DECISION

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

4 yearly review of modern awards—Award stage—Group 4 awards
(AM2014/250 and others)

4 yearly review of modern awards – award stage – exposure drafts – Group 4 awards – technical and drafting matters – substantive matters.

CONTENTS

ABBREVIATIONS

1. Introduction

[1] Section 156 of the Fair Work Act 2009 (the Fair Work Act) requires the Fair Work Commission (the Commission) to review all modern awards every four years (the Review). In the Award stage of the Review the 122 modern awards have been divided into 4 groups. This decision deals with the technical and drafting issues arising out of the awards in Group  4. 1 This decision also addresses a number of substantive issues that have arisen during the course of proceedings about the Group 4 awards. The awards allocated to Group 4 are listed at Attachment A to this decision, and are divided into give subgroups (4A–4E).

[2] This decision should be read in conjunction with earlier decisions and statements concerning the Review, and in particular the decisions of 23 December 2014 2 (December 2014 decision), 13 July 20153 (July 2015 decision) and 30 September 20154 (September 2015 decision) and the Group 3 Decisions5 in which the Commission dealt with a number of general drafting and technical issues common to multiple exposure drafts.

1.1 Review of Group 4 awards

[3] The Commission published exposure drafts of the Group 4A–C awards between May and June 2016 and Group 4D–E in November 2016. The exposure drafts were published concurrently with comparison documents showing the changes made to the structure and language in the award. Interested parties were given an opportunity to make written submissions on the exposure drafts and to reply to the submissions of others. At the request of the interested parties, further conferences were held to deal with a range of award-specific matters prior to hearings before the Full Bench.

[4] A hearing was held before the Full Bench on 6 December 2016 to deal with the technical and drafting issues which have been identified in relation to the Group 4 exposure drafts. The purpose of the hearing was:

•  to confirm published summaries of submissions were accurate and reflected the position of the interested parties;

•  to identify any submissions or variations which are now agreed or have been withdrawn; and

•  to identify any matters which were of a substantive nature and had not yet been referred to a specially constituted Full Bench.

[5] Further conferences were conducted by individual Members and a number of substantive matters were referred to separately constituted Full Benches for determination.

[6] A separately constituted Full Bench has considered the technical and drafting issues and the substantive issues in the Building and Construction General On-site Award 2010, 6 the Joinery and Building Trades Award 20107 and the Mobile Crane Hiring Award 20108 and the substantive issues in the Plumbing and Fire Sprinklers Award 20109 (Construction Group). It only remains for this Full Bench to review the technical and drafting issues in the Plumbing and Fire Sprinklers Award 2010. These issues are dealt with at [232] and [583].

[7] The technical and drafting issues in Group 4 awards, along with a number of changes sought by interested parties (other than substantive changes requiring extensive evidence) are dealt with in this decision. Where interested parties have reached an agreed position, we have generally determined in favour of the agreed position, save where it is inconsistent with earlier Full Bench decisions, including earlier award stage decisions, common issues decisions and established plain language drafting principles.

[8] We now turn to each award under review in turn.

2. Awards under review

2.1 Aboriginal Community Controlled Health Services Award 2010

[9] On 17 May 2016, the Commission published an initial exposure draft based on the Aboriginal Community Controlled Health Services Award 2010 10 (Aboriginal Community Health Award) together with a comparison document showing the changes made to the structure and language in the award. Interested parties were provided with an opportunity to file written submissions and submissions in reply on the substantive and technical and drafting issues in the exposure draft. Submissions were received from the following parties:

•  Health Service Union of Australia (HSU);

•  United Voice (UV);

•  National Aboriginal and Torres Strait Islander Health Worker Association (NATSIHWA); and

•  Australian Business Industrial and the New South Wales Business Chamber (ABI)

[10] A draft report was published on 20 February 2017 setting out the matters dealt with at a conference held on 8 February 2017. A number of issues were resolved at the conference. Updated draft reports were published on 19 April, 9 May and 21 June 2017. A revised exposure draft along with a revised summary of submissions was published on 24 May 2017. The draft report of 21 June 2017 called for further comments. A further revised exposure draft and summary of submissions in relation to the substantive issues was published on 18 July 2017.

[11] A final Report to the Full Bench was published on 4 September 2017. Updated summaries of submissions were published for the technical and drafting matters and the substantive issues on 20 November 2017. It is apparent that a number of technical and drafting matters and substantive issues have been resolved amongst the interested parties. We will adopt the agreed variations set out in the Report and the exposure draft will be updated accordingly.

[12] There are a number of matters that remained unresolved and these are set out below.

Technical and drafting matters

Item 13 – Ordinary hours of work

[13] Item 13 of the revised summary of submissions relates to the wording of clause 13.2 of the exposure draft which states:

‘13.2 No more than 10 ordinary hours of work (exclusive of meal breaks) may be worked in any one day.’

[14] In submissions dated 30 June 2016, 11 the HSU submitted that the change of words in clause 13.2 of the exposure draft alters the existing award entitlement. It is submitted that the clause, as it currently stands, says an employee cannot work more than ten ordinary hours in a day. The HSU submitted that if an employee worked in excess of ten hours, it would lead to overtime even if they are rostered for a longer shift12 and the HSU submitted that the word ‘may’ is less imperative that the expression ‘are to be’ in the current award.13 The HSU submitted that, if the wording is required to be changed, it should read:14

‘13.2 No more than 10 ordinary hours of work (exclusive of meal breaks) can be worked in any one day.’

(emphasis added)

[15] The Australian Federation of Employers and Industries (AFEI) did not oppose the wording proposed by the HSU. 15

[16] We have decided to make the change to the exposure draft to reflect the wording proposed as it provides clarity as to when overtime is payable.

[17] In submissions dated 30 June 2016, the HSU further submitted that the heading ‘Span of hours’ should be reinstated at clause 13.3 of the exposure draft. 16 The HSU submitted that the ‘span of hours’ is referred to in clause 19.1(a)(ii) and Schedule B of the exposure draft.17 Those attending the conference on 8 February 2017 did not oppose the reinstatement of the heading and it was confirmed at the hearing that the exposure draft will be amended to rectify the error.18

Substantive issues

Item S2 – Education and training

[18] Item S2 of the summary of submissions relates to the education and training of Aboriginal and Torres Strait Islander Health Workers (ATSIHWs). In submissions dated 6 March 2015, NATSIHWA submits that ATSIHWs play a vital role in the provision of accessible and culturally relevant health services to Australia’s indigenous population and that these employees are often not remunerated or trained at a level commensurate with the tasks they are required to perform. 19 NATSIHWA submitted that Aboriginal Community Health Award should be amended to incentivise ATSIHWs participation in ongoing further education and training.20 NATSIHWA submitted a re-drafted version of Schedule A.21

[19] AFEI responded to the draft and expressed concern about the phrasing proposed by NATSIHWA because it could create uncertainty for employers.

[20] We agree that the amendments proposed by NATSIHWA would be a substantive change to the Aboriginal Community Health Award. If NATSIHWA wishes to pursue the proposed change as a substantive variation it may do so in accordance with the process set out, see Next steps below.

Item S3 – Coverage

[21] Item S3 is the NATSIHWA proposal to expand the coverage of the Aboriginal Community Health Award to include Aboriginal and Torres Strait Islander health workers. The proposal was not opposed by the unions; but was opposed by AFEI and ABI. The objections are based on concerns that the change may create an overlap in coverage because health workers who are not employed by an aboriginal community health organisations may already be covered by another modern award, for example, the Health Professionals and Support Services Award 2010 22 (Health Professionals Award).

[22] The Commission wrote to interested parties on 8 September 2017 to seek clarification about how the terminology change agreed to under item S1 could be adopted in light of the objections raised to item S3. 23

[23] NATSIHWA responded by confirming that the title and coverage of the Aboriginal Community Health Award should not be varied pending the outcome of the substantive claim to vary coverage. 24 It also clarified which instances of the word ‘Aboriginal’ should be substituted with ‘Aboriginal and/or Torres Strait Islander’.

[24] The exposure draft will be varied to substitute ‘Aboriginal’ with ‘Aboriginal and/or Torres Strait Islander’ as per the NATSIHWA’s submission. No other variations will be made to the title or coverage, pending determination of the substantive matter. When the exposure draft is updated, interested parties will be invited to comment on whether the substitutions have been incorporated accurately. Further directions about Item S3 are set out in the Next steps below.

Item S6 – Minimum wages

[25] Item S6 is a proposed amendment to the minimum wages structure. The interested parties have not reached an agreed position on whether to vary the wage structure and the applicable rates for each classification. In the absence of agreement we do not intend to vary the wage structure in the exposure draft.

Items S7, S8 and S9 – Allowances

[26] Items S7, S8 and S9 list proposed additions to the allowances clause. In Item S7 the proposal regarding damaged clothing allowance, blood check allowance, telephone allowance and nauseous work allowance was agreed between the interested parties. However, the interested parties have not agreed to the proposed occasional interpreting allowance, heat allowance or medication administration allowance. None of the allowances suggested in S8 and S9 have been agreed to.

[27] It appears that NATSIHWA has generally sought to replicate the allowances currently appearing in the Health Professionals Award. It is not clear on what basis some allowances have been agreed to and others have not. In the absence of agreement between the interested parties we do not intend to include the additional allowances mentioned in items S7, S8 or S9.

Items S17A and S18 – Ceremonial leave

[28] Items S17A and S18 concern variations to the ceremonial leave provisions. The variations are opposed by the ABI and AFEI. The current exposure draft clause is:

‘26. Ceremonial leave

An employee who is legitimately required by indigenous tradition to be absent from work for Aboriginal or Torres Strait Islander ceremonial purposes will be entitled to up to 10 working days unpaid leave in any one year, with the approval of the employer.’

[29] The variation proposed by NATSIHWA is:

‘An employee who is legitimately required by indigenous tradition to be absent from work for Aboriginal or Torres Strait Islander ceremonial purposes, including for bereavement related ceremonies and obligations, will be entitled to up to 10 working days unpaid leave in any one year, with the approval of the employer.’

[30] In correspondence dated 26 April 2017, ABI advised that they did not oppose the variation sought to the ceremonial leave provision. 25 At the subsequent conference ABI’s representative advised that ABI opposed the variation.26 The Commission wrote to interested parties on 8 September 2017 to seek clarification about whether the variation was opposed or supported.27 ABI subsequently confirmed that they oppose the variation.28

[31] In the absence of any agreement between the interested parties, the variation will not be made to the exposure draft. If the variation is sought, it must be pursued as a substantive variation, see Next steps below.

[32] There are no other outstanding issues for this Full Bench to determine with regards to the Aboriginal Community Health Award.

2.2 Aged Care Award 2010

[33] An exposure draft based on the Aged Care Award 2010 29 (Aged Care Award) was published on 19 May 2016. A summary of submissions about technical and drafting matters was subsequently published on 30 November 2016. An initial hearing was held on 6 December 2016 to discuss the submissions received. Australian Industry Group (Ai Group), the HSU, AFEI, Leading Aged Services Australia Limited, Aged and Community Services, Australian Nursing and Midwifery Federation (ANMF) and South Australian Employers’ Chamber of Commerce and Industry Inc trading as Business SA (Business SA) appeared at the Hearing.

[34] A number of matters were resolved at the initial hearing. The outstanding matters were subject of consideration at further conferences. Commissioner Lee issued a Final Report to the Full Bench about the Aged Care Award on 17 March 2017. A revised exposure draft was republished on 10 July 2017.

[35] Updated summaries of submissions were published for the technical and drafting matters and the substantive issues on 20 November 2017. A further Report about the substantive matters was issued on 8 December 2017. We are satisfied that it is appropriate to make the changes agreed to by the interested parties, as outlined in the Reports.

[36] There remain a number of unresolved issues for determination.

Item 21 – Sleepovers

[37] Item 21 regarding sleepovers remains unresolved. The HSU or Ai Group can make further submissions about the wording of the clause if either wish to pursue the matter, see the Next steps below.

Item 47 – Shiftwork

[38] Item 47 regarding shiftwork terminology has been considered in the first Group 3 decision and the exposure draft will be updated according to the Group 3 Full Bench’s view. A number of terminology issues have also been referred to the Plain Language process for further consideration.

Items 50–52 – Rest period after overtime

[39] Items 50–52 were discussed further at a conference on 6 February 2017. The interested parties agreed to vary the exposure draft as by reverting back to the current award wording subject to some drafting amendments:

‘22.4 Rest period after overtime

(a) An employee, other than a casual, who works so much overtime between the termination of their ordinary work on any day or shift and the commencement of their ordinary work on the next day or shift, that they have not had at least 10 consecutive hours off duty between those times, will be released after completion of such overtime until they have had 10 consecutive hours off duty without loss of pay for rostered ordinary hours occurring during such absence.

(b) If on the instructions of the employer, such an employee resumes or continues work without having had 10 consecutive hours off duty, they will be paid 200% of the ordinary hourly rate until they are released from duty for such rest period and they will then be entitled to be absent until they have had 10 consecutive hours off duty without loss of pay for rostered ordinary hours occurring during such absence.’

[40] The exposure draft will be varied as per the re-drafted clause 22.4 above.

[41] The substantive matters in this award will be referred to a separate Full Bench to consider and determine.

[42] There are no other outstanding issues for this Full Bench to determine with regards to the Aged Care Award.

2.3 Air Pilots Award 2010

[43] On 2 June 2016 the Commission published an initial exposure draft based on the Air Pilots Award 2010 30 (Air Pilots Award) together with a comparison document showing changes made to the structure and drafting of the Award. Interested parties were invited to file written submissions and submissions in reply on technical and drafting issues in the exposure draft.

[44] Submissions were received from the following parties:

•  Aerial Application Association of Australia (AAAA);

•  Australian Federation of Air Pilots (AFAP);

•  The Australian Industry Group (Ai Group); and

•  Qantas Group (Qantas).

[45] A conference was held on 9 February 2017 at which the interested parties advised that a number of technical and drafting issues had been withdrawn or agreed. 31 A further conference was held on 17 August 201732 and a further revised exposure draft was published on 7 September 2017 incorporating changes agreed by the parties.

[46] A final report was published on 7 December 2017 summarising the status of these issues. We are satisfied that it is appropriate to implement the changes agreed to by the interested parties as outlined in the report.

[47] A number of technical and drafting items remain outstanding and require determination or clarification.

Technical and drafting issues

Item 12 – Probation

[48] The Commission asked the interested parties if the last sentence of clause 8.2 of the exposure draft should be retained:

‘8.2 At the time of engagement an employer will inform each pilot of the terms of their engagement and in particular whether they are to be full-time, part-time or casual. The employer will also advise the pilot about the duration of any probation period, which will not be greater than six months.’

(emphasis added)

[49] The AFAP submitted the sentence should remain. Qantas submitted the sentence should be deleted, but noted that it would not oppose its retention.

[50] The concept of ‘probation’ was considered in a previous Full Bench decision in relation to the Mining Industry Award 2010. 33 The Full Bench expressed the following provisional view:

‘[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.’ 34

(emphasis added)

[51] There has been no concluded view expressed about whether the inclusion of a probationary period is in fact inconsistent with legislative entitlements and obligations. In our view, the inclusion of probation periods may create ambiguity or uncertainty about an employee’s eligibility to dispute a dismissal and an employer’s capacity to object to such an application. On that basis, the exposure draft will be updated to remove the reference to a probation period as follows:

8.2 At the time of engagement an employer will inform each pilot of the terms of their engagement and in particular whether they are to be full-time, part-time or casual.

Item 13 – Casual employment

[52] In correspondence dated 5 September 2017, Qantas on behalf of AFAP and Ai Group advised item 13 was agreed and no changes to the Exposure Draft were required. On that basis, no change will be made to the exposure draft.

Item 34 – Summary of hourly rates of pay and Summary of monetary allowances

[53] AFAP submitted that the table in clause E.2.1 of the exposure draft should be varied to include the applicable “additions to salary” for casuals. 35 AFAP provided a draft table for comment. At a conference, Qantas confirmed that it did not oppose the AFAP’s variation, 36 however it indicated in written correspondence that it does not consider it a necessary change.37 Ai Group concurred with Qantas that the variation proposed by AFAP is not necessary. Ai Group further submitted that “Schedule E and F are to be read in conjunction with the substantive terms of the instrument, including Schedule A” and submitted that it was “concerned that the insertion of numerous notes or references may result in a schedule that is confusing and unwieldly”.38

[54] The term “addition to salary” is a defined term in the current award and exposure draft and is defined as “a payment in addition to the pilot’s minimum salary, which is regarded as salary for all purposes as if part of salary, other than the payment of commission for aerial application operations.”

[55] Additions to salary are set out in the exposure draft at Schedule A (in relation to Airlines/General Aviation employees), Schedule B (in relation to Regional Airline employees), Schedule C (Sector Specific Conditions – Aerial Application Operations) and Schedule D (Sector Specific Conditions – Helicopter Operations).

[56] The variation sought by the AFAP relates only to Airlines/General Aviation casual employees, as set out in Schedule A. Casual employment is described at clause 9 of the exposure draft. Clauses 9.2 and 9.3 of the exposure draft state that:

‘9.2 A casual pilot will be paid per flying hour at the rate of 1/800th of the annual salary prescribed for the class of work performed (including additions to salary).

9.3 A casual pilot will be paid an amount of 25% for each hour in addition to the amount in clause 9.2. This loading is instead of entitlements to leave and other matters from which casuals are excluded by the terms of this award and the NES.’

[57] AFAP has not provided specific submissions in support of its proposed variation. It is unclear why the variation is sought in relation to Schedule A only - to the exclusion of Schedules B, C and D.

[58] The issue of additions to salary is a complex one. We agree with the submissions of Ai Group that the insertion as sought by the AFAP may result in a schedule that is confusing and excessively lengthy. The “additions to salary” which are prescribed in Schedule A are also found at Schedule F expressed as per annum amounts.

[59] We have decided to refuse the variation as sought. However, while we do not agree to the insertion of a new table at clause E.2.1, as proposed by the AFAP, we propose providing the parties with the opportunity to consider whether the issue of hourly rates of pay for casual employees (inclusive of any additions to salary) may be dealt with by way of an example within the Air Pilots Award. A similar approach has been adopted in clause 7.2 of the exposure draft for the Educational Services (Schools) General Staff Award. 39

[60] The parties are invited to consider whether an example would provide clarity regarding the calculation of hourly rates for casual employees under the award. The following example has been prepared for consideration by the interested parties:

[61] Comments on the example provided should be provided by 19 April 2018, see the Next steps below.

Item 37 – Consumer price index figure

[62] In the exposure draft, the Commission raised a question about whether the applicable consumer price index (CPI) figure in clause D.6.6(c)(i) should be included in clause F.3.1(b).

[63] AFAP did not oppose the inclusion of the CPI figure. 40 Ai Group advised that it did not seek to advance a position on this item.41

[64] In the absence of any objection, the exposure draft will be varied to include the “Domestic holiday travel and accommodation sub-group” in the CPI table.

Substantive matters

[65] In its correspondence dated 5 September 2017, Qantas on behalf of the AFAP and Ai Group advised item S3 was agreed and no changes to the Exposure Draft were required.

[66] Two substantive matters, items S1 and S2, remain outstanding and will require consideration by a separate Full Bench.

[67] There are no other matters for this Full Bench to determine with regards to the Air Pilots Award.

2.4 Aircraft Cabin Crew Award 2010

[68] An exposure draft based on the Aircraft Cabin Crew Award 2010 42 (Aircraft Cabin Crew Award) was published on 1 June 2016, accompanied by a comparison document showing the structural and drafting changes made. Submissions relating to technical and drafting issues in the exposure draft were received from Qantas and Ai Group.

[69] An updated exposure draft was published on 5 January 2017. Conferences were held before Deputy President Gostencnik on 9 February 2017 and 17 August 2017. 43 At the 9 February conference, the interested parties advised a number of issues had been agreed or withdrawn.

[70] At the 17 August conference, Qantas advised the only outstanding issue was item 9. Ai Group was requested on the transcript to advise the Commission by 8 September if it had a contrary view in relation to the status of item 9.

[71] An updated summary of submissions was published for the technical and drafting matters on 23 August 2017. An updated summary of substantive matters was published on 13 November 2017.

[72] A final report was published on 7 December 2017 summarising the status of each item.

[73] We agree that the technical and drafting changes agreed by the interested parties should be made.

[74] There is one remaining technical and drafting matter item that requires determination by this Full Bench.

Technical and drafting matter

Item 9 – Annual leave

[75] Ai Group raised concerns regarding the practical application of the annual leave model clauses in the Aircraft Cabin Crew Award. 44 Qantas confirmed its position at a conference in August 2017 by reference to inter-party communications.45 Ai Group subsequently confirmed its agreement with the Qantas position.46

[76] Qantas is directed to provide the Commission with a copy of its draft so that the exposure draft can be updated according to the agreed position, see the Next steps below.

[77] The exposure draft will be updated and republished. Interested parties will have a further opportunity to comment. The updated exposure draft will incorporate Qantas’ proposal in respect to Item 9 – Annual leave, but that should not be taken as indicating our view in respect of this issue.

Substantive issues

[78] All of the substantive matters remain outstanding and would need to be considered by a separate Full Bench. Interested parties are directed to advise the Commission about whether they intend to pursue these substantive matters by 19 April 2018, see the Next steps below.

[79] There are no other outstanding issues for this Full Bench to determine with regards to the Aircraft Cabin Crew Award.

2.5 Airline Operations—Ground Staff Award 2010

[80] An exposure draft based on the Airline Operations—Ground Staff Award 2010 47 (Airline Operations Award) was published on 2 June 2016, accompanied by a comparison document showing the structural and drafting changes made. Submissions relating to technical and drafting issues in the exposure draft were received from the following parties:

•  Transport Workers’ Union of Australia (TWU);

•  Qantas;

•  The Australian Workers’ Union (AWU);

•  The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU);

•  Australian Services Union (ASU); and

•  Ai Group.

[81] A hearing was held on 6 December 2016 in Sydney. A revised exposure draft was published on 4 January 2017. A conference was held on 2 February 2017 in Sydney. At the conference the parties advised a number of items had been agreed or withdrawn. Ai Group requested further time to hold discussions with a view to resolving the outstanding issues or narrowing the scope of any contest between the interested parties. 48

[82] A draft report summarising the technical and drafting issues was published on 5 October 2017. Interested parties were invited to comment on the accuracy of the report and advise of any outstanding items that required determination. A final report was subsequently published on 14 November 2017. An updated summary of submissions was published on 23 November 2017.

[83] Items that were agreed between the interested parties will be adopted and the relevant changes made to the revised exposure draft. There remain a number of outstanding items to be determined.

Technical and Drafting matters

Item 8 – Part-time day workers

[84] AWU submitted that cross-referencing clauses 7.4 and 15.1 in clause 10.2(b) of the exposure draft does not accurately reflect the operation of those clauses because clause 7.4 is only a list of facilitative provisions. 49

[85] The AMWU submitted the following draft variation to clause 10.2 of the exposure draft: 50

‘10.2 Part-time day workers

(a) At the time of engagement or appointment of an employee as a day worker, the employer and the part-time employee will agree in writing on a regular pattern of work, specifying:

(i) the guaranteed minimum number of ordinary hours to be worked per week; or

(ii) which days of the week the employee will work and the actual starting and finishing times each day.

(b) Changes in hours to a written agreement made under clause 10.2(a)(i) above, Subject to the employer’s rights in clauses 7.4 and 15.1 to change an employee’s hours of work, changes in hours may only be made by agreement in writing between the employer and employee, subject to the employer’s rights in clauses 7.4 and 15.1. Subject to clause 31, changes in days can be made by the employer giving one week’s notice in advance of the changed hours.

(c) Changes in hours to a written agreement made under 10.2(a)(ii) above, may only be made by agreement in writing between the employer and the employee, subject to the employer’ rights in clauses 7.4 and 14.2(c).

(d) All time worked in excess of the ordinary daily hours mutually arranged will be overtime and paid for at the appropriate overtime rate.’

[86] Ai Group and Qantas oppose the AWU and the AMWU’s submissions on the basis that the exposure draft reflects the current award clause. The reference to clause 7.4 is said to be relevant because it provides a summary list of the facilitative provisions which can be utilised upon agreement between the employer and a majority of employees in the workplace or part of it. 51

[87] In the absence of any agreement between the interested parties we so no reason to deviate from the drafting of the current modern award. No change will be made to the exposure draft.

Items 10 and 11 – Casual employment

[88] Ai Group submitted that the definition of a casual employee in the exposure draft should be replaced by the wording in the current award.

[89] The current award states:

‘11.5 Casual employment

(a) A casual employee is an employee engaged as such.

(b) A casual employee must be paid per hour at the rate of 1/38th of the weekly rate prescribed for the class of work performed, plus 25%. This loading is instead of entitlements to leave and other matters from which casuals are excluded by the terms of this award and the NES.

(c) Casual employees must be paid at the termination of each engagement, or weekly or fortnightly in accordance with usual payment methods for full-time employees.

(d) Casual employees are entitled to a minimum payment of four hours work at the appropriate rate.’

[90] The casual employment clause in the exposure draft is currently drafted as follows:

‘11. Casual employment

11.1 A casual employee is an employee engaged on a casual basis.

11.2 A casual employee must be paid the ordinary hourly rate prescribed for the class of work performed, plus 25%. This loading is instead of entitlements to leave and other matters from which casuals are excluded by the terms of this award and the NES.

(emphasis added)

11.3 Casual employees are entitled to a minimum payment of four hours’ work at the appropriate rate. Casual employees are entitled to a minimum payment of four hours’ work at the appropriate rate on each occasion they are required to attend work.’

[91] We agree that the exposure draft has made an unnecessary drafting change to the definition of a casual employee. It is appropriate to revert back the current definition and vary the exposure draft as follows:

‘11.1 A casual employee is an employee engaged as such.’

[92] Ai Group further submitted that the definition of casual loading in clause 11.2 of the exposure draft changes the entitlements established in the modern award because it is calculated on the ordinary rate of pay inclusive of any all purpose allowance.

[93] In a previous Full Bench decision regarding the calculation of the casual loading, the Full Bench explained: 52

‘[84] However, in the case of modern awards containing any allowance characterised as all purpose in nature, the exposure draft has provided that a casual employee must be paid the ordinary hourly rate and in addition a loading of 25% of the ordinary hourly rate. Because the ordinary hourly rate (as distinct from the minimum hourly rate) includes any all purpose allowance, the consequence of this is that the 25% loading is payable on any such all purpose allowance.’

[94] We do not intend to deviate from the established principles regarding casual loadings and all purpose allowances. The casual loading in the Airline Operations Award is accurately described as being applied to the “ordinary hourly rate” and not the minimum. No change will be made to clause 11.2 of the exposure draft.

Item 15 – Ordinary hours of work – day work

[95] The AMWU submitted that the ordinary hours of work clause should be varied to include a reference to the consultation clause and the AMWU proposes the following amendment:  53 

‘14.2(c) The ordinary hours of work are to be worked continuously, except for meal breaks at the employer’s discretion, subject to Clause 31, of the employer between 7.00am and 6.00pm. The spread of hours may be altered by up to one hour at either end of the spread, by agreement between an employer and the majority of employees concerned.’   

[96] Ai Group did not state a position in response to the AMWU submission, but indicated that it may seek a further opportunity to make submissions on this matter. 54

[97] This issue was previously considered by the Full Bench reviewing the Group 1 awards. In relation to the Manufacturing and Associated Industries and Occupations Award 2010, 55 the Full Bench determined:56

‘[11] We are satisfied that the inclusion of a reference to clause 40.2 (renumbered 41.2) in a clause which otherwise suggests the employer retains the sole discretion to alter hours of work will avoid confusion. However, we do not consider the change proposed by AMWU achieves what it sets out to do.

[12] We have decided to amend clause 13.2(d) by adding an additional sentence to the end of the clause that reads ‘Any change to rosters or hours of work is subject to the consultative provisions in clause 41.2.’

(emphasis added)

[98] Consistent with the previous Full Bench decision, we intend to make a similar change to clause 14.2(c) of the Airline Operations Award exposure draft as follows:

‘The ordinary hours of work are to be worked continuously, except for meal breaks, at the discretion of the employer between 7.00 am and 6.00 pm. The spread of hours may be altered by up to one hour at either end of the spread, by agreement between an employer and the majority of employees concerned. Any change to rosters or hours of work is subject to the consultative provisions in clause 31.’

[99] Interested parties have until 19 April 2018 to respond to this provisional view, see the Next steps below.

Item 30 – Apprentice minimum weekly wages

[100] In their submission of 30 June 2016, the AWU outlined in relation to clause 18.5(b)(ii) of the exposure draft, the reference to ‘ordinary weekly wage rate’ should be changed to ‘ordinary hourly rate’ for consistency with clause 18.5(a)(i). 57

[101] Clause 18.5(b)(ii) of the exposure draft is set out as follows:

‘(ii) The minimum wage for an apprentice who commences an AQF III qualification outcome apprenticeship on or after 1 January 2014 are as set out in the following table (except as otherwise provided for in clause 16.3 18.5(c)—Adult apprentice minimum wages for current employees). The percentages are of the ordinary weekly wage rate prescribed in clause 15.3 18.3 for a Tradesperson.’

[102] Clause 18.5(a)(i) of the exposure draft is set out as follows:

‘(i) For apprentices who commenced an AQF IV qualification outcome the percentages are of the ordinary hourly rate prescribed in clause 18.3 for an Aircraft Maintenance Engineer.’

[103] The Ai Group noted at the conference held on 2 February 2017 they did not have any difficulty with what is being proposed by the AWU, however went on to note that the words ‘clause 18.3, which is the cross reference, does not in fact prescribe ordinary hourly rates. It only prescribes minimal hourly rates. It seems anomalous to say that the percentages are of the ordinary hourly rates prescribed in clause 18.3 when 18.3 does not in fact prescribe those rates.’ 58 Ai Group went on to suggest that the exposure draft ‘can be left as is.’59

[104] The AWU noted that it would give consideration to the option of leaving the exposure draft as it is currently drafted. 60

[105] In its written report to the Commission, following discussions among interested parties, Ai Group advised the interested parties agree that the words ‘prescribed in clause 18.3’ should be deleted from clauses 18.5(a)(i), 18.5(a)(ii) and 18.5(b)(ii).

[106] In the Ai Group’s written report there was no reference to any agreement being reached about whether references to ‘ordinary weekly wage rate’ in clause 18.5(b)(ii) should be ‘ordinary hourly rate’ for consistency with clause 18.5(a)(i).

[107] We have decided to make the change agreed to by the parties, that is, to delete the words ‘prescribed in clause 18.3’ from clauses 18.5(a)(i), 18.5(a)(ii) and 18.5(b)(ii). We have also decided to change the reference to ‘ordinary weekly wage rate’ in clause 18.5(b)(ii) to ‘ordinary hourly rate’ for consistency with clause 18.5(a)(i).

Item 41– Overtime

[108] AWU submitted that the reference to clause 14.2(c) in clause 23.1(b) of the exposure draft should be to clauses 14 and 15.

[109] It is unclear whether this item is in fact agreed or in dispute. The AMWU submitted that the item was agreed. 61 Ai Group submitted that the item remains outstanding.62 Qantas agrees with the following amendment to clause 23.1(b) of the exposure draft on the basis that overtime is not payable in circumstances where there is a change to the shift roster made in accordance with clause 17.2:63

‘(b) For the purpose of this clause, ordinary hours means the hours worked in any enterprise, fixed in accordance with clauses 14.2 (c), 14.3 or 15.1(a).’

[110] Our provisional view is that the variation proposed by Qantas is appropriate as it more accurately reflects the scope of clauses to be considered when arranging hours of work. Interested parties are invited to comment on this provisional view by 19 April 2018, see the Next Steps below.

Item 49 – Summary of Hourly Rates of Pay

[111] The AMWU submitted that the summary of hourly rates of pay in Schedule B of the exposure draft should include overtime for casuals. The AMWU submitted that casual employees are not excluded from overtime and the tables should be amended to identify overtime rates payable. 64

[112] The issue of whether casual employees are entitled to overtime has been identified as an outstanding issue in respect of a number of awards. A separate Full Bench has been constituted to deal with the issue. On 4 December 2017, the Full Bench issued a Statement identifying a number of other awards with similar issues. 65 The Airline Operations Award is identified on that list as it contains some ambiguity as to whether overtime is payable to casual employees, when such overtime commences and the rate at which overtime is payable.

[113] This matter has now been referred to a separate Full Bench for further consideration. 66

Substantive matters

[114] Interested parties are directed to advise the Commission about whether they intend to pursue the outstanding substantive matters in accordance with the Next steps below. Any outstanding matters will be referred to a separate Full Bench for consideration.

[115] There are no other matters for this Full Bench to determine with regards to the Airline Operations Award.

2.6 Airport Employees Award 2010

[116] An exposure draft based on the Airport Employees Award 2010 67 (Airport Employees Award) was published on 2 June 2016. Submissions in response to the exposure draft were received from the AMWU, the Community and Public Sector Union (CPSU), and the Association of Professional Engineers, Scientists and Managers, Australia (APESMA).

[117] A hearing was held on 6 December 2016 in Sydney. A revised summary of submissions was published on 4 January 2017. A conference was held on 2 February 2017. 68 No employer parties were present at the conference. The parties in attendance (the CPSU and the AMWU) advised they did not wish to make submissions in relation to any items except item 12.

[118] A draft report summarising the technical and drafting issues was published on 5 October 2017. Interested parties were directed to comment on the accuracy of the report and advise any outstanding items that required determination by the Commission. The AMWU advised the Commission the summary was accurate and none of the outstanding issues were contested between the unions and any employer. 69 The AMWU also advised some of the outstanding items were responses to questions from the Commission, and a number of other items would be ‘uncontroversial.’70

[119] A final report was published on 14 November 2017 and an updated summary of submissions was published on 23 November 2017. No substantive matters have been raised in relation to this award.

[120] A number of items require determination by this Full Bench.

Items 1 and 16 – standard rate

[121] As part of the exposure draft, the Commission asked whether the definition of ‘standard rate’ in clause 2 of the exposure draft should be refined and the percentages in clause C.1 recalibrated. The AMWU submitted that the divisor should be consistent with the formula set out in clause 22.3(b) of the exposure draft. 71

[122] Our provisional view is that the divisor should be consistent throughout the award.

[123] For completeness we intend to vary the definition in clause 2 of the exposure draft to read as follows:

standard rate means the minimum annual rate for a Technical services officer Level 1 in clause 19.1(a) divided by 52.1666

[124] We intend to vary the text in clause C.1 of the exposure draft to read as follows:

The wage-related allowances in this award are based on the standard rate as defined in clause 2 as the minimum annual rate for a Technical services officer Level 1 in clause 19.1(a) divided by 52.1666 = $785.58 $783.08

[125] We note that the amount of $783.08 will need to be updated to $808.91 to reflect the outcome of the 2016–2017 annual wage review.

Item 2 – Apprentice trades

[126] The AMWU noted that the word “shall” is used in clause 12.8 of the exposure draft, whereas the word “will” is consistently used elsewhere.

[127] For consistency we will delete the word “shall” and insert word “will” in clause 12.8 of the exposure draft.

Item 2A – Ordinary hours of work and rostering—day workers

[128] The FWO raised a question about whether day workers can work ordinary hours on a Saturday as clause 22.1 of the exposure draft refers to ordinary hours occurring Monday to Saturday. It is put that this may be inconsistent with the ordinary hours of work set out in clause 16 of the exposure draft which refers to ordinary hours of work occurring on Monday to Friday.

[129] A Full Bench considered ordinary hours of work in this award in AM2009/100 and decided that:

‘Ordinary hours

[9] The AMWU and CPSU submitted that cl.30.1(a) carries over an error from the underpinning award by referring to the rate payable for work performed outside ordinary hours Monday to Saturday when ordinary hours can only be worked Monday to Friday. In our view the submission is based on a misreading of the clause. The clause deals with the rate of overtime for work outside ordinary hours and creates a distinction between the rate for such overtime on Monday to Saturday compared to Sunday (cl.30.1(b)). All work performed on a Saturday or Sunday is necessarily overtime. The change sought would remove the provision for the overtime rate for Saturday. No amendment to the clause is required.’ 72

[130] In our view, the previous Full Bench decision addresses the FWO’s concerns and no amendment to the exposure draft is needed.

Item 3 – Breaks

[131] The Commission asked whether meal breaks in clause 18.1 of the exposure draft are paid or unpaid. The AMWU and the CPSU submitted that breaks for day workers are unpaid and breaks for shift workers are paid.

[132] In the absence of any objection we propose to accept the interpretation advanced by the AMWU and the CPSU, but invite interested parties to comment on whether any amendment to the exposure draft is needed to provide clarity. Submissions on this point are to be provided by 19 April 2018, see the Next steps below.

Item 4 – Minimum wages–Professional Engineers

[133] The Commission asked how employees progress through the three pay points for Professional engineer Level 1.

[134] In response, APESMA submitted that clause 11.4 of the Airport Employees Award 1999 73 set out the mechanism for progressing through the pay points as follows:

‘11.4 Incremental progression

11.4.1 The job description for each position shall identify the abilities and/or training needed to progress to the next salary point within the specified range.

11.4.2 Progression through the incremental scale shall be subject to the employee meeting the criteria identified for his/her position.

11.4.3 Subject to 11.4.2, progression through the incremental scale may be initiated at the discretion of the employer or on application by the employee.

11.4.4 Such progression may occur at any time, but assessment would normally be conducted annually.’

[135] During award modernisation, this definition was not transposed into the modern award.

[136] Our provisional view is that the definition in the pre-reform award should be replicated in the exposure draft as a new clause 19.1(e) as follows:

‘(e) Incremental progression for Professional engineers

(i) The job description for each position will identify the abilities and/or training needed to progress to the next salary point within the specified range.

(ii) Progression through the incremental scale will be subject to the employee meeting the criteria identified for their position.

(iii) Subject to 19.1(e)(ii), progression through the incremental scale will be initiated at the discretion of the employer or on application by the employee.

(iv) Such progression may occur at any time, but assessment would normally be conducted annually.’

[137] Submissions on this provisional view are to be provided by 19 April 2018, see the Next steps below.

Items 5 and 6 – Reimbursement of airfares

[138] AMWU noted that the word ‘dependent’ was misspelt in clause 20.3(d)(ii) of the exposure draft.

[139] The exposure draft will be amended to use the word ‘dependant’ instead.

[140] The Commission asked whether a motor vehicle allowance should be inserted or whether the reference to the allowance should be deleted.

[141] In response, the AMWU and the CPSU support the deletion or clarification of the reference to a motor vehicle allowance in clause 20.3(d)(v) of the exposure draft.

[142] Clause 20.3(d)(v) of the exposure draft will be varied to delete the reference to a motor vehicle allowance as follows:

‘…equal to the lesser of:

•  the cost of a return airfare reasonably incurred; or

•  the motor vehicle allowance; or

•  the cost reasonably incurred in respect of such travel.’

Items 7 and 8 – Reimbursement of air conditioning expenses

[143] The AMWU submitted that the bottom row of the table in clause 20.3(f)(ii) of the exposure draft may be clearer if it read:

‘where a separate meter is installed which records only electricity consumption of the air conditioning system’ 74

[144] No other interested party commented on the AMWU submission.

[145] We agree that the phrasing in the table is ambiguous and propose the following amendment to the table in clause 20.3(f)(ii):

.

[146] Submissions on this provisional view are to be provided by 19 April 2018, see the Next steps below.

[147] As part of the exposure draft, the Commission asked whether ‘Option B’ in clause 20.3(f)(iii) of the exposure draft should read: “B = the number of days covered by the acceptable account”.

[148] The CPSU does not support altering the existing provision on the basis that there is no evidence that the clause creates difficulty in practice. 75

[149] In the absence of any suggestions from interested parties, we do not intend to vary the exposure draft.

Item 9 – Call-back

[150] Clause 22.6(f) of the exposure draft currently contains a cross-reference to ‘clause 0’. That cross-reference will be updated to say ‘clause 22.5’, consistent with the current modern award.

Item 10 – On call and stand-by

[151] The CPSU submitted that the term ‘ordinary hourly rate’ should be used in clause 22.7 of the exposure draft to indicate the inclusion of any applicable allowance. 76

[152] The inclusion of a defined ‘ordinary hourly rate’ and the interaction with any ‘all purpose’ allowance in exposure drafts was considered at length in the first Group 3 Decision. 77 The Airport Employees Award does not contain an all purpose allowance and as such there is no defined ‘ordinary hourly rate’.

[153] On that basis we do not intend to vary the exposure draft in the way suggested by the CPSU.

Item 12 – Shift payment

[154] The CPSU submitted that the wording ‘must be paid for such shift’ should be incorporated into clause 23.2 of the exposure draft to make it consistent with the terminology used in the current modern award. 78

[155] The exposure draft has changed the terminology used in the current clause. To avoid any uncertainty or ambiguity about the operation of the clause we intend to re-instate the current provision as follows:

‘23.2 Shift payment

(a) A shiftworker whilst on a shift, any part of which is a night shift, must be paid for such shift 115% of the minimum hourly rate, except as specified in clause 23.2(b).’

Item 13 – Broken leave

[156] The CPSU submitted that the formatting in clause 24.3 of the exposure draft should be amended to match the drafting of the current modern award clause 31.3. 79 There was no response from other interested parties.

[157] We agree that there is no reason to deviate from the wording and formatting of the current modern award provision. Our provisional view is that the exposure draft should be amended to revert back to the current modern award drafting as follows:

‘24.3 Broken leave

(a) Annual leave may be granted in such periods as are mutually agreed between the employer and an employee. Leave entitlements taken in respect of any year of service must include at least one period of at least one week, excluding public holidays.

(b) The employer and the majority of employees at an airport may agree to establish a system of single day annual leave absences, subject to clause 7.5.

(i) An employee may elect, with the consent of the employer, to take annual leave in single day periods or part of a single day not exceeding a total of 10 days in any calendar year at a time or times agreed between them.

(ii) A shiftworker and the employer may agree to defer payment of the annual leave loading in respect of single day absences until at least 10 consecutive annual leave days are taken.’

[158] Submissions on this provisional view are to be provided by 19 April 2018, see the Next steps below.

Item 14 – Annual leave loading

[159] The AMWU submitted that there is an inconsistency between the wording of clause 24.11(a) and 24.11(b)(i) that also exists in the current modern award. 80 Clause 24.11(a) requires that an employee be paid a loading during a period of annual leave which could be taken at various times of the year. However, under clause 24.11(b)(i) the loading is to be paid once annually in December, whether or not leave is to be taken at that time.

[160] We agree that there is an inconsistency between these clauses and our provisional view is that it is appropriate that clause 24.11(b)(i) be re-drafted as follows:

(i) Non-shiftworkers

An annual leave loading of 17.5% of the minimum hourly rate in clause 24.9 must be paid once annually on the first pay day in December to employees other than shiftworkers during each period of annual leave.

[161] Submissions on this provisional view are to be provided by 19 April 2018, see the Next steps below.

Item 15 – Rostered day off falling on public holiday

[162] The Commission asked whether payment for a public holiday is in addition to the payment for a rostered day off.

[163] The AMWU and the CPSU submitted that an employee whose rostered day off falls on a public holiday would receive payment for the public holiday and a separate day off.

[164] In the absence of any objection we are content to accept this interpretation. Interested parties are asked whether they seek any variation to the exposure draft to clarify this interpretation. For example, a new clause 27.8(d) could be inserted as follows:

(d) An employee whose rostered day off occurs on a public holiday will receive the payment in clause 27.8(b) and an additional day off on an alternate day.

[165] Submissions on this provisional view are to be provided by 19 April 2018, see the Next steps below.

[166] We note that no employer representatives participated in the proceedings in relation to the Airport Employees Award. The views expressed are provisional views and interested parties are invited to comment on by 19 April 2018, see the Next steps below. In the absence of any objection the changes discussed will be made to the exposure draft.

[167] There are no other outstanding matters for this Full Bench to determine with regards to the Airport Employees Award.

2.7 Amusement, Events and Recreation Award 2010

[168] On 22 November 2016, the Commission published an initial exposure draft based on the Amusement, Events and Recreation Award 2010 81 (Amusement Award) together with a comparison document showing the changes made to the structure and language in the award.

[169] A summary of submissions in relation to the technical and drafting issues and a summary of submissions in relation to the substantive issues were published on 8 March 2017.

[170] On 20 April 2017 the Commission conducted a preliminary conference to discuss the issues set out in the summary of submissions. 82 A number of technical and drafting matters and substantive issues were resolved amongst the interested parties.

[171] On 10 May 2017, updated summaries of submissions for technical and drafting matters and the substantive issues were republished. This was followed by a revised exposure draft being republished on 10 May 2017.

[172] On 10 November 2017, a Report to the Full Bench was published, which was followed by the publication of an updated technical and drafting summary of submissions on 20 November 2017. We will adopt the agreed variations set out in the Report and the exposure draft will be updated accordingly

[173] There are a number of items that remained unresolved and these are set out below.

Item 13 – Minimum wage – adult employees

[174] Item 13 relates to the AWU’s proposal to amend the preamble to the adult employee minimum wage table in clause 16.1 of the exposure draft. This proposed amendment to clause 16.1 appears as follows:

An employer must pay adult employees the following minimum wages (plus any applicable allowances) for ordinary hours worked by the employee. 83

[175] The AWU submitted that the change is necessary because the Amusement Award contains an all purpose allowance for exhibition employees (at clause 17.2) and consistent with the definition of ‘ordinary hourly rate’ at clause 2 of the exposure draft, the preamble to the minimum wages table should explicitly reference this applicable allowance to which an adult employee is entitled.  84

[176] In particular, the AWU raised a concern that the current wording at clause 16.1 of the exposure draft may incorrectly give the impression that the weekly and hourly rates listed are the minimum for all employees, including those entitled to the all purpose allowance. 85 For example, an exhibition technician is classified as a Grade 4 employee, and the minimum amount expressed in the table at clause 16.1 is $783.30 per week. At clause 17.2(b) an exhibition technician is entitled to an all purpose allowance at $55.61 per week in addition to that $783.30.86 So the preamble of the table fails to mention that allowance, and in doing so, may mislead someone, either an employer or an employee, as to what an employee is entitled to.

[177] The AFEI do not support the proposed change, stating that the additional words are unnecessary and unduly add to the length of that clause. 87

[178] The Group 3 decision considered the calculation of rates in the hourly rates of pay schedule in a number of modern awards which contain an all purpose allowance which apply only to some employees. 88 This award has been drafted consistently with the Group 3 Full Bench’s view and the amendment proposed by the AWU is not necessary.

Item 14 – Wage-related allowances

[179] Item 14 concerns Live Performance Australia’s (LPA) proposal to remove the ‘$ per hour’ column from the table in clause 17.2(b) of the exposure draft. LPA submitted that these specific supervisory and flexible loading allowances in practice only practically apply to employees engaged and paid by the week, and that the inclusion of such “hourly” rates makes the clause ambiguous. 89

[180] At the conference held on 20 April 2017, the AWU opposed LPA’s proposal, preferring to preserve the status quo. 90 The AWU also queried whether a part-time employee, who works less hours, would still maintain that same weekly allowance.91 The LPA responded that, in that circumstance, an employee’s wage is calculated by their weekly all purpose allowances in clause 17.2(b) being added to their minimum week rate in clause 16.1 of the exposure draft, the total of which is then divided by the number of hours worked.92 The AWU responded this would be an unnecessary exercise as the ‘per hour’ all purpose allowance could be used to arrive at the employees pay by simply adding it to the minimum hourly rate and multiplying that total with the number of hours worked. 93

[181] In our view, the inclusion of a ‘$ per hour’ column in clause 17.2(b) of the exposure draft does not create ambiguity or uncertainty. And in the absence of any agreement between the interested parties we do not propose to deviate from the drafting of the exposure draft. No change will be made.

Item 15 – Expense-related allowance – meal allowance

[182] Item 15 concerns a question raised by the Commission about whether the meal allowance at clause 17.3(b) of the exposure draft should be restricted to “an ordinary working day”.

[183] Business SA took the view that the meal allowance for overtime should be restricted to when overtime is immediately after finishing one’s ordinary hours. 94 It further submitted that the purpose of the meal allowance is to ensure that employees can purchase a meal if they have not had the opportunity to bring in their own food and where an employee is working overtime in a standalone situation (not attached to ordinary hours), there is opportunity for the employee to prepare and bring in their own meal.95 AFEI similarly held the view that the meal allowance should continue to be restricted to ‘an ordinary working day’.96 It argued that this is consistent with the current award, and any removal of the restriction would constitute a substantive change.97

[184] The AWU noted that according to clause 13.5 of the exposure draft ordinary hours can be worked any day from Monday to Sunday, and therefore there are no ‘ordinary working days’. 98  The AWU also noted that the words ‘ordinary working day’ does not appear anywhere in the exposure draft other than at clause 17.3(b), hence the reference to ‘ordinary working day’ causes unnecessary confusion and should be removed to improve the clarity of the clause.99

[185] Both AFEI and Business SA disagreed with the AWU. 100 Business SA considered that the deletion of the phrase would amount to a substantive change to the Amusement Award.101 At the conference on 20 April 2017, the AWU submitted that the removal of the phrase from the clause would not have any effect on employee entitlements.102 Indeed, the AWU argued that under the current wording, the phrase ‘ordinary working day’ may be incorrectly interpreted to deny an employee who works two or more hours of overtime on a day from being entitled to the allowance.103

[186] We agree with the view of Business SA and AFEI that the meal allowance for overtime should be restricted to circumstances where overtime immediately follows the employees’ ordinary hours. It is not clear, however, what purpose the words “on an ordinary working day” play in the context of clause 17.3(b), as it has not been defined in the exposure draft. We agree with the AWU that the removal of the phrase would not constitute a substantive change to employee entitlements.

[187] Clause 17.3(b) of the exposure draft will be varied as follows:

(b) Meal allowance

An employee who is required to work overtime for two or more hours immediately after finishing their ordinary hours of work on an ordinary working day must be paid a meal allowance of $11.10 unless the employer provides a meal.

Item 17 – Overtime

[188] Item 17 relates to the AWU’s submission that clause 19.1 of the exposure draft fails to provide that overtime is paid to full-time and part-time employees when they work over eight ordinary hours per day, as per clause 13.2 of the exposure draft. 104

[189] Business SA and the AFEI disagreed with the AWU. 105 Business SA submitted that a part-time or full-time employee is not always entitled to payment for overtime where they work over eight ordinary hours in one day as a consequence of clauses 13.3 and 13.4 of the exposure draft. Clauses 13.3 and 13.4 permit, by agreement, an increase from eight to 10 or 12 ordinary working hours to be worked in a single day106 and clause 19.1 accurately reflects this flexibility by stating overtime is payable where the employee works in excess of the rostered working hours on any one day; be that eight, 10 or 12 hours.107

[190] At the conference held on 20 April 2017, the AWU clarified that it proposed an amendment to replace the words ‘the rostered’ with ‘ordinary’ in clause 19.1 of the exposure draft to allow for employees who work eight, 10 and 12 hour days to access the overtime benefits. 108

[191] Clause 19.1 of the exposure draft has been drafted in a manner which is consistent with the current modern award provision. In our view, the clause satisfactorily accounts for the fact that overtime may only accrue to some employees after they have worked beyond eight, 10 or 12 rostered hours in a single day, as provided for in clauses 13.3 and 13.4 of the exposure draft. Therefore no amendment to the exposure draft is needed.

Item 18 – Sunday and public holiday work

[192] Item 18 concerns to the applicable rates payable to an employee working overtime on a Sunday, as set out in clause 19.5 of the exposure draft. The FWO, in its correspondence dated 2 March 2015, raised a concern regarding an inconsistency in relevant rates between clauses 19.2 and 19.5(a) of the exposure draft. 109

[193] Under clause 19.5(a) all time worked on a Sunday will be paid at 150% of the ordinary hourly rate. However, under clause 19.2 all overtime worked will be payable at 150% for the first three hours and 200% thereafter. The FWO queried whether clause 19.5 should refer to “ordinary hours worked on a Sunday”. 110

[194] In response to the FWO’s query, Business SA submitted that overtime worked on Sunday should be at the rate of 150% for the first 3 hours and 200% thereafter. The penalty of 150% for all hours on a Sunday is the penalty rate (not overtime rate) for ordinary hours worked on a Sunday. Therefore, Business SA supports clause 19.5 of the exposure draft referring to “Ordinary hours worked on a Sunday”. 111

[195] Similarly, the AWU noted that clause 13.5 of the exposure draft outlines that ordinary hours can be worked Monday to Sunday and therefore the rate payable for an employee who works their ordinary hours on a Sunday is 150%, with overtime worked on a Sunday paid pursuant to clause 19.2. 112

[196] AFEI, however, did not support the AWU’s or Business SA’s submissions that clause 19.5 should state ‘Ordinary hours worked on a Sunday’. AFEI noted that this proposal is inconsistent with the current award at clause 23.3(a). 113

[197] It is our provisional view that the submissions of Business SA and the AWU be accepted and the words ‘All time worked’ be replaced with ‘Ordinary hours’ in clause 19.5(a) of the exposure draft. This would ensure that employees are paid at the appropriate overtime rate on Sundays. Interested parties are invited to comment on this provisional view by 19 April 2018 see the Next steps below.

[198] There are no other outstanding matters for this Full Bench to determine with regards to the Amusement Award. The substantive matters in this award will be referred to a separate Full Bench to consider and determine.

2.8 Architects Award 2010

[199] An exposure draft based on the Architects Award 2010 114 (Architects Award) was published on 13 May 2016 and submissions in response to the exposure draft were received from the Association of Consulting Architects–Australia (ACAA),115 APESMA116 and CplusC Architectural Workshop (CplusC).117 Ai Group also made a submission in relation to general issues arising from exposure drafts.118

[200] A summary of submissions was published on 30 November 2016. A hearing was held on 6 December 2016. APESMA and ACAA both appeared at the hearing. Updated summaries of submissions were published for the technical and drafting matters and the substantive issues on 20 November 2017.

[201] Four issues in relation to technical and drafting issues were the subject of submissions.

Item 1 – Casual employment

[202] Item 1 deals with casual employment, in clause 10 of the exposure draft. Interested parties were asked to comment on whether the words “by the week” in clause 10.3 should be changed to “as a full-time or part-time employee”. CplusC, ACAA and APESMA all made submissions supporting the change of wording. The exposure draft will be updated to reflect this change.

Item 2 – Overtime

[203] Item 2, which relates to time off instead of payment for overtime, was the subject of discussion at the hearing and APESMA noted that this may become a substantive issue. 119 Accordingly, we will not deal with the time off instead of payment for overtime issue further in this decision. APESMA, or any other interested party, are to confirm whether this matter will be pursued as a substantive variation, see the Next Steps below.

[204] The remaining two items were the subject of submissions in response to questions asked by the Commission in the exposure draft.

Item 3 – Time off instead of payment

[205] Item 3 related to the overtime provisions in clause 13 of the exposure draft. Interested parties were asked whether “in excess of normal hours” in clause 13.1 should be amended to read “in excess of or outside the spread of ordinary hours” to make it clear that overtime is also payable when worked outside the spread of hours. CplusC and APESMA supported the proposed amendment. ACAA submitted the following alternative wording “in excess of the normal hours or outside the spread of ordinary hours”.

[206] The exposure draft will be varied as follows:

13.1 An employer must compensate an employee for all time worked in excess of or outside the spread of ordinary hours by:

Item 4 – Minimum wages

[207] Item 4 concerns whether the table of minimum wages in clause 14 of the exposure draft should include weekly rates. Each of the three parties agreed that the table should include weekly rates. The exposure draft will be amended accordingly.

[208] No interested parties appeared at the further conference on 25 July 2017. The Commission subsequently wrote to ACAA to seek clarification about whether they would pursue the substantive variations as set out in the summary of substantive variations. 120 The ACAA advised that it would pursue the variations and requested a further hearing.121 The substantive matters will be referred to a separately constituted Full Bench.

[209] There are no other outstanding issues for this Full Bench to determine with regards to the Architects Award.

2.9 Book Industry Award 2010

[210] On 16 November 2016 the Commission published an initial exposure draft based on the Book Industry Award 2010 122 (Book Industry Award) and a comparison document showing the changes made to the structure and language in the award. Interested parties were provided with an opportunity to file written submissions and submissions in reply on the technical and drafting issues in the exposure draft.

[211] Ai Group was the only party to file material in relation to the review of the Book Industry Award. The submission included a response to our question regarding overtime provisions.

[212] A summary of submissions was published by the Commission on 8 March 2017 and the award was listed for mention on 20 April 2017, and Ai Group was the only party to attend. 123 An updated summary of technical and drafting matters was published on 20 November 2017.

[213] The issues addressed in Ai Group’s submissions are set out below, with reference to the relevant exposure draft clauses.

Item 1 – Exclusions from coverage

[214] Ai Group proposed to insert the word ‘employees’ before the word ‘who’ at the beginning of clause 4.4(c) of the exposure draft, so that the clause reads coherently.

[215] We agree with Ai Group; the error will be corrected in the exposure draft.

Items 2 and 3 – Facilitative provisions

[216] Ai Group proposed that the references to clauses 18.2 and 18.3 be deleted, as it does not consider either provision to be a ‘facilitative provision’ in the sense contemplated by exposure draft clause 7.1.

[217] The list of facilitative provisions has been raised in a number of awards and will be dealt with below at [756].

Item 4 – Casual employment

[218] Ai Group submitted that the change to the definition of a casual employee from ‘an employee who is engaged as such’ in the Book Industry Award to an employee ‘who is engaged and paid as a casual employee’ in the exposure draft could be a substantial change, and therefore should be deleted.

[219] We do not agree with Ai Group’s submission that the addition of the word ‘and paid’ constitutes a substantive change. The terminology is common to a number of modern awards and, in our view, makes no difference to the operation of the clause or the entitlements of a casual employee. The exposure draft will not be amended.

Item 5 – Exemptions for Senior editors Level 3 Grade 3 and Publicists Grade 6 and 7

[220] The Book Industry Award currently provides that Part 5 of that award does not apply to employees classified as Senior editors Level 3 Grade 3 or Publicists Grade 6 or 7. The relevant Part provides for ordinary hours of work and rostering, breaks and overtime. Ai Group submitted that while the exposure draft provides exemptions from ordinary hours of work and overtime provisions for Senior editors Level 3 Grade 3 and Publicists Grade 6 and 7, there is no equivalent exemption from the breaks provision in the exposure draft (clause 13). Ai Group submitted that it is unclear why this is the case, and proposed that the exemption contained in clause 20 of the Book Industry Award be retained in clause 13 of the exposure draft.

[221] Ai Group’s observation appears to be accurate. Our provisional view is that the exposure draft be varied as follows:

13. Breaks

13.1 Every employee employed on a full-time basis will be allowed at least one meal break every day of between 30 and 60 minutes. The employer will be entitled to deduct the time spent on a meal break from the total time worked in accordance with clause 12.1.

13.2 Exemption from breaks

Clause 13.1 will not apply to employees classified as Senior editors Level 3—Grade 3 or Publicists Grade 6 or 7.

[222] Interested parties are invited to comment on the provisional view and also consider whether clause 13—Breaks, should apply to all types of employees rather than being limited only to those employed on a full-time basis, see the Next steps below.

Item 6 – Minimum wages

[223] Ai Group proposes to insert the words ‘(full-time employee)’ under the column heading ‘minimum weekly rate’ in the table in the minimum wages clause of the exposure draft, and submits that the change is required to avoid uncertainty as to whether the weekly rates also apply to part-time and casual employees.

[224] This matter will be given further consideration by the Plain Language Full Bench. 124

Item 7 – Overtime

[225] In publishing the exposure draft, the Commission asked interested parties whether the award should include a definition of overtime. The current Book Industry award does not contain such a definition. Ai Group submits that it does not see the necessity for such a definition.

[226] In the absence of any support in response to the Commission’s questions regarding introducing a definition of overtime, we do not propose to take any further action at this time.

Item 8 – ‘Leave Public Holiday’ Part heading

[227] Ai Group submits that the heading ‘Leave Public Holiday’ in Part 6 of the exposure draft does not make sense, and should be amended to ‘Leave and Public Holidays’ to avoid confusion as to what the Part is about.

[228] We agree. The part heading will be corrected in the revised exposure draft.

[229] We also express the provisional view that the following drafting variation to paragraphs 12.1(b) and (c) of the exposure draft to bring them more into line with the drafting of the current Book Industry Award:

(b) by employees working 19 days in a 28 day work cycle:, of 40 ordinary hours in each of three weeks and 32 ordinary hours in one week; or

(c) by employees working 10 days in a 14 day work cycle:, of 42 ordinary hours in one week and 34 ordinary hours in one week; or

[230] Interested parties are invited to comment on this provisional view by 19 April 2018, see the Next steps below.

[231] There are no other outstanding issues for this Full Bench to determine with regards to the Book Industry Award.

2.10 Building and Construction General On-site Award 2010; Joinery and Building Trades Award 2010; Mobile Crane Hiring Award 2010

[232] The technical and drafting matters and the substantive matters pertaining to the Building and Construction General On-Site Award 2010; 125 the Joinery and Building Trades Award 2010;126 and the Mobile Crane Hiring Award 2010127 were referred to a separate Full Bench to determine.128

[233] There are no outstanding issues for this Full Bench to determine with regards to these awards.

2.11 Broadcasting and Recorded Entertainment Award 2010

[234] On 25 November 2016 the Commission published an initial exposure draft based on the Broadcasting and Recorded Entertainment Award 2010 129 (Broadcasting Award). A comparison document was published concurrently with the exposure draft.

[235] Updated summaries of submissions were published for the technical and drafting matters and the substantive issues on 20 and 21 November 2017 respectively.

[236] The substantive matters in this award were referred to a separately constituted Full Bench for determination. It remains for this Full Bench to determine the technical and drafting matters.

[237] Following discussions between interested parties, the following items were resolved by agreement: 2, 5, 8, 9, 10, 11, 12, 13, 14, 17, 18, 19, 20, 21, 22, 27, 28, 30, 31, 32, 34, 35, 36, 39, 41, 42, 45, 46 and 49. We will adopt the changes agreed to by the parties.

[238] Items 4, 6 and 44 were withdrawn and need not be determined.

[239] The following items remain outstanding: 1, 3, 7, 15, 23, 24, 25, 26, 29, 33, 37, 38, 40, 43, 47 and 48. We have also added item 16 to the unresolved list because it is linked to items 3 and 43. We now turn to consider each of the outstanding items.

Item 1 – Calculation of overtime

[240] The following submissions were made by the Australian Directors’ Guild (ADG): 130

‘12. The ADG notes various proposals to change the content of the award in relation to the calculation of overtime particularly to specify that overtime is payable only at the minimum rate of pay for a classification or at the ordinary hourly rate so defined and to introduce a provision that overtime is payable on a daily basis. Such an approach is inconsistent with the history and content of the Motion Picture Production Section of the existing award and the provisions of the earlier Motion Picture Production Award.

13. The industry is unique as it operates on a standard working week of 50 hrs, well in excess of the NES standard of 38 hours, minimum daily hours of 10, set periods of high intensity duty and limited duration engagements which limit the effectiveness and opportunity to use averaging of hours and for that matter accrued leave or TOIL.

14. The manner of payment and the calculation of overtime is set out in clauses 76 and 77. Overtime is already calculated on a daily basis rounded to the nearest quarter of an hour if more than 5 minutes is worked. The proposed variations are inconsistent with the current provisions in clause 77.2 and they are also inconsistent with the wording in the exposure draft at clause 81.2 which refer to overtime being payable on the employees gross agreed remuneration. A similar provision was found in the earlier Motion Picture Award. The current proposal would result in a significant reduction in pay.’

[241] A previous Full Bench determined the following:

‘[43] The term ‘ordinary hourly rate’ has been used in contrast to ‘minimum hourly rate’ in affected awards to make it clear that all purpose allowances must be added to the minimum rate of pay before calculating any penalty rate.

[44] In affected awards, penalties and loadings are expressed as a percentage of the ordinary hourly rate, for example “overtime is paid at 150% of the ordinary hourly rate” to make it clear that an all purpose allowance to which an employee is entitled must be added to the minimum rate before calculating the loaded rate, that is, there is a compounding effect.’ 131

[242] Given this established calculation principle we believe overtime should be calculated by reference to the ordinary hourly rate, not the minimum hourly rate. Interested parties may wish to comment on whether any variation to the exposure draft is required to give effect to this interpretation. Submissions can be made by 19 April 2018, see the Next steps below.

Items 3, 16 and 43 – Loaded minimum hourly rate

[243] LPA submitted that the reference in clause 13.4 of the exposure draft to the 8% loading being payable for all purposes is incorrect as the loading is not payable for all purposes. 132

[244] LPA submitted that the 8% loading was introduced into the relevant pre-reform award by consent between LPA and the Media Entertainment and Arts Alliance (MEAA), and that it was not an all purpose allowance when it was inserted. The loading was reintroduced into the modern award after having initially been excluded. 133 LPA submitted that a Full Bench of the Australian Industrial Relations Commission (AIRC) acknowledged its submission that the allowance is not payable for all purposes in 2009 when the decision was made to reintroduce the loading.134

[245] Interested parties advised that they had reached agreement that the 8% loading applies to the minimum rate of pay for each hour worked. 135

[246] The inclusion of this penalty payment was introduced as a result of a previous Full Bench Decision. That Full Bench explained: 136

‘[8] The second change is to clause 14.12. The name of the clause is changed from “Cinema Workers” to “Employees in cinemas”. The clause itself is changed so that it reads:

“All employees in cinemas will receive an 8% penalty averaging component instead of Sunday penalty payments and reduced Public Holiday penalties.”

[9] This change is designed to ensure that all employees in cinemas, whether they be managerial or ‘cinema workers’ receive the 8% penalty averaging component…’

[247] The previous Full Bench did not indicate whether the 8% allowance was payable for all purposes, nor did it indicate whether the allowance was cumulative or compounding, but the intention does not appear to have been to create an all purpose allowance. Interested parties have agreed to the deletion of the words “This loading is payable for all purposes” appearing in clause 13.4 of the exposure draft and to delete the definition in clause 2 of the exposure draft. We will adopt the parties’ agreed position.

[248] We think there is merit in seeking further clarification about how the 8% loading is calculated. Interested parties are to provide submissions on this point by 19 April 2018, see the Next steps below.

Item 7 – Facilitative provision – Radio Broadcasting – meal break during shift

[249] In the exposure draft published in November 2016 the Commission posed a question to interested parties in the following terms:

‘Parties are asked to confirm whether agreement under clause 40.3 can be on an individual basis’

[250] Submissions were received from the CPSU, AFEI and ABI. The CPSU submitted that ‘employees’ can be read as an individual or group of employees, 137 whereas AFEI and ABI submitted that agreement can only be reached between an employer and an individual employee.138

[251] The origin of this provision can be traced to the Commercial Radio – Technical Staff Award 1998. 139 In that particular pre-reform award, the equivalent provision appeared at clause 18.1.3 in the following terms:

‘By agreement between any employer and employee/s other arrangements about meal periods may be made.’ 140

[252] The pre-reform award makes clear that the intention of the clause is to allow for agreement to be reached between the employer and either an individual employee or group of employees. Accordingly, we concur with the submission of the CPSU.

[253] The exposure draft will be amended to state that agreement can be reached between and employer and an individual employee or a majority of employees. The variation will appear as follows:

40.3 By agreement between any employer and an individual employee or a majority of employees other arrangements about meal breaks may be made.

Item 15 – Classifications and minimum wages

[254] The MEAA submitted that the change in the way penalties and loadings are expressed in the award, from time base formulas (such as ‘time and a half’) to percentage based formulas (such as ‘150% of the minimum hourly rate’) may result in a reduction in the take home pay of employees. 141

[255] LPA submitted that it would support the MEAA’s position if it could be shown that employees would be disadvantaged as a result. 142 The MEAA’s position is opposed by the Seven Network (Operations) Limited, Nine Network Pty Limited and Network Ten Pty

Ltd (Seven Network). 143

[256] In a previous decision, the Commission made the following observations:

‘Modern awards provide a safety net of minimum entitlements. The modern award prescribes the minimum rate an employer must pay an employee in given circumstances. Overaward payments, while permissible, are not mandatory. Further, if an employer chooses to pay an employee more than the minimum amount payable for ordinary hours worked, the employer is not required to use that higher rate when calculating penalties or loadings. We are not persuaded by the submissions advanced by union parties and do not propose to replace the terms 150% and 200% with time and a half or double time, etc.’ 144

[257] We reaffirm this position and reject the submission by the MEAA.

Items 23 and 24 – Annual leave

[258] The Seven Network submitted that clauses 16.2 and 16.3 of the exposure draft should be amended to more closely reflect the provisions of s. 87(1)(b) of the Act. 145 The effect of the Seven Network’s amendments would be that the notes appearing at the end of clauses 16.2 and 16.3 of the exposure draft would read as follows (underlined text to be added):

NOTE: s.87(1)(b) of the Act does not apply as employees under this clause are not defined or described as shiftworkers for the purposes of the NES. 146

[259] The CPSU neither supported, nor opposed the Seven Network’s submission. No other interested party has commented on this item. On that basis, we will vary the exposure draft according to the Seven Network’s suggestion at [258].

Item 25 – Annual leave loading

[260] Commercial Radio Australia (CRA) submitted that the current drafting of clause 16.9 147 of the exposure draft could be read as entitling some employees to payment of both the relevant shift loading (and potentially other amounts payable in respect of ordinary hours) and an additional annual leave loading.148

[261] Clause 16.9 of the exposure draft appears in the following terms:

‘16.9 Annual leave loading

Before the start of the employee’s annual leave the employer must pay the employee:

(a) subject to clause 32.2(d), instead of the base rate of pay referred to in s.90(1) of the Act, the amount the employee would have earned for working their normal hours, exclusive of overtime had they not been on leave; and

(b) an additional loading of 17.5% of the relevant minimum wage for their classification as set out in this award.’

[262] The CRA submitted that paragraph (a) should be amended, and a new paragraph inserted after paragraph (b), such that they would read as follows:

‘(a) subject to clause 32.2(d), instead of the base rate of pay referred to in s.90(a) of the Act, the amount the employee would have earned for working their normal hours had they not been on leave, but excluding overtime, shift rates, penalty rates, special rates or any other payment which might have been payable to the employee as a reimbursement for expenses incurred; and

(b) an additional loading of 17.5% of the relevant minimum wage for their classification as set out in this award.

(c) An employee who would have worked on shiftwork had they not been on leave must be paid a loading equal to that prescribed in clauses 16.9(a) and 16.9(b) or the shift rates prescribed by this award, whichever is the greater, but not both.’ 149

[263] In support of this proposition, the CRA directs our attention to a decision of a Full Bench of the Commission from 2016 150 which the CRA submits addressed a similar issue in three other modern awards.151

[264] AFEI agrees with the CRA, and submitted that the exposure draft should be amended to ensure employees can only access the greater of the shift loadings or the 17.5% leave loading, rather than permitting them to ‘double-dip’. 152

[265] The Seven Network submitted that, as the provisions contained within clause 16.9 are subject to both clauses 32.1(d) and 32.2(d), clause 16.9(a) needs to be amended to include a reference to 31.2(d). 153

[266] ABI agreed with the submissions of the CRA and the Seven Network. 154

[267] The CPSU submitted that it supports the Seven Network’s proposed variation in so far as it would vary clause 16 of the exposure draft to exclude clause 32.1(d). 155

[268] We will make the variation proposed to the cross-references in clause 16.9 of the exposure draft to be 32.1(d) instead of 32.2(d).

[269] As part of the second Group 3 Decision, the Full Bench referred a number of matters pertaining to the expression of penalty rates to the Plain Language Full Bench for consideration. 156 The matters raised in item 25 falls within the scope of that referral so we will not determine that matter as part of this decision.

Item 26 – Ordinary hours of work and rostering

[270] The Seven Network submits that the references to ‘ordinary hourly rate’ appearing in Part 7 of the exposure draft should be amended to read ‘minimum hourly rate’. 157 No explanation is given as to the reason for the proposed change.

[271] The term ‘ordinary hourly rate’ is utilised where there are all purpose allowances that may apply to the relevant employees. The only all purpose allowances in the Broadcasting Award are found in the Television Broadcasting stream, hence the term ‘ordinary hourly rate’ rather than ‘minimum hourly rate’ is used in Part 7 and not in the other Parts of the exposure draft. We reject the submission of the Seven Network. Part 7 of the exposure draft will remain as it is.

Item 29 – Overtime – Television Broadcasting

[272] The Seven Network noted that clause 29.1 of the current award has been excluded from the exposure draft, and submits that it should be reinstated as clause 31.1 of the exposure draft and subsequent clauses renumbered accordingly. 158 The CPSU regards the exposure draft’s current drafting as appropriate and opposes the changes sought by the Seven Network.159

[273] Clause 29.1 of the current award is in the following terms:

‘The hourly rate for overtime purposes is to be calculated by dividing the relevant minimum weekly wage by 38.’

[274] Both the current award and the exposure draft include tables outlining the minimum weekly and minimum hourly rates. These tables clearly set out the hourly rate to be utilised for the purposes of calculating overtime. As such, clause 29.1 of the current award is unnecessary and will not be re-inserted.

Item 33 – All purpose allowances

[275] The Seven Network submits that the words ‘Except where otherwise specified’ should be added to the beginning of clause 34.2(a) of the exposure draft and that ‘without these words there is conflict with the overtime provisions in the Award, which expressly provide that overtime is calculated on an employee’s minimum rate of pay.’ 160

[276] The CPSU opposes this submission and submits that wage-related allowances are included in the calculation of overtime, rendering the proposed amendment unnecessary. 161

[277] We reject the submission of the Seven Network. The allowances paid for all purposes are to be included in overtime calculations, which is reflected in the use of the term ‘ordinary’ (as opposed to ‘minimum’) hourly rate. If the phrase ‘Except as otherwise specified’ were to appear at the beginning of the clause it would give the impression that there are exceptions to the all purpose nature of the specified allowances, which is incorrect. The clause will remain unaltered.

Item 37 – Meal breaks—technical staff

[278] The CPSU submits that the references to ‘minimum hourly rate’ in clause 40.2 of the exposure draft should be amended to read ‘ordinary rate of pay’ in order to reflect the terminology present in clause 38.1 of the Broadcasting Award. 162

[279] We reject the CPSU’s submission. The term ‘minimum hourly rate’ has been used to denote that there are no all purpose allowances that apply to employees within this stream of the award.

Item 38 – Overtime—Technical staff

[280] At clause 43.1 of the exposure draft, the Commission posed the following question to the parties:

‘Parties are asked to clarify when overtime is payable consistent with clause 42.1. Is overtime payable for time worked in excess of rostered daily hours?’

[281] The MEAA submitted ‘that the clause needs to be considered and applied in conjunction with clause 38’, 163 which concerns rosters for technical staff. ABI submit that ‘While it is not immediately apparent on the face of the Broadcasting Award, it appears that overtime for Technical staff should be assessed with reference to clause 36—Hours of work—Technical staff.’164

[282] In the absence of any agreed position between the interested parties we do not intend to make any change to the exposure draft. If any interested party wishes to pursue this matter as a substantive change they can do so in accordance with the Next steps below.

Item 40 – Hours of work

[283] The Seven Network submits that clauses 48.1 and 48.2 of the exposure draft be combined so that the clauses better reflect the arrangement of clause 45.1 of the current award. 165 Clause 45.1 of the current award appears as follows:

‘45.1 The ordinary hours of work are an average of 38 hours per week to be worked on one of the following bases by agreement between the employer and the majority of the employees in a section or unit:

(a) five days per week;

(b) nineteen days in a 20 day work cycle comprised of three weeks of 40 hours and one week of 32 hours;

(c) nine days in a 10 day work cycle comprised of one week of 42 hours and one week of 34 hours; or

(d) four days in a five day work cycle.

Provided that in the fortnight in which Christmas Day and Good Friday occur, the ordinary hours will be reduced by eight.’

[284] The difference between the exposure draft and the current award is that, in the exposure draft, the provision beginning ‘Provided that…’ sits alone as a separate sub-clause.

[285] The provision in question is in a style often described as a ‘hanging paragraph’—that is, a paragraph that sits at the end of a clause without its own numbering or individual clause reference. The Commission’s preferred style is to avoid the use of hanging paragraphs where possible, as it is difficult to make specific reference to such provisions when they lack this characteristic.

[286] We are satisfied that the version of the provision appearing in the exposure draft does not change the effect of the provision, yet overcomes the problems associated with the use of hanging paragraphs. The submission of the Seven Network is rejected.

Item 47 – Motion Picture Production – Overtime

[287] The ADG submits that clause 80.3 of the exposure draft should be amended so that the references to ‘two hours’ should be deleted and replaced with references to either ‘2.4 hours’ or ‘two hours and 24 minutes’:

‘The apparent error limiting prescheduled overtime to a maximum of two hours a day in clause 76.3 or proposed exposure draft [sic] clause 80.3 could be retrospectively corrected as it represents a provision not amended at the time of the introduction of the modern award and the 38 hrs week. Subject to the agreement of the Commission and other parties the reference to 2 hours would be deleted and replaced with 2.4 hours or 2 hours and 24 minutes. The industry practice is to not apply the two hour limit and to have pre scheduled overtime up to 2.4 hrs. There does not appear to be any financial consequence.’ 166

[288] The provision appears in the current Broadcasting Award in the following terms:

‘76.3 Scheduled overtime may be contracted as follows:

(a) where a five-day week is worked scheduled overtime up to a maximum of two hours per day may be contracted for; or

(b) where a six-day week is worked, scheduled overtime up to a maximum of two hours per day for each day between Monday and Friday inclusive and up to a maximum of 10 hours on Saturday may be contracted for.’

[289] It is unclear what the ADG means when referring to the ‘apparent error’ in this provision. The current provision is worded in identical terms to that which appears in the exposure draft. And the exposure draft and Broadcasting Award are worded in identical terms to the two relevant pre-reform awards: the Entertainment and Broadcasting Industry – Motion Picture Production Award 1998 167 and the Entertainment and Broadcasting Industry – Film and Video Production (State) Award.168

[290] We are not persuaded that this is an error of a technical and drafting nature that requires amending, nor has a merit case been advanced for any substantive change. If any interested party wishes to pursue this matter as a substantive change they can do so, see the Next steps below.

Item 48 – Calculations of penalties and provision of rosters

[291] In the exposure draft, the Commission posed a question to interested parties concerning the wording of clause 81.2:

‘Parties are asked whether clause 81.2 should refer to the minimum rates in clause 13 rather than the ‘gross agreed remuneration’ – see [2015] FWCFB 4658 at [96].’

[292] The MEAA submitted that the term ‘gross agreed remuneration’ should be retained and pointed to its submissions on the need to retain terms such as ‘time and a half’ over ‘200% of the minimum hourly rate’, in support. 169 Conversely, ABI submitted that the clause should refer to the minimum rates in clause 13 of the exposure draft rather than the ‘gross agreed remuneration’.170

[293] In the decision referred to in the question, the Full Bench made the following observation:

‘Modern awards provide a safety net of minimum entitlements. The modern award prescribes the minimum rate an employer must pay an employee in given circumstances. Overaward payments, while permissible, are not mandatory. Further, if an employer chooses to pay an employee more than the minimum amount payable for ordinary hours worked, the employer is not required to use that higher rate when calculating penalties or loadings. We are not persuaded by the submissions advanced by union parties and do not propose to replace the terms 150% and 200% with time and a half or double time, etc.’ 171

[294] While we accept that the reference to ‘gross agreed remuneration’ is reflective of the current award, we have decided that the reference should instead be to the minimum rates in clause 13. We reiterate our view that modern awards provide a safety net of minimum entitlements. The exposure draft will be updated to reflect this change as follows:

81.2 Penalty and overtime rates will be based on hourly rates calculated from the employee’s ordinary time minimum rate in clause 13. on which the employee’s gross agreed remuneration is based. A divisor of 38 will be used for such calculations.

[295] We note that this amendment to clause 81.2 of the exposure drat does not factor in any all-purpose allowance payable. If interested parties think further re-drafting is necessary to account for any other applicable allowances they are invited to provide a comment on this point, see the Next steps below.

[296] There are no other outstanding issues for this Full Bench to determine with regards to the Broadcasting Award.

2.12 Car Parking Award 2010

[297] On 3 November 2016 the Commission published an initial exposure draft based on the Car Parking Award 2010 172 (Car Parking Award) along with a comparison document.

[298] Submissions in reply to the exposure draft were received from UV and AFEI.

[299] Initial summaries of submissions were published for the technical and drafting matters and the substantive issues on 8 March 2017. The Commission conducted a conference on 29 March 2017. A Report to the Full Bench was published on 24 April 2017 referring to the updated summaries of submissions for the technical and drafting matters and the substantive issues.

[300] An updated summary of submissions document for the technical and drafting matters was published on 20 November 2017.

[301] The exposure draft will be updated according to the agreed technical and drafting variations in the Deputy President’s Report. There are no outstanding technical and drafting matters for this Full Bench to determine.

[302] If interested parties seek to pursue the outstanding substantive matter, pertaining to ordinary hours of work and rostering, they should advise the Commission of their intention in accordance with the Next Steps below.

[303] There are no other matters for this Full Bench to determine in relation to the Car Parking Award.

2.13 Cemetery Industry Award 2010

[304] An exposure draft based on the Cemetery Industry Award 2010 173 (Cemetery Industry Award) was published on 3 November 2016 along with a comparison document setting out the changes made to the award. Submissions in relation to the exposure draft were received from the following parties:

•  ABI;

•  AFEI;

•  AWU; and

•  UV.

[305] ABI and AFEI made submissions in reply and a summary of submissions was published on 8 March 2017. A conference was held on 29 March 2017 to discuss the issues set out in the summary of submissions and a report and directions was published on 31 March 2017.

[306] An updated summary of submissions document for technical and drafting matters was published on 20 November 2017. A number of technical and drafting matters remained outstanding and require determination. These matters are considered below.

Item 1 – Title and commencement clause

[307] Item 1 of the summary of submissions was in relation to the wording of the Title and commencement clause. This issue has been dealt with in the 6 July 2017 decision. 174

Item 2 – Coverage

[308] Item 2 was in relation to a question posed by the Commission in the exposure draft about whether the phrase ‘cemetery and crematorium industry’ contained in the coverage clause should be defined. The parties filed a joint submission on 18 April 2017 stating that the parties were agreed that the definition of the term was unnecessary. 175 We consider the matter resolved and no further action is required by this Full Bench.

Item 3 – Variations made by Fair Work Commission drafting

[309] Item 3, in relation to clause 5, has been included in all Group 4 exposure drafts in accordance with plain language principles and will be retained.

Item 4 – Casual employment

[310] The interested parties agreed to retain the current wording and vary, as appropriate, depending on the outcome of the casual and part-time employment common issues Full Bench. The recent decision does not appear to touch on the matters addressed in the re-wording of the exposure draft. 176

[311] In our view the wording of the exposure draft is an improvement and is consistent with plain language principles. In the absence of any cogent reasons presented by the interested parties, the exposure draft wording will be retained.

[312] The remaining items were addressed in the revised exposure draft published on 31 March 2017. There have been no further comments from interested parties in relation to these issues so we propose that changes made in the revised exposure draft be adopted.

[313] There are no other outstanding matters for this Full Bench to determine in relation to the Cemetery Industry Award.

2.14 Children’s Services Award 2010

[314] On 17 May 2016 the Commission published an initial exposure draft based on the Children’s Services Award 2010 177 (Children’s Award) together with a comparison document showing the changes made to the structure and language in the award. Interested parties were provided with an opportunity to file written submissions and submissions in reply on the drafting and technical issues in the exposure draft. Submissions were received from the following parties:

•  ABI;

•  Australia Childcare Alliance (ACA);

•  AFEI;

•  Ai Group;

•  Business SA;

•  Community Connections Solutions Australia (CCSA);

•  Department for Education and Child Development – South Australia (DECD);

•  G8 Education Ltd (G8 Education); and

•  UV.

[315] A final report was published on 27 July 2017 setting out the matters dealt with at conferences held on 7 February, 27 March and 1 May 2017. A number of issues raised were resolved at the conferences. A summary of submissions document was initially published on 30 November 2016. Revised exposure drafts along with a summary of submissions document were published on 6 January 2017 and 17 February 2017. The summary of submissions document was finalised and published on 19 April 2017. A further revised exposure draft was published on 19 July 2017.

[316] The updated summary of technical and drafting matters and substantive matters were published on 22 November 2017.

[317] We are satisfied that it is appropriate to make the changes agreed to by the interested parties as outlined in the final report to the Full Bench of 27 July 2017.

[318] Items 7 and 9 of the summary of submissions (republished on 19 April 2017) remain outstanding and require determination. These matters are considered below.

Technical and Drafting matters

Item 7 – Coverage

[319] UV proposed to amend clause 4.1 of the exposure draft to clarify award coverage for staff employed in child care centres who are wholly engaged in clerical work for which the award does not provide a classification. 178 UV proposes that clause 4.1 of the exposure draft should be amended as follows:

‘By inserting a new clause 4.1(e) as follows:

(e) Clerks Private Sector Award 2010.’ 179

[320] UV submitted that there is a history of industrial disputes regarding the classification of these workers, who are often classified as support workers under the Children’s Award but are properly classified under the Clerks—Private Sector Award 2010 180 (Clerks Award) as noted in United Voice v Cuddlepie Early Childhood Learning Centre.181

[321] AFEI 182 and ABI opposed this variation.183 ABI submitted that the proposed amendment will not have the intended effect as the primary functions of child care centres are not covered by the Clerks Award.184

[322] Ai Group and AFEI submitted that this proposal is a substantive change to the award. Ai Group submitted that the basis for UV’s proposed amendment is unclear and they further drew the Commission’s attention to a claim made by CCSA to vary the Clerks Award to exclude from its coverage employers covered by the Children’s Award. 185 CCSA confirmed at the conference on 7 February 2017 before Commissioner Cirkovic that this claim was withdrawn on 30 September 2016.186

[323] At the conference before Commissioner Cirkovic on 7 February 2017, UV confirmed that this proposal should not be the subject of these proceedings and that the proposal was a substantive issue. 187

[324] UV, or any other interested party, has until 19 April 2018 to advise the Commission about whether this substantive variation will be pursued, see the Next steps below.

Item 9 – Calculation of casual loading

[325] Ai Group submitted that the current award clause 10.5(a) does not calculate the casual loading on an employee’s ordinary hourly rate inclusive of an all purpose allowance, but on the hourly rate payable to a full-time employee as per the relevant classification in the minimum wages clause. On this basis, Ai Group submitted that the current award provides for a calculation of the casual loading on the minimum hourly rate and if the all purpose allowance is payable to an employee, then the allowance is added to the casually loaded rate. 188 Ai Group submitted that clause 11.1 of the exposure draft is a substantive change, departing from the current terms of the Children’s Award. Clause 10.5(a) in the Children’s Award reads as follows:

‘(a) A casual employee is an employee engaged as such and must be paid the hourly rate payable for a full-time employee for the relevant classification in clause 14—Minimum plus a casual loading of 25%.’

[326] UV submitted 189 that Ai Group’s reasoning is not supported by the text of the current Children’s Award and contradicts previous decisions of the Commission, including the July 2015 Decision.190

[327] In the July 2015 Decision, the Full Bench observed that the term ‘ordinary hourly rate’ is used in contrast to ‘minimum hourly rate’ in affected awards to make clear that all purpose allowances must be added to the minimum rate of pay before calculating any penalty rate. In affected awards, penalties and loadings are expressed as a percentage of the ordinary hourly rate (for example, ‘overtime is paid at 150% of the ordinary hourly rate’), to make clear that an all purpose allowance to which an employee is entitled must be added to the minimum rate before calculating penalties or loadings. That is, there is a compounding effect. 191

[328] The Full Bench determined that there be a consistent rule for the calculation of casual loading which should apply across all awards and that the general approach to casual loading in the exposure drafts will remain, with casual loading expressed as 25% of the ordinary hourly rate in the case of awards which contain any all purpose allowances, and as 25% of the minimum hourly rate in awards which do not contain any such allowances. 192

[329] The Full Bench also noted that issues concerning whether any existing allowance should retain its ‘all purpose’ designation or should be payable on some different basis may be considered on an award-by-award basis during the course of the Review. 193

[330] At clause 15.6 of the Children’s Award (clause 17.2(a) of the exposure draft) the award provides an all purpose allowance:

‘15.6 Qualifications allowance

A Director or Assistant Director who holds a Graduate Certificate in Childcare Management or equivalent will be paid an all purpose allowance, calculated at 5% of the weekly rate for an Assistant Director (Children’s Services Employee Level 5.4).’

[331] On 24 March 2017, Ai Group submitted that it was content for this matter to be determined on the papers. 194 There is nothing before us that persuades us to depart from the general approach adopted in the September 2015 decision. The qualifications allowance in clause 15.6 of the Children’s Award applies for all purposes and therefore the casual loading will be expressed as 25% of the ordinary hourly rate.

Substantive matters

[332] There were a number of proposals to vary the Children’s Award involving substantive changes to the award. A document summarising those proposals was first published on 11 December 2015. Some of those proposals are no longer being pressed. The summary document was further revised and republished in its final form on 19 April 2017. The summary highlights the items that have been withdrawn and that items S2 to S7A, S9, S11A, S12, S14, S16, S19 to S20A, S23, S25, S26 and S30 remain outstanding.

[333] If interested parties wish to pursue the outstanding substantive variations noted in the summary of submissions published on 19 April 2017, the matters will be referred to a specially constituted Full Bench. Interested parties are to advise the Commission about whether these matters are being pursued by 19 April 2018, see the Next steps below.

[334] A revised exposure draft reflecting the agreed position of the interested parties will be published shortly and parties will be provided with a further opportunity to comment.

2.15 Dry Cleaning and Laundry Industry Award 2010

[335] On 3 November 2016 the Commission published an initial exposure draft based on the Dry Cleaning and Laundry Industry Award 2010¹⁹⁵ (Dry Cleaning Award) together with a comparison document showing the changes made to the structure and language in the award. Interested parties were provided with an opportunity to file written submissions and submissions in reply on the drafting and technical issues in the exposure draft. Submissions were received from the following parties:

•  ABI;

•  Textile Clothing & Footwear Union of Australia (TCFUA);

•  AFEI;

•  AWU; and

•  UV.

[336] A draft report was published on 19 April 2017 setting out the matters dealt with at a conference held on 27 March 2017. A number of issues raised were resolved at the conference. Updated draft reports were published on 9 May 2017 and 21 June 2017. A revised exposure draft along with a summary of submissions document was published on 15 May 2017. A further revised exposure draft was published on 20 July 2017. The draft report of 21 June 2017 called for further comments about the contents of the report before it was finalised.

[337] ABI subsequently wrote to the commission to provide updates to the draft report following discussion amongst the interested parties. 196 The AWU also provided the Commission with a submission setting out the matters that remain outstanding.197

[338] We are satisfied that it is appropriate to make the changes agreed to by the interested parties as outlined in the Final Report to the Full Bench of 26 September 2017 and the ABI’s correspondence of 29 June 2017.

[339] We note that items 24–26 regarding ‘Transfer to lower paid job on redundancy’, ‘Employee leaving during redundancy notice period’ and ‘Job search entitlement’ were subject to an agreed position between the interested parties. These clauses are subject to the plain language re-drafting process so we do not propose to vary the exposure draft at this time.

[340] Items 19, 21, 22 and 31 of the summary of submissions (republished on 20 November 2017) remained unresolved and require determination.

Item 19 – Recall to work overtime

[341] The AWU proposed the following change to clause 22.5 of the exposure draft:

‘22.5 Recall to work overtime

An employee recalled from home to work after having left the premises of the employer will be paid for all time worked, with a minimum payment of four hours.’

[342] The AWU submitted that the inclusion of the words “from home” may negate an employee’s entitlement to the four hour minimum payment if they did not return home after completing work. The TCFUA supported the AWU’s amendment in principle. AFEI opposed the amendment on the basis that it would be a substantive change.

[343] The current Dry Cleaning Award provision, clause 22.4, is in identical terms to the exposure draft. As such, we agree that the variation proposed by the AWU would be a substantive variation.

[344] We have considered a number of “recall to work” provisions that appear in other modern awards and agree that the apparent requirement for an employee to be at home when recalled to duty is neither unique nor standard.

[345] In the Cleaning Services Award 2010 198 the recall to work provision does not require an employee to return home:

‘28.8 Where an employee, following the completion of their ordinary hours leaves the workplace and is recalled to duty at any workplace of the employer, overtime payments will apply for a minimum of two hours. However the interval between the completion of ordinary hours and the commencement of overtime will not be regarded as time worked.’

(emphasis added)

[346] However, in the General Retail Industry Award 2010 199, employees are entitled to an allowance in circumstances where they are recalled to work after returning home:

‘20.10 Recall allowance

(a) Unless otherwise agreed an employee recalled to work for any reason, before or after completing their normal roster or on a day on which they did not work, will be paid at the appropriate rate for all hours worked with a minimum of three hours on each occasion.

(b) The time worked will be calculated from the time the employee leaves home until the time they return home.’

[347] Given that there is no single approach across modern awards; we do not think it is appropriate to vary the exposure draft. If the AWU, or any other party, wish to pursue a substantive variation to the recall provisions can do so in accordance with the Next Steps below.

Item 21 – Time off instead of payment for work on a Saturday, Sunday or public holiday

[348] The AWU submitted that clause 23.4 of the exposure draft should be varied to include an additional provision to guarantee payment on termination to an employee if the time off has not been taken. The AWU suggested that the wording used in clause 22.3(h) of the exposure draft (or 22.2(h) of the current modern award) appears suitable.

[349] The current Dry Cleaning Award provision, clause 22.5(d), is in identical terms to the exposure draft. As such, the variation proposed by the AWU would be a substantive variation.

[350] Our provisional view is that the variation proposed is appropriate and could be achieved by replicating clause 22.2(h) of the Dry Cleaning Award. For example by inserting a new clause 23.4(e) of the exposure draft:

‘(e) If, on the termination of the employee’s employment, time off for overtime worked by the employee to which clause 23.4 applies has not been taken, the employer must pay the employee for the overtime at the overtime rate applicable to the overtime when worked.’

[351] Interested parties are invited to comment on our provisional view by 19 April 2018, see the Next steps below.

Item 22 – Definitions

[352] The AWU raised concerns about clause 24.1 of the exposure draft because it does not provide a span of hours for all shifts. The AWU proposed the following variation to the exposure draft: 200

‘24.1 Definitions

(a) Morning shift—dry cleaning means a shift commencing before 7.00 am and finishing after midday

(b) Morning shift—laundry means a shift commencing before between 4.00 am and 6.00 am.

(c) Afternoon shift means a shift finishing after 6.00 pm and at or before midnight.

(d) Night shift—dry cleaning means a shift finishing after midnight and at or before 8.00 am.

(e) Night shift—laundry means a shift finishing after midnight and at or before 8.00 am; or a shift commencing before 4.00 am.’

[353] The interested parties agreed that a variation was necessary but did not agree on the form a variation should take. The Commission wrote to interested parties on 8 September 2017 to seeking comment on the following draft variation: 201

‘24.1 Definitions

(a) Morning shift—dry cleaning means a shift commencing before 7.00 am and finishing after midday.

(b) Morning shift—laundry means a shift commencing before 6.00 am and finishing after midday.

(c) Afternoon shift means a shift finishing after 6.00 pm and at or before midnight.

(d) Night shift means a shift finishing after midnight and at or before 8.00 am.’

[354] AFEI objected to the draft variation to the shift definitions on the basis that it would be a substantive variation. 202 The TCFUA objected to the draft variation on the basis that it may result in some employees missing out on either a night or morning shift allowance.203

[355] The exposure draft clause 24.1 provides the same shift definitions as the current modern award clauses 23.2–23.4. The exposure draft does, however, separate the sub-clauses for the two employment categories with regards to morning shifts.

[356] The concern raised by the TCFUA in response to the re-drafted clause 24.1(b) (laundry employees) applies equally to the existing terminology in clause 24.1(a) (dry cleaning employees). It appears that this gap identified by the TCFUA has always existed in the modern award in so far as it applies to dry cleaning employees, so it may be necessary to consider re-drafting the entire clause. It may also be necessary to consider what shift lengths and hours of the day are intended to be captured by each definition and whether having a range of hours for commencing and completing a shift, as per the AWU’s draft, may clarify the operation of the clause.

[357] In the absence of any agreement amongst the interested parties, we will not make any change to the exposure draft. Interested parties may pursue substantive re-drafting of this provision as set out in the Next steps below.

Item 31 – Full-time and part-time adult laundry employees

[358] The AWU raised concerns about the inclusion of rates of pay for ordinary hours worked on a Saturday in the summary of wages tables in Schedule 3 of the exposure draft (clauses C.2.1 and C.3.2) and submitted that the Dry Cleaning Award does not allow for laundry employees to perform ordinary hours on a Saturday.

[359] The interested parties have not been able to come to an agreed position as to the applicable rate for work performed on Saturdays.

[360] The current Dry Cleaning Award provision, clause 21.2(a), provides as follows:

‘(a) The ordinary hours of work will average 38 hours per week. Ordinary hours may be worked Monday to Friday between the spread of hours of 6.00 am to 6.00 pm and may be worked in one of the following arrangements’

(emphasis added)

[361] The exposure draft is written in similar terms:

‘14.2 Ordinary hours may be worked Monday to Friday between the spread of hours of 6.00 am to 6.00 pm and may be worked in one of the following arrangements’

(emphasis added)

[362] Our provisional view is that there is no scope for laundry workers to perform ordinary hours of work on a Saturday. As such, the Summary of Hourly Rates of Pay tables in clause C.2.1 and C.3.2 of the exposure draft will be updated to remove the two columns that list Saturday rates.

[363] It appears to us that the tables in clauses C.2.2 and C.3.3 adequately capture the rates of pay for hours worked on a Saturday. If parties disagree, they can propose any further variations to the rates tables by 19 April 2018, see the Next steps below.

Item 9 – Ordinary hours of work—dry cleaning workplaces

[364] The AWU originally made a submission that the ordinary hours of work in exposure draft clause 13.1 should be varied as follows:

‘13.1 The ordinary hours of work will average be 38 hours per week.’

[365] The AWU subsequently withdrew its submission; however we have considered the history of the clause and whether it creates any ambiguity (See Attachment B).

[366] The ordinary hours of work for laundry stream employees (exposure draft clause 14.1) also provides for an average of 38 hours per week. The subsequent clause provides a methodology for averaging hours over a four week cycle. Conversely, there is no averaging mechanism for dry cleaning stream employees.

[367] The AWU’s submission was opposed by AFEI who submitted that employers commonly use the averaging mechanism for laundry workplaces to calculate the average hours for dry cleaning workplaces. This seems, to us, to be an unintended outcome for dry cleaning workplaces.

[368] We consider that the lack of an averaging mechanism for dry cleaning workplaces creates an ambiguity and should be amended. We consider that there are two options for rectifying the ambiguity: either to develop and insert an averaging cycle or to remove the word “average”.

[369] Inserting an averaging cycle would be a substantive variation that would need to be referred to a separate Full Bench for consideration. The outcome of such proceedings may be to expand the application of the averaging cycle that currently applies to laundry workplaces or may result in the development of a separate clause for dry cleaning workplaces.

[370] The commission wrote to the interested parties on 8 September 2017 to seek clarification of their positions with regards to either option. 204 The AWU205, the TCFUA206 and UV207 agreed that removing the word “average” would clarify the clause. ABI208 and AFEI209 opposed the variation on the basis that it would be a substantive variation.

[371] We do not agree that removing the word “average” would be a substantive variation because, as it stands, without any averaging cycle or corresponding overtime provisions, the word has no practical impact on the operation of the award. The only way the clause can currently operate is to require 38 hours of work per week because there is no scope to average hours over any defined period of time.

[372] The exposure draft will be varied by removing the word “average” and inserting the word “be” as per the AWU’s draft in [364] above.

[373] If interested parties wish to pursue the outstanding substantive variations noted in the summary of submissions published on 31 May 2017, the matters will be referred to a separately constituted Full Bench. Interested parties are invited to advise the Commission about whether these matters are being pursued by 19 April 2018, see the Next steps below.

[374] There are no other outstanding matters with regards to the Dry Cleaning Award.

2.16 Educational Services (Teachers) Award 2010

[375] An initial exposure draft based on the Educational Services (Teachers) Award 2010 210 (Teachers Award) was published on 13 May 2016 along with a comparison document.

[376] Interested parties made submissions in response to the exposure draft and a summary of submissions was published on 30 November 2016. Submissions were received from:

•  ABI;

•  Independent Education Union of Australia and another (jointly IEU);

•  UV; and

•  AFEI.

[377] Commissioner Cirkovic conducted a number of conferences with interested parties on 30 January 2017, 7 March 2017 and 30 March 2017. The Commissioner provided a Report to the Full Bench on 27 July 2017. The report set out the technical and drafting matters that had been withdrawn or resolved between the parties.

[378] An updated summary of submissions was published for the technical and drafting matters on 21 November 2017. The outstanding item is considered below.

Item 25 – Summary of Rates of Pay

[379] Item 25, concerns the summary of hourly rates of pay. IEU and AFEI agreed that hourly rates of pay are not appropriate in the Teachers Award because the rates are not calculated by reference to a 38 hour work week.

[380] Based on the submissions provided, we agree that it is not appropriate to provide a schedule of hourly rates of pay for full-time and part-time employees. The entire clause B.1 will be deleted from the exposure draft. On that basis, the table in clause 17.1 of the exposure draft will also be varied to remove hourly rates of pay.

[381] A separate Full Bench (AM2015/6) was convened to determine a number of substantive matters in a number of education sector awards. Interested parties are to advise the Commission if they seek to pursue any substantive matters that have not been determined by the other Full Bench by 19 April 2018, see the Next steps below.

[382] There are no other outstanding issues for this Full Bench to determine with regards to the Teachers Award.

2.17 Electrical, Electronic and Communications Contracting Award 2010

[383] On 23 May 2016 the Commission published an initial exposure draft based on the Electrical, Electronic and Communications Contracting Award 2010 211 (Electrical Contracting Award) along with a comparison document.

[384] Submissions and submissions in reply were received from a number of parties including:

•  CEPU – Electrical, Energy and Services Division (CEPU);

•  Fire Protection Association Australia (FPAA);

•  National Electrical and Communications Association (NECA);

•  Business SA;

•  National Electrical and Communications Association – SA (NECA-SA);

•  Master Electricians Australia (MEA);

•  Ai Group; and

•  ABI.

[385] Initial summaries of submissions for the technical and drafting matters and the substantive issues were published on 30 November 2016 and 6 January 2017 respectively.

[386] Subsequently a number of conferences have been convened by the Commission. Deputy President Lawrence prepared an initial Report to the Full Bench on 30 November 2016. Deputy President Gostencnik subsequently prepared a further Report.

[387] An updated summary of the substantive issues was published on 8 August 2017. An updated summary of technical and drafting matters was published on 23 November 2017.

[388] The interested parties agreed to a number of technical and drafting variations and the exposure draft will be updated to reflect those agreed changes. There are a number of matters that remained outstanding and require determination by this Full Bench.

Item 15A – Hours of work

[389] FPAA has sought a number of variations to the hours of work provisions in clause 13 of the exposure draft. The item has been re-classified as Item S6B of the substantive matters.

Item 18 – Rest Break

[390] The Commission posed a question about whether the rest break provision in clause 13.9 only applies to day workers. The interested parties did not agree on an interpretation of the existing clause but agreed that there should be no change to the exposure draft. On that basis, we will not amend the exposure draft.

Item 42 – Proposed new shiftwork clause

[391] Following further consultations between the interested parties, the FPAA provided a report back. 212 The correspondence sought to clarify the scope of the variations sought and noted that, in the FPAA’s view, the variations were not substantive in nature. Ai Group and ABI had previously raised concerns about the proposed variations and there has been no further correspondence advising that their objections have been withdrawn.

[392] In the absence of a consent position between the interested parties, it is our provisional view that this matter is closely aligned with item 15A mentioned above. Accordingly it is appropriate to re-classify this item as a substantive matter to be determined by separate Full Bench. Interested parties may advise the Commission by 19 April 2018 if the matter can be resolved as part of the technical and drafting stage as per FPAA’s draft determination or otherwise. 213

Items 47 – 65 – various matters in Schedule B

[393] Given the overlapping nature of the submissions made in relation to Schedule B, all proposed variations will be referred to a separately constituted Full Bench for consideration and determination.

[394] There are no other matters for this Full Bench to determine with regards to the Electrical Contracting Award.

2.18 Fast Food Industry Award 2010; General Retail Industry Award 2010; Hair and Beauty Industry Award 2010; Hospitality Industry (General) Award 2010; Restaurant Industry Award 2010

[395] The technical and drafting matters in the Fast Food Industry Award 2010; 214 the General Retail Industry Award 2010;215 the Hair and Beauty Industry Award 2010;216 the Hospitality Industry (General) Award 2010;217 and the Restaurant Industry Award 2010218 have been referred to the Plain Language Full Bench to determine as part of the re-drafting process.

[396] Any outstanding substantive matters will be dealt with by a separate Full Bench following the plain language process.

2.19 Food, Beverage and Tobacco Manufacturing Award 2010

[397] An initial exposure draft based on the Food, Beverage and Tobacco Manufacturing Award 2010 219 (Food Manufacturing Award) was published on 16 November 2016. A summary of submissions was published on 8 March 2017.

[398] A final Report was provided to the Full Bench on 7 June 2017. The exposure draft will be amended as per the changes agreed to in the Report. An updated summary of submissions for the technical and drafting matters was republished on 20 November 2017.

[399] A number of technical and drafting amendments remain outstanding and require determination.

Items 9 and 10 – Facilitative provisions

[400] Items 9 and 10 refer to the list of facilitative provisions in clause 7.2 of the exposure draft.

[401] The list of facilitative provisions has been raised in a number of awards and is dealt with at [756].

Item 18 –Full-time employment

[402] Item 18 refers to Full-time employment. The Commissioner’s Report to the Full Bench expressed the provisional view that there was no need to include the words ‘in this award’ but consistency with other awards would be considered.

[403] There is no consistent phrasing of the “types of employment” clauses across modern awards or in the plain language re-drafting process.

[404] The equivalent clause in the current Food Manufacturing Award is phrased:

‘11. Full-time employment

Any employee not specifically engaged as a part-time or casual employee is for all purposes of this award a full-time employee, unless otherwise specified in this award.’

[405] The wording proposed in the exposure draft of the Food Manufacturing Award is:

‘8. Full-time employment

Any employee not specifically engaged as a part-time or casual employee is for all purposes of this award a full-time employee, unless otherwise specified.’

[406] The exposure draft titled Manufacturing and Associated Industries and Occupations Award 2016 adopts similar terminology:

‘6.2 Full-time employment

Any employee not specifically engaged as being a part-time or casual employee is for all purposes of this award a full-time employee, unless otherwise specified in this award.’

[407] We agree with the Commissioner’s provisional view that the phrasing in the exposure draft is clearer and, accordingly, we do not intend to vary the exposure draft.

Item 27 – Apprentices

[408] Item 27 is the AMWU’s proposal to amend the Apprentice provisions in clause 11 of the exposure draft to include a probation period for apprentices. The AWU and Ai Group do not oppose the variation proposed by the AMWU.

[409] Probation periods are discussed at some length above at [50]. For those reasons, no probation period clause will be inserted into the exposure draft.

Item 33 – Adult employee minimum wages

[410] Item 33 is Ai Group’s submission about the minimum weekly wages column in clause 14.1 of the exposure draft. Ai Group submitted that the clause could be misunderstood to mean that all employees are entitled to the rates prescribed in the table. There was no consensus amongst the interested parties about whether to adopt Ai Group’s proposal.

[411] Clause 14.1(b) clarifies that the minimum wages expressed in clause 14.1(a) are based on 38 hours of work. In our view, the exposure draft has been drafted consistently with the current award provisions and we do not intend to adopt the variations suggested by Ai Group at this time. This matter will be given further consideration by the Plain Language Full Bench. 220

Item 35 – Allowances and Special Rates

[412] Item 35 concerns the AMWU’s submissions about amendments to the allowances in clause 20 of the exposure draft. We agree with Ai Group’s submission that the approach to drafting the allowances clause is consistent with the approach taken in other exposure drafts. We do not intend to adopt the variations suggested by the AMWU.

Item 45 – Rates for shiftworkers

[413] Item 45 is Ai Group’s submission about shiftworker rates. 221 Ai Group submitted that clauses 24.1(e) and 24.3(d) of the exposure draft represent a substantive variation to clause 31.3(d) of the current Food Manufacturing Award because it may require the payment of the allowance for all ordinary hours worked during an engagement on permanent night shifts including ordinary hours that do not form part of a night shift.

[414] Clause 31.3(d) of the Food Manufacturing Award currently says:

‘(d) An employee who:

(i) during a period of engagement on shift, 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 the employee at least one third of their working time off night shift in each shift cycle,

must, during such engagement, period or cycle, be paid 30% extra for all time worked during ordinary working hours on such night shift.’

[415] Clause 24.1(e) of the exposure draft says:

‘(e) permanent night shift means a period of engagement on shiftwork where an employee:

(i) works night shift only;

(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 the employee at least one third of their working time off night shift in each shift cycle’

[416] Clause 24.3(d) of the exposure draft has been drafted as follows:

‘(d) An employee who works on permanent night shift must be paid 130% of the ordinary hourly rate for all time worked during ordinary working hours on an engagement, period or cycle on permanent night shifts.’

[417] We disagree with Ai Group’s submission that the exposure draft represents a substantive variation to the existing Food Manufacturing Award provisions. The drafting and introduction of clause 24.3(d) of the exposure draft is intended to clarify the definition of permanent night shift and thereby clarify the applicable loading. We do not intend to vary the exposure draft.

Item 47 – Annual leave loading

[418] Item 47 concerned a question raised by the FWO about how to calculate the 17.5% annual leave loading and whether it was supposed to be calculated on a daily basis or over the entire period of annual leave. 222

[419] There was no unanimous view by the interested parties. We agree that clause 25.5 of the exposure draft (clause 34.5 of the current Food Manufacturing Award) may be ambiguous. We note Commissioner Lee’s comment that this issue has been identified in a number of modern awards. As such this matter requires a consistent approach and is discussed further below at [760]–[762].

[420] A summary of submissions about the substantive matters raised about the Food Manufacturing Award was published on 8 March 2017. If interested parties intend to pursue the outstanding substantive matters further submissions can be made in accordance with the directions in the Next steps below.

[421] There are no other outstanding issues for this Full Bench to determine with regards to the Food Manufacturing Award.

2.20 Funeral Industry Award 2010

[422] The Commission published an exposure draft based on the Funeral Industry Award 2010 223 (Funeral Award) along with a comparison document on 16 November 2016. Submissions and submissions in reply in relation to the exposure draft were received from the following parties:

•  ABI;

•  AFEI;

•  AWU; and

•  UV.

[423] A summary of submissions relating to technical and drafting matters was published on 8 March 2017 and a revised summary of submissions was later published on 20 November 2017. A Report was published on 31 March 2017 following a conference held on 29 March 2017 to discuss the drafting and technical matters in relation to the review of the Funeral Award. A revised exposure draft was published on 31 March 2017.

Item 1 – Title and commencement clause

[424] Item 1 of the summary of submissions was in relation to the wording of the Title and commencement clause. This issue has been dealt with in the 6 July 2017 decision. 224

Items 2, 4, 11, 9, 13 and 14

[425] These items were agreed by the interested parties and the changes were made to the revised exposure draft. We are satisfied that it is appropriate to adopt the agreed changes.

Item 3 – Variations made by Fair Work Commission drafting

[426] Item 3, in relation to clause 5, has been included in all Group 4 exposure drafts in accordance with plain language principles and will be retained.

Item 5 – Spread of ordinary hours of work

[427] Item 5 relates to the spread of hours clause and the objection by ABI to the removal of the phrase ‘any or all days’ and the word ‘inclusion’. ABI subsequently withdrew their objection 225 and we propose retaining the wording in the exposure draft.

Item 6 – Rest after early morning work

[428] Parties confirmed that the rest break referred to in item 6 may be paid or unpaid depending on an employee’s roster. If an employee is rostered to work ordinary hours that were due to commence before they have had eight hours off work since finishing their previous shift then the employee will be paid for those ordinary hours. The wording of clause 14.1 in the revised exposure draft will be retained.

Items 7 and 8 – Rest periods and meal break

[429] Parties also confirmed that the rest break referred to at item 7 was paid and the meal break at item 8 was unpaid. The wording of clauses 14.2 and 14.3 in the revised exposure draft will be retained.

Item 10 – Uniform allowance

[430] Item 10, in relation to clause 16.3(c) of the exposure draft, was previously considered a technical and drafting matter and has since been reclassified as a substantive matter. If pursued, the substantive matters in this award will be referred to a separately constituted Full Bench for determination.

Item 12 – Overtime for shiftworkers

[431] Item 12 refers to a question in the exposure draft asking whether the ‘applicable rate’ contained in the overtime clause was the ‘minimum hourly rate’ or the shiftwork rate. At the conference it was indicated that this matter would be dealt with on the papers. 226

[432] AFEI submitted that the rate was the minimum hourly rate and proposed changing the wording of the clause to ‘applicable minimum hourly rate’. 227 In support of this submission, AFEI pointed to the afternoon shift penalties in clause 18.5 of the exposure draft which refers to the minimum hourly rate and submitted that both the current Funeral Award and the exposure draft ‘clearly contemplate’ that overtime penalties are payable in different circumstances than those in which shift loadings apply.228

[433] ABI also submitted that the ‘applicable rate’ referred to in the Funeral Award is the minimum hourly rate for the reason that there is nothing in the current drafting to give rise to an employee being paid shift loadings while working overtime. 229 In support of this submission, ABI referred to the wording of clause 18.6 of the exposure draft, which is in similar terms to the current Funeral Award, and states that overtime rates are applicable to:

‘All time worked in excess of, or outside the ordinary working hours in clause 18.2, or on a shift other than a rostered shift…’ 230

[434] ABI submitted that when an employee is working the overtime shifts referred to in clause 18.6 they are no longer performing work within the meaning of an afternoon shift within the meaning of clauses 18.1 and 18.2 of the exposure draft as those clauses only deal with ordinary hours of work. 231

[435] The AWU submitted that the rate referred to in the overtime clause is the shiftwork rate and that their position reflects a plain reading of the clause. 232 In support of this submission, the AWU referred to the language of the exposure draft highlighting that the overtime provisions for shiftworkers are “clearly drafted to ensure the rate paid to a shift worker performing overtime will vary” according to the applicable shift penalty.233

[436] The AWU further submitted that the principle of additional remuneration in s.134 of the Act includes consideration of the need to provide additional remuneration for distinct categories of overtime and shiftwork. The AWU submitted that the submissions of ABI and AFEI are inconsistent with these principles.

[437] The AWU submitted that the practical effect of the construction proposed by ABI and AFEI is as follows:

•  that continuous and non-continuous shiftworkers are paid the same overtime rates as a dayworker;

•  non-continuous shiftworkers are paid the same overtime rates as continuous shiftworkers; and

•  non-continuous shiftworkers would be paid the same rates for the first three hours for overtime as when performing their ordinary hours.

[438] The AWU submitted that this could not be the intended effect of the Funeral Award.

[439] In reviewing the history of the Funeral Award, the AWU submitted that the current award was based on the Funeral Industry Award 2003 (Victorian Funeral Award) 234 that applied in Victoria.235 The AWU noted that the Victorian Funeral Award was divided into two streams, one for funeral directors and one for coffin makers which were combined into a single stream in the modern award. The AWU conceded that, in the funeral director stream in the Victorian Funeral Award, overtime rates were paid in substitution for shift rates. In the coffin making stream, however, the AWU submitted that overtime rates for continuous shiftworkers were ‘clearly paid in excess of shift rates’ and for non-continuous shiftworkers ‘the same is arguable’.

[440] In the Victorian Funeral Award there was a 15% allowance for continuous shiftworkers and workers on shiftwork that did not continue for five days were paid at time and a half for the first three hours and double time after that. 236 Continuous shiftworkers were entitled to double time when working overtime whereas non-continuous shiftworkers were entitled to time and a half for the first three hours and double time after that.237 The AWU noted that the apparent effect of the overtime provisions for non-continuous shiftworkers would be that they would be paid less for the first three hours of their overtime than the majority of their shift. The AWU contended that this could not be the intended effect.

[441] The AWU submitted that, absent any submissions or specific commentary from the Award Modernisation Full Bench, the best inference to be made is that when the current Funeral Award rationalised the streams of the Victorian Funeral Award the effect was that the cumulative payment of overtime and shiftwork was extended to all classifications.

[442] UV submitted that the ‘applicable rate’ referred to in the clause means ‘the rate the employee would have earned if they worked ordinary hours at the time they were working overtime’. 238 UV submitted that this includes the relevant shift rate, penalty rates and any all purpose allowance. UV submitted that the use of the phrase ‘applicable rate’ suggests the rate being referred to may vary from time to time as opposed to the minimum rate which would not vary.

[443] UV further submitted that it is unlikely that the award modernisation Full Bench intended for ‘applicable rate’ to mean minimum hourly rate as clause 19.1 of the exposure draft, which provides overtime provisions for dayworkers, refers to the ‘ordinary rate’ which UV submitted is a more beneficial entitlement than the minimum hourly rate. UV submitted that is unlikely that the Commission set an overtime entitlement at a lesser rate than for dayworkers.

[444] UV referred to clause 9.6 of Schedule A of the Victorian Funeral Award which contains provisions for overtime worked by funeral directors engaged as shiftworkers. UV submitted that the Victorian Funeral Award contained a definition for ‘ordinary pay’ which included shift premiums and that a shiftworker’s ordinary pay would include shift premiums.

[445] UV noted further that the definition of ‘ordinary pay’ was excluded from the modern award at award modernisation.

[446] We begin our consideration of this issue by noting that. contrary to the unions’ position, clause 9.6.5 of the Victorian Funeral Award explicitly states that overtime is not cumulative on shift allowances:

‘9.6.5 The rates prescribed in 6.2 are in substitution for, and not cumulative on, the shift premiums prescribed in 9.5 of this Schedule.’

[447] The Victorian Funeral Award refers to ‘ordinary pay’ in the body of the award in the clauses relating to annual leave. In the modern award the annual leave clause refers to the National Employment Standards with no mention of the phrase ‘ordinary pay’ in that clause or anywhere else in the award. It is possible that the definition of ‘ordinary pay’ was removed as it was no longer used in the award. It is not clear what other inferences may be drawn from this point.

[448] The anomaly of the overtime rates for shiftworkers appears to be a longstanding issue. The 1994 award also provided separate rates for separate streams (L8102 – Funeral Industry Award 1994). Funeral directors that worked non-continuous shiftwork would be paid at the rate of time and a half for all ordinary hours. Funeral directors working afternoon or night shift were paid a 20% shift premium. The overtime provision applying to both continuous and non-continuous shiftworkers was time and half for the first 3 hours and double time thereafter. There is no mention of whether the shift premium was to be included in this calculation.

[449] Coffin makers working shiftwork had a 15% premium for afternoon and night shift. Shiftworkers working shift work that did not continue for 5 days were paid 150% for the first 3 hours and 200% after that. The overtime provisions for continuous shiftworkers was 200% and for non-continuous shiftworkers was 150% for the first 3 hours and double time after that. There is no mention of whether the shift premium was to be included in this calculation.

[450] On a plain reading of the text in the current Funeral Award, the use of the words ‘applicable rate’ for shiftworkers as contrasted with the words ‘ordinary rate’ for employees other than shiftworkers, suggests that the rates applying to the two types of employment are different. It is also clear on a plain reading of the Victorian Funeral Award that funeral directors working on shiftwork were not entitled to be paid the overtime rate cumulative on their shift allowances.

[451] The Victorian Funeral Award is explicit in stating that for coffin makers who work shiftwork on a Saturday at time and a half, the overtime loading will not be cumulative on the shift premiums. The AWU and UV appear to draw the inference that because the overtime provisions do not expressly state that the rates are not cumulative that they ought to be cumulative.

[452] The purpose of the afternoon and night shift premium in the Victorian Funeral Award and in the modern award is to remunerate employees for the inconvenience of working unsocial hours. The overtime provisions are to compensate employees for working in excess of or outside their ordinary hours. It appears to us that neither the Victorian Funeral Award nor the Funeral Award intend to compound the afternoon or night shift premium and overtime rates, nor does it seem likely that the overtime rates are in substitution for penalty rates.

[453] It is reasonably clear that, under the Victorian Funeral Award, coffin makers working shiftwork were entitled to their shift penalty while working overtime. This rate would have been cumulative on the overtime rate rather than in substitution. We are, on balance, persuaded that the Award Modernisation Full Bench, in combining the provisions for funeral directors and coffin makers, did not intend to lower the provisions for coffin makers. Our provisional view is that the shift penalty for employees working on an afternoon shift would be calculated on the employees’ minimum hourly rate as would the overtime rate. The resultant amounts would be added together. We will include words to this effect in the exposure draft and update Schedule A.

[454] Parties will have a further opportunity to comment on this provisional view, see the Next steps below.

Items 15 and 16 – Overtime

[455] Items 15 and 16 concern the interaction between the clauses relating to recalls (clause 19.1(b) of the exposure draft) and removals (clause 19.4 of the exposure draft) and the clauses providing minimum periods of engagement for part-time and casual employees (clauses 10.5 and 11.3 of the exposure draft).

[456] The minimum periods of engagement for part-time and casual employees are three and four consecutive hours, respectively. Clause 19.1(b) of the exposure draft provides a minimum payment of one hour’s work for recall work outside the hours of 7.00 am to 7.00 pm (if this work had not already been arranged) on each occasion the employee is recalled. Clause 19.4(a) of the exposure draft provides that where an employee is called to undertake removal work between the hours of 7.00 pm and midnight and that work is completed at or before midnight, the employee will be paid a minimum payment of two hours for any removal work performed. Clause 19.4(b) of the exposure draft provides a minimum payment of two hours for any removal work between the hours of midnight and 7.00 am.

[457] AFEI submitted that a casual or part-time employee who is recalled to work overtime before 7.00 am or after 7.00 pm, in accordance with clause 19.1(b), would be entitled to one hour’s pay instead of the three or four hour minimum period of engagement provided in clauses 10.5 and 11.3 of the exposure draft. Similarly, AFEI submitted that clause 19.4, which provides a minimum payment of two hours for removals, will operate instead of the minimum periods of engagement for casual and part-time employees in clauses 10.5 and 11.3 of the exposure draft. AFEI submitted that the recall and removal overtime clauses provide additional compensation in circumstances where an employee is required to work undesirable hours and that paying an employee for three or four hours at 150% or 200% would mean employees are effectively compensated twice. 239

[458] ABI submitted that clauses 10.5 and 11.3 and clauses 19.1(b) and 19.4(a)–(b) of the exposure draft do not interact. ABI’s rationale is that the clauses relating to recall and removals are specific and override the more general provisions contained in clauses 10.5 and 11. 240 ABI provided an example whereby a casual employee, who would ordinarily have a four hour engagement period under clause 11.3, has a two hour minimum engagement when performing removal work.

[459] The AWU submitted that the entitlement to a minimum payment of one and two hours for recalls and removals (respectively) are applicable only to full-time employees. In particular, the AWU submitted that the entitlement to one hour’s pay in clause 19.1(b) for recall work and the minimum payment of two hours for removals performed in clause 19.4(a) and (b) only have work to do because, unlike casual or part-time employees, full-time employees do not have a minimum period of engagement elsewhere in the Funeral Award. The AWU further submitted that where a casual or part-time employee is recalled to work they would have a minimum engagement of three and four hours in accordance with clauses 10.5 and 11.3. AWU noted that neither clauses 19.1(b) nor 19.4(a) and (b) exclude the operation of the general minimum engagement provisions applicable for all part-time and casual employees.

[460] The AWU proposed the insertion of the following additional clause 19.1(c) to clarify the interaction between the recall clause and the minimum engagement clauses for casuals and part-time employees:

‘Work performed by part-time and casual employees as prescribed in clause 19.1(b) is paid in accordance with the applicable minimum engagement periods prescribed at clauses 10.5 and 11.3.’ 241

[461] The AWU also proposed the insertion of the following additional clause 19.4(c) to clarify the interaction of the minimum engagement clauses with the provisions for removals:

‘Work performed by part-time and casual employees as prescribed in clauses 19.4(a) and 19.4(b) is paid in accordance with the applicable minimum engagement periods prescribed at clauses 10.5 and 11.3.’ 242

[462] UV submitted that provisions relating to recall and removals are for the benefit of full-time employees who do not have a minimum period of engagement. UV noted that clause 11.3 of the exposure draft provides a minimum period of engagement for casual employees of four hours ‘each time the employee is required to attend work, including when engaged more than once in any day.’ 243

Recall to work

[463] The recall to work provision is currently located within the overtime clause and concerns the recall of employees to work; other than for pre-arranged overtime.

[464] Clause 19.1(b) of the exposure draft provides:

‘(b) Where an employee is recalled to work before 7.00 am or after 7.00 pm for other than arranged overtime, the employee will be paid a minimum of one hour’s pay at the applicable overtime or penalty rate specified in either clause 19.1(a) or clause 20.1 on each occasion the employee is recalled to work overtime.’

[465] The minimum engagement for part-time employees is found at clause 10.5 of the exposure draft, it provides that:

‘10.5 A part-time employee must be rostered for a minimum of three consecutive hours on any shift.’

[466] The minimum engagement for casual employees is found at clause 11.3 of the exposure draft, it provides that:

‘11.3 A casual employee must be paid for a minimum of four hours’ work each time the employee is required to attend work, including when engaged more than once in any day.’

Recalls for part-time employees

[467] The part-time minimum engagement provision in the exposure draft has been drafted consistently with clause 10.4(d) in the current Funeral Award.

[468] The wording of the minimum engagement clause for part-time employees is such that the three hour minimum applies only to a part-time employee’s rostered or ordinary hours.

[469] As such, we have formed a provisional view that the minimum engagement period provided for in clause 10.5 of the exposure draft does not apply to the recall provisions in clause 19.1(b) for part-time employees. It is our provisional view that clause 10.5 of the exposure draft applies to an employee’s work rostered during ordinary hours, whilst clause 19.1(b) applies to an employees work outside their fixed starting and finishing times.

[470] The exposure draft states that a part-time employee has an agreed regular pattern of hours which specifies the hours and days worked and the starting and finishing times of each day, as provided at clause 10.3. It is our view that the rostering of a minimum of three consecutive hours referred to at clause 10.5 of the exposure draft refers to this agreed regular pattern of work. Therefore, the minimum engagement period does not apply in circumstances where an employee is working in excess of the rostered hours.

[471] Clause 10.7 of the exposure draft provides that all time worked in excess of the hours agreed under clause 10.3 or 10.4 will be overtime and paid for at the overtime rates at the rates prescribed in clause 19.

[472] It is therefore our provisional view that where a full-time or part-time employee is recalled to work overtime the employee is to be paid the minimum of one hour’s pay at the applicable overtime or penalty rate at clause 19.1(b) of the exposure draft. We note that the purpose of the overtime or penalty rate is to compensate employees for the disutility of working in addition to their ordinary hours and in those circumstances part-time and full-time employees do need the added protection of a minimum engagement.

Recalls for casual employees

[473] As with part-time employees, the casual minimum engagement clause in the exposure draft is in similar terms to that provided for in the current Funeral Award.

[474] The casual minimum engagement provisions are, however, very different to the provisions for part-time employees. Specifically, clause 11.3 of the exposure draft provides that casual employees ‘must be paid for a minimum of four hours’ work each time the employee is required to attend work, including when engaged more than once in any day.

[475] The casual minimum engagement provision has broader application and, in our provisional view, clause 11.3 applies to any work undertaken by a casual employee, including overtime recall work where the employee is required to attend work. The 5 July 2017 decision noted the following purpose of minimum engagement periods:

‘[399] Minimum engagement periods in awards have developed in an ad hoc fashion rather than having any clear founding in a set of general principles. However their fundamental rationale has essentially been to ensure that the employee receives a sufficient amount of work, and income, for each attendance at the workplace to justify the expense and inconvenience associated with that attendance by way of transport time and cost, work clothing expenses, childcare expenses and the like.’ 244

[476] The policy behind the above reasoning applies to the four hour minimum engagement for casual employees recalled to work overtime. Casual employees do not have the certainty of agreed hours like full-time or part-time employees and the payment of the minimum engagement period for each attendance at work provides some guarantee of sufficient work.

Removals

[477] Clause 19.4 of the exposure draft refers to payment of overtime penalties for removals work outside the ordinary hours of work at clause 13. Where an employee is called to undertake removals between the hours of 7.00 pm and midnight or any portion of which occurs between the hours of midnight and 7.00 am, there is a minimum payment of 2 hours.

Part-time employees

[478] In line with our provisional view about recalls, the minimum engagement of part-time employees for rostered work in clause 10.5 does not apply to removals work performed outside the ordinary hours of work. It is our provisional view that part time employees would receive a minimum payment of 2 hours if they were called to perform removal work.

Casual employees

[479] In line with our provisional view about recall for overtime, the casual minimum engagement period in clause 11.3 applies where a casual employee is required to undertake removals as per clause 19.4.

[480] However, as per clause 19.4(c), if a casual employee performing removal work commences the removal before the end of their ordinary rostered hours, the minimum engagement in clause 19.4 would not apply.

[481] In these circumstances, we do not think that it is necessary to make any amendment to the drafting of clause 19 of the exposure draft. Parties may comment on these provisional views by 19 April 2018, see the Next steps below.

Items S8 – Penalty rates for work on a Saturday or Sunday

[482] Item S8 concerns the interaction between the provisions for work on Saturdays and Sundays in clauses 20.1(a)(i) and 20.1(b) of the exposure draft and the minimum periods of engagement for part-time and casual employees in clauses 10.5 and 11.3.

[483] Item S8 was formerly considered a technical and drafting matter and has since been reclassified as a substantive matter, however given the consideration of items 15 and 16 above some comments may now be relevant.

[484] As stated above, the minimum periods of engagement for part-time and casual employees are three and four hours respectively. Clause 20.1(a)(i) of the exposure draft sets out a minimum period of two hours where an employee performs work, other than removals, on a Saturday and a minimum period of four hours when an employee is engaged in the carrying out a funeral on a Saturday. Clause 20.1(b) of the exposure draft sets out the minimum period of two hours for work performed on a Sunday, other than removals. A question was put to parties in the exposure draft about how these provisions interact.

[485] ABI submitted that the minimum engagement period of two hours for Saturday and Sunday work provided for by clauses 20.1(a)(i) and 20.1(b) are intended to cover the field for weekend work, including for part-time and casual employees. ABI submitted that the specific minimum periods of engagement for weekend work will therefore override the general minimum engagement periods provided for by clauses 10.5 and 11.3 of the exposure draft. 245 This position has been supported by AFEI in its submissions.246

[486] UV submitted that clauses 20.1(a)(i) and 20.1(b) provide for a minimum engagement of two hours on a Saturday and Sunday which apply to full-time employees who would not otherwise have a minimum engagement. The more beneficial minimum engagements for part-time and casual employees still apply on a Saturday. UV noted that these are penalty rate provisions so its purpose is to compensate the employee for the disability associated with weekend work. UV submitted that these provisions achieve this objective by providing both a minimum engagement for weekend work and a loading on the employee’s pay. 247 This position was supported by the AWU.248

[487] The AWU proposed the insertion of the following additional clause 20.1(d) to clarify the interaction of the minimum engagement clauses with the provisions for work on Saturday and Sunday work:

‘Work performed by part-time and casual employees as prescribed in clause 20.1 is subject to the applicable minimum engagement periods prescribed at clauses 10.5 and 11.3’ 249

[488] Consistent with our reasoning with respect to items 15 and 16, it is our provisional view that there is, in fact, an interplay between the clauses relating to work performed on weekends and the clauses providing general minimum periods of engagement for part-time and casual employees.

[489] The minimum engagement periods in clauses 10.5 and 11.3 of the exposure drafts are intended to operate regardless of those provided for in clauses 20.1(a) and (b) such that part-time and casual employees will have a minimum engagement period of three and four hours respectively. As stated earlier, this interpretation ensures consistency and certainty for part-time and casual employees with respect to their minimum engagements.

[490] We therefore support the AWU’s proposed variation and will provisionally insert a clause 20.1(d) as follows:

(d) Work performed by part-time and casual employees, as prescribed in clauses 20.1(a)–(c), is subject to the applicable minimum engagement periods prescribed at clauses 10.5 and 11.3.

[491] Parties may comment on this provisional proposal, see the Next steps below.

Item S9 – Overtime

[492] Item S9 concerns the AWU’s proposal to insert a minimum payment for time worked on public holidays under clause 20.1(c)(i) of the exposure draft. 250 Clause 20.1(c)(i) provides that an employee will be paid 200% of the their minimum hourly rate for all work performed (excluding removals) on a public holiday or a day substituted for a public holiday. Item S9 was formerly considered a technical and drafting matter and has since been reclassified as a substantive matter.

[493] The AWU noted that a minimum payment is currently provided on Saturday and Sunday, and submitted – after reviewing the pre-modern funeral awards – that the minimum payment was excluded from clause 20.1(c)(i) as a unintended (rather than a considered) outcome. 251 The AWU noted that there is no apparent reason for the inconsistency. The penalty rates applicable on Sundays and public holidays are the same, thus the value of performing work on a Sunday and public holiday has been assigned the same value under the Funeral Award. The AWU therefore submitted that the imposition or cost to an employee attending work on a public holiday should be valued equally.252

[494] The AWU proposed the following amendment to clause 20.1(c)(i) of the exposure draft:

‘200% of the employee’s minimum hourly rate will be paid for all work performed on a public holiday, with a minimum payment of two hours’ pay.’ 253

[495] The AWU submitted that their proposal does not present a significant change. Firstly, any additional wages cost relies on specific circumstances where less than two hours work is required on a given public holiday. 254 Secondly, the proposal is not new in the funeral industry as the entitlement existed in a number of pre-modern instruments.255 And, finally, a minimum payment on public holidays will ensure consistency across public holidays.256 The AWU noted that the proposed change to clause 20.1(c)(i) of the exposure draft will have limited impact on employers on the basis that it would only apply to full-time employees. The AWU assumed that part-time and casual employees will be entitled to a minimum period of engagement of three of four hours respectively for work on public holidays pursuant to clauses 10.5 and 11.3 of the exposure draft.

[496] AFEI noted that neither the exposure draft nor the current Funeral Award provide a specific minimum engagement for work performed on a public holiday. 257 Further, AFEI submitted that if the AWU is seeking to introduce a new entitlement for employees into the Funeral Award this should be pursued as a substantive claim.258

[497] We consider that the amendment proposed by the AWU would constitute a substantive change to the Funeral Award as it would effectively provide a new entitlement to employees. If the AWU wishes to pursue this matter it may do so, as a substantive change. The AWU is to advise their intentions in this regard by 19 April 2018, see the Next steps below.

Item 16A – Removals and shift work

[498] Item 16A concerns a query posed by Business SA as to the interaction between clauses 18 and 19.4(a) of the exposure draft, particularly whether overtime and shiftwork penalties apply to removal work. 259 Clause 18 deals with afternoon shiftwork penalties and overtime, while clause 19.4(a) provides for removals after 7.00 pm and before midnight and the work is completed no later than midnight.

[499] Under the current construction of the exposure draft, clause 19.3 appears to remove overtime for shiftworkers from the general overtime clause so that it is exclusively dealt with by clause 18.6 of the exposure draft. Our provisional view, however, is that clause 19.4 does not currently operate to the exclusion of clause 18.6. Comments may be made on our provisional view by 19 April 2018.

[500] If parties wish to pursue the outstanding substantive variations noted in the summary of submissions published on 8 March 2017, the matters will be referred to a separately constituted Full Bench. Parties are directed to advise the Commission about whether these matters are being pursued by 19 April 2018, see the Next steps below.

Item S7 – Uniform allowance

[501] Item S7 regarding uniform allowance remains unresolved, the interested parties can make further submissions if they wish to pursue the matter by 19 April 2018. Further instructions are set out in the Next steps below.

[502] There are no other matters for this Full Bench to determine with regards to the Funeral Award.

2.21 Hydrocarbons Field Geologists Award 2010

[503] An exposure draft based on the Hydrocarbons Field Geologists Award 2010 260 (Hydrocarbons Award) was published on 23 May 2016. A submission in response to the exposure draft was received from APESMA.261

[504] A summary of submissions was published on 30 November 2016. APESMA appeared at the hearing on 6 December 2016 and confirmed that the summary accurately reflected their position in relation to the technical and drafting issues.

[505] An updated summary of the technical and drafting submissions was published on 20 November 2017.

[506] The submission from APESMA was made in response to four questions raised by the Commission in the exposure draft. The first matter related to clause 11—Minimum Wages. The Commission asked the parties whether the basis for the payments in clause 11.2 should be clarified. APESMA submitted that it was their understanding that following the establishment of the initial rates the long established approach has been to increase the rates and allowances in accordance with Annual Wage Reviews.

[507] The second question in the exposure draft was whether it would be useful to define ‘rig-up rig-down’ in clause 12.2. APESMA submitted that the term is widely understood in the industry as referring to setting up and closing down of production and exploratory rigs. We accept the uncontested submission of APESMA in relation to the term and accordingly, no amendment will be made to the exposure draft.

[508] Parties were asked to review the packages listed in Clause C.7—Allocation of Traineeship to Wage Levels to ensure that the lists are complete. APESMA submitted that, based on available knowledge, the provision is not utilised and is therefore redundant. The National Training Wage Schedule has been deleted from the Hydrocarbons Award as part of the AM2016/17 proceedings. 262 The exposure draft will be updated accordingly.

[509] The final outstanding matter in the Hydrocarbons Award is in relation to Schedule B—Summary of Monetary Allowances. Parties were requested to confirm that the daily rig and attendance allowances are adjusted in line with changes to the standard rate. APESMA confirmed that this was their understanding.

[510] A further conference was conducted on 25 July 2017 where it was confirmed that there were no outstanding matters to determine in this award. 263

2.22 Journalists Published Media Award 2010

[511] An exposure draft based on the Journalists Published Media Award 2010 264 (Journalists Award) was published on 18 November 2016. Submissions and submissions in reply were received from MEAA,265 News Limited, Bauer Media and Pacific Magazines266 (News Ltd) and ABI.267

[512] Summaries of submissions relating to technical and drafting matters and substantive issues were published on 8 March 2017.

[513] A revised exposure draft was published on 10 May 2017. A revised summary of submissions relating to technical and drafting matters was published on 10 May and a further revised summary of submissions relating to technical and drafting matters was published on 1 September 2017.

[514] Conferences were conducted on 20 April 2017 and 12 May 2017.

[515] Following the conferences, a Report to the Full Bench was published on 1 September 2017. The Report noted that parties had advised all outstanding items had been resolved. An updated summary of submissions for the substantive matters was also published on 1 December 2017.

[516] The Full Bench is minded to accept all matters agreed between parties with the exception of item 25, as follows.

Item 25 – Public Holidays

[517] Interested parties agreed 268 to amend clause 25.3 of the exposure draft to clarify that it only applies to employees entitled to additional annual leave under clause 22.2(a).269 The News Ltd proposed wording is:

‘25.3 Employees receiving additional annual leave

(a) Clauses 25.1, 25.2, 22.4 and 22.5 does not apply to any employee receiving additional annual leave under clause 22.2(a).’

[518] Clause 25.1 states that ‘Public holiday entitlements are provided for in the NES.’ The Commission is concerned that the clause 25.1 exclusion would have the appearance of excluding the application of NES entitlements from the provisions relating to additional annual leave in clause 25.3.

[519] We are prepared to make the other proposed changes excluding clauses 25.2, 22.4 and 22.5 from applying to clause 25.3, but not clause 25.1. On that basis, we intend to vary the exposure draft as follows:

25.3 Employees receiving additional annual leave

(a) Clauses 22.4, 22.5 and 25.2 do not apply to any employee receiving additional annual leave under clause 22.2(a).

[520] If interested parties intend to pursue the outstanding substantive matters they are to advise the Commission by 19 April 2018, see the Next steps below.

[521] There are no other issues for this Full Bench to determine in relation to the Journalists Award.

2.23 Live Performance Award 2010

[522] An exposure draft based on the Live Performance Award 2010 270 (Live Performance Award) was published on 25 November 2016. Submissions in response to the exposure draft were received from MEAA and LPA.

[523] Summaries of submissions for technical and drafting and substantive issues were published on 8 March 2017. A conference was held before Deputy President Gostencnik on 27 March 2017. At the conference, MEAA and LPA resolved some of the technical and drafting issues and provided an update as to the substantive issues being pursued. Parties were directed to report back on the matters that were outstanding in the technical and drafting list and clarify any agreement reached on the substantive issues list.

[524] An individual submission from Richard Taki (Mr Taki) was received on 3 April 2017 requesting the inclusion of Drag Queen or a Drag Performing Artist category into the Live Performance Award. Revised summaries of submissions for technical and drafting and substantive issues were published on 29 May 2017.

[525] A report back conference was held on 31 May 2017. At the conference, MEAA and LPA established the outstanding substantive issues. Parties were directed to make submissions in reply to Mr Taki. 271

[526] MEAA advised that the parties reached an agreement on all matters but had not completed preparing further draft clauses. 272 A further conference was held on 17 August 2017. Mr Taki was invited but did not appear at the conference.273 MEAA and LPA did not object to the inclusion of Drag Queens in the coverage of the Live Performance Award.274 At the conference on 17 August, this item was referred to the substantive issues list to be determined.275 Parties agreed to provide a marked up draft of the Live Performance Award reflecting the agreed positions and any outstanding items by 22 September 2017.276

[527] Parties submitted an amended exposure draft containing their agreed positions. There were no outstanding issues identified. A summary of submission for technical and drafting was published on 24 October 2017.

[528] On 1 November 2017, MEAA advised the parties’ exposure draft did not incorporate the Annual Wage Review 2016–2017 and identified a typographical error. 277 LPA agreed the parties’ exposure draft addressed all outstanding issues subject to two errors in the parties’ exposure draft.278 The parties’ amended exposure draft, submissions and discussions at conference indicated all technical and drafting items were resolved by consent.

[529] Updated summaries of submissions for the technical and drafting matters and the substantive issues were published on 20 November 2017.

[530] Our preliminary view is to adopt the parties’ amendments to the exposure draft. The amended exposure draft will be published and interested parties are invited to comment on it; see Next steps below.

[531] Two outstanding technical and drafting items remain and are set out below.

Item 16 – Substantially whole time nature performances (Definition and Payment)

[532] As part of the exposure draft, the Commission asked the parties to clarify what is meant by “substantially whole time nature”.

[533] LPA submitted that clause 33 of the Live Performance Award, regarding ordinary hours of work and rostering, contains neither a rate of pay, hours of work nor the number of performances a casual employee can undertake in a day or a week. 279 LPA also highlighted that the FWO sought clarification on payments to casual employees not engaged to perform in a whole time performance.280

[534] In the conference on 27 March 2017, LPA explained one of their members (who does short performances in shopping centres) was approached by the FWO. 281 A short performance may be between 10 to 15 minutes in length.282 Following a rest break, LPA explained a performer may perform another 10 to 15 minutes in half an hours’ time throughout their day. According to the Live Performance Award, each 10 to 15 minute segment constitutes a performance and attracts a pay rate for an under an hour performance.283 As a performance is three hours, each 10 to 15 minute segment would attract a three hour payment for each performance. At conference, there did not appear to be an agreed solution.284

[535] In our view, the inclusion of the proposed definition may create ambiguity or uncertainty as the term remains substantially undefined and there remains no provision that addresses the FWO’s query.

[536] On that basis, we propose to include the following definition in clause 3 of the exposure draft:

substantially whole time nature is a performance longer than one hour.

[537] Our proposed definition is consistent with the historical use of the provision. Parties are to provide submissions on this proposed definition and any comments about payment for the type of work described in [534] by 19 April 2018, see the Next steps below.

Time versus %

[538] Interested parties have agreed to adopt terminology like ‘time and a half’ and fractions like ‘1/8^th’. Previous Full Bench decisions have confirmed that rates of pay will be expressed as a percentage of the minimum hourly rate. We do not intend to deviate from that provisional view. 285 The parties’ re-drafting will not be adopted.

[539] We invite the interested parties to confirm whether any substantive variations will be pursued by 19 April 2018 as per the Next steps below. If pursued, the substantive items will be referred to a separate Full Bench to consider and determine.

[540] There are no other outstanding issues for this Full Bench to determine with regards to the Live Performance Award.

2.24 Mannequins and Models Award 2010

[541] A summary of proposed variations in Group 4 awards was published by the Commission on 24 March 2016. No submissions were received about the Mannequins and Models Award 2010 286 (Mannequins Award).

[542] An exposure draft based on the Mannequins Award was published on 16 November 2016 along with a comparison document. Interested parties were invited to make submissions in response to the exposure draft by 22 February 2017. 287 No submissions were received.

[543] A number of questions were posed by the Commission as part of the exposure draft. These questions were captured in a summary of submissions document published on 20 November 2017.

[544] In the interest of standardising measurements across modern awards we intend to vary clause 16.2(k) of the exposure draft as follows:

(k) Billboards/posters—when the photograph(s) taken are used for large billboards or posters (minimum size 6 meters by 3 meters 20 feet by 10 feet), an additional payment of $207.70 will be paid to each model involved.

[545] In the table in clause 16.2(b) of the exposure draft the cell for Evening showing will be updated as follows:

Introducing standard rate column

[546] As part of the exposure draft, the Commission asked interested parties to comment on whether the table in Schedule A1in the exposure draft should be expanded to include the rates in clauses 16.2(a)–(f) by reference to the standard rate to provide transparency when adjusting them following an Annual Wage Review.

[547] In the absence of any comment from interested parties we will not vary the rates table as suggested. If, in the future, interested parties find that it would be beneficial to see these rates these tables can be drafted.

[548] As no submissions were received from interested parties in relation to the Mannequins Award, we will provide a further opportunity to respond to our provisional views and any other outstanding matters. Submissions are due by 19 April 2018, see the Next steps below.

2.25 Pest Control Industry Award 2010

[549] On 3 November 2016, the Commission published an exposure draft based on the Pest Control Industry Award 2010 288 (Pest Control Award) together with a comparison document showing the changes made to the structure and language in the award.

[550] Interested parties were provided with an opportunity to file written submissions and submissions in reply to the drafting and technical issues in the exposure draft. The Commission received submissions from the AWU and AFEI.

[551] On 19 July 2017, a revised exposure draft was published by the Commission. Summaries of submissions were published by the Commission on 8 March 2017, 19 April 2017, 15 May 2017 and 17 May 2017 setting out the technical and drafting issues for the Pest Control Award. A revised summary of submissions was published on 20 November 2017.

[552] A Final Report was published on 27 July 2017 setting out the matters dealt with at conferences held on 29 March 2017 289 and 26 April 2017.290 A number of issues were resolved at the conferences. We are satisfied that it is appropriate to make the changes agreed to by the parties in relation to items 1, 3 and 7, as outlined in the Final Report.

[553] There remain a number of unresolved issues that require determination by this Full Bench.

Item 2 – Meal allowance – country work

[554] Item 2 relates to the provision of a meal allowance for a worker who is sent to do country work by their employer. The Commission invited parties to consider clause 17.3(c)(iv) of the exposure draft and clarify whether the $8.54 allowance for each meal is payable where an employee is travelling to or between country work locations and how it interacts with the allowance in clause 17.3(c)(ii) of $90.44 per night for lodging and all meals.

[555] The relevant excerpts from clauses 17.3(a) and (c) of the exposure draft are set out below:

‘17.3 Expense-related allowances

(a) Meal allowance

(i) The employer will either supply a meal or pay a meal allowance of $13.81 for the first and subsequent meals to an employee where the employee is required to work overtime for more than two hours without being notified on the previous day or earlier that they will be required to work.

(ii) If notice has been provided and the employee is not required to work overtime or is required to work less than the amount advised, the employer will pay the employee the meal allowance in clause 17.3(a)(i) for each meal the employee has provided themselves.

…

(c) Country work

(i) Country work means employment at a place which requires the employee to live away from their usual place of residence.

(ii) An employee sent to country work will be paid an allowance of $90.44 per night to cover the costs of lodging and all meals or provided with board and lodging as agreed between the employer and employee.

(iii) Time occupied in travelling to and from country work will be paid for at ordinary rates in addition to wages otherwise earned, provided that an employee will not be paid for more than eight hours occupied in travelling on any one day. A day for the purposes of clause 17.3(c) means from midnight on one day to midnight on the next day.

(iv) An employee sent from one place to another as prescribed in clause 17.3(c) will be paid a meal allowance of $8.54 for each meal. This allowance will not be payable if the employee is otherwise entitled to a meal allowance pursuant to clause 17.3(a).

(v) Where transport is not provided by the employer, all employees will be entitled to travel to and from country work on terms agreed between the employer and the employee.’

[556] The AWU submitted that the allowance provided for in clause 17.3(c)(iv) may be payable in addition to the allowance in clause 17.3(c)(ii), unless the employee is entitled to an allowance pursuant to clause 17.3(a). In conference the AWU submitted that the allowance under clause 17.3(c)(iv) constitutes ‘extra compensation’ 291 to that provided for in clause 17.3(c)(ii), and the allowance under 17.3(c)(iv) would not be an allowance paid in isolation. The AWU noted that this additional allowance under clause 17.3(c)(ii) would not be payable where an employee was required to travel from their work in the country to return their place of residence.292

[557] In response, AFEI submitted that an employee would only be entitled to the allowance under clause 17.3(c)(iv) under the exposure draft where that employee is not entitled to an allowance under clauses 17.3(c)(ii) or 17.3(a). 293 At the conference, AFEI submitted that clause 17.3(c)(iv) could operate where employees are required to spend a period greater than 24 hours in the country for work (that is, where there is an extended travel time there and back), entitling them to the clause 17.3(c)(ii) allowance (covered by the 24 hour period) as well as a meal allowance whilst undertaking the additional hours.294 The AWU rejected AFEI’s interpretation, submitting that those employees would be excluded from the clause 17.3(c)(iv) allowance and would be entitled to the allowance under clause 17.3(a).295 

[558] We disagree with the AWU and AFEI’s respective interpretations with respect to the operation of clause 17.3(c)(iv). The AWU’s interpretation would enable employees to receive double compensation for the same meal under clauses 17.3(c)(ii) and 17.3(c)(iv). AFEI’s interpretation that clause 17.3(c)(ii) applies for a 24-hour period appears to have no basis in the context of the current Pest Control Award and there has been no evidence presented in support of the position.

[559] Our provisional view is that clause 17.3(c)(iv), in its current form and location, has no practical application. Therefore, we suggest deleting clause 17.3(c)(iv) from the exposure draft.

[560] If parties disagree with our provisional view, and are able to demonstrate a scenario where an employee performing country work may be entitled to the meal allowance in clause 17.3(c)(iv), we will refer the matter to a separately constituted Full Bench for determination. Submissions on this point are due by 19 April 2018 as per the Next steps below.

Item 4 – Shiftwork

[561] Item 4 relates to the definition of ‘shiftwork’ in clause 21 of the exposure draft. The clause defines afternoon and night shift and prescribes the allowance for such shiftwork. The definition of shiftwork was initially raised by the FWO in correspondence of 2 March 2015. 296

[562] The FWO submitted that without the term ‘shiftworker’ being more clearly defined, it may be unclear what entitlements apply to an employee working from 9.00 am to 7.00 pm. Specifically, whether the employee should receive overtime pay as a dayworker or afternoon shift rates as a shiftworker. 297 This question was put to the parties in the exposure draft.

[563] The AWU responded to the FWO’s query in a submission by considering the ongoing engagement of the employee on afternoon or night shift, that is, they are employed as a shiftworker. 298 If the employee is a day worker, and works outside the ordinary hours set out under the Award, then overtime is paid on those hours.299

[564] The AWU proposed the addition of a further definition of ‘shiftworker’ at clause 21.1(a) of the exposure draft as follows and the subsequent clauses be renumbered accordingly:

‘(a) A shiftworker is an employee who works ordinary hours during any shift finishing after 6.00 pm and at or before 8.00 am. A shiftworker will be entitled to payment of penalty rates in accordance with this clause.’ 300

[565] In response to the FWO’s query, AFEI noted that shift work penalties apply to shift work, which may extend beyond the day work span of hours, and is compensated by overtime as contemplated in clause 22.1(a) of the current award. 301

[566] The current modern award provision, clause 23, is worded in a similar way to the exposure draft. We agree that a change is necessary to ensure that an employee working, for example, from 9.00 am to 7.00 pm has certainty as to whether they are classified as a day worker or an afternoon shiftworker. This classification is necessary to ensure that work performed past 6.00 pm is captured and paid at the appropriate rate for both employment streams; that is by either receiving overtime as a day worker or afternoon shift rates as a shiftworker.

[567] The AWU has not provided any reason why the inclusion of clause 21.1(a), as proposed, would assist employees in making that determination. In our view, the proposed clause does not clarify the entitlement for afternoon and night shiftwork as opposed to day work.

[568] We propose the following variation to the exposure draft:

21.1 Definitions

(a) Afternoon shift means any shift finishing after 6.00 pm and at or before midnight or where the majority of time worked is between the hours of 6.00 pm and midnight.

[569] Our proposed variation would address the FWO’s example such that an employee working from 9.00 am to 7.00 pm could not be classified as an afternoon shiftworker and would be entitled to overtime payment for working in excess of, or outside the span of, ordinary hours of work. Aside from providing certainty for employers, the proposed formulation would also ensure consistency with the drafting of clause 21.1(b) of the exposure draft. Comments in relation to the proposed variation are to be made in accordance with the Next steps below.

Item 5 – Annual leave – Payment and loading

[570] Item 5 related to annual leave loading under clause 22.3 of the exposure draft. Parties were asked to provide clarification to three questions posed by the Commission.

•  What is the ‘industry allowance’ referred to in clause 22.3(b)?

[571] The AWU submitted that as there is no definition of ‘industry allowance’ in the Pest Control Award or in any of the pre-modern instruments; therefore its inclusion at clause 22.3(b) of the exposure draft was made erroneously. 302

[572] The AWU further submitted that the term ‘industry allowance’ in clause 22.3(b) of the exposure draft should be replaced with the words ‘leading hand’ as follows: 303

‘(b) an additional loading of 17.5% of the employee’s minimum hourly rate prescribed in clause 6—Minimum wages, plus industry leading hand and first aid allowances where appropriate or, if they were a shiftworker prior to entering leave, their shift penalty, whichever is greater.’

[573] The AWU submitted that its proposed amendment is necessary to reflect the historical position that the leading hand allowance is payable to an employee on annual leave. 304 The AWU noted that all the pre-modern instruments relevant to the pest control industry, except for the Pest Control Industry (Northern Territory) Award 2002,305 provide for the payment of a leading hand allowance and stipulate that the leading hand allowance is payable to an employee on annual leave.306

[574] AFEI opposed the AWU’s proposal to change the reference from ‘industry allowance’ to the ‘leading hand allowance’ in the exposure draft. 307 AFEI considered that such a variation would amount to a substantive change.308 AFEI emphasised that the purposes of industry allowance and leading hand allowance are different; an industry allowance is typically payable to all employees across an industry for all hours worked to compensate for the nature of work in the industry, whereas a leading hand allowance is payable only to those who are undertaking work as a leading hand.309

[575] Further, AFEI was of the view that AWU had not provided sufficient reason for any finding that the AIRC, during award modernisation, included a reference to the ‘industry allowance’ as an error and that the reference was intended to be to the ‘leading hand allowance’. 310 AFEI noted that the AWU relied on the previous NSW Pest Control Industry (State) Award311 which included a reference to the leading hand allowance in calculating annual leave loading. AFEI considered that the example is unpersuasive taking into account that the current award did not adopt that wording and actually references the first aid allowance whereas the New South Wales award did not.312

[576] AFEI agreed that the award does not otherwise make any reference to an industry allowance. 313 AFEI submitted that it appears the phrase ‘industry allowance’ was erroneously included in the annual leave loading clause.314 AFEI therefore submitted that the reference to ‘industry allowance’ in the exposure draft should be removed, and that it should not be replaced with a different allowance.315

[577] We agree with the submissions that, apart from clause 22.3(b), the Pest Control Award does not make any reference to an ‘industry allowance’. In the absence of a definition, the term creates ambiguity and currently has no practical application. As such, our provisional view is to remove the reference to an ‘industry allowance’ from clause 22.3(b) in the exposure draft as follows:

(b) an additional loading of 17.5% of the employee’s minimum hourly rate prescribed in clause 6—Minimum wages, plus industry and the first aid allowances where appropriate or, if they were a shiftworker prior to entering leave, their shift penalty, whichever is greater.

[578] Parties are invited to provide feedback on our provisional view. Interested parties who oppose our provisional view may make submissions as to whether they intend to pursue a substantive variation to the exposure draft to insert a definition of ‘industry allowance’ or substitute it with ‘leading hand allowance’ or any other allowance. Submissions are due by 19 April 2018 see the Next steps below.

•  Are shiftworkers entitled to first aid allowance (where applicable) while on annual leave?

[579] The parties have not made submissions addressing this question. Our preliminary view is that shiftworkers will have the same entitlement as non-shiftworkers under clause 22.3(b). However, no change will be made to the exposure draft.

•  How is the loading under clause 22.3(b) calculated?

[580] While we accept the parties’ submissions as to the interpretation of the clause 22.3(b) in the exposure draft, we do note our provisional view to remove the reference to ‘industry allowance’. Consequently, the appropriate interpretation is: 17.5% of the employee’s minimum hourly rate + the first aid allowance.

Item 6 – National Training Wage

[581] Item 6 was considered as part of a common issue and was resolved by the deletion of Schedule D. 316

[582] There are no other outstanding matters to determine for the Pest Control Award.

2.26 Plumbing and Fire Sprinklers Award 2010

[583] On 26 May 2016 the Commission published an initial exposure draft based on the Plumbing and Fire Sprinklers Award 2010 317 (Plumbing Award) together with a comparison document. A revised exposure draft was published on 5 January 2017.

[584] Submissions were received from a number of interested parties including:

•  AWU;

•  Ai Group;

•  Master Plumbers Group (MPG); and

•  National Fire Industry Authority (NFIA).

[585] Deputy President Gostencnik conducted a conference on 17 August 2017. 318 A draft report was issued for comment from interested parties on 11 October 2017. A final report to the Full Bench was published on 8 November 2017. An updated summary of technical and drafting matters was republished on 23 November 2017.

[586] A number of technical and drafting matters were resolved by agreement between the interested parties and we will adopt those agreed changes in the exposure draft. We note that item 16 is an agreed change to the payment of wages clause. Whilst we will adopt the agreed position of the interested parties, we acknowledge that the ongoing Payment of wages common issue may result in further amendments to that same clause. 319

[587] There remain two technical and drafting matters for this Full Bench to determine.

Technical and drafting matters

Item 7 – Part-time employment

[588] The AWU submitted that clause 11.3(b) of the exposure draft should include finishing times as well as commencement times. 320 The AWU submitted that section 147 of the Act requires the amendment. Section 147 provides:

‘147 Ordinary hours of work

A modern award must include terms specifying, or providing for the determination of, the ordinary hours of work for each classification of employee covered by the award and each type of employment permitted by the award.

Note: An employee’s ordinary hours of work are significant in determining the employee’s entitlements under the National Employment Standards.’

[589] The current drafting of clause 11.3 of the exposure draft is as follows:

‘11.3 Before commencing a period of part-time employment the employee and the employer will agree in writing:

(a) that the employee may work part-time;

(b) upon the hours to be worked by the employee, the days upon which they will be worked and commencing times for the work;

(c) upon the classification applying to the work to be performed; and

(d) upon the period of part-time employment.’

(emphasis added)

[590] The equivalent clause in the current modern award, clause 13.3, is drafted in the same way.

[591] MPG 321 and NFIA322 do not oppose the AWU’s submission.

[592] Ai Group 323 and the Master Plumbers and Mechanical Contractors Association of NSW324 oppose the AWU’s submission. It was submitted that because a part-time employment arrangement must specify commencement times, days of work and the total number of hours to be worked, the finishing times can be determined based on that information.

[593] We do not agree that finishing times can be assumed or inferred based on the other criteria set out in clause 11.3(b). For example, “a part-time employee and employer might agree that the employee would be engaged for 20 hours a week, starting at 7 am. From that one couldn’t calculate a finishing time.” 325

[594] In the example provided, if the employee agreed to complete those 20 hours during Monday to Wednesday each week, the options for finishing times each day could be estimated based on an average number of hours each day but that may not be the spread of hours adopted. The Plumbing Award does not prescribe minimum or maximum hours per day for part-time employees. As such, the spread of hours across the agreed number of days could vary and may change week to week.

[595] Our provisional view is that the variation proposed by the AWU should be made in order to provide part-time employees with more certainty about their pattern of work. The variation to clause 11.3(b) would be as follows:

(b) upon the hours to be worked by the employee, the days upon which they will be worked and commencing and finishing times for the work;

[596] Submissions in response to this provisional view are due by 19 April 2018, see the Next steps below.

Item 12 – Adult apprentices

[597] As part of the exposure draft, the Commission asked whether clause 13.14(d)(ii) is a permitted term. Clause 13.14(d) is phrased as follows:

‘(d) Employment as an adult apprentice

(i) Where possible, employment as an adult apprentice should be given to an applicant who is currently employed by the employer so as to provide for genuine career path development.

(ii) Adult apprentices will not be employed at the expense of other apprentices.’

(emphasis added)

[598] The equivalent clause in the current modern award, clause 16.4, is drafted in the same way.

[599] Interested parties commented that the clause may be permitted but it is unhelpful because it provides no guidance about what “where possible” means.

[600] Our provisional view is that clause 13.14(d)(ii) should be deleted because it has no work to do. Submissions in response to this provisional view are due by 19 April 2018, see the Next steps below.

Substantive matters

[601] The majority of the substantive matters pertaining to the Plumbing Award were referred to a separate Full Bench to determine. 326 Item S23, a proposed shiftwork clause, is an additional outstanding substantive matter that will require consideration by a separate Full Bench.

[602] There are no other outstanding matters for this Full Bench to determine in relation to the Plumbing Award.

2.27 Professional Employees Award 2010

[603] On November 2016 the Commission published an initial exposure draft based on the Professional Employees Award 2010³²⁷ (Professional Employees Award) together with a comparison document showing the changes made to the structure and language in the award. Interested parties were provided with an opportunity to file written submissions and submissions in reply on the drafting and technical issues in the exposure draft. Submissions and submissions in reply were received from the following parties:

•  APESMA;

•  Ai Group;

•  ABI;

•  AFEI; and

•  Business SA.

[604] A draft report was published on 3 May 2017 setting out the matters dealt with at a conference held on 7 April 2017. An updated draft report was published on 21 June 2017. The draft report of 21 June 2017 called for further comments about the contents of the report before it was finalised.

[605] A revised exposure draft, along with a summary of submissions, was published on 15 May 2017. A further revised exposure draft was published on 17 July 2017.

[606] Updated summaries of submissions were published for the technical and drafting matters and the substantive issues on 20 November 2017.

[607] Following a conference and further submissions, the following items were resolved by agreement between the parties: 10, 16, 21, 22, 28, 31-35. A final Report to the Full Bench was published on 4 September 2017.

[608] Based on previous decisions issued by other Full Benches as part of Review, we are not satisfied that it is appropriate to make all the changes agreed to by the parties with regard to items 17, 18, 22, 26, 29, 30 and 31-35. We will consider each item in turn below.

Items 17 and 18 – Facilitative provisions

[609] Ai Group raised concerns about clause 7.2 of the exposure draft because the following clauses were listed as facilitative provisions:

•  clause 17.5 – Annual leave in advance; and

•  clause 17.6 – Cashing out of annual leave.

[610] Clauses 17.5 and 17.6 were included in the exposure draft following a decision of the Annual Leave Full Bench 328 to include clauses relating to the taking of annual leave in advance and the cashing out of annual leave in modern awards.

[611] Ai Group proposed the removal of the references to clauses 17.5 and 17.6 on the basis they were not facilitative provision in the sense contemplated by clause 7.1.³²⁹

[612] The list of facilitative provisions has been raised in a number of awards and will be dealt with below at [756].

Item 22 – Ordinary hours of work

[613] The Professional Employees Award and Exposure Draft allow an employee, by agreement with their employer, to average their ordinary hours of work over a regular cycle which may include shorter or longer hours.³³⁰ In the exposure draft published on 3 November 2016, the Commission asked parties to confirm the maximum number of weeks in a cycle that the 38 ordinary hours per week may be averaged.

[614] Initially, APESMA³³¹ and AFEI³³² submitted that any proposal to specify a maximum number of weeks over which 38 hours may be averaged would be a substantive change. ABI³³³ and Ai Group³³⁴ opposed the introduction of any maximum number of weeks over which ordinary hours were averaged. APESMA proposed the following clause to address the Commission’s concerns:³³⁵

‘For the purposes of this sub-clause 13.2, a cycle cannot be longer than 12 months.’

[615] Following the final conference, the interested parties³³⁶ confirmed that they agreed to APESMA’s proposal that a cycle cannot be longer than 12 months.³³⁷

[616] The Commission wrote to interested parties on 8 September 2017 to seek clarification about whether an average cycle was appropriate given the lack of overtime provisions. 338 In response, Ai Group submitted that the Professional Employees Award and its predecessors never contained overtime and TOIL provisions because employees typically receive an annual salary.339

[617] We agree with the initial submissions of APESMA and AFEI that the introduction of a maximum number of weeks would constitute a substantive change.

[618] We are also concerned that the proposed averaging of ordinary hours of work over a 12 month period is not a reasonable period of time over which to average ordinary hours, and would raise practical issues with the reconciliation of the ordinary hours and any overtime worked including in situations where employment is terminated prior to a 12 month period.

[619] Along with any overtime entitlement that might be introduced, there would need to be consideration of the rate at which overtime hours would be paid, for example, at the ordinary rate of pay or a loaded rate. There would also need to be consideration given to whether time off may be granted instead of payment for overtime.

[620] The averaging of the ordinary hours of work clause has brought to our attention the issues of reconciling the average ordinary hours work over a cycle and the payment of overtime entitlements for hours worked in addition to ordinary hours. We note that under the Professional Employees Award, while there is provision that employees will be compensated for time worked regularly in excess of ordinary hours, there is no method of calculation of these ‘additional hours in relation to remuneration, time off in lieu or penalty rates.

[621] This matter will be referred to a separately constituted Full Bench for further consideration and determination.

Item 26 – Schedule of casual rates of pay

[622] The parties agreed to the insertion of a Schedule of the rates of pay for casual employees. After the final conference, Ai Group proposed that a footnote be added to the Schedule highlighting that the rates of pay include the casual loading set out in clause 11.1(b).³⁴⁰

[623] We agree that Schedule B should be clarified to demonstrate that it includes the casual loading. Our provisional view is that the table be amended in the following manner, which is consistent with approach taken in other awards.

[624] Submissions in response to this provisional view are due by 19 April 2018, see the Next steps below.

Items 29 and 30 – Annual leave

[625] The Commission asked parties to comment on how clause 17.2(a) of the exposure draft operates given annual leave accrues progressively rather than falling on a given date.

[626] Clause 17.2 of the exposure draft states:

‘17.2 An employee must be paid a loading calculated at the rate of 17.5% of their base rate of pay, provided that:

(a) The entitlement must not exceed the ABS average weekly earnings for all males (Australia) for the September quarter of the year preceding in which the date of the accrual of the annual leave falls; and

(b) Where an employee receives remuneration from their employer which is related to their annual leave loading and which is established as being of equivalent value to or greater value than the loading provided by this clause, no further entitlement will accrue. Where the benefit is of a lesser value than equivalent value then the employer must make up the benefit to that value.’

[627] APESMA and Business SA agreed that the practical application of the clause concerns when annual leave is taken and the loading cap which would apply at that time.³⁴¹

[628] Ai Group submitted that the intent is that the clause applied to the average weekly earnings for the preceding September quarter of the year preceding the year in which the date of the accrual of the annual leave falls.³⁴²

[629] Despite having differing interpretations of clause 17.2, the interested parties did not propose to vary clause 17.2.³⁴³ Ai Group proposed the following amendment to clause 17.2 so that it was consistent with the current Award:

‘The entitlement must not exceed the ABS average weekly earnings for all males (Australia) for the September quarter of the year preceding the year in which the date of the accrual of the annual leave falls’

[630] The Ai Group proposal appears to contradict APESMA and Business SA’s interpretation of clause 17.2(a) that the loading is calculated based on the preceding year from when annual leave is taken rather than accrued.

[631] The Commission wrote to interested parties to confirm their views on how annual leave loading is accrued and paid. 344 Ai Group submitted that the calculation refers to the year prior to accrual.345 ABI346 and AFEI347 support Ai Group’s submission.

[632] APESMA submitted that because annual leave accrues progressively, not on an anniversary date, the wording could be updated to read: 348

‘The entitlement must not exceed the ABS average weekly earnings for all males (Australia) for the September quarter of the year preceding the year of the anniversary date in which the full annual leave entitlement has accrued’

[633] In our view, the existing annual leave loading provision is unnecessarily complicated. It places an administrative burden on award users to locate the relevant ABS data based on the year of accrual. We consider that the clause could be re-drafted in plain English to clarify how annual leave loading is calculated in practice.

[634] Our provisional view is that the award should specify a monetary amount and be updated annually according to the ABS figure. This issue will be referred to the Plain Language Full Bench for further consideration and re-drafting.

[635] Interested parties may consider raising further amendments to the annual leave provisions as a substantive matter if they are concerned with the ongoing application of the clause as per the Next steps below.

Items 31–35 – Annual close down

[636] Parties raised concerns that the Annual close down clause in the Exposure Draft had substantively changed the effect in the Professional Employees Award.

[637] Parties agreed to replace the clause concerning Annual close-down with the following:³⁴⁹

‘(a) An employer may close down a section or more of the enterprise for the purpose of allowing annual leave to all or the majority of employees in the section or sections.

(b) The same conditions which apply to the other employees of the enterprise (or sections) may also apply to employees covered by this award, provided that the employer must give at least four weeks’ notice to the employees of the requirement to take annual leave.’

[638] The proposed Annual close-down clause includes a new requirement that the employer must give at least four weeks’ notice of the requirement to take annual leave.

[639] A statement was issued referring consideration of shutdown provisions in a number of modern awards to the Full Bench presiding over the plain language re-drafting process. 350

[640] The Professional Employees Award is included in that list of awards. On that basis, we will not make any changes to the existing provisions at this time. Interested parties are encouraged to participate in the plain language re-drafting process as it applies to the shutdown provisions.

[641] We are satisfied that it is appropriate to make the other agreed changes outlined in the Report to the Full Bench of 4 September 2017.

[642] We invite parties to make submissions about any further substantive issues that are to be pursued.

2.28 Racing Clubs Events Award 2010

[643] On 18 November 2016 the Commission published an initial exposure draft based on the Racing Clubs Events Award 2010 351 (Racing Clubs Award) along with a comparison document.

[644] Submissions in response to the exposure draft were received from interested parties including: AFEI; ABI; and the AWU.

[645] Following a number of conferences, final summaries of technical and drafting submissions and substantive issues were published in April and March respectively.

[646] The parties resolved the technical and drafting matters and the exposure draft will be varied to include those agreed changes, with one exception, as set out below.

Item 11 – Casual hourly rates of pay

[647] The interested parties agreed to vary clause 11.5 to clarify casual minimum hourly rates and minimum payments per shift. They also agreed to make consequential amendments to clauses 12.4 and 12.5.

[648] While we agree that it is appropriate to make the consequential amendments in clauses 12.4 and 12.5, we do not agree that amending the column heading is the appropriate place to insert the cross reference. Therefore, the words ‘in accordance with clause 11.5’ will be added to the first sentence in each of the clauses as a pre-amble to the rates tables.

[649] A Report to the Full Bench was published on 24 April 2017 (April report). There are no other outstanding technical and drafting matters. There is an outstanding substantive matter that requires further consideration.

Item S1 – Casual employment ‘relevant minimum wage’

[650] The FWO wrote to the Commission to seek clarification about the appropriate rate to be paid to casual employees for overtime.

[651] The April Report noted that Item S1 remained unresolved. A separate Full Bench has been constituted to determine the matter, as per [762] below.

[652] There are no outstanding matters for this Full Bench to determine with regards to the Racing Clubs Award.

2.29 Registered and Licensed Clubs Award 2010

[653] The Registered and Licensed Clubs Award 2010 352 (Clubs Award) was recently considered as part of the Penalty Rates case.353 The Penalty Rates Decision suggested two options for further review of the Clubs Award as follows:354

‘Option 1: determinations could be made revoking the Clubs Award and varying the coverage of the Hospitality Award 355 so that it covers the class of employers and employees presently covered by the Clubs Award. Such a course would obviously avoid the need for any further Review proceedings in respect of the Clubs Award.

Option 2: CAI and any other interested party could be provided with a further opportunity to advance a properly based merit case in support of any changes they propose in respect of weekend penalty rates.’

[654] Option 1 is currently being pursued by Clubs Australia Industrial (CAI) and will be considered by a separate Full Bench. 356

[655] Given that proceedings for AM2017/39 are only in the initial stages, it seems appropriate to defer consideration of the Clubs Award until after the Full Bench determines the coverage issue.

2.30 Social, Community, Home Care and Disability Services Industry Award 2010

[656] On 13 May 2016, the Commission published an initial exposure draft based on the Social, Community, Home Care and Disability Services Industry Award 2010 (SCHCDSI Award). A comparison document was published concurrently with the exposure draft.

[657] Submissions relating to technical and drafting issues were received from:

•  HSU;

•  Ai Group;

•  United Voice;

•  Australian Municipal, Administrative, Clerical and Services Union;

•  Aged Care Employers; 357

•  Business SA;

•  Jobs Australia;

•  ABI;

•  AWU;

•  AFEI; and

•  National Disability Services (NDS).

[658] A summary of submissions relating to technical and drafting issues was published on 30 November 2016; these were discussed in the Groups 4A, 4B and 4C Awards Full Bench hearing of 6 December 2016, and at subsequent conferences before Commissioner Lee on 16 December 2016. An updated summary of submissions was published on 6 January 2017 and a further conference was conducted by Commissioner Lee on 6 February 2017.

[659] Subsequently, a further matter was transferred from the substantial matters submission summary to the technical and drafting issues proceedings. The NDS submitted that the language of the SCHCDSI Award is often complex to interpret and not conducive to structuring patterns of work meaning that, in some cases, flexibility may exist but is not being well utilised. We note that the SCHCDSI Award may soon be considered for inclusion in the plain language process, and accordingly, a wholesale review of the language of the award would be better dealt with in those proceedings.

[660] On 17 March 2017, Commissioner Lee issued a Report reflecting the position of the parties following the conference. Changes agreed to by the parties will generally be adopted, with the exception of any agreed position that contradicts a previous Full Bench decision or an established drafting principle.

[661] A revised exposure draft was published on 13 July 2017 and a revised summary of submissions relating to technical and drafting issues was published on 22 November 2017.

Items 1 and 2 – Definitions

[662] Although the parties have agreed that the appropriate location for sector definitions is the definitions clause, rather than the coverage clause (see Items 1, 3 and 7 of the summary of submissions and the Report), we do not propose to make this change, as it conflicts with the 6 July 2017 decision. 358 The various sector definitions will remain in the coverage clause, and references to the full definitions will be included in the definitions section.

[663] The placement of the definition of ‘sleepover’ was also a matter of contention between the parties (Items 1 and 2 of the summary of submissions and Report). The Report indicates that the parties agreed to include the definition in both the definitions section and the sleepover clause; however, in the interest of consistency, the definition should only appear in the award once. We have decided that the definition will remain in the sleepover clause, and, in keeping with the approach adopted in relation to definitions, a reference to that definition will be included in the definitions section.

Item 4 – Minimum hourly rate

[664] Item 4 of the summary of submissions and Report concerned whether to include a definition of ‘minimum hourly rate’. This term replaced references to terms such as ‘appropriate rate’ and ‘ordinary rate of pay’ in the SCHCDSI Award, in accordance with the December 2014 Decision 359, which provided that where an award does not contain any allowances or loadings payable for all purposes, the term ‘minimum weekly/hourly rate’ would be used throughout.360

[665] During the conference process, the parties agreed that inserting a definition of the phrase ‘minimum hourly rate’ would resolve their concerns.

[666] The December 2014 decision provides that Awards containing allowances or loadings payable for all purposes will include definitions of ‘all purposes’ and ‘ordinary hourly rate’ but did not provide for a definition of ‘minimum hourly rate’. We therefore consider that a definition of ‘minimum hourly rate’ is not required to be included in the SCHCDSI Award, and decline to make such variation.

[667] We note that there are a number of other references to ‘ordinary rate’ and ‘appropriate rate’ that remain in the exposure draft. In light of the December 2014 decision, our provisional view is that such references should all be changed to ‘minimum rate’ or ‘minimum hourly rate’, whichever is more appropriate. Parties are to advise the Commission if they disagree with our provisional view, see the Next steps below. The clauses affected are as follows: clause 11.3, clause 13.6(c), clause 14.1(c), clause 18.1(b)(iii), clause 18.4 and clause 20.3(a).

Item 8 – The National Employment Standards and this award

[668] Item 8 of the Report concerns the wording of clause 3.3 of the exposure draft, which relates to making copies of the award and the NES available. The following wording for the relevant clause was determined in the December 2014 decision:

‘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.’ 361

[669] Accordingly, the above wording will be included in the SCHCDSI Award.

Item 30 – Rostering arrangements—excursions

[670] The Commission asked interested parties whether an employee is only entitled to the allowance in clause 13.7(e) of the exposure draft, or also to the other provisions in clause 14.5; we note that the reference to clause 14.5 relates to previous numbering and should in fact be a reference to clause 13.7. The parties were unable to agree to an answer to the question, but through the conference process it was agreed that the parties’ concerns with the excursions provisions are beyond the scope of the technical and drafting matters being determined in these proceedings. 362

[671] Should the parties wish to pursue these matters further, they can do so in the SCHCDSI Award substantive matter proceedings.

[672] In the process of reviewing these provisions, we have noticed that the numbering of the excursions clause in the exposure draft requires alteration. Clause 13.9(a) will become introductory text for clause 13.9, clause 13.9(b) will be renumbered as clause 13.9(a) and clause 13.9(c) will be renumbered as clause 13.9(b).

Plain language matters

[673] The March 2017 SCHCDSI Award Report indicates that there is an expectation that the issue identified at Item 31 in the summary of submissions would be clarified in other 4 Yearly Review proceedings.

[674] We note that item 10.5 in the Plain language drafting of modern awards guidelines is directly relevant to this issue and therefore the matter is more appropriately dealt with as part of the Plain Language Drafting process.

[675] Item 32 of the summary of submissions concerns minimum wages provisions. The parties have agreed to insert the words ‘(full-time employees)’ below the words ‘minimum weekly rate’ in the second column of each of the tables in clauses 15.1–15.3 of the exposure draft.

[676] However, this matter is also being dealt with as part of the plain language drafting process, so we will leave this issue to be determined by the relevant Full Bench as part of that process.

Item 32 – Minimum wages

[677] Another matter raised as part of Item 32 was the wording of the Notes at the beginning of clauses 15.1 and 15.3 of the exposure draft. The parties agreed that these issues could be resolved by inserting the words ‘this may require an additional payment in accordance with the terms of the relevant Equal Remuneration Order.’ immediately after the words ‘this modern award’ at the end of NOTE 2 in clause 15.1.

[678] The parties agreed that their concerns relating to the note in clause 15.3 would be resolved by inserting the words ‘This may require an additional payment in accordance with the terms of the Transitional Pay Equity Order.’ Immediately after the words ‘in items 30A(6) and (7)’ in the Note.

[679] At this stage, we are unable to confirm to which employment streams the Transitional Pay Equity Order is relevant. Accordingly, we suggest that this matter be determined by the substantive matters Full Bench.

Item 49 – Quantum of leave

[680] The parties agreed to change the title of clause 20.2 of the exposure draft from ‘Quantum of leave’ to ‘Definition of shiftworker for the NES’.

[681] We are of the view that this is more than a technical or drafting matter, and therefore if the parties wish to pursue such change, they are to advise the Commission and it can be dealt with by the substantive matters Full Bench.

Item 50 – Adjustment of expense-related allowances

[682] We note that the first entry in the column titled Applicable Consumer Price Index figure in clause G.2.1(b) has erroneously been changed to ‘Weighted average eight capital cities—CPI’ in the latest version of the exposure draft. This will be reverted back to ‘All groups’ which is consistent with the agreed position in Item 50 of the Report.

Outstanding substantive matters

[683] An updated summary of substantive submissions will be published following the issuing of this decision. Interested parties will have an opportunity to provide any comment about the preliminary views in this decision, as well as the other outstanding substantive matters. Interested parties can confirm their respective positions about each of the items in accordance with the Next steps below.

[684] Once the outstanding substantive matters are confirmed, they will be referred to a separate Full Bench to consider and determine. 363

2.31 Supported Employment Services Award 2010

[685] An exposure draft based on the Supported Employment Services Award 2010 364 (Support Employment Award) was published on 17 May 2016. Submissions in response to the exposure draft were received from:

•  ABI; 365

•  HSU; 366

•  AWU; 367 and

•  NDS. 368

[686] A summary of submissions was published on 30 November 2016. At the hearing the HSU, Ai Group and AFEI entered appearances. Following the hearing on 6 December 2016 a conference was held before Ross J on 15 December 2016.

[687] Following the conference, a Statement was issued on 20 December 2016, 369 together with a revised summary of submissions and a revised exposure draft incorporating the following changes:

[688] The Statement deferred consideration of items 7 to 9 which are substantive issues, item 15 until after the decision in AM2016/8—Payment of wages and item 21 to give the parties the opportunity to make further submissions. Parties were given until 31 January 2017 to make further submissions in relation to the revised exposure draft.

[689] Updated summaries of the technical and drafting matters and the substantive issues were republished on 23 November 2017.

[690] The remaining 10 technical and drafting issues are the subject of this decision. The first matter is a submission from ABI which was made in relation to a number of exposure drafts and seeks to remove the words “as varied” from clause 1.2. This wording was inserted into all exposure drafts following the decision in Groups 1A and 1B 379 which determined that awards would be varied rather than superseded. ABI relied on the submissions made during the Group 3 award stage380 that these words may cause confusion as a reader of an award may misconstrue the commencement clause as meaning that the award as varied has retrospective application to 1 January 2010.

Items 2 and 3 – Casual ordinary hourly rate

[691] Items 2 and 3 of the revised summary relate to the definition of ‘casual ordinary hourly rate’. The HSU made a submission that the definition should be deleted as it is not used in the award, however, at the conference it was noted that the term appears in Schedule B.2. 381 Accordingly, we do not propose to address that submission further.

Item 4 – Ordinary hourly rate

[692] Item 4 is a submission from the HSU proposing that the definition of ordinary hourly rate should reference an employee’s grade as opposed to the ‘employee’s classification’ as follows:

‘ordinary hourly rate means the hourly rate for the employee’s grade specified in clause 15.2, plus any allowances specified as being included in the employee’s ordinary hourly rate or payable for all purposes’.

[693] As discussed at the conference and set out in the revised summary of submissions, we do not propose to vary the exposure draft in the manner proposed by the HSU.

Item 5 – National Employment Standards

[694] Item 5 of the revised summary is a submission from the HSU relating to clause 3.3—National Employment Standards and this award. The HSU submitted that the words “whichever makes them more accessible” should be reinstated. As foreshadowed at the conference, 382 this issue has already been the subject of a Full Bench decision383 and we do not see any reason for departing from this decision. Accordingly, the exposure draft will not be amended.

Item 10 – Title and Commencement

[695] Item 10 is a submission from ABI relating to the new clause 5 ‘effect of variations made by the Commission’. ABI submitted that this clause is more appropriately located as a sub-clause of the ‘Title and Commencement’ clause after sub-clause 1.2, rather than as a standalone clause. As noted at the conference, this change has been made to ensure consistency with the plain language structure of modern awards, accordingly, no change will be made to the exposure draft.

[696] The Full Bench considering the Group 3 awards issued an in-principle decision about the standard title and commencement clause; we do not propose to deviate from the decision. 384

Item 11 – Casual employment

[697] Item 11 is a submission from the AWU in relation to the casual employment clause. The AWU submitted that there is a conflict between clause 11.1 that states casual employees are ‘engaged on an hourly basis’ and clause 11.6 which provides a minimum engagement period of 3 hours for casual employees. The AWU proposed the following wording to replace clause 11.1:

‘An employee who does not meet the definition of a part-time employee, and who is not a full-time employee, will be employed as a casual employee, and will work a maximum of 38 ordinary hours per week.’

[698] In their reply submission dated 22 July 2016, 385 ABI opposed this change on the basis that it seeks to impose a new definition of ‘casual employee’. ABI did not believe that there is any conflict between 11.1 and 11.6.

[699] It appears that the interested parties expected this matter was going to be addressed by the Full Bench considering casual and part time employment. 386Given that it was not addressed by that Full Bench it may be timely for the interested parties to re-consider their positions and advise the Commission whether a substantive variation will be pursued.

[700] Interested parties are invited to make any further submissions about item 11 by 19 April 2018 as per the Next Steps below.

Item 13 – Classifications

[701] Item 13 is a submission from the HSU to move clause 12.1 to clause 15. As set out in the revised summary of submissions, we do not intend to make this variation to the exposure draft.

Item 20 – Allowances

[702] Item 20 is a submission from ABI opposing a new provision relating to allowances, as discussed at the conference, this matter has already been dealt with and we do not intend to make any variation to the exposure draft. 387

Item 21 – Employees with disabilities

[703] Parties were asked to consider whether the amount of $6.00 per week is still appropriate. 388 Interested parties indicated that they would give this matter further consideration.

[704] In light of the amendments being made to the Supported Wage System Tool (SWS) tool by the separate Full Bench this matter will also be referred to that Full Bench for further consideration.

Item 24 – Casual employees

[705] Item 24 is a submission from the AWU proposing to delete the work “casual” from row 3 of Table B.2.2 and row 2 of B.2.3 in Schedule B. As set out in the revised summary of submissions, we do not intend to make this variation to the exposure draft.

[706] The other substantive issues about this award, including the wage assessment tools, are being dealt with by a separate Full Bench.

[707] There are no other outstanding items for this Full Bench to determine with regards to the Support Employment Award.

2.32 Surveying Award 2010

[708] An exposure draft based on the Surveying Award 2010 389 (Surveying Award) was published on 13 May 2016. Submissions in response to the exposure draft were received from the AMWU390 and APESMA.391

[709] A summary of submissions was published on 30 November 2016. The AMWU and the Australian Federation of Employers and Industry (AFEI) appeared at the hearing on 6 December 2016. The summary of submissions included 11 separate matters raised by the parties. An updated summary of submissions for the technical and drafting matters was published on 20 November 2017. A revised exposure draft was published on 5 January 2017.

[710] Items 1–4 and item 9 on the summary of submissions were matters raised by the AMWU. The remaining matters were raised by APESMA.

Item 1 – Definition of Professional surveyor

[711] Item 1 relates to clause 4.2 of the exposure draft. The AMWU submitted that the clause was included in error as it also appears in the definitions section. The submission was supported by AFEI. 392

[712] The location and duplication of definitions in exposure drafts was considered as part of the Group 3 6 July 2017 decision. 393 On that basis, the definition of ‘Professional surveyor’ will remain in the coverage clause and be cited in the definitions clause.

Item 2 – Facilitation by individual agreement

[713] Item 2 in the summary concerns clause 7.2(a) which contains a table of facilitative provisions in the award which may be subject of individual agreement. The AMWU submitted that a reference to clause 18.5(b) should be added to the table in clause 7.2(a) and further, that the reference to clause 15.1 should be moved to the table in clause 7.3(a) (facilitative provisions requiring majority agreement). AFEI did not oppose this submission.

[714] We agree with the submission of the AMWU, the wording in each provision clearly indicates where the award requires individual or majority agreement. The exposure draft will be amended accordingly.

Item 2A – Facilitation by majority agreement

[715] In item 2A, the Commission posed a question about whether the cross reference in clause 7.3(a) to clause 7.3(b) is correct. The interested parties agreed that that the clause reference is still relevant and should not be varied. As such, we will not vary clause 7.3 of the exposure draft.

Item 3 – Casual employment

[716] Item 3 relates to clause 11—Casual employment. The AMWU submitted that the exposure draft should be amended to remove the list of provisions which do not apply to casual employees (annual leave, personal/carer’s leave, bereavement leave and public holidays). The AMWU submitted that this would be consistent with the decision in relation to exposure drafts in Group 1A and 1B awards 394 (the Group 1A and 1B decision). AFEI opposed this submission on the basis that it does not agree that the Commission has expressed an intention to remove a list of award provisions that do not apply to casual employees from exposure drafts.

[717] We agree with AFEI, the Group 1A and 1B decision dealt with a new clause and an accompanying note that were inserted into all exposure drafts by the Commission to assist with the identification of provisions that did not apply to casual employees. This caused significant controversy and the Full Bench determined that the new clause and the note would not be included. The intention of the Group 1A and 1B decision was not to remove existing provisions in awards.

[718] The AMWU made a further submission in relation to this matter on 15 December 2016. 395 The AMWU submitted that existing list of which matters are compensated for by the 25% casual loading is inconsistent with the previous decisions that established the loading. It submitted that during the award modernisation process in 2008, a Full Bench of the AIRC confirmed the standard casual loading for modern awards as 25%, adopting the reasoning in the Metal, Engineering and Associated Industries Award 1998 casual case.396 As noted by the AMWU, the Full Bench in the 1998 casuals case determined that not all components for calculating a fair loading can be specified with precision or individually valued,397 however, the Full Bench went on to say that the possible exception to this was paid leave.

[719] The Full Bench considering the Group 3 awards issued a decision about a similar issue in the Market and Social Research Award 2010 398 (Market and Social Research Award). The Full Bench determined the following:

‘(i) Clause 6.5(c)(ii)–Casual loading

[95] Clause 6.5(c)(ii) of the exposure draft refers to the casual loading being paid instead of various “entitlements” of full-time or part-time employment. Ai Group submit that this is an oversimplification of the purpose of the casual loading and that the word “attributes”, which appears in the current award is more appropriate. We agree. The exposure draft will be revised to read:

‘The casual loading is paid instead of annual leave, personal/carer’s leave, notice of termination, redundancy benefits and the other entitlements attributes of full-time or part-time employment.’ 399

[720] Whilst the matters raised in the Market and Social Research Award are not identical to those raised in the Surveying Award, we acknowledge that the Group 3 Full Bench opted to maintain the wording of the current clause.

[721] At a conference on 25 July 2017, it was noted that the variation sought by the AMWU would not make any substantive variation to entitlements but AFEI was provided with a further opportunity to respond. 400

[722] AFEI subsequently wrote to the Commission and recommended the following re-drafting of clause 11.2 of the Surveying Award exposure draft: 401

‘11.2 For each ordinary hour worked, a casual employee will be paid the minimum hourly rate for the work performed. In addition, a casual employee will receive a 25% loading instead of annual leave, paid personal/carer’s leave, bereavement paid compassionate leave and payment for absence on public holidays.’

[723] AFEI has not provided any reasons why re-drafting the clause in the way sought by the AMWU would substantively vary entitlements. Conversely, in our view, AFEI’s alternate proposal goes beyond a technical and drafting amendment. We accept the AMWU’s submission and will amend the Surveying Award exposure draft as follows:

11.2 For each ordinary hour worked, a casual employee will be paid the minimum hourly rate for the work performed. In addition, a casual employee will receive a 25% loading. instead of annual leave, personal/carer’s leave, bereavement leave and public holidays.

Item 4 – Professional development

[724] Item 4 is a minor drafting issue. The AMWU submitted that the first comma in clause 12.2 of the exposure draft should be removed. This submission is supported by AFEI. We will vary the exposure draft accordingly.

Item 5 – Ordinary hours of work

[725] At the hearing, the AMWU indicated that item 5 on the summary of submissions relating to clause 14—Ordinary hours of work may be a substantive issue. 402 This matter was raised by APESMA in response to a question posed by the Commission in the exposure draft seeking clarification of the period over which the 38 ordinary hours per week are averaged. APESMA submitted that there were averaging provisions in NAPSAs but that their provisions were not consistent. APESMA submitted that in the absence of clarity the default position should be that the ordinary hours should not exceed 38 per week. AFEI opposed APESMA’s submission. AFEI submitted that the Surveying Award currently allows for the averaging of weekly hours and that removing this provision would be a substantive change.

[726] We agree with the AMWU and AFEI, the change proposed by APESMA would be a substantive change and will be referred to a separately constituted Full Bench for determination. Further information will be provided in the Next steps section below.

Item 6 – Breaks

[727] Item 6 was raised in response to a question from the Commission in the exposure draft in relation to clause 16—Breaks. APESMA submitted that clauses 16.2(a) and 16.2(b) should be read together to understand the context of the provisions. A break “without ceasing work” can then be interpreted by reference to established custom and practice as allowing an employee to “enjoy a beverage whilst remaining in the immediate work environment”. 403 This submission was not opposed by AFEI who were in agreement that it is not necessary to amend the exposure draft.

[728] Accordingly, we do not propose to amend the exposure draft in relation to clause 16.

Item 7 – Overtime and penalty rates

[729] In item 7, parties were asked whether the wording in clause 20.1, “in excess of normal hours” should be amended to read “in excess of or outside the spread of ordinary hours” to make it clear that overtime is also payable when worked outside the spread of hours. APESMA’s submission in support of the suggested amendment is item 7 in the summary of submissions. AFEI did not oppose APESMA’s submission.

[730] Accordingly, and consistent with our approach in the Architects Award above, we will amend the exposure draft in the manner proposed by the Commission as follows:

20.1 An employer must pay an employee for all authorised time worked in excess of or outside the spread of ordinary hours of duty at the rate of 150% of the minimum hourly rate for the first three hours and 200% of the minimum hourly rate thereafter.

Item 8 – Time off instead of payment for overtime and Sundays and Public Holidays

[731] Item 8 in the summary deals with clauses 20.2 and 20.3—Time off instead of payment for overtime. AFEI submitted that this matter is no longer relevant because the Commission’s model time off instead of payment for overtime has been inserted into the modern award. 404 We agree that clause 20.2 should be replaced by the model term and the exposure draft will be amended to include the model term. Clause 20.3 however, does not form part of the model term and the reference to ‘working on a Sunday’ will be retained.

Item 9 – Sundays and Public Holidays

[732] Item 9 is the final submission of the AMWU and also relates to clause 20.3(c) of the exposure draft. This clause replicates 23.9 of the current Surveying Award. The AMWU submitted that this provision should be moved out of clause 20.3 to a new clause 20.7 entitled “Returning home when normal means of transport is not available”. AFEI did not oppose the AMWU’s submission.

[733] We agree with the AMWU and the exposure draft will be amended accordingly.

Items 10 and 10A – Public holidays

[734] Items 10 and 10A were questions posed to the parties about whether the words “is deemed to be work in excess or outside of ordinary hours of duty and” in clause 24.2 are necessary. If those words are deleted, the clause would simply refer back to clause 13, and the payment would be made as either a penalty or overtime as required. APESMA submitted that the words assist in the clarification of the entitlement and the avoidance of ambiguity. AFEI and the AMWU 405 agree with the submission of APESMA.

[735] Accordingly, we will not vary the exposure draft.

Item 11 – School-based Apprentices

[736] Item 11 deals with a question from the Commission in relation to Schedule E—School based apprentices. The Surveying Award does not contain any apprentice provisions and interested parties were asked whether the schedule is required. APESMA and AFEI submit that the schedule is unnecessary and support its deletion.

[737] We agree; Schedule E will be deleted from the exposure draft.

[738] There are no other outstanding issues for this Full Bench to determine with regards to the Surveying Award.

2.33 Travelling Shows Award 2010

[739] On the 16 November 2016 the Commission published an initial exposure draft based on the Travelling Shows Award 2010 406 (Travelling Shows Award) together with a comparison document showing the changes made to the structure and language in the award.

[740] Interested parties were provided with an opportunity to file written submissions and submissions in reply about the initial exposure draft. Submissions were received from the Showmen’s Guild of Australasia (SGA) and AFEI.

[741] Deputy President Gostencnik provided a Final Report to the Full Bench on 24 April 2017 setting out which matters remain unresolved. 407 Updated summary of substantive matters and summary of technical and drafting matters were also published in April 2017.

[742] Updated summaries of submissions were published for the technical and drafting matters and the substantive issues on 20 November 2017. There are no outstanding technical and drafting matters, however a number of substantive submissions require determination.

[743] Items S2, S3 and S4 are about clause 22 of the exposure draft; penalty rates for Sundays and public holidays for casuals. The Commission posed a question to interested parties about whether clause 22.1 could be deleted now that the nominal expiry date of the clause has lapsed and whether clause 22.2 now applies to all employees, including casuals.

[744] The Commission’s research area has undertaken research which is set out in Attachment C. The background information has been compiled to demonstrate the history of the clause and the approach taken by other Full Benches considering transitional provisions in modern awards.

[745] The research paper sets out three options for the Full Bench and interested parties to consider. Option 1 is to combine clause 22.1 and clause 22.2. Option 2 is to develop a new casual employment clause. Option 3 is to delete clause 22.1 entirely.

[746] Our provisional view is that Option 1 should be adopted. As per the Next steps below, interested parties will have until 19 April 2018 to respond to the provisional view having regard to that background research. Once any comments have been received, we will consider whether the exposure draft can be finalised or whether a separate Full Bench will need to review the variation as a substantive matter.

2.34 Water Industry Award 2010

[747] On 3 November 2016 the Commission published an initial exposure draft based on the Water Industry Award 2010 408 (Water Award) together with a comparison document showing the changes made to the structure and language in the award. Interested parties were provided with an opportunity to file written submissions and submissions in reply on the drafting and technical issues in the exposure draft. Submissions were received from the following parties:

•  UV;

•  Ai Group;

•  AMWU;

•  AWU; and

•  ASU

[748] A draft report was published on 19 April 2017 setting out the matters dealt with at a conference held on 30 March 2017. A number of issues raised were resolved at this conference. An updated draft report was published on 9 May 2017. Revised exposure drafts along with a summary of submissions document were published on 15 May 2017 and 30 May 2017. A further revised exposure draft was published on 20 July 2017. The draft report of 9 May 2017 called for further comments about the contents of the draft report.

[749] Ai Group wrote to the Commission on behalf of the above mentioned parties. 409 The correspondence set out the position reached on each of the outstanding issues and requested that the conference on 30 May 2017 be cancelled because the parties had reached an impasse on the outstanding matters.

[750] With reference to the summary of submissions document published on 15 May 2017, and republished on 20 November 2017, Ai Group’s correspondence explained that:

•  Items 4 and 5 could not be resolved through discussions between the parties

•  Items 10 and 11 were agreed between the parties

[751] We are satisfied that it is appropriate to make the changes agreed to by the parties, as outlined in the Final Report to the Full Bench of 27 July 2017 and Ai Group’s correspondence of 26 May 2017.

[752] It remains for the Full Bench to determine the outstanding items 4 and 5 which pertain to the list of facilitative provisions in clause 7.2 of the exposure draft. This is considered in more detail at [756] below.

[753] If interested parties wish to pursue the outstanding substantive variations noted in the summary of submissions published on 8 March 2017, the matters will be referred to a separately constituted Full Bench. Parties are directed to advise the Commission about whether these matters are being pursued by 19 April 2018 as per the Next steps below.

[754] A revised exposure draft reflecting the agreed position of the parties’ will be published shortly and interested parties will be provided with a final opportunity to comment, see the Next Steps below.

3. Other matters

[755] There were a number of matters that arose in multiple awards and will be more efficiently dealt with simultaneously.

3.1 Facilitative provisions

[756] The list of facilitative provisions appearing in each modern award should, as far as possible, list a number of model provisions. This was established in a previous Full Bench decision. 410 There are some award-specific provisions that may be included as additional facilitative provisions, however, all modern awards that contain the following provisions should list them in the facilitative provisions clause:

•  Time off instead of payment for overtime;

•  Annual leave in advance;

•  Cashing out of annual leave; and

•  Public holidays – substitution.

[757] Ai Group made largely identical submissions about the facilitative provisions in the Book Industry Award, the Food Manufacturing Award, the Professional Employees Award and the Water Award.

[758] Effectively, in each of these awards, Ai Group submitted that references to Annual leave in advance and Cashing out of annual leave should be removed from the table of facilitative provisions. 411 Ai Group submits that these provisions are not facilitative in the sense contemplated by the awards.

[759] Consistent with the previous Full Bench decision on this point, we disagree with Ai Group’s submission and decline to remove these provisions from the facilitative provisions list in any of these modern awards.

3.2 Annual leave loading

[760] The FWO identified an ambiguity in the phrasing of annual leave loading provisions in a number of modern awards including the Food Manufacturing Award and the Car Parking Award.

[761] The existing provisions give rise to inconsistent calculations of annual leave loading depending on whether the clause is interpreted as applying on each day or across the entire period of leave.

[762] As discussed in the Group 3 Decision, 412 this matter will be referred to the Plain language re-drafting process to develop a consistent approach.413

3.3 Overtime for casuals

[763] A separate Full Bench has been constituted to deal with matters pertaining to overtime for casual employees. 414 The Commission has identified a number of awards where it is unclear whether casuals are entitled to overtime at all, and if so, when and at what rate.

[764] The outstanding items about overtime for casuals in the Group 4 awards will be considered by the dedicated Full Bench.

4. Next steps

[765] There are a number of outstanding matters and provisional views set out throughout this decision. As discussed, interested parties are being provided a further opportunity to comment on these matters and clarify any drafting proposals.

[766] All submissions are to be forwarded to amod@fwc.gov.au by 4.00 pm on 19 April 2018.

[767] The outstanding technical and drafting matters will be finalised in a subsequent decision once the deadline for comment has lapsed. Any party seeking an oral hearing in respect of any issue should provide such a request by 19 April 2018.

PRESIDENT

Appearances:

E Arrabalde, an individual

M Adler, Housing Industry Association

J Arndt, Australian Business Industrial and NSW Business Chamber

D Astley, Australian Manufacturing Workers’ Union

R Baonza, Civil Contractors Federation

K Barlow, Community and Public Sector Union

R Bhatt, Ai Group

S Bull, United Voice

S Burnley, Shop, Distributive and Allied Employees Association

M Butler, Association of Professional Engineers, Scientists and Managers, Australia

H Carayannis, Clubs Australia Industrial

M Chesher, Media Entertainment and Arts Alliance

R Clancy, Australian Chamber of Commerce and Industry

T Clarke, Australian Council of Trade Unions

DJW Clifford, Funeral Directors Association (NSW and QLD)

P Coffey, CEPU – Plumbing Division

D Colley, Australian Education Union

P Cooper, Club Managers Association

S Crawford, Australian Workers’ Union

A Crowley, Media Entertainment and Arts Alliance

P Eberhard, Master Plumbers and Mechanical Services Association of Australia

T Evans, Australian Hotels Association

B Ferguson, Ai Group

S Forster, Australian Federation of Employers and Industry

J Fox, Shop, Distributive and Allied Employees Association

M Galbray, Shop, Distributive and Allied Employees Association

L Gavin, National Aboriginal and Torres Strait Islander Health Worker Association

S Gheller, Association of Professional Engineers, Scientists and Managers, Australia

J Gherjestani, Australian Workers’ Union

J Gunn, Community Corrections Solutions Australia

D Hamilton, Australian Federation of Employers and Industry

K Jack, Australian Federation of Employers and Industry

G Jervis, National Electrical and Communications Association

A Jones-Valador, Australian Federation of Employers and Industry

S Jones, News Corp and others

S Kenna, National Tertiary Education Industry Union

J Knight, Australian Services Union

K Knopp, Association of Independent Schools

R Krajewski, Fire Protection Association Australia

R Liebhaber, Health Services Union

G Liggins, Aged and Community Services Australia and Leading Aged Services Australia

S Maxwell, Construction, Forestry, Mining and Energy Union – Construction and General Division

J Minchinton, Australian Hotels Association and others

JE Murdoch, Cinema Industry Employers

N Niven, Australian Institute of Marine and Power Engineers

G Noble, Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia

M Nguyen, Australian Manufacturing Workers’ Union

A Odgers, Independent Education Union

J O’Dwyer, Master Electricians Australia

G Parkes, Accommodation Association of Australia and Restaurant and Catering Australia

R Paina, Shop, Distributive and Allied Employees Association

V Paul, Ai Group

M Pegg, Jobs Australia

S Pole, United Voice

C Pugsley, Australian Higher Education Industrial Association

M Rizzo, Australian Services Union

N Ruskin, Association of Australian Medical Research Institutes

R Sostarko, Master Builders Australia

K Srdanovic, Qantas Group

D Strait, Master Grocers Australia

L Svendsen, Health Services Union

R Tait, Clubs Australian Industrial

P Thompson Australian Federation of Employers and Industry

K Thomson, Australian Business Industrial and NSW Business Chamber

N Tindley, Australian Retailers Association

W Townsend, Community and Public Sector Union

E Van Der Linden, South Australian Chamber of Commerce and Industry t/a Business SA

O Valaire, Master Plumbers Association of NSW

K Westwood, Cinema Industry Employers

C Young, Master Electricians Australia

A Zadel, Australian Federation of Employers and Industry

Hearing details:

Group 3 and 4 awards

18 November 2014

Melbourne

Group 3 and 4 awards

14 December 2015

Melbourne

Group 4 Awards

24 August 2016

Sydney

Final written submissions:

Australian Business Industrial and NSW Business Chamber, 1 December 2017

Australian Federation of Air Pilots, 4 December 2017

Australian Federation of Employers and Industries, 20 September 2017

Australian Industry Group, 20 November 2017

Association of Professional Engineers, Scientists and Managers, Australia, 20 September 2017

Australian Workers' Union, 8 September 2017

Business SA, 24 October 2017

CEPU - Plumbing Division, 25 October 2017

Cinema Industry Employers, 27 November 2017

Fire Protection Association Australia, 17 October 2017

Live Performance Australia, 2 November 2017

Media, Entertainment and Arts Alliance, 29 January 2018

National Fire Industry Association, 25 October 2017

News Limited and others, 22 February 2017

Qantas Group, 4 December 2017

Textile, Clothing and Footwear Union of Australia, 20 September 2017

United Voice, 4 December 2017

Printed by authority of the Commonwealth Government Printer

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Attachment A

List of Group 4 awards