4 yearly review of modern awards – Plain language re-drafting – Restaurant Industry Award 2010 and Hospitality Industry (General) Award 2010 (Am2016/15, AM2014/272 and AM2014/284)

[2017] FWCFB 4118

[2017] FWCFB 4118

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 and Hospitality Industry (General) Award 2010

(AM2016/15, AM2014/272 & AM2014/284)

JUSTICE ROSS, PRESIDENT
VICE PRESIDENT HATCHER
COMMISSIONER HUNT MELBOURNE, 22 AUGUST 2017

4 yearly review of modern awards – plain language project – Restaurant Industry Award 2010 and Hospitality Industry (General) Award 2010 – plain language re-drafting of award-specific clauses.

1. In this Statement we set out the next steps in the plain language project in relation to re-drafting the Restaurant Industry Award 2010 and the Hospitality Industry (General) Award 2010, which were published on 21 and 27 April 2017 respectively.

1. In a Statement issued on 10 May 2017[1] the Full Bench confirmed that interested parties were invited to file submissions by 8 June 2017 and submissions in reply by 22 June 2017.

Restaurant Industry Award – plain language exposure draft

1. Submissions were received from the following parties:

·   United Voice;

·   Business SA;

·   Australian Business Industrial and NSW Business Chamber.

1. Submissions in reply were received from United Voice.

1. A summary of the submissions received regarding the Restaurant Industry Award plain language exposure draft, along with a revised plain language exposure draft with changes tracked, will be published in conjunction with this Statement.

1. The interested parties are requested to review the published Summary of Submissions to ensure that their submissions are accurately characterised.

1. The Summary of Submissions was provided to the plain language expert and drafting comments were made in response to issues raised. Where there is no opposition by an interested party in response to an issue raised and where the plain language expert either accepts, agrees or has no objection to the submission regarding the issue, it has been noted and the plain language exposure draft has been provisionally revised. All other issues will be subject to conference and final determination by the Full Bench.

1. As a result of the drafting comments, the Full Bench seeks further submissions on a number of issues. We set out these issues below, referring to the item number used in the Summary of Submissions.

1. Item 20 – clauses 23.3, 23.5 and 23.11—Annualised salary arrangements

1. United Voice is invited to clarify their submissions. The drafting comment is that the point being made is not clear, given that in each case the employer is required to make up the difference and keep records for that purpose.

1. Item 21 – clause 24.5(a)—Special clothing allowance

1. United Voice is invited to explain how the draft provision does not properly describe the entitlements.

1. Item 28 – clause 28.4—Temporary close down

1. Business SA is invited to provide details of their comment, in particular, by describing the way in which the draft provision is unnecessarily long and repetitive.

1. Parties are invited to file further information in respect of the issues outlined at paragraphs [9], [10] and [11] by 4.00 pm on Tuesday 5 September 2017.

Hospitality Industry (General) Award – plain language exposure draft

1. Submissions were received from the following parties:

·   Australian Hotels Association;

·   United Voice;

·   Business SA;

·   Australian Business Industrial and NSW Business Chamber.

1. Submissions in reply were received from the following parties:

·   United Voice;

·   Australian Hotels Association.

1. A summary of the submissions received regarding the Hospitality Industry (General) Award plain language exposure draft, along with a revised plain language exposure draft with changes tracked, will be published in conjunction with this Statement.

1. The interested parties are requested to review the published summary of submissions to ensure that their submissions are accurately characterised.

1. The Summary of Submissions was provided to the plain language expert and drafting comments were made in response to issues raised. Where there is no opposition by an interested party in response to an issue raised and where the plain language expert either accepts, agrees or has no objection to the submission regarding the issue, it has been noted and the plain language exposure draft has been provisionally revised. All other issues will be subject to conference and final determination by the Full Bench.

1. As a result of the drafting comments, the Full Bench would like further information on a number of issues. We set out these issues below, referring to the item number used in the Summary of Submissions.

1. Item 4 – clause 2—Definitions

1. In relation to the definition of “appropriate level of training”, the Australian Hotels Association (AHA) is invited to specify how the intention and interpretation of the current clause has been changed by the re-drafted wording.

1. Items 14 and 15 – clause 11.1 (Casual employment)

1. The AHA and Business SA are invited to explain how clause 11.1 has altered the intention of casual employment.

1. Item 20 – clause 12.3 (Apprentices)

1. The AHA and United Voice are invited to explain why clause 14.4 of the Hospitality Industry (General) Award 2010 is preferable to clause 12.3.

1. Item 27 – clause 15.1(e)(ii) (Ordinary hours of work—Full-time employees)

1. The AHA is invited to explain how the intention and interpretation of clause 29.1(c)(ii) of the Hospitality Industry (General) Award 2010 would be altered by the re-drafted wording.

1. Item 30 – clause 15.2 (Ordinary hours of work—Catering in remote locations)

1. Business SA is invited to propose a definition of “remote location”.

1. Item 33 – clause 16—Breaks

1. The AHA is invited to explain how the insertion of the word “rest” is inconsistent with plain language drafting and how it would be likely to cause confusion.

1. The AHA is also invited to explain how clause 16.6 has altered the intent and interpretation of the additional payment for the break not given.

1. Item 43 – clauses 19.3 and 19.4 (Apprentice rates—proficiency payments—cooking trade and waiting trade

1. The AHA is invited to explain the basis for its concern.

1. Item 78 – Schedule A—Classification Structure and Definitions

1. In relation to the definitions of “Front office” grades 1, 2 and 3 and supervisor definitions in Schedule A.2.3, the AHA is invited to specify the material difference between the definitions in the Hospitality Industry (General) Awards 2010 and the re-drafted definitions.

1. Item 80 – Schedule A—Classification Structure and Definitions

1. In relation to the definition of “Storeperson grade 3” definition in Schedule A.2.7, the AHA is invited to specify the material difference between the definitions in the Hospitality Industry (General) Awards 2010 and the re-drafted definitions.

1. Parties are invited to file further information in respect of the issues outlined at paragraphs [19], [20], [21], [22], [23], [24], [25], [26], [27] and [28] by 4.00 pm on Tuesday 5 September 2017.

Next Steps

1. This Statement provides an update about the status of the plain language exposure drafts of the Restaurant Industry Award 2010 and the Hospitality Industry (General) Award 2010. Submissions have been filed by interested parties and the plain language expert has provided comments in relation to issues raised. A Summary of Submissions has been published along with this Statement.

1. The interested parties have been requested to review the published Summary to ensure that their submissions have been accurately characterised. If parties would like amendments to the draft summary of submissions they are invited to notify the Commission by not later than 4.00 pm, on Tuesday 5 September 2017.

1. Parties are invited to file particular information, as set out in paragraphs [12] and [29] of this Statement. Submissions are also invited in respect of the provisional views and comments expressed in the summaries of submissions.

1. Submissions, as outlined in paragraph [32] above, should be filed with the Commission by no later than 4.00 pm Tuesday 5 September 2017.

1. This matter will be set down for conference before the President in Melbourne on Tuesday 12 September 2017. If any party requests a video link to another location a request should be made in writing to [email protected].

PRESIDENT

[1] [2017] FWC 2579

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