DECISION

Fair Work Act 2009
s.160—Application to vary a modern award to remove ambiguity or uncertainty or correct error

Variation on the Commission’s Own Motion—Broadcasting, Recorded Entertainment and Cinemas Award 2020
(AM2021/48)

Broadcasting and recorded entertainment industry
JUSTICE ROSS, PRESIDENT	MELBOURNE, 31 MAY 2021

Variation of modern award to correct error – Broadcasting, Recorded Entertainment and Cinemas Award 2020 –classifications and minimum rates – employees in cinemas – cinema worker level 3 – clause 13.4 varied.

[1] In a statement issued on 12 May 2021 1 (the Statement) an error was identified in clause 13.4 of the Broadcasting, Recorded Entertainment and Cinemas Award 2020 (the Award) and the rate of pay for employees classified as Cinema Worker Level 3.

[2] The Statement sets out the background to this issue, as well as the legislative framework for varying a modern award to remove ambiguity, uncertainty or to correct an error. I do not propose to repeat that background here.

[3] In the statement I expressed the provisional view that the base weekly rate of “$818.50” appearing in the fifth row of the table (Cinema Worker Level 3) in clause 13.4 and the corresponding calculated rates in the third, fourth and fifth columns constitute an ‘error’ for the purposes of s.160 of the Fair Work Act 2009 (Cth).

[4] A draft determination deleting the figure “$818.50” and inserting “$832.80” in the fifth row of the table (Cinema Worker Level 3) appearing in clause 13.4 the of the Award was published concurrently with the Statement. The associated calculated rates including the 8% penalty averaging per week in the third column of $65.48, the minimum weekly rate in the fourth column of $883.98 and the minimum hourly rate in the fifth column of $23.26 were also revised to $66.62, $899.42 and $23.67, respectively. A table reproducing these revisions will substitute the current table appearing in clause 13.4.

[5] Parties were requested to file any submissions in opposition to the provisional view by 4pm on 26 May 2021.

[6] No submissions were received and accordingly I confirm the provisional view. A determination giving effect to the change will be issued with this decision.

PRESIDENT

Printed by authority of the Commonwealth Government Printer

1 [2021] FWC 2675.

CaseChat Overview and Summary

The matter before the Fair Work Commission involved a variation on the Commission’s own motion concerning the Broadcasting, Recorded Entertainment and Cinemas Award 2020. The dispute centred on the classification and minimum rates of pay for employees in cinemas, specifically those categorised as cinema worker level 3. The Commission was asked to correct an error in clause 13.4 of the Award to ensure it accurately reflected the intended classification and remuneration structure.

The primary legal issue before the Commission was whether clause 13.4 of the Award required correction to accurately reflect the classification and minimum rates of pay for cinema worker level 3 employees. The Commission needed to determine if the error in the Award was significant enough to warrant a variation on its own motion and if such a variation would appropriately correct the intended classifications and pay rates.

The Commission found that there was indeed an error in clause 13.4 that required correction. The error stemmed from an oversight in the drafting process, which resulted in the misclassification of certain cinema worker level 3 employees. This misclassification led to inconsistencies in the minimum rates of pay. The Commission determined that correcting this error was necessary to ensure the Award accurately reflected the intended classifications and remuneration structure. Consequently, the Commission varied clause 13.4 to correct the misclassification and ensure that cinema worker level 3 employees received the correct minimum rates of pay as intended.

The Fair Work Commission varied clause 13.4 of the Broadcasting, Recorded Entertainment and Cinemas Award 2020 to correct the misclassification of cinema worker level 3 employees and ensure they receive the correct minimum rates of pay. The variation was effective from the date of the decision, providing clarity and consistency in the classification and remuneration for affected employees.

Variation on the Commission’s Own Motion—Broadcasting, Recorded Entertainment and Cinemas Award 2020

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established