Modern Award Reviews 2012 Contract Call Centres Award 2010
[2012] FWA 8600
•5 OCTOBER 2012
[2012] FWA 8600 |
|
STATEMENT |
Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch. 5, Item 6 - Review of all modern awards (other than modern enterprise and State PS awards) after first 2 years
Modern Award Reviews 2012
Contract Call Centres Award 2010
(AM2012/100)
Clerks - Private Sector Award 2010
(AM2012/52 and others)
SENIOR DEPUTY PRESIDENT KAUFMAN | MELBOURNE, 5 OCTOBER 2012 |
[1] The Australian Municipal, Administrative, Clerical and Services Union “ASU” has made an application under schedule 5, item 6 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 to review the Contract Call Centres Award 2010 (the CCC Award) in the 2012 Award Review process.
[2] It seeks that the CCC Award be varied “to remove the Annualised Salaries clause (18.5) ...” It has made a similar application to remove the annualised salaries clause in the Clerks - Private Sector Award 2010 (the Clerks Award).
[3] Clause 18.5 of the CCC Award reads:
18.5 Annual salary arrangements for higher classifications
(a) The provisions of clause 18.5(b) will apply to the following classifications:
• Customer contact stream—Principal Customer Contact Leader;
• Clerical and administration stream—Clerical and Administration Employee-Level 5; and
• Contract Call Centre Industry Technical Associate
(b) Employees on annual salary arrangements will be compensated for any payments arising from the following award provisions in accordance with the provisions of clause 18.5(c):
• Clause 18.4—Higher duties;
• Clause 20—Allowances;
• Clause 22—Payment of wages;
• Clause 24—Ordinary hours of work, rostering and penalty rates;
• Clause 25—Breaks;
• Clause 26—Overtime;
• Clause 27.4—Annual leave loading;
• Clause 30.4—Payment for time worked on a public holiday.
(c) The following obligations apply to employers in relation to the higher classifications set out in clause 18.5(a):
(i) The ordinary hours of work of employees in those classifications set out in clause 18.5(a) should not exceed the ordinary hours of duty in the particular industry or sector of industry in which the employee is employed. Employers will compensate for:
• time worked regularly in excess of ordinary hours of duty;
• time worked on public holidays;
• time spent standing by in readiness for a call back;
• time spent carrying out duties outside of the ordinary hours of duty over the telephone or via remote access arrangements; or
• time worked on afternoon, night or weekend shifts;
(ii) either by:
• taking this factor into account in the fixation of annual remuneration;
• granting special additional remuneration;
• granting a special allowance or loading; or
• granting other compensation such as special additional leave.
(d) An employee must be advised in writing upon engagement, or in any other case upon a request being made in writing to the employer, of the method of compensation being used and the normal starting and finishing times in the relevant establishment. The methods of compensation are set out in clause 18.5(c)(ii). The provisions of clauses 18.5(c)(i) and (ii) are to be used as the basis for the calculation of the annual salary. If the employer is compensating the employee by a method identified in clause 18.5(c)(ii), the employer must identify the special additional remuneration, allowance or loading which is being paid.
(e) Salary review
An employee’s salary will be reviewed by the employer at least annually to ensure that the compensation is appropriate having regard to the factors in clause 18.5(c)(i).
(f) Transfers
Where an employee is transferred permanently from day work to shiftwork or from shiftwork to day work, such employee should receive at least one month’s notice. However, the employer and the employee may agree on a lesser period of notice.
(g) Reasonable time in excess of ordinary hours
(i) Subject to clause 18.5(g)(ii) an employer may require an employee to work a reasonable amount of time in excess of ordinary hours of duty. The method of compensation must be in accordance with clause 18.5(c)(ii).
(ii) An employee may refuse to work time in excess of ordinary hours of duty in circumstances where the working of such additional time would result in the employee working hours which are unreasonable having regard to:
• any risk to the employee’s health and safety;
• the employee’s personal circumstances including family responsibilities;
• the needs of the workplace or enterprise;
• the notice (if any) given by the employer of the additional time which is required to be worked and by the employee of their intention to refuse it;
• the employee’s compensation; and
• any other relevant matter.
(h) Payment of wages
(i) At the election of the employer, wages may be paid weekly or fortnightly or in accordance with existing practices.
(ii) Where agreement is reached with an individual employee, wages may be paid four-weekly or monthly. This agreement may be reached at the time when the employee commences employment, but is not limited to such time.
(i) Annual leave loading
In addition to the annual leave payments specified in the NES, employees must be paid an annual leave loading of 17.5%. However, where an employer, in determining the total remuneration of an employee can demonstrate that it has taken into account that an annual leave loading will not be paid to the employee because the total remuneration has been fixed having regard to this fact or because other benefits related to annual leave of equal value have been granted by the employer, an entitlement to the annual leave loading will not accrue.
[4] Clause 17 of the Clerks Award reads:
17.1 Annual salary instead of award provisions
(a) An employer may pay an employee an annual salary in satisfaction of any or all of the following provisions of the award:
(i) clause 16—Minimum weekly wages;
(ii) clause 19—Allowances;
(iii) clauses 27 and 28—Overtime and penalty rates; and
(iv) clause 29.3—Annual leave loading.
(b) Where an annual salary is paid the employer must advise the employee in writing of the annual salary that is payable and which of the provisions of this award will be satisfied by payment of the annual salary.
17.2 Annual salary not to disadvantage employees
(a) The annual salary must be no less than the amount the employee would have received under this award for the work performed over the year for which the salary is paid (or if the employment ceases earlier over such lesser period as has been worked).
(b) The annual salary of the employee must be reviewed by the employer at least annually to ensure that the compensation is appropriate having regard to the award provisions which are satisfied by the payment of the annual salary.
17.3 Base rate of pay for employees on annual salary arrangements
For the purposes of the NES, the base rate of pay of an employee receiving an annual salary under this clause comprises the portion of the annual salary equivalent to the relevant rate of pay in clause 16—Minimum weekly wages and excludes any incentive-based payments, bonuses, loadings, monetary allowances, overtime and penalties.
[5] In the CCC Award matter, both parties appear to have taken the clause to provide to employers covered by the CCC Award the ability to require only employees in the three higher classifications referred to in clause 18.5(a) to be remunerated by way of an annual salary in satisfaction of the obligations imposed on the employer by several other award clauses - the clauses referred to in clause 18.5(b). In the Clerks Award matter the parties have proceeded on the basis that any employees may receive an annual salary in satisfaction of the provisions of the four award clauses set out in clause 17.1. That seems to me to be a correct understanding of the intent and effect of the clauses.
[6] In the CCC Award hearing, Mr Nucifora, in tracing the history of the clause, suggested that it was in similar terms to that appearing in the Clerks Award. In the Clerks Award hearing he went so far as to suggest that they were the same. That is manifestly not so.
[7] In Clerks Private Sector Award 2010 1 on an application by the ASU to vary the annualised salaries clause to require agreement when annual salary arrangements are entered into, the Full Bench said:
[8] Awards operate in conjunction with contracts of employment. It is generally accepted that clerical employees are commonly remunerated by way of annualised salaries whether the relevant award expressly provides for such arrangements or not. It is also generally accepted that if the salary is expressly paid in compensation of all award entitlements and the amount paid exceeds the amount due under the award then the arrangement is not inconsistent with the award. The intention of the ASU in making its application is that the only arrangements which can legally be entered into are those expressly provided for in the award.
[8] I respectfully concur with the exposition of the law enunciated by the Full Bench. An analysis of the applicable law may be found in Poletti v Ecob (No.2) 2 and in Australian and New Zealand Banking Group Limited v Finance Sector Union of Australia.3
[9] It may well be the case that removal of the annualised salaries clauses will have the effect that employers covered by the CCC Award will be able to require a wider range of employees, beyond those referred to in clause 18.5(a), to be “on annualised salaries” and provide in their contracts of employment that the annualised salary is in lieu of a wider range of award covered matters than is presently the case. Insofar as the Clerks Award is concerned, as it appears that any employee may be paid by way of an annual salary, only the second consideration is relevant.
[10] It is not clear to me that the parties have given sufficient consideration to the consequences of acceding to the ASU’s applications. Accordingly, it seems to me to be necessary that the parties have an opportunity to consider and comment upon my observations. To this end of the matter will be listed for a further hearing at 10 AM on Friday, 19 October 2012, at which time any party may make such submissions as it may be advised.
SENIOR DEPUTY PRESIDENT
1 [2010] FWAFB 969
2 (1989) 91 ALR 381; (1989) 31 IR 321
3 (2001) 111 IR 227
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