| [2018] FWC 2761 |
| FAIR WORK COMMISSION |
STATEMENT |
Fair Work Act 2009
s.156 - 4 yearly review of modern awards
4 yearly review of modern awards – Restaurant Industry Award 2010 – Hospitality Industry (General) Award 2010
(AM2017/59 and AM2017/57)
JUSTICE ROSS, PRESIDENT |
MELBOURNE, 21 MAY 2018 |
Review of the Hospitality Industry (General) Award 2010 – review of the Restaurant Industry Award 2010 – substantive issues – directions.
[1] A mention was held on 1 May 2018 (the Mention) in relation to the substantive claims for the Hospitality Industry (General) Award 2010 (the Hospitality Award) and the Restaurant Industry Award 2010 (the Restaurant Award).
[2] The purpose of the Mention was to discuss draft directions setting out a timeline for the filing of submissions and hearing of the substantive matters being pursued in each award. Final directions will be published concurrently with this Statement. A Transcript of the Mention is available on the Commission’s website.
[3] In relation to the filing of submissions in response to these directions, parties are requested to base their submissions on the revised version of the plain language exposure draft as foreshadowed by [2018] FWCFB 2710 and [2018] FWCFB 2559.
[4] At the Mention it became apparent there is a degree of confusion regarding matters that are currently before the plain language Full Bench and matters that will be before the Full Bench hearing the substantive issues in relation to each award. This Statement seeks to clarify the matters that are before each Full Bench.
[5] The plain language Full Bench has commenced proceedings regarding the plain language re-drafting of both the Hospitality and Restaurant Awards (plain language technical and drafting matters). A summary of those matters is below.
[6] There are two outstanding technical and drafting matters that are before the plain language Full Bench in relation to the Restaurant Award. These are:
1. An issue relating to the breaks after working overtime (clauses 15.1(e) and 26.2 of the plain language exposure draft and clause 31.2(d) of the current Restaurant Award).
2. An issue relating to payment for travel time for distance work (clause 24.6 of the plain language exposure draft) and the meaning of ‘ordinary rate of pay’.
[7] The above issues are discussed in further detail in a Statement issued on 20 December 2017. 1 A decision relating to these two outstanding matters was issued on 21 May 2018.
[8] There are a number of outstanding technical and drafting matters that are before the plain language Full Bench in relation to the Hospitality Award, in particular:
1. An issue relating to payment of wages;
2. An issue relating to special leave arrangements for certain catering employees;
3. Issues relating to part-time employment;
4. Issues relating to breaks; and
5. Two issues relating to casual employment.
[9] A Decision in respect of these issues which set out the next steps was published on 21 May 2018.
[10] A summary of submissions document outlining the substantive claims sought in the Restaurant Award was published on 11 January 2018. The document outlines matters that are outstanding and those matters that have been resolved or dealt with by other Full Benches.
[11] A summary of submissions document outlining the substantive claims sought in the Hospitality Award was published on 11 January 2018. The document outlines matters that are outstanding and those matters that have been resolved or dealt with by other Full Benches.
[12] Three matters have been referred from the technical and drafting plain language Full Bench to the Full Bench dealing with the substantive issues:
1. A United Voice submission relating to the ‘working away from usual place allowance’;
2. An AHA submission relating to deductions for provision of employee accommodation and meals; and
3. An AHA submission relating to the fork-lift driver allowance.
[13] The summary of submissions document has been updated to reflect the matters outlined above at paragraph [12]. The updated summary will be published on the Commission’s website concurrently with this Statement.
[14] A decision was issued on 21 March 2018 2 in relation to the technical and drafting aspects for Group 4 awards in which the Full Bench said (at paragraphs [395] – [396]):
‘The technical and drafting matters in the Fast Food Industry Award 2010; the General Retail Industry Award 2010; the Hair and Beauty Industry Award 2010; the Hospitality Industry (General) Award 2010; and the Restaurant Industry Award 2010 have been referred to the Plain Language Full Bench to determine as part of the re-drafting process.
Any outstanding substantive matters will be dealt with by a separate Full Bench following the plain language process.’ 3
(endnotes omitted)
[15] The plain language process in relation to the Restaurant and Hospitality Awards is well progressed, and parties have been afforded adequate time in the directions to file their submissions regarding the substantive matters. In these circumstances the process for determining the substantive issues will proceed prior to the finalisation of the plain language process.
[16] If there are any substantive claims that parties wish to pursue that are not currently contained in the attached summary of submissions documents (for either the Restaurant or Hospitality Awards), parties are to advise the Commission in writing no later than 4.00 pm, Wednesday 30 May 2018.
PRESIDENT
Printed by authority of the Commonwealth Government Printer
<PR607156>
3 Ibid at [395] – [396]