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 – further decision.

CONTENTS

ABBREVIATIONS

1. Introduction

[1] Section 156 of the Fair Work Act 2009 (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 a number of outstanding technical and drafting issues arising out of the awards in Group 4 and should be read in conjunction with the decision issued on 21 March 2018 1 (March 2018 decision) and on 7 August 20182 (August 2018 decision).

[2] The 40 awards allocated to Group 4 are listed at Attachment A to this decision.

[3] This decision should also be read in conjunction with earlier decisions and statements concerning the Review, in particular the Statement referring a number of matters to the plain language process. 3 The previous group stage decisions4, in which the Commission dealt with a number of general drafting and technical issues common to multiple exposure drafts, are also relevant.

[4] This decision takes account of the submissions filed following the August 2018 decision 5.

[5] In the August 2018 decision and the March 2018 decision we noted that in a number of Group 4 awards there were no further issues for this Full Bench to determine. These awards are:

•  Aircraft Cabin Crew Award 2010

•  Airport Employees Award 2010

•  Amusement, Events and Recreation Award 2010

•  Book Industry Award 2010

•  Building and Construction General On-site Award 2010 (Building Award)

•  Fast Food Industry Award 2010 (Fast Food Award)

•  General Retail Industry Award 2010 (Retail Award)

•  Hair and Beauty Industry Award 2010 (Hair and Beauty Award)

•  Hospitality Industry (General) Award 2010 (Hospitality Award)

•  Hydrocarbons Field Geologists Award 2010 (Field Geologists Award)

•  Joinery and Building Trades Award 2010 (Joinery Award)

•  Mobile Crane Hiring Award 2010 (Mobile Crane Award)

•  Racing Clubs Events Award 2010 (Racing Clubs Award)

•  Registered and Licensed Clubs Award 2010 (Clubs Award)

•  Restaurant Industry Award 2010 (Restaurant Award)

•  Supported Employment Services Award 2010

•  Travelling Shows Award 2010

[6] In the August 2018 decision we noted that in a number of awards some substantive issues would be considered by separately constituted Full Benches. These awards are:

•  Aboriginal Community Controlled Health Services Award 2010

•  Aged Care Award 2010

•  Air Pilots Award 2010

•  Airline Operations—Ground Staff Award 2010

•  Architects Award 2010

•  Broadcasting and Recorded Entertainment Award 2010

•  Children’s Services Award 2010

•  Dry Cleaning and Laundry Industry Award 2010

•  Educational Services (Teachers) Award 2010

•  Electrical, Electronic and Communications Contracting Award 2010

•  Food, Beverage and Tobacco Manufacturing Award

•  Funeral Industry Award 2010

•  Journalists Published Media Award 2010

•  Pest Control Award 2010

•  Plumbing and Fire Sprinklers Award 2010

•  Professional Employees Award 2010

•  Social, Community, Home Care and Disability Services Industry Award 2010

•  Supported Employment Services Award 2010

•  Water Industry Award 2010

[7] A Statement was issued on 1 October 2018 dealing with the substantive claims in the above awards. 6

2. Consideration

2.1 Aboriginal Community Controlled Health Services Award 2010

[8] In the August 2018 decision a number of items remained unresolved and a separate Full Bench was constituted to consider and determine the outstanding substantive issues, 7 including substantive variations being pursued by NATSIWHA8 and HSU9.

[9] In the August 2018 decision, we provided parties with an opportunity to file further written submissions in response to UV’s proposed variation to the casual loading clauses in a number of exposure drafts including for the Aboriginal Community Controlled Health Services Award 2010, Car Parking Award 2010, and the Cemetery Industry Award 2010. The following parties filed submissions:

•  HSU 10; and

•  ABI. 11

[10] UV submits that the relevant clause in each exposure draft should be varied by removing the word ‘ordinary’ from the phrase ‘For each ordinary hour worked a casual employee must be paid’…….

[11] The HSU supports UV’s submission. 12

[12] ABI submits that UV’s submission should be dealt with by the AM2017/51 Overtime for Casuals Full Bench as ABI had already provided submissions on the issue to that Full Bench. 13 We agree with ABI. The exposure draft will be updated to reflect the outcome of matter AM2017/51.

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

2.2 Broadcasting and Recorded Entertainment Award 2010

[14] In the August 2018 decision we resolved a number of technical and drafting issues 14 relating to the exposure draft for the Broadcasting and Recorded Entertainment Award 201015 (Broadcasting Award) and a number of outstanding substantive matters were referred to a separately constituted Full Bench.16

[15] Justice Ross conducted a conference of interested parties in relation to the Broadcasting Award on 17 August 2018 to discuss the outstanding issues. 17 On 10 August 2018, a background paper18 concerning the calculation of overtime, loaded minimum hourly rate and the directors loadings was published and was subsequently discussed at the conference. The conference was attended by representatives of:

•  CPSU;

•  MEAA;

•  ADG;

•  Birch Carroll and Coyle Ltd, the Hoyts Corporation Pty Ltd, the Greater Union Organisation Pty Ltd, Village Cinemas Ltd and Independent Cinemas Association of Australia;

•  Live Performance Australia;

•  Seven Network Operations Ltd, Nine Network Pty Ltd and Network 10 Pty Ltd and their related entities; and

•  Commercial Radio Australia. 19

[16] At the conference, the MEAA were directed to file a proposal in relation to the issue concerning the calculation of overtime, by 14 September 2018. 20 In relation to the issue regarding the directors loading and the loaded minimum hourly rate the ADG were directed to file a submission outlining its proposal in relation to the issues.21

[17] Following the conference, submissions were received by the following parties:

•  Cinema Industry Employers

•  MEAA; and

•  ADG.

[18] On 14 September 2018, the MEAA filed a draft determination dealing with the hours of work clause and the overtime clause in the award (specifically relating to the calculation of 50 hour weeks) for the Motion Picture Production stream of the Broadcasting Award.

[19] MEAA’s draft determination is set out as follows (emphasis added):

‘Part XX Motion Picture Production – Broadcasting Recorded Entertainment and Cinema Award

XX. Hours of Work

xx.1 Ordinary hours of work for full-time employees will average 38 hours.By agreement between the employer and employees, hours will be worked on one of the following bases:

(a) in days of up to 10 hours each over five days between Monday to Saturday, such hours to be worked continuously with the exception of meal breaks; or

(b) by agreement with a majority of employees by any other arrangement to a maximum of 152 hours per 28 day cycle.

xx.2 All time worked on a Sunday will be overtime and paid in accordance with clause xx.X —Overtime of this award.

xx.3 Except when living away from home and working on location, hours of work will commence and finish at a nominated place of call. A nominated place of call for the purposes of this award will mean, in the case of a capital city, a place nominated by the employer within 25 km of the GPO of such capital city or in other cases, a place nominated by the employer within 25 km of the employer’s usual place of business.

xx.4 When living away from home and working on location, hours of work will commence and finish at the place where the employee is provided with accommodation.

XX. Overtime

xx.1 Overtime will be classified as scheduled or unscheduled in accordance with the provisions of this clause.

xx.2 Scheduled overtime is overtime which an employee has agreed to work and for which the employer has agreed to pay (whether worked or not) at the commencement of an engagement.

xx.3 Where a 50-hour week is worked, each day will comprise 7.6 ordinary hours and 2.4 hours of scheduled overtime.

xx.4 Scheduled overtime may be contracted as follows:

(a) where a five-day week is worked, scheduled overtime up to a maximum of 2.4 hours (2 hours and 24 minutes) per day may be contracted for; or

(b) where a six-day week is worked, scheduled overtime up to a maximum of 2.4 hours (2 hours and 24 minutes) per day for each day between Monday and Friday inclusive and up to a maximum of 10 hours on Saturday may be contracted for.

xx.5 Subject to other penalties prescribed in this award, payment for all overtime will be made as follows:

(a) Monday to Saturday— 150% of the ordinary minimum hourly rate for the first 2 hours and 200% of the ordinary minimum hourly rate after that; or

(b) Sunday— 200% of the ordinary minimum hourly rate; and

(c) any time worked on any day in excess of 12 hours—300% of the ordinary minimum hourly rate.

xx.6 Where overtime is worked on a day on which ordinary hours are not worked, payment will be made as for a minimum of four hours worked.

xx.7 Any employee recalled to work after leaving the employer’s premises will be paid for a minimum of three hours work at the appropriate overtime rate.’

[20] ADG filed a submission on 14 September 2018 attaching proposed variations to the award including:

•  the removal of the two hour daily cap on prescheduled overtime;

•  confirmation that the ordinary hourly rate for 50 hour week workers is based on the 50 hour rate;

•  clarification and appropriate safeguards around the director’s loading provision for both TV Broadcasting and Motion Picture Production streams.

[21] MEAA also filed a further detailed submission on 21 September 2018 regarding whether the 8% allowance is an allowance for all purposes. Birch Carroll and Coyle Ltd. Hoyts Corporation Pty Ltd, Greater Union Organisation Pty Ltd, Village Cinemas Ltd and the Independent Cinemas Association of Australia also filed a submission on 21 September 2018 noting that in relation to the 8% loading issue, the starting point should be the status quo and noting that if a party seeks a change to a longstanding and substantive award provision the party needs to bring a merit case.

[22] These issues will all be dealt with by the separately constituted Full Bench in AM2018/17.

[23] There are no other outstanding issues for this Full Bench to determine in relation to the Broadcasting Award.

2.3 Car Parking Award 2010

[24] In the August 2018 decision, we provided parties with an opportunity to file further written submissions in response to the UV submission regarding the causal loading issue in a number of exposure drafts, including the Car Parking Award (discussed above at [9] – [12]). The exposure draft will be updated to reflect the outcome of matter AM2017/51.

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

2.4 Cemetery Industry Award 2010

[26] In the August 2018 decision, we provided parties with an opportunity to file further written submissions in response to the UV submission regarding the causal loading issue in a number of exposure drafts, including the Cemetery Award. The discussion of this variation has been discussed above at [9] – [12]. The exposure draft will be updated to reflect the outcome of matter AM2017/51.

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

2.5 Electrical, Electronic and Communications Contracting Award 2010

[28] In the August 2018 decision, we indicated that a separate Full Bench would be constituted to consider and determine a number of outstanding substantive matters in the Electrical Contracting Award.

[29] As was foreshadowed in the August 2018 decision, Justice Ross conducted a mention of interested parties in relation to the Electrical Contracting Award on 17 August 2018 to ascertain how the FPAA wish to proceed (see paras [204]–[209] of the August 2018 decision). The mention was attended by representatives of:

•  FPAA;

•  Ai Group;

•  ABI; and

•  MEA.

[30] Following the mention, the FPAA filed a written submission indicating that discussions took place with respective parties regarding the matter on 20 and 21 August 2018. The FPAA withdrew its claim for separate shift work clauses in both the Electrical Contracting Award and the Plumbing and Fire Sprinklers Award 2010.  22

[31] There are no other outstanding matters for this Full Bench to determine in relation to the Electrical Contracting Award.

2.6 Food, Beverage and Tobacco Manufacturing Award 2010

[32] Following the August 2018 decision there were two outstanding issues in the Food, Beverage and Tobacco Manufacturing Award 2010 (Food Manufacturing Award).

Item 3 – Definitions – applicable rate of pay

[33] In the August 2018 decision we noted that Ai Group had made a detailed submission on the outstanding issue surrounding the ‘applicable rate of pay’ and we agreed with Ai Group that the same approach to the terminology of ‘applicable rate of pay’ should be adopted in the Food Manufacturing Award as in the Manufacturing and Associated Industries and Occupations Award 2010 (the Manufacturing Award). We noted that if the AMWU or any other party seeks to deviate from that established approach it may be pursued as a substantive variation and parties were invited to notify the Commission.

[34] Our August 2018 decision then went on to set out amendments that would be made to the exposure draft of the Food Manufacturing Award as follows: 23

[224] Clause 2 – The definition of “applicable rate of pay” will be deleted.

[225] Clause 13.1(b) will be redrafted as follows:

(b) by agreement between an employer and an individual employee or the majority of employees in an enterprise or part of an enterprise concerned, an employee or employees may be required to work in excess of five hours but not more than six hours at the applicable rate of pay without a meal break. Employees will be paid for the fifth hour at the rate applying immediately prior to the end of the fourth hour.

[226] Clause 13.4 will be redrafted as follows:

13.4 Subject to clause 13.1, an employee must work during meal breaks at the applicable rate of pay rate of pay applying to the employee immediately prior to the scheduled meal break whenever instructed to do so for the purpose of making good any breakdown of plant or for routine maintenance of plant which can only be done while the plant is idle.

[227] Clause 13.5 will be redrafted as follows:

13.5 Except as otherwise provided in clause 13—Meal breaks and except where any alternative arrangement is entered into by agreement between the employer and the employee concerned, employees the rate of 150% of the applicable rate of pay must be paid as follows for all work done during meal hours and thereafter until a meal break is taken:

(a) except in the circumstances referred to in clauses 13.5(b), (c) and (d): 150% of the ordinary hourly rate;

(b) where the unpaid meal break is during ordinary time on a Saturday or Sunday: 200% of the ordinary hourly rate;

(c) where the unpaid meal break is during ordinary time on a shift on which the employee is entitled to a 12.5% loading: 162.5% of the ordinary hourly rate;

(d) where the unpaid meal break is during ordinary time on a shift on which the employee is entitled to a 15% loading: 165% of the ordinary hourly rate;

(e) where the unpaid meal break is during ordinary time on a shift on which the employee is entitled to a 30% loading: 180% of the ordinary hourly rate.

[228] Clause 20.2(f)(iv) will be redrafted as follows:

(iv) Travelling time payment

The rate of pay for travelling time is:

• the applicable rate of pay ordinary hourly rate on Monday to Saturday, and

• 150% of the applicable rate of pay ordinary hourly rate on Sundays and public holidays.

The maximum travelling time to be paid for is 12 hours out of every 24 hours or, when a sleeping berth is provided by the employer for all-night travel, eight hours out of every 24 hours.

[229] Clause 21 will be redrafted as follows:

21. Extra rates not cumulative

The extra rates in this award, except rates prescribed in clause 20.1(f)—Special rates and rates for work on public holidays, are not cumulative so as to exceed the maximum of double the applicable rate of pay ordinary hourly rate.

[230] Clause 23.9(b) will be redrafted as follows:

(b) Where a day worker is required to work overtime on a Saturday, Sunday or public holiday or on a rostered day off, the first rest break must be paid at the employee’s applicable rate of pay ordinary hourly rate.

[231] Clause 23.9(c) will be redrafted as follows:

(c) Where overtime is to be worked immediately after the completion of ordinary hours on a day or shift and the period of overtime is to be more than one and a half hours, an employee, before starting the overtime, is entitled to a rest break of 20 minutes to be paid at the employee’s applicable rate of pay ordinary hourly rate.

[232] Clause 23.12 will be redrafted as follows:

23.12 Standing by

Subject to any custom prevailing at an enterprise, where an employee is required regularly to hold themselves in readiness to work after ordinary hours, the employee must be paid standing by time at the employee’s applicable rate of pay ordinary hourly rate for the time they are standing by.

[233] Clause 28.5(a)(i) will be redrafted as follows:

(i) 7.6 hours of pay at the applicable rate of pay employee’s ordinary hourly rate; or

[35] Submissions were received from Ai Group, UV and the AMWU.

[36] Ai Group raised a concern about the proposed variation to clause 13.1(b) of the exposure draft. The proposed amendment to clause 13.1(b) of the exposure draft is:

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

...

(b) by agreement between an employer and an individual employee or the majority of employees in an enterprise or part of an enterprise concerned, an employee or employees may be required to work in excess of five hours but not more than six hours at the applicable rate of pay without a meal break. Employees will be paid for the fifth hour at the rate applying immediately prior to the end of the fourth hour.’

[37] The relevant clause in the current award states:

‘32.1 An employee must not be required to work for more than five hours without a break for a meal except in the following circumstances:

…

(b) by agreement between an employer and an individual employee or the majority of employees in an enterprise or part of an enterprise concerned, an employee or employees may be required to work in excess of five hours but not more than six hours at the ordinary time rate without a meal break.’

[38] Ai Group submits that the current clause 32.1(b) provides for circumstances in which an employee may be required to work for more than five hours but less than six hours without a meal break. It submits that for the time worked during the fifth hour, the employee is to be paid at the ‘ordinary time rate’. Ai Group is concerned that the proposed variation may be read as a requirement to pay the prescribed rate for the entire fifth hour as the clause did not make clear that payment was not required in respect of a meal break during the fifth hour. 24

[39] Ai Group proposes that clause 13.1(b) of the Exposure Draft be amended to the following:

‘(b) by agreement between an employer and an individual employee or the majority of employees in an enterprise or part of an enterprise concerned, an employee or employees may be required to work in excess of five hours but not more than six hours at the applicable rate of pay without a meal break, at the rate of pay applying to the employee immediately prior to the end of the fourth hour of work. 25’

[40] The AMWU filed a submission on 21 August 2018, noting that it does not oppose Ai Group’s proposed amendment to clause 13.1. 26 The AMWU submitted that the agreed variation to avoid the term ‘applicable rate of pay’ was negotiated in good faith and not intended to alter the entitlement that existed under ‘ordinary time rate.’

[41] UV filed a submission on 21 August 2018 objecting to the amendments at clauses 13.1(b) and 13.4 of the exposure draft. UV submits that in some circumstances, the rate of pay that an employee is entitled to in a later hour of work will vary from the rate of pay that an employee was entitled to in an earlier hour of work. Both the proposed amendments to clauses 13.1(b) and 13.4 ‘lock’ the rate of pay to that which applied in an earlier hour or time. 27 UV submits that if the proposed amendment to 13.1(b) was in effect, the employee would be paid a reduced shift loading for the fifth hour than they are currently entitled to be paid. UV support the retention of the term ‘applicable rate of pay’. It submits, however that if the Commission determined that the term will be removed it is essential that any replacement term clearly states that an employee is entitled to be paid the correct penalties and loadings that apply at the relevant time.

[42] The AMWU filed a further submission on 19 October 2018 related to the issue. The AMWU submit that the Commission has changed the reference from the fifth hour to the fourth hour, which changes the point of reference that the parties’ previously agreed. It submits the Commission also uses a different form of words. It submits the relevant hour which the clause is directed to, where employees might be asked to work through without a meal break is the sixth hour. Therefore, the relevant point of reference should be the pay that applied immediately prior to the end of the fifth hour.

[43] The AMWU proposes that the same form of words which was agreed by the parties above in the Manufacturing Award also be used in the Food Manufacturing Award as follows:

“(b) by agreement between an employer and an individual employee or the majority of employees in an enterprise or part of an enterprise concerned, an employee or employees may be required to work in excess of five hours but not more than six hours without a meal break, at the rate of pay applying to the employee immediately prior to the end of the fifth hour of work.” (agreed words in underline)

[44] In their submission of 17 August 2018, Ai Group also submit a change be made to clause 14.1(b) of the Manufacturing exposure draft as follows:

‘(b) by agreement between an employer and an individual employee or the majority of employees in an enterprise or part of an enterprise concerned, an employee or employees may be required to work in excess of five hours but not more than six hours without a meal break, Employees will be paid for the sixth hour at the rate applying immediately prior to the end of the fifth fourth hour.’

[45] The issue in dispute appears to be whether the clause in both the Manufacturing Award and the Food Manufacturing Award should reference the fifth hour or the fourth hour. This issue will be referred to the separately constituted Full Bench in the Food Manufacturing Award (AM2018/22), who will determine the issue in both awards.

Item 25 – Casual employment

[46] Interested parties were provided with an opportunity to file written submissions in response to our provisional view to vary clause 10.2 of the exposure draft by substituting the word ‘minimum’ with the word ‘ordinary as outlined at [249] of the August 2018 decision. Submissions were received from the AWU 28 supporting the Full Bench’s provisional view. 29 In the absence of any other comment we will adopt our provisional view.

[47] Consistent with the August 2018 decision, a separate Full Bench has been constituted to consider a number of outstanding substantive matters being pursued by UV and the AMWU with respect to the Food Manufacturing Award.

2.7 Funeral Industry Award 2010

[48] In the August 2018 decision we referred a number of outstanding substantive matters in the Funeral Industry Award 2010 (Funeral Award) to a separately constituted Full Bench. 30 Two substantive issues were the subject of a conference before Justice Ross on 17 August 2018.31 A background paper32 was published on 10 August 2018 to facilitate the discussions at the conference. The first issue relates to the interaction between the clauses dealing with minimum periods of engagement for part-time and casual employees who are recalled to work overtime; and the second issue relates to penalty rates for work on a Saturday or Sunday and minimum periods of engagement. The conference was attended by representatives of:

•  UV;

•  AWU;

•  ABI; and

•  AFEI.

[49] At the conference, the Commission agreed to publish a document outlining the relevant clauses in predecessor awards. That document will be issued shortly. The issues will then be heard and determined by a separately constituted Full Bench in AM2018/23.

Item 12 – Calculation of overtime for shiftworkers

[50] In the August 2018 decision we expressed a provisional view that clause 18.6 and 18.7 of the exposure draft would be redrafted to provide overtime subclauses specifically addressing afternoon shiftworkers as well as non-continuing afternoon shiftworkers. We also expressed a provisional view to insert a table into Schedule A, which sets out the hourly rates applicable for shiftworkers while working overtime on an afternoon shift.

[51] Interested parties were provided with an opportunity to comment on our provisional views. Submissions were received from the AWU 33 and ABI.34

[52] The AWU submits that it accepts the provisional view. 35 It also submits that the heading ‘Day shift’ in Table A.1.1 should be amended to ‘Minimum hourly rate.’36 We agree that having the words ‘minimum hourly rate’ inserted in the heading would be useful but we do not agree that the words ‘day shift’ should be removed. We will insert the words minimum hourly rate in brackets after the words ‘day shift’ in the heading.

[53] ABI submits that it did not support the Commission’s provisional view of the calculation of overtime for shift workers and submit that when a shift worker performs overtime, they are entitled to the overtime rate but not the shift loading because shift loadings are only payable with respect to the ordinary hours of work performed by a shift worker and the overtime rates apply instead, not in addition to. 37 ABI submits that it does not agree with any of the calculation methods explored by the Commission in the decision which seeks to apply shift loadings during a period of overtime.

[54] We do not agree with the submission of ABI. The issue was dealt with in detail in the March 2018 decision and the August 2018 decision and ABI’s recent submission has not persuaded us to alter our view.

2.8 Live Performance Award 2010

[55] In the August 2018 decision interested parties were given a final opportunity to notify the Commission of any outstanding substantive items they wished to pursue. Submissions were received from the following parties:

•  Live Performance Australia (LPA) 38; and

•  Queensland Ballet. 39

[56] LPA submitted it would be pursuing a substantive variation, S7 in the summary of submissions 40, to amend the clause relating to casual employees to provide for payment to casual performers who perform in a performance of up to one hour.41

[57] LPA submit that following comments made by the Fair Work Ombudsman in a recent matter regarding casual performers that further amendments were required to clause 31.6 to ensure that the provisions take into account short term project-based work. 42 LPA submitted that it provided proposed variations to the MEAA in the hope of reaching agreement.43 LPA filed a further submission on 15 October 2018 submitting that agreement on the matter had not been reached and they would be pressing the substantive claim.44 A separately constituted Full Bench will hear and determine this matter.

[58] Queensland Ballet filed two submissions (on 21 August 2018 and 15 October 2018), and submit that the exposure draft published on 26 March 2018 ‘makes significant changes to the General Employment Conditions, by removing the option for musicians to be employed on a full-time basis and requiring that all Musicians are engaged on a casual, weekly or part-time basis only’. 45 It notes that removing the ability to employ Musicians on a full-time basis will in practice, seriously impact the ability of Queensland Ballet and other companies who engage Musicians in this manner. It further submits that full time employment continues to be a secure and desirable employment structure for Musicians and request the award be redrafted to provide clarity around the ongoing terms of full-time employment, including applicable minimum wage, rather than removing that option for both employers and employees.46

[59] The amendments that were made to the exposure draft published on 26 March 2018 were as a result of agreement reached between interested parties during conferences before Deputy President Gostencnik in 2017 47, which was set out in our March 2018 decision. We will provide interested parties an opportunity to comment on the submission made by Queensland Ballet before determining the matter. Submissions must be filed to amod@fwc.gov.au no later than 4.00 pm on Tuesday 27 November 2018.

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

2.9 Mannequins and Models Award 2010

[61] In the March 2018 decision, we noted that no submissions had been received in relation to the Mannequins and Models Award 2010 (the Mannequins Award), 48 expressed a number of provisional views and provided parties with a further opportunity to respond.

[62] In the August 2018 decision, we noted that there had still not been any submissions filed in relation to the Mannequins Award, and we confirmed our provisional views (relating to clauses 16.2(b) and 16.2(k) of the exposure draft) and determined that no other changes would be made to the exposure draft. 49

[63] The SDA 50 wrote to the Commission advising that it made a submission on 1 July 201851 addressing outstanding issues in the award, and this submission had been inadvertently overlooked. The SDA requested that the submission be considered.52 We deal with the SDA’s submission below.

Clause 11

[64] Clause 11 of the exposure draft deals with casual employees. The SDA submits that casual employment and rates are governed by clause 16.2 of the Exposure Draft. The SDA further submitted that various engagements, such as parades, paradettes and rehearsals, have maximum hours built in. The SDA advised that these engagements can be any minimum (such as 10 minutes) but cannot exceed the maximum; this is because the engagement has a set rate. 53

[65] In the AM2014/197 Casual employment common issue matter, the Full Bench determined that there was to be a 2 hour minimum engagement for casual employees in awards that do not contain daily minimum engagement. 54 A determination relating to the Mannequins Award has not been issued and the following extract was made in relation to the award by that Full Bench in their decision of 21 September 201855:

‘[14] The SDAEA also submitted that we should defer making any determination to vary the Mannequins and Models Award 2010 to provide for a 2-hour minimum engagement because the structure of the draft determination did not accord with the current provisions of the award. In this respect the SDAEA submitted:

“4. Currently casuals can have shorter engagements but are guaranteed a rate for the engagement. This was explained in the SDA submission to the Award Review on the 1st July 2018 regarding the exposure draft in matter AM 2014/277.

5. The SDA in that submission made the following comment:

Clause 11

Casual employment and rates are governed by the draft clause 16.2. The various ‘engagements’ ie parades, paradettes, rehearsals etc have maximum hours built in. The engagement for these can be any minimum ie 30mins but cannot exceed the maximum hours. The engagement has a set rate regardless if the period is 10mins up to the maximum set for the type of engagement ie ‘single parade’ has a max of 2 hours.

(Clause 11 refers to the current Clause 10 provisions of the Award.)

6. The draft determination would mean models would need to attend for a period longer than is currently required, without any increase in pay. This is not the intent of inserting minimum engagement for casuals. This would be an unintended consequence due to the structure of payments to casual employees under the award.

7. The SDA believes that it is an issue that is now best suited to be referred to the Award Review stage of the Mannequins and Models Award given the unique structure of the award. This will enable the parties and the Commission to ensure that the intent of the minimum engagement for casuals is provided for if and where necessary, but does not cause unintended consequences.”

[15] We accept the SDAEA’s submission that the draft determination is not adapted for the peculiar casual employment provisions of this award, and that the issue of a casual minimum engagement period requires further award-specific consideration. Accordingly no final determination will be made and the issue will be deferred for consideration as part of the specific review of the Mannequins and Models Award.’

[66] A conference will be convened shortly in an effort to resolve this issue.

Item 1 - Clause 11.3 – cancellations and postponements

[67] Clause 11.3 deals with cancellations and postponements and is set out as follows:

‘11.3 Cancellations and postponements

(a) In the case of a person engaged to perform work for less than a day, the following will apply:

(i) if work is cancelled on location, the full amount for the booking is to be paid;

(ii) if less than 24 hours’ notice of cancellation or postponement is given, the full amount for the booking will be paid;

(iii) if between 24 and 48 hours’ notice of cancellation or postponement is given, half the booking amount will be paid;

(iv) if the work is only deferred on 24 hours’ notice, 10% of the booking amount will be paid for the day on which the work was to have been performed and the full amount of the booking when the work is subsequently completed;

(v) if at least 48 hours’ notice of cancellation or postponement is given, no payment is required; and

(vi) if work is cancelled because weather conditions do not permit the satisfactory performance of work, no payment is required.

(b) In the case of engagements of between part of a day and one week in duration:

(i) if less than 48 hours’ notice of the cancellation is given, the full amount for the booking will be paid; or

(ii) if 48 hours’ or more notice of the cancellation is given, no payment is required.

(c) In the case of engagements of one week’s duration or longer:

(i) if less than 14 days’ notice of cancellation is given, one week’s casual wages will be paid; or

(ii) if 14 days’ notice or more notice of the cancellation is given, no payment is required.

[68] In the exposure draft the Commission posed the following question to interested parties:

‘Parties are asked to comment on whether the provisions of clauses 11.3(b) and 11.3(c) apply to postponements as well as cancellations.’

[69] The SDA submitted clauses 11.3(b) and (c) do apply to postponements, but did not advance any argument in support that submission.

[70] Clauses 11.3(b) and (c) are intended to reflect clauses 10.5(c)(ii) and (iii) of the current award, which state:

‘(ii) In the case of engagements of less than one week’s duration but more than a part of a day’s duration:

•  if less than 48 hours’ notice of the cancellation is given, the full amount for the booking will be paid; or

•  if 48 hours’ or more notice of the cancellation is given, no minimum payment is required.

(iii) In the case of engagements of one week’s duration or longer:

•  if less than 14 days’ notice of cancellation is given, one week’s casual wages will be paid; or

•  if 14 days’ notice or more is given, no minimum payment is required. (emphasis added)

[71] The relevant terms of the current award make no mention of the consequences of postponing (as opposed to cancelling) engagements of more than part of a day (in the case of clause 10.5(c)(ii)) or engagements of one week or more (in the case of clause 10.5(c)(iii)). This may be contrasted with the terms of clause 10.5.(c)(i), which deals with engagements of less than a day and expressly deals with the case of ‘cancellation and/or postponement’ of an engagement on less than 24 hours’ notice; between 24 and 48 hours’ notice; and with at least 40 hours’ notice.

[72] We note that the heading of the current clause 10.5(c) is ‘Cancellations and/or postponements’, but the provision is clearly delineated by the duration of the engagement:

•  less than a day (clause 10.5(c)(i));

•  less than a week but more than part of a day (clause 10.5(c)(ii); and

•  one week or longer (clause 10.5(c)(iii)).

[73] Different consequences apply depending upon the duration of the engagement and the current award is silent on what occurs in the event that an engagement of more than part of a day, but less than a week or of one week or longer, is postponed. We acknowledge that there may be merit in making provision for what occurs in the event that engagements of this duration are postponed, as opposed to being cancelled – but that it not what the current award does.

[74] The exposure draft is not intended to amend any existing entitlements in the current award but has been prepared to address some of the structural issues identified in modern awards. In these circumstances we do not propose to amend the exposure draft to extend the provisions of clauses 11.3(b) and (c) to postponements. In the event the SDA wishes to pursue this issue it should make an application to vary the current award. Any such application should be made by no later than 4.00 pm on Tuesday 11 December 2018.

[75] A further question was asked in the exposure draft as follows:

‘Parties are asked to comment on whether clause 11.3(a) should apply to engagements of up to one day, and clause 11.3(b) apply to engagements of more than one day and less than one week.’

[76] The SDA opposes the suggested change to the wording of clauses 11.3(a) and (b), submitting that clause 11.3(b) applies to ‘engagements of between part of a day and one week in duration’ because:

‘the engagement might be for only part of a day i.e. photo shoot of 3 hours each day for 5 days. So changing it to more than a day would mean this type of engagement would be excluded.’

[77] The SDA’s submission is unpersuasive. The current delineation between the circumstances covered by clauses 11.3(a) and (b) is unclear, paragraph (a) applies to engagements of ‘less than a day’ whereas (b) applies to engagements of ‘between part of a day and one week.’ An engagement of, say 3 hours, could fall within (a) or (b). Contrary to the SDA’s submission changing the terms of (b) to read ‘between part of a day and one week’ would not exclude photo shoots of 3 hours per day for 5 days. Such an engagement would be 5 days (i.e. between a day and one week) with the model being required for 3 hours each day (and paid for such in accordance with clause 16.2(a)). We propose to amend clause 11.3(b) accordingly.

Item 3 – Clause 14.1 – rest breaks

[78] Clause 14.1 of the exposure draft deals with rest breaks and is in the following terms:

‘14.1 Rest breaks

(a) Where the engagement is for a continuous period of four hours or more a model will be entitled to a rest break of 15 minutes’ duration.

(b) Rest breaks will be taken at times that will not interfere with the continuity of work where continuity is necessary.’

[79] The Commission asked parties whether clause 14.1 applies to mannequins, house mannequins, models and house models, and whether the rest breaks are paid. In response to these questions, the SDA submit that the rest breaks apply to all employees and the terminology in the clause should refer to ‘employee’ and that such rest breaks are paid. 56

[80] Clause 14.1 of the exposure draft is intended to reflect the terms of clause 21.1 of the current award. Clause 21.1 is not confined to ‘models’, it states:

‘21.1 Rest pauses

(a) Where the engagement is for a continuous period of four hours or more a model will be entitled to a rest pause of 15 minutes’ duration.

(b) Such rest pauses will be taken at times that will not interfere with the continuity of work where continuity is necessary.’

[81] As the present term is not confined to ‘models’ we agree with the SDA that clause 14.1(a) of the exposure draft should be amended, to delete ‘a model’ and insert ‘an employee’. The exposure draft will be amended accordingly.

[82] As for the SDA’s contention that such breaks are ‘paid’, we note that the current award provision does not specify whether ‘rest pauses’ are paid or unpaid. Nor is there any evidence before us as to the industry practice in this regard. In these circumstances we do not propose to amend the exposure draft to require the provision of ‘paid’ rest break. In the event the SDA wishes to pursue this issue it should make application to vary the current award. Any such application should be made by no later than 4.00 pm on Tuesday 11 December 2018.

Item 4 – Clause 15 – additional provisions for mannequins and models

[83] Clause 15 sets out additional provisions for mannequins and models. In the exposure draft parties were asked whether clause 15 applies to house mannequins and models. The SDA submitted that for consistency, this clause should apply to house models and mannequins.

[84] Clause 15 applies in circumstances where a model or mannequin is ‘required to appear in lingerie, foundation garments, semi-nude or nude.’ In such circumstances clause 15.1 provides that the model or mannequin is ‘entitled to have another person of their choosing present at all times during the engagement.’ Given the protective nature of the provision we see no good reason why it should not be extended to ‘house mannequins and models’ engaged in such work.

[85] Parties were also asked whether clause 15.3 applies to mannequins as well as models. Clause 15.3 states:

‘15.3 It shall be a condition of every engagement where photographs are being taken of a model that the employer shall, at the time of booking, inform the model in writing of the details for which the photograph is being taken.’

[86] The SDA submits that consistent with the scope of clause 15.2 (which applies to the engagement of models and mannequins), clause 15.3 should apply to mannequins. The SDA further submits that clause 15.3 should include ‘film or other recording’, so it is consistent with clause 15.2. We agree with the submission put, logic and consistency supports the amendments proposed.

[87] Clause 15.3 will be amended as follows:

•  insert ‘or a house mannequin and model’ after the word ‘model’ in clause 15.1

•  insert ‘mannequin or’ before the word ‘model’ in clause 15.3

•  insert the words ‘film or other recording’ after the word ‘photograph’ in clause 15.3.

Item 5 – Clause 16 – employment type of compere

[88] The Commission asked parties whether a compere can be employed on a full-time or part-time basis and, if so, what their minimum rates are. In response to these questions, the SDA submitted that comperes are only employed on a casual basis due to the nature of the work. A ‘compere’ is a person whose work is compering mannequin parades. The current award makes no provision for a full time or part time minimum rate of pay for a compere. Clause 13.2(j)(ii) provides a rate of pay for ‘freelance comperes’ per engagement. The classification of comperes in the exposure draft is consistent with the current award. No change is required to be made to the exposure draft.

Item 7 – Clause 16.2(k) – measurements

[89] The SDA noted that the clause contains a spelling error, and that “meters” should be changed to “metres”. 57 This typographical error will be corrected.

Clause 17.2(b) – clothing and accessories

[90] The SDA submits that the word “payment” be deleted from clause 17.2(b). 58 Clause 17.2(a) and (b) are as follows:

17.2 Clothing and accessories

(a) Where the employer requires clothing or accessories additional to the employee’s personal wardrobe to be worn, the employer must reimburse the employee for the cost of obtaining such additional clothing or accessories.

(b) Clause 17.2(a) will not apply where an employer provides such clothing or accessories payment.’

[91] We agree with the SDA and propose to delete the word ‘payment’ from the end of clause 17.2(b) as it appears to be a typographical error.

Item 8 – Clause 17.3(c) – meal allowances

[92] Clause 17.3(c) deals with meal allowances for full-time and part-time employees, as follows:

(c) Meal allowances

(i) Overtime—an employee required to work at least one hour of overtime (Monday to Saturday inclusive) after their ordinary time of ending work will be paid a meal allowance of $12.94. Provided that where such overtime work exceeds four hours a further meal allowance of $11.60 will be paid.

(ii) Late night—any employee entitled pursuant to clause 17.3(c)(i) of this award to a second meal break on a weekday will be paid a meal allowance of $12.94.

(iii) Overtime on Sunday—an employee required to work more than four hours overtime on a Sunday will be paid a meal allowance of $12.94 and a further $11.60 when required to work more than eight hours on such day.

(iv) Meal provided—the above allowances will not be payable where the employer has their own cooking and dining facilities and by agreement with the employee supplies a substantial meal which will consist of food comprising soup, entree or joint, vegetables and sweets.

(v) Payment—meal money must be paid on the same day as the overtime is worked or in the weekly or fortnightly pay.

[93] The following question was posed at 17.3(c)(ii) of the exposure draft:

‘Parties are asked to clarify the interaction between clauses 17.3(c)(i) and (ii) – does clause 17.3(c)(ii) mean a second meal allowance on a Monday – Friday is $12.80 (now $12.94) rather than $11.47 (now $11.60).’

[94] The SDA submits that the reference in clause 17.3(c)(ii) to clause 17.3(c)(i) should be a reference to clause 14.2 instead. Clause 14.2 deals with meal breaks. The SDA submits that ‘the entitlement to this meal allowance for late night was not for working overtime but if you were due a second meal break for the day.’ The SDA referred to an attachment to an extract from clauses 31 and 32 of the relevant pre-modern federal award. The submission does not include the attachment and Commission staff have been unable to locate a relevant reference to clauses 31 and 32 of a premodern award. It appears this may be a reference to clauses 21 and 22 of the Mannequins and Models Award 2000.  59 A further difficulty with the SDA submission is that clause 14.2 does not explain when an employee is entitled to a second meal break. The interaction between clauses 17.3(c)(i) and (ii) remains problematic.

[95] A conference will be convened shortly in an effort to resolve this issue.

[96] Another question was posed in the exposure draft at 17.3(c)(iv) as follows:

Parties are asked to comment on what is meant by ‘entr�e or joint’ and whether another phrase can be used for the same effect.

[97] Clause 17.3(c)(iv) deals with the circumstance where a meal is provided by the employer and the meal allowance is not payable, it states:

‘(iv) Meal provided—the above allowances will not be payable where the employer has their own cooking and dining facilities and by agreement with the employee supplies a substantial meal which will consist of food comprising soup, entree or joint, vegetables and sweets.’

[98] In relation to the phrase “entr�e or joint”, the SDA submits the provision should be “a substantial meal which will consist of soup, a main course of meat, fish or protein with vegetables, and dessert”. 60 We agree with the submission of the SDA. We agree with the SDA that the existing draft ‘lacks currency’ and accordingly requires updating, but we do not agree with the solution the SDA proposes. It is unnecessarily prescriptive. Given that the provision of a meal as a substitute for a meal allowance can only occur with the agreement of the employee it is sufficient if the provision requires that the employer ‘supplies a substantial, three course, meal.’ We will amend the exposure draft accordingly.

Item 9 – Clause 17.4 – allowances – casual employees

[99] The exposure draft posed three questions at clause 17.4, which deals with allowances for casual employees. The first question was:

Parties are asked to comment on whether clause 17.4(a) and (b) applied to only models, or models and mannequins.

[100] Clauses 17.4(a) relates to the travelling allowance for casuals and 17.4(b) sets out the allowance related to distant work, fares and accommodation. The SDA submit the clauses also apply to mannequins. We agree with the SDA and see no good reason why the clause would not also apply to mannequins. We propose to insert the words ‘or mannequin’ after the word ‘model’ in clause 17.4(a).

[101] Two further questions were posed at clause 17.4(b) of the exposure draft. The clause is in the following terms:

17.4 Casual employees

…

(b) Distant work, fares and accommodation

(i) All fares to and from engagements outside of the radius of 50 km from the capital city GPO or outside of the radius of 50 km from the place in which the model resides will be reimbursed by the employer.

(ii) Such payment will be sufficient to cover the cost of first class rail travel where it is available.

(iii) Where the journey exceeds 240 km and normal air transport services are available, and where first class rail travel is not available, the payment must be sufficient to cover at least economy class air fares.

...

[102] The second and third questions posed at 17.4(b)(i) and (iii) of the exposure draft are as follows:

Parties are asked to comment on what should occur when the engagement is outside the 50 km radius of one location but within the 50 km radius of the other.

Parties are asked to clarify whether the 240 km journey includes the return trip.

[103] In response to the first question the SDA submits that fares are based on the distance from the GPO and not moving from one engagement to the other. The SDA confirmed that if the engagement is more than 50 kilometres away from the GPO regardless of whether it is the second or third engagement of the day, the clause applies. The SDA also maintained that the 240 kilometre journey includes the return trip; therefore it is 120 kilometres for one way. 61

[104] The SDA’s submission provides clarification on how it interprets the relevant provisions and does not seek any change to the exposure draft.

Clause 21 – Overtime

[105] Clause 21.1 of the exposure draft deals with overtime as follows:

‘21.1 For all work done in excess of 38 hours per week, or outside the spread of ordinary hours in clause 12.4, an employee must be paid at:

(a) 150% of the minimum hourly rate for the first three hours; and

(b) 200% of the minimum hourly rate after three hours.’

[106] The SDA proposes a new subclause be added to clause 21.1 to address the rate for Sunday work. The wording of their new subclause 21.1(c) is as follows:

‘(c) 200% of the minimum hourly rate for work on a Sunday.’ 62

[107] Clause 22.2 of the exposure draft sets out the rate for Sunday work as follows:

‘22.2 Sunday work

The rate for all work done on Sunday will be 200% of the employee’s minimum hourly rate.’

[108] Given the terms of clause 22.2 of the exposure draft we see no reason to include the proposed subclause 21.1(c) in the exposure draft.

Item 10 – Clause 22.1 – penalty rates for full-time or part-time employees – evening and Saturday work

[109] The following question was posed at clause 22.1 of the exposure draft (which deals with evening and Saturday work for house mannequins and models):

‘Parties are asked to clarify when each of the above allowances are payable given that ordinary hours on a Thursday and Friday are from 7.00am to 6.00pm (clause 12.4).’

[110] Clause 22.1 of the exposure draft is as follows:

‘22.1 Evening and Saturday work

(a) House mannequin or model

(i) An additional $4.83 per hour will be paid to employees for all time worked within ordinary hours between 6.00 pm and 9.00 pm on a weekday.

(ii) An additional $9.97 per hour will be paid to employees for all time worked within ordinary hours between 7.00 am and 6.00 pm on a Saturday.’

[111] The SDA confirmed that the allowances do not apply to Thursdays and Fridays as the hours 6pm to 9pm on a weekday (see clause 22.1(a)(i)) are outside the ordinary hours and would be paid as overtime. 63 We agree. To provide greater clarity we will delete the reference to weekday and insert ‘Monday, Tuesday or Wednesday.’ We will also insert a note, as follows:

‘Note: Ordinary hours of work on a Thursday, Friday and Saturday are to be worked between 7.00 am and 6.00 pm (see clause 12.4). Ordinary hours worked outside these times on these days are paid at overtime rates (see clause 21.1).

Item 11 – Clause 26.2 – public holiday rates

[112] The Commission posed a question at clause 26.2 of the exposure draft as follows:

‘Parties are asked to clarify the rate of pay for employees working on a public holiday, including Christmas Day.’

[113] The SDA submits that the rate is found in clause 26.5(d), and submit that this is a drafting error and 26.5(d) should be a standalone sub-clause. The SDA referred to clause 49.12 of the previous Federal award. 64 Commission staff have been unable to locate a relevant reference to clause 49.12 of the previous federal award. It appears it may be a reference to clause 26.14 of the Mannequins and Models Award 2000. 65

[114] Clause 26.5 of the exposure draft is set out below:

‘26.5 Time off instead of payment for penalty rates

(a) Time off instead of payment of the penalty rate prescribed for work on a public holiday pursuant to clause 26 may be provided if an employee so elects and it is agreed by the employer.

(b) Such time off must be taken at a mutually convenient time and within four weeks of the public holiday or, where agreed between the employee and the employer, may be accumulated and taken as part of annual leave.

(c) Time off instead of payment for penalty rates must equate to the penalty rate, e.g. if the employee works three hours on a public holiday and the additional penalty rate is 150% of the minimum hourly rate and the employee elects to take time off instead of payment, the time off would equal 4.5 hours.

(d) All work performed on a public holiday or a substituted day will be paid at 250% of the employee’s minimum hourly rate.’

[115] Clause 27.5 of the current award is set out in similar terms:

‘27.5 Time off instead of payment for penalty rates

(a) Time off instead of payment of the penalty rate prescribed for work on a public holiday pursuant to this clause may be provided if an employee so elects and it is agreed by the employer.

(b) Such time off must be taken at a mutually convenient time and within four weeks of the public holiday or, where agreed between the employee and the employer, may be accumulated and taken as part of annual leave.

(c) Time off instead of payment for penalty rates must equate to the penalty rate, i.e. if the employee works three hours on a public holiday and the additional penalty rate is time and a half and the employee elects to take time off instead of payment the time off would equal 4.5 hours.

(d) All work performed on a public holiday or a substituted day will be paid at the rate of double time and a half.’

[116] The submission of the SDA in relation to this clause has merit. There is no other clause in the award that provides a public holiday rate and it seems to be illogically placed in clause 26.5(d) which deals with time off instead of penalty rates. We propose to renumber clause 26.5(d) as clause 26.6.

Item 12 – Schedule A.1 – adjustment of casual and penalty rates

[117] The Exposure Draft posed a question about whether the award should contain a method for adjusting the rates in clauses 16.2(a)-(f) in the event that a flat dollar increase was granted in an Annual Wage Review. The Commission advised that clause 5.1 of the pre-reform award, Mannequins and Models Award 2000, provided that rates were adjusted in line with changes to the house model rate. If parties agreed, the table in Schedule A1 could be expanded to include the rates in clause 16.2(a)-(f) by reference to the standard rate to provide transparency when adjusting them following an Annual Wage Review.

[118] The SDA submits that ‘the tables do not state the dollar amount that the additional amounts are added to and that this is confusing and could lead to employers missing these additional amounts and assuming that they are the total amount paid. The SDA added that evening work rates only apply to hours within the span of ordinary hours. 66

[119] The SDA does not specifically address the question whether the award should contain a method for adjusting the rates.

[120] All interested parties will be given a further opportunity to comment on this issue upon the publication of the further exposure draft.

[121] A further exposure draft incorporating the changes referred to above will be published shortly. Interested parties will have 4 weeks to provide any final comment on the exposure draft. Any issues raised will be determined on the papers absent a request for an oral hearing. Liberty to apply.

2.10 Pest Control Industry Award 2010

[122] Following the August 2018 decision, there remains one outstanding technical and drafting issue relating to the Pest Control Industry Award 2010 (Pest Control Award).

Item 2 – Meal allowance – country work

[123] In the August 2018 decision we expressed a provisional view that clause 17.3(c)(iv) be amended to provide clarity as to when the meal allowance would be payable. We proposed to re-draft the clause as follows:

‘(iv) An employee required to undertake country work will be paid a meal allowance of $8.54 for each meal occurring during the travel time described in clause 17.3(c)(iii). This allowance will not be payable if the employee is otherwise entitled to a meal allowance pursuant to clause 17.3(a) or 17.3(c)(ii).’

[124] We provided interested parties with a final opportunity to comment on the proposed re-draft and submissions were received from the AWU 67 and AFEI.68

[125] Both AFEI 69 and the AWU70 support our provisional view. Clause 17.3(c)(iv) of the Exposure Draft will be amended accordingly.

[126] There are no other outstanding issues for this Full Bench to determine in relation to the Pest Control Award.

2.11 Social, Community, Home Care and Disability Services Industry Award 2010

[127] There remains one outstanding technical and drafting issue relating to the Social, Community, Home Care and Disability Services Industry Award 2010 71 (SCHADS Award).

Item 32 – Minimum wages

[128] In the August 2018 decision interested parties were provided an opportunity to comment on our provisional view that clauses F.1 and F.3 of the exposure draft be deleted and to remove or significantly re-draft of Schedule A—Transitional provisions. We indicated that the matter would be determined on the papers. The following parties filed submissions:

•  Jobs Australia

•  HSU

•  ASU

[129] In relation to Schedule A, Jobs Australia submits that it does not oppose the deletion of the schedule as it deals with transitional matters that have now been completed. 72 The ASU submits that Schedule A is inaccurate and currently has no practical application.73 The HSU submits that Schedule A should be significantly re-drafted to remove the transitional provisions which are no longer relevant.74 We do not agree with the submission of the HSU that the schedule be significantly redrafted to remove the transitional provisions which are no longer relevant. The schedule only contains transitional provisions which are no longer relevant. There would be no purpose in ‘redrafting’ the Schedule.

[130] We agree with the ASU and Jobs Australia. Schedule A will be deleted.

[131] In relation to clause F.1, the ASU submit that it is it’s first preference to retain the clause but it be varied so that the pay summaries consider the additional payment required by the Equal Remuneration Order (ERO) or the Transitional Pay Equity Order (TPEO). 75 It submits that in its current form F.1 is inaccurate and confusing. The ASU submit that if the Full Bench is minded to delete clause F.1 then the entire Schedule F should be deleted as this will ensure that each stream of the SCHADS Award is treated consistently.76

[132] The HSU submitted a preference for F.1 to be retained, but varied to reflect the rates payable to employees covered by the ERO or TPEO. 77 Jobs Australia submit that F.1 should be deleted as the clause does not include the additional payments that arise from the ERO and while it might be desirable to redraft the clause to provide a summary of ordinary and penalty rates for employees in Schedules B and C of the award it is not practical to do so. They submit that there are a wide range of transitional pay rates under the ERO that derive from award-based transitional instruments and a summary that attempts to present the rates across all possible instruments is likely to be too unwieldy to be of practical assistance.78

[133] Jobs Australia further submits that the matter could be reviewed in the second half of 2020 when the calculation of the final instalment of the ERO will result in an alignment of the varying transitional rates and reduce the current complexity.

[134] We agree with Jobs Australia that it would be impractical to attempt to summarise all transitional pay rates under the ERO. We also agree with their submission that the matter be reviewed in the second half of 2020 when the transitional rates are aligned. Clause F.1 will be deleted from the exposure draft. We propose to insert a note in the exposure draft explaining that monetary summaries for these classifications are not provided and noting that they may be inserted in 2020 when transitional rates are aligned.

[135] The HSU, Jobs Australia and the ASU all submit that clause F.3 of the exposure draft should be retained as Home Care employees are not covered by the ERO. 79 We will retain F.3 of the exposure draft in its current form.

[136] There are no other outstanding technical and drafting issues for this Full Bench to determine with regards to the SCHADS Award.

2.12 Surveying Award 2010

[137] In the August 2018 decision APESMA were asked to notify the Commission in writing (to amod@fwc.gov.au) by no later than 4.00 pm on Tuesday 21 August 2018 if they intend to pursue a substantive claim relating to clause 14 of the exposure draft (ordinary hours of work). 80 No submission from APESMA was received.81

[138] As no submission has been received from APESMA we consider this item to be withdrawn.

3. Next Steps

Live Performance Award

[139] In relation to the issue outlined at paragraphs [58] – [59] of this decision regarding the ability to employ Musicians on a full-time and part-time basis under the award, interested parties have until 4.00 pm on 27 November 2018 to file a submission regarding the issue.

Mannequins and Models Award

[140] A conference will be convened to discuss the interaction between clauses 17.3(c)(i) and (ii) (see para [93] of the decision) and also the issue relating to minimum engagements under the exposure draft.

[141] In the event the SDA wish to file an application to vary the current award (as discussed at paragraphs [73] and [81]) they have until 4.00 pm on Tuesday 11 December 2018.

[142] A revised version of the exposure draft will be published shortly (see paragraph [119]). Interested parties will have 4 weeks from the date of publication to file any final comment on the revised exposure draft.

Finalising exposure drafts

[143] 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 4 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’.

[144] A Statement regarding the process for finalising the exposure drafts and concluding the award stage of the Review will be issued shortly.

PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR702106>

Attachment A

List of Group 4 awards

 1   [2018] FWCFB 1548

 2   [2018] FWCFB 4175

 3   [2018] FWC 1544

 4   For example, [2017] FWCFB 3433

 5   FPAA, submission, 24 August 2018

 6   [2018] FWC 6107

 7   [2018] FWCFB 4175 at Attachment B

 8   NATSIWHA, submission, 26 April 2018

 9   HSU, submission, 19 April 2018

 10   HSU, submission, 28 August 2018

 11   ABI, submission, para 3

 12   HSU, submission, 28 August 2018, para 2

 13   ABI, submission, para 3.4

 14   [2018] FWCFB 4175, at [149]-[151]

 15   MA000091

 16   [2018] FWCFB 4175 at Attachment B

 17   Transcript, 17 August 2018

 18   Background paper, 10 August 2018

 19   Transcript, 17 August 2018

 20   Transcript, 17 August 2018 at PN87

 21   Transcript, 17 August 2018 at PN169

 22   FPAA submission, 24 August 2018

 23   [2018] FWCFB 4175 at [223] – [233]

 24   Ai Group submission, 20 August 2018, paras 6-7

 25   Ai Group submission, 20 August 2018, para 10

 26   AMWU submission, 21 August 2018, para 4

 27   United Voice submission, 21 August 2018, para 7

 28   AWU submission, 21 August 2018, para 10

 29   AWU submission, 21 August 2018, para 10

 30   [2018] FWCFB 4175 at Attachment B, [292], [293], [298], [299]

 31   Transcript , 17 August 2018

 32   Background paper, 10 August 2018

 33   AWU submission, 21 August 2018,

 34   ABI submission, 29 August 2018, para 2

 35   AWU submission, 21 August 2018, para 11

 36   AWU submission, 21 August 2018, para 12

 37   ABI submission, 29 August 2018, para 2.1 and submission, 20 April 2017

 38   Live Performance Australia, submission, 21 August 2018

 39   Queensland Ballet submission, 21 August 2018

 40   Live Performance Award - summary of proposed substantive variations, 20 November 2017

 41   Live Performance Australia, submission, 21 August 2018, para 3.

 42   Live Performance Australia, submission, 21 August 2018, para 5

 43   Live Performance Australia, submission, 21 August 2018, para 7

 44   Live Performance Australia, submission, 15 October 2018 at paras 4-5

 45   Queensland Ballet submission, 15 October 2018 at p.1

 46   Queensland Ballet submission, 15 October 2018 at p.1

 47   See Transcript of 27 March 2017; Transcript of 31 May 2017; Transcript of 17 August 2017

 48   [2018] FWCFB 1548 at [541] – [542]

 49   [2018] FWCFB 4175 at [317] – [318]

 50   SDA correspondence, 8 August 2018

 51   SDA submission, 1 July 2018

 52   SDA correspondence, 8 August 2018

 53   SDA submission, 1 July 2018, para 1

 54   [2017] FWCFB 3541 at [40]

 55   [2018] FWCFB 5846

 56   SDA submission, 1 July 2018, para 4

 57   SDA submission, 1 July 2018, para 7

 58   SDA submission, 1 July 2018, para 8

 59   AP808516

 60   SDA submission, 1 July 2018, para 9

 61   SDA submission, 1 July 2018, para 10

 62   SDA submission, 1 July 2018, para 11

 63   SDA submission, 1 July 2018, para 12

 64   SDA submission, 1 July 2018, para 13

 65   AP808516

 66   SDA submission, 1 July 2018, para 14

 67   AWU submission, 21 August 2018

 68   AFEI submission, 21 August 2018

 69   AFEI submission, 21 August 2018, para 2

 70   AWU submission, 21 August 2018, para 13

 71   MA000100

 72   Jobs Australia submission, 28 August 2018 at para 2

 73   ASU submission, 27 August 2018 at para 2

 74   HSU submission, 28 August 2018 at para 6

 75   ASU submission, 27 August 2018 at para 3

 76   ASU submission, 27 August 2018 at para 7

 77   HSU submission, 28 August 2018 at para 4

 78   Jobs Australia submission, 28 August 2018 at paras 3-4

 79   HSU submission, 28 August 2018 at para 5; Jobs Australia submission, 28 August 2018 at para 6; ASU submission, 27 August 2018 at para 8

 80   [2018] FWCFB 4175 at 418

 81   The AMWU did file a submission on 21 August 2018 with respect to clause 14 of the exposure draft, noting that it ‘holds the same view as that expressed by APESMA, being that in the absence of any indication as to how and over what period the hours of work may be averaged, ordinary hours therefore should not exceed 38 hours per week