4 yearly review of modern awards—Common issue—Award Flexibility
[2015] FWCFB 4466
•16 JULY 2015
| [2015] FWCFB 4466 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.156 – 4 yearly review of modern awards
(AM2014/300)
JUSTICE ROSS, PRESIDENT | MELBOURNE, 16 JULY 2015 |
4 yearly review of modern awards – common issue – award flexibility – make-up time – time off in lieu
CONTENTS
Chapters | Page | Paragraph | |
1. | Introduction and background | 3 | [1] |
2. | The 1994 Family Leave Test Case decisions | 7 | [25] |
3. | Claims | ||
3.1 Ai Group claim | 15 | [43] | |
3.2 AMWU claim | 17 | [49] | |
4. | Submissions | 18 | [53] |
5. | Consideration | ||
5.1 General | 25 | [92] | |
5.2 Preliminary jurisdictional points | 26 | [95] | |
5.3 AMWU claims—the merits | 39 | [145] | |
5.4 Ai Group’s claim—the merits | 45 | [184] | |
6. | Conclusion and next steps | 65 | [294] |
Attachment A—Awards proposed to be varied to insert the TOIL clause | 70 | ||
Attachment B—Awards proposed to be varied by deleting existing TOIL provision and replacing with test case TOIL clause | 71 | ||
Attachment C—Awards proposed to be varied to insert make-up time clause | 72 | ||
Attachment D—Index of material | 74 | ||
Attachment E—Model Flexibility Term | 76 | ||
Attachment F—Modern awards with overtime provisions | 78 | ||
ABBREVIATIONS
ACCI | Australian Chamber of Commerce and Industry |
Act | Fair Work Act 2009 |
ACTU | Australian Council of Trade Unions |
Ai Group | Australian Industry Group |
AIRC | Australian Industrial Relations Commission |
AMWU | “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) |
AWRS | Australian Workplace Relations Study |
AWU | The Australian Workers’ Union |
ANMF | Australian Nursing and Midwifery Federation |
BOOT | better off overall test |
CECL | Childcare and Early Childhood Learning, Inquiry Report, Productivity Commission 2014 |
CFMEU (C&G) | Construction, Forestry, Mining and Energy Union (Construction and General Division) |
CFMEU (M&E) | Construction, Forestry, Mining and Energy Union (Mining and Energy Division) |
Commission | Fair Work Commission |
Family Leave Test Case | Family Leave Test Case – Stage 1 – November 1994 decision – (1994) 57 IR 121 |
HSU | Health Services Union of Australia |
IFA | individual flexibility arrangement |
MBA | Master Builders Australia |
MUA | The Maritime Union of Australia |
NES | National Employment Standards |
NFF | National Farmers’ Federation |
October 1995 Third Safety Net decision | Third Safety Net Adjustment & Section 150A Review—October 1995 decision (1995) 61 IR 236 |
OECD | Organisation for Economic Co-operation and Development |
PIAA | Printing Industries Association of Australia |
Review | 4 yearly review of modern awards |
TCFUA | Textile, Clothing and Footwear Union of Australia |
TOIL | time off in lieu |
Transitional Review | Transitional review of modern awards under Item 6 of Schedule 5 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 |
1. Introduction and background
[1] Section 156 of the Fair Work Act 2009 (the Act) requires the Fair Work Commission (the Commission) to review all modern awards every four years. In a Statement issued on 17 March 20141 the Commission stated that the first 4 yearly review of modern awards (the Review) would comprise of an Initial stage, dealing with jurisdictional issues, a Common issues stage and an Award stage. In that Statement, award flexibility was listed as a common issue to be dealt with as part of the review. Conferences were held on 17 November 2014, 12 December 2014 and 20 February 2015 to determine the scope and indicative timetable for dealing with this matter as a common issue. Directions were then issued for the hearing and determination of the issues.
[2] Two groups of claims are advanced in the context of the award flexibility common issue. The Australian Industry Group (Ai Group) has made two claims in this matter. The first claim seeks to insert a model time off in lieu (TOIL) of payment for overtime clause into a number of modern awards and the second set of proposed variations relate to ‘make-up time’ provisions. The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) seeks to vary the provisions relating to TOIL in a number of awards to provide for the accrual of TOIL at the ‘time for penalty’ rate rather than on an ‘hour for hour’ basis.2
[3] Before we turn to the merits of these claims we propose to set out some of the background to these proceedings.
[4] We begin by making some brief observations about the legislative context for the Review. We note that these issues are canvassed in more detail in the Preliminary Jurisdictional Issues decision of 17 March 2014. 3 We adopt and apply that decision.
[5] The Act provides that the Commission must conduct a 4 yearly review of modern awards (s.156(1)). Subsection 156(2) deals with what has to be done in a 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.”
[6] Subsections 156(3) and (4) deal with the variation of modern award minimum wages in a Review and are not relevant for present purposes.
[7] Subsection 156(5) provides that in a Review each modern award is reviewed in its own right, however, this does not prevent the Commission from reviewing two or more modern awards at the same time.
[8] The general provisions relating to the performance of the Commission’s functions apply to the Review. Sections 577 and 578 are particularly relevant in this regard. In conducting the Review the Commission is able to exercise its usual procedural powers, contained in Division 3 of Part 5–1 of the Act. Importantly, the Commission may inform itself in relation to the Review in such manner as it considers appropriate (s.590).
[9] The modern awards objective is central to the Review. The modern awards objective applies to the performance or exercise of the Commission’s ‘modern award powers’, which are defined to include the Commission’s functions or powers under Part 2–3 of the Act. The Review function in s.156 is in Part 2–3 of the Act and so involves the performance or exercise of the Commission’s ‘modern award powers’. It follows that the modern awards objective applies to the Review.
[10] The modern awards objective is set out in s.134 of the Act, 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 modern awards objective is directed at ensuring that modern awards, together with the National Employment Standards (NES), provide a “fair and relevant minimum safety net of terms and conditions” taking into account the particular considerations identified in paragraphs 134(1)(a) to (h) (the s.134 considerations). No particular primacy is attached to any of the s.134 considerations and not all of the matters identified will necessarily be relevant to a particular proposal to vary a modern award. 4 A matter which the Commission is directed to ‘take into account’ is a relevant consideration in the Peko-Wallsend5 sense of matters which the decision maker is bound to take into account and treat as a matter of significance in the decision making process.6
[12] The modern awards objective is very broadly expressed. 7 In National Retail Association v Fair Work Commission8a Full Court of the Federal Court made the following observation about the modern awards objective:
“It is apparent from the terms of s 134(1) that the factors listed in (a) to (h) are broad considerations which the FWC must take into account in considering whether a modern award meets the objective set by s 134(1), that is to say, whether it provides a fair and relevant minimum safety net of terms and conditions. The listed factors do not, in themselves, however, pose any questions or set any standard against which a modern award could be evaluated. Many of them are broad social objectives. What, for example, was the finding called for in relation to the first factor (“relative living standards and the needs of the low paid”)? ...” 9
[13] There is a degree of tension between some of the s.134 considerations. The Commission’s task is to balance the various considerations and ensure that modern awards, together with the NES, provide a fair and relevant minimum safety net of terms and conditions.
[14] One of the matters the Commission is required to take into account is the need to ensure a ‘stable’ modern award system (s.134(1)(g)). The need for a stable modern award system supports the proposition that a party seeking to vary a modern award in the context of the Review must advance a merit argument in support of the proposed variation. The extent of the merit argument required will depend on the variation sought. 10
[15] The Review is broader in scope than the Transitional Review of modern awards 11 completed in 2013 and is the first full opportunity to consider the content of modern awards. However, the broad scope of the Review does not obviate the need for a merit argument to be advanced in support of a proposed variation.
[16] The proponent of a variation to a modern award must demonstrate that if the modern award is varied in the manner proposed then it would only include terms to the extent necessary to achieve the modern awards objective (see s.138). What is ‘necessary’ in a particular case is a value judgment based on an assessment of the s.134 considerations having regard to the submissions and evidence directed to those considerations. 12
[17] Modern awards are dealt with in Part 2–3 of Chapter 2 of the Act. In addition to the modern awards objective in s.134 there is another provision which is particularly relevant for present purposes. Section 144(1) provides that each modern award must include a ‘flexibility term’ enabling an employee and his or her employer to agree on an individual flexibility arrangement (IFA), varying the effect of the award in relation to the employee and the employer. The stated objective of such arrangements is ‘to meet the genuine needs of the employee and employer’.
[18] The former Australian Industrial Relations Commission (AIRC) was required to prepare a model flexibility clause as part of the award modernisation process governed by Part 10A of the Workplace Relations Act1996. On 20 June 2008 a Full Bench of the AIRC issued a decision 13 which included the determination of the model flexibility clause. The model clause was modified in December 200814 and April 200915 to take account of submissions from interested parties, amendments to the Ministerial Request under s.576A of the Workplace Relations Act 1996 (Cth) and legislative change. The model term was subsequently varied in the Transitional Review.16
[19] In the present proceedings the Australian Council of Trade Unions (the ACTU) and a number of unions contend that Ai Group’s proposed variations are unnecessary and that the flexibility sought can be obtained through the model flexibility term. It is also contended by the Construction, Forestry, Mining and Energy Union (Construction and General Division) (CFMEU (C&G)) that the flexibility term inserted into modern awards pursuant to s.144(1) is the only permitted means of providing for any individual flexibility agreement between an employee and an employer. 17 We deal with these arguments later in our decision.
[20] In performing functions and exercising powers under a part of the Act (including Part 2–3: Modern Awards) the Commission must also take into account the object of the Act and any particular objects of the relevant part (see s.578(a)). The object of Part 2–3 is expressed in s.134, the modern awards objective, to which we have already referred. The object of the Act is set out in s.3.
[21] As we have mentioned, the modern awards objective is that modern awards, together with the NES provide a fair and relevant minimum safety net. The NES are set out in Part 2–2 of the Act.
[22] There is one aspect of the NES which is particularly relevant for present purposes – the right to request flexible working arrangements pursuant to s.65. As we shall see, a number of unions contend that Ai Group’s proposed model terms in relation to TOIL and make-up time are inconsistent with s.65 and ‘detrimental’ to employees (within the meaning of s.55(4)). On that basis it is submitted that the claimed provisions cannot be inserted into modern awards. We deal with that argument, and the terms of s.65, later in this decision.
[23] In dealing with matters arising in the Review the Commission will have regard to the relevant historical context and will take into account previous decisions relevant to any contested issue. The context in which those decisions were made will also need to be considered, as the Full Bench observed in the Preliminary Jurisdictional Issues decision:
“ ... In conducting the Review it is appropriate that the Commission take into account previous decisions relevant to any contested issue. The particular context in which those decisions were made will also need to be considered. Previous Full Bench decisions should generally be followed, in the absence of cogent reasons for not doing so.” 18
[24] The above observation is particularly relevant in the present proceedings as Ai Group’s claims are said to be based on model clauses determined by a Full Bench of the AIRC in the 1994 Family Leave Test Case decisions (the Family Leave Test Case). We deal first with those decisions and the particular context in which they were made first, before turning to the claims before us.
2. The 1994 Family Leave Test Case decisions
[25] As Ai Group readily concedes, the merits of its claim rely ‘very heavily on the logic and findings’ 19 of the Family Leave Test Case. Ai Group also submits that the context of the Family Leave Test Case decisions ‘remain salient in current context and they give great force to our claim’.20
[26] The Family Leave Test Case was determined in two stages:
● Family Leave Test Case – Stage 1 – November 1994 decision (the Stage 1 decision); 21 and
● Personal/Carer’s Leave Test Case – Stage 2 – November 1995 decision (the Stage 2 decision). 22
[27] As will become apparent, and contrary to Ai Group’s submission, the model TOIL and make-up time terms proposed by Ai Group do not reflect the outcome of the Family Leave Test Case. In this regard it is important to understand the sequence of decisions dealing with the content of the model terms determined in the Family Leave Test Case. For reasons which will become apparent we propose to focus on the model TOIL term.
[28] At the outset we would observe that the package of measures introduced by these decisions was intended to strike an appropriate balance between a number of objectives. As the Full Bench of the AIRC observed in the Stage 2 decision:
“The complete package of measures represents, in our view, an appropriate balance between the following objectives:
● helping workers to reconcile their employment and family responsibilities consistent with the Commission’s obligations under s 93A of the Act to take account of the principles embodied in the Family Responsibilities Convention;
● promoting enterprise bargaining by maintaining an incentive to bargain;
● introducing greater flexibility into the award system consistent with the Commission’s statutory obligation to ensure that ‘‘awards are suited to the efficient performance of work according to the needs of particular industries and enterprises, while employees’ interests are also properly taken into account’’ (s 88A(c));
● the need to have regard to the economic impact of our decision pursuant to the Commission’s obligations under s 90 of the Act.
The measures we have introduced also reflect the legislative intention that the award system needs to change in response to changed industrial needs. Such an approach is also consistent with the views expressed by the Commission in the September 1994 Safety Net Adjustments and Review decision (at 146; p 52).
In this regard we wish to emphasise that this test case decision will result in the variation of the safety net of minimum wages and conditions of employment. The award safety net is intended to underpin bargaining. As such, variations in the safety net should not, in our view, pre-empt the outcome of bargaining. Rather such award variations should follow outcomes in the bargaining process.
On this basis the measures we have decided to implement can be reviewed over time having regard to prevailing industrial, economic and social circumstances.” 23
[29] The issues arising from the Family Leave Test Case were dealt with in two stages. The Stage 1 decision, which is the most relevant for present purposes, extended access to sick leave so that employees could use their sick leave entitlement to provide care or support for an ill member of the employee’s family and introduced a range of facilitative provisions (including TOIL and make-up time). The form of the TOIL provision was not determined in the Stage 1 decision and the Full Bench referred the settlement of the orders arising from its decision to Vice President Ross, following a conference of the parties. The orders were the subject of a decision by the Vice President on 3 February 1995, 24 in which his Honour dealt with aspects of the TOIL model clause. Of particular relevance to the present proceedings is that part of his Honour’s decision dealing with the rate of compensation for overtime work:
“The second point in dispute concerns the rate of compensation for overtime work.
The ACTU argued that time-off in lieu should be at overtime rates, that is if the overtime rate is time and a half then one and a half hours time-off accrues for every overtime hour worked. In support of their submission the ACTU relied on a preliminary FATEXT search which it was submitted showed that "of the awards which currently provide time-off in lieu the overwhelming majority provide such time-off at overtime rates". [ACTU submission at p.7] Further it was submitted that the awards which provide time-off in lieu of overtime at ordinary rates could be distinguished on the following grounds:
● the time-off in lieu provisions are very restrictive in their application and are not able to be taken simply at the election of the employee;
● overtime hours on weekends and public holidays accrue at overtime rates; and
● time-off at overtime rates generally came about under the structural efficiency principle.
It was also argued that in the limited number of awards which provide time-off in lieu at ordinary time employees usually retained the right to be paid out at overtime rates.
The ACCI, ACM, MTIA and the States of NSW, Victoria and WA opposed the ACTU's proposal and submitted that time-off in lieu should be taken at the rate of one hour for each hour worked. In support it was argued that such a proposal would introduce greater flexibility but with the protection that it's implementation could only be by employee election with the consent of the employer. The ACCI submission concluded that:
‘In these circumstances we see no need to restrict the extent of employee and employer agreement by requiring overtime rates, something which can be done on an overaward basis.’ [ACCI written submission at p.7]
In my view the objectives of the Test Case decision can best be met by providing that time-off in lieu be at ordinary time. I would however add two limitations:
● existing award provisions dealing with time-off in lieu of overtime should not be amended until this matter is finally determined by the Commission after the August 1995 proceedings; and
● the order will ensure that employees retain the right to be paid out at overtime rates.
The approach adopted will assist employees in reconciling their employment and family responsibilities while maintaining an incentive to bargain and introducing greater flexibility into the award system.” 25
[30] The next relevant decision in the sequence is the Third Safety Net Adjustment & Section 150A Review—October 1995 decision (the October 1995 Third Safety Net decision). 26 In that decision the AIRC set out a number of general propositions in relation to the nature and extent of facilitative provisions.27 These general propositions were subsequently adopted in the Family Leave Test Case Stage 2 decision, as is apparent from the following extract from that decision:
“In the course of these proceedings a range of issues has been raised in relation to the facilitative provisions included in Stage 1 and the provisions proposed to be introduced in Stage 2 ...
In the Third Safety Net Adjustment & Section 150A Review—October 1995 decision (1995) 61 IR 236 at 255–257; Print M5600 at pp 27–30, the Commission made five points in relation to the nature and extent of facilitative provisions.
1. At this stage the Commission intends to adopt an approach to the insertion of facilitative provisions into awards which reflects the fact that such clauses are self-executing. Facilitative provisions need to be distinguished from other mechanisms which may be used to introduce flexibility at the enterprise. Enterprise flexibility clause agreements, certified agreements, enterprise flexibility agreements, consent awards or consent award variations all involve an assessment by the Commission of both the process leading to such agreements and their impact on the employees covered by them. By contrast the use of facilitative provisions at the enterprise level is not subject to Commission scrutiny.
2. Facilitative provisions should continue to protect employees while allowing appropriate flexibility for individual enterprises in the way an award clause is implemented.
3. Facilitative provisions should not be a device to avoid award obligations because the Commission is obliged to ensure, among other things, that “employees are protected by awards that set fair and enforceable minimum wages and conditions of employment that are maintained at a relevant level [s 88A].” (Review of Wage Fixing Principles—August 1994 decision (1994) 55 IR 144 at 157; Print L4700 at p 33.)
Neither should the adoption of a facilitative provision result in unfairness to the employees covered by the award. Given the lack of Commission scrutiny in relation to the operation of these clauses, a proposal that a facilitative provision should not operate to reduce ordinary time earnings is inadequate to ensure that in all cases unfairness to employees will not occur.
In order to provide the necessary protection and prevent unfairness the Commission will generally only insert facilitative provisions which require majority agreement at the enterprise level before they become operative. For example:
‘The employer and the majority of employees at an enterprise may agree to establish a system whereby the employer and individual employees may agree to take an RDO at any time despite any award provision to the contrary.’
In essence facilitative provisions should require a majority decision to introduce a particular form of flexibility which may then be utilised by agreement between the employer and individual employees.
Once a majority decision has been taken its terms should, in order to provide a record of them, be set out in the time and wages records kept in accordance with regs 131A-131R of the Industrial Relations Regulations (Cth).
The Commission considers that these safeguards are appropriate given the self-executing nature of facilitative provisions and the fact that facilitative provisions have a capacity to directly or indirectly affect all employees at an enterprise.
In circumstances where the Commission has decided that it is appropriate that a facilitative provision requires the agreement of a majority of employees at an enterprise prior to the introduction of a particular type of flexibility, then the relevant provisions should also provide that:
(a) unions which are both party to the relevant award and who have members employed at the particular enterprise must be informed of the intention to utilise the facilitative provision and be given a reasonable opportunity to participate in negotiations regarding its use;
(b) participation by a union in this process does not mean that the consent of the union is required prior to the introduction of the agreed flexibility arrangements at the enterprise. Unions will not have a right to veto the introduction of such arrangements;
(c) union involvement and the requirement for majority consent are only required at the time a decision is made to introduce a particular form of flexibility at the enterprise. Thereafter the only requirement is agreement between the employer and an individual employee to access the agreed flexibility.
The Commission may also decide to establish a monitoring process under which a particular facilitative provision is, after a reasonable period, reviewed to consider its impact in practice.
Such a process can be used to ensure that the practical operation of a facilitative provision is:
- not unreasonably impeding the introduction of greater flexibility at the enterprise level; or
- resulting in unfairness to employees.
If these objectives are not being met then the provision may be amended.
4. Award parties are not required to include facilitative provisions in all award clauses. An award-by-award process is preferable as it allows the needs and circumstances of the enterprises and employees covered by the award to be properly taken into account in accordance with s 88A of the Act. However all award parties must specifically address the use of facilitative provisions as a means of making their awards more relevant and better suited to the needs of individual enterprises. In this regard, award parties should consider giving priority to an examination of award provisions which affect the organisation of work or the efficiency of enterprises covered by the award.
5. Facilitative provisions should be used to promote the efficient organisation of work at the enterprise level and be designed to avoid the prescription of matters in unnecessary detail.
We intend to apply these guidelines to the issues before us. As the October 1995 Review decision was handed down after the conclusion of the proceedings before us, we will provide the parties with an opportunity to make further submissions in relation to the application of these guidelines to the particular facilitative provisions dealt with in this decision. This can be done during the proceedings to settle the orders arising from this decision.” 28
[31] Two other aspects of the Stage 2 decision are particularly relevant for present purposes.
[32] First, the Full Bench dealt with a general submission advanced by the ACTU in relation to the scope of the facilitative provisions. The ACTU had submitted that the facilitative provisions should only be available in the context of leave to care for ill family members. The Full Bench rejected the limitation proposed in the following terms:
“In the November 1994 decision we did not intend that the facilitative provisions determined would be restricted in the manner proposed by the ACTU. That decision states that the package of measures decided upon were intended to represent an appropriate balance between a number of objectives including (146; p 39):
‘ ... introducing greater flexibility into the award system consistent with the Commission’s statutory obligation to ensure that ‘awards are suited to the efficient performance of work according to the needs of particular industries and enterprises, while employees interests are also properly taken into account’ [section 88A(c)].’
The November 1994 decision also envisaged that the range of facilitative measures to be introduced would facilitate the introduction of greater flexibility at the workplace level. In particular the Commission stated (148; pp 41-42):
‘The approach we have adopted is consistent with the submissions of ACCI that the award system at present inhibits the capacity of employers and employees to reconcile work and family responsibilities. ACCI submitted that awards should be amended in a number of respects, including to provide for more flexibility in the use of annual leave entitlements, to amend award provisions which prevent employers allowing employees to make-up time at ordinary time rates at a time agreed between them, to remove restrictions on part-time work, provide adequate flexibility in rostered days off, and to introduce fully flexible working hours.
We also note that the measures to be introduced will facilitate the introduction of greater flexibility at the workplace level and a number of the studies we have referred to reported that employees saw additional flexibility as the primary means of reconciling work and family responsibilities.’
The limitation proposed by the ACTU would mean that employees would have no access to the facilitative provisions for reasons other than the illness of a member of the employee’s household or immediate family. If this limitation were adopted employees would not have access to the flexibilities provided in the package of measures we have determined for the purpose of attending, for example, school events and curriculum days. This would be contrary to existing practice. As noted in the November 1994 decision the most common method used by employees with dependent children to arrange time off to attend such events was flexible work arrangements. The evidence submitted in the Stage 1 proceedings was that two out of three employees with dependent children arranged time off for these child related activities by using make-up time, flexitime or rostered days off (140; pp 29-30).
We reject the limitation proposed for the reasons given.” 29
[33] Second, the Full Bench dealt with the form of the TOIL provision arising from the Stage 1 decision. As we have set out above, in the decision settling the relevant orders from the Stage 1 decision Vice President Ross stated that the rate of compensation of overtime worked in the context of TOIL would need to be reconsidered in the Stage 2 proceedings. In the Stage 2 proceedings the ACTU argued that TOIL should be at overtime rates, that is if the overtime rate is time and a half then one and a half hours’ time off accrues for every overtime hour worked. The ACTU also sought clarification in relation to the level of protection afforded to existing award conditions prescribing TOIL of payment for overtime at overtime rates. The Full Bench dealt with these submissions, as follows:
“We have not been persuaded to depart from the form of order determined by Vice President Ross. In relation to the issue raised by the ACTU concerning the level of protection to be afforded to existing award provisions we have decided that such provisions should be retained. Accordingly where an award currently provides for time off in lieu of payment for overtime at overtime rates then that part of the package we have determined should not be inserted into the award in question. In this regard the approach adopted by the Commission in the variation of the Victorian Local Authorities Interim Award 1991 (Print M2791) is appropriate.” 30
[34] The TOIL provision in the draft framework order attached to the Stage 2 decision was in the following terms: 31
“5.1 An employee may elect, with the consent of the employer, to take time off in lieu of payment for overtime at a time or times agreed with the employer.
5.2 Overtime taken as time off during ordinary time hours shall be taken at the ordinary time rate, that is an hour for each hour worked.
5.3 An employer shall, if requested by an employee, provide payment, at the rate provided for the payment of overtime in the award, for any overtime worked under par 5.1 of this subclause where such time has not been taken within four weeks of accrual.”
[35] In the decision settling the orders arising from the Stage 2 decision 32 Senior Deputy President Marsh decided, in accordance with the view expressed by the Full Bench in the Stage 2 decision, awards that had not already been varied to provide for make-up time or TOIL should include the general provisions relating to facilitative clauses determined in the October 1995 Third Safety Net decision.33
[36] The application of the observations in the October 1995 Third Safety Net decision to the model TOIL and make-up time clauses arising from the Family Leave Test Case was complicated by the fact that some awards had been varied prior to the October 1995 Third Safety Net decision. In the decision setting the orders arising from the Stage 2 decision Senior Deputy President Marsh dealt with these issues in the following way:
“Turning to existing facilitative clauses, namely, annual leave, time off in lieu and make up time. As set out above many awards had been varied for the First Stage of family leave, prior to the Third Safety Net and Section 150A Review decision being handed down. Guidance as to whether or not these provisions should be distributed in light of the latter decision is found in the Third Safety Net and Section 150A Review decision which states in relation to the guidelines as quoted above and repeated here:
‘The safeguards we have provided in relation to facilitative provisions are intended to apply to applications to insert a facilitative provision into an award. They are not intended to automatically apply to existing facilitative provisions. A party wishing to vary an existing provision to incorporate any of the protections we have referred to will bear the onus of establishing that such a protection is necessary in all the circumstances.’
I consider that nothing has been put to justify a departure from this procedure to apply to any existing facilitative clause including those provided for in the First Stage Family Leave proceedings. It therefore forms part of this decision that the employers’ draft will apply to awards which have had facilitative clauses inserted as a result of the First Stage decision. At the time of hearing an application to vary the award for the Second Stage a party can seek to vary the existing provisions to incorporate any of the protections provided for in the Full Bench decision if such protections are not already provided. In doing so the party will bear an onus of establishing that such protection is necessary given the nature and circumstances of the matter.
Equally, a party seeking to vary an existing facilitative clause which already provides for the protections currently provided for in the Full Bench decision, will bear an onus in establishing that particular grounds warrant an individual member exercising his/her discretion in favour of granting the application.
In relation to awards which have not yet been varied to provide for facilitative clauses, the general position of the Commission as set out in the Full Bench decision and reproduced in this decision will apply. Any party seeking a departure from the test case provisions must bear the onus to justify that the departure is necessary in the circumstances of the matter.” 34
[37] The Senior Deputy President then dealt with a number of specific proposals in relation to the facilitative provisions arising from the Stage 2 decision (including TOIL and make-up time). In the course of finalising the orders arising from this decision her Honour decided as follows:
“(i) to include a majority consent provision whereby the employer and the majority of employees at the enterprise may agree to introduce (relevantly) make up time or TOIL which may then be utilised by agreement between the employer and individual employee; 35
(ii) to include the following provisions in (relevantly) the model TOIL and make up time clauses:
‘(a) unions which are both party to the relevant award and who have members employed at the particular enterprise must be informed of the intention to utilise the facilitative provision and be given a reasonable opportunity to participate in negotiations regarding its use;
(b) participation by a union in this process does not mean that the consent of the union is required prior to the introduction of the agreed flexibility arrangements at the enterprise. Unions will not have a right to veto the introduction of such arrangements;
(c) union involvement and the requirement for majority consent are only required at the time a decision is made to introduce a particular form of flexibility at the enterprise. Thereafter the only requirement is agreement between the employer and an individual employee to access the agreed flexibility’ 36; and
(iii) make provision for recording facilitative provisions in the ‘time and wages book’ and, in particular, the wording to be reflected in the order will be consistent with the wording of the Stage 2 decision, that is:
‘Once a decision has been taken its terms should be set out in the time and wages record kept in accordance with regn 131A-131R of the Industrial Relations Regulations’.” 37
[38] The parties were directed to submit draft orders consistent with her Honour’s decision and the awards before her Honour were subsequently varied to give effect to her decision. One of the awards so varied was the Re Laundry Industry (Victoria) Interim Award 1993. The relevant parts of that variation order which deal with TOIL are reproduced below:
“8 Time Off in Lieu of Payment
Notwithstanding provisions elsewhere in the award, the employer and the majority of employees at an enterprise may agree to establish system of time off in lieu of overtime provided that;
8.1 An employee may elect, with the consent of the employer, to take time off in lieu of payment for overtime at a time or times agreed with the employer.
8.2 Overtime taken as time off during ordinary time hours shall be taken at this ordinary time rate, that is an hour for each hour worked. (unless otherwise provided elsewhere in the award)
8.3 An employer shall if requested by an employee, provide payment at the rate provided for the payment of overtime as prescribed in clause 11 of this award, for any overtime worked under this subclause where such time has not been taken within four weeks of accrual.
8.4 Paragraph 1 is subject to the employer informing the ALHMWU which is both party to the Award and which has members employed at the particular enterprise of its intention to introduce an enterprise system of time off in lieu of overtime flexibility, and providing a reasonable opportunity for the union to participate in negotiations.
8.5 Once a decision has been taken to introduce an enterprise system of time off in lieu, in accordance with this clause, its terms must be set out in the time and wages records kept pursuant to regulations 131A - 131R of the Industrial Relations Regulations.
8.6 An employer shall record time off in lieu arrangements in the time and wages book as prescribed in clause 23 of this Award at each time this provision is used.” 38
[39] Finally, in the subsequent Parental Leave Test Case 2005 decision 39 a Full Bench of the AIRC considered, among other things, a claim by ACCI and the National Farmers Federation (NFF) to adopt a model TOIL clause in the following terms:
“To assist employees in balancing their work and family responsibilities, an employee may elect, with the consent of the employer, to take time in lieu of payment for overtime at an agreed time or times.
Overtime taken as time off shall be taken at the ordinary time rate, that is an hour for each hour worked.”
[40] At paragraphs 278–279 of its decision the Full Bench summarised the submissions put in relation to the above claim, as follows:
“ACCI/NFF submitted that many key awards “have not delivered the options and capacities this clause is so clearly designed to deliver” and that in practice “many federal award provisions differ from this model, they are complicated, and they do not actually deliver direct access to direct toil arrangements”. Reasons given included that time off in lieu provisions in many awards have been made subject to employee majority veto clauses, a circumstance that ACCI/NFF submitted is inappropriate and impractical.
The ACTU opposed any variation to the existing standard, submitting that there is no evidence of problems with it or sufficient evidence to justify removal of the safeguard entitling an employee to elect to convert their time off back to wages if more than four weeks has elapsed since the entitlement was earned. The ACTU also submitted that a majority of awards already containing time off in lieu provisions provide for such time off at overtime rates (rather than ordinary rates) and that if the ACCI/NFF proposal was granted, workers taking time off for family reasons would be disadvantaged.” (footnotes omitted)
[41] The Full Bench rejected the ACCI/NFF claim in relation to TOIL. 40
[42] It is appropriate that the Commission take into account previous decisions relevant to any contested issue. As we have mentioned, previous Full Bench decisions should generally be followed, in the absence of cogent reasons for not doing so. 41 The particular context in which those decisions were made will also need to be considered. We return to our consideration of the Family Leave Test Case later in our decision. We now turn to the claims before us.
3. Claims
3.1 Ai Group claim
[43] Ai Group has made two claims in this matter. The first seeks to insert a model TOIL clause into a number of modern awards.42 The proposed model clause is set out below:
“Time off in lieu of payment for overtime
(a) An employee may elect, with the consent of the employer, to take time off in lieu of payment for overtime at a time or times agreed with the employer.
(b) Overtime taken as time off during ordinary time hours shall be taken at the ordinary time rate, that is an hour for each hour worked.
(c) An employer shall, if requested by an employee, provide payment, at the rate provided for the payment of overtime in the award, for any overtime worked under paragraph (c) of this subclause where such time has not been taken within four weeks of accrual.”
[44] During the course of the hearing on 5 May 2015 we raised a number of issues concerning Ai Group’s proposed model clause. These issues primarily related to the payment of untaken TOIL upon termination of employment and the need to address the potential for the indefinite accrual of TOIL. Ai Group addressed these issues in its supplementary written submission of 18 May 2015 and proposed the addition of the following paragraphs to its proposed model clause:
“(d) Subject to an employee’s right under (c), where the employee and employer are unable to reach agreement within 12 months as to when the time off in lieu will be taken, the employer may require the employee to take time off in lieu at a time of its choosing. This will be subject to the employer providing the employee with at least 4 weeks’ notice of the need to take such time off.
(e) If, upon termination of employment, an employee has an accrued entitlement to take time off in lieu which the employee has not yet accessed, the employee will be paid at the overtime rates applicable under the award for the corresponding overtime worked.”
[45] Ai Group submitted that the additional paragraphs are necessary to ensure that the relevant modern awards meet the modern awards objective, as contemplated by s.138. In respect of proposed paragraph (d) Ai Group submitted that it is intended to ensure that “employers retain some influence over the level of TOIL accruals beyond the initial decision to agree to this flexibility” while ‘not removing the right of an employee to have his or her accrued entitlements paid out at overtime rates’. 43 It is also submitted that proposed paragraph (d) will be likely to “ensure employees are incentivised to access TOIL in a timely manner, rather than accruing it for an extended period or indefinitely”.44 We return to the question of safeguards and TOIL later in this decision.
[46] Currently, 83 of the 122 modern awards provide for TOIL and of those, 59 provide that time off for TOIL is calculated at the ordinary rate (i.e. “time for time”) rather than the overtime rate (i.e. “time for penalty”).
[47] Ai Group propose to insert the model clause into 26 modern awards that do not currently have a TOIL provision (Attachment A) and to delete existing TOIL provisions in 10 modern awards and replace them with the model clause (Attachment B). In each of these 10 modern awards the existing TOIL provision provides for time off to be calculated on the basis of time for penalty.
[48] Ai Group also seeks to vary 51 of the 122 modern awards (Attachment C) to insert the following make-up time provision:
“Make-up time
(a) An employee may elect, with the consent of the employer, to work make up time under which the employee takes time off during ordinary hours, and works those hours at a later time, during the spread of ordinary hours provided in this award.
(b) An employee on shiftwork may elect, with the consent of their employer, to work make up time under which the employee takes time off during ordinary hours and works those hours at a later time, at the rate which would have been applicable to the hours taken off.”
3.2 AMWU claim
[49] The AMWU seeks to vary the provisions relating to TOIL in the following awards:
[50] The clause proposed by the AMWU is in the following terms:
“(d) An employee may elect, with the consent of the employer, to take time off instead of payment for overtime at a time or times agreed with the employer, provided that:
(i) An employee accrues time off instead of payment for overtime at the overtime penalty; and
(ii) If requested by an employee, an employer must within one week of receiving a request pay the employee for any overtime worked. The employee must be paid at overtime rates; and
(iii) Within four weeks of working the overtime the employee and employer must agree on when the time off will be taken otherwise payment for the overtime must be made to the employee; and
(iv) The amount of accrued hours of untaken Time Off Instead of Payment for Overtime will be recorded on an employee’s payslip.”
[51] The main effect of the proposed variations is to provide for the accrual of TOIL on a ‘time for penalty rate’ basis rather than on time for time basis.
[52] The AMWU claim also seeks to vary the general award provisions relating to facilitative provisions in the modern awards which are the subject of its claim. The effect of these related variations is to provide that access to TOIL arrangements by individual agreement is dependent upon an agreement between the employer and the majority of employees in the workplace before such a facilitative provision can be utilised. Further, the variations sought include an additional safeguard which requires that the unions which have members employed in an enterprise covered by the award ‘must be informed by the employer of the intention to use the facilitative provision and be given a reasonable opportunity to participate in the negotiations regarding its use’.
4. Submissions
[53] Written submissions in support of the various claims were filed by Ai Group, AMWU and Master Builders Australia (MBA). The ACTU and 11 other organisations subsequently filed submissions in reply.45 A further 10 supplementary submissions were filed following the hearing on 5 May 2015. A list of all submissions received can be found at Attachment D.
[54] It is convenient to first summarise the submissions in relation to the AMWU claim before turning to the Ai Group claims.
[55] As we have mentioned, the AMWU variations provide for the accrual of TOIL on a ‘time for penalty rate’ basis, rather than an ‘hour for hour’ basis and incorporate a range of safeguards. The AMWU submitted that the safeguards contained within its proposed clause would ensure:
(i) overtime worked is compensated for its unsocial characteristics and value by ensuring that TOIL accrues at the overtime penalty rate;
(ii) employees have had an opportunity to discuss TOIL across the workplace and are aware of their rights before using the provisions, by ensuring that employers seek a majority agreement under the facilitative provisions as well as individual agreement where it is intended that there is widespread use of TOIL across the organisation;
(iii) access to union advice about TOIL is readily available by ensuring the additional safeguard applies to the TOIL agreement;
(iv) employee applications for TOIL are genuinely considered by employers by ensuring that a time for TOIL to be taken is agreed within 4 weeks of working overtime, otherwise payment for overtime must be made to the employee; and
(v) employees can review their TOIL arrangements by ensuring that the TOIL agreements are kept as part of the employee records which are required by the Act and the Fair Work Regulations 2009 and are accounted for in payslips provided to employees where there is an ongoing accrual.
[56] The AMWU submits that the proposed variations would ‘go towards achieving the modern awards objective’,and addresses a number of the s.134(1) considerations, in particular:
● the relative living standards and the needs of the low paid (s.134(1)(a));46
● the need to encourage collective bargaining (s.134(1)(b));47
● the need to promote social inclusion through increased workforce participation (s.134(1)(c));48
● the need to promote flexible modern work practices and the efficient and productive performance of work (s.134(1)(d));49
● the need to provide additional remuneration for overtime, working unsocial, irregular or unpredictable hours etc (s.134(1)(da));50
● equal remuneration for work of equal or comparable value (s.134(1)(e));51
● the likely impact of any exercise of modern award powers on business, including on productivity, employment costs and the regulatory burden (s.134(1)(f));52
● a simple, easy to understand stable and sustainable modern award system (s.134(1)(g))53; and
● likely impact on employment growth etc (s.134(1)(h)).54
[57] The AMWU advances two other general points.
[58] First, it is submitted that since the Family Leave Test Case and the Parental Leave Test Case 55 there have been a number of legislative changes which are relevant to any consideration of TOIL in modern awards, in particular:
● the right to request flexible working arrangements (s.65);
● every modern award must contain a flexibility term (s.144); and
● the modern awards objective has been varied to insert s.134(1)(da) – the Commission must now take into account the need to provide additional remuneration for employees working overtime.
[59] The second point advanced is that the AMWU draws a distinction between TOIL and make-up time. Make-up time being granted on an hour for hour basis may be justified as a genuine family flexibility as ‘it affords time of value to the employee at the time during which it is needed’. TOIL initiated by an employer is different – the time being sought from the employee is time that might otherwise be spent attending to family responsibilities.
[60] The ACTU supports the AMWU’s claim.
[61] The Australian Workers’ Union (AWU) supports the AMWU’s application to vary TOIL provisions in relation to the following awards:
● Manufacturing and Associated Industries and Occupations Award 2010;
● Food, Beverage and Tobacco Manufacturing Award 2010;
● Sugar Industry Award 2010; and
● Airline Operations–Ground Staff Award 2010.
[62] The preliminary position of the CFMEU (C&G) is that the TOIL provisions sought to be varied by the AMWU be removed. In the alternative, should the Commission reject the CFMEU (C&G)’s primary submission, the CFMEU (C&G) would support the AMWU’s proposed variation with respect to the Manufacturing and Associated Industries and Occupations Award 2010.
[63] Ai Group opposes the variations proposed by the AMWU.56 It submits that the proposal is at odds with the balance struck by the Full Bench in developing a TOIL clause to best meet the objectives of the Family Leave Test Case.
[64] Ai Group submits that the AMWU seeks to depart from the test case TOIL clause by:
(i) creating disincentives for employers to agree to TOIL by requiring employers to administer time off based on the applicable penalty rate, rather than actual time worked;
(ii) restricting the availability of TOIL to employers and employees, in some circumstances, based on the vote of a majority of employees;
(iii) giving unions unreasonable and unnecessary rights to interfere with TOIL arrangements that are supported by the relevant employer and employee;
(iv) imposing a four week time restriction on the taking of TOIL; and
(v) imposing unnecessary and additional record-keeping obligations on TOIL where existing recording keeping obligations under the Fair Work Regulations 2009 are appropriate and adequate.
[65] Ai Group also submits that the AMWU’s proposals are inconsistent with the modern awards objective and its reply submission discusses each of the s.134 considerations.57
[66] The Printing Industries Association of Australia (PIAA) opposes the AMWU’s application to vary the Graphic Arts, Printing and Publishing Award 201058 and supports the retention of the award’s current TOIL provision. PIAA submits that the existing clause provides “time for time” which is consistent with the Family Leave Test Case, and that a change to TOIL at overtime rates would make the arrangement very unattractive to employers leading them to refuse an employee’s request to take TOIL. As to the additional “safeguards” sought by the AMWU, PIAA submits:
(i) the requirement for majority agreement is unnecessary in what is a matter between an individual employee and their employer and “would add red tape, effectively strangling and stifling an employee benefit”;59
(ii) the requirement for TOIL to be taken within four weeks is unnecessary as clause 33.9(a) of the Graphic Arts, Printing and Publishing Award 2010 already stipulates that the employee must take the TOIL within four weeks of working the overtime;
(iii) the requirement to keep TOIL agreements as part of the employee records required by the Fair Work Regulations 2009 and to be recorded on payslips would “unnecessarily increase the regulatory burden on business, and further disincentivises the utilisation of the flexibility provisions in the workplace”.60
[67] We now turn to the submissions advanced in relation to the Ai Group claims.
[68] Ai Group submits the model clauses replicate the facilitative provisions determined in the Family Leave Test Case 61 and provide for increased flexibility and an incentive for employers to allow employees to better reconcile work and family commitments.
[69] Ai Group identifies a number of trends in the Australian labour market which are said to support its claims. The trends identified are:
● full-time and part-time employment – part-time work is rising and currently accounts for 30.8% of the workforce;
● participation rate – the current participation rate is drifting lower as the population ages;
● employment growth and contraction in particular industries – employment has been growing more strongly in service sectors than in the industrial sectors for some time;
● working hours patterns and trends – the weekly working hours bracket showing the strongest growth in the past decade is the 16 to 29 hours per week bracket; and
● types of employment – the number of permanent employees has been increasing over many years and the proportion of casual employees has remained relatively stable.
[70] It is contended that the labour market trends identified support Ai Group’s contention that the modern award system needs to be more flexible in order to achieve increased workforce participation and to enable employees to better balance their work and family responsibilities.
[71] Ai Group also relies on the 29 January 2015 First Findings Report from the Australian Workplace Relations Study (AWRS) and a number of other research reports in support of its contentions regarding flexible working practices and employee preferences.
[72] Ai Group’s submission also addresses the various considerations the Commission is required to take into account in giving effect to the modern awards objective. We deal with these submissions later in our decision.
[73] In its submission of 18 March 2015,62 the MBA supports and adopts Ai Group’s submission in its entirety.
[74] In its reply submission,63 the NFF submits that while it supports the principle of make-up time, it does not support the insertion of the proposed clause in the Horticulture Award 2010.The NFF submits the award generally contains sufficient flexibility to accommodate arrangements of this nature.
[75] The ACTU and a number of individual unions oppose Ai Group’s claims.
[76] The ACTU64 opposes Ai Group’s claims on the following grounds:
(i) The current statutory context is significantly different to that which existed at the time the Family Leave Test Case was decided. The ACTU details these differences at paragraphs 80–122 of its submissions. It is submitted that the Act and modern awards are sufficient to provide the sort of flexibility Ai Group seeks.
(ii) The proposed TOIL provisions do not include any requirements that agreements be recorded in writing and Ai Group is seeking to avoid obligations to record overtime hours as required by the Fair Work Regulations2009.
(iii) Ai Group’s claims do not have the same level of safeguards as other forms of workplace flexibility, for example, IFAs are required to be in writing and must pass the better off overall test (BOOT).
(iv) The workplace flexibility sought by Ai Group would shift flexibility in the employer’s favour and does nothing to assist employees to manage their working and personal lives.
(v) The proposed provisions undermine protections for part-time employees relating to their agreed hours and days of work. The proposed make-up time clause does not require an agreement to be in writing in order to change an employee’s pattern of hours and nor does it include a period of notice or a requirement that the employee be provided with a copy of the agreement. The proposed make-up time clause would also enable an employer to alter an employee’s roster without complying with the relevant award obligations.
(vi) Ai Group has not brought any evidence in support of its submission that the proposed clauses are necessary to ensure that the relevant awards meet the modern awards objective. The ACTU addresses each of the s.134 considerations at paragraphs 124–173 of its submissions.
[77] The AMWU—Vehicle Division opposes the Ai Group claims and, in particular, the claim to remove the existing TOIL provision in the Vehicle Manufacturing, Repair, Services and Retail Award 2010 (the Vehicle RS&R Award). It submits that Ai Group has failed to demonstrate that the variations proposed are necessary to meet the modern awards objective and that the relevant award already provides for mechanisms to assist in achieving flexibility.
[78] The Australian Nursing and Midwifery Federation (ANMF) opposes the claim made by Ai Group. It supports the submissions of the ACTU and submits that, given the existing award flexibility provisions, the claims are unnecessary and are a reduction of existing entitlements.
[79] The AWU opposes the variations sought by Ai Group.65 The AWU relies on the submissions of the ACTU and further submits Ai Group has not established a sufficient merit case, nor advanced satisfactory evidence, in support of the proposed variations.
[80] The CFMEU (C&G)66 opposes the variations sought by Ai Group with respect to the following awards:
● Building and Construction General On-site Award 2010
● Joinery and Building Trades Award 2010
● Mobile Crane Hiring Award 2010.
[81] The CFMEU (C&G) submits that Ai Group has failed to advance a sufficient merit based argument in support of the variations proposed. It also submits that the inclusion of TOIL and make-up time provisions in the three relevant awards has been considered, and rejected, by predecessor bodies to the Commission. The CFMEU (C&G) deals with this arbitral history at paragraphs 22–37 of its 23 April 2015 submission and we return to that aspect of the submission at the end of our decision. Two additional, general, arguments are advanced in opposing Ai Group’s claim:
(i) Ai Group’s proposed model terms require the consent of the employer and on that basis are inconsistent with s.65, detrimental to an employee when compared to the NES (s.55(4)) and should be rejected.
(ii) The model award flexibility provision in all modern awards already provides for IFAs concerning hours of work, including any arrangement for TOIL and make-up time. The model award flexibility term also includes a number of safeguards which are not a feature of the Ai Group proposed clauses. On this basis it is submitted that the Ai Group proposal should be dismissed: “the variations are not only unnecessary but also a reduction in the safety net”.67 It is also contended that the flexibility term is the only permitted means of providing for an individual flexibility agreement between an employee and an employer.
[82] The Construction, Forestry, Mining and Energy Union (Mining and Energy Division) (CFMEU (M&E)) opposes Ai Group’s application to insert or amend clauses relating to TOIL.68 The CFMEU (M&E) submits it has an interest in the following awards:
● Black Coal Mining Industry Award 2010
● Mining Industry Award 2010
● Electrical Power Industry Award 2010
● Coal Export Terminals Award 2010.
[83] The CFMEU (M&E) supports the CFMEU (C&G) submission that Ai Group’s claim is inconsistent with the NES, and advances the following points in support of its submission that Ai Group’s application should be rejected:
(i) Employees will be worse off under the provisions sought and they do not provide for appropriate “workplace flexibility” – the benefit of the proposed clauses are “heavily skewed in favour of the employer”:
“The employer makes a saving to the extent of the employee foregoing penalty rates and the employer has the sole discretion as to if and when an employee may utilise those provisions. This provides a strong incentive for the employer to pressure an employee to taking such time off at a time that suits the employer and/or to take them in lieu of payment i.e. whether the employee wants them or not.”69
(ii) No evidence is provided about the use of the existing provisions.
(iii) The proposals will not allow workers to better meet their caring responsibilities:
“ ... TOIL and MUT [make-up time] are ultimately subject to the control of the employer, an employee cannot have any confidence that they will be available (not to mention the wage reduction problem) as and when they wish to utilise. In such circumstances, what employees need is a degree of certainty that they will get the time off. With TOIL, being predicated to the availability of overtime and with few employers guaranteeing overtime, it is hardly a reliable option for employees with child caring responsibilities. And together with the existence of employer discretion as to if and when such time off is taken, the notion of certainty is non existent.”70
(iv) Ai Group fails to make any connection between the material it presents about the changing nature of the workforce and its claim.
(v) The AWRS First Findings Report only refers to the availability of provisions such as TOIL, it does not refer to actual usage.
(vi) Only 59 of the 122 modern awards have TOIL provisions based on an ‘hour for hour’ entitlement.
(vii) The proposals add nothing to the existing flexibility provided by the Act and the existing model flexibility provision in modern awards:
“The presence and utility of such arrangements are addressed in the ACTU submissions and shall not be repeated here, save to submit that given these flexibilities, TOIL and MUT add nothing to the already existing flexibility arrangements available to employees and employers in circumstances where those provisions provide employees with a form of protection such as the better off overall test that is not present in the Ai Group application.”71
(viii) Modifying the arrangements under which working hours are performed can be accommodated through collective bargaining and enterprise agreements:
“Employers should be encouraged to engage in enterprise bargaining rather than endeavour to achieve favourable outcomes by varying the awards.”72
(ix) The provisions proposed by Ai Group are not necessary to meet the modern awards objective.73
[84] The CFMEU (M&E) also submits that the provisions proposed are ‘of no or at least problematic value’ in relation to the awards in which it has an interest.74
[85] The Health Services Union of Australia (HSU) adopts the submissions of the ACTU and makes submissions75 concerning the following awards:
● Ambulance and Patient Transport Industry Award 2010 (Ambulance Award)
● Health Professionals and Support Services Award 2010 (Health Professionals Award)
● Medical Practitioners Award 2010 (Medical Practitioners Award)
● Nurses Award 2010 (Nurses Award).
[86] The HSU opposes Ai Group’s application in relation to the awards in which it has an interest. In relation to TOIL, the Ambulance Award and the Nurses Award currently provide for TOIL at the relevant overtime rate. Ai Group seeks to replace these provisions with time for time and the HSU opposes the Ai Group claim on the basis that it is detrimental to the employees concerned and may provide an incentive for employers to ‘covertly apply pressure to an employee to accept time off as opposed to payment of the worked overtime’.76
[87] In relation to the Ai Group claim to insert a make-up time clause (insofar as it applies to the Ambulance Award, Medical Practitioners Award, Health Professionals Award and the Nurses Award) the HSU submits that these applications are unnecessary and undermine the entitlements and protections contained within these awards. In particular, it is submitted that the make-up time proposals would allow employers to vary an employee’s roster but avoid the restrictions contained in the awards. The HSU further submits that the flexibilities detailed in the ACTU’s submission and contained within awards gives an employee the ability to work flexibly without removing or reducing the protections afforded in modern awards. The HSU supports the ACTU’s submissions regarding protections provided to part-time employees in relation to agreed days and hours to be worked.
[88] The Maritime Union of Australia (MUA)adopts the ACTU’s submissions and opposes the insertion of the proposed provisions in the following awards, submitting their inclusion would either have little utility or would disturb the interrelationship of existing award clauses:
● Dredging Industry Award 2010
● Ports, Harbours and Enclosed Water Vessels Award 2010
● Seagoing Industry Award 2010
● Stevedoring Industry Award 2010.
[89] The MUA submits the existing award flexibility clause provides sufficient flexibility for employers and employees to mutually agree to changes to conditions of employment, including arrangements for when work is performed and overtime rates, with the protection of the BOOT.
[90] The Textile, Clothing and Footwear Union of Australia (TCFUA) opposes Ai Group’s proposals and supports the submissions of the ACTU, the CMFEU (C&G) and the AMWU. The TCFUA submits77 that Ai Group’s proposals are neither desirable nor necessary in ensuring that awards meet the modern awards objective. The TCFUA has an interest in the Textile, Clothing, Footwear and Associated Industries Award 2010 and the Dry Cleaning and Laundry Industries Award 2010.
[91] The TCFUA submits that the current statutory and award context already provides the flexibility Ai Group seeks, albeit with appropriate safeguards and protections. The Ai Group proposals in respect of the awards in which the TCFUA has an interest are said to undermine and reduce current conditions and protections for employees. The TCFUA submits that Ai Group has not advanced a merit argument and nor has it provided cogent submissions supported by probative evidence.
5. Consideration
5.1 General
[92] The submissions advanced in respect of the Ai Group and AMWU claims deal with both the merits of the claims and what may be regarded as preliminary jurisdictional arguments. Two jurisdictional arguments are advanced.
[93] The first is that Ai Group’s proposed model terms (and for that matter the terms as sought to be varied by the AMWU) are inconsistent with s.65 and detrimental to an employee. On that basis it is contended that s.55(4) prevents the inclusion of the proposed terms in a modern award (the NES contention). The second jurisdictional argument is that the flexibility term inserted into modern awards pursuant to s.144(1) is the only permitted means of providing any individual flexibility agreement between an employee and an employer and accordingly there is no jurisdiction to insert the provisions claimed (the IFA contention).
[94] It is convenient to deal first with the submissions which may be characterised as preliminary jurisdictional arguments (the NES and IFA contentions), before turning to the merit arguments.
5.2 Preliminary jurisdictional points
[95] We turn first to the CFMEU (C&G) contention that Ai Group’s claims should be rejected as they are inconsistent with the NES. Specifically it is submitted that the TOIL and make-up time provisions proposed by Ai Group require the consent of the employer before the employee can access the flexibility required and as such the claimed terms are said to be inconsistent with s.65 of the NES.
[96] Section 55 deals with the interaction between the NES and a modern award or enterprise agreement:
“55 Interaction between the National Employment Standards and a modern award or enterprise agreement
National Employment Standards must not be excluded
(1) A modern award or enterprise agreement must not exclude the National Employment Standards or any provision of the National Employment Standards.
Terms expressly permitted by Part 2–2 or regulations may be included
(2) A modern award or enterprise agreement may include any terms that the award or agreement is expressly permitted to include:
(a) by a provision of Part 2–2 (which deals with the National Employment Standards); or
(b) by regulations made for the purposes of section 127.
Note: In determining what is permitted to be included in a modern award or enterprise agreement by a provision referred to in paragraph (a), any regulations made for the purpose of section 127 that expressly prohibit certain terms must be taken into account.
(3) The National Employment Standards have effect subject to terms included in a modern award or enterprise agreement as referred to in subsection (2).
Note: See also the note to section 63 (which deals with the effect of averaging arrangements).
Ancillary and supplementary terms may be included
(4) A modern award or enterprise agreement may also include the following kinds of terms:
(a) terms that are ancillary or incidental to the operation of an entitlement of an employee under the National Employment Standards;
(b) terms that supplement the National Employment Standards;
but only to the extent that the effect of those terms is not detrimental to an employee in any respect, when compared to the National Employment Standards.
Note 1: Ancillary or incidental terms permitted by paragraph (a) include (for example) terms:
(a) under which, instead of taking paid annual leave at the rate of pay required by section 90, an employee may take twice as much leave at half that rate of pay; or
(b) that specify when payment under section 90 for paid annual leave must be made.
Note 2: Supplementary terms permitted by paragraph (b) include (for example) terms:
(a) that increase the amount of paid annual leave to which an employee is entitled beyond the number of weeks that applies under section 87; or
(b) that provide for an employee to be paid for taking a period of paid annual leave or paid/personal carer’s leave at a rate of pay that is higher than the employee’s base rate of pay (which is the rate required by sections 90 and 99).
Note 3: Terms that would not be permitted by paragraph (a) or (b) include (for example) terms requiring an employee to give more notice of the taking of unpaid parental leave than is required by section 74.
Enterprise agreements may include terms that have the same effect as provisions of the National Employment Standards
(5) An enterprise agreement may include terms that have the same (or substantially the same) effect as provisions of the National Employment Standards, whether or not ancillary or supplementary terms are included as referred to in subsection (4).
Effect of terms that give an employee the same entitlement as under the National Employment Standards
(6) To avoid doubt, if a modern award includes terms permitted by subsection (4), or an enterprise agreement includes terms permitted by subsection (4) or (5), then, to the extent that the terms give an employee an entitlement (the award or agreement entitlement) that is the same as an entitlement (the NES entitlement) of the employee under the National Employment Standards:
(a) those terms operate in parallel with the employee’s NES entitlement, but not so as to give the employee a double benefit; and
(b) the provisions of the National Employment Standards relating to the NES entitlement apply, as a minimum standard, to the award or agreement entitlement.
Note: For example, if the award or agreement entitlement is to 6 weeks of paid annual leave per year, the provisions of the National Employment Standards relating to the accrual and taking of paid annual leave will apply, as a minimum standard, to 4 weeks of that leave.
Terms permitted by subsection (4) or (5) do not contravene subsection (1)
(7) To the extent that a term of a modern award or enterprise agreement is permitted by subsection (4) or (5), the term does not contravene subsection (1).
Note: A term of a modern award has no effect to the extent that it contravenes this section (see section 56). An enterprise agreement that includes a term that contravenes this section must not be approved (see section 186) and a term of an enterprise agreement has no effect to the extent that it contravenes this section (see section 56).”
[97] The CMFEU (C&G) advances two discrete points. First, it is said that the claimed terms are inconsistent with s.65. Second, the CFMEU (C&G) characterises the claimed provisions as terms that are ‘ancillary or incidental’ to the operation of an employee entitlement under the NES or they are terms that ‘supplement’ the NES (within the meaning of those expressions in s.55(4)). It is then submitted that the effect of the claimed terms is ‘detrimental’ to employees. If the CFMEU (C&G) is correct than the claimed provision cannot be inserted into modern awards because of the operation of s.55(4).
[98] We turn first to the proposition that Ai Group’s claims are ‘inconsistent’ with s.65.
[99] Division 4 of Part 2–2 of the Act deals with requests for flexible working arrangements. Section 65 is the principal provision and it provides as follows:
“65 Requests for flexible working arrangements
Employee may request change in working arrangements
(1) If:
(a) any of the circumstances referred to in subsection (1A) apply to an employee; and
(b) the employee would like to change his or her working arrangements because of those circumstances;
then the employee may request the employer for a change in working arrangements relating to those circumstances.
Note: Examples of changes in working arrangements include changes in hours of work, changes in patterns of work and changes in location of work.
(1A) The following are the circumstances:
(a) the employee is the parent, or has responsibility for the care, of a child who is of school age or younger;
(b) the employee is a carer (within the meaning of the Carer Recognition Act 2010);
(c) the employee has a disability;
(d) the employee is 55 or older;
(e) the employee is experiencing violence from a member of the employee’s family;
(f) the employee provides care or support to a member of the employee’s immediate family, or a member of the employee’s household, who requires care or support because the member is experiencing violence from the member’s family.
(1B) To avoid doubt, and without limiting subsection (1), an employee who:
(a) is a parent, or has responsibility for the care, of a child; and
(b) is returning to work after taking leave in relation to the birth or adoption of the child;
may request to work part-time to assist the employee to care for the child.
(2) The employee is not entitled to make the request unless:
(a) for an employee other than a casual employee—the employee has completed at least 12 months of continuous service with the employer immediately before making the request; or
(b) for a casual employee—the employee:
(i) is a long term casual employee of the employer immediately before making the request; and
(ii) has a reasonable expectation of continuing employment by the employer on a regular and systematic basis.
Formal requirements
(3) The request must:
(a) be in writing; and
(b) set out details of the change sought and of the reasons for the change.
Agreeing to the request
(4) The employer must give the employee a written response to the request within 21 days, stating whether the employer grants or refuses the request.
(5) The employer may refuse the request only on reasonable business grounds.
(5A) Without limiting what are reasonable business grounds for the purposes of subsection (5), reasonable business grounds include the following:
(a) that the new working arrangements requested by the employee would be too costly for the employer;
(b) that there is no capacity to change the working arrangements of other employees to accommodate the new working arrangements requested by the employee;
(c) that it would be impractical to change the working arrangements of other employees, or recruit new employees, to accommodate the new working arrangements requested by the employee;
(d) that the new working arrangements requested by the employee would be likely to result in a significant loss in efficiency or productivity;
[293] We are not persuaded that it is appropriate to vary any of the 10 modern awards sought to be varied by Ai Group. Each of the awards contains a TOIL provision and Ai Group has not advanced any cogent submission in support of the variations sought. Further, Ai Group’s application is inconsistent with the approach adopted in the Family Leave Test Case in which existing TOIL provisions, which provided time off to be calculated at overtime rates, were preserved and not varied to insert the model TOIL facilitative provision. We are not persuaded that the variations proposed are necessary to achieve the modern awards objective.
6. Conclusion and Next Steps
[294] For the reasons given we have decided to reject the following aspects of the claims before us on the basis that the variations sought are not necessary to achieve the modern awards objective:
(i) the AMWU’s claim to vary the existing TOIL provisions in five modern awards (see paragraphs [145]–[182] above);
(ii) Ai Group’s claim to vary 51 modern awards to insert a make-up time provision (see paragraphs [183]–[281] above); and
(iii) Ai Group’s claim to vary the existing TOIL provision in 10 modern awards (see paragraphs [282]–[293]).
[295] The remaining aspect of Ai Group’s claim – to insert a model TOIL clause into 36 modern awards – has been subsumed by our consideration of a model TOIL provision.
[296] As we have mentioned, our provisional view is that the variation of the modern awards listed in Attachment F to incorporate the model term is necessary to ensure that each of these modern awards provides a fair and relevant minimum safety net, taking into account the s.134 considerations (insofar as they are relevant) and would also be consistent with the object of the Act. We express a provisional view only at this stage because we are conscious that the scope and content of the variations we propose were not fully canvassed during the proceedings.
[297] Three further modern awards make provision for overtime but have not been included in the list of awards in Attachment F. The three awards in question are the Building and Construction General On-Site Award 2010, the Joinery and Building Trades Award 2010 and the Seagoing Industry Award 2010. As outlined in the submission of the CFMEU (C&G), the two construction awards have a particular arbitral history. 138
[298] Some 55 Federal and State awards were considered during the Part 10A process that led to the making of the Building and Construction General On-Site Award 2010 and of those 55 awards 37 did not contain a TOIL provision. Some 26 Federal and State awards were considered in the process that led to the making of the Joinery and Building Trades Award 2010, and of those only 2 contained a TOIL provision. The CFMEU (C & G) submits that the main pre-reform awards on which the two modern awards were based were the National Building and Construction Industry Award and the National Joinery and Building Trades Products Award (we refer to these as the two pre-reform awards). Neither of the two pre-reform awards contained a TOIL provision and the arbitral history relating to attempts to insert TOIL provisions in those awards is dealt with in the CFMEU (C & G) submissions of 23 April 2015. 139 We briefly summarise this history below.
[299] In November 1997 the CFMEU filed applications to vary the two pre-reform awards to introduce family leave provisions based on the Family Leave Test Case decisions. The CFMEU and MBA submitted consent orders that only dealt with the personal leave provisions. The issues of TOIL and make up time were to be left to the subsequent award simplification proceedings. Ai Group’s supported this consent position. Commissioner Lawson issued orders reflecting the consent position of the parties. 140
[300] The inclusion of a TOIL provision in the two pre-reform awards was subsequently raised in the award simplification proceedings. The TOIL issue was not pressed by either the MBA or Ai Group. The Civil Contractors Federation took a different view and sought the inclusion of a facilitative clause which included TOIL.
[301] On 23rd July 1999 Commissioner Merriman handed down his decision 141 on award simplification for the National Building and Construction Industry Award 1990 and addressed the issue of facilitative provisions as follows:
“[43] In conducting the review and in deciding whether a provision is appropriate, the Commission has taken into consideration not only the submissions of the parties, but given the wording of item 51(7)(a):
‘where appropriate it contains facilitative provisions that allow agreement at the workplace or enterprise level, between employers and employees (including individual employees) and how the award provisions are to apply’
the Commission must heavily rely upon its experience of the award and its operation.
The Commission has had significant experience in the operation of this award in the industry, having been assigned to the panel in 1980 and having sat on a range of matters including Full Benches which have dealt with major disputes in the industry over the last 19 years. In arriving at the decision as to the appropriateness of facilitative provisions in this award, the Commission has had regard to the type of employment, daily hire and weekly, the flexibility of the workforce as it is required to move from work site to work site, the short term nature of many employment contracts and the inter relationship of many different employers working on the same site.”
[302] The award that was made from this decision, the National Building and Construction Industry Award 2000, 142 did not include TOIL and make-up time provisions.
[303] In the decision 143 that made the National Joinery and Building Trades Products Award 2002 it was noted that the award simplification review of the National Joinery and Building Trades Products Award 1993 was originally deferred to allow the review of the National Building and Construction Industry Award 1990 and that:
“[2] Lengthy discussions between the parties to this award ensued and an agreed position has now been reached as to the contents of a simplified version.”
[304] The award that was made 144 did not contain TOIL or make-up time provisions.
[305] In 2003 the MBA made an application to vary the National Building and Construction Industry Award 2000, which included the insertion of a TOIL provision. The MBA application was referred to a Full Bench which was dealing with 13 other applications. In a decision issued on 23 June 2004 the Full Bench stated:
“[26] It seems to have been accepted by the MBA that the CFMEU is in substance correct in its submission that the remaining claims (other than the part-time claim and the casual claim) do not raise novel issues and might be dealt with within the principles already established by test case decisions. Nevertheless we see no cogent reason why those claims should be dismissed at the outset.
[27] This brings us to the MBA's submission that its application should be joined or heard concurrently with the other applications. We have decided that in all of the circumstances it is more appropriate not to follow either of those courses. The better course is to adjourn the MBA application generally pending the determination of the main applications. There are several reasons for our decision.
[28] While the part-time claim and the casual claim may be relevant to the area of work and family balance, they also involve issues which do not arise in the main applications. In relation to the part-time claim, the MBA application is concerned with the introduction of part-time work in the context of daily hire employment. In relation to the casual claim, the six-week limitation on casual employment has a particular history which will undoubtedly be relevant to the application. Partly for these reasons, and partly because of the history of the existing award provisions, we have no doubt that joinder or concurrent hearings would add substantially to the time required to hear and determine the main applications. Those applications are already scheduled for 19 days of hearing on evidence alone. Furthermore the program for filing of submissions is well advanced.
[29] It is fair also to observe, as the CFMEU pointed out, that test case decisions have not always been implemented in the building and construction industry. Although we should not be taken as deciding the point, this lends some support to the view that there are particular aspects of the industry which require special consideration.
[30] Furthermore, if the MBA application is heard after the main applications have been determined, the decision can be addressed effectively in the building and construction industry context at that time. In saying this we do not intend to limit the MBA's rights of intervention in the main applications. Its evidence and submissions in those applications may deal with the potential effects on the building and construction industry of the various claims advanced by the parties and, subject to the bounds of relevance, any other matter.
[31] This leaves for consideration the remaining claims in the MBA application. On what we have heard we agree with the CFMEU that all of those claims are capable of being addressed by a single member of the Commission. It is a matter for the MBA whether it wishes the whole of the application to be dealt with by the Full Bench. On application by the MBA we are prepared to refer the claims other than the part-time claim and the casual claim, pursuant to s.107(9)(a), to a member to hear and determine.” 145
[306] The MBA’s TOIL claim was referred for further conciliation. It appears that no further action was taken in respect of this aspect of the MBA’s application because of the impact of legislative changes at that time. 146
[307] Given the unusual arbitral history and the particular features of the industry covered by the two construction awards (including the operation of daily hire) we think the most expeditious course is to deal with any application to insert a TOIL provision in these awards during the award stage rather than in the settlement of any orders which may arise` from our further consideration of the provisional model term.
[308] We take the same view in relation to the Seagoing Industry Award 2010, though for different reasons. Work under this award is predominantly performed at sea and includes an aggregate annual salary provision. The variation of the award to include a TOIL provision is opposed by the MUA on the basis that such a provision would have little utility given the manner in which work is carried out and the terms of the award. It is appropriate that any application to vary this award to insert a TOIL provision be dealt with during the award phase of the Review.
[309] As outlined in paragraph [279], the model term set out in paragraph [267] only reflects our provisional view. Interested parties will be provided with an opportunity to make further submissions directed at both the model term and the proposition that all modern awards be varied to insert the model term. Directions will be issued in relation to the filing of further submissions and a final oral hearing. Submissions filed in accordance with those directions should also address the modern awards objective. We will only reach a concluded view in respect of these issues after considering all of the further submissions.
PRESIDENT
Appearances:
S Maxwell for the Construction, Forestry, Mining and Energy Union (Construction and General Division) and Construction, Forestry, Mining and Energy Union (Mining and Energy Division).
L Svendsen for the Health Services Union of Australia.
B Ferguson for The Australian Industry Group.
M Adler for the Housing Industry Association.
G Kusuma for the NSW Farmers’ (Industrial) Association and the National Farmers’ Federation.
S Crawford for The Australian Workers’ Union.
A McCarthy for the Australian Nursing and Midwifery Federation.
G Starr for the Australian Council of Trade Unions.
O Tran for the Textile, Clothing and Footwear Union of Australia.
M Nguyen for the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU).
A Moussa for the Australian Manufacturing Workers’ Union – Vehicle Division.
R Calver for Master Builders Australia.
M Blewett for Printing Industries Association of Australia
Hearing details:
2015.
Sydney: (with video links to Melbourne, Canberra and Perth)
May 5.
Before Commissioner Roberts:
2015.
Sydney: (with video link to Perth)
May 19.
ATTACHMENT A—Awards proposed to be varied to insert the TOIL clause (26 awards)A
Air Pilots Award 2010
Aircraft Cabin Crew Award 2010
Alpine Resorts Award 2010
Aquaculture Industry Award 2010
Black Coal Mining Industry Award 2010
Building and Construction General On–site Award 2010
Business Equipment Award 2010
Coal Export Terminals Award 2010
Concrete Products Award 2010
Cotton Ginning Award 2010
Dredging Industry Award 2010
Electrical, Electronic and Communications Contracting Award 2010B
Electrical Power Industry Award 2010
Horse and Greyhound Training Award 2010
Joinery and Building Trades Award 2010
Miscellaneous Award 2010
Nursery Award 2010
Pest Control Industry Award 2010
Pharmaceutical Industry Award 2010
Plumbing and Fire Sprinklers Award 2010
Poultry Processing Award 2010
Road Transport (Long Distance Operations) Award 2010
Seagoing Industry Award 2010
Security Services Industry Award 2010
Silviculture Award 2010
Stevedoring Industry Award 2010
A Ai Group Submission – 13 November 2014 at Schedule 1.
B Inserted by Ai Group Supplementary Submission – 5 December 2014 at Schedule 1.
ATTACHMENT B—Awards proposed to be varied by deleting existing TOIL provision and replacing with test case TOIL clause (10 awards)A
Airport Employees Award 2010
Ambulance and Patient Transport Industry Award 2010
Dry Cleaning and Laundry Industry Award 2010
Fast Food Industry Award 2010
Meat Industry Award 2010
Nurses Award 2010
Road Transport and Distribution Award 2010
Textile, Clothing, Footwear and Associated Industries Award 2010
Timber Industry Award 2010
Vehicle Manufacturing, Repair, Services and Retail Award 2010
A Ai Group Supplementary Submission – 5 December 2014 at Schedule 2.
ATTACHMENT C—Awards proposed to be varied to insert make-up time clause (51 awards)A
Air Pilots Award 2010
Aircraft Cabin Crew Award 2010
Airline Operations–Ground Staff Award 2010
Ambulance and Patient Transport Industry Award 2010
Asphalt Industry Award 2010
Black Coal Mining Industry Award 2010
Building and Construction General On–site Award 2010
Business Equipment Award 2010
Cement and Lime Award 2010
Cleaning Services Award 2010
Coal Export Terminals Award 2010
Commercial Sales Award 2010
Concrete Products Award 2010
Cotton Ginning Award 2010
Dredging Industry Award 2010
Dry Cleaning and Laundry Industry Award 2010
Electrical Power Industry Award 2010
Electrical, Electronic and Communications Contracting Award 2010
Fast Food Industry Award 2010
Gas Industry Award 2010
General Retail Industry Award 2010
Health Professionals and Support Services Award 2010
Horse and Greyhound Training Award 2010 B
Horticulture Award 2010 B
Joinery and Building Trades Award 2010 B
Market and Social Research Award 2010 B
Medical Practitioners Award 2010 B
Mining Industry Award 2010 B
Miscellaneous Award 2010 B
Nurses Award 2010 B
Nursery Award 2010 B
Oil Refining and Manufacturing Award 2010 B
Passenger Vehicle Transportation Award 2010 B
Pest Control Industry Award 2010 B
Pharmaceutical Industry Award 2010 B
Plumbing and Fire Sprinklers Award 2010 B
Ports, Harbours and Enclosed Water Vessels Award 2010 B
Poultry Processing Award 2010 B
Premixed Concrete Award 2010 B
Quarrying Award 2010 B
Road Transport (Long Distance Operations) Award 2010 B
Road Transport and Distribution Award 2010 B
Salt Industry Award 2010 B
Seagoing Industry Award 2010 B
Security Services Industry Award 2010 B
Silviculture Award 2010
Stevedoring Industry Award 2010
Sugar Industry Award 2010
Textile, Clothing, Footwear and Associated Industries Award 2010
Water Industry Award 2010
Wool Storage, Sampling and Testing Award 2010
A Ai Group Submission – 13 November 2014 at Schedule 2.
B Inserted by Ai Group Supplementary Submission – 5 December 2014 at Schedule 3.
ATTACHMENT D—Index of material
SUBMISSIONS AND CORRESPONDENCE | ||
Australian Council of Trade Unions | Submission | 22 May 2015 |
Correspondence | 4 May 2015 | |
Submission in reply | 23 April 2015 | |
Correspondence | 13 February 2015 | |
Submission | 4 December 2014 | |
Correspondence | 2 December 2014 | |
Australian Hotels Association | Submission | 13 November 2014 |
Australian Industry Group | Supplementary note to joint submission | 25 May 2015 |
Submission | 18 May 2015 | |
List of authorities and materials | 1 May 2015 | |
Submission in reply | 23 April 2015 | |
Submission | 18 March 2015 | |
Submission | 5 December 2014 | |
Submission | 13 November 2014 | |
Australian Industry Group and AMWU | Joint submission | 19 May 2015 |
AMWU | Submission | 1 June 2015 |
Submission | 22 March 2015 | |
Submission | 10 December 2014 | |
Correspondence | 4 December 2014 | |
Submission | 13 November 2014 | |
AMWU – Vehicle Division | Submission in reply | 1 June 2015 |
Submissions in reply | 28 April 2015 | |
Australian Nursing and Midwifery Federation | Submission in reply | 23 April 2015 |
The Australian Workers’ Union | Submission in reply | 23 April 2015 |
Correspondence | 8 December 2014 | |
BusinessSA | Submission | 2 December 2014 |
Submission | 13 November 2014 | |
CFMEU – Construction and General Division | Submission in reply | 22 May 2015 |
Submission in reply | 15 May 2015 | |
Correspondence | 1 May 2015 | |
Submission in reply | 23 April 2015 | |
CFMEU – Forestry and Furnishing Products Division | Correspondence | 8 December 2014 |
CFMEU – Mining and Energy Division | Correspondence | 1 May 2015 |
Submission in reply | 22 April 2015 | |
Correspondence | 21 January 2015 | |
Correspondence | 4 December 2014 | |
Fair Work Commission | Summary of submissions | 29 April 2015 |
Health Services Union of Australia | Submission in reply | 23 April 2015 |
Housing Industry Association | Correspondence | 4 May 2015 |
Maritime Union of Australia | Submission | 17 April 2015 |
Submission | 5 December 2014 | |
Master Builders Association | Submission | 15 May 2015 |
Correspondence | 18 March 2015 | |
National Farmers’ Federation | Submission in reply | 22 April 2015 |
Submission | 13 November 2014 | |
Printing Industries Association of Australia | Supplementary evidence | 18 May 2015 |
Witness statement | 12 May 2015 | |
Submission in reply | 22 April 2015 | |
SA Unions | Correspondence | 13 February 2015 |
Textile, Clothing and Footwear Union of Australia | Submission in reply | 1 June 2015 |
Submission in reply | 23 April 2015 | |
Submission in reply | 4 December 2014 | |
ATTACHMENT E—Model Flexibility Term
‘7. Award flexibility
7.1 Notwithstanding any other provision of this award, an employer and an individual employee may agree to vary the application of certain terms of this award to meet the genuine individual needs of the employer and the individual employee. The terms the employer and the individual employee may agree to vary the application of are those concerning:
(a) arrangements for when work is performed;
(b) overtime rates;
(c) penalty rates;
(d) allowances; and
(e) leave loading.
7.2 The employer and the individual employee must have genuinely made the agreement without coercion or duress. An agreement under this clause can only be entered into after the individual employee has commenced employment with the employer.
7.3 The agreement between the employer and the individual employee must:
(a) be confined to a variation in the application of one or more of the terms listed in clause 7.1; and
(b) result in the employee being better off overall at the time the agreement is made than the employee would have been if no individual flexibility agreement had been agreed to.
7.4 The agreement between the employer and the individual employee must also:
(a) be in writing, name the parties to the agreement and be signed by the employer and the individual employee and, if the employee is under 18 years of age, the employee’s parent or guardian;
(b) state each term of this award that the employer and the individual employee have agreed to vary;
(c) detail how the application of each term has been varied by agreement between the employer and the individual employee;
(d) detail how the agreement results in the individual employee being better off overall in relation to the individual employee’s terms and conditions of employment; and
(e) state the date the agreement commences to operate.
7.5 The employer must give the individual employee a copy of the agreement and keep the agreement as a time and wages record.
7.6 Except as provided in clause 7.4(a) the agreement must not require the approval or consent of a person other than the employer and the individual employee.
7.7 An employer seeking to enter into an agreement must provide a written proposal to the employee. Where the employee’s understanding of written English is limited the employer must take measures, including translation into an appropriate language, to ensure the employee understands the proposal.
7.8 The agreement may be terminated:
(a) by the employer or the individual employee giving 13 weeks’ notice of termination, in writing, to the other party and the agreement ceasing to operate at the end of the notice period; or
(b) at any time, by written agreement between the employer and the individual employee.
Note: If any of the requirements of s.144(4), which are reflected in the requirements of this clause, are not met then the agreement may be terminated by either the employee or the employer, giving written notice of not more than 28 days (see s.145 of the Fair Work Act 2009 (Cth)).
7.9 The notice provisions in clause 7.8(a) only apply to an agreement entered into from the first full pay period commencing on or after 4 December 2013. An agreement entered into before that date may be terminated in accordance with clause 7.8(a), subject to four weeks’ notice of termination.
7.10 The right to make an agreement pursuant to this clause is in addition to, and is not intended to otherwise affect, any provision for an agreement between an employer and an individual employee contained in any other term of this award.’ 147
ATTACHMENT F—Modern awards with overtime provisions
In accordance with paragraph [281], it is proposed that the model TOIL provision be inserted in the following 113 modern awards:
Award code | Award title | Overtime provision | TOIL | |
MA000115 | Aboriginal Community Controlled Health Services Award 2010 | 24 | 24.6 | ordinary rate |
MA000018 | Aged Care Award 2010 | 25 | 25.1(c) | ordinary rate |
MA000047 | Aircraft Cabin Crew Award 2010 | B.6, D.6 | (-) | (-) |
MA000048 | Airline Operations—Ground Staff Award 2010 | 32 | 32.1(d) | ordinary rate |
MA000049 | Airport Employees Award 2010 | 30 | 30.8 | overtime rate |
MA000092 | Alpine Resorts Award 2010 | 25 | (-) | (-) |
MA000060 | Aluminium Industry Award 2010 | 21 | 21.8 | ordinary rate |
MA000098 | Ambulance and Patient Transport Industry Award 2010 | 24 | 24.3 | overtime rate |
MA000080 | Amusement, Events and Recreation Award 2010 | 23 | 23.4(d) | ordinary rate |
MA000118 | Animal Care and Veterinary Services Award 2010 | 24 | 24.4 | ordinary rate |
MA000114 | Aquaculture Industry Award 2010 | 22 | (-) | (-) |
MA000079 | Architects Award 2010 | 19 | 19.2(a) | silent |
MA000054 | Asphalt Industry Award 2010 | 24 | 24.8 | ordinary rate |
MA000019 | Banking, Finance and Insurance Award 2010 | 23 | 23.4 - 23.5 | ordinary rate |
MA000001 | Black Coal Mining Industry Award 2010 | 17 | (-) | (-) |
MA000078 | Book Industry Award 2010 | 19 | 19 | ordinary rate (not for some senior staff) |
MA000091 | Broadcasting and Recorded Entertainment Award 2010 | 29, 39, 40, 52, 58, 64, 71, 76 | various | various |
MA000021 | Business Equipment Award 2010 | 30 | (-) | (-) |
MA000095 | Car Parking Award 2010 | 23 | (-) | (-) |
MA000055 | Cement and Lime Award 2010 | 23 | 23.9 | ordinary rate |
MA000070 | Cemetery Industry Award 2010 | 23 | 23.2 | ordinary rate |
MA000120 | Children’s Services Award 2010 | 23 | 23.2(c) | ordinary rate |
MA000022 | Cleaning Services Award 2010 | 28 | 28.9 | ordinary rate |
MA000002 | Clerks—Private Sector Award 2010 | 27 | 27.5 | ordinary rate |
MA000045 | Coal Export Terminals Award 2010 | 18 | (-) | (-) |
MA000083 | Commercial Sales Award 2010 | 23 | 23.4 | ordinary rate |
MA000056 | Concrete Products Award 2010 | 24 | (-) | (-) |
MA000023 | Contract Call Centres Award 2010 | 26 | 26.5 | ordinary rate |
MA000110 | Corrections and Detention (Private Sector) Award 2010 | 22 | 22.3 | silent |
MA000024 | Cotton Ginning Award 2010 | 24 | (-) | (-) |
MA000085 | Dredging Industry Award 2010 | 22 | (-) | (-) |
MA000096 | Dry Cleaning and Laundry Industry Award 2010 | 22 | 22.2 | overtime rate |
MA000075 | Educational Services (Post-Secondary Education) Award 2010 | 24 | 24.3(a), 24.4(a) | ordinary rate |
MA000076 | Educational Services (Schools) General Staff Award 2010 | 27 | 27.2 (a) | ordinary rate |
MA000077 | Educational Services (Teachers) Award 2010 | B.4 | Sched B.4.2 | ordinary rate |
MA000088 | Electrical Power Industry Award 2010 | 26 | 26.3 | ordinary rate |
MA000025 | Electrical, Electronic and Communications Contracting Award 2010 | 26 | (-) | (-) |
MA000003 | Fast Food Industry Award 2010 | 26 | 26.3 | overtime rate |
MA000111 | Fire Fighting Industry Award 2010 | 26 | 26.2(c) | ordinary rate (Private sector only) |
MA000094 | Fitness Industry Award 2010 | 26 | 26.4 | ordinary rate |
MA000073 | Food, Beverage and Tobacco Manufacturing Award 2010 | 33 | 33.1 (d) | ordinary rate |
MA000105 | Funeral Industry Award 2010 | 24 | 24.5 | ordinary rate |
MA000101 | Gardening and Landscaping Services Award 2010 | 22 | (-) | (-) |
MA000061 | Gas Industry Award 2010 | 23 | 23.2 | ordinary rate |
MA000004 | General Retail Industry Award 2010 | 29 | 29.3 | overtime rate |
MA000026 | Graphic Arts, Printing and Publishing Award 2010 | 33 | 33.9 | ordinary rate |
MA000005 | Hair and Beauty Industry Award 2010 | 31 | 31.3 | overtime rate |
MA000027 | Health Professionals and Support Services Award 2010 | 28 | 28.3 | ordinary rate |
MA000007 | Higher Education Industry—General Staff—Award 2010 | 23 | 26.1 | overtime rate (except for HEW9 above at ordinary rate) |
MA000008 | Horse and Greyhound Training Award 2010 | 22 | 22.3 | overtime rate |
MA000028 | Horticulture Award 2010 | 24 | 24.1 | ordinary rate |
MA000009 | Hospitality Industry (General) Award 2010 | 33 | (-) | (-) |
MA000062 | Hydrocarbons Industry (Upstream) Award 2010 | 26 | 26.4 | ordinary rate |
MA000067 | Journalists Published Media Award 2010 | 22 | 22.3 | ordinary rate |
MA000099 | Labour Market Assistance Industry Award 2010 | 23 | 23.3 | overtime rate |
MA000116 | Legal Services Award 2010 | 34 | 34.5 | ordinary rate |
MA000081 | Live Performance Award 2010 | 28, 34, 41, 47 | (-) | (-) |
MA000112 | Local Government Industry Award 2010 | 24 | 24.3 | ordinary rate |
MA000117 | Mannequins and Models Award 2010 | 23 | 23.3(b) | overtime rate |
MA000010 | Manufacturing and Associated Industries and Occupations Award 2010 | 40 | 40.1(d) | ordinary rate |
MA000093 | Marine Tourism and Charter Vessels Award 2010 | 22 | (-) | (-) |
MA000050 | Marine Towage Award 2010 | 22 | (-) | (-) |
MA000030 | Market and Social Research Award 2010 | 22 | 22.2 | ordinary rate |
MA000059 | Meat Industry Award 2010 | 36 | 36.2 | overtime rate |
MA000031 | Medical Practitioners Award 2010 | 24 | 24.1(d) | ordinary rate |
MA000011 | Mining Industry Award 2010 | 20 | 20.4 | ordinary rate |
MA000104 | Miscellaneous Award 2010 | 22 | (-) | (-) |
MA000032 | Mobile Crane Hiring Award 2010 | 24 | 24.11 | ordinary rate |
MA000033 | Nursery Award 2010 | 26 | (-) | (-) |
MA000034 | Nurses Award 2010 | 28 | 28.2 | overtime rate |
MA000072 | Oil Refining and Manufacturing Award 2010 | 24 | 24.4 | ordinary rate |
MA000063 | Passenger Vehicle Transportation Award 2010 | 23 | 23.3 | ordinary rate |
MA000035 | Pastoral Award 2010 | 31 | 31.3 & 42.2 | ordinary rate |
MA000097 | Pest Control Industry Award 2010 | 22 | (-) | (-) |
MA000069 | Pharmaceutical Industry Award 2010 | 25 | (-) | (-) |
MA000012 | Pharmacy Industry Award 2010 | 26 | 26.3 | overtime rate |
MA000036 | Plumbing and Fire Sprinklers Award 2010 | 33 | (-) | (-) |
MA000051 | Port Authorities Award 2010 | 21 | 21.3 | ordinary rate |
MA000052 | Ports, Harbours and Enclosed Water Vessels Award 2010 | 20 | 20.2 | ordinary rate |
MA000074 | Poultry Processing Award 2010 | 26 | (-) | (-) |
MA000057 | Premixed Concrete Award 2010 | 23 | 23.9 | ordinary rate |
MA000108 | Professional Diving Industry (Industrial) Award 2010 | 24 | (-) | (-) |
MA000109 | Professional Diving Industry (Recreational) Award 2010 | 22 | (-) | (-) |
MA000037 | Quarrying Award 2010 | 28 | 28.9 | ordinary rate |
MA000013 | Racing Clubs Events Award 2010 | 29 | (-) | (-) |
MA000014 | Racing Industry Ground Maintenance Award 2010 | 23 | (-) | (-) |
MA000015 | Rail Industry Award 2010 | 23 | 23.3 | ordinary rate |
MA000106 | Real Estate Industry Award 2010 | 24 | 24.2 | ordinary rate |
MA000058 | Registered and Licensed Clubs Award 2010 | 28 | 28.5 | overtime rate |
MA000119 | Restaurant Industry Award 2010 | 33 | 33.5 | overtime rate |
MA000038 | Road Transport and Distribution Award 2010 | 27 | 27.7 | overtime rate |
MA000107 | Salt Industry Award 2010 | 23 | 23.4 | ordinary rate |
MA000068 | Seafood Processing Award 2010 | 26 | 26.1(d) | ordinary rate |
MA000016 | Security Services Industry Award 2010 | 23 | (-) | (-) |
MA000040 | Silviculture Award 2010 | 26 | (-) | (-) |
MA000100 | Social, Community, Home Care and Disability Services Industry Award 2010 | 28 | 28.2 | ordinary rate |
MA000082 | Sporting Organisations Award 2010 | 24 | 24.3(a) | time and a half within fortnight or single time within 12 months |
MA000121 | State Government Agencies Administration Award 2010 | 23 | 23.4 | ordinary rate |
MA000053 | Stevedoring Industry Award 2010 | 19 | (-) | (-) |
MA000084 | Storage Services and Wholesale Award 2010 | 24 | 24.3 | ordinary rate |
MA000087 | Sugar Industry Award 2010 | 31 | 31.6 | ordinary rate |
MA000103 | Supported Employment Services Award 2010 | 21 | 21.7 | ordinary rate (Monday – Friday only) |
MA000066 | Surveying Award 2010 | 23 | 23.1(b) | ordinary rate |
MA000041 | Telecommunications Services Award 2010 | 21 | 21.5 | ordinary rate |
MA000017 | Textile, Clothing, Footwear and Associated Industries Award 2010 | 39 | 39.5 | overtime rate |
MA000071 | Timber Industry Award 2010 | 30 | 31.1 | overtime rate |
MA000042 | Transport (Cash In Transit) Award 2010 | 28 | 28.2 | ordinary rate |
MA000102 | Travelling Shows Award 2010 | 23 | (-) | (-) |
MA000089 | Vehicle Manufacturing, Repair, Services and Retail Award 2010 | 28 | 28.3 | overtime rate |
MA000043 | Waste Management Award 2010 | 30 | 30.5 | ordinary rate |
MA000113 | Water Industry Award 2010 | 26 | 26.3 | ordinary rate |
MA000090 | Wine Industry Award 2010 | 30 | 29.6 | ordinary rate |
MA000044 | Wool Storage, Sampling and Testing Award 2010 | 25 | 25.5 | ordinary rate |
1 [2014] FWC 1790
2 AMWU Submission, 22 March 2015
3 [2014] FWCFB 1788
4 4 Yearly Review of Modern Awards: Preliminary Jurisdictional Issues [2014] FWCFB 1788 at paragraph [32]
5 Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24
6 R v Hunt; Ex parte Sean Investments Ltd (1979) 180 CLR 322 at 329 per Mason J; R v Toohey: Ex parte Meneling Station Pty Ltd (1982) 158 CLR 327 at 333 per Gibbs CJ; Friends of Hichinbrook Society Inc v Minister for Environment (No. 3) (1997) 77 FCR 153; Australian Competition and Consumer Commission v Leelee Pty Ltd [1999] FCA 1121; Edwards v Giudice [1999] FCA 1836; National Retail Association v Shop Distributive & Allied Employees Association [2014] FCAFC 118 at paragraph 56
7 Shop, Distributive and Allied Employees Association (No. 2) (2012) 205 FCR 227 at paragraph 35 per Tracey J
8 [2014] FCAFC 118
9 [2014] FCAFC 118 at paragraph [109]
10 4 Yearly Review of Modern Awards, Preliminary Jurisdictional Issues [2014] FWCFB 1788 at paragraph [60].
11 See Fair Work (Transitional Provisions and Consequential Amendments) Act2009
12 [2014] FWCFB 1788 at paragraphs [35]–[36]
13 [2008] AIRCFB 550
14 [2008] AIRCFB 1000 at paragraph 38
15 [2009] AIRCFB 345 at paragraph 11
16 [2013] FWCFB 2170 and [2013] FWCFB 8859
17 Transcript, 5 May 2015 at PN 653 and 659
18 [2014] FWCFB 1788 at paragraph [27]
19 Transcript, 5 May 2015 at PN 200
20 Ibid
21 (1994) 57 IR 121
22 (1995) 62 IR 48.
23 (1995) 62 IR 48 at pp. 79–80
24 Print L9048
25 Ibid at pp 9-10
26 (1995) 61 IR 236
27 Ibid at pp 255–257
28 (1995) 62 IR 48 at pp. 62–65
29 (1995) 62 IR 48 at pp. 65–66
30 Ibid at pp. 68-69
31 Ibid at p. 81
32 Personal/Carer’s Leave Test Case - Stage 2 - March 1996 (1996) 66 IR 138 at p.151
33 (1995) 61 IR 236
34 Print N0343
35 (1996) 66 IR 138 at pp. 151-152
36 Ibid at pp. 152-153
37 Ibid at pp. 153-154
38 L0125 V006 S Print N1781, Senior Deputy President Marsh - 20 May 1996
39 (2005) 143 IR 245
40 Ibid at paragraph [422]
41 Re Furnishing Industry Association of Australia (Queensland) Limited Union of Employers, Print Q9115 at paragraph [42], 27 November 1998 per Giudice J, Watson SDP, Hall DP, Bacon C and Edwards C; Cetin v Ripon Pty Ltd (T/as Parkview Hotel) (2003) 127 IR 205 at paragraph [48]
42 Ai Group Submission, 18 March 2015 at paragraph 48
43 Ai Group supplementary submission 18 May 2015 at paragraphs 53–54
44 Ibid at paragraph 54
45 Ai Group; Printing Industries Association of Australia (PIAA); ACTU; Australian Nursing & Midwifery Federation (ANMF); Australian Workers Union (AWU); Construction, Forestry, Mining and Energy Union (Construction & General Division) (CFEMU (C&G)); Construction, Forestry, Mining and Energy Union (Mining & Energy Division) (CFMEU (M&E)); Health Services Union (HSU); Maritime Union of Australia (MUA); Textile, Clothing & Footwear Union of Australia (TCFUA); Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union - Vehicle division (‘AMWU – Vehicle Division’)
46 AMWU Submission, 22 March 2015 at paragraphs 43–55
47 Ibid at paragraph 56
48 Ibid at paragraphs 57–58
49 Ibid at paragraphs 59–61
50 Ibid at paragraphs 62–73
51 Ibid at paragraphs 74–78
52 Ibid at paragraphs 79–86
53 Ibid at paragraphs 87–88
54 Ibid at paragraphs 89–92
55 (2005) 143 IR 245
56 Ai Group Reply Submission, 23 April 2015
57 Ibid at paragraphs 50–84
58 PIAA Reply Submission, 22 April 2015
59 Ibid at paragraph 14
60 Ibid at paragraph 16
61 Ai Group Submissions in Reply, 23 April 2015 at paragraph 2
62 MBA Submission, 18 March 2015
63 NFF Reply Submission, 22 April 2015
64 ACTU Reply Submission, 23 April 2015
65 AWU Reply Submission, 23 April 2015
66 CFMEU (Construction and General Division) Reply Submission, 23 April 2015
67 Ibid at paragraph 21
68 CFMEU (Mining and Energy Division) Reply Submission, 23 April 2015
69 Ibid at paragraph 7.5
70 Ibid at paragraph 10
71 Ibid at paragraph 16
72 Ibid at paragraph 17
73 Ibid at paragraph 19
74 Ibid at paragraphs 20–50
75 HSU Reply Submission, 23 April 2015
76 Ibid at paragraph 5
77 TCFUA Reply Submission, 23 April 2015
78 Transcript, 5 May 2015 at PN 653 and 659
79 See Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27 at paragraph [47]; CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at paragraph [408]; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at paragraph [69]
80 (1932) 47 CLR 1 at p.7
81 (1949) 78 CLR 529 at p.550
82 (1994) 56 IR 114 at p.136
83 (1994) 57 IR 121
84 AMWU submission, 22 March 2015 at paragraph 1
85 Ibid at paragraph 3
86 Transcript, 19 May 2015 at PN 1035, also see PN 1108
87 Ibid at PN 1028
88 Ibid at PN 1092–1094
89 Also see Transcript, 19 May 2015 at PN 1161, 1221 and 1225
90 See Transcript, 5 May 2015 at paragraphs 104-108
91 AMWU Submission, 22 March 2015 at paragraphs 41–91
92 Ibid at paragraphs 45–46
93 Ibid at paragraph 47
94 Ibid at paragraph 57
95 Ibid at paragraphs 59–60
96 Ibid at paragraphs 68-73
97 ACTU Reply Submission, 23 April 2015 at paragraph 149
98 AMWU submission, 22 March 2015 at paragraphs 76 - 77
99 Further, see Ai Group Submission in Reply, 23 April 2015 at paragraphs 71-74
100 Transcript, 5 May 2015 at PN 242 and 244.
101 See generally: Re Bupa Care Services Pty Ltd[2010] FWAFB 2762; Re MSA Security Officers Certified Agreement 2003, PR93765 per Watson SDP, Blair DP and Lewin C, 15 September 2003; Black Crow Organics [2010] FWAA 5060; Modern Award Review 2012 - Award Flexibility [2013] FWCFB 2170 at paragraphs [122] - [137] and [151] - [159]
102 Transcript, 5 May 2015at PN 242–244
103 Ai Group submission, 18 March 2015 at paragraph 6
104 Clauses 26.3 and 22.3 respectively
105 The Road Transport (Long Distance Operations) Award 2010 has an overtime allowance incorporated in the rate per kilometre payment method
106 Transcript, 5 May 2015 at PN 200
107 Ibid
108 2015 Intergenerational Report Australia in 2055, March 2015 at p.ix
109 See ‘Childcare and Early Childhood Learning, Inquiry Report’, Productivity Commission 2014 at p.186.
110 Ibid at p. 196
111 Ibid at pp.183-186; 2015 Intergenerational Report at pp. 16-21
112 Ibid at pp. 201-202
113 Ibid at p. 223
114 Ibid at p. 234
115 AWRS First Finding Report, Table 6.3
116 Ai Group submission, 18 March 2015 at paragraph 114
117 Ibid at paragraphs 115–116
118 Annual Wage Review 2014-15 [2015] FWCFB 3500 at paragraphs [309]-[310] and [345]-[359]
119 Ai Group submission, 18 March 2015 at paragraph 120
120 See generally the discussion in the Annual Wage Review 2014-15 [2015] FWCFB 3500 at paragraphs [455]–[473]
121 Ai Group submission, 18 March 2015 at paragraphs 130–131
122 Ibid at paragraphs 99 and 137–138
123 See the summary table at paragraph 76 of Ai Group submission, 18 March 2015
124 ACTU Reply Submission, 23 April 2015 at paragraph 52
125 Zeytinoglu I. U., G.B. Cooke and S.L. Man (2009) ‘Flexibility: Whose Choice is it Anyway?’ Industrial Relations, 64(4), pp 555-574
126 Transcript, 5 May 2015 at PN 289
127 AMWU (Vehicle Division) Reply Submission, 28 April 2015 at paragraphs 17–31
128 See Print J1613; Print J3282; and Print J3283
129 Print K0701; Print K0703; and Print K8918
130 PR928573 at paragraphs 96–103
131 Ibid at paragraphs 104-105
132 Ai Group Supplementary Note, 25 May 2015 at paragraph 6
133 Ibid at paragraph 5
134 See Award Modernisation [2008] AIRCFB 1000 at [145]-[149] and Award Modernisation [2009] AIRCFB 345 at [145]-[157]
135 Ai Group Supplementary Note, 25 May 2015 at paragraph 9
136 [2014] FWCFB 1788 at paragraph 24
137 [2009] AIRCFB at paragraph 5
138 The CFMEU (C&G) submission does not deal with the arbitral history of the other award said to be of particular interest to the union: the Mobile Crane Hiring Award 2010.
139 At paragraphs 24-35
140 See Parts Q0524 and Q0523
141 Print R7494
142 PR920659
144 PR920660
145 PR948240 at paragraphs [26]-[31]
146 Transcript, 5 May 2015 at PN 418-419 per Mr Calver
147 See [2013] FWCFB 2170 and [2013] FWCFB 8859
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