4 yearly review of modern awards – Penalty rates

[2017] FWC 4109

[2017] FWC 4109

FAIR WORK COMMISSION

STATEMENT

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

4 yearly review of modern awards – Penalty rates
(AM2014/305)

JUSTICE ROSS, PRESIDENT MELBOURNE, 4 AUGUST 2017

4 yearly review of modern awards - penalty rates – hospitality and retail sectors – outstanding issues.

[1] On 23 February 2017 the Penalty Rates Full Bench issued a decision dealing with the weekend and public holiday penalty rates, and some related matters, in a number of awards in the Hospitality and Retail sectors (the Penalty Rates decision). 1 On 5 June 2017 the Full Bench issued the Penalty Rates – Transitional Arrangements decision2 which dealt with the implementation of the Penalty Rates decision including the determination of various transitional arrangements. Chapter 8 of the Transitional Arrangements decision set out a list of award specific matters that remain outstanding.

[2] A Statement published on 6 July 2017 3 outlined the issues that remain to be concluded and in respect of which no submissions had been received from interested parties confirming whether the matters identified were to be pursued.

[3] Parties were directed to make submissions by Friday, 28 July 2017 and to provide a copy of their application to vary along with a proposed course of action in respect of their claim. 4 The Statement noted that if no material was received by the time indicated it would be assumed that no party intends to pursue any further variation of the relevant award and the review of weekend penalty rates in the relevant award will be considered to be complete.

[4] Applications to vary were received from 4 organisations:

Organisation	Award	Date
Clubs Australia Industrial	Registered and Licensed Clubs Award 2010	28 July 2017
Hair & Beauty Australia 5	Hair and Beauty Industry Award 2010	28 July 2017
Restaurant and Catering Australia	Restaurant Industry Award 2010	28 July 2017
Australian Retailers Association	General Retail Industry Award 2010	31 July 2017

[5] Additionally the Pharmacy Guild of Australiamade a submission regarding the Pharmacy Industry Award 2010 (the Pharmacy Award). 6Submissions were also received from The Tradies Group7 and an individual8 regarding the Registered and Licensed Clubs Award 2010 (the Clubs Award).

(i) Clubs Award

[6] Clubs Australia Industrial filed an application seeking to pursue ‘Option 1’ as outlined in paragraph [997] of the Penalty Rates decision being the ‘merging’ of the Clubs Award and Hospitality Industry (General) Award 2010 (the Hospitality Award). In their application they seek several variations to the Hospitality Award and then the revocation of the Clubs Award.

[7] The Tradies Group made a submission stating Clubs Australia does not represent the views of all employers in the Clubs sectors. Their submission, while limited in scope, appears to support the retention of the current penalty rates in the Clubs Award. A submission received from an individual employee in the Clubs industry also opposes any change to penalty rates in the Clubs Award.

[8] The application by Clubs Australia has been allocated a new matter number (AM2017/39) and will be referred to the Full Bench constituted to deal with a claim by Clubs Australia in relation to public holidays 9. That Full Bench will determine the future conduct of the matter.

(ii) Hair and Beauty Award

[9] Ai Group, on behalf of Hair & Beauty Australia, filed a submission and draft determination on 28 July 2017 seeking to vary penalty rates in the Hair and Beauty Industry Award 2010, as follows:

• reduce Sunday penalty rates for full-time, part-time and casual employees from 200% to 150%; and



• reduce public holiday penalty rates for full-time, part-time and casual employees from 250% to 225%.

[10] This application has been allocated a new matter number (AM2017/40) and will be referred to a Full Bench (Catanzariti VP, Asbury DP and Lee C) for hearing and determination.

(iii) Pharmacy Award

[11] The Penalty Rates decision expressed the provisional view that a number of penalty rates in the Pharmacy Award should be reviewed. These rates are the loadings applicable for work performed before 8.00 am, between 7.00 pm to 9.00 pm and from 9.00 pm to midnight on Sundays; Saturday work and work performed before 7.00 am and between 9.00 pm and midnight, Monday to Friday. 10

[12] In a submission filed on 1 August 2017 the Pharmacy Guild of Australia stated that it is not pressing any claim to vary these penalty rates.

(iv) Restaurant Award

[13] Restaurant and Catering Industrial filed an application to vary the Restaurant Industry Award 2010 seeking to vary Sunday penalty rates for all full-time and part-time employees and for Level 3 to 6 casual employees as follows:

Type of employment	Monday to Friday	Saturday	Sunday	Public holidays
%	%	%	%
Full-time and part-time	100	125	150 125	225
Casual Introductory Level, Level 1, Level 2 (inclusive of 25% casual loading)	125	150	150	250
Casual Level 3 to Level 6 (inclusive of casual 25% loading)	125	150	175	250

[14] This application has been allocated a new matter number (AM2017/42) and will be referred to a Full Bench (Hatcher VP, Catanzariti VP and Lee C). It will be a matter for that Full Bench to determine whether RCI is to be provided with a further opportunity to litigate its claim.

(v) Retail Award

[15] The Australian Retailers Association filed an application to vary clause 30.3(c) of the General Retail Industry Award 2010 in respect of the Sunday rate applicable to shiftworkers as follows:

Any shiftwork performed on a Sunday will be paid at the rate of 200 175% (225 200% for casuals) of the ordinary time rate of pay.

[16] In correspondence on 28 March 2017 the Shop, Distributive and Allied Employees Association (SDA) confirmed that they are pressing their claim in respect of Saturday and late night rates for casual employees. 11

[17] [17]On 6 April 2017 the Commission issued Directions in relation to the SDA claim. On 4 May 2017 the SDA wrote to the Commission seeking that the Directions be vacated in light of the foreshadowed judicial review. In response to correspondence from the Commission, on 11 May 2017 Australian Business Industrial replied that they did not oppose the course of action proposed by the SDA. The 6 April 2017 Directions were vacated accordingly and, consistent with that position, the matters in relation to the General Retail Industry Award 2010 will be not dealt with until after the judicial review is heard and determined.

[18] These applications have been allocated a new matter number (AM2017/43) and will be referred to a Full Bench in due course.

PRESIDENT

 1   [2017] FWCFB 1001

 2   [2017] FWCFB 3001

 3   [2017] FWCFB 3617

 4   The Pharmacy Guild of Australia sought, and was granted, an extension to 1 August 2017

 5   Ai Group filed a draft determination and draft directions on behalf of Hair & Beauty Australia

 6   Submission from the Pharmacy Guild of Australia, 2 August 2017

 7   Submission from The Tradies Group, 27 July 2017

 8   Submission from individual employee, 31 July 2017

 9   AM2014/301

 10   [2017] FWCFB 1001 at [1874]–[1892]

 11   See SDA correspondence of 28 March 2017 and submission of 2 March 2015

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