4 yearly review of modern awards – Plain language re-drafting – Restaurant Industry Award 2010

[2017] FWC 6873

[2017] FWC 6873

FAIR WORK COMMISSION

STATEMENT

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

4 yearly review of modern awards – Plain language re-drafting – Restaurant Industry Award 2010
(AM2016/15)

JUSTICE ROSS, PRESIDENT MELBOURNE, 20 DECEMBER 2017

4 yearly review of modern awards – plain language re-drafting – Restaurant Industry Award 2010.

[1] In a decision of 24 October 2017 ([2017] FWCFB 5397) (the October decision) the Full Bench finalised the plain language project in relation to the re-drafting of the Restaurant Industry Award 2010 (the Restaurant award) subject to any issues arising from the plain language review of the Hospitality Industry (General) Award 2010.

[2] There are two outstanding issues arising out of the October decision.

[3] The first relates to clauses 15.1(e) and 26.2 of the plain language exposure draft and clause 31.2(d) of the current Restaurant award (see item 11 of the revised summary of submissions). Business SA was invited to submit a draft variation to address the issue they raised. 1 Business SA proposed the following draft variation to clause 26.2 in its submission of 13 November 2017:

‘26.2 Break after working overtime

(a) Clause 26.2 applies to an employee who works overtime and is next rostered to start work less than 8 hours after the employee finishes working overtime.

(b) The employee may delay the start of their next rostered shift until 8 hours after the employee finished working overtime without loss of pay for the rostered ordinary hours not worked.

(c) If the employee does not have an 8 hour break, the employer must pay the employee at the overtime rate until the employee has a break of at least 8 hours.

(d) Paragraphs (b) and (c) will not apply if:

(i) the employee works overtime prior to, and continuously with, their next rostered shift; and

(ii) the employee had a minimum break of 8 hours before starting the overtime.’ 2

[4] Interested parties were invited to comment on Business SA’s draft variation but no comments were received.

[5] The second issue relates to clause 24.6 of the exposure draft and the meaning of ‘ordinary rate of pay’ (see item 22 of the revised summary of submissions). At paragraph [44] of the October decision the Full Bench proposed to amend clause amend clause 24.6(a) as follows:

‘(a) An employer must pay an employee who works away from their employer’s workplace at their applicable ordinary rate of pay for time spent travelling both ways between the employee’s residence and their place of work.

NOTE: ordinary applicable rate of pay includes any penalties or loadings that apply to the distance work.’

[6] The interested parties were invited to file short written submissions on the proposed amendment. Submissions were received from Australian Business Industrial (ABI) and United Voice in relation to the meaning of ‘ordinary rate of pay’.

[7] United Voice support the amendment proposed by the Commission. 3

[8] ABI submitted that ‘ordinary rate’ is intended to refer to the ‘ordinary base rate of pay’ (as is the terminology used elsewhere in the current Restaurant award) of the ‘minimum hourly rate’ (in the plain language draft terminology. 4

[9] The revised summary of submissions reflecting the two outstanding issues was published on 12 November 2017.

[10] In their submission ABI sought the opportunity for further discussions regarding the intended operation of clause 24.6. In accordance with this request, interested parties should hold further discussions and advise the Commission by 4.00 pm Thursday, 1 February 2018 of either a consent position or further submissions in relation to the issues at [3] and [5] of this Statement.

[11] The Full Bench propose to resolve the issues subject of this Statement on the papers unless it considers, upon the request of the parties, that there should be a further hearing concerning these issues.

[12] Any party who wishes to propose a further hearing should do so by 4.00 pm Thursday, 1 February 2018. Requests should be sent to [email protected].

PRESIDENT

 1   [2017] FWCFB 5397 at [31].

 2   Business SA submission, 13 November 2017.

 3   United Voice submission, 1 December 2017.

 4   ABI submission, 24 November 2017.

Printed by authority of the Commonwealth Government Printer

<Price code A, PR598907>