Shop, Distributive and Allied Employees Association
[2011] FWA 6865
•30 NOVEMBER 2011
[2011] FWA 6865 |
|
DECISION |
Fair Work Act 2009
s.160 - Application to vary a modern award to remove ambiguity or uncertainty or correct error
Shop, Distributive and Allied Employees Association
(AM2011/32)
FAST FOOD INDUSTRY AWARD 2010
(ODN 2008/10) [MA000003]
Fast food industry | |
VICE PRESIDENT WATSON | SYDNEY, 30 NOVEMBER 2011 |
Application to vary the Fast Food Industry Award 2010 - clause 25, 26 - spread of ordinary hours - overtime - evening penalties - ambiguity or uncertainty or correction of error - [2010] FWAFB 379 - PR992812.
Introduction
[1] This decision relates to an application by the Shop, Distributive and Allied Employees’ Association (SDA) for the variation of the Fast Food Industry Award 2010 to clarify an alleged ambiguity concerning the payment of overtime. Directions were made for the filing of evidence and outlines of submissions in advance of a hearing scheduled for 18 August 2011.
[2] At the hearing on 18 August 2011 Ms De Martino and Ms Burnley appeared for the SDA, Mr Tindley appeared for The Australian Retailers Association (ARA), Ms Paul appeared for the Australian Industry Group (AIG) and Ms Duff represented the National Retailers Association (NRA). The Restaurant and Catering Association (RCA) and the ACT and Region Chamber of Commerce and Industry (ACTCCI) also filed written submissions.
[3] In the course of making their submissions at the hearing of the matter the parties sought a further opportunity to address certain matters arising from those submissions. Further directions were made for the filing of additional written submissions. Written submissions were subsequently filed by the SDA, RCA, AIG, NRA, and the ARA.
The Application
[4] The application seeks to vary the hours of work provisions including clause 26 of the Fast Food Industry Award 2010 to clarify the position regarding shifts of more than 11 hours and penalties for work after midnight. Clause 25.3 provides:
“25.3 Maximum hours on a day
An employee may be rostered to work up to a maximum of 11 hours on any day.”
[5] Clause 26.2 currently provides:
“26.2 Overtime and penalty rates
Hours worked in excess of the ordinary number of hours of work prescribed in clause 25.2 are to be paid at time and a half for the first two hours and double time thereafter, except on a Sunday which will be paid at the rate of double time.”
[6] The Application seeks to clarify that overtime is payable for work in excess of 11 hours per day. It is contended that the right to overtime payments is not clear from the current wording.
[7] A further change is sought in relation to clause 26.2(a)(ii) which is expressed to apply to ordinary hours worked after midnight. It states:
“(ii) A loading of 15% will apply for ordinary hours of work after midnight, and for casual employees this loading will apply in addition to their 25% casual loading.”
[8] The application seeks the removal of this clause on the basis that it is inconsistent with clause 25.2 which provides:
“25.2 Ordinary hours
(a) Ordinary hours may be worked, within the following spread of hours:
Days | Spread of hours |
Monday to Sunday | 6.00 am–midnight |
[9] In essence the SDA submits that the limitation on ordinary hours in clause 25.2 renders work after midnight to be overtime and clause 26(a)(ii) has no application because ordinary hours cannot be worked after midnight.
Payment for hours in excess of 11 per day
[10] The SDA submits that the intention of the award is that overtime be paid for hours worked in excess of the 11 hour daily maximum and the variation sought makes that clear. Its application in this regard was not initially opposed by the ARA, the AIG or the ACTCCI. The AIG subsequently altered its position following a consideration of the second aspect of the application. The application is opposed by the NRA and RCA.
[11] In my view clause 25.3 is directed to the rostering of ordinary hours of work, not the working of hours generally. It is not intended to limit work to 11 hours. To the extent that this is not clear it should be clarified by the insertion of the word “ordinary” in the clause.
[12] There could be no purpose in having a daily limitation on ordinary hours of work if there was no different treatment for hours worked in excess of 11 hours. In accordance with usual notions regarding overtime and limitations on ordinary hours, hours worked in excess of 11 per day should be regarded as overtime. To the extent that the current provisions do not reflect this situation they are ambiguous, in error or both. I will make a variation to the award to remedy this situation.
Ordinary Hours after Midnight
[13] The debate in relation to this matter centred around a conflict between the two provisions of the award set out above and a consideration of a Full Bench decision 1 in January 2010 which inserted one of those provisions. There is general acceptance that the provisions are inconsistent but no agreement as to how the conflict should be resolved. The SDA submits that the Full Bench did not intend to alter the position whereby overtime is paid for hours worked after midnight and that the Full Bench’s rejection of a claim for shift work provisions mistakenly led to the variation in question. The employers submit that the Full Bench clearly intended to apply the penalties in the Restaurant Award and this intention is reflected in clause 26.2(a)(ii) which SDA wants to delete. The employers submit that clause 25 should be amended.
[14] In my view this matter must be resolved by determining the intention of the Full Bench. The Full Bench dealt with these matters in the following terms:
“Overtime and penalty rates
[22] The NRA and AiGroup seek variations to cl.26.2–Overtime and penalty rates. Clause 26.2 is in the following terms:
“26.2 Overtime and penalty rates
Hours worked in excess of the ordinary number of hours of work prescribed in clause 25.2 are to be paid at time and a half for the first two hours and double time thereafter, except on a Sunday which will be paid at the rate of double time.
(a) Evening work Monday to Friday (excluding shiftwork)
A loading of 10% will apply for ordinary hours of work within the span of hours between 6.00 pm and midnight, and for casual employees an additional 25% of the rate on top of the casual rate.
(b) Saturday work (excluding shiftwork)
A loading of 25% will apply for ordinary hours of work within the span of hours on a Saturday, and for casual employees an additional 25% on top of the casual rate.
(c) Sunday work
A 75% loading will apply for all hours of work on a Sunday for full-time, part time and casual employees.”
[23] Since making this award the Commission has reviewed the penalty payments applying in the restaurant industry. Those penalty payments are found in the Restaurant Industry Award 2010. For fast food operations that open into the evening there is logic in adopting a similar approach to penalty payments. We have decided to vary cl.26.2(a) to provide for a 10% loading to be payable after 9.00 pm and a 15% loading to be payable after midnight. Casual employees are to receive the relevant loading in addition to the 25% casual loading.
[24] In relation to Saturday work, the NRA and AiGroup seek to vary cl.26.2(b) so as to limit the payment of Saturday penalties to full-time and part-time employees. It is a common feature of awards generally including awards in the restaurant industry that casual employees receive relevant loadings in addition to casual loadings. We do not intend grant the application.
[25] The NRA and AiGroup seek an alteration in cl.26.2(c) to bring about a reduction in the penalty payable for ordinary hours worked on a Sunday by full-time and part-time employees from 75% to 25%.
[26] We have reconsidered the level of this loading having regard to the Sunday penalty rates in relevant pre-reform awards and NAPSAs and in particular the penalties now applicable in the restaurant industry. In all the circumstances we consider that a loading of 50% for full-time and part-time employees and 75% for casuals is fair and appropriate.
Night shift
[27] The NRA and AiGroup propose the insertion of a new clause providing for work on night shift. We do not believe that a case has been made out for such a provision.”
[15] In my view the clear intention of the Full Bench is to apply the penalties in the Restaurant Industry Award 2010 to the Fast Food Industry Award 2010. The variation it made expressly reflected the wording of the operative parts of its decision in paragraph [23] above. Insofar as an ambiguity was created by this variation it arises from the failure to make a consequential variation to clause 25. In my view it is appropriate to now make that variation. The provisions will thereby be able to be read together without giving rise to ambiguity or uncertainty.
Conclusions
[16] For the above reasons I will make variations to clauses 25 and 26 to ensure that the award clearly provides an entitlement to overtime payments for hours worked in excess of 11 hours on each day and that penalty payments for work after midnight are as expressed in the Full Bench decision of January 2010. An order reflecting these conclusions is published with this decision. The variation will apply from the date of this decision.
VICE PRESIDENT WATSON
Appearances:
Ms D. De Martino and Ms S. Burnley for the SDA.
Mr N. Tindley on behalf of the Australian Retailers Association.
Ms V. Paul for the Australian Industry Group.
Ms J. Duff for the National Retail Association.
Hearing details:
2011.
Melbourne
18 August
1 [2010] FWAFB 379, PR992812.
Printed by authority of the Commonwealth Government Printer
<Price code C, MA000003, PR515342 >
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