Fair Work Act 2009
s.156 - 4 yearly review of modern awards

4 yearly review of modern awards – award stage – Exposure Drafts – Group 1C, 1D and 1E awards

CONTENTS

ABBREVIATIONS

1. Introduction

[1] This decision arises from the 4 yearly review of modern awards (the Review) and, in particular deals with sub-groups 1C, 1D and 1E of the Award stage of the Review. It should be read in conjunction with earlier decisions and statements concerning the Review, and in particular the decisions of 23 December 2014 1 (the December 2014 decision), 13 July 20152 (the July 2015 decision) and 30 September 20153 (the September 2015 decision) in which the Commission dealt with a number of general drafting and technical issues common to multiple Exposure Drafts.

[2] The issues determined in these decisions include:

(i) changes to the supersession clause 1.2 (December 2014 decision at [11])
(ii) inclusion of commencement clause (July 2015 decision at [8])
(iii) deletion of absorption clause 1.4 (September 2015 decision at [74])
(iv) reinstatement of the take home pay clause (December 2014 decision at [16])
(v) changes to NES provisions (December 2014 decision at [25] and [29])
(vi) removal of summaries of NES entitlements from clauses including various forms of leave, termination of employment, redundancy and proposed provision regarding pay slips (December 2014 decision at [35])
(vii) changes to text in facilitative provisions clause (December 2014 decision at [42])
(viii) changes to format of rates tables in National Training Wage schedule (where included) (December 2014 decision at [67])
(ix) inclusion of notes about annual leave, obligations regarding hourly rates in schedules (July 2015 decision at [94] and [63])
(x) standardisation of the use of the terms ‘minimum hourly rate’; ‘ordinary hourly rate’ and ‘all purpose allowance’ plus related definitions (July 2015 decision at [43], [35] and [91]).

[3] The December 2014 decision along with an additional decision issued in May 2015 4 dealt with alleged inconsistencies with the National Employment Standards (NES). Further decisions in relation to award flexibility (AM2014/300)5, annual leave (AM2014/47)6 and transitional provisions in relation to accident pay (AM2014/190)7 also have application to this group of awards.

2. Review of Group 1C, 1D and 1E Awards

[4] The initial conference for Group 1 awards was held on 13 May 2014 and was followed by conferences before a single member. The awards in Group 1 were further divided into five sub-groups to be dealt with in two tranches. 8 Parties were given an opportunity to make submissions on any issues relating to individual awards.

[5] The Commission published Exposure Drafts for the Group 1 awards in September and October 2014. Interested parties were given an opportunity to make written submissions on the Exposure Drafts and to reply to the submissions of others. Further conferences have been held to deal with a range of award-specific matters. Some Exposure Drafts in 1C, 1D and 1E have been re-published with amendments based on changes agreed by interested parties and accepted as appropriate by this Full Bench or to correct minor errors.

[6] A hearing was held in November 2014 dealing with a number of awards in sub-groups 1C, 1D and 1E. Additional conferences were held in relation to some of the awards in this sub-group following that hearing.

[7] Further amendments will be made to the Exposure Drafts in accordance with the decisions on general drafting and technical issues common to multiple Exposure Drafts.  9

[8] The decision of 23 December 2014 dealt with some award-specific issues in the sub-group 1A and 1B awards and this decision deals with each of the awards in Groups 1C, 1D and 1E.

[9] Substantive issues in relation to the following awards were dealt with by separate Full Benches:

• Black Coal Mining Industry Award 2010 (AM2014/53) – see [2015] FWCFB 2192



• Meat Industry Award 2010 (AM2014/78) – see [2015] FWCFB 579



• Stevedoring Industry Award 2010 (AM2014/90) – see [2015] FWCFB 1729



• Textile, Clothing, Footwear and Associated Industries Award 2010 (AM2014/91) – see [2015] FWCFB 2831



• Timber Industry Award 2010 (AM2014/92) – see [2015] FWCFB 2856



• Vehicle Manufacturing, Repair, Services and Retail Award 2010 (AM2014/93) – on-going

[10] The technical and drafting issues in these awards are dealt with in this decision.

2.1 Black Coal Mining Industry Award 2010

[11] An Exposure Draft of this award was published on 26 September 2014. At a hearing on 19 November 2014 interested parties clarified which issues in respect of the Exposure Draft had been agreed and which issues should be referred to a single member for conference. A conference was held on 11 December 2014 and a report provided to the Full Bench (the Full Bench Report). The report set out the changes to the Exposure Draft that the parties had agreed on; the issues in dispute and the substantive issues to be dealt with by other Full Benches.

[12] The agreed issues are set out at Attachment A to the Full Bench Report and reflected in the revised Exposure Draft, prepared by Ai Group, published on the Commission’s website on 15 January 2015. We propose to adopt all of the agreed changes save in relation to the change proposed to Schedule C of the Exposure Draft. In relation to Schedule C some parties had opposed the insertion of a summary of hourly rates of pay. In accordance with paragraph 62 of the July 2015 decision the summary of hourly rates will be inserted as it will assist employers and their employees understand their rights and obligations.

[13] Attachment B to the Full Bench Report sets out a number of unresolved issues, as follows:

Clause 9.2(a): whether the 30 minute paid meal break before starting overtime should be paid either at ordinary time or double time.
Clause 9.2(c): whether the words ‘of 30 minutes duration’ after ‘’further crib break’ should be added.
Clause 12.1(d) and Schedule F: should the definition of ‘rotating night shift employee be renamed ‘non-permanent night shift employee’?
Clause 15.3: whether annual leave should accrue based on completed weeks of ‘employment’ or ‘service’.
Clauses 16.3 and 26.2: whether employees should only accrue personal/carers’ leave in accordance with NES.
Clause 18.5: The appropriate payment for time worked on a public holiday.

[14] If any party wishes to pursue any of these issues, they should file a formal application to vary the award within 21 days of this decision including a draft variation determination and setting out the grounds in support of the variation proposed. Any such application will then be allocated for hearing.

[15] In addition to matters set out above the CFMEU (M & E Division) raised an issue concerning clauses 13.2 and 13.3 in the Exposure Draft. These clauses set out the appropriate award rate for working weekend work. The clauses are derived from clause 21.2 of the Black Coal Mining Industry Award 2010 (the 2010 Award). The Exposure Draft includes a heading (which is not in the 2010 Award) which may be read as implying that the rates specified do not apply to shiftworkers. The CFMEU (M & E Division) submits that ‘the current award makes no such distinction and the current and traditional application of the weekend rates is that they apply to shiftworkers as well as “other than shiftworkers”. This position was supported by the Coal Mining Industry Employer Group (CMIEG) in joint correspondence of 20 October 2014.

[16] We accept the CFMEU (M & E Division)’s submission and propose to remove the reference to ‘other than shiftworkers’ from the heading in clause 13.2.

[17] We note that clause 8.6 of the Exposure Draft deals with changes to rosters and provides, relevantly, that the employer can change an employee’s roster upon giving one weeks’ notice of any change to the employee. An issue arises as to the interaction between clause 8.6 and the model consultation term at clause 22.

[18] As we note later (see paragraphs 284-295) the model consultation term was intended to impose an additional obligation on an employer to consult an employee in circumstances where the employer proposes to change the employee’s regular roster or ordinary hours of work. Accordingly, we propose to vary clause 8.6 of the Exposure Draft as follows:

‘Changes to rosters

The employer will not change an employee’s place on a roster, except in accordance with clause 22 and where …’ (emphasis added)

[19] The above change will be incorporated into the revised Exposure Draft.

2.2 Gas Industry Award 2010

[20] An Exposure Draft was published on 23 September 2014 and on 18 November 2015 interested parties informed the Commission that they had reached agreement on a number of issues that had been raised in submissions in response to the Exposure Draft. On 13 April 2015, a conference was conducted to explore any further areas of agreement and identify any outstanding issues. The result of this conference is contained in a Report to the Full Bench published on 27 April 2015.

[21] A number of matters were resolved by agreement between the parties and these are identified at paragraph [4] of the Report to the Full Bench. We propose to adopt all of the agreed changes and they will be incorporated in a revised Exposure Draft.

[22] The table at paragraph [5] to the Report of the Full Bench sets out the issues which remain in contention. Item one in the table concerns part-time employment and it will be referred to the Casual and Part-time Employment Full Bench in AM2014/196.

Definition of ordinary hours for casuals

[23] The second of the items in contention concerns the definition of ordinary hours for casual employees. The parties agree that the matter requires clarification, but disagree about how this is to be done. The AWU submit that the appropriate wording is that expressed at clause 10.3(a) of the Mining Industry Award 2010:

“A casual employee’s ordinary hours of work are the lesser of an average of 38 hours per week or the hours required to be worked by the employer”.

[24] Ai Group submit that clause 8.1(a) of the Exposure Draft should read:

“The ordinary hours of work are an average of up to 38 hours per week”

[25] In our view the wording suggested by Ai Group achieves the objective of defining the ordinary hours for casual employees in a manner which is simple and easy to understand and we propose to adopt it.

Availability duty

[26] The third issue in contention concerns ‘Availability duty’. A definition of the term ‘availability duty’ appears in the definitions clause in the current modern award (at clause 3.1) but there is no substantive provision in the award which makes any reference to the term. The Exposure Draft removes the definition of ‘availability duty’ on the basis that there is no relevant operative provision in the award.

[27] The AWU seeks to insert into the Exposure Draft a substantive provision dealing with ‘availability duty’ based on clause 10.4 of the pre-reform Energy (Gas) Industry Award 1999 [AP780799]. The AWU submits that:

‘availability duty is an important aspect of the gas industry and the current ambiguity should be resolved by inserting operative provisions into the award.’

[28] This issue received some consideration during the award modernisation process. When the Award Modernisation Full Bench published the Exposure Draft of what became the Gas Industry Award 2010 (the 2010 Gas Award) it expressed some concerns about the draft filed by the AWU:

‘[153] We now turn to the Gas Industry Award 2010. The only proposal for an award in this industry was filed by the AWU. The AWU described it as covering the activities from the time gas enters the pipelines offshore through to downstream retail. It was not intended to cover offshore accumulation or retail which is associated with retail in the electrical power industry. 10

[154] The draft was largely based on the Energy (Gas) Industry Award 1999 11 a pre-reform award (the Energy Gas Award). We note that a number of provisions in the draft also reflect the provisions of the Gas Industry Award - State 2003, a Queensland NAPSA12 (the Queensland NAPSA). We doubt that the provisions of either award are an appropriate basis for a modern industry award for this sector.’13

[29] In a subsequent decision 14 which finalised the terms of the 2010 Gas Award the Full Bench made express reference to the ‘availability duty’ allowance:

‘[205] We have no basis to be satisfied that the AWU rates and classification structure are suitable for this industry. We do not propose to adopt them. The proposal involves a significant departure from any earlier filed. Despite concerns we have with Gas Industry Employers’ draft we have, in large part, adopted it. However, it is likely the issues we have raised will need to be again considered in any forthcoming review of this award. We have set a wage rate structure reflecting the range of classifications now to be in this award taking into account existing industry awards and rates for relevant comparable classifications in other modern awards. The classification levels do not extend to any managerial or professional employee.

[206] We have made a number of changes to the allowances clause which was in the Exposure Draft. In cl.15.1 we have deleted three allowances which related to certain installation licences held by services persons and an allowance for “contending with high pressure gas”. They only appear to be in the Queensland Gas Award and in respect of the first two allowances the current classification structure does not contain comparable classifications. We suspect, however, that such licences are required to be held and invite the parties to consider at any review of this award a variation to make clear the name of the relevant licences held within the industry and persons within the classification structure that may be required to hold them and for whom an allowance may be justified. Similarly if the high pressure gas allowance and any availability allowance are considered appropriate for this award they too may be dealt with in the same way. A first aid allowance has been added and is now cl.15.1(a).’

[30] The AWU has previously indicated that it wishes to press its claim for the insertion of a substantive provision dealing with ‘availability duty’ and it intends to lead evidence in support of its claim. Ai Group opposed the AWU’s claim and submits that it is a substantive change to the existing award. The AWU is to confirm whether it wants to pursue the claim by filing a formal application within 21 days of the date of this decision including a draft variation determination and setting out the grounds in support of the claim. If such an application is received this issue will be referred to a separately constituted Full Bench for hearing and determination.

Averaging ordinary hours

[31] The final issue in contention concerns the period over which ordinary hours are to be averaged. Clause 8.1(a) of the Exposure Draft provides that the ordinary hours of work for a full-time employee are ‘an average of 38 hours per week’. The parties expressed differing views about the time period over which ‘an average of 38 hours per week’ was to be calculated.

[32] We do not consider that it is not necessary to specify a period over which to average the 38 hours per week as this can be readily ascertained at clauses 8.3—Ordinary hours for continuous shiftworkers and 8.4—Ordinary hours for non-continuous shiftworkers.

2.3 Hydrocarbons Industry (Upstream) Award 2010

[33] An Exposure Draft was published on 2 October 2014. The interested parties have reached an agreed position for most issues arising from the Exposure Draft. On 16 April 2015 the Commission conducted a conference in an effort to resolve the outstanding issues. The result of this conference is reflected in the Report to the Full Bench of 28 April 2015.

[34] A number of matters were resolved by agreement between the parties and these are set out at issues 1-17 of the table attached to the Report to the Full Bench. We propose to adopt all of the agreed changes and they will be incorporated in a revised Exposure Draft.

[35] There are four remaining issues in contention.

Casual loading and overtime

[36] The first issue concerns whether the casual loading is restricted to ordinary hours. The AWU and AMWU contend that the casual loading is also payable on overtime hours. Ai Group contends that an overtime payment is in substitution of any other loading. This issue will be referred to the Casual Employment Full Bench in AM2014/197.

Changes to spread of hours

[37] The second issue concerns the scope of the facilitation provided by clause 8.2(b).

[38] Clause 8.2 provides as follows:

‘8.2 Employees other than shiftworkers

(a) Employees, other than shiftworkers, may be required to work up to 12 ordinary hours per day, between the hours of 6.00 am and 6.00 pm, Monday to Sunday.

(b) An employer may agree with an individual employee or a majority of affected employees to alter the spread of hours in clause 8.2(a).’

[39] The AMWU seeks to amend clause 8.2(b) by adding the following words at the end of the clause:

‘by one hour at either end. However the spread of hours cannot be altered so that there would be more than 12 ordinary hours per day.’

[40] Ai Group opposes the proposed variation.

[41] The variation proposed has two elements. The first seeks to limit the scope of the available facilitation – by limiting any agreed variation to the spread hours to ‘one hour at either end’. We are not persuaded that such a variation is necessary. The scope of the facilitation afforded by clause 8.2(b) is the same as that provided by clause 22.3(b) of the current award.

[42] The second element of the proposed variation provides that the spread of hours cannot be altered so that there would be more than 12 ordinary hours per day. This variation appears to conflate two concepts – the spread of hours and the maximum ordinary hours per day. Clause 8.2(a) provides for a spread of hours of ‘6.00 am and 6.00 pm, Monday to Sunday’ and maximum daily hours of ‘up to 12 ordinary hours per day’.

[43] The facilitative provision in clause 8.2(b) is only directed at the spread of hours, there no facility to vary maximum daily hours by agreement.

[44] Given the controversy generated by this provision in the present proceedings we think that the distinction referred to above should be made clear. We will vary clause 8.2(a) to replace the word “between” with “within” as the use of that word better captures the intent of the provision, and to insert the words ‘spread of’ as follows:

‘(a) Employees, other than shiftworkers, may be required to work up to 12 ordinary hours per day, between within the spread of hours of 6.00am and 6.00pm, Monday to Sunday.’ (emphasis added)

[45] Further, we will vary clause 8.2(b) to add the following words at the end of the paragraph:

‘provided that employees, other than shiftworkers, are not required to work more than 12 ordinary hours per day.’

Permanent night shift

[46] Clause 13.3(b) of the Exposure Draft provides as follows:

‘(b) A shiftworker or continuous shift worker must be paid 130% of the ordinary hourly rate for each ordinary hour worked on permanent night shift.’ (emphasis added).

[47] The terms ‘shiftworker’, ‘continuous shiftworker’ and ‘nightshift’ are defined in clause 13.1. But there is no definition of ‘permanent night shift’.

[48] The AWU and AMWU submit that a definition of ‘permanent night shift’ should be included in the award to clarify the entitlement to the penalty payment. Ai Group submits that the insertion of a definition of ‘permanent night shift’ is not necessary and that such a definition would most likely give rise to additional costs and obligations on employers. 15

[49] Contrary to Ai Group’s submission we are satisfied that it is necessary to include a definition of ‘permanent night shift’ to ensure that the award meets the modern awards objective. The remaining issue is the form of the definition. The AWU propose the following definition:

‘Permanent night shift means when an employee who:

(i) During a period of engagement on shiftwork, works night shift only; or
(ii) Remains on night shift for a longer period than four consecutive weeks; or
(iii) Works on a night shift which does not rotate or alternate with another shift or with day work so as to give him or her at least 1/3^rd of his or her working time off in each shift cycle.’

[50] The above definition has been adopted in the Exposure Drafts for the Asphalt Industry Award 2014 (at clause 13.1) and the Concrete Products Award 2014 (at clause 13.6(c)). (Also see paragraph [196]). We propose to include the above definition in the revised Exposure Draft. Any party who opposes this form of definition may make a submission in response to the publication of the revised Exposure Draft.

All purpose allowances

[51] Part 5 – Penalties and Overtime of the Exposure Draft provides that penalty rates (for shiftwork and for work on Saturday, Sunday and Public Holidays) and overtime payments be calculated by reference to the ‘ordinary hourly rate’. The ‘ordinary hourly rate’ includes ‘all purpose allowances’ (see clause 10.1), that is the industry allowance and, where applicable, the ‘licence allowance – electricians’ (see clause 11.2(a)).

[52] The Exposure Drafts for the Group 1 awards have included the terms ‘ordinary hourly rate of pay’ in awards that provide for one or more ‘all purpose’ allowances. This practice has been the subject of some debate in earlier proceedings. In our decision of 13 July 2015 we said:

‘We are not persuaded to depart from established practice in relation to the operation of all purpose payments and how they interact with an employee’s rate of pay. Definitions of ‘all purpose’ and ‘ordinary hourly rate of pay’ will be inserted into all affected awards based on the wording in paragraphs [35] and [91]. Any issues as to whether a particular payment is payable for all purposes, and, in particular, whether an allowance should be added to a minimum rate before calculating a penalty or loading, will be dealt with on an award-by-award basis. Ultimately the resolution of these issues will turn on the construction of the relevant award and the context in which it was made.’ 16

[53] Ai Group oppose the calculation of penalty rates and overtime payments by reference to the ‘ordinary hourly rate’. It submits that the current award provides that penalty rates and overtime payments are calculated by reference to the base rate of pay (see clauses 26.1, 26.2, 26.5, 26.6 and 26.7 of the 2010 Award) and that the change proposed in the Exposure Draft would result in increased costs for employers. 17

[54] Penalty rates and overtime payments in the current award (the Hydrocarbons Industry (Upstream) Award 2010) are calculated by reference to the ‘ordinary hourly base rate of pay’. Further, the licence allowance – electricians (clause 15.3(b)) and the industry allowance (clause 15.3(b)) are stated to be ‘all purpose’ allowances and are expressed as a percentage of the ‘standard rate’. The ‘standard rate’ is defined in clause 3 to mean ‘the minimum weekly rate for a Level 3 employee in clause 14.1’.

[55] The expression ‘base rate of pay’ is defined in clause 3 of the current award as having ‘the meaning in the NES’. Part 2-2 of the Act sets out the NES. A number of entitlements in the NES, such as paid annual leave, are expressed in terms of the employee’s ‘base rate of pay’. The expression ‘base rate of pay’ is defined in s.16 of the Act, as follows:

General meaning
(1) The base rate of pay of a national system employee is the rate of pay payable to the employee for his or her ordinary hours of work, but not including any of the following:
(a) incentive-based payments and bonuses;
(b) loadings;
(c) monetary allowances;
(d) overtime or penalty rates;
(e) any other separately identifiable amounts.

[56] The expression ‘ordinary hourly base rate of pay’ is not defined in the current award but, consistent with the July 2015 decision the expression is to be interpreted to mean the ordinary hourly rate of pay derived from the employee’s minimum weekly rate plus applicable all purpose allowances. Hence, contrary to Ai Group’s submission, we are not persuaded that the approach taken in the Exposure Draft is a departure from the current award.

Calculation of casual loading

[57] The final issue in contention concerns the calculation of the casual loading. Clause 6.4(c)(i) of the Exposure Draft provides as follows:

‘(i) For each ordinary hour worked, a casual employee must be paid no less than:

• the ordinary hourly rate, and



• a loading of 25% of the ordinary hourly rate,




for the classification in which they are employed.’

[58] As mentioned previously the ‘ordinary hourly rate’ includes ‘all purpose allowances’. One of the issues raised in the proceedings which led to the July 2015 decision 18 concerned the calculation of casual loadings. In that decision we expressed the provisional view that a consistent rule should be adopted across all awards – namely that the casual loading be calculated as 25% of the minimum rate (not the ordinary hourly rate), with any all purpose allowance being added after that.19 Parties were given an opportunity to make further written submissions in relation to whether the casual loading should be applied to any all purpose allowances. This issue was determined in the September 2015 decision20 in which we said:

‘109] The concern which underlay the provisional decision was whether it was appropriate for certain allowances currently expressed as all purpose allowances to be paid at an increased level for casual employees by reason of the application of the casual loading. Ultimately however we have concluded that to deal with this concern in the manner proposed by the provisional decision is too broad-brush an approach and involves conducting the analysis from the wrong starting point. We consider that the preferable approach is to permit reconsideration, on an award-by-award basis during the course of the 4-yearly review, as to whether any existing allowance should retain its “all purpose” designation or should be payable on some different basis.

[110] The general approach will remain as expressed in the Exposure Drafts, namely that the casual loading will be expressed as 25% of the ordinary hourly rate in the case of awards which contain any all purpose allowances, and will be expressed as 25% of the minimum hourly rate in awards which do not contain any such allowances.’ 21

[59] No party has contended that the all purpose character of the industry allowance or the licence allowance – electricians in the current award, should be revisited. Accordingly, the casual loading will be based on the ordinary hourly rate (which will include the applicable all purpose allowances).

2.4 Manufacturing and Associated Industries and Occupations Award 2010

[60] An Exposure Draft for this award was published in September 2014 and was republished on 16 December 2014 to reflect a number of proposed changes to the Exposure Draft as agreed by the interested parties to that award. A further Exposure Draft was published on 19 February 2015 to incorporate further agreed changes. A table reflecting the status of all changes sought to the Exposure Draft including matters already agreed between the parties and reflected in the most recent Exposure Draft is on the Commission website.

[61] We have adopted all of the changes made to the Exposure Draft up to and including the draft published on 19 February 2015. We do not intend to repeat all of those matters here.

[62] This decision deals with matters outstanding after 19 February 2015.

[63] A number of further minor technical amendments to the Exposure Draft have been agreed between the parties. These shall be incorporated into the award.

Coverage

[64] The parties have sought the inclusion of ‘cork and cork products’ in clause 3—Coverage of the Exposure Draft. This is supported by both unions and employer groups. There is no opposition to its inclusion. No other changes will be required to the award. We agree to its inclusion. It will be added to clause 3.9.

Ordinary hours of work and rostering

[65] The parties have proposed the inclusion of an additional provision in clause 13.1 that indicate that facilitative provisions operate in conjunction with clauses 13.2 to 13.5.

[66] The parties have also proposed that a number of additional paragraphs be included in clauses 13.2, 13.3 and 13.4 which specify that ordinary hours for day and shiftworkers will not exceed eight hours per day or per shift unless otherwise agreed in accordance with the award. This is a new provision for this award. The number of ordinary hours per day has not previously been included in the award. We consider that these changes will make the award simple to read and easy to understand.

[67] We shall therefore include the following (with associated re-numbering of clauses):

13.1(b) Facilitative provisions in clauses 13.2 to 13.5 operate in conjunction with clause 5.3.

13.2 Ordinary hours of work—day workers

(b) The ordinary hours for day workers will not exceed 8 per day unless otherwise agreed in accordance with clause 13.5.

13.3 Ordinary hours of work—continuous shiftworkers

(c) The ordinary hours for continuous shiftworkers will not exceed 8 per shift unless otherwise agreed in accordance with clause 13.5.

13.4 Ordinary hours of work—non-continuous shiftworkers

(a) Subject to clause 13.4(c) the ordinary hours of work for non-continuous shiftworkers are an average of 38 per week and must not exceed 152 hours in 28 consecutive days.

(b) The ordinary hours for non-continuous shiftworkers will not exceed 8 per shift unless otherwise agreed in accordance with clause 13.5.

[68] A number of other minor technical amendments in cross referencing which flow from these changes shall also be made.

[69] In conjunction with this, clause 29.2(b) which deals with penalty rates for shiftworkers will be amended by including the words ‘In conjunction with clause 5.3’ at the beginning of paragraph (b).

Meal breaks

[70] The parties have agreed that clause 14.1 of the Exposure Draft should specify that an employee is not required to work more than five hours ‘without an unpaid meal break of a minimum of 20 minutes’ except in circumstances specified in the award. This award has not otherwise specified the minimum period of the unpaid meal break. We agree with this amendment.

[71] Clause 14.1 will be amended to read:

14.1 Meal breaks

An employee must not be required to work for more than five hours without an unpaid meal break of a minimum for 20 minutes except in the following circumstances:…

[72] Clause 14.2 which deals with paid meal breaks for continuous shiftworkers shall also be amended for consistency to include the word ‘paid’ before ‘20 minute’.

Minimum wages

[73] The AMWU submits that the text at clause 16.1(a) of the Exposure Draft may be misleading. They propose that the clause in the Exposure Draft be amended to read:

16.1 Adult employee minimum wages

(a) An adult employee, other than one specified in clause 16.1(d), within a level specified in the following table will be paid not less than the rate per week assigned to the appropriate classification, as defined in Schedule A —Classification Structure and Definitions, in which the employee is working:

…

(b) The rates in clause 16.1(a) prescribe minimum classification rates only. The payment of additional allowances may be required by other clauses of this award in respect of both weekly and hourly payments.

with the remaining paragraphs re-numbered accordingly.

[74] These changes are supported by the unions with an interest in the award.

[75] Business SA have proposed that an additional sentence be included in the text of the Exposure Draft at clause 16.1(a) directing the reader’s attention to Schedule A for definitions of the classifications referred to in the wages table. The AMWU proposal would obviate the need for this amendment.

[76] We have considered the change put forward by the AMWU and consider that the proposal retains the appropriate reference to the classification structure while clearly indicating to the reader of the award that there other payments in addition to those in the clause that may be applicable. With a minor amendment to paragraph (b) we have adopted the AMWU proposal in respect of clause 16.1(a). Paragraph 16.1(b) will read:

(b) The rates in clause 16.1(a) prescribe minimum classification rates only. Employees may also be entitled to allowances, loadings or penalties under other clauses of this award.

[77] Having adopted this proposal, the Business SA proposed change is no longer necessary.

Payment for annual leave

[78] The parties have agreed that clause 31.3(c) of the Exposure Draft should be amended to remove a potential anomaly that might allow for payment of shift loadings and the annual leave loading for periods of annual leave. We agree with the proposal to remove any potential anomaly. The clause will be amended to read:

(c) Subject to clause 31.4, the employee is not entitled to payments in respect of overtime, shift loading, weekend penalty rates, special rates or any other payment which might have been payable to the employee as a reimbursement for expenses incurred.

Schedule B—Summary of rates of pay

[79] A number of parties have made submissions in relation to ‘all purpose rate’ and the expression of rates of pay and were heard on the matter on 24 March 2015 for the Group 1A and 1B awards. The parties anticipate that any decision of the Commission on those matters may influence the final position they may take with respect to wording, definitions etc to be included in this Exposure Draft. These matters were considered in the September 2015 decision. The Exposure Draft will be updated to reflect that decision.

[80] The parties have had some preliminary discussions on how the rates of pay in the Exposure Draft (Schedule B) could be expressed to ensure the expression of those rates makes the award simple to read and easy to understand. 22

[81] We are satisfied that the form of the amended Schedule B proposed by the parties will result in provisions of the award being simple to read and easy to understand. With some minor amendments we have adopted the proposal put forward. It will be included in the Exposure Draft issued as a result of this decision.

[82] The amended Schedule B overcomes some inconsistency in the table headings identified in the Exposure Draft.

Schedule C—Monetary allowances

[83] Two allowances have inadvertently been omitted from Schedule C. The Schedule will be amended to include the ‘Supervisor/Trainer/Co-ordinator—Technical allowance’ in the table at C.1.1 and the ‘Float glass furnace repair allowance’ in the table at C.1.2.

Schedule H—Definitions

[84] The AMWU seeks the removal of ‘irregular casual’ from the definitions in Schedule H of the Exposure Draft as this is not a term used in the award. We agree. The definition will be removed from the Exposure Draft. If the phrase ‘irregular casual’ is included in the casual conversion clause that is ultimately included in the award as a result of the consideration by the Casual and Part-time Employment Full Bench, the inclusion of the definition in this Award should be revisited.

[85] The AMWU submits that a definition of “all purpose” should be included in the Exposure Draft. This matter was addressed in the July 2015 decision and the Exposure Draft will be amended accordingly.

Rounding rules

[86] Business SA seek the inclusion of rounding rules to be included in the award. It is not our intention to include such rules in the published award. This is a matter that is more properly dealt with in an annotated version of the award.

Casual loading and overtime

[87] Clause 6.4(b)(ii) of the Exposure Draft provides that the casual loading ‘constitutes part of the casual employee’s all purpose rate’. Ai Group submits that the operation of clause 30.1(d) in relation to the hourly rate for calculating overtime means that a casual employee is not entitled to the causal loading when calculating overtime payments. The unions do not agree.

[88] The Ai Group submissions have been effectively dealt with in the September 2015 decision. There is no reason to re-visit that decision. The ordinary hourly rate for casual employees in this award includes the casual loading which is paid for all purposes. If the Ai Group wish to proceed with what would appear to be a substantive change to the award they should make a separate application to do so.

[89] The unions seek to include additional wording in the casuals clause and overtime clause to remove any doubt as to the payment of the casual loading for all purposes, to clarify that the terms of the award and NES apply to casual employees except where otherwise provided and that casual employees are to be paid overtime based on their ordinary hourly rate which includes the casual loading. This change is not supported by Ai Group.

[90] We see no need to add to the clause a statement that the casual loading is paid for all purposes. It is already included in clause 6.4(b)(ii) and is properly reflected in the definitions and language of the Exposure Draft.

[91] We also see no need to specify that the provisions of the award and the NES apply to casual employees unless otherwise stated. It is adds nothing to the award.

Inclusion of examples in the award

[92] The AMWU have proposed some examples for inclusion in this award in relation to casual loadings and overtime for casual employees. Whilst there is no agreement to the examples, this appears to be based on the disagreement of what the clauses relevant to the example mean.

[93] In the December 2014 decision the Full Bench said:

[63] In our view the inclusion of relevant and accurate examples will make modern awards easier to understand and for that reason will be included where appropriate.

[94] The Full Bench believes that the inclusion of examples can make an award simple to read and easier to understand. The parties should continue to discuss the inclusion of relevant examples in this award. The inclusion of examples will be further considered by the Full Bench prior to the finalisation of the award on advice from the parties.

Definition of ordinary hourly rate and ordinary hours

[95] The definition of the ordinary hourly rate included is included in Schedule H of the Exposure Draft. It says:

ordinary hourly rate means the hourly rate for the employee's classification specified in clause 16—Minimum wages, plus any allowances specified as being included in the employee's ordinary hourly rate.

[96] The hourly rate at clause 16 does not include any loadings or penalties.

[97] Various clauses in the award provide for the payment of penalties for the working of ordinary hours. For example clause 29 of the award provides that day workers can, by agreement, work ordinary hours on a weekend. In such circumstances they are entitled to be paid at 150% of the ordinary hourly rate.

29.1 Penalty rates for day workers

(a) Weekend work

Where agreement is reached in accordance with clause 13.2(b):

(i) The rate to be paid to a day worker for ordinary time worked between midnight on Friday and midnight on Saturday will be 150% of the ordinary hourly rate.

(ii) The rate to be paid to a day worker for ordinary time worked between midnight on Saturday and midnight on Sunday will be 200% of the ordinary hourly rate.

[98] Similarly a shift worker is paid at 115% (or higher) of the ordinary hourly rate for ordinary hours worked on shift (see clause 29.2).

[99] Clause 14.5 provides for payment when working through a meal break:

14.5 Working through meal breaks

(a) Subject to clause 14.1, an employee must work during meal breaks at the ordinary hourly rate whenever instructed to do so for the purpose of making good any breakdown of plant or for routine maintenance of plant which can only be done while the plant is idle.

[emphasis added]

[100] The effect of clause 14.5 in conjunction with the definition of “ordinary hourly rate” means that an employee who receives a loading or penalty for ordinary hours of work (e.g. 150% for a day worker working ordinary hours on a Saturday) will receive a lesser amount when working through a meal break as they are only entitled to the ordinary hourly rate during such a period.

[101] The wording of the equivalent clauses in the Manufacturing and Associated Industries and Occupations Award 2010 indicate that an employee is required to be paid the same rate when working through a meal break that they would otherwise receive for working ordinary hours.

[102] We have identified similar problems with the use of the term “ordinary hourly rate” in respect of clause 30.10(c) which provides for a paid meal break at the employee’s “ordinary hourly rate”, clause 30.13 which provides for a stand by payment at the employee’s “ordinary hourly rate”, clause 27.4(e) which provides for payment of travelling time at the employee’s “ordinary hourly rate” and in clause 15 ‘ship trials’.

[103] The AMWU have submitted that this problem can be overcome by amending the definition “ordinary hourly rate”. We do not agree with this course of action. Rather we propose to insert a definition of ‘applicable rate of pay’ in the award. The definition we propose is:

Applicable rate of pay means the ordinary hourly rate plus penalties and relevant loadings.

[104] This expression will be used in the relevant clauses to indicate that an employee should be paid for relevant periods in the specified clause at the rate they would otherwise have received for working ordinary hours at that time.

[105] ‘Ordinary hourly rate’ will be replaced with ‘applicable rate of pay’ in each of the following clauses in the Exposure Draft:

Clause 39.3 – Transfer to lower paid duties

Clause 27.4(e)(i) – Travelling time payment

Clause 23 – Extra times not cumulative

Clause 14.1(b) – Meal breaks

Clause 14.5(a) & (b) – Working through meal breaks

Clause 15 – Ship trials

Clause 30.13 – Standing by

Clause 30.10 – Rest break

Clause 34.5 – Rostered day off falling on public holiday

[106] The parties are asked to consider the proposed changes including if there are clauses incorrectly identified as requiring the change or not identified that do require the amendment. Any submissions should be made in accordance with the directions in Part 4—Next Steps.

Electrical Licence Allowance

[107] The CEPU seek the inclusion of an electrical licence allowance in the award. During a conference in relation to Group 3C awards it was acknowledged that this was a substantive issue in respect of this award. The CEPU have a similar claim in respect to the Electrical Power Industry Award. This matter has been referred to a separately constituted Full Bench in AM2015/9.

Other matters

[108] Matters associated with annual leave have been dealt with by the Annual Leave Full Bench (AM2014/47). Matters associated with casual and part-time employment including minimum engagement period for part-time employees and the exclusion of casual employees from the rest period after overtime provisions will be referred to the Casual and Part-time Employment Full Bench (AM2014/196 and 197). The absorption clause has been dealt with in the September 2015 decision.

[109] There are a number of other outstanding substantive amendments proposed to this award. These relate to the timing of payment on termination and the payment of training costs when training is undertaken in connection with a training contract. The parties are asked to confirm the outstanding issues within 21 days of the date of this decision. These matters will be referred to Commissioner Bissett for further conference and hearing, if necessary, and report to the Full Bench..

2.5 Marine Tourism and Charter Vessels Award 2010 and Professional Diving Industry (Recreational) Award 2010

[110] As indicated in the Guide to Award Stage 23 , during the Review the Commission is looking for opportunities to reduce the number of awards applying within an enterprise by merging awards with a degree of commonality within their provisions. Accordingly, the Marine Tourism and Charter Vessels Award 2010 and Professional Diving Industry (Recreational) Award 2010 were amalgamated into a single Exposure Draft and published on 7 October 2014.

[111] The majority of interested parties do not support the amalgamation of the two awards. The AWU expressed no preference.

[112] The Australian Federation of Employers and Industries (AFEI) and the Association of Marine Park Tourism Operators (AMPTO) opposed the amalgamation of the two awards and submitted that the amalgamation demonstrates that in many respects the two awards are different and that the only commonality between the two awards was in respect of the model clauses. 24 AFEI and AMPTO submitted drafts of the awards as separate awards.

[113] Given the absence of any support for the amalgamation of these awards we do not propose to persist with the idea.

[114] The Commission conducted a conference between the relevant parties on 15 April 2015. A Report to the Full Bench summarised the issues concerning the Exposure Draft.

[115] The major area of disagreement in the Exposure Draft concerned the rates to be paid for weekend charter work. This issue is no longer pursued by the MUA as part of the Review. The MUA has indicated that it will pursue the matter outside of the review process.

[116] The Commission published two separate Exposure Drafts incorporating the changes already agreed between the parties on 24 July 2015. The new Exposure Draft awards adopt changes in accordance with the Full Bench decisions of 23 December 2014, and 10 July 2015 as well the agreed matters as set out in the Report to the Full Bench of 24 April 2015. As these awards have not previously been issued in the de-merged form, the parties will be given another opportunity to make submissions in respect of the Exposure Drafts in accordance with Part 4—Next Steps.

2.6 Maritime Offshore Oil and Gas Award 2010

[117] An Exposure Draft of this award was published on 23 September 2014. A hearing was conducted on 18 November 2014 and a conference was convened by the Commission on 20 April 2015, at which substantial agreement was reached between the parties. The agreed outcomes from this conference are set out in the table attached to the Commissioner’s Report to the Full Bench of 28 April 2015 (see issues 1-14).

[118] The agreed issues will be adopted and reflected in the revised Exposure Draft.

[119] The two remaining outstanding issues concern variations sought by AIMPE.

Classifications – First and Second Engineer

[120] The first variation seeks to amend the classification ‘Second Engineer’ by deleting the reference to ‘Second Engineer’ and inserting ‘First Engineer’ instead. It is also proposed that the reference to ‘Third Engineer’ be replaced by ‘Second Engineer’. AMMA does not oppose the change sought.

[121] The Australian Maritime Safety Authority’s Marine Orders M072 (Engineer Officers) 2014 states that in the Australian maritime industry the engineer who performs the functions of a Second Engineer is generally referred to as the First Engineer. 25

[122] We will make the change proposed by AIMPE on the basis that it reflects industry practice, it is not opposed by any other interested party and it will not result in any increase in wage costs.

Classification definitions

[123] The second variation proposed by AIMPE is to delete the reference to ‘qualifications’ in clause 9.2. The clause provides as follows:

‘The training, qualifications, roles and responsibilities of the classifications of employees included in the tables in clause 9.1 – Minimum wages are set out in the Marine Orders 70, 71, 72 and 73 made under the Navigation Act 2012 (Cth) and other relevant State Flag requirements.’

[124] In correspondence commenting on the Exposure Draft AIMPE advanced the following submission in support of the change proposed:

‘… we do not see as feasible the inclusion of qualifications aligned to a rank/classification in the Award. That this is so is a function of variable qualifications in a rank dependent upon the rating or break horsepower of a vessel’s engines.

To illustrate, a smaller BHP may entitle a holder of a Class III Certificate of Competency to sail as a Chief Engineer. Conversely at the other end of the spectrum a vessel with a much larger BHP may require a Class I Certificate of Competency.

Hence our position that qualifications not be incorporated.’ 26

[125] We note that clause 9.2 of the Exposure Draft is in the same terms as clause 13.2 of the current award (save that the reference to the Marine Orders in the Navigation Act 1912 (Cth) has been updated).

[126] No other party supported the change sought and on the limited material before us we are not prepared to make the change proposed by AIMPE.

2.7 Meat Industry Award 2010

[127] An Exposure Draft for this award was published on 2 October 2014. Written submissions were received from interested parties and a conference was held on 10 December 2014. A number of proposed changes to the Exposure Draft received the support of those parties present at the conference. The agreed changes are summarised at Attachment A to the report to the Full Bench dated 18 December 2014.

[128] We propose to make all the changes that had the general support of the parties at the conference before SDP Hamberger, as set out in Attachment A to the report to the Full Bench (and reflected in a revised Exposure Draft prepared by the Australian Meat Industry Council and published on the Commission’s website on 29 January 2015). One issue remains outstanding.

Casual employees – payment on termination

[129] The parties at the conference did not agree with whether clause 6.8(g) of the Exposure Draft should be deleted. The clause reads as follows:

‘A casual employee who terminates their employment prior to the end of the their ordinary working hours on any day or shift will not be entitled to payment in respect of any time actually worked on that day or shift.’

[130] We note that this clause appears in the current award (as clause 15.8). It concerns a casual employee who terminates employment (‘walks off’) during the course of a day or shift prior to completion of the ordinary working day. In such circumstances the employee is not entitled to payment for the day or shift. This clause appeared at clause 8.9.2 in pre-reform award Federal Meat Industry (Processing) Award 2000 [AP781451CRV]. The AWU has submitted that the clause is inconsistent with s.323(1)(a) of the Act.

[131] In our view this clause is inconsistent with s.151 and s.326(1) of the Act, which provide, in effect, that a modern award is not to contain a term that permits, or has the effect of permitting, an employer to deduct an amount from an amount that is payable to an employee in relation to the performance of work.

[132] Accordingly, we will to delete clause 6.8 (g) from the revised Exposure Draft.

[133] A separate Full Bench has dealt with a number of other issues concerning the Meat Industry Award 2010, including payment for work on public holidays, transferring employees to casual employment and the calculation of overtime and shift allowances for short term shifts in meat processing establishments. That Full Bench decision was issued on 3 March 2015 27 and the award was varied accordingly, with changes coming into effect from 30 March 2015.

2.8 Mining Industry Award 2010

[134] An Exposure Draft for this award was published on 29 September 2014. Written submissions from interested parties concerning this Exposure Draft were subsequently received. A conference was held on 11 December 2014 and a report provided to the Full Bench on 23 December 2014.

[135] We propose to make most of the changes that had the general support of the parties at the conference before SDP Hamberger, as set out in Attachment A to the report to the Full Bench.

[136] While the Full Bench has sought input from the parties on the Exposure Drafts, it is ultimately for the Commission to decide on the wording of the modern awards going forward. Some of the changes proposed by the Commission in the Review process have been opposed by the parties but they have been made with a view to creating a more accessible and consistent set of awards which will be easy for all employers and employees to use.

[137] While the parties did not agree that definitions of ‘permanent night shift’ or ‘broken shift’ should be included in the award, as the award makes payment based on these concepts it is important that there is certainly about when such provisions apply. In the Exposure Draft we proposed the following definition of permanent night shift which is based on clause 15.14 of the AWU Mining Industry (Iron Ore Contracting) (WA) Award 2003 [AP823097]:

‘permanent shift means a period of shiftwork where an employee works afternoon shift only or night shift only; remains on afternoon or night shift for longer than four consecutive weeks; or works on afternoon or night shift that does not rotate or alternate with another shift or with day work so as to give that employee at least one third of working time off the afternoon or night shift in each shift cycle’

[138] At the conference the parties also identified a number of issues where there was no agreement which were summarised in Attachment B to the Report to the Full Bench. The parties emphasised that they wished to be heard in relation to these issues however as many are of a drafting or technical nature we will deal with them in this decision.

[139] In the Exposure Draft the Commission posed the question to the parties as to whether there is any requirement to include a clause in relation to Probation given the current legislative provisions. While Ai Group did not consider there was any inconsistency with the Act in the retention of such a clause and that “Probationary periods remain an important and relevant management tool” no party provide strong grounds for its retention. We express a provisional view that the provision will be deleted.

[140] In the Annualised salaries clause in the Exposure Draft, clause 10.1 posed a question as to whether the reference to ‘annual leave’ being incorporated in an annualised salary as per the current award at clause 17.1(a) should instead be to ‘annual leave loading’. The union parties supported the change to ‘annual leave loading’ while Ai Group submitted that the current reference to ‘annual leave’ should be retained. Consistent with the Commission’s decision in Re Canavan Building Pty Ltd 28 we express a provisional view that the reference should be changed to ‘annual leave loading’.

[141] The issues in relation to the use of the terms ‘ordinary rate of pay’ and ‘all purpose allowance’ were dealt with in our July 2015 decision. The Exposure Draft reflects the outcome of that decision in relation to the calculation of penalty rates and overtime in that the all purpose allowance is added before the loading is applied.

[142] We express a provisional view that the rail allowance should be amended to be calculated as “30% of the minimum rate of pay” rather than of the “ordinary rate of pay”. This reflects the intent of the Full Bench during the Part 10A award modernisation process when the words “specified in this award” were inserted after the consultation process 29 to show that the 30% is applied to the rates in published clause 13.1 of the current award.

[143] The provisional views expressed in paragraphs [138] to [142] will be reflected in an updated Exposure Draft. Parties will be given an opportunity to comment on the draft in accordance with Part 4—Next steps.

[144] We will refer the issue in relation to the rates in Schedule B.2.3 as to whether the casual loading should be paid on overtime to the Casual and Part-time Employment Full Bench in AM2014/197.

2.9 Oil Refining and Manufacturing Award 2010

[145] An Exposure Draft for this award was published on 29 September 2014. Written submissions from interested parties in response to the Exposure Draft were subsequently received. There is broad agreement in relation to a number of changes to the Exposure Draft (reflected in Ai Group’s summary of submissions, published on the award review website on 25 November 2014) and we propose to adopt them.

[146] All outstanding issues have been addressed in our December 2014 and July 2015 decisions.

2.10 Pharmaceutical Industry Award 2010

[147] An Exposure Draft of this award was published on 23 September 2014. In the hearing on 17 November 2014, some parties indicated there were a number of issues raised in submissions that were no longer being pressed. A conference of interested parties was convened by the Commission on 28 November 2014 and a revised Exposure Draft published on 8 December 2014. The revised Exposure Draft incorporated a number of technical amendments that were discussed and agreed to at the 28 November conference. Parties were provided a further opportunity to comment on the revised Exposure Draft.

[148] The majority of issues in relation to this award were able to be resolved by consent and are reflected in the amended Exposure Draft published on 8 December 2014. The issues that were resolved by consent and reflected in the amended Exposure Draft are as follows:

• Clause 8.2—Ordinary hours—day workers: clause 8.2(d) was deleted;



• Clause 9.1—Unpaid meal breaks: clause 9.1(c) was amended to reflect the wording in the current award;



• Clause 10—Minimum wages: clause 10.1(a) was re-inserted from the current award;



• Clause 10.3—Supported wage system: words ‘because of the effects of a disability’ were deleted;



• Clause 11.2—Wage related allowances: clause 11.2(b) was amended to insert the word ‘while’;



• Clause 11.2—Wage related allowances: clause 11.2(c) was amended to insert the word ‘while’;



• Clause 11.3—Expense related allowances: clause 11.3(b) amended to clarify intended operation of clause 11.3(b)(i);



• Clause 15—Annual leave: the wording in clause 15.2(a) was replaced, for clarity;



• Clause 15—Annual leave: a typographical error in clause 15.3(b) was deleted;



• Clause 15—Annual leave: clause 15.3(e)(ii) was amended to remain consistent with the current award;



• Clause 20.2—Notice of termination by an employee was amended to remain consistent with other awards;

[149] A number of issues relating to part-time employment and casual employment were raised as part of the review of this award and these issues have been referred to the Full Bench that has been constituted to deal with part-time employment and casual employment.

[150] As a result of the 28 November conference, 30 the revised Exposure Draft now proposes to delete clause 8.2(d). Clause 8.2(d) provided:

‘The ordinary hours of work for a part-time or casual employee will be in accordance with clause 6—Types of employment’

[151] Subsequent to the conference, Ai Group have submitted that they support the proposed deletion of the words ‘or casual employee’ in clause 8.2(d) of the Exposure Draft only rather than the clause being deleted in its entirety. They contend that the clause should otherwise be retained but amended to clarify that the ordinary hours of work for part-time employees are the hours the employee is engaged to work in accordance with clause 6.3. This would then make the provision consistent with the approach adopted in clause 14.1(b) and also meets the requirements of s.147 of the Fair Work Act 2009. 31

[152] We propose to accept Ai Group’s proposal. The former clause 8.2(d) will be reinserted in the Exposure Draft with the deletion of the words ‘or casual’. The amendment is made because clause 6 deals with the ordinary hours of part-time employees (at clause 6.3) but not casual employees.

[153] There are 4 issues that remain in dispute and require determination.

Hours of work

[154] In relation to ‘hours of work’, clause 8.2(c) of the Exposure Draft provides as follows:

‘Where an employer and the majority of employees in the affected plant, work section or sections agree, the spread of hours may be altered by up to one hour at either end of the spread.’

[155] The wording of clause 8.2(c) of the Exposure Draft is taken from clause 23.2(b) of the current award, which states:

‘...The spread of hours may be altered by up to one hour at either end of the spread by agreement between the employer and the majority of employees in the plant, work section or sections concerned.’

[156] The AMWU submitted that clause 8.2(c) is ambiguous. They contend that the word ‘either’ could be interpreted as allowing the spread of hours to be altered by up to one hour at only one end of the span, or one hour at both ends of the span. They note that the spread of hours’ provision was arbitrated by Senior Deputy President Marsh during the Award Simplification proceedings and that the intention was not to provide for a longer span of ordinary hours but to provide for flexibility for when span would start and finish. 32

[157] The AMWU propose to insert the words ‘subject to maintaining a 9.5 hours spread’ into clause 8.2(c) as follows:

“Where the employer and the majority of employees in the affected plant, work section or sections agree, subject to maintaining a 9.5 hours spread, the spread of hours may be altered by up to one hour at either end of the spread.’

[158] Ai Group are opposed to this variation and submit it amounts to a substantive change. 33 They stated at the conference on 28 November 2014 that this issue would arise in many awards though not all parties will necessarily take issue with it.

[159] Given Ai Group’s submission the determination of this issue may have implications for other awards. Accordingly we do not propose to determine this issue at this time. The issue will be reconsidered at the conclusion of the Award stage of the Review, together with any other award provisions where a similar issue has arisen.

Higher duties allowance

[160] The AWU submitted that the reference in the higher duties clause (clause 20 of the existing award) to a ‘full-time employee’ should refer to an ‘employee’ so part-time and casual employees are not excluded from the operation of the higher duties clause. 34 The current award provides as follows:

‘A full-time employee engaged on duties carrying a higher pay rate than that for their ordinary classification must be paid the higher pay rate as follows:

Period on higher duties Period of payment at higher pay rate

Up to four hours per day or shift Four hours

Over four hours per day or shift A full day or shift

Over 20 hours in a week A full week’

[161] The Exposure Draft provides for the payment at a higher wage rate while on higher duties in the same terms 35 as the current award.

[162] The AWU contend that the term ‘full-time employees’ is discriminatory towards women who are more likely to perform part-time or casual work. They note that pre-reform and NAPSA Instruments contained generally applying higher duties provisions. 36

[163] AWU submitted that the draft award prepared by the NUW contained a generally applying mixed functions provision at clause 19 and that this draft award was relied upon by the AIRC in preparing the Exposure Draft for the initial modern awards. 37

[164] Australian Business Industrial (ABI) did not oppose the claim.

[165] Ai Group opposes the proposal contending that the extension of the clause sought by AWU is incongruous with part-time and casual employment under the award and that a minimum entitlement to four hours of pay at a higher rate in circumstances where a part-time or casual employee may be been engaged for a shift of three hours or less is both unfair and anomalous. They submit that the meaning of ‘a full day or shift’ and ‘a full week’ in the context of part-time and casual employment is unclear.

[166] Ai Group argue that if the union’s claim is granted, it would result in an increase in employment costs which would negatively impact on business and employment growth. Ai Group contend that, to the extent that expanding the clause would deter employers from requiring part-time and casual employees to undertake higher duties, the variation cannot be reconciled with the need to promote flexible modern work practices and the efficient and productive performance of work. Ai Group refute AWU’s claim that the clause is discriminatory, as part-time and casual employees may be of either gender. 38

[167] Ai Group note that the two federal awards operating in the industry prior to the Part 10A Award Modernisation process contained a clause in virtually identical terms to that which is found in the current award. 39 They submitted that AWU’s reference to the AWU Drug and Pharmaceutical Industry Award 200040 ignores that the entitlement in that award was expressed in materially different terms, being that an employee was entitled to the higher rate for time worked compared with the requirement for a minimum payment at the higher rate.

[168] At the 28 November 2014 conference it was decided that further discussion would occur between the AWU and Ai Group in relation to this issue. It was noted at the conference that the parties should envisage a process to be adopted for having this matter heard and determined. 41 The matter remains unresolved. The AWU filed a further submission on 7 April 2015 and Ai Group filed a reply submission on 24 April 2015.

[169] Ai Group submit that the change would increase costs and claim that the minimum qualifying time for higher duties which is four hours, would conflict with the minimum engagement for part-time employees of three hours. (The award does not provide a minimum engagement for casual employment.)

[170] An entitlement to higher duties should apply to all employees carrying out duties in a higher classification. We see no reason why as a matter of industrial merit, this entitlement should be limited to full-time employees.

[171] The concerns of Ai Group regarding the inconsistency in minimum shift length will be addressed by modifying the minimum payment for undertaking higher duties for a period of up to four hours which is currently four hours at the higher pay rate. The amended clause will be:

‘(a) An employee engaged on duties carrying a higher pay rate than that for their ordinary classification must be paid the higher pay rate as follows:

Period on higher duties	Period of payment at higher pay rate
Up to four hours per day or shift	Four hours (subject to (b))
Over four hours per day or shift	A full day or shift
Over 20 hours in a week	A full week

(b) Provided that for part-time or casual employees whose shift is less than four hours, payment will be at the higher pay rate for the full shift.’

Clothing and footwear allowance

[172] The third issue in contention concerns clause 11.3(b) – Clothing and Footwear allowance of the Exposure Draft.

[173] SDA submitted that the re-drafting of the clause dealing with clothing and footwear allowance has shifted the onus from an employer supplying personal protective equipment (PPE) to an employer reimbursing an employee for the purchase of PPE. 42 Clause 11.3(b) of the Exposure Draft was as follows:43

‘Clothing and footwear allowance

(i) An employer must reimburse an employee for the purchase and/or cleaning of:

• two sets of overalls or other protective clothing per year;



• additional overalls or other protective clothing necessitated by the employee being employed in the handling in bulk of acids or other materials injurious to clothing;



• waterproof boots if the employee is required to work in wet places; and



• suitable footwear where the material being used by an employee in the process of manufacture comes in contact with and is injurious to footwear or where the employer requires the employee to wear protective footwear for safety reasons.




(ii) Reimbursement is not required where the employer supplies and/or cleans the clothing and footwear set out in clause 11.3(b).

(iii) Any clothing or footwear supplied by an employer remains the property of the employer.

(iv) Where an employee wants to wear safety footwear that is not required under clause 11.3(b)(i), the employer must reimburse the employee for50% of the cost of such safety footwear and the reasonably required replacement of such footwear.’

[174] The SDA submitted that the wording in clause 19.8 of the current modern award should be retained. Clause 19.8 of the current modern award provides as follows:

‘(a) An employer must either supply and clean or reimburse an employee for the purchase and/or cleaning of:

(i) two sets of overalls or other protective clothing per year;

(ii) additional overalls or other protective clothing necessitated by the employee being employed in the handling in bulk of acids or other materials injurious to clothing;

(iii) waterproof boots if the employee is required to work in wet places; and

(iv) suitable footwear where the material being used by an employee in the process of manufacture comes in contact with and is injurious to footwear or where the employer requires the employee to wear protective footwear for safety reasons.

(b) Any clothing or footwear supplied by an employer remains the property of the employer.

(c) Where an employee wants to wear safety footwear that is not required under clause 19.8(a)(iv), the employer must reimburse the employee for50% of the cost of such safety footwear and the reasonably required replacement of such footwear.’

[175] The AWU supported the SDA’s submission. 44

[176] In their submission of 15 December 2014, ABI and the NSW Business Chamber said that they consider the wording outlined in the current award resolved any ambiguity and this wording should be maintained. They contend that the current award clause contained wording which allowed flexibility in relation to the supply, cleaning and reimbursement of costs rather than restricting employers to adopt a ‘supply and cleaning approach’ or a ‘reimbursement approach’. 45

[177] We will re-insert the wording in the current award.

Overtime and penalty rates

[178] The final issues in contention concern clause 14.1 of the Exposure Draft (overtime and penalty rates). Clause 14.1 of the Exposure Draft provides as follows:

‘Definition of overtime

(a) For a full-time or casual employee overtime is any time worked:

(i) outside the times of beginning and ending work in any one day;

(ii) within the times of beginning and ending work but in excess of eight hours in any one day;

(iii) on a Saturday, Sunday, public holiday or rostered day off.

(b) For a part-time employee, overtime is any time worked in excess of the employee’s hours as agreed in accordance with clauses 6.3(b) and 6.3(c).’

[179] The current award provides for overtime as follows:

‘Overtime and penalty rates

The following rates, based on 1/38th of the weekly wage rate, must be paid for all work done:

25.1 Outside the times of beginning and ending work in any one day—150% for the first two hours and 200% thereafter.

25.2 Within the times of beginning and ending work but in excess of eight hours in any one day—150% for the first two hours and 200% thereafter for a day worker and 150% for the first three hours and 200% thereafter for a shiftworker.

25.3 On Saturday—150% for the first two hours and 200% thereafter, with a minimum payment as for three hours’ work.

25.4 On Sunday—200%, with a minimum payment as for three hours’ work.

25.5 On a rostered day off—250% or a day off instead at some future date.

25.6 On a public holiday—250%.’

[180] The Exposure Draft posed the following question for parties:

‘Parties are asked to clarify whether “beginning and ending work” refers to the span of ordinary hours in clause 8.2(b) for day workers and/or should refer to outside rostered hours for shiftworkers?’

[181] The AWU submitted that the term ‘beginning and ending work’ appears to contemplate rostered working hours. They contend that the intent of the clause is for overtime to be payable, in the case of dayworkers: (i) for work outside the space of ordinary hours in clause 8.2, and (ii) for more than 8 hours of work on a day; and in the case of shiftworkers: (i) for work outside the span of ordinary hours in clause 8.3, and (ii) for more than 8 hours of work on a shift. 46

[182] Ai Group oppose this submission and maintain that the words ‘beginning and ending work’ refers to the span of hours. Ai Group submit that the words appear to have been taken from the Manufacturing Chemists Award 1998 (AP788127CRV) which was one of the primary pre-reform federal awards upon which the modern award is based. 47 Clause 23.1 of the pre-reform award deals with the spread of hours. It describes each end of the spread as the ‘time of beginning’ and the ‘time of ending’. The overtime provision (clause 25.1) requires the payment of overtime for work performed ‘outside the times of beginning and ending work.’ This is a reference to the times specified in clause 23.1. Ai Group submits that clause 25 of the modern award and clause 14.1 of the Exposure Draft clearly originate from the pre-reform award and therefore refer to the span of hours. We agree with the submission of Ai Group in that the clause refers to the span of hours.

[183] Clause 13.1(a)(iv) of the Exposure Draft provides:

‘non-successive afternoon/night shift means an employee is required to work an afternoon or night shift which does not continue:

• for at least five successive afternoons or nights in a five day workshop; or



• for at least six successive afternoons or nights in a six day workshop.’

[184] AWU submitted that clause 13.1(a)(iv) of the Exposure Draft should be deleted because it is inconsistent with shiftwork ordinary hours being worked from Monday to Friday. At the 28 November conference 48, AWU was asked to provide further submissions regarding this point. The Commission has not received any further correspondence from the parties as to whether this issue will be pressed. We will allow the parties a further two weeks from the date of this decision to inform the Commission whether this issue is to be pressed as part of the Review.

[185] There is a one further issue that we will comment on. ABI and the NSW Business Chamber had previously submitted that clause 11.6 of the current award has been re-drafted and entitlements had arguably been altered in both the original and amended Exposure Drafts. Clause 11.6 of the current award is as follows:

‘A part-time employee must be engaged for a minimum of three consecutive hours per day or shift.’

[186] Clause 6.3(d) of the revised Exposure Draft provides:

‘On each occasion a part-time employee is required to attend work, the employee must be engaged for a minimum of three consecutive hours.’

[187] It is submitted that the words ‘per day or shift’ contained in clause 11.6 of the current award should not be replaced by the words ‘required to attend work’ as such change could give rise to new substantive entitlements. 49 A number of other parties supported this argument.50 ABI and the NSW Business Chamber have submitted they have re-examined the clause in respect of any issues arising in the existing award relating to employees attending work multiple times during one day, such as a call-back scenario. Given that no such issues appear to arise, they confirm that these concerns are met by the proposal made at the 28 November conference.51 We have decided that the words ‘required to attend work’ in the revised Exposure Draft will remain. No change in meaning is intended by this amendment.

2.11 Poultry Processing Award 2010

[188] An Exposure Draft for this award was published on 3 October 2014. Written submissions were received from interested parties concerning the Exposure Draft. A conference was held on 10 December 2014 and a number of changes to the Exposure Draft received the general support of those parties present at the conference. These changes were summarised at Attachment A of the report to the Full Bench made on 23 December 2014. We propose to make all the agreed changes.

[189] There were a number of issues identified about which there was no agreement, these were summarised at Attachment B of the report to the Full Bench. They are as follows:

(i) Allow fortnightly as well as weekly payment;
(ii) Include a definition of a permanent night shift employee, as an employee who works night shift only or stays on night shift for a longer period than four consecutive weeks;
(iii) Should the leading hand allowance be paid while the employee is on leave?
(iv) Should the percentage of the standard rate be published as well as a dollar value?
(v) Should the award provide that any hours worked by part-time employees outside the hours set in clause 6.4(c) be paid at the overtime rate?

Fortnightly pay cycle

[190] Clause 10.5 of the Exposure Draft provides that wages ‘must be paid weekly’. The AFEI seeks to vary clause 10.5 to provide that wages may also be paid fortnightly.

[191] The AFEI contends that there is merit in the proposed variation in that it will:

• afford employers additional flexibility surrounding the frequency of payment;



• reduce the regulatory burden associated with a weekly pay cycle; and



• replicate fortnightly pay provisions in related modern awards.

[192] The AMWU opposes the proposed variation and contends that the employees covered by the award will suffer financial detriment when shifting to less frequent pay intervals and that such a shift will create complexity, especially when errors occur.

[193] We acknowledge that a shift to fortnightly pay will cause some financial detriment to the employees affected, albeit temporary, and that some of the considerations we are required to take into account in giving effect to the modern awards objective tell against the proposed variation – in particular, the needs of the low paid (s.134(1)(a)) and the need to encourage enterprise bargaining (s.134(1)(b)).

[194] However other considerations are in favour of the proposed variation, in particular:

• the need to promote flexible modern work practices (s.134(1)(d)); and



• the beneficial impact on business, through reduced employment costs and regulatory burden (s.134(1)(f)).

[195] In relation to the latter point it is relevant to observe the Poultry Award is one of very few modern awards that only allow for the payment of wages on a weekly basis 52 and that a number of related awards currently make provision for fortnightly pay: Clerks (Private Sector) Award 2010 (at clause 23.1); Manufacturing and Associated Industries and Occupations Award 2010 (at clause 34.1(a)).

Permanent night shift

[196] Consistent with paragraph [49] we consider the inclusion of a definition of permanent night shift is required for the award to operate effectively. In their submission of 24 October 2014 ABI proposed the following definition:

‘Permanent night shift employee is an employee who:
(i) works night shift only; or
(ii) stays on night shift for a longer period than four consecutive weeks.’

[197] This wording was supported by the AWU with the inclusion of a further paragraph:

‘or
(iii) works on a night shift which does not rotate or alternate with another shift or with day work so as to give the employee at least one third of their working time off night shift in each shift cycle.’

[198] We agree with the parties’ proposals and will adopt the combined definition.

Leading hand allowance

[199] As stated in the current award at clause 20.1, the leading hand allowance is an all purpose allowance and therefore, in accordance with our July 2015 decision is payable while an employee is on annual leave.

Allowances – dollar value

[200] In the Guide to Award Stage 53  we outlined a number of changes that have been introduced in the Exposure Drafts in order to make modern awards easier to use. These include the publishing of work related allowances as a monetary amount in the body of the award. The methodology for calculating such allowances by reference to a percentage of the standard rate as defined will be included in a schedule to the award.

Part-time employees

[201] The final issue in dispute – concerning when overtime is paid to part-time employees – will be referred to the Casual and Part-time Employment Full Bench in AM2014/196.

2.12 Professional Diving Industry (Industrial) Award 2010

[202] An Exposure Draft was published on 3 October 2014. Written submissions were received from interested parties concerning the Exposure Draft. At the hearing of 18 November 2014, parties were directed to file written submissions with respect to the Summary of submissions document prepared by the Commission. The document sought to clarify the propositions of each party, and the extent of any agreement in relation to those propositions.

[203] The Commission convened a conference in relation to the Exposure Draft on 13 May 2015. Submissions with respect to the Exposure Draft were received from the AWU and the MUA prior to the conference. In attendance at the conference were representatives from the MUA, AWU and AMMA. Written submissions were subsequently received by AMMA on 11 June 2015, and a Report to the Full Bench was issued on 2 July 2015.

[204] A number of matters have been agreed between the parties (see items 1-8 of Table 1 attached to the Report to the Full Bench). These are outlined below:

(i) the introduction of a facilitative provisions clause;

(ii) reference to maximum working hours be removed as this subject matter is dealt with by the relevant safety obligations on employers and employees;

(iii) the payment of wages by electronic funds transfer on termination of employment be inserted into the Exposure Draft at clause 10.3; and

(iv) the Award should, as was expressed in the Professional Divers’ Maritime Union of Australia Award 2002 be separated into General provisions and inshore and offshore provisions for clarity of reading.

[205] The agreed changes are accepted as appropriate and will be incorporated in a revised Exposure Draft.

[206] Consistent with the 2010 Award, the Exposure Draft when dealing with minimum wages at clause 10.1 and 10.2 refers to a “full-time adult employee”. There are no junior rates provided in the Award. AMMA advised that the necessary diving certification to work under the Award requires a person to attain the age of 18 years. As the award does not provide for rates based on the age of an employee, the reference to an ‘adult’ rate can only serve to mislead and will be removed.

[207] Subsequent to the conference of 13 May 2015 correspondence dated 21  August 2015 was received from a business that trades as Fremantle Commercial Diving. The correspondence refers to having recently become aware of the Commission’s Review of modern awards and makes a submission in relation to the calculation of casual rates and the ordinary hours of casual employees for inshore diving.

Ordinary hours – inshore/offshore driving

[208] To fully understand the issues concerning the hours of work for employees covered by the Professional Diving Industry (Industrial) Award 2010 which are different for offshore and onshore divers it is necessary to traverse the recent award history.

2002 Award

Inshore Divers

[209] The Professional Divers’ – Maritime Union of Australia Award 2002 54 (the 2002 Award) which preceded the 2010 modern award provided at clause 33.1 that the ordinary hours of work for inshore divers “shall not exceed six hours and 36 minutes per day which may be worked between 6.00am and 6.00pm Monday to Friday” (33 hours per week). Clause 34.1 required all hours worked in excess of the 33 ordinary hours to be paid at overtime rates.

[210] The 2002 Award consistent with the ordinary hours for inshore divers being 33 per week then prescribed the casual rate of pay for inshore divers at clause 29.3 as “1/33 of the weekly rate plus twenty percent”.

Offshore Divers

[211] The 2002 Award under clause 20 Hours of Work stated that with the exception of employees engaged in operations rendering them subject to greater than atmospheric pressure, the average daily hours of work shall be no greater than 12 hours. This was the extent of the hours provision; there was no reference to maximum ordinary hours per week or the payment of overtime. Being offshore, presumably divers worked a 12 hour shift for each day of their 14 day roster.

[212] Other than casuals, offshore divers received a paid day off for each day worked, rosters were to be worked on the basis of 14 days on and 14 days off (clause 21 Periods of Duty).

[213] Casual employees were entitled to a loading of 227.5% (clause 13.3.3(d)) but not a paid day off for each day worked.

2010 Award

[214] During the award modernisation process leading to the making of the Professional Diving Industry (Industrial) Award 2010 (the 2010 Award) the MUA representative advised the Full Bench that the casual loading of 127.5% reflected an even time roster being worked (14 days on 14 days off). 55 In the Exposure drafts submitted by both the MUA and AMMA the casual loading was expressed as the minimum rate “plus a casual loading of 127.5%”.

[215] In handing down the 2010 Award the Full Bench stated:

‘[31] … We have decided not to retain the casual loading of 27.5%. To do so would depart from our general approach without justification. The loading will be fixed at the standard rate of 25%.’

[216] This determination would appear to have misunderstood the existing loading to be 27.5% and not 127.5% as was the case.

Inshore Divers

[217] The 2010 Award inserted the same ordinary hours of work provision for inshore divers (clause 21.1(a)) as existed in the 2002 Award that being 33 ordinary hours per week. The casual loading is described as 25% based on a 38 hour week for all divers, and does not incorporate the 33 hour week basis for inshore divers as was in the 2002 Award.

Offshore Divers

[218] As the 2010 Award did not separate the conditions of employment for inshore and offshore divers (as discussed above) there is no direct reference to the ordinary hours of work for offshore divers. However at clause 10.2 the hours for a full-time employee are prescribed as an average of 38 ordinary hours per week. In view of the prescribed ordinary hours of 33 per week for inshore divers, the 38 hour reference can only have application to offshore divers.

Exposure Draft

[219] The Exposure Draft continues to refer to the ordinary hours as stipulated in the 2010 Award of 38 hours per week for offshore divers (clause 6.2) and for inshore divers, 33 hours per week (clause 8.1). With the Exposure Draft to be amended to provide separate divisions for both types of diving, the hours of work for each diving category will be made clearer.

[220] Reference to a 38 ordinary hours per week for offshore divers is consistent with the maximum permissible under the National Employment Standards 56 although it appears through the working of an even time roster with 12 hour days, offshore divers work an average of 42 hours per week.

[221] Consistent with the 2010 Award overtime is provided for inshore divers after 33 hours but not offshore divers. The casual loading for all divers is prescribed as 25% based on a 38 hour week.

[222] The MUA submitted that the ordinary hours of work for inshore divers of 33 hours per week is reflected ineloquently in the Exposure Draft, similar to the 2010 Award. Further as a consequence of the amalgamation of the Hours of Work provisions in the 2010 Award and in the Exposure draft the casual loading for inshore divers has been incorrectly referenced to 1/38th of the weekly rate whereas it should be based on a 33 hour week.

[223] AMMA submitted that for all employees, full-time employment should be based on 38 ordinary hours per week which should also be the basis for calculating the casual rate, being consistent with the overarching award modernisation objective. AMMA contends that the ‘limitation to a 33 hour working week does not reflect the contemporary diving or employment contexts’, but did not advance any evidence in support of this contention.

[224] Fremantle Commercial Diving submitted that varying the casual loading calculation for inshore divers from a 38 hour base to a 33 hour base will result in a cost impost and impact employers who have existing contracts in place which reflect a 38 hour base.

[225] Fremantle Commercial Diving also referred to clause 6.3(b) of the Exposure Draft which states that casual employees will be paid an hourly rate with a minimum payment of 8 hours. On this basis it is argued that casual ordinary hours for inshore divers should be 8 hours per day, which is inconsistent with the prescribed 6 hours and 36 minutes. In respect of this submission clause 6.3(b) has its origins in the 2002 Award where it applied to inshore divers only and was found in the Wage Rates provision. The Wage Rate provision provided a weekly rate of pay and casuals were to receive no less than 8 hours pay. As such the clause was never intended to be a daily minimum payment. The Exposure Draft will be amended to place clause 6.3(b) in the Minimum Wages clause for inshore divers.

[226] While we accept that historically the ordinary hours of work for inshore divers has been 33 hours per week, whereas ordinary hours for offshore divers are 38, no party, other than anecdotally, could point to the basis for the inshore diving ordinary hours of 33 per week. AMMA understood that it had its origins in diving work being performed on rigs in the Bass Strait around 1976 57. This distinction is unusual and warrants further examination as to why the hours for inshore divers should not be the NES standard of 38 per week, particularly given the comparison with offshore divers. Deputy President Bull will call the matter on again to give other parties an opportunity to be heard on this issue.

[227] AMMA also noted that clause 8.1(c) provides that the ordinary hours of work for a casual inshore diver are to be in accordance with clause 6.3, however clause 6.3 does not stipulate the ordinary hours of work for casuals. This issue will be resolved in the drafting of the amended Exposure Draft.

Meal Break

[228] The Exposure Draft also provides for a meal break (at clause 9) for inshore divers without reference to whether it is paid or unpaid which is the same as the 2010 Award (at clause 23). The respective unions argue the meal break should be a paid break, whereas AMMA state it should be unpaid. No merit basis for payment of the meal break was identified; as such the relevant provision will state that the meal break is unpaid.

Late payment of wages

[229] The second area of dispute concerns the penalty for late payment of wages.

[230] Clause 10.3 of the Exposure Draft provides as follows:

‘… (b) Wages will be paid by cash, bank cheque or electronic funds transfer (EFT).

(c) Employees kept waiting for their wages on pay day for more than 15 minutes after the usual time for ceasing work must be paid overtime rates after that 15 minutes.’

[231] AMMA submitted that the entitlement in clause 10.3(c) should be deleted on the basis that ‘it does not reflect modern payroll operations’. 58

[232] This issue has recently been given some consideration by the Full Bench which dealt with a number of substantive issues in relation to the review of the Timber Industry Award 2010. One of the issues determined by the Full Bench was a claim by a division of the CFMEU to vary the award to provide for a late payment penalty where wages are paid by EFT, the award already provided for a late payment penalty where employees are paid in cash. The Full Bench traversed the submissions in detail and ultimately rejected the claim. In doing so the Full Bench stated:

“[124] Further as a matter of merit, we think that the prescription of payment in respect of time spent by an employee waiting for a late payment by cash or cheque, in respect of the delayed departure of an employee from their place of employment because their wages are not paid on time is qualitatively different from the imposition of a penalty in respect of late payment by EFT.”

[233] We agree with the sentiment that late payment penalties are not appropriate in circumstances where employees are paid by electronic funds transfer (EFT). We also agree with the comments of Mayo J of the South Australian Supreme Court in Cranford-Webster v McFarlane 59:

“I think it means time which the employee spends at the employer’s establishment actually waiting for his pay …

“Waiting time’ would mean in its ordinary sense the time that an employee spent and wasted in loitering about whilst payment of wages to him was not forthcoming. The appropriate meaning to be given to ‘waiting’ would seem to be staying in expectation, stopping or remaining stationary, or inactive till the happening of the event, holding over departure.

[234] However the Exposure Draft provides, at clause 10.3(b) that wages may be paid by cash, bank cheque or EFT. In circumstances where wages are paid in cash or bank cheque the penalty for late payment (in clause 10.3(c)) remains relevant. For that reason we do not propose to amend the Exposure Draft in the manner suggested by AMMA.

2.13 Rail Industry Award 2010

[235] An Exposure Draft for this award was published on 13 October 2014. Written submissions from interested parties concerning this Exposure Draft were subsequently received. A Report to the Full Bench issued by Commissioner Cambridge on 22 October 2014⁶⁰ arising out of conferences conducted by him on 1 July, 14 August and 17 October 2014 indicated that variations to this award proposed by various parties fell into three categories: firstly, those which were uncontroversial and agreed; secondly, contested variations capable of resolution other than by arbitration before a separate Full Bench; and thirdly, strongly contested variations which would require determination by a Full Bench.

[236] On 14 November 2014 the Commission published a Summary of Submissions document which set out the submissions made by the parties concerning this award. It identified 28 issues of a technical nature concerning the Exposure Draft and 7 contested substantive issues concerning proposed award variations that had been raised in the parties’ submissions. The parties were given the opportunity to make oral submissions about these matters before this Full Bench on 17 November 2014. A further conference was conducted by Vice President Hatcher on 24 November 2014 which dealt with a substantive coverage issue raised by the Australian Rail, Tram and Bus Industry Union (RTBU)⁶¹ as well as a number of technical issues. A number of parties subsequently filed further submissions in relation to issues discussed at the conference on 24 November 2014 in relation to directions made by Vice President Hatcher. The coverage issue could not be resolved, but some measure of agreement was reached in relation to a number of technical issues.

[237] In relation to the substantive issues identified in the “Summary of Submissions” document⁶², any party which wishes to pursue any such issue there identified is directed to file a formal application to vary the award within 21 days of this decision, including a draft variation determination and setting out the grounds in support of the variation proposed. Any such application shall then be allocated to a separate Full Bench for determination.

[238] We shall deal with the remaining technical issues concerning the Exposure Draft identified in the “Summary of Submissions” document in this decision. A number of those issues were not pressed and need not be considered further.⁶³ Other issues were the subject of agreement between the parties, and appropriate amendments will be made to the Exposure Draft to reflect the agreement reached.⁶⁴ A number of further issues were related to common issues concerning part-time and casual employment that have been identified in this Review, and shall be referred to the Casual and Part-time Employment Full Bench which has been separately constituted to determine those issues.⁶⁵

Copies of the award and NES

[239] The Australian Workers’ Union (AWU) raised an issue concerning clause 2.2 of the Exposure Draft, which deals with the provision of copies of the National Employment Standards (NES) and the award. Consistent with the Full Bench’s decision of 23 December 2014⁶⁶ (December 2014 decision) at paragraph [29], clause 2.2 will be amended to read:

“The employer must ensure that copies of the award and the NES are available to all employees to whom they apply, either on a notice board which is conveniently located at or near the workplace or through accessible electronic means.”

Facilitative provisions

[240] The Australasian Railways Association (ARA) raised an issue about the last sentence of clause 5.1, which concerns facilitative provisions in the award. Consistent with paragraph [42] of the December 2014 decision, the sentence shall be deleted.

Calculation of casual loading

[241] The ARA and Ai Group submitted that the reference in clause 6.4(c) to the 25% casual loading being payable on the “ordinary hourly rate” was incorrect, and that it should be changed to the “minimum hourly rate”. The RTBU and the AWU disagreed. The difference is that the minimum hourly rate does not include any all-purpose allowances, whereas the ordinary hourly rate does. The only allowance in the award described as an all-purpose allowance is the tool allowance (see clause 11.4(a) of the Exposure Draft). The ARA made a related submission that clause 11.4(b)(ii) of the Exposure Draft, which requires that the tool allowance form part of an employee’s ordinary rate of pay (so that overtime and penalty rates provisions operate upon it), was incorrect and should be deleted.

[242] This issue was determined in the September 2015 decision. The casual loading will be expressed as 25% of the ordinary hourly rate (that is, inclusive of any all purpose allowances).

Provisions not applying to casuals

[243] The ARA, the RTBU, the Australian Municipal, Administrative, Clerical and Services Union (ASU) and Ai Group opposed clause 6.4(e) of the Exposure Draft, which sought to identify provisions in the award which did not apply to casuals. Consistent with paragraph [69] of the December 2014 decision, this provision will be deleted.

Probationary period

[244] At clause 6.5 of the Exposure Draft, parties were invited to make submissions as to whether it was necessary to retain provisions for a probationary period in the award given changes in the legislative scheme. The ARA and Ai Group sought retention of the probationary provisions. The AWU, the RTBU and the ASU sought their deletion. The current provision, clause 11, provides:

“11. Probationary period

11.1 An employer may initially engage a full-time or part-time employee for a period of probationary employment for the purpose of determining the employee’s suitability for ongoing employment. The employee must be advised in advance that the employment is probationary and of the duration of the probation which is to be either:

(a) three months or less; or

(b) more than three months and is reasonable, having regard to the nature and circumstances of the employment.

11.2 A probationary employee is for all purposes of the award a full-time or part-time employee.

11.3 Probationary employment forms part of an employee’s period of continuous service for all purposes of the award, except where otherwise specified in this award.”

[245] We do not consider that this clause serves any practical purpose. Apart from the labelling of an employee as “probationary”, it does not provide for any difference in any entitlement for a probationary employee as compared to any other employee. It shall be deleted.

Breaks

[246] In relation to clause 9 of the Exposure Draft, which concerns breaks, the ARA submitted that the second sentence of the clause altered the meaning of the existing provision. Clause 9 of the Exposure Draft provides:

‘9. Breaks

During the course of an eight hour shift, an employee may be rostered for an unpaid meal break of not less than 30 minutes provided that it does not interfere with operational requirements. Where practical, the employee should not be required to work more than five hours without a break.’

[247] Clause 22 of the award currently provides:

‘22. Breaks

An employee may be rostered for an unpaid meal break of not less than 30 minutes during the course of an eight hour shift provided that it does not interfere with operational requirements. Where an unpaid meal break is provided, the employee, where practical, should not be required to work more than five hours without a break.’

[248] It is not clear to us that the proposed provision changes the meaning, but the existing provision will be retained for more abundant caution.

Annual salaries

[249] Clause 10 of the Exposure Draft poses a question about the relationship between the annual and weekly rates. The employer and employee parties agree that the annual salaries are calculated by multiplying the weekly rates by 313, then dividing by 6. This methodology will be inserted into the award to ensure transparency when wages are adjusted following an Annual Wage Review.

Payment of wages

[250] The Exposure Draft, immediately after clause 10, contains an invitation to the parties to make a submission as to whether a payment of wages clause should be added to the award. The award as it currently stands contains no such provision. The RTBU, the AWU and the ASU submitted that there should be such a provision, requiring fortnightly pay and the provision of a payslip. This was opposed by the ARA and Ai Group, which submitted that the Act deals adequately with these matters in ss.323 and 536, and there was no evidence that the award as it currently stood was not meeting the modern awards objective in this respect. Given that nothing has been put before us to suggest that there is any current difficulty for employees concerning the payment of wages which is required to be addressed, we accept the submission of the ARA and Ai Group, and no payment of wages provision will be added.

Allowances

[251] The ARA submitted that the title of clause 11, entitled “Allowances” in the Exposure Draft, should be amended to read “Allowances and Expenses” as in the current award. This is rejected.

Saturday ordinary hours

[252] The ARA submitted that clause 13 of the Exposure Draft omits the provisions of the current award which provide for a loading of 50% to be paid for ordinary hours worked on Saturdays. This has come about because there has been a restructuring of the current clause 23, in which overtime and weekend penalty rates were dealt with in the same clause, to divide it into separate clauses dealing with shift and weekend rates and overtime rates separately. We accept the ARA’s submission, and the Exposure Draft shall be amended to re-insert a reference to the Saturday loading for ordinary hours. The reference in clause 13.3 to clause 13.1(c) will also need to be amended to refer to clause 13.2.

Permanent night shift

[253] Appearing immediately after clause 13.1, the question is posed in the Exposure Draft as to whether the award should contain a definition of “permanent night shift”. This question arose because clause 13.2 contained a higher shift penalty for a “permanent night shift” as compared to simply a “night shift” without there being any explanation beyond that as to the circumstances which attracted the higher penalty (noting that “night shift” only is defined in clause 13.1). The ARA, the ASU and the AWU submitted that no such definition was necessary, but the RTBU submitted that such a definition should be included. We consider, consistent with paragraph [182] of the December 2014 decision in relation to the Cement, Lime and Quarrying Award 2014, and paragraphs [49] and [196] of this decision, that there should be a definition of “permanent night shift” to make it clear when the higher shift loading is payable.

[254] The definition below proposed in the Cement, Lime and Quarrying award reflects the definition in clause 21.3 of the Railways Metal Trades Grades Award 2002 [AP817167] and will be inserted in clause 13.1 of the amended Exposure Draft:

‘Permanent night shift means when an employee who:
(i) during a period of engagement on shiftwork, works night shift only; or
(ii) remains on night shift for a longer period than four consecutive weeks; or
(iii) works on a night shift which does not rotate or alternate with another shift or with day work so as to give him or her at least 1/3rd of his or her working time off night shift in each shift cycle.’

Overtime payment – exclusions

[255] In relation to clause 14.2 of the Exposure Draft, which excludes from the requirement to pay overtime any “employee within the Clerical, Administrative and Professional classifications engaged on a base rate of pay per annum that is at or above Level 7” (consistent with clause 23.1(a) of the current award), the parties were invited to consider whether the “base rate of pay per annum” should be changed to refer to the “annual salary equivalent” in clause 10.1. “Annual salary equivalent” is how annual pay is described in clause 10.1. The ASU, the AWU and the RTBU submitted that it should. No submission was made against it. That change will be made.

Classification definitions

[256] In relation to Schedule A of the Exposure Draft, which sets out the classification definitions, the RTBU, the ASU and the AWU submitted that annual and weekly rates for each classification should be included in the schedule. Those submissions are rejected. It is not the purpose of Schedule A to set out rates of pay. The annual and weekly rates for each classification are set out in clause 10.1.

Saturday – overtime

[257] The ASU and the RTBU have submitted that clause 14.3, which provides that overtime on Saturday is to be paid with a loading of 50%, is anomalous compared to the overtime loadings for Monday to Friday, which are 50% for the first 3 hours and 100% after that. They submit that the overtime loading for Saturday should be the same as for Monday-Friday, and to the extent that the current award provided otherwise, it was in error. Any change of this nature is opposed by the ARA and Ai Group. We consider that this should be treated as a substantive rather than a technical issue, and if the RTBU and/or the ASU wish to pursue this issue, they should file a formal application to vary the award within 21 days of the decision, and the matter will be referred to a separate Full Bench for determination.

2.14 Stevedoring Industry Award 2010

[258] An Exposure Draft of this award was published on 2 October 2014. A number of parties made submissions in response to the Exposure Draft. Based on correspondence from the parties (including letters from Seyfarth Shaw of 24 November 2014, on behalf of the MUA and the Stevedoring Employers, the AWU on 26 November 2014, and Ai Group on 26 November 2014), there appears to be general support for the changes reflected in the Parties’ amended Exposure Draft published on 14 November 2014. Those changed marked as agreed in the Revised summary of submissions published on 28 November 2014 will be adopted.

[259] The parties do not consider there is a need for a Payment of wages clause and consistent with our approach in paragraph [250] no payment of wages provision will be added.

[260] A separate Full Bench has dealt with a number of other issues made by the stevedoring employers and the MUA regarding coverage, classifications, ordinary hours of work, penalty rates and penalties and leave on public holidays. Their decision was issued on 14 May 2015 67 and a determination varying the award in relation to compensation for work on a public holiday was made effective from the date of that decision.

2.15 Textile, Clothing, Footwear and Associated Industries Award 2010

[261] An Exposure Draft for this award was published on 30 October 2015 and written submissions and submissions in reply were filed by interested parties. Further conferences were held before Commissioner Lee with a view to narrowing the areas of disagreement between the parties on the range of variations proposed. Conferences were convened on 18 June and 17 July 2015. A report to the Full Bench was provided on 18 July 2015. 68 Issues relating to this award were divided into ‘substantive’ variations and technical and drafting variations. Substantive issues in relation to the award were dealt with by a separately constituted Full Bench. That Full Bench issued its decision on 11 May 201569 and made a number of changes to the award.

[262] The interested parties have reached agreement on a number of issues. Where the parties have reached agreement, the agreed position will be adopted and published in a revised version of the Exposure Draft. A number of general technical and drafting issues which have been raised in relation to the award have subsequently been determined by this Full Bench in decisions issued on 23 December 2014 70 and 13 July 201571.

Table of contents

[263] The TCFUA submitted 72 subheadings should be inserted into the table of contents in the Exposure Draft for the different categories of employment. ABI and the NSWBC were opposed to this on the basis that the inclusion of the subheadings in the table of contents was unnecessary. We agree with ABI and the NSWBC.

Casual conversion

[264] The TCFUA strongly oppose any amendment to the wording of the casual conversion clause in the award. 73 This issue will be referred to the Casual and Part-time Employment Full Bench in AM2014/197.

Shift work

[265] In the Exposure Draft the Commission posed a question for parties at clause 17.1(b) dealing with afternoon shifts, as follows: ‘Is a shift that finishes after 6.00 pm but before 7.00 pm a day shift or an afternoon shift?’

[266] The parties agreed that the wording of 17.1(b) need not be amended. The wording of clause 17.1(b) of the Exposure Draft will remain and the question posed by the Commission deleted. A further question was put at 17.1(b) regarding whether a definition of permanent night shift is required. The question was ‘Should there be a definition for ‘permanent night shift’? Is it the same as the definition for ‘permanent night shift’ for shiftwork in the textile industry? The TCFUA submitted 74 that the Exposure Draft should not contain a definition for permanent night shift. We consider, consistent with paragraph [182] of the December 2014 decision in relation to the Cement, Lime and Quarrying Award 2014, and paragraphs [49] and [196] of this decision, that there should be a definition of “permanent night shift” to make it clear when the higher shift loading is payable. We note that the Exposure Draft currently contains a definition of permanent night shift in clause 18.1(e) for employees in the Textile industry as follows:

‘(e) Permanent night shift means a shift which is applicable to an employee who:

• during a period of engagement works night shift only; or

• remains on night shift for a longer period than four consecutive weeks; or

• works on a night shift which does not rotate or alternate with another shift or with day work so as to give the employee at least one third of their working time off night shift in each shift cycle.’

This provision will be expressed to apply to all employees under this award.

[267] The TCFUA made a submission in relation to the wording of clause 17.2(a) of the Exposure Draft, in that the change of wording from the current award is a substantive alteration which changes the obligation and rights in the provision. Clause 17.2(a) of the Exposure Draft provides as follows:

‘An employer and a majority of affected employees may agree to vary the hours during which shifts must be worked by up to one hour at either end to meet extraordinary circumstances. Such agreement must be in accordance with clause 5.4.’

[268] We disagree with the submission of the TCFUA. It does not appear that clause 17.2(a) of the Exposure Draft substantially changes the clause from that of the current award. Clause 17.2(a) will remain in the Exposure Draft as it is currently worded.

[269] The comparable provision in the current award is at clause 34.2 which provides as follows:

‘34.2 The hours during which shifts must be worked may be varied by up to one hour at either end to meet extraordinary circumstances by agreement between an employer and a majority of employees. Such agreement must be in accordance with clause 8.3.’

[270] The TCFUA raised an issue with the clause in the Exposure Draft relating to personal/carers leave and compassionate leave. This issue has been dealt with in the 23 December 2014 decision, and amendments to the Exposure Draft will be made consistent with that decision.

[271] The TCFUA have also raised an issue in relation to the summary of hourly rates of pay that are located at Schedule C to the Exposure Draft.. The TCFUA further submit that there should be a note inserted to make it clear that the tables are minimum wage rates only and that an employee may be entitled to higher rates of pay as part of their employment contract. They submit that without this note, employers may reduce the rate of pay for current employees where such employees receive over-award rates of pay. 75 ABI and the NSWBC do not agree with the TCFUA that there is a requirement for such note to be inserted into the Exposure Draft.76 We agree with the submission of ABI and the NSWBC. The TCFUA submit that the tables are inaccurate77 The casual rates identified by the TCFUA will be reviewed and corrected in an updated Exposure Draft.

[272] During one of the conferences in relation to this award the parties agreed that a note would be inserted into the table at clause C.2.4 of the Exposure Draft to the following effect: ‘These rates are only payable where agreement is reached in accordance with clause 19.6’. We agree that this note should be inserted into the Exposure Draft.

[273] A revised version of the Exposure Draft incorporating all of the changes outlined above will be published on the Commission website.

2.16 Timber Industry Award 2010

[274] An initial conference to identify issues in relation to this award was conducted on 10 June 2014 by Deputy President Gooley, and a report to the Full Bench arising from the conference was issued on 18 July 2014.⁷⁸ An Exposure Draft was published on 29 September 2014, and written submissions commenting on this Exposure Draft were subsequently received from interested parties. A summary of the submissions in relation to the Exposure Draft was published on 14 November 2014. There was a hearing in relation to the Exposure Draft on 17 November 2014. As a result of directions issued by the President on 18 November 2014, the substantive issues in dispute were referred to a separate Full Bench for determination. A further conference in relation to the Exposure Draft was conducted by Vice President Hatcher on 24 November 2014. The 58 issues in the summary of submissions which are not identified as substantive, or to be dealt with by other Full Benches, will be dealt with in this decision.

[275] A number of those issues⁷⁹ are general ones which were determined by the Full Bench’s decision of 23 December 2014.⁸⁰ In relation to those issues, the Exposure Draft will be amended consistent with the December 2014 decision. Further non-contentious drafting errors in the Exposure Draft will be corrected.⁸¹ A number of other issues were ones of a general nature concerning part-time or casual employment, which will be referred to the Part-time employment and Casual employment Full Bench.⁸² One issue has already been the subject of a correction in the Exposure Draft.⁸³

Facilitative provisions

[276] In relation to clause 6.2 of the Exposure Draft, which lists the facilitative provisions in the award, the CFMEU (F & FP Division) submitted that two provisions identified, namely clause 7.5 (which concerns casual conversion) and clause 8.1(g) (which concerns measurement of logs in respect of pieceworkers) are not facilitative provisions. In relation to clause 7.5, the reference should be to 7.5(e) only (which permits thee eligibility period for casual conversion to be changed by agreement). We disagree in respect of clause 8.1(g), which specifically allows for a departure from the standard provision by agreement. The CFMEU (F & FP Division) also contended that certain cross-references in clause 6.2 to facilitative provisions were incorrect. We disagree with this also.

Full-time employee

[277] The CFMEU (F & FP Division) also submitted that clause 7.2 of the Exposure Draft, which concerns full-time employees, alters the meaning of the existing provision in clause 12.1 of the award. We do not agree. Clause 7.2 should be read with clause 7.1. The effect has not changed. However the words “unless otherwise specified” in clause 7.2(b) of the Exposure Draft are unnecessary in the restructured provision and shall be deleted.

Pieceworkers

[278] In relation to clause 8.1(d) of the Exposure Draft, which sets out provisions of the award which apply to pieceworkers, the CFMEU (F & FP Division), the AWU and Ai Group opposed the deletion of the reference to clause 15, which concerns payment of wages. Clause 15 of the Exposure Draft is headed “Payment of wages - employees other than pieceworkers” (underlining added). The existing payment of wages clause (clause 25) does not contain the underlined exclusion, and clause 12.5(d) provides that it applies to pieceworkers subject to a modification concerning payslips in clause 12.5(j). We have decided that:

(1) the reference in clause 8.1(d) to clause 15 will be re-inserted;

(2) the words “employees other than pieceworkers” will be deleted from the heading of clause 15; and

(3) in clause 8.1(j) (which concerns payslips for pieceworkers), the words “Instead of clause 15” shall be deleted.

Payment by results

[279] In relation to clause 8.2(a) of the Exposure Draft, which concerns payment by results for employees in the Wood and Timber Furniture Stream, the CFMEU (F & FP Division) submitted that the requirement for employees to be paid “at least 12.5% in excess of the appropriate weekly base rate prescribed by this award for an adult employee” should be altered to replace “weekly base rate” with “weekly rate”. In fact, the rates (in clause 14.1) are referred to as “minimum weekly rate”. The words “weekly base rate” shall be deleted and replaced with “minimum weekly rate”.

Apprentices

[280] The CFMEU (F & FP Division) opposed the relocation of the provisions concerning apprentices into clause 10 of the Exposure Draft. This objection is rejected.

Classifications

[281] The CFMEU (F & FP Division) pointed out that the word “are” in clause 11 where it first appears is an error. This shall be corrected.

Ordinary hours – watchpersons

[282] In relation to clause 12.4(b) of the Exposure Draft, Ai Group submitted that the reference to clause 12.2 should be changed to clause 12.1. This is rejected.

Rostered days off

[283] In relation to clause 12.5 of the Exposure Draft, which is a facilitative provision which allows an employer and a majority of affected employees to agree to establish a system of rostered days off with certain identified features, the AWU and the CFMEU (F & FP Division) objected to the omission of the provision which, in the current award, is clause 27.9(b). Clause 27.9(b) provides:

“(b) Clause 27.9(a) is subject to the employer informing each union which has members employed at the particular enterprise of its intention to introduce an enterprise system of rostered day off flexibility, and providing a reasonable opportunity for the union to participate in negotiations.”

[284] We do not consider that the retention of clause 27.9(b) is necessary. The employer may not know whether a relevant union has members at its workplace. Any union members who require assistance in relation to this facilitative provision may themselves inform their union.

Rostered days or shifts off

[285] Ai Group submitted that the cross-reference in clause 12.8(a)(ii) of the Exposure Draft to clause 12.5 is incorrect, and that it should refer to clause 12.6. We agree. This shall be corrected.

Breaks

[286] The CFMEU (F & FP Division) has submitted that in relation to clause 13.1(a) of the Exposure Draft, it opposes the deletion of a reference to the duration of a lunch break being able to be other than one hour by agreement. We accept that there is no good reason for the deletion of this flexibility, and it shall be re-inserted.

Minimum wages

[287] In relation to clause 14, Minimum Wages, Ai Group and the CFMEU (F & FP Division) opposed the deletion of the provision which is clause 17.10 of the current award. Clause 17.10 provides:

“17.10 Piecework and incentive work

(a) The total minimum award rate prescribed by this clause will not apply to employees remunerated under any system or method of payment by results.

(b) The weekly rates will be the base rate prescribed for the classification in which the employee is engaged.”

[288] We consider that the current clause 17.10 should not be retained. Paragraph (a) is misleading having regarded to the provisions concerning the payment of pieceworkers which are contained in clause 8.2 of the Exposure Draft. Paragraph (b) is unnecessary.

Adult apprentices

[289] In relation to clause 14.4(a)(i)–(ii) of the Exposure Draft, Ai Group submitted that the references to the “ordinary hourly rate” should be deleted, and the reference should be to the “minimum weekly rate”. We agree. The provision should remain the same as in the current clause 17.6(a).

Actual rates of pay

[290] The HIA submitted that clause 14.8, which contains a definition of the expression “actual rate of pay”, is superfluous and should be deleted. We agree. It is not otherwise used in the existing award or the Exposure Draft. It shall be deleted.

Higher duties

[291] The CFMEU (F & FP Division) submitted that clauses 16.1 and 16.2, which relate to payment for higher duties, have been altered in a way which changes their effect. The HIA disagrees. The current provision, clause 24.1, requires payment for higher duties where the employee had been “engaged” to perform those duties for the requisite period. Clause 16.1 and 16.2 have altered this so there is a requirement of the employee to have been “required” to perform the higher duties. We accept that the new drafting arguably narrows the operation of the provision. We will revert to the current wording.

[292] The CFMEU (F & FP Division) also submitted that clause 16.4 has been drafted in a way which changes its effect. We do not agree. Currently clause 24.3 of the award requires, where an employee is transferred to a position with a lower award grade of pay without at least seven days’ written notice having been given, that the employee be paid his or her existing rate of pay “during such seven days or any less time so employed”. In clause 16.4 of the Exposure Draft, this has been changed to “until the seven day notice period would have expired”. We consider that this is a better way of expressing the same concept, although to be clearer it should read “until the seven day notice period if provided would have expired”.

Allowances

[293] In relation to the confined space allowance in clause 20.14 of the Exposure Draft, Ai Group and the CFMEU (F & FP Division) submitted that the current words “or part thereof” in the award have been erroneously omitted. These words shall be restored.

[294] In relation to the height money allowance in clause 20.15 of the Exposure Draft, two submissions are made. Ai Group submitted that the words “or part thereof” (which appear in the current clause 21.20) have been erroneously omitted. The CFMEU (F & FP Division) submitted that the allowance has been changed from being a flat daily/shift allowance to being an hourly allowance. We accept both submissions. The necessary alterations will be made.

[295] In relation to clause 21.2(a) of the Exposure Draft, which concerns overtime meal allowances, the AWU submitted that the current wording (in clause 21.6(a)) is clearer than the proposed new wording in relation to when the meal allowance is not payable. We do not agree.

[296] In relation to the tool allowance in clause 21.3(b)(i) of the Exposure Draft, Ai Group submitted that the entitlement has been expanded because it refers to “furnishing employees” and not “tradespersons” as in clause 21.9(b) of the current award. We agree. The clause will be modified so that the words “furnishing employees” in clause 21.3(b)(i) itself (but not in the chapeau to clause 21.9(b)) are deleted and replaced by “tradespersons”.

[297] In relation to the travelling expenses provision in clause 21.7(a) of the Exposure Draft, Ai Group and the CFMEU (F & FP Division) submitted that the opening words “An employee other than a weekly employee...” are incorrect, since the provision currently applies to weekly employees (and weekly employees only). The words shall be deleted and replaced by “A weekly employee...”.

[298] In relation to clause 21.9 of the Exposure Draft, which deals with training and skill development allowances, the CFMEU (F & FP Division) submitted that it should be placed at the end of clause 21, since as currently located it falls within a group of allowances concerned with travelling. This is a reasonable proposition, and the provision will be relocated accordingly.

[299] Ai Group submitted that in clause 23.2(b) of the Exposure Draft, which concerns changes to shifts, references to “shift penalties” should be changed to read “shift allowances”. It also submits a similar amendment should be made to clause 25.5(a)(ii). We agree. They are not referred to as penalty rates in the award currently, and are better characterised as shift allowances. This should be corrected, and a consequential correction will need to be made to the heading to clause 23.3. Ai Group made a similar submission about clause 25.5(a)(ii), and the same correction will be made to that provision.

[300] The CFMEU (F & FP Division) submitted that clause 23.2(b)(v) of the Exposure Draft, concerning the substitution by agreement of shifts rostered off, is superfluous because a provision to the same effect appears in clause 12.8(b)(i). We agree. The only real difference between the two provisions is that the former adds the words “without incurring a penalty” at the end. The meaning of this is obscure, and we do not consider that any question of attracting a “penalty” arises. Clause 23.2(b)(v) shall be deleted. The reference to clause 23.2(b)(v) in clause 6.2(i) will also be deleted.

[301] The CFMEU (F & FP Division) submits in relation to clause 23.2(c) of the Exposure Draft, which is a redrafted form of the existing provision in clause 28.5 which deals with shifts which span the commencement or termination of a daylight saving period, should not have omitted the requirement that “the time of the clock in each case to be set at the time fixed pursuant to the relevant State legislation”. We consider that these words are unnecessary on the basis that it is implicit that the clock will be set to the correct time.

Penalty rates for shiftworkers

[302] In relation to clause 23.3(c) of the Exposure Draft, which concerns day work rates for ordinary hours on Saturday and Sunday, the CFMEU (F & FP Division) submitted that this provision has been incorrectly placed in a clause (clause 23.3) concerned with shiftworkers. This submission has substance. Indeed clause 23.3(c) as a whole is problematic, since it establishes penalty rate for ordinary hours on Saturdays and Sundays, while at the same time clause 23.1(a)-(b) prescribes penalty rates for “All work” on Saturdays and Sundays in a different way. This repeats a problem found in clauses 27.6, 30.5 and 30.6 of the current award. The provisions will need to be restructured, and we will invite further submissions from interested parties about this.

Time off in lieu of overtime

[303] In relation to clause 24.15, which concerns time off in lieu of overtime, the Exposure Draft poses the question of whether such time off is to be provided on the basis of one hour off for each hour of overtime worked. The AWU and the CFMEU (F & FP Division) submitted that such time off should be calculated at the overtime rate. This issue is being dealt with as a general one by the separate Award Flexibility Full Bench, and so will not be determined by this decision.

Dispute resolution procedure training

[304] The CFMEU (F & FP Division) submitted that clause 34, which concerns training in respect of the dispute resolution procedure, incorrectly omits the current clause 11.5, which defines who an “eligible employee representative” is for the purpose of the provisions. We accept this submission. The definition is necessary for the proper operation of the provision. We note that the existing clause 11.5 does not confine such representatives to being union representatives. The provision should continue to appear in the award.

Definitions

[305] Schedule K sets out definitions for the purposes of the award. It includes a query as to whether the definitions of “machinist A grade” and “machinist B grade” should be moved out of Schedule K and into the classifications schedules A-C. This is opposed by the CFMEU F & FP Division. The definitions are detailed and lengthy. They shall remain in Schedule K.

Schedules

[306] Finally Ai Group submits that clause 37 of the existing award should not have been omitted from the Exposure Draft. Clause 37 provides:

“37. Principles relating to the schedules to this award

37.1 The schedules to this award describe special rates and conditions for employees working in various industry sectors. The schedules describe conditions and arrangements for each sector that are unique to each sector.

37.2 The main body of the award describes conditions and arrangements that are common for all sectors.

37.3 The provisions of the main body of this award, as varied, will apply to persons performing work provided for in these schedules unless such provisions are inconsistent with the provisions of clause.”

[307] We do not consider that clause 37.1 accurately describes the nature of all the schedules to the award (some of which are general in nature), nor does clause 37.2 accurately describe the provisions of the main body of the award (some of which are not common for all sectors). No inconsistency has been identified in relation to which clause 37.3 operates. If any such inconsistency exists, it should be identified and directly resolved. Clause 37 will be removed from the award.

2.17 Vehicle, Manufacturing, Repair, Services and Retail Award 2010

[308] An Exposure Draft of this award was first published on 20 October 2014. Following a number of conferences between the parties the Exposure Draft was updated with the last draft being issued on 2 April 2015.

[309] A number of issues raised by the parties have been referred to the Casual and Part-time Employment Full Bench. Matters associated with the content of the National Training Wage Schedule will be dealt with in accordance with paragraph [353] of this decision.

[310] Some specific merit issues in relation to this award including coverage, allowances and overtime provisions have been referred to a separately constituted Full Bench (VMRSR Award Full Bench).

[311] A substantial number of amendments have been proposed to the Exposure Draft. Following numerous conferences between the parties these proposals have either been agreed, modified and agreed or withdrawn. An updated “issues” document on the Commission website has kept track of the changes.

[312] We have accepted the agreed changes subject to any further determination by the VMRSR Award Full Bench. They will be taken into account in relation to a further Exposure Draft to be issued by the VMRSR Award Full Bench.

Summary tables

[313] This award covers employees in vehicle retail service and repair, vehicle manufacturing and drafting, planning and technical employees. Each of these groups has its own unique classification structure, penalty rates and allowances. Given the substantial number and diverse range of classifications covered by the award the parties have sought that summary tables of hourly rates of pay for full-time, part-time and casual employees including penalties and loadings not be included as this will create confusion for anyone looking at those tables to determine appropriate rates of pay.

[314] In the particular circumstances of this award we agree. To include the summary tables in the schedules would add substantially to an already lengthy award and may, because of the need to refer to the coverage of each of the parts of the award, create confusion for users of the award. For this reason and because of the unique nature of this award we have decided that the summary tables of rates of pay etc. should not be included. It may be however that such information could be usefully included in any annotated version of the award published by the administrative arm of the Commission.

Expression of casual loadings

[315] The Exposure Draft of the award has included in the minimum wages table in each section of the award a column indicating the casual hourly rate. In Section 1 of the award, which covers vehicle industry RS&R employees, the minimum wages table is at clause 32. It includes a column headed ‘casual hourly rate’. This column only reflects a 25% loading on the minimum hourly rate shown. Clause 36 of the Exposure Draft sets out the percentage loading for casual employees for all hours (Monday to Friday day and night, weekends, public holidays and overtime). The employer groups have sought the deletion of the casual hourly rate column in clause 32 as they say those rates only apply for work on Monday to Friday between 6.00 am and 6.00 pm and, because it does not include the rates for other times, there may be confusion as to which rates apply or double application of rates when clause 36 is also considered. The AMWU argue that this can be overcome by retaining the column and by including two footnotes—one advising that the casual rates in the table only apply to hours worked between 6.00 am and 6.00 pm Monday to Friday and that casual rates for other times are set out in clause 36.2. The second footnote would direct attention to clause 37.4 for casual rates which apply to driveway attendants, console operators or roadhouse attendants.

[316] Clause 36 of the Exposure Draft details the percentage loading for casual employees excluding those engaged in vehicle sales related duties and driveway attendants, console operators and roadhouse attendants (the casual rates for these employees are specified in clauses 38.2 and 37.4 respectively). Clause 36 sets out the casual rates for all hours worked on any day of the week and for overtime. The clause specifies that the casual loading operates to the exclusion of any other loading in the award with employees being entitled to the highest loading specified where more than one loading applies.

[317] We consider the specification of a separate casual hourly rate column in clause 32 that does not apply to all hours worked and does not make clear the exclusion in circumstances where clause 36 clearly sets out the loading to be applied depending on the time of day the hours are worked, and the interaction with other loadings may result in confusion and users of the award may inadvertently apply incorrect loadings to casual employees. In these circumstances we consider it will make the award simpler to read and easy to understand if all matters associated with loadings to apply to casual employees are specified within the one clause. For this reason we have decided to delete the casual hourly rate column in clause 32.1. However, we will add a note to clause 32.1 indicating that casual loadings are set out at clause 36 of the Award. This will ensure there is no confusion as to the application of loadings for casual employees covered by this part of the award.

[318] For the same reasons the casual hourly rate column in clause 32.3 will also be deleted and a similar note included under the table.

Other matters

[319] The following changes shall also be made subject to any further determination by the VMRSR Award Full Bench, and they will be taken into account in relation to a further Exposure Draft to be issued by the VMRSR Award Full Bench:

● Clause 36.4 of the Exposure Draft relates to shiftwork penalties and not casual employees. It shall be moved to clause 35 which deals with shiftwork penalties and renumbered as clause 35.7.

● Additional clauses numbered 49.3 and 53.7 with associated text on the calculation of hourly rates have been inserted by error into clauses 49.2 and 53.6 respectively of the Exposure Draft. The clause numbers, heading and text will be deleted. The list of provisions to apply will be amended by adding ‘clause 12.2—Calculation of hourly rates’ with the remainder of each list re-numbered accordingly. The remainder of clauses 49 and 53 will be appropriately re-numbered.

Matter referred to Full Bench

[320] Except for common issues being dealt with by other Full Benches, the finalisation of the review of this award shall be referred to the VMRSR Award Full Bench. Submissions concerning the further Exposure Draft to be issued shall be considered by that Full Bench.

2.18 Wool, Storage, Sampling and Testing Award 2010

[321] An Exposure Draft of this award was published on 23 September 2014. Following a hearing on 17 November 2014 the Commission convened a conference of interested parties on 28 November 2014. A revised Exposure Draft was published on 8 December 2014, incorporating a number of technical amendments that were discussed and agreed to at the 28 November conference. Interested parties were provided a further opportunity to comment on the revised Exposure Draft.

[322] A number of issues relating to part-time employment and casual employment were raised as part of the review of this award. These issues have been referred to the Full Bench that has been constituted to deal with part-time employment and casual employment. 84

[323] There are three remaining issues that require determination:

Overtime method of calculation

[324] Clause 14 of the Exposure Draft deals with overtime. Clause 14.2 deals with the overtime rates applicable at various times. Clause 14.4 deals with the method of calculating overtime, it states:

‘(a) When computing overtime payments, each day or shift worked will stand alone.

(b) Any payments under clause 14.2 are in substitution for any other loadings or penalty rates’ (emphasis added)

[325] Ai Group submits that the reference to ‘any payments under clause 14.2’ should be replaced with ‘any payments under clause 13 or clause 14.2’. Clause 13 deals with penalty rates for shiftwork, weekend work and for ordinary hours worked on a public holiday.

[326] The AWU opposes Ai Group proposal. Both parties rely on the terms of the current modern award in support of their respective positions. Clause 25 of the current modern award provides as follows:

‘25. Overtime and penalty rates
25.1 Overtime payments—employees other than continuous shiftworkers
Except where provided otherwise in this clause, an employee (other than a continuous shiftworker) will be paid the following additional payments for all work done in addition to their ordinary hours:

(a) 50% of the ordinary hourly base rate of pay for the first two hours and 100% of the ordinary hourly base rate of pay thereafter, for overtime worked from Monday to 12.00 pm Saturday;
(b) 100% of the ordinary hourly base rate of pay for overtime worked after 12.00 pm on a Saturday and at any time on a Sunday; and
(c) 150% of the ordinary hourly base rate of pay for overtime worked on a public holiday.

25.2 An employee recalled to work overtime after leaving the employer’s premises (whether notified before or after leaving the premises) will be engaged to work for a minimum of four hours or will be paid for a minimum of four hours work in circumstances where the employee is engaged for a lesser period.
25.3 Overtime—continuous shiftworkers
A continuous shiftworker will be paid an additional payment for all work done in addition to ordinary hours of 100% of the ordinary hourly base rate of pay.
25.4 Method of calculation

(a) When computing overtime payments, each day or shift worked will stand alone.
(b) Any payments under this clause are in substitution for any other loadings or penalty rates.

25.5 Time off instead of payment for overtime

(a) An employee may elect, with the consent of the employer, to take time off instead of payment for overtime at a time or times agreed with the employer.
(b) The employee may take one hour of time off for each hour of overtime worked, paid at the employee’s ordinary hourly base rate of pay.

25.6 Shiftwork penalties

(a) A shiftworker or continuous shiftworker whilst on afternoon shift or night shift must be paid a loading of 15% of the ordinary hourly base rate of pay.
(b) A shiftworker or continuous shiftworker whilst on permanent night shift must be paid a loading of 30% of the ordinary hourly base rate of pay.

25.7 Weekend work

An employee will be paid the following loadings for ordinary hours worked on a Saturday or Sunday:
(a) 50% of the ordinary hourly base rate of pay for the first two hours and 100% of ordinary hourly base rate of pay thereafter, for ordinary hours worked at any time on a Saturday; and
(b) 100% of the ordinary hourly base rate of pay, for ordinary hours worked at any time on a Sunday.

25.8 The rate of pay referred to in clause 25.7(a) and 25.7(b) does not apply where the time worked forms part of the normal continuous hours in a normal shift.
25.9 Public holidays

An employee will be paid at the rate of 250% of the ordinary base rate of pay for any ordinary hours worked on a public holiday.’

[327] Ai Group relies on clause 25.4(b) of the current award and contends that clause 14.4(b) of the Exposure Draft only applies to overtime rates in clause 14 and that consistent with clause 25.4(b) of the current award should make it clear that the shiftwork, weekend work and public holiday penalties in clause 13 are in substitution for any other loadings or penalty rates.

[328] The AWU submits clause 25.4(b) in the current award only follows the provision on overtime and does not extend to shiftwork penalties, weekend work and public holidays, which come after clause 25.4(b). 85

[329] The resolution of this issue depends on the proper construction of clause 25.4(b) of the current award, which says:

‘Any payments under this clause are in substitution for any other loadings or penalty rates’ (emphasis added)

[330] The reference to ‘Any payments under this clause’ on a plain reading (without regard to context) may be taken to be a reference to:

- overtime payments under clauses 25.1, 25.2 and 25.3

- shiftwork penalties under clause 25.6

- weekend work loadings under clause 25.7

- the rate of pay for ordinary hours worked on a public holiday under clause 25.9

[331] However, the context suggests a somewhat narrower reading. The heading to clause 25.4(b) is ‘Method of calculation’ and having regard to the terms of clause 25.4(a) the clause heading is plainly a reference to the calculation of overtime payments. On this view the reference to ‘Any payments’ means any overtime payments under clauses 25.1, 25.2 and 25.3.

[332] Whatever may be the correct interpretation of ‘Any payments under this clause’ it is clear that such payments are ‘in substitution for’ any ‘other loadings or penalty rates’, that is, they are substitution for the loadings and penalty rates provided elsewhere in the award. In this regard we note that clause 10.3(b) of the current award provides for ‘casual loading of 25%’. It follows that if Ai Group’s proposed amendment is adopted then casual employees working, say, on weekends, would be entitled to the payments for weekend work under clause 25.7 but not the 25% casual loading provided in clause 10.3(b).

[333] The proposed amendment raises the general question of whether the casual loading is applied on top of other loadings or penalties. It seems clear that the current award provides that overtime payments are paid in substitution for the casual loading. However, it is not clear whether weekend and other penalties are paid in substitution for the casual loading or whether the casual loading is applied to the weekend penalty rate. Given the ambiguity in the current award this is essentially a merit issue and we will refer it to the Casual and Part-time Employment Full Bench in AM2014/197.

Rostering – employees other than shiftworkers

[334] The second issue in dispute concerns clause 8.3(a) of the Exposure Draft. Clause 8.3(a) deals with rostering for employees other than shiftworkers, it provides:

‘Subject to clause 22.2, an employer may vary an employee’s days of work or starting and finishing times to meet the needs of the business, by giving 48 hours’ notice or a shorter period as agreed between the employer and an individual employee.’(emphasis added)

[335] Clause 22.2 of the Exposure Draft deals with consultation about changes to an employee’s regular roster or ordinary hours of work, it says:

‘(a) Where an employer proposes to change an employee’s regular roster or ordinary hours of work, the employer must consult with the employee or employees affected and their representatives, if any, about the proposed change.

(b) The employer must:

(i) provide to the employee or employees affected and their representatives, if any, information about the proposed change (for example, information about the nature of the change to the employee’s regular roster or ordinary hours of work and when that change is proposed to commence);

(ii) invite the employee or employees affected and their representatives, if any, to give their views about the impact of the proposed change (including any impact in relation to their family or caring responsibilities); and

(iii) give consideration to any views about the impact of the proposed change that are given by the employee or employees concerned and/or their representatives.

(c) The requirement to consult under this clause does not apply where an employee has irregular, sporadic or unpredictable working hours.

(a) These provisions are to be read in conjunction with other award provisions concerning the scheduling of work and notice requirements.’

[336] Clause 22 of the Exposure Draft reflects the model consultation term inserted into all modern awards pursuant to s.145A of the FW Act.

[337] Section 145A was inserted into the FW Act by the Fair Work Amendment Act 2013 (Cth) (the 2013 Amendment Act) and provides that all modern awards must include a term requiring employers to consult employees about a change to their regular roster or ordinary hours of work. Section 145A states:

‘145A Consultation about changes to rosters or hours of work

(1) Without limiting paragraph 139(1)(j), a modern award must include a term that:

(a) requires the employer to consult employees about a change to their regular roster or ordinary hours of work; and

(b) allows for the representation of those employees for the purposes of that consultation.

(2) The term must require the employer:

(a) to provide information to the employees about the change; and

(b) to invite the employees to give their views about the impact of the change (including any impact in relation to their family or caring responsibilities); and

(c) to consider any views about the impact of the change that are given by the employees.’

The 2013 Amendment Act also inserted a new schedule into the FW Act, Schedule 4, which required the Commission to make a determination varying all modern awards by 31 December 2013, to include a term of the kind mentioned in s.145A. Further to a Full Bench decision issued on 23 December 2013 86 (the Consultation Term test case) such a determination was made inserting a model consultation term into all modern awards. The model term is set out at clause 8 of the current Wool Storage, Sampling and Testing Award 2010, and is reflected in clause 22 of the Exposure Draft.

[338] Ai Group submit that the commencing words of clause 8.6(a) - ‘Subject to clause 22.2’ - should be deleted as they are not in the current modern award and amount to a substantive change.

[339] The comparable provision in the current award is at clause 23.1 and it provides as follows:

‘Employees other than shiftworkers

An employer may vary an employee’s days of work or starting and finishing times to meet the needs of the business by giving 48 hours’ notice or such shorter period as is agreed between the employer and an individual employee.’

[340] Ai Group argue that the commencing words of clause 8.6(a) in the Exposure Draft impose a precondition whereby an employer is precluded from exercising its right to vary an employee’s days of work or starting and finishing times under the provision, unless and until it has fulfilled its obligations under the consultation clause found in clause 22.2 of the Exposure Draft. Ai Group submitted that clauses 22.2 and 8.2 give rise to separate and distinct rights and obligations and that there will be circumstances in which clause 22.2 will give rise to an obligation under clause 8.2, but that this will not necessarily be the case. It is submitted that the insertion of the words ‘subject to clause 22.2’ clause 8.6(a) deviates from the meaning and application of the current award. 87

[341] The AWU oppose the submission advanced by Ai Group and submit that the words ‘subject to clause 22.2’ should remain in clause 8.6(a) as it makes it clear that an employer must comply with its consultation obligations under clause 22.2 before varying an employee’s days of work or starting and finishing times under clause 8.6(a). 88

[342] The interaction between the model consultation term and other provisions in a modern award relating to the variation of rosters was considered in the Consultation Term test case. The relevant parts of the Full Bench decision are as follows:

‘[46] We now turn to the relationship between the obligation to consult required by the relevant term and other provisions within a modern award.

[47] A number of parties contended that the obligation to consult set out in the relevant term should be read subject to other provisions of the modern award such that the other provisions displaced the obligation to consult. An example serves to illustrate the proposition. If a modern award contained a provision which allowed an employer to vary an employee’s regular roster on the giving of a specified period of notice (say 7 days) then the obligation to consult imposed by the relevant term would not apply.

[48] We are not persuaded that the relevant term was intended to operate in the manner contended. As mentioned earlier, s.145A is not a source of power in that it does not confer a right on an employer to change an employee’s regular roster or ordinary hours of work. The source of such a power must be found elsewhere - either in the contract of employment or in an industrial instrument, such as a modern award. It is significant that s.145A was enacted against the background of existing provisions in modern awards which provide employers with the right to change an employee’s regular roster or ordinary hours of work. It is also significant that s.145A does not state that the obligation to consult is subject to any other provisions in a modern award.

[49] If the proposition advanced were accepted it would, to a significant extent, effectively render s.145A nugatory. The obligation to consult would have no operation in circumstances where the modern award entitled an employer to change an employee’s regular roster or ordinary hours of work. We are not persuaded that such a proposition is consistent with the terms of s.145A or its legislative purpose.

[50] Section 145A is intended to impose a new, additional obligation to consult employees in circumstances where their employer proposes to change their regular roster or ordinary hours of work. There is no conflict between the imposition of such an obligation and existing modern award provisions permitting the variation of a regular roster or ordinary hours of work on the giving of a specified period of notice or pursuant to a facilitative provision. There is no impediment to the employer complying with both provisions. The employer may still implement the proposed change on the giving of the requisite notice, but will now be required to consult the employees affected before implementing such a change. As we have mentioned such consultation must provide the affected employees with a genuine opportunity to attempt to persuade the employer to adopt a different course of action. For these reasons the relevant term will make it clear that it is to be read in conjunction with other award provisions concerning the scheduling of work and notice provisions.’ 89

[343] It is apparent from the above extract that the model consultation term was intended to impose an additional obligation on an employer to consult an employee in circumstances where the employer proposes to change the employee’s regular roster or ordinary hours of work. Applying this proposition to clause 8.3(a) of the Exposure Draft, an employer may still vary an employee’s days of work or starting and finishing times but only if the employer has consulted with the employees affected before implementing such a change. Such consultation must accord with the provisions of clause 22.2. It follows that the commencing words of clause 8.3(a) are appropriate and consistent with the intended interaction between the model consultation term and other provisions of the modern award. Accordingly, we reject Ai Group’s contention. Further, for the same reasons, the provisions for altering shifts in clause 8.6(b) are also subject to the obligation to consult in clause 22.2. Clause 8.6(b) of the Exposure Draft states:

8.6 Rostering

(b) Shiftworkers
(i) A shift system may be implemented by the employer and may be altered from time to time to meet the needs of the business in accordance with this clause.
(ii) The employer may carry out operations 24 hours per day, seven days of the week and implement and change roster systems to meet its operational requirements from time to time, having regard to the health and safety of employees.
(iii) Employees may be required to change between day work and shiftwork. An employee may be required to commence to perform or cease to perform shiftwork upon one week’s notice.
(iv) Where an employee is performing shiftwork, the employer may change shift rosters or require an employee to work a different shift roster upon 48 hours’ notice. These time periods may be reduced where agreed by the employer and the employee, or at the direction of the employer where operational circumstances require.
(v) The employer must, upon request by a directly affected employee, consult with directly affected employees about any changes made under this clause.

[344] Clause 8.6(b)(v) is inconsistent with the model consultation term in clause 22.2 insofar as the obligation to consult in clause 8.6(b)(v) is conditioned by the words ‘upon request by a directly affected employee’. There is no such limitation in clause 22.2. We will vary clause 8.6(b)(v) by replacing the words in the existing Exposure Draft with the following:

‘(v) Where an employer proposes to change an employee’s regular shift roster under this clause the employer must consult the employee or employees affected about the proposed change, as provided in clause 22.2.’

Part-time employment

[345] The final issue in dispute concerns part-time employment. Clause 14.1(b) of the Exposure Draft is as follows:

‘For a part-time employee, hours worked in addition to the employee’s ordinary hours (agreed in accordance with clause 6.3(c)) will be paid at the appropriate overtime rate.’

[346] Clause 6.3 of the Exposure Draft deals with part-time employees as follows:

6.3 Part-time employees

(a) A part-time employee:

(i) is engaged to work an average of less than 38 ordinary hours per week; and
(ii) receives, on a pro rata basis, equivalent pay and conditions to those of full-time employees who do the same kind of work.

(b) For each ordinary hour worked, a part-time employee must be paid the minimum hourly rate.
(c) An employer must inform a part-time employee of their ordinary hours of work and starting and finishing times.
(d) All time worked in excess of the hours mutually arranged will be overtime and paid for at the appropriate overtime rate.

[347] Ai Group submitted that clause 14.1(b) should be amended to read as follows: ‘For a part-time employee, overtime is defined by clause 6.3(d)’. 90

[348] The AWU submitted 91 that clauses 6.3(c) and (d) and 14.1(b) of the Exposure Draft are in conflict. Clause 6.3(c) imposes an obligation on the employer to inform the employee of their ordinary hours of work and starting and finishing times, whereas clause 6.3(d) provides that a part-time employee’s ordinary hours of work are to be ‘mutually arranged’. Further, clause 14.1(b) refers to ‘ordinary hours agreed in accordance with clause 6.3(c). The AWU argue that clause 6.3(c) does not refer to any form of agreement rather the agreement in respect of ordinary hours is referred to in clause 6.4(d). The AWU submit that clauses 6.3(c), 6.3(d) and 14.1(b) be varied as follows:

‘6.3(c): A the time of commencing employment, the employer and the part-time employee must agree in writing on the ordinary hours to be worked each week and the days these hours will be worked.’

‘6.3(d) The employer and a part-time employee may vary the regular number of ordinary hours by mutual agreement. This variation must be recorded in writing.’

‘14.1(b) For a part-time employee, hours worked in addition to the employee’s ordinary hours (agreed in accordance with clause 6.3(c) and 6.3(d)) will be paid at the appropriate overtime rate.’

[349] Clause 10.2 of the current modern award provides as follows:

10.2 Part-time employment

(a) A part-time employee is an employee who:

(i) is engaged to work an average of fewer than 38 ordinary hours per week; and
(ii) receives, on a pro rata basis, equivalent pay and conditions to those of full-time employees who do the same kind of work.

(b) For each ordinary hour worked, a part-time employee will be paid no less than 1/38th of the minimum weekly rate of pay for the relevant classification in clause 13 - Classifications and minimum wage rates.
(c) An employer must inform a part-time employee of the ordinary hours of work and starting and finishing times.
(d) All time worked in excess of the hours mutually arranged will be overtime and paid for at the appropriate overtime rate.

[350] Clause 25.1 of the current modern award provides that overtime is paid to an employee ‘for all work done in addition to their ordinary hours’ and sets out the overtime payments to be paid depending on the amount of overtime and when it is worked.

[351] As submitted by the AWU, there is a degree of tension between clause 10.2(c) and (d) of the current award in that it is not clear whether a part-time employee’s ordinary hours of work and start and finish times are to be mutually agreed between the employer and employee. The same tension is reflected in clauses 6.3(c) and (d) of the Exposure Draft.

[352] This issue will be referred to the Casual and Part-time Employment Full Bench in AM2014/196.

3. National Training Wage schedule

[353] In paragraphs 64–67 of the December 2014 decision we addressed some concerns raised by parties in relation to the proposed National Training Wage schedule with parties preferring the form of the Schedule remain as it currently stands. With a view to ensuring the schedule does not contain obsolete provisions, the Exposure Drafts posed two questions to parties upon which the Commission is seeking input.

[354] Parties were asked to comment on clause D.3.3 of the National Training Wage schedule in the current award which provides as follows:

“D.3.3 This schedule does not apply to the apprenticeship system or to any training program which applies to the same occupation and achieves essentially the same training outcome as an existing apprenticeship in an award as at 25 June 1997.”

[355] This provision has not been included in Schedule F of the Exposure Draft, but the parties were invited to identify any training program to which D.3.3 may still have application. No party was able to identify any such training program. Therefore the position remains that clause D.3.3 will not be included in the award in future.

[356] Parties with an interest in all modern awards have been asked to provide submissions on whether the lists of traineeships contained as the last clause within the National Training Wage schedule are complete and up-to-date. Very few submissions have been received on this issue. The Stevedoring employers submitted on 31 October 2014 that the traineeships currently referred to as ‘Transport and Distribution’ should be ‘Transport and Logistics’. They further submitted that this traineeship may be allocated to Certificate II, III and IV, but not Certificate I.

4. Next steps

[357] Revised Exposure Drafts for each award in Group 1C, 1D and 1E will be published by 30 October 2015.

[358] Parties are asked to provide feedback on the revised Exposure Drafts by 4.00 pm on 20 November 2015. Any reply material should be submitted by 4.00 pm on 4 December 2015. Feedback should be submitted in writing to amod@fwc.gov.au . It is the expectation of the Full Bench that these matters will be finalised on the papers.

PRESIDENT

Appearances:

J Dolan and T Clarke for the Australian Council of Trade Unions.

J Dolan for the United Firefighters Union, The Association of Professional Engineers, Scientists and Managers, Australia and the National Tertiary Education Union.

L Svendsen and M McClay for the Health Services Union of Australia.

B Ferguson, R Bhatt and G Vaccaro for the Australian Industry Group.

S Crawford and J Gherjestani for The Australian Workers’ Union.

S Taylor, A Moussa and J Moriarty for the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU).

S Maxwell, R Reid, A Borg and A Thomas for the Construction, Forestry, Mining and Energy Union.

E Cregan and K Scott for Australian Business Industrial and the New South Wales Business Chamber.

K Scott for the Australian Chamber of Commerce and Industry and Master Builders Australia Sydney.

S Forster for the Australian Federation of Employers and Industry.

D Harris and K Van Gogh for the South Australian Chamber of Commerce and Industry.

K Reid and B Pole for St John Ambulance Western Australia Ltd.

G Sealy for the Building Services Contractors Association of Australia.

M Vance, N Swancott and S Ball for United Voice.

M Travis for MSS Security.

C Delaney for the Australian Securities Association Ltd.

K Watson of counsel for the Australian Property Services Association.

R Dalton of counsel for the Real Estate Industry of Victoria.

T MacDonald for the Real Estate Employers Federation.

S Farrell for the Chamber of Commerce and Industry Western Australia and the Real Estate Employers Federation of Western Australia.

B Siebenhausen and R Milton for the Queensland Real Estate Industrial Organisation of Employers.

M Hart for the Concrete Masonry Association of Australia and Brickworks Limited.

V Wiles for the Textile Clothing and Footwear Union of Australia.

S McKinnon for the National Farmers Federation.

M Adler for the Housing Industry Association.

Hearing details:

2014.

Melbourne: (with video links to Sydney, Adelaide, Canberra, Perth and Brisbane)

November 17, 18, 19.

ATTACHMENT A—LIST OF AWARDS BY GROUP

Attachment A to Full Bench Decision of 17 March 2014 [2014] FWCFB 1788

Group 1 (30 awards)

Group 2 (19 awards)

Group 3 (33 awards)

Group 4 (40 awards)

 1   [2014] FWCFB 9412

 2   [2015] FWCFB 4658

 3   [2015] FWCFB 6656

 4   [2015] FWCFB 3023

 5   [2015] FWCFB 4466 and [2015] FWCFB 6847

 6   [2015] FWCFB 3406 and [2015] FWCFB 5771

 7   [2015] FWCFB 2575 and [2015] FWCFB 3523

 8   See Attachment A

 9   [2014] FWCFB 9412, [2015] FWCFB 4658, [2015] FWCFB 6656

 10   AM2008/44, Senior Deputy President Harrison, transcript 24 March 2009 PN96.

 11   AP780799CRV.

 12   AN140130.

 13   [2009] AIRCFB 450 at [153]-[154]

 14   [2009] AIRCFB 826

 15   See Ai Group reply submissions, 14 November 2014 at paragraphs 113-114.

 16   [2015] FWCFB 4658 at [47]

 17   Ai Group submission, 24 October 2014 at paragraphs 26-30

 18   [2015] FWCFB 6656

 19   Ibid at [70]

 20   [2015] FWCFB 6656

 21   [2015] FWCFB 6656 at [109]-[110]

 22   See Attachment B to the submission of AMWU dated 21 April 2015.

 23   Guide to Award Stage at paragraph 66

 24   Australian Federation of Employers and Industries and Association of Marine Park Tourism Operators, Submission on 4 yearly review of modern awards: Exposure Draft Awards - Groups 1C, 1D and 1E, [17].

 25   At clause 4 - Definitions

 26   AIMPE correspondence dated 4 July 2014

 27   [2015] FWCFB 579

 28   [2014] FWCFB 3202

 29   AMMA submission, 1 August 2008

 30   Transcript of 28 November 2014, at PN49-PN52.

 31   Ai Group submissions of 15 December 2014, at page 2.

 32   AMWU submissions of 25 November 2014, at page 1.

 33   See Ai Group submission of 15 December 2014 at page 2.

 34   AWU submissions of 23 October 2014, at page 2.

 35   See clause 10.6 of the Exposure Draft.

 36   AWU cites clause 24 of the AWU Drug and Pharmaceutical Industry Award, 2000 and clause 26 of the Drug Factories (State) Award in submissions of 23 October 2014 at page 2.

 37   See the AIRC Full Bench Statement regarding Group 3 Exposure Drafts on 22 May 2009, at [163] and NUW submissions of 6 March 2009 at page 16.

 38   Ai Group submissions of 12 November 2014, at pages 55-57.

 39   Ai Group cites the Manufacturing Chemists Award 1998 in submissions of 12 November 2014 at page 56.

 40   See AWU submissions of 23 October 2014, at page 2.

 41   See Transcript of 28 November 2014 at PN244.

 42   SDA submissions of 24 October 2014, at page 1.

 43   An amended version of the Exposure Draft was published on 8 December 2014.

 44   AWU submissions of 12 November 2014, at page 1.

 45   See ABI and the NSW Business Chamber submissions of 15 December 2014, at page 1.

 46   AWU submissions of 23 October 2014, at page 2-3.

 47   See Ai Group submission of 15 December 2014 at page 3.

 48   Transcript of 28 November 2014, at PN201.

 49   See ABI and NSW Business Chamber submission of 27 October 2014, page 3.

 50   See Ai Group submissions of 12 November 2014, at page 54; Ai Group submissions of15 December 2014, at page 2; AWU submissions of 12 November 2014, at page 2.

 51   ABI and NSW Business Chamber submissions of 15 December 2014, page 1.

 52   The following awards only make provision for weekly payment: Joinery and Building Trades Award 2010; Meat Industry Award 2010; Plumbing and Fire Sprinklers Award 2010; Road Transport (Long Distance Operations) Award 2010; Road Transport and Distribution Award 2010; Textile, Clothing Footwear and Associated Industries Award 2010; Waste Management Award 2010

 53   Guide to Award Stage at paragraph 56

 54   AP814932

 55   26 October 2009 Transcript PN387

 56   S.62(1)(a) of the Act

 57   This would not appear to be ‘inshore’ work

 58   AMMA written submission, June 2015 at paragraph 31

 59   [1947] SASR 162; also see Re Darling Harbour Development Project Industrial Agreement (1988) 27 IR 375

⁶⁰ PR556787

⁶¹ Issue 30 in the Summary of Submission document

⁶² Issues 29-35

⁶³ Issues 3, 16 and the ASU submission in 21

⁶⁴ Issues 2, 12, 14, 25, 27, and the RTBU submission in 28

⁶⁵ Issues 5, 7, 8, 9, Ai Group submissions in 21, 22, Ai Group submission in 23, and 24

⁶⁶ [2014] FWCFB 9412

 67   [2015] FWCFB 1729

 68   PR553229

 69   [2015] FWCFB 2831.

 70   [2014] FWCFB 9412.

 71   [2015] FWCFB 4658.

 72   TCFUA submission on Exposure Draft, 14 November 2014 at paragraph 12.

 73   TCFUA submission on Exposure Draft, 14 November 2014 at paragraphs 75-77.

 74   TCFUA submission on Exposure Draft, 14 November 2014 at paragraph 96.

 75   TCFUA submission on Exposure Draft, 14 November 2014 at paragraph 118 and 122.

 76   ABI and NSWBC submission in reply on Exposure Draft, 25 November 2015at paragraph 38.

 77   TCFUA correspondence 14 November 2014 at paragraphs 120–121

⁷⁸ PR552579

⁷⁹ Issues 1, 12, 13, 52 and 53

⁸⁰ [2014] FWCFB 9412

⁸¹ Issues 2, 3, 14, 19, 23, 28, 29, 31, 36, 42, 43 and 56

⁸² Issues 7, 9, 10, 11, and 13

⁸³ Issue 19

 84   The issues referred include the AWU submission that the word ‘ordinary’ be deleted from clause 6.4(c) of the Exposure Draft to ensure that the casual loading is paid on overtime.

 85   AWU submissions of 12 November 2014, at page 1 and of 5 December 2014, at page 1.

 86   [2013] FWCFB 10165 (footnotes omitted)

 87   See Ai Group’s submission dated 15 December 2014 at paras 4-12.

 88   See AWU submission dated 18 December 2014 at paras 7-8.

 89   [2013] FWCFB 10165

 90   See Ai Group’s submission dated 15 December 2014 at para 3.

 91   See AWU submission dated 18 December 2014 at paras 1-6.

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