| [2021] FWCFB 2820 |
| FAIR WORK COMMISSION |
STATEMENT |
Fair Work Act 2009
s.157–FWC may vary etc. modern awards if necessary to achieve modern awards objective
Award flexibility–General Retail Industry Award 2020
(AM2021/7)
JUSTICE ROSS, PRESIDENT |
MELBOURNE, 18 MAY 2021 |
Award Flexibility – Part-time employment – part-time additional hours – General Retail Industry Award 2020
Background
[1] This Full Bench is dealing with a Joint Application by the Shop, Distributive and Allied Employees’ Association (SDA), the Australian Workers’ Union (AWU) and Master Grocers Australia (MGA), and an alternative proposal by Australian Business Industrial, NSW Business Chamber and the Australian Chamber of Commerce and Industry (ABI) to amend the provisions applying to part-time employees in the General Retail Industry Award 2020 (Retail Award). Although they take differing approaches, both the joint application and ABI proposal are directed at achieving some additional flexibility in connection with part-time employees, to enable agreements to be reached between an employer and certain part-time employees to work more ordinary hours than the hours agreed upon commencement of employment under clause 10.5 of the Retail Award, up to a maximum of 38 ordinary hours per week.
[2] Our most recent decision, [2021] FWCFB 1608, sets out the procedural history of the matter (the 24 March decision).
[3] The Joint Application includes a proposal to facilitate the working of additional hours by part-time employees by individual agreement by reference to specific agreed shifts or for specific hours for an agreed period. 1 ABI and others submit that the current clause 10.6 of the Retail Award already allows employers and part-time employees to agree that the employees will work additional hours of work, in excess of their agreed regular pattern of work, paid at their ordinary hourly rate.2
[4] In the 24 March decision, we accepted that the proper construction of clause 10.6 of the Retail Award is a central issue to our consideration of the Joint Application and ABI’s alternative proposal, saying:
‘[118] It is apparent that there is no unanimity of view as to how clause 10.6 operates in relation to the working of additional hours and the evidence suggests that the relevant award provisions are poorly understood by some retail sector employers. We agree with the MGA that the existing terms lack clarify. Further, such lack of clarity is inconsistent with the need to ensure ‘a simple, easy to understand … modern award system’ (s.134(1))(g)).
[119] The evident confusion in the operation of the current award and the impact of the COVID-19 pandemic on the Retail sector (as documented in the Information Note referred to earlier) warrant consideration being given to the variation of the Retail Award to provide certainty regarding the circumstances in which part-time employees may work ‘additional hours’ (that is in addition to the agreed hours under clause 10.5), without those hours being regarded as overtime. As the Commission has noted previously, a modern award ‘should be able to be read by an employer or employee without needing a history lesson or paid advocate to interpret how it is to apply in the workplace’.
[120] In our view clause 10 is uncertain and requires variation to resolve that uncertainty. Without clarification, any additional arrangements proposed by the parties are likely to also be uncertain, and the relationship with the award provisions more generally, problematic.’
[5] We went on to set out the next steps for resolving the uncertainty about the operation of clause 10 as follows:
‘[156] As mentioned earlier, the proper construction of the existing clause 10 is a threshold issue in our consideration of both the Joint Application and the ABI proposal. Further:
1. It is our view that clause 10 is uncertain and requires variation to resolve that uncertainty.
2. It is our provisional view that there may be merit in the variation of the Retail Award to introduce a mechanism whereby a part-time employee who regularly works additional hours may request that their guaranteed hours be reviewed and increased, and their employer cannot unreasonably refuse such a request.
[157] The next step in progressing these issues will be for Commissioner Hampton to convene a further conference to discuss the meaning and intent of clause 10 of the Retail Award and our provisions view regarding the variation of the Retail Award (at [155] above).
[158] In particular, the conference participants will be invited to address the following issues:
• Does clause 10.6 permit an agreement between an employer and a part-time employee to vary the regular pattern of work they have agreed under clause 10.5 so that the part-time employee may work additional ordinary hours (paid at the employee’s ordinary time rate)?
• Does clause 10.6 permit an agreed permanent variation to the regular pattern of work agreed under clause 10.5?
• In the context of clause 10 as a whole, does clause 10.6 permit an agreed ad hoc or temporary variation to the regular pattern of work agreed under clause 10.5? If permitted, can such a temporary variation:
- increase the ordinary number of ordinary hours to be worked on a particular day?
- vary the days of the week on which the employee will work?
- vary the start and finish times?
- vary when meal breaks are taken and their duration?
• Must a clause 10.6 variation be ‘in writing’?
• Does ‘in writing’ include by electronic means, such as a text message?
• If clause 10.6 permits the agreed temporary variation of a regular pattern of work does the variation agreement have to be recorded in writing before the additional hours (are) worked?
• To what extend does clause 15 apply to variations agreed under clause 10.6? Which elements of clause 15 apply?
• How does an agreed variation to work ‘additional hours’ interact with the minimum engagement term?
• In what other ways does clause 10 give rise to uncertainty?
[159] To inform the discussion at the conference, we draw the parties’ attention to the Information Note we published today regarding the history of the part-time provisions in the Retail Award.
[160] We intend to address the uncertainty attending the operation of clause 10 and in particular the parameter regarding the working of additional ordinary hours as a matter of priority.
[161] We propose to act on our own initiative under s.160(2)(a) to address these issues.
[162] The conference process set out above will conclude by no later than Friday 9 April. We expect that a Report will then be provided by Commissioner Hampton. We will publish a provisional draft variation in the week commencing Monday 12 April 2021. Parties will be given an opportunity to file submissions in respect of any such proposal.’
[6] Commissioner Hampton convened a conference to discuss the meaning and intent of clause 10 of the Retail Award on 20 April 2021. 3
[7] On 28 April 2021, Commissioner Hampton issued a Further Report to the Full Bench (Further Report) which summarised the submissions lodged by conference participants in response to the issues identified at paragraph 158 of the 24 March decision. The Further Report included the following observations to assist the Full Bench:
‘[33] In assessing the present operation of the Retail Award, and in determining whether a variation to the part-time provision is necessary in response to the joint application and the other proposals, it is apparent that there are ambiguities, or at the very least uncertainties, arising from the present award terms. For the reasons set out by the Full Bench, any variation should endeavour to clarify the proper application of the award for the benefit of those who are covered by its terms.
[34] That clarification should ideally make clear:
• The intended operation of clause 10.6, and if thought appropriate, that a variation to the hours and arrangements originally agreed upon the commencement of employment under clause 10.5 may be varied on an ad hoc basis, for a temporary defined period, or as an ongoing replacement agreement.
• The intended operation of clause 10.10 and the interactions between clause 10 and clause 15 for part-time employees. This would include consideration as to whether there should be a distinction between rostered hours and the (clause 10.5/clause 10.6) agreed hours parameters and whether the limit in (unilateral) changes to the agreed hours through roster variations is intended to be restricted only to the total number of hours to be worked. Further, the provisions might usefully also clarify which of these hours by a part-time employee are to be treated as ordinary hours not attracting overtime.
[35] In assessing any potential amendments, consideration might also be given to a number of less fundamental drafting issues raised by the parties, including:
• Confirming when and in what form written agreements are required;
• Reviewing the use of similar terms and concepts to ensure consistency where the same meaning is intended; and
• Other proposals set out in the written submissions of the parties.
[36] Further, the challenge will be to provide this clarity in a form that is consistent with the purpose of, and structure provided by, the recent plain language exercise completed by the Commission in connection with the Retail Award.
[37] As set out in the recent Full Bench decision, any draft determination being considered by the Commission in light of this process should be provided to the parties for further submissions before any final decision is made.’ [Footnotes omitted]
[8] While the conference process has identified some limited points of consensus about the interpretation of clause 10, the views expressed by some parties during the conference differ to the views those parties have expressed in other forums.
[9] In response to the Further Report, on 30 April 2021 the SDA made further submissions on the interaction between clauses 10.6 and 15.9 of the Retail Award. These submissions referred to Re Leading Age Services Australia NSW – ACT [2014] FWCFB 129 (Re Leading Age Services) and TWU v Qantas Airways Limited [2008] AIRCFB 1198 (TWU v Qantas). The SDA submits that these decisions suggest that there was no intention that a unilateral roster change made by an employer could undermine the operative protections in relation to clause 10.6 variations which are required to be underpinned by agreement. We note here that as yet no opportunity has been provided to other interested parties to respond to the SDA’s submission. We later express some provisional views with respect to the submissions put. All parties will have an opportunity to comment on our provisional view.
Consideration
[10] As mentioned previously, the proper construction of clause 10 of the Retail Award is a threshold issue to the consideration of both the joint application and competing proposals. This threshold issue includes whether clause 10.6 already provides employers and their part-time employees with the flexibility to agree to ad hoc variations to work hours in addition to those agreed under clause 10.5, without the employer having to pay overtime rates.
[11] Clauses 10.5 and 10.6 state:
‘10.5 At the time of engaging a part-time employee, the employer must agree in writing with the employee on a regular pattern of work that must include all of the following:
(a) the number of hours to be worked each day; and
(b) the days of the week on which the employee will work; and
(c) the times at which the employee will start and finish work each day; and
(d) when meal breaks may be taken and their duration.
10.6 The employer and the employee may agree to vary the regular pattern of work agreed under clause 10.5 with effect from a future date or time. Any such agreement must be in writing.’
[12] The conference participants were invited to express their views on whether clause 10.6 would permit:
• a variation to the regular pattern of work agreed under clause 10.5 so that the employee works additional hours paid at ordinary time rates
• a permanent variation to the regular pattern of work agreed under clause 10.5
• an ad hoc or temporary variation to the regular pattern of hours agreed under clause 10.5, and if so, whether such a temporary variation could increase the number of ordinary hours worked or vary the days of the week on which the employee will work, or their start and finish times or when meal breaks are taken and their duration.
[13] As observed in the Further Report, subject to one point of qualification by the AWU, 4 all parties agreed that such variations could be made under clause 10.6. We agree. Clauses 10.5(a) to (d) set out what must be included in a regular pattern of hours agreed under clause 10.5. Clause 10.6 is not expressed to limit the aspects of such a regular pattern of hours that can be varied, which includes the number of hours to be worked each day. Nor does clause 10.6 place any temporal limitations on when such variations may operate.
[14] Although the parties making submissions agreed on this aspect of the construction of clause 10.6, we consider that there is merit in amending the clause to make clear that an employer and part-time employee may agree to both temporary and permanent variations to the employee’s regular pattern of hours agreed under clause 10.5. Temporary variations may include variations affecting only a single shift, and we propose to include an example in clause 10.6 to illustrate this.
Agreed variations to the regular pattern of work to be recorded in writing
[15] Conference participants were invited to address the following points:
• Must a clause 10.6 variation be ‘in writing’?
• Does ‘in writing’ include by electronic means, such as a text message?
• If clause 10.6 permits the agreed temporary variation of a regular pattern of work does the variation agreement have to be recorded in writing before the additional hours (are) worked?
[16] The Further Report observes that all parties making submissions concurred that an agreement under clause 10.6 must be recorded in writing and that this includes by electronic means. 5 It also observes that all parties recognised that the agreement must be made in advance of additional hours being worked, and that most parties considered, while it does not expressly state that the agreement must be recorded in writing prior to the additional hours being worked, this was likely the intention of the award.6
[17] It is our provisional view that clause 10 should be amended to make clear that where an agreement is to be recorded ‘in writing’, this may be done by electronic means, for example through an exchange of emails or text messages.
[18] We recognise that the requirement to record a clause 10.6 agreement in writing, and the obligation in clause 10.7 that an employer keep a copy of such an agreement and provide it to the employee, place a regulatory burden on the employer. We also recognise the need to safeguard employees against being pressured into agreeing to vary their regular pattern of work when their employer needs additional hours worked but is not willing to pay overtime. We consider that the Full Bench’s observations at paragraph [34] of [2015] FWCFB 6847, are apt, albeit they were made in the context of time off in lieu agreement. There the Full Bench said:
‘[34] In circumstances where TOIL is taken at the ordinary time rate, that is an hour TOIL for each hour of overtime worked, employers have a financial incentive to encourage such arrangements. It is important that such a financial incentive not result in employees being pressured into entering TOIL arrangements. The requirements for a separate written agreement both evidences the consensual nature of the arrangement which has been entered into and provides an important safeguard for employees.
[35] We accept that the requirement for a separate written agreement on each occasion gives rise to a regulatory burden…’
[19] It is our provisional view that, to balance the regulatory burden of the record keeping requirements in clause 10 against the need to provide adequate safeguards for employees, clause 10.6 should be amended to:
• make clear that a variation under clause 10.6 must be agreed before it takes effect, and retrospective agreement cannot be sought, and
• provide that a clause 10.6 agreement must be recorded in writing before it takes effect, save where an ad hoc variation is made for a single shift, in which case the agreement must be recorded in writing before the end of the affected shift.
[20] Further, we consider that any regulatory burden is reduced by the inclusion of a note to the effect that an agreement under clause 10.6 could be recorded in writing through an exchange of emails, text messages or by other electronic means.
[21] Conference participants were invited to address the extent to which clause 15 applies to variations agreed under clause 10.6, and which elements of clause 15 apply.
[22] The Further Report reflects that, while parties making submissions agreed that clause 15 applies in general terms to part-time arrangements, there is a significant diversity of views about how clause 15 applies to part-time arrangements. 7 In particular, there is a diversity of views on how clause 15.9 applies to part-time arrangements.8
[23] As we observed above, following publication of the Further Report, the SDA made further submissions drawing our attention to two Full Bench decisions that considered the interaction between similar provisions to clause 10 and clause 15 of the Retail Award: TWU v Qantas and Re Leading Age Services. Those decisions are informative.
[24] In TWU v Qantas, a Full Bench considered the circumstances in which a part-time employee’s roster could be changed under the Transport Workers Union (Qantas Airways Ltd) Enterprise Agreement VI, which included specific provisions in respect of when a part-time employee works, and general provisions about changes to shift work rosters. In that decision, the Full Bench said:
‘[13] Clause 28.4.3(c), on the other hand, is difficult to reconcile with cl.18.5.8. Clause 28.4.3(c) provides that Qantas may require an individual employee to change his or her roster. Clause 18.5.8 provides for a change in rostered shift hours for a part-time employee but in limited circumstances and only by agreement. There is a direct conflict between the provisions where the circumstances in cl.18.5.8 are present but the employee refuses to agree to a roster change. On Qantas’ construction, it (Qantas) could require the part-time employee to change his or her roster pursuant to cl.28.4.3(c) despite the employee’s lack of consent, even though consent is required for change under cl.18.5.8. Furthermore, if Qantas initiated the change less than 2 days before it was to occur, and the employee agreed to the change, there would be a direct conflict between cl.18.5.8, which provides for single time, and cl.28.4.3(c) which provides for double time.
[14] Counsel for Qantas sought to resolve these conflicts on the basis that the two provisions were intended to cover different situations and were options available to Qantas. We do not agree. In our view the provisions conflict in a significant way. The conflict should be resolve by according greater weight to the provisions which deal specifically with changes in part-time hours. To do otherwise would render those provisions almost meaningless. Clause 28.4.3(c) should be interpreted in such a way as to confine its operation to changes in rosters for individual full-time employees. The rostered hours of part-time employees may only be changed in accordance with cl.18.5.8.’
[25] In Re Leading Age Services, the Full Bench considered the interaction of clauses 10.3(c) and 22.6(c) of the Aged Care Award 2010, which are analogous to clauses 10.6 and 15.9 of the Retail Award. There the Full Bench said:
‘[18] Insofar as there is an interpretational contest as to how clauses 10.3(c) and 22.6(c) interrelate with each other, we consider it appropriate to express our views on the subject. Our conclusion is that the effect of clause 10.3(c) is to require any changes to the agreement entered into before the commencement of employment pursuant to clause 10.3(b), including any changes to the number of hours worked each week, the days of the week the employee will work and the starting and finishing times each day, to be by further written agreement, and that clause 22.6(c) does not permit the employer to make unilateral changes in respect of any of these matters for part-time employees by use of its right to change the roster on the provision of the requisite notice. The reasons for our conclusions are as follows.
[19] Clause 10.3 contains a scheme of provisions specific to the subject matter of part-time employment. Applying the generalia specialibus non derogant principle of interpretation, the specific provisions of clause 10.3 should be read as prevailing over other more general provisions of the Award in the case of inconsistency unless the context dictates otherwise. Clause 10.3(a), the commencing provisions in the scheme, defines a part-time employee as one who is “engaged to work less than full-time hours of an average of 38 hours per week and has reasonably predictable hours of work” (underlining added). This requirement for reasonable predictability in hours of work stems, we consider, from the originating concept of part-time employment as being suitable for and attractive to persons who have other significant and reasonably predictable family, employment and/or educations commitments and therefore require some certainty as to the days upon which they work and the times they start and finish work. It follows that the other provisions of the Award applying to part-time employees must so far as the language permits be read as giving content to the definitional requirement of reasonable predictability in hours of work.
…
[27] The appellant’s submissions concerning the effect of clause 22.6(c) and its relationship with clause 10.3(c) suffer from two major flaws. The first is that it leads to a result whereby the requirement for “reasonably predictable hours of work” in clause 10.3(a) is left without any substance. Under the appellants’ approach, an employer, notwithstanding the agreement reached prior to the commencement of employment concerning inter alia the days upon which work is to be performed and the starting and finishing times of work on each day, could unilaterally vary that agreement via a roster change at any time after employment commenced, and vary it as frequently thereafter as suited the employer, provided the required notice was given. This would not constitute predictability in employment in any reasonable sense.
[28] The second is that the appellants’ approach fails to take into account clause 22.6(d), which provides that that “this clause” (that is, clause 22.6, which includes the roster change provision in clause 22.6(c)) does not apply where the only change to the roster is the mutually agreed addition of extra hours for a part-time employee where the employee still has two rostered days off in the week or four in the fortnight. Clause 22.6(d), read in accordance with its ordinary meaning, demonstrates that where the roster of a part-time employee is changed because of an agreed addition of extra hours which does not meet the specified condition concerning the number of rostered days off in a week or a fortnight, the provisions of clause 22.6 apply - that is, the requisite notice period of the roster change would have to be given. That means, contrary to the appellants’ submissions, that clause 22.6(c) does have application, subject to the exception in clause 22.6(d), to roster changes involving changes to the number of a part-time employee’s hours, not just the days upon which such hours will be worked and the starting and finishing times on those days. It also indicates that clause 22.6 operates subject to clause 10.3(c), in that changes to part-time employee hours which have been agreed under clause 10.3(c) must still be displayed on the roster and the requisite notice given of the change unless the exception in clause 22.6(d) applies.’ [Emphasis added]
[26] A key difference between the clauses considered in Re Leading Age Services and the clauses before us is that the specific scheme in clause 10.3 of the Aged Care Award 2010 concerning part-time employees did not provide for roster variations by the employer. The rostering provisions sat outside clause 10.3. In contrast clause 10.10(a) of the Retail Award specifically provides for an employer to vary the roster of a part-time employee. Separate rostering provisions are in clause 15.
[27] It is our provisional view that Re Leading Age Services and TWU v Qantas do not support the view that a part-time employee’s regular pattern of work can only be changed by agreement, however they do support the view that clause 10 of the Retail Award ‘covers the field’ regarding when a part-time employee’s regular pattern of hours can be changed. The conflict between provisions in clause 10 and clause 15.9 discussed below supports this view.
[28] Clauses 10.6, 10.10(b) and 15.9(d) all provide for an employee’s regular pattern of work or roster to be changed by mutual agreement. They provide:
‘10.6 The employer and the employee may agree to vary the regular pattern of work agreed under clause 10.5 with effect from a future date or time. Any such agreement must be in writing.
10.10(b) The roster of a part-time employee, but not the number of hours agreed under clause 10.5, may be changed at any time by mutual agreement between the employer and the employee.
15.9(d) Due to unexpected operational requirements, the roster of an employee may be changed by mutual agreement by the employer and employee at any time before the employee arrives for work.’ [Emphasis added]
[29] Clause 10.6 deals with changes to an employee’s regular pattern of work, while clause 10.10 and 15.9 deal with roster changes. ‘Roster’ is not defined in the Retail Award, but clause 15.9(b) provides that for each employee the roster must show the number of ordinary hours to be worked by them each week, the days of the week on which they will work, and the times at which they start and finish work. There is significant cross-over between what must be included an employee’s regular pattern of work agreed under clause 10.5, and what must be included in an employee’s roster.
[30] An agreed change to a part-time employee’s roster under clause 10.10(b) can be made ‘at any time’ by mutual agreement, save that the number of agreed hours cannot be altered. There is no limit on the circumstances in which the agreement can be reached. In contrast, an agreed roster change made under clause 15.9(d) can only be made ‘due to unexpected operational requirements’, and must be made ‘before the employee arrives for work’. An agreed variation to an employee’s regular pattern of work agreed under clause 10.6, which would have the effect of varying the employee’s roster, can only be made with effect from a future date or time, and, unlike changes under clause 10.10(b) and 15.9(d), must be in writing.
[31] Clause 10.10(a) and 15.9(e) provide for when an employer may unilaterally vary an employee’s roster, as follows:
‘10.10(a) The roster of a part-time employee, but not the number of hours agreed under clause 10.5, may be changed by the employer giving the employee 7 days, or in an emergency 48 hours, written notice of the change.
NOTE: Clause 15.7 contains additional rostering provisions.
15.9(e) The employer may make permanent roster changes at any time by giving the employee at least 7 days’ written notice of the change. If the employee disagrees with the change, the period of written notice of the change required to be given is to be extended to at least 14 days in total.’ [Emphasis added]
[32] Clause 15.9(g) and (h) indicate that temporary variations to an employee’s roster can be made, subject to overtime being payable for additional hours worked. However, clause 10.10(a) does not permit changes to a part-time employee’s roster that alter the number of hours agreed under clause 10.5. Further, the note at clause 10.10(a) refers to additional rostering provisions in clause 15.7, but does not mention clause 15.9.
[33] Clause 10.10(c) and 15.9(i) provide protection to employees from roster changes intended to avoid award entitlements. They provide:
‘10.10(c) However, the roster of a part-time employee must not be changed from week to week or fortnight to fortnight or to avoid any award entitlements.
15.9(i) An employer must not change the roster of an employee with the intention of avoiding payment of shiftwork or penalty rates, loadings or other applicable benefits. If the employer does so, the employee must be paid any shiftwork or penalty rates, loadings or benefits as if the roster had not been changed.’
[34] If both clause 10.10(c) and 15.9(i) were intended to apply to part-time employees, clause 10.10(c) would be otiose.
[35] It is our provisional view that the Retail Award clause 15.9 should be amended to make clear that provisions in clause 15.9 for roster changes do not apply to part-time employees. Further clarity would be achieved by deleting clause 10.10(b). Such amendments would mean that clause 10.6 would provide the only way in which agreed variations to an employee’s regular pattern of work can be made, and clause 10.10 would provide the only way in which an employer could change an employee’s regular pattern of work.
[36] The conference parties were invited to address how an agreed variation to work additional hours would interact with the minimum engagement term in clause 10.9.
[37] Clause 10.9 provides:
‘The minimum daily engagement for a part-time employee is 3 consecutive hours.’
[38] The Further Report observes:
‘[24] It was common ground that a part-time employee’s regular pattern of work must include a minimum of 3 hours (whether ordinary hours, overtime or a combination of both) on each day that the employee is to work. This includes a regular pattern of work as varied under clause 10.6. An employee and employer could agree to work fewer than 3 additional hours provided those hours are continuous with existing hours, and at least 3 hours in total are worked/paid.’
[39] Our provisional view is that clause 10.9 does not require clarification.
[40] The conference parties were invited to address other ways in which clause 10 gives rise to uncertainty. Their submissions are summarised at [26] and [27] of the Further Report.
[41] The matters raised by the conference parties may broadly be grouped into 4 categories:
1. Whether the ability to vary a part-time employee’s regular pattern of work is consistent with the originating concept of part-time employment identified by the Casual Employment and Part-Time Employment decision. Attention was brought to the definition of a part-time employee in clause 10.1 as one whose hours are ‘reasonably predictable’, and to the use of the term ‘regular pattern of work’ in clause 10.5.
2. There is ambiguity about whether overtime applies to work performed by a part-time employee on days and times outside their agreed pattern of work.
3. The language used across the Retail Award is not consistent.
4. Some employers were unaware of their obligations to consult under clause 35 if they propose to change the regular roster or ordinary hours of work of an employee. 9
[42] As to point 1 above, we note that the Full Bench in the Casual employment and Part-time employment Decision 10 described, at [97], ‘the distinctive features of the award regulation of part-time work’ as ‘the requirement for written agreement specifying the number of hours to be worked and the days and times in the week when these hours are to be worked, alterable by written agreement only’. The capacity for an employer and their part-time employee to vary, by written agreement under clause 10.6, the part-time employee’s regular pattern of work is not inconsistent with this concept. In particular, the ability to make agreed variations to a regular pattern of work is not inconsistent with the concept that a part-time employee’s hours of work be reasonably predictable – as there is no requirement for an employee agree to vary their regular pattern of work.
[43] Further, for the reasons set out below, we consider that an employer’s ability to unilaterally alter a part-time employee’s days and times in the week when hours are to be worked is limited.
[44] As to point 2, we consider that the ambiguity referred to arises from what is meant by ‘the number of hours agreed under clause 10.5’.
[45] Clause 10.8 provides that a part-time employee must be paid overtime rates for any time worked in excess of ‘the number of hours agreed under clause 10.5’. As set out at [11] above, clause 10.5(a) and (b) respectively require that a regular pattern of work include ‘the number of hours to be worked each day’ [emphasis added] and ‘the days of the week on which the employee will work’. On one reading, clause 10.5(a) necessarily requires a number of hours to work to be linked to a particular day of the week (e.g. the employee agrees to work 5 hours on a Monday and Wednesday and 7 hours on a Friday). This reading means clause 10.5(b) is unnecessary, but it is difficult to see how the words ‘to be worked each day’ in clause 10.5(a) can sensibly be otherwise read.
[46] If ‘the number of hours agreed under clause 10.5’ encompasses both the day of the week on which hours will be worked, and the number of hours that will be worked that day, then overtime would be payable under clause 10.8 if an employee was required to work:
• more hours on a particular weekday than they had agreed to work, or
• on a day that they had not agreed to work.
[47] For example, an employee’s written agreement under clause 10.5 says that the employee will work 5 hours on a Monday, Wednesday and Friday and no hours on any other days of the week. If the employee works 6 hours on a Monday, they are entitled to be paid at overtime rates for the sixth hour. If they work 3 hours on a Tuesday, they are entitled to be paid overtime rates for all 3 hours.
[48] The reading above also limits the aspects of an employee’s roster that can be varied under clause 10.10 to the employee’s start and finish times of work, because ‘the number of hours agreed under clause 10.5’ cannot be varied under clause 10.10. This means that an employer could not vary the days of the week on which the employee works, nor the number of hours on each of those days. This reading is also consistent with the requirement in clause 10.1 of the Retail Award that a part-time employee’s hours of work be reasonably predictable, and with the Full Bench’s description of ‘the distinctive features of the award regulation of part-time work’ 11 mentioned at [41] above than a reading that permits an employer to unilaterally vary the days, albeit on notice, that a part-time employee is rostered to work.
[49] It is our provisional view that clause 10.5 should be amended to more clearly reflect the reading above that the ‘number of hours agreed under clause 10.5’ means the number of hours the employee has agreed to work on each particular day of the week.
[50] We consider that clause 10 should be amended to address points 3 and 4.
[51] It is our provisional view that the Retail Award be varied on the Commission’s own motion under ss. 157 and 160 of the Fair Work Act 2009 (Fair Work Act) in accordance with our provisional views set out above at [17], [19], [34], [38], [43] and [48]. It is our provisional view that such variation is necessary to ensure that the Retail Award achieves the modern awards objective in s.134 of the Fair Work Act.
[52] A draft determination is set out at Attachment A to this Statement.
[53] In the 24 March decision, in addition to considering the need to clarify clause 10.6, we also expressed the provisional view that there may be merit in varying the Retail Award to introduce a mechanism whereby a part-time employee who regularly works additional hours may request that their guaranteed hours be reviewed and increased, and their employer cannot unreasonably refuse such a request. We would make such a variation under s.157 of the Fair Work Act. The draft determination includes such a mechanism at clause 10.11.
[54] The mechanism referred to above has the following elements in common with the Joint Application and ABI proposal:
• A part-time employee who has regularly worked [additional agreed hours – Joint Application], [Voluntary Additional Hours – ABI proposal], or whose [guaranteed hours are less than the ordinary hours that the employee has regularly worked – draft determination] may request in writing that the employer vary the agreement under clause 10.5 to reflect the ordinary hours regularly being worked.
• The employer must respond in writing to the employee’s request within 21 days.
• An employee’s request can only be refused on ‘reasonable business grounds’.
• Before refusing a request the employer must discuss the request with the employee and [genuinely try to reach agreement – draft determination and Joint Application] or [explore whether they can reach agreement – ABI proposal].
• If the employer agrees to a request then the employer and employee must vary the agreement under clause 10.5 to reflect the employee’s new regular pattern of work.
[55] The draft determination and ABI proposal differ from the Joint Application in providing a 12-month rather than a 6-month minimum period before a request can be made. It is our provisional view that a 12 month period is appropriate as such a period will tend to reduce the impact of seasonal fluctuations. A 12 month review period is also consistent with similar review clauses in other modern wards.
[56] The Joint Application also provides that the employer and employee parties to an ‘additional hours agreement’ consent to a dispute about Schedule I being settled by the Fair Work Commission through arbitration. The draft determination and ABI proposal do not provide for arbitration, although the draft determination includes a note to draw attention to clause 36 of the Retail Award, which deals with dispute resolution.
Next Steps
[57] Interested parties have until 4pm on Monday 31 May 2021 to file any submissions on the draft determination and our provisional views. Any submissions in reply are to be filed by 4pm on Monday 7 June 2021. All submissions are to be sent to amod@fwc.gov.au.
[58] We propose to finalise this matter ‘on the papers’ having regard to the submissions filed.
PRESIDENT
Printed by authority of the Commonwealth Government Printer
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1 [2021] FWCFB 1608 at [36].
2 [2021] FWCFB 1608 at [100].
3 The schedule for the conference process set out in [2021] FWCFB 1608 was delayed by the Commission at the request of various parties.
4 Further Report at [14].
5 Further Report at [16].
6 Further Report at [17].
7 Further Report at [19].
8 Further Report at [20] – [21].
9 RAFFWU submission at para 4.
