STATEMENT

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

4 yearly review of modern awards—Sugar Industry Award 2010
(AM2017/56)

4 yearly review of modern awards – Sugar Industry Award 2010 – substantive issues.

[1] On 9 June 2020 correspondence was received from the National Farmers Federation (NFF) in relation to clause 17.2(a) of the Future Sugar Industry Award 2020 scheduled to commence on 18 June 2020. That correspondence followed enquiries made by the NFF on 18 May 2020 seeking transcript of conferences I conducted in early 2016 in relation the modernisation of the Sugar Industry Award. In making its enquiries on 18 May 2020 the NFF did not foreshadow any particular concern it may have had about the terms of the Future Sugar Industry Award 2020.

[2] The issues raised by the NFF on 9 June 2020 concern Clause 17.2(a) of the Future Sugar Industry Award 2020. That clause is in the following terms:

“Field sector employees may be engaged in writing on a single contract hourly rate basis and will be paid 115% of the minimum hourly rate and must be paid that rate for each and every hour of work, instead of the provisions of 15.2(c), irrespective of the number of hours worked per day or per pay period or the days of the pay period on which the work is performed.”

[3] Clause 15.2(c) of the Future Sugar Industry Award 2020 deals with weekend rates.

[4] The equivalent provision in the current Sugar Industry Award 2010 is in the following terms:

“Field sector employees may be engaged in writing on a single contract hourly rate basis and will be paid a 15% loading above the ordinary hourly rate and must be paid that rate for each and every hour of work instead of the provisions of clause 29.2(c), 31.1 and 31.2.”

[5] Clause 29.2(c) of the current Sugar Industry Award 2010 deals with weekend rates and clauses 31.1 and 31.2 deal with overtime. The issue identified by the NFF is that there has been a change to the single contract hourly rate provision in that clause 17.2(a) of the Future Sugar Industry Award 2020 no longer excludes overtime provisions for employees being paid such rate.

[6] Clause 17.2(a) of the Future Sugar Industry Award 2020 was one of a number of clauses that were agreed in principle between the parties in early 2016 and was included in a Report I gave to a Full Bench of the Commission in [2017] FWCFB 5536. The clause was endorsed by that Full Bench.

[7] The NFF now contends that there is an error in the previously agreed clause 17.2(a) in that it omits the previous reference to overtime provisions. The NFF seeks a correction to the clause by inserting reference to clauses 29.1 and 29.2 (which deal with overtime) to reflect the current position that field sector employees being paid on a single contract hourly rate basis are not entitled to overtime payments in addition to the single contract hourly rate of 115% of the minimum hourly rate.

[8] After considering the material referred to by the NFF in its 9 June 2020 email, my provisional view is that there is an error in the proposed clause which was included in my Report to the Full Bench in [2017] FWCFB 5536 and that error should be corrected before the Future Sugar Industry Award 2020 commences operation on 18 June 2020. Given the deadline for the commencement of the Award and the date on which the Commission was informed of the issue, the parties are requested to provide their views in relation to this matter by 4.00 pm on Monday 15 June 2020.

[9] Responses should be provided by email to chambers.asbury.dp@fwc.gov.au. If no opposition is indicated by any party, clause 17.2(a) of the Future Sugar Industry Award 2020 I will inform the presiding Member on the Full Bench in [2017] FWCFB 5536 of the error and that it may be corrected by inserting reference to clauses 29.1 and 29.2.

DEPUTY PRESIDENT

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