4 yearly review of modern awards—Award stage—Group 3 - [2017] FWCFB 3433

[2017] FWCFB 3433

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 3

(AM2014/217 and others)

JUSTICE ROSS, PRESIDENT

SENIOR DEPUTY PRESIDENT HAMBERGER
DEPUTY PRESIDENT CLANCY
COMMISSIONER ROE
COMMISSIONER JOHNS

MELBOURNE, 6 JULY 2017

4 yearly review of modern awards – Award stage – exposure drafts – Group 3 awards.

CONTENTS

Page	Paragraph
1. Introduction	5	[1]
2. Review of Group 3 awards	5	[4]
2.1 Banking, Finance and Insurance Award 2010	6	[12]
2.2 Business Equipment Award 2010	7	[17]
2.3 Commercial Sales Award 2010	11	[40]
2.4 Coal Export Terminals Award 2010	11	[43]
2.5 Contract Call Centres Award 2010	12	[45]
2.6 Electrical Power Industry Award 2010	13	[51]
2.7 Higher Education Industry–Academic Staff–Award 2010	13	[53]
2.8 Higher Education Industry–General Staff–Award 2010	14	[59]
2.9 Labour Market Assistance Industry Award 2010	15	[65]
2.10 Local Government Industry Award 2010	17	[78]
2.11 Marine Towage Award 2010	18	[83]
2.12 Market and Social Research Award 2010	18	[90]
2.13 Miscellaneous Award 2010	21	[104]
2.14 Pastoral Award 2010	21	[106]
2.15 Port Authorities Award 2010	58	[289]
2.16 Ports, Harbours and Enclosed Water Vessels Award 2010	60	[302]
2.17 Real Estate Industry 2010	62	[307]
2.18 Seagoing Industry Award 2010	62	[308]
2.19 State Government Agencies Award 2010	62	[311]
2.20 Telecommunications Award 2010	62	[312]
3. Other matters	64	[320]
3.1 Title and commencement	64	[321]
3.2 Definitions section	65	[329]
3.3 Duplication of definitions in coverage clause and definition section	65	[334]
3.4 Coverage	67	[341]
3.5 References to the Fair Work Act	68	[345]
3.6 Casual overtime rates tables	69	[351]
3.7 Hourly rates of pay schedule – minimum hourly rate and percentage of ordinary hourly rate	69	[353]
3.8 Reference to “allowances”, “rates”, or “loadings” as opposed to “shift penalties”	70	[363]
3.9 Occupational health and safety references	73	[380]
4. Next steps	73	[383]
Attachment A—List of Group 3 awards	83
Attachment B—List of modern awards containing all purpose allowances	90
Attachment C—Awards using term “occupational health and safety”	90
Attachment D—Overtime meal allowance provisions	109

ABBREVIATIONS

ABI	Australian Business Industrial and New South Wales Business Chamber (jointly ABI)
ACTU	Australian Council of Trade Unions
AFEI	Australian Federation of Employers and Industries
Ai Group	Australian Industry Group
AIMPE	The Australian Institute of Marine and Power Engineers
AIRC	Australian Industrial Relations Commission
AMOU	The Australian Maritime Officers’ Union
APESMA	The Association of Professional Engineers, Scientists and Managers, Australia
ASU	Australian Municipal, Administrative, Clerical and Services Union
AWU	The Australian Workers’ Union
Business SA	South Australian Employers’ Chamber of Commerce and Industry Inc trading as Business SA
CEPU	Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
CFMEU	Construction, Forestry, Mining and Energy Union
Commission	Fair Work Commission
CPSU	Community and Public Sector Union
December 2014 decision	Full Bench decision re exposure drafts in Group 1A and 1B – General drafting – alleged inconsistencies with NES – 23 December 2014 [2014] FWCFB 9412
FW Act	Fair Work Act 2009 (Cth)
FWO	Fair Work Ombudsman
FSU	Finance Sector Union of Australia
HSU	Health Services Union of Australia
July 2015 decision	Full Bench decision re exposure drafts in Group 1A and 1B – drafting and technical issues – ordinary hourly rate of pay – 13 July 2015 [2015] FWCFB 4658
MIAL	Maritime Industry Australia Ltd
MUA	Maritime Union of Australia
NES	National Employment Standards
NFF	National Farmers’ Federation
QIRC	Queensland Industrial Relations Commission
Review	4 yearly review of modern awards under s.156 of the Fair Work Act 2009
SCAA	Shearing Contractors Association of Australia
SDA	Shop, Distributive and Allied Employees Association
September 2015 decision	Full Bench decision re exposure drafts in Group 1A and 1B – drafting and technical issues – Absorption clause – casual loading – 30 September 2015 [2015] FWCFB 6656
the Market Research Report	Report by Justice Ross; Four yearly Review of Modern Awards: Market and Social Research Award 2010 – 6 July 2016
the Pastoral award	Pastoral Award 2010
The Port Authorities award	Port Authorities Award 2010
The Ports award	Ports, Harbours and Enclosed Water Vessels Award 2010

Introduction

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 the technical and drafting issue issues arising out of the awards in Group 3.[1] The 33 awards allocated to Group 3 are listed at Attachment Ato this decision.

This decision should be read in conjunction with earlier decisions and statements concerning the Review, and in particular the decisions of 23 December 2014[2] (the December 2014 decision), 13 July 2015[3] (the July 2015 decision) and 30 September 2015[4] (the September 2015 decision) in which the Commission dealt with a number of general drafting and technical issues common to multiple exposure drafts.

The December 2014 decision, along with an additional decision issued in May 2015[5] dealt with alleged inconsistencies with the National Employment Standards (NES). Further decisions in relation to award flexibility (AM2014/300)[6], annual leave (AM2014/47)[7] and transitional provisions in relation to accident pay (AM2014/190)[8] also have application to this group of awards.

Review of Group 3 awards

Conferences were held on 30 March 2015 to identify the issues to be raised by interested parties during the review of each of the Group 3 awards. The Commission published summaries of proposed variations.

The Fair Work Ombudsman (FWO) raised a number of issues identified through interactions with employers and employees covered by Group 3 awards. While the FWO did not participate in any proceedings during the Award stage, these issues were drawn to the attention of the parties through notes in the exposure drafts and included in summaries of submissions published.

The Commission published exposure drafts for the Group 3 awards in two tranches between December 2015 and January 2016 together with comparison documents showing the changes made to the structure and language in the award. Interested parties were given an opportunity to make written submissions on the exposure drafts and to reply to the submissions of others. At the request of the parties, further conferences were held to deal with a range of award-specific matters.

Mentions were held on 6 and 7 June 2016 dealing with the technical and drafting issues identified in relation to the Group 3 exposure drafts. The purpose of the mention was to:

· confirm that the published summaries of submissions were accurate and reflected the positions of the parties;

· identify any submissions or variations that were agreed or withdrawn; and

· identify any matters of a substantive nature that had not yet been referred to a specially constituted Full Bench.

Further conferences were conducted by individual members in respect of particular Group 3 awards.

This decision deals with the technical and drafting issues in the Group 3 awards, along with a number of changes sought by parties (other than substantive changes requiring extensive evidence). A subsequent decision will deal with the technical and drafting issues in the remaining awards in Group 3 (Dredging Industry Award 2010, Educational Services (Post-Secondary Education) Award 2010, Educational Services (Schools) General Staff Award 2010; Horticulture Award 2010, Sugar Industry Award 2010, Clerks Private Sector Award 2010, Fitness Industry Award 2010, Gardening and Landscaping Services Award 2010, Legal Services Award 2010, Nursery Award 2010, Silviculture Award 2010, Sporting Organisations Award 2010 and Wine Industry Award 2010).

This decision also deals with a number of ‘other matters’ which are set out at Chapter 3.

We now turn to the awards under Review which are dealt with in this decision.

2.1 Banking, Finance and Insurance Award 2010

On 18 December 2015 the Commission published an initial exposure draft based on the Banking, Finance and Insurance Award 2010 together with a comparison document showing the changes made to the structure and language in the award. Interested parties were provided with an opportunity to file written submissions and submissions in reply on the drafting and technical issues in the exposure draft. Submissions were received from the following parties:

· Australian Industry Group (Ai Group)

· South Australian Employers’ Chamber of Commerce and Industry Inc trading as Business SA (Business SA)

· Australian Federation of Employers and Industries (AFEI)

· Australian Business Industrial and New South Wales Business Chamber (jointly ABI)

· The Australian Workers’ Union (AWU)

A report was published on 22 April 2016 setting out the matters dealt with at a conference held on 21 April 2016.[9] A number of issues raised were resolved at this conference and at a further conference on 29 April 2016. A revised exposure draft was published on 27 April 2016 along with a summary of submissions document. The report of 22 April 2016 called for further submissions in respect of a number of specific matters.

Submissions were received from Business SA, Ai Group, AFEI, ABI and Finance Sector Union of Australia (FSU). Commissioner Roe held a conference on 26 May 2016 during which a number of further issues were resolved. In preparation for that conference a draft report was published on 12 May 2016. A further report was published by Commissioner Roe on 26 May 2016. A revised exposure draft and summary of submissions reflecting the progress made were published on 1 June 2016. In proceedings before Justice Ross on 6 and 7 June 2016 there was a further opportunity for parties to identify any outstanding issues. Commissioner Roe conducted a further conference on 20 July 2016 to consider the issues identified at the conference before Justice Ross.[10] Business SA provided a further submission for that conference on 15 July 2016. A further report was published by Commissioner Roe on 21 July 2016.

The outstanding items in respect of this award relate to the use of the terminology ‘shiftwork penalties’ and ‘shiftwork loadings’ (see Items 18 and 27 in the summary of submissions). Ai Group support the use of the term ‘shift loading’ rather than ‘shift penalty’ in two clauses in this award. Ai Group addressed these matters in their submission of 31 August 2016 (relating to general issues in exposure drafts). This issue is also raised by Ai Group in respect to a number of other Awards. This general issue is dealt with in Section 3.8 of this decision (at paragraph [363]).

We are satisfied that it is appropriate to make the changes agreed to by the parties (as outlined in the report to the Full Bench of 21 July 2016) and that there are no outstanding technical or drafting issues in respect to the latest exposure draft of this award. There are no substantive variation proposals which have not already been referred to a specially constituted Full Bench. A revised exposure draft reflecting the agreed position of the parties’ will be published shortly and parties will be provided with a final opportunity to comment.

2.2 Business Equipment Award 2010

On 18 December 2015 the Commission published an initial exposure draft based on the Business Equipment Award 2010 together with a comparison document showing the changes made to the structure and language in the award. Interested parties were provided with an opportunity to file written submissions and submissions in reply on the drafting and technical issues in the exposure draft. Submissions were received from the following parties:

· Ai Group

· Business SA

· AFEI

· ABI

· the Australian Municipal, Administrative, Clerical and Services Union (ASU)

· AWU

Commissioner Roe published a report on 22 April 2016 that set out the matters dealt with at a conference held on 21 April 2016. A number of issues raised were resolved at this conference and a further conference on 29 April 2016. A revised exposure draft was published on 27 April 2016 along with a summary of submission document. The report of 22 April 2016 called for further submissions in respect to a number of specific matters.

Submissions were received from Business SA, Ai Group, AFEI, ABI and ASU. Commissioner Roe held a further conference on 26 May 2016 during which a number of further issues were resolved. In preparation for that conference a proposal was published on 2 May 2016 and a draft report was published on 12 May 2016. A further report was published by Commissioner Roe on 26 May 2016. A revised exposure draft and summary of submissions reflecting the progress made were published on 1 June 2016. In proceedings before Justice Ross on 6 and 7 June 2016 there was a further opportunity for parties to identify any outstanding issues. Commissioner Roe conducted a further conference on 20 July 2016 to consider the issues identified at the conference before Justice Ross. Business SA provided a further submission for that conference on 15 July 2016. A further report was published by Commissioner Roe on 21 July 2016.

The outstanding items in respect to this award were items 5, 6 and 57 in the summary of submissions report. Item 57 is a matter raised by the Ai Group concerning the Summary of Hourly Rates of pay tables and the heading concerning “ordinary hourly rates”. The Ai Group addressed this matter in their submission of 31 August 2016 relating to general issues in exposure drafts. This general issue is dealt with in Section 3.7 of this decision (at paragraph [353]).

All parties at the relevant conferences agreed that Items 5 and 6 be determined on the basis of the written submission provided to date and we deal with these issues below.

(i) Item 5 (Clause 6.4(c)(ii))

The issue is whether the terms ‘ordinary hourly rate’ or ‘minimum hourly rate’ should be used in Clause 6.4(c)(ii) of the award. It is not contested that the leading hand all-purpose allowance does apply to casual employees. What is in contest is whether the casual loading is applied to the minimum rate plus leading hand allowance. It was agreed that this matter should be determined by the Full Bench on the basis of the written submissions currently before us.

Ai Group accept that the intention of the usage of ‘ordinary hourly rate’ in the exposure draft is to require that the casual loading be applied to a rate that incorporates any all purposes allowance.

In its September 2015 Decision, the Full Bench referred to the July 2015 Decision in the following terms.

‘[85] However in respect of the calculation of the casual loading vis-a-vis all purpose allowances, the Commission went on to say in the July 2015 decision:

“[69] Some employer parties (e.g. Ai Group pp.12-13 re Cotton Ginning Award 2010 and more generally, pp.17-18) have submitted that where the current modern award states that the loading is calculated on "1/38th of the weekly award wage" or "1/38th of the minimum weekly rate", the casual loading should not be calculated based on the ordinary hourly rate that is they do not consider the all purpose allowance should be added to the minimum rate before the 25% is calculated. They submit that the casual loading is 25% of the minimum rate and added to the minimum hourly rate, then the all purpose allowance is added after that.

[70]1n our view it is desirable that there be a consistent rule relating to the calculation of a casual loading which should apply across all awards. Our provisional view is that the position of certain employer parties outlined above at paragraph [69] is the preferred option that should be adopted across all awards. That is, the casual loading will not be calculated based on the ordinary hourly rate. The casual loading will be calculated as 25% of the minimum rate, with any all purpose allowance being added after that.” ’[11]

The conclusion of the September 2015 Decision was the provisional view expressed in the July 2015 Decision would not be followed and, relevantly, said:

‘[102] We accept the submission that the provisional decision is inconsistent with the general approach adopted in the 2008 decision, namely that the casual loading should be applied to the ordinary time rate. Although what constituted the ordinary time rate was not the subject of express consideration in the 2008 decision, we consider it to be well understood that an allowance which is described as all purpose in nature is one that necessarily forms part of the ordinary time rate. That being the case, any departure from that approach proposed by the provisional decision must be justified by cogent reasons.’[12]

The September 2015 Decision continued:

‘[106] The obligation in s.134(1) of the FW Act to ensure that modern awards provide a fair and relevant minimum safety net of terms and conditions carries with it a requirement (in s.134(1)(g)) to take into account “the need to ensure a simple, easy to understand, stable and sustainable modern award system …”. We accept that the adoption of a clear and consistent approach in relation to whether the casual loading should apply to all purpose allowances is desirable in the interests of simplicity and ease of understanding, although the particular circumstances of some awards may require special consideration. The question is whether the approach proposed by the provisional decision is the one which should be preferred in this respect.

….

[109] The concern which underlay the provisional decision was whether it was appropriate for certain allowances currently expressed as all-purpose allowances to be paid at an increased level for casual employees by reason of the application of the casual loading. Ultimately however we have concluded that to deal with this concern in the manner proposed by the provisional decision is too broad-brush an approach and involves conducting the analysis from the wrong starting point. We consider that the preferable approach is to permit reconsideration, on an award-by-award basis during the course of the 4-yearly review, as to whether any existing allowance should retain its “all purpose” designation or should be payable on some different basis.’[13]

The Full Bench then reached the following conclusion:

‘[110] The general approach will remain as expressed in the exposure drafts, namely that the casual loading will be expressed as 25% of the ordinary hourly rate in the case of awards which contain any all purpose allowances, and will be expressed as 25% of the minimum hourly rate in awards which do not contain any such allowances.’[14].

The Ai Group submits that the present award requires that the all purpose payment be added to the minimum hourly rate plus the casual loading. The exposure draft requires the casual loading to be applied to the minimum hourly rate plus the all purpose payment. Ai Group argue that this is a substantive change which may have significant cost implications and suggest that the definition of “all purpose” could be altered to exempt the casual loading in relevant awards.

The definition of “all purpose” and the issue of the use of “ordinary hourly rate” in respect to the casual loading in the case of awards which contain an all purpose allowance has been determined by a Full Bench. When that Full Bench made its decision it was conscious of the fact that current awards deal with this issue differently and decided that despite this a general approach should be adopted.

The expression in the current award – ‘1/38^th of the weekly wage prescribed by this award for the work which the employee performs, plus 20%’ – does not necessarily exclude all purpose allowances because the terms “weekly wage” and ‘minimum weekly wage’ are not identical. It is not necessary to determine this matter.

The award by award consideration referred to by the Full Bench and quoted above relates to questions “as to whether any existing allowance should retain its “all purpose” designation or should be payable on some different basis”. Ai Group is not arguing that the leading hand allowance in this award should lose its all purpose designation.

We are not satisfied that we should depart from the general approach adopted by the September 2015 Full Bench. The exposure draft will not be varied.

(ii) Item 6 (Clause 6.4(c))

The issue is whether in Clause 6.4(c) the expression “for the classification in which they are employed” should be used or the expression “for the work which the employee performs”. It was agreed that this matter should be determined by the Full Bench on the basis of the written submissions currently before us.

Ai Group submit as follows:

‘The current award at clause 13.2 requires the payment of 1/38th of the weekly wage prescribed by the award “for the work which the employee performs”.’[15]

That is, the rate at which the employee is to be paid is contingent upon the work performed. It is not based upon a pre-determination of the employee’s classification.

Clause 6.4(c) of the Exposure Draft alters the effect of the current clause by associating the rate at which a casual employee is to be paid with “the classification in which they are employed”. This is despite the fact that, having regard to the relevant provisions of the award and the classification structure, a casual employee need not be employed at any specific classification.”[16]

We do not consider the expression “for the classification in which they are employed” excludes the possibility that a casual employee may be engaged in work covered by different classifications from time to time. We therefore do not consider that in this context there is any significant difference between the expression “for the classification in which they are employed” and the expression “for the work which the employee performs”. In the exposure drafts the expression “for the classification in which they are employed” has commonly been used in this context.

However, we accept that the expression sought by the Ai Group provides sufficient clarity and we will vary the exposure draft accordingly. The expression “for the classification in which they are employed” will be replaced with the expression “for the work which the employee performs” in Clause 6.4(c).

We are satisfied that it is appropriate to make the changes agreed to by the parties (as outlined in the further report to the Full Bench), and that there are no outstanding technical or drafting issues in respect to the latest exposure draft of this award. There are no substantive variation proposals which have not already been referred to a specially constituted Full Bench. A revised exposure draft reflecting this decision and the agreed position of the parties’ will be published shortly and parties will be provided with a final opportunity to comment.

2.3 Commercial Sales Award 2010

On 18 December 2015 the Commission published an initial exposure draft based on the Commercial Sales Award 2010 together with a comparison document showing the changes made to the structure and language in the award. Interested parties were provided with an opportunity to file written submissions and submissions in reply on the drafting and technical issues in the exposure draft. Submissions were received from the Ai Group, Business SA, AFEI, and ABI. Commissioner Roe published a report on 22 April 2016 that set out the matters dealt with at a conference held on 21 April 2016. A number of issues raised were resolved at this conference and a further conference on 29 April 2016. A revised exposure draft was published on 27 April 2016 along with a summary of submission document. The Report of 22 April 2016 called for further submissions in respect to a number of specific matters. Submissions were received from Business SA, Ai Group, AFEI, ABI and ASU.

A representative of a number of major media organisations[17] attended the conferences. Their concern particularly related to variations proposed in respect to annual leave which have been referred to the annual leave Full Bench. Commissioner Roe held a further conference on 26 May 2016 during which a number of further issues were resolved. In preparation for that conference a proposal was published on 2 May 2016 and a draft report was published on 12 May 2016. A further report was published by Commissioner Roe on 26 May 2016. A revised exposure draft and summary of submissions reflecting the progress made were published on 1 June 2016. In proceedings before Justice Ross on 6 and 7 June 2016 there was a further opportunity for parties to identify any outstanding issues.

We are satisfied that it is appropriate to make the changes agreed to by the parties (as outlined in the report to the Full Bench of 26 May 2016), and that there are no outstanding technical or drafting issues in respect to the latest exposure draft of this award. There are no substantive variation proposals which have not already been referred to a specially constituted Full Bench.

2.4 Coal Export Terminals Award 2010

On 15 January 2016 the Commission published an exposure draft of the Coal Export Terminals Award 2010, together with a comparison document showing the changes to the structure and language in the award. Interested parties were invited to file submissions about drafting or technical issues in the exposure draft. Submissions were received from the Construction, Forestry, Mining and Energy Union (CFMEU) and the Coal Terminals Group (CTG), consisting of Hay Point Services Pty Limited, Port Kembla Coal Terminal Limited and Abbott Point Bulkcoal Pty Ltd. A conference was held in Sydney on 11 May 2016 attended by representatives of both organisations. Senior Deputy President Hamberger published a report to the Full Bench on 26 May 2016 that set out a number of proposed variations to the exposure draft that were agreed to by the parties, or which were sought by the CFMEU and for which the CTG had no submission to make. A number of variations that were not agreed were also set out.

A further conference was held on 5 July 2016 to deal with the outstanding issues. A second report to the full bench was made by Senior Deputy President Hamberger on 10 August 2016. This report noted that the parties had subsequently reached agreement on the outstanding matters and outlined the agreed changes. We are satisfied that it is appropriate to make the changes agreed to by the parties (as outlined in the two reports to the Full Bench), and that there are no outstanding technical or drafting issues in respect of the Coal Export Terminals Award 2010. A revised exposure draft reflecting the agreed position of the parties’ will be published shortly and parties will be provided with a final opportunity to comment.

2.5 Contract Call Centres Award 2010

On 18 December 2015 the Commission published an initial exposure draft based on the Contract Call Centres Award 2010 together with a comparison document showing the changes made to the structure and language in the award. Interested parties were provided with an opportunity to file written submissions and submissions in reply on the drafting and technical issues in the exposure draft. Submissions were received from the Ai Group, AFEI, and ABI. The ASU and the Community and Public Sector Union (CPSU) also made proposals at the conferences. Commissioner Roe published a report on 22 April 2016 that set out the matters dealt with at a conference held on 21 April 2016. A number of issues raised were resolved at this conference and a further conference on 29 April 2016. A revised exposure draft was published on 27 April 2016 along with a summary of submission document.

Submissions in reply were received from Ai Group, AFEI and ABI. Commissioner Roe held a further conference on 26 May 2016 during which a number of further issues were resolved. In preparation for that conference a draft report was published on 12 May 2016. A further report was published by Commissioner Roe on 26 May 2016. A revised exposure draft and summary of submissions reflecting the progress made were published on 1 June 2016. In proceedings before Justice Ross on 6 and 7 June 2016 there was a further opportunity for parties to identify any outstanding issues. Commissioner Roe conducted a further conference on 20 July 2016. A further report was published by Commissioner Roe on 21 July 2016 and an updated exposure draft was published on 16 August 2016.

The only outstanding matter following the publication of the 16 August 2016 draft is the proposal to vary the classification structure in this Award to clarify the classification level of employees providing and developing on the job training. The relevant parties have held discussions and following a conference held on 2 September 2016 Ai Group and the CPSU reached an agreement on the appropriate amendments to the classification structure. The agreed proposal was distributed with a report published by Commissioner Roe on 19 May 2017 and a corrected version was published on 30 May 2017. In that report the following directions were published.

“Any interested party who wishes to make a submission about this proposal must do so by no later than 2 June 2017. It is proposed to deal with this matter on the basis of the submissions received by 2 June 2017. If there is any objection to this proposed course of action it should be received by no later than 2 June 2017.”

No objections or submissions were received. The first change proposed is to insert an additional aspect of the definition for a “Principal Customer Contact Specialist” as follows:

“An employee at this level may provide on the job training instead of customer contact and assist with developing training programs where they are not receiving calls.”

The second change proposed is to insert an additional indicative task for the “Customer Contact Team Leader” definition as follows:

“Develop and lead on the job training”

We agree that it is both necessary and appropriate to vary the classification definitions to include on the job training. A revised exposure draft will be published to incorporate this variation. We are satisfied that it is appropriate to make the changes agreed to by the parties (as outlined in the further report to the Full Bench), and that there are no outstanding technical or drafting issues in respect to this Award. There are no substantive variation proposals which have not already been referred to a specially constituted Full Bench.

2.6 Electrical Power Industry Award 2010

On 15 January 2016 the Commission published an exposure draft of the Electrical Power Industry Award 2010, together with a comparison document showing the changes to the structure and language of the award. On 3 March 2016 a separately constituted Full Bench issued a decision rejecting the insertion of an electrical licencing allowance into the award.[18] A conference was held in Sydney on 11 May 2016, attended by representatives of Ai Group, the ASU, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU), the CFMEU and the AWU. A report to the Full Bench on 25 May 2016 was made by Senior Deputy President Hamberger indicating proposed variations to the exposure draft that had the support of all the parties at the conference. There were no proposed variations still pressed that did not have the support of all the interested parties.

We are satisfied that it is appropriate to make the changes agreed to by the parties (as outlined in the report to the Full Bench), and that there are no outstanding technical or drafting issues in respect of the Electrical Power Industry Award 2010. A revised exposure draft reflecting the agreed position of the parties’ will be published shortly and parties will be provided with a final opportunity to comment.

2.7 Higher Education Industry–Academic Staff–Award 2010

An exposure draft based on the Higher Education Industry–Academic Staff–Award 2010 was published on 18 December 2015. A conference was held before Commissioner Johns on 10 May 2016 to address the outstanding technical drafting issues raised by Australian Higher Education Industrial Association (AHEIA), National Tertiary Education Union (NTEU), and the Group of Eight Universities (Go8). Many outstanding issues were resolved at this conference. A revised exposure draft was published on 26 May 2016 reflecting parties agreed position and a further revised exposure draft published on 3 June 2016. The Commission adopts the agreed position of the parties as reflected in the further revised exposure draft of 3 June 2016.

At the hearing before Justice Ross on 7 June 2016 it was acknowledged that there some are outstanding technical and drafting issues for this award. Parties were provided an opportunity to make submissions on the further revised exposure draft of 3 June 2016 to address any inaccuracies.

The NTEU submitted that the second iteration of clause 9.4(a), rather than the first, of ‘marking as a supervising examiner’ should be deleted. The NTEU reiterated their concern regarding consistency of the public holiday provision with the NES in exposure draft clause 16.2 Public Holiday substitution.[19]

Go8 agreed with NTEU submission regarding exposure draft clause 9.4(a) and submitted that the second issue, regarding public holiday provisions, was not inconsistent. However, it submitted that the issue needs to be addressed that it should be dealt with by this Full Bench.[20]

The NTEU is directed to respond to the Go8 submission that public holiday substitution should be dealt with by this Full Bench by Friday 28 July 2017.

A number of substantive issues in this award were referred to a separately constituted Full Bench in AM2015/6 in October 2015.[21] Any outstanding technical and drafting issues will be finalised after the Full Bench hands down its decision on the remaining substantive matters.[22]

2.8 Higher Education Industry–General Staff–Award 2010

An exposure draft based on the Higher Education Industry–General Staff–Award 2010 was published on 18 December 2015. A conference was held before Commissioner Johns on 10 May 2016 to address the outstanding technical drafting issues raised by Australian Higher Education Industrial Association (AHEIA), National Tertiary Education Union (NTEU), and the Group of Eight Universities (Go8). Most of the outstanding issues were resolved at this conference. A revised exposure draft was published on 27 May 2016 reflecting parties agreed position and a further revised exposure draft published on 3 June 2016.

At hearing before Justice Ross on 7 June 2016 the outstanding technical and drafting issues for this award were discussed. Parties were provided an opportunity to make submissions on the exposure drafts published on 3 June 2016 to address any inaccuracies.

The NTEU wrote to the Commission following the hearing to reiterate its concern that the exposure draft public holiday clause 20 was inconsistent with the NES. [23] Go8 addressed NTEU’s concern regarding public holiday provisions, submitting the clause was not inconsistent NES. However, Go8 submits that if the clause is to be addressed it should be dealt with by the 4 yearly review Group 3 Full Bench.[24]

The NTEU is directed to respond to the Go8 submission that public holiday substitution should be dealt with by this 3 Full Bench by Friday 28 July 2017.

Go8 also made submissions regarding a drafting error with clause 16.5 of the exposure draft, proposing it be amended according to its submission which reflected what was agreed at conference. We agree with the Go8 proposal in respect of clause 16.5.

A number of substantive issues in this award were referred to a separately constituted Full Bench in AM2015/6 in October 2015.[25] Any outstanding technical and drafting issues will be finalised after that Full Bench hands down its decision on the remaining substantive matters.[26]

2.9 Labour Market Assistance Industry Award 2010

The Commission published an initial exposure draft based on the Labour Market Assistance Industry Award 2010 on 18 December 2015 together with a comparison document showing the changes made to the structure and language of the award. Interested parties were provided with an opportunity to file written submissions and submissions in reply on the drafting and technical issues in the exposure draft.[27] Submissions were received from AFEI,[28] ABI,[29] ASU[30] and Jobs Australia[31] and a summary of submissions was published on 23 May 2016. The matter was listed for mention on 6 June 2016 in order to:
(i)        confirm that the published summary of submissions was accurate and reflected the parties’ positions;
(ii)       identify any submissions or variations agreed or withdrawn; and
(iii)       identify whether any matters raised in submissions were of a substantive nature and required consideration by a specially constituted Full Bench.
At the 6 June 2016 mention[32] the interested parties[33] indicated that they would benefit from a conference to discuss the outstanding technical and drafting issues in relation to this award. In addition, the union parties were given seven days to clarify their positions.[34] On 10 June 2016, correspondence was received from the ASU, in which it confirmed that the parties would benefit from conferencing to assist in working through the outstanding issues.[35]

A revised summary of submissions was published on 27 June 2016 and on 30 June 2016 a conference was held to discuss the outstanding technical and drafting issues.[36] A Report to the Full Bench (the Labour Market Report) was issued on 6 July 2016 setting out the matters discussed at the 30 June 2016 conference.

In respect of item 2 of the revised summary of submissions, all parties who appeared[37] at the conference were content with the wording of clause 6.3 of the exposure draft and AFEI (who did not appear) was given seven days to confirm their position. The Commission wrote to AFEI[38] on 21 October 2016 and gave a deadline of 4.00 pm on Friday 28 October 2016 by which to provide a response. No response has been received.

In the Labour Market Report, the Commission directed the parties to have further discussions in respect of items 8, 10, 11, 12 and 14 of the revised summary of submissions and to report back to the Commission within 21 days. On 25 July 2016, the parties' joint report back[39] was filed and is summarised below:

(i) Items 8 and 10 (clause 11.2(b)(ii))

The parties agreed that the clause in the exposure draft reflected the current award provision and prima facie a provision for overtime applied. As to the circumstances in which overtime is to be paid, the parties reported as follows:
‘…provision for an 8 hour payment, facilitation of the maximum of up to 10 ordinary hours for excursion activities and the overtime obligation for work in excess of ordinary hours’.
Further, the parties proposed the following words be inserted at clause 11.2(b)(ii):

‘Except where an agreement has been made in accordance with clause 14.3, where an employee is required to work in excess of 10 ordinary hours per day during excursion activities, the employee is entitled to the overtime rates at clause 14.2.’

(ii) Items 11 and 12 (clause 14.2(c))

The parties agreed that clause 20.2 of the exposure draft should be amended for consistency with clause 14.2(c) and had no further submissions in relation to the wording proposed for that clause.

It was agreed that clause 14.2(c) of the exposure draft reflected the position under the current award. In addition, the parties proposed amendments to clauses 14.2(c)(i) and 14.2(c)(ii) to clarify how the overtime provision operated as follows:
(a)in relation to clause 14.2(c)(i) the parties proposed the following wording be inserted:
‘250% of the minimum hourly rate for work performed during the span of hours worked between 6.00 am and 8.00 pm, and not exceeding 10 hours in one day; and/or’.
(b)the parties proposed the following wording in respect of clause 14.2(c)(ii):
‘350% of the minimum hourly rate for work performed outside the span of hours worked between 6.00 am and 8.00 pm, or in excess of 10 hours in one day.’
(iii) Item 13 – ASU claim to clarify payment of leave loading on termination

The ASU noted that the issue of payment of annual leave entitlements on termination is being dealt with by the Annual Leave Common Issue Full Bench (AM2014/47) but nevertheless advised it is continuing discussions with the Australian Council of Trade Unions (ACTU) regarding the next steps for dealing with the claim.

(iv) Item 14 – Jobs Australia proposal to vary the classification definitions

ASU noted its interest in the Jobs Australia proposal[40] and advised it had no concerns with the proposal, as amended, following the parties’ discussions. During the parties’ discussions, the proposal was amended as follows:
(a)paragraph 8 was withdrawn and the parties agreed the exposure draft wording should be retained; and
(b)paragraph 9 was amended such that it is now proposed that the word ‘instruction’ be replaced with the words ‘employment services’ for consistency throughout the classification schedules.
Items 5, 6 and 7 of the revised summary of submissions were referred to the Part-time and Casual employment Full Bench in AM2014/196 and AM2014/197.

Following receipt of the parties' joint report back there were no outstanding technical and drafting issues. A revised exposure draft reflecting the agreed position of the parties’ will be published shortly and parties will be provided with a final opportunity to comment.

2.10 Local Government Industry Award 2010

On 18 December 2015 the Commission published an initial exposure draft based on the Local Government Industry Award 2010. A conference was held to discuss the exposure draft on 27 April 2016. The parties agreed to a number of matters and a revised exposure draft was republished on 28 April 2016 to reflect these agreed changes.

A further conference was held on 18 May 2016 to discuss the agreed changes made to the revised exposure draft published 28 April 2016 as well as to discuss any outstanding matters. A number of matters were agreed between the parties and a further revised exposure draft was republished on 26 May 2016 to reflect these agreed changes. The full bench adopts the changes as reflected in the further revised exposure draft.

At the mention for the matter on 7 June 2016 parties were invited to consider the Report to the Full Bench published on 6 June 2016 together with the further revised exposure draft and advise the Commission of any outstanding issues.[41]

Local Government NSW, on behalf of various local government associations, (jointly the LGA) wrote to the Commission on 14 June 2016 advising that there were a few outstanding amendments to consider in relation to trading names of default superannuation funds at clause 12.4 of the further revised exposure draft. On 26 May 2017 the Commission wrote to the LGA explaining that s.156(2)(c) of the Act provides that the Full Bench ‘must not review, or make a determination to vary, a default fund term of a modern award’ as part of the 4 yearly review of modern awards. The LGA replied on 31 May 2017 stating they would withdraw this claim under the Review and intend making a similar claim under s.160, Variation of modern awards to remove ambiguity or uncertainty or correct error.

There are no remaining drafting and technical issues to be resolved.

2.11 Marine Towage Award 2010

On 15 January 2016 the Commission published an initial exposure draft based on the Marine Towage Award 2010 (the Marine Towage Award) together with a comparison document showing the changes made to the structure and language in the award. Interested parties were provided with an opportunity to file written submissions and submissions in reply on the drafting and technical issues in the exposure draft.[42] Submissions were filed by the Maritime Union of Australia (MUA)[43] and Maritime Industry Australia Limited (MIAL)[44] in relation to the drafting and technical issues. Submissions concerning substantive issues were filed by The Australian Maritime Officers’ Union (AMOU), MIAL, MUA and Sea Swift. A summary of submissions was published by the Commission on 30 May 2016.

The substantive issues raised (items 1, 2 and 3 of the summary of submissions) were referred to a separately constituted Full Bench in matter AM2016/5 for determination.[45]

The Marine Towage Award was listed for mention on 6 June 2016 to:

(i)confirm that the published summary of submissions was accurate and reflected the parties’ positions;

(ii)identify any submissions or variations agreed or withdrawn; and

(iii)identify whether any matters raised in submissions were of a substantive nature and required consideration by a specially constituted Full Bench.[46]

The Australian Institute of Marine and Power Engineers (AIMPE), MIAL and the MUA appeared at the 6 June 2016 mention.

Following the 6 June 2016 mention, a revised summary of submissions was published on 24 June 2016. A further conference was held in Sydney on 4 August 2016 (the August conference) to discuss the outstanding technical and drafting issues listed in the revised summary of submissions.[47] MIAL and the MUA appeared before the Commission at that conference.

It was confirmed at the August conference that there were no outstanding technical and drafting issues remaining.[48]

Following the determination of the coverage matters by the AM2016/5 Full Bench, the Commission will publish a revised exposure draft. All questions will be removed from the revised exposure draft and the draft will be republished shortly and parties will be provided with a final opportunity to comment.

2.12 Market and Social Research Award 2010

On 18 December 2015 the Commission published an initial exposure draft based on the Market and Social Research Award 2010 (the Market Research award) and a comparison document showing the changes made to the structure and language in the award. Interested parties were provided with an opportunity to file written submissions and submissions in reply on the drafting and technical issues in the exposure draft.[49] Ai Group was the only party to file material in the Commission in relation to the review of the the Market Research award. A summary of submissions was published by the Commission on 23 May 2016 and the award was listed for mention[50] on 6 June 2016 to:

(i)confirm that the published summary of submissions was accurate and reflected the parties’ positions;

(ii)identify any submissions or variations agreed or withdrawn; and

(iii)identify whether any matters raised in submissions were of a substantive nature and required consideration by a specially constituted Full Bench.

Ai Group appeared at the 6 June 2016 mention and proposed that the award be listed for conference to discuss the issues listed in the summary of submissions. Following the mention, a revised summary of submissions was published on 27 June 2016 and on 30 June 2016 a conference was held to discuss the outstanding technical and drafting issues.[51]

At the conference, Ai Group withdrew its claim listed at item 10 of the revised summary of submissions.[52] A Report to the Full Bench (the Market Research Report) was published by the Commission on 6 July 2016 setting out what was discussed at the 30 June 2016 conference.[53] In the Market Research Report, Ai Group was directed to file an amended submission by 4.00pm on Monday 8 July 2016 and on 4 July 2016 Ai Group filed its amended submission.[54] No submissions were filed in reply.

In their submission Ai Group withdrew a number of the issues previously raised. The remaining issues relate to: (i) Clauses 3.4 and 3.5—Coverage and (ii) Clause 6.5(c)(ii)—Casual loading

The first issue re coverage is a matter that affects a number of exposure drafts and is dealt with later in paragraphs [334] to [340].

(i) Clause 6.5(c)(ii)–Casual loading

Clause 6.5(c)(ii) of the exposure draft refers to the casual loading being paid instead of various “entitlements” of full-time or part-time employment. Ai Group submit that this is an oversimplification of the purpose of the casual loading and that the word “attributes”, which appears in the current award is more appropriate. We agree. The exposure draft will be revised to read:

‘The casual loading is paid instead of annual leave, personal/carer’s leave, notice of termination, redundancy benefits and the other ~~entitlements~~ attributes of full-time or part-time employment.’

(ii) Clause 7.2—Classifications

Ai Group submit that the reference to Schedule B in the clause is an error. The clause should refer to Schedule A. We agree. The error will be corrected in the revised exposure draft.

(iii) Clause 8.5—Ordinary hours of work and rostering

Clause 8.5 refers to the “casual hourly rate of pay set out in clause 9”. Ai Group submit that this cross-reference should be to clause 6.5(c). We agree. The error will be corrected in the revised exposure draft.

(iv) Clause 10.4(b)—Expenses reimbursement

Ai Group contend that clause 10.4(b) of the exposure draft significantly broadens the scope of the expenses that must be reimbursed by the employer. Ai Group submit that the word “such” be inserted at the start of the clause to limit its application to the type of expenses referred to in clause 10.4(a). Clause 10.4(b) will be re-drafted to clarify that it only applies to the expenses in clause 10.4(a).

(v) Clause 13.1—Out of hours penalty

In response to a question by the Commission, Ai Group submit that if the out of hours penalties were expressed as a percentage of the employees’ minimum hourly rate instead of as a percentage of the standard rate, this would significantly increase existing payroll costs. Ai Group submit that the fixed model of compensation for such working hours should remain unchanged. The corresponding penalties in the pre-reform instrument[55] were expressed as a flat dollar amount. In the absence of any opposing submission, the amounts in clause 13.1 will continue to be set and adjusted by reference to the standard rate.

(vi) Clause 13.2—Out of hours penalty

In response to a question by the Commission, Ai Group submits that the award does not presently provide for a quantum of time off that may be taken instead of the out of hours penalty, rather this is left to the discretion of the employer. This would amount to a substantive change which is unwarranted. No submissions were received proposing a change the clause 13.2 regarding time off instead of payment for the out of hours penalty. Consistent with the approach taken in AM2014/300 re Award flexibility and reflected in the model term inserted at clause 22.2 of the current award, the current wording will be retained.

(vii) Clause 23.1—Dispute Resolution procedure training leave

In response to a question by the Commission, Ai Group submits the reference to the Workplace Relations Act 1996 (Cth) should be amended to the Fair Work Act 2009 (Cth). This change will be made in the revised exposure draft.

(viii) Schedule A.5—Door to door interviewer

The exposure draft separates ‘Executive (face-to-face) interviewer’ and ‘door-to-door interviewer’ into separate paragraphs giving the impression that they are distinct classifications. Ai Group submit that the format in the current award where they appear as one sub-clause should be retained. The combination of these two classification definitions appears to have been a drafting error in the modern award and is inconsistent with the pre-reform instrument from which the classifications were derived[56]. Given the two definitions can stand alone and do not necessarily apply to the same employee we will retain the separate definitions in clauses A.4 and A.5 of the exposure draft.

A revised exposure draft will be published shortly and parties will be provided with a final opportunity to comment.

2.13 Miscellaneous Award 2010

On 18 December 2015, the Commission published an initial exposure draft based on the Miscellaneous Award 2010 together with a comparison document showing the changes made to the structure and language in the award. Interested parties were provided with an opportunity to file written submissions and submissions in reply on the drafting and technical issues in the Exposure draft.[57] Submissions were filed by ABI,[58] AFEI[59] and Ai Group[60] and on 23 May 2016 the Commission published a summary of submissions. The award was listed for mention on 6 June 2016.[61] The CPSU, Ai Group and ABI appeared at the mention and confirmed that there were no outstanding technical and drafting issues in relation to this award.[62]

A revised exposure draft will be published shortly and parties will be provided with a final opportunity to comment.

2.14 Pastoral Award 2010

A separately constituted Full Bench has dealt with substantive claims in relation to this award in AM2015/23. [63] A large number of technical and drafting issues are before this Full Bench. Before turning to deal with the outstanding issues we set out the procedural steps taken to deal with the various technical/drafting issues.

On 15 January 2016 the Commission published an initial exposure draft[64] based on the Pastoral Award 2010 (the Pastoral award) together with a comparison document[65] showing the changes made to the structure and language in the award. Interested parties were provided with an opportunity to file written submissions and submissions in reply on the drafting and technical issues in the exposure draft.[66] Submissions were received from ABI,[67] AFEI,[68] AWU,[69] Business SA,[70] and National Farmers’ Federation (NFF)[71] and a summary of submissions was published by the Commission on 30 May 2016 (listing some 119 items in contention).

On 6 June 2016 the matter was listed for mention to:

(i)confirm that the published summary of submissions was accurate and reflected the parties’ positions;

(ii)identify any submissions or variations agreed or withdrawn; and

(iii)identify whether any matters raised in submissions were of a substantive nature and required consideration by a specially constituted Full Bench.

ABI, AFEI, Ai Group, AWU, Business SA and the NFF appeared at the 6 June 2016 mention.[72]

After the mention, a revised summary of submissions[73] was published on 4 July 2016 and a conference was held on the same date to deal with the remaining 43 outstanding technical and drafting issues listed in the revised summary of submissions.[74] Following that conference, a Statement[75] attaching a revised exposure draft and further revised summary of submissions was issued on 17 August 2016. That Statement provided an update as to the status of the review of the award and included a list of the outstanding technical and drafting issues. A further conference[76] was held on 24 August 2016 to discuss further directions in relation to the outstanding technical and drafting matters and, following that conference, the Commission issued a Statement and directions.[77] The parties were directed to confirm the accuracy of the revised exposure draft and the revised summary of submissions set out in the attachments to the 17 August 2016 Statement and in doing so, were asked to identify:

(i)which, if any, technical and drafting claims are being pursued;

(ii)which, if any, technical and drafting claims are withdrawn (if not already so identified); and

(iii)whether a party contends that a clause in the revised Exposure Draft has a different legal effect to the corresponding clause in the Pastoral award. If so, how it has been changed.

In addition, draft directions setting out the process for dealing with any outstanding technical and drafting matters identified were set out at Attachment A to the Statement.[78] Parties were asked to file any comments in relation to the draft directions by Wednesday 28 September 2016 and were also asked to confirm which if any of the tasks the Commission agreed to undertake at the conference held on 4 July 2016[79] were still required. The tasks the Commission agreed to undertake were as follows:

(i)prepare a document comparing the current coverage clause with the coverage clauses in the other agricultural awards[80] and identify any differences;[81]

(ii)prepare a document identifying all inconsistencies throughout the current award in relation to the General Employment Conditions;[82]

(iii)prepare a short paper summarising the parties’ respective positions in relation to items 30 and 62 of the revised summary of submissions and provide additional background information on the history of the provision if available;[83] and

(iv)research and publish findings on the relevant award history of clause 14.4(a)(i) of the revised Exposure Draft (that is, clause 23.4 of the current award).[84]

Submissions were filed in response to the Statement and Directions[85] by ABI[86] and the NFF.[87] ABI confirmed it was not pursuing any claims and that it would file submissions in response to the other parties’ outstanding claims if not resolved prior. [88] ABI also pointed out that the Commission had indicated it would undertake research and release its findings in relation to item 26 (relating to the payment of the first aid allowance) and item 65 (relating to payment for public holidays) of the further revised summary of submissions.

Research has been undertaken relating to the payment of the first aid allowance and will be published concurrently with this decision. If any party wishes to pursue the issue they are directed to file a short written submission by no later than 4.00 pm on Friday 28 July 2017. The issue in relation to the payment for public holidays is dealt with at paragraph [155]- [158] of this decision.

The NFF submitted that the revised exposure draft did not reflect its submissions of 16 June 2016 in relation to the facilitative provisions clause and submitted that it had previously proposed that a number of additional terms be identified as facilitative provisions.[89] The NFF pressed for the inclusion of the following terms:[90]

Clause	Provision	Agreement between an employer and:
6.4(d)	Part-time employment	An individual
6.5(e)	Casual employees	An individual
30.3	Spread of ordinary hours	An individual
40.9(d)(iv)	Woolclassers and Shearing shed experts	An individual
42.1(e)	Fares and travelling allowances for expeditionary employees	An individual
43.4(a)(ii)	Special conditions regarding the hours of work of Shearers and Crutchers	An individual

No further submissions have been received in relation to the facilitative provisions clause. We will include the additional terms as proposed by the NFF.

The NFF also submits that several clauses of the exposure draft no longer have the same legal effect as the current award (in particular items 84, 86 and 95 in the revised summary of submissions). We return to these items later.

In addition, the NFF confirmed it was pursuing some 24 items[91] and that the remaining items in the revised summary of submissions that were listed as ‘not agreed’ remained outstanding to the extent that the party making the claim was still pursuing it.[92]

Final directions setting out the process for dealing with the outstanding technical and drafting matters were issued on Wednesday 5 October 2016.[93] The following submissions and submissions in reply were received in accordance with those directions:
(i)Shearing Contractors Association of Australia (SCAA) – submission in reply, 20 October 2016;

(ii) NFF – submission – outstanding claims, 26 October 2016;

(iii) NFF – submission in reply, 23 November 2016; and

(iv) AWU – submission in reply, 23 November 2016.

The issues listed at items 3, 4 and 116 of the revised summary of submissions, and relating to coverage – specifically the definition of ‘wine industry’ – were resolved at the conference of 4 July 2016.[94]

Similarly, the issues in relation to full-time employment and part-time employment listed at items 11 and 13 respectively were resolved at the same conference.[95] The NFF confirmed it is not opposed to the proposed amended wording of clause 24.3 of the exposure draft in relation to the ‘with keep rate’ (item 42) and no other parties have objected.[96] The revised exposure draft published on 17 August 2016 reflects the agreed position in relation to these items.[97] The NFF has withdrawn items 41 and 66 in their entirety.[98] The issue at item 41 is linked to items 51 and 66 and was resolved in conference.[99] Further, the NFF has amended its claim concerning when overtime rates are payable for weekend work (item 49 of the revised summary of submissions) such that it has withdrawn its submissions in relation to clauses 32.2, 33.1 and schedules B.4.1 and B.4.2 to B.4.5 of the exposure draft.[100] We will return to item 49 shortly.

The SCAA filed a submission in reply on 20 October 2016 proposing four new variations to the award that had not been canvassed at an earlier stage of the review.[101] Both the NFF and the AWU argued that it was not appropriate to deal with the new claims at this late stage of the review of the award. The Commission wrote to the SCAA on 12 June 2017 seeking clarification of its position in relation to the additional claims and, in correspondence dated 13 June 2016 the SCAA confirmed that they no longer wished to pursue the additional matters.

We now turn to the remaining issues in dispute.

Item 9: Part 2 – General employment conditions

In the exposure draft the Commission asked the parties to consider whether clarification was required in circumstances where there may be a conflict between the operation of a term in Part 2 – General employment conditions - and a term in one of the particular occupation streams.

On 6 October 2016, the Commission’s research area published a document identifying potential inconsistencies[102] between the general employment conditions and occupation streams in the current award in relation to the following clauses in the current award:

(i) clauses 10.3 and 30.1 – station cooks and part-time rates

(ii) clauses 17 and 29 – provision of a saddle

(iii) clauses 17.2 and 36.10 – overtime meal breaks for piggery attendants

(iv) clauses 17.4 and 46 – sleeping quarters not provided for shearers

(v) clauses 26 and 38.3 – public holidays for piggery attendants

The AWU in its reply submission responds to each potential issue identified.[103] No other party commented upon the potential conflicts identified the Commission’s research document.

(i) clauses 10.3 and 30.1 – station cooks and part-time rates

Clause 10.3(f) of the current award states:

‘10. Types of employment

10.3 Part-time employment

(f)All time worked in excess of the hours mutually arranged will be overtime and paid for at the appropriate overtime rate.’

Clause 30 of the current award states:

‘30 Ordinary hours of work and rostering

30.1 The average ordinary working hours for a Farm and livestock hand will be fixed by agreement between the employer and the employees but will not exceed an average of 38 hours per week over a four week period.

30.2 The ordinary hours of work of Farm and livestock hands (other than Station cooks) will not exceed 152 hours in any consecutive period of four weeks.
30.3 Station cooks

(a)A cook who is required to work for more than five and a half days in any one week will be paid, in addition to the weekly wage of this award, the following overtime rates:

(i)for work on six full days—an amount of 3/22nds of the appropriate weekly rate;

(ii)for work on six full days and one half day—an amount equal to 3/11ths of the appropriate weekly rate; or

(iii)for work on seven full days—an amount equal to 9/22nds of the appropriate weekly rate.

(b)No overtime will be worked nor will an employee perform work on the employee’s day and/or half day off without the permission of or under the instructions of the employer or their authorised representative.’

The following potential conflict was identified in respect of clauses 10.3(f) and 30.1:

‘Clause 10.3(f) provides that ‘all time worked in excess of mutually arranged hours will be overtime’ for a part-time employee. The overtime provision at clause 31 appears to apply to farm and livestock hand employees only. A station cook employee appears to be excluded from the overtime provisions in clause 31. Overtime rates for station cook employees are provided at clause 30.3 and are paid where the employee works for more than five and a half days in one week. It is unclear what a part-time station cook would be paid.’

The AWU makes the following submissions in relation to the potential conflict between clauses 10.3 and 30.1:

‘The AWU considers a part-time station cook would be entitled to overtime as per clause 10.3 (f) and clauses 31.1 and 31.2 of the Award.

Clause 31.1 defines overtime and indicates it applies when in excess of the ordinary hours in clause 30.1 are worked. Station cooks are not excluded from clause 30.1 – they are only excluded from clause 30.2.

Given a station cook is classified as a Farm and livestock hand Level 1 – they are not prevented from accessing the overtime rates in clause 31.2. The definition of “Farm and livestock hand” in clause 3.1 of the Award also does not exclude a station cook.’[104]

Our provisional view is to accept the AWU’s submission. We will seek further submissions in response to our provisional view.

(ii) clauses 17 and 29 – provision of a saddle

Clause 17.2(a)(i) currently states:

‘17. Allowances

17.2 Expense-related allowances
(a) Tool and equipment allowance

(i)Where the employer requires employees to supply their own tools and equipment, the employer must reimburse the employees for the cost of supplying such tools and equipment.

(ii)The provisions of this clause do not apply where the tools and equipment are paid for by the employer.’

Clause 29.1 of the current awards states:

‘29. Special allowances

29.1 Where a Station hand is required by the employer to find their own horse and/or saddle, the employee will be paid a weekly allowance of $7.11 for the horse, and a weekly allowance of $5.68 for the saddle.’

The following potential conflict was identified in respect of clauses 17 and 29 of the current award (relating to the provision of a saddle):

‘If the employer requires the employee to purchase their own saddle for use on a horse, is the employee entitled to reimbursement pursuant to clause 17.2(a)(i) and to the weekly allowance of $5.68 pursuant to clause 29.1? The interaction between clauses 17 and 29 is unclear.’

The AWU submits that where an employee is required to supply their own horse and purchase their own saddle, the employee will be entitled to be reimbursed for the cost of the horse (under clause 17.2) and also paid the weekly allowances prescribed under clause 29.1.[105] The AWU submits:

‘Clause 17.2 is concerned with the cost of supply and clause 29.1 is concerned with the additional task of finding one’s own horse and saddle.’[106]

Our provisional view is that where a station hand is required by the employer to supply their own saddle, and the employee does not own a saddle and must purchase one, then the employee is to be reimbursed for the cost of purchasing the saddle (under clause 17(a)(i)). But in such circumstances the employee is not also entitled to receive the allowance specified in clause 29.1. It seems to us that the saddle allowance is intended to cover wear and tear and depreciation over time. It does not seem reasonable to apply such an allowance in circumstances where the employer has reimbursed the employee for the full cost of the saddle.

We can see no reasonable basis for the AWU’s contention that the allowance specified in clause 29.1 is for the purpose of compensating an employee for ‘the additional task of finding one’s own…saddle’.

We will seek further submissions in response to our provisional view and on the question of whether an amendment is required to clause 29.1 to make clear that the allowance is not payable if a station hand has been reimbursed by the employer for the cost of purchasing a saddle (pursuant to clause 17(a)(i)).

(iii) clauses 17.2 and 36.10 – overtime meal breaks for piggery attendants

Clause 17.2(c)(ii) of the current award states:

‘17.2 Expense-related allowances

(c) Meal allowance

(i) If an employee is required to work overtime after working ordinary hours (except where the period of overtime is fewer than one and a half hours), the employee will be paid $12.93 for the first and any subsequent meals. Alternatively, the employer may supply the employee with a meal.

(ii) An employee required to work overtime for more than two hours after the employee's ordinary ceasing time without having been notified before leaving work on the previous day that the employee will be required to work overtime, will be provided free of cost with a suitable meal, and if the work extends into a second meal break, another meal, provided that in the event of the meal not being supplied the employee is entitled to a payment of $12.93 for each meal not supplied.’

Clause 36.10 of the current award states:

‘36.10 Where overtime is unplanned and not notified the day or days beforehand, a payment will be made of $12.93 after two hours of overtime if work will continue beyond the meal break. Alternatively the employer may supply the employee with a meal.’

The Commission identified the following potential conflict in respect of clauses 17.2(c)(ii) and 36.10:

‘If a pig breeding and raising employee works overtime that he/she was not notified of the previous day, and the overtime extends to a second meal break, is the employee entitled to a second meal in accordance with clause 17.2(ii) or limited to one in accordance with clause 36.10?’

The AWU submits that clause 36.10 is not limited to one allowance or meal. It submits that:

‘When unplanned overtime is worked, an employee receives a payment or a meal after two hours of overtime if work will continue beyond the meal break. This applies after each two hours of overtime if work will continue after the meal break.’[107]

The AWU’s submission appears to be a logical reconciliation of the two clauses and is consistent with the terms of such provisions in other modern awards (see Attachment D). However, it seems to us that the terms of clauses 17.2(c)(ii) and 36.10 are far from clear and in our view should be redrafted in plain language. It is necessary to first attempt to determine what entitlements the clauses are intended to provide.

It appears that clause 17.2(c) provides that an employee is entitled to a meal allowance in the following circumstances:

· the employee is required to work overtime after their ordinary ‘ceasing time’ on a particular day;

· the employee works ‘more than two hours’ overtime

· the employee is not ‘provided free of cost with a suitable meal’; and

· the employee was not notified of the requirement to work overtime ‘before leaving work the previous day’.

In addition, if the overtime work ‘extends into a second meal break’ then a further meal allowance would be payable (provided that the circumstances set out above have been met).

But clause 17.2(c) is unclear in a number of respects. In particular, the meal allowance is payable where an employee works ‘more than two hours’ overtime, which simply begs the question, how much more? Nor is it clear when an employee is entitled to a second meal allowance. The clause appears to provide for the payment of a further allowance in circumstances where the overtime ‘extends into a second meal break’, but it does not specify when overtime can be said to extend into a ‘second meal break’. Is it after a further two hours? Or a longer period?

Clause 36.10 also lacks clarity. It appears to provide for the payment of a meal allowance in circumstances where an employee is not notified of the request to work overtime (‘the day or days beforehand’) and the employer does not provide the employee with a meal. But the amount of overtime required to be worked to qualify for payment of the meal allowance is unclear. The clause states that the allowance is payable ‘after two hours of overtime if work will continue beyond the meal break’. What this means is anyone’s guess. The award is silent on when ‘the meal break’ would be required and hence one cannot determine whether the overtime ‘will continue beyond the meal break’.

It seems to us that the meaning of the existing provisions needs to be clarified before we can attempt to reconcile any conflict between the provisions.

A further conference will be convened in an effort to clarify the intended operation of clauses 17.2(c)(ii) and 36.10. It seems to us that these clauses need to be redrafted to clearly specify the circumstances in which an employee is entitled to a meal allowance (i.e. after a specified number of hours of overtime work, such as two hours overtime) and any further meal allowance (such as working a further two hours overtime). To assist the parties we have attached (at Attachment D) a table which summarises the overtime meal allowance provisions in modern awards.

(iv) clauses 17.4 and 46 – sleeping quarters not provided for shearers

Clause 17.4(c)(iii) of the current award states:

‘17.4 All-purpose allowances

(c) Travelling allowance

(iii) Where an employee is compelled by their duties to spend the night away from home or the property at which the employee is employed (whichever is the employee’s normal place of sleeping during employment), the employer will reimburse the employee for the demonstrable cost of suitable accommodation.’

Clause 46.1(b) of the current award states:

‘46. Special allowances (other than Woolclassers Special allowances (other than Woolclassers and Shearing shed experts)

46.1 Allowance where sleeping quarters are not provided

Where the employee does not reside during a shearing (or crutching) at the employee’s home or usual place of residence and the employee is forced to obtain and pay for sleeping quarters away from the employer’s premises because the employer is unable to provide sleeping quarters at the premises for the employee, the employer will:

(a) arrange for sleeping quarters for the employee to be supplied elsewhere at the employer’s expense; or

(b) pay to the employee an allowance of 259.4% of the standard rate per night for each night during the employee’s employment that the employee is so forced to obtain and pay for sleeping quarters; and

(c) where the distance is one kilometre or more walking distance between the employee’s sleeping quarters and the shed, provide or pay for the transport of the employee between the sleeping quarters and the shed.’

The following potential conflict was identified in respect of clauses 17.4 and 46.1(b):

Where a shearing operations employee (other than woolclasser or shearing shed expert) is required to spend the night away from home is the allowance under clause 46.1(b) payable instead of the reimbursement payable under clause 17.4(c)(iii)?

The AWU submits an employee is not ordinarily entitled to the allowance in clause 46.1(b) and the allowance in 17.4(c)(iii), however submits there may be an exceptions where an employee is:

‘directed to travel again during the shearing or crutching meaning they cannot stay in the sleeping quarters they have obtained and paid for.’[108]

We agree with the AWU that an employee is not entitled to the benefit of both clauses, that is, employee’s cannot claim reimbursement for ‘the demonstrable cost of suitable accommodation’ (under clause 17(c)(ii)) and the allowance specified under clause 46.1. As to the exception referred to by the AWU it seems to us that in such circumstances the employee may be entitled to the allowance specified in clause 46.1(c) as they have been ‘forced to obtain and pay for sleeping quarters’ and hence qualify for the payment of the allowance.

It is unclear whether the AWU is seeking a specific amendment to the award to deal with the exception to which it refers. We will provide the AWU with an opportunity to clarify its intentions in this regard.

(v) clauses 26 and 38.3 – public holidays for piggery attendants

Clause 26.2 of the current award states:

‘26.2 Substitution of certain public holidays by agreement at the enterprise

(a) By agreement between the employer and the majority of employees in the enterprise or part of the enterprise concerned, an alternative day may be taken as the public holiday instead of any of the prescribed days.

(b) An employer and an individual employee may agree to the employee taking another day as the public holiday instead of the day which is being observed as the public holiday in the enterprise or part of the enterprise concerned.’

Clause 38.3 of the current award states:

‘38. Payment for public holidays

38.3 By agreement between an employer and the employees, time off instead of payment for public holidays may be accrued for public holiday work. That is, the employee will receive ordinary time payment for the hours worked on the said holiday and accrue time to be taken at a mutually agreed time.’

The following potential conflict was identified in respect of clauses 26.2 and 38.3:

Clause 38.3 appears as though for an employee to accrue time off instead of payment for working on a public holiday an agreement between the majority of employees is first required (‘agreement between an employer and the employees’). The same clause appears to allow the timing of taking TOIL to be determined by the employer and individual employee (‘a mutually agreed time’). Does clause 38 wholly supersede clause 26 insofar as it applies to piggery attendants?

The AWU submits there is no conflict in respect of clauses 26 and 38.3 for the following reasons:

‘Clause 26 determines when a public holiday is observed.

Clause 38 is concerned with payment for public holidays for piggery attendants.

Clause 38.3 allows a TOIL system to be applied for work on public holidays by agreement. If the TOIL system is agreed, the individual employee can then determine whether to utilise it and when to take the time off.’[109]

Our provisional view is to accept the AWU’s submission, the clauses are directed at different subject matters. We will seek further submissions in response to our provisional view.

We now turn to the remaining outstanding issues requiring determination. The item numbers listed below correspond with the item numbers in the revised summary of submissions document published on 17 August 2016.

Item 10: clause 6.1 – Types of employment

The NFF submits that the proposed new term at clause 6.1 of the exposure draft (types of employment) ‘duplicates existing terms and may have unintended consequences’.[110] Clause 6.1 of the exposure draft is in the following terms:
‘6.1 Employees under this award will be employed in one of the following categories:

[1] See also [2015] FWC 7253; [2015] FWC 618; [2014] FWC 8985; [2014] FWC 8575

[2] [2014] FWCFB 9412

[3] [2015] FWCFB 4658

[4] [2015] FWCFB 6656

[5] [2015] FWCFB 3023

[6] [2015] FWCFB 4466; [2015] FWCFB 6847; [2016] FWCFB 2602; [2016] FWCFB 4258; [2016] FWCFB 4579; and [2016] FWCFB 6178

[7] [2015] FWCFB 3406; [2015] FWCFB 5771; [2016] FWCFB 3177; [2016] FWCFB 3953; and [2016] FWCFB 6836

[8] [2015] FWCFB 2575 and [2015] FWCFB 3523

[9] Full Bench report, 22 April 2016

[10] Transcript, 20 July 2016

[11] [2015] FWCFB 6656 at [85]

[12] [2015] FWCFB 6656 at [102]

[13] [2015] FWCFB 6656 at [106] and [109]

[14] [2015] FWCFB 6656 at [110]

[15] Ai Group, submission – exposure drafts, 14 April 2016 at para 128

[16] Ai Group, submission – exposure drafts, 14 April 2016 at para 129.

[17] News Corp, Bauer Media Limited, Pacific Magazines Limited, Seven Network Operations Limited and its related entities, Network Ten Pty Ltd and its related entities and the Nine Network and its related entities

[18] [2016] FWCFB 1294

[19] NTEU Correspondence , 8 June 2016

[20] Go8 Correspondence, 10 June 2016

[21] [2015] FWC 7253

[22] Transcript, 7 June 2016 at PN148

[23] NTEU Correspondence, 8 June 2016

[24] Go8 Correspondence, 10 June 2016

[25] [2015] FWC 7253

[26] Transcript, 7 June 2016 at PN148

[27] See Statement [2016] FWC 1838 attaching Amended Directions

[28] AFEI, submission - exposure drafts, 15 April 2016; submission in reply - exposure drafts , 6 May 2016

[29] ABI, submission - exposure drafts, 15 April 2016; submission in reply - exposure drafts, 6 May 2016

[30] ASU submission, 2 March 2015

[31] Jobs Australia, submission, 2 March 2015; submission – exposure draft, 14 April 2016

[32] Transcript, 6 June 2016

[33] Jobs Australia; AFEI; ABI; ASU; and CPSU appeared before the Commission

[34] Transcript, 30 June 2016 at PN1602–1608

[35] ASU correspondence, 10 June 2016

[36] Transcript, 30 June 2016

[37] ASU, AFEI; ABI and Jobs Australia

[38] FWC correspondence to AFEI, 21 October 2016

[39] ASU Correspondence, 25 July 2016

[40] Jobs Australia submission – classifications, 29 June 2016

[41] Transcript, 7 June 2016 at PN40

[42] See Statement [2016] FWC 1838 attaching Amended Directions

[43] MUA submission – exposure draft, 14 April 2016

[44] MIAL submission – exposure draft, 14 April 2016

[45] See Statement [2016] FWC 1838 and Directions, 26 April 2016

[46] Transcript, 6 June 2016

[47] Transcript, 4 August 2016

[48] Transcript, 4 August 2016, also see Statement [2016] FWC 7768

[49] See Statement [2016] FWC 1838 attaching Amended Directions

[50] Transcript, 6 June 2016

[51] Transcript, 30 June 2016

[52] Transcript, 30 June 2016 at PN117-182

[53] Report to the Full Bench, 6 July 2016

[54] Ai Group amended submission, 4 July 2016

[55] See Market Research Industry - Consolidated Award 2003 [AP827717] at clause 25

[56] See Market Research Industry - Consolidated Award 2003 [AP827717] at clause 18

[57] See Statement [2016] FWC 1838 attaching Amended Directions

[58] ABI submission, 15 April 2016

[59] AFEI submission, 15 April 2016

[60] Ai Group submission, 14 April 2016; and reply submission, 8 May 2016

[61] Transcript, 6 June 2016

[62] Transcript, 6 June 2016 at PN 1660–1670

[63] Refer to decisions [2016] FWCFB 4393, 8 July 2016 and [2015] FWCFB 8810, 24 December 2015; and Statement [2016] FWCFB 7570

[64] Exposure Draft, 15 January 2016

[65] Comparison Document, 15 January 2016

[66] [2016] FWC 1838, at Attachment B

[67] ABI, submission - exposure drafts, 15 April 2016; and ABI, submission in reply - exposure drafts, 6 May 2016

[68] AFEI, submission - exposure drafts, 15 April 2016

[69] AWU, submission - exposure draft, 17 April 2016; and reply submission, 5 May 2016

[70] Business SA submission - exposure drafts, 15 April 2016; and Business SA submission in reply - exposure drafts, 6 May 2016; and Business SA, correspondence – conference matters, 8 July 2016

[71] NFF, submission - exposure draft, 14 April 2016; NFF, submission in reply - exposure draft, 5 May 2016; NFF correspondence - exposure draft, 30 May 2016; supplementary submission - exposure draft, 16 June 2016; and NFF, submission, 8 July 2016

[72] Transcript, 6 June 2016

[73] Summary of Submissions, 4 July 2016

[74] Transcript, 4 July 2016

[75] [2016] FWC 5837

[76] Transcript, 24 August 2016

[77] [2016] FWC 6060

[78] [2016] FWC 6060

[79] Transcript, 4 July 2016

[80] The modern awards in this group (as identified by the parties) include: Aquaculture Award 2010 [MA000114]; Horticulture Award 2010 [MA000028]; Pastoral Industry Award 2010 [MA000035]; Seafood Processing Award 2010 [MA000068]; Silviculture Award 2010 [MA000040]; Sugar Award 2010 [MA000087]; and Wine Industry Award 2010 [MA000090]

[81] Comparison document, ‘wine industry’ definition, 7 October 2016

[82] Potential inconsistencies between the General Employment Conditions and streams, 7 October 2016

[83] Summary of parties' positions - items 30 and 62 of revised summary of submissions, 7 October 2016

[84] Comparison document - annual leave loading provision, 7 October 2016

[85] [2016] FWC 6060

[86] ABI, submission – revised exposure draft and summary of submissions, 27 September 2016

[87] NFF, submission – revised exposure draft and summary of submissions, 28 September 2016

[88] ABI, submission – revised exposure draft and summary of submissions, 27 September 2016

[89] NFF, submission – revised exposure draft and summary of submissions, 28 September 2016 at para 5

[90] NFF, submission – revised exposure draft and summary of submissions, 28 September 2016 at para 5 and Attachment A; and NFF, supplementary submission - exposure draft, 16 June 2016, at Attachment A

[91] NFF, submission – revised exposure draft and summary of submissions, 28 September 2016 see table at para 6

[92] NFF, submission – revised exposure draft and summary of submissions, 28 September 2016 at para 7

[93] Directions, 5 October 2016

[94] See Transcript, 4 July 2016 at paras 127–163; NFF, submission – revised exposure draft and summary of submissions, 28 September 2016, line one of table at para 9; and NFF, submission - outstanding claims, 26 October 2016, at paras 75–76

[95] See Transcript, 4 July 2016, at PN184–237

[96] NFF, submission - outstanding claims, 26 October 2016, at para 36

[97] NFF, submission - outstanding claims, 26 October 2016, at para 30

[98] NFF, submission - outstanding claims, 26 October 2016, at paras 35 and 53

[99] See Transcript, 4 July 2016, at PN 184-237

[100] NFF, submission - exposure draft, 14 April 2016, at para 68

[101] SCAA, submission in reply, 20 October 2016

[102] Potential inconsistencies between the General Employment Conditions and streams, 6 October 2016

[103] AWU, submission in reply - exposure draft, 23 November 2016, at paras 66–79

[104] AWU, submission in reply - exposure draft, 23 November 2016, at paras 66–68

[105] AWU, submission in reply - exposure draft, 23 November 2016, at para 69

[106] AWU, submission in reply - exposure draft, 23 November 2016, at para 70

[107] AWU, submission in reply - exposure draft, 23 November 2016, at paras 71–72

[108] AWU, submission in reply - exposure draft, 23 November 2016, at para 73–74

[109] AWU, submission in reply - exposure draft, 23 November 2016, at paras 75–79

[110] NFF, submission - outstanding claims, 26 October 2016, at para 25

[111] NFF, submission - outstanding claims, 26 October 2016, paras 27–28

[112] NFF, submission - outstanding claims, 26 October 2016, at para 29

[113] AWU, submission in reply - exposure draft, 23 November 2016, at paras 13 and 15

[114] AWU, submission in reply - exposure draft, 23 November 2016, at para 14

[115] AWU, submission in reply - exposure draft, 23 November 2016, at para 16

[116] AWU, submission in reply - exposure draft, 23 November 2016, at para 17

[117] AWU, submission in reply - exposure draft, 23 November 2016, at para 18

[118] NFF, submission - exposure draft, 14 April 2016, at para 35; and NFF, submission - outstanding claims, 26 October 2016, at para 31

[119] AWU, submission - exposure draft,17 April 2016, at para 13

[120] Business SA, submission in reply - exposure draft, 6 May 2016, at para 11.11

[121] NFF, submission in reply - exposure draft, 5 May 2016, at para. 17

[122] NFF, submission - exposure draft, 14 April 2016, at para 47; NFF, submission - outstanding claims, 26 October 2016, at para 32

[123] NFF, submission - exposure draft, 14 April 2016, at para 48

[124] NFF, submission - exposure draft, 14 April 2016, at para 49

[125] NFF, submission - exposure draft, 14 April 2016, at para 49

[126] See clause 32.7(a) of the revised exposure draft and clauses 36.5 and 36.10 of the Pastoral Industry Award 2010 [MA000035]

[127] NFF, submission - outstanding claims, 26 October 2016, at para 34

[128] AWU, submission - exposure draft,17 April 2016, at para 14

[129] AWU, submission in reply - exposure draft, 5 May 2016, at para 25

[130] See clause 26.1 of Pastoral award Exposure draft; clause 30.1 of Pastoral Industry Award 2010 [MA000035]

[131] AWU, submission in reply - exposure draft, 5 May 2016, at para 26

[132] Business SA, submission - exposure drafts, 15 April 2016, at para 11.2.5

[133] Business SA, submission - exposure drafts, 15 April 2016, at para 11.2.5

[134] Business SA, submission - exposure drafts, 15 April 2016, at para 11.2.5

[135] NFF, submission - outstanding claims, 26 October 2016, at para 34

[136] Business SA, submission in reply - exposure draft, 6 May 2016, at para 11.13

[137] AWU, submission - exposure draft,17 April 2016, at para 16

[138] Transcript,4 July 2016, at paras 302–306

[139] Transcript,4 July 2016, at para 301

[140] Transcript,4 July 2016, at PN312

[141] Transcript,4 July 2016, at PN324

[142] AWU, submission in reply - exposure draft, 23 November 2016, at para 20; AWU, submission - exposure draft, 17 April 2016, at para 23; AWU, submission in reply - exposure draft, 23 November 2016, at paras 33; Business SA, submission - exposure drafts, 15 April 2016, at 11.2.9; NFF, submission - exposure draft, 14 April 2016, at paras 61–63; and NFF, submission - outstanding claims, 26 October 2016, at paras 37–39

[143] ABI, submission - exposure drafts, 15 April 2016, at para 19.7

[144] NFF, submission - outstanding claims, 26 October 2016, at para 40; and NFF, submission - exposure draft, 14 April 2016, at paras 66–67

[145] NFF, submission - outstanding claims, 26 October 2016, at para 40

[146] NFF, submission - outstanding claims, 26 October 2016, at para 42

[147] NFF, submission - exposure draft, 14 April 2016, at para 69

[148] NFF, submission - exposure draft, 14 April 2016, at para 70

[149] AWU, submission in reply - exposure draft, 23 November 2016, at para 10

[150] AWU, submission in reply - exposure draft, 23 November 2016, at para 11

[151] AWU, submission in reply - exposure draft, 23 November 2016, at para 11, (submission referring to clause 6.4(d) of exposure draft)

[152] AWU, submission in reply - exposure draft, 23 November 2016, at para 11, (submission referring to clause 26.1 of exposure draft)

[153] AWU, submission in reply - exposure draft, 23 November 2016, at para 12

[154] Transcript, 4 July 2016, at PN 424-426

[155] FWO, correspondence, 2 March 2015, at item 29

[156] FWO, correspondence, 2 March 2015, at item 29

[157] Transcript, 4 July 2016, at PN 498

[158] AWU, submission - exposure draft, 17 April 2016, at para 31

[159] Transcript, 4 July 2016, at PN 497 and see more generally discussion at PN 488–498

[160] Transcript, 4 July 2016, at PN 489

[161] NFF, submission - exposure draft, 14 April 2016, at para 74; and Transcript, 4 July 2016, at PN 482

[162] AWU, submission in reply - exposure draft, 23 November 2016, at para 24

[163] AWU, submission - exposure draft, 17 April 2016, at para 28

[164] AWU, submission in reply - exposure draft, 23 November 2016, at para 26

[165] AWU, submission - exposure draft, 17 April 2016, at para 29

[166] NFF, submission - outstanding claims, 26 October 2016, at para 44; and AWU, submission in reply - exposure draft, 23 November 2016, at para 23

[167] NFF, submission - outstanding claims, 26 October 2016, at para 44

[168] NFF, submission - outstanding claims, 26 October 2016, at para 45

[169] AWU, submission - exposure draft, 17 April 2016, at para 31; and AWU, submission in reply - exposure draft, 23 November 2016, at para 27

[170] AWU, submission - exposure draft, 17 April 2016, at para 31

[171] AWU, submission - exposure draft, 17 April 2016, at para 30

[172] AWU, submission - exposure draft, 17 April 2016, at para 30

[173] AWU, submission - exposure draft, 17 April 2016, at para 31

[174] ABI, submission in reply - exposure drafts, 6 May 2016, at para 19.5

[175] AWU, submission - exposure draft, 17 April 2016, at paras 50 and 52

[176] NFF, submission in reply - exposure draft, 5 May 2016, at para 42

[177] AWU, submission in reply - exposure draft, 23 November 2016, at para 29; and NFF, submission - exposure draft, 14 April 2016, at paras 80–81

[178] NFF, submission - exposure draft, 14 April 2016, at para 81; and NFF, submission - outstanding claims, 26 October 2016, at para 46

[179] AWU, submission in reply - exposure draft, 23 November 2016, at para 28

[180] NFF, submission - outstanding claims, 26 October 2016, at para 49; and NFF, submission - exposure draft, 14 April 2016, at para 81 on pp. 14–15

[181] NFF, submission - outstanding claims, 26 October 2016, at para 49

[182] NFF, submission - exposure draft, 14 April 2016, at para 81 on pp 14–15; and NFF, submission - outstanding claims, 26 October 2016, at para 46 on p.7

[183] AWU, submission in reply - exposure draft, 23 November 2016, at paras 29-30

[184] AWU, submission in reply - exposure draft, 23 November 2016, at paras 30–31

[185] NFF, submission - outstanding claims, 26 October 2016, at para 48

[186] NFF, submission - exposure draft, 14 April 2016, at para 81; and NFF, submission - outstanding claims, 26 October 2016, at para 47

[187] AWU, submission - exposure draft, 17 April 2016, at para 33

[188] Business SA, submission in reply - exposure drafts, 6 May 2016, at 11.23

[189] AWU, submission in reply - exposure draft, 23 November 2016, at paras 30–34

[190] AWU, submission - exposure draft, 17 April 2016, at para 36

[191] AWU, submission - exposure draft, 17 April 2016, at para 37

[192] NFF, submission in reply - exposure draft, 5 May 2016, at para 33

[193] ABI, submission in reply - exposure draft, 6 May 2016, at 19.7

[194] Business SA, submission – exposure drafts, 15 April 2016, at para 11.2.11; and NFF, submission - exposure draft, 14 April 2016, at para 82

[195] Business SA, submission – exposure drafts, 15 April 2016, at 11.2.11; see Pig Breeding and Raising (AWU) Award at cl.15.3.8 and cl.14.1

[196] AWU, submission in reply - exposure draft, 5 May 2016, at paras 42 and 89

[197] NFF, submission - exposure draft, 14 April 2016, at para 98

[198] NFF, submission -revised exposure draft and summary of submission, 28 September 2016, at para 8

[199] SCAA, submission in reply, 20 October 2016, summary table at para 22

[200] AWU, submission in reply - exposure draft, 23 November 2016, at para 38

[201] NFF, submission -revised exposure draft and summary of submission, 28 September 2016, at para 8, and SCAA, submission in reply, 20 October 2016, summary table at para 22

[202] NFF, submission - revised exposure draft and summary of submission, 28 September 2016, at para 8, and NFF, submission - outstanding claims, 26 October 2016, at paras 54–61

[203] NFF, submission - revised exposure draft and summary of submission, 28 September 2016, at para 8

[204] NFF, submission - exposure draft, 14 April 2016, at para 99

[205] NFF, submission - outstanding claims, 26 October 2016, at para 62

[206] NFF, submission - outstanding claims, 26 October 2016, at para 62; and NFF, submission - revised exposure draft and summary of submission, 28 September 2016, at para 8

[207] AWU, submission in reply, 23 November 2016, at para 39; and AWU, submission in reply - exposure draft, 5 May 2016, at para 52

[208] AWU, submission in reply, 23 November 2016, at paras 39–46

[209] NFF, submission - revised exposure draft and summary of submission, 28 September 2016, at para 8

[210] NFF, submission - revised exposure draft and summary of submission, 28 September 2016, at para 8

[211] SCAA, submission in reply, 20 October 2016, summary table at para 22

[212] NFF, submission - outstanding claims, 26 October 2016, at paras 66–68

[213] AWU, submission in reply - exposure draft, 5 May 2016, at para 61

[214] AWU, submission in reply, 23 November 2016, at para 47

[215] AWU, submission - exposure draft, 17 April 2016, at para 48

[216] AWU, submission - exposure draft, 17 April 2016, at para 48

[217] AWU, submission - exposure draft, 17 April 2016, at para 49

[218] AWU, submission - exposure draft, 17 April 2016, at para 51

[219] Transcript, 4 July 106 at PN 52–53

[220] NFF, submission - exposure draft, 14 April 2016, at paras 118–119

[221] NFF, submission - exposure draft, 14 April 2016, at paras 118–119

[222] NFF, submission - exposure draft, 14 April 2016, at para 120

[223] NFF, submission - exposure draft, 14 April 2016, at para 120

[224] NFF, submission - exposure draft, 14 April 2016, at paras 120–122

[225] NFF, submission - outstanding claims, 26 October 2016, at paras 71–73

[226] AWU, submission in reply - exposure draft, 5 May 2016 at para 68

[227] AWU, submission in reply - exposure draft, 5 May 2016 at para 68

[228] NFF, submission - exposure draft, 14 April 2016, at paras 124–125

[229] See AWU, submission in reply - exposure draft, 5 May 2016 at para 68; and Business SA, submission in reply - exposure drafts, 6 May 2016, at para 11.37

[230] NFF, submission - outstanding claims, 26 October 2016, at para 74

[231] Transcript, 4 July 2016, at PN 610–614

[232] NFF, submission, 8 July 2016, at p. 3

[233] See Statement [2016] FWC 1838 attaching Amended Directions

[234] MUA submission, 14 April 2016

[235] Ports Australia reply submission, 18 May 2016

[236] Transcript, 6 June 2016

[237] Transcript, 4 August 2016

[238] Port Services Award 1998 [AP792489]

[239] Port Authorities Award – State 2003 [AN140213]

[240] Maritime Union of Australia Submission – 14 April 2016

[241] Maritime Union of Australia and The Australian Institute of Marine and Power Engineers – Parties’ draft award—Maritime Industry Port Authorities & Construction Award 2010

[242] Ports Australia submissions in reply – 18 May 2016

[243] Ports Australia submissions in reply – 18 May 2016

[244] See Decision [2014] FWCFB 1788 at [24] and [60]

[245] See Statement [2016] FWC 1838 attaching Amended Directions

[246] AWU submission – 18 April 2016; and reply submission – 5 May 2016

[247] Business SA submission – 15 April 2016

[248] MIAL submission – 14 April 2016; and reply submission – 5 May 2016

[249] MUA submission – 28 May 2016; submission – 14 April 2016

[250] Transcript – 6 June 2016

[251] Transcript – 4 August 2016

[252] [2016] FWC 7768

[253] See Transcript – 4 August 2016 at PN405–602

[254] Statement [2016] FWC 1838

[255] Transcript, 6 June 2016 at PN915–941

[256] Statement [2016] FWC 1838

[257] Transcript, 4 August 2016

[258] [2016] FWC 7768

[259] See Transcript, 4 August 2016 at PN405–602

[260] Statement [2016] FWC 1838, Transcript, 4 August 2016 at PN685

[261] [2015] FWCFB 4960

[262] Ai Group submission – report to the full bench, 5 August 2016; CEPU, Submission – report to the full bench, 28 July 2016

[263] Transcript 6 June 2016 at PN 452

[264] Transcript 6 June 2016 at PN 452

[265] Report to the Full Bench, 3 June 2016 at para 3, see Attachment A item 1

[266] Transcript, 1 June 2016 PN 458

[267] Report to the Full Bench, 25 August 2016, see Attachment A item 1

[268] National Farmers Federation submission 16 July 2016 at paragraph 3

[269] Report to the Full Bench, 3 June 2016, Annexure G – Summary of Proposed Variation (amended), item 1

[270] Comparison document to the revised exposure draft of the plain language Pharmacy Industry Award, 22 July 2016, page 3

[271] See NFF Submission 14 April 2016 at paragraph 12

[272] Business SA Submission 6 May 2016 at paragraph 8.26

[273] AWU submission 5 May 2016 at page 2

[274] Transcript, 6 June 2016 at PN 60

[275] [2016] FWC 4756

[276] SDA, APESMA, HSU Joint submission: Revised plain language draft of 21 April 2016, 24 April 2016 paragraph 16

[277] [2016] FWCFB 5621 at [10]

[278] [2016] FWC 4756 at [39]

[279] [2016] FWC 4756 at [40]

[280] Transcript 21 April 2016 at PN877

[281] Matter withdrawn at conference retaining definition in both coverage clause and definition clause, Report to the Full Bench, 3 June 2016 at paragraph 4 (see reference to item 22)

[282] Transcript 21 April 2016 at PN972

[283] Agreed in conference before Johns C, ‘Education Services (Post-Secondary Education) Award’ Summary of Submissions 1 June 2016, see item 2

[284] Report to the Full Bench 3 June 2016 paragraph 3, see attachment A reference to item 5, and item 57

[285] Report to the Full Bench 3 June 2016 paragraph 3, see attachment A reference to item 6

[286] Report to the Full Bench, 25 August 2016 paragraph 3, see attachment A reference to item 3

[287] Higher Education Industry–Academic Staff–Award, Summary of submissions (31 May 2016), Item 8

[288] Higher Education Industry–General Staff–Award, Summary of submissions (1 June 2016), Item 4

[289] Asbury DP, ‘Sugar Industry Award’ Statement 1 June 2016; see also Sugar Industry Award Exposure Draft revised 3 June 2016, clause 2 and 4.2

[290] Transcript 21 April 2016 [PN972]

[291] For Group 3 see: Banking, Finance and Insurance Award 2010; Marketing and Social Research Award 2010; Real Estate Industry Award 2010; Telecommunications Services Award 2010; Electrical Power Industry Award 2010; Seagoing Industry Award 2010

[292] Report to the Full Bench, 3 June 2016, paragraph 3, at attachment A, reference to item 9

[293] Report to the Full Bench, 3 June 2016, paragraph 7, see reference to item 6

[294] Fair Work Commission, Report from the plain language modern award pilot, April 2016, page 23

[295] Comparison document - Revised exposure draft, 22 July 2016, page 3

[296] [2016] FWCFB 4258 at [55]

[297] Transcript, 6 June 2016 PN 246-267

[298] See for example Telecommunication Services Award , Report to the Full Bench, 26 May 2016 see Telecommunication Services Award at p. 5 para 6

[299] Ai Group, Submission- exposure drafts, 14 April 2016, at paras 175-176 and 334-335. Claim made in respect of Business Equipment Award, Horticulture Award

[300] [2015] FWCFB 4658 see definitions of ‘all purpose’ at [42]

[301] [2015] FWCFB 4658 [44]

[302] Report to the Full Bench, 2 May 2016, at p.2 para 6

[303] Transcript 20 July 2016 at PN803

[304] Ai Group Submission, 31 August 2016 at para 6

[305] Ai Group Submission, 31 August 2016 at paras 3-4

[306] Ai Group Submission, 14 April 2016 at para 7-15

[307] [2015] FWCFB 7236 at [299]

[308] Ai Group Submission, 14 April 2016 at para 115

[309] Ai Group Submission, 14 April 2016 at para 350

[310] Ai Group Submission, 14 April 2016 at para 349

[311] Ai Group Submission, 14 April 2016 at para 158

[312] Report of the Full Bench into Inquiry into Penalty Payments (Case No. B274 of 1979) QGIG, vol 108, 213

[313] Ai Group Submission, 14 April 2016 at para 9

[314] Workers Compensation Act 1987 (NSW) s.44C

[315] [2015] FWCFB 4658 [35]-[47]

[316] [2015] FWCFB 4658 [35]

[317] [2015] FWCFB 4658 at [47]

[318] Ai Group Submission, 31 August 2016 at para 6–48

[319] Ai Group Submission, 31 August 2016 at paras 10

[320] Transcript, 6 June 2016 at PN 410–415

[321] [2016] FWC 4756 at [5]

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