FAIR WORK COMMISSION - Modern Awards Review - Road Transport (Long Distance Operations) Award 2010

[2013] FWC 3136

[2013] FWC 3136

FAIR WORK COMMISSION

STATEMENT AND DIRECTIONS

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch. 5, Item 6 - Review of all modern awards after first 2 years

Modern Awards Review - Road Transport (Long Distance Operations) Award 2010
(AM2012/39)

Road transport industry
SENIOR DEPUTY PRESIDENT HARRISON	SYDNEY, 20 MAY 2013

[1] On 15 February 2013 I issued directions with respect to the Road Transport (Long Distance Operations) Award 2010 (the Award). Written submissions were filed by the parties in accordance with these directions.

[2] A revised draft of the Award was prepared by my chambers on 6 May 2013. This draft was uploaded to the Fair Work Commission website. All references to particular clauses in this statement are made by reference to the 6 May 2013 draft.

[3] All applications to vary the Award were listed before me on 17 May 2013 for conference/programming. All proposed variations in the draft Award were discussed at the conference.

[4] The parties have indicated that they will continue to discuss the proposed variation to clause 14.2(d). The parties are requested to advise chambers as soon as possible whether the proposed variation is pressed and whether it ought to proceed by way of hearing.

[5] The parties have undertaken to consider the variation made to Schedule A of the Award and advise as soon as possible whether this is agreed.

[6] The parties have not reached agreement regarding the variations sought to the following clauses:

● Clause 4.2;
● Clause 10.3 (and any consequential amendments that may flow from including a provision for part-time employees in the Award);
● Clause 11.4;
● Clause 14.1(c)(vi);
● Clause 14.2(c)(i);
● Clause 14.2(c)(v); and
● All proposed variations relating to the issue of ordinary hours and ordinary time earnings.

[7] With respect to the issue of ordinary hours and ordinary time earnings, Ai Group has proposed the insertion of additional clauses in its written submissions, dated 13 March 2013. During the conference on 17 May 2013, Ai Group advised that this proposal is pressed. This proposed wording does not appear in the 6 May 2013 draft Award and so I reproduce it here:

A. Insert a new clause 20.3 in the Award, and renumber subsequent clauses accordingly:

“All hours worked outside of the ordinary hours of work will be overtime and all payments made to an employee in relation to work performed outside of these hours will be a payment in respect of overtime. An employee may be required to perform a reasonable amount of overtime subject to the requirements of subclause 20.4.”

B. Insert a new clause 13.4(c) in the Award:

“All rates in paragraph 13.4(a) have been calculated based on the rates which are payable in respect of an employee’s ordinary hours of work under subclause 13.1 and the industry allowance and overtime allowance referred to in clause 14. These amounts have been converted to a cents per kilometre rate based on an assumed average driving speed of 75 kilometres per hour. Accordingly, where an employee’s ordinary hours of work are structured in accordance with paragraph 20.2(a), any amount which an employee earns pursuant to paragraph 13.4(a) in any week which exceeds the amount specified in subclause 13.1 plus 30% (the industry allowance) will be a payment in respect of overtime.”

[8] The matters listed at paragraph [6] have been listed for arbitration on 9 - 11 October 2013 in Sydney.

[9] During the conference on 17 May 2013, the parties identified certain matters of fact that were not considered contentious, particularly in respect of the claim for part-time employment. The parties are encouraged to continue discussions regarding these matters with a view to narrowing the scope of evidence that is led by each of the parties.

[10] The parties are to file any witness or documentary evidence that they seek to rely on by close of business 6 September 2013.

[11] Any witness or documentary evidence in response must be filed by close of business 27 September 2013.

[12] The parties have advised that they may have further discussions regarding the clauses that have been listed for arbitration. If the scope of the matters contested is narrowed or if any of the variations sought are no longer pressed as a result of these discussions, the parties are requested to advise my chambers as soon as possible.

SENIOR DEPUTY PRESIDENT

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