4 yearly review of modern awards – reasonable overtime and the national employment standards – Hospitality Industry (General) Award 2010 and others

[2018] FWC 1244

[2018] FWC 1244

FAIR WORK COMMISSION

STATEMENT

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

4 yearly review of modern awards – reasonable overtime and the national employment standards – Hospitality Industry (General) Award 2010 and others
(AM2016/15 & AM2014/272)

JUSTICE ROSS, PRESIDENT MELBOURNE, 28 FEBRUARY 2018

4 yearly review of modern awards – plain language re-drafting – reasonable overtime – Hospitality Industry (General) Award 2010.

[1] During proceedings related to the plain language re-drafting of the General Retail Industry Award 2010 (Retail Award) an issue arose regarding the interaction between ‘reasonable overtime’ provisions in clause 29.1 and s.62 of the Fair Work Act (the Act). Clause 29.1 sets out factors to be taken into account in determining whether overtime is reasonable and is in the same terms as s.62 of the NES.

[2] Clause 29.1 of the Retail Award is as follows:

‘29.1 Reasonable overtime

(a) Subject to clause 29.1(b) an employer may require an employee other than a casual to work reasonable overtime at overtime rates in accordance with the provisions of this clause.

(b) An employee may refuse to work overtime in circumstances where the working of such overtime would result in the employee working hours which are unreasonable having regard to:

(i) any risk to employee health and safety;

(ii) the employee’s personal circumstances including any family responsibilities;

(iii) the needs of the workplace or enterprise;

(iv) the notice (if any) given by the employer of the overtime and by the employee of their intention to refuse it; and

(v) any other relevant matter.’

[3] A similar issue arose in the relation to the Pharmacy Industry Award 2010 (the Pharmacy award). The Plain Language Full Bench decided to vary the Pharmacy award by deleting the reasonable overtime clause and inserting the following note at the beginning of the overtime clause:

‘NOTE: Under the NES (see section 62 of the Act) an employee may refuse to work additional hours if they are unreasonable. Section 62 sets out factors to be taken into account in determining whether the additional hours are reasonable or unreasonable.’ 1

[4] In a Statement 2 issued on 22 December 2017 (December Statement) the Plain Language Full Bench indicated a provisional view to insert the above note in all modern awards with clauses in the same terms as the Pharmacy Industry Award 2010 and to remove the reasonable overtime clauses that replicate s.62 of the NES.

[5] Ten additional awards that contained a clause in the same terms as the Pharmacy award were identified in an attachment to the December Statement. The Hospitality Industry (General) Award 2010 (the Hospitality Award) contains a reasonable overtime clause in the same terms but was not listed in the attachment.

[6] The Hospitality award will be referred to the Plain Language Full Bench so that it can be considered along with the other modern awards with reasonable overtime provisions.

[7] In the December Statement interested parties who opposed the provisional view expressed in that Statement were directed to file written submissions in support of their opposition. The Australian Industry Group (Ai Group) filed a submission opposing the provisional view and proposed that the following provision be included in each of awards identified:

‘XX. Subject to section 65 of the Act, an employer may require an employee to work reasonable overtime at overtime rates.

NOTE: Under section 62 of the Act an employee may refuse to work additional hours if they are unreasonable. Section 62 sets out factors to be taken into account in determining whether the additional hours are reasonable or unreasonable.’

[8] Any party with an interest in the Hospitality award who oppose the provisional view expressed at [4] are directed to file a written submission by Friday, 9 March 2018.

[9] In correspondence of 28 February 2018 the Australian Manufacturing Workers’ Union noted the Ai Group submission and sought an opportunity to respond to it.

[10] Interested parties are directed to file any reply submissions by Friday, 16 March 2018.

[11] In the December Statement we proposed to determine the reasonable overtime issue on the papers unless any party sought an oral hearing.

[12] Any parties with an interest in the Hospitality award are invited to request an oral hearing by Friday, 9 March 2018.

[13] Liberty to apply.

PRESIDENT

 1   [2017] FWC 344.

 2   [2017] FWCFB 6884

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