4 yearly review of modern awards—Plain language project

[2019] FWCFB 5409

[2019] FWCFB 5409

FAIR WORK COMMISSION

DECISION

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

4 yearly review of modern awards—Plain language project
(AM2016/15)

JUSTICE ROSS, PRESIDENT
VICE PRESIDENT HATCHER
COMMISSIONER HUNT MELBOURNE, 20 AUGUST 2019

4 yearly review of modern awards – plain language project – determination of various issues

CONTENTS

Chapters		Page	Paragraph
1.	Introduction	6	[1]
2.	Scope of the ‘light touch’ review of modern awards	6	[3]
3.	Scope of the plain language re-drafting of selected awards	11	[25]
4.	Plain language re-drafting of standard clauses	16	[47]
5.	Annual, weekly and hourly rates in minimum wages tables	27	[103]
6.	Cross-references in coverage clauses	29	[115]
7.	Reasonable overtime	30	[119]
8.	National Training Wage	33	[134]
9.	Terminology of rates	34	[141]
10.	Spread of hours	38	[154]
11.	Shutdown provisions	53	[236]
12.	Hourly rates of pay schedules	57	[248]
13.	Next steps	58	[255]
Attachment A – comparison showing how awards have been restructured	65
Attachment B – draft determinations published for 12 awards	69
Attachment C – Joinery Award and Mobile Crane Award - summary of issues	70
Attachment D – 56 awards containing reference to an employee being paid the higher of the annual leave loading or a shift ‘loading or ‘allowance’	72
Attachment E – awards being reviewed in relation to the Alteration clause	74
Attachment F - 80 modern awards containing a shutdown provision	84

ABBREVIATIONS

ABI	Australian Business Industrial and the New South Wales Business Chamber
Act	Fair Work Act 2009 (Cth)
AHA	Australian Hotels Association
Ai Group	Australian Industry Group
AMIEU	Australasian Meat Industry Employees Union
AMWU	Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union
ANMF	Australia Nursing & Midwifery Federation
AWU	The Australian Workers Union
CEPU	Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union
CFMEU	Construction, Forestry, Mining and Energy Union
CFMMEU (C&G Division)	Construction, Forestry, Maritime, Mining and Energy Union (Construction and General Division)
CFMMEU (MD)	Construction, Forestry, Maritime, Mining and Energy Union – Manufacturing Division
CFMMEU – M&E	Construction, Forestry, Maritime, Mining and Energy Union – Mining and Energy Division
CPSU	Community and Public Sector Union
FAAA	Flight Attendants’ Association of Australia
HIA	Housing Industry Association
HSU	Health Services Union
IEU	Independent Education Union of Australia
Independent Schools	Independent Schools of Victoria, Independent Schools Tasmania and the Associations of Independent Schools of NSW
MBA	Master Builders Australia
MTA	The Motor Trades Association of South Australia
NES	National Employment Services
NTW Schedule	National Training Wage Schedule
PLED	Plain Language Exposure Draft
SDA	the Shop, Distributive and Allied Employees Association
UV	United Voice

ABBREVIATIONS - Awards

Aged Care Award 2010 (Aged Care Award)

Aircraft Cabin Crew Award 2010 (Aircraft Cabin Crew Award)

Air Pilots Award 2010 (Air Pilots Award)

Airline Operations—Ground Staff Award 2010 (Airline Ground Staff Award)

Airport Employees Award 2010 (Airport Employees Award)

Animal Care and Veterinary Services Award 2010 (Animal Care Award)

Aquaculture Industry Award 2010 (Aquaculture Award)

Architects Award 2010 (Architects Award)

Black Coal Mining Industry Award 2010 (Black Coal Award)

Building and Construction General On-site Award 2010 (Building On-site Award)

Business Equipment Award 2010 (Business Equipment Award)

Contract Call Centres Award 2010 (Call Centres Award)

Children’s Services Award 2010 (Children’s Services Award)

Cleaning Services Award 2010 (Cleaning Award)

Clerks – Private Sector Award 2010 (Clerks Award)

Coal Export Terminals Award 2010 (Coal Terminals Award)

Educational Services (Teachers) Award 2010 (Teachers Award)

Electrical, Electronic and Communications Contracting Award 2010 (Electrical Contracting Award)

Fast Food Industry Award 2010 (Fast Food Award)

Food, Beverage and Tobacco Manufacturing Award 2010 (the Food Manufacturing Award)

General Retail Industry Award 2010 (Retail Award)

Graphic Arts, Printing and Publishing Award 2010 (Graphic Arts Award)

Hair and Beauty Industry Award 2010 (Hair and Beauty Award)

Higher Education Industry – General Staff Award 2010 (the Higher Education General Staff Award)

Hospitality Industry (General) Award 2010 (Hospitality Award)

Hydrocarbons Industry (Upstream) Award 2010 (Upstream Award)

Joinery and Building Trades Award 2010 (the Joinery Award)

Manufacturing and Associated Industries and Occupations Award 2010 (Manufacturing Award)

Mannequins and Models Award 2010 (Mannequins and Models Award)

Marine Towage Award 2010 (Marine Towage Award)

Maritime Offshore Oil and Gas Award 2010 (Offshore Oil and Gas Award)

Miscellaneous Award 2010 (the Miscellaneous Award)

Mobile Crane Hiring Award 2010 (Mobile Crane Award)

Pharmacy Industry Award 2010 (Pharmacy Award)

Pharmaceutical Industry Award 2010 (Pharmaceutical Industry Award)

Professional Employees Award 2010 (Professional Employees Award)

Restaurant Industry Award 2010 (Restaurant Award)

Seafood Processing Award 2010 (Seafood Processing Award)

Seagoing Industry Award 2010 (Seagoing Award)

Security Services Industry Award 2010 (Security Award)

Social, Community, Home Care and Disability Services Industry Award 2010 (SCHADS Award)

Storage Services and Wholesale Award 2010 (Storage Services Award)

Sugar Industry Award 2010 (Sugar Industry Award)

Textile, Clothing, Footwear and Associated Industries Award 2010 (TCF Award)

Timber Industry Award 2010 (Timber Award)

Vehicle Manufacturing, Repair, Services and Retail Award 2010 (Vehicle Award)

1. Introduction

[1] On 28 February 2019 (the February 2019 Statement) we issued a Statement 1 which set out the current status of matters before the Plain Language Full Bench and the next steps in the plain language project. We also expressed some provisional views in relation to a number of outstanding issues. No party requested an oral hearing in respect of any of the outstanding issues. This decision determines a number of those issues.

[2] The following submissions were filed in response to the provisional views expressed in the February 2019 Statement:

•  Australian Industry Group 22 March 2019 and 18 April 2019 (Ai Group)

•  Australian Business Lawyers & Advisors (ABI)

•  Australian Manufacturing Workers’ Union (AWMU)

•  Australian Workers’ Union (AWU)

•  CFMMEU (Construction and General Division) 2 April 2019 and 17 April 2019 (CFMMEU C&G Division)

•  CFMMEU (Manufacturing Division) (CFMMEU (MD))

•  CFMMEU (Mining and Energy Division) (CFMMEU (M&E))

•  Communications Electrical Electronic Information Postal Plumbing and Allied Services Union (CEPU)

•  Community and Public Sector Union (CPSU)

•  Housing Industry Association (HIA)

•  Master Builders Australia (MBA)

•  United Voice (UV)

2. Scope of the ‘light touch’ review of modern awards

[3] The plain language project being conducted as part of the Review has three elements:

•  the plain language re-drafting of five ‘standard clauses’, which appear in most modern awards, namely:

◦  Award flexibility;

◦  Consultation;

◦  Dispute resolution;

◦  Termination of employment;

◦  Redundancy.

•  the plain language re-drafting of selected modern awards; and

•  the plain language ‘light touch’ process to be applied to all modern awards.

[4] Five decisions 2 have been issued in relation to the plain language re-drafting of standard clauses. Determinations3 varying most modern awards were issued on 26 October 2018 and 13 December 2018. A number of award specific issues remain outstanding and we discuss those issues in Chapter 4 of this decision.

[5] In this chapter of the decision we deal with the scope of the ‘light touch’ review of modern awards. The plain language re-drafting of selected modern awards is discussed in chapter 2 of this decision.

[6] A Statement published on 13 February 2019 4 provided a timeline for the finalisation of exposure drafts including further variations arising from the plain language ‘light touch’ process. The 28 February 2019 Statement noted that the ‘light touch’ process would include the following:

(i) Changes to the structure of exposure drafts in Groups 1 to 3 in accordance with the plain language structure. This has already been completed for the awards in group 4.

(ii) Definitions will be moved to clause 2 in all exposure drafts.

(iii) Occupational health and safety references. 5

(iv) Annual, weekly and hourly rates in minimum wages tables. 6

(v) Cross-references in coverage clauses.

(vi) Consistency with the Plain Language Guidelines and removal of archaic language.

(vii) Re-drafting some particularly complicated clauses in exposure drafts to ensure that they are simple and easy to understand.

[7] The intention was that the plain language ‘light touch’ process would apply to all modern awards (except those awards which were to be completely redrafted – see chapter 2 of this decision).

[8] An example of an exposure draft which has been through the ‘light touch’ process was published with a Statement 7 issued on 18 April 2019. The example is based on the Gardening and Landscape Services and Exposure Draft (the Gardening Award example). A conference was held on 29 April 2019 to allow parties the opportunity to comment on the scope of the plain language light touch amendments. A transcript of the conference is available on the Commission’s website.

[9] During the course of the 29 April 2019 conference, MBA raised a concern about the timing of the ‘light touch’ process in relation to the Construction group of awards. We confirm that these awards will not go through the ‘light touch’ process until the substantive claims have been finalised.

[10] At the conference, a number of parties sought an opportunity to file written submissions in relation to the Gardening Award example and the scope of the light touch process. Interested parties were given an opportunity to file further submissions. 8 As a number of matters to be implemented in the light touch process have already been determined the parties are asked to focus on:

•  Changes in wording that have resulted from an application of the plain language guidelines; and

•  Issues arising from the translation from the plain language re-drafting of the General Retail Industry Award 2010 and other awards that have been included in the plain language project.

[11] The following parties filed submissions:

•  CFMMEU (M&E);

•  Australia Nursing and Midwifery Federation (ANMF);

•  CFMMEU (C&G);

•  HIA;

•  Flight Attendants’ Association of Australia (FAAA);

•  Health Services Union (HSU);

•  ABI;

•  Ai Group; and

•  CFMMEU (MD).

[12] A further Statement 9 was issued on 17 May 2019 which attached a summary of the above submissions and invited parties to comment on the accuracy of the summary by 4:00 pm Thursday 23 May 2019. Parties were also informed that absent any request for an oral hearing the Full Bench will determine the matters raised in the submissions on the papers. No party requested an oral hearing. The MBA subsequently made a submission confirming its view about the timing of the light touch review of the Construction group of awards and commenting on the CFMMEU (C&G Division) and HIA submission regarding some award specific issues.

[13] We now return to the scope of the plain language project and the matters set out at (i) to (vii) in paragraph [6] above.

[14] Items (ii) to (v) above have either already been the subject of decisions by the Commission or are determined in this decision and will form part of the light touch update for each modern award.

[15] Before turning to items (i), (vi) and (vii) we propose to briefly summarise the submissions set out at [11] above.

[16] The general tenor of the submissions made – both at the conference and subsequently in writing – urged the Commission to take a cautious, indeed minimalist, approach to changing existing award terms during the light touch process, on the basis that such changes may have unintended consequences.

[17] For example, the CFMMEU (MD) submission identifies a number of clauses in the Gardening Award example which are said to be inconsistent with other award terms; may cause confusion; may change the meaning of an existing award term in a substantive way; or be misleading. The CFMMEU (MD) submission was generally supported by the other unions who made submissions.

[18] ABI and Ai Group both support a minimalist approach to the plain language ‘light touch’ process. ABI submits:

‘As indicated during the Conference on Monday 29 April 2019, ABI and NSWBC support a very confined roll out of the light touch process. Having been involved with the plain language drafting project since its inception, ABI and the NSWBC are conscious of the unintended consequence which can arise from even the most innocuous of drafting changes.

Our clients submit that any further application of the light touch process to other exposure drafts should be confined to drafting features such as headings and archaic language, and that parties have the opportunity to comment on each exposure draft.’ 10 (Emphasis added)

[19] Similarly, Ai Group submits that the Commission should exercise ‘as light a touch as possible’ in implementing this process in order to avoid unforeseen substantive amendments to modern awards. 11 Ai Group goes on to submit:

‘In … we are concerned that if a further substantial redrafting process is now undertaken, parties (including ourselves) will not have resources to devote to undertaking further reviews as comprehensively as may be necessary to ensure that further unintended variations to award entitlements and obligations are not implemented inadvertently.

Also, substantive variations may occur with the result that awards are amended in a manner that is not necessary in the sense contemplated by s.138, or in keeping with s.134.

Consequently, in practical terms, we urge the Commission to adopt a very limited approach when making amendments across the award system to apply the plain language drafting principles.

The Commission should also consider limiting the extent to which it seeks to implement wording changes made in the Hospitality Plain Language Exposure Draft, Restaurant Plain Language Exposure Draft and Retail Plain Language Exposure

Draft across the system. In this regard we are concerned that there may be a range of award specific considerations that necessitate a modified approach being taken across different awards.

The redrafting process should be confined to making structural amendments to implement the plain language award structure, plain language standard clauses and relevant key decisions of common relevance. In this regard we note that interested parties do not appear to have responded to the Commission’s previous invitation to identify clauses that require redrafting by making any such nominations.

To the extent that the Commission does continue with the plain language redrafting process we would urge it to continue to release all drafts in trackchanges format. This, combined with the tables identifying the basis for the changes, greatly assists the parties to undertake the review process.’ 12 (Emphasis added)

[20] The issues raised in the submissions highlight the risks inherent in adopting changes across the award system based on changes which have been made to those selected awards which have been completely redrafted in plain language. We have concluded that the risks involved – particularly the risk of changing the legal effect of an existing award term – outweigh the benefits of such an approach. As is apparent from the submissions, attempting to adopt changes across the award system is likely to be contested, resulting in significant delay to the completion of the Review.

[21] Consistent with the submissions advanced by ABI and Ai Group the ‘light touch’ process will be confined to making changes to the structure of exposure drafts in Groups 1 to 3 awards (in accordance with the plain language structure completed for awards in Group 4) (see (i) at [6] above); plain language standard clauses and relevant key decisions dealing with common issues. As to the proposed restructuring of the exposure drafts for the Group 1 to 3 awards a comparison document showing how awards have been restructured is set out at Attachment A.

[22] As noted in the February 2019 Statement Schedule 1 to the Fair Work Amendment (Repeal of 4 Yearly Reviews and Other Measures) Act 2018 (Cth) repealed the provision for 4 yearly reviews of modern awards in the Fair Work Act 2009 (Cth) (the Act), with effect from 1 January 2018. Consequently, there will not be any further 4 yearly reviews. However, the residual framework for exercising modern awards powers includes s.157 which allows the Commission to make, vary or revoke a modern award on its own motion. This power will allow the Commission to redraft the terms of modern awards which are unduly complex or difficult to understand, after the completion of the Review.

[23] A Statement regarding the finalisation of the Review will be published shortly. The next stage in the Review will involve the publication of final versions of exposure drafts (expressed as draft variation determinations) for all modern awards. This exercise will be done in stages. Any interested party will have an opportunity to comment on the draft determinations and in doing so may propose the variation of any term to make it simpler and easier to understand. In reviewing the final exposure drafts parties may propose the adoption of award terms used in those awards which have been redrafted in plain language (i.e. the awards described in Chapter 2 of this decision).

[24] Further, any interested person is invited to identify any term in any modern award that is ambiguous, uncertain or confusing and it will be considered for plain language re-drafting in the current Review. Any such request is to be forwarded to [email protected].

3. The scope of the plain language re-drafting of selected awards

[25] On 22 September 2015, the Commission issued a Statement 13 establishing a pilot to produce a plain language draft of the Pharmacy Industry Award 2010 (Pharmacy Award). The purpose of the pilot was to create a plain language exposure draft (PLED) which was simpler and easier for employees and employers to understand than the current Award.

[26] The Commission initially proposed preparing plain language drafts of award-specific clauses in four other modern awards:

•  Clerks – Private Sector Award 2010 (Clerks Award);

•  General Retail Industry Award 2010 (Retail Award);

•  Hospitality Industry (General) Award 2010 (Hospitality Award); and

•  Restaurant Industry Award 2010 (Restaurant Award).

[27] The selection of the first tranche of modern awards to be redrafted in plain language was based on an assessment of the level of award reliance among employers and employees in the industries covered by these awards. Particular weight was given to award reliance among small businesses (those with fewer than 20 employees) on the basis that these entities are less likely to have a dedicated internal human resources management expertise to assist with the interpretation of awards.

[28] In a Statement of 27 March 2017 14 (the March statement) the Commission proposed that a further 10 modern awards would be drafted in plain language. The awards proposed for inclusion in the second tranche of modern awards for plain language re-drafting were:

•  Aged Care Award 2010 (Aged Care Award);

•  Building and Construction General On-site Award 2010 (Building On-site Award);

•  Children’s Services Award 2010 (Children’s Services Award);

•  Cleaning Services Award 2010 (Cleaning Award);

•  Fast Food Industry Award 2010 (Fast Food Award);

•  Hair and Beauty Industry Award 2010 (Hair and Beauty Award);

•  Manufacturing and Associated Industries and Occupations Award 2010 (Manufacturing Award);

•  Security Services Industry Award 2010 (Security Award);

•  Social, Community, Home Care and Disability Services Industry Award 2010 (SCHADS Award); and

•  Vehicle Manufacturing, Repair, Services and Retail Award 2010 (Vehicle Award).

[29] In selecting these modern awards we took into consideration a number of factors including:

•  industries or subsectors identified by the Fair Work Ombudsman as having high levels of non-compliance;

•  award reliance survey data regarding modern awards used by small businesses; and

•  the resources available to the Commission.

[30] In the February 2019 Statement we expressed the provisional view that the Vehicle Award; the Manufacturing Award and the Building On-Site Award would not be re-drafted in plain language at this time.

[31] No party contested our provisional view. We confirm that the Vehicle; Manufacturing and Building On-Site Awards will not be re-drafted in plain language at this time. As mentioned in the February 2019 Statement, in 2020 consideration will be given to the further re-drafting of awards in plain language using the residual framework in the Act. The Vehicle, Manufacturing and Building On-Site Awards will be considered for inclusion in that process in 2020. Interested parties will be provided with a further opportunity to comment on the inclusion of these awards at that time.

[32] The plain language re-drafting of the following awards is complete:

•  Pharmacy Award; 15

•  Clerks Award; 16

•  Restaurant Award; 17

•  Hospitality Award; 18

•  Retail Award; 19

•  Security Award 20

[33] There are two outstanding issues in relation to the plain language re-drafting of the Cleaning Award.

[34] The first issue concerns the temporary close-down provisions in the annual leave clause (i.e. clause 24.4).

[35] Submissions were received from United Voice 21 (UV) and Ai Group.22 UV submits that clause 29.6(a) of the current award states that notice is to be in writing and this requirement is absent from proposed clauses 24.4(b)(i) and (ii) of the revised PLED. UV also submits that proposed clause 24.4 of the revised PLED should be clarified by stipulating that the close down period is for a maximum of 4 weeks. Ai Group does not oppose the variations proposed by UV.

[36] We will amend clause 24.4 in the revised PLED to incorporate UV’s proposed amendments, as follows:

“24.4 Temporary close-down

(a) An employer may require an employee to take annual leave if the employee works for the employer in connection with a site operated by a client of the employer and:

(i) the client plans to temporarily close-down, or significantly reduce, all, or part of, its operations at that site (known as a ‘temporary close-down’); and

(ii) the temporary close-down is for the purposes of the client’s employees taking annual leave.

(b) Employer to notify employee

(i) If an employer requires an employee to take annual leave under clause (a), then the employer must give that employee one months’ notice in writing that they are to take annual leave for the temporary close-down.

(ii) However, if the employer engages an employee during the notice period, then the employer must give that employee notice of the temporary close-down in writing when the employer engages the employee.

(c) Length limit: four weeks plus public holidays

The close-down period under clause (a) may be for up to a maximum of four weeks plus public holidays.

(d) Public holidays during a temporary close-down

If the close-down period includes any public holiday, then:

(i) that public holiday does not count as a day of annual leave, or of leave without pay; and

(ii) the employer is to pay the employee for that day in the way this Award requires.

(e) Paid leave and leave without pay

If an employee is to take annual leave due to a temporary close-down under clause (a), then:

(i) if the employee has enough annual leave to cover the full close-down period, then they must take paid annual leave for the full close-down period;

(ii) if the employee has some annual leave but not enough to cover the full close-down period, then they must first take all of the paid annual leave they have and then take leave without pay for the rest of the close-down period — also see clause (f); or

(iii) if the employee has no annual leave, then they must take leave without pay for the full close-down period — also see clause (f).

(f) Alternative to leave without pay

If it is practicable for the employer to arrange work at another site for an employee who would otherwise be on leave without pay under clause (f)(ii) or (iii), then the employer must arrange that work.”

[37] The second outstanding issue concerns the payment for annual leave and the payment of accrued annual leave on termination. The issues are set out at [32] to [54] of the November 2018 decision 23 and at [55] of that decision we expressed the provisional view that clause 24.3 of the Cleaning PLED should be amended by deleting clause 24.3(a)(iii) as proposed by Ai Group, on the basis that the proposed variation is consistent with the common position espoused by the parties.24

[38] Further, in order to resolve the issue in dispute relating to payment of accrued annual leave on termination, we expressed the provisional view at [56] that clause 24.3(c) of the Cleaning PLED should be deleted on the basis that if retained it may result in an employee receiving less on termination than would have been payable to them had they taken leave. Such an outcome would be contrary to s.90(2) of the Act and contravene s.55 and, in such circumstances, the relevant award term—clause 24.3(c)—would have no effect (s.56). 25

[39] Submissions were received from Ai Group 26 and UV.27 Ai Group supports the Commission’s provisional views. UV submits that the characterisation of UV’s position on payment of annual leave on termination at [54] of the November 2018 decision is incorrect and that there is no common position between UV and Ai Group in respect of payment of annual leave on termination. Further, UV does not support the provisional view that clause 24.3(a)(iii) of the Cleaning PLED should be deleted and submits that clause 24.3(a) defines the employee’s base rate of pay for the purposes of s.90 of the Act. It submits that by deleting clause 24.3(a)(iii), an employee’s entitlement to ‘penalty rates paid for shiftwork or rostered ordinary hour of work on Saturday or Sunday’ will no longer form part of their base rate of pay.

[40] UV also objects to the provisional view that clause 24.3(c) of the PLED be deleted and submits that clause 24.3(c) is the only clause in the PLED that relates to payment of annual leave on termination. It submits that clause 24.3(c) simply identifies the method for calculating annual leave on termination and that, regardless of which interpretation the Commission settles on, there should remain a clause in the award that stipulates to employers and employees how annual leave is to be paid on termination.

[41] Ai Group filed a reply submission on 30 November 2018 28 in which it submits that UV’s submission does not raise any new or additional issues that warrant a departure from the provisional views expressed. Ai Group requested that, if the Bench decides to alter to the provision in a way that deviates from the previously expressed provisional view, they should be given another opportunity to comment on such a proposal, given the complexity of the matter.

[42] Given the complexity of the issues raised we propose to list this matter for oral hearing at 9:30am on 26 and 27 September 2019 in Sydney.

[43] As to the remaining awards, the plain language re-drafting of the Aged Care Award, Children’s Services Award, and SCHADS Award will commence after the substantive issues have been heard and determined. A timetable for consultation on the re-drafting process will be issued in the second half of 2019.

[44] A decision issued on 20 February 2019 determined the substantive issues in the Fast Food Award. 29 Plain language re-drafting of this award will commence in the coming weeks. The substantive issues in the Hair and Beauty Awardremain outstanding and plain language re-drafting will commence when these issues have been determined.

[45] In its submission the CFMMEU (C&G Division) sought clarification as to whether the Mobile Crane Hiring Award 2010 (Mobile Crane Award) and the Joinery and Building Trades Award 2010 (the Joinery Award) were included in the plain language re-drafting project. We confirm that these awards will not be re-drafted in plain language, at this time.

[46] At the completion of this element of the plain language project the following awards will have been redrafted in plain language:

•  Aged Care Award;

•  Children’s Services Award;

•  Cleaning Award;

•  Clerks Award;

•  Hair and Beauty Award;

•  Hospitality Award;

•  Pharmacy Award;

•  Restaurant Award;

•  Retail Award;

•  Security Award; and

•  SCHADS Award.

4. Plain language re-drafting of standard clauses

[47] Five ‘standard clauses’ are common to most awards, namely:

•  Award flexibility

•  Consultation

•  Dispute resolution

•  Termination of employment; and

•  Redundancy.

[48] These standard clauses have now all been redrafted in plain language 30 and determinations varying most modern awards were issued on 26 October 2018 and 13 December 2018.

[49] A decision issued on 11 December 2018 31 (the December 2018 Decision) addressed a number of award specific issues with respect to the model standard clauses. In that decision we expressed a range of provisional views about these matters. Draft Determinations were issued on 13 December 2018 and interested parties had until 25 January 2019 to file submissions. Submissions in reply were due by 7 February 2019.

[50] We now turn to the issues in each of the awards which remain outstanding.

[51] In relation to standard clause E – Termination of employment, the following awards include award specific notice periods for termination of employment by an employee that would be removed if the standard model term was inserted:

•  Air Pilots Award 2010 (Air Pilots Award) at clause 12.7

•  Animal Care and Veterinary Services Award 2010 (Animal Care Award) at clause 11.3

•  Architects Award 2010 (Architects Award) at clause 12.2

•  Black Coal Mining Industry Award 2010 (Black Coal Award) at clause 13.2

•  Building and Construction General On-Site Award 2010 (Building On-Site Award) at clause 16

•  Educational Services (Teachers) Award 2010 (Teachers Award) at clause 11.4

•  Marine Towage Award 2010 (Marine Towage Award) at clause 11.6

•  Professional Employees Award 2010 (Professional Employees Award) at clause 12.2.

Air Pilots Award

[52] In the December 2018 Decision 32 we expressed the provisional view that:

•  the award specific clauses 12.5 and 12.6 should be retained in the award on the basis that each provides a long standing entitlement and no party sought to contest the retention of the clauses on merit or jurisdictional grounds;

•  the notice entitlement under clause 12.2 should be maintained as a minimum entitlement but should be redrafted so as not to exclude the NES in circumstances where an employee is entitled to 5 weeks’ notice under the NES;

•  clause 12.7 be redrafted to confine its scope to the extent of our jurisdiction; and

•  retain clauses 12.3 and 12.4, convert clause 12.1 into an appropriate note, re-order and re-number the clauses and make minor amendments in the interests of consistent drafting.

[53] No submissions were filed in response to our provisional view and nor were any submissions received in response to the draft determination. We confirm our provisional views and will issue a variation determination in the same terms as the draft determination published on 13 December 2018.

Animal Care Award; Architects Award and the Professional Employees Award

[54] The Animal Care, Architects and Professional Employees Awards contain notice provisions which may be inconsistent with the NES. In requiring only one month’s notice of termination by the employer these award terms exclude part of the NES, in that their operation results in an outcome whereby employees do not receive the full benefit provided by the NES. Under the NES an employee over 45 years of age with more than 5 years’ continuous service is entitled to 5 weeks’ notice; as opposed to the one month’s notice provided by the award terms.

[55] In the December 2018 Decision we accepted that the provision of one month’s notice in each of these awards is a long standing entitlement that arises from the professional nature of the employment in each of the industries and on that basis should be maintained as a minimum entitlement. However, as presently framed the provisions exclude the NES in circumstances where employees are entitled to 5 weeks’ notice under the NES. On that basis we expressed the provisional view 33 that the termination of employment provisions should be replaced with an amended version of the plain language standard clause.

[56] No submissions were filed in response to our provisional views and nor were any submissions received in response to the draft determinations. We confirm our provisional views and will issue variation determinations in the same terms as the draft determinations published on 13 December 2018.

Black Coal Award

[57] Clause 13.2 of the Black Coal Award departs from the standard clause E.1 in a number of respects, including:

(i) the scope of the clause;

(ii) the period of notice required;

(iii) there is no exclusion of employees under 18 years of age from the capacity of the employer to make a deduction from wages;

(iv) there is no prohibition of deductions in circumstances where an employer has agreed to accept less than the required period of notice; and

(v) there is no qualification that any deduction made pursuant to the clause must not be unreasonable in the circumstances.

[58] In the December 2018 Decision we expressed the following provisional views in respect to the matters at (i) to (v):

•  as to (i), the employee notice clause be redrafted so it is confined to the extent of our jurisdiction; 34

•  as to (ii), we do not propose to change the award in the absence of an application to do so; 35

•  as to (iii), it may be that the exclusion of employees under 18 years of age has no utility in this award because of the age profile of the employees to whom the award applies. If that assumption is incorrect then this issue may be revisited; 36 and

•  as to (iv), the protections against unreasonable reductions in paragraphs E.1(e) and (f) of the standard clause are to be inserted in clause 13.2 of the Black Coal Award. 37

[59] We also expressed the provisional view 38 that clause 13.4, Notice of termination – redundancy, be redrafted to ensure that it does not exclude provisions of the NES.

[60] No submissions were filed in response to our provisional views and nor were any submissions received in response to the draft determinations. We confirm our provisional views and will issue variation determinations in the same terms as the draft determinations published on 13 December 2018.

Building On-site Award

[61] The standard clause dealing with termination of employment includes a statement that:

‘This clause applies to all employees except those identified in ss 123(1) and 123(3) of the Act.’

[62] The proposed wording differs from clause 16.1 of the Building On-Site Award which states:

‘Notice of termination is provided for in the NES. The notice provisions of the NES do not apply to daily hire employees working in the building and construction industry.’

[63] MBA submits that the existing clause is adequate and should be retained:

‘We submit that proposed clause 16.1(a) is more complex and would be difficult to understand for Award end users.

Retention avoids requiring users to have regard to the Act and the Award, something that the current Award provisions does not require.’ 39

[64] The CFMMEU (C&G Division) and AMWU opposed the MBA’s submission. The CFMMEU (C&G Division) submits that, contrary to the MBA’s assertion, the existing award clause is not adequate because:

•  The current clause 16.1 only deals with notice of termination by an employer and it only refers to employees covered by s.123(3) of the FW Act, and does not reflect the additional employees covered by s.123(1).

•  The proposed clause 16.1(a) is specific to notice of termination by an employee and reflects the full range of employees that are not covered by the notice requirements in the proposed clause 16.1(b), which reflects the intended operation of the current clause 16.2 of the Building and Construction General On-Site Award 2010.

[65] As to the MBA’s submission regarding the complexity of the proposed clause, the CFMMEU (C&G Division) submits:

‘The proposed clause 16.1(a) is not more complex or difficult to understand (than the existing clause 16.1) as it does nothing more than point the award user to the specific provisions in the FW Act that are relevant. Requiring award users to have regard to the award and the FW Act is nothing new, and is already required by numerous existing provisions in the award (e.g. the definitions of employee, employer and NES in clause 3 – Definitions; clause 5 – Access to the award and the National Employment Standards; clause 6 – The National Employment Standards and this award; clause 9 – Dispute Resolution; and clause 38 – Annual leave). It should also be noted that s.123 falls within Part 2-2 – The National Employment Standards of the FW Act.’ 40

[66] The AMWU made similar submissions.

[67] We reject the MBA’s suggested change, largely for the reasons identified by the CFMMEU (C&G Division). In particular, the MBA’s proposed clause is apt to mislead employers as it only refers to one of the categories of employees who are excluded from the relevant provisions of the NES.

[68] Clause 16.1 deals with notice of termination by an employee. The power to include a term in a modern award specifying the period of notice an employee must give in order to terminate his or her employment is in s.118, which forms part of Subdivision A of Division 11 of Part 2-2 of the Act. Section 123 limits the scope of Division 11 and, relevantly, ss 123(1) and (2) provide:

(1) This Division does not apply to any of the following employees:

(a) an employee employed for a specified period of time, for a specified task, or for the duration of a specified season;

(b) an employee whose employment is terminated because of serious misconduct;

(c) a casual employee;

(d) an employee (other than an apprentice) to whom a training arrangement applies and whose employment is for a specified period of time or is, for any reason, limited to the duration of the training arrangement;

(e)  an employee prescribed by the regulations as an employee to whom this Division does not apply.

…

(3) Subdivision A does not apply to:

(b)  a daily hire employee working in the building and construction industry (including working in connection with the erection, repair, renovation, maintenance, ornamentation or demolition of buildings or structures); or

(c)  a daily hire employee working in the meat industry in connection with the slaughter of livestock; or

(d)  a weekly hire employee working in connection with the meat industry and whose termination of employment is determined solely by seasonal factors; or

(e)  an employee prescribed by the regulations as an employee to whom that Subdivision does not apply.

[69] Clause 16.1(a) provides that clause 16 does not apply to those employees identified in ss 123(1) and (3), because the Commission does not have power to specify the notice those employees must give to terminate their employment. The amendment proposed by the MBA only excludes a sub-set of the employees excluded by ss 123(1) and (3).

[70] We accept that daily hire employees are likely to be the most commonly exempted employees and on that basis will amend clause 16.1(a) to include a note as follows:

‘This clause applies to all employees except those identified in ss 123(1) and 123(3) of the Act.

Note: by s 123(3)(a) this clause does not apply to daily hire employees working in the building and construction industry.’

[71] We will now issue a variation determination in the same terms as the draft determination published on 13 December 2018, with the addition of the note to clause 16.1(a) as set out above.

Teachers Award

[72] Clause 11.5 of the Teachers Award departs from the plain language standard termination of employment clause in a number of respects, including the following:

(i) there is no exclusion of employees under 18 years of age from the capacity of the employer to make a deduction from wages;

(ii) there is no prohibition of deductions in circumstances where an employer has agreed to accept less than the required period of notice;

(iii) the amount that may be deducted from monies due to the employee is not ‘capped’ at one week’s wages; and

(iv) there is no qualification that any deduction made pursuant to the clause must not be unreasonable in the circumstances.

[73] In the December 2018 Decision we expressed the following provisional views in respect of the matters at (i) to (iv):

•  as to (i), it may be that the exclusion of employees under 18 years of age has no utility in this award because of the age profile of the employees to whom the award applies. If that assumption is incorrect then this issue may be revisited; 41

•  as to (ii) to (iv), clauses 11.4 and 11.5 of the Teachers Award be redrafted to ensure that a deduction of an amount from monies owed to an employee was not ‘unreasonable in the circumstances’, within the meaning of s.326(1)(b). 42

[74] We also expressed the provisional view that clauses 11.2, 11.3 and 11.9 be redrafted with application clauses, rather than their application being indicated by the clause heading 43 and that clause 11.6 be replaced by standard clauses E.2 and E.3 and clause 11.1 be converted into a note.

[75] The Independent Schools of Victoria, Independent Schools Tasmania and the Associations of Independent Schools of NSW (the Independent Schools) have filed submissions opposing the incorporation of a ‘cap’ of one weeks wages from the amount that may be deducted on termination from monies due to an employee. The Independent Schools submit that it is reasonable in the circumstances for schools to be authorised to deduct, from monies due to a teacher, the full amount of notice (if any) required by the award but not provided by the teacher:

‘… in circumstances where the amount of notice required is 7 term weeks, any ‘cap’ ought to be higher than one week.’ 44

[76] A witness statement by Ms Kerri Knopp Director Strategic Relations of Independent Schools Victoria, has been filed in support of the submission put by the Independent Schools.

[77] The Independent Education Union of Australia (the IEU) agrees with the provisional views set out in the December 2018 Decision and opposes the amendment proposed by the Independent Schools.

[78] Given the complexity of the issue, and in order to provide the IEU an opportunity to cross examine Ms Knopp, we propose to list this matter for an oral hearing at 9:30am on 26 and 27 September 2019 in Sydney.

Marine Towage Award

[79] Clause 11.6 of the Marine Towage Award deals with notice of termination by permanent employees. Clause 11.6 departs from the standard clause in a number of respects, including the following:

(i) the scope of the clause;

(ii) the period of notice required;

(iii) there is no exclusion of employees under 18 years of age from the capacity of the employer to make a deduction from wages;

(iv) there is no prohibition of deductions in circumstances where an employer has agreed to accept less than the required period of notice;

(v) the amount that may be deducted from monies due to the employee is not ‘capped’ at one week’s pay; and

(vi) there is no qualification that any deduction made pursuant to the clause must not be unreasonable in the circumstances.

[80] In the December 2018 Decision we expressed the following provisional views in respect of matters (i) to (vi):

•  as to (i), the clause be redrafted so it is confined to the extent of our jurisdiction; 45

•  as to (ii), we do not propose to change the award in the absence of an application to do so; 46

•  as to (iii), it may be that the exclusion of employees under 18 years of age has no utility in this award because of the age profile of the employees to whom the award applies. If that assumption is incorrect then this issue may be revisited; 47

•  as to (iv) to (vi), the protections against unreasonable reductions in paragraphs E.1(e) and (f) of the standard clause are to be inserted into clause 11.6. 48

[81] We also proposed to replace clause 11.3 – Job search entitlement with standard clauses E.2 and E.3 and to retain clauses 11.2, 11.4, 11.5 and 11.7, and to convert clause 11.1 into a note. 49

[82] No submissions were filed in response to our provisional views and nor were any submissions received in response to the draft determinations. We confirm our provisional views and will issue variation determinations in the same terms as the draft determinations published on 13 December 2018.

[83] We now turn to deal with a number of award specific issues relating to the Redundancy Standard term.

[84] A decision issued on 16 April 2019 50 (the April 2019 Decision) finalised the structure of the plain language redundancy standard term and inserted that standard term into 100 modern awards. Of the remaining 22 modern awards, 21 have redundancy provisions and in the December 2018 Decision we divided these 21 modern awards into three categories”

Category 1: Awards with an industry-specific redundancy scheme

Category 2: Awards with an industry-specific redundancy element that supplements the NES (such as providing an entitlement to redundancy pay for employees of small businesses).

Category 3: Awards with other variations from the standard redundancy provisions.

[85] The April 2019 Decision dealt with the six awards in the first category. This decision deals with the awards in categories 2 and 3.

[86] The second category relates to awards with industry-specific redundancy elements that supplement the NES, such as by providing an entitlement to redundancy pay for employees of small businesses. The awards in this category are:

•  Air Pilots Award;

•  Aircraft Cabin Crew Award 2010 (Aircraft Cabin Crew Award);

•  Cleaning Award;

•  Teachers Award;

•  Electrical, Electronic and Communications Contracting Award 2010 (Electrical Contracting Award);

•  Joinery and Building Trades Award 2010 (Joinery Award);

•  Mannequins and Models Award 2010 (Mannequins and Models Award);

•  Manufacturing Award;

•  Security Award;

•  Sugar Industry Award 2010 (Sugar Industry Award);

•  Textile, Clothing, Footwear and Associated Industries Award 2010 (TCF Award); and

•  Timber Industry Award 2010 (Timber Award).

[87] In the December 2018 Decision we expressed the provisional 51 view that awards with an industry-specific element that supplements the NES should be amended to include the plain language standard redundancy clause, but with adaptations as necessary to retain the substance of the industry-specific elements. The note at the beginning of the redundancy clause in these awards may also be amended so as to refer to the industry-specific elements.

[88] We also noted that the background to the industry specific redundancy clauses in the Mannequins and Models Award and the Sugar Industry Award required further consideration and will be dealt with in due course.

[89] Interested parties opposing our provisional view were to lodge a submission explaining their objection by 4pm on 25 January 2019. Submissions in reply were to be filed by 4pm on Friday 8 February 2019.

[90] No submissions were filed opposing our provisional view (nor were any comments received in response to the draft determinations) in relation to the following awards:

•  Air Pilots Award;

•  Aircraft Cabin Crew Award;

•  Cleaning Award;

•  Electrical Contracting Award;

•  Security Award; and

•  TCF Award.

[91] We confirm our provisional view in respect of these awards and will issue variation determinations in the same terms as the draft determinations published on 13 December 2018.

[92] There remain some contested issues in respect of the Joinery Award, the Manufacturing Award and the Timber Award. Given the degree of complexity associated with the contested issues in these awards we propose to list these matters for an oral hearing 9:30am on 26 and 27 September 2019 in Sydney. We now turn to the category 3 matters.

[93] Variations to the standard plain language redundancy clause arise in relation to three modern awards:

•  Coal Export Terminals Award 2010 (Coal Terminals Award);

•  Maritime Offshore Oil and Gas Award 2010 (Offshore Oil and Gas Award); and

•  Seagoing Industry Award 2010 (Seagoing Award).

Coal Terminals Award

[94] In the December 2018 Decision we expressed the provisional view (at [53]) that only the note and subclauses F2 and F3 of the plain language standard redundancy clause be inserted into this award.

[95] No submissions were filed in response to our provisional view; nor were any submissions filed in response to the draft determination. We confirm our provisional view and will issue a variation determination in the same terms on the draft determination published on 13 December 2018.

Offshore Oil and Gas Award / Seagoing Award

[96] The redundancy provisions in these awards do not currently contain a job search entitlement term. Given the location of the work covered by these awards we expressed the provisional view (at [52] of the December 2018 Decision) that this aspect of the plain language standard redundancy term should not be inserted into these awards.

[97] No submissions were filed in response to our provisional view; nor were any submissions filed in response to the draft variation determinations. We confirm our provisional view and will issue variation determinations in the same terms as the draft determinations published on 13 December 2018.

[98] The last of the 22 modern awards not yet varied to insert the plain language redundancy standard term is the Higher Education Industry – General Staff Award 2010 (the Higher Education General Staff Award).

[99] The Higher Education General Staff Award does not presently contain any redundancy provisions. In the December 2018 Decision (at [55]) we expressed the provisional view that the award be varied to include the plain language redundancy standard term.

[100] No submissions were filed in response to our provisional view; nor were any submissions filed in response to the draft determination. We confirm our provisional view and will issue a variation determination in the same terms as the draft determination published on 13 December 2018.

TCF Award

[101] In relation to other standard clauses, there are three outstanding issues in relation to the TCF Award. These issues are discussed at [132] to [142] of the December 2018 Decision in which we expressed the following provisional views:

•  the additional safeguards in clause 7 – Individual Flexibility Arrangements (i.e. clauses 7.4 and 7.9) be retained;

•  in relation to clause 9A – Consultation about changes to rosters or hours of work – clause 9.2(c) will be incorporated into the standard clause; and

•  clause F5.10 in Schedule F will be amended to reflect the change in numbering of clause 10.

[102] No submissions were filed opposing our provisional views and the only submission received in response to the draft determination (filed by the CFMMEU (MD)) supported the draft determination. We confirm our provisional views and will issue a variation determination in the same terms as the draft determination published on 13 December 2018.

5. Annual, weekly and hourly rates in minimum wages tables

[103] A Statement 52 published on 21 March 2018 discussed an issue raised by Ai Group about whether the words ‘full-time employee’ should be included under the minimum weekly wage in the wages table was referred to the plain language Full Bench. In a decision53 in July 2015 the Group 1 Full Bench decided to include hourly rates of pay in the body of the award (in addition to weekly rates) to ensure that awards are simple and easy to understand.

[104] Ai Group submitted that the preamble to the minimum wages table does not state that the table applies to full-time employees and consequently a literal reading appears to require the payment of the minimum weekly rate to all adult employees, including part-time and casual employees. Ai Group propose to insert the words ‘(full-time employees)’ below the heading of the column containing minimum weekly rates in numerous awards in the technical and drafting proceedings of the award stage of the review. 54

[105] The amendment proposed by Ai Group has already been applied to some exposure drafts in Group 4 of the award stage proceedings.

[106] In the February 2019 Statement we expressed the provisional view that the approach suggested by Ai Group should be adopted across all exposure drafts.

[107] Interested parties were invited to comment on our provisional view. Only three submissions addressed this issue in any detail.

[108] The CFMMEU (C&G Division) did not support our provisional view, for two reasons. First, it submitted that the purpose of the minimum wages tables in modern awards was to set out the minimum weekly classification rates and not the minimum weekly award rates of pay. It is said that the minimum weekly award rates of pay will differ depending on whether any all purpose allowances are payable and the type of employment (e.g. casual, part time, shift worker or daily hire).

[109] Second, it is submitted that in a number of awards the insertion of the words ‘full-time employee’ would ‘potentially create confusion rather than reduce it’ and advanced a ‘preferred alternative approach’ to that proposed by Ai Group, which is to add a subclause below the minimum rates table, as follows:

‘X.2 The rates in clause X.1 prescribe minimum classification rates only. The actual minimum rate of pay will depend on the employees type of employment and whether any loadings, penalty rates or all purpose allowance are payable. See summary of hourly rates of pay in Schedule XX.’

[110] HIA opposed the insertion of ‘full-time employee’ below the heading of the column containing minimum weekly rates of pay in the Building On-site Award and the Joinery Award, for the following reasons:

‘Onsite Award

3.1.3 Minimum weekly rates within the Onsite Award are not confined to full-time employment. The Onsite Award has four types of employment, daily hire, full-time weekly hire, part-time weekly hire, and casual. As such adding ‘full time employee’ against the minimum weekly rate in clause 19.1(a) may in fact cause more confusion and is inconsistent with the language used throughout the award. For example, the Onsite Award refers to daily hire employees, and weekly hire employees in the context of clause 19.3, hourly rate calculation. The proposed language is also at odds with the definition of ‘ordinary time hourly rate’ in clause 3 of the Onsite Award which assists the reader to carry out the calculation of the applicable rate of pay.

3.1.4 Additionally, the current wording of Clause 19.1(b) sufficiently explains the application of the minimum weekly wage by reference to clause 3 which sets out how the minimum weekly wage applies to an employee’s applicable type of employment:

19.1(b) The rates in clause 19.1(a) prescribe minimum classification rates only. The payment of additional allowances is required by other clauses of this award in respect of both weekly and hourly payments. The ordinary time hourly rate for an employee’s classification is set out in clause 3 …

Further,

3.1.6 Clause 18.2 of the Joinery Award which immediately follows the minimum wages table at clause 18.1, provides a meaning of ‘minimum weekly rate’:

18.2 For the purposes of clause 18.1, any entitlement to a minimum wage expressed to be by the week means any entitlement which an employee would receive for performing 38 hours of work.

3.1.7 As such HIA does not see the addition of the proposed words outlined in the provisional view as necessary.’

[111] ABI did not oppose the insertion of the reference to ‘full-time employee’ in the minimum rates table ‘as a general proposition; but submits that in some awards (such as the Clerks Award), this change may result in some confusion due to ‘the interaction of the operative part of the clause with the wage table.’

[112] The first point advanced by the CFMMEU (C&G Division) is misconceived. Exposure drafts clearly delineate minimum (classification) rates of pay and ‘ordinary rates of pay’; the latter incorporates any all-purpose allowances. The second point put in favour of the preferred approach of the CFMMEU (C&G Division) does not advance the argument. It amounts to little more than an assertion that adopting Ai Group’s proposal that it would ‘potentially create confusion rather than reduce it’, without particularising the modern awards in which this may occur. If the variation of the exposure drafts in the manner proposed by Ai Group does create confusion in respect of particular awards that can be the subject of submissions in response to the next release of exposure drafts. Neither of the points advance persuade us to depart from our provisional view.

[113] As to the HIA’s submission, we propose to exempt the Building On-Site and Joinery Awards from the approach proposed by Ai Group, at this time. We note the point raised by ABI and will take it into account in the implementation of this change in the Clerks Award.

[114] We confirm that the approach suggested by Ai Group will be adopted across all exposure drafts, save for the Building On-Site and the Joinery Awards. In relation to those two awards the issue can be the subject of further submissions in response to the publication of the next iteration of exposure drafts.

6. Cross references in coverage clauses

[115] In the February 2019 Statement we expressed the provisional view that:

•  any exposure drafts that do not currently have the industry definition in the coverage clause will be amended in accordance with the July 2017 Group 3 decision; 55 and

clauses dealing with on-hire employees and group training services will be amended to refer to the relevant industry instead of a clause reference.’

[116] Interested parties were invited to comment on our provisional view. Only two submissions addressed this issue in any detail – Ai Group and the HIA. Ai Group submitted that:

‘the clauses to be inserted into particular awards will need appropriate modification to take into account that:

•  Some awards have occupational coverage, rather than industry coverage;

•  Some awards have both industry and occupational coverage; and

•  Many awards cover group apprentices as well as group trainees.

During Stage 4 of the 2008/09 Award Modernisation Process, Ai Group was heavily involved in the development of the coverage clauses for labour hire employees, group apprentices and group trainees. At the time it was evident to all parties and to the AIRC, that the same wording would not be appropriate for all awards because of the issues raised above.

It is important that interested parties be afforded an opportunity to review and comment on any draft determinations that are prepared in order to implement the proposals at paragraphs [33] and [34] of the February Statement, so that any award specific considerations can be identified.’ 56

[117] HIA’s submission was directed at the Building On-site and Joinery Awards:

‘Onsite Award

6.2.4 Clauses 4.6 and 4.7 of the Onsite Award as they relate to on-hire and group training services coverage, reference Clause 4.1 as the defined industry for coverage purposes.

6.2.5 Clause 4.1 of the award confirms the Onsite Award provides coverage for employers and employees in the on-site building, engineering and civil construction industry, whilst clause 4.10 defines the industry for the purposes of clause 4.1.

6.2.6 Accordingly HIA acknowledges that the cross reference issue in Clauses 4.6 and 4.7 of the Onsite Award can be remedied in line with the Commissions provisional view as follows:

4.6 This award covers any employer which supplies labour on an on-hire basis in the on-site building, engineering and civil construction industry set out in clause 4.1 in respect of on-hire employees in classifications covered by this award, and those on-hire employees, while engaged in the performance of work for a business in that industry. This subclause operates subject to the exclusions from coverage in this award.

4.7 This award covers employers which provide group training services for apprentices and/or trainees engaged in the on-site building, engineering and civil construction industry and/or parts of industry set out at clause 4.1 and those apprentices and/or trainees engaged by a group training service hosted by a company to perform work at a location where the activities described herein are being performed. This subclause operates subject to the exclusions from coverage in this award.

Joinery Award

6.2.7 Clauses 4.4, 4.5 and 4.7 of the Joinery Award as they relate to on-hire and group training services coverage, reference Clause 4.8(a) and 4.8(b) as the defined industry and occupations for coverage purposes.

6.2.8 Such reference to Clause 4.8 is correct, as the clause defines the joinery and building trades industries and occupations.’ 57

[118] We confirm our provisional view, Exposure drafts that do not currently have the industry definition in the coverage clause will be amended in accordance with the July 2017 Group 3 decision and clauses dealing with on-hire and employees and group training services will be amended to refer to the relevant industry instead of a clause reference. The variations to be made to the exposure drafts will take into account the matters raised by Ai Group and the HIA and interested parties will have an opportunity to comment on the next iteration of exposure drafts.

7. Reasonable overtime

[119] On 29 October 2018 we issued a Decision [2018] FWCFB 6680 determining a reasonable overtime model term and foreshadowed that draft determinations would be published for the 12 awards at Attachment B to this decision. At [25] of that decision we stated:

‘[25] Draft variation determinations will now be published. Our provisional view will only be displaced in respect of any particular award if it is demonstrated that there are matters or circumstances particular to that award which compel the conclusion that the achievement of the modern award objective for that award does not necessitate the variation of the award to insert the model term. One such matter may be the interaction between the model term and other provisions in that award.’

[120] On 16 November 2018, draft determinations were issued for the 12 awards affected and we foreshadowed that any tailoring of award-specific clauses would be addressed after the publication of the draft determinations. 58 Parties were asked to file submissions and submissions in reply on any proposed variations to the draft determinations. Submissions were received from the following parties:

•  HIA; 59

•  CFMMEU (C&G); 60

•  CEPU; 61

•  AMWU; 62

•  AHA; 63

•  UV. 64

[121] HIA made submissions in relation to the Building On-site Award, the Joinery Awardand the Timber Award. It submits that related cross references should be provided in clause (c) where factors are listed to take into account what is reasonable or unreasonable overtime. They submit this approach would enhance the readability of the award and assist in ensuring compliance. HIA proposes the following award specific variations to the Joinery and Timber Awards:

Joinery Award draft determination- Paragraph 1 cl30.1(c)

•  ‘(ix) whether the additional hours are in accordance with averaging terms of Clause 28 in this award inserted pursuant to s.63 of the Act, that applies to the employee’;

Timber Award draft determination – Paragraph 1 cl30.11(c)

•  ‘(ix) whether the additional hours are in accordance with averaging terms of Clause 27 in this award inserted pursuant to s.63 of the Act, that applies to the employee’;

[122] In relation to the Building On-site Award, HIA submits that the averaging of hours reference in the reasonable overtime model term was unnecessary and confusing as the award did not include an averaging of hours terms. We agree and will delete clause 36.1(c)(ix) in the Building On-site Award draft determination.

[123] In relation to the Building On-site Award, the Joinery Award and the Manufacturing Award, CFMMEU (C&G Division) submits that the words ‘other than a casual’ be deleted from paragraph (a) in each clause of the draft determinations and that clause (a) should read:

‘Subject to s.62 of the Act and this clause, an employer may require an employee to work reasonable overtime hours at overtime rates.’

[124] CFMMEU (C&G Division) referred to the Full Bench’s comments regarding whether s.62 applies to casual employees in [2018] FWCFB 6680 at [23] and referred to a transcript from 23 October 2018 65 where the President proposed that where an award currently contains the words ‘other than a casual’ that it would remain but would be removed from the General Retail Industry Award 2010, the Hair and Beauty Award and the Fast Food Awardas those words had been removed from these awards by another decision.

[125] CFMMEU (C&G Division) also submits that the current reasonable overtime clauses in the Building On-site, the Joinery and the Manufacturing Awards do not include the words ‘other than a casual’ and the current provisions apply to all employees, including casuals. Further, the Building On-site and Joinery Awards both contain specific penalty rates for casuals required to work overtime.

[126] CEPU advanced a similar submission in relation to the Building On-site Award, Manufacturing Award and the Electrical Award and the AMWU made essentially the same submission in relation to the Manufacturing Award, the Building On-site Award, the Timber Award and the Graphic Arts, Printing and Publishing Award 2010 (Graphic Arts Award). The AMWU submits that the current overtime provisions in all four awards apply to casual employees and accordingly the words ‘other than a casual’ should be deleted.

[127] Australian Hotels Association (AHA) made submissions in relation to the Hospitality Award. AHA stated that the Hospitality Award provides casual employees with an entitlement to overtime rates for work in excess of 12 hours per day or shift; or 38 hours per week, or an average of 38 hours per week over a roster cycle in clauses 13.2, 13.4, 33.1 and 33.2(c). On this basis the AHA submits that the words ‘other than a casual’ should be deleted from the draft determination.

[128] Similarly, UV submitted that the Cleaning Services Award provides that casual employees are entitled to overtime payments (under clauses 12.5(a) and 24.2(a)), and the Hospitality Award also provides casuals with an  entitlement to overtime payments (see clause 13.4).  UV submits that the two awards do not exclude casual employees from the reasonable overtime provisions in clauses 28.1 and 33.1 of the Cleaning and Hospitality Awards, respectively.

[129] Our Statement of 16 November 2018 66 provided that submissions in reply were to be filed by Wednesday 5 December 2018. We note that no submissions were filed opposing the views expressed in the submissions set out above. We accept each of the variations proposed, that is:

•  the words ‘other than a casual’ will be deleted from the variation determinations in respect of the Building On Site; Cleaning Services; Electrical Contracting; Graphic Arts; Hospitality; Joinery; Manufacturing; Timber Awards;

•  the cross referencing in clause 30.1(c)of the Joinery Award and clause 30.11(c) of the timber Award, as proposed by HIA; and

•  the deletion of clause 36.1(c)(ix) of the Building On site Award draft determination.

[130] Variation determinations in respect of each of these awards will be issued shortly.

[131] Further, no submissions were received concerning the draft determinations for the FastFoodAward, the Retail Award, the Hair and Beauty Awardand the Pharmacy Award. However, in [2018] FWCFB 6680 at [21] we referred to a submission by the National Retail Association’s which noted that the Fast Food, Retail and Hair and Beauty Awards were varied by the Part-time and Casuals Full Bench to remove the words ‘other than a casual’ from the reasonable overtime term. We note that these variations came into effect on 1 January 2018, accordingly it is our provisional view that the reference to ‘other than a casual’ should be deleted in the draft variation determinations in respect of these three awards.

[132] We also note that the draft variation determination in the Pharmacy Award includes the words ‘other than a casual’ in circumstances where they do not appear in the current award and, further, the overtime provisions in the current award appear to apply to ‘all employee’ (see clause 26.1(a)). In these circumstances it is our provisional view that these words be deleted.

[133] Revised draft variation determinations in respect of these four awards will be published shortly and interested parties will have 14 days to comment.

8. National Training Wage

[134] In a Statement of July 2016 67 it was proposed that the National Training Wage Schedule (NTW Schedule) be standardised and removed from all awards except the Miscellaneous Award 2010 (the Miscellaneous Award) and that the NTW be incorporated into other awards by reference to the Miscellaneous Award.

[135] In a decision in June 2017 68 a reference term was inserted into the 94 modern awards specified in Attachment A of that decision. A decision69 of August 2017 finalised the plain language NTW Schedule and the Miscellaneous Award NTW Schedule was varied70 in September 2018.

[136] There are eight awards in which a party had sought to retain an award specific NTW schedule are:

•  Airline Operations—Ground Staff Award 2010 (the Airline Ground Staff Award);

•  Airport Employees Award 2010 (the Airport Employees Award);

•  the Building On site Award;

•  Food, Beverage and Tobacco Manufacturing Award 2010 (the Food Manufacturing Award);

•  the Joinery Award;

•  the Manufacturing Award;

•  the Mobile Crane Award;and

•  the Sugar Industry Award.

[137] The AMWU and Ai Group have come to an agreement on the NTW schedules to be included in the following awards:

•  Airport Employees Award;

•  Food Manufacturing Award;

•  Manufacturing Award; and

•  Sugar Industry Award.

[138] Draft variation determinations reflecting the AMWU/Ai Group agreement will be published with this decision. Interested parties will have 14 days to comment. Absent a request for an oral hearing any outstanding issues will be decided on the papers.

[139] The CFMMEU (C&G Division) sought to retain the NTW schedule in the Building On-site Award, the Joinery Award and the Mobile Crane Award. As noted at a mention held on 7 September 2018, consideration of the NTW schedule in the Building On site Award was deferred until after the Construction Group Full Bench issue a decision in relation to clause 28. 71

[140] In relation to the Joinery and the Mobile Crane Awards, a conference about the National Training Wage issues in these two awards will be held at 2pm on Friday 23 August 2019 in Sydney. A summary of submissions in relation to the Joinery Award and the Mobile Crane Award is at Attachment C.

9. Terminology of rates

[141] In a Statement 72 of March 2018, an issue raised by Ai Group regarding the terminology used to describe rates was referred to the plain language Full Bench. The issue is set out in that statement as follows:

‘[4] The Ai Group submission of 31 August 2016 is as follows:

‘3. Our first concern relates to the characterisation of premiums payable pursuant to an award. Modern awards variously characterise premiums that are payable to an employee as penalties, loadings or allowances. For example, an employee may be entitled to a shift “loading” in respect of work performed during a shift at a particular time. In numerous instances, the characterisation of a particular premium payable under an award has been altered in the corresponding provision of an exposure draft. For instance, where a current award mandates the payment of a shift “allowance”, the exposure draft may instead refer to it as a shift “penalty”. A change to the terminology used to describe a particular payment in an award often has implications for the calculation of other entitlements in the award. We are also concerned that a change in terminology may have implications for the calculation of entitlements under legislation, such as workers’ compensation and long service leave statutes.’

[142] In its submissions of 23 September 2016 Ai Group further submitted:

•  ‘An award provision which requires that shiftworkers be paid, say, 15% extra can legitimately be called a “loading”, but it cannot legitimately be called a “penalty rate” or a “shift rate”.

•  An award provision which states that shiftworkers are to be paid, say, 115% of the ordinary time rate cannot legitimately be referred to as a “loading” or an “allowance”, but it can be referred to as a “shift rate”.

•  The annual leave clause in an award cannot legitimately refer to the “shift loadings” in the shiftwork clause if the shift loadings (e.g. 15%) have been replaced with shift rates (e.g. 115%) and the loading is not separately identified.

•  The annual leave clause in the award cannot provide that an employee is to receive a 17.5% loading or any higher “shift penalty”, if the former shift penalty of, say, 15% has been redrafted as 115%.’

[143] In the Group 3 decision, 73 the Full Bench acknowledged that payment to compensate employees for working shiftwork had been variously described as penalties, loadings, allowances, or rates in modern awards and that ‘shift penalties’ had been used in the Exposure Drafts to make the term consistent, stating that:

‘We are satisfied that a consistent approach on shift penalties is appropriate. While Ai Group proffers a return to existing terminology, an examination of the current award provisions shows there is no consistency between or even within modern awards. The Ai Group submissions on inconsistencies within the exposure drafts of the awards are noted and we will provide provisional views as to how these may be resolved.’

[144] The Full Bench referred this issue to the Plain Language Full Bench. 74

[145] We agree with Ai Group’s explanation of the problems with terminology set out at [142]. We propose to make amendments to the terminology on an award by award basis during the light touch process. Interested parties will be given the opportunity to make submissions about those proposed changes during that process.

[146] In relation to annual leave loading, Ai Group contended that any reference to an employee being paid the higher of annual leave loading or ‘shift loading’ in exposure drafts could be interpreted as an employee on annual leave being paid the higher of 17.5% or a shift loading of, for example 130%. Ai Group stated that this could lead to some shiftworkers being paid 230% while on annual leave. The Ai Group Submission is as follows:

‘4. Our second concern relates to the manner in which premiums are expressed in exposure drafts. Numerous exposure drafts state, for example, that a shift worker is to be paid 130% of the relevant rate, rather than a 30% loading. This has implications for the calculation of other award entitlements which still refer to loadings (e.g. annual leave payments).’” (footnotes omitted)’

[147] The Group 3 Full Bench has previously expressed the view that the provisions in some awards may be ambiguous because the annual leave loading clause isolates the loading component of the shiftwork provision and compares it to annual leave loading. As the redrafted penalty rates clause no longer identifies the loading component of the shiftwork penalty separately, the annual leave loading clause is not comparing like with like. 75

[148] In a statement issued on 28 February 2019 (the February 2019 statement) we agreed with the Ai Group’s explanation of the problems with terminology in their submissions set out at paragraph [2] of this decision. 76 We proposed to make amendments to the terminology on an award by award basis during the light touch process.

[149] We also accepted the submission of the Ai Group that the terminology used in exposure drafts to describe various penalties is likely to cause confusion. 77 We noted that of the 112 modern awards with a provision for annual leave loading, 56 contained a reference to an employee being paid the higher of the annual leave loading or a shift ‘loading’ or ‘allowance’. These 56 awards are set out at Attachment D of this decision. To resolve the issue, we expressed the following provisional view in the February 2019 Statement:

‘[67] In relation to the annual leave loading issue, we propose adopting the suggestion of Ai Group (based on the Clerks PLED):

‘(c) For an employee who would have worked on day work only had they not been on leave, the additional payment is the greater of:

(i) 17.5% of the employee’s minimum hourly rate for the employee’s ordinary hours of work in the period; or

(ii) The minimum hourly rate for the employee’s ordinary hours of work in the period inclusive of weekend penalty rates as specified in clause 21— Penalty rates (employees other than shiftworkers). For the purposes of this clause, the relevant weekend penalty does not include the minimum hourly rate for the employee’s ordinary hours of work.

(d) For an employee who would have worked on shiftwork had they not been on leave, the additional payment is the greater of:

(i) 17.5% of the employee’s minimum hourly rate for the employee’s ordinary hours of work in the period; or

(ii) The minimum hourly rate for the employee’s ordinary hours of work in the period inclusive of shift and weekend penalty rates for shiftwork as specified in clause 28—Penalty rates for shiftwork. For the purposes of this clause, the relevant penalty rates for shiftwork do not include the minimum hourly rate for the employee’s ordinary hours of work.

[68] This solution appears to be relatively straightforward in terms of drafting. However, it requires the reader to deduct the minimum wage from the penalty rates clause and then compare the remainder to the annual leave loading. This may make the award more complex and difficult for users to apply.

[69] We note that in the plain language review of the Clerks Private Sector Award 2010, Ai Group raised a related issue in exposure drafts where the public holiday penalty clause has been moved from the public holidays clause to the penalty rates clause. In those proceedings, Ai Group submitted that this has created an issue in the annual leave loading clause because:

‘It requires the payment of “penalty rates as specified in clause 23”, which prescribes weekend and public holiday penalty rates. This deviates substantively from the current clause 29.3(b)(i), which contemplates only weekend penalty rates. It thereby creates an additional entitlement that is not bestowed by the Award.’

[70] In a decision in September 2018 we decided to insert the word “weekend” before the words “penalty rates” in clause (c)(ii) and the words “shift and weekend” before the words “penalty rates” in clause (d)(ii) as an interim measure, as set out in [67]. We also propose to make this change to all exposure drafts set out at Attachment B.’ 78

[150] Interested parties were invited to make submissions in relation to this proposal. Submissions were received from the following parties:

(c) Not more than 10 hours exclusive of meal breaks (except if paid for at overtime rates) are to be worked in any one day.

25.2 Altering spread of hours

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

Call Centres Award

Clause 24 Ordinary hours of work provides, relevantly:

‘24.6 Spread of ordinary hours of work

(a) Subject to clause 24.6(b), except as provided for in clause 24.8(a)(i), the ordinary hours of work for day work must be worked between the following spread of hours:

(i) Monday to Friday—7.00 am to 7.00 pm;

(ii) Saturday—midnight on Friday and midnight on Saturday.

(b) Employees may be required to work ordinary hours outside the spread of hours in clause 24.6(a)(i) or (ii) subject to payment of the penalty rates in clause 24.7(a).

(c) Any work performed by an employee prior to the spread of hours which is continuous with ordinary hours is to be regarded as part of the 38 ordinary hours of work.

…

24.8 Flexibility in relation to working hours

(a) The following forms of flexibility may be implemented in respect of all employees in a workplace or section(s) thereof, subject to agreement between the employer and the majority of the employees concerned in the workplace or relevant section(s). Agreement in this respect may also be reached between the employer and an individual employee:

(i) the spread of hours in clauses 24.6(a)(i) and (ii) may be altered by up to one hour at one or both ends of the daily spread;

(ii) in excess of 10 hours and up to 12 hours of ordinary time may be worked per day or shift. The implementation of 12 hour days or shifts is subject to the provisions of clause 24.13;

(iii) a roster may operate on the basis that the weekly average of 38 ordinary hours is worked over a period which exceeds 28 consecutive days but does not exceed 12 months.

(b) Where an agreement is reached by the majority of employees it will apply to all the employees in the workplace or section(s) to which the agreement applies. This does not in any way restrict the application of individual agreement.

(c) Where an agreement is reached in accordance with this clause, the agreement must be recorded in the time and wages records.’

Food Manufacturing Award

Clause 8 deals with facilitative provisions and states, relevantly:

‘8.1 Agreement to vary award provisions

(a) This award also contains facilitative provisions which allow agreement between an employer and employees on how specific award provisions are to apply at the workplace or section or sections of it. The facilitative provisions are identified in clauses 8.2, 8.3 and 8.4.

(b) The specific award provisions establish both the standard award condition and the framework within which agreement can be reached as to how the particular provisions should be applied in practice. Facilitative provisions are not to be used as a device to avoid award obligations nor should they result in unfairness to an employee or employees covered by this award.

…

8.3 Facilitation by majority or individual agreement

(a) The following facilitative provisions can be utilised by agreement between the employer and the majority of employees in the workplace or a section or sections of it, or the employer and an individual employee:

Clause number	Provision
13.4(j)	Period for casual election to convert
28.1(b)	Payment of wages
30.2(b)	Ordinary hours of work for day workers on weekends
30.2(c)	Variation to the spread of hours for day workers
30.5(a)	Methods of arranging ordinary working hours
31.2	Variation to the spread of hours for shiftworkers
32.1(b)	Working in excess of five hours without a meal break
37.2	Substitution of public holidays

(b) Where agreement is reached between the employer and the majority of employees in the workplace or a section or sections of it to implement a facilitative provision in clause 8.3(a), the employer must not implement that agreement unless:

(i) agreement is also reached between the employer and each individual employee to be covered by the facilitative provision; and

(ii) the agreement reached is kept by the employer as a time and wages record.

(c) Where no agreement has been sought by the employer with the majority of employees in accordance with clause 8.3(b), the employer may reach agreement with individual employees in the workplace or a section or sections of it and such agreement binds the individual employee provided the agreement reached is kept by the employer as a time and wages record and provided the agreement is only with an individual employee or a number of individual employees less than the majority in the workplace or a section or sections of it.

8.4 Facilitation by majority agreement

(a) The following facilitative provisions may only be utilised by agreement between the employer and the majority of employees in the workplace or a section or sections of it:

Clause number	Provision
30.3(c)	Ordinary hours of work, continuous shiftworkers
30.4(b)	Ordinary hours of work, non-continuous shiftworkers
30.5(c)	12 hour days or shifts
31.5(d)	Public holiday shifts
34.2	Conversion of annual leave to hourly entitlement
34.11(g)	Annual close down

(b) Where agreement is reached with the majority of employees in the workplace or a section or sections of it to implement a facilitative provision in clause 8.4(a), that agreement binds all such employees provided the agreement reached is kept by the employer as a time and wages record.’

Clause 30 Ordinary hours states, relevantly:

‘30.2 Ordinary hours of work—day workers

…

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

Manufacturing Award

Clause 8 deals with facilitative provisions and states, relevantly:

‘8.1 Agreement to vary award provisions

(a) This award also contains facilitative provisions which allow agreement between an employer and employees on how specific award provisions are to apply at the workplace or section or sections of it. The facilitative provisions are identified in clauses 8.2, 8.3 and 8.4.

(b) The specific award provisions establish both the standard award condition and the framework within which agreement can be reached as to how the particular provisions should be applied in practice. Facilitative provisions are not to be used as a device to avoid award obligations nor should they result in unfairness to an employee or employees covered by this award.

…

8.3 Facilitation by majority or individual agreement

(a) The following facilitative provisions can be utilised by agreement between the employer and the majority of employees in the workplace or a section or sections of it, or the employer and an individual employee:

Clause number	Provision
14.4(j)	Period for casual election to convert
34.1(b)	Payment of wages
36.2(b)	Ordinary hours of work for day workers on weekends
36.2(c)	Variation to the spread of hours for day workers
36.5(a)	Methods of arranging ordinary working hours
37.2	Variation to the spread of hours for shift workers
38.1(b)	Working in excess of five hours without a meal break
44.2	Substitution of public holidays

(b) Where agreement is reached between the employer and the majority of employees in the workplace or a section or sections of it to implement a facilitative provision in clause 8.3(a), the employer must not implement that agreement unless:

(i) agreement is also reached between the employer and each individual employee to be covered by the facilitative provision; and

(ii) the agreement reached is kept by the employer as a time and wages record.

(c) Where no agreement has been sought by the employer with the majority of employees in accordance with clause 8.3(b), the employer may reach agreement with individual employees in the workplace or a section or sections of it and such agreement binds the individual employee provided the agreement reached is kept by the employer as a time and wages record and provided the agreement is only with an individual employee or a number of individual employees less than the majority in the workplace or a section or sections of it.’

(Emphasis added)

[279] Clause 36 Ordinary hours of work states, relevantly:

‘36.2 Ordinary hours of work—day workers

…

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

Pharmaceutical Industry Award

Clause 23 Ordinary hours of work states, relevantly:

‘23.2 Ordinary hours of work—day workers

…

(b) The ordinary hours of work for day workers are to be worked continuously, except for meal breaks and rest pauses, between 7.45 am and 5.15 pm, Monday to Friday inclusive. The spread of hours may be altered by up to one hour at either end of the spread by agreement between the employer and the majority of employees in the plant, work section or sections concerned.’

Seafood Processing Award

Clause 23 Ordinary hours of work states, relevantly:

‘23.2 Ordinary hours of work—day workers

…

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

Storage Services Award

Clause 8 deals with facilitative provisions and states, relevantly:

‘8.1 Agreement to vary award provisions

(a) This award contains facilitative provisions that allow agreement between an employer and employees on how specific award provisions are to apply at the workplace or enterprise level.

(b) The specific award provisions establish both the standard award conditions and the framework within which agreement can be reached as to how the particular provisions should be applied in practice. Facilitative provisions are not to be used as a device to avoid award obligations nor should they result in unfairness to an employee or employees covered by this award.

…

8.3 Facilitation by majority agreement

The following facilitative provisions can be utilised upon agreement between the employer and the majority of employees in the workplace or part of it. Once such an agreement has been reached, the particular form of flexibility agreed upon may be utilised by agreement between the employer and an individual employee without the need for the majority to be consulted:

(i) Payment of wages—electronic funds transfer;

(ii) Hours of work—ordinary hours;

(iii) Hours of work—days of week;

(iv) Hours of work—spread of hours;

(v) Hours of work—maximum number of hours; and

(vi) Shift rosters.

(b) The agreement reached must be recorded in writing and kept as a time and wages record.’

Clause 22 Ordinary hours of work states, relevantly:

‘22.2 Spread of hours

(a) Ordinary hours will be worked between 7.00 am and 5.30 pm.

(b) The spread of hours may be altered by up to one hour at either end of the spread, by agreement between an employer and the majority of employees concerned or between the employee and the employer.’

Sugar Industry Award

Clause 29 Ordinary hours of work states, relevantly:

‘29.3 Other than field sector

…

(b) Weekly hours of work—day workers

(i) The ordinary hours of work are to be an average of 38 per week.

(ii) The ordinary hours of work may be worked from 6.00 am to 6.00 pm Monday to Friday.

(iii) Not more than 10 hours exclusive of meal breaks (except if paid for at overtime rates) are to be worked in any one day.

(c) Altering spread of hours

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

Attachment F– 80 modern awards containing a shutdown provision

1. Aboriginal Community Controlled Health Services Award 2010 (clause 26.3)

2. Aircraft Cabin Crew Award 2010 (clause 25.4)

3. Airline Operations–Ground Staff Award 2010 (clause 34.9)

4. Alpine Resorts Award 2010 (clause 26.3)

5. Aluminium Industry Award 2010 (clause 22.5)

6. Ambulance and Patient Transport Industry Award 2010 (clause 30.12)

7. Animal Care and Veterinary Services Award 2010 (clause 26.5)

8. Aquaculture Industry Award 2010 (clause 23.3)

9. Asphalt Industry Award 2010 (clause 25.4)

10. Banking, Finance and Insurance Award 2010 (clause 24.5)

11. Broadcasting and Recorded Entertainment Award 2010 (clause 23.4)

12. Building and Construction General On-site Award 2010 (clause 38.3)

13. Business Equipment Award 2010 (clause 31.4)

14. Car Parking Award 2010 (clause 25.4)

15. Cemetery Industry Award 2010 (clause 24.3)

16. Cement and Lime Award 2010 (clause 24.4)

17. Children’s Services Award 2010 (clause 24.4)

18. Cleaning Services Award 2010 (clause 29.6)

19. Clerks—Private Sector Award 2010 (clause 29.5)

20. Coal Export Terminals Award 2010 (clause 19.7)

21. Commercial Sales Award 2010 (clause 24.5)

22. Concrete Products Award 2010 (clause 26.4)

23. Contract Call Centres Award 2010 (clause 27.9)

24. Educational Services (Post-Secondary Education) Award 2010 (clause 25.6)

25. Electrical Power Industry Award 2010 (clause 27.8)

26. Electrical, Electronic and Communications Contracting Award 2010 (clause 28.5)

27. Food, Beverage and Tobacco Manufacturing Award 2010 (clause 34.11)

28. Gardening and Landscaping Services Award 2010 (clause 24.9)

29. Gas Industry Award 2010 (clause 25.3)

30. General Retail Industry Award 2010 (clause 32.5)

31. Graphic Arts, Printing and Publishing Award 2010 (clause 37.12)

32. Hair and Beauty Industry Award 2010 (clause 33.5)

33. Health Professionals and Support Services Award 2010 (clause 31.4)

34. Higher Education Industry—Academic Staff—Award 2010 (clause 27.2)

35. Higher Education Industry—General Staff—Award 2010 (clause 30.4)

36. Horse and Greyhound Training Award 2010 (clause 23.3)

37. Hospitality Industry (General) Award 2010 (clause 34.3)

38. Hydrocarbons Industry (Upstream) Award 2010 (clause 27.7)

39. Joinery and Building Trades Award 2010 (clause 32.9)

40. Journalists Published Media Award 2010 (clause 24.8)

41. Legal Services Award 2010 (clause 35.6)

42. Local Government Industry Award 2010 (clause 25.5)

43. Manufacturing and Associated Industries and Occupations Award 2010 (clause 41.10)

44. Meat Industry Award 2010 (clause 37.8)

45. Mining Industry Award 2010 (clause 23.6)

46. Mobile Crane Hiring Award 2010 (clause 25.5)

47. Miscellaneous Award 2010 (clause 23.4)

48. Nursery Award 2010 (clause 27.12)

49. Nurses Award 2010 (clause 31.9)

50. Oil Refining and Manufacturing Award 2010 (clause 26.6)

51. Pest Control Industry Award 2010 (clause 24.9)

52. Premixed Concrete Award 2010 (clause 24.4)

53. Pharmaceutical Industry Award 2010 (clause 26.10)

54. Plumbing and Fire Sprinklers Award 2010 (clause 34.3)

55. Poultry Processing Award 2010 (clause 27.9)

56. Premixed Concrete Award 2010 (clause 24.4)

57. Professional Employees Award 2010 (clause 19.4)

58. Quarrying Award 2010 (clause 29.4)

59. Racing Clubs Events Award 2010 (clause 30.3)

60. Racing Industry Ground Maintenance Award 2010 (clause 24.2)

61. Real Estate Industry Award 2010 (clause 25.2(c))

62. Registered and Licensed Clubs Award 2010 (clause 30.4)

63. Restaurant Industry Award 2010 (clause 35.3)

64. Road Transport (Long Distance Operations) Award 2010 (clause 23.8)

65. Road Transport and Distribution Award 2010 (clause 29.7)

66. Salt Industry Award 2010 (clause 25.6)

67. Seafood Processing Award 2010 (clause 27.11)

68. Security Services Industry Award 2010 (clause 24.9)

69. Silviculture Award 2010 (clause 29.3)

70. Storage Services and Wholesale Award 2010 (clause 26.6)

71. Sugar Industry Award 2010 (clause 33.5)

72. Supported Employment Services Award 2010 (clause 22.3)

73. Surveying Award 2010 (clause 24.3)

74. Telecommunications Services Award 2010 (clause 23.9)

75. Textile, Clothing, Footwear and Associated Industries Award 2010 (clause 41.7)

76. Timber Industry Award 2010 (clause 33.11)

77. Vehicle Manufacturing, Repair, Services and Retail Award 2010 (clause 29.12)

78. Water Industry Award 2010 (clause 27.4)

79. Wine Industry Award 2010 (clause 31.9)

80. Wool Storage, Sampling and Testing Award 2010 (clause 26.3)

 1   [2019] FWCFB 1255

 2   [2017] FWCFB 4419; [2018] FWCFB 3009; [2018] FWCFB 4177; [2018] FWCFB 4704 and [2018] FWCFB 7447

 3   Revised schedule of draft determinations

 4   [2019] FWCFB 1255

 5   [2019] FWCFB 1255 at [41]

 6 Ibid at [28]

 7   [2019] FWC 2698

 8   See Statement issued on 18 April 2019, [2019] FWC 2698

 9   [2019] FWC 3430

 10   ABI submission, 9 May 2019 Plain Language re-drafting – light touch at 8.1-8.2

 11   Ai Group submission, 9 May 2019 Plain Language re-drafting – light touch at [79]

 12   Ai Group submission, 9 May 2019 Plain Language re-drafting – light touch at [81]-[86]

 13 [2015] FWC 6555

 14   [2017] FWCFB 1638

 15   [2017] FWCFB 344; [2017] FWCFB 1612; [2018] FWCFB 3337; [2018] FWCFB 5504; [2018] FWCFB 6803

 16   [2018] FWCFB 5553; [2018] FWCFB 6980

 17   [2017] FWCFB 5397; [2018] FWCFB 2559; [2018] FWCFB 4496, [2018] FWCFB 6709

 18   [2018] FWCFB 2710; [2018] FWCFB 4468; [2018] FWCFB 6711

 19   [2018] FWCFB 6850; [2019] FWCFB 276

 20   [2018] FWCFB 6755

 21   United Voice submission, 23 November 2018, paragraphs 11 – 13

 22   Ai Group submission in reply, 30 November 2018, paragraphs 5 – 6

 23   [2018] FWCFB 7447

 24   [2018] FWCFB 6781, paragraph 55

 25 Ibid

 26   Ai Group submission, 23 November 2018, paragraphs 3 – 4

 27   United Voice submission, 23 November 2018, paragraphs 2 – 10

 28   Ai Group submission in reply, 30 November 2018, paragraphs 3 – 4

 29   [2019] FWCFB 272

 30   [2017] FWCFB 4419; [2017] FWCFB 5258 [2018] FWCFB 3009; [2018] FWCFB 4177; [2018] FWCFB 4704; [2018] FWCFB 7447 and [2019] FWCFB 2548

 31   [2018] FWCFB 7447

 32 Ibid at [67], [70], [75] and [78]

 33 Ibid at [94] and [95]

 34 Ibid at [101]

 35 Ibid at [102]

 36 Ibid at [103]-[104]

 37 Ibid at [105]

 38 Ibid at [108]

 39   MBA submission, 25 January 2019 at [11]-[12]

 40   CFMMEU (C&G) submission, 8 February 2019 at [10]

 41   [2018] FWCFB 7447 at [114]

 42 Ibid at [115]-[116]

 43 Ibid at [117]

 44   Independent Schools’ submissions, 25 January 2019 at [3]

 45   [2018] FWCFB 7447 at [121]

 46 Ibid at [122]

 47 Ibid at [123]

 48 Ibid at [125]

 49 Ibid at [126]

 50   [2019] FWCFB 2548

 51   [2018] FWCFB 7447 at [28]

 52   [2018] FWC 1544 at [14] – [22]

 53   [2015] FWCFB 4658

 54   Ai Group submissions – 23 September 2016, paragraphs 34 – 35

 55   [2017] FWCFB 3433 at [339]

 56   Ai Group Submission, 22 March 2019 at [7] – [9]

 57   HIA submission, 22 March 2019 at 3.2.4 – 3.2.8

 58   Statement and Directions [2018] FWCFB 7006

 59   Housing Industry Association submission, 27 November 2018

 60   CFMMEU - Construction and General Division submission, 28 November 2018

 61   Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union submission, 28 November 2018

 62   Australian Manufacturing Workers' Union submission, 28 November 2018

 63   Australian Hotels Association submission, 29 November 2018

 64   United Voice submission, 3 December 2018

 65   Transcript, 23 October 2018 at PN6

 66   [2018] FWCFB 7006

 67   [2016] FWC 4495

 68   [2017] FWCFB 3176

 69   [2017] FWCFB 4174

 70   PR596349

 71   Transcript – 7 September 2018 PN15

 72   [2018] FWC 1544 at [14] – [22]

 73   [2017] FWCFB 3433

 74   [2017] FWCFB 5536 at [582], [592]

 75 Ibid at [586]

 76   [2019] FWCFB 1255 at [63]

 77 Ibid at [65]

 78   [2019] FWCFB 1255 at [67] to [70]

 79   ABI, submission,1 April 2019 at [5.1]-[5.3]

 80   Ai Group submission, 22 March 2019 at [13]-[24]

 81  AWU submission, 25 March 2019 at [3]-[8]

 82   AMWU submission, 27 March 2019 at [8]-[11]

 83   CFMMEU – MD submission ,8 April 2019 at [5]-[7]

 84   CFMMEU – C&G submission, 2 April 201 at [12]-[14]

 85   CFMMEU – M&E submission, 22 March 2019 at [5]-[7]

 86   CPSU submission, 29 March 2019 at [2]- [4]

 87   CEPU submission, 29 March 2019 at [3]-[5]

 88   HIA submission, 22 March 2019 at [4.1.1]-[4.1.8]

 89   United Voice, submission, 4 April 2019 at [3]-[4]

 90   Ai Group submission in reply, 18 April 2019 at [7]-[24]

 91   CFMMEU – C&G submission in reply, 17 April 2019 at [12]-[14]

 92   [2018] FWCFB 6849

 93   AMWU Submission, 8 December 2018

 94   AWU Submission, 11 December 2018

 95   [2015] FWCFB 7236

 96   [2016] FWCFB 4418 at [42]

 97   AMWU Submission, 8 December 2018

 98   The Concise Macquarie Dictionary Revised Edition Doubleday 1982

 99   AMWU submissions, 8 December 2019 at [23] – [30]

 100 Ibid at [17]

 101   AWU submission, 11 December 2018 at [9]

 102 Ibid at [12]

 103 Ibid at [18]

 104 Ibid at [19]

 105   Ai Group Submission in reply, 21 December 2018

 106   Ai Group submission, 21 December 2019 at [6]

 107 Ibid at [8] – [10]

 108 Ibid at [73]

 109   ABI submission, 7 December 2018, at [2.6]

 110 Ibid at [2.3]

 111   Print R7898, 5 August 1999

 112   AMWU Submission in reply, 21 December 2018

 113P7898, 5 August 1999 at [147]

 114   Manufacturing and Associated Industries and Occupations Award 2010

 115   Ai Group Submission, 6 December 2018

 116   As referred to in Ai Group Submission 6 December 2018 at [14]

 117   Print R7898

 118   AMWU Submission in reply, 21 December 2018 at [34] to [36]

 119   MTA Submission, 21 November 2018

 120   See clause 25.1(b)

 121   [2017] FWC 5861

 122   [2016] FWCFB 6836.

 123 Ibid at [83]

 124 Ibid at [83]

 125   [2017] FWCFB 959

 126 Ibid at [34]

 127   [2017] FWCFB 5394

 128 Ibid at [76]; PR597595

 129   Construction, Forestry, Mining and Energy Union (CFMEU) submission October 2017 with the support of the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) and The Association of Professional Engineers, Scientists and Managers, Australia (APESMA)

 130   CFMEU submission October 2017 at [10]

 131 Ibid

 132   [2017] FWCFB 5394 at [63]-[67]

 133   [2019] FWCFB 1255.

134 CFMMEU – MD submission, 8 April 2019

135 United Voice submission, 4 April 2019

136 CFMMEU – C&G submission, 2 April 2019

137 ABI & NSWBC submission, 1 April 2019

138 CPSU submission, 29 March 2019

 139   CEPU submission, 29 March 2019

 140   AMWU submission, 27 March 2019

141 MBA submission, 22 March 2019

142 AWU submission, 25 March 2019

143 Ai Group submission, 22 March 2019

144 AMIEU submission, 22 March 2019

145 , CFMMEU – M&E submission, 22 March 2019

146 AHA submission, 22 March 2019

147 HIA submission, 22 March 2019

148 FAAA submission, 3 May 2019

149 CFMMEU – C&G submission in reply, 17 April 2019

150 Ai Group submission in reply, 18 April 2019

 151   AMIEU submission in reply, 17 May 2019

 152   [2017 FWCFB 3433 at [353] – [362]

 153   HIA, op cit., at paragraphs 4.3.2 to 4.3.3

 154   MBA, op cit

 155   HIA, op cit., at paragraph 4.3.5

 156   CFMMEU (C&G Division) submission, 2 April 2019 at [22]

 157   [2017] FWCFB 344; [2017] FWCFB 1612; [2018] FWCFB 3337; [2018] FWCFB 5504; [2018] FWCFB 6803

 158   [2018] FWCFB 5553; [2018] FWCFB 6980

 159   [2017] FWCFB 5397; [2018] FWCFB 2559; [2018] FWCFB 4496, [2018] FWCFB 6709

 160   [2018] FWCFB 2710; [2018] FWCFB 4468; [2018] FWCFB 6711

 161   [2018] FWCFB 6850; [2019] FWCFB 276

 162   [2018] FWCFB 6755

 163   [2017] FWCFB 4419; [2017] FWCFB 5258 [2018] FWCFB 3009; [2018] FWCFB 4177; [2018] FWCFB 4704; [2018] FWCFB 7447 and [2019] FWCFB 2548