DECISION

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

4 yearly review of modern awards—Hair and Beauty Industry Award 2010
(AM2017/50)

4 yearly review of modern awards – Hair and Beauty Industry Award 2010 – award stage – substantive issues – rostering provisions.

[1] On 28 December 2018, we published a decision in this matter. 1 In that decision, we set out our provisional views in respect to a number of proposed clauses. Submissions were sought from Ai Group, (acting on behalf of itself and Hair and Beauty Australia (HABA)), the Shop, Distributive and Allied Employees Association (SDA) and other interested parties on the provisional view set out therein.

[2] Submissions were provided by the SDA and Ai Group on 23 January 2019 and 25 January 2019, respectively. The SDA filed submissions in reply on 22 February 2019. On 23 February 2019, Ai Group advised that they are content to rely on their written submission dated 18 January 2019 and do not intend file any submissions in reply to the submissions of the SDA dated 17 January 2019. 2

[3] We have considered those submissions and have determined to, in some respects, amend our provisional view. The details are set out below.

Roster Notification Variation

[4] Our provisional view set out in the decision issued in December, is that clause 29 should be as follows:

‘29.1 The employer must ensure that a work roster is available to all employees, either on a notice board which is conveniently located at or near the workplace or through accessible electronic means.

(a) The roster must show for each employee:

(i) the number of ordinary hours to be worked by them each week; and

(ii) the days of the week on which they will work; and

(iii) the times at which they start and finish work.’

29.2 Rosters for permanent employees must be notified to employees at least 14 days in advance.

29.3 (a) An employee’s roster may be changed at any time by:

(i) mutual agreement between the employer and employee prior to the employee arriving for work; or

(ii) the employer giving 48 hours’ notice to the employee in the case of an emergency.

(b) This clause does not apply to casual employees who may have their roster changed at any time.

29.4 An employee’s roster may not be changed with the intent of avoiding payment of penalties, loadings or other benefits applicable. Should such circumstances arise the employee will be entitled to such penalty, loading or benefit as if the roster had not been changed.’

[5] We agree with the submission of Ai Group that, by virtue of clause 13.4, clause 29 did not previously apply to casual employees. 3 There has not been sufficient consideration of the merits of altering that position. We have therefore amended the provisional view so that clause 29 does not have the effect of applying to casual employees. We have also taken into account the views of Ai Group, that the reference to a notice board may limit the way in which a written roster can be provided to employees.4 We have therefore decided to adopt some elements from the parties’ consent position for this part of the clause.

[6] Clause 29.1 will therefore now read as follows:

‘29.1 The employer will provide permanent employees with a written roster (which may be accessible by electronic means).

(a) The roster must show for each employee:

(i) the number of ordinary hours to be worked by them each week; and

(ii) the days of the week on which they will work; and

(iii) the times at which they start and finish work.’

Mutual and Unilateral Change Variation

[7] We agree with the submissions of Ai Group that clause 29.3 (b) in light of the earlier consideration, is superfluous and should be deleted. 5

[8] We also agree with the Ai Group submissions that the provisional clause overly limits the circumstances in which there might be mutual agreement to a roster change to the time prior to an employee arriving for work. 6 We think this is best dealt with by deleting the words “prior to the employee arriving for work” from clause 29.3(a)(i).

[9] We have taken into account the views of the SDA that the scope of the ability to make a unilateral variation beyond a particular day is broadened to allow roster changes beyond a particular day to deal with an emergency. 7 However, we see no reason to limit the operation of the clause in that way. Firstly, an emergency may well necessitate a variation in the roster beyond a particular day and may impact on two or more days. Secondly, the operation of the clause if varied in the manner sought by SDA would be inconsistent with the provisions that allow for a roster change for part time employees in accordance with clause 12.8. Clause 12.8 does not reference a particular day for the purposes of roster change as a result of an emergency. We agree with the SDA that having regard to clause 12.8, clause 29.3(a) should specifically reference full time employees.8 For ease of reference a note has been included referencing part time employee rostering provisions in clause 12.8.

[10] Having regard to this consideration, clause 29.3 will now read as follows:

‘29.3 A full time employee’s roster may be changed at any time by:

(a) mutual agreement between the employer and employee; and

(b) the employer giving 48 hours’ notice to the employee in the case of an emergency.’

[11] The proposed new clause 29 is set out below in its entirety:

‘29. Notification of rosters

29.1 The employer will provide permanent employees with a written roster (which may be accessible by electronic means).

(a) the roster must show for each employee:

(i) the number of ordinary hours to be worked each week;

(ii) the days of the week on which work is to be performed; and

(iii) the times at which they start and finish work.

29.2 Rosters for permanent employees must be notified to employees at least 14 days in advance.

29.3 A full time employee’s roster may be changed at any time by:

(a) mutual agreement between the employer and employee; and

(b) the employer giving 48 hours’ notice to the employee in the case of an emergency.

(Note: rostering provisions specific to part time employees can be found in clause 12.8)

29.4 An employee’s roster may not be changed with the intent of avoiding payment of penalties, loadings or other benefits applicable. Should such circumstances arise the employee will be entitled to such penalty, loading or benefit as if the roster had not been changed.’

[12] Our provisional view is that the proposed new clause 29 as set out above be included in the Award. A draft variation determination reflecting this decision will be issued concurrently. We will provide a further opportunity for any interested party to provide a submission on the proposed new clause 29 as reflected in the draft determination. Any submission made must be filed no later than 4.00 pm (AEDT) 21 June 2019. Any submissions made are to be filed to amod@fwc.gov.au.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

<MA000005  PR708562>

 1   [2018] FWCFB 7874

 2   Ai Group, Correspondence, 23 February 2019.

 3   Ai Group, Submission – Substantive Claims, 25 January 2019, [7].

 4   Ai Group, Submission, 25 January 2019, [10].

 5   Ai Group, Submission, 25 January 2019, [18].

 6   Ai Group, Submission, 25 January 2019, [16] – [17].

 7   SDA, Submission in reply, 22 February 2019, [9].

 8   SDA, Submission, 17 January 2019,[12]