| [2017] FWCFB 3541 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.156 - 4 yearly review of modern awards
(AM2014/196 and AM2014/197)
VICE PRESIDENT HATCHER | SYDNEY, 5 JULY 2017 |
4 yearly review of modern awards – Part-time employment and Casual employment.
Contents
1. INTRODUCTION AND STATUTORY FRAMEWORK
2. HISTORY AND NATURE OF CASUAL AND PART-TIME EMPLOYMENT
3. COMMON CLAIMS
4. HOSPITALITY AWARDS
5. SCHCDSI AWARD AND AGED CARE AWARD
6. RETAIL, FAST FOOD AND HAIR AND BEAUTY AWARDS
7. HORTICULTURE, PASTORAL AND WINE INDUSTRY AWARDS
8. ROAD TRANSPORT AWARDS
9. BUILDING AND CONSTRUCTION AWARDS
10. BLACK COAL MINING INDUSTRY AWARD
11. RAIL INDUSTRY AWARD
12. LEGAL SERVICES AWARD
13. NEXT STEPS – DIRECTIONS
ATTACHMENT A
ATTACHMENT B
ATTACHMENT C
ATTACHMENT D
ATTACHMENT E
ATTACHMENT F
ATTACHMENT G
ABBREVIATIONS
AAA | The Accommodation Association of Australia |
ABI | Australian Business Industrial |
ABS | Australian Bureau of Statistics |
ACA | Australian Childcare Alliance |
ACCI | Australian Chamber of Commerce and Industry |
ACTU | Australian Council of Trade Unions |
AFEI | Australian Federation of Employers and Industries |
Aged Care Award | Aged Care Award 2010 |
AHA | Australian Hotels Association |
AHEIA | Australian Higher Education Industrial Association |
Ai Group | Australian Industry Group |
AIRC | Australian Industrial Relations Commission |
AMIC | Australian Meat Industry Council |
AMWU | Australian Manufacturing Workers’ Union |
ANMF | Australian Nursing and Midwifery Federation |
APESMA | The Association of Professional Engineers, Scientists and Managers, Australia |
APTIA | Australian Public Transport Industrial Association |
ARA | Australian Retailers Association |
ASU | Australian Municipal, Administrative, Clerical and Services Union |
AWU | The Australian Workers’ Union |
Black Coal Award | Black Coal Mining Industry Award 2010 |
Building Award | Building and Construction General On-site Award 2010 |
Bus Award | Passenger Vehicle Transportation Award 2010 |
CAI | Clubs Australia Industrial |
CFMEU | Construction, Forestry, Mining and Energy Union |
CMIEG | Coal Mining Industry Employer Group |
Clerks Award | Clerks – Private Sector Award 2010 |
Clubs Award | Registered and Licensed Clubs Award 2010 |
Commission | Fair Work Commission |
Fast Food Award | Fast Food Industry Award 2010 |
Federal Court | Federal Court of Australia |
FILRI | Fraser Institute Labour Regulation Index |
Food and Beverage Award | Food, Beverage and Tobacco Manufacturing Award 2010 |
FW Act | Fair Work Act 2009 (Cth) |
FWA | Fair Work Australia |
FWO | Fair Work Ombudsman |
Graphic Arts Award | Graphic Arts, Printing and Publishing Award 2010 |
Group of 8 Universities | University of Western Australia, University of Adelaide, University of Melbourne, Monash University, Australian National University, University of New South Wales, University of Sydney and University of Queensland |
HABA | Hair and Beauty Australia |
Hair and Beauty Award | Hair and Beauty Industry Award 2010 |
Health Professionals Award | Health Professionals and Support Services Award 2010 |
HIA | Housing Industry Association |
High Court | High Court of Australia |
Higher Education Award | Higher Education Industry—General Staff—Award 2010 |
HILDA | Household, Income and Labour Dynamics in Australia |
HSU | Health Services Union of Australia |
Horticulture Award | Horticulture Industry Award 2010 |
Hospitality Associations | Collectively the AHA, MIMA and AAA |
Hospitality Award | Hospitality Industry (General) Award 2010 |
Hospitality Awards | The Clubs Award, the Restaurant Award and the Hospitality Award (collectively) |
JES | Joint Employer Survey |
Joinery Award | Joinery and Building Trades Award 2010 |
Law Firms | Russell Kennedy, Norton Rose Fulbright, Arnold Bloch Leibler, Hall & Wilcox, Clayton Utz, Thomson Geer, Corrs Chambers Westgarth, Maddocks, DLA Piper, Allen & Overy, Piper Alderman, Dibbs Barker, Ashurst, Herbert Smith Freehills, Minter Ellison, Allens, Gilbert & Tobin, Lander & Rogers, King & Wood Mallesons, Davies Collison Cave, and Gadens |
Legal Services Award | Legal Services Award 2010 |
Long Distance Award | Road Transport (Long Distance Operations) Award 2010 |
Manufacturing Award | Manufacturing and Associated Industries and Occupations Award 2010 |
MBA | Master Builders Association |
Meat Award | Meat Industry Award 2010 |
MIMA | The Motor Inn, Motel and Accommodation Association |
MUA | Maritime Union of Australia |
NES | National Employment Standards |
NFF | National Farmers Federation |
NOSHSA | National Outside of School Hours Services Association |
NRA | National Retailers Association |
NSWBC | New South Wales Business Chamber |
NSW Commission | Industrial Commission of New South Wales or |
NTEU | National Tertiary Education Industry Union |
NUW | National Union of Workers |
OECD | Organisation for Economic Co-operation and Development |
Pastoral Award | Pastoral Award 2010 |
PGA | The Pharmacy Guild of Australia |
PWDA | People with Disability Australia |
Rail Award | Rail Industry Award 2010 |
Rail Employers | Aurizon, Australian Rail Track Corporation, Brookfield Rail Pty Ltd, Metro Trains Melbourne, Sydney Trains and V/Line Passenger Pty Ltd |
RCI | Restaurant & Catering Industrial |
RCSA | Recruitment & Consulting Services Association Australia & New Zealand |
Restaurant Award | Restaurant Industry Award 2010 |
Retail Award | General Retail Industry Award 2010 |
Review | 4 yearly review of modern awards |
Road Transport Award | Road Transport and Distribution Award 2010 |
RTBU | Rail, Tram & Bus Union |
SAWIA | South Australian Wine Industry Association |
SCHCDSI Award | Social, Community, Home Care and Disability Services Industry Award 2010 |
SDA | Shop, Distributive and Allied Employees Association |
St Ives | St Ives Group |
Stevedoring Award | Stevedoring Industry Award 2010 |
Stevedoring Employers | Qube Ports Pty Ltd, Qube Bulk Pty Ltd and the employing entities of the DP World group of companies |
TCFUA | Textile, Clothing and Footwear Union of Australia |
Transitional Review | Transitional (or 2 year) review of modern awards under Item 6 of Schedule 5 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) |
TWU | Transport Workers’ Union of Australia |
VMRSR Award | Vehicle Manufacturing, Repair, Services and Retail Award 2010 |
Wine Award | Wine Industry Award 2010 |
WR Act | Workplace Relations Act 1996 (Cth) |
1. INTRODUCTION AND STATUTORY FRAMEWORK
1.1 Origin and subject matter of these proceedings
[1] The Fair Work Act 2009 (Cth) (the FW Act) provides, in s.156, that the Fair Work Commission (the Commission) must conduct a 4 yearly review of all modern awards. The Commission is currently conducting the first 4 yearly review, which was required by s.156(1) to start as soon as practicable after 1 January 2014. In a statement issued on 6 February 2014 1, the Commission identified that the current 4 yearly review would consist of an Initial stage which dealt with jurisdictional issues, an Award stage which dealt with each modern award individually, and a Common issues stage. In a further statement issued by the Commission (Ross J, President) on 17 March 20142, “common issues” were characterised as being likely to be “proposals for significant variation or change across the award system, such as applications which seek to change a common or core provision in most, if not all, modern awards”. Matters identified as common issues would be referred to a specific Full Bench for determination in a “stand-alone” proceeding rather than being dealt with in the context of each individual modern award in the Award stage.
[2] This decision concerns the common issues proceedings dealing with part-time and casual employment. Potential common issues about these subject matters were first identified in a statement issued on 1 October 2014. 3 Following this, there was a contest between the peak industrial organisations and other interested parties about whether some or all of these issues should be referred to a separate Full Bench to by dealt with as common issues. This dispute was resolved in a statement issued by the Commission (Ross J, President) on 1 December 2014.4 Relevant to these proceedings, the statement said:
“[12] The ACTU is proposing model clauses dealing with the following issues:
- Casual conversion - where a casual employee has the right to elect to have their employment converted to full-time or part-time employment;
- Casual conversion - where a casual employee is deemed to be employed on a permanent full-time or part-time basis after a certain length of time unless electing to remain employed as casual;
- Minimum engagements; and
- Other provisions relating to casual employees.4
[13] The ACTU seeks a model casual conversion clause and a four hour minimum payment/engagement for casual and part-time employees covered by a number of awards. The ACTU are also seeking to insert clauses into awards stating that employees are not to be engaged and re-engaged to avoid award obligations; that employers shall give existing casuals opportunities to increase working hours by agreement; and that upon engagement casual employees must be informed by the employer about their classification level and rate of pay.
[14] Various employer organisations including ACCI and Ai Group have foreshadowed their strong opposition to the ACTU’s claims. A number of submissions, particularly by employer parties, also opposed these claims being dealt with as a ‘common issue’, largely on the basis that the Commission should have regard to the circumstances in the particular industry or sector covered by an award and not adopt a ‘one size fits all approach’. These submissions are more appropriately directed at the merit of the claims advanced rather than the process adopted for the hearing and determination of the claims.
[15] The ACTU claims are properly characterised as ‘common issues’ and will be referred to a ‘stand alone’ Full Bench (the Casual and Part-time Employment Full Bench). The characterisation of a claim as a common issue simply relates to the process adopted for hearing and determining the claim, it does not involve any assumption that, if granted, the variation would apply consistently across all or most modern awards. Interested parties who oppose the ACTU’s claims on the basis of the particular circumstances pertaining to the modern award in which they have an interest will have an opportunity to make such submissions to the Casual and Part-time Employment Full Bench.
[16] In addition to the ACTU claims a number of employer parties have foreshadowed claims in relation to the various aspects of casual and part-time employment. For example, Ai Group are seeking changes to the casual and part-time employment provisions in some 25 particular awards for reasons relating to the industries concerned. The employer claims tend to relate to awards of specific interest to the relevant organisation and do not seek a common standard across all or most awards. On that basis it is contended that such claims do not have the character of a ‘common issue’. I agree. But that still leaves the question of the most appropriate way of dealing with these claims...
...
[19] To ensure that the range of issues relating to casual and part-time employment are dealt with efficiently and to minimise the risk of inconsistent decisions it is appropriate that all matters pertaining to casual and part-time employment be dealt with by one Full Bench, the Casual and Part-time Employment Full Bench. This means that the ACTU and employer claims referred to in the submissions filed and matters which arise during the award stage, will be referred to the Casual and Part-time Employment Full Bench. The referral of these claims to that Full Bench simply relates to the process adopted for the hearing and determination of these claims.”
[3] This Full Bench was subsequently constituted to deal with the part-time and casual employment issues identified as part of the Common issues stage of the review.
[4] Since the 1 December 2014 statement, further issues arising from individual awards or groups of awards concerning part-time and/or casual employment have been referred to this Full Bench. The result has been that we have been required to hear and determine a number of claims advanced by interested parties which affect all, or large numbers of, modern awards, as well as claims which are discrete to particular awards or groups of awards.
[5] A number of claims have been given the nomenclature “common claims” because they affected all or a large number of awards. The common claims are dealt with in Chapter 3 of this decision. The claims were, briefly, as follows:
(1) The Australian Council of Trade Unions (ACTU): The ACTU common claim consisted of three elements. The first concerned casual conversion. The ACTU sought a model casual conversion clause to be placed in 88 modern awards which did not already contain such a clause as well as in 17 modern awards which do currently contain such a clause. The ACTU further sought that the existing casual conversion clauses in 5 other modern awards be altered so that casual employees meeting specified criteria would be deemed to have become permanent employees after an identified period. The second element was a standard provision for modern awards to require a standard daily minimum engagement period of 4 hours for all casual and part-time employees. The third element was a model clause which prohibited employers from engaging and re-engaging casual employees to avoid award obligations, required consultation with current casual and/or part-time employees about increasing their hours of work prior to engaging new employees, and required that casual employees upon engagement be informed of their classification and rate of pay.
(2) The Australian Manufacturing Workers’ Union (AMWU): The AMWU has claimed 2 variations to the Manufacturing and Associated Industries and Occupations Award 2010 (Manufacturing Award), the Vehicle Manufacturing, Repair, Services and Retail Award 2010 (VMRSR Award), the Graphic Arts, Printing and Publishing Award 2010 and the Food, Beverage and Tobacco Manufacturing Award 2010 (Food and Beverage Award). The first would vary the existing casual conversion clauses to a “deeming” model of conversion. The second would vary the current minimum engagement provisions for casual and part-time employees so that the minimum period would be 4 hours, or 3 hours by written agreement between the employer and the employee.
(3) The Australian Industry Group (Ai Group): The Ai Group has sought a variation to the existing casual conversion clauses in 21 of modern awards to remove the requirement upon employers to notify eligible casual employees of their right to request to convert to permanent employment.
(4) The Recruitment & Consulting Services Association Australia & New Zealand (RCSA): The RCSA has similarly sought to have the notification requirement in the existing casual conversion clauses in 20 modern awards removed.
[6] The claims in relation to specific awards were, in summary:
Hospitality Awards
- The Australian Hotels Association (AHA), The Accommodation Association of Australia (AAA) and The Motor Inn, Motel and Accommodation Association (MIMA) are seeking to introduce more flexible part-time employment provisions in the Hospitality Industry (General) Award 2010 (Hospitality Award).
- Clubs Australia Industrial (CAI) is likewise seeking the introduction of more flexible part-time employment provisions in the Registered and Licensed Clubs Award 2010 (Clubs Award).
- In respect of the Clubs Award, Hospitality Award, and the Restaurant Industry Award 2010 (Restaurant Award), United Voice seeks to introduce a provision which entitles casual employees to overtime penalties in circumstances where the employees have worked in excess of 38 hours per week or exceeded 10 hours per day. It also made late claims for the minimum daily engagement period for casual employees to be increased from 2 hours to 3 hours in each (in the alternative to the ACTU’s claim for 4 hours in all awards), and for the daily maximum ordinary hours for full-time and part-time employees under each award to be equalised at 10 hours.
These claims are dealt with in Chapter 4 of this Decision.
SCHCDSI Award and Aged Care Awards
- Australian Business Industrial (ABI) and the New South Wales Business Chamber (NSWBC) are seeking a variation to the part-time employment provisions in the Social, Community, Home Care and Disability Services Industry Award 2010 (SCHCDSI Award)to allow greater flexibility in the rostering of the hours of part-time employees in relation to a certain category of work (primarily related to the implementation of the National Disability Insurance Scheme). Jobs Australia supported these variations.
- The St Ives Group is seeking variations to the Aged Care Award 2010 (Aged Care Award) and the SCHCDSI Award to make part-time employment more flexible and to amend provisions in relation rostering.
These claims are dealt with in Chapter 5 of this Decision.
Retail Awards
- The Shop, Distributive and Allied Employees Association (SDA) is seeking variations to the General Retail Industry Award 2010 (Retail Award), the Fast Food Industry Award 2010 (Fast Food Award) and the Hair and Beauty Industry Award 2010 (Hair and Beauty Award) to establish an entitlement for casual employees to the payment of overtime when performing work in excess of ordinary hours.
- The Ai Group proposes that the Fast Food Awardbe varied to allow employers and casual employees individually to agree to a minimum daily engagement period of less than the current minimum of 3 hours.
These claims are dealt with in Chapter 6 of this Decision.
Horticulture, Pastoral and Wine Industry Awards
- The Australian Workers’ Union (AWU) is seeking a variation to the Horticulture Award 2010 (Horticulture Award)to clarify that a casual employee is entitled to overtime rates where the employee has worked outside the span of ordinary hours.
- The National Farmers Federation (NFF) is seeking a variation to the Pastoral Award 2010 (Pastoral Award) to reduce the minimum period of engagement of dairy operators from 3 hours to 2 hours.
- The South Australian Wine Industry Association (SAWIA) is seeking a variation to the Wine Industry Award 2010 (Wine Award) to reduce the minimum engagement of casual employees from 4 hours to 2 hours.
These claims are dealt with in Chapter 7 of this Decision.
Road Transport Awards
- The Australian Public Transport Industrial Association (APTIA) is seeking to introduce a new provision in the Passenger Vehicle Transportation Award 2010 (Bus Award) which clarifies the operation of the minimum engagement period obligation for casual school bus drivers, and enables casual school bus drivers and their employer to agree to a minimum payment per engagement of less than the current 2 hours in certain circumstances.
- The Transport Workers’ Union of Australia (TWU) is seeking to insert a new provision in the Bus Award to clarify that a casual employees engaged solely for the purpose of transportation of school children to and from school may be rostered to perform 2 separate engagements per day with each engagement being a minimum of 2 hours.
- The Ai Group seeks the introduction of provisions in the Road Transport (Long Distance Operations) Award 2010 (Long Distance Award) to enable employees to be employed on a part-time basis. The award currently only allows for full-time and casual employment.
These claims are dealt with in Chapter 8 of this Decision.
Building and Construction Awards
- The Master Builders Association (MBA) and the Housing Industry Association (HIA) have made separate and differing applications to vary the casual employment provisions in the Building and Construction General On-site Award 2010 (Building Award)and the Joinery and Building Trades Award 2010 (Joinery Award) to clarify how casual hourly rates are to be calculated.
- The HIA and the Ai Group both seek a reduction in the daily minimum engagement period for casual employees in the Joinery Awardfrom 7.6 hours to 4 hours.
- These claims are dealt with in Chapter 9 of this Decision.
Black Coal Mining Industry Award
- The Ai Group seeks that the Black Coal Mining Industry Award 2010 (Black Coal Award) be variedto remove the current restriction which only allows casuals to be engaged in staff classifications. The removal of this restriction would have the effect of permitting casuals to be engaged across all classifications of the award.
This claim is dealt with in Chapter 10 of this Decision.
Rail Industry Award
- The Rail, Tram & Bus Union (RTBU) seeks a variation to the Rail Industry Award 2010 (Rail Award) to clarify that the casual loading of 25% will be paid when overtime and penalty rates are applicable.
This claim is dealt with in Chapter 11 of this Decision.
Legal Services Award
- A group of 21 law firms 5 seeks a variation to the Legal Services Award 2010 (Legal Services Award)to reduce the minimum payment for casual employees from 4 hours to 3 hours.
This claim is dealt with in Chapter 12 of this Decision.
1.2 Statutory framework – general principles
[7] Section 156 of the FW Act provides:
“156 4 yearly reviews of modern awards to be conducted
Timing of 4 yearly reviews
(1) The FWC must conduct a 4 yearly review of modern awardsstarting as soon as practicable after each 4th anniversary of the commencement of this Part.
Note 1: The FWC must be constituted by a Full Bench to conduct 4 yearly reviews of modern awards, and to make determinations and modern awards in those reviews (see subsections 616(1), (2) and (3)).
Note 2: The President may give directions about the conduct of 4 yearly reviews of modern awards (see section 582).
What has to be done in a 4 yearly review?
(2) In a 4 yearly review of modern awards, the FWC:
(a) must review all modern awards; and
(b) may make:
(i) one or more determinations varying modern awards; and
(ii) one or more modern awards; and
(iii) one or more determinations revoking modern awards; and
(c) must not review, or make a determination to vary, a default fund term of a modern award.
Note 1: Special criteria apply to changing coverage of modern awards or revoking modern awards (see sections 163 and 164).
Note 2: For reviews of default fund terms of modern awards, see Division 4A.
Variation of modern award minimum wages must be justified by work value reasons
(3) In a 4 yearly review of modern awards, the FWC may make a determination varying modern award minimum wages only if the FWC is satisfied that the variation of modern award minimum wages is justified by work value reasons.
(4) Work value reasonsare reasons justifying the amount that employees should be paid for doing a particular kind of work, being reasons related to any of the following:
(a) the nature of the work;
(b) the level of skill or responsibility involved in doing the work;
(c) the conditions under which the work is done.
Each modern award to be reviewed in its own right
(5) A 4 yearly review of modern awards must be such that each modern award is reviewed in its own right. However, this does not prevent the FWC from reviewing 2 or more modern awards at the same time.
[8] The Commission is constrained in its conduct of a 4 yearly review by s.138, which provides:
“138 Achieving the modern awards objective
A modern award may include terms that it is permitted to include, and must include terms that it is required to include, only to the extent necessary to achieve the modern awards objective and (to the extent applicable) the minimum wages objective.”
[9] Section 136 sets out the terms which may or must be included in a modern award. Section 136(1)(a) refers to Subdivision B of Division 3 of Part 2-3 of the FW Act as setting out the terms that may be included in a modern award. Section 139, which falls within Subdivision B, sets out the general categories of terms which may be included, and s.139(1)(b) specifically provides that a modern award may include terms about the following matters:
“(b) type of employment, such as full-time employment, casual employment, regular part-time employment and shift work, and the facilitation of flexible working arrangements, particularly for employees with family responsibilities;”
[10] The modern awards objective referred to in s.138 is set out in s.134 as follows:
“134 The modern awards objective
What is the modern awards objective?
(1) The FWC must ensure that modern awards, together with the National Employment Standards, provide a fair and relevant minimum safety net of terms and conditions, taking into account:
(a) relative living standards and the needs of the low paid; and
(b) the need to encourage collective bargaining; and
(c) the need to promote social inclusion through increased workforce participation; and
(d) the need to promote flexible modern work practices and the efficient and productive performance of work; and
(da) the need to provide additional remuneration for:
(i) employees working overtime; or
(ii) employees working unsocial, irregular or unpredictable hours; or
(iii) employees working on weekends or public holidays; or
(iv) employees working shifts; and
(e) the principle of equal remuneration for work of equal or comparable value; and
(f) the likely impact of any exercise of modern award powers on business, including on productivity, employment costs and the regulatory burden; and
(g) the need to ensure a simple, easy to understand, stable and sustainable modern award system for Australia that avoids unnecessary overlap of modern awards; and
(h) the likely impact of any exercise of modern award powers on employment growth, inflation and the sustainability, performance and competitiveness of the national economy.
This is the modern awards objective.
When does the modern awards objective apply?
(2) The modern awards objective applies to the performance or exercise of the FWC’s modern award powers, which are:
(a) the FWC’s functions or powers under this Part; and
(b) the FWC’s functions or powers under Part 2-6, so far as they relate to modern award minimum wages.
Note: The FWC must also take into account the objects of this Act and any other applicable provisions. For example, if the FWC is setting, varying or revoking modern award minimum wages, the minimum wages objective also applies (see section 284).”
[11] The general principles as to the interpretation and application of the above provisions in the conduct of the 4 yearly review have been comprehensively stated in a number of decisions issued in the course of the review, most notably the 4 Yearly Review of Modern Awards: Preliminary Jurisdictional Issues Decision 6, the 4 Yearly Review of Modern Awards - Annual Leave Decision7and the 4 Yearly Review of Modern Awards - Penalty Rates Decision (the Penalty Rates Decision).8 We intend to follow those principles. It is not necessary to fully reproduce all that is stated in those decisions, but in the context of the issues in these proceedings 3 matters bear emphasis. Firstly, in the Penalty Rates Decision the Full Bench made it clear that it was not necessary, in order to justify the variation of a modern award, that a “material change in circumstances” since the making of the modern award(s) under review be demonstrated.9 Rather, it summarised the task of the Commission in the conduct of the 4 yearly review as follows (footnotes omitted):
“1. The Commission’s task in the Review is to determine whether a particular modern award achieves the modern awards objective. If a modern award is not achieving the modern awards objective then it is to be varied such that it only includes terms that are ‘necessary to achieve the modern awards objective’ (s.138). In such circumstances regard may be had to the terms of any proposed variation, but the focal point of the Commission’s consideration is upon the terms of the modern award, as varied.
2. Variations to modern awards must be justified on their merits. The extent of the merit argument required will depend on the circumstances. Some proposed changes are obvious as a matter of industrial merit and in such circumstances it is unnecessary to advance probative evidence in support of the proposed variation. Significant changes where merit is reasonably contestable should be supported by an analysis of the relevant legislative provisions and, where feasible, probative evidence.
3. In conducting the Review it is appropriate that the Commission take into account previous decisions relevant to any contested issue. For example, the Commission will proceed on the basis that prima facie the modern award being reviewed achieved the modern awards objective at the time it was made. The particular context in which those decisions were made will also need to be considered.
4. The particular context may be a cogent reason for not following a previous Full Bench decision, for example:
- the legislative context which pertained at that time may be materially different from the FW Act;
- the extent to which the relevant issue was contested and, in particular, the extent of the evidence and submissions put in the previous proceeding will bear on the weight to be accorded to the previous decision; or
- the extent of the previous Full Bench’s consideration of the contested issue. The absence of detailed reasons in a previous decision may be a factor in considering the weight to be accorded to the decision.”
[12] Secondly, in order to be satisfied that a modern award is not achieving the modern awards objective, it is not necessary to make a finding that the award fails to satisfy one or more of the considerations required to be taken into account under s.134(1). The Commission’s task is to balance the various considerations and ensure that modern awards provide a fair and relevant minimum safety net of terms and conditions. 10
[13] Thirdly, the requirement in s.156(5) to review each award “in its own right” is intended to ensure that the review is conducted by reference to the particular terms and particular operation of each particular award, rather than by a global assessment based upon generally applicable conditions. However this does not mean that the review of a modern award is to be confined to a single holistic assessment of all of its terms, nor does it prevent the Commission from reviewing 2 or more modern awards at the same time. 11 We will deal with this issue in greater detail later in this decision in the context of submissions advanced by the Ai Group and the Australian Chamber of Commerce and Industry (ACCI) in opposition to the ACTU’s claims.
1.3 Terminology used in this decision
[14] Most modern awards provide for three types of employment: full-time, part-time and casual. Different terminology has been used to distinguish full-time and part-time employment from casual employment. Full-time and part-time employment were for a long time described as “weekly” employment, on the basis of the notice period usually required under awards to terminate the employment. As discussed later, this was fundamentally different to casual employment, which may be terminated on short or no notice. However the label of “weekly” employment has generally fallen into disuse, particularly having regard to the longer notice periods prescribed by s.117 of the FW Act where the employment has lasted longer than a year. Another common description of full-time and weekly employment, as distinct from casual employment, is “permanent” employment. This is somewhat of a misnomer, since no employment is truly permanent, but this expression is in common currency and will be used throughout this decision. It is particularly useful to distinguish part-time employment in the sense it is used in modern awards from casual employment involving the working of part-time (that is, less than full-time) hours.
2. HISTORY AND NATURE OF CASUAL AND PART-TIME EMPLOYMENT
2.1 Casual employment
[15] Before proceeding to direct consideration of the various claims concerning casual employment, it is first useful to examine the history and nature of casual employment. As will be made clear, the concept of casual employment is elusive, and its legal and practical incidents have been the subject of a considerable degree of conflicting or inconclusive analysis.
Early workers’ compensation and other decisions
[16] Judicial consideration of casual employment as a distinct category of employment in the courts of the United Kingdom and Australia appears to have first occurred in the early twentieth century in connection with the application of workers’ compensation legislation. One of the earliest decisions to have discussed casual employment in detail, in the context of employment practices at the London docks, was that of the UK Court of Appeal in Barnett v Port of London Authority. 12 The matter involved the proper method of determining the average weekly wages of 2 injured casual dock workers for the purpose of assessing the compensation to which they were entitled under the Workmen’s Compensation Act 1906 (UK), in circumstances where they had not been employed long enough to average their earnings. On the facts of the case, that depended on the number of days’ work per week the employees would have worked. Cozens-Hardy MR described the system of employment applying to both workers as follows:
“At the docks of the Port of London Authority there are men on the permanent staff, who may be said to be divided into two classes. Then come casual labourers - (1.) B casuals, who have tickets entitling them to be called on next after the permanent men have been employed, and (2.) extra casuals, who have no tickets and are not called on until both the permanent men and the B casuals have been employed. The pay for the B casuals and the extra casuals is identical, namely, 7d. per hour with overtime.” 13
[17] The majority considered that the preferential status of the “B casual” would in normal circumstances advantage him in terms of the allocation of work over the “extra casual”. Lord Justice Hamilton said in relation to the first of the 2 workers under consideration:
“I think there is no evidence on which he could find that the workman could average more than three days as a dock labourer. The applicant gave no such evidence, and the evidence for the respondents was that a man to whom the port authority had not given a ticket would only get three days’ work per week as a dock labourer, of which only one would be in their employment, as against three or four if he had a ticket. The applicant had no ticket and was not entitled to one. It was his personal disability existing in fact, and so long as it lasted there was no evidence that he could get over three days’ work a week on an average as a dock labourer.
...
... the acquisition of a ticket conditioned the chance of employment, and this was a fact bearing on the earnings of a person in the grade of a dock labourer in the port authority’s employment that could not be disregarded.” 14
[18] This early decision made it apparent that persons who were regarded as “casuals” for the purpose of the legislation were not necessarily a homogenous class, and that different casuals could have different expectations of continuing employment depending upon the particular circumstances of their engagement. The common feature of the casual employment system described was however that employment was by the day.
[19] In Cue v Port of London Authority 15, consideration was given to the employment arrangements of the deceased worker in relation to whom a compensation claim had been made pursuant to the Workmen’s Compensation Act 1906 (UK). The worker was a docker who had worked casually for 2 different employers over a period of time. In the judgment of Swinfen Eady LJ, the contractual basis of the worker’s casual employment was described in the following terms:
“Perhaps these may be called successive contracts, because technically, even with casual employment, for the time of the actual employment there was a subsisting contract, but it was merely casual employment; that is to say, there were no running contracts under which the employer was entitled to require the labour of the workman or under which the workman was entitled to demand employment from the employer.” 16
[20] In the same decision Pickford LJ described the worker’s casual employment in the following terms:
“Now the nature of casual employment of that kind is quite well known. The contract that exists is the contract that arises from the taking on of men to do a job and the job is for a whole day or a half-day, as the case may be. As soon as that job is done the contract is done. He then on the next day, or if he has only worked half a day possibly the same day, takes another job from another employer, but he does not do that till the first job is finished. The result of that is that he only takes the second job, on which the contract arises, after the first one is finished, and he only takes a later one after the former one is finished.” 17
[21] The above analysis was in aid of the conclusion reached by Pickford LJ (and the other members of the court) that, although the workman had performed work for 2 different employers, he could not be characterised for the purpose of the legislation as being engaged under “concurrent” contracts of employment because, being employed casually, there was never more than one contract of employment on foot at any one time. The analysis, in contractual terms, characterised the employment as a series of fixed-term employment contracts, not lasting beyond a day, under which there was no continuing obligation upon the employer to employ, and no continuing obligation on the employee to attend for work.
[22] The same approach was taken in the House of Lords decision in Price v Guest, Keen and Nettlefolds, Limited18, which involved the consideration of a provision in the Workmen’s Compensation Act 1906 (UK) under which compensation to the widow of a deceased worker was to be assessed as “a sum equal to his earnings in the employment of the same employer during the three years next preceding the injury”. Lord Atkinson said:
“In some cases, such as that of dock labourers, the man is, I believe, employed for the day and paid off at night. There is a new contract of service entered into each morning; but a continuous and unbroken succession of such contracts as these for three years might form the basis of an employment for three years. The rules do not require that one contract of service should cover the whole period of three years. It is the employment which is to cover that period in order to bring the case within the first limb of the rule.” 19
[23] Issues concerning casual employees similar to those addressed in the UK cases referred to arose in the Australia courts after the introduction of statutory workers’ compensation schemes in the various States. The High Court decision in Doyle v Sydney Steel Co Ltd 20 is the most important early example of these decisions, and like the UK cases involved a question as to how the average weekly earnings of a casual employee should be determined for the purpose of the assessment of workers’ compensation (under the Workers’ Compensation Act 1926 (NSW)). In the judgment of Dixon J (as he then was), reference was made to a number of the UK cases including Cue v Port of London Authority and Price v Guest, Keen and Nettlefolds, Limited, and it was noted that the NSW Act had been amended to add a provision concerning the ascertainment of the average weekly earnings of casual workers in terms which reflected the analysis of Swinfen Eady LJ in Cue which has earlier been quoted.21 Dixon J then addressed the difficulty of determining average weekly earnings for short-term and intermittent workers, and in doing so referred to the lack of definition as to what was involved in casual employment:
“If, because of the shortness of the time during which the supposed employment by the fictional single employer has continued or because of its terms, it is impracticable to compute the rate of remuneration, recourse must be had to the standard of what another worker earns.
In the case of such typical casual work as wharf labouring, all this causes little or no difficulty. But unfortunately what is casual employment is ill defined. Indeed it is scarcely too much to say that it seems open to a tribunal of fact to treat most forms of intermittent or irregular work as casual. Where the employment involves a contract of service lasting some weeks followed by a long interval of idleness and then another such contract of service and so on, more difficulty arises, if the view is taken that the employee is a casual worker. Such a case is before us in the present appeal.
The worker, who is the appellant, is a boiler-maker. After ten months’ work out of the State, he returned to New South Wales in May 1934. He succeeded in obtaining a week’s work at his trade. This was followed by nearly six weeks’ idleness. Then, after a little over two weeks’ work for another employer, he remained unemployed for nine weeks. He had two more weeks’ work for a third employer and then eight more weeks’ idleness. Another fortnight’s work brought him to 17th December, when his work ended. But he resumed with the same employer on 17th January and worked two weeks. After an interval of a week’s idleness, he obtained employment with the respondent. After nearly six weeks’ work, he again became unemployed on 14th March 1935, the date of his injury. Evidence was given of the manner in which boiler-makers are engaged, how they are taken on as occasion arises and put off when the work is finished, and how some are given more permanent employment. The evidence showed the fluctuations in the numbers employed by the respondent during recent years when work was not plentiful. It appears that the appellant was paid the wages of a casual. In these circumstances the Workers’ Compensation Commission found that he was a casual worker. I do not know that this finding really operates against him. For even so, upon the facts the ascertainment of his average weekly earnings would depend on the question formulated by Cozens-Hardy M.R. in Anslow v. Cannock Chase Colliery Co. Ltd. He said:—’In my opinion the true test is this. What were his earnings in a normal week, regard being had to the known and recognized incidents of the employment? If work is discontinuous, that is an element which cannot be overlooked.’” 22
[24] Justice McTiernan also touched upon the characteristics of casual employment as follows:
“Now the term ‘casual worker’ is not capable of exact definition. Hamilton L.J. said in Knight v. Bucknill (1913) 6 B.W.C.C., at pp. 164, 165.: ‘I think that casual is here used not as a term of precision, but as a colloquial term.’ Each case is to be determined on its own facts, consideration being given not only to ‘the nature of the work but also the way in which the wages are paid, or the amount of the wages, the period of time over which the employment extends, indeed all the facts and circumstances of the case’ (Stoker v. Wortham (1919) 1 K.B. 499, at pp. 503, 504., per Swinfen Eady M.R.).” 23
[25] The difficulty in attaching any precise meaning to the concept of casual employment was reiterated by the High Court in Shugg v Commissioner for Road Transport & Tramways (NSW). 24That matter concerned the question of whether a person employed by a NSW Government transport agency as a casual employee, who had continuously been employed for over 3 and a half years, was an “officer” within the meaning of the Transport Act 1930 (NSW) and thus entitled to certain leave benefits. The relevant provision of this Act under which the person was engaged stated: “The board may appoint, employ, and dismiss such casual employees as it deems necessary for the purposes of this Act, and may fix wages and conditions of employment where these are not fixed in accordance with the provisions of other Act”. The majority (Latham CJ, Dixon, Evatt and McTiernan JJ; Starke J dissenting) determined that the employee was an officer notwithstanding that he was a casual. Latham CJ found that the provision of leave to the employee was not inconsistent with the right of the employer to dismiss him at any time:
“In the case of a casual employee still in the employment of the commissioner such considerations do not exist. There is, in my opinion, no difficulty in applying the words to a casual employee in such a position. If a casual employee has actually served for twelve months, it is quite possible to give him a week’s leave on full pay. If he has completed twenty years of service, there is no difficulty in giving him ‘one month’s extended leave on full pay.’ So also, if he has been required to work on a bank or public holiday, there is no difficulty in giving him leave on full pay for another day at some future time. In my opinion there is neither legal nor administrative difficulty in applying these provisions to casual employees who are still in the employment of the commissioner.” 25
[26] Dixon J distinguished between casuals employed continuously for lengthy periods and those employed only on particular occasions:
“The expression ‘casual’ is a word of indefinite meaning which elsewhere has caused difficulty. We are apt to associate with the word elements of chance or of discontinuity. We perhaps think of casual employment as occasional or intermittent. But it has been found so difficult to fix any definite tests for casual employment that under Workmen’s Compensation Acts refuge has been taken in treating it as a question of fact in each case. I do not think that sec. 101 means to confine the board’s power of appointing casual employees to temporary or unforeseen occasions. This case shows that the board in the exercise of the power retains men in its employment who are required for regular work and for an indefinite duration of time. Treating the section in this way as authorizing general employment as distinguished from appointment to permanent office, it appears to me that it does not afford the criterion for determining who do and who do not fall within sec. 123. The distinction upon which the application of sec. 123 turns is, I think, between a general, indefinite or continuous employment and an employment for a particular occasion or occasions, or to fulfil some special or defined purpose of brief duration. If an employment is continuous, it may result in twelve months actual service or, indeed, conceivably in twenty years’ service. I do not think that there is enough in sec. 123 or in the other sections dealing with officers to indicate that the word ‘officer’ in sec. 123 does not include men continuously employed in such a way, simply because they are appointed under sec. 101. The definition of ‘officer’ therefore appears to me to apply to sec. 123. But from its terms that section is inapplicable to cases such as were put in argument of men put on for a public holiday or holidays or for some other particular occasion and not employed continuously or indefinitely.” 26
[27] Evatt J emphasised that the relevant Act empowered the employment of casuals for long periods of time, and stated:
“The sole question which arises is whether the plaintiff was an ‘officer’ entitled to the benefit of sec. 123. By sec. 4, unless the context or subject matter otherwise indicates or requires, an officer means any ‘person employed or appointed by the Commissioner of Road Transport or by the Board.’ Prima facie, therefore, the plaintiff, as a person so employed, is an ‘officer’ within the meaning of sec. 123. It is contended that the context indicates otherwise. No doubt, the plaintiff is a ‘casual employee’ within the meaning of sec. 101. But, in my opinion, sec. 101 was inserted in order to provide statutory warrant for the practice adopted by the Railway Commissioners, of appointing persons temporarily and continuing them in employment for periods extending far beyond the period of six months contemplated by the Government Railways Act 1912. Sec. 101 gives a specific authority to employ without any such limitation of time. Thus the plaintiff has been a ‘casual’ for three and one-half years and apparently will be employed indefinitely.
Sec. 101 does not require or even suggest that a person appointed thereunder is not an ‘officer’ within sec. 123. The policy embodied in sec. 123 is that the granting of leave in respect of public holidays is regarded as necessary for the efficiency of the transport services, especially as, in the case of the running services, the strain of work is greatly increased by reason of the increased public use of the services on holidays. It would be surprising to find that leave is granted to one employee but denied to another similarly employed merely because the latter is not ‘permanent.’ There appears to be no obligation to make ‘casual’ employees ‘permanent’ after a certain term, so that, if the commissioner is right, a ‘casual’ might be employed for twenty years in the department but receive none of the benefits of sec. 123.” 27
[28] Starke J, in his dissenting judgment, considered that the statutory provision conferring leave benefits on “officers” was inapt to apply to casuals, stating:
“In my opinion this provision contemplates continuity of employment appropriate to the permanent and regular staff of the defendant, and is wholly inappropriate to the persons casually or intermittently employed.” 28
[29] It not possible to obtain from Doyle and Shugg any clear set of objective criteria by which it might be determined that employment is casual in nature. The judgment of Dixon J in Doyle disavowed the contractual analysis in the early UK cases we have earlier referred to that casual employment consists of a series of contracts lasting no longer than a day, since Dixon J contemplated that casual employment might consist of contracts of employment lasting for a period of weeks on each occasion. In Shugg, although it was pre-supposed that casual employment would display the characteristics of being occasional, intermittent and discontinuous, this did not always need to be the case, and it was possible for long-term regular employment to also be casual in nature.
Development of federal award regulation of casual employees
[30] The early development by the then Commonwealth Court of Conciliation and Arbitration of award provisions appropriate for casual employees was intertwined with the development of the concept of weekly or “permanent” employment. 29 This may be illustrated by the early history of the award which subsequently became colloquially known as the Metals Award. The first award was made by the Court, constituted by its President, Higgins J in 1921 in Amalgamated Society of Engineers v Adelaide Steamship Co. Ltd.30 In relation to a claim for employees to receive weekly as distinct from hourly rates, Higgins J made a distinction between “regular” and “permanent” employment on the other hand and casual employment as follows:
“Weekly Rates
The claim is for weekly rates with one week’s notice on either side before termination of employment. The usual practice, here as in England, is to have hourly rates for engineers. In the log of 1919, this union claimed daily rates. I have often expressed myself in favour of weekly employment in all cases where the nature of the business makes it practicable. In Great Britain even dockers - waterside workers - have recently secured daily rates instead of hourly. The employment of engineers is regular and fairly permanent. Men keep at the same undertaking day after day, week after week, even year after year; and even if work is not ready for them, of [sic] if they are absent through illness or other cause, or if they lose an hour, even five minutes in some cases, they lose their pay. There is nothing that steady family men desire more than constant work, and some certainty as to their income for a week or more ahead. My wages – basis and secondary – are awarded on the assumption that the employment is regular; and if the work is casual, not regular (as in the cases of the builders labourers and the waterside workers), I award more per hour than in the case of regular work. The employment - whatever it is - should yield enough pay for the needs of family life and the suitable reward for special qualifications. Under weekly wages the employee tends to identify himself with the particular undertaking, to feel interested in the concern, and it takes much more to induce him to throw up a job if it is constant. It is in the interest of the employers as well as in the interests of the employees that the employment should not be casual, that a man should not feel himself to be a piece of flotsam or jetsam in the industry - that he should have a sense of homeship in the concern. Moreover, the wages prescribed will be less; I am providing for 10 per cent higher wages in undertakings such as Mort’s Dock, in which casual labour for urgent repairs to ships seems to be necessary. I have carefully considered the objections made by employers to the change proposed - for it is a great change; and I think the objections can be met. The chief objection is of course, that if the employees do not suffer the loss of an hour’s pay for an hour’s absence, the inducement to be punctual and regular is taken away. Of course, the employer will have power to discharge the employee on notice, or in case of wilful misconduct, to dismiss him forthwith, without paying him for the part of the week served; but, in dismissing certain employees, the employer may be rather punishing himself. For instance, roll-turners are essential for the steel works at Warratah; but they are very scarce; and they cannot be replaced by others. Mr Evernden, one of the union officials, assures me that the men would not take advantage of the weekly tenure by greater irregularity of attendance; that they would feel more bound in honour to attend, as the whole loss for non-attendance would fall on the employer. I shall not, until the experiment be tried, treat this sentiment of honour as a thing to be scorned. Moreover, the same official tells me that if absences are more frequent under the same weekly wage than under the hourly, he thinks that the Court would be justified in varying the award. In the Old country, this union often expels men for laziness; and the union would consider a rule for similar discipline. I propose also, in prescribing the weekly hiring, to allow a deduction of pay for absence without reasonable cause. Mr. Lamb, the Union Engineering Co., says that this power to deduct for absence would meet the difficulty; and Mr Gepp, of Electrolytic Co., of Hobart, says it will meet at least one objection. I provide also that the engagement shall be from day to day for fourteen days, in order that the employer may have a chance of proving a new man’s competence and conduct. Perhaps I should add that the Metropolitan Gas Company of Melbourne has filed in this Court an agreement with the Federated Gas Employees Union, 10th December , 1920, for a weekly wage; but the agreement was made at my suggestion and in order to meet a difficult position.” 31
[31] In the award, clause 12(a) provided for weekly employment as follows:
“Weekly Hiring
12. (a) Except as to the casual employees referred to in clause 1 the employment is terminable on either side by one week’s notice given on any day or (if the employer terminate it) by payment of one week’s pay. But for the first fourteen days of employment the hiring shall be from day to day and during this period a day’s notice or a day’s pay shall be sufficient.” 32
[32] The exception of casual employees from weekly hiring in the above provision referred to clause 1, which relevantly provided:
“But for casual employees of Mort’s Dock and Engineering Company Limited, the Adelaide Steam-ship Company Limited, Chapman and Company Limited, and Poole and Steel Limited (at their respective works at Balmain) or of any other respondent the nature of whose business at the time of this award rendered similar casual employment necessary the minimum rates shall be per day and shall be one-sixth of the weekly rates above prescribed with the addition of 10 per centum.” 33
[33] Higgins J’s analysis was based on the notion that the defining characteristics of casual employment were that it involved work that was not constant or regular and daily engagement. He then assigned award entitlements to regular/permanent employees on the one hand and casual employees on the other on the basis that the employment in the former category would only be terminable on a week’s notice or a week’s pay in lieu (except in the case of misconduct or during an initial engagement period of 14 days), and that the employment in the latter category would be by the day and would attract an hourly rate of pay with a loading (of 10%). Higgins J’s decision was a foundational one for industrial arbitration, since it established a structure of award entitlements for different modes of employment which has subsequently become ubiquitous – the alternatives being weekly employment on the one hand, and employment on an hourly rate with a casual loading on the other. However in the award that he made, Higgins J did not establish firm criteria by which employees might be placed and remunerated in one category or the other (apart from the general reference in clause 1 to the casual rates being applicable to casual employees employed by the specifically identified employers or by those whose businesses of their nature “rendered ... casual employment necessary”). That is, the award applied casual employment entitlements to those employees who had a pre-existing designation as a casual, rather than attempting to define the characteristics of an employee to whom casual award entitlements were permitted to be paid. As will become apparent, that also became a pervasive feature of subsequent awards in Australia.
[34] It may additionally be noted that Higgins J placed emphasis on the non-monetary benefits for employee morale of weekly as distinct from casual employment. That is a theme to which we will return later in this decision.
[35] The issue of weekly hiring was subsequently revisited in relation to the award. In 1930 in Amalgamated Engineering Union v Metal Trades Employees Association 34 the Court, constituted by Beeby J, said:
“Weekly and Hourly Hiring
A difficult matter involved in these disputes was the question of whether engagement of labour should be by the week or by the hour. Employers again pressed very strongly for the hourly system, the Amalgamated Engineering Union just as strongly urging that the weekly system inaugurated by Mr. Justice Higgins in 1921 should continue. All other unions concerned, however (though some of them had asked for weekly hiring in their claims), ultimately agreed to either hourly rates with an addition to cover holidays and absences through sickness, or to an alternative system under which employers could adopt either method of engagement.
When dealing with an application in 1927 by engineers to vary their award in conformity with the 44-hour decision, I was impressed by evidence of employers as to disabilities which the weekly system imposed, and award, at the discretion of the employer, either weekly or hourly hiring. At that time I believed that the alteration so made would not violently disturb the customs then prevailing, but later, on facts which then seemed sufficient, and which need not now be traversed, I restored the weekly system, reserving the whole matter for reconsideration on the hearing of disputes relating to other classes of employees engaged in the industry as well as engineers. After much anxious thought, and in view of the preference of the majority of workmen employed in the group of industries as a whole, I have decided that the employer shall have the right to employ men by the week as in the expired engineers’ award, or by the day, with a proviso that if employment is not by the week wage rates prescribed shall be increased to the extent of 5s. per week in lieu of holiday pay and as compensation for average absences through sickness. I am satisfied that every employer can so adjust his business as to guarantee (with the exception of work on the water front or field work) at least one day’s work, and with those exceptions have provided for day wages. I have decided on this course mainly for the purpose of bringing about uniformity. If all the unions had claimed weekly hiring the result might have been different. But as all except one declare a preference for the loaded daily or hourly rate, for the sake of harmonious working the minority must give way to the majority. I still believe that a large section of employees in this industry can with advantage be kept on weekly hiring. The man who is guaranteed a week’s work, with a week’s notice of dismissal, is more likely to be interested in the welfare of his workshop than one who can be dismissed at any moment. I make this change believing that the mistake which many employers made on a previous occasion of unnecessarily disturbing conditions will not be repeated. There is no reason why a large percentage of the skilled labour in the industries should not be engaged on the weekly basis. I make no order compelling the adoption of either system, leaving employers free to arrange with their workmen which system shall operate, with the proviso that where the hiring is not weekly workmen shall receive the extra 5s. per week.” 35 (emphasis added)
[36] The award that was made by the Court relevantly provided as follows:
“Contract of Employment
13. (a) With the exceptions hereafter stated, employment may be by the week or by the day. If by the week, it shall be terminable on either side of one week’s notice given on any day, or (if the employer terminate it without such notice) by payment of one week’s wages.
...
(b) If the contract of employment is for daily hiring, the rates prescribed in clause 1 shall be increased 5s. per week as compensation for time lost on public holidays and unavoidable absences through sickness.”
...”
[37] As the emphasised passage in the decision of Beeby J and the award clause he determined make clear, the alternative modes of weekly employment and casual employment with a loaded rate were available as options to be selected by arrangement between the employer and the employee, and not on the basis of any objective criteria as to what constituted casual employment.
[38] In the succeeding award made in 1935 36, there was a reversion from daily hire to hourly hire for casuals, so that the “Contract of Employment” clause now included the following in subclause (a):
“Contract of Employment
16. (a) With the exceptions hereinafter stated employment may be by the week or by the hour. If by the week it shall terminable on either side by one week’s notice given on any day, or (if the employer terminate it with such notice) by payment of week’s wages.”
[39] The Metal Trades Award made by the Court (O’Mara J) in 1941 37 modified the position further by defining weekly employment and casual employment as distinct categories of employment in the following way:
“Weekly employment
18. (a) Except as hereinafter provided employment shall be by the week. Any employee not specifically engaged as a casual employee shall be deemed to be employed by the week
…
Casual Employment
(d) A casual employee is one engaged and paid as such. A casual employee for working ordinary time shall be paid per hour one-fortieth of the weekly rate prescribed by this award for the work which he or she performs.” 38
[40] The method adopted in the 1941 Metals Award of defining casual employees as those “engaged and paid as such”, with payment being on the basis of an hourly rate with a casual loading, did not in substance change prior to the establishment of modern awards. Thus the Metal, Engineering and Associated Industries Award 1998 - Part I at the time it was made (in clauses 4.2.2 and 4.2.3(a)) defined full-time employment and casual employment as follows:
“4.2.2 Full-time Employment
Any employee not specifically engaged as being a part-time or casual employee is for all purposes of this award a full-time employee, unless otherwise specified in the award.
4.2.3 Casual Employment
4.2.3(a) A casual employee is to be employed by the hour. A casual employee for working ordinary time shall be paid an hourly rate calculated on the basis of one thirty-eighth of the weekly award wage prescribed in clause 5.1 for the work being performed plus a casual loading of 20 per cent. The loading constitutes part of the casual employee’s all purpose rate.” 39
[41] The history of award regulation of casual employment in the metals industry was comprehensively reviewed by a Full Bench of the Australian Industrial Relations Commission (AIRC) in Re Metal, Engineering and Associated Industries Award, 1998 - Part 1 40(Metals Casuals Decision) – a decision which we will also consider later in the specific context of the casual conversion claims. The Full Bench noted41 that during the award simplification process conducted under the Workplace Relations Act 1996 (Cth) (WR Act), the references in the Metals Award to weekly employment had been removed apparently as a consequence of the 1997 Full Bench Award Simplification Decision42 which, in relation to the test case Hospitality Industry – Accommodation, Hotels, Resorts and Gaming Award 1995, re-categorised employment into 3 types: full-time, part-time and casual. Nonetheless the Full Bench described full-time employment as the “lineal descendant” of weekly employment.43
[42] The Full Bench described the “manifest incidents” of casual employment under the Metals Award as being that thee employee must be specifically engaged as a casual employee, that employment is by the hour, and that ordinary time work is paid at one thirty eighth of the weekly rate prescribed for the classification plus a casual loading of 20% forming part of the all purpose rate. 44 The Full Bench said that employment by the hour, which connoted a contract of employment based on “hourly hire”, was “the most important and most distinctive” incident of casual employment under the award, but found that in practice the position was somewhat different:
“[58] The evidence suggests that casual employment in the metals and manufacturing industry, in practice, is only infrequently by engagement that is a true hiring by the hour. It seems casual employment is often a continuing employment, until the need arises to interrupt or terminate it. It seems likely that, in such circumstances, the employment is terminated at will or on short notice, or is treated as expired if not renewed.”
[43] The Full Bench elsewhere described hourly employment under the award as likely to “have become a fiction for all purposes other than having the employment relationship expire at the will of the employer, or on abbreviated notice”. 45 As to the circumstances in which casual employment under the award could be used, the Full Bench said:
“[92] The Award now imposes no restriction on the circumstances in which a casual may be engaged, provided the employee is engaged as such. The history of award provisions for weekly hire and contract of employment in the industry does not support the submission made by the AMWU that the meaning of the word “casual” under the award should now be given a meaning associated with only irregular or occasional work. The gradual broadening of the function of the clause militates against the argument. Moreover, for the reasons we have indicated, we are unable to accept that it is sound in principle to attempt to distill from the circumstances in which a type of employment may have been used the determinants and incidents of the type of employment itself.”
[44] The Full Bench rejected a claim for the award to restrict the circumstances in which casual employment could be utilised, saying:
“[96] It does not follow from those requirements or principles that the award provisions should be expressed to exclude access to using the type of employment. Once it is accepted that hourly hire employment expiring on the term of each engagement unless renewed is a necessary type of employment, the award’s function is to define that type of employment more or less in those terms and to specify the incidents of its use in accordance with the award on the work to which it may be applied. We do not accept that it is appropriate in the circumstances of the industry covered by the Award to attempt to create an award duty as to the kind of work in which the type of employment will be used.”
[45] The reasoning of the Full Bench in the Metals Casuals Decision concerning casual conversion will be discussed later. Relevant to the conceptual development of casual employment provisions in federal awards, the Full Bench ultimately varied clause 4.2.3 of the Metals Award to provide:
“4.2.3 Casual Employment
4.2.3(a) A casual employee is to be one engaged and paid as such. A casual employee for working ordinary time shall be paid an hourly rate calculated on the basis of one thirty-eighth of the weekly award wage prescribed in clause 5.1 for the work being performedplus a casual loading of 25 per cent. The loading constitutes part of the casual employee’s all purpose rate.” 46 (emphasis added)
[46] Thus, as well as implementing the Full Bench’s decision to increase the casual loading to 25%, the new clause (as emphasised above) explicitly reaffirmed the position that the award’s casual provisions were applicable to a casual employee engaged and paid as such.
[47] In the above historical analysis we have focused upon the Metals Award given its central place in the development of awards in the federal industrial relations system. The position we have described, whereby the incidents of casual employment were engagement and payment as such, with payment being on the basis of an hourly rate with a casual loading, became entirely typical of awards in the federal system as they were immediately prior to the award modernisation process carried out pursuant to Part 10A of the WR Act. There were however some exceptions to this. A small proportion of awards did contain explicit restrictions on the circumstances in which casual employees could be engaged by employers. These included restrictions on the work functions that casual employees could perform 47 and restrictions on the period for which they could be engaged.48
Casual employment in termination of employment and award enforcement decisions
[48] The development of statutory unfair dismissal schemes in federal and state industrial relations legislation, and the questions which followed about the applicability of those schemes to casual employees, led to consideration in this different context about the nature and incidents of casual employment. The first significant decision in this category was Ryde-Eastwood Leagues Club Ltd v Taylor 49, a decision of the Industrial Relations Commission of NSW, which arose under the unfair dismissal regime contained in Ch.3 Pt.8 of the Industrial Relations Act 1991 (NSW). The employer in the matter contended that the employee who had made an application for an unfair dismissal remedy could not have been dismissed because he was a casual employee who was engaged on a shift-by-shift basis and who had not been re-engaged following the completion of his last shift by the employer. This contention was rejected at first instance and the employer appealed to a Full Bench of the NSW Commission.
[49] The Full Bench dismissed the appeal. In doing so, it distinguished an earlier Full Bench decision of the NSW Commission 50, in which it had been held that a casual employee had not been dismissed because it had not been established that there was a relationship of employer and employee in existence at the time when the employer declined to offer further casual work, on the basis that it turned on its particular facts.51 The Full Bench then referred to authorities to which we have earlier referred which demonstrated that “the term ‘casual worker’ is not capable of exact definition”, and said it was a matter of fact whether in a particular case there was “a contract of employment between an employer and an employee for employment as a casual on the basis of an on-going or continuing contract”.52 In that connection it referred to Licensed Clubs Association of Victoria & Anor v. Higgins53, a decision of the Industrial Relations Commission of Victoria in Full Session, and quoted the following passage:
“We are assisted by a number of authorities in dealing with the commissioner’s conclusion and finding. These authorities establish that the issue of whether there was a dismissal within the meaning of the Act is not resolved by the award classification or name given to the employment relationship by the parties. Instead it has to be determined whether service has been given under one continuing contract or a series of separate contracts. In order to establish whether service has been given under a continuing contract or a series of separate contracts it is necessary to examine the facts as to the relationship.
...
A finding that a dismissal has taken place depends on whether or not there is a continuing contract of service. The following tests, going to issues of fact, can be applied in determining the nature of the contract of service:
● The number of hours worked per week.
● Whether the employee worked according to a roster system that was published in advance and whether the employment pattern was regular.
● Whether there was reasonable mutual expectation of continuity of employment.
● Whether notice was required by an employer prior to the employee being absent or on leave.
● Whether the worker reasonably expected that work would be available.
● Whether the worker had a consistent starting time and set finishing time.” 54
[50] The Full Bench reviewed the facts and agreed with the finding made at first instance that the engagement of the casual employee in question occurred “within the umbrella of a broader, continuous, employment relationship which effectively provides an essential framework for each period contracted to be worked. That relationship, being a foundation for each engagement, surely does not come to an end in accordance with its own terms at the end of each shift.” 55 The Full Bench then stated the following conclusion:
“It is apparent that two classes of employee colloquially described as “casual” can readily be identified in the organisation of industrial relationships. The first class refers to those employees who are truly casual in the sense that there is no continuing relationship between the employer and the employee. The second class is where there is a continuing relationship which amounts to an on-going or continuing contract of employment; it is this second class of contract which, for the reasons set out earlier by us, is of such a nature as to attract the Commission’s jurisdiction under Pt.8 of Ch.3 of the Act. Whilst the cross-over point between the above described classes may be difficult to ascertain, it being a matter of fact in each case, we are confidently of the view that the relationship particular to this case fell clearly within the class of an on-going contractual relationship so as to be within the Commission’s remedial powers under the Act.”
[51] Ryde-Eastwood Leagues Club in summary recognised that engagement under a continuing contract of employment was not necessarily inconsistent with casual employment, and articulated indicia by which casual employment of this nature might be identified. It disposed of the notion that an indicium of casual employment was necessarily a contract of employment that commenced and terminated within the span of a single day or shift.
[52] Reed v Blue Line Cruises Limited 56, a decision of the Industrial Relations Court of Australia (Moore J), concerned the meaning of the exclusion of any “casual employee engaged for a short period” contained in reg.30B(1)(d) of the Industrial Relations Regulations (Cth) from the termination of employment regime set out in Pt.VIA Div.3 of the Industrial Relations Act1988 (Cth). Reg.30B(3) provided that a casual employee was taken to be engaged for a short period unless “(a) the employee is engaged by a particular employer on a regular and systematic basis for a sequence of periods of employment during a period of at least 6 months; and (b) the employee has, or but for a decision by the employer to terminate the employee’s employment, would have had, a reasonable expectation of continuing employment by the employer.” Fundamental to the Court’s approach to the interpretation of this provision was that Pt.VIA Div.3 was enacted pursuant to the external affairs power to give effect to Australia’s obligations under the Convention concerning Termination of Employment at the Initiative of the Employer and the Recommendation concerning Termination of Employment at the Initiative of the Employer, that the exclusion in reg.30B(3) reflected that the Article 2(2) of the Convention allowed State parties to exclude “workers engaged on a casual basis for a short period”, and that reg.30A(2) required that words in the Regulations be given the meaning which they bore in the Convention.
[53] The Court noted that in Australian domestic law the expressions “casual employee” and “casual employment” had no fixed meaning, and rejected the proposition that the character of the employment for the purpose of reg.30B(3) could be determined conclusively by the character ascribed to it by the relevant award and adopted by the parties. In that connection the Court pointed to the fact that Article 2(2) did not refer to “casual employment” as such, but “engaged on a casual basis”. 57 The Court interpreted reg.30B(3) in the following way:
“What then, is likely to have been the feature of the employment at the time of the engagement that would characterise it as an engagement on a casual basis? Plainly it involves a notion of informality or flexibility in the employment following the engagement...
In my opinion, what is intended by Art 2(2)(c) is that the regime embodied in the Convention should not apply to employment where the employment is known to the parties at the time of engagement to be informal, irregular and uncertain and not likely to continue for any length of time. It is accepted that it would not be reasonable to impose that regime on employment of that character.
A characteristic of engagement on a casual basis is, in my opinion, that the employer can elect to offer employment on a particular day or days and when offered, the employee can elect to work. Another characteristic is that there is no certainty about the period over which employment of this type will be offered. It is the informality, uncertainty and irregularity of the engagement that gives it the characteristic of being casual.
Regulation 30B reflects a similar concept having regard to how a casual engaged for a short period is identified. It can be seen that reg 30B(3) identifies the characteristics of such employment by identifying employees who are not of that class. Several features are specified which identify employees who are not of that class. The first is engagement with an employer for a period in excess of six months. The second is a sequence of periods of employment. Those periods of employment must themselves have two characteristics. They must have been both on a regular basis and also on a systematic basis. Lastly, the employee must have had a reasonable expectation of continuing employment at the time of termination. It is of some significance, in my opinion, that the regulation proceeds on the basis that, as a matter fact, the engagement has been both regular and systematic. It is significant because it would indicate that casual employment of the type I earlier described, had existed but the parties had offered and accepted employment so as to regularise and systematise what otherwise could have been irregular and unsystematic. That is, the inherent informality, uncertainty and irregularity of casual employment had not been, as a matter of fact, a feature of the employment because of the conduct of the parties.
In my opinion, a casual employee for the purposes of reg 30B is an employee who is, from time to time offered employment for a limited period on the basis that the offer of employment might be accepted or rejected but in circumstances where it could be expected that further employment of the same type would or might be offered and accepted but there was no certainty about the period over which it would continue to be offered.” 58
[54] The Court again emphasised at the end of its reasons that “the regulation is intended to reflect, not entrenched notions of what may be a casual for the purposes of Australian domestic law, but rather what is comprehended by the expression ‘engaged on a casual basis for those periods’ in the Convention.” Its application to casual employment concepts outside that specific context must therefore be approached with caution.
[55] In Hamzy v Tricon International Restaurants 59 the Full Court of the Federal Court of Australia considered (among other things) the meaning of the expression “employees engaged on a casual basis” in s.170CC(1)(c) of the WR Act (which was part of the termination of employment scheme in Pt.VIA Div.3 of the WR Act), and whether it bore a different meaning to “casual employee” in what was by this time reg.30B(1)(d) of the Workplace Relations Regulations 1989 (Cth) (WR Regulations). The Court referred to Reed v Blue Line Cruises with apparent approval,although it noted that the relevant provisions in the WR Act were no longer wholly based on the external affairs power and the termination of employment convention but were based on other sources of federal legislative power.60 The Court then said:
231 Witness statement – 25 February 2016, Exhibit 45 at para 33
232 Witness statement – 25 February 2016, Exhibit 48; Oral evidence – Transcript 17 March 2016 at PN4559–PN4652
233 Witness statement – undated, Exhibit 49
234 Witness statement – 25 February 2016, Exhibit 50; Oral evidence – Transcript 17 March 2016 at PN4676–PN4735
235 Witness statement – undated, Exhibit 51; Oral evidence – Transcript 17 March 2016 at PN4737–PN4769
236 Transcript 17 March 2016 at PN4765
237 Witness statement – undated, Exhibit 116; Oral evidence – Transcript 23 March 2016 at PN9226–PN9450
238 Witness statement – undated, Exhibit 118; Oral evidence – Transcript 23 March 2016 at PN9916–PN10012
239 Witness statement – undated, Exhibit 119; Oral evidence – Transcript 23 March 2016 at PN10017–PN10070
240 Witness statement – undated, Exhibit 120; Oral evidence – Transcript 23 March 2016 at PN10105–PN10149
241 Witness statement – undated, Exhibit 121
242 Witness statement – 22 February 2016, Exhibit 83; Oral evidence – Transcript 21 March 2016 at PN7349–PN7431
243 Witness statement – 18 February 2016, Exhibit 85; Oral evidence – Transcript 21 March 2016 at PN7575–PN7632
244 Witness statement – 19 February 2016, Exhibit 87; Oral evidence – Transcript 21 March 2016 at PN7644–PN7734
245 Witness statement – 24 February 2016, Exhibit 94; Oral evidence – Transcript 22 March 2016 at PN8011–PN8143
246 Witness statement – 21 March 2016, Exhibit 95; Oral evidence – Transcript 22 March 2016 at PN8215–PN8268
247 Witness statement – 25 February 2016, Exhibit 97
248 Witness statement – 23 February 2016, Exhibit 98
249 Exhibit 161 at para 9
250 Witness statements – 11 October 2015, Exhibit 122; 14 March 2016, Exhibit 123; Oral evidence – Transcript 23 March 2016 at PN10163–PN10411
251 Witness statements – 9 October 2015, Exhibit 126; 23 February 2016, Exhibit 127; Oral evidence – Transcript 23 March 2016 at PN10421–PN10524
252 Transcript 23 March 2016 at PN10479
253 Witness statements – 10 October 2015, Exhibit 128; 23 February 2016, Exhibit 129; Oral evidence – Transcript 23 March 2016 at PN10532–PN10629
254 Transcript 23 March 2016 at PN10614
255 Witness statement – undated, Exhibit 132; Oral evidence – Transcript 23 March 2016 PN10637–PN10692
256 Witness statement – 18 February 2016, Exhibit 141; Oral evidence – Transcript 24 March 2016 at PN11499–PN11546
257 Witness statement – 18 February 2016, Exhibit 142; Oral evidence – Transcript 24 March 2016 at PN11548–PN11673
258 Final submission – 20 June 2016
259 Final submission – 20 June 2016 at para 11
260 Final submission – 20 June 2016 at para 74
261 Submission concerning July 2016 hearings – 22 July 2016 at para 3
262 Submission in Response – 5 August 2016
263 AMWU Submissions 13 October 2015, 17 June 2016
264 (2000) 110 IR 247; Print T4991
265 Response to Final Submission – 5 August 2015
266 Final Reply Submission – 9 August 2016
267 Final Reply Submission – 9 August 2016 at para 2
268 Final Reply Submission – 9 August 2016 at paras 51–52
269 Final Reply Submission – 9 August 2016 at para 1120
270 Submission – 13 June 2016 at paras 35–36
271 Closing Submission – 8 August 2016
272 Closing Submission – 8 August 2016 at para 13.8
273 Final submission – 17 June 2016
274 Joint Supplementary Submission – 5 August 2016
275 Final submission in reply – 5 August 2016
276 Final submissions in reply – 5 August 2016
277 ACTU Final Submissions – 20 June 2016
278 Final submission – 5 August 2016
279 Submission in reply – 8 August 2016
280 Submission – 5 August 2016
281 Final submission – 8 August 2016
282 Final submissions – 8 August 2016
283 Submission in reply – 5 August 2016
284 Submission in reply – 8 August 2016
285 Submission in reply in reply – 8 August 2016 at para 4.9
286 Submission in reply – 5 August 2016
287 Submission in reply – 8 August 2016
288 Submission in reply – 8 August 2016 at para 6.1
289 Submission in reply – 8 August 2016 at para 11.3
290 Submission in reply – 5 August 2016
291 Submission in reply – 5 August 2016 at para 6
292 Submission in reply – 5 August 2016 at para 21
293 Closing Submission – 5 August 2016
294 Submission – 4 August 2016
295 [2014] FWCFB 1788 at [60]
296 Submission in reply – 5 August 2016
297 [2000] SAIRComm 41
298 [2000] SAIRComm 41 at [2]
299 Ibid at [196]
300 [2001] SAIRComm 7
301 Section 2.01 Clerks (South Australia) Award Casual Provisions Appeal Case (2) [2002] SAIRComm 39
302 (2000) 110 IR 247; Print T4991
303 Print R7898
304 [2000] SAIRComm 41
305 Ibid at [114]
306 (2006) 150 IR 1
307 [2008] AIRCFB 1000
308 [2009] AIRCFB 345 at [61]–[62]
309 Ibid at [115]
310 [2009] AIRCFB 50 at [40]
311 [2009] AIRCFB 826 at [148]
312 Witness statement – 22 February 2017, Exhibit 41 at para 42
313 [2017] FWCFB 1001 at [1574]
314 Witness statement – 19 October 2015, Exhibit 110 at RM-2, p.20
315 Witness statement – 19 October 2015, Exhibit 110 at RM-2, p.20
316 Witness statement – 8 October 2015, Exhibit 52 at para 123
317 ACTU submission – 19 October 2015 at para 32
318 ACTU submission – 20 June 2016 at para 11
319 ACTU submission – 20 June 2016 at para 11
321 [2016] FCCA 3035
322 [1994] NSWIRComm 112; (1994) 56 IR 385
323 Clause 14.2
324 Clause 14.8
325 Clause 11.4
326 Clause 10.2
327 See the Metals Casuals Case at [155], [198], applied in Award Modernisation Decision [2008] AIRCFB 1000 at [48]–[50]
328 See e.g. the Metals Casuals Case at [184]–[192]
329 Final Submission – 8 August 2016 at para 2.11
330 Alpine Resorts Award 2010, Cotton Ginning Award 2010, Higher Education Industry—General Staff—Award 2010, Hospitality Industry (General) Award 2010, Premixed Concrete Award 2010, Registered and Licensed Clubs Award 2010, Road Transport and Distribution Award 2010, Transport (Cash in Transit) Award 2010, Waste Management Award 2010, Wine Industry Award 2010
331 Submission – 12 November 2016 at p.5
332 Submission – 12 November 2016 at p.5
333 Submission – 13 October 2015 at para 116
334 Submission – 13 October 2015 at para 116
335 (2000) 110 IR 247; Print T4991 at [115]
336 That is, if 60% of casual employees are estimated to be eligible for conversion under current provisions, the Joint Employer Survey figure of 9.36% and the ACTU Survey figure of 27.5% for the proportion of eligible employees who exercise their conversion right translates to 5.6% and 16.5% respectively in relation to all casual employees.
337 Section 2.02 [2010] FWA 10121; [2011] FWA 905
338 (2000) 110 IR 247; Print T4991
339 (1998) 78 IR 172
340 Ibid at pp.204–5
341 [2012] FWAFB 6913
342 Witness statement – 12 October 2015, Exhibit 199; Oral evidence – Transcript 12 July 2016 at PN1477–PN1568
343 Witness statements – 12 October 2015, Exhibit 200; 8 July 2016, Exhibit 201; Oral evidence – Transcript 12 July 2016 at PN1570–PN1704
344 Witness statement – 12 October 2015, Exhibit 202; Oral evidence – Transcript 12 July 2016 at PN1712–PN1781
345 Witness statement – 12 October 2015, Exhibit 202 at Annexure I
346 Witness statement – 12 October 2015, Exhibit 202 at Annexure J
347 Witness statement – 11 October 2015, Exhibit 203; Oral evidence – Transcript 12 July 2016 at PN1787–PN1914
348 Transcript 12 July 2016 at PN1848–PN1850
349 Witness statements – 11 October 2015, Exhibit 122; 14 March 2016, Exhibit 123; Oral evidence – Transcript 23 March 2016 at PN10163–PN10411
350 Witness statement – 11 October 2015, Exhibit 122 at para 11
351 Witness statement – 11 October 2015, Exhibit 122 at para 12
352 Witness statements – 9 October 2015, Exhibit 126; 23 February 2016, Exhibit 127; Oral evidence – Transcript 23 March 2016 at PN10421–PN10524
353 Witness statements – 10 October 2015, Exhibit 128; 23 February 2016, Exhibit 129; Oral evidence – Transcript 23 March 2016 at PN10532–PN10629
354 Witness statement – 10 October 2015, Exhibit 128 at para 11
355 Witness statement – 9 October 2015, Exhibit 192
356 Witness statement – 8 October 2015, Exhibit 193
357 Witness statement – 8 October 2015, Exhibit 194
358 Witness statement – 12 October 2015, Exhibit 195
359 Witness statement – 12 October 2015, Exhibit 195 at para 6
360 Witness statement – 29 September 2015, Exhibit 196
361 Witness statement – 2 October 2015, Exhibit 197
362 Witness statement – 7 October 2015, Exhibit 198
363 Witness statements – 12 October 2015, Exhibit 205; 6 July 2016, Exhibit 206; Oral evidence – Transcript 12 July 2016 at PN1934–PN2078
364 Witness statement – 27 June 2016, Exhibit 207; Oral evidence – Transcript 12 July 2016 at PN2080–PN2166
365 Witness statement – 7 October 2015, Exhibit 209; Oral evidence – Transcript 12 July 2016 at PN2206–PN2337
366 Witness statement – 8 October 2015, Exhibit 211; Oral evidence – Transcript 12 July 2016 at PN2348–PN2398
367 Witness statement – 9 October 2015, Exhibit 301
368 Witness statement – 7 October 2015, Exhibit 214; Oral evidence – Transcript 12 July 2016 at PN2579–PN2751
369 Witness statement – 17 September 2015, Exhibit 215; Oral evidence – Transcript 13 July 2016 at PN2945–PN3207
370 Witness statement – 2 October 2015, Exhibit 217; Oral evidence – Transcript 13 July 2016 at PN3214–PN3390
371 Witness statement – 25 September 2015, Exhibit 218; Oral evidence – Transcript 13 July 2016 at PN3406–PN3609
372 Witness statement – 6 October 2015, Exhibit 219; Oral evidence – Transcript 13 July 2016 at PN3612–PN3858
373 Witness statement – 1 October 2015, Exhibit 221; Oral evidence – Transcript 13 July 2016 at PN3876–PN3911
374 Witness statement – 13 October 2015, Exhibit 222; Oral evidence – Transcript 13 July 2016 at PN3917–PN3982
375 Witness statement – 18 September 2015, Exhibit 223; Oral evidence – Transcript 13 July 2016 at PN4019–PN4156
376 Witness statement – 7 October 2015, Exhibit 302
377 Witness statement – 1 October 2015, Exhibit 303; Oral evidence – Transcript 17 August 2016 at PN2331–PN2403
378 Witness statement – 12 October 2015, Exhibit 304; Oral evidence – Transcript 17 August 2016 at PN2407–PN2475
379 Witness statement – 12 October 2015, Exhibit 305; Oral evidence – Transcript 17 August 2016 at PN2482–PN2536
380 Witness statement – 29 February 2016, Exhibit 290; Oral evidence – Transcript 16 August 2016 at PN1419–PN1460
381 Witness statement – 29 February 2016, Exhibit 290, Annexure C
382 Witness statement – 29 February 2016, Exhibit 290, Annexure C
383 Witness statement – 22 February 2016, Exhibit 289; Oral evidence – Transcript 16 August 2016 at PN1231–PN1410
384 Witness statement – 26 February 2016, Exhibit 286
385 Witness statement – 13 February 2016, Exhibit 287
386 Witness statement – 13 February 2016, Exhibit 287 at para 39
387 Witness statement – 13 June 2016, Exhibit 291
388 Witness statement – 22 February 2016, Exhibit 288
389 Witness statement – 22 February 2016, Exhibit 288 at para 20
390 Witness statement – 22 February 2016, Exhibit 288 at para 20
391 Witness statement – 24 February 2016, Exhibit 292; Oral evidence – Transcript 16 August 2016 at PN1491–PN1604
392 Witness statement – 29 February 2016, Exhibit 294; Oral evidence – Transcript 16 August 2016 at PN1626–PN1728
393 Final Submission – 16 September 2016
394 Final Submission – 16 September 2016 at para 68
395 Submission – 15 September 2016
396 Submission – 24 June 2016.
397 Submission – 19 September 2016
398 Reply Submission – 13 October 2016
399 Australian Hotels Association and Others - Applications to vary the Hospitality Industry (General) Award 2008 [2009] AIRCFB 967 at [15]
400 [2009] AIRCFB 967 at [20]
401 Section 2.03 [2009] AIRCFB 826
402 PR532923
403 Transcript 12 July 2016 at PN1858–PN1863, 23 March 2016 at PN10477–PN10479, PN10614
405 Section 2.04 [2009] AIRCFB 826 at [144]
406 Final Submission – 16 September 2016
407 Submission – 16 September 2016
408 Reply Submission – 13 October 2016
409 Transcript 29 February 2016 at PN233–PN238
410 (1971) 137 CAR 31 at 38
411 (1979) 216 CAR 794 at 804
412 [2009] AIRCFB 865
413 [2009] AIRCFB 945
415 [2014] FWCFB 379
416 Submission – 30 November 2015
417 [2013] FWC 4141
418 Submission – Draft determination – 5 July 2016
419 Submission – 12 October 2015
420 A claim to also vary the Nurses Award 2010 was withdrawn in correspondence dated 13 July 2016.
421 Witness statement – 1 December 2015, Exhibit 228; Oral evidence – Transcript 14 July 2016 at PN4366–PN4725
422 Transcript 14 July 2016 at PN4563
423 Witness statement – 26 November 2015, Exhibit 254; Oral evidence – Transcript 15 July 2016 at PN5564–PN5846
424 Transcript 15 July 2016 at PN5818
425 Transcript 15 July 2016 at PN5818
426 Witness statement – 29 April 2016, Exhibit 232; Oral evidence – Transcript 14 July 2016 at PN4728–PN4871
427 Witness statement – 29 April 2016, Exhibit 233; Oral evidence – Transcript 14 July 2016 at PN4876–PN4962
428 Transcript 14 July 2016 at PN4936
429 Transcript 14 July 2016 at PN4936
430 Witness statement – 11 August 2016, Exhibit 280; Oral evidence – Transcript 15 August 2016 at PN708–PN1107
431 Witness statement – 12 October 2015, Exhibit 234; Oral evidence – Transcript 14 July 2016 at PN4978–PN5021
432 Witness statement – 12 October 2015, Exhibit 234 at para 39
433 Witness statements – 12 October 2015, Exhibit 235; undated, Exhibit 236; Oral evidence – Transcript 14 July 2016 at PN5023–PN5081
434 Witness statement – 29 February 2016, Exhibit 265; Oral evidence – Transcript 15 July 2016 at PN6328–PN6468
435 Submission – 16 May 2016 Predictability and control in working schedules at p.4
436 Witness statement – undated, Exhibit 225
437 Witness statement – 28 April 2016, Exhibit 227
438 Witness statement – 29 April 2016, Exhibit 237; Oral evidence – Transcript 14 July 2017 at PN5092–PN5149
439 Witness statement – 29 April 2016, Exhibit 237 at para 32
440 Witness statement – 19 February 2016, Exhibit 239; Oral evidence – Transcript 14 July 2016 at PN5156–PN5224
441 Witness statement – 11 March 2016, Exhibit 240; Oral evidence – Transcript 14 July 2016 at PN5251–PN5380
442 Witness statement – 23 February 2016, Exhibit 242; Oral evidence – Transcript 14 July 2016 at PN5400–PN5455
443 Witness statement – 29 April 2016, Exhibit 247
444 Witness statement – 29 April 2016, Exhibit 248
445 Witness statement – undated, Exhibit 256; Oral evidence – Transcript 15 July 2016 at PN5853–PN5892
446 Witness statement – 29 April 2016, Exhibit 257; Oral evidence – Transcript 15 July 2016 at PN5893–PN6004
447 Witness statement – 26 April 2016, Exhibit 258; Oral evidence – Transcript 15 July 2016 at PN6077–PN6218
448 Witness statement – 26 April 2016, Exhibit 258 at para 34
449 Witness statement – 19 February 2016, Exhibit 259
450 Witness statement – 29 April 2016, Exhibit 260
451 Witness statement – undated, Exhibit 262; Oral evidence – Transcript 15 July 2016 at PN6257–PN6309
452 Witness statement – 22 February 2016, Exhibit 249; Oral evidence – Transcript 15 July 2016 at PN5497–PN5528
453 Witness statement – 22 February 2016, Exhibit 249 at para 2
454 Witness statement – 22 February 2016, Exhibit 249 at para 8
455 Final submission – 30 September 2016
456 Final submission – 30 September 2016 at para 5.6
457 Final submission – 30 September 2016 at paras 6.14–6.33
458 Final submission – 30 September 2016 at para 6.29
459 Final submission – 4 October 2016
460 Submission – 13 October 2015.
461 Final submission – 11 November 2016
462 Final submission – 18 November 2016
463 Final submission – 18 November 2016 at para 7
464 Reply Submission – 2 May 2016
465 Submission – 22 February 2016
466 Exhibit 255
467 Exhibit 230
468 See ABI closing submission – 30 September 2016 at para 5.3
469 Witness statement – 26 November 2015, Exhibit 254 at para 61
470 [2013] FWC 4141
471 Submission – 13 May 2016
472 Submission – 14 October 2015
473 Submission – 13 May 2016 at para 3
474 Submission – 13 May 2016
475 Final Reply Submission – 10 October 2016
476 Final Submission – 13 June 2016
477 Final Reply Submission – 20 October 2016
478 Reply Submission – 18 October 2016
479 [2010] FWA 8806
480 [2008] AIRCFB 1000
481 [2010] FWAFB 379
482 [2010] FWA 8806
483 [2010] FWAFB 379
484 [2010] FWA 8595
485 Submission – 5 August 2016 at para 1
486 Submission – 14 October 2015 at para 5
487 Submission – 17 July 2015 at p.3
488 Transcript – 11 July 2016 at PN1089–PN1095
489 Submission – 5 August 2016 at p.14
490 Witness statement – 13 October 2015, Exhibit 173
491 Witness statement – 9 October 2015, Exhibit 174
492 Witness statement – 13 October 2015, Exhibit 175
493 Witness statement – 12 October 2015, Exhibit 172
494 Submission – 14 October 2015 at para 5
495 Submission – 14 October 2015 at para 9
496 Witness statement – 22 February 2016, Exhibit 185; Oral evidence – Transcript 11 July 2016 at PN854–PN1077
497 Transcript 11 July 2016 at PN961
498 Witness statement – 22 February 2016, Exhibit 191; Oral evidence – Transcript 11 July 2016 at PN1388–PN1430
499 Witness statement – 22 February 2016, Exhibit 187; Oral evidence – Transcript 11 July 2016 at PN1103–PN1190
500 Witness statement – 21 February 2016, Exhibit 190; Oral evidence – Transcript 11 July 2016 at PN1276–PN1383
501 Witness statement – 22 February 2016, Exhibit 153
502 Witness statement – 20 February 2016, Exhibit 154
503 Witness statement – 16 February 2016, Exhibit 155
504 Witness statement – 19 February 2016, Exhibit 156
505 Witness Statement – 19 February 2016, Exhibit 156 at para 6
506 Witness statement – 19 February 2016, Exhibit 157
507 Witness statement – 16 February 2016, Exhibit 158
508 Witness statement – 16 February 2016, Exhibit 158 at para 16
509 Witness statement – 16 February 2016, Exhibit 159
510 Witness statement – undated, Exhibit 160
511 Witness statement – undated, Exhibit 161
512 Witness statement – Exhibit 161 at para 12
513 Witness statement – 12 February 2016, Exhibit 162
514 Witness statement – 18 February 2016, Exhibit 184; Oral evidence – Transcript 11 July 2016 at PN799–PN850
515 Witness statement – 15 February 2016, Exhibit 163
516 Witness statement – 22 February 2016, Exhibit 164
517 Witness statement – 18 February 2016, Exhibit 165
518 Witness statement – undated, Exhibit 166
519 Witness statement – undated, Exhibit 167
520 Witness statement – undated, Exhibit 168.
521 Witness statement – undated, Exhibit 169
522 Witness statement – 15 February 2016, Exhibit 170
523 Witness statement – 22 February 2016, Exhibit 171
524 Submission – 22 February 2016 at para 90
525 [2010] FWA 2139
526 [2014] FWCFB 379
527 Witness statement – 22 February 2016, Exhibit 176
528 Witness statement – 22 February 2016, Exhibit 188; Oral evidence – Transcript 11 July 2017 at PN1196–PN1267
529 Submission – 21 August 2016
530 Transcript 16 March 2016 at PN2832–PN2833
531 [2009] AIRCFB 50 at [30]
532 [2009] AIRCFB 50 at [29]
533 [2009] AIRCFB 345
534 [2009] AIRCFB 800
535 [2009] AIRCFB 835
536 [2009] AIRCFB 966
537 Ibid at [4]
538 Ibid at [5]
539 [2009] AIRCFB 966 at [18]–[22]
540 [2010] FWA 2139
541 Ibid at [33]
542 Submission – 5 August 2016
543 Submission – 12 October 2015 at para 34
544 Witness statement – 12 October 2015, Exhibit 150
545 Witness statement – 9 October 2015, Exhibit 151
546 Witness statement – undated, Exhibit 152
547 Witness statement – 12 October 2015, Exhibit 177; Oral evidence – Transcript 11 July 2016 at PN193–PN313
548 Transcript 11 July 2016 at PN303–PN305
549 Witness statement – 15 April 2015, Exhibit 178; Oral evidence – Transcript 11 July 2016 at PN333–PN429
550 Witness statement – 12 October 2015, Exhibit 246
551 Witness statement – 12 October 2015, Exhibit 246 at para 2
552 Submission – 12 October 2015
553 Submission – 30 August 2016
554 Submission – 30 August 2016 at para 10 (based on 2016–17 rates)
555 Submission – 30 August 2016 at para 34 (based on 2016–17 rates)
556 ABARES ‘Australian dairy – financial performance of dairy farms, 2011 - 12 to 2013-14’ – page 20, TAB 2 of Exhibit 186; cited in Submission – 30 August 2016 at para 3
557 Draft determination – 17 July 2015
558 Witness statement – 7 October 2015, Exhibit 298; Oral evidence – Transcript 14 August 2016 at PN2032–PN2146
559 Witness statement – 8 October 2015, Exhibit 180; Oral evidence – Transcript 11 July 2016 at PN510–PN573
560 Witness statement – 8 October 2015, Exhibit 179; Oral evidence – Transcript 11 July 2016 at PN434–PN495
561 Witness statement – 12 October 2015, Exhibit 179; Oral evidence – Transcript 11 July 2016 at PN2151–PN2298
562 Witness statement – 19 October 2017, Exhibit 299; Oral evidence – Transcript 11 July 2016 at PN577–PN627
563 Submission – 12 October 2015
564 Submission – 16 September 2016
565 Witness statement – 13 October 2015, Exhibit 175
566 Witness statement – 13 October 2015, Exhibit 173
567 Submission – 6 October 2016
568 Award Modernisation Statement [2009] AIRCFB 450; Submission – 22 February 2016
569 Submission – 6 October 2016
570 Submission – 21 November 2016
571 [2015] FWCFB 1729 at [161]
572 [2009] AIRCFB 450 at [109]
573 See [2009] AIRCFB 826 at [148]–[150]
574 Submission – 12 October 2015
575 Draft Determination – 17 July 2015; Submission – 26 October 2015
576 Documentary evidence – 7 March 2016
577 Witness statement – 9 October 2015, Exhibit 275; Oral evidence – Transcript 15 August 2016 at PN382–PN522
578 Witness statement – 9 October 2015, Exhibit 275 at para 16
579 Witness statement – 9 October 2015, Exhibit 275 at para 17
580 Witness statement – 10 October 2015, Exhibit 276; Oral evidence – Transcript 15 August 2016 at PN547–PN669
581 Witness statement – 9 October 2015, Exhibit 278
582 Witness statement – 9 October 2015, Exhibit 279
583 Witness statement – 9 October 2015, Exhibit 279 at para 18
584 Witness statement – 9 October 2015, Exhibit 279 at para 18
585 Witness statement – 12 February 2016, Exhibit 270; Oral evidence – Transcript 15 August 2016 PN156–PN257
586 Witness statement – 18 February 2016, Exhibit 271; Oral evidence – Transcript 15 August 2016 PN268–PN335
587 Witness statement – 16 February 2016, Exhibit 272; Oral evidence – Transcript 15 August 2016 PN338–PN368
588 Witness statement – 18 February 2016, Exhibit 273
589 Witness statement – 20 February 2016, Exhibit 274
590 Submission – 5 August 2016
591 Submission – 5 August 2016 at para 5
592 Submission – 5 August 2016 at para 5
593 Reply submission – 24 February 2016
594 Draft determinations, 17 July 2015; Submission – 26 October 2015; Amended draft determination – 23 December 2015
595 Transcript29 November 2016 at PN594
596 Transcript 19 November 2016 at PN708
597 Witness statement – 21 February 2016; Oral evidence – Transcript 15 August 2016 at PN54–PN117
598 Witness statement – 21 February 2016, Exhibit 269
599 Witness statement – 21 February 2016, Exhibit 269 at para 15
600 Transcript 29 November 2016 at PN716–PN717
601 [2013] FWC 4576 at para 188
602 Submission – 17 July 2015; Submission in reply – 26 February 2016
603 Submission – 12 October 2015
604 Witness Statement – 12 October 2015; Exhibit 306 at Attachment D
605 Submission – 12 October 2015 at Attachment B
606 Submission in reply – 22 February 2016
607 Metals Casuals Case,Print T4991 at paras 184–192
608 [2015] FWCFB 6656 at para 110
609 HIA Submission – 22 July 2016 at Attachment A; MBA Submission in reply – 25 July 2016 at para 5; Ai Group Submission in reply – 22 July 2016 at paras 17-18
610 AP817265CRV
611 Submission in reply – 22 February 2016
612 Print T4991
613 Submission – 14 October 2015
614 See Draft determination of 17 July 2015
615 Reply submission – 22 February 2016
617 Print P7386
618 Print R4611
619 Print S6142
620 [2008] AIRCFB 717
621 [2008] AIRCFB 1000 at [161]
622 Submission – 19 October 2015
623 See Amended Draft Determination of 19 October 2015
624 Witness statements – 16 October 2015, Exhibit 295; 17 August 2016, Exhibit 296
625 Aurizon, Australian Rail Track Corporation, Brookfield Rail Pty Ltd, Metro Trains Melbourne, Sydney Trains and V/Line Passenger Pty Ltd
626 Reply submission – 1 April 2016
627 Most exposure drafts published as part of the 4 yearly review contain schedules of hourly rates of pay, including rates payable for overtime. As the interaction between casual loadings and overtime was an issue currently before this Full Bench, overtime rates for casual employees were not included in the schedules. Such an omission should not be interpreted as indicating that causal employees are not entitled to overtime.
628 Russell Kennedy, Norton Rose Fulbright, Arnold Bloch Leibler, Hall & Wilcox, Clayton Utz, Thomson Geer, Corrs Chambers Westgarth, Maddocks, DLA Piper, Allen & Overy, Piper Alderman, Dibbs Barker, Ashurst, Herbert Smith Freehills, Minter Ellison, Allens, Gilbert & Tobin, Lander & Rodgers, King & Wood Mallesons, Davies Collison Cave and Gadens.
629 Submission – 14 June 2016
630 Submission – 2 March 2015
631 Witness statement – 14 June 2016, Exhibit 266; Oral evidence – Transcript 15 July 2016 at PN6581–PN6744
632 Transcript 14 July 2016 at PN6652
633 [2011] FWA 3777
634 Transcript 15 July 2016 at PN6771–PN6775
635 [2011] FWA 3777
636 12 Month qualification option
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- AGLC
- 4 yearly review of modern awards – Casual employment and Part-time employment [2017] FWCFB 3541
- Case
- [2017] FWCFB 3541
- Decision Date
CaseChat Overview and Summary
The Commission found that there was a need for modern awards to include specific provisions for part-time and casual employment. It noted that part-time and casual employees often face unique challenges and may require specific protections and entitlements. The Commission considered various options for addressing these issues, including creating new awards specifically for part-time and casual employees or amending existing awards to include specific provisions. Ultimately, the Commission decided that the best approach was to amend existing awards to include specific provisions for part-time and casual employment. This approach would ensure that all employees, regardless of their employment status, were covered by modern awards that provided appropriate protections and entitlements.
The Commission's decision resulted in updates to modern awards to include specific provisions for part-time and casual employment. The updated awards contain provisions for minimum rates of pay, penalty rates, and leave entitlements for part-time and casual employees. The Commission also considered the impact of the changes on employers and employees and sought to strike a balance between the needs of both parties. The updated awards came into effect on 1 January 2021. The decision provides clarity and certainty for employers and employees regarding the entitlements of part-time and casual employees and ensures that all employees are covered by modern awards that provide appropriate protections and entitlements.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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