Variation of Modern Awards on the Commission's Own Initiative -

[2023] FWC 1291

[2023] FWC 1291

FAIR WORK COMMISSION

STATEMENT

Fair Work Act 2009

s.160—Variation of modern award to remove ambiguity or uncertainty or correct error

Variation of modern awards on the Commission’s own initiative –

Australian Broadcasting Corporation Enterprise Award 2016

Electrical Power Industry Award 2020

Live Performance Award 2020

(AM2023/13)

Various industries
JUSTICE HATCHER, PRESIDENT	SYDNEY, 1 JUNE 2023

Section 160 of the Fair Work Act 2009 (Cth) – variation on the Commission’s own motion – Australian Broadcasting Corporation Enterprise Award 2016 – Electrical Power Industry Award 2020 – Live Performance Award 2020.

Introduction

1. This matter has been commenced on the Commission’s own initiative to deal with the corrections of errors and removal of uncertainties identified in the following awards:

·   Australian Broadcasting Corporation Enterprise Award 2016;[1]

·   Electrical Power Industry Award 2020;[2] and

·   Live Performance Award 2020.[3]

1. Section 160 of the Fair Work Act 2009 (Cth) (the FW Act) permits the Commission to make a determination varying a modern award to remove an ambiguity or uncertainty or to correct an error. The Commission has determined to create a new matter under s.160(2)(a) of the FW Act to remedy these issues.

Australian Broadcasting Corporation Enterprise Award 2016

1. On 13 February 2023 the Full Bench in AM2023/3 issued a Statement[4] (the February Statement) concerning errors and uncertainties in the method of adjusting wage-related allowances in certain modern enterprise and State reference public sector awards. Attachment A of the February Statement had set out the proposed variations to clauses 3.1, 63.2(b) and 70.2(a) of the Australian Broadcasting Corporation Enterprise Award 2016 (ABC Enterprise Award).

1. On 10 March 2023, the Full Bench issued a decision[5] and an award variation determination giving effect to the proposed amendments, effective 15 March 2023. Clauses 63.2(b) and 70.2(a) of the Australian Broadcasting Corporation Enterprise Award 2016 were varied to express the allowances in question as a percentage of the award’s standard rate. Additionally, clause 3 of the award was varied to specify the weekly rate for a Cast Actor in clause 59.1 as the award’s standard rate. [6]

1. It has since come to my attention that the allowance provision at clause 79 was omitted from matter AM2023/3 in error and, as such, the method of adjusting this payment remains unclear.

1. For the reasons set out in the February Statement, it is my provisional view that clause 79 be amended in similar terms to the other allowances varied under clauses 63.2(b) and 70.2(a) and that it be calculated as a percentage of the award’s standard rate.

1. It is proposed that clause 79 be varied as follows:

79—Overtime

Any rehearsal time, other than that included in the rates prescribed by clause 74, or time worked on calls additional to those set out in that clause, must be paid at the rate of $11.15 for each half hour or part thereof. This payment is adjusted in accordance with increases to wages and is 1.021% of the standard rate.

Electrical Power Industry Award 2020

1. On 25 May 2016, Senior Deputy President Hamberger in AM2014/226 published a Report to Full Bench[7] (2016 Report) containing proposed variations to the exposure draft of the Electrical Power Industry Award 2016 (the EPI Exposure Draft).

1. Items 13 and 14 of Attachment A of the 2016 Report proposed to replace the word ‘days’ with the word ‘weeks’ in the availability allowance provisions at clauses 11.2(a)(i) and 11.2(a)(ii) of the EPI Exposure Draft. The body of the EPI Exposure Draft was amended to reflect the proposed variations and published on 14 July 2017.[8] However, the corresponding rates in the summary of wage-related allowances at clause C.1.1 were not updated to reflect these changes.

1. It has come to my attention that the error above made in relation to the summary of wage-related allowances table in the EPI Exposure Draft remained unidentified and was replicated when the Electrical Power Industry Award 2020 (EPI Award) commenced operation on 25 November 2019.[9] The availability allowance provisions (renumbered as 17.2(a)(i) and 17.2(a)(ii)) are as follows:

(a)        Availability allowance

Where the employer requires an employee to be available for duty after normal working hours in accordance with an availability roster under clause 13.5 the employee will be paid an allowance as follows:

(i)        1 in 5 weeks or more rostered on availability duty—$169.47 per week; or

(ii)       1 in 4 weeks or less rostered on availability duty—$244.79 per week.

The allowances in clauses 17.2(a)(i) and 17.2(a)(ii) are payable daily (on a pro rate basis) or weekly.

1. It is my provisional view that the EPI Award 2020 should be varied to correct the error at clause C.1.1 by substituting the word ‘days’ with ‘weeks’ as follows:

Allowance	Clause	% of standard rate	$	Payable
Availability allowance—1 in 5 days weeks or more	17.2(a)(i)	18.0	169.47	per week
Availability allowance—1 in 4 days weeks or less	17.2(a)(ii)	26.0	244.79	per week

Live Performance Award 2020

1. On 6 October 2020, the Full Bench in AM2019/17 issued a decision finalising the exposure draft and consequent variations of the Live Performance Award 2020 (the LPA Award) as part of the 4 yearly review of modern awards.[10] A final determination was published on 7 October 2020 making the 2020 modern award instrument and became operative on 13 November 2020.

1. An issue has been identified concerning the weekly part-time rate for supernumeraries in clause 31.4(a), which provides as follows:

Supernumeraries engaged by the week will be paid an hourly rate of $30.84 or a weekly part-time rate of $585.90 for up to 24 hours work.

[emphasis added]

1. The equivalent provision in the Live Performance Award 2010 at clause 24.4(a) expressed the weekly part-time rate for up to 19 hours of work. This was varied to 24 hours of work at the commencement of the LPA Award. An issue arose, however, when the corresponding weekly rate was not adjusted to account for the change from 19 hours per week to 24 hours per week.

1. A conference held on 17 August 2017 indicated to the presiding member that the Media, Entertainment and Arts Alliance (MEAA) and Live Performance Australia (LPA) (the parties) were preparing a copy of the draft award.[11]

1. On 22 September 2017 the parties submitted a revised exposure draft containing their agreed positions.[12] The provision for weekly part-time supernumeraries was proposed as follows:

27.4 Weekly part-time employees (supernumeraries)

(a)    Supernumeraries engaged by the week will be paid an hourly rate of $25.02 or a weekly part-time rate of a maximum of $600.48 for up to 24 hours work.

1. The parties’ revised exposure draft amended the weekly part-time hours from 19 to 24, and accordingly, increased the part-time weekly rate to $600.48 (based on $25.02 multiplied by 24). The proposed clause was incorporated into the next iteration of the exposure draft published on 26 March 2018.[13]

1. The final exposure draft and draft variation determination for the 2020 award were published together on 29 January 2020 and were updated for the annual wage review 2018–19. The weekly part-time and hourly rates were updated to $523.40 and $27.55, respectively, taking the rates from the current Live Performance Award 2010, rather than amending the weekly rate based on the 24 hours provided in the exposure draft. Hence, the weekly part-time rate reported in both draft documents did not accord with the expanded part-time hours that supernumeraries could work up to.

1. In my view, the weekly part-time rate at clause 31.4(a) for supernumeraries represents an error which should be remedied as it does not accord with the number of part-time hours stipulated by the clause.

1. It is my provisional view that the minimum weekly part-time rate for supernumeraries presented in clause 31.4(a) of the award should be amended to reflect a 24-hour week. To accommodate this, I propose that the weekly part-time rate be varied from $585.90 to $740.20 (based on $30.84 multiplied by 24).

Next steps

1. Draft determinations giving effect to the provisional views for each award above will be published concurrently with this statement. Interested parties will have the opportunity to file submissions in response to my provisional views by 4:00pm (AEST) on Friday 23 June 2023. Submissions should be sent to [email protected].

1. In the absence of any submissions opposing my provisional views, final determinations will be issued in the same terms proposed by the draft determinations.

PRESIDENT

[1] [MA000147].

[2] [MA000088].

[3] [MA000081].

[4] [2023] FWCFB 30.

[5] [2023] FWCFB 46.

[6] PR750899.

[7] Report to the Full Bench, 25 May 2016, items 13–14 of Attachment A.

[8] Revised Exposure Draft—Electrical Power Industry Award, 14 July 2017.

[9] PR714180.

[10] [2020] FWCFB 5307.

[11] Transcript, 17 August 2017 at paras 84–86.

[12] MEAA and LPA Exposure Draft—Live Performance Award 2016, 22 September 2017.

[13] Exposure Draft—Live Performance Award 2016, 26 March 2018. The proposed clause was updated in subsequent drafts in line with the wage increase of the annual wage review. See Exposure Draft—Live Performance Award 20XX, 5 April 2018 and MEAA and LPA revised exposure draft, 27 June 2019.

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