4 Yearly Review of Modern Awards--Award Stage--Group 1

[2018] FWCFB 3802

[2018] FWCFB 3802 

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.156 – 4 yearly review of modern awards

4 yearly review of modern awards—Award stage—Group 1

(AM2014/64 and others)

JUSTICE ROSS, PRESIDENT
VICE PRESIDENT HATCHER
SENIOR DEPUTY PRESIDENT HAMBERGER
DEPUTY PRESDENT BULL
COMMISSIONER BISSETT MELBOURNE, 28 JUNE 2018

4 yearly review of modern awards – award stage – exposure drafts – technical and drafting issues – Group 1 – outstanding issues.

CONTENTS

Page	Paragraph
1. Introduction	5	[1]
2. General Issues	6	[7]
2.1 Additional week’s leave for seven day shiftworkers—alleged NES inconsistences	6	[7]
2.2 Overtime entitlements for casual employees	6	[17]
2.3 Casual conversion	8	[19]
3. Review of Group 1 Awards	9	[21]
3.1 Aluminium Industry Award 2010	9	[21]
3.2 Ambulance and Patient Transport Award 2010	11	[32]
3.3 Asphalt Industry Award 2010	18	[74]
3.4 Black Coal Mining Industry Award 2010	18	[77]
3.5 Cement and Lime Award 2010 and Quarrying Award 2010	23	[104]
3.6 Concrete Products Award 2010	27	[125]
3.7 Cotton Ginning Award 2010	31	[153]
3.8 Gas Industry Award 2010	35	[174]
3.9 Hydrocarbons Industry (Upstream) Award 2010	40	[188]
3.10 Marine Tourism and Charter Vessels Award 2010	40	[191]
3.11 Maritime Offshore Oil and Gas Award 2010	46	[216]
3.12 Meat Industry Award 2010	48	[228]
3.13 Mining Industry Award 2010	56	[241]
3.14 Oil Refining and Manufacturing Award 2010	62	[270]
3.15 Pharmaceutical Industry Award 2010	66	[302]
3.16 Poultry Processing Award 2010	72	[331]
3.17 Premixed Concrete Award 2010	75	[346]
3.18 Professional Diving Industry (Industrial) Award 2010	77	[357]
3.19 Professional Diving Industry (Recreational) Award 2010	78	[366]
3.20 Rail Industry Award 2010	79	[371]
3.21 Salt Industry Award 2010	81	[379]
3.22 Stevedoring Industry Award 2010	83	[391]
3.23 Textile, Clothing, Footwear and Associated Industries Award 2010	85	[401]
3.24 Timber Industry Award 2010	90	[423]
3.25 Wool Storage, Sampling and Testing Award 2010	90	[431]
5. Next steps	95	[454]

ABBREVIATIONS

ABI	Australian Business Industrial and the New South Wales Business Chamber (jointly ABI)
ACTU	Australian Council of Trade Unions
AFEI	Australian Federation of Employers and Industry
Ai Group	Australian Industry Group
AMIC	Australian Meat Industry Council
AMIEU	The Australasian Meat Industry Employees’ Union
AMMA	Australian Mines and Minerals Association
AMPTO	Association of Marine Park Tourism Operators
AMWU	Australian Manufacturing Workers’ Union
APESMA	The Association of Professional Engineers, Scientists and Managers, Australia
August 2014 decision	[2014] FWCFB 5537
AWU	The Australian Workers’ Union
Business SA	Business South Australia
Casual and Part-time decision	[2017] FWCFB 3541
CFMEU M&E	Construction, Forestry, Mining and Energy Union (Mining and Energy Division)
CMIEG	Coal Mining Industry Employer Group
Commission	Fair Work Commission
CBWP	Competency Based Wage Progression
December 2014 decision	[2014] FWCFB 9412
FWO	Office of the Fair Work Ombudsman
HSU	Health Services Union of Australia
July 2015 decision	[2015] FWCFB 4658
July 2017 decision	[2017] FWCFB 3433
June 2017 decision	[2017] FWCFB 3177
May 2015 decision	[2015] FWCFB 3023
MUA	Maritime Union of Australia
October 2015 decision	[2015] FWCFB 7236
October 2017 decision	[2017] FWCFB 5536
Qube	Qube Ports Pty Ltd, Qube Bulk Pty Ltd and DP World group of companies (jointly Qube)
Review	4 yearly review of modern awards under s.156 of the Fair Work Act 2009
September 2015 decision	[2015] FWCFB 6656
TCFUA	Textile, Clothing and Footwear Union of Australia
the Aluminium Award	Aluminium Industry Award 2010
the Ambulance Award	Ambulance and Patient Transport Industry Award 2010
the Asphalt Award	Asphalt Industry Award 2010
the Black Coal Award	Black Coal Mining Industry Award 2010
the Cement and Lime Award	Cement and Lime Award 2010
the Cement, Lime and Quarrying Awards	Cement and Lime Award 2010 and the Quarrying Award 2010
the Cleaning Award	Cleaning Services Award 2010
the Concrete Products Award	Concrete Products Award 2010
the Cotton Ginning Award	Cotton Ginning Award 2010
the Gas Award	Gas Industry Award 2010
the Hydrocarbons (Upstream) Award	Hydrocarbons Industry (Upstream) Award 2010
the Manufacturing Award	Manufacturing and Associated Industries and Occupations Award 2010
the Marine Tourism Award	Marine Tourism and Charter Vessels Award 2010
the Mining Award	Mining Industry Award 2010
the Oil Refining Award	Oil Refining and Manufacturing Award 2010
the Pharmaceutical Award	Pharmaceutical Industry Award 2010
the Poultry Award	Poultry Processing Award 2010
the Premixed Concrete Award	Premixed Concrete Award 2010
the Professional Diving Industrial Award	Professional Diving Industry (Industrial) Award 2010
the Professional Diving Recreational Award	Professional Diving Industry (Recreational) Award 2010
the Quarrying Award	Quarrying Award 2010
the Rail Award	Rail Industry Award 2010
the Salt Award	Salt Industry Award 2010
the Security Award	Security Services Industry Award 2010
the Stevedoring Award	Stevedoring Industry Award 2010
the Textile Award	Textile, Clothing, Footwear and Associated Industries Award 2010
the Vehicle Award	Vehicle Manufacturing Repair, Services and Retail Award 2010
the Wool Storage Award	Wool Storage, Sampling and Testing Award 2010

1. Introduction

1. Section 156 of the Fair Work Act 2009 (the Act) requires the Fair Work Commission (the Commission) to review all modern awards every four years (the Review). In the Award stage of the Review the 122 modern awards have been divided into 4 groups. This decision deals with a number of outstanding technical and drafting issues arising out of Group 1 of the award stage. The 30 awards allocated to Group 1 are listed at Attachment A to this decision. The Group 1 awards are divided into five subgroups (1A, 1B, 1C, 1D and 1E).

1. The technical and drafting issues in the Group 1A and 1B awards were considered in a decision published 23 December 2014 (December 2014 decision),[1] while Group 1C, 1D and 1E  awards were dealt with in a decision published on 23 October 2015 (October 2015 decision).[2] The background in relation to the proceedings for Group 1 awards is set out in these decisions. On 9 June 2017 we published a further decision with respect to Group 1 awards (June 2017 decision).[3] Revised exposure drafts and summaries of submissions were republished in June 2017. The June 2017 decision directed parties to review the exposure draft and provide any comments on possible errors or outstanding issues they wish to press.

1. This decision should be read in conjunction with earlier decisions and statements concerning the Review, and in particular the December 2014 decision, the 13 July 2015 (July 2015 decision)[4] and 30 September 2015 (September 2015 decision),[5] in which the Commission dealt with a number of general drafting and technical issues common to multiple exposure drafts.

1. The June 2017 decision resolved outstanding issues in the Manufacturing and Associated Industries and Occupations Award 2010 (the Manufacturing Award) with the exception of the changes arising from the decision to incorporate the manufacturing stream from the Vehicle Manufacturing Repair, Services and Retail Award 2010 (the Vehicle Award) into the Manufacturing Award. The parties to the Manufacturing Award have reached an agreed position in relation to the incorporation of the vehicle manufacturing stream and an updated exposure draft was published on 17 April 2018.[6] The outstanding technical and drafting matters in the Cleaning Services Award 2010 (the Cleaning Award) and the Security Services Industry Award 2010 (the Security Award) will be dealt with in the second tranche of the plain language drafting process.[7]

1. In relation to the Vehicle Award, the parties have resolved a range of technical and drafting issues.  These are reflected in the revised exposure draft published on 27 June 2018. A number of matters in relation to the Vehicle Award were referred to a substantive issues Full Bench. The revised exposure draft reflects the changes arising from the substantive issues Full Bench decision on 16 August 2016[8] to remove the Vehicle Manufacturing stream from the Vehicle Award and incorporate those into the Manufacturing Award.

1. This decision finalises the technical and drafting issues in the Group 1 awards, except for the Cleaning Award and the Security Award.

2. General issues

2.1      Additional week’s leave for seven day shiftworkers—alleged NES inconsistences

1. The Australian Industry Group (Ai Group) raised an issue in relation to the annual leave clauses in a number of awards, submitting that these awards should be varied as they provide conditions that have previously been found to be inconsistent with the National Employment Standards (NES) contained in s.87(2) of the Act.[9] This issue affects the following Group 1 awards:

·  Aluminium Industry Award 2010 (the Aluminium Award)

·  Asphalt Industry Award 2010 (the Asphalt Award)

·  Cement and Lime Award 2010 (the Cement and Lime Award) and the Quarrying Award 2010 (the Quarrying Award)

·  Cleaning Services Award 2010 (the Cleaning Award )

·  Premixed Concrete Award 2010 (the Premixed Concrete Award)

1. In the December 2014 decision the Full Bench found that a number of award clauses relating to the accrual of annual leave for shiftworkers were inconsistent with the NES, and in particular with s.87(2) of the Act, because they contained a minimum qualifying period and provided that the additional entitlement accrued on a monthly not a daily basis. In a further decision issued on 8 May 2015 (May 2015 decision)[10] the Full Bench determined that such clauses be deleted.

1. The awards listed at para [7] above appear to have been omitted from the list of awards identified as containing a possible NES inconsistency in the December 2014 and May 2015 decisions.

1. The following table identifies each clause reference in the relevant Exposure Draft and the current award.

Award	Current Award clause	Exposure Draft clause
Aluminium Award	22.2(c)	15.1(b)(iii)
Asphalt Award	25.2(b)	15.2(b)
Cement and Lime Award	24.2	15.2(b)
Cleaning Award	29.2(b)	15.2(b)
Quarrying Award	29.2	15.2(b)
Premixed Concrete Award	24.2	15.2(b)

1. In relation to the Aluminium Award, Ai Group submits that clause 15.1(b)(iii) provides annual leave to shiftworkers on an incremental basis rather than progressively and is similar to a provision that was removed from the Manufacturing Award in the May 2015 decision.[11] It appears the drafting of the clause in the Aluminium Exposure Draft and the current award allows for incremental accrual over a period of up to a fortnight. It is our provisional view that this is inconsistent with s.87(2) of the Act.

1. In relation to the Asphalt Award, the clause in question contains a qualifying period of 12 months’ continuous service before an employee who works part of the year as a seven day shiftworker is entitled to additional leave. It also provides that the leave will accrue incrementally at the rate of one day’s leave for each 36 shifts an employee is continuously engaged. Section 87(2) does not contain a qualifying period for this entitlement and provides that leave will be accrued progressively. It is our provisional view that the clause as presently drafted is inconsistent with a provision of the NES.

1. In relation to the Cement, Lime and Quarrying Awards the clause makes provision for accrual on a periodic basis rather than progressively. It appears to be inconsistent with the NES and it is our provisional view that it should be deleted in accordance with our previous decisions. The clauses in the Cement and Lime Award and Quarrying Awards should be varied to read as follows:

In addition to the leave provided for in Division 6 of the NES, shiftworkers who are rostered to work regularly on Sundays and public holidays will be allowed an additional one week’s leave.

1. In relation to the Cleaning Award, the clause in question contains a qualifying period of 12 months’ continuous service before an employee who works part of the year as a seven day shiftworker is entitled to additional leave. As noted above at [11], s.87(2) does not contain a qualifying period for this entitlement and provides that leave will be accrued progressively. It is our provisional view that the clause as presently drafted is inconsistent with a provision of the NES.

1. In relation to the Premixed Concrete Award, the clause contains a qualifying period of one year before an employee who works part of the year as a seven day shiftworker is entitled to additional leave. It also provides that the leave will accrue incrementally at the rate of one day’s leave for each 36 shifts an employee is engaged as a seven day shiftworker. Section 87(2) does not contain a qualifying period for this entitlement and provides that leave will be accrued progressively. It is our provisional view that the clause is inconsistent with the NES.

1. Interested parties who wish to comment on our provisional views outlined above at paragraphs [11]-[15], are to do so by no later than 4.00 pm on Monday 16 July 2018. If no submissions are received, we will issue determinations varying the relevant awards and amending the Exposure Drafts accordingly.

2.2      Overtime entitlements for casual employees

1. The issue of overtime for casuals has been identified as an outstanding issue in respect of a number of modern awards. The substantive matters of overtime entitlements for casuals in the Sporting Organisations Award 2010 and the Fitness Industry Award 2010 were referred to a separately constituted Full Bench for consideration (in AM2017/51). On 4 December 2017, the Full Bench constituted to deal with the Sporting Organisations Award 2010 and the Fitness Industry Award 2010 published a Statement[12] identifying a number of other awards with similar issues.

1. The following Group 1 awards contain some ambiguity about whether overtime is payable to casual employees, when such overtime commences, or the rate at which overtime is payable (or some combination of the three). These awards have been referred to the Full Bench constituted to deal with AM2017/51:

·  Aluminium Award

·  Ambulance Award

·  Asphalt Award

·  Black Coal Award

·  Cement and Lime Award

·  Cleaning Award

·  Concrete Products Award

·  Cotton Ginning Award

·  Gas Award

·  Hydrocarbons Award

·  Manufacturing Award

·  Marine Tourism Award

·  Meat Award

·  Mining Award

·  Oil Refining Award

·  Pharmaceutical Award

·  Poultry Award

·  Premixed Concrete Award

·  Professional Diving Industrial Award

·  Professional Diving Recreational Award

·  Quarrying Award

·  Rail Award

·  Salt Award

·  Security Award

·  Stevedoring Award

·  Textile Award

·  Vehicle Award

·  Wool Storage Award

2.3 Casual conversion clause

1. We note the issue of casual conversion is currently before the Casual Employment Full Bench (AM2014/197). A number of issues relating to the casual conversion clause have been raised by the parties in relation to specific awards in Group 1. If the matter is not determined by the Casual Employment Full Bench parties have liberty to raise the issues prior to the conclusion of the Review.

1. We will now turn to each of the Group 1 awards under review.

1. Review of group 1 awards

3.1      Aluminium Industry Award 2010

1. A summary of submissions regarding outstanding issues for the Exposure Draft of the Aluminium Award was published on 22 March 2018. Ai Group and The Australian Workers’ Union (AWU) made submissions in relation to the outstanding technical and drafting issues for this award. The summary notes that items 1-7, 9-12, 18, 22 and 23 were either confirmed as resolved by agreement or determined by a previous Full Bench decision. The variations to the Exposure Draft will be made for those items.

1. Items 8 and 13–17 have been referred to the Plain Language Full Bench. The summary of submissions notes that item 21 is currently before the Annual leave Full Bench (AM2014/47). This item deals with a submission of Ai Group relating to the issue of payment on termination of employment.

1. Item 20 is dealt with at paragraphs [6] – [14] above.

1. Item 19 remains outstanding.

Item 19—Rest period after overtime

1. Ai Group submits that clause 14.4(c) of the Exposure Draft should be amended by inserting the words ‘ordinary hourly rate’ after the term ‘200%’.[13] Currently, the Exposure Draft[14] at clause 14.4(c) provides as follows (noting that the word ‘such’ has been inserted by previous agreement between the parties):

‘14.4     Rest period after overtime

. . .

(c)If on the instructions of the employer an employee resumes or continues work without having had the 10 consecutive hours off duty the employee must be paid at the rate of 200% until the employee is released from duty for such period. The employee is then entitled to be absent until the employee has had 10 consecutive hours off duty without loss of pay for ordinary hours occurring during the absence.’

1. Ai Group asserts that the proposed change should be made ‘[c]onsistent with the Commission’s earlier decision that penalties and loadings contained in awards are to be applied to the minimum rate prescribed by an award (to the exclusion of over-award payments)’.[15]

1. No other party has made a submission on this issue.

1. We agree that the clause as currently drafted is unclear as to which rate is to be used for the calculating of the 200% payment.

1. In the December 2014 decision we noted that the exposure drafts have been prepared using the following principle:

‘Where an award contains an allowance or loading that is payable for all purposes, the term ‘ordinary hourly rate’ has been used to express penalties and loadings (e.g. “overtime is payable at 200% of the ordinary hourly rate” in draft Premixed Concrete Award 2014).’ [16]

1. The December 2014 decision concluded that the use of the term ‘ordinary hourly rate’ required further consideration and the matter was the subject of a further hearing in March 2015. In the July 2015 decision, the Full Bench clarified that;

‘[t]he term ‘ordinary hourly rate’ has been used in contrast to ‘minimum hourly rate’ in affected awards to make it clear that all purpose allowances must be added to the minimum rate of pay before calculating any penalty rate.

In affected awards, penalties and loadings are expressed as a percentage of the ordinary hourly rate, for example “overtime is paid at 150% of the ordinary hourly rate” to make it clear that an all purpose allowance to which an employee is entitled must be added to the minimum rate before calculating the loaded rate, that is, there is a compounding effect.’[17]

1. The Aluminium Award contains an all purpose allowance and the term ‘ordinary hourly rate’ is a defined term in the Exposure Draft. Based on the reasoning in the December 2014 and July 2015 decisions, the penalty contained in clause 14.4(c) of the Exposure Draft should be amended to include the term ‘ordinary hourly rate’. The clause will read as follows:

14.4     Rest period after overtime

. . .

(c)If on the instructions of the employer an employee resumes or continues work without having had the 10 consecutive hours off duty the employee must be paid at the rate of 200% of the ordinary hourly rate until the employee is released from duty for such period. The employee is then entitled to be absent until the employee has had 10 consecutive hours off duty without loss of pay for ordinary hours occurring during the absence.

3.2      Ambulance and Patient Transport Award 2010

1. A summary of submissions regarding outstanding issues for the Exposure Draft of the Ambulance and Patient Transport Award 2010 (the Ambulance Award) was published on 22 March 2018. Ai Group, Ambulance Victoria, Health Services Union of Australia (HSU) and United Voice made submissions in relation to the outstanding technical and drafting issues of this award. Items 1, 2, 4, 6, 7, 11, 14 and 17 were confirmed as either resolved by agreement, determined in a previous Full Bench decision or related to minor typographical or cross-referencing errors which have been corrected. The variations to the Exposure Draft will now be made for those items. Items 9 and 15 have been referred to the Plain Language Full Bench.

1. Items 3, 5, 8, 10, 12, 13, 16, 18 and 19 remain outstanding.

Item 3—Types of employment—part-time employees

1. Clause 6.4 of the Exposure Draft[18] deals with provisions related to part-time employees.

1. The HSU submits that clause 6.4 of the Exposure Draft omits a provision of the current award which should be retained. Clause 10.4(e) of the current award provides that ‘the provisions of clause 31—Public holidays will apply to part time employees.’[19] The HSU ‘sees no reason for this omission and is of the view that this clause should be retained in the exposure draft.’[20]

1. It appears that clause 10.4(e) in the current award has been omitted in error and we propose to insert this clause after clause 6.4(e) of the Exposure Draft in the same terms as provided for in the current award.

Item 5—Types of employment—casual employees

1. Clause 6.5(a) of the Exposure Draft provides that:

‘6.5       Casual employees

(a)A casual employee is an employee who is engaged and paid as a casual employee.’

1. The HSU submits that this clause omits the following phrase ‘but will not include a part-time or full-time employee’ as provided in clause 10.5(a) in the current award.[21]

1. Clause 10.5(a) of the current award is set out as follows:

‘10.5 Casual employment

A casual employee is an employee who is engaged and paid as such but will not include a part-time or full-time employee.’

1. The HSU assert that this omission represents a significant and substantive change to the clause and that the words ‘but will not include a part-time or full-time employee’ should be returned to the provision.[22]

1. In a decision relating to the plain language project, a Full Bench considered the terms of the casual employment clause in the Pharmacy Industry Award 2010 Exposure Draft.[23] During that consideration it was noted that ‘…there appears to be a consensus that a person who does not meet the defined characteristics of a full-time or a part-time employee must be engaged as a casual and paid the casual loading’.[24]

1. Clause 6.5(a) of the Exposure Draft is a change from the wording contained in the current award and we propose to reinsert the current wording into the Exposure Draft. Clause 6.5(a) will be amended as follows:

‘(a)        A casual employee is an employee who is engaged and paid as a casual employee and will not include a part-time or full-time employee.’

Item 8—Breaks—paid crib time

1. Clause 9 of the Exposure Draft deals with Breaks as follows:

‘9. Breaks

9.1 Unpaid meal breaks

An employee is entitled to an unpaid meal break of not less than 30 minutes during each shift. The meal break will not count as time worked.

9.2 Paid crib time

(a) By mutual agreement between the employer and the employee, an employee will be allowed a period of 20 minutes crib time during each shift for the purpose of taking a meal, instead of a meal break under clause 9.1.

(b) An ambulance service operational employee will be allowed a period of 20 minutes crib time during each shift for the purpose of taking a meal, instead of a meal break under clause 9.1.

(c) The crib period will be counted as time worked and taken at a time and place directed by the employer.

9.3 Paid rest breaks

Where practical, employees are entitled to two 10 minute rest breaks each day, counted as time worked, as follows:

(a) the first, between starting work and the usual meal break; and
(b) the second between the usual meal break and finishing work.

9.4 Changing time

Where an employee is not permitted to wear their uniform home, a period of 10 minutes immediately preceding the end of each period of duty will be allowed for the employee to wash, shower and/or to change clothing.’

1. United Voice submits that clause 9 provides that only ‘ambulance service operational employees’ (our emphasis) are entitled to paid crib time[25] and submits that the clause 9.2 should read simply ‘operational employees’ to ensure that employees engaged in the private sector in the operational classifications (specified at clause 10.2 of the Exposure Draft) continue to receive paid meal breaks.[26]

1. United Voice notes that the term ambulance service is not defined in the Exposure Draft and submits that there is now ‘a greater density of private non-emergency patient transport providers in operation in the sector’.[27]

1. United Voice submits that operational employee should be defined in the award as ‘an employee engaged in a classification provided for in Schedule A – Classification Definitions, subclause A.1 Operational Classifications’.[28]

1. The paid crib time clause in the Exposure Draft (clause 9.2) is set out in substantially the same form as that contained in the Ambulance Award at clause 23.2 (with cross references amended). The term “ambulance service operational employee” appears at clause 23.2(b) of the Ambulance Award and it is not a defined term in that award.

1. Clause 23.2 of the Ambulance award appears to be derived from the Ambulance Services and Patient Transport Employees Award, Victoria 2002 (Ambulance Services 2002 Award)[29] which contained an equivalent provision at clause 29,  as follows:

‘29.2.2   A MAS operational employee will be allowed a period of twenty minutes crib time during each shift for the purpose of taking a meal, in lieu of a meal break under 29.1.’

1. MAS is defined at clause 6.17 of the Ambulance Services 2002 Award as ‘the Metropolitan Ambulance Service’. The term operational employee was not defined.

1. Our provisional view is that there is no reason to distinguish between private and public sector employers in terms of the breaks to be provided to operational employees and on that basis it is our provisional view to amend the Exposure Draft in the manner proposed by United Voice.

1. Interested parties have until 4.00 pm on Monday 16 July 2018 to comment on the provisional views outlined above at [50].

Item 10—Wages and allowances—minimum wages

1. The HSU submits that the Exposure Draft sets out minimum wages in three separate tables at clauses 10.2 to 10.4, rather than in one table as they appear in the current award, and suggests an introductory statement to explain the new layout.[30]

1. We agree that the new layout requires some clarification. The tables provide minimum weekly rates and minimum hourly rates for operational classifications at years one, two and three, which is different to the layout in the current award and also differs from the layout for the clerical and administrative support classifications in the Exposure Draft at clause 10.5.

1. We have decided to insert an introductory statement as follows:

‘The following tables provide minimum weekly and hourly rates by year of service.’

1. The introductory statement will be inserted at clause 10.2 of the Exposure Draft and the subsequent clauses will be renumbered.

Item 12—Penalties and overtime—penalty rates

1. Clause 13.2 of the Exposure Draft provides that;

‘13.2     Penalty rates are not payable for overtime hours worked by the employee.’

1. United Voice submits that ‘[t]his represents a proposed cut by the Fair Work Commission in the penalty rates of workers…’[31] and that casual employees are not excluded from the entitlement to overtime nor the operation of the overtime penalty rates clause in the current award. United Voice submits that ‘[c]asual employees in the ambulance and patient transport sector have always received both overtime and the casual loading'[32] and that the ‘Fair Work Ombudsman Pay Guide- Ambulance and Patient Transport industry Award 2010 [MA000098] provides for casuals to be paid both the casual and overtime penalty when working overtime.’[33]

1. In our view United Voice have misinterpreted clause 13.2 of the Exposure Draft. The intention of clause 13.2 was to clarify that penalty rates and overtime rates are not cumulative payments, employees receive either the penalty rate or the overtime rate, but not both. Clauses of a similar nature appear in other awards. The casual loading is not a ‘penalty rate’.

1. However, to avoid any confusion we have decided to remove the clause from the Exposure Draft, as it is not a provision which exists in the current award.

1. We note that the issue of whether casuals employees are entitled to receive overtime is being dealt with by a Full Bench in AM2017/51. A Statement[34] was issued outlining a process for parties seeking a variation to any of the modern awards identified. The Ambulance Award is one of the awards identified in that Statement.[35] 

Item 13—Overtime—on call

1. Clause 14.5 of the Exposure Draft sets out provisions for employees who are on call, in the following terms:

‘14.5 On call

(a) Time on call will not be counted as time worked unless an employee is called out for duty. If called out for duty, the employee will be paid at the rate of 200% of their ordinary hourly rate for such period(s) of duty with a minimum payment of one and a half hours per call, for the time so worked in any period during which the employee is on call, provided that one and a half hours has elapsed from the commencement of the previous call.

(b) Nothing in this clause prohibits an employee from temporarily leaving the workplace or home when rostered on call after having made arrangements satisfactory to the employer, for the proper conduct of the service.

(c) An employee will be free from on call duty:

(i) every second weekend; and

(ii) for at least eight days in each 14 consecutive days.

(d) No employee will be rostered on call from the time of ceasing duty immediately before the employee’s rostered day off until the time of commencing duty immediately after the rostered day off.

(e) Except on weekends, public holidays or in cases of an emergency, an employee will not be rostered on call between 9.00 am and 5.00 pm.

(f) An on call roster will not require an employee to be on call for a period of less than six hours except by mutual consent between the employer and employee concerned.

(g) An employee who is rostered to be on call is entitled to an on call allowance in accordance with clause 11.2(h).’

1. The HSU submits that clause 14.5 should be restructured so that clause 14.5(g) (which provides for the on call allowance) appears at the front of the clause and not the end,[36] as is the case in the equivalent clause in the current award.

1. We agree and will move clause 14.5(g) from the end of the clause to now be clause 14.5(a) and renumber the following sub clauses accordingly.

Item 16—Annual leave—payment for annual leave

1. The HSU submits that the term “ordinary hourly rate” has been inserted incorrectly into clause 15.7(a) of the Exposure Draft.[37]

1. Clause 15.7(a) of the Exposure Draft provides:

‘15.7     Payment for annual leave

(a)Before the start of annual leave, the employer must pay the employee for the employee’s ordinary hours of work in the period at the employee’s ordinary hourly rate. This includes any allowances, loading, shift penalties or overaward payments which would have been received had the employee not been on leave.’

(emphasis added)

1. Clause 30.4 of the current award provides as follows:

‘30.4     Payment for annual leave

Before going on annual leave, an employee will be paid the amount of wages they would have received for ordinary time worked had they not been on leave during that period. This includes any allowances, loading, shift penalties or overaward payments which would have been received had the employee not been on leave.’

1. The HSU asserts that the term ‘ordinary hourly rate’ has been used incorrectly as the clause ‘…provides that the rate of pay should include not only all purpose allowances, but all payments an employee would have received had they not been on leave’.[38] The HSU submits that the term ‘ordinary hourly rate’ should be removed and replaced with the term ‘ordinary pay’ or another appropriate term.[39]

1. We agree. The proposed wording in the exposure draft may have unintended consequences. The wording provided in the current award at clause 30.4 will be reinstated. This clause would also be more appropriately placed after clause 15.2, which is consistent with the placement of the clause in the current award.

Item 18—Classification definitions­—operational employees

1. United Voice have proposed the insertion of a definition for ‘operational employees’. This item is discussed above at item 8 (see paragraphs [43] – [51]).

Item 19—Classification definitions—ambulance community officer

1. Ambulance Victoria proposes the inclusion of the classification of ‘Ambulance Community Officer’, and seeks to have the classifications at Schedule A renumbered accordingly.[40] Ambulance Victoria submits that the minimum rate of pay for the Ambulance Community Officer should sit under the minimum rate of pay for Trainee Clinic Transport Officer in clause 14.1 at approximately the level of a Second Year Administrative Officer Band 1.

1. In our December 2014 decision, we considered a proposal by St John Ambulance NT for the inclusion of a number of additional employee classifications in the award. [41] In that decision, we stated:

‘[164]     In a Review the Commission may only make a determination varying modern award minimum wages if it is satisfied that the variation is justified by work value reasons (s.156(3)). Any proposed variation of modern award minimum wages must be accompanied by submissions and evidence establishing the work value reasons justifying the variation.

[165]    Very little detail accompanied the proposal. No classification definitions or rates of pay were proposed. In these circumstances we are not persuaded to vary the award in the manner proposed.’

1. The application made by Ambulance Victoria includes a proposed definition and rate of pay for the new classification, but is not accompanied by submissions and evidence establishing the work value reasons justifying the variation.

1. In the absence of such evidence, we are not prepared to vary the award as proposed. If Ambulance Victoria wish to press this matter, they should make a separate application to vary the award.

3.3      Asphalt Industry Award 2010

1. A summary of submissions regarding outstanding issues for the Exposure Draft of the Asphalt Award was published on 22 March 2018. Ai Group made submissions in relation to the outstanding technical and drafting issues for this award. Items 1, 6, 11, 12 and 17 of the summary have been determined in a previous Full Bench decision or relate to minor typographical or cross-referencing errors which have been corrected. The variations to the Exposure Draft will be made for those items. Item 5 has been referred to the Plain Language Full Bench. Items 2 and 3 relate to the issue of casual conversion and are dealt with at paragraph [17] above.

1. Parties reached agreed positions in relation to items 4, 7-10 and 13-15. We are satisfied that the agreed positions are appropriate and will be adopted.

1. Item 16 is dealt with above at paragraph [12] of this decision and relates to annual leave accrual for shiftworkers and the NES inconsistency.

3.4      Black Coal Mining Industry Award 2010

1. A revised summary of submissions regarding outstanding issues for the Exposure Draft of the Black Coal Mining Industry Award 2010 (Black Coal Award) was published on 22 March 2018. Ai Group, the Construction, Forestry, Mining and Energy Union – Mining and Energy Division (CFMEU (M&E)), Professionals Australia (APESMA) and the Coal Mining Industry Employer Group (CMIEG) made submissions in relation to the review of this award.

1. Items 2, 4, 7, 9, 11-13, 14A, 16, 18, 22-25 and 27-29 were either confirmed as resolved by agreement, relate to minor typographical errors, or were determined by a previous Full Bench decision. The variations to the Exposure Draft will be made for those items. Items 1, 6A and 8 have been referred to separate Full Benches for determination. Items 3, 15, 17 and 21 are no longer being pressed.[42]

1. Items 5, 6, 10, 14, 17A, 19, 20A and 26 remain outstanding.

Item 5—Paid meal break

1. The Commission sought the parties’ views as to whether the meal break in clause 9.2(a) of the Exposure Draft was to be paid at the ordinary hourly rate or at the overtime rate.[43] Clause 9.2(a) of the Exposure Draft mirrors current clause 17.8(a) of the Black Coal Award, as follows:

‘(a)        If an employee is required to work more than one and a half hours past their rostered shift (exclusive of crib time) then the employee will, unless agreed otherwise, before starting this overtime be allowed at least 30 minutes for a meal without deduction of pay.’

1. In a joint submission the CFMEU (M&E)[44] and CMIEG submit that the clause intends that the break would be paid at ordinary time if it occurs during ordinary hours or at the overtime rate if it occurs during overtime hours.[45] Ai Group submit that the break should be paid at ordinary time as the break occurs ‘before starting overtime’.[46]

1. The ordinary meaning of the phrase ‘without deduction of pay’ is that the break will be paid at the rate that applies to an employee immediately prior to when the overtime commenced. We consider that the wording of this clause could be clarified. The clause will be amended as follows:

‘(a)        If an employee is required to work more than one and a half hours past their rostered shift (exclusive of crib time) then the employee will, unless agreed otherwise, before starting this overtime be allowed at least 30 minutes for a paid meal break. without deduction of pay. This meal break is to be paid at the rate applying immediately before the meal break is taken.’

1. The variation proposed is consistent with the joint submissions of the CFMEU (M&E) and CMIEG.

Item 6—Paid meal break

1. Item 6 refers to clause 9.2(c) of the Exposure Draft. A question was put to parties about whether the length of the meal break referred to in the clause should be specified. Clause 9.2(c) of the Exposure Draft is identical to the provision in clause 17.8(c) of the current award, as follows:

‘(c)        After each four hours of overtime worked after a paid meal break the employee will have a further paid meal break and either be supplied with a meal or be paid a meal allowance.’

1. In response to that question CFMEU (M&E) and CMIEG jointly submitted that it would be convenient if the words ‘of 30 minutes duration’ were added after the words ‘paid meal break’.[47]

1. Ai Group oppose the proposed variation put in the joint submission. Ai Group also note that in the October 2015 decision the Full Bench gave parties 21 days to file an application to vary the current award and that no application has been made.

1. We note that the phrase ‘a further paid meal break’ implies that it is the same as the previous meal break, which is 30 minutes. We will vary the Exposure Draft in the manner proposed by the CFMEU (M&E) and CMIEG.

Item 10—Penalty rates

1. Item 10 relates to an apparent cross-referencing error in clause 13.3(a)(i) of the exposure draft. Clause 13.3(a)(i) of the exposure draft deals with  the change of shift for permanent day shift employees and is set out as follows:

‘13.3 Change of shift for permanent day shift employees

(a) For at least three consecutive working days

If an employee who normally works on day shift only is required to work afternoon or night shift on at least three consecutive working days then the employee will be paid:

(i) at overtime rates in accordance with clause 14.3 for the first afternoon or night shift so worked; and

. . .’

1. Ai Group submit that the reference to clause 14.3 in 13.3(a)(i) should be to clause 14.2.[48] CFMEU (M&E) initially supported Ai Group’s submission but later submitted that the reference should be to clauses 14.2 or 14.3.[49]

1. Clause 14.2 of the exposure draft deals with payment for overtime and clause 14.3 sets out overtime rates for six and seven day roster employees.  

1. The corresponding clauses in the current award are clauses 22.2 and 22.3 and are set out as follows:

‘22.2     Shiftwork rates

Rates for shiftwork are payable as follows:

Type of shift	Shift rates
Day shift	Ordinary time
Afternoon and rotating night shifts
(a) Ordinary hours	(a) 115% of the ordinary time rate
(b) Overtime hours 6 or 7 day roster	(b) Overtime penalty rate plus 15% of the ordinary time rate for time worked
(c) All others	(c) Overtime penalty rate
Permanent night shift
(a) Ordinary hours	(a) 125% of the ordinary time rate
(b) Overtime hours 6 or 7 day roster	(b) Overtime penalty rate plus 25% of the ordinary time rate for time worked
(c) All others	(c) Overtime penalty rate’

‘22.3     Change of shift for permanent day shift employees

(a)       For at least three consecutive working days

If an employee who normally works on day shift only is required to work afternoon or night shift on at least three consecutive working days then the employee will be paid at overtime rates for the first afternoon or night shift so worked and after that the employee will be paid in accordance with the provisions of clause 22.2 for any other shifts.

(b)       For fewer than three consecutive working days

If the employee is required to work afternoon or night shiftwork for a period fewer than three consecutive working days, overtime rates will be paid for any afternoon or night shiftwork. An exception to this is where the requirement is caused by the failure of any other employee to come on duty at the proper time.’

1. We have considered the positions of the parties and acknowledge that the current wording of the Exposure Draft does not reflect the equivalent provisions in the current award. Clause 22.3(a) of the current award entitles an employee to ‘overtime rates’ for the first afternoon or night shift if they normally work day shift and they are required to work afternoon or night shift for more than 3 consecutive shifts. Overtime rates that may be applicable are contained in clause 14.2 and 14.3 of the Exposure Draft as submitted by CFMEU (M&E). The overtime provisions contained in clause 14.4 of the Exposure Draft may also apply. In order to reflect the current provision contained in the Black Coal Award we will make the following amendment to clause 13.3(a)(i) of the Exposure Draft:

(i)at overtime rates in accordance with clause 14.3 for the first afternoon or night shift so worked; and

Items 14 and 19—Overtime and public holidays—six or seven day roster employees

1. Item 14 relates to overtime on six and seven day rosters when working hours in excess of or outside the ordinary hours of an afternoon or night shift (rotating or permanent) on a public holiday. Item 19 also relates to the issue of the payment of public holidays. It is convenient to deal with these items together.

1. On 30 March 2018 the CMIEG made a submission in response to the Statement published on 21 March 2018[50] noting that there are two interlinked matters of particular significance that remain outstanding, namely those described at Items 14, 19 and 26 of the summary document. The matters concern public holiday payments. In their submission, CMIEG provide a brief summary of the issues as follows:

‘(a) Clause 14.3(c) and (d) (relating to six day and seven day roster employees) and Schedules C and D – Summary of Hourly Rates of Pay, as well as consequential amendments.

The CFMEU has proposed an amendment to insert new paragraphs (c) and (d) concerning overtime worked on public holidays by six day and seven day roster employees, and also proposes consequential amendments to Schedules C and D. The CMIEG opposes amendments sought by the CFMEU, and the Ai Group also opposes the amendments. The CFMEU has confirmed that it presses its amendments, and each of the CMIEG and Ai Group maintain their opposition to those amendments.

(b) Clause 18.4 relating to an employee required to work on a recognised public holiday, previously clause 18.5 in the Exposure Draft of 26 September 2014.

The CFMEU has made submissions about the interpretation of the clause, and also has sought a corresponding amendment to clause 14.3 (see above). That amendment is opposed by the CMIEG and Ai Group. Ai Group has also sought, and continues to seek, its own amendment to the clause, which is opposed by the CFMEU in relation to payment of shift allowances when ordinary hours are worked on a public holiday. The Ai Group amendment accords with the CMIEG's construction of the clause.[51]

1. The CMIEG seeks to be heard on the outstanding matters concerning public holiday payments.[52] They suggest a brief hearing would permit the interested parties to be heard and also be of benefit in assisting the Commission in determining the matters. The CMIEG propose an interim or alternative step could be a conference convened by a delegated member of the Full Bench.[53]

1. We propose to grant the request of the CMIEG.

1. A conference will be convened before Vice President Hatcher in due course. 

Item 26—Summary of hourly rates of pay

1. Item 26 was raised by the CFMEU (M&E) and relates to the tables in Schedule C and Schedule D of the Exposure draft.[54] The CFMEU (M&E) submits that rates should be added for afternoon and night shiftworkers who work on Saturday or Sunday to the table in clause C.1.2, for production and engineering employees, and to clauses D.1.2 and D.2.2 for staff employees.

1. Ai Group requested that parties be given an opportunity to comment should these rates be included.[55]

1. We will update the Exposure Draft with rates for shiftworkers on Saturday and Sunday. Parties will have an opportunity to comment on the accuracy of the rates prior to the finalisation of the exposure draft.

1. The CFMEU M&E also submit that rates should be added to the schedules for 6 and 7 day roster employees who work on public holidays. Rates for these workers can be included following the determination of Items 14 and 19.

Items 17A and 20A—Cross referencing the dispute resolution procedure

1. CMIEG submit that the reference to the dispute resolution in clause 16.3(b) and 21.6 should include a cross-reference to clause 23, which sets out the dispute resolution procedure.[56] They submit that this is consistent to other references to the dispute resolution procedure throughout the award.

1. We agree. A cross-reference to clause 23—Dispute resolution will be inserted into the Exposure Draft at clause 16.3(b) and 21.6.

3.5      Cement and Lime Award 2010 and Quarrying Award 2010

1. In a Statement published on 13 August 2014,[57] the Cement and Lime Award 2010 and the Quarrying Award 2010 (Cement, Lime and Quarrying Awards) were identified as awards that would be amalgamated. The amalgamated Exposure Draft was first published on 11 September 2014 (and was republished on 9 October 2014).[58]

1. A summary of submissions in relation to the Cement, Lime and Quarrying Awards was published on 22 March 2018. Ai Group, Australian Manufacturing Workers’ Union (AMWU), Australian Business Industrial and the New South Wales Business Chamber (jointly ABI) made submissions in relation to the review of this award. Items 1, 7A, 10, and 16 were either confirmed as being resolved by agreement, determined in a previous Full Bench decision or relate to minor typographical or cross-referencing errors. The variations to the Exposure Draft will be made for those items. Items 8, 9 and 11 were referred to the Plain Language Full Bench. Items 2 to 7 relate to the casual conversion clause.

1. Item 15 is dealt with at paragraph [13] of this decision and relates to an alleged NES inconsistency and annual leave accrual for shiftworkers.

1. Items 12-14, and 17 remain outstanding.

Items 12 - 14—Overtime—ordinary hourly rate

1. Ai Group propose the insertion of the words ‘of the ordinary hourly rate’ following the percentage penalties provided in clauses 14.1(e) and 14.2(d) and 14.2(e) of the Exposure Draft.[59]

1. The relevant clauses of the exposure draft are set out below. The change sought by Ai Group is highlighted in red text.

14. Overtime

14.1 Overtime—cement and lime industry

. . .

(e) All time worked by an employee who is a continuous shiftworker in excess of their ordinary working hours will be paid at the overtime rate of 200% of the ordinary hourly rate.

. . .

14.2 Overtime—quarrying industry

(d) Subject to clauses 9.7 and 9.8, overtime must be paid at the rate of 150% of the ordinary hourly rate for the first two hours and 200% of the ordinary hourly rate thereafter. Provided that, for work done on a Sunday an employee must be paid at the rate of 200% of the ordinary hourly rate  with a minimum payment for four hours’ work.

(e) The rate of 200% of the ordinary hourly rate is to continue until the completion of the overtime worked.

1. We agree with Ai Group. The omission of the words ‘of the ordinary hourly rate’ is inconsistent with our general approach to the exposure drafts.

Item 17—industry allowance

1. ABI propose two amendments to the summary of hourly rates schedule relating to all purpose allowances.[60] The first amendment concerned the reference to the ‘industry allowance’ in clauses A.1.1 and B.1.1. They submit that the allowance name should be amended to ‘industry disability allowance’ to reflect the full title of the allowance in clause 11.2(b).

1. The second amendment proposed relates to clauses A.1.2 and B.1.2. ABI contends that the second sentence of the note does not assist, and seek to amend the clauses to include the following words:

‘In the event that other all purpose allowances (the leading hand allowance (clause 11.2(c)) or first aid allowance (clause 11.2(d)) are applicable, these should be added to the above rates.’[61]

1. The clauses in the Exposure Draft[62] currently read as follows (in both clauses A.1.2 and B.1.2):

‘Where an additional allowance is payable for all purposes in accordance with clauses 11.2(c) or (d), this forms part of the employee’s ordinary hourly rate and must be added to the ordinary hourly rate prior to calculating penalties and overtime.’

1. There was consideration of the references to all purpose allowances in the notes provided in the summary of hourly rates schedules in the decision published on 6 July 2017 (July 2017 decision).[63] The Full Bench decided that:

‘[360]     We accept the proposition that to include every pay rate, particularly for awards where all purpose allowances only apply to some employees, is not practical and would amount to a substantive change in approach. However, to improve the understanding of the rates table we propose that for modern awards that contain an all purpose allowance which applies to only some employees clause X.1.2 will be amended in accordance with the approach suggested in respect of the Business Equipment Award 2010...’

1. The wording used in the Business Equipment Award 2010 Exposure Draft[64] is as follows:

‘Consistent with Clause B.1.1, all purpose allowances need to be added to the rates in the table where they are applicable.’[65]

1. The nature of all purpose allowances in the Cement, Lime and Quarrying Awards Exposure Draft is different to those in the Business Equipment Award in that the hourly rates of pay in the schedule already include the all purpose allowances that apply to all employees and it is only the additional all purpose allowances that apply to some employees that need to be added. The wording currently provided in clauses A.1.2 and B.1.2 reflects the fact that the Exposure Draft includes all purpose allowances that apply to all employees and those that apply to some employees.

1. ABI suggest that the current wording does not assist and that the note should be clarified by using the words that they proposed.[66] The wording provided by ABI is clearer than the wording in the Exposure Draft to the extent that it includes both the relevant clause references and names the all purpose allowances that need to be added, if they are applicable, before calculating overtime and penalties.

1. We prefer the wording in the current Exposure Draft insofar as it sets out that the additional amounts are to be added to the ‘ordinary hourly rate’ prior to calculating penalties and overtime. This wording makes it clear that these rates operate in a compounding manner. As such we will make the following amendment to clause A.1.2 and B.1.2:

Any applicable all purpose allowance (the leading hand allowance (clause 11.2(c)) or first aid allowance (clause 11.2(d)) will form part of the employee’s ordinary hourly rate and must be added prior to calculating penalties and overtime.

Revocation of Quarrying Award—Title and commencement clause

1. Given the amalgamation of the Cement, Lime and Quarrying Awards we also need to revoke at least one of these instruments. We are of the view the amalgamation would best be achieved by varying one of the existing awards and revoking the other instrument. We propose to vary the Cement and Lime Award and revoke the Quarrying Award. The revocation of the Quarrying Award enlivens s.164 of the Act.

1. Section 164 of the Act states:

‘164  Special criteria for revoking modern awards

The FWC must not make a determination revoking a modern award unless the FWC is satisfied that:

(a) the award is obsolete or no longer capable of operating; or

(b) all the employees covered by the award are covered by a different modern award (other than the miscellaneous modern award) that is appropriate for them, or will be so covered when the revocation comes into operation.’

1. We are satisfied that all the employees that are covered by the Quarrying Award will be covered by the Cement, Lime and Quarrying Award when it is made. The Quarrying Award will be revoked at the same time that the variation of the Cement, Lime and Quarrying Award takes effect.

1. We propose to vary clause 1.3 of the amalgamated award to ensure that the clause does not restrict rights, privileges, obligations or liabilities arising from the Quarrying Award prior to its revocation. We propose to insert the following wording in clause 1.3 of the Exposure Draft to achieve that objective:

1.3A variation to this award does not affect any right, privilege, obligation or liability that a person acquired, accrued or incurred under this award, the award as it existed prior to that variation. A variation to this award does not affect any right, privilege, obligation or liability that a person acquired, accrued or incurred under the Quarrying Award 2010 as it existed prior to its revocation.

1. Parties have until 4.00 pm on Monday 16 July 2018 to comment on this proposed wording, and our proposed course of action regarding the amalgamated award. A short Statement will be issued outlining the final process for the amalgamation of these two awards.

1. There are now no outstanding technical and drafting issues relating to these two awards for this Full Bench to determine.

3.6      Concrete Products Award 2010

1. A summary of submissions regarding outstanding issues for the Exposure Draft of the Concrete Products Award was published on 22 March 2018. Ai Group, ABI and the AWU made submissions in relation to the outstanding technical and drafting issues. The following items were confirmed as either resolved by agreement, determined in a previous Full Bench decision or relate to minor typographical or cross-referencing errors which have been corrected: items 1, 2, 3, 10, 11, 14-20, 22, 28-30 and 32. The variations to the Exposure Draft will be made for those items. Items 13, 23, 26 and 27 have been referred to other Full Benches. Items 5, 7 and 8 relate to the casual conversion clause in the award. This is dealt with at paragraph [19] above.

1. Items 4, 6, 9, 12, 21, 24, 25 and 31 remain outstanding.

Item 4—Casual conversion—facilitative provision

1. Ai Group submits that clause 11.6(j) of the current award has not been included in the Exposure Draft, that the omission is a substantive change and that the clause should be reinserted.[67]

1. Clause 11.6(j) of the current award provides as follows:

‘11.6 Casual conversion to full-time or part-time employment

. . .

(j)By agreement between the employer and the majority of the employees in the relevant workplace or a section or sections of it, or with the casual employee concerned, the employer may apply clause 11.6(a) as if the reference to six months is a reference to 12 months, but only in respect of a currently engaged individual employee or group of employees. Any such agreement reached must be kept by the employer as a time and wages record. Any such agreement reached with an individual employee may only be reached within the two months prior to the period of six months referred to in clause 11.6(a).’

1. The above clause was omitted from the Exposure Draft in error. We will insert the clause into the Exposure Draft as clause 6.6(f) (with corrected cross references). Given that the clause is a facilitative provision, we will include clause 6.6(f) in the table of facilitative provisions (located at clause 5.2 of the Exposure Draft).

Item 6—Casual conversion—notice provision

1. This item deals with notice requirements relating to casual employees who wish to convert to full-time or part-time employment. Ai Group submit that the scope of information required to be provided by the employer to the employee is narrower under clause 6.6(b)(i) of the exposure draft than is currently contained in the award.[68]

1. Clause 11.6(b) of the current award provides:

‘11.6    Casual conversion to full-time or part-time employment

. . .

(b) Every employer of such an employee must give the employee notice in writing of the provisions of clause 11.6 within four weeks of the employee having attained such period of six months. The employee retains their right of election under clause 11.6 if the employer fails to comply with clause 11.6(c).’

1. Clause 6.6(b)(i) of the Exposure Draft provides:

‘6.6 Casual conversion

. . .

(b) Notice and election of casual conversion

(i) An employer of an eligible casual employee must give the employee notice in writing of the provisions of clause 6.6(a)(ii) within four weeks of the employee having reached the six month period.’

1. Clause 6.6(a)(ii) provides:

‘(ii)        An eligible casual employee has the right, after six months, to elect to have their contract of employment converted to full-time or part-time employment.’

1. Ai Group assert that this is a substantive change, one that is “particularly problematic because, for instance, an employee would not be advised that an employer has the right to refuse a request to convert on certain grounds’.[69] Ai Group submit that the reference to clause 6.6(b)(ii) should be replaced with a reference to clause 6.6 in its totality.[70]

1. We agree that the cross reference in the Exposure Draft has changed the operation of the clause. Clause 6.6(b)(i) will be amended as follows:

(i)Every employer of an eligible casual employee must give the employee notice in writing of the provisions of clause 6.6 within four weeks of the employee having attained such period of six months.

Item 9—Casual conversion—Re-engagement

1. Ai Group submit that clause 6.6(e) of the Exposure Draft is a new clause which does not correspond with any clause contained in the current award.[71] Ai Group submit that it imposes a “substantive requirement” and submit that it must be deleted.[72]

1. Clause 6.6(e) of the Exposure Draft provides as follows:

‘(e)        An employee must not be engaged and re-engaged to avoid any obligation under this award.’

1. We agree that the text of clause 6.6(e) of the Exposure Draft is not found in the current award. Clause 6.6(e) will be deleted from the Exposure Draft.

Item 11—Breaks—Unpaid meal breaks

1. Clause 9.1(c) of the Exposure Draft is set out as follows:

‘9. Breaks

9.1 Unpaid meal breaks

. . .

(c) An employee required to defer the meal break beyond the sixth hour of the shift will be paid at the rate of time and a half until the meal break is taken or the end of the shift, whichever first occurs.

1. Ai Group submit that clause 9.1(c) of the Exposure Draft should be varied by inserting “150% of the ordinary hourly rate” in place of “time and a half”.[73] Ai Group submit that this change would be consistent with the Commission’s earlier decision that penalties and loadings contained in awards are to be applied to the minimum rate prescribed by an award (to the exclusion of over-award payments).[74]

1. We agree and will vary the reference in clause 9.1(c) of the Exposure Draft by inserting the term “150% of the ordinary hourly rate” and delete the words “time and a half”.[75]

Item 21—Hours—Other than continuous work

1. Clause 13.3(c)-(e) of the Exposure Draft is set out as follows:

‘13. Shiftwork and penalties

13.3 Hours—other than continuous work

. . .

(c) The rostered hours will be worked continuously except for meal breaks at the discretion of the employer.

(d) An employee will not be required to work for more than six hours without a meal break.

(e) The ordinary hours will be worked continuously except for meal breaks at the discretion of the employer. An employee will not be required to work for more than six hours without a meal break. Except at the regular changeover of shifts an employee will not be required to work more than one shift in each 24 hours, provided that:

. . .

1. Ai Group submit that clauses 13.3(c) and 13.3(d) are repeated at the commencement of clause 13.3(e) of the Exposure Draft, that this is unnecessary and that the first two sentences of clause 13.3(e) of the Exposure Draft should be deleted.[76]

1. We agree. The first two sentences of clause 13.3(e) will be deleted.

Items 24 and 25—Afternoon or night shift allowance and Saturday shifts

1. Ai Group submits that the terms “ordinary hourly rate of pay” contained in clauses 13.6(b), 13.6(c) and 13.7 of the Exposure Draft should read “ordinary hourly rate”.[77] Ai Group contend that the change should be made consistent with the terminology used elsewhere in the Exposure Draft and in line with the defined term found at Schedule G.[78]

1. We agree. Consistent with the rest of the Exposure Draft, the words “ordinary hourly rate of pay” will be replaced with the words “ordinary hourly rate”, which is a defined term, found at Schedule G—Definitions.

Item 31—Expense related allowances

1. The AWU submit that the deletion of the words “per meal” from the table in clause C.3 of the exposure draft is not necessary.[79] The AWU submit that the allowance is payable on a per meal basis and the remaining provisions in the table of allowances contain a reference to the frequency of payment.[80]

1. C.3 of the exposure draft is set out as follows:

C.3 Expense related allowances

Allowance	Clause	$
Accommodation allowance	11.3(b)
For the first seven days	11.3(b)(i)	79.74 per day
For any subsequent week or part thereof	11.3(b)(ii)	557.87 per week or part thereof
Boot allowance	11.3(d)	3.20 per week
Clothing allowance	11.3(e)	2.60 per week
Loss of clothing	11.3(f)	Up to 746.90 maximum
Meal allowance	11.3(a)	14.96 per meal

1. The words “per meal” were struck through after the Commission received correspondence from the parties indicating that the parties had agreed to the deletion of the words “per meal” from the table in clause C.3.[81]

1. Ai Group submit that the meal allowance is payable under the current modern award for each instance upon which an employee is required to work overtime.[82] Ai Group argue that the payment of the allowance is associated with the performance of overtime not referable to the consumption of a meal, as suggested by the words “per meal”.[83] Ai Group argue that the retention of the words could suggest ‘… that an employee would be entitled to the allowance twice if they consumed two meals upon completing two or more hours of overtime’.[84]

1. Clause 11.3(a) of the exposure drafts outlines when a meal allowance is payable. Clause 11.3(a)(ii) outlines that “[t]he allowance is payable for the first and subsequent meals”. Given the wording of clause 11.3(a)(ii) and the fact that the clause reference is included in the table, we are not persuaded that the words “per meal” should be removed from the expense related allowances table contained in Schedule C.3. The words will be reinserted into the Exposure Draft.

1. There are no outstanding technical and drafting issues in relation to this award.

2.7      Cotton Ginning Award 2010

1. A summary of submissions regarding outstanding issues for the Exposure Draft of the Cotton Ginning Award 2010 (Cotton Ginning Award) was published on 22 March 2018. Ai Group, ABI and the AWU made submissions in relation to the outstanding technical and drafting issues for this award. Items 1, 12 and 17 were determined in a previous Full Bench decision or relate to minor typographical or cross-referencing errors which have been corrected. The variations to the Exposure Draft will be made for those items. Item 14 has been referred to the Plain Language Full Bench for determination

1. Parties reached an agreed position in relation to items 2, 3, 10, 11, 15 and 16. We are satisfied that the agreed positions are appropriate to be adopted into the Exposure Draft.

1. Items 4, 5, 6, 7, 8, 9, 13 and 18 remain outstanding.

Item 4—Notice and election of casual conversion

1. Clause 10.5(b) of the current award provides:

‘10.5     Casual conversion

. . .

(b)       Every employer of a casual employee who seeks to convert to full-time or part-time employment will give the employee notice in writing of the provisions of this subclause within four weeks of the employee having attained the period of 12 months. However, the employee retains their right of election under this subclause if the employer fails to comply with this notice requirement.’

1. Ai Group submits that ‘this subclause’ means clause 10.5, being the entire casual conversion clause.[85]

1. The equivalent clause in the Exposure Draft requires an employer of an employee seeking to convert under the clause to provide the employee with written notice of ‘the provisions of clause 6.6(a)(ii).’ Ai Group submits that this narrows the scope of information required to be provided to the employee,[86] as clause 6.6(a)(ii) of the exposure simply provides that ‘a eligible casual employee has the right, after 12 months, to elect to have their contract of employment converted to full-time or part-time employment.’[87]

1. Ai Group submits the reference in clause 6.6(b)(i) to clause 6.6(a)(ii) should be amended to be a reference to clause 6.6 in its entirety.[88]

1. This is similar to the issue relating to the Concrete Products Award canvassed at paragraphs [130] – [135] of this decision.

1. We agree that the reference in the Award to ‘this subclause’ is intended to refer to clause 10.5 in its entirety. The reference in clause 6.6(b)(i) of the Exposure Draft will be amended so that it refers to clause 6.6 rather than clause 6.6(a)(ii).

Item 6—Full-time or part-time conversion

1. Ai Group submits that, in clause 6.6(c)(iv) of the Exposure Draft, the second reference to clause 6.6(b)(iii) should be a reference to clause 6.6(d)(i), concerning an employer’s right to refuse conversion of a casual. It is submitted that the current draft represents a drafting error.[89] Clause 6.6(c)(iv) of the Exposure Draft is as follows:

‘(iv)       If a casual employee has elected to have their contract of employment converted to full-time or part-time employment in accordance with clause 6.6(b)(iii), the employer and employee must, subject to clause 6.6(b)(iii), discuss and agree on:

·whether the employee will convert to full-time or part-time employment; and

·if the employee will become a part-time employee, the number of hours and the pattern of hours that will be worked, as set out in clause 6.4—Part-time employment.’

1. Clause 6.6(c)(iv) of the Exposure Draft is intended to reflect part of clause 10.5(f) of the current award:

‘(f)        If a casual employee has elected to have their contract of employment converted to full-time or part-time employment in accordance with clause 10.5(c), the employer and employee must discuss and agree upon:

(i)whether the employee will convert to full-time or part-time employment; and

(ii)if it is agreed that the employee will become a part-time employee, the number of hours and the pattern of hours that will be worked are to be consistent with any other part-time employment provisions of this award. . .’[90]

1. The drafting of this clause in the Cotton Ginning Award differs slightly from the drafting of the equivalent clause in the Manufacturing Award as it does not contain the second cross reference. The casual conversion provision in Cotton Ginning Award appears to have been drawn from the Cotton Ginning & C. Employees (State) Award (Cotton Ginning State Award).[91] The equivalent provision in the Cotton Ginning State Award is at clause 5A(b)(vi) and is as follows:

‘(vi)       If a casual employee has elected to have his or her contract of employment converted to full-time or part-time employment in accordance with paragraph (b)(iii), the employer and employee shall, in accordance with this paragraph, and subject to paragraph (b)(iii), discuss and agree upon. . .’

1. The cross reference in the above clause to paragraph (b)(iii) is the equivalent of clause 10.5(c) of the Cotton Ginning Award and is as follows:

‘(b)(iii)   Any casual employee who has a right to elect under paragraph (b)(i), upon receiving notice under paragraph (b)(ii) or after the expiry of the time for giving such notice, may give four weeks’ notice in writing to the employer that he or she seeks to elect to convert his or her ongoing contract of employment to full-time or part-time employment, and within four weeks of receiving such notice from the employee, the employer shall consent to or refuse the election, but shall not unreasonably so refuse. Where an employer refuses an election to convert, the reasons for doing so shall be fully stated and discussed with the employee concerned, and a genuine attempt shall be made to reach agreement. Any dispute about a refusal of an election to convert an ongoing contract of employment shall be dealt with as far as practicable and with expedition through the disputes settlement procedure.’

1. It appears that the phrase ‘subject to clause 10.5(c)’ has been omitted from clause 10.5(f) of the Cotton Ginning Award in error during the award modernisation process. We will correct this error as follows and amend the Exposure Draft as follows:

(f)If a casual employee has elected to have their contract of employment converted to full-time or part-time employment in accordance with clause 10.5(c), the employer and employee must, subject to clause 10.5(c), discuss and agree upon:

Item 9—Seasonal employees

1. The AWU submits[92] that clause 6.7 of the Exposure Draft does not clearly specify that seasonal employees are entitled to receive the other entitlements prescribed for a full-time and part-time employee. Clause 6.7 of the Exposure Draft reads as follows:

‘6.7       Seasonal employees

A seasonal employee means an employee who is engaged from time to time to supplement the permanent workforce. Upon termination of employment, such employees will be entitled to payment of an amount equal to the value of the pro rata accumulation of benefits of a full-time employee for the period of the seasonal employment.’

1. The equivalent provision of the current award reads as follows:

‘10.6     Seasonal employees

A seasonal employee means an employee who is engaged from time to time to supplement the permanent work force. Upon termination such employees will be entitled to payment of an amount equal to the value of the pro rata accumulation of benefits of a full-time employee for the period of the seasonal employment.’

1. Given that the Exposure Draft contains the provisions for seasonal employees in almost identical terms to that provided in the current award, including the entitlements that a seasonal employee would receive on a pro-rata basis on termination, it is unclear what the AWU are seeking. We do not propose to amend the Exposure Draft. The AWU will have 7 days to clarify the amendment they seek and the reasons for such an amendment.

Items 13 and 18—Special contingency payment

1. ABI seeks the removal of clause 11.2(f) of the Exposure Draft, and part of Schedule B relating to the ‘special contingency payment’, as they say it is a district allowance.[93]

1. Clause 11.2(f) of the Exposure Draft provides as follows:

‘(f)        Special contingency payment

(i)A special contingency payment will be made each week to full-time and seasonal employee as follows:

Full-time employees	Seasonal employees
Location	$ per week	$ per week
Moura and Cecil Plains	46.44	13.93
Emerald and St George	67.42	20.23’

1. The continuing operation of special contingency payments was discussed by the Full Bench in the December 2014 Decision:

‘[201]     The issue of district allowances is currently being considered by the Full Bench considering transitional provisions (AM2014/190). We will refer this issue of whether the award should continue to provide for special contingency payments, and if so, how they should operate, to that Full Bench, for determination.’ [94]

1. This matter will be referred to the Full Bench dealing with transitional issues.

3.8      Gas Industry Award 2010

1. A revised summary of submissions regarding outstanding issues for the Exposure Draft of the Gas Industry Award 2010 (Gas Award) was published on 22 March 2018. Ai Group, Business SA, the AWU and the AMWU made submissions in relation to the outstanding technical and drafting issues for this award. Items 1, 2, 4, 8, 9 and 10 were determined in a previous Full Bench decision or relate to minor typographical or cross-referencing errors which have been corrected. Variations to the Exposure Draft will be made for those items. Items 4A, 5 and 6 have been referred to the Plain Language Full Bench. Item 7 is currently before the Annual Leave Full Bench.

1. Items 3 and 10A remain outstanding.

Item 3—Meal breaks

1. Ai Group submit that, consistent with the July 2015 decision, the Exposure Draft should be amended so that the words ‘of the minimum hourly rate’ appear after each reference to a percentage appearing in clauses 9.1(b), 9.1(c) and 9.1(d).[95] Such an amendment would take the following form:

9.1      Meal breaks

(a)A meal break of at least 30 minutes must be allowed to employees within five hours of the start of their shift.

(b)Employees required to work for more than five hours without a meal break as provided for in clause 9.1(a) must, for all time worked in excess of the five hours before being allowed a meal break, be paid at 200% of the minimum hourly rate.

(c)Employees required to continue work during the meal break must be paid at 150% of the minimum hourly rate for all hours worked from the beginning of the scheduled meal break until the full meal break is given.

(d)Employees required to resume work during the meal break must be paid at 150% of the minimum hourly rate for all hours worked from resuming work until the full meal break is given.

1. Ai Group’s submission is supported by Business SA.[96]

1. The Full Bench’s July 2015 decision determined that terms such as ‘time and a half’ should not be retained, but rather should be replaced with terms such as ‘150% of the minimum hourly rate’. In that decision the Full Bench noted the following:

‘[95]      The AMWU and TCFUA, supported by a number of other unions submitted that replacing terms such as ‘time and a half’ and ‘double time’ with ‘150% of the minimum hourly rate’ or ‘200% of the minimum hourly rate’ (or ‘200% of the ordinary hourly rate’ in awards where there is an all purpose payment) reduces an employee’s entitlements under the award. They argue that where an employee is receiving an overaward payment, it is the higher rate that should be multiplied to calculate the amount payable.

[96]     Modern awards provide a safety net of minimum entitlements. The modern award prescribes the minimum rate an employer must pay an employee in given circumstances. Overaward payments, while permissible, are not mandatory. Further, if an employer chooses to pay an employee more than the minimum amount payable for ordinary hours worked, the employer is not required to use that higher rate when calculating penalties or loadings. We are not persuaded by the submissions advanced by union parties and do not propose to replace the terms 150% and 200% with time and a half or double time, etc.’[97]

1. The AWU submits that in the October 2015 decision a similar issue arose in respect of the Manufacturing Award and the term ‘applicable hourly rate’ was used instead of ‘minimum hourly rate’.[98] In relation to the Gas Award,  the AWU submit:

‘We suggest the term “applicable hourly rate” should instead be inserted consistent with the Full Bench’s Decision on 23 October 2015 regarding the Manufacturing and Associated Industries and Occupations Award 2010.

If this does not occur, there will be an incentive for employers to direct employees to continue or resume work during a meal break on Sundays and public holidays because they will be able to pay 150% of the minimum hourly rate instead of 200% of the minimum hourly rate on Sundays and 250% of the minimum hourly rate on public holidays. These are the applicable rates for ordinary hours as per clause 13.7 and 13.8 of the Exposure Draft.’[99]

1. As noted above, the Full Bench canvassed a similar issue in the October 2015 decision.[100] In that decision, the Full Bench said the following (in relation to the Manufacturing Award):

‘Definition of ordinary hourly rate and ordinary hours

[95] The definition of the ordinary hourly rate included is included in Schedule H of the Exposure Draft. It says:

ordinary hourly rate means the hourly rate for the employee's classification specified in clause 16—Minimum wages, plus any allowances specified as being included in the employee's ordinary hourly rate.

[96] The hourly rate at clause 16 does not include any loadings or penalties.

[97] Various clauses in the award provide for the payment of penalties for the working of ordinary hours. For example clause 29 of the award provides that day workers can, by agreement, work ordinary hours on a weekend. In such circumstances they are entitled to be paid at 150% of the ordinary hourly rate.

29.1 Penalty rates for day workers

(a)    Weekend work

Where agreement is reached in accordance with clause 13.2(b):

(i)The rate to be paid to a day worker for ordinary time worked between midnight on Friday and midnight on Saturday will be 150% of the ordinary hourly rate.

(ii)The rate to be paid to a day worker for ordinary time worked between midnight on Saturday and midnight on Sunday will be 200% of the ordinary hourly rate.

[98] Similarly a shift worker is paid at 115% (or higher) of the ordinary hourly rate for ordinary hours worked on shift (see clause 29.2).

[99] Clause 14.5 provides for payment when working through a meal break:

14.5 Working through meal breaks

(a) Subject to clause 14.1, an employee must work during meal breaks at the ordinary hourly rate whenever instructed to do so for the purpose of making good any breakdown of plant or for routine maintenance of plant which can only be done while the plant is idle.

[emphasis added]

[100] The effect of clause 14.5 in conjunction with the definition of “ordinary hourly rate” means that an employee who receives a loading or penalty for ordinary hours of work (e.g. 150% for a day worker working ordinary hours on a Saturday) will receive a lesser amount when working through a meal break as they are only entitled to the ordinary hourly rate during such a period.

1. In the case of the Textile Award, we will adopt a similar approach. The definition will remain in clause 6.6 and a cross reference to clause 6.6 will be added to the definitions clause.

3.24     Timber Industry Award 2010

1. A revised summary of submissions in relation to the Timber Industry Award 2010 was published on 22 March 2018. Ai Group, ABI, Business SA, the AMWU and the AWU made submissions in relation to the Review of this award. Item 5 was withdrawn. Items 1, 3, 4, 6, 7 and 9 were confirmed as either resolved by agreement, determined in a previous Full Bench decision or relate to minor typographical or cross-referencing errors. Variations to the Exposure Draft will be made for those items. Items 6A, 8 and 11 are referred to the Plain Language Full Bench.

1. Item 2 remains outstanding.

Item 2—casual employees

1. The AWU submits that the wording in clause 7.4(c) should be amended from ‘for each ordinary hour worked to ‘for each hour worked’ because the casual loading for this award is paid for all hours worked.[284] ABI reserved the right of reply to this submission should the AWU press their submission[285]. The relevant provisions of the current award appear at clause 12.2(a) and (b) and read as follows:

‘(a)        A casual employee will be paid per hour 1/38th of the award rate applicable for the work performed plus a loading of 25% of the applicable rate of pay.

(b)A casual employee who works in excess of the ordinary hours fixed for weekly employees on any day will be paid at the appropriate overtime rate provided in clause 30—Overtime, Saturday, Sunday and public holiday payments—day work and shiftwork based on their ordinary rate of pay (including the loading provided for in clause 12.2(a)).’

1. Clause 7.4(c) and (d) of the Exposure Draft read as follows:

‘(c)        Casual loading

For each ordinary hour worked, a casual employee must be paid:

·the ordinary hourly rate; and

·a loading of 25% of the ordinary hourly rate,

for the classification in which they are employed.

(d)A casual employee who works in excess of the ordinary hours fixed for day workers in clause 12.2 will be paid at the appropriate overtime rate provided in clause 24—Overtime based on their ordinary rate of pay (including the loading provided for in clause 7.4(c)).’

1. It is correct that the loading is not confined to work performed during ordinary hours in the current award. It appears that the drafting of the clause 7.4(c) of the Exposure Draft has inadvertently changed the operation of this provision. On that basis our provisional view is that the word ‘ordinary’ be deleted from the phrase ‘for each ordinary hour worked’. Interested parties have until 4.00 pm on Monday 16 July 2018 to comment on our provisional view.

Special transport of injured allowance

1. In reviewing the Exposure Draft, we have identified an error that was made in the redrafting of the special transport of injured allowance, clause 21.22(e) of the current award. The clause reads as follows:

‘(e)        Special transport of injured

In the event of an injury to an employee requiring medical attention that cannot be provided by the employer or on the employer’s premises, the employer will reimburse the employee the cost of transporting such employee to the nearest hospital or doctor at which or by whom the employee is to be treated, if such transport is not provided by the employer.’ [emphasis added]

1. The allowance appears in the Exposure Draft at clause 21.6(e) and reads as follows:

‘(e)        Special transport of injured allowance

In the event of an injury to an employee requiring medical attention that cannot be provided by the employer or on the employer’s premises, the employer will reimburse the employee the cost of transporting such employee to the nearest hospital or doctor at which or by whom the employee is to be treated, except where such transport is not provided by the employer.’ [emphasis added]

1. It appears that the redrafting of the clause in the Exposure Draft has altered the meaning of the provision. This change is a substantive change and is an unintended consequence of the drafting process. The Exposure Draft will be amended to insert the wording provided in the current award, by deleting the words ‘except where’ and replacing them with ‘if’.

3.25     Wool Storage, Sampling and Testing Award 2010

1. A revised summary of submissions regarding outstanding issues for the Exposure Draft of the Wool Storage, Sampling and Testing Award 2010 (Wool Storage Award) was published on 22 March 2018. Ai Group and the AWU made submissions in relation to the outstanding technical and drafting issues for this award. Items 5, 7 and 8 were either confirmed as resolved by agreement or relate to minor typographical errors. Variations to the Exposure Draft will be made for those items. Item 3A has been referred to the plain language re-drafting Full Bench in matter AM2016/15 for determination.

1. Items 1-4 and 6 remain outstanding.

Item 1—Part-time employees

1. The AWU submit that that the wording of the current clause 10.2(b) should be retained.[286] Clause 10.2(b) of the current award is as follows:

‘(b)        For each ordinary hour worked, a part-time employee will be paid no less than 1/38th of the minimum weekly rate of pay for the relevant classification in clause 13—Classifications and minimum wage rates.’

1. The equivalent provision is clause 6.3(b) of the Exposure Draft and is as follows:

‘(b)        For each ordinary hour worked, a part-time employee must be paid the minimum hourly rate.’

1. Ai Group submit that there is no material difference between the wording of the current award and the wording of the Exposure Draft and submit that the wording in the Exposure Draft is clearer should be retained.[287]

1. We agree with Ai Group that the wording of the Exposure Draft is clearer than the current award, however the Exposure Draft as it is currently drafted omits the cross reference to the relevant classification. We will reinsert this cross reference.  The following wording will be inserted into the exposure draft:

(b)For each ordinary hour worked, a part-time employee must be paid the minimum hourly rate for the employee’s classification in clause 10—Minimum wages.

Items 2, 4 and 6—Overtime for part-time employees

1. Ai Group submit that the wording of clause 14.1(a) of the Exposure Draft changes the operation of overtime.[288] Ai Group submit that the Exposure Draft introduces notions of “rostered hours on any shift” and the total ordinary hours in the work cycle” which may amount to a substantive change in the application of the overtime provision.[289] In particular Ai Group submit that provisions of the Exposure Draft may entitle an employee to overtime rates when they perform work outside of rostered hours. Ai Group also submit that the current award does not require an employer to implement a roster system for ordinary hours of work.

1. The AWU submit that the drafting of 14.1(a) of the Exposure Draft limits the clause to full-time and part-time employees which the AWU submit is not consistent with the current award.[290] The AWU proposes deleting the words ‘for a full-time or casual employee’ from clause 14.1(a).

1. The AWU further submit that clause 14.1(b) of the Exposure Draft, which sets out the overtime provisions for part-time employees replicates clause 6.3(d) and proposes deleting clause 14.1(b).[291] Ai Group is not opposed to deleting clause 14.1(b).[292] In the Exposure Draft published 13 June 2017 an alternative approach was suggested to replace the wording of clause 14.1(b) with the following:

‘(b)        For a part-time employee, see clause 6.3(d).’

1. The issues raised by the parties in relation to clause 14.1 appear to have arisen as the Exposure Draft seeks to separately define when overtime applies for each type of employment. Clause 25.1 of the current award defines overtime for employees other than shiftworkers as ‘work done in addition to ordinary hours’. Similarly overtime for continuous shiftworkers in clause 25.3 is defined as ‘work done in addition to ordinary hours’ while providing a separate overtime rate for those workers. The Exposure Draft changes the operation by providing that overtime for full-time and casual employees is ‘any time worked in addition to rostered hours on any shift, or in excess of the total ordinary hours in the work cycle’. This change is a substantive change and is an unintended consequence of the drafting process.

1. We have decided to delete clauses 14.1(a) and (b) of the Exposure Draft, renumber clause 14.2 as 14.1 and insert the following to replace the preamble to the table:

An employee will be paid the following overtime rates for all work done in addition to their ordinary hours:

Item 3—Casual employees—list of provisions that do not apply to casuals

1. The AWU submit that clause 6.4(d) of the Exposure Draft omits the words ‘provided in this award’ that appears in the equivalent clause 10.3(d) in the current award and should be reinserted. Ai Group submit that the clause itself is unnecessary and should be deleted. Ai Group further submit that the clause is inaccurate as it appears to exhaustively list the factors compensated by the casual loading. Ai Group submit that should the provision be retained, they do not oppose the inclusion of the phrase ‘provided in this award.’

1. In the December 2014 decision the Full Bench considered the proposal to insert clauses similar to clause 6.4(d) in exposure drafts for awards that did not contain that type of provision.[293] The Full Bench noted that the inclusion of that provision generated considerable controversy and decided to remove the provision from the exposure drafts. The decision did not extend to removing the clause from awards that currently contain a similar provision. We are not presently persuaded to delete the provision however we will re-insert the phrase ‘provided in this award.’ The clause will be re-drafted as follows:

(d)       The casual loading is paid instead of annual leave, paid personal/carer’s leave, notice of termination, redundancy benefits and the other conditions of full-time or part-time employment provided in this award.

1. Next steps

Additional week’s leave for seven day shiftworkers—alleged NES inconsistences

1. A per paragraphs [6] – [14] of this decision, interested parties who wish to make a written submission on the proposal to remove the relevant clauses from the awards that appear to be inconsistent with s.87(2) of the NES, are to do so by no later than 4.00 pm on Monday 16 July 2018.

Ambulance Award

1. As per paragraphs [50] – [51] of this decision, interested parties have until 4.00 pm on Monday 16 July 2018 to comment on our provisional views relating to clause 9 of the Exposure Draft (which deals with Breaks). 

Black Coal Award Industry Award 2010

1. As per paragraph [97] of this decision, a conference will be convened before Vice President Hatcher to provide the parties an opportunity to be heard on outstanding matters regarding public holiday payments.

Cement, Lime and Quarrying Award

1. As per paragraphs [119] – [123] of this decision, interested parties have until 4.00 pm on Monday 16 July 2018 to comment on the proposed wording of clause 1.3, and our proposed course of action regarding the amalgamated award.

Gas Award

1. As per paragraph [182] of this decision, interested parties have until, 4.00 pm on Monday 16 July 2018 to file a written submission regarding our provisional view in relation to the insertion of the term ‘minimum hourly rate’ into clause 9.1 of the Exposure Draft.

Marine Tourism Award

1. As per paragraphs [198] – [200] of this decision, interested parties have until, 4.00 pm on Monday 16 July 2018 to file a written submission regarding our provisional view in relation to clause 6.4(c) of the Exposure Draft. 

1. As per paragraph [213] of this decision, a conference will be convened before Vice President Hatcher to explore ways of clarifying the provisions identified by the AWU. A listing for this conference will be issued shortly.

Oil Refining Award

1. As per paragraph [290] of this decision, a conference will be convened before Senior Deputy President Hamberger for the purposes of settling the definitions of ‘permanent afternoon shift’ and permanent night shift’ that will be inserted into the award. A listing for this conference will be issued shortly.

Timber Award

1. As per paragraph [427] of this decision, interested parties have until 4.00 pm on Monday 16 July 2018 to comment on the provisional view relating to the deletion of the word ‘ordinary’ from clause 7.4(c) of the Exposure Draft.

1. All written submissions are to be sent via email to [email protected]. 

Next Steps

1. Each exposure draft will be updated and republished. Each Exposure Draft will be made consistent with the July 2015 decision. Parties will be provided with one final opportunity to comment on the technical and drafting aspects of the exposure drafts in Group 1 at the conclusion of the review. This will not be an opportunity to raise further technical and drafting issues, parties will be limited to comments regarding the incorporation of our existing decisions into the exposure drafts only.

1. A Statement regarding the process for finalising the exposure drafts and concluding the award stage of the review will be issued in due course.

PRESIDENT

Attachment A—List of Group 1A and 1B awards

Extract from Attachment A to Full Bench Decision of 17 March 2014 [2014] FWCFB 1788; subgroups as per Attachment A of Decision on 23 October 2015 [2015] FWCFB 7236.
Group 1A & 1B (11 awards)

Award code	Award title	Subgroup
MA000060	Aluminium Industry Award 2010	1B
MA000098	Ambulance and Patient Transport Industry Award 2010	1A
MA000054	Asphalt Industry Award 2010	1B
MA000055	Cement and Lime Award 2010 1	1B
MA000022	Cleaning Services Award 2010	1A
MA000056	Concrete Products Award 2010	1B
MA000024	Cotton Ginning Award 2010	1A
MA000057	Premixed Concrete Award 2010	1B
MA000037	Quarrying Award 2010 1	1B
MA000107	Salt Industry Award 2010	1B
MA000016	Security Services Industry Award 2010	1A

¹ The Full Bench proposes amalgamating these two awards – see [2014] FWCFB 9412 at [172]

Group 1C, 1D & 1E (19 awards)

Award code	Award title	Subgroup
MA000001	Black Coal Mining Industry Award 2010		1D
MA000061	Gas Industry Award 2010		1E
MA000062	Hydrocarbons Industry (Upstream) Award 2010		1E
MA000010	Manufacturing and Associated Industries and Occupations Award 2010		1C
MA000093	Marine Tourism and Charter Vessels Award 2010		1E
MA000086	Maritime Offshore Oil and Gas Award 2010		1E
MA000059	Meat Industry Award 2010		1C
MA000011	Mining Industry Award 2010		1D
MA000072	Oil Refining and Manufacturing Award 2010		1D
MA000069	Pharmaceutical Industry Award 2010		1C
MA000074	Poultry Processing Award 2010		1C
MA000108	Professional Diving Industry (Industrial) Award 2010		1E
MA000109	Professional Diving Industry (Recreational) Award 2010		1E
MA000015	Rail Industry Award 2010		1D
MA000053	Stevedoring Industry Award 2010		1D
MA000017	Textile, Clothing, Footwear and Associated Industries Award 2010		1C
MA000071	Timber Industry Award 2010		1C
MA000089	Vehicle Manufacturing, Repair, Services and Retail Award 2010		1C
MA000044	Wool Storage, Sampling and Testing Award 2010		1C

[1] [2014] FWCFB 9412

[2] [2015] FWCFB 7236

[3] [2017] FWCFB 3177

[4] [2015] FWCFB 4658

[5] [2015] FWCFB 6656

[6] Exposure draft – Manufacturing and Associate Industries and Occupations Award 2016, 17 April 2018

[7] [2017] FWCFB 4447

[8] [2016] FWCFB 4418 at [49]-[50]

[9] Ai Group submission, 23 September 2016 at 14-16; 28-30; 45-47; 55-57; 81-83;  Ai Group submission, 11July 2017 at 22-23; 48-49; 88-89; 102-103;189-190

[10] [2015] FWCFB 3023 at [13]

[11] [2015] FWCFB 3023 at [13]

[12] [2017] FWCFB 6417

[13] Ai Group submission , 11 July 2017 at para 20

[14] Exposure draft – Aluminium Industry Award 2015, 13 June 2017

[15] Ai Group submission, 11 July 2017 at para 20

[16] [2014] FWCFB 9412 at [44]

[17] [2015] FWCFB 4658 at [43] – [44]

[18] Exposure draft – Ambulance and Patient Transport Industry Award 2015, 13 June 2017

[19] HSU submission, 23 September 2016, para 2

[20] HSU submission, 23 September 2016, para 2

[21] HSU submission, 23 September 2016, at para 3

[22] HSU submission, 23 September 2016 at para 3

[23] [2017] FWCFB 344

[24] [2017] FWCFB 344, at [128]

[25] United Voice submission, 30 July 2017, at para 4

[26] United Voice submission, 30 July 2017, at para 4

[27] United Voice submission, 30 July 2017, at para 5

[28] United Voice, submission, 30 July 2017, at para 6

[29] AP817765CRV

[30] HSU submission, 23 September 2016 at para 4

[31] United Voice submission, 30 July 2017 at para 7

[32] United Voice submission, 30 July 2017, para 8-10

[33] United Voice submission, 30 July 2017, para 11

[34] [2017] FWCFB 6417

[35] See Attachment A to [2017] FWCFB 6417

[36] HSU submission, 23 September 2016 at para 5

[37] HSU submissions, 23 September 2016 at para 7 (Note HSU submissions refer to clause 15.5(a) –however this clause has been renumbered in the 13 June 2017 exposure draft as clause 15.7(a))

[38] HSU submission, 23 September 2016 at para 10

[39] HSU submission, 23 September 2016 at para 10

[40] Ambulance Victoria correspondence, 7 October 2016 at p.1

[41] [2014] FWCFB 9412

[42] Ai Group submission, 11 July 2017 at para 235, 247-248, 250

[43] Exposure draft, Black Coal Mining Award 2014, 26 September 2014, at clause 9.2(a)

[44] CFMEU is now known as the CFMMEU

[45] CFMEU (M&E) and CMIEG submission, 20 October 2014 at para 3.4

[46] Ai Group submission, 24 October 2014 at para 10

[47] CFMEU (M&E) and CMIEG submission, 20 October 2014 at para 3.4

[48] Ai Group submission, 20 November 2015 at para 92

[49] CFMEU (M&E) submission, 21 December 2015 para 16; CFMEU submission, 16 June 2016, pp.3 – 4

[50] [2018] FWC 1631

[51] CMIEG submission, 20 March 2018 at para 3

[52] CMIEG submission, 20 March 2018 at para 4

[53] CMIEG submission, 20 March 2018 at para 5

[54] CFMEU submission, 3 December 2015 at paras 10-14

[55] Ai Group submission, 7 December 2015 at para 25

[56] CMIEG submission, 30 June 2017 at p 6

[57] [2014] FWCFB 5537 at [4]

[58] Exposure draft – Cement, Lime and Quarrying Award 2014, 9 October 2014.

[59] Ai Group submission, 23 September 2016 at paras 41-44 and Ai Group submission,11 July 2017 at paras 80-87

[60] ABI submission, 7 July 2017 at paras 29-30

[61] ABI submission, 7 July 2017 at para 30

[62] Exposure draft – Cement, Lime and Quarrying Award 2014, 13 June 2017

[63] [2017] FWCFB 3433

[64] Exposure draft – Business Equipment Award 2015, 17 July 2017

[65] [2017] FWCFB 3433 at [357]; see also Report to the Full Bench, 2 May 2016, at p2 para 6

[66] ABI submission,7 July 2017 at para 30

[67] Ai Group submission, 11 July 2017 at para 126 – 127

[68] Ai Group submission, 11 July 2017 at para 116 – 119

[69] Ai Group submission, 11 July 2017 at para 118

[70] Ai Group submission, 11 July 2017 at para 119

[71] Ai Group submission, 11 July 2017 at para 124

[72] Ai Group submission, 11 July 2017 at paras 124 – 125

[73] Ai Group submission, 23 September 2016 at para 62; Ai Group submission, 11 July 2017 at para 129

[74] Ai Group submission, 23 September 2016 at para 62; Ai Group submission, 11 July 2017 at para 129

[75] [2015] FWCFB 4658,  see [97]

[76] Ai Group submission, 11 July 2017 at para 142

[77] Ai Group submission, 11 July 2017 at paras 143-145

[78] Ai Group submission, 11 July 2017 at paras 143-145

[79] AWU submission, 23 September 2016 at para 8

[80] AWU submission, 23 September 2016 at para 8

[81] See Joint Report filed on behalf of Ai Group ABI, AFEI and the AWU, 25 April 2015 at para 16

[82] Ai Group submission, 6 March 2015, at para 197

[83] Ai Group submission, 6 March 2015, at para 197

[84] Ai Group submission, 6 March 2015, at para 197

[85] Ai Group submission, 11 July 2017 at para 161

[86] Ai Group submission, 11 July 2017 at paras 162-163

[87] Exposure Draft – Cotton Ginning Award 2015, 13 June 2017 at clause 6.6(a)(ii)

[88] Ai Group submission, 11 July 2017 at para 164

[89] Ai Group submission, 11 July 2017, at para 168

[90] Cotton Ginning Award 2010, clause 10.5(f)

[91] AN120160 – Cotton Ginning & C. Employees (State) Award, C2706, at clause 5A.

[92] AWU submission, 23 September 2017 at para 9

[93] ABI submission, 7 July 2017 at para 13

[94] [2014] FWCFB 9412

[95] Ai Group submission, 20 November 2015 at paras 107-109

[96] Business SA, submission, 27 November 2015, at page 4

[97] [2015] FWCFB 4658 at [95]-[96]

[98] AWU submission, 4 December 2015, at para 6

[99] AWU submission, 4 December 2015, at paras 6- 7

[100] [2015] FWCFB 7236 at [103]

[101] Ai Group submission, 11 July 2017, at para 262

[102] [2016] FWCFB 5941; PR584535

[103] Gas Industry Award 2010, clause 15.4

[104] Gas Industry Award 2010, clause 3.1

[105] Exposure draft – Marine Tourism and Charter Vessels Award 2010, 30 October 2015

[106] [2015] FWCFB 7236

[107] [2015] FWCFB 7236 at para 116

[108] Exposure draft – Marine Tourism and Charter Vessels Award 2010, 13 June 2017

[109] AWU submission, 24 November 2015 at para 4

[110] AWU submission, 24 November 2015 at para 5

[111] AWU submission, 24 November 2015 at para 6

[112] AWU submission, 24 November 2015 at para 6

[113] AWU submission, 24 November 2015 at para 7

[114] AWU submission, 24 November 2015 at para 8

[115] AWU submission, 24 November 2015 at para 9

[116] AWU submission, 24 November 2015 at para 10

[117] AWU submission, 24 November 2015 at para 11

[118] AWU submission, 24 November 2015 at para 14; AWU submission, 4 December 2015 at para 6

[119] Business SA submission, 27 November 2015 at para 20

[120] [2015] FWCFB 7236

[121] AMWU submission, 20 November 2015, at para 11

[122] Exposure Draft – Maritime Offshore Oil and Gas Award 2017, clause 7.1(c)

[123] AMWU submission, 20 November 2015, at paras 11-14

[124] Ai Group submission, 7 December 2015, at para 119

[125] Fair Work Act 2009 (Cth), s138

[126] [2015] FWCFB 7236 at [18]

[127] AWU submission, 23 November 2015, at paras 1-3

[128] AWU submission, 23 November 2015, at para 3

[129] AMWU submission, 30 June 2017, at para 20

[130] Ai Group submission, 7 December 2015, at para 118

[131] AMIC submission, 20 November 2015, at paras 29 – 33

[132] PR559287

[133] [2013] FWCFB 5411

[134] Ibid, [268]-[270], [295]

[135] Building and Construction General On-site Award 2010, Joinery and Building Trades Award 2010, Airline Operations—Ground Staff Award 2010, Sugar Industry Award 2010 and Graphic Arts, Printing and Publishing Award 2010

[136] AMIC submission, 9 May 2014 at para 15

[137] Ai Group submission, 20 November 2015 at paras 255 – 257

[138] AMIC submission, 20 June 2014 at pp5-7; AMIC submission, 12 November 2014 at paras 11 – 12

[139] AMIC submission, 9 July 2014, at para 4

[140] AMIC submission, 7 July 2017, at paras 7-8

[141] AWU submission, 20 November 2015 at para 4

[142] Ai Group submission, 7 December 2015 at paras 124-125; Ai Group submission, 11 July 2017 at paras 307 – 308

[143] [2015] FWCFB 7236

[144] [2017] FWCFB 3433 at paras 360-361 and Attachment B

[145] AWU submission, 20 November 2015, at para 5

[146] [2015] FWCFB 6656 at [110]

[147] Ibid

[148] Ai Group submission, 7 December 2015 at paras 126-133

[149] Ai Group submission, 11 July 2017 at para 309

[150] [2015] FWCFB 6656

[151] Ai Group submission, 20 November 2015 at paras 262-265

[152] AWU submission, 4 December 2015, paras 9-14

[153] CFMEU M&E submission, 20 November 2015 at para 2

[154] Ai Group submission, 7 December 2015 at paras 134-135

[155] [2014] FWCFB 9412 at [68]-[69]

[156] AWU submission, 20 November 2015 at para 11

[157] [2017] FWCFB 3433 at [351]-[352]

[158] Ai Group submission, 24 October 2014 at para 135

[159] ABI submission, 7 July 2017 at para 19

[160] Ai Group submission, 11 July 2017, at para 318

[161] [2015] FWCFB 4658 at [54]

[162] [2015] FWCFB 7236

[163] AWU submission, 20 November 2015 at para 6

[164] AMMA submission, 25 November 2015 at p. 1

[165] AWU submission, 4 December 2015 at para 4; see also [2015] FWCFB 7236 at [245]

[166] AMMA submission, 25 November 2015 at p. 2

[167] AMMA submission, 25 November 2015 at p. 2

[168] AMMA submission, 25 November 2015 at p. 3

[169] AMMA submission, 25 November 2015 at page 2

[170] Ai Group submission, 7 December 2015 at paras 146 – 151

[171] Exposure draft – Oil Refining and Manufacturing Award 2014, 29 September 2014 at clause 13.1

[172] Ai Group, submission, 24 October 2014 at para 149

[173] Ai Group submission, 7 December 2015 at para 148

[174] [2015] FWCFB 7236 at [145]

[175] Ai Group submission in reply, 24 November 2014 at para 4

[176] Ai Group submission, 7 December 2015 at paras 150 and 151

[177] Ai Group submission, 7 December 2015 at para 151

[178] AWU submission, 4 December 2015 at para 4

[179] AWU submission, 4 December 2015 at para 5

[180] AMWU submission, 30 June 2017 at para 17

[181] Exposure Draft – Mining Industry Award 2014, 29 September 2014 at clause 13.2

[182] [2015] FWCFB 7236 at [137]

[183] See [2015] FWCFB 7236 at [46] – [50]

[184] Ai Group submission, 20 November 2015 at paras 282 – 283

[185] AWU submission, 4 December 2015 at para 12

[186] [2017] FWCFB 3433 at [361] – [362]

[187]Ai Group submission, 20 November 2015 at paras 30-33, 290

[188] Ai Group submission, 20 November 2015 at paras 290 and AWU submission, 4 December 2015 at para 6

[189] AMWU submission, 30 June 2017 at paras 8-9

[190] [2015] FWCFB 7236 at [154]-[159]

[191] AMWU submission, 30 June 2017 at para 10

[192] AMWU submission, 19 November 2015 at para 6

[193] Exposure Draft – Pharmaceutical Industry Award 2015, 13 June 2017 at clause 6.3

[194] Exposure Draft – Pharmaceutical Industry Award 2015, 13 June 2017 at clause 8.2

[195] ABI submission, 7 December 2015 at para 3.1

[196] ABI submission, 7 July 2017 at para 22

[197] Ai Group submission, 11 July 2017 at para 336

[198] Ai Group submission, 7 December 2015 at para 164

[199] Ai Group submission, 7 December 2015 at para 165

[200] AWU submission, 23 November 2015 at para 4-5

[201] Exposure Draft – Pharmaceutical Industry Award 2017, 13 June 2017 at clause 9.1

[202] AWU submission, 23 November 2015 at para 6

[203] [2015] FWCFB 7236 at [103]

[204] AWU submission, 23 November 2015, at para 7

[205] ABI, submission, 7 December 2015, at para 32

[206] Ai Group submission, 7 December 2015, at para 174

[207] Ai Group submission, 7 December 2015, at para 175

[208] Ai Group submission, 7 December 2015, at para 174

[209] Exposure Draft – Manufacturing and Associated Industries and Occupations Award 2014, 25 September 2014 at clause 14.1(b)

[210] [2017] FWCFB 3177 at [41]-[44]

[211] [2017] FWCFB 3177 at [44]

[212] Ai Group submission, 11 July 2017 at para 341

[213] Ai Group submission, 11 July 2017 at para 347

[214]Ai Group submission, 23 November 2015 at paras 30-33, 300

[215] AWU submission in reply, 4 December 2015 at para 5

[216] [2015] FWCFB 7236 at [154]-[159]

[217] AMWU submission, 19 November 2015, at para 6

[218] Exposure draft – Poultry Processing Award 2015,  13 June 2017 at clause 8.2(b)

[219] AMWU submission, 20 November 2015, at paras 10-14

[220] [2015] FWCFB 7236

[221] AMWU submission, 20 November 2015, at para 10

[222] Ai Group submission, 7 December 2015, at para 182

[223] Ai Group submission, 7 December 2015, at para 81

[224] [2017] FWCFB 3177

[225] [2013] FWCFB 10165

[226] [2017] FWCFB 3177 at [11]-[12]

[227]  Ai Group, ABI, AFEI and AWU submission, 25 April 2015 at para 11

[228] ABI submission, 7 July 2017 at paras 25-26

[229] ABI submission, 7 July 2017 at paras 25-26

[230] [2015] FWCFB 4658 at paras [52]-[54]

[231] [2017] FWCFB 3177 at [114]

[232] [2017] FWCFB 5749

[233] [2017] FWCFB 5749 at [14]

[234] AWU submission, 24 November 2015 at para 7

[235] PR593699, see also [2017] FWCFB 3177 at [102]-[114]

[236] AWU submission, 24 November 2015 at para 7

[237] [2017] FWCFB 3177 at [102]-[114]

[238] PR593699

[239] Exposure draft – Professional Diving (Industrial) Award 2015, 13 June 2017

[240] Exposure draft – Professional Diving Industry (Recreational) Award 2015, 30 October 2015 at clause 6.7(a)

[241] AWU submission, 24 November 2015, at para 4

[242] Exposure draft – Professional Diving Industry (Recreational) Award 2015, 30 October 2015 at clause 6.7(a)

[243] AWU submission, 24 November 2015 at para 5

[244] Ai Group submission, 7 December 2015 para 190-95

[245] [2015] FWCFB 4658 at [42]–[44]

[246] [2015] FWCFB 7236

[247] Ai Group submission, 11 July 2017, at paras 197-198; Ai Group submission, 23 September 2016 at para 88

[248] [2015] FWCFB 4658 at [54]

[249] Ai Group submission, 11 July 2017, at paras 201-220

[250] Ai Group submission, 23 September 2016, at paras, 91, 93, 95, 97, 99, 101, 103, 105, 107, 109

[251] Ai Group submission, 26 September 2014 at para 187

[252] AWU submission, 15 October 2014 at paras 3, 5

[253] [2014] FWCFB 9412

[254] [2015] FWCFB 4658 at [42]–[44]

[255] Qube Submission, 24 November 2015 at para 6

[256] Ai Group submission, 7 December 2015 at para 206

[257] [2017] FWCFB 3433 at [334] – [340].

[258]Qube Submission, 26 June 2017 at p.1

[259] Qube Submission, 26 June 2017 at p.1

[260] Ai Group submission, 20 November 2015 at para 367

[261] Ai Group submission, 20 November 2015 at para 367

[262] AWU submission, 20 November 2015 at para 4

[263] Ai Group submission, 7 December 2015 at para 212-213

[264] TCFUA submission, 7 July 2017 at para 22

[265] AWU submission, 20 November 2017 at para 7

[266] TCFUA submission, 24 November 2015 at p 6; Ai Group submission, 7 December 2015 at para 218

[267] Exposure draft – Textile, Clothing, Footwear and Associated Industries Award 2015, 13 June 2017

[268] TCFUA submission, 7 July 2017 at paras 38-39

[269] TCFUA submission, 24 November 2015 at p.6

[270] ABI submission, 7 December 2015 at para 4.6

[271] Ai Group submission, 7 December 2015 at para 219

[272] TCFUA submission, 24 November 2015 p.1

[273] ABI submission, 7 December 2015 at para 41

[274] Ai Group submission, 7 December 2015 at para 222

[275] TCFUA submission, 7 July 2017 at paras 12-17 and 57

[276] Ai Group submission, 20 November 2015 at paras 386-388

[277] TCFUA submission, 7 December 2015 at p 6

[278] TCFUA submission, 24 November 2015 at p 8 - 14 and TCFUA submission, 7 July 2017 at para 66

[279] ABI submission, 7 December 2015 at para 4.10; Ai Group submission, 7 December 2015 at paras 227-237; Ai Group submission, 11 July 2017 at para 399

[280] TCFUA submission, 24 November 2015 at p16

[281] TCFUA submission, 7 July 2017 at paras 100-104

[282] TCFUA submission, 7 July 2017 at para 106

[283] [2017] FWCFB 3433 at [334] – [340]

[284] AWU submission, 20 November 2015 at paras 8-9

[285] ABI submission, 7 July 2017 at para 37

[286] AWU submission, 20 November 2015 at paras 12-14

[287] Ai Group submission, 7 December 2015 at paras 289-292

[288] Ai Group submission, 20 November 2015 at para 444

[289] Ai Group submission, 20 November 2015 at para 444

[290] AWU submission, 20 November 2015 at paras 17 and 21

[291] AWU submission, 20 November 2015 at paras 16-21

[292] Ai Group submission, 7 December 2015 at paras 297

[293] [2014] FWCFB 9412 at para [69]

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