Western Australian Local Government Association
[2014] FWC 782
•31 JANUARY 2014
[2014] FWC 782 |
FAIR WORK COMMISSION |
DECISION AND REASONS FOR DECISION |
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
Western Australian Local Government Association
(AM2012/20)
Australian Municipal, Administrative, Clerical and Services Union
(AM2012/130)
COMMISSIONER CLOGHAN | PERTH, 31 JANUARY 2014 |
Review of all modern awards (other than modern enterprise and State PS Awards) after first 2 years re: clauses 15, 18, 22, 25.
[1] The Fair Work Commission (Commission) received applications from the:
● Western Australian Local Government Association (WALGA) (AM2012/20):
● Australian Municipal, Administrative, Clerical and Services Union (ASU) (AM2012/130); and
● New South Wales Local Government Clerical, Administrative, Energy, Airlines and Utilities Union (USU) (AM2012/168).
[2] The applications by WALGA and the ASU are made to vary the Local Government Industry Award 2010 (LGI Modern Award) pursuant to Fair Work (Transitional Provisions and Consequential Amendments) Act 2009, Part 2 of Schedule 5.
[3] The application by the USU is made pursuant to ss.157-160 of the Fair Work Act 2009 (FW Act) and was subsequently withdrawn.
[4] The applications were forwarded to me for determination.
[5] On 13 May 2013, I issued a Decision and Reasons for Decision ([2013] FWC 2936) and a Determination (PR536549) on variations to the LGI Modern Award in accordance with the applications in paragraph [1] above.
[6] With the agreement of WALGA and ASU, certain components of the applications were held over for a further hearing.
[7] At the hearing, WALGA was represented by Mr S Roffey, Employee Relations Service Manager and Mr A Dansie, Manager-Industrial Relations, Local Government New South Wales.
[8] The ASU was represented by Mr M Rizzo, National Industrial Officer, Victoria and Mr G Upham, Senior Industrial Officer, Western Australia.
[9] At the conclusion of the hearing further written submissions were received.
[10] While WALGA was the applicant in AM2012/20, its submissions were on behalf of Local Government Associations which included the Municipal Association of Victoria, Local Government Association of Northern Territory, Local Government Association of Tasmania, Western Australia Local Government Association, Local Government Association of South Australia, Local Government Association of Queensland and Local Government and Shires Association of New South Wales.
[11] This is my decision and reasons for decision concerning the remaining components of the applications which the parties sought to vary by consent. Those components of the application which were contested are the subject of a separate decision and reasons for decision.
[12] WALGA and the ASU have sought to vary the LGI Modern Award as follows.
Clause 15. Allowances
[13] Insert new subclause 15.4A as follows:
“15.4A Camping allowance
(a) An employee required to camp at the site of any work by direction of the employer or because no reasonable transport facilities are available to enable the employee to proceed to and from home each day will be paid a camping allowance of 115% of the standard rate per night as a camping allowance.
(b) At the end of each working week the employee shall be allowed to return to the employee’s home and in such cases all the time reasonably required for travelling to and from the employee’s home shall be treated as time of duty in addition to the time of actual working.”
[14] The proposed variation will remove uncertainty as to the entitlements of employees who are required to camp out and was a common feature of pre-reform Local Government industry awards in Australian states and territories.
Clause 18. Higher Duties
[15] Delete subclause 18.2 and insert new subclauses 18.2 and 18.3 as follows:
“18.2 Subject to subclause 18.3, higher duties will not be paid when the relieving employee is absent on leave or on a public holiday.
18.3 (a) Where an employee performs higher duties and is in receipt of a higher hourly ordinary time rate of pay for three (3) continuous months or more immediately prior to commencing a period of paid annual leave or paid personal/carer’s leave the leave shall be paid at the higher hourly ordinary time rate of pay.
(b) The amount of annual leave or personal/carer’s leave that is paid at the higher hourly ordinary time rate of pay shall be proportional to the amount of annual leave or personal/carer’s leave accrued whilst performing the higher duties work.”
[16] The proposed variation provides clarity concerning the entitlements of employees who perform higher duties immediately prior to a period of annual leave or personal/carers’ leave.
Clause 22. Meal breaks
[17] Insert new subclause 22.3 as follows:
“22.3 An employer may require an employee in the following roles or work areas to remain at their place of work during the meal break if a replacement employee is not reasonably available:
a. Childcare services
b. Recreation centres
c. Tourism services
d. Community services
Provided that where the employee is required to perform work during their meal break the employee shall have their meal break extended so that they receive an unpaid meal break of at least 30 minutes in the aggregate.”
[18] The proposed variation reflects the work practice in the Local Government industry where employees in some occupations are required to remain at their place of work during their meal break. The proposed variation does not negate the requirement in subclause 22.1 that employees must not be required to work more than five (5) hours without receiving a 30 minute meal break unless there are unforeseen circumstances.
Clause 25. Annual leave
[19] Amend subclause 25.3 as follows:
“25.3 Payment for annual leave
Employees will be paid their hourly ordinary time rate of pay during periods of annual leave for the hours so taken.”
[20] The proposed variation will remove ambiguity and correct what appears to be a drafting error. The proposed variation clarifies where an employee takes annual leave they are to be paid for hours so taken.
[21] For the above reasons, Determination PR547349 is made to vary the LGI Modern Award in the above terms.
COMMISSIONER
Appearances:
Mr S Roffey on behalf of WALGA with Mr A Dansie on behalf of Local Government NSW.
Mr M Rizzo with Mr G Uphamon behalf of the ASU.
Hearing details:
2013:
Perth
11 June.
Final written submissions:
WALGA: 18 June 2013.
ASU: 21 June 2013.
Printed by authority of the Commonwealth Government Printer
<Price code A, PR547352>
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