| [2020] FWCFB 6633 |
| FAIR WORK COMMISSION |
STATEMENT |
Fair Work Act 2009
s.156—4 yearly review of modern awards
4 yearly review of modern awards — Food, Beverage and Tobacco Manufacturing Award 2010
(AM2019/17)
JUSTICE ROSS, PRESIDENT |
MELBOURNE, 11 DECEMBER 2020 |
4 yearly review of modern awards - finalisation of Exposure Drafts and variation determinations - Food, Beverage and Tobacco Manufacturing Award 2010 - submissions received - modern award varied.
[1] This Statement deals with the finalisation of the variation determination for the Food, Beverage and Tobacco Manufacturing Award 2010 (the Food Manufacturing Award).
[2] This Full Bench has been constituted to oversee the process for finalising the exposure drafts produced during the 4 yearly review of modern awards and the consequent variation of each modern award. For that purpose, the modern awards were divided into 3 Tranches. The Food Manufacturing Award was designated as a Tranche 3 award. 1
[3] In a decision 2 issued 6 October 2020 (the October 2020 decision), we finalised a number of outstanding issues relating to the awards in Tranche 3, including the Food Manufacturing Award.3 It was noted in the October 2020 decision that there were pending determinations to be issued by the Full Bench dealing with the overtime for casuals matter (AM2017/51). To avoid any potential confusion arising between the overtime for casuals matter (AM2017/51) and this finalisation matter, we determined not to issue the variation determination for the Food Manufacturing Award until after the determinations in AM2017/51 were finalised.4
[4] In a decision 5 issued 10 November 2020 (the November 2020 decision), we noted that the determinations in AM2017/51 had been finalised and incorporated into the final variation determination for the Food Manufacturing Award,6 along with the determinations adjusting the expense related allowances.7
[5] The final variation determination 8 for the Food Manufacturing Award was published concurrently with the November 2020 decision. The final variation determination will commence operation on 11 December 2020.
[6] The November 2020 decision advised interested parties that they had until 20 November 2020 to file an objection to any of the amendments to the Food Manufacturing Award outlined in either the October 2020 decision or the November 2020 decision.
[7] The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) filed a submission 9 on 23 November 2020 and the Australian Industry Group (Ai Group) filed a submission in reply10 on 25 November 2020.
[8] The AMWU submission relates to clause 23.1(f) of the final variation determination which reads as follows:
“23.1 Definition of overtime…
(f) Where clause 23 refers to an overtime rate as being calculated as a percentage of the ordinary hourly rate, that reference will (for a casual employee) instead be taken to be a reference to the casual ordinary hourly rate if the entitlement is applicable to a casual employee.”
[9] The AMWU submitted that the inclusion of the words “if the entitlement is applicable to a casual employee” arguably introduces an ambiguity as to whether overtime is applicable to casuals. 11 The AMWU submitted that it has been determined conclusively through the 4 yearly review that casuals have the same entitlement to overtime as other employees.12 The AMWU submitted that this is not controversial among the main industrial parties with an interest in this award.13
[10] The AMWU submitted that the Full Bench should consider varying clause 23.1(f) as follows:
“23.1 Definition of overtime…
(f) Where clause 23 refers to an overtime rate as being calculated as a percentage of the ordinary hourly rate, that reference will (for a casual employee) instead be taken to be a reference to the casual ordinary hourly rate. if the entitlement is applicable to a casual employee.” (amendments underline and strikethrough)
[11] The Ai Group objected to the submissions of the AMWU. The Ai Group submitted that the wording the AMWU now seeks to remove was proposed by the Ai Group in relation to another award, the Manufacturing and Associated Industries and Occupations Award 2010 (the Manufacturing Award) in a submission filed 23 December 2019. 14 The Ai Group submitted that in a decision15 issued 24 December 2020, the Full Bench issued the provisional view that the additional wording proposed by Ai Group was appropriate.16
[12] The Ai Group submitted that
“The wording that the AMWU is seeking to have deleted in clause 23.1(f) is important because not all provisions in the award are applicable to casuals. For example, clause 23.10 (Rest period after overtime) does not apply to casuals and provides for an entitlement expressed as a percentage of the ‘ordinary hourly rate’. The AMWU’s proposed variation could cause confusion” 17
[13] The Ai Group noted that similar wording appears in the final variation determination at clause 10.5. The Ai Group submitted that this is consistent with provisions appearing in clauses 11.2(d) and 32.1(f) of the Manufacturing Award.
[14] We agree with the submissions of Ai Group, that clause 23.10 (Rest period after overtime) does not apply to casuals given the wording contained in clause 23.10(b). As such, there is an overtime rate contained within clause 23, expressed as a percentage of the “ordinary hourly rate” which does not apply to casuals. We agree that removing the wording as proposed by the AMWU could cause confusion.
[15] We have determined not to amend the final variation determination. As set out in the November 2020 decision and as indicated in item 2 of the final variation determination, the variation will take effect from 11 December 2020.
PRESIDENT
Printed by authority of the Commonwealth Government Printer
<PR725298>
3 [2020] FWCFB 5307 at [23]; [95] – [106]
4 [2020] FWCFB 5307 at [103] – [105]
6 [2020] FWCFB 5954 at [4]
7 [2020] FWCFB 5954 at [5]
9 AMWU, Submission, 23 November 2020
10 Ai Group, Submission, 25 November 2020
11 AMWU, Submission, 23 November 2020 at [13]
12 AMWU, Submission, 23 November 2020 at [14]
13 AMWU, Submission, 23 November 2020 at [14]
14 Ai Group, Submission, 25 November 2020 at page 1
16 [2019] FWCFB 8569, [255] – [256]
17 Ai Group, Submission, 25 November 2020