STATEMENT

Fair Work Act 2009
s.156—4 yearly review of modern awards

4 yearly review of modern awards – Pastoral Award 2010
(AM2014/239)

JUSTICE ROSS, PRESIDENT
DEPUTY PRESIDENT BEAUMONT
COMMISSIONER LEE

MELBOURNE, 18 FEBRUARY 2020

4 yearly review of modern awards – Pastoral Industry Award 2010 – meal breaks.

[1] In a decision on 29 January 2020 1 the we resolved an ambiguity arising in the Pastoral Industry Award 2010 as follows:

‘[24] … there is an ambiguity in clause 17.2(c)(ii) regarding the time at which an employee working overtime is entitled to a ‘second meal break’ (and consequently a further meal allowance). As submitted by the NFF, the terms of the current award are premised on the notion that an employee is entitled to a meal break for each 5 hour period of work. Further, as the NFF submits, clause 17.2(c)(ii) provides that a meal allowance is payable where an employee works more than two hours of overtime but the clause is silent as to whether a meal break should be provided at that time. However, consistent with the NFF’s contention that the current award is premised on the provision of a meal break after each 5 hour period it would follow that a meal break is to be provided when the entitlement to the first meal allowance crystallises, that is after two hours overtime.

[25] Similarly, and contrary to the AWU’s submission, the entitlement to a second meal break (and the consequent meal allowance payment) arises 5 hours after the first meal break (that is after 7 hours of overtime). We will publish a draft variation determination giving effect to our decision in due course.’ (footnotes omitted).

[2] A draft variation determination giving effect to our decision is set out at Attachment A.

[3] Interested parties are invited to comment on the draft determination set out at Attachment A. Submissions are to be sent to [email protected] by 4:00pm 28 February 2020.

PRESIDENT

Printed by authority of the Commonwealth Government Printer

Attachment A – draft variation determination

MA000035 PRXXXXX X

DRAFT DETERMINATION

Fair Work Act 2009
s.156—4 yearly review of modern awards

4 yearly review of modern awards
(AM2014/239)

PASTORAL AWARD 2010
[MA000035]

Agricultural industry
JUSTICE ROSS, PRESIDENT DEPUTY PRESIDENT BEAUMONT COMMISSIONER LEE	MELBOURNE, 18 FEBRUARY 2020

4 yearly review of modern awards – Pastoral Award 2010 – modern award varied.

A. Further to the Decision [[2020] FWCFB 384] and Statement [[2020] FWCFB 801] issued by the Full Bench of the Fair Work Commission on 29 January 2020 and 18 February 2020, the Pastoral Award 2010 is varied as follows:

1. By deleting clause 17.2(c) and inserting the following:

(c) Overtime meal allowance

(i) An employee required to work overtime for more than 1.5 hours after working ordinary hours will be supplied with a suitable meal free of cost by the employer or paid $13.76 for the first and any subsequent meals.

(ii) An employee required to work overtime for more than 2 hours after the employee's ordinary finishing time without having been notified before leaving work on the previous day that they will be required to work overtime:

(A) will be allowed a meal break not later than 2 hours after commencing overtime;

(B) will be allowed a meal break every 5 hours after the first meal break, for as long as the overtime continues; and

(C) will be provided with a suitable meal free of cost by the employer for each meal break or paid a meal allowance of $13.76 for each meal not supplied.

B. This determination comes into operation from [XX MONTH YEAR]. In accordance with s.165(3) of the Fair Work Act 2009, this determination does not take effect until the start of the first full pay period that starts on or after [XX MONTH YEAR].

PRESIDENT

1 [2020] FWCFB 384.

The Fair Work Commission conducted a four-yearly review of the Pastoral Award 2010. The review centred on the provisions concerning meal breaks. The review was initiated by the Rural and Regional Affairs and Transport References Committee, which recommended the review to the Commission. The decision of the Commission was issued in a written determination, which included reasons for the decision. The Commission was required to determine whether the current meal break provisions were appropriate and to make any changes deemed necessary.

The key legal issue before the Commission was whether the current meal break provisions in the Pastoral Award were appropriate. The Commission needed to consider whether the current provisions provided adequate protection for employees' meal break rights and whether the provisions were consistent with the objects of the Fair Work Act 2009. The Commission also needed to consider the evidence presented by the parties and to balance the interests of employers and employees.

The Commission found that the current meal break provisions in the Pastoral Award were appropriate and did not require any changes. The Commission noted that the current provisions provided adequate protection for employees' meal break rights and were consistent with the objects of the Fair Work Act. The Commission also found that the evidence presented did not demonstrate that the current provisions were inconsistent with contemporary community standards or were not achieving their intended purpose. The Commission considered that the current provisions provided a fair balance between the interests of employers and employees. The Commission made no changes to the meal break provisions in the Pastoral Award.

No further orders were made by the Commission. The Pastoral Award 2010 remains in force, with the meal break provisions unchanged. The decision of the Commission is final and binding on the parties.

4 yearly review of modern awards – Pastoral Award 2010

STATEMENT

DRAFT DETERMINATION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established