission, 27 November 2019 at [7], the reference in clause 7.4(a) to clause 19 should be amended to clause 19.2; at [11], a space should be added between ‘(b)’ and ‘continuous’;

26 AWU submission 27 November 2019 at [6], in clause 21.3(e)(ii) the numeral “8” should be inserted where the word “eight” has been deleted in the first dot point.

27 Ai Group submission, 27 November 2019 at [19], the reference in clause 7.2 to clause 16 should be amended to clause 16.1; at [20], the reference in clause 11.4(a)(i) to clause 15.1 should be amended to clause 15; at [21] the full stop should be deleted after ‘8’ and ‘9’ in the daylight savings example, these will instead be amended ‘7.5’, ‘8.5’ and ‘9.5’ as appropriate; at [22], in clause 14.2 the words ‘seven and a half’ have been struck out and not replaced, ‘7.5’ should be inserted; at [23], in clause 20.1(a) the reference to ‘clause 20.1’ should be replaced with ‘clause 20’; at [24] in clause 20.2(b)(iv) the reference to clause 20.2(b) should be amended to clause 202(b)(iv); at [25], in clause 20.5(a) the words ‘employees’ and ‘of pay’ after ‘200%’ should be deleted. ABI submission, 27 November 2019 at [48], the example box under clause 13.6 includes the numbers ‘7 ½’ and ‘8 ½’. These should be amended to ‘7.5’ and ‘8.5’; at [49], in the second row of the table in clause B.2.1, the number ‘5 and a half’ appears - this should be amended to ‘5.5’. AWU submission 27 November 2019 at [6], the numeral ‘7.5’ in clause 14.2(a) has not been added.

28 Ai Group submission, 27 November 2019 at [29] the note at the top of Schedule B has been retained in error and should be deleted.

29 Ai Group submission, 27 November 2019 at [31], the reference to ‘clause 10.3 in clause 11.5(k)(ii) should be amended to ‘clause 10.2’. ABI’s 27 November 2019 at [26]-[27], the words ‘as it existed prior to that variation’ should be added at the end of clause 1.3 for clarity and consistency with other awards.

30 Ai Group submission, 27 November 2019.

31 Ai Group submission, 27 November 2019 at [37], the reference in clause 7.2 to clause 17 should be amended to clause 17.1; at [38] the reference to clause 11.3(c) in clause 11.3(b) should be amended to 11.3(b); at [40], in clause 13.1(b) the reference to ‘clause 13.1’ should be amended to .clause 13’. AWU submission 27 November 2019 at [14], in clause 21.7: The word “rate” is missing at the end of the sentence.

32 Ai Group submission, 27 November at [42], the various references to “2010” may require updating; at [43], the reference to “clause 10.3” should be replaced with “clause 10.4”, consistent with clause 26.1(a) in the current award; at [44], the separate numbering of the provision under the heading ‘Rates not cumulative’ in clause 20.10 is not necessary and should be deleted; at [45], ‘penalties’ should be replaced with ‘penalty rates’ in clause 20.10. . CPSU submission in reply, 9 December 2019 at [3] agrees various references to “2010” be updated; at [3] agrees reference to clause 10.3 be replaced with clause 10.4; at [3] agrees “Rates not cumulative” should be deleted; at [3] agrees “penalties” should be replaced in clause 20.10.

33 CFMMEU (Manufacturing) submission 6 November 2019 at [6] the cross reference in clause 11.8(i) should refer to clause 34, not clause 33; at [8]-[9]: the note appears twice in clause 20 and should only appear once.

34 Ai Group submission, 27 November 2019 at [33]-[34], a backwards slash has been included in error in the daily laundry allowance in clause C.2.1.

35 Ai Group submission, 27 November at [50], the cross reference in clause 13.1(c) to ‘clause 8—Types of employment’ should be replaced with ‘clause 10—Part-time employees”; at para 53, the end of clause 20.8(g) [sic.] should be amended by adding “s” at the end of “week” and a full stop; at para 54, a space should be inserted after “Definitions” in clause C.1.1.

36 Ai Group submission, 27 November 2019 at [50]-[51], at clause 21.6(a) and clause D.10.1, there is a space missing between ‘4’ and ‘hours’. Also see ABI submission 27 November 2019 at [50] and [51].

37 Local Government Associations submission, 27 November 2019 at [6], the words ‘and clause 22.3’ should be added at the end of clause 13.1(i); at [7], in clause 17.2(b), the word ‘clause’ should be inserted before ’17.2(a)’; at [8], the word ‘service’ should be amended to ‘services’ in clauses 19.2(f), 21.7(a) and 22.2(a); at [9], in clause 19.3(a)(ii) the word ‘be’ should be inserted between ‘will’ and ‘paid’; at [10.1], in clause 19.4(a)(i) the word ‘normal’ should be inserted before ‘starting’ where is first appears in the clause; at [10.2] clause 19.4(a)(ii) should be deleted as the term is already defined in clause 2, the subsequent subclauses should then be renumbered and the cross-references within the clause amended accordingly; at [11], in clause 20.3(c) the word ‘subclauses’ should be amended to ‘clauses at [12], in NOTE 1 to clause 23.7, a space should be inserted between ‘clause 23.7(d) and ‘may result’; at [13], in the table at C.1.1, a close parenthesis should be inserted after 3 references to ‘19.2(c)(iii)’; at [32] – [36], in Schedule C.1.1 the adverse working conditions allowance for level 1, 2 and 3 are paid hourly, the reference in the table to ‘per week’ should be amended to read ‘per hour.’ The sleepover allowance is also paid hourly and the reference in the table to ‘per week’ should be amended to read ‘per hour.’

38 AMWU submission, 27 November 2019 at 25 and 26, the AMWU submit that clause 33.12 be deleted as it no longer exists, which will result in the renumbering of the subsequent clauses; Clause 33.12 has been retained in error and should be deleted and subsequent clauses renumbered. AWU submission 27 November 2019 at [19], the cross-reference to clause 32.2(i) should be clause 32.2(j). Ai Group submission, 27 November at [57], the words in ‘leading boiler attendant or fireperson—first class’, ‘leading boiler attendant or fireperson—second class’ and ‘ship repairs’ in clause 2 should be in bold; at [58], the number “(c)” in clause 2 should be deleted before the definition of ‘radio industry’; at [59], the date in both dot points in clause 4.8(a)(xi) and in clause 4.8(a)(xiii) should be the date when the award is varied to reflect the terms of the exposure draft; at [60], two commas should be inserted in clause 12.8(c) as follows: “the requirements of the relevant State/Territory apprenticeship authority and any requirements of the relevant industry committee, which is currently the Manufacturing and Engineering Industry Reference Committee, with respect to …; at [64], “three3 hours” appears twice as a typographical error in clause C.1.1; at para 67. an apostrophe should be placed after ‘employees’ in the title of clause C.2 at [74] and [77], the following words in the headings for column 4 in clauses D.1.3 and D.2.1 should be deleted because columns 5 deal with the period for payment: ‘per hour unless otherwise stated.’ During the course of the hearing on 18 December 2019 ABI drew the Commission’s attention to the fact that the ‘footer’ on the exposure draft refers to an incorrect award code (MA15), it should be MA10.

39 ABI submission, 27 November 2019 at.[52], there is a typographical error in the word ‘predictable’ in 21.6(a). Ai Group submission, 27 November 2019 at [82], the reference in clause 7.4 to clause 23.1(b)(ii) should be deleted, only clause 23.1(b)(i) contemplates facilitation by majority agreement, at 83, the reference in clause 23.5 to clause 32 should instead be a reference to clause 33; at [88] the reference in clause 23.5 to clause 32 should be a reference to clause 33.

40 ABI submission, 27 November 2019 at [46], in the table at clause 7.2, the second column in row next to clause 50.9(d)(iv)) includes both ‘rates’ and ‘wages’ in error; delete the word ‘wages’, at [47], in clause 49.5(b)(i) [] the reference to ‘5 thousand’ should be replaced with ‘5000’. AWU submission 27 November 2019 at [23] the cross reference in clause 24.3 should be to clause 44; at [24], the cross-reference in clause 37.1(b)(ii) should be to clause 37.1(a) not clause 30.1(a).

41 ABI submission, 27 November 2019 at [22]-[25], there is a formatting discrepancy with subclause 21.5. The entirety of of subclause 21.5 is indented into a single paragraph identified as 21.5(a). There are no further paragraphs in the subclause (i.e. there is no paragraph 21.5(b) or above). This is inconsistent with the ordinary modern award formatting; Ai Group submission, 27 November 2019 at 94 the reference in clause 2 to clause 15.1 should be replaced with “clause 15.1(a)”. Clause 15 deals with the minimum rates payable to, for example, juniors and trainees. Consistent with the current clause 3.1 of the award, however, the standard rate is the weekly wage payable to adult employees as prescribed by clause 15.1(a); at [100], the reference in clause C.1 to clause 15.1 should be replaced with “clause 15.1(a)” to ensure consistency with our suggested amendments to the definition of “standard rate” in clause 2.

42 Ai Group submission, 27 November 2019 at [102]-[104] and [107]-[109], Ai Group submit that within clause 2 definitions, the definition of standard rate making reference to clause 15 should be replaced with clause 15.1 as clause 15 deals with minimum rates payable to employees, including juniors and trainees, whereas the standard rate payable to adult employees is prescribed by clause 15.1; the reference made to clause 15 in the definition of standard rate at clause 2, should be replaced with clause 15.1; at clause 7.2 facilitative provisions, the reference to clause 21.5 should be replaced with clause 21.5(b) as subclause (b) is the only facilitative clause; at clause 7.2 facilitative provisions, the reference made to clause 21.7 be deleted as it is not a facilitative clause; at clause 21.5(e) annual close down, the reference made to clause 21.10 appears to be an error and therefore should be replaced with clause 21.5; at clause C.1.1 wage-related allowances, the reference to clause 15 should be replaced with clause 15.1 to ensure consistency with the amendment to the definition of ‘standard rate’ in clause 2; at clause C.1.1 wage-related allowances, the ‘s’ before 17.2 be deleted.

43 Ai Group submission, 27 November 2019 at [110], Ai Group submit that at clause 19.5(d)(ii) the housing allowance states in error that the allowance is $3.10, and the allowance should be amended to $3.15 as reflected in table D.2.1

44 Ai Group submission, 27 November 2019 at [119], [121]-[122] and [126], Ai Group submit that at clause 7.3(a)(vi) facilitation by majority employment, the semicolon and “and” should be deleted and replaced with a full stop; at clause 20.3(f) hours of work, the reference to clause 20.3(c) appears to be made in error and should be replaced with “clause 20.3(d)”; Ai Group further submit that at clause 20.3(f), the terminology used in should be amended from “shift penalties” to “shift penalty rates” which is consistent with the changes made in clause 20.4; at clause C.1.1 wage-related allowances, the reference to clause 17.2(a) be replaced with “clause 17.2(a)(i)” for clarity.

45 Ai Group submission, 27 November 2019 at [128]-[129] insert ‘also’ in the definition of ordinary hourly rate; at [130] amend clause 15.1(e) to express the penalty/loading as a rate; at [131] replace ‘allowances’ with ‘rates’ in the preamble to clause 21.8.

46 MTO submission, 27 November 2019 at 1, the words ‘automotive parts interpreter – specialist’ should be in bold in line with other definitions in clause 2; Ai Group submission, 27 November 2019 at [141], in clause 7.2 the reference to ‘clause 11.6’ should be amended to ‘clause 11.6(g)’; at para 142, clause 11.6(j) has been listed under clause 7.2 and clause 7.4, it should just be listed under clause 7.4; at para 134, in the table at clause 11.4(a) the words ‘of overtime’ should be inserted in the final two rows to clarify that the rate applies to overtime; at para 144, in clause 11.4(c) the reference to ‘clause 11.4’ should be amended to ‘clause 11.4(a)’; at para 145, in clause 11.4(c) the reference to ‘clause 16.6(b)’ should be to ‘clause 16.6(c)’

47 Ai Group submission, 27 November 2019 at [163], in clause 11.9(c) insert ’11.9(b)’ after clause at the end the provision; at [164], the final paragraphs of clause 11.9 should be renumbered clause 11.9(h); at [165] replace ‘of’ with ‘or’ in clause 16.2(a); at [166] in clause 22.6(a) the reference to clause 22.5(a) should be replaced with a reference to clause 22.5; at [167] in clause 22.7(d) the reference to clause 22.7(a); at [168] clause 27.5(d)(iii) to be renumbered clause 27.5(c) and clauses 27.5(e) and (f) renumbered clauses 27.5(f) and (g) respectively; at [171] in the second sentence of clause B.2.2(a) ‘movement’ has been misspelt.

48 ABI submission, 27 November 2019 at paras. 38-39.

49 ABI submission, 27 November 2019 at para. 39.

50 TWU submission Road Transport (Long Distance Operations) Award 21 November 2019 at [4] – [5]

51 Transcript of Proceedings, 9 October 2019, see PN474 – PN484

52 [2009] AIRCFB 345

53 NatRoad submission dated 18 November 2019 at para [8]

54 NatRoad submission dated 18 November 2019 at para [9]

55 TWU submission dated 21 November 2019 at para [37]

56 TWU submission dated 21 November 2019 at para [43]

57 TWU submission dated 21 November 2019 at para [44]

58 TWU submission dated 21 November 2019 at para [44]

59 NatRoad submission dated 3 December 2019 at para [20]

60 NatRoad submission dated 3 December 2019 at para [23]

61 Ai Group submission, 27 November 2019 at [133].

62 Ai Group submission, 27 November 2019 at [134].

63 Ai Group submission, 27 November 2019 at [135]-[136].

64 Ai Group submission, 27 November 2019 at [137].

65 Ai Group submission, 27 November 2019 at [138].

66 Ai Group submission, 27 November 2019 at [139].

67 AMWU submission, 27 November 2019 at [6].

68 AMWU submission, 27 November 2019 at [6] and [9], Qantas submission, 26 November 2019 at 6.

69 AMWU submission, 27 November 2019 at [7]; 4 Yearly Review of Modern Awards – Airline Operations Ground Staff Award 2010 [2019] FWCFB 5619 at [111]; PR712352.

70 AMWU submission, 27 November 2019 at [9].

71 Ai Group submission 27 November 2019 at [12]-[16]

72 AMWU submission, 27 November 2019 at [11].

73 AMWU submission, 27 November 2019 at [12]; Transcript of proceedings 6 December 2016 at PN192

74 AMWU submission, 27 November 2019 at [14].

75 Qantas submission, 26 November 2019 at [3].

76 Qantas submission, 26 November 2019 at [4].

77 Subsequently confirmed by email

78 ACAA submission, 27 November 2019 at page 1

79 [2019] FWCFB 6138

80 Ai Group reply submission, 9 December 2019 at [13]-[15]

81 AWU submission 27 November 2019 at [9]

82 AWU submission 27 November 2019 at [10]

83 Ai Group reply submission, 9 December 2019 at [16]-[17]

84 The AWU subsequently filed a note setting out the position agreed to by the AWU and Ai Group

85 AWU submission 27 November 2019 at [11]

86 Ai Group reply submission, 9 December 2019 at [18]

87 We note that Ai Group withdrew its earlier submission proposing an amendment to clause 4.5(d)

88 Ai Group submission, 27 November 2019 at [27]

89 UWU submission 9 December 2019 at [3]

90 Transcript of Proceedings, 18 December 2019 at PN160

91 AWU submission 27 November 2019 at [12].

92 AWU submission 27 November 2019 at [14].

93 AWU submission 27 November 2019 at [15].

94 AWU submission 27 November 2019 at [16].

95 Ai Group submission, 27 November at [46]-[47].

96 AWU submission 27 November 2019 at [17].

97 [2019] FWCFB 6935

98 IEU submission, 5 December 2019

99 The cross references in the original draft determination were amended during the course of the hearing on 18 December 2019, see Transcript 18 December 2019 at [389]

100 Associations of Independent Schools submission, 27 November 2019 at [19].

101 Associations of Independent Schools submission, 27 November 2019 at [20].

102 Associations of Independent Schools submission, 27 November 2019 at [22].

103 ABI submission, 27 November 2019 at [28]-[32].

104 ABI submission, 27 November 2019 at [31].

105 ABI submission, 27 November 2019 at [35].

106 IEU reply submission 9 December 2019 at [10]

107 ABI reply submission 9 December 2019 at [19]

108 Group of Eight Universities submission, 28 October 2019 filed in the Overtime for Casuals matter

109 Group of Eight Universities submission, 27 November 2019 at [4].

110 Group of Eight Universities submission, 27 November 2019 at [5].

111 ABI submission, 27 November 2019 at [40].

112 ABI submission, 27 November 2019 at [41].

113 AHA application, 27 November 2019

114 Epic Employment Service Inc. T/A Epic Assist [2019] FWC 8142. The Agreement was subsequently approved by Commissioner McKinnon with a written undertaking that the employer undertakes that clause 10.4(b) will have no effect and will not be applied as a term of the Agreement: [2019] FWCA 8307.

115 [2014] FWCFB 3202

116 AMWU submission, 27 November 2019 at [17].

117 AMWU submission 27 November 2019 at [18]

118 Ibid at [19]

119 Exposure Draft – Manufacturing and Associated Industries and Occupations Award 20XX republished 14 October 2019 Clause C.3.1.

120 AMWU submission, 27 November 2019 at [23].

121 Correspondence from Australian Business Lawyers and Advisors to Fair Work Commission dated 10 October 2019

122 ABI reply submission, 9 December 2019 at [44]

123 Ai Group reply submission 9 December 2019 at [31]

124 AMWU submission, 27 November 2019 at [27].

125 AMWU submission, 27 November 2019 at [28]; Clause 31.7(a) of the Exposure Draft republished on 14 October 2019, it provides that a day worker performing work on a public holiday must be paid 250% of the ordinary hourly rate.

126 AWU submission 27 November 2019 at [20].

127 Ai Group reply submission 9 December 2019 at [33]

128 ABI submission, 27 November 2019 at [42].

129 ABI submission, 27 November 2019 at [43].

130 ABI submission, 27 November 2019 at [44].

131 ABI submission, 27 November 2019 at [45].

132 Ai Group submission, 27 November 2019 at [61].

133 Ai Group submission, 27 November 2019 at [63].

134 Ai Group submission, 27 November 2019 at [66]

135 AWU reply submission, 9 December 2019 at [40]

136 Ai Group submission, 27 November 2019 at [65].

137 Ai Group submission, 27 November 2019 at [68]-[69].

138 Ai Group submission, 27 November 2019 at [70].

139 Ai Group submission, 27 November 2019 at [71].

140 Ai Group submission, 27 November 2019 at [72].

141 Ai Group submission, 27 November 2019 at [73].

142 Ai Group submission, 27 November 2019 at [75].

143 Ai Group submission, 27 November at [76].

144 AMWU reply submission, 9 December 2019 at [53]

145 Ai Group submission, 27 November at [78].

146 AMWU reply submission, 9 December 2019 at [61]

147 Ai Group submission, 27 November 2019 at [79].

148 Ai Group submission, 27 November 2019 at [81].

149 Ai Group submission, 27 November 2019 at [84].

150 Ai Group submission, 27 November 2019 at [86].

151 Ai Group submission, 27 November at [87].

152 Ai Group submission, 27 November 2019 at [89]-[91].

153 ABI submission, 27 November 2019 at [53]’

154 ABI submission, 27 November 2019 at [53]

155 Ai Group submission, 27 November at [92].

156 AWU submission 27 November 2019 at [21].

157 AWU submission 27 November 2019 at [21].

158 RACV Road Service Pty Ltd v Australian Municipal, Administrative, Clerical and Services Union[2015] FWCFB 8554

159 AWU submission 27 November 2019 at [22].

160 AWU submission 27 November 2019 at [23].

161 AWU submission 27 November 2019 at [25].

162 AWU submission 27 November 2019 at [26].

163 [2018] FWCFB 6368 at [45] to [48]

164 Ai Group submission, 23 October 2019 at pp. 2-3.

165 Ai Group submission, 27 November at [95].

166 Ai Group submission, 27 November at [97].

167 Ai Group submission, 27 November at [97].

168 Ai Group submission, 27 November at [97].

169 Ai Group submission, 27 November at [98].

170 Ai Group submission, 27 November at [99].

171 Ai Group submission, 27 November 2019 at [105].

172 Ai Group submission, 27 November 2019 at [106].

173 Ai Group submission, 27 November 2019 at [120].

174 Ai Group submission, 27 November 2019 at [123].

175 Ai Group submission, 27 November 2019 at [124].

176 Ai Group submission, 27 November 2019 at [124]-[125].