[2018] FWCFB 5602

The attached document replaces the document previously issued with the above code on 12 September 2018.

Clause references in Attachment B for the Manufacturing Award exposure draft are replaced with clauses 13.2(d); 13.3(c) and 13.5(a)

Associate to JUSTICE ROSS

Dated 11 October 2018

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

4 yearly review of modern awards—Award stage—Group 1
(AM2014/64 and others)

4 yearly review of modern awards – award stage – exposure drafts – technical and drafting issues – Group 1 – outstanding issues.

CONTENTS

1. Introduction

[1] Section 156 of the Fair Work Act 2009 (the 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 a number of outstanding technical and drafting issues arising out of Group 1 of the award stage. The 30 awards allocated to Group 1 are listed at Attachment A to this decision. The Group 1 awards are divided into five subgroups (1A, 1B, 1C, 1D and 1E).

[2] This decision should be read in conjunction with the decisions issued 9 June 2017 (the June 2017 decision) 1 and the 28 June 2018 (the June 2018 decision),2 which also deal with Group 1 awards. It should also be read in conjunction with earlier decisions relating to the Review including a decision published on 23 December 2014 (the December 2014 decision)3 which dealt with the technical and drafting issues in the Group 1A and 1B awards and a decision issued on 23 October 2015 (the October 2015 decision)4 which dealt with issues in Group 1C, 1D and 1E awards.

[3] There are also two relevant decisions concerning the Review: the 13 July 2015 (July 2015 decision) 5 and 30 September 2015 (September 2015 decision)6 in which the Commission dealt with a number of drafting and technical issues common to multiple exposure drafts including minimum and ordinary hourly rate of pay.

[4] The June 2018 decision provided interested parties a final opportunity to comment on a small number of outstanding technical and drafting issues relating to the Group 1 exposure drafts.

2. General issues

2.1 Additional week’s leave for seven day shiftworkers—alleged NES inconsistences

[5] In the June 2018 decision, we outlined an issue raised by the Australian Industry Group (Ai Group) in relation to the annual leave clauses in a number of awards. Ai Group made a submission that these clauses should be varied, as they provide conditions that have previously been found to be inconsistent with the National Employment Standards (NES) contained in s.87(2) of the Act. 7 The issue affects the following Group 1 awards:

•  Aluminium Industry Award 2010 (the Aluminium Award)

•  Asphalt Industry Award 2010 (the Asphalt Award)

•  Cement and Lime Award 2010 (the Cement and Lime Award) and the Quarrying Award 2010 (the Quarrying Award)

•  Cleaning Services Award 2010 (the Cleaning Award)

•  Premixed Concrete Award 2010 (the Premixed Concrete Award)

[6] We expressed a provisional view in relation to the Aluminium Award; that the drafting of the clause in the Exposure Draft and the current award allows for incremental accrual over a period of up to a fortnight which is inconsistent with s.87(2) of the Act.

[7] In relation to the Asphalt Award, we expressed a provisional view that as presently drafted the clause is inconsistent with s.87(2) of the Act as it contains a qualifying period before an employee is entitled to additional leave and the clause provides that the leave will accrue incrementally.

[8] In relation to the Cement and Lime and Quarrying Awards, the clause makes provision for accrual on a periodic basis rather than progressively and this appears to be inconsistent with the NES. We expressed a provisional view that the clause should therefore be deleted in accordance with our previous decisions, and that the clauses in the Cement and Lime and Quarrying Awards be varied to read as follows:

In addition to the leave provided for in Division 6 of the NES, shiftworkers who are rostered to work regularly on Sundays and public holidays will be allowed an additional one week’s leave.

[9] In relation to the Cleaning Award, we expressed a provisional view, similar to the Asphalt Award, that clause 29.2(b) in the Cleaning Award is inconsistent with s.87(2) of the Act as it contains a qualifying period before an employee is entitled to additional leave.

[10] We expressed a provisional view in relation to the Premixed Concrete Award, that clause 24.2 is inconsistent with s.87(2) of the Act as it contains a qualifying period before an employee is entitled to additional leave and the clause provides that the leave will accrue incrementally.

[11] Interested parties were provided an opportunity to comment on our provisional views. Submissions relating to this issue were received by Ai Group. No other party made any comment on our provisional views.

[12] In its submission of 16 July 2018, Ai Group agreed with the provisional views expressed in the June 2018 decision, and submits the relevant provisions should be removed from the awards and exposure drafts. 8

[13] We confirm our provisional views outlined at paragraphs [11]-[15] of the June 2018 decision. Determinations varying the current awards listed above will be issued shortly. The relevant Exposure Drafts will be updated accordingly.

2.2 Casual conversion clause

[14] In the June 2018 decision we noted that the issue of casual conversion is currently before the Casual Employment Full Bench (AM2014/197) and that a number of issues relating to the casual conversion clause have been raised by the parties in relation to specific awards in Group 1. The June 2018 decision noted that if the matter is not determined by the Casual Employment Full Bench parties have liberty to raise the issues prior to the conclusion of the Review.

[15] A submission was received from Ai Group on 16 July 2018 relating to this issue. 9 Ai Group submit that the issues identified in relation to the casual conversion clauses in the eight awards in Group 1 are very similar and in some cases the very same issue has been replicated across multiple awards. Ai Group referred to a submission they filed on 19 January 2018 concerning technical and drafting issues arising from casual conversion provisions contained in 17 exposure drafts.10 The 17 exposure drafts subject of that submission are:

•  Asphalt Award (Group 1)

•  Cement and Lime Award (Group 1)

•  Concrete Products Award (Group 1)

•  Cotton Ginning Award (Group 1)

•  Food, Beverage and Tobacco Manufacturing Award (Group 4)

•  Graphic Arts Award (Group 2)

•  Joinery Award (Group 4)

•  Manufacturing Award (Group 1)

•  Premixed Concrete Award (Group 1)

•  Quarrying Award (Group 1)

•  Road Transport and Distribution Award (Group 2)

•  Sugar Award (Group 3)

•  Textile Award (Group 1)

•  Timber Award (Group 1)

•  Transport (Cash in Transit) Award (Group 2)

•  Waste Management Award (Group 2)

•  Wine Award (Group 3)

[16] In their 19 January 2018 submission, Ai Group noted that the Commission had not dealt with submissions made by interested parties regarding the re-drafting of existing casual conversion provisions in exposure drafts in light of the casual employment common issue proceedings. 11

[17] The casual conversion clause was redrafted as part of the Award stage of the Review. The intention of the redrafting was to improve the readability of the clause but not to change the operation of the clause.

[18] The following awards in Group 1 contain a casual conversion clause:

•  Asphalt Award

•  Cement and Lime Award

•  Concrete Products Award

•  Cotton Ginning Award

•  Manufacturing Award

•  Premixed Concrete Award

•  Quarrying Award

•  Textile Award

•  Timber Industry Award

[19] A number of issues in relation to casual conversion were considered by the Casual and Part-time Employment Full Bench which has now published three separate decisions. 12 The decision issued on 5 July 2017 (the 2017 Casual and Part-time decision) considered a number of applications that sought to alter existing provisions in modern awards and to include casual conversion provisions in a number of awards that did not contain any such provision. The 2017 Casual and Part-time decision set out the history of the provision and how it came to be included in a number of awards.13 While the 2017 Casual and Part-time decision dealt with a number of claims to alter the existing provisions for casual conversion, it did not address the wording of the current provisions, nor did it consider the proposed wording contained in the exposure drafts.

[20] Some issues have been raised by the parties in relation to specific awards in Group 1 that may have broader application across the awards that currently contain the casual conversion clause. 14 We note that some parties may have held off making submissions about the redrafted clause pending the Casual and Part-time decision. Given that the issues identified with the casual conversion clause are not confined to the Group 1 awards, and in order to avoid any drafting inconsistencies, the drafting of the casual conversion clause will be referred to the Plain Language Full Bench for determination. Any submission that has already been filed in relation to this issue will be considered by the Plain Language Full Bench. A short statement will be issued summarising all submissions that have been received relating to this issue, and directions will be issued for the filing of further submissions for those parties who have not yet had the opportunity to comment.

3. Review of group 1 awards

3.1 Ambulance and Patient Transport Award 2010

[21] Following the June 2018 decision, there were two outstanding issues in relation to the Ambulance Award.

Item 8—Breaks—paid crib time

[22] In the June 2018 decision, we outlined an issue raised by United Voice (UV) in relation to clause 9 of the Exposure Draft dealing with breaks, in particular paid crib time.

[23] In the June 2018 decision we expressed a provisional view that there is no reason to distinguish between private and public sector employers in terms of the breaks to be provided to operational employees and, on that basis, it was our provisional view to amend the Exposure Draft in a manner proposed by UV.

[24] Interested parties were invited to comment on our provisional view.

[25] UV made a submission on 19 July 2018, supporting the provisional view.  15 No other party commented on this issue.

[26] We confirm our provisional view set out at paragraph [50] of the June 2018 decision. The Exposure Draft will be updated in the manner proposed by UV.

Item 12—Penalties and overtime—penalty rates

[27] In the June 2018 decision, we outlined an issue raised by UV in relation to clause 13.2 of the Exposure Draft that deals with penalties and overtime rates.

[28] UV submitted that the clause ‘represents a proposed cut by the Fair Work Commission in the penalty rates of workers’ and that casual employees are not excluded from the entitlement to overtime nor the operation of the overtime penalty rates clause in the current award. UV further submitted that ‘[c]asual employees in the ambulance and patient transport sector have always received both overtime and the casual loading’, and referred to the Fair Work Ombudsman Pay Guide to support its submission. 16

[29] We formed the view that UV had misinterpreted clause 13.2 of the Exposure Draft and that the intention of clause 13.2 was to clarify that penalty rates and overtime rates are not cumulative payments, employees receive either the penalty rate or the overtime rate, but not both. Clauses of a similar nature appear in other awards. The casual loading is not a ‘penalty rate’.

[30] To avoid confusion we decided to remove the clause from the Exposure Draft as it was not a provision which exists in the current award.

[31] We then went on to note that the issue of whether casual employees are entitled to receive overtime had been referred to the Full Bench in AM2017/51.

[32] In its submission of 19 July 2018, UV confirmed it supports the removal of clause 13.2 of the Exposure Draft. 17 This clause will be removed.

[33] However, UV went on to note a related issue which it submits would result in a significant disadvantage for casual employees which it considers should be addressed by this Full Bench. They submit the issue relates directly to a change that has been made during the process of re-drafting the award and should be addressed in these proceedings. 18 The issue identified relates to clause 6.5(c) of the Exposure Draft which states:

‘For each ordinary hour worked, a casual employee must be paid:

(i) the ordinary hourly rate; and

(ii) a loading of:

•  25% of the ordinary hourly rate for all work on weekdays;

•  75% of the ordinary hourly rate for all work on Saturdays and Sundays; and

•  100% of the ordinary hourly rate for all work on public holidays.

for the classification in which they are employed.’

[34] UV submits this clause is in contrast with clause 10.5(c) of the current award, which states:

‘(c) A casual employee will be paid an hourly rate calculated on the basis of 1/38th of the minimum weekly wage prescribed in clause 14—Minimum weekly wages for the relevant classification level, plus:

(i) 25% for all work on weekdays;

(ii) 75% for all work on Saturdays and Sundays; and

(iii) 100% for all work on public holidays.’

[35] UV submits the wording in clause 6.5(c) limits the payment of the casual loading to ‘ordinary’ hours of work which it considers is a substantive change from the current award and will result in significant detriment for casual employees under this award. UV submits that the casual loading payable under clause 10.5(c) of the current award is not limited to ordinary hours of work and that under clause 10.5(d) of the current award it is clearly stated that the casual loadings in clause 10.5(c) are paid instead of any weekend or public holiday penalty that would otherwise apply. UV proposes the casual loadings are not paid instead of overtime. 19

[36] Whilst UV acknowledges there are separate proceedings in AM2017/51 in respect of overtime for casuals, it submits this issue relates directly to a change that has been made during the process of re-drafting this award and proposes this Full Bench amend clause 6.5(c) to “for each hour worked, a casual employee must be paid…” 20

[37] We agree with UV. This is an inadvertent drafting error and represents a substantial change to the award. We propose to delete the word ordinary. The redrafted clause 6.5(c) of the Exposure Draft will read:

‘For each ordinary hour worked, a casual employee must be paid:

(i) the ordinary hourly rate; and

(ii) a loading of:

•  25% of the ordinary hourly rate for all work on weekdays;

•  75% of the ordinary hourly rate for all work on Saturdays and Sundays; and

•  100% of the ordinary hourly rate for all work on public holidays.

for the classification in which they are employed.’

[38] We note that this decision is subject to the outcome of the Full Bench in AM2017/51.

3.2 Cement and Lime Award 2010 and Quarrying Award 2010

[39] Following the June 2018 decision, there was one issue relating to the amalgamation of the Cement and Lime and Quarrying Awards that remained outstanding.

Revocation of Quarrying Award—Title and commencement clause

[40] In the June 2018 decision, we identified that either the Cement and Lime Award or the Quarrying Award needed to be revoked following the amalgamation of the two awards. We were of the view that the amalgamation would best be achieved by varying one of the existing awards and revoking the other instrument. We proposed to vary the Cement and Lime Award, and revoke the Quarrying Award.

[41] Clause 1.3 of the amalgamated award would be varied to ensure that the clause does not restrict rights, privileges, obligations or liabilities arising from the Quarrying Award prior to its revocation. We proposed to insert the following wording in clause 1.3 of the Cement and Lime Award’s Exposure Draft to achieve that objective:

1.3 A variation to this award does not affect any right, privilege, obligation or liability that a person acquired, accrued or incurred under this award, the award as it existed prior to that variation. A variation to this award does not affect any right, privilege, obligation or liability that a person acquired, accrued or incurred under the Quarrying Award 2010 as it existed prior to its revocation.

[42] Parties were provided with the opportunity to comment on this proposed wording, and our course of action regarding the amalgamated award.

[43] The AWU made a submission on 16 July 2018. No other party made a submission. The AWU submit it does not oppose the proposed wording at paragraph [122] of the June 2018 decision. 21

[44] We confirm our proposed wording for clause 1.3 of the Exposure Draft and our proposed course of action regarding the amalgamated award. In accordance with the June 2018 decision, a short Statement will be issued outlining the final process for the amalgamation of these two awards.

3.3 Gas Industry Award 2010

Item 3 – Meal breaks

[45] In the June 2018 decision, we dealt with an issue raised by Ai Group in relation to meal breaks. Ai Group submitted that, consistent with the July 2015 decision, 22 the Exposure Draft should be amended so that the words ‘of the minimum hourly rate’ appear after each reference to a percentage appearing in clauses 9.1(b), 9.1(c) and 9.1(d).23 The proposed amendment would take the following form:

9.1 Meal breaks

(a) A meal break of at least 30 minutes must be allowed to employees within five hours of the start of their shift.

(b) Employees required to work for more than five hours without a meal break as provided for in clause 9.1(a) must, for all time worked in excess of the five hours before being allowed a meal break, be paid at 200% of the minimum hourly rate.

(c) Employees required to continue work during the meal break must be paid at 150% of the minimum hourly rate for all hours worked from the beginning of the scheduled meal break until the full meal break is given.

(d) Employees required to resume work during the meal break must be paid at 150% of the minimum hourly rate for all hours worked from resuming work until the full meal break is given.

[46] Business SA supported Ai Group’s submission.

[47] The AWU submitted that in the October 2015 decision 24 a similar issue arose in respect of the Manufacturing Award and the term ‘minimum hourly rate’ was replaced with ‘applicable hourly rate’. The AWU submitted that the term ‘applicable hourly rate’ also be used in the Gas Award, and stressed that if the term was not used there would be an incentive for employers to direct employees to continue or resume work during a meal break on Sundays and public holidays because they would be paid less.

[48] In the June 2018 decision, we agreed with the AWU that the effect of the term ‘minimum hourly rate’ would mean that an employee entitled to higher weekend or public holiday penalties would be entitled to a lesser amount under the circumstances contemplated by clause 9.1 of the Exposure Draft. We stated that the intention of the clause is to create a disincentive for employers to delay or interrupt employees’ meal breaks. In order to achieve this, the rates under clause 9.1 must be in excess of that which employees are otherwise entitled.

[49] Despite agreeing with the AWU, we expressed a provisional view that a definition of ‘applicable hourly rate’ would not be inserted into the Exposure Draft for the Gas Award as this may cause confusion and add an unnecessary level of complexity. We proposed to use the term ‘minimum hourly rate’ as suggested by Ai Group, and clarify this by adding the words ‘plus penalties and relevant loadings,’ as follows:

9.1 Meal breaks

(a) A meal break of at least 30 minutes must be allowed to employees within five hours of the start of their shift.

(b) Employees required to work for more than five hours without a meal break as provided for in clause 9.1(a) must, for all time worked in excess of the five hours before being allowed a meal break, be paid at 200% of the minimum hourly rate, plus penalties and relevant loadings.

(c) Employees required to continue work during the meal break must be paid at 150% of the minimum hourly rate, plus penalties and relevant loadings for all hours worked from the beginning of the scheduled meal break until the full meal break is given.

(d) Employees required to resume work during the meal break must be paid at 150% of the minimum hourly rate, plus penalties and relevant loadings for all hours worked from resuming work until the full meal break is given

[50] Interested parties were invited to comment on our provisional view.

[51] Submissions were received from the AWU, the AMWU, and Ai Group. No other party commented on the issue.

[52] Neither the AWU 25 nor the AMWU26 opposed the provisional view. Ai Group opposed the provisional view.27

[53] Ai Group submit the provisional view represents a substantive change to the award. Ai Group submit clauses 22.2 and 22.3 of the current award stipulate the rate that is to be paid to an employee who is not given a meal break after more than five hours of work or is required to continue or resume work during a meal break. Ai Group submit these clauses wholly regulate the amount that is payable in such circumstances. Clause 22 of the current award is set out as follows:

22. Meal breaks

22.1 A meal break of at least 30 minutes must be allowed to employees within five hours of the start of their shift.

22.2 Employees required to work for more than five hours without a suitable interval for a meal as provided for in clause 22.1 must, for all time worked in excess of the five hours before being allowed such interval, be paid at double time.

22.3 Employees required to continue or resume work during the meal break, must for the time of continuance or resumption until the full meal break is given, be paid at time and a half.

[54] Ai Group submits the proposed changes to clause 9.1 of the Exposure Draft would have the effect of requiring the payment of weekend penalties, public holiday penalties and shift loadings in addition to the penalty prescribed by clause 22 of the award for working during a meal break.

[55] Ai Group contends the changes proposed would lead to a substantial increase to employment costs, and provides an example of an employee who is required to work for more than five ordinary hours on a Sunday being entitled to 200% of their minimum hourly rate pursuant to clause 22.2 of the award. Under the provisional view, the employee would instead be entitled to 400% of the minimum hourly rate.

[56] Ai Group contends that the basis for the proposed amendments was only provided in the last two sentences of paragraph 181 of the June 2018 decision and submits the decision does not identify any basis for the findings that the intention of the relevant provisions is to create a disincentive for employers to delay or interrupt an employee’s meal break, or the rates payable in the relevant circumstances must be in excess of what employees are already entitled to. Ai Group further submits the intention of the clause “might equally be to simply provide employees in such circumstances with some compensation for working during a meal break”, 28 and that there is no evidence before the Commission that establishes the proposition that a further increase to the entitlement due to employees will create a disincentive for employers to delay or interrupt their meal breaks.29

[57] Ai Group identifies the following example of an employee working ordinary hours on a Saturday is to be paid 150% of the minimum hourly rate. If that employee is required to work for more than five hours without a meal break, clause 22.2 of the award entitles the employee to 200% of the minimum hourly rate. Under the Commission’s proposed changes, the employee would instead be entitled to 350% of the minimum hourly rate. 30

[58] Ai Group submits the proposition ‘an employee entitled to the higher weekend or public holiday penalties would be entitled to a lesser amount under the circumstances contemplated by clause 9.1 of the Exposure Draft’ should not be overstated, 31 and highlights it is likely to arise only in very limited circumstances such as:

a) Where an employee is working on a public holiday; and

b) Where the employee is working on a Sunday and clauses 9.1(c) or (d) apply.

[59] Ai Group submits that a consideration of the relevant factors listed at section 134(1) of the Act does not lend support to the proposed variations and that the changes proposed are not necessary to ensure that the award achieves the modern awards objective. Ai Group maintains its view that clause 9.1 of the Exposure Draft be amended by inserting the words “minimum hourly rate” after each percentage penalty rate prescribed by it.

[60] If its primary position is rejected, Ai Group submit that any variations made to clause 9.1 of the Exposure Draft should extend no further than to maintain an employee’s rate of pay where an employee is working on a weekend or public holiday and therefore entitled to a higher rate of pay for time worked on that day. That is, the higher rate of pay would be payable in the circumstances in clauses 9.1(b) – (d) in lieu of the penalty rate prescribed by those clauses.

[61] We accept that the provisional view represents a substantive change to the award. However, the objective of the current award term is to provide a disincentive for employers to delay or interrupt employee’s meal breaks. That objective is not met in circumstances where the rate paid when an employee is required to continue working during a meal break (or to interrupt a meal break) is not greater than that which would otherwise apply.

[62] This matter will be given further consideration by a separately constituted Full Bench.

3.4 Marine Tourism and Charter Vessels Award 2010

Item 1—Casual employees—casual overnight charter employees

[63] In the June 2018 decision, we formed a provisional view regarding casual overnight charter employees in the Marine Tourism and Charter Vessels Award 2010. This was the only outstanding issue specific to this award.

[64] The issue was raised by the AWU and outlined at paragraphs [191] – [200] of the June 2018 decision. In their submission filed in November 2015, the AWU submitted that the wording in the exposure draft appears to remove the casual overnight charter employee’s entitlement to receive their casual loading on overtime hours. 32

[65] Clause 10.3 of the current award is extracted below:

‘10.3 Casual employment

(a) An Overnight Charter Employee or Non-overnight Charter Employee may be engaged to work on a casual basis. A casual employee:

(i) is engaged to work a variety of hours if they are a Non-overnight Charter Employee or a specified trip or trips if they are an Overnight Charter Employee at the direction of the employer;

(ii) if they are an Overnight Charter Employee, must be engaged for a minimum of one half day trip as per clause 20.3, or if they are a Non-overnight Charter Employee must be engaged for a minimum of two hours per shift and a maximum of 12 hours per shift;

(iii) cannot be engaged for more than 38 hours per week if they are a Non-overnight Charter Employee; and

(iv) must be paid the applicable loading as defined in clause 13—Minimum wages.’

[66] Clause 6.4 of the Exposure Draft is extracted below:

‘6.4 Casual employees

(a) An Overnight Charter Employee or Non-overnight Charter Employee may be engaged to work on a casual basis.

(b) For the purposes of providing potential casual employees with the written notice as stipulated in clause 6.5, the employer must also specify the likely time periods or trips the employee will be required to work.

(c) A casual Overnight Charter Employee:

(i) is engaged to work a specified trip or trips, at the direction of the employer;

(ii) must be engaged for a minimum of one half day trip; and

(iii) for working ordinary hours must be paid the ordinary minimum daily rate calculated in accordance with clause 10.1 for the classification in which they are employed plus a loading of 25%.’

[67] In their submission, the AWU provided alternative wording to address the issue. They submitted that clause 6.4(c) of the Exposure Draft be redrafted to read: 33

‘(c) A casual Overnight Charter Employee

(i) is engaged to work a specified trip or trips, at the direction of the employer;

(ii) must be engaged for a minimum of one half day trip;

(iii) must be paid the minimum rate in clause 10.1 for the classification in which they are employed; and

(iv) must be paid a casual loading of 25%.’

[68] The June 2018 decision agreed with the AWU that the redrafting of the Exposure Draft had altered the meaning of the current award and expressed the provisional view that the AWU’s redrafted clause be incorporated into the exposure draft.

[69] Interested parties were provided an opportunity to comment on the provisional view. Submissions were received from the AWU and AFEI in relation to this issue.

[70] The AWU agrees with the provisional view of the Full Bench. 34

[71] In their submission, AFEI disagrees with the provisional view of the Full Bench. 35 AFEI notes that the provisional view of the Full Bench appears to be informed by the position advanced by the AWU that the Exposure Draft ‘has altered the meaning of the current award’.36 AFEI submit the exposure draft does not alter the meaning of the current award and the redrafted clause should not be incorporated into the Exposure Draft.37

[72] AFEI submits that there is no material difference between the text of clause 10.3(a) in the current award and the text at clause 6.4(c) of the Exposure Draft. AFEI states these clauses “correspond so closely that they are essentially the same” with no difference in obligations imposed on an employer. 38 They provide the following comparison of the clauses to support their submission:

First, a common characteristic is that the casual overnight charter employee is ‘engaged to work a specific trip or trips, at the direction of the employer’.

This is expressed in the current award at clause 10.3(a)(i); the corresponding condition appears in the Exposure Draft at clause 6.4(c)(i).

Second, a common characteristic is the obligation to engage the casual for ‘a minimum of one half day trip’.

This is expressed in the current award at clause 10.3(a)(ii); the corresponding condition appears in the Exposure Draft at clause 6.4(c)(ii).

Third, a common characteristic is that the employee is entitled to be paid a rate inclusive of a casual loading.

In the current award, this entitlement arises from the combined effect of clauses 10.3(a)(iv) and 13.1(c).3 The Exposure Draft provides the corresponding entitlement at clause 6.4(c)(iii).

Fourth, in both the current award and the Exposure Draft it is the ‘ordinary hours’ to which the casual loading entitlement applies.

In the case of the current award, clause 13.1(c) clearly identifies ‘ordinary hours of work’ as being the particular hours affected by the entitlement to the casual loading.

In the case of the Exposure Draft, the words ‘for working ordinary hours’ open clause 6.4(c)(iii) with the consequence that this clause can only be understood as concerned with an entitlement to the casual loading on ordinary hours.” 39

[73] AFEI notes that the AWU’s conclusion, which forms the basis of its proposed redraft, draws from an interpretation that clause 10.3(a)(iv) of the current award requires the casual loading to be paid for all hours worked. AEFI submit that this interpretation misconstrues the award and that the award “does not have the effect postulated in the AWU submission”. 40

[74] AFEI provide four primary reasons to support their submissions. First, that clause 10.3(a)(iv) “does not express any requirement that the casual loading be paid for all hours worked”. Second, that clause 13.1(c) of the current award provides the entitlement to a 25% loading for all work performed “within the ordinary hours of work”. Third, that clause 13.1(c) does not express entitlement to the inclusion of casual loading within overtime payments. Finally, that the interpretation of AWU is not supported by the relevant award provision dealing with overtime worked by overnight charter employees at clause 22.2, which states:

All time worked by Overnight Charter Employees in excess of:

•  12 hours per day;

•  20 days in a 28 day cycle, or

•  the average ordinary hours as per clause 20.3(a) ,

is overtime and must be paid at one and a half times the employee’s ordinary rate for the first two hours and double the ordinary rate thereafter calculated hourly.

[75] AFEI conclude that the Exposure Draft has no potential to ‘remove’ an entitlement to casual loading with overtime payments as no such entitlement or obligation exists.

[76] AFEI further submit that to amend the exposure draft and include casual loading with overtime calculation “would be a substantial change in industrial regulation of the industry” beyond the technical and drafting changes which are the subject of these proceedings.

[77] In light of AFEI’s submission we propose a conference to further discuss AFEI’s submissions and its implications for our provisional decision. If the matter is not resolved it may be dealt with as a substantive issue.

Items 2 and 3—Casual employees—casual non-overnight charter employees

[78] In our June 2018 decision we outlined an issue relating to casual non-overnight charter employees. We agreed with a submission of the AWU that both the exposure draft and the current award were unclear as to what casual non-overnight charter employees should be paid when working outside the span of hours. We also noted in the June 2018 decision the issue of overtime for casuals has been identified as an outstanding issue in respect of a number of modern awards and a Full Bench in AM2017/51 will consider issues relating to causal overtime relating from the award stage.

[79] We confirmed that a conference would be convened by Vice President Hatcher to explore ways of clarifying the provisions identified by the AWU in relation to this issue.

[80] In our June 2018 decision we commented that no other party had made a submission in relation to this issue, however, it appears a piece of correspondence sent by AFEI on 29 March 2018 (March correspondence) was inadvertently overlooked. 41 This correspondence expressed the position that the proposals by the AWU in relation to this item were substantive issues. The AWU noted in their submission that the basis of their proposal is to specifically retain the current award provisions and prevent a substantive change to current award entitlements. 42

[81] AEFI’s correspondence further noted that similar matters have been referred for consideration by a Full Bench in the overtime for casual common issue and foreshadowed its intention to make a submission about the proposal in that matter (AM2017/15).

[82] In correspondence dated 18 July 2018, AFEI reiterated the contents of their March correspondence and stated their subsequent understanding that:

•  The Group 1 technical and drafting Full Bench does not intend to deal further with the AWU’s proposal; and

•  The AWU and MUA proposals will be amongst the issues considered at a future time before the Full Bench in AM2017/51 (overtime for casuals); and

•  Directions will issue in the future for a timetable for the case management of AM2017/51, and which will provide an opportunity for interested parties to present their respective submissions. 43

[83] Vice President Hatcher will convene a conference to deal with this issue and the matter referred to at [77] above. A background paper summarising the issues will be published prior to the conference.

3.5 Poultry Processing Award 2010

Item 4—Ordinary hours—day workers

[84] In our June 2018 decision, we decided to amend clause 8.2(b) of the Exposure Draft for the Poultry Processing Award 2010 to include a reference to its consultative provisions. This decision was outlined at paragraphs [339] – [345] of the June 2018 decision.

[85] In submissions filed in November 2015, the AMWU raised the issue, submitting that the Exposure Draft should be amended to include a reference to the consultation clause in clause 8.2(b). In support of this submission, the AMWU directed the Commission’s attention to its submissions in AM2014/75 (concerning the Manufacturing Award). 44

[86] Clause 8.2(b) of the Exposure Draft provides the following:

‘(b) Ordinary hours of work are to be worked continuously, except for meal and rest breaks, at the discretion of the employer, between the hours of 5.00 am and 5.00 pm. The spread of hours (5.00 am to 5.00 pm) may be altered by up to one hour at either or both ends of the spread, by agreement between an employer and the majority of affected employees, or in appropriate circumstances, between the employer and an individual employee.’ 45

[87] The submission referred to by the AMWU (insofar as it relates to clause 8.2(b) of the Poultry Award Exposure Draft) sought the inclusion of a reference to the award’s consultation provisions in the clause that permits an employer to set rosters or hours of work. 46 The AMWU submitted that the October 2015 decision of the Full Bench (concerning exposure drafts in Groups 1C, 1D and 1E)47 ‘confirms that an employer’s right to change an employee’s regular roster or ordinary working hours is subject to consultation requirements.’48

[88] In relation to the Manufacturing Award, the AMWU proposed clause 13.2(d) of the Exposure Draft be amended such that the clause would read:

13.2(d) The ordinary hours of work are to be worked continuously, except for meal breaks, at the discretion of the employer, in accordance with clause 40.2, between 6.00 am and 6.00 pm…

[89] In their November 2015 submission, the AMWU suggested clause 8.2(b) of the Poultry Award Exposure Draft be amended to include a reference to clause 22.2 in the same form as recommended for the Manufacturing Award. 49

[90] Ai Group opposed the AMWU’s proposal to vary the Exposure Draft of the Poultry Award for the same reasons it opposed the AWMU’s proposal to vary the Manufacturing Award. 50 In that matter, the Ai Group opposed the change on grounds that the clause is not directed solely at the employer’s ability to change ordinary hours of work, although it permits this ‘by stating that ordinary hours are to be worked at the discretion of the employer’.51 Ai Group stated that as the clause has broader work to do, the insertion of a reference to the consultation clause where it does not apply to the entire clause is both confusing and unnecessary. Ai Group also submitted that the proposed changes:

‘…are inconsistent with the approach taken by the Commission throughout the modern award system whereby it has generally decided not to include references to the consultation clause in the very large number of award clauses dealing with hours of work and rosters. Such references are unnecessary and hence conflict with s.138 of the Act. A similar approach has been taken by the Commission in relation to dispute settling. Even though parties have access to the dispute settling clause in the relevant award, if a dispute arises in relation to the operation of any award clauses, it is unnecessary to include a reference to the dispute settling clause under each provision.’ 52

[91] We dealt with this issue in the June 2017 decision in relation to the Manufacturing Award. 53 We expressed satisfaction that the inclusion of a reference to the consultation provision in a clause which otherwise suggests the employer retains sole discretion to alter hours of work avoids confusion. However, we did not consider the change proposed by the AMWU would achieve what it set out to do and we amended the clause in the Manufacturing Award by inserting an additional sentence at the end of the clause reading ‘Any change to rosters or hours of work is subject to the consultative provisions in clause 41.2.’54

[92] In our June 2018 decision we stated that, as the same reasoning is applicable in this award, we are satisfied that the inclusion of a reference to the award’s consultation provisions will avoid confusion. We resolved to amend clause 8.2(b) 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 22.2.’

[93] In a submission dated 16 July 2018, Ai Group submit that the proposed provision is erroneous and creates an inconsistency between clause 8.2(b) and clause 22.2. 55 Ai Group states clause 22.2 applies only where an employer is proposing to change an employee’s regular roster or ordinary hours and the additional sentence proposed by the Full Bench is “clearly cast in far broader terms”.56

[94] Ai Group submit that any change made to clause 8.2(b) of the exposure draft resulting from the decision should accurately reflect the scope of clause 22.2. 57

[95] We received no other submission in relation to this issue.

[96] There is merit in the submission advanced by Ai Group. In light of their submission, we have revised the proposed amendment to more accurately reflect the scope of clause 22.2. We will amend clause 8.2(b) by adding an additional sentence at the end of the clause that reads ‘Any change to regular rosters or ordinary hours of work is subject to the consultative provisions in clause 22.2.’

[97] This issue arises in a small number of other exposure drafts in group 1, which are listed at Attachment B to this decision. We propose to vary the awards listed in Attachment B in the same manner as we have set out above, that is, to add a sentence to the relevant paragraph in each exposure draft in the following terms:

‘Any change to regular rosters or ordinary hours of work is subject to the consultative provisions in clause XX.X.’

[98] Interested parties are invited to file a submission in relation to the above proposal, by 4.00 pm on 25 September 2018. Submissions should be sent to amod@fwc.gov.au. Absent any objection to the course proposed we will vary the awards in Attachment B as set out above.

3.6 Timber Industry Award 2010

Item 2—casual employees

[99] In our June 2018 decision we formed a provisional view in relation to the outstanding issue of Item 2 in the Timber Industry Award. The issue was outlined at paragraphs [425] – [427] of the decision and deals with the wording of the clause relating to casual loading.

[100] In their submission dated 20 November 2015 the AWU submitted that the wording in clause 7.4(c) should be amended from ‘for each ordinary hour worked’ to ‘for each hour worked’ as the casual loading for this award is paid for all hours worked. 58 ABI reserved the right of reply to this submission should the AWU press their submission.59

[101] The relevant provisions of the current award appear at clause 12.2(a) and (b) and read as follows:

‘(a) A casual employee will be paid per hour 1/38th of the award rate applicable for the work performed plus a loading of 25% of the applicable rate of pay.

(b) A casual employee who works in excess of the ordinary hours fixed for weekly employees on any day will be paid at the appropriate overtime rate provided in clause 30—Overtime, Saturday, Sunday and public holiday payments—day work and shiftwork based on their ordinary rate of pay (including the loading provided for in clause 12.2(a)).’

[102] Clause 7.4(c) and (d) of the Exposure Draft read as follows:

‘(c) Casual loading

For each ordinary hour worked, a casual employee must be paid:

•  the ordinary hourly rate; and

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

for the classification in which they are employed.

(d) A casual employee who works in excess of the ordinary hours fixed for day workers in clause 12.2 will be paid at the appropriate overtime rate provided in clause 24—Overtime based on their ordinary rate of pay (including the loading provided for in clause 7.4(c)).’

[103] In our June 2018 decision we observed that the loading is not confined to work performed during ordinary hours in the current award and that the drafting of clause 7.4(c) of the Exposure Draft has inadvertently changed the operation of this provision. On that basis we expressed the provisional view that the word ‘ordinary’ be deleted from the phrase ‘for each ordinary hour worked’.

[104] Interested parties were provided an opportunity to comment on our provisional view. We received submissions from the AWU, CFMMEU and AMWU.

[105] The AWU and CFMMEU support the provisional view of the Full Bench. 60

[106] The AMWU commented that it does not oppose the provisional view of the Full Bench. 61

[107] We received no other submissions in relation to this issue.

[108] We confirm our provisional view. The word ‘ordinary’ will be deleted from the phrase ‘for each ordinary hour worked’ in clause 7.4(c) of the Exposure Draft.

Next Steps

[109] There are no other outstanding items relating to the Group 1 awards.

[110] Each exposure draft will be updated and republished. Parties will be provided with one final opportunity to comment on the technical and drafting aspects of the exposure drafts in respect of the Group 1 awards. This will not be an opportunity to reargue matters which have already been determined, but will provide interested parties with an opportunity to comment on variations made to the exposure drafts to incorporate decisions relating to ‘common issues’ and any technical and drafting issues determined in this decision.

[111] A Statement regarding the process for finalising the exposure drafts and concluding the award stage of the Review will be issued in due course.

PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR700126>

Attachment A—List of Group 1 awards

Group 1A & 1B (11 awards)

Award code	Award title	Subgroup
MA000060	Aluminium Industry Award 2010	1B
MA000098	Ambulance and Patient Transport Industry Award 2010	1A
MA000054	Asphalt Industry Award 2010	1B
MA000055	Cement and Lime Award 2010 1	1B
MA000022	Cleaning Services Award 2010	1A
MA000056	Concrete Products Award 2010	1B
MA000024	Cotton Ginning Award 2010	1A
MA000057	Premixed Concrete Award 2010	1B
MA000037	Quarrying Award 2010 1	1B
MA000107	Salt Industry Award 2010	1B
MA000016	Security Services Industry Award 2010	1A

¹ The Full Bench proposes amalgamating these two awards – see [2014] FWCFB 9412 at [172]

Group 1C, 1D & 1E (19 awards)

Award code	Award title	Subgroup
MA000001	Black Coal Mining Industry Award 2010		1D
MA000061	Gas Industry Award 2010		1E
MA000062	Hydrocarbons Industry (Upstream) Award 2010		1E
MA000010	Manufacturing and Associated Industries and Occupations Award 2010		1C
MA000093	Marine Tourism and Charter Vessels Award 2010		1E
MA000086	Maritime Offshore Oil and Gas Award 2010		1E
MA000059	Meat Industry Award 2010		1C
MA000011	Mining Industry Award 2010		1D
MA000072	Oil Refining and Manufacturing Award 2010		1D
MA000069	Pharmaceutical Industry Award 2010		1C
MA000074	Poultry Processing Award 2010		1C
MA000108	Professional Diving Industry (Industrial) Award 2010		1E
MA000109	Professional Diving Industry (Recreational) Award 2010		1E
MA000015	Rail Industry Award 2010		1D
MA000053	Stevedoring Industry Award 2010		1D
MA000017	Textile, Clothing, Footwear and Associated Industries Award 2010		1C
MA000071	Timber Industry Award 2010		1C
MA000089	Vehicle Manufacturing, Repair, Services and Retail Award 2010		1C
MA000044	Wool Storage, Sampling and Testing Award 2010		1C

Attachment B—Exposure drafts in which a cross reference to the consultation obligations will be included (see paragraphs [97]-[98] of this decision)

Exposure Draft	Group	Clause References
Manufacturing Award	1C	13.2(d); 13.3(c) and 13.5(a)
Meat Industry Award	1C	8.7(c) and 16.5

 1   [2017] FWCFB 3177

 2   [2018] FWCFB 3802

 3   [2014] FWCFB 9412

 4   [2015] FWCFB 7236

 5   [2015] FWCFB 4658

 6   [2015] FWCFB 6656

 7   Ai Group submission, 23 September 2016 at paras 14-16; 28-30; 45-47; 55-57; 81-83; Ai Group submission, 11July 2017 at paras 22-23; 48-49; 88-89; 102-103;189-190

 8   Ai Group submission, 16 July 2018 at para 3

 9   Ai Group submission, 16 July 2018 at paras 4 – 12

 10   Ai Group submission, 19 January 2018 at paras 3-5

 11   Ai Group submission, 19 January 2018 at para 2

 12   [2017] FWCFB 3541; [2017] FWCFB 6181 and [2018] FWCFB 4695

 13   [2017] FWCFB 3541 at 333

 14   Ai Group submission, 11 July 2017; Ai Group submission 19 January 2018 and AMWU submission 19 January 2018

 15   UV submission, 19 July 2018 at para 4

 16   UV submission, 30 June 2017 at paras 7-12

 17   UV submission, 19 July 2018 at para 5

 18   UV submission, 19 July 2018 at paras 6, 11

 19   UV submission, 19 July 2018 at paras 9

 20   UV submission, 19 July 2018 at paras 10-11

 21   AWU submission, 16 July 2018 at para 5

 22   [2015] FWCFB 4658

 23   Ai Group submission, 20 November 2015 at paras 107-109

 24   [2015] FWCFB 7236

 25   AWU submission, 13 July 2018 at para 6

 26   AMWU submission, 16 July 2018 at para 8

 27   Ai Group submission, 16 July 2018 at para 13

 28   Ai Group submission, 16 July 2018 at para 20

 29   Ai Group submission, 16 July 2018 at para 20

 30   Ai Group submission, 16 July 2018 at para 20

 31   Ai Group submission, 16 July 2018 at para 21

 32   AWU submission, 24 November 2015 at para 4

 33   AWU submission, 24 November 2015 at para 5

 34   AWU submission, 16 July 2018 at para 7

 35   AFEI submission, 16 July 2018 at para 3

 36   AFEI submission, 16 July 2018 at para 2

 37   AFEI submission, 16 July 2018 at para 3

 38   AFEI submission, 16 July 2018 at para 8

 39   AFEI submission, 16 July 2018 at para 9

 40   AFEI submission, 16 July 2018 at para 20

 41   AFEI correspondence, 29 March 2018

 42   AWU submission, 16 July 2018 at paras 8-9

 43   AFEI correspondence, 18 July 2018

 44   AMWU submission, 19 November 2015, at para 6

 45   Exposure draft – Poultry Processing Award 2015, 13 June 2017 at clause 8.2(b)

 46   AMWU submission, 20 November 2015, at paras 10-14

 47   [2015] FWCFB 7236

 48   AMWU submission, 20 November 2015, at para 10

 49   AMWU submission, 19 November 2015, at para 6

 50   Ai Group submission, 7 December 2015, at para 182

 51   Ai Group submission, 7 December 2015, at para 86

 52   Ai Group submission, 7 December 2015, at para 81

 53   [2017] FWCFB 3177

 54   [2017] FWCFB 3177 at [11]-[12]

 55   Ai Group submission, 16 July 2018 at para 27

 56   Ai Group submission, 16 July 2018 at para 27

 57   Ai Group submission, 16 July 2018 at para 28

 58   AWU submission, 20 November 2015 at paras 8-9

 59   ABI submission, 7 July 2017 at para 37

 60   AWU submission, 16 July 2018 at para 1; CFMMEU – Manufacturing submission, 19 July 2018 at para 6

 61   AMWU submission, 16 July 2018 at para 9