4 yearly review of modern awards – Award stage – Group 3(AM2014/223 and others) - [2017] FWCFB 5536

[2017] FWCFB 5536

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

(AM2014/223 and others)

JUSTICE ROSS, PRESIDENT
SENIOR DEPUTY PRESIDENT HAMBERGER
DEPUTY PRESIDENT CLANCY
COMMISSIONER JOHNS

MELBOURNE, 30 OCTOBER 2017

4 yearly review of modern awards – award stage – exposure drafts – technical and drafting issues – Group 3 awards.

CONTENTS

Paragraph
1. Introduction	[1]
2. Review of Group 3 awards	[4]
*2.1 Clerks Private Sector Award 2010*	[10]
2.2 Dredging Industry Award 2010	[15]
2.3 Educational Services (Post-Secondary Education) Award 2010	[84]
*2.4 Educational Services (Schools) General Staff Award 2010*	[95]
*2.5 Fitness Industry Award 2010*	[131]
*2.6 Gardening and Landscaping Services Award 2010*	[167]
*2.7 Horticulture Award 2010*	[183]
*2.8 Legal Services Award 2010*	[235]
*2.9 Nursery Award 2010*	[270]
*2.10 Pastoral Award 2010*	[283]
*2.11 Silviculture Award 2010*	[341]
*2.12 Sporting Organisations Award 2010*	[442]
*2.13 Sugar Industry Award 2010*	[452]
*2.14 Wine Industry Award 2010*	[538]
3. Other matters	[579]
4. Next steps	[593]

ABBREVIATIONS

ABI	Australian Business Industrial and New South Wales Business Chamber (jointly ABI)
Act	Fair Work Act 2009 (Cth)
AFEI	Australian Federation of Employers and Industries
AHEIA	Australian Higher Education Industrial Association
Ai Group	Australian Industry Group
AIS	Association of Independent Schools
AMWU	Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers’ Union
ASMC	Australian Sugar Milling Council
ASSA	Australian Swim Schools Association Ltd
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
COAG	Council of Australian Governments
Commission	Fair Work Commission
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
FA	Fitness Australia
FWO	Fair Work Ombudsman
GA	Gymnastics Australia
Go8	Group of Eight Universities
IEU	Independent Education 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
July 2017 decision	Full Bench decision – Award stage – exposure drafts – Group 3 Awards – 6 July 2017 [2017] FWCFB 3433
NES	National Employment Standards
NFF	National Farmers’ Federation
NTEU	National Tertiary Education Industry Union
NUW	National Union of Workers
Review	4 yearly review of modern awards under s.156 of the Fair Work Act 2009
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
SAWIA	South Australian Wine Industry Association
the Clerks Award	Clerks – Private Sector Award 2010
the Dredging Award	Dredging Industry Award 2010
the Post-Secondary Award	Educational Services (Post-Secondary Education) Award 2010
the General Staff Award	Educational Services (Schools) General Staff Award 2010
the Fitness Award	Fitness Industry Award 2010
the Gardening Award	Gardening and Landscaping Services Award 2010
the Horticulture Award	Horticulture Award 2010
the Legal Services Award	Legal Services Award 2010
the Nursery Award	Nursery Award 2010
the Pastoral Award	Pastoral Award 2010
the Silviculture Award	Silviculture Award 2010
the Sporting Organisations Award	Sporting Organisations Award 2010
the Sugar Award	Sugar Industry Award 2010
the Wine Industry Award	Wine Industry Award 2010
UV	United Voice
VOH	Voice of Horticulture

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 issues arising out of the awards in Group 3. The 33 awards allocated to Group 3 are listed at Attachment A to this decision. This decision should be read in conjunction with the decision issued on 6 July 2017 (the July 2017 decision) which dealt with 19 of the awards in Group 3. This decision deals with the remaining awards within Group 3.

In addition to the July 2017 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 (the December 2014 decision), 13 July 2015 (the July 2015 decision) and 30 September 2015 (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[1], dealt with alleged inconsistencies with the National Employment Standards (NES). Further decisions in relation to award flexibility (AM2014/300), annual leave (AM2014/47) and transitional provisions in relation to accident pay (AM2014/190) 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 subsequently 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 they were included in the ‘summaries of submissions’ published on the Award Review webpage.

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 to deal with the technical and drafting issues identified in relation to the Group 3 exposure drafts. The purpose of the mentions 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.

After the mentions, further conferences were conducted by individual members in respect of particular Group 3 awards. As noted above, the July 2017 decision dealt with of 19 of the awards in Group 3 and this decision deals with the remaining awards in Group 3, that is:

· 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;

· Pastoral Award 2010;

· Silviculture Award 2010;

· Sporting Organisations Award 2010; and

· Wine Industry Award 2010.

We now turn to the particular awards.

2.1 Clerks Private Sector Award 2010

As confirmed in the Statement issued on 15 July 2016,[2] the Clerks—Private Sector Award 2010[3] (Clerks Award) will be the subject of the plain language review process. In consultations with the parties it was agreed that the outstanding technical and drafting issues would be dealt with prior to the plain language redrafting.[4]

Written submissions on the 13 outstanding technical issues were due by 8 September 2016 and submissions in reply by 27 September 2016. A revised exposure draft was published by the Commission on 11 October 2016 with a plain language re-drafted exposure draft to be published for comment.

Following further written submissions and consultations a Statement was issued on 4 November 2016[5] setting out the items that had been resolved and noting that the outstanding issues would be dealt with as part of the plain language re-drafting process.

An initial plain language exposure draft was published on 3 February 2017 along with a comparison document detailing the changes between the previous exposure draft and the plain language re-draft. Subsequently there have been further written submissions and a number of revised exposure drafts published. The plain language draft was considered at a conference on 15 September 2017.[6]

There are currently no matters for this Full Bench to determine in relation to the Clerks Award. The Full Bench constituted to deal with the plain language redrafting of modern awards will continue to deal with the Clerks Award.

2.2 Dredging Industry Award 2010

On 15 January 2016 the Commission published an initial exposure draft based on the Dredging Industry Award 2010[7] (Dredging 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.[8] Submissions were received from the MUA[9] and the AWU[10] and on 26 May 2016 the Commission published a summary of submissions.

The Dredging 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.

The Australian Institute of Marine and Power Engineers (AIMPE), the AWU, and the MUA appeared at the 6 June 2016 mention.[11]

Following the 6 June 2016 mention, the Commission published a revised summary of submissions on 24 June 2016. A further conference in relation to the review of the Dredging Award was held in Sydney on 4 August 2016 (the August conference) to discuss the issues listed in the revised summary of submissions.[12] AIMPE, the AWU and the MUA appeared at that conference.

On 7 November 2016 the Commission issued a Statement[13] that attached a report outlining the matters discussed at the August conference. That Statement included draft directions setting out the process for dealing with the outstanding technical and drafting matters for the Dredging Award. A revised exposure draft and a further revised summary of submissions, reflecting the agreed position of the parties following the August conference,[14] were published on 8 November 2016. Parties were given until 14 November 2016 to file any comments on the draft directions or on the attached reports. No comments were received and final directions were issued on 15 November 2016.

On 21 November 2016 the MUA wrote to the Commission to withdraw claim 2. The outstanding items are the subject of the 15 November 2016 Directions requiring the filing of further material in December 2016. No further submissions were filed in respect of this award.

Items 1, 3–4, 15–19 and 24 were agreed between the parties. Items 5 and 23 were referred to the Part-time and Casual Employment Full Bench, but were not pursued in those proceedings.

As is apparent from the 7 November 2016 report, there are 13 issues that remain at least partially unresolved and require determination.

Item 6 – Hours of work – span of hours

The AWU submits that the exposure draft and corresponding clause in the current award ‘allows workers to agree to work any number more hours than 12 at the ordinary rate of pay, and without regard to the nature of the clause being about “day workers”’.[15]

The exposure draft provision, which is based on the current Dredging award, is:

8.2 Span of hours—vessels fully operational

(a) Day workers

Hours of duty for day workers will consist of:

(i)12 hours per day on each of seven days per week between 6.00 am and 6.00 pm; or

(ii) other starting and finishing times as may be mutually agreed.

The AWU submitted that three enterprise agreements in the industry currently contain provisions that limit the maximum number of hours to 14 hours followed by a 10 hour break.[16] The AWU submitted that a 14 hour day is standard in the dredging industry.

The AWU suggested varying the clause as per the provisions in the Manufacturing and Associated Industries and Occupations Award 2010[17] (Manufacturing Award). The wording of clause 36.2(c) of the Manufacturing Award is set out below:

36.2 Ordinary hours of work—day workers

(c)The ordinary hours of work are to be worked continuously, except for meal breaks, at the discretion of the employer between 6.00 am and 6.00 pm. The spread of hours (6.00 am to 6.00 pm) may be altered by up to one hour at either end of the spread, by agreement between an employer and the majority of employees concerned or, in appropriate circumstances, between the employer and an individual employee.

(d)Any work performed outside the spread of hours must be paid for at overtime rates. However, any work performed by an employee prior to the spread of hours which is continuous with ordinary hours for the purpose, for example, of getting the plant in a state of readiness for production work is to be regarded as part of the 38 ordinary hours of work.

(emphasis added)

The AWU proposed the following draft variation to the Dredging Award:

(x)the spread of hours (6.00 am to 6.00 pm) may be altered by up to one hour at either end of the spread, by agreement between an employer and the majority of employees concerned and covered by this award, or, in appropriate circumstances, between the employer and an individual employee.

(x)Any work performed outside the agreed spread of hours must be paid for at overtime rates in accordance with 13.1.

It seems to us that the AWU’s proposed variation does not address the identified issue with the existing clause, because it would not cap the number of hours on a single shift or provide for a subsequent rest period, it only allows the span of hours to be varied, but does not prescribe the maximum number of hours per day.

In the absence of any submissions from other interested parties, the Commission has considered the provisions about ordinary hours of work in other modern awards and the relevant pre-modern instruments.

In a number of 4 yearly review proceedings, interested parties have contended that the presence of certain provisions in enterprise agreements is a basis for adopting those provisions into the applicable modern award. Generally speaking, this contention has not been accepted. For example, the Full Bench that considered the substantive variations proposed to the Graphic Arts, Printing and Publishing Award 2010[18] noted that:

[59] Although the AMWU sought by general submissions to justify the variations sought, its submissions primarily focused on an argument that the Award should be varied to reflect these conditions because these conditions were the pre-2009 standard for the metropolitan daily newspaper sector. In other words, the AMWU urged us to approach the matter in the same manner as the Full Bench in the Award Modernisation Decision approached the task of creating the Award in 2010 but having regard for the first time, to the standards in the metropolitan newspaper sector. We consider that if we adopt this approach then it is not the standards applying to the sector in general which must be considered but rather the standards as reflected in the pre-2009 industrial instruments which applied to the sector. The relevant industrial instruments in this context are the awards. Absent some broader merit based case, we do not consider that the enterprise agreements or over award arrangements which may have been in place in the sector to be relevant.[19] (emphasis added)

As noted in the AWU’s submission, the Dredging Industry (AWU) Award 1998, the Marine Engineers (Non Propelled) Dredge Award 1998 and the Maritime Industry Dredging Award 1998[20] contained similar provisions regarding hours of duty being varied by agreement. The difference between the pre-modern instrument provisions and the modern award provision is that the “pre-reform awards allowed for the variation of the aggregate wage and leave entitlements to reflect the change in ordinary working hours”.[21]

A comparable clause in the Coal Export Terminals Award 2010[22] is:

16.2 Employees other than shiftworkers

(a)Employees, other than shiftworkers, may be required to work up to 10 ordinary hours per day, between the hours of 6.00 am and 6.00 pm Monday to Sunday. If the employer and a majority of affected employees agree, up to 12 ordinary hours per day may be worked.

(b)All ordinary hours worked by an employee other than a shiftworker on the following days will be paid for at the following rates:

We agree that the modern award has not replicated the requirement to remunerate additional hours of work undertaken subject to an agreement to vary the ‘span of hours’ provisions that appeared in the pre-reform instruments. We note that the AWU’s proposed variation does not limit or vary the number of hours that may be worked in a single shift. This was also noted at the conference on 4 August 2016.[23] By varying the span of hours by one hour at each end, it expands the span of time when ordinary hours may be performed; it does not expand the number of ordinary hours that an employee may be required to work before overtime provisions are triggered. The only other protection is that clause 8 operates subject to clause 9.4–Maximum hours. Therefore, any remaining concerns about avoiding excessive hours may require further consideration and additional variations.

Our provisional view is that the exposure draft span of hours clause should be varied as follows:

8.2 Span of hours—vessels fully operational

(a) Day workers

(i)Hours of duty for day workers will consist of 12 hours per day on each of seven days per week between 6.00 am and 6.00 pm.

(ii)The ordinary hours of work are to be worked continuously, except for meal breaks, at the discretion of the employer between 6.00 am and 6.00 pm. The spread of hours (6.00 am to 6.00 pm) may be altered by up to one hour at either end of the spread, by agreement between an employer and the majority of employees concerned or, in appropriate circumstances, between the employer and an individual employee.

(iii)Any work performed outside the agreed spread of hours must be paid for at overtime rates in accordance with clause 13.1.

Interested parties have until 4.00pm Friday, 24 November 2017 to provide any feedback on this provisional view. In the absence of any objection the variation will be made.

Items 7–11 – Breaks

As noted in the Report, the exposure draft of 15 January 2016 included a question from the Commission about how clauses 9.2(c), 9.2(e) and 9.3 interact. The intention of the clauses was discussed at the conference on 4 August 2016.[24]

In the revised exposure draft published on 8 November 2016, the Commission redrafted clauses 9.1, 9.2 and 9.3.

In the absence of any further feedback from the interested parties, the redrafted clauses will now be adopted.

Item 12 – Weekly aggregated wage

The FWO raised an issue about the use of the phrase ‘weekly aggregated rate’ in clause 14.3 of the Dredging Award and whether, in the absence of a definition, it was clear what entitlements had been aggregated.[25]

In the initial exposure draft of the Dredging Award parties were asked to comment on whether the award should include a definition of ‘aggregated rate’.[26] It was suggested in the exposure draft that a definition may clarify how the rate was calculated and improve transparency when the rates were adjusted following the Annual Wage Review.

Following the conference on 30 March 2016 the MUA proposed that the source of clause 14.3 of the Dredging Award was clause 3 of Part C of Maritime Industry Dredging Award 1998.[27] They provided the following extract of clause 3.1.2 of the Maritime Industry Dredging Award 1998:

‘ The aggregate wages prescribed in this Part are minimum rates and have been fixed on the basis that, except where otherwise provided in the award, they take account of all aspects and conditions of employment both general and Particular and incorporate the dredging industry allowance.’

The MUA provided a further submission proposing the introduction of a new definition into the award in the following terms

‘ Aggregate rate means the minimum rate that has been fixed on the basis that, except where otherwise provided in the award, it takes account of all aspects and conditions of employment both general and particular and incorporates the dredging industry allowance.’[28]

The AWU submitted that a definition of ‘aggregated rate’ should be inserted to clarify how the wage is calculated. AWU also queried why there were no shiftworker rates for ‘Trailer master’ and ‘Chief engineer’ classifications.[29]

By correspondence dated 7 October 2016 the Commission asked the parties to confirm how the aggregated wages ought to be calculated.[30] The Commission attached a submission from the MUA from 2009 setting out how the rates were originally calculated in the pre-reform award. The Commission noted that the relationship between the minimum and aggregate rates has been altered due to flat dollar increases to the minimum rates. The Commission asked the parties to confirm whether the MUA’s methodology is correct and, if so whether the modern award rates should be adjusted accordingly. The Commission attached a document setting out the current rates contained in the Dredging Award and the rates as they would be if adjusted using the MUA methodology.

In reply to the Commission’s correspondence the MUA confirmed that the MUA methodology set out by the Commission was correct and should be used to adjust the modern award rates.[31]

Our provisional view is that the exposure draft will be varied to adopt the MUA’s methodology. Interested parties have until 4.00pm Friday, 24 November 2017 to provide any feedback on this provisional view. In the absence of any objection the variation will be made.

Item 13 – Higher duties

The AWU submitted that the “higher duties” rate is payable where an employee is required to perform the duties of a position at a higher classification level however there may be instances where only some duties are required to be performed. The AWU cited a number of pre-reform awards that entitled employees to the higher rate when “any duties carrying a higher rate” were performed.[32]

Subsequently, the Commission undertook and published research about the ‘higher duties’ clause and its history.[33]

Without re-producing significant excerpts from that research, we agree that AWU’s concern may be resolved by inserting the word ‘any’ in place of the word ‘the’ as follows:

10.4 Higher duties

(a) An employee engaged to perform ~~the~~ any duties of a position at a higher classification level for more than two hours during any one day will be paid the rate applicable to that higher level for all work done on that day.

(b) An employee engaged to perform ~~the~~ any duties of a position at a higher classification level for two hours or less during one day will be paid the higher rate for the actual time worked at that higher level.

Clause 10.4 of the exposure draft will be varied accordingly.

Item 14 – Dual certificate allowance

The AWU submitted that the dual certificate allowance in clause 11.2(b) of the exposure draft should be expressed as an hourly rate as well as a weekly rate.[34]

The submission was considered at the Conference on 4 August 2016.[35] The allowance is an all purpose allowance and is therefore captured in the wage tables in Schedule A of the exposure draft.[36] No variation will be made to clause 11.2(b) the exposure draft.

Item 20 – Shiftwork penalties

The AWU submitted that the wording of clause 13.3(a) of the exposure draft was confusing.[37] The AWU proposed amending the exposure draft clause and clarified its position at the conference on 4 August 2016:[38]

13.3 Shiftwork penalties

(a)A shiftwork loading of 30% of the ordinary hourly rate is payable to an employee working shiftwork and which shift commences at or after 6.00 pm. ~~on any Monday to Friday inclusive.~~

The AWU noted that ‘Shiftworkers’, as defined in clause 8.2(b), include workers performing day shifts and night shifts. However, as it is currently drafted, clause 13.3(a) will not clearly apply to day workers.[39] The current drafting of the shiftworker penalties clause would mean that shiftworkers performing shiftwork on weekends would not be paid the shift loading.

Under clause 20, ordinary hours may be performed on any day of the week for fully operational vessels and on Monday to Friday for vessels that are not fully operational. This does not assist in clarifying the intention of clause 13.3.

In the absence of any submissions from other interested parties, we have considered the provisions in the current modern award and its predecessors.

The current Dredging Award provides:

22.3 Shiftwork penalties

An employee working shiftwork and which shift commences at or after 6.00 pm on any Monday to Friday inclusive, will be paid a loading of 30% of the standard rate per hour. If a three shift per day system is worked the additional rate of 15% will be payable in respect of the afternoon and night shifts.

Having regard to the other agreed changes, the current shift penalties clause provides the same entitlements as the exposure draft. The exposure draft has not created any ambiguity or uncertainty in that regard. As such, it is appropriate to consider the pre-reform award provisions.

By way of example, the Dredging Industry (AWU) Award 1998 provided the following:

3.2.2 Employees working shift work and which shift commences at or after 6.00 p.m. on any Monday to Friday inclusive, shall be paid for such work at the additional rate of 30% calculated on the ordinary rates. This subclause shall apply where two shifts per day are worked. If a three shift per day system is worked the additional rate of fifteen per cent shall be payable in respect of the afternoon and night shifts.

Similar provisions could be found in the the Marine Engineers (Non Propelled) Dredge Award 1998 and the Maritime Industry Dredging Award 1998. On that basis any variation to the exposure draft provisions would be a substantive variation, not a technical and drafting amendment.

In the absence of a merit based argument, we are not satisfied that the variation proposed by the AWU is necessary or appropriate. Clause 13.3(a) of the exposure draft will not be varied.

Item 21– annual leave loading

The AWU indicated that it would seek the insertion of an annual leave loading provision in clause 14 of the exposure draft.[40] The AWU submitted that 17.5% is a national standard in Australia and the Dredging Award is one of only three modern awards that do not include annual leave loading. The AWU made similar submissions about the Book Industry Award 2010[41] and Alpine Resorts Award 2010.[42]

The AWU unsuccessfully sought an identical variation to the Dredging Award as part of the transitional review of modern awards in 2012.[43] The AWU made a number of submissions in support of that claim.

At the Conference on 4 August 2017, the AWU indicated that it would rely on the material already submitted in support of the proposed variation.[44]

In the transitional review of modern awards, the majority of the Annual Leave Full Bench decided not to make the variation sought by the AWU. The majority decision noted that the claim may be “more appropriate for consideration in the four year review”.[45]

The minority decision held that annual leave loading should be inserted into the modern awards that were the subject of the AWU’s claim:[46]

‘The absence of an entitlement to annual leave loading in these awards is unexplained and in my view unfair and unwarranted. The AWU could be criticised for not raising the matter more specifically during the award modernisation process. It has faced up to this and provided an explanation. But any failure on its part should not be a reason to deny its case now when merit is demonstrated. I consider that the AWU has established that the modern awards objective is furthered by the inclusion of an entitlement to annual leave loading in these awards and has made out a case on the merits for its inclusion into the three awards. Turning a blind eye to the intrinsic merit of the applications is not consistent with the obligation to conduct a review of the awards.’

On that basis, we have considered the provisions of the three pre-reform awards mentioned previously in this decision as well as any consideration given to this issue during the award modernisation proceedings.[47]

The three pre-reform awards are silent on annual leave and annual leave loading. During award modernisation, the parties’ draft award and the Commission’s exposure draft were based on the provisions contained in the three pre-reform awards, which are more or less identical. Annual leave was included in the modern award as per the NES but annual leave loading was not adopted.

The AWU previously submitted that the omission of annul leave loading was an inadvertent error because most other modern awards contained annual leave loading provisions.[48] We do not agree. The inclusion of annual leave loading provisions in other modern awards does not create an automatic basis for introducing the entitlement in the Dredging Award. Any such claim must be merit based. As noted previously, a relevant consideration is what the industry standard was prior to 2010.

The AWU submissions previously noted that modern awards covering related industries include provisions about annual leave loading or provide a more generous leave accrual rate.[49] These include the Port Authorities Award 2010;[50] the Seagoing Industry Award 2010;[51] and the Maritime Offshore Oil and Gas Award 2010.[52]

Clause 22 of the Port Authorities Award provides annual leave loading of 20% for shiftworkers and 17.5% for other workers. Clause 19 of the Maritime Offshore Oil and Gas Award and clause 20 of the Seagoing Award provide unique leave accrual calculations to compensate for the hours of work and requirement to be away from home for long periods of time.

We understand that the nature of work and the disabilities associated with the Dredging Award are comparable to the other maritime sectors. The unique element of the Dredging industry is that it tends to be project work. There is no evidence before us about whether these types of employment arrangements mean employees are more or less likely to take annual leave or be paid out any accrued entitlements once the project is completed. These industry practices need to be considered properly when developing an annual leave loading provision or a unique annual leave accrual provision.

The introduction of an annual leave loading provision would be a substantive variation to the Dredging Award and would introduce an entitlement that does not appear to have been a feature of past awards in respect of this sector.

In terms of the modern awards objective, there is no evidence before us that the annual leave provisions in the Dredging Award are not meeting the modern awards objective. It could be argued that the loading would be additional remuneration for employees who work unsociable hours and shiftwork as per s. 134(da) of the Act. However it could equally be said that the introduction of annual leave loading would be an increased cost to employers which is a relevant consideration under s. 134(f) of the Act.

We are not persuaded that there is sufficient material before us to determine the issue, and accordingly do not propose to make the change sought, at this time. If a party wishes to pursue the variation they can make a separate application to that effect. For now, we will not vary clause 14 of the exposure draft to include annual leave loading.

Item 22 – annual leave

As part of the exposure draft process, the Commission asked interested parties to consider whether the definition of ‘Shiftworker’ in Schedule E applies for the purpose of the National Employment Standards.

In response to that question, the MUA submitted that the work pattern in clause 8.2(b) should be used for the purpose of the NES.[53] The AWU agreed with the AWU’s submission.[54]

The MUA indicated that the Full Bench could determine this matter on the papers.[55]

Based on the response from the AWU and MUA, it does not appear any variation to the exposure draft is required because the shift pattern in clause 8.2(b) will be used as the basis for calculating annual leave entitlements in clause 14 as per the National Employment Standards.

Item 25 – Definitions

In response to the AWU’s submission, the Commission published a revised exposure draft that replaced the words ‘laid up’ with ‘not fully operational’.[56]

Parties were subsequently asked to consider whether the amendment to the definition of ‘laid up’ and replacing the words ‘laid up’ with ‘not fully operational’ throughout the award gives rise to any practical issues.

No further submissions were received from the interested parties. We will adopt the change in terminology and invite interested parties to make further submissions by 4.00pm Friday, 24 November 2017 if they have any concerns about the impact of the change.

The summary of submissions was republished on 10 October 2017. There are no other outstanding items regarding the Dredging Award.

2.3 Educational Services (Post-Secondary Education) Award 2010

An exposure draft based on the Educational Services (Post-Secondary Education) Award 2010[57] (Post-Secondary Award) was published by the Commission on 18 December 2015. Pursuant to directions, by 5 May 2016, submissions had been received from a number of parties which identified technical and drafting issues with the exposure draft. A conference was convened before Commissioner Johns on 10 May 2016.[58] Following the conference, the Commission published an updated summary of submissions, followed by a revised exposure draft dated 3 June 2016 that incorporated the changes agreed at the conference. A further updated summary of submissions was published on 10 October 2017.

A mention held before Justice Ross on 7 June 2016 confirmed that most issues had either been resolved by consent or were substantive in nature. The substantive issues in this exposure draft have been referred to a separately constituted Full Bench in AM2015/6.[59] The parties noted that some technical and drafting issues may not be able to be resolved until the outcome of that substantive Full Bench. At the conclusion of the mention before Justice Ross, the parties were directed to review the revised exposure draft and write to the Commission outlining any outstanding drafting or technical issues (those which were not subject to the substantive matters).

The NTEU submitted that all changes indicated in the revised exposure draft published 3 June 2016 properly reflected the discussions of the parties with the exception of the following two clauses.[60]

Item 12 – Academic Teachers – casual rates

The NTEU submit that the second reference in clause 10.1(b) to ‘Marking as a supervising examiner’ should be deleted rather than the first reference in the clause. That is, the reference to ‘marking as a supervising examiner’ that should be deleted is the one which includes the words “(where academic holds a relevant doctoral qualification)”.[61]

The NTEU also raised this technical and drafting issue in submissions regarding the Higher Education Industry – Academic Staff – Award 2010 exposure draft. The Group of Eight Universities (Go8), in correspondence received 10 June 2016[62] noted that it agreed with the submissions of the NTEU in relation to this issue in the Higher Education Industry – Academic Staff – Award 2010, however it is unclear from the submission whether the Group of Eight Universities agrees with the NTEU position in relation to the Educational Services (Post-Secondary Education) Award 2010 revised exposure draft.

Interested parties have until 4.00pm Friday, 24 November 2017 to confirm submissions about amended drafting.

Item 25 – Public Holiday substitution

The NTEU submits that clause 20.2 of the revised exposure draft (“Substitution of public holidays by agreement”) is inconsistent with the NES.[63]

The NTEU also raised this technical and drafting issue in relation to the Higher Education Industry – Academic Staff – Award 2010 and the Higher Education Industry – General Staff Award 2010 (the Higher Education awards). In correspondence dated 10 June 2016[64], the Go8 submitted that (in respect of the Higher Education awards), it believes the existing clauses can be retained. However, Go8 submitted that if the clauses were to be addressed they should be dealt with by this Full Bench.

This Full Bench in the July 2017 decision[65] directed the NTEU to respond to the Go8 submission (in relation to the Higher Education awards) that public holiday substitution should be dealt with by this Full Bench.[66] In correspondence received 28 July 2017[67], the NTEU agreed with the Go8 that this issue should be dealt with by this Full Bench.

It appears the issue raised in relation to the Higher Education awards is substantially the same as that raised in the Educational Services (Post-Secondary Education) Award 2010 revised exposure draft. As such, it is our provisional view that this matter will be dealt with by this Bench. Should any party wish to make a submission regarding this provisional view they are to do so by 4.00pm Friday, 24 November 2017.

Items 8, 10, 13–16, 19, 24, 29

According to the summary of submissions published on 10 October 2017, these items remain outstanding. Interested parties have until 4.00pm Friday, 24 November 2017 to confirm submissions about these outstanding items.

2.4 Educational Services (Schools) General Staff Award 2010

An exposure draft based on the Educational Services (Schools) General Staff Award 2010[68] (General Staff Award) was published on 18 December 2015. Submissions and submissions in reply on technical and drafting issues were filed by the parties on or before 6 May 2016. A summary of submissions was published on 26 May 2016.

A number of substantive issues in this award were referred to a separately constituted Full Bench in AM2015/6 in October 2015.[69]

The Independent Education Union of Australia (IEU) made application to vary the General Staff Award. The application was heard on 21 December 2015 and an order to vary the award was issued on that day.[70] This order reflected the consent position of the parties.

A further hearing was held before Justice Ross on 7 June 2016 to address the outstanding technical and drafting issues. There were a number of issues agreed to or not opposed at the hearing. The parties agreed that the remaining outstanding issues could be determined on the material already filed.[71]

A revised summary of submissions was published on 10 October 2017. Items 1, 3, 4, 5, 9, 13, 18, 19, 20, 22 were either agreed or not opposed. The Commission adopts the agreed position on these issues as set out in the revised summary of submissions.

Items 7, 8, 15, 16, 17, 21 were referred to the Full Bench dealing with matter AM2015/6. These issues have been resolved by this Full Bench and are reflected in Order PR575283 issued 21 December 2015.

Items 23, 24, 25, 26 and 28 were not discussed during the hearing on 7 June 2016. Parties are asked to indicate whether they intend to press these matters by no later than 4.00pm Friday, 24 November 2017.

Item 27 was referred to the Full Bench dealing with AM2015/6 (see Directions issued - Schedule A.2, Item 9).

Items 2, 6, 10, 11, 12, 14 of the summary of submissions are outstanding issues requiring determination. As mentioned previously, the parties have agreed that the remaining outstanding issues could be determined on the material already filed.[72] These outstanding issues are dealt with below.

Item 2 – Part-time employees

The AIS and the IEU seek the inclusion of a cross reference at clause 6.4(a)(ii) of the exposure draft to clause 7 of the exposure draft. Clause 6.4(a)(ii) of the exposure draft deals with part-time employees, while clause 7 deals with leave without pay during non-term weeks. It is submitted that the cross reference should be included for clarification and to make the award easier to understand.[73]

In their reply submission, AFEI outlined that the proposed amendment is unnecessary as it does not clarify the operation of the subclause.[74] AFEI confirmed at the conference on 7 June 2016 that their position is that the cross reference is unnecessary, however they outlined they were ‘not completely opposing it’.[75]

The change sought by the AIS and the IEU is outlined below:

‘6.4 Part-time employees

(a) A part-time employee is engaged to work:

(i) less than 38 ordinary hours per week or less than an average of 38 hours per week; or

(ii) for less than the full school year pursuant to clause 7—Leave without pay during non-term weeks,

and has reasonably predictable hours of work.’

While AFEI submits the variation is unnecessary, there is no submission before us that the inclusion of a new cross-reference will change the operation of the clause or create some ambiguity.

We agree that the addition of the cross-reference will clarify the operation of the clause. The exposure draft will be updated according to the AIS and IEU’s draft.

Insertion of examples (Item 6 – calculating annual salaries and Item 10 – rostering)

The AIS and the IEU seek the insertion of an example of an adjusted salary into clause 7 of the exposure draft. Clause 7 deals with leave without pay during non-term weeks. In their submission of 14 April 2016 the AIS and the IEU included their own example of an adjusted salary. They submit[76] that ‘the example in this instance graphically presents in simple form a typical salary calculation for an employee working term weeks only’. The example proposed is set out below:

Example – Adjusted annual salary (full-time employee)

For example:

Brad is a full-time employee classified at Level 3.1. The annual rate of pay for a fulltime employee working 52.18 weeks of the school year is $39,933.

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

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

The formula in clause 7.2(b) is: A = C x (working weeks + 4 weeks annual leave)

52.18

Calculating the adjusted annual salary:

Step1: (working weeks + 4 weeks annual leave) = 39.4 + 4 = 43.4

Step 2: 43.4/52.18 = 0.8317

Step 3: $39,933 x 0.8317 = $33,212

Adjusted annual salary = $33,212.

The AIS and the IEU also seek the insertion of an example at the end of clause 10 of the exposure draft. Clause 10 deals with ordinary hours of work for shiftworkers.

The example is extracted below:

Example – Broken shift (part-time employee)

Janet is a part-time employee classified at Level 3.1. Her hourly rate of pay is $20.14.

Janet starts work at 7.00 am Thursday and finishes work at 9.00 am on Thursday. She
recommences work at 2.00 pm on Thursday and works until 6.00 pm on Thursday.

Janet will:
· work 6 hours of ordinary time

· work a broken shift.

Calculating the ordinary time pay including the broken shift penalty:
Multiply the hourly rate of pay by the broken shift penalty and by the number of ordinary hours worked = $20.14 x115% x 6 = ($23.16) x 6 = $138.96

Janet is paid a total of $138.96 for Thursday.

NOTE: Calculations in this example are based on the rounded hourly rates in Schedule B.

The AFEI opposes the insertion of both examples outlined above, but advances no reasons as to why they should not be included in the award.[77]

The AFEI and other interested parties had the opportunity to respond to the AIS and IEU’s submission to suggest alternative examples or give reasons why examples should not be adopted. We have not received any submissions to that effect.

We agree that including these examples will clarify the operation of the annual salary clause and the broken shift provision. In the absence of any submissions opposing the inclusion of the examples we will include them. The exposure draft will be varied to include the examples drafted by the AIS and IEU.

Item 11 – Rostering

ABI seek the reinsertion of the shiftwork definition into clause 10 of the exposure draft. They submit the following:

‘We consider that the definitions of shiftwork, which currently appear at clause 25.2 of the current Award, should be inserted back into clause 10 of the Exposure Draft as it deals with ordinary hours for shiftworkers, rather than appearing at clause 15 of the Exposure Draft. Alternatively, there may be merit in having the provision appear at both clauses 10 and clause 15. In our view, it is confusing that a clause titled “Ordinary hours of work – shiftworkers” not actually contain the ordinary hours of work for shiftworkers.’[78]

In their reply submission of 5 May 2016, the AIS and IEU submit the proposed amendment is not necessary.[79]

We agree that duplicating the definition of shiftwork in two clauses is unnecessary; however we do not want to create confusion or ambiguity through the redrafting process so some amendment to the exposure draft is necessary.

Rather than including the shiftwork definition in two clauses, we will amend clause 10 of the exposure draft to include a cross-reference to clause 15.1 as follows:

10.1 Ordinary hours for shiftwork

The definitions for shiftwork are provided in clause 15.1. The ordinary hours for shiftwork will:

(a) be worked continuously each shift (except for broken shifts and meal breaks);

(b) not exceed 10 hours, inclusive of a meal break in any single shift; and

(c) be rostered in accordance with clause 10.2.

Item 12 – Altering the roster

The AIS and the IEU submit that clause 10.2(c)(i) of the exposure draft be subject to the provisions of clause 24.2 to indicate the existence of additional obligations in some instances. Their proposed alteration to clause 10.2(c)(i) of the exposure draft is as follows:

‘10.2 Rostering

…

(c) Altering the roster

(i) A roster may be altered by mutual consent at any time or by amendment of the roster by the employer on seven days’ notice subject to the provisions of clause 24.2 – Consultation about changes to rosters or hours of work.’

AFEI are opposed to the above amendment and submit ‘a change of roster by mutual consent or with 7 days’ notice, will not invoke the consultation process in clause 24.2 of the exposure draft. Including a reference to this clause is likely to lead to employers’ misunderstanding their obligations.’[80]

We agree with the AFEI’s submission that varying clause 10.2(c)(i) as per the AIS and IEU’s submission may create uncertainty or ambiguity about the consultation requirements. We will not make the proposed variation to clause 10.2(c)(i) of the exposure draft.

Item 14 – Broken shifts

In their written submission of 15 April 2016, AFEI submit that clause 10.2(d)(ii) of the exposure draft (which deals with broken shifts) incorporates a substantive change from the current award.[81]

Clause 10.2(d)(ii) of the exposure draft (dealing with ordinary hours of work for shift workers) is in the following terms:

‘(d) Broken shifts

(i) An employee may be rostered to work ordinary hours in a broken shift which is defined as a shift that is rostered in two periods of duty, exclusive of breaks, per day.

(ii) Where an employee is rostered to work a broken shift, the employee will be paid in accordance with the appropriate penalty in clause 15.4 with a minimum payment as for two hours for each period of duty.’

AFEI submit that clause 15.4 of the exposure draft (dealing with penalties and overtime) excludes casual employees from this penalty rate and the two hour minimum payment for each period of duty.[82]

Clause 15.4 of the exposure draft is in the following terms:

‘15.4 Broken shifts

(a) An employee, other than a casual, rostered to work ordinary hours in a broken shift will be paid 115% of the minimum hourly rate with a minimum payment as for two hours for each period of duty.

(b) The maximum spread between the start of the first period of duty and the end of the second period of duty for a broken shift is 12 hours. Any hours in excess of this 12 hour spread will be paid for as overtime.

(c) The provisions of clause 15.4(b) do not apply to a boarding supervision services employee who is provided with reasonable accommodation including living quarters, fuel and light, and available to the employee for their exclusive use for 52 weeks of the year, at no cost to the employee.’

AFEI submits that ‘clause 10.2(d)(ii) of the Exposure Draft should be amended to clarify that the penalty and minimum payment in clause 15.4 applies to employees other than casual employees.’[83]

In their reply submission of 5 May 2016 the AIS and IEU oppose the variation proposed by the AFEI and submit it would change the operation of the award. They submit that the change proposed ‘makes it clear that a casual employee is not entitled to be paid the broken shift penalty.’[84] They submit that clause 6.5(d) (i) of the exposure draft makes it clear that a casual employee is engaged and paid for a minimum of two hours per shift. This clause corresponds with the first sentence of cl.10.5(c) of the current award.

They further submit that these two clauses of the exposure draft, when read together, replicate the employment arrangements under the current award. They say, that is, a casual employee engaged to work a broken shift would be engaged for two engagements, each of not less than two hours, during the ordinary spread of hours. The casual employee is entitled to be paid the casual loading but has no entitlement to be paid the broken shift penalty.

We agree with the AIS and IEU’s submission that the intention of clause 15.4(a) is to exclude casuals from receiving the 15% loading for a broken shift because they receive the 25% casual loading under clause 6.5(b).

If the AFEI’s submission is accepted, it may create ambiguity about the minimum shift entitlements for casuals because a two hour minimum engagement applies to casuals by virtue of clause 6.5(c). The remaining provisions of clause 15.4 apply equally to casuals as to other employees. Accordingly, there is no need to vary the exposure draft.

2.5 Fitness Industry Award 2010

On 18 December 2015 the Commission published an exposure draft based on the Fitness Industry Award 2010[85] (Fitness Award), together with a comparison document showing the changes to the structure and language of the award. Interested parties were invited to file submissions about drafting or technical issues in the exposure draft. Submissions were received from the AWU, ABI, Gymnastics Australia, Tennis Australia, Fitness Australia, Aussie Aquatics, Swim Australia and Australian Swimming Coaches & Teachers Association Ltd, Business SA and the FWO. A conference was conducted on 30 May 2016. With the exception of the FWO and Swim Australia and Australian Swimming Coaches & Teachers Association Ltd, it was attended by representatives for each of those organisations. AFEI also participated. Deputy President Clancy published a report to the Full Bench on 3 June 2016 that set out a number of the proposed variations to the exposure draft that were agreed, a number that were not agreed and a list of items from the submissions that would be the subject of further discussions between the interested parties. The report also noted that items 4 and 12 were withdrawn or no longer pressed.

A further conference was held on 9 August 2016 to deal with the outstanding issues. It was attended by Gymnastics Australia, Tennis Australia, Fitness Australia, the AWU, the AFEI and Australian Swim Schools Association Ltd (ASSA). A second report to the Full Bench was made by Deputy President Clancy on 25 August 2016. While some of the outstanding items were resolved, some were still disputed and some required further consideration and discussion. Directions were issued on 14 December 2016 and parties were required to file further material in January 2017.

The material filed identified a number of outstanding issues. A revised summary of submissions was published on 17 February 2017, incorporating submissions lodged on or before 16 February 2017. A further updated summary of submissions was published on 10 October 2017.

Items 1, 2, 2B, 3, 5, 7, 8, 9A, 13, 14, 15, 16A, 16B were either agreed or not opposed. The Commission adopts the agreed position on these issues as set out in the summary of submissions.

A number of items of the revised summary of submissions are outstanding and require determination. We deal with these below.

Items 2A and 32 – Coverage and definitions

Clause 3.4 of the exposure draft provides that the award does not cover an employee who is employed by the employer to provide administrative and other operational support outside of a fitness centre. The language is identical to that used in the coverage clause of the Fitness Industry Award 2010.

The ASSA submits that clause 3.4 of the exposure draft conflicts with the classification definitions at levels 1, 2, 3, 6 and 7 contained within Schedule A.[86] The classification definitions relate in part to functions reasonably falling within the activity of providing ‘administrative and other operational support’. The ASSA considers this to be a critical issue as these classifications, and the modern award generally, are widely used in the swim school sector to engage support and managerial staff — and clause 3.4 restricts coverage of the award by effectively excluding organisations such as aquatic centres, indoor sports centres, and providers of ‘aquatic services or classes’.

The ASSA originally submitted that the clause should be amended to either remove the reference to ‘outside of a fitness centre’, or alternatively, expanded to cover the full range of activities that are listed in (b) to (k) of the definition of ‘Fitness Industry’ in clause 3.2. In doing so, the ASSA suggested clause 3.2 would reflect industry custom and practice generally and specifically in regards to swim school operators and their workforce. The only other party to provide a submission on the issue (GA) notes the proposed wording may be unclear in how it extends to providers of gymnastic services.[87]

In later submissions dated 20 January 2017, the ASSA suggest that the award would be enhanced by the inclusion of a definition of ‘centres’ in Schedule G – Definitions in the following terms:

‘For the purposes of the Classification Definitions appearing in Schedule A – centres’ shall mean locations, organisations or activities, as listed in subclause 3.2 under the definition of fitness industry.’[88]

The ASSA also suggest the award would be enhanced by the incorporation of a new sub clause 3.4 in the following terms:

‘This award does not cover an employee who is employed by the employer to provide administrative and other operational support outside of fitness centres, group fitness organisations, weight loss/control centres, aquatic centres, indoor sports centres, golf driving ranges, dance centres, martial arts centres, recreational camps, tennis clubs and centres.’[89]

The ASSA submit the two proposed amendments would avoid uncertainty and ambiguity as to the intended coverage of the award, affirming the operational arrangements currently applying in the swim school sector.[90] Further, the amendments would not disadvantage any party, or unsettle clearly established award demarcations in other allied sectors. The ASSA submit the proposed amendments are consistent with requirements of s.134(a), (f) and (g) of the Modern Award Objectives in that:

· the need to operate under a multiplicity of awards would place a significant burden on organisations commonly found in this sector, which would ultimately see costs incurred flowing through to the consumer; and

· the Commission, in incorporating the proposed amendments to address deficiencies in the drafting of the award, would be applying principals articulated by Senior Deputy President Polites in Re. Public Service (Non Executive Staff – Victoria) (Section 170MX) Award 2000 to remedy a ‘state of not being definitely known or perfectly clear, doubtfulness or vagueness’.[91]

The ASSA’s proposed amendments are submitted on the basis they affirm current operational arrangements in the swim school sector. It is unclear as to whether this is also the case for gymnastics or any of the other activities coming within the definition of fitness industry in clause 3.2 but we note there has been no opposition to the ASSA’s proposal submitted to the Full Bench.

Having regard to these factors and noting the duties contained within the award’s classification definition, we are persuaded that the approach advocated by the ASSA is appropriate. We have had particular regard to sections 134(1)(f) and 134(1(g) of the Modern Awards Objective in coming to this conclusion and consider it desirable to avoid the administrative burden and potential confusion that could arise from having multiple awards applying in the fitness industry.

Rather than adopt the multiple amendments proposed by the ASSA, we propose to delete the word ‘fitness’ from clause 3.4 and insert a definition of ‘centre’ in Schedule G – Definitions as follows:
‘centre means a venue or location at which operations in the fitness industry are conducted.’

We otherwise propose to ensure that the definition of ‘fitness industry’ in both clause 3.2 and the Schedule G – Definitions is the same by amending Schedule G-Definitions.

Items 11A and 30 – Allowances for part-time employees

Clause 11.1 of the exposure draft provides that employers ‘…must pay to an employee the allowances the employee is entitled to under this clause’. There is no equivalent provision within the current modern award. Schedule C.1 of the exposure draft is a summary of wage related allowances, and is similar in content to the allowance sheet linked to the current modern award.

The ASSA submits that the following additional wording should be added prior to the first full stop in clause 11.1: ‘, provided that employees engaged under sub-clause 7.3 (as part-time), shall be paid all allowances on a pro-rate, hourly, basis’.[92] To ensure consistency between the provisions and to accommodate part-time employment, the ASSA suggest Schedule C.1 may need redrafting to facilitate payments of less than a ‘week’ or a ‘day’.[93] The ASSA claims the amendments address uncertainty about payment of allowances to part-time employees arising from the current form of clauses 7.3, 11.1 and Schedule C of the exposure draft. No other submissions have been received in relation to this specific proposal.

The issue of payment of allowances on a pro rata basis for other than full time employees was considered at item 5 of the revised summary of submissions. Item 5 arose from a submission of the ASSA that identified a conflict between clauses 7.3(a)(iii) and 11.1 of the exposure draft.[94] The ASSA contend the conflict is a potential source of confusion for employers of part-time staff in relation to the payment of allowances, as evidenced by conflicting views provided by the FWO on the matter. The ASSA therefore submit that the opening sentence in clause 11.1 should be amended to facilitate proportional payments of all allowances relating ‘work/wages’ on an hourly basis for other than full time employees. BusSA, ABI, and FA agreed with the ASSA’s submissions.[95]

In his report to the Full Bench dated 3 June 2016, Deputy President Clancy identified item 5 as an issue under consideration by the parties that may benefit from further discussions. Specifically, the Deputy President wrote that the ‘proposal to enable pro rata payment of allowances relating to work and wages on an hourly basis for other than full time employees generally agreed, save for the First-Aid Allowance’.

In the subsequent report to the Full Bench dated 25 August 2016, The Deputy President noted that the parties had reached agreement in relation to item 5 on the following bases:

‘As to Item 5, there was an agreement for the words “Employees engaged other than on a full-time basis under sub-clause 7.2 shall be paid pro rata the wage related allowances detailed in paragraph (a) Leading hands and supervisors” to be inserted after the first sentence in sub clause 11.1. There was also agreement to amend the words in sub clause 11.2(b) to “An employee, other than a casual engaged under sub-clause 7.4 (c ) (ii), working a rostered broken shift must be paid per day $12.24 extra and for excess fares and expense related allowance of $1.89 per day”.’

Item 11A of the revised summary of submissions appears to be an additional amendment proposed by the ASSA to that already agreed by the parties in relation to item 5.

We have had regard to the submissions of the parties and note the agreement of the parties reached in conference on 9 August 2016 in considering the payment of allowances to part time employees under clause 11. We consider it is appropriate that the weekly leading hands and supervisors allowance be payable to part time employees on a pro rata basis and that clause 11.1 be amended in the terms agreed.

Item 14A – Payment for working on a public holiday

Clause 18.3 of the exposure draft provides as follows:

‘A full-time or part-time employee must be paid at the rate of 250% of the minimum hourly rate for all hours worked on a public holiday. An employee required to work on a public holiday must be engaged or paid for at least four hours’ work at the rate of 250% of the minimum hourly rate.’ (emphasis added)

Clause 26.3(c) of the current modern award adopts similar language to provide the same entitlement.

The ASSA submit that the italicised words are repetitive in nature, serve no useful purpose, and simply replicate the intention of the first sentence.[96] The ASSA therefore suggest that clause 18.3 should be amended by inserting a full stop after ‘four hours’ work’ and removing the second reference to ‘at the rate of 250% of the minimum hourly rate’. No other submissions have been received in relation to this specific proposal.

We agree with the submission of the ASSA. The second ‘at the rate of 250% of the minimum hourly rate’ reference in clause 18.3 is not necessary for the clause to meet the modern awards objective and will be omitted.

Item 14B – Job search entitlement for casual employees

Clause 19.3 of the exposure draft confers an entitlement to employees for up to one day’s time off without loss of pay for the purpose of seeking other employment in circumstances where an employer has given notice of termination. The clause replicates clause 14.3 of the current modern award.

The ASSA submits the clause is ambiguous to the extent that it is unclear if the entitlement applies to casual employees.[97] The issue is of particular relevance to the swim school sector, which has a history of employing long-term casuals. The ASSA suggest the ambiguity be resolved by amending the clause to clearly specify if the entitlement applies/does not apply to casual employees. No other submissions have been received in relation to this specific proposal.

Clause 19.3 sits within the ‘Termination of employment’ clause of the Fitness award and it is stated that notice of termination is provided for in the NES, which in turn make it clear that the rights and obligations in relation to notice of termination of employment do not extend to casual employees. However, the job search entitlement in clause 19.3 is not a NES entitlement.

The ‘Termination of employment’ provisions are currently being considered as part of the plain language re-drafting process.[98] To avoid any drafting inconsistencies, this item will be referred to the plain language Full Bench for further consideration. Interested parties should consider the Full Bench’s decision regarding a model ‘Termination of employment’ clause[99] and the Statement and Directions regarding further submissions about that draft clause.[100]

Item 31 – 2016 Part-day Public Holidays

Schedule F of the exposure draft and Schedule E of the modern award, entitled ‘2016 Part-day Public Holidays’, operates where the award otherwise contains provisions dealing with public holidays that supplement the NES. The ASSA query if the provision is redundant.[101] We note this matter is being dealt with by the Public Holidays Common Issue Full Bench in AM2014/301 and do not propose to comment further.

Substantive issues

A number of other items from the revised summary of submissions remain in dispute. These items can be broadly categorised into two groups:

1. Entitlement of casual employees to overtime (items 6, 9, 10, 11, 11B, 11C and 29); and
2. Classification definitions for the swim industry (items 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, and 28).

In relation to the first category, a report back by the parties dated 30 May 2016 identified this issue as an area of dispute on which it is unlikely the parties will come to an agreement. In the Report to the Full Bench dated 25 August 2016, Deputy President Clancy noted that the parties were committed to conducting a teleconference to discuss the issues further and would provide a report back by close of business on 29 August 2016. The AWU subsequently provided a report to the Commission which noted the parties remained in dispute, and suggested the matter was a substantive one that should be subject to comprehensive submissions by the parties if arbitrated. In accordance with Directions dated 14 December 2016, submissions have been received by interested parties on the issue.

In relation to the second category of disputed items, Directions were issued on 7 February 2017 requiring parties to file further material in relation to classification descriptions for swimming coaches. Submissions have been received from:
· The Australian Workers’ Union;

· Australian Swim Schools Association;

· Australian Swimming Coaches and Teachers Association; and

· Australian Business Industrial and the NSW Business Chamber.

Pursuant to the Directions issued on 14 December 2016, outstanding matters would be determined by the Full Bench on the basis of the material filed without an oral hearing unless so requested. However, on 7 February 2017 the AWU requested a hearing in regards to the two broad categories of dispute. In light of the nature of the dispute, the material received, and the AWU’s request, we consider both categories of disputed items require determination by a separately constituted Full Bench.

There are no other outstanding matters for this Full Bench to determine in relation to the Fitness Award.

2.6 Gardening and Landscaping Services Award 2010

On 15 January 2016 the Commission published an initial exposure draft based on the Gardening and Landscaping Services Award 2010[102] (Gardening Award), together with a comparison document showing the changes to the structure and language of the award. Interested parties were invited to file submissions about drafting or technical issues in the exposure draft. Submissions were received from the AWU, ABI, AFEI, and Business SA. A conference was held on 30 May 2016 and was attended by representatives from those organisations.

Deputy President Clancy published a report to the Full Bench on 3 June 2016 that set out a number of agreed variations to the exposure draft, a number of variations that were not agreed and a list of items from the submissions that would be the subject of further discussions between the interested parties. The report also noted that a number of items were withdrawn at the conference or were being considered by a separately constituted Full Bench of the Commission.

A further conference was held on 9 August 2016 to deal with the outstanding issues. Deputy President Clancy provided a second report to the Full Bench on 25 August 2016. It noted that further consideration by the parties in relation to most of the outstanding items, which include the entitlement to overtime payments for casual employees, was required.

Directions were issued on 14 December 2016 and parties were required to file further material in January and February 2017. No further submissions have been received in response to the directions. A further updated summary of submissions was published on 10 October 2017. The Full Bench intends to determine the outstanding technical and drafting matters on the basis of material provided to date.

Items 2 and 20, regarding overtime, remain unresolved. If the parties wish to pursue a variation to existing overtime provisions they may do so by making submissions to that effect by 4.00pm Friday, 24 November 2017.

We agree that item 4, regarding part-time employees, represents a substantive change to the existing part-time employment clause. On that basis, we will amend the exposure draft to re-instate the words “regular part-time employee”.

Item 5, regarding part-time employees, was ultimately unopposed. The reference to “minimum hourly rate” in clause 6.4(c) of the exposure draft will be replaced with “ordinary hourly rate”.

Item 11, regarding rest breaks, represents a substantive change to the existing award provision. AWU’s initial submission proposed adding in the words “or shift” to the clause however that was opposed on the grounds that the award did not include shift provisions. The employer parties have not responded to the AWU’s alternate proposal which was:

9.3Employees will be allowed a paid rest break of 10 minutes each morning or at an appropriate time if water restrictions are in place.

AWU’s initial submission was that some provision needed to exist for circumstances where employees worked outside the normal span of hours due to water restrictions. Business SA initially objected on the grounds that “shift” was an undefined term. ABI objected on the grounds that introducing the term “shift” expanded the entitlement to a paid rest break.

Given AWU’s amended proposal does not use the term “shift” and would only apply in limited circumstances where water restrictions are in place we are minded to adopt the amendment. Clause 9.3 of the exposure draft will be varied accordingly.

Item 16 was debated between the parties. Clause 15.1 of the current modern award (replicated in clause 11.3(a) of the exposure draft) states that the leading hand allowance is paid in addition to any other wage specified for the employee. The parties disagreed about whether the leading hand allowance is an all purpose allowance. The first Group 3 Decision identified the allowance as an all purpose allowance.[103]

We do not intend to deviate from the view expressed in our previous decision.

Parties were encouraged to have further discussions about item 19, regarding rest periods after overtime duty. Parties have not provided an agreed position for the Full Bench to consider. The exposure draft reflects the wording of the current modern award. In the absence of any alternate proposal, the exposure draft will not be varied.

In item 23, the AWU submitted that Schedule B of the exposure draft should provide rates for casuals performing overtime. Generally, overtime rates for casuals have not been provided in the schedules of hourly rates however, as the parties have indicated that it would be of assistance, the Commission’s research area will prepare rates and add them to the revised exposure draft for interested parties to consider. The rates will be prepared having regard to the AWU’s draft.[104]

To avoid any confusion, the overtime rate for casuals will be calculated by adding the overtime loading to the casual loading. The overtime loading is not paid instead of the casual loading. The casual overtime rates will be calculated according to the following formulas:

Monday to Sunday		Public Holiday
Monday to Sunday		Public Holiday	First 2 hours	After first 2 hours	All overtime hours
Minimum hourly rate + (25% + 50%)	Minimum hourly rate + (25% + 100%)	Minimum hourly rate + (25% + 150%)

There are no other outstanding matters for this Full Bench to determine in relation to the Gardening Award.

2.7 Horticulture Award 2010

On 15 January 2016 the Commission published an exposure draft based on the Horticulture Award 2010[105] (Horticulture Award), together with a comparison document showing the changes to the structure and language of the award. Interested parties were invited to file submissions about drafting or technical issues in the exposure draft. Submissions were received from the AWU, ABI, AFEI, Ai Group, the NFF, the VOH and Business SA. A conference was held on 1 June 2016. With the exception of the VOH, it was attended by representatives for those organisations. The NUW also participated.

Deputy President Clancy published a report to the Full Bench on 3 June 2016 that set out a number of the proposed variations to the exposure draft that were agreed, a number that were not agreed and a list of items from the submissions that would be the subject of further discussions between the interested parties. The report also noted that a number of items were withdrawn at the conference and others were being considered by or suggested for referral to separately constituted Full Benches of the Commission.

A further conference was held on 8 August 2016 to deal with the outstanding issues. It was attended by representatives of the AWU, AFEI, Ai Group, NFF, UV, South Australian Wine Industry Association and VOH. A second report to the Full Bench was issued by Deputy President Clancy on 25 August 2016. That report set out the proposed variations to the exposure draft that were agreed, nine issues (some 10 items) that were not agreed and two issues that were being considered by separately constituted Full Benches of the Commission. Further hearings in relation to the substantive claims have been listed in mid-2017.

Parties should refer to the Deputy President’s second report to the Full Bench to identify which issues are being dealt with by a separately constituted Full Bench. We do not propose to list them in this decision.

A further updated summary of submissions was published on 10 October 2017. We turn now to the remaining unresolved issues.

Item 53 – Definition of ‘wine industry’

As noted in the Deputy President’s second report to the Full Bench Ai Group indicated it may vary its position after having the benefit of reviewing an analysis of the definition of ‘wine industry’ as it appears in this award and in other awards. The analysis was to be published by the Commission’s research team.

A subsequent review of the definition of ‘wine industry’ reveals that it is defined in the same terms in the Wine Industry Award 2010 and the Pastoral Award 2010, with the Commission having previously formed the view that consistency should be maintained between modern awards wherever possible.[106] The definition of wine industry in the exposure draft of the Horticulture Award 2016 differs from these awards in minor respects, in that it does not include ‘the planting of wine grape vines’ and it describes ‘laboratory activities and making or repairing barrels, vats, casks and like articles’ in marginally different terms. As to other ‘agricultural awards’, there is no definition of ‘wine industry’ in the Aquaculture Industry Award 2010, the Seafood Processing Award 2010, the Silviculture Award 2010 or the Sugar Industry Award 2010.

Having regard to these factors, we do not consider there would be any unintended substantive changes to Award coverage if we were to amend the exposure draft so that the definition of ‘wine industry’ matches the definition used in both the Wine Industry Award 2010 and the Pastoral Award 2010.

We now turn to the issues that involve a consideration of whether the term ‘ordinary hourly rate’ should be used as opposed to ‘minimum hourly rate’ and vice versa.

Item 12 – Part-time employees

Ai Group proposes replacing the words ‘ordinary hourly rate’ in clause 6.4(b) of the exposure draft with the words ‘minimum hourly rate’. Clause 6.4(b) is in the following terms:

‘(b) For each ordinary hour worked, a part-time employee will be paid no less than the ordinary hourly rate for the relevant classification in clause 10—Minimum wages.’ (emphasis added)

Ai Group submits (with support from Business SA[107] and VOH[108]) that the reference in clause 6.4(b) to ‘ordinary hourly rate’ and the cross reference to clause 10 is confusing because clause 10 does not include any ordinary hourly rates.[109] Further, at the 8 August 2016 conference before Deputy President Clancy, Ai Group submitted that it had reviewed the earlier Full Bench decision[110] that was said to address the issue and was unsure that ‘the decision resolves this particular issue’.[111] The AFEI does not oppose the changes proposed by Ai Group.[112]

The NFF supports the Ai Group position and expresses a preference for maintaining the status quo, that is, to return to the use of the word ‘minimum’ as opposed to ‘ordinary’.[113] It submits that clause 6.4(b) should be consistent with clause 10 which deals with minimum rates of pay not ordinary rates of pay.[114]

The AWU is opposed to any change and submits that the exposure draft terminology is consistent with the earlier Full Bench decision[115] concerning the inclusion of ordinary hourly rates for awards with an all purpose allowance.[116] Further, the AWU submits that the purpose of the cross reference to clause 10 is to provide employees with their applicable classification to then work out their ordinary hourly rate.[117]

We agree with the AWU. For awards where all purpose allowances(s) only apply to some employees, as is the case with the Horticulture Award 2010, the use of the term ‘ordinary hourly rate’ is used to make it clear that any all purpose allowance(s) need to be added to the minimum rate of pay before calculating any penalty rate. The July 2015 decision determined this issue:

‘Definitions of ordinary rate of pay have been inserted in the exposure drafts that include an allowance or loading that is payable for “all purposes” along the following lines (depending on the application of the all purpose allowances):

All purpose provisions

Ordinary hourly rate definition

Only all purpose allowance is an industry allowance applying to all employees

ordinary hourly rate means the hourly rate for an employee’s classification specified in clause X.1, inclusive of the industry allowance

All purpose allowance(s) only applying to some employees

ordinary hourly rate means the hourly rate for the employee’s classification specified in clause X, plus any allowances specified as being included in the employee’s ordinary hourly rate or payable for all purposes

Industry allowance applying to all employees for all purposes and other all purpose allowance(s) only applying to some employees

ordinary hourly rate means the hourly rate for an employee’s classification specified in clause X, inclusive of the industry allowance. Where an employee is entitled to an additional all purpose allowance, this allowance forms part of that employee’s ordinary hourly rate

The term ‘ordinary hourly rate’ has been used in contrast to ‘minimum hourly rate’ in affected awards to make it clear that all purpose allowances must be added to the minimum rate of pay before calculating any penalty rate.’[118]

Further, we agree with the AWU in that the reference to clause 10 provides parties with a signpost to their appropriate classification from which they can then determine what their ordinary rate of pay will be. Nevertheless we appreciate Ai Group’s concern. We propose to adopt a similar approach to that taken for the Business Equipment Award 2010 and discussed at greater length in the July 2017 decision. The definition for ‘ordinary hourly rate’ in this award is as follows:

·the employee’s ordinary time rate of pay for the ordinary hours the employee would have worked on the roster plus a loading of 17.5%.

As the issues identified are not confined to the Group 3 awards they will be referred to the Plain Language Full Bench for determination.

Other references in exposure drafts

We expressed a view in the July 2017 Decision that a consistent approach to the references to shift penalties is appropriate. We believe, as a general proposition, that where an award no longer contains separately identified shiftwork loadings, that it is desirable for penalty rates to be referred to as “penalty rates”, “shiftwork penalties” “shift penalties” or “shift rates”. There may, however, be instances where it is appropriate in the context of a particular provision to refer to a separately identified penalty “loading” or “allowance”. As this issue is not confined to the Group 3 awards it will also be referred to the Plain Language Full Bench for determination.

Next steps

Submissions are to be emailed to [email protected] by the date specified in each section above.

PRESIDENT

ATTACHMENT A—List of Group 3 awards by subgroup

Award code		Award title	Matter No.
Sub-group 3A
MA000019	Banking, Finance and Insurance Award 2010		AM2014/217
MA000021	Business Equipment Award 2010		AM2014/218
MA000002	Clerks Private Sector Award 2010		AM2014/219
MA000083	Commercial Sales Award 2010		AM2014/221
MA000023	Contract Call Centres Award 2010		AM2014/222
MA000094	Fitness Industry Award 2010		AM2014/227
MA000099	Labour Market Assistance Industry Award 2010		AM2014/232
MA000116	Legal Services Award 2010		AM2014/233
MA000030	Market and Social Research Award 2010		AM2014/236
MA000104	Miscellaneous Award 2010		AM2014/237
MA000106	Real Estate Industry 2010		AM2014/242
MA000082	Sporting Organisations Award 2010		AM2014/245
MA000041	Telecommunications Services Award 2010		AM2014/248
Sub-group 3B
MA000075	Educational Services (Post-Secondary Education) Award 2010		AM2014/224
MA000076	Educational Services (Schools) General Staff Award 2010		AM2014/225
MA000006	Higher Education—Academic Staff Award 2010		AM2014/229
MA000007	Higher Education—General Staff Award 2010		AM2014/230
MA000112	Local Government Industry Award 2010		AM2014/234
MA000121	State Government Agencies Administration Award 2010		AM2014/246
Sub-group 3C
MA000045	Coal Export Terminals Award 2010		AM2014/220
MA000085	Dredging Industry Award 2010		AM2014/223
MA000088	Electrical Power Industry Award 2010		AM2014/226
MA000050	Marine Towage Award 2010		AM2014/235
MA000051	Port Authorities Award 2010		AM2014/240
MA000052	Ports, Harbours and Enclosed Water Vessels Award 2010		AM2014/241
MA000122	Seagoing Industry Award 2010		AM2014/243
Sub-group 3D
MA000101	Gardening and Landscaping Services Award 2010		AM2014/228
MA000028	Horticulture Award 2010		AM2014/231
MA000033	Nursery Award 2010		AM2014/238
MA000035	Pastoral Award 2010		AM2014/239
MA000040	Silviculture Award 2010		AM2014/244
MA000087	Sugar Industry Award 2010		AM2014/247
MA000090	Wine Industry Award 2010		AM2014/249

ATTACHMENT B

Awards that have been identified that may have an issue with the interaction between the annual leave loading and the penalty rates provisions in the exposure draft

Aboriginal Community Controlled Health Services Award 2010

Aged Care Award 2010

Airport Employees Award 2010

Animal Care and Veterinary Services Award 2010

Asphalt Industry Award 2010

Banking, Finance and Insurance Award 2010

Black Coal Mining Industry Award 2010

Building and Construction General On-site Award 2010

Business Equipment Award 2010

Car Parking Award 2010

Cement and Lime Award 2010

Cleaning Services Award 2010

Clerks - Private Sector Award 2010

Coal Export Terminals Award 2010

Concrete Products Award 2010

Contract Call Centres Award 2010

Dry Cleaning and Laundry Industry Award 2010

Educational Services (Post-Secondary Education) Award 2010

Educational Services (Schools) General Staff Award 2010

Educational Services (Teachers) Award 2010

Electrical Power Industry Award 2010

Electrical, Electronic and Communications Contracting Award 2010

Fast Food Industry Award 2010

Food, Beverage and Tobacco Manufacturing Award 2010

Gas Industry Award 2010

General Retail Industry Award 2010

Graphic Arts, Printing and Publishing Award 2010

Hair and Beauty Industry Award 2010

Health Professionals and Support Services Award 2010

Higher Education Industry-General Staff-Award 2010

Joinery and Building Trades Award 2010

Legal Services Award 2010

Manufacturing and Associated Industries and Occupations Award 2010

Meat Industry Award 2010

Medical Practitioners Award 2010

Miscellaneous Award 2010

Mobile Crane Hiring Award 2010

Nurses Award 2010

Pastoral Award 2010

Pest Control Industry Award 2010

Pharmaceutical Industry Award 2010

Pharmacy Industry Award 2010

Poultry Processing Award 2010

Premixed Concrete Award 2010

Quarrying Award 2010

Road Transport and Distribution Award 2010

Seafood Processing Award 2010

Social, Community, Home Care and Disability Services Industry Award 2010

Storage Services and Wholesale Award 2010

Sugar Industry Award 2010

Telecommunications Services Award 2010

Textile, Clothing, Footwear and Associated Industries Award 2010

Timber Industry Award 2010

Vehicle Manufacturing, Repair, Services and Retail Award 2010

Waste Management Award 2010

Wine Industry Award 2010

ATTACHMENT C

Awards identified that do not appear to have an issue with the interaction between the annual leave loading clause and penalty rates provisions in the exposure draft

Air Pilots Award 2010

Airline Operations—Ground Staff Award 2010

Aluminium Industry Award 2010

Hydrocarbons Industry (Upstream) Award 2010

Mining Industry Award 2010

Oil Refining and Manufacturing Award 2010

Ports, Harbours and Enclosed Water Vessels Award 2010

Security Services Industry Award 2010

Transport (Cash in Transit) Award 2010

[1] [2015] FWCFB 3023

[2] [2016] FWC 4756

[3] MA000002

[4] [2016] FWCFB 5621 at para [14]

[5] [2016] FWCFB 7967

[6] Transcript, 15 September 2017

[7] MA000085

[8] See Statement [2016] FWC 1838 (attaching Amended Directions)

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

[10] AWU, submission – exposure draft, 18 April 2016

[11] Transcript, 6 June 2016

[12] Transcript, 4 August 2016

[13] [2016] FWC 7768

[14] Transcript, 4 August 2016 at PN16–329

[15] AWU submission – exposure draft, 18 April 2016 at para 8

[16] Dredging International Contract Dredging (Non-Propelled Dredges, AWU) Enterprise Agreement 2012 (AE898287); Great Lakes Contract Dredging (Non-Propelled Dredges, AWU) Greenfields Agreement 2013 (AE400157); Van Oord Australia Contract Dredging (Non- Propelled Dredges) AWU Enterprise Agreement 2011 (AE897529)

[17] MA000010

[18] MA000026

[19] [2017] FWCFB 3135

[20] AP778702; AP788027; AP787991

[21] AWU submission, 18 April 2016 at para 10

[22] MA000045, at clause 16

[23] Transcript, 4 August 2016 at PN52–PN93

[24] Transcript, 4 August 2016 at PN94–PN134

[25] FWO correspondence, 2 March 2015

[26] Dredging Award exposure draft, 15 January 2016

[27] MUA submission, 9 April 2016, citing AP787991

[28] MUA submission – exposure draft, 14 April 2016 at para 5

[29] AWU, submission – exposure draft, 18 April 2016 at para 20

[30] Fair Work Commission, correspondence, 7 October 2016

[31] MUA, submission – aggregate wage calculation, 17 October 2016

[32] AWU submission – exposure draft, 18 April 2016 at para 21

[33] Research regarding item 13 of submission summary, published 8 November 2016

[34] AWU, submission – exposure draft, 18 April 2016 at para 25

[35] Transcript, 4 August 2016 at PN163–PN184

[36] Listed in Attachment B of [2017] FWCFB 3433

[37] AWU, submission – exposure draft, 18 April 2016 at para 27

[38] Transcript, 4 August 2016 at PN216–PN228

[39] AWU, submission – exposure draft, 18 April 2016 at para 27

[40] AWU, submission – exposure draft, 18 April 2016 at para 29

[41] MA000078

[42] MA000092

[43] AWU, Form F46 – application to vary a modern award, 8 March 2012

[44] Transcript, 4 August 2016 at PN245 –PN262

[45] [2013] FWCFB 6266, at para [108]

[46] [2013] FWCFB 6266, at para [220]

[47] AP778702; AP788027; AP787991

[48] AWU submission, 15 February 2013

[49] AWU submission, 15 February 2013

[50] MA000051

[51] MA000122

[52] MA000086

[53] MUA submission, 14 April 2016 at para 10

[54] AWU submission in reply, 5 May 2016 at para 9

[55] Transcript, 4 August 2016 at PN263 –PN266

[56] AWU, submission – exposure draft, 18 April 2016 at para 22

[57] MA000075

[58] Transcript, 10 May 2016

[59] [2015] FWC 7253

[60] NTEU, submission, 8 June 2016

[61] NTEU, submission, 8 June 2016

[62] Go8, submission, 10 June 2016

[63] NTEU, submission, 8 June 2016

[64] Go8, submission, 10 June 2016

[65] [2017] FWCFB 3433

[66] [2017] FWCFB 3433 at PN57 and PN62

[67] NTEU, submission, 28 July 2017

[68] MA000076

[69] [2015] FWC 7253

[70] PR575283

[71] Transcript, 7 June 2016 at PN137-139

[72] Transcript, 7 June 2016 at PN137-139

[73] AIS and IEU, submission, 14 April 2016 at para 6

[74] AFEI, submission in reply, 9 May 2016 at para 28

[75] Transcript, 7 June 2016 at PN81 – PN88

[76] AIS and IEU, submission, 14 April 2017 at para 9

[77] AFEI, submission in reply, 9 May 2016 at para 29

[78] ABI and NSWBC, submission, 15 April 2016 at para 15.2

[79] AIS and IEU, reply submission, 5 May 2016 at para 13

[80] AFEI, submission in reply, 6 May 2016 at para 30

[81] AFEI, submission – exposure draft, 15 April 2016 at para 14

[82] AFEI, submission – exposure draft, 15 April 2016 at para 15

[83] AFEI, submission, 15 April 2016 at paras 14-16

[84] AIS and IEU, submission in reply 5 May 2016 at para 4

[85] MA000094

[86] ASSA, submission, 4 August 2016 at pp. 1-2; ASSA, submission, 20 January 2017 at para 8.2.4

[87] GA, submission, 10 January 2017 at para 5

[88] ASSA, submission, 20 January 2017 at para 4

[89] ASSA, submission, 20 January 2017 at para 8.2.4

[90] ASSA, submission, 20 January 2017 at para 8.2.4

[91] P1748 V001 M Print T3721, 24 Nov 2000, at p.2

[92] ASSA, submission, 22 December 2016 at p.2 and p.6

[93] ASSA, submission, 22 December 2016 at p.5

[94] ASSA, submission, 7 March 2016 at pp.1-2

[95] BusSA reply submission, 6 May 2016 at para 6.1; ABI&NSWBC reply submission, 6 May 2016 at para 8.5; FA submission, 26 May 2016 at para 2.10

[96] ASSA, submission, 4 August 2016 at p.2

[97] ASSA, submission, 4 August 2016 at p.2

[98] AM2016/15 – Plain language re-drafting

[99] [2017] FWCFB 5258

[100] [2017] FWCFB 5367

[101] ASSA, submission, 22 December 2016 at p.6

[102] MA000101

[103] [2017] FWCFB 3433, at Attachment B

[104] AWU correspondence, 9 August 2016

[105] MA000028

[106] [2013] FWC 9543 at [66]

[107] Business SA, submission in reply, 6 May 2016 at 8.3

[108] VOH, submission in reply – exposure drafts, 5 May 2016 at pp 2–3

[109] Ai Group, submission – exposure drafts at para 319; also see Transcript, 8 August 2016 at PN560–570

[110] [2015] FWCFB 4658

[111] Transcript, 8 August 2016 at PN558

[112] Transcript, 8 August 2016 at PN576

[113] Transcript, 8 August 2016 at PN574

[114] Transcript, 8 August 2016 at PN574

[115] [2015] FWCFB 4658

[116] Transcript, 8 August 2016 at PN572

[117] Transcript, 8 August 2016 at PN572

[118] [2015] FWCFB 4658 at paras 42–43

[119] Ai Group, submission – exposure drafts, at para 320–321

[120] Business SA, submission in reply – exposure drafts at 8.3

[121] VOH, submission in reply – exposure draft at p 3

[122] Transcript, 8 August 2016 at PN577–581

[123] [2015] FWCFB 4658 at paras 69–70

[124] [2015] FWCFB 6656 at paras 107–110

[125] Ai Group, submission – exposure drafts, 14 April 2016 at paras 327–328

[126] Transcript, 8 August 2016 at PN614

[127] Transcript, 8 August 2016 at PN618–620

[128] [2008] AIRCFB 1000

[129] Ai Group, submission – general issues arising from exposure drafts, 31 August 2016 at para 5

[130] FWO, correspondence, 2 March 2015 at item 19

[131] Transcript, 8 August 2016 at PN583–587

[132] Transcript, 8 August 2016 at PN589

[133] Transcript, 8 August 2016 at PN591

[134] NFF, further submission – exposure draft, 15 August 2016

[135] See discussion in Transcript, 8 August 2016 at PN 673–681

[136] Transcript, 8 August 2016 at PN624

[137] Ai Group, submission – exposure draft, 14 April 2016 at para 329

[138] AWU, submission – exposure draft, 17 April 2016 at para 9

[139] Transcript, 8 August 2016 at PN622–626

[140] AWU, submission – exposure draft, 17 April 2016 at para 10

[141] Business SA, submission in reply – exposure draft, 6 May 2016 at 8.11

[142] NFF, submission in reply – exposure draft, 5 May 2016 at 21

[143] Ai Group, submission in reply – exposure drafts, 8 May 2016 at para 165

[144] Ai Group, submission in reply – exposure drafts, 8 May 2016 at paras 166–168

[145] NFF, submission – pieceworkers, 5 August 2016

[146] NFF, submission – pieceworkers, 5 August 2016

[147] Transcript, 8 August 2016 at PN 638

[148] Ai Group, correspondence – outstanding issues, 24 August 2016

[149] Ai Group, correspondence – outstanding issues, 24 August 2016

[150] Transcript, 8 August 2016 at PN 640–646

[151] ASU, submission, 20 December 2016

[152] Clerks – Private Sector Award 2010 - clause 26.2(a)

[153] Law firms submission, 29 August 2016

[154] MA000033

[155] [2017] FWCFB 3541

[156] Ai Group submission, 31 August 2016 at paras 5 & 6

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

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

[159] [2017] FWCFB 3433 at [141] – [147]

[160] Notice of Listing – issued 14 July 2017

[161] Statement [2017] FWC 3883 at [4]

[162] Ibid

[163] AWU submission – exposure draft, 17 April 2016 at 13

[164] [2017] FWCFB 3433 at [178]

[165] NFF submission – first aid allowance, 4 August 2017

[166] SCAA submission – group 3 decision – first aid allowance, 4 August 2017 at 1(i)

[167] Ibid at 1(ii)

[168] Business SA submission – group 3 decision – all purpose allowances – occupational health and safety – Pastoral Award, 4 August 2017 at 2.2-2.3

[169] ABI and NSWBC – submission – group 3 decision – revised exposure draft – first aid and meal allowances, 15 August 2017 at 6

[170] Ibid at 7

[171] Ibid at 9

[172] NFF submission – outstanding claims, 26 October 2016 at para 40

[173] NFF submission – outstanding claims, 26 October 2016 at para 42

[174] [2017] FWCFB 3433 at [206]-[207

[175] AWU submission in reply – exposure draft, 23 November 2016 at para 12

[176] [2017] FWCFB 3433 at [210]

[177] NFF and AWU joint paper – exposure draft – rates schedules, 31 July 2017

[178] NFF and AWU joint paper – exposure draft – rates schedules, 31 July 2017 page 2

[179] AWU submission – exposure draft, 17 April 2016 at 48

[180] [2017] FWCFB 3433 at [277]

[181] AWU submission, 26 July 2017

[182] [2017] FWCFB 3433

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[200] MA000040

[201] NFF submission, 9 June 2016, para 13

[202] Transcript, 8 August 2016, PN39

[203] Transcript, 8 August 2016, PN40

[204] AWU submission, 18 January 2017, at para 3.3

[205] NFF submission, 9 June 2017, at para 22

[206] AN170096. Part V, cl 2

[207] AWU submission, 17 April 2016, at para 11

[208] NFF submission, 9 June 2016, at para 23

[209] Transcript, 8 August 2016, PN114-PN117

[210] NFF submission, 7 February 2017, at para 19

[211] NFF submission, 9 June 2016, at para 24

[212] AWU submission, 17 April 2016, at para 14

[213] NFF submission, 20 January 2017, para 12

[214] AWU submission, 9 February 2017, para 3

[215] NFF submission, 9 June 2016, para 35

[216] AN170096, Part IV, clause 1(f)

[217] NFF submission, 20 January 2017 , at para 22

[218] AWU submission, 17 April 2016, at para 18

[219] AN170096, Part III clause 6(c)

[220] AN170096, Part VII clause 1

[221] [2008] AIRCFB 717 at para [19]

[222] AWU submission, 17 April 2016, at para 22

[223] NFF submission, 20 January 2017 , at paras 43 - 45

[224] NFF submission, 7 February 2017, at para 31

[225] NFF submission, 7 February 2017, at para 31

[226] AN170096, Part V clause 6(h)

[227] NFF submission, 7 February 2017, at para 33

[228] [2008] AIRCFB 1000, at para [95]

[229] AWU submission, 17 April 2016, at para 26

[230] AWU submission, 9 February 2017, para 4, subpara 1.3

[231] AN170096, Part V clause 7

[232] T8584

[233] [2017] FWCFB 3433, at para [351]

[234] [2017] FWCFB 3433, at para [339]

[235] MA000082

[236] Report to Full Bench, 3 June 2016

[237] NFF submission, 14 April 2016, para 18

[238] [2014] FWCFB 9412 at [29]

[239] Report to Full Bench, 3 June 2016 at Annexure C

[240] NFF Submission, 14 April 2016 at para 26

[241] AMWU submission in reply, 5 May 2016 at page 3

[242] Ai Group submission in reply, 5 May 2016 at paras 284–285

[243] AWU submission, 21 July 2016 at paras 24–25

[244] NFF submission, 14 April 2016 at paras 27–28

[245] [2014] FWCFB 9412 at [37]–[43]

[246] NFF submission, 14 April 2016 at paras 36–38

[247] Report to Full Bench, 3 June 2016 at Annexure B

[248] VOCEDplus, accessed 11 January 2017

[249] Scseec, accessed 11 January 2017

[250] FWO correspondence, 2 March 2015, item 36

[251] AWU submissions, 21 July 2016 para 12

[252] AWU submissions, 21 July 2016 para 11-13

[253] AWU submission, 17 April 2016 at para 33

[254] AWU submission, 21 July 2016 at para 3

[255] AWU submission, 21 July 2016 at para 7

[256] ASMC submission, 5 August 2016

[257] NFF submission, 8 July 2016

[258] NFF submission, 8 July 2016

[259] AWU submissions, 21 July 2016, para 18–21

[260] Report to Full Bench, 3 June 2016 at Annexure C

[261] Report to Full Bench, 3 June 2016 at Annexure C

[262] Ai Group submission, 14 April 2016, para 438

[263] NFF Submissions, 14 April 2016, para 44-45

[264] AWU submissions in reply, 6 May 2016, paras 24-25

[265] AWU submissions, 21 July 2016, paras 26-29

[266] AWU submissions, 21 July 2016, para 30

[267] AWU submissions, 21 July 2016, para 31

[268] ASMC submission, 5 August 2016

[269] AWU submissions, 21 July 2016, para 32

[270] Ai Group submission, 31 August 2016 at para 9

[271] Ai Group submission, 31 August 2016 at para 42

[272] AWU submission, 17 April 2016, para 36

[273] Report to Full Bench, 3 June 2016 at Annexure C

[274] [2009] AIRCFB 100 and [2009] AIRCFB 826

[275] FWO submission, 2 March 2015 at page 11

[276] AMWU submissions, 2 March 2015 at para 3

[277] [2013] FWCFB 9295 at [14]–[16]

[278] [2013] FWCFB 9295 at [17]

[279] AMWU submission, 22 July 2016 at para 5

[280] MA000090

[281] Items 41, 47, 48, 51, 61, 63, 64, 66, 67, 68, 69 and 76 have been referred to separately constituted Full Benches of the Commission

[282] [2017] FWCFB 4174

[283] [2015] FWCFB 4658 at [96]

[284] Ai Group submission, 3 February 2017, at para 4

[285] Ai Group submission, 3 February 2017 at para 38

[286] [2017] FWCFB 3177

[287] Ibid at [76]-[78]

[288] SAWIA submission, 5 August 2016

[289] AWU submission, 18 January 2017

[290] Ai Group submission, 31 August 2016

[291] Ai Group submission, 31 August 2016, para 10

[292] MA000023

[293] MA000052

Printed by authority of the Commonwealth Government Printer

All purpose provisions	Ordinary hourly rate definition
Only all purpose allowance is an industry allowance applying to all employees	ordinary hourly rate means the hourly rate for an employee’s classification specified in clause X.1, inclusive of the industry allowance
All purpose allowance(s) only applying to some employees	ordinary hourly rate means the hourly rate for the employee’s classification specified in clause X, plus any allowances specified as being included in the employee’s ordinary hourly rate or payable for all purposes
Industry allowance applying to all employees for all purposes and other all purpose allowance(s) only applying to some employees	ordinary hourly rate means the hourly rate for an employee’s classification specified in clause X, inclusive of the industry allowance. Where an employee is entitled to an additional all purpose allowance, this allowance forms part of that employee’s ordinary hourly rate